Continental Reinsurance -VS- Mr. Kanma Maduka Okafor

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 23^rd January 2020 SUIT NO. NICN/LA/647/2016

BETWEEN

CONTINENTAL REINSURANCE PLC … CLAIMANT

AND

KANMA MADUKA OKAFOR … DEFENDANT

JUDGMENT

The Claimant by its complaint dated and filed on 25th October 2016claimed against the Defendant as follows:

A declaration that the Defendant’s threat to instigate civil and criminal investigations and prosecutions against the Claimant in Nigeria and abroad is contrary to international best practices in labour.

A declaration that the Defendant, a former employee of the Claimant, has no right whatsoever to publish or make known to the Corporate Affairs Commission, Securities and Exchange Commission, Economic and Financial Crimes Commission and/or to any agency or body whosoever, any information on the conduct of the Claimant’s business, its management and members of its Board of Directors.

A declaration that the Defendant’s threat to instigate civil and criminal investigations against the Claimant in Nigeria and abroad, on account of the disengagement of the Defendant’s employment is contrary to international best practices in labour.

A declaration that the Defendant’s use or threat or plan to use sensitive confidential information obtained in the course of Defendant’s employment with the Claimant, against the interest of the Claimant is contrary to international best practices in labour.

A declaration that the Defendant’s duty of confidentiality to the Claimant with respect to information which came into the Defendant’s possession in the course of his employment with the Claimant between 1st August 1993 and 3rd August 2016, subsists and consequently binding on the Defendant.

A declaration that the Defendant cannot, without the prior written consent of the Claimant, disclose any information concerning the business of the Claimant, its staff, management and Board members to the Securities and Exchange Commission, Corporate Affairs Commission, Economic and Financial Crimes Commission or any other agency or body.

A declaration that the Defendant having accepted payment of severance benefits paid into his account by the Claimant is estopped from demanding the sum of N400 million or any other sum or opportunity to resign from the Claimant’s employment, from the Claimant.

An order of injunction restraining the Defendant by himself, his Solicitors, agents or any other person[s] whomsoever from directly or indirectly instigating or causing the instigation of civil and/or criminal investigation and/or prosecution of the Claimant or any member of its Board, on account of the issues raised in the Defendant’s Solicitors letter dated 11th October 2016 or any other issue which arose in the course of the Defendant’s employment with the Claimant.

An order of injunction restraining the Defendant by himself, his Solicitors, agents or any other person[s] whomsoever, from directly or indirectly instigating or causing the instigation of civil and/or criminal investigation of the Claimant and/or any of its Directors and/or Management Staff by the Corporate Affairs Commission and/or Securities and Exchange Commission and/or Economic and Financial Crimes Commission or any other agency or regulatory body.

Cost in the sum of N10,000,000.00

The Claimant filed with thecomplaint a statement of facts, list of witness, statement on oath of the witness, verifying affidavit, list of documentsand copies of the documents. The originating processes were served on the Defendant on 26th October 2016. The Defendant entered conditional appearance on 10th November 2016 and filed his statement of defence and counterclaim and accompanying processes on 3rdMarch 2017 which was deemed as properly filed and served on 19th March 2019. The Claimant’s reply to statement of defence and defence to counterclaim and accompanying processes were filed on 19th March 2019. Trial commenced and was concluded on 8th April 2019. The Claimant’s witness, Dr. Segun Ajibewa, adopted his statement on oath dated 19th March 2019as his evidence in chief and tendered 5documents which were admitted in evidence and marked as exhibits 1 to 5; and he was duly cross-examined.The Defendant testified for himself and adopted his statement on oath dated 3rdMarch 2017 as his evidence in chief and tendered 15 documents which were admitted in evidence and marked as exhibits DW1 to DW15 and was cross-examined. In line with the Rules of the Court, parties filed their final written addresses which their respective counsel adopted as final arguments in support of each party’s case. The matter was consequently set down for judgment.

In the Defendant’s final written address, his counsel, Mr. SonnieEkwowusi, formulated four issues for determination to wit:

Whether the Claimant has proved its case entitling it to the reliefs sought?

Whether the Claimant wrongfully terminated the employment of the Defendant/Counter-claimant?

If the answer to [2] above is in the affirmative, whether the Defendant is entitled to damages for wrongful termination of his employment?

Whether the Counter-claimant is entitled to accumulated salaries which he would [have] earned had his employment not been wrongfully terminated in 2012 [sic]?

Before arguing the issues, Mr. Ekwowusi took a preliminary pointand urged the Court to expunge paragraphs 21, 27, 28 and 29 of the Claimant’s statement of facts and correspondingly paragraphs 21, 27, 28 and 29 of the Claimant’s witness’ statement on oath as it contains legal objections, arguments and conclusions contrary to the rule of pleadings and section 115 of the Evidence Act, 2011. He referred to a number of authorities including Buhari v. INEC [2008] 4 NWLR [pt. 1078] 546 at 622-623andIdu Godwin Emeka v.Hon Lynda Chuba [Ikpeazu] &Ors.[2017] LPELR[SC].

On issue one, learned counsel submitted that the Claimant has not adduced any evidence in proof of itsstatement of facts andpleadings unsupported by evidence is deemed abandoned. The case ofUBA Plc v. Mage Ltd.&Anor.[2017] LPELR-42444[CA]was cited in support. He explained that Claimant’s witness failed,in hisevidence-in-chief, to show that the Defendant has Claimant’s confidential or sensitive information worth protecting; and that the Defendant has published or is at the verge of publishing it to Corporate Affairs Commission, Securities and Exchange Commission or the Economic and Financial Crimes Commissionor any other agency. He also explained that when asked, under cross-examination, whether he knew that insurance business is based on uberrima fides, the Claimant’s witness answered in the affirmative; and when asked whether he was aware of anything confidential about Claimant’s business which the Defendant has published or is on the verge of publishing, he answered in the negative.He argued that what this means is that the Claimant’s case is unmeritorious or at best mere conjecture. He further argued that the Claimant failed woefully to adduce evidence that there is an “internationally-recognized confidence and trust” between the Claimant and Defendant during and after his employment with the Claimant. He contended that the Claimant failed to adduce evidence that ‘the international best practice’ precludes the Defendant from instigating civil and criminal investigation against the Claimant.

It was further argued that the Claimant’s witness only read out section 1.4 of the grievance procedure of the employee handbook,exhibit PW5 [sic], dealing with confidentiality,but failed to adduce any evidence that the Defendant published or is on the verge of publishing any sensitive information about the Claimant to the Corporate Affairs Commission, Securities and Exchange Commission or the Economic and Financial Crimes Commission or any other agency. Learned counsel referred to exhibit PW4 [sic] and contended that section 1.4 of exhibit PW5 does not preclude the Defendant from exercising his constitutional rights under section 6[6][a][b][c][d] of the 1999 Constitution to approach the Court and seek remedies against the Claimant after cessation of his employment orCorporate Affairs Commission, Securities and Exchange Commission as well as Economic and Financial Crimes Commission. He, therefore, submitted that the Claimant’s case is misconceived. He reasoned that the duty to maintain confidentiality contained in section 1.4 of theemployee handbook is one thing, the constitutional right to seek remedies guaranteed under section 6[6][a][b][c][d] of the 1999 Constitution is another thing. The Claimant cannot rob the Defendant of his constitutional right in the pretext of enforcing the employee handbook, he added. Relying on the dictum of Niki Tobi, J.S.C., in A.G. Lagos State v. A. G. Federation[2004] 18 NWLR [pt. 904] 1, he defined a legal right as a right recognized by law and capable of being enforced by the plaintiff; and submitted that any person who feels that his or her civil rights and obligations have been breached cannot be stoppedfrom approaching the court or any other lawful institutions to seek remedy in accordance with the judicial powers set out in Section 6[6] of the Constitution.Elufioye v. Halilu [1993] 6 NWLR [pt.301] 571 at 595was cited in support. It was also submitted that the Claimant’s claim is against public policy.

Learned counsel argued that the Claimant’s claim is purely speculative and at best a misplaced academic exercise with no bearing on proven facts and the Court can only act on proven facts not on speculations or misplaced academic exercise. He contended that a Claimant relying on mere speculation cannot invite the Court to grant a relief contingent upon a “right” which does not exist and referred toIsha v. State NWLR [pt. 1049] 582 at 614and Ejezie v. Anuwu [2008] 6 M.J.S.C. 86 at 120. The Court was urged to find for the Defendant.

On issue two, counsel argued that the Defendant’s employment was wrongfully terminated in that he was not accorded fair hearing before the termination. In addition, he was not informed of the outcome of investigations against him and no reason was given for the termination. He contended that in keeping with principles of natural justice and equality of the employer and employee before the law, the Claimant owed a duty to inform the Defendant of the outcome of investigations against him on issues raised by the Claimant in the query and the Defendant’s response to the query; and that it is wrong for the Claimant to simply proceed to terminate the Defendant’s employment without informing him of the outcome of the investigations. He referred to unreported decision of this Court inSuit No:NICN/IB/08/2015,AfolayanAderonke v. Skye Bankdelivered on 17th May 2017, NEPA v. El-Fandi [1986] 3 NWLR [pt. 32] 884 andEdward Aiyetan v. Nifor [1987] 3 NWLR [pt.59] 48.It was also argued that the old rigid common law position that an employer can terminate the employment of the employee with or without any reason is no longer applicable in Nigeria. He referred to the International Labour Organization’s Discrimination [employment and Occupation] Convention, 1958 No. 111 which stipulates that where an employer terminates the employment of an employee, he must give reasons for such termination and the cases of Afolayan Aderonke v. Skye Bank [supra] andEbere Onyekachi Aloysius v. Diamond Bank Plc [2015] 58 N.L.L.R 92. Continuing, learned counsel explained that the query issued to the Defendant bordered on attempted murder and assassination of Dr. Femi Oyetunji while in his response the Defendant accused Dr. Femi Oyetunji of planning to kill him. He submitted that it is settled law that allegations bordering on crime must first be proved in a court of law before the employment is terminated. Section 36[4] of the 1999 Constitution andSavannah Bank Nig. Plc v. Fakokun [2002] 1 NWLR [pt.749] 544were relied on.

Canvassing issue three, counsel submitted that having established that the Defendant’s employment was wrongly terminated, the Defendant is entitled to damages. The general rule governing the measure of damages which an employee is entitled to, he posited, is that the award will be limited to the amount of salary he would have earned but for the premature termination of his employment. Compensation, he added, may also include loss of any benefit which he is entitled to. He relied on the cases of Nigerian Maritime Administration and Safety Agency v.Stephen Odey [2013]LPELR 402[CA] andOsisanya v. Afribank[2007] 6 NWLR [pt.1031] 565.

On the fourth issue, counsel submitted that the Defendant is entitled to accumulated salaries which he would have earned if his employment had not been wrongfully terminated.He relied onS.B. Olanrenwaju v. Afribank Plc [2001] FWLR [pt. 72] and Idufueko v.Pfizer Products [2014] LPELR-22999.Counsel also adverted to paragraphs 15, 28, 29, 30, 31, 32, 33, 34, 37, 38, 39 and 40 of the statement of defence and counter-claim and exhibits DW1 to DW13 and argued that the Claimant did not object to the tendering of the documentswhich did not comply with section 84[2] of the Evidence Act, 2011; and is deemed to have waived the non-compliance. He submitted it is the law that where a document is not ordinarily inadmissible but its admissibility is subject to conditions that had not been fulfilled when it was tendered, its admission in evidence without objection constitutes a waiver of the unfulfilled condition. The cases of Isa Kassim v. The State [2017] LPELR-42586,pages 29-31 andOguma Associated Companies Nigeria Limited v. International Bank for West Africa Limited [1988] 1 NWLR [pt.73]658amongst others were cited in support. It was also submitted that a party who desires to tender an email must proceed on the basis that such evidence is relevant to the issue under inquiry and relying on Phipson on Evidence argued that the emailstendered by the Defendantare relevant and admissible. He added that electronic evidence generally must be authenticated before it is admitted and the main object of certification is to authenticate and establish the reliability of the computer that generated the evidence sought to be tendered in any proceeding. He reasoned that Section 84 of the Evidence Act, 2011 did not mention any specific form of certification of a computer-generated document. Continuing, he stated that there are many ways by which an email may be authenticated and this depends on the nature of the evidence and the circumstances of a particular case; and include facts relating to the features of the email such as date of transmission, email address of the sender and the recipients, user name, nickname, screen name, web name, the subject of the mail etcetera. He contended that the electronicdocuments tendered by the Defendant bear these features and that authentication goes beyond appending signature on an email and the non-signing of an email does not make it less authentic. The Court was urged to hold that the emails tendered by the Defendant met the aforesaid features and therefore duly authenticated. Learned counsel explained that the Defendant laid proper foundation before tendering the emails and showed the reliability of the computer which produced them and that they were printed “in the course of his business under the Claimant; that the email print outs are consistent with the emails in the Claimant computer and that the computer was the computer used in the course of the business of the Claimant.”The cases of Omisore v.Aregbesola &Ors.[2015] 15 NWLR [pt. 1482] 205andKubor v.Dickson [2013] 4 NWLR [pt. 1345] 53were referred to.

Consequently, he submitted that the Defendant adduced unchallenged evidence that he has not been paid all his entitlements and was due for promotion as General Manager before his disengagement and would have earned N75 million. He explained that under cross examination, the Claimant tried to impugn the integrity of some of the documents on the unfancied argument that it contains a disclaimer, which he defined as a defensivemeasureusedgenerallyforprotectionfromunwanted claims, but does not make the document less authentic.

In his response, Professor Taiwo Osipitan, SAN, counsel for the Claimant withdrew the first leg of his submission on the preliminary issue raised in the Claimant’s final written address on failure to affix NBA stamp. He argued that the Defendant’s final written address was filed out of time and notwithstanding payment of default fees, he ought to bring an application to regularize the process. He contended that the argument by Defendant’s counsel on paragraphs 21, 27, 28 and 29 of the statement of facts is misplaced. He explained that paragraphs 21, 27, 28 and 29 of the statement of facts are in compliance with Order 30 Rule 3 of the Rules of this Court being a summary of material facts which the Claimant relies to adduce evidence in support of its case; and by Order 30 Rule 16the Defendant’s submission is a technical objection which is prohibited by the Rules. It was also argued that the cases cited by the Defendant in support of his submission are inapplicable and the instances expressly provided in Order 30 Rule 18[1] of the Rules of this Court under which the Court may strike out a pleading do not include the variance of the objections raised by the Defendant.He contended that the Defendant’s submissions that paragraphs 21, 27, 28 and 29 of the Claimant’s witness statement on oath should be struck out for non-compliance with section 115 of the Evidence Act is misconceived because the Claimant’s witness’statement on oath is not a mere affidavit but his oral testimony in written form. He urgedthe Court to discountenance the Defendant’s plea to strike out paragraphs 21, 27, 28 and 29 of the statement of facts and the corresponding paragraphs of the statement on oath.

He formulated four issues for determination, to wit:

Whether or not, the Defendant as a former employee of the Claimant is obliged to maintain confidentiality of information pertaining to the Claimant and the Defendant acted contrary to the said obligation by disclosing to his Solicitor information pertaining to the Claimant’s business operations contained in letter dated 11/10/16 and using the said information to threaten and blackmail the Claimant?

Whether or not, the threats made by the Defendant against the Claimant in the Defendant’s Solicitor’s letter dated 11/10/16 containing demands and ultimatum on account of the disengagement of the Defendant’s employment is compatible with or accords with international best practices in labour?

Whether or not, the Defendant having received severance benefit of N74, 271,498.92 upon disengagement of his employment is justified in the demand made through his Solicitor’s letter dated 11th October 2016?

Whether or not the Counter-claimant is entitled to the declaratory and ancillary reliefs claimed in the counterclaim action?

On issue one, the learned silk pointed to exhibits PW1, PW2 and PW3 [sic] and argued that the Claimant has established the existence of employment relationship between it and the Defendant and the right to terminate a contract of employment resides with and can be exercised by either the employer or the employee. Reliance was placed on the case of Texaco Nigeria Plc v. Kehinde [2014] 42 NLLR Part 132 Page 480. It was also submitted that a contract of employment creates a relation of trust and confidentiality between the employer and employee whereby the employee is obliged to always act towards his employer in good faith and in the interest of his employer. Conversely, the employer is obliged to act in good faith towards its employee. He posited that the employee’s duty of good faith which includes maintaining confidentiality in his relationship with the employer has for long been given recognition by the Court and relied on UBN Plc v. Soares [2012] 29 NLLR Part 84 at Page 329 and paragraph B.8 of exhibit C5 [sic] dealing with “confidentiality and data collection and intellectual property”. He was of the view that paragraph B.8 of exhibit C5 unequivocally supports the Claimant’s case that its relationship with the Defendant enjoys confidentiality whereby the Defendant as an employee of the Claimant was obliged to treat as confidential facts, information and data concerning the Claimant’s business and not disclose the said confidential information. He submitted further that there is an implied undertaking by the Defendant to always be of good behaviour, diligently serve the Claimant and protect its property. To buttress his argument, he referred to the cases of Robb v. Green [1895] 2 Q.B., Lamb v. Evans [1893] 1 Ch. 218 and the unreported case of Aero Contractors Co. of Nig. Ltd v. Mr. Akintayo Akingbehin, Suit no. NICN/LA/123/2013.

He argued that the decisions in the above cited authorities, particularly the Aero Contractors’ case, put it beyond doubt that the Defendant has a duty of confidentiality to the Claimant. Also, notwithstanding that the Defendant is no longer in the employment of the Claimant, the Defendant’s duty of confidentiality and good faith towards the Claimant subsists. He cited section 280[5] of the Companies and Allied Matters Act in support. Applying the above quoted law and decisions to the instant case,counsel submitted that it is crystal clear that exhibit C4 [sic] which is riddled with vital details of the Claimant’s corporate affairs, business operations and contracts was authorized by the Defendant in breach of his duty of confidentiality to the Claimant; and was deployed for the sole purpose of blackmailing and threatening the Claimant, on account of his disengagement. It was also submitted that exhibit C4 by itself gives credibility to the oral evidence adduced by the Claimant and establishes the Claimant’s case for declaratory reliefs and injunction against the Defendant. Continuing, he argued that contrary to the submissions of the Defendant in paragraphs 7.02 to 7.05 of his final address to the effect that the Claimant’s case is a mere conjecture and speculation and that Claimant failed to adduce evidence that Defendant published confidential information of the Claimant, the content of exhibit C4 settles the fact that the Defendant published confidential information regarding Claimant’s business operations to his Solicitor; and being a written document, no oral evidence can be given effect which contradicts the content and patent effect of exhibit C4. The Court was urged to resolve issue 1 in favour of the Claimant.

Issues two and three were argued together. The learned silk submitted that it is good labour practice that the Defendant who worked with the Claimant for over twenty years should act towards it with good faith. He explained that there is credible and unchallenged evidence that the Defendant was entitled to three months’ salary in lieu of notice; and PW1 gave unchallenged evidence that the Defendant was paid a total sum of N74, 271,498.92 which comprised one year basic salary as ex-gratia; gratuity; outstanding 2016 annual leave days converted to cash, payment in lieu of official car and mandatory savings. In essence, he noted, the Claimant in disengaging the Defendant discharged all its obligations to the Defendant. He explained further that there is no evidence that the Defendant made a formal complaint to the Claimant, rejecting the sum of N74, 271,498.92 or the components of the payment. Consequently, he argued, there was no basis for the Defendant to issue threats and blackmail against the Claimant on account of termination of his employment. He contended that from a collective reading of exhibit C4 the Defendant used the letter to threaten and blackmail the Claimant which is contrary to best international practice in labour. The Court was urged to so hold. He pointed to paragraphs 14, 15, 16, 17, 18, 25, 26, 28 and 29 of the Claimant’s witness’ statement on oath wherein he testified to the threats contained in exhibit C4 and the effect thereof. He explained that this testimony was not challenged under cross-examination and urged the Court to rely on it since the said testimony is made credible by exhibit C4.He submitted that the law is trite that where a witness gives evidence on oath and the adversary who has opportunity to contradict the evidence of the witness elects not to cross-examine the witness on the issue, the Court is entitled to treat the testimony of the witness on the issue as settled and admitted by the adversary. He cited a plethora of cases in support including the case of Kayili v. Yilbuk & Ors. [2015] 1–2 MJSC 118 at 158-159.

Learned senior counsel also argued that the Defendant’s demand for immediate removal of Claimant’s Managing Director from office on account of his disengagement is an unacceptable labour practice which should be deprecated. He further argued that assuming the Defendant’s employment was wrongfully disengaged, the legal remedy available to the Defendant under the law does not include the immediate termination of the Claimant’s Managing Director/CEO. Also, the Defendant’s ‘threat for Claimant to reinstate him with apology’ so that he can have the option to resign is not a legal remedy under our law. He contended that the fact that the Defendant ceased to be an employee of the Claimant upon delivery of exhibit CW3 is of no moment with regard to the Court’s duty to make appropriate pronouncements on the impropriety of his action as evinced in exhibit C4 on account of his disengagement. Counsel submitted that the jurisdiction and duty of the Court is invoked not for enforcement of mere contractual rights only, but in order for the Court to make policy decisions that will promote good labour practices, prevent labour practices regarded as unfair and restore good labour culture and industrial peace within Nigeria. Reliance was placed on the cases of NTF Mills Ltd. v. The 2nd Punjab Tribunal Air [1957] SC 329 and Severinsen v. EMTS Ltd. [2012] 27 NLLR Part 78 page 374. Consequently, this Court was urged to invoke its judicial powers under Section 254C[1][a] and [f] of the Constitution, sections 7[1] and 14 of the Industrial Court Act [sic] and resolve issues 2 & 3 in favour of the Claimant.

Arguing issue four, counsel posited that a counterclaim is a separate and distinct action. Therefore, the pleading and evidence in support of the counterclaim must be treated as a separate substantive action with the applicable law and Rules of Court applied to it as if it were the main claim itself. Reliance was placed on Usman v. Garke [1999] 1 NWLR [pt.587] 466. He submitted that the law is trite that a party seeking declaratory reliefs has the burden to prove his entitlement to the reliefs by adducing convincing credible evidence. In so doing, he must rely solely on the strength of his case. He cited a number of cases including Fiicharles Organ & Ors. v. N.L.N.G Ltd & Ors. [2013] 5-7 MJSC [pt. 1] 173 at 202.

He argued that the Defendant failed to plead and prove his employment terms. He explained that whereas the Defendant is seeking declaration to the effect that the termination of his employment is wrongful, null and void; and a declaration that denial of his promotion entitlement to the rank of General Manager since 2012 is wrongful, he failed to justify his entitlement to the declaratory reliefs sought in the action. Therefore, the counter-claim is liable to be dismissed. He noted that the Defendant’s pleading is bereft of material facts relating to his employment contractand that, although the Defendant tendered several exhibits, his contract of employment which will show the terms and conditions regulating the employment was not tendered. He submitted that a case is fought, won or lost on the pleadings and the Court cannot go outside the pleadings of a party in the process of adjudicating the case. He submitted further that the Defendant having failed to plead the terms of his employment contract, there is no legal basis for judicial appraisal of his claims. Reliance was placed on the cases of Odom v. PDP [2015] 6 NWLR [pt. 1556] 527 and Fagbenro v. Arobadi [2006] 7 NWLR [pt. 978] 172.

It was argued that a Claimant who institutes an action for wrongful termination of his employment must plead and tender his contract of employment, the terms of the employment which the employer ought to, but failed to comply with and how the employer failed to comply with the terms. This mandatory pre-requisite is visibly absent in the Defendant’s pleading which means that no evidence of the contract which is the subject of the complaint is admissible and such evidence, if adduced, will go to no issue not supported by pleadings, he contended. He relied on Texaco Nigeria Plc v. Kehinde [2014] 42 N.L.L.R [pt. 132] 480 at 512-513 amongst others. He submitted further that it is trite labour law that the Court would determine the rights and obligation of the employer and employee from the terms of the employment and since these were not pleaded the Defendant failed to place evidence of the contract terms and alleged breach before the Court, which is thus judicially handicapped to grant any relief in respect of the contract. The cases of Katto v. C.B.N [1999] 6 NWLR [pt. 607] 390 and Texaco Nigeria Plc v. Kehinde [supra]were cited in support. In the premise, he submitted that the counter-claim is bound to fail in its entirety. He contended that the Defendant having failed to prove his entitlement to the declaratory reliefs, the ancillary reliefs cannot be granted since it does not have a life of its own. The cases of Unilorin Teaching Hospital v. Abegunde [2015] 3 NWLR [pt. 1447] 421 and M.C. Investment Ltd. v. Prof. J.T. Duncan [2015] LPELR-25941 were referred to.

Further and in the alternative to the above, counsel submitted that the Defendant failed to adduce any credible evidence to warrant the grant of the declaratory reliefs sought. This is more so as all the documentary evidence tendered by the Defendant are worthless documents that are not signed or authenticated by any person. In addition, the exhibits have no bearing whatsoever to the declaratory and ancillary reliefs claimed by the Defendant. Therefore, he argued, in the absence of the contract of employment and letter of termination in the Defendant’s pleading, the counter-claim is bereft of a valid complaint and is liable to be dismissed. He relied on Babatunde Ajayi v. Texaco Nig. Ltd. [1987] 3 NWLR [pt. 62] 577, [1987] 9-11 SC 1. He further argued that reliefs [a], [b], [c], [d] and [e] are conceptually contradictory and not grantable. Whereas, the Defendant in one breadth seeks a declaration that the termination of his employment is null and void and praying for reinstatement, in another breadth, he seeks payment of N75 million as alleged accumulated salaries from 2012 for the office of General Manager. This contradiction in the counter-claim makes it appear that the Defendant is uncertain as to whether he wants to be Group Head of ICT or General Manager of the Defendant or perhaps both, he contended.

He equally argued that having accepted and retained the sum of N74, 271,498.92 severance package the Defendant has, by implication, accepted his termination; because the law is trite that once an employee accepts payment after his employment is terminated, he cannot be heard to complain that his employment was not properly determined. Consequently, the counter-claim has no basis in law he concluded. Reliance was placed on Ekeagwu v. Nigerian Army [2006] 11 NWLR [pt. 991] 382and Julius Berger [Nig.] Plc v. Nwagwu [2006] 12 NWLR [pt. 995] 518 amongst others.

The learned silk referred to paragraphs 8.00 to 8.15 of the Defendant’s final written address and argued that these paragraphs raised fresh issues contrived to lend support to Defendant’s unsubstantiated submission that his employment was terminated without giving him a fair hearing on an alleged non-existent criminal investigation panel set up in 2011 by the Claimant. He submitted that the fresh issues are not supported by the pleading and evidence before the Court and the law is trite that address of counsel is designed to assist the Court by highlighting the evidence laid before the Court during trial and applicable law and Rules of Court to the case presented by the parties. The purpose of address of counsel is not to raise fresh issues which did not arise from the pleading or substitute evidence before the Court. He referred to some cases including Airtel Networks Ltd v. George & Ors. [2014] LPELR-22951[CA]. Furthermore, he submitted that the Defendant’s reliance on the cases of Afolayan Aderonke v. Skye Bank, Suit no. NICN/IB/08/2015 and NEPA v. El-fandi [supra]amongst others is misplaced. More so, he argued that, contrary to the Defendant’s submission that where an employer terminates the employment of an employee, he must give reasons for termination; our law is replete with cases such that it is now trite that“an employer is not bound to give any reason for terminating the appointment of a servant where such employment is not one with statutory flavour”. The cases of Ativie v. Kabelmetal Nig. Ltd [2008] LPELR-591[SC] and Olarewaju v. Afribank Nig. Plc [2001] 13 NWLR [pt. 731] 691 were cited in support.

On alleged waiver of the condition precedent for reception in evidence of computer-generated documents in section 84 of the Evidence Act, 2011, the learned senior counsel submitted that section 84 of the Evidence Act is a mandatory provision of law and the condition cannot be waived by counsel. It was also argued that exhibits DW1 to DW13 are totally irrelevant to the Defendant’s case and cannot cure the incurable defect in his case. The Court was urged to dismiss the counter-claim with substantial cost.

After the case was adjourned for judgment, learned senior counsel forwarded additional authorities in support of the proposition that acceptance of payment estops the Defendant from challenging termination of his employment; and effect of failure to regularize Defendant’s final written address filed out of time. On the former, he referred to the cases of Morohunfola v. Kwara Tech [1990] 4 NWLR [pt.145] 506 at 528 and Odiase v. Auchi Polytechnic [1998] 4 NWLR [pt.546] 477 at 495.On the second proposition, he referred to Okonkwo v. Okebukola [2013] 17 NWLR [pt.1384] 552 at 565, Khalil v. Yar’Adua [2003] 16 NWLR [pt.847] 446 at 473, Nwankwo v. Abazie [2003] 12 NWLR [pt.834] 381 at 411-412 and Onifade v. Olayiwola [1990] 7 NWLR [pt.161] 130 at 166.

Upon receipt of the additional authorities, learned counsel for the Defendant filed his response. He submitted that the dictum of Karibi-Whyte, J.S.C., in Morohunfola v. Kwara Tech [supra] quoted by the Claimant is not the ratio of the case, and on the effect of failure to regularize the Defendant’s final written address, he argued that the cases of Okonkwo v. Okebukola [supra], Khalil v. Yar’Adua [supra], Nwankwo v. Abazie [supra]and Onifade v. Olayiwola[supra]cited by the Claimant are irrelevant to this suit because the circumstances of the cases are different from this suit thus giving rise to the judgments in those cases. He submitted that by filing its written address dated 28th June 2019, the Claimant has waived its right to object to the irregularity and relied on Kossen Nigeria Limited v. Savannah Bank Limited [1995] 9 NWLR [pt.420] 439. It was also argued that the irregularity cannot materially affect the merits of the case or engender a miscarriage of justice. Relying on Obodo v. Olomu [1987] 3 NWLR 111, he submitted that the primary aim of the Court is to do justice and this aim cannot be achieved by denying a party his due as penalty for his counsel’s failure to comply with a directive of the Court. It was further argued that the non-filing of the written address within time does not render it incompetent. The case of Avzat Int’l Ltd. Anor. v. Ecobank [Nig.] Ltd. [2018] LPELR-44851[CA] was cited in support.

I have carefully considered the processes filed in this suit, the evidence adduced by the parties and the issues for determination formulated by counsel for the parties and, in my respectful view, the eight issues for determination can be subsumed into two issues for determination to wit:

Whether the Claimant is entitled to the reliefs claimed?

Whether the Defendant has proved his counterclaim?

It is settledlaw that he who asserts must prove. See section 131[1] of the Evidence Act, 2011 and the case of Nduul v. Wayo & Ors. [2018] 7 SC [pt.111] 164 at 212. To determine the party who has the burden of proof, section 131[2] of the Evidence Act, 2011 states that:

“[2] When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

Section 132 of the Evidence Act, 2011adds that:

“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

It is evident, therefore, that the Claimant who initiated the suit on a set of facts which it claims entitles it to judicial relief has the burden of: first, establishing those facts and secondly, establishing that those facts entitles it to the reliefs it seeks. This is what is often referred to as a prima facie case. It is only when the Claimant makes out a prima facie case that the burden now shifts to the Defendant to adduce counter evidence to sustain his defence. See Nduul v. Wayo & Ors. [supra].Where the Claimant fails to make out a prima facie case there will be nothing for the Defendant to rebut and the case will be dismissed. See Okomu Oil Palm Company Limited v. Iserhienrhien [2001] 6 NWLR [pt.710] 660 at 674.

Where a Claimant, as in this case, seeks declaratory reliefs,ithas the onerous burden to prove its entitlement to those reliefs. See Ilori & Ors. v. Ishola & Anor. [2018] 15 NWLR [pt.1641] 77 at 94.Evidence which will support a legal right must be overwhelming, total, convincing and credible. The Claimant must succeed on the strength of its case and not on the weakness of the defence. See Wondo & Ors. v. Bello & Ors. [2016] LPELR-40824[CA] 53 and Ilori & Ors. v. Ishola & Anor. [supra].It must be noted, however, that the standard of proof remains the same, that is, proof on a balance of probabilities. The Claimant is only required to show that the law and facts of his case support his claims and cannot rely on the mere admission of the Defendant or absence of defence. See Ojo v. ABT Associates Incorporated & Anor. [2014] LPELR-22860[CA] 25.This is so because a claim for declaratory reliefs calls for the exercise of the Court’s discretion in favour of the Claimant. Therefore, the Claimant must place sufficient materials before the Court to enable the Court exercise the discretion in its favour. See Nduul v. Wayo & Ors. [supra] at page 213 and Adama & Ors. v. Kogi State House of Assembly & Ors. [2019] 16 NWLR [pt.1699] 501 at 531.

On what a credible evidence is, the Court of Appeal in In-Time Connection Limited v. Mrs. Janet Ichie [2009] LPELR-8772[CA]16,posited that credible evidence means evidence worthy of belief and for evidence to be worthy of belief it must be natural, reasonable and probable in the peculiar circumstances of the case.

Before considering the issues raised above, it is imperative to deal with some of the issues raised by parties in their final written addresses.

The first issue deals with the competence of Defendant’s final written address. Learned senior counsel argued that the process is not properly before the Court having been filed outside the period prescribed by the Rules of Court. He submitted that Rules of Court are meant to be obeyed and, apart from paying the default fees, the Defendant should have brought an application for extension of time and; without this, there is nothing to adopt. He referred to some cases including Okonkwo v. Okebukola [supra] and Khalil v. Yar’Adua [supra].In his response, learned counsel for the Defendant argued that by filing its written address after receipt of the Defendant’s written address, the Claimant has waived the right to object to the irregularity and relied on Kossen Nigeria Limited v. Savannah Bank Limited [supra].He contended that the irregularity cannot materially affect the merits of the case or engender a miscarriage of justice. Relying on Obodo v. Olomu [supra], he submitted that the primary aim of the Court is to do justice and this aim cannot be achieved by denying a party his due as penalty for his counsel’s failure to comply with a directive of the Court. It was further argued that the non-filing of the written address within time does not render it incompetent. The case of Avzat Int’l Ltd. &Anor. v. Ecobank [Nig.] Ltd. [2018] LPELR-44851[CA] was cited in support.

From the records of this Court, trial was concluded on 8th April 2019 and by Order 38 rule 20 of the Rules, the Defendant was to file his final written address within 21 days from that day. He did not. It was eventually filed on 7th June 2019 which was, from the endorsement in the file, 22 days outside the prescribed period. The Defendant paid the assessed default fees and upon receipt of the Defendant’s final written address, the Claimant filed its final written address on 28th June 2019. I agree with the learned senior counsel that the rules of Court are meant to be obeyed. In fact, rules of Court are meant to regulate the conduct of proceedings in Court and are of benefit to the parties and the Court. However, justice should not be sacrificed on the altar of Court rules. All rules of Court are made in aid of justice. That being so, the interest of justice should have paramountcy over any compliance with the rules which will lead to outright injustice. See Saleh v. Monguno & Ors. [2006] LPELR-2992[SC] 26.The Court cannot, therefore, be shackled by procedure since cases are not made for procedure but procedure for cases. See Ariolu v. Ariolu [2010] LPELR-3947[CA] 12.

Furthermore, and as rightly argued by learned counsel for the Defendant, the Defendant’s failure to file his final written address within the prescribed period is an irregularity which does not affect the merits of the case and can be waived, see Heritage Bank Ltd. v. Bentworth Finance [Nig.] Ltd. [2018] 9 NWLR [pt.1625] 420 at 434. By filing its final written address after receipt of the Defendant’s final written address, the Claimant is deemed to have waived this irregularity. See Kossen Nigeria Limited v. Savannah Bank Limited [supra] at pages 17-18.

In addition, this Court is empowered by Order 1 rule 9[3] of the Rules of this Court to disregard any technical irregularity which is likely to result in a miscarriage of justice. See KLM Royal Dutch Airlines v. Aloma [2018] 1 NWLR [pt.1601] 473 at 500-502. Accordingly, I hold that to discountenance the Defendant’s final written address on the ground of non-filing of application for enlargement of time after payment of default fees will certainly not meet the ends of justice and Courts do not exist to punish litigants for mistakes of their counsel. See Pam v. All Nigeria Peoples Party & Ors. [2007] LPELR-9000[CA] 36. The objection of the learned silk is, with due respect, overruled.

The next issue relates to Defendant’s application to strike out paragraphs 21, 27, 28 and 29 of the statement of facts and the corresponding paragraphs of the Claimant’s witness’ statement on oath because it contains legal objections, arguments and conclusions contrary to the rule of pleadings and section 115 of the Evidence Act, 2011. He cited a number of authorities including Buhari v. INEC [2008] 4 NWLR [pt. 1078] 546 at 622-623,Bamiayi v.State [2001] 4 SC [pt. 1] 18 andIdu Godwin Emeka v.Hon.Lynda Chuba Ikpeazu &Ors.[2017] LPELR[SC]. In response, the learned senior counsel contended that the paragraphs are in compliance with Order 30 Rule 3 of the Rules of this Court and contain a summary of material facts which the Claimant relies upon to adduce evidence in support of its case. He submitted that Defendant’s counsel’s submission is a technical objection which is prohibited by Order 30 Rule 16 and by Order 30 Rule 18[1] the instances under which this Court may strike out a pleading do not include the variance of objections raised by the Defendant. He added that a statement on oath is not a mere affidavit but oral testimony in written form.

Order 30rules 3[1] and 11 of National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 [“the Rules”] provide thus:

“3[1] Every pleading shall contain a statement in summary form of the material facts on which the party pleading relies for the party’s claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary be divided into paragraphs and numbered consecutively.”

“11. Whenever the contents of any documents are material, it shall be sufficient in any pleading to state the effect of the document[s] as briefly as possible, without setting out the whole or any part [of] the document[s], unless the precise words of the document or any part of the same are material.”

The purpose and content of pleadings have received judicial elucidation in a plethora of cases, some of which have been adverted to by learned counsel for the Defendant.The general rule is that pleadings fix the issues for trial accurately and apprise the opponent of the case he is to meet. Pleadings must contain only facts, material facts, and not evidence, arguments, conclusions, inferences and submissions. SeeAttorney-General of Anambra State v. C. N. Onuselogu Enterprises Ltd. [1987] LPELR-614[SC] 20, Usman v. Garke [1999] 1 NWLR [pt.587] 466 at 481-482, Nwanji v. Coastal Services Nigeria Ltd. [2004] LPELR-2106[SC] 22, Alibo & Ors. v. Okusin & Ors. [2010] 3-5 SC [pt.1] 41 at 62, Buhari v. INEC & Ors. [supra] at page 623, Takuma & Anor. v. Liman & Ors. [2009] LPELR-5000[CA] 18, Sanni-Omotosho v. Obidairo [2014] LPELR-23006[CA] 27-28and Addison United Nigeria Limited v. Lion of Africa Insurance Limited [2010] LPELR-3596[CA] 29. In Usman v. Garke [supra], Edozie, J.C.A. [as he then was], posited that:

“Every pleading must contain facts, not law. Although a party may raise a point of law in his pleading, he is not permitted to plead conclusions of law or of mixed fact and law…. Applying the above principles to the case in hand, it is plain to me that a great deal of the averments in the paragraphs of the statement of defence under consideration consists of legal conclusions and not facts and to that extent the averments are violative of the rules of pleading.”

In Buhari v. INEC & Ors. [supra] the Court of Appeal struck out some paragraphs of the Petitioner’s pleading because it contained legal result, arguments, conclusions, inferences and submissions.

The alleged offending pleadings are paragraphs21, 27, 28 and 29 of the statement of factswhich are reproduced here for clarity.

“21. The Claimant says that the Defendant who has ceased to be in the employment of the Claimant has no right to petition the Corporate Affairs Commission, Securities and Exchange Commission and/or the EFCC or any other agency or body, based on information which came into possession of the Defendant, in the course of his employment as an employee of the Claimant.”

“27. The Claimant says, that even though the Defendant’s employment was disengaged on 3rd August 2016, it is against international best practices in labour, for the Defendant to use sensitive confidential information of the Claimant and its Board, in the manner threatened in the said letter dated 11th October 2016.”

“28. The Claimant says it will amount to unfair labour practice for the Claimant to terminate the employment of the Claimant’s Group Managing Director as demanded by the Defendant in his Solicitor’s letter dated 11th October 2016.”

“29. The Claimant says, that the sum of N74, 271,498.92 paid to, and received by the Defendant as severance package on the basis of the Claimant’s letter of disengagement dated 3rd August 2016 is much more than the Defendant’s entitlement of three months’ salary in lieu of notice of disengagement and there is no basis for paying the Defendant the sum of N400, 000,000.00 demanded on his behalf in his Solicitor’s letter dated 11th October 2016.”

Learned counsel for the Defendant contended that these paragraphs contain legal objections, legal arguments and legal conclusions and urged the Court to expunge it from the statement of facts. The learned silk’s response is that the paragraphs contain a summary of material facts which the Claimant relies to adduce evidence in support of its case and that the objection amounts to a technical objection in breach of Order 30 rule 16 of the Rules. The question is, what is a technical objection? The Longman Dictionary of contemporary English for advanced learners, new edition defined ‘technical’ to include “relating to small exact details or rules that say how a system should work”; and ‘technicality’ was defined as “a small detail in a law or a set of rules, especially one that forces you to make a decision that seems unfair”. Ithas also been said to mean “immaterial, not affecting substantial rights, without substance”, see Orji & Ors. v. Iloputaife & Ors. [2011] LPELR-9199[CA] 24. In Yusuf v. Adegoke & Anor. [2007] LPELR-3534[SC] 41, Aderemi, J.S.C., observed that:

“A technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. A technicality arises if a party quickly takes an immediately available opportunity, however infinitesimal it may be, to work against the merits of the opponent’s case. In other words, he holds and relies tenaciously unto the rules of court with little or no regard to the justice of the matter.”

A technical objection is, therefore, an objection which is immaterial, without substance or does not affect the substantive rights of the parties to an action. Can it be said that an objection on the content of a pleading is a technical objection? I do not think so. In a civil action, pleadings form the bedrock of the claims before the Court. It defines and delimits the scope of controversy between the parties upon which evidence can be presented. That is why pleadings must deal with material facts relevant to the case as these facts are the fountain head of the law. See Abubakar & Anor. v. Joseph & Anor. [2008] LPELR-48[SC] 33 and Yusuf v. Adegoke & Anor. [supra].Where the Rules, as in Order 30 rule 11, require specific pleading of certain facts, there is no derogation from the basic rule that pleadings should contain only statement of facts. See Attorney-General of Anambra State v. C. N. Onuselogu Enterprises Ltd. [supra]. Therefore, where irrelevant materials are included in a pleading, it is the responsibility of the other party to object to such inclusion.

Having said this, one may now ask: do the paragraphs reproduced above offend the rule of pleading? I have read the paragraphs carefully and it is my respectful view that paragraphs 21, 27, 28 and 29 of the statement of facts are legal arguments which have no place in pleadings. Its deserved place is in the final written address. Consequently, paragraphs 21, 27, 28 and 29 of the statement of facts are expunged from the Claimant’s pleading.

The Defendant’s counsel also urged the Court to strike out the corresponding paragraphs in the Claimant’s witness’ statement on oathon the ground that it offends section 115 of the Evidence Act, 2011. He relied on Idu Godwin Emeka v.Hon Lynda Chuba Ikpeazu &Ors.[supra]. The response of Claimant’s counsel is that a statement on oath is not a mere affidavit. Since introduction of the front-loading system, the relationship between a statement on oath and an affidavit evidence has been a subject of controversy. Although, an affidavit and a statement on oath are statements of facts which the deponent swears to be true, both forms of evidence are remarkably different. An affidavit is a documentary evidence which the Court can admit in the absence of any contrary evidence. It is complete upon deposition and does not require cross-examination except in cases of conflict in affidavit evidence where oral evidence will be required to resolve the conflict.A statement on oath, on the other hand,is not evidence. It is merely a statement on oath which only becomes evidence after the witness is sworn in Court and adopts it as his evidence. At that point it becomes his evidence in chief which is then subjected to cross-examination. See generally Udeagha & Anor. v. Omegara & Ors. [2010] LPELR-3856[CA] 19, Okpa v. Irek & Anor. [2012] LPELR-8033[CA] 9 and Onyenwe & Anor. v. Anaejionu [2014] LPELR-22495[CA] 30-31.

In addition, the Evidence Act regulates affidavits, while the Rules of Court regulate statement on oath. Orders 3 rule 9[c] and 15 rule 1[1][d] of the Rules merely state that the complaint or statement of defence and counterclaim [if any] shall be accompanied by a written statement on oath of all witnesses listed to be called by the party concerned. Order 41 rule 11 of the Rules stipulates that the “provisions of Sections 107 to 120 of the Evidence Act which set out the provisions governing affidavit shall be applicable under these Rules.”Thus, it is clear that the Rules do not specify the content of a statement on oath, but section 115 of the Evidence Act spells out what an affidavit must contain. It is elementary rule of statutory interpretation that the express mention of one thing implies the exclusion of matters not mentioned. See Asikpo & Anor. v. Etuk & Ors. [2011] LPELR-4050[CA] 30. The cases cited by learned counsel for the Defendant deal with affidavit evidence not statements on oath and are therefore inapplicable. Nonetheless, it is my considered opinion that a statement on oath, being the testimony of the witness in chief, must dwell on facts pleaded in the statement of facts and not law or legal argument or conclusions. I have carefully read paragraphs 21, 27, 28 and 29 of the Claimant’s witness’ statement on oath and I find nothing offensive in those paragraphs.Therefore,I hold that paragraphs 21, 27, 28 and 29 of the Claimant’s witness’ statement on oath are valid.

The next issue is on the alleged waiver by the Claimant of its right to object to the tendering of computer-generated documents by the Defendant without compliance with section 84[2] of the Evidence Act, 2011. The defence counsel submitted that where a document is not ordinarily inadmissible but its admissibility is subject to conditions that have not been fulfilled when it was tendered, its admission in evidence without objection constitutes a waiver of the unfulfilled condition. He relied on the cases of Isa Kassim v. The State [supra] andOguma Associated Companies Nigeria Limited v. International Bank for West Africa Limited [supra]. In response, the Claimant’s counsel submitted that the stipulation of section 84 of the Evidence Act is a mandatory provision of law which cannot be waived by counsel.

Section 84[1], [2] and [4] of the Evidence Act, 2011 are reproduced for ease of understanding.

“1. In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.”

“2. The conditions referred to in subsection(1) of this section are –

that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;

that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

“4. In any proceeding where it is desired to give a statement in evidence by virtue of this section a certificate –

identifying the document containing the statement and describing the manner in which it was produced;

giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer.

dealing with any of the matters to which the conditions mentioned in subsection (2) above relate; and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

The conditions specified in subsection 2 above are mandatory. See Kubor v. Dickson [2013] 4 NWLR [pt.1345] 534 at 578andDickson v. Sylva & Ors. [2016] LPELR-41257[SC] 23-24.Learned counsel for the Defendant relied on Isa Kassim v. The State [supra] andOguma Associated Companies Nigeria Limited v. International Bank for West Africa Limited [supra] to argue that the failure by the Claimant to object to the admissibility of those documents at the trial means it has waived its right to challenge the competence of the documents. In IsahKassim v. The State [2015] LPELR-40393[CA] 18,Akeju, J.C.A., remarked that:

“In any case the law is that where a document is not inadmissible per se but its admissibility is subject to the conditions that had not been fulfilled when it was tendered its admission in evidence without objection constitutes a waiver of the unfulfilled condition.”,

Earlier, in Oguma Associated Companies [Nigeria] Ltd. v. International Bank for West Africa Ltd. [1988] LPELR-2318[SC] 21-22, the Supreme Court, per Agbaje, J.S.C., heldthat:

“It is a cardinal rule of evidence, and of practice, in civil as well as in criminal cases, that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible [consent or no consent of the parties notwithstanding] for failing to satisfy some conditions or to meet some criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document … the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission.”

From the wording of section 84[1] of the Evidence Act, 2011, it is plain to me that computer-generated documents are only admissible in evidence upon compliance with this mandatory provision. A computer-generated document which does not satisfy the provision of subsection 2 of section 84 of the Evidence Act, 2011 is rendered inadmissible by law with or without objection.As a result, the issue of waiver does not arise. Such evidence must be disregarded by the Court in consideration of the judgment in the matter. SeeShittu & Ors. v. Fashawe [2005] 14 NWLR [pt.946] 671 at 690.

The fourth issue deals with existence of employment relationship between the Claimant and the Defendant and whether either party can terminate the employment.The learned senior counsel adverted to exhibits PW1, PW2 and PW3 as establishing an employer/employee relationship between the parties in this suit. Learned counsel for the Defendant did not urge anything on the Court in this regard. First, let me say that there are no exhibits marked as such in the Court’s record. What we have are exhibits 1, 2 and 3, the letters of employment, acceptance and disengagement respectively. Without doubt, parties agree that there existed between the Claimant and Defendant an employment relationship. The Defendant admitted paragraph 4 of the statement of facts which deals with the employment of the Defendant in paragraph 3 of the statement of defence and counterclaim and went on to aver that he “worked with the Claimant for 23 best working years”. Facts admitted require no further proof. See section 123 of the Evidence Act, 2011 and the case of Adeokin Records & Anor. v. Musical Copyright Society of Nigeria [Ltd./Gte] [2018] 7 SC [pt. 11] 40 at 54.

Therefore, I find as a fact thatan employment relationship existed between the Claimant and Defendant. A necessary incident of this relationship is the right of either party to terminate the employment contract in accordance with its terms. See Idoniboye-Obu v. NNPC [2003] 1 SC [pt.1] 40 at 52-53and Oforishe v. Nigerian Gas Company Ltd. [2018] 2 NWLR [pt.1602] 35 at 53-54.

Lastly, the learned silk argued that paragraphs 8.00 to 8.15 of the Defendant’s final written address raised fresh issues contrived to lend support to Defendant’s unsubstantiated submission that his employment was terminated without giving him a fair hearing on an alleged non-existent criminal investigation panel set up in 2011 by the Claimant. The Defendant did not rejoin. I have carefully read the statement of defence and counterclaim and the Defendant’s statement on oath, nowhere did the Defendant aver that a panel was set up to investigate him. Also, this fact is not manifest from the exhibits tendered by the parties. Defendant’s counsel’s submission was, therefore, not backed by the pleading and evidence and goes to no issue. See Klifco Nigeria Limited v. Nigeria Social Insurance Trust Fund Management Board [2004] LPELR-5788[CA] 8.

This leads me to a consideration of the issues formulated above.

ISSUE ONE: Whether the Claimant is entitled to the reliefs claimed?

Arguing this issue, learned counsel for the Defendant maintained that Claimant’s witness failed to show that the Defendant possessedClaimant’s confidential information worth protecting and that the Defendant has published or was about to publish the alleged information.He explained that the witness admitted, under cross-examination, that insurance business is based on uberrima fides and that he was not aware of Claimant’s confidential information which the Defendant published or wasabout to publish.He argued that placing exhibit PW5 [exhibit 4] side by side with section 1.4 of the employee handbook, it cannot be said by any reasonable person that the section precludes the Defendant from exercising his constitutional rights under section 6[6][a][b][c][d] of the 1999 Constitutionto seek remedies in Court, Corporate Affairs Commission, Securities and Exchange Commission as well as the Economic and Financial Crimes Commissionafter cessation of his employment.He contended that thesectiondeals with keeping confidential information, but the Claimant has failed to adduce any evidence that the Defendant published or is on the verge of publishing its confidential information.He pointed outthat the duty of confidentiality contained in section 1.4 of the employee handbook is one thing, while the constitutional right to seek remedies guaranteed in section 6[6][a][b][c][d] of the 1999 Constitution is another thing andClaimant cannot rob the Defendant of his constitutional right in the pretext of enforcing the employee handbook.He concluded that the Claimant’s claim is speculative and the Court cannot grant a relief contingent upon a right which does not exist.

In response, the learned silk argued that paragraph B.8 of exhibit C5 [sic] unequivocally supports the Claimant’s case that the employment relationship enjoyed confidentiality whereby the Defendant, as an employee, was obliged to treat as confidential facts, information and data concerning the Claimant’s business. He relied on the cases of Robb v. Green [supra], Lamb v. Evans [supra] and Aero Contractors Co. of Nig. Ltd v. Mr. Akintayo Akingbehin[supra];and contended that, notwithstanding his disengagement, the Defendant’s duty of confidentiality and good faith towards the Claimant subsists. Section 280[5] of the Companies and Allied Matters Act was cited in support. He submitted thatapplying the above quoted law and decisions to the instant case, it is crystal clear that exhibit C4 [sic] which is riddled with vital details of the Claimant’s corporate affairs, business operations and contracts was authorized by the Defendant in breach of his duty of confidentiality to the Claimant; and was deployed for the sole purpose of blackmailing and threatening the Claimant on account of his disengagement. He argued that exhibit C4 [sic] gives credibility to the oral evidence adduced by the Claimant and establishes the Claimant’s case for declaratory reliefs and injunction against the Defendant. Continuing, he argued that contrary to the submissions of the Defendant in paragraphs 7.02 to 7.05 of his final written address to the effect that the Claimant’s case is mere conjecture and speculation and that Claimant failed to adduce evidence that Defendant published confidential information of the Claimant, the content of exhibit C4 [sic] settles the fact that the Defendant published confidential information regarding Claimant’s business operations to his Solicitor; and being a written document, no oral evidence can be given effect which contradicts the content and patent effect of exhibit C4 [sic].

He submitted further that it is good labour practice that the Defendant who worked with the Claimant for over twenty years should act towards it with good faith. He explained that there is credible and unchallenged evidence that the Defendant was entitled to three months’ salary in lieu of notice but was paid N74, 271,498.92 noting that the Claimant in disengaging the Defendant discharged its obligations to the Defendant. He explained further that there is no evidence that the Defendant made a complaint to the Claimant, rejecting the sum of N74, 271,498.92 or components of the payment. Consequently, there was no basis for the Defendant to threaten and blackmail the Claimant on account of his disengagement. He contended that exhibit C4 is contrary to best international practice in labour and urged the Court to so hold. He referred to paragraphs 14, 15, 16, 17, 18, 25, 26, 28 and 29 of the Claimant’s witness’ statement on oath wherein he testified to the threats contained in exhibit C4 and the effect thereof and contended that this testimony was not challenged under cross-examination and urged the Court to rely on it since the said testimony is made credible by exhibit C4. He referred to Kayili v. Yilbuk & Ors. [supra].

It was also argued that the Defendant’s demand for immediate removal of Claimant’s Managing Director from office on account of his disengagement is an unacceptable labour practice which should be deprecated. He contended that, assuming the Defendant’s termination was wrongful, the remedy available to the Defendant under the law does not include termination of the Claimant’s Managing Director’s appointment. Also, the Defendant’s demand for reinstatement with apology and option to resign is not a legal remedy. He pointed out that the fact that the Defendant ceased to be an employee of the Claimant upon delivery of exhibit CW3 is of no moment with regard to the Court’s duty to make appropriate pronouncements on the impropriety of his action as evinced in exhibit C4 on account of his disengagement. Counsel submitted that the jurisdiction and duty of the Court is invoked not for enforcement of mere contractual rights only, but in order for the Court to make policy decisions that will promote good labour practices, prevent labour practices regarded as unfair and restore good labour culture and industrial peace within Nigeria. Reliance was placed on the cases of NTF Mills Ltd. v. The 2nd Punjab Tribunal Air [supra] and Severinsen v. EMTS Ltd. [supra]. Consequently, the Court was urged to invoke its judicial powers under Section 254C[1][a] and [f] of the Constitution, Sections 7[1] and 14 of the National Industrial Court Act and find in favour of the Claimant.

In proof of its case,the Claimant called one witness, Dr. Segun Ajibewa, who is the Head of its Human Resource Department.The witness, in his statement on oath dated 19th March 2019, testified that the Claimant carries on reinsurance business in Nigeria, Cameroon, Kenya, Tunisia, Ivory Coast and Botswana and the Defendant was its employee pursuant to the letters of employment and acceptance of employment dated 26th July 1993 and 28th July 1993 respectively. These documents were received in evidence and marked as exhibits 1 and 2 respectively. He explained that the Defendant was Deputy General Manager and Head of ICT department before his disengagement on 3rd August 2016. The letter of disengagement was admitted in evidence and marked as exhibit 3. According to him, in the course of Defendant’s employment, hepossessed sensitive confidential information relating to Claimant’s business secrets, peculiar business trading strategies and applications, operations and management policies, Board of Directors, management and staff; and in accordance with international best practices in labour, the Defendant has a duty not to undermine or work against the Claimant’s interest even after cessation of his employment; and on account of the mutual trust and confidence enjoined in employer and employee relationship, the Defendant is bound to keep confidential all information relating to the Claimant’s business operations, plans, trading strategies and applications, board, management and staff derived in the course of his employment. As an employee, the Defendant owed the Claimant contractual duty not to disclose information which came into his possession without Claimant’s consent and this duty,which is implied in the contract of employment,subsists even after disengagement. In breach of this term the Defendant, after termination of his employment, disclosed to his Solicitor, Chijioke Okoli, SAN, confidential information about Claimant’s business, operations, management and Board of Directors and, with the aim of blackmailing the Claimant, demanded immediate sack of its Managing Director, payment of N400m compensation, apology and an option of voluntary resignation of his employment in spite of receipt of N74, 271,498.92 severance benefits which is much more than he is entitled. He stated that the Defendant threatened to take steps capable of adversely affecting the business life, fortune and existence of the Claimant, its Board and employees, including a complaint to Corporate Affairs Commission, Securities and Exchange Commission and Economic and Financial Crimes Commission. He also stated that the Claimant has every reason to believe that, unless immediately restrained, the Defendant will, out of desperation, publish false damaging information about the Claimant and its Board to regulatory and investigatory authorities in order to disrupt and destroy the Claimant’s business and employment of its employees. It was further stated that the issues raised in the Defendant’s Solicitor’s letter of 11th October 2016 are issues which the Defendant ought to have raised,pursuant to section 1.4 of the Employee Handbook, while in the Claimant’s employment and having failed to do so he is estopped from raising the issues upon cessation of his employment. He testified that the Defendant’s threatened action is designed to undermine the internationally recognised confidence and trust between employer and employee in the work place and work against the deep business interest of the Claimant; and though the Defendant has ceased to work for the Claimant, it is against international best practices in labour for the Defendant to use sensitive confidential information of the Claimant and its Board in the manner threatened in the said letter; and it will amount to unfair labour practice for the Claimant to terminate the employment of its Group Managing Director as demanded by the Defendant. The letter from Ilo & Okoli dated 11th October 2016 and the Employee Handbook were admitted in evidence and marked as exhibits 4 and 5 respectively. Wherefore, the Claimant claims in terms of its complaint. The witness disclaimed Claimant’s indebtedness to the Defendant and stated that he was not denied promotion. In response to the counterclaim, he stated that the Defendant was never in charge of procurement of Claimant’s ICT software and hardware solutions; and it was not necessary for the Claimant’s Board to invite the Defendant to answer questions before his disengagement and such practice does not exist in the Claimant. He explained that the Defendant was served a query and answered the query, he was not denied promotion to the rank of General Manager and is not owed N75m or accumulated salaries for an office he did not occupy.Under cross-examination, he stated that it did not occur to him that the Defendant possessed some sensitive information. He acknowledged that insurance contract is a contract of good faith but denied that the Claimant has no confidential information to be protected because there is business information which is used in taking business decisions which is confidential ‘especially to manage competition’. He stated that the Defendant was not on the verge of disclosing any of such information.

Let me say here that there are no exhibits marked as exhibits PW4, PW5, C4, C5 and article 1.4 of the employee handbook deals with grievance procedure and not confidentiality agreement as erroneously canvassed by Defendant’s counsel in Defendant’s final written address. I have read the five exhibits tendered and relied on by the Claimant. Exhibit 1 is the letter of employment which does not contain detail terms of the contract of employment, but made reference to staff conditions of service.Exhibit 2 is the acceptance of employment, while exhibit 3 is the letter of disengagement. Exhibit 4 is the offending letter by the Defendant’s Solicitor and exhibit 5 is Claimant’s employee handbook. The Claimant averred in paragraphs 10 and 11 of its statement of facts thus:

“10. The Claimant says, that as an employee, the Defendant owes the Claimant contractual duty not to disclose information which came into his possession in his capacity as employee of the Claimant, without the consent of the Claimant and the said duty subsists even after disengagement of the Defendant’s employment by letter dated 3^rd August 2016. The Claimant shall at the trial, rely on its office copy of the said letter dated 3/8/16 by which Claimant disengaged the Defendant’s employment. Notice is hereby given to the Defendant to produce the original of the said letter at the trial of this Suit.”

“11. The Claimant says, that the duty of the Defendant not to disclose information which came into his possession in his capacity as employee of the Claimant, without the consent of the Claimant is an implied term of the Defendant’s contract of employment.”

The alleged publication of Claimant’s confidential information by the Defendant were set out in paragraphs 12 to 17 of the statement of facts.These paragraphs were denied in paragraphs 6 to 9 of the statement of defence and counterclaim, thus placing the burden of proof on the Claimant. See Texaco Overseas [Nigeria] & Anor. v. Rangk Limited [2008] LPELR-9850[CA] 26.

In paragraph 3 of the defence to counterclaim, the Claimant again averred that:

“3. The Defendant in further denial of Paragraphs 5 and 7 of the Counter-Claim says that the Counter-Claimant being an employee of the Defendant, it was also an implied term of his contract of employment that Counter-Claimant would observe good faith towards the Defendant and maintain fidelity and the confidential information of the Defendant during and after his employment.”

These paragraphs were reproduced as paragraphs 10 to 17 and 38 of the Claimant’s witness’ statement on oath. It will be observed that while paragraph 10 of the statement of facts referred to the Defendant’s contractual duty not to disclose information which he possessed as employee of the Claimant, paragraph 11 of the statement of facts and paragraph 3 of the defence to counterclaim refer to “implied term of his contract of employment”. Although both parties listed exhibit 5 in their list of documents, the term of the contract of employment creating the duty of confidentiality was not pleaded and, expectedly, no evidence was adduced on it. While it could be argued that reference to “contractual duty” in paragraph 10 of the statement of facts and statement on oath implies reference to the contract of employment, the document relied on in that paragraph is exhibit 3, the letter of disengagement not exhibit 5, the employee handbook. Apart from identifying the employee handbook and tendering it, the witness did not link the exhibit to this aspect of the Claimant’s case. The law is trite that a party relying on a document to prove his case must specifically relate the document to that part of his case in respect of which he tendered it. See Enudi & Anor. v. Osumili [2012] LPELR-9844[CA] 11,Dickson v. Sylva & Ors. [2016] LPELR-41257[SC] 81 and Order 30 rule 11 of the Rules.

This observation becomes pertinent when regard is had to paragraph 19 of the statement of facts which was reproduced in paragraph 19 of the statement on oath and, for clarity is set forth below:

“19. The Claimant says, that the issues raised in the Defendant’s Solicitor’s letter dated 11/10/2016 are issues, that the Defendant ought to have raised while in the Claimant’s employment, pursuant to Section 1.4 of the Grievances Procedure under the Claimant’s Employee Handbook. The Claimant shall at the trial rely on its Employee Handbook.”

Clearly, exhibit 5 was tendered not to prove the contractual duty to maintain confidential information but the Claimant’s grievance procedure in article 1.4 of exhibit 5. The term of the contract dealing with confidentiality was disclosed for the first term in paragraph 3.3 of Claimant’s final written address; and it is settled law that address of counsel, no matter how brilliant, cannot take the place of evidence.In fact, the address of counsel is supposed to deal only with the evidence before the Court and not to augment the inadequacy of evidence given at the trial. See Auto Import Export v. Adebayo & Ors. [2005] 12 SC [pt.11] 74 at 108,Ajayi v. Total Nigeria Plc [2013] LPELR-20898[SC] 22and Omisore & Anor. v. Aregbesola & Ors.[2015] LPELR-24803[SC] 108.

This analysis is important for two reasons. First, it is settled law that a party alleging breach of contract of employment must, in his pleading and evidence, show the terms of the contract which the other party breached. See Cadbury Nig. Plc v. Olubunmi O. Oni [2012] LPELR-19821[CA] 36. Also, a document is tendered to prove a fact pleaded. See Brawal Shipping [Nigeria] Limited v. F. I. Onwadike Co. Limited & Anor. [2000] LPELR-802[SC] page 20, where Uwaifo, J.S.C., remarked that:

“… when a document is pleaded, it forms part of the pleading. Certainly, a document is pleaded in order that it may be used to support facts relied on by the pleader. The existence of such document is thereby pleaded as a fact. The contents thereof are facts and are pleaded as such. The document will then at the appropriate time in the proceedings be tendered as the evidence in proof of those facts.”

See also Omega Bank Nigeria Plc v. O. B. C. Limited [2005] LPELR-2636[SC] 41 and Adekunle v. United Bank for Africa Plc [2016] LPELR-41124[CA] 41. In Omega Bank Nigeria Plc v. O. B. C. Limited [supra], Edozie, J.S.C., posited that:

“… where a document is pleaded to establish a particular fact, it can only be used to establish that fact ….”

In Adekunle v. United Bank for Africa Plc [supra], the Court of Appeal, per Tsammani, J.C.A., held that “The Court can only use a document properly admitted before it for the purpose for which it was admitted.”

From the foregoing, it is evident that exhibit 5 was not tendered to prove the term of contract between the parties obligating the Defendant to maintain Claimant’s confidential information. For this reason, the submission of the learned silk on article B.8 of exhibit 5 is without foundation and goes to no issue. Consequently, I hold that the Claimant has not proved the existence of any contractual duty by the Defendant to maintain its confidential information. This, perhaps, informsClaimant’s reliance on implied term of contract of employment and international best practices which I will advert to later in this judgment.

Assuming I am wrong, what is the duty imposed on the Defendant byarticle B.8 of exhibit 5?Article B.8 provides inter alia:

“In the course of their duties, employees will come into possession of facts, information and data concerning the company’s business. All such facts, information and data are to be treated as confidential and are not to be disclosed to any unauthorized persons.”

This provision is clear and must be given its ordinary grammatical meaning. See Dalek Nigeria Limited v. Oil Mineral Producing Areas Development Commission [2007] LPELR-916[SC] 49. Article B.8 imposes a duty on all employees of the Claimant to keep confidential ‘all facts, information and data’ concerning the Claimant’s business in their possession. Black’s Law Dictionary, 10th edition defined ‘business’ as a ‘particular occupation or employment habitually engaged in for livelihood or gain’. Thus, it is safe to conclude that the only facts, information and data protected by this provision are those which relate to the Claimant’s business strictly speaking and nothing else. But, the components of these facts, information and data are not stated. Can it be said that all facts, information and data about the Claimant’s business are confidential? Are the facts, information and data contained in the annual returns to the Corporate Affairs Commission and Securities and Exchange Commission confidential? I do not think so. The information furnished to those agencies are in the public domain and can readily be accessed by members of the public. This raises the issue of reasonableness of the stipulation, especially in view of the Freedom of Information Act and the position of the Claimant as a public limited liability company. The onus of proving the reasonableness of this stipulation rests on the Claimant, which proof is lacking.

Nevertheless, having not impugnedexhibit 5 the Defendant is bound by its stipulation. This, however, is not the end of the matter.

The Claimant has a duty to prove that the Defendant possessed its confidential information and that he divulged it to unauthorized persons. See section 131[1] of the Evidence Act, 2011.This is particularly so because the Claimant seeks declaratory reliefs which are not granted perfunctorily. See Ilori & Ors. v. Ishola & Anor. [supra].Substantial paragraphs of the Claimant’s witness’ statement on oath are devoted to establishing this fact. See paragraphs 6 to 18 of the statement on oath. Paragraphs 6 and 7 are reproduced here:

“6. The Defendant in the course of his employment with the Claimant came in contact with and was custodian of sensitive confidential information relating to the Claimant’s business secrets, peculiar business trading strategies and applications, operations and management policies and Board of Directors.”

“7. In the course of the Defendant’s employment, the Defendant became privy, and had unfettered access to sensitive information about the Board, Management and staff members of the Claimant.”

These paragraphs were pleaded in paragraphs 6 and 7 of the statement of facts. The Defendant denied paragraph 6 of the statement of facts in paragraph 4 of his statement of defence and counterclaim and averred, inter alia, that “…the Managing Director of the Claimant is the alter ego of the Claimant and is the person in charge/custody of the Claimant’s sensitive confidential information [if any] relating to the Claimant’s business secrets, peculiar business trading strategies and applications, operations and management policies and Board of Directors” which places the burden on the Claimant to prove that the Defendant in fact possessed the confidential information.Under cross-examination, the Claimant’s witness stated that it did not occur to him that the Defendant possessed some sensitive information. He acknowledged that insurance contract is a contract of good faith but denied that the Claimant has no confidential information to be protected because there are ‘business information which are used in taking business decisions which are confidential especially [sic] to manage competition’. He admitted that the Defendant was not on the verge of disclosing any of such information.

This piece of evidence contradicts his evidence in chief wherein he stated positively that the Defendant was a “custodian of sensitive confidential information relating to the Claimant’s business secrets, peculiar business trading strategies and applications, operations and management policies and Board of Directors” and discredits it. See Ajibare & Anor. v. Akomolafe & Anor. [2011] LPELR-3948[CA] 85and Salami v. Ajadi [2011] LPELR-4469[CA] 61. Placed side by side with paragraph 4 of the statement of defence and counterclaim, it is clear that this fact has not been proved. This is so notwithstanding that the Defendant did not deny paragraph 7 of the statement of facts. Paragraph 7 of the statement of facts relates to information about the Claimant’s Board, Management and staff which, in my respectful view, is not covered by the confidentiality clause. Thus, I find as a fact that the Claimant has failed to prove that the Defendant possessed confidential information relating to the Claimant’s business. See section 131[1] of the Evidence Act, 2011.

However, in urging the Court to find that the Claimant proved that the Defendant possessed confidential information relating to the Claimant’s business and published it, the learned senior counsel submitted that exhibit 4 gives credibility to the oral evidence adduced by the Claimant and establishes its case for declaratory reliefs and injunction. The evidence of the Claimant’s witness relevant to this issue is contained in paragraphs 6 to 18 of his statement on oath. Paragraphs 6, 7, 9 and 10deal with the contractual duty to keep Claimant’s confidential information. Paragraph 8 deal with international best practices in labour while paragraph 11 deal with the implied term of the Defendant’s contract of employment. Paragraphs 12 to 17 dwelt on exhibit 4. I have painstakingly read exhibit 4 which can be divided into three parts, namely: Defendant’s achievements, Claimant’s Managing Director’s misfeasance and Defendant’s demands. Paragraphs 6, 7, 9 and 10 of exhibit 4 are laced with financial information about the Claimant and are clearly in breach of the stipulation in article B.8 of exhibit 5. Paragraphs 11, 12, 13, 14 and 15 do not infringe on the duty of confidentiality and this is manifest in paragraph 13 of the Claimant’s witness’ statement on oath, wherein he stated that:

“13. The said information was disclosed by the Defendant to his Solicitor, after the cessation of his employment with the Claimant, purely to blackmail the Claimant to terminate the employment of Claimant’s Group Managing Director and to comply with Defendant’s demand for apology, compensation of N400 million and conversion of Defendant’s disengagement to resignation. The Claimant relies on the said letter dated 11^th October, 2016, written on behalf of the Claimant by his Solicitor.”

While threats and blackmail are antithetical to good employment relationship, it does not constitute a breach of the duty of confidentiality. In fact, the evidence of Claimant’s witness dwelt on the alleged effect of exhibit 4 but did not show in what way it breached the duty to maintain Claimant’s confidential information. In any event, having found that the Claimant did not establish the term of contract giving rise to the duty of confidentiality, I hold that, although paragraphs 6, 7, 9 and 10 of exhibit 4 constitute unauthorized disclosure of Claimant’s confidential information, this breach does not avail the Claimant in this case.

But assuming it avails the Claimant, does the duty of confidentiality contained in article B.8 of exhibit 5 subsist after termination of the employment relationship?This will depend on the exact wording of article B.8 of exhibit 5. It provides, inter alia:

In paragraph 7.10 of the Defendant’s final written address, learned counsel for the Defendant contended that section 1.4 of exhibit 5 cannot preclude the Defendant from approaching the Court orCorporate Affairs Commission, Securities and Exchange Commission as well as the Economic and Financial Crimes Commissionto seek remedies against the Claimant after cessation of his employment. He did not canvass arguments on article B.8 of exhibit 5. On his part, the learned silk reliedon the cases of Robb v. Green [supra], Lamb v. Evans [supra] and Aero Contractors Co. of Nig. Ltd v. Mr. Akintayo Akingbehin[supra]and contended that, notwithstanding his disengagement, the Defendant’s duty of confidentiality and good faith towards the Claimant subsists. He also referredtosection 280[5] of the Companies and Allied Matters Act.

Let me say straightaway that section 280[5] of the Companies and Allied Matters Act is inapplicable to this case. As can be gleaned from the heading, sections 279 to 283 of the Companies and Allied Matters Act[“the Act”] deal with duties of directors and section 280[5] cited by the learned silk refers to directors. While it is true that a heading cannot control the plain words used in a statute, it can be relied on to clarify any ambiguity. See Oyo State Board of Internal Revenue v. University of Ibadan [2013] LPELR-22151[CA] 15. This is necessary in the instant case because the word ‘officer’ in the subsection appears to take the provision out of context. For better understanding, section 280 of the Act is set out in full:

“[1] The personal interest of a director shall not conflict with any of his duties as a director under this Act.

“[2] A director shall not –

[a] in the course of management of affairs of the company; or

[b] in the utilisation of the company’s property, make any secret profit or achieve other unnecessary benefits.

“[3] A director shall be accountable to the company for any secret profit made by him or any unnecessary benefit derived by him contrary to the provisions of subsection [2] of this section.

“[4] The inability or unwillingness of the company to perform any functions or duties under its articles and memorandum shall not constitute a defence to any breach of duty of a director under this Act.

“[5] The duty not to misuse corporate information shall not cease by a director or an officer having resigned from the company, and he shall still be accountable and can be restrained by an injunction from misusing the information received by virtue of his previous position.

“[6] Where a director discloses his interests before the transaction and before the secret profits are made before the general meeting, which may or may not authorise any resulting profits, he may escape liability, but he shall not escape liability if he discloses only after he has made the secret profits, and in this case, he shall account for the profits.”

Subsection 5 of section 280 of the Act cannot be read in isolation of other subsections. A cardinal rule of interpretation of statuteis that in interpreting a section or subsection of a statute, the proper approach is to consider the subsection or section as part of a greater whole and read ittogether to get the correct meaning of any expression used in the subsection orsectionandachieve harmony amongst the subsections. See Rivers State Government of Nigeria & Anor. v. Specialist Konsult [2005] LPELR-2950[SC] 35 and Usman & Anor. v. Maccido & Ors. [2009] LPELR-8517[CA] 30. Section 280[5] of the Act read along with subsections 1 to 4 and 6 will show that the word “officer” in that subsection refers to a director and not to other officers of the company. I am fortified in my conclusion by the opinion of Dr. Olakunle Orojo in his book: Company Law and Practice in Nigeria, 5th edition page 268. While commenting on section 280[5] of the Act, the learned Author posited that:

“The duty of a director not to misuse information obtained from the company by virtue of his position continues even after he has ceased to be a director or officer of the company.”

Thus, section 280[5] of the Act has no application to the Defendant and I so hold.

In addition, parties have expressed their agreement in writing in article B.8 of exhibit 5; and the words used are clear and straight forward and must be given its ordinary meaning without introduction of any extraneous matter. See Hydro-Tech Nigeria Ltd. & Anor. v. Leadway Assurance Co. Ltd. & Ors. [2016] LPELR-40146[CA] 30-31. In Dalek Nigeria Limited v. Oil Mineral Producing Areas Development Commission [supra] at pages 49-50, Ogbuagu, J.S.C., had this to say:

“If parties enter into an agreement, they are bound by its terms. One or the other party cannot legally or properly read into the agreement the terms on which the parties have not agreed.”

In Oforishe v. Nigerian Gas Company Ltd. [supra] at page 53, Rhodes-Vivour, J.S.C, puts it more directly. He said:

“Parties are bound by the terms of the contract, and these terms should be read as they are without any embellishments. So once parties enter into a contract, on no account should terms extraneous to the contract or on which there was no agreement be read into the contract.”

The rationale for this is that parties are presumed to intend what they have in fact written down. See Ojo v. ABT Associates Incorporated & Anor. [2014] LPELR-22860[CA] 30-31. To that extent, on a literal interpretation of article B.8 of exhibit 5, I hold that the duty of confidentiality does not subsist after determination of the contract of employment.

The Claimant also argued that the duty of confidentiality can be implied into the contract of employment and relied on the cases of Robb v. Green [supra], Lamb v. Evans [supra] and Aero Contractors Co. of Nig. Ltd v. Mr. Akintayo Akingbehin[supra]. InRobb v. Green [supra] the employee secretly copied a list of customers from his employer’s order-book intending to use it after leaving employment. He left the employment, set up a similar business and used the list to the detriment of his former employer. It was held that the conduct amounted to a breach of trust. Lord Esher, M.R., quoted with approval the dictum of Bowen L.J., in Lamb v. Evans [supra] and held that:

“The common law, it is true, treats the matter from the point of view of an implied contract, and assumes that there is a promise to do that which is part of the bargain, or which can be fairly implied as part of the good faith which is necessary to make the bargain effectual.”

The case of Lamb v. Evans [supra], was a copyright action. The Plaintiff was a publisher of a tradesdirectory consisting of advertisements furnished by tradesmen, called ‘Lamb’s International Guide to Merchants and Manufacturers’. He employed the Defendants as his exclusive agents for Europe for the purpose of obtaining adverts for publication in return for commission. The Defendants, upon disengagement,joined a rival publication and copied the Plaintiff’s publication. There was no clause in the agreement preventing the Defendants from engaging in a similar business. Lindley, L.J, observed, at page 226 of the report, thus:

“What right has any agent to use materials obtained by him in the course of his employment and for his employer against the interest of that employer?I am not aware that he has any such right. Such a use is contrary to the relation which exists between principal and agent. It is contrary to the good faith of the employment, and good faith underlies the whole of an agent’s obligations to his principal.”

While the cases of Robb v. Green [supra] and Lamb v. Evans [supra] are of persuasive authority, the facts of the two cases are remarkably different from the facts of this case. First, both cases deal with the use of the proprietary property of the employers against their interest. Two, the employees worked for a rival organization. In this case, what is alleged to be disclosed has nothing to do with the Claimant’s business secrets, and the alleged disclosure is not to a rival but to his counsel. While the general principle laid down in Robb v. Green [supra] is that at common law, a term will be implied in a contract of employment which prevents the employee from using information obtained in the course of his employment for the employer’s benefit to his detriment after cessation of employment, there is no evidence before the Court that the Defendant has used any information obtained in the course of his employment with the Claimant to the Claimant’s detriment. While the disclosure of Claimant’s financial information to the Defendant’s Solicitor may be deprecated, based on the principle in Robb v. Green [supra] and Lamb v. Evans [supra], this communication cannot be said to be in breach of hisimplied duty of confidentiality, the alleged threats notwithstanding.

The third case is from this Court. In Aero Contractors Co. of Nig. Ltd v. Mr. Akintayo Akingbehin[supra] the Defendant was employed by the Claimant in its commercial department. Sequel to discovery of fraud in his department, the Defendant was placed on indefinite suspension. The Defendant got his lawyer to write to the Claimant making serial allegations against the Claimant and demanding his reinstatement, failing which he would report the Claimant to relevant agencies. The Claimant thought the letter breached the confidentiality clause in the Defendant’s contract of employment and headed to Court. Oyewunmi, J., reviewed the confidentiality clause and held that the Defendant’s Solicitor’s letter breached the confidentiality agreement.At page 27 of the judgment, she remarked thus:

“It goes without saying that the defendant revealed the above information which according to him was obtained by virtue of his position as a union leader in the claimant employ not to protect the interest of his colleagues as he alleged but for his own personal benefit, in other words to use it as a protective shield against his dismissal or disengagement from the claimant’s employ, by deploying the said confidential information to arm twist and black mail his employers the claimant into lifting his suspension. He did infact admitted [sic] that he gave the financial information to his counsel to enable him regain his job.”

The clause creating the duty of confidentiality which the Court interpreted provides that:

“During the course of their employment, any member of the Company’s staff may come to have knowledge of matters of commercial confidence, public knowledge of which may harm the Company’s business. All employees are required to treat internal Aero contractors matters with strictest of confidence and not disclose such information to any other person“. [underlining for emphasis]

Clearly, thatcase is distinguishable from the instant case.Apart from the difference in the wording of the confidentiality clause, the Defendant in that case was still in employment of the Claimant. The employment of the Defendant in the instant case has been determined. Apart from being an ex-staff, the Defendant is also a shareholder of the Claimant and this fact is manifest from paragraph 13 of exhibit 4. The case of Aero Contractors Co. of Nig. Ltd v. Mr. Akintayo Akingbehin[supra] is, therefore, not authority for the proposition that the duty of confidentiality subsists after termination of the employment relationship.

The Claimant also relied on international best practices in labour. This Court has jurisdiction over matters “relating to or connected with unfair labour practice or international best practices in labour”. See section 254C[1][f] of the 1999 Constitution as amended and section 7[6] of National Industrial Court Act, 2006. What is international best practice in labour, however, is a question of fact to be proved by evidence in accordance with sections 16 to 19 of the Evidence Act, 2011. Section 7[6] of National Industrial Court Act, 2006 provides:

“[6] The Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have a due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact.”

See also Order 14A rule 1[2] of the Rules. In doing this, therefore, the Claimant must condescend on particulars and plead and prove what obtains in other jurisdictions outside Nigeria in similar circumstances; and produce decisions from Courts in those jurisdictions on the subject matter in its final address. This was not done in this case.

In his feeble attempt to prove international best practice in labour, the Claimant’s witness in paragraph 8 of his statement on oath stated thus:

“8. In accordance with the international best practices in labour, the Defendant has a duty not to undermine or howsoever work against the interest of the Claimant even after cessation of his employment with the Claimant.”

This paragraph was lifted from paragraph 8 of the statement of facts. This paragraph and paragraphs 26 and 27 of the statement of facts did not satisfy the provision of Order 14A rule 1[2] of the Rules on pleading and proof of international best practice in labour.The standard of proof is the same standard of proof of a custom. Order 14A rule 1[2] of the Rules provides that a party relying on international best practice must plead and prove its existence in line with the provisions relating to proof of custom in the Evidence Act. Sections 16 to 19 of the Evidence Act, 2011 deal with proof of customs and the relevant provisions are set out below.

“16.[1] A custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence.

[2] The burden of proving a custom shall lie upon the person alleging its existence.

“17. A custom may be judicially noticed when it has been adjudicated upon once by a superior court of record.

“18.[1] Where a custom cannot be established as one judicially noticed, it shall be proved as a fact.”

Undoubtedly, the international best practice in labour relied on by the Claimant has not been proved in line with sections 16 to 18[1] of the Evidence Act. Learned senior counsel did not refer to any authority on similar facts to bring this case within sections 16[1] and 17 of the Evidence Act, 2011. The mere trumpeting of international best practices in labour will not suffice. It must be proved. This proof is clearly lacking and all arguments on international best practices in labour are not backed by any evidence and go to no issue.

Accordingly, issue one is resolved against the Claimant.

This leads me to the reliefs sought by the Claimant in this suit. Relief one is for a declaration that the Defendant’s threat to instigate civil and criminal investigations and prosecutions against the Claimant in Nigeria and abroad is contrary to international best practices in labour. A declaration of right is not one that is granted just for the asking. The Claimant must prove its entitlement to the declaration. See Nwagu v. Fadipe [2012] LPELR-7966[CA] 16-17.I found earlier in this judgment that the Claimant did not prove international best practices in labour as required in the Evidence Act; and that the alleged threats in exhibit 4 do not constitute a breach of the duty of confidentiality. While the threat is clearly unnecessary and in bad taste, there is no evidence before me to show it is contrary to international best practices in labour. In any event, the law imposes a duty on a citizen to report commission of a crime to security agencies. See Udo & Ors. v. Essien & Ors. [2014] LPELR-22684[CA] 16. The interest of the public outweighs any benefit which may accrue to the Claimant from the non-disclosure. In the circumstance, the condition for grant of the declaration has not been satisfied. This relief fails.

Relief two is for a declaration that the Defendant, a former employee of the Claimant has no right whatsoever to publish or make known to the Corporate Affairs Commission, Securities and Exchange Commission, Economic and Financial Crimes Commission and/or to any agency or body whosoever, any information on the conduct of the Claimant’s business, its management and members of its Board Of Directors. This relief is based on the contractual duty to keep Claimant’s confidential information. I found earlier in this judgment that the term of the employment contract creating the duty was not proved. It is trite law which requires no citation of authority that you cannot place something on nothing and expect it to stand. The basis of the claim is non-existent and no declaration can be made in the absence of an established right. In addition,the law imposes a duty on a citizen to report commission of a crime to security agencies. See Udo & Ors. v. Essien & Ors. [supra].Therefore, the Court cannot fetter a citizen’s right to report the commission of crime on account of a confidentiality agreement. The interest of the public outweighs any benefit which may accrue to the Claimant from the non-disclosure. This relief fails.

Relief three is for a declaration that the Defendant’s threat to instigate civil and criminal investigations against the Claimant in Nigeria and abroad, on account of the disengagement of the Defendant’s employment is contrary to international best practices in labour. What constitutes international best practices in labour is a question of fact which must be proved by evidence. This proof is lacking in this case. Moreover, this relief is similar to relief one above. I adopt my reasoning and conclusion therein and hold that the Claimant is not entitled to the declaration sought. Nonetheless, a situation where employees resort to threats and blackmail on account of termination of their employment must be deprecated. It is an unhealthy practice that must be checked. This relief equally fails.

Relief four is for a declaration that the Defendant’s use or threat or plan to use sensitive confidential information obtained in the course of Defendant’s employment with the Claimant, against the interest of the Claimant is contrary to international best practices in labour. This relief is a rehash of reliefs one, two and three above. Istated elsewhere in this judgment that there is no evidence to show the Defendant possessed Claimant’s sensitive confidential information. The Claimant’s witness, under cross-examination, confirmed that “it did not occur to him that the Defendant possessed some sensitive information. He acknowledged that insurance contract is a contract of good faith but denied that the Claimant has no confidential information to be protected because there are [sic] business information which are used in taking business decisions which are confidential especially to manage competition. He stated that the Defendant was not on the verge of disclosing any of such information.” In paragraph 5 of the Defendant’s statement on oath, the Defendant denied that he possessed any sensitive confidential information relating to the Claimant and that the Claimant’s Managing Director “is the person in charge/custody of the Claimant’s sensitive confidential information relating to the Claimant’s business secrets, peculiar business trading strategies, applications, operations and management policies and Board of Directors.” This was a reproduction of paragraph 4 of the statement of defence and counterclaim. The Claimant did not controvert this evidence. The Defendant’s evidence juxtaposed with the Claimant’s witness’ answer to cross-examination question irresistibly show that the Defendant does not have Claimant’s sensitive confidential information and has not worked against the Claimant’s interests. In addition, the alleged threats in exhibit 4 do not constitute a breach of the duty of confidentiality and therefore not an actionable wrong. While the threat is self-serving, there is no evidence that it is contrary to international best practices in labour. This claim thus fails.

Relief five is for a declaration that the Defendant’s duty of confidentiality to the Claimant with respect to information which came into the Defendant’s possession in the course of his employment with the Claimant between 1st August 1993 and 3rd August 2016, subsists and consequently binding on the Defendant.As stated earlier, the Claimant has not proved the existence of any contractual duty by the Defendant to maintain its confidential information. To that extent, the justification for this declaration has not been made out. In any event, the claim is wide and lacking in specifics and it is trite that where a party’s claim is wide and unmanageable the Court will refuse to grant it. See Attorney-General of Ogun State & Ors. v. Attorney-General of the Federation [2002] 12 S.C. [pt.11] 1 at 29-30 and Eigbe v. Eigbe [2012] LPELR-19690[CA] 14.This claim accordingly fails.

Relief six seeks a declaration that the Defendant cannot, without prior written consent of the Claimant disclose any information concerning the business of the Claimant, its staff, management and Board members to the Securities and Exchange Commission, Corporate Affairs Commission, Economic and Financial Crimes Commission or any other agency or body. This claim is similar to relief two. I adopt my reasoning and conclusion above. Let me reiterate that it is the duty of every citizen to report commission of a crime to appropriate agencies. See Udo & Ors. v. Essien & Ors. [supra]. In addition, the term of the employment contract prescribing this duty has not been proved. A declaration of right is not made in vacuo. The right must be established before the Court can pronounce on it. Consequently, the claim fails.

Relief seven is for a declaration that the Defendant having accepted payment of severance benefits paid into his account by the Claimant is estopped from demanding the sum of N400 million or any other sum or opportunity to resign from the Claimant’s employment, from the Claimant. The pleading in support of this relief is contained in paragraphs 14, 15, 16, 22, 24 and 29 of the statement of facts which are reproduced in paragraphs 14, 15, 16, 22, 24 and 29 of the statement on oath. In his submission, learned senior counsel for the Claimant argued that it is good labour practice that the Defendant who worked with the Claimant for over twenty years should act towards it with good faith. He pointed out that there is credible and unchallenged evidence on the record of this Court that the Defendant was entitled to three months’ salary in lieu of notice but was paid N74, 271,498.92 noting that the Claimant in disengaging the Defendant discharged its obligations to the Defendant. He explained further that there is no evidence that the Defendant made a complaint to the Claimant, rejecting the sum of N74, 271,498.92 or components of the payment. Consequently, he argued, there was no basis for the Defendant to threaten and blackmail the Claimant on account of his disengagement. The Defendant’s response is in paragraphs 8 and 15 of his statement of defence and counterclaim, which are reproduced in paragraphs 9 and 14 of his statement on oath. He equally relied on exhibit DW1 which is his performance evaluation report for 2011. The summary of the Defendant’s defence is that he has not been paid all his entitlements on account of his overdue promotion to the office of General Manager. However, he did not deny that by his contract, he was entitled to three months’ salary in lieu of notice. He equally did not deny receipt of N74, 271,498.92 being settlement of his severance benefits. In the circumstance, the evidence of Claimant’s witness is credible and unchallenged and ought to be accepted and acted upon by the Court. See Kayili v. Yilbuk & Ors. [2015] 1-2 SC 124 at 152.

The law is settled that when an employer brings the contract of employment to an end by terminating it, the employment relationship ceases and the employee’s right is to his terminal benefits. The employee cannot at his own option keep alive a contract of employment which has been terminated. See Eyesan v. N. N. P. C. [2012] LPELR-19667[CA] 30-31.While the demand, strictly speaking, is of no moment and the Claimant is at liberty to ignore it, I am satisfied that there is an element of irritation and harassment implicit in the demand. For that reason,having received payment of his severance benefits from the Claimant without complain, the Defendant is estopped from demanding payment of the sum of N400 million or any other sum whatsoever. This relief thus succeeds.

The next relief is for an order of injunction restraining the Defendant by himself, his Solicitors, agents or any other person[s] whomsoever from directly or indirectly instigating or causing the instigation of civil and/or criminal investigation and/or prosecution of the Claimant or any member of its Board, on account of the issues raised in the Defendant’s Solicitors letter dated 11th October 2016 or any other issue which arose in the course of the Defendant’s employment with the Claimant. The pleading in support of this relief is paragraph 30 of the statement of facts which was reproduced in paragraph 30 of the Claimant’s witness’ statement on oath. The parties did not canvass arguments in support of this relief.

Notwithstanding this, injunction is an equitable remedy and is usually granted to protect an established right. See Odom & Ors. v. The Peoples Democratic Party & Ors. [2015] 2 S.C. [pt.1] 1 at 41.This relief is in the nature of perpetual injunction and it is trite law that a perpetual injunction will only be granted in favour of a party who satisfies the Court that he has a legal right to be protected. See Ojo v. Akinsanoye [2014] LPELR-22736[CA] 60 and Ogiefo v. Isesele 1 & Ors. [2014] LPELR-22333[CA] 59. In the latter case, Saulawa, J.C.A., held:

“A Court of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on speculation or conjecture on the part of the trial judge that the plaintiff seems to have proved his case. Perpetual injunction, because of its very nature of finality can only be granted if the plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”

Also, this claim is dependent on reliefs one to six above. Once the principal relief is refused, no relief incidental to the principal relief can be granted. See Ukelere v. First Bank of Nig. Plc [2011] LPELR-3869[CA] 29.Finally, every citizen has a duty to report the commission of a crime and it is within the powers of the investigating authority to decide on appropriate course of action. The justification for this injunctionhas not been made out and it is consequently refused.

Relief nine is for an order of injunction restraining the Defendant by himself, his Solicitors, agents or another person(s) whomsoever, from directly or indirectly instigating or causing the instigation of civil and/or criminal investigation of the Claimant and/or any of its Directors and/or Management Staff by the Corporate Affairs Commission and/or Securities and Exchange Commission and/or Economic and Financial Crimes Commission or any other agency or regulatory body.The law imposes a duty on a citizen to report commission of a crime to security agencies. See Udo & Ors. v. Essien & Ors. [supra].Therefore, the Court cannot fetter a citizen’s right to report the commission of crime for any reason, as doing so will be against public policy. Also, this relief is similar to relief 8. I adopt my reasoning and conclusion above and hold that there is no justification for the grant of the injunction which is consequently refused.

The next claim is for cost in the sum of N10, 000,000.00. There is no pleading in support of the claim for cost and parties did not urge anything on the Court. However, costs follow the events in litigation and as such, a successful party is entitled to costs unless there are special reasons to deprive him of costs. See Jaiyeola v. Abioye [2002] LPELR-7169[CA] at page 28.Indisputably, award of cost is within the discretion of the Court which must be exercised judicially and judiciously. See Order 55 rules 1 and 4 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017.The main aim of cost is to indemnify the successful party for his out of pocket expenses and be compensated for the true and fair expenses of the litigation taking the facts of each case into consideration. See Citibank Nigeria Limited v. Ikediashi [2014] LPELR-22447[CA]. However, there is no justification for award of cost in favour of the Claimantin this case.

This leads me to the counterclaim. The Defendant counterclaimed against the Claimant for:

A declaration that the termination of the Counter-Claimant’s employment by the Claimant is wrongful and therefore null and void and of no effect whatsoever.

A declaration that the denial of the Counter-Claimant’s promotion entitlement to the rank of General Manager of the Claimant since 2012 by the Claimant is wrongful.

An order rein-stating the Counter-Claimant as the Group Head of Information and Communications Technology [ICT] Department of the Claimant.

The sum of N75,000,000.00 [seventy-five million naira only] against the Claimant being the accumulated salaries which the Counter-Claimant would have earned from 2012 to date as a General Manager of the Claimant.

The sum of N150,000,000.00 [one hundred and fifty million naira only] against the Claimant for wrongful termination of the Counter-Claimant employment.

N5,000,000.00 [five million thousand [sic] naira only] against the Claimant being legal cost and incidental expenses undertaken by plaintiff in instituting this suit.

Learned counsel for the Defendant contended that the Defendant’s employment was wrongfully terminated. Heanchored his argument on breach of the rules of natural justice.He explained that the outcome of investigations against him was not communicated to him and no reason was given for termination of Defendant’s employment. He relied on the cases of AfolayanAderonke v. Skye Bank[supra], NEPA v. El-Fandi [supra]andEdward Aiyetan v. Nifor [supra] and the International Labour Organization’s Discrimination [employment and Occupation] Convention, 1958 No. 111 which stipulates that where an employer terminates the employment of an employee, he must give reasons for such termination.He argued that since the allegation against the Defendant involved a crime it should have been proved in court before his employment was terminated. He referred to section 36[4] of the 1999 Constitution andSavannah Bank Nig. Plc v. Fakokun[supra].It was submitted that having established that the Defendant’s employment was wrongfully terminated, the Defendant is entitled to damages which is the salary he would have earned but for the premature termination of his employment, and may include loss of any benefit which he was entitled to. The cases of Nigerian Maritime Administration and Safety Agency v.Stephen Odey [supra] andOsisanya v. Afribank[supra] were referred to. He referred to paragraphs 15, 28, 29, 30, 31, 32, 33, 34, 37, 38, 39 and 40 of the statement of defence and counter-claim and exhibits DW1 to DW13 and argued that the Claimant did not object to admissibility of the exhibits and is therefore deemed to have waived the unfulfilled condition. Isa Kassim v. The State [supra] andAttorney-General of Oyo State v.Fair Lakes Hotels Limited [supra] were cited in support. He noted that the object of certification of electronic documents is to establish the reliability of the computer used to produce the document,but reasoned thatsection 84 of the Evidence Actdid not specifyany form of certification. He contended that authentication goes beyond appending a signature on the email. Learned counsel explained that the Defendant laid proper foundation before tendering the emails and showed the reliability of the computer which produced it. Omisore v.Aregbesola &Ors.[supra]was referred to. For this reason, he argued that the Defendant adduced unchallenged evidence to prove his claims. He explained that the Claimant tried to impugn the integrity of the exhibits during cross-examination on the unfancied argument that the documents contain a disclaimer which does not make the documents less authentic.

In response, Claimant’s counsel submitted that a party seeking declaratory reliefs must prove his entitlement to the reliefs by credible evidence and rely on the strength of his case. He referred to Fiicharles Organ & Ors. v. N.L.N.G Ltd & Ors. [supra]. He argued that having failed to plead and prove the terms of his employment there is no legal basis for judicial appraisal of the Defendant’s claims. He relied on Odom v. PDP [supra]and Fagbenro v. Arobadi [supra] and urged the Court to dismiss the counter-claim. It was submitted that having failed to prove his entitlement to the declaratory reliefs, the ancillary reliefs cannot be granted since it has no life of its own. Unilorin Teaching Hospital v. Abegunde [supra] and M.C. Investment Ltd. v. Prof. J.T. Duncan [supra] were cited in support. In the alternative to the above, he argued that the Defendant failed to adduce credible evidence to warrant the grant of the declaratory reliefs sought as all the exhibits are worthless documents and have no bearing whatsoever to the reliefs.Counsel argued further that reliefs [a], [b], [c], [d] and [e] are conceptually contradictory and not grantable. Whereas, the Defendant in one breadth is seeking declaration that the termination of his employment is null and void and praying for reinstatement, in another breadth he is seeking the sum of N75 million as alleged accumulated salaries from 2012 for the office of General Manager. This contradiction, he noted, implies that the Defendant is uncertain as to what he wants. It was argued that having received the sum of N74, 271,498.92 severance package the Defendant has, by implication, accepted his termination. Ekeagwu v. Nigerian Army [supra] and Julius Berger [Nig.] Plc v. Nwagwu [supra] were cited in support.The learned silk referred to paragraphs 8.00 to 8.15 of the Defendant’s final written address and argued that these paragraphs raise fresh issues contrived to lend support to Defendant’s unsubstantiated submission that his employment was terminated without giving him a fair hearing on an alleged non-existent criminal investigation panel set up in 2011 by the Claimant and relied on Airtel Networks Ltd v. George & Ors. [supra].

He contended that the Defendant’s reliance on the cases of Afolayan Aderonke v. Skye Bank [supra]and NEPA v. El-fandi [supra]amongst others is misplaced in that the law is trite that an employer is not bound to give any reason for terminating the appointment of a servant where the employment is not one with statutory flavour. Ativie v. Kabelmetal Nig. Ltd [supra] was cited in support. On alleged waiver of the condition precedent for reception in evidence of computer-generated documents in section 84 of the Evidence Act, 2011, he submitted that section 84 of the Evidence Act is a mandatory provision which cannot be waived and urged the Court to dismiss the counter-claim with substantial cost.

The issue for determination is whether the Defendant has proved his counterclaim? Like in the principal claim and, as rightly argued by the learned silk, the burden of proving the counterclaim rests squarely on the Defendant who must succeed on the strength of his case. See sections 131 and 136 of the Evidence Act, 2011 and the cases of U. B. N. Plc v. Ravih Abdul & Co. Ltd. [2019] 3 NWLR [pt.1659] 203 at 224 and Tyonex Nigeria Limited & Anor. v. Pfizer Limited [2020] 1 NWLR [pt.1704] 125 at 161. Facts in support of the counterclaim are contained in paragraphs 15, 25 to 46 of the statement of defence and counterclaim. These paragraphs were reproduced in paragraphs 14, 24to46 of the Defendant’s statement on oath. The Claimant’s response is in paragraphs 2, 4, 6, 7 to 13 of its defence to counterclaim; which were reproduced in paragraphs 34, 35, 37 to 39, 41 to 49 of the Claimant’s witness’ statement on oath.

A summary of the Defendant’s evidence relevant to the counterclaim shows that he worked for 23 years before his employment was allegedly prematurely and wrongly terminated by Claimant’s Managing Director.It is his case that for 17 years prior to the advent of the Managing Director, he rose rapidly to the position of Assistant General Manager and Head of the ICT department and did not receive any query during this period. He was instrumental to taking the Claimant to its greatest height in the reinsurance industry. He claimed that the sum of N74, 271,498.92 which purpose, composition and computation was neither verified nor agreed to by him was forcibly paid into his account just to get rid of him but he has not been paid all his entitlements and was overdue for promotion as General Manager since 2012 which was denied him. According to him, he would have earned additional N10m in cash and other non-cash remunerations which to date would have amounted to N75m. He explained that he is a fellow of the Nigerian Computer Society and shareholder of the Claimant and functioned as the Group Head of ICT department and coordinated all Claimant’s ICT projects and activities in its six ‘physical offices’ in Africa and put the Claimant on the world ICT map. He equally saved the Claimant huge sums of money through his ingenuity which the Claimant’s Managing Director frowned at and he displayed public aggression against him including excluding him from Board Committee meetings, Management staff retreat sessions, delay in approving legitimate projects, denial of promotion to the position of General Manager from 2011/2012 resulting in loss of cash and non-cash remunerations, rejection of audit report by Inpoint Inc. and awarding a similar contract to his preferred company, Dimension Data. The strained relationship between him and Claimant’s Managing Director continued until 25th May 2016 when he was served a query which he promptly answered but was not invited by the Board for questioning on his response as is the Claimant’s practice before his employment was terminated. He identified some documents namely: the staff performance evaluation report, evidence of shareholding, email titled WhizRe-cost valuation 2015, Microsoft award, email communications, Microsoft Office 365, Appendix recognition Ghana Re-B, email projects and bills, Appendix email-solutions, email communications between Defendant and other staff, Continental Re alignment of business processes and IT infrastructure, ICT audit review, Continental Re advance retirement/expenditure request forms, Claimant’s inter office memo, another Claimant’s inter office memo which were received in evidence and marked as exhibits DW1 to DW15 respectively. During cross-examination he acknowledged receipt of N74, 271,498.92 but stated that he complained to the Board about the amount paid to him and informed them that the money was available to be returned to the company as soon as he received an account to pay it into. As a result, he did not sign the disengagement letter. He equally stated that he did not tender the letter he wrote to the Board but would like to tender it. He was shown exhibits DW1 and DW2 and he confirmed they are unsigned, but noted that exhibit DW2 was obtained from CSCS and his name is on it but faded. He read out a statement on page 2 of exhibit DW6 but said it does not constitute a disclaimer. He was shown exhibit DW8 which he said was not signed because e-documents are not signed and the document was printed by Kayode Faseyitan, his immediate subordinate. He confirmed that exhibit DW9 is incomplete and page 35 is not the end of the document. He also confirmed that exhibit DW10 was electronically generated and was not signed because emails are not signed. He equally confirmed that exhibit DW11 was electronically generated and was not signed. He explained that there is a disclaimer at the bottom of each page. He confirmed that pages 4 and 9 of exhibit DW12 are not attached but that the full document is with Claimant and pages 41 and 42 of exhibit DW15 are not clear.

The law is settled, as rightly argued by learned senior counsel for the Claimant, that an employee who complains that his employment has been wrongfully terminatedmust found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service. See sections 131[1] and 133[1] of the Evidence Act 2011 and the cases of Patrick Ziideeh v. Rivers State Civil Service Commission [2016] 9 ACELR 22 at 31and Idoniboye-Obu v. N.N.P.C. [2003] 1 S.C. [pt.1] 40 at 55-56.In Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 -761, Niki Tobi, J.C.A. [of blessed memory, as he then was] posited that:

“The onus is on the person alleging wrongful dismissal or termination of appointment to so prove. See College of Medicine v. Adegbite [1973] 5 SC 149. And he has to discharge the onus by relying on the contract of service and the notice of wrongful dismissal and termination. The law will not allow the party to vegetate on general common law provisions which are not contained in the contract or anticipated therein.”

In Oforishe v. Nigerian Gas Company Ltd. [supra] at page 61, Galinje, J.S.C., in his contributory judgment opined that:

“Where an employee complains that his employment has been wrongfully terminated, he has the onus to prove the wrong by –

[a] Placing before the court the terms and conditions of the contract of employment; and

[b] Proving in what manner the said terms were breached by the employer.

The terms of contract of service are the bedrock of any case where the issue of wrongful termination of employment calls for determination.”

From the summary of the Defendant’s evidence above, it is clear that he did not plead, and consequently did not prove, the terms and conditions of his contract of employment. He tendered exhibits DW1 to DW15. None of these exhibits contained the terms of his contract of employment. Exhibit DW1 is his unsigned performance evaluation report, which does not show he was recommended for promotion to the position of General Manager. Exhibit DW2 is his evidence of shareholding in the Claimant. Exhibits DW3 to DW13 are records of his activities in the Claimant. Exhibit DW14 is copy of query issued to him, while exhibit DW15 is his answer to the query. Exhibits DW1 and DW2 are unsigned documents and have no evidential value. See Ojo v. ABT Associates Incorporated & Anor. [2017] 9 NWLR [pt.1570] 167 at 193.Exhibits DW3, DW5 to DW10 are computer generated documents which were tendered in breached of section 84[1], [2] and [4] of the Evidence Act, 2011. As I stated elsewhere in this judgment, the conditions specified in subsection 2 are mandatory and non-compliance affects the admissibility of the documents. See Kubor v. Dickson [supra].This is so notwithstanding the failure of Claimant’s counsel to object to its admissibility at the trial. Such evidence must be disregarded by the Court when writing its judgment. As a result, the issue of waiver does not arise. See Shittu & Ors. v. Fashawe [supra]. This leaves us with exhibit DW4 which is an award to the Claimant and exhibits DW11 to DW15. Exhibit DW11 is Inpoint audit report, exhibit DW12 is a proposal by Dimension Data, exhibit DW13 is expense retirement forms, while exhibits DW14 and DW15 are query and reply to query. So, the documents necessary to prove the Defendant’s counterclaim are not before the Court.

A diligent examination of the Defendant’s pleading will show that it is bereft of facts in support of the counterclaim. Paragraph 22 of the counterclaim repeats paragraphs 1 to 19 of the statement of defence. The paragraph of the statement of defence relevant to the counterclaim is paragraph 3 which states thus:

“3. The Defendant admits paragraph 4 and further avers that he had worked with the Claimant for 23 best working years [from September 1993 to August 2016] until his employment was prematurely and wrongly terminated by the Claimant’s Managing Director after he was employed by the Claimant. The Defendant further avers that within the said best working years and prior to the employment of the Claimant’s Managing Director he was never queried for anything by the Claimant. Within the 23 years, the Defendant rose sporadically to the high rank of Assistant General Manager before becoming the Head of the Claimant’s Information and Communication Technology [ICT] Department. The Defendant avers that he was instrumental in taking the Claimant to its greatest height in the Reinsurance Industry.”

The terms of his contract which entitles him to the reliefs sought in the counterclaim were not stated. Paragraphs 25 and 26 are similar to paragraph 3 which is reproduced above. Paragraphs 27 to 36 deal with his activities andachievements. Paragraphs 37 to 46 detailed his disagreement with Claimant’s Managing Director resulting in the query and eventual sack. Nowhere in these 47 paragraphs are the terms of his contract and his entitlements stated. I have gone to this length to show that there is nothing in the pleading to sustain the counterclaim. Invariably, there is no evidence in proof of the counterclaim. In Patrick Ziideeh v. Rivers State Civil Service Commission [supra]at page 38, Ogbuagu, J.S.C., in his contributing judgment remarked thus:

“I note that the appellant, at the trial court, did not plead, produce or tender, the terms and conditions of the contract of his service for [or] employment. The court is therefore, unable to find, in what manner, the said terms, were breached by the respondent. It is now firmly established that where an employee complains that his employment has been wrongly terminated, he has the onus, to prove how and in what manner, by the production of the terms and conditions of the contract of service.”

None was produced and no evidence was led in proof of the counterclaim. Therefore, issue two is resolved against the Defendant.

Having not discharged the burden placed on him to prove the counterclaim, there is nothing for the Claimant and Defendant to the counterclaim to rebut. See Nduul v. Wayo& Ors.[supra]. Also, there is no need to consider the reliefs sought in the counterclaim.

Assuming I am wrong, I will proceed to consider the reliefs claimed by the Defendant. Relief one is for a declaration that the termination of the Counter-Claimant’s employment by the Claimant is wrongful and therefore null and void and of no effect whatsoever. The basis of this claim is as averred in paragraph 44 of the statement of defence and counterclaim; which is that the Claimant’s Board of Directors did not invite him to answer questions after submission of the answer to the query before termination of his employment. In the Defendant’s final written address, counsel argued that the termination is wrongful because the Defendant was denied fair hearing because he was not informed of the outcome of the investigation against him and no reason was given for his termination. As stated above, the relevant terms of the Defendant’s contract of employment were not pleaded and, consequently, were not proved. There must be a finding of fact before I can make the declaration sought. In Nasco Town Plc & Anor. v. Mr. Festus Ude Nwabueze [2014] LPELR-22526[CA] 24-25, Augie, J.C.A. [as he then was], put it succinctly thus:

“…a party claiming a declaration of right, must provide evidence – see Bello v. Eweka [supra], where the Supreme Court per Obaseki, JSC held – “Where a court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the Defendant that he is entitled. The necessity for this arises from the fact that the Court has discretion to grant or refuse the declaration and the success of a Claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence.”

In any event, it is settled law that this Court cannot declare termination of an employment which does not enjoy statutory flavour null and void and of no effect whatsoever. See Oforishe v. Nigerian Gas Company Ltd. [supra] at page 54.

Be that as it may, there is no evidence that any panel was set up to investigate the Defendant. The evidence before the Court shows that the Defendant was issued a query and he answered the query. This satisfies the rule of fair hearing. See African Newspapers Ltd. & Anor. v. Akano [2014] 4 ACELR 60 at 70and Eze v. Spring Bank Plc [2014] 3 ACELR 39 at 53. In addition, in a simple contract of employment, the employer is not obliged to give reason for the termination and the motive for terminating the employee’s employment is irrelevant. See Oforishe v. Nigerian Gas Company Ltd. [supra] at pages53-54 and Anaja v. United Bank for Africa Plc [2014] 4 ACELR 78 at 91.

While I entirely agree with the principle in Afolayan Aderonke v. Skye Bank Plc and the Termination of Employment Convention, 1982 [No. 158], especially where an employee is dismissed, it will be difficult to accept that where parties agree that either of them can terminate the contract by notice or salary in lieu; and the employer terminates the contract by paying salary in lieu of notice, it is obliged to state a reason for the termination. In my view, this will amount to re-writing the contract for the parties, which a Court of law is not empowered to do. For these reasons this relief fails.

The second claim is for a declaration that the denial of the Counter-Claimant’s promotion entitlement to the rank of General Manager of the Claimant since 2012 by the Claimant is wrongful. The fact in support of this claim is in paragraph 37[d] of the counterclaim, which is reproduced in paragraph 36[d] of his statement on oath, which states:

“More importantly, Dr. Oyetunji denied me my recognitions and promotion to the General Manager of the Claimant, which was due since 2011/2012, and by doing so, denied me N10 million per annum in cash remunerations, and, other non-cash remunerations. Consequently, I lost about N75 million in earnings from 2012 till date. [The Counter-Claimant pleads the copies of Staff Performance Evaluation Reports of the Counter-Claimant]”.

I stated elsewhere that the Staff Performance Evaluation Report was not signed, and there is nothing on the face of it to show that the Defendant was recommended for promotion to the position of General Manager. In addition, the relevant terms of his contract dealing with promotion were not pleaded or proved. In the circumstance, the justification for this declaration has not been made out. The claim, therefore, fails.

The third claim is for an order reinstating the Counter-Claimant as the Group Head of Information and Communications Technology [ICT] Department of the Claimant. This claim is dependent on relief one above which has been refused. Once the principal relief is refused, no relief incidental thereto can be granted. See Ukelere v. First Bank of Nig. Plc [supra].In addition, it is settled law that an order of reinstatement is not available in a simple contract of master and servant. See Oforishe v. Nigerian Gas Company Ltd. [supra] at page 54. This relief also fails.

Relief four is for the sum of N75, 000,000.00 [seventy-five million naira only] against the Claimant being the accumulated salaries which the Counter-Claimant would have earned from 2012 to date as a General Manager of the Claimant. This claim is dependent on relief two which has been refused. It is trite law that once the principal relief is refused, an ancillary claim cannot be granted. See Ukelere v. First Bank of Nig. Plc [supra]. Also, the terms of his contract of employment entitling him to this amount was not pleaded. The basis of computation was equally not stated. This relief fails.

Relief five is for the sum of N150, 000,000.00 [one hundred and fifty million naira only] against the Claimant for wrongful termination of the Counter-Claimant employment. This claim is dependent on relief one which has been refused. It cannot, therefore, be granted. Also, this claim, as rightly argued by learned senior counsel for the Claimant, contradicts relief three which seeks reinstatement and, having not been claimed in the alternative, is not grantable. In any event, relief one having failed, this relief must equally fail. I so hold.

Relief six is for N5,000,000.00 [five million naira only] against the Claimant being legal cost and incidental expenses undertaken by plaintiff in instituting this suit.There is no pleading or evidence in support of the claim for cost and parties did not urge anything on the Court on cost. While cost is discretionary, the discretion must be exercised judicially and judiciously. See Order 55 rule 1 of the Rules. This counterclaim is unmeritorious. Thus, the basis for award of costs does not arise. This claim, therefore, fails.

In conclusion, the Claimant’s case succeeds in part. Reliefs 1, 2, 3, 4, 5, 6, 8, 9 and 10 fail and are hereby dismissed. Relief 7 is granted. It is hereby declared that having received payment of N74, 271, 498.92 severance benefits paid into his account by the Claimant, the Defendant is estopped from demanding the sum of N400 million or any other sum or opportunity to resign from the Claimant.

The counterclaim fails in its entirety and it is hereby dismissed. There shall be no order as to costs.

Judgement is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

23/1/2020

Attendance: Claimant absent, Defendant present.

Appearances:

Mrs. Olayemi Badewole for the Claimant

A.C. Ekwowusi for the Defendant

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