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<p class="MsoNormal" style="text-align:justify"><u>REPRESENTATION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">S. E. Elema, with Miss J. U. Ihionu, for the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">No legal representation for the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>JUDGMENT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">On 19<sup>th</sup> May 2014, the claimant took up a complaint against the defendant praying for –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="margin-left:39.0pt;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that by engaging in a personal business through the use of his company to do business with the claimant, the defendant breached the terms of clauses 9.1 and 9.2 of his contract of employment with the claimant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="margin-left:39.0pt;mso-add-space: auto;text-align:justify;text-indent:-.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Damages in the sum of USD500,000 for the said breach.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="margin-left:39.0pt;mso-add-space:auto; text-align:justify;text-indent:-.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The sum of N2,500,000 being the cost of this suit and solicitor’s fees.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Accompanying the complaint are the statement of complaint (facts), list of witnesses, sworn statement of witness, list of documents and copies of the documents, Exhibits C1 to C12(a), to be relied upon.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant did not file any defence process. In fact, all through the hearing of the case, the defendant did not enter any appearance nor was he represented by counsel. The claimant has specifically applied for substituted service for the service of court processes on the defendant. In effect, this is an undefended case, though subject to the minimal evidence rule which enjoins the claimant to still prove its case despite the fact that the defendant did not defend the case. See Order 9 of the National Industrial Court (NIC) Rules 2007, <i>Mr. Lawrence Azenabor v. Bayero University, Kano</i> [2011] 25 NLLR (Pt. 70) 45 CA at 69, <i>Ogunyade v. Oshunkeye</i> [2007] 4 NWLR (Pt. 1057) 218 SC at 247 and <i>Attorney General Osun State v. NLC</i><i> & ors</i> [2013] 34 NLLR (Pt. 99) 2<span lang="EN-GB">78</span> NIC.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">At the trial, therefore, Oghenekaro Ologe, the IT Manager of the claimant, gave evidence for the claimant as CW. Thereafter, given that the defendant made no appearance in court despite all opportunities given to him for this by the Court, the claimant was permitted by the Court to file and serve its final written address, which the claimant did. The claimant’s final written address is dated and filed on 8<sup>th</sup> April 2015, which was adopted on 10<sup>th</sup> May 2016.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The case of the claimant is that the defendant came into the employment of the claimant in July 2010 as Group IT Manager of the claimant, and a contract of employment was duly executed by both parties. That by clause 9.1 of the said contract of employment the defendant was prohibited from engaging in any other business whilst in the employment of the claimant. That clause 9.2 further prohibited the defendant from being part of any business which is a supplier or customer of the claimant or any of its subsidiaries. That sometime in 2010 the claimant engaged the services of a company called Pyrasoft Nigeria Limited for the supply of computer software to the claimant and its subsidiaries, a company which unknown to the claimant was owned by the defendant. That the several business transactions between the claimant and the said Pyrasoft Nigeria Limited continued until sometime in 2013 when the claimant suspected a connection between the defendant and Pyrasoft Nigeria Limited, a suspicion that was later confirmed through a search report the claimant obtained from the Corporate Affairs Commission (CAC) which revealed that the defendant is both a Director and majority shareholder of Pyrasoft Nigeria Limited.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then framed a sole issue for the determination of this Court, namely –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Whether by the facts of this case, the defendant breached the contract between him and the claimant, thus entitling the claimant to damages.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, parties are bound by the contract they voluntarily entered into, citing <i>AG, Rivers State v. AG, Akwa Ibom State</i> [2011] 8 NWLR (Pt. 1248) 3 at 83, <i>Best (Nig.) Ltd v. BH (Nig.) Ltd</i> [2011] 5 NWLR (Pt. 1239) 95 and <i>Beta Glass Plc v. Epaco Holdings Ltd</i> [2011] 4 NWLR (Pt. 1237) 223. That the instant case reveals that a contract was entered into by the claimant and the defendant and duly executed, as evidenced by Exhibit C1. That where an agreement is expressly in writing as in the instant case, courts are enjoined to not look beyond the express provisions of the agreement to determine what its express terms are. In other words, the rule is one of sanctity of contract, referring to <i>AG, Rivers State v. AG, Akwa Ibom State</i> (<i>supra</i>), <i>Ibama v. SPDC (Nig.) Ltd</i> [2005] 17 NWLR (Pt. 954) 369 and <i>Sona Breweries Plc v. Peters</i> [2005] 1 NWLR (Pt. 908) 478.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On whether the defendant breached the contract between the parties, the claimant referred to clauses 9.1 and 9.2 of the contract of employment between the claimant and the defendant, which prohibited the defendant from engaging in any business at all while in the employment of the claimant. That the fact that the defendant engaged the services of Pyrasoft Nigeria Limited to supply the claimant with software and obtain licenses on its behalf has been established. That several business transactions between the claimant and Pyrasoft Nigeria Limited, evidenced by the various requests for payments and the subsequent approvals by the claimant (Exhibits C2 – C10), confirm this assertion. Furthermore, that Exhibits C12 and C12(a) have also established a connection between the defendant and Pyrasoft Nigeria Limited. That the defendant’s part-ownership of the said company is not in doubt as the clear evidence before the Court has not been controverted. That the one and inevitable conclusion from the foregoing is that the defendant, through his company (Pyrasoft Nigeria Limited), did not only engage in another business, but also supplied software to the claimant and its subsidiaries thereby breaching clause 9.1 and 9.2. That the defendant failed to abide by the provisions of his contract of employment with the claimant and failed to perform the entire obligations he undertook. That this is breach of contract as defined in <i>Best (Nig) Ltd v. BH (Nig) Ltd</i> (<i>supra</i>). The claimant then urged the Court to hold that the case for breach of contract has been established and as such the claimant is entitled to damages.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the award of damages, though at the discretion of the Court, is nevertheless a natural consequence of breach, citing <i>Beta Glass Plc v. Epaco Holdings Ltd</i> (<i>supra</i>). That in an action for breach of contract, the remedy is often damages, citing <i>Nwaolisah v. Nwabufoh</i> [2011] 14 NWLR (Pt. 1268) 600 and <i>Best (Nig) Ltd v. BH (Nig) Ltd</i> (<i>supra</i>).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on to remind the Court that its case is undefended as the defendant did not enter appearance, neither did he file any defence to this action. That given this fact, the Court is enjoined to rely on the unchallenged and uncontroverted evidence before it in arriving at a decision, relying on <i>MIN Ltd v. MFKWA Ltd</i> [2005] 10 NWLR (Pt. 934) 645, <i>Ibama v. SPDC (Nig) Ltd</i> (<i>supra</i>), <i>State v. Oladotun</i> [2011] 10 NWLR (Pt. 1256) 542 at 559 and <i>Akiboye v. Adeko</i> [2011] 6 NWLR (Pt. 1244) 415 at 441. The claimant then submitted that from the totality of the credible evidence before this Court, which is admitted, the claimant has established a case for breach of contract against the defendant. The claimant then concluded by urging the Court to grant all the reliefs it claims.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>COURT’S DECISION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">I heard learned counsel and considered all the processes filed in this suit. The claimant’s case revolves around the definition of clauses 9.1 and 9.2 of Exhibit C1, the contract of employment between the parties. Clause 9 dealing with “Time and attention’ provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">During the continuance of his employment under this agreement the GITM shall unless prevented by Incapacity, devote to the business of the Company all the time and attention that the GITM will deem to be necessary to properly perform his duties and obligations under this contract.<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The GITM shall not without the prior consent of the GDFin or his representative:<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">9.1 engage in any other business at all,<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">9.2 be concerned or interested in any other business of a similar nature to or competitive with that carried on by the Company or any of its subsidiaries or which is a supplier or customer of the Company or any of its subsidiaries in relation to its goods or services.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">GITM means Group IT Manager given that at page 2 of Exhibit C1 the defendant who is said to be domiciled in Atlanta, United States of America, is described as being employed as Group IT Manager (GITM); and by clause 1.3 under definitions and interpretation, “the Group Director Finance (GDFin) means the Group Director for Finance and Shared Services for the time being of the Company or his/her representative”. The argument of the claimant is that the defendant breached clauses 9.1 and 9.2, hence the claim for damages in this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">A look at the exhibits will show that by Exhibits C3, C5, C6, C7 and C9, Pyrasoft presented invoices to the claimant for payment covering services rendered; and by Exhibits C4, C8 and C10 the defendant gave approval for the payment to Pyrasoft Nigeria Ltd of sums of money for work done and services rendered. Exhibit C11 dated 11<sup>th</sup> July 2013 is an invoice billed to Pyrasoft, Inc. but for the attention of Ibrahim Akar, presumably the defendant in this case. Exhibit C12 is the particulars of persons who are first Directors of Pyrasoft (Nig) Ltd (Form CAC 7) showing Akar Ibrahim Ahmed to be Director of Pyrasoft (Nig) Ltd; while Exhibit C12(a), the Statement of Share Capital and return of Allotment (Form CAC 2) of Pyrasoft (Nig) Ltd, shows that Ibrahim Ahmed Akar to be a majority shareholder of Pyrasoft (Nig) Ltd. All of these exhibits show that the defendant has links with Pyrasoft (Nig) Ltd and Pyrasoft, Inc., both of which had business dealings with the claimant in terms of work done and services rendered. To this extent, the defendant is in breach of clause 9.2 which prohibits the defendant from being concerned or interested in any business “which is a supplier or customer of the Company or any of its subsidiaries in relation to its goods or services”; and I so find and hold. This means that relief a), i.e. a declaration that by engaging in a personal business through the use of his company to do business with the claimant, the defendant breached the terms of clauses 9.1 and 9.2 of his contract of employment with the claimant, claimed by the claimant is grantable; and I so grant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The problem is whether reliefs b) and c) are grantable. Relief b) is for damages in the sum of USD500,000 for the said breach, while relief c) is for the sum of N2,500,000 being the cost of this suit and solicitor’s fees. Two issues arise here: whether the claim for these sums has been proved; and whether the claimant is entitled to be paid damages in a foreign currency. As regards the issue of paying damages in foreign currency, it is now clear that though older authorities like <i>Aluminium Ind. Akten v. FBIR</i> [1971] LPELR-437(SC) suggested that damages can only be awarded in Nigerian currency, newer authorities suggest otherwise. See <i>Koya v. UBA Ltd</i> [1997] 1 NWLR (Pt. 481) 251 and <i>Harka Air Services (Nig.) Limited v. Keazor Esq.</i><span style="font-family: "Verdana","sans-serif";color:#009933;mso-bidi-font-weight:bold"> </span>[2011] LPELR-1353(SC). The contention in <i>Harka</i> was whether the court can award judgment in foreign currency when the contract the subject-matter of the suit is in Naira (the Nigerian Local Currency) and the evidence in support of the claim.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">This leaves out the issue whether the claimant has proved reliefs b) and c). It would seem from <i>Harka</i> that breach of a legal duty needs to result in proved injury before damages can be awarded. There is no doubt that the defendant breached especially clause 9.2 of Exhibit C1, but the question is the injury suffered by the claimant to warrant the claim for USD500,000. How did the claimant even arrive at the sum of USD500,000? This Court was not shown. The claimant is not in any way arguing that the work and services rendered by the defendant through Pyrasoft is overvalued. All the claimant argued is that once there is a breach of contract then damages must be awarded. Since this Court has not been shown how the claimant arrived at the sum of USD500,000 as damages, I cannot grant same. Relief b) accordingly fails and so is dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Relief c) is for N2,500,000 being cost of the suit and solicitor’s fees. To start with a claim by a claimant for legal fees he paid to his solicitor is not one that is ordinarily granted by a Court. See <i>Ihekwoaba v. African Continental Bank Ltd</i> [1998] 10 NWLR (Pt. 571) 590 at 610 – 611 and <i>Nwanji v. Coastal Services (Nig) Ltd</i> [2004] 11 NWLR (Pt. 885) 552. Then <i>Guinness (Nig) Plc v. Nwoke</i> [2000] LPELR-6845(CA); [2000] 15 NWLR (Pt. 689) 135 held that it is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the other party; as such it was absolutely improper to allow the cross-appellant to pass his financial responsibility couched as ‘special damages’ to the cross-respondent. There are, however, other authorities that suggest that there can be recovery for this head of claims if claimed and proved as special damages. In other words, it must be specifically pleaded as special damages and must be proved by credible and cogent evidence. See <i>Balogun v. Amubikanhan</i> [1985] LPELR-FCA/I/129/82, <i>Divine Ideas Ltd v. Umoru</i> [2007] All FWLR (Pt. 380) 1468, <i>Shell Petroleum Development Company Nigeria Ltd v. Okonedo</i> [2008] 9 NNILR (Pt. 1091) 85 and <i>Intercontinental Bank Ltd v. Brifina Ltd</i> [2012] 13 NWLR (Pt.1316) 1. Howsoever way it is seen or taken, the claimant has not shown to this Court how it arrived at N2,500,000 as cost and solicitor’s fees. Relief c) accordingly fails and so is hereby dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">For the avoidance of doubt the claimant’s case succeeds only in terms of relief a) which has already been granted.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Judgment is entered accordingly. I make no order as to cost.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center">……………………………………<o:p></o:p></p> <p class="MsoNormal" align="center" style="text-align:center">Hon. Justice B. B. Kanyip, PhD<o:p></o:p></p>