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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HON. JUSTICE M. N. ESOWE DATE: 10th FEBRUARY 2015 SUIT No: NICN/ABJ/193/2012 BETWEEN EZINNE U. NJOKU …………………………………………… CLAIMANT AND ECOBANK NIGERIA PLC …………………………………… DEFENDANT REPRESENTATIONS 1) D. D .MOHAMMED Esq., for the Claimant. 2) C. I MBACHU Esq., for the Defendant. J U D G M E N T This Suit was instituted by the Claimant against the Defendant claiming for the following reliefs: 1) A DECLARATION that the Claimant, vide a letter dated January 11th 2010, the receipt of which was duly acknowledged by the Defendant effectively determined her employment contract and/or ceased to be in the employment of the Defendant effective the said 11th day of January, 2010. 2) A DECLARATION that the Defendant’s letter dated 18th January, 2010 and 17th August 2010 are null and void the Claimant having ceased to be in the employ of the Defendant, effective 11th January, 2010. 3) A DECLARATION that the Defendant by a combination of its overt actions as evidenced in the content of its letters dated 18/01/10,17/08/10 and its refusal to issue Claimant with a reference letter knowingly and maliciously frustrated Claimants employment contract with Claimants employer-First Bank of Nigeria Plc, thus rendering Claimant un-employed. 4) The sum of N500,000,000.00 being general damages for the loss of her employment(by implication source of income) ,damage to her reputation, ability to source employment, pains and suffering all occasioned by the Defendant’s wrongful act. 5) An Order directing the Defendant to issue the Claimant with a proper reference letter stating that the Claimant duly and lawfully resigned her appointment effective 11th January, 2010. Alternatively and only as an alternative to prayers 21 (a-e): In the unlikely event that this Honourable Court should hold that Claimant was in the employment of the Defendant up to 17/08/10, and order directing the Defendant to pay the Claimant the sum of N446,272.52.00 Monthly being Claimant’s entitlement from 11th January, 2010 to August 17th ,2010 as per letter of employment. In response, the Defendant entered appearance and filed its Statement of Defence and other accompanying documents dated October 30th 2012 wherein it denied that the Claimant is entitled to the reliefs claimed and urged this Court to dismiss the Claimants Claim as they are spurious, baseless and gold-digging. On February 5, 2012, the Claimant opened its case and tendered 23 documents which were all admitted in evidence. The documents tendered in evidence are listed hereunder: a. Letter of employment from Ecobank dated June 23, 2008 (marked as Exhibit EUN1). b. Letter of Resignation Dated January 11, 2010(marked as Exhibit EUN2). c. Letter Terminating Employment of Claimant by the Defendant dated August 17, 2010 (marked as Exhibit EUN3). d. Letter of employment from First Bank dated November 4, 2009 (marked as Exhibit EUN4). e. Retake of the indebtedness of 2. 1m from Ecobank Plc dated February 27, 2012 (marked as Exhibit EUN 5). f. Acceptance of Terms and Conditions (marked as Exhibit EUN 6). g. Copy of deposit Slip to the tune of N2, 153,548.99 (marked as Exhibit EUN 7). h. Contract of employment signed by Onabanjo to the Claimant (marked as Exhibit EUN 8) i. Letter of resignation of Appointment to human capital management first bank (marked as Exhibit EUN 9). j. Letter of Suspension dated Feb 11, 2011 (marked as Exhibit EUN 10). k. Dec 2010 slip from 1st Bank (marked as Exhibit EUN 11). 1. Printout of July 2010 by the Claimant (marked as Exhibit EUN12) m. August 2010 printout dated August 2010 from the Claimant (marked as Exhibit EUN 13). n. Printout dated September 2010 pay slip (marked as Exhibit EUN14). o. Computer printout dated November 2010(marked as Exhibit EUN 15). p. Printout of letter dated February 18, 2011 from Helen to Claimant (marked as Exhibit EUN 16). q. Computer printout of letter copied to the Claimant from Ezekiel to Alade Biodun (marked as Exhibit EUN17). r. Computer printout of letter copied to the Claimant from Ezekiel to Daodu Kehinde (marked as Exhibit EUN 18). s. Computer printout of letter copied to the Claimant from Laoye Adenike to Ezekiel & Kehinde (marked as Exhibit EUN 19). t. Transcript of interview between Ecobank and the Claimant in the case of Vivendi Co.ltd dated April 20, 2010(marked as Exhibit EUN 2O). u. Internal memo signed by the Claimant and 3 others (marked as Exhibit EUN 21) v. Call memo by account officer and recovery officer dated September 29, 2010 (marked as Exhibit EUN 22). w. Call memo by account officer and recovery officer dated September 30, 2010 (marked as Exhibit EUN 23). x. Ecobank Group Human Resources Policies (marked as Exhibit EUN 24). The Claimant was subsequently cross examined by the Defendants Counsel. The Defendant opened its Defence on December 4, 2013 and tendered six documents which were all admitted except the Claimants Statement of Account. The Documents admitted in evidence are as follow: a. Letter of Employment of the Claimant dated June 23, 2008. (marked as Exhibit D). b. Letter of Resignation of the Claimant dated January 11, 2010 (marked as Exhibit EUN 2). c. Defendants’ letter to First Bank Plc date July 26, 2010 (marked as Exhibit Dl). d. Defendants’ letter to First Bank Plc dated October 5, 2010 (marked as Exhibit D3). e. Ecobank Group Human Resources Policies (marked as Exhibit EUN 24). And was subsequently cross examined by the Claimants Counsel. This matter was then adjourned for adoption of final written addresses. DEFENDANTS FINAL WRITTEN ADDRESS: ISSUES FOR DETERMINATION The following Issues have been formulated by the Defendant for determination by this Court- 1. Whether having regard to the terms of the Claimant’s contract of employment with the Defendant, the Claimant’s letter of resignation dated January 11, 2010 validly terminated her employment and whether the Defendant is entitled to accept or reject the Claimant’s resignation 2. Whether in the circumstance of the evidence led, the Defendant can be held liable for knowingly and maliciously frustrating Claimant’s employment with First Bank 3. Whether the Claimant is entitled to damages for loss of employment. 