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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE OYEWUMI. O.O DATED 16TH OF JUNE, 2015 SUIT NO: NICN/LA/123/2013 BETWEEN AERO CONTRACTORS CO.OF NIG. LTD - CLAIMANT AND MR. AKINTAYO AKINWUNMI AKINGBEHIN -DEFENDANT REPRESENTION- Kolawole Oluwadare with him are Aderonke Jalade (Miss); DipoFamodunmi for the claimant Ayoku Hamzat for the defendant JUDGMENT The claimant on the 6th of March, 2013 filed a complaint against the defendant praying for the following reliefs: I. A DECLARATION that the defendant has breached the confidentiality agreement in the contract of employment between the claimant and the defendant by disclosure of the claimant’s confidential information in the defendant’s solicitors letters dated 27th December, 2012 and 14th January, 2013. II. AN ORDER OF PERPETUAL INJUNCTION restraining the defendant from disclosing the claimant’s confidential information and from further breaching the confidentiality agreement in the contract of employment between the claimant and the defendant. III. The sum of N25, 000,000.00 (Twenty-Five Million Naira) being general damages for the defendant’s acts of breach of confidentiality agreement in the contract of employment between the claimant and the defendant. IV. Interest on the sum of N25, 000,000.00 (Twenty-Five Million Naira) at an interest rate of 10% from December, 2012 to delivery of judgment in this suit and 10% from judgment until final liquidation. V. Cost of this action in the sum of N2,000,000.00 (Two Million Naira) It is the case of the claimant that it employed the defendant via a letter dated 13th August, 2003. That his appointment was confirmed vide a letter dated 20th of May, 2004 and was a Commercial Analyst in the Commercial Department of the claimant company. The claimant averred that in October 2012, it engaged the services of a consultancy firm to undertake an appraisal of its information and communication systems. That in the course of the appraisal, it was discovered that fraud was perpetrated in the sale of the airline tickets by members of staff of the claimant’s Commercial Department. Claimant averred that sequel to the discovery, it constituted an eight man panel to investigate the fraud. That on the 23rd of November, 2012 some of the members of staff appeared before the panel for investigation and one Mr Michael Adegbehingbe, the Assistant Sales Representative of the claimant testified that the fraud was being perpetrated in the Commercial Department involving the Sales Manager, Mrs. Oluwayemisi Bruce and Mr. Akintayo Akinwumi Akingbehin (the defendant). Claimant stated further that Mrs Oluwayemisi and Mr Segun Medubi also admitted to being involved in the perpetration of the fraud in the Commercial Department. Continuing claimant averred that testimonies of Mr. Michael Adegbehingbe, Mrs. Oluwayemisi Bruce and Mr Segun Medubi and the further investigation of facts and document, revealed that in 2010, the defendant, Mrs. Oluwayemisi Bruce and Mr SegunMedubi created an account for a nonexistent client known as Skyfirm Ventures Nigeria Limited from the legitimate but dormant account of Ultima Account with the claimant’s company. That the above mentioned persons, through Skyfirm Ventures Nigeria Limited, sold its tickets and made group bookings on the claimant’s flights under the Ultima Account and the monies realized were not remitted to the claimant’s account but that of the defendant, Mr. Michael Adegbehingbe, Mrs. Oluwayemisi Bruce and Mr Segun Medubi by their sales agent. Claimant averred that Mr. Michael Adegbehingbe admitted at the panel of investigation that the sales agent remits as much as the sum of N500,000.00 weekly and he delivers same to the defendant and Mrs. Oluwayemisi Bruce. Claimant continued that the fraud perpetrated has cost it a huge financial loss to the tune of N46,000,000.00. Claimant also averred that it placed defendant on indefinite suspension on the 28th of November, 2012 in furtherance of the investigations of allegations against the defendant by the Police. That on the 27th of December, 2012, the defendant’s solicitors wrote to it on behalf of the defendant with a threat to blackmail the claimant with various information about the claimant’s transactions and finances disclosed by the defendant as he came across such information while his employment subsisted with the claimant. Claimant contended that defendant breached its confidentiality agreement contained in the contract of employment between it and the defendant thus exposes it to further damages if the defendant carries out its threat. The claimant during trial testified through its HR Practitioner one Mrs Ifeoma Ogoh and tendered documents which were admitted and marked as Exhibits IO 1-IO10. The Defendant on the other hand denied certain paragraphs of the claimant's pleadings admits paragraphs and averred that he was the Chairman of the Senior Staff Union of the Claimant and as the Union Chairman, the Defendant has the responsibility of representing the lager interest of other employees of' the Claimant particularly in fighting for and defending the rights of employees in matters of staff welfare. That consequent upon the above, the Management was always on a collision course with him whenever he is uncompromising on Staff welfare issues and issues bordering on transparent management of the Claimant. That the Claimant's investigations on the alleged fraud in her Commercial Department was done without affording him a hearing, notwithstanding the alleged incriminating admissions of Michael Adegbehingbe against him, he was declared guilty, reported to the Police and suspended from work. Defendant denies that he knew about and or worked with anyone to defraud the Claimant in its Commercial Department or at all. That he does not know and is not involved in the activities of Sky firm Ventures Nigeria Limited or any company involved in any nefarious and fraudulent sale of the Claimant's tickets and bookings He further denies receiving any sum of money and or being involved in the conversion of the proceeds from the fraudulent sales of tickets and group bookings as alleged by the Claimant. That he became aware of the allegations of the Claimant on the 25thday of November, 2012 when men of the Nigeria Police invaded his residence and informed him that the Claimant, acting on the incriminating and unproved allegations of one Michael Adegbehingbe, had lodged a complaint against him and some others in the company of defrauding the Claimant to the tune of N64,000,000.00 (Sixty Four Million Naira). He was arrested and detained at the Airport Police Command on the 25th November, 2012 in clear violation of his fundamental rights under the Nigerian Constitution and the terms of his contract never afforded him hearing on the allegations against him but chose to lodge a complaint with the Police. He stated that he was released on the 27th of November, 2012 when he was released on the orders of the Airport Police Command, Commissioner of Police. That sequel to his release from police detention he was issued with a suspension letter on the 28th of November, 2012 The Defendant denies paragraphs 23, 24 25, 26, 27, 29, 30, 31 and 32 of the Statement of Claim and states the following in answer thereto: i. That as the Union Chairman in the Claimant company, the Defendant had the trust and confidence of members of staff who offer information relating to Management actions that may be inimical to staff welfare, growth and security of employment and suspicious or fraudulent transactions which could threaten the growth of the Claimant. ii. That the Defendant confronted management with such information through the Head of Human Resources, the middle link between staff and management. iii. That rather than take steps to curb the known excesses, the Claimant management decided to victimize the defendant by discrediting his impeccable career and his standing among the staff of the Claimant. iv. That upon receiving the Claimant's letter of suspension dated 26th day of November, 2012 the Defendant briefed his Counsel, the firm of Fred Agbaje to seek redress from the Claimant for victimizing him after he exposed the fraudulent and reckless transactions of the Claimant management. v. That the Defendant is not in breach of any of the terms of the Letter of Employment of 13th August, 2003 and the Aero Contractors Company of Nigeria Limited Staff Administrative Policy Handbook vi. That the disclosure of Defendant's Counsel in the letter of 27th December, 2012 and the reminder of 14th January, 2013 to the Claimant was not done in bad faith and is not a breach of the confidentiality clause between him and the Claimant and also not a threat to disclose and or continue to disclose confidential information to the public as alleged by the Claimant. vii. The Defendant states that the Police have only done the request of the Claimant in charging him to court to further victimize him for standing up for transparency and prudence. The Defendant states that he is not liable to any of the claims of the Claimant as the claims of the Claimant are spurious, frivolous, overreaching and unsustainable in law and should be dismissed with substantial costs The defendant counterclaims wherein he avers that he worked conscientiously and received accolades and promotion in recognition of his services to the Defendant to the Counter-claim which culminated in his being made the Commercial Analyst on 1st April, 2010 and confirmed effective from 1st January, 2012 by letter dated 21st February, 2012 and a salary review by letter dated 11th June, 2012.The Counter-claimant at all times material to his employment with the Defendant to the Counter-claim was a die in the wool union activist and from the position of Senior Staff Union Secretary he rose to become the Chairman of the Staff Union of the Defendant to the Counter-claim Company in February 2012 and by virtue of such privilege he was exposed to the activities of the Defendant to the Counter-claim's Management as he came across some documents which manifested management fraudulent and reckless management of the resources of the company which could negatively affect the fortunes of the Defendant to the Counter-claim and its teeming workers. That he confronted the head of the Human Resources of the Defendant to the Counter-claim, who is the middleman between the staff and management, with the facts in the said documents with a view to arresting the situation before the Defendant to the Counter-claim is completely crippled as workers were becoming apprehensive of such payments draining the purse of the Defendant to the Counter-claim unnecessarily. That they were documents which showed payments by management without due compliance with Defendant to the Counter-claim's organizational standard and ethics in financial matters they span through payments of sums of money ranging from N13M,N39.7M, N262M, N40M, N110M etc The Counter-claimant avers that the management rather than offer explanations on the above stated drain pipes resulted to vilification and personal vendetta against him and activated by malice, resulted to blackmail and victimization of the Counter-claimant which resulted to his suspension on the 28th of November, 2012 and arrest from 25th to 27th of November, 2012 on the mere unsupported and spurious allegations levied against him by one MICHAEL ADEGBEIHINGBE at a panel sitting on 23rd November, 2012. The Counter-claimant avers that he sought and briefed his solicitors Fred Agbaje Chambers to react to the letter of suspension and to confront the Defendant to the Counter-claim with the myriad of the financial misappropriation which he had earlier intimated the Head of the Human Resources and Administration with. This the solicitors did and the defendant rather than adhere to the solicitor’s demand, dismissed him on the 1st of February, 2013 in utter disregard and violation of the procedure for staff discipline in the company handbook and administrative manual. WHEREOF the Counter-claimant claims as follows: 1. A declaration that the indefinite suspension without pay dated 26th November, 2012 and the purported dismissal of the Counter-claimant by letter dated 1st February, 2013 without just cause and without necessary compliance with the procedure relating thereto is wrongful, illegal, unconstitutional and contrary to the principle and rules of natural justice and fair hearing. 2. An order on the Defendant to the Counter-claim to forthwith reinstate the Counter-claimant whose contract of employment was unilaterally repudiated without recourse to due process IN THE ALTERNATIVE The Counter-claimant claims payment of all his unpaid salary and other emoluments from November, 2012 until judgment. 3. A declaration that by virtue of the unlawful dismissal and attendant prosecution in Suit No. MIK/CP/2/2013, the Counter-claimant has been subjected to great and terrible sufferings, inconveniences, shock, emotional and psychological trauma and reduction of personal esteem in the aviation industry 4. An order on the Defendant to the Counter-claim to pay N100,000,000.00 (One Hundred Million Naira) as Special and General aggravated damages to the Counter-claimant for the great and terrible sufferings, inconveniences, shock, emotional and psychological trauma and reduction of personal esteem in the aviation industry consequent upon the acts of the Defendant to the Counterclaim. 5. Interest on the judgment sum at the rate of 10% from February, 2013 until judgment and 20% interest from judgment until the final liquidation of the judgment sum. Cost of the action in the sum of N2,000,000.00 The claimant on the 14th of June, 2013 filed a reply to the statement of defence wherein it averred that though the defendant was the chairman of Air Transport Service Senior Staff Associate of Nigeria, claimant is not aware of the contents of the Union’s constitution and thus unable to ascertain the responsibilities as these facts are within the defendant’s knowledge and that is not relevant in this case as he was also an employee of the claimant. Counsel averred that it does not require the consent of its employee to carry out appraisals in any of its department. That the claimant has not declared the defendant guilty of the offence but all personnel involved in the fraudulent activity in the commercial department of the claimant company and the investigation is due to the criminal nature of the facts uncovered. That the defendant at the material time was the commercial analyst in the commercial department of the claimant company where the fraud was said to be perpetrated from the findings of the consultancy firm engaged to appraise its information and communication system. That it was not aware whether the defendant was detained on the 27th of November, 2012. That the defendant was sent on suspension so as to prevent him from interfering with information useful for investigation. That the claimant was not presented with any information or documents through the Head of Human Resources of claimant and was not aware of same till defendant was suspended. That the steps taken by the law enforcement agency are within the purview of the constitution and not prejudiced against the defendant. On the 26th of May, 2014, claimant filed an amended defence to counter claim wherein he averred and adopts paragraph 1-15 of the Reply to the Statement of Defence as its defence to Counter-Claim in this suit and further averred that the Defendant's position as Chairman of ATSSSAN and the promotion and alleged accolades received by the Defendant/Counter Claimant in recognition of his services to the Claimant do not in any way absolve the Defendant of the allegation of fraud against him neither does it give him the liberty to breach the duty of confidentiality imposed on him by terms of his employment. That whatever fraudulent activities the Defendant refers to was not formally brought to the attention of the Claimant and or through the Claimant Human Resources Department. That the Defendant was not victimized nor blackmailed for purportedly protecting or fighting for the welfare of co workers but was found answerable to the allegation of fraud being perpetrated in the Commercial Department of the Claimant and that a panel was set up subsequently to investigate the Defendant and some other staff in the Commercial Department of the Claimant. That based on findings at the Panel of Investigation of 23rd November, 2012 and subsequent investigations, the Defendant was invited to appear before a 6-man Disciplinary Committee. The Claimant avers that an email was sent to the Defendant on 29th January, 2013 requesting the Defendant to appear before the Disciplinary Committee on 1st February, 2013. That the Defendant appeared before the Disciplinary Committee on the 1st February, 2013 where he was confronted with the allegations against him following the appraisals that led to the discovery of the Defendant's involvement in the fraud perpetrated by the Defendant and other staff all formerly in the employment of the Claimant. The Claimant avers that upon being asked to explain his involvement in the scam, the Defendant failed and refused to do so stating that the Committee had no right to make such enquiries against him. The Claimant averred that it did not declare that the Defendant was guilty but rather reported the fraudulent act of the Defendant and other employees of the Claimant who took part in the fraud to the Police who has the duty to carry out criminal investigations in respect of the complaint made by the Claimant and the said Michael Adegbehingbe has been charged along with others including Defendant/ Counter claimant for conspiracy, stealing and forgery before the Magistrate Court. Claimant stated that the Defendant was suspended in accordance with the Claimant terms of employment and the provision of its Staff Administrative Policy Handbook as regards such fraudulent act perpetrated by the Defendant and the allegation against the defendant has nothing to do with any union activities because the Claimant never interfered with the union activities of the Defendant. The Claimant avers that the Defendant caused his Counsel, the law firm of Fred Agbaje to write a Letter of threat to blackmail and embarrass the Claimant if the Claimant refuses to reinstate the Defendant as demanded. The Claimant/Defendant to the Counter Claim states that the Claim of the Counter Claimant is an afterthought, frivolous and same be dismissed with substantial cost The Defendant in reply to the amended defence to Counterclaim on the 5th of June, 2014 repeats the averments in paragraphs 14 to 29 of his Counterclaim and averred further that; It is not true that he exploited his position in the Claimant Company to defraud the Claimant and his removal was not as a result of his involvement in any purported fraud on the Claimant but rather because he refused to compromise the rights of the staff he represents as the Union chairman and for demanding strict adherence to the laid down procedure of the Claimant. That upon the notice vide an email dated 29th January, 2013 he was invited to attend a disciplinary committee on the 1st of February, 2013 and upon his appearance at the panel, he was asked to sign for his letter of dismissal dated that day without having been given the opportunity of any hearing as envisaged by the e-mail invitation. That he refused to sign for the letter as that was not the purpose for which he was invited to the Claimant company. That he left the Claimant company almost immediately and no minute could have been taken as there was no meeting held. That the purported minute or report referred to in paragraph 10 of the defense to counterclaim is a mere fabrication and does not represent the truth of what transpired at the Claimant company on the 1st day of February, 2013.That it is not true that he refused to answer any queries as none was ever asked of him on the said 1st February, 2013. Defendant averred that he was suspended and purportedly dismissed by the defendant to the counterclaim without affording him fair hearing and causing his arrest without investigating the spurious allegation made against him by a co-employee. The Defendant averred that he instructed his counsel to a. Write to the Claimant requesting it to afford him fair hearing and not to act outside the terms of his employment. b. . That it is not true that his counsel threatened to blackmail the Claimant. c. That the disclosure of the information allegedly communicated to the Claimant by his counsel cannot by any stretch of imagination amount to disclosure to a third party. d. That it is not true that he is in breach of his contract of employment The Defendant states that the amended defence to the counterclaim is unmeritorious and urged the court to dismiss same with substantial cost. Parties at the close of trial filed their respective Final Written Address. The defendant on the 18th of November, 2014 filed his Written Address wherein he framed three issues for the court’s determination; a. "Whether upon the facts and evidence adduced in support, this honourable court can sustain the claim that the Defendant is in breach of the confidentiality agreement clause in his contract of employment". b. "Whether given the facts and evidence adduced at the trial hereof, the suspension and dismissal of the Defendant by the Claimant is in compliance with the terms of his contract of employment" c. "Whether the Defendant is entitled to succeed in his claim for special and general damages against the Claimant for the illegal, unlawful and unconstitutional manner he was suspended and dismissed without recourse to the terms of his contract of employment". On issue one, counsel contended that the Claimant's Averments on this issue are those in paragraphs 23, 24, 25, 26, 27,29 and 30 of the Statement of Claim and the evidence in chief canvassed in support of same are contained in paragraphs 25, 26, 27, 28, 29, 31 and 32 of Exhibit CW 3, being the written statement on oath dated 6th March, 2013. The averments in paragraphs 13 and 14 of the reply to statement of defense and paragraphs 29,30 and 31 of the defense to counter-claim and the evidence in chief canvassed in support thereof are contained in paragraphs 15, 16, 17, 31, 32 and 33 of Exhibit I09, being the written statement on oath of 14th June, 2013. Counsel also contended that Clause 2.22.1 of the Administrative Manual of the Claimant which makes provision touching the issue states: "Security of Company information During the course of their employment, any member of the Company's staff may come to have knowledge of matters of commercial confidence, public knowledge of which may harm the Company's business. All employees are required to treat internal Aero contractors matters with strictest of confidence and not disclose such information to any other person". Counsel submitted that, it is trite law that he who alleges must prove in civil matters, thus onus of prove lies on the party calling on the court to pronounce positively on his allegation. He contended that there are no facts placed before this Court to positively support the allegation that the Defendant breached the terms of his employment regarding the confidentiality clause in clause 2.22.1 of Exhibit 103 and that the law is further well settled that averments on pleadings do not take the place of evidence. In other words, whatever facts are pleaded, they must be established by evidence in support thereof. He cited the case of SULE EYIGBE V MUSA IYAJI [2013] ALL FWLR (PT 703) 1901 AT 1914 PARAS G-H. He stated that the claimant did not support the pleadings on the allegation of the disclosure of confidentiality against the Defendant and so the claim must fail. This is more so, when the said information was made to the Claimant and no one else Counsel contended further that the provision of clause 2.22.1 of the Administrative Manual of the claimant is particularly directed at matters of strict commercial confidence disclosed to a third party and which is economically detrimental to the employer. Counsel submitted that defendant based on the spurious allegation made against him by one Michael Adegbeingbe, a co-staff in the Claimant company, he was arrested by the Nigeria Police on the 25th of November, 2012 and kept in Police custody till the 27th November, 2012 when he was released on bail and on attempting to resume work on the 28th November, 2012 he was confronted with a suspension letter dated 26th November, 2012. victimization of his person merely because he was fighting for the rights of the staff. That the Defendant as the Chairman of the Senior Staff Association was all the while engaged in an ongoing confrontation with management touching on financial mismanagement which was threatening to cripple the Claimant. He had raised the issue severally with Management, particularly, the head of Human Resources Department. He was conscious that if for no other reason than his confronting the management they would use any opportunity to get rid of him at all cost. He submitted that the Defendant in order to protect himself caused his Solicitors to write the Claimant with a view to seeking enforcement of his rights and to prevent further of his members and striving to prevent injustice in the work place. Counsel citing the case of GARTSIDE Vs. OUTRAM (1856) 26 L.J Ch. 113stated that one other fundamental exception which exists in law as far as confidential information is concerned is when the said confidential information has elements of crime in it or entails any form of criminal act prohibited by law. This is mainly based on the position of a party to crime as both an accessory before the fact and after the fact are regarded as parties to the crime. He cited Chapter 2 of the Criminal Code. Counsel continuing submitted that the English Court in T. MARSHALL (EXPORT) LTD V. GUINLE NO.1 (1978) 3 ALL ER 193 explains four situations which would qualify a piece of information to be a confidential one, a disclosure of which would amount to a breach of the clause. The situations are: 1. Information the release of which the owner believes would be injurious to him or an advantage to his rivals or others. 2. It must be information which the owners believes to be confidential or secret. 3. A reasonability test on the owner of the information on the two reasons listed above. 4. The information must be adjudged in the light of the usage and practice of the particular industry concerned. He posited that where a piece of information falls within the above listed situations, and the said information is released in breach of the confidentiality clause either expressly stated in the contract of employment or impliedly by the nature of the trade, an aggrieved party has a claim for damages against the other party in breach. With regards to the status of an employee, the employee may also be exposed to risks of losing his job as the breach runs contrary to the contract of employment. Claimant submitted that, the situation in this suit does not fall under any of the above headings as the purported disclosure was made to the Defendant's Solicitors and the law regulating such disclosure is one of the exceptions on the duty of disclosure of confidence. Thus the said disclosure having been made by the Solicitor to the Claimant only, as admitted by the Claimant's witness is a disclosure made on a qualified and privileged occasion. He cited the case of M. T. MAMMAN VS. A. A. SALAUDEEN, [2006] All FWLR (Part 298) 1169 at 1189, paras.E-G, and 1191, paras.D-E; ALHAJI AHMADU ABUBAKAR DAURA VS.ALHAJI ABDULKADIR DANHAUWA [2011] All FWLR (PART 558) at 991. He further submitted that the position above is strengthened by the provisions of Rule 19 of the Rules of Professional Conduct for Legal Practitioners 2007 which provides: (1) Except as provided under sub-rule (3) of this rule, all oral or written communications made by a client to his lawyer in the normal course of professional employment are privileged." Counsel urged the court to so hold and to dismiss the claims of the Claimant and award substantial cost in favour of the Defendant. Counsel arguing issues two and three together stated that his suspension from the employment of the claimant arose over some unverified and spurious allegation made against the Defendant by a co-staff, one Michael Adegbeingbe, at the Claimant investigative panel sitting of 23rd November,2012 and the purported disclosure of confidentiality only occurred thereafter. The defendant submitted that his suspension was an act of the claimant to punish him for standing up to management in the defence of the Claimant's staff in his position as the Senior Staff Union Chairman. He also claimed that claimant’s suspension and eventual dismissal were done without following the procedure for doing so as contained in the Admin Policy Manual and Employee handbook which spelt out procedure for staff discipline and which terms must be complied with according to his terms of employment with the Claimant. That it is trite law that in a master and servant relationship, an employee who alleges wrongful dismissal must bring before the Honourable Court the procedure required for his dismissal which was violated. It is also trite law that the said employee has the burden to place before the Court his letter of employment stating the procedure that the employer must follow for his dismissal to be lawful. He cited the case of SIMON ANSAMBE VS. BANK OF THE NORTH LTD. [2004] All FWLR (Part 221) Pg. 1427; PATRICK ZIIDEH VS. RIVERS STATE CIVIL SERVICE COMMISSION [2007] All FWLR (Part 354) Pg. 243 at 258 . Counsel submitted that the Claimant was in clear violation of the right of the Defendant to fair hearing. He cited the Court of Appeal in SHAIDU NDA MALIKI VS. MICHAEL IMODU INSTITUTE FOR LABOUR STUDIES [2000] All FWLR (Part 491) 979 at 1019, paras. A-D where NWEZE JCA stated what the right of fair hearing encompasses thus: "In order to be fair, hearing or opportunity to be heard in a judicial inquiry must encompass a party's right: a. To be present all through the proceedings, to hear all evidence against him or her. b. To cross-examine or otherwise confront or contradict all the witnesses that testified against him. c. To have read before him, all the documents tendered in evidence at the hearing. d. To have disclosed to him the nature of all relevant material evidence, including documentary evidence, prejudicial to him,except in recognized exceptions. e. To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence. f. To give evidence by himself, call witnesses if he likes and make oral submissions either personally or through counsel of his choice." He also cited in support the case of P. C. MIKE EZE VS. SPRING BANK PLC. [2012] All FWLR (Part 609) 1076 at 1089, paras. H-B. Counsel stated that the Defendant was indeed invited to attend an alleged Disciplinary Panel on the 1st February, 2013 and though he went to attend the Disciplinary Panel sitting on the 1st of February, 2013 no committee sat as what transpired was an act of the claimant attempting to issue the defendant a letter of dismissal dated that day which defendant refused to acknowledge. Thus defendant was not queried and or afforded any form of hearing before he was suspended and or dismissed were uncontroverted and or tested during cross examination. Counsel urged the court to deem the fact admitted and uncontroverted as claimant failed to afford the defendant fair hearing in this matter, the suspension and subsequent dismissal of the defendant was not in conformity with the terms of his contract of employment and therefore wrongful. Counsel argued that claimant failed to comply with the terms of the contract of the Defendant's employment in the procedure it followed in his suspension and dismissal as set out in the provisions in pages 32 to 36 of the Employee Handbook dealing with staff discipline, thus breaching the terms of the contract of employment it entered with the Defendant. It is trite law that when the act of an employer is in breach of the terms of employment, the act is wrongful and or illegal and the remedy available to the wronged party is in damages. Counsel with regards to the quantum of damages payable submitted that the normal measure of damages recoverable by an employee whose contract has been wrongly terminated is the amount he would have earned under the contract for the period until the employer could have lawfully terminated it, less any amount he could reasonably be expected to earn in other employment. He cited KABELMETAL NIGERIA LIMITED VS. GABRIEL ATIVIE [2001] FWLR (Part 66) 662 at 680, paras.C-E; MR. KUNLE OSISANYA VS. AFRIBANK NIGERIA PLC. [2007] All FWLR (Part 360) 1480; CENTRAL BANK OF NIGERIA &ANOR. VS. AGNES M. IGWILLO [2007] All FWLR (Part 379) 1385. He also cited the case of MOBIL PRODUCING NIG. UNLIMITED &ANOR. UDO TOM UDO [2009] All FWL (Part 482) 1177 at 1213, paras. B-E where OMOKRI, JCA in considering quantum of damages recoverable by an aggrieved employee said: "The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice. If the wrongful termination is as a result of the former, the quantum of damages recoverable may be the employee's salary for the period of the required notice. But if it is due to the latter, then such a determination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damage far beyond his salary for the period of the requisite notice." Counsel urged the court to hold that the Defendant is entitled to damages and the Claimant should pay all the arrears of salary and other entitlements due to the Defendant from the 25th November, 2012 until judgment is delivered and to dismiss the Claimant's claim in its entirety with substantial cost. The claimant on the 26th of February, 2015 filed its written address wherein he framed two issues for the court’s determination; i. Whether in view of the Defendant's term of his contract of employment the Claimant is entitled to the reliefs sought in this suit ii. Whether the Defendant's dismissal from the Claimant's Company was wrongful Counsel on issue one submitted that one of the salient principles in master servant relationship is that of privity of contract and even more important is the issue of confidentiality between the employer and the employee. that failure to observe confidentiality in respect of such information amounts to breach of contract. That at the inception of the contractual relationship between the Defendant and the Claimant Company, the Defendant was handed a handbook and a Company manual which regulates the activities of the Defendant with the Claimant. More so, part of the paramount conditions of work which the Defendant agreed to adhere to is that of the contract of confidentiality. The Defendant is well aware that he is under an obligation to be discreet with official information regarding operations of the Company because he undertook to do same when he was employed by the Claimant. It follows therefore to breach of the terms of his employment. Counsel referring the court to the provision of the Claimant's handbook, specifically Paragraph 2.22 of the Administrative Policy Handbook submitted thus that the Defendant has no right to disclose confidential information of the Claimant to a third party. Counsel contended that what caused the institution of this suit were the letters of threat written by the Defendant's solicitors dated 27th December, 2012 and 14th January, 2013 respectively. That the only inference derivable from the letters are that they are intended to tarnish the image of the Claimant in the aviation industry, hence making it inevitable for the Claimant to seek an order of the Honourable Court preventing the Defendant from publishing damaging information about the Claimant. That the case of T MARSHALL (EXPORT) LTD V GUINLE NO. 1 [1978] 3 ALL ER 193 cited by the defendant, claimant is entitled to damages considering the effect of the letters (Exhibits IO6 and IO7) that emanated from the Defendant's Solicitors as a result of the information revealed to the Solicitor by the Defendant who is a third party to the contract of employment, or the threat of such revelation as same if revealed to the public would damage the business of the Claimant and may cause irreparable damage to the Claimant. . Counsel posited that the following were some of the information about the financial status of the Claimant that was revealed to a third party by the Defendant, in breach of the contract between the Claimant and the Defendant: a. Payment of N13,000,000.00 (Thirteen Million Naira) cash via voucher dated 27th September, 2012 which was claimed by the Defendant to have been collected by Director of Finance in person for delivery to certain beneficiaries. b. Cash collection of N39,790,000.00 (Thirty Nine Million Seven Hundred and Ninety Thousand Six Hundred Naira) via a voucher dated 13th October, 2012 claimed to have been used by the Director of Finance to settle a certain Bayo for negotiation with AMCON. c. Cash payment of the sum ofN40,000,000.00 (Forty Million Naira) via voucher dated 28th October, 2012 which the Defendant claimed by collected by the Human Resource person used for ITF savings. d. Various cash totaling N110,000,000.00 (One Hundred and Ten Million Naira) claimed by the Defendant to have been used to settle certain to write off the debts of the Claimant. e. Payment of N262,500,000.00 (Two Hundred and Sixty-Two Million Five Hundred Thousand Naira) claimed by the Defendant to have also been used to settle certain persons to write off the Claimant's debts. Counsel submitted that the Defendant admitted in paragraph 14(vi) of his written evidence on oath dated 22nd April, 2013 that he disclosed confidential information about the Claimant to a third party when he said thus: "That my counsel's disclosure in the letter dated 27th December, 2012 and the reminder on 14thJanuary, 2013 to the Claimant was not done in bad faith," It is well settled that facts admitted need no further proof. He cited the case of K.S.M.H V. M.I.E.E [2012] 3 NWLR (Part 1287) 258 at 281 Para. B¬D. He also submitted that the Defendant employed the letters dated 27thDecember, 2012 and 14th January, 2013 as tools to blackmail the Claimant to reinstate him after the termination of his employment. Counsel urged the court to hold that the defendant has breached his terms of the contract of employment with the claimant. Counsel in response to defendant’s submission that he was victimized stated that same claim was not pleaded and substantiated before this Court hence, he has failed to prove that the Claimant victimized him while in its employment. That Defendant's claim that the Claimant has not been able to prove the threats (in the letters dated 27th December, 2012 and 14th January, 2013), counsel submitted that the Claimant need not wait for the Defendant to publish the information in his possession hence the institution of this suit to prevent the Defendant from further damaging the image of the Claimant and the case before the court depicts no personal vendetta against the Defendant most importantly, the Defendant being a union representative in the employment of the Claimant had nothing to do with his involvement in fraud that led to his suspension and eventual dismissal. He also stated that the Defendant was not the only staff of the Claimant that was dismissed by the Claimant. The Defendant and other staff of the Claimant that were involved in the fraud that led to their suspension and eventual dismissal have been investigated by the police and have been charged to court and are being prosecuted at the Lagos State Magistrates' Court in Charge No. MIK/BG/2/2013, as evidenced by Exhibit IO10. To the claimant, the continued stay of the Defendant in the Claimant's employment has become inimical to the interest of the Claimant as the Defendant cannot be trusted to protect the interest of the Claimant. Counsel urged the court to so hold. On issue two, counsel posited that Defendant's Counter-claim in this suit is frivolous and discloses no reasonable cause of action against the Claimant/Defendant to counter¬claim. The Counter-claim raises no substantial issues other than the fact that he was a union leader while in the employment of the Claimant and he was ( allegedly) unlawfully dismissed for this reason. Counsel submitted that it is trite that a civil suit is determined by the Honorable Court on balance of probabilities and preponderance of evidence as adduced by parties in the suit. The basic principle of law is that he who asserts must prove. It is the law that the burden is on the Claimant to prove that he is entitled to the relief(s) sought from the Court. See Section 131 of the Evidence Act 2011. He cited the case of AREMU V. CHUKWU [2012] 3 NWLR (PART 1288) PAGE 587 AT 613 - 614 PARAS. H -A. Counsel stated that the Defendant/Counter-claimant has not only failed to show that he has a cause of action in unlawful dismissal against the Claimant/Defendant to counter-claim but has also failed to prove his case to have himself entitled to any relief(s) in the eye of the law. He cited the case of OKOMU OIL PALM CO. LTD. V. ISERHIENRHEIN [2001] 6 NWLR (PART 710) PAGE 660 AT 673 PARAS. G - H, 673 - 674 PARAS. H - B, the Supreme Court per Uwaifo JSC stated thus: "When an employee complains that his employment has been wrongfully terminated, he has the onus: a) To place before the court the terms of the contract of employment; and b) (b) To prove in what manner the said terms were breached by the employer. It is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts ". Thus, the Defendant/Counter-claimant has the burden to prove that he was unlawfully suspended and dismissed by the Defendant and that he is entitled to an order of reinstatement and the sum of Nl00,000,000.00 amongst all other monetary reliefs claimed by the Defendant/Counter-claimant. Counsel submitted that the Defendant/Counter-claimant's case as made out in his Counter Claim dated 2nd April, 2012 is an attempt by the Defendant to distract the Court from the real issues for determination before this Court which is that the Defendant/Counter-claimant breached his contract of confidentiality with the Claimant/Defendant to counter-claim. He posited that a contract of employment is like any other commercial contract, thus in determining whether there has been a lawful termination of the contract of employment, one has to look into the contract from which the employment relationship emanates. That in the case of the claimant and defendant, the contract of employment between the Claimant and the Defendant is governed by the Letter of employment dated 24th August, 2003, Letter of confirmation dated 25th May, 2004, Staff Handbook and Administrative Policy Manual (Exhibits 101 - 104) Counsel also stated that the terms of employment between the Claimant and the Defendant requires that the Defendant afford the Claimant an opportunity to explain his actions. The defendant appeared before the panel of investigation on lst February, 2013. The Report of the Panel (including the proceedings of the Panel) is before the Court as Exhibit IG1. This is without prejudice to the fact that the offence of fraudulent practices and stealing are offences that attracts dismissal in accordance with Page 35 of the Employee Staff Handbook (Exhibit 104). In addition, the Administrative Policies and Procedure Manual (Exhibit 103) provides for suspension and dismissal for serious offences. Section 4.4.10f the Administrative Policies and Procedure Manual (Exhibit 103) provides that serious offences (including stealing and fraud) will result in suspension without pay pending investigation while Section 4.6.1 provides for dismissal of such an employee upon successful investigation into the alleged serious offence. Thus, the Counter-claimant was invited and he appeared before the panel of investigation on lst February, 2013. He was given an opportunity to state his defence. Thereafter, the decision and recommendation of the Panel of investigation as contained in the Disciplinary Panel of investigation Report was that the counter claimant be dismissed. He cited the Supreme Court case of NWOBOSI V. A.C.B. LTD [1995] 6 NWLR (PART 404) PAGE 658 AT 686 PARA. D that; "it is an accepted general legal principle that an employer may summarily dismiss an employee without notice and without wages if the employee is guilty of gross misconduct" Counsel urged the court to view the dismissal of the Counter¬claimant fairness and hold in favour of the Defendant to counter-claim that the dismissal of the Claimant was valid in line with the terms of employment of the Claimant. Counsel stated that the Counter-claimant has failed to adduce evidence in support of his claim for damages and other monetary claims and it is the law that the pleadings of a party do not necessarily constitute evidence. Accordingly, any averment of fact in a pleading that is not supported by evidence is deemed abandoned and must be discountenanced. He cited the case of ODUWOLE V. PROFESSOR TAM DAVID WEST [2010] 10 NWLR (PART 1203) SC AT 624, PARA D _ F. Thus, the Counter-claimant is not entitled to the sum of N100,000,000:00 being claimed as special and general damages in this suit. This is more so in view of the fact that the Counter-claimant did not lead any evidence in proof of each of the alleged head of damages. The law is well settled that a party claiming damages must establish his entitlement to the type of damages claimed by credible evidence of such character as would suggest that he is indeed entitled to award of damages. Hecited the case of IBEANU V. OGBEIDE [1998] 12 NWLR (PART 576) PAGE LAT 12 PARA C-D. Counsel posited that the Counter-claimant's claim for reinstatement and (in the alternative) payment of unpaid salary and other emoluments from November, 2012 until judgment, submitted that an employee cannot at his own option keep alive a contract of employment which has been terminated by the employer due to an employee's disregard for the terms of employment. He cited the case of JUMBO V P.E.F.M.B [2005] 14 NWLR (Part 945) page 465. Counsel went on by stating that it is worthy of note that the Counter-claimant was not the only employee that was alleged to have committed fraud in the Defendant to counter¬claimant's employment. As a matter of fact, upon investigation he was mentioned as a participant in the fraud by his cohorts and thus was suspended alongside his, colleagues who were involved in the fraudulent activities in the Commercial Department of the Company to enable the Company fully and impartially investigate the involvement of the Counter-claimant and some other staff of the Company. This was done in line with the Company's Administrative Policy Manual. Furthermore claimant counsel averred that it is the position of the law that where a man was availed with the privilege of being heard but he fails to state his case or defend himself, he is not justified to say that he was not given fair hearing. He cited the case of DR. E.O. IMASUEN V. UNIVERSITY OF BENIN [2010] 3 NWLR (PART 1182) PAGE 591 AT 595; the Court of Appeal held thus: "Fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light and fact and circumstances of the case. Therefore, a party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere conglomeration of conducts which are merely cosmetics" Counsel urged the hold that Claimant is therefore entitled to the reliefs claimed in this suit. Conversely, the Counter-claimant has failed to establish that his employment with the Defendant was unlawfully terminated and he is therefore not entitled to the reliefs claimed in this suit, including reliefs of reinstatement and award damages. The defendant on the 13th of March, 2015 filed a reply on points of law wherein he responded to the submission of the claimant in his final address. On issue one, counsel posited that the position of the Claimant's Counsel in the Final Written Address that the Defendant admitted disclosing information to a third party in paragraph 14(iv) of his written evidence on oath of 22nd April, 2013 is mischievous as the said averments and same cannot be construed as an admission. That with regards to the relationship between a counsel and client. The courts have severally held that communication between counsel and client is privileged and that the counsel acting in the place of the client cannot be taken as a third party. See the Supreme Court in M. T. MAMMAN VS. A. A. SALAUDEEN (SUPRA). Counsel submitted that the information captured in the Administrative Policy Manual disclosure of which is sought to be protected does not include such disclosures as made in the Exhibits IO6 and IO7. That the operative word in clause 2.22.1 is that the information must be 'knowledge of matters of commercial confidence’ and the issues raised in the said Exhibits are not of commercial interest but rather administrative and financial recklessness. On issue two, counsel argued that the Counterclaim in this suit disclosed reasonable cause of action against the Claimant. He cited the case of SAMUEL OSIGWE VS. PSPLS MANAGEMENT CONSORTIUM LTD. & 13 ORS. [2009] All FWLR (PT 470) 607 at 623 per MUSDAPHER JSC held that: “It is settled law that there must be a cause of action before an intending litigant can initiate any legitimate proceedings. A suit is aimed at vindicating some legal right or claim and such legal right can only arise when certain material facts arise". In conclusion, counsel submitted that the counterclaimant has placed before the court all that is required of him for the purpose of having this court come to a favourable decision irrespective of the weakness or strength of the claimant's case. He urged the court to grant the reliefs of the counterclaimant and dismiss with exemplary cost the claims of the claimant in this suit. I have considered the processes filed in this suit by the claimant and the defence to same by the defendant, including his counter claim, I have equally heard the witnesses in this suit and have read the arguments contained in the final written addresses and case law authorities cited by both parties, it is in my humble view that the issue for the just determination of this suit are thus- I. Whether or not the defendant breached the confidentiality agreement in the contract of employment between the claimant and the defendant by disclosure of the claimant’s confidential information in the defendant’s solicitor's letters dated 27th December, 2012 and 14th January, 2013. II. Whether or not the dismissal of the defendant by the claimant is wrongful. It is the claimant's contention that the defendant/counterclaimant hereafter called simply the 'defendant' breached his contract of agreement by disclosing confidential information to his solicitor. whilst the defendant on the other hand admitted giving certain financial information to his lawyer about the claimant, according to him he did so in the interest and welfare of the claimant's staff and not in bad faith. Confidentiality clause according to the Black's Law Dictionary 9th Edition @ P. 339, means Secrecy; the state of having the dissemination of certain information restricted; The relation between Lawyer and client or guardian and ward. Whilst confidentiality clause according to the same dictionary means, A clause prohibiting the parties to an agreement from disclosing to non parties the terms of the agreement and often anything related to the formation of the agreement''. It is also called nondisclosure clause. Having considered the meaning of confidentiality as well as what it portends in an agreement between two parties, the stage is now set for the consideration of whether or not the disclosure of the financial state of the claimant by the defendant to his lawyer amounts to breach of nondisclosure clause of the terms of the defendant's contract. Before this Court are these documents which both parties agreed constitute the terms of their contract as the defendant's letter of employment, aero Admin Policy Manual, Aero Employee Handbook Senior Staff. It is not also in dispute that the defendant was an employee of the claimant. That at the inception of the contractual relationship between the Defendant and the Claimant Company, the Defendant was handed a handbook and a Company manual which regulates the activities of the Defendant with the Claimant. More so, part of the paramount conditions of work which the Defendant agreed to adhere to is that of the contract of confidentiality as contained both in his letter of employment and Administrative Manual. This contract is sacrosanct and binding on both parties to same. The Defendant is well aware that he is under an obligation to be discreet with official information regarding operations of the Company because he undertook to do same when he was employed by the claimant. It follows therefore that to breach the terms of his employment, the employee must be ready to bear the consequences in damages. Counsel referring the court to the provision of the claimant's terms of contract, specifically Paragraph 2.22 of the Administrative Policy Handbook submitted thus that the defendant has no right to disclose confidential information of the claimant to a third party. It is the defendant's defence on the other hand that the Defendant as the Chairman of the Senior Staff Association was all the while engaged in an ongoing confrontation with management touching on financial mismanagement which was threatening to cripple the Claimant. He had raised the issue severally with Management, particularly, the head of Human Resources Department. He was conscious that if for no other reason than his confronting the management they would use any opportunity to get rid of him at all cost. He submitted that the Defendant in order to protect himself caused his Solicitors to write the Claimant with a view to seeking enforcement of his rights and to prevent injustice in the work place. There are contentions and counter contentions, the best area to seek an answer to the question posed earlier is the terms of contract which was allegedly breached by the defendant and i.e. clause 2.22 of the Administrative Policy Manual of the claimant. Specifically clause 2.22.1 titled 'CONFIDENTIALITY AND SECURITY, subtitled, Security of Company information. '' During the course of their employment, any member of the company's staff may come to have knowledge of matters of commercial confidence, public knowledge of which may harm the company's business. All employees are required to treat internal Aero Contractors matters with the strictest of confidence and not disclose such information to any other person''. The above captured clause is the alleged offensive clause which the defendant breached by releasing the claimant's confidential financial status to his lawyer, who in turn used it to threaten, blackmail and arm twist the claimant. The law is long established that parties are bound by the terms of their agreement and non of the parties shall be allowed to neglect or refuse to adhere to the terms laid down in the contract. Differently put, the rights and obligations of the employer and employee, as agreed by them expressly or impliedly are binding on them. Exhibit IO3 regulates the rights and responsibilities inter se of both parties and binding on them. It is axiomatic that he who asserts must prove. The claimant in prove of its claim tendered the contracts of employment binding on both parties as enumerated above. The main gravamen of this issue now is, did the defendant breach the condition of service as regards confidentiality? I have given a thorough consideration of the meaning of the word 'confidentiality clause' as stated in the Black's law dictionary supra, which meaning is given as a clause prohibiting the parties to an agreement from disclosing to non parties the terms of the agreement and often anything related to the formation of the agreement, it also includes ; the state of having the dissemination of certain information restricted; The relation between Lawyer and client. It is interesting to note that the defendant admitted to the dissemination of financial information to his lawyer, his defence however, was that he did that in the interest of his colleagues as a union leader and also to get the claimant to reinstate him back to work. The law which has gained notoriety is that facts admitted need no further prove. The defendant has admitted to running afoul of the contract binding on him. The question requiring an answer is could his defence be cogent enough to contradict the binding terms of contract of service of both parties? Vis a vis the claimant's contention that the continued stay of the Defendant in the Claimant's employment has become inimical to the interest of the Claimant as the Defendant cannot be trusted to protect the interest of the Claimant. It is important now, to consider the alleged offending letter written by the defendant's counsel, FRED AGBAJE & CO. exhibit AAA9 The particulars of the financial disclosure are as highlighted hereunder-- a. Payment of N13,000,000.00 (Thirteen Million Naira) cash via voucher dated 27th September, 2012 which was claimed by the Defendant to have been collected by Director of Finance in person for delivery to certain beneficiaries. b. Cash collection of N39,790,000.00 (Thirty Nine Million Seven Hundred and Ninety Thousand Six Hundred Naira) via a voucher dated 13th October, 2012 claimed to have been used by the Director of Finance to settle a certain Bayo for negotiation with AMCON. c. Cash payment of the sum ofN40,000,000.00 (Forty Million Naira) via voucher dated 28th October, 2012 which the Defendant claimed by collected by the Human Resource person used for ITF savings. d. Various cash totaling N110,000,000.00 (One Hundred and Ten Million Naira) claimed by the Defendant to have been used to settle certain to write off the debts of the Claimant. e. Payment of N262,500,000.00 (Two Hundred and Sixty-Two Million Five Hundred Thousand Naira) claimed by the Defendant to have also been used to settle certain persons to write off the Claimant's debts. Defendant counsel wrote in the same letter thus-- ''We are duly informed by our client that he is privy to information concerning some shady deals involving your management namely...'' Counsel continued thus-- '' We honestly believe that based on this information in our client's disposal, the requisite agencies such as AMCON, EFCC,/ICPC, NCAA, CBN, the Minister of Aviation, the Ministry of Aviation, the Police and the Ministry of Labour 7 Productivity would be interested in whereabout of these cash payment by your management'' Would it be correct to hold as the defendant would want the court to so do that all the above was done by the defendant in good faith considering the highlighted paragraphs above? It goes without saying that the defendant revealed the above information which according to him was obtained by virtue of his position as a union leader in the claimant employ not to protect the interest of his colleagues as he alleged but for his own personal benefit, in other words to use it as a protective shield against his dismissal or disengagement from the claimant's employ, by deploying the said confidential information to arm twist and black mail his employers the claimant into lifting his suspension. he did infact admitted that he gave the financial information to his counsel to enable him regain his job. Hence his counsel gave the claimant 7 days within which to withdraw his letter of indefinite suspension, failing which he threatened a legal action against the claimant and publication of the information. There is no gainsaying the fact that the defendant breached his contract of agreement with a view to blackmail his employer to submit to his demands; this is clearly done not in good faith. It is also the defence of the defendant that the disclosure of internal financial situation of the claimant to his counsel is qualified as a privilege information. The law is settled that client/lawyer communication shall not be disclosed unless with his client's consent. By Section 192 of the Evidence Act, a legal practitioner is not permitted unless with the express consent of his client, to disclose any communication made to him in the course of his engagement by his client, he is equally forbidden to disclose the content of any document with which he has become acquainted. What happened in this case painted a contrary scenario to what the provision of the evidence Act states. The defendant in this case as could be fathomed in the content and context of the letter exhibit AAA9 actually gave express consent to his legal practitioner Fred Agbaje & Co, to use the above stated information as a ploy to blackmail his employers into lifting his suspension. Section 192 actually works against the defence case and certainly not in his favour. The legal practitioner did not disclose such information to those agencies he referred to in his letter, assuredly because the main reason is not to protect public interest as required by law, but to use it as a bargain tool for his client, that smacks of professionalism and patriotism. It is so clear that counsel does not first and foremost have the interest of the nation at heart but buried that in the womb of his client self seeking interest. If indeed to the lawyer the EFCC/ICPC, the Police, AMCON, Minister of Aviation shall be ''interested in whereabout of these cash payment by your management'' why did he fail to reveal such information to the appropriate authorities as he alleged in exhibitAAA9? I wonder if the defendant infact has the best interest of his colleagues at heart as he claimed. It is plain from all stated above that the defendant disclosure of the claimant's internal financial information to his lawyer who in turn used it as a threat and blackmail against the claimant has breached his contract of employment. I so find. The defence in his reply address argued that the confidential information allegedly breached are not of commercial interest and thus the defendant did not breach the provision of the contract of employment. I have read thoroughly the provision of clause 2.22.1, the clause forbids disclosure of any commercial information that may harm the company's business that is the first part and the second part forbids disclosure of any(the emphasis is mine) internal aero matters. Commercial matters involves mostly money/financial matters thus the disclosure of the financial status and activities of the claimant to the third party is in breach of clause 2.22.1, ditto the second part of the clause which is all encompassing, which is that all employees of the claimant shall treat internal matters with strictest of confidence, the financial details released by the defendant to his lawyer as stated in exhibit AAA9 is an internal matter what this portends is that all staff of the claimant shall abide by the confidentiality clause as contained in the Admin manual of the claimant as it relates to all internal matters, be it commercial or otherwise. The case law authority of M.T. MAMMAN V. A.A. SALAUDEEN supra relied on by the defendant is not relevant with this present. I so say in view of the fact that there was no binding agreement by the parties in that case foreclosing disclosure of `confidentiality as it is in this case. What transpired in that case has to do with a customer of a bank who alleged that he gave bribe to the bank staff hence he could not repay his loan. The facts in that case are remarkably different from this instance, it is thus distinguishable from this case, as the contract of service between the parties in this case is sacrosanct and must be obeyed by both parties. Both parties were in their right frame of mind, adult with free will, willingly entered into the contract which includes a non disclosure clause, case law authorities or statutory provisions cannot vary the content of that binding unambiguous provision of the Admin Manual, in any case the defendant is not in any way opposing the binding effect of that clause. The law is that an unambiguous legislation should be given its simple and ordinary meaning. Moreso, where the defendant has admitted that he disclosed the confidential information to his counsel, his defence was that he did so not in bad faith. I have held supra that I do not agree with this, rather it is in my respected view that the defendant did that in bad faith. The defendant admitted under cross examination that he would not have given the information about the financial state of the company to his lawyer if he was not suspended. The import of which is that he would have acquiesce the allegedly ''shady financial deals'' of the claimant. what manner of 'good faith' is this? This is more of a callous and self conceited act orchestrated to get the defendant restored back to his job at all cost and not in the interest of the staff or the claimant who he claimed to protect. In view of the dearth of case law authorities on the issues raised by the parties in this case as to the enforceability or otherwise of a confidentiality clause against an employee who disclosed confidential information for which he has signed to keep secret about his employer to his counsel. I goggled it and my findings yield a little result, in that in most jurisdictions like India, Canada and USA, UK, it is linked to trade restraint agreement, in other words an employer is estopped from disclosing the trade secret of his employer to a competitive company. But the one and only thread that runs through all the jurisdiction is that with particular reference to confidentiality clause, the employee is said to have a common law duty to the employer to safeguard the employer's information. See RIVENDELL FOREST PRODS, LTD V. GEORGIA- PACIFIC CORP, 824 F. SUPP.961 @ 968(D. COLO. 1993). It went on to state that unless otherwise an agent is restrained from disclosing any confidential communication given him by his principal to any other person. Where an employee breaches the confidentiality clause he should be held liable in damages. It noteworthy that the defendant became first a staff of the claimant before he became a union leader, hence his primary responsibility is to the claimant by obliging the terms of his contract before any other responsibility. He rather chose to do otherwise thereby breaching his contract of employment. The defendant must be ready to face the consequences of that breach. I find from all the above that the defendant has breached the confidentiality agreement of his contract, consequent upon which he should be liable in damages. I so find and hold. As regards the second issue, which is whether or not the dismissal of the defendant by the claimant is wrongful. The defendant is counter claiming for wrongful dismissal, he thus has to prove that he had been wrongfully dismissed from office. In prove of this the defendant contended that he was wrongfully dismissed based on a spurious allegation ( as his counsel puts it) made by his colleague one Michael Adegbeingbe against the defendant at the panel of investigation set up by the claimant on 23th November 2012 over fraud perpetrated at the commercial department of the claimant. The defendant denied the claims and further contends that his suspension was against the procedure contained in the Admin Manual an agreement binding on both parties. According to the defendant the claimant also breached the provision of the disciplinary procedure of the Employees Handbook at pages 32- 36. The defendant continued that he was not giving fair hearing as espoused in the case of MIKE EZE V SPRING BANK PLC supra, he went on to state that he was not invited to the panel investigation of 23rd, November 2012. defendant was not queried and or afforded any form of hearing before he was suspended and or dismissed were uncontroverted and or tested during cross examination. Counsel urged the court to deem the fact admitted and uncontroverted as claimant failed to afford the defendant fair hearing in this matter, the suspension and subsequent dismissal of the defendant was not in conformity with the terms of his contract of employment and therefore wrongful. He urged the Court to so hold. The claimant in response stated that the Defendant/Counter-claimant has not only failed to show that he has a cause of action in unlawful dismissal against the Claimant/Defendant to counter-claim but has also failed to prove his case to have himself entitled to any relief(s) in the eye of the law. He cited the case of OKOMU OIL PALM CO. LTD. V. ISERHIENRHEIN [2001] 6 NWLR (PART 710) PAGE 660 AT 673 PARAS. G - H, 673 - 674 PARAS. H - B. The claimant counsel continued that Counsel also stated that the terms of employment between the Claimant and the Defendant requires that the Defendant afford the Claimant an opportunity to explain his actions. The defendant appeared before the panel of investigation on lst February, 2013. The Report of the Panel (including the proceedings of the Panel) is before the Court as Exhibit IG1. This is without prejudice to the fact that the offence of fraudulent practices and stealing are offences that attracts dismissal in accordance with Page 35 of the Employee Staff Handbook (Exhibit IO4). In addition, the Administrative Policies and Procedure Manual (Exhibit IO3) provides for suspension and dismissal for serious offences. Section 4.4.1 of the Administrative Policies and Procedure Manual (Exhibit IO3) provides that serious offences (including stealing and fraud) will result in suspension without pay pending investigation while Section 4.6.1 provides for dismissal of such an employee upon successful investigation into the alleged serious offence. Thus, the Counter-claimant was invited and he appeared before the panel of investigation on lst February, 2013. He was given an opportunity to state his defence. Thereafter, the decision and recommendation of the Panel of investigation as contained in the Disciplinary Panel of investigation Report was that the counter claimant be dismissed. He cited the Supreme Court case of NWOBOSI V. A.C.B. LTD, supra. He posited that the defendant was suspended along side other staff for fraud allegedly perpetrated by the defendant and some staff in the commercial department of the claimant and that to the claimant was to afford it the opportunity of investigating the matter administratively, thus inviting the defendant to state his side of the case but failed to respond. The law is long settled that a claimant seeking a remedy for wrongful dismissal must place before the Court his contract of employment and show the Court how it has been breached. The defendant in doing this produced before the Court his letters of appointment and confirmation on one hand and the employees Handbook and Admin Manual on the second part as the contract regulating his relationship with the claimant. Exhibit AAA2 is the defendant's letter of suspension dated 26th November, 2012. I have crisscrossed the handbook to check the disciplinary procedures provided for in the handbook exhibit IO4, the provision under dismissal is to the effect that the claimant may terminate the employment of its staff without notice or payment in lieu of notice for these reasons- 1. Endangering the safety of the company Aircraft; 2. The employee is guilty of conduct tendering to endanger the safety of life and property of the company or third party. 3. employee guilty of misconduct leading to discourage to discourage any person from doing business with the company. 4. Malicious damage to company's property. 5. Gross insubordination, fraudulent practices, stealing and negligence. 6. in case of gross misconduct by an employee which may justify dismissal, the Manager may either suspend him without pay or may immediately recommend his or her dismissal/termination without the prior consultation with Human Resources Manager. It is equally a prerequisite as contained in the Staff Handbook that '' Before any dismissal is effected, the Association will be given the chance to study the case and register their objections and comments within five working days'' It is also a condition precedent to dismissal by exhibit IO4, that '' No dismissal or termination can be effected without the final approval of the Managing Director or his designate.'' First of all, there is nothing in the employee's Handbook exhibit IO4 making provision for issuance of query to the claimant's erring staff. It is on record that the defendant was invited to an investigatory panel of 1st of February 2013 to answer to allegation of fraud in the company, his involvement of which was mentioned by one Michael Adegbehingbe. Questions were put across to him and he answered same. He denied any involvement in the alleged fraud. The panel recommended that he should be dismissed. It was observed that defendant's letter of dismissal was issued the same day he appeared before the panel investigating the allegation against him. This seems to be a premeditated action, I say so in view of the provision of the Handbook , captured above which states that no dismissal shall be effected without the Managing Director's final approval. There is nothing on exhibit IGI showing that the Acting Managing Director, one Obiano Ibru approved the dismissal of the defendant. In fact he was not present at the Disciplinary Committee's sitting. It is CW's submission under cross examination that the defendant was invited to the panel investigating the allegation but refused to attend it and that he was on suspension when he was invited. I have gleaned through the letter of indefinite suspension and Panel report of 23rd November, i.e exhibits AA2 and IO5, it is discovered that the defendant was suspended on 26th November, 2012 pending the outcome of investigation, which is in compliance with the contract of service, whilst the investigation panel sat on 23rd November, the import of this is that the defendant was suspended after the panel's meeting which is in order, he was however dismissed as I had earlier stated the same date the Disciplinary Committee of the claimant met. That in my considered view makes the whole process a sham, this is an apparent perversity to the terms of contract. I say so in view of the provisions of the Handbook which requires that the Association be given 5 working days within which to send in its comments or objection to management before any dismissal. The question that need to be answered now is whether in determining the rights of the defendant under the contract of employment, the defendant was allowed to state his side of his version in his defence on the allegations made against him at the Disciplinary Committee he faced on 1st February, 2013; whether the Association was given 5 days to make its comments and whether the Managing Director approved his dismissal? It is on record vide exhibit IG1 i.e. the DC report of 1st February 2013, specifically page 2 thereof that the defendant was invited to the Committee's sitting vide an email dated 29th January, 2013, he attended the panel sitting and answered questions put to him on the allegation of fraud discovered in the Commercial department of the claimant. That in my respected view has fulfilled the requisite condition of fair hearing in a simple master servant relationship. I place reliance on the decision of the apex Court in B.A. IMONIKHE V. UNITY BANK PLC [2014] 4 ACELR, 39 @ 45, that querying an employee and soliciting an answer from him suffices. Although in the instance case the defendant was not given a query as the name implies but was queried at the panel investigating the allegation by putting questions to him and elicited answers from him which he answered. This is a clear indication an opportunity to be heard and thus satisfies the fair hearing requirement of law. I so find and hold. The contract of employment binding on both parties provides that an employee may be dismissed summarily without notice and without wages for gross misconduct. See Alhaji Ekunola vs. C.B.N. & Anor. (2013) LPELR 2039 SC. That agreement is binding on both parties and not in contention in this instance. The findings and recommendations of the committee is that the defendant is culpable for breaching the confidentiality and non disclosure of information clause in his contract of employment and for having conducted in manner unbecoming of an employee of the company, he was thus recommended for dismissal for gross misconduct. That portion of the report is hereafter reproduced-- ''The committee considered the testimony of the commercial analyst, the contents of the letter to the Company received from his solicitors, his letter of offer and the disclosure of information clause in the senior staff hand book and resolved as follows: From the commercial analyst actions, he had clearly breached the confidentiality and non disclosure of information clause in his contract of employment and employee hand book for senior staff. Further to the above, he was culpable as he had conducted himself in a manner unbecoming of an employee of the Company. The recommended that Commercial Analyst (Akinwunmi Akingbehin) should be dismissed for gross misconduct and breach of confidentiality and non disclosure of information clauses in his contract of employment'' Gross misconduct has been held in plethora of cases to mean a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. Working against the deep interest of the employer was equally held to be a misconduct entitling the employer to summarily dismiss its employee. See MIKE EZE V SPRING BANK PLC Supra, OLANIYAN V. UNIVERSITY OF LAGOS [1985] 2 NWLR(PT.9) 599. There is no doubt that the claimant's decision above is to the effect that the defendant should be dismissed for gross misconduct, which is within the ambit of the contract of service, however, the only snag here is the non approval of the Managing Director. The Association's comments is as contained at page 5, although it seems the association was not given time to do so, it was a hush hush arrangement. The only breach of the contract of service as regards dismissal is the non approval by the Managing Director before the defendant's dismissal, moreso when he was not at the committee's sitting. It is consequent upon this that I find that the defendant's dismissal was wrongful for non approval of the Managing Director of the claimant and the premeditated manner in which it was done, that is contrary to the provision of his terms of contract. I so find and hold. As regards the defendants counter claim for reinstatement, the law is of common that in master/servant relationship, the Court cannot force a willing employee on an unwilling employer, Not even in a case where an employee was summarily dismissed for disclosing confidential financial information of the company to a third party. It is in the light of this that the Court finds and hold that the defendant's counter claim (2) for reinstatement fails. Now, what is the damages in accruable to the defendant in the circumstance. The Apex Court has clearly stated that the measure of damages for wrongful dismissal is, prima facie, the amount the Plaintiff would have earned had he continued in the employment but where the Defendant had the right to terminate the contract before the end of the term, then damages should only be awarded according to the period of notice he ought to have been given and the employee is expected to mitigate the damages. See Imoloame v. W.A.E.C. (1992) NWLR (Pt. 265)303. Osisanya v. Afribank Nig. Ltd ((2007) Vol. 4 MJSC 128 at 139 para. F, What is then the damages the defendant is entitle to in this instance, It is on record that the annual emolument of the defendant as at 11th June 2012 was N3,645,525.63, this includes his leave allowance and 13th month allowance. The monthly salary of the defendant is N281,963.59. As a Senior Staff, although the period of notice was not stated in his letter of promotion to the position of a commercial analyst, the law is settled that in computing the required period of notice at common law where same is not provided for in the contract of service, factors that should be considered are the status of the employee and his salary, in this case since the defendant was a senior officer before his dismissal he should therefore be entitled to 3 months notice or 3 months salary in lieu, which in this case is the sum of N845,890.75. Accordingly, It is my finding that the defendant is entitled to 3 months salary as damages for wrongful dismissal. In sum it is obvious from all that have been decided supra that the claimant's claims succeeds in part, while the defendant's counter claim equally succeeds in part. Following which I make the following declarations and orders-- 1. It is hereby declared that the defendant breached the confidentiality clause in his condition of service by disclosing the claimant's financial information to his lawyer who in turn used it to blackmailed, threatened to publish same. 2. The defendant is hereby restrained from disclosing the claimant's confidential information to any persons or publishing same. 3. It is hereby declared that the defendant was wrongfully dismissed for non approval by the Managing Director of the claimant. 4. It is hereby ordered that the claimant shall pay damages for the wrongful dismissal to the defendant/counter claimant in the sum of N845,890.75. 5. It is equally ordered that the defendant shall pay the sum of N2,000,000.00 as damages to the claimant for breaching the non disclosure clause of his contract of service. 6. No order as to cost, both parties shall bear their respective cost. Hon. Justice Oyewumi Oyebiola O. Judge