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<p class="MsoNormal" style="margin-bottom: 0.0001pt;"><u><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">REPRESENTATION</span></u><span style="font-size:12.5pt;font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">O. A. Orewale with W. Abioye Mrs, P. Abah Miss, <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">P. Ali-Bozi and P.C. Eze for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Andrew Okpataku with Paul A. Omolodun for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> </span></u></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">JUDGMENT<o:p></o:p></span></u></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Claimant vide it’s Amended Statement of Facts dated the 17<sup>th</sup> day of September, 2013 approached the Court for the following reliefs -<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">i.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">A declaration that by virtue of the contract of employment between the Claimant and the Defendant, the Defendant at all material times owes a duty to the Claimant to keep confidential information obtained by him or that had come to his knowledge in the course of his employment with the Claimant.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">ii.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">A declaration that the Purported Conversion by the Defendant of the documents and work papers of the Claimant and the Claimant’s client for his own personal use and with the aim of using same to exhort material gain from the claimant and the claimant’s clients is wrongful, null and void.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">iii.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">An order for payment of the sum of N100,000,000 (One Hundred Million Naira) as damages for the acts of conversion committed by the Defendant against the Claimant, as well as general damages for the Defendant’s acts of harassment and embarrassment occasioned by his attempt at blackmailing the Claimant.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">iv.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">An order of Perpetual Injunction restraining the Defendant, either by himself, his agents, servants and privies and/or any persons whomsoever from harassing or further harassing, publishing or further publishing any information likely to tarnish or damage the reputation of the Claimant, any of its partners and/or clients. <o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">v.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">An order Compelling the Defendant either by himself, his agent, servants, privies and/or any persons whomsoever purporting to receive or that has received any of the property of the Claimant including the Claimant’s laptop computer assign to the Defendant in the course of this employment with the Claimant as well as the documents and work-papers of the Claimant and the Claimant’s clients to return them to the Claimant.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-bottom: 0.0001pt;"><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The statement of facts was accompanied by Claimant's witness deposition on oath, list of witness to be called at trial as well as copies of documents to be relied on. The Defendant filed his Statement of Defence and Counter-Claim dated the 13/1/14 and counter claimed as follows -<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpFirst" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">i.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">A claim for the sum of Fifteen Million Naira (N15,000,000) as a result of the embarrassment suffered in the course of his employment with the Claimant, its client; Heritage Capital Market Limited and its MD/CEO CHIDI AJAEGBU which resulted in his untimely resignation due to threat from one of the Claimant’s partners - Mr. Dayo Babatunde, to the Defendant to resign or be forced to do so.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">ii.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">An order of the Honourable Court directing the Claimant to pay the Defendant his outstanding salary for the Month of March 2013, contributory pension scheme deducted from the Defendant’s salary up till when he left the organization of the Claimant as well as Tax deduction and same be given to the Claimant or remitted to the appropriate authority.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.5in;"><!--[if !supportLists]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">iii.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Cost of action of N1,000,000 (One Million Naira) which includes professional and filing fees in respect of this suit.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Defendant's processes also included witness written deposition, as well as copies of documents to be relied on at trial. The Claimant also filed a Reply to the Statement of Defence and Defence to Counter Claim dated 3/3/14 where it’s states as follows:<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.5in; text-align: justify; text-indent: -0.5in;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 1in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">“Whereof the Claimant states that it is not liable to the Defendant/Counter Claim in the sum of N15,000,000 (Fifteen Million Naira) or any sum whatsoever or any outstanding March Salary and that the Defendant/Counter Claimant is not entitled to the grant of the reliefs claimed in the Counter Claim.”<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 1in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The crux of the Claimant’s claim is that the Defendant being in possession of confidential information belonging to the Claimant with regard to its businesses, finances and personal activities of its clients ought to return the confidential information to the Claimant upon his resignation from the Claimant’s employment and that the confidential information being the Claimant’s documents, work papers and sensitive and confidential clients’ information contained in a laptop computer in the Defendant’s possession which the Defendant has threatened to circulate to the public with the purpose of blackmailing the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Claimant through it’s only witness Jane Onobhayedo opened its case on the 6/6/14; adopted her witness written statement on oath dated 26/2/14 as her evidence in chief and tendered seventeen documents. The documents were admitted and marked as <i>Exh.C1</i> to <i>Exh. C17</i> in proof of its case.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Under cross examination <i>CW1</i> testified that <i>Exh. C4</i> was the only complaint leveled against the Defendant by their Client; that after that Defendant was placed on indefinite suspension without pay for 6 months to make room for investigation of the complaint; that Defendant was not found wanting; that Defendant was recalled and all his entitlements paid to him; that Defendant resumed in December of 2012 and was paid in January 2013 and that she is not aware of any letter from Defendant Counsel to the Claimant. Witness stated further that Claimant gave a feedback to its Client orally that Defendant has been cleared and recalled to work; that Claimant worked with Defendant from 2004 to 2013; that she would need to check Defendant’s file with Claimant to confirm if he was issued queries before; that she is the Head of Human Resources; that she has been with Claimant for 1 year and 9 months; that she conducted the exit process of the Defendant and was privy to processes of his exit. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">According to the witness. <i>Exh</i>.<i>C17</i> is not the evidence of Defendant’s final entitlement; that the Laptop given to Defendant was for the purpose of his executing official assignment; that the Laptop is connected to office server; that it is meant to be returned upon exit so that the information in it is backed up and Laptop reformatted; that the IT Department is in charge of the soft copy of information coming to the Claimant; that the hard copies are submitted to the department which archives them; that the IT Department can only disable the e-mail address of existing staff which is for correspondence; that details of information or project worked on both soft and hard copies have to be submitted by the staff who worked on them; that what the Defendant is holding is vital information and not an empty Laptop and that when information comes to a staff handling an assignment he is not under an obligation to report to the Claimant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Defendant opened his defence on the 16/3/15 as the only witness and tendered seven documents as exhibits. The documents were admitted as exhibits and marked <i>Exh. D1 - Exh. D7</i> respectively in proof of his Defence and Counter Claim and in support of his Written Deposition on Oath as well as the Defendant’s pleadings in-respect thereto. The crux of the Defendant’s defence and counter-claim is that he has not breached nor intended to breach his confidentiality obligations owed to the Claimant; that he was forced to resign from his employment with the Claimant; that the Claimant owed him outstanding salary, his pension contributions and that the Claimant did not remit his tax deductions to the appropriate agencies of government.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Under cross examination, DW1 testified that he was employed to work as an Audit staff by the Claimant; that before he was employed by the Claimant he knew one of Claimant's partners, Mr. Henry Egbiki, a relation of his mother; that upon his employment he was trained for 2 weeks and assigned to a Client; that nothing was given to him; that he was given a Laptop 4 years after his employment for the discharge of his duties; that upon resignation of his employment he did not return the Laptop to Claimant because of his claims from Claimant; that he resigned his appointment with Claimant and Claimant accepted the letter of resignation; that on 9/4/13 he was in the office till 8.00p.m. waiting to be attended to being his last day in office; that he met with Human Resources Manager with the Laptop and issue of his entitlement was discussed; that the issue was unresolved; that he demanded evidence of payment of pension to his Pension Fund Administrator; that it was not provided; that he demanded evidence of tax payment deducted from his salary; that same was not provided; that he also demanded basis for the computation of his exit pay; that he felt underpaid and the issue was not resolved; that he did not reduce all this into writing to Management because Human Resources Manager is a Management staff and she promised to get back to him and that she only got back to him after he was served court processes. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Witness added that he did not contact Human Resources Manager because he was waiting for her; that he did not refuse to handover the Laptop but was waiting to hear from the HR Manager who promised to get back to him for settlement and proper handing over; that there was no dispute as to the Laptop; that it does not serve him any useful purpose; that he is willing to return same any time the Claimant wants it. CW1 stated further that he was paid salary in March 2013; that there were hostilities in Claimant Management that led to his resignation; that he did not lodge complain to Human Resources Manager because the Human Resources Department is part of the Management of Claimant. Witness added that he has a Pension Manager while working with the Claimant –<i> ARM Pension Managers</i>; that once his pension deduction is paid to ARM Pension Managers he always received alert from the latter; that he is entitled to his Statement of Account from <i>ARM Pension Managers</i>; that he does not have anything before the Court to show that the pension deduction was remitted but I also did not receive alert of remission from ARM Managers; that he did not ask the <i>ARM Pension Managers </i>if the Claimant remitted his pension deductions; that employers pay personal income tax to Lagos State Board of Inland Revenue; that after his suspension he was recalled back to work; that he resumed about 2-3 weeks after he received letter of recall; that by the terms of his engagement he was not to engage in any other business during his normal working hours; that he does not know <i>Mor-Land Foods & Farms Nig. Ltd; </i>that he knows Toyin Ayeni; that he will be surprised to see any documents linking him with <i>Mor-Lands Foods and Farms Nig. Ltd; </i>that the soft copies referred to in paragraph 13 of the statement of defence and Counterclaim are in the Laptop and Claimant database which is accessible to all and sundry and that he does not have with him documents for payment of professional fees to my Solicitors. In re-examination, the witness testified that he worked for Claimant till 9/4/13 and was not paid his salary up to that day. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">At the close of the hearing of this case, learned Counsel on either side were directed to file their final written addresses. The final written address of the Defendant was filed on 23/9/15. In it, learned Counsel set down the following two issues for determination -<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the Claimant can succeed on the reliefs sought from the preponderance of evidence and pleadings before the Honourable Court. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether in the event that the Claimant fails in the principal reliefs it can be entitled to other or ancillary reliefs.<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 1, learned Counsel submitted that the only portion where the Claimant alleged the act of threat to circulate confidential information at his disposal relating to the claimant and its client to members of the public was in paragraphs 19 and 21 of its pleadings; that Claimant also relied on <i>Exh. C14</i>(Defendant Counsel's letter)<i> & Exh. C16 </i>(Defendant's e-mail) as evidence in respect of same; that same was denied by the Defendant in paragraphs 18 & 20 of his statement of defence and that there is nowhere in the said Defendant's Counsel's letter where he threatened to circulate any confidential information to the members of the public. Counsel submitted further that Reliefs 1 & 2 sought by the Claimant are declaratory in nature and require proper and real proof for a grant, citing <i>Senator Nkechi Justina Nwaogu v. Emeka Atuma & 2 Ors (2013)11 NWLR (Pt. 1364) 117 at 124 & Samson Ugochukwu v. Unipetrol (Nig.) Plc (2002)7 NWLR (Pt. 765) 1 at 7. </i>According to learned Counsel, the Claimant has failed to show any proof or evidence prior, during and after trial till the moment that the Defendant has threatened or disclose any confidential information in respect of the Claimant or its client to members of the public to warrant the declaratory relief contained in Prayer 1. leaned Counsel thus urged the Court to refuse to grant the said relief.<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting Reliefs 2 & 3, Counsel submitted that they relate to a declaration in respect of ''Purported Conversion'' and the sum of =N=100,000,000 as damages for conversion and General Damages. According to Counsel the word <i>Purported </i>is defined as <i>Reputed </i>or <i>Rumored </i>on page 1271 of the <i>Black's Law Dictionary 8th Edition. </i>Counsel submitted that the Court does not act on rumour but on facts and evidence. Citing Kodilinye & Aluko on <i>Nigerian Law of Torts at page 199</i>, Counsel submitted that it is not conversion merely to move a chattel from one place to another without the intent to take possession of it or dispute the owner's title. Learned Counsel referred to the evidence of the Defendant in cross examination where he stated that he did not refuse to hand over the Laptop but that he waiting to hear from the Human Resources manager who promised to get back to him. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">In the alternative, the Counsel submitted that assuming without conceding that there was conversion, that the Claimant has not adduced or plead the particulars of loss and has not proved same and that the purported wrongful act falls under special damages that need to be particularised and proved, citing <i>New Nogerian Bank v. Alhaji Musa Abubakar & Sons (2004)17 NWLR (Pt. 901) 66, Federal Housing Authority v. Horst Sommer & 2 Ors (1986)1 NWLR (Pt. 17) 533 at 535, Gari v. Seirafina (Nig.) Limited (2008)2 NWLR (Pt. 1070) 1 at 27. </i>Referring to the evidence of Claimant's witness under cross examination to the effect that there is nothing in <i>Exh. C14 </i>& <i>Exh. C16 </i>that the Defendant or his Counsel threatened to circulate confidential information relating to mambers of the public, Counsel urged the Court to resolve this issue in favour of the Defendant and hold that the Claimant cannot succeed on the preponderance of evidence and pleadings before the Court.<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 2, learned Counsel submitted that the relief for an order of perpetual injunction will fail in its entirety if the Court decides that the Claimant has not proved its claim for general damages against the Defendant; that a perpetual injunction is a post trial relief grantable as an ancillary one granted as a final order after establishment of a right and that once the principal order in a suit is refused no order incidental to the principal can be granted, citing <i>Adeniran v. Ajao (1992)2 NWLR (Pt. 223) 350 at 372, Lawal v. Adeniyi (1997)3 NWLR (Pt. 494) 457 & S.O.Odulaja & Ors. v. Wema bank Limited & Ors. (2015) NWLR (Pt. 1464) 299 at 303. </i>Counsel prayed the Court to refuse the relief for perpetual injunction.<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting Relief 5, Counsel submitted that under cross examination, the Defendant gave evidence that he is willing to return the Laptop anytime wants it and that he did not refuse to handover same; that while <i>Exh. C17 </i>is the evidence to Defendant in March 2013 before he left the services of the Claimant on 9/4/13, there is no evidence of the payment of the Defendant's final entitlement, payment of his salary up till 9/4/13 as well as evidence of remittance of his pension and Tax deducted from his salary. Learned Counsel further submitted that even if there is evidence of conversion, on tha authority of <i>Unipetrol Nigeria Limited & Or. v. Prima Tankers Limited (1986)5 NWLR (Pt. 42) 532 at 535 </i>that in a case for conversion, the Claimant is entitled to the return of the article seized or in possession of the other party or its value and that no claim for general damages is maintainable. Counsel urged the Court to refuse the relief 5 as sought.<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On the counter claim of the Defendant, learned Counsel referred to the words used by the Claimant as contained in paragraph 30 of his pleadings, the allegation of rude language against the Defendant as contained in <i>Exh. C10 </i>whereas in the same letter Defendant has been absolved of the alleged offence and has not resumed to suggest the commission of a fresh offence. Counsel submitted that the decision not pay the Defendant for the period of suspension for an alleged offence he has been cleared not only showed a clear breach of clause relating to suspension in page 3-10 of <i>Exh. C3, </i>it also depicts a manifestation of a grand design by the Claimant and its client to not only embarrass the Defendant but also to expose him to hatred, contempt or ridicule or disparage him in his office or profession. Counsel thus urged the Court to grant the counterclaim as sought and dismiss the case of the Claimant with substantial cost. <o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The final written address of the Claimant was filed on 29/2/16. Learned Counsel set down the following 5 issues for determination -<o:p></o:p></span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 0.25in; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpFirst" style="margin-bottom: 0.0001pt; text-align: justify; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-size:12.5pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">1.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Whether by the terms of contract of employment the Defendant had with the Claimant, the Defendant before and after cessation of his employment with the Claimants not under a duty to hold and keep all confidential information obtained in the course of his employment with the Claimant and whether the threat by the Defendant to circulate such confidential information is not unlawful and a violation of his contractual obligations to the Claimants?.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom: 0.0001pt; text-align: justify; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-size: 12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">2.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Whether the Defendant was right when he wrongfully detained all the properties of the Claimant after his resignation despite the Defendant’s receipt of a demand notice from the Claimant, that is, exhibit C12?.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom: 0.0001pt; text-align: justify; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-size: 12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">3.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Whether the Claimant is entitled to general damages for the Defendant’s act of conversion of the Claimant’s property, being confidential information that has caused or may further cause the Claimant and its clients serious economic, financial and reputational losses?.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom: 0.0001pt; text-align: justify; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-size: 12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">4.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Whether the Claimant is entitled to an order of perpetual injunction restraining the Defendant from harassing/further harassing or publishing/threatening to publish any confidential information likely to tarnish or damage the reputation of the Claimant or its clients?.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-bottom: 0.0001pt; text-align: justify; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-size:12.5pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"">5.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Whether the Defendant is entitled to the reliefs sought in his counter claim?.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On issue 1, learned Counsel submitted that it is not disputed that the Defendant was employed by the Claimant; that the fact of the matter before the Court is that after resignation from the Claimant's employment, the Claimant received <i>Exh. C4 </i>from the Defendant's Solicitors written on behalf of the Defendant and threatening to circulate all confidential information at his disposal relating to Claimant and its clients to members of the public and that the threat was further reiterated by the Defendant in <i>Exh. C6. </i>According to learned Counsel, Defendant is bound by <i>Exh. C3 - Policies and Procedures Manual </i>on confidentiality both during and after his employment and that by <i>Exh. C2 - Terms and Conditions of Employment </i>Defendant is subject to the usual rules of professional conduct and secrecy. Learned Counsel submitted that the words of <i>Exh. C3 </i>are clear and unambiguous and the Court must accord them their ordinary grammatical meaning citing <i>Okusanmi v. A.G, Lagos State(2015)4 NWLR (Pt. 1449) 220 at 250-251 & Oilserve Limited v. L.A.I & Co. (Nig.) Ltd (2008)2 NWLR (Pt. 1083) 4. </i>Learned Counsel referred to the testimony on oath of Claimant's sole witness to the effect that the Defendant has a duty to keep his information, work papers and documents obtained in the course of his employment confidential and that the duty continues after the cessation of his employment and that by paragraphs 13 & 17 of the statement of claim and counter claim Defendant confirmed that he has soft copy and photocopy of documents prepared by him and that he is holding on to the Laptop because of the refusal of the Claimant to pay him his outstanding benefits. Counsel submitted, citing <i>Nika Fishing Co. Limited v. Lavina Corporation (2008)16 NWLR (Pt. 1114) 509 at 542,</i> that where there is a contract regulating any arrangement between the parties, the parties, the main duty of the court is to interpret that contract and give effect to the wishes of the parties as expressed in the contract document. Counsel further submitted that the best proof of <i>Exh. C14 & Exh. C16 </i>are their contents, citing <i>S. 25, Evidence Act & Chief S.O. Agbareh & Anor. v. Dr. Anthony Mimra & Ors (2008) LPELR-235</i> and prayed the Court to resolve this issue in favour of the Claimant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On issue 2, Counsel submitted that upon resignation from the employment of the Claimant, the Defendant had an exit interview with the Human Resources Department Manager; that the Defendant failed to return the Claimant's property in his custody including his identity card, access card, Laptop computer containing sensitive and confidential clients' and claimant's information. Counsel referred to the testimony on oath of the Defendant to the effect that he was given a laptop 4 years after his employment for the discharge of his duties and that upon cessation of his employment he did not return the Laptop to the Claimant because of his claims from the Claimant. Learned Counsel urged the Court to resolve this issue in favour of the Claimant and grant the declaration sought.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Respecting issue 3, Counsel submitted, citing <i>Boniface Anyika & Co. (Nig.) Ltd v. Uzor (2006)15 NWLR (Pt. 1003) 560 at 575 </i>that for the Tort of conversion to be committed, the following ingredients must be present and proved a. That the goods belonged to the Plaintiff; b. that the goods do not belong to the Defendant; c. that the goods were taken out of the possession of the owner, the Plaintiff, without lawful justification; d. that the Defendant had the intention of exercising permanent or temporary dominion over the goods; e. that there was a specific demand for the goods by the Plaintiff the owner; and f. that the denial was followed by an unequivocal act of refusal to surrender the goods by the Defendant to the Plaintiff. Learned Counsel submitted that Defendant's refusal to return the Claimant's Laptop computer and work papers containing confidential information is inconsistent with the Claimant's contractual obligation relating to the use and possession of the property of the Claimant and that the retention of the Claimant's property by the Defendant after demand via <i>Exh. C12 </i>makes the retention wrongful and the Claimant is entitled to be compensated in damages. Counsel prayed the Court to resolve this issue in favour of the Claimant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">With regard to issue 4, Counsel submitted, citing <i>Coco v. AN Clark (Engineers) Ltd (1969) RPC 41, </i>that for a case of breach of confidence to succeed, apart from contract, the information must be of a confidential nature; (b) the information must have been communicated in circumstances importing an obligation of confidence; and (c) there must be unathorised use of the information to the detriment of the person communicating it. Counsel submitted that the Claimant has shown both by evidence and pleadings that irreparable damage will be meted to it if the Defendant is allowed to publish the confidential information obtained in the course of his employment with the Claimant and that the Claimant will by the reason of the said publication will suffer loss of clientele, income and its corporate image and reputation will be permanently dented. Counsel urged the Court to resolve this issue in favour of the Claimant and grant the perpetual injunction sought. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On issue 5, learned Counsel submitted that the Defendant has failed to prove his counter claim to be entitled to same. According to learned, the counter claim for =N=15,000,000.00 was embarrassment suffered by the Defendant in the course of his employment with the Claimant, yet no evidence was led while by <i>Exh. C11, </i>the Defendant voluntarily resigned his employment with the Claimant. Respecting prayer for outstanding salary, Counsel submitted that <i>Exh. C17 </i>is evidence of payment of March, 2013 salary to the Defendant; that there is no evidence of non-remittance of the Defendant's pension deductions to his Pension Fund Administrator as required by the <i>Pension Reform Act, 2004; </i>that although the Defendant admitted under cross examination that he is entitled to a statement of account from his <i>PFA, </i>Defendant did not produce any such statement of account. Counsel submitted that he who asserts must prove and that in this case, Defendant has failed to prove his assertion. He urged the Court to dismiss the counter claim. On the counter claim for =N=1,000,000.00 as cost including professional and filing fees, learned Counsel submitted, citing <i>Raphael Ejezie & Ors. v. Christopher Anuwu & Ors. (2008) LPELR-1063 (SC),</i> that it is unethical and an affront to public policy to pass on the burden of Solicitor's fees to the other party. In any event, Counsel submitted further that even if the Solicitor's fees could be passed on to the other party, that it is in the realm of special damages which must be specifically proved citing <i>Lonestar Drilling Nigeria Limited v. New Genesis Executive Security Limited (2011) LPELR-4437 (CA). </i>Learned Counsel urged the Court to hold that the Defendant has failed to prove by credible evidence his entitlement to the counter claims. sought. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">I have carefully read and understood all the processes filed by learned Counsel on either side. I listened attentively to the testimonies of the witnesses called at trial, watched their demeanour and evaluated all the exhibits tendered and admitted. Having done all this, I have come to narrow the issues for the just determination of this case to mainly two as follows -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">1. Whether the Claimant has proved its case to be entitled to any or all the reliefs sought.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">2. Whether the Defendant has proved his counter claims to be entitled to a grant of any or all of same.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Claimant sought 5 prayers from this Court. The first is for a declaration that by virtue of the contract of employment between the Claimant and the Defendant, the Defendant at all material times owes a duty to the Claimant to keep confidential information obtained by him or that had come to his knowledge in the course of his employment with the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The law is trite that where there is written contract between parties, they are bound by the unambiguous provisions of such contract document and in employment contract, parties are bound by the express terms and conditions as stipulated in same. The best the Court can do is to give effect to the clear intent of the parties and not to make contract for them. See <i>Oilserve Limited v. L.A.I & Co (Nig.) Ltd (2008)2 NWLR (Pt. 1083).</i> Both parties agree on the application and relevance of <i>Exh. C1, Exh. C2 & Exh. C3 </i>to this case. While <i>Exh. C1 </i>is the offer of appointment letter issued to the Defendant, <i>Exh. C2 & Exh. C3 </i>are <i>Terms and Conditions of Employment </i>and <i>Policies and Procedures Manual </i>respectively. Page 2 of <i>Exh. C2 </i>has a provision on <i>Code of Conduct </i>which relates '' ... to the usual rules of professional conduct and secrecy''. Now more explicit is the provision under the sub head <i>Respect for Confidential Information </i>contained on page 22 of <i>Exh. C3. </i>It states thus -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''Everyone in our firm share the responsibility of preserving the confidentiality of information, and all personnel as a condition of their employment, will sign a confidentiality agreement, which will be retained in their personal file. This agreement obliges the employee to keep confidential both during and after employment, all non-public information concerning any of the firm's clients or other business contacts, which might come to his attention, either directly or indirectly, during the course or by virtue of employment'' .<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">I hold that the above is clear and unambiguous as unequivocal intent of the parties to be bound as stated. I thus have no hesitation in granting the first relief sought by the Claimant. I therefore declare that by virtue of the contract of employment between the Claimant and the Defendant, the Defendant at all material times owes a duty to the Claimant to keep confidential information obtained by him or that had come to his knowledge in the course of his employment with the Claimant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The second relief sought is for a declaration that the Purported Conversion by the Defendant of the documents and work papers of the Claimant and the Claimant’s client for his own personal use and with the aim of using same to exhort material gain from the claimant and the claimant’s clients is wrongful, null and void. The crux of the Claimant's case respecting this relief is that the Defendant converted its property in his custody. The law has always been that he who asserts must prove same by credible, cogent and admissible evidence. For a grant of this relief, it is imperative for the Claimant to prove conversion on the part of the Defendant. Learned Counsel to the Claimant cited <i>Boniface Anyika & Co. (Nig.) Ltd v. Uzor (2006)15 NWLR (Pt. 1003) 560 at 575 </i>that for the Tort of conversion to be committed, the following ingredients must be present and proved a. That the goods belonged to the Plaintiff; b. that the goods do not belong to the Defendant; c. that the goods were taken out of the possession of the owner, the Plaintiff, without lawful justification; d. that the Defendant had the intention of exercising permanent or temporary dominion over the goods; e. that there was a specific demand for the goods by the Plaintiff the owner; and f. that the denial was followed by an unequivocal act of refusal to surrender the goods by the Defendant to the Plaintiff. Can it be said on the basis of the facts of this case that the Claimant has proved conversion to be entitled to this relief? For instance, I find no evidence that the said goods or property of the Claimant was taken away by the Defendant without lawful justification. There is also no evidence that a demand was made for the return of the property and followed with a refusal. I have evidence of the Defendant both in chief and under cross examination of the circumstances leading to his being in possession of the property of the Claimant. It was also part of the evidence of the Defendant that he remains in possession of the property because the Human Resources Manager of the Claimant promised to get back to him. These pieces of evidence were not in any way contradicted. This is in addition to the fact that the Defendant also told the Court that he was prepared to return the property of the Claimant anytime the Claimant requested same. I find no evidence of the intention of the Defendant to deny the Claimant ownership of its property with him. This head of claim is not proved and I find no basis for a grant of same. </span><span lang="EN-GB" style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; color:#000099;mso-ansi-language:EN-GB;mso-fareast-language:EN-GB">See also <i>Owen a Bank (Nig.) Ltd. v. Nigerian Sweets and Confectionery Co. Ltd. (1993) 4 NWLR (Pt. 290) 698; National Bank of Nigeria Limited v. Mobil Oil Nigeria Limited (1994) 2 NWLR (Pt. 328) 534; Danjuma v. Union Bank (Nig.) Ltd. (1995) 5 NWLR (Pt. 395) 318; Omidara v. Ademiluyi (1997) 6 NWLR (Pt. 508; 294; Yusuf v. Mobolaji (1999) 12NWLR (Pt. 631) 374; Trade Bank Plc. v. Barilux (Nig.) Ltd. (2000) 13 NWLR (Pt. 685) 483." Per Tobi, J.S.C. (Pp.17-18, Paras.E-C)</i></span><i><span lang="EN-GB" style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> </span></i><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Thus I refuse a prayer for a declaration that the Purported Conversion by the Defendant of the documents and work papers of the Claimant and the Claimant’s client for his own personal use and with the aim of using same to exhort material gain from the claimant and the claimant’s clients is wrongful, null and void. I accordingly dismiss same for lack of proof.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The third relief sought is for an order for payment of the sum of One Hundred Million Naira (N100,000,000) as damages for the acts of conversion committed by the Defendant against the Claimant, as well as general damages for the Defendant’s acts of harassment and embarrassment occasioned by his attempt at blackmailing the Claimant. The success of this relief is predicated on the success of Relief 2 on conversion. It is trite that one cannot put something on nothing and expect it to stay there. See <i>UAC v. MacFoy (1962)AC 159. </i>The claim for Relief 2 having failed for lack of proof, this claim for damages must also fail. Thus this claim for damages is refused and dismissed.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The fourth relief is for an order of Perpetual Injunction restraining the Defendant, either by himself, his agents, servants and privies and/or any persons whomsoever from harassing or further harassing, publishing or further publishing any information likely to tarnish or damage the reputation of the Claimant, any of its partners and/or clients. The relief of perpetual injunction is a consequential order which would naturally flow from the declaratory order sought and granted by the Court. Essentially, the imperative of this hybrid injunction is to prevent permanently the infringement of those rights and to obviate the necessity for bringing multiplicity of suits in respect of every repeated infringement. See <i>Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. (2012) LPELR-9349(SC). </i>Perpetual injunction is only grantable after a trial and the applicant has established an actual or threatened infringement of his rights. What are the rights of the Claimant that are threatened by the Defendant in this case? The basis of the alleged threatened right of the Claimant was <i>Exh. C14 & Exh. C16. </i>Claimant alleged that by these two exhibits Defendant had threatened to ''... circulate all confidential information at his disposal relating to the Claimant and its clients to members of the public in breach of its contractual obligations...''. Now I examined and evaluated both exhibits and it becomes important that I bring to the fore some of their contents in relation the position of the Claimant. <i>Exh. C14 </i>was a letter written by Defendant's Solicitors. It was dated 5/7/13. On its second page and the first paragraph I find the followings -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''Our Client has considered it necessary to now present the entire facts, issues and evidence by means of petition to the relevant professional and regulatory bodies as well as parent body of ERNST AND YOUNG cum Litigation in a bid to establishing the veracity of who indeed exhibited 'Unprofessional attitude', 'unprofessional misconduct', amongst others in the cause of his duty; audit of Heritage capital Market Limited inclusive''.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Now respecting <i>Exh. C16, </i>it was an electronic mail sent by the Defendant to one Henry Egbiki said to be the Managing Partner of the Claimant. I am constrained to reproduce the short message as follows -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''I am being compelled by pressure from friends and relatives and the allegations of blackmail by you to hurriedly extract some of the points raised in our petition to regulatory bodies, EY global and security agencies on Heritage Capital Markets audit. I prefer sending them to you to debunk the issue of blackmail and provide you with first hand information on what to expect from the petition. Devulging (sic) them to you will not in anyway diminish the issues as have work papers, client TB, mapped TB, Adjustments, words and excel version of 2009, 2010 and 2011 accounts. If your partnesr (sic) and staff can not provide the information you may need to digest and evaluate some of the points raised, i will gladly obliged (sic) you. This is because i want you to believe i dont have any thing against you. I also want you to on your own find out who was negligent on the audits. You are free to share the information with your partners.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> This was hurriedly extracted from the body of the petition as i will not be in town from tomorrow and will not have access to internet''.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The two exhibits which the Claimant relied on for seeking an order of perpetual injunction essential portions of which are quoted above do not suggest to me the infringement of any rights of the Claimant to warrant the grant of the order sought. The purpose for which this relief is sought is not proved. The order is thus refused accordingly.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Finally, the Claimant sought an order compelling the Defendant either by himself, his agent, servants, privies and/or any persons whomsoever purporting to receive or that has received any of the property of the Claimant including the Claimant’s laptop computer assigned to the Defendant in the course of this employment with the Claimant as well as the documents and work-papers of the Claimant and the Claimant’s clients to return them to the Claimant. The Claimant has not proved before me that the Defendant had passed its property in his custody to any third party. Again in both his pleadings and under cross examination, the Defendant owned up to being in possession of the Laptop of the Claimant and that he is willing to return same anytime the Claimant wants same. There being no controversy respecting this, the Defendant is ordered to immediately return to the Claimant all property of the Claimant in his custody.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The counter claims of the Defendant are 3 in number. It is imperative to state that the position of the law is that counter claims are akin to separate suits. Thus just as the Claimant is under an obligation to prove his claims, the Defendant/Counter claimant must also adduce cogent, credible and admissible evidence in support of his counter claims in order to be entitled to same. This principle is simply a restatement of the age old principle that he who asserts must prove. See <i>Section 123, Evidence Act, 2011. </i>The first counter claim of the Defendant is for the sum of Fifteen Million Naira (N15,000,000) as a result of the embarrassment suffered in the course of his employment with the Claimant, its client; Heritage Capital Market Limited and its MD/CEO CHIDI AJAEGBU which resulted in his untimely resignation due to threat from one of the Claimant’s partner’s Mr. Dayo Babatunde to the Defendant to resign or be forced to do so. Averments in pleadings are not the same as evidence. Averments are required to be backed up and supported by credible and concrete evidence. I perused and evaluated all the 7 exhibits tendered by the Defendant in this case. I find no evidence of any embarrassment suffered by the Defendant either in the hands of the Claimant or its client Heritage Capital Market Limited as alleged by the Defendant. Secondly, in all the said exhibits I find no reference made to or proof of alleged threat by Claimant's partner Mr. Ayo Babatunde to the Defendant. It is also on record that the Defendant did not contest the fact he resigned voluntarily from the employment of the Claimant. See <i>Exh. C11 </i>in which he thanked the Claimant ''... for the opportunities for professional and personal development that you have provided me over the years''. I find no proof of this head of counter claim. Same is thus dismissed. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Respecting the second counter claim which is for an order of the Honourable Court directing the Claimant to pay the Defendant his outstanding salary for the Month of March 2013, contributory pension scheme deducted from the Defendant’s salary up till when he left the organization of the Claimant as well as Tax deduction and same be given to the Claimant or remitted to the appropriate authority. I find <i>Exh. C13 </i>helpful on this counter claim. The outstanding salary of the Defendant was stated including the pre-Pension Reform Act contributions. The total sum is stated to be =N=367,597.94. There is no contest as regards the figure between the parties. I order that the sum of =N=367,597.94 as stated on <i>Exh. C13 </i>be paid to the Defendant as his outstanding salary and pre-Pension Reform Act contribution. Respecting Tax and post Pension Reform Act pension deduction, the Defendant did not throughout the trial of this case adduce evidence to show that the Claimant did not make the necessary remittances to the appropriate government agencies. To therefore make the order respecting this as sought by the Defendant will tantamount to making an order without a basis. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The final head of the counter claim is for cost of action of One Million Naira (=N=1,000,000) which includes professional and filing fees in respect of this suit. The position of the law is as aptly stated by learned Counsel to the Claimant. The head of counter claim is refused and dismissed as being both unethical and an affront to public policy. See <i>Guinness Nig. Plc v. Nwoke (supra).<o:p></o:p></i></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment,<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">1. I declare that by virtue of the contract of employment between the Claimant and the Defendant, the Defendant at all material times owes a duty to the Claimant to keep confidential information obtained by him or that had come to his knowledge in the course of his employment with the Claimant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">2. Thus I refuse a prayer for a declaration that the Purported Conversion by the Defendant of the documents and work papers of the Claimant and the Claimant’s client for his own personal use and with the aim of using same to exhort material gain from the claimant and the claimant’s clients is wrongful, null and void. I accordingly dismiss same for lack of proof.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">3. I refuse the prayer for an order for payment of the sum of One Hundred Million Naira (N100,000,000) as damages for the acts of conversion committed by the Defendant against the Claimant, as well as general damages for the Defendant’s acts of harassment and embarrassment occasioned by his attempt at blackmailing the Claimant for lack of proof.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">4. I refuse the prayer for an order of Perpetual Injunction restraining the Defendant, either by himself, his agents, servants and privies and/or any persons whomsoever from harassing or further harassing, publishing or further publishing any information likely to tarnish or damage the reputation of the Claimant, any of its partners and/or clients for lack of proof. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">5. The counter claim for the sum of Fifteen Million Naira (N15,000,000) as a result of the embarrassment suffered in the course of his employment with the Claimant, its client; Heritage Capital Market Limited and its MD/CEO CHIDI AJAEGBU which resulted in his untimely resignation due to threat from one of the Claimant’s partner’s Mr. Dayo Babatunde to the Defend ant to resign or be forced to do so is refused and dismissed for lack of proof.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">6. I order that the sum of =N=367,597.94 as stated on <i>Exh. C13 </i>be paid to the Defendant as his outstanding salary and pre-Pension Reform Act contribution. Respecting Tax and post Pension Reform Act pension deduction, the Defendant did not throughout the trial of this case adduce evidence to show that the Claimant did not make the necessary remittances to the appropriate government agencies. To therefore make the order respecting this as sought by the Defendant will tantamount to making an order without a basis.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">7. The counter claim for cost of action of One Million Naira (=N=1,000,000) which includes professional and filing fees in respect of this suit is refused and dismissed for being an affront to public policy and unethical.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">The terms of this Judgment are to be complied with within 30 days from today.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left:.25in;text-align:justify"><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif"">____________________<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin: 0in 0in 0.0001pt; text-align: center;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Hon. Justice J. D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom: 0.0001pt; text-align: center;"><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">Presiding Judge<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><br></p>