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JUDGMENT Introduction and claims The claimant filed this complaint against the defendant on 16th March 2015 seeking the following reliefs: a. The sum of N25 Million (Twenty Five Million Naira only) as general damages for the illegal exposure of the assets and intellectual properties of the claimant. b. Any and all other sums obtained or yet to be obtained by the defendant directly or indirectly in relation to and connected with all business transactions relating to the Telecommunications business in Nigeria and West Africa, in accordance with the terms of his contract. c. A perpetual injunction restraining the defendant from conducting any other business directly or indirectly connected to the Telecommunications industry in Nigeria and West Africa in accordance with the terms of his contract. d. Interest at the sum of 21% per annum from the date of commencement of this action till judgement. e. Interest at the sum of 7.5% per annum thereafter. Accompanying the complaint is the statement of facts, witness statement on oath, copies of documents. The defendant filed a statement of defence together with the accompanying processes on 7th October 2015. The claimant filed a reply on 5th April 2016. Case of the claimant The claimant’s case on the pleadings is that it is a company registered in Nigeria, and whose main business is in Telecommunications in Nigeria; and the defendant is its former employee. The claimant stated that the defendant voluntarily executed the employment contract dated 1st September, 2008 and it was given to him immediately. The claimant stated that the defendant resigned from its employment on 3rd April, 2014 and that he is in breach of the employment terms and conditions of his contract. The claimant averred that by Article 8 of the employment contract, the defendant is not authorised to seek for other employment, consultancy and other services with its suppliers, customers and its competitors; or engage in any similar business or compete with its business or operations directly or indirectly or through a 3rd party, during the period of the employment contract and for a minimum period of 5 years after its expiration. The claimant further averred that the contract also provides that if the employee is an expatriate and his employment has been terminated for any reason, or if he resigned or the employment contract has expired, he is not to stay in the country or visit the country for work or other business related trips or paid services for the minimum period of 5 years from the date of termination/resignation/expiry of employment contract. The claimant further stated that the defendant obtained a Promo License for a company known as Avyra Systems Limited, which is a competitor using its resources; and that owing to the size and complexity of the claimants’ company, it has been difficult to forewarn all the various branches from which he would pursue his fraudulent business. The claimant stated that the defendant has continued to make use of its confidential material to deceive unwary companies; and that the defendant also deleted sensitive confidential information on his company laptop without any authorization to do so in a bid to assist the competitors and compromise the intellectual property and assets of the claimant, including all company accounts. The claimant averred the Chairman never gave his approval for the defendant to blackmail Avyra System Ltd nor promised the defendant 10% of profit. That it has written to the defendant warning him to restrain from such activities and to respect the contracts with its clients, but that the defendant ignored all warnings. The claimant stated that it was forced to bring this action in order to protect its intellectual property and other assets illegally misused by the defendant for his personal gain. The claimant stated that the terms contained in the contract are not unreasonable and that the defendant is not an ECOWAS citizen. The claimant called Fabian Ewendy (CW) Head of Administration to testify on its behalf. He adopted his statements on oath and relied on the admitted documents. Under cross-examination, CW told the court that Avyra System is not one of their competitors. He told the court that one of the functions of the defendant is to provide services for companies who want to obtain a license from the NCC by helping them meet the requirements of the NCC. CW told the court that any person registered with the NCC can provide the service, and that since the defendant left the service they have been continued to operate the business providing the service. CW told the court that he did not know if the defendant took away anything that will prevent them from carrying on with the business. CW confirmed that the defendant handed over the company’s property when he left. He said he did not know if the defendant left with anything that belongs to the claimant company, and that he did not know if the claimant obtained expatriate quota. CW told the court that he is aware that the defendant is a citizen of Niger Republic, and that the Chairman was aware of the Avyra contract. He told the court that the chairman lives in Dubai and has visited Nigeria only once in the last five years. CW said he did not know why the parties who are uncle and nephew are fighting. The claimant then closed its case. Case of the defendant The defendant stated that the major business of the claimant in Nigeria is to act as a commissioned agent to foreigners wishing to invest in any sector of the Nigeria economy, including Telecommunications. He stated that the claimant carries on business by laying bogus claims about its contacts and connections in Nigeria, and then offering logistic services like visa, transportation, hotel bookings, renting of office, securing necessary permits for the business in return for a percentage in the investors business and fees for services. The defendant averred that he signed a contract on 1st September, 2008 but a copy was never given to him and he has not breached the terms of the contract between him and the claimant. The defendant averred that clause 8 in the employment contract referred to in the statement of claim are unreasonable and unnecessary restraint on his trade in that they are wider and greater than are reasonably necessary for the protection of the claimant’s interest and they are contrary to public policy, and illegal and void and of no effect. The defendant averred that he is not an expatriate, and was resident in Nigeria before the claimant employed him and as such clause 7 of the contract does not apply to him. The defendant stated that he is an ECOWAS citizen from Niger Republic; his father was born there in 1946 and his mother was born in Nigeria in 1950. The defendant stated that in the course of living in Nigeria, he has pursued an active social life which has earned him treasured friendship with many people including a Director in Avyra Systems Limited. He further stated that when the Director requested his help for a fee in obtaining a promotional licence from an Agency of the Federal Government, he used his good offices to render the said assistance. The defendant stated that when the claimant’s Chairman learnt of his desire to help Avyra Systems Limited he gave his approval and requested him to blackmail Avyra Systems Limited into giving the claimant company 20% equity in the shares of that company upon a promise to pay him 10% of any profit arising from the illegal demand. The defendant stated that he refused to be used as a tool of blackmail and since then the claimant and its Chairman have descended on him to strangulate him economically and liquidate him. In furtherance of this, they have threatened him, levelled spurious and frivolous allegations against him to Government agencies, attempted to deport him from Nigeria, Benin, Togo, Ghana and Niger Republic, and written to his father and other relations. The defendant averred that the claimant does not have any intellectual property and or trade secret and its business of offering logistic support to foreign investors as a commissioned agent does not create any intellectual property and or secret that can be exploited by any other person. The defendant averred that he has not earned any money as a result of any links and as such the claimant is not entitled to any claim for damages. He stated that the chairman and alter ego of the company, Eric Chamchoum lives in Lebanon and Dubai and only visited Nigeria for Five (5) days in the last ten years. The defendant stated that upon his resignation, the Administration Manager of the Company requested him to delete all data belonging to the company from his laptop, and he and handed over all property of the company in his possession to the company. The defendant stated that he has suffered various forms of assault on his fundamental rights, including detention, and has been constrained to hide from the rampaging determination of the claimant to liquidate him and asserts that this law suit is one of the tools employed by the claimant to achieve his goals. That in the course of defending himself against the barrage of attacks unleashed on him, he retained the services of the law firm of Bank Oki, Oyesanya & Co. and Uche C Ihediwa & Co. to defend him. The defendant (DW) adopted his statement on oath. It which was in terms of the pleadings and he relied on his documents. Under cross-examination, he identified exhibit C1 as his employment contract. He confirmed that his address on the contract is in Lebanon, and that his salary was paid into his account in Lebanon while his allowances were paid in Nigeria. DW also confirmed in writing that he is to give the claimant three months notice and admitted that he did not give the required notice before he voluntarily resigned. DW told the court that the laptop was his and that the defendant asked him to surrender the documents and correspondences in the laptop which he did by transferring them to a hand disc that he gave to the defendant’s Administrator before he deleted them all from his laptop. He said he did not accompany it with a memo because it was not his responsibility to write a memo. DW told the court that he is not a Director or shareholder in the claimant but that he was involved in policy formulation. DW informed the court that his employment was full time and permanent, and that he was not allowed to work for any other company. DW said he did not receive any payments from the companies called Channels IT, Upstream, and Avyra while in the claimant’s employment. He confirmed that he received a payment from Avyra for a service he rendered after he left the claimant’s employment. DW told the court that the Nigerian Immigration Service investigated him and Interpol invited him. He said they found that he had two International passports. DW informed the court that Mr Eric Chamchoum, the Chairman of the claimant is his uncle, and he stated that he does not have any agreement with him in respect of commissions or percentages with regards to Avyra Systems Limited. DW told the court that he is not an expatriate and that he is still in Nigeria doing business. The defendant then closed his case. Final address Learned counsel to the defendant submitted the following issues for determination: i. Has the claimant established ownership of an intellectual property and or trade secret which the defendant has breached? ii. If the answer to issue 1 is yes, has the claimant proved its entitlement to damages? He submitted that the claimant has not shown by its pleadings or any evidence that it owns any intellectual property or trade secrets it is seeking to protect by this action. He submitted that clause 8 is a restrictive covenant that is prima facie unenforceable and void in the absence of special circumstances justifying it citing Nordenfelt V Nordenfelt [1984] AC 535, Andreas I.I. Koumoulis V Leventis Motors Ltd (1976) 2 F.R.C.62, Harris & Russel Ltd V Slingsby [1973] 1 CR. Learned counsel submitted that the length of time 5 years, the geographical area West Africa and the fact that there is no range of product all go to show that clause 8 is unenforceable. It was his further submission that there is no evidence to show that the defendant made the sum of N750,000.00 and that the defendant is not entitled to damages. He then urged the court to dismiss this case. Learned counsel to the claimant submitted the following issues for determination: 1. Whether by his conduct, the defendant has compromised the claimant’s business interest and acted in breach of the Employment Contract between the parties? 2. Whether the claimant has proved its Claim and entitled to Judgement? He submitted that the defendant owes the claimant a duty of fidelity to serve honestly and faithfully citing Rob V Green [1895] 2 OB 315 CA, Bents Brewery Co Ltd V Hogan [1945]2 AER 570. He submitted that CW admitted that he rendered services to the claimant’s competitor Avyra Systems Ltd and was paid a commission. Learned counsel then submitted that the claimant is entitled to damages and a perpetual injunction to protect the claimant’s legal right citing Kotoye V Central Bank Of Nigeria [1989] NSCC 238 at 250. Decision I have carefully considered all the processes filed, the documents in support, authorities and arguments canvassed by counsel in the final address. The issues for determination in this judgement are: (i) whether the defendant has breached the terms of his employment contract; (ii) whether on the pleadings and evidence, the claimant ought to be entitled to its claims. It is trite law that whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist. The burden of proof of establishing the terms of the contract of employment is on the claimant who wants judgement to be entered in its favour. It is the law that once a party asserts, he/she must prove the assertion. See section 131 (1) & (2) of the Evidence Act 2011, Elegushi v Oseni [2005] 14 NWLR (Pt 945) 348. The claimant has placed before the court the defendant’s contract of appointment (exhibits C1), Permit for Avyra Systems Limited (exhibit C2), emails (exhibit C3 and C4). The claimant has asserted that the defendant breached Article 8 of the employment contract and this is reproduced below as follows: The Employee shall not be authorized to get any employment dealings association, partnership, agreement fulltime or just on part-time basis, “directly or through 3rd party in any form, manner and/or nature, paid or otherwise, including but not limited to consultancy and other services with the suppliers, customers and competitors of The Company nor the associates, shareholders, partners, subsidiary company/ies of the suppliers, customers and competitors of The Company. The Employee shall not be authorized to engage in any business similar or competing with the business or operations of the company directly or indirectly through representation or other arrangement directly or through 3rd party, during the validity period of this contract and hereafter for a period of 5 years. If the Employee is an expatriate and his employment has been terminated for any reason, or if he resigned or the employment contract has expired, he shall not stay in the country of employment or visit the country for work or other business related trips or paid services for the minimum period of 5 years from the date of termination/resignation/expiry of employment contract. The Employee shall not disclose to any 3rd party any information relating to Company’s business which he may obtain in his/her capacity as “The Company’s Employee”. It is the law that when parties freely enter into a contract, they are bound by the terms of the contract. See Isheno V Julius Berger Nig Plc [2008] 6 NWLR (Pt 1084) 582 at 609, Hilary Farms Ltd VMV ‘Mahtra’[2007] 14 NWLR (Pt 1054) 210 at 230 – 231, A-G Nasarawa State V A-G Plateau State [2012] 10 NWLR (Pt 1309) 419 at 450. The claimant has alleged that the defendant obtained a promo license for a company called Avyra Systems Limited that is its competitor, and using its own resources. The defendant has admitted this in his pleadings and in his deposition. He has also admitted in his oral evidence and that he received payment from Avyra Systems for a service he rendered after his employment. Paragraphs 10 and 11 of the defendant’s deposition are a replica of paragraphs 9 and 10 of the pleadings. The pleadings are reproduced: 9. The defendant avers in reaction to paragraph 8 of the statement of claim that in the course of living in Nigeria, he has pursued an active social life which has earned him treasured friendship with many people including a Director in Avyra Systems Limited. Consequently when the said Director requested his help for a fee in obtaining a promotional licence from an Agency of the Federal Government, the defendant used his good offices to render the said assistance. 10. Further to paragraph 9 above, the defendant avers that when the claimant’s Chairman learnt of the defendant’s desire to help Avyra Systems Limited he gave his approval and requested the defendant to blackmail Avyra Systems Limited into giving the claimant 20% equity in the shares of that company upon a promise to pay the defendant 10% of any profit arising from the illegal demand. The defendant refused to be used as a tool of blackmail and hell was let loose. The defendant shall found on e-mails exchanged between the Managing Director of the claimant, Mr. Eric Chamchoum and the defendant. The law is settled that parties are bound by their pleadings, see Woluchem V Guchi [1981] 5 SC 291; and there is no burden in law on the claimant to prove any fact admitted by the defendant, see section 123 of the Evidence Act 2011 and Tijani Jolasun v. Napoleon Bamgboye [2010] 18 NWLR (Pt. 1225) 285. There is no evidence that the claimant’s Chairman gave his approval to the defendant or asked him to blackmail Avyra Systems. Rather, the claimant’s Chairman in exhibit C3 enquired from the defendant whether he was working for Avyra Systems and receiving commissions. He asked him to “come clean and not hide anything”. I find that the defendant while in the claimant’s employment rendered a service to Avyra Systems, a competitor of his employer for a fee. This is in breach of the first paragraph of Article 8 of the employment contract; and I so hold. This entitles the claimant to an award of general damages. I hereby apply the provisions of section 19 (d) of the National Industrial Court Act 2006 and award the sum of N600,000.00 (Six Hundred Thousand) to the claimant as general damages for the breach of the terms of the employment contract. The claimant is to pay this sum within 30 days. Thereafter, the sum will attract interest at the rate of 10% per annum. The defendant has argued that paragraph 2 of Article 8 reproduced above is a restrictive covenant that is unenforceable. I agree with defence counsel that this is a restrictive covenant. Put another way, it is a clause in restraint of trade usually designed to stifle competition from ex-employees. The doctrine of restraint of trade holds that prima facie such an agreement is void unless the employer can show it is reasonable. The clause has restrained the claimant from remaining in Nigeria or visiting Nigeria for work or other business related trips or paid services for a minimum period of 5 (five) years from the date of his resignation. I find the length of time the defendant is barred from making use of his skills and general knowledge in the telecom industry in Nigeria to be detrimental to his interest. In Herbert Morris v Saxelby [1916] 1 AC 688 at 699 the Appeal Court per Lord Atkinson stated as follows: It is in the public interest that a man should be free to exercise his skill and experience to the best advantage for the benefit of himself and of all others who desire to employ him. While it is proper that confidential information and trade secrets of the clamant should be protected, it is equally proper that the defendant should be permitted to earn a living, practice and exercise the skills and knowledge he has legitimately acquired. A covenant that restricts the defendant from visiting Nigeria for a minimum of 5 years for employment or business after his resignation from the claimant as this clause does, I find to be unreasonable in terms of time and width. See Commercial Plastics Ltd v Vincent [1965] 1 QB 623, Oswald Hickson Collier & Co v Carter-Ruck [1984] 2 WLR 847. I hold that the defendant is not bound by this restrictive covenant. It is void for unreasonableness in terms of time and width. The defendant is not precluded from taking up employment or doing business in Nigeria. There is no evidence of the intellectual property and assets of the claimant that the defendant is allegedly illegally using; neither is there evidence that the defendant compromised the intellectual property and assets of the claimant. His uncontroverted evidence is that the laptop he used for the claimant’s business belonged to him, and in the process of his exit from the claimant’s employment, he was asked to surrender the documents and correspondences in the laptop which he did by transferring them to a hand disc that he gave to the defendant’s Administrator before deleting them from his laptop. I hold that the defendant did not breach the third paragraph of Article 8. Consequently, reliefs b and c sought by the claimant must fail. The defendant has not adduced evidence that he is an ECOWAS citizen. The evidence before the court as stated in his contract of employment is that he holds a passport number RL0212074 and he resides in Lebanon. In the absence of evidence in proof of his ECOWAS citizenship, I hold that the defendant is not an ECOWAS citizen. For all the reasons given above, the claimant’s case partially succeeds. Costs of N50,000.00 awarded the claimant. Judgement is entered accordingly. _____________________________ Hon Justice O.A.Obaseki-Osaghae