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This action was initiated by the Claimant against the Defendants by means of a Complaint dated and filed on 8th April, 2011. The Claimant claims against the Defendants jointly and severally as follows: i. A DECLARATION that there exists two valid and subsisting Training Programme Bond Agreements dated 27th of February 2009 and October 11, 2010 respectively between the Claimant and the Defendant. ii. A DECLARATION that under the Training Programme Bond Agreement dated 27th of February, 2009, the Defendant is under an obligation to continue to offer consultancy services to the Claimant till April 19, 2012 when the Training Bond Agreement ceases to have effect by effluxion of time. iii. AN ORDER OF INJUNCTION restraining the Defendant from breaching or repudiating the Training Bond Agreements by disengaging his consultancy services from the Claimant or otherwise ceasing his consultancy services earlier than April 19, 2012 as agreed. OR in the alternative: iv. AN ORDER of this Honourable Court compelling the Defendant to pay to the clamant the sum of N12, 644,425.00 (Twelve Million, Six Hundred and Forty Four Thousand, Four Hundred and Twenty Five Naira Only) being the cost of the training sponsored by the claimant and for which the defendant has received benefits. Accompanying the Complaint were the Statement of Facts, List of Witnesses, List of Documents to be relied upon at the trial and copies of the Agreements entered into by the parties. It is apt to mention that the Claimant on the 22ndday of February, 2012 filed an amended statement of facts dated 8th April, 2011, further list of other documents to be relied upon and a host of other documents referred to as exhibits. This was after this Court had granted an order joining the 2nd Defendant as a party to the suit. The 1stDefendant on 20th March, 2012 filed its statement of defence and counter-claim of the same date. The statement of defence and counter-Claims was accompanied with a host of documents also referred to as exhibits. On the other hand, the 2nd Defendant’s statement of defence dated 30th May, 2012 was filed the following day along with the 2nd Defendant’s list of witnesses, list of documents to be relied upon and a host of exhibits. By way of response, the Claimant on the 1st day of June, 2012 filed an Amended Reply and Defence to 1st Defendant’s statement of defence and counterclaim dated 21st October, 2011 along with a further list of documents to be relied upon. In the same vein, the Claimant responded to the step taken by the 2nd Defendant by filing a reply to the 2nd Defendant’s statement of defence. The said reply to the 2nd Defendant’s statement of defence was dated 18th July, 2012. The witness statement on oath of Mrs Cynthia Mohammed, (Claimant’s witness) was dated and filed on 13th June, 2012, the same day. There was also an additional statement on oath of Cynthia Mohammed dated 19th July, 2012 filed along with an additional list of documents to be relied upon. There was also the further additional statement on oath of Cynthia Mohammed dated and filed on 14th July, 2013. The 2nd Defendant’s witness statement on oath was dated and filed on 14th September, 2012. It is also important to make reference to the 1st Defendant’s witness statement on oath dated and filed on October 12, 2012. This was followed by the 1st Defendant’s reply to the Claimant’s amended defence to counterclaim and 1st Defendant/Counter Claimant’s additional list of documents to be relied upon. Both processes were dated and filed on 24th October, 2012. Not done yet, on the 30th day of October, 2012, the 2nd Defendant filed the following processes: an amended statement of defence, 2nd Defendant’s amended witness statement of oath and 2nd Defendant’s additional list of documents; all of the same date. The 1st Defendant’s amended statement of defence and counterclaim was dated and filed on 24th September, 2013. I have painstakingly accounted for the foregoing steps taken by the parties to demonstrate the intensity of the exchange of pleadings between the parties. Hearing of the matter commenced on 29th September, 2011. Cynthia Mohammed, a lawyer and who is a Manager (Legal) with the Claimant testified for the Claimant. She was sworn on the holy bible. A summary of her oral evidence and depositions in her witness statements on oath is as stated below. The witness stated that as part of her duties, she renders legal advice, prepares and reviews contracts on behalf of the Claimant, and keeps custody of contractual agreements entered into by the Claimant. That the 1st Defendant was engaged by the Claimant as a Consultant to operate the Claimant’s aircrafts. She identified the contract between the Claimant and the 1st Defendant known as the Technical Crew Consulting Agreement (Aircraft Pilot). The document was tendered, admitted in evidence and marked as Exhibit A. It was stated that Exhibit A contains the terms of the assignments to be carried out by the 1st Defendant, the tenure, and the terms and conditions upon which the Claimant would sponsor the trainings required by the 1st Defendant for the performance of his assignments. The witness stated that the 1st Defendant attended two training programmes sponsored by the Claimant. She deposed to the fact that the terms of these trainings were reduced into written agreements. In this respect, two documents titled Training Programme Bond Agreement dated 27th day of February, 2009 and the one dated 11th day of October, 2010 were admitted in evidence and marked as Exhibits B and C respectively. It was the evidence of the witness that the Claimant expended a total sum of Twelve Million, Six Hundred and Forty Four Thousand, Four Hundred and Twenty Five Naira [N12, 644, 425.00] on the two trainings undertaken by the 1st Defendant which enabled the 1st Defendant to obtained license entitling him to fly and operate the Claimant’s aircraft type rating in Nigeria and anywhere in the world. The witness testified that before the 1st Defendant proceeded on the second training (Exhibit C), he wrote a letter dated 13th September, 2010 indicating that he did not wish to execute any training bond that would extend the duration of his employment beyond 31st May, 2011 stated in Exhibit A. She said that the Claimant responded to the said letter. The Claimant’s reply was dated 27th September, 2010. The Defendant’s letter of 13th September, 2010 and the Claimant’s reply dated 27th September, 2010 were admitted in evidence and marked as Exhibits D and E respectively. Also admitted in evidence were: • A letter dated 25th February, 2011 written by the 1st Defendant and addressed to the Claimant marked as Exhibit F. • The Claimant’s reply dated 21st March, 2011 marked as Exhibit G, and • Another letter written by the 1st Defendant dated 27th March, 2011 marked as Exhibit H. According to the witness, the 1st Defendant signed Exhibit C after he had received the Claimant’s letter dated 27th September, 2010. On the resumption of trial on 16th January, 2012, the witness was reminded that she was on oath. She adopted her three witness statements on oath. The three witness statements on oath were admitted in evidence as follows: • Claimant’s witness statement deposed to on 13th June, 2012 admitted in evidence and marked Exhibit I – I5. • Claimant’s witness statement deposed to on 19th July, 2012 admitted and marked Exhibit J – J1, and • Claimant’s witness statement on oath deposed to on 14th September, 2013 admitted in evidence and marked Exhibit K – K1. Other documents pleaded by the Claimant in its pleadings were also admitted in evidence and marked as exhibits. The witness in her statement on oath stated that by the terms of Exhibits B and C the 1st Defendant bonded himself to remain in the employment of the Claimant till April 19, 2012. But that the 1st Defendant would repay the full amount expended on training him in the event that he chose to leave his employment before the expiration of the terms of the training bonds. The witness stated that when the 1stDefendant indicated his desire to leave the employment of the Claimant before the expiration of the agreed time, the Claimant by a letter reminded him of his obligations under the training bond agreements. In her depositions, the witness stated that enquiries made showed that the 2nd Defendant employed the 1st Defendant and actually induced and procured the 1st Defendant to breach his obligations. The witness stated that the 2nd Defendant knew or could be presumed to know that the 1st Defendant was contractually bonded to the Claimant yet induced the breach of his obligations. Thus, the 2nd Defendant was said to have taken active steps to interfere with the subsisting agreements the 1st Defendant had with the Claimant. At paragraph 17 of her witness statement on oath, the Claimant’s witness deposed to the particulars of interference by the 2nd Defendant with the terms and conditions of the subsisting contracts between the Claimant and the 1stDefendant. The witness also deposed to the special damages claimed by the Claimant. In her additional witness statement on oath, the witness deposed to the fact that the training for which the 1st Defendant was sponsored by the Claimant referred to at paragraphs 5, 6 & 7 was the Initial Type Rating and not stimulator training. She stated that Initial Type Rating is a qualification that enables the pilot to operate the specified aircraft type and its benefit to the pilot is for a lifetime. She however, stated that stimulator training is a periodic refresher course/training on the initial aircraft type and that the lifespan of a stimulator training certificate its is six months. She stated that a pilot must attend stimulator training every six months as required by the Regulations of the Nigerian Civil Aviation Authority [NCAA]. It was stated by the witness that the NCAA does not require Airlines to sponsor pilots on stimulator training or any other training. That it is acceptable industrial practice to subject pilots to training bonds with respect to trainings sponsored by the Airlines. The Claimant’s witness stated that a pilot cannot fly an aircraft in the absence of a valid stimulator certificate. The witness testified that it is the responsibility of the pilot to ensure that he undergoes such trainings as may be required in order to have valid stimulator certificate. Under cross examination the witness reiterated that Exhibit A contains the terms and conditions of engagement between the Claimant and 1st Defendant. She said that the completion date of the 1st Defendant’s assignment by virtue of Exhibit A was May 31, 2011 provided he did not execute training bond. She agreed that the 1st Defendant was a pilot before joining the Claimant but that he could not fly ATR-42 aircraft owned by the Claimant. The witness stated that the Claimant also owns Bell 1900 D and ATR-72 types of aircrafts. The witness also stated that the 1st Defendant resigned his employment with the Claimant. It was stated that the 1st Defendant was yet to resign as at the time this suit was commenced. Responding to a question, she stated that the claimant had sought an order of this Court restraining the 1st Defendant from leaving his employment. But that the application was withdrawn before the date fixed for its hearing because the 1st Defendant had already resigned his employment. According to the witness, the amount contained in Exhibit S was not the total sum expended on training the 1st Defendant and that three persons were trained. She stated that where a pilot was to be sent on training, there must also be a Captain and a co-pilot. She stated that the co-pilot must repay the full amount expended because the training was usually done in pairs. She said that the 1st Defendant left the Claimant Company as a co-pilot and that stimulator training is usually for six months duration. While still being cross examined, the witness stated that as at the time the 1st defendant left the employment of the Claimant his stimulator license had expired and he was not eligible to fly the Claimant’s types of aircrafts. She stated that the 1st Defendant was issued a Certificate on the completion of the Initial Type Rating course sponsored by the Claimant. She stated that the claimant has a copy of the Certificate but that she has not seen the Certificate. She testified that the 1st Defendant stopped going to work when his simulator license expired in April 2011. The witness stated that the sum of 85, 550 Euros was spent by the Claimant on training the four people whose names appear on Exhibit P1. She said that the 1st Defendant was not paid his salary for March 2011. She maintained that the Claimant loses N2 Million (Two Million Naira) per day due to the exit of the 1st Defendant from the Claimant Company. She stated that the Claimant’s ATR-42 aircraft is a 48 seater which was used to plight the routes stated below: Ilorin-Abuja-Return; Ibadan-Abuja-Return; and Lagos-Ilorin-Return. She said that the Claimant’s aircrafts were routinely maintained as required by the Nigerian Civil Aviation Authority. She stated that the 1st Defendant worked for the Claimant for about twenty six months out of the agreed thirty six months. On the continuation of trial on 22nd March, 2013, the 1st Defendant, Mr. Oladeji Afolayan testified for himself as the DW1. He was sworn on the holy bible and described himself as a pilot who was unemployed at the material time. He said he deposed to a witness statement on oath on 12th October, 2012 and same was adopted as his evidence-in-chief in defence of the suit. The witness statement on oath was admitted in evidence and marked as Exhibit DW1 – DW5. A summary of the case of the 1st Defendant arising from his oral evidence and witness statement on oath is as follows. He stated that he joined the Claimant as a second pilot pursuant to a direct contract of employment on 17th December, 2007. He stated that his employment was converted to that of Technical Crew consulting Agreement (Air Craft Pilot) on 5th June, 2008. He stated that the duration of his employment pursuant to Article 3 of the Agreement was for three years effective from 1st June, 2008 to 31st May, 2011. He stated that under the Agreement, he had an option to renew his employment subject to terms and conditions to be negotiated by the parties. The DW1 stated that it is normal industry practice for airlines including the Claimant to sponsor consultant/pilots to attend ATR-42 simulator training in France. That the license issued after such training is valid for 6 months and enables the pilot to operate such aircrafts during the period of its validity. He testified that unlike what obtains in other airlines, the Claimant usually requires its pilots to execute bonds every six months when they are to proceed on recurrent training. He said that this was a ploy to indefinitely bond its pilots/consultants to its employment. He stated that the claimant sponsors the trainings under reference at an amount far above the cost of the courses. The DW1 stated that the last type rating license he obtained in October 2010 expired in April 2011 and made him ineligible to operate the Claimant’s types of aircrafts until he attended another training. That on 25th February, 2011 he gave the Claimant notice of his intention not to renew his contract of employment. He stated that such notice was not required under the contract of employment. He stated that he was not bonded to the Claimant until April 2012 nor did he resign his employment as alleged. He insisted that the contract of employment expired on 31st May, 2011. He testified that the Claimant could not have suffered any financial loss due to his exit since he gave the Claimant a notice of 3 months of his intention not to renew his contract of employment. He said that the claimant did not pay his salaries from March – May 2011. The DW1 denied that the 2nd Defendant induced him to breach his contractual obligations to the Claimant but that the allegation was intended to instigate the 2nd Defendant to terminate his employment. The DW1 stated that the 2nd Defendant placed him on suspension immediately it received the claimant’s letter to it dated 29th September, 2011. While giving oral evidence, the DW1 through his counsel tendered bundle of documents in evidence. These documents were admitted and marked as exhibits. It is not necessary to identify these documents/exhibits one by one. However, reference would be made to any specific exhibit as the need may arise in the course of this judgment. During cross examination, the DW1 stated that as at the time he took up employment with the Claimant, he agreed that his license would be valid at all times. He agreed that by NCAA Regulations, a pilot has the responsibility to ensure that his flying license remains valid for as long as he desires to operate an aircraft. The witness stated that there was no express agreement that the Claimant would be responsible for type rating him. He said he signed two training bonds; one in 2009 and the other in 2010. He agreed that he understood what he signed in 2009 to be a routine of the Claimant. The DW1 stated that he was under pressure when he signed the training bonds. He stated that Exhibit M was the first Agreement he signed with the Claimant and he had obligation to fly aircrafts under this Agreement. He replied that he actually flew an aircraft during the pendency of the Agreement. He agreed that Exhibit A replaced Exhibit M. He confirmed that he did not fly any aircraft in 2008 because he was not type rated on any of the Claimant’s aircrafts. He stated that the Claimant was sanctioned because it had 28 safety issues when its Certificate expired but was not renewed by the NCAA. He said he could not remember the date when the Claimant was sanctioned by the NCAA. The DW1 stated that there were times when the Claimant’s aircrafts were grounded but that no public notices were issued concerning the grounding of the aircrafts. He said he did not submit any written report to the NCAA regarding the safety issues he observed for fear of the punitive measure that the Claimant might have imposed on him. He identified the withdrawal of his license as one of such punitive measures. He stated that he was not aware that the Claimant was punished by the NCAA for breach of its regulations. He affirmed that there was no report that any of the Claimant’s aircrafts crashed but that there were incidents. The witness agreed that he was not obligated to sign the training bonds he executed with the Claimant. He stated that he told the 2nd Defendant that he was under no obligation to the Claimant as at the time he was being employed by the 2nd Defendant. The witness affirmed that his employment with the 2nd Defendant was suspended because of the letter written by the Claimant to the 2nd Defendant. He stated that he was not induced by the 2nd Defendant to join it. It is now appropriate to turn to the evidence of the witness for the 2nd Defendant. Mrs Ronke Ajala testified as DDW for the 2nd Defendant. On oath, she described herself as an Assistant Manager (Human Resources) in the employment of the 2nd Defendant. She identified and adopted her witness statement on oath deposed to on 3oth October, 2012 as her evidence before the Court. The witness statement on oath was tendered, admitted in evidence without objection and marked as Exhibit DDW1 – DDW5. Let me quickly give a summary of her evidence before the Court. According to the DDW, it is a requirement of the NCAA for employers in the industry to sponsor their pilots to attend type rating stimulator training in France. She stated that the Claimant by its letter dated September 27, 2010 fraudulently induced the 1st Defendant to execute training bonds by giving the impression that the training bonds were mere evidence of commitment and good faith but not a debt. She maintained that the 1st Defendant was under economic duress as a result of which he signed the training bond programme dated October 11, 2010. She deposed to the fact that the 1st Defendant was not induced by the 2nd Defendant but was employed as a Senior First Officer by a letter dated May 4, 2011. The DDW stated that the 2nd Defendant suspended the 1st Defendant by its letters dated 29th November, 2011 and 23rd February, 2012 for failing to disclose vital information. She also informed the Court that the 1st Defendant resigned from his employment with the 2nd Defendant by a letter dated 14th March, 2012. It was further stated that as at the time the 1st Defendant was employed, the 2nd Defendant did not know of any subsisting contract between the Claimant and the 1st Defendant. It was therefore stated that the 2nd Defendant did not induce, persuade or procure the 1st Defendant to breach his obligations to the Claimant. Finally, the DDW stated that the 2nd Defendant is not responsible for any loss incurred by the Claimant and is therefore not liable to pay the claimant damages in the amount of N48,000,000.00 (Forty Eight Million Naira Only) or any sum at all. The DDW tendered bundle of documents in evidence and same were admitted as exhibits by the Court. Under cross examination the DDW stated that he had never read NCAA Regulations and therefore does not know whether a pilot can sponsor himself to attend stimulator training. The DDW stated that the 2nd Defendant did not know what transpired between the Claimant and the 1st Defendant until the letter from the Claimant was received by the 2nd Defendant. She said that the 2nd Defendant got to know that the 1st Defendant was defrauded by the Claimant through the documents shown to it by the 1st Defendant. The DDW stated that she had been involved in the recruitment of new staff. He agreed that reference check is crucial in recruiting a new staff to ascertain whether the person is fit and proper for the job. The witness stated that the 2nd Defendant did not do reference check on the 1st Defendant before employing him. She deposed to the fact that where it is discovered that a person who has been employed has issues with his or her former employer or the police, such an employee would be placed on suspension. In answer to a question, the DDW agreed that one of the reasons for asking employees to submit references would be to ascertain whether the employee has outstanding obligations to a former employer. She stated that the 1st Defendant was suspended when it was discovered that he lied and that if the 2nd Defendant had carried out reference check on the 1st Defendant it would have avoided this suit. He testified that the 2nd Defendant would not have employed the 1st Defendant if it had known that the latter was under obligation to the Claimant. She denied knowing that the 2nd Defendant has assumed the obligations the 1st Defendant is owing to the Claimant. The DDW stated that the 2nd Defendant was not aware of a pending case between the Claimant and the 1st Defendant as at the time it employed the 1st Defendant. She responded that the 1st Defendant had been in the employment of the 2nd Defendant for about 4 months before the pending case between the Claimant and the 1st Defendant became known to it. At this juncture, I would like to consider the written addresses settled by counsel for the parties starting with that of the 1st Defendant. In his Final Written Address of 10th October, 2013, the 1st Defendant distilled five issues for determination as follows: 1. Whether or not the completion date of 1st Defendant’s consultancy agreement with the Claimant under the Technical Crew Consultancy Agreement (Exhibit A) is 31st May, 2011. 2. Whether there was a renewal by the 1st Defendant of his three years fixed term contract of employment (Technical Crew Consultancy Agreement (Exhibit A) with the Claimant. 3. Whether the training bonds executed by the parties are enforceable against the 1st Defendant after the expiration of his consultancy assignment which was determined by effluxion of time on 31st May, 2011. 4. Whether the 2nd Defendant induced a breach of contract between the Claimant and the 1st Defendant. 5. Whether given the state of pleadings and evidence led, the Claimant is entitled to damages. ISSUES Nos. 1 & 2 It was submitted that the creation and formation of contract of employment is subject to the general rules of contract citing the case of NWOBOSI V. A.C.B. (1995) 6 NWLR (Pt. 404) 658. It was also canvassed that every contract of employment is regulated by agreed terms and the Court that is called upon to interpret the terms of the contract considers the intention of the parties by examining the words used since the words express the intentions of the parties. Learned counsel for the 1st Defendant cited the following cases: -LONGE V. FBN (2010) 6 NWLR (Pt. 1189) 1; -PTF V. WPC LTD. (2007) 14 NWLR (Pt. 1055) 478 at 495, Per Rhodes Vivour, JCA (as he then was); -UNION BANK NIG. LTD. V. OZIGI (1994) 3 NWLR (Pt. 333) 385; and -MOMOH V. CBN (2007) 14 NWLR (Pt. 1055) 504. Learned counsel for the 1st Defendant submitted that Exhibit A sets out the terms and conditions of the employment of the 1st Defendant and the manner of determining the contract provided for in Article 14 thereof. Specifically, it was argued that Article 3 of Exhibit A stipulates the duration of the contract by stating that: “This agreement shall be operative for a period of three (3) years with effect from 1st June, 2008 to 31st May, 2011 with an option to renew subject to terms and conditions to be negotiated by the Parties.” It was therefore submitted that Exhibit A is definite on the duration of the contract of employment under consideration. Learned counsel also referred to Article 13 of Exhibit A. I have endeavoured to reproduce Article 13 in the manner the 1st Defendant’s counsel did it in his written address as follows: “Subject to the satisfaction of the Pre-Assignment Conditions set forth in Article 6 herein, the Consultant shall provide the Consulting services for a three years period (the “Assignment Period”), subject to approval of Consulting qualification by NCAA. The first working day under the Assignment Period shall be the Reporting Date. Consulting will be entitled to earn only base pay during training until date of successful check-out on type. The last working day under the assignment period shall be the Completion Date.” It was further submitted that Article 1 of Exhibit A defines “Completion Date in the following manner: “Completion Date means that day where the Consultant departs the Base Residence following the expiration of his Assignment Period under this Agreement.” It was submitted that the case of the Claimant is that the 1st Defendant breached the bond agreements by indicating his intention to stop coming to work with effect from 31st May, 2011. Reference was made to the fact that the Claimant commenced this action on the 8th day of April, 2011 seeking the reliefs earlier reproduced against the 1st Defendant. Learned counsel submitted that the sole witness for the Claimant admitted that the 1st Defendant was still in the employment of the Claimant as at the time this action was instituted. Leaned counsel for the 1st Defendant contended that his client completed his consultancy assignment in line with the terms of Exhibit A. It was further submitted that the 1st Defendant did not resign his employment with the Claimant on or before 31st May, 2011. It was equally submitted that the contract of employment was not terminated by the Claimant on or after 31st May, 2011 as such claim is unsupported by the pleadings and evidence before the Court. Learned counsel referred to paragraphs 11, 12 and 13 of the Amended Statement of Claim in support the view that the Claimant did not plead that the 1st Defendant breached the terms of Exhibit A. Let me take the liberty to quote the averments at paragraphs 11, 12 and 13 of the Amended statement of facts: 11. “While the Bond Agreement is still subsisting, the 1st Defendant indicated that he would be leaving the services of the Claimant without serving out the period he had agreed to continue to render services to the Claimant. The claimant shall found and rely on the letter of the Defendant dated February 25th, 2011 and addressed to the Claimant during the trial of this suit. 12. The claimant responded by reminding the 1st Defendant of his obligation under the Bond Agreement and demanded that he either honours his obligations under the Bond agreement or refund the full cost of the training sponsored by the Claimant in accordance with the agreement between both parties. The Claimant shall rely on its letter dated 21, 2011 (sic) during the trial of this suit. 13. The 1st Defendant has manifested a clear intention to breach the Bond Agreements voluntarily entered into with the Claimant from May 31, 2011 when he communicated his intention to terminate all relationship with the Claimant. The Claimant shall rely on the 1st Defendant’s letter dated 27th March, 2011. In the said letter, the defendant also denied any obligation to repay the cost of the training borne by the Claimant upon his unilateral disengagement.” Thus, it was submitted that the Claimant having failed to plead that the 1st Defendant breached the terms of Exhibit A, he cannot lead evidence along that line as such evidence will go to not issue. Counsel argued that a party can only get what he claims if he makes out his case on the strength of his pleadings and evidence led thereon. On this point, learned counsel cited the following cases: - EMEGOKWE V. OKADIGBO (1973) 4 SC. 113, 117; - WOLUCHEM V. GUDI (1981) 5 SC. 291 at 320; - GEORGE V. DOMINION FLOUR MILLS LTD. (1963) 1 All NLR. 711. - OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599; - EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (Pt. 162); and - BABATUNDE AJAYI V. TEXACO NIG. LTD & ORS (1987) SC. Leaned counsel urged the Court to resolve issues 1 & 2 in favour of the 1st Defendant. ISSUE NO. 3 Learned counsel submitted that the Bond Agreements (Exhibits B & C) are not enforceable against the 1st Defendant after the expiration of the 3 years provided for in Exhibit A. learned counsel argued that a training bond will not be enforceable where it is unreasonable and unconscionable. It was contended that the compulsory employment period mentioned in the bond must be reasonable while the question of reasonableness is determined on a-case-by-case basis. It was contended that the Court must take into account the circumstances of the case, the penalty and compulsory employment period which must not be unreasonable. On this proposition of law, learned counsel cited the Indian cases of NANDGANI SIHORI SUGAR COMPANY LTD. V. BADRINATH DIXIT & ORS AIR 1991 SC. 1525 and GUJARAT BOTTLING CO. LTD. V. COCACOLA COMPANY, AIR 1995 SC. 2372. Learned counsel argued that where a bond agreement contains penalty or compulsory employment period considered too exorbitant from the view point of the employee, it would be regarded as unreasonable. It was further submitted that a court can only award compensation only if it determines that the employer has incurred loses. Learned counsel however, argued that the employer must prove that it has incurred loses to the extent of its claim. In the event of a breach, the court is not bound to award the quantum of compensation stipulated in the bond agreement. Rather, it may award a lesser amount as was the case in the Indian case of SICPA INDIA LIMITED V. SHRI MANAS PRATIM DEB, MANU/DE/6554/2011 where the employee worked for 2 out of the three years stipulated in the contract of employment. The Court awarded INR 22, 532 instead of the INR 200,000 stated in the bond agreement. The Court divided the INR 67,595 incurred by the plaintiff into three equal parts for three years period and awarded the sum of INR 22,532 as reasonable compensation against the employee who left employment a year before the agreed term. The following Indian cases were also cited in support of the above statement of the law that a court does not have to grant the full amount stated as penalty for default in a bond agreement: - CENTRAL INLAND WATER TRANSPORT CORPORATION V. BROJONATH GANGULY (1986) IILLJ171 SC.; - NIRANJAN SHANKAR GOLIKARI V. THE CENTURY SPINING; and - MANUFACTURING COMPANY LTD. V. LEO THOMAS (4) KLT 797. Learned counsel submitted that both Exhibits B & C are not enforceable against the 1st Defendant for seeking to compel him to remain in the employment of the Claimant longer than the period stipulated by Exhibit A. It was argued that it is unconscionable for the Claimant to seek to enforce the Training Programme Bond Agreement (Exhibit C) against the 1st Defendant. It was submitted that the Claimant is estopped from enforcing Exhibit C in the face of its assurance to the 1st Defendant in Exhibit E that the same did not amount to a debt but a show of commitment and good faith by the parties. Learned counsel further submitted that the Claimant should not be allowed to approbate and reprobate at the same time on whether or not the penalty stipulated in Exhibit C amounts to a debt. He cited the cases of MEZU V. C. & C. B. (NIG.) (2013) 3 NWLR (Pt. 1340) 188 at Pp. 206, 213 and 219, Per Chukwuma-Eneh, JSC; and TUKUR V. UBA (2013) 4 NWLR (Pt. 1343) 90 at 136. It was the contention of learned counsel for the 1st Defendant that the training bond agreements are not enforceable as there was no meeting of the minds between the parties on the issue of whether or not the amounts stipulated in the training bond agreements constitute financial obligations on the 1st defendant after the expiration of his contract of employment. Learned counsel submitted that the 1st Defendant utilized the licenses obtained from the training programmes for the benefit of the Claimant. It was further submitted that the last of such licenses expired in April 2011. It was therefore contended that having utilized the licenses for the benefit of the Claimant, it would be unreasonable and unconscionable to hold that the bond agreements bonded the 1st Defendant to the Claimant beyond the period stated in Exhibit A. It was submitted that by virtue of paragraphs 4(b) of each of Exhibits B & C resignation or termination are the ways by which the 1st Defendant could determine the contract of employment to be liable to pay the full cost of the training. Learned counsel referred to paragraph 14.1 of Exhibit A, which states that: “…the Consultant will remain liable to the airline for outstanding amount of his training bond with the Airline and any other financial obligations, which the Consultant may have to the airline.” It was submitted that the 1st Defendant neither resigned nor terminated his appointment but that the contract of employment expired by effluxion of time. Learned counsel argued that Article 5.4 of Exhibit A and Article 8 of Exhibit M – M3 do not create continuous obligations on the parties which supersede the period stipulated in Exhibit A. It was argued that Article 8 of Exhibit M-M3 is of no relevance to the determination of the relationship between the parties. In support of his position, counsel referred to Article 23.1 of Exhibit A which states that: “This Agreement together with its Schedules constitute the entire agreement between the Parties in relation to the subject matter of this Agreement and supersede all previous proposals, agreements and other written and oral communication in relation hereto. The parties acknowledge that there have been no representations, warranties, promises, guarantees or agreements, expressed or implied, except as set herein.” It was also submitted that Article 5.4 of Exhibit A does not create a continuous obligation as pleaded by the Claimant. The Article provides that: “In consideration of the Airline’s sponsorship of the Consultant’s aircraft type rating renewals and any other training programme relevant to the Consultant’s duties, the Consultant shall sign a Training Bond, which will bind the consultant to the Airline for a period stipulated by the Airline.” It was argued that even if the 1st Defendant had breached the terms of his engagement, what the Claimant would be entitled to would be a pro-rated amount of the training fee calculated on the basis of the length of time the 1st Defendant worked for the Claimant and the value of the services he rendered. On this point, counsel relied on the case of SICPA INDIA LIMITED V. SHRI MANAS PRATIM DEB (supra). Learned counsel further submitted that the Claimant’s contention that the defendants interfered with the terms of Exhibit M-M3 (Direct Service Agreement) dated 2nd May, 2007 is unfounded in view of Article 23.1 of Exhibit A earlier quoted. It was therefore submitted that no cause of action could arise from Exhibit M-M3 which was long dead and buried. ISSUE NO. 4 The totality of submissions made by learned counsel was that the state of pleadings and evidence led before the court did not demonstrate that the 2nd defendant induced the 1st defendant to breach his obligations to the Claimant. ISSUE NO. 5 Learned counsel submitted that a party who sustains loss arising from breach of contract is as far as money can do entitled to be placed in the same situation with respect to damages as if the contract had been performed. See ROBINSON V. HARMAN (1848) 1 Ex. 850 at 855. Learned counsel also referred to the succinct statement of law espoused by Alderson b in HADLEY V. BAXENDALE (1854) 9 Exch 341 thus: “Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such a breach of contract should be such as may fairly and reasonably be considered as either arising naturally, i.e., according to the natural course of things from such breach of contract itself, or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach. If special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract which would reasonably contemplate would be the amount of injury which would ordinarily follow from such a breach of contract under the special circumstances so known and communicated. But, on the other hand, if these special circumstances are wholly unknown to the party breaking the contract, he, at the most could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract.” Learned counsel contended that the above dictum has received the approval of the Supreme Court in a number of cases. It was argued that the parties had contemplated the probable consequence of any such breach, hence they have agreed and provided for the amounts payable in the event of such breach in both Exhibits B & C. It was submitted that the amount recoverable by the innocent party herein cannot exceed the sum provided for in Exhibits B and C. Learned counsel cited the case of OSUN STATE GOVERNMENT V. DALAMI NIG. LTD. (2007) 9 NWLR (Pt. 1038) 66 at Pp. 86 & 94. It was further submitted that the Claimant failed to mitigate his loses despite the fact that he was given enough time vide Exhibits F, G, H, DW1 and DWC to prepare for the exit of the 1st Defendant. It was further submitted that the Claimant was not short of pilots as at the time the 1st Defendant exited because the Claimant had between 8-10 pilots at the time. And that the 1st Defendant was ineligible to fly the Claimant’s types of aircrafts as at the time he left the employment of the Claimant as his license had expired. On the counter-claim, he submitted that his client is entitled to be paid his salaries from March – May 2011 based on the unchallenged evidence before the Court. Learned counsel for the 1st Defendant urged the Court to dismiss case of the Claimant and grant the reliefs sought in the counter-claim. It is now appropriate to consider the final written address of the 2nd Defendant dated and filed on 27th September, 2013. Four issues were distilled for determination in the said final written address settled by AkinwaleIrokosu, Esq., as follows: 1. Whether the 2nd Defendant induced the 1st Defendant to breach his contracts with the Claimant” Alternatively: “Whether the contract of employment between the Claimant and the 1st Defendant was subsisting when the latter was offered employment by the 2nd Defendant.” Learned counsel submitted that the 2nd Defendant did not induce the 1st Defendant to breach his contract with the Claimant. It was argued that by the combined effect of Exhibits F & H (letters addressed by the 1st Defendant to the Claimant), and the evidence of the Claimant’s only witness, the 1st Defendant had manifested his intention to leave the Claimant Company ever before he established any communication with the 2nd Defendant. In support of his submission, learned counsel also referred to the averments at paragraphs 12 & 14 of the Claimant’s witness statement on oath where the Claimant’s witness deposed to the fact that the 1st Defendant had indicated his intention to leave the employment of the Claimant even when the Bond Agreement was still subsisting. Learned counsel submitted that available evidence shows that the 1st Defendant left the Claimant’s services in April, 2011 while he was offered employment by the 2nd Defendant on 4th May, 2011 as per Exhibit DDW8. Learned counsel submitted that the Black’s Law Dictionary, Ninth Edition, (Thomas Reuters) 2009 at page 845 defines “inducement” as” “Inducement is the act or process of enticing or persuading another person to take a certain course of action.” It was also submitted that the Supreme Court laid down the ingredients of inducing or procurement of breach of contract in the case of ALADE V. ALIC (NIG.) LTD. (2010) 19 NWLR (Pt. 1226) 111, particularly at 127, Paras. E – G where the Court, Per Galadima, JSC, held as follows: “It is trite law that a person who is not a party to a contract cannot be held liable on it, except where he instigated the breach. In this case, the 2nd Respondent, though not a party to the contract could be held jointly liable in damages with the 1st Respondent for instigating the 1st Respondent’s breach of the partnership agreement with the appellant. If the breach was masterminded and instigated by the 2nd Respondent.” The Court further held that: “The appellant has the burden to prove the allegation of the 1st Respondent’s breach and also that the 2nd respondent masterminded the said breach.” Reference was also made to the book, Nigerian Labour Law, (Ogbomosho: Emiola Publishers Limited, 2008), 4th Edition, by Professor Emiola at pages 544-545 where the author lists the conditions that must be established to show that a party is guilty of inducing another to breach a contract of employment. The factors are that: i. There is a valid and subsisting contract of employment; ii. The 3rd party must be aware of the existence of the said valid and subsisting contract of employment; iii. Intention and the act of inducing the breach and retaining the service of the employee; iv. The party continues to retain the services of the employee of another after due notice of prior enforceable contract has been given to him; v. The actual occurrence of the breach; and vi. Damages caused by the breach. It was submitted that no evidence was placed before the Court to show how and when the 1st Defendant was induced by the 2nd Defendant. Also, no evidence has been adduced to show that the 2nd Defendant retained the 1st Defendant after the Claimant’s letter of September 28, 2011 (Exhibit L) to the 2nd Defendant on the issue. On the other hand, it was submitted that the 2nd Defendant adduced evidence that it suspended the 1st Defendant when it was notified by the Claimant. Reference was made to the letters of suspension (Exhibits DDW10 and DDW11). It was submitted that the 2nd Defendant stated on oath that he was not induced by the 2nd Defendant. And that the 2nd Defendant’s testimony that it was not aware of any subsisting contract of employment between the Claimant and the 1st Defendant was corroborated by the 1st Defendant’s oral testimony under cross examination. Learned counsel submitted that evidence pointing to the fact that the 1st Defendant left the employment of the Claimant before he was offered employment by the 2nd Defendant remains unchallenged by the Claimant, and requires no further proof. The following cases were cited in support of this principle of law: - IWUKE V. UNION BANK PLC (2009) 10 NWLR (Pt. 1148) 1, particularly at p. 28; - OKAFOR V. DUMEZ (NIG.) LTD. (1998) 13 NWLR (Pt. 580) at 88; and - SHAGARI V COP (2007) 5 NWLR (Pt. 1027) 272, particularly at 295. Learned counsel also referred to section 123 of the Evidence Act 2011 which provides as follows: “No fact need to be proved in any civil proceeding which the parties to the proceedings or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands or which by any rule or pleading in force at the time they are deemed to have admitted by their pleading...” On the whole, it was argued that the Claimant has failed to prove that the 2nd Defendant induced the 1st defendant to breach his contractual obligations to the Claimant. ISSUE NO. 2 “Whether the contract of employment between the Claimant and the 1st Defendant was subsisting when the later (sic) was offered employment by the 2nd Defendant.” It was submitted that as at the time the 1st defendant was offered employment by the 2nd Defendant, the contract of employment between the Claimant and the 1st Defendant had been repudiated by the Claimant. Learned counsel submitted that the 1st Defendant pleaded and gave evidence that his salaries for the months of March to May 2011 were not paid. It was argued that the evidence of the 1st Defendant in this respect was admitted by the Claimant’s witness during cross examination. The payment of salaries, it was argued is central to the contract of employment. On this, counsel referred to the opinion of the learned author, Oladosu Ogunniyi in his book, Nigerian Labour and Employment Law in Perspective, Second Edition, (Folio Publishers Limited, 2004) at page 67 where he argues that: “As is generally accepted, the most significant consideration which an employer may give to an employee in return for work performed or rendered to the employer is the employee’s monetary remuneration in terms of salaries and wages in legal tender such as cheque, cash or postal orders… It was therefore submitted that the non-payment of the salaries of the 1st Defendant from March – May 2011 contrary to Article 11 of Exhibit A amounted to a breach of a fundamental term touching the root of the contract which gave the 1st Defendant the option of repudiating the contract of employment. On this point, counsel cited the case of CHATTER HOUSE CREDIT CO. LTD. V. TOLLY (1963) 2 QB 683 where it was held thus: “No more than a convenient shorthand expression of saying that a particular breach or breaches of contract by one party is or are such as to go to the root of the contract which entitles the other party to treat such breach or breaches as repudiation of the whole contract.” Also cited and relied upon was the case of YADIS (NIG.) LTD. V. G.N.C. LIMITED (2007) 14 NWLR, page 584, particularly, at 609, Paras. B-C where it was held as follows: “It is clear that Clause © is a condition in the insurance policy a breach of which gives the aggrieved party an excuse for non-performance of his side of the bargain or contract.” It was submitted that the contract of employment was repudiated by the 1st Defendant because of the breach of a fundamental term by the Claimant. Flowing from the above submissions, learned counsel argued that the 2nd Defendant could not have induced breach of a non-existing contract of employment since it offered the 1st Defendant employment after the contract had been repudiated. ISSUE NO. 3 “Whether the 1st Defendant was induced into executing the training bond agreement dated 11th October, 2010, by fraud.” It was submitted that the 1st Defendant by his letter dated 13th September, 2010 (Exhibit DDW12) indicated his unwillingness to enter into any bond agreement that would extend beyond the period stated in Exhibit A. It was however, submitted that the 1st Defendant changed his mind after the representation made to him by the Claimant in Exhibit DDW13. He adopted the definition of the word “fraud” as defined by Black’s Law Dictionary earlier referred to. Still on the issue of fraud, learned counsel cited the case of AFEGBAYI V. A.G. EDO STATE (2001) 14 NWLR (Pt. 733), P. 425, particularly at 464, Paras. F-G., where the Supreme Court, Per Ayoola, JSC held thus: “Turning now to the meaning of “Fraud” in connection with representations, it is firmly settled that whenever a man makes a false statement, which he does not actually or honestly believes to be true, that statement is, for purposes of civil liabilities, as fraudulent as if he had stated that which he did not know to be true, or knew or believed to be false. So, in Derry V. Peek (1889) 14 A.C. at 337, H. L. at 374, Lord Herschell in the judgment of the House of Lords succinctly stated that fraud is proved when it is shown that a false representation has been made by the representor (1) knowing, or (2) without belief in its truth, or (3) recklessly careless whether it be true or false; the case being but an instance of the second. A fraudulent misrepresentation, whereby the representor has induced the representee to alter his position by entering into a contract or transaction with the representor confers the right to maintain action for damages, or repudiate the contract or transaction. In such a case, the representee may institute proceedings for the rescission of the contract or transaction. He may also setup the fraudulent misrepresentation as a defence instituted (sic) for the direct or indirect enforcement of the contract or transaction.” [underlining supplied].” Learned counsel argued that the 1st Defendant relied on the representation that the training bond would not amount to a debt. It was submitted that the Claimant having fraudulently induced the 1st Defendant into executing the Training Bond Agreement (Exhibit C), the said Exhibit C is vitiated. It was argued that fraud vitiates any contract in which it is found. On this point, learned counsel cited the Court of Appeal case of F.A.T.B. LTD. V. PARTNERSHIP INV. CO. LTD. (2001) 1 NWLR (Pt. 695) 517 at 53. As earlier canvassed by the 1st Defendant, the 2nd Defendant’s counsel submitted that the Claimant is estopped from reneging on its representation contained in Exhibit E addressed to the 1st Defendant. ISSUE NO. 4 “Whether the 2nd Defendant caused the loss claimed by the claimant.” It was the contention of learned counsel that neither the 1st Defendant nor the 2nd Defendant was responsible for the losses allegedly suffered by the Claimant because the 1st Defendant’s was no longer eligible to fly the Claimant’s type of aircraft as at the time he left his employment. It was submitted that the 1st Defendant’s testimony that his type rating License which entitled him to operate the Claimant’s type of aircraft (ATR-42) had expired when he left the Claimant’s services was not controverted. Indeed, it was submitted that this piece of evidence was admitted by the Claimant’s witness during cross examination. It was submitted that the implication of this scenario was that even if the 1st Defendant had remained in the employment of the Claimant during the period the loss was allegedly incurred, he would have been ineligible to operate the aircraft and the Claimant would still have incurred the loss. It was the contention of learned counsel that the object of contract damages is to put the plaintiff in the position he would have been had the contract been satisfactorily performed. Hence, it was argued that to award special damages to the Claimant would put it beyond the position it would have been if the 1st Defendant had remained in its employment. Learned counsel further contended that the Claimant failed or neglected in its duty to mitigate its alleged loss by not looking for a replacement for the 1st Defendant even when the latter had notified the former of his intention not to renew his contract of employment. On the duty of the Claimant to mitigate his loss, learned counsel cited the cases of ETCO NIGERIA LTD & ANOR V. GOODWILL & TRUST INVESTMENT LTD. (2011) 3 NWLR (Pt. 1234) 302 at 319, Paras. C-D., and also CBN V. BECKITI CONSTRUCTION LIMITED (2011) 5 NWLR (Pt. 1240) 203 at 208 where the Court held as follows: “A party claiming damages has an onerous duty of taking reasonable steps to mitigate the loss consequent upon the breach and debars him from claiming any damages which is due to his negligence.” The Court was urged to hold that the Claimant is not entitled to damages as such could not have flown from the alleged inducement, and that the Claimant failed to mitigate his loss. In its Additional Final Written Address, the 2nd Defendant argued that the Claimant has no cause of action against it because the terms and conditions of the Direct Service Agreement dated 2nd May, 2007 ceased to exist once Exhibit A was executed. It was further submitted that one cannot induce a breach of the terms of a non-existent contract. On this point, the case of BEST (NIG.) LTD. V. BLACKWOOD HODGE (NIGERIA) LTD. & ORS (supra) was cited. On the meaning of cause of action, learned counsel referred to the case of SAVAGE & ORS V. UWECHA (1972) 1 All NLR (Part 1) 251 at 257. It was argued that given that Exhibit M-M3 had ceased to exist between the Claimant and the 1st Defendant, no cause of action could flow from alleged interference with its terms and conditions. Learned counsel invited the Court to dismiss the claim of the Claimant. On its own part, the Claimant distilled 4 issues for determination in its final written address as follows; ISSUE NO. 1 “Whether the Training Bonds (Exhibits B & C) constitute a valid and enforceable contract and if this is in the affirmative, whether the 1st Defendant by his resignation was not in breach of the Technical Crew Consulting Agreement and Training Bonds entitling the Claimant to remedy.” Arguing the above issue, learned counsel submitted that both the Claimant and the 1st Defendant who were and are still of full capacity executed Exhibits A, B and C. Learned counsel submitted that the Agreements were not vitiated in any way. It was contended that the 1st Defendant under cross examination admitted that he understood the contents of the agreements. It was therefore submitted that Exhibits A, B and C are valid and binding on the parties and the Court has a duty to enforce the intention of the parties arising from the Agreements. Learned counsel further submitted that Exhibit A executed by the parties in its Article 5.4 envisaged that the contract duration of 3 years contract term could be further extended where the parties agreed to execute training Bonds. It was argued that Exhibit A cannot be read alone but in conjunction with Exhibits B & C in view of Article 5.4 inserted in to Exhibit A by the parties. It was therefore submitted that by the combined effect of both Exhibits B & C the 1st Defendant is contractually bonded to the services of the Claimant beyond May 31, 2011 stipulated in Exhibit A. In other words, the contractual relationship between the parties did not expire on 31st May, 2011 as posited by both the 1st & 2nd Defendants. On the sacred duty of courts to enforce the intention of contracting parties as could be garnered from the agreement between them, counsel cited the following cases: - BILANTE INTERNATIONAL LIMITED V. NDIC (2011) 15 NWLR (Pt. 1270) 407 at 436, Paras. D-F; - BFI GROUP CORPORATION V. B.P.E. (2012) 18 NWLR (Pt. 1332), Pp. 209; 238 Para. H -239 Para. B; and - BEST (NIG) LTD. V. BLACKWOOD HODGE (NIG) LTD. & 2 ORS (2011) 5 NWLR (Pt. 1239) 95 at 117, Para. D, where the Supreme Court, Per Fabiyi, JSC held that: - “Parties are bound by the terms agreed to in a contract. If the conditions for the formation of a contract are fulfilled by the parties thereto, they will be bound. It is not the function of the court to make contract for the parties or rewrite the one which they have made. See UBN v. Ozigi (1994) 3 NWLR (Pt. 333) pg. 385 at 404; Oyenuga v. Provisional Council of the University of Ife (1965) NMLR 9.” On the duty of the Court to decipher the intention of the parties to a contract by reading and construing all the documents which show the intention of the parties, learned counsel cited the Court of Appeal case of COOPERATIVE DEVELOPMENT BANK V. EKANEM (2009) 16 NWLR (Pt. 1168) 585 at pg. 601, Paras. A-B., where the Court held that: “It must be understood that in the interpretation of contracts involving several documents, the trial court can only determine the issues before it on the basis of the documents including letters to the contract and conduct of the parties.” It was argued that the evidence before the Court revealed that the 1st Defendant expressed his intention not to honour his obligations to the Claimant under Exhibits B & C and that his subsequent withdrawal of his services breached the terms of Exhibits B & C. On this point, learned counsel cited the Court of Appeal case of OCEANIC BANK INTERNATIONAL (NIG.) LIMITED V. G. CHITEX INDUSTRIES LTD. (2000) 6 NWLR (Pt. 661) 464 where the Court stated thus: “….Breach of contract is failure to perform any promise which forms whole or part of a contract….. Unequivocal, distinct and absolute refusal to perform agreement. See Black’s Law Dictionary, 5th Edition at p. 171.” The Court was urged to hold that an action shall lie against the 1st Defendant for failing to perform his obligations under the Training Bonds without lawful excuse. Learned counsel submitted that the attempt by learned counsel to equate training bonds with contracts in restraint of trade is erroneous and misleading because training bond constitutes a different genre of agreement. On the definition of contract in restraint of trade, counsel cited the case of PETROFINA (GREAT) BRITAIN) LTD V. MARTIN (1966) CH. 146, where Diplock L. J. stated as follows: “A contract in restraint of trade is one in which a party (the convenantor) agrees with any other party (the covenantee) to restrict his liberty in the future to carry on a trade with other persons not parties to the contract in such a manner as he chooses.” It was argued that the fundamental basis of contract in restraint of trade is to prevent a former employee from using confidential information which is critical to the business of the employer to the detriment of the employer. See the case of MITCHEL V. REYNOLDS (1711) 1 P. WMS. He identified the essential features of contract in restraint of trade and submitted that such must pass the reasonableness test because they affect the freedom of the employee to be employed or trade for a given number of years or within a stated territory while the contract subsists. It was submitted that training bonds on the other hand do not seek to protect confidential information. But are designed to ensure that where an employer has expended huge cost to train an employee, the employee shall remain in the employment of the employee for an agreed period or to repay the full cost of the training if the employee decides to leave the employment. Learned counsel cited the case of A. G. FEDERATION V. AWOJOODU (1973) 3 UILR 4 where the Court enforced a training bond that specified five years. In line with the above authority, it was the submission of learned counsel that the thirty six (36) months specified by the training bonds is not unreasonable considering the need for the Claimant to reap the benefits of his investment of the 1st Defendant. Learned counsel submitted that training bonds are recognized and enforced in different jurisdiction and enjoined the Court to take cognizance of this international best practice by virtue of S. 7 of the National Industrial Court Act 2006 (NICA 2006). Learned counsel cited the case of EDWARD MILES V. JET CENTRE LIMITED T/A THE PRIVATE JET COMPANY (Case No. 12/02 delivered on 6th November 2012 where the Isle of Man Employment Tribunal held that a pilot sponsored by the employer to receive specialist training but subsequently dismissed fairly was entitled to repay the full or part of the amount spent on training him. Also cited was the Canadian case of NORTHERN THUNDERBIRD AIR INC. V. VAN HAREN, 2011 BCSC 837 where a training bond was executed after the employee pilot had completed the training sponsored by the employer. The training bond was therefore backdated. The Supreme Court of British Columbia held it to be unenforceable only because the employee did not receive any consideration as at the time the bond was executed. Learned counsel submitted that there is no law that says a training bond cannot extend the duration of a contract of employment beyond the term initially agreed by the parties for it to be reasonable. Learned counsel submitted that the interpretation of Exhibit E by the 1st Defendant to mean assurance from the Claimant that the bonds did not constitute a debt on it was mischievous and without any legal basis. It was submitted that Exhibit E was written before the execution of the Training Bonds. It was also argued that at best, Exhibit E would be no more than prior understanding which the execution of the Training Bonds supersedes. In the contention of learned counsel, the Training Bonds did not constitute a debt when Exhibit E was being executed but became a debt only when the 1st Defendant breached the terms of the Training Bonds. The Court was urged to reject the argument to the effect that Exhibits B & C are unconscionable and unreasonable. ISSUE NO. 2 “Whether the 2nd Defendant is not liable to the Claimant for the tort of interference with the subsisting contracts (between the Claimant and the 1st Defendant} It was contended that the 2nd Defendant had interfered with the subsisting contract between the Claimant and the 1st Defendant by offering employment to the latter on 4th May, 2011 even though Exhibit A subsisted till 31st May, 2011 assuming that the Training Bonds were not executed. The action of the 2nd Defendant it was submitted, amounts to interference with contract for which the 2nd Defendant is liable in tort. And that all the conditions necessary to establish the tort of interference as stated in the book, Law of Torts by Benedicta at pages 284-286 are present because: 1. There is a valid and subsisting contract between the Claimant and the 1st Defendant as per Exhibit A which was to last till 31st May, 2011. That the 1st Defendant signed Training Bonds (Exhibits B & C) extending his employment by further periods of 36 and 12 months respectively. 2. That the 2nd Defendant directly interfered with the said contract by offering employment to the 1st Defendant on 4th May, 2011 even though the contracts between the Claimant and the 1st Defendant (asper Exhibits A, B and C) were still valid and subsisting at the material time. It was submitted that this amounted to unequivocal evidence of direct interference with a subsisting contract since the 1st Defendant was still in the employment of the Claimant as at the time the offer of employment was made by the 2nd Defendant. Learned counsel submitted that the argument advanced by learned counsel for the 2nd Defendant to the effect that there was no subsisting contract between the 1st Defendant and the Claimant because the 1st former had resigned from the Claimant’s employment when the offer of employment was made is untrue and misleading. It was argued that the 1st Defendant did not give 180 days notice of resignation/termination as required by Clause 4.2 of Exhibit A. Learned counsel argued that the evidence before this Court shows that the 1st Defendant had abandoned his work even before the 3 years duration provided for in Exhibit A. 3. That the 2nd Defendant had constructive knowledge of the subsisting contract between the Claimant and the 1st Defendant sufficient to make the 2nd Defendant liable. On the meaning and application of the doctrine of constructive knowledge, counsel for the Claimant made reference to opinions expressed by some learned authors. One of such references was to Benedicta Ada Susu’s law of tort, at page 286 where the learned author succinctly argues that: “© Another element is that the third party must be established as having adequate knowledge of the existence of the contract or agreement between the plaintiff and another party. This could be actual or constructive knowledge of the contract and the obligations which will be ignored as a result of the inducement. This knowledge can be established actually or by circumstantial evidence. In D. C. Thomson v Deakin, it was stated that ‘common knowledge about the way business is conducted’ is enough to establish constructive knowledge of the defendant about the existence of a binding agreement. Also in Cunard steamship Co. Ltd v Stacey, constructive knowledge of the terms a seaman’s contract was attributed to an official of the seaman’s union-in this case, more specifically, the conformity of such contract with the Merchant Shipping Act of 1894.” It was submitted that in line with the averments at paragraph 15 of the Amended Statement of Claim of the Claimant constructive knowledge should be imputed to the 2nd Defendant who did not exercise reasonable diligence in recruiting the 1st Defendant. This according to counsel is compelling considering that the witness for the 2nd Defendant during cross examination admitted that reference check with previous employer is a critical step in employing a new staff but that this was not done. It was also contended that the 2nd Defendant did not act expeditiously but waited for about a month before it took action when it received a letter (Exhibit L) from the Solicitors for the Claimant. The Court was urged to hold that the 2nd Defendant had constructive and actual knowledge of the subsisting contracts. 4. On the last element of the tort of interference with contract, it was submitted that the Claimant suffered financial losses as pleaded at paragraph 17 of the Amended Statement of Claim because it could not immediately find and employ another pilot to operate the ATR-42 aircraft after the exit of the 1st Defendant. It was further submitted that evidence has been given that the financial losses would not have been incurred if the contracts had not been interfered with by the 2nd Defendant. On the basis of evidence adduced and arguments canvassed, the Court was urged to hold that the Claimant suffered damages due to the 2nd Defendant’s interference with the contracts it had with the 1st Defendant. ISSUE NO. 3 “Whether the Claimant is not entitled to damages for breach of contract and interference with contract together with associated exemplary/aggravated damages.” On this issue, it was the submission of counsel that there are two causes of action in this case with claim for damages tied to each of the two causes of action. The first one is for breach of the Training Bonds by the 1st Defendant in respect of which the Claimant is claiming the sum of twelve Million, six Hundred and Forty four Thousand, Four Hundred and Twenty Five Naira Only (N12,644,425.00) being the total amount the Claimant spent in training him. Learned counsel stated that the principle guiding the award of damages in contract cases as laid down in the case of HADLEY V. BAXENDALE (1845) 9 Exch. 341 and applied in a long line of decided Nigerian cases is that the damages should be such as may fairly and reasonably either arising naturally i.e. according to the usual course of things from such breach of contract itself or can be reasonably supposed to be within the contemplation of both parties at the time they entered the contract, as a probable result of the breach. Leaned counsel opined that the essence of the principle is to ensure that a plaintiff who successfully proves breach of contract does not recover far above what he ought to have received in the circumstances. On this point, counsel cited the cases of MOMODU V. UNIVERSITY OF BENIN (1997) 7 NWLR (Pt. 512) 325 at 337; STEPHEN OKONGWU V. NNPC (1989) 4 NWLR (Pt. 115) 295 at 306-307.And TANKO V. KADUNA LOCAL GOVERNMENT (2003) 7 WRN 144 AT 159. It was argued that this amount is within the contemplation of the parties to the contract as the parties agreed on this amount in Exhibits B & C to be repayable if the 1st Defendant left the employment of the Claimant. On the basis of the authorities cited, learned counsel urged the Court to grant the amount claimed as being within the contemplation of the parties. Learned counsel argued that the second cause of action relates to interference with contracts by the 2nd Defendant which is founded in tort for which special damages, general damages, exemplary damages, punitive damages and aggravated damages are recoverable. Learned counsel submitted that the Claimant is claiming N48,000,000.00 under this head. On the need for a party to plead and prove special damages, counsel referred to the case of GANIYU BADMUS & ANOR V. ABEGUNDE (1999) 11 NWLR (Pt. 627) 493 at 502, Paras. H-A. Learned counsel also cited the case of MARINE MANAGEMENT ASSOCIATE INC & ANOR V. KAMINE MARINE CONSULTANCY LTD (2012) 18 NWLR (Pt. 1333) 506 at 536, Para. F., Per Galadima, JSC held that: “It is noteworthy that this decision was applied by the court in the case of Elohor v Idahosa (1992) NWLR (Pt. 223) 323 where it was held at pages 334 – 335 thus; ‘Special damages were items of loss which the plaintiff, has to particularize in his pleadings to enable him give evidence thereto and to recover thereon…. In my view, paragraph 10 of the amended statement of claim give (sic) sufficient particulars of the basis of the claim for special damages. If the appellant wanted more particulars he ought to have demanded for them…. The legal implication of paragraph 11 of the amended statement of claim, in which the respondent averred that he would be found on the valuer’s report prepared by the estate surveyors in proof of special damages at the trial, was that the report became part of the pleading. This is because if a written document is referred to in a pleading, it becomes part of the pleading and it is open to the court to give the document its true legal effect. See the Patriots case (1962) 1 All NLR 570; (1962) 2 SCNLR 310.” On the basis of the above authority, the Court was urged to accept that the appellants in this case, having pleaded their great financial loss at paragraph 18 of the statement of claim that they would be relying on the report of Ajibola Ogunsola & Co and then in 19 of the said statement of claim for the sum of US$4, 875,333.15 have fulfilled the requirement of pleading the particulars of special damages. It was submitted that the Claimant has pleaded and particularize at paragraph 17 of the amended statement of claim the loss it suffered. It was further submitted that the evidence of the Claimant’s witness in her witness statement on oath restated these averment and tendered documents in proof of this loss. Counsel submitted that that the veracity of these documents and averments (now exhibits) was not shaken by the defendants herein except for the 2nd Defendant who in its statement of defence offered a feeble and sweeping denial that the Claimant did not suffer any damages. Learned counsel submitted that on the authority MARINE MANAGEMENT ASSOCIATE INC & ANOR V. KAMINE MARINE CONSULTANCY LTD (supra), the Court should regard the daily sales schedule for diverse periods between 14th January – 21st March 2011 together with the daily sales returns for local tickets and accompanying cash/cheque deposit slips evidencing payments for flights by individuals as integral parts of the pleadings of the Claimant. Counsel submitted that evidence that is not challenged should be accepted and acted upon. See OMOLERE IKUOMOLA V. SAMOTA ONIWAYA (1990) 4 NWLR (Pt. 146) 617 at 624 and AUDU & ANOR V. OKEKE (1998) 3 NWLR (Pt. 542) 373 at 383, Paras. F-G. The Court was urged to hold that the Claimant has pleaded and proved special damages. Learned counsel urged the Court to grant the sum of N10,000,000.00 claimed as aggravated damages because the conduct of the 2nd Defendant of employing the 1st Defendant without carrying out any reference check was reckless, insolent and outrageous. On when the court will award aggravated damages, counsel cited the case of MARINE MANAGEMENT ASSOCIATE INC & ANOR V. KAMINE MARINE CONSULTANCY LTD (supra). ISSUE NO. 4 “Whether the 1st Defendant is entitled to the reliefs sought in its (sic) counterclaim.” It was submitted that the 1st Defendant is not entitled to the sum claimed under the 1st head of the counterclaim because he had threated to breach and actually breached his contractual obligations to the Claimant. It was further submitted that the 1st Defendant had been employed by the 2nd Defendant during the subsistence of the latter’s contract with the Claimant. A party in breach cannot be allowed to profit from his wrongful act, it was argued. It was further submitted that the 1st Defendant is not entitled to special damages as same was neither specifically pleaded, particularized and proved as required by law. Learned counsel also submitted that the claim for general damages by the 1st Defendant must fail because the court does not award general damages in cases of breach of contract. On this proposition of law, learned counsel relied on the case of UNIVERSAL INSURANCE COMPANY LIMITED V. T. A. HAMMOND (1998) 9 NWLR (Pt.565) 540 at 367. The Court was urged to hold that the Claimant is entitled to the reliefs sought while the counterclaim must fail because same is not supported by law. I have carefully read and considered the pleadings, submissions, evidence and authorities placed before this Court. It suffices to determine this case on the basis of the issues distilled for determination on behalf of the Claimant. These issues are formulated in a manner that covers the issues formulated by learned counsel for the 1st and 2nd Defendants. The pertinent question is whether Exhibits B & C are valid and enforceable and whether the 1st Defendant breached the Technical Crew Consulting Agreement and Training Bonds entitling the Claimant to remedy? It is clear that the answer to the above two questions will depend on the meaning and effect of Article 5.4 of Exhibit A and Exhibit E (the Claimant’s letter dated September 27, 2011). This is because the contention of the 1st Defendant and the 2nd Defendant as stated earlier is that the Claimant cannot bind the 1st Defendant to its employment through Exhibits B & C beyond the 3 years stated in Article 3 of Exhibit A. It was therefore submitted that it would amount to fraud for the Claimant to seek to enforce the Training Bonds in view of its assurance to the 1st Defendant in Exhibit E that a Training Bond did not amount to a debt but mere demonstration of good faith and commitment by the parties. On its part, the Claimant submitted that both Exhibits validly extend the contract period of 3 years provided for in Article 3 of Exhibit A because Article 5.4 of Exhibit A envisages the signing of the two Exhibits. At this juncture, I think it is pertinent to reproduce the relevant provisions of Articles 3 and 5.4 of Exhibit A. Article 3 “This Agreement shall be operative for a period of three (3) years with effect from June 01, 2008 to May 31, 2011 with an option to renew subject to terms and conditions to be negotiated by the parties hereto.” Article 5.4 “In consideration of the Airline’s sponsorship of the Consultant’s aircraft type rating renewals and any other training programme relevant to the Consultant’s duties, the Consultant shall sign a Training Bond, which will bind the Consultant to the Airline for a period stipulated by the Airline.” I dare say that the provisions of the two Articles are clear, unambiguous and precise. While Article 3 states the contract duration to be 3 years, Article 5.4 provides that where the Airline (Claimant) sponsors the 1st Defendant to attend training programmes relevant to his duties, he shall sign a bond binding him for the period provided for in the bond. I have no hesitation in coming to the conclusion that in construing the contract of employment between the Claimant and the 1st Defendant, Exhibits A, B & C must be read together to decipher the intention of the parties. Put differently, the Training Bonds executed by the parties are manifestly within the purview and contemplation of Article 5.4 of Exhibit A. Having said that, it follows that the 1st Defendant cannot seek to avoid his obligations under the Training Bonds by claiming that they extend the duration of his employment beyond the 3 years stipulated in Exhibit A. I so hold. Also, the argument that the Training Bonds are unenforceable because the 1st Defendant signed Exhibit C due of the assurance given to him by the Claimant in Exhibit E is not tenable. If the contents of Exhibit E are put in context, Exhibit E and whatever assurance it contained would be no more than an attempt by the Claimant to persuade the 1st Defendant to execute Exhibit C. I really think that it is an acceptable practice for parties negotiating a contract to try and persuade each other to come into agreement or accept each other’s proposals. In any case, the contract itself, that is, Exhibit C is distinct from, and does not form part of Exhibit C. It must be borne in mind that under cross examination the 1st Defendant admitted that he understood the contents of the Training Bonds he signed. He also stated on oath that he had the option to accept to sign or refuse to sign the Training Bonds. Thus, the capacity of the parties to execute the contract of employment as codified in Exhibits A, B &C is not in doubt. It also means that the argument that the 1st Defendant was induced into signing the Training Bond by reason of fraud or misrepresentation is totally unfounded and is hereby discountenanced. Another argument advanced by counsel for the 1st & 2nd Defendants in support of the unenforceability of the Training Bonds was that the contract terms of 36 months and 12 months provided for in Exhibits B & C respectively are unreasonable or unconscionable. The Court was urged to hold that the duration of the contract in the two Training Bonds are unreasonable and unenforceable. As argued on behalf of the Claimant, the cases cited in support of this proposition are unhelpful to the case of the defendants. The cases of KOUMOLIS V. LEVENTIS MOTORS LTD (supra and NORDENFELT V. MAXM NORDENFELT GUNS & AMMUNITION C. LTD. (supra) dealt with contracts in restraint of trade. I agree with the argument of learned counsel for the Claimant that contracts in restraint of trade are distinguishable from training bonds. Learned counsel stood on strong logical firmament when he posited that the objective of a contract in restraint of trade is to protect an employer’s confidential information acquired by an ex-employee from being used against the employer. On the other hand, a training bond seeks to compel a current employee whose training has been sponsored by the employer to work for an agreed duration so that the employer could derive the benefits of its investment on the employee. The case of A. G. FEDERATION V AWOJOODU (supra) relied upon is quite apposite on this point. Also, in line with the constitutional mandate of this Court to recognize and apply international best practices, I will like to state that the practice of executing training bond is practiced in different jurisdictions. See the cases of EDWARD MILES V. JETCENTRE LIMITED T/A THE PRIVATE JET COMPANY (supra) and NORTHERN THUNDERBIRD AIR INC. V. VAN HAREN, (supra) cited by learned counsel for the Claimant are quite instructive. On the strength of the authorities that I have just referred to, I have come to the irresistible conclusion that Exhibits B & C are valid and enforceable as between the Claimant and the 1st Defendant. I now turn the second leg of the Issue No. 1 formulated by the Claimant’s counsel. Did the 1st Defendant breach the Technical Crew Consulting Agreement (Exhibit A) and Training Bonds Agreement by resigning from the Claimant Company? The contention of the Claimant is that the 1st Defendant resigned his employment and thereby breached his contractual obligations under Exhibits A, B and C. However, from a close perusal of the pleadings of the Claimant, nowhere was it pleaded in the amended statement of facts that the 1st Defendant resigned. Let me once again quote paragraphs 11, 12 and 13 of the amended statement of facts: “11. While the Bond Agreement is still subsisting, the 1st Defendant indicated that he would be leaving the services of the Claimant without serving out the period he had agreed to continue to render services to the Claimant. The Claimant shall found and rely on the letter of the Defendant dated 25th February, 2011 and addressed to the Claimant during the trial of this suit. 12. The claimant responded by reminding the 1st Defendant of his obligations under the Bond Agreements and demanded that he either honours his obligations under the Bond Agreements or refund the full cost of the training sponsored by the Claimant in accordance with the agreement between the parties. The Claimant shall rely on its letter dated March 21, 2011 during the trial of this suit. 13. The 1st Defendant has manifested a clear intention to breach the Bonds Agreements voluntarily entered into with the Claimant from May 31, 2011 when he communicated his intention to terminate all relationship with the Claimant. The Claimant shall rely on the 1st Defendant’s letter dated 27th March, 2011. In the said letter, the defendant also denied any obligation to repay the cost of the training borne by the Claimant upon his unilateral disengagement.” From the foregoing averments it becomes glaring that the Claimant did not plead that the 1st Defendant resigned. In any case, no evidence was adduced to show that the 1st Defendant resigned. I therefore hold that the 1st Defendant did not resign from the employment of the Claimant. It was however pleaded that the 1st Defendant indicated his intention to stop performing his contractual obligations to the Claimant from the 31st day of May, 2011. The witness to the Claimant gave evidence that the 1st Defendant stopped coming to work in April, 2011 when his stimulator certificate expired. In his evidence in-chief before the Court, the 1st Defendant did not deny that he stopped working for the Claimant from April 2008. One fact that has not escaped the attention of this Court is that this action was commenced on April 8, 2011. At the material time the 1st Defendant was yet to stop working for the Claimant. How did I come to that conclusion? During cross examination, the witness for the Claimant gave evidence to the effect that the Application by which the Claimant sought for an order of this Court to restrain the 1st Defendant from disengaging from its services prior to the expiration of his contract was withdrawn because the 1st Defendant stopped coming to work before the date fixed for the hearing of the said Application. Now let me to turn to the defence of the 1st& 2nd Defendants to the charge that the 1st Defendant breached the terms and conditions of his contractual obligations contained in Exhibits A, B & C by threatening to disengage from the services of the Claimant from 31st May, 2011 contrary to the terms of the contract of employment. The relevant averments are at paragraphs 20, 21 & 28 of the amended statement of defence and counterclaim which I intend to reproduce for ease of reference. “20. The 1st (sic) avers that 1st Defendant (sic) has ceased to be an employee of the Claimant after the breach of the contract of employment by the claimant, when it stopped paying the 1st Defendant’s Salary (sic). 21. The 1st Defendant has severally indicated to the Claimant that he is not entitled to pay damages for breach of any training bond agreement since contrary to the reasoning of the Claimant he did not terminate his employment with the company (sic), rather his contract of employment which forms the basis of his relationship with the Applicant (sic) expires ordinarily by effluxion of time on 31st May, 2011, but same was terminated after the Claimant stopped paying his salary.” In furtherance of his defence, the 1st Defendant further avers as follows” “28. The 1st Defendant states that the Claimant up till date have (sic) failed to pay the 1st Defendant his Base Fees, Local Duty Allowance and Flight Allowance from March 2011 till the expiration of his Consultancy Agreement with the Claimant which is around N600,000.00 (Six Hundred Thousand Naira) every month.” Article 11 of Exhibit A deals with “Consulting Fees,” and it provides that: “11. 1 In consideration of the supply of Consulting Services, and subject to the deduction provided in Article 12 herein, the Airline shall pay to the Consultant the following fees stated and defined below in the manner detailed in Schedule 3 attached hereto. (a) Base Fees: This is the basic fee payable to the Consultant for the Consulting Services provided for the Airline. (b) Local Duty Allowance: This is an additional fee payable to the Consultant for reporting, remaining on duty and complying with the Airline’s directives including flying the aircraft of the Airline. (c) Flight Allowance: This is the additional incentive paid to the Consultant for every Hour flown in the Company’s aircraft on commercial service under the policy of the Airline.” I think it is also compelling to take a critical look at the provision of Schedule 3 referred to in Article 11 of Exhibit A. I refer more specifically to paragraphs 3 – 5 of the Schedule which state as follows: “3 The Base Fee shall be paid by the Airline no later than the last working day of the civil month during which the Consulting Services has been performed by the Consultant. Where the last working day of the month is not a Business Day, payment shall be made on the next working day. 4 The Local Duty Allowance shall be paid by the Airline no later than the 15th day of the civil month following the month during which the duty has been performed by the Consultant. Where the said 15th day is not a Business Day, the payment shall be sent on the next working day. 5 The Flight Allowance shall be paid by the Airline no later than the 15th of the civil month following the month during which the Consulting Services have been performed by the Consultant. Where the said 15th day is not a Business Day, payment shall be made on the next working day.” From the foregoing provisions of The Technical Crew Consulting Agreement (Aircraft Pilots), otherwise referred to as Exhibit A, it is evidently clear that the Claimant is obliged to make payments to the 1st Defendant as provided for the in the Agreement. At the trial of this suit, the 1st Defendant gave evidence that his Base Fees, Local Duty Allowance and Flight Allowance have not been paid by the Claimant from the month of March – May 2011. This was also repeated in his witness statement on oath. The witness for the 2nd Defendant also gave evidence along the same line. In all, the evidence of the 1st Defendant and the witness for the 2nd Defendant remains unchallenged. Rather, the Claimant’s witness admitted that the Claimant did not pay the March 2011 salary of the 1st Defendant. There was no evidence before the Court that the 1st Defendant did not work for the Claimant in March 2011 but that he stopped going to work in April 2011. This Court has always abided by the sound principle of law that a party who implores the Court to disbelief the evidence of another has a duty to adduce evidence to contradict the evidence in question. However, where a party has given evidence on pleaded facts and same remains unchallenged, this Court is duty bound to accept the evidence, except there is some other compelling reason why the Court should desist from accepting and acting on the evidence. In other words, a long line of cases have established the principle that where evidence given by a party is not challenged or controverted by the other party who has the opportunity to do, it is open to the Court to accept the evidence in the absence of any other cogent factor that dictates otherwise. See the case of MRS JOSEPHINE MBA VS. NIGERIA PRISON & 2 ORS Suit No: NICN/ABJ/93/2012, this Court held as follows: “The implication of this is settled in law as it has been long recognized and accepted as an irreducible principle of law that unchallenged evidence that is credible ought to be accepted and acted upon by a court of law.” See also ISENSE V. U.B.A. PLC (2012) 26 WRN, 146 at 171, line 10-15. Section 123 of the Evidence Act 2011 which I have already quoted in the course of this judgment is also applicable on this proposition of law. I am unable to merely gloss over evidence before this Court that the March 2011 Base Fees, Local Duty Allowance and Flight were not paid to the 1st Defendant as agreed in the contract of employment because of its implication. What is this implication? Some learned authors have offered useful guidance on the legal implications of withholding all or part of the salary/wages of an employee without lawful excuse. Douglas Brodie in his book, The Employment Contract: Legal Principles, Drafting, and Interpretation (New York: Oxford University Press, 2005) t page 85 states as follow: “It is not surprising to discover that the courts view the employer’s obligations in respect of payment of wages as a key element of the employment contract. ‘In reality it is difficult to exaggerate the crucial importance of pay in any contract of employment. In simple terms the employee offers his skills and efforts in exchange for his pay: that is the understanding at the heart of the contractual arrangement between him and his employer.’… The fact that an employer may have good reason for failing to make payment in accordance with the terms of the contract is irrelevant.” Similarly, Ian Smith & Nicholas Randall in Contract Actions in Modern Employment Laws: Development and Issues (London: Butterworths LexisNexis, 2002) at page 65 notes that: “The general obligation on an employer is to pay the wages due, on the due date.” The authors at page 66 further posits that: “With regard to pay, however, the obligation is a particularly strong one. This means that any failure to pay that which is contractually owing, or any particular element of it, is likely viewed as a fundamental breach of contract entitling the employee to walk out and claim constructive dismissal, as the Court of Appeal has recently reminded us in Cantor Fitzgerald International v. Callaghan….on the other hand, it may be that simple lateness in paying (eg due to an employer’s cash flow problems or extraneous factors) might or might not be a fundamental breach. In general, however, pay (including additional amounts such as bonus or commission) is likely to be such a basic element of the contract that any interference with it by the employer will be legally dangerous. [Emphasis supplied].” Also of significant relevance to the case in hand is the case of LAGOS STATE TEACHING HOSPITAL AND MANAGEMENT BOARD V. PRINCE M. B. ADEWOLE (1998) 5 NWLR (Pt. 550) 406 at 411, Paras. B-C, R. 9.In that case, the appellant granted the study leave to the respondent to study accountancy in the UK. That was in 1983 and with a promise by the appellant to continue to pay the salary of the respondent. The respondent later left the London School of Accountancy for Kilburn College, London without informing the appellant. In 1984 the respondent was retrenched and his salary stopped. When the respondent received the news of this development through an unnamed friend he wrote a petition to the Chief of Army Staff in January, 1985. However in 1992 he brought an action claiming arrears of salaries. The Court held that in an action where the plaintiff claims that payment of his salaries has been wrongly withheld, the cause of action accrues from the date the salaries are due for payment. And that the liability of the employer does not generally depend on demand for payment. The implication of the decision in LAGOS STATE TEACHING HOSPITAL AND MANAGEMENT BOARD V. PRINCE M. B. ADEWOLE (supra) is that once the salary of an employee is wrongly withheld by an employer, an actionable wrong has been committed and the employee is entitled to sue. The actionable wrong basically derives from the fact that the non-payment of the salary as at when due amounts to breach of contract by the employer who can be sued by the aggrieved employee. In the case at hand, the Claimant in anticipation of the expressed intention of the 1st Defendant to disengage from its services from 31st May, 2011, rightly commenced this action but wrongfully withheld the salary of the 1st Defendant for the month of March 2011. This is despite the fact that the 1st Defendant in his letter to the Claimant dated 27th March, 2011 (Exhibit H) states thus: “Furthermore, I wish to reiterate that I am ready and eager to see through my contract with the company until May 31st 2011 despite my 80 days leave outstanding owed me (sic) by the company (sic).” The Claimant unwittingly gave a recalcitrant employee a justifiable reason to achieve his deep-rooted desire to stop working for the Claimant before the time agreed as per Exhibit A and the Training Bonds. This is painful from a sentimental point of view but court decisions are not based on sentiments but on facts, evidence and the law. I have shown with the aid of authorities that the Claimant breached a fundament term of the contract of employment when it failed to pay the salary of the 1st Defendant for the month of March 2011. This conduct was inconsistent with the assertion that the contract of employment subsisted. It was an unacceptable conduct which in the realm of employer/employee relationship effectively determined the contract of employment. I answer the second part of Issue 1 formulated by learned counsel for the Claimant in the negative. It is therefore my decision that the contract of employment between the Claimant and the 1st Defendant was determined when the Claimant without legal justification withheld the March 2011 salary of the 1st Defendant. I further hold that the 1st Defendant did not breach the Technical Crew Consulting Agreement and the Training Bonds. I now proceed to the second issue formulated by the Claimant for determination. Is the 2nd Defendant liable to the Claimant for the tort of interference with the subsisting contracts between the Claimant and the 1st Defendant? I have already held that the contract of employment between the Claimant and the 1stDefendant became determined when the Claimant wrongfully withheld the March 2011 salary of the 1st Defendant. Based on the evidence before the Court, the 1st Defendant was offered employment by the 2nd Defendant on 4th May, 2011. That was after the contract had been determined and the 1st Defendant was no longer under any obligation to the Claimant. The argument that constructive notice of the existence of a subsisting contract of employment between the Claimant and the 1st Defendant be imputed to the latter is misplaced. This is so because there was no subsisting contract of employment between the Claimant and the 1st Defendant as at 4th of May, 2011 when the offer of employment was made. The evidence of the 1st Defendant before the Court that he did not reveal to the 2nd Defendant the existence of any obligation he owes to the Claimant placed along with the evidence of the 2nd Defendant that the 1st Defendant did not disclose to it that he had any existing obligations to a third part evidentially insulates the 2nd Defendant from liability for the tort of interference with a subsisting contract of employment. In the face of these cogent and compelling pieces of evidence, it is to my mind a signal of injustice and unfair treatment to impute constructive notice to the 2nd Defendant so as to hold it liable as urged by learned counsel for the Claimant. Although, I need not go further than this on this issue, however, it might be necessary to observe that there is evidence [Exhibit DDW 10) that the 1st Defendant was suspended immediately the Claimant’s Solicitors wrote to inform the 2nd Defendant that the 1st Defendant was still contractually bound to it. The 1st Defendant and the witness to the 2nd Defendant also testified that the 1st Defendant was not induced by the 2nd Defendant to breach his obligations to the Claimant. These pieces of evidence were not challenged neither did the Claimant adduce evidence to show that the 1st Defendant was induced by the 2nd Defendant. The Claimant merely relied on circumstantial evidence tending to point to constructive knowledge but which is of little or no evidential value when placed side by side with the testimonies of the 1st& 2nd Defendants to the contrary. In my candid view, the Claimant has failed to prove that the 2nd Defendant induced or procured the 1st Defendant to breach his contractual obligations to the Claimant. In any case, I have also held above that there was no subsisting contract between the Claimant and the 1st Defendant when the latter was offered employment by the 2nd Defendant. Consequently, I resolve Issue 2 formulated by the Claimant against it. I hold that the 2nd Defendant is not liable to the Claimant for the tort of interference with the subsisting contracts between the Claimant and the 1st Defendant. At this point, it is no longer expedient or necessary to determine or resolve the other issues distilled by learned counsel for the Claimant. To do so would amount to sheer academic exercise. In consequence of all the authorities cited above, I hereby refuse all the reliefs sought by the Claimant in his amended statement of facts. The case of the Claimant accordingly fails. Let me quickly make some pertinent observations at this stage. I cannot over-emphasize the obvious fact that the conduct of the 1st Defendant/Counter-Claimant is reprehensible and appalling. It beats me hollow that an employee could take advantage of the benevolence of his employer and so recklessly deny his obligations under contracts validly executed. By his own admission, he perfectly understood the contents and implications of the Agreements he signed, yet, he entertained no fear of God in his quest to renege from his contractual obligations. This is an act of unmitigated betrayal that deserves to be condemned. This sort of behaviour is certainly injurious to employer/employee relationship that is mutually beneficial. Honestly, I find every word inadequate to condemn this shameful conduct. We must all remember that what goes round comes round. I will say no more. I now turn to consider the counter claim in this suit between: BETWEEN: OLADEJI AFOLAYAN............................................................COUNTER-CLAIMANT AND OVERLAND AIRWAYS LIMITED..............................DEFENDANT BY COUNTER-CLAIM The 1st Defendant in his amended statement of defence and counter-claim counter-claims against the Defendant by counter-claim as follows: “1 A DECLARATION that the Technical Crew Consulting Agreement entered into by the Counter-claimant and the Defendant by Counter-Claim terminates by effluxion of time on the 31st May 2011. 2. A DECLARATION that the Counter-Claimant upon the expiration of the Technical Crew Consulting Agreement which forms his contract of employment with the Defendant by Counter-Claim Company is discharged from the purported Training Bond Agreement with the Defendant by Counter-Claim Company from 31st day of June 2011. 3. AN ORDER directing the Claimant the Claimant to pay the Defendant/Counter-Claimant his Base Fees, Local Duty Allowance and Flight Allowance from March 2011 in accordance with the Technical Crew Consulting Agreement executed by both parties which is around N600,000.00 (Six Hundred Thousand Naira ) every month. ALTERNATIVELY 4. A DECLARATION that the employment relationship between the Counter-Claimant and the Defendant by Counter-Claim became determined upon the failure of the Defendant by Counter-Claim to pay the Counter-Claimant his Base fees, Local Duty and Flight Allowance from March 2011 in accordance with the Technical Crew Consulting Agreement. 5. Special damages in the sum of N10,000,000 (Ten Million Naira) and general damages in the sum of N10,000,000 (Ten Thousand Naira) only, arising from the Defendant by Counterclaim’s breach of contract.” It is not neither expedient nor necessary for to repeat the arguments and submissions made for and against the counter-claim. However, the case of the Counter-Claimant is premised on the fact that he is entitled to the reliefs sought in the counter-claim because the Technical Crew Consulting Agreement between the parties was breached and or terminated by the Defendant by counter-claim. On the other hand, the Defendant by counter-claim argues that the Counter-Claimant is not entitled to the reliefs sought because he breached the terms and conditions of the Technical Crew Consulting Agreement and the Training Bonds by stopping working for the Claimant in April 2011 despite the subsistence of the contract of employment between them. I have earlier held that the contract of employment was determined when the Defendant counter-claim wrongly withheld the March 2011 salary of the Counter-Claimant. It follows that the contract of employment was not determined by effluxion of time on 31st May, 2011. It also follows that the Counter-Claimant is discharged from any obligation under the Technical Crew Consulting Agreement and any Training Bond with effect from the period the Defendant by counter-claim determined the contract. It further follows that the Counter-Claimant is entitled to his Base Fees, Local Duty Allowance and Flight Allowance amounting to N600,000.00 (Six Hundred Thousand Naira) for the month of March 2011. In consequence, reliefs 1 – 4 on the counter-claim have become spent or superfluous. On the question of damages, I have no hesitation in coming to the conclusion that the Counter-Claimant failed to prove his entitlement to the award of special damages. In his pleadings, he failed to plead and particularize special damages as required by law. Accordingly, his claim for special damages fails. And I so hold. See the case of MARINE MANAGEMENT ASSOCIATE INC & BADMUS V. KAMINE MARINE CONSULTANCY LTD supra. In any case, a long line of cases has decided that in ordinary contract of employment the amount of damages due to an employee whose employment has been wrongfully terminated is the award of salary for the period of notice and other legitimate entitlements at the time the employment was determined. The Supreme Court case of GABRIEL ATIVIE VS. KABELMETAL NIG. LTD. (2008) LPELR – 591 (SC) is an authority on this principle of law. See also the Supreme Court decision in the case of P. C. IMOLOAME VS. WEST AFRICAN EXAMINATION COUNCIL (1992) LPELR – 1500 (SC). It is settled law that courts do not award general damages in actions founded on breach of contract of employment. See UNIVERSAL INSURANCE COMPANY LIMITED V. T. A. HAMMOND supra. Flowing from the above decisions, I am of the considered view that the claim for N10,000,000.00 (Ten Million Naira) general damages also fails. I hold that the Counter-Claimant is not entitled to N10,000,000 claimed as general damages. I hold that having failed to give one month notice of termination as required under Exhibit A, the Defendant by counter-claim is liable to pay to the Counter-Claimant one month salary in lieu of the early notice of termination that was not given. This is also assessed at N600,000 (Six Hundred Thousand Naira). I so hold. Thus, the counter-claim succeeds. This brings me to the provision of Article 12 of Exhibit A where the parties agreed as follows: “If this Agreement is early terminated in accordance with Article 14 herein, the Airline shall be authorized to set=off against the Consulting Fees due to the to the Consultant a maximum amount of Ten Thousand United States Dollars ($10,000.00) or its naira equivalent. This maximum amount corresponds to the total cost of license renewal requirements incurred by the Airline every six months in the course of the Assignment. This is exclusive of other training bonds cost that may be valid and in force concurrently.” To my mind, the implication of Article 14 is that the Defendant by counter-claim shall be entitled to a set-off in the amount stated in the said Article against whatever amount the Counter-Claimant is entitled to or awarded in this judgment by way of Consulting Fees. I have awarded a cumulative amount of One Million, Two Hundred Thousand Naira [N1,200,000.00] in favour of the Counter-Claimant. The naira equivalent of Ten Thousand United States Dollars [US$10,000.00] at the prevailing exchange rate of One Hundred and Seventy Naira [N170.00] to a dollar equals One Million Seven Hundred, Seven Hundred Thousand Naira [N1,700,000.00]. I will now have to deduct or set off this amount against the sum of One Million, Two Hundred Thousand Naira [N1,200,000.00] which gives a total of Five Hundred Thousand Naira [N500,000.00] outstanding in favour of the Defendant by counter-claim. The implication of this is that the Counter-Claimant is not entitled to any monetary award. It is therefore my decision that the Counter-Claimant is not entitled to any monetary award in view of Article 14 of the Technical Crew Consulting Agreement. I so hold. However, the Defendant by counter-claim has not claimed the outstanding sum of Five Hundred Thousand Naira. And this court not being a Father Christmas cannot grant a relief not claimed by a party. See for instance the Supreme Court decision in ODOFIN & ANOR V. AGU & ANOR (1991) 5 SC. 59. For purposes of clarity and certainty, I hereby hold and order as follows: 1. That the contract of employment between the Claimant/Defendant by counter-claim and 1st Defendant/Counter-Claimant was determined when the former wrongfully withheld the salary of the latter for the month of March 2011. 2. That the 1st Defendant/Counter-Claimant is discharged from further obligations under the Technical Crew Consulting Agreement and the Training Bonds. 3. That the 2nd Defendant did not induce or procure the 1st Defendant to breach his obligation to the Claimant under the Training Bonds and the Technical Crew Consulting Agreement. I make no order as to cost. Hon. Justice, B. A. Adejumo, OFR, MCI.Arb, GFISMN, CFIAR, FCIArb, FNILS President, National Industrial Court of Nigeria.