LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

The Nigerian Institute of Management (Chartered -VS- Dr. (Mrs.) Ebele Ijeoma Felix   

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS

 

Date: December 14, 2017                                                        Suit No: NICN/LA/152/2015

 

Between

The Nigerian Institute of Management (Chartered)             –                                        Claimant

And

Dr. (Mrs.) Ebele Ijeoma Felix                                             –                                           Defendant

 

REPRESENTATION

Kemfon Joseph Neke for the Claimant.

Olabode Olanipekun with F. Adarighofua, M. Akinleye,

  1. Ajileye, O. Salami and N. Abama for Defendant.

 

 

JUDGMENT

  1. Introduction & Claims

On 27/4/15, the Claimant approached this Court via its General Form of Complaint and Statement of Facts and sought the following reliefs –

 

  1. A declaration that the Defendant’s use of information, modus, templates and platform of the Claimant to launch her private project while being in the Claimant’s employment is a breach of trust and her fiduciary relationship with the   Claimant.
  2. An order of perpetual injunction restraining the Defendant from parading herself as 1st National President and Founder of WOMEN IN MANAGEMENT AND LEADERSHIP ASSOCIATION, which name is known widely with the acronym WIMA of the Claimant. The Claimant having conducted conferences with the       name since 2004.
  3. An order that the Defendant account to the Claimant for all fees and receipts and monies received by her at the launching of her Women In Management and Leadership Association in breach of trust while being in the Claimant’s       employment.
  4. The sum of =N=25,000,000.00 (Twenty five million naira) general damages.
  5. Cost of this action – =N=2,000,000.00 (Two million naira).

 

The General Form of Complaint was accompanied by the statement of facts, witness statement on oath, list of witness, list and copies of documents to be relied on at trial. On 15/5/15, an appearance was entered on behalf of the Defendant and all defence processes filed together with all requisite frontloaded processes.

 

  1. Case of the Claimant

The Claimant opened its case on 28/9/16 when it called one Olajide Oshinfowokan as its lone witness. The witness adopted his witness statement on oath dated 15/9/16 as his evidence in chief. Witness further adopted his additional witness statement of 15/9/16 as his additional evidence in chief and tendered 8 documents as exhibits. The documents tendered were admitted in evidence without objection and marked as Exh. C1-Exh. C8. The case of the Claimant as revealed from the pleadings filed is that it is a body corporate established by the Nigerian Institute of Management (Establishment) Act Cap. N149 Laws of the Federation of Nigeria, 2004; that its functions are spelt out in the said Act of the National Assembly and include (a) Determining what standards of knowledge and skill are to be attained by persons seeking to become members of the management profession and raising those standards from time to time as circumstances may permit, (b) Securing in accordance with the provision of the Act the establishment and maintenance of registers of members and publications from time to time, of a list of those members, (c) Regulating and controlling the profession of management in all its aspects and ramifications; and (d) Performing through the Council under this Act the functions conferred on it by this Act; that in furtherance of its statutory function, sometimes in 2004, initiating a training programme to update women involved in Management at various levels in Nigeria; that the programme was named WOMEN IN MANAGEMENT CONFERENCE and was organized under an umbrella body called WOMEN IN MANAGEMENT AND LEADERSHIP ASSOCIATION (WIMA); that the first WOMEM IN MANAGEMENT CONFERENCE was held on the 9/6/04; that Women in Management Leadership Association was the umbrella body that kept the women unified for effective monitoring and mentoring by the Claimant; that the Defendant was an employee of the Claimant who joined the institute on 1/1/08 as a Principal Manager and participated in planning and or organizing of the Claimant’s Women in Management and Leadership Conferences and was also in charge of the Claimant’s Women in Management and Leadership Association; that the Women in Management and Leadership Conferences organized by the Claimant under its Women in Management Association (WIMA) product is a developmental seminar and has run uninterrupted from 2004 till date; that the conferences are anchored and coordinated by the Claimant’s staff year after year and that Defendant was one of such Claimant’s staff.

 

Defendant further averred that in the course of her employment and in the course of her duties for the Claimant, the Defendant anchored and coordinated the Claimant’s Women in Management and Leadership Conference held between 2009 – 2010; that following the huge successes recorded at Women in Management and Leadership conferences, the Claimant suggested and proposed the registration and institutionalization of Women in Management and Leadership Association as an offshoot of the Claimant to keep a bond between women in management and leadership and the Claimant; that the Defendant was privy to the Claimant’s proposal; that the Defendant surreptitiously registered Claimant’s proposed Association with the Corporate Affairs Commission for her personal benefit without the Claimant’s consent and authority in breach of trust/fiduciary relationship between her and the Claimant; that the Defendant being part of the Claimant’s team knows the nitty gritty and the modus and the template the Claimant deploys to organize the Women in Management and Leadership Conference; that the Defendant having registered the Claimant’s association for her benefit hid the fact from the Claimant; that while the Claimant was having deliberations and meetings to effect registration, the Defendant took part in such meetings without disclosing her traitorous conduct; that the Defendant has the Claimant’s template in organizing the Women in Management Conferences having been in a prime position in the Claimant’s institute and in respect of the organization of Women in Management and Leadership Conference; that as part of the Claimant’s team of organizers and as an anchor person and coordinator for the Claimant, the Defendant was entrusted with information and organizational details of WOMEN IN MANAGEMENT AND LEADERSHIP CONFERENCES which are deployed to organize successful Conferences. She held such information in trust for the Claimant.

 

It is the case of the Claimant that the Defendant is in fiduciary relationship with it; that in breach of the trust and fiduciary relationship with the Claimant, the Defendant deployed her vast knowledge of the Claimant’s WOMEN IN MANAGEMENT AND LEADERSHIP CONFERENCE to copy and launched her private and personal platform called Women in Management and Leadership Association (a body establishment by the Claimant but yet to be registered as a corporate organization which Defendant registered for herself) while still being an employee of the Claimant; that the Claimant was not aware of the Defendant’s breach of trust and fiduciary duty to the Claimant until after Defendant had launched her Association and some members of Claimant’s Women in Management and Leadership Association who could not attend called the Claimant to inquire about how they could get materials relating to the Association and that the Claimant then investigated and found that it was the Defendant who organized a parallel Management event equally called Women in Management and Leadership Association just as the Claimant’s Conferences. The Claimant was able to obtain the Defendant’s launching brochure. Claimant added that at the time material, the Defendant was widely known as an employee of the Claimant in the circle of women who are in the position of Leadership and Management in Nigeria; that in her advertisement to the public, the Defendant richly made use of her status which misled and deceived the public to think and believe that Defendant’s Conference was that of the Claimant; that the Defendant ran her private organization as WIMA an acronym of Claimant’s WOMEN IN MANAGEMENT AND LEADERSHIP ASSOCIATION and that the Defendant engaged in her private venture for self-aggrandizement and ego making use of the Claimant’s Women in Management and Leadership Conferences template in breach of trust and fiduciary relationship with the Claimant.

 

Under cross examination, CW1 stated that his schedule of duty is management of employment agreement of the staff; that he was given a job description when he assumed duty and also got to know of his schedule during interview; that his letter of appointment did not specify his job description but his designation was stated; that his job description was handed over to him; that the deposition in paragraph 10 of his Oath was made in 2007 and was not made in his presence; that it was made by the Board of Claimant; that it was made at a Board Meeting and information passed to staff; that the dissemination was verbal at a meeting involving all staff; that he could not remember specifically when; that as at 2007 the staff strength of the Claimant was about 90; that the meeting was held at the Auditorium of the Claimant; that his reference to Board is indeed Council of the Claimant; that staff were briefed after Council meeting by Secretary to the Council; that  WIMA is the only Association I know that has been formed since he joined Claimant; that he is not a Lawyer and hence may not be able to flip through the Account and make specific reference to its provisions; that he was not at any of the meetings referred to in paragraph 11 of his Oath; that he does not know Defendant’s shareholding in the WIMLA; that he does not know if the WIMLA has shares; that he does not know the names of those who called to make enquiry about WIMLA; that the Defendant is a member Nigeria Institute of Management; that a person need not be a staff of the Claimant to use MNIM; that he does not have an alternative candidate respecting our relief B. The WIML Conference still holds every year till date.

 

  1. Case of the Defendant

On 13/12/16, the Defendant opened her defence and testified as DW1. The Defendant adopted her witness statement on oath dated 15/5/15 as her evidence in chief and tendered 9 documents as exhibits. Baring objection, the documents were admitted in evidence and marked as Exh. D1-Exh. D9 respectively.

 

The case of the Defendant from the pleadings filed is that prior to the formation, registration and/or the incorporation of the Registered Trustees of Women in Management and Leadership Association (WIMA), neither the Claimant nor any other organization had conceptualized, formed, organized, registered or incorporated the same organization or any other organization related thereto; that WIMA is not an offshoot of any programme, concept, design or conceptualization of the Claimant; that the Claimant has no equivalent of WIMA or any women’s wing that caters for women or that shares the vision and mission of WIMA; that she joined the Claimant in 2008, I have not at any time or under any circumstance been in charge of any Association of the Claimant known or cognizable as Women in Management and Leadership Association or any other Association whatsoever under the aegis of the Claimant, as there was no such association; that the Claimant did not at any time whatsoever have a programme or seminar under any Association known as Women in Management Association and that the Claimant did not at any time during her employment consider, moot, suggest or propose the registration or institutionalization of any association known as Women In Management and Leadership Association, or any association whatsoever, as no such association had ever been in existence, and I am not privy to any such phantom arrangement.

 

The Defendant added that the incorporation of the Registered Trustees of WIMA was not done in secret, it followed due process and procedures, including public notice of the registration of Women In Management and Leadership Association in several national dailies (in accordance with the Companies and Allied Matters Act), including but not limited to the Leadership newspaper of Wednesday, 11/7/11; that despite the public notice of the registration of Women in Management and Leadership Association, the Claimant did not at any point raise or channel any objection or opposition to the defendant or the Corporate Affairs Commission; that the Claimant had no template, pattern or organizational arrangement in place from which I could have copied; that she did not obtain or deploy the Claimant’s template, pattern or organizational arrangement for her personal use or any other use whatsoever, as there was no such template, pattern or organizational arrangement; that at all-time material to my employment with the claimant, she exhibited unprecedented goodwill, diligence, loyalty and commitment in service of the Claimant leading to the establishment of relationships between the Claimant and companies qua corporations like Nigeria Deposit Insurance Corporation (NDIC), Nigerian Ports Authority (NPA), and Nigerian National Petroleum Corporation (NNPC); that the commitment displayed and success recorded by her earned her several promotions and commendations from top executives of the claimant, even after the registration of Incorporated Trustees of WIMA with the Companies and Allied Matters Act; that at no time did the Claimant have a body, organization or association known or cognizable as “Women In Management and Leadership Association”; that the Incorporated Trustees of WIMA is not my private or personal platform but the joint initiate or highly successful women in different sphere of life; that at no time did she breach any duty owed the Claimant and there was/is no prohibition against her as at the time of her employment or now; that constricting her from associating freely with likeminded persons to form any association for the enhancement of humanity and promotion of the good of the society; that the Incorporated Trustees of WIMA was registered as an independent non-profit making organization for the benefit of women in particular, and the Nigerian society in general; that the Incorporated Trustees of WIMA is a different and distinct corporate body from the alleged inexistent body of the Claimant and defendant is not in competition, remotely or proximately with the Claimant; that she did not at any time made any misrepresentation to the public or any other person using the identity of the claimant and has not in any way, form or manner attempted to mislead or deceive or misled or deceived anyone into believing the incorporated trustees of WIMA is the claimant’s initiative; that the Incorporated Trustees of WIMA is a non-profit making organization and that neither she nor the members of WIMA has made or will make any amount whatsoever from any revenue generated by WIMA; that at no time did she use any information, platform, role attendance and/or acronym purportedly possessed or allegedly owned by the Claimant in the formation of any association whatsoever and that the Court dismiss the Claimant’s case for being vexatious, frivolous, disclosing no cause of action against her and lacking in merit and substance.

 

Under cross examination, the Defendant stated that she joined the Claimant as Principal Manager; that she met and anchored a developmental programme at Defendant; that the name of the programme is Women in Management Seminar; that she ran 5 successful seminars; that the achievements are in the area of money generated for the Claimant; that the Claimant never tried to register the Women in Management Seminar as an association; that the name of her association is Women in Management and Leadership Association duly registered under Part C of Companies and Allied Matters Act as a non for profit association; that efforts to register the Association while she was with the Claimant was resisted on the ground that Claimant was also a non-for profit organization. Witness testified further that t the end of 2009 Conference at Sheraton Hotel, participants met and decided to have a Women in Management Association and the way forward; that she and other women were the promoters of Women in Management and Leadership Association; that she was still at the Claimant at the time of registering the Association because the Claimant insisted the promoters should register it outside of the Claimant; that she did not notify the Claimant of the registration of Women in Management and Leadership Association because we were told by the Claimant to take it out of the Claimant; that the Claimant did not promote her while she was with Claimant; that the Claimant has nothing to do with the Women in Management and Leadership; that after the investiture, Claimant gave her a query which she answered; that there is a difference between Women in Management Conference of the Claimant and the Women in Management and Leadership Association they registered; that the vision of Women In Management and Leadership Association is to promote professional excellence among female managers and leaders and that the vision and mission of WIM and WIML are not the same.

 

  1. Submissions on Behalf of the Defendant

At the close of trial and pursuant to an order of Court, learned Counsel on either filed their final written addresses for adoption. The final written address of the Defendant was dated and filed on 6/3/17. In it learned Counsel set down a lone issue for determination as follows –

 

Having regard to the pleadings of parties and the entire circumstances of this case             vi-a-vis the evidence before the Court as well as settled position of law, whether the Claimant is entitled to any of the reliefs sought in this action.

 

Arguing this lone issue, learned Counsel submitted that the Claimant has not in any way or manner demonstrated its entitlement to any of the reliefs sought in pleadings before the Court. On the allegation that the Defendant made use of information available to her by virtue of being Claimant’s employee to organize a private venture in parallel with the Claimant’s Women in Management and Leadership Conference, Counsel submitted that the allegation is both baseless and unsubstantiated ; that the onus is on the Claimant to prove the allegation; that it is not enough to simply make a wild allegation that the Defendant made use of information, modus and templates available to her as an employee of the Defendant, but that the Claimant must show by credible evidence the nature of this information, modus and templates and how same was used by the Defendant in promoting WIMA and that the testimony of the Defendant remained unshaken under cross examination. Learned Counsel submitted further that the Defendant testified in chief to the effect that she did not make any representation to the public or any other person using the identity of the Claimant and has not in any way or manner attempted to mislead or deceive  anyone into believing that the incorporated trustees of WIMA is the Claimant’s initiative; that indeed prior to registration of WIMA the Defendant had approached the Management of the Claimant respecting same and the Claimant had rejected a suggestion to register WIMA and that Claimant did not raise any objection or opposition to the establishment or registration of WIMA. On the allegation that the Defendant tapped into the Claimant’s attendance of Claimant’s Women in Management and Leadership Conferences to invite attendance to her private venture, learned Counsel submitted that throughout the entire trial, the Claimant did not adduce evidence to substantiate this allegation or how it came about this conclusion; that the acronym WIMA does not belong to the Claimant; that there is no document before the Court linking the Claimant with WIMA; that Claimant’s pleadings is the only link the Claimant has with the acronym WIMA and that pleadings cannot constitute evidence, citing Ifeya v. SPDC (2006)8 NWLR (Pt. 983) 583 & NIM Ltd v. FBN Plc (2009)16 NWLR (Pt. 1167) 411 at 437. Learned Counsel urged the Court to dismiss the claims of the Claimant submitting that same are grounded on speculation and unfounded allegations.

 

Learned Counsel proceeded to argue on what he called ”ungrantability of the Claimant’s reliefs”. On this note, learned Counsel submitted that failure of the reliefs sought amounts to failure of the case of the Claimant; that there is no shred of evidence in support of the claim for declaration as sought citing Onavo v. Mba (2014)14 NWLR (Pt. 1427) 391 at 437-438. Counsel added that the Claimant failed to establish any entitlement to the principal declaratory relief sought; that the principal relief should be dismissed along with all ancillary reliefs as well. In the same vein, Counsel submitted that reliefs b and c are ungrantable in the absence of WIMA since by Section 596 of CAMA, WIMA is a juristic person with power to sue and be sued and since WIMA is not a party to this suit this Court cannot grant reliefs for account of ”receipts and monies” received by WIMA behind it. Counsel cited Ikechukwu v. Nwoye (2015)3 NWLR (Pt. 1446) 367 at 417.

 

Finally, learned Counsel submitted that the whole claim of the Claimant is unconstitutional and in clear violation of section 40, Constitution of the Federal Republic of Nigeria, 1999, as amended which grants the right to assemble freely and associate with other persons to every Nigerian. Counsel urged the Court to dismiss the case of the Claimant.

 

  1. Submissions on Behalf of the Claimant

The final written address of the Claimant was filed on 28/4/17. In it learned Counsel submitted 3 issues for determination. The issues are as follows –

 

  1. 1. Whether the Defendant by promoting and/or launchingWomen in Management             and Leadership Associationwhile still in Claimant’s employment breached Part 3,   Section 1.1. of the Claimants employee handbook she subscribed to.
  2. Whether the Defendant while in Claimant’s employment was not in a position of trust and in a Fiduciary relationships with the Claimant and her involvement inWomen in Management and Leadership Association is not a breach of Fiduciary     relationship to the Claimant.
  3. Whether Defendant promotion of herWomen in Management and Leadership    Association as WIMA and her enthronement as the 1st National President and Founder of (WIMA) while in Claimant’s employment does not entitle the        Claimant to demand for account from the Defendant.

 

On issue 1, learned Counsel submitted that Exh. C4 has a binding effect on the Defendant as with every other employee of the Claimant; that by Part 3 Section 1.1 of the Staff Handbook the Defendant is prevented from engaging in any private business and that by the evidence in chief of the Claimant’s witness the Defendant while in employment of the Claimant engaged in private business by promoting and launching Women in Management and Leadership Association. Learned Counsel urged the Court to hold that the Defendant breached Part 3, Section1.1 of the Employee handbook of the Claimant.

 

On issue 2, learned Counsel submitted that while in the employment of the Claimant the Defendant was in a fiduciary relationship with the Claimant whereby she was obligated to faithfully and diligently serve the Claimant and avoid conflict of interest; that a breach of fiduciary duty occurs when the fiduciary acts in the interest of himself rather than the best interest of the employer or principal; that the Defendant was a senior management staff of the Claimant which position exposed her to the roll of registered women members of the Claimant’s, the attendees of the conferences, how the conferences, the mobilization method and the modus of the conferences and that the Defendant used the information and the know-how acquired in the process of her employment with the Claimant to further the course of another organization. Counsel urged the Court to so hold.

 

On the issue 3 set down for determination by the Claimant, learned Counsel submitted that from the launching brochure it is clear that the Defendant promoted her Women in Management and Leadership Association as the Claimant’s Women in Management Association; that the Defendant did so by generously making use of the acronym WIMA which she boldly placed on the cover of Exh. C3; that there is enough evidence that the women who attended the Defendant’s Women in Management and Leadership Association launch were registered members of the Claimant and Claimant’s Women in Management conference attendees and that the Defendant admitted this much in her reply to query – Exh. C7. Learned Counsel finally urged the Court to enter Judgment in favour of the Claimant as sought.

 

  1. Decision

I carefully read and understood all the processes filed by learned Counsel on either side. I perused and evaluated all the exhibits tendered. I also listened attentively to the testimonies of the witnesses called at trial as well as watched their demeanor. In addition, I also listened with understanding to the oral submissions of Counsel both to the Claimant and the Defendant. Having done all this, I note that the bottom-line of this case is that the Claimant desires to be granted all the reliefs sought while the Defendant argues otherwise. Cognizance of this therefore,  I narrow the issue for the just determination of this case to be thus –

 

Whether the Claimant has proved its case to be entitled to all or some of the reliefs sought.

 

There is no dispute respecting the nature of the relationship between the Claimant and the Defendant as being simply that of employer/employee. It is also not contested that the controversies at stake arose during the pendency of that relationship. The position of the law has become rather elementary that a Claimant has the burden of proof to discharge in order to be entitled to positive judicial intervention. That burden is discharged by adducing cogent, credible and admissible evidence. The evidence contemplated here may be either oral, or documentary or both while documentary evidence is accorded more weight than oral evidence. It is indeed agreed that in a civil cause or matter, a Defendant need not prove anything until the Claimant satisfactorily discharges the burden of proof placed on him/her. It is the primary duty of the Court to evaluate evidence led by a party who approaches it for intervention and decide on the basis of the evidence if a case is made out. The only exception to the need for proof is in respect of clear and unambiguous admissions of material facts.

 

The Claimant sought 5 main reliefs in this case and I propose to examine each of them vis-a-vis the available evidence and determine whether or not each of the reliefs is proved for the Claimant to be entitled to same. The first relief sought by the Claimant is for a  declaration that the Defendant’s use of information, modus, templates and platform of the Claimant to launch her private project while being in the Claimant’s employment is a breach of trust and her fiduciary relationship with the Claimant. The law is trite that by Ajiboye v. Onigbenide (2014) LPELR-23117(CA) declaratory reliefs are not granted on admissions of the parties but by credible evidence which must satisfy the court that Plaintiff or Claimant is entitled to the declaration sought. Accordingly, for the Claimant to succeed, he must satisfy the Court on the evidence adduced by him, that he is entitled to the declaration. A Claimant for a declaratory relief must rely on the strength of his own case, and not on the weakness of the Defendant’s case. Thus, if he fails to discharge the onus, the weakness of the Defendant’s case will not help him and his claim will be bound to be dismissed. Thus, the Claimant must prove its entitlement to this relief by credible, cogent and admissible evidence. To be entitled to this relief, the Claimant must prove that the Defendant made use of its ”information, modus, templates and platform” to launch her private project while being in the Claimant’s employment. Of critical importance is the establishment and proof of the phrase ”information, modus, templates and platform”. What then are the evidence led by the Claimant in support of this head of claim? The Claimant tendered 8 exhibits in all at trial. The exhibits were marked as Exh. C1-Exh. C8. I perused and carefully evaluated all these exhibits. None of these exhibits is in proof of any alleged ”information, modus, templates and platform” of the Claimant allegedly used by the Defendant.

 

The Association to which the Defendant was linked is called Women in Management and Leadership Association. The annual seminar which the Claimant was organising was called Women in Management and Leadership Seminar. I dare say that the Defendant needed not offer any explanation respecting anything until the Claimant has proved its case by sufficiently credible and cogent evidence. This is because, the law does not even allow a Claimant to rely on the weakness of the case of the Defendant for the success of his case. However, I have evidence of the Defendant in chief to the effect that Women in Management and Leadership Association is not her private property or venture but that it was registered under Part C of the Companies and Allied Matters Act, 1990 by like-minded women and has a Board of Trustees. Now, Exh. D7 is a page 50 of 27th of July 2011 edition of Leadership Newspaper. That publication was a ”Public Notice” of the proposed registration of Women in Management and Leadership Association and calling on members of the public who might want to object to the proposed registration to forward same to –

 

”Registrar General, Corporate Affairs Commission, Plot 420, Tigris Crescent, Off Aguiyi Ironsi Street, Maitama, PMB 198, Garki, Abuja, within 28 days of this           publication”.

 

This piece of evidence sufficiently punctures the averment of the Claimant that ”the Defendant was privy to the Claimant’s proposal; that the Defendant surreptitiously registered Claimant’s proposed Association with the Corporate Affairs Commission for her personal benefit without the Claimant’s consent and authority …”. Claimant alleged that it proposed to registered the said Association but that the Defendant surreptitiously registered same. Yet the Claimant did not avail the Court official communications, memos, minutes of meetings and so on where such proposal was made by the Claimant. In any event, with Exh. C7  a notice to the entire public of the proposal by the Trustees of the Association to register an association could not be said to be a surreptitious move. That notice was to the public at large as required by the statute. The Claimant as a public institution is a member of the public at large and could certainly not be heard to claim ignorance of that notice. Exh. D8 Certificate of Incorporation further reinforced the separate entity of Women in Management and Leadership Association. I note that notwithstanding Exh. D7, the Claimant did not raise any objection to the registration of Women in Management and Leadership. In any event, even if as argued by the Claimant that it proposed to register the Association, the fact remains that that was a mere idea. A mere proposal. An ordinary intention. The Claimant not having register its proposed association nor given notice of that intention to the public, it has no exclusive right (proprietary or intellectual or both) exercisable on the name. I find no cogent, credible and admissible evidence led by the Claimant in support of this head of claim. I have no hesitation in refusing and dismissing same. I so do accordingly.

 

The second relief sought by the Claimant is for an order of perpetual injunction restraining the Defendant from parading herself as 1st National President and Founder of WOMEN IN MANAGEMENT AND LEADERSHIP ASSOCIATION, which name is known widely with the acronym WIMA of the Claimant the Claimant having conducted conferences with the name since 2004. It appears to me that the crux of this head of relief is because of the similarity in the name of Women in Management and Leadership Association (WIMA) of the Defendant and Women in Management and Leadership Seminar of the Claimant. Indeed, the argument of the Claimant is even more respecting the use of the acronym WIMA. I have no evidence before me to the effect that the Claimant is a member of the Women in Management and Leadership Association of which the Defendant was allegedly invested as the 1st National President. Secondly, the Claimant had the option of objecting to the registration of Women in Management and Leadership Association when a public notice was placed informing the general public of the intended registration. Now, it appears to me and that is the way I see it that to grant this prayer will amount to the Court being used as an instrument to prevent the Association and the Defendant from the enjoyment of their constitutionally guaranteed right to freedom of association and the right of the members of that Association to chose their officers including their 1st National President. I find no proof of this relief as sought. It is safe for me to refuse and dismiss same. I have no hesitation in doing so and I so do.

 

The third relief sought is for an order that the Defendant account to the Claimant for all fees and receipts and monies received by her at the launching of her Women In Management and Leadership Association in breach of trust while being in the Claimant’s employment. I have found and held in this Judgment that Women in Management and Leadership Association is not a private property of the Defendant. I further find that the Defendant is just an ordinary member of the Association though an officer in it. It is on record and evidence that Women in Management and Leadership Association is a non for profit organization. Under Article 18(b) of the Association’s Constitution (Exh. D9), all funds of the Association shall be transferred to the Headquarters and by Art. 26 of the same Constitution, the income and property of Women in Management and Leadership Association (WIMA) howsoever derived shall be applied solely towards the promotion of the objects of the Association as set forth in its constitution and no portion of same shall be paid or otherwise transferred directly or indirectly by way of dividend, bonus, or otherwise however by way of profit to the members of the Association. The bottom line of these provisions is that indeed the Defendant does not have control over the funds or monies accruing to the Association and hence the inability of the Court to grant this relief. Unfortunately, the Claimant did not join the Association. I refuse this relief and dismiss same accordingly.

 

The Claimant sought as its fourth relief the sum of Twenty Five Million Naira (=N=25,000,000.00) as general damages. EFCC v. Inuwa & Anor. (2014) LPELR-23597 (CA) reiterated the settled principle of law in relation to general damages when it pointed out that general damages is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages a claimant for general damages does not need to specifically plead and specially prove it by evidence, it is sufficient if the facts thereof are generally averred. In other words, mere averments are sufficient for an award of general damages. But then the averments contemplated here must be within the verifiable context of the facts of the case. It is not just sufficient that there are averments. It is the loss which flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. See Garri v. Seirafina Nig. Ltd. (2008) ALL FWLR (Pt. 399) 434 at 454.  The averments must be a reflection of the consequence of the act complained of by the Claimant. This Court has noted thus far that the Defendant is not liable to the Claimant for any of the infractions complained of by the Claimant. There is therefore no basis for an award of general damages to the Claimant as sought. This relief is accordingly refused and dismissed.

 

Lastly, the Claimant sought award of cost of this action in the sum of  Two Million Naira (=N=2,000,000.00). The award of cost is exercise of discretionary power of a Court. Discretionary though, it must be exercised both judicially and judiciously and perhaps reasonably too. Ordinarily, award of cost is usually to reimburse the wining party of the reasonable expenses incurred in the judicial process. In the instant case, the Claimant has not won any of the reliefs it sought against the Defendant. What then will be the basis of award of cost to it in this case? I see none. I cannot find any either. This relief is refused and dismissed accordingly.

 

Before I draw a curtain on this Judgment, it is imperative that I make a comment or two in the passing. My attention was drawn to the decision of this Court in Dr. (Mrs) Ebele Felix v. Nigerian Institute of Management Suit No. NICN/LA/321/2014 delivered on 4/7/2017 by Hon Justice B. B. Kanyip the Presiding Justice of Lagos Division of this Court. The Defendant in this case was the Claimant in that case while the present Claimant was the Defendant in it. The Court found substantially for the present Defendant in that case. Learned Counsel to the Claimant in this case informed the Court that he was aware of that decision. That decision was detailed enough and encompassed almost all the issues raised by the Claimant for determination in this case. This case ought not have been filed in the first place in the light of that decision. Even if it had been filed before that Judgment was delivered it ought ordinarily have been withdrawn upon the delivery of that Judgment. Learned Counsel to the Claimant in this case ought to have properly advised his client in the light of that decision which I am not aware has been appealed against. It is certainly the duty of Counsel to properly advise his client taking cognizance of judicial decisions of which he is aware. Was the Claimant offered proper and adequate legal advice in this case? In some jurisdictions, no doubt appropriate sanctions would follow conduct as this!

 

Finally, for the avoidance and for all the reasons as contained in this Judgment, the entire case of the Claimant is dismissed for lack of proof by credible, cogent and admissible evidence. The Claimant is ordered to pay to the Defendant cost of this proceedings assessed at =N=100,000.00 only.

 

Judgment is entered accordingly.

 

 

____________________

Hon. Justice J. D. Peters

 

Presiding Judge

admin

Website:

Related Story