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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 26TH FEBRUARY, 2105 Suit No. NICN/ABJ/305/2012 BETWEEN MR. ERNEST KEMAKOLAM CLAIMANT AND ACCESS BANK PLC DEFEDNANT REPRESENTATION Mr. Wilson E. Ivara Esq for the Claimant. Nsikak Udoh Esq for the Defendant. JUDGMENT The general form of complaint dated 20th November, 2012 and filed the same date, the claimant sought for the following claims:- a. AN ORDER of specific performance directing the defendant to pay the sum of N1,350,372.75 (One Million Three Hundred and Fifty Thousand Three Hundred and Seventy-two Naira Seventy-five Kobo) being the outstanding balance of claimant’s retirement severance benefit due and payable by the defendant. b. The sum of N1,000,000.00 as damages for breach of agreement. c. 10% of Annual interest on the Judgment sum till liquidation. d. The sum of N1,000,000.00 as general damages. Attached to the complaint are the claimant’s statement of facts, witness statement on Oath, list of witnesses and list of documents to be relied upon at the trial. The defendant in reaction to the complained entered a memo of conditional appearance dated and filed 30th January, 2013. Thereafter other accompanied processes were filed. The case went on trial, the claimant testified and called another witness named Amos Adepoju Agidi to testify in his case. While the defendant called a witness in the person of Mr. Olakunle Olasore the Manager, Head/Employee share services of the defendant. On the 2nd of December, 2014 parties having filed and exchanged their final written addresses and adopted same. The defendant raised a sole issue for the determination of the court which is:- Whether on the strength of pleadings and materials placed before this Honourable Court, the claimant has proven on the preponderance of evidence that he is entitled to all or any of the reliefs claimed in this suit. The defendant submitted that the claimant’s reliefs are as contained in the originating processes. That in respect of relief (a) which is:- AN ORDER of specific performance directing the defendant to pay the sum of N1,350,372.75 (One Million Three Hundred and Fifty Thousand Three Hundred and Seventy-five Naira) (sic) being the outstanding balance of claimant’s retirement severance benefit due and payable by the defendant. The defendant submitted that examining the principles when a party seeks an order of specific performance of a contract before alluding to the peculiar facts of this case as well as the evidence led by the claimant in support of this relief. The defendant submitted relying on the case of Afro Tech Services Nig. Ltd V MLA & Sons Ltd (2000) 15 NWLR (Pt. 692) 730 at 790, that a party who seeks an order of specific performance must have been breached by the defendant and damages must have shown to be inadequate or defective in the circumstance as compensation to the injured party whose right was breached. That in the present suit, the claimant has not in the slightest way shown or proven the existence of any legal right which has been infringed by the defendant. The claimant’s letter of resignation dated 23rd January, 2012 was reproduced:- NOTICE OF RESIGNATION OF APPOINTMENT I wish to inform you of my intention to resign my appointment with the Bank effective 31st March, 2012. Exhibit 01:- This decision was conceived out of my burning desire to further my education for a more challenging future career. I sincerely appreciate the cordial working relationship and the wide range of knowledge which I have gained over my period of service in this great institution. I look forward to another opportunity to serve the organization in future. Thank you. Continuing the defendant submitted that what would have entitled the claimant to a legal benefit from his contract of employment with the defendant’s predecessors was the service rendered to the latter. The defendant submitted that claimant having resigned from his employment without sufficient notice, he had prematurely stopped coming to work, as this was established vide the uncontroverted deposition of DW1 at paragraph 13(e) of his witness statement on Oath. Relying on the case of E.S.U.S.T. V I. JME Ltd (2010) 11 NWLR (Pt. 1205) 297 at 319. That where facts contained in an affidavit remain unchallenged and uncontroverted by the other party, the court is bound to accept those facts as established and deem the facts as admitted. That in the light of the above and on the strength of the above authority the claimant clearly breached the clear and express terms of his contract with IB Plc and is therefore bereft of any right or moral latitude to seek equitable remedy of specific performance. The defendant then submitted the pertinent question to ask is that the claimant having resigned his employment with IBPlc on 23rd January, 2012 to be said to have furnished any form for consideration for any benefit or promise that had bee made either to other members of staff of IB Plc of the defendant. The defendant answered the question in the negative submitting that the claimant having already resigned his employment was indeed no longer in the service of IB Plc and there was no consideration for the said promise of severance package to warrant an order of specific performance in favour of the claimant. Relying on the case of B. Stabilini & Co Ltd V Obasi (1997) 9 NWLR (Pt. 520) 293 at 305 and Dunlop Pnueumatic Tyre Co Ltd V Selfridge and Company Limited (1915) AC 847 at 153 where the House of Cords held thus:- A second principle is that if a person with whom a contract not under seal has been made, is to be able to enforce it consideration must have been by him to the promissor or to same other person at the promissor’s request. That the foregoing underscores the fact that the claimant having already resigned his employment vide Exhibit E9, indeed terminated his existing contract with IBPLC and having not offered any further consideration on the bare promise if IBPLC cannot be allowed to benefit there promise even on the basis of went of consideration. Relying on Exhibit 03 at page 11 provides as follows:- In all other circumstances employment can be terminated by either party giving to the other notice as follows…… The defendant submitted that the claimant is not entitled to the order of specific performance, that the bare promise if a person in the absence of consideration or a signed agreement thereto cannot be enforceable by a court of law. The defendant went on to ask about the relevant term of the contract in controversy. To the defendant, what is the claimant’s contract with IBPLC and in particular the mode of contract’s resignation as against what was agreed by the parties. While the claimant maintains that he discharged his obligations under the contract to entitle him to certain severance benefits, the defendant’s on the other hand maintains that the terms of his contract with IBPLC were violated and that the claimant resigned before the severance package was put in place. Hence, the claimant cannot be allowed to access the severance benefits when he was no longer in the employ of IBPLC when the severance was put in place. The defendant referred to the contents of page 11 of Exhibit 03 stating that the claimant ought to have served the full notice period of three months with IB Plc up till 22nd April, 2012 pursuant to the contract of employment but my promise to same till 31st March, 2012. That the claimant issued his letter of resignation Exhibit E2 and contrary to Exhibit 9, the claimant stopped coming to work. To the defendant, the claimant never intended to give the requisite 3 months from the unset in order to honour the terms of his employment. That the terminal date stated therein by the claimant is 31st March, 2012, that this position has not being challenged by the claimant. Relying on the dictum of lord Radcliffe as expressed in the case of Australian tardouuds Pty Ltd V Commissioner for Railway (1961) All ER 737 at 742 thus:- A Plaintiff who asks the court to enforce by mandatory order in his favour some stipulation of an agreement which itself consists of independent undertakings between the Plaintiff and the defendant cannot succeed in obtaining such relief if he is at the time in breach of his own obligations. Also in the case of Teriba V Adeyemo (2010) 11 NWLR (Pt. 1211) 242. The applicable equitable principle that a person cannot benefit from his own wrong. The defendant further contended that equity will operate to prevent the claimant under the circumstances of this suit to deriveaving further benefit from the contract of IB Plc which he consented to the terms which he breached, when he did so voluntarily. The defendant also further contended that Exhibit 2 the subsequence letter of resignation dated 2nd February, 2012 issued by the claimant was an after thought after receiving Exhibit E5. To the defendant the severance package was for firstly, for persons who had been offered employment by the defendant after 1st January, 2012 merger. Secondly, had opted to decline the offer by simply tendering their letter of resignation on or before 3rd of February, 2012. They submitted that there was nothing placed before the court that the claimant at any time material was offered a new appointment, like most of his colleagues who were as at then still in the employ of IB Plc. That the claimant never put before the court that he was at any material time accepted any offer of employment from the defendant thereto or from IB Plc after he had resigned his employment vide Exhibit E9. The defendant then contended that on the claimant obviously does not belong to the class of persons contemplated in Exhibit 5 given the fact that he had resigned his employment to pursue his educational dreams for more challenging career. The defendant contended further that the claimant never received any offer of employment from the defendant and at all times material was a staff of IB Plc. He could not have resigned there from and turn around and put in another letter of resignation merely to benefit from the severance package offered to the current staff of IB Plc. That the claimant only realized that he had indeed resigned his employ with the IB Plc as for back as 23rd January, 2012 and merely serving the period he had given vide Exhibit 9. The defendant that the claimant cannot resign twice from his employ, that he cannot terminate the contract twice. The defendant relied on the case of Riordan V The war office (1959) 3 All ER 552 at 557 to 558 paras H – A. The defendant urged the court to dismiss the claimant 1st relief. The defendant went further and drew the attention to the attitude of the claimant in concealing the existence of Exhibit 8 which is his letter of resignation of 23rd January, 2012 the contract between the claimant and IB Plc was indeed terminated before the merger with the defendant and on the strength of the conditioning of service Exhibit 03 and no more, invoking the provision of Section 167 of the Evidence Act. Thereafter, the defendant referred to the claimant’s pleadings and evidence as contained in the statement of facts and his witness statement on Oath submitting that these represent the basis for the claimant’s assertion that he is entitled to an order of specific performance from this court against the defendant having issued E2. The defendant contended that the facts contained in the above set of facts does not disclose any form of contract between the claimant and the defendant. That it is difficult to understand how he can claimed to resign vide Exhibit E2 from the defendant who is a complete different juristic personality without being offered any of employment by the defendant after he had resigned with IB Plc before it was acquired by the defendant hereof. The defendant referred to the deposition of DW1 in paragraph 9g of the effect that …. all staff of IB Plc who were willing to join the defendant after the 010212 merger were given letters of employment which they filled and returned to the defendant as indication of acceptance of the offer. That the claimant did not tender any such letter in evidence, and this is for the obvious fact that he had resigned from IB Plc. That no offer was made to the claimant after his resignation and in the same vain he never accepted any offer of employment from the defendant. Continuing the defendant submitted that claimant basis of calling in and the evidence of Mr. Amos Adepoju that there are distinguishing factors between the claimants case and Mr. Adepoju experience with the defendant. While Mr. Adepoju never resigned before the conclusion of the merger between the IB Plc and defendant on 1st February, 2012. That he was also offered a fresh letter of employment by the defendant but the claimant was never offered such. That Mr. Adepoju was able to submit his resignation letter directing to the defendant who had undisputedly offered employment to him at the time. The defendant further submitted that it is pertinent to point out that the effect of the 010212 merger means that the separate juristic personality of the defendant remains as distinct from that of its predecessor. On this issue the defendant submitted that Exhibit E2 was worthless and it proves absolutely nothing and leads no legal or equitable right whatsoever, to the claimant. In that it would not even serve as a reminder letter to the defendant because the initial resignation letter E8 was not submitted to the defendant rather it was submitted to IB Plc. The defendant therefore, urged the court to discountenance Exhibit 2 and uphold the defendant submissions and on the basis dismiss the suit. The defendant then submitted that the claimant has not discharged or prove the burden imposed on him by law. On reliefs (b) (c) and (d) the defendant submitted that the stated reliefs sought by the claimant derives their legitimacy and dependant on relief (a) the proving relief in this suit. They submitted that relief A is clearly devoid of merits and it will be impossible to grant the subsequent reliefs sought by the claimant. The defendant also contended that it is an abuse of court process for the claimant to seek an order of specific performance simultaneously with damages for the alleged breach of contract as done in this suit. Concluding that on the strength of the arguments canvassed in defence to suit, the statutory and judicial authorities cited in support of the argument and the preponderance of evidence on record resolve the sole issue framed for determination in favour of the defendant and dismiss the suit. On his part the claimant counsel formulated three issues for the determination of the court:- 1. Whether the claimant was still working as a staff in the service of the defendant on the 30th January, 2012 when the defendant’s special severance benefit was introduced. 2. Whether the claimant is entitled to the defendant’s special severance benefit amounting to the outstanding sum of N1,350,372.75. 3. Whether the claimant is entitled to the grant of his entire reliefs sought. On issue one which is whether the claimant was still working as a staff in the service of the defendant on the 30th January, 2012 when the defendant’s special severance benefit was introduced. The claimant counsel answered the 1st issue in the affirmative in favour of the claimant. That the claimant was still working as a staff of the defendant on the 30th January, 2012 where the defendant’s special severance benefit was introduced. The claimant counsel then asked on when the retirement of an employee takes effect. He relied on the case of RIODAN V WAR OFFICE (1959) 3 All ER 552 where DIPLOCK held:- The giving of notice terminating the employment whether by the employee or employer is the right under the contract of employment to bring the contract to an end, either immediately or in the future. The counsel submitted that the letter accepting the claimant’s resignation with the defendant Exhibit 01 dated 23rd April, 2012 acknowledge that the claimant resignation takes effect from February 3rd, 2012 in other words the claimant was a staff of the defendant till 3rd February, 2012. The counsel cited the case of Mrs. Agnes Folashade Osu V Peogeot Automobile Nigeria Ltd (2001) 13 NWLR (Pt. 731) that the Appeal held that:- I agree with the trial Judge’s finding by the condition of service she is bound to give one month notice. The notice she gave was on the 9th December, 1996 and would have expired on 8th January, 1997 regardless of the Respondent’s directives that she would stop on 31st December, 1996, the appellant was therefore a staff of the respondent up to and including the 8th of January, 1997. The counsel argued further that Exhibits E3 AC which is the exit interview indicates that the claimant was still working with the defendant when Exhibit E5 which introduced a special severance package scheme on 30th January, 2012 counsel contended that regardless of the claimant’s earlier notice of resignation dated 23rd January, 2012 i.e. by Exhibit E8 the claimant was still working with the defendant as a staff. To the counsel Section 11(6) of the Labour Act provides that nothing shall prevent either party to a contract from waiving his right to the notice on any occasion or from accepting a payment in lieu of notice. Continuing the counsel went further to submit that the claimant was at all material time a staff of the defendant as the defendant having merged and acquired the former Intercontinental Bank, cannot accept the assets and deny the liabilities. The counsel referred to paragraph 3 of the DW1 witness statement on Oath, that the admission there clearly constitutes an admission as to the acceptance of all existing obligations arising from the former Intercontinental Bank by the later. The learned counsel for the claimant argued issues 2 or 3 together in the affirmative and also urged the court to resolve same in favour of the claimant. On this he submitted that the claimant having issued Exhibit E9, that the content of Exhibit E2 does not in anyway place a bar to the claimant as same was addressed to colleague and received by the claimant while working with the defendant. That Exhibit E5 was sent to all SBO including the claimant, hence the terms are applicable to the claimant, that there is no where in Exhibit E5 that exclude staff who had not resigned as at 30th January, 2012 with the defendant, contending further that a written brief of counsel cannot take the place of pleading and evidence where such evidence is not led during trial. The counsel further submitted that Exhibit 18, the revised condition of service does not discriminate against any staff, it applies to all staff, irrespective of whether or not they are Senior of Junior staff. Exhibit 18 was written eight days after the signing of Exhibit 19. To buttress his stand the learned counsel referred to the provisions of Exhibit E5 which states thus:- To: Bolaji Agbede (Divisional Head, HR & Risk Mgt ET1, ET2 S ET, ABOs BOs, SBOs, AMS, Oms, Managers & Above. Dear Colleagues, We are pleased to inform you that the HR integration process is near completion following the dispatch of offer letters. To this end, please forward to HR (Kunle Olashore) by close of business on February 01, 2012, your duly executed offer letter of employment as well as the following documents:- 1. Copies (duly executed) of bond of fidelity. 2. Duly signed attestation of the bank’s code of conduct. 3. Duly signed attestation of the Bank’s staff handbook. 4. Completed employee data form. 5. Duly completed application form. Please notwithstanding the submission of the offer letter you can still benefit from the severance package by exercising the option to resign on or before close of business of February 03, 2012. We look forward to welcoming you into the Access Banks family. That from the face of Exhibit E5 that states that the mail was sent to staff of the defendant including the claimant was only for the staff who had not resigned as at 30th January, 2012, that the court should reject any attempt to smuggle extraneous facts which do not exist. The counsel also referred to the evidence of PW2, Mr. Amos Adetutu Agidi under cross examination. That he was a colleague and of the same level as the claimant that he benefited from the enhanced severance package simply by resigning before the 3rd February, 2012 as directed by the defendant, the same time the claimant resigned. That in the light of the above the claimant is entitled to the special severance package and urged the court to so hold. The counsel urged the court to hold that the defendant is estopped from resigning from the special severance package and urged the court to order specific performance of his obligation. In that the defendant vides Exhibit E5 made a directive introducing the special severance scheme, same was communicated to the claimant who was working with the defendant at the time as an SBO. On points of law the defendant’s argued the three issues raised by the claimant. The 1st being that the claimant claimed to still be in the employment of the defendant notwithstanding the issuance of Exhibit E9. But that he was never issued an offer of employment by the defendant as done to other staff of IB Plc. The defendant submitted in the following cases Mrs Agnes Folashade V Peugeot Automobile Nigeria Ltd (2001) 13 NWLR (Pt. 731) and Honkia Sawmill V Itoff (1992) 4 NWLR (Pt. 238) etc that these authorities relied upon by the claimant have no nexus between the facts and principles applied in the aforementioned cases and the claimant’s case. That the authorities cited by the claimant did not support his contention that he is to be deemed as having been automatically retained as a staff of the defendant even after a merger and acquisition had taken place. That there was no merger situation in any of the authorities cited and urged the court to discountenance the novel and unfounded submissions of the claimant. The defendant further submitted that the anvil of the claimant case is in Exhibit E5 which published and brought into existence of the special severance package which the claimant now seeks to get however, fails to realize that the said Exhibit 5 was clearly addressed to persons to persons to whom offer letters were already issued and not people like the claimant who had since resigned. Continuing the defendant submitted that claimant failed to allude to the fact the concluding paragraph of the Exhibit 5 had clearly stated:- Notwithstanding the submission of the offer letter, you can still benefit from the severance package by exercising the option to resign on or before the close of business of February 03, 2012. To the defendant this means that those who have been given offer letters by the defendant can exercise the option to benefit from special severance package if they choose to resign despite having received such offers as opposed to the claimant who had since resigned. On this issue the defendant invited the court to peruse Exhibit DW1 the offer letter issued by the defendant to some IB Plc. Commenting of issues 2 & 3 whether the claimant is entitled to the defendant’s special severance benefit amounting to the outstanding sum of N1,350,372.75 and whether the claimant is entitled to the grant of his entire reliefs sought. Contracting the submissions of the claimant that Exhibit E2 does not in any way place a bar the on claimant as same was addressed to colleagues and received by claimant while working for the defendant. That the claimant claimed that his resignation is dated 31st March, 2013 and that the Email came before his resignation. The defendant submitted that it was never the case that all person who existed the Bank had automatic employment so as to enable them benefit from the special severance package offered through Exhibit E5 as there was no such policy in place neither has the claimant provided proof of such. But that the special severance package was meant only for the addresses of Exhibit 5 who were availed on option to resign. On the applicability of the doctrine of estopped the claimant had urged the court to invoke and apply it in favour of the claimant, the defendant urged the court to discountenance the claimant wailing for the application of the doctrine in the suit is that from the agglomeration of the evidence before the court no representation whatsoever was made to the claimant concerning Exhibit E5, but that Exhibit E5 was only made to the defendant who were capable of exercising the option to resign and not for the claimant’s category who already resigned. The defendant also submitted that the claimant had made a mountain of the fact that the defendant had acknowledged and accepted Exhibit 02 – his contrived and subsequent letter of resignation vide Exhibit 01, defendant’s letter of acceptance. To the defendant the claimant had misconceived the essence and purport of Exhibit 01, in that the claimant initial and valid resignation has its effective date of resignation stated as 31st March, 2013 whereas in Exhibit 02 the contrived and afterthought based resignation letter the effective date was compressed and brought forward to 2nd February, 2012. They went further to argue that the claimant had already breached his terms of employment by giving a notice shorter than 3 months vide Exhibit 9, and he only aggravated his act of breach by desperately issuing Exhibit 02 which shortened his period of notice while at the same time acknowledging the authorship of Exhibit E9. The defendant further contended that it had no powers to compel the claimant to remain his employment until the expiration of his valid period of notice, and had no other option than to accept the terminal date of February 2012, when Exhibit 01 was issued and accepted by the defendant, claiming that the acceptance does not mean that the defendant had yielded to the claimant’s plan to derived benefits of Exhibit E5. That no representation has made to the claimant and so the principle in the case of IGA & ORS V AMAKARI & ORS (1976) 11 SC 1 at 12 – 12, LAWAL V UBN (1995) 2 SCNJ 732 AT 145, ONDO STATE UNIVERSITY V FOLAYAN, ONAMADE V ACB (1997) 1 SCNJ 65 AT 85 and UDE V OSUJI (1998) 10 SCNJ 75 AT 82 come to the claimant’s aid or for that matter, the provision of Section 169 of the Evidence Act 2011? The defendant further submitted that the law is clear on the essence of estoppel by conduct which is to prevent people from suffering after they have altered their positions to their own detriment and for which equity would frown at for the simple reason that would be placed in such a position if not for representation relied upon. The defendant argued how the principle can possibly apply to the facts of the instant case. What exactly did the claimant suffer after the publication of Exhibit 01. Has his situation been made more detrimental by the issuance Exhibit 01 which merely represented his wish to cease the performance of his services earlier than as communicated in Exhibit E9? What is the misfortune that equity will seek to prevent in applying the principle of estoppel in this instance? The defendant urged the court to reject the applicability of the principles of estoppel by conduct to the instant case. The defendant went further to submit and as to what contract the defendant have with the claimant? Where is this contract embodied? That if the evidence before the court cannot answer the severance questions then how can the principle of specific performance hinged on by the claimant apply to the benefit of the claimant. That if put in another way that there was a contract of employment between the defendant and the claimant and the defendant should be construed and having the same personality with IBPLC what is the exact breach that the claimant who has voluntarily resigned prior to the issuance of Exhibit E5 out of his burning desire to further his education for a more challenging future career complain of. That it would be absurd for the defendant to reject the claimant’s voluntarily resignation having resigned prior to the issuance of Exhibit E5, that the claimant locked the capacity to exercise a further option to resign as provided for in Exhibit E5 and that forms the basis for his exclusion from the special severance package largesse. That there is no single ground which the claimant can validly allege any breach against the defendant in the circumstance. The defendant also referred to the claimant submission that he is entitled to the special severance package since he had worked at the same rate and rank with PW2. In support of which he relied on Article 15 of the African Charter as well as Section 1 of the Constitution of Nigeria 1999 (as amended) to buttress his contention that individuals are enjoined in law to work equitable and satisfactory conditions. To the defendant the statutory authorities would not apply to the instant case for the simple reason that the claimant had issued Exhibit E9 as the time the defendant called upon its would be employees to exercise the option of resigning as to derive the benefit of Exhibit E5. That a man who had already resigned cannot exercise other future right of resignation because there was nothing left to resign from, having expressly expressed his gratuity for the opportunity to work while looking forward to another opportunity to serve in future, unlike PW2 who did not tender any resignation until Exhibit E5 was issued. For this reason, he cannot said that the claimant worked at the same rate and rank with PW2. That the defendant was therefore perfectly within its rights to pay PW2 the special severance package unlike the claimant who had resigned. In summary and conclusion the defendant submitted that the sole issued raised by the defendant should be resolved in favour of the defendant. After a critical review of the submissions, authorities, and evidence adduced at the trial the issue for determination is:- Whether the claimant is entitled to reliefs sought. The brief facts of the case are that the claimant was employed by the Intercontinental Bank Plc as a clearing officer on the 10th of October, 2005. He worked for Intercontinental bank and rose to the post of Bank Manager which was the last promotion he earned on the 28th of March, 2008. On the 23rd of January, 2012 the claimant resigned his appointment from the Intercontinental Bank Plc effective 31st March, 2012. About 9 days after the claimant had resigned his employment from the Intercontinental Bank Plc the merger process which was in progress between Access Bank Plc and Intercontinental Bank was concluded on the 1st of February, 2012. As a result of this merger between the defendant and the Intercontinental Bank Plc, Mr Bolaji Agbede sent a mail to staff of who were willing to exercise the option to resign on or before close of business of 3rd February, 2012. The mail Exhibit E5 is reproduced hereunder:- Dear Colleagues, We are pleased to inform you that the HR integration process is near completion following the dispatch of offer letters. To this end please forward to HR (Kunle Olashore) by close of business February 03, 2012 your duly executed offer letter of employment as well as the following documents:- 1. Copies (duly executed) on bound of fidelity. 2. Duly signed attestation of the Banks, code of conduct. 3. Duly signed attestation of the Bank’s staff handbook. 4. Completed employee data form. 5. Duly completed application form. Please note, notwithstanding the submission of the offer letter, you can still benefit from the severance package by exercising the option to resign on or before close of business of February 03, 2012. We look forward to welcoming you into Access Bank family. Thank you. Bolaji Agbede (Divisional Head HR & Risks Mgt). The claimant having put in his letter of resignation on the 23rd of January, 2012 decided to take advantage of the mail sent to staff by Mr. Bolaji Agbede and sent in another letter of titled: RE:SINGNATION OF APPOINTMENT dated 2nd February, 2012 to the HR Manager Intercontinental Bank Plc, referring to his earlier letter dated 23rd January, 2012 in which he served his notice of resignation with effect from 31st March, 2012 in line with his contract of employment with Intercontinental Bank Plc. That sequel to the mail from Balaji Agbede his resignation of appointment is now with effect from 2nd February, 2012. The claimant maintained that he remained at all material time a staff of the defendant as the defendant having merged and acquired the former Intercontinental Bank Plc. That he was still working with the defendant when Exhibit E5 on special severance package was issued on 30th of January, 2012 by Mr. B. Agbede, regardless of his earlier notice of resignation of 23rd January, 2012 Exhibit E8. That he is therefore entitled to benefit from the special severance package introduced by Exhibit E5. A careful perusal of the above mail Exhibit E5 shows that there are certain conditions that must be met or where set out for staff to comply with by the staff before they can benefit from the special severance package. The conditions have been stated above. To the claimant the mail Exhibit E5 was sent to him and other staff and no where on the face of the Exhibit E5 that the mail it was for staff who had not resigned as at 30th January, 2012. The claimant argued that his statement on Oath in paragraphs 5, 6, 7 8, 9 and his Exit forms Exhibit E3 – A to C indicate that he was still working with the defendant when Exhibit E5 was issued on 30th January, 2012. The question that must be answered to give solution to the claimant’s claim whether he can benefit from special severance package is as to the status of the claimant in relation to Exhibit E5. It is very obvious that the claimant had effectively resigned his employment with IBPLC by a letter dated 23rd January, 2012 effective 31st March, 2012. Having resigned his appointment the claimant was not among the class of colleagues capable of exercising the option to resign on or before 3rd February, 2012 having effectively terminated his employment with the IBPLC. It is also my view that the claimant is therefore not entitled to benefit from the special severance package. It is also obvious that the claimant’s case is different from that of Mr. Adepoju his colleague benefited from the special severance package because he did not resign his appointment before the merger. To answer the above question, it is my view that the claimant even though was still in the employment of the defendant when Exhibit E5 was issued, he was actually an employee of the Intercontinental Bank Plc having resigned before the merger and tendered his resignation letter to Intercontinental Bank Plc. In actual fact, there was no merger as at the time he resigned his appointment with his employer Intercontinental Bank Plc and he was only working out the period of notice. The defendant never inherited him as their staff after the merger for he had effectively resigned his appointment on the 23rd of January, 2012. The 2nd letter of resignation Exhibit E2 cannot bring the claimant into the bracket of staff still in the employment of the defendant. The 2nd letter of resignation titled: RE: RESIGNATION OF APPOINTEMNT merely made reference to his earlier letter of 23rd January, 2012 without withdrawing same. In my view, the defendant did not inherit the claimant at his employee having resign on the 23rd of January, 2012 while the merger came up on the 1st of February, 2012. Furthermore, before the claimant can benefit from Exhibit E5 (the mail) he must prove that he complied with the requirement’s listed in the mail. His failure to tender copies of the documents requested for is very fatal to his case. The mail did not request for Exit forms Exhibit E3 A-C put in another way did the claimant submit to Mr. Kunle Olashore before the close of February 01, 2012 executed letter of employment as well as the documents mentioned there? The answer is no. The case of the witness called by the claimant to testify for him in this matter is quite different from that of the claimant while the claimant voluntarily resigned his employment before the merger, while Mr. Adepoju resigned after the merger, and took advantage of the option to resign and Access Bank accepted his letter of resignation and so he was able to benefit from the special severance package. The claimant is therefore not entitled to be paid the sum of N1,350,372.75 (One Million Three Hundred and Fifty Thousand Three Hundred and Seventy-two Naira Seventy-five Kobo) and for the payment of 10% annual interest on the Judgment sum. The claimant is also demanding for the following reliefs:- b. The sum of N1,000,000.00 as damages for breach of agreement. c. The sum of N1,000,000.00 as general damages. The sum of N1,000,000.00 (One Million Naira) Only as general damages. It is settled law that general damages is the kind of damage which the law presumes to flow from the wrong complained of. They are such as the court will award in the circumstances of a case, in the absence of any yardstick with which to access the award except by presuming the ordinary expectations of a reasonable man. General damages may be awarded to assuage such a loss which flows naturally from the defendants act, it need not be specifically pleaded. It suffices if it is generally averred. They are presumed by the law to be the direct and probable consequence of the act complained of. Unlike special damages it is generally incapable of substantially exact calculation. It is trite that general damages is only awarded at the discretion of the Judge acting judicially and judiciously having considered the facts of the case. An award for damages is not granted in vacuum the defendant must have been found liable of the acts complained of and that would be the basis on which the court would rest whatever damages it sees fit to grant to the claimant. Where there is no wrong damages will not be awarded. The claimant has not been wronged by the defendant and for this the court makes no award. The last claim which is N1,000,000.00 for breach of agreement, the court also makes no award since the claimant did not tender or present to the court the agreement reached by the parties that was breach by the defendants. For the reason given above, the claimant claims fail and are hereby dismissed. Judgment is entered accordingly. _______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE.