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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: APRIL 15, 2015 SUIT NO. NICN/LA/597/2012 BETWEEN Overland Airways Limited - Claimant AND Captain Raymond Jam - Defendant REPRESENTATION Gbenga Bello, and with him is Miss Kemi Kayode, for the claimant. Miss Funmilayo Odude, and with her is Mrs. Adenike Lawal, for the defendant. JUDGMENT The claimant by a complaint dated and filed on 23rd November 2012 instituted the present suit against the defendant. The complaint was accompanied by statement of facts dated 16th November 2012, list of witnesses dated 16th November 2012, witness statement on oath dated 23rd November 2012, list of documents dated 16th November 2012 and copies of the documents to be relied upon marked Exhibits C1 – C8. By the statement of facts, the claimant is seeking the following reliefs from this Court – 1. A declaration that the defendant is in breach of the terms and conditions as stipulated under the Direct Service Contract dated April 11, 2006 and under the Training Bond Agreements dated 17th day of August 2007 and 30th day of April 2008, which Agreements were both executed by the…defendant. 2. A declaration that the defendant is liable in debt to the claimant in the sum of N4,442,000,232.39 (sic) (Four Million, Four Hundred and Forty-Two Thousand, Thirty-Nine Kobo being total amount paid by the claimant for separate training programmes attended by the defendant for which he undertook to remain in the employment of the claimant for a period up to 48 months after the completion of the said training. 3. An order directing the defendant to pay to the claimant the sum of 4,442,000,232.39 (sic) (Four Million, Four Hundred and Forty Two-Thousand, Thirty-Nine Kobo) being debt owed to the claimant as a result of the breach of contract. 4. Interest on the said 4,442,000,232.39 (sic) (Four Million, Four Hundred and Forty-Two Thousand, Thirty-Nine Kobo) at the rate of 7% from the date of the breach till judgment herein is delivered and at 21% from the date of delivery of judgment till the said sum is liquidated. 5. Cost of this action at N1,000,000 (One Million Naira only). In reaction, the defendant filed his defence processes i.e. statement of defence and counterclaim, list of witnesses, witness statement on oath, list of documents (all dated and filed on 3rd July 2013) and copies of the documents marked Exhibits D1 – D8. The defendant counterclaimed against the claimant for the following reliefs – a) The sum of N16,744,000.00 (Sixteen Million, Seven Hundred and Forty-Four Thousand Naira) only being the total of N644,000.00 shortfall on the counterclaimant’s monthly salary for a period of 26 months commencing from April 2006 to July 2008. b) Interest on the said N16,744,000.00 at the rate of 7% from April 2006 till judgment is delivered in the matter and at the rate of 21% from the date of delivery till the sum is liquidated. c) The sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) being the total of Five Hundred Thousand Naira per month promised the counterclaimant for the extra services especially for flying the claimant’s beech 1900 for five months from November 2007 to March 2008. d) Interest on the said N2,500,000.00 at the rate of 7% from April 2006 till judgment is delivered in the matter and at the rate of 21% from the date of delivery till the sum is liquidated. e) The sum of N40,000.00 being the cost of transferring the counterclaimant’s B1900 rating from his American FAA License to his Nigerian NCA License at the behest of the defendant to counterclaim. f) Interest on the said N40,000.00 at the rate of 7% from April 2006 till judgment is delivered in the matter and at the rate of 21% from the date of delivery till the sum is liquidated. The claimant on its part filed on 25th September 2013 its reply and defence to counterclaim and reply to statement of defence, further witness statement on oath, further list of documents and a copy of the additional document marked Exhibit C9. At the trial, Mrs. Cynthia Mohammed, a lawyer and Manager, Legal Department of the claimant testified for the claimant as CW; while the defendant testified on his own behalf as DW. At the close of trial, parties were asked to file and serve their respective written addresses starting with the defendant. The defendant’s written address is dated and filed on 18th November 2014; while that of the claimant is dated 8th December 2014 but filed on 11th December 2014. The defendant’s reply on points of law is dated and filed on 3rd February 2015. The case of the claimant is that the defendant was employed on a fixed term basis for two (2) years by the claimant as a Captain via a Direct Service Contract with effect from March 1, 2006 to February 27, 2008 and renewable for a further period on terms to be mutually agreed by both parties. The Direct Service Contract dated 11th April 2006 was tendered as Exhibit Cl. Further to the provisions of paragraph 8 of the said Direct Service Contract, the claimant sponsored the defendant to attend two trainings at the Flight Safety International, La Guardia Airport USA and PANAM International Flight Academy Minnesota, USA at costs to the claimant. The defendant executed two training bonds accordingly. The first training bond was executed and made effective 17th August 2007 and the second was made effective 30th April 2008. Both bonds were tendered and received in evidence as Exhibits C2 and C3 respectively. By the said bonds, the defendant agreed to commit himself to the services of the claimant for a further period of Thirty-Six (36) months in respect of the bond made effective 17th August 2007 and Twelve (12) months in respect of Training Bond made effective from 30th April 2008. However during the subsistence of the obligations of the bonds, the defendant tendered his resignation on the 18th of July 2008, to take effect at the end of July 2008 (Exhibit C4). The case of the claimant, therefore, is simply that the defendant breached the terms of the bonds he executed with the claimant and that the said breach entitles the claimant to repayment of the expenses of the training as stated in the bonds. The defendant denied these claims and counterclaimed for unpaid short falls in his salary and payment for alleged extra services rendered to the claimant. The defendant’s case is that he was formerly in the employment of Fresh Air Limited as a Captain for the purpose of flying a SAAB 340 aircraft belonging to Dr. Wale Babalakin. It was necessary for Dr. Babalakin to put his aircraft under the bailment of Fresh Air because he had no Aircraft Operating License of his own. In 2006, Dr. Babalakin moved his SAAB 340 aircraft from under the bailment of Fresh Air to the claimant and the defendant had to move with the aircraft. Upon the transfer of the aircraft to the claimant, Exhibit D2 was produced for the defendant’s signature, which he signed as requested as he regarded the claimant as the agent of Dr. Babalakin. That the Pilots Salary and Allowance Schedule annexed to Exhibit D2 shows that he was employed solely to fly the SAAB 340 aircraft belonging to Dr. Babalakin. The defendant went on that Exhibit D2 guaranteed a monthly take home of N505,000 for 30 flight hours a month being the total of the basic fee of N400,000 and a flight allowance of N3,500 per hour. This sum was below what Dr. Babalakin had been paying through Fresh Airlines. When this disparity was brought to the attention of Dr. Babalakin in March 2008, he revealed that this was not the arrangement made with the claimant and that the claimant had paid the defendant only about half of what was provided. To the defendant, the claimant is the only airline in the industry that seeks to bind their staff by its training bond to work for 12 to 36 months in consideration for a training that allows the pilot to fly for only six months. That in November 2006, the claimant began to suffer a dearth of pilots and began to pressurize the defendant to fly other aircrafts and upon being implored by Captain Edward Boyo, the claimant’s proprietor, he agreed to fly the B1900 aircraft and Captain Boyo undertook to pay the defendant the sum of N500,000 per month for this service. In order to fly this aircraft, he had to be type-rated for it, which was what gave rise to the training to be type-rated for the B1900 aircraft. The defendant continued that the training bond agreements are always rushed to staff on the day of departure of the training and hardly anyone reads the contents because the industry standard is to bond a person to serve for the duration of the license the training provides, which is 6 months. That he did not sign the training bond dated 30th April 2008. It was Dr. Babalakin that paid for the ‘recurrency’ training on the SAAB 340 aircraft, which is his aircraft, and there was thus no basis for a bond agreement. That when Dr. Babalakin discovered that the defendant was flying another aircraft apart from his SAAB 340 aircraft, he was upset. The defendant thus stopped flying the B1900 aircraft in March 2008. That the working conditions became unbearable for the defendant and he was thus constrained to resign and seek employment elsewhere. DEFENDANT’S SUBMISSIONS The defendant framed two issues for the determination of the Court, namely – 1. Whether the claimant is entitled to any of the reliefs sought in this suit. 2. Whether the defendant/counterclaimant is not entitled to his counterclaim. Regarding issue 1, the defendant first dealt with the issue of enforceability of training bonds. To the defendant, the crux of the claimant’s case is the Training Bond Agreements dated 17th August 2007 and 30th April 2008 (Exhibits C2 and C3). That the defendant has in paragraph 4v of its statement of defence and paragraph 5v of his witness statement on oath denied signing the Training Bond Agreement dated 30th April 2008 (this issue is addressed later on in the defendant’s written address). It is the defendant’s submission that both training bond agreements are unenforceable by reason of the fact that they involve transactions, which by their performance would involve the commission of a legal wrong, and that they involve transactions, which are otherwise contrary to public policy by reason of the unreasonable restraint of trade. To the defendant, type-rating trainings were explained by both the claimant’s witness and the defendant during their cross-examinations. That CW stated that type-rating has to do with the license which confers on the pilot the qualification to operate a particular aircraft. She stated further that before a pilot can fly or operate any aircraft, he has to be type-rated (trained or licensed) for it. The defendant confirmed this when he stated during cross-examination that type-rating is a type of training one attends to become familiar with the specifications of an aircraft. CW further stated during cross-examination that there are two types of training: the initial training (which is the first time a pilot is trained on the aircraft) and a ‘recurrency’ training (subsequent trainings on the aircraft which a pilot is to undertake every six months). These are the trainings attended which gave rise to the agreements sought to be enforced by the claimant in this suit. Exhibit C2 is in respect of an initial training and Exhibit C3 (denied by the defendant) is in respect of a ‘recurrency’ training. Another fact that is not in dispute in this suit is the duration of the license. Upon completion of the initial training, the pilot is awarded a license showing he is licensed to fly the aircraft. He can, however, fly the aircraft with that license for a duration of six months and to continue to fly the aircraft must attend another training (the ‘recurrency’ training). This was confirmed by CW when she stated during cross-examination that the initial license obtained has to be renewed every six months, for which the pilot will be sent for a refresher course (‘recurrency’ training). It is the defendant’s submission that Exhibits C2 and C3 (denied by the defendant) sought to perpetuate the doing an illegal act. By the terms of the agreement, the defendant was to continue to fly the aircraft beyond the duration of the license obtained for it. The two training bonds sought to bind the defendant for thirty-six months (three years) and twelve months (one year) respectively for licenses which remain valid for only six months before another training is required. It is the defendant’s submission that the performance of these agreements would lead to the commission of an illegality, referring to Alao v. ACB Ltd [1998] 3 NWLR (Pt. 542) 339 at 355 where the Supreme Court per Kutigi, JSC held thus – The law is very clear on the effect of illegality on a transaction or contract. It is the law that a contract is illegal if the consideration or the promise involves doing something illegal or contrary to public policy or if the intention of the parties in making the contract is thereby to promote something which is illegal or contrary to public policy. An illegal contract is a void contract and it cannot be the foundation of any legal right. In other words when the object of either the promise or the consideration is to promote the committal of an illegal act, the contract itself is illegal and cannot be enforced. The defendant continued that the Nigeria Civil Aviation Regulations 2009 (Table 2 under IS 1.3.3 (b) of the Regulations) make it an offence for both the airline operator and the pilot to fly without a valid type-rating license. That the defendant confirmed this under cross-examination when he stated that without having a valid type-rating license, there would be grave consequences for both him and the airline. The performance of the training bond agreements would, therefore, have led to a direct breach of the rules and regulations of the aviation industry. The Supreme Court in the case of WCC Ltd v. Batalha [2006] 9 NWLR (Pt. 986) 595 at 621 – 622 listed various situations that would make some contracts incapable of enforcement thus – (a) Both knew that the performance of the contract necessarily involves the commission of an act which was to their knowledge criminal. (b) Both parties knew that the contract is intended to be performed in a manner which, to their knowledge is legally objectionable in that sense. (c) The purpose of the contract entered by the parties should be seen to be legally objectionable and that notwithstanding such knowledge of that they still went with the contract. (d) Both parties participate in performing the contract in a manner which they know to be legally unacceptable. That the performance of Exhibits C2 and C3 is legally objectionable, urging the Court not to aid the claimant in the enforcement of a contract, which would have led to the performance of an illegal act. Closely related to the above submissions is the defendant’s submission that Exhibits C2 and C3 are contrary to public policy as the agreements pose an unreasonable restraint of trade. It is the defendant’s submission that this is an appropriate case to apply the principle of “ex turpi causa non oritur actio”. The principle is to the effect that a party does not have a right to enforce the performance of an agreement founded on the consideration that is contrary to public policy. That it is established that the duration of the type-rating license is six months. An initial license has to be renewed by subsequent trainings every six months. It is, therefore, the defendant’s submission that any training bond agreement, which seeks to protect the investment of the sponsor, should be binding for the duration of the license or certificate obtained. An agreement which seeks to bind a person for periods of time after the benefit of the training has been expended is not only unreasonable and unconscionable but also exploitative and against public interests. The defendant went on that he had in paragraph 5l of his witness statement on oath stated that “the claimant is the only airline in the industry that seeks to bind staff by its Training Bond to work for 12 to 36 months for it in consideration for a training that allows the pilot to fly for only six months”. The defendant had further stated in paragraph 5s of his witness statement on oath that the training bonds were “always rushed to staff on the day of departure for the training and hardly anyone reads the contents because the industry standard is that you bond to serve for the duration of the license the training provides, which is six months”. That the claimant in an attempt to deny the industry standard had tendered before the Court Exhibit C9 which is the Contract of Employment between Fresh Air Limited (another airline and the defendant’s previous employer) and the defendant. The said Exhibit C9 contains a training bond provision in its clause 15 headed ‘Training’ which states as follows – The Company shall be responsible for the recurrent training of the Employee on the expiration of his/her Licence and the Employee shall be bound to remain in the service of the Company for a minimum of six months thereafter to discharge the liability accrued in consequence of his training. A breach of this clause shall entitle the Company to a refund of the cost incurred in the training of the Employee on pro-rata basis. It is the defendant’s submission, therefore, that it is clearly established that the industry standard for a training bond agreement in the aviation industry is the duration of the license, which is six months. This is established by the claimant’s own evidence. This is not only logical but accords with the principles of fairness and equity. That the Court of Appeal in the case of Tanksale v. Rubee Medical Centre Ltd [2013] 12 NWLR (Pt. 1369) 548 at 572 relying on the book Sagay: Nigerian Law of Contract 2nd Edition defined the term trade restraint thus – A contract in restraint of trade is one in which a party covenants to restrict his future liberty to exercise his trade, business or profession in such a manner and with such persons as he chooses. Prima facie such contracts are void. But where it can be established that such restrictions are justifiable in the circumstance as being reasonable from the points of view of the parties and the public, they are valid and binding. To the defendant, a training bond agreement is justifiable and acceptable all around the world as it is recognized that a sponsor should be allowed to protect its investment. Where, however, in an alleged bid to protect the investment made, a sponsor seeks to bind a person for periods longer than the certificate or license procured on the training, then it is unjustifiable and unreasonable. It is in these circumstances that the defendant urged the Court to refuse to enforce Exhibits C2 and C3. In concluding this issue, the defendant commended to the Court the reasoning of the Supreme Court in Onwuchekwa v. NDIC [2002] 5 NWLR (Pt. 760) 371 at 391 where Ayoola, JSC stated thus – It is to be observed that public policy is at the root of the defence of illegality. A decision to allow the defence or permit recovery sometimes cannot be divorced from public policy considerations. Sometimes it is expedient to consider whether to allow the plaintiff’s claim will be contrary to public policy or whether to deny the claim on the ground of the defence of illegality will occasion him such an injustice as to be contrary to another aspect of public policy which is that a citizen should not without cause be deprived of his entitlements. The court is not precluded from weighing the competing aspects of public policy and, after so doing, from deciding which one should be the overriding public policy in each particular case. That in this suit, the defendant worked for the entire duration of the license (October 2007 to March 2008) and had in fact stopped flying the B1900 aircraft due to the complaints made by Dr. Babalakin, months before he resigned from the employment of the claimant. That this fact, which he stated in paragraph 5w – x of his witness statement on oath, was not denied by the claimant. It is, therefore, deemed admitted by the claimant, referring to Okoebor v. Police Council [2003] 12 NWLR (Pt. 834) 444 at 483. That the claimant did not, therefore, lose anything due to the resignation of the defendant and the claimant by instituting this action only seeks to eat its cake and have it. That after being duly served with the license obtained by the training, it seeks to have the defendant pay for the alleged cost of the training. That it is pertinent to note that the claimant did not put before the Court any evidence to show the cost of the training, urging the Court to refuse to enforce the terms of the training bond agreements. The defendant proceeded to submit that he did not sign the training bond agreement dated 30th April 2008 (Exhibit C3). That he stated in paragraph 5v of his witness statement on oath that he did not sign the training bond agreement dated the 30th April 2008 as it was Dr. Babalakin who paid for both the initial training and the ‘recurrency’ on the SAAB 340 aircraft and there was thus no basis for a training bond. It is the defendant’s submission that the ‘Respondent’ (sic) having not properly rebutted this evidence is deemed to have admitted it. The response given by CW in her further witness statement on oath deposed to on 25th September 2013 is vague and inconclusive and at best hearsay evidence and thus inadmissible and incapable of rebutting the direct evidence of the defendant. That it is noticeable that CW did not state that she saw the defendant sign Exhibit C3 or that it was done in her presence. That the law is clear that evidence should not be evasive. Oral evidence must be direct, referring to section 126 of the Evidence Act 2011 and Tsemudiara v. Messrs FGS & Co. Ltd [2008] 7 NWLR (Pt. 1085) 84 at 103. To the defendant, it is also very pertinent to note that the defendant was not cross-examined on this issue. That the effect of not cross-examining a witness on a material point is well settled. The position was clearly stated by the Supreme Court in Cameroon Airlines v. Otutuizu [2011] 4 NWLR (Pt. 1238) 512 at 545, where it held thus – The respondent was not cross-examined on the loss of $20,000. The position of the law is well settled that where a party testifies on a material point, in this case, the loss of $20,000, the appellant ought to cross-examine him, or show that his testimony is untrue. Where, as in this case neither was done, the court would readily conclude that the adverse party, in this case the appellant does not dispute the fact. Also, in Adesule v. Mayowa [2011] 13 NWLR (Pt. 1263) 135 at 170, the Court of Appeal held thus – The lower tribunal cannot be faulted in their finding that the evidence of RW6 and RW7 remained unchallenged. I agree with counsel for the 1st respondent that the effect of failure to cross examine a witness on a particular matter is a tacit admission of the truth of the evidence of the witness not cross-examined. Further referred to the Court is Eresia-Eke v. Orikoha [2010] 8 NWLR (Pt. 1197) 421 at 448; and NSITFMB v. Klifco Nig. Ltd [2010] 13 NWLR (Pt. 1211) 307 at 332, the Supreme Court held thus – The law is settled that evidence that directly affects the matter in contention and that is neither attacked nor successfully discredited is good and credible evidence that can be relied upon by the court. The defendant thus urged the Court to rely on his uncontroverted evidence that he did not sign Exhibit C3. The defendant continued that the claimant who seeks to enforce the terms of Exhibit C3 has the burden to prove that the signature on the said exhibit belongs to the defendant. That it has not discharged this burden, citing Odudu v. Onyibe [2001] 13 NWLR (Pt. 729) 140 at 159, where the Court of Appeal held as follows – I hold the strong view that the respondent having denied his signature on Exh AO. 3, the onus of proof lies on the appellant who seeks to rely on it, to prove the genuineness of the receipt and the respondent’s signature thereon. This he failed to do. The receipt is therefore of no probative value as evidence to establish a contract of agency fee between the parties. It is thus the defendant’s submission that no probative value ought to be attached to Exhibit C3 for the purpose of establishing a contract between the claimant and the defendant. In any event, that upon a review of the documents before this Court, this Court can only find that the defendant did not sign Exhibit C3. That there are seven documents before this Court, which the defendant has signed: Exhibits C1 (Direct Service Contract), C2 (Training Bond Agreement dated 30th April 2008), C4 (defendant’s letter of resignation), Exhibits C7 and C8 (defendant’s letters to the claimant), Exhibit D8 and the witness statement on oath deposed to on 3rd July 2013. These documents were signed at different times and the signature of the defendant is consistent in all the documents. That this Court is empowered to, on its own, pursuant to section 101(1) of the Evidence Act 2011 compare the signature in the different documents to determine due execution, citing Olowu v. BS Ltd [2010] 2 NWLR (Pt. 1178) 310 at 331 and Okamgba v. Eke [2009] 16 NWLR (Pt. 1166) 1 at 17. He then submitted that a comparison of the documents listed above with Exhibit C3 will clearly show that the defendant did not sign Exhibit C3. The defendant accordingly urged the Court to find that the he did not sign Exhibit C3 and cannot, therefore, be bound by it. In conclusion, the defendant urged the Court to dismiss the claims of the claimant. On issue 2 i.e. whether the defendant/counterclaimant is not entitled to his counterclaim, the defendant contended that he deposed to the fact that he was approached by the proprietor of the claimant, a Captain Edward Boyo to fly another aircraft apart from the SAAB 340 aircraft which he was engaged to fly, and he agreed to do so on the promise that he would be paid N500,000.00 per month for the extra service of flying the aircraft. CW in her witness statement on oath stated that the Direct Service Contract does not limit the work which the defendant was employed to perform and it was thus within the purview of the defendant’s contract for the claimant to assign him other tasks including operating any of the claimant’s aircraft fleet. It is the defendant’s submission that the above evidence is merely argumentative and does not directly controvert his evidence. That it does not deny that there was such an arrangement between the defendant and Captain Boyo on behalf of the claimant but merely argues that the Direct Service Contract does not envisage such. It is the defendant’s submission that the claimant has not successfully controverted his evidence. That Captain Boyo who is the Managing Director of the claimant and with whom the arrangement took place is the only person that can controvert the existence of such arrangement by oral testimony. In any event, that Exhibit D2 (the Direct Service Contract) shows that the remuneration agreed upon is restricted to the SAAB 340 aircraft. That clause 4 of the Service Contract puts the remuneration of the defendant at the rate of N400,000 per month as well as a monthly guaranteed flight allowance of 30 hours at the rate of N3,500 per hour. That the scale of fees attached to the Direct Service Contract, which is a breakdown of the remuneration does not differ for the amount stipulated in clause 4 of the contract. The scale clearly has as its heading ‘SAAB 340 SCALE’ and shows in the third row the contract fee (N400,000.00) and in the fourth row the F.A. (hourly) (N3,500.00) and in subsequent rows other allowances. By the row, it shows the exact amount the defendant would be paid for 30 hours. The 12th row shows the amount if the defendant got 40 hours, etc. It is thus clear that the remuneration in the Direct Service Contract was in respect of the SAAB 340. That the claimant has not denied that it employed the defendant for the purposes of flying Dr. Babalakin’s aircraft (the SAAB 340 aircraft). That CW in her further witness statement on oath deposed to on 25th September 2013 admitted this when she stated in paragraph 3 that: “Following the Claimant’s acceptance to manage Dr. Wale Babalakin’s SAAB 340 aircraft, the Claimant formally recruited the Defendant who equally flew the aircraft for Dr. Babalakin whilst in the employment of Fresh Airline”. That it is thus clear that the Direct Service Contract was a mere formality and that the relationship created between the claimant and the defendant via the Direct Service Contract was in connection to the SAAB 340 aircraft owned by Dr. Babalakin. The defendant went on that the agreement between him and Captain Boyo on behalf of the claimant in respect of the B1900 aircraft, therefore, created a new and separate agreement, which this Court has the power to enforce. That in view of the fact that the claimant paid the defendant a minimum of N505,000.00 per month for flying the SAAB 340 aircraft, the agreement to pay him N500,000.00 per month to fly the B1900 aircraft is not unreasonable. It is, therefore, the defendant’s submission that he is entitled to be paid the sum of N2,500,000.00 being the agreed remuneration for flying the Beech 1900 aircraft from October 2007 to March 2008. To the defendant, this Court has the duty to give effect to agreements including oral agreements. That while it is preferable that agreements be in writing for record purposes, the law is trite that oral agreements are equally enforceable, referring to Metibaiye v. Narelli Int’l Ltd [2009] 16 NWLR (Pt. 1167) 326 at 349, where the Court of Appeal held thus – The fact that an agreement is not in writing but made orally does not make it unenforceable. An oral agreement is backed by the same force of law as a written agreement where such an oral agreement has been satisfactorily proved in court. Also, that in UTC (Nig.) Plc v. Philips [2012] 6 NWLR (Pt. 1295) 136 at 163, the Court of Appeal per Peter-Odili, JCA (as she then was) held thus – Also unacceptable, is the position of the appellant that since the agency or agreement to that effect was not reduced in writing there was no valid agreement or contract. This is because it is even elementary that agreement or contract can be made and given effect to whether in writing, or verbally done or even established by the conduct of the parties from which the agreement can be inferred. In the absence of clear and direct evidence disproving the existence of the oral agreement, it is the defendant’s submission that it ought to be enforced by this Court, urging the Court to do so. The defendant continued that he also gave evidence of how the claimant kept a portion of his salaries from March 2006 to April 2008. That as stated above, the claimant has admitted that the defendant was flying Dr. Babalakin’s aircraft while the aircraft was under the management of Fresh Airlines before moving the aircraft under the management of the claimant. The defendant stated that his salary at Fresh Airline had been increased from N560,000.00 to N1,024,000.00 per month and he was thus concerned that his salary under the claimant was N505,000.00. That when he brought the matter before the owner of the aircraft, he was informed that by the arrangement made with the claimant, he ought to have been receiving N644,000.00 more per month. It is in light of this that the defendant submitted that he is entitled to the shortfall of his monthly salary for the period of 26 months in which it was denied him. He also submitted that he is entitled to the sum of N40,000.00 for transferring the B1900 rating from his American FAA License to his Nigerian License at the directive of the claimant. He accordingly urged the Court to grant his counterclaim especially as the claimant has not put any cogent and direct evidence before the Court to dispute same. In conclusion, the defendant urged the Court to dismiss the claims of the claimant and grant the counterclaim as prayed by the defendant. CLAIMANT’S SUBMISSIONS In reaction, the claimant framed two issues for the determination of the Court, issues that are merely a rephrasing of the issues framed by the defendant. The two rephrased issues are – 1. Whether the Training Bonds (Exhibits C2 and C3) constitute valid and enforceable contract and if this is in the affirmative, whether the defendant by his resignation was not in breach of the said Training Bonds entitling the claimant to remedy. 2. Whether the defendant/counterclaimant is entitled to the reliefs sought in his counterclaim. Regarding issue 1, the claimant contended that it is in evidence that the defendant was in employment with the claimant. While the said employment was subsisting, the defendant freely and willingly without any undue influence, force or coercion entered into two separate training bonds, to remain in the employment of the claimant for thirty-six months on a cumulative basis. That the said bonds are also not vitiated by any mistake, misrepresentation, fraud, duress, illegality or any other vitiating element; and it is also clear from the facts before the Court that both the claimant and defendant both had the legal capacity to enter into the contracts. The claimant continued that it is in evidence that the defendant is a man of full age, he is educated, he is not an illiterate and he has the capacity (mentally and otherwise) to understand the contents of any document he is signing. As such he is taken to be fully aware of the obligations that arise out of any contract he executes. What is more, the bonds signed by both parties were backed up by consideration. The claimant paid for the training in consideration that the defendant would stay in the employment of the claimant for at least the time stated in bonds. That it is, therefore, necessary to consider how a Court treats a contract freely executed between parties. That in Okubule v. Oyagbola [1990] 4 NWLR (Pt. 147) 723, the apex court has held that the five determinants for a valid contract to exist in law are (a) offer, (b) acceptance (c) consideration (d) intention to create legal relationship and (e) due capacity to enter into the contract. That the Supreme Court has held in a plethora of cases that once the terms of a contract are clear and unambiguous, a court of law must enforce such a contract and not make one for the parties, citing Bilante International Limited v. NDIC [2011] 15 NWLR (Pt. 1270) 407 at 436, DHL International (Nig) Ltd v. Chidi [1994] 2 NWLR (Pt. 329) 720, Union Bank Nig Ltd v. Ozigi [1994] 3 NWLR (Pt. 333) 385, African Reinsurance Corp v. S. Fatanye [1986] 1 NWLR (Pt. 14) 113, Best (Nig) Ltd v. Black Wood Hodge (Nig) Ltd & 2 ors [2011] 5 NWLR (Pt. 1239) 95 at 117, Oyenuga v. Provisional Council of the University of Ife [1965] NMLR 9, BFI Group Corporation v. BPE [2012] 18 NWLR (Pt. 1332) 209 at 238 – 239 and Afrotech Services Nig Ltd v. MA & Sons Ltd [2002] 15 NWLR (Pt. 692) 730 at 788. To the claimant, the two training bonds, having been freely executed between the two parties, which were both supported by consideration, are therefore binding and are enforceable, and the Court must not only respect the sanctity of these contracts, but must give effect to them without writing into it what the parties did not intend. That it is clear that the defendant clearly understood the contents and the terms of what he was signing at the time he signed the contract. Under cross-examination he testified that he is of full age and he was educated enough to understand and comprehend what he was signing. It is the submission, therefore, of the claimant that by resigning from the employment of the claimant, the defendant in accordance with the bonds is obligated to pay the cost of the training he attended. That the resignation without payment of the cost of training constitutes a breach of the bond agreements. That in Oceanic Bank International (Nig) Limited v. G. Chitex Industries Ltd [2000] 6 NWLR (Pt. 661) 464, the Court of Appeal adopted the definition of breach of contract in the Black’s Law Dictionary, 5th Edition at page 171 thus: “Breach of contract is failure, without legal excuse, to perform any promise which forms whole or part of a contract…Unequivocal, distinct and absolute refusal to perform agreement”. To the claimant, by this definition, the refusal or failure of the defendant without any legal or lawful excuse to perform the promise in the bonds is clearly a breach of the bonds by law, for which an action will lie against the defendant for the breach, urging the Court to so hold. The claimant went on that learned counsel for the defendant argued that the bonds (Exhibits C2 & C3) are unenforceable agreements by reason of the fact that it will involve commission of a legal wrong and it will be an unreasonable restraint of trade and, therefore, contrary to public policy. It is the submission of the claimant that these rather puerile defences have no legal basis in the circumstances and this Court should not permit such ludicrous defences. The claimant continued that it is necessary to set out the nature of training bonds. That generally, it may be tempting to associate a training bond with a restraint of trade clause. However, they are different. A restraint of trade clause was defined in the popular English case of Petrofina (Great Britain) Ltd v. Martin [1966] Ch. 146, where Diplock LJ defined a restraint of trade as – A contract in restraint of trade is one in which a party (the covenantor) 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. To the claimant, a contract in restraint of trade in its ramifications seeks to restrict the employee from doing one or more of the following – a. Disclose and/or use information considered confidential or classified as a trade secret or considered a proprietary property of the employer, which use and/or disclosure would be considered as injurious to the employer and to the advantage of the [former] employer’s rivals. b. Set up his own business in competition with his [former] employer, or accepting a position with one of the [former] employer’s competitors. c. Solicitation of [former] employer’s customers. d. Poaching employees of [former] employers. The claimant went on that the provisions of restraint of trade clauses or covenant in restraint of trade, forbid an employee from carrying out his professional carrier with a third party employer or to divulge confidential information that would be injurious to the former employer or to set up a competition or to poach an employee of former employee (sic). That the main basis for this restriction is to protect the confidential information or information which is crucial to the business of the employer from being used to the detriment of the former employer. The essence is to protect the business of the former employer from being jeopardised by the information in the possession of the former employee, referring to Mitchel v. Reynolds (1711) 1 P. WMS. That the restrictive covenant must pass the reasonableness test, citing Nordenfeldt v. Maxim Nordenfeldt Guns and Ammunition Company (1894) AC 535 at 565. That it is also necessary to state that covenants in restraint of trade affect the freedom of the employee to be employed or trade for a number of years and within a defined territory while the covenant is subsisting, and as such the Court is called upon to determine the reasonableness of the clause in terms of the territory it covers and the length of time which the employee would be required not to be employed or carry out a trade at all. However, that training bonds are different. They are not designed to protect any information. They do not forbid the employee from working or trading or from being employed. A training bond only requires that after the employer has incurred cost to train an employee, the employee shall remain in the employer’s employment for a defined term or if the employee decides to leave the employment, the employee will repay the cost of training. To the claimant, the first point to note is that training bonds are not strange to Nigerian labour law and have been enforced by our Courts. That in one of the few reported cases, the High Court of Lagos State in the case of Attorney-General of the Federation v. Awojoodu [1973] 3 UILR 4 enforced such a clause. In that case which was cited at pages 34 – 35 of the book Nigerian Law of Contract by Professor Itse Sagay, the plaintiff government offered a scholarship to the defendant to study accountancy in the United Kingdom. The plaintiff was required to sign a bond which contains a provision that the beneficiary of the scholarship must serve the federal government for at least five years after the completion of his studies or be liable to refund the cost of his scholarship. Although the defendant tried to evade his obligations by refusing to sign the bond throughout the duration of his study which was financed by the federal government, it was nevertheless held that he was bound to refund the cost of his scholarship when he refused to observe the stipulations of the bond and the federal government sued to recover the cost of his sponsorship. The claimant continued that learned counsel has relied heavily on cases relating to illegality and argued that by requiring the defendant to stay beyond six months when his licence has expired then it would be illegal for the defendant to continue to fly the aircraft. That learned counsel by this argument is trying to mix up the facts before the Court in order to justify the defendant’s breach. That the facts before the Court from the cross-examination of both the claimant’s witness and the defendant are that – a. The Pilot licence obtained by a Pilot is a general licence and does not enable a pilot to fly an aircraft unless the said pilot is type-rated by training on the particular aircraft he is employed to fly. b. A pilot has to be type-rated on an aircraft in order to fly that aircraft. c. The type-rating licence inures to the benefit of the pilot for life and can use it to fly that aircraft. d. There is a recurrent training that is required of pilots every six months. To the claimant, there is no issue as to whether any of the licences has expired, and as such the issue is totally irrelevant to the issue of breach of the training bonds. The issue at hand is a very simple one. The defendant has been sent on training in the United States at the expense of the claimant. The consideration for such training is to have the defendant stay in the employment of the claimant for such considerable time so that the defendant would have the benefit of the training. However, the issue before the Court is whether by resignation, the defendant has not deprived the claimant the benefit of that training which now inures to his benefit for life. It is the claimant’s submission that it is preposterous to argue that the pilot licence is renewable after six months and, therefore, it is illegal to keep the defendant in employment for any time longer than six months. That assuming without conceding that the license is renewable for six months, the claimant then asked whether there is any evidence to show that the claimant prevented the renewal of that license to invoke any illegality. The claimant answered in the negative. That the argument that the defendant can only fly the aircraft for six months during the currency of his general licence is ridiculous. That there is no evidence before the Court that the general licence has expired. Even if it has expired, there is no allegation talk less of evidence that there is a refusal on the part of the claimant to renew the said general licence. That these defences are only calculated to escape the liability of the enforcement of the bonds. The claimant referred the Court to section 7(6) of the National Industrial Court (NIC) Act 2006 which provides – The Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact. That it is very evident in this case that training bonds are recognised and enforced in many jurisdictions around the world. The aim of such a contract is to prevent a situation where highly skilled employees like pilots would not leave the employment of their employers after taking benefit of specialised training at huge costs to their employers. The employer would be justified in ensuring that it puts in place reasonable safeguards to protect its interest from poaching of the employees by competitors after expending huge amounts on training. That in the recent case of Edward Miles v. Jet Centre Limited T/A The Private Jet Company (Case No. 12/02 delivered on 6th November 2012), the Isle of Man Employment Tribunal had to consider whether an employer could recover the costs of training an employee who was subsequently dismissed fairly from his employment. To the claimant, the facts of the case are as follows. The claimant in the case, Mr. Miles, was employed by Jet Centre Limited (‘the employer’) as a private commercial pilot. The employer paid for Mr. Miles to receive specialist training to fly the particular aircraft that the employer operated. There were two important contractual documents, a contract of employment (the contract) and a training bond (the bond). The bond contained a clause which provided that Mr. Miles would repay the employer’s training costs if he left employment within a given timeframe. Mr. Miles accepted that the bond formed part of the contractual documents relating to his employment. Considering both documents together, the Employment Tribunal held that there was an implied term in the contract that if the claimant was fairly dismissed he must repay the training costs, or part thereof, as per the terms of the bond. That in reaching its conclusion, the Tribunal noted that the employer had invested a considerable amount of money and time in order to train Mr. Miles to fly a specific aircraft. Further, the Tribunal referred to the fact that Mr. Miles was now working for a rival company flying the same aircraft and also that the employer would have no future benefit having paid to train Mr. Miles. It is the further submission of the claimant that it is unfair, unconscionable and against all known principles of the mutuality and freedom of contract for a party who fully understands what he signed (without force or coercion) to be allowed to turn around from the obligations created under the agreement. Referring to Awojugbagbe Light Industries Ltd v. Chinukwe [1995] 4 NWLR (Pt. 390) 379 at 426, the claimant submitted that the Supreme Court and other appellate Courts have held several times that – Apart from the principle of law involved in this case, it is morally despicable for a person who has benefited from an agreement to turn round and say that the agreement is null and void. To the claimant, parties having agreed that training bonds such as the one in this case are enforceable, the most pertinent issue is that of its reasonableness as raised by the defendant. That the training bonds in this case are not unreasonable. This is because the length of time the defendant was required to serve the claimant is in line with Court decisions in similar cases as well as industry practice and is also necessary for the claimant to take benefit of the training (referring to Attorney-General of Federation v. Awojoodu, supra). That counsel to the defendant clearly showed a misconception of the law with regards to the test of reasonableness of a restrictive covenant when he argued that the bond is illegal. That there is nothing illegal in the contract of bonds as an employee is only required to repay the cost of training. In any event, the defendant had the freedom to read the contract and inform his lawyers to interpret same as he admitted this under cross-examination. That there was no evidence of coercion or duress by which the claimant exerted pressure on the defendant, and as such nothing vitiates the bond and the Court is urged to dismiss the defence on this ground. The claimant went on that learned counsel to the defendant further argued that the defendant did not in fact sign the bond. It was further argued on behalf of the defendant that the training to fly the SAAB 340 aircraft was paid for by Dr. Babalakin. The claimant then submitted that this line of arguments falls flat to the extent of its irrationality. First, that the defendant has been alleged to breach two training bonds. Exhibit C2 the first training bond dated 17th August 2007 was to attend the B1900 Pilot training initial training course at the La Guadia Airport New York USA. That training cost N3,092,232.39 (Three Million and Ninety-Two Hundred (sic) and Thirty-Two Hundred Naira, Thirty-Nine Kobo). That the bond period was for thirty-six (36) months. The second training was the SAAB 340 ‘recurrency’ training at the Panam International Flight Academy Minnesota USA. The cost was N1,350,000 (One Million, Three Hundred and Fifty Thousand Naira) and the bond period was for twelve months. That the facts before the Court show clearly that the bonds were not mainly for the SAAB 340 only, but also for the B1900. In any event, the SAAB 340 course was a ‘recurrency’ course. Therefore, that Dr. Babalakin had sent the defendant for the initial training is totally irrelevant. Secondly, that learned counsel stated that the defendant did not sign Exhibit C3, the bond dated 30th April 2008. Yet, the same defendant under cross-examination stated clearly that he read both bonds and understood them fully. He also testified that he had the option of refusing to go on the training bonds, but decided to attend. That the law is clear that he who alleges must prove. The allegation that the defendant did not sign Exhibit C3 is an allegation of forgery. No proof was led apart from the sweeping denial that the defendant did not sign the said Exhibit C3. That it would amount to trying to kill an ant with a sledge hammer to cross-examine on this issue for two reasons. Firstly, no evidence of the fact that the signature was forged was led. This is a criminal allegation that must be proved beyond reasonable doubt. No such proof was led to buttress the allegation, referring to Audu Otukpo v. Apa John & anor [2012] 7 NWLR (Pt. 1299) 357 at 374 and 383 where the Supreme Court held that an allegation of crime in a civil proceeding must be proved beyond reasonable doubt. In any event, that the defendant did not deny attending the training. That the inevitable legal conclusion is that the terms of attending the training was accepted by conduct when the defendant attended the training. That the law is very clear that a contract could be express or implied by conduct of the parties, referring to Nigerian Bank for Commerce and Industry v. Integrated Gas (Nig) Ltd & anor [1999] 8 NWLR (Pt. 613) 119 at 127 where the Court of Appeal stated that – Indeed, short of making an agreement for the parties, the law allows a court to infer the existence of a contract by the conduct of the parties in the circumstances of each case. It is the claimant’s submission, therefore, that having attended the training for both the SAAB 340, the defendant cannot be heard that he did not sign the bond, when he does not deny the knowledge of the existence of same. In any case, that he did not prove or lead any evidence to prove that the signature on Exhibit CW3 is forged. In the final analysis, that the defendant clearly breached the terms of the bond. Having done so, the training bonds (Exhibits C2 and C3) state clearly the remedy for the breach, which is the repayment of the amount paid for such training. The parties having agreed the quantum of the damages payable, which is the natural consequence of the breach, the Court is urged to apply the rule in Hadley v. Baxendale (1845) 9 Exch. 341. The principles are that damages in respect of breach of contract should be as such as – (i) may fairly and reasonably either arising naturally i.e. according to the usual course of things from such breach of contract itself, or (ii) may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. That this rule has been given judicial endorsement by the Supreme Court in a plethora of decisions such as Stephen Okongwu v. NNPC [1989] 4 NWLR (Pt. 115) 296 at 306 – 307. The claimant then submitted that the Court should compel the defendant to pay the refund of the trainings he attended as agreed by the parties as the natural consequences of the breach, urging the Court to so hold. On issue 2 i.e. whether the defendant/counterclaimant is entitled to the reliefs sought in his counterclaim, the claimant decided to treat each of the main counterclaims of the defendant. Regarding the claim for N16,744,000.00 being the shortfall in the salaries, in paragraph 4(g) of the statement of defence and paragraph 5(h) of the witness statement on oath, that the defendant claimed that his salary in Fresh Air Limited was increased from N560,000 to N1,024,000 and it was agreed with the claimant that he would be paid the guaranteed sum of N1,024,000. To the claimant, the evidence before the Court, however, shows that Exhibit C1, the Direct Service Contract of the defendant, was identified by the defendant as the only document regulating his contract of employment. The remuneration for the defendant was put at N400,000 (Four Hundred Thousand Naira) less withholding tax. Flight allowance of 30 hours was put at the rate of N3,500. That the defendant’s contract of employment with Fresh Air was also tendered before the Court. The remuneration of the defendant was stated as N300,000 per month. An additional N4,000 per flight day and N5,000 after check out was provided. Also, there is a N3,000 per hour in excess of 70 hours flown in a month. The claimant went on that under cross-examination, the defendant could not produce any evidence of the increase in his salary to N1,024,000. That he also could not show any documentary evidence to prove his claim that the claimant agreed to pay the increased salary of N1,024,000 except his oral or viva voce testimony to that effect. That the law is clear beyond any shadow of doubt that when the terms of a contract are reduced into writing, only that document or in relevant cases, the secondary evidence is admissible and oral evidence is inadmissible to vary or modify the said agreement, referring to section 128(1) of the Evidence Act 2011, Cargill Ventures Ltd v. Coastal Services Limited [2012] 9 NWLR (Pt. 1304) 60 at 81, and Ogundele v. Agiri [2009] 18 NWLR (Pt. 1173) 219, the Supreme Court held that – It is trite law that oral evidence is inadmissible to contradict the contents of a document. In other words oral testimony cannot be used to state the content of a document. S. 132(1) of the Evidence Act; and no extraneous matter can be imported into the record of proceedings. See Union Bank of Nigeria Ltd v. Ozigi [1994] 3 NWLR (Pt. 333) 385; see also Nnubia v. A.G. Rivers State [1999] 3 NWLR (Pt. 593) 82. To the claimant, the inevitable extrapolation from this is that there is no evidence to support the claim of the defendant’s counterclaim that he is owed any shortfall of his salaries. That the law is trite: “where a trial is conducted on the basis of pleadings, all relevant allegation in the pleadings must be proved by evidence, and such evidence must be in line with pleadings. In other words, the plaintiff has to prove his case as pleaded and must prove the truth of the contents of the paragraph of the pleading in support of the reliefs sought in other to obtain judgment. If the plaintiff fails to prove his case on the pleading to the satisfaction of the court, the case crumbles”, referring to Nnamdi Ebo v. Pius Anadi [2012] 8 NWLR (Pt. 1301) 69 at 83 and Alamieyeseigha v. Igoniwari (No. 2) [2007] NWLR (Pt. 1034) 524 at 888. That the case of the defendant/counterclaimant on his pleading is that he is entitled to N1,024,000 as monthly salary. That there is no evidence to support that pleading that there was an agreement to pay that amount as salary. Having failed to prove the entitlement to such an amount, that claim/relief must crumble and fail. On account of the failure to prove this relief, the consequential relief for interest thereon also fails. On the claim for N2,500,000.00 being the total of the Five Hundred Thousand Naira per month promised the counterclaimant for extra services especially for the flying of the claimant’s Beech 1900 for five months from November 2007 to March 2008, the claimant contended that the defendant/counterclaimant alleged in paragraph 4(n) – (s) that he was only employed to fly the SAAB 340 aircraft. That for him to fly any other aircraft, the claimant undertook to pay the cost of such services at N500,000 per month for such extra services. Like the other claim, the counterclaimant under cross-examination admitted that no other document governed his employment apart from Exhibit C1. Clause 1 of Exhibit C1 provides as follows – 1. Job Title You shall serve the company in the position of a CAPTAIN. The job title does not limit the work which you are employed to do and you may be required to do any work which the Company from time to time requires including transfer and work for the Company’s subsidiaries, holding and other associated companies. To the claimant, this paragraph is crystal clear that the job title does not limit the work to be performed by the counterclaimant. The counterclaimant may be required to do such things as required by the claimant or the subsidiaries or holding companies affiliated to the claimant. Under cross-examination, that the defendant was unable to show anywhere in Exhibit C1 where it was stated that he would only be required to fly only the SAAB 340 aircraft. Therefore, it is per force true that the requirement to fly the B1900 was part of the duties of the defendant. What makes this claim even more laughable is the fact that the same B1900 (which is the Beech comber 1900) is the same aircraft which the claimant paid N3,092,232.39 to train the defendant/counterclaimant to fly and bonded the counterclaimant by Exhibit C2. That it is, therefore, ludicrous that the defendant would turn around to say that there is a special remuneration for the performance of the work for which he was sent on training. Finally, that the written agreement between the parties is Exhibit C1 which does not provide for any extra payment for flying the B 1900 as claimed by the counterclaimant. In effect, just like the 1st claim above, that the said relief has not been supported by any scintilla of evidence. The claimant then urged the Court to dismiss the claim and its consequential claim for interest, referring to Nnamdi Ebo v. Pius Anadi (supra) and Alamieyeseigha v. Igoniwari (No. 2) (supra). On the claim for N40,000 being cost of transferring the counterclaimant’s B1900 rating from his American FAA Licence to his Nigerian license, the claimant submitted that there is no evidence supporting this head of claim apart from the bare viva voce of the defendant in paragraph 5(r) of the witness statement on oath. That apart from this bare allegation, there is no evidence to support this claim and is, therefore, liable to be struck out, referring to Nnamdi Ebo v. Pius Anadi (supra) and Alamieyeseigha v. Igoniwari (No. 2) (supra). Conclusively, regarding all the three claims the defendant/counterclaim seeks from the Court, the claimant submitted that it is apparent that the defendant/counterclaimant relied heavily on certain oral agreements which are totally at variance with the written agreements contained in Exhibit C1. By this, that the defendant/counterclaimant suggests that there are oral agreements which entitle him to these three claims in his counterclaim. However, that the law is clear that although oral agreements are binding, however, a party who seeks to rely on such oral agreement (because of its peculiar nature) must prove the said oral agreement to the hilt and to the satisfaction of the Court by credible evidence, referring to Odutola & anor v. Papersack (Nig) Ltd [2006] 18 NWLR (Pt. 1012) 470 at 491, where the Supreme Court held as follows – I think this is a proper place to take the evidence of oral agreement by DWI. He said in evidence in chief at page 186 of the record. In 1982, we entered into an oral agreement with the landlord to let the premises yearly from 1st June to 31st May at an annual rent of N200,000.00. Can this evidence pass for its content of oral agreement of a yearly tenancy to vitiate the termination of the lease in 1980? Can the bare ipse dixit of a witness of the existence of oral evidence turn around in his favour in the face of clear documentary evidence to the contrary? I have a few more questions to ask but I can stop here. I expected DW1 to go a bit deeper in the evidence of oral agreement if the respondent really had such evidence. In this regard, evidence of where and when the oral agreement was made ought to have been led. Similarly, there ought to have been evidence of who said what and a clear statement that the oral agreement vitiated or updated the lease. While oral agreement has the legal capacity to re-order or change the contents of an earlier written agreement, to satisfy the basic requirements of an agreement, the party alleging such agreement must prove it. See section 135, 136 and 139 of the Evidence Act. See also Broadline Ent. Ltd v. Monetary Maritime Corp. [1995] 9 NWLR (Pt. 417) 1; Chime v. Chime [1995] 6 NELR (Pt.404) 734; Usmand v. Ram [2001] 8 NWLR (Pt. 715) 449; Attorney-General of Lagos State v. Purification Tech. (Nig.) Ltd [2003] 16 NWLR (Pt. 845) 1; Archibong v. Ita [2004] 2 NWLR (Pt. 858) 590. It is the generally accepted practice that tenancy agreement is made in writing. In order to play safe I do not want to say that it is invariably made in writing; but I can say that it is mostly made in writing. Accordingly, where a party alleges the existence of an oral agreement, which is a unique method and procedure; he must give credible evidence as to the modalities of such agreement. In other words, a party alleging an oral agreement is duty bound to prove such an agreement to the hilt. To the claimant, taking a hint from what the Supreme Court is saying in the above case, is it safe for the Court to rely on the mere ipse dixit of the defendant/counterclaimant on the existence of these oral agreements to give him all these amounts claimed? Shouldn’t the defendant/counterclaimant have given more particulars about who said what exactly, at what time and in whose presence such oral agreements were made? That mere allegation of the existence of the oral agreements when there is in evidence an abundance of documentary evidence is to tell the Court to disregard cogent documentary evidence for a nebulous and sweeping oral statement which was not proved by any evidence. That this Court should not encourage such, urging the Court to so hold. To further show that the defendant/counterclaimant’s testimony is full of inconsistencies, the claimant submitted that the defendant/counterclaimant alleged and testified that his contract with Fresh Air Limited (under Dr. Babalakin) suggested that the claimant was an agent of Fresh Air Limited. The defendant/counterclaimant, however, never showed that agency by any evidence apart from his ipse dixit. Also, the defendant/counterclaimant alleged and testified that the guaranteed salary by Babalakin’s Fresh Limited is N1,024,000. That the evidence before the Court, which was withheld by the defendant/counterclaimant, shows that he was being paid N300,000 which would be increased after his being confirmed (checked out) as Captain to N400,000. This meant that he had not received the training to be type-rated to the SAAB 340 at that time, referring to paragraphs 5(g) and (h) of the witness statement and 4(h) and (i) of the statement of facts. That most profound of his allegation was that he complained to Dr. Babalakin that he was being paid half of what he was entitled to by the claimant and Dr. Babalakin asked him not to make it an issue with the claimant that he would pay the difference of N644, 000. The claimant referred to paragraph 5(i) of the witness statement on oath and paragraph 4(i) of the statement of facts. The question is: why is he then directing this claim to the claimant when the person who orally promised to pay him the difference was Fresh Air Limited or Dr. Babalakin? To the claimant, the sum total is that the defendant/counterclaimant is either not telling truth about his contract of employment or his counterclaim is totally misguided and misdirected at the claimant. That the Court cannot believe his testimony more so that he withheld to tender evidence of his agreement with Fresh Air Limited. In any event and without prejudice to the arguments proffered above, that in the realm of employment relationship, the authorities are consistent to the point of prolixity that in determining the rights of parties, the Court is not permitted to go beyond the ambits of the identified contract of employment between the parties, referring to Augustine Ibama v. Shell Petroleum Development Company of Nigeria Limited [2005] 17 NWLR (Pt. 954) 364. Furthermore, that it will be wrong for this Court to act upon the speculative evidence of the defendant to impute the arrangements alleged to exist with Dr. Babalakin into the agreement because this is deprecated by the Supreme Court, referring to Ibama v. Shell (supra). Accordingly, that this action of the counterclaimant must be seriously condemned. In conclusion, the claimant submitted that the defendant breached the bonds which were valid and enforceable and the claimant is entitled to the refund of the full costs thereof, and the defendant’s counterclaim should fail for lack of proof and same is not supported by law. DEFENDANT’S REPLY ON POINTS OF LAW The defendant reacted on points of law. On whether training bonds are contracts in restraint of trade, the claimant had argued that they are not and relied on the definition of a contract in restraint of trade given by Diplock, LJ in Petrofina (Great Britain) Ltd v. Martin (1966) Ch. 146, which is similar to the one given by the Court of Appeal in Tanksale v. Rubee Medical Centre Ltd [2013] 12 NWLR (Pt. 1369) 548 at 572. To the defendant, the element which thus forms a contract in restraint of trade is that it restricts the liberty of a party to carry on his trade in the manner he chooses and with the persons, he desires. That a contract, which binds an employee to work in a company for a specific time frame, restricts that employee from carrying on his trade with the persons he chooses during the time frame and would, therefore, fall under the definitions given in the cases. That the claimant tried to limit the circumstances that would constitute a restraint in trade. However, the classes cannot be closed; neither can there be an exhaustive list. Thus that Lord Wilberforce in the House of Lords case of Esso Petroleum Co. Ltd v. Harper’s Garage (Stourport) Ltd [1968] AC 269 at 331 stated that “no exhaustive test can be stated”. He held that “The doctrine of restraint of trade is one to be applied to factual situations with a broad and flexible rule of reason”. To the defendant, the circumstances, which thus constitute a restraint of trade cannot be closed and the doctrine is not confined to a limited number of kinds of contracts. For example, in the case of A. Schroeder Music Publishing Co Ltd v. Macaulay [1974] 1 WLR 1308, a young songwriter agreed to work exclusively for his music publishers for five years. He assigned to them full copyright of his existing works and in future works composed during the five years. The five years was extended to ten years if the plaintiff’s royalties exceeded £5,000. The House of Lords held that the contract was unduly restrictive and applied the common law principles relating to contracts in restraint of trade. The defendant further submitted that the case of Edward Miles v. Jet Centre Limited T/A The Private Jet Company relied upon by the claimant is inapplicable in the circumstances of this case. That the issue relating to training bond agreements in that case was whether the company can still enforce the said training bond when it was the one that terminated the employment of the pilot. The issue relating to the reasonableness of the training bond was never in issue in the said case. In this suit, while the defendant has admitted that training bond agreements are enforceable, the particular training bond agreements sought to be enforced in this instant case constitutes a restraint of trade and is against public policy due to the fact that it sought to bind the defendant for unreasonable lengths of time (after the duration of the license obtained). It is, therefore, the defendant’s submission that the training bond agreements (Exhibits C2 and C3) are contracts in restraint of trade and must be subject to the test of reasonableness and public policy. Regarding the duty of the defendant to prove forgery, the defendant submitted that there is none. The claimant had argued that the evidence of the defendant that he did not sign Exhibit C3 is an allegation of forgery. It is the defendant’s submission that this submission is erroneous. That there is no authority that puts a burden on a party disputing his signature on a document to prove forgery. That the Evidence Act 2011 in section 101 has stated what should guide the Court in determining whether a signature is made by a particular person. Section 101 provides this – (1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impressions admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose. (2) The court may direct any person present in court to write word or figure or to make finger impressions for the purpose of enabling the court to compare the words, figures or finger impressions so written with any word, figure or finger impression alleged to have been written or made by such person. That in Okamgba v. Eke [2009] 16 NWLR (Pt. 1166) 1 at 17 – 18, the Court of Appeal considered arguments similar to that proffered by the claimant on proving forgery when there is a dispute as to signature and held thus – Let me begin considering this issue by examining the provision of section 108(1) of the Evidence act which provides as follows: 108(1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose. The provisions of the reproduced section of the Evidence Act are clear and unambiguous and need no aid for their interpretation. The learned Magistrate was perfectly right in examining the power of attorney the way he did and the lower court was also right in upholding the finding of the learned Magistrate. The submission of the learned counsel for the appellant that forgery being a serious crime the particulars must be pleaded and proved strictly is of no moment in the light of the clear provision of section 108(1) of the Evidence Act reproduced above. The defendant also commend to the Court the cases of Asuquo v. Asuquo [2009] 16 NWLR (Pt. 1167) 225 at 243 – 244 and Ikedigwe v. Fai [2012] 10 NWLR (Pt. 1308) 375 at 413 – 414. In any event, that the law is clear that the burden of proof does not rest on the party denying the signature but on the party seeking to rely on the said signature to enforce the agreement, citing Odudu v. Onyibe [2001] 13 NWLR (Pt. 729) 140 at 159. That the claimant cannot, therefore, shift the burden of proof by raising an issue of forgery, which is not an issue in this suit. That Audu Otukpo v. Apa John & anor [2012] 7 NWLR (Pt. 1299) 357 relied on by the claimant is, therefore, irrelevant and inapplicable in the circumstances of this case as an issue of fraud regarding a Certificate of Occupancy was the material issue in the said case. On whether this Court can make an agreement for the parties, the claimant had argued alternatively that by attending the training, the defendant accepted by his conduct the terms of the Training Bond Agreement. While the defendant agreed that a contract can be implied by the conduct of the parties, he, however, argued that the said principle of law is inapplicable in this circumstance as it is clear from the evidence before this Court that the terms sought to be enforced by the claimant in this suit cannot be agreed to by conduct. In any event, that the defendant in his evidence stated that his ‘recurrency’ training was paid for by Dr. Babalakin who had also paid for the initial training for the SAAB 340 aircraft. How could he then have, by attending the said training, agreed by his conduct to be bound to serve the company or pay for the cost of the said training? That it is, therefore, clear that parties were not ad idem in respect of the terms of Exhibit C3. It is, therefore, the defendant’s submission that allowing him to be bound by the terms of the contract, which he did not sign, would amount to making a contract for the parties. That it is trite that the Court ought not to have a contract for the parties, citing Larmie v. DPMS Ltd [2005] 18 NWLR (Pt. 958) 438 at 459. Regarding whether this Court is bound by its records, the defendant submitted that for the purpose of evaluating the evidence adduced, this Court is bound by its record. That it is a trite principle of law that Courts of law are bound by their records and the address of counsel cannot replace or substantiate evidence, citing section 122(2)(m) of the Evidence Act 2011, Akinpelu v. Adegbore [2008] 10 NWLR (Pt. 1096) 531 at 558, Agbareh v. Mimra [2008] 2 NWLR (Pt. 1071) 378 at 411 – 412 and Ikoli Ventures Ltd v. SPDCN Ltd [2008) 12 NWLR (Pt. 1101) 422 at 440. The claimant in its final written address had relied on evidence which is at variance with the evidence before this Court. The claimant stated in paragraph 5.30 of its final written address that the defendant stated under cross-examination that he clearly read both bonds and understood them fully. That the defendant did not under cross-examination state that he signed both training bonds. That the evidence before this Court shows that he was not cross-examined at all on the issue of his signature on Exhibit C3. Similarly, that in paragraph 6.10 of its final written address, the claimant had stated that under cross-examination, the defendant was unable to show anywhere in Exhibit C1 where it was stated that he would be required to fly only the SAAB 340 aircraft. When asked by claimant’s counsel to show the Court where it was stated that he would be required to fly only the SAAB 340 aircraft, the defendant referred the Court to the salary scale behind the Direct Service Contract, which was in respect of only the SAAB 340 and stated that the remuneration was in respect of that salary scale. The defendant accordingly urged the Court to reject this attempt by the claimant to replace the evidence with extrinsic materials and to look into its records in the evaluation of evidence in this case. In conclusion, and in light of the foregoing submissions and earlier submissions made in the defendant’s final written address dated 18th November 2014, the defendant urged the Court to discountenance the submissions of the claimant and dismiss the suit of the claimant and grant the counterclaim of the defendant. COURT’S DECISION I heard learned counsel and considered all the processes filed in this matter. In considering the merit of the case, I need to resolve the admissibility of otherwise of Exhibit D6. Exhibit D6 frontloaded by the defendant is purportedly the flight operational manual of the claimant showing organization and responsibilities. As frontloaded, it starts from paragraph 2.2 and ends at paragraph 2.5.2. In other words, it is an incomplete document. In Medical and Health Workers Union of Nigeria & ors v. Federal Ministry of Health unreported Suit No. NICN/ABJ/238/2012 the judgment of which was delivered on July 22, 2013, this Court rejected incomplete documents and so discountenanced them, holding that they have no evidential value. In like manner, Exhibit D5 is hereby discountenanced for purposes of this judgment as it has no evidential value. The case before the Court is the claim by the claimant for the refund of moneys expended to train the defendant for which he signed training bonds. The defendant denies liability and counterclaims against the claimant for shortfall of salary, payment for extra services rendered and the cost of transferring his American FAA License to his Nigerian NCA License. In order to determine these issues, there is the need to resolve some factual issues. First, the claimant asserts that the defendant was previously its employee. See paragraph 2 of both the statement of facts and sworn deposition of 23rd November 2012 of CW. In paragraph 2 of the statement of defence and paragraph 3 of the sworn deposition of DW of 3rd July 2013, the defendant denied ever being an employee of the claimant. Exhibit C1 frontloaded by the claimant (which is also Exhibit D2 frontloaded by the defendant) is the Direct Service Contract between the claimant and the defendant. It is addressed to the defendant and starts with the provision – Further to your application and subsequent interview, we have the pleasure of offering you a contract on a fixed term basis as CAPTAIN in our Operations Department with effect from March 01, 2006 to February 27, 2008 subject to the following conditions: It proceeds to itemize the conditions as to job title, period of employment, medical examination, references, work location, remuneration, hours of work, validity of license, annual leave, training, good faith, confidential information, restraint of competition, health and safety and general. It ends with the clause that if the defendant agrees to the terms and conditions, he is to indicate acceptance by signing and returning the enclosed copy on or before April 25, 2006. Non-receipt is to be deemed as rejection of the offer. On 18-04-06 i.e. April 4, 2006, the defendant signed acknowledging that he read and found “acceptable the above terms of my contract with overland Airways Limited”. This is the contract the defendant signed with the claimant; and now he argues that he was never an employee of the claimant. If Exhibit C1 does not signify a contract of employment, then I wonder what would constitute a contract of employment. In any event, Exhibit C4 is a letter dated 18th July 2008 and titled, “Resignation of Appointment”. It is addressed to the Head of Human Resources of the claimant and signed by the defendant as Chief Pilot. It informs the claimant that the defendant begs to leave the establishment at the end of July 2008 to pursue his career elsewhere. The defendant then thanked the claimant “for all the support towards running of the SAAB340 operation”. Why would the defendant submit a letter of resignation of appointment if he is not in the employ of the claimant? I really wonder. The defendant sought to explain this by saying that he was Dr Babalakin’s Pilot flying his SAAB340 aircraft although under the auspices of Fresh Airlines but Dr Babalakin later decided to move his aircraft to the claimant from Fresh Airlines and so the defendant had to move to the claimant, hence the need to sign Exhibit C1 (also Exhibit D2). That although this contract (Exhibit C1/D2) purported to be between the claimant and the defendant, the defendant continued to regard the claimant as the agent of Dr Babalakin after the latter made this clear to him from the onset. See paragraph 4(d) and (e) of the statement of defence and paragraph 5(d) and (e) of the sworn deposition of 3rd July 2013 of the defendant. Under cross-examination, DW (after acknowledging signing Exhibit C1/D2 and understanding the contents of what he signed) would testify that he signed Exhibit C1/D2 as an agent of Dr Wale Babalakin. So in one breath, the evidence of DW is that the claimant is the agent of Dr Babalakin, in another breath it is the defendant who is agent of Dr Babalakin. Of course, the defendant acknowledged under cross-examination that there is no reference whatsoever to Dr Wale Babalakin in Exhibit C1/D2; neither is there any reference to the claimant as either the agent of Fresh Air or Dr Wale Babalakin. I must state here that Dr Babalakin was never called by the defendant to authenticate all that was said. While the claimant acknowledged in paragraph 3 of CW’s further witness statement on oath that the claimant accepted to manage Dr Babalakin’s SAAB 340 aircraft, it insisted that its employment of the defendant was on an exclusive basis and independently outside his contract with Dr Babalakin and with independent terms and conditions of the employment as can be seen in the Direct Service Contract. CW then under cross-examination testified to the effect that the SAAB aircraft that the defendant piloted belongs to the claimant’s client but was operated by the claimant (in accordance with the client’s instructions) and is under the claimant’s air certification i.e. aircraft operator’s certificate (AOC) issued by the Nigerian Civil Aviation Authority (NCAA); and that the client cannot operate the aircraft as he needs an organization that has the AOC to do so, which the claimant has. The key point to note here is that the aircraft the defendant was flying may have belonged to Dr Babalakin but the employment contract was with the claimant. If anything had gone wrong, it is unlikely that it would not be the claimant that would be held responsible for the defendant. The fact that the defendant flew an aircraft belonging to Dr Babalakin does not take away the fact that the contract of employment signed was with the claimant, not Dr Babalakin. It is accordingly my finding and holding that the defendant was an employee of the claimant. It is immaterial that the defendant did not see himself as such. The evidence before the Court points to the fact that the defendant was an employee of the claimant; and I so hold. The next issue before the Court is: as an employee, did the defendant sign any training programme bond agreement? The argument of the claimant is that the defendant signed two training programme bond agreements – the first made on 17th August 2007 (Exhibit C2); and the second made on 30th April 2008 (Exhibit C3). The defendant conceded to signing Exhibit C2, but not Exhibit C3. To start with, Exhibit C1/D2 in clause 8, dealing with training, provides that – The Company shall be responsible for your recurrent training on the expiration of your license and you shall be bound to remain in the service of the Company for a minimum of one year thereafter to discharge the liability accrued in consequence of your training. In the event that the Company sponsors you on a professional training programme(s), you shall be required to sign a training agreement bonding you to provide services to the company for a period stipulated by the company. Any breach of this clause shall entitle the Company to a full refund on the cost incurred in the training. This clause 8 of the Direct Service Contract (Exhibit C1/D2) accordingly gives validity to training bonds in terms of the relationship between the claimant and the defendant; and from it, it would be seen that there are two types of training that can be bonded: recurrent training for which the bonding period is a minimum of one year; and professional training for which the bonding period shall be as may be determined by the claimant. Exhibit C2 is for the B1900 Pilot Initial Training Course and has a bonding period of 36 months; and so it falls under the category of professional training for which the bonding period of 36 months set by the claimant falls. By the evidence of CW under cross-examination, the training the defendant got in virtue of Exhibit C2 was a type-rating training which enabled the defendant to be licensed and conferred with the qualification and proficiency to operate the B1900 aircraft. Exhibit C3, on the other hand, falls under the first category of recurrent training for which the bonding period is one year. Under cross-examination, CW testified that the defendant had the type-rating for SAAB but had to undergo the recurrent simulator training on the SAAB, hence the training vide Exhibit C3. CW acknowledged that it was not the claimant who type-rated the defendant on the SAAB aircraft – the claimant only paid for the renewal of the type-rating, which renewal has to be done every 6 months. Now, while the defendant acknowledged signing Exhibit C2, he denied signing Exhibit C3. A look at Exhibits C1, C2, C4, the acknowledgment of the receipt of and on Exhibit C5, Exhibits C7, C8, D4, D5 and D6, all show the signature of the defendant. They are all similar to one another but completely different from the one said to be the defendant’s on Exhibit C3. By section 101(1) of the Evidence Act 2011 dealing with “Comparison of signature, writing, seal or finger impressions with others admitted or proved” – In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose. By this provision, this Court is permitted to compare the signatures said to be those of the defendant in its record and see if all of them belong to the defendant. Accordingly, having looked at Exhibits C1, C2, C4, C5, C7, C8, D4, D5 and D6, and compared them with Exhibit C3, my finding is that the signature on Exhibit C3 is different from those in the other exhibits. However, the defendant under cross-examination acknowledged that he attended training at Laguardia Airport in the United States (US); and another at PANAM International Flight Academy in the US. DW acknowledged that the training at PANAM was in April 2008. DW went on to testify that “before my termination, I did not contest any of the training Bonds which I signed”. DW continued in his testimony that he was under pressure when he signed the bond contracts and that he did not have any option but to sign the bond contracts. He went on that he did not know what the consequences would have been if he did not sign the bond contracts. Continuing under cross-examination, the defendant testified that he was type-rated to fly Beechcraft 1900; and that it was “the claimant who paid for the type-rating of the Beechcraft 1900, which is part of the bond I signed”. Now Exhibit C3 is dated 30th April 2008 and supposedly endorsed by the defendant on 01-05-08. It is for the SAAB 340 recurrency training of the defendant at PANAM International Flight Academy, Minnesota, USA. If the defendant acknowledged that he attended this training programme, which was paid for by the claimant, can he turn round and disclaim Exhibit C3? Not once, not twice but four times, the defendant under cross-examination talked of either the training bonds or bond contracts in the plural (not singular) that he signed. If the defendant signed bond contracts, which he acknowledged were paid for by the claimant, why then is he disclaiming Exhibit C3? The signature on Exhibit C3 looks more of a mark that a signature so to speak. The defendant under cross-examination testified that he was under pressure when he signed the bond contracts and that he did not have any option but to sign the bond contracts. If the defendant was under pressure to sign the bond contracts, then that must explain why he chose to place a mark different from his normal signature. Under Exhibit D8 dated 22nd July 2008, the defendant complained to Dr B. O. Babalakin (SAN), OFR about the unbearable working conditions at the claimant’s “right from the onset”. For an employee who is under pressure to sign bond contracts, and who “right from the onset” has “always been subjected to undue confrontation” and “came under intense pressure”, it is perfectly normal just to put a mark instead of a signature of a document. A reading of paragraph 5(s), (t), (u) and (v) of the defendant’s sworn affidavit evidences this scenario. After narrating how the claimant entraps staff into signing “these documents, improperly bonding them for inordinate periods, without proper reading and no copy provided to the staff until something happens like this”, sub-paragraph (v) opens up with the statement: “Now having had a closer look at the bonds, I do not see my signature on the one dated 30th day of April 2008…” The statement in sub-paragraph (v), to the effect that “it was Dr Babalakin that paid for the training and Recurrency on his aircraft, the SAAB 340, and there was no basis for a bond in that regard with the claimant”, denied in any event by the claimant vide CW’s sworn deposition of 25th September 2013, sounds more like an afterthought, some kind of rationalization, than evidence. This is because, all through the hearing of the case, Dr Babalakin was not called to authenticate this piece of evidence, nor was any documentary evidence submitted to show that it was Dr Babalakin, not the claimant, who actually paid for the training of the defendant. So while, the signature on Exhibit C3 may be difference from those on Exhibits C1, C2, C4, C5, C7, C8, D4, D5 and D6, I am convinced that the mark on Exhibit C3 was put there by the defendant. The defendant acknowledged signing bond contracts, and which were paid for by the claimant. It is accordingly my finding and holding that the defendant signed both Exhibits C2 and C3 given the acknowledgment of the defendant that he signed bond contracts paid for by the claimant. Is the defendant thereby bound by the terms of Exhibits C2 and C3 regarding the refund of training moneys? In other words, are the training bonds as per Exhibits C2 and C3 enforceable against the defendant? This remains the question. While the claimant argues that the defendant is bound by Exhibits C2 and C3 in terms of the refunds having not served out the period enjoined by the bonds, it is the defendant’s argument that the bonds are unenforceable agreements by reason of the fact that their observance will involve the commission of a legal wrong and it will be an unreasonable restraint of trade and, therefore, contrary to public policy. The argument of the defendant is that the two training bonds sought to bind him for thirty-six months (three years) and twelve months (one year) respectively for licenses which remain valid for only six months before another training is required; as such the performance of these agreements would lead to the commission of an illegality. The defendant had also argued that it is established that the duration of the type-rating license is six months; an initial license has to be renewed by subsequent trainings every six months. So to the defendant, any training bond agreement, which seeks to protect the investment of the sponsor, should be binding for the duration of the license or certificate obtained. In order words, an agreement which seeks to bind a person for periods of time after the benefit of the training has been expended is not only unreasonable and unconscionable but also exploitative and against public interests. In any event, that the claimant did not lose anything due to the resignation of the defendant and the claimant by instituting this action only seeks to eat its cake and have it. In reaction, the claimant contended that it was erroneous of the defendant to equate a training bond with a contract in restraint of trade as training bonds do not come within the conception of contracts in restraint of trade. Yet the claimant would state in paragraph 5.15 of its written address that “a training bond only requires that after the employer has incurred cost to train an employee, the employee shall remain in the employer’s employment for a defined term or if the employee decides to leave the employment, the employee will repay the cost of training”. The point is that in all of this, the claimant lost sight of some vital issues. If a training bond requires an employee to remain in employment for a defined term, which as it is argued by the defendant is unreasonable, is that not a restrictive term? When in paragraph 5.23 of its written address the claimant argued that “the employer would be justified in ensuring that it puts in place reasonable safeguards to protect its interest from poaching of the employees by competitors after expending huge amounts on training”, if the safeguards become unreasonable, is this not suggestive of a restrictive covenant? If the argument is correct that the licence for which the training was paid for by the claimant is valid for only 6 months, what was reasonable in tying up the defendant for 36 months in the bond? And if an unreasonable training bond is foisted on an employee, would that be a fair labour practice, now that this Court has jurisdiction over unfair labour practice? Given the novel nature of the issues raised by the parties as to the enforceability or otherwise of training bonds in especially the aviation sector, whether or not the terms in training bonds are or approximate to terms in restraint of trade, I took the liberty to consult three internet write-ups of commentators on the subject. For instance, the fact that training bonds approximate to contracts in restraint of trade finds support in the writing of Krishnakanth Balasubramani, who in an internet article updated on 7th May 2013 and titled, “India: Enforceability of Employment Bond” available at http://www.mondaq.com/india/x/237806/employee+rights+labour+relations/Enforceability+of+Employment+Bond as accessed on March 15, 2015 stated the Indian position as follows – Now, the most pertinent question that arises here is whether the employment agreement with negative covenant is enforceable under Indian laws? The simple answer is yes. Such employment agreements with the negative covenant is valid and legally enforceable if the parties agree with their free consent i.e. without force, coercion, undue influence, misrepresentation and mistake. The courts in India have held in its various judgments that in the event of breach of contract by the employee, the employer shall be entitled to recover damages only if a considerable amount of money was spent on providing training or incurred other expenses for the employee. Further, the courts have been reluctant to restrain the employee from joining a competitor/other employer. The employment bond will not be enforceable if it is either one sided, unconscionable or unreasonable…it is mandatory that the conditions mentioned in the employment bond, including the compulsory employment period and amount of penalty are reasonable in order to be valid under the Indian law…In general, the conditions stipulated in the contract should justify that it is necessary to safeguard the interest of the employer and to compensate the loss in the event of breach of contract. Further, the penalty or compulsory employment period stipulated in the contract should not be exorbitant to be considered as valid and to be regarded as reasonable. The validity/enforceability of the employment bond can be challenged on the ground that it restrains the lawful exercise of trade profession or trade or business…any agreement in restraint of trade or profession is void. Therefore, any terms and conditions of the agreement which directly or indirectly either compels the employee to serve the employer or restrict them from joining competitor or other employer is not valid under the law. The employee, by signing a contract of employment, does not sign a bond of slavery and, therefore, the employee always has the right to resign the employment even if he has agreed to serve the employer for specific time period. [See Central Inland Water Transport Corporation v. Brojonath Ganguly [1986] IILLJ 171 SC.] However, the restraints or negative covenants in the agreement or contract may be valid if they are reasonable. For a restraint clause in an agreement to be valid under law, it has to be proved that it is necessary for the purpose of freedom of trade. For instance, if the employer is able to prove that the employee is joining the competitor to divulge its trade secrets then the court may issue an injunction order restricting the employment of the employee to protect the interests of the employer. Whenever an agreement is challenged on the ground of it being in restraint of trade, the onus is upon the party supporting the contract to show that the restraint is reasonably necessary to protect his interests. [See Niranjan Shankar Golikari v. the Century Spinning and Manufacturing Company Ltd, AIR 1967 SC 1098.] ………………………………………………. In the event of breach of employment bond, the employer might incur a loss and, therefore, may be entitled for compensation. However, the compensation awarded should be reasonable to compensate the loss incurred and should not exceed the penalty, if any, stipulated in the contract. Usually, the court determines the reasonable compensation amount by computing the actual loss incurred by the employer having regard to all circumstances of the case. Even if the bond stipulates payment of any penalty amount in the event of breach, it does not mean that the employer shall be entitled to receive the stipulated amount in full as compensation on the occurrence of such default; rather the employer shall be entitled only for reasonable compensation as determined by the court. ………………………………………………. …the conditions stipulated in the employment bond should be reasonable in order to be valid and, therefore, even if unreasonable condition/clauses are stipulated in the contract such as imposing exorbitant duration of compulsory employment period or huge penalty upon the employee, the court shall award compensation only if it determines that the employer has incurred loss by such breach of contract. The court normally considers the actual expenses incurred by the employer, the period of service by the employee, conditions stipulated in the contract to determine the loss incurred by the employer to arrive at the reasonable compensation amount. For instance, in the case of Sicpa India Limited v. Shri Manas Pratim Deb, MANU/DE/6554/2011 the plaintiff had incurred expenses of INR 67,595 towards imparting training to the defendant for which an employment bond was executed under which the defendant had agreed to serve the plaintiff company for a period of three years or to make a payment of INR 200,000. The employee left the employment within a period of two years. To enforce the agreement the employer went to the court, which awarded a sum of INR 22,532 as compensation for breach of contract by the employee. It is crucial to note that though the bond stipulates a payment of INR 200,000 as compensation for breach of contract, the judge had considered the total expenses incurred by the employer and the employee’s period of service while deciding the compensation amount. Since the defendant had already completed two years of service out of the agreed three year period, the judge divided the total expenses of INR 67,595 incurred by the plaintiff into three equal parts for three years period and awarded a sum of INR 22,532 as reasonable compensation for leaving the employment a year before the agreed time period. Similarly, the High Court of Andhra Pradesh in the case of Satyam Computers v Leela Ravichander, MANU/AP/0416/2011 had also reduced the compensation amount considering the period of service of the employee. Secondly, writing specifically in respect of the aviation industry, Krista Bulmer in his internet write-up titled, “Legally Speaking: The enforceability of training bonds” posted on November 03, 2011 but accessed on March 15, 2015 and available at https://www.wingsmagazine.com/operations/legally-speaking-the-enforceability-of-training-bonds-6250 wrote as follows – Pilots generally feel that training bonds are unfair, especially if enforced after the pilot has been terminated or when the employer has gone bankrupt. Conversely, air operators view the training bond as insurance against having a pilot jump ship and take his or her newly acquired skills to a competitor. But are training bonds enforceable? The short answer is yes, a properly drafted training bond is enforceable...If the agreement is signed after the training is completed, it may not be enforceable because at the time the contract was signed nothing of value was exchanged. Lastly, also writing specifically in respect of the aviation industry but this time regarding the consequences of training bonds in the aviation sector, Neil J. MacDonald in his piece “The Bond Experiment: Understanding the Role of Training Bonds in the Workplace” available at http://www.helicoptersmagazine.com/content/view/3884/62/ as accessed on March 15, 2015 in acknowledging that training bonds have come to stay in the world of work has this to say – It seems reasonable that since employees are the ones who will benefit in the long run, they should bear the cost of their own education. It’s no different for many other professionals. Doctors, lawyers, and accountants, for example, spend thousands of dollars to get the skills that allow them to work in their chosen fields. ………………………………………………………………… ...The financial commitment the employee signs on for should reflect the true cost of the training. Courts are reluctant to enforce a contract where an employee is asked to pay well above the actual value of the training costs. The time an employee is required to stay with the company after training needs to be realistic as well. A five-year term should easily fail the test, while a one- to two-year minimum seems reasonable. Having the employee pay back costs on a pro-rata basis is also common. Divide the cost of training by the number of months you require the employee to stay, and forgive the bond debt by that quotient each month. All of these commentators are agreed on the enforceability of training bonds, once it is ascertained that they are reasonable; and reasonability is determined taking into account the duration of the bonding period, how slavish or restrictive the covenants are, the amount required to be paid in the event of breach or exit from the employment in issue, etc. Regarding the instant case, the answer must be that prima facie Exhibits C2 and C3 are accordingly not enforceable between the parties being in restraint of trade unless they are shown to be reasonable. The only issue, therefore, is whether the bonding terms of Exhibits C2 and C3 are reasonable. The argument of the defendant is that they are not, while the claimant thinks they are. In the effort to show how unreasonable the bonding terms are, the defendant had in paragraph 5(l) of his sworn deposition of 3rd July 2013 averred that the claimant is the only Airline in the industry that binds staff by its training bonds to work for 12 to 36 months for it in consideration for training that allows the pilot to fly for only 6 months. However, if Exhibit C3 is taken as a yardstick, it will be found that the defendant did not even spend up to six months after the training. In paragraph 5(s) of the same sworn deposition, the defendant averred that “the industry standard is that you bond to serve for the duration of the license the training provides, which is six months”. Here industry standard, another name for custom of an industry, can either be judicially noticed or proved as a fact according to sections 16 – 18 of the Evidence Act 2011. Specifically sections 18(2) and 73 of the Evidence Act 2011 enjoin that such industry standard should be proved by “the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed”. These provisions do not suggest that it is the defendant who can give such evidence. As it is then, the evidence of the defendant that industry standard/practice in the aviation sector is to bond to serve for the duration of the license the training provides, which is six months, falls short of the requirements of the Evidence Act and so proves nothing; and I so hold. The question, however, still remains: whether the bonding terms are reasonable. Exhibit C2 stipulated a bonding period of 36 months. The commentator, Neil J. MacDonald, quoted above talked of one to two years bonding period being reasonable; but 5 years bonding being out-rightly unreasonable. He was silent on 3 or 4 years bonding. In my view, however, 36 months or 3 years bonding is equally reasonable; and I so hold. In like manner the bonding period of 12 months regarding Exhibit C2 naturally meets the reasonability test. In any event, by Krishnakanth Balasubramani, “even if unreasonable condition/clauses are stipulated in the contract such as imposing exorbitant duration of compulsory employment period or huge penalty upon the employee, the court shall award compensation only if it determines that the employer has incurred loss by such breach of contract”. Having accordingly held the bonding periods of 36 months and 12 months regarding Exhibits C2 and C3 respectively, the issue that is outstanding is whether the defendant is obligated to refund the full sums of N3,092,232.39 and N1,350,000.00 being the said cost of trainings as per Exhibits C2 and C3 respectively. Before addressing this issue, it needs to be noted that Exhibits C2 and C3 in their recitals talk of the defendant “upon the completion of the programme shall thereafter return and continue and/or remain in the employment of the Company for a minimum of [36 or 12 months, as the case may be]”. In other words, the bonding period starts to run after completion of the training. There is, however, no evidence before the Court how long any of the trainings as per Exhibits C2 and C3 lasted. So it cannot readily be ascertained how long the defendant worked for the claimant after completing the trainings. In paragraph 5.1.15 of his written address, the defendant had submitted that he worked for the entire duration of the license (October 2007 to March 2008). There is equally no evidence before the Court that the duration of the license is from October 2007 to March 2008. The reference by the defendant to paragraph 5(w) – (x) of his witness statement on oath is misleading as those sub-paragraphs are silent on the fact of the license commencing from October 2007. The closest evidence as to the commencement of the bonding period is Exhibit C5 dated 28th July 2008, which is a letter from the claimant to the defendant reacting to the latter’s letter of resignation. Exhibit C5 at the second page provides as follows – Kindly note that as at the time you tendered your resignation, you had only worked in the Company for a period of eleven (11) months from the date of the Bond and therefore liable to reimburse as fully for the cost of the two separate trainings in the total sum of N4,442,000.00… From this paragraph, the claimant itself took the date of the training bonds (Exhibits C2 and C3) as the start date for calculating the bonding period. The Court shall accordingly adopt this date in the absence of evidence of the actual date of completion of the trainings as per the training bonds. It is the argument of the defendant that even if the training bonds are binding on him, the claimant cannot succeed in its claims as it did not prove the exact amount spent on his training. Exhibit C2 in recital b. talks of the company agreeing “to bear the cost of the Employee’s attendance and participation in the programme at an amount not exceeding N3,092,232.39…” And recital b. in Exhibit C3 also talks of the companying agreeing “to bear the cost of the Employee’s attendance and participation in the programme at an amount not exceeding N1,350,000.00…” In both recitals, the thing to note is that they talk of the claimant bearing the cost of the defendant’s training at an amount not exceeding the stated sum. If the obligation on the claimant is to expend money not exceeding N3,092,232.39 in terms of Exhibit C2 and N1,350,000.00 in terms of Exhibit C3, is the claimant not required to prove to this Court the actual amount expended on each training in order to ascertain if the cost was even up to the stated sums? I think so. When in clauses 3 and 5 of Exhibit C2 and clauses 3 and 5 of Exhibit C3, the defendant is obligated to serve out the bonding period or pay up the full cost of the respective sums of N3,092,232.39 and N1,350,000.00 even when the defendant had actually worked for some time for the claimant after the training, is this reasonable and hence a fair labour practice? To show to the Court that it is entitled to the refund of the training cost, the claimant relied on and referred this Court to the Isle of Man Employment Tribunal decision in Edward Miles v. Jet Centre Limited T/A The Private Jet Company (Case No. 12/02 delivered on 6th November 2012), the source of which was not disclosed or a certified true copy of it submitted to the Court as enjoined by Order 20 Rule 3 of the NIC Rules 2007. Yet, the claimant seems to forget that even in this case, the bond allowed, where necessary, for recovery of part, not all, of the training costs. In the instant case, the claimant is claiming for all the training costs it said it expended on the defendant even as it is acknowledged that the defendant actually worked for the claimant after undergoing the training. Is this then a fair labour practice? The claimant also relied on the High Court of Lagos State case of Attorney-General of the Federation v. Awojoodu [1973] 3 UILR 4 cited by Prof. Itse Sagay at pages 34 – 35 of his book, Nigerian Law of Contract as proof that training bonds are valid and legal. While this may be so, the rule is actually that they are binding only if they meet the reasonability test. And in that regard, the claimant seems to forget that Attorney-General of the Federation v. Awojoodu is a case decided long before the unfair labour practice jurisdiction was conferred on any Court in the Country. I indicated earlier that by the recitals in Exhibits C2 and C3, the obligation on the part of the claimant is to bear the cost of training the claimant at a sum not exceeding the sums stated in the said exhibits. However, there is no evidence before the Court of the actual expenditure incurred by the claimant in training the defendant. Under cross-examination though, the defendant acknowledged that he attended training paid for by the claimant. Given this acknowledgment by the defendant, the interest of justice will not permit the Court to gloss over such acknowledgment. Courts are enjoined, in making an award for compensation in the event of breach of an employment bond, to consider the circumstances of the case given that the employer might incur a loss and, therefore, may be entitled for compensation. However, Courts must note that the compensation awarded should be reasonable to compensate the loss incurred and should not exceed the penalty, if any, stipulated in the contract. The Court, of course, determines the reasonable compensation amount by computing the actual loss incurred by the employer having regard to all circumstances of the case; so that even if the bond stipulates payment of any penalty amount in the event of breach, it does not mean that the employer shall be entitled to receive the stipulated amount in full as compensation on the occurrence of such default. Rather the employer shall be entitled only for reasonable compensation as determined by the Court. I indicated earlier that the Court will use the dates of the Exhibits C2 and C3 as the commencement date of the bonding period. The bonding period for Exhibits C2 is 36 months. By Exhibit C5, the claimant acknowledged that the defendant worked for 11 months into the bonding period of 36 months. This means that when the defendant left the services of the claimant, he had 25 months left to serve out the bonding period of 36 months as per Exhibit C2. Now if the sum of N3,092,232.39 being the training sum as per Exhibit C2 is divided by 36 months, what we have is N85,895.34 per month. If N85,895.34 is multiplied by 25 months (the outstanding bonding period that the defendant did not serve) what we have is N2,147,383.60. N2,147,383.60 is accordingly the amount that the defendant must pay back to the claimant for not fully serving out the bonding period of 36 months as per Exhibit C2; and I so hold. As to Exhibit C3, the bonding period is 12 months and the bonding sum is N1,350,000.00. The commencement date of the bond is 30th April 2008. By Exhibit C4, the defendant resigned with effect from the end of July 2008 i.e. 31st July 2008. This means that the defendant worked for only the months of May, June and July 2008 into his 12 months bonding period as per Exhibit C3. In other words, the defendant had 9 months outstanding, which he did not serve regarding his bonding period as per Exhibit C3. So if N1,350,000.00 is divided by 12 months, what we have is N112,500.00 per month. If N112,500.00 is multiplied by 9 months, what we have is N1,012,500.00. N1,012,500.00 is accordingly the amount that the defendant must pay back to the claimant for not fully serving out the bonding period of 12 months as per Exhibit C3; and I so hold. To the extent that relief 4 is praying for pre-judgment interest, that cannot be granted. In Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC, the request for pre-judgment interest was rejected by this Court. What this Court can grant is the award of interest on judgment as from the date of judgment. The claim in relief 5 for cost of this action at N1,000,000 (One Million Naira) was not proved. The claimant did not show to the Court how it came about this sum. That relief accordingly fails and so is dismissed. I now turn to the counterclaim of the defendant. I have severally complained about defendants who counterclaim just for the fun of it. Given that in employment cases the employer is often the defendant, my complaint had been targeted at the employer. In the instant case, however, the employee is the defendant. A look at the counterclaim of the claimant will show that the defendant is making monetary claims as counterclaim; and for each of the monetary claim, he is also claiming interest. Relief b) is the claim for interest on the sum in relief a). Relief d) is the claim for interest on the sum in relief c); and relief f) is the claim for interest on the sum in relief e). Now, there is really no problem with reliefs a) and b). In relief a), the claim is for N16,744,000.00 from April 2006 to July 2008; so it is understandable if the claim for interest is at the rate of 7% and for the period from April 2006 till judgment and thereafter. The problem, however, is that in relief c) the claim of N2,500,000.00 is for five months from November 2007 to March 2008; but the claim for interest in relief d) is “at the rate of 7% from April 2006 till judgment is delivered in the matter and at the rate of 21% from the date of delivery till the sum is liquidated”. Invariably, this is a case of “copying and pasting” what was written in relief b) for relief d) even when the reliefs they relate to are not the same. The same is the case regarding reliefs e) and f). Relief e) is simply for “N40,000.00 being the cost of transferring the counterclaimant’s B1900 rating from his American FAA License to his Nigerian NCA License at the behest of the defendant to counterclaim”. The claim for interest for this relief in relief f) is “at the rate of 7% from April 2006 till judgment is delivered in the matter and at the rate of 21% from the date of delivery till the sum is liquidated”. Once again this is a case of “copying and pasting” what was written in relief b) for relief f) even when the reliefs they relate to are not the same. This sort of uncritical copying does great and grave disservice to advocacy; and in this uncritical copying, how does counsel to the defendant expect to get a verdict for her client, at least in terms of reliefs d) and f)? Other than the claims for interest, the defendant’s counterclaim relates to three main reliefs: the claim for shortfall on the counterclaimant’s monthly salary for a period of 26 months commencing from April 2006 to July 2008; the claim for extra services for flying the B1900 aircraft for five months; and the claim for the cost of transferring the defendant’s American License to his Nigerian License. Other than the averments of the defendant himself, the defendant did not show either by way of documentary evidence or by calling witnesses to authenticate these claims. For instance, it is argument of the defendant that he was approached by Captain Edward Boyo who promised that he would be paid N500,000.0 per month for the extra service of flying other than the SAAB 340 aircraft. Captain Boyo was not called to testify to this fact. Secondly, it is the argument of the defendant that the Direct Service Contract between him and the claimant (Exhibit C1/D2) shows that the remuneration agreed upon in the contract is restricted to the SAAB 340 aircraft. I look through Exhibit C1/D2 and could not find any clause which authenticates the defendant’s submission in that regard. Instead, in clause 1 on job title, it is specifically stated that the defendant “may be required to do any work which the Company from time to time requires…” This provision is broad enough to counteract the argument of the defendant that his salary was to be paid as per each aircraft he flies; an argument that I find no sufficient proof to authenticate; and I so hold. The submission of the defendant that “the agreement between [him] and Captain Boyo on behalf of the Claimant in respect of the B1900 aircraft therefore created a new and separate agreement” accordingly goes to no issue, it not being authenticated by any tangible or other evidence other than the defendant merely saying so. The claimant sufficiently denied all of this in its reply and defence to counterclaim and reply to statement of defence as well as the accompanying further witness statement on oath of CW incorporating reply and defence to counterclaim. See, for instance, paragraphs 15 and 16 of the reply and defence to counterclaim and reply to statement of defence. While I agree that an oral agreement proved as such can be enforced in a Court of law, it is also the case that what is stipulated in a document cannot, without more, be varied by an oral agreement. The Direct Service Contract is a written contract; if it is to be varied, more other than just an oral agreement is needed. Thirdly, the argument of the defendant that his salary at Fresh Airline was increased from N560,000.00 to N1,024,000.00 is not authenticated; and even if it were, there is no evidence before the Court that the claimant agreed to pay this salary increase. Exhibit D1 an internal memo from Resort International Limited showing a breakdown of crew/aircraft allowances as agreed with Dr B. O. Babalakin answers nothing as there is no evidence before the Court of the nexus between Resort International Limited and either Fresh airline or even the claimant. Lastly, the claim for N40,000 being the cost of transferring the B1900 rating from the defendant’s American FAA License to his Nigerian License at the directive of the claimant is also not proved. In paragraph 16 of the reply and defence to counterclaim and reply to statement of defence, the claimant in fact stated that it fully paid for the defendant’s B1900 type-rating endorsement on his American License as well as the transfer of his B1900 type-rating from his American License to his Nigerian Civil Aviation License. See also paragraph 14 of further witness statement on oath of CW. On the whole, the defendant has not succeeded in proving any of the reliefs in the counterclaim. The defendant’s counterclaim accordingly fails and is hereby dismissed. In conclusion, and for the avoidance of doubt, while the defendant’s counterclaim fails and is accordingly dismissed in its totality, the claimant’s case succeeds but only in part and only in terms of the following declarations and orders – 1. It is hereby declared that the defendant is in breach of the terms and conditions as stipulated under the Direct Service Contract dated April 11, 2006 and under the Training Bond Agreements dated 17th day of August 2007 and 30th day of April 2008, which Agreements were both executed by the defendant. 2. It is hereby declared that the defendant is liable in debt to the claimant in the sum of Two Million, One Hundred and Forty-Seven Thousand, Three Hundred and Eighty-Three Naira, Sixty Kobo (N2,147,383.60) being the outstanding amount on the training of the defendant by the claimant as per the training bond dated 17th April 2007. 3. It is hereby declared that the defendant is liable in debt to the claimant in the sum of One Million, Twelve Thousand, Five Hundred Naira (N1,012,500.00) being the outstanding amount on the training of the defendant by the claimant as per the training bond dated 30th April 2008. 4. It is hereby ordered that the defendant shall pay to the claimant the sum of N2,147,383.60 being the outstanding amount on the training of the defendant by the claimant as per the training bond dated 17th April 2007. 5. It is hereby ordered that the defendant shall pay to the claimant the sum of N1,012,500.00 being the outstanding amount on the training of the defendant by the claimant as per the training bond dated 30th April 2008. 6. Cost of this suit is put at Fifty Thousand Naira (N50,000.00) only payable by the defendant to the claimant. 7. All sums payable under this judgment including the cost of this suit are to be paid within 30 days of this judgment. Failing this, the said sums shall thereafter attract interest at 10% per annum up to such time as they are fully paid. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip, PhD