Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE OYEWUMI. O.O BETWEEN DATED 27TH OF MAY, 2015 SUIT NO: NICN/LA/335/2013 MR. CHESTER ONYEMAECHIE UKANDU - CLAIMANT AND MAINSTREET BANK REGISTRARS LIMITED -DEFENDANT REPRESENTION- Paul I. Okoh for the claimant Dr Charles Mekwunye For the defendant JUDGMENT The claimant on the 21st of June, 2013 filed a complaint against the defendant praying the following reliefs: 1. The sum of N100, 916,500 being the claimant final or terminal benefits as the managing director of the company. 2. An order directing the defendant to pay interest on the said investable sum of N100, 916,500 at the rate of 22% per annum from 1/3/2012 until judgment sum is liquidated. It is the case of the claimant that he was employed by Afribank in 1992 and he rose to the position of Assistant General Manager in 2003 and later appointed as the first Managing Director of Afribank Registrars limited on 13/1/2005. He averred that upon assumption of office as the pioneer Managing Director of the defendant company, he worked tirelessly to see to the success of the defendant company having spent 20 years of his productive life in the employment of the defendant. He averred that by the defendant’s minutes of meeting dated 13/09/2006, the defendant Board of Directors resolved that all existing staff under Afribank Registrars department whose services would be required by the defendant should resign their appointment with Afribank Plc and enjoy the defendant’s new remuneration package. The claimant indicated his intention to resign and did resign from the defendant’s services and his appointment was regularised. He averred that upon resignation, he was paid his severance benefits. That by mail dated 10/02/2012 he was informed by the defendant that he is entitled to the sum of N100, 916,500 as terminal benefits but the defendant has refused to pay the claimant. He stated that during his tenure as the Managing Director, the defendant's company share holders had good returns on their investment and he left behind a financially strong company with no attendant risks or liabilities. That the breakdown of his terminal benefit in the sum of N100, 916,500 is calculated as follows: annual basic salary plus all allowances for every year of service up to a limit of 5 years less performance allowance of N5,000,000.00 and other allowance of N10,000,000 which annual emolument aggregates to N20,183, 300 x 5. Claimant avers that he has formally demanded his benefit from the defendant but has refused/neglect to pay same till date. That as a result, he has lost all his income therefrom. The claimant at the trial of this case tendered in support of his case documents which were admitted and marked as Exhibits CU1-CU18. It is the defendant’s case that the claimant voluntarily resigned as Managing Director of the defendant’s company. That the claimant was not/has never been an employee of the defendant as his appointment as Managing Director of the defendant was on secondment by Afribank Nigeria Plc. The defendant averred that no terminal benefits and or entitlement for the claimant was ever deliberated or approved by the defendant or its Board of Directors and the meeting of 13/09/06 relied upon by the claimant is not the minutes of meeting of the defendant as the said minutes was not signed by the chairman of the Board of Directors; the purported minutes contains attachments which are extraneous to the minutes; e.g the Board Paper Remuneration Package for Staff and appendix 1 and Appendix II. That the minutes of the board of Directors meeting held on the 13/09/2006 starts at page 1 and ends at page 10. Defendant averred further that the letter of employment dated 20/09/2006 was fabricated as the letter did not emanate from the defendant and the defendant company does not have a handbook neither has it issued any staff handbook to any of its staff or ex-staff. Defendant in denial of paragraph 10 of the claimant’s statement of fact stated that the funds accrued by the defendant in its financial statement contained in the Annual Return for 2011 are mere savings of the defendant earmarked for a purpose which the defendant is free to change at any future date. Defendant averred that few months to the claimant’s resignation in 2011, he instructed the Head of Accounts Mr. Adeola Agbogunleri to prepare the terminal benefits of all staff of the defendant company, using the unapproved handbook. The total amount computed as terminal benefits of all the staff by the claimant amounted to N271,000,000.00( Two Hundred and Seventy one Million Naira). The claimant also instructed the Heads of Accounts to further separate the sum into a fixed deposit account. On November 9, 2011 the claimant resigned his appointment from the defendant giving its 3 months notice, but before the expiration of the notice, he instructed the Head of Accounts to prepare his final entitlement for him based on terminal benefit the head of Account had prepared initially. Claimant again instructed the Head of Accounts to remove his loan on the two official cars which were never approved. The claimant further instructed the Head of Accounts to communicate to him his final entitlement in an internal memo format addressed to the claimant under the signature of the Head of Accounts. Defendant continued that internal memos are never used to communicate terminal benefits as the Admin department of the defendant will formally write on its letter head paper communicating benefits and signed by the chairman in the case of the managing director. That the claimant upon resignation had an attendant liabilities of N2,000,000,000.00 (Two Billion Naira only). That the claimant has left unsatisfied mortgage loan due to the defendant in sum of N40,558,084.00 (Forty Million, Five Hundred and Fifty Eight Thousand, Eighty-four Naira) and denies that the claimant is entitled to the sum of N100,916,500 and the basis of calculating/ computing same is non-applicable. That the purported financial statement contained in Annual returns 2011 as pleaded by the claimant is irrelevant and inadmissible as the claimant is not the maker of the purported financial statement and admission thereof will offend the Evidence Act provisions against the rule of hearsay evidence; it is opinion evidence of an expert not made at the behest of the court; the financial statement is not an approval for the payment of terminal benefits to the claimant; the financial statement only dealt with accrual of terminal benefits of a company which was and is still a going concern; the financial statement is not part of the contract of employment between the claimant and the defendant and the terms of contract of employment of a staff including but not limited to staff handbook are not approved in or by a financial statement. The defendant traversed that it is not obliged to pay to the claimant its terminal benefits as it is not the employer of the claimant and the claimant’s case does not disclose any cause of action against it and urged the court to dismiss same for being vexatious and frivolous. The defendant by way of counter claim dated the 21st of October, 2014 averred that the defendant to the counter-claim was a Managing Director of the counter claimant from 2005 to February 2012 when he voluntarily resigned. That in November, 2008, the defendant applied for a mortgage loan facility and same granted to him in the sum of N40,000,000.00 with an interest rate of 5% per annum repayable in 4years. In June 2009, the defendant applied for an upgrade of the mortgage facility in the sum of 10 Million Naira and same was granted to him with an interest rate of 5% per annum repayable in 4years. Counter claimant averred that liquidation of the mortgage facility was to be through direct deductions from the defendant to counterclaimant’s salary by the counterclaimant and direct payments by the defendant or both. That direct payment have been made by the defendant in sum of N18,694,520 Million Naira and N747,395.86 was deducted by the counterclaimant in satisfaction of the charge which makes the total amount liquidated the sum of N19441,915.86 Million Naira. That the outstanding sum of N40,558,084.14 which includes the sum plus interest remains unsatisfied. It is the counterclaimant averment that the defendant took away the official cars that is the Prado car and the Range Rover car with a net value of N9,479,166.71 and N7,500,000.00 respectively making a total of N16, 979,166.71. That the total debt owed by the defendant currently stands at N57,537,250.80 Million Naira and he is bound to liquidate same as he is in breach of contract by refusing to pay. Upon these facts the counter claimant claims as follows: a. The sum of N57,537,250.80 Million Naira being the total outstanding debt sum and accrued interest thereon as at 15th July, 2013. b. INTEREST at the rate of 5% per annum on the sum claimed from the 15th July, 2013 till judgment date. c. INTEREST at the rate of 20% per annum on the final judgment sum from date of judgment till the entire judgment sum is liquidated. d. AN ORDER granting the counterclaimant costs of this action. e. A DECLARATION that property situated at No 14 Ayodeji Oyinlola Street, Ajao Estate, Anthony village, Lagos was the subject of the mortgage facility granted to the defendant to counterclaimant, and that same should be attached as the property to be sold for the repayment of the loan on default of payment by the defendant to counterclaim. f. AN ORDER to sell the said property situated at No 14 Ayodeji Oyinlola Street, Ajao Estate, Anthony village, Lagos for the repayment of the outstanding debts plus interest accrued thereon. g. GENERAL DAMAGES as assessed by this Honourable Court. h. Cost of this action. The claimant on the 8th of October, 2013 filed a reply to the statement of defence wherein he averred that he was appointed a director by the defendant with effect from 13/1/2005. That upon the directive of the board of directors of the defendant at its meeting held on the 13/09/2006, the claimant resigned his appointment, same was duly accepted by the company and his severance duly paid. He averred that the defendant company was in a sound state as at the time of retirement. That his employment letter dated 20/09/2006 was subject to the terms and conditions in the defendant’s staff handbook which the defendant adopted as regulating its relationship with its staff. That the provision of his terminal benefits was shown in the defendant’s financial statement for year ended 31/12/2011. Claimant in defence to counter claim denies that he voluntarily resigned as managing director of the counter claimant. That he received a car loan and N50,000,000 housing loan upon the terms in his letter of employment and the staff handbook and the counterclaimant’s statement of account does not reflect the true position of the account in that the claimant has so far repaid ; 2009 =N1, 194,520, 2010= 14,500,000; 2011= 3,747,395.86. Defendant stated that the counterclaimant’s statement of account reflecting N10,000,000 interest for 4 years was an upfront interest computation was not agreed upon by the parties. He averred that the cars were not official cars but were bought in exercise of his right under his letter of employment which states that the claimant is entitled to “2 vehicles jeep and 2.4 litres cars amortized over 4years with the right of purchase at net book value or 10% of cost whichever is lower”. That it was approved and granted the sum of N22 million loan for a jeep and a 2.4 litre camry car and with the consent of the counter claimant, he added the sum of N3.5Million Naira to the loan and bought the two jeep. Defendant averred that 50% of the outstanding loans (personal, car and mortgage) are deductible from the total value of the severance benefits while the balance shall be paid at an interest rate of 5% per annum for a term to be mutually agreed. That the defendant’s Head of Accounts sent an email dated 10/02/2012 to the claimant stating that he is entitled to the sum of N100,916,500 and the defendant after deducting the claimant’s liabilities is liable to the claimant’s to the tune of N58, 158, 415.86 and the statement of account of the defendant dated 15/07/13 are untrue and designed to mislead the court. He stated that the defendant/ counterclaimant has no defence in the claimant’s claim. Claimant testified for himself as CW, whilst the defendant's witnesses are Adetayo Ogunbanjo the Company Secretary of the defendant counter claimant and the Head of Account one Ekong Rosemary. The defendant on the 26th of November, 2014 filed its written address framing issues for the Court's determination; a. Whether the claimant was an employee of the defendant. b. If the answer to issue (a) is in the affirmative, whether the claimant is entitled to any terminal benefits(s) or any benefit under the purported staff handbook. On the defendant’s counter claim: c. Whether the claimant is not indebted to the defendant up to the tune of N40,558,084.14(Forty Million, Five Hundred and Fifty Eight, Thousand, Eighty Four Naira, Fourteen Kobo), being the outstanding unpaid sum on the mortgage loan granted to the claimant. d. Whether the defendant is not entitled to declaration and order of this Court that the property situated at No. 14 Ayodeji Oyinlola Street, Ajao Estate, Anthony Village Lagos was the subject of the mortgage facility granted to the claimant and that same should be sold in repayment of the outstanding debt of the claimant. e. Whether the claimant is not liable to pay the sum of N16,979,166.71(Sixteen Million, Nine Hundred and Seventy Nine Thousand, One Hundred and Sixty Six Thousand, Seventy one Kobo) to the defendant, being the net book value of the Prado car and Range Rover car which the claimant wrongfully from the defendant company. Learned defence counsel raised some preliminary issues as follows; Whether this court has jurisdiction to entertain this suit. He submitted that it is the Federal High Court that has jurisdiction to entertain all disputes and/or cases relating to Companies and Allied Matters Act. He cited in support Section 251(1)(e) of the 1999 Constitution as amended; BUREAU OF PUBLIC ENTERPRISES V REINSURANCE ACQUISITION GROUP LTD & ORS [2008] LPELR – 8560 (CA). That in the instant case, the claimants claim that he was a Managing Director of the defendant and retired as one and his terminal benefits and his claims fall under directorship under section 33 of the Companies and Allied Matters Act (CAMA). Also it is counsel’s submission that the claimant failed to satisfy a condition precedent to the exercise of the jurisdiction of this Court as the claimant being a shareholder of the defendant company ought to serve pre- action notice on the defendant company informing it of this suit. Whether the loose sheets photocopy of minutes of 13/08/2006 as frontloaded and tendered by the claimant is admissible in evidence. Counsel submitted that claimant despite that the defendant tendered its original minute book in Court still went ahead to tender his “loose sheets photocopy” of the purported minutes of that date which is clearly different from the minutes of the defendant and also contrary to the provisions of the Evidence Act, 2011. He cited the case of NATIONAL ELECTORAL COMMISSION & ORS V SUNDAY O. WODI [1989] 2 NWLR (PT.104) 444. Counsel urged the Court to hold that the defendant’s original minutes of 13/09/06 is admissible as same complies with section 241 of the Companies and Allied Matters Act. Whether the purported letter of employment dated 20th September, 2006 is admissible in evidence. Counsel submitted that as at the time claimant filed this suit, he averred in his statement of fact that he was appointed the Managing Director of the defendant in 2005 and did not plead any letter of appointment. The claimant also averred that he resigned from Afribank Nigeria Plc and his appointment with the defendant regularised vide a letter dated 20/09/06. It is in evidence Exhibit CU10 that claimant resigned his employment with Afribank Nigeria Plc on the 24th of November, 2006, hence could it be said that the claimant was working for the two companies at the same time between 20/09/2006 and 24/11/06 and the purported letter of employment tendered by the claimant was not signed by the chairman. Counsel submitted that the purported letter of appointment was issued by the claimant to himself in the course or in anticipation of this suit which makes same inadmissible to prove the claimant’s employment. Whether the defendant’s financial statement 2011 tendered by the claimant is admissible. (Exhibit CU 12). Counsel contended that claimant relied on the financial statement of the defendant for 2011 to falsely state that the defendant having made provisions for his terminal benefits cannot rescind from same. Counsel submitted that approval of terminal benefits are not found in the financial statements of a company but rather in the documents constituting the contract between parties or in a resolution duly passed by members at General Meeting as parties are bound by their agreement. He cited the case of LARMIE V DATA PROCESSING MAINTENANCE & SERVICES LTD [2005] LPELR-1756 (SC). Whether the court can rely on the purported staff handbook. Counsel posited that the purported handbook was fabricated and prepared by the claimant as the hand book did not emanate from the defendant. That the claimant under oath admitted in evidence that at the time of his employment in 2006 there was no staff handbook. He also stated that some part of the staff handbook was approved by the Board whilst some other parts were approved by the management that is himself. Upon further cross examination, claimant contradicted himself as to what parts were or were not approved either by the Board or the management. Whether the internal mail of 10th February, 2012 is admissible in evidence. Counsel stated that the internal mail of the 10th February, 2012 did not emanate from it as same was supervised, prepared and issued by the claimant to himself. He submitted that the claimant stated that he asked Mr Adeola Agbongunleri while in office for his entitlement and Mr Adeola gave same to him. That the claimant has resigned prior to February 10th, 2012 and no longer a Managing Director of the defendant and in such circumstances he would not be entitled to receive communication of its entitlements by way of internal mail. The claimant had admitted via written deposition that he still in office even after his notice had expired on 8th February, 2012 when he asked Mr Adeola for his entitlements. These facts show that the claimant did in fact supervise and or influenced the preparation of the mail of 10/2/2012. On issue one counsel posited that claimant who alleges that his contract of employment was wrongfully terminated has a duty to prove the terms of the contract. He cited these cases; ORJI V DORJI TEXILES MILLS (NIG) LTD [2009] LPELR -2766 SC; [2009] 18 NWLR (PT. 1173) 467 SC; OGBORU &ANOR V UDUAGHAN &ORS [2010] LPELR- 3938 (CA); [2011] 2 NWLR 538; BENJAMIN UKELERE V FIRST BANK OF NIGPLC [2011] LPELR-3869 (CA). Counsel stated that the only way for the claimant in an employment dispute to duly show that he was indeed employed by the defendant is by pleading and producing the letter of employment. He cited the case of FIICHARLES ORGAN & ORS V NIGERIA LIQUEFIED NATURAL GAS LIMITED &ANOR [2013] LPELR 20942 (SC). Continuing counsel stated that claimant relied on the purported letter of employment dated 20/09/2006 and in a bid to prove same contradicted himself on so many occasion under oath. The defendant stated that the claimant was seconded to the defendant company as a Managing Director and the signature on the purported employment letter is not that of Osa Osunde as the claimant may want the Court to believe. In prove of this defendant tendered the original copy of the financial statement of Afribank Registrar Limited of 31st March, 2006 and the certified True Copy of Osa Osunde’s letter of resignation dated 1st of June, 2008. Counsel submitted that the claimant fabricated the said letter of employment dated 20/09/06 and he has failed to discharge the burden placed on him by law and thus his claims must fail. On issue two, counsel contended that claimant had relied on the said letter to claim that he retired his appointment vide a letter dated 9th of September,2011 with effect from 9th of November, 2011 and therefore entitle to retirement benefits. He submitted that Articles 37 of the defendant’s Articles of Association clearly provides for the means by which a Director of the defendant company may vacate office and it was not provided that a Director shall vacate his office by retirement, voluntary or otherwise. He cited in support section 33 and 41 of the Companies and Allied Matter Act and the case of ENGINEERING SAMUEL DIDEN YALAJU AMAYE V ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD & ORS [1990] LPELR 3511 (SC); [1990] NWLR (PT.145) 422. He further submitted that the action of the claimant in retiring his employment, instead of either resigning or vacating same in one of the ways provided for by the Articles of Association of the defendant amounts to repudiation of contract between the claimant and the defendant. That the claimant having repudiated the contract and the defendant having accepted the repudiation cannot be compelled to discharge the obligation under the contract neither can the claimant sue on a contract that was repudiated by him. He cited the case of NEPA V ANGO (2001)LPELR -5933 (CA); [2001] 15 NWLR (PT 737) 627. It was the further contention of counsel that claimant also placed reliance on the purported staff Handbook which he alleged to be the defendant’s handbook. However, under oath, claimant admitted that there was no staff handbook. He also stated that some part of the staff handbook was approved by the Board whilst some other parts were approved by the management that is he. Counsel stated that it is clear that both the claimant and the defendant are in agreement that as at 2006 there was no staff handbook or any other document known as staff handbook. Counsel also stated that the document titled ‘Afribank Registrars Limited Staff Hand book’ relied on by the claimant was in contravention of Section 277 of the Company and Allied Matters Act. He did not declare the nature of his interest in the hand book or seek approval from the Board thus amounting to a breach of fiduciary duty. He cited the case of DIAB NASR& ANOR V ANTOINE ROSSEK [1973] LPELR -1946 (SC). Counsel urged the court to hold that claimant cannot benefit under the purported handbook. Counsel submitted that claimant relied on the minutes of 13/09/2006 to claim that the purported staff handbook was approved. Claimant under oath stated that apart from chapter 3 of the handbook, no other section was approved at the Board meeting of 13/09/06. He later stated that chapter 5 was also approved by the Board on the 13/09/06. As regards the minutes of meeting of 13/9/06, it is the argument of Counsel that the purported minutes of 13/09/06 with annexures were not the minutes of the defendant Board as its minutes does not contain annexure. That the claimant has not been able to show by evidence that the defendant falsified the original minutes book nor has he shown that the minutes book fails to comply with the provisions of section 241 of the Companies and Allied Matters Act. Counsel also submitted that the court is bound to take judicial notice of the practice of minutes recording by the defendant, in that the defendant company would not sign its minutes of Board meeting until same is adopted by the directors at the subsequent meetings as the correct records of proceedings and the claimant having not objected to same is estopped from denying the veracity of the original minutes of the Board of Directors 13/09/06 having admitted same on the 17th of May, 2007. Counsel urged the Court to hold that the defendant did not at its Board meeting of that date approved retirement or terminal benefit as alleged by the claimant. Counsel posited that claimant has falsely averred in paragraph 17 of his statement on oath that his terminal benefit was approved in the financial statement and provision for the payment of same in the financial statement 2011. Counsel submitted that approval of terminal benefits are not found in the financial statements of a company but rather in the documents constituting the contract between parties or in a resolution duly passed by members at general meeting as parties are bound by their agreement. He cited the case of LARMIE V DATA PROCESSING MAINTENANCE & SERVICES LTD [2005] LPELR-1756 (SC). That claimant’s purported letter of employment did not refer to or incorporate any financial statements or annual returns, neither did the purported staff book incorporate the financial statements 2011. The claimant cannot therefore lay any claim to any benefits under the annual returns or financial statements. He stated that the financial statement in 2011 was prepared at the behest of the claimant as the sitting manager of the defendant hence same should be treated with a pinch of salt as it cannot form the basis of any agreement between the claimant and the defendant. He urged the court to so hold. Counsel contends that the claimant is not entitled to the sum N100,916,500 as claimed as his terminal benefit because as evinced on the record of Court, claimant on his own accord retired his employment vide a letter dated 9/9/2011from the services of the defendant. That the claimant claim bordering on terminal benefits cannot be granted as his employment was not terminated and the court cannot grant a relief which was not sought. He cited the case of HON JUSTICE ADENEKAN ADEMOLA & ANOR V CHIEF HAROLD SODIPO & ORS [1992] LPELR-122 (SC). Counsel urged the court to hold so. On issue three, counsel contended that the defendant/counterclaimant granted an initial loan of N40,000,000.00 to the claimant/ defendant to the counterclaim in November, 2008 at the interest rate of 5% per annum. Defendant applied for an upgrade of the loan in the sum of N10,000,000.00 at the interest rate of 5% per annum and this was again granted by the counterclaimant. The defendant was able to pay the sum of N19,441,915.86 leaving an outstanding sum of N30, 558,084.14 on the principal sum while unpaid is all interest accrued on the loan sum in the sum of N2,500,000.00 per annum multiplied by 4years as agreed by both parties which gave the sum of N10,000,000.00. Thus if the sum of N10,000,000.00 is added to the principal sum of N30, 558,084.14 unpaid it gives N40,558,084.14. Counsel submitted that claimant did not challenge the defendant averment that he took mortgage loan of N50,000,00.00. He admitted vide his defence to his counter claim that he has paid the sum of N19,441,915.86 but what defendant contends is the 5% interest in the sum of N10,000,000.00. it is trite that facts admitted need no further prove. He cited the case of AJIBADE V STATE [2012] LPELR-15531 (SC). Counsel stated that the grouse of the defendant is that there was no express agreement as to the upfront interest computation. Counsel submitted that it is the law that where a person holds on to another’s money for a long time without repayment, such other person is entitled to compensation by way of interest. He cited the case of AFRICAN INTERNATIONAL BANK LTD V INTERGRATED DIMENSIONAL SYSTEM LTD & ORS. On issue four, counsel stated that the loan sum in N50,000,000.00 granted the defendant was a housing loan. Counsel submitted that the Court has the power to order the sale of the property situate at No 14 Ayodeji Oyinlola Street, Ajao-estate, Anthony Village, Lagos in satisfaction of the counterclaimant’s debts. That the defendant ought to have ensured that he deposited his title deed to the above stated property for which he took the loan in order to ensure that same was duly secured but he failed to do so. He urged the court to so hold. On issue five, counsel submitted that the claimant took away two official car namely; Prado Jeep in the sum of N9,479,166.71 and a Range Rover Jeep in the sum of N7,500,000.00 making a total sum of N16,979,166.71. The defendant/ claimant did not deny his indebtedness but rather posit that his debts is only in the sum of N22 million. Defendant/claimant relied on the internal mail issued by the Mr. Agbogunleri date 10/02/2012 stating that he was granted a N22Million loan for a jeep at N13million and a Camry car at N9million. He also relied on the counterclaimant’s minutes dated 20/1/2011. Counsel submitted that the defendant/ claimant on oath could not show where in the minutes the Board approved the purchase of a Prado car and he had stated in further statement on oath that with the consent of the defendant, I added N3.5 million to the loan. He submitted that the defendant/ claimant has been unable to show either in the minutes or via any document that the sum of N22 million loan was granted to him and that he added N3.5million thereto to purchase the two cars. That by Exhibit CU 20, the board only approved the purchase of the Toyota Prado jeep and not the Toyota Camry or the Range rover and there was no minutes or resolution or any document to show that the board either approve the loan of N22 million for the defendant or that he added N3,500,000.00 to any amount advanced to him by the counterclaimant in purchase of the Prado and the Range Rover. Thus it is clear that defendant breached his fiduciary duty and used the counterclaimant’s money in the purchase of an additional Range Rover at the sum of Range Jeep in the sum of N12.5 million without the consent of the counterclaimant. However, the counterclaimant in its magnanimity did not claim the purchase price but rather claims the value in the sum of N7,500,000.00. Counsel urged the court to hold that the counterclaimant is entitled to recover the sum of N16,979,166.71. Counsel urged the court to hold that claimant has failed to prove his case and the defendant having proved it counterclaim is entitled to his claim. The claimant on the 16th of February, 2015 framed five issues for the Court’s determination; i. Whether the claimant was employed by the defendant as managing director. ii. Whether the claimant had terms of employment. iii. Whether the terms in minutes of 13/09/2006 and the hand book are binding on the defendant. iv. Whether the claimant validly retired in February 2012. v. Whether the claimant is entitled to his claim. In response to the preliminary issues raised by defence counsel, counsel submitted that the fact that claimant has shares in the defendant’s Company does not give the Federal High Court the jurisdiction to entertain the matter because the claimant claim is basically his retirement or terminal benefits. He cited the case of OSISANYA V AFRIBANK PLC [2007] 4 MJSC 128 @140-141. He stated thus that a pre-action notice is not a sine qua non to the commencement of the claimant’s action in this court. On issue one, counsel submitted that claimant gave evidence and tendered document to prove that he was employed by the defendant as its Managing Director. That he was appointed with effect from 13th January, 2005 after he resigned his employment with Afribank Nigeria Plc as per the minutes dated 13/09/2006 directed that all former employees of Afribank Nigeria Plc resign and become full employees of the defendant and exhibit CU11 dated 28/09/2006 reads “further to your appointment as the Managing Director....” that by exhibit CU4 his salary was reviewed as Managing Director. Counsel submitted that all these reveals that the claimant was employed by the defendant as its Managing Director. On issue two, counsel submitted that claimant in proof of his terms of employment tendered the minutes of 13/09/06 and the staff hand book. The defendant opposing the document brought the pasted version of the minutes in a minutes book and tried to impress the Court to accept it as its original document. Counsel submitted that claimant presented a remuneration package to the Board of Directors which was approved and signed by the Chairman of the board on the 13/09/06. That exhibit CU9 should be given full weight including the attachment as presented by the claimant to the Board of Directors on 13/09/06. Counsel submitted that the staff handbook exhibit CU5 also formed part of the claimant’s terms of employment as it was used by the defendant at the material time to regulate its affairs with the claimant while he was in employment. He stated that exhibit CU4 stated therein that “your employment shall be governed by the company’s policies and procedures as contained in the Employee handbook as may be amended from time to time”. That the financial statement 2011 exhibit CU12 signed by the chairman and filed at the Corporate Affairs Commission by the defendant secretary relied on the staff handbook. Counsel stated that financial statements are binding on a Company if they comply with Section 343 of Companies and Allied Matters Act. He cited the case of NIG WIRE IND LTD V EUROPEAN TRADE & FIN PLC [1997] 6 NWLR (PT 510) 632 @ 648. Counsel posited that the defendant’s allegation that exhibit CU5 is forged lack legal basis as the parties used exhibit CU5 all through the claimant’s stay in the defendant’s company from 2008 when it was printed till 2012 when claimant retired. Counsel urged the court to hold that defendant is bound by the terms in exhibits CU5 and CU 9. On issue three, counsel contended that by the Board Meeting dated 13/09/06 and signed by its chairman, approved certain terms of employment for its staff which were incorporated into exhibit CU5 and also gave the management the power to determine other benefits. It is also counsel’s contention that defendant’s submission that the signature of the chairman were dissimilar lacks legal basis as the fact that the signature are dissimilar does not mean that the signature are not that of Mr. Osa Osunde the defendant’s chairman. That the DW1admitted under oath that the signature of the chairman on exhibit CU9 and exhibit CU 21 are the same. On issue four, counsel submitted that by Exhibit CU5 clause 3.14 stated that “employee who attain the age of sixty shall proceed on mandatory retirement at the company’s discretion employment is deemed to terminate on the last day of the notice period. An employee can however go on voluntary retirement or early retirement after attaining the age of 45 years and above or at the discretion of the management”. Sequel to the above claimant gave a notice to the defendant to retire voluntarily exhibit CU3 and vide its resolution accepted exhibit CU 7 dated 14th November, 2012. He stated that the submission of the defendant on the ways the claimant could only resign was a misconception of the status of a Managing Director. That claimant had a contract of service regulating his employment relationship and same states how his employment will be determined. Counsel urged the Court to discountenance the submission of defendant. On issue five counsel submitted that the counter claim of the defendant is misconceived. That the claimant’s letter of appointment and staff handbook are very clear on car ownership scheme. Counsel submitted that under the car ownership scheme an employee becomes entitled to the car(s) after 4 years of its purchase without payment therefore. But if an employee chooses to buy the car(s) before the 4years period, he buys at the net book value or 10% of the original price whichever is lower. That the claimant's option to buy the cars are implied by exhibit CU 18. Also the claimant part financed the purchase of the 2nd Jeep 2011 with the hope that the car will be his personal cars eventually. The fact the claimant provided N3.5 million was uncontroverted. Counsel submitted that the method employed by the head of Accounts in calculating the mortgage loan is in consonance with clause 3.15 B(II) of Exhibit CU5 which reads “ loan repayment on outstanding loans 50% of all outstanding loans (personal car and mortgage)” shall be deducted from the total value of severance benefits while the balance shall be paid at an interest rate of 5% per annum for a term mutually agreed. That the claimant net’s entitlement is N58,158,415.86S after deducting N42,758, 084.14 from the claimant terminal benefit of N100,916,500. Counsel submitted that defendant could not lay hold of any document authorizing it to charge interest at the rate of 5% per annum. Thus the counter claim lacked credible evidence and proof. The defendant on the 12th of February, 2015 filed a reply on points of law in response to the claimant’s written address where counsel contended that the Claimant in response to the Defendant Preliminary, issues has argued that this matter relates to retirement benefit or terminal benefit as an employee and not wrongful termination or for his removal or appointment as a director or in respect of his share holding in the defendant Company. He submitted that the Claimant's claim confers jurisdiction on this Court and in support cited the 1999 Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration Act, 2010 effective on the 4th March, 2011), which provides that the National Industrial Court now has exclusive jurisdiction to determine civil causes and matters relating to any labour and employment disputes to the exclusion of any other Court. He submitted that the issues for determination before this Honourable Court is the retirement benefit or terminal benefit as a Managing Director of the Defendant which is outside the purview of this Honourable Court's jurisdiction as provided to it under Section 254C (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He cited the cases of GAFAR V. GOVT., KWARA STATE [2007] 4 NWLR (PT. 1024) 375 AT 403 PARAGRAPHS. F - G, 408 18: PARAGRPHAS. D – E; ABBA &ORS v. INEC &ANOR [2010] LPELR-9126. He submitted that the claims of the Claimant is based on whether the Claimant was appointed Managing Director of the Defendant or Seconded as Managing Director of the Defendant by the Defendant's parent company and the remuneration/terminal benefit of a Managing Director cannot be determined without making reference and/or interpreting the provision of Companies and Allied Matters Act, Cap C20, LFN, 2004 and also the Articles of Association and Memorandum of Association of the Defendant. This is because the Claimant was the Managing Director of the Defendant and his relation with the Defendant is guided by both the Articles and Memorandum of the Defendant and by Companies and Allied Matters Act, Cap C20, LFN, 2004. He cited Section 41 of the Companies and Allied Matters Act and stated that the remuneration of a Director is provided for under Section 268 (1) for the remuneration of a Director and 271 of Companies and Allied matters Act provided for the conditions which the Director must complied with in order for the company to approve the Directors benefit and these provision are applicable to the Claimant's claims and only the Federal High Court is the Court that has jurisdiction to hear this matter. Counsel posited that claimant in his written Address, contended that pre action Notice is not a sin qua non to the commencement of the Claimant action and also that the Defendant has waived his right to complain. He submitted that Article 48 of the Articles of Association of the Defendant Company expressly provided for pre action Notice as condition precedent for a member of the Company who wants to institute an action against the Company. This condition was not complied with by the Claimant. He cited the case of NIGERCARE DEV. CO. LTD V. A.S.W.B [2008] 9 NWLR (PT.1093) 498 AT 518, PARAS. E-G (SC) where the Supreme Court Per Ogbuagu, J.S.C held that "The failure to serve a pre-action Notice on the defendant, gives such defendant, a right to insist on such Notice, before the plaintiff may approach the court. In other words, that non-service of a pre-action Notice merely puts the jurisdiction of a court on hold pending compliance with the pre-condition. A number of cases were referred to therein. In fact, failure to serve the said Notice amounts to an irregularity that renders the suit incompetent Continuing he submitted that parties are bound by the terms of their contract, he cited in support the case of A.G. FERRERO & COMPANY LTD. v. HENKEL CHEMICALS NIGERIA LTD [2011] LPELR-12(SC) where Supreme Court Per ONNOGHEN, J.S.C. (P.20, Paras.B-C) "It is settled law that parties are bound by the contract they voluntarily enter into and cannot act outside the terms and conditions contained in the said contract." That the failure of the Claimant to give pre-action Notice to the Company before the institution of this action is contrary to the binding contract between the Claimant as a Director and the Company and the Defendant has not waived its right of complaint, as the Defendant has contended the competency and the jurisdiction of this Honourable Court to hear this suit. Counsel adopting the issues stated by the claimant in his written Address submitted that the issue of the of the Defendant has never been that the Claimant was not the Managing Director of the Defendant Company, however, the case of the Defendant has been that the Claimant is on secondment to Defendant Company and not a direct employee of the Defendant. He stated that this position was averred in Paragraphs 4, 6, 8 and 16 of the Statement of Defence and same was also corroborated by it witness but was not controverted by the Claimant. That is trite law that evidence not controverted need no further prove and he cited the case of HILLARY FARMS LTD &ORS V. M. V MAHTRA &ORS [2007] LPELR-1365(SC); [2007] 14 NWLR (Pt.1054) 210, In response to claimant’s written address, counsel contended that it was able to prove before this Honourable Court that the documents tendered by the Claimant did not emanated from the Defendant. He stated that the appointment letter was dated 20/09/2006.Claimant stated that the handbook was only printed sometime in April 2008 in this case, in a sister's case Suit No: NICN/LA/421/2013, INOMWAN BENSON VS. MAINSTREET BANK REGISTRARS LIMITED he also testified that the Handbook was printed in May 2008. He could not tell this Honourable Court which handbook his appointment letter referred to. That the Defendant pleaded and gave evidence that it’s Chairman did not sign the Claimant's letter of Appointment. Counsel submitted that the material inconsistencies in the testimony of the claimant are such as will render him unbelievable Counsel submitted that position of the law is where a document tendered in evidence has missing pages, adding pages or is altered in any form, such a document lacks credibility. The minutes of meeting of 13/9/2006 as tendered by the Claimant is an altered document as it has additional pages/attachment which are not part of the minutes and which was not pleaded. He stated that Section 160(7) of the Evidence Act cited and relied upon by the Claimant is inapplicable in all respects and distinguishable from the facts and issues presented for the determination of this Court. He cited Sections 89 [a] of the Evidence Act, 2011 and contended that the Defendant's Original Minutes Book having been tendered in Court and following which the Court by itself made an extract or exact copy of the Minutes of the Defendant's Board of Director Meeting of 13th September, 2006 Exhibit CU21, then Exhibit CU 9 together with the extraneous materials, additions or annexure after the signature page is inadmissible in law. Counsel urged the court to so hold Counsel argued that claimant posited that the Defendant's Board of Directors, at its meeting of 13th September, 2006 approved the terms and condition of his employment and this terms and conditions is what was reproduced into exhibit CU 5 -Handbook. He submitted that it is nowhere contained in the Claimant's pleadings that the Defendant's Board of Directors, at its meeting of 13th September, 2006, delegated power to the Management (the Claimant) to produce and/or print the Handbook without it consent approval and the evidence led by the defendant on the signature of Mr. Osunde, has clearly led credible and admissible evidence to dislodge the veracity of the purported letter of appointment of 20th September, 2006 and this has not been controverted by the Claimant. Counsel also submitted that nowhere contained in the Claimant's pleadings did the Defendant's Board of Directors, at its meeting of 13th September, 2006, delegated power to the Management (the Claimant) to determine other issues and benefit as he may deem fit. He stated that the Claimant had pleaded and placed evidence before this Honourable Court that his claim on terminal benefit is as the Managing Director of the Defendant and same is spelt out in the Defendant's purported handbook and going by the Claimant testimony before this Honourable Court, it is clear that the Claimant determined the terms and condition of the handbook which is the contract with himself by himself. Counsel posited that the Claimant, as Managing Director, cannot effect the drafting and/or preparation of a staff handbook and thereafter, refuse and/or fail to obtain the approval of the Board of Directors for the staff handbook and be permitted to benefit there from. He urged the court to so hold. Counsel submitted that the retirement of the Claimant is not valid. He merely resigned as the Managing Director of the Defendant, its Board of Directors and the Claimant as Managing Director are bound by Article 37 of the Articles of association and Section 271 of Companies and Allied matters Act and any acts contrary to both provisions are illegal and void. He urged the Court to so hold. Counsel in response to the Claimant's claim stated that claims for his terminal benefit, however, the Claimant cannot be entitled to terminal benefit when his employment with the Defendant was not terminated. He emphasized that a Court cannot give what a party did not ask for this principle of law. He cited the case of SODIPO V. OGIDAN [2007] ALL FWLR (Pt. 393) 67 at 86, paras. G - H (CA). Counsel urged the Court to hold that the claimant is not entitled to any of his claims. Counsel stated that defendant having duly proved its counter claim is entitled to judgment as per its reliefs. Furthermore, the Claimant in his pleadings to the defence of Counter Claim admitted to the Claim of the Defendant. Counsel urged the court to so hold. I have given an ample consideration of the processes filed by the parties, the nature and circumstances of this case, the argument contained in the respective written addresses of learned counsel vis a vis the documents on record as a whole. It is in my humble view, which I deemed expedient in the circumstances of this case to do is to adopt issues formulated by the defendant counter claimant including the preliminary issues distilled thus- 1. Whether the claimant was an employee of the defendant. 2. If the answer to issue (a) is in the affirmative, whether the claimant is entitled to any terminal benefits(s) or any benefit under the purported staff handbook. PRELIMINARY ISSUES. I will deal with the preliminary issues first before addressing the above two main issues distilled. I also need to point out that the defendant's reply to the claimant's written address is majorly a repetition of the arguments already raised and canvassed by the defendant in its final written address. A reply on points of law shall be strictly so and should not be seen as a second chance to have a bite at the apple. JURISDICTION Now, on the jurisdiction of this Court as regards the position of the claimant, i.e. Managing Director of the defendant. It is the contention of the learned defence counsel that this Court lacks the adjudicatory power over disputes bordering on and/or cases relating to Companies and Allied Matters Act. He posited that such cases are under the jurisdiction of the Federal High Court. He cited in support Section 251(1)(e) of the 1999 Constitution as amended and the case of BUREAU OF PUBLIC ENTERPRISES V REINSURANCE ACQUISITION GROUP LTD & ORS [2008] LPELR – 8560 (CA) and submitted that in the instant case, the claimants claim that he was a Managing Director of the defendant and retired as one and his terminal benefits as such and his claims fall under directorship under section 33 of the Companies and Allied Matters Act (CAMA). Also it is counsel’s further submission that the claimant failed to satisfy a condition precedent to the exercise of the jurisdiction of this Court as the claimant being a shareholder of the defendant company ought to serve pre- action notice on the defendant company informing it of this suit. In response to the preliminary issues raised by defence counsel, claimant's counsel submitted that the fact that claimant has shares in the defendant’s Company does not give the Federal High Court the jurisdiction to entertain the matter because the claimant claim is basically his retirement/terminal benefits. He cited the case of OSISANYA V AFRIBANK PLC [2007] 4 MJSC 128 @140-141. He stated thus that a pre-action notice is not a sine qua non to the commencement of the claimant’s action in this Court. Issues of jurisdiction are paramount to adjudication and it is the pivot on which the case rests. Jurisdiction is so paramount that any action taken by a Court without same acts in vain. See these cases AKEGBEJO V ATAGA [1998] 1 NWLR (PT.534), P 459 @ 461; MADUKOLU V NKEMDILIM [1962] 2 SCNLR, 341; SENATE PRESIDENT V NZERIBE[2004] 9 NWLR (PT. 878) @ P 251-257. It no longer admits of any argument in our adjectival law that in determining whether or not a Court has the jurisdiction or the legal power to entertain a suit, it is to the claim and statement of facts of the claimant that a resort must be had. See these case law authorities; FIRST BANK OF NIG. PLC V ABRAHAM[2008] 18 NWLR (PT. 1118), 172. INAKOJU V ADELEKE [2007] 4 NWLR (PT 1025) P 423. A reading of the claims endorsed on the complaint filed by the claimant, the statement of facts all revealed that the claims of the claimant are for his final terminal benefit and interest thereon. There is no dispute about the status of the claimant or his claims as endorsed in his compliant and statement of facts above. The only dispute in this case is whether or not the claims of the claimant fall under section 254(C) (1) of the 1999 Constitution as amended(i.e. third alteration) and whether the word 'Notwithstanding' used in Section 254(C)(1) excludes the jurisdiction of all Courts on matters that relate to or connected with labour, employment, trade union, industrial relations and matters arising from work place, the conditions of service, including health, safety, welfare of labour, employee, worker, wages, salaries, gratuities etc. The provisions of Section 254(C)(1) is hereunder reproduced for purposes of clarity; ''254(C)(1). Notwithstanding the provision of Section 251, 257, 272 and anything Contained in this Constitution and in addition to such other jurisdiction as may be Conferred upon it by an Act of the National Assembly, the National Industrial Court Shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- (a) relating to or connected with any labour, employment, trade union, industrial relations and matters arising from workplace, the condition of service, including Health, Safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith. (k) Relating to or connected with disputes arising from payment or non payment of salaries, wages, pensions, gratuities, allowances, benefit and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;'' The word "NOTWITHSTANDING" has been defined by the Blacks' Law Dictionary 9th Edition page 1168 to mean Despite; in spite of; while according to the Thesaurus "Notwithstanding" is defined as but, despite, for all that, howbeit, in spite of, nevertheless, regardless of; The word "Notwithstanding" has been held in the case law authority of ADEBAYO & ORS V PDP & ORS [2013] LPELR 20342; wherein the apex Court adopted the interpretation ascribe to same in the case of PETER OBI V INEC [2007] ALL FWLR (Pt.378) 1116 at 1166; as excluding any impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil itself. 'Notwithstanding' also means despite any other thing and thus means notwithstanding the powers earlier conferred on the Federal High Court under Section 251, the NICN shall have exclusive original jurisdiction over the above enumerated causes and matters to the exclusion of all Courts in this clime. The Constitution chose the NICN as the only adjudicator on the items enumerated in section 254(C)(1) of the 3rd alteration, it also has jurisdiction over matters enumerated under Section 251 of the Constitution as it relates to employment, suspension, salaries and emoluments of a Director or Managing Director. The mere fact that the conduct complained of in the Statement of claim (statement of fact) is attributable to matters relating to CAMA, then the Federal High Court will of necessity assume jurisdiction, I discountenance with this argument as put up by the defence. The position of the Law is admirably captured by Section 254(C)(1). See also: ADETONA & ORS V IGELE GENERAL ENTERPRISES LTD[2011]LPELR 159S.C. The law is trite that where words employed in a statute are plain and unambiguous, the rule of interpretation of statutes enjoins courts to give such words their natural literal and ordinary meaning. See OUR LINE LTD V S.C.C NIG LTD [2009] 17 NWLR (PT. 1170) 382. It is also the law that statute should be construed as a whole and should be given an interpretation consistent with the object and general context of the entire statute. See Bakare v. N.R.C. (2007) ALL FWLR, 1579 at 1599, paras G - H, (2007)7. The legislature would have expressly excluded the jurisdiction of this Court over matters under Section 251 of the Constitution as it relates to employment with statutory flavour, if that was their intention was when the third alteration was enacted. It is obvious from the reliefs endorsed on the General Form of complaint and the Statement of Facts that the grouse of the claimant is his claim for terminal benefits/gratuity. This is a matter contemplated by the provision of Section 254(C)(1), hence it is the intendment of the legislature that despite the provisions of sections 251, 257 and 272 of the Constitution and anything contained in this Constitution...'' the NICN shall exercise jurisdiction over matters as enumerated under Section 254(C)(1). It should also be stated clearly here that all the cases cited by the learned defence counsel are all cases that precede the third alteration, it is in my respected view that the decisions in those cases would have been different if it was decided after the coming into effect of the third alteration. It is premised on all that I have stated supra, that I find and hold that this Court by virtue of Section 254C(1)(k) of the 1999 Constitution as amended [also known as the third alteration Act] has exclusive jurisdiction to entertain matters relating to or connected with dispute arising from gratuities, allowance, benefit and any other entitlement of any employee, which in this case includes the claimant. On whether or not the claimant should give a pre action notice before instituting this suit. It is plain on record that the claimant's claim which is paramount to the exercise of the jurisdiction of this Court, has no claim on shares. Meaning that the claims of the claimant does not include his share holding in the defendant's company and thus agrees with the claimant that giving a pre trial notice is not a sine qua non to the institution of this suit. As the apex Court has held severally that share ownership of an employee in company for which he works has nothing to do with the terms of his employment under that same company. it is in the light of this that I also find that the issue of pre trial notice is a requirement for an action instituted by a shareholder as regards his share holding, and not applicable in this instance case as the claimant's claim excludes shares, but his terminal benefit. I so find and hold. Finally, as regards abuse of the process of this Court, it is the submission of the defendant that the claimant having filed a suit in the Federal High Court and the institution of this suit running simultaneously with the former, is an abuse of Court process. I agree with the learned claimant's counsel argument that the defendant did not plead this issue anywhere in its pleading neither did it give any evidence in that respect, and it is a well and long settled principle of law that non pleaded facts go to no issue. In any case the defence failed or refused to give particulars of the case in the Federal High Court, i.e. the suit no, name of parties, the claims in that case, to this Court this sort of contention is baseless, frivolous and permit me to use this words) ''Pool betting''/ ''try your luck'' ''Forum shopping'' type of arguments which has no legal basis and thus discountenanced. I so hold. MINUTES OF 13TH SEPTEMBER 2006. The learned defence counsel posited that the claimant purportedly gave it a notice to produce the original of the minutes of meeting of the defendant of 13th September, 2006 and that the defendant in turn produced and tendered its original minutes book in Court, containing the minutes of meeting of the 13th September, 2006, that inspite of this the claimant still tendered the loose sheets photocopy purported minutes of that day. The defence went on to posit that once the defendant or the person in possession of the document for which notice to produce was given brings the document to Court, that notice has lapsed. Cited in support is Section 89(a) of the Evidence Act 2011. Also in support was the case of AINOKO V. YUNUSA & ORS [2008] LPELR. 3663, Counsel quoted Adekeye JCA as she then was; for saying that the main purpose of giving a notice to produce is to enable the person serving the notice adduce secondary evidence of the document in question. To the defence, when the original is produced in Court, the party issuing the notice to produce can no longer tender the photocopy of same. Learned defence counsel urged the Court to hold that the defendant original minutes of 13th September, 2006 is admissible and there is no need for the copy tendered by the claimant. The Learned claimant's counsel in his submission placed reliance on his submissions on all documents objected to by the defendant during trial, including the minute and continued that both parties have argued their respective position on this issues at the trial, and were only urged by the Court to address it as to weight in their final written addresses. Let me state from the onset that it is correct that the defendant objected to the admissibility or otherwise of the minutes of meeting of 13th September, 2006, including other documents. The claimant argued and made submissions in support of the tendering and admissibility of same and the Court did admit the documents, but ordered parties to address it as to weight in their final written address. It is also on record that the claimant filed and served a notice to produce original copy of certain documents on 6th November, 2013, one of which is the minutes of meeting of 13th September, 2006 ( hereafter called the Minute), instead of producing original copy of the minute, the defendant however, deposed to an affidavit on 4th April, 2014 denying the existence of the minute of 13th September 2006. At the trial of this case on 20th May 2014, the claimant tendered the photocopy having first given notice to the defendant to produce the original, but failed to so produce. It was admitted in evidence and marked as exhibit CU9 whilst on 21st of May, 2014, the defendant produced a hard copy higher education book, it called its minutes book. The defendant showed the minute to CW, who stated that the annexure to the Minute has been removed by the defendant and thus denied it. The Court admitted it and marked it as exhibit CU21, the Court then urged parties to address it as to weight to attach to same. I carefully considered first the minute tendered by the claimant and equally compared it with the one later tendered through CW by the defendant. i.e. exhibit CU 9 and CU 21 respectively. Exhibit CU9 tendered by the claimant is a photocopy consisting of 10 pages, a board paper and appendix (i) and (ii); whilst exhibit CU 21 tendered by the defendant is 10 pages, without any board paper or appendix (i) and (ii). The defendant tendered what it called a minute book, which according to the defendant consists of all minutes of meetings of the defendant. Would it be right to say as argued by the defendant that exhibit CU9 is not the minute of the board of Directors' of the defendant and that same has extraneous documents which makes it inadmissible. Now, the Black's Law Dictionary 9th Edition page 1089, defines, minutes of an organization to include a record of all official actions taken, the presiding officer, the presence of a quorum and information showing that the meeting was duly called and thus legal. The other contents of the minutes will depend upon the degree of detail desired.... The minutes should be an official record of actions taken by the organization. While ''minute book'' is defined to mean a record of the subject discussed and actions taken at a corporate directors' or shareholders' meeting''. The apex Court in WAHAB AIGBOTOSHO SIJUOLA OLANREWAJU V. THE GOV., OYO STATE & 6 ORS. [1992] 9 NWLR (PT. 265) 335 AT 366 where it was decided that oral evidence of what transpired in a meeting could be given in evidence even though there was a recorded minutes of the meeting. The decision of the Court in Olanrewaju's case was followed in EZEMBA V. IBENEME[2004] 14 NWLR( PT 894) AT PG. 651-652,660. By the decision of apex Court in these cases coupled with the meaning as ascribe to it in the Black's law dictionary, 9th edition, a minute of meeting basically means record of all official actions taken, and issues discussed in a meeting. The apex Court went ahead to hold in IBENEME'S CASE that oral evidence of what transpired in a meeting could be given in evidence even though the minute of meeting is tendered. In the instance case, both the claimant and the defendant tendered the minute, however, the defendant's contention is that the minute tendered by the claimant is unknown to it in view of the annexure. Now, placing reliance on both the definition of a minute given by the Black's Law Dictionary and the case law authorities cited above, the evidence of CW, i.e. the claimant in this case, who was present at the meeting corroborates the information and actions taken as recorded in the minute including the annexure which gives credence to the actions taken as contained in pages 1-10 of the minute. The Court finds the attitude of the defendant suspicious in view of the fact that defendant denied the existence of the minute in an affidavit it filed in response to a notice to produce the minute of meeting in question, and later appeared with a minute of meeting in its minutes book, shows that the defendant have something to hide. It equally implies that the document, i.e the minute is not beneficial to them , hence, the defendant lied on oath to the Court which is in law perjury. In fact my worry becomes more heightened when on a closer look at the minutes book, which allegedly contained the minute looks new and does not look like a minute book kept by the company since 2006 or before then. It is consequent upon all the above that I find that exhibit CU9 having been tendered by the claimant who had already given notice to produce to the defendant to produce the original copy but failed to so do, thereby leaving him with no other option than to tender the photocopy in his possession as one of the persons in attendance at the meeting of that day, by virtue of Section 89(a ) of the Evidence Act 2011, is admissible and thus suffices as the evidence of what transpired at the meeting of 13/9/06. Accordingly, I hold that exhibit CU9 was not wrongly admitted and thus forms part of the record of this Court. I hereby set aside the minute later tendered by the defendant and thus discountenanced with. I so hold. CLAIMANT'S LETTER OF EMPLOYMENT/ FINANCIAL STATEMENT 2011. It is the defendant's contention that the claimant's letter of employment dated 20th September, 2006 is a fabrication and an afterthought. That it was issued by himself to himself for the purposes of this suit. According to the learned defence counsel, claimant was inconsistence with his testimony as regards his appointment by the defendant. That exhibit CU11 is to the effect that the claimant resigned his employment in Afribank via a letter dated 24/11/06, that it is untrue to assume that the claimant resigned as a pre condition. The claimant on his part adopted his argument on same during trial. Both parties did infact argued for and against the admissibility or otherwise of these documents and the Court urged them to address it as to weight. Exhibit CU11, is a letter dated 20th September,2006, titled ''RE: APPOINTMENT MANAGING DIRECTOR/CEO. On gleaning through the letter it reveals that it is a letter written subsequent to his letter of appointment and not the claimant's letter of appointment itself. It represents claimant's remuneration package. I have compared the signature of the issuer of this letter with other documents on record signed by the same person i.e. OSA OSUNDE, they appear to me to be one and the same. Exhibit CU11 does not on appearance looks as if it was prepared for the purposes of this case. Consequently, the defendant's objection is discountenance and exhibit CU11,thus forms part of the record of this Court. I have also read exhibit CU12, which is the Financial statement of the defendant for year 2011, it contains detail information as the name implies a statement of affairs of the finances of the company. That in the humble view of the Court can and should contain money set aside for the purposes of paying terminal benefits of the employee of the defendant as it did. This is evinced at page 18 of the defendant's financial statement exhibit CU12, it includes property and equipment of the defendant, earnings and dividends. Defendant's objection to same is hereby discountenanced. Exhibit CU12, forms part of the record of this Court. I so hold. STAFF HANDBOOK. As regards the defendant's employees' handbook, both parties arguments on same at trial is adopted. At the risk of repetition, the defendant's contention is that the handbook i.e. exhibit CU5 was fabricated and prepared by the claimant without the approval of the defendant's board of directors and thus amounts to claimant's making agreement for himself. Employees' handbook contains terms and conditions of service of employees. The claimant stated in evidence that the handbook was approved by the defendant's board of directors at the meeting of 13/9/06 and partly approved by management and that the compilation of same is a management function. On a closer look at exhibit CU9, i.e. the minute of meeting of 13/9/06 made reference to staff remuneration package and benefits at paragraphs 8.01 and 8.02 and appendix (i) and (ii) all evince that the content of the handbook are issues already discussed and approved by the board of directors of the defendant. The defendant's company secretary, i.e DW1 Mr. Adetayo Ogunbanjo admitted under cross examination that the defendant's board approved remuneration and certain structure of the defendant at its meeting of 13/9/06. DW1 also admitted that 13 months salary paid to defendant's staff was approved by the board as bonus, which he equally agreed to be at paragraph 4.5 of the staff handbook. I agree with the claimant who was the Managing Director of the defendant at the time the handbook was compiled, that it is a management function to produce a handbook based on an approved terms by the board of directors. It is also on record that the claimant's appointment letter referred to other conditions of service. The Court of Appeal in E.C.W.A V. DELE [2004] 10 FWLR (PT. 230) 297, held that where the conditions of service applicable at the time of appointment had in the meantime been amended or replaced, the relevant condition of service is the one that is applicable at the time of termination of appointment. To hold that it is the one applicable at the time of appointment will mean that if the amended one, or the new one introduces benefits such as improved conditions service, which ought to be the case. CW stated under cross examination that exhibit CU5 was reprinted and CU5 is the reprinted copy after the approval of the content, which is the terms and conditions approved by the board of directors. The action of the MD/CEO which was approved by the board of directors and who also gave him power to so act, is valid and cannot at this stage be denied by the defendant on whose approval he so acted. The Court base on all the above stated facts believe the claimant and thus attaches probative value to the defendant's staff handbook. I so hold. As regards the internal mail dated 10th February, 2012 i.e exhibit CU18 and not exhibit CU19 as submitted by the defendant. To the defence counsel, internal mails are meant for employees of the defendant and that the date on the internal mail which is 10th February, 2012, a date when the claimant ought to have left the services of the defendant was an abnormality. I have gone through exhibit CU18 vis a vis exhibit CU3 , which is the claimant's letter of notice of voluntary retirement from the service of the defendant, it reveals that the claimant gave three months notice of his retirement to the defendant effective from 9th November, 2011, which means the claimant was effectively retired from the defendant's employment on the 8th of February, 2011. As rightly argued by the defence counsel, internal mails are correspondences within the company from management to staff and not to an ex staff/employee. However, the law is settled that relevancy is a precursor to admissibility, the document in question was pleaded, front loaded and relevant to the facts in issue, the source of the document is not in question, the issuer is one Agbogunleri, Head of Account, who the defendant did not deny as its Head of Account. Exhibit CU18 emanates from a proper source as it relates to final entitlements of the claimant and also relevant to the facts in issue which is a claim for terminal benefit. The author of the mail who was a member of staff of the defendant at the time claimant instituted this action on 26th June, 2013 was not called as a witness by the defendant to corroborate/substantiate the defendant's claim. In effect the document in issue has fulfilled all the rules of admissibility and should be admissible in evidence. It is germane to state at this point that this Court is both a Court of Law and Equity and by Section 12 (2) (b) of the National Industrial Court Act 2006, enjoins this Court in the interest of justice to depart from the strict adherence of the Evidence Act, It is thus in the overall interest of justice that I exercise my discretion in this regard and attach evidential value to exhibit CU3, i.e the internal mail conveying the final terminal benefits of the claimant to him. I so find and hold. As regards the contradictions in the claimant's testimony, it is the defendant's grouse that the claimant's testimony is full of contradictions and should thus be discountenanced. I have taken time to go through the evidence of the claimant before this Court and the evidence he gave in a sister case as a subpoenaed witness, including his evidence under cross examination, it is the Court's finding that there are no material contradictions in the evidence of the claimant that is so grave to warrant setting aside his evidence on record, or differently put the alleged contradictions are not so material to the extent that they cast serious doubts on the claimant's case as presented. I so hold. Now to the main issues framed; on issue one which is whether or not the claimant was an employee of the defendant. It is the defence position on this issue that the claimant has the onerous task of proving that he was an employee of the defendant as well as his contract of service entitling him to terminal benefit. To the defendant, the claimant in proving this tendered his letter of employment dated 20th February, 2006. Learned counsel went on to argue that the defendant pleaded that the claimant was seconded to the defendant as its Managing Director. It is important to state here that the substratum of claims of the claimant is not for wrongful termination of employment, but for terminal benefits and all that the claimant need to prove is how he became entitle to such. Also paramount is his contract of service, which regulates his employment. See NIGERIAN GAS CO. LTD V. DUDUSOLA [2005] 18 NWLR (PT. 957) 292. Every contract of employment shall contain the terms and condition that will regulate the employment relationship such as terms on determination, notice, wages, benefits are usually contained in the expressed contract of service or implied into it by common law and custom. See LONGE V. FIRST BANK OF NIG. PLC [2010] 6 NWLR (PT. 1189).1 S.C. See also SHENA SECURITY CO. LTD V. AFROPAK (NIG) LTD [2008] 18 NWLR (PT. 1118) 77, where the apex Court distinguished between contract of service and contract for service and held that where there is payment of wages or salaries as it is in this case, it is a contract of service. The claimant in proving that he was an employee under a contract of service with the defendant and Managing director/CEO of the defendant tendered exhibit CU11, which is his letter of appointment showing his remuneration as the MD of the defendant, this letter was signed by one Osa Osunde, chairman of the board of directors of the defendant dated the 20th of September, 2006. I have carefully compared the signature of Osa Osunde in this letter vis a vis his own letter of resignation dated 1st June, 2008, i.e. exhibit AO2 including the Financial Statement of Afribank Registars dated 31st March, 2006 and they all appear to be one and the same signature in character and in form. The claim of the defendant that those two letters are not with them and also challenging the veracity of the signature of the said Osa Osunde was not substantiated, mere stating that the signature is not the same without more cannot be held to be a prove of its claim of veracity or otherwise of those documents signed by its chairman. The defendant had the opportunity to call the said Osa Osunde, its Chairman to verify his signature but failed/refused to so do and that in the respected view of the Court is fatal to its case. There is nothing on record to show that Osa Osunde is unreachable or deceased and as a Chairman of the defendant should be readily available to come and verify his signature, failing which the objection of the defendant as regards the veracity of the signature of the Chairman of the defendant who signed exhibits CU4 and CU11 respectively and thus discountenanced. It is the claimant's case that he was employed initially by Afribank in 1992 vide a letter dated 28/9/92 as a Manager and rose through the ranks until he resigned his appointment and was appointed as MD/CEO of the defendant. Also tendered in support of his claim is a letter dated 15/5/2008, titled re review of salary structure, signed by the same Osa Osunde, Chairman of the board, specifically stating the annual remuneration of the claimant as N35,183,300.00 and details of same as evinced on exhibit CU4. Exhibit CU 8, i.e the Particulars of directors filed by the defendant at CAC, shows the extract from the minutes of board of directors dated 13/1/05, where the board appointed the claimant as MD of the defendant effective from 13/1/05. `DW1 admitted under cross examination that the claimant was the MD/CEO of the defendant and equally agreed that exhibit CU11, is the details of the claimant's remuneration but he stated that he does not have a copy. DW1 equally agreed that the claimant was appointed as MD/CEO vide exhibit CU8. All these confirm the claimant's appointment by the defendant as its employee ditto his remuneration. The claimant's position as the MD/CEO of the defendant was not disputed by any of its witnesses. The law is that he who asserts must prove, the claimant in the calm and considered view of the Court based on the evidence on record has proven his employment relationship with the defendant. The onus of disproving this shifts on the defendant who is alleging that he was not its employee, to so prove. In trying to proof that the claimant was not its employee, the defence witness averred that the claimant was seconded to its company from Afribank, meanwhile DW1 averred and admitted that Afribank later transfigured and became Mainstreet bank and that the defendant is a subsidiary of Mainstreet bank. Assuming that DW is right, on the authority of ONUMALOBI V.NNPC [2004]1 N.L.L.R. (PT.2) 304 @ 325, where the Court of Appeal held thus- ''Privity of contract will be held to exist between an employee and the subsidiary company of his employer to which he has been transferred where the subsidiary is totally integrated into and under the control of the parent company and the subsidiary company qualifies to be described as ''employer'' under S. 91(1) of the Labour Act. Cap. 198 LFN 1990. Howbeit, it is evident on record that the defendant issued to the claimant when it appointed him as MD, a letter specifying his salaries and other allowances as stated supra, The relevant documents tendered by the claimant in support of this are exhibits CU8, CU11, CU4, CU5, CU9 and CU 12 i.e. the particulars of directors and changes thereon filed by the defendant showing its appointment of the claimant as the MD of the defendant effective from 13th January, 2005. letter sequel to his appointment as MD specifying his remuneration package and as it puts it ''staff benefit'' and the Review of the salary structure of the claimant by the chairman of the board dated 15/5/08, the defendant financial year statement 2011, the defendant's staff handbook, the minutes of the board of 13/9/06. All these go to show that the claimant was an employee of the defendant whom the defendant recognised as such by making provision for his remuneration and benefits. It is consequent on all these that I find and hold that the claimant was an employee of the defendant. I so find and hold. As regards the second issue, which is whether or not the claimant is entitled to terminal benefit. The defendant reiterated its arguments as it relates to the claimant's letter of appointment dated 20th September 2006, the Handbook and the minutes of 13/9/06. To the defendant there is no specific provision for the claimant's terminal benefit in the 2011 financial statement, and rather what is there is the accruals of the terminal benefits. He submitted that Articles 37 of the defendant’s Articles of Association clearly provides for the means by which a Director of the defendant company may vacate office and it was not provided that a Director shall vacate his office by retirement, voluntary or otherwise. He cited in support section 33 and 41 of the Companies and Allied Matter Act and the case of ENGINEERING SAMUEL DIDEN YALAJU AMAYE V ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD & ORS [1990] LPELR 3511 (SC); [1990] NWLR (PT.145) 422. He further submitted that the action of the claimant by retiring his employment, instead of either resigning or vacating same as one of the ways provided for by the Articles of Association of the defendant amounts to repudiation of contract between the claimant and the defendant. That the claimant having repudiated the contract and the defendant having accepted the repudiation cannot be compelled to discharge the obligation under the contract neither can the claimant sue on a contract that was repudiated by him. He cited the case of NEPA V ANGO (2001)LPELR -5933 (CA); [2001] 15 NWLR (PT 737) 627. The claimant on his part submitted that the defendant at its meeting of 13/9/06 approved certain terms of employment for its staff and gave management under his leadership of the claimant power to determine other benefits and the same was approved by the defendant's chairman's signature on the minute. It is the claimant further position that where the chairman and the members acted ultra vires the defendant's company, the defendant is bound thereby. He went on to state that Article 44 of the defendant's company gives the board the power to appoint an MD on such terms and with such powers as they may think fit and Article 32 gave the defendant board the power to delegate any of its authorities and discretions vested in the directors. To the claimant in consonance with clause 3.14 of exhibit CU5, which prescribes 60 years as the age of retirement and in line with that he gave a notice of retirement vide exhibit CU3 and in line with exhibit CU11and same was accepted by the defendant vide its resolution dated 14/11/2012, i.e exhibit CU7 which was filed by the defendant at the CAC. The law is of common that whether an employee is eligible for gratuity or pension can be decided only by reference to the conditions of service. See N.E.P.A. V ADEYEMI [2007] 3 NWLR (PT. 1021), 31. Adekeye JCA (As she then was) decided in JULIUS BERGER (NIG.) PLC. V. NWAGWU [2006] 12 NWLR (PT.995) PG.518; that "terminal benefit is readily and easily assessed as it is calculable from the Agreement between parties on Terms and conditions of employment, based on specific statute or common laws rules." It is a well known and established practice that only employees can elect to voluntarily retire at either age 45 or 60. See the case law authority of EJITAGHA V. P.H.M.B. [1995] 2 NWLR (PT. 376) 189. C.A. The relevant claimant's conditions of service are exhibits CU5, CU11 and CU4 which are the defendant's staff handbook, appointment as MD and review of salary letters dated 20/9/06, and 15/5/08. By clause 30 of the defendant's Articles of Association, the Directors may grant retirement pensions, annuities, or other gratuities or allowances to any person in respect of services rendered to the company, whether as a MD or any other officer or employee, notwithstanding that he may be or may have been a director of the company. Whilst article 44 empowers the Board of Directors to appoint a MD/CEO of the company. It is in the light of all the above mentioned documents on record that the Court finds that the claimant is entitled to his terminal benefit having rendered services to the defendant and as provided for by his terms of service. I so hold. Now, what are the claimant's claims? He is claiming the sum of N100,916,500 and pre judgment interest of 22% per annum on the said amount. I have decided supra that the claimant is entitle to his terminal benefit as a retired MD/CEO of the defendant. The claimant tendered exhibit CU18, i.e. the internal mail dated 10th February, 2012, from the Head of accounts to the MD who is the claimant in this case, titled '' CALCULATION OF MD/CEO'S FINAL ENTITLEMENTS''. I adopt my decision on this exhibit earlier in this judgment and further state that the veracity of the document is not in issue. It is also from a proper custody, which in this instance is the Head of Accounts to the MD as his final terminal benefits. I disagree with the learned defence counsel's submission that its only employees whose services are no longer required that are entitled to terminal benefit and state the correct position of the law which is that a terminal benefit is a lump sum of money awarded in contract at the expiration of employment to an employee. Contract of employment may be determined by either party to the contract, the employer might determine it, the employee may equally determine same on reaching a mandatory age of retirement, which is the situation in this case. It is on record as evinced above in this judgment that the claimant retired from the employ of the defendant as a MD/CEO. He is thus entitled to be paid his terminal benefits as provided for and conveyed to him vide exhibit CU18. The format for which it was conveyed does not impugned on the authenticity of the document. The message it conveyed is clear as crystal. What more, Res ipsa loquitur, the document speaks for itself. The total amount is N100,916,500.00 less claimant's outstanding loan of N40,558.084.14 and car ownership scheme of N2,200,000.00 totalling N42,758,084.14, leaving a balance of N58,158,415.86 as entitlement due to the claimant. It thus consequent upon this that I find and hold that the claimant is entitle to be paid the sum of N58,158,415.86 as his terminal benefit. As regards payment of pre judgment interest of 22% on the above, See KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LTD [2012] 27N.L.L.R (PT.78) 374, NIC, It is a basic principle of law that for a claim for pre judgment interest to succeed, it must arise from the mutual agreement (contract) between the parties prior to the litigation or dispute that led to the litigation. It is in that respect that pre judgment interest would not be proper to award in this instance as it relates to terminal benefit. See KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LTD [2012] 27N.L.L.R (PT.78) 374, NIC, I thus hold that claimant's claim for pre judgment interest on his terminal benefit fail and thus discountenanced. I shall now, proceed to the counter claim of the claimant in the sum of N40,558,084.14 as claimant outstanding mortgage loan and interest thereon, the sum of N16,979,166.71 as the net book value of Prado car and Range Rover car which the claimant allegedly wrongfully took from the defendant. I have carefully gleaned through the evidence of both parties and documents tendered by both parties, it is the claimant's submission that by exhibits CU11 and CU5, claimant is entitled to two vehicles jeep, car amortized over 4 years with right of purchase at net book value or 10% of cost whichever is lower. He referred the Court also to clause 3.15 B of exhibit CU5, where it was stated that staff with company car(s) under car ownership scheme shall be allowed ownership of the car at a book value of 10% of the original cost after 4 years. Claimant went on to state that exhibit CU17 and CU18 respectively, which evinced his contribution to the purchase of the 2nd jeep, and co financed with the hope that the cars will be his upon retirement. It is the claimant argument that the defendant's head of Accounts has calculated his indebtedness to the company and having deducted same from his terminal benefit, he is not liable to pay for the alleged sum. By exhibit CU18, the defendant's staff, agent and Head of Accounts, one S.A. Agbolgunleri stated that the claimant's entitlement less his indebtedness of outstanding loan and car loan in the sum of N2.200,000.00 is N58,158,415.86, whilst on exhibit AO6 dated 15th July, 2013 prepared during the pendency of this case tendered by defence witness, the same S.A. Agbogunleri turned round and made a summersault by stating thereon that his outstanding indebtedness is N57,537,250.80 and no longer N42,758,084.14, giving the difference of N14,779,166.66. Given that the same S.A. Agbogunleri authored the two letters, the defendant cannot at this stage deny the first letter issued by the same Agbogunleri, it was an act of its staff and agent. The law is long settled that the act of an agent of a disclosed principal is binding on his principal. It is also in the considered view of the Court that exhibit AO6 was prepared purposely by the defendant for this case, It was an afterthought and orchestrated by the defendant to becloud the truth and the cause of justice. It is against the provision of Section 83(3) of the Evidence Act. It is in that regard that I find and hold that the calculation as authored by S.A. Agbogunleri on 10th February, 2012 as claimant's indebtedness to the defendant is the true state of the claimant's account, exhibit AO6 is thus discountenanced. Consequently, the defendant's counterclaims fail and thus dismissed. I so hold. Summarily, it flows from all the above findings that I hold that the claimant's case succeeds, whilst the counterclaim of the defendant fails and thus dismissed. I hereby declare and order thus-- 1. It is declared that the claimant was an employee of the defendant. 2. It is also declared that the claimant as an ex Managing Director of the defendant is entitled to his terminal benefit/gratuity. 3. It is ordered that the defendant shall pay the claimant the sum of N58,158,415.86 as his disengagement/terminal benefit. 4. It is also declared that the claimant is not entitled to a pre judgment interest. 5. It is declared that the defendant's counter claim fails. 6. I award the cost of N100,000 as cost to the claimant. 7. All sum awarded in this judgment shall be paid to the claimant within 30days of this judgment failing which a post judgment interest of 21% shall be paid per annum on the judgment sum. Judgment is accordingly entered. HON. JUSTICE OYEWUMI OYEBIOLA O. JUDGE