WD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

           HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A OJI

DATE: FRIDAY 19^TH JULY 2024                    SUIT NO: NICN/LA/92/2021

BETWEEN

DR. PIUS APERE                                                                         CLAIMANT

AND

LINKAGE ASSURANCE PLC                                                    DEFENDANT

Representation:

Bode Olanipekun SAN,with Faith Adarighofua and Yomi Adejuyigbe for the Claimant

Bimbo Atilola with Zaynad Abida and Micheal Obasikene for the Defendant

Introduction and Claims:     

1.   On 24^th February, 2021, the Claimant filed a General Complaint, Statement of Facts together Claimant’s List of Witnesses, the Claimant’s Witness Statement on Oath, Verifying Affidavit, List of Documents; all dated the same 24^th February, 2021 and copies of the documents to be relied on by Claimant at the trial of this suit. The Claimant claims against the Defendant as follows;

1.     A DECLARATION that the termination of the appointment of the Claimant as the Managing Director of the Defendant by the Defendant, in the Defendant’s letter to the Claimant dated 21^st June, 2018, is illegal, unlawful, unconstitutional, arbitrary, unconscionable, null and void and of no effect.

2.     AN ORDER setting aside the termination of the Claimant by the Defendant through the Defendant’s letter to the Claimant dated 21^st June, 2018.

3.     A DECLARATION that by the combined effect of the Claimant’s letter of engagement with the Defendant, and the policy of the Defendant which applies to the Claimant, as well as the usual corporate practice in (the Insurance Industry), the Claimant is entitled to his outstanding salaries and allowances for the two terms of 5 years each, of his engagement with the Defendant, as encapsulated in the Claimant’s Contract of Employment/Engagement dated 23^rd February, 2017, irrespective of the offer of three months’ salary to the Claimant in lieu of notice.

4.     A DECLARATION that the offer of a net severance benefit package of N45,537,297.13 (Forty Five Million, Five Hundred and Thirty Seven Thousand, Two Hundred and Ninety Seven Naira, Thirteen Kobo only) made to the Claimant by the Defendant vide the Defendant’s letter of September 11, 2018, falls short of the total sum of N334,577,401 (Three Hundred and Thirty Four Million, Five Hundred and Seventy Seven Thousand, Four Hundred and One Naira), being the net severance benefit payable to the Claimant by the Defendant, by a sum of N289,040,103.87 (Two Hundred and Eighty Nine Million, Forty Thousand, One Hundred and Three Naira, Eighty Seven Kobo).

5.     A DECLARATION that the Claimant is entitled to a cumulative sum of N334,577,401 (Three Hundred and Thirty Four Million, Five Hundred and Seventy Seven Thousand, Four Hundred and One Naira) (including the N48,443,099 (Forty Eight Million, Four Hundred and Forty Three Thousand, Ninety Nine Naira only), being the net severance benefit due and payable to the Claimant by the Defendant for the period of 21^st June, 2018 up to 22^nd February, 2027, being the due date of the end of his two term tenure as Managing Director of the Defendant.

6.     AN ORDER directing the Defendant to pay to the Claimant, the said sum of N334,577,401 (Three Hundred and Thirty Four Million, Five Hundred and Seventy Seven Thousand, Four Hundred and One Naira) (including the N48,443,099 (Forty Eight Million, Four Hundred and Forty Three Thousand, Ninety Nine Naira only), being the total net salaries, allowances and severance benefit payable to the Claimant by the Defendant for the period of 21^st June, 2018 up to 22^nd February, 2027.

7.     A DECLARATION that the Claimant is entitled to, amongst others, his two status cars (with particulars KSF319ER and KSF316ER), generator set, housing/furniture grants etc, all of which were/are part of his terms and perks of office as the Managing Director of the Defendant.

8.     AN ORDER directing the Defendant to release to the Claimant and/or allow the Claimant to retain possession of his two status cars (with particulars KSF319ER and KSF316ER), generator set, housing/furniture grants etc, all of which were/are part of his terms and perks of office as the Managing Director of the Defendant.

9.     Aggravated and exemplary Damages in the sum of 500,000,000 (Five Hundred Million Naira only).

10.           Cost of this action in the sum of N20,000,000 (Twenty Million Naira only).

2.  In response to the claims, the Defendant filed a Statement of Defence and counter-claim together with a list of Defendant’s witness and Defendant’s witness statement on oath deposed to by Mr Moses Omoregbe dated the 17^th June, 2022 and filed on the 18^th June, 2022 and list of documents and copies of documents to be relied on at the trial. The Defendant claimed against the Claimant in counter claim, as follows:

i           N55,312,500 (Fifty Five Million, Three Hundred and Twelve Thousand, Five Hundred Naira Only) being the total Net Book Value as at June, 2018 of the two official vehicles (Toyota Land Cruiser with Registration No. KSF319ER and Toyota Avensis with Registration No. KSF316ER) belonging to the Counter Claimant but wrongfully detained by the Defendant to the Counter Claim since June 2018 till date.

ii.         N12,000,000 (Twelve Million Naira only) damages for wrongful detention by the Defendant to the Counter Claim of the 2 official vehicles (Toyota Land Cruiser with Registration No. KSF319ER and Toyota Avensis with Registration No. KSF316ER) belonging to the Counter Claimant.

iii.       21% interest on relief (i) above computed from June 2018 till the date of judgment

3.  The Claimant filed a Reply to the Defendant’s Statement of Defence and defence to counter claim dated 8^th day of October 2021. The Defendant/Counter-Claimant filed a Reply to the Claimant’s defence to the counter claim dated 15^th day of November, 2021.  Trial commenced in the suit on Tuesday 22^nd day of March 2022.   The Claimant gave evidence for himself by adopting his witness statements on oath deposed to on the 24^th February, 2021 and 8^th October, 2021. The Claimant was cross-examined accordingly. During the examination in chief, the Claimant tendered in evidence, the following documents:

4.  The Defendant’s witness Mr Moses Omoregbe  gave evidence on 30^th June 2022 as DW1 by adopting his witness statements on oath dated 17^th June, 2021 and filed on the 18^th June, 2021 and the second dated 15^th November 2021.  He was subsequently cross-examined accordingly. The Defendant tendered the following Exhibits:

At the end of trial, the Court ordered the parties to file their respective final addresses. The Final Written Addresses were adopted on 21^st day of June 2024 and the Court adjourned for judgment.

THE CASE OF THE CLAIMANT

5.  The Claimant is an acclaimed Actuarial Scientist and Chartered Insurer, who is well-celebrated within and outside Nigeria. In 2011, the Claimant was appointed as Managing Director of Achor Actuarial Services Limited in London, and he held the office till 2013, when he was appointed as Deputy Managing Director of the Defendant. Sometime in November, 2016, the Defendant’s Board of Directors appointed the Claimant as Managing Director designate, to take effect from 1^st January, 2017, subject to confirmation from the National Insurance Commission (NAICOM). The Board duly notified NAICOM of Claimant’s appointment by a letter dated 14^th November, 2016.  After a series of internal regularization between the Defendant and NAICOM, the Claimant’s appointment as Managing Director of the Defendant was confirmed by NAICOM on 3^rd February, 2017.  The Defendant formally conveyed to the Claimant the approval of Claimant’s appointment by NAICOM which was to take effect from 3^rd February, 2017, vide a letter dated 23^rd February, 2017, and in the said letter, expressly stated that Claimant was so appointed as Managing Director of the Defendant for a tenure of two terms of five years each.  Whilst Claimant served as Managing Director of the Defendant, the Defendant experienced continued growth, with a share price appreciation of 32% in 2017. Under Claimant’s leadership, the sum of N1.28 Billion was added to the Defendant’s market capitalisation. On or about 10^th February, 2018, an anonymous petition written against the Claimant was circulated to stakeholders of the Defendant by email, and the said petition which was from an unknown source was purportedly investigated by the Defendant’s Board of Directors.  By a memorandum to the Chairman of Defendant’s Board of Directors dated 21^st February, 2018, and titled “Who are the Anonymous Petitioners”, Claimant complained about the misrepresentation against him in the anonymous petition, and got no response from the Board.  On 16^th March, 2018, the Defendant, by a letter titled “QUERY ON ISSUES REVEALED DURING FORENSIC INVESTIGATION INTO THE AFFAIRS OF THE COMPANY” queried the Claimant pursuant to a purported forensic investigation instituted by the Defendant, and asked the Claimant to respond to the query promptly.  In reaction to the Defendant’s letter of 16^th March, 2018, Claimant did a very elaborate response vide a letter dated 22^nd March, 2018, with some vital attachments and documents wherein Claimant debunked every tissue of allegation and falsehood contained in the purported forensic report.  The main reason for instituting a forensic investigation into the affairs of the Defendant was based on the anonymous petition written on or about 10^th February, 2018, to which the Claimant gave a response vide his memorandum of 21^st February, 2018. The forensic investigation (by an internal Auditor of the Company engaged by the Board of Directors) was carried out by the Board on the allegations contained in the said anonymous petition, and also on other allegations not stated in the said petition, which was manipulated for the purpose of achieving a targeted end, to wit, to find anything to indict the Claimant at all cost, in order to achieve the Board’s mandate of terminating Claimant’s appointment.  No copy of the said anonymous petition was formally made available to the Claimant by the Defendant, but the Defendant ensured that it was widely publicised, leading to the Claimant’s memo of 21^st February, 2018.

6.  The Claimant states that on 14^th February, 2018, and without any meeting of the Defendant’s Board of Directors on the said date (as there was no notice of meeting circulated to the Directors of the Company, Claimant inclusive), the Chairman of the Board requested the Claimant to proceed on a compulsory annual leave effective from 15^th February, 2018 to 29^th March, 2018, in order for the Board to carry out further investigations on the anonymous petition.  Prior to Claimant’s resumption on 29^th March, 2018, Claimant was asked, by the Chairman of the Defendant’s Board of Directors, to proceed on another 30 days annual leave of absence (this time without pay) effective on 29^th March, 2018. Before the expiration of the second compulsory and unpaid leave, he was suspended indefinitely without pay; vide a letter dated 30^th April, 2018 to take effect on the same date.  The Claimant further states that his suspension was irregular, and contrary to the governance process stated in the Defendant’s Employees’ Handbook, as the decision to suspend him was not reached after a regular meeting of the Defendant’s Board of Directors.  Throughout the process of investigating the anonymous petition against him, Claimant was not communicated to in writing by the Board of Directors, and he was not given the opportunity to react to the allegations contained in the anonymous petition.  On 21^st June, 2018, by a letter dated the same day, the Defendant summarily terminated Claimant’s appointment as Managing Director of the Defendant. The termination was purportedly based on Article 115 of the Articles of Association of the Defendant. The Claimant states he is entitled to salaries and allowances for the remaining eight years and eight months; amounting to N286,134,302 (Two Hundred and Eighty Six Million, One Hundred and Thirty Four Thousand, Three Hundred and Two Naira), and severance benefit in the sum of N48,443,099 (Forty Eight Million, Four Hundred and Forty Three Thousand, Ninety Nine Naira) totalling the sum of N334,577,401 (Three Hundred and Thirty Four Million, Five Hundred and Seventy Seven Thousand, Four Hundred and One Naira).  Rather than paying the Claimant the said sum of N334,577,401 (Three Hundred and Thirty Four Million, Five Hundred and Seventy Seven Thousand, Four Hundred and One Naira), Defendant, by a letter dated September 11, 2018, offered the Claimant a total severance benefit of N53,510,668.28: less a purported indebtedness of N7,973,371.15, bringing the net severance benefit offered by the Defendant to the Claimant to N45,537,297.13.

7.  The Claimant further states that the sum of N7,973,371.15 deducted as indebtedness from his net several benefit of N53,510,668.28 was a wrongly deducted sum. The correct amount of Claimant’s indebtedness is the sum of N5,067,569, and when said sum of N5,067,569 is deducted from N53,510,668.28, Claimant’s total net several benefit payable by the Defendant would amount to the sum of N48, 443,099.   The said sum of N45,537,297.13 (Forty Five Million, Five Hundred and Thirty Seven Thousand, Two Hundred and Ninety Seven Naira, Thirteen Kobo only) offered by the Defendant to the Claimant as net severance benefit payable, falls short of the total sum of N334,577,401 (Three Hundred and Thirty Four Million, Five Hundred and Seventy Seven Thousand, Four Hundred and One Naira), being the salaries, allowances and net severance benefit payable to the Claimant by the Defendant, by a sum of N289,040,103.87 (Two Hundred and Eighty Nine Million, Forty Thousand, One Hundred and Three Naira, Eighty Seven kobo).

8.  The Claimant responded to the Defendant’s offer of September 11, 2018, by a letter dated 21^st September, 2018, titled: “Re: Computation of Total Severance Benefit”; and in the said letter, Claimant drew the attention of the Defendant to certain fundamental issues regulating his tenure and terms of engagement, including terminal benefits paid to the former Managing Director (Mr. G.U.S Wiggle), severance benefits for Executive Directors as approved by the Defendant’s board on 13^th August, 2013; and other benefits.  The Claimant avers that his termination by the Defendant is illegal, wrongful and unconstitutional for several reasons; including:

i.                    Claimant, as the Managing Director of the Defendant, enjoyed a tenure which is statutorily covered and flavoured by the provisions of the Companies and Allied Matters Act (CAMA).

ii.                 Defendant did not comply with the mandatory provisions of CAMA before purporting to terminate the appointment of the Claimant.

iii.               The purported suspension of the Claimant by the Defendant was in violation and breach of the mandatory provisions and stipulations of the governance processes listed and or detailed in the Defendant’s Employee Handbook; as the decision to suspend the Claimant was not reached after a regular meeting of the Defendant’s Board of Directors; AND/OR, that no regular meeting of the Defendant’s Board of Directors was held to take a decision to suspend the Claimant.

iv.               During the purported investigation of the anonymous petition written against the Claimant, Claimant did not receive any invitation from the Defendant to defend any allegation against him which was being investigated by any panel; and neither was the Claimant given any opportunity to appear before the said panel to defend any allegation at all.

v.                 Defendant’s Board of Directors did not communicate to the Claimant by any means howsoever of any misdemeanour, error or any infractions against the Defendant’s policy that warranted Claimant’s purported termination.

vi.               As the Managing Director of the Defendant, Defendant did not serve on or extend to the Claimant any notice of the Defendant’s Board of Directors’ meeting, particularly, the one dated 21^st June, 2018, wherein the decision to terminate the appointment of the Claimant was purportedly reached, contrary to the first paragraph of the Defendant’s letter terminating the appointment of the Claimant, dated 21^st June, 2018.

vii.            The person (Joshua Bernard Fumudoh) who served as Chairman of the Defendant’s Board of Directors and presided over the meeting where the appointment of the Claimant was terminated was not a fit and proper person to so preside over the Defendant’s Board of Directors meeting, or act as the Chairman of the Defendant’s Board of Directors at all, on the grounds amongst others, that: 

a.      He was not appointed as Chairman of the Defendant in accordance with the law. 

b.     His appointment as Chairman of the Board of Directors was not approved by NAICOM. 

c.      Joshua Bernard Fumudoh who acted as the Chairman of the Defendant’s Board of Directors was also at the same time a Director in another Insurance Brokerage Firm (Topflight Insurance Brokers Limited), an act which is contrary to Section 12(2) of the Insurance Act, 2003, which the Defendant was aware of. Claimant will rely on the letter from the Corporate Affairs Commission dated 29^th December, 2020. 

d.     The entire meeting of 21^st June, 2018 whereat Defendant resolved to terminate the appointment of the Claimant was/is a nullity. 

viii.          Claimant was not given any hearing before the Board of Directors of the Defendant took a decision to terminate his appointment.

9.  Some critical shareholders of the Defendant, dissatisfied with the termination of the appointment of the Claimant, protested to NAICOM concerning the way and manner the Claimant’s appointment was terminated, vide a letter dated 30^th December, 2018, titled “RE: Self-inflicted Crisis, Corporate Governance Concerns and Future of Linkage Assurance Plc.”. 

.

CASE OF THE DEFENDANT

10.   It is the case of the Defendant that after the retirement of the Claimant in July, 2016 the Claimant was thereafter appointed as a contract staff in the capacity of a Deputy Managing Director, and subsequently got appointed as the Managing Director after the retirement of the then incumbent Managing Director. The Claimant’s tenure as a Managing Director was characterized with several gross misconduct which led to the petition written by the whistleblower to the Defendant. The Defendant’s audit team carried out investigation and several misconduct was found against the Defendant.  Thereafter, the Claimant was queried and was given opportunity to respond accordingly. The Defendant was not satisfied with the Claimant’s response which led to the Claimant’s suspension.  After several deliberations; the Defendant decided to terminate the Claimant’s employment. It is the Defendant’s case that before the meeting was held to terminate the Claimant’s employment as the Managing Director, a notice of the meeting was sent to the Claimant and because of the Claimant’s belief that the Defendant was going to determine his employment, he chose not to attend the meeting. It is the case of the Defendant that termination of the Claimant’s employment was in line with the Claimant’s letter of appointment and that the Claimant’s claim in respect of his appointment as a Director under CAMA, should be referred to the Federal High and that this Court does not have jurisdiction to hear any matter in respect of CAMA.

11.   The Defendant states that the Claimant could have been dismissed summarily for the offence he committed, but the Defendant chose to give him a soft landing and paid all the Claimant’s entitlement.  It is the case of the Defendant that the Managing Director of the Defendant is not entitled to automatic 10-year term, and that even where a Managing Director successfully completes the first term of 5 years, the renewal for the second term of another 5 years is not automatic, but subject to satisfactory performance, and entirely at the discretion of the Board of Directors of the Defendant.  The Defendant states that it is ridiculous for the Claimant to imagine that he is entitled to an automatic 10-year term as of right when his contract of employment clearly provides that a Managing Director has a maximum of two terms of five years, subject to satisfactory performance and which contract may be terminated by giving 3 months’ notice or 3 months basic salary in lieu of notice.  Further, it is the case of the Defendant that the former Managing Director referred to by the Claimant was disengaged as the Managing Director of the company after 16 years of meritorious, clean and unblemished service to the Defendant and that he retired from the company on the 31st December, 2016 but was rewarded with additional 6 months garden leave with pay which ended on 31st May, 2017, in recognition of his 16 years of honest, dedicated and unblemished service to the company and that the Claimant was sacked and should not expect more than what he deserved. 

12.   In its COUNTER CLAIM, it is the case of the Defendant that the two cars in the custody of the Claimant was given to the Claimant as a result of the Claimant being the Defendant’s Managing Director and after the termination of the Claimant’s employment, the Claimant has failed or refused to return the cars despite several demands.  The Claimant was allocated two status/official cars for his official use when the Claimant was the Managing Director of the Defendant, to wit Toyota Land Cruiser with Registration No: KSF319ER and Toyota Avensis with Registration No: KSF316 ER. The two cars are properties of the Counter Claimant and which must be returned by the Claimant/Defendant to the Counter Claimant upon the termination of the Claimant contract.  The Defendant to the Counter Claim has been using the vehicles recklessly and which has characterized with huge depreciation on the vehicles since the Claimant left the service of the company in June, 2018

THE CLAIMANT’S REPLY TO STATEMENT OF DEFENCE

13.   The Claimant replied that the sum of 22,798,036.27 which he was paid after retirement as the Deputy Managing Director of the Defendant was his legal entitlements from the Defendant and that the said sum was not part of the Claimant’s emoluments as Managing Director of the Defendant.  That a ‘garden leave’ was granted to Mr. G.U.S Wiggle for the purpose of completing his ten year tenure as MD/CEO of the Defendant in compliance with NAICOM’s directives in its letter to the Defendant dated 31^st January, 2017 which prescribed 1^st June, 2017 as the retirement date of Mr. G.U.S Wiggle, having taken into account the Defendant’s internal tenure policy and the Defendant’s letter of Re-Organization dated 25^th May 2007.  The Claimant replied that he was not sacked as claimed by the Defendant.  Upon institution of these proceedings, the Defendant is now generating reasons to retroactively validate its unlawful action. The Board took a decision on 20^th April, 2018 to suspend the Claimant after it had already notified the Claimant with a letter dated 19^th April 2018 to attend a later meeting scheduled for 27^th April, 2018. The Claimant was not in the Board meeting of 27^th April, 2018 neither was the Claimant invited to present a defence to any allegation leveled against the Claimant at the said Board meeting. Furthermore the alleged process of reviewing the allegations of gross misconduct against the Claimant is unknown and undocumented in any minutes of the Board of Directors. The process of reaching the purported decisions that the Claimant’s defence was “very unsatisfactory”, “very frivolous” and “a complete sham” was not stated. 

THE CLAIMANT’S DEFENCE TO COUNTER-CLAIM

14.  It is the case of the Claimant/Defendant to the counter claim that the Defendant has a Status Car Policy for its staff in grade levels of Principal Manager (PM) and above. At the expiration of a four-year amortization period, a new status car is purchased for the staff provided the staff is still in employment of the company. The staff is entitled to have the old car and the change of ownership is done immediately without deductions being made from the staff salary during the amortization period. The foregoing is part of the Defendant/Counter claimant’s severance package for its Executive Directors as agreed at the Minutes of the 44^th Board Meeting of Linkage Assurance Plc. dated 13^th August, 2013 and further confirmed by the Board of Directors of the Defendant/Counter Claimant at the meeting of the Board of Directors of Linkage Assurance Plc. of 10^th February, 2017.  It is the case of the Defendant to counter-Claim that he is entitled to the two vehicles because, the amortization period of four years in respect of the two vehicles will lapse during the first year tenure of the  two term tenure as the Managing Director of the Defendant.

THE COUNTER-CLAIMANT’S REPLY TO DEFENCE TO COUNTER –CLAIM

15.  The Counter-Claimant replied that the status car allocated if not fully amortized before the exit of the allotted staff from the Defendant's employment, the concerned staff is expected to pay the Net Book value of the unamortized portion before property in the vehicle can pass to the Staff and that the Net book Value of the Toyota Land Cruiser with Registration No. KSF319ER & Toyota Avensis with Registration No.KSF316ER in the Claimant's possession at the time of his termination in June 2018 are N41,875,000.00 (Forty One Million,Eight Hundred and Seventy Five Naira) and N13,4377,500.00(Thirteen Million Four Hundred and Thirty Seven Thousand, Five Hundred Naira) respectively, and the Claimant did not pay the Net Book value of the Cars at the time of his exit from the Defendant Company. More so, the Status cars allocated to the Claimant does not form part of his severance benefit package that he is entitled to, and he has not expressed his interest to retain same by paying the Net book Value at the time of the termination of his employment in June 2018.

SUBMISSIONS ON BEHALF OF THE DEFENDANT

16.  The Defendant raised seven issues for determination as follows:

1.     Whether the Claimant’s contract of employment gives him automatic 10 years tenure.

2.     Whether an alleged customary practice can be proved by a testimony of one witness.

3.     Whether the conducts of the Claimant, particularly the admitted payment of over N130,000,000.00 (One Hundred and Thirty Million Naira) in CASH as a purported “handling charges” to a “consultant” is not a gross misconduct deserving dismissal or termination as the case may be.

4.     Whether the Claimant was accorded fair hearing before his employment was terminated.

5.     Whether an employee who receives payment in lieu of notice can turn around to challenge his termination as wrongful or unlawful.

6.     Whether the Claimant has proved his case to be entitled to the reliefs sought.

7.     Whether the Defendant has proved its counter claim.

17.  Issue one - Whether the Claimant’s contract of employment gives him automatic 10 years tenure?  The Defendant argued that Exhibit D2 is clear; and from the wording of the exhibit, the appointment of the Defendant after expiration of the first tenure is subject to satisfactory performance.  The Defendant further argues that there is a clause whereby the Claimant’s appointment can be terminated, implying that the Claimant’s appointment is not automatic at all. The Defendant submits that in the construction or interpretation of the content of a written document, the law is trite that same is to be given its ordinary, clear and literal interpretation where the words used therein are simple, clear and unambiguous.  The Defendant relied on the case of Okoye v. C.O.P (2015) LPELR-24675(SC) for this proposition.  The Defendant submits that where a contract of employment has been reduced into writing, as in this case, parties are bound by it and the Court has no duty to look outside the terms of the contract in the determination of the rights and obligations of the parties to the contract. The Defendant relied on the case of Nig. Security Printing and Minting Plc v. Olaleye (2020) LPELR-50409(CA).

18.  Issue two - whether an alleged customary practice can be proved by a testimony of one witness?  The Defendant argued that the Claimant has failed to prove the allegedly customary practice of the Defendant to pay the Managing Director mandatory salary for the two terms of five years as a Managing Director. That the testimony of one witness is not sufficient, more so when it is the Claimant that asserts the existence of an alleged insurance industry practice.  The Defendant argues that an expert witness should have been called from the industry as enjoined by section 18 (2) of the Evidence Act.   The Defendant submits that the Court of Appeal and the Supreme Court have consistently held that an alleged “customary practice” or “common practice” must be proved by the testimony of a person other than the party asserting the existence of the alleged custom. The Defendant relied on the case of Plateau State Board of Internal Revenue v. Marah (2020) LPELR-50324(CA). The Defendant submits that the alleged customary practice (payment of unearned salaries and emoluments, official car gift etc) in the (a) Defendant’s company and (b) Nigerian or global industry practice cannot be proved with the testimony of the Claimant only.

19.  Issue Three - whether the conducts of the Claimant, particularly the admitted payment of over N130,000,000.00 (One Hundred and Thirty Million Naira) in CASH as a purported “handling charges” to a “consultant” is not a gross misconduct deserving dismissal or termination as the case may be?  The Defendant argued that the Claimant admitted payment of over N130,000,000.00 (One Hundred and Thirty Million Naira) in CASH as a purported “handling charges” to a “consultant” and that the only defence in the Query issued to the Claimant was that no mode of carrying out the transaction was prescribed by the Board of Directors and as such he decided to do it in  raw cash.  The Defendant submits that paragraph 11.2.4 (a) of  Exhibit D10 (Defendant Employee Handbook) provides that there are certain offences which are covered by the broad headings of gross/serious misconduct which, on commission may lead to summary dismissal; and such offences include, (a) proven cases of theft, fraud, dishonesty, and irregular practices in respect of cash, vouchers, records, returns or clients’ claims and settlements; and (i) any other offence(s) which the Management may consider gravely prejudicial to the interest of the company.  The Defendant submits that following from the above provision of the Defendant’s Hand book, it is crystal clear that the action of the Claimant who holds a doctorate degree in Actuarial Science and claims to be a “globally acclaimed expert” is such very grave unethical practice.

20.  Issue four - Whether the Claimant was accorded fair hearing before his termination?  The Defendant argued that after a petition was received against the Defendant, the Defendant carried out investigation which led to the issuance of query to the Claimant and having issued query and response was received, it served the purpose of granting fair hearing to the Claimant.  The Defendant referred to the case of Imonikhe v. Unity Bank PLC (2011) LPELR-1503(SC) as confirming that fair hearing can be satisfied by issuance of query just as it was done in the instant case.  The Defendant urged the Court to hold in the light of the above case, that having given the Claimant the opportunity to defend himself on the allegations levied against him and having considered his response which was circulated among members of the Board of Directors of the Defendant, and following its meeting terminating the Claimant’s employment, the requirement of fair hearing is satisfied in this case.

21.  Issue five - whether an employee who receives payment in lieu of notice can turn around to challenge his termination as wrongful or unlawful?  The Defendant argued that the Claimant’s contract of employment clearly states that either party may terminate the contract of employment by giving three (3) months’ notice or 3 months’ basic salary in lieu of notice and having paid three months in lieu of notice to the Claimant, the Claimant has lost the right of action for wrongful or unlawful termination of employment.   The Defendant submits that it is settled law that an employee who accepts salary in lieu of notice cannot thereafter validly challenge his termination as being wrongful or unlawful. The Defendant relied on the case of Odiase v. Auchi Polytechnic (1998) 4 NWLR (Pt.547) p.477 at 490.

22.  Issue six - whether the Claimant has proved his case to be entitled to the reliefs sought?  The Defendant argued that the Claimant has failed to prove his case by cogent evidence.  That, it is only when a Claimant makes out a case that the burden of proof now shifts to the Defendant to adduce counter evidence in opposition to the Claimant’s evidence and sustain its defence. Where the Claimant fails to make out a case, then there is nothing for the Defendant to rebut and the case is liable to be dismissed. The Defendant relied on the case of Okomu Oil Palm Company Limited v. O. S. Iserhienrhien (2001) 6 NWLR (pt.710) 660 at 674.

23.  Issue seven - whether the Defendant has proved its counter claim?  The Defendant argued that cursory looking at exhibits 16,17, 18, and 19 will reveal that the Defendant is the owner of the two cars retained by the Claimant after the termination of the Claimant’s employment and the procedure for the Claimant to own the cars has not been followed.  The Claimant had failed to establish the ownership of the two cars and is liable to the Defendant for unlawfully using the cars after termination of his employment. 

SUBMISSIONS ON BEHALF OF THE CLAIMANT

24.  The Claimant raised three issues for determination as follows:

(i)               Having regard to the provisions of Sections 262 (1) & (2), and 266(1), (2), (3) & (4) of the Companies and Allied Matters Act, 1990,Laws of the Federation of Nigeria 2004, vis-à-vis the facts of this case, whether the termination of the appointment of the Claimant as the Managing Director of the Defendant is not unlawful, invalid, null and void?

(ii)            Considering the entire circumstances of the case, is the Claimant not entitled to the full payment of his outstanding salaries and allowances as well as his severance benefits for the unexpired term of his (stipulated) tenure as the Managing Director of the Defendant?

(iii)          Whether the Defendant’s counter-claim ought to be granted?

25.  Issue one - Having regard to the provisions of Sections 262 (1) & (2), and 266(1), (2), (3) & (4) of the Companies and Allied Matters Act, 1990, Laws of the Federation of Nigeria 2004, vis-à-vis the facts of this case, whether the termination of the appointment of the Claimant as the Managing Director of the Defendant is not unlawful, invalid, null and void?  The Claimant argued that by virtue of the provision of the CAMA that provides for the Claimant’s position as the Managing Director of the Defendant, it tantamount to the fact that the Claimant’s employment is statutorily flavoured and as a result, the Defendant must adhere to the procedure laid down before Claimant can be removed as the Managing Director. That section 266 of CAMA mandated the Defendant to serve a notice on the Claimant as the Managing Director before the Claimant  can be removed, and that failure to serve the notice on the Claimant  amounts to unlawful termination of the Claimant’s employment. The Claimant relied on the case of Longe V. FBN (2010) 6 NWLR (Pt. 1189) 1, A-G., Bendel v. Aideyan (1989) 4 NWLR (Pt. 118) 646 at 667; Gov., Kwara State V. Ojibara (2006) 18 NWLR (Pt. 1012) 645 at 660-662.  The Claimant also argued that this Court has jurisdiction to entertain this suit because the matter is related and incidental to labour as provided in section 254 on the Nigeria Constitution as amended.

26.  The Claimant also argued that the Defendant’s allegation that the Claimant’s employment was terminated based on misconduct is not on the letter of termination and also was not in the purported minute of the meeting where the decision to terminate the Claimant’s employment was raised. It is on record that the Defendant, by a letter dated September 11, 2018 (exhibit C17), offered the Claimant a total severance benefit of N53,510,668.28 which goes to show that termination for gross misconduct was not the case. In any event, the propriety of the payment by the Claimant of the sum of N130,000,000 in cash as handling charges to a Consultant is not in issue as it relates to the claim before this Court. The Claimant argues that it is not the duty of this Court to make a finding at this stage on whether it amounts to a gross misconduct deserving of a dismissal or termination. What the Defendant is attempting to do is proffer ‘medicine after death’ subsequent to the concluded action of termination of Claimant’s appointment, which is not an answer to whether or not an extant provision of law was obeyed.

27.  Issue two - Considering the entire circumstances of the case, is the Claimant not entitled to the full payment of his outstanding salaries and allowances as well as his severance benefits for the unexpired term of his (stipulated) tenure as the Managing Director of the Defendant?  The Claimant argued that according to the contract of employment, the Claimant’s employment is for a two term of five years each and that the Defendant having failed to comply with the procedure laid down in CAMA and the policy practice of the Defendant before a Managing Director can be removed, the Claimant is entitled to the outstanding salary and severance packages for the remaining eight years and eight months into the Claimant’s tenure as Managing Director as agreed upon in the contract of employment.  The Claimant argued that in accordance with the Defendant’s tenure policy (two terms of five years each for the Managing Director), the Defendant admitted to NAICOM that though the appointment of Mr. G.U.S Wiggle was prematurely terminated on 31^st December, 2016 it resolved to pay Mr. G.U.S Wiggle the five months’ salary and severance benefits for the outstanding period of service (i.e. 1^st January, 2017 – 31^st May, 2017) in satisfaction of the tenure policy. More so the Defendant’s decision to pay Mr. G.U.S Wiggle his outstanding benefits was conveyed by a letter dated 3^rd March, 2017 (exhibit C6).  The Defendant represented to Mr. G.U.S Wiggle thus; “ the Board of Directors approved payment of your net salary from 1^st January 2017 up to May 31, 2017 (envisaged retirement date)”.  Exhibit C6 was conveyed to Mr. G.U.S Wiggle under the hand of the Claimant as Managing Director on the directive of the Defendant’s Board of Directors. By the combined reading of Defendant’s response to NAICOM of 31^st Januàry,2017 (exhibit C5) and its letter to Mr. G.U.S Wiggle dated 3^rd March,2017(exhibit C6) Defendant admitted, promised and/or assured NAICOM (and complied with same by paying Mr. G.U.S Wiggle). Thus, it is Defendant’s usual corporate practice to pay terminal benefits up to the envisaged retirement date. The Claimant relied on the case of Tade Abimbola Nig Ltd. v. FBN Plc. (2021) LPELR-55773(CA) Pp. 12-14 paras. D-D, where the Court of Appeal cited with approval the case of Maiyegun v. Governor of Lagos State (2011) 2 NWLR (Pt. 1230) P.154 at 170, wherein the Court espoused on the binding principle of promissory estoppel as a rule which a party will not be allowed to plead the opposite of a fact which he formerly asserted by words and conduct. 

28.  Issue three - whether the Defendant’s counter-claim ought to be granted?  The Claimant argues that the resolution of the Defendant’s Board of Directors reached at the 44^th Board Meeting of Linkage Assurance Plc. dated 13^th August, 2013 (exhibit C30) was that at the termination or retirement, the senior management staff members of the Defendant are entitled to the official vehicles (status cars) in their possession at the date of disengagement if the amortization period of four years has elapsed.  By the terms of Claimant’s contract of employment, the Claimant’s two terms of five years each would terminate on 22^nd February, 2027. The amortization period of four years for each of Claimant’s status cars – Toyota Land Cruiser with Registration No: KSF319ER and Toyota Avensis with Registration No: KSF316ER would have lapsed within the first year tenure of his two term tenure as the Managing Director. Furthermore where this Court sets aside the unlawful termination of Claimant’s appointment, Claimant would be placed de facto in the same position he is deemed to be de jure, and the counter-claim would naturally fail.

THE DEFENDANT’S REPLY ON POINTS OF LAW

29.  The Defendant replied that the Claimant’s cause of action in this suit is founded on his contract of employment and alleged customary practice. This is evidenced by the reliefs sought in his complaint and exhibits D2 (his contract of employment and Exhibit D16 - the Defendant’s Employee Handbook.  The Defendant argues that the Claimant did not give evidence that he had been removed as a director appointed under CAMA, a power vested in the General Meeting of the company (not the Board of Directors).  The Defendant argues that a Claimant who seeks to challenge his removal as a director must exhibit the following three documents;

a)    Ordinary resolution of the General Meeting removing him as a director.

b)    Form CAC 7A (Removal of Director)

c)     Returns filed at the Corporate Affairs Commission (CAC) to give effect to (a) and (b) above as enjoined by of CAMA.

The Defendant submits that since the Claimant did not tender any of the above important documents, the Counsel’s Final Address cannot be a substitute for that evidence, as held in Andrew v. INEC (2018) 9 NWLR (Pt. 1625) 507.  The Defendant argues that the Claimant’s letter of termination made it clear that what was terminated was the Claimant’s contract of employment as the MD/CEO dated 23^rd February 2017.

30.  The Defendant further argues that the National Industrial Court would have no jurisdiction over removal of a director under CAMA as that falls under the exclusive jurisdiction of the Federal High Court under Section 251 of the Constitution. The Defendant distinguished the case of Longe v. First Bank relied on by the Claimant in that the Claimant’s case in Longe v. FBN (2010) 6NWLR (Pt. 1189) was founded absolutely on removal of a Director under CAMA, hence the Claimant approached the Federal High Court for the determination of the case; and that contrary to the submission of Counsel, Section 254 (c) (1) does not donate to the NICN jurisdiction over Companies and Allied Matters Act. The Defendant reiterated that a director appointed under CAMA is not an employee; rather, he is an investor or representatives of investors and a co-owner of the company.   The Defendant submits that, assuming without conceding that this Honourable Court has jurisdiction over removal of a director under CAMA,  the Defendant complied with Section 266 of CAMA (now Section 292 of CAMA 2020) relating to requirement of notice of meetings of the Board of Directors and that there are both documentary and oral evidence before this Court showing that the Claimant was served with the notice of the Board Meeting which held on the 21^st of June, 2018 during which the Claimant’s contract of employment as the MD/CEO was terminated.

COURT’S DECISION

31.  I read carefully and considered the processes filed in this case, the evidence led, the written submissions and authorities cited by Counsel in their final written addresses.  I also heard the evidence of the two witnesses called in this matter.  In addition, I evaluated all the exhibits tendered and admitted.  Having done all this, I set the following issues down for determination:

(I)                           What instrument regulates the Claimant’s relationship with the Defendant, and therefore the determination of that relationship?

(II)                        What is the Duration of the Claimant’s Employment?

(III)                     What is the nature of Claimant’s Disengagement from the Defendant?  Was it a termination or a dismissal? 

(IV)                    Whether the Claimant is entitled to his claims in this suit?

(V)                       Whether the Defendant is entitled to its counter-claim?

32.  Issue one - What instrument regulates the Claimant’s relationship with the Defendant, and therefore the determination of that relationship?  It is important to determine the documents that regulate the Claimant’s employment.  This is because of Claimant’s reference to the illegality and unlawfulness of Defendant’s termination of his employment; and his Counsel’s submission that the Companies and Allied Matters Act applied to Claimant’s employment.  The Claimant’s Counsel argued that as the Managing Director of the Defendant, he enjoyed a tenure which is statutorily covered and flavoured by the provisions of the Companies and Allied Matters Act (CAMA).  Learned Senior Counsel to the Defendant argues that the Companies and Allied Matters Act (CAMA) does not apply to the office the Claimant held.   Learned Silk; Counsel to the Claimant in addition to referring to Sections 279 and 262 of CAMA, as authority for challenging the removal of the Claimant, indicated during adumbration while adopting his final written address, that he will submit more sections of the Company and Allied Matters Act (CAMA) as authority that the Claimant’s employment has statutory flavour; and that that statute is the CAMA.  Learned Silk has submitted the following sections of CAMA:  sections 88, 89, 90, 93, 289, 294, 314 and 315.  The issue really is; if the Claimant’s employment/office is established by the CAMA, in such a way that his employment and determination of his employment needs to comply with the provision of CAMA.  Claimant’s argument is that Claimant being a Managing Director, is also a Director and his duties and functions are regulated by CAMA; while the Defendant argues that the Claimant was not a Director in the Defendant, and he was removed as Managing Director, pursuant to his letter of appointment, and that he was not removed as a Director.  The Defendant further argues that the case brought by the Claimant to this Court is actually his removal as Managing Director.  The provisions of CAMA referred to by the Claimant, provide:

262.   Removal of directors

(1)  A company may by ordinary resolution remove a director before the expiration of his period of office, notwithstanding anything in its articles or in any agreement between it and him.

279.   Duties of directors

(1)  A director of a company stands in a fiduciary relationship towards the company and shall observe the utmost good faith towards the company in any transaction with it or on its behalf.

33.  The above provisions clearly relate to the office of a Director; and not a Managing Director.  Judging from the Claimant’s reliefs in this suit, he did not present a case of his removal as a Director of the Defendant.  The Claimant did not lead evidence to show that he was a Director in the Defendant; or that he was removed as a Director appointed under CAMA, a power vested in the General Meeting of the company (not the Board of Directors). I agree with the Defendant that a Claimant who seeks to challenge his removal as a Director must, in addition to establishing his status as such a Director, exhibit the following three documents:

a)    Ordinary resolution of the General Meeting removing him as a director.

b)    Form CAC 7A (Removal of Director)

c)     Returns filed at the Corporate Affairs Commission (CAC) to give effect to (a) and (b) above as enjoined by of CAMA.

34.  The Claimant did not establish his status as a Director; nor tender any of the above important documents. Exhibit C8 (letter of termination) issued to the Claimant by the Defendant only evidences the termination of his contract of employment as Managing Director, not removal as a director.    By Claimant’s failure to prove his status as a Director, the Claimant cannot be categorised as a Director; to be subject to the removal procedure of a Director stipulated in the CAMA.  I am aware of the case of Longe v. FBN (2010) 6 NWLR (Pt. 1189) 1 cited by the Claimant.  This case is different from the case of Longe v. FBN (supra) because in this present case, the Claimant has not been shown to be a Director in the Defendant; whereas in Longe v. FBN, the Claimant’s action was founded absolutely on his removal as a Director contrary to the provisions of CAMA.  While it is possible for a Director to also be a Managing Director, it is also possible for a Managing Director not to be a Director, as shown in this case.  Sections 88, 89, 90, 93, 289, 294, 314 and 315 of CAMA, were also referred to by the Claimant, as relevant to show that the Claimant’s employment as Managing Director is founded on the CAMA.  The sections provide as follows:

64.   Delegation to committees and managing directors

Unless otherwise provided in this Act or in the articles, the board of directors may—

       (a)        exercise their powers through committees consisting of such members of the body as they think fit; or

       (b)        from time to time, appoint one or more of their body to the office of managing director and may delegate all or any of their powers to such managing director.

Liability for acts of the company

65.   Acts of general meeting, board of directors, or of managing directors

Any act of the members in general meeting, the board of directors, or of a managing director while carrying on in the usual way the business of the company, shall be treated as the act of the company itself and the company shall be criminally and civilly liable therefor to the same extent as if it were a natural person:

Provided that—

66.   Acts of officers or agents

(1)  Except as provided in section 65 of this Act, the acts of any officer or agent of a company shall not be deemed to be acts of the company, unless—

   (a)        the company, acting through its members in general meeting, board of directors, or managing director, shall have expressly or impliedly authorised such officer or agent to act in the matter; or

       (b)        the company, acting as mentioned in paragraph (a) of this subsection, shall have represented the officer or agent as having its authority to act in the matter, in which event the company shall be civilly liable to any person who has entered into the transaction in reliance on such representation unless such person had actual knowledge that the officer or agent had no authority or unless having regard to his position with or relationship to the company, he ought to have known of such absence of authority.

69.   Presumptions of regularity

Any person having dealings with a company or with someone deriving title under the company, shall be entitled to make the following assumptions and the company and those deriving title under it shall be estopped from denying their truth that—

       (a)        the company’s memorandum and articles have been duly complied with;

       (b)        every person described in the particulars filed with the Commission pursuant to sections 35 and 292 of this Act as a director, managing director or secretary of the company, or represented by the company, acting through its members in general meeting, board of directors, or managing director, as an officer or agent of the company, has been duly appointed and has authority to exercise the powers and perform the duties customarily exercised or performed by a director, managing director, or secretary of a company carrying on business of the type carried on by the company or customarily exercised or performed by an officer or agent of the type concerned;

263.   Proceedings of directors

(1)  The directors may meet together for the despatch of business, adjourn and otherwise regulate their meetings as they think fit:

Provided that the first meeting of the directors shall be held not later than six months after the incorporation of the company.

268.   Remuneration of a managing director

(1)  A managing director shall receive such remuneration (whether by way of salary, commission or participation in profits, or partly in one way and partly in another) as the directors may determine.

(2)  Where a managing director is removed for any reason whatsoever under section 262 of this Act, he shall have a claim for breach of contract if there is any or where a contract could be inferred from the terms of the articles.

(3)  Where he performs some services without a contract, he shall be entitled to payment on a quantum meruit.

288.   Directors with unlimited liability in respect of a limited company

(1)  In a limited company the liability of the directors or managers or of the managing director, may, if so provided by the memorandum, be unlimited.

289.   Special resolution of limited company making liability of directors unlimited

(1)  A limited company, if so authorised by its articles, may, by special resolution, alter its memorandum so as to render unlimited the liability of its directors or managers, or of any managing director.

35.  Going through the reproduced sections of the CAMA cited by the Claimant; shows that the CAMA in those sections refers mainly to Directors; which I have found the Claimant is not.  See particularly sections 263, 288 and 289, which refer to powers of the Directors, exercisable as provided by the Memorandum and Articles of Association of the company.  Sections 64, 65 and 66 refer to acts that may be attributable to the Defendant.  None of these sections refers to the appointment, and removal of a Managing Director.  The only section that talks about the removal of a Managing Director is section 268, which provides that:

268.   Remuneration of a managing director

(1)  A managing director shall receive such remuneration (whether by way of salary, commission or participation in profits, or partly in one way and partly in another) as the directors may determine.

(2)  Where a managing director is removed for any reason whatsoever under section 262 of this Act, he shall have a claim for breach of contract if there is any or where a contract could be inferred from the terms of the articles.

(3)  Where he performs some services without a contract, he shall be entitled to payment on a quantum meruit.

36.  Section 268 above does not help the case of the Claimant.  It refers to the situation where a Managing Director is also a Director; which is not the case here.  In all, this Claimant has not established that his appointment was made under CAMA, requiring compliance with CAMA, for his removal.  The Claimant had cited the cases of The Vessel MT Sam Purpose (Ex Mt. Tapti) & Anor v. Bains & Ors (2021) LPELR-56460(CA) (PP. 26-30 PARAS. A) Anthony Dinisco v. HD Enterprise & Anor (2022) LPELR-57640(CA),  C.B.N. v. Dinneh (2021) 15 NWLR (Pt. 1798) 9, and  Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 1590) 24 at 173; to justify his argument that this Court should exercise jurisdiction over this suit, and his perceived removal as a Director of the Defendant, and apply the provisions of CAMA to the Claimant.  Being that I have found that it is the Claimant’s appointment letter that is applicable to this suit, and that there is nothing to show that he was a Director in the Defendant and was removed as such, there is no more need to determine the jurisdiction of this Court to apply the CAMA, in the circumstances of this finding.

37.  From the preponderance of evidence before this Court, the Claimant was appointed the Managing Director of the Defendant effective 1^st January, 2017 and functioned as such, until his removal in June 2018(via exhibit C16).  This is shown in exhibit C1(Claimant’s Resume), exhibit C8(Appointment as a Managing Director) and a deluge of other documents, all addressing the Claimant as the Managing Director of the Defendant, within the relevant period.     The Claimant’s employment as Managing Director, is therefore regulated by his appointment letter(exhibit C8) and the Defendant’s Employees Handbook (exhibit C17).

38.  Issue Two – What is the Duration of the Claimant’s Employment?  The Claimant raised the issue if considering the entire circumstances of the case, the Claimant is not entitled to the full payment of his outstanding salaries and allowances as well as his severance benefits for the unexpired term of his (stipulated) tenure as the Managing Director of the Defendant?  The Claimant’s argument is that from his contract of employment, the internal policy of the Defendant and the usual corporate practice of the Defendant as affirmed by it to its Regulators – National Insurance Commission (NAICOM) in similar circumstances, that his employment is for ten years made up of two terms of five years.  The Claimant thus argues that having been terminated before the ten years due to him by his contract of employment; he is entitled to the wages he would have earned for the unexpired period.

39.  To determine the intention of the parties on the duration of the Claimant’s employment, we have to consider the three grounds the Claimant relied on and how they apply to the Claimant.  First is the Claimant’s appointment letter(exhibit 8).  Exhibit C8 provides the term of Claimant’s employment as follows:

Term:  A maximum of two (2) terms of five (5) years subject to satisfactory performance.

The same exhibit C8 provides for termination of the contract, as follows:

Termination:  This appointment may be terminated by either party at any time by giving the other, three (3) months’ notice in writing or one(3) months’ basic salary in lieu of notice.  In cases involving gross misconduct as stated in the employee handbook, the Board may decide on a summary dismissal and in such instance, you will not be entitled to a notice period or payment in lieu of notice.

40.  In my considered view, the provision on tenure gives the Claimant the opportunity to serve for up to two tenures of five years each, and not more.  It however does not make it an absolute right, as it subjects the possibility of serving the two terms, to satisfactory performance.  That means that where performance is adjudged unsatisfactory, then the two terms of five years each, can no longer apply.  Further, the provision for termination in Claimant’s contract means that despite being given the opportunity to serve for up to two terms of ten years, the Claimant may be terminated by the giving of three months’ notice.  It also provides for dismissal for gross misconduct.  This again means that in appropriate circumstances, the Claimant may be terminated or dismissed.  The Claimant’s appointment as Managing Director is therefore not for an automatic two terms of five years. 

41.  The Claimant also sought to rely on the fact that his predecessor in office was paid for the balance of his two tenures of five years, when he was terminated 6 months before the completion of his tenth year.  The Claimant relied on exhibit C5, Defendant’s letter to its regulator; National Insurance Commission (NAICOM) and argued that:

Whereas as at the time of the disengagement of the previous Managing Director of the Defendant (Mr. G.U.S Wiggle), NAICOM queried the Defendant for terminating/disengaging him before the end of his tenure, vide a letter dated 31^st January, 2017 (exhibit C4); and by the Defendant’s response of 31^st January, 2017 (exhibit C5), Defendant admitted and/or promised NAICOM that “The board has decided to settle his [Mr. G.U.S Wiggle] terminal benefits up to 1^st June, 2017, which is also the usual corporate practice.

The Claimant only stated some parts of the Defendant’s reason given to NAICOM for paying his predecessor for the unexpired period.  In exhibit C5, the Defendant wrote:

RE:  BOARD OF DIRECTORS VISIT TO NAICOM

We acknowledge the receipt of your mail dated 31^st January 2017.  Please find below information in respect of your letter:

1.     Reasons for disengaging the former MD/CEO prior to the 10^th year anniversary which is June 1^st , 2017 as per internal policy that the MD shall have a maximum of 2 terms of 5 years each:

Central Insurance Company Ltd and Linkage Assurance Plc merged n 28^th of February 2007.  Prior to the merger Mr. GUS Wiggle was the Managing Director of Central Insurance Company Ltd (see attached employment dated May 3, 2000 – appendix 1) whie Mrs. Aniola Durosinmi-Etti was the Acting Managing Director of Linkage Assurance Pc.  In order words after the merger Mr. Wingggle became the Managing Director on 28^th February 2007 (see attached 2005 Audited Account – appendix 2).

In May 25, 2007 he was given a redeployment/reorganization letter as Managing Director of Linkage Assurance Plc with effect from 1^st June 2007.  In other words, he has spent 16 years as Managing Director from his previous employment up date of exit on 31^st December 2016.

The Board’s internal governance resolution for max tenure of 2 terms of 5 years each was predicated upon:

(a)              NAICOM’s 2016 press briefing on the subject of executive tenure and succession.

(b)            ………….

(c)             The board’s conviction that regardless of whatever there was an explicit regulatory guidance or not, 10 years is a reasonable tenure for CEO’s and EDs.  This is borne out of practices in some other regulated industries in Nigeria and other jurisdictions.

(d)            The decision for his last functional date (31^st December 2016) to be earlier than 1^st June 2017 (as indicated in your letter dated 31^st January, 2017) is also in line with usual corporate practice of extended terminal of “garden” vacations for existing executives, which Mr. Wiggle accepted.

(e)             The Board has decided to settle his terminal benefits up to 1^st June, 2017, which is also the usual corporate practice

(f)              ……………..

42.  From paragraph (d) reproduced above, it is clear that the Defendant’s explanation for the unexpired months of his Predecessor’s tenure was given to him as “garden leave”, which was paid for, in accordance with usual corporate practice.  In effect, the Claimant’s predecessor served out his tenure; from exhibit C5.  Exhibit C5 also confirms that the Policy of the Defendant on term of office is for maximum period, and not minimum period.  I find from exhibits C8 and C5, that Claimant’s submission that he had a definite two terms of five years each, cast on stone, cannot hold.  That is not the intention of exhibit C5; and not a practice established by exhibit C8 or any other document before this Court.  I so hold.  Assuming such was established by practice to Claimant’s predecessor (which is not my finding), yet, the circumstance of Mr. Wiggle’s exit from the Defendant, is radically different from the Claimant’s exit, hence such a practice cannot be argued to be applicable to both of them.

43.  Issue Three - What is the nature of Claimant’s Disengagement from the Defendant?  Was it termination or a dismissal?  It is the case of the Claimant that the Defendant did not terminate his appointment for gross misconduct.   The Claimant refers to exhibit C16 (letter of termination of appointment) where the reason for termination was stated as:

“I write to inform you that the Board of Directors at an Emergency meeting held on 21^st of June, 2010 resolved to revoke your appointment as Managing Director/CEO of Linkage Assurance Plc in accordance with Article 115 of the Articles of Association of the Company…”

44.  The Claimant argues that evident in the letter of termination is that Claimant’s appointment was not terminated for gross misconduct.   The Claimant also refers to the minutes of the Defendant’s Board of Directors meeting held on 21^st June, 2018 (exhibit C27) during which the decision to terminate his appointment as MD/CEO was taken did not record deliberations on any gross misconduct or offence committed by the Claimant as being the reason for his termination.   The Claimant further argues that employees terminated for misconduct are usually not paid severance package and that it is on record that Defendant, by a letter dated September 11, 2018 (exhibit C17), offered the Claimant a total severance benefit of N53,510,668.28 which goes to show that termination for gross misconduct was not the case.

45.  On the other hand, the Defendant’s case on this issue is that the Claimant’s termination was on ground of misconduct, amounting to a sack, though it was not so stated on the letter informing him of the termination.  The Defendant argues that this fact is demonstrated by Exhibit D3 (Whistle blower petition dated 10^th February, 2008), Exhibit D4 (Claimant’s defence to the petition), Exhibit D5 (Query dated 16^th March, 2018), Exhibit D6 (Response to query by the Claimant), and Exhibit D9 (Letter of investigative suspension). The case of the Defendant is that the highlighted disciplinary procedures culminated to the Claimant’s sack and that the fact that the letter of termination did not rehearse the details of the gross misconduct is immaterial. The Defendant also stated that the gross misconduct of the Claimant should have ordinarily earned him summary dismissal with attendant loss of benefits, but the Defendant chose to be magnanimous with the Claimant, hence the letter of termination as against summary dismissal.

46.  Contrary to the practice in other jurisdictions of the world, our labour jurisprudence makes a distinction between termination and dismissal.  As was held by His Lordship Ogbuinya, JCA(now JSC)  in Alhaji M. K. v. First Bank of Nigeria Plc & anor [2011] LPELR-8971(CA) held:

The appellant's employment ought to have been terminated by the first respondent. The two employment terms, dismissal and termination, even though both put an end to employer-employee contractual relationship, are not coterminous. In the case of JOMBO v. P.E.F.M.B. (2005) 14 NWLR (Pt. 945) 443 at 467, Oguntade, JSC, drew the dichotomy between them this way:-

“Termination” or “Dismissal” of an employee by the employer translates into bringing the employment to an end. Under a termination of appointment, the employee is enabled to receive the terminal benefits under the contract of employment. The right to terminate or bring [an] employment to an end is mutual in that either may exercise it. “Dismissal” on the other hand is punitive and depending on the contract of employment very often entails a loss of terminal benefits. It also carries an unflattering opprobrium to the employee.

See also CBN & anor v. Mrs Agness M. Igwillo [2007] LPELR-835(SC); [2007] 14 NWLR (Pt. 1054) 393; [2007] 4-5 SC 158 at 200:

47.  It is important to note that the International Labour Organisation (ILO) uses the words “termination” and “dismissal” interchangeably. Under ILO jurisprudence, they mean one and the same. The ILO’s Convention 158 i.e. the Termination of Employment Convention 1982 No. 158 (C.158) and its accompanying Recommendation No. 166 (R.166), despite bearing in its name the word “termination”, in its discourse within ILO literature, would be found repeatedly references to unfair or unjustifiable dismissal. So when the ILO talks of unfair or unjustifiable dismissal, it equally denotes unfair or unjustifiable termination with the same results or consequences inuring. In Nigeria, termination and dismissal are not understood as meaning one and the same.  By virtue of the powers granted this Court by section 254C(1) (f), of the Constitution of the Federal Republic of Nigeria (3^rd Alteration Act), this Court has and exercises jurisdiction to the exclusion of any other Court in civil causes and matters; to apply international best practices in labour, employment and industrial relation matters.  As shown from the ILO jurisprudence, Her Ladyship Hon. Justice Nimpar, JCA in Ferdinand Dapaah & anor v. Stella Ayam Odey [2019] 16 ACELR 154 at page 181. held that the NIC “was also empowered by the Constitution to rely and apply international conventions which have close bearing to the claims related to workplace and labour matters…” Although Nigeria is yet to ratify C.158, there is no taking away the fact that it represents global standards on the matter; and section 7(6) of the NIC Act 2006 and section 254C(1)(f) and (h), and (2) of the 1999 Constitution operate to create and set a standard as a benchmark against which labour and industrial relations in Nigeria are to be measured. See Clement Abayomi Onitiju v. Lekki Concession Company Limited unreported Suit No. NICN/LA/130/2011, the judgment of which was delivered on 11th December 2018.  Pursuant to this, there is really no legal justification to continue to maintain the termination/dismissal distinction as we presently do and as is apparently canvassed in this case. 

48.  Despite the above, the Defendant’s handbook appears not to have a clear cut dichotomy between termination and dismissal.  At paragraph 11.2.3 it provides:

11.2.3  Suspension:

Having regard to an employee’s past good service, a period of suspension without pay may be awarded for offence which could have led to the termination of the employee alleged to have misbehaved while the matter is being investigated.  On conclusion of investigation, the employee, if found innocent, will be reinstated and paid for the period of suspension, but if found guilty, will be terminated and will not be paid for the period of suspension.

11.2.4  Summary Dismissal:

There are certain offences which are covered by the broad headings of gross/serious misconduct which, on commission may lead to summary dismissal. Such offences include:

(a)            Proven cases of theft, fraud, dishonesty, and irregular practices in respect of cash, vouchers, records, returns or clients’ claims and settlements.

(b)            …

(c)             …

(d)            …

(e)             …

(f)              …

(g)            …

(h)            …

(i)               …

(j)               Any other offence(s) which the Management may consider gravely prejudicial to the interest of the company.

49.  The Defendant’s handbook in providing that on conclusion of investigation on misconduct, the employee, if found innocent, will be reinstated and paid for the period of suspension, but if found guilty, will be terminated and will not be paid for the period of suspension, implies that a person found guilty of misconduct may be terminated instead of the use of the word ‘dismissal’.  As Lord Steyn put it in R v. Secretary of State For The Home Department, Ex Parte Daly [2001] 3 All ER 433; [2001] 1 AC 532; [2001] 2 WLR 1622; [2001] UKHL 26: “In law, context is everything”.  In the circumstance of the Claimant’s exit from the Defendant, can it be regarded as termination as a result of a finding of misconduct; or mere termination as provided under paragraph 12.3 of the Defendant’s handbook?  Taking exhibit C16 in isolation of other evidence in this case, will becloud the Court’s judgment, of the real circumstance of the Claimant’s termination.  The facts show that the Claimant was issued a letter of termination, after going through a disciplinary process.  This is acknowledged by the Claimant, when his Counsel wrote in paragraph 4.77 (page 33) of his Final Address as follows:

… Defendant terminated Claimant’s appointment on the basis of an anonymous petition from a faceless and nameless individual or group of individuals. And though the Claimant answered the query issued to him on the basis of the anonymous petition, the Defendant … proceeded to immediately terminate his appointment.”

50.  The above acknowledges Claimant’s knowledge that he was in fact terminated due to a finding of misconduct.  This is evident in exhibits C11(D3) the whistle blow, C13(Query), C14(Response to Query), Exhibit C15(Suspension), exhibit C16(Revocation/Termination) and exhibit C27 - the minutes of the Defendant’s Board of Directors meeting held on 21^st June, 2018 during which the decision to terminate the Claimant’s appointment as MD/CEO was taken.  Though exhibit C27 did not record deliberations on any gross misconduct or offence committed by the Claimant as being the reason for his termination; the preceding exhibits show that the Claimant was being terminated as a result of the allegations of misconduct made against him. 

51.  I accept the submissions of the Defendant that the facts show that the Claimant’s termination was as a result of the allegations of misconduct, even though not expressly stated in the letter of termination.  I am of the opinion that this is clearly known to the Claimant.  Exhibit C27 paragraph (1) referred to the happenings in the company concerning the Managing Director.  I am convinced that the Claimant’s termination squarely falls under paragraph 11.2.3 that:

On conclusion of investigation, the employee, if found innocent, will be reinstated and paid for the period of suspension, but if found guilty, will be terminated and will not be paid for the period of suspension.

52.  The Claimant’s argument is that because he was paid his benefits, then his termination was not as a result of any misconduct and that if there was any misconduct; it had been condoned.  However, the Defendant gave evidence that the gross misconduct of the Claimant should have ordinarily earned him summary dismissal with attendant loss of benefits, but the Defendant chose to be magnanimous with the Claimant, hence the letter of termination as against summary dismissal. It is this decision of the Defendant that has made the Claimant to challenge that his termination was not due to a misconduct.  I agree with the Defendant that an employer has the inherent power to commute summary dismissal to termination. The Defendant’s sole witness also testified during cross examination that the Claimant’s gross misconduct was deliberately not recorded in the minutes of the Board Meeting to enable the Claimant save face as such minutes are customarily sent to the regulators.  In the case of Sule v. Nigerian cotton Board [1985] 2 NWLR (Pt 5) 17, the Supreme Court held, in a situation where the Claimant had been given a termination rather than dismissal, that the Claimant should be grateful to have been given the lesser punishment.  The Supreme Court, per Oputa JSC stated that:

The main issue is the legal effect of the finding of the trial court that the plaintiff was guilty of conduct amounting to disobedience and insubordination…

…. I am in complete agreement with the learned trial judge that the plaintiff should be grateful to the Board for not dismissing him summarily.

53.  The context of Claimant’s termination shows that the Claimant had been tried for gross misconduct and found blameworthy. The Claimant’s Counsel had argued that:

In any event, the propriety of the payment by the Claimant of the sum of N130,000,000 in cash as handling charges to a Consultant is not in issue as it relates to the claim before this Court. The Claimant argues that it is not the duty of this Court to make a finding at this stage on whether it amounts to a gross misconduct deserving of a dismissal or termination.

I agree with the Claimant and that is the reason why I will not go into the conduct of the Claimant which was the object of the disciplinary procedure.  The Claimant was heard by the opportunity of the query and reply to the query.  The Defendant’s decision to commute Claimant’s disengagement to termination, instead of dismissal, cannot invalidate the Defendant’s decision, in the absence of procedural impropriety.  This view is further supported by the case of Mr. Emeka Onyema v. Diamond Bank SUIT NO. NICN/LA/326/2014 judgment of which was delivered on July 16, 2018, where his Lordship BB Kanyip (PNIC) held that:

The law is that an employer has the discretion to give a lesser punishment to an employee but he has no discretion to give a higher punishment than that prescribed. See Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487 SC

54.  The Claimant also argued that the Board Meeting that sacked him was not properly constituted as the chairman is allegedly not a fit and proper person to so act.  The Claimant argued that on the face of Exhibit C27 (minutes of emergency Board meeting of Defendant held on 21^st June, 2018), Joshua Bernard Fumudoh who presided over the meeting of 21^st June, 2018 where the appointment of the Claimant was terminated was not a fit and proper person to so preside over the Defendant’s Board of Directors meeting, or act as the Chairman of the Defendant’s Board of Directors at all, on the grounds amongst others, that Joshua Bernard Fumudoh was also at the same time a Director in another Insurance Brokerage Firm (Topflight Insurance Brokers Limited), an act which is contrary to Section 12(2) of the Insurance Act, 2003.  The Claimant referred to exhibit C29 which is the special resolution of Topflight Insurance Brokers Limited reappointing Joshua Bernard Fumudoh as a Director of the Company, while at the penultimate page of exhibit C29 is a letter dated 29^th December, 2020 from the Corporate Affairs Commission confirming the status of Joshua Bernard Fumudoh as a current Director of Topflight Insurance Brokers Limited. The Claimant argues that this clearly contravenes Section 12(2) of Insurance Act 2003, which prohibits multiple/concurrent directorship in insurance firms. The said Section 12(2) of Insurance Act 2003 provides thus:

No insurer shall appoint or have in its full time employment a partner or director in a firm or insurance brokers or loss adjusting firm.”

55.  I have considered the Claimants arguments against the competence of the chairman of the Defendant, Mr. Joshua Bernard Fumudoh, to perform the functions of the Chairman of the Defendant, and to preside over the Board meeting that sacked the Claimant. First, in this argument, the Claimant concedes that he was sacked and not just terminated, contrary to his initial argument.  Second, the section 12(2) of Insurance Act 2003 cited above by the Claimant refers to having “full time employment” by a partner or director.  The Claimant has not shown that Mr. Joshua Bernard Fumudoh, was ever in “full time employment” in the Defendant.  This ground of challenging Mr Fumudoh’s role in the termination of Claimant’s employment, does not hold water.    

56.  Issue four - Whether the Claimant is entitled to his claims in this suit?  To resolve this issue, I shall take the reliefs sought by the Claimant, seriatim:

Relief 1:  A DECLARATION that the termination of the appointment of the Claimant as the Managing Director of the Defendant by the Defendant, in the Defendant’s letter

to the Claimant dated 21^st June, 2018, is illegal, unlawful, unconstitutional, arbitrary, unconscionable, null and void and of no effect.  The Claimant failed to prove that his employment is governed by the CAMA or any other statute; or that his termination was in violation of any law or the Constitution.  Claimant’s allegation of lack of fair hearing was that he was not present at the meeting where the decision to remove him was taken.  This argument was based on Claimant’s wrong view that he had to be removed in the manner provided for directors; which he was not.  The Claimant was given opportunity to respond to allegations against him, via the query given to him and his response thereto.  That meets the requirement of fair hearing in the context of Claimant’s employment.  In the circumstance, this relief fails.   

Relief 2: AN ORDER setting aside the termination of the Claimant by the Defendant through the Defendant’s letter to the Claimant dated 21^st June, 2018.  This relief is dependent on the success of relief one above.  This relief therefore fails, due to the failure of relief one.

Relief 3:  A DECLARATION that by the combined effect of the Claimant’s letter of engagement with the Defendant, and the policy of the Defendant which applies to the Claimant, as well as the usual corporate practice in (the Insurance Industry), the Claimant is entitled to his outstanding salaries and allowances for the two terms of 5 years each, of his engagement with the Defendant, as encapsulated in the Claimant’s Contract of Employment/Engagement dated 23^rd February, 2017, irrespective of the offer of three months’ salary to the Claimant in lieu of notice.  From the finding under issue two, on the duration of the Claimant’s employment; this relief fails.

Relief 4:  A DECLARATION that the offer of a net severance benefit package of N45,537,297.13 (Forty Five Million, Five Hundred and Thirty Seven Thousand, Two Hundred and Ninety Seven Naira, Thirteen Kobo only) made to the Claimant by the Defendant vide the Defendant’s letter of September 11, 2018, falls short of the total sum of N334,577,401 (Three Hundred and Thirty Four Million, Five Hundred and Seventy Seven Thousand, Four Hundred and One Naira), being the net severance benefit payable to the Claimant by the Defendant, by a sum of N289,040,103.87 (Two Hundred and Eighty Nine Million, Forty Thousand, One Hundred and Three Naira, Eighty Seven kobo).  This relief is dependent on the success of relief three, that the Claimant’s employment is for a mandatory period of two terms of 5 years each.  With the failure of relief three, this relief fails.

Relief 5:  A DECLARATION that the Claimant is entitled to a cumulative sum of N334,577,401 (Three Hundred and Thirty Four Million, Five Hundred and Seventy Seven Thousand, Four Hundred and One Naira) (including the N48,443,099 (Forty Eight Million, Four Hundred and Forty Three Thousand, Ninety Nine Naira only), being the net severance benefit due and payable to the Claimant by the Defendant for the period of 21^st June, 2018 up to 22^nd February, 2027, being the due date of the end of his two term tenure as Managing Director of the Defendant.  This relief fails due to the failure of reliefs three and four.

Relief 6:  AN ORDER directing the Defendant to pay to the Claimant, the said sum of N334,577,401 (Three Hundred and Thirty Four Million, Five Hundred and Seventy Seven Thousand, Four Hundred and One Naira) (including the N48, 443,099 (Forty Eight Million, Four Hundred and Forty Three Thousand, Ninety Nine Naira only), being the total net salaries, allowances and severance benefit, payable to the Claimant by the Defendant for the period of 21^st June, 2018 up to 22^nd February, 2027.  This relief fails due to the failure of reliefs three, four and five.

Relief 7:  A DECLARATION that the Claimant is entitled to, amongst others, his two status cars (with particulars KSF319ER and KSF316ER), generator set, housing/furniture grants etc, all of which were/are part of his terms and perks of office as the Managing Director of the Defendant.  I have gone through the exhibits relied on by the Claimant in proof of this relief; namely exhibits C19, C30.  Exhibit C30 is not applicable to the Claimant, as it relates to the severance package of directors, which the Claimant was not.  Exhibit C31 is a board resolution of 10^th February 2017, where the board approved the company’s policy on status cars for management staff.  The Claimant refers to Exhibit C19; his letter to the Defendant where at the last paragraph at page 3 stated that:

It bears pointing out that in furtherance of the Company’s Tenure Policy, the computation of the former MD/CEO’s indebtedness in respect of Company’s properties in his possession (e.g. status cars, generator set, housing/furniture grants etc.) took effect from 1^st June 2017 (when his ten years tenure was due to lapse) and not 31^st December 2016 (when he disengaged from the company)

The Claimant does not contest the ownership of the two status cars in question here.  Exhibits D16 and D17 show clearly that ownership of the two vehicles is vested in the Defendant absolutely.  By Exhibit C32 (Defendant’s Memo on Status Cars Policy), it is clear that Status cars are given to employees but are not properties of the employees, they remain the properties of the Defendant except it has amortized over a period of 48 months.  Exhibit D18 shows that the cars in question were bought on the 2^nd day of March, 2017 and the Claimant was terminated on 21^st June 2018.  The Claimant’s argument was that if his employment was not terminated, the amortization period of 4 years would have lapsed during the first tenure of his appointment as Managing Director. With my decision on the tenure of the Claimant, this argument is no longer feasible. This relief cannot therefore be granted.

Relief 8:  AN ORDER directing the Defendant to release to the Claimant and/or allow the Clamant to retain possession of his two status cars (with particulars KSF319ER and KSF316ER), generator set, housing/furniture grants etc, all of which were/are part of his terms and perks of office as the Managing Director of the Defendant.  This relief fails, as a result of the failure of relief seven.

Relief 9:  Aggravated and exemplary Damages in the sum of 500,000,000 (Five Hundred Million Naira only).  This relief fails, as a result of the failure of reliefs one to eight.

Relief 10:  Cost of this action in the sum of N20,000,000 (Twenty Million Naira only).  This relief fails as a result of the failure of reliefs one to nine.

This suit fails in its entirety.

57.  Issue five - Whether the Defendant is entitled to its counter-claim?  To resolve this issue, I shall take the reliefs sought by the Defendant, seriatim:

Relief i:  N55,312,500 (Fifty Five Million, Three Hundred and Twelve Thousand, Five Hundred Naira Only) being the total Net Book Value as at June, 2018 of the two official vehicles (Toyota Land Cruiser with Registration No. KSF319ER and Toyota Avensis with Registration No. KSF316ER) belonging to the Counter Claimant but wrongfully detained by the Defendant to the Counter Claim since June 2018 till date.

The Claimant did not challenge the computation of the net book value as counter-claimed; rather, the Claimant had argued that the counter-claim ought to fail because it has its roots on a faulty foundation, and that the resolution of the Defendant’s Board of Directors reached at the 44^th Board Meeting of Linkage Assurance Plc. dated 13^th August, 2013 (exhibit C30) is that at termination or retirement, the senior management staff members of the Defendant are entitled to the official vehicles (status cars) in their possession at the date of disengagement if the amortization period of four years has elapsed. The Claimant further argued that the amortization period of four years for each of Claimant’s status cars - Toyota Land Cruiser with Registration No. KSF319ER and Toyota Avensis with Registration No. KSF316ER would have lapsed within the first year tenure of his two term tenure as the Managing Director.  This argument cannot avail the Claimant, in view of the decision on the Claimant’s termination. 

It is in evidence by Exhibit D18 (Document revealing the purchase price and net book value of the Claimant’s two official vehicles) that the purchase price of the cars are; Toyota Land Cruiser With Reg No. KSF319ER- N67,000,000 (Sixty Seven Million Naira) while the Toyota Avensis with Reg No. KSF 316ER- N21,500,000 (Twenty One Million, Five Hundred Thousand Naira). Exhibit D18 also shows that as at the time of exit of the Claimant in June, 2018 the values of the cars stood at N41,875,000 (Forty-One Million, Eight Hundred and Seventy-Five Thousand Naira) and N13,437,500 (Thirteen Million, Four Hundred and Thirty-Seven Thousand, Five Hundred Naira) respectively, giving a total of N55,312,500 (Fifty Five Million, Three Hundred and Twelve Thousand, Five Hundred Naira Only).  This computation was not challenged by the Claimant, who is still in possession of the two vehicles.  This relief therefore succeeds.  The Claimant is to pay the sum of N55,312,500 (Fifty Five Million, Three Hundred and Twelve Thousand, Five Hundred Naira Only) being the total Net Book Value as at June, 2018 of the two official vehicles (Toyota Land Cruiser with Registration No. KSF319ER and Toyota Avensis with Registration No. KSF316ER) belonging to the Defendant.  This is to be done within 90 days of this judgment.

Relief ii:  N12,000,000 (Twelve Million Naira only) damages for wrongful detention by the Defendant to the Counter Claim of the 2 official vehicles (Toyota Land Cruiser with Registration No. KSF319ER and Toyota Avensis with Registration No. KSF316ER) belonging to the Counter Claimant. The Defendant did not lead evidence to show how it arrived at this sum.  It is therefore refused.

Relief iii:       21% interest on relief (i) above computed from June 2018 till the date of judgment.  This relief is for pre-judgment interest.  The Defendant did not lead evidence to show which law, custom or practice entitles it to this interest, and at this rate.  This relief therefore fails.

Judgment is entered accordingly.  Parties are to bear their individual costs.

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Hon. Justice (Prof) Elizabeth A. Oji