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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA DATE: JULY 22, 2020 SUIT NO. NICN/ABJ/280/2018 BETWEEN Lucia Balonwu - Claimant AND Voluntary Service Overseas (VSO) International - Defendant REPRESENTATION Augustine Udechukwu, for the claimant. Bola Olotu, with Messrs Chinenye Aneke and Miss Adesola Ajayi, for the defendant. JUDGMENT 1. The claimant took out this action vide a complaint filed on 25th October 2018 together with the accompanying originating processes. In reaction, the defendant filed its defence processes. To this, the claimant filed her reply to the statement of defence accompanied with an updated list of documents to be relied upon and copies of the said documents. However, the claimant’s reply to the defendant’s statement of defence was not supported by any witness statement on oath or claimant’s additional witness statement on oath. The reply is accordingly without any supporting deposition. By her statement of facts, the claimant is praying for the following reliefs against the defendant: (1) A declaration of this Honourable Court that the actions and inactions of the defendant had a material and adverse effect on the claimant’s working conditions, such that she could not reasonably be expected to continue in the said employment. (2) A declaration of this Honourable Court that in the light of the prevailing hostile and humiliating work environment that gave rise to the claimant’s purported resignation, the said resignation was tantamount to a “Constructive Dismissal” by the defendant, and an unlawful one at that. (3) An order of this Honourable Court directing the defendant to pay the claimant a compensation for unlawful dismissal in the sum of N325,000,000 (Three Hundred and Twenty-Five Million Naira only) representing the amount (including benefits and allowances) which the claimant would have earned under the contract of employment for the next 13 years, but for the unlawful dismissal. (4) The sum of N500,000,000 (Five Hundred Million Naira only) to the claimant as aggravated and exemplary damages against the defendant for “humiliating, degrading and belittling” the claimant in the eyes of her subordinates, peers and superiors across over 23 countries in brazen disregard of its own Global Code of Conduct. (5) The sum of N2,000,000 (Two Million Naira only) as cost of this action. (6) Any such order or further orders as this Honourable Court may deem fit to make in the circumstance. 2. At the trial, the claimant testified on her own behalf as CW and tendered Exhibits C1, C2, C2(a), C3, C4, C4(a), C5, C6, C7, C8 and C9. For the defendant, Patrick Procter, Director of Operations of the defendant, testified as DW and tendered Exhibits D1, D2, D2(a), D3, D3(a), D4, D4(a), D5, D6, D7, D7(a), D8, D8(a), D9, D10, D10(a), D11, D12, D13, D14, D15, D15(a), D16 and D16(a). The defendant’s final written address was filed on 26th February 2020, while the claimant’s was filed on 9th June 2020. The defendant’s reply on points of law was filed on 29th June 2020. THE CASE OF THE CLAIMANT 3. The claimant’s case is that she was the Country Director in charge of the Nigeria Country office of the defendant from August 2016 to October 2018, and as Country Director it was within the scope of her responsibilities to ensure compliance with acceptable work ethics and the maintenance of discipline within the Nigeria Country office of the defendant, including escalating complaints in appropriate cases to her own line manager at the international level and other international staff who were empaneled to provide support for various country offices of the defendant at the regional level. The claimant alleged that having unsuccessfully tried several times to manage the many incidents of absenteeism, tardiness, and dereliction of duty of Ms Olayinka Omojokun, the People and Operation Manager (POM) and the claimant’s subordinate in the Nigeria country office, the claimant had cause to escalate same to her own line manager, the Global Operations Director (i.e. Mr Patrick Proctor) and to Nairobi-based Regional People Manager i.e. Esther Ndungu. The claimant alleged that neither the Operations Director nor the Regional People Manager responded to the said escalation. That the non-response of the Operations Director and the Regional People Manager emboldened Ms Olayinka Omojokun (POM) to continue her absenteeism and driven by a thirst for revenge, Ms Olayinka Omojokun (POM) filed a malicious petition against the claimant alleging “bullying and unfair treatment” and sent the petition to the said Operations Director (Mr Patrick Proctor) and the Regional People Manager (Esther Ndungu). That the Regional People Manager (Esther Ndungu) informed her of the pendency of the petition against her and stated that due to the receipt of the petition, they could no longer act, at the moment, on the claimant’s previous complaints of absenteeism, tardiness and dereliction of duty on the part of Ms Olayinka Omojokun (POM). That subsequently, her (claimant) line manager i.e. Operations Director (Patrick Proctor) became noticeably hostile towards her in a manner suggesting that he had already adjudged her guilty of the contents of the petition. That Ms Irene Oggawa, a Nairobi-based staff who is junior to her (claimant) by organizational ranking was assigned to act as the investigator in the matter of the said petition. 4. The claimant alleged that she submitted herself to the process of investigation despite the humiliation of being interrogated by her junior and the injustice of setting aside her initial complaints against the POM in favour of the POM’s subsequent petition. That she (claimant) submitted a written response to the malicious allegations of the POM against her. She (claimant) alleged that she was not informed of the outcome of the investigation, but rather notified following the investigation that she would be subjected to a “Performance Review”. She (claimant) escalated the unjust handling of the process to her line manager’s superior, Ms Donne Cameron, the Executive Director for programs (ED) who made no effort to review the said investigation process and thereby allowed the Operations Director (Mr Patrick Proctor) to continue to preside over the process. 5. She averred that the investigation report cleared her of the allegations made against her by the People Operations Manager (Ms Olayinka Omojokun). She alleged that having been cleared of the allegations of the POM (Ms Olayinka Omojokun) it then behooved on the organization to take deterrent disciplinary action against the POM for the malicious allegations contained in the petition against her (claimant). That the management of VSO International failed, refused and neglected to take any disciplinary action against the POM for her documented allegations which were very serious and of a nature capable of damaging one’s career in international development. The organization (VSO International) also did nothing to address her (claimant’s) complaints of absenteeism, tardiness and dereliction of duty against the POM. The claimant alleged that the situation subjected her to severe psychological trauma and not being able to rein in the POM, she lost the moral authority to demand compliance with workplace policies from other country office staff and was subjected to various subtle acts of insubordination across the office on a daily basis. 6. The claimant alleged that she then informed the OD that she could not function in an organization that cannot guarantee justice in its processes whilst also ensuring a conducive work environment for all its staff. The claimant alleged that at that point “it was clear beyond a doubt that her time with VSO International was over, but she decided that it would be wrong to resign at a time when the country office was expecting an audit team from the Headquarters in about a fortnight, so she decided to delay her resignation till after the audit”. 7. The claimant alleged that during her tenure as Country Director, the finance unit/department of the Nigeria country office did witness a high level of turnover of staff, thus the Regional Finance Manager (RFM) of VSO International, Ms Nancy Oseko, arrived Nigeria on an official visit to the country office on 14th May 2018. The claimant alleged that in furtherance of a seeming conspiracy to humiliate and belittle her and to undermine her authority in the country office which she headed the visiting RFM showed contempt for her (claimant) office as Country Director by making unilateral decisions bordering on the designation, placement and announcement of a new finance staff within the hierarchy of the Country Office without recourse to her, thus putting her in difficult position and gave staff the impression that decisions about them were made from the Regional office or the Headquarters, and the country Director had no say. 8. The claimant alleged that the books of the Nigeria country office were audited from 25th to 29th June 2018 and that she (claimant) and her team had begun working on the recommendations/advice offered by the audit team on some of the issues. The claimant alleged that on July 10th, 2018 she received a contrived audit report from Marilyn Acker, VSO’s Head of Risk and Internal Audit, which contained innuendos, half-truths and deliberate misrepresentations and purported issues that had never been discussed with the country office. 9. The claimant alleged that on 11th July 2018 she sent in her resignation as the Country Director of the Nigeria country office of VSO International providing the organization’s mandated 3 months’ notice culminating on 10th October 2018. The claimant alleged that during her notice period, VSO continued to humiliate her by informing colleagues across the organization that she had resigned because of audit findings thereby insinuating that she had been engaged in fraudulent activities and the organization continued in her humiliation by instituting follow on processes that are standard in relation to situations of fraud. The claimant alleged that following VSO’s communication, international colleagues began to relate with her with caution insinuating in official meetings that she needed to be guided on proper finance procurement processes. That the Executive Director Programmes further directed members of the Nigeria staff not to make any contact with her. The claimant alleged that following these intolerable actions which further served to deny her an enabling environment to serve out her 3 months’ notice she proceeded to hand over to the organization’s Head of Programmes in the country office. The claimant alleged that besides the humiliating and degrading treatment she endured following the issue of the POM’s conduct, VSO International had through other acts and omissions, demonstrated its unwillingness to make the effective discharge of her duties as Country Director possible. THE CASE OF THE DEFENDANT 10. In denying the claimant’s allegations and averments, the defendant alleged that the claimant was the Country Director in charge of the Nigeria country office of Voluntary Service Overseas from 1st August 2016 to 29th July 2018 when she voluntarily and on her own handed over to the organization’s (i.e. Voluntary Service Overseas) Head of Programmes in the country office without any prior notice to that effect, thereby unceremoniously abdicated her office, duties and responsibilities, to the surprise and dismay of the organization. That it was within the scope of the claimant’s responsibilities as the Country Director to ensure compliance with acceptable work ethics and the maintenance of discipline within the Nigeria Country Office of Voluntary Service Overseas. That the claimant was Ms Olayinka Omojokun’s (POM) line manager and it was her (claimant) responsibility to manage her, and follow the organization’s performance and disciplinary process. That Ms Olayinka Omojokun (POM) lodged a complaint of bullying and unfair treatment against the claimant who was informed of same and that full investigation would be appropriate in the circumstance. That the claimant never raised any objection, complaint or dissatisfaction as to the discussion and propriety of the need for full investigation. That the claimant’s line manager (Mr Patrick Proctor) had no reason to and was never hostile to the claimant nor adjudged the claimant as guilty. That Ms Irene Oggawa was assigned as the investigator based on her experience and neutrality, and her role was to establish the correct facts, referring to Exhibits D4 and D6. That the claimant did not complain to her line manager or any other senior colleague on the choice of Ms Irene Oggawa as the investigator. That the claimant who submitted herself voluntarily to the process of investigation was not humiliated or exposed to any injustice as she was given every opportunity i.e. written, oral and Skype interview to express herself without any inhibition or restriction on all the issues relating to herself and Ms Olayinka Omojokun, referring to Exhibits D4(a), D8 and D8(a). That the investigation report was shared with the claimant who was not asked to set aside her initial complaints. That the investigation report did not substantiate the allegations against the claimants but revealed that the claimant did not take up her responsibility as a line manager to ensure that she performance managed in line with the organization’s policies and procedure as expected of her as the Country Director, hence the need for the performance review processes. That there was no evidence or reason to believe the POM (Ms Olayinka Omojokun) raised her concerns in bad faith or maliciously against the claimant. That all issue(s) of concern raised by the claimant as relating to Ms Olayinka Omojokun were discussed and dealt with appropriately. That the claimant was not restrained or restricted in any way whatsoever from her responsibility, duty and authority to line manager Ms Olayinka Omojokun (POM) and/or any of all of the other staff in the Nigeria Country Office which she headed. 11. That the audit of the Nigeria Country Office of Voluntary Service Overseas from 25th to 29th June 2018 was an internal audit to ensure compliance with established polices and procedures and recommend changes if required amongst others. That the claimant whose duty and responsibility as the Country Director of the Nigeria Country Office is to line manager all the staff of the Nigeria Country Office was given every support and authority she needed as the Country Director. That the audit report received on 10th July 2018 by the claimant from Marilyn Acker, Head of Risk and Internal Audit of Voluntary Service Overseas was factual, not contrived, did not contain any innuendos, any half truths and misrepresentations or any issues that had never been discussed with the Country Office. That the claimant was never humiliated neither was any member of the Nigeria staff or any staff at all directed not to make contact with the claimant at all material times. 12. To the defendant, the claimant voluntarily handed over to the organization’s Head of Programmes in the Country Office and she (claimant) was treated fairly and accorded all due respect and support at all times including during her 3 months’ notice resignation period, referring to Exhibit D15. That the claimant’s decision to resign was entirely her own as the organization (Voluntary Service Overseas) did not create any intolerable working conditions or actions, referring to Exhibit D10. That the claimant did not at any material time share her career plan or intention to work for 15 years with the organization. That no intolerable working condition(s) was foisted upon the claimant by the management of Voluntary Service Overseas and at no point was the claimant’s authority undermined. That the claimant held the position of Country Director throughout her stay in Voluntary Service Overseas. 13. That Voluntary Service Overseas who provides and ensures conducive working environment to all its staff, also has well outlined policies and robust procedures for managing grievances and conducting investigations without degrading, humiliating or disrespecting any staff, more so in the calibre of a Country Director that the claimant was, referring to Exhibits D3, D3(a), D12, D14. That no employee or Nigerian staff of the organization (Voluntary Service Overseas) has ever raised any concern of humiliation, degradation, disrespect, maltreatment, being demeaned or subjugated in anyway against the management of the organization and neither has the claimant who was the Country Director of the Nigeria Country Office ever raised any such and or ever notified the management of any such concern or complaint by any Nigerian staff or employee of the organization. That the organization and/or its management did not dismiss the claimant or forced her to resign under any condition or lodged any complaint against her. That the claimant who voluntarily and on her own sent in her resignation further proceeded to unceremoniously before her 3 months expiration handed over to the Head of Programmes in the Nigeria Country Office of the organization i.e. Voluntary Service Overseas. That no damage whatsoever was done to the reputation of the claimant in anyway by the organization i.e. Voluntary Service Overseas. That the claimant’s entire reliefs/claims are denied and they should be dismissed, and substantial cost awarded against the claimant. THE SUBMISSIONS OF THE DEFENDANT 14. The defendant submitted a sole issue for determination: whether in the circumstances of this case, the totality of evidence led and the settled principles of law the claimant is entitled to the grant of her claims/reliefs by this Honourable Court. To the defendant, from the declarations sought by the claimants as claims/reliefs (1) and (2) in her statement of facts vis-à-vis her testimony in her witness statement of oath, it is obvious that the claimant’s action is in the main founded and premised on constructive dismissal. That the principles of law guiding the success or otherwise of an action in constructive dismissal as well as the success or otherwise of the entire claims/reliefs of the claimant before this Court are well settled by judicial authorities and pronouncements. 15. That the claimant’s claims (1) and (2) are for declarations, thus declaratory reliefs. And it is settled law that the burden of proof is on the person who asserts and who wants judgment in his/her favour, citing Texaco Nigeria Plc v. Kehinde [2002] FWLR (Pt. 94) 143 and sections 131 and 132 of the Evidence Act 2011. That it is also settled law sir that declaratory orders/reliefs are not granted on mere admission of the other party or default of defence. In other words, a party who seeks from a court declaratory reliefs must per force prove his/her case even if the other party admits or does not call any evidence in opposition, citing Jikantoro v. Dantoro [2004] All FWLR (Pt. 216) 390 and Songhai Limited v. UBA [2004] FWLR (Pt. 189) 1244. That a claimant/plaintiff must succeed on the strength of his/her case and not on the weakness of the defendant’s case, citing Erinfolami v. Oso [2013] All FWLR (Pt. 673) 1991 at 2001 and 2002, Alkali Edu. Consulting v. Yobe State Govt [2012] All FWLR (Pt. 627) 780. Nigerian Westminster Dredging and Marine Ltd v. Chief Tunde Smooth [2013] All FWLR (Pt. 664) 87, Onyero v. Nwadike [2012] All FWLR (Pt. 624) 1.and Onyia v. Onyia [2012] All FWLR (Pt. 616) 573. That from these principles of law and decided authorities, the burden of proof in this case, to wit, the declarations sought, is on the claimant who must succeed on the strength of her case and not on the weakness of the defendant’s case or admission of the declarations sought. 16. That the claimant’s case in seeking these declarations in her claims (1) and (2) is premised/founded on constructive dismissal alleging “that the actions and inactions of the defendant had a material and adverse effect on the claimant’s working conditions, such that she could not reasonably be expected to continue in the said employment”; thus the said resignation was tantamount to a “constructive Dismissal” by the defendant, and an unlawful one. To the defendant, upon a careful reading of the claimant’s statement of facts and her witness statement on oath, the allegations of the claimant against the defendant can be summarized, categorized and or compartmentalized into four incidences and or occurrences to wit: (i) the issue(s) of complaint, petition and investigation bordering on Ms Olayinka Omojokun (POM) in the Nigeria Country Office of Voluntary Service Overseas where the claimant was the Country Director, the most senior official/staff; (ii) the issue bordering on Ms Nancy Oseko, the Regional Finance Manager’s (RFM) official visit to the Country Office of Voluntary Service Overseas on 14th May 2018; (iii) the audit report from Marilyn Acker, Voluntary Service Overseas Head of Risk and Internal Audit; and (iv) the allegation of her employer informing colleagues across the organization that she (claimant) resigned because of audit findings thereby insinuating that she (claimant) had been engaged in fraudulent activities. 17. The defendant then submitted that of all these four incidences and/or occurrences, only 2 were made issues of the moment and relevance regarding the claimant’s resignation as can be deduced from the claimant’s resignation letter of 11th July 2018 i.e. Exhibit C5 where in paragraph 3 the claimant stated: This resignation would have come a month earlier when I discovered that accusations both formal and supposedly-anonymous’ are equivalent to facts at VSO. I trusted the system and submitted myself to investigations that proved allegations from the relevant staff were false and to my dismay, our systems offer no back end provision for redress to deter such acts of mischief. I however chose to trust the system again and it is with great disappointment that I have now received an audit report evidencing a totally unprofessional audit process tainted with bias and ill will. My very being and background as a lawyer recoils at the lack of transparency that I have witnessed. 18. That from this paragraph 3 of Exhibit C5 (the claimant’s resignation letter), the issue of Ms Olayinka Omojokun (POM), particularly that the organization’s systems offer no back end provision for redress to deter such acts of mischief i.e. false allegations from the relevant staff, and the audit report evidencing a totally unprofessional audit process tainted with bias and ill will were the fulcrum and foundation of the claimant’s resignation, which she wants this Court to declare as being tantamount to a constructive dismissal by the defendant, and an unlawful one at that. While the actions and inactions of the defendant that made her (claimant) not to continue in the said employment till the expiration of her 3 months’ notice were thus: • VSO informed her colleagues across the organization that she had resigned because of audit findings thereby insinuating that she had been engaged in fraudulent activities; • the organization instituting follow-on processes that are standard in relation to situations of fraud; • international colleagues beginning to relate with her with caution insinuating in official meetings that she needed to be guided on proper finance procurement processes; and • the Executive Director Programmes further directing members of the Nigeria staff not to make any contact with her. 19. To the defendant, the position of the law on the principle of constructive dismissal is not far fetched and the simple question here is whether the claimant by her resignation in the light of the said reason(s) in paragraph 3 of her letter of resignation tendered on 11th July 2018 and her reason(s) for voluntarily leaving her employment on 29th July 2018 before the expiration of her 3 months notice, has made out a case for constructive dismissal. That the Encyclopedia of Forms and Precedents, 5th Edition,Volume 14 at Page 199 - paragraph 109.4 clause 594 states that: Constructive dismissal is a term used for the situation where the employee terminates the contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct. It is now clear that the employer’s conduct referred to must amount to a breach of the contract of employment; the mere fact that the employer has acted unreasonably is not sufficient. The breach may be actual or anticipatory and it may comprise a minor breach which together with earlier breaches entitles the employee to treat it as ‘the last straw’. It must, however, be serious enough in the circumstances to entitle the employee to leave without notice. If the tribunal is not satisfied that the employee’s departure was caused by the breach, or if the employee stays too long after the breach he will be treated as having resigned and not having been constructively dismissed (emphasis is the defendant’s). The defendant then referred to Western Excavation (ECC) Ltd v. Sharp [1978] QB 761; [1978] 1 All ER 713. 20. The defendant went on that N. M. Selwyn in Selwyn’s Law of Employment, 13th Edition, published by Lexis Nexis (Butterworths) U.K, expounding the principle of constructive dismissal further stated as follows at page 383, paragraph 17.35: “The employee must clearly indicate that he is treating the contract as having been repudiated by the employer (Logabax Ltd Vs Titherley), and if he fails to do so, by word or by conduct, he is not entitled to claim that he has been constructively dismissed (Holland Vs. Glendale Industries Ltd)”. And in paragraph 17.36 at page 384: “The test for constructive dismissal was to be determined by the contract test i.e. did the employer’s conduct amount to a breach of contract which entitled the employee to resign?” And at page 384 in paragraph 17.37: “It follows, therefore that only those cases where the employer’s conduct amounts to a significant breach, going to the root of the contract, can now be regarded as being authoritative. There must be a breach of contract by the employer, not merely a failure to act reasonably (Wadham Stringer Commercials (London) Ltd Vs. Brown)”. The defendant then referred to Joseph Okafor v. Nigerian Aviation Handling Company Plc (unreported) Suit No. NICN/LA/291/2016, Logabax Ltd v. Titherley [1977] ICR 369, Holland v. Glendale Ind. Ltd [1998] ICR 493 and Wadham Stringer Com. (London) Ltd v. Brown [1983] IRLR 46. That flowing from all these authorities, the claimant has not made a case for constructive dismissal to warrant the success or grant of the declarations sought in her claims/reliefs (1) and (2) considering the reason(s), event(s), issue(s), incidence(s) and occurrence(s) of her resignation and failure to wait till the end of her 3 months’ notice; thus her voluntarily exit on 29th July 2018. 21. The defendant continued that a careful dissect and proper digest of the paragraph 3 of the claimant’s 11th July 2018 resignation letter (Exhibit C5) wherein contained the alleged reason(s), incidence(s) and or occurrence(s) for the resignation will reveal that none was the breach of the contract of employment of the claimant or goes to the root of the claimant’s contract of employment. And they are contrary to the claimant’s averment in paragraph 22 of the statement of facts and paragraph 23 of the witness statement on oath to resign after the audit which ended on 29th June 2018. 22. And further more, that the assumption, understanding and interpretation of the claimant of those incidences and or occurrences are also not true and/or correct as alleged and reflected by the claimant. That if accusations both formal and supposedly ‘anonymous’ are equivalent to facts at VSO as alleged, interpreted and assumed by the claimant is correct, then the claimant would have just been quarried or sanctioned without any investigation and or the investigation report would have indicted the claimant; but that was not the case. That the investigation report made it clear that the allegations against her (claimant) were not substantiated. That the claimant under cross-examination said she was “very familiar with all the policies of VSO.” And in paragraph 5 of her letter of resignation (Exhibit C5) she also said “I have upheld all VSO policies and procedures.” To the defendant, the claimant’s dismay that her organization’s systems offer no back end provision for redress to deter such acts of mischief cannot be any justification for her resignation to be treated as constructive dismissal since the claimant who is very familiar with the policies of VSO knew that, or at least should have known that, referring to Global Disciplinary Policy (Exhibit D12) at page 3 last paragraph and guide to conducting investigation (Exhibit D14) at page 7 step six therein and page 7 last paragraph. That the claimant still continued to trust the same system and refused to resign after the 29th June 2018 audit but continued to work with her team on the issues raised by the auditors. 23. The defendant proceeded that that the audit report received by the claimant evidenced “a totally unprofessional audit process tainted with bias and ill will” can also not be the basis for this Court to treat the claimant’s resignation as constructive dismissal in that the claimant has not tendered the said audit report or any audit report before this Court; the claimant has not stated what is the totally unprofessional audit process and the bias and or ill will contained therein. In fact, that the claimant in her resignation email of 11th July 2018 even praised and thanked her Line Manager, Mr Patrick Proctor, referring to Exhibit D10. And in her letter of resignation (Exhibit C5) she thanked her organization for the opportunity given her. To the defendant, in the absence of the said audit report received by the claimant being tendered before this Court, the Court cannot speculate or assume on behalf of the claimant, urging the Court to so hold; and referring to Ranston Properties Ltd v. FBN Plc [2007] All FWLR (Pt. 392) 1954 at 1973, which held thus: “The court is not to speculate on that which is not placed before it.” 24. On the allegation(s) which made the claimant to voluntarily exit on 29th July 2018, before the expiration of her 3 months’ notice, the defendant submitted that the claimant under cross-examination said that she was never queried, interdicted or suspended at any time for any reason; that there is no mail or document to the effect that she resigned because of the audit report; no evidence whatsoever of the name of any of her colleagues who related with her with caution; the claimant still attended official meetings in her capacity and position as Country Director; and there is no issue of breach of her contract of employment by virtue of any alleged policy or follow-on process allegedly put in place by her employer. To the defendant, therefore, there is no iota of evidence to support these allegations that led to the claimant’s voluntary exit on 29th July 2018. Accordingly, that the said allegations were just the imaginations of the claimant and not any action of her employer and organization, urging the Court to so hold. 25. The defendant went on that the email (Exhibit C7) from the Executive Director Programmes to the Nigeria staff cautioning them about the claimant was written on 30th July 2018 after the claimant had voluntarily exited and handed over to the organization’s head of programmes in the Nigeria Country Office on 29th July 2018. Thus, the said email of 30th July 2018 which was in reaction to the claimant’s email communicating her voluntarily exit on 29th July 2018 and hand over to the Head of Programmes, cannot amount to any humiliation and or reason for her exit on 29th July 2018. Moreover, that the claimant already voluntarily exited and handed over on 29th July 2018 before the Executive Director Programme’s 30th July 2018 email of encouragement and caution to the staff of the Nigeria Country Office on the development and sudden exit of the claimant who unprofessionally and in breach of the organization’s policy sent her 29th July 2018 email to all the staff of the organization across board. That a careful reading of the said 30th July 2018 email will reveal that it was in response to the claimant’s 29th July 2018 voluntary exit and it was not an absolute directive to members of the Nigeria staff not to make any contract with the claimant but rather a qualified directive i.e. “for now”, referring to Exhibit C7. Accordingly, that the claimant’s voluntarily exit and handover on 29th July 2018 does not amount to constructive dismissal in anyway or by any stretch of imagination, urging the Court to so hold. 26. The defendant then submitted that in view of the foregoing argument, the Court ought to refuse the claimant’s declarations as sought in her claims/reliefs (1) and (2), and dismiss them accordingly. And that once the claimant’s reliefs (1) and (2) are refused and dismissed, the other reliefs/claims (3) to (6), which are founded on the declarations sought, ought also to be refused and dismissed by the Court, their foundation being the declarations sought having failed and collapsed; urging the Court to so hold and to consequentially dismiss the remaining of the claimant’s claims/reliefs, and thus the entire of this suit. 27. The defendant continued that even if the declarations sought by the claimant are granted by this Court, the remaining of her claims/reliefs (3), (4), (5) and (6) as couched should still not be granted by this Court considering the established and settled principles of law relating to and guiding the meaning and effect of constructive dismissal; the remedy and damages applicable in successful constructive dismissal cases. 28. The claimant’s claim/relief (3) is for “An order of this Honourable Court directing the defendant to pay the claimant a compensation for unlawful dismissal in the sum of N325,000,000 (Three Hundred and Twenty-Five Million Naira only) representing the amount (including benefits and allowances) which the claimant would have earned under the contract of employment for the next 13 years, but for the unlawful dismissal”. To the defendant, it is settled law that parties are bound by their claims before the court. And no court can or should make a case for a party. Also a court does not have the power to grant to a party a relief/claim not sought, citing UTC v. Nwokoruku [1993] 3 NWLR (Pt. 281) 295 at 308, Ajayi v. Texaco Nigeria Ltd & ors [1987] 3 NWLR (Pt. 62) 577; [1987] 9 - 10 SCNJ 19, Imolome v. WAEC [1992] 9 NWLR (Pt. 265) 303 at 321, Ebosie v. Ebosie [1976] 7 SC 113, Ushae v. COP Cross River State Command [2006] All FWLR (Pt. 313) 86 and Multibras S/A Electro-Domesticos v. PZ Co. Plc (UK) [2006] All FWLR (Pt. 326) 365. 29. The defendant went on that a careful reading of the claimant’s claim/relief (3) will reveal that it is for a compensation of N325 Million premised on unlawful dismissal representing the amount (including benefits and allowances) the claimant would have earned under the contract of employment for the next 13 years but for the unlawful dismissal. That the law makes and recognizes a difference and distinction between unlawful dismissal/termination and wrongful dismissal/termination. That the remedy for unlawful dismissal/termination is different from the remedy for wrongful dismissal/termination. That damages and/or compensation for breach of contract, more so breach of contract of employment be it unlawful dismissal or wrongful dismissal cannot be speculative or anticipatory of the number of years the employee would have spent or intended to spend in the employment. Also, that the compensation and/or damages by way of benefits and allowances are special damages that need to be specifically pleaded and proved before a court of law can grant them, citing UTC v. Nwokoruku [1993] 3 NWLR (Pt. 281) 295 at 309, which upheld the distinction between wrongful dismissal/termination (which yields to only damages) and unlawful dismissal/termination (which yields to reinstatement). 30. To the defendant, the claimant’s contract of employment with the defendant, having not been one with statutory flavour, the issue of unlawful dismissal as claimed by the claimant does not and cannot arise. Thus, the claimant wanting compensation for her “unlawful dismissal” cannot be granted, her (claimant) employment having no statutory flavour and the remedy for “unlawful dismissal” being reinstatement in that if a dismissal is unlawful, then there was no dismissal at all to warrant compensation as sought by the claimant. That the claimant is bound by her claims/reliefs before the Court. 31. The defendant continued that the claimant in her claim/relief (3) also stated categorically what the N325 Million compensation for unlawful dismissal entails to wit “representing the amount (including benefits and allowances) which the claimant would have earned under the contract of employment for the next 13 years, but for the unlawful dismissal”. That a perusal of the claimant’s statement of facts together with her witness statement on oath and her reply to the defendant’s statement of defence, which said reply is not supported by any witness statement on oath, will reveal that no mention was made at all of any benefits and allowances or any entitlement(s) at all, much less any amount stated as being the benefit(s), allowance(s) and/or entitlement(s) of the claimant. Consequently, there is no pleading whatsoever or evidence whatsoever to justify this claim/relief (3) for N325 Million representing the amount (including benefits and allowances). That this Court cannot speculate on benefits and allowances which are neither pleaded nor supported by any testimony or evidence of the claimant before this Court, urging the Court to so hold and to dismiss the claim; and citing Ranston Properties Ltd v. FBN Plc (supra). 32. The defendant went on that assuming but without conceding that the claimant succeeds on her reliefs/claims (1) and (2) and her resignation of 11th July 2018 and or her voluntary decision to exit on 29th July 2018 is treated as constructive dismissal, the implication will be that she was wrongfully terminated by her employer. As such, the compensation or damages that a wrongfully terminated employee is entitled to is the amount in lieu of the notice that the employee should have been given. That in this case, the claimant on her own already gave her 3 months’ resignation notice to her organization which said notice was to expire on 10th October 2018. Consequently, the period left for the claimant to have continued work with her organization before she was now constructively dismissed, assuming her case for constructive dismissal is proved, was from 29th July 2018 to 10th October 2018, a period of approximately 2 months and 2 weeks. Accordingly, the compensation or damages that the claimant can and should be entitled to in the circumstance of this case, assuming her 11th July 2018 resignation and/or 29th July 2018 voluntary exit is deemed or treated as constructive dismissal, is payment i.e. her salary for 2 months and 2 weeks in lieu of notice for the residual of her resignation period. 33. However, that since the defendant’s position is that the claimant has not made out a case for constructive dismissal, the Court should so hold and dismiss claimant’s claim/relief (3), which is actually for compensation for unlawful dismissal (not wrongful dismissal) in the sum of N325 Million representing the amount including benefits and allowances which are not pleaded nor supported by any evidence before the Court; more so, when the defence witness under cross-examination stated categorically that the claimant was not entitled to any benefits and the claimant did not state the specific benefits and allowances she was entitled to that make up the said sum of N325 Million. The defendant then urged the Court to so hold and dismiss this claim/relief, referring to Co-operative & Commerce Bank v. Okonkwo [2002] FWLR (Pt. 97) 637 at 652, NAB Ltd v. Shuaibu [1991] 4 NWLR (Pt. 186) 450 at 471, UTC v.. Nwokoruku [1993] 3 NWLR (Pt. 281) 295, Osisanya v. Afribank Nig Plc [2007] All FWLR (Pt. 360) 1480 and Obo v. Comm. of Edu. Bendel State [1993] 2 NWLR (Pt. 273) 46. 34. The claimant’s claim/relief (4) is for the sum of 500,000,000.00 (Five Hundred Million Naira only) to the claimant as aggravated and exemplary damages against the defendant for “humiliating, degrading and belittling” the claimant in the eyes of her subordinates, peers and superiors across over 23 countries in brazen disregard of its own Global Code of Conduct. To the defendant, it is settled law that aggravated and exemplary damages are known, applied and recoverable in tort but not in contract, more so in a contract of employment, citing Addis v. Gramophone Company [1909] AC 488 at 495 where the plaintiff there had been dismissed in a harsh and humiliating manner, and it was held that the manner of the dismissal could in no way affect the damages. Also referred to is Mayne and McGregor on Damages Twelfth Edition page 199 paragraph 211 where the learned authors and authorities on damages submitted that exemplary damages is not recoverable in contract except in anomalous case of breach of promise of marriage. And at page 527 paragraph 613 where the learned authors submitted that: (b) Injury to feelings and reputation; loss of publicity:- One head of damage has however received a good deal of consideration, that of injury to the plaintiff’s feelings or reputation stemming from the dismissal. In the leading case of Addis v. Gramophone Company the House of Lords decisively rejected such a claim. The plaintiff there had been dismissed in a harsh and humiliating manner, and it was held that the manner of the dismissal could in no way affect the damages. Two reasons are telescoped in the speeches in coming to this conclusion, first that exemplary or vindictive damages cannot be awarded for breach of contract and secondly that injury to feelings is not a head of damage recoverable in, or an interest protected by contract. The defendant then urged the Court to be fully persuaded by these authorities and to so hold in this case and dismiss this claim. 35. The defendant continued that N500 Million aggravated and exemplary damages claimed is against the defendant for “humiliating, degrading and belittling” the claimant in the eyes of some other people. That the said claim having been premised on the humiliation, degradation and belittling of the claimant, relate to her person, personality and status in the eyes of others rather than to her employment. Thus, the grounds and basis of the said N500 Million aggravated and exemplary damages is within the confine of the tort of defamation rather than contract of employment. That this Court is a specialized court established by the Constitution and with expressly stated jurisdiction which does not cover matters relating to humiliation, degradation and belittling in the place of work in the eyes of subordinates, peers and superiors as claimed by the claimant in this relief. The defendant referred to section 254C(1)(a) and (m) of the 1999 Constitution and section 7 of the National Industrial Court (NIC) Act 2006, which confer jurisdiction on this Court. That while a court of law may expound its jurisdiction, no court of law should be so greedy for jurisdiction as to expand its jurisdiction, citing Akande v. Alagbe [2001] FWLR (Pt. 38) 1352 at 1373. The defendant then submitted that the claimant’s claim/relief (4) for N500 Million aggravated and exemplary damages against the defendant for “humiliating, degrading and belittling” the claimant in the eyes of her subordinates, peers and superiors across over 23 countries in brazen disregard of its own Global Code of Conduct is not within the jurisdiction of this Court, urging the Court to so hold. 36. The defendant went on that aggravated and exemplary damages are genre of general damages which is only known in the law of tort and not in law of contract, a fortiori contract of employment, citing UTC v. Nwokoruku [1993] 3 NWLR (Pt. 281) 295 at 312, PZ & Co. Ltd v. Ogedengbe [1972] 1 All NLR (Pt. 1) 202 at 205 – 206, Okongwu v. NNPC [1989] 4 NWLR (Pt. 115) 296 at 309, Addis v. Gramophone Company Ltd [1909] AC 488 at 491; and Nigeria-Arab Bank Ltd v. Shuaibu [1991] 4 NWLR (Pt. 186) 450 at 471 Paras C-E (Ratio 25), which held that where a servant is wrongfully dismissed from his employment the damages for the dismissal cannot include compensation for the manner of the dismissal, for his injured feelings or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment. To the defendant, the instances and situations when exemplary and aggravated damages are granted are also settled in law, citing First Inland Bank v. Craft 2000 Ltd [2003] All FWLR (Pt. 660) 1416 at 1429, which held thus: Exemplary damages are usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment such as instances where malice, fraud, cruelty, insolence, flagrant disregard of the law are disclosed. Exemplary damages are recoverable only in matters in the realm of torts and not in claims for breach of contract with the only exception being in an action for breach of promise of marriage. Even in the realm of torts, the circumstances in which exemplary damages may be awarded are where the following are shown: (a) oppressive arbitrary or unconstitutional action by the servants of government; (b) where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; (c) where exemplary damages are expressly authorized by statute. That flowing from this authority, the claimant’s reasons and basis for her N500 Million aggravated and exemplary damages against the defendant being for “humiliating, degrading and belittling” her in the eyes of others, do not fall in anyway within the circumstances and/or situations when exemplary or aggravated damages can be granted, urging the Court to so hold and to dismiss claim/relief (4) accordingly. 37. The claimant’s claim/relief (5) is for “The sum of N2,000,000 (Two Million Naira only) as cost of this action.” To the defendant, it is settled law that a claim/relief for cost of action or solicitor’s fees is in the realm of special damages which must be specially pleaded and strictly proved, citing Divine Ideas Ltd v. Umoru [2007] All FWLR (Pt. 380) 1468 at 1509. That flowing from this authority and settled law, the claimant has neither pleaded at all nor led any evidence whatsoever in support of her claim/relief (5) for the sum of N2 Million as cost of this action. The defendant accordingly urged the Court to so hold and dismiss the claimant’s claim/relief (5). 38. The claimant’s claim/relief (6) is an omnibus relief. To the defendant, the Court cannot make incidental order(s) when the principal order is dismissed, citing Sanni v. Agara [2012] All FWLR (Pt. 612) 1816 and Awoniyi v. Reg. Trustees AMORC [2000] FWLR (Pt. 25) 1592. In conclusion, the defendant urged the Court to dismiss the claimant’s entire claims/reliefs, the claimant having not discharged the burden on her or led credible evidence before this Court to warrant the success of her claims. THE SUBMISSIONS OF THE CLAIMANT 39. The claimant submitted two issues for determination, namely: (1) Whether the claimant has successfully made out a case for constructive dismissal in this case. (2) If issue (1) above is resolved in the affirmative, whether this Honourable Court ought not to do substantial justice in this case, in view of the principle of Ubi Jus, Ibi Remedium. 40. In arguing issue (1), the claimant began by aligning herself with the submission of defendant’s counsel that the claimant’s action is in the main, founded and premised upon constructive dismissal. She then cited Mrs Vivien Jolayemi Asana v. First Bank of Nigeria Ltd (Suit No. NICN/LA/184/2016), where this Court, in clarifying the concept of constructive dismissal, had stated thus: In the words of this Court: 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. Thus where an employer makes life extremely difficult for an employee, to attempt to have the employee resign, rather than outright firing the employee, the employer is trying to create a constructive discharge. The exact legal consequences differ from country to country, but generally a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to seek legal compensation against the employer. The employee may resign over a single serious incident or over a pattern of incidents. Generally, the employee must have resigned soon after the incident. See generally Western Excavating v. Sharp [1978] 1 All ER 713 and Oladosu Ogunniyi’s Nigerian Labour and Employment Law in Perspective (Folio Publishers Limited: Ikeja), 2004, 2nd Edition, at pages 462 – 464. 41. To the claimant, the very wording of the above dictum captures in great details, the true reflection of the claimant’s work environment in the days and weeks leading up to her resignation from the defendant’s employ on 11th July 2018. That the claimant had testified copiously in her evidence-in-chief, supported by documentary evidence, of the ill-treatment, occasioning misery, which she had endured at the hands of the defendant. The claimant had led evidence to prove a deliberate and systematic undermining of her authority as the defendant’s Country Director in Nigeria as well as humiliation by a network of top international staff of the defendant based at its Regional Office in Kenya and the Headquarters in the United Kingdom. 42. That a careful perusal of Exhibits C1, C2(a), C3, C4(a) and the uncontroverted testimony of the claimant would reveal a pattern of unrelenting indignity directed at the person and high office of a Country Director, upon whom was an enormous responsibility to among other things, exercise control and maintain discipline within the Country Office over which she had charge. That it is in evidence that the defendant’s Regional Office in Kenya had supervisory authority over a number of Country Offices across Africa including Nigeria. That she is, therefore, at a loss to explain or justify by any stretch of the imagination, the conduct of Patrick Proctor, Esther Ndungu, and Donne Cameron towards her. 43. That as a Country Director who had had enough of absenteeism, tardiness and dereliction of duty from a staff under her, she drew the attention of the necessary supervisors up the rung (vide Exhibit C1). In a move actuated by a thirst for vengeance, the said staff authored a malicious and unsubstantiated petition, Exhibit C2(a), against her (the claimant). Rather than treat the two communications in the order in which they came, or even see beyond the façade, and be circumspect about the timing (and motive) of the second communication i.e. the petition against the claimant, the duo of Patrick Proctor and Esther Ndungu stood down the earlier communication (the claimant’s escalation to them) in preference for the subsequent petition. That in a move calculated to further humiliate the claimant, Mr Proctor assigned the investigation of the claimant, a head of a Country Office, to one Irene Oggawa, who was by far a junior to the claimant within the organizational ranking. Thankfully, the report of the investigation, Exhibit C4(a), found the allegations against the claimant not proved. 44. The claimant then submitted that a responsible organization of the stature of the defendant, an organization with its headquarters in the United Kingdom and operations in 23 countries, which celebrated its 60th anniversary in 2018, ought to have taken steps to discourage or deter such behaviour as exhibited by the author of the false petition. Unfortunately, the defendant did not. That the situation in the Country Office became very toxic and hostile, with the claimant’s authority as Country Director undermined with the active encouragement and condonation of the defendant. That the claimant’s inevitable resignation owing to the hostile work environment created by the defendant amounted to a constructive dismissal, urging the Court to so hold. 45. Furthermore, that the contempt shown for the claimant’s office as Country Director by the defendant’s Regional Finance Manager, Ms Nancy Oseko, in making unilateral decisions on the designation and placement of a new Finance staff within the hierarchy of the Nigeria Country Office and announcing same in a staff meeting, without recourse to the Country Director, was a major breach leaving the claimant with no choice but to resign. That the resultant resignation was tantamount to constructive dismissal, urging the Court to so hold. 46. The claimant continued that the defendant’s counsel has argued that the claims of the claimant ought to be dismissed, because of the error of claimant’s counsel in using the words “unlawful dismissal” rather than “wrongful dismissal”. To the claimant, in employments without statutory flavour, such as the one that led to this lawsuit, no court would make an order of reinstatement of a dismissed or terminated staff. That the only proper order to make in such a situation is an order as to damages or compensation. That in the defendant’s counsel’s view, counsel on the other side having committed that slip in terminology, the only relief the claimant herein ought to pray this Court for is an order reinstating her to the employ of the defendant. That to make such an order in this case would create an absurdity in which the judgment of the Court would be unenforceable, urging the Court to discountenance the defendant’s counsel’s argument. Furthermore, that the courts have held in a long line of decided cases that a party shall not be punished on account of the mistake or inadvertence of counsel, citing Dangote General textile Products Ltd v. H. A. (Nig.) Ltd [2013] 16 NWLR (Pt. 1379) 60 at 90. The claimant then submitted that to urge the court to disregard the core issue of substantial justice in preference for lexical and etymological finesse would amount to embarking on mere academic exercise, and as has been held in a long line of judicial authorities, the Court must not embark on an academic exercise, citing AG of the Federation v. ANPP & ors [2003] LPELR-SC 142/2003, Adelaja v. Alade [1999] 6 NWLR (Pt. 608) 544, Okulate v. Awosanya [2000] 2 NWLR (Pt. 646) 530, UBN Plc v. Sepok (Nig.) Ltd [1998] 12 NWLR (Pt. 578) 439, Nnubia v. AG, Rivers State [1999] 3 NWLR (Pt. 593) 82 and AG, Kwara State v. Alao [2000] 9 NWLR (Pt. 671) 84. 47. It is the further submission of the claimant the relevant question in this case is whether the claimant has made out a case for constructive dismissal; for then, the only remedy in law available to her would be damages and not reinstatement. That the remedy available to a successful claimant in a case of constructive dismissal is damages and not reinstatement, citing Miss Ebere Ukoji v. Standard Alliance Life Co. Ltd [2014] 4 NLLR (Pt. 154) 531, wherein having found for the claimant in terms of constructive dismissal, the Court assessed and awarded damages. The claimant, however, admitted the omission to specifically plead the facts that ought to ground the special damages, but drew the attention of the Court to a relevant piece of evidence, which is already before the Court. That DW had testified under cross-examination that the salary of the claimant per annum was £50,000 (Fifty Thousand British Pounds). That this is a relevant piece of evidence, citing Ebla Construction Ltd v. Costain (West Africa) Plc [2011] 6 NWLR (Pt. 1242) 110 at 128, which held that where the defendant’s evidence clearly supports the case of the plaintiff, the trial court is entitled to treat such an evidence as an admission and the plaintiff is entitled to rely on the same in further reinforcement of his case. 48. As regards the general damages, the claimant submitted that section 19(d) of the National Industrial Court (NIC) Act 2006 permits this Court to make an award of compensation or damages. That the law is that general damages are always made as a claim at large, the quantum of which need not be pleaded and proved, and is awarded for loss or inconvenience which flows naturally from the act of the defendant. It does not depend upon calculation made and figure arrived at from specific items, citing UBN Plc v. Alhaji Adams Ajabule & anor [2011] LPELR-8239(SC). That in the circumstances of this case, the totality of evidence led, and the settled principles of law, the claimant has made out a case for constructive dismissal, and is therefore entitled to the reliefs before this Court, being not just a court of law, but a court of justice, urging the Court so hold. 49. The claimant then conceded, as submitted by the defence counsel, that a claimant must succeed on the strength of his/her case and not on the weakness of the defendant’s case, citing Erinfolami v. Oso [2013] All FWLR (Pt. 673) 1991 at 2001. However, that the claimant is on a sure footing in the particulars she has provided to show that her resignation was inevitable and flowed from the heinous conduct of the defendant. Furthermore, that DW, having failed to adopt his witness statement on oath, the defendant in this case has placed no shred of evidence whatsoever before the Court to controvert any of the pieces of material evidence led by the claimant. Therefore, the totality of the evidence to be considered by this Court is the evidence of CW. That by its very nature, a witness statement on oath is not evidence per se, and it takes the specific adoption of it to turn it into evidence, citing Idris v. ANPP [2008] 8 NWLR (Pt. 1088) 1 at 97, which held that a witness’ statement on oath is in the nature of pleadings, which cannot be equated with evidence because pleading is not evidence. On this point, the claimant also relied on the unreported decision of Hon. Justice A. B. Mohammed of the FCT High Court in Isah Salihu Muhammad v. Mr Philemon Oumo Ogbodaba (Suit No. FCT/HC/CV/839/12), delivered on 16th June 2016. 50. To the claimant, the law is trite that where evidence has been wrongly admitted by a trial court, such wrongly admitted evidence must be expunged or discountenanced in the delivery of the judgment of the court, referring to Ezeugo v. State [2013] LPELR-19984(CA), Ogudo v. State [2011] Vol. 202 LRCN 1 and Stephen Haruna v. AG of the Federation [2012] LPELR-7821(SC). Accordingly, that the same fate ought to befall the defendant’s witness’ statement on oath and the attached documents which were admitted in evidence and marked as Exhibits D1 – D16(a). That they ought to be expunged from the record of the Court, having been wrongly admitted; and the fact that the claimant did not raise objection to the admissibility of the said documents notwithstanding, urging the Court to so hold. 51. Furthermore, that it is not even within the competence of the parties to admit by consent or otherwise a document which by law is inadmissible. Therefore, where such evidence is admitted in error, then it behoves the trial court to expunge it in the course of the judgment. That it is also the law that where a trial court fails to expunge such wrongly admitted evidence, the Court of Appeal has a duty to discountenance such evidence, and accordingly consider the appeal in the light of only legally admitted evidence, citing Midokun Owoniyi v. Omotosho [1961] All NLR 304 and Akinduro v. Akaya [2007] LPELR-344(SC). 52. The claimant continued that all this aside, the defendant’s witness statement on oath ought to be expunged from the Court’s record, along with the accompanying exhibits, having not been sworn to before a person duly authorized to administer an oath in accordance with section 11(1) of the Oaths Act 2004, which provides thus: Any oath or affidavit required for any court or for the purposes of registration of an instrument may be taken or made in any place out of Nigeria before any person having authority to administer an oath in that place. 53. The claimant then referred to sections 8 and 12 of the Oaths and Statutory Declarations Act (Cap 15) Laws of Kenya 1983 (Revised in 2012), under which the categories of persons besides a notary public who are authorized to administer an oath are: Magistrates; Commissioners for Oath; Registrars of the High Court; Deputy Registrars and District Registrars. That section 8 of the Oaths and Statutory Declarations Act (Cap 15) Laws of Kenya 1983 (Revised in 2012) provides thus: “A Magistrate or Commissioner for Oaths may take the declaration of any person voluntarily making and subscribing it before him in the form in the Schedule”. While section 12 of same Act provides that: A Magistrate, the Registrar of the High Court, a Deputy Registrar and a District Registrar may administer an oath or affirmation or take any affidavit or statutory declaration (voluntarily made and subscribed in accordance with the provisions of Part III) which might lawfully be administered or taken by a Commissioner for Oaths appointed under Part II. 54. To the claimant, DW had admitted under cross-examination that he had made his deposition in Kenya and sent to Nigeria for filing. The claimant conceded that he could validly do so under our laws, but he must do so before a person duly authorized to administer oaths. The claimant conceded also that there is a presumption of genuineness in favour of the seal or stamp on a document, which would be admissible in evidence in a foreign country. However, that the said presumption would have availed DW’s statement on oath if only the stamp on it had read “Notary Public” or any other official designation known to law, as provided above or even an official of an Embassy or High Commission. In this case, that the ink stamp impressed on the document in question does not in any way purport to be that of a notary public or any official who could legally administer an oath. That it is the law that the court cannot speculate on anything, citing Ikenta Best Nigeria Ltd v. AG, Rivers State [2008] 2 SCNJ 152 at 182 and Agip (Nig.) Ltd v. Agip Petroli International [2010] 5 NWLR (Pt. 1187) 348 at 413. 55. Furthermore, that by section 122(1) of the Evidence Act 2011, no fact of which the court shall take judicial notice under this section needs to be proved. Section 122(2)(e) of the same Act provides that: “The court shall take judicial notice of the seals of all courts of Nigeria, the seals of notaries public, and all seals which any person is authorized to use by any Act of the National Assembly or other enactment having the force of law in Nigeria”. To the claimant, the stamp of a legal practitioner (not purporting to be a notary public) in a foreign country, (in this case, Kenya), is not among the items listed under subsection (2), paragraphs (a) – (m), of which this Court shall take judicial notice. That the impression of a stamp made at the foot of the witness statement on oath does not on the face of it purport to be the stamp or seal of a notary public, urging the Court to discountenance same. 56. The claimant continued that having demonstrated the lack of evidence on the part of the defendant in this case, what is left is a combination of pleadings and counsel’s address. That the law is well settled that the address of counsel, no matter how elegant, can never take the place of evidence, citing Edward Okwejiminor v. G. Gbekeji & anor [2008] LPELR-2537(SC), Amosun v. INEC & ors [2010] LPELR-4943(CA) and Senator Usman Jibrin Wowo & anor v. Senator Adamu Muhammad Sidi-Ali & ors [2009] LPELR-5106(CA). 57. That assuming, without conceding that she is wrong in her submission that the defendant has placed no evidence before this Court, the claimant further submitted that the evidence of DW ought not to be relied upon, for not being a witness of truth. That DW’s evidence is replete with manifest untruths and contradictions. For example, he had stated in paragraph 5 of his witness statement on oath that the defendant is not an international Non-Governmental Organization (INGO), but in his oral evidence on 6th February 2020, he referred to his employer, the defendant, as “an International NGO.” Again he provided no cogent pieces of evidence to controvert the evidence of CW. That his purported evidence is a collection of mere sweeping statements of denial and no more. 58. The claimant went on that the combined effect of the evidence led by her as CW and the state of the law regarding constructive dismissal as copiously cited in her address is an inescapable conclusion that the claimant has made out a case for constructive dismissal, urging the Court to so hold. That the various acts of the defendant calculated to humiliate and belittle her, undermine her authority as Country Director and instances of active encouragement and condonation of mischief against the claimant are all in evidence before this Court, and are uncontroverted by any credible evidence other than mere sweeping statements of denial. Accordingly, that the claimant is entitled to redress from the Court, even if not to the full extent as contained in the pleadings of the claimant. The claimant then urged the Court to resolve issue (1) in her favour. 59. Issue (2) is whether this Court ought not to do substantial justice given the principle of ubi jus, ibi remedium once issue (1) is answered in the affirmative. To the claimant, in Re: Abdullahi [2018] LPELR-45202(SC), the Supreme Court cited Bello v. AG, Oyo State [1986] 5 NWLR (Pt. 45) 828 at 871 where in considering the maxim ubi jus, ibi remedium, it was held that: “This maxim is a principle of justice of universal validity available to all legal systems involved in the impartial administration of justice…” And that the principle enjoins the courts to provide a remedy whenever the plaintiff has established a right, as the courts are enjoined in all cases, to eschew reliance on technicalities in the determination of disputes. 60. The claimant then submitted that once the Court is satisfied that the claimant has made out a case for constructive dismissal, the law requires the Court to “provide” a remedy to the claimant, as meets the justice of the case. That it is indisputable that the grant of the claimant’s reliefs (1) and (2) is intrinsically tied to the success of issue (1) argued earlier. That said, that the principle of severability applies to the reliefs sought. That where a claimant has successfully made out a case for constructive dismissal, the trial court ought to look at the justice of the case, and dispense justice to the claimant, to the extent allowed by law. That the claimant cannot be left bereft of a remedy in law, on account of the wrong use of terminologies in framing her claims, which said error was entirely that of her counsel. 61. The claimant continued that where one or more of the reliefs sought by a claimant proves to be fatally flawed on account of non-compliance with certain fundamental provisions of a written law, rather than jettison all of the claimant’s claims, the court would be totally within its powers to take a course that would deliver justice to the parties. That if she has satisfactorily made out a case for constructive dismissal, it is trite that where there has been a wrong, there is a remedy. That the principle is ubi jus, ibi remedium. That is to say, this Court ought not to leave a wronged party without a remedy on the basis of her counsel’s failure or inadvertence to properly couch the wordings of her claims, citing Famfa Oil Ltd v. AG, Federation [2003] 9 - 10 SC 31 on the preference of courts for substantial justice over technicalities. In conclusion, the claimant urged the Court to uphold her submissions and grant the reliefs she seeks. THE DEFENDANT’S REPLY ON POINTS OF LAW 62. In replying on points of law, the defendant submitted that it is settled law that submissions/arguments not countered are deemed admitted, citing Nwankwo v. Yar’Adua [2010] All FWLR (Pt. 534) 1 at 22, Okongwu v. NNPC [1989] 4 NWLR (Pt. 115) 296 and Adeniran v. Ibra [2014] All FWLR (Pt. 720) 1302. That the defendant’s argument in paragraphs 4.4, 4.9, 4.10, 4.12, 4.73, 4.15 and 4.76, particularly on the point that declarations are not granted on mere admission or default of defence; that the issues of Ms Olayinka Omojokun and the Audit report are the reasons mentioned in the claimant’s resignation letter i.e. Exhibit C5; that to succeed in an action for constructive dismissal the employer’s conduct referred to must amount to a breach of the contract of employment, the mere fact that the employer has acted unreasonably is not sufficient; that none of the alleged reason(s), incidence(s) and/or occurrence(s) for the claimant's resignation was a breach of her contract of employment or goes to the root of the claimant's contract of employment; that the claimant knew the defendant’s policy had no back end provision for redress as expected by her; that no audit report was tendered and there is no evidence as to what is totally unprofessional and its process, the bias, the ill will contained therein; no email or document or evidence of any of the allegations by the claimant that led to her voluntary exit on 29th July 2018 was tendered before the Court; that the 30th July 2018 email from Executive Director Programmes cannot be the reason for the claimant’s resignation and voluntary exit on 29th July 2018 and that the email was qualified; amongst other arguments/submissions of the defendant’s counsel on reasons why the claimant did not establish constructive dismissal and thus not entitled to the declarations sought; were countered (sic) in the claimant’s final written address. Thus, that the said arguments/submissions in the above referred paragraphs of the defendant’s final written address on the claimant’s reliefs/claims 1 and 2 are deemed admitted and conceded to the defendant by the claimant. In fact, that the claimant could not resist obviously admitting some of these submissions/arguments, referring to paragraphs D.1.9; D.1.12; D.1.15; D.1.33; D.2.2 and D.2.4 amongst others of the claimant’s final written address, urging the Court to so hold. 63. The defendant went on that its arguments/submissions in paragraphs 4.20, 4.21, 4.22, 4.24, 4.25, 4.26, 4.28, 4.29, 4.30, 4.32, 4.33 and 4.34 of its address on the claimant’s reliefs/claims (3), (4), (5) and (6) were all not countered by the claimant; hence they are deemed admitted by the claimant and conceded to the defendant, urging the Court to so hold. 64. That the claimant rather than counter the referred arguments/submissions of the defendant amongst others, merely canvassed the argument that the mistake of her counsel in the case i.e. her own choice counsel should not be visited on her. To the defendant, there are exceptions to this general rule that the mistake of a counsel should not be visited on the litigant. That the instant case falls within the exception(s) to that general rule, citing Kotoye v. Saraki [1995] 5 SCNJ 1 at 7 - 8, which held that the defendant/applicant who has been or is a legal practitioner is not covered by the rule. That also exempted is where counsel is tardy and incompetent, as is ineptitude or strategic blunders, carelessness or failure of strategy or tactics, citing Ikenta Best (Nig) Ltd v. AG, Rivers State [2008] All FWLR (Pt. 417) 1, Henshaw v. Ekpeluma [2010] All FWLR (Pt. 540) 1339 at 1361, Min. Fed. Capital Territory v. Abdullahi [2010] All FWLR (Pt. 507) 179 and Isitor v. Fakorade [2018] All FWLR (Pt. 955) 494 at 507 - 509. 65. To the defendant, from these decisions, the rule that the mistake of counsel should not be visited on the litigant should not apply in this case and will not avail the claimant because: (i) The claimant (Lucia Balonwu) is a lawyer (legal practitioner), as she expressly stated in her witness statement on oath; in paragraph 3 of her 11th July 2018 resignation letter i.e. Exhibit C5, to wit: “My very being and background as a lawyer recoils at the lack of transparency that I have witnessed”; and also stated in her other various depositions before this Court. (ii) There is no affidavit by the claimant’s counsel admitting that he committed any error(s) or mistake(s). (iii) The rule cannot be applied to foist injustice on another par1y i.e. the defendant. (iv) The alleged or purported issues in and on which the claimant’s counsel error(s) or mistake(s) are canvassed are not mere procedural irregularities but rather pure issues and principles of law on which there are settled and decided authorities. (v) And ineptitude, strategic blunders and incompetence are not covered by this rule. 66. The defendant then submitted that the entire of the claimant’s counsel submissions/arguments on the rule of mistake of counsel not to be visited on the litigant are impotent and without weight in this case, urging the Court to so hold and not to give any value, weight or relevance to the said submissions/arguments. 67. The defendant went on that DW, Mr Patrick Proctor, did adopt his witness statement on oath on the 6th day of February 2020 when he testified before this Court. That the 6th February 2020 record of the Court will reveal and attest that Mr Patrick Proctor (DW) was before the Court as the defendant’s witness; he entered the witness box; he was duly sworn/affirmed by the Court official so designated to do; he referred to his 26th February 2020 witness statement on oath; he identified same by his signature; he adopted same and identified the documents frontloaded, which were also tendered to be admitted as exhibits through him; and he finally urged the Court to dismiss the claims/reliefs of the claimant; and he was eventually cross-examined by the claimant’s counsel. 68. That DW was cross-examined by the claimant’s counsel is admitted by the claimant's counsel in paragraphs A.4 page 4 lines 1 - 4; page 8 lines 4 - 7, 11, 12 and D1.12 of the claimant’s final written address. To the defendant, if DW did not adopt his witness statement on oath, being his testimony/evidence in chief, upon what basis, ground, evidence or testimony did the claimant’s counsel cross-examine DW? That DW duly adopted his witness statement on oath after being duly sworn by affirmation on oath by the Court official. Thus, whatever lapse(s), omission(s) or error(s) that the claimant’s counsel may want to impute to the said DW’s statement on oath, was/were cured or regularized by his (Mr Patrick Proctor) actual and physical presence before the court; being sworn/affirmed on oath from the witness box by the duly appointed Court officer before adopting his said witness statement of oath dated 26th February 2019 and tendering the frontloaded documents as exhibits on the said 6th February 2020, citing Orji v. INEC [2020] All FWLR (Pt. 1025) 343 at 400, sections 4(3), 10(1) and 12(3) of the Oaths Act Cap. O1 LFN 2010, Aregbesola v. Oyinlola [2011] 9 NWLR (Pt. 1253) 458 at 562 - 563 and Order 43 Rule 16 of the NICN RULES 2017. 69. On the propriety of the frontloaded documents admitted as exhibits through DW without any objection from the claimant’s counsel, the defendant referred to Maku v. Al-Makura [2017] All FWLR (Pt. 909) 1 at 73, which held that witness’ depositions once admitted become evidence-in-chief and the documents as analysed and incorporated in the statement on oath having been tendered without objection are to be assessed and evaluated before judgment is arrived. Also referred to are section 12(2)(a)(b) of the NIC Act 2006 and Order 40 Rule 1(2) of the NICN Rules 2017. To the defendant, from these authorities, DW’s statement on oath, the documents tendered through him and admitted as exhibits before the Court in this case and the issues/facts on which DW was not cross-examined, are all on sure and good footing, and can be relied on, assessed and evaluated by this Court, citing Agagu v. Mimiko [2009] All FWLR (Pt. 462) 1122 at 1170 - 1171 and Oyewinle v. Iragbiji [2004] All FWLR (Pt. 731) 1536 at 1581 where it was held that failure to cross-examine a witness on a particular matter is a tacit acceptance of the truth of the evidence of the witness; urging the Court to so hold. 70. The defendant proceeded to submit that consequent upon the authorities cited i.e. the Oaths Act, the NICN Act and the Rules and plethora of appellate courts decided authorities on the issue of witness statement on oath, the claimant’s counsel voyage of exploration to Kenya on her statutory provision on oaths and statutory declarations is of no moment and it is irrelevant in the circumstances of this case in the attempt to fault DW’s (Mr Patrick Proctor’s) testimony and evidence before this Court, urging the Court to so hold. 71. Continuing, the defendant submitted that the principle of ubi jus ibi remedium is not applicable in this instant case considering the facts before the Court and the conditions that need be satisfied before the principle can be applied; which conditions by Oyekanmi v. NEPA [2001] FWLR (Pt. 34) 404 at 436 and Bello v. AG, Oyo State [1986] 5 NWLR (Pt. 45) 828 are: (i) That the defendant was under a duty to the plaintiff (ii) That there was a breach of that duty (iii) That the defendant suffered legal injury (iv) That injury was not too remote 72. That from these authorities juxtaposed with the facts of this case, the defendant was not under any duty to the claimant and the claimant did not prove any such duty from the defendant to her regarding the alleged reasons for her resignation and voluntary exit as contained in her letter of resignation. In fact, that the claimant did not counter the defendant’s argument to the effect that there was no breach of her contract of employment and that none of the alleged reasons as contained in her letter of resignation voluntary exit goes to the root of her contract of employment as to amount to constructive dismissal. Also, that there was no breach of any duty by the defendant, much less the claimant suffering any legal injury in anyway at all. Thus, the conditions for the application of the principle of ubi jus ibi remedium are lacking in this case, urging the Court to so hold. 73. Furthermore, that there is/are existing common law remedy(ies) for constructive dismissal. Thus, the principle of ubi jus ibi remedium is not applicable when and where there is an existing remedy for the alleged wrongful act. Further still, that the claimant in this case also unequivocally stated the reliefs/claims she wants from this Court regarding the alleged wrongful action(s) of the defendant. That in such an instance where the claimant has unequivocally made specific claims/reliefs before the Court, the claimant is bound by her claims/reliefs and the Court cannot give to a party a relief that s/he has not claimed, urging the Court to so hold. 74. That while the claimant’s counsel argument/submission in paragraph D1.32 of his final written address that the DW’s evidence is replete with manifest untruths and contradictions is not true and not correct, the example he however gave of DW’s witness statement on oath and his (DW’s) oral evidence on 6th February 2020 betrays the claimant’s counsel submission/argument that DW did not adopt his witness statement on oath and did not testify before the Court on 6th February 2020. Accordingly, that the claimant cannot be approbating and reprobating at the same time before this Court, urging the Court to so hold. In conclusion, the defendant reiterated that the Court should dismiss the claimant’s entire claims/reliefs. COURT’S DECISION 75. I have carefully considered the processes and submissions of the parties. And a comment or two regarding particularly the addresses of counsel will not be out of place here. First, the penchant for long, windy sentences and paragraphing by the defendant’s counsel leaves much to be desired and says little of the written advocacy expected therein. Take some examples: paragraph 2.1 of the final written address of the defendant, which aside from the numbering is actually just one paragraph, ran from pages 4 to 8 of the address. Paragraph 2.2 of same address, another one paragraph, ran from pages 8 to 11. Paragraph 4.16 ran from pages 17 to 20. Paragraph 4.21 ran from pages 22 to 24. In the reply on points of law, paragraph 2.8 ran from pages 4 to 5; and paragraph 2.11 ran from pages 6 to 8. In fact, a look at paragraph 2.2 of the reply on points of law will show that the first sentence consists of 20 lines (indeed, the first 20 lines) of the paragraph. One sentence running into 20 lines! The point I complain about here is that these paragraphs are each just one single prose running into the pages already indicated without any brake whatsoever. Reading them is so boring that I wonder what use the writer made of his acquired O’level knowledge of comprehension and summary. The paragraphing, as already indicated, is poor and just unacceptable; and I denounce it in no small terms. 76. In Mr. Joseph Abang Bisong v.Union Bank of Nigeria Plc unreported Suit No. NICN/LA/318/2014, the judgment of which delivered on 9th July 2019, I denounced amongst others the long and windy sentences used by the writer of the claimant’s final written address in that case and recommended Chinua Asuzu’s recently released Learned Writing (Partridge), 2019 to him. I will do the same to the writer of the defendant’s final written address in the instant case; and I do so with the following additional texts by same author: The Uncommon Law of Learned Writing (Partridge), 2015 and Brief Writing Masterclass (Partridge), 2017. It is disheartening that in this era of simple and user-friendly English, where the mantra, as Chinua Asuzu puts it in his texts, is “write to be read”, we see paragraphing of the sort used in the defendant’s final written address in the instant case. As another mantra goes: a word is enough for the wise. 77. Secondly, in paragraph D.1.18 of her final written address, the claimant referred to Isah Salihu Muhammad v. Mr Philemon Oumo Ogbodaba (Suit No. FCT/HC/CV/839/12), delivered on 16th June 2016, without submitting the certified true copy as enjoined by Order 45 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017). On the authority of Major General Kayode Oni (Rtd) & 4 ors v. Governor of Ekiti State & anor [2019] LPELR-46413(SC), I shall discountenance this case law authority; and I so do. 78. Thirdly, although not dealing with the final written address, the numbering of the paragraphs of the claimant’s witness statement on oath of 25th October 2018 is in some respects faulty: there is a paragraph 41 between paragraphs 30 and 31; paragraph 42 comes immediately after paragraph 39; and after the said paragraph 42 is paragraph 40 followed by another paragraph 41. Effectively, therefore, there are two paragraphs 41. 78. The defendant had submitted that the claimant’s claim/relief (4) for N500 Million aggravated and exemplary damages against the defendant for “humiliating, degrading and belittling” the claimant in the eyes of her subordinates, peers and superiors across over 23 countries in brazen disregard of its own Global Code of Conduct is not within the jurisdiction of this Court, it being in the realm of defamation, which is something not covered under section 254C(1) of the 1999 Constitution dealing with the jurisdiction of this Court. 79. In Mr Olu Fasan v. FBN Capital Limited unreported Suit No. NICN/LA/87/2014, the judgment of which was delivered on 18th June 2019, the issue of whether this Court has jurisdiction over defamation in the workplace was raised. This is what this Court said in paragraph 53 after referring to two Court of Appeal decisions in the same case: (53) …However, a very recent Court of Appeal decision has upturned this viewpoint. See Medical and Health Workers Union of Nigeria v. Dr Alfred Ehigiegba [2018] LPELR-44972(CA), where the Benin Division of the Court of Appeal held that the NIC has jurisdiction over defamation arising from the workplace given the “matters incidental thereto or connected therewith” phrase used in section 254C(1) of the 1999 Constitution. The Court of Appeal even reviewed a good number of the decisions of this Court on the issue and held that they were wrongly decided. I am not unmindful that in same Medical and Health Workers Union of Nigeria v. Dr Alfred Ehigiegba, an unreported ruling in 2016 held that it is the High Court of Benin that had jurisdiction over the libel in issue. However, given the rule which says that in the event of conflict, the most recent of the conflicting decisions of the appellate court is to be preferred, I have no choice but to hold that this Court has jurisdiction over defamation. I do hold. 80. In like manner, I hold that the later decision of the Court of Appeal in Medical and Health Workers Union of Nigeria v. Dr Alfred Ehigiegba [2018] LPELR-44972(CA), this Court has jurisdiction over defamation in the workplace. Accordingly, this Court has jurisdiction over relief (4). I so hold. 81. The claimant complained and indeed submitted at paragraphs A.4 and D.1.15 to D.1.21 of her final written address that on 6th February 2020, when the defendant fielded its lone witness (DW), DW failed to specifically adopt his witness statement on oath. I checked through the record of proceedings of the said 6th February 2020 and discovered that DW did adopt his witness statement on oath. The record captures it thus: Yes, I made a deposition on 26th Feb. 2019, which I can identify. Yes, the deposition just shown to me is the one. I signed it; and I adopt it. I do not accordingly know what the claimant is saying and where she got the idea that the witness statement on oath of DW was not adopted by DW. Accordingly, I hold that the said witness statement on oath was specifically adopted. 82. Having held that DW adopted his witness statement on oath, the argument of the claimant that the deposition is in the nature of pleadings and so cannot be equated to evidence goes to no issue. Even if it did, that argument cannot withstand the Supreme Court decision in Buhari v. INEC [2008] 12 SCNJ 1, which equated a witness deposition with an affidavit. See also Aliyu v. Bulaki [2019] LPELR-46513(CA). In fact in Mr Henry Ihebereme v. Hartland Nigeria Limited unreported Suit No. NICN/ABJ/172/2018, the judgment of which was delivered on 23rd January 2020, at paragraph 58, I went on to hold thus: The argument of the claimant that there is a difference between an affidavit which is governed by the Evidence Act and a witness statement on oath which is regulated by the Rules of Court goes to no issue in view of the Supreme Court’s decision in Buhari v. INEC [2008] 12 SCNJ 1. 83. It is also the argument of the claimant that the statement on oath of DW was not sworn to before a person duly authorized to administer an oath in accordance with section 11(1) of the Oaths Act 2004. In support of her argument, the claimant’s counsel embarked on what the defendant described as a voyage into the statutory provision on oaths and statutory declarations of Kenya. This was unnecessary given the circumstances of this case as the matter could easily be resolved without the voyage to Kenya. Authorities abound here in Nigeria to resolve the issue. 84. Under cross-examination, DW had testified that he was not in Nigeria on 26th February 2019; and that he made his deposition of that date in Kenya before a Notary Public. A look at DW’s witness statement on oath in the case file will show that it was said to have been “Sworn to at the registry of National Industrial Court” on 26th February 2019. It is also said to have been sworn to before one Ibrahim Abu Aminu, SEO I (Lit), described as Commissioner of Oaths. The law is that documents speak for themselves. But as would be seen, what is as per the deposition of DW is contradictory to his testimony under cross-examination, where he acknowledged that he deposed to his sworn testimony in Kenya. This means that his deposition was not made in Nigeria. And if this be the case, it could not have been appropriately made at the registry of the National Industrial Court. Secondly, the deposition on face value was not sworn to before any Notary Public, whether in Nigeria or in Kenya. I so find. It is for this very reason that the claimant’s voyage to Kenya is unnecessary. 85. A similar issue presented itself in Mr Henry Ihebereme v. Hartland Nigeria Limited (supra). The competence of the two statements on oath of the claimant was raised by the defendant in terms of them not being sworn to in any registry of the National Industrial Court. The claimant had under cross-examination testified that he signed his two depositions in Benin, at GRA in Benin. It was thus the submission of the defendant that by this testimony, the claimant’s two statements on oath were not sworn to before the Commissioner for Oath in any National Industrial Court (NIC) Registry in Nigeria as on face value it would seem to suggest. In other words, that both depositions were invalid and so there is no evidence before the Court to prove the claimant’s claims. I found and so held thus at paragraph 52: (52) …The depositions show that the Commissioner of Oaths of the NICN in Abuja endorsed the depositions. But this proves nothing since it is not impossible that CW signed the depositions at GRA in Benin before it was brought to Abuja and endorsed by the Abuja Commissioner of Oaths of the NICN. The evidence of CW under cross-examination accordingly rebuts the presumption that the claimant’s counsel talks of i.e. that it was signed before an authorized person as endorsed… And at paragraph 53, I held that: “I am satisfied that the depositions in issue were signed in GRA Benin, and not the NICN Registry”. 86. I then went on to explain why I took the position I took in these words as per paragraphs 54 and 55: (54) The position I just took has the support of newer case law authorities that the claimant’s counsel seems blind to, which authorities kick against swearing of depositions outside of the Court. In Muhammad & ors v. Gani [2019] LPELR-47190(CA), for instance, the evidence elicited was one under cross-examination, just like the instant case. This is how the Court of Appeal put it: The 1st Appellant testified as DWI. He testified under cross-examination at page 128 of the record thus: "My lawyer read the statement to me in his office and I signed.” The Court of Appeal then held thus: “This offends the requirement of the law as it was not sworn before the authorized person”. By this authority, the evidence elicited under cross-examination that the witness’ lawyer read the statement to him in his office and he signed it was sufficient positive evidence for the Court of Appeal, just like I held the evidence of CW is sufficient positive evidence that he signed the two depositions in GRA Benin. (55) Additionally, the Supreme Court in Buhari v. INEC [2008] 12 SCNJ 1 at 91, actually held thus: When a deponent swears to an oath, he signs in the presence of the Commissioner for Oaths who endorses the document authenticating the signature of the deponent. Signatures signed outside the presence of the Commissioner for Oaths fall short of the requirement of the statute and such document purported to be sworn before the Commissioner for Oaths is not legally acceptable in Court. See also Onyechi Erokwu v. Jackson N. Erokwu [2016] LPELR-41515, Chidubem v. Ekenna [2009] All FWLR (Pt. 455) 1692 and Aliyu v. Bulaki [2019] LPELR-46513(CA). As it can be seen, the Supreme Court in Buhari v. INEC talked of “such document purported to be sworn before the Commissioner of Oaths”; the key word being “purported”. The depositions in the instant case were purported to have been sworn to before the Commissioner of Oath in NICN Abuja. The evidence of CW under cross-examination showed this to be incorrect despite that there is the signature of the Commissioner of Oaths of the NICN Abuja on it. What was brought before the NICN Abuja Commissioner of Oaths were merely already signed depositions. Accordingly, the argument of the claimant’s counsel as to admission of interest or that CW’s evidence that he signed the depositions in GRA Benin is not positive enough, all go to no issue. I so hold. 87. And at paragraph 59 of Mr Henry Ihebereme v. Hartland Nigeria Limited (supra), I concluded thus: (59) On the whole, I agree with the defendant that the claimant has no valid statements on oath to support his claim. This being so, the claimant has no evidence in support of his claim. On the score, the claimant’s case is liable to be dismissed; and is so dismissed. 88. In like manner, in the instant case, I am satisfied that the evidence of DW under cross-examination that he signed his deposition in Kenya is positive evidence enough to rebut the presumption that it was signed in the registry of this Court. This being so, the defendant has no valid statement on oath before the Court. On this, I agree with the claimant. This being so, the defendant has no evidence before the Court; and this is tantamount to the defendant resting its case on that of the claimant. I so hold. 89. The claimant seeks for two declaratory reliefs and four orders, the last order being an omnibus order. A look at reliefs (1) and (2), which are the two declaratory reliefs, will show the complaint of the claimant is that the defendant by its actions and inactions made her to resign and so her resignation is constructive dismissal. To the claimant, this constructive dismissal is also unlawful dismissal for which she is entitled to N325 Million as compensation. This sum, by relief (3) is for both compensation for the unlawful dismissal and benefits and allowances she would have earned for the next 13 years but for the unlawful dismissal. Effectively then, reliefs (1), (2) and (3) are all reliefs as the her claim for constructive dismissal, which is also unlawful dismissal. But for relief (3) to succeed, reliefs (1) and (2) must first be proved. 90. Being declaratory reliefs, reliefs (1) and (2) can only succeed on the strength of the claimant’s evidence, not on the weakness of the defendant’s defence. The defendant made this point quite strongly. So the question remains: did the claimant prove her claim for constructive dismissal? Before considering this issue, I need to point out that constructive dismissal is not the same as unlawful dismissal as the claimant seems to think. In equating constructive dismissal with unlawful dismissal in terms of reliefs (2) and (3), the claimant seems to think that the two are the same and so are alternative or interchangeable terms implying the same thing. In Joseph Okafor v. Nigerian Aviation Handling Company Plc unreported Suit No. NICN/LA/291/2016, the judgment of which was delivered on 25th April 2018, this Court rejected the claimant’s talk of “constructive unfair dismissal” as one unknown to law. 91. A look at reliefs (2) and (3) will show that the claimant talked of her dismissal being unlawful. The claimant most likely realized the error in her equating constructive dismissal with unlawful dismissal, for at the close of hearing and even after filing final written addresses, she applied by way of a motion on notice for the term “unlawful dismissal” to be changed to “wrongful dismissal” in all the processes before the Court. This application was rejected by the Court on the ground that the two terms connote different consequences in law that it was too late to seek such a change. In her final written address, the claimant described her use of “unlawful dismissal” instead of “wrongful dismissal” as the use of wrong terminologies in framing her claims, an error on the part of counsel, a slip in terminology, and one for which this Court should not hold as “to disregard the core issue of substantial justice in preference for lexical and etymological finesse would amount to embarking on mere academic exercise”. While this Court is set up to do substantial justice, it will not close its eyes to the reality of the distinction between the threes terms: constructive dismissal, unlawful dismissal and wrongful dismissal. The defendant made a clear distinction between unlawful dismissal and wrongful dismissal. What is actually before the Court is whether or not the claimant has made out a case for constructive dismissal. 92. Constructive dismissal is also called constructive discharge. It is a term and a cause of action recognized by this Court. In the recent decision of this Court in Mr David A. Fadipe v. Cedarcrest Hospitals Limited unreported Suit No. NICN/ABJ/147/2018, the judgment of which was delivered on 8th July 2020, this is what this Court said of constructive dismissal or constructive discharge at paragraphs 78 to 80, quoting from some of its previous decisions: [78] This Court recognizes the concept of constructive dismissal, which in a nutshell means the attempt to have the employee resign, rather than outright firing the employee. This signifies that the employer is trying to create a constructive discharge or constructive dismissal. In Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd unreported Suit No. NICN/LA/184/2016, the judgment of which was delivered on 9th October 2018, this Court held thus at paragraphs 78 to 81: (78) By Exhibit C5/D3, the claimant stated thus: “Further to the request that I should resign, by Management of First Bank of Nigeria Ltd. I hereby tender my letter of resignation”. Here, the claimant made it very clear that she was requested to resign by the defendant. A number of additional points are evident here supporting the assertion of the claimant that she was forced to resign. For one, the defendant itself in paragraph 5.15 of its final written address submitted that the claimant is not entitled to any of the claims contained in her statement of facts as she was advised to resign based on her poor performance and instead of having her appointment terminated the claimant decided to resign her appointment and having done so, the claimant is not entitled to be re-instated or to any of the claims contained in her statement of fact. Is this a case of double-speak on the part of the defendant? The statement in italics that the claimant was advised to resign based on her poor performance and instead of having her appointment terminated the claimant decided to resign her appointment, is the classic case of constructive dismissal/discharge (to which I shall return shortly), and suggests that the defendant did advise the claimant to resign in order to avoid being sacked for poor performance. Secondly, the claimant in Exhibit C5/D3 categorically stated that she is resigning because the management of the defendant requested her to resign. There is no evidence before the Court that the defendant replied to Exhibit C5/D3 denying the fact that it requested the claimant to resign. The natural conclusion is that the defendant accepted that fact when it did not deny it. (79) The law as to constructive dismissal/discharge has been stated by this Court in number of its decisions. For instance, in Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014, the judgment of which was delivered on 10th February 2017, this Court at paragraph 59 held thus: The claimant did not leave anyone in doubt that he resigned involuntarily. Exhibit C4 (same as Exhibit D4) is the Exit Form. Against the reasons for exit, the claimant ticked “redundancy” under “involuntary”; and under question 1 at page 2, to the question, “What are your primary reason(s) for leaving?”, the claimant answered, “Management decision to create room for new people to work with new GM”. This entry is pretty clear that the reason for leaving stems from management decision. I am satisfied and convinced with the evidence of the claimant that they were forced to resign; and I so find and hold. In any event, this Court, in Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531 NIC and Mr. Patrick Obiora Modilim v. United Bank for Africa Plc unreported Suit No. NICN/LA/353/2012 the judgment of which was given on 19th June 2014, held that to attempt to have the employee resign, rather than outright firing the employee means that the employer is trying to create a constructive discharge and for which a case of constructive dismissal is made. I do not see any difference between the instant case and Miss Ukoji and Modilim. Accordingly, it is my finding and holding that the claimants were invited to a meeting and in that meeting were asked to resign their appointments. Their resignation from the service of the defendant was, therefore, involuntary. I so hold. (80) And though a claim for constructive dismissal failed in Joseph Okafor v. Nigerian Aviation Handling Company Plc unreported Suit No. NICN/LA/29/2016, the judgment of which was delivered on 25th April 2018, this Court, regarding the requirements for a successful plea of constructive dismissal, however, in paragraph 61 held thus: …to be able to succeed in a claim for constructive dismissal, the claimant must show that he resigned soon after the incident(s) he is complaining about. See Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd (supra). The claimant himself agreed with the defendant that for the claimant’s case to succeed, he must prove as enumerated in Western Excavations v. Sharp [1978] 1 All ER 713 that there is a repudiatory breach (actual or anticipatory) on the part of the employer, which must be sufficiently serious to justify the employee resigning; the employee must resign in response to the breach; and the employee must not delay too long in acting on the breach… (81) The point in these cases is that for a claim for consecutive dismissal/discharge (for that is what the claimant’s case actually is in the instant suit) to succeed, the claimant must have resigned so soon after the employer’s act. The defendant argues that the 3 days in between the date of Exhibit C5/D3 and when it was received is too long a period for the claimant’s claim for forceful resignation (constructive dismissal/discharge) to be hinged on. Is this the case? I do not think so. Three days is not too long a period in this regard especially as the defendant made no attempt before now to dispute the fact that the claimant alleged that she was requested by the defendant to resign her employment. The defendant was until now silent on that fact. I accordingly believe the claimant that she was requested by the defendant to resign her employment…I accordingly hold that the claimant has made out a case for constructive dismissal/discharge. Relief (1) accordingly succeeds and so is hereby granted. Constructive dismissal/discharge once proved evinces a poor and unfair labour practice on the part of the employer… [79] In like manner, in the instant case, I find that the defendant asked the claimant to resign. This is constrictive dismissal as well as an unfair labour practice on the part of the defendant. As such, the claimant has made out a case of constructive dismissal in terms of his relief (a), which is hereby granted as proved. [80] Once constructive dismissal is proved, damages become thereby awardable. See Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd, Mr. Patrick Obiora Modilim v. United Bank for Africa Plc and Mr Charles Ughele v. Access Bank Plc (all supra). In relief (f), the claimant prayed for an order directing the defendant to pay the claimant damages in the sum of N10 Million only for the substantial breach and violation of the terms of the contract of employment executed between the claimant and the defendant. In Mr Charles Ughele v. Access Bank Plc (supra), this Court held thus: (72) …The law is that general damages are always made as a claim at large, the quantum of which need not be pleaded and proved and is awarded for loss or inconvenience which flows naturally from the act of the defendant. It does not depend upon calculation made and figure arrived at from specific items. See UBN Plc v. Alhaji Adams Ajabule & anor [2011] LPELR=8239(SC). Section 19(d) of the National Industrial Court (NIC) Act 2006 permits this Court to make an award of compensation or damages. Given the circumstances of this case, therefore, I agree with the claimant that he is entitled to general damages… Out of the N20 Million claimed in Mr Charles Ughele v. Access Bank Plc (a case filed on 25th June 2014 but whose judgment was delivered on 10th February 2017) as general damages for the constructive dismissal, this Court awarded only N1 Million as general damages. In like manner, I herein award N1 Million as general damages in terms of relief (f) claimed by the claimant. 93. Two things are deducible from all of these authorities: where it is found that the employer asked the employee to resign, a constrictive dismissal will be held. In Mrs Vivien Folayemi Asana v. First Bank of Nigeria Ltd and Mr David A. Fadipe v. Cedarcrest Hospitals Limited (both supra), this Court made a specific finding that the employee in each case was asked to resign by the employer; and then proceeded to hold that it amounted to constructive dismissal. Secondly, once constructive dismissal is found and accordingly held, general damages are awardable. And so this Court awarded general damages of N1 Million each in Mr Charles Ughele v. Access Bank Plc and Mr David A. Fadipe v. Cedarcrest Hospitals Limited (both supra). The argument of the defendant in the instant case, which intuits that damages cannot be awarded to the claimant must accordingly be taken with caution especially as relief (3) talks of compensation for unlawful dismissal including benefits and allowances. Once the claimant can prove constructive dismissal in the instant case, she would be entitled to at least general damages. The question, however, still remains: did the claimant prove constructive dismissal? 94. The claimant’s case is not that the defendant asked her to resign. It is that the behaviour (actions and inactions) of the defendant made her to resign. In Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd [2014] 47 NLLR (Pt. 154) 531 NIC, this Court held thus: 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. Thus where an employer makes life extremely difficult for an employee, to attempt to have the employee resign, rather than outright firing the employee, the employer is trying to create a constructive discharge. The exact legal consequences differ from country to country, but generally a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to seek legal compensation against the employer. The employee may resign over a single serious incident or over a pattern of incidents. Generally, the employee must have resigned soon after the incident. See generally Western Excavating v. Sharp [1978] 1 All ER 713 and Oladosu Ogunniyi’s Nigerian Labour and Employment Law in Perspective (Folio Publishers Limited: Ikeja), 2004, 2nd Edition, at pages 462 – 464. 95. From Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd, the employer need not have asked the employee to resign. The behaviour of the employer is sufficient once it is intolerable or heinous that the employee has no choice but to resign. The employer must have created such working conditions or so changed the terms of employment that the employee has little or no choice but to resign. It must be noted though that the claimant’s case in the instant case is not that the employer changed the terms of employment. Where the employer makes life extremely difficult for the employee, to attempt to have the employee resign, that will amount to constructive dismissal. The employee may resign over a single serious incident or over a pattern of incidents. But generally, the employee must have resigned soon after the incident. Has the claimant in the instant case met all these requirements? 96. I already held that the defendant has no evidence before this Court in this case. This means that only the evidence of the claimant is before the Court. This in itself means that the ipse dixit and other evidence of the claimant is not controverted; and so in itself is believable. In Dorothy Adaeze Awogu v TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018, this Court held the uncontroverted ipse dixit of the claimant as believable. 97. Exhibit C5 is the claimant’s letter of resignation. It is not dated. The law, as Aremu v. Chukwu [2011] LPELR-3862(CA) puts it, is that a document which bears no date of execution or when it comes into operation, is ordinarily invalid and unenforceable but parole evidence is admissible to show when the document was written and from what date it was intended to operate. Accordingly, in paragraph 30 of the claimant’s witness statement on oath of 25th October 2018, the claimant deposed that she sent in her resignation letter on 11th July 2018 and then also stated that the said resignation letter is dated 11th July 2018. This ipse dixit has effectively supplied the date of Exhibit C5 and so made valid Exhibit C5. I so hold. 98. In resigning, the claimant wrote thus in Exhibit C5: It is with a deep sense of sadness and disappointment that I write to communicate my decision to resign from the office of Country Director, Nigeria at VSO International. Recent occurrences have raised serious doubts for me about the people first principles we profess in this organisation as I have noted a dismal lack of transparency and have been on the receiving end of injustice, mischief and conspiracies permitted and indeed promoted by the very systems meant to protect all ‘people’ at VSO. This resignation would have come a month earlier when I discovered that accusations both formal and supposedly ‘anonymous’ are equivalent to facts at VSO. I trusted the system and submitted myself to investigations that provide allegations from the relevant staff were false and to my dismay, our systems offer no back end provision for redress to deter such acts of mischief. I however chose to trust the system again and it is with great disappointment that I have now received an audit report evidencing a totally unprofessional audit process tainted with bias and ill will. My very being and background as a lawyer recoils at the lack of transparency that I have witnessed. I have attached several mails to provide an overview of my recent experiences in this post — they are extensive, hence I will refrain from providing specific details in this letter. ………………………………… I will continue to work with the highest sense of responsibility throughout the period of my contractual notice — 3 months from this date culminating on Wednesday October 10th 2018, and give my best to ensuring the handover of a strong and viable country office to the incoming Country Director. Thank you for a truly educative experience that has broadened my knowledge and experience of management at the highest level. I am sincerely grateful for the opportunity to have served at VSO. 99. This is the resignation letter that the defendant submitted was voluntarily given by the claimant and so cannot found constructive dismissal. What I gather from Exhibit C5 is that the claimant felt betrayed by the behaviour of the defendant carrying out her lawful duties, which behaviour forced her to tender her resignation letter. In paragraphs 3 to 32 of her statement on oath of 25th October 2018, the claimant recounted how the defendant belittled her, refused to look into a complaint she filed against her staff, how the petition of the staff was preferred over and above her complaint, how her junior was asked to head an investigation into the petition against her, how she was found not guilty and yet had to face an audit enquiry, etc. Aside from the fact that all of this was not controverted by the defendant, they represent to me a harrowing experience capable of forcing a resignation. If as a Head of an establishment, an employer would demean such head by preferring juniors to the head, then the action of the employer is capable to force a resignation; and if the resignation is so forced, that to my mind would warrant a finding of constructive dismissal. The actions of the defendant in the instant case were series of such demeaning conduct. 100. In the instant case, the defendant did not ask the claimant to resign. But the behaviour of the defendant was such that it was sufficient to force the claimant to resign. The defendant’s behavior was intolerable that the claimant had no choice but to resign. The defendant created a working condition that the claimant had little choice than to resign. The defendant made the claimant’s working life extremely difficult. The only way out for the claimant was to tender her resignation. I am accordingly satisfied that the claimant resigned given the pattern of incidents of the defendant, and that the claimant resigned soon after the incidents. I am satisfied that the claimant has successfully made out her case for constructive dismissal. And so reliefs (1) and (2) are grantable but only in terms of constructive dismissal, not unlawful dismissal as understood in our general corpus of labour jurisprudence. 101. This being so, the claimant is entitle to general damages (compensation) in terms of relief (3), but only in terms of the constructive dismissal. I so hold. Like in Mr Charles Ughele v. Access Bank Plc and Mr David A. Fadipe v. Cedarcrest Hospitals Limited (both supra), I award the sum of N1 Million only as general damages for the constructive dismissal of the claimant in the instant case. 102. As for compensation for benefits and entitlements, I agree with the defendant that this is a claim for special damages, which must be particularly pleaded and specially proved with compelling evidence. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA), Mr Suraju Rufai v. Bureau of Public Enterprises & ors, Mr Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc, Mr Yerima Isa Hussaini & 2 ors v. Arksego Nigeria Limited unreported Suit No. NICN/ABJ/263/2018, the judgment of which delivered on 27th May 2020 and Mr David A. Fadipe v. Cedarcrest Hospitals Limited. None of this was done by the claimant; and so it is not known what part of the N350 Million the claimant claims can be attributable to compensation for benefits and entitlements she would have earned for the next 13 years, but for her unlawful dismissal. This part of relief (3) must accordingly fail and so is hereby dismissed. 103. Relief (4) is a claim for N500 Million being aggravated and exemplary damages against the defendant for “humiliating, degrading and belittling” the claimant in the eyes of her subordinates, peers and superiors across over 23 countries in brazen disregard of its own Global Code of Conduct. The acts of the defendant which humiliated, degraded and belittled the claimant are the same acts which founded constructive dismissal, for which the claimant is entitle to general damages as already awarded. To grant relief (4) would amount to double compensation and a windfall. Relief (4) accordingly cannot be granted. It is hereby dismissed. 104. Relief (5) is for cost. By NNPC v. Clifco Nigeria Ltd (supra), the award of cost is entirely at the discretion of the court, although costs follow the event in litigation. A successful party is thus entitled to costs unless there are special reasons why he should be deprived of his entitlement. And in making an award of costs the court must act judiciously and judicially i.e. with correct and convincing reasons. The claimant did not state to this Court how she arrived at the N2 Million she asks for as cost of this action. 105. Relief (6) is an omnibus relief ill-suited for the present case. There is no “order or further orders as this…Court may deem fit to make in the circumstance”. Relief (6) is accordingly dismissed. 106. On the whole, and for the avoidance of doubt, the claimant’s case succeeds in part only, and only in terms of the following declarations and orders: (1) It is declared that the actions and inactions of the defendant had a material and adverse effect on the claimant’s working conditions, such that she could not reasonably be expected to continue in the said employment. (2) It is declared that in the light of the prevailing hostile and humiliating work environment that gave rise to the claimant’s purported resignation, the said resignation was tantamount to a “Constructive Dismissal” by the defendant. (3) It is ordered that the defendant shall within 30 days of this judgment pay to the claimant the sum of N1 Million only being general damages/compensation for constructively dismissing her. (4) Failure to pay the said N1 Million within the time stipulated shall attract simple interest at 10% per annum until fully paid. 107. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD