IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP:                          HON. JUSTICE M. N. ESOWE

 

DATE: SEPTEMBER 18, 2024                            

SUIT NO.: NICN/LA/255/2019

 

BETWEEN

DANGOTE OIL REFINING COMPANY

LTD                                                                                                     CLAIMANT

 

AND

1.   OYINKANSOLA OLAYINKA JOHNSON

2.   OLADIPO OLANREWAJU JOHNSON                                        DEFENDANTS

3.   OLATOKUNBO JOHNSON

 

REPRESENTATION

P. Omeje, Esq for the Claimant

E. O. Eromosele, Esq for the Defendants

 

JUDGMENT

1.  INTRODUCTION

2.   The Claimant offered employment to the 1st Defendant as a Management Trainee vide a letter of employment dated 04.02.2016. The 1st Defendant accepted the employment with the 2nd and 3rd Defendants standing as her guarantors to a training bond she executed with the Claimant. The Claimant in the bond undertook to train the 1st Defendant in design and detailed engineering at Engineers India Limited in New Delhi, India for a year on the condition that on the 1st Defendant’s return, she would work for the Claimant for a period of five (5) years postdating the training. The Claimant however abruptly brought the training at India to an end after nine (9) months. On the 1st Defendant’s return to Nigeria, the Claimant caused her to work for a company that was part of the conglomerate it belonged to, which according to the 1st Defendant greatly affected her health. Dissatisfied with the perceived lack of conducive work environment, the 1st Defendant resigned from the Claimant’s employment. The Claimant has now approached this Court to enforce the terms of the training bond executed by the 1st Defendant and guaranteed by the 2nd and 3rd Defendants.

 

3.   The Claimant as per the endorsement on its General Form of Complaint and Statement of Facts filed on 23.05.2019 seeks the following against the Defendants jointly and severally:

 

a)     A DECLARATION that the 1st Defendant is in breach of her agreement, obligations, covenant, undertaking and bond to the Claimant as contained in the training bond of 06.03.2016.

b)    A DECLARATION that the 2nd and 3rd Defendants are both liable to the Claimant on account of the 1st Defendant’s breach of her agreement, obligations, covenant, undertaking and bond to the Claimant as contained in the training bond dated 06.03.2016 and duly guaranteed by the 2nd and 3rd Defendants hereof.

c)     AN ORDER for the payment of the sum of N15,714,000.00 (Fifteen Million, Seven Hundred and Fourteen Thousand Naira) by the Defendants to the Claimant being training/course fee, visa processing fee, FRRO cost, air ticket/travel expenses, accommodation cost, transportation cost, feeding including a consolidated training stipend of $300 per month, and other ancillary cost of logistics incurred by the Claimant in the 1st Defendant’s foreign training.

d)    The sum of N2,000,000.00 (Two Million Naira) being and representing general and exemplary damages for the 1st Defendant’s breach of her agreement and undertaking with the Claimant.

e)     The sum of N2,000,000.00 (Two Million Naira) being special damages for breach of contract, that is the professional fees paid by the Claimant to recover the full cost of 1st Defendant’s foreign training from the Defendants as a result of the breach of employment contract by the 1st Defendant.

f)      Payment of interest on the above sum to the Claimant at the rate of 21% per annum from the 4th day of December, 2017 till judgment is delivered hereof and thereafter at 10% until total liquidation.

 

4.   The Defendants in their defence upon entering appearance filed a Joint Statement of Defence and Counterclaim alongside its accompanying processes. The 1st Defendant/Counterclaimant in her counterclaim alluded that the actions and or conduct of the Claimant/Defendant to the counterclaim were such that frustrated the performance of the contract of employment and training bond as the Defendant to the counterclaim breached same severally. Therefore, she seeks the following against the Claimant/Defendant to the counterclaim:

 

a)     AN ORDER compelling the Claimant/Defendant to the counterclaim to pay the Counterclaimant the sum of N25,000,000.00 (Twenty-five Million Naira) being damages for committing several fundamental and material breaches of the contract between both parties.

b)    AN ORDER directing the payment of 21% interest on the judgment sum until the whole sum is fully liquidated.

c)     AND FOR SUCH ORDER OR FURTHER ORDERS as the Honourable Court may deem fit to make in the circumstances of the case.

 

5.   Responding to the 1st Defendant/Counterclaimant’s counterclaim, the Claimant/Defendant to the counterclaim filed a Statement of Defence to the Counterclaim wherein it vehemently denied the averments in the counterclaim and urged the Court to dismiss the counterclaim.

 

6.   TRIAL

7.   At trial, one Douglas Adiele, an Assistant General Manager Industrial Relations in the Claimant’s company testified as CW1, he adopted his written depositions as his evidence in chief and through him seven (7) documents were tendered in evidence, admitted and marked as exhibits C1 to C7 respectively. CW1 was cross-examined and the Claimant closed its case thereafter. The 1st Defendant/Counterclaimant testified as DW1, she adopted her written deposition as her evidence in chief, through her seven (7) documents were tendered in evidence, admitted and marked as exhibits D1 to D7 respectively. DW1 was cross-examined and thereafter the Defendants/Counterclaimants closed their case. The matter was then adjourned to enable parties file and exchange their respective final written addresses to be adopted at the adjourned date.

 

8.   DEFENDANTS’ FINAL WRITTEN ADDRESS

9.   Learned Defence Counsel on the Defendants’ behalf formulated an issue for determination, to wit:

 

a)     On the state of the pleadings and the preponderance of evidence, has the Claimant sufficiently proved its case to entitle it to the reliefs sought from this Honourable Court? If in the negative, have the Defendants/Counterclaimants sufficiently proved their counterclaim before this Court?

 

10.    Counsel proceeded to state that where parties enter into an agreement and have reduced same in writing, the written agreement governs their relationship, and the terms and conditions of such agreement should be respected by the Court – Vital Inv. Ltd v CAP Plc (2022) 4 NWLR (Pt. 1820) 205 at 250, D-F. That a fundamental breach of contract denotes a performance totally different from that which the contract contemplated and entitles the other party to not only damages but to refuse further performance of the contract – DHL Intl Nig. Ltd v Eze-Uzoamaka (2020) 16 NWLR (Pt. 1751) 445 at 486, E-G. That exhibit C4 – DW1’s resignation letter dated 04.12.2017, was precipitated by the fundamental breach of exhibit D1 – letter of employment, by the Claimant when the latter unilaterally deducted from DW1’s salaries for six (6) months, that is, June to November 2017 as evinced by exhibit D4 – DW1’s statement of account. Counsel submitted that documentary evidence is the best form of evidence and where there are conflicting oral testimonies, the party with documentary evidence will be accorded more credibility, as documentary evidence is the hanger on which oral evidence rests – Eya v Olopade (2011) 11 NWLR (Pt. 1259) 505 at 533, D-G.

 

11.    Counsel went on to state that the failure of the Claimant to specifically respond to the issue of unilateral deduction of DW1’s salary by filing a Reply to the Joint Statement of Defence amounts to an admittance – Achilihu v Anyatonwu (2013) 12 NWLR (Pt. 1368) 256 at 294, Oderah Inv. Co. Ltd v Ecobank Nig. Plc (2020) 10 NWLR (Pt. 1731) 65. That the coming into effect of exhibit C2 – the training bond dated 06.03.2016 was contingent upon a successful completion of the foreign training. That when exhibit C2 is interpreted alongside exhibit D1 it reveals that the foreign training was to last for a year. DW1 gave evidence that the training ended abruptly after nine (9) months, a fact the Claimant never refuted meaning admission – Section 123 of the Evidence Act, FBN Plc v M. O. Nwadialu & Sons Ltd (2016) 18 NWLR (Pt. 1543) 1 at 35, A-E. Learned Defence Counsel submitted that the effect of making a contract subject to the fulfilment of certain terms and conditions is that none of the parties can benefit from the agreement or claim any right from the agreement without the fulfilment of such condition precedent – Burton Resources Ltd & Anor v First Deepwater Discovery Ltd (2021) LPELR-54429(CA), BPS Const. & Engr. Co. Ltd v FCDA (2017) LPELR-42516(SC).

 

12.    He went on to submit that a party who institutes an action to enforce a contract cannot expect to succeed if it failed to discharge its obligation under the contract – Achonu v Okuwobi (2017) 14 NWLR (Pt. 1584) 142 at 179, A-B. That equity does not act in vain, he who comes to equity must come with clean hands – URS Rechie v NBCI (2016) 8 NWLR (Pt. 1514) 294 at 317, A-C. Counsel stated that the Claimant fundamentally breached exhibits D1 and C2 by abruptly ending the foreign training, redeploying DW1 to another company without her input and unilaterally deducting from DW1’s salaries without justification. That by virtue of Clause 4(3) of exhibit C2, the 1st Defendant cannot be said to have waived her right to end the contract or enforce its terms. That in the event the Claimant’s main reliefs fail, it would be merely academic exercise to consider the ancillary relief – Sunko (Nig.) Ltd v Skye Bank Plc (2017) 12 NWLR (Pt. 1579) 237 at 270, F-H. Counsel urged the Court to resolve the issue for determination in favour of the Defendants and hold that the Claimant has not proved its case to entitle it to the reliefs sought against the Defendants.

 

13.    CLAIMANT’S FINAL WRITTEN ADDRESS

14.    Learned Claimant’s Counsel began his address by responding to issues raised in the Defendants’ Final Written Address. In response to the issue of deduction of the 1st Defendant’s salaries, Learned Claimant’s Counsel submitted that it was a disciplinary measure for DW1’s 28days absence during the training as depicted by exhibit D3 – schedule of deduction, which speaks for itself – Bichi Inv. Nig. Ltd v Sybron Medical Centre Ltd & Ors (2020) LPELR-51194(CA). On the issue of successful completion of training, Counsel states that DW1’s testimony does not add up. That exhibit D2 (Whatsapp message relied upon by the Defendants communicating the termination of the training) does not contain any date. DW1 alluded that she resumed work in Nigeria after the training in February 2017 which is about a year after she commenced training. That a party should not benefit from her wrong – A. G., Rivers State & Ors v Amam & Ors (2021) LPELR-56320(CA). On the issue of redeployment, Counsel stated that the redeployment was to a sister company and the secondment was in DW1’s field of study. That exhibits C1 and D1 communicated that DW1 was welcomed to “Dangote Group” meaning that there is an implied term that she was an employee of the group or conglomerate thus permitting such redeployment or secondment.

 

15.    Learned Claimant’s Counsel proceeded to submit three (3) issues for determination, viz:

 

a)     Whether the 1st Defendant breached the terms and conditions, her obligations, covenants, undertaking and bond to the Claimant as contained in the training bond of 04.03.2016 (sic).

b)    Whether the Claimant from the totality of facts and evidence adduced at trial is not entitled to the reliefs as sought in this suit.

c)     Whether the Defendants are entitled to the reliefs as sought in their Counterclaim.

 

16.    Arguing issue one, Counsel submits that where parties voluntarily enter into a contract, they are bound by the terms and conditions. In the instant case, the rights and obligations of the parties can be deduced from the contract of employment – Onyeukwu v UBA Plc (2015) LPELR-24672(CA). That the 1st Defendant’s contention of not been availed with exhibit C1 (Selection for Overseas Technical training letter) is devoid of truth. That exhibit C1 and D1 (offer of appointment letter) should be construed as same document. Counsel went on to state that by virtue of exhibit C2, DW1 was expected to remain in the Claimant’s employment for 5years post the completion of her training. DW1 after benefitting from the training turned around to say the Claimant breached exhibit C1 by terminating the training. That DW1 admitted under cross-examination that all the Defendants were literate so they understood the terms of exhibit C2. Where a party has acted contrary to the terms of contract, the Court is bound to award damages – Nationele Computer Services Ltd v Oyo State Govt & Ors (2019) LPELR-48077(CA). That the duty of the Court is to respect the sanctity of contract and not to re-write the contract already made – Babatunde v Bank of the North Ltd (2011) 18 NWLR (Pt. 1279) 738 at 761.

 

17.    On issue two, Learned Counsel stated that facts admitted need no further proof – Ugwu & Ors v Ezeanowai & Ors (2017) LPELR-41888(CA). That DW1 admitted under cross-examination that the Claimant sponsored her training and catered for her during the training. That exhibit C3 is proof of expenses incurred by the Claimant in training the 1st Defendant. That in the light of exhibit C4 (resignation letter) which breached exhibit C2, the Defendants should be made to refund the expenses incurred by the Claimant in training DW1. That the Claimant has satisfied the requirement of proving its entitlement to the expenses incurred in training DW1 which is in the class of special damages that must be particularised in pleading and strictly proved – Onyiorah v Onyiorah & Anor (2019) LPELR-49096(SC). That the Claimant has equally proved its entitlement to damages in form of Solicitor’s fees – Gbalugo & Anor v Izuakor (2017) LPELR-43289(CA). That cost follows events and is awarded to a successful party. Counsel went on to state that in a secured transaction, where there is a default in agreement, the guarantors become liable – Auto Import Export v Adebayo (2005) 19 NWLR (Pt. 959) 44 at 127, A-G. He submitted that the 2nd and 3rd Defendants are liable to refund the expenses incurred by the Claimant in training the 1st Defendant.

 

18.    Counsel on issue three submitted that the Counterclaimant has been unable to establish breach of contract on the part of the Claimant or its management. That the law is he who asserts must prove – Densy Industries Nigeria Ltd v Uzokwe (1998) LPELR-602(CA). That the Counterclaimant’s claim is not backed by evidence, as the issue of deduction of salaries fall in the class of special damages which ought to be specifically pleaded and strictly proved. That the Defendant to the counterclaimant has done all that was required of it from exhibit C2. That exhibit C2 is not inchoate and it is the Counterclaimant that breached it. Counsel urged the Court to dismiss the counterclaim having not been proved by credible evidence. He concluded by urging the Court to resolve all the issues canvassed in favour of the Claimant in the interest of justice.

 

19.    DEFENDANTS’ REPLY ON POINTS OF LAW

20.    The Defendants reacting to the issues raised in the Claimant’s Final Written Address filed a Reply on Points of Law. In it, Defence Counsel argued that parties are not allowed to raise issue of fact in address of Counsel which were not raised or agitated on pleadings, as address of Counsel cannot substitute pleadings – Multi-pro Enterprises Ltd v Tijani (2021) LPELR-55784(CA). That the issue of deductions from the 1st Defendant’s salaries justified as a disciplinary measure was not pleaded. That parties are bound by their pleadings - Akande v Adisa (2012) 15 NWLR (Pt. 1324) 538 at 574, C-D. The justification given by Claimant’s Counsel in redeploying the 1st Defendant to a “sister company” equally was not pleaded. Counsel’s address cannot be a substitute for pleadings. Counsel stated that the duty of a trial Court is to determine cases based on the facts established at trial on the pleadings and in the evidence led – Peacocks Educational Consult v Etonyeaku (2018) LPELR-46113(CA). Counsel urged the Court to dismiss the Claimant’s claims.

 

21.    RESOLUTION

22.    Upon careful consideration of the facts and circumstances of this suit, the pleadings, evidence adduced and submissions of Counsel on either sides, the Court distils the issues below for determination, namely:

 

a)     Has the Claimant proved its case on the balance of probabilities to entitled it to the reliefs sought.

 

b)    Is the 1st Defendant/Counterclaimant entitled to her claims as per her counterclaim in the light of the evidence adduced by her.

 

23.    To begin with, Learned Defence Counsel has made heavy weather of the failure and or neglect of the Claimant to file a Reply to the Defendants’ Joint Statement of Defence, arguing that owing to the said failure, certain facts in the Statement of Defence are deemed admitted. Learned Claimant’s Counsel on his part opted to not join issues with the Defendants on this point rather he elected to address the proprietary or competence of the facts in the light of the evidence adduced before the Court. Generally, the filing of a Statement of Defence wherein denials are made to the allegations of facts contained in a Claimant’s Statement of Facts in law results in what is termed “joinder of issues”. It is these denials that give rise to a dispute or what is termed “facts in issue”. In Sunshine Oil & Chemical Dev. Co. Ltd & Anor v AMCON (2021) LPELR-54018(CA), the meaning of “joinder of issue” was given when the Court of Appeal held per Sankey, JCA “In Black’s Law Dictionary 8th edition, page 854, ‘Joinder of issues’ is defined as: 1) the submission of an issue for decision. 2) The acceptance or adoption of a disputed point as the basis of argument in a controversy. 3) The taking up of the opposite side of a case or of the contrary view on a question.” See also Ayoade v Governor of Osun State & Ors (2015) LPELR-24274(CA).

 

24.    In the instant case, the position of the Defendants is that their Joint Statement of Defence/Counterclaim takes up an opposite side to the case presented by the Claimant on certain facts or issues and in law it behoved on the Claimant to file a Reply pleading contrary facts, otherwise it would be deemed to have admitted the new material facts in the Statement of Defence. The issue then is would the mere taking up of an opposite side of a case amount to an introduction of new material facts, or in the instant case, the introduction of facts on the allege breach of contract by the Claimant as a defence constitute new material facts that require the filing of a Reply. In Adaka v Omessah (2023) LPELR-60857(CA) it was held inter alia “Now, it is the law that where a Statement of Defence in answer to an averment in the Statement of Claim avers to facts that raise new material issues or facts, if the Plaintiff does not admit to those facts, he must file a Reply pleading containing contrary facts, failure of which he would be deemed to have admitted the new material facts in the Statement of Defence. See Unity Bank Plc v Bouari (2008) 3 SC (Pt. II) 1, Egesimba v Onuzuruike (2009) 10 SC 1…”

 

25.    The Court went on to hold that “A Plaintiff is also expected to file a Reply to the pleadings of a Defendant where he intends at least to raise doubt to the Statement of Defence and when he fails to do that, the legal effect of such failure is that the facts pleaded by the Defendant are deemed admitted. See Dr Rasaki Oshodi & Ors v Yisa Oseni Eyifunmi & Anor (2000) 13 NWLR 298 at 326. However, where both parties have joined issue, then pleadings are closed. An issue is said to be joined by parties on a particular fact making its proof necessary when its assertion is disputed by the opposing party…” What can be gleaned from this is that it is the pleadings of the parties that define and delimit the contours of their forensic hostilities. In other words, without the denial by an opposing party to an assertion made by a party, there would be no dispute. So it is only where facts are disputed that they are said to be facts in issue upon which issues are joined – Olufosoye v Olorunfemi (1989) 1 NWLR (Pt. 95) 26, Osolu v Osolu (2003) 11 NWLR (Pt. 832) 608, Adaka v Omessah (supra). All these go to show that the fact that a Defendant states his own side of a case does not necessarily make it new, particularly when the Claimant has told a contrary story in its Statement of Claim.

 

26.    For a Statement of Defence to be said to have introduced new material facts or new issues worthy of a Reply pleading, such issue or fact must be really new, novel to the Statement of Claim in that it was not existing therein and was therefore brought into existence or introduced for the first time in the Statement of Defence of the Defendant. The new fact or issue, both in content and materiality, must be further and additional to the Statement of Claim. See Egesimba v Onuzuruike (2002) LPELR-1043(SC). In the instant case, the allegations of facts on breach of contract by the Claimant prior to the supposed breach by the Defendants, including elements of frustration were not merely a rebuttal or denial of the facts contained in the Statement of Facts but to some extent the raising of a special defence that required a Reply pleading. See FRSC v Incorporated Trustees of Risk & Accident Prevention Society of Nig. (2020) LPELR-51271(CA), Ughutevbe v Shonowo & Anor (2004) LPELR-3317(SC). From a different spectrum, the allegations of abrupt termination of the overseas training, unilateral deduction of salaries and redeployment of the 1st Defendant without her input to another company were facts and or issues that went further or additional to the Claimant’s Statement of Facts. Such that the Claimant deemed it fit to make rebuttals to but in its Final Written Address, and in so doing introduced certain facts that did not arise from the previous two pleadings.

 

27.    The rebuttals in the Claimant’s address introduced facts on issues of discipline, what amounts to successful completion of training and that the fact that the 1st Defendant was an employee of the Dangote group not just the Claimant, in my humble view, were such that could well have been accommodated in a Reply pleading so that the justification highlighted by Counsel for deduction of DW1’s salaries depicted by exhibit D3 would have been supported by pleadings or rather emanated from facts contained in pleadings. See Bakare & Anor v Ibrahim (1973) 6 SC 205, Oshodi & Ors v Eyifunmi & Anor (2000) LPELR-2805(SC). Put differently, the Claimant knew or ought to have known that it proposed to negate specific allegations of breach of contract raised in the Defendants’ Joint Statement of Defence and lead evidence showing that they were untenable so it behoved on it while filing its Statement of Defence to the Counterclaim to have incorporated a Reply pleading to the Joint Statement of Defence for whatever it was worth. It is often said in law that it is better to err on the side of caution.

 

28.    The Claimant also had the option of controverting these allegations of its breach of contract during cross-examination of DW1, but then it would have elicited evidence not supported by pleadings. Except it was doing so to challenge, render unreliable the Defendants’ evidence of its breach of contract prior to the 1st Defendant’s breach. The Claimant however from the records of the Court felt it would be better to address these issues in its Final Written Address instead. With respect, no matter how brilliant Learned Counsel’s address is it cannot substitute for pleadings or take the place of evidence – Bature v Chedi & Ors (2021) LPELR-55178(CA), Oyeyemi & Ors v Owoeye & Anor (2017) LPELR-41903(SC).

 

29.    Now on the issue of exhibit C1 (Selection for Overseas Technical training letter) and exhibit D1 (offer of appointment letter) been construed as same documents because their contents are essentially similar. While I agree with  the submissions of the Learned Claimant’s Counsel that the contents of exhibits C1 and D1 are similar, which perhaps made the Defence Counsel make references to exhibit C1 when he intended exhibit D1, DW1 having denied receipt of exhibit C1, it need be reiterated as outlined in Counsel’s address that documents speak for themselves, and it does not lie on a witness or Counsel to vary or seek to vary its content with oral evidence or submission – Dantata v Dahboul & Ors (2016) LPELR-41264(CA). What I mean by this is that if the Court adopts Claimant’s Counsel’s submission that exhibits C1 and D1 should be construed as the same document, one may ask what the intention of the Claimant was when it issued exhibit C1 whose signatories are different from the signatories of exhibit D1. The heading, title or subject matter of exhibit C1 and exhibit D1 are also different, likewise certain components of their individual contents.

 

30.    With these highlighted differences, it can be safely presumed or inferred by the Court as permitted by Section 167 of the Evidence Act (as amended) that the intention of the Claimant in issuing exhibit D1 was simply to offer employment to the 1st Defendant, which the 1st Defendant from her evidence before the Court and her pleadings acknowledged receipt of. If the Claimant maintains that exhibit C1 is one and the same as exhibit D1, despite the 1st Defendant denying receipt of exhibit C1, the Claimant would not persist in bringing it in evidence and desire that probative value be attached to it. Since the Claimant asserts exhibit C1 was issued and availed to the 1st Defendant, the law requires that it proves same – Section 131 of the Evidence Act (as amended). In the absence of such evidence, the Court would place little weight or probative value on the contents of exhibit C1. Learned Claimant’s Counsel’s submission that exhibit C1 should be construed as same document as exhibit D1 is hereby discountenanced. I so hold.

 

31.    The fulcrum of the Claimant’s action against the Defendants is breach of the terms and conditions, obligations, covenants or undertaking contained in a training bond executed on 06.03.2016 (exhibit C2), although for the most part of its address, the Claimant kept referring to exhibit C2 as dated 04.03.2016. It is noticeable that the contents of exhibit D1 (offer of appointment) laid a foundation for the issuance and execution of exhibit C2. The second paragraph of exhibit D1 reads “…You will undergo class room training in design and detailed engineering. Further, you will also undergo on-the-job training with Engineers India Limited (EIL) New Delhi, India, where you will be trained on-the-job in your own area of discipline. Your training will be for a period of one year and it will be reviewed periodically.” The part on which the Claimant anchors its claim is paragraph three which states “…The company will arrange your travel, food and stay during your period of stay in India. As the company will be making substantial investments on you to develop your skills and capabilities, you will be required to execute a five (5) years bond of service with the company after the completion of your training. The security bond will have to be executed before the commencement of the training…”

 

32.    The Claimant claims and maintains that it trained the 1st Defendant at Engineers India Limited, New Delhi, India and owing to the expenses incurred in sponsoring the training it required the 1st Defendant to remain in its employment for a period of five (5) years post the training. As the Claimant’s Counsel puts it, the Claimant is neither a Father Christmas nor a charitable organisation so where there is a breach of contract, the Court is empowered to award damages for such breach. In the instant case, the refund of the expenses incurred by the Claimant in training the 1st Defendant is a foreseeable and natural consequence of the breach of exhibit C2. Since DW1 knew or ought to have known that where the Claimant successfully trains her for a year in design and detailed engineering at India, she would be required to work for the Claimant for five (5) years or refund the expenses incurred for her training.

 

33.    This is so because in law “A person who signs a document is bound by it. Put differently, in the absence of fraud, duress, or plea of non est factum, the signature of a person on a document is evidence of the fact that he is either the author of the contents of the document that are above his signature or that the contents have been brought to his attention. It does not matter that he did not read the contents of the documents before signing it.” See Otti v Excel-C Medical Centre Ltd (2019) 16 NWLR (Pt. 1698) 274. Exhibit C4 (resignation letter) shows that 1st Defendant resigned from the Claimant’s employment on 04.12.2017 barely a year after the training. This is clearly in breach of the introductory clauses 1 and 2 of exhibit C2, however, the Defendants maintain that the Claimant would only be entitled to recover damages or the expenses allegedly incurred in training the 1st Defendant, where the breach of exhibit C2 was due to no fault of it. That the Claimant was first in breach of exhibit C2 and D1 in abruptly terminating the training after nine (9) months instead of a year as the bond required.

 

34.    Also, that the Claimant on the return of the 1st Defendant to Nigeria redeployed DW1 to another company without her input which breached exhibit D1. That the last straw that broke the 1st Defendant’s resolve was the unilateral deduction from her salaries for six (6) months by the Claimant without justification especially in the face of the fact that she had sought leave and obtained approval from officials of the Claimant to be absent as evinced by exhibit D4 (an email trail between the 1st Defendant and certain officials or representatives of the Claimant spanning between 24.06.2016 and 06.07.2016 on the subject matter of leave for the 1st Defendant to attend her wedding). The Defendants in their pleadings, in paraphrase, had used the term that the actions of the Claimant were such that frustrated the performance of the contract or bond. In law “frustration occurs in situations where after the formation of a contract, events occur which make performance of the contract impossible, illegal or something radically different from that which was in contemplation of the parties at the time they entered it. The effect of frustration is that both parties are discharged of their obligations under the contract” – Zee Agro Livestock Product Ltd v Springfield Agro Ltd (2022) LPELR-57365(CA).

 

35.    See also Abdullahi & Anor v Lead Automobile Co. Ltd (2020) LPELR-51940(CA), WECO Engineering Construction Co. Ltd v Dufan (2019) LPELR-47211(CA). The Court in the case of Ezudyemoih v Turkish Airlines Ltd (2023) LPELR-60297(CA) emphasised the issue of the intervening event being one beyond what was contemplated by the parties for frustration to be said to take place when it held that “frustration of contract is premature determination of an agreement between parties, which was lawfully entered into and which was prematurely determined owing to the occurrence of an intervening event entirely beyond what was contemplated by the parties when they entered into the agreement. In such circumstance which is not due to the fault of either of the parties they are discharged from the any liability arising from the contract. See National Revenue Mobilization Allocation & Fiscal Commission v Johnson (2019) 2 NWLR (Pt. 1656) 247…” From these dictums and judicial authorities, it would seem to me that what the Defendants mean in using the word “frustrated” is that the Claimant acted negligently in not keeping to vital terms of the contract between the parties so as to make the performance of the contract visible.

 

36.    The Supreme Court in Best (Nig.) Ltd v Blackwood Hodge Nig. Ltd & Anor (2011) LPELR-776(SC) held “There is no gain-saying the point that a breach of contract is committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or incapacitates himself from performing same or in a way back down from carrying out a material term.” See Adeoti & Anor v Ayorinde & Anor (2001) 6 NWLR (Pt. 709) 336. Similarly, in Cameroon Airlines v Otutuizu (2011) LPELR-827(SC), the Court held “a breach of contract means that the party in breach has acted contrary to the terms of the contract in the instant case by performing a contract negligently and not in accordance with its terms.” See Pan Bisbilder (Nig.) Ltd v FBN Ltd (2000) 1 SC 71. Now it is clear that in law that a contract can be discharged by breach, but since both parties are alleging breach of contract, one as the basis for the discharge of the contract, the other as the basis for seeking award of damages, the duty of Court is to from the evidence before it ascertain which party was first in breach or persisted in breaching material terms of the contract.

 

37.    From the totality of the evidence and pleadings before the Court both parties are silent on the actual date the overseas training of DW1 in design and detailed engineering began or commenced in India and the exact date of her trip to India. Learned Claimant’s Counsel in his final address gave an inference, perhaps drawing from the date of execution of exhibit C2 that the training began in March 2016 and ended February 2017. The Defendants who alleged an abrupt termination of the training after nine (9) months and had pleaded and frontloaded a Whatsapp message communication by one Mr Udom, supposed official of the Claimant, notifying trainees on 01.01.2017 of management’s decision requiring trainees to stop going to EIL a day after the communication and of a meeting after lunch with Mrs Payal, did not tender in evidence the said Whatsapp message. This ordinarily would have been fatal to the Defendants’ case but for the fact that the Claimant did not rebut DW1’s testimony as per her witness statement on oath on this point by filing a Reply pleading to the Defendants’ Joint Statement of Defence or eliciting evidence to controvert DW1 during cross-examination on this point.

 

38.    Though as it stands there is no documentary evidence to corroborate the Defendants’ stance of abrupt termination of DW1’s overseas training, DW1’s testimony as per her written deposition remains unchallenged and the law regards unrebutted, unchallenged facts as deemed admitted requiring no further proof – Airtel Networks Ltd v Plus Ltd (2020) 15 NWLR (Pt. 1747) 235, CBN v Dinneh (2021) 15 NWLR (Pt. 1798) 91 at 121, D. In addition, the Court can take judicial notice of all processes or documents in its records, like the printed Whatsapp message that was frontloaded alongside the Defendants’ pleadings and draw inferences from it in reaching its decisions – Saraki v Kotoye (2001) 48 WRN 1, Jubok Int’l Ltd v Diamond Bank Plc (2015) 7 WRN 1 at 50, lines. 35-40. So it goes without saying that assuming the 1st Defendant’s overseas training at Engineers India Limited in design and detailed engineering commenced March 2016 to last for year, from DW1’s unrebutted evidence, it terminated after nine (9) months thus amounting to a breach of exhibits C2 and D1 respectively.

 

39.    In other words, the Claimant was first in breach of a material term of exhibit C2 and D1 that stipulated that the overseas training would be for a year. Meaning that the Claimant acted contrary to the terms of the training bond of 06.03.2016 and the offer of appointment letter (contract of employment) dated 04.02.2016, that is, by performing the contracts not in accordance with the term, which translated to a wrongful repudiation of the training bond. See Nwaolisah v Nwabufoh (2011) LPELR-2115(SC). In Iweka v SCOA (Nig.) Ltd (2000) LPELR-1563(SC) it was held that the cause of action for breach of contract accrues when the breach is committed and not when damage is suffered. What this means is that the fact that DW1 did not immediately end or consider as discharged exhibit C2, does not deny the fact that the cause of action for the breach accrued on 01.01.2017, the date Mr Udom communicated the Claimant’s management decision to stop the training. The Defendants went on to give unchallenged evidence that the 1st Defendant was redeployed by the Claimant to a company within the conglomerate the Claimant belonged to sometimes between May and June 2017 as evinced by exhibit D5. DW1 also gave unrebutted evidence as evinced by exhibits D2 and D3 that the Claimant made deductions from DW1’s salaries.

 

40.    Section 5(1) of the Labour Act provides “5. (1) Except where it is expressly permitted by this Act or any other law, no employer shall make any deduction or make any agreement or contract with a worker for any deduction from the wages to be paid by the employer to the worker, or for any payment to the employer by the worker, for or in respect of any fines: Provided that, with the prior consent in writing of an authorized labour officer, a reasonable deduction may be made in respect of injury or loss caused to the employer by the willful misconduct or neglect of the worker…” The Claimant has not adduce evidence on any wilful misconduct or neglect by the 1st Defendant that occasioned it to make deductions to her salaries for six (6) months, that is, between June and November 2017. Learned Claimant’s Counsel’s submission that it was because she absented herself for 28days during the training is not backed by any pleading or evidence and goes to no issue. Besides, the Defendants have adduced documentary evidence (exhibit D4) that DW1 applied for and obtained leave to be absent as her wedding was about to take place.

 

41.    In the presence of such approval of her leave of absence, can DW1’s absence during the training be categorised as wilful misconduct or neglect to warrant the deductions subsequently made to her monthly emoluments? I do not think so. Additionally, the Claimant did not produce before the Court any document or handbook that empowered it to undertake such deductions such that it can be said that vide such document it contracted outside the provisions of Section 5 of the Labour Act. The Claimant’s conduct in making such deductions was not only unlawful but a breach of a fundamental or material term of its contract of employment with the 1st Defendant which translated to a constructive dismissal of the 1st Defendant. In other words, in the light of this evidence, regardless of the wordings and reasons given by the 1st Defendant in exhibit C4 for her resignation, it can well be said that the Claimant constructively dismissed the 1st Defendant from its employment by making persistent deductions from her monthly emoluments as a fine or punitive measure for what its official had permitted the 1st Defendant to do. Thus making the work environment not conducive for DW1. DW1 was constructively dismissed. I so find and I so hold.

 

42.    On the issue of redeployment or secondment, Section 10(1) of the Labour Act states “10. (1) The transfer of any contract from one employer to another shall be subject to the consent of the worker and the endorsement of the transfer upon the contract by an authorized labour officer…” Exhibit D5 reveals that DW1 was transferred or redeployed or as the Claimant prefers to put it seconded to a company dealing with the fertilizer production within the conglomerate it belonged to without her consent or input, exhibit D5 was a directive. Exhibit D1 does indeed show that there was a remark that was suggestive of a disguised employment in that it was stated “We look forward to your joining the family of employees of the Dangote Group and we wish you a long and rewarding career”. To my mind, however, this does not erode the express term captured in the first paragraph of exhibit D1 which reads “Congratulations! You have successfully gone through the selection process. We are pleased to offer you employment with our company, as a Management trainee with effect from March 7, 2016…” Claimant’s Counsel’s submission that the redeployment of DW1 was in the same field of study is not backed by evidence or supported by pleadings and equally goes to no issue. I so hold.

 

43.    Learned Claimant’s Counsel has argued that in a secured transaction, a default in the agreement makes the guarantors liable, and their liability arises when the default occurs. I am in agreement with the position of the law canvassed in the said submission but from the totality of the evidence before this Court, for the liability of the 2nd and 3rd Defendants to arise or become enforceable, the failure of performance or default must be as a result of no fault of the Claimant. The preceding considered findings of this Court following its evaluation of the evidence adduced by the parties before the Court indicate that the failure of performance of exhibit C2 or the default of the restraint of trade covenant therein were as a result of initial breach of material terms of the contract by the Claimant. It is the law that he who seeks equity must do equity. The Claimant, with respect, cannot expect the Court to turn a blind eye to its breaches of material terms of exhibits C2 and D1 respectively in a bid to enforce the alleged breach of exhibit C2 by the 1st Defendant. Equality is equity, he who comes to equity must come with clean hands.

 

44.    The Claimant has equally argued that its claim for refund is in the realm of special damages which the law requires to be particularised in pleadings and strictly proved. In law, the loss of revenue is recoverable if they were foreseeable and natural result of a breach and can be estimated with reasonable accuracy. It is nevertheless noteworthy that the said claim is predicated on the fact and success of the Court finding that the Defendants are in breach of exhibit C2 with no fault of the Claimant in seeing the bond repudiated. This unfortunately is not the case in the instant suit, as the findings of this Court from the totality of the evidence adduced reveal that the Claimant breached exhibit C2 in abruptly terminating the overseas training before the duration stipulated in the contract for same ran out without any reasonable justification for same. Also, the Claimant was equally in breach of exhibit D1 and the provisions of Sections 10(1) and 5(1) of the Labour Act in redeploying or transferring the 1st Defendant to another employer without her consent or input as well as deducting from her monthly salaries for six (6) months, thereby transmuting the 1st Defendant’s resignation to constructive dismissal.

 

45.    Meaning that the Claimant by its conducts fundamentally breached the contract between it and the 1st Defendant severally making the contract between them was discharged by such breaches. It is in the light of the foregoing that the Court finds and resolves issue one in the negative, all the claims of the Claimant are accordingly dismissed for want of satisfactory evidence in proof of same. The claims for cost and interest are largely predicated upon the success of the Claimant’s claims and lies at the discretion of the Court to award, which discretion must be exercised judicially and judiciously. Given the circumstances and findings of the Court in relation to the other claims of the Claimant it is the considered view of this Court that it would be injudicious to make any assessment for cost or interest as they would have not basis or foundation to rest on. For the purpose of reiteration and clarity, the Claimant’s reliefs one, two and three fail and are dismissed for the reason that the Claimant was first in breach of exhibit C2, and its subsequent breaches of exhibit D1 culminated in the constructive dismissal of the 1st Defendant. Relief four fails because it would be out of place in law to compensate a party for breach of contract when the breach was initiated by the party seeking the compensation for it is law as expressed in the maxim “ex turpi causa non oritur action”. I so find and I so hold.

 

46.    This now brings the Court to consideration of the claims of the 1st Defendant/Counterclaimant. The law requires the Counterclaimant to prove her case on the balance of probabilities to entitle her to the reliefs sought. See Umaru v Paris & Anor (2021) LPELR-56309(CA) Ekweozor & Ors v Reg. Trustees of The Saviours Apostolic Church of Nig. (2020) LPELR-49568(SC), Iyang v CCECC (2020) LPELR-49694(CA). The Claimant/Defendant to the counterclaim has argued that the Counterclaimant’s claim for damages for deduction of her salaries is in the realm of special damages which the law requires to be specifically pleaded and strictly proved. The Court is very much in agreement with the position of the law canvassed by the Defendant to the counterclaim’s Counsel on this point. Nonetheless, a careful examination of the Counterclaimant’s claims reveal that she is seeking general damages for breach of contract simpliciter or as she puts it “damages for committing several fundamental and material breaches of the contract between both parties”. Having taken ample time to enunciate or articulate these fundamental or material breaches of the contract between the Counterclaimant and the Defendant to the counterclaim, I shall at this stage simply highlight them.

 

47.    In NCC v Motophone Ltd & Anor (2019) LPELR-47401(SC), the Supreme Court held “in an action for breach of contract, the measure of damages is the loss flowing naturally from the breach and is incurred in direct consequence of the breach.” See also Agu v General Oil Ltd (2015) LPELR-24613(SC), MTN v Corporate Communication Investment Ltd (2019) LPELR-47042(SC). The object of an award of general damages is to compensate the Claimant, as far as money can do so, for the damages, loss or injury he or she has suffered. The guiding principle is restitution in integrum. It envisages that a party which has been damnified by the act which is called in question must be put in the position he or she would have been if he or she had not suffered the wrong which he or she is now being compensated for. That is, the loss inevitably and unavoidably flowing from the breach – MTN v Corporate Communication Investment Ltd (supra).

 

48.    The Counterclaimant alleges that the Defendant to the counterclaim abruptly terminated her overseas training prior to the one year stipulated period contained in the contract (exhibit C2). That the Defendant to the counterclaim redeployed her without her input or consent to another company to work between May and June 2017. Also, that the Defendant to the counterclaim made deductions from her salaries for the months of June to November 2017 thus forcing her to resign from the Defendant to the counterclaim’s employment. These pieces of evidence were never rebutted or controverted. These breaches were fundamental as they are in contravention of express and implied material terms or obligations of the contractual relationship between the Claimant/Defendant to the counterclaim and the 1st Defendant/Counterclaimant. Being breaches of the contractual relationship between the Counterclaimant and the Defendant to the counterclaim, it implies that damages should naturally flow in the Counterclaimant’s favour. The law is settled that a fundamental breach of contract denotes a performance totally different from that which the contract contemplated and entitles the other party to not only damages but to refuse further performance of the contract – DHL Intl Nig. Ltd v Eze-Uzoamaka (2020) 16 NWLR (Pt. 1751) 445 at 486, E-G.

 

49.    In Unity Bank v Ahmed (2019) LPELR-47395(SC), it was held “It must not be emphasised that where there is a breach of the contractual relationship by the bank, damages must naturally follow. A Judge may with reason make an award of any such sum as he considers the circumstances of the breach of contract warrants although there has been no proof of any actual loss. See Allied Bank of Nigeria Ltd v Jonas Akubueze (1997) 6 SCNJ 116. The award of damages is inescapable where there is proof of breach.” See NITEL Trustees Ltd & Anor v Syndicated Investment Holding Ltd (2022) LPELR(SC). On the authority of the above dictum the Court assesses damages in the sum of N500,000.00 (Five Hundred Thousand Naira) only in favour of the Counterclaimant for the fundamental breaches of the contractual relationship by the Claimant/Defendant to the counterclaim. These fundamental breaches were such that resulted in the constructive dismissal of the Counterclaimant. I so find and I so hold.

 

50.    Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 empowers the Court to award interest on judgment sum at the minimum rate of 10% per annum. The Court thus awards 10% interest per annum on the judgment sum until it is fully liquidated. I so hold. The last relief of the Counterclaimant is a consequential omnibus relief which the Court is empowered to grant when it flows naturally from the main relief granted by the Court or found to be successful. It is usually granted to give effect to the judgment or order(s) of the Court. It is consequential because it flows as a result of the judgment of the Court. See Ishola v UBA Ltd (2005) All FWLR (Pt. 258) 202 at 213, Inakoju & Ors v Adeleke & Ors (2007) 4 NWLR (Pt. 1025) 427, Nwagu v Fadipe (2012) LPELR-7966 and INEC v Youth Party (2021) LPELR-54802(CA). In the light of the facts of this case and the success of the other claims of the 1st Defendant/Counterclaimant, I see no reason to grant or make any consequential order or further orders with respect to the counterclaim. I so hold.

 

51.    In conclusion, issue two is resolved in part in favour of the 1st Defendant/Counterclaimant, and judgment is entered in favour of the 1st Defendant/Counterclaimant for the reasons above enunciated. For purpose of clarity and reiteration, the claims of the Claimant/Defendant to the counterclaim fail and are all dismissed. With respect to the Counterclaim, the orders of the Court are:

 

a)     The Claimant/Defendant to the counterclaim is directed to pay the Counterclaimant the sum of N500,000.00 (Five Hundred Thousand Naira) being damages for committing several fundamental and material breaches of the contract between both parties.

 

b)    The Claimant/Defendant to the Counterclaim is directed the pay 10% interest per annum on the judgment sum until the whole sum is fully liquidated.

 

52.    No orders as to cost, parties to bear their respective costs.

 

53.    Judgment is accordingly entered.

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge