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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

Date: 12th April 2021                                             SUIT NO. NICN/LA/599/2018

 

BETWEEN

 

OVERLAND AIRWAYS LIMITED                         …         CLAIMANT

 

AND

 

1.ENGR. SHEHU SEKULA                                                

2.THE INSPECTOR GENERAL OF POLICE

3.THE COMMISSIONER OF POLICE, AIR WING …   DEFENDANTS

 

JUDGMENT

 

1.         By its originating process filed on 29th November 2018, Claimant claimed against the Defendants as follows:

 

a.      A declaration that the 1st Defendant can only validly terminate the employment contract with the Claimant by giving the Claimant three months' notice or three months' salary in lieu of notice and that the 1st Defendant breached the employment contract when he failed to give the Claimant the requisite three months' notice or three months' salary in lieu of notice.

 

b.      A declaration that the 1st Defendant breached the training bond agreement dated the 29th June 2015 between the Claimant and the 1st Defendant.

 

c.      A declaration that the 2nd and 3rd Defendants wrongfully induced the 1st Defendant to breach his employment agreement and Training Bond Agreement by failing to carry out the necessary due diligence before employing the 1st Defendant and encouraged the 1st Defendant to breach the said agreement which practice constitutes an unfair labour practice.

 

d.      An order of Court directing the 1st Defendant to pay the Defendant [sic, Claimant] the sum of N523, 409.76 [five hundred and twenty-three thousand, four hundred and nine naira, one seventy-six kobo] being the 1st Defendant's three months' salary in lieu of notice [less entitlements) as agreed under the 1st Defendant's contract of employment with the Claimant.

 

e.      An order of this Honourable Court compelling the 1st, 2nd and 3rd Defendants jointly and severally to pay to the Claimant the sum of N2, 000, 000.00 [two million naira only] being the cost and expenses incurred by the Claimant for the training of the 1st Defendant under the Bond Agreements.

 

f.        An order directing both the 2nd and 3rd Defendants to pay the sum of N5, 000,000 [five million naira] as general and exemplary damages to the Claimant for inducing the 1st Defendant to breach his contract of employment with the Claimant.

 

g.      Interest on the above sum at the rate of 21% per annum from the date of judgment in this suit until liquidation of the judgment debt.

 

h.      The costs of this action.

 

2.         The Defendants were served with the originating process on 3rd December 2018, and entered conditional appearance and filed their joint statement of defence and accompanying processes on 15th May 2019 together with a motion on notice to regularise the defence processes and notice of preliminary objection. The defence processes were deemed properly filed and served on 11th March 2020. The Defendants’ notice of preliminary objection was argued on 3rd June 2020 and dismissed in a considered ruling delivered on 22nd June 2020. Claimant filed its reply to the statement of defence on 24th June 2020. Trial commenced and was concluded on 13th July 2020, and the case was adjourned for adoption of final written addresses. Parties adopted their final written addresses on 13th January 2021 and the case was set down for judgment.

 

3.         The 1st Defendant was employed by the Claimant as trainee aircraft engineer by letter dated 23rd September 2014. By contract of the parties, Claimant undertook to sponsor the 1st Defendant for aircraft type rating course and any other training necessary for the performance of his job in consideration of the 1st Defendant remaining in its employment for a minimum period of 60 months. In furtherance of this agreement, the 1st Defendant executed a training programme bond agreement dated 29th June 2015 wherein he bound himself to the Claimant for payment of the sum of N2, 000,000 and any other additional costs incurred by the Claimant for sponsoring his training programme for the B1900 and PT6A type rating course. The 1st Defendant attended and completed the B1900 and PT6A type rating course conducted by AME Training Academy between 1st – 14th July 2015. By letter dated 3rd May 2016, the 1st Defendant resigned his employment before expiration of the bond, and failed to give the required 3 months’ notice of termination of his employment or three months’ salary in lieu of notice. Subsequent to his resignation, the Claimant became aware that the Air Wing Division of the 2nd and 3rd Defendants employed him, and by letters dated 29th September 2016 and 13th January 2017, Claimant notified them of the 1st Defendant’s subsisting contractual obligations. In spite of the notice, the 2nd and 3rd Defendants retained the 1st Defendant in their employment and failed to ensure that he discharged his contractual obligation to the Claimant. By reason of which, the Claimant initiated this suit seeking the reliefs set out above. Defendants admitted that the 1st Defendant’s qualification was inadequate for him to perform his duties as aircraft engineer, but averred that the 1st Defendant had been trained at Nigerian College of Aviation [Avionics] Engineer before his employment by the Claimant, and the training which the Claimant gave was its statutory obligation for efficient operation of its airline, and not relevant to 1st Defendant’s field of study as an Avionics Engineer. The Defendants further state that prior to 1st Defendant’s employment by the Claimant, he had written the Police aptitude test and that he was induced to sign the bond and did not understand its stipulations.

             

            Issues for determination

 

4.         Defendants formulated two issues for determination in their final written address dated 28th August 2020, to wit:

 

a.      Whether from the evidence adduced and Exhibit tendered, by the Claimant, it would not be correct to say that the Claimant exercise[d] undue influence on the 1st Defendant to have signed the training bond and other documents in the term of contract?

 

b.      Whether the 2nd and 3rd Defendants ought to have been sued in their capacity as employee[s] of the Nigeria Police Force?

 

The Defendants argued issue one on two grounds. One, they contend that the 1st Defendant was coerced to sign the training bond and did not have opportunity to consult his counsel, noting that from the evidence, he was pulled out of the lecture hall to execute the bond with a threat of losing his employment if he did not sign it. Secondly, they argue that the training the 1st Defendant received was not suitable for his career as he was trained on Airframe instead of Avionics. They submit that while parties are bound by the terms of contract they freely entered into, in the instant case, the 1st Defendant did not have ample time to read the bond which contained liability clauses, and was not availed a copy of the bond until several months later thus, denying him the opportunity to choose whether to go on with the contract or resile from it. Relying on Aminu Ishola Investment Ltd. v. Afribank Nigeria Plc [2013] 54 NSCQR [Pt.2] 747-748, they submit that the contract does not meet the requirements of a valid contract. The Court was urged to hold that the Claimant exercised undue influence on the 1st Defendant to execute the training bond and other documents.

 

On issue two, Defendants submit that the 2nd and 3rd Defendants are not proper parties to the suit being employees of the Nigeria Police Force and Police Service Commission pursuant to Section 214[1] of the 1999 Constitution, as amended, and paragraph 30[a] and [b] of part 1 of the third schedule to the Constitution. They contend that the 1st Defendant being a senior Police officer was appointed by the Police Service Commission which ought to have been sued instead of the 2nd and 3rd Defendants. Lastly, they submit that from the evidence of the 1st Defendant, he was not induced by the 2nd and 3rd Defendants to resign his employment with the Claimant. The Court was urged to hold that this suit is incompetent for non-joinder of proper parties.

 

5.         In response, Claimant submitted three issues for determination, viz:

 

a.      Whether the 1st Defendant did not breach the terms of his Employment Contract, Exhibit 1, by failing to give the Claimant three [3] months’ notice in writing or payment of three [3] months’ salary in lieu of notice?

 

b.      Having regard to the evidence before this Honourable Court, whether the terms of the Training Bond Agreement, Exhibit 2, are not binding and enforceable against the 1st Defendant as sought by the Claimant in this suit?

 

c.      Whether the Claimant is not entitled to its claims against the 2nd and 3rd Defendants?

 

Before arguing the issues, the Claimant responded to the preliminary issue of law raised by the Defendants in their issue two to the effect that the 2nd and 3rd Defendants are not proper parties to this suit and the non-joinder of necessary parties renders the suit incompetent. Claimant submits that the pleadings provide the basis for the exercise of the Court’s jurisdiction and resolution of the issues in dispute between the parties. It contends that on the basis of the facts before the Court and the law, the 2nd and 3rd Defendants are proper parties to this suit, noting that the 1st Defendant is an employee of the Nigeria Police Force established under Section 214 of the Constitution, and the 2nd Defendant is sued in his capacity as the head of the Nigeria Police Force which employs the 1st Defendant pursuant to Section 215[2] of the Constitution, whilst the 3rd Defendant is sued in his capacity as the administrative head of the Air Wing Command of the Nigeria Police Force. Reference was made to paragraphs 2, 3, 4, 30, 31, 32 and 35 of the statement of facts and paragraph 1 of Defendants’ witness statement on oath. It argued that the question whether the 2nd Defendant is a proper party in any suit where the complaint is against the Nigeria Police Force has been settled in several decisions of the appellate Courts including Oladeji v. IGP & Anor. [2018] LPELR-45141[CA] and Nwanna v. A G Federation & Anor. [2010] LPELR-9047[CA]. The Court was urged to discountenance the Defendants’ submission and hold that the 2nd and 3rd Defendants are proper parties to this suit, the Nigeria Police Force being duly represented by the 2nd and 3rd Defendants.

 

It also argued that assuming without conceding that the 2nd and 3rd Defendants are not necessary parties to this suit, the law is well settled that a misjoinder or non-joinder of parties will not defeat any action before the Court. Reliance was placed on Order 13 Rule 14[1] of the Rules of this Court and the cases of Green v. Green [1987] LPELR-1338 [SC] 28-29 and Bello v. INEC & Ors. [2010] LPELR-767[SC] 77-78. It submits that in the highly unlikely event that this Court is minded to hold that the 2nd and 3rd Defendants are not proper parties to this suit, the reliefs sought in this suit can still be determined as between the Claimant and the 1st Defendant with the exceptions of reliefs [c] and [f] in the statement of facts. The Court was urged to discountenance the Defendants’ submissions on their issue two.

 

6.         Claimant submits, on issue one, that parties agree in their pleadings that the 1st Defendant did not give the required notice of termination of his employment or pay the salary in lieu of notice. It states that Exhibit 1 embodies the agreement of the parties and confers the 1st Defendant right to terminate his employment by giving 3 months’ notice in writing or paying 3 months’ salary in lieu of notice. Claimant notes that Defendants admitted paragraph 22 of its statement of facts in paragraphs 16 and 20 of their statement of defence, and submits that the law is well settled that facts admitted need no further proof and the Court can act on those facts as proved without evaluating the evidence in relation to the fact. Reliance was placed on Section 123 of the Evidence Act, 2011 and the case of Barau & Ors. v. Consolidated Tin Mines Ltd & Ors. [2019] LPELR-46806 [CA]. It submits that ordinarily the burden of proof in relation to this fact has been duly discharged, but because it seeks a declaratory relief, it has gone further to adduce cogent and credible evidence to prove the breach of Exhibit 1 by the 1st Defendant and referred to paragraph 24 of its witness’ statement on oath and Exhibit 5, the letter of resignation; and submits further that this evidence is unchallenged and the Court is  bound to accept it as establishing the relevant fact pleaded in the statement of facts on the authority of Kopek Construction Ltd v. Ekisola [2010] LPELR-1703[SC] 66-67.

 

Relying on Onyeukwu v. First Bank of Nigeria Plc [2015] LPELR-24672[CA]11-12, Claimant also submits that parties are bound by the terms of their agreement, and having established that the 1st Defendant resigned in breach of Exhibit 1, it is entitled to payment of three months’ salary in lieu of notice. The case of Angel Spinning & Dyeing Ltd v. Ajah [2000] LPELR-10724 [CA] 6 amongst others was cited to buttress this point. Claimant further submits that there is no dispute that the 1st Defendant’s monthly salary was N244, 585.63 in April 2016 and when multiplied by three months will amount to N734, 056.89 less 1st Defendant’s entitlement at the time of his resignation in the sum of N260, 371 and referred to paragraphs 24 and 25 of the statement of facts, paragraph 19 of the statement of defence and Exhibit 6. The Court was urged to accept this fact as established and hold that it has established by credible evidence that the 1st Defendant did not resign in accordance with the terms of Exhibit 1 which is binding on him and as a result it is entitled to the grant of reliefs [a] and [d].

 

7.         On issue two, Claimant submits that the right of an employer to require an employee to execute a training bond is now well ingrained in our employment and labour jurisprudence, and founded on the sacred principle of freedom of parties to contract as well as the right of an employer to expect to receive some benefits from its investment in an employee. It contends that it is a fair and equitable labour practice for an employer which has invested in the training of its employees to take steps to ensure that it benefits from the training provided to the employees. Reliance was placed on the cases of Emuwa v. Consolidated Discounts Ltd. [2000] LPELR-6871[CA], Suit No. NICN/LA/464/2014, Allied Air Limited v. Kwabena Sarfo Ossei which judgment was delivered on 6th April 2017 and Suit No. NICN/LA/19/2011, Overland Airways Limited v. Afolayan & Anor., which judgment was delivered on 2nd May 2014. It submits that the training bond agreement, Exhibit 2, possesses the essential elements of a valid contract such as offer, acceptance, consideration, intention to create legal relation and capacity of parties to contract and thus enforceable against the 1st Defendant on the authority of Petroleum Training Institute v. Brown Uwamu [2001] FWLR [Pt.70] 1567 at 1578, Obaike v. B.C.C. Plc [1997] 10 NWLR [Pt. 525] 435 and others.  Reference was also made to paragraphs 9, 10, 16, 19, 20 and 21 of the statement of facts, Exhibits 3 and 4. It contends that the 1st Defendant accepted the offer but failed to honour the terms of the agreement he freely entered into, and the duty of the Court is to enforce the agreement of the parties and not to make a new one for them. It cited a number of authorities including Babatunde & Anor. v. Bank of the North Ltd & Ors. [2011] LPELR - 8249 [SC]. It urged the Court to enforce the terms of Exhibit 2 which are clear and unambiguous.

 

Continuing, Claimant explained that the 1st Defendant’s sole contention is that he signed Exhibit 2 under duress and was not afforded the time to read the terms and conditions therein, but submits that the evidence before the Court show that this contention is false, baseless and amounts to a malicious afterthought and referred to Exhibits 1 and 14 and paragraph 7 of its witness’ additional statement on oath, which evidence is unchallenged. It further states that the 1st Defendant admitted in cross-examination that he executed Exhibit 1 voluntarily which made copious references to the training bond, and thus, was aware of its training bond policy at employment. Further, it states that Exhibit 2 was executed by the 1st Defendant in the presence of a witness procured him. Claimant further submits that, contrary to 1st Defendant’s claim, Exhibit 2 was executed prior to the commencement of the training and relied on Exhibits 3 and 4; adding that there is a presumption that a person of sound mind understands the nature and content of any document which he signs. It maintains that the evidence before the Court confirms that Exhibit 2 was signed by the 1st Defendant in the presence of a witness procured by him and he took benefit of the training specified in Exhibit 2, and being a person of sound mind, he cannot be allowed to deny knowledge of the content of Exhibit 2 on the basis of unsubstantiated averments in the joint statement of defence. Reliance was placed on Afribank v. Alade [2000] LPELR-10722[CA]. Claimant contends that the 1st Defendant breached Exhibit 2 when he resigned before expiration of 60 months and refused to refund the agreed cost of training; and having breached the terms of the agreement, it is entitled to damages as well as refund of costs incurred in training him. Claimant relied on the case of Ogundalu v. Macjob [2015] LPELR-24458 [SC] 46 and urged the Court to discountenance the Defendants’ submissions on their issue one and resolve this issue in its favour.

 

8.         Relying on the cases of Sparkling Breweries Ltd & Ors. v. Union Bank of Nigeria Ltd [2001] 15 NWLR [Pt. 737] 539 at 560-561 and Nissan Nigeria Ltd v. Yoganathan [2010] 4 NWLR [Pt. 1183] 135 at 152-154, Claimant submits that the tort of inducing a breach of contract is committed where a third party’s unlawful act makes it impossible for contracting parties to perform their obligations under a contract. It is a deliberate, direct and unlawful interference with the performance of a contract by a third party to the detriment of one of the parties to the contract. It further submits that where a third party has knowledge of the terms of a contract and does any act which induces a breach of the contract by one of the contracting parties, it is an unlawful interference with the contract. Flowing from this, it contends that any act by 2nd and 3rd Defendants which encourages the breach of Exhibits 1 and 2 by the 1st Defendant is an unlawful interference with it’s contract with the Claimant. Claimant also submits that where a third party continues to employ a person after becoming aware of the terms of his prior and subsisting contract, it is liable for inducing a breach of contract noting that, in this case, there is evidence that the 2nd and 3rd Defendants were notified of the 1st Defendant’s subsisting obligations to it. Reference was made to paragraphs 30 to 36 of the statement of facts and Exhibits 8 and 9. It submits that there is nothing in the evidence adduced by the Defendants challenging this evidence and on the authority of Nissan Nigeria Ltd v. Yoganathan [supra], further submits that it has established the relevant elements required to succeed against the 2nd and 3rd Defendants for inducement of breach of contract, and the natural consequences of inducement of breach of contract is damages in favour of the injured party. The Court was urged to resolve issue 3 in its favour and grant the reliefs sought against the Defendants in this case.

 

            The reply on point of law dated 12th January 2021 is merely a re-argument of the Defendants’ case.

 

9.         Looking at the issues for determination formulated by the parties, it is plain to me that the central questions which this Court is called upon to resolve are whether the contract of employment and training bond are enforceable against the 1st Defendant, thus rendering him liable to the Claimant as claimed; and whether the 2nd and 3rd Defendants are proper parties to this suit and induced the 1st Defendant to breach his employment contract with the Claimant. These questions can be subsumed into one issue for determination, which is:

 

Whether the Claimant is entitled to judgment as claimed?

 

Resolution of the issue for determination

 

10.       The Claimant seeks eight reliefs in this action, three declarations, three orders and two consequential reliefs, which have been reproduced earlier in this judgment. In proof of its claims, the Claimant called one witness and tendered 15 exhibits, marked Exhibits 1 to 15. These are the employment contract, training bond agreement, certificate of completion of Beech 1900 course dated 14th July 2015, certificate of completion of Pratt & Whitney PT6A course dated 8th July 2015, letter of resignation dated 3rd May 2016, Claimant’s letter dated 16th May 2016 setting out 1st Defendant’s terminal liability, Claimant’s letters dated 29th September 2016 to 1st, 2nd and 3rd Defendants, Claimant’s letter to 2nd and 3rd Defendants dated 13th January 2017, 1st Defendant’s letter dated 26th September 2016 and Claimant’s response dated 13th October 2016, 1st Defendant’s Solicitor’s letter dated 5th December 2016 and Claimant’s reply dated 13th December 2016, pre-employment evaluation forms and 1st Defendant’s Aircraft Maintenance Engineer’s Licence No. 3411.

 

A summary of Claimant’s evidence is that it is engaged in business of aviation services and airline operator. By letter dated 23rd September 2014, the 1st Defendant was employed as a Trainee Aircraft Engineer [Avionics], and because his qualification was inadequate for him to discharge his duties as an aircraft engineer, it was agreed that the Claimant would, at its cost, sponsor him for aircraft type rating course and any other required trainings in consideration of his remaining in Claimant's employment for a minimum period of 60 months. In furtherance of this agreement, the 1st Defendant executed a Training Programme Bond Agreement dated 29th June 2015, which obligates him to remain in Claimant’s employment for a minimum period of 60 months or refund the cost of his training in the sum of N2, 000,000. In fulfilment of its obligation under the bond, the Claimant caused the 1st Defendant to undertake the B1900 and PT6A Type Rating Course conducted by AME Training Academy between 1st to 14th July 2015, which is the legal additional aircraft type rating qualification recognised by the Nigerian Civil Aviation Authority and which conferred on the 1st Defendant the knowledge, professional and technical skills as well as the authority to practice as an Aircraft engineer and Avionics engineer; and benefits derived from the training inure for a lifetime. By an electronic mail dated 3rd May 2016, the 1st Defendant resigned his employment with the Claimant without giving the requisite three months’ notice or three months’ salary in lieu of notice and refunding the cost of his training as stipulated in the bond. By letter dated 16th May 2016, the Claimant informed him of his exit obligations and indebtedness in the sum of N2, 523,409.76. Upon becoming aware that the 1st Defendant works with the Nigeria Police Force, Air Wing Division, by letters dated 29th September 2016, the Claimant served the 1st Defendant a final reminder and informed the 2nd and 3rd Defendants of the 1st Defendant’s subsisting obligations to it. This was followed with a reminder dated 13th January 2017. In spite of these letters, the 2nd and 3rd Defendants retained the 1st Defendant in the employment of Nigeria Police Force without ensuring fulfilment of his contractual obligations to the Claimant. Under Cross-examination, the Claimant’s witness stated that the 1st Defendant was given the training bond agreement and he read it repeatedly before signing it voluntarily ahead of agreed training and he signed it without question because he was expecting it and the content was not strange to him.

 

11.       The Defendants called one witness, the 1st Defendant, and tendered three exhibits, marked Exhibits D1 to D3. These are offer of employment, 1st Defendant’s Solicitors’ letter dated 5th December 2016 and email correspondence between one Lusion Abraham and Ame Training Academy.

 

In his evidence, the 1st Defendant stated that he is a Police officer attached to the Airwing Department of the Nigeria Police Force, and resigned from the service of the Claimant to join the 2nd and 3rd Defendants and having worked with the Claimant from 23rd September 2014 to 3rd May 2016. Prior to that time, he had applied to the Nigeria Police Force in March 2014 for the position of Aircraft Engineer and had written the Police aptitude test. On 19th December 2015, one of his colleagues wrote to Ameta South Africa requesting for the cost of their training and Ameta responded. He testified that the Claimant is in the habit of withholding employees’ salaries, and withheld his salary for April 2016 without reason, and has no job security. He explained that he was pulled out of class and compelled to sign the training bond which he did not have time to read or consult his counsel before signing. Further that the B1900 and PT6D [sic] type rating course for which the bond was secured is of no professional value to him as an Avionics engineer. Under cross-examination, he admitted that he is educated and was not induced to sign his letter of employment; and confirmed that by the provisions of the agreement, he had a right to terminate his employment by giving three months’ notice. He maintained that he was pulled out of class to sign the training bond. The witness confirmed paragraph 5[b] of his statement on oath, but was not sure when he wrote the Police aptitude test, and could not say if it was before he joined the Claimant. Also, he could not recall when he was employed by the Nigeria Police Force, but admitted that he resigned on 3rd May 2016 without giving the requisite 3 months’ notice, but explained that his lawyer counterclaimed against the Claimant. He confirmed that by Exhibit 2 paragraph 5 if he left Claimant’s employment before 60 months, he would pay N2, 000,000.

 

12.       It is now elementary law which requires no citation of authority that he who asserts must prove. See Sections 131[1] and 132 of the Evidence Act, 2011.  The burden of proof in civil cases is on the Claimant who initiated the suit and who must satisfy the Court by relevant and credible evidence that he is entitled to judgment on his claims in view of the circumstances of the case. See Abayomi v. Saap-Tech Nigeria Limited [2020] 1 NWLR [Pt. 1706] 453 at 492 and Zenon Petroleum & Gas Limited v. Emsee Shipping Line Limited [2021] 1 NWLR [Pt. 1758] 553 at 562.

 

Where a Claimant, as in this case, seeks declaratory reliefs, he has the onerous burden to prove his entitlement to those reliefs. See Ilori & Ors. v. Ishola & Anor. [2018] 15 NWLR [Pt. 1641] 77 at 94. Evidence which will support a legal right must be credible, cogent and convincing.  See Ibrahim v. Garki & Anor. [2017] 9 NWLR [Pt. 1571] 377 at 390. A credible evidence is evidence worthy of belief and for evidence to be worthy of belief it must be natural, reasonable and probable in the peculiar circumstances of the case. See In-Time Connection Limited v. Ichie [2009] LPELR-8772[CA] 16. The Claimant must succeed on the strength of his case and not on the weakness of the defence. See Ilori & Ors. v. Ishola & Anor. [supra]. However, the standard of proof remains the same, that is, proof on a balance of probabilities. The Claimant is only required to show that the law and facts of his case support his claims and cannot rely on the mere admission of the Defendant or absence of defence. See Ojo v. ABT Associates Incorporated & Anor. [2014] LPELR-22860[CA] 25. This is so because a claim for declaration calls for exercise of the Court’s discretion in favour of the Claimant, and he must place sufficient materials before the Court to enable it exercise the discretion in his favour. See Adama & Ors. v. Kogi State House of Assembly & Ors. [2019] 16 NWLR [Pt. 1699] 501 at 531.

 

            In an employment dispute, it is the applicable conditions of service and any other stipulation incorporated or deemed to have been incorporated into it that the Court will refer to and apply in resolving the dispute. See Gbedu & Ors. v. Itie & Ors. [2020] 3 NWLR [Pt. 1710] 104 at 126, Adekunle v. United Bank for Africa Plc [2019] 17 ACELR 87 at 108 and Jowan & Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 24. Where there are many documents incorporating the terms and conditions of employment, the Court will not look outside those terms in deciding the rights and obligations of the parties thereto. See Jowan & Ors. v. Delta Steel Company Ltd.[supra] at page 25.

 

13.       The Claimant’s case against the 1st Defendant is for breach of his contract of employment and the training bond; and against the 2nd and 3rd Defendants for inducement of breach of contract. The Defendants admit that the 1st Defendant was required to give three months’ notice of termination of his employment or pay three months’ salary in lieu of notice; and that he did not give the required notice. However, they contend that the payment in lieu of notice is the 1st Defendant’s basic salary and not his gross monthly salary as claimed by the Claimant and rely on Exhibit D2 [Exhibit 12], which is the 1st Defendant’s Solicitors’ letter to the Claimant dated 5th December 2016. See paragraphs 7, 22, 23, 24, 25 and 26 of the statement of facts and paragraph 20 of the statement of defence.

 

It is trite law that where there is a dispute between parties to a written agreement, the authoritative and legal source of information for resolving the dispute is the written agreement executed by the parties. See Capital Oil and Gas Industries Limited v. Oteri Holdings Limited [2021] 1 NWLR [Pt. 1758] 483 at 509. Exhibit D2, [Exhibit 12] is 1st Defendant’s Solicitor’s letter and not one of the documents which this Court is required to look at to ascertain the terms and conditions of 1st Defendant’s employment; and so not relevant in determining whether the payment in lieu of notice envisaged by the parties in Exhibit 1 is 1st Defendant’s monthly basic salary or monthly gross salary. From the standpoint of decided cases, the documents which define the relationship between the Claimant and 1st Defendant are the letter of employment, Exhibit 1 [Exhibit D1], and the training bond, Exhibit 2. It is to those documents the Court will look to determine the terms and conditions of the 1st Defendant’s employment and nothing else. See Jowan & Ors. v. Delta Steel Company Ltd. [supra] at page 25.

 

Clause 2, page 5 of Exhibit 1 under termination stipulates thus:

 

“You have the right, without any justification or cause, to terminate your employment with the company without liability for compensation or damages, by giving the Company three (3) months’ notice in writing or payment of three (3) months’ salary in lieu of notice.”

 

Clause 9, under “Acceptance” states:

 

“If you fully understand and agree to meet these terms and conditions and confirm that you are not under bond or contract with any other employer, and that you have never been convicted by any Court of Law, please acknowledge acceptance of this offer by signing and returning the enclosed acceptance copy on or before June 15, 2014 to the undersigned. Non-receipt will be deemed as a rejection of our terms.”

 

On page 6 of Exhibit 1, the 1st Defendant signed as follows:

 

“I, SEKULA SHEHU acknowledge that I have read and fully understood the terms and conditions and that these form part of my contract with Overland Airways Limited. I also confirm that I am not under bond or contract with any other employer.”

 

These provisions are clear and must be given their literal meaning. In cross-examination, the 1st Defendant admitted that he is educated and was not induced to sign the letter of employment, Exhibit 1. He also admitted that, by the provisions of the agreement, he had a right to terminate his employment by giving three months’ notice, and resigned on 3rd May 2016 without giving the requisite 3 months’ notice; but explained that his lawyer counterclaimed against the Claimant. The said counterclaim appears on page 3 paragraphs 14[a], [b] and [c] of 1st Defendant’s Solicitors’ letter, Exhibits D2 and 12, and claims for the sum of N126, 811.80 as the balance due and owing to him by the Claimant and also for an apology. These claims are not contained in the statement of defence and 1st Defendant’s written deposition. Therefore, it does not form part of the Defendants’ defence in this case. The law is trite that where the contents of a document are material to a case, relevant parts of that document must be set out in the pleading. See Tejumade & Anor. v. Olanrewaju & Ors. [2015] LPELR-25985[CA] 53-54. That piece of evidence was not pleaded and goes to no issue. See Lemomu & Ors. v. Alli-Balogun [1975] LPELR-1779[SC] 15-16.

 

14.       A calm consideration of the letter of employment, Exhibit 1, shows that there is nothing in it about basic salary. The agreement of the parties is “payment of three (3) months’ salary in lieu of notice.” If parties intended that the payment in lieu of notice should be 1st Defendant’s basic salary, they would have said so clearly. In addition, the make-up of 1st Defendant’s monthly salary is not stated in the letter of employment, and it is not in my place or that of the parties to read into the contract what is not there. See Agbareh & Anor. v. Mimra & Ors. [2008] LPELR-43211[SC] 23.

 

In paragraph 25 of the statement of facts, Claimant averred that “1st Defendant is entitled to the sum of N244, 585.63 being salary for the month of April 2016 and N15, 786.17 being prorated salary for the month of May 2016. Thus, the total entitlement of the 1st Defendant after he resigned contrary to the Employment Contract is the sum of N260, 371.” The Defendants admitted this averment in paragraph 19 of the statement of defence. What is admitted requires no further proof, see Section 123 of the Evidence Act, 2011. For this reason, I hold that the salary in lieu of notice contemplated by the parties in Exhibit 1 is 1st Defendant’s monthly salary of N244, 585.63 as at April 2016.

 

15.       The next issue is whether the training bond, Exhibit 2, is valid and enforceable against the 1st Defendant. The Defendants’ evidence is that the 1st Defendant was pulled out of class and coerced to sign the training bond which he did not have time to read or consult his counsel before signing. They also state that the B1900 and PT6D type rating course for which the bond was secured is of no professional value to the 1st Defendant as an Avionics engineer. In their final written address, the Defendants argue that the contract did not meet the requirements of a valid contract, and the 1st Defendant was coerced into signing the training bond which he did not have ample time to read. The Claimant contends otherwise, and denied that the 1st Defendant was coerced to execute the training bond. Claimant’s evidence is that the 1st Defendant signed the training bond on 30th June 2015 before commencement of the training on 1st July 2015. It also states that prior to 1st Defendant’s employment, he underwent a pre-employment evaluation from 10th September 2014 to 23rd September 2014, and was informed of the training programme, bond and guarantor’s requirements and had a choice to decline the employment and opt out of the training if the terms were unacceptable to him. Claimant further states that the B1900 and PT6D type rating training is the legal additional aircraft type rating qualification recognized by the Nigerian Civil Aviation Authority which gives the 1st Defendant the knowledge, professional and technical skills and authority to practice both as an Aircraft Engineer and Avionics Engineer; and benefits derived from the training inure for a lifetime and it is this professional qualification that attracted the 2nd and 3rd Defendants. In its final written address, Claimant submits that the training bond agreement, Exhibit 2, possesses the essential elements of a valid contract such as offer, acceptance, consideration, intention to create legal relation and capacity of parties to contract and thus enforceable against the 1st Defendant on the authority of Obaike v. B.C.C. Plc [supra] amongst others. Reference was made to paragraphs 9, 10, 16, 19, 20 and 21 of the statement of facts, Exhibits 3 and 4. It contends that Defendants’ argument that the 1st Defendant executed the training bond under duress and was not afforded time to read it is false, baseless and amounts to a malicious afterthought and referred to Exhibits 1 and 14 and paragraph 7 of its witness’ additional statement on oath. It argues that the 1st Defendant admitted in cross-examination that he executed Exhibit 1 voluntarily which made copious references to the training bond, and thus, was aware of its training bond policy at the point of employment; and that the training bond was executed in the presence of his witness and prior to commencement of the training. Claimant referred to Exhibits 3 and 4 and further submits that a person of sound mind is presumed to understand the nature and content of any document which he signs, and the 1st Defendant cannot be allowed to deny knowledge of the content of the training bond on the basis of unsubstantiated averments in the statement of defence. Reliance was placed on Afribank v. Alade [supra].

 

16.       A contract is an agreement between two or more parties creating enforceable obligations. See Black’s Law Dictionary, 10th edition by Bryan A. Garner, page 389. Certain elements must exist for a contract to be valid. These are offer, acceptance, consideration, intention to create legal relations and capacity to contract. These elements must co-exist for the contract to be valid. See Nwabueze v. First City Monument Bank Plc [2013] LPELR-21266[CA] 10-11 and Eyiboh v. Mujaddadi & Ors. [2013] LPELR-20187[CA] 11. An offer has been defined as an expression of willingness to contract on specific terms, made with the intention that it is to become binding upon acceptance by the addressee. Acceptance of an offer can be in writing, orally or by conduct. See Daspan v. Mangu Local Government Council [2013] 2 NWLR [Pt. 1338] 203 at 232. Consideration is benefit flowing from one party to the other in exchange for the parties promise or undertaking to do or refrain from doing an agreed thing. It is the motivation or essential reason for a contract. See BFI Group Corporation v. Bureau of Public Enterprises [2012] LPELR-9339[SC] 24. Intention to create legal relations simply means that parties intend to be held liable for their obligations in the agreement. A person of a sound mind and full age who is not otherwise disqualified from entering a contract is deemed to have capacity to contract. The test for determining existence of a binding contract is objective. Agreement is not a mental state but an act, and as an act, it is a matter of inference from conduct. The parties are to be judged, not by what is in their minds, but by what they have said, written or done. See Ajagbe v. Idowu [2011] 6-7 SC [Pt. IV] 74 at 100 and Syndicated Investment Holdings Limited v. Nitel Trustees Limited & Anor. [2014] LPELR-22952[CA] 14-15.

 

17.       Guided by the above principles, I have carefully considered the employment contract, the training bond and certificates, Exhibits 1, 2, 3 and 4, the pleadings of the parties and the testimony of the witnesses during cross examination. It is clear from the evidence before me that the essential elements of a valid contract are present in this case. The Claimant’s offer to sponsor the 1st Defendant for aircraft type rating training programme which would give him the professional competence to operate as an Aircraft Engineer on Beech 1900 Airliner Series [CAT A] and Pratt & Whitney PT6A Series, was accepted by the 1st Defendant when he signed the training bond, attended the training programme and received certificates of participation. The consideration is Claimant’s payment of the training fees in exchange for 1st Defendant’s undertaking to continue in its employment for 60 months after the training. There is no doubt that parties have capacity to contract and intended to create legal relations. This is discernible from the fourth paragraph of the recital to the training bond which reads:

 

“The Company and the Employee have agreed that the Employee will execute this agreement as a condition for attending and participating in the programme and continue to be of good conduct.”

 

See also clauses 3, 4, 5 and 10 of the training bond. The 1st Defendant admitted in cross examination that he is educated and was not induced to sign the letter of employment which contains the training bond clause. Consequently, I hold that there is a valid training bond agreement between Claimant and 1st Defendant.

 

18.       However, the Defendants insist that the training bond is not enforceable against the 1st Defendant because he was coerced to execute it. The particulars of coercion are set out in paragraphs 7, 12, 13, 14, 16, 24 and 31 of the statement of defence; and is to the effect that the 1st Defendant was pulled out of the class to sign the bond, which he did not have opportunity to read and seek legal advice. Claimant denied this allegation in paragraphs 3, 4, 5, 6, 9, 11, 12 and 18 of its reply to the statement of defence. The burden of proof that he executed the training bond under duress rests on the 1st Defendant pursuant to Section 136[1] of the Evidence Act, 2011. The only evidence in proof of duress is paragraph 5[f] of his statement on oath, wherein he said:

 

“That the Claimant pulled me out of the class to hurriedly compelled [sic] me to sign a training bond which I was not given the time to read the content or consult my counsel before signing.”

 

This evidence is contradicted by the training bond itself, which shows that the 1st Defendant executed the bond on 30th June 2015 with his witness, Elisha Ibrahim, an Aircraft Engineer; while the training programme commenced on 1st July 2015 and ended on 14th July 2015, see Exhibits 3 and 4. His testimony that he was pulled out of the class to sign the training bond is patently false. His evidence that he did not have time to read the bond and consult his counsel was also controverted by the Claimant in paragraphs 6, 9 and 12 of the reply to statement of defence, and is to the effect that the 1st Defendant underwent a pre-employment evaluation process between 10th September 2014 and 23rd September 2014 during which period he was briefed on Claimant’s training programme, the bond and guarantor’s requirements; and he had a choice to decline the employment or opt out of the training if the terms were onerous. In addition, execution of the training bond for a tenor of 5 years is a term of the employment contract and necessary for the 1st Defendant to undertake any type rating training programme sponsored by the Claimant. The 1st Defendant admitted in cross examination that he was not coerced to sign the employment contract which contains the training bond clause. Lastly, 1st Defendant’s execution of the training bond was attested by his witness, one Elisha Ibrahim, an Aircraft Engineer. Thus, the 1st Defendant had ample time to review the training bond with Mr. Elisha Ibrahim before appending his signature. The absence of his Solicitor in these circumstances is not indicative that he was not properly guided in signing the training bond. Flowing from the above, I find as a fact that the 1st Defendant’s evidence that he signed the training bond under duress and was not afforded time to read it is false, baseless and an afterthought aimed at avoiding his obligations under the bond.

 

19.       The general rule is that a party is estopped by his deed and a person of full age and understanding is bound by his signature to a document, whether he reads or understands it or not. See Enemchukwu v. Okoye & Anor. [2016] LPELR-40027[CA] 16 and Fhomo Nigeria Limited v. Zenith Bank Plc [2016] LPELR-42233[CA] 44-45. In the latter case, Georgewill, J.C.A., observed that in law and in good conscience, persons, both human and artificial, are bound by the terms of contracts entered willingly by them and it is indeed the hallmark of honour to be so bound. No person who has not alleged and proved fraud or misrepresentation or illegality against due execution of a contract shall be allowed to resile from the terms of a contract duly and willingly entered by him. There are exceptions to this general rule. These include that the party signed the document by fraud, duress, undue influence, misrepresentation or a plea of non est factum. I found above that the 1st Defendant’s allegation of duress is not supported by evidence, and so he does not come under any of the exceptions to the rule. Accordingly, I hold that the training bond agreement is binding on the 1st Defendant.

 

20.       That is not the end of the matter. The question one may ask, at this point, is whether the restriction on the 1st Defendant is reasonable and enforceable in the circumstances of this case? Generally, a covenant in restraint of trade is unenforceable being against public policy. See Section 34[1][b] and [c] of the 1999 Constitution as amended and Koumoulis v. Leventis Motors Limited [1973] LPELR-1710[SC] 13. A training bond, in so far as it restricts the employee’s mobility, is prima facie not enforceable. See Overland Airways Limited v. Jam [2015] 62 NLLR [Pt.219] 525 at 605. For it to be enforceable it must be reasonable with reference to the interest of the parties and the public. Reasonability is determined by taking into account the bonding period, the restrictiveness of the covenant and the amount required to be paid in the event of breach. See Koumoulis v. Leventis Motors Limited [supra] at pages 11-12 and Overland Airways Limited v. Jam [supra]. It has been suggested that a bonding period of between one year to three years is reasonable, while a bonding period of five years is ‘outrightly unreasonable’. See Overland Airways Limited v. Jam [supra] at 606. As observed in Balogun & Ors. v. Federal University of Technology, Akure & Anor., Suit no. NICN/AK/49/2015, which judgment was delivered on 15th November 2018, reasonability or otherwise of a training bond is relative, and dependent on primacy of facts of each case. A bonding period of five years may be justified by the investment made by the employer in developing the employee. The burden of proof in each case is on the employer who seeks to enforce the bond. See Section 133[1] of the Evidence Act, 2011 and Koumoulis v. Leventis Motors Limited [supra].

 

21.       What is the evidence in support of reasonability of the training bond? This is contained in paragraphs 7, 8, 11, 12, 13, 18, 19, 21, 22 and 23 of Claimant’s witness’ statement on oath, and paragraph 6 of the witness’ additional statement on oath; and it is to the effect that the 1st Defendant did not possess adequate qualification to discharge his duties as an Aircraft Engineer at the time he applied to the Claimant for employment and had no aircraft type rating, professional and technical expertise to maintain Claimant's aircraft type. Given this shortcoming, parties agreed that the Claimant would sponsor him for the relevant trainings, the cost of which runs into several thousands of dollars, in consideration of the 1st Defendant remaining in its employment for five years. The training programme would give him the professional and technical skills to specialize as an Aircraft Engineer [Avionics] on Beech 1900 Airliner Series [CAT A] and Pratt &Whitney PT6A Series, and the type rating licence is for his benefit and gives him the authority to maintain that type of aircraft anywhere in the world.  In recent times, the Nigerian aviation industry witnessed high mobility of engineers trained and type-rated by their employers at great cost resulting in execution of training bonds obligating the engineers to serve for an agreed period with the airline to allow the airline recoup its investment and if the engineer disengages before expiration of the bond period, he will be required to refund the entire cost of the training. The 1st Defendant was aware of this policy which also formed part of the terms of his contract of employment, and during the subsistence of his employment, he attended the B1900 and PT6D type rating course conducted by AME Training Academy at Landover Aviation Business School, Lagos from 1st July 2015 to 14th July 2015 and on completion obtained a type rating qualification and technical competence recognized globally to maintain Beech 1900 Airliner Series [CAT A] aircraft series and Pratt & Whitney PT6A Series [Cat C] aircraft engines. In consideration of the expenses incurred by the Claimant for the trainings, it was agreed that the 1st Defendant would remain in its service for 60 months after the trainings, and if he defaults, he would be liable to repay the sum of N2, 000,000 and any additional costs incurred by the Claimant for his training.

 

The Defendants did not controvert these facts. Does this make the bond automatically enforceable? I do not think so. The fact that evidence is unchallenged does not automatically entitle the party adducing it to judgment. See Elewa & Ors. v. Guffanti Nigeria Plc [2017] 2 NWLR [Pt. 1549] 233 at 248. The evidence presented by the Claimant must, on its own, justify the grant of the reliefs sought. Where it is incapable of sustaining the claims, then the Claimant has not discharged the burden of proof and the claim is bound to fail. See Erinfolami v. Oso [2011] LPELR-15357[CA] 18. Applying this principle to this case, I hold that the Claimant must still prove that the bonding period and the bond sum are reasonable in the circumstances of this case. It is not enough to say that the 1st Defendant did not possess the technical competence to discharge his duties as an Aircraft Engineer and it undertook his training and the benefit inures to him for life. There must be evidence of the amount spent on his training, and the loss suffered by the Claimant in consequence of his breach. See Overland Airways Limited v. Jam [supra] at 608.

 

22.       There is nothing in the Claimant’s pleading or evidence on the amount it spent on the 1st Defendant’s training or the loss it has suffered by reason of his breach of the training bond. Instructively, the second recital to the training bond states:

 

“The Company has agreed to bear the cost of the Employee’s tuition, attendance and participation in the programme at an amount not exceeding N2, 000,000 [two million naira only] upon an express agreement that the said Employee, upon completion of the programme, shall thereafter return and continue and/or remain in the employment of the Company for a minimum of sixty [60] months.”

 

The operative words are “an amount not exceeding N2, 000,000”. This is not conclusive of the fact that the sum of N2, 000,000 was spent on the training. It merely shows that the Claimant’s permissible exposure limit is N2, 000,000. The Defendants made a feeble attempt to prove the cost of 1st Defendant’s training by tendering Exhibit D3, which is referred to in paragraph 5[c] of the Defendants’ witness’ statement on oath. However, there is nothing in the statement of defence or the witness’ deposition to show the amount spent on the 1st Defendant’s training. Exhibit D3 shows that the training fee for five days course on Beechcraft 1900 series is R7,732 and a five-days course on PT6A series is equally R7,732. However, these figures are not conclusive. Ame Training Academy’s response to the enquiry on page 2 of Exhibit D3 is instructive. It states, inter alia:

 

“Our instructors can travel. The charges will stay the same for the course but S & T, ACCOMODATION FLIGHT TICKETS AND TRANSPORT must be added on. Also, the once off [sic, one-off] approval must be obtained by you for NCAA and that cost will also be for the customer.”

 

In the end, the total cost of 1st Defendant’s training and certification remains a mystery. Also, the amount to be paid by the 1st Defendant in the event of a breach did not take account of the period he has served the Claimant after the training. From the evidence, the training was concluded on 14th July 2015 and time began to run from that day. The 1st Defendant resigned on 3rd May 2016 a period of approximately nine months after the training. To require him to pay the bond sum of N2, 000,000 without regard to the period he has served the Claimant will not be fair in the circumstance. Also, bonding the 1st Defendant for a period of five years for an investment of approximately R15,464, which at current exchange rate of about N30 to a rand is N463, 920 is unreasonable.

 

23.       I am aware that some legal writers have posited that even if unreasonable clauses are stipulated in the contract such as imposing exorbitant duration of compulsory employment period or huge penalty, the Court could award compensation if it determines that the employer has incurred loss by such breach of contract. See Overland Airways Limited v. Jam [supra] at 606. The 1st Defendant acknowledged that he attended the two type rating training programmes paid for by the Claimant, even though he contends that it is not relevant to his course of study as Avionics engineer. There is evidence that the B1900 and PT6D type rating training is the legal additional aircraft type rating qualification recognized by the Nigerian Civil Aviation Authority which gives the 1st Defendant the professional and technical competence to practice as an Aircraft Engineer and the benefits derived from the trainings inure for a lifetime, and that it was this qualification that attracted the 2nd and 3rd Defendants. This Court cannot gloss over this evidence.

 

In the Overland Airways Limited v. Jam [supra] at 609-610, Kanyip, J., posited:

 

“Courts are enjoined, in making an award for compensation in the event of breach of an employment bond, to consider the circumstances of the case given that the employer might incur a loss and, therefore, may be entitled for compensation. However, Courts must note that the compensation awarded should be reasonable to compensate the loss incurred and should not exceed the penalty, if any, stipulated in the contract. The Court, of course, determines the reasonable compensation amount by computing the actual loss incurred by the employer having regard to all circumstances of the case; so that even if the bond stipulates payment of any penalty amount in the event of breach, it does not mean that the employer shall be entitled to receive the stipulated amount in full as compensation on the occurrence of such default. Rather the employer shall be entitled only for reasonable compensation as determined by the Court.”

 

In paragraph 38 of Claimant’s witness’ deposition, she testified thus:

 

“I know as a fact that sequel to the above, the Claimant lost benefit of its contract investment in the 1st Defendant and suffered business disruptions in consequence of the length of time it would ordinarily take to procure the services of an alternative engineer with the requisite experience which the 1st Defendant acquired through the Claimant, to maintain its Aircraft as aforesaid.”

 

There is no doubt that the trainings Claimant exposed the 1st Defendant to are expensive. If it were otherwise, the 1st Defendant would not have signed the training bond. Also, it is indisputable that the value-add of the trainings to the 1st Defendant is not severable and inures to his benefit for life. There is equally no gainsaying the fact that Claimant’s business has suffered disruptions from the 1st Defendant’s resignation in breach of the training bond. However, there is no evidence of actual loss incurred by the Claimant. I am compelled to fall back on Exhibit D3 which sets out the initial cost of the two type rating courses attended by the 1st Defendant at approximately R15,464, which at current exchange rate of about N30 to a Rand is N463, 920. In view of the above, I hold that the Claimant is entitled to compensation for the amount paid as course fees for 1st Defendant’s trainings.

 

24.       The next issue is whether the 2nd and 3rd Defendants are proper parties to this suit. Defendants argue that the 2nd and 3rd Defendants are not proper parties to this suit being employees of the Nigeria Police Force and Police Service Commission pursuant to Section 214[1] of the 1999 Constitution, as amended, and paragraph 30[a] and [b] of part 1 of the third schedule to the Constitution. They contend that the 1st Defendant being a senior Police officer was appointed by the Police Service Commission which ought to have been sued instead of the 2nd and 3rd Defendants. The Court was urged to hold that this suit is incompetent for non-joinder of proper parties.

 

Conversely, Claimant argues that the pleadings provide the basis for exercise of the Court’s jurisdiction to entertain the matter, and submits, on the basis of the facts before the Court and the law, that the 2nd and 3rd Defendants are proper parties to this suit on the ground that the 1st Defendant is an employee of the Nigeria Police Force established under Section 214 of the Constitution, and the 2nd Defendant is sued in his capacity as the head of the Nigeria Police Force which employs the 1st Defendant pursuant to Section 215[2] of the Constitution, whilst the 3rd Defendant is sued in his capacity as the administrative head of the Air Wing Command of the Nigeria Police Force. Reference was made to paragraphs 2, 3, 4, 30, 31, 32 and 35 of the statement of facts and paragraph 1 of Defendants’ witness statement on oath. It submits further that the question whether the 2nd Defendant is a proper party in any suit where the complaint is against the Nigeria Police Force has been settled in several decisions of the appellate Courts including Oladeji v. IGP & Anor. [supra] and Nwanna v. A G Federation & Anor. [supra]. The Court was urged to discountenance Defendants’ submission and hold that the 2nd and 3rd Defendants are proper parties to this suit, the Nigeria Police Force being duly represented by the 2nd and 3rd Defendants. Nonetheless, it contends that, assuming 2nd and 3rd Defendants are not necessary parties to this suit, a misjoinder or non-joinder of parties will not defeat any action before the Court on the authority of Order 13 Rule 14[1] of the Rules of this Court, Green v. Green [supra] and Bello v. INEC & Ors. [supra]. It submits that in the unlikely event that the Court holds that 2nd and 3rd Defendants are not proper parties, the reliefs sought in this suit can still be determined between it and the 1st Defendant with the exception of reliefs [c] and [f].

 

25.       The issue of proper parties is critical to any adjudication. Before an action can succeed, the parties must be shown to be proper parties to whom rights and obligations arising from the cause of action can attach. See U.O.O. Nigeria Plc v. Okafor & Ors. [2020] 2-3 SC [Pt. II] 135 at 164. As rightly argued by the Claimant, it is the facts of the case that determine proper parties to the suit. See Majeologbe v. Solarin [2015] LPELR-25588[CA] 21. This case is essentially between an employer and its former staff. The 2nd and 3rd Defendants are sued for inducing breach of the employment contract between 1st Defendant and Claimant by continuing to employ him after being informed of his outstanding obligations to the Claimant. Clearly, evidence of employment relationship between the 1st Defendant and 2nd and 3rd Defendants is necessary. The Claimant in paragraph 2 of its pleading states that the 1st Defendant is “currently in the employment of the 2nd and 3rd Defendants”. In paragraph 30 of the statement of facts it averred that “Following the resignation of the 1st Defendant, the Claimant became aware that the Air Wing Division of the 2nd Defendant had employed the 1st Defendant.” Similar expressions are used in paragraphs 31 to 35 of the statement of facts. The Defendants admitted paragraph 2 of the statement of facts and in paragraph 22 of the statement of defence averred that “The Defendant[s] admit paragraph[s] 29 and 30 of the Claimant’s statement of claim only to the extent that Claimant was aware that he has secured another employment with the Nigeria Police Airwing since 2016 December.”

 

From the pleading, it is clear that Claimant assumes the existence of an employment relationship between the 1st Defendant and 2nd and 3rd Defendants, while Defendants insist that the 1st Defendant is an employee of the Nigeria Police Force. No doubt, the position of the 2nd Defendant is statutory, and by Section 215[2] of the 1999 Constitution [as amended], the Nigeria Police Force is under his command. Nevertheless, this does not create any employment relationship between the 2nd Defendant and the 1st Defendant. In Oladeji v. IGP & Anor. [supra], the Court of Appeal posited that the relationship between the Inspector General of Police and members of the Nigeria Police Force is statutory, and not one of master and servant. Also, while the position of the Commissioner of Police for a State is statutory, the position of the 3rd Defendant is not provided for in the 1999 Constitution, as amended. He is appointed by the Police Service Commission pursuant to Section 12[1] of the Police Act, 2020, and deployed by the 2nd Defendant to the Air Wing Department in accordance with Section 12[3] of the Police Act. The 1st Defendant is an appointee of the Police Service Commission by virtue of Section 14 of the Police Act, which provides, “The Police Service Commission shall appoint such other persons to offices in the Police Force as are required for the effective and efficient performance of the functions of the Police Force on such terms and conditions as may be prescribed by the Police Service Commission.”

 

Undoubtedly, while the 2nd Defendant is the head of the Nigeria Police Force, he is not a proper party to this suit because there is no employment relationship between him and the 1st Defendant. The same is true of the 3rd Defendant. The proper parties are the Nigeria Police Force and Police Service Commission. The cases cited by Claimant relate to enforcement of fundamental rights and cases which challenge the actions of the Nigeria Police Force in the performance of their constitutional duties. This is not the case here. Accordingly, I hold that the 2nd and 3rd Defendants are not proper parties to this suit.

 

In the light of the foregoing the lone issue is resolved partly in favour of the Claimant and partly in favour of the Defendants.

 

26.       This leads me to the reliefs claimed in this suit. Relief one is for a declaration that the 1st Defendant can only validly terminate the employment contract with the Claimant by giving the Claimant three months' notice or three months' salary in lieu of notice and that the 1st Defendant breached the employment contract when he failed to give the Claimant the requisite three months' notice or three months' salary in lieu of notice.

           

It is settled law that a Claimant who seeks a declaratory relief must prove its entitlement to the declaration before the Court can pronounce on it. See Ilori & Ors. v. Ishola & Anor. [supra]. Evidence which will support a legal right must be credible, cogent and convincing.  See Ibrahim v. Garki & Anor. [supra]. The 1st Defendant admits that he was required to give three months’ notice of termination of his employment to the Claimant or pay three months’ salary in lieu of notice. He equally admits that he did not give the required notice. A fact admitted by a party in his pleading is no longer in issue and needs no further proof. See Section 123 of the Evidence Act, 2011 and Capital Oil and Gas Industries Limited v. Oteri Holdings Limited [supra] at 505. I find this claim proved and it is granted.

 

The second relief seeks a declaration that the 1st Defendant breached the training bond agreement dated the 29th June 2015 between the Claimant and the 1st Defendant. I found elsewhere in this judgment that the training bond agreement is valid and binding of the 1st Defendant and that his resignation within nine months of completion of his type rating training is in breach of the training bond. This relief also succeeds.

 

The third claim is for a declaration that the 2nd and 3rd Defendants wrongfully induced the 1st Defendant to breach his employment agreement and Training Bond Agreement by failing to carry out the necessary due diligence before employing the 1st Defendant and encouraged the 1st Defendant to breach the said agreement which practice constitutes an unfair labour practice. Having found that the 2nd and 3rd Defendants are not employers of the 1st Defendant and accordingly not proper parties to this suit, I hold that this relief has not been proved, and it is consequently refused.

 

The fourth relief is for an order of Court directing the 1st Defendant to pay the Defendant [sic, Claimant] the sum of N523, 409.76 [five hundred and twenty-three thousand, four hundred and nine naira, one seventy-six kobo] being the 1st Defendant's three months' salary in lieu of notice [less entitlements] as agreed under the 1st Defendant's contract of employment with the Claimant. The law is settled that where an employment is determined in breach of its terms, the innocent party is entitled to damages which is salary for the agreed period of notice. See Idoniboye-Obu v. NNPC [2003] LPELR-1426[SC] 22. This relief is ancillary to relief one above and the relief having been granted, this relief must invariably succeed. Moreover, the 1st Defendant admitted in his pleading and under cross examination that he was required to give three months’ notice of termination of his employment to the Claimant or pay three months’ salary in lieu of notice, but resigned without giving the requisite notice. His argument that the three months’ salary in lieu of notice is his basic monthly salary has been found to have no contractual basis, and therefore, incorrect. In the circumstance, this relief succeeds.

 

The fifth relief is for an order of this Honourable Court compelling the 1st, 2nd and 3rd Defendants jointly and severally to pay to the Claimant the sum of N2, 000, 000.00 [two million naira only] being the cost and expenses incurred by the Claimant for the training of the 1st Defendant under the Bond Agreements. I found in this judgment that the 2nd and 3rd Defendants were improperly joined in this suit. I also found that to ask the 1st Defendant to pay the bond sum of N2, 000,000 without regard to the period he has served the Claimant is unfair and bonding him for five years for an investment of approximately R15,464, which at current exchange rate of about N30 to a rand is N463, 920 is unreasonable. I equally found that in view of the disruptions the Claimant’s business suffered as a result of the 1st Defendant’s breach of the training bond, the Claimant is entitled to compensation for the amount paid as course fees for the type rating trainings in the sum of N463, 920. This relief succeeds in part.

 

The sixth claim is for an order directing both the 2nd and 3rd Defendants to pay the sum of N5, 000,000 [five million naira] as general and exemplary damages to the Claimant for inducing the 1st Defendant to breach his contract of employment with the Claimant. This claim is ancillary to and dependent on relief three. Relief three having failed, this claim must invariably fail. See Atunka & Anor. v. Aboki & Anor. [2016] LPELR-41199[CA] 11.

 

Reliefs seven and eight are for interest on the above sum at the rate of 21% per annum from the date of judgment in this suit until liquidation of the judgment debt, and the costs of this action. This Court is empowered in Order 47 Rule 7 of its Rules at the time of delivering judgement to make an order for payment of interest on the judgment sum at a rate not less than 10% per annum. Cost follows events and a successful party is entitled to its cost. By Order 55 Rule 1 of the Rules of this Court, award of costs is subject to the discretion of the Court, which discretion, in all circumstances, must be exercised judicially and judiciously. Costs are not meant to be a bonus to the successful party or serve as punishment against the losing party. It cannot also cure all the financial losses sustained in litigation and the winning party has a duty to mitigate its losses. The main aim of cost is to indemnify the successful party for its out-of-pocket expenses and be compensated for the true and fair expenses of the litigation taking the facts of each case into consideration. Some of the factors to consider in awarding cost are filing fees paid, duration of the case, number of witnesses called by the party in victory, the vexatious nature of the action, cost of legal representation, monetary value at the time of incurring the expenses et cetera. See Master Holding [Nig.] Limited & Anor. v. Emeka Okefiena [2010] LPELR-8637[CA] 34-35. From my records, the Claimant sent the sum of N21, 310 as filing fees. The Claimant’s representative was in Court on ten occasions, while it’s counsel appeared before me eleven times. In the circumstance, cost of N250, 000 is awarded in favour of the Claimant against the 1st Defendant.

 

27.       In the final analysis, this case succeeds in part. Reliefs 3 and 6 fail and are dismissed. Reliefs 1, 2, 4 and 8 succeed and are granted. Reliefs 5 and 7 succeed in part. For the avoidance of doubt, judgment is entered in favour of the Claimant against the 1st Defendant as follows:

 

a.      It is declared that the 1st Defendant can only validly terminate the employment contract with the Claimant by giving the Claimant three months' notice or three months' salary in lieu of notice and that the 1st Defendant breached the employment contract when he failed to give the Claimant the requisite three months' notice or three months' salary in lieu of notice.

 

b.      It is declared that the 1st Defendant breached the training bond agreement dated the 29th June 2015 between the Claimant and the 1st Defendant.

 

c.      The 1st Defendant is hereby ordered to pay to the Claimant the sum of N523, 409.76 [five hundred and twenty-three thousand, four hundred and nine naira, one seventy-six kobo] being the 1st Defendant's three months' salary in lieu of notice [less entitlements] as agreed under the 1st Defendant's contract of employment with the Claimant.

 

d.      The 1st Defendant is hereby ordered to pay to the Claimant the sum of N463, 920 [four hundred and sixty three thousand, nine hundred and twenty naira] being the course fee paid by the Claimant for his type rating training.

 

e.      Cost of N250, 000 [two hundred and fifty thousand naira] is awarded in favour of the Claimant against the 1st Defendant.

 

f.        The monetary awards shall bear interest at the rate of 15% per annum from today until it is fully liquidated.

 

Judgement is entered accordingly.

 

 

 

 

 

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

12/4/2021

 

Attendance: Claimant represented, Defendants absent.

 

Appearances:

 

Adetoyese Latilo Esq with Michael Akinleye Esq. and Joy Ebong Esq. for the Claimant

 

Anthony Iyeye Esq. for the Defendants