Captain (Rtd) Julius A. Omole V. Colodense Nigeria Plc. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, JCA (Delivering the lead Judgment)

In the High Court of Justice Ogun State of Nigeria holden at Ota, the present Appellant as Plaintiff claimed against the

Respondent as Defendant as per paragraph 15 of the statement of claim dated 14th September 2002 and filed on the 18th September 2002 as follows –

(i) Total Retirement Benefits as conveyed to the Plaintiff by the Defendant company vide letters CFA/JU/321 06/98 of 30/6/98 and CFA/JU/18/98 of 4/12/98 respectively – N6,635,795.31.

(ii) Accrued interest at the prevailing Bank rate of 25% on the due sum of (i) above with effect from 1st January 2000 to June 30th 2002 in accordance with paragraph (c) of the Defendant’s letter CFA/JU/321/06/98 of 30/6/98.

(iii) Savings deducted from the Plaintiff’s monthly salaries for onward transfer to the Defendant’s Cooperative Thrift and Credit Society.

(iv) Accrued interests on the unpaid Retirement Benefits of N6,635,795.31 from the month of July 2002 at the prevailing Bank rate of 25% until Judgment is given and thereafter until payment is effected.

The Respondent (then Defendant) filed a statement of defence dated the 16th December 2002 and filed on the 17th December 2002 while the then Plaintiff (now Appellant) filed a Reply to the Statement of Defence dated the 6th January 2003 and filed on the 7th January 2003. Pleadings having been thus filed and exchanged the case proceeded to be heard.

What can be culled from the statement of claim are that the Appellant, a retired Executive Director of the Respondent joined the services of the Respondent as Corporate Affairs Manager on the 31st December 1983 and was promoted to the position of Company Secretary in 1984 and Executive Director/Company Secretary in 1985. The Appellant served a notice of Voluntary Retirement dated 20th April 1998 on the Respondent giving the Respondent the required six months notice of his intention to retire from the services of the Respondent with effect from the 31st October 1998.

The Appellant averred that the Respondent by its letter CFA/JU/32/06/98 dated 30th June 1998 accepted the Appellant’s Notice of Retirement and informed the Appellant that his retirement would take effect from the 1st November 1998. The Appellant further averred that in the said letter CFA/JU/32/06/98 dated 30th June 1998, the Respondent asserted that 30% of the Appellant’s terminal benefits would be paid to him by the 31st October 1998 while the balance thereof would be paid in three equal installments before the end of 1999. The Respondent Company also agreed to pay interests at the prevailing bank rate on any outstanding payment unpaid by the 31st December 1998. The Respondent, Appellant contended, by its said letter CFA/JU/32/06/98 dated 30th June 1998 demonstrated its appreciation for the Appellant’s relentless and selfless service by retaining the Appellant on contract appointment after his retirement with effect from 1st November 1998 as per Respondent’s letter dated the 1st July 1998. Appellant went on further to aver that in furtherance to its letter accepting the Appellant’s retirement, the Respondent conveyed the total retirement benefits with details and breakdown to the Appellant by its letter CFA/JU/18/12/98 dated 4th December 1998 and the net payable to the Appellant is N6,635,795.31 (Six million, six hundred and thirty five thousand, seven hundred and ninety five naira, thirty one kobo). The Appellant went on to say that after he had waited patiently but to no avail for the payment of the 30% of his Retirement Benefits as stated in the Respondent’s letter CFA/JU/32/06/98 of 30th June 1998, he wrote several letters reminding the Respondent of the delay or failure to effect payment to him as stipulated by the Respondent’s letters. These reminder letters are dated 23rd August 1999, 8th September 1999, and 17th April 2001 in which he made demands for his entitlements from the Respondent Company.

The Appellant averred that he complemented these demand letters with personal visits and calls on the Chairman of the Respondent Company amongst others. Having waited for several years because of his former status in the Respondent Company, the Appellant said he retained the legal services of S.K. Lawal & Co. to take appropriate legal action as a result of which by its letter OMOLE/02/2002 dated the 1st July 2002, the Appellant’s solicitors demanded for the immediate payment of Appellant’s Retirement Benefits with accrued interest thereon. Despite this the Respondent has refused and/or failed to pay the Appellant his Retirement Benefits and entitlements hence the legal action in the court below leading up to this appeal.

The Respondent in its statement of defence averred that by virtue of the position attained by the Appellant, all matters relating to the services or otherwise of the Appellant were to be discussed and determined by the Board of the Respondent before approvals are made and that the purported resignation and acceptance of resignation as purportedly conveyed to the Appellant were the collusive efforts of the Appellant and the then Managing Director and that the Board of the Respondent did not authorize the letter purporting to accept the resignation of the Appellant. Respondent contended that the letter purporting to convey acceptance of Appellant’s resignation was unauthorized by the board and same also was the award of interest to the Appellant on whatever the former Managing Director calculated on his own to be the entitlement accruing to the Appellant. Respondent submitted further that the entitlement to the Appellant was unrealistic as it was unimaginably inflated.

As earlier stated the matter went on to be heard with evidence adduced along the lines highlighted in the pleadings of the parties. A number of exhibits were tendered and admitted and thereafter addresses of counsel were taken. In its considered judgment delivered on the 17th June 2004, Onafowokan J held that, “The Plaintiff’s claim fails in its entirety and is dismissed”. It is this judgment that is the subject of appeal by the Plaintiff turned Appellant. The Appellant’s Notice of Appeal dated the 28th July 2004 and filed on the 6th August 2004 is contained at pages 62 and 63 of the Record of Appeal.

The Appellant by a motion on Notice dated the 15th February 2007 and filed on the 22nd February 2007 and brought pursuant to order 3 Rule 16 of the then Court of Appeal Rules 2002 sought for this court’s order to amend the notice of appeal in the manner contained in a proposed Amended Notice of Appeal attached as exhibit A and to deem a filed copy of the Amended Notice of Appeal dated the 15th February 2007 and filed on the 12th June 2007 as properly filed and served on the Respondent. This application was moved by Appellant’s counsel and granted by this court on the 28th May 2007 the effect being that the Amended Notice of Appeal supersedes the original Notice of appeal dated the 28th July 2004 and filed on the 6th August 2004. The Amended Notice of Appeal upon which this appeal is predicated is reproduced below –