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National Industrial Court

Capt. Udumeberaye Umusu -VS- Azikel Air Limited & 2 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D. DAMULAK

ON THE 26TH DAY OF FEBURARY 2020

SUIT NO: NICN/ABJ/340/2018

BETWEEEN    

CAPT UDUMEBERAYE UMUSU                        ……CLAIMANT/COUNTER-DEFENDANT

AND

  1. AZIKEL AIR LIMITED
  2. AZIKEL GROUP                                         ….. DEFENDANTS/COUNTER-CLAIMANTS           
  3. DR. AZIBAPU GODBLESS ERUANI                                                                                           

 

REPRESENTATIONS:

Enewa Rita Chris-Garba  for the Claimant/counter- defendant.

A.I. Lemu  for the Defendants/Counter-Claimants.

 1.0 INTRODUCTION:

  1. By a General form of Complaint filed on the 3/12/2018, the Claimant claims against the Defendants the following reliefs:
  2. A Declaration that the Defendants’ failure, refusal and deliberate obstruction and refusing the claimant to proceed on his accumulated off days for a total of 180 days or failure to convert same to payment is unlawful, illegal and against the extant Labour law.
  3. A Declaration that the conversion of the repayment of the Claimant training fees made in the US Dollars to black market rather than the prevailing official rate at the time the payment was made is unlawful and illegal.

iii.                A Declaration that the monthly repayment of the fees spent on the Claimant training in the USA in excess of 80% from his monthly salaries is unlawful, illegal and a contravention of the extant Labour Law.

  1. A Declaration that the conversion of the training fees paid for the Claimant to black market rate than the prevailing official rate at the time of payment of the fees is unlawful and illegal
  2. A Declaration that the arbitrary and unauthorized deduction from the Claimants’ salaries and the continuous withholding of his salaries for these moths are unlawful and illegal.
  3. A Declaration that the failure to remit the statutory Monthly Income Tax and the Contributory Pension Scheme of the Claimant to the appropriate bodies by the Defendants is illegal, unlawful and contravention of the extant laws.

vii.              A Declaration that the Claimant is entitled to the sum of $45,500.00 and N2,000,000.00 only being payment for the accumulated 180 off days as per the Claimant monthly salary.

viii.            An Order compelling the Defendants to immediately pay 18% of the 33 Months Salaries of the Claimant being the Claimant’s Pension Contribution in accordance with the extant laws, contract of employment and Pension Act.

  1. An Order compelling the Defendants to immediately pay the sum of $45,000.00 and N2,000,000.00 only  being the 180 days accumulated off days equivalent to five months’ salary of the Claimant.
  2. An Order of this Honourable Court mandating the Defendant to pay to the Claimant all his outstanding entitlements which includes salaries, overtime, deduction and allowances in accordance with the contract of Employment which was issued to the Claimant as follows:
  3.             The Salary deduction for the month of February 2012 which is $850
  4.             Duty allowance for the month of March and April 2015 which is N120,000,00

                            iii.            The sum of N90,000.00 Monthly representing Local Allowance for the month of February, March, May, June and July 2016 totalling N450,000.00.

  1.             Total Outstanding salaries in Naira which was not paid as a result of non-implementation of official exchange rate by the Defendants for the months of June, July, August and September 2016 respectively which is N4,045,500.00
  2.             Total outstanding off duty worked for to be monetized as overtime but was paid in dollars is $71,850.00
  3.             The accumulated salaries for the month of February, March and April 2017 respectively which is N6,000,000.00

                          vii.            The sum of N100 Million Naira as damages for the various breaches to the employment contract by the Defendants.

                        viii.            The sum of Two Million Naira only representing the cost of this action.

 

  1. The Defendants entered appearance by filing their Memorandum of Appearance on the 6th February, 2019. They filed their joint statement of defence and Counter-claim as well as other accompanying processes on the 21st January, 2019, the claimant also filed a Reply to the Defendants/Counter-Claimants’ Defence and Counter-Claim on the 9th May 2019 and in the same vein his Amended Witness Statement on Oath. The Defendants/Counter-Claimants thereafter also filed a Reply to the Claimant’s Defence to their Counterclaim on the 16th May 2019.

 

2.0 FACTS OF THE CASE

  1.  The Claimant was employed by the defendants vide a letter dated 30th July 2014 as a Pilot on a two year contract basis. Claimant also signed a two years training bond with the defendants from September 2016. The terms and conditions of each employment were stipulated in his contract and bond. It is his case that the defendants failed to honour the terms and covenant agreed upon by both parties. It is also claimant’s case that the defendants converted the Dollars to be spent on his training under the bond into Naira at the Black Market exchange rate instead of the official exchange rate.

3.0 CASE OF THE CLAIMANT.

  1. The Claimant testified as CW1 in line with his Amended Witness Statement on oath filed on the 9thMay 2019 as follows:

I entered into contract of employment with the 2nd defendant to provide services for the defendants as a Pilot. I had a contract of employment with the defendants which clearly contained the terms and conditions but the defendants refused to honour and implement same. My schedule flight with the defendant is eight (8) weeks on duty and four (4) weeks off duty in accordance with my contract of employment but my off duty was denied me for the whole period of two years except on five occasions when I insisted.

I had a total of 150 accumulated off days in which I had worked at the end of my two year initial contract appointment and it is equivalent to my five (5) month salary. I also applied to the Head of Human Resources and Administration of the Defendant to be allowed to enjoy my cumulative off days or same should be commuted to salary but it was not approved.

  1. I agreed with the defendants to train on Helicopter at a total cost fee of $61,718 which was to be paid to Ocean Helicopters and Helinet Aviation as my training fee and deducted from my salaries but same was also converted at black market rate of N423 to $1, amounting to N26, 106, 714. 00instead of the official rate which was N306.00 to $1; amounting to 18,885,708.00 at the time. I officially complained against the conversion of my training fees which was converted to the black market rate instead of the prevailing official rate at the time, but I was scolded and termed ungrateful by the defendant.
  2. When it became imperative that I undergo instrument training covering additional sums of $2000, $4800 and $9000 respectively, these amounts were again converted to Naira based on black market rate of N475 to $1 amounting to N7, 505, 000.00 and for same to be deducted from my monthly salary. Also that my total fees paid as computed by the Defendant at November 2016 stood at N32, 289,718.00 instead of N23,720,508.00 and recoverable deductions were to commence in the month of September 2016 for a period of two years before I appealed for a reduction in the amount to be deducted in line with the relevant provisions of the extant labour law and for the deductions to be spread over the years.However the defendant decided to spread the deduction over three years which is still far above 1/3 of my monthly salary allowed by the law.

 

  1. My terms of contract of employment with the defendant provides that my consolidated salary is denominated in the USA Dollars or its equivalent in Naira at the prevailing official exchange rate. The defendant was no longer paying me in dollars neither was the prevailing Naira official exchange rate, instead, the Naira rate was pegged at N200 to $1 even when the official exchange rate went as high as N315 to $1. I was paid the sum of N2,000,000.00 instead of N2,822,500.00 on 29thJune 2016, N2,000.000.00 instead of N3,125,000.00 on 29thJuly 2016, N2,000,000.00. My outstanding off duty for the month of January, April, July, October 2015, July  and October 2016 respectively which I worked for to be monetised as over time but was not paid by the defendants are $17,000.00 in January, April, July 2015 respectively , $20,000.00 in October 2015, N6,250,000.00 in  July 2016 and N4,000,000.00 in October 2016.

 

  1. The terms of my contract of employment provides that my monthly salary to be paid net after tax and other deductibles such as Pension Contributory Scheme but the defendants had not been remitting my tax and pension deductions to the appropriate bodies after payment of my salaries for several months.

I approached the Federal Inland Revenue Services (FIRS) for the issuance of my Tax Clearance Certificate , but I was denied the certificate on the ground that the defendants had not been  remitting my tax and the breach thereof affected an important official assignment which I was  pursuing at a huge personal cost and the future of my family. I equally visited the National pension Commission (PENCOM) to inquire the position of my Retirement Saving Account (RSA) and I was informed that the defendant had not been remitting any money towards my RSA, thus denying me the opportunity to save towards my future retirement as statutorily required of all employers of labour.

 

  1. As at January 2017, I applied to the 3rddefendant to be on leave until the defendant Helicopter is brought back to service which was going to take a month but was given 14 days verbally and for me to return for a maintenance exercise on the helicopter which was consistent which the provisions of the contract of employment. While I was on the 14 days, I need additional 28 days because I was bereaved but the defendants denied me.
  2. The defendants had breached the terms of my employment severally for over two years. Consequently, I spoke with the 3rd defendant and he asked me to write to the 2nd defendant Company’s General Manager but the reply I received from the 1st defendant’s Head of Human Resources, Finance and Administration was that I should not hold the defendants to hostage and that I should return to continue  my  flight irrespective of my state of mind and on 5th February 2017, prior to the end of two week of my off days that I was granted, I wrote to the 1st  defendant’s Head Human Resources Finance and Administration requesting for more time to enable  me recuperate from the various tragedies I suffered and requested for additional off days from my outstanding off days till 1st March 2017. Despite the fact that I had written clearly to indicate that the lack of attention given to my complaint had adversely affected my state of mind to fly, the reply I received from the defendant convinced me that the defendant was not interested in attending to my issues and on the 7th March 2017, I received a letter from the 1st defendant’s Head, Human Resource Finance and Administration titled “Letter of Absence” threatening me with dismissal and asking for my written explanation for my unauthorised leave within 24 hours.
  3. Sequel to this, I lodged a formal complaint with the Federal Ministry of Labour and Employment, Abuja over the unfair Labour Practices against me by the Defendant and consequently, the defendant was invited to a Mediation meeting at the instance of the Federal Ministry of Labour and Employment, Abuja on the 28th day of March, 2017 wherein the defendants were represented by the 1st defendant’s Head, Human Resource Finance and Administration. A resolution was reached and documented at the said meeting in a Memorandum of Understanding (M.O.U) duly signed by the parties. The  Head, Human Resource Finance and Administration who represented the defendant at the Mediation Meeting and executed the M.O.U promised to take the issues with the Defendants and that the matter will be laid to rest within seven working days after Mediation meeting  which was held on the 28th March 2017. I made several efforts to reach out to the 3rd defendant who was said to be away in the USA for an appointment in accordance with the M.O.U but the 3rd defendant was neither picking nor returning my calls. I am aware of several follow up efforts made by the official of the Federal Ministry of Labour and Employment, Abuja  to persuade the Defendant to implement the M.O.U which was executed but the Defendants showed unwillingness to honour it.

 

  1. I have suffered and still suffering untold mental and psychological hardship and frustration of my career as a Pilot due to the acts and activities of the Defendants as I was compelled to fly after receiving unpalatable news and the defendant intentionally and deliberately made deductions of 80% of my salary to make me feel pained knowing I will not be able to cope with the remaining salary.
  2. The following documents were tendered and admitted in evidence:
  3. Offer of appointment –Exhibit CUU1
  4. Employment Contract with the Defendant-Exhibit CUU2
  5. Non-Remittance of Pension Contribution by Azikel Group/Azikl Air-Exhibit CUU3
  6. Email of 7/7/2016 and 21/12/2015-Exhibit CUU4a and 43
  7. Email of 7/2/2017-Exhibit CUU5
  8. Email of 7/7/2016 –Exhibit CUU6
  9. Email of 7/7/2016 –Exhibit CUU7
  10. Customer Delegation of Authority- Exhibit CUU8
  11. Email of 22/2/2017-Exhibit CUU9
  12. Email of 16/2/2017-Exhibit CUU10
  13. Email of 15/2/2017-Exhibit CUU11
  14. Email of 28/2/2017-Exhibit CUU12
  15. Email of 1/3/2017-Exhibit CUU13
  16. Re-Non remittance of Pension Contribution by Azikel Group/Azikel Air Limited 1/4/2017 –Exhibit CUU14
  17. Re- Non remittance of PAYE by Azikel air dated 13/9/2017-Exhibit CUU15
  18. Non-remittance of PAYE Tax by Azikel group and Azikel Air dated 21/9/2017-Exhibit CUU16
  19. MOU between Defendant and Claimant dated 28/3/2017-Exhibit CUU17
  20. Letter of Absence –Exhibit CUU18
  21. Standard Charted Bank of Nigeria Plc Price quotation-Exhibit CUU19
  22. Claimant Statement of account with Standard Charted Bank –Exhibit CUU20
  23. Training Bond between Claimant and Defendant dated 1/9/2016-Exhibit CUU21
  24. Contribution of Compliance pursuant to Section 84 of Evidence Act –Exhibit CUU22.
  25. Under cross examination, the claimant testified as follows:

By Exhibit CUU2, the contract was for 24 months. The 24 months was completed. It   was after Exhibit CUU2  that we executed Exhibit CUU21. We had issues with the Defendant before Exhibit CUU21.The issue was deduction of N850 in my February 2016 salary without my consent. My duty allowance in February and March 2015 was also deducted without my consent.  The Defendant said it was inappropriate use of Company Security to make deduction therefore made February and March 2015 Salaries. During the period of the 24 months Contract, the defendant did not treat me well and fairly. From Exhibit CUU2, my salary is $8500. I was being paid $10,000 per month by the defendants between October 2015 and August 2016.

 

  1. After Exhibit CUU2, my contract was not exactly regulated by Exhibit CUU2. I remained in the employ of the defendant after July 2016 up to September 2016 when I returned the airplane to the new owners, BAA. My salary by Exhibit CUU 21 is N2, 000,000.00.By the bond, my repayment was expressed to be in Naira. I now work with TAK Aviation Ltd. I had also worked with NESTO Aviation Services Ltd between 5/6/2017 to 3/1/2019. I had a Retirement Savings Account when I was working with the defendant. My Pension Administrator is Stanbic IBTC. I submitted that account to the defendant in 2016, I was given a form by the defendant. My contribution to the pension was 8% of the 18%. It is 18% of my salary. I did contribute my 8% because it is not in my power to make contribution and I was not presented a pay slip out of the $10,000. I have no document to show any contribution to the pension scheme. When my salary was $10,000, I was paid $10,000. When my salary was N2,000,000.00 , I was paid N1,820,000.00.

CW1 was re-examined and he stated thus: “ I was paid my salary between August  and September 2016”

  1. A Subpoena Duces Tecum was issued on the 9thMay 2019 by this Court to Rufina Ajalie (The Head, Human Resource Finance and Administration) of  the 1st and 2nd defendant Company to produce the following documents:
  2. The Payslips of the Claimant evidencing tax deductions/other deductions from August 2014 to April 2017
  3. Official E-mail Correspondence of the claimant with the Defendants in this suit.

Rufina Ajalie testified as CW2 on 9th July 2019. He produced Official E-mail Correspondence of the Claimant with the Defendant in this suit. The Court admitted the 17 emails in evidence as Exhibits Subpoena 1-17 and the schedule attached there in Exhibit Subpoena 18.

CW2 informed the Court thus:

“I do not have the payslip of the Claimant. I have the official emails. I did not bring the payslip because as a company we do not give payslip.

 

4.0   THE DEFENCE AND COUNTER-CLAIM

 

  1. The defendants Counter claim against the Claimant as follows:
  2. A Declaration that the Defendant to the Counter-claim has breached the terms of his Training Bond having left the Defendants voluntarily by absconding , absenting himself, neglecting, failing and/or refusing to continue to work for the Counter-Claimant without reasonable cause having taken the benefits of the Training Bond executed between himself and the Counter-Claimants
  3. A Declaration that the Defendant to the Counter-claim having worked  for a period of less than one month upon completion of the Training subject of the Training Bond is liable to return the full amount incurred for his Training under the Bond and the additional  sums requested by him for additional training in the total cumulative sum of $77,518.00 (Seventy Seven Thousand, Five Hundred and Eighteen Dollars Only)
  4. An Order of this Honourable Court directing the Defendant to the Counter-claim to pay to the 1st Counter-Claimant forthwith as follows:
  5.             The Total cumulative sum of $77,518,00 (Seventy Seven Thousand, Five Hundred and Eighteen Dollars Only ) being the full amount incurred for his Training Under the Training Bond and the additional sum requested by him for additional training as mentioned in Paragraph 17 of the Defendant to the Counter-Claimant’s Statement of Defence before this Honourable Court.
  6.             The sum of N200,000,000.00 (Two Hundred Million Naira) as general damages for breach of the Training Bond.
  7. 10% interest on the judgment sum from the date of judgment till final liquidation on the Judgment sum.
  8. The sum of N3,000,000.00 (Three Million Naira Only) as cost of prosecuting the Counter Claim.
  9. Nsonwu Cythia Ugonma, Head, Human Resources, Finance and Administration of the 1stand 2ndDefendant testified as DW1 for the defendants in line with the statement of defence as follows:
  10. The 1stdefendant which is a subsidiary of the 2nddefendant entered into a contract of employment with the claimant as a fixed wing Pilot with a fix tenure of  24 months from 30th July 2014 which expired by effusion of time on the 29th July 2016. All the terms of the contract entered into on 30th July 2014 were honoured by the defendants and whom through their benevolence offered more incentive gratuitously to the Claimant and all through the tenure of the said contract, the claimant never raised any issue during the subsistence of the contract. Upon the expiration of the claimant’s contract, parties reverted to the ad-hoc arrangement which existed prior to executing the expired contract by which the claimant was only paid for services rendered without any conditions of service.
  11. Clause 1(b) of the expired contract of employment provided for a full time contract of employment with a scheduled rotation of eight (8) weeks and four (4) weeks off duty provided that the choice of days on leave is to be requested to the Chief Pilot or anyone who holds responsibility on his behalf and approved by the Group President.
  12. That the Claimant never accumulated a total of 150 off days or any other unutilized off days and it was never a stipulation in the expired contract of employment that the claimant shall be paid in lieu of any unutilized off days in the equivalent of his monthly salary or any other form of compensation.
  13. That the 1st Defendant entered into a Training Bond under which the 1st  defendant as employer would send the claimant to train as an Helicopter.  The Claimant became contractually bound to the 3rd defendant for a period of 2 years as an employee pursuant to the Training bond on a fixed Salary of Two Million Naira (N2,000,000) only due to the scarcity and difficulty in sourcing for foreign exchange prevalent during the period as well as the provision of the CBN Act which prohibits the payment of Nigerian employees in Foreign Currency.
  14. There was no controversy at all in respect of the cost of the Helicopter Training as it was expressly stated in the Training Bond both in its dollar sum and the agreed Naira equivalent which the claimant understood, agreed and signed voluntarily as reflected on page 2, paragraph v of the Training Bond and acknowledged by the Claimant’s email dated 8thday of September 2016 thanking the 3rd defendant.
  15. The defendant made available the sum requested by the claimant to undergo helicopter instrument training costing additional sum of $2000, $4800,$9000 respectively, amounting to N7,505,000.00which it had to source from the forex black market and transferred the same cost back to the claimant to be defrayed by him. I know that all deductions were made in line with the agreed terms of the Training bond and the further stipulations agreed before the additional training cost requested by the claimant was advanced in compliance with the extant laws of the Federal Republic of Nigeria. The Claimant’s employment under the ad-hoc engagement, the expired 24 months contract and the Training Bond was non pensionable and at no time or circumstance during the relationship that existed between the claimant and the defendant expressed to be pensionable.
  16. I also know that the claimant has expressly admitted the breach of Clause 3(a) his Training Bond which regulated his relationship with the Defendant which expressly forbade him from taking any employment within a period of 4 years from the commencement of the training. Upon the completion of the training, he came up with all sorts of excuse and sundry issues to prevent him from fulfilling the terms of the training bond voluntarily executed by him by refusing to report to work since the completion of his Helicopter Trainingwhich was done at a huge cost of the defendants. I fully well know that since the completion of the claimant’s training, he had absconded from his duty post without leave or permission, refused to return to work, rejected all entreaties towards amicably resolving any purported issues.
  17. I know that the defendant never made any 80% deduction from the Claimant’s salary and all deductions made were as agreed under the terms of Training Bond duly executed by the Claimant Voluntarily.
  18. Under Cross examination, DW1 said he was appointed Head of Human Resources in September 2019, he was the Assistant Human Resource Manager as at the time the events leading to this case occurred, he was not in charge of the Human Resources Department as an assistant, but the emails were copied to me. The employment letter (Exhibit NCU1) has an expiry date which is 24 months from 30/7/2014 to 29/7/2016. After 29/7/2016, the defendant continued to pay the claimant’ salaries as an Ad-hoc Staff and the Claimant continued to work. This was from 30/7/2016 up to 31/8/2016.
  19. He wrote Exhibit NUC6 to the claimant in his capacity as an employee of the 1stdefendant. He is aware of the meeting with the Minister of Labour concerning the Claimant and he was not present at the meeting. No settlement was arrived at the meeting. He is aware of the resolutions made at the meeting which was signed by the former Head of Human Resources. The Claimant was asked to come to the company so as to discuss the issues but he never came. The Claimant never called. The 1stdefendant does not issue pay slip. Deductions are made from employees’ salaries depending on their contract of service. No deduction was made in the claimant’s salaries. No deduction were made in respect of taxes or pension, everything was paid to him. Deductions were in September, October and November 2016 in respect of the Training Bond. He does not know the exact figure. The Claimant has off days. He did not work throughout his off days. He only went to his training during his off days.
  20. He is aware of some of the Labour laws concerning deductions. The 1stdefendant did not deduct 1/3 of the Claimant’s salary. He is aware that the claimant’s email was blocked when he absconded from work. The 1stdefendant makes pension deductions depending on the contract of employment. Pension deductions were not made from the Claimant’s salary because it was a consolidated salary and everything was paid to the Claimant. The 1st defendant has not remitted pension to the pension office in respect of the claimant because the contract is not pensionable but a consolidated amount was given to him. The deduction for the Training bond was made at the black market rate because the fund in his training was also given in the black market and they were the same rate. The 1st defendants have both helicopter and jet. The Claimant never complained about his condition of service.
  21. Defence counsel, A.I Lemu applied to tender the following document through the bar:
  22. Employment Contract for Pilot dated 30/7/2014-Exhibit NUC1
  23. Email from Claimant to the 1st defendant dated 4/8/2016-Exhibit NUC2

iii.                Training bond dated 1/9/2016-Exhibit NUC3

  1. Email from Claimant to the 1st defendant dated 8/9/2016-Exhibit NUC4
  2. Email from 1st defendant to Claimant dated 23/11/2016-Exhibit NUC5
  3. Letter of Absence to 1st defendant dated 7/3/2017-Exhibit NUC6

Counsel also tendered the certificate of compliance in respect of the electronically generated documents Exhibits NUC2, 4 and 5 in evidence which was admitted and marked Exhibits NUC7.

 

5.0  CLAIMANT’S  REPLY AND DEFENCE TO COUNTER CLAIM.

 

  1. The Claimant filed an Additional Statement on Oath in response to the defendant’s statement of defenceand counter claim on the 9th May 2019 as follows:

I had accumulated 150 off days as at 30th July 2016 in which I had worked and was not paid by the Defendant which are equivalent to my five month salary. The defendant unilaterally fixed the amount of N2,000,000 in contravention with the agreement we had and without recourse to the official exchange rate of dollars at the time there by exploiting me. My relationship as an employee with the defendant is pensionable in accordance with the Pension Act and Labour Laws in Nigeria. I reported to work and flew 12 hours and was certified by NACA to be the sole Pilot in command of its helicopter after the training for the defendant.

 

  1. The Claimant’s defence to the defendants’ joint Counter-claim is as follows:

I stopped work due to the failure of the Counter claimants to abide by the terms and condition of the employment contract and Labour laws and continuous breach of same, despite my plea for the counter claimants to comply with same. Having executed the MOU, what is left was the execution of its terms and not a further meeting. I am aware that the officials of the Ministry of Labour and employment persuaded the Counter-claimant to honour the MOU but they showed unwillingness to do so.

  1. I am not liable to pay the $77,518.00, same had been variously deducted by the Counter claimants from my salaries and equally failed to keep to the terms of my employment contract and Labour Law making it difficult for me to continue work.

The most parts of the averments in the reply to defence and the defence to the counter claim are  a mere repetition of the facts averred in the statement of facts.

6.0  COUNTER-CLAIMANTS’ REPLY.

  1. The Counter-claimants filed a reply to the defence to counter-claim on the 16thMay 2019, DW1 filed a witness statement on oath in support of the response as follows:

I know the Counter claimants were never in breach of the employment contract and at all material times the relevant contract governing the relationship between the Counter-claimants and claimant was the training bond executed between the parties. I know for a fact that the Counter-claimants fulfilled their obligations under the training bond by paying the training fees of the claimant for his helicopter training and even generously paying him a salary even while not rendering any service to the Counter-claimant during the period of his training.

  1. I know the claimant understood the terms of the Training bond before signing and accepting same and cannot be heard to complain that it is excessive having taken the benefits under the Training Bond Contract.

I also know that the claimant did indeed abscond and by the terms of the Training Bond.

 

7.0 DEFENDANTS/COUNTER-CLAIMANTS’ FINALWRITTEN ADDRESS

 

  1. In compliance with the rules of the Court, parties caused their final written addresses to be filed.The defendants/counter-claimants filed theirs on the 10th November, 2019 and formulated two (2) issues for the determination of the Court to wit:
  2. Whether the Claimant has proved his case before this Honourable Court to entitle him to the reliefs sough therein
  3. Whether the Defendant/Counter-claimants have proved their counter-claim before this Honourable Court to entitle them to the reliefs sought in the counter-claim.

 

  1. Learned Defence/Counter-claimants’ counsel arguing the issue jointly submitted that the claimant has failed woefully to establish his case on the preponderance of evidence to entitle him to the reliefs sought. However, the defendants proved their counter-claim before Court and are entitled to the counter-claim. He submitted further relying on Section 133 and 134 of the Evidence Act that the claimant has the onerous duty to prove his case on the balance of probabilities by leading credible and reliable evidence on the same. He reaffirmed this position by citing the Supreme Court decision of EZEMBE V. IBENEME [2004] LPELR-1205 (SC).Counsel argued that the claimant has not established any of his claims and the documents tendered in evidence does not support his claims but rather strengthen that of the defendant. It is his submission that from the facts elicited under cross examination, CW1 incontrovertibly confirmed that his contract of employment under which his claims were based had been determined by effluxion of time without any complaint or incident. Moreover, the claimant failed to mention the Training Bond which governed his employment and relationship with the Defendants.

 

  1. Learned Defence Counsel further submitted that the claimant has failed to demonstrate before this Court how he accumulated a total of 180 off days, how and when the defendants prevented him from proceeding on such off days or shown anywhere in the contract/bond or any other agreement between him and the defendant where it is stipulated that his off days can or should be converted to any form of monetary payment. It is contention of the counsel that the declaration in relief (b) and (d) above is not founded on any exhibit or document produced and admitted before this Court but rather the Training Bond on which the Claimant is predicating his relief which clearly stipulated the Dollar sum and its exact Naira Equivalent which the claimant is required to pay back.The Claimant clearly accepted this terms and conditions of his employment. On relief (c) and (e), it is the submission of learned defence/counter-claimants’ counsel that the claimant also did not prove by any shred of oral and documentary evidence that the deductions on his salaries between the months of September to December 2016 which was the period in issue, was over 80% of his salary or that he also complained during the material period. Furthermore, the claimant has also failed to show that his employment is pensionable or that the deductions were made from his salary and were not remitted by the defendant.

 

  1. Learned Counsel submitted that the reliefs of the claimants are declaratory in nature, he made reference to the case of CPC v. INEC & ORS [2011] LPELR-SC,and hence he has to win on the strength of his own case. He continued that the claimant brought this case in bad faith in view of the fact that the case was instituted almost two (2) years after he absconded from the employment of the defendant to another employment. He further argued that the defendants/counter-claimants on the other had has put a strong defence to this case. Counsel stated that the claimant admitted under cross-examination that within 6 months from absenting and absconding from the employment of the defendant, he took up another employment, and he also admitted under cross-examination that his employment is not pensionable. It is the argument of counsel that the claimant further confirmed that the deductions made in the months of February and March 2015 during the pendency of his expired contract of employment as a Pilot were due to the inappropriate use of company’s security funds by the Claimant and other members of the 1stdefendant’s crew. That from the documents tendered in evidence by DW1, the defendant has destroyed the case of the Claimant.

 

  1. In respect to the counter-claims of the defendants/counter-claimants, it is the submission of counsel that a case has been made out against the claimant. He hinged his submission on the position of the law that it is a matter of both law and public policy that parties should be held to their lawfully and freely entered bargains and contract and that the law should not aid parties in reneging from their freely entered contract under which they have taken benefits. Counsel placed reliance on the case of UNION BANK PLC V. INNOSON (NIG) LTD [2017] LPER-42725 (CA). Counsel submission that the import of the above decision is that the claimant is bound by the terms of the Training Bond he freely entered with the 1stdefendant and having taken benefit thereunder, he must be compelled by this Court to suffer the consequence of its breach which is a complete refund of the sum paid towards his Helicopter Training as contained in Clause 5 of the Training Bond. Counsel further cited the cases of SOSSAN V HFP ENGINEERING (NIG) LTD [2004] 3 NWLR (PT.861) PG546 AND EFFIOM V. UDOEKA [2017] LPELR-43342 (CA) and urged the Court to dismiss the case of the claimant and enter judgment in favour of the Defendant/Counter-claimant as per their Counter-Claim.

 

8.0 CLAIMANT’S FINAL WRITTEN ADDRESS

 

  1. The Claimant’s Counsel filed his final written address on the 9thDecember, 2019 and formulated three (3) issues for the determination of the Court viz:
  2. Whether from the totality of the evidence before this Honorable Court, the Claimant has proved his case on a Balance of Probability.
  3. Whether the Claimant has proved his case to be entitled to all the reliefs sought in this matter
  4. Whether the defendants/counter-claimants have proved their case on a balance of probability to be entitled to their Counter Claims

 

  1. On issue one, Learned Claimant’s counsel submitted that the evidence presented by the Claimant on this matter clearly shows that the defendant is in breach of the Contractual relationship that existed between the parties and the Claimant is entitled to the judgment in his favour. He further argued that the entire document tendered before this Courtthat is Exhibit CUU1-CUU20 was tendered by a subpoenaed witness hence without an atom of controversy the claimant worked and provided services for the  defendants/counter-claimants and was not paid in accordance with the offer of employment and contract of employment.  Learned Counsel also  argued that the evidence of DW1 was contradictory in nature when placed side by side with the statement of defence, that the defendants stated in paragraph 10 of their Statement of Defence and Witness Statement on oath  that the claimant never made any request as stipulated by Clause 1(b) and (c) of the Employment Contract but during Cross-Examination, DW1 stated  that the Claimant never accumulated any off days contrary to what was earlier stated in their statement of Defence. Counsel then  submitted citing the authority of EZE  KINSGLEY ELUJI V. STATE [2013] 16 NWLR (PT.1380) P.399 that a contradictory statement which is material destroys the credibility of witness and this goes to the substance of the case.  Counsel  noted further that there is an implied term that an employer shall treat his employee with respect and trust and will not treat him an arbitrary or vindictive manner, he cited the case of ROBINSON V.CROMPTON PARKINSON LTD [1978] ICR 401.

 

  1. Counsel submitted that the evidence presented by the Claimant is clear and uncontroverted and therefore entitled to his reliefs. That as for the defendants/counter-claimants’s unilaterally pegging the salary of the Claimant at exchange rate of N200 per USD but made deductions with respect to the Bond in parallel or black market rate of N423 per $1 dollar thereby exploiting the Claimant. It is the further submission of learned Counsel that the defendant/Counter-claimant is also mandated to make a contribution of 7.5% of the Claimant’s total emolument and the total of 15% shall be remitted to the Claimant’s RSA but they failed to do which negates the provision of the Pension Reform Act.
  2. Learned Counsel observed that the defendants/Counter-claimants failed to produce the payslip of the Claimant even when this Court ordered so and failure thereof is not favourable to the defendants/Counter-claimants’ case, Counsel cited the case of AKU NMECHA TRANSPORT SERVICES NIG. LTD &ANOR V. S.D ATOLOYE [1993] 6 NWLR (PT.298) P. 233. RATIO 21.

 

  1. On the expiration of the claimant’s contract of employment learned counsel citing the case of SAVANNAH SUGAR CO. LTD V. ZACKSON LTD [2019] LPELR-46382 CA, P.17-19 submitted that when a contract is reduced to a written form a document into which has been incorporated other documents, the documents so incorporated cease to be extrinsic to the main document, but are to be construed as part of it and therefore becomes admissible. Counsel argued further that the provisions of the 2017 Rules of this Court prevents the defendants/Counter-claimants from hanging on technicalities to defeat the cause of justice. Reference was made to the case of Order 1 Rule 9(2) and (3) of the National Industrial Court Rules 2017. He observed further that the Claimant in this matter continued to work for the defendant and was paid in accordance with Exhibits CUU1 and CUU2 and that the Training bond marked Exhibit CUU21 clearly stated the Claimant as an employee and not ad-hoc staff and the position was reiterated by DW1 under cross-examination.
  2. Counseltherefore submitted that the Court cannot allow the Defendant to approbate and reprobate by turning around the terms of the contract, he made reference to the case of IGA &ORS V. AMAKIRI &ORS [1976] 11 S.C AT 12-13, LAWAL V. UNION BANK [1995] 2 SCNJ 132 AT 145.

 

  1. Arguing issue two, on damages, cost and interest, placing reliance on the case of IGHREREINIOVO V. S.C.C NIG LTD &2 ORS [2013] 4-5 (PT 11) P.31, Learned Counsel observed that thebreach of the Claimant’s contract of employment had made him suffer an untold hardship bearing in mind the arbitrary deductions which were made by the defendant’s /Counter-claimants. That the defendants/Counter-claimants beached their legal duty and once there is a breach of any legal duty to the Claimant such party is entitled to damages, he cited the case of ATIVIE V. KABEL METAL NIG. LTD [2008] 5-6 SC PT11,47. On cost, he submitted that Cost follows events and that the successful party shall be paid for all the expenses incurred by Order 55(1) of the National Industrial Court Rules 2017.

 

  1. Counsel submitted further that the claimant took several steps to ensure that the matter was resolved including reporting this matter to the Ministry of Labour and Productivity, but the defendants’/Counter-claimant’s wilfully refused to remedy the wrong thereby forcing the Claimant to brief his lawyers to institute this matter with professional fees. Counsel also submitted that the claimant is entitled to the sum of Two Million Naira which represents the Cost of this action, he cited Order 47 rule 7 of the National Industrial Court (Civil Procedure) Rules 2017. He continued that the basis of interest is predicated on the fact that the claimant has been kept out of his money for a period and the defendants/counter-claimants who have been making use of the money ought to have compensated the claimant for such deprivation.

 

  1. On issue three, Counsel submitted that the Defendant/Counter-claimants have failed woefully to prove their case on the preponderance of evidence to be entitled to the reliefs sought, he submitted that there is no doubt that there was a training bond which was executed by parties but it is on record that the defendants/counter-claimants did not keep to its own obligation as to repayment deducted at source from the claimant salary. The deductions from the claimant’s salary is a breach of the Memorandum of Understanding (Exhibits CUU17)and the Training Bond (Exhibit CUU21).  Counsel continued that the reliefs which the defendants/counter-claimants are seeking are all equitable remedies but have not proven that they are entitled to the sum of $77,518.00 being the full amount incurred for the claimant training under the training bond and whatever additional sum or the sum of N200,000 or any other sum whatsoever as general damages . It is the argument of learned counsel that the is no evidence before this Court that the claimant actually breached the training bond  and a close look at Exhibits CUU1-CUU21 show that the claimant has proved his case to be entered to his claim. In addition, Counsel further submitted that there was no point the claimant admitted that his employment was not pensionable as his major cause of action was the arbitrary deductions made from his salaries which formed part of his pension and taxes. He concluded that the defendants/counter-claimants have failed  to prove any case of breach of contract  on a preponderance of evidence to be entitled to the relief sought for alleged breach of contract.

 

9.0  DEFENDANTS/COUTER-CLAIMANTS’ REPLY TO CLAIMANT’S FINAL WRITTEN ADDRESS

 

  1. Learned defence/Counter-Claimants’ counsel submitted that the contract between the claimant and the defendant for which the intention of the parties was spelt out both in Exhibit CUU1 and CUU2 and the training bond between the claimant and the 1stdefendant to sponsor for a Helicopter Training in the sum of $61,718.00 having accepted and utilised the bond sum shall work for the 1stdefendant for a period of 2 years until the bond sums are repaid  and if the claimant voluntarily leaves the employment of the 1st defendant , he shall return the full sum expended on his training where he fails to work for the 1st defendant for a period less than one month after the training or the amount shall be prorated where he leaves after a period of one Month. In view of this, counsel contended that the claimant having accepted this terms and conditions of the training bond and benefited from is also bound by same. In addition, he submitted that the claimant’s employment was not pensionable by the training bond. Reliance was placed on the cases  of ZAKHEM CON. (NIG) LTD V. NNEJI [2006] 45 WRN1 AT PAGE 5 RATIO 1, A.G RIVERS STATE V. A.G AKWA IBOM [2011] 29 WRN AT 42, RATIO 38, SECTION 131 OF THE EVIDENCE ACT, IWOK V. UNIVERISTY OF UYO [2001] 6 NWLR PT.1243.

 

  1. Counsel also submitted that the Claimant misconstrued the position of the law when he stated that DW1’s statement undercrosss-examination that the defendant does not do play slip, amount to withholding of document. He stated that by Section 167 of the Evidence act, withholding of evidence is a situation where that evidence exists but it is not produced not where such evidence does exist. That the defendants in this case do not do pay slip and hence cannot be mandated to produce such pay slip nor can the nonproduction amount to withholding of evidence as envisage under the Evidence Act. That it was nowhere stated in the contract agreement that the claimant salary was pensionable. Counsel submitted that the Pension Act cannot avail the claimant as the term of contract are express and agreed on mutually by the parties and same bind them.
  2. On issue two of the claimant, counsel responded that counsel’s address cannot substitute evidence.

 

  1. COURT DECISION
  2. MAIN CLAIM
  3. Having carefully examined the processes filed by both parties in this suit, the documents tendered in evidence and the written submissions of counsels on both sides, it is my view that the issue that would best determine this suit is:

 Whether or Not the Claimant has proven his case on the preponderance of evidence to be entitled to the reliefs sought.

  1. The employment of the claimant with the defendants, as well as the claims, are divided into two eras. The court shall determine the above issue according to the two eras of employment.

(i)                 The period of the first employment from 30/7/ 2014 to 29/7/2016.

  1. The agreed facts relating to the claim in respect of this period are that the claimant’s

schedule flight with the defendant is eight (8) weeks on duty and four (4) weeks off duty and the claimant contends that his off duty were denied him for the whole period of two years except on five occasions when he insisted. Claimant also testified that;

I had a total of 150 accumulated off days in which I had worked at the end of my two year initial contract appointment and it is equivalent to my five (5) months salary.

Claimant also repeated this in his reply to the statement of defence thus;

“I had accumulated 150 off days as at 30th July 2016 in which I had worked and was not paid by the Defendant which are equivalent to my five month salary”.

  1. On the part of the defendants, their case is that ;

All the terms of the contract entered into on 30th July 2014 were honoured by the defendants. The said clause1(b)  provided  that the choice of days on leave is to be requested to the Chief Pilot or anyone who holds responsibility on his behalf and approved by the Group President.

That the Claimant never accumulated a total of 150 off days or any other unutilized off days and it was never a stipulation in the expired contract of employment that the claimant shall be paid in lieu of any unutilized off days in the equivalent of his monthly salary or any other form of compensation.

  1. Eight (8) weeks on duty and four (4) weeks off duty is equal to 2 months on duty and 1 month off duty, meaning the claimant was to be off duty for one third part of the year which is 4 months, for two years is 8 months and he insisted on 5 occasions which is 5 months or 150 days so we are left with 3 months or 90 days not 5 months or 150 days as claimed. I find that if the defendants were to be owing the claimant any unpaid allowances in lieu of unutilized off duty days, it would be for 3 months or 90 days not 5 months or 150 days.
  2. The claimant said;

My outstanding off duty for the months of January, April, July, October 2015, July  and October 2016 respectively which I worked for to be monetised as over time but was not paid by the defendants are $17,000.00 in January, April, July 2015 respectively , $20,000.00 in October 2015, N6,250,000.00 in  July 2016 and N4,000,000.00 in October 2016.

This amounts to six months as against five months claimed, with October 2016 falling outside the period of the first contract. It is also instructive to note that October 2016 falls under the period of the bond and there is no provision for off duty in the bond contract.

  1. How are we to calculate the payment in lieu of off days, and where is the agreement for payment in lieu of off days remains a question without any answer from the claimant or the documents admitted in evidence. The claimant’s salary for this period, by exhibits CUU1 and CUU2 is said to be $850.000 and later increased to $10,000.00 and not denominated in Naira. The evidence of the claimant under cross examination shows that he was paid in Dollars. How five months salaries now fluctuates between $17,000.00, $20,000.00, N6,250,000.00 and N4,000,000.00 for six months is not demonstrated by evidence before the court.
  2. I have read exhibits CUU1 and CUU2, I could not find any clause therein to warrant this claim that the claimant is entitled to any allowance for unutilized off days and that his unutilized off days should be monetised and at what rate, let alone the various sums claimed by the claimant.

The claimant has failed to prove that the defendants owed him whether 3 months, 5 months or 6 months off duty allowance and has also failed to prove the basis of his monetisation claim and the calculations made. This claim fails and is dismissed.

 

(ii)               The second period is the period of his training bond from September 2016.

  1. The facts relating to this claim are as follows;

I agreed with the defendants to train on Helicopter at a total cost fee of $61,718 which was to be paid to Ocean Helicopters and Helinet Aviation as my training fee and deducted from my salaries but same was also converted at black market rate of   N423 to $1, amounting to N26,106, 714. 00 instead of the official rate which was N306.00 to $1; amounting to N18,885,708.00 at the time.

When it became imperative that I undergo instrument training covering additional sums of $2000, $4800 and $9000 respectively, these amounts were again converted to Naira based on black market rate of N475 to $1 amounting to N7,505,000.00 and for same to be deducted from my monthly salary. Also that my total fees paid as computed by the Defendant at November 2016 stood at N32,289,718.00 instead of N23,720,508.00 and recoverable deductions were to commence in the month of September 2016.

The defendant intentionally and deliberately made deductions of 80% of my salary to make me feel pained knowing I will not be able to cope with the remaining salary.

 

  1. Under cross examination, claimant stated that I now work with TAK Aviation Ltd. I had also worked with NESTO Aviation Services Ltd between 5/6/2017 to 3/1/2019.

 

The defendants contend that;

The Claimant became contractually bound to the 3rd defendant for a period of 2 years as an employee pursuant to the Training bond on a fixed Salary of Two Million Naira (N2,000,000) only. There was no controversy at all in respect of the cost of the Helicopter Training as it was expressly stated in the Training Bond both in its dollar sum and the agreed Naira equivalent which the claimant understood, agreed and signed voluntarily.

 

DW1 also testified under cross examination that;

No deduction was made in the claimant’s salaries. No deduction were made in respect of taxes or pension, everything was paid to him.

 

  1. The claimant is also claiming that 80% was deducted from his salary in repayment of the Training Bond but did not say for how many months it was. The DW1 however testified that “deductions were made in September, October and November 2016 in respect of the Training Bond. I do not know the exact figure”. This settles the period for which deductions were made in respect of the training bond in the absence of any contrary evidence from the claimant who only averred that deductions were to start in September, 2016.

 

  1. How can the court ascertain the amounts deducted in the absence of claimant’s pay slips?

It is imperative to note that the claimant confirmed the averment of the defendants when he admitted under cross examination that his salary by Exhibit CUU 21 is N2, 000,000.00. Furthermore, it is his evidence under cross examination that he was being paid N1, 820,000.00 when his salary was N2,000,000.00; which means his monthly deductions was N180, 000.00.per month in respect of the bond.

 

  1. Now, 80% of N2, 000,000.00 alone is N1, 600,000.00. If 80% was deducted from claimants salary in respect of the bond, the balance that he would have been paid would be N400, 000.00. The claimant is also claiming that another 18% of his salary was also deducted as pension contribution; 18% of 2,000,000.00is N360, 000.00. The claimant is also claiming the deduction of an uncertain amount as tax. This means that by the claim of the claimant, the defendant was deducting N1, 960, 000.00 monthly from his salary in respect of the training bond and pension contribution, leaving the unascertained tax deductions to come from the supposed balance of N40,000.00.
  2. Given the claimant’s evidence that he was being paid N1, 820, 000, 00 when his salary was N2, 000,000.00; his claim that the defendant was deducting 80% of his salary as deduction in respect of the training bond and 18% in respect of pension contribution in addition to an unascertained amount as tax deductions is imaginary, bogus and the contradiction is monumentally appalling.

I find that by the evidence before the court, the defendant made a deduction of N180, 000.00 from the claimant’s salaries for the months of September, October and November, 2016 which amounts to N540, 000.00. I also find that the defendant made no deductions from the claimant’s salary in respect of pension contribution and tax deductions during the period of the training bond.

 

  1. It is also imperative to note that the complaints of the claimant against the defendants about the breach of the Bond are not matters that arose after the execution of the Bond; his complaints are actually based on the content of the Bond as executed. A reproduction of some provisions of the Bond will make this clearer. The training Bond is exhibit CUU21.
  2. Paragraphs 1, and 1(v), of the Training Bond read as follows;

 

  1. In consideration of the sum of $48,915.00 for training fees $6,300.00 to be paid for feeding, $6,503.00   to be paid for travel expenses to be paid for by the Employer. This gives a grand total of $61, 718.00 which is equivalent to N26, 106,714.00(Twenty Six Million, one hundred and six thousand seven hundred and fourteen naira)

1.(v)   The employee willingly  agrees to undergo the specialised technical training subject to the terms and conditions of the agreement and to pay back the total sum of $61, 718.00 on a monthly deduction from the employee’s salary for the next two years starting from September 2016 which will be deducted in Naira amounting to N1,087,779.75(One million, eighty seven thousand seven hundred and seventy nine naira seventy five kobo)

  1. The offending part of the agreement according to the case of the claimant,is “This gives a grand total of $61, 718.00 which is equivalent to N26, 106,714.00” , particularly the underlined portion. To the claimant, that was a conversion at the black market rate of N423 to $1, amounting to N26, 106, 714. 00 instead of the official rate which was N306.00 to $1; amounting to N18, 885,708.00 at the time.
  2. The claimant and the defendant signed this bond. It is also the evidence of both parties that the defendant paid additional $2000, $4800 and $9000 which is $15,800.00, amounting to N7, 505,000.00, which according to the complaint of the claimant, was based on black market rate of N475 to $1, instead of the official rate.
  3. Now, $61,718.00 + $15,800 = $77,518.00 and N26, 106,714 +N7, 505,000 = N33, 611,714.00

The defendant said the Dollars was sourced for the claimant at the black market exchange rate and so same black market exchange rate was agreed upon in the bond.

The only question now is whether the claimant, having signed the agreement as it is, is entitled to complain against it.

71. In NDUBUISI ODIGBO v. AL MUSTAPHA ABUBAKAR & ORS (2018) LPELR-46473(CA), the court held,

…it is expected that the Respondents would respect the agreement.
This is because parties are bound by their agreements. See  GENERAL OIL LTD. V. FSB INTNL BANK PLC (2005) AFWLR (Part 277) 1007 at 1015. It is equally the duty of the Court to enforce a contract duly entered into by parties. In OMEGA BANK PLC V. O.B.C. LTD. (2005) 21 NSCQR 771 at 794, the Supreme Court held:-
After due consideration of all the circumstances and if satisfied there was an ascertainable and determinate intention to contract, the Court will strive to give effect to that intention looking at the intent and not in mere form. It automatically follows therefore that any attempt by either the Appellant or the Respondents to negate the intention in Exhibit P1 is a breach of contract and I so hold. 

72. See BENJAMIN UKELERE v. FIRST BANK OF NIG. PLC (2011) LPELR-3869(CA) where the court held;
 
 

The law is fixed that Parties are bound by their agreements. His Lordship Nnaemeka – Agu, J.S.C opined;
“That parties enjoy their freedom of contract carries with it the inevitable implication of sanctity of their contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contract are invariably, the guide to its interpretation.”
See Baba V. Civil Aviation (1991) 2 NSCC 145 at 152 lines 43 – 47.

 

See also N.S.C NIG V. INNIS PALMER (1992)NWLR, PT 218, PG 434, where the court of appeal Per Tobi, J.C,A. held as follows;

The law is elementary that parties are bound by the agreement they willingly enter into. The only function of the court is to interpret the agreement in enforceable terms without more.

 

  1. Applying the above authorities to the instant case, the implication is that the claimant is bound by the agreement he freely entered into and he cannot allege breach because he decided to complain about the exchange rates after signing same.

The claimant is claiming that there was a breach, but this is apparently based on what the claimant thinks ought to have been agreed upon so as to be fair as against what was agreed upon which he thinks was not fair. The claim is not based on refusal of the defendant to do as agreed but on what was agreed in the bond; such a claim is not available to anyone who executes a document.

See

ARJAY LTD. V.A.M.S. LTD.  (2003) LPELR-555(SC); (2003) 7 NWLR (PT.820)577; (2003) 2 – 3 S.C 1 where the Supreme Court held;
   

It is elementary law that where parties have entered into a contract or an agreement, they are bound by the provisions of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement. The court is bound to construe the terms of the contract or agreement and the terms only in the event of an action arising therefrom. See Northern Assurance Co. Ltd. v. Wuraola (1969) 1 NMLR 1; (1969) NSCC 22; Aouad v. Kessrawani ([956) NSCC 33; Oduye v. Nigeria Airways limited (1987) 2 NWLR (Pt. 55) 126; Niger Dams Authority v. Chief Lajide (1973) 5 SC 207; Bookshop House v. Stanley Consultants (1986) 3 NWLR (Pt. 26) 87.

  1. Put in other words, the claimant wants the court to rewrite a fair agreement between him and the defendants, a function the court cannot perform.

 

See  OBANYE V UBN PLC (2018)14 ACELR P1 at p16 where the court held;

In the first place, I endorse the conclusion of the lower court that parties are bound by the terms of their contract. If the conditions for the formation of a contract are fulfilled by the parties thereto, they will be bound. It is not the function of the court to make a contract for the parties or to rewrite the one which they have made.UBN V OZIGI (1994)3 NWLR (PT.333)385,404.

  1. This court has no power to write for the parties the contract that claimant thinks ought to have been written. The claim of the claimant is baseless in law having signed same.

The claim on this ground fails and is dismissed.

 

(iii)             Non remittance of tax and retirement or pension savings.

  1. This complaint covers both periods from 2014 to the end of the bond contract. The case of the claimant here is that-

The terms of my contract of employment provides that my monthly salary to be paid net after tax and other deductibles such as Pension Contributory Scheme but the defendants had not been remitting my tax and pension deductions to the appropriate bodies after payment of my salaries for several months.

 

  1. I have carefully read exhibits CUU1, CUU2 and CUU21 but I could not find this provision in any of these contract documents neither did the claimant or his counsel point it out to the court.

 

The claimant testified further that;

I approached the Federal Inland Revenue Services (FIRS) for the issuance of my Tax Clearance Certificate, but I was denied the certificate on the ground that the defendants had not been remitting my tax. I equally visited the National pension Commission (PENCOM) to inquire the position of my Retirement Saving Account (RSA) and I was informed that the defendant had not been remitting any money towards my RSA.

  1. Exhibit CUU1 provides that the pilot shall be paid a monthly net salary of $8,500.00(eight thousand five hundred US Dollars) only.

Exhibit CUU2 provides that the pilot shall be paid a consolidated salary of $8,500.00(eight thousand five hundred US Dollars) only.

The email of 29/10/2015 attached to exhibit CUU2, communicating the adjusted salary provides that the pilot shall be paid a monthly gross salary of $10,000.00(ten thousand US Dollars) only.

79. In INTELS NIG. LTD. & ORS v. WILLIAM E. BASSEY  (2011) LPELR-4326(CA) the court defined net salary and gross salary as follows;
 

On the other hand, basic salary and all entitled allowances payable to an employee constitute gross salary, while net salary is gross salary less all deductions. Put differently; gross salary is the total amount of income from all sources before any deductions are made.

Consolidated salary on the other hand is the whole salary, the lump sum; it consists of all the entitlements joined together without specifying the breakdown. It is also salary before deductions.

This means that when the claimants consolidated salary was $8,500.00, his net salary was also$8,500.00 and when it was adjusted to a gross of $10,000.00,  his net salary was still $10,000.00. There is therefore no room to imply that any deductions were made from this salary in the absence of any pleaded shortfall in the payment of the said amounts.

  1. Part of the complaint of the claimant is that the salary of N2,000,000.00 was not as negotiated by both parties but was unilaterally fixed by the defendant.

Exhibit NUC2 is a series of correspondence between the 1st defendant and the claimant on 4/8/2016 and 15/8/2016. By the email of 4/8/2016, the claimant was requested to state his salary for flying both the jet and the helicopter. The claimant’s response on the same date was $10,000.00 per month for the golf stream and $15,000.00 per month to fly both crafts.

On the 15/8/2016, the defendant emailed the claimant thus;

“kindly be specific on the amount in naira you want to be paid should you be asked to fly only the helicopter in the mean time”

Claimant’s response to this on the same date was;

“The amount is two million Naira. Thanks.”

  1. This clearly shows and I find that the salary of Two Million Naira was not unilaterally fixed by the defendants but the amount was actually and exactly what the claimant demanded for and there is no reason to tag it as net salary either.

In the three contract documents, exhibits CUU1, CUU2 and CUU21, there is no reference to any deductions of tax or pension contributions except deduction in repayment of training bond in exhibit CUU21.

  1. Under cross examination, claimant testified that;

“From Exhibit CUU2, my salary is $8500. I was being paid $10,000 per month by the defendants between October 2015 and August 2016.

My salary by Exhibit CUU 21 is N2, 000,000.00. By the bond, my repayment was expressed to be in Naira. When my salary was $10,000, I was paid $10,000. When my salary was N2,000, 000.00 , I was paid N1,820,000.00.”

  1. The implication is that N180, 000. 00 per month was deducted under the training bond but for the first two years the claimant was being paid his full salaries without deductions. There is nothing in the bond, exhibit CUU21 to the effect that deductions were to be made for tax and pension contribution.

The claim that the defendants were making deductions from claimant’s salary for tax and pensions contribution is baseless. This claim also fails.

On the whole, the claimant has not proven by preponderance of evidence that he is entitled to his claims and his claims are hereby dismissed.

 

  1. COUNTER CLAIM
  2. As is the case with the main claim, having carefully examined the processes filed by both parties in respect of the counter claim, the documents tendered in evidence and the written submissions of counsels on both sides, it is my humble view that the issue that would best determine the counter claim is:

Whether or not the Defendants/Counter-Claimants have proven their Counter-Claim to be entitled to the reliefs therein.

  1. The counter claimant is claiming for a refund of the sum of = $77,518.00 being thesum expended on the claimant counter defendant under the training Bond. The case of the counter claimants is that in addition to the sum in exhibit CUU21, the defendant made available to the claimant additional sums of $2000, $4800,$9000 respectively, amounting to N7,505,000.00 under the training Bond. Both parties are agreed on this fact.
  2. DW1 also testified that;

The claimant has breached Clause 3(a) of his Training Bond which regulated his relationship with the Defendant which expressly forbade him from taking any employment within a period of 4 years from the commencement of the training.

This the claimant counter defendant affirmed when he testified under cross examination as follows;

“ I now work with TAK Aviation Ltd. I had also worked with NESTO Aviation Services Ltd between 5/6/2017 to 3/1/2019”.

  1. The bond was for two years from September 2016 to August 2018 even though the training period, according to exhibit CUU 21 was to last for 63 days or such other and further or shorter period. Accordingly, the allegation that the claimant counter defendant breached clause 3(a) of the bond by taking up employment with NESTO Aviation Services Ltd between 5/6/2017 to 3/1/2019”.within the forbidden period is proven by the counter claimant.
  2. It is also the case of the counter claimant that upon the completion of the training, claimant came up with all sorts of excuses and sundry issues to prevent him from fulfilling the terms of the Training Bond voluntarily executed by him by refusing to report to work since the completion of his Helicopter Training which was done at a huge cost of the defendants. Since the completion of the claimant’s training, he had absconded from his duty post without leave or permission, refused to return to work, rejected all entreaties towards amicably resolving any purported issues. By paragraph 24 of the counter claim, it is averred that since the completion of his helicopter training, the defendant to the counter claim has not worked for up to a period of one month and thus is liable to pay the full amount of his training as stipulated in clause 5(a) of the Training Bond.
  3. Now paragraphs 5 and 6 of the Bond agreement provide as follows;
  4. If the employee leaves the employer voluntarily, the employee shall be bound to return-
  5. a.The full sum of $61, 718.00 where the employee fails to work with the employer, or worked for a period less than a month after completion of training or;
  6. The remainder of the unused 24 month period where the employee work for a period of less than 24 months but more than a month prorated at 1/24 of the training sum for every month.
  7. That this agreement shall be terminated and shall have no effect in the circumstances below-
  8. The employee must have completed repayment of the training fees to the employer.
  9. At termination by either party, the employee must pay down the total sum of the training if at termination there is still a balance owed to the employer.
  10. Notice of waiver by the employer in writing.
  11. By the authorities of1. NDUBUISI ODIGBO v. AL MUSTAPHA ABUBAKAR & ORS (2018) LPELR-46473(CA),  2. BENJAMIN UKELERE v. FIRST BANK OF NIG. PLC (2011) LPELR-3869(CA) and  3. N.S.C NIG V. INNIS PALMER (1992) NWLR, PT 218, PG 434, as earlier held, the claimant is bound by these terms of the agreement.
  12. The claimant’s defence to this counter claim in summary is thus;

The defendant unilaterally fixed the amount of N2,000,000 in contravention with the agreement we had and without recourse to the official exchange rate of dollars at the time there by exploiting me.

I reported to work and flew 12 hours and was certify by NACA to be the sole Pilot in command of its helicopter after the training for the defendant.

I am not liable to pay the $77,518.00, same had been variously deducted by the Counter claimants from my salaries and equally failed to keep to the terms of my employment contract and Labour Law making it difficult for me to continue work.

 

  1. How the sum of $77,518.00 had been variously deducted by the Counter claimants from claimants salary is what he has failed to prove. It is his evidence under cross examination that“My salary by Exhibit CUU 21 is N2, 000,000.00. By the bond, my repayment was expressed to be in Naira. When my salary was N2, 000, 000.00, I was paid N1,820,000.00.”
  2. The implication is that N180, 000. 00 per month was deducted during the training bond and by the evidence before the court; this was for September, October and November, 2016 only. The evidence from the claimant/counter defendant is also that his last outstanding as calculated by the defendant/ counter claimant based on the said black market rate was N32, 289,718.00 as at November 2016. The defendants counter claimants have not denied this calculated outstanding as at November,2016 attributed them, it is deemed admitted. There is no evidence of deductions beyond November, 2016.
  3. From the story of the claimant and the exhibits, especially exhibit CUU18, the claimant did not work for the defendant after his training beyond February 2017 and he flew for 12 hours within that period; because the claimant counter defendant on his part states that he reported to work and flew 12 hours.Whichever way one looks at it, the only evidence of deductions before the court is that deductions were only made from the counter defendant salary for 3 months (September, October and November,2016)  and this is N180,000.0 x 3 which is N540,000.00.
  4. Even if N180,000.00 was deducted from September 2016 to February 2017, that will only amount to N180,000 x 6 =N1,080,000.00 and not N32,289,718.00 as it stood in November 2016 per the counter claimant or N23,720,508.00 per the counter defendant.
  5. I find that the counter claimant is entitled to a refund of the sum of $77,518.00 which stood at N32,289, 718.00 in November 2016from the claimant /counter defendant.
  6. On the whole, the main claim fails and is dismissed. The counter claim succeeds and it is hereby declared and ordered as follows;
  7. It is hereby declared that the Defendant to the Counter-claim has breached the terms of his Training Bond having left the Defendants voluntarily and refusing to continue to work for the Counter-Claimant without reasonable cause having taken the benefits of the Training Bond executed between himself and the Counter-Claimants.
  8. It is hereby declared that the Defendant to the Counter-claim, having worked for a period of less than one month upon completion of the training, subject of the Training Bond; is liable to return the outstanding amount incurred for his training under the Bond and the additional sums requested by him for additional training in the total cumulative sum of N32,289, 718.00
  9. The Defendant to the Counter-claim is hereby ordered to pay to the Counter-Claimants the total  sum of N32,289, 718.00.(Thirty two Million, Two Hundred and Eighty nine Thousand, Seven Hundred and Eighteen naira) being the outstanding amount incurred for his Training Under the Training Bond.
  10. The defendant to the counter claim is hereby ordered pay to the counter claimant the sum of N100,000.00 (one hundred thousand Naira Only) as cost.
  11. The judgment sum and cost shall be paid within 30 days of this judgment failure upon which the sum shall attract 10% interest per annum until liquidated.
  12. This is the judgment of the court and it is entered accordingly.

 

…………………………..

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D. DAMULAK

ON THE 26TH DAY OF FEBURARY 2020

SUIT NO: NICN/ABJ/340/2018

BETWEEEN    

CAPT UDUMEBERAYE UMUSU                        ……CLAIMANT/COUNTER-DEFENDANT

AND

1.AZIKEL AIR LIMITED

2.AZIKEL GROUP                                              ….. DEFENDANTS/COUNTER-CLAIMANTS         

3.DR. AZIBAPU GODBLESS ERUANI                                                                                              

 

JUDGMENT ORDER

  1. Whereas by a General form of Complaint filed on the 3/12/2018, the Claimant claims against the Defendants the following reliefs:
  2. A Declaration that the Defendants’ failure, refusal and deliberate obstruction and refusing the claimant to proceed on his accumulated off days for a total of 180 days or failure to convert same to payment is unlawful, illegal and against the extant Labour law.
  3. A Declaration that the conversion of the repayment of the Claimant training fees made in the US Dollars to black market rather than the prevailing official rate at the time the payment was made is unlawful and illegal.

                                        iii.            A Declaration that the monthly repayment of the fees spent on the Claimant training in the USA in excess of 80% from his monthly salaries is unlawful, illegal and a contravention of the extant Labour Law.

  1.             A Declaration that the conversion of the training fees paid for the Claimant to black market rate than the prevailing official rate at the time of payment of the fees is unlawful and illegal
  2.             A Declaration that the arbitrary and unauthorized deduction from the Claimants’ salaries and the continuous withholding of his salaries for these moths are unlawful and illegal.
  3.             A Declaration that the failure to remit the statutory Monthly Income Tax and the Contributory Pension Scheme of the Claimant to the appropriate bodies by the Defendants is illegal, unlawful and contravention of the extant laws.

                                      vii.            A Declaration that the Claimant is entitled to the sum of $45,500.00 and N2,000,000.00 only being payment for the accumulated 180 off days as per the Claimant monthly salary.

And whereas the defendants counter-claim as follows;

  1. A Declaration that the Defendant to the Counter-claim has breached the terms of his Training Bond having left the Defendants voluntarily by absconding , absenting himself, neglecting, failing and/or refusing to continue to work for the Counter-Claimant without reasonable cause having taken the benefits of the Training Bond executed between himself and the Counter-Claimants
  2. A Declaration that the Defendant to the Counter-claim having worked  for a period of less than one month upon completion of the Training subject of the Training Bond is liable to return the full amount incurred for his Training under the Bond and the additional  sums requested by him for additional training in the total cumulative sum of $77,518.00 (Seventy Seven Thousand, Five Hundred and Eighteen Dollars Only)
  3. An Order of this Honourable Court directing the Defendant to the Counter-claim to pay to the 1st Counter-Claimant forthwith as follows:
  4. The Total cumulative sum of $77,518,00 (Seventy Seven Thousand, Five Hundred and Eighteen Dollars Only ) being the full amount incurred for his Training Under the Training Bond and the additional sum requested by him for additional training as mentioned in Paragraph 17 of the Defendant to the Counter-Claimant’s Statement of Defence before this Honourable Court.
  5. The sum of N200,000,000.00 (Two Hundred Million Naira) as general damages for breach of the Training Bond.

iii.                10% interest on the judgment sum from the date of judgment till final liquidation on the Judgment sum.

  1. The sum of N3,000,000.00 (Three Million Naira Only) as coat of prosecuting the Counter Claim.

And after hearing the evidence of both parties and considering the written submissions of Enewa Rita Chris-Garuba with Chris Mban  for the Claimant and A.I. Lemu with O.S. Emejulu and A.S. Aliyu for the Defendants/Counter-Claimants.

 

COURT ORDER

It is held that the claim fails and is dismissed. It is also held that the counter claim succeeds and it is hereby declared and ordered as follows;

  1. It is hereby declared that the Defendant to the Counter-claim has breached the terms of his Training Bond having left the Defendants voluntarily and refusing to continue to work for the Counter-Claimant without reasonable cause having taken the benefits of the Training Bond executed between himself and the Counter-Claimants.
  2. It is hereby declared that the Defendant to the Counter-claim, having worked for a period of less than one month upon completion of the training, subject of the Training Bond; is liable to return the outstanding amount incurred for his training under the Bond and the additional  sums requested by him for additional training in the total cumulative sum of N32,289, 718.00
  3. The Defendant to the Counter-claim is hereby ordered to pay to the Counter-Claimants the total  sum of N32,289, 718.00.(Thirty two Million, Two Hundred and Eighty nine Thousand, Seven Hundred and Eighteen naira) being the outstanding amount incurred for his Training Under the Training Bond.
  4. The defendant is the counter claim is hereby ordered pay to the counter claimant the sum of N100,000.00 (one hundred thousand Naira Only) as cost.
  5. The judgment sum and cost shall be paid within 30 days of this judgment failure upon which the sum shall attract 10% interest per annum until liquidated.

 

      GIVEN UNDER THE SEAL OF THE COURT AND THE HAND

OF THE HONOURABLE JUDGE,  HON.  JUSTICE K. D. DAMULAK THIS 26th DAY OF FEBRUARY, 2020.

 

 

………………………………….

HON. JUSTICE K. D. DAMULAK

JUDGE

 

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