Yalaju-Amaye v AREC Ltd & Others (SC 198/198) [1990] NGSC 46 (28 June 1990)

Yalaju-Amaye v AREC Ltd & Others (SC 198/198) [1990] NGSC 46 (28 June 1990)

In The Supreme Court of Nigeria
On Friday, the 29th day of June 1990
SC 198/1986
Between
Engineer Samuel Diden Yalaju-Amaye ....... Applicant
And
Associate Registered Engineering Contractors Ltd
Chief Daniel M. Ejoor
Mr. Robinson Odeji Enisuoh
Gabriel Menetie Okitikpi
Eng., Philip Ebele-Chukwu Okoye
Forcados O. Obodo
New Nigeria Bank Ltd
I.B.W.A. Ltd. ....... Respondents

Judgement of the Court
Delivered by
Karibi-Whyte ,J.S.C.
The gravamen of the issues argued in this appeal are around contentions whether appellant was validly removed as the Managing Director and Director of the 1st respondent and surrendered his interests in the Company and whether he can institute this action in respect of the wrongs he claimed were done by the 2nd-6th respondents.
Appellant is an Engineer and until the 21st August, 1979 claimed to be and was accepted by all as the Managing Director of the 1st respondent Company. He was also together with the 3rd, 4th and 5th respondents, (Directors of the 1st respondent company) a promoter of the 1st respondent company. The 2nd and 6th respondents subsequently were appointed Directors of the 1st respondent Company. The 7th respondent was the original bankers of the 1st respondent Company. The Eighth respondent became its banker when dispute arose as to the control of the finances of the Company. The protracted litigation which emanated from the disagreement has come on appeal to this court, having arisen from the resolution to dismiss the 1st respondent as Managing Director of the 1st respondent Company, by the 2nd-6th respondents, and the purported disposal of his interests in the 1st respondent Company. Appellant is said to have 15,834 shares in the 1st respondent Company.
The main Issues this Court is called upon to determine in this appeal are (i) whether the resolution dated 20th August, 1979 by the 2nd-6th respondents to accept the resignation of the appellant as Managing Director of the 1st respondent Company. and for the purported disposal of the interests of appellant in the 1st respondent Company is valid. (ii) Again whether appellant is the proper plaintiff to bring action in respect of the wrong doings he has alleged against the 2nd-6th respondents.
The facts as stated by learned Counsel to the appellant in his brief of argument, are quite involved. They suffer from the inclusion of avoidable details. The salient facts of the case are as follows –
Appellant, as Engineer by profession, conceived the idea to incorporate the 1st respondent Company and invited the 3rd-5th respondents. The 5th respondent is also an Engineer. On formation of the Associated Registered Engineering Contractors Ltd. the articles of Association of the Company, named appellant as the Managing Director, and the 3rd-5th respondents as Directors. The provisions of articles 88 and 99, 22-32 Table A of the of the first Schedule to Companies Act, 1968 were expressly excluded. 3rd respondent was elected Chairman. Sometime later and about 1975 the 2nd and 6th respondents were appointed Directors and Shareholders of the 1st respondent. The share situation of the Company is that the 2nd-6th respondents held 83.3% of the shares in the 1st respondent Company, whilst appellant the balance of 16.6%.
Sometime in 1975 the 2nd respondent was elected chairman of the Board of Directors of 1st respondent Company; and became actively involved in the supervision of the execution of the contractual projects of the 1st respondent Company.
20th August, 1979 in a meeting of the Board of the 1st respondent was disagreement between the plaintiff, as Managing Director and the 2nd respondent, Chairman, supported by the Directors of the 1st respondent as to whether the plaintiff or the 2nd respondent should be in control of the supervision of a particular project. In the ensuing heated argument, the rest of the Directors claimed, but the plaintiff denied, that plaintiff had orally resigned his appointment as Managing Director and Director of the 1st respondent Company and to dispose of his entire interest in the Company.
On the 21st August, 1979. Plaintiff received a letter No.CMD/5/79 dated 21st August, 1979 (Exhibit 3) signed by the 2nd respondent informing him that pursuant to an extraordinary general meeting of the 1st respondent Company. held on that day, his oral resignation as a director and Managing Director of the 1st respondent Company, and also his decision stated orally to dispose of his entire interest in the Company was accepted. Plaintiff protested to the 2nd respondent denying that he ever made the representation as claimed in the letter at the meeting of the Board of Directors of the 20th August, 1979. Plaintiff claimed that he had since the 21st August, 1979 been prevented from participating in the affairs of the company, and had never been invited to any' meeting of the Company, in his capacity of director, Managing director or shareholder. He also claimed that he has received no remuneration in his office of Managing Director, and has not been paid any dividend in respect of shares held by him.
After the purported removal of the plaintiff as Managing Director. on the 21st August. 1979, the Board by resolution appointed 2nd respondent who was the Chairman. as the Managing Director of the Company. 2nd respondent therefore became Chairman and Managing Director of the company. Again. when as a result of the protest to the 7th respondent Bank, by the plaintiff. in June. 1950 the 2nd respondent opened an account for the 1st respondent Bank. 2nd and 6th respondents became the signatories to this account on the 2/8/79.
After the purported removal of the plaintiff tile 1st respondent Company was run by the 2nd to 6th respondents, on the 13th November, 1979, the plaintiff brought an action before the Federal High court, Benin City, claiming as follows –
1. Against the 1st to the 6th defendants a declaration:
(a) That he was and is still the Managing Director, Director and Shareholder of the 1st defendant company.
( b) That the purported appointment of the 1st defendant as Chairman or Chairman/Managing Director of the 1st defendant company is illegal, void and ultra vires the Memorandum and Article of Association of the 1st defendant company.
2. An order of Court setting aside the letter No. CMD/5/79 of 21st August, 1979 written by the 2nd defendant to plaintiff informing the plaintiff of the purported resolution of the 1st defendant Company removing the plaintiff as the Managing Director, Director and Shareholder of the 1st defendant company.
3. A declaration that all acts done and duties performed by the 2nd and 6th defendants either as Managing I Director, Director or Shareholder of the 1st defendant company are void, illegal and of no effect.
4. An order of court that the 2nd and 6th defendants should refund forthwith to the 1st defendant company all monies, remunerations, dividends and other benefits received by or for them as Managing Director, Directors or shareholders or in any other capacity whatsoever.
5. A declaration that the plaintiff is entitled to be paid all his remunerations, dividends, benefits and allowances as from the 21st of August, 1979 up to the date of judgment of this suit.
6. An order of injunction restraining the 2nd to the 6th defendants and their agents and servants from operating the accounts of the 1st defendant company in the 7th and 8th defendants' Banks without prior consent or approval by the plaintiff.
7. An order of court that the 2nd to the 6th defendants should render full account of all their dealings in the name of the 1st defendant company from the 21st of August, 1979 up to the date of the judgment in this suit.
8. IN THE ALTERNATIVE, the plaintiff claims from 1st to the 6th defendants jointly and severally the sum of N1,300,000.00 (one million, three hundred thousand Naira) being special and general damages for the wrongful removal of plaintiff as Managing Director, Director and shareholder of 1st defendant company by the 1st to the 6th defendants.
PARTICULARS OF SPECIAL DAMAGE
Loss of salary at N11.780 per annum for l0 years. 117,800.00
Loss of Director’s remuneration for 40 years at Nl0,000 per year. 400,000.00
Loss of Driver’s allowance at Nl20 per month for 10 years. 14,000.00
Loss of Night-watchman allowance at N120 per month for 10 years. 14,000.00
Loss of Car basic allowance at N 60 per month for 10 years. 7,200.00
Loss of Estimated dividend at 50k per share l5,834 shares of N 1 each for 40 years 316,680.00
Loss of Present market value of 15,834 shares as per valuation report. 154,000.00
General Damage. 275,520.00
Total 1,300,000.00
Parties filed and served their pleadings in the action. Oral evidence was given at trial and witnesses were examined, cross-examined and where necessary reexamined. The learned trial Judge after making specific findings of facts gave judgment to the Plaintiff on the alternative claim. He award for damages of N 275,000. In his judgment, the trial Judge made the following findings of fact-
(i) That notice of an Extra-Ordinary General Meeting of the Company for 2118179 was given was not true.
(ii) That the evidence of the 7th defence witness Sunday Igbineweka, the Secretary of the Company was not true.
(iii) That the appointment of signatories to bank cheques decided in a meeting on 2118/79 at I p.m. was an after thought.
(iv) The minutes of the meeting at 1 p.m. on 21/8179 was a forgery, created to cover the absence of any resolution to change the signatories.
(v) That appellant did not give notice of his oral intention to resign as Managing Director, nor did he relinquish his shares.
(vi) That 2nd respondent shouted at the appellant during the meeting of 20/8/79 to resign or if he did not he would be removed from his position as Managing Director.
(vii) Account No.9394 opened with the New Nigeria Bank, Lagos, was with the knowledge and consent of the Directors.
(viii) Appellant did not resign as Managing Director of 1st Defendant on the 21st August, 1979
(ix) The explanation that money was withdrawn by the Directors to pay contractors was not satisfactory.
Though these findings related to the specific claims, the learned trial Judge made no declaration in respect of any of them. Thus the trial Judge rejected the defences of the defendants and accepted the claims of the plaintiff. He held that the claim succeeded against the lst-6th defendants. But he awarded damages only in respect of the alternative claim and gave his reason for the general damages, which was that
… the award be such as would atone for the assault on the plaintiff's right which was unjustified ably invaded and it must reflect the reaction of the law to the imprudent and illegal exercise in the course of which the invasion was unleashed.
The defendants appealed against liability and damages on four grounds. Plaintiff also cross-appealed. Plaintiff relying on four grounds of appeal complained about the inadequacy of the damages awarded, and the failure to grant the declaration and special damages claimed.
The Court of Appeal allowed the appeal and set aside the judgment of the trial Judge. Without interfering with the findings of fact made by the trial Judge the court below went on to allow the appeal on the grounds of (a) want of jurisdiction in the trial court, (b) awarding damages on principles not known to the law (c) lack of locus standi in the plaintiff. Plaintiff's cross-appeal was summarily dismissed.
The plaintiff who was cross-appellant in the Court below has further a~ pealed to this Court, relying on thirteen grounds of appeal. The grounds of appeal before this Court would seem to me to have taken into consideration the errors alleged by the appellant against the judgment of the High Court in the cross-appeal in the court below and the errors alleged against the judgment of the court below allowing the appeal of the defendants/respondents.
The thirteen grounds of appeal filed cover the issues of jurisdiction, validity of the removal of the appellant and the considerations of the rule Foss v. Harbottle, one of the reasons which the court below founded the decision allowing the appeal. Learned Counsel has formulated nine issues for determination which could quite conveniently be grouped under the heads of the grounds of appeal.
I do not consider it necessary to set out the grounds of appeal and the issues for determination. I prefer to discuss the issues for determination in relation to the grounds of appeal covered by them instead of considering them separately and in isolation. This will enable me to avoid the problems of prolixity and repetition which will result from adherence to the pattern adopted by counsel to the appellants. Learned Senior Counsel to the respondents Sogbesan, S.A.N. prefers a formulation of the issues for determination which challenges the judgment of the Court of Appeal for striking out the entire claim of the plaintiffs, and in dismissing their cross-appeal. He regards these as the only issues for determination.
Whilst I accept these two issues as crucial and sum up all the other issues relevant to the determination of this appeal, it is still better to spell out the other relevant issues for better elucidation of the issues involved.
I have pointed out the scope and content of the grounds of appeal. I am not satisfied with the prolixity of the issues as formulated by Counsel to the appellant. I am equally uncomfortable with the terseness of the formulation by learned Senior Counsel to the respondents. Either formulation obscures the real issues between the parties.
Analysing of the claim before the trial Judge discloses that the issues be-fore him were for a determination of the validity of the purported resolution to accept the oral resignation of the plaintiff and for a surrender of his interests in the Company; the validity of the resolution of the Board of Directors of the 1st respondent Company appointing 2nd respondent as its Managing Director; whether plaintiff can bring action against the 2nd-6th defendants to set aside all actions by them and for them to render account to him in respect of their dealings with the 1st defendant Company; Injunction restraining the 2nd-6th defendants from operating the accounts of the 1st defendant Company. In the alternative, plaintiff claimed special and general dam-for wrongful removal as Managing Director, Director and shareholder 1st defendant Company by the lst-6th defendants.
In my opinion, the issues for determination in this appeal can be formulated into the following questions –
1. Whether the Court of Appeal was in error that the Federal High Court had no jurisdiction to hear and determine the claim by the plaintiff against the defendants in respect of his removal as Managing Director of the 1st defendant Company.
2. Whether the resolutions by the 2nd-6th defendants purporting to accept an oral resignation of the plaintiff from his position of Managing Director, and Director of the 1st defendant Company, and his interests in the 1st defendant Company is valid.
3. Whether the plaintiff can maintain action against the 2nd-6th defendants in respect of wrongs done by them against the 1st defendant Company.
4. Whether the Court of Appeal was in error in setting aside the damages awarded to the plaintiff.
Appellant relying on Ojogbue & Anor. V. Nnubia & Ors. (1972)6 S.C.227 has complained that the Court of Appeal struck out the entire claim without considering each and every claim made in the statement of claim. It was submitted that the court has a duty to consider each of the claims and make specific findings on them separately before entering judgment. It was argued that failure to do this shows that both the appeal and the cross-appeal had not been properly heard and determined.
I have found it difficult to discern any merit in this complaint. I accept the submission of learned Counsel to the respondents that there is no set pat-tern or order in dealing with claims made before the Court. The duty of the Court is to deal with all the claims before it properly. Once this is done, it is no valid complaint that the separate claims were taken out of turn and decided. However, where a Judge in his judgment relies on a point of want of jurisdiction on the part of the Court, or lack of competence on the part of the plaintiff in bringing the action, the action can and ought to be determined, without the necessity of considering each of the claims before the court. See Amokomowo V. Andu (1985) 1 NWLR (Pt.3) 530; Bello v. Eweka (1981) 1 S.C.101. However, in the instant case the Court of Appeal could hardly be justifiably accused of not considering each of the head of claims before it. The record of the judgment of the Court of Appeal, shows that it actually considered each of the heads of claims before the learned trial Judge and determined them in the light of the arguments of counsel and the judgment of the learned trial Judge. It is convenient to deal at this early stage with the issue of jurisdiction which seems to me the hub on which decision of the court below revolves. It is also ground eight of the grounds of appeal, and inextricably bound up with the first issue formulated by me in this appeal, and issues Nos.5 and 7 by the appellant. It is settled law that where the issue of want of jurisdiction succeeds, there the case ends and the striking out of all the claims by the Court of Appeal will remain valid.
The Court of Appeal referred to section 7(1)(c)(i) of the Federal High Court Act, 1973, sections 230 and 231 of the Constitution 1979, and the Court of Appeal decision in Eka V. Onagoruwa & Anor., and accepted the submission of Counsel to Appellant and held that the claim in respect of the removal of the plaintiff as Managing Director, and Director of the 1st defendant Company, was not a claim within the provisions of S.7(1)(c)(i) of the Federal High Court Act, 1973 which relates to the operation of the Companies Act, 1968. It was held that a Managing Director is a servant of the Company, and his claim for damages is akin to a claim for wrongful dismissal and is not within the jurisdiction of the Federal High Court.
Learned Counsel to the appellant has contended in his brief of argument and orally before us that the issue of competency of plaintiff to institute the action or of the Federal High Court to adjudicate was not raised in that Court in the pleadings of the parties and was therefore not an issue between the parties. Relying on the cases Overseas Construction Co. (Nig.) v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt.13) 407;
Adeniji V. Adeniji (1972) 4 S.C. 10; Shitta-Bey V. Federal Public Service Commission (1981)1 S.C.40 it was submitted that the judgment should be set aside. Again the question whether the claims of the plaintiff were in respect of personal or corporate rights was never an issue. The crucial issue in the action was whether or not the plaintiff resigned as Managing Director, Director, or whether lie relinquished his shares to the other directors. Concisely stated, it is whether the claims of the Plaintiff are in respect of "matters arising from the operation of the Companies Decree or any other enactment regulating the operations of Companies incorporated under the Companies Decree 1968.
It is pertinent to refer to the provisions of section 7(1)(c)(i) of the Federal High Court Act, which relates to jurisdiction. It states as follows:-
The Federal High Court shall have and exercise jurisdiction in civil causes and matters arising from the operation of the Companies Decree, 1968 or any other enactment regulating the operations of Companies incorporated under the Companies Decree, 1968.
The appointment and removal of a Managing Director or Director of a Company is governed by the provisions of section 172, 175 of the Companies Decree 1968, and Table A schedule 1 (i.e. common form Articles of Association). Jurisdiction is determined by the claim of the plaintiff. The claim in instant action is with respect to the declaration that plaintiff is the Managing Director of the 1st defendant, and the validity of the purported acceptance of the alleged oral resignation of the plaintiff as the Managing Director of the 1st defendant Company.
The tenure of the office of Managing Director is governed entirely by the provisions of the Companies Decree. Hence the determination whether Managing Director was properly appointed, or has ceased to hold office is a matter arising from the operation of the Companies Decree - See Articles 75 and 80.
The Court of Appeal expressed the view that the remedies sought by which was a claim for wrongful dismissal was not one recognised Companies Decree and not within the jurisdiction of the Federal High court. The plaintiff's remedies as provided by the provisions of section 201 of the Decree are the only remedy available, it is claimed. I do not think this view is right.
I agree with learned Counsel to the appellant that the protection for minority shareholders provided under section 201 of the Companies Decree resulting in winding up the Company, though a remedy, is not the only remedy under the Companies Decree. Section 175(6), also enables a director wrongly removed under the Decree to claim and be awarded compensation or damages.
But the facts of the case before us are quite different. It is here clearly not a question of removal of the Director by the Board, under S.175 or resignation of the Director from Office. See Article 87(e). The plaintiff's claim is that he was and is still the Managing Director, director and shareholder of the 1st defendant Company. See claim 1(a). What is in issue is the validity of the appointment of the 2nd defendant and Chairman/Managing Director of the 1st defendant Company, See claim 1(b); See s.174(1). The validity of the resolution of the Board of Directors of 1st defendant Company accepting purported oral resignation of plaintiff as Managing Director/Director and shareholder of the 1st defendant Company, S. 175 and all the other claims are entirely based on the operation of provisions of the Companies Decree. It cannot therefore be disputed that each of these issues can only be decided by interpretation of the provisions of the Companies Act. It also cannot therefore be seriously suggested that the claims of the plaintiff are outside the provisions of the Companies Act, 1968, and therefore not within the jurisdiction of the Federal High Court. - See section 7(1 )(c)(i) Federal High Court Act 1973. In my opinion each of the claims of the plaintiff are matters within the provisions of the Companies Decree, 1968, and therefore within the jurisdiction of the trial court. The Court of Appeal was therefore In error when it held.
Whether the award was made to the respondent as a director, managing director or shareholder. it was completely incompetent as the matter was not properly before the Court in accordance with the companies Act as the remedies invited could not be properly dealt with by that court...
The trial court validly assumed jurisdiction. The Court of Appeal was wrong to strike out the action and set aside the judgment of the High Court on the ground of want of jurisdiction. ~he next issue concerns the purported removal of plaintiff as Managing Director, Director and Shareholder of the 1st D defendant Company. This is claim I. Plaintiff was in this seeking a declaration that he was still the Managing Director, director and shareholder of the Company, and that the purported appointment of the 2nd defendant 'is Chairman/Managing Director of the 1st defendant Company in his place was null and void. It is convenient to consider together claim 2 seeking to set aside the letter No.CMD/5/79 of 2lst August, 1979 written by the 2nd defendant informing plaintiff of the removal as Managing Director of the Company by virtue of a resolution of the 1st defendant Company.
The ground on which the lst-6th defendants purported to remove plaintiff was that plaintiff had resigned orally and that they had by their resolution of the 21st August, 1979 accepted the oral resignation. It is important to advert to the fact whether in fact there was oral resignation. which is a question F of fact. The trial Judge found as a fact that plaintiff did not give notice of intention of oral resignation, and did not relinquish his shares in the 1st defendant Company. The trial Judge also found that plaintiff (lid not resign. These findings have not been challenged on appeal and they stand uncontroverted. Hence the contention of counsel to the respondents that oral resignation may be accepted even where the enabling provision requires writing is not here applicable.
It seems to me therefore unarguable that since the resolution to remove the plaintiff was based on the erroneous supposition of an oral notice of resignation such resolution loses the only basis of its support with the finding that there was not such oral notice of resignation. Similarly devoid of any effect is the letter No.CMD/5/79 of 21st August, 1979 informing plaintiff of the purported resolution of the 1st defendant Company removing plaintiff office of Managing Director, Director and also taking over his shares in the 1st defendant Company. The letter No.CMD/5/79 of 21st August. 1979 is invalid and of no effect and is hereby set aside.
This leads me to the consideration of the validity of the appointment of the 2nd defendant as Chairman/Managing Director of the 1st defendant Company.
The appointment of Managing Directors is governed by Article 106 of Table A. A Managing Director ceases to be so if he ceases to be a Director. This is because he is a director who is appointed by the Directors, unless of course, he is appointed, as in the instant case, by the Articles of Association of the Company.
It is necessary to advert to the legal position that the power to appoint a director is exercised by directors by virtue of enabling provisions in the Articles of Association. The Articles of Association of the 1st defendant Company has omitted the provisions of articles 94 and 95 of Table A of the First Schedule thus depriving the Board of Directors of the power to appoint directors. Hence the appointment of 2nd defendant as a Managing Director is ultra vires the Board and therefore void.
The Court of Appeal took the view that plaintiff as Managing Director was an employee of the 1st defendant Company, and that there was a con-tract of service between him and the 1st defendant Company. The Court relied on the cases of Lee V. Lee's Air Farming Ltd. (1961) AC. 12. Lincoln Mill Australia Ltd. V. Gough (1964) V.R.193 were cited and relied upon. Learned Counsel to the respondents has supported this reasoning. Learned Counsel to the appellant had submitted correctly that issues were not joined on the question whether the relationship of master and servant existed between plaintiff and the 1st defendant Company.
The issue before the court was whether plaintiff resigned as Managing Director of the 1st defendant Company and whether the resolution of the Board of Directors of the 1st defendant Company accepting his oral resignation was valid . Learned Counsel to the appellant has rightly referred to the finding of the trial Judge that plaintiff did not give any oral notice to resign and therefore had not offered to resign his appointment as Managing Director, and that no issue was joined and no finding was made in respect of breach of con I act of service. There is no appeal against the findings.
There is no doubt that parties are bound by the issues raised in their pleadings. It is not subject-matter for argument that at the trial Court the issue was whether plaintiff was validly removed by the lst-6th defendants as "Managing Director of the 1st defendant Company. The claim was not for damages for wrongful dismissal, but a declaration that plaintiff was still the Managing Director of the 1st defendant Company. The claims for general damages was made in the alternative. The learned trial Judge having found that the resolution to accept the oral resignation of the plaintiff was invalid ought to have made the declaration asked for - See Shell B. P. Ltd. v. Pere Cole & Ors. (1978) 3 S.C. 183. I do not think and I know of no rule of law or practice which precludes a plaintiff from preferring any of the alternatives causes of action available to him as a remedy for injury done to him. Indeed plaintiff has brought this action and pleaded in the alternative. The trial Judge has awarded general damages in respect of the infringement of the legal right of the status of Managing Director.
Counsel to the appellant had conceded in his argument in the Court below that the issue related to the termination of appellant's contract of service, thereby giving rise to a Master and Servant relationship. Counsel now abandon the point in this Court and sought and was granted leave to argue the new point based on the infringement of the legal right of the status of the appellant. That is the issue joined between the parties. It is clear from the pleadings that no contract of service was pleaded, and no breach of same was alleged. It would be making a case for the parties to decide the claim on a matter in respect of which issue was not joined.
There is no doubt that the claim was based on the invalidity of the resolution by the 1st defendant Company to remove the appellant on a purported oral resignation of his office of Managing Director, Director and an express desire, orally to dispose of his shares in the 1st defendant Company. The letter No.CMD/5/79 dated 21/8/79 did not state that appellant’s appointment as Managing Director was being terminated. It stated that his resignation orally from the position of Managing Director, etc. was being accepted by the Company. This is not in my opinion an interference with the terms of an existing contract of service if any to constitute a breach of contract of service giving rise to an action for wrongful dismissal. It is merely an attempt to enforce what the defendants claimed was the wish of the plaintiff. The issue between the parties therefore does not involve the relationship of Master and p Servant. The Court below was wrong to so regard it.
The Court of Appeal stated the general rule and the usual position that there is generally the relationship of master and servant between the Managing director and his company. As an employee there is usually a contract of service between him and the Company. The Managing Director relies on his tenure on the articles of association of the Company and any other contract F of service supplemental thereto. Thus a valid determination of his contract of service will depend on the terms of such contract of service. No such contract of service was proved.
Learned Counsel to the appellant submitted that appellant has no contract of service outside the Articles of Association of the 1st respondent Company. It was submitted that appellant was named Managing Director by the Articles of Association of the 1st respondent Company, and by the non-adopt ion of articles 88-96 of Table A of the First Schedule to the Companies Decree 1968, the provisions of articles 94 and 95 enabling the exercise of the power to remove a Director under section 175 was not available to the 1st respondent Company.
I have already pointed out in this judgment, that the issue here is not one for the removal of the plaintiff by the 1st defendant, in which case the omission of articles 94 and 95 of Table A of the first Schedule would not have affected the power vested in the 1st defendant by Section 175 of the Companies Decree; which also prescribes the procedure for removing directors. The general power as provided in section 175(1) states as follows –
A Company may by ordinary resolution remove a director be-fore the expiration of his period of office, notwithstanding anything in its articles or in any agreement between it and him. Provided that this subsection shall not, in the case of a private Company authorise the removal of a director holding off

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