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REPRESENTATION Kemi Pinheiro SAN with Tokunboh Davies, Opeyemi Adeyemi and Mutiat Olatunji Miss. Tunde Busari SAN with Funke Onakoya, Gboyega Alawode and Zainab Babalola for the Defendant. JUDGMENT The Claimant approached the Court by a General Form of Complaint dated 3/10/13 and sought the following reliefs against the Defendant - 1. A Declaration that the employment of the Defendant by Nigeria Bottling Company Limited is a breach of Clause 23 of the Contract of Employment between the Claimant and the Defendant. 2. An Order restraining the Defendant from further breach of the Contract of Employment between the Claimant and the Defendant by taking up employment in Nigerian Bottling Company Limited howsoever or in any other competing company or entity whatsoever trading in beverages, soft drinks or table water for a period of 5 (five) years from 6th April 2013 in accordance with the Contract of Employment between the Claimant and the Defendant. 3. An Order for the payment of the sum of N50,000,000.00 (Fifty Million Naira) by the Defendant to the Claimant as damages for the breach of clause 23 of the Contract of Employment between the Claimant and the Defendant prior to the delivery of judgment in this suit. 4. The cost of this action. 5. Interest on all sums due to the Claimant at the rate of 21% per annum from the date of the institution of this action till judgment is delivered and thereafter at the same rate or any other rate this Court deem fit till final liquidation of the judgment sum. The Defendant reacted by filing a Statement of Defence and Counterclaim and all requisite processes on 31/10/13. The Defendant prayed the Court for the following counter claims as follows - 1. A Declaration that the aforementioned Clause 23 in the Counterclaimant’s contract of employment with the Claimant restraining the Counterclaimant in perpetuity from seeking employment with companies in the same or similar business with the Claimant in Nigeria after his termination of employment with the Claimant, without any justifiable reasons is unreasonable, unjustifiable, oppressive and against public policy and therefore null and void. 2. A Declaration that the said Clause 23 of the contract of employment between the Counterclaimant and the Claimant restraining the Counterclaimant in perpetuity from accepting any job in the same or similar field for a period of 5 (five) years after termination of contract, and thereafter, restraining the Counterclaimant from working for competing companies in Nigeria i.e. companies in beverages, soft drinks, and table water industry is unreasonable, unjustifiable excessive and against public policy and therefore null and void. 3. An order striking out the said Clause 23 in the contract of employment between the Counter-claimant and the Claimant for being unreasonable, oppressive, unjustifiable, excessive and against public policy and also null and void. The hearing of this suit commenced on 17/2/15 when the claimant opened his case and called one Mrs. Ayomide Olubode testified as CW1. Witness adopted her written witness depositions on oath dated 3/10/13 and 2/12/14 as her evidence in chief and tendered 7 documents as exhibits. The documents were admitted and marked as Exh. C1(1-6), Exh. C2 (1&2), Exh.C3, Exh. C4 (1&2), Exh. C5 (1-9), Exh. C6 and Exh. C7 (1&2) respectively. The case for the Claimant as deduced from the pleadings filed is that the Claimant (formerly Classic Beverages Nigeria Limited) employed the Defendant as its Chief Operating Officer by virtue of a letter of employment dated 10/1/11; Clause 23 of the said letter of employment prevents the Defendant from accepting any job in the same or similar field to the Claimant in Nigeria for a period of 5 (five) years after termination of the employment contract, and after this period, never to work for competing companies in the same industry in Nigeria; that by virtue of the Defendant’s position in the Claimant’s Company; the Defendant had unrestricted access to the Company’s trade secrets, future plans and confidential information of the Claimant; that by his letter of termination dated 27/11/12, the Defendant resigned his employment with the Claimant citing compelling family reasons; that shortly after disengagement from the Claimant and in alleged breach of Clause 23 of the Defendant’s letter of employment, the Defendant took up employment with Nigerian Bottling Company Limited as its New Product Development Director; that by taking up employment with the Nigerian Bottling Company Limited the Defendant has put himself in a position to disclose its trade secrets, future plan of the Claimant to the Nigerian Bottling Company Limited and that the Defendant’s breach of Clause 23 of the Defendant’s contract of employment has occasioned substantial damage to the Claimant’s business and puts the Claimant’s business in a disadvantaged position with its direct competitor. Under cross examination, witness testified that prior to working with Ani Secretaries Ltd she used to working with Settom Trust Ltd and Add & Co. Solicitors U.K; that he has been working for Ani Secretaries Ltd for 5 years; that the Claimant was incorporated in 2000; that they are external company Secretaries; that they deal with Statutory Compliances, with internal regulations, Corporate Governance; that she is aware of the facts of this case; that by virtue of his position as Company Secretary she is aware of the facts of this case; that they have knowledge of operational and administrative issues of the Claimant to an extent; that the solicitors prepared her witness deposition; that she provided the information; that the 2witness statement is her voluntary testimony. The witness stated that the Defendant is not one of the promoters of the Claimant; that he was one of the Directors; that his Directorship was registered on the Corporate Affairs Commission; that the Defendant was employed sometimes in January 2011; that in 2011, Claimant did not have a Managing Director; that the Head then was Chief Operating Officer; that at the time of Defendant’s employment, Claimant had a Chairman & Chief Executive Officer as the overall Head; that Mr. Mahinder Baswani was the Chairman/CEO then; that Mr Sushail Ramchandani is the Managing Director of sister Company of Claimant-Jotna Nigeria Limited; that at some point Managing Director of Jotna Nig. Ltd was acting as Managing Director of the Claimant when the latter office became vacant; that notwithstanding Exh. C5 (1-9), it will not be proper to assume that Jotna Nig. Limited exercises operational and administrative control over the Claimant. The witness stated further that some Directors of Jotna Nigeria Limited are also Directors of the Claimant; that they are as follows- Mr Bankole Animashaun, Mr Sushail Ramchandani and Mr. Mahinder Vaswani; that the Defendant is the most Senior Officer of the Claimant and plays supervisory role; that she, witness, is not a Chartered Secretary but she is aware of corporate governance; that Managing Director and Chief Executive Officer have the same role in corporate governance generally; that operational functions refer to the day to day running of an organization; that strategic function relates to planning; that the Chief Operating Officer, Factory Manager, Logistic Manager, Human Resources Manager, Fleet Manager are responsible for the day to day running of the Claimant; that the Chief Operating Officer, in consultation with Chairman & Chief Executive Officer (CCEO) and Board of Directors take strategic decisions for the Claimant; that she agrees that the Board of Directors takes strategic decisions; that the Chief Operating Officer, and the Chairman/CEO are members of the Board of Directors of the Claimant; that Jotna Nigeria Limited plays no role in strategic decisions of the Claimant; that however Directors of Claimant who are also directors of Jotna Nigeria Ltd do so in their private capacities. The Defendant opened his case on 1st July, 2015 by calling a witness. DW1- Prahlad Kottapppurath Ganghadaran adopted his written witness deposition dated 5/11/13 as his evidence in this case, tendered 4 documents as exhibits. The documents were admitted and marked Exh. D1 (1-6), Exh. D2, Exh. D3 and Exh. D4 respectively. Witness thus urged the Court to dismiss the case of the Claimant and allow him continue his employment without stress; and that his counterclaim be granted. The Defendant denied responsibility for any alleged damage or loss of earning suffered by the Claimant and averred that he did not breach the provisions of Clause 23 of the contract of employment as the said clause seeks to indefinitely restrain him from taking up employment in same or similar fields with the Claimant for a period of 5 (five) years and thereafter not to work for competing companies i.e companies in the beverages, soft drinks and table water industry for as long as he remains in Nigeria; that he was an erstwhile employee of the Claimant as the Chief Operating Officer, which said position was not the most senior or sensitive position of the Claimant's company; that he resigned his employment with the Claimant for compelling personal reasons; that his subsequent employment with the Nigerian Bottling Company (NBC) is not a breach of the provisions of Clause 23 of his contract of employment which clause being in restraint of trade is in the circumstances, unreasonable, oppressive, injurious and offends public policy. The Defendant further averred that he has every right to exercise and put his personal talent, intellect and skills to use in every employment of his choice and that the Claimant did not give any consideration or compensation whatsoever to the Defendant before during or after commencement of his employment with the Claimant, in respect of clause 23; that he is not aware of any trade secrets or future plan of the Claimant that he could divulge to his present employer; that his intellectual knowledge and competence are all that are required by his new employer in his capacity as a New Business Development Manager and this intellectual knowledge and competence cannot be bought or restrained; that his job as the Chief Operating Officer with the Claimant only covered sales and marketing of the Claimant's products; that the Claimant has set out to victimize him for leaving their employment; that his responsibility as the New Business Development Manager of NBC is to use his personal skills and intellect to create new and fresh product/businesses that do not exist presently in NBC whereas his job description at the Claimant was to sell and market the Claimant's existing products; that the Claimant inserted clause 23 in his contract of employment to prevent the Defendant from being gainfully employed in any beverage company in Nigeria indefinitely and that Clause 23 of the contract of employment seeks to restrict altogether the Defendant's right to build a career in the beverages industry in Nigeria whereas, the Defendant nurses the ambition to continue to earn his livelihood and take care of his family from his career in the beverages companies. Under cross examination DW1 confirmed his signature on Exh. C1, Exh C6 and Exh C7; he also confirmed attending the meeting indicated in Exh. C2. He stated further that prior to his employment with Claimant he worked for a Company called “phone warehouse” engaged in retail, sales of mobile phones; that before working with Claimant he was not engaged with any beverage Company in Nigeria; that prior to his engagement with Claimant, all his work experience with beverage Company was outside Nigeria; that he is presently employed with Nigerian Bottling Company Limited as New Business Development Director; that so far he has not introduced any new business for his employer; that Fanta Apple was a product of Nigerian Bottling Company but was rested and that the Fanta Apple has been reintroduced At the close of trial and following the direction of the Court, learned senior Counsel to the Defendant filed a 27-page final written address on 20/8/15. In it the learned silk set down 3 main issues as follows for determination - 1. Whether clause 23 of the Defendant’s Contract of Employment is valid and enforceable having regard to the fact that it seeks to restrain the Defendant from accepting job in the same as similar field in Nigeria for 5 years after termination of his employment with the Claimant and thereafter from seeking alternative employment in compelling companies in Nigeria?. 2. Whether the Claimant is entitled to the reliefs sought in its claim?. 3. Whether the Defendant/Counter-claimant is entitled to his counter-claim?. Arguing issue 1, learned senior submitted that Clause 23 in the contract between the parties is referred to as contract in restraint of trade defined as one in which a party covenants to restrict his future liberty to exercise his trade, business or profession in such a manner and with such persons as he chooses, citing Tanksale v. Rubee Medical Centre Limited (2013)12 NWLR (Pt. 1369) 548 at 572 & Petrofina Great Britain v. Martin (1966) Ch. 146. According to Counsel, the restriction contained in Clause 23 of the contract could be divided into 2 main parts - i. That the Defendant will not accept any job in the same or similar field in Nigeria for a period of 5 years after termination of his contract; and ii. That after 5 years the Defendant shall not work in Nigeria for competing companies, i. e companies in beverages, soft drinks and table water industry. The learned senior Counsel submitted that it is a settled principle of common law that contracts in restraint of trade is prima facie void and unenforceable and has been frown upon by the Courts on grounds of public policy on the rationale that a worker is an employee is usually in a weaker position to negotiate the terms of his contract with his employer. Counsel cited Halsbury's Laws of England, 5th Edition Vol. 39 at pages 42-45, Homer v. Graves (1831) Bing 735. Arguing further, learned Silk submitted that by Nordenfelt v. The Maxim Nordenfelt Guns and Ammunitions Co. (1894) A.C 535 - a. All restraint of trade, whether general or partial, in the absence of special justifying circumstances, are contrary to public policy and void; b. The Claimant must show that he has a protectable interest he seeks to protect; c. The restraint can only be justified if it is reasonable in the interests of the contracting parties and in the interest of the public; d. The onus of proving that a restraint is reasonable, between the parties, rests upon the persons alleging that it is so; and e. The onus of showing that a restraint is against the interest of the public lies with the employee. Counsel also cited Koumoulis v. Leventis Motors (1973) All NLR 789. Counsel submitted that the Claimant must satisfy that Defendant's employment in another beverage Company would injure its business; that it must show that Clause 23 of the contract is reasonable in the interests of the parties and in particular that it is designed to protect some proprietary interest owned by the Claimant citing Attwood v. Lamont (1916) A.C 710. According to Counsel, Claimant has failed to show that the restraint is reasonable in the interest of the parties; that Clause 23 is not in the interest of the Defendant in that it restrained his liberty to carry on trade with other persons or parties in same or similar fields in such a manner as he chooses for 5 years in Nigeria after the termination of his employment and that the second segment of Clause 23 forbids the Defendant from working in Nigeria with competing companies. Citing Morris v. Saxelby (1916)1 A.C. 688, learned silk submitted that a restraint of trade will be unenforceable if its sole purpose is to prevent competition as an employer is not entitled to protect himself against the competition of his emplyee and referring to Exh. D1 Counsel submitted that the duties of the Defendant are not stated on that exhibit; that the Defendant by virtue of his job description as COO was not privy to any trade secret, future plans or confidential information of the Claimant; that Defendant was not the most senior officer of the Claimant as he was reporting to the Group Chairman & Chief Executive Officer (CCEO) of the Claimant and that by Exh. C6 (the organogram of the Claimant) the Defendant was at par with other managers of the Claimant who in turn report to the CEO who has sensitive matters and confidential information as well as trade secrets of the Claimant. According to learned silk, the Defendant was employed as Chief Operation Officer of the Claimant for the purpose of marketing Claimant's existing products and was subsequently employed by Nigerian Bottling Company as its New Business Development Manager where he is expected to use his vast experience and intellect to create new and fresh products/businesses that do not currently exist in the Nigerian Bottling Company; that Claimant has failed to establish that the job descriptions handled by Defendant in both companies are similar for easy transfer of his skills and alleged trade secrets. Counsel commended the case of Mestrop v. Kholopiklaan Furniture Nigeria Limited Unreported-Ik/180/69 ''where the Court refused to enforce the contract on the grounds inter alia that the Defendant's had failed to establish that the Plaintiff was employed to do the same or similar type of job as he did when employed by them. In this case, the Plaintiff was employed by the Defendant as a Metal Engineer while he was a General Manager in his new job''. Secondly, Counsel submitted that the Claimant has failed to lead evidence to the effect that the Defendant had access to trade secrets or the nature of the trade secrets that the Defendant could divulge and has also failed to prove that the restraint clause is reasonable in the circumstances. Counsel cited Sasegbon's Laws of Nigeria (An Encclopaedia of Nigerian Law and Practice) vol. 9 page 307 at para. 808 quoting from the Judgment of Dunlop Ag. J in CFAO v. George Leuba (1918)3 NLR 67 at 76 and prayed the Court to so hold. Learned silk added that the nature of the restraint is wider than necessary to protect the business of the Claimant, clearly unjust, unreasonable and repugnant to equity, good conscience and consequently equity citing Attwood v. Lamont (1920)3 K.B 571 and Hirt & Carter (Ply) Limited v. Mansfield & Anor. 2008 (3) SA. It was the submission of the silk that the Claimant failed to lead evidence to show by its pleadings or during trial that the Defendant was privy to its trade secret or confidential information which he could have divulged to his new employer or that the Defendant was responsible for reintroduction of the Fanta Apple Drink and citing Ukpabio v. N.E.V.C.B (2008)9 NWLR (Pt.1092) 219 at 227 urged the Court to so hold. Submitting further, learned silk said that the Clause 23 of Exh. D1 is unreasonable and hence unenforceable. According to Counsel, Courts have held that where a restraint is reasonably necessary for the protection of an employer but fatal to the employee earning his living in that country, such restraint will be held unreasonable because it is contrary to public policy to permit a man to bargain away his right to pursue the occupation in which he can best serve himself and the society, citing Morris v. Saxelby. Counsel submitted that the construction of Clause 23 of Exh. D1 is too wide as it seeks to restrain the Defendant in perpetuity from working in any beverage company in the entire Nigeria, inclusive of any beverage company which the Defendant may set up in Nigeria for the public good. Learned silk then submitted that clause 23 is manifestly unreasonable because a trade restraint cannot last forever and that the Courts are usually reluctant to enforce a trade restraint that is applicable to the whole country. Still on issue 1, learned silk submitted that the Defendant has the free right of entry and exit from one employment to the other and that Clause 23 of Exh. D1 is contrary to Article 22 of the African Charter on Human & People's Rights which provides that 'All people shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in equal enjoyment of the common heritage of mankind'. Counsel also referred to Article 15 of the African Charter providing that every individual shall have the right to work under equitable and satisfactory conditions and submitted that Clause 23 of Exh. D1 works against the right of the Defendant as guaranteed by African Charter to be deprived of the economic well being of himself and his family and that the said clause makes it impossible for the Defendant to use his expertise and experience to provide financially for his family. Referring to Section 254C(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) conferring powers on this Court to deal with matters pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified in relation to labour, employment, workplace, industrial relations or matters connected therewith prayed the Court to so hold that Clause 23 of Exh. D1 is unreasonable, unenforceable, contrary to public policy and consequently void. The second issue is whether the Claimant is entitled to the reliefs in its claim. On this issue, learned silk submitted that the onus is on the Claimant to prove that the restraint is reasonable and that there is some proprietary interest owned by the employer for which the restraint is reasonably necessary, citing Koumolis v. Leventis Motors (1973)All NLR 789. Counsel submitted that the law is that he who alleges must prove citing Audu v. Guta (2004)4 NWLR (Pt. 864) 463 at 465 and that the Claimant has not proved that the Defendant had unrestricted access to all the trade secrets and future plans of the Claimant; that Clause 23 of Exh. D1 being unreasonable and against public policy renders Exh. D1 null and void and that an a contract is illegal if the consideration or the promise involve doing something illegal or contrary to public policy or if the intention of the parties making the contract is thereby to promote something which is illegal or contrary to public policy, is void and cannot be the foundation of any legal right, citing S.D.C Cementation (Nigeria) Limited & Anor. v. Nagel & Company Limited & Anor. (2003)4 NWLR (Pt. 811) 611 at 637 & Nnadozie v. Mbagwu (2008)3 NWLR (Pt. 1074) 363 at 394. Counsel further prayed the Court to hold that the Claimant's claim for general damages cannot be sustained having failed to establish that the restraint of trade contained in Clause 23 of Exh. D1 is reasonable and failed to adduce evidence to prove the injury suffered to which damages would be awarded. On the third issue which is whether the Defendant/Counter Claimant is entitled to his counter-claim, learned silk placed reliance on the argument already canvassed. Counsel reiterated the fact that Clause 23 of Exh. D1 is not valid or enforceable because it seeks to restrain the Defendant from accepting job in the same or similar field in Nigeria for 5 years after termination of his employment also restrains the Defendant from seeking alternative employment in competing companies. He prayed the Court to grant the counter-claim of Defendant/Counter-claimant. The final written address of the Claimant was filed on 5/11/15. In the 23-page address, learned senior Counsel set down the following 2 issues for determination - 1. Is the Defendant bound by the Clause 23 of the Contract of Employment he freely entered into?. If yes, is the aforesaid clause unreasonable and unenforceable?. 2. Whether in the circumstance of this case, the Claimant is not entitled to the reliefs sought and the Defendants counter claim ought not to benefit from a dismissal. On issue 1, learned silk submitted that it is a sacred principle of law that parties are bound by the condition and terms of contracts and agreements freely and voluntarily entered into by them without addition and that such contracts in the absence of fraud, duress, undue influence and misrepresentation will be upheld by the Court citing Isheno v. Julius Berger (Nig.) Plc (2008)6 NWLR (Pt. 1084) 582, kaydee Ventures Limited v. Ministry of F.C.T (2010)7 NWLR (Pt. 1192) 171 & Sunny Ositez International Nigeria Limited v. Delmas & Ors. (2013) LPELR-21473 (CA). The silk submitted that the Defendant under cross examination confirmed his signature on Exh. D1 and that the Court should infer that the Defendant was aware of the terms and conditions therein; that he freely entered into same; hence bound by same; that Defendant also admitted under cross examination that he is currently employed as the New Business Development Director of the Nigerian Bottling Company Limited; that the Claimant and the Defendant's new employer are both beverage companies involved in the manufacturing, marketing and distribution of beverages, soft drinks and table water in Nigeria and that the Defendant's new employer reintroduced the Fanta Apple drink which is similar to the Claimant's flagship product back into the market after the set back suffered by the initial introduction of the drink and that the Defendant's new employer is a company in the same or similar field with the Claimant and thus falls under the ambit of Clause 23 of Exh. D1. According to learned silk, despite the strict principle laid down in Nordenfelt v. Maxim Nordenfelt (1894)A.C 535 which held that all covenants in restraint of trade are void as being contrary to public policy in the absence of special circumstances justifying them, the Courts have in recent times deviated from that strict principle. Thus according to learned silk, flowing from the decision in Smile Inc. Dental Surgeons v. Lui Andrew Stewart (2011) SGHC 266 flowing Man Financial (S) Pte Limited v. Wong Bark Chuan David (2008)1 SLR (R) 663 the principles include inter alia the employer's interest in protecting confidential information; the duration of the clause being imposed and the size of the geographical area; and the interests of the employee in being able to earn a living using his skill, experience and knowledge. In the instant case, learned senior Counsel stated that the Defendant was employed as a Director and COO of the Claimant whose duties were not limited to the growth and profitability strategy of the Claimant but also day to day operations and future plans referring to Exh. C7; that Exh. C7 prepared by the Defendant showed that the Defendant had knowledge of growth plan, capital market of the Claimant company amongst other information; that the Defendant was well equipped in preparing Exh. C7 by virtue of his involvement in the overall management and administration of the Claimant; that by preparing Exh. C2, the Defendant was the only officer abreast of the confidential information of the Company and that by the Organogram of the Claimant, it is clear that other officers of the Claimant report directly to the Defendant thus making the Defendant the most senior officer of the Claimant after the Chief Executive Officer. Counsel therefore urged the Court to hold that the Defendant has the trade secrets and confidential information of the Claimant in his possession and same is being used by the Defendant to the benefit of another which the Claimant has a legitimate interest to protect. Secondly, learned silk argued that the scope of a restraint clause in terms of geography is a cardinal requirement in determining the reasonableness or otherwise of such clause. On the duration of the clause being imposed and the size of the geographical area, Counsel submitted that if an agreement in restraint of trade is intended to cover a range and period too wide and longer than necessary for the protection of the employer's business, the Court would not give effect to it. Learned silk cited Foster & Son Limited v. Suggett (1918)35 TLR 87 where an employee covenanted that he would not be employed by a competitor for 5 years anywhere in the United Kingdom after leaving the employment of the Plaintiffs and the Court held that the covenant was both reasonable and enforceable given the nature of the Plaintiff's business and the nature of the Defendant's functions in the Plaintiff's business. Counsel also cited Esso Petroleum Co. Limited v. Harper's Grace Limited (1966)A.C and Andrews Advertising Pty Limited v. Andrews (2014) NSWSC 318. Learned senior Counsel submitted that in the light of the cases cited that the 5 year restraint is reasonable; that the restraint exceeding 5 years is justified in the circumstances given the peculiar facts of this case; that the Defendant is only restrained from taking up employment in beverage companies in competition with the Claimant and that the Defendant can take up employment with other beverage companies such as Nestle, Cadbury etc which are not in competition with the Claimant and that the Defendant has experience in other industries and as such can earn a living in Nigeria. Counsel prayed the Court to so hold. Still on issue 1, learned senior Counsel submitted that the ability of an employee ti use his skill and experience to earn a living after leaving an employment also plays a role in determining whether or not a restraint clause would be upheld; that in the instant case, the Claimant only seeks to restrain the Defendant from a particular line of employment which is not a professional calling; that the Defendant admitted under cross examination that prior to employment with the Claimant he had worked for a company called ''Phonewarehouse'' and that the court should hold that the Claimant has interest to protect; that the duration is reasonable and that the Defendant can employee his skills and knowledge to earn a living; and that while Clause 23 is general and purports to rphibit any employment in Nigeria within 5 years in a similar field, the Defendant can work in a similar filed outside Nigeria. Counsel urged the Court to resolve this issue in favour of the Claimant. On issue 2, learned silk stated that it has been established that there was an agreement between the parties; that the Defendant breached Clause 23 of the said agreement; that the clause is reasonable and enforceable and that in the circumstances the Court should grant all the orders as prayed by the Claimant in its Originating process. Respecting claim for general damages, Counsel submitted that the Court has the power to award damages upon a judicious estimation from the prevailing circumstances once a breach of contract has been established as in this case. According to Counsel, where a party is in breach of a contract, the damages which the other party ought to receive in respect of such contract should be such as may be fairly and reasonably considered either as arising naturally, that is, according to the usual course of things from such breach itself or such as may be reasonably supposed to have been contemplated by the parties at the time they made the contract and the probable result of the breach, citing Johnson Wax Nigeria Limited v. Sanni (2010)3 NWLR (Pt. 1181) 235 at 250-251, Wema bank Plc v. Oludare (2015) LPELR-24828 (CA), Neka B.B.B. Mfg. Co. Limited v. A.C.B. Limited (2004)2 NWLR (Pt. 858), Gari v. Seirafina (Nig.) Limited (2008)2 NWLR (Pt. 1070)1 at 19-20. In the instant case, learned senior Counsel submitted that the fact that the Claimant which is a smaller Company compared to Nigerian Bottling Company will suffer and is suffering so much because its sales have gone down the Court should award Fifty Million Naira as claimed as fair and reasonable having regards to the entire facts and circumstances of this case and the gravity of the breach complained of. Finally, the senior Counsel prayed the Court to hold that the Defendant is bound by Clause 23 of the contract of employment he freely entered into and same is reasonable and enforceable; that in the circumstance of this case, the Claimant is entitled to the reliefs sought and that the Defendant's counter-claim ought to be dismissed. On 27/11/15, the Defendant filed a 9-page Reply on Points of Law. It was dated the same date. On the submission by the learned Counsel to the Claimant that paragraphs 6.18, 6.20, 6.36, 6.37 & 6.41 of the Defendant's Final Written Address be discountenanced on the grounds that the arguments canvassed there did not erupt during trial and are unsupported by pleadings, Counsel cited Goji v. Paye (2003)8 NWLR (Pt. 823) 583 as response where the Supreme Court stated inter alia that evidence led during cross examination on issues joined is not inadmissible because such evidence is not supported by the pleadings of the party eliciting the evidence and that such evidence is valid and authentic as evidence procured from examination in chief. Secondly, the Claimant had contended that the restraint clause is binding on the Defendant because Exh. D1 was entered into freely and voluntarily by the parties. In response to this learned senior Counsel to the Defendant submitted that a contract tainted with illegality or against public policy is not enforceable by the Court even though it is entered into freely or voluntarily; that the Court will not come to the aid of any party to an illegal contract who wishes to enforce it and that the proper order a Court should make where a suit filed in respect of a contract tainted with illegality is one of dismissal citing F.B.N. Akinyosoye (2005)5 NWLR (Pt. 918) 340 at 352, A.I.C Limited v. N.N.P.C (2005)1 NWLR (Pt. 937) 563 at 571, Pan Bisbilder (Nig.) Limited v. F.B.N (2000)1 NWLR (Pt. 642) 697 and F.B.N Limited v. Moba farms Limited (2006)8 NWLR (Pt. 928) 492 at 497. Learned silk added that the current trend in Nigeria regarding restrictive covenant is reflected in Afropim Engineering Construction Nigeria Limited v. Jacques Bigouret (2012) FWLR (Pt. 622) 170 and Hygeia HMO v. Simbo Ukiri Unreported: NICN/LA/454/2013. Counsel urged the Court to dismiss the case of the Claimant and grant the counter-claims of the Defendant. I have carefully read and understood all the processes filed by the learned silk on either side. I listened to the testimonies of the witnesses called, watched their demeanour while testifying, reviewed and also evaluated all the exhibits tendered and admitted in this case. In addition to all this, I listened with attention and understanding to the oral arguments of both learned Senior Advocates of Nigeria in this case. Having done all this, I have come to narrow the issues for the just determination of this case to be as follows - 1. Whether the Claimant has proved its case to be entitled to any or all of the reliefs sought. 2. Whether the Defendant is entitled to any of its counter-claims. The bottom line of this case respecting issue 1 is the enforceability of Clause 23 of Exh. D1 which is the contract document alleged to have been voluntarily signed by both the Claimant and the Defendant. Simply put that clause restricted how, in what manner and the extent to which the Defendant may seek employment elsewhere upon leaving the services of the Claimant. Clauses as the one in the instant case are not unusual. They have found their ways into employment contract from time immemorial. They are often referred to as covenant in restraint of trade. Generally speaking, covenant as this is referred to or described as one in which a covenantor agrees with another party to restrict his liberty in the future to carry on trade, business, profession or calling with other persons not parties to the contract in such a manner as he chooses. It is simply some kind of agreed provision that is designed to restrain another's trade. See Petrofina Great Britain v. Martin (1966) Ch. 146 & Tanksale v. Rubee Medical Centre Limited (2013)12 NWLR (Pt. 1369. Restraint of trade is a common law doctrine relating to enforceability of contractual restrictions on freedom to conduct business. It is said to be a precursor of modern competition law. Generally speaking, such a restraint is unenforceable as being contrary to the public policy of promoting trade and business unless the restraint of trade is reasonable to protect the interest of the purchaser of a business and hence void ab initio. If both parties to it agree to and did perform same, that is the end of it. But the Court will not assist either party to provide a platform for its enforcement. In an old English leading case of Mitchel v. Reynolds (1711), Lord Smith L.C said thus - ''... it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it on according to his own discretion and choice. If the law has regulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his free discretion''. In Nordenfelt v. Maxim, Nordenfelt Guns and Ammunition Co. (1894)A.C 535., a Swedish arms inventor promised on sale of his business to an American gun maker that he ''would not make guns or ammunition anywhere in the world, and would not compete with Maxim in any way''. Lord Macnaughten in that case stated inter alia that such a restriction is justified only if it is reasonable, that is, in reference to the interest of the parties concerned and reasonable in reference to the interest of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public. This was the Common Law position and which was prevalent until the decision in Herbert Morris Limited v. Saxelby (1916)1 A.C 688 where the Court for the first time held that there could exist certain circumstances where contract in restraint of trade are enforceable. Such circumstances are said to include (i) where such contracts were necessary to protect an employer's legitimate competitive interest; (ii) where the enforcement of such contract was neither unreasonably burdensome to the employee nor harmful to the public interest; and (iii) where the time and geographical scope of the restriction is reasonable. The Common Law position in relation to contract in restraint of trade would seem to have been followed even by Courts of other jurisdictions. For instance in most States in the United States of America no-compete covenants are viewed with suspicion by most Courts and will sparingly be enforced. Thus in BDO Seidman v. Hirsh Berg 690 N.Y. 2nd 854 (Ct. App.1999), the Court held that a no-compete covenant would be enforced provided it is reasonable and that a restraint is reasonable if it (i) is not greater than is required for the protection of the legitimate interest of the employer; (ii) does not impose undue hardship on the employee and (iii) is not injurious to the public. In India, any agreement which restrains anyone from carrying on a lawful profession, trade or business is void to that extent. See Indian Contract Act, 1872. Thus in Taprogge Gesellschaft MBH v. IAEC India Limited (1988)AIR Bomm, the Court held that a restraint operating after termination of the contract to secure freedom from competition from a person who no longer worked within the contract, was void, even if such a covenant was valid under German law and that it could not be enforced in India. See also Gujarat Bottling Company Limited v. Coca Cola Co. (1995)5 S.C 545 & Anoop Narayanan; Validity of Non-Compete Covenants in India, www.majmudarindia.com. Visited on 25/2/16. Under the Nigerian law, the position is a reflection of the Common Law heritage of the country. It is as stated by the Supreme Court in Andreas I. Koumoulis v. Leventis Motors Limited (1973) 11 S.C 100, (1973)All NLR 789 that all covenants in restraint of trade are prima facie unenforceable and that they are only enforceable if they are reasonable with reference to the interest of the parties concerned and the public at large. See also C.F.A.O. v. George Luba (1918)3 N.L.R 67, Dr. Shirish Tanksale v. Rubee Medical Centre Limited (2013) LPELR-21445 (CA), Afropim Engineering Construction Nigeria Limited v. Jacques Bigouret (2012) FWLR (Pt. 622) 170 and Hygeia HMO v. Simbo Ukiri Unreported: NICN/LA/454/2013. See also Uko, E.J; The Validity of the Doctrine of Restraint of Trade Under the Nigeria Labour Law, International Journal of Advanced Legal Studies and Governance, Vol. 4 No. 2 August 2013 p. 34. From the foregoing state of the law therefore, for the Claimant to succeed and be entitled to its claims, it must discharge the burden of proof placed on it. It is for the Claimant to prove his case by adducing credible, cogent and admissible evidence. See Health Care Product Nigeria Limited v. Bazza (2004)3 NWLR (Pt. 861) 582 at 605-606. Within the context of this case, the Claimant is obliged to prove that it has an interest which is capable of being protected; that the restraint on the Defendant is reasonable and that it is not contrary to public policy or interest. In proof of its case, the Claimant called one witness - one Mrs. Ayomide Olubode who tendered 7 exhibits. I consider it imperative to state the exhibits as numbered as follows - (1). Exh. C1- Employment contract dated 10/12/10; (2). Exh. C2 - Extract of Minutes of Meeting of Board of Directors of the Claimant dated 7/4/11; (3). Exh. C3 - Letter of Resignation of the Defendant dated 27/11/12; (4). Exh C4 -Claimant's Solicitor's Letter dated 25/7/13; (5). Exh. C5 - Certificate of Identification of trails of E-mails dated 2/7/14; (6) Exh. C6 - Claimant's Organogram and (7). Exh. C7 - Goal Setting and KRA Doc. Exh. C1 contains clause 23 which forms the core of this case. The Clause states thus - ''You will not accept any job in the same or similar field for a period of 5 years after termination of contract. Further more if you do chose to work in Nigeria after 5 years from the date of expiration of this contract you hereby agree and voluntary (sic) accept not to work for competing companies i.e companies in beverages, soft drinks, and table water industry''. That exhibit, apart from merely stating the position of the Defendant as Chief Operating Officer, does not provide the job description or schedule of duties of the Defendant while working with the Claimant. Secondly, none of the exhibits tendered by the Claimant contained information of the schedule of duties of the Defendant. Exh. C2 on the other hand contained inter alia a summary of the report and presentation on five year plan by the Defendant, then as the COO of the Claimant. Again, did the Defendant prepare the report which summary he gave? Did he also prepare five year plan which presentation he made to the Board of Directors of the Claimant as exemplified by Exh.C2? Answers to these questions are not available to the Court as they were not addressed. Thirdly, what is the schedule of duties of the Defendant in his new employment? In paragraph 13 of its Statement of Facts, Claimant averred that - ''... the nature of the duties of the Defendant as New Product Development Director of Nigerian Bottling Company Limited include but not limited to the growth, profitability strategy and future plans of Nigerian Bottling Company Limited''. The Defendant in paragraph 12(vii) of his witness statement on oath had stated thus - ''My designation with NBC is 'new Business Development Manager' where I am expected to use my personal skills and intellect to create new and fresh products/business that do not exist presently in NBC and in the beverage industry in Nigeria. Whereas, my job description in the Claimant's company was to sell and market the Claimant's existing products''. Again there is no cogent, credible and admissible evidence presented in proof of the assertion by either the Claimant or the Defendant respecting the job description of the Defendant while working with the Claimant and in his present employment. I dare ask; what were the duties for which the Claimant employed the Defendant as the Chief Operating Officer? Again as the New Business Development Manager with Nigerian Bottling Company what are the duties or responsibilities attached to that office? Of a truth, learned silk on either side have sought to provide some explanation in relation to this in their final written addresses. However the law is trite that no matter how beautifully prepared and argued, final written addresses of Counsel are not and do not amount to core evidence and neither can it replace same or even fill the gap. See Okon v. Ita (2010) LPELR-CA/C/08/09 & Adekanmbi v. Jangbon (2007)All FWLR (Pt. 383) 152 at 163. The designation or title of the Defendant in his present employment differs significantly from the position he occupied while with the Claimant. Were the titles or designations to be the same or were the schedule of duties and responsibilities of the Defendant be the same in both the Claimant as well as with the Nigerian Bottling Company such information would have assisted the Court in finding in favour of the Claimant on the point being considered. See Sasegbon's Laws of Nigeria (An Encyclopedia of Nigerian Law and Practice) Vol. 9 p. 307 at para. 808. See also CFAO v. George Luba (1918)3 NLR 67 at 76. In CFAO v. Luba (supra) commenting on a point as the one under consideration Dunlop Ag. J had said - ''I agree that this appeal should be dismissed. The contract in restraint of trade is prima facie void unless it can be proved to be reasonable. The onus of proving its reasonableness is on the plaintiffs and as a preliminary they should have shown that the defendant has access to the trade secrets of the firm as well as that he had put himself in a position to disclose these trade secrets to a rival firm. There is no evidence even of what his duties were nor are they shown by the agreement. It may be that the plaintiffs could have adduced such evidence as I have indicated, and if they had done so, I should have been disposed to come to the conclusion that the contract was a reasonable one for I am of the opinion that the terms of it are severable but the plaintiffs have failed to adduce such evidence and I agree that such failure is fatal to their contention''. The Courts in general, and this Court in particular, can only act on the basis of hard core evidence and must remove itself from the realms of speculations. See Otunba Samuel v. Mr. Osulade (2010) LPELR-CA/I/196/07. & Olalomi Industries Limited v. NIDB Limited (2009)16 NWLR (Pt. 1167) 266 at 303-304. I need to add also that there is no evidence before me on the qualification of the Defendant which may perhaps provide his schedule of duties both before and presently. The law is trite and indeed long standing that averments in pleadings do not amount to evidence upon which the Court can rely. See Iliyasu & Anor. Adamu & Ors. (2008) LPELR-4304(CA) & Chief Titus Anamasonye Onwugbelu v. Mr. Ejiofor Ezebuo & Ors (2013) LPELR-20401(CA). Now, the law is settled that even at Common Law a party has the right to protect a legitimate interest. What then are the interests which the Claimant seeks to protect? It was part of the argument of the Claimant that the Defendant had unrestricted access to all the trade secrets, future plans as well as sensitive and confidential information of the Claimant. Safe for the averments in pleadings of the Claimant, the only available exhibits tendered respecting this assertion is Exh. C2. I read the whole of 2-page exhibit. I paid a particular attention to the content of paragraphs 1.2.2.1 and 1.2.2.2. I found nothing in those paragraphs as trade secrets or confidential information of the Claimant. It is important to add that there were 7 persons at the said meeting of 7/4/11 which Exh. C2 reported and 2 of them were just in attendance at the meeting also. I find no enforceable legitimate interest proved by the Claimant in this case. Notwithstanding the finding and the holding above, even if the existence of any legitimate interest had been found in favour of the Claimant, is the restraint in the instant case reasonable? A restraint as in the instant case will be held reasonable when considered against the interest of the parties on the one hand and interest of the larger public on the other hand. In other words, the reasonability test must satisfy three main conditions, viz- (a) the interest of the Claimant; (b) the interest of the Defendant and (c) the interest of the public. Within the context of the Judgment of Lord Macnaughten in Nordenfelt v. Maxim, Nordenfelt Guns and Ammunitions Co. these three conditions would seem imperative. But see the decision of the Supreme Court in Koumoulis v. Leventis Motors (1973) All NLR 789. I have already found and held in this Judgment that the Claimant did not prove the existence of any enforceable legitimate interest which the Court may find in its favour. Respecting the Defendant, it is suffice for the Court to hold that his interest is to continue to be employable, employed and able to put his skill to optimal use in contributing to his immediate environment. In other words an employee has a continued interest in ability to continue to earn a living. In some jurisdictions, individual right to work, apart from its international dimension, has been raised to the level of right to life. This should be understood against the backdrop of some of the Holy Books to the effect that he who does not work should not eat. In Section 254C(1)(f), Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration Act, 2010, this Court is conferred with the exercise of jurisdiction to the exclusion of any other Court in civil causes and matters relating to or connected with unfair labour practice or international best practice in labour, employment and industrial relation matters. On 15/7/15, the attention of learned Counsel in this case was drawn to this and were directed to include address in relation to same in their final written addresses. The International Covenant on Economic, Social and Cultural Rights (G.A. Res. 21/2000A, G.A.O.R, 21st Session, Supp., p.49, UN Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976) recognised the right to work as imperative to the enjoyment of not just economic, social and cultural rights but also civil and political rights. Under Article 6(1) of the Covenant, the right to work includes ''the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts...''. See Rebecca M.M. Wallace & Kenneth Dale-Risk; International Human Rights, Text and Materials, Sweet & Maxwell, 2001, 625. It thus appears to me to be trite to hold and I so do that Clause 23 of Exh. C1 is a violation of the International Covenant on Economic, Social and Cultural Rights which this Court is empowered to take cognizance of. The imperative of work is necessarily tied to the salaries and allowances payable. For, the essence of taking up an employment is to enable an individual meet financial obligation. In Ayo Mautin Dansu v. Mainstreet Bank Microfinance Bank Limited & Assistant Inspector General of Police Suit No: NICN/LA/342/2012 delivered on 27/5/14 and commenting on the centrality of salary of a worker to his life, I had said thus - ''An employee offers his services to an employer on the basis of satisfaction with the conditions of his employment. One of such conditions, no doubt, is the remunerations attached to him. It is on the basis of the salary and allowances attaching that he plans his life and the lives of those around him to whom he has responsibility''. Did the Claimant suffer any loss by the alleged breach of contract of employment by the Defendant? It was part of the case for the Claimant that not too long after the Defendant joined the employ of Nigerian Bottling Company, the latter reintroduced its Fanta Apple that was hitherto rested and that it has suffered some loss or damage thereby. This was contained in its pleadings. CW1 also reaffirmed same under cross examination. Aside from this, there is nothing before the Court on the nature of the loss suffered. There is no evidence of reduction in the sales of the product of the Claimant after the Defendant joined NBC and the reintroduction of the earlier on rested product of the Nigerian Bottling Company the new employer of the Defendant. Besides, the said Fanta Apple of the NBC was only reintroduced. It was not argued that Fanta Apple was a new product introduced when the Defendant joined the NBC. I find no evidence of reduction in the sales of the products of the Claimant as a result of Defendant joining the services of the Nigerian Bottling Company. I also find no evidence of loss of revenue as a consequence of the alleged breach of Clause 23 of the contract of employment between the Claimant and the Defendant. The absence of either of these further support the position of this Court on the unreasonable nature of the said restraining clause. Respecting the interest of the public it is sufficient to simply state that it is not in the interest of the public for a citizen or resident of a country to be disallowed from legitimate use of his skill and being gainfully employed. Consequences of such are better imagined. Quite apart from the social vices and criminal tendencies that may result from that, the State will no doubt be denied of revenues from taxation on incomes which will come to individuals concerned. I have no hesitation in holding that there is no ground to hold the Clause 23 of Exh. C1 reasonable. I find it to be unreasonable and contrary to public policy. A contract that is contrary to public policy cannot find support for its enforcement through the judicial process. When a contract is held to be contrary to public policy, it means it negatively affects the very foundation of the public. The attitude of the Courts to such contract is reflected in the Judgment of Dongbam-Memsen, J.C.A in Dr. Shirish Tanksale v. Rubee Medical Centre Limited (2013) LPELR-21445(CA). In that case His lordship, referring to the case of Nnadozie v. Mbabwu (2008) ALL FWLR (Pt. 405) 1613 at 1639 held thus - "A contract or an agreement rooted in illegality must not be pleaded and if pleaded, it cannot be enforced by any court of law. An agreement is illegal if the consideration or the promise involves doing something illegal or contrary to public policy. In the instant case, the plaintiff's evidence of proclamation of ownership of the land by an oracle was wrong in law and the trial court erred to have given it any legal recognition which was rightly set aside on appeal" See also Onyiuke v. Okeke (1976) 10 NSCC 146, Onwuchekwa v. N.D.I.C (2002) FWLR (Pt. 101) 1615. (2002) 5 NWLR (Pt. 760) 371, Olaniyan v. Aroyechun (1991) 5 NWLR (Pt.194) 652 @ 656. Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505 @ 535.'' The success or otherwise of the case of the Claimant rests on its ability to prove the reasonableness of the Clause 23 of Exh. D1 and that same is not contrary to public policy. That burden is not discharged. I find and hold that the said restraining clause is unreasonable, contrary to public policy and therefore an illegal contract which the Court will not and cannot enforce. Issue 1 is thus resolved against the Claimant. Issue 2 is whether the Defendant is entitled to any of its counter claims. The Defendant sought 3 main counter claims as follows - i. A Declaration that the aforementioned Clause 23 in the Counterclaimant’s contract of employment with the Claimant restraining the Counterclaimant in perpetuity from seeking employment with companies in the same or similar business with the Claimant in Nigeria after his termination of employment with the Claimant, without any justifiable reasons is unreasonable, unjustifiable, oppressive and against public policy and therefore null and void. ii. A Declaration that the said Clause 23 of the contract of employment between the Counterclaimant and the Claimant restraining the Counterclaimant in perpetuity from accepting any job in the same or similar field for a period of 5 (five) years after termination of contract, and thereafter, restraining the Counterclaimant from working for competing companies in Nigeria i.e. companies in beverages, soft drinks, and table water industry is unreasonable, unjustifiable excessive and against public policy and therefore null and void. iii. An order striking out the said Clause 23 in the contract of employment between the Counter-claimant and the Claimant for being unreasonable, oppressive, unjustifiable, excessive and against public policy and also null and void. This Court has held in this Judgment that Clause 23 of Exh. C1 is unreasonable, contrary to public policy and hence unenforceable through judicial process as the Court will not lend its weight to an illegality. See the Judgment of Dongbam-Memsen, J.C.A in Dr. Shirish Tanksale v. Rubee Medical Centre Limited (Supra) cited above. Be that as it may, the first and second counterclaims are accordingly granted. The third counter claim is for ''An order striking out the said Clause 23 in the contract of employment between the Counter-claimant and the Claimant for being unreasonable, oppressive, unjustifiable, excessive and against public policy and also null and void''. In view of the findings and holding in this case, an application for striking out of Clause 23 becomes irrelevant and rather unnecessary. The Counter claimant was a party to an illegal contract. By this suit, the Claimant sought judicial enforcement of the said illegal contract. To grant the third counter claim as sought will amount to this Court lending its weight to same and giving it some judicial recognition. This Court has held that the clause is unreasonable, contrary to public policy and unenforceable and by the decision of the Court of Appeal in Tanksale's case it is also illegal. If it is thus illegal as held, there is certainly nothing to strike out from a contract already held to be illegal. An illegal contract cannot confer any obligation and neither can it confer any benefit. An illegal contract is as good as not having existed. It is void and I so hold that in the contemplation of the law, the said contract containing Clause 23 does not exist. The third counter claim is thus refused and dismissed. Finally and for the avoidance of doubt and for all the reasons as contained in this Judgment, 1. The claims of the Claimant are refused and dismissed accordingly not having been proved. 2. I declare that the aforementioned Clause 23 in Exh. C1 restraining the Defendant/Counterclaimant in perpetuity from seeking employment with companies in the same or similar business with the Claimant in Nigeria after his termination of employment with the Claimant, without any justifiable reasons is unreasonable, unjustifiable, oppressive and against public policy and therefore null and void. 3. I declare that the said Clause 23 of Exh. C1 restraining the Defendant/Counterclaimant in perpetuity from accepting any job in the same or similar field for a period of 5 (five) years after termination of contract, and thereafter, restraining the Counterclaimant from working for competing companies in Nigeria i.e. companies in beverages, soft drinks, and table water industry is unreasonable, unjustifiable, excessive and against public policy and therefore null and void. 4. An order striking out the said Clause 23 in the contract of employment between the Counter-claimant and the Claimant for being unreasonable, oppressive, unjustifiable, excessive and against public policy and also null and void is refused and dismissed for there being no basis for same Judgment is entered accordingly. ___________________ Hon. Justice J. D. Peters Presiding Judge