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The claimant filed this complaint on the 5th March 2012 against the defendant claiming the following reliefs: (1) Loss of yearly income of N16,652,333.33 from 1st June 2009 till when the claimant’s employment is lawfully determined. (2) A declaration that Afribank Nigeria Plc illegally terminated the contract of employment of the claimant and that the claimant is still in the employment of the defendant. (3) A declaration that the actions of Afribank Nigeria Plc as it relates to the purported termination of the claimant’s employment is null and void. (4) An order directing the defendant t to pay the claimants’ annual emolument and salary in the sum N16,652,333.33 from 1st June 2009 until his employment is lawfully determined or any other sum deemed fit by this Honourable Court. (5) An order directing the defendant to pay the sum of N250,000,000 as Exemplary Damages. (6) Cost of initiating this action and Solicitors fee at N10,000,000. Accompanying the complaint is the statement of facts, list of witnesses and documents to be relied on. Filed on the 18th May 2012 is the claimants statement on oath and an additional statement on oath filed on the 13th June 2012 together with a reply to the amended statement of defence and copies of additional documents to be relied upon. The defendant entered appearance on the 16th April 2012 and filed its statement of defence, list of witnesses and documents to be relied upon on the 30th April 2012. An amended statement of defence was subsequently filed on the 6th June 2012 and its witness statement on oath on the 16th July 2012. Parties joined issues and the matter went to trial. The claimants case on the pleadings is that he was at all relevant times an employee of Afribank Nigeria Plc and began his banking career as a Manager 5 with the bank on 1st February 1994. He pleaded that by a letter dated May 28, 2009 Afribank notified him of its acceptance of a letter of offer dated 28th January 2009 in which he allegedly voluntarily retired from the services of the Bank and the acceptance was to take effect from 1st June 2009. He pleaded that the defendant is a licensed bridge bank and took over the assets and liabilities of Afribank Nigeria Plc in August 2011 or thereabouts. He pleaded that by the terms of his letter of appointment all other conditions of service were governed by the senior staff collective agreement until he became a management staff. He pleaded that his appointment was confirmed on 15th February, 1995. The claimant pleaded that he was born on 16th February 1955 and was 54 years old at the material time in 2009. That he had another six years before retirement and that at no time did he ever make an offer to Afribank Nig. Plc via letter dated 29th January 2009 or any letter at all voluntarily retiring from the service of the bank. He pleaded that his representatives by letter dated 19th August 2009, requested the Bank to produce the said letter of voluntary retirement but the request was ignored. The claimant averred that the illegal termination of his employment forced him into the labour market which negatively affected his matrimonial home. That he became a nuisance to his friends because of his constant request for financial assistance. He pleaded that he was forced to withdraw his children from school. The claimant pleaded that he instructed his solicitors to write to the Bank to pay him damages for misrepresentation and illegal termination but the Bank ignored his letter. That his total emolument as a Principal Manager in 2009 was N16,652,333.33. He averred that the said letter of voluntary resignation written by him is non existent and that by reason of the said illegal termination and misrepresentation, he has suffered losses and damages. The claimant gave evidence in proof of his case. His examination in chief was by his two statements on oath which he adopted and which was in the exact terms of his pleadings. Under cross examination, the claimant said the defendant was granted its banking license on 5th August 2011. He said his letter of employment is dated 17th December 1993 and he resumed work on 1st February 1994. He admitted that the defendant was not his employer on 1st February 1994 and that his letter of retirement was written by Afribank. The claimant admitted that his employment had been terminated when the defendant came into existence. He said that at the time he filed this action, he was aware Afribank was still in existence. He said he brought this action because he believes Afribank is for all purposes Mainstreet Bank. The claimant said the defendant came into existence as a bridge bank to take over the assets and liabilities of Afribank. The claimant said he has an outstanding housing loan of N12million; he is behind in his rent and his wife takes care of their children. The defendants case on the pleadings is that it did not take over the assets and liabilities of Afribank Nigeria Plc. The defendant pleaded that it was incorporated in 2011 with RC number 969929 and obtained its banking licence No. MB000064 from the Central Bank of Nigeria (CBN) on 05.08.2011. The defendant averred that Afribank is still in existence as a corporate entity even though winding up proceedings have been commenced against it by the Nigeria Deposit Insurance Corporation (NDIC) following the revocation of its banking licence by the CBN on 5th August 2011. It pleaded that upon commencement of full operations as a duly licensed Bank, only staff of Afribank with existing contracts of employment were considered for employment by it. It pleaded that the claimants alleged termination of his employment by Afribank pre-dates its incorporation. The defendant denied that the claimant is an employee of Afribank and averred that Afribank has a right to hire and fire its employees. It averred that there is no privity of contract between the claimant and defendant and that the defendant is not bound by the contracts entered into by Afribank nor is it liable for its wrongful acts or omissions. It denied any liability to the claimant. The defendant called one witness Mr Tolulope Ilori who said he is the Industrial Relations and Staff Welfare Manager of the defendant. His examination in chief was by witness statement on oath which he adopted and which was in terms of the pleadings. Under cross-examination, he said he was familiar with the case. The witness said the claimants employment was terminated by Afribank. He said Afribanks license was revoked on 5th August 2011 at about 4.00p.m. and the defendant was licensed on 5th August 2011. The witness said he did not resign his appointment with Afribank neither did Afribank terminate his appointment. He said the defendant is a bridge bank and that its role is to take over the business of a dying bank until it is taken over by new owners. He said that the issue of take over of liabilities of Afribank by the defendant is not yet resolved. He said the defendant commenced its operations with Afribank staff. Parties were ordered to file their final written addresses. The defendant’s final written address is dated 6th December 2012 and filed on the same day. The claimant’s final address is dated 31st December 2012 but filed on the 2nd January 2013. The defendant’s reply on point of law is dated 25 January 2013 and filed on the same day. Learned counsel to the defendant submitted two issues for determination as follows: (1) Whether the legal personality of the defendant is the same as that of Afribank Nigeria Plc. (2) Whether the defendant is liable to the claimant for damages allegedly caused by the termination by Afribank of the claimants employment with Afribank Nigeria Plc. He submitted that a company upon incorporation acquires a distinct legal personality from the date of its incorporation and is recognised by its own name within its registered certificate. He referred to section 37 of the Companies and Allied Matters Act (CAMA) CAP C20 LFN 2004, Salomon v Salomon & Co. Ltd [1877] AC 22, Habib Nig. Bank Ltd v Ochete [2001] 3 NWLR (Pt 699) 114. He submitted that the legal personality of a corporate body can only be established as a matter of law by the production in evidence of the certificate of incorporation citing ACB Plc v Emostrade Ltd [2002] 8 NWLR (Pt 770) 501 at 518, Emenite Ltd v Oleke [2005] 6 NWLR (Pt 921) 350 at 356. Learned counsel argued that the defendant was incorporated on 05.08.2011 as evidenced by its certificate of incorporation, obtained a banking licence and commenced business. He urged the court to hold that the defendant is not a rename of Afribank nor a continuation of the legal exsistence of Afribank. Learned counsel argued that this matter be dismissed for failure to join Afribank which is a necessary party, a party to this suit. He argued that this suit is not competent or properly constituted in the absence of Afribank as a party as its presence is crucial and fundamental to the resolution of this matter. He cited Lawal v P.G.P (Nig) Ltd [2001] 17 NWLR (Pt 742) 393 at 405 – 406, Akindele v Abiodun [2009] 11 NWLR (Pt 1152) 356 at 381, Santa Fe Drilling (Nig) Limited v Awala & Anor [1999] 6 NWLR (Pt 608) 623 at 629. It was the submission of learned counsel that between the parties to this action, the court must presume that the termination of the claimants employment by Afribank is valid and that the claimants employment contract no longer subsisted as of the date the defendant entered into the Purchase and Assumption agreement (P & A) with Afribank (sic) NDIC. It was his contention that even if the claimant suffered damages from the termination, payment of such damages was not assumed by the defendant under the Purchase and Assumption agreement given that the damages had not ripened into a judicial award as of the effective date of the Purchase and Assumption agreement. He argued that the claimant is not a party to this agreement and cannot be a beneficiary of the agreement, there being no privity of contract and as such no contractual liability. He cited a Dunlop Preumatic Tyre Co. Ltd v Selfridges & Co. Ltd [1915] AC 847, Ikpeazu v ACB Ltd [1965] NMLR 374, A.O. Borishade v National Bank of Nigeria Ltd [2007] NWLR (Pt 1015) 217, Nissan (Nig) Ltd v Yoganathan [2010] 4 NWLR (Pt 1183) 135 at 140. It was learned counsels contention that reliefs 3-5 sought by the claimant are dependent on the success of reliefs 1 & 2. He argued that if the main reliefs fail, the ancillary reliefs must fail because they can only be determined if the court decides that Afribank unlawfully terminated the employment of the claimant. He cited Best Vision Centre Ltd v U.A.C.N.P.D.C. Plc [2003] 13 NWLR (Pt 838) 594 at 606, Ehidimhen v Musa [2000] 8 NWLR (Pt 669) 540 at 606, Tukur v Governor of Taraba State [1997] 6 NWLR (Pt 510) 549 at 582. It is the contention of counsel that the Purchase and Assumption agreement is a subsidiary instrument made pursuant to section 39 of the NDIC Act or alternatively a contract with statutory flavour and not an ordinary contract. He argued that in the absence of evidence that the claimants contract of employment was novated by the Purchase & Assumption agreement in favour of the defendant, it is not liable to compensate the claimant for damages caused by the alleged wrongful termination of his employment. He submitted that section 39 of the NDIC Act does not contemplate take-over of assets and liabilities of Afribank that the extent of liabilities taken over by the defendant is a question of fact which has to turn on the provisions of the Purchase and Assumption agreement. He urged the court to interpret the provisions of section 39 literally citing Grosvenor casinos Ltd v Halaoui [2009] 10 NWLR (Pt 1149) 309 at 349. Learned counsel argued that the claimant failed to adduce any evidence in proof of the terms and conditions of service governing his employment. He submitted that the senior staff collective Agreement ceased to apply to the claimant upon his appointment as Principal Manager a management position at the material time citing Katto v CBN [1999] 6 NWLR (Pt 607) 390, Amodu v Amodu [1990] 5 NWLR (Pt 150) 356, Iwuchukwu v Nwizu [1994] 7 NWLR (Pt 357) 379. He then submitted that the court lacks the evidential basis upon which to embark upon any meaningful and realistic assessment of damages citing A.C.B. Ltd v Adebesin & Co. [1999] 1 NWLR (Pt 585) 13, Okongwu v NNPC [1989] 3 NSCC vol 20, 118, Ijebu Ode Local Govt v Adedeji Balogun & Co. [1991] 1 NWLR (Pt 166) 136. He then urged the court to resolve the two issues in favour of the defendant. Learned counsel to the claimant did not raise any issues but has simply responded to the issues formulated by the defendant. He agreed with the defendant that Afribank Nig. Plc and the defendant have separate legal identities. He stated that the case of the claimant is that the defendant has assumed the assets and liabilities of Afribank and was sued on this basis. That the purpose of the assumption is in recognition of the fact that the legal personalities of the two companies is distinct. It was his submission that there was therefore no need for the claimant to join Afribank Nig. Plc, the defendant having stepped into its shoes. He argued that the defendant was sued because it is a Bridge bank which is defined in section 59 of the NDIC Act as a new bank organised by the corporation in accordance with section 39 of the Act. He also referred to section 37, 38 and 52 of the NDIC Act. Learned counsel submitted that the defendant has not put up any defence and that the allegations against Afribank were not controverted or denied. He submitted that the defendants general traverse is not a proper traverse and as such, the court is enjoined to treat the defence as an admission of facts citing Akintola v Solano [1986] 2 NWLR (Pt 24) 598, Alhassan v A.B.U. Zaria (No citation) Oparaji v Ahihia [2012] 4 NWLR (Pt 1290) 266 at 276, C.B.N. v Dinneh [2010] 17 NWLR (Pt 1221) 125. He submitted that the Memorandum and Articles of Association of the defendant states that it was established inter alia to assume all or part only of the deposits and/or liabilities of Afribank Nigeria Plc. He referred to section 39 of the NDIC Act and submitted that the wording indicates that the entire deposits and liabilities are to be assumed by the Bridge Bank. He referred to Blacks Law Dictionary, 7th Edition for the meaning of liability and cited In re Lewis: Goronwy v Richards [1942] Ch.D 424, Rainy Sky SA v Kookmin Bank [2011] UKSC 50, Kasem v BNC Stor LLC A.D. 3d 470 (NY App Div 2d Dept 2006), Salvati v Blaw-Knox Food & Chemical Equipment, Inc 497 N.Y. Sd 247. He submitted that the object clause of the Memorandum and Articles of Association of the defendant cannot change the express provisions of the NDIC Act which does not give the defendant any discretion whatsoever in the liabilities which it is to assume. He submitted that the powers of a corporation created by statute are limited and circumscribed by the statutes which regulate it referring to Halsbury’s Laws of England 3rd Edition volume 9 at page 62 on statutory corporations and section 69 of the Companies and Allied Matters Act. Learned counsel argued that the action of Afribank Nig. Plc has not terminated the employment of the claimant in law unless it is done properly citing Yalaju –Amaye v Ass. Reg. Engr. Company Ltd [1990] 2 NSCC (incomplete citation) N.I.I.A v Ayanfalu [2007] 2 NWLR (Pt 1018) 264. B.C.C. Plc v Ager [2010] 9 NWLR (Pt 1199) 292 at 307. He urged the court to hold that the action of Afribank is null and void and referred to N.R.W Ind. Ltd v Akingbulugbe [2011] 11 NWLR (Pt 1257) 135, Ilodibia v N.C.C. Ltd [1997] 7 NWLR (Pt 512) 174, UBN Plc v Soares [2012] 11 NWLR (Pt 1312) 550 at 561. He stated that the claimant is not asking for specific performance or reinstatement but that the effect of the reliefs sought would be the same. He urged the court to grant all the reliefs of the claimant. Replying on point of law, learned counsel submitted that the duty of a court is to interprete the words used by the legislature citing LSDPC v Adeyemi Bero [2005] 8 NWLR (Pt 927) 330. He argued that the P & A Agreement is, itself, a fulfilment and perfection of the provision of section 39 (1)-(5) of the NDIC Act and both clause 4(3) (a) and (b) and section 39 (1) of the NDIC Act ought to be read together. He argued that since the NDIC cannot act in the abstract but in a concrete plane, the way in which the NDIC can make a “determination” as to what liabilities have or can be assumed by a bridge bank in any specific factual circumstance is by means of a contractual agreement, a function that the Purchase and Assumption Agreement entered into between the NDIC and the defendant serves. Learned counsel submitted that the benefit of a contract of employment which is personal in nature cannot be transferred or assigned without the express prior consent of both the assignor and the employee citing Nokes v Doncaster Amalgamated Collieries [1940] AC 1014 at 1018. He argued that the claimant must show without equivocation that he gave prior consent to the alleged novation of his personal contract of employment by way of the Purchase and Assumption agreement. He argued that the authorities relied on by the claimants counsel are not relevant to the facts of this case e.g. Yelaju Amaye v AREC supra. He submitted that the claimants employment is not one with statutory flavour and therefore the claimants argument in relation to a null and void termination is misconceived citing Oloruntoba-Oju v Abdul-Raheem [2009] 13 NWLR (Pt 1157) 83 at 137, Adeniyi v Gov. Council Yaba College of Technology [1993] 6 NWLR (Pt 300) 426. CBN v Dimeh, supra. It was learned counsels submission that the claimants contract of employment was not an existing agreement to which section 4 (3) (a) of the Purchase & Assumption agreement and the requirement of notice applied. He urged the court to hold that the claimant has failed to prove his assertions that his contract of employment which was terminated by Afribank was assumed by the defendant. He submitted that there is no evidential basis upon which the court can assess any special damages citing N.R.W. Ind. Ltd v Akingbulugbe [2011] 11 NWLR (Pt 1257) 135 and that the claimant has not shown or proved any allegation