IN THE NATIONAL INDUSTRIAL
COURT OF NIGERIA
IN THE KADUNA JUDICIAL
DIVISION
HOLDEN AT KADUNA
ON WEDNESDAY 5TH
DAY OF FEBRUARY, 2020
BEFORE HIS LORDSHIP: HON.
JUSTICE S. O. ADENIYI
SUIT NO: NICN/KD/67/2017
BETWEEN:
SKYJET AVIATION
SERVICES LTD……………..CLAIMANT
AND
LEONARD
JOHANNES OBERHOLZER………….DEFENDANT
J U D G E M E N T
The Claimant is an
Aircraft Charter Company engaged in airline operations and other aviation
services. The case of the Claimant as garnered from the claims before the
Court, is that in May, 2016, an offer of employment was made to the Defendant
as a captain upon terms and conditions mutually agreed to by both parties for a
period of three years that is, from 8th May, 2016 to 7th
May, 2019. One of the terms of the employment contract was that either party
shall give six months’ written notice or six months’ salary in lieu of notice
to terminate the contract. The Claimant contends that barely a year into the
execution of the contract, the Defendant abruptly terminated the contract which
action caused huge financial losses to the Claimant. The contention of the
Claimant further is that, the Defendant has a contractual obligation to settle
the expenses incurred for his training but that the Claimant absconded without
doing so.
2. Being aggrieved by the Defendant’s purported unlawful termination and/or
breach of the said contract, the Claimant commenced the instant action; vide Complaint
and Statement of Facts filed in this Court on 18/12/2017, whereby it claimed against the Defendant, the
reliefs set out as follows:
1. The sum of $16,193.50 USD representing the outstanding sum due to the
Claimant from the Defendant arising from cost of training the Defendant while
the Defendant was under the Claimant’s employment which the Defendant is under
obligation to refund by virtue of the employment contract dated 16/05/2016.
2. The sum of $51,000.USD being the Defendant’s six (6) months’ salary in
lieu of notice.
3. 10% post judgement interest until final liquidation of the judgement
debt.
4. Cost of this action.
3. The Defendant joined issues with the Claimant by filing a Statement of Defence on 10/04/2018 to which a Counter-Claim was subjoined. The
Defendant contended, in summary, that some of the clauses of the said
employment contract were not in compliance with statutory provisions and
various international standards of labor and employment contracts. The
Defendant further contended that his resignation occurred out of frustration as
he was placed in a very unbearable situation during his tenure of his contract
with the Claimant. The Defendant also contended that the Claimant breached the
provisions of the contract of by refusing and/or neglecting to pay the salary
of the month of August 2017.
4. Whereof the Defendant Counter - Claimed against the Claimant as
follows:
i.
The sum of $8500 (Eight
Thousand Five Hundred USD) being special damages for the salary of August 2017
duly earned and acknowledged by the Claimant.
ii.
The sum of $51,000.00 (Fifty
One Thousand USD) being salary payable by the Defendant/Claimant to the
Counter- Claimant from September 2017 till February 2018.
iii.
The sum of $10,000.00 (Ten
Thousand USD) being general damages for the trauma and pains the Counter
Claimant suffered in the course of his employment with the Defendant/ Claimant.
iv.
The cost of this suit as may be
assessed by the Honourable Court.
The Claimant further filed a Reply to the Defendants’ Statement of
Defence and Defence to Counter Claim on 08/05/2018.
5. At the plenary trial, one Sanni Bukar, the Human Resource
Manager of the Claimant testified as her sole witness. He adopted his Statement on Oath as his oral
testimony and further tendered sixteen (16) sets of documents as exhibits to further
substantiate the Claimant’s case. He was thereafter cross-examined by the
Defendants’ learned counsel.
As I had earlier noted, the Defendant filed a Statement of Defendant and
the witness deposition on oath of their sole witness and Counter-Claim, but he
elected to rest his case on that of the Claimant’s.
6. Thereafter, parties filed and exchanged their written final addresses as prescribed by the provisions of Order 45 of the Rules of this Court.
In the address filed on behalf of the Claimant on 30/05/2019, and settled by Kolawole Mustapha, Esq., of counsel for the Claimant, a sole
issue was canvassed as having arisen for determination in this suit, that is:
Whether the Claimant had led sufficient
evidence at trial to be entitled to the reliefs sought in the Complaint and
Claimant’s Statement of Facts?
In the final address filed on behalf of the Defendant on 01/08/2019, its learned counsel, Adekunle
Ayeni, Esq., identified two issues as having arisen for determination
in this suit, namely:
1. Whether the Claimant is
entitled to any of the reliefs sought in the Statement of Facts.
2. Whether the Claimant is liable
to pay the sum of $8,500 (Eight Thousand Five Hundred Dollars) being the salary
for the month of August 2017 as agreed by both parties.
The Reply on Points of Law
to the Defendant’s written address was filed on 22/08/2019.
7. Upon a proper assessment of the pleadings of parties, the totality of
admissible evidence adduced on record and the totality of the circumstances of
this case, it is my considered view that the narrow issues that call for
determination in this suit, without prejudice to the issues already formulated
by learned counsel on either side, can be succinctly formulated as follows:
1. Whether the Defendant, having admitted
his financial obligation to the Claimant; and having pleaded for time to pay
same, is not liable to the Claimant for the reliefs sought?
2. Whether the Defendant has
discharged the burden of proving his entitlement to his Counter Claim?
I have also taken cognizance of the totality of the arguments canvassed
by the respective learned counsel in their written addresses; to which I shall
endeavour to make specific reference as I deem needful in the course of this
judgment.
ISSUE ONE
8. For starters, it is pertinent to remark that the case put forward by
the Claimant is principally documentary in nature. A number of documents were tendered on which
it relied heavily to illustrate and establish its position in this case.
In that circumstance, the focus of the Court is directed principally at
the documents tendered as the yardstick to assess the oral testimony adduced by
the Claimant’s witness. Charting this course is in consonance with the
established legal proposition that documentary evidence, being the best
evidence, is the yardstick or hanger by which to assess the veracity or
credibility of oral testimony. See Ezemba
Vs Ibeneme [2004] 14 NWLR (Pt 894) 617; Interdrill (Nig.) Limited Vs UBA
Plc [2017] LPELR-41907(SC).
9. It is pertinent to further note and as correctly submitted by learned
counsel for the Claimant that where a Defendant does not adduce evidence, the
evidence before the Court goes one way leaving the Court with no other evidence
or set of facts with which to do the measuring of the scale. In a situation as
the present case, where a Defendant leads no evidence in proof of the facts
pleaded by him but rests his case on that of the Claimant, such pleading is
deemed abandoned and the Defendant is deemed to have completely accepted both
the pleadings and evidence or the case presented by the Claimant. See: U.B.N
Plc Vs Astra Builders (W.A. Ltd) [2010] 5 NWLR (Pt 1186) 1; Skye Bank
Plc Vs Akinpelu [2010] 9 NWLR (Pt 1198) 179; Aregbesola Vs Oyinlola
[2011] 9 NWLR (Pt 1253) 458; Admin/Exec; Estate, Abacha Vs Eke-Spiff
[2009] 7 NWLR (Pt 1139) 97; Aondo Vs Benue Links [2019] LPELR 46876
10. Parties are not in disagreement that the relationship between the
Claimant and the Defendant that resulted in the institution of the instant suit
is contractual in nature. In this regard, the Claimant led evidence, through
its sole witness, to show that there was a binding employment agreement between
the parties and tendered in evidence as Exhibit C1; the copy of the
employment contract. The CW1 further testified that by virtue of Exhibit C1, the duration of the
contract was for three years certain, effective from 08/05/2016 till 07/05/2019.
11. The basic or fundamental terms of the agreement critical to the
resolution of the issue at hand, as can be gleaned from Exhibit C1, are set out
as follows:
1. That the commencement date is
from 08/05/2016 to 07/05/2019 – Clause 1.
2. That the Claimant shall send
the Defendant on training at the Claimant’s expenses and that the Defendant
shall be made to sign a Loan Agreement to the effect of defraying the expenses
of the Claimant provided the Defendant did not serve the Claimant within the
contract period stipulated in the agreement – Clause 2.
3. That Claimant shall pay the
Defendant a monthly salary of $8,500.00 (Eight Thousand, Five Hundred USD) – Clause
4.
4. That the Claimant shall provide
ground transportation for the official and private use of the Defendant and an
adequate and fully furnished accommodation free of charge – Clauses
3 and 6.
5. That during the pendency of the
agreement either party shall terminate by giving written notice of six (6) months or six (6) months’
salary in lieu of notice – Clause 10.
6. That the agreement shall be
construed in accordance with the laws of the Federal Republic of Nigeria – Clause
17.
I further make
reference, in this regard, to the averments contained in paragraphs 3, 4, 5 and 6 of the Statement of Facts .
12. The case of the Claimant, as further told by the CW1 in his Witness
Deposition on Oath, is that on 06/09/2017, the Defendant breached the terms of
the employment agreement by abruptly resigning his appointment via an email, contrary
to the manner stipulated in Exhibit C1; that the Defendant is under obligation
to pay the Claimant six (6) months’ salary in lieu of notice and that during
the pendency of the Defendant’s employment, the Claimant incurred expenses for
training and other expenses on the Defendant in the sum of $77,993.50 USD which
the Defendant is under obligation to defray. In this regard, the witness
tendered in evidence as Exhibits C5 and C6,
the invoice proforma of Emirate Flight training and the Claimant’s letter of
authorization of transfer of money to the Defendant’s account.
13. The CW1 testified further that the Claimant sent a detailed account
of expenses it incurred to the Defendant; that the Defendant in his reply
promised that he would not abscond and pleaded for time to fulfill his
financial obligation to the Claimant. The said notice of resignation via email
by the Defendant, the Claimant’s emails to demand for settlement of the
Defendant’s obligation for expenses incurred and the Defendant’s reply were
admitted in evidence as Exhibits C2, C2A, C2B and C2C respectively.
14. The witness further testified that despite the promises made by the Defendant,
he still failed to refund the Claimant for the expenses and that he absconded.
Consequently, the Claimant deducted the sum of $8,500.00 (Eight Thousand, Five
Hundred USD) being the Defendant’s salary for the month of August 2017 and the
sum of $2,300.00 (Two Thousand, Three Hundred USD) that was paid by the
Defendant as refund to offset part of the Defendant’s financial obligation.
15. The witness testified further that the Defendant had previously been
employed in the services of the Claimant and that he is familiar with the terms
of the contract of employment. The e-mail of Defendant requesting for
absorption to the Claimant and the employment contract executed by the parties
on 01/07/2009 were tendered in evidence as Exhibits C4 and C3 respectively.
The witness further testified that the Defendant did not only breach the
terms of employment by resigning before the expiration of the term agreed but
he also presented simulator reports that were not genuine. He tendered in
evidence as Exhibits C7 and C8, the internal memo of the
Claimant and the letter of the chairman of the Claimant to Director of South
Africa Civil Aviation Authority.
16. Now, it is an
elementary principle of contract and indeed well settled that parties are
generally bound by the terms and or conditions of an agreement which they voluntarily
entered into. It is also trite that the Courts are bound by the terms of an
agreement which parties before it have freely and validly executed. Thus, if a
Court is called upon to construe an agreement, the Court cannot but limit
itself to the express terms of the agreement as indicated and/or specified by
the parties. This is because where the parties have embodied the terms of their
contract in a written document, extrinsic evidence is not admissible to add,
vary, subtract from or contradict the written terms of the contract or
agreement. Therefore, where a Court is faced with the task of interpreting a
written instruction or agreement from one party to the other or between two or
more parties (as the case may be), it is expected that it will carry out its
duty within the walls or confines of the written and express terms of the
instruction or agreement. See the cases of Babatunde & Anor Vs Bank
of North Ltd & Ors [2011]
LPELR 8249(SC); Chukwu & Anor Vs Chukwu & Ors [2018] LPELR 4548.
17. The task this Honourable Court is to undertake is to examine the
terms of the employment of the contract as embodied in Exhibit C1 if the terms
have been breached by the Defendant as alleged by the Claimant. A breach of
contract is said to be committed when a party to the contract without lawful
excuse fails, neglects or refuses to perform an obligation he undertook in the
contract or either performs the obligation defectively or incapacitates himself
from performing the contract. See Adeoti
Vs. Ayorinde [2001] 6 NWLR (Pt. 709) 336; Obajimi Vs. Adediji [2008]
3 NWLR (Pt. 1073) 1.
18. Now, on the basis of the evidence on record as reviewed in the
foregoing, it is my firm view that the Claimant has established a clear case of
breach of the employment contract by the Defendant. This finding flows clearly
from the evidence of the CW1 in
paragraphs 7, 8 and 13 of his Witness
Deposition on Oath.
To further support these facts, CW1 tendered in evidence Exhibits
C1, C2 and C2A. In Exhibit C2, the Defendant stated in his email to the
Claimant as follows:
“Good morning
sir,
I am very very sorry sir. With this letter I would like to give notice
of resignation with immediate effect”
It is crystal clear that the Defendant is in clear breach of the terms
of Exhibit C1 for failure to give adequate notice of six months as agreed by
parties. I so hold.
19. It is also not difficult for the Court to make a finding, in the
first instance that the Defendant having breached the terms agreed is required
to give to the Claimant six (6) months’ salary in lieu of notice. In Chukwuma Vs Shell Petroleum Development
Co Ltd [1993] 4 NWLR (Pt 289) 512, it was held that where a contract of
service gives a party a right of termination of the contract by either giving a
particular length of notice or payment of salary in lieu of the length of
notice and the latter course is chosen, the party seeking to put an end to the
contract must pay to the other party the salary in lieu of notice at the time
of termination of the contract.
20. Furthermore, the evidence of CW1 is that the Claimant demanded from
the Defendant via Exhibits C2A and C2B the refund of his financial obligation to
the Claimant which includes the money expended for the Defendant’s training. The
Defendant in his reply of 11/09/2017 - Exhibit C2C stated as follows:
“Mr. Sanni,
Good morning. I am doing everything I can to get some payment schedule
worked out. I just need time to get everything sorted out. Rest assured I will
not run away from my obligations.
Kind regards,
Nardo.
I hold the firm view that by this exhibit the Defendant has largely
admitted the Claimant’s claim. The law is well settled that what is admitted
requires no further proof. See the provisions of Section 20 of the Evidence Act 2011.
An
admission is a statement, oral or written (expressed or implied) which is made
by a party to civil proceedings and which statement is adverse to his case. It
is admissible as evidence against the maker as the truth of the fact asserted
in the statement. In Ojukwu Vs Onwudiwe & Ors [1984]
2 SC 15 at 38, the Supreme Court, per Aniagolu
JSC (as he then was), put the principle succinctly when he held as
follows:
"Another principle deeply enshrined in
our jurisprudence is that admissions made do not require to be proved for the
simple reason, among others that 'out of the abundance of the heart the mouth
speaketh' and that no better proof is required than that which an adversary
wholly and voluntarily owns up."
See also Olubode Vs Adesina
[1977] 5 SC 210; Seismograph Services
Nig. Ltd Vs Eyuafe [1976] 9 & 10 SC 135 at
146 Veritas Insurance Co. Ltd. Vs Citi Trusts Investments Ltd. [1993] 3 NWLR (Pt. 281) 3491.
21. Clear evidence on record is that the Defendant resigned his
appointment without giving the required notice and without offering any reasons
for so doing. Clear and unequivocal evidence is further that, the Defendant
refunded sum $2,300.00 USD to the Claimant as part of his obligation to the
Claimant; and when the Claimant wrote to demand for him to settle his
obligation to the Claimant, the Defendant indeed offered to pay and pleaded for
time to pay.
22. Having regard therefore the Defendant’s unequivocal admission of
liability to the Claimant of breach of contract of employment as stated in
Exhibit C2 and the fact that he made part payment of his obligation and further
pleaded for time to make payments, I must state that it is rather belated or
incongruous for the learned counsel for the Defendant to contend or attempt to
disclaim the Defendant’s liability for failure to sign a loan agreement as
required in clause 2 of Exhibit C1.
Therefore, for the learned counsel for the Defendant to turn around to
contend that Exhibits C5 and C6 tendered by the Claimant in support of its case
for refund and or payment of the expenses incurred by the Claimant is not
conclusive, cogent and reliable, after the Defendant had already admitted the
breach and offered reparation, amounted to approbating and reprobating at the
same time. I so hold.
It is trite law that parties are not allowed to approbate and reprobate
in the conduct of their cases. See Ezomo
Vs. AG Bendel [1986] 4 NWLR (Pt. 36) 448 @ 462; Kayode Vs. Odutola
[2001] 11 NWLR (Pt. 725) 659.
23. As correctly submitted by the learned counsel for the Claimant, a
party who admitted a fact is estopped from later denying the truth of the
admitted fact. See the provision of Section
169 of the Evidence Act and the
authorities of Bank of the North Ltd
Vs Yau [2001] 10 NWLR (Pt 721) 408; Anason Farms Ltd Vs NAL Merchant
Bank [1994] 3 NWLR (Pt 331) 241 cited by the Claimant’s counsel. See
also Ehidimhen Vs Musa [2000] 8
NWLR (Pt. 669) 640; Ukaegbu Vs Ugoji [1991] 6 NWLR (Pt. 196) 127 @
143-144.
In the present case, the Claimant wrote Exhibit C2B (the
Claimant’s list of Defendant’s financial obligation) to the Defendant. Subsequently
in his reply in Exhibit C2C to the Claimant, the Defendant admitted his
financial liability and pleaded with the Claimant to give him time to “get everything sorted out”. It is on
record that the Defendant absconded and failed to fulfill his financial
obligation to the Claimant.
24. Furthermore, the evidence of CW1 under cross examination by the
learned Defendant’s on the issue of
the loan agreement is as follows:
“I
do not have the loan agreement but this has been overtaken by event when the
Defendant agreed to settle the outstanding”
The weight of evidence against the Defendant on the issue of admission
of the Claimant’s case, is to say the least, very generous. If not a tacit
acceptance of liability, what other explanation can there be for the
Defendant’s plea in Exhibit C2C, for time to “do everything he can to get some
payment schedule worked out”?
It is sound logic to reason that the Defendant would not have taken
steps to make any refund of $2,300.00 to the Claimant if in the first place he
did not agree that he owed the Claimant financial obligation for breach of the
employment responsible for the erroneous debit. I so hold.
25. Permit me at this juncture to address the argument of the learned
counsel for the Defendant on the issue of illegality of contractual terms of
the parties. Learned counsel had argued that it is against all reasonableness
and the intendment of the drafters of the Labour Act the demand by the Claimant
for six (6) months’ salary in lieu of notice from the Defendant. He further
argued that the Claimant’s demand is totally illegal and a nullity. His
argument is premised on the provision of Section
11 of the Labour Act, Cap L1 Laws of the Federation 2004. Learned
counsel argued further that by virtue of Section
11 (2) (d) of the Labour Act (supra), the highest notice that can be given
by parties under the Act is one month provided that the contract has continued
for a period of 5 years or more.
26. I make haste to dismiss the incredible arguments of the Defendant’s
learned counsel that the Claimant’s claim for the sum of $51,000.00 (Fifty –
One Thousand USD) as payment in lieu of notice from the Defendant as illegal
and unfounded. With due respect, learned counsel’s argument is totally
erroneous and misconstrued. Section 11 of the Labour Act (supra) is inapplicable
to the present case because the length of notice was expressly stated in
Exhibit C1 by the parties.
By virtue of Section 9 (7) of
the Labour Act (supra), a contract of employment shall be terminated as
follows:
(a) by the expiry of the period for which it was
made; or
(b) by the death of the worker before the expiry
of that period; or
(c) by notice in accordance with Section 11 of
this Act or in any other way in which a contract is legally terminable or held
to be terminated
I am therefore unable to agree with the extremely wide and wild
interpretation learned Defendant’s counsel accorded Section 11 Labour Act (supra), to mean that the contract is
illegal and contrary to best international standards of labour. These arguments
were not supported by evidence led on the record. I therefore reject the
totality of the arguments canvassed by the Defendant’s learned counsel on the
issue.
I agree with the
submission of the learned counsel for the Claimant that the parties in the
instant case are bound by the terms of contract which they had freely entered
into. The Defendant having freely executed Exhibit C1 is bound by the terms in
clause 10 thereof. I so hold.
28. The finding of
the Court is that on the basis of the cogent, credible and uncontroverted
evidence adduced by the Claimant and the evidence of admission offered by the
Defendant, the Claimant is eminently entitled to his claims. I so hold.
ISSUE 2
29. It is clear from
the record of this Honourable Court that the Defendant did not lead evidence in
defence of the instant suit or in proof of his Counter – Claim. It is an
elementary principle of law that pleadings must be substantiated and proved by
evidence. This is because pleadings have no mouth to speak to Court and so they
speak through witnesses. If witnesses do not narrate them in Court they become
moribund and dead at all time. The point being said is that it is difficult for
a party in a suit to succeed on the strength of elaborate averments in the
pleadings in respect of which he has abandoned. See Nigeria Army Council Vs Erhabor [2018] LPELR 44958; Hadejia
Vs Abbas [2016]
LPELR-40234; Ademeso Vs Okoro [2005] 14 NWLR (Pt 945) 304.
Without further ado, the
Defendant’s Statement of Defence is deemed abandoned and his Counter - Claim is
hereby accordingly dismissed. I so hold.
30. In the final analysis, I hereby resolve
the two issues set down for determination substantially in favour of the
Claimant. The judgment of this Court is that the Claimant’s action is
substantially meritorious on the evidence led on the record and the same hereby
substantially succeeds. Accordingly it is hereby declared and ordered as
follows:
1. The Defendant is hereby ordered
to pay to the Claimant forthwith the sum of USD16,193.50 (Sixteen Thousand, One
Hundred and Ninety Three US Dollars) only, being the outstanding sum due to the
Claimant from the Defendant arising from the cost of training the Defendant
which the Defendant is under obligation to refund by virtue of the employment
contract.
2. The sum of $51,000 (Fifty – One
Thousand US Dollars) only.
Parties
shall bear their respective costs.
SINMISOLA O. ADENIYI
(Presiding
Judge)
05/02/2020
Legal representation:
Kolawole Mustapha Esq. for Claimant
Adekunle Ayeni Esq. for Defendant