IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE
DATE: September 25, 2018 SUIT NO. NICN/LA/561/2012
BETWEEN
SCOTT T. MOREY – CLAIMANT
AND
CITYSCAPE INTERNATIONAL – DEFENDANT
DEVELOPMENT PLC
REPRESENTATION
Victor Gwam, with Oki Achika for claimant.
Linda Adeoti (Mrs) for defendant.
JUDGMENT
Introduction and claims
The claimant filed this complaint against the defendant on the 5th of November 2012. By an amended statement of facts filed on the 6th November 2015, the claimant claims the following:
The sum of $182,518.74 (One Hundred and Eighty Two Thousand, Five Hundred and Eighteen Dollars, Seventy Four Cents) or its equivalent in Naira with interest at the rate of 21% per annum from the 18th day of October 2011 until judgment is delivered in this matter and thereafter at the rate of 10% per annum from the defendant being unpaid wages, unpaid “true up” and unpaid reimbursable expenses outstanding and owed the claimant by the defendant.
Accompanying the amended statement of facts is the statement on oath of the claimant’s Attorney, and copies of documents to be relied upon. The defendant filed a further amended statement of defence and a counter claim, statement on oath and copies of documents on June 16, 2017. The defendant counter claimed as follows:
a. The sum of $560,000 from the date of abandonment of his duty post to the date in which the tenor employment was supposed to end i.e. the period of used contract of employment (August 2009 to July 2010).
b. The sum of NGN8,000,000.00 (Eight Million Naira only) being the values sum of the undisclosed rent/sublease of the apartment at 8/10, Onitana Road Ikoyi Lagos, being one year and three months for the unnecessary holding over.
c. The sum of NGN10,000,000.00 (Ten Million Naira only) being relief sought in Iwinosa v Cityscape Int’l Plc in suit LD/2236/2010.
d. The sum of NGN50,000,000.00 (Five Million Naira only) being relief sought in Victor C Gwan v Cityscape International Development Plc in suit No. (LD/838/2010).
e. The sum of NGN 10,600,000.00 (Ten Million, Six Hundred Thousand Naira only) being relief sought in Victor C Gwan v Cityscape International Development Plc in suit No. (LD/838/2010).
f. The sum of NGN2,600,000.00 (Two Million, Six Hundred Thousand Naira only) being relief sought in James Chijioke Ukachukwu v Cityscape International Ltd in suit No. (LD/2199/2010).
g. The sum of NGN43,296,767.00 (Forty Three Million, Two Hundred and Ninety Six Thousand, Seven Hundred and Six Seven Naira only) being relief sought in McGlobal Nig Limited v. Cityscape International Ltd in suit No (LD/2199/2010).
h. The sum of NGN500,000,000.00 (Five Hundred Million Naira) as general damages for the loss of clientele and loss of reputation caused by the claimant’s slack and unprofessional conducts.
i. Interest on the said sum at the rate of 20% until judgement is given and thereafter at the rate of 21% per annum until judgement debt is fully paid.
The claimant relied on its reply and defence to counter claim filed on the 29th March 2016. The defendant thereafter filed a Notice of Preliminary Objection dated 16th June 2014 challenging the jurisdiction of the court. In a considered ruling delivered on February 11, 2015 the Objection was dismissed and the matter set down for trial.
Case of the claimant
The claimant’s case is that he is an American citizen employed by the defendant as its Chief Operating Officer and presently does not reside in Nigeria. He has given a Power of Attorney to Victor Gwam Esq to give evidence on his behalf. The claimant averred that by a letter of employment dated the 10th of July 2008, the defendant employed him as its Chief Operating Officer; the defendant’s Managing Director or Chief Executive Officer, Mr. Akinwale Akinmusire signed his letter of employment. The claimant stated that he rendered meritorious services to the defendant but had to resign by a letter dated the 9th of February 2010, and he gave the defendant the mandatory 6 months’ notice of termination of his contract of employment as stipulated in his letter of employment. The claimant averred that at the time of his resignation and termination of his contract, the defendant owed him the following sums: unpaid wages for 5months – $92,500.00 (Ninety Two Thousand Five Hundred Dollars), unpaid true up from September 2008 to August 2009 – $73,694.74 (Seventy Three Thousand, Six Hundred and Ninety Four Dollars, Seventy Four Cents), unpaid true up from September 2009 to January 2010 – $30,000.00 (Thirty Thousand Dollars), unpaid reimbursable expenses – $12,990.66 (Twelve Thousand Nine Hundred and Ninety Dollars Sixty Six Cents) making a total of
$209,185.41 (Two Hundred and Nine Thousand, One Hundred and Eighty Five Dollars, Forty One Cents).
The claimant stated that he demanded the sums owed him from the defendant and he continued to work for the defendant until the 10th of April 2010, by which time the defendant had failed to pay him for 5 months and he was completely broke and had spent all his life savings on the defendant. The claimant stated that he informed the defendant of his intention to seek employment outside Nigeria and the defendant consented and entered an agreement dated the 10th of April 2010 admitting liability to pay the sum owed within a period of 18 months. That pursuant to clause 1 of the agreement, the claimant was to sell his official car, a Toyota Prado and sublet his official residence, a flat at 8/10 Onitana Road, Ikoyi, Lagos to recover some of the sums owed him by the defendant. The claimant stated that he sold the official car for N4,000,000.00 (Four Million Naira) (or $26,666.67 (Twenty Six Thousand, Six Hundred and Sixty Six Thousand Dollars, Sixty Seven Cents) at $1 to N150.00) but was unable to sublet the official residence. By a letter dated 18th of October 2011, he informed the defendant of the sale and demanded the balance of the sums owed him by the defendant; and by e-mail dated the 31st of October 2011 he also notified the Chief Executive Officer of the defendant of his demand letter dated the 18th of October 2011.
The claimant stated that neither the defendant nor Mr. Akinwale Akinmusire responded to his demands. The claimant stated that he was not aware of the practice of the defendant to use a subsidiary Company to sublet flats in repayment of terminal benefits or for any other purpose. The claimant stated that upon giving notice on the 9th of February 2010, he worked for the defendant for 2 months, thereafter he handed over to the defendant’s CEO on the 10th of April 2010 and he was never called to give account of any sums whatsoever. He stated that he did not abscond from his duties and that he got another job after he resigned from the defendant. The claimant averred that the defendant company was run aground by the reckless, spend thrift nature of the CEO Mr. Wale Akinmusire who was impervious to advice; that if the defendant’s fortunes nosedived it was caused solely by the CEO. He stated that he was not nonchalant and he had no distractions when he was in the defendant’s employment. The claimant stated that the defendant never queried his actions but rather commended the steps he took in the operations of the Company.
The claimant stated that at at all times the CEO Mr. Wale Akinmusire was the true representative of the defendant and that with the knowledge and consent of the defendant, he left Nigeria at the end of April 2010 to commence work in England on the 10th of May 2010, and never abandoned his duty post. The claimant averred that he was not made aware of any internal audit and that the defendant has no intention of paying him the sums owed to him. The claimant averred that the debts for which the defendant was sued arose before he was employed and when he became aware of the debts he advised that they were just debts that should be paid but the defendant refused to pay the debts owed. He stated that the defendant through its CEO Mr. Wale Akinmusire had a penchant for not paying debts owed; and only paid debts when its CEO was threatened with arrest or some other force. The claimant stated that the salaries of staff were cut to fund the CEO’s personal expenses.
The claimant’s attorney Victor Chukwemeka Gwam (CW) gave evidence on his behalf. He informed the court that the claimant gave him a Power of Attorney to testify on his behalf. He identified and adopted his statements on oath. They were in the exact terms of the pleadings and he relied on the claimant’s admitted documents. Under cross examination, CW informed the court that he was instructed by the claimant and that he is the claimant’s attorney. He told the court that the claimant gave him the facts of the case. CW informed the court that the claimant was employed in July 2008 by the defendant and that his letter of appointment is dated 10th July 2008; he said he did not know the claimant’s qualification. CW informed the court that he knows the claimant left Nigeria broke with 5 months salary owed to him. He said he did not know which other company the claimant worked for before he left Nigeria; he did know the projects executed while the claimant was in the defendant company neither did he know if the claimant conducted any due diligence in respect of the defendant before he joined. CW told the court that he did not know if the claimant was aware of his functions. He told the court that the parties contracted to pay $500,000.00 USD per annum to the claimant and that the claimant gave the defendant six months notice of his exit. CW said he believed the claimant left at the expiration of the six months notice but he could not give the exact time.
CW told the court that the claimant entered an agreement with the defendant exhibit C3 and there was a time frame for the defendant to pay his outstanding emoluments but he did not know where it was signed. CW said it was wrong to say the claimant left before the expiration of the six months notice period. He informed the court that Mr. Wale Akinmusire was the CEO of the defendant and he signed all letters relating to the defendant on his own. He said exhibit C3 did not have the company seal or logo and he did not know if there was a Board resolution regarding the contents. CW denied that exhibit C3 was fabricated by the claimant and stated that the claimant would never do that. He denied that there were court actions occasioned by the alleged abandonment by the claimant and he explained that the personal actions he filed against the defendant arose before the employment of the claimant. CW said neither he nor the claimant is aware the defendant has a leasing company or department; and that he is not aware of the claimant’s employment with Avares & Marshall as its Chief Operating Officer. The claimant’s case was then closed.
Case of the defendant
The case of the defendant is that it employed the claimant as its Chief Operating Officer and the claimant does not reside in Nigeria anymore. The defendant stated that the claimant’s services to the company was fell far below average and was a far cry from the claimant’s resume upon which it employed him as the claimant was grossly lacking in managerial and coordinating skills which were a requisite for the position of the Chief Operating Officer (COO). The defendant stated that the claimant did not resign from his position as stipulated in his letter of engagement but absconded from his duty post and took up appointment as Managing Director of Alvarez & Marshal, leading their European Real Estate Advisory Restructuring Practice in direct contrast to the provisions of his engagement. The defendant states further that the letter of engagement gave huge powers and latitude to the claimant to operate, coordinate, and manage the affairs of the company as he thinks fit in order to enable him work effectively and run the affairs of the company (including its finances) to ensure a complete repositioning of the company. The defendant stated that it was a thriving construction entity and a going concern prior to the claimant’s employment; and its financial buoyancy was its ability to pay the claimant US$500,000.00 (Five Hundred Thousand Dollars) per annum, a luxury service apartment, brand new Toyota Prado Jeep, and other mouth -watering benefits to enable the claimant concentrate and deliver excellently on his job.
The defendant stated that due to the claimant’s incessant travels, self-induced distractions and unprofessional conduct, its fortune nose-dived as projects that required personal attention, managerial and coordinating expertise of the claimant were left unattended and where delivered usually outside the time-frame to complete and deliver such projects leading to huge financial loss and numerous lawsuits against it. The defendant stated that the above actions were brought to the attention of the claimant on several occasions, but instead of heeding these warnings he accused members of his management team of sabotaging his effort and in one instance wrote a letter dated February 9th, 2010. That the defendant stated that sequel to this letter, the MD/CEO of the defendant company took practical steps to resolve the issues and reconcile the claimant with other members of the management team in a bid to enable the claimant deliver on the various jobs he was overseeing for the company and complete his terms of engagement.
The defendant averred that it does not owe the claimant the following sums: unpaid wages for 5 months in the sum of $92,500 (Ninety-Two Thousand, Five Hundred Dollars), unpaid true up from September, 2008 to August, 2009 in the sum of $73,694.74 (Seventy-Three Thousand, Six Hundred and Ninety Four Dollars, Seventy-Four Cents), unpaid true up from September, 2009 to January, 2009 in the sum of $30, 000 (Thirty Thousand Dollars), it does not owe the claimant the sum of $12,990.66 (Twelve Thousand, Nine Hundred and Ninety Dollars Forty-One Cents), or the sum of $209,185.41 (Two Hundred and Nine Thousand, One Hundred and Eighty Five Dollars Forty-One Cents) or any sum of money at all. The defendant stated that it did not admit to being liable to any sum of money or agree to make any payment whatsoever to the claimant. The defendant further averred that contrary to the assertions in the agreement dated 10th April, 2010, it did not sign the agreement as the CEO/MD did not have the authority of the Board of Directors to sign any agreement on its behalf and he does not have the powers to unilaterally bind the defendant company. The defendant stated that the claimant was fully aware that its CEO/MD lacked the powers to solely and unilaterally make binding decisions unless ratified by the Board but went ahead and sought the execution of the Agreement.
The defendant stated that the Board of Directors refused to ratify the CEO/MD’s unilateral agreement with the claimant having discovered that the claimant had breached the express terms of his engagement, absconded from his duty post and refused to properly handover the files and materials of the company in his possession, and that his answers to questions arising from the internal audit indicted him. The defendant stated that it did not commit to the claimant to sell the official Toyota Prado motor vehicle nor sublet his official residence, as its operations while the claimant was Chief Operating Officer was still undergoing internal audit. The defendant stated that the claimant knew that its CEO/MD did not have unilateral powers yet he proceeded to sell the vehicle and refused to transfer the official apartment even when informed to do so. The defendant stated that it is unaware of the sum of N4,000,000.00 (Four Million Naira only) or the sum of $26,666.67 (Twenty-Six Thousand, Six Hundred and Sixty-Six Dollars, Sixty-Seven Cents) being proceeds of sale of the official Toyota Prado motor vehicle by the claimant and did not instruct the defendant to sublet the official residence at No 8/10, Onitana Road, lkoyi, Lagos; neither it did receive any notification of the claimant’s inability to sub-let the house.
The defendant stated that the claimant only informed it well after a year of his absconding from duty of the sale of the vehicle, and his inability to lease the apartment which he did not transfer to its subsidiary company that handles issues of property sales, leases, and rentals though he was aware this was the usual practice of the defendant. The defendant stated that at no time did it refuse to pay the claimant any amount owed to him but at various times invited the claimant to render proper account of his tenure at the company, which he failed to do. The defendant stated that it is the claimant that is indeed liable to refund monies to it.
On the counter claim, the defendant stated that due to its decision to expand and reposition its business, it employed the claimant based on his impressive resume and erroneously believed that the claimant possessed the requisite skills that would move the company to the next level of significance. That claimant was engaged as the Chief Operating officer for a three year contract period and a gross income of $500,000.00, a luxury service apartment in Ikoyi, an official car and other benefits. The defendant stated that barely a year into the claimant’s employment, its financial and economic state began to deteriorate due to mismanagement, gross incompetence, mal-administration and incessant travels of the claimant and the nonchalant attitude of the claimant to the detriment of the defendant’s business particularly of activities within the reins of the claimant. The defendant stated that the claimant upon noticing the downward turn in its fortune, put in a letter of termination and abandoned his duty post despite entreaties from management staff including the CEO/MD that he work with the rest of the team to salvage the dwindling fortunes of the defendant within the tenor of his employment.
The defendant stated that immediately the claimant abandoned his duty post, an array of law suits arose against the defendant as several clients and contractors filed actions against it in court for non-performance and non-delivery of projects for which the claimant was supposed to provide oversight functions. That notable amongst these law suit are; Mr Iwinosa Edo-Osagie v Cityscappe International Ltd (LD/2236/2010), Victor C Gwam v Cityscape Development Plc (LD/837/2010), Victor C Gwan v Cityscape International Development Plc (LD/838/2010), James Chijioke Ukachukwu v Cityscape International Ltd (LD/1918/2010), McGlobal Nig Limited v Cityscape International Ltd (LD/2199/2010) all on-going at various Courts in Lagos with estimated reliefs of over NGN 215,000,000.00 (Two Hundred and Fifty Million Naira) being sought against the defendant, thus bringing the company image into disrepute and huge actual and potential financial losses. The defendant stated that the outstanding amounts unpaid were as a result of the economic state of the company directly arising from the claimant’s negligence in performing his official duties which led the defendant to cut the salaries of its staff in those trying periods.
The defendant averred that despite its many entreaties that included granting the claimant permission to sell off his official car and sublet his official residence to offset some of the money owed him while alternate arrangement was conceived for his resettlement in another suitable site of his choice, the claimant still absconded from the employment of the defendant. That contrary to and in breach of his letter of engagement the claimant did not exercise reasonable care and diligence to prevent any action which could result in a conflict of interest but was instead engaging in talks with another international company during the pendency of his contract with the defendant. That without an official letter of resignation as stated in the letter of employment, the claimant abandoned his duty post and not until over a year later was the defendant informed of the sales of the car and his inability to sublet the apartment through his letter of 18th of October 2011.
The defendant called one witness Ese Okobiah (DW) Chief Financial Officer. He adopted his statement on oath and relied on the admitted documents. Under cross examination, DW told the court that he did not have the queries the defendant issued the claimant. He said that there was no copy of any complaint by the defendant against the claimant, or any Board resolutions before the court. DW informed the court that he did not have a copy of the mail sent to the claimant by the Board of Directors neither did he have the details of the claims of M.C. Global. DW stated that all payments to the claimant were approved by him as Chief Operating Officer and were made by transfer to his accounts and by cheques but he had no evidence before the court. DW confirmed that the CEO/MD signed the claimant’s letter of appointment and he did not have the Board resolution ratifying the employment or the letter asking the claimant to render accounts. CW admitted that the defendant owed the claimant salaries and confirmed that the defendant received a letter dated 11th November 2011 but he did not see the defendant’s reply. The defendant then closed its case.
Final address
The defendant’s final address is dated 27th April 2018 and is filed the same day. The claimant’s final address is dated 28th May 2018 and is filed the same day. The defendant’s reply on point of law is dated 5th June 2018 and is filed the same day. Counsel adopted their respective final addresses.
Learned counsel to the defendant submitted the following issues for determination:
a. Whether this Honourable Court’s failure to admit in evidence the pleaded documents of the defendant’s Notice of preliminary objection dated the 16th of June 2014 and a further affidavit dated the 5th of November 2014 did not amount to breach of fair hearing leading to a gross miscarriage of justice on the defendant.
b. Whether the filing of this suit by Mr. Victor C. Gwam & Co. does not amount to an abuse of court process.
c. Whether the evidence given in this suit by Mr. Victor C. Gwam & Co. supposedly on behalf of Mr Scott Morrey does not amount to hearsay and ought to be dismissed by this Honourable Court.
d. Whether the claimant having breached terms of engagement dated 10th July 2008 is not liable to the defendant as per the counter claim.
She submitted that the failure of the court to admit the certified true copies of the defendant’s motion dated 16th June 2014 and the further affidavit sworn to on 5th November 2014 is a miscarriage of justice and a denial of fair hearing. She further submitted that there was a miscarriage of justice in the Ruling delivered by the Court on 11th February 2015 because the Court failed to consider the legal issues raised on the merit. Learned counsel submitted that this complaint is filed by Mr Gwam and is an abuse of the process of court. She argued that it is only the claimant that can file a complaint against the defendant and that the evidence of the claimant’s attorney is hearsay and is inadmissible. Counsel submitted that the Power of Attorney is forged and that “it is immaterial that the said Power of Attorney was not contradicted by the defendant’s counsel”. It was counsel’s submission that on the evidence adduced, the claimant breached the contract of employment that was for a three year term by abandoning his job before its expiration. He urged the court to dismiss the claimant’s case and enter judgement for the defendant on its counter claim.
Learned counsel to the claimant submitted the following issue for determination:
Whether the claimant has proved his claim against the defendant and the claim should be upheld and whether the counter-claim should be upheld or dismissed.
He submitted that both parties are bound by the terms of the contract they have freely executed and that from the documentary evidence, the defendant is indebted to the claimant and has acknowledged same. He further submitted that a written contract cannot be altered or varied by oral evidence relying on Section 128(1) of the Evidence Act 2011 and that the claimant has proved his claims. Learned counsel stated that the evidence of the claimant was given pursuant to the Power of Attorney and the evidence relied on was documentary not statements, and therefore it is not hearsay. He submitted that exhibit D4 are the processes filed at the Lagos State High Court and they are public documents of which only the originals or certified true copies are admissible in court. He urged the court to discountenance them as they are inadmissible. Learned counsel submitted that the Ruling dismissing the defendant’s Preliminary Objection is a final order until set aside by the Appellate Court. It was his contention that the defendant has not proved the counter claim and it should be dismissed.
Replying on point of law, learned counsel to the defendant submitted that admitted facts require no proof and that it is not every pleaded fact that a party must lead evidence on. That the most important requirement is for a party to adduce evidence in support of the central issues and issues joined citing Awoyoola v Aro [2006] 4 NWLR PT. 971 481 at 496 Para F.
Decision
I have carefully considered all the processes filed, the evidence led, the written submissions, arguments and authorities canvassed by counsel in the final addresses in this matter. The issues for determination in this judgement are: (i) whether on the pleadings and evidence the claimant is entitled to the sums of money he is claiming; (ii) whether the defendant has proved the counterclaim. The claimant as required has put in evidence his employment contract (exhibit C1), notice of disengagement (exhibits C2), 10th April Agreement (exhibit C3), letters of demand (exhibit C4 & C5), Power of Attorney (exhibit C6).
I will begin with the preliminary issues raised by defence counsel in the final address. She has submitted that the decision of the court not to admit the certified true copies of the defendant’s Notice of Preliminary Objection dated 16th June 2014 and further affidavit during the trial; and the Ruling dismissing the objection both occasioned a denial of fair hearing and a miscarriage of justice because the court failed to consider the legal issues. It appears to me from the submissions of counsel that the court is being invited to review or sit on appeal over the Ruling in this judgement. As already stated in the introduction, the defendant filed a Notice of Preliminary Objection dated 16th June 2014 challenging the jurisdiction of the Court and this was opposed by the claimant’s counsel. In a considered ruling delivered on February 11, 2015 the Objection was dismissed and the matter set down for trial. At this juncture, it is necessary to reproduce the relevant portion of the Ruling as it has a bearing on the conduct of the defence and the submissions in the defendant’s final address by Obele Akinniranye (Mrs) which this judgement will address. It is reproduced as follows:
Having considered the processes filed in this suit, the arguments of counsel and the authorities relied upon, the question is whether the issues of the identity of the claimant, the authenticity of the signature on the statement on oath and the Power of Attorney are preliminary issues to be determined at this stage of the proceedings. It is pertinent to restate the fact that the parties have completed pleadings and joined issues before this objection was filed. The issues raised are not preliminary issues to be resolved at this stage of the proceedings. They are issues which can only be properly determined after the matter has gone to trial and evidence adduced by the parties. Pleadings having been completed, the matter is ready for trial. I therefore find this objection to be a time wasting exercise. It is hereby dismissed. The matter is to proceed to trial. Costs of N5,000 awarded in favour of the claimant.
There is no appeal by the defendant against this Ruling and the matter proceeded to trial on the merits. Having dismissed the objection, this court cannot sit on appeal over its Ruling. See Chief Kalu Igwe & Ors V Chief OKuwa Kalu & Ors [2002] FWLR (Pt 122) 1, Ogunsola V Usman [2002] 14 NWLR (Pt 788) 636. Again, defence counsel expects the court to revisit its decision to reject admitting the Notice of Preliminary Objection and further affidavit as exhibits on the grounds that they already form part of the records of the court in this suit. These decisions by the court are not a denial of the defendant’s right to a fair hearing; and I so hold.
Counsel also submitted that the defendant was over reached when the court granted the claimant’s prayers to amend its statement of facts. The records of the court show that leave was granted the claimant to amend his statement of facts on the 5th November 2015 before trial commenced; and a further order was made granting leave to the defendant to file consequential amendments within 14 days. The defendant filed its amended statement of defence on 22nd March 2016 after being granted an extension of time. After the claimant had closed his case, the defendant filed a motion for leave to further amend its amended statement of defence on 12th May 2017. The defendant was granted leave to further amend its statement of defence on the 9th of June 2017 with no costs awarded against it. The further amended statement of defence was filed on 16th June 2017. With all of these facts, the submission of defence counsel Obele Akinniranye (Mrs) at paragraph 48 of defendant’s final address that “this Honourable Court should not shut its eyes to the overwhelming fact that the claimant in amending its processes over reached the defendant” is clearly misconceived. An order of amendment takes effect from the date of commencement of the action. In other words, what stood before the amendment is no longer material before the court and no longer defines the issues to be tried. See Vulcan V Gesellshaft [2001] 4 MJSC 158. The defendant was not in any doubt as to the claimant’s case and consequently amended its defence twice as seen from the records.
Learned counsel to the defendant has contended that this suit is an abuse of the process of court and that the entire evidence by the claimant’s Attorney Mr Victor C. Gwam is inadmissible on the grounds that it is hearsay evidence. There is no evidence before me of the improper use of the judicial process by the claimant or his attorney to interfere with the due administration of justice. See R-Benkay Nigeria Limited V Cadbury Nigeria PLc [2012] 2NWLR (Pt 1306) 596, Saraki V Kotoye [1992] 9 NWLR (Pt 264) 156. This suit is not an abuse of the judicial process. The claimant’s Power of Attorney appointing Mr Victor Gwam to represent him, act on his behalf, appear and give evidence in this suit because he presently resides in the USA is exhibit C6. The claimant’s attorney (CW) was not cross-examined on the authenticity of the Power of Attorney, or on the identity of the claimant during the trial; yet defence counsel at paragraph 69 of the final address stated that: “the purported Power of Attorney admitted in evidence in this suit is nothing but a cham (sic). It was doctored by Mr Victor C. Gwam of Victor C. Gwam & Co to perfect his plans of gold digging and to mislead this Honourable Court”. I will deal with this issue later in the judgement.
It is trite law that evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay as there are exceptions to the general rule in Section 91 of the Evidence Act. See Section 91(2) of the Evdence Act and the case of Chief Igunbor & Ors V Chief Ugbede Obianke &ors [1976] 9 & 10 SC 179. The evidence given by CW in proof of the claimant’s case is documentary. It consists in the main of documents executed between the parties during the employment relationship. CW tendered the claimant’s employment contract (exhibit C1), the claimant’s notice of disengagement (exhibits C2), the 10th April Agreement between the claimant and the defendant (exhibit C3), the claimant’s letters of demand (exhibit C4 & C5), and the Power of Attorney (exhibit C6). He relied on these documents to establish the claimant’s claims. The evidence of CW is documentary and it is admissible. It is not hearsay evidence. Exhibit D4 are photocopies of processes filed in the High Court of Lagos State tendered by the defendant in proof of its counter claim. They are public documents. The only type of secondary evidence of a public document permissible is a certified true copy. These documents were not certified and are therefore inadmissible. They were wrongly admitted and are hereby rejected. See Senator Nwaogu V Hon Emeka Atuma & Ors [2013] 11 NWLR (Pt 1364) 117. I will now go on to the substantive issues.
The defendant’s letter (exhibit C1) appointing the claimant as its Chief Operating Officer was signed by the Managing Director Akinwale Akinmusire. It is for a period of three years commencing from September 1, 2008 and either party is at liberty to terminate the contract by six months notice in writing. The claimant’s annual gross compensation is $500,000.00. The claimant has made a claim for the sum of $182,518.74 being unpaid emoluments and has placed in evidence an agreement made between him and the defendant on the 10th April 2010 (exhibit C3). The agreement was executed by the defendant’s Managing Director Akinwale Akinmusire and the claimant. I will reproduce some relevant clauses of the agreement for purposes of this judgement:
(ii) The Company owes the Employee salaries, back pay, bonuses, entitlements and other emoluments (“the wages”) ————;
The total amount owed to the Employee is $209,185.41 (two hundred nine thousand, one hundred eight five United States dollars and forty one cents) less any personal IOU’s owed to the company which should not exceed $6000 (six thousand United States dollars).
(vi)The Employee has now resigned his appointment with the Company and intends to seek other employment outside Nigeria and the Company and the Employee have agreed that the Employee shall be entitled to recover part of his wages by the sale of his official car and the sublet of his official residence.
4. The Company undertakes to use every endeavor to ensure that the balance of the Employees wages is paid to the Employees Agent for and on behalf of the Employee within Eighteen (18) months of the date of execution of this agreement.
The evidence of DW is that the company did not sign the agreement and the CEO/MD Akinwale Akinmusire did not have the authority of the Board of Directors to sign the agreement and has no powers to unilaterally bind the defendant company. The law is that he who asserts must prove. See Sections 131 (1) & (2) and 132 of the Evidence Act 2011, Calabar Co-operative Ltd VEkpo [2008] 1-2 SC 229 at 255, Elegushi v Oseni [2005] 14 NWLR (Pt 945) 348. The defendant has not placed before the court its Memorandum and Articles of Association in proof of this assertion. The claimant’s letter of engagement (exhibit C1) was signed by the CEO/MD. It did not state that the CEO/MD wrote the letter on the directives, instructions, or on behalf of the Board of Directors. DW did not produce a Board resolution authorizing the CEO/MD to sign the claimant’s letter of employment which is not in dispute. It is common knowledge that a Managing Director of a Company is a member of the Board of Directors and is present at Board meetings. I therefore do not believe DW’s evidence that the CEO/MD did not have the authority of the Board of Directors to enter into the agreement and execute same on behalf of the defendant company. I hold that the CEO/MD Akinwale Akinmusire of the defendant company entered into this agreement on behalf of the defendant and executed it with the knowledge and on the authority of the Board of Directors. The defendant company is bound by the agreement it freely entered into and cannot resile from it. See Isheno V Julius Berger Nig Plc [2008] 6 NWLR (Pt 1084) 582 at 609, Afro Tech Services Ltd V Mia & Sons Ltd [2001] FWLR (Pt 35) 643 at 695.
Furthermore, the defendant at paragraph 44 of its pleadings; and in the deposition of DW at paragraph 45 which is an exact replica of the pleadings, he states as follows:
45. That despite its many entreaties which included granting the claimant permission to sell off his official car and sublet his official residence to offset some of the money owed him while alternate arrangement was conceived for his resettlement in another suitable site of his choice, the claimant still absconded from the employment of the defendant.
This is a corroboration of the claimant’s evidence that the defendant is indebted to him in the sum of $209,185.41 (two hundred nine thousand, one hundred eight five United States dollars and forty one cents) and entered into an agreement with him to sell his official car and sublet his official residence towards offsetting part of the defendant’s indebtedness to him.
DW under cross-examination admitted that salaries were owed the claimant. The claimant has put in evidence his letter of demand (exhibit C4) for the sum of $182,518.74 (One Hundred and Eighty Two Thousand, Five Hundred and Eighteen Dollars, Seventy Four Cents) having disposed of his official vehicle for the sum of $26,666.67 USD. The defendant by denying knowledge of this sum realized from the sale of the vehicle appears to be shooting itself in the foot by denying a reduction in its indebtedness and in effect confirming that the sum owed still stands at $209,185.41 (two hundred nine thousand, one hundred eight five United States dollars and forty one cents). The demand letter for the said sum was received by the defendant on 26th October 2011. There was no response or refutation from the defendant. The defendant is therefore deemed to have admitted the sum. See Nagebu Company Ltd V Unity Bank Plc [2013] All FWLR (Pt 698) 871 at 904, Trade Bank V Cham [2003] 13 NWLR (Pt 836) 158. The claimant is entitled to the sum of $182,518.74 (One Hundred and Eighty Two Thousand, Five Hundred and Eighteen Dollars, Seventy Four Cents) being unpaid wages, unpaid true up, and unpaid reimbursable expenses outstanding and owed the claimant by the defendant. There are no pleadings in respect of pre-judgement interest that the claimant has made a claim for. It is hereby refused.
On the counter claim, there is no evidence that the defendant was “a thriving construction entity and a going concern prior to the claimant’s arrival”. The defendant/counter claimant failed to place before the court its Audited Financial Statements before it engaged the claimant in proof of this. There is also no evidence that the claimant was not qualified for the position he was engaged to perform, or that he was incompetent and non challant to his duties. Under cross examination, DW told the court that he did not have any queries the defendant issued the claimant regarding his performance. The defendant/counter claimant has alleged that the claimant breached his employment contract by engaging in talks with another company and then abandoned his duty post without an official letter of resignation. The evidence before the court is that the defendant failed to pay the claimant/defendant to counter claim his salaries and he continued to work for the defendant/counter claimant till 10th April 2010, by which time the defendant/counter claimant had failed to pay the claimant/defendant to counter claim for five (5) months. The failure of an employer to pay its employee for work and services rendered is a breach of the employment contract. It results in extreme hardship for the employee especially one who is a foreigner. I find that the failure of the defendant/counter claimant to pay the claimant his salaries for five months was a breach of the employment contract by the defendant/counter claimant; and I so hold.
The claimant’s letter of engagement has made provision for an early termination date before the expiration of the three years by either party upon giving six months notice. The claimant’s six months notice of disengagement (exhibit C2) is dated February 9, 2010 and was to terminate on August 9, 2010. At the time the notice was given, the defendant/counter claimant was already in breach of the employment contract. The position of the law is that a notice of resignation takes effect not from the date of the letter or its acceptance but from the date on which the letter was received by the employer; see WAEC V Oshinebo [2006] 12 NWLR (Pt 994) 258, Benson V Onitiri [1960] NSCC 52 at 62. I find that on the 10th April 2010, when the parties agreed to the terms in exhibit C3 and executed same, the defendant/counter claimant was aware that the claimant had resigned his appointment, was seeking employment outside Nigeria and had consented to it as clearly shown in clause (vi) because the defendant could not pay the claimant’s salaries and was indebted to him. There is no proof of a conflict of interest by the claimant/defendant to counter claim. I hold that the claimant did not abandon or abscond from his duties. The defendant is not entitled to the sum of $560,000.00 it is claiming for abandonment.
There is no evidence that the claimant held over his official residence. The evidence adduced is that he was unable to sublet it and recover part of the monies the defendant owed him. The claimant is a foreigner and he left the country with the knowledge and consent of the defendant/counter claimant as seen in exhibit C3. How then could he have been holding over after his departure? There is also no evidence of the rent for the claimant’s official residence, and the remainder of the term. The counter claim for the sum of NGN8,000,000.00 (Eight Million Naira only) for holding over fails. There is no evidence placed before the court of any lawsuit initiated against the defendant/counter claimant by its clients as a result of non performance and non delivery of projects the claimant was to provide over sight functions for. I hold that the counter claim has not been proved and hereby fails in its entirety.
I cannot conclude this judgement without commenting on the scathing attack by defendant’s counsel Obele Akinniranye (Mrs) in the entirety of her final address on the Court and the claimant’s attorney Mr Victor C. Gwam. I will reproduce just two paragraphs from her final address that sums up her attack on the Court and the claimant’s attorney.
58. We submit that the fact that the action of this Honourable Court in failing to thoroughly consider the defendant’s said preliminary objection and further affidavit and supporting same with the relevant judicial authorities in its Ruling dated the 11th of February 2015 thus occasioning a miscarriage of justice on the defendant can never be over emphasized. We humbly submit the Honourable Court failed to cite a single authority to back up its Ruling dated the 11th of February 2015. (Highlighting is by defence counsel Obele Akinniranye Mrs).
68. My Lord, we submit that the filing of this suit by Mr Victor C. Gwam of Victor C. Gwam & Co is an abuse of court process. The said process was filed with the aim of gold digging and the intimidation and harassing of the defendant. Mr Victor C. Gwam is different from Mr Scott Morrey who is on the face of the processes before this Honourable Court. We further submit that Mr Victor C. Gwam in filing this suit is misleading this Honourable Court, when it forged the signature of Mr Scot Morrey the Claimant in this suit. The said Mr Victor C. Gwam also doctored the power of Attorney already admitted in evidence in this suit all in a bid to irritate and annoy the defendant and to reap where it did not sow.
It is quite clear from paragraph 58 and other paragraphs that the defendant’s counsel Obele Akinniranye (Mrs) has no respect for Judicial Authority. She certainly has a poor understanding of the law, procedure and evidence. For this reason, she was unable to comprehend the purport and the reasoning in the Ruling that the matter proceed to trial on the merits. Consequently, she equated an order for a trial on the merits to be a ‘miscarriage of justice and a denial of fair hearing’. As was revealed during the trial, the defendant failed to adduce evidence in its defence, and in support of its counter claim. Paragraph 68 is the summary of the aspersions cast on the claimant’s attorney Mr Victor C. Gwam by defendant’s counsel Obele Akinniranye (Mrs) in the final address. I must state that the accusations of ‘forgery, doctoring, intimidation’ were never pleaded by the defendant and so issues were not joined. It is the law that parties are bound by their pleadings and facts not pleaded go to no issue. See Woluchem V Gudi [1981] 5 SC 291 at 320. To make such accusations against a colleague at final address stage is an indication that defendant’s counsel did not give any thought as to the likely consequences of her ill chosen words, or simply did not care. Rather than present a summation of the relevant facts, analysis of the evidence adduced and the law, the entire final address is directed at reviewing the Ruling of the court which she did not appeal against, and accusing the claimant’s counsel. I shudder to think of the tutelage new wigs receive from her!
The records of the court show that Obele Akinniranye (Mrs) was never present in court at any of the court proceedings even though she signed the amended statement of defence, notice of preliminary objection and the final address as “defendant’s/counter claimant’s Solicitor”. The law is settled that no matter how brilliant the address of counsel, it cannot take the place of evidence. See Ayanwale V Odusami [2011] 12 MJSC (Pt 111) 1 at 9. Cases are won on the basis of the admissible credible evidence worthy of belief placed before the court by the parties, and not on insults hurled at opposing counsel.
For all the reasons given above, the claimant’s case succeeds. The defendant is hereby ordered to pay the claimant the sum of $182,518.74 (One Hundred and Eighty Two Thousand, Five Hundred and Eighteen Dollars, Seventy Four Cents) within 30 days from the date of this judgement. Thereafter, the judgement debt shall attract interest at the rate of 10% per annum until it is liquidated. Costs of N150,000.00 awarded the claimant. The defendant’s counter claim is dismissed with costs of N150,000.00 also awarded the claimant.
Judgement is entered accordingly.
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Hon Justice O.A. Obaseki-Osaghae
