DR VICTOR F. BALOGUN & 2ORS VS FEDERAL UNIVERSITY OF

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN IN AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI

DATE: 15^TH NOVEMBER, 2018

SUIT NO. NICN/AK/49/2015

BETWEEN

DR VICTOR F. BALOGUN

(Suing through his Attorney, Barr. Boluwaji

Awofolaju)

DR. O. OLABODE
DR. (MRS) B.A. OJOKOH

CLAIMANTS

AND

FEDERAL UNIVERSITY OF TECHNOLOGY,

AKURE

GOVERNING COUNCIL OF FEDERAL

UNIVERSITY OF TECHNOLOGY, AKURE

DEFENDANTS

REPRESENTATION

Kehinde Aladedutire with him are Messrs C.A Gbogi and Baba Omojola, Yetunde Bright, Amos Ilari and Omosalewa Omotehinse for the claimants.

Dr. O.J. Jejelola with him are Faleyimu Vera and O.C. Ogechukwu for the defendants.

JUDGMENT

All the claimants are employees of the 1^st defendant, except the 1^st claimant who voluntarily withdrew his services from the 1^st defendant in May, 2015. He was Lecturer II in the Department of Computer Science in the School of Science of the 1^st defendant. The 1^st claimant in 2006, applied for Staff Development training to pursue his Ph.D program in the University of Manitoba, Canada and the application was approved by the Appointments and Promotions Committee (Academic) on 24th November, 2006 for a 3 year study duration and that after the approval, an agreement known as (Staff Development Award/Service agreement) between him and the 1st defendant was executed with the 2^nd and 3^rd claimants as his sureties, which is the tripartite agreement that governs the determination of the bond in the event of any impasse. The 1^st defendant granted the 1^st claimant extension of study leave with pay dated 18^th June, 2010 when he needed transfer to another University with better facilities and that he commenced the extension on the 1st August, 2010. Also that a further Approval for extension of Study leave without pay was granted him to enable him complete his Ph.D program at University of Idaho in United States of America dated 26^th November, 2012. That due to unconducive working environment after his arrival back to put into use the additional knowledge he has acquired to the institution, denial of his due and entitled promotion in the year 2013 and 2014, on the 8^th April, 2015, he wrote a letter of complaint to the defendants through the Dean of school of science, but there was no response and no improvement on his condition. He then wrote a letter dated 19^th January, 2015, giving the 1^st defendant a notice of withdrawal of service and equally wrote eliciting a response as regards his bond, but none was received. However, by a letter dated 22^nd July, 2015, the defendants terminated his appointment in breach of his term of employment. The 1^st claimant stated that the defendants’ action is unwarranted, malicious, oppressive and wickedly calculated to soil his career and prospect in the future. The 2^nd and 3^rd claimants wrote the defendants to inquire about the conditions they are on the bond for which they guaranteed and the amount to be repaid and the rate but that the defendants refused to accede to their request and started deducting their salary without any further recourse to them. It is in the light of this that the claimants took out a complaint in this Court on the 23^rd October, 2015, claiming against the defendants the following reliefs:

A Declaration that the termination of the appointment of the 1^st claimant by the defendants via a letter of termination of appointment dated 22^nd July, 2015 after he had given due notice of the withdrawal of his service dated 19^th January, 2015 to the defendant is unlawful, unfair and unconstitutional.
A Declaration that the 1^st claimant’s withdrawal of service from the 1^st defendant’s institution is legal and in consonance with the terms of his employment.
A Declaration that the claimants are entitled to be notified of the amount payable to the defendants having served for one year and eight month after returning to the defendants and the pro rata basis on which the outstanding payment is to be made before enforcing the deduction against his guarantors.
A Declaration that the act of the defendants in extending the three year bond contractual agreement between 2^nd and 3^rd claimants to five years without their consent and concurrence and also enforcing same against them is unlawful, unconstitutional and inconsistent with the terms of the bond governing their contractual relationship.
An Order that the defendants pay the sum of N5,000,000.00 (Five Million Naira) to the 1^st claimant as damages for unlawful termination of the claimant’s employment.
An Order of this court upholding the 1^st claimant’s withdrawal of service from the 1^st defendant’s institution.
An Order restraining the defendants from making further deductions of any money from the salary of the 2^nd and 3^rd claimants since the 1st claimant never informed the defendants he would not pay back the “yet to be determined” amount he is to repay.
An Order awarding the sum of N5,000,000.00 to the 2^nd and 3^rd claimants for the unlawful and unconstitutional act of deducting their salary without due process.
An Order of this Honourable Court that the defendants reverse and pay back the deductions already made in the salaries of the 2^nd and 3^rd claimants during the pendency of this suit.

The defendants in their response to the above, filed their statement of defence and Counter-Claim on the 5^th of November, 2015 wherein they admitted that the 2^nd and 3^rd claimants were the two sureties for the 1^st claimant in respect of the Staff Development Award/Service Agreement bordering on the 1st claimant’s Ph.D program abroad both for the 3 years contractual bond and the approval of Transfer of the said program and Application for extension of study leave with pay. Their contention is that the 1^st claimant has not voluntarily withdrawn his service from the employment of the 1^st defendant because the 1^st claimant’s letter of withdrawal of service was rejected by the 1^st defendant. That 1^st claimant was not denied any promotion at all as the extant regulations regarding promotion of academic staff was objectively applied in his favour on his resumption of duty after the completion of his Ph.D abroad. The defendants further argued that the study leave granted to the 1st claimant were granted subject to the conditions stipulated in Staff Development Award/Service Agreement of 7/11/2006 together with the Bond attached thereto and that the other conditions contained in the bond are meant to be complied with, whether or not he returned to the 1^st defendant after the completion of his training, but that he failed to complete the stipulated period provided. It is also stated that the 1^st claimant need to refund all the salaries received by him during his training before he can withdraw his service. They went on to state that the 1^st claimant was given fair hearing before termination of his appointment. The defendants continued that the 1^st claimant by withdrawing his service from the 1^st defendant so soon after it had financially invested greatly in his career violates the extant laws of the 1^st defendant. It was further averred by the defendants that the 2^nd and 3^rd claimants stood sureties for the 1^st claimant in the said Staff Development Award/Service Agreement, the basis upon which the said deduction were being made and that they never acted outside the provisions of the Staff Development Award/Services Agreement and the Bond. The defendants finally contended that the claimants’ claim in this suit is frivolous and an abuse of Court process as such it should be dismissed with substantial cost against the claimants.

The 1^st defendant counter-claimant is counterclaiming the sum of N9,756,935.01 against the claimants jointly and severally being the total money paid to the 1st claimant as his salaries between January, 2007 and July, 2012 during the study leave with pay for five (5) years abroad. They went on claiming the interest on the said sum at the rate of 25% percent per annum from the date of the institution of this case until the judgment of the Court is delivered in this suit and thereafter at the rate of 10% per annum until the whole judgment debt is fully and finally liquidated by the claimants.

It is germane to state that the 1^st claimant is suing through his Attorney Barr. Boluwaji Awofolaju, who testified as CW1 and tendered documents admitted on record as exhibits BA to BA16. CW2 is the 2^nd claimant who gave evidence for himself and tendered a document admitted and marked as exhibit BA17. One Richard Adeyinka Arifalo, Acting Director of Directorate of Establishment and Human Resources (DEHR) of the 1^st defendant testified for the defendants. He equally tendered document admitted and marked as exhibits M to M5.

In compliance with the rules of this Court, parties at the close of trial filed their final written addresses as arguments in support of their respective positions. Salient portions of which will be captured in the course of this judgment.

I have considered the written submissions of both learned counsel in this case, and find that issues framed by them are similar and a consideration of which will resolve the knotty issues in this suit. It is in that regard that I rephrase the issues distilled by both learned counsel thus-

Whether or not the 1^st claimant breached his contract of service or staff development agreement/bond by his withdrawal from service.
Whether or not the termination of claimant’s employment by the 1^st defendant is unlawful.
Whether or not the deduction of money from the salaries of the 2^nd and 3^rd claimants by the 1^st defendant is lawful.
Whether or not the 1^st defendant has proven their counterclaim as to entitle to same.

With respect to issue one, the defendants grouse with the 1^st claimant is that his purported withdrawal of service from the 1^st defendant was not done in tandem with the extant laws, regulations and the condition of the Staff Development Award/Service Agreement and the Bond attached therewith in this case, chapter V paragraph 2(i) of Exhibit BA2, which is the Reviewed Regulations Governing the Conditions of Service of the Employees on CONTISS 06/CONUAS 01 and above approved by Council at its 86^th Statutory Meeting of 27^th September, 2007 and paragraph 16 of Exhibit BA6, Staff Development Award/Service Agreement dated 7^th of November, 2006. It is further submitted that the legal implication of the approval contained in Exhibit BA7 is that the initial study leave of three (3) years granted to the 1^st claimant has automatically extended to five (5) years under the same condition contained in Exhibit BA6. According to learned defence counsel, the 1^st claimant’s letter of withdrawal of service was in breach of the staff development bond. That it ought to have been made to take effect from the end of the 2014/2015 academic session which commenced on the 11^th day of January, 2015 and ended on the 12^th of September, 2015. It is however, the position of the learned counsel for the claimants that every employee has the right to resign his employment anytime he so wishes and his resignation takes effect even when his employer does not expressly accept it. He placed reliance on the authorities of Professor T.M. Yesufu v. Governor of Edo State [2001] 13 NWLR (Pt 731) 517; Onukwubiri & Anor v. Ibeakanma & Ors [2014]LPELR-23804(CA) and Riordan v. War Office [1959] 3 ALL ER 552. It is submitted further on behalf of the 1^st Claimant that, he exercised that right by withdrawing his service from the employment of the 1^st Defendant vide a letter dated 19^th January, 2015, i.e. Exhibit BA10 and argued that the defendants therefore have no right to reject his resignation for whatever reason. Learned counsel submitted that the withdrawal of service of the 1^st Claimant, the receipt of which the defendants did not deny, is conclusive of his working relationship with the 1^st defendant’s institution. Further reference was made to the cases of Tadugguronno v. Gotom [2002] 4 NWLR (Pt. 757) 453; Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1; WAEC v. Oshionebo [2006]12 NWLR 994 Page 258 and Faponle v. University of Ilorin Teaching Hospital Management Board [1991] 4 NWLR (Pt 183) 43. Now, it is not in doubt that the 1^st claimant was in the employment of the 1^st defendant, equally not in contention is the fact that he applied for and obtained an approval vide a letter dated 13^th December, 2006 to pursue Ph.D program in Manitoba Canada effective from January, 2007. i.e. exhibit BA5. Paragraph 2 of same, specifically stated that 1^st claimant’s entitlement under the staff development program “…shall be the payment of your monthly salaries only…” Consequent to this 1^st claimant signed a tripartite agreement vide exhibit BA6, with the 1^st defendant and the 2^nd and 3^rd claimants as his guarantors/sureties. It is also on record that the 1^st claimant tendered a letter of withdrawal from service vide a letter dated 19^th January, 2015, i.e. exhibit BA10, which according to him should take effect from May 4, 2015.

Now, I will consider issues one and two together, has the 1^st claimant by that letter of withdrawal breached the terms of his contract of employment on one part and or the staff development agreement on the second part? Another angle to consider this issue is whether or not as argued by the learned claimants counsel, the 1^st claimant can exercise his right to determine his relationship with the 1^st defendant as he has done in this instance? Both parties are in agreement that the Reviewed Regulations Governing the Conditions of Service of the Employees on CONTISS 06/CONUAS 01 and above approved by Council at its 86th Statutory Meeting of 27th September, 2007 regulates their relationship, i.e. exhibit BA2. According to Dr. Jejelola, the 1^stclaimant is in breach of Chapter V, clause 2(i) of that regulation as well as the staff development award/service agreement. What is then the effect of an agreement freely executed by parties? An agreement as defined in case law authorities as well as notable text books is a contract made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object. The contract must have a definite offer and acceptance and its purpose should be to create a legal relationship. See Mrs. Ajayi-Oje v The Executive Secretary (Family Planning Council of Nigeria) [1975] 1 ALL N.L.R (pt. 1) 90 at 94; B. Stabilini Co. Ltd v Obasi [1997] 9 NWLR (Pt. 520) 293 at 300 para C; It is an elementary law of contract that parties to a contract must have the legal capacity to make it. Every person is competent to contract who is of the age of majority according to the law to which he is subject, and must be of a sound mind, and is not disqualified from contracting by any law. All the essential elements of a binding contract of agreement must exist for a contract of agreement to be binding on the parties to it; the elements are, offer, acceptance and consideration. I find from the documents before me, particularly exhibits BA2 and BA6 are both contractual agreements legally binding on the 1^st claimant and the 1^st defendant on one part, as well as exhibit BA6 binding on the 1^st defendant and the 2^nd and 3^rd claimants on the other part. See the cases of Osesa v. Tulip Cocoa Processing Ltd [2018] LPELR-45003CA; The erudite jurist of his time, Niki Tobi, JSC;( blessed memory) in the case of Nika Fishing Co. Ltd. v. Lavina Corporation [2008] 16 NWLR (Pt.1114) 509; where his lordship brilliantly and admirably posited inter alia that “… Where there is a contract regulating in any arrangement between the parties, the main duty of the Court is to interpret that contract and to give effect to the wishes of the parties as expressed in the contract document. See also Oduye v. Nigerian Airways Limited (1987) 2 NWLR (pt. 55) 126. In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See Amizu v. Dr. Nzeribe (1989) 4 NWLR (Pt 118) 755″. It is equally notorious that in the construction of documents the words must first be given their simple and ordinary meaning and under no circumstances should new or additional words be imported into the text unless the documents would be by the absence of that which is imported impossible to understand. The 1^st claimant by exhibit BA2 can by his terms of contract of employment, withdraw his services from the 1^st defendant. See clause 1 (ii) of exhibit BA2. It is noteworthy that chapter V clause 1 of exhibit BA2, under the heading “General” listed ways by which an employees’ appointment with the 1^st defendant may cease, it listed Resignation, withdrawal of service which provides that (A member of staff may withdraw his service at any time and shall be entitled to his contributory pension payable by his Pension Fund Administrator provided he is not less than fifty (50) years of age); Transfer of service; Normal Retirement; Voluntary Retirement; Retirement on Medical Grounds and Retirement on Grounds of Redundancy. Clauses 2 to 6 elaborated on each of the listed ways an employees’ appointment with the 1^st defendant may cease, it however, failed to do same for withdrawal of service. It is therefore, not correct to say that 1^st claimant appointment is to be regulated under the staff development award/agreement/bond, this is so in view of the fact that 1^st claimant did not tender his resignation letter but letter of withdrawal as listed under clause 1 (ii) of exhibit BA2 and not clause 2 (i) of exhibit BA2. Infact, by exhibit BA2, 1^st claimant may withdraw his service “…at any time…” 1^st claimant tendered his letter dated 19^th January, 2015, vide exhibit BA10, effective on May 4 2015.

I need to consider at this stage the effect of the withdrawal from service letter written by the 1^st claimant. The 1^st claimant on record served on the 1^st defendant his letter of withdrawal from service vide a letter dated 19^th January, 2015 giving the 1^st defendant 3 months’ notice. Which according to him should take effect from May 4^th, 2015. The 1^st defendant replied this letter vide a letter dated 20^th April, 2015, wherein it stated that the 1^st claimant by his letter of withdrawal is in breach of the Staff development award agreement/bond and that he would be required to pay back all the salaries paid to him under the bond, failing which his guarantors would be made to refund the money by deductions from their salaries, but failed to state the amount to be refunded by the 1^st claimant. The letter was signed by DW on record. The import of this letter is clearly an acceptance of 1^st claimant’s withdrawal from the 1^st defendant’s service, the only rider which is in consonance with clause 18 of the agreement exhibit BA6, is that he has to refund the balance of money expended on him in the course of his training, that the 1^st claimant has agreed to by his paragraph 37 of claimants’ statement of facts. There is no gainsaying the fact that the 1^st claimant’s letter of withdrawal from service of the 1^st defendant became effective on the date same was communicated/received by the 1^st defendant. By Adefemi v. Abegunde supra which relied on the case of Benson v. Onitiri [1960] 5 FSC 69; resignation or withdrawal from service of an employee takes effect from the date the submission of notice of such resignation or withdrawal. Aderemi JCA (As he then was) of blessed memory held in WAEC v, Oshionebo [2006] LPELR-7739CA; thus “… The law is that a notice of resignation is effective not from the date of the letter, nor from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent. In Christiana Yare v National Salaries and Wages Commission [2013] LPELR 20520, S.C; when the apex Court was faced with the issue of limitation law in respect of Section 2 (a) of Public Officer’s protection law which provides that no suit can be filed against a public officer except three months preceding the date of the accrual of the cause of action, the Supreme Court held that time started counting in that case from the date the appellant got his letter of compulsory retirement. It is deducible from the decisions in the above cited cases that a letter of resignation or withdrawal from service takes effect from the date it is received and same can be effective whether or not it has been approved. See Adefemi’s case supra. I have stated above in this judgment that the 1^st defendant by a letter written by DW did tactically accept his withdrawal from service for which they called his attention to the refund of the amount expended on him as stipulated in the bond reproduced earlier in this judgment. My position is more strengthened by the above judicial decisions as well as the persuasive decision of an India Court in the case of Siri Krishna v. Prescribed Authority, Kanpur [1995] (1) LLJ1060 (ALL HC), held that;

the voluntary retirement is an act of an employee and if it is proved and established that the employee concerned had chosen to give up office of employment of his own accord and free will, the cessation of his employment and the breaking up the relationship of master and servant is immediate without calling for an approval of the suo moto action of the master unless of course, the service conditions required anything to the contrary.” (underline mine for emphasis).

It is now without paradventure that the 1^st claimant’s appointment with the 1^st defendant came to an end in May 4, 2015, the effective date of his withdrawal from service of the 1^st defendant. In consequent of which I find that the letter of termination of the 1^st claimant by the 1^st defendant dated 22^nd July, 2015, was rather too late in the circumstance of this case. It has no legal effect, it is an afterthought and thus declared null and void. I so find and hold.

Next, is the effect of the staff development award/agreement/bond, i.e. exhibit BA6 executed by the 1^st claimant, 2^nd and 3^rd claimants as his sureties and the 1^st defendant. The bond was for 3 years, while the study leave was extended for another 2 years and another year without any bond/agreement. The terms of this agreement/bond is very plain and unambiguous. Parties agreed that 1^st claimant will be paid his full salary for the period of 3 years and other entitlements as stated in clauses 6, 7, 8 and 9 of the agreement. Clause 16, thereof states that the 1^st claimant who is the trainee in this case shall return to Nigeria in continuation of his employment and shall serve the 1^st defendant for each year spent on study, he shall serve for a year for each of the period of the study leave. The 1^st claimant as evince on record spent 6 years on study leave, however, by paragraphs 31 and 33 of the claimants statement of facts his training bond is only for 3 years as stated in the agreement/bond and not 6 years as alleged by the defendants. The implication of which is that he is expected stricto sensu by that agreement to continue in the 1^st defendant’s employment for 3 years, failing which by clause 17 of exhibit BA6, he is to repay the 1^st defendant the total sum expended on him while on his Ph.D training, where he returns but failed to complete the stipulated years, he has to pay the balance which is to be calculated on a pro rata basis taking into account the period already spent. Evidence before me shows that the 1^st claimant returned to Nigeria in August 2013. I noted that exhibit BA7 dated 18^th June, 2010 extending his study leave for 2 years to University of Idaho, is without a bond, In other words the 2^nd and 3^rd claimants are not sureties/guarantors of same. Equally of note is that by exhibit BA8, 1^st claimant’s extension of study leave dated 26^th November, 2012 is without pay was also without a bond. The 1^st claimant admitted by paragraph 14 of his statement of facts that it is the staff development award/ service agreement that regulates the determination of the bond. By paragraphs 34 and 35 of his statement of facts, 1^st claimant also agreed to abide by the terms of exhibit BA6 for any breach on his part. According to him, he left the services of the 1^st defendant at the expiration of the 3 months’ notice he gave and expecting the 1^st defendant to fix his liability under the agreement/bond, see paragraph 37 of claimants’ statement of facts. What more, going by the age long settled position of the law as espouse in plethora of cases, that facts admitted need no further prove, the 1^st claimant having admitted that he is in breach of the staff development/service agreement/bond and awaiting the 1^st defendant to fix his indebtedness to it, the law does not therefore require any further prove from the 1^st defendant as regards the refund as stipulated in exhibit BA6. All that is required from the 1^st defendant in compliance with the staff development award/agreement/bond, i.e. exhibit BA6 and no other document is to pro rate the 1^st claimant’s indebtedness based on the outstanding months claimant ought to have continued in its employment before he withdrew his service and not to issue a termination of employment letter determining claimant’s employment. By terminating 1^st claimant’s employment, the 1^st defendant has put itself in a situation where it would be held out to have automatically determined the Staff development award/service agreement/bond. The import of which is that the 1^st claimant was forced out of the employment of the 1^st defendant by his employer, hence he could not fulfil his responsibility under the bond.

Assuming but I am not in agreement with the 1^st defendant that it terminated 1^st claimant’s appointment, was the procedure for termination of appointment of the 1^st claimant followed by the 1^st defendant? The 1^st defendant by exhibit BA13 issued a query to the 1^st claimant admitting that it received his letter of withdrawal from service dated 19^th January, 2015, and that due to the bond agreement his application is under consideration. That he absented himself from duty against the university regulations. First, the defendant had admitted they were in receipt of 1^st claimant’s letter of withdrawal, which I have held supra to be an effective withdrawal from service by chapter V, clause 1 (ii) of the condition of service regulating 1^st claimant’s appointment. Secondly, the 1^st defendant alleges that 1^st claimant’s absence from duty in June after he had withdrawn his service was in breach of a regulation which was not stated and finally, that he is owing the 1^st defendant under the bond, yet it failed to communicate to him the amount owed. The law is of common that where an employment is one that enjoys statutory flavor as in this case, the terms and procedure for termination must be strictly followed, failing which the termination would be declared unlawful. See FUT. Yola v. Maiyuwa & 2 ORS [2014] 3 ACER, 64 @ 67. The 1^st defendant by its letter of termination dated 22^nd July, 2015 after 1^st claimant has withdrawn his service from its employment is in contravention of its contract of employment, i.e. exhibit BA2. I hold this respectful view in the light of the provisions of chapter XIV, provisions on discipline, specifically clause 12, i.e. procedure for termination. I find no single provision in this clause that relates to the content and import of exhibit BA14, i.e. the letter of termination.

Chapter XIV

An employee who is confirmed in his appointment may have his appointment terminated by the University on grounds of general inefficiency provided that he has previously been reprimanded at least thrice by the Vice-Chancellor that his work has been unsatisfactory.

The appointment of a confirmed employee shall be terminated by Council in accordance with the provisions of the Federal Universities of Technology Act (Section 15).

A confirmed and established employee whose appointment is terminated for inefficiency shall be given one calendar month’s notice or alternatively one month’s pay in lieu of notice. Any leave entitlements accruing at the time of termination with the notice or if being terminated without notice such leave may be commuted to cash. Such notice of termination of appointment may be given on any date of the month, and the calendar month shall be calculated from the day on which the notice is given to the day numerically corresponding to that day in the following month, less one day.

Employees terminated for inefficiency may be allowed to stay at the University premises for a period not exceeding one month.

An employee who terminates his appointment by resignation on advice shall be required to give a month’s notice or pay a month’s salary in lieu. He shall also be required to vacate University premises immediately or at the expiration of his notice.

It is so plain from the above captured clause that the 1^st defendant in its bid to quickly ease off the 1^st claimant from its employment lost sight of the provisions of its terms of appointment and acted contrary to the provisions of exhibit BA2. The import of which in law is that their action is ultra vires and thus unlawful. Accordingly, I find and hold that exhibit BA14 is null, void and of no effect same having ran afoul of the provisions of Section 15 of Federal University of Technology Act and chapter XIV, clause 12 of the 1^st claimant’s contract of employment. I so find and hold.

I need to state at this stage that the 1^st defendant alleges that the 1^st claimant was on study leave for 6 years, hence he is expected to continue in its employment for 6 years or in the alternative refund the remainder of the years he failed to continue in its employment. This is the only area of contention between the 1^st claimant and the 1^st defendant for which the 1^st defendant has started deducting money from the salaries of the 2^nd and 3^rd claimants as a refund of the money allegedly expended on the 1^st claimant. I have held earlier in this judgment that in interpretation of contractual agreement or any document where the words are clear, plain and unambiguous , all the Court need do is to give it simple and ordinary/grammatical meaning and under no circumstances should new or additional words be imported into the text/agreement. Exhibit BA6 is the Staff Development Award/service agreement and the bond executed there under by the 1^st claimant and the 1^st defendant as guaranteed by the 2^nd and 3^rd claimants. This was confirmed by CW and DW on record. Parties are in agreement that exhibit BA6 regulates the training bond executed by all the parties in this suit.

Now, are training bonds enforceable? It is the contention of learned claimants counsel that where an employee under a contractual bond is yet to complete his service as in the case of the 1^st claimant, such provisions has been held to be unlawful and unenforceable. The learned defence counsel argued that the above contention of Aladedutire of counsel is misconceived in law. To him parties’ agreement must be given effect. It is important to state at this juncture, that I am disappointed in both learned counsel, in that apart from these submission they failed to canvass more evidence in prove of their assertions. They equally failed to exhibit their professionalism by citing authorities in support of their contention, especially the learned counsel for the claimants who raised this issue. I say this because this issue is not novel, there have been decisions of this Court on similar subject as well as Supreme Court and Court of appeal decisions. There are also foreign decisions on this subject for which I expected learned counsel to adduce inference from. Like I have always said here in this Court, a vibrant judiciary and dynamism of the law is strongly dependent on a vibrant Bar. Albeit, I will strive to make reference to and rely on some of the relevant case law authorities I came across whilst writing this judgment in order to serve the best end of justice. It is trite that a training bond is an agreement that seeks to compel an employee who has been sponsored for a training by the employer to work for an agreed number of years for the benefit of the employer’s investment on the staff. Alternatively put, it is the service compulsorily rendered by an employee for training sponsored by his employer. The law is now settled that training bonds are enforceable once it is ascertained to be reasonable. Reasonability or otherwise of a training bond is dependent on the bonding period and the amount required to be paid in the event of breach. By Overland Airways Ltd v. Jam [2015] 62 NLLR (Pt.219)525; training bonds are not enforceable between the parties being in restraint of trade unless they are shown to be reasonable. The only issue to consider in cases of this nature is to consider whether the bonding term is reasonable. In Solicitor General of Western Nig. v. Dr. Festus Adebonjo & Ors Suit No: SC.207/1969, a judgment delivered by the apex Court on 21^st May, 1971. A brief gist of that case is that a training bond was executed by the respondents in that case with the appellant for a sponsorship training in medicine in the USA, a variation agreement or bond was again executed by all the defendants when the 1^st defendant/respondent was to undergo post graduate studies at the further expense of the Government of Western Nigeria. It is of course common ground that the variation agreement put in evidence as exhibit H in that case only confirms and makes applicable to the post graduate award the terms and conditions of the original agreement exhibit C. In consideration of the provision of clause 4(a) of exhibit C, the clause clearly stipulates that after qualification the 1^st defendant/respondent could be offered employment by the Permanent Secretary, Ministry of Education, Western State “in a capacity considered suitable by the regional government.” In affirming the decision of the Western State High Court per Delumo J, that “it is the regional government that would decide the capacity which is appropriate”. The Supreme Court held amongst other things that in interpretation of an agreement “One must consider the meaning of the words used not what one may guess to be the intention of the parties” The Court went on to conclude that the Western State Court of Appeal took a mistaken view of the law when they held that the appointment offered the 1st defendant/respondent on his return home and/or the capacity in which he was then asked to serve the regional government was not “reasonable”. In other words, the provision of clause 4(c) of the training bond was held to be reasonable. Back home, this Court per Adejumo J, the Hon. the President of this Court (PNICN), held in Overland Airways Ltd v. Oladeji Afolayan & Anor [2015]52 NLLR(PT.174) P.214 @ 281, that the two training bonds executed by the claimant and the defendant in that case are valid and enforceable as between the parties. As a way of distinguishing Oladeji’s case from this instance, the 1^st defendant in that case was the employee Pilot and also executed a training bond with the claimant, however, in an anticipation of a breach of that agreement by the express intention of the 1^st defendant to disengage from its services, the claimant commenced that action but wrongly withheld the 1^st defendant’s salary. It is consequent upon that that the Court held that the claimant in that case breached the contract of employment. In considering the reasonability or enforceability of exhibit BA6, I also want to call in aid the appeal Court decision in Miss Chinwe Emuwa v. Consolidated Discount Ltd [2001] 2 NWLR (Pt.697)424 ; it was held in Emuwa’s case supra, that it would be unreasonable and not in accord with justice to conclude that because one of the two periods 2 years/1 year for which the employee/appellant may exit the respondent’s employment after her training in the appellant’s training bond was not deleted then the agreement is uncertain and that the appellant can resign her appointment immediately upon the completion of her training as she has done in this matter without refunding the cost of the training incurred and borne by the respondent. The Court went on to reason that, that cannot be the intention of the parties in the agreement. I find it germane to refer to the persuasive decision of the India case of Central Inland Water Transport Corporation v. Brojonath Ganguly [1986] IILJ 171 SC, where the Supreme Court of India held that an employee has a right to resign from the employment even if he has agreed in the employment bond to serve the employer for a specific period of time. I took the liberty of highlighting all the above cited decisions to elucidate on the enforceability of a reasonable training bond. I find from all these decisions that reasonability or otherwise of a training bond is relative, in other words it is dependent on primacy of fact of each case. There is however, no gainsaying the fact as adduced from all the above captured case law authorities that training bonds are enforceable where there is no contention on an executed training bond. Applying the extant position of the law and given a judicial teeth to it by Courts as seen in the above captured cases to this instance, it will accord with the position of the law to find that the training bond executed by the 1^st claimant and the 1^st defendant as guaranteed by the 2^nd and 3^rd claimants is enforceable against any one in breach of same in accordance with the same agreement/bond, i.e. exhibit BA6. Infact, the 1^st claimant is not denying that he has to refund the remainder of the period he ought to have served the 1^st defendant, meanwhile he also contended that the 1^st defendant equally breached clause 8 of the agreement in that it failed to pay for his tuition, Boarding, Examination fees, provide books and allowances. The claimants area of contention as regards 1^st claimant is that the 1^st defendant failed to give him the calculation of the amount to be paid on a pro rata basis and to the 2^nd and 3^rd claimants, they were not informed of the amount outstanding before the 1^st defendant started deducting the money from their salaries. It is therefore, my finding that the training bond executed by the 1^st claimant and the 1^st defendant dated the 7^th November, 2006 as guaranteed by the 2^nd and 3^rd claimants id est exhibit BA6 is enforceable in law. I so hold.

Claimants by reliefs 3 and 4 are seeking the declaration of the Court that the 1^st claimant is entitled to be notified of the amount payable to the defendants having served for twenty months after returning to the defendants on the pro rata basis on which the outstanding payment is to be made before enforcing the deduction against his guarantors; that the act of the defendants in extending the three year bond contractual agreement between 2^nd and 3^rd claimants to five years without their consent and concurrence and also enforcing same against them is unlawful, unconstitutional and inconsistent with the terms of the bond governing their contractual relationship. The learned claimants’ counsel argued that at the time the 1^st Claimant withdrew his service and up to this present some issues such as the number of years that went into the 1^st Claimant’s training and the number of years that the 1st Claimant should pay back (if any) vis-a-vis his Guarantors, according to learned counsel, the defendants failed to ascertain all these before they started making deductions from the 2^nd and 3^rd claimants’ salaries. It is the further submission of learned counsel that the three year bond which the 1^st Claimant executed with the 1^st Defendant’s institution in all material forms satisfied the provisions in Chapter VIII (3)(V) of Exhibit BA2 to which the guarantors readily acknowledged their indebtedness but that this cannot be said of the subsequent leave approval arrangement of the Defendants with the 1^st Claimant. Further contention of counsel is that the two year study leave extension so called should have been with a separate agreement between the 1^st defendant institution and the 1^st Claimant which requires a separate bond with the express approval or confirmation in writing of either the guarantors to the three(3) years bond or separate agreement entirely and that in all of the two(2) years extension hanging in the blues, that the Defendants ought ordinarily to have defined, ascertained and come to a conclusion on same before any recovery could be said to be meaningful. It is also submitted that the sureties, in the instant case should have been exempted from this other extension not covered by the bond. Reference was made to the case of Auto Import Export v Adebayo [2005] 19 NWLR (Pt. 959) PG 44 At 127-128, paras H-B. Learned counsel submitted further that the Defendants have failed to discharge their duties under the contractual bond with the Claimants. Learned counsel to the defendants on his own part, submitted that the 1st defendant is entitled by virtue of the Staff Development Award/Service Agreement dated the 7th day of November, 2006, together with the Bond attached therewith to the refund of monies paid as salaries to the 1st claimant during his study leave with pay abroad should the 1st claimant fails to comply with all the terms and conditions therein. It is the submission of counsel that it is in evidence in this case that the 1st claimant on resumption of his duties after his study leave abroad spent only twenty (20) months with the 1st defendant instead of 5 years as stipulated in Exhibit BA6 and that the evidence of CW1 and CW2 on 17th May, 2017 and that of DW1 on 12th February, 2018 show that the 1^st claimant violated the terms and conditions of Exhibit BA6 and that the 1^st defendant therefore is entitled to the refund of all the monies paid to the 1^st claimant for the period of years granted him to pursue his Ph.D. abroad, while the provisions of paragraphs 16, 17, 18 and 22 of Exhibit BA6 was commended to the Court. Again, while referring to the authorities of Air Via Limited v. Oriental Airlines Limited [2005] 5 WRN P. 1 at (pp. 31 – 33), lines 25 – 5; WELCO industrial S.P.A. v. J.I. Mwamyanwu & Sons Enterprises Limited [2005] 32 WRN Vol. 32 P. 133 @ (pp. 161 – 162) lines 35 – 35, he finally submitted that in law, contract which is validly entered between parties are binding. I am in absolute agreement with the submission of learned defence counsel on the bindingness of an agreement on the parties who executed same. Now, talking about the bindingness of an agreement, in this case the only agreement and training bond executed by the claimants and the 1^st defendant is exhibit BA6 as stated supra and that in law is the only binding agreement between the 1^st defendant and the claimants. Meaning, by exhibit BA6, the 1^st claimant is to serve the 1^st defendant for 3 years as stated earlier in this judgment, for which he had served 20 months and thus by that token, he has to refund his salary for a year and 4 months to the 1^st defendant. Respecting the 2^nd and 3^rd claimants they are equally bound by that bond to refund salary of the 1^st claimant for 16 months in the event that the 1^st claimant fails to refund same. This is as required by clause 23 of the agreement/bond executed by them. I take the liberty of capturing it for ease of reference thus-

The Sureties/Guarantors hereby undertake thatif the Trainee fails to observe and perform any of the obligations herein before contained,he shall indemnify the University against all losses, costs expended occasioned by such failure and non-observance and in particular the Suretee shall indemnify the University up to the amount spent on the Trainee and he shall be liable as if primarily liable to the University.[Emphasis mine].

It is apparent from the above captured clause that the 2^nd and 3^rd claimants will indemnify the university only if the 1^st claimant fails to perform any of the obligation contained in exhibit BA6 as underlined above and not under any other agreement or letter. The grouse of the 2^nd and 3^rd claimants is that they were not informed of the 1^st claimant indebtedness before deductions of same was commenced by the 1^st defendant also that they are bound by exhibit BA6 and no other agreement. The action of the 1^st defendant in deducting money from the salary of the duo to indemnify 1^st claimant’s 16 months salary is not wrong per exhibit BA6, what is wrong is the failure to inform them of the outstanding amount to be refunded before it commenced deductions from their salaries. I equally agree with the learned claimants’ counsel that the 1^st defendant ought to have ascertained the indebtedness of the claimants before making deductions from the salaries of the 2^nd and 3^rd claimants, that is in breach of clause 18 of exhibit BA6. Be that as it may, a pertinent question that requires an answer is having served the 1^st defendant for 20 months before his withdrawal from their employ, how many years is outstanding for the 1^st claimant to refund to the 1^st defendant. It is obvious by exhibit BA6 that the 1^st claimant ought to have served for 3 years as stipulated in that agreement, the defendants in their counter affidavit filed on the 20^th July, 2016, deposed to by one Mrs Joy Olanrewaju, at paragraph 5(k) of same averred that the 2^nd and 3^rd claimants voluntarily agreed to be guarantors and executed bond that they will be responsible should the 1^st claimant fail to serve the University for 3 years of his resumption from study leave. The defendants went on to further aver at paragraph 5 (m) that “since the 1^st claimant only stayed with the university for the period of one year eight months instead of 3 years as stated in the bond agreement, the above provisions applies” It is obvious from the above captured averments which is a process on record of this Court at pages 225 to 229 of the case file, (this Court is at liberty to consider any document on record in arriving at the justice of the case); that all the parties to exhibit BA6 are ad idem that the 1^st claimant is bonded for 3 years in accordance with the training agreement/bond and nothing more. In effect the 1^st claimant is only bonded for 3 years, failing which the 2^nd and 3^rd claimants are to refund the outstanding amount in compliance with exhibit BA6 and not 5 years as alleged by the defendants. This is so in view of the fact that they only executed exhibit BA6 and no other document as stated above in this judgment. They cannot be bound by any other document for which they did not execute. 1^st claimant’s extension of study was by exhibit BA7 which was an approval solely by the appointment and Promotion Committee (Academic) at its meeting held on 7^th June, 2010. If the defendants intended that the 1^st claimant is to be bonded by exhibit BA7, they would have executed another agreement/bond as in the case of Overland Airways Ltd v. Oladeji Afolayan & Anor supra, or in the alternative would have referenced exhibit BA6 in exhibit BA7. The law forbids the Court or the parties to read into/embellished exhibit BA6 with what was not stated therein. See Oforishe v. Nig. Gas Co. Ltd [2017] LPELR-42766SC; Dr. Useni Uwah & Anor v. Dr. Edmunton T. Akpabio & Anor [2014] legal pedia SC YPY4. To find that exhibit BA7 is an extension of exhibit BA6 is like dressing a mule to look like a gazelle, or in the alternative, imputing or reading into exhibit BA6 an external issue that was not intended by the parties, and that I must say will occasion injustice to the 2^nd and 3^rd claimants. I have held supra in this judgment that the decision of the 1^st defendant to deduct monies from the 2^nd and 3^rd claimants without informing them is an affront and a breach of the fundamental right of the 2^nd and 3^rd claimants to their earned personal emoluments, moreso, when the 1^st claimant is not denying his responsibility under the bond. The amount outstanding is to be treated like a debt which ought to be demanded for before deductions may be made from their salaries. It is thus unlawful for its failure to intimate them of their indebtedness before making deductions from their salaries which deduction by the memo filed by the defendants has exceeded the amount they ought to have refunded. Consequently, I order the 1^st defendant to refund to the 2^nd and 3^rd claimants all the amount deducted from their salaries since August 2015 till date. I so find and hold.

Claimants are by their reliefs 7 and 8 seeking for an injunction restraining the defendants from making further deductions from the salary of the 2^nd and 3^rd claimants and damages for the unlawful deductions from their salary. It is the decision of this Court above that the deductions made from the salaries of the 2^nd and 3^rd claimants by the 1^st defendant was unlawful and a breach of their fundamental right, it thus goes without saying that the defendants are barred from making further deductions from the salaries of the duo. For the avoidance of doubt, the defendants are hereby restrained henceforth from making any further deductions from the salaries of both the 2^nd and 3^rd claimants. As regards damages, damages, the apex Court in Elf Petroleum v. Umah & Ors [2018] LPELR-43600SC, held that in the award of general damages, the Court has a wide, enormous and far reaching power comparable to the exercise of discretion of the Court. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of. It will serve the best interest of justice to award damages to the 2^nd and 3^rd claimants in the circumstances of this case, the defendants having denied them of the use and benefit of their earned salaries. It is in the light of this that award the 2^nd and 3^rd claimants damages in the sum of N200,000 each. I so find and hold.

Finally, respecting issue four, which is whether or not the defendants are entitled to their counterclaim. I have held in this judgment that the 1^st claimant and the 1^st defendant breached the training bond agreement, i.e. exhibit BA6. The 1^st claimant is however, not contesting the fact that he has to refund some money for his refusal to continue in the services of the 1^st defendant for three years, he admitted in his pleadings that he ought to have served the 1^st defendant for 3 years but withdrew his services after 20 months, hence he is to refund the outstanding amount for the remainder of 16 months. He is not also claiming for his tuition, boarding, examination fees and payments for books, hence the Court cannot make any award for that. This is because Courts do not dish out cupcakes to litigants. The defendants are counterclaiming the sum of N9,756,935.01. Learned defence counsel submitted that the 1st defendant is entitled to the judgment of this Court in favour of its counter-claim against the claimants based on the terms and conditions of the said Exhibit BA6 in the instant case. Counsel went ahead to submit that on the 19th day of February, 2018, the outstanding indebtedness of the 1st claimant was filed before the Court as ordered by the Court on 12th February, 2018, that the sum of N1,145,833.38 (One Million One Hundred and Forty Five Thousand Eight Hundred and Thirty Three Naira Thirty Eight kobo) was stated by the Ag. Bursar of the 1st defendant as balance sum to be refunded as at December, 2017. Counsel urged the Court to give judgment based on the said current sum (less the deductions from January to the date of judgment in this suit at the sum of N81,307.79 (Eighty one Thousand Three Hundred and Seven Naira and Seventy Nine kobo) monthly from each of the 2^nd and 3^rd claimants respectively. The claimants’ response to this is that the defendants are not entitled to their counterclaim, according to them it is vague and since they have already made some deductions from the 2^nd and 3^rd claimants’ salaries. I agree that the defendants counterclaim is vague in view of deductions already made from the salaries of the 2^nd and 3^rd claimants. It is true that this Court gave a directive to the defendants to submit to the Court a detailed breakdown of the amount outstanding to be refunded by the 1^st claimant. A perusal of the internal memorandum dated the 15^th February, 2018 and signed by the Acting Bursar of the 1^st defendant, reveals that the 1^st claimant is allegedly to refund the sum of N9,947,336.47, this calculation I believe is based on the assumed position of the defendants that 1^st claimant is to refund 5years salary, for which the Court has held otherwise. To the defendants after deductions from the 2^nd and 3^rd claimants salaries, the amount outstanding is put at N1,145,833.38 as at December, 2017. They put the amount deducted from the 2^nd and 3^rd claimants salary at N4,118,239.56. There is no evidence before me to evince that the defendants stopped deductions from the salaries of the 2^nd and 3^rd defendants since December, 2015 when this case was initiated. I have also held supra in this judgment that the 1^st defendant refund to the 2^nd and 3^rd claimants all monies deducted from their salaries till date. This Court is one of justice and equity not only that, it stands to do and ensure that justice is done to all parties in this suit and as expressed by Plato the great philosopher in the book titled “The Republic” translated by Benjamin Jowett; at page 56, where he asked this question, “What is this due and proper thing which justice does, and to whom? He answered that justice does good to friends and harm to enemies. But in what way good or harm? In making alliances with the one, and going to war with the other.’ Then in time of peace what is the good of justice? The answer is that justice is of use in contracts, and contracts are money partnerships. Yes; but how in such partnerships is the just man of more use than any other man? ‘When you want to have money safely kept and not used. ’Then justice will be useful when money is useless.” Meaning justice is of more value than money, justice does well in this Court for both ‘friends’ and ‘enemies’ and not otherwise. Now, what is the justice of this case to all the parties in this suit? Specifically, to the 1^st claimant and the defendants. I reiterate my decision earlier in this judgment that both the 1^st defendant and the 1^st claimant breached exhibit BA6, I equally held that the 1^st claimant is only bonded under exhibit BA6 for three years and not five years as contended by the defendants. I have also decided supra in this judgment that the 1^st defendant is to refund all monies deducted from the 2^nd and 3^rd claimants’ salary till date. What then is the outstanding balance to be refunded to the 1^st defendant by the 1^st claimant in the light of all this? It is deducible from the memorandum forwarded to the Court as well as the claimants dated 15^th February, 2018, that the 1^st claimant’s salary for May, 2015 is N190,401.46. Having held that claimant is to refund the salary for 16 months to the 1^st defendant, I therefore find and hold that the defendants counterclaim succeeds only to the extent that they are entitled to be paid the sum of N3,046,423.36 by the 1^st claimant. Accordingly, the 1^st claimant is ordered to pay the sum of N3,046,423.36 to the defendants. I so find and hold.

In sum, it is obvious from all the reasoning above that the claimants’ claims succeed to a certain extent while the defendants’ counterclaims also succeed in part. It is for the avoidance of doubt that I declare and order as follows-

That the 1^st claimant’s withdrawal from the service of the 1^st defendant with effect from 4^th May, 2015 is in consonance with his terms of employment and thus lawful, effective and valid.
That the termination of the appointment of the 1^st claimant by the 1^st defendant on the 22^nd July, 2015 is unlawful, null void and thus set aside.
That reasonable training bonds are enforceable in law.
That the deduction of the 1^st claimant’s debt from the salaries of both the 2^nd and 3^rd claimants without a prior demand for same is unlawful.
That the defendants are restrained from making further deductions from the salaries of the 2^nd and 3^rd claimants.
That the defendants are to refund forthwith to the 2^nd and 3^rd claimants all monies deducted from their salaries till date.
That the 2^nd and 3^rd claimants’ are entitled to damages in the sum N200,000 each to be paid by the 1^st defendant.