CADBURY NIG. PLC. v. OLUBUNMI O. ONI
(2012)LCN/5720(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of December, 2012
CA/L/347/2011
RATIO
WORDS AND PHRASES: MEANING OF MISCONDUCT
It is trite, that the term “misconduct” denotes a dereliction of duty; unlawful or improper behaviour. Thus, serious misconduct or gross misconduct, denotes serious dereliction (of duty), unlawful or improper behaviour. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
LABOUR LAW: WHETHER AN EMPLOYER HAS THE RIGHT TO DISMISS AN EMPLOYEE SUMMARILY
Indeed, it’s a settled common law principle, that an employer has the liberty or right to dismiss the employee thereof summarily, for gross misconduct. However, what constitutes a serious or gross misconduct of an employee is a question of fact and degree. The misconduct in every given circumstance must be such as to undermine the relationship of trust and confidence supposedly existing between the employer and the employee. See NWOROSI v. ACB (1995) 6 NWLR (pt. 404) 658; 686 paragraph D; YUSUF v. UNION BANK (1996) 6 NWLR (pt. 457) 632; 648 paragraph B. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
COURT: WHETHER CONDUCTS AMOUNTING TO CRIME IS A CRIMINAL TRIBUNAL ISSUE
it’s a well settled fundamental principle, that:-
“Conducts amounting to crime must first be a matter for the criminal tribunal (Court) before disciplinary issue.”
See FCSC v. LAOYE (1989) 2 NWLR (Pt. 106) 652 at 679 – 680 per Kayode Eso, JSC (of blessed, and most remarkable memory).
Indeed, it was in LAOYE’S case (supra) that Eso, JSC (of blessedly remarkable memory) was recorded to have aptly reviewed the plethora of the early authorities of the Apex Court, regarding the issue in question. Such early authorities (decisions) chronicled by Eso, JSC in LAOYE’S case included the following:-
(i) DENLOYO v. MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY COMMTTTEE (1968) 1 ALL NLR 306;
(ii) DR. O. G. SOFEKUN v. CHIEF N. O. A. AKINYEMI & 3 ORS. (1990) 5-7 SC;
(iii) EPEROKUN v. UNIVERSITY OF LAGOS (1986) 4 NWLR (Pt. 34) 162;
(iv) OLATUNBOSUN v. NISER (1988) 3 NWLR (Pt. 80) 25;
(v) GARBA v. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 18) 556;
(v) ADIGUN v. AG, OYO STATE (1987) 1 NWLR (Pt. 53) 678;
(vii) SHITTA-BEY v. FEDERAL CIVIL SERVICE COMMISSION (1981) 1 SC 40.
In all the above authorities, the conclusion thereby reached by the Supreme Court is to the effect, inter alia, that it’s only a court of jurisdictional competence that has the power to entertain and adjudicate upon criminal matters. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
CONTRACT: ONEROUS DUTY OF THE COURT IN RELATION TO AGREEMENT LAWFULLY ENTERED
Indeed, it’s a trite and well settled principle, that the onerous duty of the Court is to simply interpret and enforce the agreement lawfully entered – in to by parties.
Thus, the court lacks the jurisdictional competence to make a contract for the parties. See IBAMA v. SPDC (2005) 17 NWLR (Pt. 954) 364; IFETA v. SPDC (NIG.) LTD. (2006) 8 NWLR (Pt. 983) 585; PACERS MULTI-DYNAMIC LTD v. THE MV. DANCING SISTER & ANOR. SC. 238, 2001 (unreported) at 28 respectively.
Most particularly, in the case of IBAMA v. SPDC (NIG) LTD. (supra), the Supreme Court was reported to have aptly, and rather authoritatively, held that:-
It is trite law that the court can only interpret or enforce the agreement entered into by the parties and is in capable of making any contract between them. Per ONNOGHEN, JSC at 391, paragraph G. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
LABOUR LAW: DUTY OF AN EMPLOYEE IN A CASE REGARDING WRONGFUL DISMISSAL
Instructively, it’s equally a trite doctrine, that in a case regarding a wrongful dismissal or termination of employment, it’s incumbent upon the employee to:-
(i) place before the court the terms (and conditions) of the contract of employment entered in to between him and the employer thereof; and
(ii) to prove or establish the circumstances in which the terms (and conditions) of the contract of employment in question have been breached by the employer thereof.
Thus, it does not at all behove upon the employer to prove any breach of the terms (and conditions) of contract of employment regarding thereof. See KATTO v. CBN (1999) 6 NWLR (Pt. 607) 390; AMODU v. AMODE (1990) 5 NWLR (Pt. 150) (1994) 7 NWLR (Pt.357) 379; IBAMA v. SPDC (NIG.) LTD. (supra) at 378 – 329 paragraphs G – A; 388 paragraphs G – D, respectively. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CIVIL CASES
By virtue of the provisions of section 137 (1) of the Evidence Act in Civil cases, the burden of proving the existence or non-existence of a fact lies upon the party against whom judgment would be given if no evidence were adduced by either party; regard being had to any presumption that may arise in the pleadings. See
OYOVBIARE v. OMAMURAOMU (1999) 10 NWLR (Pt.23) 34 – 35; GARBA v. ZARIA (2005) 17 NWLR 953; TEWOGBADE v. AKANDE (1968) NWLR 404. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
FAIR HEARING: PRINCIPLE OF FAIR HEARING
Yet, the position of the law is most unequivocal regarding the issue. Under section 36(1) of the 1999 Constitution, as amended, it has been most cherishingly provided that:
(1) In the determination of his rights and obligations, including any question of determination by or against any government or authority, a person shall be entitled to a fair hearing within the reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
Afortiori, in the notorious case of FCSC v. LAOYE (supra), the Supreme Court was reported to have aptly and rather emphatically held, inter alia, that:
There can be no doubt that the Respondent has had every serious charges leveled against him. In fact he has been accused of grave crimes, which if proved, will amount not only to felonious crime but also border on economic sabotage of the nation. A person so accused is entitled to be confronted with his crimes, be told the nature and content of the case against him, be brought face to face with accusers and their witnesses that he wishes to call to support his case, all this within a reasonable time and before a Court or tribunal constituted in such a way to ensure its fairness and impartiality. Per NNAEMEKA AGU, J.S.C. (of blessed memory) at 727, paragraphs A – B. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES:
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
CADBURY NIG. PLC. – Appellant(s)
AND
OLUBUNMI O. ONI – Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Lagos State, Ikeja Judicial Division, which was delivered by the Hon. Justice A. A. Phillips, J. (as the learned trial Judge then was) on November 12, 2010 in Suit No. 1D/609/2008. By the Judgment in question, the Court below granted the Respondent’s claim in part, and dismissed the Appellant’s Counter-Claim in its entirety. Being dissatisfied with the vexed Judgment, the Appellant filed the Notice of Appeal thereof on 25/01/2011 in the Court below.
BACKGROUND FACTS: –
The genesis of the present appeal is traceable to April 16, 2008. That was the day the Respondent filed in the Court below a Writ of Summons and Statement of Claim, seeking some declaratory reliefs and damages for negligent breach of contract and malicious dismissal. By the Statement of Claim thereof, dated 15/4/08 but filed on 16/4/08, the Respondent claimed the following reliefs against the Appellant:-
(1) A Declaration that the purported dismissal of the Claimant by a letter dated 11th December 2006 signed by Imo J. Itsueli (Chairman of the Board) is wrongful, unlawful and is a repudiatory breach of the Claimant’s contract of employment.
(2) An order for payment to the Claimant of his rights and entitlements accruing until 6 months from the wrongful termination of his employment on 11th December 2006.
(3) Damages for wrongful dismissal and premature loss of employment and income for the 7 years remaining to retirement age.
(4) Damages for breach of the duty of Trust and confidence and deliberate, reckless or negligent injury to reputation and employability – N10,000,000.
