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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 18TH MARCH, 2015 Suit No. NICN/ABJ/309/2013 BETWEEN IDIKA KALU UMA CLAIMANT AND 1. KOFANA SECURITIES AND DEFENDANTS INVESTMENT LTD 2. UMANA OKON UMANA REPRESENTATION Ikoro N. A. Ikoro Esq for the Claimant. Olasoji O. Olowolafe Esq with Olajide Owonla Esq for the Defendants. JUDGMENT By a complaint dated and filed 20th November, 2013 where in the claimant claims against defendants as follows:- (1) An order directing the defendant to release the two Toyota brand cars that the plaintiff use his personal and official cars while he was the MD/CEO of Kofana Securities and Investment Limited. (2) An Order of directing the defendants to pay to the plaintiff, full cash value of 5% of the registered shareholding of Kofana Securities and Investments Limited which belong to the plaintiff. (3) An Order of this Court directing that the salary slashed from the Claimant from February, 2009 to the time of his forced resignation contrary to the terms of his employment be refunded to him, which is N17,200.000.00 (4) An order of this Court that the refund of the slashed salary be repaid at the interest of 15% for every month owed. (5) N20 million as Damages for the persecutions, harassment and intimidation the plaintiff received from the defendants. (6) N750,000 being expenses incurred with respect to the EFCC investigation, including expenditures in respect of the Port Harcourt office of the defendant and the sum of N200,000.00 being the legal cost of for engaging the services of a legal practitioner in the course of the EFCC investigation. (7) A declaration that the refusal to release the letter of Acceptance of the Claimants resignation is contrary to labour laws of the Federal Republic of Nigeria and other International Instruments and threatens the economic and family rights of the Claimant. (8) An order of this court mandating the 1st Defendant to issue the Claimant with his Acceptance of Resignation letter. (9) The cost of this suit being N5,000,000.00. The complaint was accompanied by a statement of claim, witness Statement on Oath, list witnesses and list of documents to be relied upon. In reaction to the complaint the defendant entered a conditional appearance dated 17th December, 2013. Thereafter filed his statements of defence and other court processes. The matter went on trial, the claimant testified and tendered exhibit. The defendant called a witness in the person of Mr. Ibrahim Odegbami an Accountant with the Kofana Securities and Investment Ltd. On 9th February, 2015, parties adopted their final written addresses. The Defendant raised and issue for the determination of the court to wit: Whether, considering the facts of the case and the evidences adduced, the claimant has brought any legally, cognizable or enforceable action to be entitled to the reliefs sought in this case. The learned counsel for the defendants subscribed that the law guiding the relationship has not changed in spite of the change of venue. He submitted that there are certain forms of appointment that the law recognizes. These are: 1. Statutory employment and 2. Contractual employment which is also called master/servant relationship. The statutory employment is said to have statutory flavour while the contractual employment of master and servant relationship is based on the contract between the parties. The counsel to the defendant submitted that the claimant has failed to show which of the two categories of employment his employment has. The counsel went further to submit that the claimant made several allegations and assertions which he claimed were made by the virtue of his employment. But that he has failed to bring the terms of his contract of employment to the court for enforcement. The counsel further contended that the supposed contract was between the claimant and the 1st defendant, that even if the 2nd defendant is the alter-ago of the 1st defendant. The question is that will he over rule the legal rule as to the distinct legal personality of the 1st defendant. That the law is that the company is a distinct and cooperate legal personality from its members and Directors. The counsel submitted that the claims of the claimant cannot be established without first knowing the terms of his employment. It is the claimant that has the legal duties of bringing the terms of the contract between him and the 1st defendant for enforcement. One if the orders the claimant sought for is for the release of the Toyota official and private cars that he drove as Managing Director of the 1st defendant. The learned counsel submitted that the court cannot grant this except it could be established that such was part of the contract of the claimant. The position of the claimant is that there is an industry, custom in the finance industry goes away with the official vehicles (this is the position the defendants denied that the claimant was not entitled to vehicles as there was no contract to that effect) that the claimant did not give more than to proffer viva voce evidence in respect of this assertion. That is also a custom that has not been proven before the court. The counsel went on to consider other claims which is for the full value of 5% of the shares of the 1st defendants. That unless the claim was drafted and proven by virtue of his employment the claimant is not entitled to the claim. for the reason that the claimant has not been allotted with the shareholding to the terms of his employment and it therefore becomes ordinary company matter which the court lacks jurisdiction and this falls within the jurisdiction of the Federal High Court. He therefore urged the court to decline jurisdiction over the claims for 5% of the shares of the 1st defendant which has not been established. That the claimant has not proved that he has paid for the shares which he subscribed to? That the position of law is that a company is different from the owners and shareholders. On the nest relief of the claimant which borders on the repayment of his slashed salaries when he was in the employment of the 1st defendant. The counsel submitted that the claimant was part of the Board that took the decision for the slash in salaries of all the staff of the 1st defendant to this reason he is stopped now to start claiming same after he has failed to complain when the salaries were being deducted from him. That having not shown that he was under any legal disability to refuse the salary slash as at the time it was done. He could have resigned then if he was not in with other members of the Board who alongside with him recommended the slash but he did not. He submitted further submitted that the N17,200,000.00 (seventeen million two hundred thousand Naira) only being claimed as the total slashed salary was not been established by credible evidence before the court but even if it had been proved it had been waived. He urged the court to dismiss the claim. The learned counsel for the defendant further submitted another claim of the claimant which is for the sum of N20,000,000.00 (Twenty million naira only) for the prosecution and intimidation and harassment . On this claim the counsel. Said there is no heed of tort known as prosecution but that the tort of malicious prosecution is a legally cognizable evidence led to this neither pleaded a credible evidence led to establish the ingredients of this tort as to merit claim in this regard. The counsel listed the four ingredients of the heed of tort as stated by Supreme Court in the case of Balogun V Amubikahun (1989) 3 NWLR (Pt. 107) 18 that in respect of harassment and intimidation which are criminal allegations which the claimant must proved and established against the defendant beyond any reasonable doubts. But the shallow and irrelevant evidence adduced in respect of these allegations can never be said to prove the crime against the defendant. That the claimant thankfully resigned his appointment and that if he had been prosecuted, harassed and intimidated he would not only have reported to the police he would have made it a reason for quitting the employment. The Learned counsel also submitted that the claimant also claims N750,000.00 (seven hundred and fifty thousand Naira ) only he allegedly spent in the course of his prosecution by EFCC was a personal thing to the claimant, though he claimed he was prosecuted in his capacity as the M.D of the company. The counsel contended that there is no criminal vicarious liability that a company has its own criminal responsibility. That if the 1st defendant was suspected for a crime, it could have been investigated and if necessary prosecuted. That on the basis the court is urged to dismiss the claim as not only not proved by also worthless and frivolous. The learned counsel argued the two other claims together:- a. A declaration that the refusal to release the letter of acceptance of the claimant resignation as contrary to labour laws of the federal republic of Nigeria and other International Instruments and threatens the economic and family rights of the claimants. b. An order of this court mandating the 1st defendant to issue the claimant with his acceptance of resignation letter. i. The counsel argued that pertinent to point out that as relief (b) is concluded in consequential upon the grant of the declaration in (a) which is the principal relief. ii. The position of law is that where principal relief is not granted the consequential relief must fail Bello V Emeka (1981) 1SC. 101 that the two reliefs being declaratory must be proved strictly. In that the court cannot grant a declaratory relief as a matter of cause. The counsel submitted that a look on the record that there is no evidence on the record to substantiate the pleading. A declaration that is not supported by credible evidence cannot be granted and should be dismissed in this case. Lastly on the costs of litigation of N5,000,000.00. That where a case fails there cannot be an award of costs to a party whose case fails. He urged the court to dismiss the claimant’s case. The claimant’s counsel on his part submitted and adopted the sole issue formulated by the defendants for the court’s determinations which is whether considering the facts of the case and the evidence adduced the claimant has brought any legally cognizable or enforceable action to be entitled to the reliefs sought in this case. On the claimant’s claim on the two Toyota cars that it was established that the time the claimant was still running errands for the company he was given a Toyota corolla to run around for setting up the company. The claimant submitted that defendant denied there was an agreement by the defendants to sell its depreciated assets to the claimant. The claimant submitted that the defendants believes that any oral commitment that could ever have been made between the 2nd defendant and the claimant which made him to leave his former job would not bind the 1st defendant that the claimant would have to rely on authorities that state to the contrary . The counsel stated further that has not stated in which document he saw the information that there was no agreement to sell depreciated assets. The claimant under cross examination answered that the cars were given to him as a condition to transfer from FCMB Stock broking Firm to the 1st defendant. He stated he had such cars in FCMB and he left FCMB when he was allowed to leave with the cars. The claimant insisted that the release of the cars to him was the condition for his coming over. The claimant also submitted that the two Toyota cars have fully depreciated and the claimant is entitled to them by virtue of the agreement before he joined the 1st defendant. He referred to Assets Register as at October 2010 and November 2010 which shows that the Toyota Corolla totally depreciated by 25% which means that in 4 years it becomes of no value. That the Toyota Avensis was bought on the 19th July 2007 and this also means it was almost fully depreciated as at the time the claimant got his letter of suspension on the 6th of July, 2012. That in the light of the argument the court should hold that the two cars in question have fully depreciated. The claimant submitted his claims for 5% shares, which he stated the defendant have raised the issue of jurisdiction. The claimant counsel in contending the stand of the defendant that the claimant has not established a link between the shares and his employment and therefore the matter is within the purview of the Federal high Court is misconceived. counsel wasn’t the court to resolve the shares issue whether the shares was based personally acquired by the claimant or whether it was shares allotted to him as terms of his employment. He said the 5% shares allotted to him by the claimant in paragraph 14 of his testimony is that the 5% subscribed to in the name of the claimant but in trust for the staff of the company as profit sharing incentive. The claimant claimed the shares were allotted on the 19th of March 2007 he referred to in Exhibit PW6 and PW7. That document could not be made in trust for employees who were not in existence. Also that the document being relied upon for the profit sharing was prepared around December2007 (9 months after the 5% was allocated to claimant. The counsel argued that the defendant have decided to deny the claimant that which is shown to belong to the claimant by virtue of Exhibit PW7 that the burden to produce another document to counter or explain Exhibit PW7 is on the defendant. The counsel urged the court to hold that evidence of the claimant is consistent and that he refused to join the defendant’s company until 5% shares was allotted to him. That the claimant under cross examination stated he did not purchase the shares but was given by the 2nd defendant as a bargaining chip to bring him in. On slashed salary , the claimant submitted that in the company’s method of acting outside the book without first passing a resolution orally slashed the claimant’s salary and that of all the staff in January 2009. The claimant submitted that the defendant gave the reason for the slash on salary was as a result of global melt down and taken as an alternative to rationalisation. To the claimant the reason for the slash is not essential what is essential was that a member of staff was paid less than was agreed in the terms of her contract. the counsel for the claimant argued that the contention of the defendant that the claimant was part of the Board who passed resolution to slash salaries as he was not a member of the Board in 2009 is false that the 2nd defendant only resigned as a Director on the 4th of January 2013 which is 4years after the slash. The Claimant contended further that the 2nd defendant was still a shareholder of the company. That the slashing of salaries occurred without a resolution as the defendants failed to produce the document. Counsel quoted Section 167(a) of the Evidence Act and the Supreme Court decision of Mosee & ors V. Mbamalu & Ors (2006) 15 NWLR pt 1003 at 466. Still on the slashing of salaries the counsel for the claimant submitted that the doctrine of waiver relied on by the defendant does not favour their case. Firstly the waiver must be pleaded. That there was no pleading with regard to waiver or estoppel for continuing to receive the salary without resigning. He urged the court to discountenance the arguments on waiver resulting from not resigning his employment that this was not pleaded. That the 2nd defendant single handedly decided to but the salaries of all staff. Still on the slashing of salaries the counsel contended that exhibit PW13 which is the salary details of the 1st defendant shows that in July 2008 the claimant earned N850,000.00 (eight hundred and fifty thousand Naira) and he earned the same salary in August 2003. That the salaries of January and February were merged to show N852, 500.00 (Eight hundred and fifty two thousand five hundred Naira). That the Internal Memo from Human Resources subject salary showed his salary to be N504,173.33 (Five hundred and four thousand one hundred and seventy three Naira thirty three kobo) only . That in April it was N397,909.15) (Three hundred and ninety seven thousand nine hundred and nine naira fifteen kobo)only. Counsel urged the court to hold that the time he resigned his appointment the total amount is N173,200.000.00 ( Seventeen million two hundred thousand Naira) only. Finally the counsel for the claimant submitted on the claimant’s claim for N20,000,000.00(twenty million Naira) only as damages for persecutions, harassment, and intimidation is a declaration that refusal to release the letter of acceptance of employment is contrary to labour laws of this country and other international instruments and threatens the economic and family right of the claimant. In his argument the learned counsel submitted that the claimant was fighting for the increment of other members of staff. He said the claimant held certain beliefs of how things should be done about confirmation of staff, bonus, and vacations has none has been done in more than two years of the company’s operations. This led the claimant to be antagonized. He referred to Exhibit PW3 letter of indefinite suspension, that this instructive on the main reason why the claimant was suspended. To the counsel the indefinite suspension of the claimant, the Managing Director , the Chief Executive Officer who runs the company for not. The counsel said indefinite suspension was without warning he was ambushed in a meeting he thought he was coming to give a report no query was issued in relation to the allegation against him Exhibits PW3. The letter of suspension asked him to hand over all the assets of the 1st defendant and all documents in his possession with a full handing over not. To the counsel the employment was as good as over. The claimant stopped getting his allowances and salaries. Yet he was expected to be at work every Monday. To the counsel the letter is most humiliating. The claimant also alleged that since August 2012 till now (more than two years) the claimant has not received his pensions. That the defendant also refused or ignore to reply request for his June 2012 pay slip and refuse to issue the Letter of Acceptance of his resignation letter. For the reasons given above, the claimant has sought this type of damages known as exemplary damages, whose aim is to punish cruelty, oppressiveness and disregard for law. He cited the case of G.K.F.I. (Nig.) Ltd., V. NITEL PLC (2009) 13 NWLR (pg 377) paragraph f. Counsel urged the court to hold that the actions of the defendant as persecution, harassment and intimidation and grant the cost of N20,000,000.00 as exemplary damages against the defendant, for its oppressive, cruel and malicious acts against the claimant. On the demand for N750,000 (seven hundred and fifty thousand) and N200,000.00 (Two hundred thousand for EFCC ordeal, The counsel said his ordeal with EFCC was not denied by the defendant but only argued that investigation was personal. He said that they have argued that the investigation was by virtue of the office of the claimant. That he paid a legal fee of N200,000.00 (Two hundred thousand, Naira) only. He urged the court to grant the relief. On cost of N5,000,00.00 (five million Naira) only for this cost the counsel relied on Order 24 R1&5 of NICR 2007) which provides that: In every suit the costs of the whole suit, and of each particular proceeding therein and the costs of every proceeding in the court. Shall be at the discretion of the court as regards the person by whom they are pride. In fixing the amount of costs, the principle to be observed is that the successful party is to be indemnified for the expenses to which the party has been necessarily put in the proceedings. He urged the court to grant the cost of litigation as the claimant has expended money to prosecute this case, and that the suit could have been avoided if the defendants have settled his grievances. On point of law, the learned counsel for the defendant replied on what he referred to as relevant points of law. Firstly on incompetence of the Reply filed in total disregard to Order of Court (Argument canvassed in par 2.20 to 2.33 of the plaintiff’s final address. On this the counsel submitted that issue of the filing out of time that was granted by the court is a illegal and unconstitutional step rather than an irregular one and such cannot be waived. That in this case the pleadings closed with the filing of illegal reply and there was no further step in filing of pleadings that the defendant embarked upon which the defence of waiver could be hanged. That since the defendant did not file any further paper in response to the reply. Counsel urged the court to overrule the argument of the claimant and strike out the reply that was illegally and unconstitutionally filed in this case. That the invitation of court under Order 5 rule 3 of NICR to abridge time is made too late in the day. On the application of the claimant to strike out Exhibit DW1 admitted in the course of the proceedings. The learned counsel said that issue has been joined and integrated between parties that parties and even the court is stopped from re-opening or re-litigating it. That the only leeway to the claimant is to file appeal to the Court of Appeal. On the argument of the claimant on the issue of denial and traverse of his claims and arguments as contained paragraph 5.20 -5.35 of his final address. Counsel said denial by simple traverse that the defendant does not admit an allegation is sufficient traverse. That essence of traverse is to cast the burden of proof on the plaintiff. That the cases paraded by the claimant are irrelevant. The counsel also submitted on the claimant’s position on the evidence led at the trial contained in paragraph 5.40- 5.49 of final address. On this the claimant argued that witness PW1 evidence is hearsay as he was testifying of the document he met on the when he assumed duty and that he never produced such document. The defendants submitted that Section 77 of the Evidence Act cannot avail the claimant because the things alluded to are official acts and any subsequent occupant of the office can rely on those official acts. Also that on the documents he made allusions to were not tendered the defendant submitted that defendants have not to produce the document that will aid his case. That this argument also relates to the argument of the claimant that 2nd defendant did not come to deny those assertions. The defendants argued further that in a master and servant relationship between the claimant and the 1st defendant that the claimant did not tender any document of contract between him and the 1st defendant but rather he was wai9ting for the 2nd defendant as DW to come and testify for him or produce evidence in favour of his case. That the fact that the 2nd defendant did not give evidence automatically does not mean that judgment must be given in favor of the plaintiff who has a duty to prove his case on balance of probability. Having considered the pleadings, submissions, authorities and oral evidence given at the trial the issue for the court to determine is whether from the state of pleadings and evidence led in support of same the claimant has discharged the burden of prove placed on him and consequently entitled to the reliefs claimed. According to Section 132 of the evidence Act 2011, the burden of prove in a suit or proceeding lies on the person who would fall if no evidence at all were given in either side. In the case of Akinyele V. Afribank PLC (2003) 7NWLR (pt 955) 504 at 515 where the court held that:- The person who makes allegation in a proceeding is by ordinary rule of pleadings bound to provide evidence to substantiate them as part of his case. The claims of the claimant against the defendant can be gleaned from the complaint are nine in number. The 1st claim of the claimant is for the release of two Toyota cars to him as he was then the MD/CEO of Kofona Securities and Investment Limited. The key issue before the court is whether the claimant has proved his case on this issue. The position of the claimant is that he was invited from the Defendant his former employment at FCMB Capital Market and Stocks Brokers Limited. That the cars were given to him as part of the condition for coming to work for the defendant. In that at his former place of work at FCMB he had official car and the cars he was using then were given to him. That it is a custom in the Financial Industry that the Chief Executive in the Finance INDUSTRY goes with his official vehicles. The defendants submitted in their final address that there was no agreement by the defendants to sell or transfer her depreciated items to the claimant. The key issue before the court is whether the claimant has proved his case to be entitled to the two official cars. It is clear from the facts available to the court that the claimant has not proved credible evidence to support his claim that executives in the finance industry are allowed to go away with their official cars. He claimed he was allowed to go with the vehicles he had when in the employment of FCMB would have thought evidence to this effect would have been produced to the court. Further the assertion is not buttress by citing any rule or instance where Executives were allowed to go away with their official cars. Furthermore, the claimant did not tender his letter of employment or referred to the provisions of condition of service of the defendant that allows him to go away with the two vehicles no matter the state of condition of the two vehicles. The claimant counsel dealt so much on the depreciative aspect of the two vehicles. The state of the conditions of the vehicle is not in issue, what is in issue is whether the claimant is entitled to go with the two official vehicles. Thus the claimant has not been proved to enable the court award the two official cars in his favour There is no evidence before the court that the claimant has any agreement with the defendant that provides the he could go away with the two official vehicles. The claimant’s second claim is for an order of the court directing the defendants to pay to the claimant full cash value of 5% registered shareholding he has in KOFANA Securities and Investment Limited. The claimants has submitted that SEC rules has provided that a Managing Director of a Stock Broking Company must have a substantial shareholding in the company., He referred the court to the resolution of Extra Ordinary Meeting of the shareholders of the 1st Defendant on 19th March, 2007 and the CAC Form 2 and approval of March 2007. The defendants’ position is that the 5% the Claimant alluded to is the 5% subscribed to in the name of the claimant but in trust for the staff of the company as profit sharing incentive. The defendants asked the court not to assume jurisdiction over the claimant’s claim for 5% share of the 1st Defendant which they said has not established that same was holding by virtue of his employment. That this is a matter on Company’s Administration and Management which is within the purview of Federal High Court. They further contended that the Claimant has not shown that he paid for the shares he claimed he subscribed for. They submitted further that if actually he has shares in all he can do is to sell his shares in the company and not (pg. 3b). The claimant tendered Exhibit PW9 the Memorandum and Articles of Association of Kofana Securities and Investment Ltd. On statement of share capital and return allotment of shares from CAC2 the Claimant’s name is found number 5 and the number of ordinary shares allotted to him was 5,000,000 shares. Similarly a look at PW7 shows that at an Extra Ordinary Meeting of shareholders held March 2007 the resolution was taken that the share capital of the company be re –allotted to its shareholders and on this list 5,000,000 was allotted to the claimant. There is no where or and no document tendered to show that the claimant was holding shares in trust for the staff of 1st defendant. So in my view the shares are allotted to the claimant. However what is allocated are shares the claimant can only claim the shares and he cannot ask for money (Pg. 4b) this is because he cannot force the defendants to purchase the shares. Whether the claimant has made payment for the shares allotted for full value of the shares is within the jurisdiction of Federal High Court and not National Industrial Court of Nigeria. On the issue of salary slash and for which the claimant is demanding the sum of N17,200,000.00 (Seventeen Million Two Hundred Thousand Naira) Only the payment of 15% interest for every month owed. To the Defendants the claimants has waived the right to the salaries as he failed to complain when the salary was slashed. They contended that the claimant was not under any disability to refuse the salary slashed and that he has not also established how he arrived at the figure. The claimant contention is that the defendant slashed claimant’s salary without just passing a resolution, since they failed to produce the said resolution which is a public document. That is illegal and contrary to law in page 6.4 of the claimant final address, the claimant narrated how he came to sum of N17,200.000.00 (Seventeen Million Two Hundred Thousand Naira) Only. It is not in dispute that the defendants took a decision to slash staff salaries from the pleadings, submissions, oral evidence, witness statement on Oath, the claimant did not state how he arrived at N17,200,000.00 (Seventeen Million Two Hundred Thousand Naira) Only. The onus is on the claimant who will fail if he fails to produce evidence on how he arrived at the figure. The court will not go into the realm of speculation. The claimant claims for N750,000 and N200,000 spent on EFCC ordeal. It is not in dispute that the claimant had some official dealing with the EFCC that has to do with the sale of shares belonging to the Estate of Chijoke Oyinke. The claimant claimed he spent N200,000.00 (Two Hundred Thousand Naira) Only on legal fees. The sum of N750,000 he spent on accommodation, feeding and flight ticket. He attached the letter from Veritas Hopefield Solicitors dated 19th June, 2012. While it is not in dispute that the claimant must have spent some money in the cause of addressing the EFCC matter, he has not put up any document to help his case. If he spent the money on accommodation, feeding, flight tickets etc, he ought to have presented receipts to justify his claims. He has to realize that as the Managing Director of the 1st defendant, he is accountable to the Board. The Board will not approve any money that has not been verified. The claimant has not presented any receipt or document to justify the sum he spent on these claims. For this reason the court cannot order the 1st defendant to reimburse him for expenses spent. The claimant is claiming the sum of N200,000.00 (Two Hundred Thousand Naira) Only he spent to pay the counsel that handled the matter with the EFCC. It is not in doubt that the claimant acted as Managing Director in the matter involving the sale of Chijoke Oyinke. It is my view that as Managing Director he has contributed to the development of the 1st defendant. In a time like this the defendant should not him to carry the burden alone. At the time the issue of EFCC occurred he was the Managing Director of the 1st defendant. He is therefore, entitled to be reimbursed by the 1st defendant for the money he spent for legal services. Finally, the court makes no award as that cost of the trial of N5,000,000.00. It is interest of the claimant to hand over all the 1st defendant properties in his possession, until this is done, the court cannot compel the 1st defendant to release the Letter of Acceptance of his Resignation. There are conditions precedent that the claimant must comply with before the order he is asking for can be made. For the reasons given above, the claims of the claimant fail and are hereby dismissed. Judgment is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE.