(04-5-09) GILL V. CANAUDMETAL

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
TODAY, FRIDAY, THE 20th DAYOF MARCH. 2009
BEFORE THE HON. JUSTICE L.G.A. MARSH-JUDGE

BETWEEN:- SUIT NO.ID/2012/2002

MR. TEDIUS PAUL GILL ... ... ... ... ... CLAIMANT
(Substituted by the Order of Court made on the
30th of June 2008 for himself and on behalf of
the Estate of Late Anthony Adolph Gill)
AND
CARNAUDMETAL BOX NIGERIA PLC. ... ... DEFENDANT

JUDGMENT

Claimant in the amended statement of claim wherein he seeks the following
reliefs against the defendant:

Terminal benefits and entitlement owed the Claimant
by the defendant Company - N30,574.500.00
Solicitor's fees and cost of this suit - N 7.643.625.00
TOTAL - N38.218.125.00
Interest on the terminal benefits at the rate of 30% per annum from June 30, 2002 until judgment sum is fully paid.
The Defendant by an amended statement of defence averred that the Claimant's claim is frivolous, vexatious, gold digging and an abuse of the process of Court and ought to be dismissed with cost.
The Claimant filed amended reply to the amended statement of defence. The suit proceeded to trial on 20th February 2007. Claimant adduced the evidence of two witnesses while the Defendant called only one witness and closed its case. The first Claimant hereinafter referred to as CW 1) Olusegun Otenaike, a retiree and now a consultant. His testimony is as follows:- He knows both Claimant and the Defendant. He retired from Defendant's service.
He tendered the following documents: His written statement Exhibit "A". -
He said he referred to some letters in paragraph 9 of his Exhibit "A". These letters he tendered as Exhibit "B". He tendered Exhibit "C" which he said he refereed to in the same paragraph as letter of appointment.
In paragraph 16 of Exhibit "A", he said he referred to performance review discussion. This he tendered as Exhibit "D".
In paragraph 20 and 21, he referred to a company's policy in existence signed by one Mr. Cole Exhibit "E".
He said he stated in paragraph 17 of Exhibit "A" that long service award ceremony was held in 1999 in honour of the Claimant at which he was a witness to the certificate and gift presented to him. The ceremony was held at a restaurant in Awolowo Road, Lagos. The presents given to the Claimant by one Mr. David Pullen were tendered as ID 1 and ID 2. One Raymond Weill Wrist Watch and a certificate of long service.
Cross-examined, witness admitted he was employed by the Claimant in 1970 by the Crown Cork and Seal Co. Ltd. The company had been sold and no longer in operation. Witness admitted he rose to the post of Managing Director when the company was still in operation. The Claimant was the Managing Director before he assumed that office. He could not remember when he became the Managing Director. The decision that he should assume the post of Managing Director was taken at the board meeting. He could however not say whether the minutes were taken at the meeting. He worked closely with the Claimant for many years and he's familiar with his signature. If shown a document bearing the Claimant's signature, he would identify it. He identified Exhibits "F and F1”. Witness said he was a controller of the company in 1999 while the Claimant was the Managing Director but he was not the one that made the award to himself. He said the award was presented by David Pullen but signed by Mr. GUI, the Claimant as Managing Director. David Pullen was the Overseas Director. He admitted that there was no reference to David Pullen on ID 2. After having had a look at Exhibit "F". Clause 3 and said that on the date mentioned, the Claimant resigned on medical ground. He also said he was not appointed to succeed Claimant on that day and was not sure his appointment took effect on that day. When he joined the company, witness said the Defendant was there and he employed him. Witness said he was told that the Claimant was employed in 1969 and he employed him in 1970. He was with Crown Cork in 1969.
Re-examined: Witness said the Claimant did not retire but resigned as the Managing Director. He said his appointment as Director was not confirmed that day as he had to be given a letter to that effect. The Claimant continued as Chairman.
CW 2 - the Claimant, testified that he was employed in Nigeria by the Crown Cork and Seal Company Nigeria which is part of the Crown Cork U.S.A. In the late 1990’s, he said Crown Cork worldwide took over Carnaudmetal Metal Box Worldwide here in Nigeria. There were three companies - two of them were owned by Crown Cork and Seal while the 3"1 was owned by Carnaudmetal Box. The three companies, he explained were merged together and became known as Carnaudmetal Box Ltd. (Crown Cord & Seal Company). When they were merged, he said he had various positions which were detailed in his written statement on oath Exhibit “G".
He also tendered the following documents. Exhibit "H", copy of the contract referred to in paragraph 3 of Exhibit "G". a wristwatch. Exhibit “J” referred to in paragraph 9 and Exhibit ''K", the copy of the letter by Claimant's Solicitor and letter dated 10th October 2002 and the reply dated 29th October 2002 Exhibits "L and LI".
He also tendered Exhibit 'W letter dated 2nd August 1991 by one Holdron confirming his appointment as Deputy Chairman, also his performance review Exhibit “N” a letter dated 12th June 2001 by one John Conway and another dated 12th June 2001 by David Pullen.
Also the following letters by David Pullen: letter dated 5th April 2001, 9th April 2002 and E-mail dated 28th May 2001 by David Pullen. Exhibits P - P3, the bill of cost, Exhibit "G" and long service award earlier tendered as ID 2 now marked Exhibit "R”.
Cross examined, witness admitted being familiar with Exhibit "A”, and its content and that it is the basis of his claim. He told the Court that at a time he was the Managing Director of Crown Cork and that as Managing Director he presided over Board of Directors meeting and that the minutes of the meeting were taken by the secretary which he later signed. He admitted he signed Exhibit "S".
Witness said the merger between Crown Cork and Carnaudmetal Box took place about 1997 - 1998 in Nigeria and Worldwide. He said merger took place sometimes in 1995. When the merger took place, he said he was asked by the Vice President Carnaudmetal Box to get involved initially with Carnaudmetal Box where there had been some fraud by various managements employed at that time and on a daily basis. He said he travelled from Ibadan to Agbara in Ogun State and helped to reorganise the company eventually handled the sale of their company to Levends Group. After that he said he was asked to go back to Ikeja where there are still two functioning companies. Crown Cork and Seal and Camaud Nigeria Ltd. He said he was asked by both Carnaudmetal Box U.K. and Crown Cork and Seal, U.K. to coordinate the merger of the three Nigerian companies.
After having had a look at Exhibit “T" as directed witness said it reflected the arrangement as he had earlier stated. The arrangement was to cover his normal responsibility with Carnaudmetal Box. He denied being the Managing director of Carnaudmetal Box in 1999 but its Chief Executive Officer. He admitted being presented with Exhibit "R" in 1999 and that Exhibit "R" was signed by him as the Managing Director. Asked why as Chief Executive Officer he also signed Exhibit “V” as Managing p Director, witness explained that there was no difference between the two. All companies UJ operating in Nigeria operate a system whereby after 10, 15, 20 or 35 years in service a certificate is awarded to their employers. It is normally given at the annual Christmas party and that as Chief Executive Officer of the company, he was authorized to sign on behalf of the company because, he was the Senior Executive there. Exhibit "R" he said was awarded to him by the Financial Director but authorised by David Pullen, the Vice President (Africa). He admitted signing Exhibit "R" which he said was a certificate, not an award. He admitted stepping down as M.D. in 1991 on medical grounds. He also admitted that Exhibit "Fl" contained something relating to his stepping down as M. D. in 1991 on medical grounds. He also admitted that Exhibit "Fl" contained something relating to his stepping down as M. D. in 1991. He tendered his term of Employment Exhibit "H". He admitted that Exhibit "H" was a reflection of his arrangement with the company and became effective from March 5. 1980. It does not bear a Nigerian address and in agreement with the law in the United Kingdom. There's no part of it, he admitted that talks about the law in Nigeria and the currency too is not Nigerian. Asked why he had to give medical ground as the reason for his resignation at Crown Cork in 1991, witness told the Court that in 1991 there were series of scandals in the United Kingdom regarding pension fund. The very notorious one he said, was that of the Daily Mirror where they were defrauded. He said he had to look for a way to protect his pension fund. That the company suggested that if he was able to provide medical ground as a reason, they would be able to pay him off particularly as he was not resident here. Asked farther whether it was correct that he retired on medical grounds, witness reacted by saying the document has told the truth, that he resigned on medical grounds. He farther stated that he was employed in 1996 by Carnaudmetal Box as Regional Director. That his term of employment is contained in Exhibit "V” and had dealings with Crown Cork Coordination centre. When he was employed by Carnaudmetal Box, witness said he was in Nigeria but some of the discussions between him and Carnaudmetal Box took place in Nigeria and others outside. Some of the discussions is also contained in the memo by the coordinator centre New York, Exhibit "V”. Some letters, he said were sent to his house address in Spain because he used to spend part of his holidays in Spain from time to time. He denied that the pain on his hips affected his performance. He denied that he was employed outside Nigeria. He said he was subject to immigration law and hence the reason why his letter as address to his house in Spain. He said David Pullen was the assessor of his performance review. He said David Pullen never had to sign and he did not sign his assessment. He admitted that he was paid certain pensions. Asked at what stage was he entitled to pension, whether after service or before service. Witness told the Court that it depended on the circumstances. He said he once stated that he resigned on medical grounds and resignation had nothing to do with pension.
Re-examined, PW 1 said at the time he was paid his pension he had not resigned. DW 1 - Adebayo Joseph Oladele. He works with NAMPAK Nigeria Plc formerly Carnaudmetal Box. He deposed to a written statement Exhibit "Y". He knows Emeka Anyacho. Human Resources Controller of the company. He's no longer with the company. When he was with the company, he deposed to a written address. He tendered the written deposition. Exhibit "Z".
TO BE CONTINUED

CONTINUED FROM LAST WEEK
Cross-examined, witness told the Court that Nampak Nigeria Plc and Carnaudmetal Box metamorphosed into Nampak Nigeria Plc. He said Nampak bought over Carnaudmetal Box. He was not employed by either of the two companies. He said he was employed by Metal Box Company. He told the Court Camauld bought Metal Box and the name became Carnaudmetal Box. Later Crown Cork bought over Carnaudmetal Box and the name became Carnaudmetal box Crown and Seal Company. In the year 2002, he said, Nampak bought over Carnaudmetal Box and Cork and Seal Company. Nampak bought Carnaudmetal Box in 1995. He said he was not sure the information he gave was correct but was sure Nampak bought over the Defendant Company in the year 2002. He knew the Claimant. He met him in 1996 when he, the witness was the Sales and Marketing Controller. He admitted that Claimant was paid his entitlement in 1991. He said the Claimant did not hide the fact that he was invited from retirement to conclude the merger exercise. The only evidence he had on the payment of his entitlement was the Claimant's own statement. He said the Claimant was employed Overseas and retired in Nigeria and it is only where he was employed that the documents relating to his employment would be. Wtness said it did not lie within his jurisdiction to get the Claimant's pay off paper. By that, he meant his retirement benefit. He said the Claimant was paid his total benefits and emolument upon his voluntary retirement from service in the year 2002. He had no documents to show for that but went on to say that it was traditional for anyone in the Claimant's level who retired from the company to retire with his vehicle and his entire payment. That in the case of the Claimant, he went with two vehicles. He was Chairman of Crown. He did not retire in the year 2002. He retired in 1991. Witness said he was not there when the Claimant retired in 1991 but from Exhibit "M" shown to him. the Claimant was to visit the company four times in a year, that he could play the role of Executive Chairman. Performance review discussion, he explained was about meeting with top management to review the performance of the past year and to chart a part for the New Year. He confirmed that Exhibit "N" was the performance review on the Claimant in the year 2000 while Exhibit "D" was the performance review discussion on the Claimant. Mr. Tony Telford, he said. Wrote the review while David Pullen, the African Director of Crown wrote the report on the Claimant. Exhibit "P". he said was sent to Tony Telford on 29th May, 2001 and by Exhibit "P", he went on, the Claimant was appointed Deputy Chairman of Carnaudmetal Box Nigeria with responsibility for Corporate affairs. He was aware of the long service award in 1999 but was not aware that Claimant was given long service award Exhibit “R”. Emeka Emenacho was his colleague but he could not tell why he retired from the company. With this witness, counsel for the Defendant closed his case. Below is a resume of the evidence by the Claimant:
Claimant - Witness was employed by Claimant at Crown Cork and Seal Company Nigeria Ltd. He tendered Exhibit "A". In his Exhibit "A", he said the Claimant continued as Regional Director and Civil Executive of Carnaudmetal Box until he retired on 30th June 2002. He said in his Exhibit that Claimant was employed by Crown Cork and Seal United Kingdom in 1980 and posted to Nigeria in 1980 as alleged by the defendant because the Claimant was the one who employed him in 1970 in Nigeria and he was then Regional Director and general Manager. That Claimant later became the Managing Director of the Company until the merger and that after the merger he continued as Chief Executive of the Defendant's company. That Claimant did not resign his appointment on medical grounds as Managing Director in 1991. That a long service award ceremony was held in 1999 in honour of the Claimant at which he was a witness. He said the award took place at a restaurant in Awolowo Road, Lagos. Claimant was given two presents at the ceremony. One Raymond Weill wristwatch and a certificate of long service award.
By 1970, Crown Cork and Seal had been sold and no longer in operation. Witness assumed the post of Managing Director. The decision was taken at a board meeting. He could not say whether any minute was taken. Claimant did not make the awards to himself. The award was presented by David Pullen, the Overseas Director. He later shifted and admitted that Claimant resigned on medical grounds. That he was not appointed to succeed the Claimant on the day the board meeting was held that is Monday 2. September. 1991. Exhibit "Fl" Clause 3 titled acceptance of Mr. Gills Resignation as Managing Director - stated that Mr. Gill (the Claimant) resigned as Managing Director of the Company with effect from the date (2nd September 1991). The resignation was on medical grounds. Exhibit "Fl" showed that witness was not confirmed as a Director that day. He further shifted grounds after having had a look at Exhibit "Fl" and said the Claimant did not retire but resigned as Managing Director.
CW 2 tendered his statement on oath. Exhibit "G". He also tendered Exhibit "H", his terms of employment with Crown Cork Company Limited. It states that the employee is engaged by the company as Director and General Manager in Nigeria in such capacity as maybe agreed on the following terms and conditions from 1st January 1980. The condition list among others clause (a) that the employee's commencement salary shall be at the rate of #42.000 per annum and shall be payable monthly in arrears on the 1st day of each month.
Clause (m) of Exhibit states that this contract shall be construed in accordance with the law prevailing in the United Kingdom. Witness admitted that Exhibit "H" was a reflection of his arrangement with the company and became effective from 5th March 1980. It does not bear a Nigerian address and is in agreement with the law in the United Kingdom. Witness said he was employed in 1996 by Carnaudmetal Box as Regional Director. That his term of employment is contained in Exhibit "V". His health deteriorated and he was advised by Dr. Laws H. Sevitt. his doctor, a surgeon based in United Kingdom to retire in the interest of his health. Exhibit "IT minutes of the meeting of 2nd September 1991. Exhibit ^Fl" that Claimant retired in 1991. He was employed in Nigeria but some of the discussions relating to his employment took place in Nigeria and other outside the country. He said some of the discussions on his employment were contained in memo by Coordinating Centre New York, Exhibit "V". Some letters were sent to his house address in Spain Villa Ikeja, 7, Carrino de Marco Plaza, Mucharista Campello - Alicante Spain. Witness explained that the reason why his letter was sent to Spain was that he was subject to immigration law. He confirmed Exhibit "W" and admitted he collected pension on his retirement but remained in employment.
Resume of Defendant's evidence. Adebayo Oladele - deposed to written statement on oath Exhibit "V. Knew Claimant in 1996 when he, the witness was the Sales and Marketing Controller. Claimant was employed Overseas and retired in Nigeria. That it is only where he was employed that the document relating to his employment would be. It was not possible to get the Claimant's pay-off paper. He was paid his total


benefits and emolument upon his voluntary retirement in the year 2002. Witness had no document to show for the payment but he retired with two vehicles and his entire payment. He retired in 1991 not 2002.
Both counsel filed written addresses which they adopted on 21/1/09. The Defendant in his written address posits the following issues for determination:-
1. Whether in view of the parties to the terms of employment of 1980 Exhibit "H". the proper panics are before the Court.
2. Whether in view of Exhibit "Fl", the Claimant's action is not statute barred.
3. Whether in view of Exhibit "H" - Terms of Employment of 1980 which is the foundation for the Claimant's claim, whether the Lagos State High Court has jurisdiction to entertain the Claimant's action.
4. Whether in view of Exhibit "FF minute of2Dtl September, 1991, Exhibit "H” the medical report. Exhibit "W". the letters of Claimant's pension payment, the Claimant's first contract of employment did not terminate in 1991.
The Claimant in his written address also posits three issues for determination. These are:-
i. Whether the Claimant was in continuous and unbroken employment of the Defendant Company for 33 years from 1969 - 2002 when he finally retired.
ii. Whether the Claimant is entitiled to the severance package on retirement in 2002 as stated in clause (c) of the terms of employment contract signed by the parties in 1980 (Exhibit "H").
iii. Whether the Defendant Company is estopped from denying that the Claimant served and worked for the Defendant Company for a continuous period of 33 years,
The issue I consider appropriate and which I will adopt for the determination of the suit is whether the Claimant has established that he's entitiled to the relief claimed.
By Exhibit "H", the term of employment between Claimant which also forms the basis of the Claimant's claim among others, reads in part that employee is engaged as Director and General Manager in Nigeria in such capacity as may be agreed on the following terms and condition from 1st January 1980:
The employees commencing salary shall be at the rate of#s42.000 per annum and shall be payable monthly in arrears on the I"1 day of each month. It however ended by saying in clause (m) that there contract shall be construed in accordance with the law prevailing in the United Kingdom. Thus, in the event of any dispute such as the present, the Nigerian Court has no jurisdiction because the parties to the agreement had already indicated that in their agreement.

See: VAD1SNIG. LTD. VS. GREAT NIG. INSURANCE CO. (2007) 4 - 5 SC 236 AT260.
This Court cannot therefore consider clauses B and C of Exhibit "H". Claimant was advised by his doctor, one Dr. Laws H, Sevitt, consultant physician of 141, Hariey Street wrote to suggest that the Claimant should retire in the interest of his health. Pursuant to the advice, the Claimant on Monday. 2nd September 1991 at the board meeting of the company tendered his resignation as Managing Director of the company with effect from that day. It was resolved that resignation of the Claimant, A. A. Gill as Managing Director be and was accepted. Claimant was paid his entitlement 1991. He was paid his total benefits and emoluments. He retired with effect from 30111 September, 1991. Exhibit "M”, a letter written to him reads:

2nd August. 1991.

Mr. Tony Gill,
Crown Cork & Seal Co. (Nig.) Ltd..
P. 0. Box 142.
Ikeja, Nigeria.

Dear Tony,

I write to confirm acceptance of your resignation as Managing Director effective 30 September 1991 and to confirm your appointment as Executive Chairman effective 1st October. 1991.

In this new role you will be expected to visit the companies at least four times per annum and expenses relating to these visits will be reimbursed by Crown Cork in Nigeria.

Yours sincerely.

Sgd. Richard L. Holdron
Managing Director.
He collected his pension #s220,000.00 vide Exhibit "W". Cross-examined by counsel for the Defendant, Claimant admitted receiving his pension but was still in employment. The author of Black's Law Dictionary 6th Edition defines retirement and pension as:
Retirement: Termination of employment, service, trade or occupation upon reaching retirement age or earlier at election of employee.
Pension: Retirement benefit paid regularly, with the amount of such based severally on length of employment and amount of wages or salary of pensioner. Deferred compensation for services rendered.
By a letter dated 13th June 1996. Exhibit "X and T", the Claimant was recalled from retirement and offered the position of Regional Director for Nigeria. As Regional Chairman, the letter indicated that he would still retain his position as Chairman of both Crown and CAN makers but would add the role of Supervisory Director for Carnaudmetal Box Nigeria Pic. The two letters were sent to the Claimant at Villa Ikeja, 7. Carrino de Marco Plaza Mucharista Campello, Alicante, Spain. I agree with the Defendant's counsel that a letter cannot be sent to a person in Spain if such a person is resident in Nigeria.
Cross-examined as to whether other letters addressed to him earlier were directed to a Spanish address. Claimant replied that the letters were addressed to his house in Spain. That he spent his holidays in Spain from time to time. On further cross examination as to whether Carnaudmetal Box employed him outside Nigeria, he replied that he was subject to immigration law, hence the reason why the letters were written and addressed to his house in Spain. That to me sounds ridiculous and only serves to show that Claimant was up to some mischiefs and bolsters up the Defendant's case that the contract of employment the Claimant entered into from 1"* January 1996 was a new contract, not an extension of the 1980 contract.
I accept the fact that the Claimant was the Managing Director in 1999 when Exhibits **N. R and J" were made. He was cross-examined as to why he signed Exhibit "R" as Managing Director while he had earlier referred to himself as Chief Executive Officer. Claimant replied that there was no difference, that all companies operating in Nigeria operate a system whereby after 10, 15, 20. 35 years a certificate is awarded to their employees. That it was normally given at the Annual Christmas Party and that as Chief Executive Officer of the company, he authorized and signed on his behalf.
I must say that upon all the foregoing considerations, I found it hard to believe that the Claimant not hand to fool the Defendant, establish long service and hoodwink the Court. I found it hard to believe the evidence of the Claimant. I accept that of the defence wherever it conflicts with that of the Claimant. I must say the Claimant had failed to establish his claim. Claimant's case is accordingly dismissed.

L.G.A. MARSH
(JUDGE)