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By an amended general form of complaint dated and filed on 12th April 2002, the claimant’s claims against the defendant are as follows: (a) The sum of N22,834,800.00 (Twenty Two Million, Eight Hundred and Thirty Four Thousand, Eight Hundred Naira only) being arrears of salaries and entitlement of the claimant together with agreed interest as at 31st January, 2008. (b) Interest on the said sum of N22,834,800.00 (Twenty Two Million, Eight Hundred and Thirty Four Thousand, Eight Hundred Naira only) at the rate of 21% per annum from 31st January, 2008 until judgment is given and at 10% per annum until final liquidation of the judgment sum. (c) The sum of N5,000,000.00 (Five Million Naira only) being the cost of this suit. Accompanying the amended complaint is an amended statement of facts, amended list of witness to be called at the Trial, witness statement on oath and list of documents and documents to be relied upon at the trial. The case of the claimant as pleaded in the amended statement of facts, is that the claimant is a Chartered Accountant residing at Plot 16, Block 49, Chief Samuel Ajayi Street, Magodo GRA, Lagos and at all material times in this suit, was the Managing Director of the defendant. That the defendant is a limited liability company registered under the laws of the Federal Republic of Nigeria and licensed to carry on the business of real estate development in Nigeria. The claimant pleaded that he was employed as the Managing Director of the defendant on the 21st December, 2006. The claimant avers that he was in the employment of the defendant from 21st December, 2006 to the 30th of October 2007 when the employment was determined and it was mutually agreed by the parties that the claimant be paid three months salary in lieu of notice. The claimant averred that he was therefore entitled to be paid till the 31st January, 2008 which made the period of the employment of the claimant with the defendant to be 14 months. The claimant further avers that the defendant did not pay the claimant any salary for the whole period of his employment contrary to the terms of the claimant’s employment. The claimant avers that the claimant’s monthly salary is N1,500,000.00 (One Million, Five Hundred Thousand Naira only). The claimant pleaded that he committed his full energy and knowledge to the promotion of the ideals and inspirations of the defendant. That in his capacity as the Managing Director of the defendant, he represented the defendant in many business transactions and was consistent in his pursuit of adding values to the defendant. The claimant avers that he conducted himself at all times in a manner consistent with the brand of the defendant till the 31st October, 2007 when the said employment was mutually determined to take effect from 31st January, 2008. The claimant further pleaded that the defendant was in the business of real estate development which it carried out in conjunction with both State and Federal Governments of Nigeria through the Public Private Partnership arrangement by helping to increase the impact reach and sustainability of the Government Housing Provision initiatives in the territory of any of the Government of the Federation in the Federal Republic of Nigeria with which the 1st defendant is in partnership. That at the time he was employed, the defendant was in the process of partnering with both Oyo and Lagos State Governments to construct housing units for the use and occupation of the citizens of the two States. The claimant further averred that Oyo State Government had approved and allocated 50 hectares of land at Akobo Government Reserved Area (GRA) Ibadan to the defendant for the construction of mixed development housing units and was in the process of signing a Memorandum of Understanding with the defendants before the employment of the claimant as the Managing Director of the defendant. The claimant also avers that the defendant was in the process of obtaining the approval and consent of the Lagos State Government to be allocated about 30 hectares of land at Ado Town in Ojo Local Government Area of the State to construct about 1772 units of houses for Lagos State citizens and was in the process of executing a Memorandum of Understanding with the defendant on the modalities for their collaboration/partnership when the claimant was employed. That the defendant saddled him with the responsibility of ensuring that the Lagos State Government approved and consented to the allocation and execution of the Memorandum of understanding with the Lagos State Government appointed Otunba Yomi Ogunnusi as the Consultant to the defendant in securing the approval and execution of a Memorandum of Understanding in respect of the land by the Lagos State Government. That the defendant was also sourcing for funds, loans, sponsors and investors to enable it execute the construction of the housing projects and all ancillary infrastructural projects incidental thereto. That he was the person coordinating, devising strategies and pursuing investors, loans, sponsors and financial institutions to raise funds for the execution of the defendant projects in his capacity as the Managing Director. That he wrote series of letters, business proposals and attended meetings with potential investors, sponsors, representatives of financial institutions and Governments in the claimant’s bid to ensure the success of the defendant’s project and in the discharge of the claimant’s duties. The claimant pleaded also that the defendant, as at the period under reference, was having difficulty raising money to meet the defendant’s operational costs and that the claimant was funding the defendant’s operational activities with his own personal money despite the fact that he was being owed salary arrears. That the defendant through its chairman kept assuring the claimant and other members of staff that the defendant had partners abroad who would soon put the defendant in funds for the defendant’s sustenance, payment of staff and the meeting of its operational and capital expenditure. That in spite of the defendant’s numerous assurances, the foreign partners as claimed by the defendant’s chairman did not put the defendant in funds to meet its financial obligations. The claimant equally averred that sometimes in 2007, the defendant through the claimant and the defendant’s Chairman, Mr. Victor O. Ogunfolaju, met with the Vice Chairman/CEO of Stabilini Visinoni Chief Akinbami in a bid to secure investment for the projects. That the Vice Chairman/CEO of Stabilini Visinoni proposed a joint venture arrangement in which Stabilini Visinoni would raise the funds for the execution and act as the contractors for the projects upon terms that would be agreed by the defendant though its chairman refused the offer. The claimant pleaded that he in a meeting with the defendant’s chairman expressed his reservations about the decision of the defendant’s chairman to reject the offer that to him would have significantly ameliorated the defendant’s financial difficulties and enable the defendant to meet its financial obligations in relation to its operational and capital expenditures. That his expression of a divergent opinion to the defendant’s chairman on ways of helping the defendant resolve its liquidity crises led to irreconcilable differences on a matter of business strategy and funding of the defendant between the claimant and the defendant chairman. That consequently, the defendant and himself mutually agreed to determine his employment. THE ISSUANCE OF DUD CHEQUES BY THE DEFENDANT The claimant avers that the sum of N22,834,800.00 was arrived at by the claimant for all his salary arrears from December 2006 to 31st January, 2008 together with the agreed interest based on the claimant’s salary of N1,500,000 per month, other entitlement and interest as mutually agreed by them. That the breakdown is as stated below:- SALARY AT 31.7.07 N December 2006 (1/3 of N1,500,000) = 500,000.00 January 2007 = 1,500,000.00 Total = 2,000,000.00 Interest for February 2007 = 28,000.00 17% x N2,000,000 x 1/12 = 2,028,000.00 Add salary for February = 1,500,000.00 As at 28.2.07 = 3,528,000.00 Interest for March 2007 = 49,900.00 17% x N3,528,000 x 1/12 = 3,577,900.00 Add salary for March 2007 = 1,500,000.00 5,077,900.00 Interest for April 2007 = 71,900.00 17% x N5,077,900 x 1/12 = 5,149,800.00 Add salary for April 2007 = 1,500,000.00 6,649,800.00 Interest for May 2007 = 94,000.00 17% x N46,649,800 x 1/12 = 6,743,800.00 Add salary for May 2007 = 1,500,000.00 8,243,800.00 Interest for June 2007 = 116,800.00 17% x N8,243,800 x ½ = 8,359,800.00 Add salary for June 2007 = 1,500,000.00 9,859,800.00 Interest for July 2007 = 139,000.00 17% x N9,998,800 x 1/12 = 9,998,800.00 Add salary for July 2007 = 1,500,000.00 11,498,800.00 Interest for August 2007 = 163,000.00 17% x N11,661,800 x 1/12 = 11,661,800.00 Add salary for August 2007 = 1,500,000.00 13,161,800.00 Interest for September 2007 = 186,800.00 17% x N13,161,800 x 1/12 = 13,347,800.00 Add salary for September 2007 = 1,500,000.00 14,847,800.00 Interest for October 2007 = 210,000.00 17% x N14,847,800 x 1/12 = 15,057,800.00 Add salary for October 2007 = 1,500,000.00 16,557,800.00 Interest for November 2007 = 234,000.00 17% x N16,671,800 x 1/12 = 16,791,800.00 Add salary for November 2007 = 1,500,000.00 18,291,800.00 Interest for December 2007 = 259,000.00 17% x N18,550,800 x 1/12 = 18,550,800.00 Add salary for December 2007 = 1,500,000.00 20,050,800.00 Interest for January 2008 = 284,000.00 17% x N20,050,800 x 1/12 = 20,334,800.00 Add salary for January 2008 = 1,500,000.00 21,834,800.00 Add school fees 2007 1,000,000.00 Amount Due N22,834,800.00 The claimant averred that pursuant to the above sums, the defendant issued a post dated Unity Bank cheque to the tune of N22,834,800.00 to him for all his salary arrears together with the agreed interest from 21st December 2006 to 31st January 2008 which cheque is in the custody of the Police. The claimant averred that when he presented the cheque, the cheque was dishonoured and marked “DAR”. That on realization that he had been issued a dud cheque, he reported the matter to the Police who invited the chairman of the defendant. That the Police collected the original copy of the said Unity Bank cheque as exhibit and the said cheque is still in custody the Police. Furthermore to the above, that the chairman of the defendant admitted issuing the dud cheque in satisfaction of the defendant indebtedness to the claimant and further reiterated the commitment of the defendant to pay the claimant. That the defendant through its chairman issued a new Bank PHB cheque for the same value of N22,834,800.00 (Twenty Two Million, Eight Hundred and Thirty Four Thousand, Eight Hundred Naira only) in favour of the claimant, this time under oath. The claimant continued his averments that he presented the newly issued cheque of Bank PHB and the cheque was also dishonoured by the Bank. The claimant pleaded that the said Bank PHB cheque is dated 30th October 2008 with serial number 15391506. That following the incident of the dud cheque, the defendant started operating underground while the defendant’s chairman fled the country. That the defendant’s chairman and alter ego was declared wanted by the Police and all efforts to track him down proved abortive. The claimant avers that the defendant has now resurfaced and is carrying on business in Nigeria and that till date the defendant has refused, neglected and failed to pay the claimant’s outstanding salaries and entitlement benefits whereof the claimant claims against the defendant as per his claims in the complaint. The defendant did not enter appearance nor filed any defence despite being served with the processes. Order 8 rule 5 (1) of the National Industrial Court rules 2007 provides as follows: “where a defendant or respondent fails to file a Memorandum of Appearance within the stipulated time or fails to file appropriate processes in defence of the action within the prescribed time, and also fails to file a Memorandum of Intention not to defend the action, the court may proceed to hear the matter and give Judgment”. Also Order 19 rule 2 of the National Industrial Court Act 2007 provides: “where a cause is called for hearing and the claimant appears but the defendant or respondent and/or counsel do not and no good cause is shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon him or her”. In accordance with the above provisions and after several adjournments to enable the defendant to appear and defend this action but failed despite the hearing notices served, the claimant adopted his witness statement on oath sworn to on 6th March 2012. The said witness statement on oath is on all fours with the statement of facts and so need no repetition. The defendant did not cross examine the witness. In the absence of the defendant to cross examine him despite an adjournment to that effect, the claimant thereafter closed his case. The court then ordered parties to file their respective written addresses in accordance with the provisions of Order 19 rules 1 and 2 of the National Industrial Court Rules 2007. The claimant’s written address was dated and filed on the 15th November 2012. The claimant after re-stating his claims against the defendant as in his statement of facts and his written depositions on oath, started his argument with what he titled: PRELIMINARY POINT OF LAW. The claimant submitted that it is pertinent to bring to the fore the defendant’s lack of interest in defending this matter. That the defendant has brazenly failed and neglected to enter appearance in this suit despite the fact that the originating processes, the accompanying documents and several notices were served on the defendant by this court. That the rules of this court are very clear on the effect of failure to enter appearance. The claimant’s counsel referred this court to the provisions Order 8 Rules 2 and Order 8 Rules 5 (1) which had earlier been reproduced above in this Judgment. The claimant’s counsel argued that it is trite principle of law that fair hearing should be given to the parties in a proceeding. However, that a party who refuses or neglects to make his defence, if any, to a case against him cannot be heard to complain of breach of fair hearing where judgment is eventually given against him. That such a party will be deemed to have waived his right to fair hearing or the right to present to the court his own side of the story. Counsel cited the case of Charles Okeke v. Legal Practitioners Disciplinary Committee [2005] 7 SC pt. 111 at p. 94 where Musdapher JSC (as he then was) held that: “It is my view, that the appellant who was given ample opportunity to appear before disciplinary tribunal, but deliberately refused to do so, had waived all his rights of complaint against the procedural defects. The appellant deliberately decided to opt out of the trial when he had adequate information about the hearing date. Indeed the matter had to be adjourned several times to enable the appellant to defend himself…” This done, the claimant’s counsel then raised a lone issue for determination of this court, which is: “whether or not the claimant is entitled to his claims in this suit”. Arguing on the issue, the claimant’s counsel submitted that the duty of an employer to remunerate an employee under a contract of employment is sacrosanct both at common law and under the relevant statutes. That payment of agreed wages is at the epicenter of a contract of employment. That this is so because the wages paid by the employer is the consideration for the work done while in the service of the employer. To counsel, it amounts to repudiating breach of contract giving rise to an action for damages or debt to refuse or fail to pay agreed remuneration, citing Sections 1, 2, 3 and 4 of the Labour Act, and Nigerian Airways Limited v. Gbajumo [1992] 5 NWLR (pt. 224) 735, Chitty on Contracts, Volume 11 (specific contracts) 29th Edition, London Street and Maxwell, 2004 at 984, paragraph 39 – 074 and the case of Browning & Ors v. Crumlin Valley Collieries Ltd [1926] 1 KB 522 at 528 where Green J. held that the consideration for works is wages and consideration for wages is work. The claimant’s counsel argued that in the instant case, there is clear evidence before this court that the defendant employed the claimant as its Managing Director, the terms of which were stated in Exhibit JA1. That it is also a fact that upon the cessation of the claimant’s employment, the defendant owed the claimant arrears of salaries and other entitlements to the tune of N22,834,800.00 which is evidenced in Exhibit JA3. That the defendant admitted its indebtedness to the claimant by issuing a cheque Exhibit JA3 in the sum of N22,834,800.00 in favour of the claimant which was later returned unpaid. That on the strength of the foregoing authorities, the claimant is entitled to his salaries and other entitlements for services rendered to the defendant in the course of his contract of employment and urged this court to so hold. CLAIMS ON INTEREST AND SOLICITORS’ FEES The claimant also claims for interest on all his salary arrears and cost of Solicitors’ fees for instituting this suit. These, the claimant argued are necessary consequences of the failure and neglect of the defendant to repay the claimant the said salary arrears for the sum of N22,834,800.00. That the defendant has not remitted any amount in repayment of the salary arrears since January 2008 when the claimant resigned his employment with the defendant. The claimant argued that he has been denied the use of the fund and in consequence thereof he retains the services of a legal practitioner to apply to this court for remedy. That in Edison Automotive Industries Ltd v. National Economic Reconstruction Fund (NERFUND) [2009] 8 NWLR (pt. 1144) 535 at 593 para E, the Court of Appeal while elucidating on when interest can be awarded held that: “It is trite that in judicial proceedings when claims are made for liquidated money demand, interest may be awarded in two distinct circumstances namely: (i) As of right; and (ii) At the discretion of the court. An interest is claimed as of right where it is contemplated in the agreement between the parties, or under a mercantile custom or under a principle of equity such as breach of a fiduciary relationship. See London, Chathan & Doner Railway V.S.E Railway [1893] AC 429 at 434. Where a party claims interest as of right, the proper practice is to claim entitlement to it on the writ of summons and plead facts which show such an entitlement in the statement of claim. Where a plaintiff fails to include his claim for interest on the writ of summons but facts are pleaded in the statement of claim and evidence given which entitlement to such interest, the court may if satisfied with the evidence award interest”. The claimant also submitted that the Supreme Court has further stated that the award of interest is either based on either prior agreement of the parties as contained in a document to that effect or as provided by a rule of court, citing G.K.F Investment Nig. Ltd v. Nigerian Telecommunication Plc [2009] 15 NWLR (pt. 1164) 344 at 376 para G. The claimant further submitted that the rules of this court make provision to compensate a claimant who has been denied the benefit of quiet enjoyment of his salary/entitlement. Order 21 rule 4 of the NIC rules 2007 provides that: “The court at the time of delivering the judgment or making the order may direct the time within which payment is to be made or other act is to be done and may order interest at a rate not less than 10 per cent per annum to be paid upon any Judgment”. The claimant therefore submitted that he is entitled to these claims and prayed this court to so hold. Furthermore, the claimant submitted that the Supreme Court in Badmus v. Abegunde [1999] 11 NWLR (pt. 627), 493 at 502, stated that: “The other is damages which, when averred as having been suffered, the law will presume to be the direct natural or probable consequence of the act complained of …” See also UAC of Nigeria Plc v. Irole [2001] 5 NWLR (pt. 707) 583 at 593 para F – B. That damages sought by the claimant naturally flow from the default of the defendant which is a breach of the terms of the contract between the parties and urged this court to grant same. The claimant therefore submitted that he is entitled to his claims on interests and solicitors’ fees being the direct consequence by the defendant’s failure or neglect in paying the claimant’s arrears of salaries and other entitlements. The claimant urged the court to grant all his claims in this suit. The defendant did not file any written address and so there was no reply on point of law by the claimant. I have carefully considered the issues involved in this case, the processes and all the documents frontloaded as well as the argument and authorities cited by the claimant and his counsel. The claimant in this case claims the sum of N22,834,800.00 (Twenty Two Million, Eight Hundred and Thirty Four Thousand, Eight Hundred Naira only) being arrears of salaries and entitlement together with the agreed interest as at 31st January, 2008. He also claims 21% interest per annum from 31st January 2008 until judgment is given and at 10% per annum until final liquidation of the judgment sum. As I pointed out earlier, the defendant neither entered appearance nor filed any defence to the action despite being served with the processes and all hearing notices. Order 8 Rule 5 (1) of the National Industrial Court Rules 2007 provides: “where a defendant or respondent fails to file a Memorandum of Appearance within the stipulated time, or fails to file appropriate processes in defence of the action within the prescribed time, and also fails to file a declaration of intention not to defend the action, the court may proceed to hear the matter and give judgment”. Also Order 19 rule 2 of the said NIC Rules 2007 stipulates: “where a cause is called for hearing and the claimant appears but the defendant or respondent and/or counsel do not and no good cause is shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon him or her”. In the absence of any defence processes by the defendant, it is trite law that where pleadings are not denied nor controverted by way of a statement of defence, the claim as contained in the statement of facts are deemed admitted by the defendant. See Total Nigeria Plc v. Morkah [2002] 9 NWLR (pt. 773) p. 492 at 513, Strabag Construction Nig. Ltd v. Adeyefa [2008] 10 N.L.L.R (pt. 26) p. 186 at p. 211, Oketola v. Adeleke [1999] 1 NWLR (pt. 585) p. 55, Nwako v. Bellview Airlines Ltd (unreported) Suit No. NICN/LA/151/2012 delivered on 10/01/2013. It is also trite that despite the absence of defence processes by the defendant, the claimant still has to make out his case and can only succeed if he proves his case on the balance of probability. See NEPA v. Inameti [2002] 11 NWLR (pt. 778) p. 397 at p. 426, Nwako v. Bellview Airlines Limited (unreported) Suit No. NICN/LA/151/2012 delivered on 10th January, 2012, Isegen v. Multi-Links Telecommunication Ltd (unreported) Suit No. NIC/LA/176/2011 delivered on 19/3/13. In evaluating the evidence both documentary and oral, it is evident that the claimant was employed by the defendant as its Managing Director the terms of which are stated in Exhibit JA1 which is the letter of appointment. For ease of reference, I hereby reproduce Exhibit JA1. 21st December, 2006 Mr. Joseph O. Adegun Plot 16, Block 49, Chief Samuel Ajayi Street, Off Emmanuel Keshi Road, Magodo GRA, Lagos. Dear Sir, APPOINTMENT AS MANAGING DIRECTOR OF OUR COMPANY We refer to your application letter dated 19th December, 2006 and the Interview you had with the undersigned on the 20th December, 2006, in our office in Ibadan. Based upon your performance at the interview and in view of your knowledge and experience of the Construction Industry, we have decided to appoint you the Managing Director of our company with effect from the 21st December, 2006. Your salary and allowances will be N18,000,000.00 (Eighteen Million Naira per annum (i.e. N1.5 Million per month). Your other entitlements will be as follows: 1. You will be entitled to an official car and a driver. 2. You are entitled to an annual overseas leave for you and your wife at the expense of the company. 3. Medical facility will be free for you and your family. 4. Children school fees: You will be paid a sum of N1,000,000.00 per annum to cover you children’s school fees. You will no doubt realize that this position is that of enormous responsibility, and the board will rely on you to bring your knowledge and experience to bear in nurturing this organization to an enviable position in the future. We look forward to a happy and fruitful business relationship with other members of the Management. You will be required to commence work immediately. Congratulations. Yours faithfully, Sgd. Chairman/CEO From the content of Exhibit JA1 reproduced above, I find that there was an employment relationship between the claimant and the defendant. The claimant has also established before me that upon the cessation of the employment, the defendant owed him arrears of salaries and other entitlement to the tune of N22,834,800.00 which is evidenced in Exhibit JA3 which is a Bank PHB cheque issued in favour of the claimant to the tune of N22,834,800.00 which cheque the claimant said was returned unpaid. On the strength of the above piece of evidence I am of the view that the claimant has proved his entitlement to his salaries and other entitlements for services rendered to the defendant in the course of his employment and I so find and hold. On the whole, I hold that the claimant’s suit succeeds. Consequently, I order as follows: (1) The defendant is to pay to the claimant the sum of N22,834,800.00 (Twenty Two Million, Eight Hundred and Thirty Four Thousand, Eight Hundred Naira only) being arrears of his salaries and entitlements not later than 30 days from the date of this Judgment. (2) The defendant is to pay 10% interest on the Judgment sum after the said 30 days until final liquidation of the Judgment sum. (3) The defendant shall pay N50,000.00 cost to the claimant. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Presiding Judge