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COURT’S JUDGMENT The applicant filed this Originating Summons against the respondent on August 28, 2014 seeking for the following reliefs: (1) A declaration that the termination of appointment of the claimant vides a letter dated 27th May, 2010 and signed by the defendant’s Chairman of the Board of Directors is in violation of Sections 262 and 266 of the Companies and Allied Matters’ Act, 2004; therefore, null void and of no effect whatsoever. (2) An order of this Court reinstating the claimant as the Managing Director of the defendant. (3) An order of this Court commanding the defendant to pay to the claimant all his unpaid salaries and emoluments from 1st June, 2010 up till the date of the judgment or In The Alternative: (i) A declaration that the termination of appointment of the claimant vides a letter dated 27th May, 2010 and signed by the defendant’s Chairman of the Board of Directors is in violation of Sections 262 and 266 of the Companies and Allied Matters’ Act, 2004; therefore, null and void and of no effect whatsoever. (ii) An order of this Court commanding the defendant to pay to the claimant all his unpaid salaries and emoluments from 1st June, 2010 up till the date of the judgment. (iii) Sum of Twenty million Naira (N20, 000,000.00) being damages for wrongful and unlawful termination of employment. In support of the originating summons, the applicant deposed to a 9 paragraphed affidavit and attached two exhibits (A and B) with it. His counsel also filed a written address along with the originating summons and formulated issues for the Court’s determination this way: 1. Whether the purported termination of employment of the claimant by a letter, dated 27th May, 2010 signed by the Chairman, Board of Directors of the defendant is lawful and valid. 2. Whether the claimant is not entitled to reinstatement and payment of all his unpaid salaries and emoluments from the date of the said termination of his employment (i.e. 1st June, 2010) up till date OR in the alternative, Whether the claimant is not entitled to payment of all his unpaid salaries, perquisite of office and emoluments from 1st June, 2010 up till date or to damages for wrongful and unlawful termination of appointment Arguing the first issue, counsel submitted that by virtue of the explicit provisions of Section 262(1) and (2) of the Companies and Allied Matters Act, Cap. C.20 LFN, 2004 (hereinafter to be referred to as CAMA), the appointment of the claimant as the Managing Director of the Defendant (A Company registered under CAMA) cannot be determined without a Special Notice of the Company’s Board Resolution to remove him served on the claimant. That the claimant is entitled to be heard on the resolution to remove him and the failure to comply with the above provisions has rendered the purported removal of the claimant as the Managing Director of the defendant null and void and of no effect whatsoever. Counsel went on that the non-service of the Notice of Meeting where the removal of the claimant was deliberated upon is a flagrant breach of the claimant’s fundamental right to fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) referring to Victino Fixed Odds Ltd v. Ojo & Anor [2010] 4 SCM P.127 at P.136 and Bernard Ojeifo Longe v. First Bank of Nigeria Plc. [2010] 3 SCM Page 85 at 129. Arguing issue two of whether the claimant is not entitled to reinstatement and payment of all his unpaid salaries and emoluments etc. counsel submitted that where there is a wrong there must be a remedy – ubi jus ubi remedium and that where the Court finds in favour of the claimant on issue one, the Court is either to reinstate the claimant as the Managing Director of the defendant and to order payment of his unpaid salaries and other entitlements from 1st June, 2010 paid up till the date of the Judgment; or order the payment of the sum of Twenty Million Naira (N20,000,000.00) as damages for unlawful termination of the claimant’s employment. In opposing this application, the respondent filed a 22 paragraphed counter affidavit deposed to by one Prince Aderemi Ayoade together with a written address filed by its counsel. The counsel framed one issue for determination of the Court in the address thus: Whether the claimant who was employed as the General Manager of the defendant bank could claim protection under Companies and Allied Matter Act (CAMA) that his dismissal was wrongful?” Arguing the said issue, counsel submitted that Longe’s case referred to by the claimant is not applicable to this case because the claimant in the instant case was never appointed a Managing Director of the defendant. He went on that the claimant was not even appointed as a Director of the defendant in the first place neither was any power of the Board of Directors delegated to him to manage the for the company. And so, the claimant cannot be said to be the Managing Director of the defendant, citing WAEC v. Oshienebo [2007] All FWLR (Pt. 370) 1501 at 1512 paras F-H. Counsel went on that by Sections 247-249 of CAMA the only place where the Act empowered the Board to appoint a Director is when it is to fill casual vacancy and which must be approved by the General Assembly at the next annual general meeting or else the person so appointed would cease to be a Director. To him, the employment with the claimant was not one with statutory flavour since he was not appointed the MD of the defendant as stipulated in CAMA, referring to Olakunle Orojo’ book titled: “Company Law and Practice in Nigeria” 3rd edition at page 297. He also citd in support of this arguments the cases of: Oyetoki v. Nig. Postal Service [2010] All FWLR (504) pg 1572 at 1586 paras, F-H; CBN v. Adedeji and Others [2005] All FWLR (Pt244) pg. 912 at 927 paras E; NEPA v. Onah [1997] 1 NWLR (Pt. 484) 680; NNPC v. Olagbaju [2006] All FWLR (Pt. 334) 1855 at 1879 paras. A-C and WAEC v. Osienebo (supra). Counsel further submitted that the employment of the claimant is strictly governed by the common law on master/servant relationship and that the equity of this case was satisfied when the defendant terminated the appointment of the claimant. On receipt of the respondent’s counter affidavit, a counsel to the applicant, by name Morufat Bello filed a 19 paragraphed further affidavit and attached six more exhibits. The applicant’s counsel again filed another written address in support of the further affidavit and formulated two additional issues for Court’s determination as follows: 1. Whether the defendant is not caught by the doctrine of estoppel in denying the claimant’s status as its M.D. contrary to the contents of Exhibits C, D, E and F attached to the further affidavit. 2. Whether technicalities should be allowed to defeat the course of justice rather than substantial justice. Arguing the first issue, counsel submitted that by the content of Exhibits ‘G’ and ’H’ attached to the further affidavit, the Chairman of the defendant’s Board, Professor Olu Aina unequivocally admitted that the claimant was the defendant’s Managing Director by his witness written deposition on oath; citing Zenith Plastic Industry Ltd v. Samotech Ltd. [2008] All FWLR (Pt.427) Page 197 @ 392; Section 75 of the Evidence Act, CAP 112, Laws of the Federation of Nigeria, 1990 also the case of Dalhatu v. A.G.Katsina State & 3ors [2008] All FWLR (Pt. 405) Page 1651 @ 1674, paragraph D-F. He continued that by the contents of Exhibits C, D, E and F attached to the further affidavit; the claimant was consistently referred to as the Managing Director of the defendant in all correspondences and minutes of meetings. Therefore, the defendant is estopped from asserting the contrary, citing Kwara State Polytechnic Ilorin & 4ors v. Oyebanji [2008] All FWLR (Pt.447) Page 141 @ 190-191. Arguing issue two of whether the Court should allow technicalities to prevail rather than doing substantial justice in this case, counsel submitted that technicalities should not be allowed to defeat the course of justice; rather, he enjoined the Court to do substantial justice citing Amaechi v. INEC & Ors [2008] 1 SCM Page 26 @ Pp.83-84. Counsel urged the Court to resolve this case in the claimant’s favour. COURT’S DECISION After going through the facts of this case together with the arguments for and against the reliefs endorsed on this Originating Summons, I am of the considered view that the only issue to resolve here is: Whether this suit was properly commenced before the Court by originating summons, if not, what is the appropriate order in the circumstance? By way of making preliminary points, it is obvious that the applicant came by way of originating summons together with a supporting affidavit and a written address while the respondent filed a counter affidavit and a written address. On receipt of the respondent’s counter affidavit, a counsel to the applicant again filed a 19 paragraphed further affidavit and attached six more exhibits to the further affidavit. Applicant’s counsel again filed another written address in support of the further affidavit and formulated two additional issues for the determination of the Court. By the provision of Order 15 Rule 6 of the NICN (Civil Procedure) Rules, 2017 the applicant in an origination summons proceeding is expected to file a written reply on point(s) of law within seven (7) days of service of receipt of the Respondent’s counter-affidavit (if any) and a Written Address. Therefore, I find and hold that the filing of a 19 paragraphed further affidavit together with a written address in support of the further affidavit and the framing of additional issues for Court’s determination on receipt of the respondent’s counter affidavit; is incongruous and contrary to the provision of Order 15 Rule 6 of the NICN (CP) Rules, 2017. The said further affidavit and written address are accordingly discountenanced in this judgment. Whether this suit was properly commenced before the Court by Originating Summons As shown earlier in this judgment, the applicant filed this originating summons on August 28, 2014 under the old rules of this Court, which was Order 3 Rules 5(A) of the National Industrial Court of Nigeria Practice Direction, 2012. Order 3 Rules 5(A) (1) of the NICN (Practice Direction) was on commencement of cases via originating summons in respect of interpretation of enactment, constitution, agreement or any other written instrument. The Proviso to the provision of Order 5(A) (2) (c) of the NICN Practice Direction, 2012 was to the effect that Originating Summons are not to be used to commence a suit, which will raise substantial dispute of facts. See also Order 3 Rule 3 of the NICN (Civil Procedure) Rules, 2017 for similar provision. In paragraph 7 of the affidavit in support of this Originated Summons, the applicant deposed: 7. That prior to the termination of my appointment, I was never served with any notice of Board’s resolution to remove me or allowed to make representation before I was suddenly removed. Also, in paragraphs 5 to 18 of the counter-affidavit, the respondent deposed: 5. That by Exhibit A the Claimant was not appointed as a managing director of the Defendant. 6. That the plaintiff’s duties included supervising all areas of the bank transactions of the defendants as he has the responsibilities for the day to day control supervision and administration of the defendant. 7. That it was not long after the appointment of the claimant that the bank ran into serious trouble with physical cash disappearing from the vault while some customers’ accounts, including the personal account of the Claimant and his relatives were credited unjustifiably with the Defendant’s money. The external auditor report revealing these fraudulent practices is attached and marked Exhibit KJL1 8. The Board of the defendant queried the claimant and permitted him to make representations. In his written response dated April 13th 2010, the plaintiff unequivocally accepted responsibility for the lapses and confessed that he authorized the transfer involving his own accounts. He tendered an unreserved apology. The letter of admission is hereby attached and marked Exhibit KJL 2 9. That the contents of the said letter show clear admission that the plaintiff has run the bank in a most shoddy and unprofessional way. His incompetence and dishonesty as a supervising officer are legendary to the extent that he claimed nearly sheer ignorance of transactions in his personal account and only vaguely admitted that he must have authorized the transfer to others’ accounts which were vein run by his friends and family members. 10. That the claimant without purity and in breach of duty of care he owned the defendant engaged in those fraudulent practices despite an annual salary and emolument package of over N6,000,000.00 (Six Million Naira) per annum, one of the highest in Nigeria for chief executive officer of microfinance Bank in Nigeria at the relevant time. 11. That the Board of the Defendant later put the Claimant on suspension but the Claimant spied on the desk of the Chairman of the defendant’s Board of Directors and found a draft letter by which his case was to be reported to the Economic and Financial Crimes Commission which he printed. 12. He quickly engaged his counsel and rushed to court to prevent criminal investigation just like the politician would do. The Defendant then counterclaimed for damages for the loss the bank suffered under him. The initial originating processes in the case of with Suit No: HOS/50/2010 containing the draft letter spied and filed by claimant whereby he sued the Economic and Financial Crimes Commission and the defendant among others are herewith attached as Exhibits KJL 3 and 4 13. That while the case went on the Claimant was placed on half salary which he was collecting without doing any work. The Defendants board later decided to terminate his appointment. 14. That on 29th of January 2013, when he observed that the desire to prosecute him appeared to have been cooled down by distraction of litigation, the claimant counsel in the person of Opeyemi Akinpelu (Mrs.) informed the court in the open court that has been instructed to withdraw the suit and the court struck out their case remaining the defendant’s counterclaim. The suit (counter-claim) is still pending at the Osogbo High Court, though the Claimant withdrew his claims after he thought he had escaped the initial danger of being arrested and investigated. 15. That the claimant had since then been free. He has been managing a flourishing private school in Osogbo called “Tiny-Tots” which he established while working with the Defendant. In fact, he travelled abroad for several months which resulted in a long adjournment in the pending suit in late 2013. 16. That apart from exposing the Defendant, whose existence he had endangered, to greater losses through litigation, the Claimant has not worked for the Defendant since he was put on suspension in June 2010, over four years ago. 17. That the claimant brought this suit in order to intimidate the defendant in order to force the defendant to abandon the counter-claim for negligence against him in the pending suit before the High Court of Osun State 18. That the claimant orchestrated the events that forced the defendant to relief him of his post and still wants this court to order him to be paid for work not done for the several years he had left office. From the endorsement on the Originating Summons and the depositions in the affidavit in support of the originating summons in the instant suit, the case of the applicant is not merely on matters relating principally to the interpretation of any constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations (which is the provision of sections 262 and 266 of the Companies and Allied Matters Act, 2004 here) simpliciter. Rather, it is one on violation of the provision of sections 262 and 266 of the Companies and Allied Matters Act, 2004; to determine the legality of the determination of his employment by the respondent, for his re-instatement as the MD of the respondent and for payment of his accumulated salaries, which raises substantial disputes of facts etc. In order words, the applicant’s case is not on the interpretation of law but on the determination of his right in relation to the Sections 262 and 266 of the CAMA, 2004. Furthermore, from the depositions in the affidavit evidence reproduced above, this matter raised substantial disputes of facts between the parties; hence the applicant ought not to have initiated the suit by Originating Summons as stated in Order 5(A) (2) (c) of the NICN Practice Direction, 2012 and Order 3 Rule 17 (1) (c) of the NICN (Civil Procedure) Rules, 2017. See also the case of Ikpeazu v. Ekeagbara & Ors [2016] LPELR-40847(CA) for judicial confirmation this principle on similar provision. Therefore, because the applicant filed this Originating Summons in contravention of the Rules of Court and case law principle on the issue, I find and hold that this suit is not just for the interpretation of sections 262 and 266 of the CAMA, 2004 as they relate to the employment of the applicant, but it is on the legality and otherwise of the determination of the applicant’s employment with the defendant. In addition, I find and hold that the depositions in the affidavit in support and in counter of this originating summons contain substantial disputes of facts; which can only be properly determined by Complaint in line with the provisions of the proviso to Order 5(A) (2) (c) of the NICN Practice Direction, 2012 and Order 3 Rules 17 (1) (c) of the NICN (Civil Procedure) Rules, 2017. I consequently hold that this case was wrongly initiated in this Court by originating summons. Order 3 Rules 17 (2) of the NICN (Civil Procedure) Rules, 2017 provides that: ‘Where in the opinion of the Court, a suit commenced by Originating summons raises substantial issues and dispute of facts, the Court shall not strike out the matter, but may order its conversion to Complaint and direct the parties to file and exchange pleadings and conduct the trial of the case in accordance with the Rules of the Court governing trial’. This provision of the NICN Rules are very clear and in the circumstance, I hereby order the conversion of this suit from ‘Originating Summons’ to Complaint and I, accordingly, direct counsel to the applicant and the respondent to file and to exchange their pleadings in this Court so as to enable the Court conduct the trial of the case in compliance with the Rules of this Court. Judgment is entered accordingly. I make no order as to cost. Hon. Justice F. I. Kola-Olalere Presiding Judge