IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D.DAMULAK

DATED THIS 22ND DAY OF NOVEMBER, 2023

SUIT NO: NICN/ IL/13/2021

BETWEEN:

LANDMARK UNIVERSITY                                 ……………………  CLAIMANT

AND

PEACE AYEGBA                                               …………………….. DEFENDANT

 

REPRESENTATION

 Abiodun Dada for the claimant

Olaoluwa Imoru for the defendant

 

JUDGMENT

INTRODUCTION

1.      The claimant took out a complaint on 22/12/2021. By a motion filed on 31/1/2022, the defendant applied for extension of time to enter a memorandum of appearance and statement of defence but only filed a memorandum of appearance. The defendant filed a statement of defence and counter claim on 8/4/2022.The claimant filed a reply to the statement of defence on 13/5/2022 and by a motion of 1/9/2022, the claimant filed a reply to statement of defence and a defence to the counter claim.

2.      The claimant claims as follows;

a.      The sum of N 3,020,524.00 being the total sum expended by the claimant on defendant’s masters degree program under sponsorship/bond agreement.

ALTERNATIVELY

An order of court compelling the defendant to complete the term of service under the sponsorship and agreement i.e 36 months of service to the claimant.

3.      The defendant counter claims for 6 reliefs, these reliefs shall be reproduced in due course..

CASE OF THE CLAIMANT

4.     At the hearing of this case on 2/2/2023, the claimant called a sole witness, Mr. Toba Adekanye. This witness as CW, adopted his witness statement on oath of  1/9/2022 at pages 245-250 of the courts file as and his additional witness statement on oath at pages 238-241 of the courts file, filed on 1/9/2022 to accompany the reply to statement of defence and defence to counter claim pursuant to a motion of that date.

5.     It is the case of the claimant that the Defendant is a staff of the Claimant at the Computer Science Department of the Claimant as an Assistant Lecturer. That the Claimant makes provision for a Sponsorship/Bond Agreement and gives opportunity for each of her faculty staff to freely enter into Bond/Sponsorship Agreement which will amount to full Sponsorship of their Studies in any desired field and the benefit with same will be repaid by rendering their services for twice the number of years of studies.

6.      That the Sponsorship/Bond Agreement is a willful agreement and any staff that wishes to enter into it can do so and any staff who wishes to further his/her studies and does not so wish to be bonded can resign and apply for the Master or Phd as an external student. The defendant as a staff of the Claimant is aware that any member of the faculty of the Claimant who intends to further his/her studies while in service of the Claimant is expected to enter into a Sponsorship/Bond agreement with the claimant.

7.      That the Sponsorship/Bond agreement provides that the Claimant shall fully fund the Defendant’s Masters Degree Programme and in addition continue to pay her salary while she studied.

8.     That by a Sponsorship/Bond Agreement dated 3rd December, 2018 and duly executed by the Defendant and her Guarantor, the Defendant entered a Sponsorship/Bond Agreement with the Claimant and commenced her Masters’ Degree Programme with the Claimant.

9.      That the Defendant took the full advantage of the Sponsorship programe and successfully completed her Masters Degree programme with the Claimant. Upon completion of her Masters Degree, the defendant was upgraded to an Assistant Lecturer by a letter dated 22nd March, 2021.

10.  That to the Claimant surprise the Defendant wrote the Claimant through her lawyer of her intentions to leave the Claimant’s employment having secured an admission at Babcock University for her PhD programme and her unreadiness to render her years of services in return for her training during her Masters Degree programme in the Sponsorship/bond Agreement she entered into with the Claimant. The Defendant, through a mail dated 13 September, 2021, sent to the claimant, stated her intentions to resign her Appointment with the Claimant. That the Claimant replied the Defendant mail via a letter dated 4th October, 2021 informing the Defendant that her absence from work will be treated as an abscondment as she is yet to serve out the terms of her Sponsorship/Bond Agreement.

