IN THE NATIONAL INDUSTRIAL COURT
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA
DATE: 5th February, 2020 SUIT NO: NICN/OW/64/2014
BETWEEN:
MR EMENIKE SYLVESTER IBE ��������������. CLAIMANT
AND
INTERNATIONAL CORROSION CONTROL LTD������.. DEFENDANT
REPRESENTATION:
Chidi B. Nworka Esq with K. J. Uchendu , L..I Nze Esq for the Claimant
Patrick O.Ekeanyawu Esq with him C. I. Obimba Esq, for the Defendant
JUDGMENT:
In this action, this Claimant sued the Defendant company for purported breach of the terms of his contract of employment/service with effect from 17/8/2008. Accordingly, the Defendant refused and or neglected to pay him certain outstanding salaries as a contract staff upon effluxion of his 5 year contract with the Defendant as Managing Director/CEO of the Company in 2013 amounting to over N83M.
This suit was initially commenced by complaint filed on 18/8/2014. However, by an amended writ of Complaint and statement of facts filed on 16/6/2016, the Claimant sued this Defendant for the following reliefs:
- The sum of
N26,421,000.00 being the balance of the Claimant�s outstanding basic salaries due and unpaid in respect of his employment with the Defendant from the 1st day of January, 2009 to the 31st day of May, 2013. - The sum of
N57,515,000.00 being the total amount of the unpaid emoluments/benefits accruing to the Claimant from the Defendant on account of his employment as Managing Director of the Defendant from the 1st day January, 2009 to the 31st day of May, 2013, which said sum is comprised as particularised in paragraphs 4 (ii) � (ix). - Post judgment interest of 10% (Ten Percent) per annum from the delivery of judgment to the liquidation of the judgment sum.
The Defendant consequently amended its statement of defence and Counter-Claim (dated 26/07/2016) as well as witness deposition dated 28/07/2016 which were all filed on 28/07/2016. The Claimant filed an amended reply and Defence to the Statement of defence on 16/6/2016.
However, the Defendant�s Counsel moved to withdraw its Counter Claim on the 17/01/2018 and same was struck out accordingly leaving the Claimant�s statement of facts and his reply to the statement of defence. With pleadings now properly joined, hearing commenced on 17/01/2018.
CLAIMANT�S CASE:
The Claimant himself testified as CW1. He adopted his deposition and further deposition on oath, all dated the 16th day of June 2016. By his testimony, the following documents were tendered and admitted in evidence as follows:
- CW1 � letter of confirmation of appointment dated 24/3/1007
- CW2 � Re – Revised Terms and Conditions of Service date 19/12/2008
- CW3 � Re-Demand for the repayment of N18,590,273:24 Facility from International Corrosion Control Limited by First Bank of Nigeria Limited � dated 29/11/2013.
- CW4 � Demand for Immediate Payment of Outstanding Salaries and service emoluments of Mr. Emenike Sylvester Ibe. Solicitors� letter from Okorie Associates (Legal Practitioners) dated 13/03/2014.
- CW5 � Re – Demand for immediate payment of Outstanding Salaries and Emoluments of Mr. Emenike Sylvester Ibe Solicitors letter from Ekeanyanwu & Associates ( Legal Practitioner & Notary Public, a reply dated 25/03/2014.
- CW6 � Re-Demand for immediate payment of outstanding Salaries and service emoluments of Mr. Emenike Sylvester Ibe a further demand letter of Okorie & Okorie Associates ( Legal Practitioners) dated 02 /04/ 2014.
At the resumed hearing on the 18/01/2018, the CW1 was cross-examined and thereafter discharged. CW2, Mr. Celestine Sonnie Ibe, also adopted his sworn deposition as he testified for the Claimant as CW2. The matter was adjourned to 2/3/2018. On that subsequent day, he was cross-examined by the Defendant�s Counsel and discharged.
DEFENDANT�S CASE:
On 31/01/2019, the Defendant opened his defence through Chief George George-Ikechi JP � the Chairman of the Defendant Company as DW1. After adopting his sworn deposition, he tendered the following documents in defence of the suit which are marked as follows:
- Exhibit D1 � Re: Proposal for Investment in International Corrosion Control Limited by Seabulk Offshore Operator Nigeria Limited dated 25/4/2013.
- Exhibit D2 � Re: Letter of Employment dated 5/9/2007.
- Exhibit D3 � First Bank Letter: Re: Outstanding Indebtedness of your Director, Mr Sylvester Emenike Ibe on term Loan to First Bank of Nigeria Limited. Outstanding Balance as at 28/11/2013;
N18, 590,273:24 Dr dated 28/11/2013. - Exhibit D4 � Re: Indebtedness of Mr. Sylvester Emenike Ibe to First Bank of Nigeria Limited dated 29/11/2013.
- Exhibit D5 � Re: Demand for the Repayment of
N18,590,273:24 facilities from International Corrosion Control Limited by First Bank Nigeria Limited dated 29/11/2013. - Exhibit D6 � Re: Demand for immediate payment of outstanding salaries and emolument of Mr. Sylvester Ibe � solicitors� letter from Ekeanyanwu & Associates (Legal Practitioners & Notary Public) dated 25/3/2014.
- The purported extract of minutes of meeting of the Board of Directors of the Defendant held on Tuesday 4th June 2013 at the ICCL Conference Room 1, Nsukka Street, Mile 1, Diobu, Port-harcourt was tendered but vehemently opposed by the Claimant�s Counsel. His objection was sustained by this Honourable Court. Thus, the Extract of meetings cum the resolutions therein was tendered but rejected and marked �rejected�.
The Defendant attempted to appeal against this Court�s decision to reject the said document and so it filed a stay of proceedings before this Court. The application of 21/5/19 was heard on 22/5/2019 and determined by ruling on 27/05/2019 dismissing same and so this court ordered the Claimant�s Counsel to cross-examine DW1 whereupon he was discharged and Defendant closed their case. Upon granting them the requested time to file their final written addresses, the matter was initially adjourned to 8/10/2019 for adoption of Final Written Addresses. However, on the 18/11/2019 the parties� Counsel successfully adopted their respective written addresses and so the matter was adjourned to today for pronouncement of this judgment.
DEFENDANT�S ADDRESS AND SUBMISSIONS:
The Defendant�s final written address was filed out of time on the 15/11/2019. Within, Counsel formulated two issues for determination by this Court thus:
- Whether the Claimant is entitled to the alleged unpaid salaries and benefits which accrued during the time the Claimant was the Managing Director/Chief Executive Officer of the Defendant in view of the denial of the debt and his inability to meet the 3 targets given to and accepted by him in his letter of Appointment dated 5th September, 2007 (Exh.D2) at the time he was employed?
- Whether the Claimant made out a case to support his claim for the sum of
N83,936,000 alleged to be unpaid basic salaries, benefits and emoluments for the period 1st January 2009 to 4th June,2013.
On Issue No 1 above, Counsel stated that it is the case of the Defendant that upon the appointment of the Claimant as the Managing Director/Chief Executive Officer of the Defendant, International Corrosion Control Limited, he was given a letter of appointment dated 5thSeptember, 2007 which is in evidence as Exhibit D2. Counsel argued that the Claimant deliberately failed to tender this Letter of Appointment which is the foundation on which his contract with the Defendant rests. Accordingly, anemployee’s letter of appointment is the fountain head of the contract between such employee and his employer and has been defined in law as the bedrock on which any employee can lay claim to being employee of the employer �Fiicharles Organ vs. NLNG (2013) (7) LEDLR – 14.
Counsel submitted that it is in ExhibitD2that the 3 mandates/conditions given to the Claimant when he was employed were set out and it is in the same ExhibitD2 that the same conditions were accepted by him in writing. Counsel drewthe attention of the Court to section 167 (d) of the Evidence Act, 2011 on presumption of withholding of facts which are adverse to a party.
Counsel stated that it is also the case of the Defendant, as pleaded by it in paragraphs 10 and 11 of the Defendant’s Amended Statement of Defence and also set out in the Claimant’s Letter of Employment dated 5th September, 2007
that upon his employment, the Claimant had 3 targets
or tasks to accomplish. He reproduced the contents of the letter of employment dated 5/9/2007 and proceeded to state that the Claimant duly accepted the terms and conditions of this employment at page 2 of ExhibitD2 as the basis of the contract between him and the Defendant.
Furthermore, Counsel believes that this Claimant admitted the existence of the 3 specific targets during his cross-examination on 18/1/2018 when he answered the following questions this way:
Q: When you were employed, you were given 3 targets.
A: Yes.
- Reorganize the company, payoff its debts and return the
company to the path of profitability?
A. Yes.
It was argued by Counsel that the Claimant was therefore employed by the Defendant on the basis of these three (3) pronged targets as distilled from Exhibit D2which the Claimant accepted and counter signed.Accordingly, it is settled principle of law that parties are bound by the terms of their contract of employmentparticularly where the terms are clear and unambiguous � UBN PIcv Soares(2012) 11 NWLR. Counsel submitted on that parties to an agreement are bound by the terms of the agreement they entered into and where there is a valid contract, parties must be held bound by the agreement and by all its terms and conditions. There should be no room for a departure from what is stated therein. See Jeric (Nig) Ltd v Union Bank of Nigeria PIc(2002) 15 NWLR (PL 691) 447.He argued furtherthat the principle of law on this subject is that the Court must treat as sacrosanct the terms of an agreement freely entered into by the parties. This is accordingly because parties to a contract enjoy their contracts on their own terms so long as same is legal. The terms of a contract between parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document
which constitute the contract are invariably the guide to its interpretation.It isnot the business of the court to rewrite the parties� contracts for them. The Court however has a duty to construe the surrounding circumstances, including written or oral statements, so as to discover the true intentions of the parties � BFI Group Corp. vs BPE (2012) 18 NWLR (Pt. 1332) 209. Counsel stated further thatit is the law that where parties to a contract are ad idem on the conditions to be fulfilled before remuneration shall be paid to
the party entitled thereof, no payment of such remuneration shall be
made until such condition is met �Owena Bank (Nig) PIcvs Adedeji
(2000) 7 NWLR (Pt. 666) 222. He submitted that in paragraph 11 of the Amended Statement of Defence, this Defendant pleaded that between 17thSeptember,2007 � 4thJune,2013 when the Claimant ran the Defendant’s company as Managing Director/Chief Executive Officer, he was unable to meet the
targets/mandates given to him by the Board of Directors when he was
employed, namely, to “re-organize the company, payoff its debts and
return it to the path of profitability”. Counsel therefore urged this Courtconsider the basis of his employment and the expectations of the owners of the Defendant Company on one hand, and the actual performance of the Claimant at the end of 6 years (17thSeptember, 2007 � 4thJune, 2013) of his management of the Defendant in considering whether the Claimant is entitled to these claims.
According to his submission, it was due to the state of the Defendant Company that the Claimant was employed and given 3 mandates/targets. He accepted the 3 targets which formed the basis of his employment/contract but at the end of his 6 year tenure, he purportedly not only fail to accomplish them, but piled up huge debts to the extent that a staggering sum of N83, 936,000.00is now tied to him alone not to mention debts owed to other staff and third parties. Counsel submitted that a breach of contract is a failure to perform any promises which form the whole or part of a contract. It connotes unequivocal, distinct and absolute failure to perform an agreement � Oceanic Bank IntI Ltd v
Chitex Ind. Ltd (2000) FWLR (Pt. 4) 678 @ 693, para. E. A party is said to be in breach of a contract when he acts contrary to the terms of the contract � MTN Communications Ltd v. Sidney C. Amadi (2013) All FWLR (pt. 676) 1329. Counsel stated that as a Court of equity, this Court should not allow the Claimant to profit from his incompetence and wrongful act.
Counsel stated that it is settled law that a party should not be allowed to reap any benefit out of his own wrong doing as the Court should not allow itself to be used as an instrument of fraud; hence, no one should be allowed to reap any benefit out of his own fraud in the Court of equity. “Wrongful acts are not passports to favours”, argued Counsel relying on Gaaba v. Lobi Bank (Nig) Ltd (2003) FWLR (Pt. 173) 106 and Buswell v Godwin (1971) 1 All ER 418. He reiterated that where the words of a contract or agreement are clear, the operative words in it should be given its simple and ordinary grammatical meaning. If parties enter into an agreement, they are bound by its terms. A fact worthy of note is that it was the responsibility of this Claimant as the Managing Director/Chief Executive Officer and Chief Accounting Officer to pay the debts of the company, including debts purportedly owed him and that of any other staff of the Defendant and failure to do so amounted to a negation of the terms and conditions of his employment.
Another issue of interest by the Counsel is the fact that the Claimant admitted during cross-examination that it was his responsibility to pay salaries to himself
and that of other staff. He could not achieve these targets within the period of 17/09/2007 – 4/6/2013 when he ran the company as Managing Director/Chief Executive Officer as well as Chief Accounting Officer, despite the wide powers he had to pay off the debts of the Defendant which was one of the 3 reasons he was employed in the first place. Accordingly, when he was asked, why he did not pay himself after he had testified on how he effectively managed the resources of the company, the Claimant’s answer was that salaries were paid but not fully because the income was insufficient to pay all salaries. The Claimant was also asked “Apart from not paying yourself, you did not pay staff salaries and other creditors whom you sacked”. His answer was that the “Income was not enough to pay the salaries of these staff”.
Accordingly, it is settled law that �a person seeking the enforcement of a contract must show that all conditions precedent thereto have been
fulfilled and that he has either performed his part or is
ready and willing to perform all the terms which ought to
have been performed by him. � FGN v. Zebra Energy
Ltd (2002) 3 NWLR (pt. 754) Pg 471 @ Pg 491 — 492
According to the Supreme Court:
“A person seeking to enforce his right under a contract
must show that he has fulfilled all the conditions precedent
and that he has performed all those terms which ought to
have been performed by him. See BFI Group Corp. v. BPE
(2012) 18 NWLR (Pt. 1332) Pg. 209 (SC)
.
Counsel submitted that a Court of equity will not aid the Claimant to demand
the debt which he is claiming in this suit. He is further estopped from
making the claim under Section 169 of the Evidence Act, 2011.He also stated that if the Claimant had generated enough money he ought to have paid himself. As such, for the reasons set out above, he urged this Court to resolve issue one against the Claimant.
On issue two, which is whether the Claimant made out a case for the sum
of N83,936,000.00 alleged to be his unpaid basic salaries, benefits and
emoluments for the period between 1stJanuary, 2009 to 4thJune, 2013,Counsel refutes this claim that he is so owed by the Defendant. He said this allegation that he is owed the sum of N83, 936,000 as unpaid basic salaries, benefits and emoluments for the period of1st January, 2009 to 4th June, 2013 is baseless as he was the Managing Director/Chief Executive Officer from 17th September, 2008 to 4th June, 2013. The purported debt he claims in this suit falls squarely within the period he ran the company, argued Counsel.
However, that the Defendant does not owe this Claimant
as alleged or at all as at 4thJune, 2013 when he ceased to be the
Managing Director/Chief Executive Officer. That in paragraphs 6, 8, 9, 18
and 19 of the Amended Statement of Defence therefore, the Defendant denied
the alleged debts on the grounds that all salaries and benefits which
were not paid to the Directors and Management staff of the Defendant
as at 4thJune, 2013 were written off and voluntarily waived and
forfeited by them (including the Claimant) purportedly as a survival strategy so as to reduce the Defendant’s huge debt profile and make it more attractive to
prospective investors. Counsel submitted that in prove of such waiver, forfeiture or writing off of the Claimant’s and other Directors’ debts, the Defendant pleaded and relied on some documents as well as the testimony of its chief and only witness. They are accordingly:
- A letter dated 25thApril, 2013 written by Seabulk Offshore
Operators Nigeria Limited to the Defendant (Exh. D1) and Extracts from the minutes of a meeting of the Board of Directors
of International Corrosion Control Limited held on Tuesday, 4th
June, 2013. The extracts from the minutes which was tendered on 31st January2019 was rejected on the ground that there was a mix up in dates. - Defendant’s DW1 who gave evidence in support thereof in
paragraphs 3, 4, 5, 7, 9, 14, 16 and 17 of his witness deposition
on oath.
Counsel submitted that apart from the rejected extracts/minutes, there are
other independent and credible pieces of evidence to support and
prove the Defendant’s defence that the directors of the Defendant
including, the Claimant who was the Managing Director/Chief Executive
Officer as at 4th June, 2013 when the Board of Directors’ meeting was
held, agreed to waive all their outstanding debts as a survival strategy
so as to reduce the company’s debt profile and make investment in the
company attractive to investors.
Furthermore, Counsel attempted to draw the attention of the Court to the fact that both the Claimant and his brother, Celestine Sonnie Ibe who testified on his behalf as CW2, admitted that a board meeting was held on 4thJune.
2013. What was not admitted by CW1 and CW2 is that a decision was
taken to write off directors’ debts.
Therefore, Counsel urged the Court to accept the oral evidence
of DW1 who is the Chairman of the Defendant Company and who in
that capacity, presided over the meeting held on 4th June, 2013 and
testified positively to the effect that a decision was actually taken by the
directors to write off all unpaid debts of Directors and Management Staff
which were outstanding as at 4th June, 2013. There is ample proof in
Exhibit D2 and paragraph 5 of the Amended Statement of Facts that
DW1, Chief George George – Ikechi is the Chairman of the Defendant.
Counsel submitted that the oral evidence of DW1 is also admissible under sections 125 and 126 (a), (b) and (c) of the Evidence Act, 2011.He stated that when the oral evidence of DW1 is considered side by side with the third demand made in Seabulk’s letter dated 25th April, 2013 [ExhD1] which is for the writing off of all the Directors’ debts, the truth of DW1�sevidence becomes
obvious. The letter from Seabulk is dated 25th April, 2013 while the
Directors’ meeting which deliberated on it was held on 4th June, 2013. As such the oral evidence of DW1 is admissible in law
without more since he attended the Directors’ meeting held on 4th June,
2013 and in fact presided over it. Being a person who had direct
personal knowledge of what transpired at the Directors’ meeting held on
4th June, 2013 his evidence on the subject is admissible under Section
83(1) of the Evidence Act, 2011, argued learned Counsel.
He adumbrated that this is a civil suit and the burden of proof is on preponderance of facts and evidence as such, it is required that a person who asserts the positivity of an act, should prove same on a balance of probability. See section 134 of the Evidence Act, 2011. In Conclusion Counsel urged this Court to dismiss the Claimant’s case in its entirety for the aforementioned reasons.
CLAIMANT�S FINAL ADDRESS AND SUBMISSIONS:
The Claimant�s final written address was settled by his Counsel, Chidi B. Nworka Esq. and within, he formulated two (2) issues for the determination of this Court thus;
- Whether the Claimant established his claim as to be entitled to his reliefs?
- Whether the Defendant presented any defence to the action of the Claimant.
In arguing issue one Counsel submitted that at the risk of sounding pedestrian, the principle of law that he who alleges/asserts must prove. Claimant had in his suit established his grouse which is the non-payment of his salaries and emoluments by the Defendant. The question now is to determine whether he proved, first his entitlement to the said salaries and emoluments, and then secondly, that he was not paid and is still being owed these salaries and emoluments. Counsel submitted that the best evidence/proof of an allegation is an admission of that allegation. That is why our law is simply that what is admitted requires no further proof, as provided in Section 123of the Evidence Act, 2011.It becomes necessary at this point to discover what – if any, among the Claimant’s averments, were admitted by the Defendant.
Counsel stated that the Defendant expressly admitted these averments vide its Paragraph 1 of its Statement of Defence, wherein it supplied the fact that the employment contract was for a five-year termand in Paragraph 3 of the said Defence which also admitted the pleaded terms and conditions of service. This accordingly, relieved the Claimant of the onus of proving these allegations.
Counsel canvassed that the basic rule in pleadings is that a traverse whether by denial or refusal to admit must not be evasive but must answer the point of substance. The pleader must deal specifically with every allegation of fact made by his opponent. He must either admit frankly or deny boldly. Any half admission or half denial is evasive – MERIDIEN TRADE V METAL CONSTRUCTION 1898 3 SCNJ 1 @l ID – Further that a general transverse is not enough to controvert material and important averment in pleadings particularly where the claim is one in debt or liquidated money demand – Ibid @ 12. Same held in – IBEANU V [)GBEIDE 1898 9 SCNJ 77 @l 88, – ELENDU V EKWOABA 1998 10SCNJ 51 @l 62.
Counsel stated that no attempt was made to show, or even allude to the fact that any figure claimed by the Claimant was wrong. No alternative amounts were put forward by the defence, therefore the Claimant’s case, with respect to the amount he was owed and how same accrued, remained unchallenged.
Furthermore, that the law is equally very well settled that where a witness testifies to a fact in issue and the opposite party fails to cross examine that witness on that issue, same is deemed to be admitted. He said that our superior Courts have so repeatedly and consistently held in a number of decisions, such asIRIRI V ERHURHOBARA1991 3 SCNJ I @l 8-9; OGUALAJI V AG RIVERS 1997 5 SCNJ 240 @l 248inter alia, the above view. Consequently, he stated that this Claimant firmly established his claim in
this suit and this first issue ought to be ‘resolved in his favour. Counsel urged this Court.
On Whether the Defendant presented any defence to the action of the Claimant? It is learned Counsel�s submission that from the totality of the pleadings of the Defendant, the only defence presented against the claim of the Claimant is that these accrued salaries and emoluments were written off at a meeting of the Defendant’s Board of Directors on 4thJune, 2013. The law is elementary that he who asserts must prove. The provisions of Sections 131, 132, 133(2) and 136(1) of the Evidence Act 2011, are clear and unambiguous. Counsel cited the case of OKOYE V NWANKWO 2003 FWLR PT. 158, 992 @ 10m where it was held that:
�Evidential burden as a doctrine ofthe law of evidence imports that where a given allegation whether affirmative or negative, constitutes the crux of a party’s case and the onus of proof ofsuch allegation rests on him�-
Counsel impressed that one would expect that such a milestone decision in favour of the Defendant would be secured in writing. No document was drawn up for Claimant and all the other management staff owed to execute evidencing such waiver. Even some surrounding circumstances pleaded by the Defendant were not at all proved.He submitted that this defence presented by the Defendant in this case not only lacked credibility, but is out rightly untrue, and in any case were also not proved in anyway. Counsel pointed out that even this claim is an admission by the defence that the debt it owed the Claimant. As one cannot waive a non-existent right. Neither can one write off a non-existent debt. The fact that Defendant claims this debt was waived by the Claimant and written off by the Defendant’s Board of Directors on 4/6/13simply means that as at 4/6/13, the debt owed to Claimant was in existence. Accordingly, this is further proof of Claimant’s claim as to the existence of the debt owed. The only way the Defendant could have dislodged this claim, hinted Counsel, is to prove the waiver/write off as asserted. It therefore woefully failed so to do. Counsel therefore urged this Court to find and hold that the Defendant presented no defence at all to the Claimant�s case and also consequently urged me to resolve this second issue in favour of the Claimant. He finally urged this Court to hold that the Claimant firmly established his case and is entitled to the reliefs he seeks in this suit.
COURT�S DECISION:
I exhaustively read all the processes filed in this suit by these parties. I equally reviewed the evidence (Exhibits) in support of either side. I watched the witnesses testify in open Court and I also considered all the arguments by the respective Counsel which distilled some questions and proposed answers to them. I believe, a sole issue shall settle this case. This is issue number one as formulated by the Claimant�s Counsel. The said issue is whether the Claimant is entitled to his claims?
A little separation of the wheat from the chaff is necessary here. In other words, certainty and precision of what is necessary in this matter shall be given due attention here. From outset, it is not in dispute that the Claimant was/is an employee of the Defendant vide a letter of employment dated 5th September 2007 (Exhibit D2). The content of Exhibit D2 becomes the bedrock, fountain and standard of what the Claimant is/was to the Defendant. (This Exhibit D2 shall guide the decision of this Court in this matter and I shall be revisiting it appropriately). This is notwithstanding that the terms and conditions of that exhibit were said to have been revised by letter dated 19/12/2008 � Exhibit C 2.
Secondly, whether there was a termination or not of the contract of employment by either the Claimant or the Defendant, the obvious fact is that by the pleadings of these parties the Claimant is no more the Managing Director/Chief Executive Officer of the Defendant.
Thirdly, it is agreed that the tenure of the Claimant in the Defendant was for a period of 5 years which by effluxion of time expired even before the over flogged Board of Directors� meeting of 4/6/2013.
Fourthly, that in furtherance of the Claimant�s performance of his duties as the Managing Director/Chief Executive officer of the Defendant and in view of the conditions of service and its further reviews, the Claimant was duly entitled to salaries and emoluments/benefits. This is evidenced in Exhibit C2 and Exhibit D2.
Finally, that the present suit is as a result of the alleged refusal or non-payment of the Claimant�s purported outstanding salaries and emoluments in the sum of Eighty-Three Million, Nine Hundred and Thirty-Six Thousand Naira ( N83,936,000.00) only by the Defendant.
Having established the above undisputed facts, it is pertinent to note that Exhibit D2 encapsulates the real ingredient that makes salaries and emoluments possible in the hand of the Claimant. In other words, Exhibit D2 is the pivot on which the claims of the Claimant gyrates.
Conversely, Exhibit D2 arms the Defendant with the hammer to demand result/performance from the Claimant in lieu of his due salaries and benefits. Indeed, Exhibit D2 is both sweet and bitter whichever side it is applied.
Now, let me apply Exhibit D2 to the following illustration.
A happy Defendant informed the Claimant on 5/9/2007 that he was offered employment as the Managing Director/Chief Executive Officer of the Company with effect from 17/9/2007.In paragraph 2, he/the Claimant is to be a member of the Board of Directors and be responsible for the day to day running of the company along with the General Manager (Technical) and every other subordinate staff reporting through the General Manager to him.
In paragraph 3, the terms and conditions of the new appointment is manifest which is to �reorganise the company, pay off its debts and return it to the path of profitability�.
This is the crux of this matter� the Claimant was expected to carry out the mandate given to him and the company expected a revival or a recovery and in line with this vision and mission, led to the selection and appointment of the Claimant. It is not in dispute that the employment of the Claimant was to turn around the misfortunes of the Defendant hence, the obvious necessity to include paragraph 3 into Exhibit D2 � the contract of employment.
Having thus x-rayed the events leading to this suit, can one say that the Claimant has proven his case to be entitled to the reliefs he claims from the Defendant? Has the fortunes of the Defendant improved? � Is the Defendant a going concern? Can the Defendant stand on her feet? Are there profits eliciting life that will engender the payment of salaries and emoluments to both the Claimant and others who may not have the capacity to sue? The answers are in a the negative. Our law does not expect the achievement of an impossibility. It is true that a labourer deserves his/her wages. In this instance, the Claimant�s employment is peculiar. His duty was primarily put before him to reorganise the company, pay off its debts and return it to the path of profitability. From this task, it is obvious that the Company/Defendant is dying � owing debts and needed a talented hand to remove it completely or fairly from imminent death, hence the call for reorganisation. It equally meant that any one assuming the position of the Managing Director and Chief Executive Officer in the Defendant must be willing to work harder to pay off debts already owed by the company and manage/manoeuvre the proceeds of the Defendant out of complete debt and onto the path of profitability.
As such, I found it a bit curious as established in Exhibit C3 (which is a letter dated 29/11/2013), that it was following the Defendant�s request to this Claimant to explain why he collected a loan facility of N18,590,273.24 from First Bank, that the Claimant immediately caused a letter to be written on his behalf by his lawyer demanding the Defendant to pay him outstanding salaries and emoluments of the sum of N138,807,550.00. The Defendant�s lawyer had requested to know how that figure was arrived at as per Exhibit C5 tendered by this Claimant.
Frankly, if paragraph 3 of Exhibit D2 is well understood by the Claimant, he won�t be asking for the reliefs in this suit, although a labourer deserves his wages. But in this instance where is the wage, when the terms and conditions of the agreement the Claimant accepted as per Exhibit D2 was not achieved by him? Or if he did, evidence of his high performance was not tendered by him. It is settled law that one cannot place something on nothing and expect results in return. In employments/contracts of this nature, the agreement itself determines the rights of the parties bound by it. Without doubt therefore, the submission of the Defendant�s Counsel while relyingon the decision in Owena Bank Nig Plc V Adedeji (2000) 7NWLR (pt666) 222, is consistent. It was held there that:
It is the law that where parties to a contract have agreed on a condition to be met before one of them shall be entitled to remuneration, until such condition is met the payment will not be possible in law.
See Coker V Ajewole (1976) 9&10 SC.
This is a Court where equity and fairness domicile. Therefore, I must apply equity in doing justice to this case knowing fully well that this is a specialised Court and I am bound to follow the rules of this honourable Court. Order 5 Rule 6 NICN (2017 Rules) is sacrosanct. Rule 6 (1)says: �in any proceedings before it, the Court may apply the rules of common law and the rules of equity concurrently. Provided that where there is variance between the rules of common law and the rules of equity, with reference to the same subject matter, the rules of equity shall prevail�.
Indeed, the law is that the Claimant is entitled to the salaries and emoluments (because it is stated in Exhibit D2) but in equity and fairness, where is the money? Furthermore, the Claimant admitted under the fire of cross-examination that before he joined the Company nobody was paid salaries. Also, that some creditors were owed and staff were laid off as the Defendant was unable to pay salaries during his tenure as Managing Director because income was insufficient. So now having not been able to pay some staff during his tenure as admitted by him, can it be said that the Claimant came to this Court with clean hands? The principle of he who comes to equity must come with clean hands and he who wants equity must do equity will come into play here � See Okafor V Nnaife (1987) 4 NWLR (pt64) 129 @ 138 where Eso, JSC held thus:
�An equitable relief is not granted as a matter of course but is a product of an appeal to the conscience of the Court arrived at upon principles of equity supported by adequate and justifiable facts�
He equally stated in paragraph 5 of his pleadings that the Defendant was bankrupt.
In view of the averment that the Defendant was bankrupt, where will it raise the money to pay this Claimant? Equity shall aid this Court to stand for justice and to pronounce that what happened to other sacked workers who went home without their wages shall also apply here. I so hold. In the case instant the Claimant beyond proving that he is entitled to his entitlements, must also establish that the company has the means and the liquidity to pay the money but it has neglected or refused to pay. The condition precedent for his salaries is tied to him turning around the fortunes of the Company he was giving charge of as a contract employee.
It is pertinent to note that the crux of this matter is the non-payment of salaries and emoluments of the Claimant. The Claimant as it stands today is still a board member and shareholder of the company. He still has the powers and talent to collectively work with other board members to revitalise the ailing company/Defendant and return it to the path of profitability. In view of this, he is encouraged to still put his skills to work to realise the same dreams of the Defendant. When the dreams come to reality, he and others (whose salaries and emoluments are yet unpaid), can equally get paid. For now, the Honourable Court cannot force the dying Defendant to pay him alone, the alleged salaries. Doing so will be inequitable, unfair, and unjust and I so declare.
Besides, claims for salaries, being in the realm of special damages, requires the Claimant to set out specific particulars which the Court can unmistakably utilise at arriving at the exact claim made. The total sum claimed by this Claimant is N83, 936,000.00. However, what is contained in the Claimant�s statement of facts as particulars in Paragraph 4 (i) to (xi) is above the said N83,936,000.00. According to the Claimant, this sum was admitted by the Defendant since he never expressly challenged this amount and so there was no further need to prove this debt. The Defendant however denies owing this sum and stated that the Claimant still has to provide sufficient proof as to how he arrived at this figure. I believe that in order for a Claimant to succeed on this special claim, he must rely on the strength of his case and not on the weakness of the Defendant�s. Having denied that it owed the Claimant any outstanding salaries, it was up to the Claimant to establish by other credible evidence, how such amount was reached and possibly to produce documentary evidence to convince this Court that for the durations which he allegedly worked for the Defendant, he was not paid at all. All I have are general traverse without further evidence to support the purported debt owed by the Defendant. How much was his last salary and when was he paid last? No payslips, bank transfers, payment vouchers etc to ascertain this debt? At least such records should have been presented to convince this Court that he was indeed owed for the periods he claimed. For this reason alone I am not convinced that the Claimant is entitled to such huge amount of money without any further proof. The balance of probability is therefore in favour of the Defendant and I so declare.
Having thus reasoned and for the purpose of clarity, I hereby refuse all the reliefs sought and in particular:
- The sum of
N26, 421,000.00 (Twenty-Six Million, Four Hundred and Twenty-One Thousand Naira) being the purported balance of this Claimant�s outstanding basic salaries due and unpaid in respect of his employment with the Defendant from 1st day of January,2009 to 31st day of May,2013 is denied. - The sum of
N57, 515, 000.00 (Fifty-Seven Million, Five Hundred and Fifteen Thousand, Naira) being the purported total amount of the unpaid emoluments/benefits accruing to the Claimant from the Defendant on account of his employment as Managing Director of the Defendant from 1st day of January 2009 to the 31st day of May, 2013, which said sum is comprised as particularised in paragraph 4 (ii) �(ix), is also hereby denied. - Post judgment interest of 10% (Ten per cent) per annum from the delivery of judgment to the liquidation of the judgment sum is denied.
In all, I find no merit in this suit and as such I dismiss same entirely. I make no order as to cost. Parties shall bear their respective costs.
Judgment is entered accordingly.
Delivered in Owerri this 5th day of February, 2020.
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Hon. Justice I.S Galadima
Presiding judge
National Industrial Court of Nigeria, Owerri Division
