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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: FEBRUARY 2, 2015 SUIT NO. NIC/LA/246/2011 BETWEEN Mr. Ugochukwu Duru - Claimant AND First Guarantee Pension Ltd - Defendant REPRESENTATION O. Idemudia, with are, A. Ajagbe and Miss Valentine Egboh, for the claimant. O. K. Salawu, with are Audu Augustine, Tolu Agbona, Miss Folakemi Praise and Mrs. Dupe Omo-Ekpadi, for the defendant. JUDGMENT The claimant by a complaint dated and filed on 29th December 2011 instituted the present suit against the defendant. The complaint was accompanied by statement of facts, list of witnesses and documents to be relied upon. By the complaint and statement of facts, the claimant is seeking the following reliefs from this Court – 1. A declaration that the purported removal of the claimant vide a letter of dismissal dated the 15th of December 2011 is illegal, null and void and of no effect whatsoever. 2. An order of perpetual injunction restraining the defendant whether by themselves, agents, privies. 3. An order of Court reinstating the claimants to his position as a Senior Manager, Investment and Treasury in the Defendant. 4. An order directing the payment of all the claimant’s entitlements to date. The defendant upon grant of extension of time on 14th March 2012 filed its statement of defence and counterclaim. Upon the leave granted by the Court, the defendant amended its statement of defence and counterclaim. The amended statement of defence and counterclaim was accompanied by documents to be relied upon, all of which were filed and served on the claimant and to which the claimant filed a reply and defence to the defendant’s counterclaim. The defendant in its amended statement of defence/counterclaim is praying for the following reliefs – a) An order of this Honourable Court compelling the claimant/defendant to the counterclaim to return in good condition and immediately to the counterclaimant the following company’s property in the claimant/defendant’s possession to the counterclaimant’s possession – i) Car and keys of the defendants. ii) Blackberry and Simcard. iii) Identification Card. iv) Health Partners medical cards for the claimant/defendant to counterclaim and his family. v) All the counterclaimant’s documents in possession of the claimant/defendant to counterclaim. b) An order of perpetual injunction restraining the claimant/defendant to the counterclaim from parading/representing himself as an officer of the counterclaimant. There is a sister case, Suit No. NICN/LA/247/11 between Mrs. Joan Mbachu v. First Guaranty Pension Ltd pending before this Court, the state of the pleadings and the reliefs of which are in pari material with the reliefs in the present suit. In the proceedings of 15/5/14, this Court directed that the judgment/orders made in the present suit, on the application of counsel to the parties, shall abide Suit No. NICN/LA/247/11 inexorably making it inexpedient to proceed to trial in the said suit. The present suit proceeded to trial and the claimant testified for himself as CW while the defendant’s sole witness (DW) was Mrs. Funke Oluwo, the Acting Company Secretary/Legal Adviser to the defendant. At the close of trial, parties were asked to file and serve their respective written address starting with the defendant as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This they did. The defendant’s written address is dated 14th February 2014 but filed on 18th March 2014, while that of the claimant is dated 23rd September 2014 but filed on 24th September 2014. The defendant did not file any reply on points of law. THE CLAIMANT’S CASE The case of the claimant is that he, as an officer of the defendant company, was a Senior Manager and Head of the Treasury and Investment Department with the defendant company before his alleged dismissal vide a letter of dismissal signed by one Chima Akalezi, an appointee of PENCOM purporting to be the Acting Managing Director/Chief Executive Officer of the defendant and, therefore, acting on behalf of the defendant despite the various orders of Courts to the contrary amongst which is Suit No FHC/ABJ/CS/709/11. That in the said suit, Okorowo J. sitting at the Federal High Court, Abuja, on the 11th of August 2011, four months before the claimant was allegedly dismissed by the defendant, ordered the defendant and the Pension Commission of Nigeria (PENCOM) against taking or directing the taking of any action flowing from the document titled “DRAFT FIRST GUARANTEE PENSIONS LIMITED TARGET EXAMINATION” and/or the mandate/directive issued at the meeting of 27th July 2011. The mandate/directive in question was that with regards to actions, sanctions, measures and/or directions which may culminate in and/or penalties in the Draft First Guarantee Pensions Limited Target Examination. In Suit No. FHC/L/CS/1035/11, Abang J. of the Federal High Court sitting in Lagos by its orders directed the defendant from interfering with the assets of the defendant or taking any steps or giving effect to the decision communicated to the applicant in the letters dated 12th August 2011 and 22nd March 2011 respectively (Exhibit D). That in spite of these clear and unambiguous orders of Court, the purported Interim Management Committee set up by the National Pension Commission in violation of the Court orders, in usurpation of the powers of the Board of Directors and despite the presence and subsistence of a Managing Director purportedly appointed Chima Akalezi as Acting Managing Director of the defendant. It is the said Chima Akalezi who proceeded to terminate the employment of the claimant in clear violation of the said orders purportedly as Acting Managing Director. To the claimant, the defendant on its part contends that the orders of Abang J. in Suit No FHC/L/CS/1035/11 did not remove from the defendant the power to set up a committee to investigate fraudulent acts committed by the claimant. That the defendant, however, failed to give particulars of the fraud alleged against the claimant neither was the allegation of fraud proved at the trial of the suit. More importantly however, that the defence forgot that the affairs of the defendant being a juristic person are carried out by the legally constituted representatives (the Board and its delegate, the Managing Director) and that for anyone to purport to act for the defendant, he must be legally empowered to so do, that legitimacy the said Chima Akalezi did not have, and could not pretend to have in the face of Court orders which he and his sponsors chose to ignore, and an appointment which PENCOM clearly had no statutory powers to make. The claimant accordingly continued that the issues for determination in this suit turn on the legitimacy of actions taken in direct violation of the orders of Court, the right of an officer of a company to protect his employment right in the company under CAMA, when such a right is infringed upon in violation of the company’s articles of association, and the need by the Court to always protect and preserve the sanctity of Court orders. THE DEFENDANT’S CASE On the other hand, the case of the defendant is that the claimant was a Senior Manager in its employment. That the contract of employment is based on the terms and condition of service as manifested in First Guarantee Pension Ltd Human Capital Management Handbook admitted as Exhibit D2. To the defendant, the contract of employment is based on the common law master/servant relationship. However, that during the course of investigation into the activities of the defendant, it was discovered that there was record of certain commission due to the defendant from Federal Government bond but was not credited into the account of the defendant and there was equally evidence of hidden account being operated by the claimant without the knowledge of the defendant. As a result of the above allegation, and in line with the procedure in the Handbook, the defendant issued a query to the claimant to explain the reason for the above anomalies. Although the claimant responded to the query, the defendant, not being satisfied with the explanation offered by the claimant in his answer to the query, directed the claimant to proceed on suspension pending the conclusion of an investigation into the matter. The defendant then set up a disciplinary committee to investigate the allegation against the claimant in accordance with the terms and conditions of the contract of employment as manifested in Exhibit D2. The committee sent a letter of invitation to the claimant. Rather than appear before the committee to defend himself, the claimant declined the invitation of the committee and refused to appear before it. That since the claimant failed to appear before the committee to defend himself of the allegation made out against him, the committee submitted its report to the company. The company thereafter accepted the report of the committee and dismissed the claimant in accordance with the terms and conditions of the contract of employment as manifested in Exhibit D2 for having breached the company policy on general conduct and code of ethics. THE DEFENDANT’S SUBMISSIONS The defendants framed three issues for determination, namely – 1. Whether the claimant’s dismissal from employment by the defendant is in accordance with the terms and condition of the contract of employment between the claimant and the defendant and, therefore, lawful. 2. Whether having lawfully been dismissed from employment the claimant is entitled to any of the reliefs sought in the complaint and the statement of facts. 3. Whether having regard to the terms and conditions of employment as shown in Exhibit D2, the defendant/counterclaimant is entitled to the reliefs sought in the counterclaim. Regarding issue 1, the defendant contended that it is the law that a contract of service is the bedrock upon which an aggrieved employee must found his case; he succeeds or fails upon the terms thereof. Therefore, in a written or documented contract of service, the Court will not look outside the terms stipulated or agreed thereon in deciding the rights and obligations of the parties, citing Akinife v. UBN Plc [2007] 10 NWLR (Pt.1041) 11 and Afribank (Nig.) Plc v. Osisanya [2000] 1 NWLR (Pt. 642) 592. That where conditions of service exist between an employer and an employee, the provisions contained therein are binding on them; any disciplinary measure taken by the employer against the employee upon allegation of misconduct such as termination or dismissal must be in accordance with the laid down procedure as provided by the conditions of service, referring to DA (Nig.) AIEP Ltd v. Oluwadare [2007] 7 NWLR (Pt.1033) 336. That in Okumu Oil Palm Co. Ltd v. Iserbienrhien [2001] 6 NWLR (Pt. 710) 660 it was held that a servant who complains that his employment has been wrongly brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of employment which is the bedrock of his case. To the defendant, Exhibit D2 is the Handbook containing the terms and condition of the contract of employment between the claimant and the defendant. At paragraph 3.16 of the said handbook under the heading “Summary Dismissal”, it is provided as follows: an employee may be summarily dismissed for criminal offence/conviction in Court of law, fraud, forgery, continued absence from duty without permission, serious misconduct as determined by Group Head/MD/DMD. Furthermore, that paragraphs 5.1 – 5.2 stipulate the guideline for disciplinary measures against an erring employee. At paragraph 5.2 under the heading “Dismissal” it is provided that a staff may be summarily dismissed from service (that is removed from employment without notice or pay in lieu) on the following grounds – i. Willful insubordination or disobedience, whether as one or in combination with others of any lawful and reasonable order and obstruction of any person lawfully placed by the Company or any provision of these rules hereof. ii. Theft, Fraud and/or dishonesty in connection with the company’s business or property. Any employee guilty of these offences may be liable to prosecution. iii. Drunkenness or other acts that makes the employee unfit to carry out his/her duties. iv. Use of abusive or insulting language. v. Fighting and assault or engaging in riotous disorder or immoral behaviour, during working hours on the Company premises or within its precincts. vi. Bribery and Corruption or where an employee behaves in a way calculated to have corruptible influence on others. vii. Any other serious matter as may be determined by the management. The defendant went on that in the instant case, the letter of dismissal dated 15th December 2011, which is admitted as Exhibit P7, was issued to the claimant after he voluntarily refused to appear before the panel set up to investigate the allegation made out against him and take the opportunity afforded him to defend himself of the allegation. The letter specifically stated that the claimant was dismissed from his employment due to his fraudulent behaviour which has breached the company policy on general conduct and code of ethics. That a cursory look at paragraphs 3.16 and 5.2 of Exhibit D2 will reveal that any employee said to have engaged in criminal activities or fraudulent behaviour is liable to be dismissed in line with the terms and conditions of service between the claimant and the defendant as those conducts are said to have breached the company policy on general conduct and code of ethics, citing NEPA v. Adesaaji [2002] 17 NWLR (Pt. 797) 578 at 605, Yusuf v. UBN Ltd [1996] 6 NWLR (Pt. 457) 632, Olarewaju v. Afribank (Nig.) Plc [2001] 12 NWLR (731) 691 and Imonikhe v. Unity Bank Plc [2011] 5 (Pt. II) MJSC 1. In other words, that it is the terms and conditions of employment that must be examined by the Court to determine if the dismissal is in accordance with the conditions of service. That in the instant case, the claimant’s dismissal is dearly in accordance with the provision of Articles 3.16 and 5.2 – 5.4 of the terms and conditions of employment. That in seeking disciplinary action against the claimant, a query was issued to him which he answered; not being satisfied with the answer, another panel was inaugurated to investigate whether his conduct breaches the company policy on general conduct and code of ethics. However, that the claimant failed to take the opportunity given to him to appear and defend himself before the panel investigating his conduct. Hence the defendant was left with no other option than to find the activities of the claimant a breach of the company policy on general conduct and code of ethics which attracts a penalty of summary dismissal and subsequent prosecution in a Court of law if the company elects to prosecute the behavior. Although the claimant contended that the use of the word criminal activities or fraudulent behaviour in the letter of dismissal connotes allegation of criminal activities which requires proof beyond reasonable doubt in a Court of competent jurisdiction before he could be validly dismissed, the defendant contended that the law is now well settled that it is not necessary nor is it a requirement under section 36 of the 1999 Constitution that before an employer summarily dismisses his employee from service under common law, the employee must be tried before a court of law where the accusation is for gross misconduct which borders on criminality. That where an employee has been found guilty of misconduct which borders on criminality the master has a choice either to exercise his discretion in favour of prosecuting the erring servant or dismissing him summarily, citing NEPA v. Adesaaji (supra), Imonikhe v. Unity Bank Plc (supra) at 190 – 191 and Eze v. Spring Bank [2011] 12 MJSC 1 at 30. The defendant, therefore, submitted that the dismissal of the claimant as a result of his fraudulent behaviour which is in breach of Article 5.4 of the company policy on general conduct and code of ethics as shown in the conditions of service (Exhibit D2) is lawful notwithstanding his non-prosecution before the Court of law. That this is because he was dismissed not as a result of a breach of a crime under the criminal code or penal code but as a result of a breach of the company policy on general conduct and ethics under the terms and condition of employment between the parties. That Exhibit D3 emphasized this much when it stated that “Your fraudulent behavior has breached the company policy on general conduct and code of ethics”. The defendant then urged the Court to hold that since the dismissal is in compliance with the contract of employment the matter ends there and the claimant’s case is liable to be dismissed. The defendant went on that the claimant contended that his dismissal was unlawful not because it was done by the company which is his employer but because there was an order of the Court restraining PENCOM the regulatory body of the defendant from interfering with the affairs of the defendant and that the management of the defendant was not legally constituted as same was constituted by PENCOM. However, that under cross-examination the claimant admitted that he is neither a member of the company nor a shareholder but an employee and that his employment is regulated by the contract of employment between the parties and that he was not a party to the suit now pending at the Federal High Court and that the order of Court was not made in his favour by the Federal High Court. That a cursory look at the terms and conditions of employment as shown in Exhibit D2 will reveal that no such obligation or duty is imposed on the employee such as to challenge the legality or illegality of those who constitute the management board of the company. That the order of Court in question has also not imposed any obligation on the defendant to which it is restrained from imposing any disciplinary measure to an erring employee. It is the submission of the defendant, therefore, that the claimant, not being a member of the company or a shareholder in the company or a person in whose favour an order of Court was made against the company, lacks the locus standi or capacity to challenge the management, control or administration of the company. Furthermore, that PENCOM whose action in constituting an interim management board of the defendant is alleged to be illegal for being contrary to an existing order of Court is not made a party before this Court to enable it defend its action neither is any document provided before the Court indicating to what extent the said PENCOM was in breach of the order of the Federal High Court. That it is the law that every person against whom an allegation is made must be heard before a case against him is determined. That natural justice demands that a party be heard before the case against him is determined, citing Chukwuma v. FRN [2011] 5(Pt. II) MJSC 1. The defendant then contended that since the said PENCOM is not made a party in this Court, this Court cannot, therefore, pronounce on the legality or illegality of its action having not been given an opportunity to defend itself. The present dispute is between an employee who is the claimant and his employer, the defendant; and it has nothing to do with the action of the regulatory body. Furthermore, that there are no reliefs before the Court urging the Court to declare the purported act of PENCOM illegal, null and void and there been no such relief, the Court not being a Father Christmas, cannot grant the claimant an order he has not asked from the Court, citing Chief Godfrey Oyekwuluni v. Augustine Ndolor [1997] 7 NWLR (Pt. 512) 250 at 281 – 282, Olorotimi v. Ige [1993] 8 NWLR (Pt. 311) 257 at 271 and Makanjuola v. Balogun [1989] 3 NWLR (Pt. 108) 192 at 206. The defendant further submitted that this Court lacks the jurisdiction or competency to determine whether the interim management board of the defendant was legally constituted by virtue of the provision of section 251(1)(e) of the 1999 Constitution, which has conferred exclusive jurisdiction on the Federal High Court in matters “arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act”, since the allegation of acting contrary to an order of Court leveled against PENCOM by the claimant relates to its constitution of the Interim Management Board of the defendant which, therefore, raises the issue of who has the authority to manage or run the affairs of the company. That in Skenconsult (Nig.) Limited v. Ukey [1981] 1 SC 6 the Supreme Court held that matters which relate to the management and the administration of the company fall within the exclusive jurisdiction of the Federal High Court while interpreting a law which has a similar provision to that of section 251(1)(e) of the 1999 Constitution, as amended. Also referred to the Court is Omisade v. Akande [1987] 2 NWLR (Pt. 55) 158. The defendant then urged the Court to resist the claimant’s attempt at misdirecting the area of conflict between himself and the defendant and hold that having regards to its claim before the court, it cannot delve into an issue relating to the control and administration of the defendant as it has no such competency or jurisdiction to determine the issue relating to the legality or illegality of the interim management board of the defendant responsible for the control, management and administration of the defendant. In consequence, that the Court should resolve issue 1 in favour of the defendant and hold that the claimant was dismissed in accordance with the terms and conditions of the contract of employment between the parties and same is, therefore, valid and lawful. On issue 2 i.e. whether having lawfully been dismissed from employment the claimant is entitled to any of the reliefs sought in the complaint and the statement of facts, the defendant commenced its argument by relying on Imonikhe v. Unity Bank Plc (supra) where it was held that where the dismissal/termination is in compliance with the contract of employment, the matters end there. That an employee who is lawfully dismissed from employment is not entitled to any terminal benefit, citing Ekeagwu v. Nigeria Army [2006] 11 NWLR (Pt. 991) 382. However, that assuming but not conceding that the claimant’s dismissal was wrongful, the claimant is only entitled to recover damages and not reinstatement injunction or payment of entitlements to date for which he has not worked as claimed in the complaint and the statement of fact, referring to Imonikhe v. Unity Bank (supra), Eze v. Spring Bank (supra), Ilodibia v. Nigeria Cement Company Ltd [1997] 7 NWLR (Pt. 174 at 176 and 177, Osisanya v. Afribank (Nig.) Plc [2007] 6 NWLR (Pt. 1031) 565, Nwachukwu v. Nwizu [1994] 7 NWLR (Pt. 357) 379 and Ekpeogu v. Ashaka Cement Co. Plc (Pt. 508) 280. The defendant, therefore, submitted that the claimant is not entitled to the reliefs of reinstatement and other reliefs being claimed in the statement of facts as his remedy lies only in recovery of damages for wrongful dismissal. That this Court cannot impose a willing employee on an unwillingly employer. It is the further submission of the defendant that since the claimant has no claim or relief in damages before the Court, this Court cannot, therefore, make an order in damages for breach of contract of employment. This is because the Court lacks the jurisdiction to grant a relief not claimed by the parties. That a Court of law must not grant to a party a relief which he has not sought from it, referring to Ekpeyoung v. Nyong [1975] 2 SC 71 at 81 – 82, Kalio v. Daniel [1975] 2 SC 15 at 17 – 19, Makanjuola v. Balogun [1989] 3 NWLR (Pt. 311) 257 at 271 and Olorotimi v. Ige [1993] 8 NWLR (Pt. 311) 257 at 171. The defendant accordingly urged the Court to resolve issue 2 in its favour and hold that the claimant having been lawfully dismissed in accordance with the terms and conditions of his employment is not entitled to any of the reliefs claimed in the complaint and statement of facts. Regarding issue 3 i.e. whether having regard to the terms and conditions of employment as shown in Exhibit D2, the defendant/counterclaimant is entitled to the reliefs sought in the counterclaim, the defendant submitted that having lawfully brought the contract of employment between the claimant and the defendant to an end with the dismissal of the claimant, the defendant is entitled to recover its properties still in possession of the claimant. That paragraph 3.16 of the Handbook admitted as Exhibit D2 provides that upon the contract being brought to an end, a staff must also return all company property in their possession immediately such as ID card, standard operating procedure manual, credit policy guild, etc. That it is in evidence that while the claimant was in the employment of the defendant he was given the following items to use in the performance of his duties: a blackberry phone with simcard, identification card, heath partners medical cards for the claimant and family and other company documents. To the defendant, the claimant did not deny the fact that these items were giving to him during the course of his employment with the defendant but he claimed to have returned them. However, that there was no evidence placed before the Court to prove that he submitted these items to the defendant. That it is the law that he who asserts the positive has the burden to proof it, citing Daudu v. NNPC [1998] 2 NWLR (Pt. 538) 355. That having admitted that the defendant gave him the items with which he performed his duties, the burden of proving that he returned the items to the defendant after the contract of service was brought to an end in compliance with the terms and conditions of the contract of service rests squarely on him to discharge. That he has the duty to tell the Court who he handed over the document to, who collected them from him and whether there was a written document from the company indicating that these items were handed over. In short, there need be a form of handover note to prove that these items were returned to the company after the contract of service was brought to an end. It is the contention of the defendant that there being no evidence before this Court to prove that these items were return to the company after the contract was brought to an end, the Court is left with no other option than to hold that the items were not returned to the company. In the circumstance, the defendant urged the Court to grant the reliefs of the defendant/counterclaimant in accordance with the terms and conditions of employment and order the claimant to return all the company properties in his possession. The defendant also urged the Court to resolve issue 3 in favour of the defendant/counterclaimant and grant the counterclaim. In conclusion, the defendant urged the Court to dismiss the claim of the claimant and grant the defendant its counterclaim. THE CLAIMANT’S SUBMISSIONS In reaction, the claimant framed three issues for the determination of the Court, namely – 1) Whether Chima Akalezi, purportedly acting as Managing Director of the defendant and the Interim Board of Directors, ostensibly appointed by PENCOM, could exercise the powers of the Board of the company and terminate the appointment of the claimant whilst the orders of Abang J. made on 28th November 2011 were subsisting. 2) Whether the claimant as an officer of the company and in defence of the company’s articles of association is entitled to challenge his purported dismissal by the said Chima Akalezi claiming to be the Ag. Managing Director of the company. 3) Whether the claimant having led credible evidence is entitled to the reliefs sought. Regarding issue 1) i.e. whether Chima Akalezi, purportedly acting as Managing Director of the defendant and the interim Board of Directors, ostensibly appointed by PENCOM, could exercise the powers of the Board of the company and terminate the appointment of the claimant whilst the orders of Abang J. made on 28th November 2011 was subsisting, the claimant contended that in other to appreciate this issue and indeed the other issues reserved herein, a critical examination of the evidence proffered in support of the claimant’s case is essential. To the claimant, he gave evidence that he was employed by the defendant company as Manager and Head of Treasury by a letter of employment dated 18th December 2007 with his employment to take effect from 11th December 2007. That he testified that on 12th December 2011, he received a memo from the defendant company inviting him to a meeting with the management of the company to discuss and clarify certain issues which the defendant claimed had arisen from the conclusion of the investigation of an ad hoc committee which was set up to investigate the details of commissions due to the defendant on Federal Government Bonds. He further testified that he declined to honour the invitation as he was instructed by his solicitor not to do so in the light of a subsisting Court order made on 28th November 2011 and the letters from the Attorney General of the Federation dated 17th August 2011 and 8th September 2011 which referred to an earlier order of Okorowo J. of the Federal High Court in Suit No. FHC/ABJ/CS/709/11 which eroded the powers of the defendant to convene such a meeting. He gave evidence that the fact of the orders and the directive of the Attorney General of the Federation were all communicated to the defendant by his solicitor vide a letter dated 12th December 2011. The claimant further stated in his evidence in-chief that the defendant was being managed by an interim management appointed by the National Pension Commission who together with Chima Akalezi, purporting to act as Acting Managing Director of the defendant company continued to flout the orders of the various Courts and the directive of the Attorney General of the Federation. That despite the subsisting orders of Courts, Chima Akalezi purporting to act as the Managing Director allegedly and illegally on behalf of the defendant proceeded to dismiss him from his employment vide a letter dated the 15th of December 2011. With regards to the allegation of diverting the defendant’s funds (an attempt by the defence to deflect attention away from the illegality of their action and the contempt of Court orders these actions constitute), the claimant stated in reply to the defendant’s statement of defence and defence to counterclaim that the defendant operated an account with Zenith Bank where commissions made on the sale of Government bonds were kept and the said account was reactivated by the order of the Board of Directors of the defendant vide a letter dated 15/12/10 and upon reactivation, the signatories to the account were changed and that the account was opened by the former Managing Director of the defendant, Mr. Wilson Ideva. He testified that all payments into the said account was to the knowledge of the then MD as directed by the Board. He further stated that the chairman of the Board of the defendant, and not him the claimant, duly notified Zenith Bank Plc of the change of signatories to the account to include himself and Mrs. Joan Mbachu. The claimant contended that his employment with the defendant was purportedly terminated by the PENCOM appointed Acting Managing Director because of his perceived loyalty to the Board of the company who were challenging the usurpation of their powers by the Pension Commission and the appointment of Mr. Chima Akalezi as the Acting Managing Director along with other persons purportedly as Directors contrary to the Companies and Allied Matters Act (CAMA) 1990 and the express orders of a Court of law and the express provisions of the PENCOM Act. In his further witness deposition, the claimant testified that the persons allegedly appointed as Directors of the defendant company had been restrained by a Court of law per the judgment of Okorowo J. in Suit No. FHC/ABJ/CS/709/11 from acting over the affairs of the defendant. The Court in the said judgment further retrained the PENCOM from acting upon the Draft First Guarantee Pensions Limited Target Examination issued at the meeting of 27th July 2011. Under cross-examination, the claimant testified that the Acting Managing Director purportedly acting on behalf of the defendant made an allegation of fraud against him with respect to the defendant’s account with Zenith Bank Plc. He stated that he did not attend the meeting called by the defendant which was called to discuss the ad hoc committee report set up by him to investigate issues relating to the Zenith account because of the subsisting orders of Courts with regards to the Zenith account. He testified that the said account was not a secret one as it was opened by the Managing Director of the defendant company in 2010 with five members of staff duly designated as signatories. He testified that he was offered commissions personally for the sale of Federal Government Bonds, which commission he turned over to the company and which commission was paid into the said account. The Managing Director of the company was aware of all the transactions on the account, as he was not only briefed, he was also a signatory to the account. Arising from these serial acts of illegality, the claimant contended in his reliefs before this Court that his purported removal vide a letter of dismissal dated 15th December 2011 was illegal, null and void and of no effect. The ground upon which the claimant so contends is that as at the time his employment was purportedly terminated the interim board of the defendant appointed by PENCOM which included the Acting Managing Director/Chief Executive Officer, Mr. Chima Akalezi, had been restrained by orders of Court from assuming the powers of the Board of the defendant and, therefore, had no power to constitute the ad hoc committee to investigate him and following there from terminate his employment. The claimant then reproduced the orders of the Federal High Court per Abang, J, which are as follows – (1) That the 1st and 2nd Respondents are hereby retrained by themselves, their servants, agents, officers and representatives from interfering with and or dealing with the assets of the First Guarantee Pension Limited or taking any step or further actions in any form whatsoever or giving effect or any directives to the decision communicated to the Applicant in the letters dated the 12th day of August, 2011, 22nd March, 2011 respectively pending the hearing and determination of appeal filed by the Applicant on 25th October, 2011. (2) That the Applicant shall within 2 days file an undertaking to indemnify the Respondents by way of damages in the event that this Order ought not to have been made. (3) That the Applicant shall compile and transmit Record of Appeal to the Court of Appeal within 90 days from 25th October, 2011. The claimant in his evidence in-chief tendered several exhibits, marked Exhibits A – O. Exhibit D which is the order of Abang J of the Federal High Court Lagos was made on 28th November 2011 in Suit No. FHC/L/CS/1035/11 between First Guaranty Pension Ltd v. National Pension Commission & the Attorney-General of the Federation. The said order which was made before the purported termination of the employment of the claimant directed the 1st and 2nd defendants, that is, the National Pension Commission (PENCOM) and the Attorney-General of the Federation as per order (1) reproduced earlier as follows. That the 1st and 2nd Respondents are hereby restrained by themselves, their servants, agents, officers and representatives from interfering with and or dealing with the assets of the First Guaranty Pension Limited or taking any step or further actions in any form whatsoever or giving effect or any directives to the decision communicated to the Applicant in the letters dated the 12th day of August 2011, 22nd March 2011 respectively pending the hearing and determination of the appeal filed by the Applicant on 25th October 2011. Similarly, and in addition to the orders of Abang J, in Suit No. FHC/ABJ/CS/709/11 between Derrick Ripper & anor v. National Pension Commission, Attorney-General of the Federation & First Guaranty Pension Ltd, Okorowo J of the Federal High Court made the following orders against the National Pension Commission (PENCOM) and the Attorney-General of the Federation which said orders included the defendant in this present suit. The orders are – 1. An order of interim injunction restraining the 1st and 2nd respondents either acting by themselves or through their agents, servants, privies howsoever otherwise described from instigating, taking and/or directing the taking of any action, sanctions, measures and/or directions of any nature or type flowing from or preponderant to the document entitled “DRAFT FIRST GUARANTY PENSIONS LIMITED TARGET EXAMINATION” and/or the mandate/directive issued at the meeting of 27th July 2011 which actions, sanctions, measures and/or directions may culminate in, and/or is likely to result in the implementation of any of the recommendations, sanctions, and/or penalties in the DRAFT FIRST GUARANTY PENSIONS LIMITED TARGET EXAMINATION pending the hearing and determination of the Applicant’s Motion on Notice for interlocutory injunction. 2. An order of interim injunction restraining the 1st and 2nd respondents either acting by themselves or through their agents, servants, privies howsoever otherwise described from instigating, taking and/or directing the taking of any action, sanctions, measures and/or directions of any nature or type that will culminate in, and/or direct the taking of any action that will, or is likely to result in the removal of the 1st Applicant as a Director of the 3rd respondent and/or a breach of any of his fundamental rights as guaranteed under the 1999 Constitution of the Federal Republic of Nigeria pending the determination of the Motion on Notice for interlocutory injunction. 3. An order of interim injunction restraining the respondents from taking any further steps in connection with the subject matter of this suit and directing them to maintain status quo pending the determination of the Motion on Notice for interlocutory injunction. To the claimant, these orders, which were directed against the Federal Attorney-General and PENCOM, were fully adhered to by the Attorney-General of the Federation, but ignored by PENCOM. Indeed, that the Attorney-General of the Federation in Exhibits F and G dated the 17/8/11 and 8/9/11 (with regards to Suit No. FHC/AB/CS/709/11) directed the defendant herein and PENCOM to obey the orders of Okorowo J. PENCOM instead flouted these orders and directives with impunity and proceeded to set up an interim management committee that appointed its own board including the acting Managing Director/CEO of the defendant company, and then proceeded to terminate the employment of the claimant, while the orders of Court restraining them from carrying on subsisted. To the claimant, it is important to point out that a close scrutiny of the PENCOM Act does not give PENCOM the power to appoint an interim board or a board of any description for an operator under its supervision. That the powers to appoint a board for a limited liability company resides with the General meeting of a company as provided for in the Companies and Allied Matters Act. Therefore, that not only was PENCOM in violation and thus in contempt of subsisting orders of Court, PENCOM, a creation of statute, arrogated to itself powers its enabling Act did not give to it, and also acted in complete disregard of its own laws thereby encouraging the said Chima Akalezi to carry out series of illegal actions one of which was the termination of the claimant’s employment. The claimant continued that as was once famously said by his Lordship, Niki-Tobi JCA (as he then was) “You cannot put something on nothing” (the source of this statement is not supplied by the claimant), PENCOM, even if they were to be forgiven for being in disobedience of the order of Court, cannot arrogate to themselves powers they do not possess, That in violently assaulting the company’s corporate charter, that is, its Articles of Association, the provisions of its own laws, that of the Companies and Allied Matters Act as well as the claimant’s employment contract, the defendant stood itself out as above the laws of this land, which must not be tolerated by any Court in this country. That the right of the claimant to defend the Articles of Association of the company is well provided for vide section 41 of the Companies and Allied Matters Act. This issue, according to the claimant, will be given further attention when he addresses the Court on the second issue. Indeed, that the extent of the flagrant disregard of the order of Court and the law is borne out clearly in paragraphs 4 and 5 of the letter of the Attorney-General of the Federation dated 17/8/11 and addressed to the Director-General of PENCOM titled: “Contempt of Court By The National Pension Commission (“PENCOM”) In Respect Of The Removal of Mr. Derrick Roper As A Director of First Guaranty Pension Limited”. The letter referenced the orders of Okorowo J. in Suit No. FHC/ABJ/CS/709/11 and went on to state as follows – 4 The Solicitors to the Plaintiffs have contended in their petitions that the above mentioned decisions by PENCOM constitute a violation of the said Order of the Federal High Court and therefore contemptuous of the Court. 5. I have carefully reviewed the said Court Order and it is my considered opinion that the decisions and actions of PENCOM complained about are clearly in violation of the Order which is capable of exposing the Government particularly the Honourable Attorney General of the Federation, who is the 2nd Respondent in the Order, to unnecessary criticism and embarrassment. The claimant went on that again by yet another letter dated 8th September 2011 and titled “Re: Actions By The Interim Management of First Management of First Guaranty Pensions Limited”, P. S. Okorie, writing on behalf of the Honourable Attorney-General of the Federation, alluding to the orders of Okorowo J, said – Pending the investigation of the above allegations of continuous breach of the Court Order by PENCOM, I have been directed by the Honourable Attorney General of the Federation and Minister of Justice to draw your attention to his meeting with all the parties in the above suit on the 26th of August, 2011 and to reiterate his position that the constitution of the Interim Management Committee of FGPL by PENCOM on Monday the 15th of August, 2011 and all action taken by the Committee were in breach of the Court Order which was duly served on PENCOM on 12th August, 2011 (emphasis is the claimant’s). To the claimant, no doubt, that PENCOM was aware of the orders of Court, could not care less about them to the extent that the Federal Attorney General was very concerned. In spite of the Attorney-General’s valiant effort to protect and maintain the rule of Law, PENCOM continued to act as though they were above the law. The claimant then cited Wazurike & ors v. The Attorney General of the Federation [2013] LPELR 20392 where the Supreme Court per Rhodes-Vivour held that – The well laid down position of the Law is that anyone who is served with, or becomes aware of a valid order of court should ensure that he obeys it in full. Failure to obey a valid court order may amount to a willful breach of it which could lead to contempt proceedings with serious consequences. That it is not controverted by the defendant that they were aware of the aforesaid suits orders of Court. In fact, in paragraphs 4, 5 and 6 of the defendant’s witness statement dated 13th August 2012 and its further witness statement deposed to on 23rd October 2013, the witness conceded that the said orders were to the knowledge of the defendant. Indeed, that under cross-examination by the claimant’s counsel, DW further admitted the fact that the defendant was aware of the said orders of Court which were valid and subsisting at the time the claimant’s employment was allegedly tampered with. The following are the extracts of the cross-examination of DW. To the claimant, the valid and subsisting orders of the various Courts and the clear directives of the Attorney-General of the Federation to PENCOM and the defendant were flagrantly violated by PENCOM and the defendant who proceeded to appoint an interim management committee and the acting Managing Director of the defendant. It is the submission of the claimant that the actions, deeds and steps taken by the said acting MD, Chima Akalezi, which includes the termination of employment of the claimant was a clear violation of the orders of Court and, therefore, null, void and of no effect and whatsoever. Those acts cannot be given credence by any Court in this land, or effect given to them. They could, therefore, not truncate or be adjudged as having truncated the claimant’s employment. The defendant had argued that the various orders of the Courts did not impose any obligation on the defendant not to impose disciplinary measure on erring employees. They also argued that the claimant not being a shareholder in the defendant company lacks the locus to challenge the management of the company. On this, the claimant craved the Court’s indulgence to quickly point out the error in the defendant’s submission as referenced as nothing can be farther from the law than the position espoused as the law in the defendant’s submission. That it is a time honoured principle of company law referred to in Nigeria prior to the 1990 Companies Act as the section 16 contract which was akin to the English section 14 contract. That the section 16 contract under the 1968 Companies Act which was re-enacted but modified to extend the powers therein to officers of the company by section 41 of CAMA was dealt with by the English Courts in the case of Wood v. Odessa Water Works Co. (1889) 42 Ch.D 636. The law as contained in the said contract recognized the Articles of Association of a limited liability company as a contract between the members of the company inter se, and between the company and its members. By virtue of the modification in section 41 of CAMA, the contract was extended to the cover the members inter se, the members and the company, the company and its officers as well as the members and the officers of the company. The contract which section 41 recognizes gives the officer of the company the right to protect the integrity of the Articles of Association of a limited liability company as well as to intervene in any action carried out in the name of the company, which is illegal and/or ultra vires the company. This right, though endorsed and emphasized by statute, is a contractual right of which injunction is one of the remedies available to the claimant. This power which is contained in the said section, when exercised “qua member” was explained in the case of Welton v. Saffrey (1897) AC 299 at 315 (1889) 42 Ch. D 636, where Stirling J said: “The articles of association constitute a contract not merely between the shareholders and the company, but between each individual shareholder and every other”. Lord Herschell on his part said: “It is quite true that the articles constitute a contract between each member and the company, and that there is no contract in terms between the individual members of the company; but the articles do not any the less, in my opinion, regulate their rights inter se”. Finally, in its written submission, the defendant invited the Court to hold that PENCOM who constituted the vexed interim board is not a party in the present suit and the claimant has no relief against PENCOM to declare its act illegal, null and void. To the claimant, the defendant failed to appreciate the fact that this is primarily a case on employment, that is master/servant, where the servant is complaining of the acts of the master that infringe his right to employment. The action complained of is that of Chima Akalezi, purportedly acting on behalf of the defendant. Chima Akalezi, purports to draw legitimacy for his actions from a mandate from PENCOM, which mandate is fatally flawed. It is the mandate we have here scrutinized to show that they cannot be tolerated in law, let alone give legality to the actions of Chima Akalezi purportedly acting on behalf of the defendant. It is, therefore, to the defendant this Court must direct its orders (being a juristic person) to reverse the injustice caused the claimant from the serial violation of the law and orders of Court. PENCOM cannot be a party as it is neither the employer nor the one purporting to terminate the claimant’s employment even though it is clearly the agent provocateur. Needless to reiterate, that it is the case of the servant, the claimant in this case, that his employment was interfered with by third parties usurping statutory powers not vested in them and after they had been restrained by orders of Court to interfere with his employment, thus causing him injury; hence ibi jus ibi remedium (where there is a right, there is a remedy). That this is still the basic principle of law in Nigeria. Again, the claimant submitted that PENCOM is not the employer neither did they terminate the claimant’s employment. That PENCOM merely encouraged a usurper (the Acting Managing Director) to exercise powers he did not have and from one who could not give it. The claimant urged the Court to discountenance the authorities cited by the learned counsel in paragraphs 4.23, 4.26 and 4.28 of its written address as they are irrelevant to the present case. That the jurisdiction of this Court is defined by statute and is specific. That the issue in dispute in this case for which adjudication has been requested is the right or otherwise of the claimant to continue in employment. In other words, the issue for consideration before this Court is whether at the time the employment of the claimant was terminated by the defendant vide the letter of termination dated 15th December 2011 there were orders of Court restraining the Acting Managing Director of the defendant and PENCOM from usurping or interfering with the powers and functions of the Board of Directors of the defendant. That it is instructive to note that the Federal Attorney-General who was a party in the suit in which these orders were made on receipt and review of the order gave clear directives on these orders and the consequence of the breach of it by the defendant and PENCOM. The claimant went on that if this Court makes a finding that these orders made against the defendant and PENCOM by the Federal High Court in Suits Nos. FHC/L/CS/1035/11 and FHC/ABJ/CS/709/11 and the directives of the Attorney-General as contained in the letters of 17th August 2011 and 8th September 2011 restraining the defendant and PENCOM from constituting the purported interim management committee and appointing the acting Managing Director were subsisting as at the date the claimant’s employment was terminated then this Court must hold that the deeds, acts and steps of the Acting Managing Director purportedly acting on behalf of the defendant in terminating the employment of the claimant are illegal, null and void and of no effect. The letter of 15th December 2011 signed by Chima Akalezi purportedly on behalf of the defendant is accordingly also null and void. To the claimant, counsel to the defendant had again erroneously argued in miscomprehension of the law and the substance of this case that the claimant in his reliefs as shown in the complaint before the Court failed to claim damages, if the court was to find that the dismissal of the claimant from his employment with the defendant company was illegal, null and void. That the law is that with respect to a claim that is illegal, null and void, there was no dismissal. In NIIA v. Ayanfalu [2007] 2 NWLR (Pt. 1018) 246 at 266 G – H, the Court of Appeal held thus – There is a distinction between mere wrongful dismissal and an invalid or null dismissal. The situation of payment in lieu of notice will apply where the court makes a finding of wrongful dismissal in favour of a servant. Where, however, a court makes a finding that the dismissal or termination of a servant was null and void, there is no dismissal or termination. What the employer did was a nullity before the law. Also, in the English case of Morris v. Kanssen [1946] 1 All ER 586 at 590 E – F, the Court held thus – There is, as it appears to me, a vital distinction between (a) an appointment in which there is a defect or, in other words, a defective appointment, and (b) no appointment at all. In the first case, it is implied that some act is done which purports to be an appointment but is by reason of some defect inadequate for the purpose: in the second case, there is not a defect; there is no act at all. The claimant then submitted that he has been able to discharge the onus on him by placing sufficient materials before the Court which proves that his dismissal by the defendant was null and void, same having been done in violation of subsisting orders/judgment of Courts and lacking any statutory efficacy, urging the Court to so hold. On twin issues i.e. whether the claimant, as an officer of the company, and in defence of the company’s Articles of Association, is entitled to challenge his purported dismissal by the said Chima Akalezi claiming to be the Ag. Managing Director of the company; and whether the claimant’s employment could be tempered with on the basis of an alleged fraud when none was established and particularized and when the persons purporting to exercise the said power were doing so contrary to the defendant’s Articles of Association to which the claimant is entitled to defend pursuant to section 41 of the Companies and Allied Matters Act 1990, the claimant chose to argue them together for ease of reference and comprehension. To the claimant, his argument here assumes that the Court does find that the action of Chima Akalezi is not null and void. The claimant submitted that his employment with the defendant cannot be tampered with on the basis of an alleged fraud when none was established and particularized and when the persons purporting to exercise the power of the defendant company was doing so contrary to the defendant’s Articles of Association to which the claimant is entitled to defend pursuant to section 41 of the Companies and Allied Matters Act 1990. That in Otukpo v. John & anor [2012] LPELR 20619, the Supreme Court held inter alia – Fraud is defined as an intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It is something dishonestly and morally wrong. Fraud has to be pleaded with particularity and established in evidence. A person alleging fraud is not only required to make the allegation in his pleadings but must set out particulars of fact establishing the alleged fraud, so that the defendant goes into court prepared to meet then. Also, that in Eya & anor v. Olopade [2011] LPELR 1184 the Supreme Court Per Onnoghen, JSC held that – It is settled law that before a party can legally rely on fraud or forgery, the fact must not only be pleaded but particulars thereof must be provided in the pleadings. I have already reproduced the relevant averments in the statement of claim in which forgery was pleaded and it is very clear that the particulars of the alleged forgery have not been pleaded. Further, that Ogbuagu, JSC in Okoli v. Morecab Finances Ltd [2007] All FWLR (Pt. 369) 1164 at 1190 cautioned Courts by holding thus – Courts must be careful in the way they accept the use of the word ‘fraud’ by litigants in proceedings before them. That the word ‘fraud’ is so elastic in meaning as to cover the commission of crime as well as incidents of mere impropriety. That it is often loosely used to cover both situations. That when an allegation of fraud is made, it would have to be supported by particulars. That it is not unusual to allege fraud in civil cases without imputing any crime. See Derry v. Peek (1899) 14 AC 337. To the claimant, the defendant pleaded in paragraphs 6 of its statement of defense/counterclaim wherein it alleged that the claimant was investigated by the committee set up by the defendant to determine ‘suspected fraudulent acts committed by the claimant’ but failed to particularize same. That in the defendant’s letter of dismissal dated 15th December 2011 it stated that the basis for the dismissal of the claimant from the employment of the defendant was as a result of the ‘criminal activities’ he engaged in and the ‘fraudulent behaviour’ he breached. In paragraphs 4.6 and 4.7 of the defendant’s final address, counsel to the defendant argued while referring to the letter of dismissal that the claimant was dismissed from his employment on grounds of fraud. He further argued that paragraphs 3.16 and 5.2 of Exhibit D2 (Employees Handbook) reveal that any employee said to be involved in criminal activities or fraudulent behavior is liable to be dismissed. Thus, that the defence of the defendant to the claims of the claimant and as the reason why he was dismissed is on grounds of fraud. It is settled law that for this defence to avail a party, it must not only be pleaded, particulars must also be given. In Ayilara v. Federal Ministry of Works [2013] LPELR 20772 Sankey JCA held at 24 thus – However, it is equally the law that before a party can legally rely on fraud as a defence, the fact of fraud must not only be pleaded, but particulars thereof must be provided in the pleadings. The claimant then submitted that the consequence of the defendant’s failure to particularize the purported fraud committed by the claimant in its pleadings must be taken to mean that it cannot rely on it and this Court should reject it. That in Sarkar Code of Civil Procedure 11th Ed at page 1038, the learned author stated thus – A party pleading a certain transaction vitiated by fraud must allege and prove those facts of fraud. Paka Varikaiah v. Tadua Buchi Keddy AIR 205 NOC 31: 2004 Andh L 889 (AP)]. Plaint concerning general allegation of fraud without specific instances ought to be immediately rejected or refused as it does not disclose a cause of action. The second limb of the claimant’s submission relating to allegation of fraud beyond stating it in the pleadings and giving particulars is that it must be proved beyond reasonable doubt as provide by section 133 of the Evidence Act. That the question for consideration before the Court is whether the allegation of fraud as contended by the defendant as its defence for the termination of the claimant’s employment has been proved beyond doubt. In Adebiyi & ors v. Adesola [2012] LPELR 9248, the Supreme Court stated that – The court below found as a fact at pages 159 – 160 of the record that the allegation of fraud or forgery of Exhibit A, the purchase receipt was not proved beyond reasonable doubt by the appellants that made the criminal allegation. I agree. Fraud or forgery is a criminal allegation. The full particulars of the alleged fraud or forgery must be pleaded and proved beyond reasonable doubt. The 1st – 5th appellants barely alleged fraud in their statement of defence and counter-claim particularly paragraph 5 thereof at pages 55 – 57 of the record without supplying the particulars thus – The 1st – 5th defendants family never sold any land to the plaintiff for which they issued receipt. The purported receipt is fraudulent in its entirety. “Thus all the pieces of evidence towards proof of the criminal allegation of forgery or fraud were based on nothing and the court below was right to hold that the criminal allegation was not proved beyond reasonable doubt vide section 135(1) of the Evidence Act plus Higrade Maritime Services Ltd v. First Bank of Nigeria Ltd [1991] 1 SCNJ 110, Okoli v. Morecab Finance Nigeria Ltd [2007 5 SCNJ 25”. It is the defendant’s defence that the raison d'eter for the dismissal of the claimant by the defendant was hinged on fraud and criminal activity. In particular, the defendant in DW’s witness statement deposed to on 13th August 2012 stated that the defendant discovered in 2011 that commissions due to the defendant on Federal Government bonds were not credited into its account. She stated that a query was issued to the claimant to explain this position and the defendant not being satisfied with the answer of the claimant to the said query set up an investigative committee who invited the claimant for questioning but refused to attend. She further testified that upon the refusal of the claimant to attend the meeting his employment was thereafter terminated. The alleged letter of dismissal dated 15th December 2011 states that – This is to inform you that you have been dismissed from the company with immediate effect... This is due to the criminal activities you engaged in whilst in the employment of the company. That during cross-examination, the defence witness testified that the allegation of criminal activity alluded to in the said letter of dismissal was never tried in a Court of law prior to the alleged dismissal of the claimant. The claimant proceeded to ask: what, therefore, is the duty of an employer who accuses an employee of the criminal misconduct? That Ba’Aba, JCA in Shell Petroleum Dev. Co. (Nig.) Ltd v. Chief Victor S. Olarewaju [2002] 16 NWLR (Pt. 792) 38 at 73 – 74 held that – The Law is sacrosanct that where an employee is alleged to have committed a crime by his employer, the former must be given an adequate opportunity to explain himself before a tribunal vested with criminal jurisdiction before any disciplinary action is taken against him by his employer. See Tionsha v. JSC. Benue State [1997] 6 NWLR (Pt. 508) 307 and Osakwe v. Nigerian Paper Mills Ltd [1998] 10 NWLR (Pt. 568) 1. To the claimant, a distinction must be drawn between where an employee is alleged to have committed a crime by his employer and where an employee is accused of gross misconduct involving dishonesty bordering on criminality. In the former, the allegation of crime must be tried by a Court of competent jurisdiction, whilst in the former, it is not necessary that the employee is tried in a court of law, referring to Chris E. Eigbe v. Nigerian Union of Teachers [2008] 5 NWLR (Pt. 1081) 604 at 624 per Abba Aji, JCA. The claimant then submitted that his dismissal or alleged dismissal on the evidence before the Court and on the showing of the defendant is not for gross misconduct bordering or criminality, but for alleged “criminal activities...engaged in whilst in the employment of the company”. That the allegation of “criminal activity” ought to have been tried by a Court of law before it can be acted upon. The claimant continued that having failed to so do, in this case, where the Acting Managing Director and/or the Interim Board of the company duly vested with the requisite authority to act on behalf of the company, they still would have acted unlawfully in purporting to dismiss the claimant on the grounds contained in the letter of 15th December 2011. That their action, being in direct violation of section 36(1) of the 1999 Constitution, is null and void and of no effect whatsoever; and consequently the claimant’s employment is undisturbed. The claimant went on that in the defendant’s amended statement of defence and its further witness deposition dated 23rd October 2013, the defendant failed to state with particularity the following facts which would have aided the Court to determine whether or not the defendant was able to prove the allegation of fraud and/criminal activities regarding the defendant’s account with Zenith Bank Plc against the defendant. The facts are as follows – a) Evidence of the sums representing an aggregate of the commission for the Federal Government Bonds that should have been paid into the account. b) The origin of the commission and to whom such commission would be due, the claimant or indeed the defendant. c) The statement of account evidencing fraudulent activity. d) That the resultant fraudulent activity was orchestrated by the claimant. e) Evidence that the claimant was a direct beneficiary of the alleged fraudulent activity. f) Evidence that the said Zenith account was opened without the authorization of the defendant company. g) The particulars of the said account. To the claimant, it is a rule of thumb in Evidence that he who asserts must prove and in a civil matter where fraud is alleged the standard of proof is even higher. In response to the defendant’s contention that it set up committees to investigate suspected fraudulent acts committed by the claimant, the claimant in denying the allegation stated in his witness statement that the defendant operated an account with Zenith Bank Plc where commission deposit for Federal Government bonds were kept. He testified that the commission was offered to him personally but chose to pass it to the company. He further stated that in 2010 the said account was reactivated on the instructions of the then Managing Director of the defendant, Mr. Wilson Ideva. The claimant contended that all payments into the said account were with the knowledge of the MD of the defendant and the Board of Directors of the company. That by a letter dated 15/09/11 the Chairman of the Board of the defendant notified Zenith Bank of the change in signatories to the said account. The claimant continued that the defendant having given fraud, criminal activity and misconduct as the basis for the dismissal of the claimant, the onus is on it to prove that indeed the claimant was guilty of the alleged fraud. That Tabai, JSC in Shell Petroleum Dev. Co. Ltd v. Chief Victor Olarewaju NSCQR (Pt. 2) 1187 at 1207 – the year is not supplied – held thus – The guiding principle which has been articulated and applied in many cases including Olatunbosun v. NIESR Council [1988] 3 NWLR (Pt. 80) 25 is that an employer is not bound to give reasons for terminating the appointment of his employee. But where, as in this case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the Court. In this case, the Appellant, having given gross misconduct as its reason for the respondent’s dismissal, has the onus to establish that the respondent was indeed guilty of the alleged misconduct to warrant his dismissal. And in a case as this, the Court must be watchful to ensure that in the investigations or proceedings of the domestic panel culminating in the employee’s dismissal the rules of natural justice was not beached. The defendant, to the claimant, has failed to meet the standard of proof required to prove allegation of fraud/crime which is proof beyond doubt. That the defendant has failed to establish by credible evidence the details of the alleged secret account i.e. bank statements evidencing the sum that was deposited into the account and what account it was transferred to. It further failed to show the culpability of the claimant in managing the said account when the evidence led by the claimant showed that there were five signatories to the account and the Managing Director and the Board of Directors were aware of the account and in fact authorized its opening in 2010. That in Lapade v. Cambean Finance Ltd [2008] Vol. 44 WRV 115 at 130 lines 20-45134 lines 30-35 (I am not certain about the validity of this law report and hence its authority), the Supreme Court held inter alia – Allegation of fraud and forgery must be pleaded with adequate particulars furnished by a party relying on same. Such a party must prove the criminal allegation beyond reasonable doubt. Such a proof must be one that extends to the realm of probability and excludes fantastic possibility. Such must not have room for speculation or create doubt. See Nwobodo v. Onoh [2004] 10 WRN 27; [1984] 1 SCNLR 1 at 27 – 28; [1984] 1 SC 1; [1984] All NLR 1 per Bello, JSC (as he then was). See section 138(1) Evidence Act, Cap.112, Laws of the Federation of Nigeria, 1990. Fraud requires a higher degree of probability in its proof. It must not be alleged in the air. It must be pleaded with adequate particulars supplied and adequate and appropriate evidence led on same. See George v. Dominion Flour Mills Ltd [1963] 1 All NLR 71; [1963] 1 and 2 SCNLR 117; [1963] NSCC 54 at 77, Aina v. Jinadu [1992] 4 NWLR (Pt. 233) 94 at page 106. Such a party must discharge the onus of proof to the satisfaction of the Court. See Omoregie v. Aiwerioghene [1994] 1 NWLR (Pt. 321) 488 at 499. Whenever an allegation of fraud or forgery is made by a party, it must be made distinctly, expressly and it must be proved. It must be specifically pleaded with particulars given. See Aina v. Jinadu [1992] 4 NWLR (Pt. 233) 91, Omoboriowo v. Ajasin [2003] 50 WRN 132; [1954] NSCC 81; [1984] 1 SCNLR. More importantly, that the claimant vehemently denied the allegation as contained in its reply to the query and further stated vide his solicitor’s letter to the defendant the reason why he was unable to attend the ad hoc committee set up by the defendant to investigate the alleged fraud which was the subsisting orders of the various Courts and the directive of the Federal Attorney-General thereto. The defendant refused to respond to the complaint and fears of the claimant on whether or not the orders of the Courts were being breached. The claimant went on that in paragraphs 4.0 – 4.17 of the defendant’s final written address it also did not establish the alleged criminal conduct the claimant was dismissed for. That no shred of evidence was led by the defendant as the basis for the alleged dismissal. At best, what it argued in paragraphs 4.12 and 4.13 of its final written address was that the claimant was dismissed over allegation of criminal activities. Again, that the Court is left to speculate on what the alleged criminality is. That in Onuige v. Emelumba [2008] 9 NWLR (Pt. 1092) 371 Galadima, JCA (as he then was) held that – The Law has no room for speculation and does not rely on it. In the instant case, it was wrong for the 1st respondent to speculate that the result in 58 polling units, if election had been held there, could not substantially affect the overall 60 polling units where the election held. The trial Tribunal was therefore wrong to have relied on this speculation without sourcing for relevant materials from the evidence placed before it before declaring the success of the 1st respondent. To the claimant, the defendant filed its counterclaim dated 21st February 2012 in which it alleged that the claimant’s employment with the defendant was terminated by a letter of dismissal dated 15/12/11 and that whilst in the employment of the defendant, he was given a car and keys, Blackberry and Simcard, ID card and Health Partner’s Medical Cards and, therefore, claims these items. The claimant on his part has argued that his alleged dismissal from the employment of the defendant was wrongful, illegal, null and void and a violation of the various Court orders/judgment and the directives of the Attorney-General of the Federation to the Pension Commission of Nigeria and the defendant not to constitute the purported interim management committee to manage the affairs of the defendant. The claimant further contends that his employment was purportedly terminated because of his perceived loyalty to the Board of the company who is challenging their removal by PENCOM and appointed the acting MD who signed the alleged letter of dismissal. He further contended that the setting up of an interim management committee who appointed the acting MD that set up the committee to investigate and dismiss him was illegal. The claimant then submitted that the defendant having failed to plead the material facts necessary to ground its counterclaim and prove them at the trial goes to no issue, referring to FBN Plc v. Falko (Nig.) Ltd [2008] All FWLR (Pt. 416) 1960. Furthermore, that the persons purporting to exercise management power/control over the defendant company which power/control resulted in the alleged termination of the employment of the claimant did so contrary to the defendant’s Articles of Association to which the claimant is entitled to defend by reason of his being an officer of the company pursuant to section 41 of the Companies and Allied Matters Act 1990, which provides thus – 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. That in NIB (Inv.) West Africa v. Omisore [2006] 4 NWLR (Pt. 969) 172, the Court of Appeal held on the provisions of section 41(1) CAMA thus – The provision of section 41(1) of the Companies and Allied Matters Act 1990 has defined the individual personal rights under the memorandum and articles of the company when registered. On the authority of Obikoya v. Ezenwa [1973] 8 NSCC 504, for instance, it was held that the Memorandum and Articles of Association constitute a contract not merely between the shareholders and the company but between each individual shareholder and every other. A member is free and at liberty to seek redress for any infringement of his rights. To the claimant, by reason of his position as a Senior Manager and Head of Treasury in the defendant company, he was an officer of the company and was under a contractual and indeed statutory duty by reason of section 41(1) of the Companies and Allied Matters Act 1990, with the Memorandum and Articles of Association of the defendant, to be concerned that the company was in breach of Court orders it was bound to honour, and also to approach this Court to contest his purported dismissal by persons who are exercising the powers of the company illegally and without lawful authority. In conclusion, the claimant urged the Court to grant the reliefs sought by him as to do otherwise will be an endorsement of the defendant’s contemptuous act in violating valid and subsisting orders/judgment of a Court of competent jurisdiction. That in Amori v. Ayanda [2008] All FWLR (Pt. 416) 1864 at 1891 C – E the Court of Appeal held on the duty of Courts to give effect to orders of Courts as follows – It is the bounden duty of courts to give effect to court judgment and orders, to ensure speedy resolution and closure of disputes. In the instant case, the Court of Appeal opined that this case if one of the instances when the system can make nonsense of the judicial process. That the courts of the land have been unwilling to and/or unable to give effect to judgment granting the claim of the respondent since 1993 and the respondent has been going from one court to another in vain attempts to reap the fruits of a successful litigation. Like I pointed out earlier, the defendant did not file any reply on points of law. COURT’S DECISION I heard learned counsel and considered all the processes filed in this suit. Before proceeding, I need to point out that in his submissions the claimant appears to have wrongly marked his documents frontloaded. For instance, he kept referring to The Court order of 28th November 2011 as Exhibit D when in the case file it is Exhibit C. I must also remark on the several instances of incorrect or incomplete citation of cases as well as grammatical errors and incomplete sentences that litter in the claimant’s written address and other processes. A classic example is relief 2 claimed by the claimant, which is “an order of perpetual injunction restraining the defendant whether by themselves, agents, privies”; and this is exactly how it is couched in both the complaint and the statement of facts (and of course the written address). Now, the claimant wants “an order of perpetual injunction restraining the defendant whether by themselves, agents, privies”; and I ask: restraining the defendant from what or in respect of what? The Court is not told. This aside, in considering the merit of the case, I need to first resolve the issue of jurisdiction raised by the defendant when it was addressing its issue 1. In the first place, I do not think that the defendant understands the essence of the claimant’s case. The defendant spent quite some ink in justifying the dismissal of the claimant in terms of the terms and conditions of the claimant’s employment. It is not the case of the claimant that the defendant properly constituted has no power to terminate the claimant’s employment or dismiss him from service. The case of the claimant is that there is a valid Court order, against which the defendant acted to dismiss him from service. It is failure to appreciate this point that yielded in the defendant raising the issue of jurisdiction or competence of this Court to hear and determine this case. To the defendant, this Court cannot determine this case since in doing that it will have to decide whether the interim management board of the defendant was legally constituted; and since this is in the province of the jurisdictional mandate of the Federal High Court, this Court cannot delve into that question. Far from it, this Court is not called upon to determine the validity or otherwise of the interim management board. It is called upon to determine whether in breach of a Court order the defendant dismissed the claimant. The key thing to look at here and interpret is the Court order in question. It is not the place of this Court to even inquire into the merit of the order. It suffices that the order was given and the acts of the defendant complained of were done when the Court order in issue subsisted. Case law authorities are clear that as part of the conditions an employee needs to prove when complaining about an unlawful or wrongful dismissal or termination is who can appoint him and who can remove him, and that his appointment can only be determined by a person or authority other than the defendant. See Adams v. LSDPC [2000] 5 NWLR (Pt. 656) 291 CA, Emokpae v. University of Benin [2002] 17 NWLR (Pt. 795) CA, Ujam v. IMT [2007] 2 NWLR (Pt. 1019) 470 CA and NRW Ind. Ltd v. Akingbulugbe [2011] 11 NWLR (Pt. 1257) 131 CA. What the claimant is presently praying the Court is that when the defendant dismissed him, it could not have validly done that given the Court order in question. This is what the Court is being asked to look into; and in respect of which I find and hold that this Court has the jurisdiction and competence to hear and determine. Reference by the defendant to the cases of Skenconsult (Nig.) Limited v. Ukey [1981] 1 SC 6 and Omisade v. Akande [1987] 2 NWLR (Pt. 55) 158 is merely to mislead this Court. The cases predate the Third Alteration to the 1999 Constitution, under which any issue within the jurisdictional competence of this Court takes precedence over any under the jurisdictional mandate of the High Courts. I consequently do not see any merit in the argument of the defendant as to this Court’s jurisdiction and competence to hear and determine this case. The argument of the defendant in that regard is accordingly dismissed. The claimant’s case, I repeat, is that as at the time his employment was purportedly terminated the interim board of the defendant appointed by PENCOM which included the Acting Managing Director/Chief Executive Officer, Mr. Chima Akalezi, had been restrained by orders of Court from assuming the powers of the Board of the defendant and, therefore, had no power to constitute the ad hoc committee to investigate him and following there from terminate his employment. To support his case, the claimant had relied on Exhibit F, a letter purportedly written by P. C. Okorie for the Honurable Attorney-General of the Federation and Minister of Justice to M. K. Ahmad, Director-General of PENCOM dated 8th September 2011. The problem here is that the copy frontloaded by the claimant is one that bears no signature of the said P. C. Okorie. The claimant did not tender any other copy that is signed. The law is that an unsigned document has no evidential value. See Edilco (Nig.) Ltd v. UBA Plc [2000] FWLR (Pt. 21) 792. The natural conclusion, therefore, is that Exhibit F, being unsigned, has no evidential value for purposes of this judgment; and I so find and hold. Exhibit F will accordingly be discountenanced for purposes of this judgment. In considering the case of the claimant, I must correct a misconception on the part of the claimant. The claimant had argued that if this Court makes a finding that the orders of Court in issue and made against the defendant and PENCOM by the Federal High Court in Suits Nos. FHC/L/CS/1035/11 and FHC/ABJ/CS/709/11 and the directives of the Attorney-General as contained in the letters of 17th August 2011 and 8th September 2011 restraining the defendant and PENCOM from constituting the purported interim management committee and appointing the acting Managing Director were subsisting as at the date the claimant’s employment was terminated then this Court must hold that the deeds, acts and steps of the Acting Managing Director purportedly acting on behalf of the defendant in terminating the employment of the claimant are illegal, null and void and of no effect. In that wise too, that the letter of 15th December 2011 signed by Chima Akalezi purportedly on behalf of the defendant is accordingly null and void. The claimant even gave the reason why he was unable to attend the ad hoc committee set up by the defendant to investigate the alleged fraud as the subsisting orders of the various Courts and the directive of the Federal Attorney-General thereto. For emphasis, the claimant then argued that his alleged dismissal from the employment of the defendant was wrongful, illegal, null and void and a violation of the various Court orders/judgment and the directives of the Attorney-General of the Federation to the Pension Commission of Nigeria and the defendant not to constitute the purported interim management committee to manage the affairs of the defendant. From all of this, especially the italicized portions of the claimant’s submission, the claimant assumed that the interpretation of the Honourable Attorney-General of the Federation (HAGF) is not only sacrosanct but binding on this Court in terms of its claim before the Court. I must point out that it is wrong for counsel to the claimant to assume that it is for the HAGF to tell this Court what the orders of the Federal High Court signify, state or enjoin. Whatever, interpretation the Attorney-General of the Federation gave to the orders of the Federal High Court remains the view of the HAGF on the issue; certainly not one binding on the Court. The HAGF himself acknowledged this when in paragraph 5 of Exhibit E (the letter of the HAGF to M. K. Ahmad, Director-General of PENCOM dated 17th August 2011) he stated that having “carefully reviewed the said Court Order” it is his “considered opinion that the decisions and actions of PENCOM complained about are clearly in violation of the Order….” The point is that the HAGF’s view may or may not be representative of the correct statement of what the Court orders stated or signified. It is for this Court to determine for itself what the orders of the Federal High Court signified or said; and this, this Court will do. So the question for this Court’s determination is whether the orders of the Federal High Court as given in Suits Nos. FHC/L/CS/1035/11 and FHC/ABJ/CS/709/11 can be said to have invalidated the interim board of the defendant in a manner as to lead to the conclusion that there was no valid interim board to dismiss the claimant when he was so dismissed by the defendant. What then were the orders of the Federal High Court? Before going into the orders of the Court, I need to emphasize one point. The claimant’s dismissal came by way of Exhibit I, the letter of dismissal dated December 15, 2011. It is signed by Chima Akalezi, Ag. MC/CEO of the defendant company. It states in the first paragraph that the claimant has been dismissed with immediate effect i.e. effective from the date of the letter, 15th December 2011. The reason given for the dismissal is the criminal activities engaged in by the claimant whilst in the employment of the defendant. The letter ended with the demand for the return of the listed company properties in the possession of the claimant. For purposes of this suit, the point to note is that, and which is the case of the claimant, there were valid Court orders as at 15th December 2011 which when interpreted and applied would mean that the defendant had no power to dismiss him as doing that would go contrary to the said Court orders. Now as part of processes later filed in this suit is the judgment of Hon. Justice D. U. Okorowo of the Federal High Court delivered on 18th July 2012 in Derrick Roper and Novare Holdings (Proprietary) Limited v. National Pension Commission, The Attorney-General of the Federation and First Guarantee Pension Limited Suit No. FHC/ABJ/CS/709/2011. Since this judgment was delivered after the dismissal of the claimant, and it is not the case of the claimant that it is the order(s) of the Federal High Court as per the judgment of 18th July 2012 that the defendant acted against (see the claimant’s complaint and statement of facts), it means that I cannot look into this judgment in determining the merit of the claimant’s case in the present suit and as filed. The Court orders that are relevant for purposes of this judgment must, therefore, be other than the judgment of 18th July 2012 since it does not predate the claimant’s dismissal. By the claimant’s reckoning and argument, the relevant Court orders are the orders of Okorowo J. sitting at the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/709/11 given on 11th August 2011 and those of Abang J. of the Federal High Court sitting in Lagos in Suit No. FHC/L/CS/1035/11 and given on 28th November 2011. To the claimant, the Court orders in Suit No FHC/ABJ/CS/709/11 given on 11th of August 2011, four months before he was allegedly dismissed by the defendant, ordered the defendant and PENCOM against taking or directing the taking of any action flowing from the document titled “DRAFT FIRST GUARANTEE PENSIONS LIMITED TARGET EXAMINATION” and/or the mandate/directive issued at the meeting of 27th July 2011. That the mandate/directive in question was that with regards to actions, sanctions, measures and/or directions which may culminate in and/or penalties in the Draft First Guarantee Pensions Limited Target Examination. And by the Court orders in Suit No. FHC/L/CS/1035/11 (Exhibit C), Abang J. sitting in Lagos restrained the defendant from interfering with the assets of the defendant or taking any steps or giving effect to the decision communicated to the applicant in the letters dated 12th August 2011 and 22nd March 2011 respectively. Exhibit D is a letter dated 12th December 2011 of counsel to the claimant reminding the defendant of the “Order of the Honourable Court dated 30th day of November 2011 which is binding on…the officers of your company”. A number of things are evident here. One, there is no Court order dated 30th November 2011 before this Court. The Court order before this Court, and it is that of Hon, Justice O. E. Abang, is dated 28th November 2011 certainly not 30th November 2011. The copy of it, which is before this Court, was merely certified as a true copy on 30th November 2011. Two, Exhibit D is not dated 12th August 2011 and 22nd March 2011 as the written submission of the claimant appears to indicate. Lastly, if there are other letters dated 12th August 2011 and 22nd March 2011, they were not frontloaded before this Court. Which Court orders then did the claimant refer the Court to and which form the basis of this action? I indicated earlier that they are the orders in Suit No. FHC/ABJ/CS/709/11 given on 11th August 2011 and those in Suit No. FHC/L/CS/1035/11 and given on 28th November 2011. When the claimant filed this action, he frontloaded as Exhibit C the enrolled order of Hon. Justice Abang of 28th November 2011. Nothing else was frontloaded – not the record of proceedings that led to the enrolled order, not the full ruling that led to the enrolled order. So this Court is left with nothing but to interpret the orders in the enrolled order of 28th November 2011 to see if they say what the claimant says they say; of course not forgetting that the claimant first and foremost was not a party to Suit No. FHC/L/CS/1035/11. In the enrolled order of Hon. Justice Abang, the orders of the Court were – (1) That the 1st and 2nd Respondents are hereby retrained by themselves, their servants, agents, officers and representatives from interfering with and or dealing with the assets of the First Guarantee Pension Limited or taking any step or further actions in any form whatsoever or giving effect or any directives to the decision communicated to the Applicant in the letters dated the 12th day of August, 2011, 22nd March, 2011 respectively pending the hearing and determination of appeal filed by the Applicant on 25th October, 2011. (2) That the Applicant shall within 2 days file an undertaking to indemnify the Respondents by way of damages in the event that this Order ought not to have been made. (3) That the Applicant shall compile and transmit Record of Appeal to the Court of Appeal within 90 days from 25th October, 2011. Now, I indicated earlier that “the letters dated the 12th day of August, 2011, 22nd March, 2011” are not before the Court; the proceedings giving rise to the orders are not before the Court; and the full ruling giving rise to the orders is not before the Court. How then is this Court to decide that an order restraining PENCOM and the HAGF (“the 1st and 2nd Respondents”) “by themselves, their servants, agents, officers and representatives from interfering with and or dealing with the assets of the First Guarantee Pension Limited or taking any step or further actions in any form whatsoever or giving effect or any directives to the decision communicated to the Applicant in the letters dated the 12th day of August, 2011, 22nd March, 2011 respectively…” is one that says those who dismissed the claimant are illegally or unlawfully in office? Or that PENCOM had no power to appoint an Interim Management Board for First Guarantee Pension Ltd, the defendant in the instant suit? The letters dated the 12th day of August, 2011, 22nd March, 2011 are not before this Court in order for the Court to determine the directives they communicated to see if the claims of the claimant are actually as he claims? As it is, I cannot give flesh or any meaning to the order of Hon. Justice Abang in terms of the claim of the claimant in the instant suit. Hon. Justice Abang ordered that PENCOM and the HAGF are not to interfere or deal with assets of First Guarantee Pension Ltd. This Court has not been told how this order impacts on the claims of the claimant in the instant suit. Next, Hon. Justice Abang ordered that PENCOM and the HAGF are not to take any step or further action in any form or give effect or directive to the decisions communicated to First Guarantee Pension Ltd “in the letters dated the 12th day of August, 2011, 22nd March, 2011 respectively”. What “the decisions communicated” are is not before this Court and as such has not been so proved. This being the case, this Court cannot in all fairness uphold the argument of the claimant that the orders of Hon. Justice Abang bear the meaning assigned to them by the claimant in this suit. Note, however, that orders (2) and (3) of Hon. Justice Abang as quoted earlier bear no relevance to the instant action. We are then left with the order of Hon. Justice Okorowo. To the claimant, Hon. Justice Okorowo in Suit No. FHC/ABJ/CS/709/11 between Derrick Ripper & anor v. National Pension Commission, Attorney-General of the Federation and First Guaranty Pension Ltd made the following orders against PENCOM and the HAGF – 1. An order of interim injunction restraining the 1st and 2nd respondents either acting by themselves or through their agents, servants, privies howsoever otherwise described from instigating, taking and/or directing the taking of any action, sanctions, measures and/or directions of any nature or type flowing from or preponderant to the document entitled “DRAFT FIRST GUARANTY PENSIONS LIMITED TARGET EXAMINATION” and/or the mandate/directive issued at the meeting of 27th July 2011 which actions, sanctions, measures and/or directions may culminate in, and/or is likely to result in the implementation of any of the recommendations, sanctions, and/or penalties in the DRAFT FIRST GUARANTY PENSIONS LIMITED TARGET EXAMINATION pending the hearing and determination of the Applicant’s Motion on Notice for interlocutory injunction. 2. An order of interim injunction restraining the 1st and 2nd respondents either acting by themselves or through their agents, servants, privies howsoever otherwise described from instigating, taking and/or directing the taking of any action, sanctions, measures and/or directions of any nature or type that will culminate in, and/or direct the taking of any action that will, or is likely to result in the removal of the 1st Applicant as a Director of the 3rd respondent and/or a breach of any of his fundamental rights as guaranteed under the 1999 Constitution of the Federal Republic of Nigeria pending the determination of the Motion on Notice for interlocutory injunction. 3. An order of interim injunction restraining the respondents from taking any further steps in connection with the subject matter of this suit and directing them to maintain status quo pending the determination of the Motion on Notice for interlocutory injunction. These interim orders according to the claimant were made on 11th August 2011 long before 15th December 2011 when he was dismissed. Once again, I must state that the claimant was not a party to Suit No. FHC/ABJ/CS/709/11. So it is only right that to know if he can claim the benefit of the interim orders so made, the proceedings of the case and the full ruling needs to be before the Court. Again, this is not the case; the claimant did not supply all of this to the Court. in fact, unlike Suit No. FHC/L/CS/1035/11, the enrolled order of Suit No. FHC/ABJ/CS/709/11 was not even submitted to this Court. Even aside from all of this, order 1 in Suit No. FHC/ABJ/CS/709/11 is hinged on the document entitled “DRAFT FIRST GUARANTY PENSIONS LIMITED TARGET EXAMINATION”. Once again, this document was not frontloaded before this Court. At the risk of repetition, the said order 1 of Hon. Justice Okorowo is that PENCOM and the HAGF are restrained “from instigating, taking and/or directing the taking of any action, sanctions, measures and/or directions of any nature or type flowing from or preponderant to the document entitled “DRAFT FIRST GUARANTY PENSIONS LIMITED TARGET EXAMINATION” and/or the mandate/directive issued at the meeting of 27th July 2011 which actions, sanctions, measures and/or directions may culminate in, and/or is likely to result in the implementation of any of the recommendations, sanctions, and/or penalties in the DRAFT FIRST GUARANTY PENSIONS LIMITED TARGET EXAMINATION”. Neither this draft document nor the mandate/directive issued at the meeting of 27th July 2011 is before this Court. So, how this Court is to ascertain that the draft document and the mandate/directive issued at the meeting of 27th July 2011 cover the claimant in the manner he claims has not been shown. The said order 2 of Hon. Justice Okorowo is to the effect that PENCOM and the HAGF are restrained “from instigating, taking and/or directing the taking of any action, sanctions, measures and/or directions of any nature or type that will culminate in, and/or direct the taking of any action that will, or is likely to result in the removal of the 1st Applicant as a Director of the 3rd respondent and/or a breach of any of his fundamental rights as guaranteed under the 1999 Constitution….” This order is specific to Derrick Ripper who is the 1st applicant in Suit No. FHC/ABJ/CS/709/11. The claimant did not tell this Court that he is the 1st applicant in Suit No. FHC/ABJ/CS/709/11 or how the said order applies to him. The said order 3 of Hon. Justice Okorowo is to the effect that all the respondents (including the defendant in the instant case) are restrained “from taking any further steps in connection with the subject matter of this suit and directing them to maintain status quo pending the determination of the Motion on Notice for interlocutory injunction”. I must point out that because the full proceedings of Suit No. FHC/ABJ/CS/709/11 was not submitted to this Court, there is no way the Court is to know what the subject matter of Suit No. FHC/ABJ/CS/709/11 was in order to know if the claimant can cash in on it in the manner argued in the instant case. It is the argument of the claimant that the Interim Management Board headed by Chima Akalezi as Ag. MD/CEO is illegal. In fact, that equally illegal is Chima Akalezi acting as the MD/CEO of the defendant when the claimant was dismissed. In all of this, there is nothing before this Court to authenticate this claim of illegality of both the Interim Management Board and its Ag. MD/CEO, Chima Akalezi. The closest to authenticating this claim of illegality is the reliance on the opinion of the HAGF in Exhibits E and F. I have already discountenanced Exhibit F. Exhibit E is hinged on Court orders that I have already explained away. I indicated earlier that as part of processes later filed in this suit is the judgment of Hon. Justice D. U. Okorowo delivered on 18th July 2012 in Derrick Roper and Novare Holdings (Proprietary) Limited v. National Pension Commission, The Attorney-General of the Federation and First Guarantee Pension Limited Suit No. FHC/ABJ/CS/709/2011. I took time to look more closely at the judgment of the Federal High Court of 18th July 2012. What I found out is that the case was filed by the applicants as a fundamental rights (specifically the right to fair hearing) infringement case, and filed under the Fundamental Rights (Enforcement Procedure) Rules; and was decided as such. See especially pages 71, 81 and 86 – 87 of the judgment. The alleged infringement of the right to fair hearing was personal to the applicants. The orders of the Court were given because the Court found that the right to fair hearing of the applicants was breached. How all of these personal right and orders of the applicants inure to the claimant in the instant case has not been shown and I could not see even from the judgment. The judgment is personal to the applicants and relates to the infringement of their right to fair hearing. I do not see how the claimant in the instant case can claim the benefit of the Federal High Court judgment (and it must be noted that in Suit No. FHC/ABJ/CS/709/2011 the Court found that the main claim was the enforcement of the fundamental right to fair hearing, not an employment case relating to dismissal) given that the claims of the claimant relate to his dismissal and hence the prayer for reinstatement. Secondly, even when the said document entitled “DRAFT FIRST GUARANTY PENSIONS LIMITED TARGET EXAMINATION” was considered in the Federal High Court judgment of 18th July 2012, it was considered only in relation to the applicants in that case; and although it was finally ruled out as a nullity being only a draft document on the authority of AG Kwara State v. Alao [2000] 9 NWLR 84, it still does not take away the fact that it was considered only in respect of the applicants in the case. I stated earlier that this document was not frontloaded in the instant case in order for this Court to ascertain whether it relates to the claimant or not. That being the case, there is no way that this Court can rely on the Federal High Court judgment of 18th July 2012 regarding Suit No. FHC/ABJ/CS/709/11 in the manner canvassed by the claimant. On the whole, therefore, I do not think that the claimant has been able to prove his case; and I so find and hold. I think that the claimant placed undue reliance on the opinion of the HAGF, which opinion I stated earlier is not binding on this Court, and the judgment of Hon. Justice Okorowo in Suit No. FHC/ABJ/CS/709/11 of 18th July 2012, which judgment is not the basis of the claimant’s case in the first place. In consequence, arguments of the claimant as to his right to protect the integrity of the defendant given section 41 of CAMA go to no issue as this Court, without more, is not the proper Court to inquire into the question whether the claimant can proceed against the defendant under section 41 of CAMA. I indicated earlier that case law authorities demand that for an employee to prove the termination of his employment or his dismissal is wrongful or null and void, he must prove who can appoint him and who can remove him, and that his appointment can only be determined by a person or authority other than the defendant. Since the claimant hinged his case on the interpretation of the Court orders he referred to as the basis for which his dismissal is null and void, and since I have explained away the Court orders, it means that the claimant has not succeeded in proving that his dismissal is null and void. Consequently, the argument of the claimant to the effect that his dismissal or alleged dismissal on the evidence before the Court and on the showing of the defendant is not for gross misconduct bordering or criminality, but for alleged “criminal activities...engaged in whilst in the employment of the company”, for which he ought to have been tried by a Court of law before it can be acted upon, is equally unhelpful since that is not even the case of the claimant in the first place. Even if it were, ATA Poly v. Maina [2005] 10 NWLR (Pt. 934) 487 CA held that it is neither necessary nor is it a requirement under the Constitution that before an employer summarily dismisses his employee from service, the employee must be tried before a court of law. It is accordingly my finding and holding that the claimant has not proved his case in order for this Court to grant the reliefs he claims. This leaves out the counterclaim of the defendant. In its counterclaim, the defendant is claiming for an order of this Court compelling the claimant to return in good condition the properties of the defendant in his possession, namely, car and keys, Blackberry and Simcard, identification card, health partners medical cards for the claimant and his family and all defendant’s documents in possession of the claimant. The defendant is also praying for an order of perpetual injunction restraining the claimant from parading himself as an officer of the defendant. Under cross-examination, the claimant denied having any of the defendant’s property still in his possession. To the claimant, while in the employ of the defendant he was given an official car, he was not given a Blackberry phone. He also acknowledged that he was given an identity card and a health partner’s card, the latter of which he has not returned. Now, beyond making the claims as per the counterclaim, the defendant placed nothing before the Court to authenticate the claims. For instance, what car and keys were given the claimant by the defendant that it is now asking for their return? The Court is not told. Even simple things such as the car’s registration number, type and model of the car, etc are not disclosed. And the defendant wants a court order. The defendant wants the return of Blackberry and Simcard. Again, the details of these items are not disclosed; and the defendant wants a Court order. Also to be returned are health partners medical cards, the nature of which the Court has not been shown and hence does not know. Further still, the defendant wants an order for the return of all its documents in possession of the claimant. Is the defendant actually expecting that a Court of law will grant a prayer such as this where the nature and identity of the documents are not disclosed? And for a defendant who dismissed the claimant to ask for a restraining order against the claimant from parading himself as an officer of the defendant leaves much to be desired. The defendant did not disclose to this Court what the claimant did after his dismissal to show that he was parading himself as an officer of the defendant aside from challenging the dismissal in this Court. This Court has severally complained about defence counsel who simply make counterclaims for the fun of it. It appears that counsel for the defendant in the instant suit simply filed a counterclaim for the fun of it. This is bad advocacy and says very little of counsel. A word is enough for the wise and discerning. On the whole, and for the reasons given, neither the claims of the claimant nor the counterclaim of the defendant succeed. Both are accordingly dismissed. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD