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SKYJET AVIATION SERVICE LTD. -VS- LEONARD JOHANNES OBERHOLZER

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

ON WEDNESDAY 5TH DAY OF FEBRUARY, 2020

BEFORE HIS LORDSHIP: HON. JUSTICE  S. O. ADENIYI

SUIT NO: NICN/KD/67/2017

BETWEEN:

SKYJET AVIATION SERVICES LTD……………..CLAIMANT

 AND

LEONARD JOHANNES OBERHOLZER………….DEFENDANT

J U D G E M E N T

The Claimant is an Aircraft Charter Company engaged in airline operations and other aviation services. The case of the Claimant as garnered from the claims before the Court, is that in May, 2016, an offer of employment was made to the Defendant as a captain upon terms and conditions mutually agreed to by both parties for a period of three years that is, from 8th May, 2016 to 7th May, 2019. One of the terms of the employment contract was that either party shall give six months’ written notice or six months’ salary in lieu of notice to terminate the contract. The Claimant contends that barely a year into the execution of the contract, the Defendant abruptly terminated the contract which action caused huge financial losses to the Claimant. The contention of the Claimant further is that, the Defendant has a contractual obligation to settle the expenses incurred for his training but that the Claimant absconded without doing so.

  1. Being aggrieved by the Defendant’s purported unlawful termination and/or breach of the said contract, the Claimant commenced the instant action;videComplaint and Statement of Facts filed in this Court on 18/12/2017, whereby it claimed against the Defendant, the reliefs set out as follows:
  2. The sum of $16,193.50 USD representing the outstanding sum due to the Claimant from the Defendant arising from cost of training the Defendant while the Defendant was under the Claimant’s employment which the Defendant is under obligation to refund by virtue of the employment contract dated 16/05/2016.
  3. The sum of $51,000.USD being the Defendant’s six (6) months’ salary in lieu of notice.
  4. 10% post judgement interest until final liquidation of the judgement debt.
  5. Cost of this action.
  6. The Defendant joined issues with the Claimant by filing aStatement of Defenceon 10/04/2018 to which a Counter-Claim was subjoined. The Defendant contended, in summary, that some of the clauses of the said employment contract were not in compliance with statutory provisions and various international standards of labor and employment contracts. The Defendant further contended that his resignation occurred out of frustration as he was placed in a very unbearable situation during his tenure of his contract with the Claimant. The Defendant also contended that the Claimant breached the provisions of the contract of by refusing and/or neglecting to pay the salary of the month of August 2017.
  7. Whereof the Defendant Counter – Claimed against the Claimant as follows:
  8. The sum of $8500 (Eight Thousand Five Hundred USD) being special damages for the salary of August 2017 duly earned and acknowledged by the Claimant.
  9. The sum of $51,000.00 (Fifty One Thousand USD) being salary payable by the Defendant/Claimant to the Counter- Claimant from September 2017 till February 2018.

iii.               The sum of $10,000.00 (Ten Thousand USD) being general damages for the trauma and pains the Counter Claimant suffered in the course of his employment with the Defendant/ Claimant.

  1. The cost of this suit as may be assessed by the Honourable Court.

The Claimant further filed a Reply to the Defendants’ Statement of Defence and Defence to Counter Claim on 08/05/2018.

  1. At the plenary trial, oneSanni Bukar, the Human Resource Manager of the Claimant testified as her sole witness. He adopted hisStatement on Oath as his oral testimony and further tendered sixteen (16) sets of documents as exhibits to further substantiate the Claimant’s case. He was thereafter cross-examined by the Defendants’ learned counsel.

As I had earlier noted, the Defendant filed a Statement of Defendant and the witness deposition on oath of their sole witness and Counter-Claim, but he elected to rest his case on that of the Claimant’s.

  1. Thereafter, parties filed and exchanged their written final addressesas prescribed by the provisions ofOrder 45 of the Rules of this Court.

In the address filed on behalf of the Claimant on 30/05/2019, and settled by Kolawole Mustapha, Esq., of counsel for the Claimant, a sole issue was canvassed as having arisen for determination in this suit, that is:

Whether the Claimant had led sufficient evidence at trial to be entitled to the reliefs sought in the Complaint and Claimant’s Statement of Facts?

In the final address filed on behalf of the Defendant on 01/08/2019, its learned counsel, Adekunle Ayeni, Esq., identified two issues as having arisen for determination in this suit, namely:

  1. Whether the Claimant is entitled to any of the reliefs sought in the Statement of Facts.
  2. Whether the Claimant is liable to pay the sum of $8,500 (Eight Thousand Five Hundred Dollars) being the salary for the month of August 2017 as agreed by both parties.

The Reply on Points of Law to the Defendant’s written address was filed on 22/08/2019.

  1. Upon a proper assessment of the pleadings of parties, the totality of admissible evidence adduced on record and the totality of the circumstances of this case, it is my considered view that the narrow issues that call for determination in this suit, without prejudice to the issues already formulated by learned counsel on either side, can be succinctly formulated as follows:
  2. Whether the Defendant, having admitted his financial obligation to the Claimant; and having pleaded for time to pay same, is not liable to the Claimant for the reliefs sought?
  3. Whether the Defendant has discharged the burden of proving his entitlement to his Counter Claim?

I have also taken cognizance of the totality of the arguments canvassed by the respective learned counsel in their written addresses; to which I shall endeavour to make specific reference as I deem needful in the course of this judgment.

ISSUE ONE

  1. For starters, it is pertinent to remark that the case put forward by the Claimant is principally documentary in nature.A number of documents were tendered on which it relied heavily to illustrate and establish its position in this case.

In that circumstance, the focus of the Court is directed principally at the documents tendered as the yardstick to assess the oral testimony adduced by the Claimant’s witness. Charting this course is in consonance with the established legal proposition that documentary evidence, being the best evidence, is the yardstick or hanger by which to assess the veracity or credibility of oral testimony. See Ezemba Vs Ibeneme [2004] 14 NWLR (Pt 894) 617; Interdrill (Nig.) Limited Vs UBA Plc [2017] LPELR-41907(SC).

  1. It is pertinent to further note and as correctly submitted by learned counsel for the Claimant that where a Defendant does not adduce evidence, the evidence before the Court goes one way leaving the Court with no other evidence or set of facts with which to do the measuring of the scale. In a situation as the present case, where a Defendant leads no evidence in proof of the facts pleaded by him but rests his case on that of the Claimant, such pleading is deemed abandoned and the Defendant is deemed to have completely accepted both the pleadings and evidence or the case presented by the Claimant.See:U.B.N Plc Vs Astra Builders (W.A. Ltd) [2010] 5 NWLR (Pt 1186) 1; Skye Bank Plc Vs Akinpelu [2010] 9 NWLR (Pt 1198) 179; Aregbesola Vs Oyinlola [2011] 9 NWLR (Pt 1253) 458; Admin/Exec; Estate, Abacha Vs Eke-Spiff [2009] 7 NWLR (Pt 1139) 97; Aondo Vs Benue Links [2019] LPELR 46876
  2. Parties are not in disagreement that the relationship between the Claimant and the Defendant that resulted in the institution of the instant suit is contractual in nature. In this regard, the Claimant led evidence, through its sole witness, to show that there was a binding employment agreement between the parties and tendered in evidence asExhibit C1; the copy of the employment contract. The CW1 further testified that by virtue ofExhibit C1, the duration of the contract was for three years certain, effective from 08/05/2016 till 07/05/2019.
  3. The basic or fundamental terms of the agreement critical to the resolution of the issue at hand, as can be gleaned fromExhibit C1, are set out as follows:
  4. That the commencement date is from 08/05/2016 to 07/05/2019 – Clause 1.
  5. That the Claimant shall send the Defendant on training at the Claimant’s expenses and that the Defendant shall be made to sign a Loan Agreement to the effect of defraying the expenses of the Claimant provided the Defendant did not serve the Claimant within the contract period stipulated in the agreement – Clause 2.
  6. That Claimant shall pay the Defendant a monthly salary of $8,500.00 (Eight Thousand, Five Hundred USD) – Clause 4.
  7. That the Claimant shall provide ground transportation for the official and private use of the Defendant and an adequate and fully furnished accommodation free of charge – Clauses 3 and 6.
  8. That during the pendency of the agreement either party shall terminate by giving written  notice of six (6) months or six (6) months’ salary in lieu of notice – Clause 10.
  9. That the agreement shall be construed in accordance with the laws of the Federal Republic of Nigeria – Clause 17.

I further make reference, in this regard, to the averments contained in paragraphs 3, 4, 5 and 6 of the Statement of Facts .

  1. The case of the Claimant, as further told by the CW1 in his Witness Deposition on Oath, is that on 06/09/2017, the Defendant breached the terms of the employment agreement by abruptly resigning his appointment via an email, contrary to the manner stipulated in Exhibit C1; that the Defendant is under obligation to pay the Claimant six (6) months’ salary in lieu of notice and that during the pendency of the Defendant’s employment, the Claimant incurred expenses for training and other expenses on the Defendant in the sum of $77,993.50 USD which the Defendant is under obligation to defray. In this regard, the witness tendered in evidence asExhibitsC5 and C6, the invoice proforma of Emirate Flight training and the Claimant’s letter of authorization of transfer of money to the Defendant’s account.
  2. The CW1 testified further that the Claimant sent a detailed account of expenses it incurred to the Defendant; that the Defendant in his reply promised that he would not abscond and pleaded for time to fulfill his financial obligation to the Claimant. The said notice of resignation via email by the Defendant, the Claimant’s emails to demand for settlement of the Defendant’s obligation for expenses incurred and the Defendant’s reply were admitted in evidence asExhibits C2, C2A, C2B and C2Crespectively.
  3. The witness further testified that despite the promises made by the Defendant, he still failed to refund the Claimant for the expenses and that he absconded. Consequently, the Claimant deducted the sum of $8,500.00 (Eight Thousand, Five Hundred USD) being the Defendant’s salary for the month of August 2017 and the sum of $2,300.00 (Two Thousand, Three Hundred USD) that was paid by the Defendant as refund to offset part of the Defendant’s financial obligation.
  4. The witness testified further that the Defendant had previously been employed in the services of the Claimant and that he is familiar with the terms of the contract of employment. The e-mail of Defendant requesting for absorption to the Claimant and the employment contract executed by the parties on 01/07/2009 were tendered in evidence asExhibits C4and C3 respectively.

The witness further testified that the Defendant did not only breach the terms of employment by resigning before the expiration of the term agreed but he also presented simulator reports that were not genuine. He tendered in evidence as Exhibits C7 and C8, the internal memo of the Claimant and the letter of the chairman of the Claimant to Director of South Africa Civil Aviation Authority.

  1. Now, it is an elementary principle of contract and indeed well settled that parties are generally bound by the terms and or conditions of an agreement which they voluntarily entered into. It is also trite that the Courts are bound by the terms of an agreement which parties before it have freely and validly executed. Thus, if a Court is called upon to construe an agreement, the Court cannot but limit itself to the express terms of the agreement as indicated and/or specified by the parties. This is because where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add, vary, subtract from or contradict the written terms of the contract or agreement. Therefore, where a Court is faced with the task of interpreting a written instruction or agreement from one party to the other or between two or more parties (as the case may be), it is expected that it will carry out its duty within the walls or confines of the written and express terms of the instruction or agreement. See the cases of Babatunde & Anor Vs Bank of North Ltd & Ors[2011] LPELR 8249(SC);Chukwu & Anor Vs Chukwu & Ors [2018] LPELR 4548.
  2. The task this Honourable Court is to undertake is to examine the terms of the employment of the contract as embodied in Exhibit C1 if the terms have been breached by the Defendant as alleged by the Claimant. A breach of contract is said to be committed when a party to the contract without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or either performs the obligation defectively or incapacitates himself from performing the contract. SeeAdeoti Vs. Ayorinde[2001] 6 NWLR (Pt. 709) 336; Obajimi Vs. Adediji [2008] 3 NWLR (Pt. 1073) 1.
  3. Now, on the basis of the evidence on record as reviewed in the foregoing, it is my firm view that the Claimant has established a clear case of breach of the employment contract by the Defendant. This finding flows clearly from the evidence of the CW1 in paragraphs7, 8 and 13of his Witness Deposition on Oath.

To further support these facts, CW1 tendered in evidence Exhibits C1, C2 and C2A. In Exhibit C2, the Defendant stated in his email to the Claimant as follows:

“Good morning sir,

I am very very sorry sir. With this letter I would like to give notice of resignation with immediate effect”

It is crystal clear that the Defendant is in clear breach of the terms of Exhibit C1 for failure to give adequate notice of six months as agreed by parties. I so hold.

  1. It is also not difficult for the Court to make a finding, in the first instance that the Defendant having breached the terms agreed is required to give to the Claimant six (6) months’ salary in lieu of notice.In Chukwuma Vs Shell Petroleum Development Co Ltd [1993] 4 NWLR (Pt 289) 512, it was held that where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment of salary in lieu of the length of notice and the latter course is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract.
  2. Furthermore, the evidence of CW1 is that the Claimant demanded from the Defendant viaExhibits C2A and C2Bthe refund of his financial obligation to the Claimant which includes the money expended for the Defendant’s training. The Defendant in his reply of 11/09/2017 – Exhibit C2C stated as follows:

“Mr. Sanni,

Good morning. I am doing everything I can to get some payment schedule worked out. I just need time to get everything sorted out. Rest assured I will not run away from my obligations.

Kind regards,

Nardo.

I hold the firm view that by this exhibit the Defendant has largely admitted the Claimant’s claim. The law is well settled that what is admitted requires no further proof. See the provisions of Section 20 of the Evidence Act 2011.

An admission is a statement, oral or written (expressed or implied) which is made by a party to civil proceedings and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement. In Ojukwu Vs Onwudiwe & Ors [1984] 2 SC 15 at 38, the Supreme Court, per Aniagolu JSC (as he then was), put the principle succinctly when he held as follows:

“Another principle deeply enshrined in our jurisprudence is that admissions made do not require to be proved for the simple reason, among others that ‘out of the abundance of the heart the mouth speaketh’ and that no better proof is required than that which an adversary wholly and voluntarily owns up.”

See also Olubode Vs Adesina [1977] 5 SC 210; Seismograph Services Nig. Ltd Vs Eyuafe [1976] 9 & 10 SC 135 at 146 Veritas Insurance Co. Ltd. Vs Citi Trusts Investments Ltd. [1993] 3 NWLR (Pt. 281) 3491.

  1. Clear evidence on record is that the Defendant resigned his appointment without giving the required notice and without offering any reasons for so doing. Clear and unequivocal evidence is further that, the Defendant refunded sum $2,300.00 USD to the Claimant as part of his obligation to the Claimant; and when the Claimant wrote to demand for him to settle his obligation to the Claimant, the Defendant indeed offered to pay and pleaded for time to pay.
  2. Having regard therefore the Defendant’s unequivocal admission of liability to the Claimant of breach of contract of employment as stated in Exhibit C2 and the fact that he made part payment of his obligation and further pleaded for time to make payments, I must state that it is rather belated or incongruous for the learned counsel for the Defendant to contend or attempt to disclaim the Defendant’s liability for failure to sign a loan agreement as required in clause 2 of Exhibit C1.

Therefore, for the learned counsel for the Defendant to turn around to contend that Exhibits C5 and C6 tendered by the Claimant in support of its case for refund and or payment of the expenses incurred by the Claimant is not conclusive, cogent and reliable, after the Defendant had already admitted the breach and offered reparation, amounted to approbating and reprobating at the same time. I so hold.

It is trite law that parties are not allowed to approbate and reprobate in the conduct of their cases. See Ezomo Vs. AG Bendel [1986] 4 NWLR (Pt. 36) 448 @ 462; Kayode Vs. Odutola [2001] 11 NWLR (Pt. 725) 659.

  1. As correctly submitted by the learned counsel for the Claimant, a party who admitted a fact is estopped from later denying the truth of the admitted fact. See the provision ofSection 169of the Evidence Act and the authorities of Bank of the North Ltd Vs Yau [2001] 10 NWLR (Pt 721) 408; Anason Farms Ltd Vs NAL Merchant Bank [1994] 3 NWLR (Pt 331) 241 cited by the Claimant’s counsel. See also Ehidimhen Vs Musa [2000] 8 NWLR (Pt. 669) 640; Ukaegbu Vs Ugoji [1991] 6 NWLR (Pt. 196) 127 @ 143-144.

In the present case, the Claimant wrote Exhibit C2B (the Claimant’s list of Defendant’s financial obligation) to the Defendant. Subsequently in his reply in Exhibit C2C to the Claimant, the Defendant admitted his financial liability and pleaded with the Claimant to give him time to “get everything sorted out”. It is on record that the Defendant absconded and failed to fulfill his financial obligation to the Claimant.

  1. Furthermore, the evidence of CW1 under cross examination by the learned Defendant’son the issue of the loan agreement is as follows:

“I do not have the loan agreement but this has been overtaken by event when the Defendant agreed to settle the outstanding”

The weight of evidence against the Defendant on the issue of admission of the Claimant’s case, is to say the least, very generous. If not a tacit acceptance of liability, what other explanation can there be for the Defendant’s plea in Exhibit C2C, for time to “do everything he can to get some payment schedule worked out”?

It is sound logic to reason that the Defendant would not have taken steps to make any refund of $2,300.00 to the Claimant if in the first place he did not agree that he owed the Claimant financial obligation for breach of the employment responsible for the erroneous debit. I so hold.

  1. Permit me at this juncture to address the argument of the learned counsel for the Defendant on the issue of illegality of contractual terms of the parties. Learned counsel had argued that it is against all reasonableness and the intendment of the drafters of the Labour Act the demand by the Claimant for six (6) months’ salary in lieu of notice from the Defendant. He further argued that the Claimant’s demand is totally illegal and a nullity. His argument is premised on the provision ofSection 11 of the Labour Act, Cap L1 Laws of the Federation 2004. Learned counsel argued further that by virtue ofSection 11 (2) (d) of the Labour Act (supra), the highest notice that can be given by parties under the Act is one month provided that the contract has continued for a period of 5 years or more.
  2. I make haste to dismiss the incredible arguments of the Defendant’s learned counsel that the Claimant’s claim for the sum of $51,000.00 (Fifty – One Thousand USD) as payment in lieu of notice from the Defendant as illegal and unfounded. With due respect, learned counsel’s argument is totally erroneous and misconstrued. Section 11 of the Labour Act (supra) is inapplicable to the present case because the length of notice was expressly stated in Exhibit C1 by the parties.

By virtue of Section 9 (7) of the Labour Act (supra), a contract of employment shall be terminated as follows:

(a)     by the expiry of the period for which it was made; or

(b)     by the death of the worker before the expiry of that period; or

(c)      by notice in accordance with Section 11 of this Act or in any other way in which a contract is legally terminable or held to be terminated

  1. It has been accepted that in the construction of a contract of employment, apart from the relevant statutory provisions, any question as to the duration of employment, its determination by notice, the length of notice required to determine it or the time at which notice to determine it may be given will depend on the intention of the parties either revealed in the express or implied terms of the contract or to be inferred from all the surrounding circumstances.

I am therefore unable to agree with the extremely wide and wild interpretation learned Defendant’s counsel accorded Section 11 Labour Act (supra), to mean that the contract is illegal and contrary to best international standards of labour. These arguments were not supported by evidence led on the record. I therefore reject the totality of the arguments canvassed by the Defendant’s learned counsel on the issue.

I agree with the submission of the learned counsel for the Claimant that the parties in the instant case are bound by the terms of contract which they had freely entered into. The Defendant having freely executed Exhibit C1 is bound by the terms in clause 10 thereof. I so hold.

  1. The finding of the Court is that on the basis of the cogent, credible and uncontroverted evidence adduced by the Claimant and the evidence of admission offered by the Defendant, the Claimant is eminently entitled to his claims. I so hold.

ISSUE 2

  1. It is clear from the record of this Honourable Court that the Defendant did not lead evidence in defence of the instant suit or in proof of his Counter – Claim. It is an elementary principle of law that pleadings must be substantiated and proved by evidence. This is because pleadings have no mouth to speak to Court and so they speak through witnesses. If witnesses do not narrate them in Court they become moribund and dead at all time. The point being said is that it is difficult for a party in a suit to succeed on the strength of elaborate averments in the pleadings in respect of which he has abandoned. SeeNigeria Army Council Vs Erhabor[2018] LPELR 44958; Hadejia Vs Abbas [2016] LPELR-40234; Ademeso Vs Okoro [2005] 14 NWLR (Pt 945) 304.

Without further ado, the Defendant’s Statement of Defence is deemed abandoned and his Counter – Claim is hereby accordingly dismissed. I so hold.

  1. In the final analysis, I hereby resolve the two issues set down for determination substantially in favour of the Claimant. The judgment of this Court is that the Claimant’s action is substantially meritorious on the evidence led on the record and the same hereby substantially succeeds. Accordingly it is hereby declared and ordered as follows:
  2. The Defendant is hereby ordered to pay to the Claimant forthwith the sum of USD16,193.50 (Sixteen Thousand, One Hundred and Ninety Three US Dollars) only, being the outstanding sum due to the Claimant from the Defendant arising from the cost of training the Defendant which the Defendant is under obligation to refund by virtue of the employment contract.
  3. The sum of $51,000 (Fifty – One Thousand US Dollars) only.

Parties shall bear their respective costs.

SINMISOLA O. ADENIYI

(Presiding Judge)

05/02/2020

 

Legal representation:

Kolawole Mustapha Esq. for Claimant

Adekunle Ayeni Esq. for Defendant

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