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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE O.O. OYEWUMI DATE 26TH OF JANUARY, 2016 SUIT NO: NICN/LA/176/2013 BETWEEN MR. MICHAEL OLADIPO OLAYINKA - CLAIMANT AND 1. OAK PENSIONS LIMITED 2. MR. SAMUEL INYANG - DEFENDANTS 3. ABDUL WAHAB ADEBAYO IBRAHIM REPRESENTATION Mrs O. Badewole with her are Ayodeji Awobiyide, Oludayo Okeowo, Mrs Foluke Toyin Salami, Morenike Kuponiyi for the Claimant Mr. Wahab Shittu with him is Habeeb Oredola, J.O Olumide , Abiodun Oyewole, Taofik Muritala, Chinwendu Ifudu, Temitope Saliu, Emmanuel Sado, G.O Oyebade, Alayo Akanbi, T.O Olaniran and Peter Edokpwiyu for the Defendants JUDGMENT The claimant by complaint filed on 4thApril, 2013 claims the following against the defendants:- 1.A Declaration that the 1st Defendant's purported termination of the Claimant's employment and/ or the request/insistence that the Claimant disengage his employment as Managing Director/Chief Executive Officer of 1st Defendant is unlawful, unwarranted, unjustifiable and amounts to an unfair labour practice. 2.A Declaration that the claimant being a director of the 1st defendant is by law entitled to be served/receive notices of all directors’ meetings of the 1st defendant. 3.A Declaration that the 1st Defendant's failure to give the Claimant the mandatory Statutory Notice of the Board Meeting held on 9th day of January, 2013 whereat the Claimant's appointment as Managing Director was purportedly terminated and the 2nd Defendant was purportedly appointed as Acting Managing Director of the 1st Defendant renders the Board Meeting of 9/1/2013 and the resolutions passed at the said Meeting invalid, null, void and of no effect. 4. A Declaration that the purported termination of the appointment of the Claimant as the Managing Director of the 1st Defendant conveyed vide the 1st Defendant's Letters dated February 14, 2013 is null, void and of no effect. 5. A Declaration that the Claimant's appointment/employment as the Managing Director and Chief Executive Officer of the 1st Defendant subsist until the same is validly terminated in accordance with the law. 6. A Declaration that the Claimant is entitled to all the benefits, salaries, entitlements and appointment including his Board Sea/directorship of the 1st Defendant tied to/associated with his employment as Managing Director/Chief Executive Officer of the 1st Defendant until his employment is validly determined in accordance with the law. 7. An Order restraining the 3rd Defendant from further harassing, tormenting, oppressing, threatening, intimidating and/or pressurizing the Claimant to disengage his employment and/or forgo his entitlements. 8. An Order prohibiting the 2nd Defendant from further parading himself and or holding himself out as the acting Managing Director of the 1st Defendant until the appointment of the Claimant is validly terminated in accordance with the law. 9. An Order prohibiting the 1st Defendant from confirming the appointment of the 2nd Defendant or any other person as the substantive Managing Director of the 1st Defendant and/or presenting the 2nd Defendant or any other person to the National Pension Commission as and/or for recognition as the Managing Director of 1st Defendant until the appointment of the Claimant is properly determined in accordance with the law. 10. An Order prohibiting the National Pension Commission from recognizing the 2nd Defendant or any other person as the Managing Director of the 1st Defendant until the appointment of the Claimant is validly determined in accordance with law. 11. Cost of Action in the sum of N5Miliion. It is important to state that at the commencement of trial, the defendants filed a notice of preliminary objection, challenging the jurisdiction of this court to entertain this matter, the claimant reacted to it and the court ruled on the 20th of November, 2013 dismissing the objection but struck out claimant's relief 2 above. It should therefore, be noted that the decision of this court in this judgment excludes relief 2 of the claimant's claims. The claimant during trial testified for himself as CW. It is the claimant case that in 2006 he was employed as the Managing Director and Chief Executive Officer of the 1st Defendant, by the Board of the 1st Defendant and resumed work with the 1st Defendant as its pioneer Managing Director and Chief Executive Officer in May, 2006. While the 2nd Defendant is an employee of the 1st Defendant, who was purportedly appointed as acting Managing Director of the 1st Defendant pursuant to a purported resolution dated 9th January, 2013. That the 3rd Defendant is the Chairman of the Board of the 1st Defendant, and has been harassing, threatening and tormenting the Claimant with termination of his employment, and locking out the Claimant from his office. It is the claimant's case that in the course of his leadership in the 1st Defendant Company he committed his total loyalty and selfless efforts to drive the 1st Defendant's business to profitability with sustainable revenue streams and sizeable market share. He stated that apart from being the Managing Director and Chief Executive Officer of the 1st Defendant he is also a Director of the 1st Defendant. It is further stated by the claimant that on the 9th of January, 2013, he was informed by the 3rd defendant, the chairman Board of Directors that the 1st Defendant held a Board Meeting on 9th January, 2013 where the Board decided that he be removed as the Managing Director of the 1st Defendant on January 14, 2013. The 3rd defendant insisted that the claimant do in accordance with the Board’s decision as the 1st Defendant's Shareholders held a meeting on 9th of January, 2013 and decided to effect a change in the leadership of the 1st Defendant in order to pave the way for a long awaited Akwa-Ibom State Pension Business to come into the 1st Defendant's business portfolio and also that he should handover to the 2nd defendant who has been appointed as the acting Managing Director on the 9th of January, 2013. Claimant continued that the 3rd defendant directed him to submit a compensation estimate and stay away from the 1st Defendants' office premises as the 2nd Defendant had taken over the Claimant's Office as acting Managing Director. He stressed that prior to the 1st and 3rd defendant’s resolution and directive, no query nor allegation whatsoever was issued to him. Claimant asserted that on the 15th of January, 2015 the 1st defendant wrote to the National Pension Commission informing the Commission of his retirement and the 1st Defendant's Board Approval of the purported appointment of 2nd Defendant as acting Managing Director with effect from 9th of January, 2013. That the claimant was not served the statutory notice convening a meeting of the Board of Directors and Shareholders respectively with regards to his removal. The claimant faced with threat from the 3rd defendant submitted a proposed compensation package to the 3rd Defendant, and the 3rd defendant rather than settle the Claimant's compensation package and accept the Claimants offer of early retirement terminated the claimant’s employment vide a letter dated 14th of February, 2013 back dating the purported termination effective February 1, 2013. It is again the testimony of the claimant that on the 1st of March, 2013 he was served with a letter Special Notice, Notice of Extra Ordinary General Meeting and a letter dated 15/2/2013 written by the 3rd Defendant on behalf of ICMA Services Ltd. That the 1st Defendant by a letter dated 18th February, 2013 recalled the official car Toyota Avensis registration number, EA35LND which he had been using as his official car for over four years. That the purported termination of his employment by the 1st Defendant is null, void and of no effect. Claimant during trial tendered documents which were admitted and marked Exhibits OM 1 – OM21. He stated under cross examination that he understands the essence of a contract of employment by virtue of his position while in the employment of the defendants. He stated that paragraph 1 of Exhibit OM1ties his position to that of a director and by 2nd page of Exhibit OM1 private conduct it states that he cannot be a Managing Director without being a director of the board. He admitted signing form CO7. He denied that his appointment can be determined by giving three months notice. He stated that on the 9/1/13 he conveyed a strategic meeting with the 1st defendant staff, the company secretary and the 2nd defendant were present. That he left at the invitation of the 3rd defendant to attend an important meeting with the 3rd defendant. That he never agreed to proceed on an early retirement from the company. That on the 9/1/13 he was informed by the 3rd defendant that the board and the shareholders have agreed to effect a change in the leadership of the company in order to enable the company get the Akwa Ibom state business because the State wants an Akwa Ibom indigene so he should handover to the 2nd defendant, Samuel Nyang who is an Akwa Ibom State indigene. He admitted requesting for a compensation package, prepared a handover memo and he admitted receiving Exhibit OM4 i.e. the termination letter. He admitted that by virtue of the letter from his counsel Exhibit OM14 the outstanding issue is his severance package. He admitted that Exhibit OM15 governs the relationship between him and the 1st defendant. He stated that the approval of the Board must be sought upon his disengagement from the employment of the defendant. Claimant stated that he was informed by the chairman of the Board that there was a board meeting on the 9/1/2013 but upon verification from other directors they said they were not aware of any such meeting. That his employment has not been terminated but still subsisting, he denied receiving notice of meeting dated 27/ 2/13. He stated that in Exhibit OM8, he wrote that he received a notice of meeting dated 27/02/2013 but did not attend it. He admitted receiving Exhibit OM18 the board meeting dated 8/02/13. He also admitted receiving Exhibit OM5 a letter dated 26/2/13. He testified that he was not at the meeting dated 17/4/13 where the Board ratified his removal as a director of the company. That he was not served with the minutes of the Board meeting of 17/14/13. He admitted that he requested for his furniture allowance for the year 2013 in 2012 because he is entitled to it. That with regards to his tax deductions that 50% of the amount in Exhibit OM9 is to be borne by him for over 24 months and the defendants deducted the sum of N52, 000 from his salary. The 1st, 2nd & 3rd defendants jointly denies the averment of the claimant and traversed as follows, that the claimant was appointed as a Director of the 1st Defendant and that his appointment was predicated upon the Meeting of the Board of Directors of the 1st Defendant held on the 30th March 2006 and the claimant’s appointment as the (Managing Director/Chief Executive Officer) by the 1st Defendant is pursuant to an offer of appointment dated 26thApril 2006 incorporating the terms of his contract of service. The defendants denies paragraph 6 of the averment of the claimant and aver that the 1st Defendant had been in operation and was managed by its board of directors before the appointment of the Claimant. The defendants went on that the claimant was informed of the meeting dated 9th of January, 2013 and was in attendance but during the session of the meeting the claimant and the 2nd defendant informed the management staff present at the meeting that they had to attend an important meeting with the 3rd Defendant. That at the meeting, and in the bid to restructure the 1st defendant it was suggested by all present that the claimant should retire his position as the Managing Director (while retaining his directorship seat as the representative of the majority shareholder on the board of directors of the 1st Defendant) in order for the 2nd Defendant to assume the position of the acting managing director of the 1st Defendant pending the approval of the 2nd Defendant as substantive Managing Director by PENCOM and at a Board Meeting to be convened subsequently. That the claimant willingly and voluntarily agreed to an early retirement and said at the strategy session that he was going to be away and pleaded with the Staff to give all the necessary support to the 2nd Defendant who would be replacing him. That the claimant on the 16th of January, 2013 sent an email to the 3rd defendant attaching two documents that is (i) a copy of the letter to be sent to the National Pension Commission (PENCOM) (which reflected the understanding of the parties that the Claimant was proceeding on an early retirement) and (ii) PENCOM Guidelines. Defendants averred that the Claimant further suggested that the meeting of 9th January 2013 with the Chairman of the 1st Defendant be reduced into writing as a Board Meeting. The Claimant on this basis prepared a resolution reflecting that he would proceed on early retirement and took the resolution to the Company Secretary of the 1st Defendant for execution. That on the 21st January 2013, the Claimant further sent an email to the 3rd Defendant wherein he attached another set of documents he had prepared (i) a letter to PENCOM printed on the 1st Defendant's letterhead and (ii) A partly executed Extract of Minutes of the meeting held on 9 January 2013 which states that the 2nd defendant is the Acting MD following claimant's early retirement. Defendants continued that on 30th January 2013, the Claimant prepared a hand-over note, which was forwarded as an Internal Memo to the Executive Director to ensure a smooth transition of business operations to the 2nd Defendant. That further to PENCOM's response to the letter dated 15th January, 2013 declining refusal of the 2nd Defendant as the acting managing director of the 1st Defendant for non-compliance with the fit and proper requirements of the PENCOM, the Claimant via an electronic mail to the 3rd Defendant suggested that the 2nd Defendant take a break from his daily official duties so as to comply with PENCOM's requirement and eventual PENCOM confirmation of the 2nd Defendant as the acting managing director of the 1st Defendant. Defendants further states that the sum of N215,785,000.00 (Two Hundred and Fifteen Million, Seven Hundred and Eighty-Five Thousand Naira) claimed by the claimant as compensation package is without basis in the contract of employment. That the averment of the Claimant that he was unlawfully removed as the Managing Director/Chief Executive Officer of the 1st Defendant at the meeting of 9th January, 2013 without notice of the meeting to the Claimant contrary to Section 262 of Companies and Allied Matters Act herein referred to as (CAMA) is an afterthought. That by a letter dated 7th March, 2013 issued by the Claimant's Solicitor, the Claimant stated without any equivocation that the Claimant's appointment had been severed and that the only outstanding issue is the entitlement of the Claimant. The defendants stated that in accordance with the terms of employment of the claimant, the 1st defendant terminated the appointment of the Claimant as the Chief Executive Officer of the 1st Defendant in order to completely severe any relationship whatsoever with the Claimant in preparation for its restructuring and elected to pay the sum of N4, 190,990.82 as three month's salary in lieu of notice to the Claimant but the claimant was indebted to the 1st defendant to the tune of N5,277,942.04 and having deducted the debt thereof, the claimant is still indebted to the 1st Defendant to the tune of N1. 086,951.22. That the 1st defendant parted with its Honda Accord with registration number JD 192 AAA and (ii) 27 KV A Diesel Engine Perkins Generator set. Defendants denies the averment that the claimant was harassed and threatened by the 3rd defendant. It is the further case of the defendant that the board of directors of the 1st Defendant did not remove the Claimant as a Director nor was his appointment as the MD/CEO terminated at the meeting January 09, 2013. That Integrated Consultancy Management &Accounting Services Limited (ICMA) vide its letter dated 15th, February 2013 informed the 1st Defendant of its intention to withdraw its nomination of the Claimant to the Board of the 1st Defendant and sequel to the letter the 1st defendant issued a special notice that a resolution for the removal of the Claimant will be proposed at the extra-ordinary general meeting of the 1st Defendant of 17th April, 2013 same was duly communicated to claimant in writing. That the claimant failed to make representation at or prior to the extra-ordinary general meeting of the 1st Defendant of 17thApril, 2013. That the meeting of 17th of April, 2013 was held and the claimant was removed via a special resolution of the 1st Defendant dated 17th April 2013. Defendant stated further that Claimant’s claims in their entirety are frivolous, ridiculous and urged the court to award substantial cost The defendants by way of counter claim averred that the averment of the claimant that he was not in attendance of the meeting of 9th January, 2013 is false. They stressed that upon his voluntary retirement, the claimant was entitled to three months salary in lieu of Notice in the sum of N4,190,990.82 but this amount was used to liquidate the claimant’s debt in the sum of N5,277,942.04 in which remains the sum of N1, 086,951.22 unpaid. Wherefore the Counter Claimant claims against the Defendant to the Counter Claim as follow: a). The sum of N1,086,951.22 (One Million, Eighty Six Thousand, nine hundred and fifty one naira, twenty two kobo) being the outstanding debt which the Defendant to the Counter Claimant is owing to the 1stCounter Claimant. b) The sum of N5, 000,000 as cost of this suit. The defendants testified through DW1, its company secretary, DW2 Head of Investment Manager and DW3 the 2nd defendant and tendered documents which were admitted and marked Exhibits CI 1 – CI 16, BA1-BA16 and SI 1- SI2. DW1 testified that ICMS nominated the claimant as a Director. She testified that the defendant’s Board of Directors nominated the claimant as the Managing Director and Chief Executive Officer and the same Board also has the power to remove him. She stated that the claimant’s employment was not in any where written in Exhibit OM1 that it was based on the Articles of Association of the 1st defendant. That the claimant voluntarily retired as a Managing Director of the defendant. That the claimant brought in a resolution which contains the fact that he would be retiring and the 2nd defendant will be acting in his place. That the claimant’s appointment was thereafter terminated when the claimant failed to do the proper thing. She admitted that there was no written query against the claimant and that the chairman and the claimant cannot on their accord appoint the 2nd defendant as the Managing director unless ratified by the Board which was eventually done. She further admitted that until the time of ratification, the claimant was still the Managing director of the defendants and also that claimant's signature was not on Exhibit OM2. DW1 continued that it was not stated in Exhibit OM4 that the claimant’s appointment was terminated by the board as the claimant’s appointment can be terminated in two ways one by the Board and second by the letter of employment. She went on to state that upon the claimant directives his 2013 furniture allowances be paid in 2012. She admitted that as at the time Exhibit OM10 was received by the 1stdefendant, the originating processes of this suit had been served on the 1st defendant. She admitted also that she and the 3rd defendant signed Exhibit CI6 but same was neither endorsed nor certified that it is a CTC of a minutes book of the 1st defendant. It is the further testimony of DW1 that there is no notice in Exhibit OM21 that states that the claimant is removed as director of the 1st defendant and the resolutions are not stated in Exhibit OM21 DW2 who is the Head of Financial Control department of the 1st defendant, on the other hand testified that it was his duty to pay staff salaries, other disbursements and deduct monies ought to be deducted when due. That he calculated the claimant’s benefits based on the letter date 14/2/13 signed by DW1. He stated further that he was not aware that only the Board who appointed the claimant can terminate his appointment. That he was not aware that Exhibit OM4 was written without the Board’s approval. He admitted that the claimant is entitled to an annual travelling allowance, furniture allowance, housing allowance etc. with regards to leave accumulated he stated that a staff can carry over his leave for 3months after which it lapses and that the Human Resource paid the claimant his leave pay in lieu that is 17days as he is entitled to 30 days leave in a year. DW3 is the 3rd defendant, he gave evidence that the claimant signature ought not to be in Exhibit SI (1) and OM2. With regards to the termination of the claimant DW3 stated that in a corporate setting decision could be taken in between board but must be ratified by and approved at the next meeting. He stated that as at the time OM4 was written claimant was still a Director of the company. He stated that there was no board meeting prior to the date Exhibit OM4 was written as the first board meeting on 27/02/2013. He stated that the first shareholders meeting held on 17th of April, 2013 but prior to that meeting, the chairman invited him and the claimant to a meeting. He stated further that though there was nothing stating the removal of the claimant in Exhibit OM18 the agenda falls under Any other Business. He admitted that exhibit OM 4 was written before the board meeting of 27/2/13. That the chairman briefed him in the presence of the claimant, issues discussed at the private meeting on the 9/1/2013. That the claimant was never threatened. That Exhibit C15 is the record of the minutes of what transpired on the meeting of 27/2/2013. He continued that though the claimant never wrote to the management about his retirement, there is however a letter claimant wrote to Pencom informing them of his voluntary retirement. At the close of trial and as it is customary for parties to do in law, the defendant whose right it is to first file final written address, did file on the 9th day of June 2015 their final written address wherein it framed six issues for the court’s determination; 1. Whether in the circumstances of this case as constituted, the Claimant is entitled to any of the reliefs sought in the general complaint when those reliefs are examined closely in relation to the evidence/exhibits led and tendered in the proceedings. 2. The Claimant did not place any material facts relating to the terms and conditions of his service in the pleadings and his evidence are glaringly at variance with the averments therein. Whether this Honourable Court can grant the Claimant's reliefs as presently constituted in view of the irredeemable defects of the Claimant's pleadings? 3. Whether the Claimant's contract of employment with the 1stDefendant was validly terminated in accordance with the terms and conditions of employment? 4. What are the legal consequences of the Articles of Association of the 1st Defendant on the employment of the Claimant? As a corollary thereto, can the Claimant remain in employment of the 1stDefendant after his removal as a Director? 5. Whether the Claimant is estopped by conduct and representation from asserting contrary to the terms contained in his several letters and more particularly his Solicitors' letter of 07 March 2013? 6. Whether having regards to the nature of the Counterclaim, the documentary and oral evidence before this Honourable Court, the Counter Claimant is entitled to the reliefs sought in their Counterclaim. On issue one, counsel posited with regards to claimant’s issue one, that the provisions of Section 131 - 134 of the Evidence Act places the burden of proof on the party who assert that his termination is unlawful. He stated that by Exhibit OM1 that is the contract of employment between the claimant and the 1st defendant which provides that; "TERMINATION Either party may terminate this appointment at any time by giving three months' notice in writing or payment of three months' salary in lieu of notice." A vivid reading from the above did not provide that for the termination of employment to be valid, it must be carried out by the board of the 1st Defendant. Exhibit OM4 was duly signed by the chairman of the 1st defendant and his entitlement listed in OM4B which the claimant acknowledged. That the claimant has not sufficiently substantiated his claim one in the amended statement of claim. He urged the court to so hold. On relief two, counsel submitted that Claimant's success on this relief will depend on proof of the existence of a Board Meeting on 9th January 2013 where a decision to terminate the Claimant's employment was taken by the 1stDefendant. He stated that from the evidence before the court, it is clear that the purported board meeting never took place on the 9th of January 2013 as erroneously stated in Relief 2. The evidence on record is that the employment of the Claimant as Managing Director was terminated by the 1st Defendant by a letter dated February 14, 2013 (Exhibit OM4A) and not by any letter arising from a purported Board Meeting of 9th January 2013. He urged the court to so hold. On relief three and four, counsel adopts his argument in relief one and argues that the position of the Claimant as Managing Director/ Chief Executive Officer of the 1stDefendant is completely different from the position of the Claimant as a Director of the 1st Defendant, that while the Claimant's position as Managing Director/Chief Executive Officer of the 1st Defendant is regulated by the contract of service (i.e. OM1 &OM15), the position of the Directorship of the Claimant in the 1st Defendant Company on the other hand is regulated by the 1st Defendant's Memorandum and Articles of Association (OM19 - Article 6 (1) (2) thereof) and the relevant provisions of Companies and Allied Matters Act 1990 and that the attempt by the claimant to merged the both positions as one will be an exercise is vainness. He urged the court to reject the position in its entirety. On relief five, counsel submitted that the success or otherwise of the claim is dependent on proof by the Claimant that his employment was unlawfully terminated or determined by the 1st Defendant. Having shown clearly vide exhibits OM4A &OM4B consistent with exhibit OM1 &OM15 above, the Claimant cannot insist otherwise. On issue two, counsel submitted that claimant failed to plead and prove any material fact relating to his alleged unlawful termination of employment. He cited the cases of ATIVIE V. KABELMETAL (NIG.) LTD [2008] 10 NWLR (PT. 1098) 399 AT 414; LUFTHANSA V. ODIESE (2006) 7 NWLR (PT. 978) 34, where the Court of Appeal held that: "Thus any evidence led in proof of unpleaded facts would not avail the party which seeks to rely on such evidence. A valid pronouncement- cannot therefore evolve from such facts that had not been averred to by parties in their pleadings. Also, a party that failed to lead evidence in proof of averments in pleadings would be deemed to have abandoned those facts. In this case, there were material conflicts between the respondent's pleading and the evidence in support of his case. - P. 80, B-C; 82, F. He submitted that from the record before the court, there was no evidence with respect to the fact that there was a Board Meeting on 09 January 2013 where the decision to terminate the Claimant's employment was decided. Assuming, without conceding that there was a Board Meeting on 09 January 2013, the content of Exhibit OM 2(B) which the Claimant tendered is unambiguous and clearly contradicts the averments in the Claimant's pleadings. The said resolution proclaims that "following the early Retirement of the Pioneer Managing Director/CEO" and not "termination of employment". Also under oath, claimant testified that he doesn’t know of the board meeting on 9/1/13 but the chairman of the board told me that there was board meeting he was competent to tell me. Counsel stated that it is trite law that hearsay evidence is not admissible in prove of disputed facts. He submitted that the Claimant has placed nothing before this Court to contradict or controvert the Defendants' cogent evidence. On issue three, counsel submitted that the Claimant is not entitled to any of the reliefs claimed against the Defendants having failed woefully to place credible evidence before this Court in support of same. That Exhibit OM1 and Exhibit OM15 are the documents that encapsulates the fundamental terms and conditions agreed by the parties in relation to the Claimant's employment with the 1stDefendant. The termination Clause in Exhibit OM1 provides thus "TERMINATION Either party may terminate this appointment at any time by giving three months' notice in writing or payment of three months' salary in lieu of notice" Clause 1.7.2 of Exhibit OM15 provides that In all other circumstances, employment could be terminated by either party giving notice in writing as follows: Senior Associate I and above - 3 months Associate I - Associate II - 2 months All other cadres - 1 month" He posited that the 1st Defendant having acted within the terms governing the Claimant's employment as contained in Exhibit OM1 and OM15 prior to the termination of his employment, every other issue relating thereto, is inconsequential and there would be no basis for the Court to interfere. He also submitted that the fact that Exhibit (OM1) the Claimant's offer of employment does not state that the decision to employ the Claimant as MD/CEO was made pursuant to a prior Board Resolution/Board meeting. Similarly, it should be noted that Exhibit OM4 does not state that the termination of the Claimant's employment was pursuant to any prior Meeting. The common thread that runs through the Claimant's employment letter and his letter of termination is that these actions, by the representatives of the Company, were subsequently ratified either expressly or by acquiescence. Thus the termination of the Claimant's employment was ratified and the state of mind of the Board of a company is the state of mind of the company and counsel urged the court to so hold. On issue four, counsel submitted that majority shareholders of the 1st Defendant - ICMA Services in exercise of its statutory right, vide its letter dated 15th February, 2013 informed the 1st Defendant of its intention to withdraw its nomination of the Claimant to the Board of the 1st Defendant. Further to the foregoing, the 1st Defendant issued the relevant statutory notices to the Claimant who acknowledged receipt of the notices and that from a joint reading of Exhibit CI6 and Exhibit S14, the logical deduction to be drawn is that the Claimant has since been removed as a Director of the 1st Defendant and the necessary steps have been taken consequently to effect the removal of the Claimant as a Director of the 1st Defendant at the Corporate Affairs Commission this the claimant has not disputed. That the evidence led by the claimant before this court is that despite the fact that he was served with the relevant statutory notices for the meeting of April 17th 2013 wherein his removal as a Director of the Company was determined, he failed to attend the meeting because he had instituted this action before the Court and cannot claim otherwise. Thus the effect of the removal of the Claimant as a Director is that he ceases to occupy the position of the Managing Director as provided by Article 61 (1) and (2) of the 1st Defendant's Articles of Association (Exhibit OM19) provides thus: "(1) The Directors may from time to time appoint one or more of their body to the office of Managing Director or any other office of profit in the Company (except that of Auditor) for such period of and on such terms of any agreement entered into in any particular case, may revoke such appointment. (2) If any Director so appointed shall cease for any cause to be Director, he shall Ipso facto and immediately cease to hold such office, but without prejudice to any claim he may have for damages for breach of any contract of service between him and the company." Counsel urged the court to hold so. On issue five, counsel submitted that the testimony of DW1 and DW3 establish the fact that the Claimant prepared Exhibits OM2A and OM2B which the Claimant took to DW1 for her signature and subsequently forwarded same to the 3rd Defendant for his signature, preparatory for onward transmission to PENCOM. Also the claimant by his letter dated February 01, 2013 (Exhibit OM9) stated thus: "At a private audience with you later that evening, I suggested that such a sudden exit in a financial services firm may create crisis in the market and give negative impression to our clients, that I should be allowed to stay till January 31, 2013. This was agreed and communicated to Mr. Samuel Inyang (who had started to act as MD / CEO) on January 14, 2013" Again the Claimant's solicitor by its letter dated 7th March 2013 (Exhibit OM 14) addressed the Managing Director of the 1st Defendant stated the position that the Claimant resigned his appointment with the 1st Defendant and the only outstanding issues the terminal benefits of the Claimant thus he has admitted through his counsel that he is no longer an employee of the 1st Defendant. "Documents at our disposal also show that by a Letter dated 15th January, 2013 your Company Secretary informed PENCOM that our Client was proceeding on an early retirement with effect from 31st January, 2013. In your said letter dated 15/1/2013 your Company also communicated its appointment of a successor to Mr. Olayinka's Office, to the National Pension Commission. In effect, it is not in doubt that our Client severed employer and employee relationship with your company with effect from 1st February, 2013. The only outstanding issue at the moment, is our Client's severance package (entitlements..&benefits) arising from our Client's premature. retirement at the request of the Chairman and Board of Directors. In other words, our Client was declared redundant. It is noteworthy that but for the request of early retirement, our Client would have remained in your Company as Managing Director until the year 2016 when he would have retired at the age of 60 years. We have the instruction that whilst waiting for payment of our Client's severance package your Company by a Letter dated 13th February 2013 purportedly terminated our Client's employment. Kindly be advised that such a Letter is not only patently illegal but it is also legally impossible to terminate the employment of someone who had already ceased to be in the Company's employment" Counsel submitted that the claimant explicitly by his actions indicated that he has agreed to proceed on early retirement; it is therefore unjustifiable for the same Claimant to allege that his employment was unlawfully terminated at a Board Meeting of 09 January 2013. On issue six, the defendant to the counterclaimant requested for his terminal benefit and in response the 1st Counterclaimant forwarded to the Defendant to Counterclaim his entitlements and his indebtedness to the 1stCounter Claimant vide a letter dated 14 February, 2013 (Exhibit OM 4B). "Entitlement from the company: Three (3) months Gross salary (less PAYE Tax) in lieu of notice 3,422,094.99 Payment in lieu of17 days outstanding leave for 2012 &2013 768,895.83 Total 4,190, 994.82 Indebtedness to the company: Outstanding PAYE Tax under assessment from 2009 to 2012 2, 627,942.03 Furniture allowance over payment for 2009 1,300,000.00 Outstanding from 2013 Furniture allowance 1,350,000.00 Total 5,277,942.04 It is the further submission of the defence that the Defendant to Counter Claim was not entitled to payment in lieu of 132 days leave as it is impossible for any employee of the 1st Counter Claimant to accumulate such number of days in view of Staff Handbook which prohibits accumulation of outstanding leave. Counsel submitted that the Counter Claimant is entitled to recover 50% of the total sum assessed as under deduction of PAYE from the salaries of the Defendant to Counter Claim at the material time under reference and that the 1st Defendant to Counter Claim deducted N52,855.02 (Fifty-two Thousand, Eight Hundred and Fifty-five Naira, Two kobo) from his salary for the months of November, 2012, December, 2012 and January, 2013 totaling 158, 565.07 (One Hundred and Fifty¬ eight Thousand Five Hundred and Sixty-five Naira, Seven Kobo) and this the defendant to the counterclaimant admitted. The summary of the total sum payable by the Defendant to Counter Claim as under assessed PAYE is as contained in Exhibit BA 16 (Summary of Tax under assessment for Mr. Olayinka.) as follows: Under Assessment 50% N N 2009 1,399,452.08 699,726.04 2010 1,137,589.08 568,794.54 2011 1,251,978.08 652,989.04 2012 1,783,994.96 891,997.48 Total 5, 573,014.20 2,786,507.10 Payment from 52, 855.02 Total 158,565.07 Oct. 2012 to Jan 2013 Net Amount payable 2,627,942.03 That the Counter Claimants therefore are entitled to judgment in the sum of N2,627,942.03 being indebtedness against the Defendant to Counter Claim as at February, 2013. Counsel submitted that Defendant to Counter Claim in 2009 as Managing Director of the 1st Counter Claimant instructed the payment of furniture allowances in excess of N1, 300, 000.00 (One Million Three Hundred Thousand Naira Only). The sum total of the money approved and paid vide Exhibit BA 1 - BA6 equals N8,175,000.00 (Eight Million One Hundred and Seventy Five Thousand Naira Only) as opposed to the N6, 875, 000.00 (Six Million Eight Hundred and Seventy Five Thousand Naira Only) which the Defendant to Counter Claim is entitled to receive from the 1st Counter Claimant as Annual allowance. The statement of account of the 1st Counter Claimant for the year 2009 admitted as Exhibit BA15 revealed that the Defendant to Counter Claim received N8, 175, 000.00 (Eight Million, One Hundred and seventy five Thousand Naira Only) vide the 1st Counter Claimant Cheque listed in Exhibit BA16 therefore leaving the sum of N1, 300, 000.00 (One Million Three Hundred Thousand Naira Only) outstanding against the Defendant to counter claim. Counsel urged the court to hold that the 1st defendant is entitled to recover same. Counsel contended that the Defendant to Counter Claim directed payment of 2013 furniture allowance (future allowances) in 2012 which was approved and paid to the Defendant to the Counter Claim. Exhibit OM 17 shows that the defendant to counter claim directed payment of sum of N1, 350, 000.00 (One Million Three Hundred and Fifty Thousand Naira Only) to be paid to him as 2013 furniture allowance which said sum was approved on 26 July, 2012 and a Cheque no 4702. Thus the Counter Claimant are entitled to recover the furniture allowance paid to the Defendant to the Counter Claim. That the addition of the outstanding debt of the Defendant to the Counterclaimant which includes the outstanding 2013 furniture allowance (N1, 300,000), the overpayment of allowances for 2009 (1,350,000), the unpaid tax assessment (N2, 627,942) amounts to the sum of N5, 277, 942.04 (Five Million, Two Hundred and Forty Two Naira, Four Kobo) as the total of the debts standing against the Defendant to the Counter Claim in favour of the 1stCounter Claimant as at February, 2013. Counsel contends that the Defendant to the Counterclaimant is entitled to 3months gross salary in lieu of notice of N3, 422, 049.99 (Three Million, Four Hundred and Two Thousand, Forty Nine Naira, Ninety-nine kobo) and also Payment in lieu of 17 days outstanding leave for 2012 in the sum of 768, 895.83 (Seven Hundred and Sixty-eight Thousand, Eight Hundred and Ninety-Five Naira, Eight¬ three Kobo). The sum total of the entitlements of the Defendant to the Counterclaim's is N4, 190,945.82 (Four Million, One Hundred and Ninety Thousand, Nine Hundred and Forty Five Naira, and Eighty Two Kobo). That a set off of the entitlements the Defendant to the Counterclaim's against his indebtedness to the Counter Claimants leaves an outstanding sum of N1, 086, 951.22 (One Million, Eighty Six Thousand, Nine Hundred and Fifty One Naira, Twenty-two Kobo) due to the Counterclaimant from the Defendant to the Counterclaim. Counsel posited that the defence thereto by the defendant to the counterclaim argued that he is entitled to N8, 190, 000.00 (Eight Million, One Hundred and Ninety Thousand Naira) against the Counter Claimant, as payment in lieu of accumulated leave of 132 working days is spurious and unsubstantiated in evidence. He stated that Exhibit OM15 expressly limit accumulation of leave by the employee of the 1st Counter Claimant it provides at Paragraph 2.1.6 on page 8 as follows: "Staff are encouraged to take their leave periods as at when due. Where for cogent reasons staff is unable to utilize his leave, a maximum of two weeks of such unutilized leave could be carried over to the following year, provided that such leave shall not be used later than March of the following year. Where it is not taken, the leave shall be deemed to have been forfeited." It is submitted that it is practically impossible for any staff of the 1st Counter Claimant to accumulate leave of 132 days at any point. Counsel urged the court to discountenance the vague claims of the Defendant to Counter Claim and rule that the Counter Claimants are entitled to the relief sought in the counter claim. With regards to cost, counsel submitted that the law is trite that cost follows event, he cited the case of ADELAKUN V. ORUKU [2006] 11 NWLR (PT.992) 625 AT 646 PARA C and submitted that the Claimant brought the Defendants to Court on false allegations. The claimant on its own part filed his final written address on the 6th of October, 2015, He distilled five issues for the court’s determination; 1. Whether in the light of the fact of the Claimant's employment as Managing Director, and Director of the 1st Defendant, the Claimant's employment is protected by statute/has statutory flavour. 2. Whether the Claimants' employment was validly determined by the 1st Defendant. 3. Whether the actions taken by the Defendants in purporting to determine the Claimant's employment amount to unfair labour practices? 4. Whether or not, the 1st Defendant is entitled to the reliefs claimed in the counter-Claim. 5. Whether or not, the issues raised in paragraph 25 of the Statement of Defence on the purported removal of the Claimant from the office of Director, which issues were procured/occurred after the institution of this Suit and after service of its Originating Processes had been effected on the 1st Defendant, are affected by Lis Pendis and consequently are not properly before this Honourable Court/liable to be ignored by the Court. On issue one, learned counsel to the claimant submitted that it is trite that in seeking declaratory reliefs as the Claimant seeks in this Suit, the Claimant must rely on the strength of his case and duly plead and prove facts relevant to his claims. She stated that the Claimant's employment as Managing Director, and Director, has the legal effect that the Claimants' relationship with the 1st Defendant is not ordinary master/servant relationship regulated solely by the terms and conditions in Exhibit OM 1. The Claimant's said employment is regulated and protected by the provisions of the Companies and Allied Matters Act, 1990 (CAMA) as relates to a Managing Director and Director of a Company and this makes the Claimant's employment, one with statutory flavour. He cited Sections 219 (C), 221 (1), 263 (9), 266 (1), (3), 268(1), (2) of the Companies and Allied Matters Act 1990 (CAMA). Counsel urged the court to so hold. On issue two, counsel argued that flowing from issue one, the claimant’s employment was unlawfully determined that the Claimant's employment being one protected by statute, the parties, i.e. the Claimant and the 1st Defendant are bound to comply by the relevant provisions of the Statute regulating the termination of the Claimant's employment. He cited the case of IMASUEN V UNIVERSITY OF BENIN (2010) 20 NLLR Part 55 page 1 @ 24. Counsel submitted that by virtue of the position of the claimant as a director, it is crystal clear that the Claimant's employment could only be validly terminated, whether under Exhibit OM1 or Exhibit OM 15 by strictly complying with the statutory provisions which makes it mandatory for the Claimant who at all times material is a Director of the 1st Defendant, to receive notice of/be invited to such Board Meeting and afforded the opportunity to make his defence where the 1st Defendant will take the decision to terminate the Claimant's employment. Counsel contended that there is no evidence that claimant received notice of Board Meeting in respect of Exhibit OM2B or Exhibit OM4A. Counsel in response to the defendants in its argument that there was no Board meeting on 9/1/2013 stated that the Resolution Exhibit OM2A was signed by the DW1 and (Exhibit OM2B) was co-signed by DW1 (Company Secretary of the 1st Defendant) and the 3rd Defendant. (Chairman of the 1st Defendant). That there is no signature/initial of the Claimant or any endorsement by the Claimant on Exhibit OM2B to warrant the inference that the document or statement in the said Exhibit OM2B was made by the Claimant and also that the Defendants' contention that the parties had a consensus agreement that the Claimant should proceed on voluntary retirement, which contention was not supported by credible evidence, finds no place in the statutory provisions regulating the termination of the Claimant's employment. Furthermore, the Defendants failed to produce any document wherein the Claimant agreed with the Defendants to disengage his employment. Counsel submitted thus that the action of the 3rd defendant directing the claimant to terminate his employment on account of a purported decision of Board Meeting held on 9/1/2013,without complying with the provisions of the CAMA are void acts having been premised upon the unlawful termination of the Claimant's employment which cannot be ratified by the Board of the 1st Defendant and the Claimant's employment as Managing Director subsists as no valid letter of termination has been issued to the Claimant terminating his employment as Managing Director/Chief Executive Officer of 1st Defendant. Counsel urged the court to hold so. As regards issue three, Counsel submitted that the claimant averred that the 3rd Defendant, as Chairman of the 1st Defendant summoned the Claimant to a private meeting on 9/1/2013 where the 3rd Defendant represented to the Claimant that the Board and Shareholders of the 1st Defendant met and decided that the Claimant should disengage his employment, proceed on voluntary early retirement and handover his office to the 2nd Defendant in order to pave the way for the inflow of a business portfolio from AkwaIbom State Government. Sequel to the private meeting the 3rd defendant issued threats and harassment and subsequently terminated the claimant’s employment vide Exhibit OM4A and OM4B and the publication made to PENCOM vide Exhibit OM2A that the Claimant was proceeding on sudden voluntary retirement when the Claimant did not tender any letter of retirement. These treatments meted out to the Claimant run contrary to best international labour practices. She urged the court to hold so. On issue four, it is the position of the claimant's counsel that the counterclaim of the sum of N1 ,086,951.22 and cost of N5,000,000.00 is founded on the purported termination of the Claimant's employment as Managing Director/CEO vide Exhibit OM4B. That since Exhibit OM4B was issued unlawfully, to terminate the employment of the Claimant in contravention of Statutory provisions of the CAMA as argued above, no valid claim or Suit can arise from Exhibit OM4B. He cited the case of NDIGWE V NWUDE [1999] 11 NWLR (Part 626) at page 314. Counsel submitted that the Counter-Claim which pertains to Annual Leave Allowances, Annual Furniture Allowance, Annual Travel Allowance and other allowance paid to the Claimant by the 1st Counter-Claimant in the course of the Claimants' employment, were not substantiated in the said Exhibits. Counsel posited that claimant’s 2010 Furniture Allowance was retained by the 1st Counter-Claimant to offset the Furniture Allowance over payment of 2009 and thus defendant is not entitled to the sum of N1,300,000.00. He submitted that with regard to the claim for N1, 350,000 outstanding from 2013 Furniture Allowance as indicated in Exhibit OM4B, there is no evidence before the Court to support this claim of alleged indebtedness of the Claimant for this sum. Counsel urged the court to dismiss the counterclaim of the defendant. On issue five, counsel submitted that claimant duly served the defendants Claimant's Motion on Notice dated 4/4/2013seeking injunctive reliefs and the Originating Processes of this Suit on 15/4/13. Rather than accord due respect for the Processes of the Court, the Defendants went to town taking steps, procuring documents that is Exhibits CI (6), BA14, S1(3), OM20, OM21,CI (3), which are not admissible all in the bid to foist a faith accompli on the Court and to jeopardize the claims of the Claimant before the Court. Counsel urged the court to disregard the documents procured by the defendants and grant the claimant's claims. The defendants on the 6th of October, 2015 filed their reply on point of law in reaction to the claimant’s written address. Counsel posited that issues 1, 3 and 5 formulated by the Claimant are fresh issues that were not in any manner whatsoever addressed by the Defendants in its Final Address. That the law forbids a party from setting out facts which are not on the record of the Court in his final address as counsel cannot cure lack of evidence with averments in his final address. Counsel submitted that Claimant Final Address is full with facts contrary to his pleadings and at variance with the entire evidence before this Court. That the extraneous facts are; a) That the Claimant entire case was that there was a Board of Directors Meeting on 09 January, 2013 where his appointment as MD/CEO was terminated without receiving the notice of the meeting. The Claimant who premised his case on alleged board meeting of 09 January, 2013 now state in his address that no such board meeting or early retirement of the Claimant as purported in Exhibit OM2B had taken place. If the Claimant agrees with the Defendants that there was no Board Meeting on the 09 January, 2013, which Board Meeting does he predicate his case for non-service of requisite notices or deem such meeting as null and void. b) Contrary to the assertion in the Claimant Final Address, the Defendants never either by way of pleading or evidence stated that the Claimant had retired from the employment of the 1st Defendant. The Defendants case was that the Claimant agreed to proceed on early retirement and he took several positive steps in respect thereof by preparing the purported draft resolution and giving same to the DW1 and also requesting for a severance package as evidenced in paragraph 2 of Exhibit OM8 Counsel urged the court to rely on the record of this suit and discountenance the facts in the Claimant Final Address. With respect to the argument of claimant that his employment is statutory flavoured, counsel submitted that Claimant is under the misconception that his employment with the 1st Defendant as CEO /MD regulated by OM1 and OM15 was one and the same office with his position as director and therefore protected by statute and CAMA does not contain any provision whatsoever with respect to, or governing the Claimant's employment with the 1st Defendant. That the employment of the Claimant cannot be a statutory employment having not been created by any statute. Counsel submitted that the case Claimant made heavy weather of the discrepancies in the date reflected in Exhibits CI3 and SI3. The Claimant's grouse is not whether he was validly removed at the extra ordinary general meeting of 17th April 2013 as clearly established in the minutes of the meeting tendered as Exhibit CI6 but that the error in the date of the resolution filed at the Corporate Affairs Commission (CAC) as contained in Exhibit CI3. That the mistake thereof was that of the external counsel instructed to file the notice of the removal of the Claimant as director at the CAC. Counsel urged the court to so hold. Counsel also submitted that Claimant asserts that the documents establishing that the Claimant had been removed as a Director ought not to be admitted in evidence on the grounds that the issue of the Claimant's Directorship was already a subject matter of litigation. He posited that the argument of the claimant is misleading as the Claimant received all the relevant statutory notices and board papers notifying him of the meeting of 17 April 2013 (Exhibit OM21) on 01 March, 2015 (as evidenced by Exhibit OM6). Exhibit CI2 was received by the Claimant on 15 February, 2013. The Claimant, rather than attending the extra-ordinary general meeting of 17th April 2015 came to court to file this present suit to challenge the termination of his employment. Counsel submitted that the notice served on the Claimant was apt and in accordance with the law and not against the rule of lis pendis. Counsel in reply to the final of submission of the claimant that an unlawful act cannot be ratified by the board submitted that Section 66 (2) of CAMA state that a company is empowered in law to ratify any act of its directors (even pre-incorporation acts). It is therefore a severe misconception of the law as submitted by counsel to the Claimant that the termination of employment of the Claimant cannot be lawfully ratified by the Board of Director of the 1st Defendant as evidenced in Exhibit C15. He cited in support the case of BARRON V POTTER [1914] 1 CH where the court held that "where all the directors of a company agree to something which the articles require to be decided by resolution, then the unanimous agreement of all the members of the company is as good as a formal resolution passed by a majority at a meeting". Counsel urged the court to so hold. Counsel submitted that with regards to issue three of the claimant final address that the fact that an employee has a fixed year of retirement or has been notified of pending retirement plan does not on its own constitute a bar to subsequent termination of his employment before date of retirement by the employer in the absence of any specific provision to the contrary in the contract of service between the parties. Once there is a provision in the contract of service permitting termination and it is complied with, the fact of notification of pending retirement is irrelevant to the right of either party to determine the contract. He also submitted that the claimant’s claim that the 3rd defendant harassed and threaten him was not substantiated in evidence but on the contrary there are evidence of exchange of correspondence from the Claimant requesting for severance package of N215million (Exhibits OM8, OM9 and OM14) between the Claimant and the 3rd Defendant none of which bear any element of threat or show that the author was acting under duress. Counsel urged the Court to discountenance the entire argument contained in issue 3 of the Claimant final Address as same is not predicated on any credible evidence before this Court. Counsel submitted that its counter claims were sufficiently established on the balance of probability hence the evidential burden of proof has shifted to the Claimant to disprove the established facts in which claimant failed to place any material evidence before this Court controvert the Counter Claimant's calculation of his indebtedness to the 1st Counter Claimant. Counsel also submitted that the failure of the claimant to respond to all the issues 1 and 2 of its final address remain uncontroverted counsel urged the court to hold so and grant the defendants reliefs in its counter claims. I have given a careful and insightful consideration to the processes filed, the witness statement of all witnesses and their demeanour and arguments of both learned counsel in their respective final submissions, which are basically not dissimilar. It is thus in the calm view of the court that issues germane for the just determination of this case are; Whether or not the claimant's employment is one that should be accorded a right of statutory flavour; Whether claimant has proven his claims to be entitled to same; and Whether defendant is entitled to its counter-claim. I need to reiterate as stated earlier in this judgment that claimant's relief 2 as regards his position as Director of the 1st defendant was struck out of his claims. The import of which is that all issues bordering on same in the submissions of the parties are discountenanced. Now, as regards issue one, it is the claimant case that in 2006 he was employed as the Managing Director and Chief Executive Officer of the 1st Defendant and that by virtue of same his employment of a statutory employment and should thus be accorded same. The question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or the relevant statute. The duty to construe is the exclusive preserve of the Courts. By FAKUADE V. OAUTH [1993] 5 NWLR (PT. 291) 47. The fact that an employment is a creation of statute does not elevate its employees to the status of employment with statutory flavour. The character of an appointment and status of the employee in respect thereof is determined by the legal character and contract of the employment. See UMTHMB V. DAWA [2001] 16 NWLR (PT.739) 424 @ 447. Thus, where the contract of employment is determinable by the agreement of the parties, simpliciter, that cannot be equated with employment with statutory flavour. The court went on to state that the fact that the other contracting party ( in this case the 1st defendant) is a creation of statute does not make its employees enjoy the rights of employees with statutory flavour. See also EMOKPAE V. UNIVERSITY OF BENIN [2002] 17 NWLR (PT. 795) 139. It is obvious from the facts and claims before this court that the employment of the claimant is not one with statutory flavour but purely a master servant relationship with the 1st defendant. See CBN. V. IGWILLO [2007] 14 NWLR (PT. 1054) 393; where the court explained all the 3 categories/types of employment, as those regarded as purely master and servant; those where a servant holds office at the pleasure of the employer and those where the employment is regulated or governed by statute. In LAYADE V. PANALPINA WORLD TRANSPORT (NIG) LTD [1996] 6 NWLR (Pt.456) 544. The apex court held thus- ''Apart from those employments governed by statutory provision e.g. employment in civil service of statutory bodies where termination must follow the provisions of the relevant statutes. (OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT. 34) 162 193/194, the master in other cases can terminate for good or bad reasons subject to remedies of compensation where applicable for wrongful dismissal" PER BELGORE, J.S.C. (P. 16, Paras. E-G). It is obvious from the above decision of the apex court that it is only employment governed by statutory provision that can be accorded the rights of employment with statutory flavour. The claimant in this case as evinced on record was employed as the Managing Director/ Chief Executive Officer of the 1st defendant by a letter dated 26th April, 2006, admitted as exhibit OM1. The content of which is reproduced for ease of reference viz- "INTERNATIONAL CONSOLIDATED FUNDS LIMITED 26th April 2006 Mr. Michael Oladipo Olayinka 47, Agboola Ajumobi Crescent, Magodo GRA, Lagos Dear Mr. Olayinka, OFFER OF APPOINTMENT Please refer to your application for employment and the several discussions you have had with representatives of the Company. The Board is pleased to offer you appointment as the Managing Director and Chief Executive Officer of the Company. This offer is subject to the terms and conditions of employment stated hereunder and conditioned on our receiving satisfactory medical report and references from your Referees. EMOLUMENTS Your annual remuneration payable monthly in arrears, except as otherwise approved is as stated hereunder: Basic Salary 900,000.00 Housing Allowance 3,500,000.00 Furniture Allowance 1,350,000.00 Entertainment Allowance 300,000.00 Utilities Allowance 480,000.00 Dressing Allowance 360,000.00 Education Allowance 600,000.00 Domestic Allowance 300,000.00 Security Allowance 400,000.00 Leave & Travel Allowance 3,375,000.00 Medical Allowance 600,000.00 13th Month Allowance 75,000.00 Driver’s Allowance 360,000.00 Transport (Car 2.0 Liters Engine) Generator (27 KVA Diesel Engine) Club Membership (Maximum of Two (2) Clubs) Professional Membership (Maximum of Two (2) Local Bodies) Pension Contribution (7.5% of applicable portion of Remuneration) TERMINATION Either party may terminate this appointment at any time by giving three months' notice in lieu of notice''. It is clear as crystal from the above letter , specifically paragraphs 1, lines 2, 3, 4 and 5; that the claimant was employed by the Board of the 1st defendant and his appointment is subject to the terms and conditions stated in the same letter. which in effect means that the claimant's terms and conditions of employment are as stated unambiguously in exhibit OM1 and nowhere else. There is no legislation or any statutes on record stating his terms and condition of service. It is on this premise that I find that the claimant's employment by the 1st defendant is purely that of a master servant and not a statutory employment. I so find and hold. As regards issue two, which is whether or not the claimant has proven his case to entitle him to same. The claimant contends that on the 9th of January, 2013, he was informed by the 3rd defendant, the chairman Board of Directors that the 1st Defendant held a Board Meeting on 9th January, 2013 where the Board decided that the Claimant be removed as the Managing Director of the 1st Defendant on January 14, 2013 to effect a change in the leadership of the 1st Defendant in order to pave the way for a long awaited Akwa-Ibom State Pension Business to come into the 1st Defendant's business portfolio and also that he should handover to the 2nd defendant who has been appointed as the acting Managing Director on the 9th of January, 2013. According to him, the 3rd defendant directed him to resign his appointment and in doing so he should submit a compensation package to the 3rd Defendant, and the 3rd defendant rather than settle his compensation package and accept the Claimant's offer early retirement terminated the claimant’s employment vide a letter dated 14th of February, 2013 back dating the purported termination effective February 1, 2013. He posits that the action of the 3rd defendant is unlawful and thus he is still in the employ of the 1st defendant. The 1st, 2nd & 3rd defendants jointly denied the averment of the claimant and submitted that the defendant's action was in consonance with the terms of the claimant's employment and thus lawful. The defendant argued that the claimant willingly and voluntarily agreed to an early retirement. However the 1st defendant terminated his employment on the 14th February, effective from 1st February, because of the act of approbating and reprobating on the agreement between the claimant and the defendants. It is the law of common place in the realm of master servant relationship as is in this case for a master to hire and fire its servant at will, it must however, be in accordance with the contract of employment which governs the relationship of master servant. It was decided supra that the terms and conditions of the claimant's appointment are as stipulated in exhibit OM1 and thus both the claimant and the 1st defendant or its agents are bound by it. See MR S. ANAJA V UNITED BANK FOR AFRICA PLC [2014] 4 ACELR 78. AFRIBANK (NIG) PLC V. OSISANYA [2000] 1 NWLR (PT. 642) 592. AKINFE V. U.B.A. PLC [2007] 10 NWLR (PT. 1041) 185. In ANIFOWOSHE V. WEMA BANK PLC [2015] LPELR, 24811, The Court of Appeal held that- '' A claimant who seeks a declaration that the termination of his appointment was wrongful among other claims must prove the following material facts namely: 1. That he is an employee of the defendant. 2. The terms and conditions of his employment, 3. The way and manner, and by whom he can be removed. See also RAJI V. OAU [2014] LPELR, 22088.CA. Now, a pertinent question requiring an answer is, was the claimant's employment determined in accordance with his terms and conditions of service? The claimant's grouse for coming to court are in two major folds, first, that his employment was wrongfully terminated and that he was not paid his terminal benefits. In proving these, he tendered his letter of appointment herein before reproduced, i.e. exhibit OM1. It is not in doubt that he was the Managing Director/Chief Executive Officer of the 1st defendant, all parties are in agreement with that. The only area of disagreement is the way and manner his employment was determined and payment of his terminal benefits. It is the claimant's case that the 1st defendant did not follow/comply the terms and conditions of his employment in determining his relationship with it. I have painstakingly read through all the testimonies of the witnesses before the court, their demeanours were also taken note of in the open court, the amended statement of facts and amended statement of defence and counter claim, including all the exhibits. A single and obvious thread that runs through the facts before me is that the claimant must of a matter of urgency exit the services of the 1st defendant to enable the 1st defendant access its long awaited AKWA IBOM State pension business, which is precedent upon having the 2nd defendant who is an indigene of the State as the Managing Director/CEO of the company. The testimonies of the claimant, DW1 and DW3 are in all fours with this position of the court. DW1 whilst in agreement with the claimant's position admitted under cross examination that the claimant's employment is regulated by exhibit OM1 and that by that letter he was appointed as the MD/CEO of the 1st defendant by the Board of the 1st defendant. She also agreed with the claimant that it is the Board that could terminate his employment and went further to agree with the claimant that until the board's ratification on the 27th February, 2013, the claimant was still the Managing Director of the 1st defendant. She equally admitted that the claimant on the 9th January, 2013 at the meeting conveyed by him, excused himself with the 2nd defendant to hold a meeting with the 3rd defendant and later came back to inform them that he would be retiring and that they should support the 2nd defendant who would take over from him. To her the claimant did not tender any resignation letter or letter of voluntary retirement, but the 1st defendant terminated his appointment due to the circumstances that followed, but she failed to tell the court the actual circumstances that led to his termination. DW1 clearly admitted again that the board of the 1st defendant did not pass a resolution terminating the claimant's appointment as MD/CEO but that the board ratified the termination afterwards. She stated further that ''legally the Board cannot ratify an improper procedure. DW1 finally defines voluntary retirement as a retirement done willingly. DW2 on his own part stated that he did not see any letter showing that the claimant voluntarily retired from the employ of the 1st defendant and also did not receive any letter from the board before he wrote exhibit OM4. DW3 also admitted that it is the board who appointed the claimant that has the requisite power to remove him. He also confirmed that on the 9th January, 2013, the 3rd defendant invited him and the claimant to a meeting and was aware of what transpired between the claimant and the 3rd defendant. He also admitted that the claimant's appointment was not terminated by the board but was later ratified by the board. To him although the agenda of the meeting that purportedly ratified his termination did not specify the issue of Managing Director/Chief Executive Officer termination but that the board did ratify it. He also like DW1 defines voluntary retirement as a situation where a staff willingly decides to leave the company. DW3 finally asserted that the 3rd defendant can solely terminate the claimant employment and get it ratified by the board. I took the liberty of reproducing in summary all the above testimonies of both principal witnesses before the court in order to paint a clearer picture of the intrigues that played out in ensuring the exit of the claimant from the 1st defendant. It is plain from the record that initially the 1st defendant through the 3rd defendant urged the claimant to proceed on early retirement from the employ of the 1st defendant contingent upon the payment of compensation to him, whilst in another breath the 1st defendant contended that it terminated the claimant's employment in order to restructure the company. If indeed the claimant retired voluntarily from the 1st defendant's company, it would then be erroneous for the 1st defendant to afterwards terminate his employment. As it stands there is no letter of voluntary retirement before the court, rather what is on record is the claimant's letter of termination of employment by the 1st defendant dated 14th February, 2013 and signed by the 3rd defendant, which the defendants alluded to. The content of exhibit OM4(A) is hereafter captured thus-- TERMINATION OF APPOINTMENT February 14, 2013 Mr. Michael O. Olayinka No. 47 Agbola Ajumobi Street. Magodo Lagos. Dear Mr. Olayinka, TERMINATION OF APPOINTMENT Please refer to our meeting of January 9,2013 and the subsequent discussions and actions in respect of the above. This is to formally inform you that your services are no longer required as the Chief Executive Officer of Oak Pensions Limited with effect from February 1,2013. Your entitlements and benefits shall be computed and communicated to you. On behalf of the Board, Management and Staff of the company, we thank you for your services to the company and wish you success in your future endeavors. For: Oak Pensions Limited AWA IBRAHEEM, PHD, FCA CHAIRMAN This letter was written after the meeting the 3rd defendant held with the claimant and the 2nd defendant urging the claimant to retire voluntarily and submit a hand over note in order for the company to pay him his compensation. Claimant did infact submit his hand over note (exhibit OM3) engineered by the 3rd defendant, not only that he also told a meeting of its staff giving effect to the 3rd defendant's instruction that he would be retiring and that they should give all the required support to the 2nd defendant who will succeed him. The 3rd defendant rather than to act as per his discussion with the claimant, turned back on the obligation of the company to pay the claimant his compensation as agreed and in a clear abuse of his power and corporate recklessness issued a letter of termination of employment of the claimant dated 14th February, 2013 back dating the effective date of his termination to 1st February, 2013.( emphasis mine). The implication of this letter in view of the content and tenor are in two fold, first, it shows that the claimant was infact threatened to either voluntarily retire on the 9th of January or face the music of termination, which exhibit OM4(A) actually gave effect to and secondly, the termination with retrospective effect which is in law wrongful. It is apparent from all the facts before the court that the claimant was forced and arm twisted if I may use this word to ease him out of the way as a sacrificial lamb to get the defendants to do the bidding of Akwa Ibom State; which is to enthrone its Christened State indigene in the person of the 2nd defendant Mr. Samuel Inyang as the MD/CEO of the 1st defendant. This is equally evident in the hurriedly written letter to PENCOM on the 15th of January attaching the extract of a minute of the purported Board meeting of the 1st defendant on 9th January, 2013, a document signed by DW1 and a Director of the 1st defendant; no wonder PENCON refused by that letter to approve the defendants request, because as the defendants have repeatedly submitted there was no meeting of the board of the directors of the 1st defendant on the 9th January, 2013 which means exhibit OM2(A) and OM2(B) are faux pas. In fact both DW1 and DW3 admitted under cross examination that the claimant is not a signatory to the said exhibit contrary to an earlier contention of the defendants that the claimant prepared these documents. This is purely an unfair labour practice and discriminatory which both the 1999 Constitution as amended and the ILO Convention111 frowns at. See Sections 42, and 254C(1)(f)and (g) of the 1999 Constitution as amended. This court by virtue of Section 254C1(f) and (g) has exclusive jurisdiction to decide on issues bordering on unfair labour practice or international best practices in labour, and or disputes arising from discrimination at workplace. The import of this is that this court is now empowered to move from the strict adherence to the harsh and rigid common Law stance of an employer dismissing/terminating its employees employment for bad or no reason at all without proving and convincing the court that the reason is not unfair or that it acted reasonably in treating the nominated reason for termination. Although the 3rd defendant did not give any reason for terminating claimant's employment on the face of exhibit OM4(A), however, the 3rd defendant signatory to the letter, referred to a meeting held with the claimant on the 9th January and ''...subsequent discussions and actions..'' in respect of same. What the 3rd defendant referred to as the meeting and subsequent discussions came to the fore vide the evidence of the claimant, DW1 and DW3 summarized supra in the course of this judgment. Basically the reason for easing out the claimant as stated on oath by the evidence of the trio is to pave way for the Akwa Ibom State Pension business and conditional upon having the 2nd defendant an indigene of the State as the Managing Director/.Chief Executive Officer of the company as stated earlier in this judgment. This clearly is discriminatory and an unfair labour practice and an abuse of power exhibited by the 3rd defendant. My position is strengthened by the decision of the appellate court in UMTHMB V. DAWA supra @ p.448, Per Nzeako JCA, held thus- ''I do not think that it can be repeated too often that every employer, including every public body must be careful not to abdicate or to abuse its powers. Employers and public bodies are required by law at all times, to act in good faith and reasonably and fairly towards people and matters under their charge in all circumstances''. The English court in GISDA CYF V. BARRAT [2010] LPELR, 17877 UKSC, while construing the effective date of termination of employment/ dismissal held that- ''...the correct view of the law is that an employment contract is brought to an end by a dismissal letter sent by or on behalf of the employer to the employee at his or her address, and delivered to that address, and that it comes to an end on the date of such delivery, regardless of whether or not the employee was there at that time or later on that day, or did not see the letter, for whatever reason, until a later date..." Per LORD KERR (Pp. 16-17, Paras. G-E) . Applying the persuasive decision of the apex court of England in the above decision to this case, the 3rd defendant letter communicating claimant's termination of appointment to him was written on the 14th February 2013, and was communicated to him thereafter which means that the effective date of the termination of his appointment was neither the 1st February nor the 14th February, 2013 and thus making it to have a retrospective effect is wrongful, an afterthought, vexacious and against international best practice. The implication of this is that as at the 14th of February, 2013 when the letter of termination was issued, claimant was still a staff of the 1st defendant as admitted by DW1. Now, to the pertinent question, who has the power to determine claimant's appointment?. The claimant's contention is that it is the Board of the 1st defendant who appointed him that can terminate his appointment, while the defence position is that the 1st defendant or the 2nd or the 3rd defendant can terminate his appointment which may be ratified by the board at a later date. It is the submission of the learned defence counsel that by Section 66(2) of CAMA, the actions of the 3rd defendant can be ratified by the board, although he agreed that neither exhibit OM1 nor exhibit OM4 made reference to that. The law as I have always understood it, which is founded in good sense and sound legal reasoning, is that he who has power to appoint has the corresponding power to terminate that appointment. This is statutorily backed up by Section 11(1) (b) of the Interpretation Act; CAP.123, LFN 2007. The board of directors of the 1st defendant appointed the claimant as the Managing Director/Chief Executive Officer of the company and it is the law that the power to determine that appointment rests with the board of the 1st defendant, that is my understanding of the import of Section 11(1)(b) of the Interpretation Act, supra. Howbeit, the board's ratification of the purported termination of the claimant's employment vide the 3rd defendant's letter, evinces an intention by the board to determine claimant's employment relationship with it. Claimant has proven that his termination was wrongful, unfair labour practice, discriminatory and against international best practise. It is in view of all the above that I find that the claimant was constructively dismissed by the 1st defendant effective from the 27th of February, 2013 when it was ratified by the Board of the 1st defendant. I so find and hold. Having held that the defendant constructively dismissed the claimant from its service, the consequence of which is that claimant is entitle to damages in form of the requisite notice period, other entitlements consistent with his status as the Managing Director/Chief Executive Officer and compensation as the 3rd defendant agreed as the Chairman of the board of the 1st defendant, with the claimant, which is the price for easing him out of its employ in the above captured manner. The claimant as part of his claims want the court to declare that his position as the MD/CEO of the 1st defendant still subsists. In IFETA V. S.P.D.C (NIG) LTD [2006] 8 NWLR (PT.983) 585. the apex court held that "The position of the law therefore is that where there has been a purported termination of a contract of service, a declaration to the effect that the contract of service still subsists will rarely be made''. This is because the court cannot order for reinstatement of an employee in a master/ servant relationship as it is in this case. It is obvious that the 1st defendant no longer desire any relationship with the claimant anymore and the court is forbidden from forcing a willing servant on an unwilling master, that is the notorious position of the law. It is in the light of this that I find that claimant's relief 5 fails. With regards to relief 6, I have held supra that claimant is entitle to 3 months salary in lieu of notice, salary uptill the 27th February 2013 when the board constructively dismissed him, leave allowance, other entitlement consistent with his position as the Managing Director/Chief Executive Officer of the 1st defendant and damages. By virtue of Section 19(d) of NICA 2006, which empowers this court to award compensation or damages, I award two years salary to the claimant as compensation. Claimant's reliefs 7 to 9 have been overtaken by event as evinced on record of court vide exhibits tendered, accordingly claimant's reliefs 7 to 9 are discountenanced. The claimant by his relief 10 is claiming the sum of N5,000,000.00 as cost. The law is trite as rightly submitted by learned counsel to the defendants that cost follows event. The court must thus take into consideration in awarding cost the peculiar circumstances of the case in arriving at a just decision on the award of cost. Claimant filed this case in 2013, almost 3 years ago. His counsel has put up 19 appearances in the matter and considering the declining value of naira, it is in my respected view that the claimant is entitle to cost in the sum of N500,000.00. I so find and hold. Issue three is with respect to the defendants counterclaim. The counter claimant is claiming the sum of N5,277,942.04 being according to it a total of N1,300,.00 outstanding furniture allowance for year 2009, overpayment of allowances in the sum of N1,350,000 and unpaid tax assessment as N2,627,942 and less the total entitlement of the claimant in the sum of N4,190,945.82 leaving a balance of N1,086,951.22 as the sum payable to the defendant by the claimant. It is not in contention that the claimant has an outstanding sum of N2, 627,942.03 to as tax underpayment, the claimant did admit this. The law is settled that facts admitted need no further proof. Claimant also admitted that there was an overpayment of his 2009 furniture allowance, but averred in paragraph 11 of his defence to the defendant's counter claim that he did not collect his year 2010 furniture allowance in order to offset the 2009 furniture allowance overpayment in 2009. This was not controverted in any way by the defendant, the implication of which is that the defendant admits this fact. It is the law that an uncontroverted or unchallenged fact is deemed admitted and should be believed by the court. it is in that regard that I belief the credible evidence of the claimant in defence to the counterclaim that his year 2010 furniture allowance was used to offset the overpayment in 2009. As regards the 2013 furniture allowance paid to the claimant, it is the submission of the defendant that the claimant collected his 2013 furniture allowance in 2012. Claimant stated that he applied for his 2013 furniture allowance because he was still in employment of the defendant. It is plain on exhibit OM17 that the claimant applied for his 2013 furniture allowance in 2012 and this was approved and payment ordered by the Head Finance of the 1st defendant's company who is an agent of the 1st defendant, the defendant cannot thus resile from it at this stage it is too late in the day to so do. The law is of common that the act of an agent of a disclosed principal is binding on the principal, where the Agent acts within the scope of his authority actual or apparent . See FEBSON FITNESS CENTRE & ANOR V. CAPPA HOLDINGS LTD & ANOR[2015] 6 NWLR PT. 1455, P.263 @ 279. See also Lolyd"S Grace, Smith & Co. (1912) AC 716. Giving credence to this DW2 stated that all the allowances given to the claimant are all part of his entitlements. It is in the light of this that I find that the claimant having been in the employ of the defendant uptill 2013 is entitled to be paid furniture allowance, moreso when he did not resign his employment by himself but was forced out of the defendant's employment as held supra in this judgment. It is from all the above that I find and hold with regards to this issue, that the defendant/counterclaimant's claim for N2, 627,942.03 as tax underpayment succeeds, while its claims for the sum of N1,300,000 and N1,350,000 respectively as overpayment of furniture allowance to the claimant in 2009 and year 2013 furniture allowance fail. It is in the light of the above evaluation and reasoning that I find and hold that the claimant's claims succeed in part, while the defendant's counterclaims also succeed in part. In the final analysis and for the avoidance of doubt, it is declared and ordered as follows- 1. That the termination of the claimant's employment by a letter dated 14th February and backdating it to 1st February is wrongful. 2. That the claimant was constructively dismissed by the 1st defendant on the 27th February, 2013 from its employment. 3. That the claimant is entitled to be paid all his entitlements as Managing Director/CEO of the defendant. 4. It is hereby ordered that the claimant be paid his February, 2013 salary in the sum of N1,140,698.31. 5. That claimant is to be paid the sum of N3,422,094.99 as 3 months salary in lieu of notice. 6. That the claimant be paid the sum of N27,376,759.02 as compensation. 7. That claimant is to pay the sum of N2,627.942.03 as 50% contribution of his under paid tax, this is to be paid to the Lagos State internal revenue board. 8. That the defendant is not entitle to the sum of N1,300,000 and N1,350,000 respectively. 9. The total sum of N32,439,552.32 is to be paid to the claimant by the defendant. 10. I award the cost of N500,000.00 to the claimant. 11. All sums awarded in this judgment shall be paid by the defendant within 30 days of this judgment, failing which it shall attract 21% interest annually. Judgment is accordingly entered. I must commend the lead counsel for the parties, i.e Mrs Olayemi Badewole of counsel to the claimant on the one side and Mr. Wahab Shittu leading Mr. Habeeb Oredola counsel to the defendants for their industry, diligence, Professionalism, candour and the demonstration of their indepth knowledge of the law during trial of this case. HON. JUSTICE OYEWUMI OYEBIOLA O. JUDGE.