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REPRESENTATION:- Segun Ololade with him is Tinuade Adelekun (Miss), Lekan Ayoola for the claimant J.T Oguniyi for the defendant JUDGMENT A complaint dated 23rd of April, 2015 was filed by the claimant against defendant praying the following reliefs: 1. A declaration that the 1st defendant cannot take up employment with the 2nd defendant or with any other company with similar business or undertaking with the claimant for a period of 2 years stipulated under clause 25 of the contract of employment between the claimant and the 1st defendant. 2. An order of injunction restraining the 1st defendant from continuing to take up employment with the 2nd defendant or with any other company with similar business or undertakings with the claimant for a period of 2 years stipulated under clause 25 of the contract of employment between the claimant and the 1st defendant. 3. An order of injunction restraining the 2nd defendant from further employing or further employing the 1st defendant in its employment until the expiration of 2 years of the restrictive covenant contained in clause 25 of the 1st defendant’s contract of employment with the claimant. 4. Special damages against the 1st and 2nd defendants jointly and severally in the sum N362, 726,430.70K (Three Hundred Sixty two Million, Seven Hundred and Twenty Six Thousand, Four Hundred and Thirty Naira, Seventy Kobo). 5. Cost of this suit in the sum of N10,000,000.00 against the defendants It is the claimant’s case that it and the 2nd defendant are Nigerian companies. That on the 23rd of July 2007, the 1st defendant was employed by the claimant as the chief digital artwork creator. That the 1st defendant also entered into a contract of employment with the claimant which contract is renewed every year under the same terms and conditions. Claimant continued that in line with the contract of employment between the 1st defendant and the claimant, the 1st defendant and his wife were granted residence permit. It went on that by virtue of the 1st defendant position in the claimant’s company he was a custodian of all the claimant’s customers profile, artwork and designs and many other confidential information and trade secret which constitute the life wire of the claimant’s business. Claimant posited that clause 25 of the contract of employment between the claimant and the 1st defendant provides for a restrictive covenant to the effect that for the period of two years immediately following the termination for whatever reason of their agreement , the employee agrees not to work in the same or similar capacity in any company whose business is same or similar to that of the employer in Nigeria except with the prior written permission of the employer to do so and that such permission will not be unreasonably withheld though it may be withheld if the employee intends to work in the same or similar business to that carried out by the defendant company. That sometime in September 2014, the 1st Defendant applied for his leave to India and same was approved by the Management. That after annual leave was granted and the 1st defendant did not resume work on the 3rd November, 2014 all efforts made by the claimant to reach him proved abortive. The claimant states further that the1st defendant’s failure to resume back to work resulted in a slow flow of operation of the claimant. That it made attempts to retrieve documents and information contained in the two official computers assigned to him but could not. That in the course of retrieving those documents and information from the two official computer systems which include the ‘OFFICE OUTLOOK’ on the claimant’s first computer and on the 2nd computer where the technical artwork, designs and drawings of third party are stored discovered in the process that the 1st defendant had deleted and copied all information contained in the first computer and further pass worded the second computer and thereby preventing the claimant from having access to information and documents needed for the manufacturing of consumer goods. The claimant further pleaded that when all efforts to reach the 1st defendant proved abortive, it was later discovered that the 1st defendant had taken up employment with the 2nd defendant and was given the same designation he had with the claimant contrary to ‘clause 25’ of the contract of employment between the claimant and the 1st defendant. The claimant stressed that the 2nd defendant is a company with similar undertakings with the claimant. That the claimant had a mutual agreement with the 2nd defendant not to poach any staff whether local or expatriate from each other unless with an approved ‘No objection Consent’ letter. That the claimant upon discovering that the 1st defendant had taken up employment with the 2nddefendant, wrote a letter dated 2nd December 2014 to inform the 2nd defendant that the 1st defendant is still a staff of the claimant and also informing the 2nd defendant that any referral for the 1st defendant or any of the claimant’s employee into the 2nd defendant should not be accepted or granted without any approved, ‘No objection consent’ letter from the claimant. The claimant contends that the 2nd defendant has induced the breach of clause 25 of the contract of employment between the claimant and the 1st defendant. Claimant further states that the 1st defendant used the information copied from it's company for the 2nd defendant and that one claimant’s customers(Niger Biscuit) approached the claimant and informed the claimant that the 2nd defendant tendered a product assigned to the claimant by the customer. That the claimant wrote a petition dated 28th of January, 2015 against the 1stdefendant to Commissioner of Police Abeokuta. That on the 20th of February, 2015, the 1st defendant came to the office of the claimant to restore all documents deleted and removed the password on the 2nd computer. That by breach of clause 25 the 2nddefendant has profited and is still profiting by the carting away vital information belonging to the claimant by the 1st defendant to the detriment of the claimant who has suffered untold loss and damages. PARTICULARS OF DAMAGES. The claimant’s particulars of damages are that the Claimant’s monthly sales dropped drastically between December 2014 and February 2015 and that the drop in the Claimant’s monthly sales was as a result of the action of the 1st defendant’s hoarding of information and documents belonging to the claimant for the manufacturing of the claimant’s customers good, by deleting, copying the password information contained in the claimants computer that was assigned to the 1st defendant to carry out his official duties and thus prevented the claimant from accessing information and documents needed for manufacturing customers goods. The amount lost by the claimant due to the drop in sales in the months between December 2014 and February 2015 as a result of the 1stdefendant’s action are N82,747,375.48k, N103,482,418.18 and N176,496,637.04k respectively which were the difference in the expected sales and the actual figure. Claimant during trial testified through one Davies Onifade, Human Resources Manager who tendered documents which were admitted and marked exhibits D0- D011. He stated under cross examination that the ledgers which the defendants demanded for were not in his possession. He stated that the period of 2007 and 2014 the claimant carried out sales which were recorded and some ledgers were misplaced. That the claimant got to know that it sales dropped through it sales register. That the difference between a sales register and a ledger is that the former contains details while the latter is a summary. He stated that the 1st defendant joined its employment in 2007 under a contract that expires on the 31/07/13. That the 1st defendant was issued with a pay slip vide exhibit D02 and he does not know why the 1st defendant was short paid. He admitted knowing one Mr. Hassan. He continued that the claimant petitioned the 1st defendant because he left the claimant’s company. That the claimant relied on Exhibit D05 to state that there was a mutual agreement between the claimant and the 2nd defendant. That by exhibit D02 it states that the 1st defendant would not work in another company as a Chief Digital Artwork Creator in the production department. That they are not obliged to take care of the 1st defendant for the period of two years except to pay him his final entitlement. That after 31/07/13, the contract was renewed. He stated that the 1st defendant pass worded the computer and when the issue got to the Police it was discovered that the 2nd defendant was using the trade secret of the claimant. That the 1st defendant gave the pass word to the claimant’s I.T Operator. He denied that the CCTV footage is a lie and also denied that the 2nd defendant was not informed of the restrictive covenant of the defendant. It is the defendants case on the other hand that the claimant employed the 1st defendant by virtue of a letter dated 23rd July,2007 for an initial 6 months and thereafter entered into one year contract of employment with the claimant by virtue of contract of employment dated 1st of August 2012 which expired on the 31st of July 2013. That upon the expiration of the contract of employment with the claimant on the 31st of July 2013, the 1st defendant did not renew same and also tendered resignation letter to the claimant through an e-mail dated 26thof November, 2014. informing the claimant that he got an employment from the 2nd defendant while in India and he came back to Nigeria vide the employment letter issued to him by the 2nd defendant and based on the STR( subject to resignation) visa entry and residence permit and Quota of the 2nd defendant. The 1st defendant also went further to state that he did not come back to Nigeria either on the return ticket of the claimant nor based on any working permit or residence permit of the claimant as there was communication between him and his immediate boss right from the time he departed Nigeria till the time he sent his resignation. That there was no confidential information or trade secrets in his possession during the time he was in the employ of the claimant and or after he left the employment. He stated further that in the course of his employment with the claimant certain salary and allowances totaling 6000 USD (#960,000) were due for payment to him by the Claimant but it failed to pay despite repeated demands. That upon the expiration of the contract of employment, the usual and normal practice is for him to sign a new contract before proceeding to India on annual vacation, but because the Claimant failed to pay the due salary and allowances, the 1st Defendant refused to sign a new contract. Contrary to the claimant’s averment, he traversed that he did not delete any information in the 1st Computer which was solely used for e-mail communication. He informed the Police at the station that whatever reason the person that deleted the communication in the OUTLOOK wanted to achieve such motive will not succeed because he has a backup which he is willing and ready to reinstall for the Claimant. That he did not password the 2nd computer as alleged, as most of the times, his subordinates in the course of their duties, use the APPLE computer meant for the graphic and artist woks design and they all have information with them of the normal log into the Apple Computer without the need to seek the assistance of the 1st Defendant. The 1st defendant denies that his position and appointment at the claimant's company is the same as the he occupies at the 2nd Defendant's company. He stressed that while in the employ of the claimant, he was a Chief Digital Artwork Creator, but presently he is the Quality Assurance Manager. That he has not in any way breached clause 25 of the expired contract of employment between the Claimant and the 1st Defendant. That there is no agreement between the 2nd defendant and the claimant with regards to the issue of poaching of local or expatriate staff as it has never been its practice to poach any staff of any company in competitive business with her as it ensures that such expatriate or local is not under any current employment with any company and in the case of an expatriate, the expatriate must have gone back to his or her country of national and must have been employed and brought into Nigeria on the expatriate quota of the 2nd Defendant with all the immigration procedures met. That the 2nd defendant did not induce the 1st defendant to breach clause 25 of his contract of employment with the claimant. That it is not a party to the expired contract of employment dated 1st of August 2012 between the 1st Defendant and the Claimant and not aware of any legal or illegal restrictive covenant in the said contract of employment. That the 1st defendant has never used any secret information copied from the claimant's data for the work and or benefit of the 2nd Defendant. He averred that the purported drop in the monthly sales of the Claimant when the sales in the month of August 2014 is compared to the sales in the months of December, 2014, January and February 2015 was neither occasioned by the 1st Defendant hoarding information and documents. Defendants pleaded that the claim of the Claimant is baseless, repressive and contrary to public policy and should be dismissed with substantial cost. By a counterclaim, the 1st defendants averred that in August, 2012 his salary was increased by the Claimant with additional 500 USD (#80,000). That it adopted a method of paying the 1250 USD (#200,000) into his account monthly while the increment of 500 USD (#80,000) was often paid to him in cash every month. That his salaries were paid regularly until September, 2013. That the Claimant only paid the usual 1250 USD (#200,000) into his account but did not pay the additional 500 USD (#80,000) cash to the 1st Defendant from the month of October 2013 to October 2014. That by an e-mail correspondence between the 1st Defendant and his boss in person of Mr. Hassan, the Claimant admitted the indebtedness. Whereof the 1st and 2nd Defendants counter-claim against the Claimant as follows: i. A declaration that the purported restriction contained in the clause 25 of the expired contract of employment dated 1st of August, 2012 between the Claimant and the 1st Defendant is a restraint of trade and same is unreasonable, oppressive, contrary to public policy, void and as such unenforceable. ii. A declaration that the 2nd Defendant not being a party to the employment contract dated 1st of August, 2012 between the Claimant and the 1st Defendant cannot be bound by the terms of the said contract. iii. A declaration that the 2nd Defendant by employing the 1st Defendant after following due process and meting all the Immigration requirements has not violated the terms of the contract of employment dated 1st of August 2012. iv. The sum of #960,000 against the claimant being the balance of unpaid salary or allowances of the 1st defendant by the Claimant. v. The sum of #250 Million against the Claimant being damages for the inconveniences and embarrassment this suit has occasioned the 1st and 2nd Defendants. vi. The sum of #10 Million against the Claimant being cost of defending this suit by the 1st and 2nd Defendants. The defendants during trial testified through DW1, who is the 1st defendant and DW2. They tendered documents which were admitted and marked as exhibit GK1-GK6. DW1 testified that he was assigned two computers by the claimant. That he communicates officially with customers and the print managers. He admitted to having a backup but states that it is for the safety of document in case the computer crashes. That he resigned on the 26th of November, 2014. He admitted to have gotten his employment with the 2nd defendant on the 26th of October, 2014 before he resigned his appoint with the claimant. That he travelled on the 2nd of October, 2014 and before he travelled back to India, it was the claimant’s work permit he was working with. That by exhibit DO2 he was supposed to give six months notice to the claimant. He admitted that his resignation of 26th of November, 2014 did not conform with exhibit DO2. He stated that the restrictive covenant is oppressive and he is not working in similar position. He admitted to be bound by Exhibit D02 and clause 12 which provides that he is not to work in any company for one year. On re-examination 1st defendant posited that at the point he resigned from the claimant’s employment exhibit DO2 ceased to be binding on him. That before he travelled the claimant tried to get him sign another document with it but it refused and thus failed to pay him his dues. DW2 testified that exhibit DO2 has expired and thus should not be bound by any terms therein. That he understands clause 1-32 of exhibit DO2. That by the letter of employment dated 30/12/13 issued by the 2nd defendant, the 1st defendant is a Production Manager. That he was not aware of any agreement between one Ajai Musadu, the group Managing Director of Sona group and the 1st defendant representing the 2nd defendant. He stated that he wouldn’t know if Exhibit DO5 is an agreement between the claimant and 2nd defendant represented by Ajai Musadu. The claimant in reply to the defendants’ statement of defence and counterclaim averred that the 1st defendant was in its employment up till the month of October, 2014. That the residence permit granted to the 1st defendant was still in operation when he travelled back to India and the permit expired on the 21st of March, 2015. That the 1st defendant applied for leave to travel to his country and same was granted to him. that the 1st defendant had already accepted the employment of the 2nd defendant before the purported resignation from the claimant’s employment vide an email dated 26th November, 2014 which was not accepted by the claimant because it is contrary to clause 26 of the terms of employment that six calendar months notice must be given to terminate the contract between the parties.That all the salary and allowances of the 1st defendant were paid to the 1st defendant and it is not in any way owe the 1st defendant the sum of 6000USD. The claimant contends that the 1st defendant cannot have a personal backup of the outlook of the claimant as it amount to an infringement of the claimant’s trade secret in and the 1st defendant has been using same to divulge information to the 2nd defendant. That both the Chief Digital Artwork Creator and production manager are two similar positions. That there was a mutual agreement between the claimant and the 2nd defendant not to poach local or expatriate staff except with a “No Objection Consent Letter” but it breached the agreement. That clause 25 of the terms of contract is a trade restraint of trade acceptable and enforceable in court. In defence to counterclaim claimant states that whatever correspondence exchanged by the 1st defendant and the said Mr. Hassan has nothing to do with the claimant/ defendant to counterclaim. That it is not indebted to the 1st defendant in the sum of 6000USD as the 1st defendant salary and allowances were paid. That the counterclaimant’s claim is misconceived and frivolous and it urged the court to dismiss same with substantial cost. The defendants in accordance with the rules of this court filed their joint final written address on the 29th of July, 2015 by posing a sole issue for the court’s determination viz; In view of the evidence led in this case, whether the Claimant is entitled to the reliefs sought as against the reliefs sought by the 1st and 2nd Defendants. On this issue, learned defence counsel submitted that it is trite that the standard of proof required in proving this suit is on a balance of probabilities of evidence. He cited the case of ONWUAMA V. EZEKOLI [2002] 4 MJSC 85 AT 89 RATIO 7. He states further that the averments of the claimant, reply to the statement of defence and defence to counter-claim as well as the written statement on oath filed in this case, testimony of the CW1 together with Exhibit D02 which is the expired contract of employment dated 1st of August, 2012 especially at clause 25 upon which the Claimant's case is premised is illegal and does not prove or sustain the case of the Claimant on a balance of probabilities that could entitle the claimant to the relief sought. He posited that clause 25 of Exhibit 002 reads thus; “For the period of two years immediately following the termination for whatever reason of this agreement, the employee agrees not to work in the same or similar capacity in any company whose business is the same or similar to that of the employer in Nigeria except with the prior written permission of the employer to do so, which permission will not be unreasonably withheld though it will normally be withheld if the employee intends to work in the same or similar business to that carried out by the company", He stated that the import of clause 25 is that the 1stdefendant who is an expert in his field of trade should not take up employment of his choice at a place where his skill will be required for a period of 2 years after leaving the employment of the Claimant. Counsel submitted that this type of contract is illegal, contrary to public policy and unenforceable under the law because it amounts to violation of Fundamental Human Right of the 1stDefendant. He cited Article 15 of the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act which provides that African workers shall be entitled to work under equitable and favourable conditions. He posited that in the unlikelihood that the court holds otherwise, submitted that the orders sought by the Claimant can still not be granted by the Court because the claimant is in flagrant breach of the terms and condition of Exhibit D02 at clause 5 and exhibit DO10 which is the pay slip of monthly salary of the 1st defendant. Clause 5 of Exhibit D02 which states: "During this probationary term and commencing from the date which the Employee having arrived in Nigeria, takes up the appointment, the company shall pay to the Employee a salary of #280, 000 (Two hundred and Eighty Thousand Naira) net per calendar months, payable in arrears on the last working days of each month. The employee will be allowed to remit outside the country, monies as per the governing laws of Nigeria” That via exhibit DO10,the monthly payment made by the Claimant to the 1st Defendant as reflected in Exhibit DO10 is the sum of N200,000 after the deduction of N38,000 tax. That it follows that the Claimant is short changing, or short paying the 1st Defendant to the tune of #42,000 (Forty Two Thousand Naira) per month which is in breach of terms and condition stipulated in Exhibit D02 and it is the law that a party who is in breach of the term of the contract cannot benefit from such a breach. He cited the case of AGBAREH VS. MIMRA [2008] 33 9PT 2) NSCQR 970 AT P. 1017.Counsel urged the court to hold that the Claimant in this case cannot enforce the contract agreement against the Defendant in this case and it will not be equitable to allow the claimant benefit or profit from such wrong. Counsel posited that Claimants claim for special damages under the breach of contract is incorrect and misleading and as such misconceived. That apart from the damages naturally resulting from the breach, no other form of general or special damages can be contemplated. He cited the case of O. U. DAVIDSON GROUP CONST. NIG. LTD VS BEES ELECT.CO. LTD I ANOR [2001] 9 NWLR (PT 719) 507.Continuing, it submitted that the claimant has failed to substantiate it claim for damages as a careful perusal of Exhibit D09- the sales ledger does not show any meaningful or decrease in the sales of the Claimant. Also, the Claimant produced the sales record of Aug 2014, Dec. 2014, Jan. 2015 and Feb. 2015 but kept away the sales record of Sept. 2014 Oct. 2014 and November 2014 which are crucial period to make buying and selling for the end of the year period. It urged the court to hold so. Counsel submitted further that the claimant cannot enforce Exhibit D02 (Contract of Employment dated 1st of August 2012) against the 2nd defendant who is not a party to the contract as it is trite law that a person who is not a party to a contract cannot be held liable. He relied on the case of ALADE VS. ALIC NIG.LTD [2011] 46 (PT 2) NSCQR 927 AT P 941.He urged the court to so hold. Counsel with respect to the counter claim posited that they have proved their counterclaim and are thus entitled to same. That they undoubtedly gave uncontroverted and undiscredited evidence to establish that he was an employee of the Claimant as per Exhibit DO2. That the said contract of Employment in Exhibit DO2 expired on the 31stof July 2013 and there was no renewal of the contract. That it is in evidence that the 1st defendant’s salary as per Exhibit DOO2 was #280,000 per month and the Claimant has not fully paid the salary and payments due to the 1st Defendant as reflected in Exhibit DO10. That the Print Manager of the Claimant one Mr. Hassan through the e-mail correspondence Exhibit of DK2 admitted that the Claimant was owing the 1st Defendant and promised that the payment will be made when the 1st Defendant returned to the employment of the Claimant. Also they substantiated that the contract is unenforceable because same is illegal and contrary to public policy. He urged the court to hold that the Defendants are entitled to damages in this action. The claimant on the 25th of August, 2015 filed its final written address, it distilled two issues for the court’s determination; 1. Whether the Claimant based on the evidences before this Honourable Court has proved its case against the Defendants. 2. Whether the Defendants have proved their counterclaim against the Claimant. On issue one, counsel submitted that based on the evidence before this court the claimant has proved its case against the 1stand 2nd Defendants via the documentary evidences that is Exhibit D02 (contract of employment dated 1stAugust 2012) especially at clause 25 before the Court. It is trite law that he who asserts must prove. He cited the case of ADAMS V. L.S.D.P.C. [2000] 5 NWLR (PT 656) 291 AT 296 RATIO 12. He stated that clause 25 of the contract of employment is a restrictive covenant and this type of restraint is acceptable by the courts and is enforceable to protect and not to prevent competition. He cited the case of NISSAN (NIG) LTD V. YOGANATHAN [2010] 4 NWLR (PT 1183) 135.He stated that a careful perusal of Exhibit D02 shows that though the contract was entered into on 1st August 2012 which ordinarily ought to expire on 31st July 2013 but going by the provision of clause 32 of Exhibit D02 the terms and conditions in the contract of employment is still in force. Clause 32 provides that: "Other than Section 5, all other sections of this contract, from Section1 to 32 shall be deemed to be continuous and remain in place as a contract of employment until such time the employee leaves the employment of the company for whatsoever or the company gives a written notice of a change of conditions of service". He submitted further that the 1st defendant was still working in the employment of the Claimant on the same terms and conditions of Exhibit D02 until the 1st Defendant purportedly tendered his resignation via e-mail sent on the 26th November 2014 and the said resignation did not conform with clause 26 of Exhibit D02. Counsel also submitted that clause 25 of Exhibit D02 is not an illegal contract and it has not in any way violated the fundamental human rights of the 1st Defendant. That clause 25 of Exhibit D02 is not saying that the 1st Defendant does not have the right to work for 2 years rather the clause is saying that the 1stDefendant can work in any company but cannot work in a company with the same business with the Claimant except with the prior written permission of the Claimant to do so. He stated that the 1st defendant breached clause 25, when he took up employment with the 2nd Defendant a month before he resigned from the Claimant's company. Counsel urged the court to so hold. Counsel posited that the defendants’ in their final written address contended that the 2nd Defendant is not a party to the contract of employment between the Claimant and the 1st Defendant (Exhibit D02) hence the Claimant cannot enforce Exhibit D02 against the Defendant. He stated in answer to that contention, that it is well settled that as a general rule, a contract cannot be enforce by or against a person who is not a party to it. However, there are exceptions to the doctrine of privity of contract that have developed over the years these are; (a) Covenant in agreements, especially those concerning land, (b) Agency, and (c) Assignment. That the 2nd defendant knowing that the 1st defendant was the claimant’s employee induced and facilitated the breach of contract between the contracting parties. That going by clause 5, 6 and 32 of Exhibit DO2, the claimant is not in flagrant breach of the terms and conditions of Exhibit 002 and also the 1st defendant did not complain or plead that the Claimant short paid him. That the 1st defendant by paragraphs 56, 57, 58 and 59 intends to mislead the court as the real position is that the total salary of the 1st defendant is N280,000 wherein the claimant pays N200,000 into his account and the balance of N80,000 paid to him in cash. That it stopped paying the sum of N80, 000 in October 2013. That when the 1st Defendant went on leave the salary paid to him is N238, 000 and not N23O,OOOas alleged by the 1stDefendant. Counsel urged the Court to so hold. Counsel submitted that its claim for damages under breach of contract is proper and as such entitled to same as it has established that the 1st Defendant is liable for the breach of Exhibit D02 and the 2nd Defendant is liable for inducing the 1stDefendant to breach Exhibit D02. That established that the 1st Defendant deleted and copied all the information contained in one of the computer assigned to him and he further pass worded the 2ndcomputer, hence restrained the Claimant from information and documents needed for the manufacturing of the Claimant's customers goods and the1st Defendant under cross examination admitted that he has personal backup of confidential information on the computer assigned to him by the Claimant which from all indication shows that he left the Claimant's employment with this backup and did not delete the Claimant's confidential information contained in his personal backup. Counsel urged the court to hold that it is entitled to the award of damages. On issue two, counsel posited that Defendants has not proved its counterclaim against it as they have failed to prove that they are so entitled. Also these reliefs cannot be granted by this court, because the contract of employment dated 1st of August 2013 upon which the Defendants' counterclaim is based is unknown to the court and there is no evidence of such before this Court rather the evidence before this court is a contract of employment dated 1st August 2012 (Exhibit D02) and this court is not a father Christmas. That in the unlikely event that court holds otherwise, the Defendants' counterclaim will still not be granted by this court because the Defendants have failed to prove their counterclaim against the Claimant. That it is the law that he who asserts must prove and the burden is on the Plaintiff to show that he is entitled to the relief sought from the court. He cited the case of WEMA BANK PLC V. OSILARU [2008] 10 NWLR (PT 1094) 150 AT 160. He stated that 1st Defendant alleged that the Claimant is indebted to him in the sum of 6000 USD (N960, 000) being the balance of unpaid salary of the 500 USD (N80,000) from October 2013 to October 2014 but did not tender any evidence before the court to establish the fact that the Claimant is indebted to it to the tune of 6000 USD (N960,000). Continuing he posited that if the Claimant refused to pay the 1st Defendant the sum of 500 USD (N80,000) from October 2013 to October 2014, the total sum should be N1,040,000 and not N960,000. The question that begs for an answer is what happens to the sum of N80,000 which is the difference between N1 ,040,000 and N960,000 and where then is the place of the sum of N38,000 tax deducted from the 1st Defendant's salary every month and the 1st Defendant did not tender any evidence to explain this differences and the purported mail correspondence stated by the 1st defendant that one Mr. Hassan Ismail the Print Manager of the claimant admitted the debt owed by the claimant does not reflect a full, clear and unambiguous admission and did not admit to the fact that the Claimant is owing the 1stDefendant the sum of 6000 USD (N960,000). Counsel submitted that the Defendants' are not entitled to the orders sought in their counterclaim as neither Exhibit DK2, D02 nor D010 advance credence to the reliefs sought by the Defendants. The defendants’ on the 18th of September, 2015 filed their reply on points of law where they raised three issues for the court’s determination; 1. Whether the contract of employment date 1st of august, 2012 is enforceable under the law 2. Whether the contract of employment is in conformity with the provision of Article 15 of the African Charter or Human and Peoples Right (Ratification and Enforcement) Act. 3. The position of the law as per the admission in Exhibit DK2 On issue one, Counsel with respect to claimant’s counsel submission that clause 25 which is a restrictive covenant is acceptable submitted that counsel’s submission is misconceived in law as Clause 25 of Exhibit D02 which is a trade restrain agreement which imposes far reaching restraints which includes a restriction and undermining of the constitutional rights of the 1st Defendant in the contract of Employment. That the case of NISSAN (NIG) LTD V. YOGANATHAN supra cited by the leaned counsel to the Claimant, basically dealt with doctrine of cause of action and privities of contract. The validity of restraint of trade which is the subject matter of this case was not decided in the said case cited. That in a more recent Court of Appeal case of DR. SHERISH TANKSAHE VS RUBEE MEDICAL CENTRE LTD [2003] LPELR 21445(CA) DELIVERED ON THE 1ST OF JULY, 2013. The Court of Appeal held that; "A Trade restraint agreement which imposes far reaching restrains including a restriction of constitutional rights is one which should be viewed with suspicion in the interest of the larger society whose norms must not be compromised in such agreement. The MOU which imposes a restraint of trade is tainted with illegality which seeks to undermine the hallow provision of the Constitution of Nigeria particularly Sections 211, 40 and 43 of the 1999 Constitution of Federal Republic of Nigeria. The said MOU is hereby struck out as illegal and unenforceable". Counsel urged the court to hold that the restraint of trade in the contract of employment dated 1st of August, 2012 is illegal and unenforceable. On issue two, counsel posited that the argument of claimant’s counsel that Article 15 of the African Charter or Human and Peoples Right (Ratification and Enforcement) Act is in conformity with the terms and conditions of Exhibit D02 as misconceived in law. The restraint of trade in clause 25 of Exhibit D02 is totally at variance with the terms of Article 15 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act. He urged the Court to so hold. On issue three, claimant’s counsel posited that the admission in exhibit DK2 is not full, clear and unambiguous is misconceived as the admission that the claimant is indebted to the 1st Defendant is a clear admission and unambiguous and the case cited is in applicable to the present case. He urged the Court to so hold. I have read the originating processes filed by the claimant, the response to same by the defendants, heard the three witnesses and watch their demeanor, I examined all the documents tendered and admitted on record and considered arguments canvassed by both learned counsel in their respective written submissions and case law and statutory authorities cited; it is in the light of all these that I respectfully frame these issues for the just determination of this suit as thus- 1. Whether or not the claimant has proven its case to entitle it to the reliefs sought and 2. Whether or not the defendants has proven their case to entitle them to their counter claims. The main crux of this case is the claimant's contention that the 1st defendant has breached the terms of his contract with its company, specifically the restriction on him to engage in a similar trade after two years of his exit from its company, by taking away its trade secret and customer profile and also that the 1st defendant breached its term by failing to give it the requisite notice period before exiting its employ. To the claimant, it's company and the 2nd defendant has an anti pouching agreement but same was breached by the 2nd defendant. It is the 1st defendant's position, however, that his contract with the claimant had since expired in 2013 and same was not renewed by him, hence he has not breached any of the claimant's terms of contract. He contends that the claimant owed him salary and allowance and that he left the claimant's employment for that reason. He contends further that the position he is presently occupying in the 2nd defendant's company is different from the position he held whilst in the claimant's employ and that the claimant owes him salary. It is a long settled position of the law as expressed in plethora of cases that parties are bound by their agreement freely entered and none of them is permitted to resile from it. See OSUN STATE GOVT. V. DALAMI (Nig.) LTD. (2007) ALL FWLR (Pt. 365) 439 at 468 Paras. F - G (SC); Larmie v. D.P.M.S. Ltd. (2005) 18 NWLR (Pt.958)438SC, STANDARD MANUFACTURING CO. LTD & ANOR V. STERLING BANK [2015] LPELR-24741 CA; The court of appeal in AL-BISHAK V. NATIONAL PRODUCTIVE CENTER & ANOR [2015] LPELR-24659 CA, held that it is imperative for the court to give legal effect to the intention of the parties evidenced in their contractual agreement except there is proof of fraud or illegality. I will quickly address the issue of breach of contract as regards the exit of the 1st defendant from the claimant's employ before going into the issue of trade restriction. It is the contention of the claimant that the 1st defendant resigned from its employment by an Email dated 26th November, 2014 i.e. exhibit GK2, while he was already in the employment of the 2nd defendant since the 20th October, 2014. It is not in doubt that the 1st defendant secured an employment with the 2nd defendant one month before he tendered his resignation letter, exhibit GK, it is also not in doubt that the 1st defendant is to give a notice period of 6 months for determination of his employment with the claimant, See clause 26 of exhibit DO2. I have held supra that parties are bound by their agreement freely entered into by them. The 1st defendant did infact admitted under cross examination that he was employed by the 2nd defendant in October 20th, 2014 while he tendered his letter of resignation in 26th November, 2014, though his defence is that he was owed salary. The law is therefore well settled and as laid down in several case law authorities that facts admitted need no proof and the court is expected to act thereon. See ATANDA v. ILIASU [2012] LPELR-19662. The argument of the 1st defendant that he was not paid his salary is not an excuse for breaching a contract of employment. There are legal procedure for claiming same by not necessarily breaching his contract. He further argued that exhibit DO2 is no longer valid having expired since 2013. The law is of common that where a document is plain and unambiguous, the court should give it its plain meaning. In AMODE &ANOR v. DINO &ORS [2008] LPELR-8405(CA); the Court of Appeal per LOKULO-SODIPE J.C.A, held that:-“The law is that where a document is clear, the Operative words in it are to be given their simple and ordinary grammatical meaning. One is not to read into the document what is not there. A document duly pleaded and tendered once admitted is the best evidence of its content and therefore speaks for itself." It is obvious by clause 3 of exhibit DO2 that the contract agreement is for an initial period of one year, but may be extended by the mutual agreement of both parties and by clause 32, which states that except clause 5 ( which is a provision on salary) all other clauses of exhibit DO2 from Section 1- 32 shall be deemed to be continuous and remains in place as a contract of employment until such time the employee leaves the employment of the company for whatsoever or the company gives a written notices of a change of condition of service. It is clear from the provision of exhibit DO2 the contract regulating the relationship between the duo that the contract is deemed continuous by the mutual agreement of both parties. I say so in view of clause 32 of exhibit DO2 and the fact that the 1st defendant remained in the claimant's employ even far beyond the expiration in July 2013, he received salary up till October, 2014, as evinced on exhibit DO10, 1st defendant's pay slips. The 1st defendant has by his conduct or inaction waived his right to complain at this stage. See the decision of the apex court in the locus classicus on waiver of rights, the Court stated on waiver clearly in ARIORI V. ELEMO [1983] 1 SCNLR p. 1 at p. 13. ESO JSC( of blessed memory as he then was) in his lead judgment is very instructive on the concept of waiver. It reads: "The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both ... The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability should be the best Judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights. He is, to put it in another way, estopped from raising the issue.'' I place heavy reliance on the above decision and consequently, find and hold that the contract of employment between the claimant and the 1st defendant is deemed to have remained in force by mutual agreement of both parties up till the time of the 1st defendant exit from the claimant's employ. I so hold. Next, is whether or not the action of the 1st defendant constitutes an infraction on the terms of contract? The 1st defendant admitted on oath that he was employed by the 2nd defendant before he resigned his appointment with the claimant. It is the claimant's position that it is a breach of its agreement. A cursory examination of exhibit DO2, reveals that by clause 26, the 1st defendant is to give the claimant 6 months written notice before exiting its employ. This the 1st defendant failed to do. He admitted that he resigned his appointment on 26th November and stated thus ''it is to take immediate effect''. The import of this is that the 1st defendant has breached the contract of employment and the claimant is thus entitle to damages for the period of notice. It is the submission of learned defence counsel, however, that the claimant has failed to comply with its contract by withholding some part of the 1st defendant's salary as evinced by exhibit DO10. The position of the learned claimant counsel on the other hand is that the 1st defendant's salary between August 2013 till October 2014, was N238,000.00 and not N280,000 as alleged by the defence and submits that the claimant did not short pay the 1st defendant. I beg to disagree with the claimant's counsel, in that it is plain on exhibit DO2 clause 5 thereof, that the claimant agreed to pay the 1st defendant the sum of N280,000.00 net per calendar month payable in arrears on the last working day of each month. Claimant admits that it pays the 1st defendant the sum of N238,000 monthly from August 2013 till October, 2014, as stated supra, facts admitted need no prove as the law is settled. An employee's salary becomes due and his right to it is vested at the end of each month. See UNDERWATER ENG.CO. LTD V. DUBEFON[1995] 6 NWLR (PT.400) 156SC. It is in the light of this that I find that the claimant short paid the 1st defendant in the sum of N42,000.00 from August 2013 to October 2014 and that is also an infraction on the contract of employment exhibit DO2. In effect I find that the claimant short paid the 1st defendant the sum of N42,000 from August 2013 till October 2014, when the latter resigned his appointment, the total of which is N42,000 multiplied by 14 months will give a total amount of N588,000. It is in the light of the decision of the court in UNDERWATER'S case supra, which is to the effect that the claimant breached the terms of its contract from each month it short paid the 1st defendant i.e from August 2013, Consequent upon which I find and hold that the 1st defendant is entitled to be paid the sum of N588,000 as salaries withheld by the claimant without any just cause. It is thus evident from the above that the claimant by wrongfully withholding the above stated sum from the 1st defendant salary for upward of 14 months is a grievous breach of its contract of employment with the 1st defendant and cannot as rightly submitted by the learned defence counsel be allowed to benefit from its wrongful act. It is in the light of this that I find that the claimant is not entitled to any damages for the notice period the 1st defendant ought to have given it. By L.U.T.H & M.B V. ADEWOLE [1998] 5 NWLR (PT. 550) @ 406, where the claim is that payment of salaries has been wrongfully withheld the cause of action accrues from the date the salaries are due for payment. The liability of the employer does not depend on demand for payment by the employee. Going by the decision in Adewole's case, the 1st defendant's cause of action or complaint in this suit accrues from August 2013 when the claimant started withholding part of his salary in the sum of N42,000. The implication of which is that the claimant breached clause 5 of its agreement with the 1st defendant's since August 2013 when it started withholding his salary. It is in consequence that I find that the claimant as decided supra breached clause 5 of the contract of employment. Now, as regards the restraint of trade, the locus classicus on the principle on restraint of trade is the case of NORDENFELT. V. MAXIM NORDENFELT, (1894) A.C 535; (1891-4) ALL ER Rep. 1.111; where it was held that Restraint of trade arises when one or both parties agree to limit their individual freedom to contract, especially their future freedom to freely practice their skill, trade or profession. The general rule is that all covenants in restraint of trade are void as being contrary to public policy in the absence of special circumstances justifying them. See also ANGLO -AFRICAN SUPPLY CO.LTD V. BENVIE [1936] 13 NLR,158. The Court applied the principle of severance. A restraint of trade agreement, whether partial or general is a restraint of trade, and once the object is to restrict a person’s freedom in trade and competition, it is prima facie void. See HERBERT MORRIS LTD V SAXELBY [1916] 1 AC 688 and the Nigeria case of KOUMOULIS V A.G LEVENTIS MOTORS LTD [1971] 1 ALL NLR (PT 2) 144 Now, the crux of the claimant's case is that the 1st defendant has breached its restraint of trade clause 25 of exhibit DO2, i.e. the contract agreement freely executed by both parties. I have perused all the clauses contained in exhibit DO2, clause 25 is hereunder captured thus- “for the period of two years immediately following the termination for whatever reason of this agreement, the employee agrees not to work in the same or similar capacity in any company whose business is the same or similar to that of the employer in Nigeria except with the prior written permission of the employer to do so, which permission will not be unreasonably withheld though it will normally be withheld if the employee intends to work in the same or similar business to that carried out by the company.” What the above clause seeks to achieve is to restrict the 1st defendant from taking up same or similar employment or position in another company in a similar trade. It is the submission of learned claimant's counsel that exhibit DO2 is a subsisting contract of employment between the claimant and the 1st defendant and clause 25 was breached by the 1st defendant. To the defendants on the other hand, the claimant's business is different from that of the 2nd defendant and that the 1st defendant's position is not the same as the position he held in the claimant's employ. Trade restraint is defined by Sagay- in his book. ''Nigerian Law of Contract'', 2nd Edition @ page 427 as: "A contract in restraint of trade is one in which a party covenants to restrict his future liberty to exercise his trade, business or profession in such a manner and with such persons as he chooses. Prima facie such contracts are void. But where it can be established that such restrictions are justifiable in the circumstance as being reasonable from the points of view of the parties and the public, they are valid and binding." It is the position of law as evinced in plethora of cases as stated supra that provisions in a contract which are in restraint of trade are void ab initio and unenforceable, except it is reasonable. This is also evident in the above quoted definitions. This is against the known position of the law that parties to an agreement are bound by it. Restraint of trade is entirely regulated by public policy as formulated by the Courts, this would be seen in case law authorities on this subject, considered in this judgment. The above position of the Courts on trade restraint, can however, be rebutted by proving that the restraint is reasonable, both as between the parties and in relation to the public interest or that the employee has either acquired trade secrets, or has gained influence over the employer’s customers, either because they rely on the employee’s skill and judgment, or because they have dealt exclusively with that employee. It is not sufficient that the employee may compete with the former employer, or use skill and knowledge acquired by the employee in his employer’s business. The main question that the claimant needs to answer is whether or not the restraint is reasonable as between the parties and in relation to public interest on the first part and secondly to show that the 1st defendant went away with its trade secret. The claimant in prove of its claim alleged that the 1st defendant is entrusted with the trade secret of its company and that he is in constant communication with its customers. It did go on to give an instance where one of its customers Niger Biscuit informed it that the 1st defendant had used the same concept of package used by the claimant to produce same package at the 2nd defendant's company which was sold to Niger Biscuit. It is the further arguments of the claimant that there is an agreement between it and the 2nd defendant as regards poaching of each others' staff, it tendered in prove of this assertion exhibit DO5. This series of documents represent Email correspondences between one Hassan Ismail of the claimant's company and one Ajai Mussadi who is said to be the Group MD of the 2nd defendant's group of companies. It is plain on that exhibit that on the 7th October, 2014 at 7.29PM, Ajai Mussadi sent a mail to Hassan Ismail of Studio Press telling him that they don't take any expatriate without NOC unless he goes to India and come back and Hassan Ismail replied on the same date at 10.03 PM, that he confirms the gentleman's agreement they had vide a telephone conversation and reiterated to the GMD of the 2nd defendant assuring him that the claimant will not poach any of its staff either Local or expatriate unless with an approved NOC letter. Meanwhile another Email from Ajai Mussadi to the claimant's Hassan Ismail on 10th January, 2015 at 6.56PM, states thus- ''Dear Hassan, Please refer to our tele talk today & mail below as per our agreement, I have not appointed him locally, he contacted us from India after resignation from SPN thereafter we have appointed him. Let us resolves this issues on mutual understanding this time, while we are ensuring that this situation will not arise again. Thanks for your understanding and co-operation. Looking forward to hear on Monday. Best Regards. Ajai Mussadi Group MD Sona Group of Industries. I deliberately, reproduced the above captured Email in order to get a clearer picture of the poaching agreement between the claimant and the 2nd defendant as well as the circumstances of the 1st defendant's exit from the claimant's company. First question to answer is , are the two companies into the same or similar business? The answer is in the claimant's and defendants; pleadings. Paragraph 1 of the claimant's statement of facts states that it is a company registered in Nigeria with its Head office at Ikeja Lagos and dealing in Printing and Manufacturing of Cartons and Light Packaging Materials in Nigeria, while paragraph 3 of the statement of facts and paragraph 2 of the statement of defence reveal that the 2nd defendant is a company registered in Nigeria with its Head office in Lekki Lagos, and deals in Printing and Manufacturing of flexible laminates, self adhesive labels, plastic pallets/crates and light packaging material in Nigeria. It is also obvious on the pleadings that the 1st defendant was employed as the Chief Digital Artwork Creator. While the 1st defendant was appointed by the 2nd defendant as per its letter of appointment as Production Manager, while at paragraph 20 of their statement of defence, the 1st defendant is said to be appointed as the Quality Assurance Manager of the 2nd defendant. It is my finding that going by the pleadings of both parties their business is similar, in that both companies deal in manufacturing of packaging materials. As regards the 1st defendant's position, it is the 2nd defendants argument that the 1st defendant's position is different in its company. It is in my humble view that the position of a quality assurance Manager is similar with that of an artwork Creator, the difference is just in use of words and rhetoric. Quality Assurance as defined by Oxford Learners Dictionary is a system for ensuring a desired level of quality in the development, production, or delivery of products and services, while Art work creator is also defined as photographs picture prepared for books magazines etc. What this means in effect is that the 1st defendant deals with the design of the packages and ensure that its of a desired level of quality. I thus find that the 1st defendant position with the claimant is similar to the one he holds with the 2nd defendant. This court in NISSAN NIG LIMITED V MR S. YOGANATHAN AND ANOR, supra @ 372 PARAS B-E. Applying the position of the court to this case, the claimant's contention is that the 1st defendant has with him its trade secret contained in a computer allocated solely to him, which was pass worded by the 1st defendant and backed up by him. It is averred by the claimant that 1st defendant had deleted and copied all information contained in the first computer and further pass worded the second computer and thereby preventing the claimant from having access to information and documents needed for the manufacturing of consumer goods. It is also in evidence that but for the intervention of the Police, the 1st defendant would not have released the said trade secret back to the claimant and imputed the outlook correspondence. It is the claimant's arguments that the 1st defendant has released this trade secret to its present employer and thus has affected its business to a very large extent. The apex court in KOUMOULIS V. LEVENTIS MOTORS LTD, supra, the apex court held that where a master seeks to enforce a covenant in restraint of trade between him and his employee, he must show that the covenant is designed for the protection of some exceptional proprietary interest of his. The claimant has proven on record that the restraint of trade is not merely to avoid competition but to protect its trade secret. It in the light of all that I have decided supra and on the authority of KOUMOLIS case that I find and hold that the claimant has proven that the 1st defendant has breached its covenant as regards restraint of trade and same is enforceable. I so hold. Next, is the 2nd defendant liable in any way for the 1st defendant's action. It is stated earlier in this judgment that both the claimant and the 2nd defendant entered a gentleman's agreement against poaching of each others' staff. It is said to be a gentleman's agreement which is expected ordinarily and in the sense of decency and morally is to be honored by both parties. It is deducible from exhibit DO5 and the circumstances of this case that the 2nd defendant infact knew that the 1st defendant was in the employ of the claimant before it engaged him in its company. Although the law is settled that generally a contract cannot be enforced against a third party who is not a party to same. However, an exception to this is where there is a covenant in agreement as it is in this case. This court in Nissan's case, supra held at page 372 thus- ''where a 3rd party knowingly and without justification facilitated or intentionally induced the breach of the contract between the contracting parties, he is liable for inducing or procuring breach of contract...'' It is clear as crystal from the evidence before the court that the 2nd defendant did induce the breach of the contract of restraint of trade between the claimant and the 1st defendant. It's excuse which does not hold water is that the 1st defendant had left the claimant's company and had gone to India before it employed him. This, in my humble view does not represent the true position of what transpired between the 1st defendant and the 2nd defendant, I say so in view of the date the 2nd defendant employed the 1st defendant to its company, i.e. on the 20th October, 2014, a date when the 1st defendant had not resigned his appointment from the claimant's company. See exhibit GK and GK2 respectively. It is obvious that the 2nd defendant had knowledge of the restrictive covenant between the claimant and the 1st defendant before it employed him. It is thus on the balance of preponderance of evidence that I conclude and make a finding that the 2nd defendant facilitated or intentionally induced the breach of the contract between the 1st defendant and the claimant. I so find and hold. Now, is the claimant entitled to damages as claimed? It is the claimant's reliefs 2 and 3 that the court should restraint the 1st defendant from continuing to take up employment from the 2nd defendant or with any other company with similar business or undertakings with the claimant for a period of 2 years as stipulated under clause 25 and restraining the 2nd defendant from further employing the 1st defendant in its employment until the expiration of two years of the restrictive covenant. Having held supra that both the 1st and 2nd defendants have breached the restrictive covenant entered into between the claimant and the 1st defendant, it is in consequence that I make an order restraining the 1st defendant from continuing to be in the employment of the 2nd defendant and the 2nd defendant is equally restrained forthwith from retaining the services of the 1st defendant in its employment until the end of the covenant period of 2 years which is from November, 26th 2014 till October, 25th 2016. I so hold. The claimant is also claiming special damages against both defendants jointly and severally in the sum of N362,726,430.70, this according to the claimant is as a result of the 1st defendant's action of hoarding information and documents belonging to the claimant for the manufacturing of its customers goods by deleting copying and pass word information contained in the computer belonging to the claimant assigned to the 1st defendant to carry out his official duties and the 2nd defendant benefiting from same. In prove of this the claimant tendered ledgers admitted and marked as exhibit DO9, which evinces its monthly sales from August 2014, December to February, 2015. It is plain on this document that the claimant failed or refused to state its sales between September and November 2014. Claimant's defence as per the evidence of CW is that it misplaced its sales ledger for those months. It is the defendants submission that the claimant deliberately withheld those sales ledgers because it would have been unfavourable to it. He cited Section 149(d) of the Evidence Act. I humbly wish to state that the Section quoted by the learned defence counsel is under the repealed Evidence Act, the correct Section of the extant Evidence Act 2011, that confers the same meaning as the section wrongly cited by counsel is Section 169(d) of the Evidence Act 2011. Be that as it may, I agree with the defence counsel's submission that the claimant did not produce the ledger for its sales not even the detail as reflected in the register for those months was produced before the court. This I must say is fatal to the claimant's claim for special damages. As the law is that Special damages must be specifically and strictly proved. See the locus claisicus case of AGUNWA V ONUKWE (1962) 1 ALL N.L.R 537. The claimant has failed to prove that it lost the sum claimed. I so find and hold. Claimant is also asking for cost of action in the sum of N10,000,000.00. The issue of cost would be considered later in this judgment. As regards the second issue, have the defendants proven their counter claims against the claimant to entitle them to same? What are then the defendants counter claims 1. A declaration that the purported restriction contained in the clause 25 of the expired contract of employment dated 1st of August, 2013 between the Claimant and the 1st Defendant is a restraint of trade and same is unreasonable, oppressive, contrary to public policy, void and as such unenforceable. 2. A declaration that the 2nd Defendant not being a party to the employment contract dated 1st of August, 2013 between the Claimant and the 1st Defendant cannot be bound by the terms of the said contract. 3 A declaration that the 2nd Defendant by employing the 1st Defendant after following due process and meeting all the Immigration requirements, has not violated the terms of the contract of employment dated 1st of August 2013. 4. The sum of 6000 USD (N960,000) against the claimant being the balance of unpaid salary or allowances of the 1st defendant by the Claimant. 5. The sum of N250 Million against the Claimant being damages for the inconveniences and embarrassment this suit has occasioned the 1st and 2nd Defendants. 6. The sum of N10 Million against the Claimant being cost of defending this suit by the 1st and 2nd defendants. I will take reliefs 1,2, and 3 and treat them together. The counter claimants want the court to declare clause 25 of exhibit DO2 as unreasonable, oppressive, contrary to public policy, void and as such unenforceable, that the 2nd defendant cannot be bound by the said contract and that the 2nd defendant has not violated the terms of exhibit DO2. I have earlier held in this judgment that clause 25 of exhibit DO2, is restraint of trade which is reasonable in the circumstances of this case, and a trade secret violated by the 1st defendant and thus enforceable. It has also been decided above that the 2nd defendant encouraged/facilitated or induced the breach of the contract between the 1st defendant and the claimant. Having made all these findings earlier in this judgment it is thus in consequence that I find and hold that the defendants counterclaims 1,2, and 3 fail. I am now left with reliefs 4, 5 and 6, which are that the claimant is to pay the sum of $6,000 (N980,000) being the balance of unpaid salary to the 1st defendant. I have held supra that the 1st defendant is entitled to the sum of N588,000 as salaries withheld by the claimant from September 2013 to October.2014 in the sum ofN42,000 per month. The 1st defendant has however, failed to substantiate his claim for $500 per month from October 2013 to October, 2014 as there is no single document on record to show that he is entitle to same. It is on this premise that I find that the 1st defendant is not entitled to the sum of $6,000.00. I so find and hold. Defendants are further claiming damages in the sum of N250M as inconvenience and embarrassment this suit has occasioned them. It is now a settled principle of law that damages are the consequence or a loss flowing naturally from the defendants act, and it needs no proof or pleading once the action succeeds. It's based on the court's discretion which it's exercises by viewing the conduct /attitude of the defendant whether the violation was deliberate. See the case of UBA PLC V. BTL INDUSTRIES LTD (2007) ALL FWLR PT. 352) 1615 AT 1693 - 1694 Paras.E - A SC; BA PLC V. OGOCHUKWU [2014]LPELR-24267 CA. It then follows from the cited decisions that the defendants are not entitled to any damages as they failed to prove their counterclaims. It is rather in my calm view that the claimant having proven its claims against the defendants is to be awarded damages being the natural consequence of the infraction of its legal right by both defendants. The law is again trite that a successful party in a case of breach of contract is entitled to nominal damages even if he has suffered no actual damage. The violation or infraction of his legal right per se will entitle him to nominal damages without proof of any loss incurred by him as a consequence of the breach. It is awarded simply once the claimant establishes a breach f contract but fails to establish a loss caused by the wrong. The essence of a judgment for nominal damages is that the claimant has established a legal right. It is in this vein, that I find that the claimant having been successful in its claims for breach of contract entitles it to damages. Pursuant to Section 19(d) of National Industrial Court Act, 2006, I award damages to the claimant in the sum of N2,500,00.00. I so find and hold. All parties in this suit are praying for costs and the law is now settled that cost follows the event and courts are empowered by the Rules to award cost. See the case of NNPC v. CLIFCO NIG. LTD. (2011) LPELR-2022 (SC); MUDUN & ORS. V. ADANCHI & ORS. (2013) LPELR-20774 .CA. It is at the discretion of the court to award cost. The main requirement is that such discretion like the exercise of any other discretion must be exercised judicially and judiciously. In the case of NNPC v. CLIFCO NIG. LTD. (supra) Rhodes-Vivour, J.S.C. 26 paras E-G states thus- "The award of cost is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons.,,''. It is obvious now that the claimant succeeded on all its main claims except as regards special damages, it is also correct that the claimant as a corporate body has made several appearances in this case and represented by Senior counsel who has filed several processes in the pursuit of this case, it is in the overall interest of justice of this case that I award the cost of N500,000.00 to the claimant against the defendants jointly. Consequent upon which the defendants claim for cost fail. I so find and hold. It is in summary that I make the following declarations and orders- 1. That the 1st defendant breached trade restriction covenant in its terms of employment with the claimant. 2. That the 2nd defendant encouraged/facilitated and induced the 1st defendant to breech his trade restriction covenant with the claimant. 3. That the claimant also breached the terms of contract with the 1st defendant by withholding part of his salary from August 2013 to 0ctober 2014. 4. That the 1st defendant is entitled to be paid the sum of N588,000 as salaries withheld by the claimant. 5. That the 1st defendant is hereby restrained from continuing to be in the employment of the 2nd defendant and the 2nd defendant is equally restrained forthwith from retaining the services of the 1st defendant in its employment until the end of the covenant period of 2 years which is from November, 26th 2014 till October, 25th 2016. 5. That the claimant is entitled to damages for the breach of its restrictive covenant in the sum of N2,500,000.00, this is to be paid jointly by the defendants. 6. Cost is accessed at N500,000.00 this is to be paid jointly by the defendants. 7. All sums awarded in this judgment is to be paid within 30 days of this judgment failing which it shall attract 15% interest. Judgment is accordingly entered. HON. JUSTICE OYWEUMI OYEBIOLA OYEJOJU JUDGE