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<p class="MsoNormal" style="margin-bottom: 0.0001pt;"><u><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">REPRESENTATION</span></u><span style="font-size:12.5pt;font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">O.O. Aribaba for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Oluwatoba Oyebowale with O. Lato for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="margin-bottom: 0.0001pt; text-align: center;"><u><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">JUDGMENT<o:p></o:p></span></u></p> <p class="MsoNormal" align="center" style="margin-bottom: 0.0001pt; text-align: center;"><u><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></u></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">This suit was commenced by a <i>General Form of Complaint </i>dated 11/9/13 and a Statement of Facts of the same date. The Claimant later amended his Statement of Facts amended same on 9/12/14 and sought the following reliefs - <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. A declaration that by the decision of the Emergency Board of Directors meeting of 11/4/13 the Claimant had already been relieved of his employment as the Managing Director of the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. A declaration that the Defendant’s letter of dismissal dated 14/8/13 is wrongful, ineffective, unlawful null and void. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. =N=1,000,000.00 (One Million Naira) being unpaid salary for the month of April, 2013. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. =N=3,000,000.00 (Three Million Naira) being three months’ salary payment in lieu of Notice of termination of appointment. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. =N=20,000,000.00 (Twenty Million Naira) as compensation for the unlawful manner in which the Claimant was removed from office. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. Cost of this Action.<o:p></o:p></span></p> <p class="MsoListParagraph" style="margin: 0in 0in 0.0001pt 1in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The processes filed by the Claimant included statement of facts, witness statement on oath as well as copies of documents to be relied on at trial. By its amended statement of defence and counter claim dated 19/8/15, the Defendant counter claimed as follows -<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. A declaration that the act of the Defendant to Counter Claim by setting up a company named <i>Citigrade Technologies Ltd</i> which does the same business as the Defendant/Counter Claimant and poaching its clients constitutes a breach of his contract of employment dated 11/5/10. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. The sum of 5,000.000.00 for damages for the various breaches of the term of contract of employment dated 11/5/10. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. The sum of =N=98,785,950.00 (Ninety Eight Million, Seven Hundred and Eighty Five Thousand, Nine Hundred and Fifty Naira) being the financial loss and damage suffered by the Defendant/Counter Claimant by the reason of the Defendant to Counter Claim’s breach of his contract of employment dated 11/5/10. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Interest on the said sum of =N=98,785,950.00 (Ninety Eight Million, Seven Hundred and Eighty Five Thousand, Nine Hundred and Fifty Naira) at the rate of 22% per annum from 14/7/13 until judgment in this suit is delivered and thereafter at 10% per annum from the date of judgment until the judgment sum is finally liquidated. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. The cost of this suit.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Claimant did file a Defence to the Defendant’s Counter Claim dated 14<sup>th</sup> July, 2014.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The hearing of this case commenced on 14/9/15 when the Claimant testified as <i>CW1. </i>Claimant adopted his written witness statement on oath dated 9/12/14 as his evidence in chief and tendered 5 documents which were admitted and marked as <i>EXh. TO1-Exh. TO5.</i> Claimant then prayed the Court to enter Judgment in his favour. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The case for the Claimant as seeing from the pleadings filed is that he was the pioneer Managing Director of the Defendant which commenced operations sometimes in 2008; that he dedicated all his energy and talent into building the Company within a short space of time into a market leader in the chosen area of business of the Company; that at a Board of Directors meeting held on 11/4/13, a resolution was passed that the management of the Defendant be immediately taken over by the Management of <i>JKK Plc </i>which in effect dissolves the management of the Defendant in which the Chairman is the Managing Director; that after the meeting the Defendant wrote a letter dated 9/7/13 in which it referred to the exit of the Claimant as Managing Director of the Defendant and made severance offers to the Claimant; that the Claimant made a counter proposal through his Solicitors but that the Defendant did not reply till Claimant was served with the purported notice of dismissal dated 14/8/13 and that the Claimant contends that as of the date of the letter of dismissal was issued he was no longer in the employment of the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Under cross examination <i>CW1 </i>testified that he was formerly an employee of <i>J.K.K. Ltd</i> the parent Company of the Defendant; that his employment with <i>JKK Ltd</i> was not terminated; that he worked only up to 9<sup>th</sup> or 10<sup>th</sup> of May, 2013; that he did not respond to the query issued by Defendant because it was signed by Human Resources Manager who was not his employer; that the Board meeting of 11/4/13 terminated his appointment; that he did not attend the Board meeting of Defendant on 15/4/13; that while in the employment of the Defendant he did not set up any company and that after his employment was terminated he did not set up any Company in competition with the Defendant. <b>In re-examination </b>the witness stated that he was not in breach of his contract of employment with the Defendant; that he does nothave the original of MOU referred to in paragraph 22 (g) of his deposition on Oath before this court and that the official vehicle of the Defendant is still in his possession.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Defendant opened its defence on 28/10/15 when it called as its <i>DW1. </i>Witness adopted his written witness deposition dated 19/8/15 as his evidence in chief and tendered 8 documents which were admitted as exhibits and marked as <i>Exh.D1 - Exh. D8. </i>Witness urged the Court to dismiss the case of the Claimant and grant the counter claims of the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The case for the Defendant is that the Claimant was a former employee of the Defendant; that by a Board resolution of the Defendant dated the 11/4/13 it was resolved that the Management of the Defendant be subsumed into the Management of <i>JKK Nigeria Limited </i>which is the parent company of the Defendant; that the purpose of the said resolution was to combine the resources and Management of the two Companies together and it is a process that does not in any way immediately dissolve the management of the Defendant as suggested by the Claimant; that it was shortly after this the Claimant stopped reporting for duty and this is aside the fact that the Claimant had registered a company named Citigrade Technologies Ltd which is into the same business as the Defendant and had gone ahead to poach some of the Defendant’s clients; that it was consequent upon this the Defendant issued a query dated 12/8/13 against the Claimant for him to explain these acts of betrayal and disloyalty to the Defendant; that the Claimant failed to respond to the said query and he was subsequently dismissed from the employment of the Defendant vide letter dated 14/8/13.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Under cross examination the <i>DW1 </i>testified that he worked with <i>Joint Computer Company Plc </i>the parent company of the Defendant; that after the Board resolution, the Management of <i>JKK Plc</i>. did not immediately take over the management of Defendant; that he does know if the Managing Director of Defendant was a signatory to the account of Defendant after the meeting of 11/4/13; that he is sure that Computer Based Testing is part of the objectives of the Defendant; that he is aware that the Defendant was established for Computer Based Electronic Testing; that <i>Citigrade Technologies Ltd </i>was set up in May 2014; that there is no particular trade secret sought to be protected; that as at 2012 Claimant was the Managing Director of the Defendant; that as at that time he worked with the parent Company and occupied the same building with the Defendant; that the sums stated in paragraph 28(i) & (ii) of his Oath is not the profit due to the Defendant; that invoices are sent as soon as examinations were concluded for record purposes; that the invoices were sent to the schools stated; that Mr. Lekan Yusuf is the Managing Director of <i>JKK; </i>that after Claimant left Defendant there has been no other Managing Director and since the meeting of 11/4/13 and that the position of Managing Director of Defendant was no longer available since the meeting of 11/4/13.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">At the close hearing learned Counsel on either side were directed to file their final written addresses in accordance with the rules of Court. The final written address of the Defendant was filed on 30/11/15. In it Counsel set down the following issues for the determination of this case -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Can it be rightly held that the appointment of the Claimant had been terminated by the Defendant’s Emergency Board of Directors’ meeting dated 11<sup>th</sup> April, 2013 and if not; whether the Claimant’s contract of employment was lawfully terminated by the Defendant vide letter of dismissal dated 14<sup>th</sup> August, 2013. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the Claimant is entitled to the sums of =N=1,000,000.00, =N=3,000,000.00 and =N=20,000,000.00 being claimed respectively as unpaid salary, three months’ salary in lieu of notice and compensation for alleged unlawful removal from office.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Having regards to the facts of this case and the totality of evidence before this Honourable Court, whether the Defendant/Counterclaimant is entitled to the reliefs sought as per its Counterclaim against the Claimant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Arguing issue 1, learned stated that the basis of the Claimant's reliefs are the misrepresented facts as contained in the Claimant's pleadings to the effect that the resolution passed at the meeting of the Board of the Defendant dated 11/4/13 terminated his appointment. Counsel argued that on the contrary the Board of the Defendant merely resolved to absorb the Defendant into the parent Company which is <i>JKK Plc </i>and further resolve to subsume the Management of the Defendant into the Management of <i>JKK Plc </i>. Counsel argued that the purpose of the said resolution was for proper monitoring and accountability of the employees attached to the Defendant, to combine the resources and management of the <i>JKK Plc </i>with that of the Defendant and that it did not in any way dissolve the management of the Defendant as the Claimant made the Court to believe. Learned Counsel referred to <i>Exh. C2 </i>and further argued that the resolution did not show that the appointment of the Claimant was terminated. Counsel submitted that it is a cardinal principle of construction of documents that the parties are presumed to intend what they in fact stated in their documents citing <i>Agbareh v. Mimra (2008)2 NWLR (Pt. 1071) 378 at 414-415.</i> Counsel argued further that there is nowhere in all the exhibits tendered by the Claimant where it was stated that his contract of employment has been terminated or where the inference could be drawn. On the other hand Counsel submitted that the appointment of the Claimant was determined on grounds of misconduct referring to <i>Exh. D5 & Exh. D8</i> and that there was also evidence of the <i>DW1 </i>to the effect that Claimant was absent from work without the permission of the Defendant. Counsel submitted that the testimonies of the Claimant are contradictory and unreliable. He urged the Court to reject same.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 2, Counsel adopted his submission respecting issue 1. He further argued that in a master/servant relationship, there is power inherent in the employer to discipline any of its staff for misconduct; that the circumstances leading to the dismissal of the Claimant for gross misconduct have been stated; that Claimant breached Clauses 15 & 16 of <i>Exh. TO1</i> and that the Defendant was entitled to dismiss him as it did referring to <i>Jirgbagh v. U.B.N (2001)2 NWLR (Pt. 696) 11 at 27, Ajayi v. Texaco Nigeria Limited (1987)3 NWLR (Pt. 62) 577 & Ante v. University of Calabar (2001)3 NWLR (Pt. 700) 239 at 258.</i> Counsel urged the Court to resolve this issue in favour of the Defendant and against the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting issue 3 Counsel argued that a contract is an agreement between two or more parties, citing <i>Metibaiye v. Naralli International Limited (2009)16 NWLR (Pt. 1167) 326 at 346, </i>that parties are bound by their written contract, citing <i>Ezekiel v. W.M.D.N.L (2000)9 NWLR (Pt. 672) 248 at 256 </i>and that the Claimant breached the said contract with the Defendant. Counsel prayed the Court to enter Judgment for the Defendant in terms of its counter claims.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The final written address of the Claimant was filed on 14/3/16. The following three issues were set down for determination in it -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the Claimant’s contract of employment was not terminated by reason of the defendant’s emergency Board Meeting held on 11<sup>th</sup> April, 2013?. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. If issue (1) above is resolved in the affirmative, whether the defendants letter of dismissal dated 14<sup>th</sup> August, 2013 is not null and void same being ultra vires?. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether Defendant/Counterclaimant has proved its entitlement to the reliefs sought by it in the counterclaim?. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Counsel argued issues 1 and 2 together. Counsel argued that the contract between the Claimant and the Defendant was governed by <i>Exh. T01</i>; that by the combined reading of <i>Exh. TO2 </i>(same as Exh. D2) and <i>Exh. TO3</i> the appointment of the Claimant was constructively dismissed and that by Clause 12 of <i>Exh. TO1</i> the Claimant is entitled to 3 months salary in lieu of notice. Counsel urged the Court to so hold. Citing <i>Ihezukwu v. University of Jos (1983)1 SCNLR 73, Western Nigeria Development Corporation v. Abimbola (1966) All NLR 159 & Evans Bros (Nig.) Publishing Limited v. Falaiye (2003)13 NWLR (Pt. 838) 564 </i>learned Counsel to resolve issues 1 and 2 in favour of the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On issue 3, learned Counsel argued that by Section 131, <i>Evidence Act, 2011, </i>the Defendant must prove its counter claim; that there is no evidence before the Court to indicate the date <i>Citigrade Technologies Limited </i>was incorporated whether while the Claimant was in the employment of the Defendant or after he had left its employment and that in any event there is no breach of any covenant by the Claimant of the contract between the parties. Learned thus prayed the Court to find in favour of the Claimant and dismiss the counter claims as sought by the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On 22/4/16, the Defendant filed a 7-page process titled <i>Defendant's Reply on Points of Law to the Claimant's Final Written Address dated 14th March, 2016.</i> I read and understood the said process. However, I found that the process did not contain what it set out to contain. Neither has it achieved what it was meant to achieve. The content of the process is nothing short of re-argument of the issues already canvassed by the Defendant. That is not the purpose and purport of a reply address. I find nothing of much value in it within the context of a Reply Address to warrant inclusion in this Judgment. I therefore discountenance same.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">This Judgment was adjourned to 8/9/16 for delivery. As at the date of its adjournment, the date for the commencement of annual vacation of Hon. Judges of this Court had not been fixed. Subsequently however and upon fixing the date for the commencement of annual vacation, the Hon President of this Court directed that Judgments must not be fixed to fall within the period of vacation. In order therefore to ensure that this Judgment is not caught by the 90 days rule for delivery of Judgment from the date of adoption of final written addresses, I directed that hearing notices be issued and served on learned Counsel on either side for this Judgment to be delivered today.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">I read all the processes filed by learned Counsel on either side. I also heard and understood all the oral argument canvassed by Counsel. In addition I reviewed and evaluated all the evidence tendered and admitted in this case as well as listened attentively to the witnesses call at trial. Having done all this, I have to narrow the issues for the just and effective determination of this case to be mainly these -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the appointment of the Claimant has been terminated as at 11/4/13.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether, if the answer to issue 1 is in the affirmative, the Claimant is entitled to any or all the reliefs sought.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the Defendant is entitled to any or all the counter claims sought.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Respecting issue 1, the law is relatively settled that employment relationship is both a voluntary and contractual one. There is right to free entrance and free exit by either side. Either side may bring same to an end subject to the provision for so doing in the contract binding the parties respecting giving of requisite notice or payment lieu of same. While an employee may resign his appointment, an employer may also bring the relationship to an end by terminating same or by out-rightly dismissing the employee from its services. In either of these scenarios, all that is required is giving requisite notice under the contract or payment of salary in lieu of n<b>otice</b>. </span><span lang="EN-GB" style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman";color:#000099;mso-ansi-language:EN-GB; mso-fareast-language:EN-GB">See<i> Kwara SState Poly v. Saliu 41 WRN 26; Osumah v. Edo Broadcasting Service (2005) ALL FWLR (Pt. 253) 775, Oloruntoba Oju v. Abdulraheem (2009) WRN 1; Olaniyan v. University of Lagos (2004) 15 WRN 44.</i></span><span lang="EN-GB" style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-ansi-language:EN-GB;mso-fareast-language:EN-GB"> <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> There are however situations where an employment is deemed brought to end by the conduct of the other party to the contract. Section 11(5), <i>Labour Act, Laws of the Federation of Nigeria </i>deals with such situations. The section provides -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''Nothing in this section affects any right of either party to a contract to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him so to treat it before the making of this Act''.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Thus where the conduct of a party to employment relationship is such that the other party has no choice than to treat the contract as terminated such termination is often referred to a constructive termination/dismissal. The Claimant in this case has contended that the contract was constructively terminated by the Defendant. The Defendant argued otherwise. Now is the circumstance of this case capable of being treated as constructive dismissal of the Claimant from his employment? The facts of this case upon which there is unanimity among parties are that the Claimant was formerly the Managing Director of the Defendant; that the Defendant is a subsidiary of <i>JKK Limited; </i>that the management of both companies met on 10/4/13 and resolved among other things that the managements of both companies would be fused/merged; that following from this, a letter dated 9/5/13 <i>Exh. TO3 </i>was written to the Claimant containing the following -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''On the 11th of April the Board of Directors of Electronic Test Company Limited (eTC) voted for the absorption of the activities of the company into that of JKK Nigeria Limited. This was to ratify the decision of JKK, the majority shareholders of eTCto(sic) combine activities of the subsidiarywith(sic)with the parent company. It was also decided that the management of eTC be merged with that of JKK to reduce running cost for the group.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> In line with this, your position as Managing Director of eTC is no longer available, In the light of the development, we wish to give you two options:<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> 1. Be a member of JKK Management team as Head Marketing<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> 2. Resignation of appointment.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> Your response will enable us decide on the next step to be taken by the company. We will appreciate your quick response''.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">That letter was written for Electronic Test Co. Limited and signed by one Tunde Yusuf as Chairman.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On evaluation I find that as at 11/4/13 when the Board of eTC met and ratified the decision of JKK, the position of Managing Director of eTC had ceased to exist and that the Claimant's employment as Managing Director of eTC had been terminated. Secondly, the tone of <i>Exh. TO3 </i>and my understanding of same is that whether the Claimant liked it or not he was no longer the Managing Director of eTC and that he had one of two difficult options viz to accept a lesser position of Head Marketing or resign his appointment. It is important to note and I so hold that as the date of the emergency Board Meeting of eTC, the Claimant's employment had been constructively terminated. He was no longer a staff of the Defendant; the employer/employee relationship between the parties had come to an end and hence there was no basis for <i>Exh. TO3. </i>What was left between the parties was post employment rights from one to the other such as payment of salary in lieu of notice, outstanding benefits, allowances, gratuity, pensions (if any) and return of company property from to the other. All that was left of that contract of employment was for the parties to comply with whatever post employment rights as may be contained in the contract of service between the parties. I therefore answer issue 1 in the affirmative. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On issue 2, having answered issue 1 in the affirmative, it remains to determine if the Claimant is entitled to any or all the reliefs sought.. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The first relief sought is for a declaration that by the decision of the Emergency Board of Directors meeting of 11<sup>th</sup> April, 2013 the Claimant had already been relieved of his employment as the Managing Director of the Defendant. In view of the resolution of issue 1 above I grant the first relief. I therefore declare that by the decision of the Emergency Board of Directors meeting of 11/4/13 the Claimant had already been relieved of his employment as the Managing Director of the Defendant. The second relief is for a declaration that the Defendant’s letter of dismissal dated 14/8/13 is wrongful, ineffective, unlawful null and void. This Court has held in this Judgment that by the emergency Board of Directors Meeting of the Defendant on 11/4/13, the Claimant had ceased to be an employee of the Defendant having been constructively relieved of appointment as Managing Director of the Defendant. In the absence of any employment relationship between the Claimant and the Defendant as at 11/4/13, the Defendant ceased to have any disciplinary control over the Claimant. As at that date the Defendant had no power to issue query, warning, termination or dismissal letter against the Claimant. Thus the letter of dismissal, <i>Exh. TO5,</i> issued by the Defendant dated 14<sup>th</sup> August, 2013 is wrongful, ineffective, unlawful, null and void and I so find and hold. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Thirdly, Claimant sought payment of One Million (=N=1,000,000.00) being unpaid salary for the month of April, 2013. By <i>Exh. TO1, </i>the annual salary of the Claimant was Twelve Million Naira per annum. However the evidence I have before me does not show that the Claimant worked with the Defendant till the end of April 2013. I have found and held in this Judgment that the employment of the Claimant was constructively terminated on 11/4/13 by the emergency Board of Directors Meeting of the Defendant as shown by <i>Exh. TO2.</i> I find no basis to grant this prayer as sought by the Claimant. same is therefore refused and dismissed for lack of proof by credible and cogent evidence. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Claimant equally sought payment of three months' salary being payment in lieu of Notice of termination of appointment. <i>Exh. TO1 </i>is the appointment letter issued to the Claimant. Clause 12 of same states that -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''This employment contract may be terminated upon either party giving three months notice of the terminating party's intention to terminate the contract''.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The requisite three months notice under the contract was not given to the Claimant as provided in <i>Exh. TO1.</i> Not having given the notice as provided, the Claimant is entitled to be paid three months salary in lieu of the said notice. I have held in this Judgment that by <i>Exh. TO1, </i>the annual salary of the Claimant is =N=12,000,000.00. This translates to =N=1,000,000.00 per month. The Defendant is here directed to pay to the Claimant the sum of =N=3,000,000.00 being the three months salary in lieu of notice of termination as provided under Clause 12 of <i>Exh. TO1.</i><o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Respecting the claim for Twenty Million Naira (=N=20,000,000.00) as compensation for the unlawful manner in which the Claimant was removed from office, this Court has held and has also so declared that the termination of the employment of the Claimant by the Defendant was wrongful. The law is trite that the measure of damages in an action for wrongful termination of employment is payment for the length of notice required for the employment to be lawfully te<b>rminated. </b>This Court has ordered payment to the Claimant in lieu of notice not given to him. To therefore make an order for payment of compensation in circumstances of this case has no basis or support in law. The claim for compensation is refused and dismissed.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The third issue for determination is whether the Defendant is entitled to any or all the counter claims sought. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The first counter claim is a declaration that the act of the Defendant to Counter Claim by setting up a company named <i>Citigrade Technologies Ltd</i> which does the same business as the Defendant/Counter Claimant and poaching its clients constitutes a breach of his contract of employment dated 11/5/10. Now the basis for this head of counter claim is <i>Exh. D5 </i>being the Articles of Association of <i>Citigrade Technologies Ltd. </i>That document showed that the Claimant was a shareholder in the said Company. The document was dated 6/5/13. It is instructive to point out that as at the date of that document 6/5/13, the Claimant was no longer a staff of the Defendant his appointment having been terminated on 11/4/13. Besides, I perused the said Articles of Association and found that the major business of the Company was information and communication technology (ICT) as opposed to the electronic or computer based test of the Defendant. I also do not find any evidence of poaching of the clients of the Defendant by the Claimant as alleged by the Defendant. Indeed <i>Exh. D4</i> was a mere draft document. It was never executed by either the Defendant or the <i>Ahmadu Bello University, Zaria. </i>The Memorandum of Understanding between the Defendant and the Kaduna Polytechnic, Kaduna - <i>Exh.D3 </i>proved nothing other than what it says it - a Memorandum of Understanding. It contains nothing in support of the counter claim of the Defendant. The head of counter claim was not proved. I dismiss same accordingly.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The second head of counter claim is the sum of Five Million Naira (=N=5,000.000.00) as damages for the various breaches of the term of contract of employment dated 11<sup>th</sup> of May, 2010. In this Judgment this Court has held that the Defendant y its conduct terminated the appointment of the Claimant. That holding was predicated on the fat that there was breach of the contract of employment committed by the Claimant. There is no reason for the Court to resile from that position. Therefore this claim for damages is refused and dismissed there being no basis or proof upon which same may be granted. having so found and held, the claim for the sum of Ninety Eight Million, Seven Hundred and Eighty Five Thousand, Nine Hundred and Fifty Naira (=N=98,785,950.00) being the financial loss and damage suffered by the Defendant/Counter Claimant by the reason of the Defendant to Counter Claim’s breach of his contract of employment dated 11/5/10 as well as claim for interest on the said sum is refused and dismissed for lack of proof. Respecting application for cost, all the counter claims of the Defendant having failed and dismissed, the claim for cost must equally fail. It is therefore refused and dismissed.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment,<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. I declare that by the decision of the Emergency Board of Directors meeting of 11/4/13 the Claimant had already been relieved of his employment as the Managing Director of the Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. I declare that the letter of dismissal, <i>Exh. TO5,</i> issued by the Defendant dated 14/8/13 is wrongful, ineffective, unlawful, null and void.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. A prayer for the payment of the sum of One Million Naira (=N=1,000,000.00) being unpaid salary for the month of April, 2013 is refused and dismissed for lack of proof.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. The Defendant is here ordered to pay to the Claimant the sum of =N=3,000,000.00 being the three months salary in lieu of notice of termination as provided under Clause 12 of <i>Exh. TO1.</i><o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5/ The claim for Twenty Million Naira (=N=20,000,000.00) as compensation for the unlawful manner in which the Claimant was removed from office is refused and dismissed.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. All the counter claims of the Defendant are dismissed for lack of proof by cogent, credible and admissible evidence.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">7. The sum of One Hundred Thousand Naira (=N=100,000.00) is awarded as cost payable by the Defendant to the Claimant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">All the terms of this Judgment are to be complied with within 30 days from today.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif"">____________________<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin: 0in 0in 0.0001pt; text-align: center;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Hon. Justice J. D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom: 0.0001pt; text-align: center;"><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">Presiding Judge<o:p></o:p></span></p> <p class="MsoNormal"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p>