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REPRESENTATION U.C Chikelue with him is Jude Odome for the Claimant N.O Oyewale with him is Ademola Olowoyeye, O.Y Olowoyeye (Miss), A. Ademuleru, Aderonke Ademitan for the Defendant JUDGMENT The claimant by a complaint filed on 3rd of December, 2012 claims the following against the defendant:- The sum of N77, 201,367.00 (Seventy-Seven Million, Two Hundred and One Thousand, Three Hundred and Sixty-Seven Naira Only) the breakdown is as follows:- 1. 3 month salary in lieu of NOTICE N5,889,998.00 2. Payment in lieu of unutilized leave N4,883,332.00 3. Cost of transportation of personal effects to Poland N271,000.00 4. Cost of Flight ticket (Business class) to Poland N500,000.00 5. Total contribution to the company pension scheme N7,231,215.00 6. Profitability bonus payment for 2008 N5,859,999.99 7. Profitability bonus payment for 2009 N8,789,997.00 8. Profitability bonus payment for 2010 (Prorated) N3,662,499.00 9. 13th Month salary for 2009 N1,953,333.00 10. Gratuity N35,159,994.00 11. Approved parting Gift N3,000,000.00 Interest at the prevailing Bank rate on the amount Claimed ______________ TOTAL N77, 201,367.00 It is the claimant’s case that he was the managing director of the defendant from 18th of July, 1991 to 6th of March, 2010 a period of eighteen years until he was asked to resign by the Board of Directors of the Defendant on the 6th of March, 2010. That he was further appointed as a Director in line with the defendant’s Memorandum and Articles of Association. He stated that while in the course of his employment, he raised the company to a position of profitability and enhanced the loyalty of staff for over a period 18 years. That on the 6th March 2010, the Chairman and some members of the Board of Directors of the Defendant urged him to resign even though he had one more year of service before retirement. That in line with the terms of contract of employment between him and the defendant, he resigned his appointment giving three months notice effective from the 5th day of June 2010. However, the defendant barred him on the 13th of March 2010 from gaining entry into the defendant’s premises by the defendant when he still had 2 months to serve. He stressed that at the time of resignation, he was entitled to his final entitlements as enumerated above. That his monthly salary from the Defendant was N1, 953,333.00 as at 6th March, 2010 when he resigned. The claimant during trial testified for himself as CW and tendered documents which were admitted and marked as Exhibits SP1-SP25. He stated under cross examination that on the 6th of March, 2010 at the Annual General Meeting of the company, issues were raised with respect to his missing file and history of his employment for over 18years. He urged the General Manager to search for the file which was later recovered but with documents missing therein. Sequel to that he applied to the Board to ratify his employment benefit. That the company secretary was present when the board resolution containing all his present entitlements was made. He admitted signing Exhibit SP4 and also admitted Exhibit SP5 as the resolution of the Board increasing his salary. He admitted to be entitled to one monthly salary as Christmas bonus. He stated further that the Board resolution and minutes are usually served on him by virtue of his position as a Managing Director. That he could get his missing employment history if it was available. That on the 6th of March, 2010 he submitted a report on in house Pension Fund. That as at the time he wrote Exhibit SP10 he sought the board’s approval. He stated that the in house pension fund is for all confirmed staff and he does not need any approval of the defendant board to benefit therefrom. He posited that though his contract of employment made no mention of gratuity, but his request for it is based on the fact that one Mr. G.O Akinsola a director was given his gratuity on retirement. He went on that the N3,000,000 parting gift was approved by the Board as part of his claims. That his monthly remuneration is N1.9Million and his profitability bonus is 25% of his yearly salary. He posited that what is mandatory for him is to go for medical checkup and not mandatory that he goes on leave as he collects his leave allowance. He stated that the board on the 6/03/2010 needed him to handover to a new person because he had just one year to retire and they realize that if he retires normally they will pay a huge sum of money so they planned his exit when he travelled for medical checkup. The defendant on the other hand admits paragraphs 1, 2, 3, 4, 5 & 6 of the Statement of Fact. It contends however, that it is not within the competence and jurisdiction of this court to adjudicate on matters relating to the operation of Companies and Allied Matters Act, 2004. The defendant admitted that as part of the remuneration of the claimant, it made special incentives to the claimant to receive for every year of profitable operation of the company a non-taxable bonus amounting to 25 % of the claimant's annual salary during the year in which the defendant recorded profit. That the claimant was not in a position to amend, alter, suspend or replace the policy of the defendant as laid down by the Board of Directors except the necessary authority, consent and permission is sought and obtained and he owes a fiduciary duty to the defendant in conducting the affairs of the defendant in a manner that is transparent and credible and was not required to make a secret profit or engage in the policy other than as the condition of employment permitted or authorized by the Board of Directors of the defendant. It continued that it was a condition of the employment of the claimant that any amendments to the terms and conditions of service shall be null and void unless given in written form and approved by the Board of Directors and the claimant. That the defendant caused amendment to the remuneration of the claimant at the Board of Directors Annual General Meeting held on the 5th – 7thJuly, 2005 and the Board of Directors resolution of 17th February, 2009. By the Board resolution of 17th February, 2009, the only amendment to conditions of service was with respect to the claimant's monthly remuneration effected as follows: Daltrade Nigeria Ltd ………………………… N200,000.00 Daltrade Nig. Ltd _Expatriate allowance $4,000.00 Dee Ventures (Subsidiary of Daltrade) N200,000.00 Dee Ventures Expatriate allowance 4,000.00 Euros That the claimant with a view to earning unauthorized and unapproved income by the defendant, set up Staff Trust Funds. The claimant in a year when profit is declared claims earned dividends and 25% of annual income as profitability bonus That the claimant made secret income which is also not part of the income allowed by the terms of his employment between 2006 and 2008. In 2006 he collected the sum of N3,608,614 (Three Million Six Hundred and Eight Thousand, Six Hundred and Fourteen Naira Only) with first collection being N2,706,461 (Two Million, Seven Hundred and Six Thousand Four hundred and Sixty One Naira Only. While in 2007 he collected US Dollars 17,319 (Seventeen Thousand Three Hundred and Nineteen Dollars) collected on the 14th February, 2008 through remittance via Skye Bank reg. BM/MD/0336/08.The Defendant's letter of instruction to Skye Bank dated 14th February 2008. US Dollars 17,536 (Seventeen Thousand Five Hundred and Thirty - Six US Dollars) collected on the 17thOctober 2008 through remittance as part of the total sum of $37,600 US dollars remittance on that 17thOctober, 2008. Defendant stressed that the claimant collected monies in excess of his entitlements ranging from Christmas bonus to 25% profitability bonus. It admitted that the claimant was entitled as special incentive to non-taxable bonus amounting to 25% of his annual salary in any year the company recorded profit, but contrary to that the claimant got excess profitability bonus. That the claimant received without authority the total sum of N22, 862,899. That upon discovery of the above stated the defendant gave the claimant the option to vacate his office as Managing Director and surrender his shares for purchase in the company. To make the claimant's exit easy, defendant passed a resolution dated 6th March, 2010 worked out a final terminal