IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
Suit No: NICN/LA/01/2015
Petitioner: BARR. TOYIN GBEDE And
Respondent: NIGERITE LIMITED ANOR
Date Delivered: 2017-02-08
Judge(s): HON. JUSTICE OYEWUMI OYEJOJU
Judgment Delivered
REPRESENTATION: Ifeanyi Edemba with him is Tola Ajanna for the claimant Uzoma H. Azikiwe with him are Gbenga Ojo, Kayode Omosehin, Adebola Amao (Mrs) Ejike Ikeji-uba, Busayo Balogun (Miss), Olukayode Dada, Adesina A. (Miss), Osoka O. (Miss).
JUDGMENT The claimant by his Complaint dated and filed on the 27th of January, 2015, claims against the defendants jointly and severally as follows:
- SPECIAL DAMAGES in the sum ofN35,639,810.5broken down as follows:
- N30,000,000being the retirement payment agreed between the parties, and consequent upon which the claimant.
- N2,760being Leave Transport Allowance for 1993 Outstanding Leave.
iii. N25,090.91 Payment in lieu of unutilized 1993 Outstanding Leave.
- N4,350,000For Outstanding Executive Training Programmers’
- N1,200,420for the Early Retirement roofing/ceiling/cement products
- N61,539.59being Pension Contribution for November, 2014.
- GENERAL DAMAGES in the sum of Five Hundred Million Naira against the defendants for the stigma, psychological trauma, insult, embarrassment and dishonor visited upon the claimant by the unlawful acts of the defendants. c. Cost of this action assessed at the sum ofFive Million Naira(N5,000,000) only. It is the claimant’s case that until his voluntary retirement on the 10th of November, 2014, he was an employee of the 1st defendant as an Executive Director, Marketing. He stated that upon his employment on the 1st of February, 1993 as an Assistant Sales Manager, he achieved some feats for the company which includes;
- Won the contract for roofing and ceiling of1,000unit housing estate per State embarked upon by the Federal Government in 1993/1994 (SLW + SFS):
- Won the contract for roofing and ceiling of Otedola Housing Estate (30 units of houses) and Olushola Housing Estates (40 units), both from the Lagos State Ministry of Housing in1994/1995;
- Won contract for roofing and ceiling of Mobolaji Johnson Housing Estate (52 units), through the Lagos State Ministry of Housing; d. Sales presentation at all key professional forums and seminars on behalf of the 1st respondent; That he was consequently promoted to the position of an Acting Technical manager in 2years 8months of his employment. That between the period of1995 to 2001some of his achievements were;
- Completed the500rn x 50mauditorium at Redemption Camp at Lagos/Ibadan Expressway, within the stipulated two (2) weeks thereby fulfilling conditions for future projects;
- Introduced various project implementation forms to be completed by Project Engineers for process improvement and effective project management:
- Produced video documentary of roof installation process as a tool for learning, training and skills development;
- Introduced and enforced wood joining methods (scalf, mitred joint) for structural stability of wooden roof trusses (international best practice)
- Researched on types of woods best suited for roofing carcass and introduced specification to guide 1st respondent’s project Engineers:
- Turned the Technical Services Department into a profit Centre with 25% margin 011 installations:
- Introduced tarpaulin underlay for roof installation in Nigeria:
- Prepared the Marketing and Technical/Installation content forK7,Crete Tiles, Kings Tiles, SFS (1st page), and reviewed existing brochures for S7, SLW, Duke and Duchess Slates and Villa Tiles:
- Designed appropriate fixing nails forS7/K7 and SLW/KSLW/LTS.The designed fixing nails were produced in China and introduced into the Nigerian market through claimant’s initiative. The nails are still in desperate demand by carpenter’s years after Nigerite stopped its importation;
- Resolved the Villa Tiles roofing problem of CBN Housing Estate at Garki, Abuja,1996/1997; and
- Completed the roof installation of Garki Market lock up shops in Abuja with Long Span (Amiantus) FC sheets with high commendation from the customer(FCDA) 1998/99. That he was consequently promoted to the position of National Technical Sales Manager and he achieved the following;
- Sales growth of ‘Crete Tile’ roofing tiles from 100,000 units in 2001 to 850,000 units per annum by 2007;
- Won contracts for re-roofing of two (2) major markets in Ogun State with K7 and Ultra Span. Contracts were worthN325,000,000, in 2004;
- Won contract for roofing of over1.5km x 1.5km Church Auditorium of the Redeemed Christian Church Campground, with S7 FC sheets. Contract was worth over N600, 000,000.
- Expansion of the 1st respondent’s distribution network from 3 key distributors and 6 main distributors to 25 main distributors (semi-urban market) and over 75 minor distributors (rural market) for cash cow non-technical brands;
- Won contracts for roofing of Lagos State Millennium Schools. Contracts were worthN200,000,000;
- Grew Ultra Span from Four (4) containers at introduction Hall 2001 to over 65 containers by 2007, and to its present level of 125 containers:
- Won contracts for roofing of Faculty of Business Administration Lecture Hall, University of Lagos;
- Won contract for rooting of Ogun State Television Station, Abeokuta; and
- Won contract for roofing of Ogun State PDP Party Secretariat, Abeokuta.
He averred that in consequence he was nominated and appointed at the 170th Board Meeting of the 1st respondent held on the 14th JANUARY 2008, as Executive Director, Marketing and between 2008 and 2014, some of his achievements are as follows:
- Increased 1st respondent’s turnover by over 160%, fromN9.3 billionto N14.8billion:
- Introduced and grew sales of the following component solutions/brands: Alurr Shingle (roofing) + PPRD (under roofing), Luxe floor finishing, Gemstone metal roof tiles, Drywall building boards (Plasterboard and Kalsi autoclaved board), metal studs and plaster, Ultralite light steel for roof trusses and integrated building solution:
- Reorganized the Sales Department into 3 business units, viz: (i)Rooting and Ceiling, Dry Construction and (iii)Abuja Business Unit;
- Embarked on ambitious brand building campaign/product launch on Alurr Shingles to position the brand for the premium market;
- Embarked on integrated marketing communication campaign on Crete Tile roofing tiles to change consumer perception of the brand from being seen as heavy to be perceived as strong;
- Created “Youth Our Future” initiative, a sustainability/CSR project to raise new generation of Nigerian youths that will perceive the 1st respondent’s corporate brand as modern and innovative. Under this project, he organized “Green Lagos’ -an essay competition on the environment among all secondary schools in Lagos State, collaborated with various government technical vocation education boards, for example LASVEB, on installation best practice and training of artisans and technical school graduates; for which the company won many accolades from Government and immeasurable mileage and respect from the public.
- Won contracts from 2 State governments to build 3 primary school complexes using the Drywell system. Contracts are valued at overN500.000.000.Other State governments are equally showing very keen interest;
- Organization of effective customer oriented marketing activities:
- Ensuring that all sales contracts are profitable to the company through appropriate pricing policy;
- Ensuring effective integrated marketing communication mix for maximum visibility of 1st respondent’s brands;
- Ensuring good relationship with various building/construction related professional bodies such as NIA, NIQS, NIOB. NIESV, FOCI and carpentry associations; and l. Stabilizing Net Selling Price (NSP) of cash cow brands (flat sheets) to ensure average margin of 50% and Star brands (Lite Span) at 30%, Ultra Span at 25%. He stated that he was entitled to annually go on leave and attend executive training programs but the respondents regularly denied him of them citing his strategic position and professions to the daily running of their business. That he was valued by the respondents for faithfully increasing their wealth from N9.3billion to over N14billion until 2012 when the majority shareholder, Etex Group of Belgium sought to unethically seize total control of the Company, contrary to the interests of the Nigerian shareholders. That in 2012, Etex Group (through the 2nd respondent) communicated to Odua Investment Group its intentions as follows:
- To transfer the two (2) Executive Directorship positions allotted to Nigerians (Finance and Marketing) to its expatriate staff.
- To merge all the Etex group companies in Nigeria (Nigerite, Eternit, Emenite and Giwarite) into a single entity to be solely owned and controlled by Etex Group through a Virtual Shared Service Centre Company with its Server based overseas in Belgium. Odua Investment Group rejected this proposal on the grounds that
(a) it is not equitable or fair that there should be no Nigerian Executive Director in the Board, even when Odua Group (Nigerians) has 40% equity and the company is operated in Nigeria;
(b) the other Etex companies are not owned solely by Etex and Odua Group but by Etex and other States government aggregations (Eg. Emenite: Etex and South Eastern States, Eternit: Etex and South-South States. Giwarite: Etex and Northern States). Also, running the 1st respondent through a Virtual Shared Service Centre will mean running the operations of the 1st respondent far away from the keen eyes of local stakeholders and government agencies. That consequent to Odua Investment Group rejection and the series of meeting had by Etex, Etex and the 2nd respondent agreed to drop the proposals. He pleaded that contrary to the agreement the 2nd respondent and Etex secretly commenced the process of setting-up of the Virtual Shared Service Centre with the intention of solely controlling the 1st respondent from Belgium, data access and operation inclusive. The 2nd respondent deceptively presented it at the Board for approval. The Odua Group members saw through the plan and opposed it successfully, remotely control and manipulated all operations and data from Europe to the disadvantage of local shareholders. This means that they can exclusively alter financial, technical correspondence marketing, sales and distribution, logistics, staff personal information database, operational records/data etc. remotely from Belgium. He stated that when the last Finance Director, Mrs. Olaitan Ojutoye (Nigerian) was harassed into retirement in December 2013 (against Board approval of one year contract extension towards transparent recruitment of a worthy successor), rather than appoint a Nigerian to replace her on the Board. Etex nominated an Expatriate, Mr. Philippe Deckers (a Belgian) to the Board.
That sensing the tactics employed by Etex and the 2nd respondent to seize the control of the company, Odua Investment Group demanded for a review of the 1959 Memorandum and Articles of Association of the 1st respondent. Odua insisted that the Memorandum and Articles of Association were obsolete and that Etex must not go ahead with remote management of the 1st respondent by virtual means using the vehicle of Shared Service Centre and SAP Platforms. Etex refused onboth counts and insisted that it must be business as usual. That Odua Investment Group refused to approve the 1st respondent’s 2014 budget until the Memorandum and Articles of Association are reviewed. That Etex and the 2nd respondent in their desperate bid to force their way through their position at the Board meetings by all means, directed and demanded a commitment from the Nigerian Executive Directors (the claimant and the then Finance Director, Mrs. Olaitan Ojuroye) to support the Etex position and vote in its favour. That he refused to do to their bidding and which they saw as an affront and purportedly removed him at the Annual General meeting of the 1st respondent dated 3rd of July, 2014. That he was replaced with one Juan G Lugo a Colombian leaving no Nigerian Executive Director on the 1st respondent Board. That he met with the 2nd defendant urging him to correct the error and return him to the Board, but the 2nd defendant stated he will present the claimant’s position to Etex, but he is doubtful if the Board will reinstate him. He averred further that the 2nd defendant inquired if in the event he retires, he would be disposed to provide Marketing consultative services to the defendants as will be required, to help sustain market share, in the lace on stiff competition from a new entrant to Fibre Cement business, Purechem Industries Ltd. Claimant agreed to provide Marketing consultative services if he is well treated. The 2nd respondent declared that they (he and the 1st respondent) are prepared to pay him Thirty Million Naira (N30,000,000) in retirement package excluding his other entitlement, in the event he retires. That he tried to put forth the argument that he deserves much more than thirty million offered him with regards to the great achievement he shot the company into with his effort but the 2nd defendant insisted on the said amount which he eventually agreed to. That in the meantime, he continued to carry out his duties while Etex’s response on his demand to return to the board is awaited. He redoubled his efforts on his duties; and in consequence, sales at the end of the month of August shot up to 106% of the 1st respondent’s budget/target. The same trend continued in September, even though the budget for the month was very high. That he waited for two (2) months without hearing from the 2nd respondent on his demand to be returned to the board. He therefore sought legal advice from his lawyers and he was advised to retire and take the agreed retirement package. He instructed his lawyers to give the defendants a one-month Notice of Early Retirement on the 9th of October, 2014. That vide a letter dated 13th of October, 2014 with reference no AB/FLB/COT/HRD.037/001, the defendants accepted his retirement. That contrary to the agreement between him and the defendants, the contents of the letter dated 13th of October, 2014 show how the defendants want to shortchange him by not properly computing his entitlement. That vide a letter dated 20th of October, 2014 his lawyers replied the letter of acceptance of his retirement and informing the defendants of the short change. In response by a letter dated 3rd of November, 2014, the defendants stated that it had already terminated the employment of the claimant before he voluntarily retired. He pleaded that on 7th November 2014, his lawyers wrote the respondents a letter demanding for full payment of his entitlements but the defendants wrote a letter on the 5th of November, 2014 purportedly terminating his employment. He continued that contrary to the content of the defendant’s letter dated 3rd of November, 2014 the incidence described to have taken place never took place at all. That after the day’s work at about 7.18pm on the 10th of October, 2014, he met with the 2nd defendant and briefed him that he had tendered an early retirement notice and inquired if the 2nd defendant has received a copy. He denied receiving any copy. That he has decided to exercise the alternative to retire in accordance with their discussion of 1st August, 2014. His retirement will be effective on 10th November 2014. That at their meeting on 10th October 2014, the 2nd defendant did not mention termination letter. That on another meeting on Monday, 13th October 2014, the 2nd defendant continued to deny seeing the notice of early retirement letter, and it was not until the Human Resources Manager admitted receiving the letter that the issue was laid finally to rest. That on 28th November 2014, the respondents wrote him a letter whereby they advised him that they have paid the sum of N2, 464,088 into his account, being full and final settlement of all obligations. That contrary to the respondents’ letter, his due entitlements listed hereunder remain unpaid:
- N30millionretirement package.
- N2,760being Leave Transport Allowance for 1993 Outstanding Leave
- N25,090.91Payment in lieu of unutilized 1993 Outstanding Leave
- N4,350,000For Outstanding Executive Training Programs
- N1, 200,420for the Early Retirement roofing/ceiling/cement products.
- N61, 539.59being Pension Contribution for November, 2014. The claimant during trial testified for himself as CW and he adopted his written statement on oath which is in tandem with his pleadings summarized supra. He tendered documents, admitted and marked as Exhibits TG1-TG16. He stated under cross examination that he obtained all his degree in the course of his employment with the defendants and that his achievements were as a result of his employment. He stated that Etex was the Majority shareholder in the defendant. That he was removed as an Executive Director on the 3rd of July, 2014 in the Annual General Meeting. He admitted that after his removal he continued his employment with the defendant. He stated that the agreement between him and the MD to pay the sum of N30,000,000.00 was oral and not written. That his notice of early retirement was signed by him and sent through his Solicitor. He stated that the memo of the 1st defendant was a forgery and he filed the correct memo. He admitted that the subscribers in both the Memo Exhibits TG12 are the same. He stated that his claim for pension is for the period before 10th of November, when his retirement took effect. In defence, the defendant pleaded that whatever jobs/assignments that were carried out by the Claimant in the course of his employment with the 1st Defendant were in fact carried out in the normal course of his duty and as part of his obligations as an employee of the 1st Defendant, and that for these, he was appropriately remunerated and compensated; and that during the period of his employment, the 1st Defendant adequately equipped him by allowing, and sponsoring him to undertake courses and training amongst which led to his obtaining a Masters of Business Administration (MBA) Degree in 1999, and a Bachelor of Laws (LL.B) Degree and Barrister at Law (BL) qualification in 2005 and 2006 respectively. That contrary to the averments by the Claimant in his Statement of Facts, the 1st Defendant’s turnover was N11.9 Billion in 2008 and N12.9 Billion in 2014, and that during the same period, the sales volume went down from N19.3Miliion square meters (m2) to N17.5Million square
