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REPRESENTATION Olabode Olanipekun, with Messrs Bolararinwa Awujoola, Faith Adarighofua, Michael Akinleye, Joy Adeji and Mayowa Ajileye, for the claimant. Samuel Etuk, with E. M. Obasi, Uma Olugu and Kemfon Josephneke, for the defendant. JUDGMENT 1. The claimant filed this suit on 18th July 2014. By an order of this Court granted on 25th February 2016, the claimant’s statement of facts and witness statement on oath were amended. By the amended statement of facts, the claimant prayed for: (i) A declaration that the claimant having resigned her appointment with the defendant on 19th May, 2014, the defendant was without any authority or power to dismiss the claimant from its services as per the defendant’s letter dated 22nd May, 2014, but which was delivered to the claimant on 21st May, 2014. (ii) A declaration that the defendant’s letter dated 22nd May, 2014, but hand delivered to the claimant on 21st May, 2014 purporting to dismiss the claimant from the services of the defendant was/is a make belief, fake, deceitful, made and delivered in bad faith, suspicious, mean, petty, irregular, null and void and of no effect whatsoever. (iii) A declaration that the defendant breached, encroached on and violated the claimant’s enshrined constitutional right to fair hearing in its bid, rush and hurry to dismiss the claimant and damage her career and future. (iv) A declaration that the claimant in participating in the registration of Woman in Management and Leadership Association under the Companies and Allied Matters Act, as well as its activities did not violate any known and acceptable rules and regulations of the defendant. (v) A declaration that the claimant does not have the power or right to deregister Woman in Management and Leadership Association as demanded by the defendant. (vi) Further to (v) (supra), a declaration that the defendant does not have the right to dismiss or purport to dismiss the claimant for her failure to de-register Woman in Management and Leadership Association as demanded by the defendant. (vii) An order setting aside the defendant’s letter of 22nd May, 2014 but hand delivered to the claimant on 21st May, 2014 purporting to dismiss the claimant from the employment of the defendant. (viii) An order directing the defendant to pay all the claimant’s entitlements on gratuity as follows: Basic Salary N155,359.50 x 9 = N1,398,235.5 Housing Allowance N61,162 x 9 = N550,458.00 Transportation Allowance N25,000.25 x 9 = N225,002.25 Furniture Allowance N11,628.25 x 9 = N104,654.25 TOTAL = N2,278,350.00 (ix) An order directing and/or mandating the defendant to provide and/or give to the claimant an introductory letter, accompanied by all necessary documents to the Pension Service Commission to enable the claimant access and claim her pension entitlements to which she has made contributions over the years. (x) General and exemplary damages in the sum of N100,000,000.00 against the defendant and in favour of the claimant for the embarrassment, stress, trauma and opprobrium inflicted on the claimant by the defendant’s action in purporting to dismiss the claimant from its services. (xi) An order of perpetual injunction restraining the defendant either by itself, Chairman, Managers, Officers, directors, Agents, Privies or through any person or persons howsoever from treating or further treating the claimant as a dismissed staff of the defendant. 2. In reaction to the claimant’s originating processes, the defendant filed a statement of defence as well as the other defence processes on 12th September, 2014. At the trial, the claimant testified on her own behalf as CW. The claimant in support of her case tendered several documentary evidence which were admitted and marked as Exhibits CW1 - CW40. For the defendant, Olajide Oshinfowokan, Senior Manager Human Resource, testified as DW, and tendered some documentary evidence marked as Exhibits Dl - D10. At the conclusion of trial, parties filed and served their respective written addresses. The defendant’s final written address was filed on 28th April 2017, while the claimant’s was filed on 9th May 2017. The defendant did not file any reply on points of law. THE CASE OF THE CLAIMANT 3. To the claimant, by a letter of appointment dated 26th November 2007, she was offered an employment to the post of a Principal Manager in the defendant, which she accepted vide a letter dated 28th November 2007. The terms and conditions of the employment including the salary and allowances, termination of the contract and review of the terms of the contract were clearly outlined in the said letter. By a letter dated 11th July 2008, the defendant confirmed her appointment after a successful completion of the probationary period of six months. Further to her appointment, she became the first head of the Examination Department of the defendant. In that capacity, she re-arranged, restructured and overhauled the entire department, which has since then become the cynosure and heartbeat of the defendant. As a result of the unprecedented success and progress she achieved in the Examination Department, she was moved to the Directorate of Capacity Building as Head of the Mandatory Continuing Professional Education Programme (MCPEP), which caters for the continuing professional development of managers and middle/high level officers across the nation. That she was a member of the Management team of the defendant between 2nd January 2008 and 19th May 2014. That throughout the course of her employment with the defendant, she demonstrated commitment, integrity, industry, brilliance and was very hardworking. All of this earned her official commendations from the defendant. By a letter dated 18th November 2013 and titled “LETTER OF COMMENDATION†(Exhibit CW8) the defendant wrote: “I wish to express profound commendation for your efforts to secure juicy account from NNPC worth N3,699,600.00 to Nigerian Institute of Managementâ€. 4. The claimant went on that to the knowledge of the defendant, the claimant is a strong advocate of mentoring and capacity building for both young and female managers in order to place them in management and leadership positions for nation building. Sometime in 2011, she together with other likeminded women with passion for mentoring and capacity building for both young and old female managers decided to form an all-embracing women, nonprofit making, association known as Women in Management and Leadership Association (WIMA). This association is the first of its kind in Nigeria as there was no other association with same or similar objectives and functions prior to the conceptualization and formation of WIMA. The aims and objectives of the association are clearly delineated in its constitution (Exhibit CW12). That as firmly established under cross-examination, the claimant, who was then in the employment of the defendant, approached the management of the defendant and suggested that a women only association be incorporated as a ‘female wing’ of the defendant. The defendant, however, refused and turned down the suggestion on the basis that its statutory mandate does not permit the setting up of such association. Interestingly, it was further established under cross-examination that the claimant was advised by the defendant to register the association as an independent association, which had no bearing with the defendant who had expressed disinterest in such an association. Furthermore, that it was decided by the promoters of WIMA including the defendant to register the association with the Corporate Affairs Commission (CAC) as an independent non-profit making organization for the benefit of women in particular, and the Nigerian society in general. As part of the requirements of the Companies and Allied Matters Act (CAMA) for registration of WIMA under Part C, public notices in respect of the registration of the association were published in several notional dailies, including but not limited to the Leadership newspaper of Wednesday, 11th July 2011, on page 50 thereof (Exhibit CW11). That the essence of publication of the intention to register an association under Part C is to allow for objections or opposition to the registration by any party whose interest is likely to be affected by the registration; and that the defendant did not at any point raise any objection or opposition to the registration of the association either to the claimant or at the CAC. 5. The claimant continued that WIMA is a joint initiative of highly successful women in different spheres of life, and it is not the private or a personal platform of the claimant. However, following the successful registration and inauguration of WIMA the defendant issued a query to the claimant vide a Memo dated 17th March 2014 (Exhibit CW19) wherein it was alleged that WIMA was registered by the claimant to defraud the defendant of its intellectual property. In so acting, that the defendant purported to premise same on the fact that prior to the registration of the WIMA, the claimant had anchored conferences under the auspices of the defendant styled “Women in Management and Leadership Conferencesâ€. The defendant also alleged in the said query that the claimant’s position as the President of WIMA while still in the employment of the defendant amounts to conflict of interest and divided loyalty. The claimant replied the said query on March 21, 2014 (Exhibit CW27) and denied unequivocally all the allegations leveled against her. In her reply, the claimant specifically explained how WIMA came about and that it is not in conflict with the defendant or its Women in Management Conferences and workshops. By an internal memo dated 1st April 2014, written on behalf of the defendant by the same Anthony Duku who had commended the claimant in a letter dated 18th November 2013 (Exhibit CW8), the claimant was placed on indefinite suspension. Whilst still serving the indefinite suspension, the claimant was invited vide another internal memo dated 9th April 2014 (Exhibit CW22) written by the same Anthony Duku to appear before a Disciplinary Committee on 24th April 2014. By another internal memo dated 2nd May 2014 sent to the claimant by the same Anthony Duku, the claimant was directed to quickly deregister WIMA. In response to defendant’s directive, that the claimant rightly stated in a letter dated 14th May 2014, that she has no power to deregister WIMA which was duly incorporated with its own registered trustees as shown in the Certificate of Incorporation. On 19th May 2014, the claimant served the defendant with her letter of resignation from defendant’s employment. However, upon receipt of the claimant’s letter, the defendant wrote a letter to the claimant dated 21st May 2014 purporting not to accept the claimant’s resignation “as investigation is ongoing with regards to your involvement in WIMAâ€. That strangely, and in a show of grave bad faith, on the same 21st May 2014 and despite its letter to the claimant that investigation was ongoing, the defendant purportedly and unlawfully dismissed the claimant by a letter dated 22nd May 2014 but which was delivered to the claimant on 21st May 2014. It is against the background of this illegal dismissal that claimant has presented here claims in this suit. THE CASE OF THE DEFENDANT 6. The case of the defendant is that the claimant was actually offered employment in 2007 and was placed on 6 months’ probation period. That the claimant who was involved in and eventually anchored and coordinated the defendant’s Women in Management Conference clandestinely lured women involved in the defendant’s conferences aforesaid to form Women in Management and leadership Association and served them with the defendant’s template. That the claimant caused her own organization to be called WIMA an acronym widely associated with the defendant. The defendant proceeded that the claimant’s Women in Management and Leadership Association (WIMA) had objectives which were all the scope and focus of defendant’s Women in Management Conference. That the registration of Women in Management and Leadership Association by the claimant is a violation of fidelity enshrined in defendant’s Employee Handbook/Rules and Regulations. That defendant alleged that the claimant acted fraudulently by registering her WIMA without the knowledge of the defendant. The defendant then gave particulars of the alleged fraud in the statement of defence. The defendant queried the claimant over her involvement in Women in Management and Leadership Association by its letter dated 17th March 2014. The claimant replied the query. On 21/3/2014, the claimant appeared before a Disciplinary Committee which tried her and found her guilty of breaching the provisions of the Employee Handbook and accordingly dismissed her. The defendant stated that it has the right to reject the claimant’s resignation in the circumstances. That the claimant was under investigation and on suspension; and in accordance with section 2.7.1(3) of the Employee Handbook, she was eventually dismissed. THE SUBMISSIONS OF THE DEFENDANT 7. The defendant submitted four issues for the determination of the Court, namely: (i) Whether the dismissal of the claimant from the employment by the defendant was in accordance with the claimant’s terms and conditions of employment. (ii) Whether the claimant was given fair hearing by the defendant’s disciplinary committee that tried her and found her deserving of dismissal. (iii) Whether the defendant had the discretion to accept or reject the claimant’s voluntary resignation under the circumstances and facts of this case. (iv) Whether the claimant is entitled to her claims in the circumstances of this case. 8. On issue (i), the defendant submitted that the letter of employment (Exhibits CW4 and D1) together with the defendant’s Employee Handbook (Exhibit D10) form the terms and conditions of the claimant’s contract of employment, citing Ladipo v. Chevron Nig. Ltd [2005] 1 NWLR (Pt. 907) 277; as such any disciplinary action against the claimant such as her dismissal, evident in Exhibits D8 and CW27 and the pleadings, must follow the procedure in the defendant’s Employee Handbook (Exhibits D10), referring to UBN Plc v. Soares [2012] 11 NWLR (Pt. 550) - the page is not supplied. To the defendant, section 3.2.1 of Exhibit D10 provides thus: These policies are designed to ensure that all employees of the Institute achieve and maintain decent and acceptable standards of conduct and behavior on the job. The aim is to also ensure consistent and fair disciplinary action in cases of violation of the institute’s rules and regulations by the employees. In the event of any breach of the Institute’s laid down rules and regulations, the following procedure shall be followed: steps to Disciplinary Measures a) Apprehension b) Query c) Defence/Explanation d) Action on Query. 9. That the claimant’s case was not such that she is being apprehended. She was duly queried (referring to Exhibit D2); she answered to the query (Exhibits D3). That in compliance with the procedure, action was taken on the query, referring to section 3.2.1 (at page 39 of Exhibit D10). She was placed on suspension while the matter was investigated and she was eventually dismissed (referring to pages 40 and 41 of Exhibit D10). That from the pleadings and evidence, it is not in dispute that the claimant was accused of serious misconduct constituted by the breach of Part 3, section 3(1)(a) of the defendant’s Employee Handbook at page 35 (Exhibit D10), referring to Exhibits D2 and CW19. That the QUERY is dated 17th March 2014 issued to the claimant by the defendant. That the facts of breach are clearly stated in the said Exhibits D2 and CW19. That from Exhibit D3, the answer to the query, it would be gathered that the defendant had a programme called Women in Management Programme, which the claimant anchored from 2009 and 2010 with a total of five (5) successful editions/runs. That even WIMA lapels with NIM logo were sold to the women with the intention of continued sales afterwards. That according to the claimant some chapters of the association were inaugurated with Ibadan being the first in 2009. During this time, the claimant was the pro-term National Coordination of the association. That Exhibit D3 went on to state: It will be noted that on the investiture of Dr. Mrs. Sally Nkem Adiukwu-Bolujoko-OON, FNIM as the 17th President and Chairman of Council of the Institute, the association came and was officially allowed to make speech and presentation to the new President in the course of the programme. Also, during her first (1st) official visit to the South-South (Port Harcourt to be precise) in 2010, WIMA Rumuola (Port Harcourt) Chapter with Mrs. Jumai Madume (MNIM) as chairperson, went to officially receive her at the Airport (on her arrival) and provided company for her throughout her visit, as female members of NIM under the aegis of the Association (WIMA). They reported her delight and encouragement for unity and even satisfaction with my efforts in mobilizing them. 10. to the defendant, by admission from the claimant in Exhibit D3, part of which is reproduced above, it can be seen that WIMA had been in existence as the defendant’s association with chapters duly inaugurated across the country. The claimant was the pro-term National Coordinator and was responsible for mobilizing the women who were members of the defendant Institute. That WIMA of the defendant was albeit not registered with the Corporate Affairs Commission (CAC) as a body corporate. That in September 2011, the claimant without the permission, consent and authority caused Women in Management and Leadership Association to be registered by the CAC. Still in Exhibit D3, she explained her action as the exercise of her fundamental right to belong to an association. She went on to state that: “Women in Management and Leadership Association WIMA, a not-for-profit association was formed as a platform for female managers and leaders to meet and discuss issues of common interestâ€. That it can be seen that the claimant hijacked WIMA from the defendant, she used the defendant’s platform to launch her own WIMA. The women she used to register and launch her WIMA were members of NIM. That the claimant much well admitted this in this Exhibit D3 when she said: “...with Mrs. Jumai Madume (MNIM) as chairperson, went to officially receive her at the airport (on her arrival) and provided company for her throughout her visit, as female members of NIM under the aegis of the association (WIMA). They reported her delight and encouragement for unity and even satisfaction with my efforts in mobilizing themâ€. It is, therefore, the defendant's submissions that when the claimant registered Women in Management and Leadership Association, she did nothing different but registered defendant’s unregistered association WIMA for her own purposes. Her members and structure of her organization were those of the defendant. She clearly called her association WIMA, referring to Exhibit CW14. That for using information, structure and platform entrusted on her as anchor person of the defendant’s women programme and later as pro-term national coordinator of the defendant’s WIMA, she was rightly queried to have breached Part 3, section 3, sub-section l(a) of the defendant’s Employee Handbook, which deals with FIDELITY. That Exhibit CW20 and D2 clearly show the conflict of interest between the defendant employer and the claimant employee in relation to Women in Management and Leadership Association (WIMA), which no doubt is serious misconduct. 11. The defendant went on that Exhibit D10, section 3.2.1 sets out, under disciplinary procedure, the steps in disciplinary measures to be: apprehension; query; defence/explanation; and action on query. To the claimant, the defendant submitted that “apprehension†was not applicable to her offence. That the serious misconduct of the claimant was such that attracted “queryâ€, which the defendant duly issued in compliance with the provision of section 3.2.1(b) of Exhibit CW28 and D10. That the claimant replied to the query but the defendant, not satisfied, suspended the claimant in compliance with section 3.2.1(d)(iii), referring also to Exhibit D5, which placed the claimant on suspension for the time being. That the claimant was duly invited to attend a disciplinary committee set up to consider her breaches, citing Exhibits D6 and CW22 and Longe v. First Bank of Nigeria Plc [2006] 3 NWLR (Pt. 967) 228. That the claimant duly attended the disciplinary committee and defended herself. While investigation was yet to be completed, the claimant resigned her appointment, which the defendant rejected, referring to Exhibit D7. The claimant was, at the conclusion of all considerations, dismissed from the defendant’s employment in accordance with section 3.2.1(d)(v) of Exhibit D10. To the defendant, due process was followed in the process of the claimant’s dismissal and the dismissal was in substantial compliance with the rules and regulations of the defendant set out in the Employee Handbook given that the claimant clearly breached the rule against fidelity and used official information available to her to further her interest of her nongovernmental, not-for-profit organization. That the duty of the Court is to determine whether due process was followed in dismissing the claimant, citing UBN Plc v. Soares [2012] 11 NWLR (Pt. 550), and urging the Court to find and hold that due process was followed by the defendant in dismissing the claimant. 12. Furthermore, that it is an error to identify conflict of interest with “profitâ€; as such when the defendant rules prohibit private business, the aim was to avoid a conflict of interest. That Black’s Law Dictionary, ninth edition at page 341 defines “conflict of interest†thus: “A real or seeming incompatibility between one’s private interests and one’s public or fiduciary duties...†That consideration of Exhibits CW14, CW20 and D2 is clear evidence of the conflict of interest between the claimant’s Women in Management and Leadership Association and her duties to the defendant and/or interest of the defendant. That “WIMA†can be seen in Exhibit CW14, referring to Exhibit CW20 where it will be found that this “WIMA†has been used by the defendant in its programmes anchored and coordinated by the claimant. Not only that, that it will also be found that women who constituted the claimant’s “WIMA†are members of the defendant Institute, referring again to Exhibit CW20. Finally on this issue, that breach of fidelity rules of the defendant does not reside on engaging in business for profit making; it also involves the use of information and knowhow acquired in the process of employment to further the course of another organization. That through the claimants WIMA may be a non-profit organization, the claimant breached the rule against fidelity and her dismissal is well deserved, due process having been followed in her dismissal. 13. For issue (ii), the defendant submitted that when a party alleges that he or she was not given or was denied fair hearing, the necessary facts of such breach must be pleaded and relevant evidence given in support. This is trite. That reading through the claimant’s pleading and her evidence of her fundamental right to fair hearing in the process leading to her dismissal, the law is well established that he who alleges must prove, citing section 131(1) and (2) of the Evidence Act 2011, Womiloju v. Anibire [2010] 42.2 NSCQR 879 at 881 and AG, Rivers State v. AG, Bayesa State [2013] 3 NWLR (Pt. 1340) 123 at 136. That the Court cannot decide or make a declaration that the fundamental right of the claimant was breached in a vacuum. However, that the claimant was given the right to be heard in the process leading to the decision to dismiss her and she fully used the opportunity. Firstly, that she was queried according to the provision of Exhibit D10. She replied the query. Next, a Disciplinary Committee was set up to investigate her conduct and she was duly invited to the committee hearing, referring to Exhibit D6. She duly attended the committee meeting and defended herself. A decision was taken at the end of investigation to dismiss her, referring to Ekpenetu v. Ofegobi [2012] 15 NWLR 276 and Zakari v. Nigerian Army [2012] 5 NWLR 478. The defendant then urged the Court to hold that though the facts of breach of fundamental right to fair hearing were not pleaded nor given in evidence at the trial by the claimant to warrant a determination, the defendant afforded the claimant the right to be heard and her fundamental right to fair hearing was not violated. That the allegation of breach of fair hearing is not a mantra to be waved or invoke in a vacuum; facts evidencing it must be pleaded and given in evidence. That the dismissal of the claimant from the defendant’s employment is a fact evident in Exhibit CW27 and D8. We submit that the claimant’s dismissal was the result of substantial compliance with procedure established in Exhibit D10. Due process was followed. The claimant’s dismissal was therefore proper. Nothing in Exhibit CW27 and D8 make it a fake letter. Nothing in the claimant’s dismissal makes it fake or make belief, deceitful, suspicious, mean, petty, irregular, null and void. There is nothing whatsoever to nullify the letter dated 22nd May 2014, Exhibit CW27 and D8. That the fact that the letter was delivered to claimant the day proceeding the date on the letter does not make it a counterfeit or fake; it simply means it was postdated, the decision having been taken on 21st May, 2014, urging the Court to hold that the claimant’s dismissal was proper. 14. Regarding issue (iii), the defendant referred to section 2.7.1 of Exhibit D10 (at page 28 thereof), which deals with resignation of appointment, provides thus: An employee can resign from the services of the Institute after giving appropriate notice as follows: i) Junior Staff to Principal Managers - One month notice or payment of one month basic salary in lieu of notice. ii) Assistant Directors to Registrar - Three months notice or three months basic salary in lieu of notice. iii) For any grade, accrued leave may be used as part of the notice period. The institute has the right to refuse such notice or payment in lieu if the employee is: a) a suspect in any case under investigation and/or b) on suspension To the defendant, this provision of Exhibit D10 in essence governs the claimant’s resignation. The defendant then referred to Exhibit CW25, where the claimant stated thus: “I wish to inform you of my decision to resign my appointment from the services of the institute with immediate effect on personal reasonsâ€. The defendant then submitted that the claimant was not in accordance with her conditions of employment as she failed to give the requisite notice or salary in lieu. That the claimants voluntary resignation is clearly short on NOTICE to the defendant. That while Exhibit D10 demands at least one month’s notice or salary in lieu, the claimant gave none but “immediate effect†without giving the requisite notice of resignation or salary in lieu as provided for in the defendant’s Employee Handbook. Given this, that the defendant had the discretion to reject her resignation and the defendant was right in rejecting the purported resignation, referring to Amokeodo v. IGP [1999] 6 NWLR (Pt. 607) 467 and Fetuga v. University of Ibadan [2000] 13 NWLR (Pt. 683) 118. 15. The defendant further submitted that it was right in rejecting the claimant’s voluntary resignation in that doing so was is accordance with the provisions of section 2.7.1(iii)(b) of Exhibit D10, which states that the Institute has the right to refuse such notice or payment in lieu if the employee is on suspension. That by Exhibit D5, on 1st April 2014, the claimant was suspended. On 19th May 2014, the claimant handed in her resignation letter, referring to Exhibit CW25. On 20th May 2014 the defendant rejected the resignation, referring to Exhibit CW26. That clearly the claimant purported to resign while she was on suspension and investigation was ongoing. That the defendant was right to reject her resignation in the circumstances, urging the Court to so hold. 16. In respect issue (iv), the defendant submitted that the claims of the claimant in this suit are in the main declaratory. That it is trite that a declaratory claim must succeed on its own strength and not the weakness of the defendant’s case, citing AG, Rivers State v. AG, Bayelsa State (supra) at page 136 ratio 17. That a prima facie case of serious misconduct of the breach of the rule against fidelity was established by the defendant against the claimant, referring to Exhibit D3 and CW20. Following this, that disciplinary procedure was initiated against the claimant culminating in her dismissal in accordance with the provisions of Exhibit D10. That the claimant was given the opportunity to be heard (referring to Exhibit CW22 and D6), she defended herself and eventually was dismissed from the claimant’s employment. To the defendant, there are no facts pleaded and evidence given by the claimant to entitle the claimant to her claims in this suit. In conclusion, the defendant submitted that this case lacks merit and should be dismissed with cost. THE SUBMISSIONS OF THE CLAIMANT 17. The claimant submitted two issues for the determination of the Court, namely: (1) Having regards to the facts and circumstances of this case vis-a-vis the settled position of law, whether the purported dismissal of the claimant by the defendant is not unlawful, unfair and unconstitutional. (2) Considering the entire circumstances of the case, whether the claimant did not validly resign her appointment with the defendant on 19th May 2014. 18. For issue (1), it is the claimant’s submission that the right of an employer to dismiss his employee is not unbridled, unrestricted and absolute. It is circumscribed by the contract of employment between the parties (pacta sun servanda), existing legislation on labour matters and the 1999 Constitution (as amended). As a corollary to this principle, that an employee has the right to challenge his dismissal where he has reasons to believe that same was done in violation of his contract of employment or the Constitution; also, courts have the inherent powers to inquire into the dismissal of an employee in order to ascertain if same was done in compliance with the requirements of law and the contract of employment between the parties, referring to Abomeli v. NRC [1995] 1 NWLR (Pt. 372) 451 at 466. That the grouse of the claimant in the instant suit is that her dismissal by the defendant is unfair, illegal and unreasonable having regard to her contract of employment and her inalienable rights under the Constitution. The facts and circumstances leading to the purported dismissal of the claimant by the defendant do not disclose any justifiable basis or reason for dismissing the claimant. The law is now settled that it is not every wrong doing, mistake or misconduct on the part of an employee that entitles the employer to use the big whip of dismissal on the employee, citing Ahmed v. Ahmadu Bello University (ABU) [2016] LPELR-40261(CA). That the act of misconduct justifying dismissal must be one that offends the essential provisions of the contract, conducts which show that the servant no longer regards or treats the contract as subsisting, citing UBN Ltd v. Ogboh [1995] 2 NWLR (Pt. 380) 647 at 653 and Nwobosi v. ACB Ltd [1995] 6 NWLR (Pt. 404) 658. 19. To the claimant, a calm examination of the contents of Exhibits CW19 (query), CW20 (reply to query) and CW27 (letter of dismissal) will clearly reveal that the purported dismissal of the claimant was based on her involvement in the formation and activities of Women in Management and Leadership Association (WIMA). Specifically, Exhibit CW27, the letter of dismissal provides thus: “From the foregoing it is established that you have operated contrarily to the rules and regulation of the Institute, which management considered your actions as inimical to the progress of the Instituteâ€. That paragraph 32 of the statement of defence is very instructive in establishing the reason for dismissal of the claimant. The said paragraph provides thus: “The Defendant admits the (sic) paragraph 25 of the Statement of Facts and further states that the query was prepared once it was ascertained the Claimant was involved in Women in Management and Leadership Association…†Furthermore, at paragraph 44(N} of the statement of defence, the defendant avers as follows: “…Dismissal is the only just and fair measure befitting the Claimant for her conduct of promoting women in management and leadership Associationâ€. Thus, the claimant’s participation in WIMA was the central issue in her dismissal by the defendant and forms the basis for the defendant’s allegation that the claimant operated contrary to the rules and regulation of the defendant as stated in Exhibit CW27, the letter of dismissal. 20. That in its further attempts to justify the dismissal of the claimant, the defendant had in its written address relied heavily on the contents of Exhibit CW20, the claimant’s reply to the query. Indeed, the entire argument of the defendant under its issue (i) is, essentially, anchored on the claimant’s response in Exhibit CW20. In this respect, the claimant drew the attention of the Court to the apparent misrepresentation of the content of Exhibit CW20 by the defendant. That this misrepresentation clearly forms the basis and nucleus for the entire submission of the defendant under its issue (i). That the defendant erroneously contended in its written address that claimant’s response to the query is an admission of the fact that WIMA had been in existence as the defendant’s association with chapters duly registered across the country. That the law is trite that in construing and/or interpreting any document, the Court must consider the entire document. The contents of the document must be interpreted as a whole and not in piecemeal as the defendant has attempted to do in this case. To the claimant, contrary to the interpretation being foisted on this Court in respect of the portion of Exhibit CW20 quoted by the defendant, the reference to WIMA in the said portion clearly relates to claimant’s association. That it is erroneous to say that the reference to WIMA in the said portion is an admission by the claimant that WIMA had been in existence as the defendant’s association. Applying the principle of law on construction of documents, the claimant referred to Exhibit CW20, particularly to the paragraphs preceding the paragraphs quoted by the defendant thus: The Registrar asserted that after consultations with some past Presidents, the association could not be operated as a part of the Institute but as an independent, autonomous body. Dr. Agbarakwe then opined that with freedom of association in Nigerian Constitution, people are free to belong to any association of their choice. Dr. Mrs. Bolujoko advised that wisdom should be used to explain the development to the women. That was done, but rather than being discouraged, the women accepted continuing with the association as an autonomous entity. It will be noted that on the investiture of Dr. Mrs. Sally Nkem Adiukwu-Bolujoko OON, FNIM, as the 17th President and Chairman of Council of the Institute, the association came and was officially allowed to make a speech and presentation to the new President in the course of the programme... There was never an official communication for the discontinuation of the association. 21. The claimant went on that what is clearly apparent from the above paragraphs of Exhibit CW20 is the fact that the association (WIMA) referred to by the claimant in the said exhibit is not part of the defendant neither does it belong to the defendant. As stated in the said exhibit, the association is an independent and autonomous entity with various chapters. Also apparent is the fact that the defendant was at all times fully aware and approved the operation of the WIMA as an independent and autonomous entity. That in the circumstances, the defendant cannot be allowed to turn around and punish the claimant for heeding its advice to operate the organization independent of the defendant. The defendant had argued that the claimant hijacked WIMA from it and used defendant’s to launch her own WIMA is off target. To the claimant, from the portion of Exhibit CW20 quoted by the defendant, it is clear that the defendant was briefed by the claimant and intimately aware of the formation of the WIMA. That the contents of Exhibit CW20 which the defendant has freely quoted show that there was nothing clandestine or secretive about the formation of WIMA. The association was recognized by the defendant as an independent association. 22. The defendant had further argued that that the defendant’s WIMA lapels were sold at it Women in Management Programme and that WIMA has been used by the defendant in its programmes anchored and coordinated by the claimant. To the claimant, this submission is not supported by the evidence before the Court. That there is nothing before this Court to show that the defendant has used the acronym WIMA in any of its programmes or that WIMA lapels were ever sold at its Women in Management Conferences as alleged by it. Also that the defendant failed to establish that, by participating in the activities of WIMA, a not for profit association, the claimant had breached her terms of employment. This is evident in the defendant’s attempt to redefine the basis of its case against the claimant by alleging that claimant used information and knowhow allegedly acquired in the process of her employment to further the course of WIMA. That the nature of the knowledge and knowhow allegedly acquired by the claimant was not demonstrated before this Court and no evidence was adduced by the defendant to show how the defendant (sic) used this knowledge to allegedly advance the course of another organization. 23. The claimant continued that whilst it is not in doubt that an employer is not obliged or mandated to provide any reason for lawfully terminating the appointment of an employee, where the employer gives a reason, the law imposes on him a duty to establish the reason to the satisfaction of the Court, citing Olatunbosun v. NISER [1988] 3 NWLR (Pt. 80) 25 at 51, SPDC Ltd v. Olarewaju [2008] 18 NWLR (Pt. 1118) 1 at 20 and UBA Plc v. Oranuba (2014) 2 NWLR (PT 1390) 1 at 21. That having provided a reason for the dismissal of the claimant in Exhibit CW27 and its pleadings before this Court, the defendant is under a duty to lead evidence to satisfactorily establish the reason for the dismissal of the claimant; and this the defendant did not do. That the relevant question then is whether participation in the activities of WIMA as done by the claimant is a justifiable reason for the defendant to dismiss the claimant. In answering this question in the negative, the claimant referred to her letter of employment which contains the terms and conditions of her employment as well as the defendant’s Employee Handbook, Exhibits CW2 and CW28, respectively. That nowhere in the entire documents is the claimant prohibited or prevented from belonging or participating in the activities of a non-profit making association such as WIMA. That there is no provision in the claimant’s contract of employment barring her from promoting or engaging in the activities of WIMA, a non-profit making organization. 24. To further underscore her contention, the claimant referred to the admission of DW under cross-examination. That when asked if he belonged to any association other than the defendant. DW, who is still in the employment of the defendant, admitted that he belonged to the Chartered Institute of Personnel Management which is completely different from the defendant and not owned by it. In fact, that in her response to the query by the defendant, Exhibit CW20, claimant had stated thus: “I know that many of us, staff and others belong to and maintain social, professional, religious and other linkages, associations and clubs, locally and internationally…†That the admission of DW clearly affirms the claimant’s position that there is nothing in the defendant’s Employee Handbook barring its employees from belonging to other non-profit making organizations. 25. Furthermore, that the admission by the defendant brings to the fore the unfair and discriminatory labour practices including victimization by the defendant against the claimant. That from the admission of DW, the claimant is not the only employee belonging to an association other than the defendant, yet, it was only the claimant that was singled out for summary dismissal by the defendant. To the claimant, an allegation or matter bordering on discriminatory practice against an employee constitute unfair labour practice, described as inequitable practices/policies, acts or omissions adopted by an employer which operate adversely against the beneficial interests of the employee. That it is a capricious, arbitrary and inconsistent practice by an employer. That by virtue of section 254C(1)(f) of the Constitution, this Court has the power to determine the fairness or otherwise of an employer’s policy; and a responsibility to protect workers from discriminatory and inconsistent practices/policies which negatively affect an employee, citing Mariam v. University of Ilorin Teaching Hospital Mgt. Board [2013] 35 NLLR (Pt. 103) 40 at 127 - 128 and Kurt Severinsen v. Emerging Markets' Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374, which applied the Indian case of NTF Mills Ltd v, The 2nd Punjab Tribunal, AIR 1957 SC 329. 26. The claimant continued that it is trite law that where an employer alleges that an employee has breached a term in his contract of employment, the onus is on the employer to demonstrate to the Court, the provision of the term allegedly breached by the employee. That throughout the trial of this case, the defendant did not, either in its pleadings or evidence adduced before this Court, show any clause in the claimant’s contract of employment preventing her from belonging to any other association like WIMA. The claimant noted that in paragraph 28 of the statement of defence and 30 of the DW’s statement on oath, the defendant alleged that the claimant’s involvement in WIMA contravenes clause 3.1.1 of the defendant’s Employee Handbook. That this is the clause allegedly breached by the claimant. The said clause provides thus: “Every employee shall devote the whole of his/her time and attentions to the faithful and diligent discharge of his/her duties and shall in all respect obey and observe the rules and regulations of the Institute. No employee shall engage in any private, businessâ€. To the claimant, it is important to bear in mind that the defendant’s letter of commendation, Exhibit CW8 to the claimant on her efforts to “secure juicy accounts from NNPC†for the defendant was written after the registration of WIMA. That this goes to show that the performance, dedication and commitment of the claimant were not, in any way, hampered or affected by her participation and involvement in WIMA. In fact, that at no point after the registration of WIMA in 2011 did the claimant receive any query or complaint bordering on her performance or failure to discharge her duties. The defendant (sic) had continued to discharge her duties diligently and as stipulated in her contract of employment. That there is no evidence before the Court to suggest that since the registration of WIMA the claimant has failed to devote her time and attention in discharging her duties. 27. The claimant then asked whether participating in the activities of WIMA can be rightly and justifiably described as engaging in private business under clause 3.1.1 of the defendant’s hand book; and answered in the negative. That Black’s Law Dictionary, 10th Edition, edited by Bryan A. Garner, et al, defines the word “private†at page 1389 as “of, relating to, or involving an individual as opposed to the public or the governmentâ€. That the evidence before the Court, as can be gleaned from Exhibit CW17 (the certificate of incorporation of WIMA) as well as the unshaken evidence of the claimant is that WIMA was inaugurated and registered by the claimant and other like-minded women. Specifically, the other women as can be gleaned from the said exhibits are: Tamawa Maryam Bello, Benwoke Georgenia Obunwo, Arikpo Atim Ettah, Professor (Mrs) Viola Adaku Onwuliri, Dr (Mrs) Nkechi Akubuiro, Mrs Rabi Muhammed and Mrs Shodimu Adunni Abiodun. That it is to be noted from the said profiles of these other women that they are all in paid employment like the claimant implying that participation in WIMA is not antithetical to paid employment. Furthermore, that by Exhibit CW12, the constitution of WIMA, decisions in the WIMA are taken by its National Executive Council, which, as can be gleaned in Article 13 at page 9 of Exhibit CW12, comprises of the claimant and 10 other members of WIMA. Also, that to further show that the WIMA is open to the public, in Article 9 at page 6 of Exhibit CW12, WIMA welcomes “partnerships and collaboration from local and international organizations and bodies that share WIMA’S vision of promoting professional excellence among female managers and leadersâ€. Without belaboring this issue, that it becomes obvious that the WIMA is not and cannot, by law and evidence, be the defendant’s “private†business. 28. Additionally, that the word “business†has been defined by the said Black’s Law Dictionary (supra) at page 239 as “a commercial enterprise carried on for profitâ€. That from this definition, it is obvious that a “business†presupposes a commercial venture for profit-making. That the description of WIMA as a business or enterprise negates the evidence before the Court in WIMA’s constitution, Exhibit CW12, where Article 26 thereof on page 22 provides thus: THE INCOME AND PROPERTY OF WOMEN IN MANAGEMENT AND LEADERSHIP ASSOCIATION (WIMA) howsoever derived, shall be applied solely towards the promotion of the objects of the ASSOCIATION as set forth in the Constitution: and no portion therefore be paid or transferred directly or indirectly, by way of dividend, bonus, or otherwise howsoever by way of profit, to the members of WOMEN IN MANAGEMENT AND LEADERSHIP ASSOCIATION. In fact, that Articles 2 and 3 at page 4 of the said Exhibit CW12 reels out the Vision and Mission of the WIMA as an organization which has no risk or intention of making profit in the following manner: WIMA’S VISION To be a driving force of professional excellence among female managers and leaders." WIMA’S MISSION i. To be an effective channel for the dissemination of management and leadership information and excellent feminine values. ii. To be a catalyst for enabling women optimize their leadership endowments and potentials. Clearly, therefore, that it is beyond dispute that WIMA, not being a private business, does not come under clause 3.1.1 of the defendant’s Handbook. That the defendant has failed to present any evidence to justify its allegation that the claimant’s participation in the activities of WIMA is in breach of clause 3.1.1 of her terms of employment, referring to Adedeji & ors v. CBN & ors [2013] 36 NLLR (Pt. 107) 1 at 47, which held that where breach is alleged evidence of such a breach becomes indispensable at the trial court for effective intervention. 29. To the claimant, as further established under cross-examination of the claimant, she had prior to the registration of WIMA in 2011, approached the management of the defendant and discussed same with it. In fact, that she had suggested that the association be established as a women wing of the defendant. The defendant did not accept this advice on the ground that its mandate and enabling/establishing statute did not contemplate and permit the establishment of any such association. Importantly, that she was encouraged and advised to register the association as an independent association “outside†the defendant. That the law is trite that evidence elicited under cross-examination is the best form of evidence for the party cross-examining, citing Omisore v. Aregbesola [2015] 15 NWLR (Pt. 1482) 205 at 322. That at no point prior to the registration of the association did the defendant raise any objection or opposition to the establishment or registration the WIMA. That the position of the law is crystal clear on the doctrine of condonation by an employer. That assuming without conceding that the acts of the claimant constitute misconduct, the defendant had by its action condoned same and cannot now purport to dismiss the claimant on the basis of the same. That the evidence before the Court clearly shows that the defendant was aware of the formation of WIMA in 2011 and had, in fact, encouraged the claimant to register same independent of the defendant. Having thus allowed the claimant to continue in its employment despite being aware of the formation and registration of WIMA, the defendant is estopped from taking any disciplinary action against the claimant on the basis of her participation in WIMA, referring to Mariam v. University of Ilorin Teaching Hospital Mgt. Board (supra) at 131, Ekunda v. University of Ibadan [2012] 12 NWLR (Pt. 681) 220 CA, ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA and Nigerian Army v. Brig. Gen. Maude Aminu Kano (2000) 1 MJSC (Pt. 1) 151. The claimant then submitted that the query issued her in 2014 and her subsequent dismissal is unlawful having regard to the fact that the defendant was aware of her participation in WIMA as far back as 2011, urging the Court to declare the query and the subsequent dismissal of the claimant as null and void. 30. The claimant went on that in its desperate bid to justify her dismissal on the basis of her involvement in the WIMA, defendant made several baseless, unsubstantiated and mischievous allegations against her in its statement of defence and its witness statement on oath, which allegations can be summarized thus: defendant alleged that the vision, mission and objectives of WIMA form part of the scope and focus of defendant’s Women in management conference; that the claimant acted fraudulently, maliciously and clandestinely in registering WIMA; that the claimant used her position as a member of the defendant’s management team and coordinator of its women in management conference to divert all the women mobilized and trained by the defendant into WIMA and used defendant’s templates, information and acronym WIMA to organize and launch the association; and that the persons mentioned as patrons and Trustees of WIMA were cajoled and deceived by the claimant about the true status of the association as they are under the false impression that the Association is promoted by the defendant. To the claimant, the law is settled that the onus and duty is on a person who alleges the existence of an act, fact or thing to prove same by credible evidence before the Court, citing CPC v. INEC [2011] 18 NWLR (Pt. 1279) 493 at 540, UBN Plc v, Ishola [2001] 15 NWLR (Pt. 735)47 at 73 and Melifonwu & ors v. Egbuyi & ors [1982] 9 SC 145 at 165. 31. That in making these wild allegations against the claimant, the defendant has sought to create the erroneous/misleading impression that the claimant’s WIMA appropriates defendant’s templates, modules and structure of its Women in Management Conference. In fact, that the defendant had alleged in both its query to the claimant, Exhibit CW19, and its pleadings before this Court that WIMA is a calculated attempt at defrauding the defendant of its intellectual property right. In order to dispel these deliberate misrepresentations, the claimant submitted that from the evidence before this Court, the defendant does not have any organization or association like the claimant’s WIMA. It also does not have an association with the acronym W.I.M.A. That there is no evidence before the Court to show that the defendant has any association or organization known as WIMA or evidence from which the Court can validly infer that the vision, mission and objectives of claimant’s WIMA are part of the defendant’s women in management conference. That DW confirmed that the defendant does not own any organization. He also admitted under cross-examination that he has never attended any of WIMA’s programmes, hence he is not in a position to give any evidence on the operations, organization and programmes of WIMA. The defendant did not tender any document to show the vision, mission and objectives of its women in management conference. In fact, that DW does not even know anything about the said conference. His false testimony of having attended one of the said conferences was exposed when asked under cross-examination of the venue of the conference and he could not answer. That this further confirms the claimant’s case that the defendant does not have any association or organization with the same vision, structure and objectives as WIMA. The reason for this is not far-fetched, as admitted by the defendant under cross-examination, the Act establishing the defendant does not allow or permit the setting-up or owning of other associations by defendant. That instead of encouraging and commending the claimant for having an initiative for a non-profit making organization which betters the lives and ambitions of professional women, the defendant illogically condemned her claiming that she is using an unproven intellectual property of the defendant. That one important fact from the foregoing is that the defendant assumes that WIMA is a profit making venture for the claimant and acted under this misconception with hate against the claimant seemingly because it should have been the one to benefit from such “businessâ€. That this is strange since the defendant itself is meant to be a non-profit making organization and should be seen to encourage similar organizations hence section 1(11) of the NIM Act acknowledges that an association can even, at the discretion of its Council, be admitted as a member of the defendant in the following manner: “Corporate members, firm, company, association, institution or other corporate or incorporated body may at the discretion of the Council, be admitted as a corporate member and admission as a corporate member shall not confer professional membership of the Institute on any member of the company or organizationâ€. 32. The claimant submitted further that the WIMA is completely different from the defendant’s conferences both in terms of its vision, mission, structure, organization and in its operations. That this was further attested to by the defendant’s own witness under cross-examination when he boldly stated that the establishment of the defendant’s (sic) association has not in any way or manner hampered or prevented the defendant from holding its conferences till date. In fact, DW was emphatic in his response that the defendant’s conference has been holding, yearly, since its commencement in 2004 up till 2016. He also confirmed that he is not aware of any woman who has left the defendant because of her involvement/membership of WIMA. WIMA has clearly not affected the defendant’s conferences and programmes. That this is a further confirmation of the fact that the two programs are completely different and that the claimant did not participate in the promotion of the WIMA as a rival association to the claimant’s women in management conferences. To further expose the unsubstantiated allegations of the defendant that claimant lured and misled the other women members of WIMA as baseless and a product of the imagination of the defendant, the claimant submitted that DW confirmed, unequivocally, under cross-examination that he has not had any discussions with any of the women who are members of WIMA neither did the defendant tender any complaint or report to it by any member of WIMA. Also that DW could not provide any reasonable basis for the defendant’s conclusion about the claimant’s association. In fact, that the witness confirmed that he knew next to nothing about the operation and management of the claimant’s association, citing Ohanaka v. Achugwo [1998] 9 NWLR (Pt. 564) 37 at 57 dealing with credibility of a witness. To the claimant, DW has not shown any in-depth knowledge of the facts to which he has testified to in this case and as such the Court should not to ascribe any probative value to his evidence in this case, citing Chiazor v. UBN [2013] 34 NLLR (Pt. 99) 244 at 271. That DW failed to provide any legal and reasonable basis for the several allegations made against the claimant in his evidence and as such the Court should hold that the defendant has not justified or established the basis for its purported dismissal of the claimant. 33. The claimant drew the attention of the Court to testimony of DW under cross-examination on the fact that the defendant acted on the report of the disciplinary committee in arriving at its decision to dismiss the claimant. That DW alleged that the said report indicted the claimant and recommended her for summary dismissal. That having failed to present the disciplinary committee report, there is nothing before this Court to show that the disciplinary committee found the claimant guilty of the allegations against her, citing Abubakar v. AG, Fed [2007] 3 NWLR (Pt. 1022) 601 at 639 - 640, which frowned on courts speculating as well as section 128(1) of the Evidence Act, which mandates that an official proceeding like the disciplinary committee report is the only form of evidence admissible to prove its content and by implication, that the defendant is unable to justify the dismissal of the claimant in the absence of the report to show the conclusion or finding of the disciplinary committee. That this is more so given that the purported rejection of the claimant’s resignation is based on the fact that the disciplinary committee had not concluded investigations on the alleged guilt of the claimant; and in the absence of the report which purportedly culminated in the claimant’s dismissal, the defendant is unable to prove or justify the claimant’s dismissal. That the further implication of the foregoing is that this Court is on strong legal footing to invoke the provisions of section 167(d) of the Evidence Act to presume that the defendant deliberately withheld a report which is central to its case because same is unfavorable to its case. This is more so that the defendant’s witnesses conceded during cross-examination that the defendant was both the complainant and the judge in finding the claimant guilty of charges including fraud and dismissing her, an act clearly in breach of section 36 of the Constitution. 34. The claimant continued that at the heart of her purported dismissal is the fact that she entered into an association called WIMA, a non-profit making association/organization. That the allegation and case of the defendant against her is that the she cannot associate freely with the other persons with whom she conjured the idea and registration of the WIMA. Clearly, that the defendant’s reason for dismissing her is in direct conflict with the supreme laws of the land. In fact, that she was dismissed for exercising her fundamental right as enshrined in the Constitution. That the law is trite that a Court of law cannot make orders contrary to statutes, how much more the supreme statute which creates the Court itself, citing Nobis-Elendu v. INEC [2015] 16 NWLR (Pt. 1485) 197 at 241. In any case, that any action or decision that conflicts with the Constitution would be illegal and a court of law would not perpetuate illegality by granting same. That this is the principle of public policy encapsulated in the Latin maxim ex dolomalo non orituractio, meaning no court should lend its aid to an illegal act, citing Adu v. Makanjuola 10 WACA 168, AP Limited v, Owodunni [1991] 8 NWLR (Pt. 210) 391, Abimbola George & ors v. Dominion Flour Mills Ltd [1963] 1 All NLR 71. That having firmly established that the defendant’s action in purporting to dismiss the claimant is a deliberate attempt to contravene the Constitution, this court is urged to set aside the purported dismissal of the claimant. That it is the duty of every court of law to uphold the provisions of the Constitution and resist actions as in the instant one, which assault the Constitution, citing Eronini v. Eronini [2013] 14 NWLR (Pt. 1373) 32 at 55 - 56. That the defendant’s action is a mere ploy to harass and victimize the claimant because of her exercise of a statutorily vested right to freedom of association; and courts of law would jealously guard their jurisdiction to protect statutorily vested rights like the right to freedom of association, citing Nobis-Elendu v. INEC [2015] 16 NWLR (Pt. 1485) 197 at 224. That the defendant’s action is bound to crash under the weight of section 40 of the Constitution which outrightly proscribes the kind of action perpetuated by the defendant. That the defendant cannot by its internal arrangement inhibit any staff or person’s right to freedom of association guaranteed under the Constitution, referring to INEC v. Musa [2003] 3 NWLR (Pt. 806) 72 at 213, where the Supreme Court invalidated a guideline of the appellant which disallowed civil servants from being members of political associations. 35. That the law is settled on the legal implication and remedy available to an employee in the case of a wrongful and unfair dismissal by an employer as in the instant case, which is that where an employee is wrongfully removed by summary dismissal which is not justified, he is entitled to damages in form of salary, allowances and any other benefits which he would have earned had his employment been validly terminated in line with his contract of employment, citing Olarewaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691 at 714. That there is no dispute as to the entitlements of the claimant upon termination of her contract of employment with the defendant. That as shown in paragraph 40 of the amended statement of facts and the claimant’s witness statement on oath, the claimant is entitled to the sum of N2,278,348.50 (Two Million, Two Hundred and Seven-Eight Thousand, Three Hundred and Forty-Eight Naira, Fifty Kobo) as gratuity. That the claimant also tendered Exhibit CW30 in proof of her salary and allowances. Importantly, the defendant has not denied claimant’s computation of her entitlements. In fact, that the defendant in paragraph 48 of its statement of defence admits that the claimant is entitled to the sum of N2,278,348.50 as gratuity. It also tendered the claimant’s schedule of benefits showing the computation of the claimant’s benefits, Exhibit D9. In the face of this admission by the defendant, that the claimant has sufficiently established its entitlement to the sum of N2,278,348.50 as gratuity, citing Com. Onah v. NLC [2013] 33 NLLR (Pt. 94) 104 at 170 and Shell Petroleum Dev. Co. Ltd v. Chief Victor Sunday Olarewaju (supra). In conclusion, the claimant urged the Cour to resolve issue (1) in her favour. 36. Issue (2) is whether the claimant validly resign her appointment on 19th May 2014. To the claimant, by virtue of her letter of resignation dated 19th May 2014 (Exhibit CW25), her contract of employment with the defendant was validly and effectively terminated on the said date, and as such her purported dismissal by the defendant vide its letter dated 22nd May 2014 is null and void, the employee/employer relationship under the contract of employment ceasing to exist upon receipt of Exhibit CW25 by the defendant. That the law is well settled on the absolute nature of an employee’s right to resign his appointment or employment; it is an absolute right that does not require either acceptance or rejection for it to be operative, referring to Benson v. Onitiri [1960] NSCC 52, Yesufu v. Gov., Edo State [2001] 13NWLR (Pt. 731) 517 at 532 - 533 and Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1 at 28. That in purporting to reject the claimant’s resignation, the defendant alleged in Exhibit CW26 that investigation was ongoing hence it cannot accept the claimant’s resignation. That Exhibit CW26 and the reason given for rejecting claimant’s resignation is a complete nullity. That there is no provision in the contract of employment of the claimant that gives the defendant the power to reject or accept the resignation of the claimant before same can be operative. That nowhere in the entire submission of the defendant under its issue (iii) on its purported discretion to accept or reject the claimant’s resignation, did it refer this Court to any portion of the employee’s handbook where it was stated that the defendant can accept or reject an employee’s resignation. In any event, that even if such a provision exists in the contract of employment, it is null and void as same violates the absolute right of an employee to resign his employment, relying on Aprofim Engineering Construction Nig. Ltd v. Jacques Bigouret & anor [2012] FWLR (Pt. 622) 1740 at 1764, which held that the appellant cannot say as it alleged that it refused to accept the resignation, because the 1st respondent had committed breaches and was to be investigated. Also referred to is Union Bank of Nigeria Plc v. Emmanuel Aderewaju Soares [2012] 11 NWLR (Pt. 3112) 550, where it was held that common sense dictates that, an employer cannot prevent an employee from resigning his employment for whatever reason. 37. To the claimant, the decisions of the court upholding an employee’s absolute power to resign stem from the provisions of the Constitution which guarantees every citizen of Nigeria the right to the dignity of the human person and freedom from forced labour under section 34(1)(c) of the Constitution and section 73 of the Labour Act Cap. L1 LFN 2004. That the implication of these provisions is that no person should be made to work or continue to work against his wish or desire. That if the purported rejection of claimant’s resignation is upheld, it means that an employer can restrain an employee from resigning even after that employee has said he would no longer ‘work’ for that employer, something clearly a case of forcing an unwilling employee on an employer, which is contrary to settled positions of the law. That in the eyes of the law, from the date an employer receives a notice of resignation from an employee, there becomes a complete and absolute severance of the employer/employee relationship, the relationship having been brought to an abrupt end. Accordingly, that the claimant’s appointment with the defendant was effectively terminated on 19th May 2014 upon receipt of Exhibit CW25 by the defendant. That after termination of the contractual relationship between the parties, there remained nothing between the parties as it relates to the existence of the employment, relying on Jombo v. P.E.F.M.B [2005] 14 NWLR (Pt. 945) 443 at 459. 38. The claimant continued that adjunct to the foregoing is the fact that the defendant acted in utter bad faith and in breach of the claimant’s right to fair hearing. That “there is evidence before the Court to establish the fact that the claimant was dismissed based on the report of the disciplinary committee set up by the defendantâ€. This is so because, the defendant failed to tender the report of the disciplinary committee. In the absence of the said report, there is nothing before this Court to show that the defendant was dismissed based on the non-existing report of the disciplinary committee. That the actions of the defendant which constitute the bases of this action are unjustifiable and riddled with bad faith. In its desperate attempt to victimize the claimant for tendering a letter of resignation, defendant via a letter dated 20th May 2014, but served on the claimant on the 21st of May, 2014 rejected claimant’s resignation on the basis of an on-going investigation against the claimant. On the same 21st of May, 2014, defendant served the claimant with a letter of dismissal. Curiously, the defendant’s letter of dismissal is dated 22nd May, 2014. That as shown in the evidence before this Court, on 21st May, 2014, defendant served the claimant with two letters, one rejecting her resignation and the other dismissing her. That by postdating the letter of dismissal to 22nd May, 2014, the defendant in a swoon of make belief, attempted to recreate the events to make it seem as though claimant was dismissed two days after she was served with the letter rejecting her resignation, but for the diligence of the claimant who immediately noticed the ploy and noted the discrepancies on the receipt copies of the letters. That what the defendant attempted to do is a clear show of bad faith, citing S.B.N Plc v. C.B.N Plc [2009] 6 NWLR (Pt. 1137) 237 at 292. The claimant then urged that the defendant’s Exhibits D7 and D8, having been issued and served on the claimant devoid of good faith and reason, should be totally discountenanced by the Court and consequently set aside. In conclusion, the claimant prayed the Court to resolve the issues for determination presented herein in her favour and consequently reverse the dismissal of the claimant and grant the reliefs she seeks. COURT’S DECISION 39. The issue calling for the determination of the Court is whether the dismissal of the claimant by the defendant vide Exhibit CW27/D8 dated 22nd May 2014 is valid given that the claimant had earlier on 19th May 2014 vide a letter of that date resigned her appointment. The parties are agreed that the claimant was an employee of the defendant having been appointed vide a letter dated 26th November 2007 (Exhibit CW2/D1); and this letter of appointment and the Employee Handbook (Exhibit CW28/D10) contain the terms and conditions of employment between the parties. Subject to being given the opportunity of fair hearing, it has never been in doubt the employer’s right to dismiss an employee for gross misconduct, even if not specifically written in the contract of service. See Simon Ansambe v. Bank of the North Ltd [2005] 8 NWLR (Pt. 928) 650 and Ziideeh v. RSCSC [2007] LPELR-3544(SC); [2007] 3 NWLR (Pt. 1022) 554; [2007] 1 – 2 SC 1. The only other requirement of law here is that once an employer gives a reason for terminating or dismissing an employee, the burden lies with him to justify the said reason. See Angel Shipping & Dyeing Ltd v. Ajah [2000] 13 NWLR (Pt. 685) 551 CA, Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip [2011] LPELR-1517(SC), George Abomeli v. Nigerian Railway Corporation [1995] 1 NWLR (Pt. 372) 451, Ogunsanmi v. C. F. Furniture (W.A.) Co. Ltd [1961] 1 All NLR 224 and Mr. Kunle Osisanya v. Afribank Nigeria Plc [2007] All FWLR (Pt. 360) 1480 SC at 1491; [2007] 1 – 2 SC 317. 40. The defendant had vide Exhibit D2 dated 17th March 2014 queried the claimant. In the query, the defendant stated thus: It was wretched to note that on Saturday the 15th day of March 2014 during the assumed “Investiture of the 1st National President of the Association (WIMA)†program, in the 3rd page, you claimed to be the founder of WIMA and was enthrone as the first National President, in the University of Lagos staff school hall within the hours of 13:05 hour. However, you join the Institute on the 1st of January 2008; therefore your claim to be the founder is not only fictitious, but calculated effort to defraud the Institute of her intellectual and property right. In the Staff handbook, Part 3, section 3, sub section 1 (a), states that “Every employee shall devote the whole of his/her time and attention to be faithful and diligent discharge of his/her duties and shall in all respect and obey observe the rules and regulations of the institute. No employee shall engage in any private business.†Your current status as President of Women in Management and Leadership Position (WIMA) and the role of the assumed body as stated in one of your fliers runs concurrently with the Nigerian Institute of Management (NIM), where you are still in full employment till date. This is an obvious conflict of interest and divided loyalty to an organization where you have been in full employment for the past seven years. It is implied from the hijack, you have used the platform of the Nigerian Institute of Management (NIM) in the course of your routine work to gratify your selfish ambition and yearning. Could you explain within twenty four (24) hours of receiving this memo, why disciplinary action should not be taken against you for such despicable act from a staff of your calibre? 41. The claimant answered the query vide Exhibit D3. In the answer to the query, the claimant explained that WIMA had been mooted to be the female wing of the defendant but the defendant itself turned this down arguing that “the NIM Charter is not gender-specificâ€. That the defendant itself then encouraged that WMA can be set up outside of the defendant. The claimant took up the challenge; as such, she and others then incorporated WIMA as a not-for-profit association. I must state here that the defendant misunderstood the explanation of the claimant in her answer to the query by asserting that in the answer, the claimant admitted the existence of WIMA domiciled in the defendant. It is this misunderstanding that then led the defendant to request the claimant to quickly deregister the association in order to restore the position of that Association to be domiciled with the defendant. See Exhibit D4 dated 2nd May 2014. The misunderstanding of the defendant, aside from Exhibit D4, also ran through the final written address of the defendant. 42. The defendant considered the claimant’s reply to the query and found that the implication of the claimant’s action resulted in the breach of the defendant’s rules and regulations as contained in the Staff Handbook at Part 3.2.1; as such, the defendant placed the claimant on indefinite suspension with immediate effect to give room for further investigation. See Exhibit D5 dated 1st April 2014. By 9th April 2014, vide an internal memo of that date, the claimant was invited to appear before a disciplinary committee scheduled for 10.00am on 22nd April 2014 at the Boardroom. The claimant appeared at the disciplinary hearing, but on 19th May 2014 she tendered her letter of resignation of same date (Exhibit C25) wherein she resigned her appointment with immediate effect on personal reasons. This letter of resignation was received on same 19th May 2014 by the Office of the Registrar of the defendant. By an internal memo dated 20th May 2014, the defendant rejected the claimant’s resignation “as investigation is on-going in regards to your involvement in Women in Management and Leadership Associationâ€. Then by a letter dated 22nd May 2014, the defendant dismissed the claimant with immediate effect. The reason given for the dismissal is that: “…it is established that you have operated contrarily to the rules and regulation of the Institute, which the Management considered your actions as inimical to the process of the Instituteâ€. It is the case of the defendant that this dismissal is valid; and the claimant was given fair hearing before she was dismissed. Of course, by law, it is for the defendant to justify the reason for dismissing the claimant. Already, I indicated a misunderstanding on the part of the defendant as to the explanation of the claimant in her answer to the query issued to her by the defendant. I must also point out here that the defendant did not frontload before this Court anything from the disciplinary committee meeting held on 22 April 2014, which according to Exhibit D8, the letter of dismissal, was one of three documents (the other two being the query and the answer to the query) upon which the decision to dismiss the claimant was taken. 43. I indicated the misunderstanding of the defendant of the answer of the claimant to the query the defendant issued to her. As a result of this misunderstanding, the defendant acted on the assumption that the claimant admitted that the association (WIMA) she and others formed was one domiciled in the defendant; and since it is domiciled in the defendant, by incorporating it under CAMA at the CAC, the claimant thereby breached her terms of engagement as per the Staff Handbook. Here the defendant got it wrong. The claimant did not admit that WIMA is domiciled in the defendant; if anything, her case is that the offer to have WIMA domiciled in the defendant was made to the defendant and the defendant turned the offer down, and then even encouraged the claimant to set it up outside of the defendant. The defendant cannot turn around and claim rights to intellectual property in terms of WIMA upon which it would then dismiss the claimant. The defendant went on to accuse the claimant of infidelity i.e. breach of clause 3.1.1(a) of the Employee Handbook. The clause bars an employee form engaging in any private business. I do not see how the defendant can even think of raising this issue since it encouraged the claimant to set up WIMA outside of the defendant. It must be noted that the defendant did not adduce any evidence before this Court to disprove the evidence of the claimant that it (defendant) encouraged her to set up WIMA outside of the defendant. The defendant’s erroneous equation of “Women in Management Conference†with WIMA cannot be such piece of evidence necessary to disprove the evidence of the claimant that the defendant encouraged her to set up WIMA outside of the defendant. Recognizing thus the constitutional right of freedom of association under section 40 of the 1999 Constitution, the claimant did not do anything wrong in setting up WIMA. I so find and hold. Under cross-examination, DW first testified that it was the defendant who accused the claimant of malice and fraud. Then the management of the defendant set up the disciplinary committee; and that the disciplinary committee found the claimant guilty of malice and fraud. Furthermore, that to the best of his knowledge, the disciplinary committee produced a report to management. He acknowledged that the report is not before the Court as it was not frontloaded. He went on to testify that he has not seen the report; and that he was not a member of the disciplinary committee; nor was he a member of management at the time the disciplinary committee sat. With this kind of testimony, how can any weight be given to DW’s testimony that the defendant was on good footing making a finding of malice and fraud to justify the dismissal of the claimant? DW was not a member of the disciplinary committee, he has not seen the report of the disciplinary committee; yet he is testifying that the disciplinary committee found the claimant guilty of malice and fraud. I do not think that DW is serious with this kind of testimony. I am accordingly satisfied that the defendant has not successfully justified the reason for dismissing the claimant. This being the case, the dismissal of the claimant by the defendant vide Exhibit D8 is unjustified. 44. The claimant argued that in all of this she was not given fair hearing by the defendant especially as the report of the disciplinary committee meeting was not tendered by the defendant. Fair hearing is about opportunity to be heard. The authorities are clear on this. For example, once a Court makes a finding that the employee was given ample opportunity to defend himself/herself on the allegations in issue, then such an employee cannot complain of not being given fair hearing. See A. R. Momoh v. CBN [2007] 14 NWLR (Pt. 1055) 508 CA at 527, Benedict Hirki Joseph v. First Inland Bank Nig Plc [2009] LPELR-8854(CA), Gukas v. Jos International Breweries Ltd [1991] 6 NWLR (Pt. 199) 614, Imonikhe v. Unity Bank Plc [2011] LPELR-1503(SC); [2011] 12 NWLR (Pt. 1262) 624 SC, Avre v. NIPOST [2014] LPELR-22629(CA), Kayode Agbolade v. Ecobank Nig. Plc unreported Suit No. NICN/LA/34/2012 the judgment of which was delivered on 30th October 2013, Mr. Adewale Aina v. Wema Bank Plc & anor unreported Suit No. NICN/LA/162/2012 the judgment of which was delivered on January 28, 2016 and Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors unreported Suit No. NICN/LA/40/2012, the judgment of which was delivered on 7th April 2016. The fair hearing requirement does not insist on oral testimonies so long as the employee had the opportunity to explain himself/herself by way of a query and reply. See New Nigeria Bank Ltd v. G. O. Oniovosa [1995] 9 NWLR (Pt. 419) 327 and Isong Udofia v. Industrial Training Governing Council [2001] 4 NWLR (Pt. 703) 281. The common feature running through all these cases is that the exact nature of the infraction(s), which the employee is expected to answer to, was disclosed to the employee. The concurring judgment of His Lordship Hon. Justice Rhodes-Vivour, JSC in Imonikhe v. Unity Bank Plc (supra) is quite emphatic. In the words of His Lordship: Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice. The appellant was given a fair hearing since he answered the queries before he was dismissed. In the instant case, the claimant was issued with a query, which she answered. This is opportunity good enough to satisfy the requirement of fair hearing under Imonikhe v. Unity Bank Plc (supra) scenario. I am accordingly satisfied that the defendant gave the claimant fair hearing. The claimant’s arguments as to fair hearing are accordingly discountenanced. 45. The claimant resigned her appointment with immediate effect on 19th May 2014 vide Exhibit C25 of same date, which was received by the defendant on same 19th May 2014. What is the legal effect of this resignation with immediate effect? 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 the employee paying any of his indebtedness to his employer. And 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. See Abayomi Adesunbo Adetoro v. Access Bank Plc unreported Suit No. NICN/LA/293/2013 the judgment of which was delivered on 23rd February 2016. In Mr. Beloved Patrick Anokwuru v. Omatek Ventures Plc & anor unreported Suit No. NIC/LA/140/2011, the judgment of which was delivered on 16th March 2016, and this Court held thus: Resignation with immediate effect by an employee carries with [it] three legal effects: the right to leave service automatically; the employee’s forfeiture of any benefit; and the employee paying any indebtedness to his employer. The justification for having to allow the resigning employee to leave immediately and automatically is the fact that [he/she] thereby forfeits [any] benefit he/she may be entitled to as well as the duty to pay off all indebtedness that [he/she] may [have] towards the employer; as such, the forfeiture of benefits inures as contractual consideration for the immediate and automatic separation of contractual relationship as per the employment in issue. So it cannot be that an employee who resigns with immediate effect is allowed to also benefit from such immediate separation by claiming benefits from the employer. 46. In the instant case, the claimant resigned with immediate effect on 19th May 2014. The defendant received the said letter of resignation on same 19th May 2014. This means that going be the above case law authorities, the claimant’s resignation was effective from 19th May 2014, the date the defendant received the letter of resignation. I so find and hold. This being the case, there was no employment relationship between the parties which the defendant can reject and so dismiss the claimant afterwards. By Jombo v. PEFMB [2005] 14 NWLR (Pt. 945) 443 SC, it is elementary that an employee cannot be dismissed from an employment that had ceased to exist. Therefore, a dismissal coming after the termination of appointment would be futile exercise. The claimant effectively resigned her appointment on 19th May 2014; there was no employment relationship on 22nd May 2014 for the defendant to dismiss with immediate effect. It is ironic, indeed funny I would say, that Exhibit D8 is dated 22nd May 2014 but was delivered to the claimant on 21st May 2014, and the defendant’s response is that it was merely postdated. There was no employment for a postdated dismissal either. I so hold. 47. The defendant argued that the Employee Handbook in clause 2.7.1, which permits an employee to resign from the services of the Institute after giving the appropriate notice, but that “The Institute has the right to refuse such notice or payment in lieu if the employee is a suspect in any case under investigation and/or on suspensionâ€. The claimant’s denial of the existence of this clause is of course an error to be treated as such. The defendant held tenaciously to this clause in justifying its refusal to accept the claimant’s resignation. In Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, a clause in the Employee Handbook, which provided, inter alia, that Management reserves the right to reject a notice of resignation or payment in lieu from an employee if it is seen as a strategy to cover up a fraud or misconduct to avoid disciplinary action, was not only struck down by this Court but it was held to approximate to forced labour contrary to section 34(1)(c) of the 1999 Constitution and section 73(1) of the Labour Act; as such the provision was held to be illegal and unconstitutional. In arriving at this decision, this Court placed reliance on the ILO Convention Concerning Forced or Compulsory Labour, 1930 (No. 29) otherwise called the Forced Labour Convention. The point was stressed that there is absolute power to resign and no discretion to refuse to accept; and it is not even necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted. See Yesufu v. Gov. Edo State [2001] 13 NWLR (Pt. 731) 517 SC, Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1 CA and Abayomi Adesunbo Adetoro v. Access Bank Plc unreported Suit No. NICN/LA/293/2013 the judgment of which was delivered on 23rd February 2016. 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. It is not open to the employer for whatsoever reason to refuse to accept the resignation of the employee for the employee has an absolute power to resign and the employer has no discretion to refuse to accept the resignation. I do not accordingly need to belabor the case of the claimant in the instant case. Clause 2.7.1 of the defendant’s Employee Handbook to the extent that it provides that the defendant reserves the right to reject an employee’s resignation is illegal and unconstitutional. I so hold. This being the case, and for this additional reason, the defendant’s rejection of the claimant’s resignation is null and void and of no effect whatsoever. I so find and hold. 48. There is, however, the further issue of the effect of the claimant’s resignation with immediate effect especially given the holding in WAEC v. Oshionebo [2006] 12 NWLR (Pt. 994) 258 CA 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 the employee paying any of his indebtedness to his employer, a position that Mr. Beloved Patrick Anokwuru v. Omatek Ventures Plc & anor (supra) reiterated and then justified thus: “The justification for having to allow the resigning employee to leave immediately and automatically is the fact that [he/she] thereby forfeits [any] benefit he/she may be entitled to as well as the duty to pay off all indebtedness that [he/she] may [have] towards the employer; as such, the forfeiture of benefits inures as contractual consideration for the immediate and automatic separation of contractual relationship as per the employment in issue. So it cannot be that an employee who resigns with immediate effect is allowed to also benefit from such immediate separation by claiming benefits from the employerâ€. This being the case, the claimant is not entitled to the claim of any benefit from the defendant. The claim as per relief (ix) has not been made out; as such it cannot be granted. 49. For all the reasons given, and for the avoidance of doubt, the claimant’s case succeeds in part and only in terms of the following declarations and orders: (1) It is declared that the claimant having resigned her appointment with the defendant on 19th May, 2014, the defendant was without any authority or power to dismiss the claimant from its services as per the defendant’s letter dated 22nd May, 2014, but which was delivered to the claimant on 21st May, 2014. (2) It is declared that the defendant’s letter dated 22nd May, 2014, but hand delivered to the claimant on 21st May, 2014 purporting to dismiss the claimant from the services of the defendant was a make belief, fake, deceitful, made and delivered in bad faith, suspicious, mean, petty, irregular, null and void and of no effect whatsoever. (3) It is declared that the claimant in participating in the registration of Woman in Management and Leadership Association under the Companies and Allied Matters Act, as well as its activities did not violate any known and acceptable rules and regulations of the defendant. (4) It is declared that the defendant does not have the right to dismiss or purport to dismiss the claimant for her failure to de-register Woman in Management and Leadership Association as demanded by the defendant. (5) The defendant’s letter of 22nd May, 2014 but hand delivered to the claimant on 21st May, 2014 purporting to dismiss the claimant from the employment of the defendant is hereby set aside. (6) The defendant either by itself, Chairman, Managers, Officers, Directors, Agents, Privies or through any person or persons howsoever is hereby restrained from treating or further treating the claimant as a dismissed staff of the defendant. 50. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD