OVERLAND AIRWAYS LIMITED V GAMRA & ORS

OVERLAND AIRWAYS LIMITED V GAMRA & ORS


IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON THE 7TH DAY OF JANUARY, 2016


SUIT NO: NICN/LA/141/2011

CITATION: NIC (2016) 1 LLER 3

CORAM:
HON. JUSTICE B.A. ADEJUMO, OFR (PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA)


BETWEEN

OVERLAND AIRWAYS LIMITED

(CLAIMANTS)

AND

1. CAPTAIN JOSEPH GAMRA


2. CHANCHANGI AIRLINES NIGERIA LIMITED

DEFENDANT


REPRESENTATION

1. GBENGA BELLO, ESQ;FOR CLAIMANT

2. F. ODUDE, (MISS) FOR 1ST DEFENDANT

3. C. I. C. CHIKWENDU, ESQ; FOR 2ND DEFENDANT APPEARING WITH H. O. IBEKA (MISS)

PRONOUNCEMENTS

A. CONTRACT
1. Contract in Restraint of Trade–Are contracts in restraint of trade distinguishable from training bonds?

It is in this wise that this Court in Suit No.NICN/LA/19/2011:Overland Airways Limited v. Oladeji Afolayan & 1 Or. [delivered 2nd May, 2014] [supra] held at pp. 40 – 41 that:
I agree with the argument of counsel for the claimant that contracts in restraint of trade are distinguishable from training bonds. Learned counsel stood on strong logical firmament when he posited that the objective of a contract in restraint of trade is to protect an employee’s confidential information acquired by an ex-employee from being used against the employer. On the other hand, a training bond seeks to compel a current employee whose training has been sponsored by the employer to work for an agreed duration so that the employer could derive the benefits of its investment on the employee.
READ IN CONTEXT

2. Penalty Clause–Are there any differences between bonds and penalties in the determination of the enforceability of contracts

From the above, what appears settled from the definitions of bonds and penalties above is that whether a stipulation in a contract is a bond or penalty can only be ascertained by a close perusal of the intents of both, regardless of the nomenclature used. Both bonds and penalties are stipulations of contracts contingent upon the happening of a future event or elapsing of time. In fact, a penalty is a form of bond. What distinguishes a bond from a penalty is that in a penalty, the amount fixed for breach of contract is fixed as punishment and not as pre-estimate of the damages resultant from the breach. Thus, if the agreed sum to be paid on breach is a good pre-estimate of the damages to be suffered, then, the bond is enforceable but if not, it becomes a penalty and therefore unenforceable. Then, it follows that bonds for breach of contracts are enforceable contingent on whether or not they are penalties or not. READ IN CONTEXT

B. DEFAMATION
3. Qualified Privilege–When defence of qualfied privilege will apply

Without wasting too much time on this, I cite Iloabachie v. loabachie [supra] pp. 10 – 11, paras. E – G, where the Supreme Court held: Where a court is considering the defence of privilege whether qualified or not, there are some empirical factors that should be taken into consideration and these include the interest of any of the persons to whom the document was published, and the circumstances of the matter in question… Equally too, the court should consider the motive for the publication to examine whether it is actuated by purely altruistic principles or tendencies, or malicious and injurious motive. This same view was held in Mamman v. Salaudeen [supra] at p. 512, paras. C – D, where the Supreme Court held that: If the statement is made in the reasonable attention to a man’s own business and affairs, which gives him legitimate cause to write or speak of his neighbor, the occasion displaces the presumption of malice…and he is only answerable if malice be shown to have existed in fact. READ IN CONTEXT

C. EVIDENCE
4. Doctrine of Waiver

The principle of waiver is simply this: If one party by his conduct leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict rights when it would be inequitable for him so to do. READ IN CONTEXT

D. LABOUR LAW
5. Training Bonds–When same will be regarded as a penalty, so as to affect its validity and hence enforceability

If a bond goes beyond the validity period of the licence to be obtained, it will then follow that the extra period to be observed in the bond is a penalty, being beyond the usefulness of the training to the employee, who must go for another training willy-nilly at the expiry of the six months to be able to function. The extra period of the bond will therefore serve no useful purpose other than to force or frighten the employee to continue to be in the service of the employer at the risk of paying the penalty in default. The implication is that, if the employee must free himself, he must pay a penalty. It logically follows that the bonds in issue in this case are penalties, and consequently void; and I so hold. They are therefore unenforceable. READ IN CONTEXT

6. International Best Practices–Whether trainings bonds are recognised as an international best practice, and whether it is by virtue of that, without limitations;

While the practice of bonds is recognised as international best practice, it is not a licence without limitation, just as with all rules of law. To hold otherwise is to grant blank cheques to the employers of labour to take away the gains achieved by the innovation of unfair labour practice as moderating force in employment and labour relations. READ IN CONTEXT

E. WORDS AND PHRASES
7. Meaning of “Bond”

A bond has been defined by the Black’s Law Dictionary [8th Edition] at p. 187 as: written promise to pay money or to do some act if certain circumstances occur or a certain time elapses; a promise that is defeasible upon a condition subsequent….The fact that an instrument is called a ‘bond’ is not conclusive as to its character. It is necessary to disregard nomenclature and look to the substance of the bond itself. The distinguishing feature of a bond is that it is an obligation to pay a fixed sum of money, at a definite time, with a stated interest, and it makes no difference whether a bond is designated by that name or by some other, if it possesses the characteristics of a bond. There is no distinction between bond and certificates of indebtedness which conform to all characteristics of bonds. READ IN CONTEXT

8. Meaning of “Penalty”

What then is ‘penalty’? This word has been defined in the Black’s Law Dictionary at p. 1168 as: Excessive stipulated damages that a contract purports to impose on a party that breaches. If the damages are excessive enough to be considered a penalty, a court will usually not enforce that particular provision of the contract. Some contracts specify that a given sum of damages is intended “as liquidated damages and not as a penalty” – but even that language is not foolproof. “A penalty is a sum which a party…agrees to pay or forfeit in the event of a breach, but which is fixed, not as pre-estimate of probable actual damages, but as a punishment, the threat of which is designed to prevent the breach, or as security, where the sum is deposited or the covenant to pay is joined in by one or more sureties, to insure that the person injured shall collect his actual damages. Penalties…are not recoverable or retainable as such by the person in whose favor they are framed….At p. 1169, it is further said of “penalty clause” that it is: A contractual provision that assesses against a defaulting party an excessive monetary charge unrelated to actual harm. Penalty clauses are generally unenforceable. – Often shortened to penalty. READ IN CONTEXT

9. Meaning of “restraint of trade”

Let me now explore what is meant by ‘contract in restraint of trade’. I think, really, the operative phrase is ‘restraint of trade’, which the phrase is adopted by the Black’s Law Dictionary [supra], at p. 1340: A limitation on business dealings or professional or gainful occupations. An agreement between or combination of businesses intended to eliminate competition, create a monopoly, artificially raise prices, or otherwise adversely affect the free market. Restraints of trade are usually illegal, but may be declared reasonable if they are in the best interests of both the parties and the public. – Often shorten to restraint. READ IN CONTEXT

JUDGEMENT

This suit was commenced by a complaint dated and filed 1st November, 2011. It was accompanied with the Statement of Facts, which was dated 8th June, 2011. The reliefs claimed in the Statement of Facts are as listed hereunder: WHEREFORE the claimant claims against the Defendants as follows:

i. A DECLARATION that the 1st Defendant is in breach of the terms and conditions as stipulated under the Direct Service Contract dated 2nd of May, 2007 and under the Training Bond Agreements dated 4th day of May, 2007 and 11th day of January [sic] 2008, which Agreements [sic] were both executed by the 1st Defendant.

ii. A DECLARATION that the 1st Defendant is liable in debt to the Claimant in the sum of N9, 075, 969.00 being the 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 of 60 months after the completion of the said training.

iii. AN ORDER directing the 1st Defendant to pay to the Claimant the sum of N9, 075, 969.00 being the debt owed to the Claimant as a result of the breach of contract.

iv. Interest on the said N9, 075, 969.00 at the rate of 7% from the date of the breach till judgment herein is delivered and at the rate of 21% from the date of delivery of judgment till the said sum is liquidated.

v. AN ORDER directing both the 1st and 2nd Defendants jointly and severally to pay the total um [sic] of N77, 200, 000

(Seventy Seven Million Two Hundred Thousand Naira) being special damages and loss for normal flights calculated at N16, 200, 000 (Sixteen Million Naira) damages and loss for chartered flights against the 1st and 2nd Defendants jointly and severally, being Special damages suffered by the Claimant for the interference with the Terms and conditions as stipulated under the Direct Service Agreement dated 2nd day of May, 2007 executed by the 1st Defendant and from the inducement by the 2nd defendant.

vi. Aggravated/general damages in the sum of N50, 000, 000 (Fifty Million Naira) against the 2nd Defendant for inducing and procuring the 1st Defendant to breach his valid and subsisting Contracts with the Claimant.

vii. Cost of this Action against both the defendants jointly and severally.

Against the above, the 1st defendant filed a Statement of Defence and Counter-Claim dated and filed 8th February, 2012. The 2nd defendant equally filed on the 7th June, 2012 a Statement of Defence and Counter-Claim dated 28th May, 2012 against the above suit. The claimant filed a reply and defence to counter-claim of the 1st defendant, which was deemed properly filed and served on the 3rd December, 2012. The claimant’s reply to the 2nd defendant’s Statement of defence and Defence to Counter-Claim, which was filed on 23rd August, 2012, was also deemed properly filed and served on the same 3rd December, 2012. Thereafter, the suit came up for hearing on the merits on the same day.

The claimant opened its case. Counsel to the claimant led CLWI in evidence. CLWI gave her name as Cynthia Muhammed and that she worked at the claimant as the Manger of the Legal department. CLWI said she made three witness statements on oaths. The three witness statements on oath were admitted in evidence without objection alongside a host of other documents. I shall refer to these exhibits later in the course of this judgment as occasion require. At the end of tendering these documents, the evidence-in-chief was brought to an end. The matter was subsequently adjourned to 18th January, 2013 for further hearing.

The matter however came up next on the 26th March, 2013. On this date, CLWI was cross-examined by counsel to the defendants. Starting the cross examination was Miss. Funmilayo Odude for the 1st defendant. CLWI said as a legal adviser to the claimant, it is correct to say she is conversant with the rules, regulations, laws and practices of the aviation industry. She said it is on record in her witness statement on oath that the claimant sponsored the 1st defendant to A-type-rated course in 2007. She said the purpose was to make the 1st defendant qualify to fly ATR42. She explained that when a pilot is type-rated, it ensued for life but that such a pilot is required at 6-monthly interval to go for a refresher course to keep the type-rating current. Going further under cross-examination, CLWI said he was not aware whether the claimant witnessed the type-rating certificate issued to the 1st defendant after the course but that, he was aware that when a pilot completes a type-rating course, the certificate would be endorsed on the pilot’s professional licence issued by ACAA. She said further that the 1st defendant took the ATR42 he was employed to fly to France for a routine maintenance. She answered that he could recognise the signature of the 1st defendant. She also said that the claimant did not provide insurance cover for the 1st defendant for the trip to Las Palmas. At this stage the cross-examination by the counsel to the 1st defendant was brought to an end.

The case proceeded to cross-examination by counsel to the 2nd defendant: Mr. C.I.C. Chikwendu. CLW1 said that the contract term was for 3 years but renewable. She said the 1st defendant resigned from the employment of the claimant before the expiration of the contract period. CLW1 said exhibit CLWA [Letter of Employment] did not tie the 1st defendant and the claimant in perpetuity. CLW1 said the contract was [exhibit CLWA] binds the 1st defendant to the claimant for a period of 3 years while the bond was for 6 months of training which the claimant sponsored. CLW1 agreed that she was the same person as Cynthia surety and Mrs. Mohammed Cynthia and that she witnessed exhibit CLWD. CLW1 also said that before instituting this action the claimant first filed an action at the Lagos State High Court which was discontinued as a result of the constitutional amendment which ousted the jurisdiction of the Court. She agreed that she made a witness statement on oath at the Lagos State High Court. She agreed that she could remember the suit no. of the case in the Lagos State High Court. She said the claimant wrote exhibit CLWG dated August 20, 2008 to the 2nd defendant. She said in exhibit CLWG, the claimant solicited for the cooperation of the 2nd defendant for the resolution of matter. CLW1 said they did not notify the 2nd defendant of the training bond because as at that time, the 1st defendant was in the employment of the claimant.

Still under cross-examination, CLW1 said the last time the 1st defendant flew the claimant’s ATR42 was on the 13th of February, 2008. She said further that between February and June 2008 the aircraft was in France undergoing maintenance. She said at all the material time, the claimant was paying the 1st defendant. She said in her deposition at the Lagos State High Court, the their claim for loss of earning per day was for N200, 000 while in the extant one at this Court it is N1.7 Million. She said further that the claimant also claimed that because of the resignation of the 1st

defendant and that the claimant was not able to do their chartered flights. She said further that the claimant did at least 4 chartered flights per month. At this stage, counsel to the 2nd defendant called off the cross-examination. The case was subsequently adjourned to 3rd May, 2013 for the defence to open their case.

However, the matter came up next for further hearing on the 18th September, 2013. On this date, the 1st Defendant opened his defence by testifying as DW 1. After complying with the initial prerequisites, he said he swore to a witness statement on oath on 17th July, 2012. This was tendered and admitted as exhibit without objection. Another document was tendered and admitted in evidence without objection. These two documents will be referred to in the course of writing the judgment as occasions demand. At this stage, the examination-in-chief was brought to an end. The case thereafter proceeded to cross-examination by Mr. Gbenga Bello for the claimant. Under cross-examination, DW 1 said that he currently worked at the International Aviation College, Ilorin, Kwara State. He said he earned N500, 000 a month but that while at the employment of the 2nd Defendant his total pay on monthly basis was N1, 200, 000. He said the employer fixes the pay of a pilot in accordance with the National Convention in the industry. He said in Nigeria there is modification where what is payable to a pilot can be found.

Further under cross-examination, DW said that the basis of his earning N1million per month is the verbal agreement between him and Captain Edward Boyo with regard to his instruction to him to check what the other airlines paid to their captains. He said the verbal agreement was after he signed the written agreement and that it was not part of the direct contract agreement contained in exhibit CLW1A & CLW1B that he should be paid N10, 000 or its dollar equivalent for extra work. He agreed that he did not put noncompliance with the conditions of service as one of the reasons he tendered his resignation in exhibit CLW1E. He said he did not make any written complaint to the aviation authority concerning his complaints against the airworthiness of the claimant’s aircraft. He said he would not know if any person has complained to the regulatory body against the claimant. He said he is not aware of any sanction by the regulatory authority against the claimant. He agreed that the regulatory authorities carry out periodic inspections on the activities of the airlines and that the claimant is also subject to the authority’s periodic inspections. He stated that instead of causing problem he decided to quit without reporting the infractions by the claimant to the regulatory authority.

Still under cross-examination, DW said that he attended the ground training school for ATR42 Aircraft in France. He agreed that the claimant paid for the training which he attended around June 2007. He said he attended a recurrency training in France for 6 months and that it was paid for by the claimant who was required to pay it. He said he signed his resignation letter and also signed his direct contract agreement by himself. He agreed that he signed exhibit DWIA – F by himself. He said however that out of the three documents he admitted signing two are the same while one is not the same as his initials. He said he did not have an irregular signature. He said he had three similar signatures that he used. He said he had looked at exhibits CLWIB – CLWIB3 and CLWID – CLWID2. He said he did not sign exhibit CLWID but signed exhibit CWLIB because it was put amongst the other documents. He said he had a lawyer and instructed Oluyede & co. to write the claimant on his behalf in exhibit CLWI. He said he did not know whether any report of forgery was made against the claimant to the police. He maintained that he did not know whether any allegation was made against the claimant to the police. He agreed that he attended an interview with the 2nd defendant. He agreed that he was asked at the interview about his obligation with the claimant and that he said he only had obligation to give one month notice of resignation, and that, he did not disclose any bond to the 2nd defendant. This ends the cross-examination by counsel to the claimant. The case proceeded to cross-examination by counsel to the 2nd defendant: Mr. Chikwendu.

Under cross-examination by the counsel to the 2nd defendant, DW 1 answered that by his direct contract agreement he was employed for a period of three years. He said there was no agreement between him and the claimant extending the tenure of his employment. He agreed that it is true that he flew ATR42 last on 13th February 2008. He said on this date he flew the aircraft to Dionard, France for maintenance. He said prior to when he flew it to France, it had accumulated a lot of snags [problems]. He said after his flight, on 11/07/2008, the said aircraft was grounded. He said further that ATR42 returned to Nigeria from Dionard in November 2008 but that though he was not quite sure of the year. He said the claimant employed him as Senior Flight Officer but was later promoted a captain but that he had no document employing him as a captain. He said he had no new document as condition of service as a captain but that he had a letter that he had been promoted to a captain. He said the conditions of service given him were arbitrary and that he complained. He said he did not fly ATR42 for the 2nd defendant. At this stage, the cross-examination by the counsel to the 2nd defendant was brought to an end. There was no re-examination. At this stage, the Court ordered that written addresses be filed on when to subpoenaed an officer from the Forensic Department of the Nigeria Police on the issue of forgery of signature and the procedure to follow. The case was adjourned to 30/07/13 for adoption these addresses. Ruling was delivered on 4th October, 2013. And the case was thereafter adjourned to 11th and 12th November, 2013 for

the continuation of 1st defendant’s defence.

The case however came up next for hearing on the 2nd May, 2014. DW2 was called by the counsel to the 1st defendant. He gave his name as Mr. Raphael Onuzuligbo, an ASP in the Police Force. He said he is a forensic document examining officer attached to the Forensic Science Laboratory ‘D’ Department, Force CI.D. Annex, Ikoyi, Lagos. He said he deposed to a witness Statement on Oath on the 30/10/13. He thereafter said he wished to adopt this as his evidence in the case. The witness Statement on Oath was thereafter admitted in evidence as DW2A – DW2A2 without objections from the opposing parties. This will be referred to later as occasion demands. He said a request by a letter dated 21st May, 2013 by TRLP Law Firm to analyze the signatures in the relevant columns of documents at the points marked ‘A’, ‘B’, and ‘C’ was received and forwarded to him. This letter and its annexures were admitted in evidence without objection as exhibits DW2B – DW2B7. Other documents relating to the case were also tendered and admitted in evidence for the 1st defendant without objection. These documents will be referred to specifically as occasions demand in the course of writing this judgment. After tendering all these documents, the examination-in-chief of DW2 was brought to an end. The 2nd defendant’s counsel declined to cross-examine DW2. The case therefore proceeded to cross-examination by the counsel to the claimant.

Under cross-examination by the counsel to the claimant, DW2 answered that the request sent to him was to determine whether the three documents were signed by the same person in the relevant columns and that the request was per exhibit DW2B. At this point, counsel to the claimant cross-examiner applied for adjournment which was granted though with objection. Case adjourned to 4th June, 2014. The case however came up next for hearing on the 10th November, 2014. On this date counsel to the claimant stated that they were no longer interested in further cross-examining DW2 and that DW2 should therefore be discharged. DW2 was accordingly discharged. Thereafter, counsel to the 1st defendant applied to close the case of the 1st defendant and this was granted. Case was thereafter adjourned to 3rd December, 2014 for the 2nd defendant to open defence. It however came up on the 2nd December, 2014. On this date, the 2nd defendant opened its case with its counsel calling DW3 in evidence.

In his evidence in chief, DW3 who gave his name as Babangida Ahmed, said he worked with the 2nd defendant as the Station Manager/Operations Manager. He tendered his witness statement on oath. He also tendered a host of other documents. They were all admitted in evidence without objection. These documents will be referred to in the cause of this judgment as the needs arise. At the end of tendering all these documents and their admittance, the examination-in-chief was brought to an end. The case thereafter proceeded to cross-examination by counsel to the 1st defendant. Under cross-examination by counsel to the 1st defendant, DW3 stated that he is Babangida Ahmed. He said as the Operating Manager to the 2nd defendant he was a member of the panel that interviewed the 1st defendant and that they did ask the 1st defendant if he was under any employment and he said no and that he had no reason to doubt him. He said he is not aware of any law that forbids the 2nd defendant from employing the 1st Defendant if he just left his former employment. At this stage, the cross-examination was called off by counsel to the 1st defendant. The case thereafter proceeded to cross-examination by the claimant’s counsel.

DW3 stated that he is a holder of M.SC in Transport and Logistics from the Ahmadu Bello University, Zaria. He said as the Station Manager, he was responsible for the day-to-day activities of the Station of the 2nd defendant. He said he was employed in May, 2000. He said he was Assistant Flight Dispatcher and that in 2004 he became a Flight Despatcher and that, in 2006, he became Assistant Operations Manager, and that in 2008, he became Operations Manager while in 2010 he became Stations Manager, Lagos. He said further that he was never in the Human Resources Department of the 2nd defendant. He equally said he did not attend any Human Resources Management Course. He said though he was not trained as Human Resources personnel, but that by virtue of his being the Operations Manager, he was required to be at the interview of any pilot to be appointed by the 2nd defendant. He said his requirement to be at the interview panel is a technical matter. He said Captain Gamra was interviewed by the 2nd defendant on 1st July, 2008 if his memory is correct. He also said Captain Gamra did not tell the interview panel that he signed any training bond with the claimant. He said Captain Gamra was asked if he had any outstanding obligation with the claimant and he said no. He agreed that there is a Human Resources Department in the 2nd defendant.

Continuing under cross-examination, DW3 stated that members of the Human Resources Department were in the interview panel. He said they believed the 1st defendant when he said he had no outstanding obligation to any employer. He said he had heard of reference check and that he knows what it is. He said a reference check is the document sent by employer to other organisation to confirm claims made in CVs. He said it was not to his knowledge if the 2nd defendant wrote the claimant to check from it. He said he had seen exhibit DW3G – DW3G27 before this case was transferred from the Lagos State High Court to this Court. He confirmed that he stated in his witness Statement on Oath that the training bond agreement dated 4th May, 2007 between the claimant and the 1st defendant was

unreasonable and in restraint of trade. He said by this agreement the 1st defendant’s employment was for three years and that the bound said he was bonded for five years. He said to him as a layman, this was in restraint of trade. He said the 1st defendant resigned from the claimant in June, 2008. He said they were not aware of his resignation when they called him for interview in July, 2008. The cross examination by the claimant was brought to an end at this point. There being no re-examination, the case was adjourned to 05/02/15 for the adoption of the final written addresses of counsel to all the parties.

However, the matter came up next on the 11th February, 2015. On this date, counsel to the claimant was not in Court but explained his absence via the Court’s Registrar. Counsel to the 1st defendant, Mr. Omobola Akinjide moved a motion to have the 1st defendant’s final written address filed out of time deemed as properly filed and served. The counsel to the 2nd defendant did not oppose. Hence, the Court deemed as properly filed and served, the 1st defendant’s final written address filed on 4th February, 2015. The case was thereafter adjourned to 14th and 15th 2015. It came up on the 15th April, 2015. On this date, counsel to the claimant informed the Court of the filing of the claimant’s final written address late without the payment of penalties and the need to bring in an affidavit. On these bases, counsel applied for an adjournment. There was no opposition from the other counsel. The case was accordingly adjourned to 5th and 6th May, 2015 for hearing and adoption of final written addresses. It however came up on the 23rd June, 2015. On this date, counsel to the 2nd defendant informed the Court of filing their counter-affidavit in opposition to the claimant’s affidavit to reopen the case and their motion for extension of time and a deeming order on their lately filed counter-affidavit. There being no opposition, the Court granted the prayer. The counter-affidavit of the 2nd defendant filed out of time on 15/06/15 was deemed properly filed and served. The Court also allowed the counsel to the claimant/applicant, on this application, to insert date on his undated motion on notice. Consequently, the 30th April, 2015 was inserted on the motion.

Counsel to the claimant thereafter moved the said motion and asked for an order of the Court to reopen the case by calling another witness to tender a public document or in the alternative to allow the public document to be tendered from the Bar. The application was opposed by counsel to the 2nd defendant. Ruling on the application was thereafter adjourned to 16/07/15. However, the matter came up next on 6th October, 2015, and the ruling on the application was delivered. The case was subsequently adjourned to 3rd November, 2015 for adoption of final written addresses. It however came up on the 11th November, 2015. Miss. Ibeka for the 2nd defendant adopted their final written address dated 18/12/14 and filed same day. Mr. Gbenga Bello for the claimant adopted the final written address of the claimant dated 13/04/15. In the absence of counsel to the 1st defendant in Court despite the service of hearing notice for the Court’s sitting on him, the Court suo motu adopted the final written address of the 1st defendant dated and filed on the 4th February, 2015 and also their reply on points of law dated 7th May, 2015 but filed on 8th May, 2015. Thereafter, the case was adjourned to 7th January, 2016 for judgment.

Having carefully narrated the records of proceedings let me next proceed to summarise the final written addressees of the parties. In doing this, I shall take the final written addresses of the defendants first, one after the other; then that of the claimant, and finally the reply on points of law. Hence, I proceed with the final written address of the 1st defendant. In arguing the address, Funmilayo Odude, who settled the written address formulated two issues for the determination of the dispute. They are as reproduced hereunder:

1. Whether the Claimant is entitled to any reliefs sought in this suit. [sic]

2. Whether the 1st defendant/counter claimant is not entitled to the reliefs sought in its counterclaim. [sic]

ISSUE 1

Whether the Claimant is entitled to any reliefs sought in this suit?

Counsel submitted that the training bond agreement [exhibits CLWB and D] is illegal by requiring 1st defendant to fly the ATR42 aircraft beyond the six month licence obtained which is against the Civil Aviation Regulations 2009 [table 2 under 1S 1.3.3 (B)] and also contrary to public policy by its restraints of trade and as such that the 1st defendant is not bound by it. Counsel submitted that the fact that the aircraft in issue could only be flew for six months before another mandatory certification training, called refresher training or recurrency training, is taken was confirmed by CW1 under cross examination when she admitted that the pilot is required for a refresher training to keep the type-rating current. Counsel argued that the two bonds compel the 1st defendant to fly the aircraft beyond the six-month validity period of the licence, as the first binds the 1st defendant for sixty months [five years] while the second binds him for twelve months [one year]. Counsel argued that this is in spite of the fact that the 1st defend can only fly the aircraft for six months before a refresher mandatory course. Counsel therefore submitted that the performance of the agreements is

therefore illegal. Counsel cited Alao v. A.C.B. Ltd [1998] 3 NWLR (Pt. 542] 339 at 355, para. E – H and W.C.C Ltd v. Batalha [2006] 9 NWLR [Pt. 986] 595 at 621, para. H, 622, para. D. on illegality of contracts; and Tanksale v. Rubee Medical Centre Ltd [2013] 12 NWLR [Pt. 1369] 548 at 572, paras. G – H, on when a contract is contrary to public policy. Counsel argued that while it is conceded that training bonds are generally legal as a means of recruiting an employer’s, investments in the trainings of its staff, it becomes contrary to public policy whenever the bond seeks to tie the bondman to a period longer than the licence obtained in such training. Counsel argued that the cumulative effect of the scenario whereby after the first training, the 1st defendant was bonded for 5 years and after the first six months interval training, he was again bonded for an extra 1 year plus the initial 5 years, meant that at each six-moth compulsory interval training, the 1st defendant would have continually been bond for an extra 1 year cumulatively like that, if he had not resigned his appointment. Counsel argued that the implication of this was that the claimant had cleverly devised a means whereby an employee would be in his employment for ever without the right to resign or to resign at peril of paying a cost to it. Counsel submits that this is unconscionable and contrary to public policy. Counsel therefore invited the Court to invoke the principle of ex turpi causa non oritur actio, which is to the effect that an unconscionable contract cannot be enforced, in favour of the 1st defendant.

Counsel argued further that any bond which seeks to extend the validity period above the expiration period of benefits conferred must be considered exploitative and against public policy. Counsel cited Onwuchekwa v. NDIC [2002] 5 NWLR [Pt. 760] 371 at 391, para. G, 392 para. A, to the effect that a court of law has the duty to weigh which side is entitled to relief in disputes relating to enforceability of a contract contrary to public policy. Counsel also argued the fact that the claimant did not lead any evidence to show the cost of the trainings on which the 1st defendant is bonded should weigh heavily against it.

Counsel argued that the fact that the 1st defendant denied signing exhibit CLWD both in his statement on oath and under cross examination and equally and called in a forensic expert who confirmed this together with the fact that no contrary evidence was produced in rebuttal are enough to make the Court rely on the testimony of the 1st defendant and hold that truly the 1st defendant did not sign exhibit CLWD, the bond dated 11th January, 2008. Counsel submitted that the position of law is that a court of law cannot ordinarily reject expert evidence. Counsel cited section 101 (1) of the Evidence Act 2011 and Olowu v. B.S. Ltd [2010] 2 NWLR [Pt. 1178] 310 at 331, para. D and Okamgba v. Eke [2009] 16 NWLR [Pt. 1166] at para. F. Counsel also cited Fasakin v. Siwoku [2009] 16 NWLR [Pt. 1167] 305 at 323, para. G, and 324 para. A., to the effect that while a court can reject expert evidence it cannot do so in a cavalier manner when the opposition did not call another expert to dispute the result of highly technical analysis done by expert who compared the signatures. Counsel also cited Boye Ind. Ltd v. Sowemimo [2009] 10 NWLR [Pt. 1148] 136 at 161, paras. B – C, to the same effect as the preceding authority. Counsel therefore submitted that arising from these authorities, this Court is bound to accept the evidence of DW2 in this regard that 1st defendant did not sign exhibit CLWD. Counsel also submitted that it is the duty of the claimant to prove the signature of the exhibit it intends to rely on and that failure in this regard is fatal to that aspect of his case. Counsel cited Odudu v. Onyibe [2001] 13 NWLR [Pt. 729] 140 at 159, paras. A

– B in support of his submission that the claimant has the duty to prove that the 1st defendant actually signed exhibit CLWD once it was denied by the 1st defendant. Counsel then submitted that since the claimant has failed in this regard, the Court should dismiss its case.

Counsel thereafter went to argue that the claimant is not entitled to any damages. Counsel argued that the fact that the 1st defendant used his one month salary to pay off the one month salary in lieu of notice which either party is obliged to give in terminating the employment; he is no longer bound to be in the employment of the claimant. Secondly, counsel argued that the damages claimed are specie of special damages which are required by law to be proved to the hilt and that the Court cannot arrive at this by conjecture, assessment or estimation. Counsel cited Cameroon Airlines v. Otutuizu [2011] 4 NWLR [Pt. 1238] 512 at 544, paras. A – B; and Spring Bank Plc v. Adekunle [2011] 1 NWLR [Pt. 1229] 581 at 601, paras. G – H, 602, para. F. Counsel argued that the claimant has not sufficiently shown that in deed the 1st defendant was responsible for its alleged loss. Counsel argued that the evidence before the Court is to the effect that the 1st defendant flew the ATR42 to France in February, 2008 for maintenance work and that the aircraft was not returned until June, 2008 when the 1st defendant resigned. Counsel argued that the implication was then that any loss inquired was not by any default of the 1st defendant but due to the long duration of the maintenance work. Counsel argued further that up till now the claimant has not put before the Court any evidence to show when the maintenance work was completed and the aircraft actually returned to Nigeria and flights actually commenced.

Counsel went further to argue that the Court cannot even believe the evidence of DW1 on this issue of damages because she gave two contradictory pieces of evidence on the issue. Counsel argued that in the earlier statement on oath of the witness at the Lagos State High Court, she earlier said the aircraft lost N200, 000 per day but turned around

in her statement on oath in this Court to say it was N1, 700, 000. Counsel argued that when asked about this disparity under cross-examination, DW1 could not explain this disparity. Counsel submitted that by the authority of Igbi v. State [1998] 11 NWLR [Pt. 574] 419 at 431, paras. C – D, whenever a court is faced with two contradictory statements of a witness, one in previous situation and the other at trial, the court is bound to discountenance both. Counsel then submitted that the Court should reject in totality the evidence of DW1 on the issue of entitlement to damages.

ISSUE2:

Whether the 1st defendant/counter claimant is not entitled to the reliefs sought in its counterclaim?

Counsel submitted that by a letter dated 9th November, 2007, the 1st defendant was promoted from the rank of Senior First Officer to that of Captain with effect from October 17, 2007 and that the salary will be adjusted accordingly. Counsel argued that the salary was adjusted to N567, 250.00 but the 1st defendant protested against this orally to Captain Boyo, the proprietor of the claimant. Counsel argued that by two different oral agreements the 1st defendant had with the claimant via Captain Boyo, the proprietor of the claimant, his salary was agreed to be adjusted to N700, 000 per month with effect from October, 2007. Counsel argued that, but contrary to the oral agreements, the claimant only began to pay the sum from January, 2008. Counsel argued that the 1st defendant is therefore owed 3 months of the balance to make up the N700, 000 monthly salary agreed upon. Counsel argued that the total of the arrears in issue is N396, 750. Counsel argued that the defence of the claimant through the testimony of DW1 that no such agreement was reached could not hold water in that Captain Boyo, who struck the contract was the only person who can controvert its existence; and that since this has not been done, the evidence of the 1st defendant on the counter-claim remained unassail. On this proposition of the law, counsel cited Okike v. L.P.D.C. [2005] 15 NWLR [Pt. 949] 7 to that the Court can rely on uncontroverted evidence. Counsel argued that though it is preferable to enter into written agreement but that nonetheless, oral agreements duly proved remains enforceable. On this, counsel cited Metibaiye v. Narelli Int’l Ltd [2009] 16 NWLR [Pt. 1167] 326 at 349, paras. B – C and U.T.C. Nig. Plc v. Philips [2012] 6 NWLR [Pt. 1295] 136 at 163, paras. G – H.

Counsel argued further that the 1st defendant is also claiming the sum of USD10, 000 as outstanding fees for ferrying the claimant’s aircraft from Lagos to Dionard France. Counsel argued that the 1st defendant testified before the Court that the claimant agreed to pay USD10, 000 for this service and that the said sum has remained unpaid. Counsel stated that in rebuttal, the claimant/defendant to counter-claim testified that by virtue of paragraph 3c of Direct Service Contract, the service rendered by the 1st defendant/counter-claimant in ferrying the aircraft to France was part of the 1st defendant schedule of duties. Counsel reproduced the said clause to show that the operational base of the 1st defendant was Nigeria or West Africa, and not France, which is clearly outside the agreed work location. Counsel argued that it follows that the claimant/defendant to counter-claim has not put anything before the Court to show that flying the aircraft to France was part of the schedule of duties of the 1st defendant/counter-claimant under the Direct Service Contract. Counsel argued that this fact is proved by the fact that various tickets and daily sales [exhibits CLWBE – 01-061] returns of the ATR42 were local tickets evidencing the fact that the 1st defendant/counter-claimant was engaged solely for local flights, and that on the contrary and that there is no indication that he ever flew the plane on any international route. Counsel submitted that the evidence before the Court showed further that the flight to Dinard was one-time off schedule flight outside the scope of the 1st defendant/counter-claimant’s regular duties. Counsel therefore urged the Court to believe the testimony of the 1st defendant/counter-claimant on this issue which evidence had not been denied by the claimant/defendant to counter-claim. Counsel cited Okike v. L.P.D.C [supra] and Metibaiye v. Narreli Int’l Ltd [supra]. Counsel also cited Amuzie v. Asonye [2011] 6 NWLR [Pt. 1242] 19 at 42, para. H to the effect that where an allegation is not frontally and specifically denied, it is deemed admitted. Finally, on this issue, counsel urged the Court to award the 1st defendant/counter-claimant the sums of N396, 750 AND USD10, 000 as claimed by the 1st defendant/counter-claimant.

Counsel thereafter moved to the issue of libel allegedly committed by the claimant against the 1st defendant. Counsel asserted that there is evidence before this Court that the claimant wrote a letter [exhibit CLWH] dated 20th August, 2008 to the 2nd defendant/employer of the 1st defendant. Counsel asserted that in the said letter, the claimant alleged that the 1st defendant was indebted to it to the tune of N9, 075, 969.00 arising from the breach of contract with it. Counsel argued that the intent of the letter was to portray the 1st defendant as an irresponsible person. Counsel asserted that there is evidence from the 1st defendant before this Court that after the said letter, the 2nd defendant issued the claimant series of queries on this issue and negatively changed her attitude to the 1st defendant. Counsel also asserted that there is evidence before this Court that the 1st defendant caused to be written to the claimant a solicitor’s letter [exhibit CLW1] demanding that these allegedly libelous accusations be withdrawn but that this fell on deaf ears as the alleged accusations were never retracted. Counsel submitted that there are three fundamental elements to prove to establish libel. Counsel said these are:

1. “That there is the of publication of the material complained of by the defendant;

2. That the publication refers to no other person but the plaintiff conclusively;

3. That the publication is defamatory of the plaintiff.”

Counsel argued that the claimant has admitted that writing the said letter and actually tendered it before the Court; and that as such, the first element has been established. He cited Din v. African Newspaper Ltd [1990] 3 NWLR [Pt. 139] 392 and Nwuke v. UBN Plc [2009] 10 NWLR [Pt. 1148] 1. Counsel submitted that the Supreme Court had held in Onu v. Agbese & 1 Or. [1985] 1 NWLR [Pt. 4] 304 that a plaintiff must not only prove the publication of defamatory matter but must further proved that the publication referred to him specifically. Counsel argued that exhibit CLWH clearly refers to the 1st defendant/counterclaimant by name and that this fact has been admitted by the claimant/defendant to counter-claim. Counsel therefore moved to the third element. Counsel cited Sketch v. Ajagbemokefei [1989] 1 NWLR [Pt. 100] 678 at 703, para. C to the effect that a person is entitled to the protection of his good and that the tort of libel is committed whereby the plaintiff is established that the statement is defamatory of him in the sense that: i. It lowered him in the estimation of right-thinking members of society;

ii. It exposed him to hatred, ridicule or contempt;

iii. It injured his reputation in his office, trade or profession; or

iv. In injured his financial credit.

Counsel submitted that in determining whether the words complained of are defamatory, the Supreme Court had equally held in Sketch v. Ajagbemokeferi [supra] that the words must be construed in the ordinary meanings which would be accorded them by reasonable and ordinary members of the society. Counsel argued that the publication in question was written to the 1st defendant’s employee and that they portrayed him as a dubious and untrustworthy employee. Counsel argued further that there was no other reason for the publication other than to make the employer become hostile to the 1st defendant. Counsel argued that this effect was actually achieved as the 2nd defendant/employer of the 1st defendant actually became hostile to him and even issued him series of queries on the basis of the allegations contained in the publication. Counsel submitted that the natural meaning to be inferred from these words are that the counter-claimant is not a fit person to be employed or to be trusted with contract. Counsel argued that the claimant pleaded justification; and by the authority of Digby v. Financial News Ltd [1907] 1 kb 502 at 509, a plea of justification means that all the published words are true and covers the natural imputations arising from these words. Counsel argued that the imputation is that the 1st defendant dubiously left the employment of the claimant in breach of training bonds. Counsel submitted that assuming that the bonds in issue are enforceable, a perusal of the bonds [exhibits CLWB and CLWD] before this Court would show that they do not prevent the claimant from leaving the employment of the claimant and that the only option open to the claimant was to sue the 1st defendant, like it has now done and not to malign him before his employer. Counsel argued that the only reason for the publication of the defamatory matters was to injure the claimant in his place of work, which shows the malice aforethought.

Counsel argued that by virtue of Iloabachie v. Iloabachie [2005] 13 NWLR [Pt. 943] 695 at 712, paras. G – H, the defence of privilege can only avail a defendant where it shown that the person who makes the documentation has a duty to make it to the person to whom it was made and that the person who received had an interest in hearing it. Counsel also submitted that by the authority of M.T.S. Ltd v. Akinwunmi [2009] 16 NWLR [Pt. 1168] 633 at 652, para. G, 653, para. C, that the defence of qualified privilege can be negative by evidence of actual or express malice; hence the motive for making a defamatory publication becomes crucial. Counsel also cited the Supreme Court in Mamman v. Salaudeen [2005] 18 NWLR [Pt. 958] 478 to the effect that there was no obligation on the part of the claimant/defendant to counterclaim to inform the employer of the 1st defendant/counter-claimant of the existence of the training bond and that thus, it is clear that the unsolicited information was done out of malice.

Counsel argued that arising from the above; the 1st defendant/counterclaimant is therefore entitled to damages. Counsel cited Guardian Newspapers Ltd v. Ajeh [2011] 10 NWLR [Pt. 1256] 574 at 603, paras. F – G that once libel is proved the plaintiff is automatically entitled to damages without the need to prove he has suffered any resulting actual damage or injury. Counsel also cited FBN v. Aboko [2007] 1 NWLR [Pt. 1014] 129 at 150, paras. E – F to the same effect. Counsel finally urged the Court to grant damages as sought by the counter-claimant; and thereafter also urged the Court to dismiss the suit of the claimant and to grant the counter-claim.

I now move to the final written address of the 2nd defendant. In arguing the address, C. I. C. Chikwendu who settled the address, formulated 4 issues: these issues are as reproduced hereunder:

1. Whether the Claimant and 2nd defendant have the legal capacity to sue and be sued. [sic]

2. Whether the sums of N7, 500, 000 in Exhibit CLWB1 – B3 and N1, 575, 969 in Exhibit CLWC – C1 provided to be paid by the 2nd Defendant upon leaving the services of the Claimant do not amount to penalty. [sic]

3. Whether the provisions of clause 4, 5 and 6 of Exhibit CLWB1 – B3 are not in restraint of trade. [sic]

4. Whether the 2nd Defendant is liable for interference or inducing a breach of the Claimant’s contracts with the 1st Defendant. [sic]

ISSUE 1:

Whether the Claimant and 2nd defendant have the legal capacity to sue and be sued?

Counsel submitted that issues had been joined in their respective pleadings on whether or not the claimant is a legal personality. Counsel maintained that the claimant not been a legal person cannot maintain this action. Counsel also argued that the 2nd defendant is not a legal personality that can be sued, notwithstanding that the claimant wrongly called it Chanchangi Airlines Nigeria Limited to give it an appearance of legal personality but that its real name is Chanchangi Airlines without the word ‘limited’. Counsel cited Fawehinmi v. NBA [NO. 2] [1989] 2 NWLR [Pt. 105] 558 at 595; Management Enterprises Ltd. v. Otusanya [1987] 2 NWLR [Pt. 55] 179; Shitu v. Ligali [1941] 16 NLR 116; Olu of Warri v. Essi & Anor. [1958] 2 FSC 94; Agbomagbe Bank Ltd v. General Manager, G.B. Olivant Ltd & Anor. [1961] All NLR 116. Counsel argued further that issues having been joined on the whether or not the claimant and the 2nd defendant are legal personalities that can sue of be sued, the claimant is duty bond to lead evidence in prove of its legal personality while the claimant is also bound to show that the 2nd defendant/counterclaimant is also a legal personality that can be sued, the 2nd defendant having denied being a legal personality. In support of this contention, counsel cited Edosomwan v. Ogbeyfun [1996] 4 SCNJ 21 at 29.

Counsel went further to submit that he who asserts must prove and cited Imana v. Robinson [1979] 3 – 4 SC [Reprint] 1 at 6 – 7, paras. 15 – 15 to buttress this contention. Counsel also cited ACB Plc v. Emostrade Ltd [2002] 4 SC [Pt. II] 1 at 7 when issues are joined the person who bears the burden to lead evidence must lose if no such evidence is led. Counsel argued that the mere fact that the word ‘limited’ is added to the name of a company is not sufficient prove that such a company is a legal personality. Counsel cited ACB Plc v. Emorstrade Ltd [supra] to anchor the submission that the nature of evidence that can prove that a company is a legal personality is the production of its certificate of registration. Counsel also cited Registered Trustees of Apostolic Church v. A.G. Mid-Western State [1972] NSCC [Vol. 7] 247 on the same issue. Counsel also cited Randle v. Kwara Breweries Ltd. [1986] 6 SC 1 and ACB Plc v. Emostrade Ltd [supra] at 11 to the effect that where a plaintiff sued a defendant as an incorporation which status the defendant denied, the plaintiff is duty bound to lead evidence by production of the certificate of registration of the defendant to succeed in its case. Counsel submitted that this being the case, the claimant has failed woefully to satisfy the burden placed on it. Counsel argued on the authority of Okechukwu & Sons v. Ndah [1967] NMLR 368 that in situations whereby the defendant sued is not a legal personality, its name should be struck off the suit and that if it is the plaintiff; its entire suit should be struck out. Counsel therefore urged the Court to strike out the name of the 2nd defendant from the suit and also strike this suit. Counsel thereafter moved to his issue 2.

ISSUE 2:

Whether the sums of N7, 500, 000 in Exhibit CLWB1 – B3 and N1, 575, 969 in Exhibit CLWC – C1 provided to be paid by the 2nd Defendant upon leaving the services of the Claimant do not amount to penalty?

Counsel argued that by exhibits CLWB1 – B3 and CLWC – C1 the 1st defendant’s original contract to work for the claimant for 3 years was bond to remain in the claimant’s service for 60 months [5 years] on the basis of the cost of training which the claimant arbitrarily fixed at N7, 500, 000 and N1, 575, 969, which sums, the claimant bond the 1st defendant to pay in the event of leaving its service before the expiration of the 60 months via exhibits CLWB1 – B3 and CLWC – C1. Counsel argued that what loss the claimant would suffer if the 1st defendant left its service was not stated or proved and that claimant did not proffer any evidence in support of how it arrived at the at the sums of money stated. Counsel also argued that a close perusal of exhibits CLWA1 – A3 and CLWB1 – B3 showed that the sum of N7, 500, 000 was fixed and made binding on the 1st defendant just two days after he was employed quite before any arrangement for the training was made. Counsel submitted that these sums were quite greater than any loss the claimant would sustain in the event of the 1st defendant leaving its service before the expiry of the bond period and that it is clear that the intendment was to compel the 1st defendant to remain in its service; and that as such, they amount to penalty. Counsel submitted that a contractual clause is said to be amount to a penalty if its aim is to compel the bonded part to perform the contract or it is extravagant or unconscionable in comparison with the greatest loss that could conceivably be proved. Counsel submitted that a penalty clause is invalid and unenforceable, and cited Dunlop Pneumatic Tyres Co. Ltd. v. New Garage & Motor Co. Ltd [1915] A.C. 79. Counsel submitted further that the provisions in exhibits CWLB1 – B3 and CLWC – C1 are penal and therefore invalid and unenforceable. Counsel thereafter moved to issue 3.

ISSUE 3:

Whether the provisions of clause 4, 5 and 6 of Exhibit CLWB1 – B3 are not in restraint of trade?

In arguing this issue, counsel submitted that a form of illegality in contracts is a contract that is contrary to public policy. Counsel argued that employment and labour practices hold as sanctity the freedoms of an employer and employee to choose whom to work with, and that, any contract in restraint of these freedoms is as being in restraint of trade and hence, contrary to public policy. Counsel cited Bull v. Pitney-Bowes Ltd [1967] 1 W.L.R. 273; CFAO v. George Leuba [1918] 3 NLR 67; John Holt & Co. [Liverpool] Ltd. v. Chalmers [1918] 3 NLR 77 to buttress this submission. Counsel argued further that the 1st defendant was employed on 2nd May, 2007 vide exhibit CLWA1 – A3 and that this fixed his tenure to 3 years. Counsel argued that just two days after employing the 1st defendant, without any review of the tenure of the employment, the claimant bond the 1st defendant to remain in its employment for 5 years beyond the agreed tenure with a threat that he would have to pay the sum N7, 500, 000 if he left before the expiration of 5 years. Counsel argued that this is tantamount to compelling the 1st defendant to work for the claimant against his will beyond the agreed time. Counsel argued that on the basis of the above, clauses 4, 5 and 6 of exhibits CLWB1 – B3 are unreasonable, in restraint of trade and against public policy; and that, they are also in breach of exhibit CLWA1 – A3. Counsel argued that any bond in restraint of trade can never be reasonable unless it is established that the beneficiary has some proprietary interests which requires protection against the activities of the bondman. Counsel submitted that since it was neither pleaded nor evidence led that, there was any proprietary interest of the claimant which the restraint sough to protect, clauses 4, 5 and 6 of exhibits CLWB1 – BE are therefore unreasonable and so invalid. Counsel cited Morris v. Saxelby [1916] 1 A.C. 688 to the effect that the length of restraint is the measurement of its unreasonableness. Counsel subsequently moved to his issue 4.

ISSUE 4:

Whether the 2nd Defendant is liable for interference or inducing a breach of the Claimant’s contracts with the 1st Defendant?

Counsel submitted three contracts were allegedly breached and that to succeed in an action based on unlawful interference of contract; the claimant in this case, must establish the following:

1. That the contracts allegedly breached was not determinable at the instance of either the parties;

2. That the 1st defendant did not resign his appointment as provided under the contract;

3. That the 2nd defendant did not interfere with the contracts negligently;

4. That the 2nd defendant had knowledge of the contracts allegedly breached;

5. That the 1st defendant would otherwise have returned to the services of the claimant;

6. That the claimant suffered actual and not simulated loss; and

7. That the contract allegedly interfered with are not void.

Counsel submitted that by clause 12 of exhibit CLWA1 – A3, either party to the contract had the right to determine it by giving one month’s notice or payment in lieu therefore. Counsel argued that where a contract is determinable at will by either of the parties, even where there is proof that the defendant induced a party to determine the contract, it is not actionable in law. Counsel cited McManus v. Bowes [1938] 1 KB98, [1837] 3 All E.R. 227. Counsel submitted that in the extant case, the 1st defendant validly resigned his appointment with the claimant vide exhibit CLWE. Counsel submitted that the 1st defendant’s salary for June, 2007 which the claimant retained amount to payment in lieu of notice. Counsel also cited Allen v. Flood [1898] A.C. 1; Jose v. Metallic Roofing Co. of Canada ltd. [1908] A.C. 514 to the same effect. Counsel argued that the 1st defendant told the 2nd defendant before being employed that he had resigned his earlier appointment and the 2nd defendant believed him and that exhibit CLWE and the payment of one month salary in lieu of notice are a proof of proper resignation. Hence, counsel submitted that it would be improper to say the 2nd defendant induced the breach of the contract in exhibit CLWA. Counsel also submitted that the fact that the 2nd defendant did not refer to the claimant before employing the 1st defendant cannot be equated to the 2nd defendant’s guilt of interference with contract but could only at best be tantamount to negligence on its part and negligent interference cannot amount to the tort of interference. Counsel cited Cattle v. Stockton Waterworks Co. [1875] LR 10.

Counsel further submitted for the 2nd defendant to be liable for interference, it must be proved the 2nd defendant has actual or constructive knowledge of the contract. On this, counsel cited British Industrial Plastics Ltd. v. Ferguson [1940] 1 All E.R. and Lumley v. Gye [1853] 2 E & B.26. Counsel argued that the 2nd defendant had no knowledge of the contracts in exhibits CLWB1 – B3 and CLWC – C1 and that this fact was pleaded and evidence led thereof, and that this fact was even corroborated by the claimant’s witness under cross examination. Counsel said the witness to the claimant had responded to the question whether the 2nd defendant was notified of these contracts and the witness replied that they could not have been notified as the 1st defendant was still in the employment of the claimant at the time. Counsel submitted that the 1st defendant further corroborated the fact when under cross examination he admitted that he did not disclose his obligations to the 2nd defendant during interview for the job. Counsel argued that the belated notification of the existence of these contracts and obligations contained in the letter written to the 2nd defendant by the claimant after the 1st defendant had been employed cannot support a proof of the tort of interference as the act of interference must occur prior to and not after the inconsistent employment. On this, counsel cited Sleigh v. Blight [1969] V.R. 931.

Counsel argued further that the claimant failed to prove that the 1st defendant would otherwise have returned to it, and that this is an essential requirement of the tort of interference; and counsel cited Jones Bros. v. Stevens [1955] 1 Q.B. 275 in support of the proposition of law. Counsel also submitted that incurring actual damages or loss is one of the gist of the tort of interference and that it is lacking here as the claimant had failed to adduce evidence in this regard. Counsel cited Ward, Lock & Co. Ltd v. Operative Printers’ Assistants’ Society [1906] 22 T.L.R. 327 at 329; National phonograph Co. Ltd. v. Edison-Bell Consolidated Phonograph Co. Ltd [1908] 1 Ch. 335 at 369-370; Goldsoll v. Goldman [1914] 2 Ch. 603 at 615; Workman and Army and navy auxillary Cooperative Supply Ltd. v. London and Lanchashire Fire Insurance Co. [1903] 19 TL.R. 360; and british plastics Ltd v. Fergoson [supra].

Counsel argued that the damages claimed by the claimant run from June 25, 2008, when the claimant resigned, to 15th October, 2008 when the claimant employed another pilot to fly the aircraft the 1st defendant was employed to fly. Counsel submitted that evidence before this court is however to the effect that this very aircraft was out for service between 13th February, 2008 and November, 2008 which aircraft the 1st defendant flew last on 13th February 2008 when it was delivered to France for maintenance. Counsel submitted that the inference to be drawn from this is that within that period, the aircraft was not available for anybody to be flown. Counsel argued that it was within this period of the absence of the aircraft that the 1st defendant resigned. Counsel argued that these facts were admitted by the claimant in paragraphs 5 and 6 of the claimant’s reply to the 2nd defendant’s Statement of Defence dated 18th July, 2012 and paragraphs 10 of Further Statement on Oath of Cynthia Mohammed dated 19th July, 2012.

Counsel argued that both the 1st defendant and the witness to the claimant corroborated the status of the aircraft in under cross examinations. Counsel argued further that under cross examination, the 1st defendant testified that even before the aircraft was flown by him to France, it was not working as it had accumulated a lot of snags and faults. Counsel also argued that both the 1st defendant and the witness of the 2nd defendant were not cross-examined on the status of the aircraft by the claimant. Counsel submitted that this amounted to admission. Counsel therefore cited Dagash v. Bulma [2004] 14 NWLR [Pt. 892] 144; American Cyanamid Co. v. Vitality Pharmaceuticals Ltd. [1991] 1 NWLR [Pt. 171] 15; Amadi v. Nwosu [1992] 5 NWLR [Pt. 241] 273. Counsel argued further that evidence is before this Court that the damages claimed in an earlier discontinued suit on the same issue at the Lagos State High Court the damages claimed was a far cry from the present and that, the implication is that the present jacked up damages is phantom; and hence, the claimant has failed that it suffered any actual damage more so when it in evidence that the resignation of the 1st defendant did not actually occasion any damage to the claimant.

Counsel thereafter moved to the contention that the law is that when a contract is void no action can be maintained on its breach. Counsel cited De Francesco v. Barnum [1890) 63 LT 514 and that since the sums of money being claimed amount to penalties, they are void, not recoverable nor enforceable. Counsel finally urged the Court to find in its favour and against the claimant. This is thus, the end of the 2nd defendant’s final written address. I shall now move to the claimant’s final written address before the reply on points of law. In arguing the written address, Gbenga Bello, who

settled the address, formulated four issues as capable of resolving the dispute. The four issues are reproduced hereunder verbatim:

1. Whether the Training Bonds (Exhibits A2 & A3) constitute a valid and enforceable contract and if in the affirmative, whether the 1st Defendant by his resignation was in breach of the Training Bonds entitling the Claimant to remedy. [sic]

2. Whether the 2nd Defendant is not liable to the Claimant for the tort of interference with the subsisting contracts (between the Claimant and the 1st Defendant. [sic]

3. Whether the Claimant is not entitled to damages for breach of contract and interference with associated exemplary/aggravated damages. [sic]

4. Whether the Defendants are entitled to the reliefs sought in its counter claim.

ISSUE 1:

Whether the Training Bonds (Exhibits A2 & A3) constitute a valid and enforceable contract and if in the affirmative, whether the 1st Defendant by his resignation was in breach of the Training Bonds entitling the Claimant to remedy?

Counsel argued that the first defendant entered into two separate bonds with the cumulative period of sixty months to remain in the employment of the claimant without duress or undue influence or any other vitiating factor. Counsel submitted that because the two parties to the bonds in questions have full contractual capacities and because the bonds were backed up by consideration, they are bound. Counsel supported this submission with Bilante International Limited v. NDIC [2011] 15 NWLR [Pt. 1270] 407 at 436, paras. D F to the effect that where the terms of a written contract are clear the court should enforce them without rewriting same for the parties. Counsel also cited Best [Nig] Ltd v. Blackwood Hodge [Nig] Ltd & Ors [2011] 5 NWLR [Pt. 1239] 95 at 117, para. D and BFI Group Corporation v. B.P.E. [2012] 18 NWLR [Pt. 1332] 209 at 238, para. H, 239, para. B. to the same effect. Counsel replied to the argument of counsel to the 1st defendant. Counsel argued that the contention that the bonds were illegal by virtue of Table 2 of the Civil Aviation Regulations, which according to the learned counsel to the 1st defendant, forbids flying without type-rating, is grossly misconceived because counsel gave a narrow construction to these provisions. Counsel submitted that in arriving at the true interpretation of the relationship, the Court must construe the all the relevant documents to arrive at the true intention of the parties. Counsel cited Development Bank v. Ekanem [2009] 16 NWLR [Pt. 1168] 585 at 603, paras. A – C.

Counsel argued that by exhibit A1 – the Direct Service Contract Bond, at paragraph 6, it was provided that it shall be the responsibility of the 1st defendant to ensure the validity of his Nigerian flying licence at all times, and that hence, the cases of Alao v. ACB [supra] and W.C.C Ltd v. Batalaha [supra] were cited out of context by the learned counsel to the 1st defendant. Counsel argued that the issue on Alao’s case was that the parties entered into an agreement which directly contravene the provisions of the Exchange Control Act by trafficking in currency without the prior approval of the Minister and that the issue of the illegality was apparent from the face of the contract. Counsel argued also that the case of W.C.C v. Batalaha [supra] is more attuned to its cause than that of the 1st defendant in that in the case what happened was that the appellant company was owing the respondent company 10 months salaries and when sued by the respondent, the appellant raised the defences that the contract was unenforceable because the Central Bank regulations forbid the payment of salaries to anybody in Nigeria in foreign currency and that the respondent used a work permit issued for another company to work for it. Counsel said the Court of Appeal and Supreme Court eventually held, contrary to the High Court that, there is nothing ex facie illegal on the face of the contract and that the appellant only unconscionable intended to escape its obligations under the contract and held the contract therefore enforceable.

Counsel submitted that in Chanchangi Airlines Ltd v. AP Plc [2015] 4 NWLR [Pt. 1449] 256 at 274, paras. F – H, the Court held the law had consistently frown at the practice where one party to a contract had benefitted from the performance by the other party and when it comes to the performance of the other party’s obligation for that other party to raise illegality to escape his obligation under the contract. Counsel therefore urged this Court on the authorities of Batalha’s case [supra] and Chanchangi’s case to refuse the invitation to treat the contract as illegal raised by the 1st defendant to escape liability after enjoying the benefits of the contracts in issue. Counsel cited Oceanic Bank International [Nig] Limited v. G. Chitex Industries Ltd [2000] 6 NWLR [Pt. 661] 464 to effect that failure to perform the obligations arising from a contract is an actionable breach; and therefore, the refusal of the 1st defendant to perform the obligations devolving on him by virtue of the bonds are actionable breaches.

Counsel thereafter proceeded to reply to the issue of the contract being in restraint of trade and being unconscionable. Counsel submitted that training bonds are not in restraint of trade. Counsel argued that contracts in restraints of trade are of different species and that they are as defined by Lord Diplock in Petrofina (Great Britain) Ltd v. Martin [1966] CH.

146 as contracts which seeks to restrict the liberty of the person restrained from carrying on a trade with other persons as he chooses in future. Counsel argued that the distinguishing features of these contracts are (1), restraint from disclosing confidential information or trade secrets considered as the property of the employer, which disclosure might be injurious to the employers’ trades in favour of their rivals; (2), set up his own business in competition with that of the employer; (3), solicitation of the former employer’s customers; and (4), poaching employees of the former employers.

Counsel argued that the essence of contracts in restraints of trades “is to protect the business of the former employer from being jeopardized by information in possession of the former employee”. On this, counsel referred to Mitchel v. Reynolds [1711] 1 P.WMS; and that the restrictive covenant must pass the test of reasonability, referring to Nordenfedt v. Maxim Nordenfeldt Guns and Ammunition Company [1894] AC 535, 565. Counsel submitted further that contracts in restraint of trades are designed to affect the freedom of the employee to be employed or to trade for a number of years within a defined territory, and as such, the court is called upon to determine the reasonability of the clause in terms of territory covered and the length of by which the employee would be restrained from carrying out his trade.

Counsel argued that training bonds are different as they are not designed to protect any information and do not forbid the bond employee from trading or working or from being employed by another person. Counsel argued that a training bond is only meant to make the employer to recover the cost of training an employee or that such employee repays the cost if he decides to leave the work – see p. 11, para. 5.22 of the claimant’s final written address. Counsel submitted that training bounds are not unknown to Nigerian labour law as they have been enforced in a number of cases. Counsel cited Attorney-General of the Federation v. Awojoodu [1973] 3 UILR 4 which is said to be cited at pp. 34 – 35, Nigeria Law of Contract by Sagay. Counsel argued that the 1st defendant’s counsel has cited a number of Indian cases to show that the 36 months period of the bond was unreasonable but that contrary to his submissions, the 36 months would be sufficient for the claimant to recoup its investment on the 1st defendant’s trainings. Counsel invited the Court to invoke the doctrine of international best practices to arrive at what constitutes reasonable period of bond and argued that a Nigerian court had enforced a 5-year bond in the past. Counsel argued that the whole essence of bonds in a highly skill industry like this is to ensure that pilots trained at huge sums of monies will not be poached by another employer after taking full benefits of the largesse of the previous employer. Counsel cited the case of Edward Miles v. Jet Centre Limited T/A The Private Jet Company [Case No. 12/02 delivered on 6th November 2012 by the Isle of Man Employment Tribunal]

Counsel argued that the employment tribunal held Mr. Miles, a pilot liable to pay the costs of training by the employer on being dismissed fairly from its employee because the former employer cannot derive any benefits from the trainings it sponsored which expertise is now being used for a rival company flying the same aircraft. Counsel also cited Northern Thunderbird Air Inc. v. Van Haren [2011] BCSC 837, to the effect that a similar bond to the ones in issue was considered enforceable by the British Columbia Supreme Court, but for the fact that it was backdated which made it to lack consideration. Counsel argued that by these judgments delivered by different jurisdictions, it is a signification of international best practices in that behalf. Counsel argued that the bonds in question were dully contemplated by the parties and signed and hence invited the Court to enforce same. Counsel went further to cite a case decided by this Court: Overland Airways Limited v. Captain Afolayan [Suit No. NIC/LA/19/2011]; to the effect that, this Court had sanctified the enforceability of bonds. Counsesay that l cited Awojugbegbe light Industries Ltd. v. Chinekwe [1995] 4 NWLR [Pt. 390] 379 at 426, para. C., to the effect that “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.”

Counsel argued that the 1st defendant’s counsel misconceived the law when he argued that for a bond to be enforceable, it must not go beyond the length of the original contract of employment. Counsel argued that in view of the authorities he cited and the fact that the counsel to the 1st defendant did not cite any authority in that behalf, it follows that such a proposition is not supported by any law or practice. Counsel argued that contrary to the 1st defendant’s clause, there is no penalty clause in the agreement in issue. Counsel argued that the only money the 1st defendant was asked to pay is the cost of training. Counsel thereafter went on to the contention that one of the bonds is not signed by the 1st defendant. Counsel submitted that under cross examination, the 1st defendant agreed that his signatures are not regular and that the report of the forensic expert only confirms that the signature in the document in issue was not regular with the others; hence, the expert did not say it was not the 1st defendant that signed the document. Counsel argued that as a result the issue that the 1st defendant did not sign the document was not proved by the expert. The Court was urged to so hold.

ISSUE 2:

Whether the 2nd Defendant is not liable to the Claimant for the tort of interference with the subsisting contracts (between

the Claimant and the 1st Defendant?

Counsel argued that by employing the 1st defendant shortly after he left the claimant, the 2nd defendant thereby induced him to breach his contracts with the claimant via the tort of interference with contract. Counsel argued that the essential elements of the tort are: (1), that there is in existence a valid contract between the claimant and the 1st defendant; (2) that, the 2nd defendant procure a breach of this contract; (3) that, the 2nd defendant has actual or constructive notice of this contract; and (4) that, that the claimant suffered damages thereby. Counsel argued that since there are no vitiating features in the contracts between the parties, the contract remains valid. Counsel argued that the 2nd defendant directly brought about the breach of this contract. Counsel cited Winfield and Jolowicz on Torts [10th edition] p. 446, to the effect that the tort must be strictly proved and that, it is not tortious if the contract broken is void but that, it is tortious if the contract is valid but unenforceable. Counsel argued that the fact that the 2nd defendant had had the application of the 1st defendant since 2004 but had him employed immediately after he left the claimant proved that the 2nd defendant induced the breach of the contract and was aware of the 1st defendant’s obligations to the claimant before employing him. Counsel argued that this is why clearance was not sought from the claimant by the 2nd defendant before employing the 1st defendant. Counsel argued that the above constitute direct interference and urged the Court to so hold.

Counsel argued that, according to Harry Smith in The Law of Torts [6th Edition] at p. 338, actual or constructive knowledge is sufficient to nail the defendant in tort of interference; and that in Nigeria, Benidicta Ada Susu, in Law of Torts, at p. 286 stated that constructive knowledge is proved actually or by circumstantial evidence and that, as cited in the book, in the case of D.C. Thompson v. Deakin, common knowledge about the way business is carried on is sufficient notice to set the defendant on a trail while in Cunard Steamship Co. Ltd. v. Stacey, constructive knowledge was imputed to the defendant that he was supposed to be aware of the practice dictated by the Merchant Shipping Act of 1894. Counsel also cited the definition of constructive knowledge by the 7th Edition of the Black’s Law Dictionary at p. 878, to the effect that it is knowledge imputed that a person should have by exercising reasonable care or diligence and held partners who failed to read partnership agreements liable. Counsel also cited Clerk & Lindsell on Torts [18th Edition] at

pp. 1272 – 1273, paras. 24 – 21, to the effect deliberate conduct and recklessness on the part of the defendant is sufficient to impute knowledge and that where the claimant is in doubt about the state of mind of its prospective defendant, he can strengthen his case by giving notice the contracts which he alleges that the defendant is procuring a breach. Counsel argued that because the 2nd defendant failed to make diligent enquiries, it is deemed to have constructive knowledge of the contracts in question.

Counsel submitted that under cross examination, the witness to the 2nd defendant admitted that the 2nd defendant never bothered to make enquiries and that the 2nd defendant did not have knowledge of the bonds and that the 1st defendant stated that he never signed any bond or owed any debt before leaving the employment of the claimant. Counsel submitted that by this admission, it is clear that the 2nd defendant has constructive knowledge as it did not bother to exercise reasonable care or diligence expected of a reasonable employer.

Counsel argued further that, even if it is agreed, for the sake of argument that, the 2nd defendant had no constructive notice, there is evidence before the Court that the 2nd defendant was served with a letter intimating it with the subsisting obligations of the 1st defendant and asking it to compel the 1st defendant to honour same but that the 2nd defendant relied on the wrong opinion of its counsel to disregard the letter. Counsel argued that this amounted to approbating and reprobating at the same time. Counsel argued that therefore, the 2nd defendant had both constructive and actual knowledge of the bonds. Counsel urged the Court to so hold. Counsel thereafter moved to issue 3.

ISSUE 3:

Whether the Claimant is not entitled to damages for breach of contract and interference with associated exemplary/aggravated damages?

Counsel argued that the claimant pleaded the particulars of damage in its paragraph 17 of the Statement of Claim and that there was no attack on the evidence given in this regard by the witness to the claimant under cross examination. Counsel argued that the damages for breach of contract are as stated in Hadley v. Baxendale [1845] 9 Exch. 341 and that they are that such damages are assessed as either as fairly and reasonably arising naturally or in accordance with the course of things; and that, which are reasonably supposed to have been in the contemplation of the parties at the time of the contract as probable result of the breach. Counsel also cited Okogwu v. NNPC [1989] 4 NWLR [Pt. 115] 296 at 306 – 307, para. A; Tanko v. Kaduna Local Government [2003] 7 WRN 144 at 159, paras. 20 – 25; and

Momodu v. University of Benin [1997] 7 NWLR [Pt. 512] 325 at 337, para. A., on the same point. Counsel equally cited G.F.K. Investment Ltd v. Nigeria telecommunications Plc [2009] 15 NWLR [Pt. 1164] 344 at 384, paras. D – E, to the effect that there is no dichotomy between special damages and general damages but that damages simplicity, and that the loss in breach of contracts must not be speculative or imagined. Counsel argued that both parties have agreed that the quantum of damages is the cost of training dully arrived at, at the formation of the contract, and that as such; the parties have contemplated the damages arising therefrom. Counsel argued that the sum of N9, 075, 969.00 is the cost of the training agreed upon by the parties, and urged the Court to grant same.

Counsel argued that with regard to the tort of interference, the second cause of action in this suit, the claimant claimed the sum of N77, 200, 000.00 being special damages incurred by the claimant as a result of the interference by the 2nd defendant. Counsel cited Badmus & Anor v. Abegunde [1991] 11 NWLR [Pt. 627] 493 at 502, para. H, 503, para. A, as to how to prove special damages. Counsel also cited Marine Associates Inc. v. Kamine Marine Consultancy Ltd [2012] 18 NWLR [pt. 1333] 506 at 536, para. F on the same issue. Counsel argued that the claimant had set out the details of the special damages at paragraph 17 of the Amended Statement of Claim. Counsel argued that as both defendants did not challenge the pleadings and the evidence in support and did not ask for better particulars, they are deemed to have admitted these; notwithstanding the feeble and sweeping denial of these by the 2nd defendant in their Statement of Defence. Counsel cited Ikuomola v. Oniwaya [1990] 4 NWLR [Pt. 146] 617 at 624. Counsel argued that the claimant also claimed aggravated damages of N50, 000, 000.00, apart from the special damages. Counsel cited Marine Management Associates Inc. v. Kamine Marine Consultancy [supra] at 543, paras. F – G as to how to claim aggravated damages. Counsel submitted that this is a clear case where aggravated damages could be awarded. The Court is urged to so hold. Counsel thereafter moved to issue 4.

ISSUE 4:

Whether the Defendants are entitled to the reliefs sought in its counter claim?

Counsel argued that the claims in the counter-claim by the 1st defendants being all based on oral agreement cannot be granted because the law is that an oral agreement cannot vary the contents or terms of a written agreement. Counsel cited Udogwu & Ors v. Oki & 2 Ors. [1990] 5 NWLR [Pt. 153] 721 at 746, paras. C – D, and Mbonu v. Nwoti [1997] 7 NWLR [Pt. 206] at 737, paras. B – C. [1ST Counsel further refer the Court to Odutola & Anor. v. Papersack Nigeria Limited [2006] 18 NWLR [Pt. 1012] 470 at 491, paras. D – H. Counsel argued that in the absence of pleadings and proof outside the ipse dixit of 1st defendant, the Court is bound to refuse the reliefs contained in (a) – (d) of the counterclaim having being based on oral contract in the face of written agreement.

Counsel moved to the issue of libel and the reliefs claimed in respect thereof. Counsel argued to that to succeed in libel, it must be proved by the plaintiff that the publication is false. Counsel cited Iloabachie v. Iloabachie [supra] at 736, paras. C – E; and that where it is shown by the defendant that the publication is true, the truth is a complete defence to libel. Counsel referred the Court to p. 734, paras. C – E of Iloabachie’s case [supra] and Ishaku v. Aina [2004] 11 NWLR [Pt. 883] 146 at 169, para. H, 170, para. A. Counsel argued that since the 1st defendant left the employment of the claimant for the 2nd defendant when the bond he had with the claimant was still subsisting and the 2nd defendant neglected to request for clarification from the previous employee, then the it follows that everything said in the said letter complained against is true and that libel cannot be founded on it. Counsel cited Gately on libel & Slander [10th Edition] at 379, paras. 14.1 to the effect the defence of qualified privilege availed the claimant, even if the publication is untrue, since the claimant made the publication in a situation that warranted its being made without malice aforethought or with reckless indifference to its truth. Counsel also cited Mamman v. Salaudeen [2005] 18 NWLR [Pt. 958] 479 at 510, paras. G – H, 511, paras. E – F, 512, paras. C – E on the same point. Counsel cited Clerks and Lindsell on Torts [18th Edition] at 1179, paras. 19 – 22 to the effect that employers are privileged to give information on employees while issuing reference, without incurring liability in torts. Counsel finally urged the Court to dismiss the counter claim with substantial cost. That ends the final written address of the claimant/defendant to counterclaim. I next shall move to the reply on points of law filed by the 1st defendant.

In replying on points of law, counsel to the 1st defendant: Funmi Odude, who settled the reply address, argued that the attempts of the counsel to the claimant to restrict the scope of contracts in restraint of trade to exclude bonds cannot hold by the authority of Eso Petroleum Co. Ltd v. Harper’s Garage [Strouport] Ltd [1968] A.C. 269 at 331, which held that no exhaustive test of what constitute contracts in restraint of trade can be stated and that each case must be taken on its own peculiar circumstances with a broad and flexible reason. Counsel also cited A. Schroeder Music Publishing Co. Ltd v. Macaulay [1974] 1 W.L.R. 1308 on the same point. Counsel also argued that the case of

Attorney-General of the Federation v. Awojoodu cited by counsel to the claimant cannot be used as a test case as it applied to different industry and more so, because the certificate in Accountancy obtained by the bondman will enure for life whereas, the training received by the 1st defendant herein will only be useful for six months. Counsel argued that the training bonds in issue were signed to hold sway beyond the validity period of the licence therein obtained.

Counsel also distinguished the case of Edward Miles v. Jet Centre Limited T/A the Private Jet Company cited by counsel to the claimant that, the issue of reasonableness of the bond did not come up, or was rather not a life issue therein, but that it was the issue of whether the bond could still be enforced in view of the fact that the claimant had terminated the employment of the defendant. Counsel argued further that the issue in the extant case is not whether training bonds are enforceable but that the particular bond in issue is contrary to public policy and in restraint of trade by its unreasonable lengths after the usefulness of the licence obtained. On the basis of the above, counsel submitted that the bonds in issue are in restraint of trade and must therefore be subject to the tests of reasonability and public policy. Counsel thereafter moved to the issue of the contention by the counsel to the claimant that the 1st defendant admitted that his signature is not irregular during cross examination by arguing that the Court is bound with its record and that what is in the record of the Court is that the 1st defendant vehemently denied having irregular signatures but that his signatures on two of the documents in issue were regular while on the third, initials were only written. Counsel cited Akinpelu v. Adegbore [2008] 10 NWLR [Pt. 1096] 531 at 558, para. F; Agbareh v. Mimra [2008] 2 NWLR [Pt. 1071] 378 at 411 – 412, paras G – A; Ikoli Ventures Ltd v. S.P.D.C.N. Ltd [2008] 12 NWLR [Pt. 1101] 422 at 440, para. C; and section 122(2)(m) of the Evidence Act 2011. All these authorities are to the effect that the courts are bound by their records of proceedings. Counsel finally urged the Court to find in favour of the 1st defendant and against the claimant.

I have most painstakingly digested all the relevant processes filed in this case. I have equally perused all the documents in the case file together with all the exhibits. I therefore have a full comprehension of the facts of the case. In resolving the dispute, I shall adopt the issues formulated by the counsel to the claimant, albeit very minor amendments. I fathom that they are concise enough and take full breath of the issues arising in this case. They are as reproduced hereunder:

1. Whether the Training Bonds constitute a valid and enforceable contracts, and if in the affirmative, whether the 1st defendant by his resignation was in breach of the Training Bonds entitling the claimant to remedy?

2. Whether the 2nd defendant is not liable to the claimant for the tort of interference with the subsisting contracts (between the Claimant and the 1st defendant?

3. Whether the claimant is not entitled to damages for breach of contract and interference with associated exemplary/aggravated damages?

4. Whether the defendants are entitled to the reliefs sought in its counter claim?

ISSUE 1:

Whether the Training Bonds constitute a valid and enforceable contracts, and if in the affirmative, whether the 1st defendant by his resignation was in breach of the Training Bonds entitling the claimant to remedy?

In tackling this issue, it is necessary to first understand the natures and scopes of ‘bond’, ‘penalty’ and ‘contract in restraint of trade’. These are the legal terms upon which arguments pro and cons revolved on this issue from the opposing counsel. This will remove a lot of controversies trailing the issue. Further, I believe this is necessary in view of the central place this issue occupies in the final resolution of the case. It appears that the outcome of this issue has ramifications for the eventual outcome of the case.

A bond has been defined by the Black’s Law Dictionary [8th Edition] at p. 187 as:

A written promise to pay money or to do some act if certain circumstances occur or a certain time elapses; a promise that is defeasible upon a condition subsequent…

AThe fact that an instrument is called a ‘bond’ is not conclusive as to its character. It is necessary to disregard nomenclature and look to the substance of the bond itself. The distinguishing feature of a bond is that it is an obligation to pay a fixed sum of money, at a definite time, with a stated interest, and it makes no difference whether a bond is designated by that name or by some other, if it possesses the characteristics of a bond. There is no distinction between bond and certificates of indebtedness which conform to all characteristics of bonds.(back to top?)

What then is ‘penalty’? This word has been defined in the Black’s Law Dictionary at p. 1168 as:

Excessive stipulated damages that a contract purports to impose on a party that breaches. If the damages are excessive enough to be considered a penalty, a court will usually not enforce that particular provision of the contract. Some contracts specify that a given sum of damages is intended “as liquidated damages and not as a penalty” – but even that language is not foolproof.

“A penalty is a sum which a party…agrees to pay or forfeit in the event of a breach, but which is fixed, not as pre-estimate of probable actual damages, but as a punishment, the threat of which is designed to prevent the breach, or as security, where the sum is deposited or the covenant to pay is joined in by one or more sureties, to insure that the person injured shall collect his actual damages. Penalties…are not recoverable or retainable as such by the person in whose favor they are framed…

At p. 1169, it is further said of “penalty clause” that it is:

A contractual provision that assesses against a defaulting party an excessive monetary charge unrelated to actual harm. Penalty clauses are generally unenforceable. – Often shortened to penalty.(back to top?)

The Supreme Court in Oyeneyin & Anor. v. Akinkugbe & Anor. [2010] LPELR – 2875 [SC] at p. 25, paras. F – G adopted the Black’s Law Dictionary’s definition of penalty in toto, and went to add that:

For several years, it has been the law that such promises cannot be enforced on the ground that it is unfair and unconscionable to enforce clauses which are designed to terrorize. In the peculiar circumstances of Exh. H – where the penalty clause demands for payment of N100 per day for occupation of land where the usual rent is N100 annually is morally unjustifiable. The trial court cannot salvage an unenforceable transaction by applying the landlord and tenant law neither has the trial court the vires to formulate cases for the parties. The amount awarded under the landlord and tenant law is therefore uncalled for. Public Policy in Nigeria supports the fact that parties should be made to honour obligations entered into voluntarily between themselves to the extent that it is enforceable.”

Let me now explore what is meant by ‘contract in restraint of trade’. I think, really, the operative phrase is ‘restraint of trade’, which the phrase is adopted by the Black’s Law Dictionary [supra], at p. 1340:

A limitation on business dealings or professional or gainful occupations. An agreement between or combination of businesses intended to eliminate competition, create a monopoly, artificially raise prices, or otherwise adversely affect the free market. Restraints of trade are usually illegal, but may be declared reasonable if they are in the best interests of both the parties and the public. – Often shorten to restraint.(back to top?)

In Koumoulis v. Leventis Motors Ltd [1973] LPELR – 1710 [SC] p. 13, paras. E – G, the Supreme Court held: …depending on how the covenant is framed, an employer can lawfully prohibit the employee from setting up his own, or accepting a position with one of the employer’s competitors, so as to be likely to destroy the employer’s trade connection by a misuse of his acquaintance with the employer’s customers or clients.

The above view of the Supreme Court of Nigeria tally with the definition of restraint of trade as defined by the Black’s Law Dictionary and quoted above. It appears from the above that, contracts in restraints of trades are principally geared toward the protection of the trade secrets or other proprietary interests of an employer of labour and would only be lawful where their objects are reasonably to protect the trade secrets or the proprietary interests of the employers against employees who intend to or actually took undue advantage of these to harm the former employers’ businesses in favour of the employers’ rivals.

It is in this wise that this Court in Suit No.NICN/LA/19/2011:Overland Airways Limited v. Oladeji Afolayan & 1 Or. [delivered 2nd May, 2014] [supra] held at pp. 40 – 41 that:

I agree with the argument of counsel for the claimant that contracts in restraint of trade are distinguishable from training bonds. Learned counsel stood on strong logical firmament when he posited that the objective of a contract in restraint of trade is to protect an employee’s confidential information acquired by an ex-employee from being used against the employer. On the other hand, a training bond seeks to compel a current employee whose training has been sponsored by the employer to work for an agreed duration so that the employer could derive the benefits of its investment on the employee.(back to top?)

From the above reasoning, it appears clear that restraint of trade is distinguishable from bond. The purposes of the two are different. But it remains to see the dichotomy between ‘penalty’ and ‘bond’. One thing I intend to point out at the outset is the fact that the Black’s Law Dictionary [supra] clearly indicated in the definitions of both that, each case must be examined on its own merits and not by the nomenclatures attached. In BFI Group corporation v. BPE [2012] LPELR – 9339 [SC] at … the Supreme Court adopted the definition contained in the 4th Edition of the Halsbury’s Laws of England, thus:

“A bond is an instrument under seal, usually a deed poll, whereby one person binds himself to another for the payment of a specified sum of money either immediately or at a fixed future date.”

With regard to ‘penalty’, the Supreme Court held in Koumoulis v. Leventis Motors Ltd [1973] LPELR – 1710 [SC] at 22, paras. D – F that:

“Where a simple sum is agreed to be paid as liquidated damages on the breach of a number of stipulations of varying importance, and the damage is same in kind for every possible breach and is incapable of being precisely ascertained, the stipulated sum, provided it is a fair pre-estimate of the probable damage and not unconscionable, will be regarded as damages and not penalty.”

From the above, what appears settled from the definitions of bonds and penalties above is that whether a stipulation in a contract is a bond or penalty can only be ascertained by a close perusal of the intents of both, regardless of the nomenclature used. Both bonds and penalties are stipulations of contracts contingent upon the happening of a future event or elapsing of time. In fact, a penalty is a form of bond. What distinguishes a bond from a penalty is that in a penalty, the amount fixed for breach of contract is fixed as punishment and not as pre-estimate of the damages resultant from the breach. Thus, if the agreed sum to be paid on breach is a good pre-estimate of the damages to be suffered, then, the bond is enforceable but if not, it becomes a penalty and therefore unenforceable. Then, it follows that bonds for breach of contracts are enforceable contingent on whether or not they are penalties or not.(back to top?) Thus, this Court rightly held further in Overland Airways Limited v. Oladeji Afolayan & 1 Or. [supra], that:

Also, in line with the constitutional mandate of this court to recognise and apply international best practices, I will like to state that the practice of executing training bond is practiced in different jurisdictions…

On the strength of the authorities that I have just referred to, I have come to the irresistible conclusion that exhibits B & C are valid and enforceable as between the claimant and the 1st defendant.

While training bonds are generally enforceable, where it is proved that they are penalty bonds, they may be held unenforceable by courts of law. It follows that where the issue of a bond being a penalty is raised, the court must closely scrutinize same to ascertain the truthfulness. I wish to point out that, the issue of whether a bond amounts to a penalty was not raised in the earlier decision of this Court in Overland Airways Limited v. Oladeji [supra], cited by the counsel to the claimant and also cited by me in the course of deciding on the issue of restraint of trade and secondly on the issue of the enforceability of bonds. The issue raised therein were as to whether the bonds in issue were unconscionable by being in restraint of trade and as such enforceable; and the Court held that they were not in restraint of trade and therefore enforceable. The issue of a bond being a penalty was not raised and decided by the Court.

Having got to this stage, let me now investigate the peculiar contentions of the parties on whether the bonds in issue in the extant case are penalties or not. Counsel to the claimant has argued that the bonds in issue are not penalties but just the cost of training incurred by the claimant on the 1st defendant. Let me set out the relevant terms of the bonds in issue. Exhibit CLW1B1 – CLW1B3 at paragraph b on the first page provides thus:

The Company has agreed to bear the cost of the Employee’s attendance and participation in the program at an amount not exceeding N7, 500, 000.00 (Seven Million, Five Hundred Thousand Naira only) upon an express agreement that the said Employee, upon the completion of the programme shall thereafter return and continue and/or remain in the employment of the Company for a minimum period of SIXTY months.

At the second page of the same document [that is p. CLW1B2] at clause 5, it is provided that:

This agreement shall remain in force and effect until either the Employee serves in the Company or in any of the Company’s branches in Nigeria or abroad for sixty months or the said sum of N7, 500, 000.00 being the full cost of the training shall be paid to the company.

The second bond is exhibit CLW1D – CLWD2. At p. CLW1D, it is provided at clause b that:

The Company has agreed to bear the cost of the Employee’s attendance and participation in the programme at an amount not exceeding N1, 575, 696.00 (One Million Five Hundred and Seventy Five Thousand Nine Hundred and Sixty Nine Naira Only) upon an express agreement that the said Employee upon the completion of the programme shall thereafter return and continue and/or remain in the employment of the Company for a minimum period of TWELVE months.

At p. CLW1D1 at clause 5, it is provided that:

This Agreement shall remain in force and effect until either the Employee serves in the Company or in any of the Company’s branches in Nigeria or abroad for TWELVE months or the said sum of N1, 575, 969.00 (One Million Five Hundred and Seventy Five Thousand Nine hundred and Sixty Nine Naira Only), being the full cost of the training shall be paid to the company.

From the above, it is clear that the claimant’s stated that the two sums were monies expended on trainings of the 1st defendant. The 1st defendant in his Statement of Defence at paragraphs o. and p. state as follows:

o. Concerning the Claimant’s Training Bonds, these documents are always rushed to staff on the day of departure for training and hardly anyone reads the contents because the industry standard is that you bond to serve for the duration of the licence the training provides, which is six months.

p. The claimant’s practice as now revealed is to entrap staff into signing these documents bonding them for inordinate periods, without proper reading and no copy is provided to staff until something happens like in this case.

These allegations above were repeated in the 1st Defendant’s Witness Statement on Oath. It is clear from the above that issues were joined on the nature of the bonds in question, whether they are bogus or genuine. The 1st defendant has clearly indicated that he was challenging the authenticity of the bonds. He has indicated that the bonds, bond employees’ for period longer than the validity of licences obtained, which is six months, and that, the standard practice in the industry is for bonds to last for the six months validity of the licence obtained at the training. Then, it is expected that the claimant will lead evidence to establish what the standard practice is in the industry and what the actual cost fees for the trainings were by producing in evidence documents indicating these from the institutions of training and what the incidentals were: showing how it arrived at the cost figures being claimed. Evidence led by the claimant is just tendering the bonds in question and citing some authorities that showed that bonds are enforceable and are the standard practice in the industry.

What the claimant has not taken cognizance of, is that, by my own understanding of the 1st defendant, he is not saying bond is not the standard practice in the aviation industry but that, the duration of bonds are coterminous with the length of licences obtained in the trainings; and that, since the validity period of the licences in issue is six months, the bonds in issue, which go beyond this six months [running into 6 years together] cannot be enforced for being a penalty. In none of the cases cited is it shown that the validity periods of the licences obtained for one to compare the coefficient of the bond periods. When issues are joined in the pleadings, on a particular fact, it is trite that, it becomes incumbent on the claimant in civil cases to lead evidence, for he is the one that will lose if no evidence is led by either side – see Adeniyi & Anor. v. Ajiboye & ors [2011] LPELR – 8797, pp. 108 – 109, paras. B – A. The claimant cannot rely on the weakness of the defendant’s case. He must rise by the vitality of his own case. The validity period of the first training is said to be six months and the bond is for 60 months [5 years]. The validity period of the second training is said to be 6 months and the bond is for 12 months. All these pieces of evidence are not in contention between the parties. Since these trainings are said to be continually required every six months, then, if the employee is to be continually bond for either 5 years or 1 year as a result of these continual trainings, then, there is no way he can ever retire without being in bond.

It is in this sense that the Nigerian case of Attorney-General of the Federation v. Awojoodu [supra] cited as supporting 5 years long bond must be distinguished from the extant case. The defendant in that case had been sent for a degree course in accountancy abroad. The duration of the degree is not stated. But it is common knowledge that, a degree will not take less than 3 years at best. But here are two training courses of less than 5 months combined. Though the exact durations of the course were not stated these can be deduced from the dates the agreements were signed and the date of the next course by inference from the undisputed fact that trainings must be repeated every 6 months. The 1st defendant was employed on 2nd of May, 2007 and the first Training Programme Bond [exhibit CLW1B1 – CLW1B3 was signed on 4th May, 2007. The second one [exhibit CLW1D CLW1D2 was signed on 11th January, 2008. From 4th May, 2007 to 11th January, 2008 when he went for another course is about 8 months, leaving 2 months for the first training course if he must embark on another after six months. From January 11, 2008 to 25th June, 2008 when he resigned is about 5 months. If the first training, which was the very initial training, was not more than two months, the second, which is refresher training, cannot be more than two months also. In fact, the huge sum of money allocated to the first training will indicate that the duration is longer than the second.

It follows that for training courses of combined 5 months, the employee is made to serve 6 years in return for the supposed investments of the employer on him. The cumulative 6 years is exponentially 14 times of the duration spent at the courses while the authority relied upon as granting 5 years bond has exponential ratio of just 3 years to five years, which is not even up to twice the years spent at the course. The issue of the durations of the courses will even pale into insignificance when the benefits to be derived from the courses by the employees are considered. In the case of the person trained to have a degree in accountancy, the profession lasts him for life. In the case on hand, the employee was not trained for his qualification as a pilot. He was already a pilot, which profession will last him for life. The training he received from the claimant is just refresher courses, which will only last him for six months. Considering the above, it is very clear that the relationship is very lopsided and highly unfair and unconscionable. To confirm the whimsical basis of the bonds, the following clauses of the bonds become apposite. At clause 9 in p. CLW1B2, it is provided:

The Company may extend time for repayment of or compromise or make any arrangement in relation to the training sum payable by the Employee, but such extension, compromise or arrangement for any period of time will not release or exonerate or in any way affect the liability of the Employee or be a waiver of: i. The terms of the Bond.

ii. The right of the Company at any time afterwards to enforce each and every term and condition of the Bond.

This same clause is repeated verbatim in paragraph 10 of the second bond [exhibit CLW1D – CLW1D2. If the company may compromise the bond at one hand why at another retaining the right at any time afterwards to enforce each and every term of the condition. This clearly shows that the intention is not to recoup investment but a lever to exercise undue control over the employees with the perpetual threat of enforcing the unconscionable penalty. It must be stated that this Court has the jurisdiction to prevent any unfair labour practice. While the practice of bonds is recognised as international best practice, it is not a licence without limitation, just as with all rules of law. To hold otherwise is to grant blank cheques to the employers of labour to take away the gains achieved by the innovation of unfair labour practice as moderating force in employment and labour relations.(back to top?)

It should be noted from the authorities cited on penalty that, usually there is no dispute about the amount fixed but the dispute is about whether it is a pre-estimate of liquidated sum of the damages suffered or an excessive sum that has no other purpose than to frighten the defendant to continue with the contract or pay the penalty. Equally, it should be noted that the issue of the contractual capacities of the parties are not usually in dispute. That the parties are of the requisite contractual capacities will not deter a court to declare a contractual clause a penalty. In fact, in the authorities cited, it will appear that the parties are of full contractual capacities but the agreements were held unenforceable for reasons of being unconscionable and unfair. The rationale is that usually in contracts of employment, the employers have more bargaining powers than the employees, and can thus unduly influence them into signing contracts, though they are of good understanding, but which they will sign because of their dare need of jobs. If bonds had to be renewed in the aviation industry for a continual six monthly intervals, it follows that the employer must recoup its investment within six months; otherwise, he will be running at a loss. And if it has to recoup this by tying the employee to a bond beyond the validity period, it means, since the employee must always go for training within six months that, the employee can never offset the bonds till he dies if he remains in the service of the employer.

If a bond goes beyond the validity period of the licence to be obtained, it will then follow that the extra period to be observed in the bond is a penalty, being beyond the usefulness of the training to the employee, who must go for another training willy-nilly at the expiry of the six months to be able to function. The extra period of the bond will therefore serve no useful purpose other than to force or frighten the employee to continue to be in the service of the employer at the risk of paying the penalty in default. The implication is that, if the employee must free himself, he must pay a penalty. It logically follows that the bonds in issue in this case are penalties, and consequently void; and I so hold. They are therefore unenforceable.(back to top?) I therefor move to issues 2 and 3.

ISSUES 2 & 3:

2. Whether the 2nd Defendant is not liable to the Claimant for the tort of interference with the subsisting contracts (between the Claimant and the 1st Defendant?

3. Whether the Claimant is not entitled to damages for breach of contract and interference with associated exemplary/aggravated damages?

Issues 2 and 3 must be taken together because the continued existence of both of them is contingent of the resolution of issue 1 in the affirmative. Issue 2 is a contingent issue; being contingent on the resolution of issue 1 in the affirmative. Once issue 1 is resolved in the negative, it follows that issue 2 is also resolved in the negative. For the logical implication of resolving issue 1 in the negative is that if there is no bond to enforce, the liability of the second defendant cannot arise. The liability is contingent on the existence of a valid and enforceable contract which the 2nd defendant induced its breach. The Supreme Court has held in Sparkling Breweries Ltd & Ors. v. Union Bank of Nigeria Ltd (2001) LPELR – 3109 [SC] at 24, paras. F – G that:

In the case on hand, the Court of Appeal having held that there was no breach of contract (and this was the unlawful means relied on to ground the tort) it must necessarily follow that the alternative claim of the tort of unlawful interference with business must fail.

It follows from the foregoing that the 2nd defendant is not liable to the claimant for the tort of interference; and I so hold. Since I have come to the conclusion that the bonds in issue in the extant case are void and unenforceable, and that the 2nd defendant is not liable for the torts of interference, then it follows like day follows the night that the reliefs claimed in issue 3 as offshoots of issues 1, 2, and 3 cannot find a sit to anchor their continued existence since reliefs are contingent on resolving the principal issues in a case or in resolving the dispute in favour of the claimant. Once the main dispute is resolved against a claimant, the claimant’s prayers for reliefs must fall flat on their faces as lacking a pedestal to stand. Like Lord Denning said in Macfoy v. UAC [1961] 3 WLR 1405 PC at 1409, “You cannot put something on nothing and expect it to stay there. It will collapse”.

All in all, the case of the claimant fails and it hereby dismissed in its totality as lacking in merits. I therefore move to issue 4, which deals with the counterclaim.

ISSUE 4:

Whether the Defendants are entitled to the reliefs sought in its counter claim?

In resolving this issue, I will like to make reference to the resignation letter of the 1st defendant. I hereby reproduce the contents of the letter [exhibit CLWIE]:

Letter of Resignation

I wish to resign from my appointment as a Captain in Overland Airways with immediate effect.

My salary of the month of June can be used as payment in lieu of notice.

This is also to let you know that I consider it a privilege to have had the opportunity to learn a lot from your unique style of management. For this, I thank you immensely.

I wish you God’s guidance as you continue to captain the ships of your various businesses.

The company properties in my possession I will return subsequently.

Thank you.

Yours Sincerely.

SGN

S.J. Gamra

Whatever meanings might be read to the letter, particularly with regard to its paragraph 3, it is clear that the letter did not indicate that the Managing Director/C.E.O, to whom the letter was directed and whose oral promises the 1st defendant/counterclaimant have said gave rise to the counterclaims, is owing the counterclaimant any money. If it happened that there was any such promises, the last opportunity the counterclaimant had to press for it was in his letter of resignation which terminated all dealings with the Managing Director/CEO. If at the most opportune time the counter claimant remembered what was against his interest that he was bound to return the properties of the company with him and did promised to do that. If he also remembered to indicate that his last month salary yet unpaid should be used to offset the requirement of one month salary in lieu of notice which he was bound to give, which obligation is also against his proprietary interest, then it beats imagination to agree that the same counterclaimant would forget his advantageous proprietary interests in debts allegedly being owed to him by the company. The only reasonable explanations for this is either that the counterclaimant had waived his interest and forgo the debts owed him or that no such debt were in existence The implication is that the counterclaimant had waived his right to these promises and they cannot be revived when the claimant now brought an action in its own right against the 1st defendant. In a similar case: United Calabar Company v. Elder Dempster Lines Ltd (1972) LPELR – 3406 [SC] at 17, paras., E – G the Supreme Court held E – G Secondly, the letter…was a waiver of the condition. The principle of waiver is simply this: If one party by his conduct leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict rights when it would be inequitable for him so to do.(back to top?)

This is more so, when there are no documents to back up these oral agreements and there are no witnesses to corroborate same. It is not the law that a court must accede to all evidence given before it even if it is not challenged. If the evidence is improbable or unreasonable, bearing mind in the natural course of events, a court can rightly refuse to act on same – see Anzaku v. Gov., Nassarawa State (2005) 5 NWLR (Pt. 919) 448 at 502 paras. C – F. See also Dibiamaka & Ors. v. Osakwe & Ors. (1989) LPELR – 940 (SC) at 16, paras. D – E where the Supreme Court held that:

When evidence is improbable, it can easily be dismissed as untrue as probability has always been the surest road to the shrine of truth and justice. The balance of probability will thus reflect also the balance of truth. When this happens, it then becomes the balance of justice.

Based on my arrival at both waiver and improbability of the evidence adduced in support of the counterclaims, it follows logically that I must arrive at the only conclusion open to me thereof, which is that the aspects of the counterclaims dealing with debts failed. I move to the aspect dealing with defamation [libel]. Without wasting too much time on this, I cite Iloabachie v. loabachie [supra] pp. 10 – 11, paras. E – G, where the Supreme Court held:

Where a court is considering the defence of privilege whether qualified or not, there are some empirical factors that should be taken into consideration and these include the interest of any of the persons to whom the document was published, and the circumstances of the matter in question… Equally too, the court should consider the motive for the publication to examine whether it is actuated by purely altruistic principles or tendencies, or malicious and injurious motive.

This same view was held in Mamman v. Salaudeen [supra] at p. 512, paras. C – D, where the Supreme Court held that: If the statement is made…in the reasonable attention to a man’s own business and affairs, which gives him legitimate cause to write or speak of his neighbor, the occasion displaces the presumption of malice…and he is only answerable if malice be shown to have existed in fact. (back to top?)

In the case on hand, the claimant honestly believed there were binding bonds between it and the 1st defendant and that it could enforce same by asking the new employer to ask the new employee who was its former employee to pay the debts arising from this bond and that the second or new employer owed it the duty of inquiring from it before employing the 1st defendant. Clearly from the above, the motive for writing the letter in issue shows that no malice was intended. All that the claimant wanted was to recoup the debts it felt it was owed by the 1st defendant. This communication was not sent to the world at large but to the new employer whom the claimant felt will be able to assist it recoup its assumed debts. Therefore, the communication was qualifiedly privileged. I therefore refuse to grant the counterclaim. From the foregoing, it follows that all the heads of counterclaims must also fail; and I so hold.

All the parties to bear their respective costs.

…………………………………….

Hon. Justice, B. A. Adejumo, OFR,

MCI.Arb, GFSM, CFIAR, FCIArb, FNILS,

President,

National Industrial Court of Nigeria.