➥ CASE SUMMARY OF:
E.A. Garuba V. Kwara Investment Company Ltd. & Ors. (2005) – SC
by Branham Chima (SAL).
Supreme Court – SC.260/2000
➥ JUDGEMENT DELIVERED ON:
Friday, the 28th day of January, 2005
➥ AREA(S) OF LAW
Take over of company.
➥ PRINCIPLES OF LAW
⦿ THERE MUST BE EVIDENCE OF RATIFICATION OF PRE-INCORPORATION CONTRACT
Before the above provisions could apply, there must be evidence of ratification by the new company of contracts made before its formation. In the case on hand, there was no such evidence. Nor was it shown who, if any body had ratified the contract between the plaintiff/appellant and the 1st defendant. — Oguntade, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
K. Eleja, Esq.
⦿ FOR THE RESPONDENT
Duro Adeyele, Esq.
➥ CASE FACT/HISTORY
The appellant (hereinafter referred to as the plaintiff) commenced his suit against the respondents (hereinafter referred to as the defendants) at the Omuaran High Court of Kwara State.
The Appellant sued claiming, inter alia: “an order reinstating the plaintiff into 2nd defendant’s service or that of the Kwara State Government as represented by the 3rd defendant; and (iv) an order directing the 2nd and/or 3rd defendant to cause to be paid jointly and/or severally all the outstanding entitlements of the plaintiff.”
On 13/10/94, the trial Judge, Ajayi, J. found only the 2nd defendant liable and ordered that it should pay to the plaintiff “all his benefits and entitlements since his dismissal on 25/4/84.” The 2nd defendant was dissatisfied with the judgment.
It brought an appeal against it at the Ilorin Division of the Court of Appeal (hereinafter called ‘the court below’). The court below in its judgment on 29/3/2000 allowed the appeal and set aside the judgment of the trial court. The plaintiff has brought this further appeal before this court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether since the 2nd defendant took over the business previously run by 1st defendant, he could bring the claim for his unlawful dismissal against the 2nd defendant?
RULING: IN RESPONDENT’S FAVOUR.
A. THERE WAS NO PROOF THAT THE 2ND DEFENDANT TOOK OVER THE LIABILITIES OF THE 1ST DEFENDANT
“It is to be borne in mind that in the above passage from the judgment of the trial court, the only piece of evidence which the trial Judge relied upon in coming to the conclusion that the 2nd defendant took over the assets and liability of the 1st defendant was exhibit 8.”
“On 27/7/93, without any further effort on the part of PW1 to explain the origin of the document, the document was admitted in evidence as exhibit 8. It seems to me a strange occurrence that the document could have been allowed in evidence on the meagre evidence available to explain its origin. It is stranger still that the trial court could rely on such a document, clearly of unexplained and dubious origin as a basis of the finding that the 2nd defendant had taken over the assets and liability of the 1st defendant. Such a document as exhibit 8, unsigned as it was, is incapable of establishing the fact that the 2nd defendant took over the assets and liability of the 1st defendant.”
“The appellant failed to plead and lead evidence to show that the 1st respondent in fact took over the assets and liabilities of the 2nd respondent. The appellant could have done this probably by pleading and tendering the articles of association of the 1st respondent company, a certified copy of which he could have obtained from the Companies Registry. Rather than doing that, he relied on a document (exhibit 8) which he failed to link with the 1st respondent.”
II. Whether the dismissal of the Appellant was not void but unlawful?
RULING: IN RESPONDENT’S FAVOUR.
A. THE EMPLOYMENT TERMINATION IS UNLAWFUL BUT NOT VOID
“From the above facts, it is clear that the above letter of dismissal came from a competent body. In other words, the 1st respondent was dismissed by the 2nd respondent. It follows that the dismissal of the 1st respondent cannot be void as submitted by Prince Ijaodola of counsel. By and large an employer can terminate the contract with his employee at any time and for any reason or no reason at all. If however the termination is carried out in a manner which is contrary to the terms of the agreement between the parties, the employer must pay damages for the breach of the agreement between the parties. The employee however is not entitled to general damages as in a claim in tort. He is only entitled to what he would have earned over a period required to lawfully terminate his employment. In the present case the 1st respondent is entitled to a month’s salary in lieu of notice as per exhibit 6. The termination of the 1st respondent’s employment is unlawful and not void.””
III. Whether or not the court below ought to have exercised its powers under section 16 of the Court of Appeal Act to grant the plaintiff the relief he deserved having regard to the finding by the court below that the plaintiff’s dismissal was wrongful and not void?
RULING: IN RESPONDENT’S FAVOUR.
A. THE APPELLANT DID NOT SEEK ANY RELIEF FROM THE 1ST DEFENDANT
“Earlier in this judgment I reproduced paragraph 7 of the plaintiff’s statement of claim wherein the plaintiff set out the reliefs which he sought from the trial court. Although the plaintiff expressed therein that he was claiming jointly and severally from the defendants, yet in the details of his claim set out thereunder no relief was sought from the trial court against the 1st defendant. The plaintiff instead made claims against the 2nd and 3rd defendants. It is the law generally that a court not being a charitable institution would not grant to a party reliefs not claimed from court: See Elumeze v. Elumeze (1969) 1All NLR 311 and Chief Registrar v. Vamos (1971) 1 SC 33. Even if the trial court had been minded to grant the plaintiff an award, there was no claim before it upon which to hinge such an award. It is trite that an appellate court cannot grant a party a relief which that party had not sought from the court of trial. Under exhibit 6, the plaintiff would have been entitled to an award of one month’s salary in lieu of notice but as the plaintiff made no such claim, he could not get that award. On the whole, one gets the impression that the plaintiff’s case could have been better presented before the trial court.”
“In the final conclusion, all the issues raised having been decided against the plaintiff/appellant, this appeal fails and is accordingly dismissed with N5,000.00 costs in favour of 1st respondent and N5,000.00 to 2ndl3rd respondents.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 72 of the Companies and Allied Matters Act 1990.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)