4. Whether the Claimant is entitled to the grant of the relief claimed in alternative for the monthly sum of N446, 272.52 from 11th January 2010 to 17th August, 2010 LEGAL ARGUMENT ISSUES 1 “Whether having regard to the terms of the Claimant’s contract of employment with the Defendant, the Claimant’s letter of resignation dated January 11, 2010 validly terminated her employment and whether the Defendant is entitled to accept or reject the Claimant’s resignation” Counsel submitted that the relationship between the Claimant and the Defendant is one of employment governed by the principles of the law of contract. That the law is settled that where Parties freely enter into a contract, then, the contract becomes binding on the Parties and the attitude of Court is that where the contract is clear and unequivocal, then the Court must in construing the relationship of Parties; confine itself to the terms of the contract between the parties. He referred to NIGERIAN GAS COMPANY LTD V UNUAVWODO 2003 FWLR (PT 169)1196 AT 1205 PARA. B-C. To counsel, where terms of a contract are contained in more than one document, the position of law is that in order for Court to determine the true intentions of the Parties, each and every of such document must be read together as forming an integral part of the transaction, referring to LADIPO V CHEVRON NIGERIA LIMITED (2005) ALL FWLR (PT 260)133 AT 142 CA. Counsel also referred to the case of ORIENT BANK (NIG) PLC VS. BILANTE INTERNATIONAL LIMITED (1997) 8 NWLR Part 515 Page 37 at 78 para E - H, the Court of Appeal reaffirmed the above trite principle of law. In the instant case, counsel submitted that the terms of the contract of employment between the Claimant and the Defendant at all the material time of the Contract of employment are as contained in the letter of offer of employment (Exhibit EUN 1) as well as the Ecobank Group Human Resources Policies (EHRP) 190 1(Exhibit EUN24). He submitted that it is to these two documents that this Court must look in order to determine the question as to whether the Claimant can be said to have validly resigned her employment with the Defendant and whether the Claimant was entitled to exercise the discretion to accept or reject the resignation. The Claimant was employed vide a letter of employment which was tendered and admitted in evidence as Exhibit EUN 1. Paragraph 2 (ix) of the Exhibit EUN 1 binds the Claimant to all existing and future rules, regulations, policies and procedures of the Defendant in force from time to time and those to which the Defendant is statutorily bound to comply with. Exhibit EUN 24 which is Ecobank Group Human Resources Policies (EHRP) 1901 at page 88 expressly stipulates the mode of resignation and the right of the Defendant to accept or decline resignation in writing as may be appropriate. Specifically, he referred to paragraph 3 at page 88 thereof that ‘Human Resources Head shall accept or decline resignation of appointment in writing after discussion with the Country Head of Group Chief Executive as may be appropriate’. The evidence of the Claimant was that on the 11th day of January 2010, she tendered a letter of resignation to the Defendant. Whilst he concedes that it was within her right to tender her resignation, he submitted that for the resignation to be valid within her contract, it must be as provided in the contract of employment. He invited the Court to a close scrutiny of the terms of the Contract. It is clear that the Claimant, where she intends to resign her employment has two options. The first option is to give Notice of her resignation at least two weeks before the effective date of the resignation. The second option is exercisable only where the effective date is the date of the Notice in which case, the Claimant must give two weeks’ salary in lieu of notice. In the instant case, the Claimant by Exhibit EUN 4 dated January 11, 2010 resigned her employment forthwith without giving the two weeks’ notice she was contractually obliged to give and without availing the Defendant with two weeks’ salary in lieu of notice. He submitted that to the extent that the Claimant’s purported resignation was in fundamental breach of her contract, and invalid and urged Court to so hold. He submitted that the law is settled that where Parties have by contract defined the means by which an act is to be done, Parties are obliged to adopt the defined means provided and to do otherwise in to be in repudiatory breach of the contract. Assuming, without conceding that the letter of resignation of the Claimant was validly made, the next question the Court is invited to determine is whether having regard to the terms of the contract, it was also within the rights of the Defendant in the event of resignation to exercise discretion as to whether to accept the resignation or decline same. Again, he referred this Court to same Exhibit EUN 24. In the instant case, the Defendant, vide a letter dated 18th January, 2010 declined the resignation of the Claimant and it did so in writing. The said letter dated 18th January, 2010 admitted before this Court as Exhibit D1. To counsel, it is the contract of the Parties that the Defendant, as an employer, reserves the right to either accept or reject the letter of resignation of the Claimant, as employee. He submitted that in such circumstance, the letter of resignation declined by the Defendant is contractually ineffectual. Parties are bound by their contract and the Claimant, he submitted, is bound by the exercise of discretion to decline and he urged Court to so hold. Counsel further submitted that the intention of the Parties is to preserve the right of the Defendant to either accept or decline resignation provided such acceptance or declination was made in writing. Where as in this case, the Defendant has clearly by Exhibit D1 declined the resignation of the Claimant, submitted that the purported resignation is contractually inchoate, it is ineffectual and therefore invalid. He urged this Court to so hold. To counsel, there are cogent and uncontroverted evidence placed before this Court as to the justifiable reason why the Defendant would be right in declining the resignation, simply, there were serious issues of negligence and to a large extent, fraud that was being investigated. Under cross-examination, the Claimant testified to the fact that there were cases of fraud which she reported to the Economic and Financial Crimes Commission and the Nigerian Police on or about five days before her letter of resignation. She also admitted having received a letter of engagement by another Bank more than a month before she made the report to the Investigating Agencies and before her letter or resignation. Counsel submitted that it would not be difficult for this Court to find as fact that her conduct portrays mischief and was in bad faith. More importantly, the evidence of the Defence was uncontroverted that there was an ongoing investigation on a credit facility disbursed in Claimants branch which had become a Past Due Obligation (PDO) for which Claimants resignation would technically interfere with the investigation. This much were stated and communicated to the Claimant in writing and in accordance with Exhibit EUN24. The evidence before Court also showed that in due course of the investigation, the Defendant found the Claimant to have failed in meeting the minimum standards of performance expected of a staff in the Claimant’s cadre in the Defendant Bank and also being grossly negligent over a transaction which caused monumental loss to the Defendant. Consequently, the Defendant, on the 17th of August 2010 wrote to the Claimant exercising its rights in line with Paragraph 2(iii) of Claimants offer of employment/Contract (Exhibit EUN1) which allows for the Defendant to terminate Claimants employment by payment of two weeks’ salary in lieu of notice since Claimants appointment had not been confirmed. The said Letter of termination dated 17th August, 2010 was tendered by the Claimant and admitted into evidence as (Exhibit EUN3). Finally, on this first issue, he submitted that the Claimant’s letter of resignation is invalid for failing to comply with the contract between Parties and that in any event, the Defendant, within its contractual rights, declined the letter of resignation. Accordingly, he urged the Court to resolve the First Issue in favour of the Defendant. ISSUES 2 “Whether in the circumstance of the evidence led, the Defendant can be held liable for knowingly and maliciously frustrating Claimant’s employment with First Bank and if found not so whether the Claimant is entitled to damages from the Defendant for loss of source of income” The Claimant claims that the Defendant’s overt action rendered the Claimant unemployed by knowingly and maliciously frustrating Claimant’s employment contract with Claimant’s employer —First Bank of Nigeria Plc. Counsel submitted that the Defendant did not frustrate the Claimant’s employment contract with First Bank of Nigeria Plc. Claimant stated in her purported letter of Resignation (Exhibit EUN 2) that the basis of her resignation was to pursue further studies for personal development, while in actual sense, was in order to take up another appointment with First Bank. He further submitted that Claimant’s purported letter of resignation was anything but sincere as in addition to misleading the Defendant of her motive for resignation, she quoted a UK address as her forwarding address and later during cross examination, feigned knowledge as to why the Defendant chose to address the letter rejecting her resignation(Exhibit D1) to the UK address. On that basis, Claimant claimed not to have received the letter (Exhibit EUN 3) before resuming at First Bank Plc. Worthy of note is the fact that Claimant’s letter of employment with First Bank Plc (Exhibit EUN 4) is dated November 9th 2009 and Claimant tendered her purported letter of resignation(Exhibit EUN 2) on January 11th 2010 which goes to show that Claimant was in the employ of First Bank long before tendering her purported letter of resignation with the Defendant and while still in the employ of the Defendant. Claimant confirmed during cross examination that she did not inform the Defendant of her employment. Thus, it is submitted that Claimant did not disengage from the Defendant before resuming with First Bank as provided by paragraph 4 at page 88 of Exhibit EUN 24 which reads as follows-’The Human Resource Head and the appropriate supervisor SHALL conduct and document exit interviews before the date of separation’. By implication, Claimant absconded her job with the Defendant. Though the Claimant further alleged to have received Defendants letter rejecting her resignation after she had resumed at First Bank, she had the time and opportunity to bring this development to the notice of First Bank Nigeria Plc but she chose to conceal this fact until the Defendants letter written in response to First Bank’s request. He submitted that the termination of Claimants employment with First bank Plc is as a result of her own making through concealment of facts in a game of smoke and mirrors. Also of importance is the fact that Claimant tendered her resignation letter 5 days after she had lodged a complaint: reporting the alleged fraud, an act that fails to build confidence in Claimant’s lack of complicity. That the Claimant has not presented a shred of evidence before this Court to show that she did indeed secured admission to further her studies leaves a lot to imagination as to her true motive for alleging same. Counsel submitted that there was no way the Defendant would have known of Claimants’ employment with First Bank Nigeria Plc. The Defendant only responded to inquiry by writing a letter dated July 26th 2010 to First Bank Nigeria Plc(Exhibit D3) wherein it informed First Bank Plc that the Claimant had unresolved issues with the Defendant and should be advised to contact the Defendant to resolve all her pending issues with the Defendant. He submitted that the communication between the Defendant and First Bank Plc is a ‘qualified privilege’ ,the existence of which destroys the inference of malice which the law makes and allows for the occasion to be privileged except there is evidence of actual or express malice. He referred to the Court of Appeal decision of M.T.S V.AKINWUMI (2009)16 NWLR pg 633 651-652 Para. H-A; 652, para. D-F, for the definition of ‘qualified privilege’. Set against the Court of Appeals definition of qualified privilege, counsel submitted that the communication between the Defendant and First Bank Plc falls squarely under the definition of Qualified Privilege, the existence of which destroys the inference of malice which the law makes and allows for the occasion to be privileged except there is evidence of actual express malice. He submitted that there is no evidence of actual express malice before the Court failing In M.T.S V.AKINWUMI (Supra) @ pg 652 Para. B-C, the Court of Appeal held- On Duty of former employer where enquiry is made by intending employer about employee- “It is the moral and social duty of a former employer on enquiry being made by an intending employer as to character, fitness or capacity of such employee or as to the cause of his dismissal to state all that he knows either for or against him, and if he does so honestly and without malice towards him, his answer will be privileged, which is what the Claimant did in this case as posited in Exhibit EUN 3 by operation qualifying Defendants reply as privileged. Counsel submitted that the Defendant, in exercise of its legal right terminated the Claimant’s employment consequent upon the report of the Disciplinary Committee of the Defendant Bank which inquired into the loan facility. The Disciplinary Committee had found the Claimant grossly negligent over the said loan transaction and recommended that her employment be terminated. Counsel referred to AZENABOR VS BAYERO UNIVERSITY KANO 200917 NWLR (PT 1169)96 @ Pg. 108 para. D-F, where the Court held that: A master can terminate the contract of employment with his servant at any time for any reason or for no reason at all provided the terms of the contract between them are complied with.” In ALl V.NIGERIAN AIRPORT AUTHORITY 2005 ALL FWLR (PT 272) CA 265 AT 290 PARAS B-F, the Court of Appeal held inter alia that: “…. A servant whose conduct has been such that it would be injurious to the masters business to retain him may be justifiably dismissed….” To counsel, the Defendants Final Letter of reference as requested by First Bank Nigeria Plc dated October 5, 2010 (Exhibit D4) contained no evidence of malice but simply and honestly stated the circumstances surrounding the exit of the Claimant from the Defendant Bank. He cited the case of M.T.S V.AKINWUMI (Supra) @ pg 652. It is on the strength of the foregoing submissions that he urged the court to hold that the Defendant did not by overt or covert action render the Claimant unemployed or knowingly and maliciously frustrate the Claimants employment Contract with First Bank of Nigeria Plc. He urged the Court to hold that no evidence has been presented before the Court to substantiate the Claimant’s claim in this regard as Exhibit D4 is a ‘qualified privilege’ and cannot be construed as evidence of malice under any guise. Counsel therefore urged on this Court to resolve the second issue in favour of the Defendant. ISSUE 3 “Whether the Claimant is entitled to damages for loss of employment.” Counsel submitted that the Claimant is not entitled to damages for loss of employment (by implication source of income) as alleged in her Claim. That it is settled Law that a Claim for damages could only arise if there is a breach of any legal duty to the Claimant by the Defendant. That the onus to establish this duty is on the Claimant. In the Instant case the Claimant has failed woefully to prove that the Defendant was in breach of any of his legal obligations arising from the contract of services to him or any other place. He referred to ATIVIE V KABEL METAL NIG LIMITED (2008), 5-6 S.C (Pt II) Pg 63 Para 30-35. Defendant’s counsel had argued under the two preceding issues formulated before this Court that the Defendant’s letter dated 18th January 2010 (Exhibit D1) declining the Claimant’s letter of resignation dated 11th January, 2010 (Exhibit EUN2) was in accordance with the Contract between Parties. He had also argued that the Defendant’s letter terminating the Claimant’s employment dated 17th August, 2010 (Exhibit EUN 3) was in conformity with the provisions for exercise of the right to terminate employment as contained in the contract of employment between the Parties. He submitted that these are unassailable facts that show that the Defendant has not been in breach of the contract for which the Court can be invited to visit the sanction of damages on the Defendant. This relief sought is baseless, unfounded in law and counsel urged this Court to dismiss the Relief. To counsel, if the Court resolves Issue 1 and 2 in favour of the Defendant as urged, there will not be any difficult for the Court to find no basis for Claimant’s entitlement to damages against the Defendant, the Defendant having not infringed on the right of Claimant as contained in the Claimants employment contract with the Defendant Bank. He submitted that the Defendant had a legal and moral duty to communicate in the manner it did in (Exhibit D3) as ‘qualified privilege’. The totality of evidence led goes to show that no damage was done to Claimants reputation or ability to Source employment as a result of Defendants act. Counsel urged the Court to so hold. On the strength of the foregoing, counsel submitted that the Claimant is not entitled to damages before this Court, the Defendant having computed Claimants two weeks salary in lieu of notice in accordance with her contract of employment together with other entitlements viz- a- viz Claimants indebtedness to the defendant. ISSUE 4 “Whether the Claimant is entitled to the grant of the reliefs claimed in alternative for the monthly sum of N446, 272.52 from 11th January 2010 to 17th August, 2010” Counsel submitted that there is nothing to prop this claim as the Claimant was not coming to work within the said period and did not add value to the Defendant; or grow the Defendant in any way. It is worthy to note that salary paid to an employee is based on the consideration of services rendered the employer and where the employee fails to so do, she cannot be allowed to reap were she did not sow or labour. The Claimant was within the material period of January 11th 2010 to August 2010 in the employ of First Bank Plc and receiving a salary. The Claimant admitted during Cross Examination to having received a letter of engagement from First Bank more than a month before tendering her letter of resignation and making a report to the Investigating Agencies on subject matter of investigation. Counsel submitted that it would not be difficult for this Court to find as fact that her conduct portrays mischief and was in bad faith. In view of the maxim “Equity leans against double portions” the Claimant claim in this regard is clearly predicated on the desire to unjustly profit where she has not labored and same should be condemned by this Court. To counsel, assuming without conceding that the Claimant is entitled to claim as per her alternative prayer, that such claim is a special damage, to which particulars and evidence in support is required. It is settled law that special damages must not only be specially pleaded but also strictly proven by credible evidence. It is incumbent on the party claiming special damages to state in his pleadings specific particulars forming the basis of his claim so as to enable the other party know what the case against him at the trial is; and, at hearing, strictly prove his case by adducing evidence in line with the pleadings. He referred to the case of USMAN VS. ABUBAKAR (2001)12 NWLR Part728 pg 685 @ pg 704, Para. B-D & pg 722, Para. H. To him, in the instant case the Claimant has failed to furnish in her Pleadings particulars of special damages as per Claimants alternative claim let alone lead evidence to establish same. To this end, the alternative claim must crumble as this Court cannot grant Claimants alternative prayer or compensate her by way of general damages. See the case of O.M.T. Co Ltd Vs. Imafidon (2012)4NWLR Part 1290 Pg 332 @ pg 346 Para. G. Counsel prayed the court to resolve issue 4 in negative and so hold that the Claimant is not entitled to the grant of the reliefs claimed in the alternative for the monthly sum of N 446, 272.52 from 11th January 2010 to 17th August, 2010. Counsel submitted that the Claimant is not entitled to any claim from the Defendant in her claims. He urged the Court to so hold. CLAIMANT’S FINAL WRITTEN ADDRESS INTRODUCTION The Claimant brought this action by a Writ of Summons with Statement of Claim dated and filed on the 6th day of July 2012. By the endorsement on the Statement of Claim, the Claimant claims against the defendant as reproduced above. The defendant filed a Statement of Defence to which the Claimant filed a reply dated 31 January 2013. At the trial, the Claimant called 2 witnesses viz- the Claimant herself as PW1 and PW2 Chioma Okoro (the manager of the Defendant’s Nicon Luxury Hotel Branch) who was a witness subpoenaed to testify on behalf of the Claimant. FACTS The facts of this case as presented by the Claimant are as follows: The Claimant is a veteran banker with 12 years experience in banking and who had worked in 5 different banks before working for the Defendant. On the 23th of June 2008, the defendant employed the Claimant as a Deputy Manager and made her the Manager of their Nicon Luxury Hotel Branch in Abuja. The Claimant’s terms of employment are contained in her letter of employment dated the 23th June 2008 (Exhibit EUN 1). By the said letter, the Claimant was to remain on probation for a period of 6 months and within the said period of probation; either party was entitled to determine the contract by giving 2 weeks’ notice or payment in lieu. The Claimant worked with the defendant as Manager of the Nicon Luxury Hotel Branch from June 2008 until January 2010 without any letter of confirmation by the Defendant. By letter dated the 11th of January 2010, (Exhibit EUN 2) the Claimant resigned her employment with the Defendant and was employed in a managerial position in First Bank of Nigeria Plc with enhanced salary and benefits. By letter dated the 18th of January 2010, (Exhibit EUN 3), the Defendant informed the Claimant that they had rejected her resignation. Nonetheless the Claimant took up her new job at First Bank of Nigeria Plc. The Claimant’s new employer First Bank of Nigeria paid the Defendant the outstanding loan which the Claimant had with the Defendant while she was in their employ. When First Bank of Nigeria demanded a reference letter from the Defendant, the Defendant informed First Bank Nigeria, that the Claimant was still their staff. In August 2010, after the Claimant had worked with First Bank Nigeria for 8 months, the Defendant, by letter dated 17th August 2010 purported to terminate her employment. Following the claim by the Defendant that the Claimant remained in their employ at all material times when she was working with First Bank Nigeria Plc, First Bank reviewed the Claimant’s employment and suspended her for 2 weeks. Realizing that her suspension was a prelude to her being sacked by First Bank Nigeria, the Claimant resigned her job with First Bank Nigeria to avoid being sacked. The Claimant feeling seriously aggrieved by the malicious insistence by the Defendant that she remained their staff after she had resigned in writing and the non refusal to issue a referral which eventually led to the Claimant’s loss of her lucrative job has now approached this Court seeking the reliefs and orders and declarations endorsed on the Statement of Claim. ISSUES FOR DETERMINATION To the Claimant, the following issues arise for determination or resolution in this suit viz ISSUE ONE “Did the Claimant validly resign her employment with the Defendant bank by her letter dated 11th January 2010 (Exhibit EUN2.)” ARGUMENTS Counsel invited the court to answer this issue in the affirmative. That it is an incontrovertible fact which was mutually accepted by the parties that on the iii” of January 2010, the Claimant resigned her job with the Defendant vide her letter dated 11th of January 2010 Exhibit EUN2. The question for consideration is whether the Defendant can in law refuse to accept the resignation of the Claimant as they purported to do. To counsel, the relationship between the parties is regulated by contract. It is an employer/employee relationship. But it is important to point out that it is not a master/slave relationship. The Plaintiff’s letter of employment dated 23rd June 2008 is the contract of employment between the parties and contains the terms of employment. The said letter of employment clearly states as follows: “The following terms and conditions are applicable to you as an employee of Ecobank Nigeria Plc:-iii) You shall be on probation and on the job evaluation for a period of six months. During that period, the appointment may be terminated by either party, by two weeks written notice or payment of two weeks’ salary in lieu of notice” It was in evidence, that by the time the Claimant resigned her appointment with the Defendant, the Claimant had been in the employment of the Defendant for almost 2 full years without confirmation of her employment by the Defendant. He submitted that the non-confirmation of the employment of the Claimant for almost 2 years was a breach of the Claimant’s contract of employment. Also, that indeed the Claimant was not obliged to give the defendant any notice of her resignation being that the Defendant was already in breach of the terms of contract. The question must be asked as to what the status of the Claimant was at the time of her resignation; was the Claimant a confirmed staff or an unconfirmed staff? In their letter dated 17th August 2010 (Exhibit AUN 3), the Defendant stated clearly that the Claimant was still an unconfirmed staff of the Ecobank Plc. Counsel submitted that the Claimant cannot be described as an unconfirmed staff of the Defendant. This is because the contract of employment neither made any provision nor did it envisage that a staff could be on probation for a period of more than 1 year. The proper term to describe the Claimant’s status at the time of resignation would be a floating staff. To counsel, by not confirming the Claimant’s employment, the Claimant was at liberty to walk away from the Defendant’s employment without any form of notice. In any event, where an employee walks out of an employment without notice or without the prescribed notice or where an employer terminates the employment of an employee without adequate notice or no notice at all, the remedy of either party can only be an action for breach of contract of employment. Either party may be entitled to an award of damages. Even a Court cannot compel an employee to keep working for an employer. The question should be asked can an employee whose employment has been terminated by his employer refuse the termination of his employment and keep coming to work and demanding for work to do and collecting salaries and allowances. The answer is obviously in the negative. In the interpretation of any contract, what is enjoyed by the one party must also be enjoyed by the other. In any event, the defendant’s letter refusing the Claimant’s resignation Exhibit AUN 3, did not state that the refusal was as a result of any shortfall in the notice of resignation. The said letter specifically stated “We wish to advise that your resignation is not accepted by the bank due to the fact that you need to resolve the N200million PDO you created” Counsel contended therefore that any argument relating to length of notice or sufficiency of notice thereof, is idle and not in issue. The defendant did not file an action against the claimant for breach of contract neither did they file a counter-claim for breach of contract. To him, the issue of notice or length of notice is not in issue in this case and every argument relating to it ought to be discountenanced. After the argument of this Issue, the Claimant argued on other sundry matters that the Court may refer to in due Course as the necessity comes up. These are: a) WHEN DOES A LETTER OF RESIGNATION TAKE PLACE IN A CONTRACT OF EMPLOYMENT b) CAN THE DEFENDANT REFUSE THE CLAIMANT’S LETTER OF RESIGNATION? c) ADMISSION_OF UNSIGNED_DOCUMENT d) “DID THE DEFENDANT’S ACTION CAUSE THE CLAIMANT TO LOSE HER JOB WITH FIRST BANK NIGERIA PLC?”ETC She ended by submitting that the Claimant was in a good position at First Bank Plc and would have risen and been promoted was it not for the acts of the Defendant. The Claimant has exhibited and put in evidence her salary package in First Bank Plc and counsel urged the court to grant the Claimant damages as per her claim. In the alternative, she urged the court to grant the damages in the alternative since the Defendant claims that the Claimant remained in their employment until October 2010 as per the Statement of Claim. Counsel urged the court to grant the Claimant damages as per the Statement of Claim or as claimed in the alternative. The Court has considered the case before it, the argument of both parties and the authourities referred to by them. I shall adopt the issues presented by both counsel to the parties. They are: a) Whether having regard to the terms of the Claimant’s contract of employment with the Defendant, the Claimant’s letter of resignation dated January 11, 2010 validly terminated her employment and whether the Defendant is entitled to accept or reject the Claimant’s resignation b) Whether in the circumstance of the evidence led, the Defendant can be held liable for knowingly and maliciously frustrating Claimant’s employment with First Bank. c) Whether the Claimant is entitled to damages for loss of employment. d) Whether the Claimant is entitled to the grant of the relief claimed in alternative for the monthly sum of N446, 272.52 from 11th January 2010 to 17th August, 2010 e) “Did the Claimant validly resign her employment with the Defendant bank by her letter dated 11th January 2010 (Exhibit EUN2.)” On issue 1 a) Whether having regard to the terms of the Claimant’s contract of employment with the Defendant, the Claimant’s letter of resignation dated January 11, 2010 validly terminated her employment and whether the Defendant is entitled to accept or reject the Claimant’s resignation. To answer this, the Court has to examine the Letter of the Offer of Employment (Exhibit EUN 1) and also Exhibit EUN 24 which is Ecobank Group Resources Policies (EHRP) which regulates the conduct of the parties in this case. In Efuribe vs. Ugbam (2010) 14 NWLR (PT 1213), 257, the CA held thus: “Generally, the letter of employment must be resorted to in considering the rights and obligation of the parties. It is the letter of employment that provides the terms and conditions of appointment which are averred in the statement of claim.” In this case, the terms of Employment include thus: “The appointment may thereafter be terminated by either party by one month written notice or payment of one month’s salary in lieu of notice” It is in evidence that the Claimant, on the 11th January 2010, signed and served on the Defendant a letter titled “Resignation of Appointment” (Exh EUN2) wherein she stated inter alia: “I hereby resign my appointment with Ecobank Nigeria Plc, effective immediately…..” This falls short of and is in breach of the terms of employment between the parties and to that extent is invalid and cannot stand. Upon receipt of this resignation, the Defendant replied via (EXH.EUN 4) dated 18thJanuary 2010stating inter alia “We wish to advise you that your resignation is not accepted by the Bank due to the fact that you need to resolve the N200million DPO that you created.” It is also in evidence that part of the contract of employment of the Claimant is a policy that outlines the mode of employee’s resignation including the acceptance or rejection of same. More so, at Page 88, paragraph 2 of Exhibit EUN 24 states as follows: “Human Resouces Head shall accept or decline resignation of appointment in writing after discussion with the company Head or Chief Executive as may be appropriate.” Since the parties freely entered into this contract of employment (Exhibit EUN 1), the terms of the contract is binding on each party. Besides it is the law that an employer may reject a letter of resignation on the ground that the employee has questions to answer, and permitting him to go may hinder ongoing investigations. See Graham-Douglas vs. Att-Gen of Rivers State. (1973) NMLR 77. It is in the light of the above that I find the Resignation of the Claimant invalid and the Rejection of same by the Defendant appropriate in line with the terms of their contract of employment. ISSUE 2 “Whether in the circumstance of the evidence led, the Defendant can be held liable for knowingly and maliciously frustrating Claimant’s employment with First Bank.” The answer to this Issue is a matter of proof. The story of the Claimant is that when First Bank of Nigeria demanded a reference letter from the Defendant on her, the Defendant informed First Bank Nigeria that the Claimant was still their staff. In August 2010, after the Claimant had worked with First Bank Nigeria for 8 months, the Defendant, by letter dated 17th August 2010 purported to terminate her employment. That following the claim by the Defendant that the Claimant remained in their employ at all material times when she was working with First Bank Nigeria Plc, First Bank reviewed the Claimant’s employment and suspended her for 2 weeks. Realizing that her suspension was a prelude to her being sacked by First Bank Nigeria, the Claimant resigned her job with First Bank Nigeria to avoid being sacked. That the malicious insistence by the Defendant that she remained their staff after she had resigned in writing and the non refusal to issue a referral eventually led to the Claimant’s loss of her lucrative job with the First Bank. The Court had earlier held that from the evidence before it, both parties were bound by the contract of employment between them and that the resignation of the Claimant was not valid within the contents of the Contract. Also that the refusal of the resignation was proper within the terms of the same contract. In the case of HUNT vs. BRITISH RAILWAYS BOARD (1974) IRLR 379, it was held that where an employee claims the employer has broken the contract, he must resign as a result of that breach, If he continues to report to work, he may be deemed to have waived the breach, and can hardly bring a case based on that breach, for the law does not allow him to eat his cake and have it. Besides, the Claimant’s letter of appointment at First Bank is dated 9th November 2009, while her letter of resignation is dated 11th January 2010. The work relationship between the Claimant and Defendant lasted from 2008 to 2010. If there was no confirmation of Appointment, the Claimant ought to have resigned or, as in this case be deemed to have waived it. The other point is that of the refusal of the Defendant to give a referral to the First Bank leading the “loss of a lucrative job with the 1st Bank.” Exhibit D4 in the Court’s file is titled “Employee Reference- Mrs. Ezinne Njoku. There is no proof that the content of Exh. D4 was malicious and aimed at denying the Claimant a lucrative job. The Court agrees with Defence counsel that Exhibit D4 which is a reply to a letter from First Bank wherein it informed the 1st Bank of a pending issue that the Claimant ought to clear with them is a qualified privilege. In the case of M. T. S V. AKINWUMI (2009) 16 NWLR 633@ pg 652 Para. B-C the Court of Appeal held- On Duty of former employer where enquiry is made by intending employer about employee- “It is the moral and social duty of a former employer on enquiry being made by an intending employer as to character, fitness or capacity of such employee or as to the cause of his dismissal to state all that he knows either for or against him, and if he does so honestly and without malice towards him, his answer will be privileged,” which is what the Claimant did in this case . See Exhibit EUN 3 by operation qualifying Defendants reply as privileged. It also held in para D-F inter alia that “the existence of qualified privileged destroys the inference of malice (which the law makes and allows) for the occasion to be privileged except there is evidence of actual express malice.” I resolve the 2nd ISSUE in favour in the negative. ISSUE 3 “Whether the Claimant is entitled to damages for loss of employment.” The employment of the Claimant does not enjoy statutory flavour and rightfully the only relief she is entitled to is damages for loss of employment when such is proved. In this case it is in evidence that she had resigned her appointment with the Defendant. That even before that, she had commenced work with the First Bank. That move is not lawful, to say the least. Suffice it that the Court shall not delve into that presently. Equity leans against double portions. The Claimant also stated that she resigned from the 1st Bank when she was suspended; for fear that she will be dismissed. She opted out- was not fired. Added to this is the fact that the issue is vague. There is insufficient fact to show which of the employments the loss is being claimed for. ISSUE 4 “Whether the Claimant is entitled to the grant of the relief claimed in alternative for the monthly sum of N446, 272.52 from 11th January 2010 to 17th August, 2010.” There are many angles to this Issue. The 11th January is the date the Claimant resigned her appointment (with immediate effect), which, if there was no guiding policy, would have determined her employment. 17th August 2010 is the day Defendant allegedly dismissed the Claimant. Was it for services rendered by the Claimant, who under x-examination conceded that she had been with the First Bank before she submitted her letter of Resignation? It is in evidence that Defendant’s rejection of the Resignation was for the purpose of resolution of some serious issues involving her- which is allowed in law. This Issue is also resolved in the negative. A relief such as this, particulars of the Claim must be specially pleaded and strictly proved by credible evidence. The purport of the specific particulars forming the basis of the Claim is to enable the other party know what the claim against him is; and proving his case by adducing evidence in line with his pleadings. See USMAN V. ABUBAKAR (2001) 12 NWLR (PT 728) pg 685 at 704, para B-D; and pg 722, para H. Even if the Claimant was entitled to any money howsoever, in the absence of particulars of special damages, and a strict proof of how the figure was arrived at, the Prayer fails as the Court cannot make any Orders in vacuo. ISSUE E is on all fours with Issue 1, and has been addressed. In all, the Court holds as follows; I. Claim A. fails. The resignation of the Claimant, dated 11th January received by the Defendant, in law should effectively determine the Claimant’s employment, had there been no Exhibit EUN D2, to which both parties are bound. II. Claim B. fails. The Defendants letter dated 18th January 2010 and 17th August 2010 are not null and void as the Claimant’ could not have legally ceased to be Defendant’s staff. There was no provision for resignation with immediate effect either in Exhibit EUN 1 or Exhibit D2. iii. Claim C fails. The communication between the Defendant and the 1st Bank is a Qualified Privilege and destroys the inference of malice. On the part of the Defendant. iv. Claim 4 has nothing to prop it up. Claimant was not attending work for the Defendant but for the First Bank who had begun to pay her and cannot claim for this period. The case of the Claimant did not succeed and is dismissed accordingly. JUDGMENT is entered accordingly. I shall make no Order(s) as to costs. …………………………………………… HON. JUSTICE M. N. ESOWE.