IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

                        IN THE ABUJA JUDICIAL DIVISION

                                    HOLDEN AT ABUJA

 BEFORE HIS LORDSHIP HON. JUSTICE O. O. OYEWUMI

DATE: 18TH JANUARY, 2023                 SUIT NO NICN/ABJ/267/2019

 

BETWEEN:

WESTLINK AIRLINES NIGERIA LIMITED……….CLAIMANT

AND

STAVROS THEODOROPOULOS       ……………….DEFENDANT

 

REPRESENTATION

Edwin Inegededu Esq. with Evelyn Dele Esq., Ene Attah Esq. and Michael Okoh Esq. for the Claimant.

A.O. Maduabuchi (SAN) Emeka Okoye Esq., with Maxwel Chukwujawa Esq., Chijioke Dike Esq., Chimezie O. Nwodo Esq. and Faruk Mamedu Esq. for the Defendant.

                                               JUDGMENT

1.      By a General Form of Complaint filed on the 11th September, 2019, the claimant seeks the following reliefs against the defendant:

 

i.                    A Declaration that the purported resignation of the Defendant with effect from 20th May, 2019, without a prior 60-day notice is unlawful, null, void and amounts to a breach of the Employment Contract between parties.

ii.                   A Declaration that the Defendant’s refusal to participate in the Base inspection by NCAA as the Claimant’s Director of Maintenance, on 21st May 2019, purportedly on grounds of his supposed resignation with effect from 20th May 2019, is malicious, perfidious, null and a breach of the Defendant’s Employment Contract.

iii.                An Order of this Honourable Court directing Defendant to pay to the Claimant, the sum of $14,000 ($7000 Monthly salary for 2 months) being the amount due in lieu of the agreed 60-day prior notice.

iv.                An Order of this Honourable Court directing the Defendant to pay the sum of $336,000 being the total amount of income/revenue for 28 days ($12,000 per day from 1st June 2019-28th June 2019) which the Claimant lost as a result of the grounding of its operations on account of the Defendant’s resignation without prior notice, and his refusal to take part in the base inspection by NCAA, on 21st May, 2019.

v.                   An Order of this Honourable Court directing Defendant to pay the sum of N50,000 for each day after his resignation on the 20th May 2019, that he remains resident in Nigeria under the Claimant’s Expatriate Quota.

vi.                General Damages in the sum of $100,000.000 (or its equivalent in Naira) for the Defendant’s breach of his employment Contract.

vii.              The sum of $100,000.000 (or it equivalent in naira) as aggravated and exemplary damages for the Defendant’s malicious and deceitful conducts.

viii.            Cost of this action as assessed by this Honourable Court.

 

2.      It is the claimant’s case that the defendant was its employee who was offered employment as Aircraft Maintenance Engineer and Head of Engineering, it was accepted by him and subsequently by a formal agreement executed by parties his status includes the Director of Maintenance. The terms of the employment are well detailed in the employment contract and the defendant after getting his Combined Expatriate Resident Permit and Alien Card processed by Claimant resumed duty as the Claimant’s Director of Maintenance. By the contract between the parties, the agreement was for an initial period of 12 months beginning from 10th April 2018 which to lapse on 9th April, 2019 but subject to renewal by mutual consent of the parties. Parties mutually renewed the contract for another 12 months period which subsists till April, 2020. The Claimant being a holder of an Air Operator Certificate (AOC) is subject to AOC renewal process and part of which is to present nominated persons to the Nigerian Civil Aviation Authority or interview to enable the Authority to determine his suitability and the final stage of base inspection and pursuant to which it presented the defendant to the Authority as its Director of Maintenance. The defendant attended the interview, passed and was accepted by the Authority as the Claimant’s Director of Maintenance. The defendant contrary to the terms of the agreement between parties resigned his employment as Director of Maintenance of the Claimant on the 20th day of May, 2019 without giving the prescribed 60 days’ notice to the Claimant a day before the base inspection of the NCAA and all efforts to get him to withdraw his resignation letter and reconsider his position proved abortive. That the resignation of the defendant is a breach of the employment contract and failure to participate in the base inspection is a breach of the duties owed the Claimant. The said breach has caused the Claimant several losses including grounding of its activities by the Authority for 28 days as its AOC was not renewed and also lost clientele and its goodwill in the Aviation Sector which damage caused its reputation still being corrected at high-cost implications.

 

3.      The defendant in response vide its statement of defence filed on the 12th day of December, 2019 contended that his employment with the Claimant lapsed since the 9th day of April, 2019 and has not been mutually renewed as asserted by the Claimant and his employment was only as Aircraft Maintenance Engineer as well as Head of Engineering and not as Director of Maintenance. That he accepted the offer made to him as Aircraft Maintenance Engineer but the Claimant cunningly included the position of Director of Maintenance in the agreement executed by parties without his consent. According to him the Claimant took advantage of his vulnerable situation owing to the fact that he had left Greece to Nigeria and made him execute the agreement. The Claimant only tricked the defendant to come to Nigeria on the pretext that he was coming to work as Aircraft Maintenance Engineer only to insist that his work included being a Director of Maintenance. That he has served out his contract which expired on the 9th day of April, 2019 and was not ready to attend the interview of the NCAA slated for 14th of May, 2019 in respect of the position of Director of Maintenance but the Claimant prevailed upon him and he did pass the interview and was accepted by the NCAA. However, after his request that he be properly designated as Aircraft Maintenance Engineer and not as Director of Maintenance was not met by the Claimant, he refused the plea of the Claimant to help stand in as the Director of Maintenance for the base inspection that was to take place on the 21st-24th May, 2019 he notified the Claimant that he was leaving unless he was designated properly. However, he agreed to continue to work for the Claimant until things were sorted out and he did work for them by performing several duties as recorded in the log books and also carried out pre-departure checks on several flights of the Claimant on several dates and worked routinely for the Claimant till the 30th of June 2019. He equally attended the AOC renewal debriefing meeting on the 28th of May, 2019 in his capacity as the Director of Maintenance. The ineptitudes of the Claimant based on the findings and recommendations of the NCAA during the inspection caused the non-renewal of its AOC and as such self-inflicted. He continued that the terms and tenor of the agreement executed by parties only envisage mutual renewal of the agreement but the Claimant attempted to unilaterally renew same, inspite of his insistence that he be designated properly. He reiterated that the relationship between parties have ended on the 9th day of April, 2019 by effluxion of time and as such he did not cause or occasion any loss to the Claimant, rather it is the Claimant that is indebted to him for services rendered to them in May, June, July and August to the tune of $28,000.

 

4.      Also, filed along with his defence, is a counterclaim wherein the defendant counterclaimant counterclaims against the Claimant/defendant to counterclaim in the sum of $ 43,000 representing his unpaid salaries and allowances for the months of October-December, 2018 and May- August 2019  in his capacity as Aircraft  Maintenance Engineer at the salary rate of $7,000 and in exercise of his duty he went with the defendant to counterclaim’s Aircraft to United State of America entitling him to his daily allowance has an outstanding balance of $2400. The counterclaimant’s salary for the month of October was paid in part leaving a balance of $2,000 while he was not paid at all for November and December, 2018, May, June, July and August 2019.

 

5.      Wherefore the Defendant by way of Counter claim claims from the Claimant/Defendant to Counterclaim as follows;

 

 

a.      #2400 (Sic) being unpaid allowance while the Defendant/counterclaimant was in the United States of America.

b.     #2000 (Sic) being balance of Counter Claimant’s Salary for October 2018.

c.      #11,200 (Sic) being 80% of the Counter Claimant’s Salary for two months November and December 2018 when the Counterclaimant was off duty as agreed by the parties.

d.     #28,000 (Sic) being the counter Claimant’s Salaries for May, June, July and August 2019 at #7000 per month making a total of #43,600 United States Dollars.

 

6.      At the close of pleadings, parties intimated the Court of their desire and thus consented to adopt the Argument on Record Procedure pursuant to Order 38 Rule 33 of the National Industrial Court (Civil Procedure) Rules, 2017 whereby parties dispense with the need for oral evidence and the case is tried on record with the aid of the pleadings and document relied on by each party. As it is customary to do under this procedure, the Claimant filed its final written address first before the Defendant/counterclaimant. Learned Counsel on behalf of Claimant in the final written address formulated a sole issue for determination to wit; Whether having regard to the evidence before the Court, the Claimant is entitled to its claims.

 

7.      Learned counsel in addressing this sole issue submitted that the Claimant’s duty to prove the facts pleaded in his statement of facts is on the balance of probability. He relied on Section 134 of the Evidence Act, 2011; Uwah v. Akpabio [2014]LPELR-22311 (SC)19, Paras D-F; Consolidated Resources Ltd & Anor v. Abofar Ventures Nig Ltd [2007]6 NWLR (Pt 1030)221@231, Paras C-D. Learned counsel submitted that there are some settled facts from the facts and circumstances of this case which were not impeached by the pleadings of the Defendant or his documentary evidence and as such deemed admitted. He referred the Court to Mabamije v. Otto [2016] LPELR-26058@37-38, Paras F-E; Amayo v. Erinmwingbovo [2006] LPELR-458@20, Para C. He submitted that the claimant’s case is simply that the defendant by his failure to give 60 days prior notice of his resignation has breached the terms of his employment agreement which was renewed. Learned counsel submitted that the Exhibit CA3 which is the agreement executed by parties detailed the terms and condition which is the basic document to be considered especially where the condition of mutual renewal is derived from same. He cited in support the following cases; Olalekan v. Management Board, UNIMAID Teaching Hospital [2012]LPELR-20099 (CA)30-31, Paras E-A and Larmie v. D.P.M.S. Ltd [2005]18 NWLR (Pt 958)438@459, Paras D-E. He submitted that the defendant having admitted the existence of the agreement in Exhibit CA3, the claimant has no further onus to prove same. He referred the Court to the case of R.C.C. (Nig) Ltd v. R.P.C. Ltd [2005]10 NWLR (Pt 934)615@628, Paras D. He submitted that the doctrine of Pacta sunt Servanda applies as the law remains that parties are bound by their agreement. He cited in support the following cases; A.G. Rivers State v. A.G Akwa Ibom State [2011]3 MJSC 1 @ 120, Paras A-C; Arjay v. A.M.S. Ltd [2003] 7 NWLR (Pt 820) 577@634, Paras B-D; Adekunle v. UBA Plc [2016]LPELR-41124(CA)19, Para B and Momoh v. CBN [2007]LPELR-8842 (CA)30, Para G. Learned counsel submitted that from the agreement no form was specified  for the mutuality of renewal and the agreement did not state how the consent should be expressed and as such same could be oral, written or implied. He submitted that from the facts of this case the mutuality of consent could be implied from the facts of this case. He relied on the case of Shena Security Co Ltd v. Afropak Nig. Ltd & Ors [2008]LPELR-3052(SC)41, Para F. Learned counsel submitted that during the pendency of the initial agreement and even after the renewal the defendant carried out his duties under Exhibit CA3 as the Director of Maintenance of the Claimant and even resigned as such on the 20th May, 2019 as seen in the resignation letter, Exhibit CA8. He submitted that the defendant had no contrary opinion to the Email of the Claimant expressing its intention to renew the agreement and also continued as staff of the Claimant which goes to show the reciprocity of renewal and existence of a valid subsisting contract. He argued that even the NCAA Report tendered by the defendant showed that he resigned as Director of Maintenance.

 

8.      Learned counsel submitted that resignation from an employment is by giving the required length of notice. He relied on the following cases; Zubairu & Anor v. Mohammed [2009]LPELR-5124(CA)6, Paras A-B; INEC & Ors v. Orji [2009]LPELR-4320(CA)17, Para E and WAEC v. Oshionebo [2006]LPELR-7739(CA)12, Paras C-E. He submitted that failure of the defendant to give the stipulated 60 days’ notice of his intention to terminate amounts to a breach of the contract between parties. He cited in support the following cases; Ejimbe v. FBN PLc [2013]LPELR-20385(CA)21,Para B and Foluso v. Enterprise Bank Plc [2019]LPELR-48030(CA)45, Para G. He submitted that the Claimant has successfully established that failure of the defendant to perform his duties on the 21st day of May, 2019 was the direct and contributory cause to grounding of the Claimant’s airline operations for 28 days and it is also in evidence that it lost goodwill and clientele during this period.

 

9.      Learned counsel submitted that the defence put forward by the defendant is that the employment relationship lapsed since 9th day of April, 2019 and was not mutually renewed and as such there was no valid subsisting contract and that he was not employed as Director of Maintenance but as Aircraft Maintenance Engineer. He submitted that none of the paragraphs of the statement of defence wherein issues were joined with the Claimant on the above facts denied the averments in statement of facts. He submitted that those paragraphs that is paragraphs 6-12,24,33 and 37 are all negative traverse which is not a sufficient defence and are deemed to have admitted the averments of the Claimant in paragraphs 7,9,14-21 of the statement of facts. He relied on the case of UBN Plc v. Chimaeze [2014]LPELR-22699@48, Paras A-D. As such none of these paragraphs has defeated the Claimant’s averments. He cited in support the case of Longe v. First Bank Plc [2010]LPELR-1793(SC)13-14, Paras D-A; 23, Paras A-D.

 

10. Learned counsel stressed that even defendant admitted remaining a staff of the Claimant after 9th April, 2019 in paragraphs of his statement of defence but at the same time is saying that the relationship between parties has lapsed since 9th April, 2019. He submitted that a party cannot speak from both sides of the mouth at the same time. He cited in support; Oladapo v. Bank of the North Ltd [2000]LPELR-5284(CA)25-26, Paras F-A; Out & Anor v. Ani [2013]LPELR-21405(CA)112, Para G; SCOA  Nig Plc v. Taan & Ors [2018]LPELR-44545 (CA)55-56, Paras A-E. He submitted that the defendant by his act of not complaining after receiving the mail of renewal and continuing his work for the claimant is estopped by his conduct from claiming that the agreement was not renewed. He relied on Section 151 of the Evidence Act, 2011 and also the following cases; Ude v. Nwara & Anor [1993] LPELR-3289(SC)27-28, Paras A-A; A.G. Nassarawa State v. A.G. Plateau State [2012] LPELR9730 (SC)59-60, Paras G-A. Counsel queried that if there was not contract beyond 9th April, 2019 why was the defendant asking for payment of salaries for May-August 2019.

 

11. It is the further submission of learned counsel that the defendant merely made a heavy weather of his designation in Exhibit CA1 because same has no correlation with the subject matter of this action which is breach of contract. He submitted that by the contents of the agreement that is Exhibit CA3, it is clearly stated in clause 13.0 that the agreement supersedes any other agreement or communication in the employment letter. He submitted further while relying on the case of Union Bank v. Ozigi [1994] LPELR-3389(SC)16, Paras A-B that here a written agreement exists evidence of preliminary oral evidence cannot be introduced. He urged the Court to hold that the designation of the defendant at the point of employment is not a defence to his resignation without prior notice.

 

12. On the 24th day of June, 2021, learned counsel on behalf of the defendant/counterclaimant filed his final written address which was adopted on the 19th day of October, 2022. Learned counsel therein formulated three issues for determination of the Court thus;

1.      In what capacity was the Defendant employed by the Claimant and for how long?

2.       Did the contract of employment between parties expire on 9th day of April 2019 as agreed and was same renewed “Mutually” as per contract?

3.      Whether the Defendant/Counterclaimant having rendered services to the Claimant is not entitled to be paid for such services rendered.

 

13. On issue one above, learned counsel submitted that where the business between parties has been reduced to writing, the business of the Court is to give effect to what is contained in the contract. He relied on the case of Katto v. CBN [1999]6 NWLR (Pt 607)390@405. However, there must be a valid contract before there can be an interpretation of same and as such the Court must satisfy itself that there is first a valid contract to be interpreted. Relying on the case of Olaja v. Gov. Benue State [2016]3 NWLR (Pt 1499)217@242-243 he submitted that a valid contract must contain; i. an offer; ii. Acceptance; iii consideration; iv. Intention to create legal relationship and; v. capacity to enter into a legal agreement. He submitted that the instant case an offer was made to defendant and he clearly accepted the offer of the position of Aircraft Maintenance Engineer and also in the subsequent contract executed by parties, it was equally stated that defendant was employed as Aircraft Maintenance Engineer. He submitted that where terms used in an agreement are clear and unambiguous they are given their clear and ordinary meaning. He relied on the following cases; Oilserve Ltd v. A.I &Co Nig. Ltd [2008]2 NWLR (Pt 1070)191 @204; JFS Ind. Ltd v. Brawal Line Ltd [2010]18 NWLR (Pt 1225)495@543. Counsel went on that by the contents of the offer letter and the agreement designated Exhibits CA1 and CA3 respectively by the Claimant, the defendant’s employment was only as Aircraft Maintenance Engineer.

 

14. Learned counsel submitted that by the clear contents of Exhibit CA3 the agreement was for initial period of 12 months subject to renewal by mutual consent. He submitted that Claimant must be able to show by evidence that the contract was actually renewed as he who asserts must prove. He relied on Ibuluya v. Dikibo [2010]18 NWLR (Pt 1225)627. He submitted that the words ‘mutual’ and ‘mutually’ have been defined in the Blacks’ Law Dictionary Sixth Edition at pages 1020 and 1021 respectively. He submitted that from the definitions it is clear individualism is expunged as such none of the parties can individually renew the contract. It must be shown that the parties acted in unison. He submitted that the E-mail of the Claimant to the defendant for renewal only suggests unilateral renewal which has no place in the agreement between parties. He submitted that the onus is on the claimant to prove due compliance with the paragraph of the contract on renewal. He relied on Oguejifor v. Siemens Ltd [2008]2 NWLR (Pt 10710)283@300; Olodo v. Josiah [2010] 18 NWLR ( Pt 1225)545@673. He argued that the Claimant who has the onus to prove that the contract was renewed mutually failed to prove same. He submitted that parties have always dealt with themselves in writing and as such the acceptance of the renewal should have been reduced to writing to show clear acceptance of renewal. He relied on the case of BPS Constar & Engr Co Ltd v. FCDA [2017] 10 NWLR (Pt 1572)1@48-49. He submitted that there is no evidence that the condition precedent of mutuality was met before the renewal and as such there is no renewal. He relied on the case of Best Nig Ltd v. B.H. Nig. Ltd [2011]5 NWLR (Pt 1239)95@126-127. He submitted that even CERPAC Card shows that the defendant’s CERPAC card was renewed as an Engineer and not as Director of Maintenance. Learned counsel submitted that the Civil Aviation Act makes provisions for Aircraft Maintenance Engineer and Director of Maintenance. He relied on paragraph 2.6, 2.7 of the Civil Aviation Regulations. He submitted that from those provisions the position of Director of Maintenance and Aircraft Maintenance Engineer.

 

15. On issue two, counsel submitted that documents speak for themselves and the Court cannot import to it what is not contained in it. He relied on the following cases; Eco Bank Plc v. Kunle [2019]10 NWLR (Pt 1679)90@109-110; Enilolobo v. NPDC Ltd [2019] 18 NWLR (Pt 1703)168@197. He submitted that from the wordings of the resignation letter it cannot be said that the defendant resigned with immediate effect. He submitted that the defendant merely made a counter offer to the Claimant that he would like to retain his position as CRS Engineer. He submitted that from the pleadings claimant rather than resign with immediate effect continued to work for the defendant till the 30th day of June 2019. He added further that the Claimant having authenticated that the defendant attended the AOC renewal interview or meeting and that he performed his functions as seen in the log books are estopped from denying same by maintaining that the defendant had resigned. He relied on the case of NBC Plc v. Suleman [2019]18 NWLR (Pt 1703)80@76.

 

16. Learned counsel submitted that the evidence before the Court show that the problems inflicted on the Claimant were self-inflicted going by the contents of the findings and recommendations made by the NCAA. He submitted that these findings were indictment following the ineptitude of the Claimant and as such one cannot say the defendant was responsible. He submitted further that there is even no evidence that the claimant suffered any damage as a result of the resignation of the defendant. Counsel maintained that the losses claimed by the claimant are in the nature of special damages that must be specifically pleaded and strictly proved. He relied on; Eneh v. Ozor [2016]16 NWLR (Pt 1538) 219@235-236; Onyiorah v. Onyiorah [2019]15 NWLR (Pt 1695)227@240. He submitted that the claimant did not plead or prove how he came by the quantum of $336,000. He continued that the letter from Elin Group Ltd relied on by Claimant is of no help. He submitted that there was no proof that Claimant made $12,000 per day. He submitted that in breach of contract damages are warded based on the principle of restitution in integrum. He relied on GE Intl Operation (Nig) Ltd v. Q-Oil & Gas Services Ltd [2016]304@331. He submitted that there is no place for general damages in breach of contract of employment that the only remedy available is how much the offended party would have gotten over the period of notice. He relied on the Sea Trucks (Nig) Ltd 6 NWLR (Pt 607)514@537. He submitted that as it is with the employee so it is with the employer.

 

17. Learned counsel submitted that documentary evidence is a hanger on which to access oral evidence. He relied on the following case; NBA v. Afie [2016]10 NWLR (Pt 1520)394@417; Egharevba v. Osagie [2009]18 NWLR (Pt 1173)299@327; Jolasun v. Bamgboye [2010]18 NWLR (Pt 1225)285@318-319. He urged the Court to consider the signature of Akagwu Micahel Arome in his written statements with the signature on the document pleaded in paragraph 29 of the statement of defence. He submitted that the Claimant in its reply did not deny knowing the Capt Msheila that signed defendant’s log books neither did it controvert the veracity. He submitted that this suit is simply meant to frighten defendant from demanding his unpaid arrears.

 

18. On the counter-claim, counsel submitted that counterclaim is a separate action from the main action. He relied on Rilwan & Partners v. Skye Bank Plc [2015]1 NWLR (Pt 1441)437@459; Ajayi v. Shodeke [2006]13 NWLR (Pt 996)34@52. He submitted that the Claimant/defendant to counterclaim admitted bringing the defendant back from Greece and allowed him to resume work in January, 2019. He submitted that facts admitted needs no further proof. He relied on National Revenue Mobilization Allocation and Fiscal Commission & 2 ors v. Ajibola Johnson [2019]2 NWLR (Pt 1656)247@261. Thus, the defendant/counterclaimant does not need to prove that he was rendering services to the Claimant on the terms of the old contract even though same was not renewed. He submitted that the contention of the Claimant/defendant to counterclaim that the counterclaimant was working for one Baker Aviation Maintenance LLC is within its sole knowledge and as such has the onus to prove same. He relied on Awusa v. Nigerian Army [2018]12 NWLR (Pt 1634)421@458; Capl v. Vital Inv. Ltd [2006] 6 NWLR (Pt 976)220@241. He submitted that the defendant to counterclaim failed to prove this assertion and as such has not displaced the onus placed on it by the law. He relied on the case of NBA v. Nyoro [2019]6 NWLR (Pt 1669)572@588. He submitted that there is proof that defendant/counterclaimant worked between October-December, 2018 in USA and there is also no dispute as to the defendant working between January –May 2019. He submitted that the onus is on the claimant to prove that it paid defendant during those periods. He relied on the case of NDIC v. RABO Farms Ltd & Anor [2018]15 NWLR (Pt 1643)482@506; Ifeanyichukwu T.I. v. Ltd v. O.C.B Ltd [2015]17 NWLR (Pt 1487)1@27 &37-38. He submitted that the defendant/counterclaimant having proven that he worked for the defendant to counterclaim, the onus is on the defendant to counterclaim to show that it paid the counterclaimant for those services rendered.

 

19. On the 11th day of February 2022, learned counsel on behalf of the Claimant/defendant to counterclaim filed his Reply address though belatedly but same was regularized and adopted on the 19th day of October, 2022. He submitted that the submission of learned counsel on behalf of the defendant that the defendant was still in Exhibit CA3 said to have been employed as Aircraft Maintenance Engineer is untrue as what is not contained in a document cannot be read into it. He cited in support AG Ferrerro & Co Ltd v. Henkel Chemical Nig Ltd [2011]5-7 (Pt 1)MJSC 55 @69, Paras C-G  and Enilolobo v. N.P.D.C. Ltd, supra. He submitted that the defendant himself in Exhibit C8A which he authored acknowledged that he was Director of Maintenance and as such bound by it because documentary evidence is the yardstick to access oral evidence. He relied on the case of Dawodu & Ors v. Majolagbe [2000]LPELR-9898(CA)15-16, Paras D-A; Aiki v. Idowu [2006]9 NWLR (Pt 984)50@65, Paras A-C.

 

20. Learned counsel submitted that the defendant’s submission that Exhibit CA 4 was at best an offer which must be shown to have been accepted is a misconception which stems from the blur between the extension of an already existing contract and the formation of a new one. He submitted that such argument amounts to rewriting the agreement made by parties by subjecting the process of renewal to a renegotiation. He cited in support the case of Uwah & Anor v. Akpabio & Anor [2014]Vl 2 MJSC (Pt II)108@127, Para C-E. He submitted that the defendant’s conduct shows mutuality. He submitted further that it is incongruous for the defendant to benefit from the renewal and then turn around to contend that it was not mutual. He cited in support the following cases;  A.G. Rivers State v. A.G. Akwa Ibom State [2011]3 MJSC 1@30, Paras D-F; MTN (Nig) Comm Ltd v. Corporate Comm Inv Ltd [2019]9 NWLR (Pt 1678)427@458, Paras E-F; Dragtanos Const. (Nig) Ltd v. F.M.V. Ltd [2011 16 NWLR (Pt  1273)308@382, Paras C-D.

 

21. Learned counsel submitted that exhibit CA8 that is the letter of resignation is the best evidence of itself. He relied on Egharevba v. Osagie [2009] LPELR-1044@34-35, Paras G-B. He submitted that the defendant is bound by his own admission in paragraph 4.3.1 in the final written address that he refused to work as Director of Maintenance. He relied on Section 20 of the Evidence Act and the case of Eigbe v NUT [2008]5 NWLR (Pt 1081)604@632, Paras D-F. He submitted that the onus of proving that he worked in his capacity as Director of Maintenance from 21st May, 2019 is on the defendant. He relied on the case of Omisore & Ors v. Aregbesola & Ors [2015]LPELR-24803(SC)53-54, Paras D-F.

 

22. Learned Counsel submitted that the submission of the defendant in paragraph 4.64-4.70 urging the Court to compare the signature of Mr Arome on the statements on oath with a purported signature on a document which is not before the Court is based on sheer speculation. He urged the Court to invoke the provisions of Section 167d of the Evidence Act against the defendant for not annexing the alleged document referred to. He urged the Court to discountenance same as it is based on sheer speculation. He relied on Ekpeto & Ors v. Wanogho & Ors [2004LPELR-1094(SC)16, Paras B-D; Oladele & Ors v. Oba Aromolaran II & Ors [1996]LPELR-2546 @68, Paras B-C.

 

23. Claimant in response to the address on the counterclaim submitted that the submission in the address of the counterclaimant as regard the counterclaim that the claimant brought the counterclaimant from Greece is misconceived as there is no such averment in the pleading of the Claimant. He submitted that the claimant could not have admitted what does not exist of facts that is not derived from the pleadings. He relied on the case of Omisore v. Aregbesola, supra.

 

24. Learned counsel submitted that the onus of proof of the counterclaim is on the counterclaimant and the submission of counsel on his behalf that the claimant was not able to prove that the counterclaimant abandoned the Aircraft to work for one Baker Aviation Maintenance LLC amounts to turning the law as the claimant/defendant to counterclaimant does not bear the onus to establish its defence. He submitted that burden of proof will not shift where claimant fails to establish his case. He relied on Section 133(1) of the Evidence Act and the case. He submitted equally that the law is trite that the counterclaimant must succeed on the strength of his own case. He relied on Adeyeri v. Okobi & Ors [1997]6 NWLR (Pt 510)1@20, Paras C-D. He submitted further that all the counterclaimant wants the Court to do by his counterclaim is to speculate. He submitted that there is nothing before the Court to substantiate the counterclaim beyond the arguments proffered in the counterclaimant’s final address and such address can not fill the space of evidence. He cited in support the case of Okwejiminor v. Gbakeji [2008]LPELR-2537(SC)58, Para C.

 

25. I have carefully perused all the processes filed in this case, including the documents frontloaded as well as the final written addresses of parties, I am of the humble view that the issues framed by both parties particularly that of the defendant as rephrased and captured hereunder would best determine the contention of parties in this suit viz;

1.      Whether defendant was employed as Director of Maintenance or as mere Aircraft Maintenance Engineer.

2.      Whether there is still a valid contract of employment between parties?

3.      Whether the Claimant is entitled to the reliefs sought?

4.      Whether the counter-claimant is entitled to the reliefs sought in the counterclaim?

 

26. With regards to issue one, Claimant in this case maintained that the defendant was offered employment as the Head of Engineering Department which he accepted and that culminated in the execution of a formal contract of employment between parties wherein the defendant was employed as Head of Maintenance (or Director of Maintenance) which is the preferred designation by the Nigerian Civil Aviation Authority for the post of Head of Engineering. The defendant on his part contended that he was only employed as Head of Engineering Department and he was never employed or accepted to be employed as Director of Maintenance as is explicitly stated in his letter of offer of employment.

 

27. Let me at the outset address the contention of the learned counsel for claimant in paragraphs 4.4.2 and 4.4.3 of his final written address that paragraphs 6,7,8,9,10,11,12 ,24 33 and 37 of the statement of defence are not sufficient denial of the paragraphs in respect of which they purport to have joined issues on and as such are not sufficient traverse which will amount to an admission of the relevant paragraphs of the statement of facts. I have read the said paragraphs and I must say that whether or not a party can be said to have admitted certain facts in the pleadings of the other party depends on the consideration of the pleadings of parties as a whole. See the case of Union Bank v. Gap Consultants Ltd [2017] LPELR-45351(CA)1@45, Para A; Okoye & Ors v. Nwankwo [2014] LPELR-23172(SC)1@0-21, Para E; Buhari v. Obasanjo [2005]13 NWLR (Pt. 941)1 and; Ugochukwu v. Co-op Commerce Bank Ltd. [1996] 6 NWLR (Pt. 456) 524. I have read the whole of the statement of facts and statement of defence of the defendant and it is clear from it that the defendant is not admitting the facts contained in paragraphs 7,8,9,10,11,12,13,14-21 of the Claimant’s statement of facts. Besides, the defendant in this case used the aid of the General traverse wherein he denied paragraphs 3, 4, 6, 8-13, 15,16,18,20-29,31-38 of the statement of facts. The law is now firmly established that the denial of a particular paragraph in a statement of defence by means of a general traverse has the same effect as a specific denial of it. See; Amakaeze v. Nze Pet. Co (Nig) Ltd [2021]1 NWLR (Pt 1756)107; Dairo v. Regd Trustees, T.A.D., Lagos [2018]1 NWLR (Pt 15999)62.

 

28. From the facts of this case, the contract between parties is based on several documents including the letter of offer of employment, the letter of acceptance and the formal contract of employment executed by both parties. The law is on a firma terra that where a contract is made up of several documents, the documents must be read together. See the following cases; Wulangs v. CBN [2021] 16 NWLR (Pt 1802)195@267, Paras D-F(CA); FGN v. Interstella Comms Ltd [2015] 9 NWLR (Pt 1463)1@ 41, Paras D-E  (CA) and ;CBN v. Igwillo [2007] 14 NWLR (Pt 1054)393@,433, Paras A-B, Paras D-E(SC). In the instant case, I will have to consider the letter of offer of employment, the letter of acceptance and the formal contract of employment altogether. The law is settled that documents legally speaking speak for themselves and should require no additional extrinsic aids to be understood and/or interpreted. See Section 128 of the Evidence Act, 2011. See also the following cases; Owoniboys Technical Services Ltd v. UBN Ltd [2003] 15 NWLR (Pt.844) 545 at 585-587; Union Bank of Nigeria Ltd &Anor v. Nwaokolo [1995] 6 NWLR (Pt. 400) 127. The letter of offer of employment reads thus;

                        OFFER OF EMPLOYMENT

Following your recent application for employment and the subsequent telephone interview, we wish to inform you that the management has approved your appointment as an Aircraft Maintenance Engineer as well as Head of Engineering Department with effect from 10th April 2018.

This employment shall be for an initial period of (One) 1 year. It is however renewable as stated in your employment contract.

Upon your acceptance of this offer, you are also required to complete the acceptance form attached to this letter and forward it to the Human Resources Manager immediately.

Your total monthly salary shall be Seven Thousand United States Dollars Only ($7,000.00), while other conditions of service will be as contained in the employment contract which you will be expected to sign before resumption of duty.

May I on behalf of the Board of Directors, management and staff congratulate you employment, while we all look forward to a very professional team spirited service from you.

29. The above captured content of the letter of offer of employment is clear and requires no special aid to understand. Also, the letter of acceptance states thus;

                                    ACCEPTANCE OF EMPLOYMENT

I STAVROS NIKOLA THEODOROPOULOS hereby accept the offer of Employment as AIRCRAFT MAINTENANCE ENGINEER with West Link Airlines Nig Ltd with effect from 10th OF APRIL 2018.

I promise to abide by the terms and conditions of my employment as contained in the executed Employment Contract  

It is clear from the above letters that the formal contract of employment was alluded to. It is only expedient that the Court considers the said formal contract of employment which was the later in time. However, it is important to first point out that I do not lose sight of the defendant’s averment vide paragraph 6 of the statement of defence wherein he stated thus; “Paragraph 7 is denied. The Claimant employed the Defendant as an Aircraft Maintenance Engineer to Head its Engineering Department. The Defendant accepted this employment and indicated so in writing. According to the Defendant when he arrived Nigeria to sign the formal agreement, he saw to his chagrin, that the Claimant had fundamentally changed the terms of his employment. He was now told that he was just no longer an Aircraft Maintenance Engineer but was now to be the Director of Maintenance. The position of Director of Maintenance carried with it additional responsibilities and he was to sign certain forms and ensure all routine but fundamental service requirements and meet various maintenance schedules and requirement.” In fact, he had averred further in paragraphs 8 and 9 of the statement of defence that he was constrained to accept the said terms as a Director of Maintenance and execute the contract without any corresponding increase in salary. The Claimant in response vide paragraphs 3 and 4 of the Reply responded that the Regulatory body that is the Nigerian Civil Aviation NCAA prefers the designation Director of Maintenance to Aircraft Maintenance Engineer/Head of Engineering or Head of Maintenance and the scope of duties is the same for both designation as it is only the nomenclature that changed. The Claimant further denied that the defendant only became aware of the alleged change when he got to Nigeria.  Let me first say that from the contents of the said formal agreement, the designation Director of Maintenance was clearly stated as the designation given by the NCAA. Be that as it may, it will, in my view, be very fraudulent for any party who executed an agreement to subsequently turn around to impugn any of the terms of the agreement which he had agreed to. The law is clear beyond peradventure that an agreement once entered into is binding on both parties and none of them can resile or depart from it. See the following cases; Fidelity Bank Plc v. M.C. Ind. Ltd [2022] 7 NWLR (Pt 1829) 251@373, Paras F-G; Forte Oil v. Ogungbemile [2021] LPELR-52919(CA)1@41-42, Para E and Anyaegbunam v. Osaka & Ors [2000] LPELR-508(SC)1@19, Paras C-C. The defendant in this case has not denied executing the agreement even after seeing that one of the clauses therein is to the effect that the designation of the NCAA for the post, he is occupying is the Director of Maintenance. Thus, by going ahead to execute same even after seeing clause 2.0 in the agreement is a clear indication that he intends to be bound by same. Thus, he cannot validly be claiming in this suit now that he was never employed as Director of Maintenance.

30. It is equally important for me to reiterate here the settled position of the law that the doctrine of incorporation by reference is one that is frequently applied in the construction of documents where from the documents or document produced by parties, it is clear that some other evidence must have been in contemplation of the parties. In such a case, the document put forward compels the Court to look beyond and ascertain the other evidence which by necessary implication, the parties must have had in their minds at the time of the contract. See; Kashamu v. UBN Plc [2020]15 NWLR (Pt 1746)90@116, Paras A-E; Golden Construction Company v. Stateco Nig. Ltd & Anor [2013] LPELR-22832(CA)1@22, Para A; Iwuoha v. NRC [1997] LPELR-1570(SC)1@16, Para A. In the instant case the letter of offer of employment which stated that Claimant was offered employment as Aircraft Maintenance Engineer as well as Head of Engineering Department and the letter of Acceptance of employment wherein Claimant accepted offer of employment as AIRCRAFT MAINTENANCE ENGINEER wherein he alluded to the formal contract of employment as captured above. The formal contract of employment is instructive and clause 2.0 states thus;

SCOPE. Employee is employed by WLA to serve as Head of Maintenance (Or Director of Maintenance as designated by NCAA) as well as Mechanic on all aircraft being operated or in the future to be operated or managed by WLA.

31. In the instant case, the contract of employment which was alluded to in the offer and acceptance letter of the defendant and the evidence given thereon point unequivocally to the fact that defendant’s scope of employment is as Head of Maintenance (Or Director of Maintenance which is the designation given by the Nigerian Civil Aviation Authority to anybody holding such position). The reliance of the defendant on the offer and acceptance letters which designated him as Aircraft Maintenance Engineer as well as Head of Engineering Department holds no water for two reasons. One, clause 13.0 clearly provides that the agreement supersedes all prior agreements, oral written and all communication between parties relating to the subject matter between parties. Secondly, because going by the decision of the Supreme Court in the case of Union Bank Plc v. Ozigi, supra, the rule on parole evidence also extends to extrinsic evidence in writing including drafts of agreement, preliminary agreement and letters relating to previous negotiation and as such, no evidence is to be admitted of what passed between parties prior to the execution of a written agreement. It is thus clear that defendant though offered employment as Aircraft Maintenance Engineer as well as Head of Engineering which offer was accepted the scope of his employment is to serve as Head of Maintenance which is often designated as the Director of Maintenance by Nigerian Civil Aviation Authority and that supersedes the content of the Offer letter.

 

32. I am not oblivious to the submission of learned silk on behalf of defendant wherein in paragraphs 4.29-4.31 of the final written address he submitted that the position of the Aircraft Maintenance Engineer going by the Nigerian Civil Aviation Regulations is different from that of the Director of Maintenance while relying on Part 9 of the Nigerian Civil Aviation Regulations. The fact needs to be appreciated that the defendant going by the offer letter was not merely offered employment as an Aircraft Maintenance Engineer alone but also as the Head of Engineering. The introductory paragraph of the offer letter on page 20 of the record is instructive and reads thus; Following your recent application for employment and subsequent telephone interview, we wish to inform you that the management has approved your appointment as Aircraft Maintenance Engineer as well as Head of Engineering Department with effect from 10th April, 2018…” The above fact was equally contained in paragraph 3 of the statement of facts which was admitted by the defendant and equally reiterated by the defendant in paragraph 3 of his statement of defence as follows; Paragraph 3 is admitted. Defendant states that he was employed as an Aircraft Maintenance Engineer and Head of Engineering Department with effect from 10th April, 2018 for one year which means he ceased to be on their payroll from 9th day of April, 2019” The formal employment agreement as captured above clearly states that the defendant’s scope of duty as Aircraft maintenance Engineer and Head of Engineering includes serving as the Head of Maintenance which is designated as Director of Maintenance by the Regulatory Agency NCAA. The defendant no doubt by that clause in the agreement by virtue of his employment as Aircraft Maintenance Engineer cum Head of Engineering was to serve as the Head of Maintenance which is designated as the Director of Maintenance by the NCAA.  Thus, it is within the contemplation of parties that defendant by the said employment would be regarded and required to serve as Head of Maintenance/ Director of Maintenance as designated by the Nigerian Civil Aviation which is the Regulatory Agency in the Aviation Industry.

  

33. It is expedient at this stage to consider the provisions of the requisite Regulations at the material time as regard the position of Director of Maintenance. This Court has perused the Nigerian Civil Aviation Regulation, 2009 which was the extant and effective Regulation at the relevant time of the agreement between parties in 2018 because the 2015 Regulations only became effective on 16/09/2019 after the agreement between parties. By the provisions of Regulation 9.2.2.2 (b) of Part 9 of the 2009 Regulations the holder of an Air Operator Certificate like the Claimant when conducting commercial air transport operations shall have the following qualified personnel; (i). Director of operations; (ii). Chief Pilot; (iii). Director of Safety; (iv). Director of Maintenance; (v). Chief Inspector and; (vi). Quality Manager. Regulations 9.3.2.1.5 provides for the license requirement of a Aircraft Maintenance Engineer. Part 9-Implementing Standards particularly IS 9.2.2.2. (f) provides that one of the minimum qualifications of a Director of Maintenance is that he must have an Aircraft Maintenance Engineer license with airframe and power plant rating. It is thus, without doubt that whoever that will be the Director of Maintenance should first be a licensed Aircraft Maintenance Engineer. In fact, IS 9.2.2.2 (h) provides further that an AOC holder like the Claimant may employ a person who does not meet the appropriate qualification or experience if the Authority (i.e) issues an exemption finding that the person has comparable experience and can effectively perform the required management functions. The defendant herein who knowingly executed the formal agreement which required him to serve as Head of Maintenance (designated as Director of Maintenance by the NCAA) did not in his pleadings contend that he was not a licensed Aircraft Maintenance Engineer with the requisite experience which would mean that he would have to be given an exemption by the NCAA before he could act as such.  In my view, it cannot be validly contended that an Aircraft Maintenance Engineer cannot be a Director of Maintenance because the first basic qualification of a Director of Maintenance is to be a licensed Aircraft Maintenance Engineer. In fact, there is nothing in the whole gamut of the 2009 Regulations prohibiting such. The only limitation to serving in a management position for an AOC holder is contained in Part 9-Implementing Standards   particularly IS 9.2.2.2.(c) which provides thus; “A person serving in a required management position for an AOC holder may not serve in a similar position for any other AOC holder, unless exemption is issued by the Authority”. The position of the Director of Maintenance is one of the required Management positions in a holder of AOC. By the above provisions the only impediment is that a person serving in such management position in an AOC may not serve in a similar position in another AOC unless exempted by the Authority. Thus, there is no provision preventing someone from holding the position of the Aircraft Maintenance Engineer and the position of the Head/Director of Maintenance within the same holder of an AOC. If I may ask, what is the difference between a director and a Head of a department? Obviously, a director as the head of a department manages the affairs of that department and to that extent, both words can be used interchangeably. It is in the light of the above that I discountenance the submission of learned counsel on behalf of defendant in paragraphs 4.29-4.31 of the final written address. The defendant himself by executing the said agreement even after reading its content which requires him to act as Head of Maintenance/Director of Maintenance cannot at this stage be contesting his employment as Director of Maintenance. He had the opportunity to either refuse to execute the agreement or insist on changing the designation before executing same but he went ahead and executed the agreement which binds him and thus too late in the day to take a detour from same. Thus, it cannot be said that defendant was not employed as Director of Maintenance. It is in the light of the above that I resolve question 1 in favour of the Claimant.

 

34. On issue two, it is the Claimant’s contention that there was a valid contract of employment between parties when the defendant resigned his employment. The defendant on his part maintained that there was no longer a valid contract of employment between parties as at when he resigned his employment because the contract has come to an end on the 9th day April, 2019. From the facts and circumstances of this case and the evidence on record, it is clear that the employment contract between parties was for 12 months renewable for a further term of 12 months upon mutual consent of the parties. Thus, parties are ad idem that the defendant was employed by Claimant under a contract of employment for a 12 month (one year period) which was to commence 10th April 2018 and lapse on 9th April, 2019 subject to renewal for a further 12 months period by mutual consent of parties. Parties are equally ad idem that the defendant resigned his employment on the 20th day of April, 2019. However, the point of contention between parties is whether or not there was still a valid contract between parties as at the time the defendant resigned his employment. According to Claimant, although the initial contract had lapsed on the 9th day of April, 2019, same was renewed by the parties and the Claimant relied on an E-Mail correspondence sent to the defendant by the Claimant. The defendant vide its statement of defence has maintained that the contract between parties was not renewed. From the facts and circumstances of this case, it clear that even after the expiration of the initial contract executed by parties, the Claimant sent an E-mail correspondence to defendant stating that his contract is renewed. Clause 4.1 in the contract agreement is instructive and states thus concerning renewal; “..This agreement, if not terminated earlier by either party, shall upon completion of 12 months, be renewed mutually for further 12 months, after which the agreement shall be renegotiated and a new Agreement shall be signed for a further period to be mutually determined between WLA and the Employee...” To my mind, the above is to the effect that the agreement is subject to a renewal at completion by mutual agreement of parties for a further period of 12 months and after this further 12 months if parties again wish to continue, the agreement shall be renegotiated and a new agreement shall be made for any further period agreed by the parties. Thus, there will only be a need for renegotiating and drafting a new agreement where parties subsequent to the first renewal for 12 months agree for a further period to be mutually determined by them. As such, where it is just the 12 months renewal, there is no need for a new agreement or renegotiating the terms. I find from the contract agreement that the 12 months renewal will continue on same terms as the initial expired 12 months.

 

35. I am mindful of the submission of learned silk on behalf of the defendant in the final written address that the said E-mail correspondence cannot satisfy the provisions of clause 4.1 in the agreement which provides for mutual consent for renewal as the E-mail only shows a unilateral renewal. I agree with the position of learned Senior counsel in paragraphs 4.15, 4.16 and 4.17 of the final written address that the word ‘mutual’ means that both parties must consent to the renewal. However, this Court takes cognizance of the fact that after the Claimant unilaterally sent the E-mail to the defendant, the defendant did not object to said renewal communicated to him. In fact, the evidence on record suggests that there were series of communication and dealings between parties after the said E-mail was sent in furtherance of the said renewal.

 

36. Let me at this stage address the submission of learned defence counsel in paragraph 4.26 of the final written address. It is true that by the content of the letter dated 8th April, 2019, the NCAA stated that Claimant’s letter was dated June 20th, 2018 but received by the Authority on 25th March, 2019. The said letter at page 32 of the Record further states that the Claimant is required to present the above mentioned for interview during the AOC renewal process. It is worthy of note that the letter of invitation inviting the nominated post holders one of which is the defendant for interview with the NCAA is at page 33 of the Records and is dated 8th May, 2019. The interview therein was scheduled to take place on the 14th of May, 2019. The initial contract has expired since the 9th day of April, 2019. The defendant himself by his pleadings admitted that he went for the interview on the said date, id est 14th of May, 2019. In fact, letter dated 15th May, 2019 shows that the defendant passed the interview and was accepted by the NCAA as the Director of Maintenance. These series of acts took place after the expiration of the initial 12 months period from 10th April 2018 to 9th April, 2019. In fact, the Claimant vide paragraph 14 of the Reply to Statement of defence and defence to counterclaim averred that it was on account of the renewal that it paid for defendant’s Combined Expatriate Residence Permit and Alien Scheme (CERPAC) Temporary Card on 18th April and same was issued on the 24th day of April 2019. This to me is to enable defendant enter back into the country and continue with his contract for another 12 months. I have perused the said CERPAC card which is on page 30 of the record and it is clear therefrom that defendant’s Combined Expatriate Residence Permit and Alien Scheme Temporary Card (CERPAC) was paid for on 18th April, 2019 and same was issued on the 24th day of April 2019 clearly after the expiration of the initial 12 months period which presumably was why he was able to enter into Nigeria and was able to go for the interview at the NCAA on the 14th day of May, 2019 for the post of Director of Maintenance. All these acts to my mind show that the defendant had condoned such unilateral renewal done by the Claimant and gave his implied consent. If not, why did the defendant use the CERPAC processed by the Claimant and also attended the interview scheduled for him at the NCAA. If he did not want a renewal of the agreement, he would not have attended the interview scheduled for him. It is not open to him at this stage to complain that the renewal was not mutual, because his action says otherwise.

 

37. In the case of Vital Investment Limited v. Chemical and Allied Products Plc [2022] NWLR (Pt.1820)205@ 244-245, Paras G-B, the Supreme Court held that where a party impliedly adopted an agreement by its subsequent conduct in dealing with the other party, the parties will be bound by the terms of the agreement as if they executed it. See also; Adelebare v. Niger Motors [1974] LPELR-112(SC)1@10-11, Para F. In the instant case, the defendant impliedly consented to renewal of the contract between parties by his conduct when first, he failed to raise an eye brow to the E-mail of the Claimant to him renewing the contract and even agreed to go on with the Claimant by accepting to go for the interview at the Nigerian Civil Aviation Authority for the position of Director of Maintenance and his subsequent overt acts. By the provisions of Section 169 of the Evidence Act, 2011 when a person by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act on such belief neither he nor his representatives in interest shall be allowed in any proceedings between himself and such person or such person’s representatives in interest to deny the truth of that thing. I am thus, of the considered view that since the Claimant did not raise any eye brow or complain or respond to the E-mail of the Claimant to him renewing the contract and even went ahead to attend an interview for the said position of Director of Maintenance and subsequent overt acts including his resignation of the position over a month later after the expiration of the initial one raised the presumption of a valid renewal of the expired contract and operate as estoppel against any contention that there was no mutuality of renewal of the contract.

 

38. More importantly, the above view is further reinforced by the fact that Claimant himself resigned the appointment as Director Maintenance only on the 20th May, 2019 (which is long after the expiration of the initial contract and the E-mail of the Claimant renewing the contract sent to him).The letter of resignation of Claimant is instructive and reads thus;

                        20th May, 2019

                        The Accountable Manager

                        West Link Airlines Nig Ltd

                        J-K Gadzama Court, Plot 1805,

                        Damaturu Crescent, by Kabo Street,

                        Off Ahmadu Bello Way, Garki II Abuja

 

                        Dear Sir,

                                                            Resignation as Director of Maintenance

I find myself in the unfortunate situation to resign from the nominated position as Director of Maintenance with West Link Airlines Nig Ltd. The reasons we already discussed.

I would like to apologize for the refusal of the nomination. I would like to continue as CRS Engineer, if I am welcome to stay.

Kind Regards.

Stavros Theodoropoulos.

39. Now if the defendant is saying that he stopped being an employee of the Claimant since the 9th day of April, 2019 when the contract expired by effluxion of time, why was there a need for him to resign his appointment on the 20th day of May, 2019? There cannot be a resignation of an appointment that has ceased to exist. The mere fact that Claimant resigned his employment as Director of Maintenance on the 20th day of May, 2019 clearly after the expiration of the initial contract is a pointer to the fact that Claimant himself knew there has been a renewal of the contract between parties. This is because for there to be a resignation there must of course be an appointment that subsist. It is in view of all the above reasoning that I find that the expired contract between parties was mutually renewed. Thus, I find that there was a valid existing contract between parties when the defendant resigned his employment. I equally resolve issue two in favour of the Claimant.

 

40. Now let me address issue three. The Claimant maintains that the defendant breached the terms of the agreement by not giving the 60 days’ notice. The law remains unshaken that in an action arising out of a breach of contract, the claimant must plead the terms of the contract and how the breach occurred. Unless these facts are pleaded therein, the statement of claim/facts will disclose no cause of action for breach of contract. The existence of the contract per se is not the cause of action, it is the breach of the term of the contract that constitutes the cause of action. He must equally show that there was a subsisting and enforceable contract. See the following cases; Dangote Cement v. Ekeson Salins Oil and Gas Ltd & Ors [2019] LPELR-47259(CA)1@49-50, Para C; Azzubuike & Anor v. Government of Enugu State [2013] LPELR-20381(CA)1@47, Para D and; Best (Nig) Ltd v. Blackwood Hodge Nig Ltd & Anor [2011] LPELR-776(SC)1@42, Paras D-D. The Claimant vide several paragraphs of its statement of facts averred that there was a subsisting contract and that the defendant breached the said contract by not giving the required 60 days’ prior notice when tendering his resignation letter as Director of Maintenance in line with a subsisting renewed contract. The Claimant has been able to show that there is a valid and subsisting contract upon the renewal of the expired one. The next hurdle is for the Claimant to succeed by proving the alleged breach.

 

41. From the wordings of clause 4.1 in the formal contract captured above, the agreement between parties is subject to a renewal at completion by mutual agreement of parties for a further 12 months and after this first renewal, the agreement shall be renegotiated and a new agreement shall be made for any further period agreed by the parties as elucidated supra. The effect of the above is that the first renewal for 12 months will still be on the same terms as the expiring/expired initial agreement while a subsequent renewal for a period to be mutually agreed by parties will be on a renegotiated term and a new agreement would be drafted. I have earlier held that agreement between parties was renewed for a further 12 months period. As reasoned supra, this first renewal for a further 12 months is obviously to continue on the same terms contained in the agreement already signed by parties. One of the terms of the agreement is contained in clause 4.3 which is states thus; Either party shall have the right to terminate this Agreement at anytime by giving a sixty (60) days’ written notice to the other party clearly indicating the intention to terminate. The above clause is clear and admits of no ambiguity. In effect it means that before either of the party can terminate the employment contract, there must have been a prior 60 days’ notice. In labour parlance, where it is the employee that chooses to terminate an employment relationship it is often referred to as resignation. The point must be emphasized that where a contract of service gives a party a right to terminate a contract either by giving a particular length of notice or payment of salary in lieu of notice at the time of termination and the party chooses the former the party cannot end the contract without giving the required adequate length of notice. The Court in the case of Adefemi v. Abegunde [2004]15 NWLR (Pt 895)1@28, Para F (CA) held that resignation from employment is by giving of the required length of notice or payment of salary in lieu of notice. The effective date of resignation is the date the letter was received by the employer. See the following cases; Ibrahim v. Abdallah [2019]17 NWLR (Pt 1701)293 (SC); Onukwubiri & Anor v. Ibeakanma & Ors [2014]LPELR-23804(CA)1@88-89, Paras C-C and; Sunday v. Olugbenga [2008]LPELR-4995(CA)1@7-9,Para C. From the facts and circumstances of this case, it is clear that the Claimant received the defendant’s letter of resignation on the same date on the letter which is 20th May, 2019.  Thus, the defendant’s letter of resignation was received on the 20th day of May, 2019 which in effect means that his resignation takes effect on that date. The defendant by that resignation did not give even a day notice not to talk of a 60 day notice. I am mindful of the submission of learned silk on behalf of defendant in paragraphs 4.45-4.50 of the final written address that the defendant’s letter of resignation was not with immediate effect. I must say that documents as stated supra when speaking speak for themselves and not through the evidence of witnesses or counsel to parties as alluded by Senior counsel also. The letter of resignation as captured above did not state that the defendant was giving a 60 days’ notice to the Claimant. In the absence of such express statement in the document, this Court or any other person cannot read to the document what is not contained therein.

 

42. I bear in mind the evidence relied on by defendant to the effect that he worked even after the said resignation that is the log book on pages 124-133 of the record which was equally alluded to in paragraph 4.47-4.49 of the final written address on his behalf showing that he worked till the 30th day of June, 2019.  I have perused the said log books on those pages of the record of the Court. The first log book shows that the defendant carried out pre-departure check and signed same on the 20th day of May, 2019 which was the same day he tendered his resignation letter. Other log books show that the defendant still carried out pre departure check on the Claimant’s Aircraft till the 30th day of June, 2019.  I am mindful of the averments of the Claimant in paragraph 16 of its Reply to statement of defence and Defence to counterclaim which was also contained in the further statement on oath of Akagwu Michael Arome to the effect that the defendant did not work for the Claimant since the 20th day of May, 2019 and at all times he was not under the control or supervision of the Claimant and worked as a free-lance for on the spot earnings and the free-lance work was not subject to any agreement or routine employment. The law is settled that documentary evidence is the best form of evidence and oral evidence will not be allowed to discredit clear contents of a document. See the following cases; F.B.N Plc. v.  M.O. Nwadialu Sons Ltd [2016] 18 NWLR (Pt. 1543) 1@10; and; Udo v. Eshiet [1994] 8 NWLR (Pt. 363) 482. The documentary evidence at pages 124-133 of the Records clearly show that the defendant worked for the Claimant till the 30th day of June, 2019 and there is nothing in those documents to lend credence to the assertion of the Claimant that the work done were on freelance basis. Thus, the evidence of CW Akagwu Michael in paragraph 12 of the further written statement on oath is thus of no evidential value.

 

43. Be that as it may, the pertinent question at this stage is can one say that the mere fact that the defendant worked till the 30th day of June, 2019 satisfied the requirement of 60 days’ notice in the formal agreement. The answer is undoubtedly in the NEGATIVE. The fact that the defendant worked till 30th day of June does not mean that he has given the requisite 60 days’ notice. In fact, the pleadings of the defendant himself of the statement of defence and counterclaim is to the effect that he only worked till 30th June. This fact cannot satisfy the requirement of 60 days’ notice clearly provided for in the formal agreement.  Breach of contract denotes a violation of a contractual obligation, either by failing to perform one's obligation or a term in the contract or by wantonly interfering with another party's performance of the contract.  Thus, a breach of contract may be occasioned by non-performance, or by repudiation or both. See the following cases; KLM Royal Dutch Airlines v. Idehen [2017]LPELR-43575(CA)1@22, Para C and Pan Bisbilder (Nig) Ltd v. F.B.N. (LTD) [2000] LPELR-2900 (SC)1@31-32, Para G. The failure of the defendant to give the required length of notice is in my respectful view a clear breach of the renewed contract. As reasoned supra, a party is bound by an agreement executed by him. The defendant having failed to give the required 60 days’ notice before resigning his employment as the Director of Maintenance is a wanton breach of the agreement between parties. Accordingly, I find that the defendant is liable for breach of contract. Relief I’ thus succeeds.

 

44. Claimant by relief (ii) seeks a declaration that the Defendant’s refusal to participate in the Base inspection by NCAA as the Claimant’s Director of Maintenance, on 21st May 2019, purportedly on grounds of his supposed resignation with effect from 20th May 2019, is malicious, perfidious, null and a breach of the Defendant’s Employment Contract. The Claimant pleaded facts relating to this in paragraphs 13-22 of the statement of facts. I have read thoroughly the statement of defence of the defendant with the finery of a toothcomb and with particular attention on paragraphs 23-33 and I cannot find anywhere the defendant averred that contrary to the assertion of the Claimant he was present and stood in as the Director of Maintenance of the Claimant during the base inspection of the 21st May, 2019. The defendant merely pleaded vide paragraph 29 of the statement of defence thus; The Defendant also attended all necessary meetings with the officials or officers of the Claimant in attendance. On 28th May, 2019 Defendant attended a meeting with Nigeria Civil Aviation Authorities officials. The following attended the meeting which was meant for Air Operation Certifcate (AOC) Renewal debriefing- (1) Femi Abdulahi Quality Manager (2) Stavro Theodoropoulos Director of Maintenance (3) Akagwu Arome Accountable officer (4) Captain Alex Mordi Manager Tech (5) Benjamin Dzer Engineer (6) Garba H. Msheila Engineer. There was nowhere the defendant refuted the claims of the claimant that he did not attend the base inspection to stand in his capacity as the Director of Maintenance. The meeting for the AOC renewal debriefing on the 28th of May, 2019 which the defendant referred to in paragraph 29 of his statement of defence was not the base inspection. From the evidence on record and the pleadings of both parties the base inspection was carried out from 21st -24th May, 2019. In fact, paragraph 26 of the statement of defence is clear as to the scope of duties the defendant carried out for the Claimant on the 21st May 2019. A perusal of the said paragraph particularly sub paragraph 1 of that paragraph will reveal that the only duty the defendant admittedly carried out for the Claimant on the said 21st -24th of May when the base inspection was supposed to take place was only as regards working on the Aircraft. It did not include standing in as the Claimant’s Director of Maintenance during the base inspection. The absence of the defendant in his capacity as the Director of Maintenance (which is one of the Management positions going by the 2009 Regulation) of the Claimant during the base inspection which he was aware was going to take place is a clear breach of the agreement particularly Clause 2.1(a). It is in consequence of the above that I find that the defendant has breached the employment contract. Accordingly, I hold that relief (ii) succeeds.

 

45. Next is relief (iii). The Claimant by this relief seeks an order of this Court directing Defendant to pay to the Claimant, the sum of $14,000 ($7000 Monthly salary for 2 months) being the amount due in lieu of the agreed 60-day prior notice. I have found earlier that the defendant was able to show that he worked for the Claimant till the 30th day of June but such cannot satisfy the requirement of 60 days’ notice in the agreement executed by parties.  In fact, by the pleadings of the defendant, it is clear that he worked as such because he was prevailed upon to do so going by his averments in paragraph 25 of the statement of defence and not because he intended to give the required length of notice to the Claimant. The position of the law is clear that the giving of the agreed or specified period of notice or paying of salary in lieu thereof prevents the termination from being wrongful and actionable. In this instance it is the employee that terminated the employment without giving the required notice. Although the agreement only provided for length of notice and not for salary in lieu of notice, however, the position of the law is settled that where an employee’s employment is terminated by the employer without giving the required notice, his remedy lies in damages and the quantum is how much he would have gotten over the period of notice. Since legal reasoning supports the view that in law as in logic, the converse of a proposition commands the same respect as the proposition itself, I am of the humble view that since an employer where he terminates the employment without giving requisite notice will be made liable to pay an employee damages measurable by how much the employee would have gotten over the period of notice, the employee too should be made liable to pay damages the same way to the employer if he terminates without giving the required length of notice. This view also finds expression in the English saying that WHAT IS GOOD FOR THE GOOSE IS GOOD FOR THE GANDER. In the case of Inakoju & Ors v. Adeleke & Ors [2007]LPELR-1510(SC)1@127, Para A, Tobi JSC (of blessed memory) said; “It is good law that justice is not only for the plaintiff. It is not also only for the defendant. It is for both parties. I do not see why the appellants should complain if this court in the interest of doing substantial justice and in consideration of the time element and the facts before the trial Judge, hold that the Court of Appeal was right in invoking Section 16 of the Court of Appeal Act. The Englishman says that what is good for the goose is also good for the gander. I do not think I know who the goose is and who the gander is. Perhaps the appellants are the goose and the respondents the gander.” [Emphasis mine]. From the agreement between parties the monthly salary is $7,000. The defendant is thus indebted to the Claimant in the sum of $14000 as 60days salary in lieu of notice. As such I find that the defendant is liable to pay the Claimant the sum of $14000 as salary in lieu of notice. Relief (iii) succeeds.

 

46. The Claimant vide relief (iv) seeks for damages from the defendant in the sum of $336,000 being the total amount of income for 28 days ($12,000 per day from 1st June 2019-28th June 2019) which the Claimant lost as a result of the grounding of its operations on account of the Defendant’s resignation without prior notice, and his refusal to take part in the base inspection by NCAA, on 21st May, 2019. The right to legal remedies for breach of contract exists and is exercisable by the operation of law. If a party who alleges that his contractual or other legal right is breached, asks for a remedy in accordance with the due process of law, if the facts and the law support the grant of such remedy it should be granted. The rule guiding award of damages for breach of contract is generally embedded in doctrine of Restitutio in integrum, that is, in so far as the damages are not too remote, the Claimant shall be restored, to the position in which he would have been if the breach had not occurred. The rule governing the time of assessment of damages is that damages are to be assessed as of the time when the cause of action arose, that is, the date of the breach. See the case of MTN v. Corporate Communication Investment Ltd, supra @50-51, Paras. D-F.

 

47. In the instant, claimant is claiming the sum of $336,000 being the total income it would have generated for 28 days at the rate of $12,000 per day from 01June 2019-28th June 2019 which it allegedly lost as a result of grounding its operations on account of defendant’s resignation without prior notice and his refusal to take part in the base inspection. First, let me say that this head of claim is based on anticipated profit/loss which is in the realm of special damages that must be specifically pleaded and strictly proved. See; Wema Bank Plc v.  Arison Trading & Engineering Co Ltd & Anor [2015]LPELR-4003(CA)1@37, Para D. Ipso facto, a claim for loss of earnings or loss of use is a matter which falls in the realm of special damages which must be specifically pleaded and strictly proved. In the case of Union Bank v. Nwankwo & Anor [2019]LPELR-46418(SC) 1@19-20, Para B, the apex Court had this to say; “It is indeed trite that a claim for special damages must not only be specifically pleaded item by item with corresponding monetary value of the claimed item, the items as particularized must further be proved by credible evidence for the Court to grant the claim. Where special damages have not been specifically pleaded and proved, same shall not be granted. It follows that a claim for special damages succeeds only in respect of actual and not estimated or anticipated loss or profit...” The Claimant in this case did not plead how it came by the quantum of the loss of the sum of $12,000 per day summed up to be $336,000 claimed. Its averment in paragraph 21(iii) is not sufficient to satisfy the requirement of the law requiring special damages to be specifically pleaded item by item with corresponding monetary value of the claimed item, the items as particularized must further be proved by credible evidence for the Court to grant the claim. In the same vein the letter of 7th day of June 2019 frontloaded at page 38 of the record is not sufficient to justify this head of claim as there is nothing in it to show that Claimant lost the amount claimed herein by the rescission in that letter. Also, the said sum is an estimated/anticipatory loss and not the actual loss as there is nothing before this Court to show that the Claimant makes $12,000 per day from its operations as sought in relief iv. Awarding this sum will be tantamount to this Court delving or dabbling or flirting into the arena of mere speculations not backed up evidence.

 

48. Besides, I have read through the pleadings of the Claimant and all documents relied upon, I must say that there is no evidence in support of the fact that the resignation of defendant or his refusal to take part in the base inspection was the sole reason for the NCAA grounding Claimant’s operation for 28 days. In fact, there is no evidence before this Court to show that Claimant’s activities were grounded for 28 days from 1st June 2019 to 28th June 2019. The evidence on record as tendered by defendant at page 134 of the record that is the Modular Audit Report showing the Findings and Recommendations from inspection carried out, a document which the Claimant is not challenging its authenticity or veracity clearly shows apart from the absence of the Director of Maintenance in person of the defendant, several other things were not in place which constituted breach of the Nigerian Civil Aviation Regulations. The document shows that the need for a Director of Maintenance was not the only thing requiring Immediate Corrective Action Plan (CAP) Target date by the Claimant. There are other things which were not put in place by the Claimant requiring Immediate CAP Target Date which are contained in item 3,10, 15,17a, 31. I do not therefore see how the absence of the defendant as the Director of Maintenance can be said to be the sole reason for grounding the operations of the Claimant. The Claimant also contributed to the grounding of its operation by not putting some of these things in place especially those requiring Immediate Corrective Action Plan. It is in view of all the reasons given above that I find that relief (iv) fails.

 

49. Claimant vide relief (v) is seeking an order of this Court directing the defendant to pay N50,000 for each day he remained in the Country after his resignation under Claimant’s expatriate quota. Let me first say that relied (v) is not part of pleadings. Thus, a relief sought must be based on cogent facts pleaded. I have read through both the statement of facts and the Reply to statement of defence with the mastery of an eagle eye and I cannot find any facts pleaded therein relating to relief (v). Besides, the evidence on record suggests that the defendant worked for Claimant till the 30th day of June,2019. The Claimant has not been able to dislodge this or place before this Court evidence to show that beyond that 30th of June, the defendant was still in Nigeria on the Claimant’s expatriate quota. Had the Claimant been able to show that the defendant still stayed in Nigeria and worked for others on its expatriate quote beyond 30th of June, 2019 when it last worked for it, the Court would have held that by the principle of unjust enrichment he must not be allowed to retain the benefits. However, there is no such evidence before this Court. It is in the light of this that I find that relief (v) fails.

 

50. I will take reliefs (vi) and (vii) together. Both reliefs are reliefs on general damages and aggravated damages respectively. As reasoned supra, I have said that the rule guiding award of damages for breach of contract is embedded in Restitutio in integrum, that is, in so far as the damages are not too remote, the Claimant shall be restored, to the position in which he would have been if the breach had not occurred. The principle connotes that a party who has been adequately compensated, under one head of damages for a particular breach is not to be awarded damages in respect of the same breach under another head. The law seriously frowns at double compensation. See the case of DHL v. Eze-Uzoamaka & Anor [2020] LPELR-50459(CA)1@38-39, Para B. Besides, this action is based on breach of contract of employment. Therefore, having awarded the two months’ salary in lieu of notice sought by the Claimant as damages in this case, this Court cannot for the same reason award general damages sought and aggravated damages. This will amount to double compensation which the Court frowns at. Accordingly, reliefs vi and vii fail.

 

51. The claimant in relief (viii) is asking for the cost of action. The law is settled that costs including cost of litigation is at the discretion of the Court once empowered by its Rules. See Mekwunye v. Emirates Airlines, supra; [2019] LPELR-46553(SC)1@67-73, Para E. This Court has similar copious provisions as that of the Federal High Court relied upon by the Supreme Court in the case of Mekwunye v. Emirates Airlines, supra. The Rules of this Court, particularly Order 55 Rules 1,2,3,4 and 5 empowers the Court to grant costs of action at its own discretion. The discretionary power of the Court is to be exercised judicially and judiciously. The claimant in this suit did not assess the cost, rather he passed the burden on the Court. The Claimant in the instant suit has successfully proven that the defendant breached the contract agreement entered into by parties. In the exercise of the discretion of the Court considering the number of sittings and processes filed by the Claimant, I award the sum of N200,000 as cost of action.

 

52. Now let me consider the counterclaim. The law is of common that A counterclaim is an independent action instituted as a cross action and it is governed by the rules of pleadings as the original action. See; Lokpobiri v. Ogola [2016] 3 NWLR (Pt 1499) 328; Osagiede v. Uwabor [2014] LPELR-22664(CA)1@35, Para D. Thus, generally it is necessary for a claimant to file and serve a defence to counterclaim to join issues with a counter-claimant. In the same vein, the counterclaimant must discharge the burden of establishing his entitlement to the reliefs claimed. See the case of Akinbade v. Babatunde [2018]7 NWLR (Pt 1618)366@388, Para G; 395, Para B.(SC). Defendant/counterclaimant vide his counterclaim is claiming for the sum of $2400 being his unpaid allowance while in the United States. The defendant/counterclaimant pleaded facts relating to this vide paragraph 2 of the counter-claim. The claimant/defendant to counterclaim vide paragraph 3 of its defence to the defendant’s counterclaim vehemently denied the averment of the defendant/counterclaimant as regards the above sum. It averred further that the counterclaimant was not entitled to a daily allowance as the agreement between parties only provided for an in-country per diem of $500.00 cash per month and any allowance outside the agreement of parties is at the discretion of the Claimant and must be earned. It maintained further that while claimant was in the US, it paid for Counter-claimant’s accommodation and gave him $50 daily and also return tickets from USA to Greece to enable him see his family. It is trite that monetary claims are in the realm of special damages that must be specifically pleaded and strictly proved. See the case of SPDC v. Akpomudje [2018] LPELR-46105(CA)1@53-54, Para D. The Counter-claimant merely pleaded that his allowances were paid leaving a balance of $2400. He did not plead how he came by the quantum of $2400 claimed as unpaid balance of allowance by pleading what his total allowance was and how much exactly was paid to be left with the balance of $2400 that he is claiming as unpaid balance. Also, I have read through the whole of the contract document between parties and I cannot find any evidence in support of this head of Claim by the counterclaimant. The Remuneration clause in the Agreement only provides for payment of salaries and additional payment of an in-country per diem of $500 cash each month for all other expenses not provided in the agreement. There is equally no evidence supporting the fact that Counterclaimant was paid any sum as allowance leaving a balance of $2,400 as claimed. This head of claim is bereft of evidence and as such in the realm of speculations which cannot be granted. It is in view of this that I refuse relief (a) in the counterclaim. Relief (a) fails.

 

53. The defendant/counterclaimant vide relief (b) in the counterclaim is asking for the sum of $2000 being balance of his salary for October 2018. He averred vide paragraph 3 of the counterclaim that his salary for the month of October 2018 was paid in part in the sum of $5000 leaving a balance of $2000. The claimant/defendant to counterclaim averred that the counterclaimant did not work for it in October, 2018 but rather was working for one Baker Aviation Maintenance LLC and as such did not deserve to be paid during this period by it and which fact the defendant himself agreed to in meetings held thereafter for his return to the Claimant. The defendant/counterclaimant has the burden to prove his entitlement to the said sum of $2000 being special damages. There is no evidence before this Court showing that defendant/counterclaimant was even paid the sum of $5,000 by the claimant leaving as balance of $2,000 for the said month of October 2018 as alleged in his counterclaim which would have meant that he is entitled to the outstanding balance. The defendant/counterclaimant has not discharged this burden by placing cogent, credible and verifiable evidence before this Court in support of his assertion on this head of claim especially where same is being challenged by the Claimant/ defendant to counterclaim. The trite position of the law as restated in plethora of judicial authorities is that a claim for special damages being exceptional and specific in nature, can succeed only upon concrete proof. See; Ibrahim & Ors v. Obaje [2017] LPELR-43749(SC)1@10, Para A and; Neka BBB Manufacturing Co Ltd v. African Continental Bank Ltd [2004] 2 NWLR (Pt 858) 521@540-541. The defendant/counterclaimant has not proven his entitlement to the sum of $2,000 claimed as outstanding balance of $2,000 of his salary for the month of October, 2018. He should have gone further to show that he was truly paid $5,000 by the Claimant/defendant to counterclaimant leaving a balance of $2,000. No evidence showing such payment even when the agreement clearly stated that payment of salaries shall be by wire transfers. The counterclaimant to succeed needed to tender evidence showing wire transfer of the sum of $5,000 to his account as salary for October, 2018. In the light of all reasoned supra, I find that relief b fails.

 

54. By relief c, the defendant/counterclaimant claims the sum of $11,200 as his salaries for the months of November and December, 2018 while he was off duty. He averred vide paragraph 4 of the counterclaim that he was not paid his salaries in November and December when he was off duty and was entitled to only 80% of his salary which is $5600 making a total of $11,200. The Claimant/defendant to counterclaim by its pleadings seem to agree that truly the defendant was not paid but its only contention is that defendant/counterclaimant during this period was not working for it but instead was working for Baker Aviation Maintenance LLC from October to December 2018 and did not perform any work for it and which counterclaimant himself agreed in meetings held thereafter that he did not deserve to be paid. See paragraph 4 (d)- e of the defence to counterclaim. Although there is no evidence in support of the averment of the Claimant/defendant to counterclaim that claimant during the said period was working for another company named Baker Aviation Maintenance LLC in the United States of America. Howbeit, defendant/counterclaimant still bears the burden to prove his entitlement to the sum claimed as it will not succeed on either express or implied admission. Admission either on the basis of default of pleadings or on pleadings without evidence in support is not enough, to award special damages. See; Aliyu v. Bulaki [2019] LPELR-46513(CA)1@42-45, Para E. I have perused the agreement entered into by parties which was still in force at the relevant period and I find that clause 5.0 (b) provides among other things that the defendant counterclaimant shall be on two months and on one month off duty while only 80% of the defendant/counterclaimant shall be paid while off duty.  In effect, the defendant counterclaimant by that clause cannot be on two months consecutive off as he is to be on two months on, one month off and only 80% of his salary shall be paid during the one month off duty period. In essence, the agreement between parties does not support the counterclaimant’s assertion that he was on off duty November and December, 2018 which is a two months consecutive off period contrary to the provisions of the agreement.  The agreement does not support two months consecutive off duty that counter-claimant said he had from November-December, 2018. Besides, there is no credible evidence before this Court to show that the counter-claimant was on off duty during this period especially where the agreement does not permit two consecutives off duty period. The point I am making is that while it is true that the agreement between parties supports payment of 80% of counterclaimant’s salary during his off-duty period, the agreement only allows two months on-duty and one month off-duty, it does not permit two consecutive months off duty like we have in this case. The Counterclaimant in order to show that he is entitled to the 80% of his salary for those two consecutive months has to show that he was truly on off duty for those two consecutive months under the permissive will of the Claimant/defendant to counterclaim which would mean that by the agreement entered into by parties he is entitled to 80% of his salary during the off duty period. The counterclaimant has not sufficiently justified the grant of this relief. Thus, relief ( c) fails.

 

55. The counterclaimant vide relief d is asking for the sum of #28000 being his salaries for May, June, July and August 2019 at #7,000 per month making a total of #43,600 United States of America Dollars. Let me first state that the way this particular relief is couched is confusing as one is not sure whether what the counterclaimant is claiming is the sum of $28,000 or $43,600 which he claims to be the total. Besides, $7,000 per month for four months May, June, July and August, 2019 will be $28000 and not $43,600. That being said, as reasoned supra in this judgment during the consideration of the main claim, the defendant/counterclaimant was in the employ of the claimant till the 20th day of May, 2019 when he resigned his position as Director of Maintenance. There is equally evidence before this Court as shown earlier in this case that the defendant/counterclaimant despite the said resignation still worked for the claimant/defendant to counterclaim from the 21st day of May, 2019 till 30th day of June, 2019 as shown by the log book. In fact this fact was alluded to in the final written address of the defendant/counterclaimant. However, I must point out that there is no evidence before this Court that the defendant/counterclaimant worked for the claimant beyond the said 30th day of June, 2019. It is obvious at paragraphs 26-28 of the statement of defence (which has been incorporated as part of the counterclaim in the introductory paragraph of the counterclaim) that the defendant only worked till the 30th day of June, 2019. Thus, he can only claim his full monthly salary of $7,000 for those two months of May and June, 2019 and not beyond. This is because it is elementary law that an employee can only draw salaries for work done and not allowed to claim salaries for work not done. See the following cases; Atulomah v. Nigerian College of Aviation Technology [2015] LPELR-25733(CA) 1@37-38, Para F and; Spring Bank Plc v Babatunde [2012] 5 NWLR Part 1292 Page 83 at 101 Para C-D.

 

56. I am mindful of the submission of the learned counsel on behalf of the defendant counterclaimant in paragraph 4.89 of his final written address that the defendant can claim for salaries for July and August 2019 which is his off period going by the agreement between parties. I must say that it is expedient that counsel while presenting the case of his client need to be consistent. In the case of NNPC Pension Ltd v. Viat Construction Ltd [2016] LPELR-41259(CA)1@13-14, Para F, the Court per Hassan JCA held thus; “For the streams of justice to remain pure, counsel must at all times be consistent in the presentation of his case. See Pacers v. Dancing Sister (2012) 1 SCNJ 1 at 6 and Adeosun v. Ekiti State (2012) 1 SCNJ 260.” [Emphasis mine] Learned counsel has severally in the address submitted that the agreement between parties was not renewed and same ended since the 9th day of April 2019. Going by counsel’s submission that the agreement expired since 9th day of April, 2019, how convenient is it for learned counsel on behalf of the defendant/counterclaimant to now change gear from his earlier position and be claiming payment during off duty in July and August, 2019 based on the same agreement he submitted has ended since 9th April, 2019. Besides, the agreement as stated supra in this judgment only supports two months on and one month off as I have stated earlier. It does not support two consecutive months off and such payment during off duty is only 80% of the salary and not the full salary as is being claimed by the defendant in July and August 2019.  Thus, it cannot be said that the defendant was on off in July and August 2019. More so when the fact stated by learned counsel that the defendant was on off duty in July and August 2019 is not supported by the pleadings of the defendant either in the statement of defence (which is also incorporated as part of the counterclaim) or in the paragraphs of the counterclaim. The point I am making is that the pleadings or the evidence before the Court does not support the payment of counterclaimant’s salary for July and August, 2019 and as such same cannot be granted. In view of all reasoned supra, I find that the defendant/counterclaimant is only entitled to his salaries for May and June, 2019 when he still worked for the Claimant. Accordingly, he is entitled to be paid $14,000. Thus, Relief (d) succeeds only to the extent that the defendant/counterclaimant is entitled to the sum of $14,000 as salaries for May and June 2019.

 

57. I cannot end this judgment without commenting on the manner in which learned counsel for both parties conducted this case. Learned Claimant’s counsel filed a reply brief. I do not with due respect to counsel see the real relevance of the first part of the reply brief in respect of the counterclaim particularly pages 14-21 of the said Reply. The argument in those pages of the reply brief is more of taking a second bite at the cherry or re-opening the address on the counterclaim which is not the purpose of a reply brief. See; Mabon Ltd & Ors v. Access Bank [2021] LPELR-53261(CA)1224-25, Para F and; Mamomu &Anor v. Dikat & Ors [2019] LPELR-46560(SC)1@16-17, Para E. Learned counsel on those pages did not respond to any issues of law raised in the address of the counterclaimant on the counterclaim. Rather, he sought to reargue his submissions on the counterclaim. In fact, he only started responding on points of law to issues raised in the address of the counterclaimant as regard the counterclaim at pages 22-23. The above explains why this Court did not bother to summarize that portion of the reply address in the body of this judgment.

 

58. Learned counsel on behalf of defendant/counterclaimant cited cases in paragraphs of his final written address. In paragraph 4.61 of his final written address a case was cited as GE Int’l Operation (Nig)Ltd v. Q-Oil & Gas Services Ltd [2016]304 at 331. The case was cited without indicating the law report he was citing from or the volume. Also, in paragraph 4.62 of the defendant’s final written address, learned counsel cited another case as Sea Trucks Ltd (1999)6 NWLR (Pt 607)514 at 537. Learned counsel in that paragraph purportedly quoted from the dictum of Ayoola JCA as he then was without giving full citation of the parties. Let me say that the full and correct citation of that case in the said law report is Sea Trucks (Nig) Ltd v. Pyne [1999]6 NWLR (Pt 607)514. The law is settled that a counsel who wants the Court to make use of the authorities cited must provide and cite the cases with clarity, i. e. where the case has been reported, the name of the law report, the year, volume and the page. See the following cases; Haruna v. Kano State [2020] LPELR-50869(CA)1@5-6, Paras C-C and Chidoka & Anor v. First City Finance Co. Ltd [2012] LPELR-9343(SC)1@13-14, Para D. The position of the Courts is that where a Counsel fails to supply the full or correct citation of a case law authority he relies on, it will be assumed that the case does not exist. Thus, this Court will completely ignore the case of GE Int’l Operation (Nig)Ltd v. Q-Oil & Gas Services Ltd [2016]304 at 331 cited by the learned silk on behalf of the defendant/counterclaimant.

 

59. It is also important I address one issue raised by learned silk in paragraphs of the defendant’s final written address wherein he contended that the document showing defendant attended the debriefing meeting of 28th May, 2019 was also signed by Akagwu Michael Arome who is the CW. Learned silk made a heavy weather of the issue of the signatures and urged the Court to compare the signatures of the said CW as contained in his written statement on oath of 11th September, 2019 and further statement on oath of 28th February, 2020.See paragraphs 4.66- 4.70 of the final written address. Counsel particularly in paragraph 4.68 submitted that the document showing the defendant attended the debriefing meeting of 28th May, 2019 was signed by the same CW. In paragraph 4.70, he urged the Court to compare the signature on the document as pleaded in paragraph 29 of the statement of defence with the signature on those statements on oath of CW. First let me say that address of counsel no matter how beautiful cannot be a substitute for pleadings and or evidence. See the following cases; Smooth v. Smooth [2015] LPELR-25732(CA)1@21-22, Para C and; Achibong v. Edak [2006] 7 NWLR (Pt. 980) 455 @502. There was nowhere in the statement of defence/counterclaim where the defendant pleaded that a document showed that he attended the debriefing meeting of 28th May, 2019 and that same was signed by the said Akagwu Michael Arome. The defendant’s averment at paragraph 29 which learned silk referred to is clear and there is nothing in it suggesting that there is document showing that he attended the debriefing and which document was signed by the same CW and no such document was pleaded therein. In fact, there is no such document pleaded elsewhere in the statement of defence not to talk of same being before this Court for the Court to now compare the signature on it with that on the statements on oath as counsel would want this Court to do. It is the noble duty of counsel to present correct facts before the Court and not to mislead the Court. The Apex Court and Court of Appeal have had opportunity to admonish counsel on this sacred duty that they owe to the Court. See the following cases; Pere Roberto (Nig) Ltd v. Ani [2009] 13 NWLR (Pt. 1159) 522@ 534- 535 and Okomu Oil Palm Ltd v. Okpame [2007] 3 NWLR (Pt 1020)71. Counsel should not mislead the Court whether intentionally or by error as counsel must realize that they are ministers in the temple of justice and their primary responsibility is to the Court in its bid to arrive at the just determination of a case. The point must be made that in as much as the Court must not be seen to be speculating without document or evidence, so also the Bar must not put the Court in position of speculations not backed up by facts or evidence in a case.

 

60. In sum, I declare and order as follows;

1.      Reliefs i, ii and iii in the main action succeed. The Claimant is entitled to the sum of $14,000 as salary in lieu of notice from the defendant.

2.      Reliefs iv, v, vi and vii in the main action fail.

3.      Relief viii succeed to the extent that Claimant is entitled to be paid the sum of N200,000 as cost of litigation.

4.      Reliefs a, b and c in the counterclaim fail

5.      Relief d in the counterclaim succeed only to the extent that the defendant/counterclaimant is entitled to his two months’ salary for May and June, 2019 to the tune of $14,000.

6.      It is in view of Orders 1 and 5 that I make an order urging parties to vice the judgment sums. The import of which is that the judgment sum to be paid by the defendant to the claimant is the cost of N200,000, which is to be paid within 14 days of this judgment failing which it is to attract simple interest of 10% per annum.

     61 Judgment is accordingly entered.

                                   

 

                                                                        Hon Justice O.O. Oyewumi

                                                                                    Presiding Judge