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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 2nd October 2025                 

SUIT NO: NICN/ABJ/362/2022

 

Between:     

 

Eric Owarume                                                           - Claimant

 

And

    

  1. Agrotek Value Chains Agent Ltd                                                                              
  2. Paul Nduka Eluhaiwe                                                                                  Defendants
  3. Eluhaiwe Carol                                       

 

Representation:

Samuel A. Akporido for the Claimant

P. E. Ediale, with him, Suleiman Abdullahi and C. G. Chukwudebelum for the Defendants

 

  JUDGMENT

In a Complaint filed by the Claimant on 15th November 2022, the Claimant sought the following claims against the defendants:

1. A declaration that the Claimant is still in the employment of the 1st Defendant based on the Judgment of the Federal High Court Per Ijeoma Ojukwu J, delivered on 9th December 2019 as at the date of filing this suit.

2. A declaration that the Claimant is entitled to payment of his monthly salary which is N700,000 from the day of his appointment till date as his employment is yet to be determined or terminated by the 1st Defendant.

3. An order directing the Defendants to pay the Claimant the sum of N65,100,000, being his salary and emoluments accrued from January 2015 to 30th September 2022.

4. An order directing the 1st Defendant to continue to pay the salary of the Claimant, which is N700,000 per month, from the day judgment is delivered till when judgment sum would be fully liquidated.

5. An order awarding the sum of N32,000,000, being the housing allowance which the Claimant is entitled to from 1st January 2015 to 30th September 2022.

6. An award for the sum of N10,000,000 against the Defendants as general damages for failure to pay the Claimant as at when due and thereby making the Claimant to suffer untold hardship.

7. An order directing the Defendants to pay 10% post judgment interest from the day Judgment is given till the date it is fully and finally liquidated.

8. And for such further order or orders that this Court may make in the circumstances of this suit.

 

THE CASE OF THE CLAIMANT:

In his evidence, as the only witness in his case, the claimant told the court that he is a shareholder in the 1st defendant and the pioneer Managing Director of the 1st Defendant from 2014 to 2017 when he was removed from the position. The 2nd Defendant is a Director and the Chairman of the 1st Defendant while the 3rd Defendant is a Shareholder in the 1st Defendant and a Director in the 1st Defendant. The claimant became the MD of the 1st defendant pursuant to a Special Resolution dated 18/11/2014. Upon his appointment as the MD, his monthly salary and remunerations was the sum of N700,000 as stated in the Special Resolution appointing him as MD. He received the sum of N3,500,000 as salary and emoluments for only 5 months and this payment was made in 2 tranches on 22/12/2014 and on 26/06/2015. He has not received any other payment from the 1st Defendant as salary apart from this payment. He traveled to the USA on 6th August 2017, to the knowledge of the Defendants, to visit his family. Upon his return to Nigeria on 23rd September 2017, the security operatives denied him access into the 1st Defendant’s office at No. 40, Mainstreet, Suncity Estate, Abuja and when he tried to gain access into his office, he was arrested by the Police. At the Police Post, he was informed that his arrest was at the instance of the 2nd and 3rd Defendants. Since September 2017, he has not been allowed to go near the 1st Defendant’s company or offices, farm or factory. Due to his unlawful removal from the management of the 1st Defendant, he instituted Suit No. FHC/ABJ/PET/8/2018 at the Federal High Court Abuja. In the judgment delivered on 9th December 2019 in the suit, the Federal High Court declared his removal from office of Managing Director and Director by the 1st Defendant to be unlawful, null and void. 

 

As an employee of the 1st Defendant in his position as the Managing Director, he is entitled to be paid his entitlements and emoluments which have been owed to him since January 2015 up to September 2022 which has now amounted to the sum N65,100,000. The 1st Defendant also resolved in the Special Resolution dated 18th November 2014 to pay him housing allowance in the sum of N4,000,000 per annum. However, this amount was never paid to him since 2015 till the date of filing of this suit. The housing allowance has accumulated to the sum of N32,000,000.

 

In his further evidence, the claimant stated that the Resolution dated 18/11/2014 was the instrument appointing him as MD of the 1st Defendant and it was the employment contract between him and the 1st Defendant. The resolution does not fall under the category of documents required to be filed with the Corporate Affairs Commission. His case before this Court is about his remuneration as an employee of the 1st Defendant as the Managing Director and not remuneration as a Director. The Company and Allied Matters Act provides that a Managing Director is entitled to be remunerated on a quantum meruit. As the Managing Director of the 1st defendant, the monies the Defendants claim he withdrew were all used in the construction of the 1st Defendant's factory in Egboha, Edo State, to pay daily workers, buying of building materials and other construction materials. In the defendants reply and counter affidavit filed in suit FHC/ABJ/PET/2018 decided by the Federal High Court, they confirmed that he was appointed the Managing Director of the 1st defendant. He discontinued Suit No. NICN/ABJ/168/2022 with notice of discontinuance dated and filed on 20/09/2022 and the suit was struck out on 7/11/2022 at the time the Defendants haven’t filed a memorandum of appearance in the suit. He decided to file this present suit on 15/11/2022. This suit was filed about 8 days after Suit No NICN/ABI/168/2022 was struck out. As such, this suit is not an abuse of Court process. The only address he knows of the Defendants is No. 4, Mainstreet, Suncity Estate, Abuja. He didn’t abandon his duties. It was rather the defendants who unlawfully prevented him from carrying out his duties. Till date, he has not been allowed anywhere near the 1st Defendant's Premises despite the Judgment of the Federal High Court affirming his position as Managing Director of the 1st Defendant.

 

The claimant tendered some documents in evidence which were admitted and marked Exhibits ERIC 1a, ERIC 1b, ERIC 1c, ERIC 2, ERIC 3, ERIC 4, ERIC 5a, ERIC 5b and ERIC 6.

 

DEFENDANTS DEFENCE

In defence of the suit, the defendants filed their statement of defence on 11th May 2023 with leave of court and also called a witness. The 2nd defendant, who said he is the Chairman of the Board of Directors and Managing Director of the 1st Defendant, testified as the witness for the defendants. His evidence is that the Special Resolution dated 18/11/2014 was not filed with the Corporate Affairs Commission, Abuja, and therefore not binding on the Defendants. He also said the Memorandum and Articles of Association of the 1st Defendant did not provide for the payment of salaries to the Directors of the 1st Defendant and it was also the decision in Suit No. FHC/ABJ/PET/8/2018 that Directors of a company are not employees of the company and as such are not entitled to any remuneration. The sums the claimant said he was paid in paragraph 7 of the Statement of Facts were not paid to him as salaries but the said sums, together with the entry of N1,000,000 on 11th August 2015, were part of the sum of N65,000,000 withdrawn by the Claimant without the authority of the 2nd Defendant who was the Chairman of the 1st Defendant. 

 

The Claimant was made a Director of the 1st Defendant because he was a co-in-law to the 2nd Defendant and an in-law to the 3rd Defendant.  The Claimant has not paid for the shares allotted him in the 1st Defendant till date. The Claimant disclosed in the processes he filed in suit FHC/ABJ/PET/8/2018 that he was residing in the 1st Defendant's guest house up to 23rd September 2017. The Claimant occupied the guest house until 2019 when the rent expired and the Claimant moved out. The 2nd defendant stated further that the Claimant has never been stopped from entering the premises of the 1st Defendant. It is the claimant who rather stopped coming to the office and chose to stay aware from work and his responsibilities as a Director of the 1st Defendant. The 1st Defendant's factory is at Ugboha, Edo State and all its operational activities are carried out there but the Claimant has never been to Ugboha since September 2017. The claimant filed appeal in respect of Suit FHC/ABJ/PET/8/2018 but the appeal was dismissed on the 30th December 2022 by the Court of Appeal, Abuja Division. The Court of Appeal affirmed the findings and decision of the Federal High Court. The 2nd defendant also said this suit is an abuse of process of court because the claimant had earlier instituted Suit No. NICN/ABJ/168/2022 in this Court against the same defendants, on the same facts and claiming the same reliefs against the defendants but the suit was on stuck out on 7th November 2022 following the notice of withdrawal filed by the Claimant.

 

DW1 tendered two documents in evidence which were admitted and marked Exhibits AGRO 1 and AGRO 2. 

 

FINAL WRITTEN ADDRESSES 

The Defendants’ Final Written Address was filed on the 17th day of January, 2025. Two issues were submitted for the Court’s determination. I have considered and evaluated all the submissions and arguments canvassed in the said Final Written Address of the Defendants. I do not see the need to rehash their contents herein. However necessary reference will be made to them in the course of this judgment. 

 

The Claimant’s Final Written Address was filed on the 27th day of February 2025. Two issues were submitted for the court’s determination. I have thoroughly considered and evaluated all the submissions and arguments canvassed in the said Final Written Address of the Claimant. I do not see any need to rehash the contents herein. However necessary reference will be made to them in the course of this judgment.

 

COURT DECISION

In paragraph 8 of the statement of defence, the defendants pleaded that this suit is an abuse of the process of court because the claimant had earlier instituted Suit No. NICN/ABJ/168/2022 in this Court against the same defendants on the same facts, and claiming the same reliefs against the defendants, but the suit was stuck out on 7th November 2022 following the notice of withdrawal filed by the Claimant. In his reply to the statement of defence, the claimant averred that this suit is not an abuse of Court process. He stated that he discontinued Suit No. NICN/ABJ/168/2022 with a notice of discontinuance dated and filed on 20/09/2022 and the suit was struck out on 7/11/2022. At the time, the Defendants hadn’t filed a memorandum of appearance in the suit. He filed this present suit on 15/11/2022, about 8 days after Suit No. NICN/ABI/168/2022 was struck out. Counsels for the parties made submissions on this issue in the final written addresses of the parties and I have considered all the points canvassed by counsels. 

 

From the facts and evidence in this case, it is not in dispute that the claimant initially instituted Suit No. NICN/ABJ/168/2022 in this Court against the same defendants with respect to the same subject matter of this suit. It is also not in dispute that the claimant discontinued that suit by a notice of discontinuance dated and filed on 20/09/2022 and the suit was accordingly struck out on 7/11/2022. It was thereafter the claimant filed this instant suit on 15/11/2022. The issue raised by the defendants is whether the claimant can file this suit as a new action when the earlier suit struck out is still a pending action on the Court’s cause list only waiting to be relisted. In other words, the defendants’ contention is that the claimant can only relist the struck out suit but cannot file a new action against the same defendants with respect to the same subject matter as the struck out suit.

 

The claimant discontinued suit NICN/ABJ/168/2022 by a notice of discontinuance. The orders which the court may make upon the discontinuance or withdrawal of a suit or claim and the circumstances which would warrant such orders are provided in Rules 6 and 7 of Order 61 as follows:

6.         Where a Claimant withdraws or discontinues any claim or suit or any part of his/her claim before the Defendant files in a defence such suit shall be struck out by the Court.

7.         Where a Claimant withdraws or discontinues a claim or suit or any part of the claim after the Defendant has joined issues by filing a defence within the time prescribed by these Rules, such suit shall be dismissed by the Court.

 

The implication of these provisions of the Rules is that where a defendant has not filed a defence in the suit before a claimant withdraws or discontinues the suit, the suit will simply be struck out but where the defendant has filed a defence in the suit before the claimant withdraws or discontinues the suit, the order to be made is that of dismissal of the suit. In the earlier suit that was struck out, the defendants did not take any step in the suit as at the time it was withdrawn by the claimant and the order made upon the discontinuance was simply one of striking out and not a dismissal. In view of the fact that the defendants had not filed a defence in suit NICN/ABJ/168/2022 at the time it was withdrawn by the claimant, the order striking out the suit was the appropriate order to be made in that circumstance. The question here is whether a fresh suit can be filed in place of the struck out suit. 

 

Rules 3 and 4 of Order 61 provide thus:

3.    A withdrawal or discontinuance as the case may be, shall not be a Defence to any subsequent claim.

4.    Where proceedings have been stayed or struck out upon a Claimant’s withdrawal or discontinuance under this Order, no subsequent claim shall be filed by the Claimant on the same or substantially the same facts until the terms imposed on the Claimant by the Court have been fully complied with.

 

In these Rules, by referring to any subsequent claim on the same or substantially the same facts, the Rules suggest that a claimant who discontinued a suit may file a new suit. Besides, it has been judicially resolved that a claimant whose suit is struck out may have the suit relisted or can file a fresh suit. In ADAMA vs. MAIGARI (2019) 3 NWLR (Pt. 1658) 26 at 53, the Supreme Court held thus:

 “An action struck out on an application for withdrawal or discontinuance can be re-listed. Re-listing a matter struck out as a result of an application for withdrawal or discontinuance of same and filing a subsequent action on the same cause of action are two sides of the same coin. Therefore, an action struck out on an application for withdrawal or discontinuance may be relisted or by filing subsequent action upon good cause shown. 

 

The Court of Appeal held the same view in EGWU vs. MODUNKWU [1997] 4 NWLR [Pt. 501] 574 at 584 and F.C.E. OKENE vs. OGBONNA (2006) 7 NWLR (Pt. 979) 282 at 299 where it was held that where a matter is struck out, the claimant is at liberty to renew it by either applying for the action to be restored on the cause list or by starting the same action afresh. In effect, the claimant in a suit struck out upon being withdrawn has two options. He can either apply to have the suit relisted or he can file a new suit. Therefore, contrary to the position of the defendants, it is not the law that a suit which was withdrawn by the claimant and struck out by the court can only be relisted. The claimant is permitted to file this suit instead of relisting suit NICN/ABJ/168/2022. This suit is therefore not an abuse of court process. I so hold.

 

The principal claim of the claimant in this suit is payment of his salaries and housing allowance accruing to him as MD of the 1st defendant. See reliefs 2, 3, 4 and 5. However, before these claims can be considered, the dispute as to whether the claimant was the MD of the 1st defendant within the time frame of his claims or still the MD up to the date of this judgment has to first be resolved.

 

In his evidence, the claimant said he was the pioneer Managing Director of the 1st Defendant from 2014 to 2017 when he was removed from the position. He said he became the MD of the 1st defendant pursuant to a Special Resolution dated 18/11/2014. He further stated that the Resolution dated 18/11/2014 was the instrument appointing him as MD of the 1st Defendant and it was the employment contract between him and the 1st Defendant. It is also the case of the claimant that following his removal from the management of the 1st defendant, he instituted Suit No. FHC/ABJ/PET/8/2018 at the Federal High Court Abuja and in the judgment delivered on 9th December 2019, the Federal High Court declared his removal from office of Managing Director and Director by the 1st Defendant to be unlawful, null and void. It was on the basis of these facts the claimant sought in relief 1, a declaration that he is still an employee of the 1st Defendant up to the date of filing this suit. 

 

In their defence, the defendants averred that the Special Resolution dated 18/11/2014 was not filed with the Corporate Affairs Commission, Abuja, and therefore not binding on the Defendants. What I observe from the averments of the defendants, as well as in the evidence of the 2nd defendant, is that the defendants did not deny the Special Resolution in Exhibit ERIC 3 or any of the matters resolved and stated therein. The contention of the defendants is however that the resolution was not filed with the Corporate Affairs Commission and for that reason, it is not binding on the Defendants.

 

Exhibit ERIC 3 is the Special Resolution of the 1st defendant dated 18th November 2014. The 2 resolutions passed in the Board of Directors meeting of the 1st defendants on 18/11/2014 are these:

  1. The sum of N700,000 is fixed as the monthly salary for the MD effective from 1/8/2014.
  2. The 1st defendant shall provide accommodation for the MD not exceeding N4,000,000 per annum effective 1/1/2015.

 

The resolution was signed by the claimant, with the designation as MD, and the 2nd defendant as Chairman. Of the two resolutions passed in that meeting, there is none appointing the claimant as MD of the 1st defendant. The designation of MD only reflected alongside the names of the claimant in the document. Contrary to the averment of the claimant, he was not appointed MD of the 1st defendant in the special resolution dated 18th November 2014.

 

One fact not in dispute in this suit is that the claimant was one of the Directors of the 1st defendant, along with the 2nd and 3rd defendants. I also do not find any serous dispute in this suit as to the fact that the claimant was the MD of the 1st defendant. Other than merely stating that the resolutions in Exhibit ERIC 3 was not binding on them, the defendants did not state anywhere in the statement of defence that the claimant was not appointed the MD of the 1st defendant at any time. The 2nd defendant, who testified in this suit on behalf of the defendants, did not also say the claimant was not appointed the MD of the 1st defendant at any time. The fact that the defendants were silent on this very important subject suggests that they do not dispute the assertion of the claimant that he was appointed the MD of the 1st defendant. In cross examination, DW1 said the claimant was never appointed as MD but he conceded that the claimant was made MD of the 1st defendant when he invited the claimant to join his wife to run the 1st defendant and the claimant was put in charge of running the day-to-day affairs of the 1st defendant and he was given the title of MD. 

 

The parties are in agreement in this suit that the claimant filed suit FHC/ABJ/PET/8/2018 in the Federal High Court and judgment was delivered in the suit on 9th December 2019. The claimant was the Petitioner in suit FHC/ABJ/PET/8/2018 while the 1st, 2nd and 3rd defendants in this suit were also the 1st, 2nd and 3rd Respondents in the suit. The defendants have shown that the claimant appealed the judgment to the Court of Appeal in Appeal No. CA/A/70/2020 and judgment was delivered in the appeal on 30th December 2022. CTC of the judgment of the Federal High Court is Exhibit ERIC 1A while the CTC of the judgment of the Court of Appeal is Exhibit AGRO 2. None of the parties have shown that there is any pending further appeal in the suit. 

 

In his evidence, the claimant referred to the reply and counter affidavit filed by the defendants in suit FHC/ABJ/PET/8/2018 before the Federal High Court and said the defendants confirmed, in these processes, that he was appointed the Managing Director of the 1st defendant. The Certified True Copy of the defendants’ answer to the petition in that suit as well as the counter affidavit deposed to by the 2nd defendant is Exhibit ERIC 1C. In cross examination, DW1 confirmed that he deposed to the counter affidavit in Exhibit ERIC 1C. I have examined Exhibit ERIC 1C, particularly the counter affidavit deposed to by the 2nd defendant. In paragraphs 7 and 9 of the counter affidavit made under oath by the 2nd defendant in suit FHC/ABJ/PET/8/2018 on 26th October 2018, these are what he said:

7.       The Petitioner had been the Managing Director of the 1st Respondent from inception but was removed as the Managing Director of the 1st Respondent by Special Resolution of the 1st Respondent dated 4th August 2017. The termination of appointment as Managing Director was duly communicated to the Petitioner by letter dated 4th August, 2017 by same Head of Admin, Ben Siloko who communicated his initial appointment by letter dated 25th November 2014. The Special Resolution, letter of Petitioner's initial appointment as Managing Director and his letter of termination as Managing Director are hereby exhibited and marked EXHIBITS 7, 8 & 9 respectively.

 

9.       As far back as 2014, the Petitioner recognised the 3rd Respondent as the Chairman of the 1st Respondent. The 3rd Respondent signed as Chairman, a resolution dated 18th November 2014 whereby the Petitioner was placed on salaries and allowances with the Petitioner counter-signing the same resolution. The said Resolution is exhibited and marked EXHIBIT 10,

 

On oath, the 2nd defendant confirmed that the claimant was appointed the MD of the 1st defendant in November 2014 and was in that position up to August 2017 when he was removed from the position. The 2nd defendant also confirmed that there was a resolution dated 14th November 2014 where the claimant was placed on salary as MD of the 1st defendant. Exhibit 10 referred to by the 2nd defendant in that counter affidavit is the same as Exhibit ERIC 3 in this suit. The 2nd defendant, by his averments in Paragraphs 7 and 9 of Exhibit ERIC 1C, has cleared any controversy as to whether the claimant was appointed the MD of the 1st defendant or not. Even in suit FHC/ABJ/PET/8/2018, the Hon. Judge of the FHC who delivered the judgment found as a fact that the claimant was the MD of the 1st defendant when he commented at page 27 of the judgment in Exhibit ERIC 1A thus: 

 “Now, before this furore, the petitioner was a shareholder and the managing director of the 1st respondent”. 

 

From the foregoing, I find that the claimant was the MD of the 1st defendant and he was appointed to that position in November 2014. Whether that position still subsists up to the date of judgment in this suit is another matter to be considered next in this judgment. 

 

When the claimant sought in relief 1 that he should be declared still in the employment of the 1st defendant, he is, in other words, saying he is still the MD of the 1st defendant and he relied on the judgment of the FHC in suit FHC/ABJ/PET/8/2018 to make that claim. He said the Federal High Court declared his removal from office of Managing Director and Director of the 1st Defendant to be unlawful, null and void and it is for this reason he claims that his appointment as MD of the 1st defendant subsists.

 

In the judgment of the FHC in Exhibit ERIC 1A, the first claim granted by the Court is as follows: “It is the humble but firm opinion of this court and I hereby declare that the petitioner was not removed by the respondents by due process. The purported removal of the petitioner is hereby declared null and void”. In this decision, the learned Judge of the FHC did not mention the position or office of the claimant in the 1st defendant affected by the declaration but at pages 33 to 34 of the judgment, the position of the claimant in the 1st defendant that was examined in the light of the provisions of CAMA is the position of Director in the 1st defendant. It was the claimant’s position as Director that the FHC found he was unlawfully removed from by the defendants and not the position of MD.

 

Let me mention that there is a difference between being MD of a company and being a Director of a company. Although the MD of a company is appointed from amongst the Directors, his appointment as MD translates him to an employee of the company.  On the other hand, the persons holding positions of Directors of the company are not employees of the company. Upon appointment as the MD, the MD’s office, responsibilities, remuneration, tenure and removal are different from those of Directors such that the termination of the MD’s appointment does not affect or remove him from the office of Director. Thus, when it comes to the question of employees of a company, there is a difference in the status of an MD and that of a Director and the procedure for removal from the position of MD is different from the procedure for removal as Director. While the removal of a person from the position of MD of a company is regulated by the terms and conditions of the appointment or the provisions of the Articles of Association of the Company, the removal of a Director from office is strictly regulated by the provisions of CAMA. 

 

I have examined Exhibit ERIC 1A and I found that the removal of the claimant from the position of MD of the 1st defendant was not considered neither was it the subject of the first relief granted in the judgment. The provisions of CAMA examined in the judgment were those with respect to the claimant’s removal from the position of Director of the 1st defendant. Since the claimant’s appointment as MD was different from his position of Director in the 1st defendant, the fact that his removal from his position of Director was voided did not reinstate him to the position of MD from which he was removed by the defendants. There is nothing in the judgment to suggest that the claimant’s appointment as MD of the 1st defendant continued to subsist or that he is still an employee of the 1st defendant till date. Accordingly, the judgment does not have the effect the claimant sought to place on it in this suit.

 

In his evidence, the claimant said he was MD from 2014 to 2017 when he was unlawfully removed. That is to say he acknowledged the fact that he was removed from his office of MD in 2017 only that he claims the removal was unlawful. However, the claimant did not challenge his removal from office of MD in this suit and the FHC judgment he relied upon in his contention that his appointment as MD subsisted did not help his case. The facts, as presented before me in this suit, is that the claimant was removed from the position of MD of the 1st defendant in September 2017, whether the removal was lawful or not is not an issue constituted in this suit for determination. I cannot therefore take a voyage into that ocean. In addition, for the fact that the judgment of FHC in suit FHC/ABJ/PET/2018 did not nullify the removal of the claimant from the position of MD of the 1st defendant, I cannot appropriately make the declaration sought by the claimant in relief 1.  It therefore means that the period shown, for which the claimant was the MD of the 1st defendant, was November 2014 to September 2017.

 

The claims of the claimant which remain to be determined in this judgment are his claim for payment of outstanding salaries and housing allowance. The claimant said when he was appointment as the MD of the 1st defendant, his monthly salary was fixed at the sum of N700,000 in the Special Resolution dated 18/11/2014, that is Exhibit ERIC 3. He said he was only paid 5 months’ salary in the sum N3,500,000 which he received in 2 tranches on 22/12/2014 and on 26/06/2015. He has not been paid any salaries since then. He also said he is owed salaries from January 2015 up to September 2022 and the total amount owed to him is the sum N65,100,000. The claimant also said he was to be paid the sum of N4,000,000 per annum as housing allowance by virtue of the Special Resolution in Exhibit ERIC 3 but he was never paid this allowance since 2015 till date of filing of this suit. He said the housing allowance has accumulated to the sum of N32,000,000.

 

In defence of these claims, the defendants averred that the Memorandum and Articles of Association of the 1st Defendant did not provide for the payment of salaries to the Directors of the 1st Defendant and that since Directors of a company are not employees of the company, as held in the judgment in Suit FHC/ABJ/PET/8/2018, the claimant is not entitled to any remuneration. The defendants also said the sums the claimant said he was paid were not paid to him as salaries but the monies were part of the sum of N65,000,000 withdrawn by the Claimant without the authority of the 2nd Defendant. It was further averred by the defendants that the Claimant was residing in the 1st Defendant's guest house up to 23rd September 2017 and he occupied the guest house until 2019 when the rent expired and the Claimant moved out.

 

The claimant said his monthly salary was the sum of N700,000. One of the resolutions in Exhibit ERIC 3 is that the sum of N700,000 is payable to the MD as monthly salary with effect from 1/8/2014. I have earlier said the 2nd defendant confirmed in his affidavit in Exhibit ERIC 1C that the claimant was placed on salary as MD of the 1st defendant in the 1st defendant’s Special Resolution contained in Exhibit ERIC 3. In this suit, the defendants did not refute the claimant’s averments that he was entitled to payment of salaries for the position of MD of the 1st defendant. Rather, the contention of the defendants is that the claimant is not entitled to his claim for salaries because the MEMART of the 1st defendant and CAMA did not make provisions for payment of salaries to the Directors of the 1st Defendant. The defendants appear to misunderstand the claim of the claimant. From the evidence adduced by the claimant, he is not seeking to be paid salaries for his position as Director in the 1st defendant. His claim is for payment of his salaries as employee of the 1st defendant in his position as MD.

 

In reliefs 3 and 4, the claimant sought the court to direct the Defendants to pay him the sum of N700,000 monthly from January 2015 to September 2022, in the total sum of N65,100,000, and to continue to pay him the sum every month from the day of judgment in this suit and till when the judgment sum would be fully liquidated. By these claims, the claimant still considers his appointment as MD subsisting till date of this judgment. I have earlier resolved that issue in this judgment. The removal of the claimant from the position of MD of the 1st defendant in September 2017 has not been set aside or reversed and it is not one of the issues brought for determination in this suit. It implies that he remained so removed since September 2017. Accordingly, he can only claim for unpaid salaries from the period of his appointment to the period he was removed. The claimant was appointed in November 2014 and he said he was paid for only 5 months after his appointment. That means he was paid up to March 2015 and not paid from April 2015 to September 2017. This was a period of 30 months. The total unpaid salary for the period is the sum of N21,000,000. This is the sum of the claimant’s outstanding salary for the period he was MD of the 1st defendant. In the absence of evidence that his removal has been set aside, he is not entitled to salaries from the period after he was removed in September 2017.

 

The claimant also relied on Exhibit ERIC 3 to claim payment of housing allowance in relief 5. His claim is for the sum of N32,000,000, being his housing allowance from 1st January 2015 to September 2022. The second resolution in Exhibit ERIC 3 is that the 1st defendant shall provide accommodation for the MD at a sum not exceeding N4,000,000 per annum commencing from 1st January 2015. The resolution did not say the MD is to be paid the sum of N4,000,000 per annum for accommodation. The sum is also not stated to be housing allowance. Rather, it is the responsibility of the 1st defendant to provide accommodation for the claimant at an amount not exceeding N4,000,000 per annum. The claimant is therefore not entitled to be paid the sum. In cross examination, the claimant said he did not rent any house for his official occupation as MD but when at the company’s factory location, he stayed in hotels at the expense of the 1st defendant and while in Abuja, he either stayed in the office or in the 2nd defendant’s house. This evidence from the claimant shows that he was accommodated by the defendants during the period he was MD of the 1st defendant. Let me add that even if the 1st defendant had failed to provide accommodation for the claimant during the period of his appointment as MD, the claimant will not still be entitled to be paid the sum in Exhibit ERIC 3 as the sum is not one payable to him. He can only claim refund of sums he spent for accommodation during the period of his appointment as MD if none was provided, which is not the case here. With respect to the claimant’s claim in relief 5, I find that he is not entitled to the claim.

 

In relief 6, the claimant sought to be paid the sum of N10,000,000 as general damages. The claim was sought on the basis that the defendants failed to pay the Claimant the sums due to him as at when due. I have also considered this claim but I find no basis to grant this claim. 

 

To conclude this judgment, I find that the claimant was unable to prove reliefs 1, 4, 5 and 6. These claims are dismissed. Reliefs 2, 3 and 7 are granted in these terms:

1. It is declared that the Claimant is entitled to payment of his monthly salary in the sum of N700,000 from the day of his appointment in November 2014 to September 2017.

2. The defendants are ordered to pay to the claimant the sum of N21,000,000, being the claimant’s outstanding salary from April 2015 to September 2017.

3. I direct that the sum in order 2 above should be paid to the claimant within 30 days from today. If the sum or any part of it remains unpaid after the period, the defendants shall pay 10% interest per annum on the sum until final liquidation of the judgment sum.

4.         The sum of N500,000 is awarded in favour of the claimant as cost, to be paid by the defendants.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge