IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

 

DATED 24^th MARCH 2026                                                                         Suit No: NICN/LA/95/2023

 

BETWEEN

 

MRS JOY OZIRI                                   ……………         CLAIMANT 

 

 

AND 

 

HELLO PRODUCTS LIMITED 

(formerly Jagal Pharma)                                ………               DEFENDANT 

 

REPRESENTATION:

S. Olanrewaju Emmanuel for the Claimant 

A. T Omaghomi with Ugochinyere Onwuka for the Defendant

 

JUDGMENT

 

By a general form of complaint filed on the 30^th March, 2023 the claimant in paragraph 18 of the statement of fact claimed the following reliefs against the defendant:

 

 

 

Accompanying the complaint are statement of facts, written statement on oath, list of witnesses, documents to be relied upon on trial dated and filed 30^th March, 2023.

 

The defendant filed its statement of defense in paragraphs 1-33, with witness written statement on oath (dated and filed 26^th June, 2025) and documents to be relied upon at trial dated and filed 11^th May, 2023.

 

The Claimant’s Reply to the defendant’s Statement of Defence is dated and filed 10^th July, 2023. 

 

The summary of the facts pleaded by the claimant is that she was employed as a casual staff by the Defendant Company formerly known as Jagal Pharma Company in July 2010 and that her salaries were being paid by hand between July 2010 - December 2010; that in January 2011, she given a form to fill and a salary account was opened for her with Access Bank by the Defendant; that as a result of her excellent performance since inception of her employment in the defendant and that when it was exactly three (3) years of unbroken service, the defendant in July 2013 testified to her outstanding performances as she was always and constantly over-exceeding her monthly target issued her a letter of offer of employment dated 6^th July 2013; that the letter ought to have been written and given to her within three months of her employment in July 2010 but the Defendant refused, failed and neglected to obey the laws as stipulated by the Labour Act; that despite her great productivity and constant conscientious services rendered to the Defendant, the Defendant through a letter dated April 11, 2017 terminated her employment without paying her gratuity but paid other members of staff their gratuities against and contrary to Natural justice, good conscience and equity and other treaties like ILO Equal Remuneration Convention 1951 and Discrimination (Employment and Occupation Convention) 1958; that after receiving the termination letter, she was told by her supervisor that the reason for the termination of her employment was because the new management wanted to adopt system whereby they convert the regular staff to contract staff; that she was only paid One Hundred and Eighteen Thousand Naira only (N118,000.00) as terminal benefit in the following manner: 

 

 

One Month Salary                        N43,000.00. 

 

One Month in Lieu of Notice                 N43,000.00 

            

Leave Allowance N32,000.00 

 

             N118,000.00 

 

That the defendant has failed, refused and neglected to pay her gratuity of hard work of unbroken services and employment for seven good years from July 2010 to April 11, 2017 with the Defendant; that the defendant contravenes several provisions of both National and International Laws and Treaties which Nigeria has ratified and domesticated; that they were being taught of the following computation by her supervisors and management of Jagal Pharma Limited when it had not changed its name to Hello Products Limited and same computation was applied to her colleagues who were paid their gratuity 

 

 

Total Package (A Plus + B)  N677,735.06 

 

Net Pay Per Month Multiply 

by Number of Years of Service + 

Extra Net Pay Per Annum + Extra 

Net Pay Per Month 

 

Total Package (A Plus + B)                          N677,735.06 

 

Net Pay Per Annum                                         N516,684.00 

 

Net Pay Per Month                                           N43,057.00 

 

Multiply by (7) Seven years of 

Service + (plus) Extra Net Pay Per 

Annum + (plus) Extra Net Pay Per Month 

 

The total grand of my gratuity is Nine 

Million Two Hundred and Twenty-Two 

Thousand and Seventy-Three Naira Forty      

Two Kobo                                                              N9,222,073.42

 

That the Total Package A+B, Net Pay Annum, and Net Pay Per Month are contained in page 3 of her letter of offer of employment.

 

In her reply to the defendant’s statement of defence; CW stated that she was not employed in July, 2010 as a commissioned agent and that there is no agreement of commission agency between her and the defendant; that the Defendant regulate my employment with resumption time from Monday­-Saturday, 8am-5pm, price to sell commodities, among other rules and conditions; that it was clear to her and the Defendant that she is a temporary staff/casual under a salary and incentive on products if target is met which was also applicable to her when she became a full staff in 1^st July 2013; that the company deliberately did not give her and other staff the employee Hand book so as to be ignorant of their rights and to infringe on those rights despite her request for same; that she is not aware of any removal of terminal benefit as same was not served on her nor communicated to her.

 

Under cross examination by the defendant’s counsel, CW stated that she does not know if she is not entitled to gratuity as a casual staff in 2010; that there is no letter from the defendant stating that she is no longer a casual staff or a full staff; that her tendered I.D card issued by the defendant in 2011 indicated that she was a temporary staff; CW reiterated that the sums received from the defendant was benefits and not gratuity; CW confirmed that she filed the instant suit four years after collecting her full and final entitlement. 

 

There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed her case. 

 

The defendant opened its defence by calling its sole witness, Joseph Olley, the Human Resources Manager of the defendant, wherein she adopted her witness statement on oath as evidence in this case. The defendant’s witness statement on oath is that the Claimant was not employed as a staff of the Defendant in 2010 but was contracted as a commission agent/sales representative/independent contractor in 2010 and that as at the time the claimant was contracted to act as its sales representative in 2010, the Defendant was known as Jagal Pharma Company engaged in the sale of medical equipment, Hospital pharmaceuticals and other related items; that at all material times between 2010 - 2013, the relationship between the Claimant and the Defendant was one of contract for service. That the Defendant through a letter of offer of employment dated 6^th July, 2013 but effective 1^st July, 2013 offered the Claimant employment for the very first time; that it is not true that prior to this date (1^st July, 2013), the Claimant was offered any employment and neither was there any obligation on the Defendant to offer the Claimant any offer letter of employment within three months from July 2010; that the Claimant did not work for the company for an unbroken period of three (3) years i.e. from 2010 to 2013 as her contract automatically lapsed after the expiration of 12 months and continued as an independent contractor and subsequently from 1^st July, 2013, she was offered employment as a staff because of her impressed performance as a sales agent; that the defendant is not in any way indebted to the Claimant and this was made known in its letter of May 20^th, 2022 from its solicitors and that the defendant has been good to the Claimant despite first being an independent contractor and later from 1st July, 2013, a staff and never defaulted in payment of all her fees and salaries and other benefits as contained in the enrolment form and letter of employment. 

 

That from July 2010 when the Defendant engaged the services of the Claimant as a sales agent/independent contractor, it was clear to both parties that the Claimant would help sell the Defendant's product as a sales agent and would only get paid commission on sales made and that at no time was the Claimant engaged as a staff of the Defendant during the period from July 2010 to June 2013; that the claimant upon being satisfied with the terms and conditions contained in the said letter, did append her signature and accepted the offer made therein unequivocally, without any modification on her own part or outright rejection of the offer or any term contained therein nor accepted the offer under pressure or duress as she was comfortable with the terms and conditions including the clear provisions contained therein that - "This will take effect from 1^st July, 2013." That the offer of employment of 6^th July, 2013 but effective 1^st July, 2013 was completely different from the arrangement the defendant had with the Claimant for the period of July 2010 to June 2013 with brand new terms and conditions, including employment start off dates with completely new benefits accruable to only members of staff of the Defendant; that the claimant had a loose arrangement with the Defendant when she was a sales agent as she was free to sell the Defendant's product not below the stipulated price fixed by the Defendant and earn commission on sales made; that commission was paid only after reconciliation of sales made but not necessarily at the end of the month and commission was not fixed since it was computed on sales made; that the claimant was employed as a Direct Sales Officer (DSO) in 2011 whose responsibility was to work directly with consumers, selling the Defendant's products and finding each customer personally; that the claimant was self-employed and responsible for preparing/arranging market materials and samples for the purpose of demonstrating product features to customers; that under and by the terms of the enrollment form, and by the terms and conditions set out therein, the Claimant was not to be paid salary nor any benefit, particularly, terminal benefit scheme; that in 2011 when the Claimant was engaged as an independent contractor (Distributor Officer), she did not fill any employment form which is a prerequisite for every employee of the Defendant but filled only the enrollment form accompanied by her guarantors' acceptance/guarantor's forms. 

 

That it was only in 2013 when the Claimant was employed as a staff of the Defendant as evidenced in the offer of Employment letter dated 6^th July, 2013 but was effective 1^st July, 2013 that the Claimant in line with its company's guidelines was issued an employment form dated 16^th July, 2013 titled "Employee Personal Data" accompanied with other forms i.e. employee family details update, employee beneficiary details and employee beneficiary/next of kin details filled for the purpose of becoming a staff of the Defendant and that she was also issued an official identity card for the very first time as a staff of the Defendant; that the Defendant through a letter dated April 11, 2017 terminated the Claimant's employment and that in terminating the Claimant’s employment, it acted well within the terms and conditions of the offer of employment of the Claimant particularly the "Termination" clause provisions, which states thus: 

 

"TERMINATION: 

 

Either party may terminate this employment by giving the other party one (1) month notice in writing of his intent to do so, otherwise one (1) month pay in lieu of notice. Prior to the effective date of termination, the employee hereby agrees to provide to the employer a comprehensive and proper hand over report covering in full all aspects of business matters, including the day-to-day duties and responsibilities. The Company may terminate this employment without notice and payment pro rata in lieu of notice if termination is by reason of gross misconduct and or failure to comply with the policies and procedures of the company as stipulated in the Employee Handbook duly read and signed by you. 

 

That the Defendant computed the Claimant's emolument and entitlements in strict observance with her offer letter and the claimant accepted the payment without any complaint and was fully satisfied having received what she knew and had agreed was her full entitlement; that all payments made to other staff was exclusive and personal to those staff and in line with their respective employment letters and that the Defendant was not in breach of ILO Equal Remuneration Convention 1951, neither was it a breach of Discrimination (Employment and Occupation) Convention 1958 nor in breach of any extant local or/and international law or convention as the Defendant in all its dealings with the Claimant was fair, transparent and acted in accordance with the stipulations in the Claimant's letter of employment of 6^th July, 2013; that the sum of N118,000.00 (One Hundred and Eighteen Thousand Naira) paid to the Claimant was based on the terms of the contract of the employment and mutually computed and agreed to by both the Claimant and the Defendant; that the claimant is not entitled to the sum of N9,222,073.42 (Nine Million, Two Hundred and Twenty-Two Thousand, Seventy-Three Naira, Forty -Two Kobo) or any other sum save for the sum she was paid in the sum of N118,000.00 (One Hundred and Eighteen Thousand Naira) as full and final of all her entitlement and that going by the offer of employment of the Claimant dated 6^th July, 2013, the Claimant only became a staff effective from 1^st July, 2013 and became entitled to gratuity from that date and not before 1^st July, 2013; that the computation of years of the Claimant as a staff of the Defendant begins from the date she became a staff which is 1^st July, 2013 as contained in her offer of employment and not July 2011 when she was employed as a sales representative with no staff portfolio and that the allegation of the Claimant that she became a staff in 2011 and that she became entitled to gratuity from 2011 is unfounded and in total disregard of the terms and conditions contained in her enrolment form; that on the 9th of February, 2016, the Defendant notified all its staff (the Claimant inclusive) through a circular that the terminal benefit scheme ceased to be applicable and effective from 31^st January, 2016 and that the circular also made it clear that for those who had spent five years and above on or before 31^st January, 2016 would be paid gratuity but the Claimant had only spent approximately four (4) years i.e. 1^st July, 2013 to 11^th April, 2017, therefore was ineligible for gratuity. That the claimant is barred by laches from claiming the alleged or any relief against the Defendant and or it is inequitable and unjust to grant the Claimant the alleged relief or any relief whatsoever. 

 

Under cross examination by the claimant’s counsel, DW confirmed that cash incentive was a commission.

 

There was no re-examination by the defendant’s counsel. The defendant thereafter closed its case.

 

The parties were directed to file their final written addresses. The defendant’s final written address is dated and filed 25^th August, 2025 while the claimant’s final written address is dated and filed 29^th September, 2025. The defendant’s Reply on point of law is dated and filed 14^th October, 2025.

 

Learned counsel on behalf of the defendant framed a sole issue for the court’s determination viz:

 

                        Whether the claimant has proved her case and is entitled to the reliefs sought

 

 The above sole issue was sub headed into the following issues

 

 

 

 

It is the defendant’s counsel submission on issue one (1) that by the clear provisions of exhibit JO8, the agreement between Claimant and the Defendant as at 2011 was a contract for service and not a contract of service/employment and that the content of exhibit J08 cannot be varied or altered by the oral evidence of the claimant that her contract with the defendant provided for a probationary period; that by virtue of exhibit JO1, exhibit JO5, exhibit JO8 and Cw's admission under cross-examination, it is evident that the claimant was not an employee of the defendant as at 2011; that the claimant has not been able to prove her claim that she was an employee of the defendant prior to 2013 and that the defendant need not provide any further proof and the honourable court is bound by this admission. He cited the case of Christian v. Innocent & Ors (2023) LPELR-60589 (SC) and urged the honourable court to so hold.

 

On issue two (2); counsel submitted that the claimant was never paid a salary as a commissioned sales agent from 2011 mere because a salary account was opened; that she was entitled to incentives, which was neither a fixed amount nor was it paid at a regular date which is inconsistent with the concept of what a salary connotes as a fixed and periodic payment accruing to an employee under a contract of employment, payable at regular intervals (typically monthly) as a debt owed by the employer, which constitutes an enforceable legal entitlement distinct from discretionary payments and that this obligation arises from the employment relationship and cannot be unilaterally varied or withheld without contractual or statutory authorization; that a cursory look at exhibit J02 (salary account) tendered by the Claimant will reveal that the salary was neither a regular amount nor was it paid at any regular interval, either daily, weekly or monthly. However, in 2013, when she was offered employment, she was paid a fixed monthly salary with other employment benefits, and her salary structure breakdown was as follows: 

 

ALLOWANCES	PER ANNUM
Basic Pay	260,124.00
Housing	104,050.00
Transport	78,037.00
Hardship Allowance	39,019.00
Utility	66,000.00
Meal Subsidy	19,800.00
Leave	31,215.00
TOTAL CASH BENEFITS (A)	598,245.00

 

 

OTHER BENEFITS HMO
HMO	21,000.00
Employer Pension Contribution	39,799.00
Life Insurance	8,891.06
TOTAL OTHER BENEFITS (B)	69,49-.06
TOTAL PACKAGE (A + B)	677,735.06
NET PAY PER ANNUM	516,684,00
NET PAY PER MONTH	43,057.00

 

That from the above, it can be observed that after her employment in 2013, the Claimant's annual salary was N516,684.00 (Five Hundred and Sixteen Thousand, Six Hundred and Eight Four Naira), which is a monthly salary of N43,057.00 (Forty-Three Thousand, Fifty-Seven Naira) as opposed to the flexible amounts paid to the Claimant before her employment as a staff in 2013.

 

On issue three (3); counsel submitted that to be eligible for gratuity, the person must satisfy these two requirements: 

 

1.        That he is a permanent staff. 

2.        And has worked as a permanent staff for a period of at least five years as of 31^st January, 2016. 

That the above two cumulative conditions must exist for a person to be eligible to claim for terminal benefits and that by the Claimant's pleading, she was not a permanent staff as of 2010 but a casual staff. Secondly, by Exhibit J08 she became a contract staff for a fixed period for the whole of 2012. The logical implication, therefore, is that from 2010 - 2012, the Claimant was not a permanent staff, but first a temporary/casual staff and then subsequently in 2012, a contract staff for a fixed term period. Thus, she was not within the category of persons eligible for terminal benefits. She only became a full or permanent staff on the 1^st of July, 2013; that after the expiration of exhibit J08 in November 2012, and the Claimant continued to render services to the Defendant but continued to receive her commission for the sales, the contract is deemed to be tacitly relocated or novated and the Claimant will be deemed to remain a contract staff for this period which explains why on the 6^th of July 2013 she was offered employment effective 1^st July 2013 (Exhibit J05). 

 

On the receipt of full and final benefit by the claimant vis-à-vis estoppel by conduct; counsel submitted that 

the Claimant is therefore estopped by law from claiming that the Defendant still owes her any benefits having received the sum of N118,000.00 (One Hundred and Eighteen Thousand Naira) as her full and final benefits without any protests until the filing of this suit five (5) years after; that it is trite law that the Claimant is not allowed to approbate and reprobate regarding the payment of her full and final benefits by the Defendant. He cited the case of Kwara Poly & Ors v. Oyebanji (2007) LPELR-11829 (CA). 

 

On failure of the claimant to accompany claimant’s Reply with a statement on oath and abandonment of pleadings; counsel submitted that the Claimant in her pleadings (Paragraph 13 of the Reply to Statement of Defence) claimed that she did not sign any document receiving her terminal benefits as full and final benefits and tendered an unsigned copy of the termination letter and compilation of benefits. However, the Claimant during the trial did not lead any evidence in respect of that fact and also did not disprove that the Claimant did not sign the compilation as her full and final benefits; that it is trite law that any pleadings for which no evidence is led is deemed abandoned. He cited the case of Otuedon v. Ofor (2024) LPELR-62650 (SC).

 

Continuing, counsel submitted that the claimant’s reply to the Defendant's statement of defence dated 10^th day of July, 2023 was not accompanied by a Witness Statement on Oath as required by Order 40 Rule 1 (1) of the Rules of this honourable Court; that the net effect is that the reply to the Statement of Defence and all the facts pleaded therein lack any probative value as no evidence was laid in support of the pleaded facts. He cited the case of Egesimba v. Onuzuruike (2002) 15 NWLR (pt. 91) 466 and urged the honourable court to so hold. 

 

Learned counsel on behalf of the claimant formulated four (4) issues for the court’s determination viz:

 

 

 

 

 

It is the claimant’s counsel submission on issue one (1) that the rules in Exhibit J08 though was thrusted on the claimant after seventeen (17) months of her undocumented employment as employee in 2010, but clause 12 of the purported rule discredits, contradicts and controverts the defendant’s witness statement on oath where she states that the defendant did not give any employment to the claimant prior to 2013, and that the very first employment given to the claimant was in 2013; that the statement that the claimant was given employment for the very first time in July 2013 and also that "she was never given any employment prior to 2013 means that no employment in any capacity what-so-ever at all was given between 2010 to June 2013. That it is a well-known principle of law that one cannot put something on nothing and expects it to stand and that parties are bound by their pleadings as evidence that is contrary to or at variance with pleadings goes to no issue. He cited the case of Weluchem v. Goody (1981) 5 SC 291 and urged the honourable court to resolve issue one (1) against the defendant and in favour of the Claimant. 

 

On issue two (2); counsel submitted that in one breath, the defendant says no employment of the claimant prior to 2013, and in another paragraph, it stated that the claimant was before 2013, employed as independent contractor, leaving the honourable court to conjecture on which statement to choose between the two contradictory statements and which one to believe and which one not to believe; that exhibit J08, though was an after-thought, It was thrusted/foisted after seventeen (17) months of undocumented employment of the Claimant by the defendant. However, the attached purported rules dated 12/11/2011 which forms part of the purported Exhibit J08 by its paragraph 6, further shows that the defendant had from inception been in total control of the Claimant's employment without the Claimant having any discretion to exercise at all, which is the evidence of Contract of Service as opposed to Contract for Service which is independent contractor or self-employed. 

 

On issue three (3) counsel submitted that the Claimant's exploitation by the Defendant since July 2010 to June 2013 before the confirmation of her employment as a staff constitute unfair labor practice; that the claimant was unfairly treated and exploited for three years (3) and Six (6) months before the confirmation of her employment as a Staff and that the Claimant's employment was supposed to have been confirmed after six months of general probational period; that the right to work under equitable and satisfactory conditions can be interpreted to imply protection against casualization and unfair work conditions; that the defendant has breached the provisions of Section 7 and 21 (1c) of Labour Act. He urged the Honourable Court to resolve issue 3, against the defendant and in favour of the Claimant and to hold that the conduct of the defendant amounts to unfair labour practice, unlawful and illegal. 

 

On issue four (4); counsel submitted that the claimant is entitled to gratuity; that the defendant's discretion ought not to be exercised arbitrarily, but judiciously and fairly to the claimant in payment of her gratuity, including the fact that since the defendant refused to separate or differentiate the event, conduct and incidence of 2010/2011 by the continuous use of Salary Account exhibit J02, which was a creation and a baby of 2010/2011 incidence of employment; that it is reprehensible and unconscionable for the defendant to now turn-around to treat them separately just to circumvent its obligation to pay claimant's gratuity, which is contrary to Natural Justice, Good Conscience and Equity and Unfair labor Practice. That the unaware and unknown letter of Removal of Terminal Benefit is a breach of agreement in Exhibit J05, in which the defendant contracted to pay Non-Contributory Extra Gratia Terminal Benefit to the Claimant in the Scheme. More so, since the Defendant paid other staff, their gratuities, then it is unfair labor practice for the defendant to deny the Claimant her gratuity having served the defendant conscientiously and faithfully. 

 

On reply on point of law; the defendant’s counsel submitted that it is trite law that where there is no express renewal of a fixed term contract and the parties by their conduct continue to perform obligations and receive benefits under the terms of the contract, there is a deemed renewal of the terms of the contract for the same duration by law; that the Claimant cannot claim that that she was not aware of the removal of ex-gratia by virtue of Exhibit JOI0 as there is a presumption that being an employee of the company as at 9^th February 2016, a circular addressed to "all staff' has been brought to her notice. 

 

I have considered the statement of claim, statement of defence, reply to the statement of defence and addresses of counsel to both parties. It is my view that the issue for determination is whether on the entire evidence led in this case, the claimant is entitled to the reliefs sought.   Before I go into the main issue it is pertinent to look at the preliminary objection raised by the defendant that the claimant’s reply to the statement of defence is not accompanied with a witness statement of oath as required by the Rules of this court. The defendant therefore submits that by the adoption of the statement of oath without saying more, the claimant failed to lead any evidence in support of her reply to statement of defence. The claimant did not respond to this in her final address. On whether a reply to a statement of defence can be accompanied with a witness deposition, the court in J.I Efemini & Sons Limited v United bank for Africa Plc held thus 

 

The respondent after setting out the claim, the relevant paragraphs of the Appellants pleading before the court and the averment by the respondent in her statement of defence. He argued that the Appellant failed to file any statements oath and hence no evidence before the court to establish the averment in the reply to the statement of defence by the appellant. He submitted that the failure amounted to an abandonment of the reply to the respondent’s statement of defence. Let me pause here to deal with this submission. I do not agree with this argument by the learned counsel to the respondent. The argument is untenable and has no place in the rule of pleadings. There is no rule of procedure prescribing the condition that a plaintiff should file a separate witness statement on oath to establish his averments in his reply to the statement of defence. The evidence given to prove the statement of claim can by extension take care of the averment contained in the reply to the statement of defence.  

 

I agree with the claimant’s position that a reply and a statement on oath is necessary where the claimant intends to substantiate facts in reaction to new issues if any raised by the defendant.  I therefore hold that the objection is hereby discountenanced and dismissed. 

  

As required by law the claimant has placed before the court I.D card (exhibit JO1), Statement of Account (exhibit JO2), Termination of employment (exhibit JO3), Demand letter (exhibit JO4), Offer of employment (exhibit JO5), Termination of employment with terminal benefit (exhibit JO6), Re: demand for contributory ex-gratia payment (exhibit JO7), Enrolment form (exhibit JO 8), Employment form exhibit JO9). Memo to all staff (exhibit JO 10).

 

Now to the merit of the case, the pleadings filed by the claimant and the simple fact of the case is that the claimant was first employed as a casual staff in 2010 by the defendant, then for a fixed period in 2011 before she was issued a letter of employment in 2013. The employment was terminated in 2017 and she was not paid her gratuity being the sum of N9, 222, 073.42. In addition, that she is also entitled to general damages/ compensation.  The defendant’s position is that the claimant is not owed any money as the entitlements have been paid to the claimant after termination. That on the issue of gratuity and benefits, the claimant did not fall between the staff to be paid gratuity, again denies that she was their staff at that material time as she was only a sales commission representative and an independent contractor. 

 

First is the issue of contemporary labor on casualization and the fact that the claimant was not given letter of employment on resumption of duty which are implicit is the question of unfair labour practice.  The claimant’s counsel in his final address on whether the claimant was not given any employment prior to 1^st July 2013 submit that having used the word ‘’following’’ means the claimant was already an employee before she was given a letter of employment in 2013. That when exhibit JO8 was issued to the claimant in 2013 she was already a staff before then but that the employment was not documented as she was not given a letter of employment which did not preclude the claimant from being the defendant’s employee.  The learned counsel to the claimant urged the court to hold that there was an employment relationship before 2013. To the defendant, the words ‘’ following’’ used in exhibit JO5 is misconstrued and misconceived interpretation as it was only used having transited from being a temporary or contract staff for a fixed term to a permanent staff hence the defendant highlighted the meaning of the wordings in the said exhibit JO5.

 

On  the issue of casualization, the claimant who is a sales representative since 2010 in the defendant’s company fall within the meaning of ''worker'' as defined by section 91 of the labour Act cap LFN 2004   which means ''any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour''.  See Onumalobi v N.N.P.C (1999) 12 NWLR (Pt. 632) 628. The defendant did not dispute that the claimant is a worker but maintains that she was only a sales commission representative and an independent contractor and not an employee and as such was not given employment letter. This practice is now referred to as casualization. It is pertinent to state that globally a casual worker is one who is engaged seasonally or intermittently and not for a continuous period.  The claimant relied on this and in paragraph 4 of the written deposition of the claimant, that the letter of employment was supposed to have been written and given to her within three months of her employment between July 2010 when she was employed and September 2010 in compliance with the Labour Act and other laws. Section 7 (1) (a) to (h) of the labour Act CAPL1 LFN 2004 provides 

 

7(1) Not later than three (3) months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying –

 

1. The name of the employer or group of employers, and where appropriate, of the undertaking by which the worker is employed 
2. The name and address of the worker and the place and date of his engagement 
3. The nature of the employment
4. The contract is for a fixed term, the date when the contract expires 
5. The appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to Section 11 of this Act.
6. The rates of wages and method of calculation thereof and the manner and periodicity of payment of wages 

            g. Any terms and conditions relating to

i.          the hours of work 

ii.         holidays and holiday pay or 

iii.       incapacity for work due to sickness or injury, including any provisions for sick pay and

h. Any special conditions of the contract

 

The above provisions apply to the claimant who is a worker as defined by Section 91 of the Labour Act. Her right to written particulars of the terms of her employment as provided by the law is mandatory.  The defendant has breached the provisions of the law as the claimant has been in the employment of the defendant from 2010. The claimant should be accorded all the workplace rights as envisaged by the labor laws and I so hold. Unfortunately, as there is no relief on this by the claimant, it is the law that the court cannot grant a relief not sought by the parties. See Osita v Oni (2022) LPELR -59587 (CA).

 

The defendant’s contention is that the claimant became a staff in 2013 when she was offered employment and was issued exhibit JO5 and it starts with 

 

‘’Following your outstanding performance as sales officer managing the DO team in Alabasuru market, and since you have been constantly been over exceeding your monthly sales targets, we are pleased to confirm your employment as a staff with Jagal Pharma. This will take effect from 1^st July 2013. 

 

This to me shows that the claimant’s employment was confirmed and the employment commenced in 2010 through 2011 to 2013 when she was eventually issued a letter.  DW stated that the claimant did not work for the company for an unbroken period of 3 years from 2010 – 2013 and describes the claimant as an independent contractor during the period before her employment in 2013. It becomes necessary to examine which kind of contract the parties entered as there are factors that guide the court. In Sheena Security Co Ltd v Afropak (Nig) Ltd (2008) 18 NWLR (Pt 1118) 77 on where there is dispute as to which kind of contract the parties entered, the following factors usually guide the court namely:

 

If there is payment of wages or salaries, it is indicative of contract of service, but if payment is by fees, it is contract for service.

 

Where the employer supplies tools, it is contract of service, also where hours of work are fixed and an office accommodation is provided it is contract of service. 

 

The claimant was paid commission / salary as per her pleading and with the exhibit of salary account, her relationship with the defendant is contract of employment as she was directed on what to do, she was paid salary, had hours of work and had to report to the supervisor after each day.  In exhibit JO8 is an enrolment form and it states

 

I will only report and take orders from the manager to whom I am assigned by the company 

 

The enrolment form was given to the claimant to fill and return and had the condition at the back of the form. From NO 1- 13 is the condition of service which includes taking orders from her manager, to be polite to customers, will not sell on credit, punctual, daily attendance, reconcile on daily basis respect the routes assigned to me and that a breach of the condition will lead to termination of her employment. Both parties signed that it was to last for 12 months. The defendant paid salaries to the claimant which is exhibited as bank account from Access Bank (exhibit JO2). As I noted earlier the defendant had stated that the claimant did not become their staff until 2013 without reference to the statement of account which is Salary for January 2011 paid on 7^th January, then on 15^th of March. This is evidence of payment of salary during the period the claimant had fixed contract of employment. Exhibit JO8 is enrolment form issued in 2011. A close look at all the conditions particularly paragraphs 1 and 12.

 

I hereby agree that any breach of the above conditions will lead to the immediate termination of my employment with pharma Ltd without any payments and the company also retains its right to take legal action against me if needed.

 

This confirms that the contract is contract of employment as she reports and take orders assigned by the company and there is specific period for work which is 8am-5pm Monday to Saturday. The defendant of course disputed the foregoing by the claimant. To the defendant, the contention that she was at all times a permanent staff eligible to be paid terminal benefits and that her employment as a staff commenced in 2010 is not supported by evidence.  My understanding of this is that the claimant became a staff since 2010 and a letter issued in 2013 until termination in 2017.  The claimant’s employment was terminated on April 11 2017 and paid one month salary in lieu of notice. I find and hold that the claimant worked for the defendant from 2010 – 2017 when her employment was terminated.                   

   

Relief 1 is for a declaration that the claimant is entitled to gratuity. In paragraphs 5, 8, 9 and 11 of the statement of facts, the claimant averred thus:

 

8. The Claimant states that she was only paid One Hundred and Eighteen Thousand Naira only (N118,000.00) as terminal benefit in the following manner: 

 

One Month Salary                        N43,000.00. 

 

One Month in Lieu of Notice                 N43,000.00 

            

Leave Allowance N32,000.00 

 

      N118,000.00

 

9. The Claimant states that the defendant company has failed, refused and neglected to pay her gratuity of hard work of unbroken services and employment for seven good years from July 2010 to April 11, 2017 with the Defendant company. The salary account opened for her by the defendant company in 2011 shall be relied upon at the trial. 

 

11. The Claimant states that the computation of her gratuity as they were being thought by their supervisors and management of Jagal Pharma Limited when it had not changed its name to hello Product Limited and same computation was applied to her colleagues who were paid their gratuity is hereunder reproduced: 

 

TOTAL PACKAGE (A Plus + B)       N677,735.06 

 

NET PAY PER MONTH. MULTIPLY 

BY NUMBER OF YEARS OF SERVICE + 

EXTRA NET PAY PER ANNUM + EXTRA 

NET PAY PER MONTH 

 

Total Package (A Plus + B)                          N677,735.06 

 

Net Pay Per Annum                                         N516,684.00 

 

Net Pay Per Month                                                        N43,057.00 

 

Multiply by (7) Seven years of 

Service + (PLUS) Extra Net Pay Per 

Annum + (PLUS) Extra Net Pay Per Month 

 

The total grand of my gratuity is Nine 

Million Two Hundred and Twenty-Two 

Thousand and Seventy-Three Naira Forty      

Two Kobo                                                              N9,222,073.42

 

In response to the above paragraphs, the defendant in paragraph 22 of the statement of defence admits paragraph 8 and avers that the sum of N118,000 paid to the claimant was based on the terms of the contract of employment and mutually computed and agreed to by both parties. Under cross examination, CW in an answer to the question:

As a casual staff in 2010, you are not entitled to gratuity

Answer:  I do not know 

Question: In that letter exhibit JO6, you collected your benefit and signed for same as your full and final benefit 2016

Answer: That was benefit and not Gratuity.

 

The claimant’s employment was terminated by exhibit JO3 and part of it reads 

 

Dear Ms. Oziri 

 

Please be informed that your services are no longer required by the company and your contract of employment is hereby terminated with effect from April 30, 2017. 

 

No reason was given for the termination See Idoniboye – Obu v N.N.P.C (2003) LPELR – 1426) (SC) which held thus

 

Under the common law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all. So long as it acts within the terms of the employment, its motive for doing so is irrelevant. 

 

It can therefore be safely concluded from this that the defendant has paid the sum of N118,000 to the claimant which has been confirmed by the claimant in her pleadings. Learned counsel to the claimant in his final address captured the whole essence of casualization, contract of service as distinguished from contract for service and particularly in paragraph 7.04 of the final address and submit that exhibit 5 did not give any specific number of years to make an employee eligible for gratuity.  How then is the court to grant relief on gratuity when the provision in the letter of employment states ex- gratia terminal benefit scheme with no number of years. The Apex court in Vital Investment Ltd v Chemical and Allied Products Plc (2021) LPELR – 58457 (SC) on whether the court can rewrite/ change the contract freely entered into by parties held thus 

 

The court cannot rewrite, import into or export out of a contract any term or conditions which the parties did not in their agreement state to be part of what they intended. See O. H. M. B v Apugo & Sons Ltd (1990) 1 NWLR (pt 192).  652  

 

The claimant or I dare say his counsel did not apply the maxim of he who asserts must prove and in civil cases, the onus of proving a particular fact is fixed by the pleadings. it does not remain static but shifts from side to side. See Gbafe v Gbafe (1996) 6 NWLR (pt 455) page 417 at 432. As the burden of proof merely requires the party alleging a fact to prove the fact, Now the rule is that it is the claimant who claims that must prove and in labour relation, an employee can only claim if he/she shows an entitlement. The general principle of law is that a party that asserts and alleges that must prove his assertion or allegation and by law, the burden is always on the claimant, who files a suit to lead credible evidence to establish his claim and in doing so must rely on the strength of his own case, not on the weakness of the case of the defendant (if any).   See the case of Hayder Trading Manufacturing Ltd & Anor v Tropical Commercial Bank (2013) LPELR-20294 (CA), Okoye & Ors v Nwamankwu (2014) LPELR 23172 (SC).  See Jaji & Ors v Olowora & Anor (2015) LPELR -25575 (CA) the Court of Appeal held 

 

It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. But where a party fails to discharge this burden, then the opponent needs not prove any fact and the party alleging cannot rely on the opponent’s case.

The claimant was emphatic in paragraph 11 of the statement of facts that she was taught how to calculate by her supervisor and management of Jagal Pharma Limited and same computation was applied to her colleagues. Again, in paragraph 7.0 of the final written address, the claimant relied on this ‘’ the company has its sole discretion operates a non-contributory Ex- gratia Terminal benefit scheme, dependent on years of service and argued that the defendant has not shown nor proven by evidence to the court, where it was written in the offer of employment contract and company hand book policy and submit that the statement is vague. The claimant as an employee has the task to put before the court the terms and conditions of the contract of employment upon which the claimant wants the court to find for her. Failure to establish this evidential requirement is fatal to her case.  Exhibit JO5 is the offer of employment and it contains the condition of service under Terminal benefit scheme, a non-contributory ex gratia scheme. In Busari Giwa & Ors v Wema Bank Nig Plc (2021) LPELR -54851 (CA) the Court of Appeal explained the meaning of ex-gratia as follows 

 

The appellants pleaded in paragraph 11 A. They relied on copies of letters of earlier staff whose employment were determined to prove this customary ex- gratia customary payment. In P.A.N Ltd v Saliu Oje (supra) at page 17, this court per Mohammed JCA (now CJN) defined ex gratia payment thus what is ex gratia? the term is Latin, it connotes something given out of grace, favor, indulgence or gratuitous. Henry black, is a term ‘’ applied to anything accorded as a favor, as distinguished from that which may be demanded ex – debito, a matter of right ‘’ so it follows that ex gratia payment being claimed by the respondents is a payment by one who recognizes no legal obligation to pay. 

 

There is no such provision for Gratuity in exhibit JO5 governing the employment of the claimant. I am inclined to reach the conclusion that the testimony is inaccurate.  An entitlement is shown by reference to the laws that gives it, the agreement from what the entitlement was agreed between the contracting parties or the condition of service governing the relationship of the employer and his/her employee. The claimant did not tender the document that confers such on her or tell the court how she arrived at such a figure other that being taught how to calculate such entitlement by her superiors in office. Parties are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives right to contractual relationship. It is my view that without document to show that she is entitled to his claims, this court cannot rely on the claimant’s averment to declare that she is entitled to Gratuity / emolument. Knowing how to calculate does not entitle you to a relief.  In the instant case, the claimant did no such thing. On this score, it is difficult to determine the veracity of the claims of the claimant. Relief 1 fails and is dismissed.  

 

Relief 2 is for an order for the payment of N9, 222, 073. 42 (Nine Million Two Hundred and Twenty-two Thousand and Seventy-Three Naira, Forty-Two Kobo) as gratuity from 2010 when the defendant company employed the claimant as a sales officer to 2017 when her employment was terminated. As already captured in the judgment the claimant relied on paragraph 5. The defendant’s response to this is that the claimant is not entitled to ex gratia Terminal benefits as of right but at the sole discretion of the defendant. It is manifestly clear that the claimant is unable to prove that she is entitled to the sum of N9,222, 073.42. The claimant in making out her claim computed her entitlements. This court is not told how the sums as per calculations were earned and the documents supporting them. She has failed to show documented evidence or justification for the figures. The claimant has not averted her mind to the well laid down principle of the law that the claimant succeeds on the strength of her case and not on the weakness of the case of the defendant is very much in focus in that where the claimant fails to prove her case, she fails.  What the court is concerned with is not whether the defendant is denying her the entitlement but it is for her to show that she is entitled to same under the conditions of service. On this, the claimant’s position is that the implication of the statement ‘’ depending on the years of service’’ is nebulous, vague and ambiguous, thereby shifting the onus of proof to the defendant. The court in Afolayan v Ariyo & ANOR (2014) LPELR -22775(CA) held 

 

It is the appellant who has asserted the affirmative of this fact that bears the burden of proving that assertion and not the respondents who assert the negative. See Oyovbaire v Omamurhomu (1999) 10 NWLR (pt 621) 23.

 

On the whole, the claimant’s case fails and is dismissed.  

 

Judgement is entered accordingly.

 

 

 

HON. JUSTICE A.N. UBAKA

JUDGE