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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: FEBRUARY 23, 2016 SUIT NO. NICN/LA/293/2013 BETWEEN Abayomi Adesunbo Adetoro - Claimant AND Access Bank Plc - Defendant REPRESENTATION O. A. Okunowo, with O. Ajibo, for the claimant. Mrs. Grace Omole, for the defendant. JUDGMENT On 5th June 2013, the claimant took up a complaint (with the accompanying originating processes – statement of claim, list of witnesses, deposition on oath of the claimant as witness, list of exhibits and copies of the exhibits). By paragraphs 30 and 31 of the statement of claim, the claimant is praying for the following reliefs – 1. …the sum of N3,193,100.00 against the defendant being the outstanding sum of the claimant’s terminal gratuity, together with interest thereon at the rate of 25% per annum, from the 20th March, 2012, until judgment and final liquidation of the said sum. 2. …against the defendant, his solicitor’s professional fees and cost in the sum of N500,000.00 (Five Hundred Thousand Naira) only. The defendant entered formal appearance and then filed its defence processes (the statement of defence,, list of witnesses, list of exhibits, witness statement on oath and copies of the documents to be relied upon at the trial). The claimant reacted by filing a reply to the statement of defence, further deposition on oath of the claimant, list of additional documents and copies of the additional documents. At the trial, the claimant testified on his own behalf as CW, while Nyema Dike, one of the Legal Officers of the defendant, testified for the defendant as DW. At the close of trial, parties were asked to file and serve their respective written addresses starting with the defendant in accordance with Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This they did. The defendant’s final written address is dated and filed on 8th April 2015, while that of the claimant is dated 1st May 2015 but filed on 4th May 2015. The defendant did not file any reply on points of law. The case of the claimant is that he was an employee of the defendant posted to various branches before being transferred to the Ikotun branch of the defendant, where he served as the Head of Operations of the branch the duties of which include loading cash on the Automated Teller Machines (ATM). That because he was otherwise engaged with other operational issues at the branch including but not limited to account opening and other related issues, he nominated the Customer Service Officer (i.e. Olusegun Smith) as his alternate to load cash on the ATM. As the second authorized person to load cash on the ATM is the Cash Officer who as at 17th December 2010 was one Michael Adeosun. That the Cash Officer, pursuant to clause 3.4.6 at pages 35 – 36 of the defendant’s Operation Policy and Procedure Manual, is the one saddled specifically with ATM accounts reconciliation and other ATM related issues. The claimant went on that he reported shortages/imbalances on the ATM to the Regional Officers of the defendant vide the emails/memo dated 17th January 2011. That he reported that the Cash Officer i.e. Michael Adeosun who had been asked to resign by the defendant (which fact was never disputed by the Regional Officers in their mails/memo) did not reconcile the ATM accounts before leaving the employment of the defendant. The claimant continued that he resigned his employment with the defendant by a letter dated 22nd July 2011 but same was rejected on the ground of the unresolved ATM shortages. That his resignation came about six months after the ATM shortages was first reported by him and it appeared nothing was being done by the defendant on same. That notwithstanding his letter of resignation which was rejected by the defendant, he went back to his duty post and continued to work for the defendant. That the defendant, however, “deleted the name of the defendant from its payroll’ and denied the claimant access to the system so as to continue to perform his duties and also earn salary. To the claimant, after the exit of Michael Adeosun, the former Cash Officer, from the bank, the defendant appointed and posted another Cash Officer to the branch who resumed in January 2011 and would be in a position to explain why the shortages on the ATM continued. That when the defendant would not pay him salary and would also not grant him access to the system to perform his duty, he was constrained to take the matter before the Citizens Right Directorate, Lagos State Ministry of Justice and also write the letter dated 12 March 2012 asking for the payment of his gratuity. That when his terminal benefits were paid by the defendant on 20th March 2012, the sum of N350,000.00 (Three Hundred and Fifty Thousand Naira) only, being purported three months salary in lieu of notice and N2,843,100.00 being purported surcharges liable to be paid by the claimant were deducted by the defendant. The claimant accordingly filed this suit praying for the payment to him of these sums. The defendant denied any liability and contended that the deductions that it made from the claimant’s entitlement were valid and justified on the ground amongst others that it was the responsibility of the claimant to supervise the ATM operations of the branch as Head of Operations. The deductions are: N350,000.00 being payment deducted from the claimant’s entitlement in lieu of notice to resign; and the N2,843,100.00 being the share apportioned to the claimant from the sums of moneys reportedly missing from the defendant’s branch where the claimant worked as the Head of Operations. The defendant then proceeded to frame one issue for the determination of the Court, to wit: Whether on the preponderance of evidence adduced by the claimant, the deductions made by the defendant from the gratuity payment due to the claimant upon the determination of his employment with the defendant was lawful and justified under the terms of the claimant’s employment with the defendant bank. In arguing its case, the defendant reiterated the facts of the case. It is the submission of the defendant that it was whilst investigation was on-going to determine the extent of loss of moneys (as per the ATM shortages) under the watch of the claimant that the claimant sought to resign, which the defendant refused in order not to frustrate the investigation. That it was during the period of investigation that a complaint was made by the claimant against it to the Directorate for Citizens’ Right of the Lagos State Ministry of Justice alleging that the defendant was victimizing the claimant. That the Directorate invited both parties and resolved that the cash shortages from the ATM operations should be reconciled and any sum constituting the shortages should be communicated to the claimant to enable him regularize them. The defendant’s position is that the ATM operations was not only the responsibility of the claimant as Head of Operations of the branch but that the losses continued even after the person suspected by the claimant exited the defendant’s employment and efforts to fully reconcile the extent of the loss was not assisted in any way by the claimant who abandoned his duty post from August 12, 2011, when he was mandated to go back to his branch to reconcile the shortages. That it was in this state that the defendant ascertained that the loss suffered from the ATM operations at the Ikotun Branch to be the total of N5,686,200 (Five Million, Six Hundred and Eight-Six Thousand, Two Hundred Naira) only between November 2010 to December 2010, which it subsequently apportioned amongst all the members of staff directly involved in the ATM operations at the time relevant and material to the unexpected loss, which action culminated in the present suit. The defendant urged the Court to note that both parties are agreed that monetary losses occurred at the Ikotun Branch from ATM operations. That the claimant is not denying that he was Head of Operations and so in charge during the period of the losses. That the claimant merely seeks to shift the blame for the losses to another member of staff, the Cash Officer alleged by the claimant to be responsible for cash operation. The defendant then referred to clause 1.2.2 at page 4 of the Defendant’s Branch Operations & Procedure Manual (Staff Handbook), which stipulates that the Head of Operations shall have the overall supervision of branch operations/operations staff as well as ensuring that accounts proofs and reconciliation are promptly prepared and submitted via the portal to the Branch Resident Controller. Also referred to the Court were clauses 1.4.3. 1.4.4, 1.4.5, 3.2.1, 3.3.0, 3.3.1, 3.3.2, 3.3.3, 3.3.5 and 3.3.9 at pages 6, 7, 8, 29, 30, 31 and 33 of the Staff Handbook, all of which state the operational functions and responsibilities of the Head of Operations at the branch level of the defendant bank. To the defendant, with these responsibilities, the claimant cannot argue that the shortages were as result of the responsibilities of another staff as it was the direct responsibility of the claimant to address issues of shortages and loss of operational funds at the branch. In any event, that by clauses 3.4.0 and 3.4.1 at page 33 of the Handbook, the cash officer reports directly to the Head of Operations. That this fact alone means that ultimate responsibility lies with the claimant as Head of operations. As to the power of the defendant to make deductions from the entitlements of an employee on any sum due from an employee seeking to resign his/her employment at the point of paying the terminal benefits of such an employee, the defendant referred to page 10 of the Employees Handbook, under “resignation” provides that – Where an employee is leaving the services of the bank for any reason whatsoever, the bank may deduct from, or set-off against, any salary and other entitlements made payable to him the amount of any sum or sums sue from him to the bank… To the defendant, any cash shortage or loss that is not fully explained or reconciled, in line with the claimant’s responsibilities as Head of Operations, remains a sum due from him to the bank as moneys kept under his care which loss he could not reasonably provide an explanation for to his employer and the defendant’s action of deducting an apportioned sum of the loss from the claimant’s entitlement was well within the right of the defendant to do so. That parties are bound by the terms of employment, citing Chima & ors v. Pan Ocean Oil Corporation Nig Ltd [2014] 51 NLLR (Pt. 171) 552 at 577. That the contention of the claimant that he was not indicted for fraud over the incident as deposed to in his statement on oath to warrant the deductions cannot suffice with respect to the issue of the loss of bank funds kept under his watch as what is in issue is the negligent act of the claimant and not a criminal indictment or trial. The defendant then urged the Court to resolve this issue in its favour. As to the deduction of N350,000, the defendant referred to page 10 of the Staff Handbook dealing with resignation, and which provides that – …Apart from cases of serious misconduct, where an employee may be summarily dismissed without notice, in all other circumstances employment can be terminated by either party giving to the other notice as follows: Banking Executive and above – 3 months notice in writing. In the alternative, either party may pay cash in lieu of the same notice period applicable in each case… To the defendant, the submission of the claimant that his resignation was accepted at the time he tendered same during the investigation of the ATM cash shortages and so the deduction of payment in lieu of notice by the defendant at time of his resignation was subsequently accepted was wrong, is not true given the terms of his employment as just quoted. That payment in lieu of notice depends on who is giving the notice. That in the instant case, it is the claimant as he is the one seeking to resign. That even from the notices the claimant claimed to have given the defendant, he did not observe the stipulation of giving three months’ notice to the defendant on the effective date of his resignation and the defendant’s acceptance of same after concluding its investigation into the cash shortages, must reflect the deduction of three months’ salary in lieu of notice that it ought to be given the claimant in his letter of intention to resign his employment, which was done in this instance, referring to Igboko v. Woods Resources Ltd [2014] 48 NLLR (Pt. 156) 208 at 245. The defendant then urged the Court to hold that the deduction of N350,000 by the defendant was in accordance with the terms of the claimant’s employment; and also to hold that the failure of the defendant to accept the resignation of the claimant at the time it was given by the claimant was in order in view of the on-going investigation against the claimant. The defendant continued that having to deduct three months’ salary in lieu of notice at the point of formal acceptance of the claimant’s resignation and payment of entitlements was in order and accords with good corporate governance extant and trite policies, which requires an employer to clear an employee of any enquiry of an alleged misconduct, at point of disengagement or resignation or before acceding to the request of such an employee to resign. That under cross-examination, the claimant admitted to not giving the three months’ notice as required by Exhibit C2; and having failed to do so, the defendant acted rightly when it deducted the three months’ salary from the total entitlement of the claimant as the terms of employment on this issue is what the Court will necessarily enforce, citing Ibama v. SPDC [2005] All FWLR (Pt. 287) 832 at 843 – 846. The defendant went on that assuming the letter of resignation was wrongly rejected by the defendant, that the effect of such rejection on the right of the claimant to resign or give the required notice is not affected in any way as the claimant’s letter of resignation by law took effect from the date the letter was received, referring to Sidmach Technologies Nig. Ltd v. Onuorah [2014] 46 NLLR (Pt. 148) 258 at 290 and Adefemi v. Abegunde [2004] 15 NWLR 1 at 28. That in the instant case, the letter of resignation was received by the defendant on 12th August 2011 and became effective on that date. That from 12th August 2011, the claimant by operation of law ceased to be an employee of the defendant; and by this fact, it means that the claimant did not give the required notice of three months. Accordingly, that the defendant was right to have deducted the N350,000 from the claimant’s entitlement as the sum due in lieu of three months’ notice. The defendant then urged the Court to resolve this issue in its favour; and concluded by praying the Court to dismiss the claimant’s suit with punitive cost. In reaction, the claimant framed one issue for the determination of this Court, namely: whether the claimant had proved his entitlement to the claims against the defendant. To the claimant, the Court determines a case on the balance of probabilities. That DW in the course of cross-examination prevaricated on material facts with a view to conceal the truth, giving stereotype answers of “I do not know” or “I would not know”, to even facts that were clearly within the knowledge of DW and his general demeanor during cross-examination was such as to impeach the credit of DW and render his testimony suspect and unbelievable. That this Court has the discretion to determine the probative value of to be ascribed to the evidence of a witness, citing Buhari v. INEC [2008] 12 SC 1 at 123. The claimant then proceeded to argue his own case. To him, he led evidence and tendered documents to prove his entitlement to the reliefs sought in this suit, contending that the deductions made by the defendant from his entitlement are illegal, unwarranted, null and void. The claimant then contended that on the application of the doctrine of estoppel per conduct, the defendant is estopped from resiling from a representation which the claimant acted upon to his own detriment. To the claimant, the defendant had rejected the claimant’s resignation for which the claimant continued to work until he wrote the letter dated 12th March 2012 requesting for his terminal benefits since by then the defendant had deleted his name from its payroll and system so that he could no longer earn salaries and could not work on the system. That he continued to report to work way beyond the 3 months notice in lieu of required to be given by the defendant Staff Handbook. The claimant went on that regarding the N2,843,100.00 deducted, he has proved his entitlement to his terminal benefit having resigned his employment from the defendant and the defendant has not in its pleadings or evidence adduced controverted the claimant’s entitlement to his terminal benefit, which in fact it had paid although less what it deducted as surcharge for the unresolved ATM imbalance. The claimant then referred to clause 3.4.6 of the defendant’s Operation Manual, contending that the cash officer has the specific responsibility of the reconciliation of ATM accounts despite the claimant’s general responsibility for branch accounts generally. That specific provisions prevail over and above that which is general, referring to Adebayo & 2 ors v. PDP [2013] 4 – 5 SC (Pt. III) 1 at 108 and Ibori v. Ogburu [2004] 15 NWLR (Pt. 895) 154 at 194 – 195. It is thus the contention of the claimant that the specific provision of clause 3.4.6 overrides the general provisions of the clauses cited by the defendant. That the responsibility of ATM reconciliation is that of the cash officer, not the claimant’s. In any event, that on account of other duties in the branch, he nominated the Customer Service Officer, Olusegun Smith, as his alternate as per ATM transactions and this fact was known to the defendant and conceded to by DW during cross-examination. That the cash officer, Michael Adeosun, and the Customer Service Officer (the alternate to the claimant on ATM issues) were both asked to resign and they both resigned the same day from the employment of the defendant without doing any handover to the claimant on ATM accounts. That these issues were brought to the fore in the claimant’s report to the defendant vide his mails/memo of 17th January 2011 and 22nd June 2011. The claimant continued that the buck does not stop at his table as Head of Operations as far as ATM account and other accounts proofs and reconciliation are concerned given that he too had superior officers (such as Branch Manager, Branch Resident Controller and Regional Operations Controller) to whom he reports and who also have oversight functions. He then referred to clauses 1.3.1, 1.2.1 and 1.3.0 of the Operation Manual and contended that the ATM imbalances record was not an issue isolated to the claimant but it is an issues reported to superior officers of the claimant and which was an issue they all also had oversight functions. That the only proof relied upon by the defendant of the claimant’s culpability to justify the deduction of the sum of N2,843,100.00 from the terminal entitlement of the claimant is the defendant’s Exhibit D3, an internal memo dated 22nd November 2011 on the outcome of the investigation into the cash shortage as well as recommendation on action taken. It is the contention of the claimant that Exhibit D3 cannot fix the liability or culpability of the claimant as the sais memo negates the principle of fair hearing. That he was never aware that such a committee with the mandate was set up by the defendant; nor was he invited or summoned to appear before the committee (that DW under cross-examination could not even tell the Court if the claimant was invited to the panel) and he never appeared before the panel. That the panel ought to have invited him before a decision is reached, referring to Shell Petroleum dev. Co. Ltd v. Chief Victor Sunday Olanrewaju [2008] 12 SC (Pt. III) 27 at 43, JSC of Cross River State & anor v. Dr Young [2013] 4 – 5 SC (Pt. II) 132 at 136 – 137 and section 36 of the 1999 Constitution, as amended. Furthermore, that failure to summon or invite him before Exhibit D3 was made renders the entire work of the panel and its report worthless, null and void, referring to Orugbo & anor v. Una [2002] FWLR (Pt. 127) 1024 at 1036 and Ndaba (Nig) Ltd & anor v. Mr. Orabkwe [2003] FWLR (Pt. 171) 1693 at 1712. It is the submission of the claimant, therefore, that Exhibit D3 is nothing more than recommendation of the panel/committee set up by the defendant. That there is nothing in it containing the minutes of the deliberations of the committee or the record of its proceedings before it reached a conclusion as per its recommendations. Therefore, that Exhibit D3 is no more than a mere window-dressing by the defendant to justify the deductions it made from the terminal benefits of the claimant. To the claimant, the defendant averred and led evidence at the trial that the alleged ATM shortages bordered on fraud. That it is trite that where an allegation in a pleading borders on a crime, the party alleging same must prove beyond reasonable doubt pursuant to section 135 of the Evidence Act 2011, referring to Shell Petroleun Dev. Co. Ltd v. Olanrewaju ( supra) at page 44. That the defendant did not provide any scintilla of evidence or proved beyond reasonable branch of the defendant. That having accordingly not averred facts or proved the allegation of fraud as per the ATM shortages, there is no basis for the Court to agree that the deduction of N2,843,100.00 from the terminal benefit of the claimant is justified. The claimant then disagreed with the defendant’s submission that the case of the defendant against the claimant is one in negligence. That the pleading and evidence adduced by the defendant do not show negligence. That the final address of the defendant which raises for the first time the cause of action in negligence cannot take the place of the pleadings and evidence adduced by the defendant at trial, referring to Salzgitter Stahl GMBH v. Tunji Dosunmu Industries Ltd [2010] 3 – 5 (Pt. II) 54 at 76 (incomplete citation). The claimant went on that the defendant’s reliance on clause 1.7 at page 7 of the Staff Handbook (Exhibit C9) as authority for making the deductions cannot be interpreted as to have given the defendant such wide latitude to deduct or set-off against salary and other entitlements except such sums are not in dispute. To the claimant, the interpretation of the clause definitely excludes sums that are in dispute as in the instant case. That an unfetter and unrestrained application of the clause will foist a fait accompli on the claimant and the Court as it will mean that the defendant can act on its own whims and caprices, something that negates section 6(6)(b) of the 1999 Constitution. Furthermore, that the clause cannot be applicable as the money deducted from the terminal benefit of the claimant is not a sum due to the defendant as the defendant has not proved the claimant is culpable in the ATM cash shortages. The claimant continued by urging the Court to note that it is not in dispute that he is entitled to be paid terminal benefits having resigned from the employment of the defendant; and that the defendant rejected the letter of resignation he gave in lieu of notice, referring to paragraphs 5 and 6 of the statement of defence where the defendant admitted rejecting the resignation letter of the claimant. In terms of the claimant’s claim for interest on the judgment sum and costs, the claimant referred to Order 21 Rule 4 of the NIC Rules 2007 and Daniel Holdings Ltd v. UBA Plc [2005] 8 SCM 70 as authority for this Court’s power to award interest on the judgment sum. Also referred to the Court are Order 21 Rule 1 and Order 25 rule 5 of the NIC Rules 2007 as authority for this Court’s power to award cost. That the professional fee of his solicitor in this case is in the nature of cost incurred which this Court can award to indemnify the claimant. The claimant then urged the Court to accordingly award interest and cost as claimed. In conclusion, the claimant urged the Court to grant all his claims. I indicated earlier that the defendant did not file any reply on points of law. COURT’S DECISION I heard learned counsel and considered all the processes filed in this suit. Given the reliefs claimed by the claimant, the issue before the Court is whether the deduction by the defendant from the claimant’s terminal benefit of N3,193,100.00 (N2,843,100.00 as surcharge for ATM shortages and N350,000.00 being the claimant’s three months’ salary in lieu of notice) is lawful. The defendant did not deny making these deductions. Its case is that it has the right to make the deductions given that the claimant alongside others was part-responsible for the ATM shortages the defendant suffered and the claimant did not give three months’ notice before retiring from the defendant’s employment. In answer, the claimant argued that the deductions were wrongful as in relation to the N2,843,100.00 he was never officially indicted, charged to court and/or found culpable in the alleged ATM shortage; and in regards to N350,000, his resignation letters were not accepted by the defendant on account of its excuse that the ATM shortage needed to be resolved – as such the issue of him forfeiting 3 months’ salary in lieu of notice should never arise because he continued to remain in the employment of the defendant beyond 3 months after handing in his resignation letters. In determining the said issue before the Court, it is necessary to consider the issue of when the claimant resigned in order to ascertain whether the deduction of N350,000 as payment in lieu of notice is lawful on the part of the defendant. The claimant had written to the defendant vide Exhibit C6 dated 22-07-2011 wherein he tendered his resignation with effect from 26-07-2011. A signed endorsement dated 25/07/2011 on Exhibit C6 showing that the resignation was not accepted had these words: “You will need to resolve your ATM imbalance before your letter is accepted by management”. The claimant, however, wrote another letter of resignation (Exhibit C9) dated same 22-07-2011, but this time intimating that the resignation is to be effective 12th August 2011. In terms of the documents before the Court, nothing was said of this letter. But the testimony of the claimant is that the defendant still refused to accept this resignation and instead proceeded to delete the name of the claimant from its system and payroll for which the claimant could not perform his duties or receive any salary and allowances. This was the state of affairs until 12-03-2012 when the claimant wrote Exhibit C10 of that date requesting to be paid his gratuity. On 15th March 2012, the defendant then made the two deductions under issue from the claimant’s account in terms of settling the gratuity of the claimant. See Exhibit C11. The argument of the claimant is that when his two letters of resignation were rejected by the defendant he remained an employee of the defendant until 20th March 2012 when his gratuity was paid to him by the defendant less the deductions made. But is this really the case? The law is that there is absolute power to resign and no discretion to refuse to accept the notice. See Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1 CA. By Yesufu v. Gov. Edo State [2001] 13 NWLR (Pt. 731) 517 SC, a notice of resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed. This is because there is absolute power to resign and no discretion to refuse to accept; and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted. In fact, Taduggoronno v. Gotom [2002] 4 NWLR (Pt. 757) 453 CA specifically held that no employer can prevent an employee from resigning from its employment to seek greener pastures elsewhere. Furthermore, in WAEC v. Oshionebo [2006] 12 NWLR (Pt. 994) 258 CA, it was held that a notice of resignation is effective not from the date of the letter, or from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent; and that tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. The case, however, proceeded to state that in the case of retirement, giving notice of retirement carries with it the right to be paid a pension and gratuity, but does not confer the right to withdraw from the service immediately and automatically. What all of this means is that when Exhibit C6 was written to the defendant, the defendant had no right to refuse to accept the resignation of the claimant vide Exhibit C6; and because the endorsement on it rejecting the resignation of the claimant is dated 25/07/2011, that indicates the resignation letter was received by that date. See Yesufu v. Gov. Edo State (supra). I accordingly find and hold that the claimant’s letter of resignation as per Exhibit C6 was received on 25th July 2011. This being the case, it means that the claimant effectively resigned on 25th July 2011 when Exhibit C6 was received by the defendant. The refusal of the defendant to accept the claimant’s resignation in that letter was, therefore, null and void and of no effect whatsoever. This being the case, the claimant cannot be said to have still been in the employment of the defendant until 20th March 2012 as the claimant argued. Exhibit C2 is the Employee Handbook and contains terms and conditions of employment of staff of the defendant bank. At page 11, under the provisions relating to “Resignation”, it is provided that employment may be terminated by either party giving notice or payment of cash in lieu of the notice period applicable. As Head of Operations of a branch, the claimant fell in the category of “Banking Executive and above” for which the notice period was 3 months. So when the claimant wrote Exhibit C6 and put the effective date of his retirement as 26th July 2011, the claimant did not conform to the requirement of Exhibit C2 as to notice period. The claimant’s resignation approximated to one with immediate effect; and I so find and hold. What this means then is that the claimant was duty bound to give to the defendant 3 months notice or payment of cash in lieu of such notice. That he did not do this, is the defendant thereby entitled to recover same from his gratuity even after refusing to accept the resignation? This remains the question. I just indicated that WAEC v. Oshionebo (supra) made a distinction between “resignation” and “retirement” with different legal consequences. Resignation carries with it the right to leave service immediately and automatically without any benefit subject to the employee paying any of indebtedness to his employer. Retirement, on the other hand does not confer such a right to leave service immediately and automatically. A further legal consequence of retirement is provided for in OSHC v. Shittu [1994] 1 NWLR (Pt. 321) 476 CA, which held that where an employee gives notice of his voluntary retirement to his employer, and the employer refuses to accept the notice, the position is that the employee is still in the employer’s service. It is only that employee who can rely on that notice in his favour and not the employer who rejected the notice. This is because it has to be adjudged not only a deviation from “natural equity” but also contrary to law for an employer who is guilty of the illegality of refusing a notice of voluntary retirement to turn around and benefit from that illegality. See also Osu v. PAN Ltd [2001] 13 NWLR (Pt. 731) 627 CA, which held that the notice of retirement will appropriately expire at the stipulated periods regardless of directives from the employer that the employee should stop work before the date stipulated; as such an employee remains a staff of the employer up to and including the last day when the notice would have properly expired. The instant suit is one of resignation, not retirement. This means that the qualifications of OSHC v. Shittu (supra) i.e. that an employee is still in service despite the refusal of the employer to accept the notice and that only the employee can rely on the notice in his favour will not apply to benefit the employee in the instant suit. The applicable rule, therefore, is that enunciated in WAEC v. Oshionebo (supra) i.e. that tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. The claimant did not give the requisite 3 months’ notice or made the requisite payment in that regard. By NNPC v. Idoniboye-Obu [1996] 1 NWLR (Pt. 427) 655 CA and NEPA v. Isiereore [1997] 7 NWLR (Pt. 511) 135 CA, where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment of salary in lieu of the length of notice and the latter course is chosen, the party seeking to end the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not even enough that in the letter of termination he offers to pay salary in lieu of notice. This means that the claimant is indebted to the defendant in that sum (3 months’ salary in lieu of notice i.e. N350,000). The defendant was accordingly right to have deducted the said sum of N350,000 from the terminal benefit of the claimant before paying the balance to the claimant. I so find and hold. Arguments of the claimant, that he remained in employment until 20th March 2012, all go to no issue. This is because even his second resignation letter, Exhibit C9, still did not meet the requirement of 3 months’ notice; and the claimant himself acknowledged that the defendant factually locked him out of their system and did not pay him any salary. In any event, the ambiguity of a letter of resignation does not affect its effectiveness; and there would be no equivocation of resignation in spite of an expression of willingness to continue serving if the law permits. See Benson v. Onitiri [1960] NSCC (Vol. I) 52. So in either case, the claimant did not give the requisite 3 months’ notice and so is duty bound to make payment in lieu of the notice. The claimant’s claim for the sum of N350,000 accordingly fails and is hereby dismissed. I now turn to the claimant’s claim for N2,843,100.00 as surcharge for ATM shortages. To justify the deductions the defendant made from the claimant’s terminal benefits, the defendant had relied on the provisions on “Resignation” at page 11 of Exhibit C2, the Employee Handbook, which stipulates that – Where an employee is leaving the services of the bank for any reason whatsoever, the bank may deduct from, or set-off against, any salary and other entitlements made payable to him the amount of any sum or sums due from him to the bank… The defendant then submitted that any cash shortage or loss that is not fully explained or reconciled, in line with the claimant’s responsibilities as Head of Operations, remains a sum due from him to the bank as moneys kept under his care which loss he could not reasonably provide an explanation for to his employer and the defendant’s action of deducting an apportioned sum of the loss from the claimant’s entitlement was well within the right of the defendant to do so. The evidence, on the part of the defendant, before the Court shows that the claimant had reported via an email of 17th January 2011 ATM cash imbalance and the role played by the cash officer. See Exhibit D2. Exhibit D3 dated 22nd November 2011 is a report of the ATM Reconciliation Committee on the claimant’s indebtedness on the ATM imbalance given the petition the claimant wrote to the Directorate for Citizens’ Rights. Exhibit D3 at page 2 shows that the total outstanding shortage is N5,686,200.00, which the Committee in its wisdom apportioned to the three “stakeholders who handled the accounts during the period of the account went into debit, in proportion to their responsibility and duration…” The said three stakeholders and what was apportioned to them are – 1. Abayomi Adetoro (the claimant), Head of Operations, N2,843,100.00 for the period January 2010 to July 2011. 2. Semie Kelani, Cash Officer, N2,776,550.00 for the period December 2010 to June 2011. 3. Michael Adeogun, Cash Officer, N66,550.00 for the period January 2010 to December 2010. In relation to the claimant, the Committee then recommended at page 3 of Exhibit D3 that Human Resources should accept the claimant’s resignation effective 12 August 2011 and advise him of his indebtedness of N2,843,100.00 arising from ATM shortages. Now, nowhere in Exhibit D3 is it indicated that the claimant or any of the implicated stakeholders was invited and questioned. There is also nothing in Exhibit D3 to show the yardstick used for the apportionment of indebtedness of each of the stakeholders as to justify the claimant being responsible for N2,843,100.00 over and above others. It appears that the defendant merely and unilaterally determined what each of the stakeholders should pay without giving any of them any hearing on the matter. In sum total, there is a complete absence of fair hearing in all of this; and I so find and hold. The law as stated in Baba v. NCATC [1991] 5 NWLR (Pt. 192) 388 SC is that where a panel of inquiry set up by an employer makes a case against an employee, the employer must inform such an employee of the case against him and give him an opportunity to refute, explain or contradict them. I am not unmindful of cases such as Nig. Arab Bank Ltd v. Shuaibu [1991] 4 NWLR (Pt. 186) 450 CA, which held that employee’s measuring up to standard is not confined to his efficiency at work, but includes a commitment to safeguard the interest of his employer, minimize financial losses and maintain the reputation and goodwill of the establishment; and Oladipo Maja v. Leandro Stocco [1968] 1 All NLR 141 SC, which held that a servant who takes advantage of his position to enrich himself would be accountable to his master for the proceeds of such advantage and will be liable to an instant dismissal. A third authority is Abomadi v. NRC [1995] 1 NWLR (Pt. 372) 451 CA, which held that an employee owes it a duty to his employer to protect its property or use same in such a way that no preventable loss would occur. Where he is tardy or there is lack of diligence in his approach to his duty or he is negligent and the master by the same suffers loss, due to the unacceptable misconduct and untoward behavior of the employee, such employee is guilty of misconduct to which appropriate disciplinary action can be taken against him. Yet none of these authorities dispensed with the requirement of fair hearing before any action is taken against the said employee. There is a Supreme Court authority dealing with issues closely related to what is before this Court in the instant case i.e. the right/power of an employer to surcharge an employee for losses that occurred. In Alhaji A. R. Animashaun v. UCH [1996] LPELR-492(SC); [1996] 10 NWLR (Pt. 476) 65, two main issues arose for determination: firstly whether the surcharge of the appellant's monetary entitlements was lawful and secondly, whether the respondents were entitled to deduct the money. The appellant was the plaintiff at the trial court. He served in several strata of government pensionable establishments for 24 years and 7 months, the last being the University Teaching Hospital (UCH), Ibadan, a Federal Government Ministry of Health parastatal where he served for 2 years, 5 months and 27 days from where he retired on 29th June 1979. He claimed he was entitled by way of gratuity to N20,920.73 for the cumulative years of service and that the statutory bodies he served in the old Western Nigeria (and their successors, probably) sent in their contributions. To those sums, the defendant, being his last employer, was to add the sum of N2,562.41. When in 1984 the defendant was to pay the plaintiff this gratuity, the sum of N12,227.41 was deducted. In an earlier letter of 7th June 1979, the plaintiff (appellant) was told by the defendant that this sum would be deducted from his retirement entitlements as surcharge for an alleged act of gross inefficiency. The appellant replied to this letter denying any act of inefficiency or any wrongdoing to warrant the planned surcharge. Thus when finally the sum of N12,227.41 was deducted from his retirement benefits (having been retired) he sued the defendant claiming the said sum. The appellant before receiving the letter of retirement had appeared before an administrative panel as a witness where he was not personally confronted with any accusation of misdeed. The Administrative Panel was not a punitive panel but a fact-finding one to make recommendations to the defendant to take further action as may be deemed necessary. Learned trial Judge found from the report of the Panel that instead of pursuing the recommendations, the defendant chose to ignore them; and then levied N12,227.41 against the plaintiff. The most remarkable aspect of the case for defence was that nowhere was evidence adduced as to how the sum of N12,227.41 surcharged the appellant was arrived at. The learned trial Judge had no option than to find for the plaintiff on his claim. The defendant appealed to the Court of Appeal, which upturned the decision of the trial Court. The Court of Appeal held that the conduct of the Panel of enquiry which found irregularities in the section of the defendant headed by the appellant was known to the appellant; so were its findings. The Court of Appeal never adverted to whether the appellant was given a hearing; it, therefore, allowed the appeal. On a further appeal to the Supreme Court, the Supreme Court in the lead judgment per His Lordship Belgore, JSC (as he then was) allowed the appeal in the following words – It must be pointed out that the appellant was never told he was retired because of the Report of the Panel. He was not even informed how the sum he was surcharged with was arrived at. It has not been shown in the evidence before the trial court how the indebtedness of the appellant was arrived at and that he was confronted with allegations against him so as to defend himself. It is true the Pensions Act applied to the staff of the defendant by virtue of its statute but all the steps that must be taken to allow the appellant to know he had committed any misdeeds were withheld from him. The Court of Appeal overlooked this very fundamental aspect of fair hearing and arrogated the Administrative Panel to the status of unimpeachable inquisition. I therefore find merit in this appeal and I allow it. I restore the judgment of the trial High Court and set aside the decision of the Court of Appeal. I direct that the sum of N12,227.41 deducted from the retirement benefits of the appellant be paid to him because the deduction was illegal and was a miscarriage of justice. I order N1,000.00 as costs of this appeal in favour of the appellant against the respondent, University College Hospital Management Board. In like manner, as I indicated earlier that nowhere in Exhibit D3 is it indicated that the claimant was invited and questioned by the Committee the defendant set up; and there is also nothing in Exhibit D3 to show the yardstick used for the apportionment of indebtedness of each of the stakeholders as to justify the claimant being responsible for N2,843,100.00 over and above the other stakeholders. On the authority of Alhaji A. R. Animashaun v. UCH, therefore, I find for the claimant and accordingly direct that the sum of N2,843,100.00 deducted from the claimant’s terminal benefits be paid to him because the deduction was illegal and was a miscarriage of justice. For the avoidance of doubt, the claimant’s case succeeds only in part and only in terms of the deduction of N2,843,100.00 from his terminal benefits by the defendant, who must now refund the said sum within 30 days of this judgment, failing which the said sum shall attract interest at 10% per annum until fully paid. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD