Case: Charlene C. Makai V. Nigerian Christian Pilgrim Commission[1]

Judge: Justice E. D. Subilim

Date: 28/11/2024

Main Issues of Law

  1. Constructive Dismissal
  1. Whether Notice or Salary in Lieu is Required in Cases of Constructive Dismissal
  1. Effect of Query or Termination After Constructive Dismissal
  1. Damages for Constructive Dismissal

Summary of Facts

The Claimant instituted an action claiming that her resignation was due to the Defendant’s breaches of the contract by, inter alia, placing her under the supervision of a junior officer, refusing to pay her allowance (ordinarily entitled to under the Public Service Rules) after her deployment to the South East, removing the South East Zonal Coordinator from office for granting her annual leave, and writing, in respect of her secondment as Special Assistant to a Senator in the National Assembly, that she was involved in financial misappropriation.

The Claimant resigned her appointment with the Defendant on April 22, 2024, and it was acknowledged on the same date. The Defendant purported to accept the resignation on April 26, 2024, and issued the Claimant a query on April 23, 2024.

The Defendant’s defense was that it was entitled to issue the query and that the Claimant wrongfully and disdainfully addressed her claims straight to the Executive Secretary without properly routing them through the established communication channels of the civil service. The Defendant also claimed the Claimant was under investigation for misappropriation due to her work with the former Executive Secretary, who was being investigated by the EFCC.

Court’s Decision

The court held that the Claimant’s resignation was justifiable in response to the series of repudiatory breaches committed by the Defendant in the manner she was treated before her resignation. These actions amounted to constructive dismissal.

The court noted that the Claimant had no choice but to act as she did, given that the Defendant and its Chief Executive appeared intent on disgracing her due to her association with the former Chief Executive. The court concluded that the query issued after the Claimant’s resignation was null and void and awarded ₦5,000,000 (Five Million Naira) in damages for constructive dismissal.

Legal Principles Relied On

  1. Constructive Dismissal

Constructive dismissal arises when an employer creates such intolerable working conditions or alters the terms of employment so significantly that the employee is compelled to resign. This is viewed as an attempt to force resignation rather than outright dismissal.

  1. Notice or Salary in Lieu in Cases of Constructive Dismissal

Where an employee resigns due to the employer’s conduct, the employee may or may not give notice, provided the conduct is sufficiently serious to justify immediate departure.

  1. Effect of Query or Termination After Constructive Dismissal

A notice of resignation is effective from the date the letter is received by the employer, not the date of issuance or acceptance. An employee cannot be dismissed from employment that has already ceased to exist.

  1. Damages for Constructive Dismissal

Section 19(d) of the NICA empowers the court to award substantial damages in deserving cases.

Notable Pronouncements

Employers must refrain from using oppressive tactics or engaging in witch-hunting against employees. No employer is permitted to destroy the name, career, and reputation of an employee due to disagreements with a former employer or associate. The conduct of the Defendant in this case, which necessitated the Claimant’s resignation, amounts to an unfair labor practice. The court, exercising its jurisdiction, will not allow such conduct to stand.

Commentary

This case is a textbook example of constructive dismissal and serves as a reminder to employers to act fairly in their dealings with employees. The facts reveal a calculated attempt to force the Claimant out of employment on flimsy grounds, including the peculiar claim that her immediate boss was under investigation by the EFCC.

A commendable aspect of this case is its expedited resolution. It is noteworthy that the case, initiated on May 23, 2024, was concluded within six months, with trial commencing in June 2024. This swift resolution reflects the ideal efficiency expected of labor courts.

However, the judgment’s extensive reliance on international best practices (IBP) and references to the ILO Convention 58, among other sources, appears unnecessary. The Supreme Court recognized the concept of constructive dismissal in cases such as Ilodibia v. Nigeria Cement Co Ltd[2] and CBN & Anor v. Aribo[3].  The reliance on IBP—without the parties’ invitation—leads to uncertainty in labour law. The NICN should exercise caution in invoking unratified IBP in decisions, given its unique position as a specialized court. Precedents based on unratified IBP should be reserved for well-established and proven cases to avoid the confusion evident in areas like termination without reason.

Elvis E. Asia is the Managing Partner of Law Future Partners and a PartneratBols Attorneys, Nigeria. He has an LLB, Ambrose Alli University; and LLM from the University of Lagos. He is a member of the Chartered Institute of Arbitrators, United Kingdom, Institute of Chartered Secretaries and Administrators of Nigeria and the Chartered Institute of Taxation of Nigeria. Elvis is the author of the book ‘Oil and Gas Insurance and Nigeria’s Local Content Policy’

Footnotes

[1] SUIT NO:  NICN/ABJ/136/2024. Available online at https://nicnadr.gov.ng/judgement/judgement.php?id=9394

[2] [1997] LPELR-1494(SC)1@18-20, Para C

[3] [2017] LPELR-47932(SC)