(5) Damages for negligent breach of contract and malicious dismissal with intent to injure the credit and reputation of the Claimant.
(6) Costs.
By the amended Statement of Defence and Counter-Claim thereof, filed on 24/9/09, the Appellant denied the Respondent’s claim in its entirety. The Appellant equally counter-claimed against the Respondent for loss and damages, viz:
23.1. N2,822,819,000 (two billion, eight hundred and twenty-two million, eight hundred and nineteen thousand naira) was written off in the Defendant’s 2006 accounts in respect of fictitious stock.
23.2. Dividends of N1,601,345,000 (One billion, six hundred and one million, three hundred and forty-five thousand naira) paid out in 2004.
23.3. Dividends of N1,303,154,000 (One billion, three hundred and three million, one hundred and fifty-four thousand) paid in 2005.
23.4. Corporation tax of N1,036,650,000 (One billion, thirty six million, six hundred and fifty thousand) paid in 2004.
23.5. Corporation tax of N1,142,173,000 (One billion, one hundred and forty-two million, one hundred and seventy- three thousand naira) paid in 2005.
23.6. N200 million incurred as legal fees to defend the Defendant in proceedings before SEC and thereafter.
23.7. N148 million paid to PWC for investigating the overstatements.
23.8. GBP90,000 unauthorized payments received by Claimant.
Pleadings having been filed and served, the suit eventually proceeded to trial. At the conclusion of which, the Court below delivered the vexed Judgment, on 12/11/10, to the conclusive effect thus:-
“In conclusion therefore, the Claimant’s claims succeed in part while the Defendant’s Counter-Claim fails in its entirety.”
IT IS THEREFORE HEREBY ADJUDGED AS FOLLOWS:-
1. A Declaration shall be and is hereby made that the purported dismissal of the Claimant by a letter dated 11th December 2006 signed by Imo J. Itsueli (Chairman of the Board) is wrongful unlawful and is a repudiatory breach of the Claimant’s contract of employment.
2. An Order for payment to the Claimant of his rights and entitlements accruing until 6 months from the wrongful termination of his employment on 11th December 2006 shall be and is hereby made.
3. Claims 3, 4 and 5 of the Claimant’s claims are refused and are accordingly dismissed.
4. The Counter-Claim of the Defendant fails in its entirety and is dismissed.
5. N100,000.00 costs to the Claimant.
On 29/11/10, the Appellant filed the Notice of Appeal thereof in the lower Court, seeking the following reliefs: –
“(i) An Order allowing the appeal.
(ii) An Order setting aside the decision of Hon. Justice Phillips dated 12th November, 2010.”
On 25/01/11, the Appellant filed another Notice of Appeal which is predicated upon a total of six Grounds of Appeal, thereby seeking the following reliefs: –
(i) An Order allowing the appeal.
(ii) An Order setting aside the decision of Hon. Justice Phillips dated 12th November 2010.
(iii) An Order granting the reliefs sought in the Appellant’s Counter-Claim in the Court below.
The Record of Appeal was compiled and transmitted to this Court, pursuant to the Court’s order duly granted on 23/10/11. The Appellant’s Brief of Argument was filed on 27/02/12, but deemed properly filed and served on 23/3/12. On his part thereof, the Respondent filed his brief on 13/4/12.The Appellant equally filed a Reply Brief on 31/4/12. On October 10, when the Appeal last came up for hearing, both learned Counsel adopted the argument contained in their respective briefs. The Appellant urged the Court to allow the Appeal. Contrariwise, the Respondent urged the Court to dismiss the Appeal, for lacking in merit.
However, for the purpose of proper identification, the substantive (CA/L/347M/2011) and the Cross-Appeal shall be distinctly code-named as (i) CA/L/347/2011; & (ii) CA/L/347A/2011, respectively.
APPEAL NO. CA/L/347/11:
In the brief thereof, the Appellant has formulated a total of five issues for determination, viz:
(a) Whether the Respondent’s dismissal was wrongful and a repudiatory breach of his employment contract with the Appellant (the “Gross Misconduct Issue”).
(b) Whether, in the circumstances of this case, the Appellant violated the Respondent’s right to fair hearing as the lower Court held (the “Fair Hearing Issue”).
(c) Whether the lower Court was right to hold that the Chairman of the Appellant’s Board of Directors was not a proper person to communicate the Appellant’s decision summarily to dismiss the Respondent from the Appellant’s employment (the “Dismissal Letter Issue”).
(d) Whether the failure to give the Respondent Notice of the Board Meeting at which the decision to dismiss him was taken invalidated the decision notwithstanding that the Respondent was abroad at the time of the board meeting and had given the Appellant no forwarding address for service of notices of meetings during his temporary absence abroad (the “Notice of Meeting Issue”); and
(e) Whether in view of the evidence admitted at trial, the lower Court was right to dismiss the Appellant’s Counter-Claim for lack of proof (the “Counter-Claim Issue”).
The five issues were indicated to have been distilled from Grounds 1, 2, 3, 4 & 5, seriatim.
Regarding issue No. 1, the Appellant submitted, inter alia, that on the basis of the oral and documentary evidence adduced at the trial, particularly the Respondent’s own admission of serious wrongdoing, the Appellant was entitled to dismiss the Respondent summarily for gross misconduct. According to the Appellant, an employer has a common law right to dismiss an employee summarily for misconduct. See NWOBOSI v. ACB (1995) 6 NWLR (Pt. 404) 658 at 686D; YUSUF v. UBN (1996) 6 NWLR (Pt. 457) 632 at 648A – 649B.
Allegedly, rather than keeping accurate accounting records as required of him under Sections 331 – 335 of the Companies And Allied Matters Act 1990 (CAMA), the Respondent masterminded the breach of statutory obligation by deliberate overstatement of the Appellant’s reported assets, earnings and profits.
Secondly, the Respondent allegedly paid to himself and other Executive Directors large, unauthorized, undisclosed and untaxed offshore salaries in GB pound for a period of over 4 years. Both gross misconducts in question were said to have been admitted by the Respondent vide the evidence thereof. Thus, no other proof is required; what is admitted needs no proof. See FEDERAL CIVIL SERVICE COMMISSION v. LAOYE (1989) 652 @ 679 F – G; UBA PLC v. JARGABA (2007) 11 (Pt. 1045) 247 @ 269G, 270B, 271B, 272C, et al.
The lower Court’s Judgment (pages 1355 – 1356) was referred to the effect that the Respondent had:-
“…Stated that they took thus decision so as not to wipe out profits because he knows in the short term this will inflate the profits.”
According to the Appellant, these admissions have constituted cogent, indeed compelling, and irrefutable evidence of gross misconduct by the Respondent. That, the said admissions were the subject of the express findings by the Securities And Exchange Commission (SEC) and the Nigerian Stock Exchange (Commission), which were not challenged. See Pages 777 -787, 788, 978-979 of the Record (Vol.2).
Thus, the Court has been urged upon to reverse the decision of the lower Court, and accordingly uphold that the Respondent’s dismissal, based on the admissions of his own gross misconduct, was lawful.
On issue No.2, it was submitted, inter alia, by Appellant’s Counsel that the lower Court’s finding that the Respondent “was not allowed to file his accusers and defend all of the allegations made against him by those members of staff interviewed by PWC”, etc, was wrong. That, the lower Court failed to consider what fair hearing required in the circumstances of this case. Thus, it was wrong to hold that the Respondent was denied a fair hearing. See IMONIKHE v. UNITY BANK PLC. (2011) 12 NWLR (Pt. 1262) 624; FCSC v. LAOYE (supra) at 679 F – G; DAMISA v. UBA PLC (2005) 9 NWLR (Pt. 931) 526 at 542 A – B.
The Appellant contended, that the position in DAMISA’S case (supra) is the same with the present case. And that the Respondent in the present case, was given sufficient opportunities to explain his own side of the events, and account for the manipulations he did. However, the Appellant was not satisfied with his explanations.
On the 3rd issue, the Appellant submitted that almost every aspect of the lower Court’s decision is wrong. That, it was wrong for the lower Court to hold that the Respondent’s dismissal letter was wrongful, on the basis that it did not emanate from a proper office of the Appellant, pursuant to clause 9 (iii) of the Respondent’s employment contract. And that, it made little sense that the Respondent’s notice of dismissal would have come from the Respondent as the CEO.
Thus, the Court is urged to accordingly resolve issue No.3 in favour of the Appellant.
Regarding issue No. 4, it was submitted, inter alia, that it’s wrong for the lower Court to have held, as it did, that:-
The Secretary to the Board of the Defendant therefore ought to have sent the Notice of the said Board meeting to the address of the Claimant here in Nigeria since the Claimant was in the UK to the knowledge of the Defendant as at the date of the meeting.
That, the general rule is that a Notice of a Board meeting need not be given to a director who is temporally absent abroad. See Section 266 (4) of CAMA.
The Court has therefore been urged to resolve issue No.4 in favour of the Appellant.
The 5th issue relates to the Appellant’s Counter-Claim. It was submitted, inter alia, that the lower Court, was wrong to have concluded that the only evidence in support of the Counter-Claim was the PWC Report. According to the Appellant’s Counsel: –
80. The lower Court’s approval is symptomic of the laziness which characterized the lower Court’s appraisal and analysis of the evidence adduced at trial. Had the lower Court glanced cursorily at the Appellant’s written closing submissions; it would have been obvious that no item of loss in the Counter-Claim was claimed by reference to the PWC Report.
It was argued, that three issues are regarding the Counter-Claim in question:-
“a. First, did the Respondent grossly misconduct himself as the Appellant’s CEO?
b. Did the Appellant suffer any loss as a result of such alleged misconduct?
c. Did the Appellant prove any such alleged loss?”
According to the Appellant, given the Respondent’s admissions of deliberate “profit management”, it’s apparent that he “knowingly” paid the 2004 and 2005 dividends out of the Appellant’s capital, or in contravention of part III of CAMA. See BAIRSTOW v. QUEEN MOAT HOUSES PLC (2001) 2 BCLC 531 @ 548.
Thus, the Court has been urged upon to follow the decision in BAIRSTOW’S case (supra), and accordingly grant the Appellant’s Counter-Claim, other than the N2.8 billion claimed at paragraph 23(a) of the Defence and Counter-Claim.
On the whole, the Court has been urged to allow the appeal, and accordingly grant the reliefs sought in the Counter-Claim in question.
On his part thereof, the Respondent has deemed it expedient to formulate a total of four issues, at page 7 of the Respondent’s Brief, to wit:-
1. Whether Cadbury followed the procedure in Exhibit “C1” and other ancillary provisions connected thereto in the purported dismissal of Oni as its Managing Director/Chief Executive officer by Exhibit “C2” on 11th December 2006?
2. Whether the allegations of criminal conduct made against Oni in Exhibit C, Exhibit D1, Cadbury’s pleadings and testimony at the lower court and Appellant’s Brief can be sustained by themselves and without any criminal conviction in order to support the purported summary dismissal of Oni?
3. Whether the purported summary dismissal of Oni on the 11th December 2006 was ineffective, unwarranted, unlawful and a breach of contract and his constitutional right to fair hearing?
4. Whether Cadbury specifically pleaded and proved the items of special damages in its Counter-Claim at the lower Court to be entitled to Judgment?
On the 1st issue, the Respondent submitted, without much ado, that by Exhibit “C2”, the Appellant did not follow the procedure in Exhibit “C1”, and other ancillary provisions connected therewith, in dismissing the Respondent as the Managing Director/CEO thereof.
Reference was made to Exhibits “C1, C2, & D1”, to the effect, inter alia, that the lower Court was right in holding, at page 1381 of the Records, that the Ag. Managing Director of the Appellant ought to have signed the letter of dismissal of the Respondent. That, the Court is incapable of making any contract between the parties. See IFETA v. SPDC (NCG) LTD. (2006) 8 NWLR (pt. 983) 585 @ 605 A – B, et al. And that Exhibit “C2” is null and void, ab initio, thus cannot be legally ratified by either the Board or even the shareholders of the Appellant.
The Court was urged to affirm the decision of the lower Court that the dismissal of the Respondent, on 11/12/06 by Exhibit “C2”, is wrongful and unlawful, thus a repudiatory breach of the contract of employment thereof.
On issue No. 2, it was submitted, that under common law, it is lawful for a master to summarily dismiss his servant, with or without notice, giving reason for the dismissal. However, where the alleged misconduct borders on a crime, he must (first) be held guilty by a Court of law. See OLAREWAJU v. AFRIBANK NIG. PLC. (2001) 13 NWLR (Pt.731) 691 @ 703-704 H – B; IHABUHMB v. ANYIP (2011) 12 NWLR (Pt. 1260) 1 @ 16-17 G-D.
It was contended, that FCSC v. LAOYE’S case (supra), is in support of the present case, because (i) the Respondent was not given the opportunity to make oral representations to PWC panel; and that (ii) he was not given a copy of the PWC’s report. Allegedly, the cases of AGBANELO v. UBN LTD. (supra), UBA PLC v. JARGABA (supra) et al, go to no issue, as there is no evidence that the Respondent has admitted to the alleged acts of misconduct against him. The Court has been urged to so hold.
On the 3rd issue, it was submitted, that the purported summary dismissal of the Respondent by the Appellant, on 11/12/06, is unlawful and in effective, because it was in breach of the Respondent’s right to fair hearing under the Evidence Act, the 1999 Constitution and CAMA. See Section 36 (1) of the 1999 Constitution; Section 266 (1) CAMA; FCSC v. LAOYE (supra) at 727 A – B; LONGE VS. FBN PLC (2010) 6 NWLR (Pt. 1189) 1 @ 30 F – G. IHABUHMB v. ANYIP (supra) at 16 – 17 F – B.
However, it is contended that DAMISA’s case (supra), is distinguishable from the instant case. The Court is urged to so hold.
On issue No.4, it was submitted, inter alia, that the Appellant’s Counter-Claims seem like a scam. They are doubtful and manifestly unproven. Thus, the Court not, being a Father Christmas, cannot grant such claims. The Court is urged to accordingly dismiss the Appellant’s Counter-Claim as they lack merit, and are untenable under the Nigerian Law.
Thus, it was contended, that as the appeal lacks merit, it should be dismissed in its entirety.
The Appellant was not done yet. On 04/5/12, he filed a Reply Brief to the Respondent’s Brief, once more urging the Court to allow the Appeal, and accordingly grant the reliefs sought in the Counter-Claim in question.
I have accorded an ample consideration upon the nature and circumstances surrounding the Appeal, the argument contained in the respective briefs of the learned Counsel vis-a-vis the Record of Appeal, as a whole.
I have deemed it expedient to adopt the five issues formulated by the Appellant in the brief thereof for the determination of the appeal. The five issues were indicated to have been distilled, seriatim, from the five Grounds of the Notice of Appeal. Unlike the five issues formulated by the Appellant, none of the four issues raised in the Respondent’s brief was indicated to have been distilled from, or related to, any of the five Grounds of the Notice of Appeal.
ISSUES 1, 2 & 3
I will deal with issues 1, 2 & 3 together. Issue No.1 raises the vexed question of whether the Respondent’s dismissal was wrongful and a repudiatory breach of his employment contract with the Appellant. The issue No.2, on the other hand, raises the question of whether, in the circumstances of the case, the Appellant has violated the Respondent’s right to fair hearing, as was held by the Court below. The issue No.3 raises the question of whether the lower Court was right to hold, as it did, that the Chairman of the Board of Directors of the Appellant was not the proper person to communicate the Appellant’s decision summarily to dismiss the Respondent.
