Augustine Okokon Etim V. Clasen Ventures & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

The appellant herein as plaintiff, instituted an action against six defendants before the High Court of Cross River State, Akamkpa Judicial Division, in Suit No. HK/1/2005, vide his writ of summons and statement of claim which he filed on 4th January, 2005. In the course of hearing the matter, the then first defendant died and on 15th December, 2006, his name was struck out from the suit. The trial court then ordered that the names of the remaining defendants be re – numbered serially from 1st – 5th, to reflect the unfortunate but changed situation.

At the lower court, the then plaintiff claimed in his amended statement of claim, filed or 14th March, 2007 with leave of the trial court sought and granted on 19th February, 2007 as follows:

“WHEREOF the Plaintiff claims from the Defendants N20,000,000.00 (Twenty Million Naira) General Damages and Special Damages as follows:

i. Four Hundred Thousand Naira (N400,000.00) for Legal retainership.

ii. Twenty Thousand Naira (N20,000.00) money paid for medication.

iii. Two Thousand Five Hundred Naira (N2,500.00) times the numbers of days Counsel Travels from Calabar to Akamkpa for this case since January, 2005.

iv. Thirty Five Thousand Naira (N35,000.00) monthly income and allowances due to the Plaintiff which has been deprived him from 3rd day of November, 2004 when he was unlawfully removed from his company.

v. Filing fees as evidence in the Court Processes.”

It is to be noted that, prior to the above stated position, the defendants had filed their statement of defence. This was done with leave of the trial court, sought and obtained on 9th March, 2005. (Pp.33 -36 & 134 of the record)

Parties duly joined issues in their respective pleadings and at the hearing, the plaintiff called three witnesses including himself and also tendered documentary evidence. The 5th defendant testified for the defence and also tendered documents in evidence. At the close of evidence and after filing of written addresses and adoption of the same by the learned counsel for the parties, the learned trial judge in his judgment delivered on 30th September, 2009, found inter alia at pages 239 – 240 of the record as follows:

“It has been contended by the plaintiff that his removal from CLASEN VENTURES, as a director of that company by the defendants, was wrongful. I have no hesitation in resolving this issue at all. For whether the plaintiff was a director or a staff of CLASEN VENTURES, is it not at all permissive, for him to have short changed, or withheld Revenue/ funds of the company unilaterally, without attracting appropriate sanctions, from the appointing body (CLASEN VENTURES). The plaintiff’s unjustified withholding of the haulage tax that he was appointed by CLASEN VENTURES, to collect on its behalf, for the state Government, was certainly reprehensible enough, to warrant his prosecution and conviction as it turned out to be.” (sic)

He further held on appellants claim as follows:

“The plaintiff has in this action, come before this court, to contest that his removal is wrongly. My finding is that his removal is right. He who comes to Equity must come with clean hands. He has been convicted for clearing fraudulently with has “Directorship” vis-a-vis his company interest. He has not appealed against his conviction. His conviction is valid and subsisting. He can not be availed the relief sought by him in this action. His hands were not, and is still not clean to attract the reward of payment of the (sum of N35,000.00 claimed by him in this action from the defendants, as income and allowances, for the period he never specified, and did not furnish this court, with a break down.”(sic)