DR. ABDULLAHI ILIYASU -VS- RAMAT POLYTECHNIC, MAIDUGURI

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

Before His Lordship:-

HON. JUSTICE E.D. E ISELE – JUDGE

DATE: THURSDAY 27^TH FEBRUARY, 2020 –

SUIT NO: NICN/MAID/04/2017

BETWEEN

ABDULLAHI ILIYASU…. ……………………………….CLAIMANT

AND

RAMAT POLYTECHNIC, MAIDUGURI ……………………………DEFENDANT

REPRESENTATION: Parties Present

S.J Gani, Esq. with M.M. Bello, Esq. for the Claimant

Saleh, Esq. for the Defendant

JUDGMENT

The claimant commenced this action by the writ filed at the Maiduguri Registry of this court on the 4^th August 2017. And by the further amended statement of (facts) claim filed on the 5^th of February 2019 with leave of court he claims as follows:

(a) A declaration that the resignation tendered by the claimant to the Defendant is proper and valid.

(b) An Order of this honourable court directing the Defendant to accept the valid resignation of the Claimant.

(c) A Declaration that the defendant, having not sponsored the claimant’s PhD program at Universiti Putra Malaysia, cannot compel the claimant to serve the Defendant for two (2) years or any period of time.

(d) An Order of this honourable court directing the defendant to process the claimant’s gratuity due to him.

(e) An Order of the court directing the Defendant to pay the claimant’s salary arrears of N382,398.90 (Three Hundred and Eighty Two Thousand, Three Hundred and Ninety Eight Naira, Ninety kobo) unpaid from January 2016 to June 2016 being the difference for the said months with respect to his last promotion which took effect from 1^st January 2016.

(f) An Order of the court directing the Defendant to pay the claimant’s unpaid salary from July 2016 to April 2017 in the sum of N1,913,043.31 (One Million, Nine Hundred and Thirteen Thousand and Forty Five Naira, Thirty One Kobo).

(g) An Order of the court directing the defendant to pay the claimant’s pension when due.

(h) Cost of the suit.

THE CASE OF THE CLAIMANT

It is the case of the claimant that he was by exhibit A employed by the Defendant as a lecturer III in its department of Agricultural science on 18^th March 2006 and was confirmed in 2009 by exhibit B2. In the course of the relationship the Defendant granted the claimant study leave with pay for his doctoral degree in Usman Dan Fodio University, Sokoto. The claimant was given the sum of N150,000.00 by Tet fund, on getting to Sokoto he secured another admission at the universiti, Putra Malaysia. Where upon he notified Defendant of his new admission and submitted his travel documents together with the admission letter to the Defendant who failed to respond to same and the claimant proceeded to Malaysia having not heard from the Defendant. He tendered the exhibit C the Notification for change of offer of admission dated 19^th October, 2010.

It is the claimant’s case that while in Malaysia he sent progress report to the Defendant who promoted him twice. In 2014 when he completed his programme he wrote the Defendant applying for an upward review of study allowance which the Defendant turned down on the ground that the claimant changed his institution without approval of the Defendant. He maintained that the Defendant stopped his salary from July 2016 to April 2017 and when he inquired the Defendant claimed that it was the Borno State Government that stopped it and not the Defendant.
The claimant maintains that the Defendant did not pay the difference in salary upon his promotion and he was not sponsored by the Defendant while in Malaysia and on that basis he resigned his appointment with the Defendant while in Malaysia. The Defendant refused to accept the resignation on the ground that the claimant is bonded to serve it for 3 years upon the completion of his studies. The claimant insist he did not sign any bond for his study in Malaysia as a result of which he has made out his claims against the Defendant in this suit.
THE CASE OF THE DEFENDANT

It is the case of the Defendant that upon being granted study leave, the claimant signed a bond binding him over to the Defendant at the completion of his studies to serve the Defendant for a period of 3 years. The Defendant tendered the Bond as exhibit DA dated 3/2/2010. The approval was admitted as exhibit.

5.1 The Defendant maintained that the claimant having received the payment of the scholarship in the sum of N1,500,000.00, proceeded to Sokoto to commence and proceed with the programme. And without its consent and approval the claimant purported to change his place of study for his doctoral programme from Usman Dan Fodio University Sokoto to Universiti Putra Malaysia.

The Defendant maintained further that the change from Usman Dan Folio University Sokoto to Malaysia violates the terms and conditions of his service and sponsorship granted to him to study for his PhD. That the approval granted to the claimant was to pursue his PhD at Sokoto and the sponsorship money paid to him by TETFUND was for that purpose and not any other. That it was never aware of the claimant’s charge of University which it did not approve. That a staff who had been granted study leave to study in a particular institution, but wishes to change the institution must seek the Defendants consent and express approval before doing so and there after refund the scholarship paid him for the studies in the first institution.

6.1 The Defendant also maintained that it was wrong of the claimant to assume that its silence was an approval of his movement to Malaysia. The Defendant had also maintained that the said sum of N1,500,000,00 was paid to the claimant by TETFUND (TERTIARY EDUCATION TRUST FUND) at the instance of the Defendant as employer of the claimant. Tet fund being an agency set up by the Federal Government of Nigeria to assist institutions such as the Defendant in funding its staff training programmes by paying Funds as scholarship to staff of such institutions recommended by the institutions for training programmes as the Defendant with the claimant. That the scholarship funds paid by TETFUND to the claimant is held in trust by TETFUND for the defendant.

The Defendant also maintained that it is not owning the claimant any arrears of salaries for the year 2016 or any other period, as the claimant abandoned his duty post and study thereby breached his terms of employment and the bond with the Defendant. That it did not at any time delete or remove the name of the claimant from its staff list.

7.1 The Defendant also averred that the claimant having been bonded over and having been sponsored to study at the Usman Dan Fodio University Sokoto had a duty to fulfil his part of the bond and the claimant’s resignation could not then be accepted in the circumstances of the bond he signed.

The Defendant also maintained that its scheme of service does not grant entitlement to pension to a staff who is bonded over to the Defendant until the claimant meets the terms of the bond and the claimant remains a staff of the Defendant.

8, The Defendant then proceeded to counter claim as follows:

A Declaration that the claimant having been granted approval to study at the Usman Dan Fodio University Sokoto, his change to study at the Universiti Putra Malaysia without the approval of the defendant is a breach of the terms of service and study leave granted to him.
The claimant having signed a bond to serve the Defendant for three years after his in service study leave granted to him.

iii. An Order that the claimant must comply with the terms of the study leave and bond by serving the Defendant for 3 years.

8.i. ALTERNATIVELY

A Declaration that the change of study by the claimant from the Usman Dan Fodio University Sokoto to Universiti Putra, Malaysia by the claimant without the approval of the Defendant is a breach of the terms of his study leave.

V, An Order directing the Claimant to refund to the Defendant the sponsorship money of N1,500,000.00 paid to him for his study at Usman Dan Fodio University Sokoto.

An Order directing the claimant to refund to the defendant all salaries and allowances paid to him by the Defendant from December, 2010 till December, 2015 having absconded and abandoned his studies at Sokoto and proceeded to Malaysia without the approval of the defendant. Reliance was placed on the salary payment schedule of the claimant from 2010-2016.
By his earlier pleading in response to the counter claim the claimant as Defendant to counter claim maintained that the Defendant counter claimant is not entitled to all the reliefs contained their counter claim.
THE WRITTEN ADDRESS OF THE PARTIES

At the close of the trial parties filed their written addresses in the written address of the Defendant four issues were formulated for determination:

i)Whether in the circumstances of the bond entered into between the parties (exhibit DA) the claimant is not bound to serve the Defendant after his study leave”
ii)Whether in the circumstances of the bond signed by the claimant the claimant can resign without performing his part of the bond”.

iii) Whether having failed to perform his part of the bond, the claimant is not bound to refund the sponsorship money and all salaries paid to him by the Defendant during the study leave”.

iv)“Whether in the circumstances of the evidence adduced the claimant is entitled to the reliefs he is claiming, and the Defendant is not entitled to the reliefs in its counter claim.

10.1. In response the claimant in his written address filed on 23^rd January 2019 formulated the following two issues for determination.

Whether the Defendants has valid witness statement in law to support its pleadings.
Whether considering the circumstances of this case and the evidence adduced the claimant has proved his case and is entitled to the reliefs claimed and a dismissal of the counter claim.

10.2. By Seeking the leave of court (which is granted) the Defendant argued the four issues formulated together. After going over the facts of the case at paragraph 5.03 of the written address, the Defendant stated at the last that the Ramat Polytechnic Staff scheme of services which was admitted as exhibit DD defines and governs the relationship between the claimant and the Defendant. The Defendant maintained further that where parties have reduced their relationship into writing, they are bound by the terms of that agreement and nothing that does not form part of that contract or agreement can be read or imported into it. That the court is equally bound by the terms of the agreement and cannot speculate on what has not been agreed upon by the parties or what has not been included in the terms agreed upon by the parties citing the case of ADAMS IDUFUEKO V. PFIZER PRODUCTS LTD. (2014) 12 NWLR pt 1420 p. 96 at 115,116 and 132 amongst others.

10.3. The Defendant maintained further that there is evidence in the Scheme of Service (Exhibit DD) of the Defendant that defines the parties relationship as employer/employee. That the said exhibit provides for study leave for the Defendants academic staff at Section IV (18). That the beneficiary of a study leave in the Defendant’s employment must sign a bond to serve the Defendant after the study leave at S.IV (18) (e) of the Scheme of Service. That in compliance with this requirement the Claimant signed the bond exhibit DA which binds him to serve the Defendant for the period agreed upon in the bond. That it followed that the relevant documents to consider in the determination of the rights of the parties here are the bond and the Scheme of Service. That the Claimant having signed the bond cannot extricate himself in any way from being bound by the terms of what he signed. Here, the Defendant referred to the case of U.BN. PLC V. SOARES (2012) 11 NWLR pt. 1312 p550 at 571

10.4 In response to the Claimant’s contention that the Defendant did not sponsor his studies and he could not be bonded over to serve the Defendant. Reference was made by the Defendant to the evidence before the court being exhibit C10 the Claimant’s application for study leave which was granted. The Defendant contended further that there is evidence that the Claimant was paid a sponsorship fee by TETFUND at the instance of the Defendant and that there is evidence that the Claimant was paid all his salaries and entitlements during his study leave. Here it was submitted by the Defendant that the Claimant having benefitted his contention that the Defendant did not sponsor him cannot stand and the Court was urged to so hold.

10.5 The Defendant also referred to the Claim of the Claimant that he resigned having tendered exhibit F and F1 (the resignation letter dated 7^th March 2017) which the Defendant rejected in exhibit G3. That the Claimant had also contended that having resigned, his resignation is valid and the Defendants be compelled to accept his resignation and process his benefits and pay him. On this the Defendant referred to the Scheme Service in exhibit DD Section IV (21) (d) and Section IV (18) (F) which had provided an employee, who at the end of his/her study leave fails to report back to Service will be liable to report back to Service. That Section IV (19) makes it mandatory for the employee to report to his/her head of department upon completion of his/her study leave.

10.6 The Defendant argued that while an employee has the right to sign and his resignation takes effect, where the employee is in breach of the terms of his employment, the employer is entitled to recover such breach citing BENSON V. ONITIRI (1966) NSCC 52 and FAPONNTE V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD (1991) 4 NWLR pt. 183 p 43. That the Law is also that where an employer shows that an employee has an issue to answer the employer may reject the employee’s resignation citing ONDO HOUSING CORPORATION V. SHITTU (1994) 1 NWRL pt. 321 p. 476 it was submitted for the Defendant that the Claimant’s purported resignation could not be held to be valid and the Defendant’s rejection of the same as proper. That by exhibit DA the Claimant agreed to serve the defendant upon completion of his study leave and he also agreed to refund all the expenses incurred on his training including salaries where he fails to honour the bond.

10.7 The Defendant urged the Court to hold that the Claimant is bound by the bond signed with the Defendant and therefore bound to serve the Defendant having completed his study leave. And for the Court to hold that the Defendant is entitled to the alternative reliefs in its counter claim having led credible evidence. That court should hold that the Claimant has not established his entitlement to the reliefs he is claiming as he is in breach of his contract with the Defendant. That his purported resignation is therefore null and void and of no effect and therefore not entitled to be paid his benefits and urged the court to dismiss the claimant’s claim and enter Judgment for the Defendant in its counter claim.

In the argument of the Claimant on the first issue formulated by him for determination; whether the claimant has a valid witness statement on oath in Law in support of its pleadings. On this first issue it was submitted by the Claimant the Law is trite that Civil cases are won and lost on pleadings and on the preponderance of admissible, relevant and credible evidence it was further submitted for the Claimant that by the rules of this court a witness gives evidence through his witness statement on oath attached to his Statement of Fact or Defence as the case maybe. That the Law is settled that a witness statement on oath is sworn deposition and therefore an affidavit reference being made to BUHARI V. INEC (2008) SCNJ 12 (pt1) 1. That the question now is: is the witness statement on oath of the Defendant valid in Law to support his pleadings? The claimant answered in the negative and went on to submit that since the witness statement on oath is an affidavit the Defendant must make a declaration, oath or affidavit at the end of the affidavit as to the truth of the deposition failing which the affidavit is invalid, citing GHRAIZI V. GRAIZI (2017) ALL FWLR (pt 893) 1335at 1360 paras F-H.

11.1 The Claimant pointed out that in the witness statement on oath attached to the statement of defence and counter claim dated the 29^th day of January, 2018 there is a complete absence of any declaration whatsoever which the claimant submits make the affidavit invalid and incurably bad that the fact the affidavit was sworn before a commissioner of oaths does not cure the incompetence of the affidavit. That it is a settled principle of Law that where an affidavit fails to comply with Section 13 of the Oaths Acts, particularly the 1^st schedule to the Oaths Act, the 1^st Schedule to the Oaths Act, the affidavit is incompetent. And applying the above position of Law to this case the claimant submitted that such depositions shall not be admitted which the court had admitted. That the Law is that any inadmissible evidence wrongly admitted shall be expunged at the time of writing the Judgment and urged the court to expunge the said document.

11.2 It was submitted further that if the witness statement on oath of the Defendant witness is expunged there will be no evidence in support of the pleadings, the Law being that parties are bound by their pleadings and that evidence must be led on facts pleaded, except they are admitted by the other party otherwise such facts are deemed abandoned citing GENEVA V. AFRIBANK (2013) 5 SCNJ (part 11) 479 at 521 lines 27 page 522, line 2 and HELP V. SILVER ANCHOR (2006) 2 SCNJ 178 at 186. The Claimant had gone on to submit that applying the Law as stated in these cases to the case at hand that the defendant did not lead evidence in support of it’s statement of Defence. Meaning that the Defendant had abandoned the pleadings and the court was urged to so hold.

Now, with regard to the Second issues formulated for determination whether considering the circumstance of this and the evidence adduced the claimant has proved his case and is entitled to the reliefs claimed and a dismissal of the counter claim. Here, the claimant submitted that the Law is settled that a notice of resignation is effective immediately it is received referring to YESUFU V. GOVERNOR OF EDO STATE (2001) FWLR (pt. 60) 1422.

The Claimant then went on to submit that the Defendant does not have the right to refuse to accept the resignation of the claimant because the claimant is no longer a staff. That this was so because the Law is that there is absolute power to resign and no discretion to refuse to accept notice and reference made to exhibit F and F1 – F11.

12.1 The claimant maintained that parties are in agreement that the claimant a staff of the Defendant by the claimant’s letter of temporary appointment dated 18^th day of March, 2006 and confirmed by the Defendant’s letter of 18^th Match, 2009 in exhibits B, B1 and B2. That they also agree that the claimant applied for and was granted approval for study leave with pay for his doctoral degree is Usmanu Danfodio University, Sokoto and was paid N1.5Million by the Tertiary Education Trust Fund (TETFUND) in exhibitsG10. That they also agree that the Claimant Proceeded to Sokoto and in order to graduate on time with a better degree he applied for and gained admission at Universiti Putra Malaysia and notified the Defendant through exhibits C, C1 – C5 and the Defendant failed and /or neglected to respond to the said letter and contends that it did not approve the change of institution by the claimant and so did not know that the claimant studied in Malaysia the claimant submitted that the Defendant cannot say that it did not know that the claimant went to Malaysia for his PhD in the face of exhibit C1 and notification of change of institution dated 14^th December, 2010. That the defendant admitted receiving exhibit C but failed to reply the claimant. Thus the approval of the change of institution was by conduct ie silence of the Defendant placing reliance on the case of ZENON PETROLEUM & GAS LIMITED V. IDRISIYYA NIGERIA LIMITED (2006) ALL FWLR (pt 312) 2121 at 2140 the claimant pointed out that while he was in Malaysia he was promoted twice by the Defendant. That the Defendant having maintained that it did not know the claimant was in Malaysia and that the claimant abandoned his work and proceeded to Malaysia. And submitted that this position taken by the Defendant confirms that the Defendant did not sponsor the Claimant’s doctoral degree programmed in Malaysia that the Defendant through DW1 had admitted that it did not sponsor the claimant’s doctoral degree programme in Malaysia. That the evidence of DW1 under Cross Examination contradicts paragraph 10 of the further amended statement of Defence and agrees with paragraph 31 of the amended statement of Claim. The Claimant argued that in this circumstance the answer to the question whether the Claimant is bound by the bond in exhibit DA had to be in the negative for the reason that exhibit DA is no longer authentic because of the alteration of the document and reliance placed on DAKOLO V. REWANE – DAKOLO (2011) 6 SCNJ 379 @ 395 lines 31 – 35 here, the Claimant submitted that on the face of exhibit DA there is an alteration which has not been explained and that the court should hold that by the authority of REWANE – DAKOLO the said document (the bond) is no longer authentic and the case of the defendant crumbled.

12.2 The Claimant also submitted that it is true that he was granted study leave with pay and to be sponsored thus meant he would be paid his salary and being sponsored and he was paid his salary until June, 2016 and he was not paid from July, 2016 to April, 2017 when he resigned. That Defendant did not withdraw the study leave with pay it approved for the Claimant which means the study leave with pay subsisted until the Claimant completed his studies and reliance placed on exhibit E – E23.

12.3 The Claimant also submitted that by the Scheme of Service Exhibit H – H7 he had proved that he is entitled to Pension. And by the admission of DW1 under Cross Examination where he was shown exhibit H that the Claimant is entitled to Pension.

12.4 Regarding the Counter Claim of the Defendant. The Claimant as Defendant to the Counter Claim submitted that based on the evidence led in support of the defendant’s Claim the Counter Claim cannot stand. That the Defendant had failed to prove the Counter Claim.

The Defendant in its reply on point of law to issue one formulated by the Claimant, that the Defendant’s witness statement on oath was defective and therefore not valid. Here the Defendant stated at 1.01 of the reply that DW1 adopted his further amended statement of witness under oath when he testified. The defendant also stated that it was not in doubt the witness statement under oath is a sworn deposition as in the affidavit and the requirement of the Evidence Act and the Oath Act must be complied with. That the Evidence Act and Oaths Act had made provisions to the fact that a defect in any sworn deposition shall not affect its validity so long as the Court is satisfied that the Sworn deposition was Sworn to before a person duly authorised. Referring to Section 113 of the Evidence Act (2011) and Section 4 (2) and (3) of the Oaths Act and cited the Case of DASONFUJO V. AJIBOYE (2017) LPELR 42354 where the court had held per Barka JCA that the affidavit having substantially conformed to the requirements of the Oath Act, having been duly Sworn to before a recognised Commissioner for Oath that the trial Court misconceived and wrongly applied the law when it discountenanced the said notice of intention to defend the Defendant.

13.1 The Defendant in reply to the Claimant’s issue two submitted that the claimant’s contention that it (Defendant) had not led evidence in proof of its Counter Claim was erroneous and misconceived that it is the rule of practice that the Examination in Chief of a witness is limited to his adoption of his witness statement under Oath and all agreed documents are tendered from the bar and reference made to Order 40 Rules 1 of the NICN CPR 2017. The defendant stressed that its exhibits DA – DD were all tendered without objection by the Claimant and it followed that the Court had the power to assess and use them, Citing UDOFU V. C.A.C. (1992) NWLR pt. 242 at 445. That it is the law that the court has duty and power to look in to the documents tendered and arrive at its decision referring to EJUETAMI V. MRS OLAIYA & ANOTHER (2002) FWLR pt 88 p. 955 at 981 and MLAAMBE V. SUDE (1994) 2 NWLR pt. 320 p. 326.

COURT’S DECISION

In coming to a decision in this matter resolution of the two issues formulated by the Claimant would be in my view resolve the matter before the court.

In the first issue being whether the Defendant had a valid witness statement on Oath in law, in support of its pleadings. On this issue I have had to look through the Further Amended Statement of witness under Oath of the DW1 Mohammed Ahmad Sworn to at the National Industrial Court Maiduguri this 29^th day of January, 2018 Before the Commissioner for Oath.

14.1 On the 30^th of April, 2018 when DW1 testified, he identified and adopted the said witness statement on oath. Which the Court formally adopted as his evidence. The exhibits DA – DD having been tendered from the bar. The Claimant through Counsel then commenced Cross Examination. And in about 48 question put to DW1 not one of them touched on the invalidity of his witness statement on Oath. And also, in the further Amended Statement of Claim filed on the 5^th of February, 2019 no mention is made of the Defendant’s defective witness statement on Oath. Having earlier in the Judgment laid out the Claimant’s arguments and submission and those of the Defendant from the reply on points of law to the Claimant’s Final Written Address. And having just looked again at the said further Amended Statement of Witness under Oath.

I hold right away that I am satisfied that the deposition was sworn before a Commissioner for Oath i.e. a person duly authorised.

Section 113 of the Evidence Act on affidavit defective in form provides:

“The Court may permit an affidavit to be used, notwithstanding that it is defective in from according to this Act, if the Court is satisfied that it has been sworn before a person duly authorised”

14.2 Here I find that the Statement on Oath was not headed as a witness Statement on Oaths simpliciter by the Defendant but that did not change the substance of the document or convey another meaning as to who’s deposition it was. Even the non-inclusion of the word “Registry” as the bottom of the affidavit I treat as an omission. More so, as stated earlier the Claimant had exhaustively Cross Examined the DW1 based on the averments in the deposition. See the cases of DASONFUNJO V. AJIBOYE (2017) LPELR 4354 and UDUMA V. ARUNSI (2012) 7 NWLR pt. 1298 both cited by the Defendant. In UDUMA V. ARUNSI the Court held that the defect in the form of a written statement once it is sworn to “before a person duly authorised” is a mere irregularity which cannot affect the jurisdiction of the court since it cannot invalidate the proceedings or render the statement in admissible in evidence. On the basis of this issue one as formulated by the Claimant is determined against him.

Regarding the second issue whether the Claimant in the circumstances of this case and the evidence adduced has proved his case and is entitled to the reliefs claimed and a dismissal of the counter claim. In determining this second issue I shall consider the various heads of claim against the backdrop of the submissions and the evidence led for or against each of those heads of claim.

In the 1^st head whether the claimant seeks a declaration that the resignation tendered by the claimant to the Defendant is valid and proper. Here, the Claimant had tendered his resignation letter in exhibit F & F1 dated 7^th March, 2017. The Defendant had rejected the resignation.

15.1 The question now is whether the Defendant can refuse to accept the Claimant’s resignation? In their Final Written Address the Claimant had submitted that the Law is also where an employer shows that an employee has an issue to answer the employer may reject the employee’s resignation citing the case of ONDO HOUSING CORPORATION V. SHITTU (1994) 1 NWLR pt. 321 p. 476. The Claimant on the other hand argued submitting that the law is clear that a notice of resignation is effective immediately it is received referred to the case of YESUFU V. GOVERNOR of EDO STATE (2001) FWLR (pt. 60) 142.

Now the copy of the letter of resignations dated 7^th March, 2017 reads:

“RESIGNATION

I am writing to formally inform you of my resignation as Staff of Ramat Polytechnic Maiduguri.

My last working day will be 7^th April, 2017

The notice of my resignation include the following.

I submitted notification for change of University letter but there was no response for over Six Years.
I submitted a copy of my evidence of graduation and needed financial support to transport myself and family to resume duty but there was no response for over two years.

iii. Recently, I submitted a reminder concerning my situation and I am yet to receive any response.

The Polytechnic declined reviewing my TETFUND study allowance.
Cessation of my salary from July, 2016 to date.

Therefore, after much consideration, my decision to resign was compelled due to the aforementioned reasons. Working for this institution has been a wonderful experience and I feel privileged to have been a part of such a professional team……..”

The letter concludes by stating:

“….included with this letter are copies of the following documents for your perusal and record purposes:

Notification of change of University Letter dated 14^th December, 2010.
Submission of travelling documents dated 20^th December, 2010.

iii. Progress report letter dated 6^th March, 2013

Application for upward review of TETFUND dated 5^th February, 2015.
A reminder

The claimant signed. The Defendant responded in exhibit G3 the internal memo dated 24^th May, 2017 written to the claimant headed:

RE: RESIGNATION

Your letter dated 7^th March, 2017 on the above subject matter refers.

I am directed to write and inform you that the management of the Polytechnic cannot consider your request without fulfilling the terms and conditions of study leave approval, because you are under bond.

You are therefore to serve the polytechnic for two (2) years upon completion of studies.

Thank you….”

The letter was signed by the Defendant’s Deputy Registrar for the Registrar.

15.3. Now exhibit DA the certified true copy of the Bond signed by the claimant reads:

“RAMAT POLYTECHNIC, MAIDUGURI

CENTRAL ADMINISTRATION

(Office of the Registrar)

BOND.

I, Abdullahi Illiyasu of the department of Agric Technology hereby solemnly pledge that I shall serve Ramat Polytechnic Maiduguri for a minimum period of two (2) years (at this part of the Bond there is crossing over the word two and number ‘2’ with the word three written above the word two while the number 2 is altered to read as 3) after the completion of my PhD programme at Usman Dan Fodio University Sokoto.

If I fail to honour this pledge. I will be liable to refund all expenses incurred on my training including salaries in addition to prosecution and other appropriate disciplinary actions that may be taken against me by the Polytechnic…..”

Both parties signed and dated the bond on 03/02/2010.

Now, to answer the question whether the Defendant can refuse to accept the claimant’s letter of Resignation. Here I find that the facts of the case and the evidence before me lend credence to the answer that the Defendant can refuse to accept the claimant’s letter of resignation as it did in the exhibit G3 dated 24^thMay, 2017 where in the Defendant had written the claimant “that the management of the Polytechnic cannot consider your request without fulfilling the terms and conditions of study leave approval because you are under BOND”. The letter then ended by stating: “you are to serve the Polytechnic for two years.

16.1. Having found or answered that the Defendant could in the circumstance of this case refused the claimant’s resignation, the claimant having signed a bond in exhibit DA. I hold that the Defendant was within its right to refuse to consider the claimant’s letter of resignation without the claimant fulfilling his obligations in the bond. Now Judicial pronouncement on this area of the Labour Law are few and far between. However the Defendant in its written address had cited the case of BENSON V. ONITIRI (1966) NSCC 52, FAPPONTE V. UNILLORIN TEACHING HOSPITAL MANAGEMENT BOARD (1991) 4 NWLR pt 183 P43 and ONDO HOUSING CORPORATION V. SHITTU (1994) 1 NWLR pt 321 p47 to state that the law also is that where an employer shows that an employee has an issue to answer the employer may reject the employee’s resignation.

This position of the law has found expression in the Labour Law of India where it is stated: an employee cannot breach the bond when he/she undertakes to work for a specific period see TOSHNIWAL BROTHERS (PVT) LTD V.E. ESWARPRASAD 1997 LLR 500. See H.L KUMAR in his book EMPLOYMENT RIGHTS UNDER LABOUR LAWS 3^RD EDITION UNIVERSAL LAW Publishing Co. put Ltd. Delhi, India at page 129.

16.2. However, inspite of holding that the claimant breached the law as stated above and stated by courts in Nigeria and India, this should be seen as exception to the general rule that at common law a worker has an absolute right to resign. It is this right that Lord Atkin identified as the difference between a servant and a slave see NOKES V. DONCASTER AMALGAMATED COLLIERIES LTD (1940) A.C 1014. In BENSON V. ONITIRI the Supreme Court affirmed that a person has an absolute right to resign and no discretion exists in the other party to refuse to accept the resignation.

Now, this is the position of the law even though the acknowledged exception exists. On this basis even though I had held earlier that the Defendant was within its right to refuse the claimant’s resignation, I hold further here, that it did not stop the claimant’s resignation from being proper under the law. Rather under the same law, the Defendant’s action of not accepting the resignation is in itself the main basis on which it’s counter claim is founded arising out of the bond the claimant signed and the provisions of section 18(E) & (F) of exhibit H, the Defendant’s scheme of service Rules and regulations governing staff conditions of service. Where it is provided that; final approval of study leave is conditional upon the signing by the member of staff concerned a bond to serve the Polytechnic for a period equivalent to the period of study to be granted.

And that a member of staff who at the end of the conditions laid down by the council may be liable to refund the amount spent on him/her by the polytechnic for the period of the study leave and shall be liable to any other disciplinary action as may be deemed fit by the council or relevant committee.

3.So, having upheld the law that the claimant has an absolute right to resign it is hereby declared that the claimant’s resignation is proper and valid.

And having so declared in the first head of claim that the claimant’s right to resign is absolute, the objection of the Defendant notwithstanding, it is ordered further as prayed that the Defendant accept the said resignation in the circumstances of this case.

As to the third head of claim where the claimant seeks a declaration that the Defendant, having not sponsored the claimant’s PhD programme at Universiti Putra Malaysia, cannot compel the claimant to serve the Defendant for two years or any period of time. On this head of claim. I find that though the TETFUND is an organisation separate from the Defendant and it is an established fact agreed by both parties that Tetfund sponsored the claimant to Malaysia for his PhD programme. It is however a fact that the Defendant was and remained the claimant’s employer at that time and during the 5 years period of study the claimant undertook in Malaysia from September 2009 to September 2014 when he returned to Nigeria. During this period the Defendant was being paid his salary by the Defendant. And it is the Defendant that granted the claimant as his employer study leave in the first place to go to Usman Dan Fodio University for his PhD programme. It was therefore under the auspices of the Defendant that the claimant was sponsored by TETFUND, if the claimant were not a staff of the Defendant at the material time, and without the Defendant’s auspices, it is quite unlikely that TETFUND could have sponsored him. However regarding this third head of claim. Having held that the claimant’s right to resign is absolute it would be unconscionable to force him to remain in the service of the Defendant, I so hold. Consequently it is declared that the Defendant cannot compel the claimant to remain in its service for two years or any period of time.
Now, regarding the fourth head of claim that the Defendant process the claimant’s gratuity due to him. Now the claimant at paragraph 35 of the further amended statement of claim (facts) pleaded that: “he served the Defendant for more than 10 years and is by virtue of the Defendant’s scheme of service and regulations governing staff conditions of service, entitled to gratuity and pension upon resignation.

The defendants scheme of service rules and regulations governing staff conditions of service is hereby pleaded and the defendant given notice to produce same at the trial of the suit”.

18.1. The claimant had pleaded the same averment in the earlier statement of facts filed on the 4^th August 2017 when the action first commenced. And also in the amended statement of claim filed on 18^th January 2018. To this the Defendant had pleaded at paragraph 12 that in response to paragraphs 35, 36 and 37 of the amended statement, states that the Defendant’s scheme of service does not grant entitlements of pension and gratuities to a staff who is bonded over to the Defendant until he serves his bond, and any such staff who is bonded over to the Defendant must meet the terms of his bond before disengagement from the defendant will be considered and honoured. The claimant remains a staff of the Defendant and bonded over by the bond he signed, and cannot resile therefore by purporting to resign.

18.2. Now the claimant in this final written address had placed reliance on exhibit H the Defendant’s scheme of service that the claimant is entitled to pension while referring to the admission of DWI under cross examination that the claimant is entitled to same if he resigns and reference made to page 31 of the exhibit H.

18.3. I have just read through the said portions of exhibit H at pages 28 to 31 thereof and the provisions are there reserved for entitlement to pension and gratuity. And even though the Defendant has contended that the claimant is not entitled having not fulfilled his bond. I have also held earlier, it is worth stating again that the right of the claimant to resign is absolute and so the benefit/entitlements attendant upon resignation such pension and gratuity must be allowed to flow to him. Consequently the claims in fourth head of claim for the Defendant to process the claimant’s gratuity succeeds and it is so ordered. So also is the claim for payment of the claimants pension when due which also succeeds and is so ordered in the 7^th head of claim. Remaining now are the claims for salary arrears of N382,398.90 (Three Hundred and Eighty Two Thousand, Three Hundred and Ninety Eight Naira, Ninety kobo) unpaid from January 2016 to June 2016 being the difference for the said months with respect to his last promotion which took effect from first January 2016 this in the 5^th head of claim. And in the 6^th head of claim for an order of the court directing the Defendant to pay to the claimant’s unpaid salary from July 2016 to April 2017 in the sum of N1,913.043.31k (One Million, Nine Hundred and Thirteen Thousand and Forty Five Naira, Thirty One kobo).

19.1. Now, the pleading of the claimant on the above two heads of claim is very sparse to say the least. At paragraph 25 of the statement of claim (fact) same as 29 of the witness statement on oath he averred that:”…the defendant owes the claimant the difference for the months of January 2016 to June 2016 as arrears of salary with respect to his last promotion which took effect from

1^st January 2016 being the balance for the said months reflecting his new position as senior lecturer.”

Earlier at paragraph 22 of the statement of facts (claim) it was also averred “that between July 2016 and April 2017 while still in Malaysia the Defendant did not pay the claimant salary for the said period and when the claimant inquired from his colleagues he was informed that his salary was stopped by the Borno State Government because of the verification exercise carried out by the Government. The statement of account of the claimant with Access Bank showing the last salary he received is hereby pleaded and the claimant shall rely on same at the trial”.

19.2. The Defendant response earlier to these averments at paragraphs 5 (vi and 5(vii) of the amended statement of Defence that: (vi) “the claimant having absconded and proceeded to Malaysia without the approval of the Defendant, and having failed to honour his obligations to the defendant under his terms of service and the bond he signed, and having also abandoned his programme in Sokoto, is not entitled to salaries or allowances payable to him as he was specifically approved for in-service PhD programme at Usman Dan Fodio University Sokoto not Malaysia”.

“(vii) The defendant is not owing the claimant any arrears of salaries for the year 2016 or any other period, as the claimant abandoned his duty post and study, and proceeded to Malaysia without the approval of the defendant thereby breaching the terms of employment and bond with the defendant”.

19.3 The claimant filed no reply to the statement of Defence but did reply denying the counter claim of the defendant as counter claimant and went on to file the further averred statement of claim (facts) and further amended statement on oath after written addresses had been filed. Now in all of these I had stated earlier that the claimant’s pleadings affecting the 5^th and 6^th head of claim were sparse and bare stripped of necessary details and the Defendant only responded in the denials equally shown above. Now the law is that claims for salaries, allowances, bonuses, emoluments etc are in the nature of special damages. Like in all claims for special damages they have to be pleaded with particulars and evidence led thereon before they would be granted. See the case of ADEKUNLE V. UBA (2016) LPELR-41124(CA) see also the Supreme Court the case of I.H.A.B.U.H.M.B. V. ANYIP (2011) 12 NWLR (pt 1260) P.I at pp 20-21. It is clear from the evidence before me that the claimant has not pleaded what his monthly salary is and what the difference of the new salary amounts to and how he arrived at the figures comprised in the two heads of claim over the months claimed for. On the bases of this reasons I hold that the claims in the 5^th and 6^th heads of claim fail and are consequently dismissed. So also is the claim for cost of the suit at the claimants instance in the 8^th head of claim.

Now the Defendant counter claimed against the claimant (Defendant to counter claim). The Defendant had denied that the counter claimant was not entitled to the counter claim and had submitted in his final written address that the counter claimant is not entitled to all the reliefs contained in the counter claim. So in deciding whether counter claim succeeds or not. It is worth noting that I had found earlier that the Defendant counter claimant was within its rights to insist on the Defendant to counter claim performing the terms of the bond which the claimant as Defendant to counter claim had failed to perform. I had laid out the contents of the bond in exhibit DA and the relevant portions of exhibit H the scheme of service and regulations which I hold are binding on the claimant/defendant to counter claim. Now his counsel had argued in the written address that the bond was mutilated or altered. I noted the altered portion with regard to the change of the word two years to read three years that the alteration had made the document unreliable and the document was no longer authentic and the case of the Defendant crumbles. I hold that is not the case here. As from pleadings issues were not joined on the alteration on the face of exhibit DA but rather that there was a bond entered into by both parties for the claimant to serve the Defendant for two years after the completion of his PhD. Which fact is not denied by any that the claimant Defendant to counter claim has refused to do or honour. In his cross examination the claimant was asked:

Q: When you finished your study leave did you resume?

Ans: No.

Q: How many years did it take you to finish your PhD?

Ans: 5 years.

Q: When did you finish?

Ans: 2014, September.

Q: When did you commence your study leave?

Ans: 2009

It is clear from the answer given by the claimant in his cross examination by the counter claimant, he did not resume to work as at September 2014. Yet his salary continued to run until June 2016 which he admitted under cross examination. He was asked further under cross examination:

Q: When did you resign?

Ans: March 2017

Q: Under your scholarship, you were to serve the Polytechnic by the bond you signed after your study leave?

Ans: Yes

Q: You agreed to refund all expenses incurred on your training?

Ans: Yes. The cross examination ended and the claimant was not re-examined and closed his case. From the above answers it is abundantly clear that the claimant knew he was under a bond to serve the Defendant for only two years and the consequences for failing to do so were spelt out to him both in the bond which he signed and in exhibit H. The scheme of service and governing regulations. I hold that in the premises of these evidences before me the counter claim succeeds. Accordingly, it is declared that the claimant is in breach of the terms of the conditions of service he entered with the Defendant and since he has resigned he is ordered to refund to the defendant, the sum of N1,500,000 paid for his study at Usman Dan Fodio University Sokoto.

In the Indian case of POST GRADUATE 1.O.M EDUCATION AND RESEARCH V.J.S. GUPTA (1984 L&IC 159) an Associate Professor of Ophthalmology in a Post Graduate Institute of Medical Education and Research, failed to adhere to the conditions imposed for sanction of leave to go abroad. The learned judge was of the view that the sum specified in the bond executed constituted genuine pre-estimate of damages and that it was recoverable for breach of the covenant. See Kumar (Supra)

By section 15 of the National Industrial Court Act (NICA 2006) It is provides:

“subject to the express provision of any other enactment, and in all matters not particularly mentioned in this Act in which there was formerly or there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail in the court so far as the matters to which those rules relate are recognizable by the court”.

We are reminded once more by the maxims of equity that he who comes to equity must come with clean hands. And also that; he who seeks equity must do equity, in this case, I find and hold that the claimant as Defendant to the counter claim fell short of the expectations espoused out of these maxims of equity.

Finally, in the premises of the above reasoning’s the claimant is ordered to pay to the Defendant by way of refunded to the counter claimant salaries from the October 2014 to June 2016 when the counter claimant stopped paying his salary.

Judgment is entered accordingly. Parties to bear their own costs.

______________________

HON. JUSTICE E. D. E. ISELE

JUDGE