IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS
DATE: SEPTEMBER 27, 2018 SUIT NO: NICN/LA/301/2015
BETWEEN
Arese Alonge – Claimant
AND
1. Unity Bank Plc.
2. Henry James Semenitari – Defendants
REPRESENTATION
Kemi Pinheiro, S.A.N with Adebowale Kamoru, Kehinde Daniel and
Bukola Asekun for the Claimant.
Paul Eishemomoh for the Defendants.
JUDGMENT
1. Introduction & Claims
On 11/2/15, the Claimant approached this Court via her General Form of Complaint, statement of facts and all requisite frontloaded processes and sought the following reliefs against the Defendants –
A. A declaration that the purported termination of the employment of the Claimant by the 1st Defendant contained in the letter dated 14th January, 2015, is unlawful, null and void, invalid and of no effect whatsoever.
B. An Order setting aside the 1st Defendant’s purported letter of termination dated the 14th January, 2015 as unlawful, null and void, invalid and of no effect whatsoever.
C. A declaration that the Claimant is a subsisting Executive Director of the 1st Defendant and entitled to continue to enjoy all the entitlements, benefits, emoluments and all other rights and or privileges attached or appertaining to the office and position of Executive Director of the 1st Defendant.
D. An Order directing the 1st Defendant to effect payment of the monthly sum of =N=l,381,750.00 (One Million, Three Hundred and Eighty One Thousand, Seven Hundred and Fifty Naira Only) to the Claimant (excluding the months of January, April, July and October) commencing from 30th January, 2015 till final determination of the instant suit, the said sum representing the gross amount due from the 1st Defendant to the Claimant as monthly basic salary, excluding other allowances, benefits and entitlements in every month exclusive of January, April, July and October.
E. An Order directing the 1st Defendant to effect payment of the quarterly net monthly sum of =N=2,194,666.00 (Two Million, One Hundred and Ninety- Four Thousand and Six Hundred and Sixty-six Naira Only) paid in the months of January, April, July and October to the Claimant commencing from 30th January, 2015 till final determination of the instant suit, the said sum representing the gross amount due from the 1st Defendant to the Claimant as quarterly net salary, excluding other allowances, benefits and entitlements in every January, April, July and October.
F. An Order directing the 1st Defendant to pay to the Claimant, the allowance, benefits and other entitlements due and or may become due and or continue to accrue to the Claimant with effect from 30th January, 2015 to the final determination of this suit, as set out hereunder: to the Claimant as quarterly net salary, excluding other allowances, benefits and entitlements in every January, April, July and October.
G. An Order directing the 1st Defendant to pay to the Claimant, the allowance, benefits and other entitlements due and or may become due and or continue to accrue to the Claimant with effect from 30th January, 2015 to the final determination of this suit, as set out hereunder:
Special Damages
PARTICULARS
Upfront allowance (paid every January of the year) =N=21,875,000.00
September allowance =N=2,246,749.67
Annual leave allowance =N=2,500,000.00
Annual Passage allowance =N=3,125,000.00
Annual Holiday ticket =N=3,020,833.34
13th Month Salary (End of Year Bonus) =N=458,333.33
Club Membership Allowance of two social clubs
Bodyline Wellness Centre (=N=400,000)
Apapa Boat Club (=N=200,000) =N=600,000.00
Entertainment Allowance =N=1,875,000.00
Annual Lunch Allowance =N=1,250,000.00
Annual Security Allowance =N=1,875,000.00
Annual Utility Allowance =N=3,750,000.00
Monthly Fuel Allowance =N=60,000.00
Monthly Diesel Allowance of 880 litres at the rate
of =N=145 per litre = 880 x =N=145= =N=127,600
H. An Order directing the 1st Defendant to pay to the Claimant, the sum of =N=30,000,000.00 (Thirty Million Naira Only) or any other sum as may be determined by the Board of the Defendant representing an Executive Director’s profit sharing entitlement, due from the 1st Defendant as at 31st January, 2015 and a constant yearly payment of the Claimant’s share of the profit of the 1st Defendant until the Claimant’s employment with the Defendant is otherwise lawfully determined.
I. An order of perpetual injunction restraining the Defendants whether by themselves or through their agents, officers, privies or howsoever from taking any step in connection with or howsoever related to the threats contained in the Defendant’s letter dated 22nd January, 2015 including but not limited to debiting, charging and deducting any sums whatsoever from the Claimant’s account with the 1st Defendant and/ or harassing, intimidating and coercing the Claimant to comply with the Defendants’ letter of 22nd January, 2015.
Alternatively to (c) – (e) above,
The sum of =N=250,000,000.00 (Two Hundred and Fifty Million Naira Only) against the Defendants representing general damages for the psychological pain, inconvenience, discomfort and emotional stress, or whatsoever called caused by the Defendants to the Claimant, arising from the unlawful termination of the Claimant’s employment by the 1st Defendant.
Claimant’s solicitor’s cost assessed at =N=20,000,000.00 (Twenty Million
Naira).
k. Interest on all sums due to the Claimant or as may be awarded by the judgment of this Court at the rate of 21% per annum from the date of the institution of this action till judgment is delivered and thereafter at the same rate or any other rate this Honourable Court may deem fit till final liquidation of the judgment sum.
2. Defence and Counterclaims
The Defendants entered an appearance, filed their statement of defence and counter claims. They also frontloaded all the requisite documents as provided by the Rules of Court. The counter claims sought are as follows –
A. The sum of =N=41,794,006.59 (Forty One Million, Seven Hundred and Ninety Four Thousand Naira, Six Naira Fifty Nine Kobo) being, the total outstanding on the upfront payments to the claimant which amount she has failed, refused and/or neglected to retire on leaving the service of the Bank despite the demand to liquidate the debt.
B. 24%, being the prevailing Bank interest rate from the date of filing the counter- claim to the date of judgment.
C. 10% interest from the date of judgment to the final liquidation of the judgment debt.
D. The cost of this counter-claim.
3. Case of the Claimant
The Claimant opened her case on 27/2/17. She testified as CW1 and was led in evidence in chief by her Counsel. CW1 adopted her witness deposition made on 11/2/15 as her evidence in chief and tendered 17 documents as exhibits. The documents were admitted in evidence and marked as Exh. AA1-Exh. AA17 respectively.
The case of the Claimant as revealed by her evidence in chief is that her service was engaged on 10/1/14 vide the letters of the same day and marked as an Executive Director in the 1st Defendant Bank; that the offer of employment was duly accepted by the Claimant on the same day; that she immediately resumed work in the employment of the 1st Defendant Bank and performed her duties with key contributions to the increased productivity and revenue growth of the Bank; that the 1st Defendant vide its letter dated the 14th of January, 2015 purportedly terminated the appointment of the Claimant on the basis that her services were no longer required; that the Claimant has contested the purported termination on the basis of the nature of her appointment as an Executive Director in the 1st Defendant, being a company incorporated under the Companies and Allied Matters Act (CAMA) and that the Claimant’s appointment and removal as a Director is regulated by the provisions contained in Part IX, Chapter 1 of Companies and Allied Matters Act (CAMA); that the Claimant’s contention is that she was not given notice of the Meeting where the purported “board’s decision to terminate” her appointment with the 1st Defendant was made and that her employment can only be terminated in accordance with the relevant statutory provisions regulating her contract; that consequently, the Claimant further contends that her employment with the Bank subsists and that she is entitled to full remuneration and other benefits, allowances, emoluments and other payments agreed to by the 1st Defendant.
Under cross examination, the witness stated that she rose to Management position in the banking sector; that Exh. AA16 was not signed by the Defendant; that a Bank collects deposit, keeps deposit, gives loan and recovers loan and treasury activities; that some distress Banks go to Lender of last Resort which is Central Bank of Nigeria which borrows them money to run their business; that the 1st Defendant belongs to that category; that it is to transform the Bank – 1st Defendant that she was employed to bring in best practices to 1st Defendant; that she was with Access Bank for 10 years; that she was promoted to General Manager at Access Bank; that she resigned on her own volition; that she attended an interview with 1st Defendant; that she was not asked why she left Access Bank; that she did not say she would mobilise =N=50 Billion within a year of joining 1st Defendant; that she did not see any other applicant at the interview and she did not apply for the job; that she was not privy to the result of the interview; that she does not know what 2nd Defendant scored her; that she was not privy to the scoring at the interview; that to a large extent she keeps records meticulously; that the documents evidencing the financial mobilization she did for 1st Defendant are with 1stDefendant; that the documents are verifiable in the customer’s account with 1st Defendant and that she does not have the documents before the Court.
The witness further added that she is aware that Executive and Board take decision for the Bank that is Executive Manager and Board of Directors; that what was obtainable in the Banking sector was not was obtainable in the 1st Defendant; that at 1st Defendant, the Managing Director usually takes unilateral decision in everything; that she is not aware of any Board meeting; that she was not called to defend any allegation against her; that she was a member of the Board while with 1st Defendant; that decisions are taken at Board meetings; that the Company Secretary along with the Managing Director communicate decisions of the Board to Staff; that the Board of 1st Defendant approved her appointment together with Central Bank of Nigeria and letter signed by Company Secretary and Managing Director; that decisions are often unilaterally taken and not in line with approval; that she observed that practices which were not best practices were on at 1st Defendant; that there were such incidents while she was a member of the Board; that she was not in agreement of such decisions; that if a staff is exited properly there would be no issue of payment of salary; that as at 14/1/15 to date she believes she is still a staff of the 1st Defendant and that she was paid upfront payment in line with her remuneration package.