benefit of #6,557,374.00(Six Million, Five Hundred and Fifty Seven Thousand, Three Hundred and Seventy Four Naira Only). A parting gift of #3,000,000.00 (Three Million Naira Only) and price for 3,795 shares at #2,000.00(Two Thousand Naira) per share making #7,590,000.00(Seven Million, Five Hundred and Ninety Thousand Naira). Two cheques were duly issued in favour of the claimant, but the claimant declined to collect the cheques but opted for a legal action. That the fact that the claimant did not give approval to the resolution dated the 6th of March, 2010 does not amount to an operative amendment of the terms of employment of the claimant or a waiver of the right of the defendant to claim all its rights from the claimant. The defendant denies liability for payment of transportation to Poland, unauthorized leave as no due particulars are supplied as to his movement within the years as to suggest or confirm that they are spent fully in the employment of the defendant. The defendant denied liability to pay a contribution to Pension Fund scheme as the claimant already has a pension scheme with AIICO insurance. The defendant is not liable to payment of profitability bonus for 2008, 2009 & 2010 pro-rated because the basis for calculation has not been established. That the claims for Director's fees for 2008 & 2009 are incompetent as they derive from the operation of the Companies and Allied Matters Act, 2004.The defendant is not liable to payment of 13th month salary for 2009 as the basis for claim has not been established as the terms of employment do not so provide. That the defendant is not liable to the claimant in any way as per his claims and urges the court to dismiss the claimant's action with substantial cost. The defendant by way of counterclaim claims as follows; (i) A declaration that the resolution of the Board of Directors of the defendant dated 6th of March, 2010 does not constitute a valid amendment to the conditions of employment of the claimant dated 30thJuly, 1991 the claimant not having approved same. (ii) A declaration that the offer to pay a final entitlement and parting gift to the claimant is unenforceable as a result of the claimant not having approved the resolution that formed the basis of it and the claimant's option to ventilate his right to entitlement. (iii) A declaration that the defendant is entitled to dismiss the claimant from its employment upon the finding that the claimant initiated unauthorized acts especially, a Staff Trust Fund, from which the claimant derived unauthorized income without the knowledge and approval of the Board of Directors of the defendant and for many act contrary to the terms of employment and the fiduciary responsibilities the claimant has, but breached. (iv) A declaration that the defendant is entitled to a refund of all sums of money amounting to a total sum of; (a) N22, 862,899 (Twenty Two Million, Eight Hundred and Sixty Two Thousand, Eight Hundred and Ninety Nine Naira Only). (b) US Dollars-238,236 (Two Hundred and Thirty-Eight Thousand Two Hundred and Thirty - Six U.S. dollars only). (c) Euro- 169,919 (One Hundred and Sixty Nine Thousand, Nine Hundred and Nineteen Euro Only) which the claimant earned between the period of 2005 and 2010 without the authority, consent and approval of the defendant and contrary to the terms and conditions of service of the claimant as the Managing Director of the defendant. (v) Interest at the rate of 15% per annum on the sum adjudged pursuant to (iv) above calculated from the day of judgment till the whole amount is fully paid. The defendant during trial testified through one Pastor Ademola Wemimo Odunaiya the Chairman of the defendant and a chartered accountant as DW1 and Samuel Yunana the defendant’s Managing Director as DW2. They tendered documents which were admitted and marked as Exhibit PAW1, SY1-SY12. DW1 testified that the Auditors drew his attention to illegal activities being perpetrated by the claimant, he then called a meeting of the board to deliberate on the finding of the Auditors. That he was not aware that the claimant’s file was missing and that the defendant did not remove any document from the claimant’s file. He stated that there were so many illegal payments made by the claimant to himself which the board was not aware they are the 13th and 14th month salary illegal pension scheme called in house pension scheme, where he was the greatest beneficiary. That the claimant also under state the tax payable to Inland Revenue in a significant way. That the claimant was never queried until the auditors drew the company’s attention to illegal activities of the claimant. He admitted that the Company Secretary wrote to the board about the in house pension fund which the Board approved. DW1 also admitted that the board gave approval for payment of the 13th and 14thmonths salary of the claimant. That the defendant promised to pay the claimant his 3months salary in lieu of notice and he was also paid some money as terminal benefit. Next, DW2 testified that he was the General Manager while the claimant was the Managing Director of the defendant. That he can approve staff salary in the absence of the claimant and a compliance unit to verify before the final approval. That the claimant and not the company mandated him to investigate about his missing file. He admitted that Exhibit SP6 was prepared by him. That he found the documents stated in Exhibit SP6 two days before the meeting of 6/03/10. That the defendant did not ratify the board resolution. He stated that it is not his duty to keep staff files but that of the Human Resources. That all board resolutions are normally in the Company Secretary's custody but if he collects money or its entitlement the account department should have it to guide them on what he is entitled to or not. He admitted that the contract of employment is in the purported missing file and the contract of employment is the same as the history of remuneration. He admitted that some documents were missing in the file. That he felt the act of the claimant’s file missing is that of the saboteurs as it wasn’t where it ought to be that is in the Accounts Department. That if claimant is being paid wrongly it is because the accountant does not have detailed record of his entitlement. He admitted to be part and a member of the in house pension scheme but the claimant was the one who initiated it without the approval of the defendant and he benefited from the scheme. He posited that the computations for 2004 was signed by one Mr Adekoya and dated on the 30/06/2005. He admitted that salary is part of remuneration. He stated that since the 25% profitability bonus is written on Exhibit SP16, it is part of contract of employment. He admitted that the claimant is entitled to insurance policy of his choice. He stated further that when the claimant’s salary was increased, he could not find copies of the resolution for increment in his salary and entitlement. The claimant on the 3rd of October, 2013 filed a reply to the defendant’s statement of defence wherein he averred that paragraphs 14, 15, 16, 17 and 18b are matters related to labour contract of employment, employee/employer relationship matters arising out of workplace and conditions of service and falls within the executive jurisdiction of National Industrial Court. That apart from execution of all the powers and authority given to him by the Board of Directors of the defendant, He was also to ensure and maintain the company policy of the defendant especially on matters that were existing before his appointment, in line with best practices of labour as obtained in the industry as per international labour standards. That aside the special incentive of 25% of the annual remuneration in profit year, he is also entitled to: (a). Non taxable entertainment allowance (one gross salary per quarter). (b). Non taxable profitability bonus (25% of remuneration for every profitable year) (c). Payment of 7.5% of his gross salary to his Life Insurance Policy in any Insurance Company of choice in exchange for the contributory Pension Fund. (d). Non taxable Christmas Bonus in accordance with Company's staff condition of service. (e). Non taxable payment of 13th Month Salary payable in accordance with Company' staff condition of service. (f). Non taxable payment of 14th Month Salary payable in accordance with Company's staff condition of service. (g). When travelling, he is entitled to a Business Class Ticket for himself and his wife. (h). An adequately furnished residential accommodation with colour TV set, telephone connection with running cost such as water, electricity, running expenses and maintenance of generator, salaries of steward, security and gardener if any, at the expense of the company. (i). Free medical care for himself and his wife. (j). The Managing Director is entitled to a non-taxable fringe allowances equaling taxation deduction from his remuneration as above. (k). That the Managing Director is entitled to payment of Director's fees as payable to other directors of the Board of Directors of the Company" That all these entitlement are in addition to his monthly remuneration and are contained in the Board Resolution made by the Defendant on the 6th day of March 2010. He stated that there were other amendment that were made to the conditions of service of the claimant which were contained in the claimant file. That sometime between January and early February 2010, his official file disappeared from the office and the General Manager then Mr. Samuel Yunana was delegated to search for the missing file of the claimant that the file was later recovered at the internal control department of the Defendant but that all the Board Resolution and approval on company policies and remuneration history of the Claimant including the appendix of the remuneration had been removed also removed were approvals in respect of the In-house Pension Scheme. That as a result of the events, the Board of Directors of the defendant made a resolution based on the missing vital document containing the remuneration history of the claimant from his file, dated 6th day of March, 2010. That contrary to the defendant’s averment, claimant averred the staff trust fund of the defendant started in the seventies and it was open to all confirmed staff. The fund was operated as a voluntary employee/employer contribution of the staff salary. That there was no over payment or making of additional income as it was approved company policy and the vouchers and list of the employees that benefited went through all the internal checks of the defendant company, Head of Account, internal control department, Internal Audit etc and were authorized by the defendant before the beneficiaries were paid. The claimant avers that he is entitled to 13th and 14th month salary/bonus which was approved by the board and contained in his official file at the defendant company and that when the document was removed from the file strangely, the Board confirmed it by a resolution dated 6th day of March 2010. That before letter of instruction to the bank is raised, that the computation is prepared by the Head of Account of the defendant and verified by the internal control department and internal Audit department and authorized by the defendant before approval by the managing director and that computation for the payment was prepared by the Head of Accounts, authorized, verified by Internal control department and internal audit of the defendant and approved before payment were made and there was no over payment. He averred that there was no excess Christmas bonus as Christmas bonus was based on gross salary and profitability in line with staff conditions of service as was confirmed in the Board Resolution dated 6th day of March 2010.That he did not receive any excess profitability bonus, in 2003, 2004, 2005, 2006, 2007 and, or in any year at all, that the non taxable bonus was contained in his contract of employment which was continuously upgraded over the years and was part of the document that was removed from the Claimant office file and was confirmed by the resolution of the Board of Directors dated the 6th March 2010. That the sum of N1,553,000.00 was authorized and signed by the personnel of defendant in the name of WALE for the purpose of getting foreign exchange that it was processed and checked and signed by the internal control department of the defendant and it was verified before the money was paid. That all payment made to American International Insurance Company PLC (AIICO) were for his entitlement to take insurance policy which was contained in the conditions/ contract of employment and was further confirmed by the Resolution of Board of Directors dated 6th March 2010. Claimant stated that all payment made to him by the Defendant during this period was authorized, checked and processed by the internal control department and the Audit department and finally approved before payment were made and there was no unauthorized or unapproved payment and he did not take any salary advance but part of his entitlement, allowances that were outstanding, being processed before his letter of resignation on the 6th of March 2010. He posited that the sum of N 188,328.00 was deducted from his salary. The claimant avers that when the defendant discovered that he had a year of service before official retirement and that his retirement benefit will be a very big sum of money. They started maneuverings on how to remove him without benefit; i). His official file was mysteriously removed from his office all the important document and approvals by the Board of Directors including the Approval for in house staff pension fund. (Retirement Benefit) was removed and destroyed. ii). The remuneration history of claimant and even the "Appendix" where the remuneration was stated was also removed from his file. iii). To use the exact words of MR. SAMUEL YUNANA who did the investigation and currently the managing director of the defendant; "This I believe was removed from the file by Saboteurs…………The process helped me to locate your file in internal control department.... I therefore view this act of Head of account as an act of sabotage to the MD (Claimant) and outright negligence of duty" The claimant continues that the defendant computed terminal benefit entitlement and gratuities in the sum of N37, 024,625 (Thirty Seven Million Twenty-Four Thousand Six Hundred and Twenty-Five Naira) on the 12th of March 2010 but refused to pay him. Also the defendant computed another entitlement, terminal benefit and gratuities for the claimant for the sum of N39, 024,625 (Thirty-Nine Million Twenty-Four Thousand Six Hundred and Twenty ¬Five Naira Only) but refused to pay him. That it was after the Claimant has gone to court as the last option because the defendant was threatening to deport him and throw him of out his official residence, that the defendant issued cheques on the 16th of April, 2010 which were not given to him in the sum of N9,557,375 (Nine Million Five Hundred and Fifty-seven Thousand Three Hundred and Seventy-Five Naira Only) and the sum of N7,590,000.00 (Seven Million, Five Hundred and Ninety Thousand Naira Only) as his terminal benefits and for the purchase of his shares (3795) respectively. That his leave was authorized and contained in the contract of employment, he is entitled to business class ticket for himself and wife, business class ticket to Poland. The defendant is liable to pay the sum of N7, 231,215 (Seven Million, Two Hundred and Thirty One Thousand, Two Hundred and Fifteen Naira) which is the contribution the claimant made to the pension scheme. That the claimant is entitled to Directors fees for year 2008 and 2009, also entitled to his gratuity and parting gift. He urged the court to grant his claim. The defendant to counterclaim in reply to the counter claims stated that the Board resolution dated 6th of March, 2010 is not an amendment of the condition of employment of the claimant but a confirmation or ratification of the current and existing conditions of service of claimant. That he is entitled to the sum of 7,231,215.00 (Seven Million Two Hundred and Thirty-One Thousand Two Hundred and Fifteen Naira Only), he contributed to the in house pension scheme. Claimant urged the court to dismiss the Counter-Claim of the defendant with substantial cost. The defendant on the12th of May, 2015 filed its written address wherein it distilled five issues for the court’s determination; i. Whether the claimant is entitled to the reliefs sought. ii. Whether the resolution of the Board of Directors of the Defendant dated the 6th of March 2010 could constitute a valid amendment to the condition of service of the claimant in the absence of an agreement to the full terms of the resolution by the Claimant. iii. Whether in the event of the resolution of the Board of Directors dated the 6th of March, 2010 not constituting agreement the claimant is entitled to the claims being made pursuant to the said resolution. iv. Whether the defendant is entitled to claim all sums of money the Claimant received while in the employment of the Defendant, which said sums of money were obtained without consent authority or approval of the Board of Directors of the company. v. Whether having regard to the reasons for the claimant disengagement from the employment of the defendant is entitled to the declaration that it is entitled including the ones highlighted in issue (iii) above to dismiss the Claimant from its employment having regard to all the circumstances of this case. On issue one, counsel posited that claimant failed to prove that he is entitled to his claims sought. He argued that the claimant's claim is based on: i. The conditions of service - claims 11 (1) (3) (4) (6) (7) (8) (9) and (11) ii. Resolutions passed on the 6th March 2010 - claims (5) iii. Precedent of reference to some other person's benefit. That unaffected by any negative claims which has effect on the claimant being in breach of the condition or terms of his employment the claimant would have if proved, been entitled to a. 3 month salary in lieu of notice - N5,889,998.00 b. Profitability bonus 2008 - N271,000.00 c. Profitability bonus 2009 - N8,789,997.00 d. Profitability bonus payment 2010 (prorated) N3,662,499.00 e. 13th month salary for 2009 N1,953,333.00 However, the claimant did not proffer any credible evidence to prove the items listed in (a) (b)(c) (d) & (e) above. Counsel submitted that there are no facts before the court to show the actual cost of transaction of personal effect to Poland, he did not also show when he was due for vacation, why he did not take his vacation; and what business of the defendant he deployed the time he ought to have gone on vacation. He relied on the case of RILWAN & PARTNERS V SKYE BANK PLC [2015] 1 NWLR, (PT 1441) 437,461-461; and Sections 131and132 of the Evidence Act. Counsel posited that the claimant cannot claim for gratuity and approved parting gift as they are contained by the conditions of service. He also stated that the claims 10 and 11 totaling the sum of N38,159994.00 should be deducted from the total sum of N77,201,367.00 as there is no credible evidence to support the claim. Counsel arguing issue two, three, four and five together submitted that the claimant’s claim which is predominantly based on the defendants Board Resolution of 6th March 2010 was not signed by him and thus did not constitute an agreement as by his action he did not agree to it. He submitted that the basis of its contractual relationship is the contract of employment dated 30th July 1991 and by Article it provides thus; "10. Any amendment to terms of these conditions of service shall be null and void unless given in written form and approved by the Board of Directors and the Managing Directors". Counsel argued that paragraphs 11 to 34 of the statement of defence and counter -claim were not denied as the claimant in most cases relied on the resolution of 6th March, 2010 as a suitable reason. That the resolution of 6th March, 2010 by the Board of Directors of the Defendant did not validly amend the contract of service between the Claimant and Defendant as it was not signed by the Claimant. He stated that no evidence has been adduced to controvert the fact that this head and counter claim has been proved. Counsel urged the court to hold that the defendant counter-claimant is entitled to dismiss the claimant from its employment on the ground that the claimant had repudiated the contract of employment in a manner justifying a dismissal. The defendant is entitled to a monetary claims made against the claimant by way of counter -claim on the ground non denial and admission by the claimant and proof thereof by the counter - claimant. Counsel urged the court to resolve issues (ii) - (v) in favour of the Defendant and dismiss the Claimants claim, and grant the reliefs sought by the Defendant. Counsel submitted that the claim for post judgment interest is statutorily provided in the Rules of Court, Order 21 rule 4 National Industrial Court Rules, 2007 provides. “The court at the time of delivering the judgment or making the order may direct the time within which payment is to be made or other act to be done and may order interest at a rate not less than 10% percent per annum to be paid upon any judgment". Counsel cited the case of IGNOBIS HOTEL LIMITED V SENDEE ELECT LTD [2015] 1 NWLR (PT 1441) 504, 532, where Akomolafe-Wilson stated: “Order 39 rule 7 of High Court Rules of the Federal Capital Territory, Abuja 2004 provides for the award of judgment interest. The provision of the order as quoted above signifies that the court may order or award interest at a rate not exceeding 10% per annum to be paid from the date of the trial court's judgment until the entire judgment is fully paid. Counsel urged the court to award 15% interest as claimed. The claimant on the 7th of October, 2015 filed his written address wherein he distilled four issues for the court’s determination; (1) Whether the Defendant's Board's Resolution of 6th March 2010 (Exhibit SP 16) was an attempt to amend the Claimant's Conditions of Service (Exhibit SP 1) or a ratification of previous/existing policy of the Defendant. (2) Whether the Defendant's in-house Pension Scheme or Staff Retirement Benefit (formerly known as Staff Pension Fund) was authorized by the Defendant's company and in fact existed before the Claimant's appointment or was introduced by him". , I , I (3) Whether the Claimant requires the Defendant's Board's knowledge and approval to execute the powers, policies, programmes and business (objects) of the Defendant. (4) Whether or not the Claimant is (was) entitled to earn any other income/benefit(s)/ allowance(s) outside what is expressly stated in his Conditions of Service. On issue one, counsel submitted that the defendant’s Board of directors resolution of March, 6 2010 (Exhibits SP 16) is not an operative amendment to the Claimant's Conditions of Service (Exhibits SP1), but a ratification to his condition of service. That the document (Exhibit SP 16) is self-evident and self-explanatory and, no other meaning can be imported into it than the plain and ordinary meaning of the words therein which is that it is a ratification/confirmation of previous/existing policy/practice (Claimant's remuneration history) of the Defendant and not an attempt to evaluate, alter or amend the Claimant's Condition of Service as asserted by the Defendant. He urged the court to so hold. On issue two, counsel contended that it is the defendant’s position that the Claimant initiated the Scheme without the knowledge and consent of its “Board of Directors and benefited financially therefrom between 2006 and 2008 contrary to the Conditions of Service (Exhibit SP 1) and is therefore asking the Court to order the Claimant to refund all his earnings therefrom. He stated that the said scheme had been in existence in the company before his appointment and that it was always declared in the Annual Account of the Defendant which was audited and approved by the Board of Directors at the Annual General Meetings. In proof thereof, he tendered Exhibits SP7, SP13 and SP26 which were duly admitted by the Court while the Defendant did not tender any document in rebuttal. That in response to a letter from its auditors (Okpala, Ezeamii & Co.) questioning, the legality of the In-house Pension Fund, the Defendant's Secretary (T.R. Jegede Mrs.) wrote a reply (letter) dated February 24, 2010 (Exhibit SP 13) to the auditors which narrated the history of the Scheme and explained the legality of the Scheme. In paragraph 2 thereof, the Secretary stated explicitly thus: "The In-house Staff Pension Fund started in our company as far back as the seventies……….”Also in paragraph 4 thereof she asserted that: "This was the practice before the present Managing Director (the Claimant) even took over the Management of the company about 19 years .... " He stated that this was further confirmed by the DW1 who is the Chairman of the Board under cross-examination on the 2nd day of June, 2014. In a reply to the question whether the company could still refute knowledge of the existence of the In-house Pension Scheme in the light of Exhibit SP 13, he stated that: "What the Company Secretary said is what happened before the coming into effect of the Pension Fund Act 2004 and even before the Claimant assumed office as MD." Counsel urged the court to so hold that existence of the scheme notwithstanding of the changes in classification at different times preceded the employment of the Claimant On issue three, counsel posited that by Article 1.1 of the Claimant's Condition of Service (Exhibit SP 1) which deals with the obligations of the Managing Director, provides that "The fundamental obligation of the Managing Director shall be responsible and conscientious (wrongly spelt contentious) execution of all the powers and authority given to him by the Board of Directors, the Articles of Association and Memorandum of the company". And in Article 1.2 "The Managing Director shall be obliged to use his best endeavours, to devote the whole time, attention and abilities to promote the interest and business of the company and not to divulge or make known any of the secrets and/or affairs thereof unless compelled to do so by resolution of the Board of Directors by a Court of Law". He submitted that from the above stated the claimant’s powers is derived from three main sources his Conditions of Service (Exhibit SP 1), those issued to him by the Board (which are usually embodied in Board Resolutions) and the Memorandum and Articles of the Company (Exhibit SP 26). And to some extent, the Companies &Allied Matters Act 1990 (as amended).That the Claimant is further mandated by Section 41(1) of the Companies and Allied Matters Act 1990 (as amended), to observe and perform the provisions of the Memorandum and Articles of the Defendant. Specifically the section that provides that: "Subject to the provisions of this Act, the Memorandum and Articles, when registered, shall have the effect of a contract under seal between the company and its members and officers and between the members and officers themselves whereby they agree to observe and perform the provisions of the Memorandum and Articles, as altered from time to time in so far as they relate to the company, members, or officers as such" Thus the combined effect of Art 1.1 of the Claimant's Conditions of Service (Exhibit SP 1) and Section 41(1) of CAMA above is that the Claimant is under an obligation to execute the powers and authority of the company given to him by the Board by way of Resolutions and as indicated out in the Memorandum and Articles of the Defendant. That the Defendant's allegation that he had no approval or authority of the Board to continue the scheme is unsupported and unsubstantiated as it did not tender evidence or refer the Honourable Court to any document/Board Resolution, or provision in his Conditions of Service or Memorandum and Articles of the Company which requires the Claimant to seek the Board's Resolution or approval to carry out his duties as the Managing Director of the Defendant. Counsel urged the court to resolve issue three in its favour. On issue four, counsel submitted that defendant's stated that the Claimant is not entitled to any income, benefits, gratuity and or allowances except what is expressly stated in his Conditions of Service (Exhibit SP1) or any amendment. He stated that though it is not stated anywhere in the Claimant's Conditions of Service (Exhibit SP 1) that he would be entitled to the 13th or 14th month salary, but in the course of his employment the Defendant passed a resolution to pay him those salaries and thus it became part of his remuneration history which disappeared from his official file with the Defendant and which necessitated the Board Resolution (Exhibit SP 16) passed on the 6th of March 2010 to ratify same. That Paragraph (Clause) 20 of the Defendant's Memorandum and Articles (Exhibit SP26) states expressly that the Defendant is empowered/ authorized: “To grant pensions, allowances, gratuities, and bonuses to the officers, ex-officers (including directors and ex-directors), employees or ex-employees of the Company or of any subsidiary allied or associated company or of the predecessors in business of all or any of them or the families, dependents or connections of such persons and to make payments towards insurance and to establish or support or aid in the establishment and support of associations institutions, clubs, funds, trusts and schemes calculated to benefit such persons or otherwise advance the interests of the Company or of its members and to establish and contribute to any scheme for the purchase or subscription by trustees of shares in the Company or to be held by or for the benefit of the Company's employees and to lend money to the company's employees to enable them.” He submitted that this provision brings to rest any argument whether or not the Claimant is entitled to any other benefits outside what is expressly stated in Exhibit SP I, in the absence of any evidence to the contrary, thus the defendant is legally bound to pay by virtue of the above stated provision the Claimant's entitlements in the form of income, allowances, and benefits. Counsel urged the court to so hold. Counsel submitted that his 3months salary in lieu of Notice was not controverted by any evidence by the defendant. That with regards to payment in lieu of unutilized leave Exhibits SP 15 (Internal Memos dated 8/05/2009, 8/10/2009 and 19/03/2010) as well as Articles 9:2 of Exhibit SP 1 which clearly states that "……. the Managing Director has the right to payment of remuneration and all benefits including but not limited to payment of salary and leave Allowance for any unutilized leave period……". That Exhibit SP 1 Articles 3:4 and 3:5 provides for free transportation by air of himself and immediate family. He also stated that Article 3:1 of Exhibit SP 1 as well as Exhibit SP 16. Art 3:1 provides that "The Managing Director shall be entitled to a free air ticket (business class) on expense of the company for himself and his immediate family (wife and children) upon commencement and termination of employment with the company". While under item 3 of Exhibit Sp 16, in paragraph 7 thereof it is provided that " .....when travelling, the Claimant is entitled to a Business Class Ticket for himself and his wife." Counsel submitted that by Exhibit SP10, paragraph reads thus. "Staff that are terminated or resigned or retired have right to withdraw their accumulated deposit from the fund or apply to the Board of Directors for approval to maintain the fund and continue to get yearly "pension". Note that this can only be granted to long serving staff". Counsel stated that paragraph 2 of Exhibit SP 11 captioned updated rules and regulations, of staff retirement benefits fund (former in-house pension fund) states that: "Maximum contribution of the staff shall be limited to one gross salary per year payable once in a year. Upon leaving the company, either by reason of termination or resignation but not on, account of fraud, the balance of the employee's contribution to the fund shall be added to his/her final entitlement". That with regards to Profitability bonuses for 2008, 2009 and 2010 (prorated), Articles 2:4 and 9:2 of Exhibit SP 1 as well as Exhibit SP 16 paragraph 2 of item 3 provides thus Art 2: 4 "As a special incentive the Managing Director shall receive for every year of profitable operation of the company a non-taxable bonus amounting to 25% of his annual salary during the year in which the company has recorded a profit. Art 9:2 " ........the Managing Director has the right to payment of remuneration and all benefits including but not limited to payment of salary and Leave Allowance for any unutilized leave period and pro rata Christmas bonus and bonus to which the Managing Director is entitled for each year of profitable operation of the company in lieu of Notice" He stated that in Exhibit SP 16 the claimant profitability bonus was increased to and includes 25% of his remuneration which includes his annual salary and other entitlements and that the claimant is entitled to his; “Non-taxable profitability bonus (25% of remuneration for every profitable year)". “Non-taxable payment of 13th month salary payable in accordance with the Company's Staff Conditions of Service". Counsel urged the court to grant the claimant's claims. The defendant filed a reply in response to the issues raised by claimant in his final written address wherein it submitted that the claimant in its submission stated that Exhibit SP16 was a ratification of previous/ existing policy of the Defendant and not an amendment to the condition of service but failed to show what the previous policy of the defendant was. Counsel urged the court to so hold. On issues two and three, counsel submitted that the issue is not whether the Company has powers to carry out an In - House Pension Scheme or in fact carried out one but that the claimant was not entitled to make an unauthorized income or any income at all in excess of his terms of employment except same is in writing between him and the Defendant's company. That the Claimant has not shown that he had the authority/ permission to be part of the In-House Pension Interest and lack of authority from the Defendant as well as his non- disclosure of his interest in the In-House Pension interest, the Defendant urged that Issue 2 raised by the Claimant should be determined in favour of the Defendant. On issue four, counsel with respect to the provision of the memorandum and Articles of Association submitted that: (1) Where specific powers have been expressed, it excludes general power. The power to operate a trust, funds etc and to pay gratuity constitute the general powers of the company. Until it has been activated by a resolution or a contract it remains a general power. The specific contract between the defendant and Claimant clearly operates to the exclusion to the general powers enshrined in the memorandum and articles of association of the company. It is submitted that what refers to what was done for and to other employees under his own conditions of service is not applicable to another employee. An agreement is binding only on the parties to it. (2) With respect to SP 16 - the resolution of 6th March 2010 the defendant in reply submits: In the absence of an existing facts or a state of affairs the resolution of 6th March 2010 cannot constitute ratification. It can also not constitute a new agreement, as the requirement that it be agreed to by the parties in writing is absent. (3) With respect to the failure to traverse clearly the statement of claim the defendant in reply submits that the averments in paragraph 37 (a) – (k) are clearly averments in denial of the claim of the claimant. Counsel urged the court to resolve issue (iv) in favour of the Defendant and grants its claims. I have carefully considered the processes filed in this case, documents tendered, the submission of counsel to both parties in support of their respective case, it is in the light of all these that I adopt the issues framed by both parties and narrowed it down to these two issues viz: 1. Whether or not the claimant has proven his claims as per his writ to be so entitled; 2. Whether or not the defendant has proven its claims in its counterclaim. It is germane to state at the outset that the defendant at the commencement of trial of this case, filed a notice of preliminary objection on the 18th January 2013 challenging the jurisdiction of this court, praying for an order striking out paragraphs 14, 15, 16, 17, 18 a (9 & 10) and 18(b) of the claimant’s statement of fact for same not within the competence and jurisdiction of this court. consequently, paragraphs 14, 15, 16, 17 18 (a) (9&10) and 18(b) of the Statement of facts, and reliefs 2 and 3 of the complaint were struck out of the record of this court for lack of jurisdiction. The import of which is that all issues bordering on the dividends of the claimant on the shares acquired will not be addressed in this judgment in view of my ruling on same on 9th October, 2013 which I adopt as part of this judgment. Now, to the main issues before the court, has the claimant proven his claims as to entitle him to same? it is the claimant's contention that he was employed by the defendant as its managing director from 18th of July, 1991 to 6th of March, 2010 a period of eighteen years until he was asked to resign by the Board of Director of the Defendant on the 6th of March, 2010. That while in the course of his employment, he worked assiduously to place the company in its position today. His main grouse is that the defendant has failed or refused to pay him his terminal benefit hence he filed this action for redress. The defendant on the other hand did not deny the fact that it asked the claimant to resign but contends that the claimant while in its employment as the Managing Director perpetrated illegalities which came to the fore through the auditor's report in 2008. That it asked the claimant to resign his employment in view of same. It is also the position of the defendant that it prepared and issued cheques for payment of claimant's entitlements but he failed to accept them. It also posited that the claims of the claimant are not sustained hence it filed a counterclaims. It is the law of common place that in the realm of master/ servant relationship as in this case, the contract of service is the foundation/bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. See the cases of AKINFE V. U.BA. [2007] 10NWLR (PT. 1041) 185; OSISANYA V. AFRIBANK NIG. PLC [2007] 6 NWLR (Pt.1031) 565. Therefore, a master or a servant seeking to determine the contract must of a necessity do so in accordance with the contract of employment which governs the relationship of master servant. SEE MR. S. ANAJA V UNITED BANK FOR AFRICA PLC [2014] 4 ACELR 78; MR MICHAEL OLADIPUPO LOAYINKA V OAK PENSIONS AND ANOR UNREPORTED SUIT NO NICN/ LA/176/2013 DELIVERED ON THE 26TH OF JANUARY, 2016. The implication of which is that the claimant seeking redress before this court would have to proof that he is an employee of the defendant, he is to present before the court the terms of his contract of service and show the court in which way same has been infringed. Amongst the plethora of cases in this regard are these cases UJAM V. I.M.T [2007] 2NWLR (PT. 1019), 470; RAJI V OAU [2014] LPELR 22088. CA; MR MICHAEL OLADIPUPO LOAYINKA V OAK PENSIONS AND ANOR Supra. It is not in contention that the claimant was the managing Director of the defendant and thus an employee of the defendant. Parties are equally in tandem as regards the contract of service which regulates their relationship which is binding on both parties. It is the submission of the claimant's counsel that claimant's contract of employment is governed by three major documents they are Conditions of Service (Exhibit SP 1), those issued to him by the Board (which are usually embodied in Board Resolutions) and the Memorandum and Articles of the Company (Exhibit SP 26). That the claimant by his evidence on record in court has tendered Exhibit SP1, SP 16 (The Board Resolution dated 6th of March, 2010) and Memorandum and Articles of the Company (Exhibit SP 26), which as stated earlier forms part of his contract of employment. According to him the claimant was asked by the board of the defendant to resign as it Managing Director in 2010 having served it for over eighteen years. His main grouse is as regards his terminal benefits which according to him the defendant has withheld. Both parties are also in tandem that the defendant asked the claimant to resign his appointment from the defendant's company. The next pertinent question that requires an answer is, is the claimant entitled to his claims as regards his terminal benefits? The claimant by his pleadings stated that his monthly remuneration is the sum of N1,953,333.00 and this was not controverted by the defendant hence it is deemed admitted as it is the law that uncontroverted/ unchallenged evidence is deemed admitted and same should be believed by the court. It is on this bases that I belief claimant's credible evidence as regards his monthly salary and find that the claimant's salary as at the 6th of March, 2010 when he resigned his appointment from the defendant's company, was N1,953,333.00. Reliefs sought by the claimant as his terminal benefits are as captured above the total of which is N77, 201,367.00 As regards item one i.e. 3 months salary in lieu of notice, it is not in contention that the claimant was asked to resign by the defendant on the 6th of March, 2010. DW1 in his testimony admitted that as Chairman of the board the board approved that the claimant be paid his 3 months salary in lieu of notice and that same was documented. It is thus not in contention that claimant is entitled to 3 months salary in lieu of notice as same was provided for in Article 9.1 and 9.2 of exhibit SP1. DW2 also confirmed that exhibit SP16 represents the board resolution that approved all sums contained therein for the claimant. It is the claimant's position that he is entitled to his 3months salary in lieu of notice in the sum N5,889,998.00 as encapsulated in Article 9 of Exhibit SP1 that is his contract of employment. Article 9 of exhibit SP1 is reproduced hereunder for ease of reference "Should employment of the Managing Director be terminated by the Board of Directors without maintaining the 3 (three) months notice, the Managing Director has the right to payment of remuneration and all benefits including but not limited to payment of salary and leave Allowance for any unutilised leave period and pro rata Christmas bonus and bonus to which the Managing Director is entitled for each year of profitable operation of the company in lieu of notice." It is clear from the above that, this is not a matter for discussion or argument that both parties agreed that the claimant is entitled to 3 months salary in lieu of notice. It is in the light of this that I find and hold that the claimant is entitled to the sum of N5,889,998.00 as 3 months salary in lieu of notice, his appointment having been determined by the defendant. I so hold. On the issue of unutilized leave, it is claimant's claim that he is entitled to payment in lieu of unutilized leave in the sum of N4,883,332.00. The defendant in its defence, denies liability for payment of unauthorized leave as no due particulars are supplied as to his movement within the years as to suggest or confirm that they are spent fully in the employment of the defendant. It is the law that he who asserts must prove the existence of the facts he wants the court to give judgment on. See Section 131 of the Evidence Act 2011. The onus of proving that claimant is entitle to the unutilized leave is on the claimant who asserts same. The claimant in proof of his entitlement to his unutilized leave referred the court to exhibit SP15, i.e. internal memos evincing calculations of claimant's outstanding leave and SP1. It is plain on exhibits SP1 highlighted above that upon termination of claimant's employment by the defendant, he is entitled to ''payment of salary and leave allowance for any unutilized leave period''. This is unequivocal and thus gives the claimant the right to same. Exhibit SP14 and SP15 are internal memos showing the calculation of the claimant's unutilized leave for years 2009 and 2010. It is in the light of exhibits SP1, Article 9.2 and exhibit SP14 and 15 that I find that the claimant is entitled to payment for unutilized leave allowance for 2009 and 2010. I so hold. Claimant is asking for cost of transportation of his personal effects and cost of flight ticket (business class) to Poland. The defendant on the other hand denies liability for payment of transportation to Poland. It is however, clear and unambiguous on the approval of the board of directors made on the 6th March, 2010 that the board of directors of the defendant did in fact approved a business class ticket for the claimant and his wife. Not only that, the contract of employment of the claimant, by its Article 3.1, 3.2 and 3.4 made provisions for free air ticket business class at the expense of the company for the claimant and members of his immediate family upon commencement and termination of his employment by the company. One then wonders why the defendant is denying this claim having executed the contract of service. Defendant cannot at this stage renege from it, because it cannot, for it is bound by that terms. I say so in view of the tenor and content of Article 3.1., 3.2 and 3.4 are captured as follows- "3.1 The Managing Director shall be entitled to a free air ticket (business class) on expense of the company for himself and his immediate family(wife and children) upon commencement and termination of employment with the company. 3.2 The Managing Director once a year shall be equally entitled to a free air travel (business class) en route from and to Lagos on expense of the company for himself and his immediate family when proceeding for annual leave. The travel expenses to be covered by the company shall include but shall not be limited to costs of air ticket, visas, fees of travel bureaus etc. if any 3.4 The Managing Director shall be entitled to free transportation by air of personal effects of himself and of his immediate family to Lagos on commencement of his appointment and from Lagos on its termination up to the maximum limit of 150 kilograms for himself and 100 kilograms for each member of his immediate family or equivalent of such cost" Articles 3.1, 3.2 and 3.4 highlighted above show that claimant is entitled to his reliefs 3 and 4. It is my finding that claimant has proven his claims as regards cost of transportation of his personal effects to and cost of flight ticket (business class) to Poland including his immediate family. I so find and hold. Claimant is praying for the payment of his total contributions to the company's pension fund, which is also known as the In House Pension Fund. It is the claimant's assertion that he contributed to this scheme which existed before he joined the company as the Managing Director. It is in proof of this that he tendered in evidence exhibits SP7, i.e a letter to the Board of directors of the defendant and SP13 which is a reply letter to the external auditors, respectively are letters written by the Company Secretary of the defendant, one T.R Jegede Mrs, who in those two letters stated that the scheme is not an illegality having being in existence since the seventies. It is pertinent to highlight some portions of the letter thus- '' I have carefully studied the company books so far, ( minutes books, resolutions etc) and did not come across any board resolution challenging or questioning the legality or otherwise of this scheme which has been on for about two decades now. There is also nothing in the pension reform Act questioning or prohibiting the existence of any in house retirement benefit scheme adopted by any company as long as it is in order with the company policy.'' '' may I emphasis that the in house pension fund was formulated upon the mutual agreement of staff and the management of the company, that being so I do not see any illegality in the operations of the fund. The staff members and the management are at consensus and committed to the effective coordination of the fund to the benefit of parties involved.'' The company secretary of the defendant by these two exhibits expressed the mind of the defendant as regards the in house pension scheme being a secretary to the board and the agent of the defendant. The in house scheme as stated by the defendant's Company Secretary was a scheme agreed to by the management and the staff and same was for the benefit of all staff. It is illuminating to note that the scheme had existed even before the claimant assumed the position of the Managing Director of the defendant. It then means that it was the pension scheme of the defendant before he even joined the company and this was agreed to by the management of the defendant. It is on record as admitted by DW2, ie. Samuel Yunana who is the current MD of the company and the Company Secretary that they are both beneficiaries of the scheme. The management are obviously the agents of the defendant and the law is long settled that the acts of an agent of a disclosed principal is binding on the principal. It is in the light of this that I find that the in house pension scheme is a pension scheme of the defendant for the benefit of it staff including the claimant. Accordingly, claimant is entitled to his benefits under the in house pension scheme. Next is the claimant's claim for his profitability bonus for 2008, 2009 and 2010 pro rated. The defendant is not denying this, DW1 did in fact admitted that claimant is entitled to it, same having been provided for in his terms of service, i.e exhibit SP1. Article 2, 2.4 to be specific makes provision for payment of annual profitability bonus of 25% of claimant's salary for every profitable year. This is also provided for in exhibit SP16. It is found on record that the defendant by it exhibit SP16 dated 16/3/10 passed a resolution of the board approving payment of the 25% annual profitability bonus to the claimant. It is in accordance with that that I resolve this issue in favour of the claimant and hold that the claimant is entitled to 2008, 2009 and 2010 pro rated 25% profitability bonus. I so hold. Finally, is the claimant's claims for 13th month salary, gratuity and approved partying gift of N3,000,000.00. The defendant by its exhibit SP16 approved the 13th months salary to the claimant. It was also admitted by DW1 that the defendant approved it. This is not thus in contention as facts admitted need no further prove. I consequently find that claimant by exhibit SP16 is entitle to payment for his 2009 13th months salary. It is equally not in question that the claimant is entitled to N3,000,000 parting gift, I say so in view of the defendant's pleadings at paragraph 34 of its statement of defence and counter claim wherein it averred that its board approved the said sum to the claimant. I therefore find that the claimant is entitled to the parting gift of N3,000,000.00. I so find and hold. Claimant is in addition to all the above reliefs, is claiming a gratuity of N35, 159,994.00. Claimant admitted on oath that there is no provision for this in his contract of employment but that one Mr. G.O. Akinsola Finance director of the defendant who retired in 1993 was paid a gratuity. He also tendered exhibit SP24 which is a computation of terminal benefits of one Akintunde Muyiwa which shows that the sum of N170, 250.00 was approved for him as his gratuity. Claimant however, failed to show the court whether or not gratuity was provided for in his terms of service. He did in fact failed to substantiate his claim that gratuity was paid to the two staff he mentioned. It is in that vein that I find that claimant has failed to proof that he is entitled to gratuity. His claim for gratuity thus fails. As regards issue two, which is whether or not the defendant has proven it counter claim to entitle it to same; Defendant is seeking for a declaration that the board resolution dated 6th March, 2010 does not constitute a valid amendment to the claimant's condition of employment. It is the submission of the defendant that the said resolution was not approved by the claimant and thus invalid and should be so declared. It is the claimant's argument on the other hand that as a member of the board present at the same meeting where he also made presentation to the board for the ratification of his entitlements and same was ratified by the defendant's board of Directors, he admits of all that was done at the board meeting. One wonders why the defendant who has argued severally in its pleadings about the excess monies and allowances collected by the claimant, would still go ahead to approve by ratifying the benefits and allowances it did by its board on the 6th March, 2010 to the claimant, the same day it urged the claimant to resign. That in my humbly view is like giving the dog a bad name in order to hang it. In any case, the board resolution of 6th March, 2010 is binding on the defendant and also the claimant who was a member of the board and equally presented the request as approved by the board. The action of the defendant's board of which the claimant was a member suffices as an amendment to his contract of employment especially the remuneration and allowance aspect of exhibit SP1. A cursory look at exhibit SP1, Article 10 states that any amendment to the terms of this conditions of service shall be void unless given in written form and approved by the board of directors and MD. It is thus clear by this article that exhibit SP16 being a resolution of the board of the defendant and the claimant being in attendance as a member of the board and did not raise any objection to the approval of his benefits, I would have been surprised if he did, is in compliance with the provisions of article 10 of exhibit SP1. It is also in my respectful view that the prayer of the defendant on this issue is an afterthought, unmeritorious and an attempt by the defendant to resile from its formal decision which remains binding on it. It is in consequence that I find that the board of resolution of 6th March, 2010 is declared as an amendment to the claimant's contract of employment. I so find and hold. As regards reliefs two and three of the counter claims, I have held supra in this judgment that the claimant is entitled to all his entitlements as provided for in his terms of employment except gratuity which I held otherwise. I have equally decided above in this judgment that claimant did not initiate the in house pension fund as admitted by the company secretary and DW2 who were both beneficiaries. Defendant is not allowed to approbate and reprobate as the law is notorious that a party cannot be allowed to reprobate and approbate. Defendant had on record asked the claimant to resign his appointment which he heeded to. How can the same defendant be asking the court to allow it dismiss the claimant who it has on its own accord urged to resign. That is just an afterthought and thus discountenanced. It is in the light of all stated above that I resolve this issue in favour of the claimant and dismiss this claims. It is the defendant's counter claim for the sum of N22,862,899.00; $238,236.00 and 169,919. Euro which the claimant earned between 2005 and 2010 without the approval of the defendant and contrary to his terms of employment. In proof of these the defendant tendered exhibits SY2 TO SY12 which are all remittances by the defendant to the claimant. It is noteworthy that the DW2 was signatory to all such transfers. DW2 did not deny this and there is no further evidence on the part of the defendant to substantiate its claim that the claimant obtained these monies without the approval of the board. DW2 stated that all monies paid by the defendant has to be verified by the compliance and internal control unit. The import of which is that the claimant did not just pay himself the alleged monies without the approval and verification by the agents of the defendant. It is evident in exhibit SP16 that the board approved monthly expatriate allowances to the claimant both in Euro and dollars in the sum of E4,000.00 and $4,000.00 per month. This is a clear indication that whatever, the claimant obtained from the defendant in foreign currencies were approved by the defendant. The defendant alleged that the claimant received the said illegal sums through one Wale, it failed or refused to call the said Wale to testify in support of its claim, that I must say is fatal to its case. It is consequent upon this that I find that the defendant on the balance of probabilities has failed to proof its counter claims against the claimant. The defendant counter claims are thus dismissed. It is clear from the foregoing that the claimant's claims succeeds in the most parts, while the defendant's counterclaims fail. For the avoidance of doubt I declare and order as follows- 1. That the claimants employment was determined by the defendant on the 6th of March, 2010. 2. That the claimant is entitled to his terminal benefits. 3. That the defendant is to pay the claimant the total sum of N38,104,710.00 as terminal benefits The breakdown of which is (a) N5,859,999.00 as 3 months salary in lieu of notice (b) N3,906,666 as unutilized leave allowance. (c) N771,000 as cost of transportation and flight ticket to Poland. (d) N7,231,215.00 as his contribution to the in house pension (e) N15,382,497.00 as profitability bonus of N2008, 2009 and 2010 pro rated. (f) N1,953,333.00 as 13th month salary for 2009. (g) N3,000,000.00 as an approved parting gift. 4. That the claimant's claim for the sum of N35,159,994.00 is dismissed. 5. That the defendant's counter claims fail. 6. Judgment sums to be paid within 30days of this judgment. I award the cost of N100,000 to the claimant Judgment is entered accordingly. HON. JUSTICE OYEWUMI OYEBIOLA O. JUDGE