IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS
DATE: SEPTEMBER 27, 2018
SUIT NO: NICN/LA/396/2015
BETWEEN
7th Heaven Bistro Limited-Claimant
AND
Mr. Amit Desphande – Defendant
REPRESENTATION
B.A. Eneremadu for the Claimant.
Oludare Falana for the Defendant.
JUDGMENT
1. Introduction & Claims
On 10/8/15, the Claimant approached this Court via his Complaint, statement of facts and all other frontloaded processes and sought the following reliefs –
1. A declaration that the defendant’s return to Nigeria in 2014 to take up employment with the Genesis Group or any other company before the expiration of three (3) years from the date of cessation of his employment with the claimant is breach of the restrictive covenant in paragraph 6 of the Executive Employment
Contract between the Claimant and the Defendant, which restrictive covenant is still valid and binding on the Defendant.
2. An Order of the court for the specific performance of the restrictive covenant by the Defendant.
3. An order of the court restraining the Defendant from continuing to act in breach of this restrictive covenant by continuing to remain in Nigeria and in the employment of the Genesis Group or any other company until the expiration of three (3) years from the date of cessation of the Defendant’s employment with the Claimant.
4. =N=10,000,000.00 specific and General Damages against the Defendant for breach of contract.
Particulars of Special Damage
Cost of obtaining the defendant entry visa to Nigeria in 2014.- =N=200,000.00
Cost of obtaining the defendant’s expatriate quota, residence permit, working permit, etc. – =N=75,000.00
Cost of defendant’s flight ticket from India in 2014 and back. -=N=220,000.00
Solicitors fee -=N=1,000.000.00
TOTAL -=N=1,495,000.00
General Damages-=N=8,505,000.00
GRAND TOTAL-=N=10,000,000.00
The Defendant entered an appearance on 10/6/16 and filed his statement of defence together with all the requisite frontloaded processes. On 28/9/16 the Claimant filed a Reply to the statement of defence.
2. Case of the Claimant
Claimant opened its case on18/1/16. It called one Olokodana Bamigboye as its lone witness. Witness adopted his witness deposition dated 10/8/15 as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1-Exh. C5.
The case of the Claimant is that it is a limited liability company, duly registered in Nigeria and carrying on business at Plot 273B, Kofo Abayomi Street, Victoria Island, Lagos; that the Defendant is an Indian and an ex-staff of the Claimant who was employed as Restaurant Manager of the claimant in the Claimant’s Restaurant at Plot 273B, Kofo Abayomi Street, Victoria Island, Lagos; that prior to the defendant’s employment with the Claimant, the Defendant and the claimant’s Managing Director had series of negotiations before they (the defendant and the claimant’s Management) agreed on the terms and conditions of the defendant’s employment with the Claimant; that following the agreement of the parties on the terms, the Claimant and the Defendant entered into an Executive Employment Contract, employing the Defendant as an Expatriate as the Claimant’s Restaurant Manager to work at the Claimant’s restaurant; that prior to the execution of this agreement and the commencement of the Defendant’s employment with the Claimant, the Defendant was residing in India and the Defendant had never been in Nigeria before he was employed by the Claimant; that the Claimant’s Managing Director executed the Executive Employment contract (Expatriate) on 2nd December 2013 and signed all the pages of the contract before it was sent to the Defendant and the Defendant also executed the Agreement on 12/1/14 and also signed all the pages of the contract in confirmation of the Defendant’s Agreement with the terms and conditions of this employment; that one of the terms of the Executive Employment Contract (Expatriate) was that upon termination of this contract, or the employee resigning for whatsoever reason(2), the shall not accept employment with any other Employer in Nigeria or in the same line of business as the company and/or its shareholders outside of Nigeria for a period of three (3) years from the date of termination or resignation as the case may be and during the term of his employment, the employee shall not be entitled to carry on any, business or occupation directly or indirectly.
It is also the case of the Claimant that it incurred a lot of expenses on processing the defendant’s entry visa to Nigeria and obtaining the necessary permits for the defendant to live and work in Nigeria at the Claimant’s restaurant; that notwithstanding the Agreement and in clear violation of the restrictive covenant, the Defendant, on arrival in Nigeria, started engaging in other businesses and also searching for other companies to work, including companies engaged in the same line of business with the Claimant; that upon the Claimant’s Management’s discovery of the antics and negative activities of the Defendant, he was immediately confronted with the facts of his negative activities against the Claimant; that the Defendant denied it and started being rude and disobedient to the Management of the Claimant in furtherance of his game plan; that Defendant suddenly started making plans to leave the Claimant’s for another company in Nigeria, called Genesis Group, with interest in various areas of business including the kind business operated by the claimant; that while still in the Claimant’s employment, the Defendant was using the Claimant’s restaurant as a forum to create his own customer base by obtaining and keeping the names, addresses and contact information of the Claimant’s valued customers; that Defendant then purportedly resigned his appointment with the Claimant in 2014 and lied to the Claimant’s Management that he was no longer interested in working in Nigeria and that he was going back to India to live and work; that the defendant’s purported resignation was rejected by the management of the Claimant and the Defendant’s appointment with the Claimant was thereafter terminated; that contrary to and in clear violation of the executive employment contract, the Defendant only went to India briefly and returned to Nigeria almost immediately to take up another employment with the Genesis Group; that the Defendant has been in Nigeria, working as a staff of the Genesis Group since 2014 in clear violation of his restrictive covenant; that before Defendant left the Claimant’s employment the Defendant had access to confidential information on the claimant’s concluded plan to open a similar restaurant in Port Harcourt and upon the Defendant’s return to Nigeria, in violation of the contract, the Defendant settled down in Port Harcourt to work for the Genesis Group to open a restaurant similar to that of the claimant, using the contact, confidential information, training, experience and vital information obtained from the Claimant; that the Defendant, upon his return to Nigeria, has been reaching out to the Claimant’s customer and suppliers, to leave the Claimant, running down the Claimant’s business, peddling false rumors and engaging in other negative behaviors to run down the Claimant’s business and that the foregoing action of the Defendant has adversely affected the Claimant’s business and the Claimant has suffered loss.
Under cross examination, the witness testified that he has been with Claimant for about 7 years; that he knows a bit about the Claimant; that as Admin Manager he is in charge of the overall administration of the company, employment and government issues; that the Defendant reports directly to him; that Defendant is a Restaurant Manager; that he was not there when Defendant signed the contract of service; that Defendant wanted to resign but Claimant terminated his employment; that he did not at any time see the letter of employment between Defendant and Genesis Group of Companies and that the claim of the Claimant is not speculative or gold digging.
3. Case of the Defendant
The case of the Defendant as revealed from the statement of defence filed is that the Claimant did not carry the Defendant along with respect to the drafting and the content of the Executive Employment Contract it entered with him; that the Claimant took advantage of the fact that it brought the Defendant to Nigeria for the first time and lured him into executing the contract; that even though after going through the Agreement, the Defendant raised some queries especially as it concerns the restrictive covenant to the effect that the Defendant will not take up another employment in the same line of Business for a period of three years, but the Managing Director of the Claimant assured him that it was not a material part of the contract, and that it is just a mere formality; that the Claimant’s plea to allow the Defendant procure the services of his own Solicitors to peruse the document was turned down by the Claimant on the pretense that it will attract extra fee and that it was not material; that the Claimant and the Defendant have a right under Clause 5 of the said Contract to terminate same by giving three months’ notice or three months’ salary in lieu of notice; that even though the Defendant sought to terminate the contract by resigning, his resignation was rejected by the Claimant in flagrant violation of the terms of the contract and in a rather bizarre twist, his appointment was terminated by the Claimant; that the Defendant was never at any time involved in negative activity, he was never confronted by the Claimant; that the Defendant was never rude and disobedient to the Management of the Claimant; that the Defendant never made plans to leave the Claimant for any other Company, though he had the plan to resign, but later the Claimant terminated his employment; that soon after the Defendant’s employment with the Claimant was terminated Defendant went back to India, his home country.
It is also the case of the Defendant that he was barely new in Nigeria and knew nobody and therefore it was practically impossible to create his own customer base as he never had my own Restaurant; that when the Defendant appointment’s was terminated by the Claimant the Defendant went back to India before he was offered employment by Genesis Group which has interest in various areas of businesses in Nigeria; that department where he presently works within the Genesis Group is outside the area of business interest for which he was employed by the Claimant i.e. (Management of a Restaurant); that the Defendant has not in any way violated any agreement and in addition states that his Solicitor responded to the allegations contained in the Claimant’s Solicitor’s letter; that Defendant presently works for Genesis Group, which has diverse interest in several areas of concern in business in Nigeria, but denies working in the area or line of business to that which he worked with the Claimant; that the Claimant having terminated the Defendant’s contract, cannot turn back and insist that the Defendant cannot take up other employment in Nigeria, having terminated his employment in flagrant violation of the terms of the contract; that the Defendant no access to confidential information as this does not cover his line of duty while in the employment of the Claimant; that the plan of the Claimant to obstruct and or deny the Defendant of taking up any employment in Nigeria is unjustifiable, inhuman, illegal, as it violates all known labour law and international best practices in labour and contravenes the Constitution of the Federal Republic of Nigeria and that the restrictive covenant upon which the Claimant anchored its case thereby seeking to deny him employment for three (3) years in Nigeria is an act of modern day slavery and same constitutes unfair labour practice.
At the trial of this case, the Defendant elected not to call or lead evidence in support of its defence. The defence is therefore for all intents and purposes deemed abandoned.
4. Submissions of learned Counsel
On 23/5/17, the Claimant filed its final written address and set down a lone issue thus – whether the Claimant has proved its case as to be entitled to the reliefs sought in this suit. Arguing this lone issue, learned Counsel submitted that there is no doubt that there is a binding contract between the parties; that the requirement of offer and acceptance were met citing Omega Bank Nigeria Plc v. O.B.C Limited (2005)1 S.C (Pt. 1) 49; that by bringing the Defendant to work as a Restaurant Manager in Nigeria, the Claimant incurred a lot of expenses in processing his entry visa, obtaining work permit, residential permit and other necessary permits for the Defendant to live and work in Nigeria and that all these amount to consideration on the part of the Claimant. Counsel submitted that the Defendant breached a fundamental term of the validly entered contract by failing to observe the restrictive covenant; that the concept of fundamental term insists that no person is allowed to take shelter under the provisions of an exemption clause to breach a fundamental term notwithstanding how wide the clause is expressed citing Oyewale v. Lawal (2008)37 W.R.N 132; that it is morally despicable for person who has benefited from an agreement to turn round in any way to contend that the agreement is null and void citing Sosan v. H.F.P Eng. Nigeria Limited (2003)43 WRN 147.
Learned Counsel added that the Defendant was invited from India by the Claimant to work in Claimant’s restaurant designed for Indian Cuisine which is very rare in Nigeria; that the operation involves certain trade secrets which should be protected and not exploited by the Defendant and that the position of the Defendant gave him access to confidential information or trade secrets as regards restaurant management, techniques and skills in cooking and presentation of food particularly the Indian Cuisine; that the clause in question in this case is reasonable in the circumstances citing Koumoulis v. Leventis Motors Limited (1973)11 S.C and that being an express term of the contract, the Defendant cannot waive same citing Lewis v. UBA Plc (2016)5 WRN 91 & Shell B.P Petroleum Development Company v. Jammal Engineering (Nig.) Limited (1974)4 S.C 33. Learned Counsel urged the Court to consider all processes and evidence admitted and find in favor of the Claimant.
The final written address of the Defendant was filed on 31/5/18. Learned Counsel set down 2 main issues for determination as follows – 1. Whether having regards to the totality of evidence placed before the Court, the Claimant was able to discharge the burden of proof so as to entitle it to the reliefs sought and 2. Whether a restrictive clause in a contract that constitutes unfair labour practice can be enforced. Learned Counsel attacked the case of the Claimant frontally from 2 main angles. Counsel submitted that Claimant has failed to adduce sufficient evidence in support of his case; that Claimant failed to prove that Defendant breached the restrictive covenant by taking up a similar employment within the 3 months after his employment was terminated citing Lawal v. Aliyu (2014) LPELR-24320 & Ojukwu v. Agupusi & Anor. (2014) LPELR-22683 and the Claimant failed to produce the letter of employment of the Defendant with Genesis Group. Learned Counsel further submitted that having terminated the employment of the Defendant the entire contract becomes null and void and of no further effect; that the restrictive covenant whereby an employee could not seek employment until after 3 years of resignation or termination or cannot work with another employer in the same line of business until after expiration of 3 years is an unfair labor practice and same is antithetical to international best practices in labor law citing Mariam v. University of Ilorin Teaching Hospital Management Board (2013)35 NLLR (Pt. 103) 40 & Adedotun v. UBN (2013)35 NNLR (Pt. 103) 139. Learned Counsel prayed the Court to dismiss this case in its entirety.
5. Decision
I have read and understood all the processes filed by learned Counsel on either side. I listened attentively to the oral testimonies of the witness called at trial and also watched his demeanor. In addition, I heard the oral argument of Counsel and carefully evaluated all the exhibits tendered. Having done all this, I narrow the issue for the just determination of this case to be thus –
1. Whether the restrictive covenant in this case constitutes unfair labor practice.
2. Whether the Claimant has proved its case to be entitled to the reliefs or some of the reliefs sought.
Restrictive covenants are not new phenomenon. They have been part and parcel of the law as far as Common law is concerned. Now does the restrictive covenant in this case constitute an unfair labour practice as argued by the Defendant? The provision which is contained in Clause 6 of Exh. C1 states thus –
Upon termination of this contract, or the Employee resigning for whatever reason(s), he shall not accept employment with any other Employer in Nigeria or in the same line of business as the Company and/or its Shareholders outside of Nigeria for a period of three (3) years from the date of termination or resignation as the case may be.
During the term of his employment, the Employee shall not be entitled to carry on any business or occupation directly or indirectly.
This is rather too restrictive. It more or less sought to place an employment embargo on the Defendant for a period of 3 years both within and outside of Nigeria
The bottom line of this case respecting issue 1 is the enforceability of Clause 6 of Exh. C1 which is the contract document alleged to have been voluntarily signed by both the Claimant and the Defendant. Simply put that clause restricted how, in what manner and the extent to which the Defendant may seek employment elsewhere upon leaving the services of the Claimant. Clauses as the one in the instant case are not unusual. They have found their ways into employment contract from time immemorial. They are often referred to as covenant in restraint of trade. Generally speaking, covenant as this is referred to or described as one in which a covenantor agrees with another party to restrict his liberty in the future to carry on trade, business, profession or calling with other persons not parties to the contract in such a manner as he chooses. It is simply some kind of agreed provision that is designed to restrain another’s trade. See Petrofina Great Britain v. Martin (1966) Ch. 146 & Tanksale v. Rubee Medical Centre Limited (2013)12 NWLR (Pt. 1369. Restraint of trade is a common law doctrine relating to enforceability of contractual restrictions on freedom to conduct business. It is said to be a precursor of modern competition law. Generally speaking, such a restraint is unenforceable as being contrary to the public policy of promoting trade and business unless the restraint of trade is reasonable to protect the interest of the purchaser of a business and hence void ab initio. If both parties to it agree to and did perform same, that is the end of it. But the Court will not assist either party to provide a platform for its enforcement. In an old English leading case of Mitchel v. Reynolds (1711), Lord Smith L.C said thus –
”… it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it on according to his own discretion and choice. If the law has regulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his freediscretion”.
In Nordenfelt v. Maxim, Nordenfelt Guns and Ammunition Co. (1894)A.C 535., a Swedish arms inventor promised on sale of his business to an American gun maker that he ”would not make guns or ammunition anywhere in the world, and would not compete with Maxim in any way”. Lord Macnaughten in that case stated inter alia that such a restriction is justified only if it is reasonable, that is, in reference to the interest of the parties concerned and reasonable in reference to the interest of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public. This was the Common Law position and which was prevalent until the decision in Herbert Morris Limited v. Saxelby (1916)1 A.C 688 where the Court for the first time held that there could exist certain circumstances where contract in restraint of trade are enforceable. Such circumstances are said to include (i) where such contracts were necessary to protect an employer’s legitimate competitive interest; (ii) where the enforcement of such contract was neither unreasonably burdensome to the employee nor harmful to the public interest; and (iii) where the time and geographical scope of the restriction is reasonable.
The Common Law position in relation to contract in restraint of trade would seem to have been followed even by Courts of other jurisdictions. For instance in most States in the United States of America no-compete covenants are viewed with suspicion by most Courts and will sparingly be enforced. Thus in BDO Seidman v. Hirsh Berg 690 N.Y. 2nd 854 (Ct. App.1999), the Court held that a no-compete covenant would be enforced provided it is reasonable and that a restraint is reasonable if it (i) is not greater than is required for the protection of the legitimate interest of the employer; (ii) does not impose undue hardship on the employee and (iii) is not injurious to the public. In India, any agreement which restrains anyone from carrying on a lawful profession, trade or business is void to that extent. See Indian Contract Act, 1872. Thus in Taprogge Gesellschaft MBH v. IAEC India Limited (1988)AIR Bomm, the Court held that a restraint operating after termination of the contract to secure freedom from competition from a person who no longer worked within the contract, was void, even if such a covenant was valid under German law and that it could not be enforced in India. See also Gujarat Bottling Company Limited v. Coca Cola Co. (1995)5 S.C 545 & Anoop Narayanan; Validity of Non-Compete Covenants in India, www.majmudarindia.com. Visited on 25/2/16.
Under the Nigerian law, the position is a reflection of the Common Law heritage of the country. It is as stated by the Supreme Court in Andreas I. Koumoulis v. Leventis Motors Limited (1973) 11 S.C 100, (1973)All NLR 789 that all covenants in restraint of trade are prima facie unenforceable and that they are only enforceable if they are reasonable with reference to the interest of the parties concerned and the public at large. See also C.F.A.O. v. George Luba (1918)3 N.L.R 67, Dr. Shirish Tanksale v. Rubee Medical Centre Limited (2013) LPELR-21445 (CA), Afropim Engineering Construction Nigeria Limited v. Jacques Bigouret (2012) FWLR (Pt. 622) 170 and Hygeia HMO v. Simbo Ukiri Unreported: NICN/LA/454/2013. See also Uko, E.J; The Validity of the Doctrine of Restraint of Trade Under the Nigeria Labour Law, International Journal of Advanced Legal Studies and Governance, Vol. 4 No. 2 August 2013 p. 34. See particularly The La Casera Company v. Prahlad Kottappurath Gangadharan Suit No. NICN/LA/533/2013 which Judgment was delivered on17/3/16.
From the foregoing state of the law therefore, for the Claimant to succeed and be entitled to its claims, it must discharge the burden of proof placed on it. It is for the Claimant to prove his case by adducing credible, cogent and admissible evidence. See Health Care Product Nigeria Limited v. Bazza (2004)3 NWLR (Pt. 861) 582 at 605-606. Within the context of this case, the Claimant is obliged to prove that it has an interest which is capable of being protected; that the restraint on the Defendant is reasonable and that it is not contrary to public policy or interest. In proof of its case, the Claimant called one Bernand Bamigboye as its lone witness. Claimant also tendered 5 exhibits. Exh. C1 which is the contract document between the parties is central and critical to the determination of this case. Clause 6 of that exhibit contains the restrictive covenant. It states thus –
”Upon termination of this contract, or the Employee resigning for whatever reason(s), he shall not accept employment with any other Employer in Nigeria or in the same line of business as the Company and/or its Shareholders outside of Nigeria for a period of three (3) years from the date of termination or resignation as the case may be.
During the term of his employment, the Employee shall not be entitled to carry on any business or occupation directly or indirectly”.
Can it be said that the provision above constitute unfair labour practice? In order to proffer an answer to this nagging question and thus resolve Issue 1 it is imperative to first determine whether the clause is enforceable as provided. For, if it found to be enforceable, the it does not constitute unfair labor practice.
A careful reading of the restraining clause evinces the following meaning. Firstly, by that clause, the Defendant upon ceasing to be an employee of the Claimant for whatever reason even if his employment is terminated shall not accept employment with any other employer in Nigeria … for a period of (3) years from the date of termination or resignation as the case may be. A clear implication of this is that the Defendant could not pick up any other employment at all in Nigeria for a period of 3 period once he ceased to be an employee of the Claimant. This would appear immaterial whether or not such prospective employer is in the same line of business with the Claimant. Secondly, upon ceasing to be an employee of the Claimant, the Defendant shall not pick up any employment with another employer in the same line of business as the Company outside of Nigeria for a period of 3 years after ceasing to be a staff of the Claimant. Thirdly, my reading of the restrictive clause in this case is that the Defendant was hindered from taking employment in any line of business in which any shareholders of the Claimant is involved for a period of 3 years upon ceasing to be an employee of the Claimant. This is rather too restrictive. It more or less sought to place an employment embargo on the Defendant for a period of 3 years both within and outside of Nigeria. I find the provision of Clause 6 of Exh. C1 both inhuman and stifling. Notwithstanding my finding that the provision is inhuman and stifling, the burden is on the Claimant to prove to the Court by credible and cogent evidence that the provision is reasonable. That burden has not been discharged here. I thus find the provision inhuman, stifling and unreasonable. In CFAO v. Luba (supra) commenting on a point as the one under consideration Dunlop Ag. J had said –
”I agree that this appeal should be dismissed. The contract in restraint of trade is prima facie void unless it can be proved to be reasonable. The onus of proving its reasonableness is on the plaintiffs and as a preliminary they should have shown that the defendant has access to the trade secrets of the firm as well as that he had put himself in a position to disclose these trade secrets to a rival firm. There is no evidence even of what his duties were nor are they shown by the agreement. It may be that the plaintiffs could have adduced such evidence as I have indicated, and if they had done so, I should have been disposed to come to the conclusion that the contract was a reasonable one for I am of the opinion that the terms of it are severable but the plaintiffs have failed to adduce such evidence and I agree that such failure is fatal to their contention”.
The Courts in general, and this Court in particular, can only act on the basis of hard core evidence and must remove itself from the realms of speculations. See Otunba Samuel v. Mr. Osulade (2010) LPELR-CA/I/196/07. & Olalomi Industries Limited v. NIDB Limited (2009)16 NWLR (Pt. 1167) 266 at 303-304. I need to add also that there is no evidence before me on the trade secrets which the Claimant sought to protect by the insertion of that Clause
Notwithstanding the finding and the holding above, even if the existence of any legitimate interest had been found in favour of the Claimant, is the restraint in the instant case reasonable? A restraint as in the instant case will be held reasonable when considered against the interest of the parties on the one hand and interest of the larger public on the other hand. In other words, the reasonability test must satisfy three main conditions, viz- (a) the interest of the Claimant; (b) the interest of the Defendant and (c) the interest of the public. Within the context of the Judgment of Lord Macnaughten in Nordenfelt v. Maxim, Nordenfelt Guns and Ammunitions Co. these three conditions would seem imperative. But see the decision of the Supreme Court in Koumoulis v. Leventis Motors (1973) All NLR 789. I have already found and held in this Judgment that the Claimant did not prove the existence of any enforceable legitimate interest which the Court may find in its favour. Respecting the Defendant, it is suffice for the Court to hold that his interest is to continue to be employable, employed and able to put his skill to optimal use in contributing to his immediate environment. In other words an employee has a continued interest in ability to continue to earn a living. In some jurisdictions, individual right to work, apart from its international dimension, has been raised to the level of right to life. This should be understood against the backdrop of writings in some of the Holy Books to the effect that he who does not work should not eat. See for instance 2 Thessalonians chapter 3 v. 10.
In Section 254C(1)(f), Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration Act, 2010, this Court is conferred with the exercise of jurisdiction to the exclusion of any other Court in civil causes and matters relating to or connected with unfair labour practice or international best practice in labour, employment and industrial relation matters. The restraint placed on the Defendant is not limited to the Nigerian environment but rather it has global perspectives. It meant therefore that even if the Defendant were to return to his country of origin – India, he would still be restrained from being employed for a period of 3 years from ceasing to be an employee of the Claimant. I resolve the first issue in favor of the Defendant and hold that the restrictive covenant in this case constitutes unfair labor practice. I further hold that it is therefore unenforceable.
The second issue for determination is whether the Claimant has proved its case to be entitled to the reliefs or some of the reliefs sought. The success or otherwise of the case of the Claimant rests on its ability to prove the reasonableness of the Clause 6 of Exh. C1 and that same is not contrary to public policy. That burden is not discharged. In resolving issue 1, I have found and held that that the said restraining clause is unreasonable, contrary to public policy and therefore unenforceable. I must reiterate the obvious fact that success or otherwise of the Claimant’s case rests on reasonability of Clause 6 of Exh. C1. Having therefore found that that clause is unreasonable and unenforceable, there is no basis upon which the Court may grant any of the reliefs sought by the Claimant. The law is trite as Lord Denning MR aptly put in UAC v. MacFoy (1962)AC 158 that you cannot something on nothing and expect it to stay there. It will certainly collapse. The case of the Claimant is founded on a faulty and shaky foundation. It cannot and will not stand. I thus refuse all the reliefs sought and dismiss the case of the Claimant accordingly.
Finally, for the avoidance of doubt and for all the reasons contained in this Judgment, the case of the Claimant is dismissed in its entirety.
I make no order as to cost.
Judgment is entered accordingly.
____________________
Hon. Justice J. D. Peters
Presiding Judge
