The facts leading to the appeal are as follows: The appellant's case is that he was appointed in 1981 by the 1st respondent as Manager Personnel and Administration. He rose to the post of General Manager in the 1st Respondent and occupied the position until 24/11/1992. He further claimed that he was subsequently appointed as the Managing Director of the 2nd respondent, a subsidiary of the 1st respondent. The necessary statutory documents were filed at the Corporate Affairs Commission in Abuja. He was earning his previous salary and emoluments as in the 1st respondent pending the approval of enhanced conditions of service by the 2nd respondent. It was his contention that before the Board of Directors of the 2nd respondent sat, the 1st respondent, by a letter dated 14th January 1993, informed him that his services were no longer required. It was his further contention that having failed to comply with the, Memorandum and Articles of Association of the 2nd respondent and the Companies and Allied Matters Act, the respondents were liable to pay him damages for breach of contract.
It was the respondents' position on the other hand that the appellant was merely an employee of the 1st respondent seconded to manage the 2nd respondent and that he was never appointed as Managing Director of the 2nd respondent. It was the respondents' further contention that the 1st respondent was the appellant's employer and that his appointment was lawfully terminated in accordance with the 1st respondent's conditions of service.
Clearly aggrieved, he instituted an action against the respondents for damages for breach of contract of employment. By paragraph 23 of his Amended Statement of Claim dated 20th March, 1995, he sought the following reliefs:
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1
A DECLARATION that the plaintiff is still the Managing Director of the 2nd defendant.
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2
A DECLARATION that the plaintiff as the Managing Director of the 2nd defendant company can only be removed as provided under Article 91 of the Articles of Association of the 2nd defendant company duly registered at the Corporate Affairs Commission and in compliance with Section 262 of the Companies and Allied Matters Decree 1990.
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3
A DECLARATION that the 1st defendant's letter of 14th January, 1993 written to the plaintiff by the 1st defendant is insufficient to remove the plaintiff as the Managing Director of the 2nd defendant company.
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4
AN INJUNCTION restraining the defendants from validly appointing any person as the Managing Director of the 2nd defendant or from appointing anybody to act in any capacity which to all intents and purposes is that of the Managing Director of the 2nd defendant.
ALTERNATIVELY
₦7,051,588.80 (Seven Million, Fifty-One Thousand, Five - Hundred and Eighty-Eight Naira, Eighty Kobo) as damages for breach-of contract."
In paragraph 22 of his statement of claim, he gave a comprehensive computation of his remuneration and entitlements up till retirement.
The respondents (as defendants) counter claimed as follows:
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1
An Order compelling the plaintiff to deliver forthwith to the 1st defendant the vehicles Peugeot 504 Registration Number: LA 281 AR and Peugeot 505 Registration Number LA 3361 AR.
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2
₦1,000.00 per day as special damages for alternative transportation at the rate of ₦500.00 per car from 14th January, 1993 until the date of return of the vehicles to the 1st defendant.
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3
₦100,000.00 general damages.
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4
In the alternative, ₦900,000.00 being the open market value of the said vehicles.
Being dissatisfied with the decision, the respondents herein appealed to the court below, which affirmed the decision of the trial court to the effect that the appellant's employment was unlawfully terminated and that he was entitled to damages. It however expunged Exhibit P.26, a certified true copy of the statement of claim, containing a detailed computation of the appellant's entitlements, on the ground that pleadings do not constitute evidence.
Having expunged Exhibit P.26 the substratum of the appellant's claim for damages collapsed. The lower court applied the provisions of Order 37 of the Lagos State High Court (Civil Procedure) Rules 1994 in exercise of its powers under section 16 of the Court of Appeal Act and made an order of non-suit. It is the order of non-suit that gave rise to the instant appeal.