11. That the Defendant is aware that the Sponsorship/Bond Agreement is only available to staff of the Claimant and the Defendant had the option to ether remain as a staff of the Claimant and sign the Bond Agreement or resign as a staff and pay her full tuition fee for her Master’s as an external student.

12.  The Defendant is free to leave the Claimant’s employment provided she repays in full her tuition fees for the Masters Degree Programme paid by the Claimant and also a refund of the salaries she collected during her studies for the Masters Degree Programme in accordance to the Sponsorship/Bond Agreement.

13.  Before the Defendant’s letter of resignation can be accepted, she has to refund the following monies to the Claimant. The sum of:

a.      Seven Hundred and Thirty-Five Thousand Naira (N735.000:00) being the Schools fees for one and half (1/2) academic session of the Defendants Masters Programme fully paid by the Claimant.

b.      One Hundred and Twenty-Four Thousand, One Hundred Naira (124,100:00) being the accrued interests on the school fees (at 100% compound interest) paid by the Claimant.

c.      Two Million, One Hundred and Sixty-One Thousand, Four Hundred Twenty-Three Naira, Seventy-Six Kobo (N2,161,423.76) being total salary paid to the Defendant by the Claimant during the Eighteen (18) months of her Masters Degree Programme from November, 2018 to April, 2020.

14. That this amounts to Three Million, Twenty Thousand, Five Hundred and Twenty-Four Naira (3,020,524:00) payable by the Defendant to the Claimant as the total sum of money the Claimant expended on the Defendant’s Masters Degree Programme under the Sponsorship/Bond Agreement.

15.In his additional witness statement on oath in reply to the statement of defence and counterclaim, it is the case of the claimant/counter defendant that the Defendant/Counter Claimant is still a staff of the Claimant at the Computer Science Department of the Claimant. That the Defendant Counter Claimant’s Letter of Resignation cannot be honoured until she pays the balance of the Bond Agreement. That the Defendant/Counter Claimant’s absence from work will be treated as an abscondment from work, as already indicated via a letter dated 4th October, 2021 sent to the defendant.

16.That the Claimant/Counter Defendant’s staff were not intimidated in any way at all and they were not forced to be bonded with the Sponsorship/ bond agreement but depends largely on their desire to seek for higher academic standard. That the defendant/Counter Claimant has the option to freely resign but she failed to resign and willingly signed the Bond Agreement.

17.That the Defendant/Counter Claimant has benefitted from the sponsorship/bond Agreement in completion of her Master’s program, she cannot tum around to state that the Sponsorship/Bond Agreement is unfair, unreasonable, not freely entered into and not legally enforceable.

18.I know as fact that it is because the Defendant/Counter Claimant does not want to be bound by the bond for Doctorate Degree (PhD) proqramme that is why she is raising untrue facts in her Statement of Defence and Counter Claim. I know as a fact that the Defendant/Counter Claimant have option to leave the defendant’s employment and refund salaries she collected during her masters program if she does not want to be bonded by the bond for PhD programme in Landmark University since she claimed that she have secured an admission at Babcock University for her Phd. programme.

19.In defence to the counter claim, CW repeats his depositions in reply to the statement of defence and adds that the defendant counter claimant suffered no physical, emotional and financial stress as a result of any of claimant’s actions.

CASE OF THE DEFENDANT/COUNTER CLAIMANT

20. It is the case of the defendant counterclaimant in her 66 paragraph statement of defence which doubles as the facts of the  counter claim and supported by her 62 paragraph witness deposition that the claimant provided a platform for improvement for its staff who want to pursue further academic studies not because it had any commitment to enhance both its students and lecturers but because it want to restrain its lecturers from seeking better employment opportunities and use them to satisfy its own selfish desires.

21. That the claimant began its Master Degree Programme in Computer (MSc) only sometimes in August 2018 and I was admitted on the 22nd day of August 2018. That there was no notice of a bond requirement to me on admission to the MSc programme. That on the 4th day of October 2018 I paid the sum of N200,500.00 (Two Hundred Thousand, Five Hundred Naira) to the claimant as part payment of my school fees.

22.  That to my chagrin, sometimes in late October or early November, the claimant called a meeting and informed all concerned of a compulsory sponsorship/bond agreement and stated that all who have made payment for school fees will have a refund of the monies paid. That the sum of N195, 000 (One Hundred and Ninety-five Thousand  was refunded to me by the claimant on the 20th  day of December 2018 after I had been coerced into signing the Sponsorship/Bond agreement and the claimant claimed that difference was non-refundable administrative charge.

23.That the sponsorship/bond agreement was never a willful agreement as the claimant used all means within its disposal to ensure that its unwilling staff were forced into it. That the claimant made resignation the only option open to a staff who is not willing to be bonded. That the claimant refused to pay my salary for the month of November 2018 whereas it paid that of other staff who had at the time signed the sponsorship/bond agreement. That my salary for the month of November was eventually paid on the 14th day of December 2018 after I had been coerced into executing the sponsorship/bond agreement dated the 3rd  day of December 2018.

24. During the pendency of the said Master programme the claimant used me not just as a staff but even gave me responsibities beyond what a staff in my position as a Research Assistant should undertake. That as  a Research Assistant I was not meant to take classes/lecture students but at the material time I took 3 courses in the first (Alpha) semester of the first year of my MSc programme and 2 courses in the  second (omega) semesters and I was course advisor to the 100 level students in both semesters. That I also took 3 courses in first (Alpha) semester of the 2nd year of my MSc programme and 3 courses in the second (Omega) semester and was Course Advisor to the 200 level students in both semesters. I was never absent from my duty post, rather, I was fully engaged lecturing, classes of which took 20 to 30 hours weekly.

25. The claimant vide a meeting with the Registrar on the 9TH  day of August 2021 again introduced a 6 (six) years bond for a Doctorate (PhD) programme and requested that all concerned, I inclusive pick up the form and enter into a 6 years bond with the claimant. That I again offered to pay my own school fees for my PhD programme but the claimant refused and insisted that the school would pay for the programme while I would be bonded for another 6 years otherwise I should resign my appointment with the school .  

26. Again, by a notice of 27th day of July 2021, the claimant threatened not to pay my salary until it is evident that I have signed a bond agreement for my Phd. programme with the school and the claimant actually made good its threat as it stopped my salary whereas other staff salaries were paid. That the claimant also sent me mails requesting me to resign if 1 would not execute a bond agreement in respect of a PhD programme.

27.  I felt cheated, maltreated and humiliated; I therefore caused my Solicitors, Abimbola Abayomi & Co. to write to the claimant a letter dated the 6 day of August 2021. My solicitors’ letter to the claimant indicated that I would be willing to commence my PhD programme with the claimant only if I will be allowed to pay my own school fees and not be bonded by any means, otherwise I would commence my PhD in another university.

28. That the claimant’s solicitors caused response letter dated the 20th day of August 2021 to my solicitors stating that I must be bonded if I would otherwise I am free to leave the claimant’s employment and repay my full Tuition fees and refund salaries I collected during my Master programme. 

29. When it became obvious that the claimant would not be reasonable I resigned in protest and rejection of the bond which does not form part my terms of employment.

30. That without conceding however, even if the bond agreement of 8th December, 2018 were to be enforceable, having served the claimant for a period of eighteen (18) months after the completion of my Master Degree programme, I would be left to serve for a period of eighteen (18) months or pay to the claimant salaries for the period only. Having worked for the claimant, performing even above my responsibilities as a Research Assistant during the period, I was entitled to the salaries for the period, there is no basis for a refund to the claimant. That having been forced into the bond agreement and having worked for the period, the claimant is not entitled to refund of any salary.

31. The interest of 100% claimed by the claimant or any interest at all does not form part or my employment contract or even the Sponsorship/bond agreement and there is no basis for it.

 

FINAL WRITTEN ADDRESSES OF PARTIES

32. The defendant counsel filed his final written address on the 21/3/2023 and formulated four issues for determination.  The final written address of the claimant was filed on 3/4/2023 and he formulated one issue for determination. Reference will be made to any part of the addresses as the need arises in the course of this judgment.

COURT’S DECISION

33.  I have read carefully the pleadings and evidence, both oral and documentary as well as the final written addresses and I am of the view that the issues raised by both counsel can be summarized as whether any of the claimant or defendant is entitled to any of the reliefs sought.

 

34. It is pertinent to note that all the facts from both parties are not contested and so not in issue. Having summarized the case of the parties above, it shall not be necessary to reproduce facts agreed as it covers all the facts from both divide. What is in contention is whether or not the policy of the claimant relating to sponsorship/bond is a fair labour practice.

 

 

35. From the agreed facts, these are the salient points of the sponsorship/bond program of the claimant.

a.      Every academic staff must advance educationally.

b.      The advanced studies must be undertaken in the claimant’s institution.

c.      The advanced studies must be sponsored by the claimant under a bond to serve the institution for twice the period of studies upon completion.

d.      A staff cannot choose to sponsor himself or go to another institution to advance his studies except he first resigns his employment with the claimant and apply as an external student.

e.      This was enforced by withholding of salaries of any staff who did not want to sign a bond.

 

36. It is the contention of the defendant that because of these conditions, the bond agreement amounted to unfair labour practice and was forced on her as a staff and not voluntarily signed. The claimant contends that since the defendant knew of the conditions and her right to resign but chose to sign same, the bond agreement was voluntarily signed.

 

37. What is unfair labour practice? The Blacks Law Dictionary, Tenth edition define the word unfair as 1. Not honest, impartial or candid, unjust. 2. Inequitable in business dealings, especially, with regards to labour and employment.

 

38. Any labour practice that is unjust and inequitable, tampering with an employer’s right of choice as in this case, amounting to forced labour is an unfair labour practice. In the circumstance of this case, given the conditions of the bond as enumerated above, given that the defendant offered to sponsor herself but the claimant refused, when the defendant refused to sign the bond, her salaries were withheld; the claimant is faced with a situation of take it or face unemployment, submission to the bond in the circumstance cannot be said to be voluntary, it is a submission coerced to avoid the punishment of employment, the service under the bond is then forced labour.

 

39. The above situation is a clear violation of the defendant’s fundamental right under section 34(1) of the constitution of the Federal Republic of Nigeria 1999 (as amended) which provides as follows;

 

34(1) Every individual is entitled to respect for the dignity of his person, and accordingly

(a) no person shall be subjected to torture or to inhuman and degrading treatment

(b)no person shall be held in slavery or servitude.; and

(c) no person shall be required to perform forced or compulsory labour.

40. Besides contravening section 34(1) of the constitution of the Federal Republic of Nigeria, the above situation also violates international labour standard, in particular, ILO convention no.29 (1930), on forced labour and ILO convention no.105(1957) on abolition of forced labour. Both conventions were ratified by Nigeria on 17th October, 1960. The elements of forced labour as per these conventions are punishment and involuntary submission.

 

41.Under convention 29, forced or compulsory labour is defined as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.

42.Under convention 105, forced labour involves coercion, threat of penalty and lack of voluntary agreement by the individual.

 

43. All the above conditions or policy of the claimants bond agreement, except (a), are clear instances of unfair labour practice and forced labour. I so find and hold.

CLAIMANT’S ENTITLEMENTS

44. The claimant claims for the following;

a.      The sum of N 3,020,524.00 being the total sum expended by the claimant on defendant’s masters degree program under sponsorship/bond agreement.

ALTERNATIVELY

An order of court compelling the defendant to complete the term of service under the sponsorship and agreement i.e 36 months of service to the claimant.

45. The claim in (a) is broken down as follows;

The sum of:

a.      Seven Hundred and Thirty-Five Thousand Naira (N735.000:00) being the Schools fees for one and half (1/2) academic session of the Defendants Masters Programme fully paid by the Claimant.

b.      One Hundred and Twenty-Four Thousand, One Hundred Naira (124,100:00) being the accrued interests on the school fees (at 100% compound interest) paid by the Claimant.

c.      Two Million, One Hundred and Sixty-One Thousand, Four Hundred Twenty-Three Naira, Seventy-Six Kobo (N2,161,423.76) being total salary paid to the Defendant by the Claimant during the Eighteen (18) months of her Masters Degree Programme from November, 2018 to April, 2020.

 

46. In terms of school fees paid under the bond agreement. it is not in dispute that the claimant paid the sum of (N735.000:00) in fees for the defendant’s Msc studies for a period of 18 months. By the bond agreement, the defendant is supposed to serve the claimant for a period of 36 months upon completion of her studies. See clause 2b and 2c of exhibit JA3 which provide as follows;

2(b) That for the purpose of this agreement, every one calendar year of training under this programme shall entitle the sponsor to two academic calendar years of continuous service from the beneficiary and for the purpose of this programme, the sponsors entitlement shall begin to run from the end of the academic programme.

2(c) whereupon the completion of an academic programme for the masters degree, the beneficiary is desirous of pursuing a Doctorate programme immediately, the  sponsor shall be entitle to two ears of every one year for the period of the masters and doctorate degree programme.

 

47. It is also the uncontested case of the defendant that she served the claimant for a period of 18 months after completion of studies. See paragraph 59 of the statement of defence and paragraph 54 of the witness deposition. But for the fact that the court has found that the bond agreement violates the defendant’s fundamental right and contravenes International Labour conventions 29 and 105, the just implication and conclusion would have been that in terms of school fees paid, the defendant is now owing the claimant half of the school fees paid, having served half of her tenure under the bond. This will amount to the sum of N367,500.00 (Three Hundred and sixty seven thousand Five Hundred Naira) in terms of refund of school fees paid under the bond agreement.

 

48. However, the bond, being a form of forced labour and having violated the defendant’s fundamental right and contravenes International Labour conventions 29 and 105, is unenforceable against the defendant. I so hold.

 

49. With respect to claim (b), for the sum of (124,100:00) being the accrued interests on the school fees (at 100% compound interest) paid by the Claimant, I have read the bond agreement, Exhibit JA3, This is what clause 2d says;

2(d)  To refund to the Sponsor in full and at once the total consideration expended towards the Beneficiary’s training under the Masters/ Doctorate programme and the accruing interest on such consideration calculated from the commencement of the beneficiary’s training  including 100% of  the total salary paid in the course of training as beneficiary in the Masters degree programme and 50% of salary paid in the course of training as beneficiary in the Ph.D programme shall be paid back to the Sponsor, if for any reason whatsoever the beneficiary desires to discontinue his service to the sponsor in the course of  training or at the end of the training  but before the completion of the beneficiary’s expected of service at the end of this contract.

 

50. Although interest is vaguely mentioned, “and the accruing interest on such consideration calculated from the commencement of the beneficiary’s training” without more, this cannot entitle the claimant to fix the interest rate while going to court.  I agree with the defendant that the interest of 100% claimed by the claimant or any interest at all does not form part of the Sponsorship/bond agreement and there is no basis for it. This head of claim fails both on this ground and on the ground that the bond agreement is unenforceable and is hereby refused.

 

51. On claim(c) for the sum of (N2,161,423.76) being total salary paid to the Defendant by the Claimant during the Eighteen (18) months of her Masters Degree Programme from November, 2018 to April, 2020. It is the uncontroverted case of the defendant that she was assigned lecturing job throughout the period of her studies and so the claimant is not entitled to a refund of the salaries paid to her during that period. In view of the fact that by policy, the Msc program was necessarily in the claimant’s institution, this claim is further supported by clause 3(e) of exhibit JA3 which provides as follows;

3(e) To approve, if it deems fit, beneficiary’s work days for which he can be engaged in the pursuit of training programme, provided it is not done in a manner that would prejudice the regular responsibilities assigned the beneficiary.  

 

52.  I cannot agree more with the defendant but to add that it will amount to unfair labour practice to ask the defendant to refund the salaries earned during that period, which in this case, it would have been half of 2,161,423.76 amounting to N1,080,711.88. This head of claim fails on this ground and on the ground that the bond agreement is unenforceable and is hereby refused.

53.  The case of the claimant fails in its entirety and is hereby dismissed.

54. It is necessary to consider the alternative claim because the main claim has failed. See ADAMU KASIM v. NIGERIA NATIONAL PETROLEUM CORPORATION & ANOR (2012) LPELR-22369(CA). The alternative claim must also per force fail on the ground that the bond agreement is unenforceable.

 

COUNTER CLAIMANT’S ENTITLEMENTS

55. The defendant counter claimant counter claims as follows;

i.        A DECLARATION that the Sponsorship/bond Agreement dated 8th  day 0f December, 2018 was unfair, unreasonable, arbitrary, defective and unenforceable

ii.     A DECLARATION that the Defendant to the counterclaim has no claim in refund of school fees, the counter-claimant having worked for the period of her Master Degree programme.

iii.   A DECLARATION that the defendant to the counterclaim having not kept to its own part of the bond agreement which it seeks to enforce has no right to claim refund of school fees.

iv.   AN ORDER mandating the defendant to the counter claim to forthwith release and handover to the counter claimant the counter claimant Msc certificate.

v.      The sum of N2, 000, 000.00 (Two Million Naira) as damages for the physical and psychological stress suffered by the counter-claimant as a result of the harassment, intimidation and oppression from the defendant to the counter claim.

vi.   Cost of this action.

 

56. While considering the entitlement of the claimant, the court has already found that the bond policy is unfair and that the claimant is not entitled to salaries paid during the masters programme. The implication is that reliefs (i), (ii) and (iii) succeed.

57. With regards to relief (iv) for AN ORDER mandating the defendant to the counter claim to forthwith release and handover to the counter claimant the counter claimant Msc certificate, I have read the entire statement of defence which doubles as the facts of the counter claim, I did not find where the defendant counter claimant avers that her Msc. certificate has not been released to her. This is an apt situation for the saying that a case is won and lost in chambers, for this is an error in pleadings where there is a claim without facts in support of the claim.

 

58. A court of law, not being a Father Christmas, can only grant what is pleaded and proven except for consequential orders as reliefs are founded on facts in the pleadings. See SOJITZ CORPORATION v. SUBARU MOTORS NIGERIA LIMITED (2017) LPELR-50747(CA)

There cannot be reliefs without facts leading to the claim in the reliefs. Reliefs are founded on the facts averred in the pleadings. Both averments and reliefs are necessary components in a statement of claim.

This head of claim accordingly fails and is dismissed.

 

59.  With respect to claim v for the sum of N2, 000, 000.00 (Two Million Naira) as damages for the physical and psychological stress suffered by the counter-claimant as a result of the harassment, intimidation and oppression from the defendant to the counter claim. The physical and psychological stress suffered by the counter-claimant and the harassment, intimidation and oppression are also only in the claim and not pleaded and proven. This claim is refused.

 

COURT ORDER

60. It is hereby ordered and declared as follows;

a.      The case of the claimant is dismissed for want of merit.

b.      A DECLARATION that the Sponsorship/bond Agreement dated 8th  day of December, 2018 was unfair, unreasonable, forced labour, defective and unenforceable

c.      A DECLARATION that the Defendant to the counterclaim is not entitled to refund of school fees, the counter-claimant having worked for the period of her Master Degree programme.

61. Each party to bear its cost.

62. This is the judgment of the court and it is entered accordingly.

 

…………………………………

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE