REPRESENTATION U. E. ESSIEN for the claimant NSIKAK IKPEME with OLAWOLE OGUNDELE for the defendant JUDGEMENT The claimant, by a General Form of Complaint filed on 20th May, 2014 along with the Statement of Facts, List of Witness, List of Documents and Witness’ Written Statement on Oath, approached the Court for the following reliefs: 1. A declaration of this Honorable Court that the defendants are jointly and severally liable for breach of a contract of employment, as well as a guarantorship agreement between it and the defendants. 2. The sum of #120, 000.00 (One Twenty Thousand Naira) only being 3 months’ salary in lieu of notice owed it by the 1st defendant. 3. The sum of #500,000.00 (Five Hundred Thousand Naira) general damages for breach of contract of employment. 4. #100,000.00 cost of prosecuting this suit. The claimant case on the record is that the 1st defendant entered into a contract of employment with the claimant and procured the 2nd and 3rd defendants who executed a guarantorship bond to fully indemnify the claimant against any loss it may incur or suffer as a result of the acts or omissions of the 1st defendant. Sometime in January, 2013, the 1st defendant abruptly and without complying with the contract of employment between the parties left the services of the claimant and upon realizing the breach, the claimant wrote a letter demanding the 2nd and 3rd defendants to make good their obligations to the claimant in accordance with the guarantorship bond they executed in favor of the claimant. The Claimant stated that the 1st defendant is in breach of her contract of employment with the claimant by not complying with the terms of her contract which stipulated that she gives the company 3 months’ notice of her intention to resign from the company or forfeit 3 months’ salary in lieu of same. The Claimant maintained that the 2nd and 3rd defendants executed a guarantorship bond in favour of the 1st defendant wherein they undertook to fully indemnify the claimant against any loss it may suffer as a result of the acts and omissions of the 1st defendant. Clamant averred that she has suffered huge financial loss as a result of the acts of the 1st, 2nd and 3rd defendants. The 2nd defendant in response filed a STATEMENT OF DEFENCE OF 2ND DEFENDANT which was dated and filed on 12th August, 2014. The 2nd defendant averred that it is not true that the 1st defendant abruptly left the services of the claimant as stated in paragraph 3 of the Statement of Facts. Rather, the 1st defendant left the claimant’s employ when it became imminent that her life and safety were threatened owing to the ill, inhuman and inhumane treatment meted to her by the claimant, such as making the 1st defendant work for longer hours than contemplated, deducting monies from the 1st defendant’s salary as contributory pension without remitting same to her pension managers, subjecting the 1st defendant to strange and unbearable spiritual assignment, sexual harassment and the likes. The 2nd defendant maintained that going by the circumstances under which the 1st defendant left the employ of the claimant she was not in breach of any of her contract with the claimant. And that since the 2nd and 3rd defendants were to indemnify the claimant in the event of a breach, loss or damage occasioned by the 1st defendant, the 2nd defendant stands absolved from such liability. The 2nd defendant contended that the claimant is not entitled to any of the reliefs claimed in her statement of facts or at all. He urged the court to dismiss the suit with substantial costs. At the trial the claimant one Lydia Akpadia, their Human Resource Manager who testified as CW, adopted her written statement on oath of 20th May 2014 which was marked as exhibit C1 and proceeded to tender three (3) other exhibits. Under cross examination CW testified that she knew the 1st defendants who served her NYSC with the claimant before securing employment with the claimant, but that she was unaware that the 1st defendant had suffered several sexual harassment incidences or that she had been made to undergo spiritual assignments. She further testified that the 1st defendant was often late to work and that deductions were made to her salary as a result, she testified that the claimants working hours were 7.30 am to 5. 00 pm and that sometimes the 1st defendant stayed in the office up to 9pm. She further testified. In response to the question as to whether the 1st defendant paid its staff overtime DW responded that the company provided external vacations and that the 1st defendant had vacated in Dubai and Ghana. With regards to the loss suffered by the claimant as a result of the 1st defendant’s departure she stated that the only loss the company talked about was that they had not felt the impact of the IIATA training the 1st defendant had undergone at their expense. The defendants called Ajayi Ayodeji Olusola, an IT Staff with First Bank of Nigeria and also the 2nd defendant in this suit, he testified as DW adopted his written statement on oath dated 12th August 2014 which was marked exhibit D1. DW testified under cross examination that he signed the guarantor undertaking (form) Exhibit C3 and that he was neither forced or induced to sign the exhibit. He testified that the 1st defendant was undergoing trauma when she had to leave the claimants employ, she was closing from work each day at 11.00pm and when she arrived late the next day her salary was deducted for lateness, testifying further that deductions were also made to her pension funds which were not being remitted, the claimant had given her 24 hour notice to vacated her official accommodation resulted in 1st defendant being homeless and forced to squat with him (the 2nd defendant) and that she (1st defendant) had sent a resignation letter the General Manager. DW concluded by saying that at no time did he relinquish, or apply to be substituted or withdraw from being the 1st defendant’s guarantor. Exhibits. S/N TENDER BY NICN/CA/45/2014 DOCUMENTS DATED DATE TENDER MARK 1. Claimant Counsel Witness on oath 8/10/2015 CW 2. Written statement on oath 8/10/2015 20/5/2014 C1 3. Offer of provisional employment 8/10/2015 22/11/2012 C2 4. Guarantor undertaking 8/10/2015 21/10/2012 C3 5. Character referee “ July 1 C4 6. Witness on oath 10/12/15 10/12/2015 DW 7 Written statement on oath 10/12/2015 D1 At the close of trial, the parties filed their final written addresses in line with the rules of this court. The defendant’s FINAL ADDRESS OF THE DEFENDANTS dated and filed on 11th January, 2016. ISSUES 1. Whether the acts of the claimant did constitute constructive dismissal of Miss. Abimbola Odewumi from its employ? 2. Whether the guarantors (i.e. defendants) can still be held liable for loss or breach not occasioned by Miss. Abimbola Odewumi whom they guaranteed? ON ISSUE 1 Whether the acts of the claimant did constitute constructive dismissal of Miss. Abimbola Odewumi from its employ? Counsel submitted that the general rule is that if a company or employer has reason(s) to relieve its servant of his appointment, the law allows it the right to do so, as the same is ingrained in every employment. Also, the employers have the right to hire and fire (the same with the employee to walk out of the employment) provided the party exercise the power and respect the agreement, on the parting benefits. OSUMAH v. BROADCASTING SERVICE (2005) ALL FWLR (PT. 253) 775L; SEC. 11 (1) LABOUR ACT, 2004. Thus, that service of requisite notice before termination is one of such benefits. He argued that an exception however, arises where the termination of employment is brought about by making employee’s working condition so intolerable that the employee feels compelled to quit. Sec. 11 (5) of the Labour Act. ON ISSUE 2 Whether the guarantors (i.e. defendants) can still be held liable for loss or breach not occasioned by Miss. Abimbola Odewumi whom they guaranteed? Counsel that nowhere has it been found that Miss. Abimbola Odewumi caused any damage to the claimant’s business or property. Secondly, that the breach of notice anticipated by the contract of employment was occasioned by the claimant as the working condition became so unbearable/intolerable that Miss. Abimbola Odewumi was forced to resign. Therefore, that the defendants cannot bear any loss caused by the claimant as such is not covered by the guarantorship bond. The CLAIMANT’S FINAL ADDRESS was filed on 29th January, 2016. Adopting the issues formulated by the defendants to wit: 1. Whether the acts of the claimant did constitute constructive dismissal of Miss. Abimbola Odewumi from its employ? 2. Whether the guarantors (i.e. defendants) can still be held liable for loss or breach not occasioned by Miss. Abimbola Odewumi whom they guaranteed? Counsel argued thus: ON ISSUE 1 Whether the acts of the claimant did constitute constructive dismissal of Miss. Abimbola Odewumi from its employ? Counsel contended that the evidence led by the defence in proof of what it calls the ills, inhuman and inhumane treatments suffered by the claimant cannot be acted upon by any competent Court as they amount to nothing but unverifiable hearsay evidence. SEC. 37 of the EVIDENCE ACT, 2011. ON ISSUE 2 Whether the guarantors (i.e. defendants) can still be held liable for loss or breach not occasioned by Miss. Abimbola Odewumi whom they guaranteed? Counsel submitted that Exhibit CW4 apart from being an unpleaded document cannot serve the purpose for which it was tendered as it offends common sense to state or hold that an employee can guarantee a co-employee thereby releasing the employee’s guarantor who had not applied to withdraw his guarantorship and that the document itself did not seek to substitute the existing guarantor. More so, that it is the law that evidence extracted during cross examination which is not pleaded goes to no issue. OGUNMAKIN v. AKINSOLA (2002) FWRL (PT. 105) 781 @ 785. On the 23rd February 2016 parties adopted their final written addresses and the matter was adjourned for judgment. The Courts Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. Both the claimant and the defendant adopted the self-same issues;- 1. Whether the acts of the claimant did constitute constructive dismissal of Miss. Abimbola Odewumi from its employ? 2. Whether the guarantors (i.e. defendants) can still be held liable for loss or breach not occasioned by Miss. Abimbola Odewumi whom they guaranteed? And these shall be adopted as the issues for determination by this court too. With regards to issue 1;- Whether the acts of the claimant did constitute constructive dismissal of Miss. Abimbola Odewumi from its employ?, the defendants have contended that the claimants by their conduct and working environment brought about the 1st defendants departure arguing that the repeated sexual harassment, spiritual assignment, extensive working hours;- having to leave the office by 11.00pm and invariably arriving late to work the next day which would result in deductions from her salary for lateness as well as the fact that pension fund deductions were not being remitted appropriately made the 1st defendants working condition so intolerable that the employee feels compelled to quit. Relying on Sec. 11 (5) of the Labour Act Apart from the 2nd defendants pleading that the 1st defendant left the claimants employ due to the imminent threat to her life and safety as a result of the ill treatment, in human and in humane treatment described above that was meted out to the 1st defendant and his testimony in the witness stand, the 2nd defendant has put forward no evidence of the ill treatment the 1st defendant suffered. The defendants have argued that the submission of the 2nd defendant and the contentions and incidents listed are all based on hearsay evidence and the court cannot rely on it. “It is trite law that hearsay evidence is inadmissible and sections 8 and 9 of the Evidence Act cannot be relied upon to admit evidence” by Ogundanre JSC in OKORO VS. STATE  LPELR SC. Also in ZENITH BANK & ANOR VS. CHIEF DENNIS EKEKEUWEM & ANOR  LPELR 512 CA it was held that “the law provided in section 77 of the Evidence Act is that oral evidence must n all circumstances be the evidence of the person who saw, heard, perceived or held an opinion, which may be applicable. The exceptions are not relevant in the instant case, the statement of a witness in court about what he was told by a third party who is not called as a witness in the proceedings amounts to hearsay where the statement is to be believed as the truth of the fact he seeks to establish”. Per Akeju, JCA (P25 para D-G). See also SUBRAMANIAN VS. PUBLIC PROSECEUTOR  1 WLR 969, KATA VS. POTISKUM  3 NWLR (Pt. 540) 1. The claimant also fell in to the trap of hearsay with its submissions of overtime as he failed to present any evidence that the 1st defendant was ever paid overtime. Hence all the submissions as to the fact of the 1st defendant’s working environment and being paid for working overtime are hereby discountenanced. The defendant having failed to bring forward any independent evidence of the working condition of the claimant have failed to prove that the said working condition created by the claimants constituted an atmosphere that could be determined to have occasioned constructive dismissal. This court is very much aware of the doctrine of constructive dismissal, a concept that applies globally in the world of work and in labour/employment law, constructive dismissal, also referred to as constructive discharge, occurs when an employee resigns because his/her employer’s behaviour has become intolerable or heinous or made life difficult that the employee has no choice but to resign. Given that the resignation was not truly voluntary, it is in effect a termination. In an alternative sense, constructive dismissal or constructive discharge is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. See the UNREPORTED SUIT NO. NICN/LA/48/2012MISS EBERE UKOJI V. STANDARD ALLIANCE LIFE ASSURANCE CO. LTD Bearing in mind that this Court is generally permitted under section 7(6) of the National Industrial Court (NIC) Act 2006 and section 245C(1)(f), (h) and (2) of the 1999 Constitution, as amended, to apply inter alia international labour practices when adjudicating, in the instant case the court is not equipped with the where with all so to do. In the case of NEPA V. EL-FANDI  3 NWLR (PT. 32) 884; and section 125 of the Evidence Act 2011, which provides that “all facts, except the contents of documents, may be proved by oral evidence”. Yet no evidence has been put before the court to establish the working conditions of the 1st defendant and neither was she called as a witness. The defendant testified that the 1st defendant wrote a letter to the General Manager of the claimant yet that letter was not tendered in court to enable the court take a decision one way or the other. Issue 1 has not been proved in this court this issue is therefore resolved against the defendant. With regard to issue 2: Whether the guarantors (i.e. defendants) can still be held liable for loss or breach not occasioned by Miss. Abimbola Odewumi whom they guaranteed? The position of the law as regards guarantorship has been explicatedly stated in the case of CHAMI Vs. UBA PLC  LPELR 841 SC it was held that “the word Guarantee has been defined as a written undertaken or made by one person to another to be responsible to that other if a third party fails to perform a certain duty e.g. payment of debt” The case went on to state that; “it is settled law that where a person personally guarantees the liability of a third party by entering into a contract of guarantee or suretyship, a distinct and separate contract from the principal debtor’s is thereby created between the guarantor and the creditor” per Ononghen JSC (p 33 Para E). And in NWANKWO Vs. ECUMENICIAL DEVE. CO. SOCIETY  LPELR 6991 CA it was held that “In order to ascertain whether the principal obligator is a necessary party or not one needs to explore the purport and intendment of a guarantee in all its ramifications.” The claimants have tendered Exhibit C3 as the instrument of guarantee;- Guarantee undertaken. Herein reproduced below.. The Human Resource Manager Remlords Tours and Car Hire services Ltd. Bishop Abioye House 9, Edibe Edibe Calabar GUARANTOR UNDERTAKING I AJAYI ANDEJI OLUSOLA state that Miss ABIMBOLA ODEWUMI who is an employee of Remlords is known to me for 24 years and I hereby guarantee that I accept to be held liable/responsible to repair/replace in any event of any misconduct/loss or damage of any of the Company’s property/asset by the said PERSON while in the employment of the company. That by signing this guarantor’s form, I am aware of the implications therein and do hereby willingly and without force accept to be held liable for misconducts arising thereon. I am also aware that in case of any breach of the current contract or subsequent to be signed by ODEWUMI ABIMBOLA in the cause of his employment with, Remolords, the management of Remlords Tours and Car Hire Service Ltd. Is at liberty to use any legal means at her disposal to recover from me any of its property/assets damaged, stolen or lost by ODEWUMI ABIMOLA while in the employment of the Company. Guarantor Name AJAYI AYODEJI OLUSOLA Address: No 8 IYEBI STREET OFF MCC AKAI EFA, CALABAR Registered Mobile No 08032166425 Email email@example.com Provide the number on all or any the following documents belonging to you with copy attached: a. New Driver’s License PHC7765AA b. International Passport No c. National ID Card . d. Do you reside in any other address apart above: Yeas/No, if yes e. Your profession Banking f. Designation II User support g.Employer FIRST BANK OF NIGERIA PLC h. Employers Address No 35 Samuel Asabia, Marina Lagos i. Next of Kin MRS OLUWATOSIN AJAYI j. Relationship with the employee COUSIN Signature Date: 21/10/12 Pls affix postage stamp In exploring the ramification of this document I find that the key phrases in this exhibit are as follows “I hereby guarantee that I accept to be held liable /responsible to repair/replace in any event of any misconduct/loss or damage of any of the company’s property or assets by the said person (1st defendant) while in the employment of the company (Italics are mine) I am aware that in case of any breach of the current contract or subsequent to be signed by the (1st defendant named) in the cause of his employment with Remilords. The management of Remilords Tours and Car Hire Service Ltd is at liberty to use any legal means at her disposal to recover from me any of its property /assets damaged stolen or lost by the 1st defendant. The purport of this guarantee agreement is that the claimant is entitled to use any legal means to recover loss of stolen property/assets traceable to the 1st defendant. The 2nd defendant by Exhibit C3 is bound to repair or replace any damage to the claimant’s property/assets flowing or occasioned by the misconduct of the 1st defendant. The agreement also covers breach of contracts traceable to the 1st defendant and states that the claimant can use any legal means to recover its property / assets that have become lost or damaged or stolen as a result of the said breach of contract. The claimant is claiming against the 2nd defendant relying on Exhibit C3 #120, 000.00 (One Twenty Thousand Naira) only being 3 months’ salary in lieu of notice owed it by the 1st defendant. (Relief 2) and #500,000.00 (Five Hundred Thousand Naira) general damages for breach of contract of employment (Relief 3). The claimant’s entitlement to three months notice or salary in lieu is contained in Exhibit C2, paragraph 4 which reads “Each party shall be at liberty to disengage as follows; Three month’s notice or full gross salary of three (3) months in lieu of notice. This disengagement policy applies both before and after confirmation.” The covenant for the payment of three month salary in lieu is not repeated in the Exhibit C3 so as to make the 2nd defendant liable, as nowhere in Exhibit C3 did the claimant include that the guarantor was to guarantee the 1st defendant observed and complied with the terms of the contract and indemnify the claimant in the event of breach. Contract for guarantee being distinct contract specially stipulates the scope of indemnification by its own terms (i.e. the degree to which a guarantor is required to indemnify the employer). The guarantee agreement has specified within its terms the manner and means the liability of the guarantor shall be discharged and against what. The claimant is claiming for breach of contract and in order to succeed in this claim based on Exhibit C3 the claimant must show to the court how any of its property /assets were damaged stolen or lost by the act of the 1st defendant so as to hold the 2nd defendant responsible under Exhibit C3. Nothing in Exhibit C3 entitles the claimant to claim against the 2nd defendant for any money the 1st defendant ought to have paid. I find that nothing in the claimants case can be likened to mean that the payment of three months salary in lieu of notice can be considered property or assets lost, damaged or stolen. The specific wordings of paragraph 3 of Exhibit C3 do not extend to payment of moneys due (on account) to the claimant, I find. The paragraph although provides for a breach of contract qualifies the and limits the scope of the guarantor liability to issues involving lost, damage or theft of property and the court has not been shown how the relief 2 amounts to a lost, damage of theft. In addition the claimant has not satisfied the court that the 1st defendant abruptly left their services without making the necessary payment. The pleading “that sometime in January 2013 the 1st defendant abruptly…..left services of the claimant” Paragraph 3 statement of fact. No evidence was tendered as to support this pleading. The defendants raised the issue, that the 1st defendant a wrote a letter of resignation to the General Manager, this was neither acknowledged no refuted by the claimant during cross-examination. Had such a letter been brought to court it would have given indication that the 1st defendant had indeed left the claimant and throw some light as to the date and manner in which she left. If such a letter actually exists. The claimant pleaded that the 1st defendant left abruptly but led no evidence of what action it took thereafter, did the 1st defendant abscond, and the action the claimant took in discipline;- what did the claimant do. This would have helped the court make a finding on the situation. Now if the claimant had put any evidence of this before the court, the court would then be required to determine whether the abscondment of the 1st defendant was a misconduct covered by Exhibit C3. Furthermore, the words “that each party is at liberty to do not in themselves create a legal right, liberty which by the OXFORD ADVANCE LEANER’S DICTIONARY 17TH EDITION @ OXFORD UNIVERSITY PRESS 2006 is defined as freedom. That the party is free to give the 3 months notice. Nothing there create a mandatory condition or a condition precedent. As being at liberty to do something simply mean one is free to do it. There is no compulsion so as to create a legal right as obligation. Denial of which could give rise to and actionable injury or an act recoverable by legal redress. For the above reasons relief 2 therefore fails. Relief 3 is for damages in breach of contract to the tune of N500, 000.00, the claimant has not shown the court how it arrived at this sum of money, considering the 2nd defendants liability is limited to damage to or loss of or the stealing of the claimants property or asset the court is required to be satisfied that the 1st defendant caused the claimant loss/damage/theft of its property or assets, I find that the claimant cannot proceed against the 2nd defendant for breach of contract without proving the damage loss or theft of its property or assets by the 1st defendant. DW while giving evidence testified that the only loss the company talked about was that it had not benefited from the 1st defendants training in IIATA. This loss was neither pleaded nor proved and is somewhat futuristic as well as speculative, what assurance does the claimant have that the 1st defendant’s training in IIATA would have given them some benefit which they had lost by her leaving a fortori a benefit of N500, 000.00. The court have been directed not to entertain nebulous and vague claims; see UNIVERSITY OF JOS V. DR M. C. IKEGWUOHA  9 NWLR (PT. 1360) 478, and I find the claim of the loss of an unquantified earnings from anticipated added value, not actualized or imperially established, from the said IIATA training is intangible and unproved. Therefore this reliefs also fails. The 4th relief was for the cost of this suit. The law is that cost follow the even and in the instant case the claimants are not entitled to the cost of this suit. All in all the claims of the claimant lack merit and are hereby dismissed. Judgement is hereby entered. …………………………………………… Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division.