It is trite, that the term “misconduct” denotes a dereliction of duty; unlawful or improper behaviour. Thus, serious misconduct or gross misconduct, denotes serious dereliction (of duty), unlawful or improper behaviour.
Indeed, it’s a settled common law principle, that an employer has the liberty or right to dismiss the employee thereof summarily, for gross misconduct. However, what constitutes a serious or gross misconduct of an employee is a question of fact and degree. The misconduct in every given circumstance must be such as to undermine the relationship of trust and confidence supposedly existing between the employer and the employee. See NWOROSI v. ACB (1995) 6 NWLR (pt. 404) 658; 686 paragraph D; YUSUF v. UNION BANK (1996) 6 NWLR (pt. 457) 632; 648 paragraph B.
In the instant case, the Respondent has averred in Paragraphs 2, 5 & 7 of the Statement of Claim thereof (14/4/08), thus:-
2. The Claimant was at material times an employee of the Defendant (Appellant) having been first employed by the Defendant in 1977 as product Development Manager and ascended in the company through a succession of highly responsible officers including Human Resources Sector, Sales and Marketing Director, Corporate Planning Director and Vice president (Marketing) of Cadbury, India. He was appointed as Managing Director of the Defendant in 1993 and Chief Executive Officer in 1995. In 2000, he was entrusted with concurrent responsibility for Cadbury Schweppes operatives in West Africa.
5. The express terms of his contract of employment as executive provide for salary and other such emoluments outlined therein.
7. On 11th December 2006, when the Claimant had been summoned to London by the principal company OSP and remained there on their instructions, the Defendant peremptorily repudiated the Claimant’s contract of employment by a letter signed by one “Imo J. Itsueli, Chairman” purportedly on behalf of the Defendant.
The Respondent seemed to have accepted the repudiatory conduct of the Appellant, thus considered his contract of employment had come to an abrupt end (paragraph 9, Statement of Claim). Nonetheless, the Respondent averred in paragraph 8 that the letter in question was invalid and wrongful, the reasons being that:-
(a) There was no… valid meeting of the Directors of the Defendant at which the decision communicated on 11th December 2006 was taken.
(b) The decision so communicated was based upon a purported indictment contained in a report commissioned by the Defendant through the firm of accountant Price WaterHouse Coopers in respect of which investigation the Claimant was not heard or was not fairly heard and which report was never (despite demands to Defendant and promises by its Chairman) made available to the Claimant.
(c) No notice of any relevant Board Meeting was given to the Claimant although he was at all times one extant member of the Board of Directors and legally entitled to such notice.
(d) Disciplinary procedure prescribed in the Defendants conditions of service and incorporated in the Claimant’s contract of employment was not followed.
(e) Basic and fundamental rules of fair hearing were discarded in the haste to indict and injure the Claimant.
Conversely, in the amended Statement of Defence and Counter-Claim thereof (pages 883 – 905 of the Record), the Appellant denied the Respondent’s claim to the effect, inter alia, thus:-
6.4. It is denied that the letter constituted a repudiation of the Claimant’s employment contract by the Defendant…
7.1. It is denied that the letter of dismissal of the Claimant dated 11 December 2006 was invalid or wrongful, whether as alleged or at all.
7.5.2. It is denied that the Defendant was required to follow any specific procedure for the discipline of the Claimant prior to his summary dismissal on 11 December 2006…
8.1. It is denied that the Defendant’s conduct was repudiatory or that his dismissal was wrongful.
8.3. It is denied that the Defendant’s public statements or other actions were calculated to humiliate or embarrass the Claimant or make his position with the Defendant untenable. On the contrary, it is the Claimant’s admitted deliberate false accounting and other gross misconducts that made his position with the Defendant untenable…
10.1. If is denied that there were no grounds or sufficient grounds for the summary dismissal of the Claimant.
10.2. It is denied that the reasons given in the letter of summary of dismissal were false, whether as alleged or at all…
2. By reason of the facts and matters pleaded above, it is denied that the Claimant is entitled to the reliefs claimed against the Defendant or to any relief.
COUNTER-CLAIM
23. By reason of the facts and matters pleaded above, the Defendant has suffered loss and damage… as follows:-
23.1. N2,822,819,000 (two billion, eight hundred and twenty-two million, eight hundred and nineteen thousand naira) was written off in the Defendant’s 2006 accounts in respect of fictitious stock.
23.2. Dividends of N1,601,345,000 (One billion, six hundred and one million, three hundred and forty-five thousand naira) paid out in 2004.
23.3. Dividends of N1,303,154,000 (One billion, three hundred and three million, one hundred and fifty-four thousand) paid in 2005.
23.4. Corporation tax of N1,036,650,000 (One billion, thirty-six million, six hundred and fifty thousand) paid in 2004.
23.5. Corporation tax of N1,142,173,000 (One billion, one hundred and forty-two million, one hundred and seventy-three thousand naira) paid in 2005.
23.6. N200 million incurred as legal fees to defend the Defendant in proceedings before SEC and thereafter.
23.7. N148 million paid to PWC for investigating the overstatements.
23.8. GBP90,000 unauthorised payments received by Claimant.
Both parties are ad idem that Exhibit “C1” relates to the conditions governing the contractual relationship thereof. Most particularly, clause 19 (a) (iii) of the said Exhibit C1 provides thus:
Without prejudice to clause 2 above- (a) If the executive:-
(iii) Shall be convicted of a serious crime or shall engage in a serious dishonest act against the company or any Associated Company or shall engage in any willful misconduct that is materially injurious to the financial condition or business reputation of the company or any associated company. Then the Board shall through the Chief be entitled in writing to the executive to terminate forthwith his employment under this Agreement. In the case of 19(a) (i) the notice shall be (6) months white for (ii) & (iii) there shall be no notice. The Executive shall have no claim against the company by reason of such termination.
Exhibit “C2” is the letter of dismissal (11/12/06) served upon the Respondent by the Appellant. By all means, Exhibit “C2” is the genesis of the instant action, thus most fundamentally germane to the determination of the appeal. I have deemed it expedient to reproduce the said Exhibit “C2” verbatim hereunder:
Dear Sir,
DISMISSAL FROM OFFICE
Please refer to my letter of 17 November 2006 on the above subject matter.
You will recollect that in the course of the year there were issues as to the accounting and financial statements of the Company which led to some internal reviews culminating in evidence of overstatement of the published financial statements of the Company for a number of years. As a matter of prudence the Board resolved that an independent Accountant Price Waterhouse Coopers (PWC) be appointed to investigate this matter.
The highlight of PWC’S report titled “Summary of Issues for Interview Meetings” which confirmed significant and deliberate overstatement of the Company’s financial position over a number of years amongst other gross misconduct has been made available to you.
I travelled to the UK on 4th December 2006 to discuss these allegations and your responses thereto with you in the company of your Counsel Mr. Wole Olufon. You also gave written responses to the allegations and assertions as to mismanagement and misconduct at the meeting.
The Board has considered your responses to the allegations of gross misconduct levied against you, and unfortunately found your oral explanation and written response and defence unacceptable.
More importantly you have admitted orally and in writing:
1. To be responsible for the large cost deferrals;
2. Taking steps in your own words to “…smoothen the profit curve…”
3. That you solely without recourse to the Board after a query on the offshore payments to Executive Directors which the Board refused to approve decided to close the offshore account and determine how to distribute the funds therein belonging to the Company; and
4. That one of the principal suppliers to the Company – Shon is in partnership with your brother and that the interest was not declared to the Board as you did not deem it necessary to do so.
Clearly your conduct contravenes the values of Cadbury Nigeria and is unjustifiable. In the circumstances, the Board has resolved to summarily dismiss you from office as Managing Director and Chief Executive with the effect from 11 December 2006.
The report of Price Waterhouse Coopers, which has been concluded and raises a number of other significant issues, will be available to your very soon.
Yours Faithfully,
U. J. Itsueli
Chairman of the Board.
Instructively, the conclusion thereby reached by the lower Court in the said Judgment, is to the effect, inter alia, that:-
“The findings of PWC against the Claimant in Exhibit “D15″ border on fraud, stealing, abuse of office and corrupt practices, which are criminal in their nature. It is now trite that in our legal system, every man is presumed innocent until proven guilty, so when allegations, such as those contained in Exhibit D15 are made against anybody, they remain allegations until that person is found guilty by a Court of law.”
As alluded to above, the Appellant has challenged the above and other findings of the lower Court. At pages 2 – 3, Paragraphs 6 – 7 of the Appellant’s brief:
6. In this appeal, the Appellant challenges the lower Court’s decision and contends that the decision is wrong in law and turns corporate governing on its head. The decision is a licence to CEOS of quoted Companies deliberately to manipulate their public accounts to the detriment of the investing public. No rational system of law can tolerate such accounting fraud, still less endorse and eulogies it, the way the lower court has done.
Again, at the same page 2 of the brief thereof, the Appellant has alluded to the fact that:-
2. The Respondent, as the Appellant’s Chief Executive Officer – CEO, masterminded what he euphemistically referred to as “profit management”, but which was in reality deliberate false accounting that overstated the Appellant’s reported assets, earnings and profits over a number of years and on the basis of which the Appellant paid dividends and corporation taxes and innocent local and international investors bought and sold shares issued by the Appellant. The Respondent admitted the false accounting in interviews and emails, and in his pleadings, witness statements and during cross-examination in these proceedings.
By the above submissions, the Appellant’s learned senior Counsel has unwittingly conceded to the fact that the allegations against the Respondent, contained in the letter of dismissal thereof (Exhibit C2), are by all means criminal in nature as aptly held by the lower court in the vexed judgment in question.
Yet, it’s a well settled fundamental principle, that:-
“Conducts amounting to crime must first be a matter for the criminal tribunal (Court) before disciplinary issue.”
See FCSC v. LAOYE (1989) 2 NWLR (Pt. 106) 652 at 679 – 680 per Kayode Eso, JSC (of blessed, and most remarkable memory).
Indeed, it was in LAOYE’S case (supra) that Eso, JSC (of blessedly remarkable memory) was recorded to have aptly reviewed the plethora of the early authorities of the Apex Court, regarding the issue in question. Such early authorities (decisions) chronicled by Eso, JSC in LAOYE’S case included the following:-
(i) DENLOYO v. MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY COMMTTTEE (1968) 1 ALL NLR 306;
(ii) DR. O. G. SOFEKUN v. CHIEF N. O. A. AKINYEMI & 3 ORS. (1990) 5-7 SC;
(iii) EPEROKUN v. UNIVERSITY OF LAGOS (1986) 4 NWLR (Pt. 34) 162;
(iv) OLATUNBOSUN v. NISER (1988) 3 NWLR (Pt. 80) 25;
(v) GARBA v. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 18) 556;
(v) ADIGUN v. AG, OYO STATE (1987) 1 NWLR (Pt. 53) 678;
(vii) SHITTA-BEY v. FEDERAL CIVIL SERVICE COMMISSION (1981) 1 SC 40.
In all the above authorities, the conclusion thereby reached by the Supreme Court is to the effect, inter alia, that it’s only a court of jurisdictional competence that has the power to entertain and adjudicate upon criminal matters.
However, in the instant case, the Appellant does not seem to believe so. It was submitted by the Appellant that both gross misconducts were admitted by the Respondent as such-
“The lower court was wrong to ignore them and hold that he was wrongfully dismissed.”
Thus, the learned senior Counsel urged upon the Court to accordingly “reverse the decision of the lower Court and hold that the Respondent’s dismissal based on his admissions of his own gross misconduct is lawful.” See page 10, Paragraph 38 of the Appellant’s brief.
It was equally postulated by the learned senior Counsel, that where wrong doing is admitted, indeed confessed, what’s required to discharge any burden of fair hearing is minimal. See FEDERAL CIVIL SERVICE COMMISSION v. LAOYE (supra) at 679 paragraphs F – D. DAMISA v. UBA v. PLC (2005) 9 NWLR (Pt. 931) 526.
Contrariwise, in the main, the argument of the Respondent’s learned Counsel regarding the issues 1 & 2 is that the Appellant did not follow the procedure for the removal of the Respondent as provided for in Exhibit “C”, the contract of employment, Exhibit “D1”, the Articles of Association, and other ancillary but mandatory provisions of Nigerian Law. And that since the Respondent has not been convicted for the crimes alleged against him the Appellant cannot rely on the allegations to justify the purported summary dismissal thereof without the agreed benefits. The Court is urged to so hold.
In the instant case, it’s rather obvious, that the terms and conditions of employment of the Respondent are contained in Exhibit C1 (the Contract of Employment), vis-a-vis Exhibit “D1” (the Articles of Association of the Appellant).
Indeed, it’s a trite and well settled principle, that the onerous duty of the Court is to simply interpret and enforce the agreement lawfully entered – in to by parties.
Thus, the court lacks the jurisdictional competence to make a contract for the parties. See IBAMA v. SPDC (2005) 17 NWLR (Pt. 954) 364; IFETA v. SPDC (NIG.) LTD. (2006) 8 NWLR (Pt. 983) 585; PACERS MULTI-DYNAMIC LTD v. THE MV. DANCING SISTER & ANOR. SC. 238, 2001 (unreported) at 28 respectively.
Most particularly, in the case of IBAMA v. SPDC (NIG) LTD. (supra), the Supreme Court was reported to have aptly, and rather authoritatively, held that:-
It is trite law that the court can only interpret or enforce the agreement entered into by the parties and is in capable of making any contract between them. Per ONNOGHEN, JSC at 391, paragraph G.
Instructively, it’s equally a trite doctrine, that in a case regarding a wrongful dismissal or termination of employment, it’s incumbent upon the employee to:-
(i) place before the court the terms (and conditions) of the contract of employment entered in to between him and the employer thereof; and
(ii) to prove or establish the circumstances in which the terms (and conditions) of the contract of employment in question have been breached by the employer thereof.
Thus, it does not at all behove upon the employer to prove any breach of the terms (and conditions) of contract of employment regarding thereof. See KATTO v. CBN (1999) 6 NWLR (Pt. 607) 390; AMODU v. AMODE (1990) 5 NWLR (Pt. 150) (1994) 7 NWLR (Pt.357) 379; IBAMA v. SPDC (NIG.) LTD. (supra) at 378 – 329 paragraphs G – A; 388 paragraphs G – D, respectively.
The above doctrine is predicated upon the trite fundamental principle of the law of evidence, to the effect that he who asserts must prove the veracity of the assertion thereof.
By virtue of the provisions of section 137 (1) of the Evidence Act in Civil cases, the burden of proving the existence or non-existence of a fact lies upon the party against whom judgment would be given if no evidence were adduced by either party; regard being had to any presumption that may arise in the pleadings. See
OYOVBIARE v. OMAMURAOMU (1999) 10 NWLR (Pt.23) 34 – 35; GARBA v. ZARIA (2005) 17 NWLR 953; TEWOGBADE v. AKANDE (1968) NWLR 404.
I think, one very fundamental general principle which ought to be borne in mind in the circumstance, is that a contract of employment (service) is the pivot upon which the case of an employee (complainant) is predicated. Thus, the success or failure of the case thereof is fundamentally predicated on the terms and conditions inherent in the contract of employment thereof. As aptly, and rather emphatically, held by the Supreme Court;
“In a written contract of service, the court will not look into any matter outside the terms stipulated and agreed therein between the parties to the contract in determining the respective rights and obligations of the parties.”
See IBAMA v. SPDC (NIG.) LTD. (supra) at 379 paragraphs C – E; per MOHAMMED, JSC; see also WNDC v. ABIMBOLA (1966) 2 SC NLR 21; NIGERIAN PRODUCE MARKETING BOARD v. ADEWUNMI (1972) 11 SC III; IMOLOAME v. WAEC (1992) 9 NWLR (pt. 265) 303.
As alluded to above, the contractual relationship between the Appellant (the employer) and the Respondent (the employee) is governed principally, by exhibit “C1”, the contract of employment. Exhibit “C1” in question is essentially made of a total of 25 clauses. Most particularly, clause 2 of Exhibit “C1” is to the effect, inter alia, thus:
(a) The Executive shall serve the company as (EXECUTIVE DIRECTOR) or in such capacity of a line status as the company may reasonably require unless and until his employment shall be determined by the company through its chief Executive not less than six months notice in writing or the Executive giving to the company through the Chief Executive not less than six months notice in writing in either case expiring at any time or payment in line of such notice. Neither party is obliged to give a reason for termination under this clause.
However, in addition to clause 2 (a) above, it’s also provided under paragraph 19 of Exhibit “C1” in question, for the termination of the employment of the Executive of the Appellant, thus:
19. TERMINATION OF EMPLOYMENT
Without prejudice to clause 2 above.
(a) If the Executive:-
(i) shall be or become incapacitated from any cause whatsoever from efficiently performing his duties hereunder for 3 consecutive months or for 120 working days in aggregate in any period of 12 consecutive months; or
(ii) shall be guilty under the provisions of sections 253, 254 and 258 of the companies and Allied Matters Decree 1990; or
(iii) shall be convicted of a serious crime or shall engage in a serious dishonest act against the company or any Associated company or shall engage in any willful misconduct that is materially injurious to the financial condition or business reputation of the Company or any Associated Company.
Then the Company shall through the Chief Executive be entitled in writing to the Executive to terminate forthwith his employment under this Agreement. In the case of 19 (a) (i) the notice shall be (6) months while for (ii) & (iii) there shall be no notice.
The Executive shall have no claim against the company by reason of such termination. Any delay or for balance by the company in exercising any right of termination shall not constitute a waiver of it.
I have alluded to Exhibit “C2”, as being the genesis of the instant action. By the said Exhibit “C2”, the attitudinal disposition of the Respondent as an employee of the Appellant was questioned, inter alia, thus:-
Clearly, your conduct contravenes the values of Cadbury Nigeria and is unjustiable. In the circumstance, the Board has resolved to summarily dismiss you from office as Managing Director & Chief Executive with effect from 11 December 2006.
The report of Price Waterhouse Coopers, which has been couched and raises a number of other significant issues will be made available to you very soon.
Yours faithfully,
for: CADBURY NIGERLA PLC.
U. J. Itsueli
Chairman of the Board
Now, the finding of the lower Court regarding Exhibit “C2”, (the letter of dismissal of the Respondent) is to the effect, inter alia, thus:-
The letter of dismissal also to my mind did not emanate from the proper officer pursuant to the provision of clause 19 (iii) supra of Exhibit “C1/D2,” as the evidence adduced in this matter shows that an Acting Managing Director was appointed after the Claimant was dismissed so it is he who ought to have signed the letter of dismissal set out above not Mr. Itsueli, the Chairman of the Board. See page 1381 of the Record.
It is not at all in doubt, that as at the time of the removal (dismissal) thereof from service on 11/12/06, the Respondent was the (substantive) Managing Director and Chief Executive of the Respondent. By virtue of Exhibit “C1”, the letter of termination or dismissal of the Respondent must be issued by the immediate predecessor in office or the Acting Chief Executive of the Respondent. Mr. Itsueli, who signed Exhibit “C2” has deposed on oath in the written evidence thereof (pages 983 – 987 of the Record Vol. 2), inter alia, thus:-
I, the Rt. Hon. Imo Itsueli, AJ Marinlo Drive, Victoria Island, Lagos, WILL SAY ON OATH as follows:-
1. I was the Non-Executive Chairman of the Board of Cadbury Nigeria Plc. (“CN”), the above named Defendant, at the time that the events which led to the suspension and dismissal of the Claimant and gave rise to these proceedings occurred. As a result, I am familiar with the facts and matters in issue in these proceedings as they relate to the Board of Cadbury Nigeria Plc. at that time and have the authority of the Defendant to make this statement.
Thus, as a Non-Executive Chairman “of the Respondent, it’s rather obvious, as rightly held by the lower Court, that:-
The letter of dismissal also to my mind did not emanate from the proper officer pursuant to the provision of clause 19 (iii) supra of Exhibit “C1/D2” as the evidence adduced in this matter shows that an Acting Managing Director was appointed after the Claimant was dismissed so it is he who ought to have signed the letter of dismissal set out above not Mr. Itsueli the Chairman of the Board.
I have no hesitation, whatsoever, in upholding the above finding of the lower Court, bearing in mind the well set out provision of Articles 87 (a) and 96 of the Articles of Association of the Respondent (Exhibit “D1”), which are to the following effect:-
87. The office of a Director shall be vacated:
(a) upon his removal in accordance with the provision of Regulation 96 hereof …
96. The Directors may meet together for the dispatch of business, adjourn and otherwise regulate that meetings, as they think fit.
Questions arising at any meeting shall be decided by a majority of votes. In case of an equality of votes, the Chairman shall have a second or casting vote. A Director may and the Secretary on the requisition of a Director shall at any time summon a meeting of Directors.
What’s more, the provision of Article 94 deals specifically with issues regarding removal of a Director by an ordinary resolution, thus:
94. The Company may by ordinary resolution, of which special notice has been given in accordance with Section 236 of the Decree, remove any Director (the Respondent inclusive) before the expiration of his period of notice, notwithstanding anything in these Articles or in any agreement between the company and such Director. Such removal shall be without prejudice to any claim, such Director may have for damages for breach of any contract of service between him and the company.
Instructively, the provision of Section 236 of the Companies and Allied Matters Act referred to in Article 94 above, is to the following effect:
“236. Resolutions requiring special notice
Where by any provision contained in this Act, special notice is required of a resolution, the resolution shall not be effective unless notice of the intention to move it has been given to the Company not less than 28 days before the meeting at which it is to be moved, and the Company shall give its members notice of any such resolution at the same time and in the same manner as it gives notice of the meeting, or if that is not practicable, shall give them notice thereof, either by advertisement in a newspaper having an appropriate circulation, or in any other mode allowed by the articles, not less than 21 days before the meeting:
Provided that if, after notice of the intention to move such a resolution has been given to the company, a meeting is called for a date 28 days or less after the notice has been given, the notice, though not given within the time required by this section, shall be deemed to have been properly given for purposes thereof.
From the above far-reaching postulations, it’s become rather obvious, as aptly canvassed by the Respondent, that:
(1) The Appellant’s Board of Directors did not meet to decide on a majority votes to remove the Respondent in accordance with Articles 96 & 94 of the Exhibit “D1” and the well set out provisions of Section 236 of the Companies And Allied Matters Act (supra).
(2) That the Respondent did not pass any resolution, either special or ordinary and pass same upon the Respondent.
(3) That upon the Receipt of the Price WaterHouse Coopers’ Report (Exhibit “D15”), the Respondent was not accorded the opportunity to make representations. And that the Respondents’ representation was not sent to the persons that participated in the meeting of 11/12/06, in compliance with Section 262 (3) of CAMA (supra).
(4) That upon the removal thereof, the Appellant refused to pay the Respondent the agreed damages as envisaged in clause 20 (a) & (b) of Exhibit “C1” and Section 262 (6) of CAMA (supra).
In the circumstance, the inevitable answers to issues, 1, 2 & 3 are undoubtedly in the affirmative. Thus, the three issues in question are hereby resolved in favour of the Respondent, against the Appellant.
ISSUE No.4
The fourth issue raises the vexed question of whether or not, the Appellant’s failure to give notice of the Board Meeting, at which the decision to so dismiss him was taken, invalidated the decision, notwithstanding the fact that the Respondent was abroad at the material time of the Board Meeting, and had given the Appellant no forwarding address for service of notices of the meetings during the temporary absence abroad thereof.
I have amply considered the argument of the learned Counsel, contained in their respective briefs vis-a-vis the Record of Appeal, as a whole. I have had the course to herein above outline the submissions of the respective learned Counsel regarding the issue in question.
The learned senior Counsel to the Appellant has, inter alia, alluded to the finding of the lower Court, most especially at page 1382 of volume 2 of the Record, to the effect, thus:
The Secretary to the Board of the Defendant therefore ought to have sent the notice of the said Board Meeting to the address of the Claimant here in Nigeria since the Claimant was in the UK to the knowledge of the Defendant as at the date of the meeting.
In the learned silk’s words:
“This conclusion is wrong in law.”
Invariably, the requirement of the law regarding the issue is not at all in doubt.
By the provision of Section 266 of the Companies And Allied Matters Act (supra):
(1) Every Director shall be entitled to receive notice of Directors meetings, unless he is disqualified by any reason under the Act from continuing with the office of Director.
(2) There shall be given 14 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 in validate the meeting.
(4) Unless the articles otherwise provide, it shall not be necessary to give notice of a meeting of Directors to any Directors 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.
The above well set out, and rather unequivocal, provisions of section 266 of CAMA represent the true position of the law, regarding entitlement of directors to be served with notices of meetings of the Board thereof.
In the instant case, it’s rather evident, that the Respondent was temporarily resident (if not quarantined!) in the UK at the instance of the Respondent, both prior to and up to the material time the Respondent dismissed him from the service thereof.
It was at the instance, expense and to the knowledge, of the Appellant that the Respondent travelled to, and stayed in, the UK (London) at the material time in question. Yet, the Respondent, for reasons best known thereto, did not consider it appropriate or even expedient to serve him with a notice for the meeting that ultimately resulted in truncating his (30 years) long standing career with the Respondent. I would want to think, and even believe, that the Respondent’s attitudinal disposition is very much unfair, and most reprehensible, to say the very least.
In the instant case, it is very obvious, that the Respondent’s long standing career and reputation were put on the line, consequent upon the serious, and rather criminal allegations leveled against him by the Appellant. Thus, it was only fair and just that he be accorded every ample opportunity to defend himself, before any adverse disciplinary action was taken against him. Alas! This was not done in the present case.
Yet, the position of the law is most unequivocal regarding the issue. Under section 36(1) of the 1999 Constitution, as amended, it has been most cherishingly provided that:
(1) In the determination of his rights and obligations, including any question of determination by or against any government or authority, a person shall be entitled to a fair hearing within the reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
Afortiori, in the notorious case of FCSC v. LAOYE (supra), the Supreme Court was reported to have aptly and rather emphatically held, inter alia, that:
There can be no doubt that the Respondent has had every serious charges leveled against him. In fact he has been accused of grave crimes, which if proved, will amount not only to felonious crime but also border on economic sabotage of the nation. A person so accused is entitled to be confronted with his crimes, be told the nature and content of the case against him, be brought face to face with accusers and their witnesses that he wishes to call to support his case, all this within a reasonable time and before a Court or tribunal constituted in such a way to ensure its fairness and impartiality. Per NNAEMEKA AGU, J.S.C. (of blessed memory) at 727, paragraphs A – B.
In yet another decision of the Supreme Court, it was aptly and rather authoritatively held that:
The combined requirement of Sections 266 (1) and 262 (of the Companies And Allied Matters Act), is that a director to be removed must be given a notice of the meeting. It is not the requirement of the law that such director about to be removed must be present at the meeting. He may receive the notice and refuse to show up at the meeting. What section 266 (3) above punishes is the failure to give such notice. See LONGE vs. FBN PLC (2010) 6 NWLR (Pt. 1189) 1 at 30 paragraphs F – G, per Oguntade, JSC.
Exhibit “C2”, the letter of dismissal of the Respondent has been copiously alluded to above. Most particularly, the last two paragraphs of Exhibit “C2” are to the following effect:
Clearly, your conduct contravenes the values of Cadbury Nigeria and is unjustifiable. In the circumstance, the Board has resolved to summarily dismiss you from office as Managing Director & Chief Executive with effect from 11 December 2006.
The report of Price WaterHouse Coopers, which has been concluded and raises a number of other significant issues will be made available to you very soon.
Due to the implication of Price WaterHouse Coopers Ltd’s curious involvement in the investigation of the Respondent, as the Managing Director and Chief Executive of the Appellant, I have deemed it expedient to reproduce in verbatim, the Price WaterHouse Cooper’s letter, forwarding Exhibit “D15” to the Appellant, thus:
Strictly Private & Confidential
The Chairman
Cadbury Nigeria Plc
Lateef Jakande Road
Agidingbi
Ikeja
Lagos
Nigeria
11 December 2006
Dear Sir,
In accordance with your instructions as confirmed in our engagement letter dated 8 November 2006 (the “Engagement Letter” – Appendix), we report on Cadbury Nigeria Plc (the “Company” or “CN”).
This report has been prepared for the purposes of the investigation by Cadbury Nigeria Plc into suspected financial irregularities at CN.
Our principal findings and conclusions are separately set out in this report in relation to the three distinct areas of work, namely:
I. Balance Sheet View
II. Forensic Investigation
III. Commercial Due Diligence
11 December 2006
The Chairman – Cadbury Nigeria Plc.
In addition, a separate executive summary has been prepared which summarises the main findings from all aspects of our work. Details of the scope and approach to our work are included in each of the relevant sections. We point out that our work has been based upon information and explanations provided to us by the employees of CN. We have not interviewed or held discussions with the former Managing Director or Finance Director. Furthermore, the financial controller was only available to assist us in the final week of the investigation. Consequently we have relied upon the input of less senior officials of CN.”
From the above excerpts of Exhibit “D15” in question, it’s rather evident, that the Price WaterHouse Cooper investigation panel did not deem it appropriate, or even expedient, to invite the Respondent in the course of the investigation, which resulted in the compilation of Exhibit “D15”. Regrettably, the Respondent was neither invited, nor accorded the opportunity he desperately needed to defend himself against the criminal allegations levied against him in Exhibit “D15”.
Ironically, it was admitted by Price WaterHouse Cooper Investigation panel in Exhibit “D15” (page 600) thus:
We point out that our work has been based upon information and explanations provided to us by the employees of CN. We have not interviewed or held discussions with the former Managing Director or Finance Director. Furthermore, the financial controller was only available to assist us in the final week of the investigation. Consequently we have relied upon the input of less senior officials of CN.
See also the Amended Statement of Defence and Counter-Claim of the Appellant, paragraphs 7.4.3 & 7.4.4, at pages 883 – 904 of the Record (volume 2) thus:
7.4.3. It is admitted that following his suspension by the Defendant’s Board on 16 November 2006, the Claimant was not given notice of any subsequent Board meetings.
7.4.4. Given that the Claimant was on suspension and that his conduct was being discussed at the subsequent meetings, it is denied that he was entitled to receive notice of such meetings.
Curiously, the Appellant had “lured and detained” the Respondent in London, and deliberately refused to give him the notice of the meeting of the Board thereof held on December 11, 2006, thereby resulting in the dismissal thereof.
Yet, as alluded to above, it’s a well settled principle, that the combined effect of the provisions of Sections 266(1) and 262 of the Companies And Allied Matters Act (supra) is that a Director, liable to be removed, shall be entitled to be given a notice of the meeting. It is immaterial whether or not the Director attends, or is represented at such, meeting. See LONGE v. FBN PLC (supra) where in the Supreme Court held, inter alia, that
If is not the requirement of the Law that such director about to be removed must be present at the meeting. He may receive the notice and refuse to show up at the meeting.
What Section 266 (3) above punishes is the failure to give such notice. Per Oguntade, JSC at 30 paragraphs F – G.
I would want to appreciate, the fact that the cases of (i) DAMISA v. UBA PLC (2005) 9 NWLR (Pt. 931) 526; (ii) IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR (Pt. 1262) 624; and (iii) UMOH v. ITGC (2001) 4 NWLR (pt.703) 281, are quite distinguishable from the instant case, for some obvious reasons.
First, in the case of DAMISA (supra) unlike the present, the Appellant was arraigned (before the Court) and accorded an ample opportunity to make oral representations, as well as written submissions to the committee which conducted the investigation there upon. Interestingly, the Appellant in DAMISA’S case (supra) “was charged to court”, but “subsequently discharged.” Contrariwise, the present Respondent was neither arraigned before any court, tribunal or panel, nor accorded the opportunity he desperately needed to make oral or written submissions to the Price WaterHouse Cooper Ltd’s investigation panel, (which conducted investigations regarding the activities thereof), or the Chairman’s committee that surreptitiously dismissed him.
Second, in IMONIKHE’S case (supra), it was held, inter alia, by Apex court that the Appellant could not complain of the breach of the right to fair hearing thereof on the ground that he had actually received and did in fact respond to several queries. Conversely, in the instant case, upon receipt of the report, the Respondent was not issued with any query, at all.
Third, unlike in UMOH’s case (supra), the Respondent in the present case was not given the opportunity to make oral or written submissions to the Price WaterHouse Cooper Ltd panel and the Appellant Chairman’s Committee.
Fourth, as aptly postulated by the Respondent’s learned Counsel, the submission in paragraph C, at page 12 of the Appellant’s brief seems to corroborate the Respondent’s case, that the Appellant had found the Respondent culpable from the beginning, thus did not see any reason to accord him an opportunity to respond to the allegations levied against him.
Most undoubtedly, the instant appeal borders on the vexed issue of breach of fundamental right to fair hearing. And it’s a trite and well settled principle, that the fundamental right to fair hearing is not merely a technical doctrine. Indeed, it’s a principle of substance, which transcends the mere question of whether a party is entitled to be heard before a decision is reached thereupon. But whether he has in fact been accorded an opportunity to be heard.
The effect of denial of a party’s right to fair hearing goes to the root of the decision thereby reached by the Court. Thus, where, as in the instant case, an appellate Court reaches the conclusion that a party was entitled to be heard before a decision was reached by Court or tribunal, but was not given the opportunity of being heard, the judgment (decision or order) thus entered ought to be set aside. See BAMAIYI v. THE STATE (2001) 8 NWLR (Pt. 715) 270; EKE V THE MILITARY ADMINISTRATOR, IMO STATE (2007) 13 NWLR (Pt. 1052) 531 at 564 paragraphs D – F, per Saulawa, J.C.A, KOTOYE v. CBN (1989) NWLR (pt. 98) 419; NTUKIDEM v. OKO (1986) 5 NWLR (pt. 45) 909.
In the light of the above postulations, the answer to issue No.4 is most inevitably in the affirmative, and same is hereby resolved in favour of the Respondent, against the Appellant.
ISSUE NO.5
The fifth issue raises the question of whether or not in view of the evidence admitted at the trial, the lower Court was right to have dismissed the Appellant’s Counter-Claim for lack of proof.
By paragraphs 23, 23.1 – 23.8 of the Amended Statement of Defence, alluded to above, the Appellant has pleaded the various particulars of the loss and damage thereof. I have equally outlined the submissions of the learned Counsel contained in their respective briefs, regarding the Counter-Claim in question.
Invariably, the term Counter-Claim denotes a claim for relief asserted against an opposing party (Plaintiff) after an original claim has been made. Also termed counter action; counter suit; cross-demand, et al. See BLACK’S LAW DICTIONARY, 9th edition, 2009 at 402.
In the instant case, the claims pleaded by the Appellant under the Counter-Claim thereof in question are special damages in nature. And it’s a well settled fundamental principle, that special damages are characteristically items of loss which the Claimant must particularize in the pleadings thereof, with a view to adducing evidence thereupon. Thus, the Claimant has the onus of strictly proving every item of the special damages claimed by him. See ACB v. OKONKWO (1997) 1 NWLR (pt. 480) 194 at 206; NMA v. MMAINC (2010) 4 NWLR (Pt. 1185) 613 at 646 B – C; BUHARI v. OBASANJO (2005) 13 NWLR (Pt. 941) 1 at 122 C – D; FB LTD, v. OWLE (1997) 1 NWLR (Pt. 484) 744 at 756 F – G, respectively.
At page 1386, lines 7 – 32 & 1387, lines 1 – 2, of volume 2 of the Record, the lower Court was recorded to have held, inter alia, thus:
The claims of the Defendant in its Counter-Claim are items of special damage and each of these items has to be specifically pleaded and specially proved…
In the instant case the proof of the Claimant’s fraud is hinged on the PWC report (Exhibit “D15″), which I have already held was not put to the Claimant to enable him, defend the allegations therein… This document therefore has little probative value for these reasons. Furthermore the evidence of DW1 in regard to this document and the whole events that led up to it is (sic) largely hearsay as he was not party to the decision that brought it about and above all he is not even an employee of the Defendant but that of the parent body…
I therefore have no difficulty in coming to the conclusion that the Defendant has failed to prove any of the claims in its Counter-Claim filed in this action and I so hold. I resolve this last issue therefore against the Defendant herein.”
I think, the above findings of the Court below are cogent and rather unassailable, especially having due regard to the pleadings and evidence adduced by the respective parties at the trial. Undoubtedly, as aptly and rather unassailably held by the Court below, Exhibit “D15” lacks any probative value at all!
Thus, I have no hesitation whatsoever in coming to the conclusion that the fifth issue ought to be answered in the affirmative, and same is hereby resolved against the Appellant.
Hence, having resolved all the five issues against the Appellant, there is every cogent reason for me to hold that the instant appeal is unmeritorious. Consequently, the Appeal is hereby dismissed by me.
The judgment of the High Court of Lagos State, Ikeja Judicial Division, delivered on November 12, 2010 is hereby affirmed.
The Respondent shall be entitled to N50,000.00 as damages, against the Appellant.
SIDI DAUDA BAGE, J.C.A.: I had the special privilege of reading in draft the lead Judgment just delivered by my learned brother, I.M.M. Saulawa, J.C.A. I am in complete agreement with the Judgment, and the decision of the High Court of Lagos State, Ikeja judicial Division delivered on November 12, 2010 is also affirmed by me. I abide by the order as to costs, contained in the lead Judgment.
ADAMU JAURO, J.C.A.: I have had a preview of the Judgment just delivered by my learned brother, I.M.M. Saulawa, J.C.A. I agree with the lucid reasoning and conclusion contained therein to the effect that the Appeal is lacking in merit and adopt same as mine.
The Appeal is hereby dismissed and the Judgment of the High Court of Lagos State, Ikeja Judicial Division, delivered on 12th November, 2010 is hereby affirmed.
I abide by the consequential order as to costs.
Appearances
OLADIPO AJAYI with SARATU DANJUMA – For the Appellant/Cross-Respondent For Appellant
AND
R. A. Oshodi with F. O. ABBAS – For the Respondent/Cross Appellant For Respondent