that the defendants conduct is in flagrant disregard of the law to warrant any claim for exemplary damages. On the issue of costs, he argued that it is exercised judicially and reasonably to compensate a successful party citing Layinka v Makinde [2002] 10 NWLR (Pt 775) 358, International Offshore Construction Ltd v SLN [2003] 16 NWLR (Pt 845) 157 at 179. It was also counsels submission that the Labour Act applies to workers and not management staff which the claimant is citing Shena Security Co. Ltd v Afropak Nig. Ltd [2008] 4-5 SC (Pt 11) 117. He then submitted that the defendant is not liable to the claimants. I have carefully considered the processes filed, the evidence led, written submissions and authorities cited. In my view, the issues for determination in this judgement are: (i) whether there is a nexus between the defendant and Afribank Nig. Plc. (ii) whether Afribank is a necessary party to this suit and. (iii) whether there is a cause of action disclosed against the defendant. There is no dispute between the parties that the claimant was employed by Afribank and was disengaged by its letter dated May 28, 2009 with effect from 1st June 2009. There is no dispute that the defendant was incorporated on the 5th August 2011 and issued a banking licence on the same day. The parties are agreed that the defendant and Afribank Nig. Plc are two different legal persons. The claimant’s position is that he sued the defendant because it has assumed the assets and liabilities of Afribank. The question which now arises is whether there is a nexus between Afribank and Mainstreet Bank. The defendant was incorporated as a bridge bank by the Nigeria Deposit Insurance Corporation pursuant to section 39 (1) of the NDIC Act 2006 to “assume such deposits and/or liabilities and shall purchase such assets of a failing insured institution.” In furtherance of this, a Purchase and Assumption (P & A) Agreement was executed between NDIC and the defendant. The claimant is not a party to this agreement. The law is settled that only parties to an agreement can enforce it. A non-party cannot enforce it even if made for his benefit. Counsel have made forceful submissions in respect of the legal status of this agreement and certain provisions contained therein. It is important not to loose focus that this is an action in which the claimant is challenging his disengagement from service by his employer. I therefore must warn myself to avoid being tempted or lured into commenting and/or assuming jurisdiction over matters this court has not been given jurisdiction to entertain. I therefore do not find this document to be relevant for the purpose of this judgement. Paragraph 3.1 and 3.2 of the Memorandum of Association of the defendant states that the objects for which the bank is established are: 3.1. To assume all or part only of the deposits and/or liabilities of Afribank Nig. Plc. 3.2. To purchase such assets of Afribank Nigeria Plc as are acceptable to the Board. I find that from the Memorandum of Association of the defendant, there is established a nexus between Afribank Nig. Plc and the defendant Mainstreet Bank. It is my view that a combined reading of section 39(1) of the NDIC Act 2006 which is the statutory instrument and the Memorandum of Association reveals that the defendant assumed all the deposits and liabilities of Afribank and is to purchase its assets and I so hold. Now, the claimant’s complaint of illegal termination of his contract of employment is primarily against his employer Afribank who retired him with effect from 1st June 2009. I find from the evidence adduced that the defendant was not in existence at the time he was disengaged by Afribank on 1st June 2009. It was incorporated on August 5, 2011. The claimant has argued that the defendant has not put up any defence and that its traverse is not specific but general and has not joined issues with the claimant. The defendants traverse in paragraph 7 of its amended statement of defence is that it is “not in a position to admit or deny the averments in paragraphs 2-13 of the statement of facts relating to the claimant’s alleged employment with Afribank and the alleged termination of his employment by Afribank, as they constitute allegations which pre-date the respondents incorporation”. The Supreme Court has stated the position as follows in Aja v Okoro [1991] 7 NWLR (Pt 203) 260 at 282 per Akpata J.S.C. paras. C-D: “As rightly submitted in the respondents’ brief of argument, paragraph 9 of the statement of defence is to the effect that Isaac Chukwu felled Iroko tree or timber on the respondents’ land. They certainly were not in a position to know whether or not Isaac Chukwu also felled Iroko tree on the plaintiff’s land which, according to the respondents, is outside Elueke land. It will, in my view be encouraging a defendant to be mendacious to insist that he must deny flatly the fact of something he knows nothing about.” The defendant is not bound to deny flatly the facts of the claimant’s disengagement which predated its existence. The defendants traverse is not an admission and I so hold. The claimant has tendered in evidence the letter of acceptance of voluntary retirement written to him by Afribank. A part of which is reproduced as follows: May 28, 2009. HCM/IRSW/MEE/123/2009 Ososanya, Babatunde (5325Q) Afribank Nigeria Plc Financial Control Department Head office Lagos. Dear Sir, VOLUNTARY RETIREMENT We refer to your letter of 28th January 2009 notifying the Bank of your voluntary retirement from the services of the Bank and convey Management acceptance of the voluntary retirement with effect from 1st June, 2009. Management is pleased to acknowledge your immense contributions to the growth and development of the Bank during your service years and wish you success in your future endeavour. He instructed his Solicitors to write a letter to Afribank demanding that the said letter he allegedly wrote notifying the bank of his retirement be produced. His Solicitors letter is dated March 23, 2010. There is no evidence before me that the said letter of retirement was produced by Afribank. It has also not been produced by the defendant who was not his employer at the material time. The claimant under cross examination said that at the time he instituted this action, he was aware Afribank was still in existence. In spite of its existence, Afribank was not made a party to this suit. It ought to have been made a party to this action as it was the employer of the claimant. I therefore cannot make any finding as to the existence or non existence of the said letter of retirement. I find that the presence of Afribank is necessary to enable the court effectually and completely adjudicate upon and settle all the questions involved in the claimants complaint of illegal termination. See Green v Green [1987] 3 NWLR (Pt 61) 480, Ige v Farinde [1994] 7 NWLR (Pt 354) 42. I hold that Afribank is a proper and necessary party to this action. Its non joinder is fatal to this action which is not properly constituted. The claimant has admitted that he was disengaged from the services of Afribank Nig. Plc on 1st June 2009. This is a period of two years before the defendant came into existence. Since he was no longer an employee of Afribank on August 5 2011, he could not have been given the opportunity to exercise the option given to each employee of Afribank still in service by the defendant to either become its employee or withdraw. The reason existing staff of Afribank were given the option is because an employment contract is one of personal service which is not assignable. It cannot be transferred without the consent of the employee as such contracts are in the nature of personal rights. See West African Distillers Ltd & 2 Ors v FBTSSA [2007] 9 NLLR (Pt 23) 57, Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 140. I hold that the claimant as a former employee of Afribank Nigeria Plc could not exercise the option given to existing staff and is therefore not an employee of the defendant. From the totality of the evidence before me, the claimant’s cause of action against Afribank arose on May 28 2009 when the letter of voluntary retirement was written to him. The claimant has not shown any wrongful act committed against him by the defendant and the damage consequent or flowing suffered by him. Indeed, by the claimants own statement in cross examination, he said “I have brought this case against the defendant because I believe Afribank is for all purposes Mainstreet Bank”. The law is trite that where a statement of claim discloses no cause of action, it will be struck out and the action dismissed. See NBC Plc v Ezeifo [2001] 12 NWLR (Pt 726) 11, Ibe v Ahmed [1992] 4 NWLR (Pt 235) 311. I find that there is no cause of action disclosed against the defendant and I so hold. For all the reasons given above, I find that the claimant has not proved his claims against the defendant. This action is not properly constituted. It is misconceived and is hereby dismissed. Costs of N10,000 is awarded to the defendant. Judgement is entered accordingly. ------------------------------------------- Hon Justice O.A.Obaseki-Osaghae