Judgement: Industrial Court Sets Aside Purported Letter of Termination, Declares Arese Alonge As Subsisting Executive Director.

• 1792 Thursday 27th September 2018

Lagos --His Lordship, Hon. Justice J. D. Peters of the National Industrial Court of Nigeria, Lagos Judicial Division on Thursday 27^th September, 2018 in a judgment set aside the purported letter of termination of Arese Alonge (claimant) by Unity Bank Plc. (1^st Defendant's) dated 14th January, 2015 as unlawful, null and void, invalid and of no effect    whatsoever.  His Lordship also declared that the Claimant is a subsisting Executive Director of the Unity Bank and entitled to continue to enjoy all the entitlements, benefits, emoluments and all other rights and or privileges attached or appertaining to the office and position of Executive Director of the 1^st Defendant.

On 11/2/15, the Claimant approached this Court via her General Form of Complaint and sought against the Defendants among others; A declaration that the Claimant is a subsisting Executive Director of the 1^st Defendant and entitled to continue to enjoy all the entitlements, benefits, emoluments and all other rights and or privileges attached or appertaining to the office and position of Executive Director of the 1^st Defendant. An Order directing the 1^st Defendant to pay to the Claimant, the allowance, benefits and other entitlements due and or may become due and or continue to accrue to the Claimant with effect from 30^th January, 2015 to  the final determination of this suit, as set out hereunder: to the Claimant as quarterly net salary, excluding other allowances, benefits and entitlements  in every January, April, July and October.

Likewise An order of perpetual injunction restraining the Defendants whether by themselves or through their agents, officers, privies or howsoever from taking any step in connection with or howsoever related to the threats contained in the Defendant's letter dated 22^nd January, 2015 including but not limited to debiting, charging and deducting any sums whatsoever from    the Claimant's account with the 1^st Defendant and/ or harassing, intimidating and coercing the Claimant to comply with the Defendants' letter of 22^nd January, 2015.

 

The case of the Claimant as revealed by her evidence in chief is that her service was engaged on 10/1/14 that the 1^st Defendant vide its letter dated the 14^th of January, 2015 purportedly terminated the appointment of the Claimant on the basis that her services were no longer required; that the Claimant has contested the purported termination on the basis of the nature of her appointment as an Executive Director in the 1^st Defendant, being a company incorporated under the Companies and Allied Matters Act (CAMA) and that the Claimant’s appointment and removal as a Director is regulated by the provisions contained in Part IX, Chapter 1 of Companies and Allied Matters Act (CAMA); that the Claimant’s contention is that she was not given notice of the Meeting where the purported “board’s decision to terminate” her appointment with the 1^st Defendant was made and that her employment can only be terminated in accordance with the relevant statutory provisions regulating her contract; that consequently, the Claimant further contends that her employment with the Bank subsists and that she is entitled to full remuneration and other benefits, allowances, emoluments and other payments agreed to by the 1^st Defendant.

 

During cross examination, The claimant further added that she is aware that Executive and Board take decision for the Bank that is Executive Manager and Board of Directors; that what was obtainable in the Banking sector was not was obtainable in the 1^st Defendant; that at 1^st Defendant, the Managing Director usually takes unilateral decision in everything; that she is not aware of any Board meeting; that she was not called to defend any allegation against her; that she was a member of the Board while with 1^st Defendant; that decisions are taken at Board meetings; that the Company Secretary along with the Managing Director communicate decisions of the Board to Staff; that the Board of 1^st Defendant approved her appointment together with Central Bank of Nigeria and letter signed by Company Secretary and Managing Director; that decisions are often unilaterally taken and not in line with approval; that she observed that practices which were not best practices were on at 1^st Defendant; that there were such incidents while she was a member of the Board; that she was not in agreement of such decisions; that if a staff is exited properly there would be no issue of payment of salary; that as at 14/1/15 to date she believes she is still a staff of the 1^st Defendant and that she was paid upfront payment in line with her remuneration package.

The case of the Defendant is that it employed the Claimant on or about the 10/1/14; that in addition to the letter of appointment and in accordance with the Bank’s policy, the parties were to execute a contract of service containing the terms and conditions of service of the Claimant; that consequently, a draft copy of the said contract was forwarded to the Claimant for execution; that rather than execute the contract the Claimant made a counter-offer by asking for a review of some of the terms as contained in her notes on page 4 of the contract; that one of the observations/counter-offers made by her i.e. the mobilization of =N=50,000,000,000 (Fifty Billion Naira) was part of the Claimant’s promises during the course of her interview for the job with the Compensation and Appointment Committee of the 1^st Defendant; that on assumption of office, it was discovered that the Claimant was incompetent and could not meet her target of mobilizing =N=50,000,000,000.00 (Fifty Billion Naira) deposit for the Bank thus prompting the 1^st Defendant through the 2^nd Defendant as the Managing Director to query her poor performance vide the 1^st Defendant’s letters of December 19, 2014 and January 7, 2015; that the Claimant’s response to the query was further considered by the 1^st Defendant’s Board Governance and Nomination Committee meeting held on the 13^th January, 2015 wherein the Committee decried her poor performance, failure to execute the contract of service and her general attitude and thereafter recommended the termination of her appointment to the Board of Directors; that consequently, by a letter dated January 14^th, 2015, the inchoate appointment of the Claimant with the Bank was terminated on the grounds of Service No Longer Required.

 

While being cross examined, the witness testified that he could not see the name of the Claimant on the List of Directors; that he could not remember the date the Board resolved to terminate employment of the Claimant; that he is aware Claimant was issued query by the 2^nd Defendant and that Claimant answered same; that he is not aware of any notice from Defendant of intention to sack the Claimant; that he was not present at the Board meeting where decision was taken to sack the Claimant; that no resolution of the Board to sack Claimant was sent to her; that he does not know if the Claimant was given notice of meeting where decision was taken to sack her; that the  Claimant is liable to pay back about =N=41 Million to the Defendant being money paid to her while in the employment of the 1^st Defendant; that some of the payments were upfront; that payments to enable Claimant settle down and work tools such as Cars; that Claimant’s appointment was confirmed by regulatory authorities; that there was no date on the contract of employment and that he is not aware that it was signed by Claimant and served on 2^nd Defendant a week before her appointment was terminated.

 

After painstakingly and carefully read and understood all the processes filed by learned Counsel on either side, testimonies of the witnesses called at both in chief as well as under cross examination and evaluated all the exhibits tendered and admitted, the presiding Judge Hon. Justice J. D. Peters expressed thus;

 

“I note that for reasons best known to the Defendants they chose not to address the issue of service of requisite notice of meeting on the Claimant. The pleadings of the Defendants were silent on this. Secondly, the letter conveying the alleged Board's decision to terminate the appointment of the Claimant did not state the date of the alleged meeting where the decision was taken. I find and hold that the Claimant was entitled to be served but not served notice of the Board meeting as required by law. I declare that her removal was in violation of the provision of the Companies and Allied Matters Act particularly Section 266(1) &(2) and the violation renders the meeting invalid by virtue of Section 266(3). I therefore pronounce the said removal of the Claimant invalid. I resolve Issue 1 in favor of the Claimant and against the Defendants. The Claimant must be deemed to be and still is the Executive Director of the 1st Defendant. I so pronounce it.”

 

Furthermore, his Lordship declared that the purported termination of the employment of the Claimant by the 1^st Defendant contained in the letter dated 14^th January, 2015, is unlawful, null and void, invalid and of no effect whatsoever. And declared that the Claimant is a subsisting Executive Director of the 1^st Defendant and entitled to continue to enjoy all the entitlements, benefits, emoluments and all other rights and or privileges attached or appertaining to the office and position of Executive Director of the 1^st Defendant.

 

The court directed the 1^st Defendant to effect payment of the monthly sum of =N=l,381,750.00 (One Million, Three Hundred and Eighty One Thousand, Seven Hundred and Fifty Naira Only) to the Claimant (excluding the months of January, April, July and October) commencing from 30^th January, 2015 till final determination of the instant suit, the said sum representing the gross amount due from the 1^st Defendant to the Claimant as monthly basic salary, excluding other allowances, benefits and entitlements in every month exclusive of January, April, July and October.

           

“I find and hold that the counter claims are not proved. I refuse and dismiss same.

“All the sums due to the Claimant under and by virtue of this Judgment shall be paid with 15% interest per annum from the date of this Judgment until final liquidation. All the terms of this Judgment shall be complied with within 30 days from today.”

 

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