Unilever's Double Jeopardy

A multi-national company, Unilever Nigeria Plc is enmeshed in high voltage legal tango resulting from its alleged breach of contract agreements

By Chidiebere Onyemaizu

Though a multi-national company and a manufacturer of many household items, Unilever Nigeria Plc has over the years, using its most popular brand, Close-up toothpaste, etched its corporate identity on the psyche of many Nigerian consumers, so much so that several of them are not aware that apart from Nigeria, the company also has a foothold in other ports of the world; and that apart from Close-up toothpaste, the company also has in its range other products.

In the same measure, though the company, few years back changed its age-long corporate identity, “Lever Brothers” to "Unilever”, its former name “Lever Brothers” has somewhat remained entrenched in the minds of many who still refer to it as “Lever Brothers”.

What, however, is not probably entrenched in the minds of many Nigerians, especially consumers of Unilever's products, is that the multi-national company is currently entangled in a high voltage legal tango, arising from its (Unilever's) alleged breach of contractual agreements it had with individuals who had provided services to it.

The episode began with one Henry Opara, a model and an undergraduate of Imo State University who is praying a Lagos High Court to compel Unilever to pay him fees arising from the company's continued use of his pictures in the advertisement of Close-up toothpaste in billboards, handbills, vans et cetera, against the backdrop of the fact that the original contractual agreement to that effect has elapsed. Also joined in Opara's suit against Unilever as a co-defendant is LTC Advertising Nigeria Limited, the firm that is carrying out the Close-up advert campaign with Opara's pictures.

Besides Opara's legal tussle with the company, seven other aggrieved transporters, namely Edmond Anaegbo, Havillah Land Venture, Victor Nweke, Anene Dennis, Mike Akabogu, Godwin Daniel and James Ogbo are also at a Lagos High Court, praying it to compel Unilever and GGL Oil and Gas Nigeria Limited to pay them the sum of N50million jointly and severally, for an alleged breach of contract and unwarranted detention of their trailers for eight days at Unilever's Agbara, Ogun State, factory site.

In a Writ of Summons contained in suit number LD/788/06 of Lagos High Court dated May 15, 2006 and instituted on behalf of the seven transporters by their lawyer, C.O.N. Akabogu, against the two companies, the transporters also alleged wilful and malicious refusal of the defendants to pay – till date – the agreed amount for the charter for the seven trailers which had conveyed containers from Kirikiri Phase II, Lagos to Unilever's factory at Agbara.

Opara's legal tussle with Unilever and LTC has its roots in the contract which he had with the two companies in September 2003 when they invited him for casting, preparatory to the shooting of Close-up toothpaste advertisements.

In Opara's statement of claim in suit number LD/1302/05 against Unilever and LTC and which was deposed on his behalf by his lawyer, Akabogu, the undergraduate averred that formal contract for the said advertising job was eventually executed on January 4, 2004 with an initial sign-on fee of N300,000. Notedly, the tenets of the contract stipulated that the adverts adorning Opara's pictures were going to be used for billboards only and that they would be restricted to Nigeria.

Apparently having satisfied himself that he was dealing with responsible corporate citizens, firms, Opara had no reason to entertain any form of misgiving as to the likelihood of Unilever and LTC negating the tenets of the agreement. It was, therefore, a highly elated and fulfilled Opara who departed to Owerri, Imo State to continue with his academic pursuit.

But unknown to Opara, while he was poring over his books in school, Unilever and LTC were busy acting outside the letters of the contractual agreement they had with him. As contained in his Statement of Claim, Opara was rather horrified when he started receiving information that his advertisement were no longer exclusively for billboards but had generously been used at kiosks, supermarkets, moving vehicles and press releases. According to Opara, Unilever and LTC went the extra mile in negating the terms of the agreement by expanding the territorial scope of the aggressive advert campaign of Close-up toothpaste which adorn his picture to include other West African countries. Opara specifically cited Close-up adverts along Osu Road, opposite Woodin, Ghana, which bears his picture as an example of how Unilever and LTC had allegedly taken the adverts beyond the shores of Nigeria – much to the negation of the original agreement.

The undue publicity which the continued use of Opara's picture in the adverts – long after the contractual time frame for its usage had elapsed – soon started taking its toll on him. As a model, Opara who sponsors himself in school with earnings from adverts and other modelling jobs, was no longer able to secure another advertising job as his prospective brokers/employers soon began to dubbed him “ Close-up boy” and therefore were no longer willing to sign him on.

Piqued by the turn of events, Opara confronted Unilever and LTC and demanded that further adverts be discontinued, since the original contract expired on December 31, 2004. But perhaps enamoured by Opara's handsome face on the adverts, LTC, through its marketing executives, the duo of Mich and Mrs. Bisi Afolabi reportedly pleaded that they still needed to use the pictures up and until January 2005, after which the billboards, posters, calendars, press, van and every other apparatus bearing Opara's pictures advertising Close-up toothpaste would be dismantled. Other series of meetings and negotiations between Opara and LTC later culminated in the signing of a fresh contract for just six months after which all the adverts were to be finally dismantled.

Opara was, however, later to discover to his chagrin and utter disappointment that rather than Unilever and LTC sticking to the new agreement, by dismantling the billboards, they had instead even gone ahead to unilaterally configure new advert copies, using five different pictures of his, with him as the only male model.

Dismayed and pained by this latest show of bad faith, Opara confronted Unilever and LTC with details of, in his words, “their criminal and unethical behaviour” and made them understand that they had swindled him. This time around, both firms profusely apologised but went ahead to beg continued usage of his pictures in the adverts until December 2005. Opara, however, refused on the grounds that he had been cheated, abused, over-used and dumped by both firms contrary to all known advertising ethics.

In apparent attempt to avert a riotous situation, Unilever summoned a meeting of all stakeholders including Opara and LTC where once again the idea of signing a fresh contract was mooted. With his past experience in the hands of both firms apparently still fresh in his mind, Opara refused the proposal. Unilever and LTC, however piled pressure on the student-cum-model and in response, Opara agreed to a fresh contract of N1.3 million on the ground that his works had gone international. The other parties, LTC and Unilever were however not forthcoming on this demand and consequently, a stalemate developed.

The ding-dong between Opara and LTC and Unilever continued unabated as several meetings and promises failed to resolve the knotty issue.

Apparently realising that his salvation lies with the law courts, Opara, later in August 2005 took his case to the chambers of C.O.N. Akabogu for legal redress. This legal move culminated in the suing of LTC and Unilever by Opara.

Among the things Opara prayed the court to grant via his lawyer, Akabogu were:

*That LTC/Unilever pay him N5million being general and special damages for breach of contract.

*Declaration that the advertisement contract having expired, LTC/Unilever cannot continue to use the same without paying him his just entitlements.

*An injuction restraining LTC/Unilever from further usage of the said close-up adverts.

*A court order directing the Inspector-General of Police, court bailiffs, deputy Sheriffs and relevant officers to dismantle the said Close-up adverts and bring same to court and generally arrest and detain vans, buses and moving vehicles still parading the said Close-up advert.

The legal fireworks dragged on till December 12, 2005 when the court entered what it described as “consent judgement” on the issue, wherein terms of amicable settlement were spelt out by the court. The terms were outlined as follows:

*The claimant (i.e Opara) shall be paid the sum of N2 million in full and final settlement of the claim in this suit.

*The claimant shall allow the defendants (i.e Unilever and LTC) to continue usage of the advertising campaign of the Close-up toothpaste and toothbrushes for the period commencing July 7, 2005 till December 31, 2005.

*The claimant shall allow the defendants to continue usage of the advertising materials on all press, billboard, point of sales and all printable materials used in the marketing of Close-up and close-up toothbrush.

*The claimant shall not engage himself in any advertisement of any product that is a competitive brand of Close-up during the period commencing July 31, 2005 till December 31, 2005.

*Commencing from January 1, 2006, the claimant shall allow the defendants a period of six weeks within which the defendants shall remove all advertising materials containing the features of the Claimant on all press, billboards, points of sales and such other non-permanent medium.

If Opara and his legal team thought that the December 12, 2005 court- inspired settlement of the matter via the “consent judgement” had thawed their woes, they were dead wrong for according to Akabuogu, “inspite of the court judgement entered by mutual consent (and) dated December 12, 2005, the defendants, in utter contempt of the judgement are still using the Claimant's Close-up adverts on billboards and other media”.

Akabogu went further to allege that LTC and Unilever have also refused to pay for what he called “illegal extended usage” of Opara's pictures in the adverts adding, “the defendants did all these without the knowledge and consent of the Claimant, or of even the honourable court."

Thus, in a determined bid to ensure that what is rightly due to his client is paid to him by LTC/Unilever, Akabogu and his client, Opara have returned to legal trenches. They are seeking from the court among other things:

*An order of court committing the Managing Director of Unilever Nigeria Plc and the Managing Director of LTC Advertising to three months imprisonment for contempt of court – for undermining the integrity of the court.

*An order of court setting aside the consent judgement on the grounds of misrepresentation of facts, cheating, deceit and fraud.

*An order of the court compelling the defendants to pay the royalty, interest and damages for the unauthorised and illegal usage of the Claimant's Close-up adverts in contravention of paragraph (f) of court order dated 12th day of December, 2005.

Like Opara, the seven transporters are also in court to battle Unilever and C.C.L Oil and Gas Limited, over an alleged breach of contract. In the transporters' statement of claim deposed at the Lagos High Court on their behalf by their legal representative, Akabogu, they bemoan alleged indignities they are suffering in the hands of the two firms as a result of an agreement not kept. The seven transporters contend that between December 2 and 3, 2005, they were contracted at the cost of N60,000 per trailer to convey containers loaded with goods to Unilever's factory at Agbara.

They also allege there was a further understanding between them and the two companies that any extra day the vehicles stayed in the factory would attract N60,000 demurrage per vehicle. However, the agreement took a disturbing shape when upon arrival at the factory, Unilever officials rather than immediately off-load the goods so as to enable the transporters return to base immediately, reportedly delayed them for eight days on the pretex that they were going to do stock-taking of the goods inside the factory before a fresh consignment could be off-loaded.

Consequently, the vehicles, according to the transporters, suffered demurrage at the factory site for eight days. In keeping with the understanding reached, both Unilever and CGC Oil and Gas, according to the transporters, allegedly agreed to pay the demurrage. However, as days rolled by, it became clear to the transporters that their clients, Unilever and CGL Oil and Gas were not prepared to part with a dime as an extra bill to their (the transporters') services.

Instructively, this became evident when despite repeated assurances, the two firms allegedly failed to come forward to retrieve container cards, way-bills and other documents relevant to the delivery at Agbara. The import of this is that the retrieval of these vital documents is predicated upon the settlement of the demurrage and other outstanding bills the two firms are owing the transporters.

The transporters, therefore, argue that the refusal of the two firms to come forward to retrieve the document was a ploy to evade paying the demurrage, hence they (the aggrieved transporters) resorted to the courts through Akabogu. Notably, the transporters are asking the court to order Unilever and CGL Oil and Gas to pay them a total of N50 million for the alleged breach of contract.