CORAM

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HON. JUSTICE (PROF) ELIZABETH A. OJI

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PARTIES

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HP INTERNATIONAL SCHOOLS LIMITED

APPELLANTS 

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EMMA ELEGBE

RESPONDENTS 

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AREA(S) OF LAW

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EMPLOYMENT LAW, LABOUR LAW, CONTRACT OF EMPLOYMENT, BREACH OF CONTRACT BY EMPLOYEE, NOTICE OF RESIGNATION, PAYMENT IN LIEU OF NOTICE, CONSTRUCTIVE DISMISSAL, REPUDIATORY BREACH, MUTUAL TRUST AND CONFIDENCE, SANCTITY OF CONTRACT, WAIVER, EMPLOYER’S ACCEPTANCE OF RESIGNATION, FORCED AND COMPULSORY LABOUR, ADMISSIBILITY OF EVIDENCE, COMPUTER-GENERATED DOCUMENTS, SECTION 84 EVIDENCE ACT, COUNTER-CLAIM, SPECIAL DAMAGES, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Claimant, HP International Schools Limited (operating as Hampton Preparatory School), engaged the Defendant, Emma Elegbe, as Head of School pursuant to an offer of employment dated July 16, 2017 (Exhibit C1) and a Statement of Particulars of Employment dated July 25, 2017 (Exhibit C2/D1). The terms of engagement provided for a notice period of two school terms (equivalent to six months) or payment of six months’ salary in lieu of notice upon termination by either party. Following a salary review in 2019, the Defendant’s annual package was increased to N12,000,000 (per Claimant) or N14,000,000 plus £1,000 holiday allowance (per Defendant), payable as N800,000 monthly plus two lump sums.

On February 15, 2020 (Exhibit C3/D6), the Defendant submitted a resignation letter giving the required two terms’ notice, to take effect at the end of December 2020. The parties did not contest that this initial resignation conformed to the contractual notice requirement.

Thereafter, the Defendant alleged that the Directors of the Claimant began engaging in conduct that undermined her authority as Head of School, including: making strategic decisions without consulting her; holding her responsible for problems she lacked authority to resolve; overriding her disciplinary authority over insubordinate staff; and demanding that she summarily dismiss a staff member without fair hearing. On April 29, 2020, the Claimant’s Directors held a Zoom meeting with parents without inviting the Defendant (Exhibit D14), to address parental grievances about fees and virtual learning arrangements. A recording of this meeting was obtained by the Defendant (Exhibit D16). During the meeting, one parent, Mrs. Aliyu, made a remark about someone being “put under the bus,” which the Defendant interpreted as the Directors having blamed her management style before parents. On April 30, 2020, the Directors wrote a letter to parents (Exhibit D17) which the Defendant also characterised as deflecting blame onto her.

On May 1, 2020 (Exhibit C4/D18), the Defendant sent an email titled “Notice to leave being brought forward,” stating her intention to resign with immediate effect, citing the Directors’ conduct at the April 29 meeting as having rendered her continued employment untenable. The Claimant accepted the resignation (Exhibit D20) and on the same day the Directors informed parents via Zoom that Dr. Roy Lilyman would take over immediately as Head of School.

The Claimant sued the Defendant for breach of contract, claiming six months’ salary in lieu of the unserved notice period (N4,800,000), return of a pro-rated unearned performance bonus (N666,666), and costs of N20,000,000. The Defendant denied breach, pleaded constructive dismissal, and counter-claimed for three months’ salary in lieu of notice, the May lump sum payment (N2,000,000), holiday allowance of £1,000, damages of N8,000,000, unremitted pension contributions, and costs.

The court found that the Defendant had not established constructive dismissal, as the recording of the April 29 meeting (Exhibit D16) did not disclose any indictment of the Defendant — only a brief, ambiguous remark by one parent near the end of the meeting was relied upon, which was wholly insufficient to establish the employer’s repudiatory breach required to justify abrupt resignation. The court further held that the Claimant’s acceptance of the resignation did not constitute a waiver of its right to enforce the contractual notice obligation. The court awarded the Claimant N2,800,000 representing the three and a half months of the notice period unserved (deducting the two and a half months the Defendant had already worked during the notice period). Reliefs for the bonus refund and costs failed for lack of proof. The counter-claim failed entirely.

 

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HELD

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The suit partially succeeded. The court held that the Defendant breached her contract of employment by resigning with immediate effect before expiry of her contractual notice period, and that she failed to establish constructive dismissal. The court found that the evidence, including the recording of the April 29 meeting, did not disclose any repudiatory breach by the Claimant warranting abrupt resignation. The Claimant’s acceptance of the resignation did not waive its right to enforce the notice obligation, as an employer has no discretion to refuse a resignation — acceptance is compulsory, not a waiver. The court awarded N2,800,000 representing the remaining three and a half months of the notice period (deducting the two and a half months already served). The claim for return of the pro-rated bonus and costs failed for lack of proof. The counter-claim failed in its entirety — constructive dismissal was not established, and the remaining reliefs failed either as consequences of that failure or for lack of proof. Parties were ordered to bear their individual costs.

 

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ISSUES

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1. Whether Exhibits D34-D39 were made in anticipation of litigation and therefore inadmissible; and whether various other documents should be expunged for non-compliance with Section 84 of the Evidence Act or for not being tendered by their makers?
2. Whether the Claimant constructively terminated the Defendant’s employment, thus entitling her to bring the contract to an end abruptly without serving the notice period or paying salary in lieu?
3. Whether the Claimant waived its right to enforce the contractual notice obligation by accepting the Defendant’s immediate resignation?
4. Whether the Claimant was entitled to the reliefs sought for breach of the notice period, return of the unearned bonus, and costs?
5. Whether the Defendant/Counter-Claimant was entitled to the reliefs sought in the counter-claim for constructive dismissal, outstanding emoluments, damages, pension contributions, and costs?

 

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RATIONES DECIDENDI

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CONSTRUCTIVE DISMISSAL – LEGAL CONDITIONS – WHAT AN EMPLOYEE MUST PROVE TO ESTABLISH CONSTRUCTIVE TERMINATION

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“Constructive dismissal or termination as indicated by case law is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign. In such cases, the employee retains the right to seek legal compensation as having been dismissed or terminated constructively. In the case of Western Excavating v. Sharp (1978) 1 All ER 713, Lord Denning listed what an employee must prove in a claim for constructive dismissal as follows: 1. A repudiatory breach on the part of the employer, 2. An election by the employee to accept the breach and treat the contract as at an end, 3. The employee must resign in response to the breach, 4. The employee must not delay too long in accepting the breach, as it is always open to an innocent party to waive the breach and treat the contract as continuing (subject to any damages claim that they may have).” – Per Oji, J.

 

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CONSTRUCTIVE DISMISSAL – SINGLE AMBIGUOUS REMARK BY THIRD PARTY INSUFFICIENT TO ESTABLISH REPUDIATORY BREACH – HIGH THRESHOLD REQUIRED

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“If parties to a contract are allowed to avoid their obligations, on the slightest annoyance or discomfiture, then, the sanctity of contract will be part of the ashes of history, in no time. I am of the opinion that the Defendant has not led evidence to show such conduct of the Claimant that led to her resignation. She has not shown any repudiatory breach on the part of the employer, justifying her abrupt resignation. The Defendant is bound to give the requisite notice as stated in her contract of employment; and not to adjust it unilaterally. The argument on constructive dismissal thus fails.” – Per Oji, J.

 

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RESIGNATION – EFFECTIVE UPON RECEIPT – EMPLOYER’S ACCEPTANCE NOT A WAIVER OF RIGHT TO ENFORCE CONTRACT

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“I agree with the Claimant that the law is that resignation is effective upon receipt and the Defendant does not have the option whether to accept it or reject it. The NIC has held that an employee has an absolute/unfettered right to disengage from work, and there is no discretion on the part of the employer to refuse to accept the notice to resign… Thus, any attempt to stop an employee from disengaging by an employer would be interpreted as forced or compulsory labour… From the above, it is clear that the Claimant’s acceptance of the Defendant’s resignation does not affect the right of the Claimant in enforcing the contract against the Defendant.” – Per Oji, J.

 

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FORCED AND COMPULSORY LABOUR – REJECTION OF RESIGNATION BY EMPLOYER CONSTITUTES FORCED LABOUR – CONTRARY TO LABOUR ACT AND ILO CONVENTION NO. 29

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“Any attempt to stop an employee from disengaging by an employer would be interpreted as forced or compulsory labour. See Ineh Monday Mgbeti v. Unity Bank Plc (supra) and Dr (Mrs) Ebele Felix v. Nigerian Institute of Management unreported Suit No. NICN/LA/321/2014, the judgment of which was delivered on 4 July 2017. This is also in line with the spirit of section 73(1) of the Labour Act and the ILO Convention Concerning Forced or Compulsory Labour, 1930 (No. 29), a Convention ratified by Nigeria on 17 October 1960.” – Per Oji, J.

 

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BREACH OF NOTICE PERIOD BY EMPLOYEE – AWARD OF SALARY FOR UNSERVED NOTICE PERIOD – CREDIT GIVEN FOR PERIOD ALREADY SERVED

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“Relief (ii) is for An Order compelling the Defendant to pay the Claimant the sum of N 4,800,000 (Four Million, Eight Hundred Thousand Naira) as six (6) month’s salary in lieu of notice as contained in the Defendant’s contract of employment with the Claimant. Relief (i) having succeeded; this relief also succeeds. However, evidence shows that the Claimant gave notice of resignation in February, and only failed to stay till the end of her notice period. Her notice was given on 15th February, and she stopped work on 1st May. This means she had stayed two and a half months of her six months’ notice period; remaining three and a half months. The Defendant is ordered to pay the Claimant, the sum of #2,800,000.00 (Two Million Eight Hundred Thousand Naira) representing the remaining notice period.” – Per Oji, J.

 

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CLAIM FOR BONUS REFUND – MUST BE PROVED BY EVIDENCE – FAILURE TO LEAD EVIDENCE FATAL TO RELIEF

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“Relief (iii) is for An Order compelling the Defendant to return to the Claimant the sum of N666,666.00 (Six Hundred and Sixty-Six Thousand, Six Hundred and Sixty-Six Naira) paid to the Defendant being the pro-rated unearned performance bonus. The Claimant led no evidence to prove this relief. It therefore fails for lack of proof.” – Per Oji, J.

 

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ADMISSIBILITY OF COMPUTER-GENERATED DOCUMENTS – ORAL CERTIFICATION WHILE GIVING EVIDENCE SUFFICIENT – COURT EMPOWERED TO DEPART FROM STRICT APPLICATION OF SECTION 84 IN INTEREST OF JUSTICE

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“For all the documents objected to on the ground of non-certification in compliance with the Evidence Act, the records show that the DW, while tendering the documents stated that ‘the documents were stored in my computer that I use on a day-to-day basis and printed on my laptop’. It has been held that certification for the purposes of section 84 of the Evidence Act, can be made orally while giving evidence. See Dickson v. Sylva & Ors (2016) LPELR-41257 (SC). Howbeit if not so exhaustive, in the interest of justice, I invoke section 12 of the NICA, and depart from a strict application of section 84 of the Evidence Act, and admit the documents.” – Per Oji, J.

 

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OBJECTION TO DOCUMENTS TENDERED BY OPPONENT WHICH CLAIMANT ITSELF ALSO TENDERED – CANNOT BE SUSTAINED – DISTRACTION FROM MAIN ISSUES

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“With respect to exhibit D34 – D39, which the Claimant alleges were made in anticipation of this suit, I see that exhibit D34 is exactly exhibit C6. Exhibit D35 is exactly exhibit C7… In other words, the Claimant tendered all these documents earlier than the Defendant. I honestly do not understand the essence of this objection. This is, in my view, a distraction from the main issues before the Court. This Court, like all Courts of record, is empowered to do substantive justice and discourage the indulgence in technicalities. See Section 6(6)(a) of the 1999 Constitution.” – Per Oji, J.

 

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SANCTITY OF CONTRACT – PARTIES BOUND BY TERMS FREELY AGREED – EMPLOYEE CANNOT UNILATERALLY ADJUST NOTICE PERIOD

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“If parties to a contract are allowed to avoid their obligations, on the slightest annoyance or discomfiture, then, the sanctity of contract will be part of the ashes of history, in no time… The Defendant is bound to give the requisite notice as stated in her contract of employment; and not to adjust it unilaterally.” – Per Oji, J.

 

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CONSTRUCTIVE DISMISSAL – DEFINITION – RESIGNATION NOT TRULY VOLUNTARY WHERE EMPLOYER MAKES CONDITIONS INTOLERABLE – EFFECT IS AS IF TERMINATION

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“Globally, and in labour/employment law, constructive dismissal, also referred to as constructive discharge, occurs when an employee resigns because his/her employer’s behaviour has become intolerable or heinous or made life difficult that the employee has no choice but to resign. Given that the resignation was not truly voluntary, it is in effect a termination… In an alternative sense, constructive dismissal or constructive discharge is a situation where an employer creates such working conditions (or so changes the terms of employment) that the affected employee has little or no choice but to resign.” – Per Oji, J.

 

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COUNTER-CLAIM – INDEPENDENT ACTION – MUST BE SUPPORTED BY PLEADINGS AND EVIDENCE – FAILURE OF PRIMARY RELIEFS DEFEATS CONSEQUENTIAL RELIEFS

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“Relief (F) – AN ORDER compelling the counter-defendant to pay to the counter-claimant the sum of N8, 000, 000 (Eight Million Naira Only) Naira being payment for damages suffered by the claimant as a result of the counter-defendant’s actions. This relief fails due to the failure of reliefs A – E… The counter-claim fails in its entirety.” – Per Oji, J.

 

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RESIGNATION EFFECTIVE UPON RECEIPT – ABSOLUTE POWER TO RESIGN – NO DISCRETION IN EMPLOYER TO REFUSE

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“Resignation need not be formally accepted before it took effect. See Per Kalgo, J.S.C. in Yesufu v. Governor of Edo State & Ors (2001) LPELR-3526 (SC), (2001) 13 NWLR (Pt. 731) 517. A notice of resignation is effective, not from the date of the letter or from the date of the purported acceptance, but from the date the letter was received by the employer or his agent. See W.A.E.C. v. Oshionebo (2006) 12 NWLR (Pt. 994) 258. Resignation takes effect from the date notice is received by the employer or its agent. Resignation dates from the date notice was received. There is absolute power to resign and no discretion to refuse to accept notice.” – Per Oji, J.

 

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COSTS OF ACTION – SPECIAL DAMAGES – MUST BE SPECIFICALLY PLEADED AND PROVED – FAILURE TO LEAD EVIDENCE FATAL

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“In the same manner, the Claimant led no evidence in proof of relief (iv) for Cost of action assessed at N20,000,000.000 (Twenty Million Naira).” – Per Oji, J.

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended), Sections 6(6)(a), 36, 254C(6)

Labour Act Cap. L1

Laws of the Federation of Nigeria 2004, Section 73(1)

Evidence Act 2011, Sections 83(1), 83(2), 83(3), 83(4), 84, 167(d)

National Industrial Court Act 2006, Section 12

National Industrial Court (Civil Procedure) Rules 2017 Companies and Allied Matters Act 2020, Sections 244, 279

ILO Convention Concerning Forced or Compulsory Labour 1930 (No. 29) (Ratified by Nigeria on 17th October 1960

 

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OTHER CITATIONS

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Click Here To Read Full Judgement

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COUNSEL

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1. Olabisi Makanjuola with O. Ogunride for the Claimant
2. Olajide Salami for the Defendant