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JUDGMENT Introduction and claims The claimant filed this complaint against the defendant on 16th April 2015 seeking the following reliefs: 1. A declaration that the refusal of the defendant to pay the claimant his salaries and allowances lawfully earned is unlawful. 2. A declaration that the defendant’s refusal to grant the claimant a ‘Letter of no Objection’ is unlawful. 3. An order for: a. outstanding salaries from 7th of March 2013 to 8th of November 2013 amounting to $86,400 and local allowances from 7th of March 2013 to 31st August of 2013 and 1st-8th November, 2013 amounting to $4,500, total sum being $90,900 (N15,175,755.00 at the current exchange rate of N166.9500 to $l) lawfully earned by the claimant while working for the defendant. b. General damages in the sum of N3,000,000.00 (Three Million Naira only). c. Cost of the action assessed at 500,000(Five hundred thousand naira only). d. Interest at the rate of 21% per annum till the judgment sum is paid. Accompanying the complaint is the statement of facts, claimant’s statement on oath and copies of documents. The defendant filed its statement of defence and a counterclaim on 26th June 2015 together with the accompanying documents. The defendant counter claimed as follows: 1. The sum of N1,773,000.00 being the Naira equivalent of the USD15,000.00 expended by the counterclaimant on account of the defendant to counterclaim’s simulation training less USD6,000.00 being the defendant to counterclaim’s total weekly allowance of USD500.00 per week for a period of twelve weeks at the current Central Bank of Nigeria’s Exchange Rate of NGN 197 per USD1. 2. The sum of N404,333.00 being the costs and expenses incurred on account of the defendant to counterclaim’s pilot examination, medical examination, accommodation and utility charges for the defendant to counterclaim’s three months’ stay with the counterclaimant. 3. General damages of N10,000,000.00 as compensation for the inconvenience and difficulties caused to the counterclaimant by the defendant to counterclaim’s sudden resignation from the counterclaimant’s employment. 4. The costs of the action in the sum of N2,000,000.00. The claimant filed a reply and a defence to the counter claim on 30th December 2015. Case of the claimant The claimant’s case on the pleadings is that he is a citizen of Algeria, and he is a qualified, certified and licensed Pilot permitted to carry on business in Nigeria. The claimant stated that he was employed by the defendant as an MD-83 Captain with effect from the 7th of March, 2013 and that the Service Agreement set out the terms and conditions of the contract and formed the relationship between them. He stated that under the terms of the service agreement, specifically clause 4, the defendant contracted to pay him an amount equivalent to $10,800 (Ten Thousand, Eight Hundred Dollars) and a local allowance of $750 (Seven Hundred and Fifty Dollars) monthly in Nigerian Naira. That he was only paid 2 local allowances for September and October, 2013 for his remuneration for his services to the defendant for the entire period he was in its employment; and in November, 2013, he was paid $3100 as refund for expenses incurred on a trip to Miami for Dana assessment. The claimant stated that during his employment with the defendant, the Federal Government mandated the defendant to send all its personnel for type rating and after attending this type rating, the defendant, contrary to the normal practice, neglected or refused to pay for his qualifying certification such that it rendered the attendance of the courses as being a mere formality that could not be applied on the job. The claimant stated that several times during his employment with the defendant, he demanded for his unpaid salaries and allowances but defendant continually ignored him. The claimant stated that he was constrained to resign on the 8th of November 2013 as he had not been paid any remuneration since he was employed apart from the local allowances paid in September and October 2013. He further stated that after leaving the defendant, he continued to demand for his unpaid monies and the defendant persistently paid no attention to him. That eventually, the defendant claimed via email that the claimant was in its debt having been sent on training at the defendant’s expense. The claimant averred that he severally requested a statement of account from the defendant showing the amount the defendant purported that he owed and requested that any sum could be set off from his unpaid salaries and allowances but that the defendant however failed to reconcile the said accounts. The claimant stated that he was offered employment with another airline but as a prerequisite, he had to produce a letter of ‘No Objection’ from the defendant first. The claimant contacted the defendant and requested that he be given a letter of ‘No Objection’ but the defendant refused and till date has not given him one. The defendant stated that the defendant’s refusal to give him a ‘No Objection’ is spiteful and unlawful knowing that it is pre-requisite to getting subsequent employment within the jurisdiction. The claimant stated that he always performed his duties diligently and was commended for doing so by the defendant; that he has suffered undue hardship having being put in a very difficult position by the defendant. The claimant testified in support of his claims and adopted his statement on oath. It was in terms of the pleadings and he relied on his documents. Under cross examination, the claimant told the court that he was obtaining certificates to be able to work with the defendant from NCAA, that he could not fly the aircraft but could do other work. He told the court that the position given to him by the defendant was Captain which is the same position he held in his previous employment with Arik but a different Aircraft. The claimant told the court that he obtained his Pilot licence in 1990 and that it was not possible for the defendant to allow him fly their aircraft without the approval of NCAA. He informed the court that he obtained the Instruments Rating Renewal in August 2013 and that he already had the medical certificate before I joined the defendant as he was already flying in Nigeria. The claimant confirmed that in May 2013, he requested the defendant to allow him stay in the premises while obtaining necessary certificates and documents and he was already while working with the defendant at that time. The claimant stated that his first visa was given in June 2013 and the 2nd entry visa was July 2013. The claimant confirmed that he is not to seek another employment for two years after his exit from the defendant. He admitted that when he wrote the email seeking an exit, it was not up to two years after I left the defendant’s services. The claimant said he gave the defendant 3 months’ notice before I left and that he resigned on 8th November 2013. He confirmed that the defendant employed him for commercial purposes to fly its aircraft, and he did not fly the defendant’s aircraft from one place to another. The claimant then closed its case. Case of the defendant The case of the defendant on the pleadings is that it employed the claimant pursuant to the Service Agreement dated March 4, 2013. The defendant stated that the claimant was employed as MD-83 Captain subject to statutory and other relevant training, tests and clearance by the Nigerian Civil Aviation Authority (NCAA). The defendant stated that the claimant was not rated as MD-83 Captain and so it could not use the claimant as Captain MD-83 without the approval of the NCAA; that the claimant was not given NCAA Medical Certificate until August, 2013. The defendant stated that the claimant joined its employment on August 17, 2013 when he obtained the relevant training and documents. That it was only required to pay for the services rendered by the claimant under the Service Agreement. The defendant stated that the claimant did not carry out any of the services set out in the Service Agreement. The defendant stated that it requested the NCAA in August, 2013 to conduct technical examination for the claimant and to approve him as pilot in its employment. That the the use of its premises and facilities by the claimant before August, 2013 was to enable the claimant obtain relevant permits and authorizations for himself and his family. The defendant stated that the claimant underwent simulation training in the United States of America when he was still in the employment of Arik Air International Limited (“Arik Air”) and that he was still in the employment of Arik Air when he signed the Service Agreement and it was impossible and is not allowed under the NCAA’s Regulations for the claimant to be working for Arik Air and the defendant at the same time. The defendant stated that the claimant is estopped from asserting that he was in its employment prior to August 2013 and is not entitled to payment of salaries and local allowances from March 4, 2013 to August 17, 2013 having not rendered the services in the agreement. The defendant stated that when the claimant returned to Lagos on August 17, 2013 from his simulation training, the Flight Operators prepared the claimant’s technical examination and applied for his license certification from the NCAA. Thereafter, the claimant as mandatorily required flew certain hours with a Training Captain and was required to be checked out by the Director of the Flight Operations but he was never checked out from the line to fly as a Captain and he was only entitled to his weekly allowance of USD500 for the twelve weeks that he was with the defendant until he was checked out for the line operations. The defendant stated that every Pilot is entitled to his/her full salary only after checked-out to the line operations. The defendant further stated that full performance of the Service Agreement by the defendant was frustrated by the acts of the Federal Government in revoking and/or suspending its Operating Licence on October 6, 2013 which was only lifted on January, 2014. The defendant stated that the suspension of its Operating Licence negatively affected its operations and made it impossible to meet its costs and expenses including payment of salaries and allowances. The defendant stated that the claimant is not entitled to a Letter of “No Objection” and has not applied for same; and that the Service Agreement forbids the claimant from being interested in, or engaged as an employee during the term of his Service Agreement in Nigeria or where the defendant conducts its business until the expiration of certain period. By way of counterclaim, the defendant/counterclaimant stated that it incurred USD15,000.00 on the claimant/defendant to counterclaim as travel, accommodation and other associated expenses in respect of his simulation training in the United States of America; and that the claimant resigned his appointment on November 8, 2013 without appropriate notice. The defendant stated that it is the policy of the counterclaimant that all its pilots must undergo simulation training at their own costs and expenses and that the pilots can only claim reimbursement at the end of their contract periods. That the claimant pleaded with the defendant that he was broke and could not financially undergo the simulation training and asked for a loan or that it pays for the costs of simulation training and later deduct from his emoluments. The defendant stated that based on this it agreed to pay for the simulation training on the understanding that the claimant would reimburse him when he started working with the counterclaimant. He stated that the claimant/defendant to counterclaim failed to reimburse it and that by the Service Agreement, the it is entitled to deduct the value of tickets from Algeria and Nigeria or other administrative charges incurred and is also entitled to recover from the claimant the costs of simulation training. The defendant stated that the resignation of the claimant/defendant to counterclaim in the manner it occurred made it suffer loss of the money expended on his simulation training, and it was inconvenienced and had to look for a replacement. The defendant/counterclaimant stated that it also incurred the sum of N146,000.00 as costs and expenses on the claimant’s Pilot examination, medical examination, rent for using its accommodation for three months amounting to N258,333.00, and N100,000.00 utility charges on his use of the apartment for three months, damages and cost. The defendant called one witness Philomena Nkiruka Itumo (DW) Legal Manager. She adopted her statement on oath. It was in terms of the pleadings and she relied on the defendant’s admitted documents. Under cross-examination DW told the court that that the defendant trains all its Pilots before it offers them employment and that the Captains are given type rating licencing training. She said the training is paid for by each Captain. DW said she was aware that the claimant was employed by Arik prior to his employment with the defendant and that he disclosed this to the defendant. DW stated that the claimant did not have all his valid documents. She explained that his licence was not valid to work with the defendant and she said she could confirm if the claimant had a valid visa when he was engaged. DW told the court that the certificates shown to her were issued by the training school and they were in respect of training the claimant went for and paid by the defendant. DW denied that the certificates are with the defendant. She said she did not know who paid for the certificates. DW confirmed that the claimant was not paid any salary while he was undergoing training but was paid given an allowance. She also confirmed that the defendant never paid the claimant any salary; and that the defendant received a letter from the claimant asking for ‘No objection’. DW admitted that the claimant was entitled to accommodation, and the cost of air travel to Lagos. She told the court that the simulation training course took place sometime in July and that it was not the original time the claimant was scheduled to go for training. DW said she did not know why the defendant rescheduled the simulation training. DW stated that for the period the claimant is demanding salary, he was in the services of Arik. The defendant then closed its case. Final addresses The defendant’s final address is dated and filed on 4th May 2017. The claimant’s final address is dated and filed on 11th April 2018. The defendant’s reply on law is dated 24th April 2018 and is filed on 25th April 2018. Counsel adopted their respective final addresses. Learned counsel to the defendant submitted two issues for determination: 1. Whether the claimant has proved his case so as to be entitled to any of the reliefs sought? 2. Whether the defendant (as the counterclaimant) is entitled to the reliefs sought in its counterclaim? He submitted that on the evidence adduced, the claimant’s employment was conditional on the approval of the NCAA, and he did not join the defendant until August 2013, his arrival date in Nigeria. It was his submission that prior August 2013, the claimant was in the employment of Arik Air and that a person who has by his act permitted another to believe a thing to be true, is not allowed to deny the truth of that thing referring to Section 169 0f the Evidence Act, 2011; Otunba Fatai Sowemimo v Otunba Dayo Awobajo [1999] 7 NWLR (pt. 610) 335. Counsel argued that on the basis of the service agreement, the claimant is not entitled to monthly salaries and allowances having not provided services. It was his submission that the service agreement was frustrated by the acts of the Federal Government; that once a contract is frustrated, parties are released from their respective obligations citing NBCI v Standard (Nig) Eng. Co [2002] 2 NWLR (pt 768) 104. Counsel submitted that the claims for N15,175,755.00 (USD90,900.00) and N500,000.00 as cost of this action are in the nature of special damages which ought to have been specifically pleaded and proved citing UTB (Nig) Ltd v Ajagbule [2006] 2 NWLR (Pt 965) 447. Learned counsel submitted that the claimant failed to prove his case and establish his entitlement to the reliefs and as such, the claims should be dismissed citing UniJos v Ikegwuoha [2013] 9 NWLR (pt. 1306) 478. He submitted that the defendant/counter claimant is entitled to the counter claim having proved same. Learned counsel to the claimant submitted two issues for determination: 1. Whether the claimant has successfully proved his case and is entitled to outstanding salaries, damages, cost of litigation and interest. 2. Whether the defendant has proved his counter claim. She submitted that on the evidence adduced, the failure of the defendant to keep up with the terms of the Service Agreement by paying salaries is a fundamental breach of the terms of the employment contract citing Okiki v Nigerian Custom Service Board 65 NLLR (pt 231). Counsel submitted that as seen in the Service Agreement, the claimant was employed by the defendant which is 7th March, 2013, and is entitled to resign his appointment since the defendant defaulted in paying his salaries and allowances. Learned counsel submitted that the claimant is entitled to N3,000,000.00 as general damages for the defendant’s deliberate refusal to pay the salary, compensate for the loss of earnings incurred as well as emotional stress caused by the defendant citing Access Bank Plc v Mr. Ethel O. Ugwuh [2013] LPELR-20735 CA. It was counsel’s submission that the counterclaim has not been proved, is unmeritorious and should be dismissed. Decision I have carefully considered all the processes filed, the evidence led, the written submissions, arguments and authorities canvassed by Counsel in the final addresses in this matter. The issues for determination in this judgement are: (i) whether on the pleadings and evidence the claimant is entitled to the reliefs he is seeking; (ii) whether the defendant has proved the counter claim. It is trite law that whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist. The burden of proof of establishing the terms of the contract of employment is on the claimant who wants judgement to be entered in his favour. The claimant as required has put in evidence his service contract (exhibit C1), resignation letter (exhibit C2), staff identity card (exhibit C3), letter of no objection (exhibits C17a, C17b & C19). It is the law that once a party asserts, he must prove the assertion. See Section 131 (1) & (2) of the Evidence Act 2011, Elegushi v Oseni [2005] 14 NWLR (Pt 945) 348. The claimant’s complaint is that the defendant refused to pay his salaries and allowances as agreed. In proof of this, he relies on the service agreement (exhibit C1) signed by him and the defendant. It is the law that when parties freely enter into a contract, they are bound by the terms of the contract. See Isheno V Julius Berger Nig Plc [2008] 6 NWLR (Pt 1084) 582 at 609, Hilary Farms Ltd VMV ‘Mahtra’[2007] 14 NWLR (Pt 1054) 210 at 230 – 231, A-G Nasarawa State V A-G Plateau State [2012] 10 NWLR (Pt 1309) 419 at 450. The contract of employment is exhibit C1 referred to as the service agreement. The agreement was made and executed between the parties on the 4th day of March 2013. The relevant clauses in the service agreement for purposes of this judgement are reproduced hereunder: EMPLOYMENT: The Company shall employ the Executive and the Executive shall serve the Company as a MD 83 Captain of the Company, with such duties and responsibilities as may be assigned to the Executive by the Chief Operating officer of the Company and as are normally associated with a position of that nature…” TERM OF EMPLOYMENT: The Executive’s employment by the Company under this agreement shall commence on the date of this agreement and subject to earlier termination pursuant to clause 7 shall expire after five (5) years from the date of joining in Nigeria.--- THE COMPANIES COVENANT To pay for air travel to Lagos Nigeria for employment and provide for air travel back to Alger, Algeria, on completion of this service agreement of 5 years. To provide suitable fully furnished shared accommodation in Nigeria during the duration of this service agreement on sharing basis. COMPENSATION Towards full compensation for all services rendered by the Executive to the Company under this Agreement, the Company shall pay as agreed an amount equivalent to USD 10,800 (US Dollars Ten Thousand Eight Hundred only) monthly. Local Allowance (LAR) of USD 750 (US Dollars Seven Hundred and Fifty only) paid monthly in Nigerian Naira equivalent to the company exchange rate.---- THE EXECUTIVES COVENANT For a period of Two Years (2) after the end of employment, the Executive shall not control, consult to be employed by any business in Nigeria similar to that conducted by the company----- RESIGNATION NOTICE: In the event, if Executive wants to terminate the Agreement before the expiry period, he shall be required to give 90 days notice to the Company, if however Executive is unwilling to give 90 days notice, he shall pay three months overseas allowance in lieu of notice period. It is settled law that parties to a contract are bound by the terms of the agreement entered Isheno V Julius Berger Nig Plc supra and it is not the duty of the court to alter the terms of the service agreement reached by the parties. In the exercise of its interpretation jurisdiction, courts are enjoined to construe a document in its ordinary and grammatical meaning without any colouration. Where specific things or persons are mentioned, those not mentioned are not intended to be included. See Obi v INEC [2007] 11 NWLR (Pt 1046) 449, Amaechi v INEC [2008] Vol. 158 LRCN 1. It is clear from the service agreement that the defendant employed the claimant as MD 83 Captain, and that the employment relationship commenced on the 4th day of March, 2013. I hold that the claimant became an employee of the defendant on 4th March 2013. The submissions of defence counsel that the claimant had not completed the statutory training until August 2013, and therefore ‘effectively joined’ the defendant in August 2013 goes against the express provision of the service agreement and does not hold water; neither does defence counsel’s submission that the claimant was still an employee of Arik in May 16, 2013. This submission by defence counsel would naturally lead to questioning the propriety of the defendant in employing the claimant and executing the service agreement when it knew that industry regulations/requirements prohibit this, and yet still went ahead to inform the Consular Officer at the Nigerian Embassy Algeria on March 6, 2013 (exhibit C11) that it had engaged the claimant as a Pilot. The converse is an attempt by the defendant to benefit from its own wrong doing which the court must not allow. See Akanni vs. Olaniyan [2006] 8 NWLR (Part 983) Page 531 at 536. The evidence is that the claimant had to undergo simulation training after he was employed and he needed to obtain certification and the approval of the NCAA to fly the defendant’s aircraft. There is no doubt that the defendant knew that the claimant did not have all the statutory requirements to fly its own aircraft, having flown a different aircraft with his previous employer. I find that the defendant knew that the claimant would undergo training and the relevant certification when it employed the claimant and executed the employment contract to commence on 4th March 2013. There is no clause in the agreement that states that payment of salaries is contingent on the claimant obtaining all the required certification required by the NCAA; nor is there any clause that states that no salaries will be paid the claimant until he completes the required training and obtains NCAA certification. The evidence reveals that after his employment, it was the defendant that kept on rescheduling the claimant’s training in Miami from April, to June, and then to August. There is no evidence that after the claimant was employed, and before he obtained the required certification, the defendant assigned him any other duties or responsibilities that he refused to carry out as stated in the Service Agreement. The evidence of DW is that the claimant was never paid a salary during the period of his employment with the defendant from March 2013 until he resigned in November 2013. The defendant appears to be telling the court that an employee is not to be paid his salaries and allowances during the period of mandatory training which in this case kept on being rescheduled by the defendant! The question is how was the claimant who was already in the employment of the defendant on March 4, 2013 to meet up with his financial responsibilities without a salary or allowances? I find that even after the claimant completed the training and obtained his certification in August 2013, the defendant still did not pay him his salary and allowances. The issue of frustration being raised by the defendant is merely an after thought. Its license by its own pleadings was revoked on October 6, 2013. Parties are bound by their pleadings. Why was the claimant denied his salaries for the period March to September when the defendant’s license was not revoked and it was still operating? The only probable reason is that the defendant did not wish to honour its obligations in the contract of employment despite the letters of demand and the call for amicable resolution by the claimant. I find that the claimant was forced to write a letter of resignation when he was not paid his salaries and allowances for the period March to November 2013. I hold that the claimant is entitled to his outstanding salaries as stipulated in the Service Agreement (exhibit C1) from 7th of March 2013 to 8th of November 2013 amounting to $86,400 (Eighty Six Thousand Four Hundred Dollars), and local allowances from 7th of March 2013 to 31st August of 2013, and 1st- 8th November, 2013 amounting to $4,500 (Four Thousand, Five Hundred Dollars). The total sum being $90,900 (Ninety Thousand, Nine Hundred Dollars), the Naira equivalent N15,175,755.00 (Fifteen Million, One Hundred and Seventy Five Thousand, Seven Hundred and Fifty Five Naira) at the exchange rate of N166.9500 to $l. The defendant is ordered to pay this sum to the claimant within 30 days. The claimant is seeking a declaration that the defendant’s refusal to grant him a letter of “No objection” is unlawful. The claimant’s evidence is that he was constrained to resign from the employment of the defendant because he was not paid his salary and allowances; and was offered another job but as a prerequisite he had to produce a letter of no objection from the defendant. The defendant has justified this refusal on the clause in restraint of trade contained in the “Executive Covenant” in the service agreement. It states that after the end of the employment, the claimant should not seek employment or be employed by any similar business in Nigeria. This is a restrictive covenant usually designed to stifle competition from ex-employees. The doctrine of restraint of trade holds that prima facie such agreements are void unless the employer can show it is reasonable. However, this clause has not been made an issue for determination by the claimant. The parties having agreed on this clause, it is not unlawful or spiteful for the defendant to refuse to issue such a letter. The claimant has made a claim for general damages of N3 million. General damages are the natural consequence of the wrongful act of the defendant. In this instance, there can be no doubt that the claimant has suffered a deprivation and hardship as a result of the wrongful action of the defendant in refusing to pay him his salaries and allowances. In the circumstances, the claimant is entitled to an award of general damages. I hereby award the sum of N500,000.00 to the claimant as general damages pursuant to section 19 (d) of the National Industrial Court Act 2006. All sums awarded are to be paid by the defendant within 30 days. Thereafter, the sums will attract interest at the rate of 15% per annum. Costs of N100,000.00 awarded the claimant. On the counterclaim, the sums being claimed by the defendant/counter claimant are in the realm of special damages which must be specially pleaded, particularised and strictly proved. This has not been done. There is no proof of the sum of N1,773,000.00 the defendant/counter claimant alleges it spent on the claimant’s simulation training and weekly allowance; neither is there any proof of the sum of N404,333.00 expended on the claimant’s pilot exams, medical examination, accommodation and utility charges. In any event, by the service agreement and the evidence of DW, it was the duty of the defendant to provide accommodation for the claimant. I hold that the counter claim has not been proved. It is hereby dismissed with costs of N100,000.00 awarded the claimant. Judgement is entered accordingly. ___________________________ Hon Justice O.A.Obaseki-Osaghae