4. Case of the Defendants
The Defendants jointly opened their defence on 31/5/17. They both called one Alaba Williams as their sole witness. The witness adopted his witness depositions dated 6/3/15 and 21/9/16 as his evidence in chief and tendered 27 documents as exhibits. The documents were admitted and marked as Exh. AW1-Exh. AW27 respectively.
The case of the Defendant is that it employed the Claimant on or about the 10/1/14; that in addition to the letter of appointment and in accordance with the Bank’s policy, the parties were to execute a contract of service containing the terms and conditions of service of the Claimant; that consequently, a draft copy of the said contract was forwarded to the Claimant for execution; that rather than execute the contract the Claimant made a counter-offer by asking for a review of some of the terms as contained in her notes on page 4 of the contract; that one of the observations/counter-offers made by her i.e. the mobilization of =N=50,000,000,000 (Fifty Billion Naira) was part of the Claimant’s promises during the course of her interview for the job with the Compensation and Appointment Committee of the 1st Defendant; that on assumption of office, it was discovered that the Claimant was incompetent and could not meet her target of mobilizing =N=50,000,000,000.00 (Fifty Billion Naira) deposit for the Bank thus prompting the 1st Defendant through the 2nd Defendant as the Managing Director to query her poor performance vide the 1st Defendant’s letters of December 19, 2014 and January 7, 2015; that the Claimant’s response to the query was further considered by the 1st Defendant’s Board Governance and Nomination Committee meeting held on the 13th January, 2015 wherein the Committee decried her poor performance, failure to execute the contract of service and her general attitude and thereafter recommended the termination of her appointment to the Board of Directors; that consequently, by a letter dated January 14th, 2015, the inchoate appointment of the Claimant with the Bank was terminated on the grounds of Service No Longer Required; that the 1st Defendant has in her defence, counter-claimed against the Claimant on the grounds that on being employed by the Bank, the Bank paid her some allowances upfront which allowances are deductible pro-rata upon any staff leaving the employment of the company; that the Claimant was also, as part of the facilities to enhance her work, given a brand new Jeep as official vehicle and a Generator for her official residence, and her salary advance and allowances and that the Claimant on leaving the service of the 1st Defendant did not return the car, the Generator and the balance of the upfront allowances and bonuses to the Bank (Defendant/Counter-Claimant) in accordance with the practice of the Bank and in the industry.
While being cross examined, the witness testified that apart from Board of Directors there are other Committees of Board; that Compensation and Appointment Committee is one of them; that he does not know if Claimant was a member of that Committee; that Governance and Nomination Committee is also one of them; that he does not know if Claimant is a member of that Committee; that he could not recollect if the Governance and Nomination Committee sat on 13/1/15; that he now confirms that the Committee sat on that day having been shown Exh. AW 27 1-4 ; that he could not see the name of the Claimant on the List of Directors as shown in Exh. AA9; that he could not remember the date the Board resolved to terminate employment of the Claimant; that he is aware Claimant was issued query by the 2nd Defendant and that Claimant answered same; that he is not aware of any notice from Defendant of intention to sack the Claimant; that he was not present at the Board meeting where decision was taken to sack the Claimant; that no resolution of the Board to sack Claimant was sent to her; that he does not know if the Claimant was given notice of meeting where decision was taken to sack her; that the signature on Exh. AA16 1-4 looks like that of the Claimant; that the Claimant is liable to pay back about =N=41 Million to the Defendant being money paid to her while in the employment of the 1st Defendant; that some of the payments were upfront; that payments to enable Claimant settle down and work tools such as Cars; that Claimant’s appointment was confirmed by regulatory authorities; that there was no date on the contract of employment and that he is not aware that it was signed by Claimant and served on 2nd Defendant a week before her appointment was terminated.
5. Submissions of learned Counsel
Learned Counsel to the Defendants filed a 24-page final written address on 27/10/18 and set down the following 2 issues for the just determination of this case – 1. Whether having regards to the pleadings and evidence adduced by the Claimant in this suit, this Court can grant the relief she seeks against the Defendants whether jointly or severally and 2. Whether having regards to the pleadings and evidence put before this Court, the 1st Defendants ought to succeed in their Counter-Claims against the Claimant. In reaction to the final written address of the Defendants, learned senior Counsel to the Claimant filed a 44-page final written address. In it the learned silk canvassed the following issues for determination – 1. Whether the 1st Defendant complied with the provisions of the Companies and Allied Matters Act in terminating the employment of the claimant. If No, whether the purported termination of the Claimant’s employment is not liable to be set aside and the Claimant granted the reliefs sought in her Complaint. 2. Whether the Defendant/Counterclaimant is entitled to judgment against the Claimant as per the reliefs sought in the Counterclaim. I carefully read all these written addresses and I have a clear understanding of them all. I shall make ample reference to them in the course of this Judgment where necessary.
6. Decision
I am conversant with the facts of this case having carefully read and understood all the processes filed by learned Counsel on either side. I listened patiently to the testimonies of the witnesses called at both in chief as well as under cross examination. I also watched their demeanor. In addition to all this, I heard the oral submissions of learned Counsel for the parties during adoption of final written addresses and I carefully evaluated all the exhibits tendered and admitted. Having done all this, I set down the following issues for the just determination of this case –
1. Whether considering the circumstances of this case and the state of the law the appointment of the Claimant was validly terminated by the 1st Defendant.
2. Whether the Claimant is entitled to all or some of the reliefs sought.
3. Whether the Defendants are entitled to any or all the counter claims sought.
It appears to me that the facts of this case are rather simple and straightforward. From the pleadings filed by either side, it appears that there is a consensus on the fact that the Claimant was employed by the 1st Defendant as an Executive Director, that the 2nd Defendant was the Managing Director at the time; that the Claimant was given a letter of appointment by the 1st Defendant duly signed; that the appointment of the Claimant was approved and confirmed by the Central Bank of Nigeria being the regulatory body in the banking industry; that as an Executive Director, the Claimant was entitled to receive Notices of Board Meetings of the 1st Defendant and that the employment of the Claimant was terminated by the 1st Defendant on ground of service no longer required.
Now the reliefs sought by the Claimant in this case are not only numerous but enormous. However, critical to the determination of Claimant’s entitlement to all or some of those reliefs is the determination of whether or not the termination of the employment of the Claimant was valid. For, the reliefs sought hinged on the contention that the proper procedure for termination of the appointment of the Claimant was not followed. It was argued before me by the learned Counsel to the Defendants that the Claimant has the burden of proving her entitlement to the reliefs sought; that in doing so the Claimant must exhibit before the Court the applicable terms and conditions of her engagement by the Defendants and that in the instant case there is no contract exhibited by the Claimant. My attention was drawn by the learned Counsel to the Defendants to the fact that Exh. AA16 was not executed by the Defendants. I have perused Exh. AA16. It is a document titled Contract of Employment for Executive Director. It was duly executed by the Claimant with handwritten comments respecting observations made. I take it that those observations were expected to be included in or taken into consideration in the contract. The contract was not executed by the Defendants as rightly noted by Counsel. However, I further note that the said Exh. AA16 which was meant to contain the terms and conditions respecting the appointment of the Claimant was not dated. Even when the Claimant signed her part in the presence of a witness, that document was not dated. The law is clear respecting unsigned and/or undated document. Such a document has no evidential utility and cannot be relied upon by the Court for the purpose of doing justice in a cause or matter. See Wema Bank Plc & Anor. v. Alaran Frozen Foods Agency Nigeria Limited & Anor. (2015)LPELR-25980 (CA). Though admitted at trial, the Court is permitted at the time of evaluation to expunge such wrongly admitted exhibited from the record of proceedings. See Onochie v. Odogwu (2006)All FWLR (Pt. 317) 544 & Durosimi v. Adeniyi & Anor. (2017) LPELR (CA). Consequently therefore, I find and hold that Exh. AA16 is not reliable and has no judicial assistance to this Court in the just determination of this case. Same is thus expunged from this case.
It has been argued before me that in the absence of terms and conditions of engagement then the Common Law principles are to be applied to the relationship between the parties in this case and that hence an employer continues to have the right to determine an employment relationship at any time for any reason and for no reason at all. I may reiterate albeit in the passing that the Common Law right and power of an employer as stated by the learned Counsel to the Defendants is a true representation of the position of the law and there are plethora of judicial authorities in support of same. See Mohammed Salihu v. Fougerolle-Fougerolle Nigeria Plc (2002) LPELR-7129 (CA).
I should be quick however to add that that is only where the relationship of the parties are regulated by the Common Law. In the instant case, there is no controversy respecting the fact that the Claimant was appointed as Executive Director in the Defendant. That appointment was made by the Board of Directors of the 1st Defendant. See Exh. AA1 & Exh. AA2. It is certainly wrong to equate the status of Directors of a Company with that of ordinary staff or employee of the Company. Strictly speaking the appointment and removal of Directors of incorporated Companies is statutorily regulated by the Companies and Allied Matters Act Cap. C20, Laws of the Federation of Nigeria, 2004. The appointment of the Claimant was terminated by Exh. AA8 dated 14/1/15. That exhibit allegedly conveyed ”the Board’s decision to terminate your appointment with the bank with immediate effect for Services No Longer required”. The date of the alleged Board’s decision was not contained on that exhibit. Did the Defendants comply with the procedure for removal as it relates to the Claimant in this case?
The Companies and Allied Matters Act provides for Removal of directors in Section 262. The section states thus –
(1) A company may by ordinary resolution remove a director before the expiration of his period of office, notwithstanding anything in its articles or in any agreement between it and him
(2) A special notice shall be required of any resolution to remove a director under this section, or to appoint some other person instead of a director so removed, at the meeting at which he is removed, and on receipt of notice of an intended, resolution to remove a director under this section, the company shall forthwith send a copy of it to the director concerned, and the director (whether or not he is a member of the company) shall be entitled to be heard on the resolution at the meeting.
(3)Where notice is given of an intended resolution to remove a director under this section and the director concerned makes with respect to it representations in writing to the company (not exceeding a reasonable length) and requests their notification to members of the company, the company shall, unless the representations are received by it too late for it to do so-
(a) in any notice of the resolution given to members of the company, state the fact of the representations having been made; and
(b) send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company), and if a copy of the representations is not sent as required in this section because it is received too late or because of the company’s default, the director may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting:
Provided that copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter and the court may order the company’s costs on an application under this section to be paid in whole or in part by the director, notwithstanding that he is not a party to the application.
(4)A vacancy created by the removal of a director under this section, if not filled at the meeting at which he is removed, may be filled as a casual vacancy.
(5)A person appointed director in place of a person removed under this section shall be treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become director on the day on which the person in whose place he is appointed was last appointed a director.
(6)Nothing in this section shall be taken as depriving a person removed under it of compensation or damages payable to him in respect of the termination of his appointment as a director or of any appointment terminating with that as director, or as derogating from any power to remove a director which may exist apart from this section.
The provisions quoted above are clear and not susceptible to any other interpretation other than what they say. It deals with removal of directors as well as the procedure to follow in achieving that end. Again, I say that there is no controversy to the fact that the Claimant was appointed as an Executive Director of the 1st Defendant. That being the case, for her to be removed, the Defendants have no choice than to comply with the mandatory provisions of Section 262 of CAMA. Did the Defendants comply with the due process stated in section 262? It is the argument of the Claimant that the Defendants did not follow that process and particularly that she was not given a notice of meeting where the decision of the Board of the 1st Defendant was reached to remove her. Again, the Companies and Allied Matters Act in section 266 deals with issues relating to notice of meeting. The section provides as follows –
266(1).Every director shall be entitled, to receive notice of the directors
meetings, unless he is disqualified by any reason under the Act from
continuing with the office of director.
(2).There shall be given fourteen days notice in writing to all directors entitled to receive notice unless otherwise provided in the articles.
(3). Failure to give notice in accordance with subsection (2) of this section shall invalidate the meeting.
(4).Unless the articles otherwise provide, it shall not be necessary to give notice of a meeting of directors to any director for the time being absent from Nigeria; provided that if he has given an address in Nigeria, the notice shall be sent to such an address.
There are exceptions under section 257 of Companies and Allied Matters Act of persons or directors of a company who may not be served notice of meetings. These include a person under the age of 18 years, a lunatic or person of unsound mind, a person disqualified under Sections 253, 254 and 258 of CAMA and
a Corporation other than its representative appointed to
the Board for a given term. These groups or category of persons are disqualified from being directors.
The statutory provision of service of notice of meeting on director is a mandatory one. No company is allowed to depart from it. That being the case, the effect of combined reading of Sections 262 and 266 of CAMA is that for a Director to be removed, s/he must be served the requisite notice of meeting. I dare say that the notice of meeting must also include the agenda for the meeting. With that a Director is a liberty to decide to attend or not to attend the meeting. Once a notice of the meeting is served a Director who elects not to attend cannot claim ignorance of the meeting and is deemed bound by whatever decision is taken there. Was the Claimant entitled to a notice of meeting as a Director of the 1st Defendant? I answer in the affirmative. Was she given the notice as mandatorily required by the statute? I answer in the negative. The consequence of failure to serve notice is contained in subsection 3 of section 266 of CAMA and it is that it shall invalidate the meeting. In other words failure to serve notice renders both the meeting and all decisions taken there invalid.
The interpretation of the combined reading of Sections 262 and 266 of CAMA came up for consideration by the Supreme Court in Bernard Ojeifor Longe v. First Bank of Nigeria Plc (2010) LPELR-1793(SC).
The facts in that case which would seem to on all fur with the instant case are that
the Plaintiff was appointed the Managing Director/Chief Executive of the Defendant on24-2-2000. Before that date, the Plaintiff had been the Defendant’s Executive Director. Following an improper grant of loan to a customer of the defendant, the Plaintiff was on 22-04-02 suspended by the defendant’s Board of Directors, and on 13-06-02 his appointment was revoked. The plaintiff was not given the Notice of the meeting of the Board of Directors of the defendant at which the decision to terminate his appointment was taken. It was Plaintiff’s contention that under Section 266 of Companies and Allied Matters Act he was entitled to be given Notice of the meeting and that the failure to give him such notices would render his termination null and void. The Supreme Court per Adekeye JSC in nullifying the removal of the Plaintiff in that case said –
“What then is the procedure for removal of a Director – under CAMA which is relevant to the case in hand. Section 262 of Companies and Allied Matters Act Cap Laws of the Federation 1990 reveals as follows:- 262 Removal of Directors- (1) A company may by ordinary resolution remove a director before the expiration of his period of office notwithstanding anything in its article or in any agreement (2) A special Notice shall be required of any resolution to remove a director under this section or to appoint some other person instead of a director so removed at the meeting at which he is removed, and on receipt of notice of an intended resolution to remove a director under this section, the company shall forth with send a copy of it to the director concerned and the director whether or not he is a member of the company shall be entitled to be heard on the removal. There is no power to remove a director under CAMA which shall be taken as derogating from any power to remove a director which may exist apart from this section. The power to remove a Director under the Article of Association of the respondent is made subject to the provisions of CAMA. Obviously the foregoing procedure from printed Record was not complied with in revoking the employment of the appellant by the Board of Directors of the respondent. CAMA has removed the appellant though a full time employee of the respondent at the time of his dismissed from the sanction in the provision of the Employee Code summary dismissal from the service of the bank for misconduct”.
I note that for reasons best known to the Defendants they chose not to address the issue of service of requisite notice of meeting on the Claimant. The pleadings of the Defendants were silent on this. Secondly, Exh. AA8 which is the letter conveying the alleged Board’s decision to terminate the appointment of the Claimant did not state the date of the alleged meeting where the decision was taken. I find and hold that the Claimant was entitled to be served but not served notice of the Board meeting as required by law. I declare that her removal was in violation of the provision of the Companies and Allied Matters Act particularly Section 266(1) &(2) and the violation renders the meeting invalid by virtue of Section 266(3). I therefore pronounce the said removal of the Claimant invalid. I resolve Issue 1 in favor of the Claimant and against the Defendants. The Claimant must be deemed to be and still is the Executive Director of the 1st Defendant. I so pronounce it.
The second issue for determination is whether the Claimant is entitled to all or some of the reliefs sought. Cognizance of the resolution of issue 1 and the various findings and holdings thus far I declare that the purported termination of the employment of the Claimant by the 1st Defendant contained in the letter dated 14th January, 2015, is unlawful, null and void, invalid and of no effect whatsoever. Secondly, I set aside the 1st Defendant’s purported letter of termination dated the 14th January, 2015 as unlawful, null and void, invalid and of no effect whatsoever. Thirdly, I declare that the Claimant is a subsisting Executive Director of the 1st Defendant and entitled to continue to enjoy all the entitlements, benefits, emoluments and all other rights and or privileges attached or appertaining to the office and position of Executive Director of the 1st Defendant. Fourthly, I direct the 1st Defendant to effect payment of the monthly sum of =N=l,381,750.00 (One Million, Three Hundred and Eighty One Thousand, Seven Hundred and Fifty Naira Only) to the Claimant (excluding the months of January, April, July and October) commencing from 30th January, 2015 till the date of this Judgment, the said sum representing the gross amount due from the 1st Defendant to the Claimant as monthly basic salary, excluding other allowances, benefits and entitlements in every month exclusive of January, April, July and October.
I find sufficient credible and cogent evidence in support of the claim for payments of various allowances sought by the Claimant. See Exh. AA11 & Exh. AW18. I thus order and direct the 1st Defendant to effect payment of the quarterly net monthly sum of =N=2,194,666.00 (Two Million, One Hundred and Ninety-Four Thousand and Six Hundred and Sixty-six Naira Only) paid in the months of January, April, July and October to the Claimant commencing from 30th January, 2015 till the date of this Judgment 27/9/18, the said sum representing the gross amount due from the 1st Defendant to the Claimant as quarterly net salary, excluding other allowances, benefits and entitlements in every January, April, July and October.
In addition, I order and direct the 1st Defendant to pay to the Claimant, the allowances, benefits and other entitlements due and or may become due and or continue to accrue to the Claimant with effect from 30th January, 2015 to the date of this Judgment, as set out hereunder:
Special Damages
PARTICULARS
Upfront allowance (paid every January of the year) =N=21,875,000.00
September allowance =N=2,246,749.67
Annual leave allowance =N=2,500,000.00
Annual Passage allowance =N=3,125,000.00
Annual Holiday ticket =N=3,020,833.34
13th Month Salary (End of Year Bonus) =N=458,333.33
Club Membership Allowance of two social clubs
Bodyline Wellness Centre (=N=400,000)
Apapa Boat Club (=N=200,000) =N=600,000.00
Entertainment Allowance =N=1,875,000.00
Annual Lunch Allowance =N=1,250,000.00
Annual Security Allowance =N=1,875,000.00
Annual Utility Allowance =N=3,750,000.00
Monthly Fuel Allowance =N=60,000.00
Monthly Diesel Allowance of 880 litres at the rate
of =N=145 per litre = 880 x =N=145= =N=127,600
The Claimant also sought an Order directing the 1st Defendant to pay to the Claimant, the sum of =N=30,000,000.00 (Thirty Million Naira Only) or any other sum as may be determined by the Board of the Defendant representing an Executive Director’s profit sharing entitlement, due from the 1st Defendant as at 31st January, 2015 and a constant yearly payment of the Claimant’s share of the profit of the 1st Defendant until the Claimant’s employment with the Defendant is otherwise lawfully determined. I find no evidence led in support of this relief. It is not clear how the Claimant arrived at the figure. In the same vein, I find no evidence respecting Executive Director’s profit sharing entitlement. I refuse this head of relief for lack of proof.
The final relief sought by the Claimant is for an order of perpetual injunction against the Defendants and their agents. The relief of perpetual injunction is a consequential order which should naturally flow from the declaratory order sought and granted by the Court. Essentially, the imperative of this hybrid injunction is to prevent permanently the infringement of those rights and to obviate the necessity for bringing multiplicity of suits in respect of every repeated infringement. See Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. (2012) LPELR-9349(SC). Perpetual injunction is only grantable after a trial and the applicant has established an actual or threatened infringement of his rights. Having reviewed and evaluated all the evidence tendered and admitted in this case, I find and hold that the Claimant has established and proved her right and entitlement to this relief. This Court having found and held the termination of the appointment of the Claimant to be invalid for non-compliance with statutory requirement of serving notice of meeting, the Claimant is bound to be entitled to an order of injunction as sought. The Defendant is here restrained by an order of perpetual injunction whether by themselves or through their agents, officers, privies or howsoever from taking any step in connection with or howsoever related to the threats contained in the Defendant’s letter dated 22nd January, 2015 including but not limited to debiting, charging and deducting any sums whatsoever from the Claimant’s account with the 1st Defendant and/ or harassing, intimidating and coercing the Claimant to comply with the Defendants’ letter of 22nd January, 2015.
Having granted the prayers sought by the Claimant, the alternative prayer for the sum of =N=250,000,000.00 as general damages for the psychological pain, inconvenience, discomfort and emotional stress, or whatsoever called caused by the Defendants to the Claimant, arising from the unlawful termination of the Claimant’s employment by the 1st Defendant is here refused. I find no proof of the sum of =N=20,000,000.00 sought as Claimant’s Solicitor’s fees. Same is therefore refused and dismissed. All the sums due to the Claimant under and by virtue of this Judgment shall be paid with 15% interest per annum from the date of this Judgment until final liquidation.
The final issue for determination is whether the Defendants are entitled to any or all the counter claims sought. The counter claims sought by the Defendants are predicated on the basis that the appointment of the Claimant was validly terminated and Claimant validly removed as an Executive Director of the 1st Defendant. This Court has found and held that the Defendants failed to comply with the requisite statutory provisions on removal of any of its Directors and the Claimant in particular. The basis of that removal having been faulted and held invalid, the foundation of the counter claims is shattered. I find and hold that the counter claims are not proved. I therefore refuse and dismiss same.
Before I draw curtain on this Judgment, I cannot but make a comment or two on this case. The appointment of the Claimant was allegedly terminated by Exh. AA8 on 14/1/15. This case was instituted on 11/2/15. The basis of the case of the Claimant was failure to serve on her notice of meeting as required. Notwithstanding this fact, the Defendants could have withdrawn same and take proper steps which would have saved the time and money expended in this litigation.
Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment –
1. I find and hold that the Claimant was entitled to be served but not served notice of the Board meeting as required by law.
2. I declare that her removal was in violation of the provision of the Companies and Allied Matters Act particularly Section 266(1) &(2) and the violation renders the meeting invalid by virtue of Section 266(3).
3. I declare that the purported termination of the employment of the Claimant by the 1st Defendant contained in the letter dated 14th January, 2015, is unlawful, null and void, invalid and of no effect whatsoever.
4. I set aside the 1st Defendant’s purported letter of termination dated the 14th January, 2015 as unlawful, null and void, invalid and of no effect whatsoever.
5. I declare that the Claimant is a subsisting Executive Director of the 1st Defendant and entitled to continue to enjoy all the entitlements, benefits, emoluments and all other rights and or privileges attached or appertaining to the office and position of Executive Director of the 1st Defendant.
6. I direct the 1st Defendant to effect payment of the monthly sum of =N=l,381,750.00 (One Million, Three Hundred and Eighty One Thousand, Seven Hundred and Fifty Naira Only) to the Claimant (excluding the months of January, April, July and October) commencing from 30th January, 2015 till final determination of the instant suit, the said sum representing the gross amount due from the 1st Defendant to the Claimant as monthly basic salary, excluding other allowances, benefits and entitlements in every month exclusive of January, April, July and October.
7. I thus order and direct the 1st Defendant to effect payment of the quarterly net monthly sum of =N=2,194,666.00 (Two Million, One Hundred and Ninety-Four Thousand and Six Hundred and Sixty-six Naira Only) paid in the months of January, April, July and October to the Claimant commencing from 30th January, 2015 till final determination of the instant suit, the said sum representing the gross amount due from the 1st Defendant to the Claimant as quarterly net salary, excluding other allowances, benefits and entitlements in every January, April, July and October.
8. I order and direct the 1st Defendant to pay to the Claimant, the allowance, benefits and other entitlements due and or may become due and or continue to accrue to the Claimant with effect from 30th January, 2015 to the final determination of this suit, as set out hereunder:
Special Damages
PARTICULARS
Upfront allowance (paid every January of the year) =N=21,875,000.00
September allowance =N=2,246,749.67
Annual leave allowance =N=2,500,000.00
Annual Passage allowance =N=3,125,000.00
Annual Holiday ticket =N=3,020,833.34
13th Month Salary (End of Year Bonus) =N=458,333.33
Club Membership Allowance of two social clubs
Bodyline Wellness Centre (=N=400,000)
Apapa Boat Club (=N=200,000) =N=600,000.00
Entertainment Allowance =N=1,875,000.00
Annual Lunch Allowance =N=1,250,000.00
Annual Security Allowance =N=1,875,000.00
Annual Utility Allowance =N=3,750,000.00
Monthly Fuel Allowance =N=60,000.00
Monthly Diesel Allowance of 880 litres at the rate
of =N=145 per litre = 880 x =N=145= =N=127,600
9. I refuse and dismiss claim for the sum of =N=30,000,000.00 (Thirty Million Naira Only) or any other sum as may be determined by the Board of the Defendant representing an Executive Director’s profit sharing entitlement for lack of proof by cogent and credible evidence.
10. The Defendants are here restrained by an order of perpetual injunction whether by themselves or through their agents, officers, privies or howsoever from taking any step in connection with or howsoever related to the threats contained in the Defendant’s letter dated 22nd January, 2015 including but not limited to debiting, charging and deducting any sums whatsoever from the Claimant’s account with the 1st Defendant and/ or harassing, intimidating and coercing the Claimant to comply with the Defendants’ letter of 22nd January, 2015.
11. The claim in alternative for the sum of =N=250,000,000.00 as general damages for the psychological pain, inconvenience, discomfort and emotional stress, or whatsoever called caused by the Defendants to the Claimant, arising from the unlawful termination of the Claimant’s employment by the 1st Defendant is here refused for lack of proof.
12.I find no proof of the sum of =N=20,000,000.00 sought as Claimant’s Solicitor’s fees. Same is therefore refused and dismissed.
13. I find and hold that the counter claims are not proved.
I refuse and dismiss same.
All the sums due to the Claimant under and by virtue of this Judgment shall be paid with 15% interest per annum from the date of this Judgment until final liquidation. All the terms of this Judgment shall be complied with within 30 days from today.
Judgment is entered accordingly.
____________________
Hon. Justice J. D. Peters
Presiding Judge
