IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN IN CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

13TH DAY OF AUGUST, 2026                                      SUIT NO: NICN/CA/11/2023

BETWEEN

Idris Giwa Adewale ………………………………………………………………………….…….. claimant AND

1.       Clinton brown

2.     Nature Renaissance International Ltd                                       defendants

JUDGMENT.

The Claimant took out a general form of complaint dated 1/3/2023 and filed on the same date, accompanied by statement of facts, witness statement on oath, list of witnesses, list of documents to be tendered in evidence at the trial. The originating processes commencing this suit was amended with leave of this Honourable court on the 29th day of November, 2023. Vide the amended statement of facts the claimant claims against the defendants for the following reliefs:-

a.     An order of court declaring the purported removal of the claimant’s name from the board of directors and employment of the 2nd defendant, illegal, unconstitutional, un-procedural, null and void.

b.     An order of this honourable Court declaring that the claimant is still an employee of the 2nd defendant hence entitled to be paid all the accrued 1% global profit made by the 2nd defendant from the month of June 2022 till the date this judgment is delivered in this suit.

c.      An order directing the 1st defendant to pay to the claimant the sum of one million, two hundred thousand naira being his accumulated monthly remuneration from July 2022 to February, 2023 when this matter was instituted in the Court.

d.     The sum of one hundred and fifty thousand naira monthly from March 2023 till the final judgment is given.

e.     Cost of litigation in the sum of one million naira only

f.       General damages in the sum of twenty million naira only for the mental torture and financial hardship caused the claimant by the action of the defendants.

g.     Post judgment interest of 10% on the amount awarded where the defendants failed to pay the money within the time named in the judgment.

The claimant testified in proof of his case as CW1. After identifying his witness statement on oath, he adopted it as his evidence in this case. Documents were tendered through CW1 and they were admitted in evidence and marked as exhibits C1 - C9.

The 1st defendant testified in defence of the defendants, and tendered two documents in evidence marked as DW1. DW1 adopted his witness statement on oath as his evidence. He tendered two documents which were admitted in evidence and marked as exhibit D1 and exhibit D. Exhibit D1 is the letter dated 10-12-2020 for revocation of appointment of the claimant. While exhibit D2 is the resolution dated 18- 8-2020 where the board of directors passed resolution to withdraw exhibit C1.

THE CASE OF THE CLAIMANT

Vide the letter dated 7/7/2020, admitted in evidence as exhibit C1, signed by the 1st defendant, the claimant was offered an appointment to serve as a director in the board of the 2nd defendant. The appointment was to take off with immediate effect from the date of the receipt of the letter and it was stated to run indefinitely (subject to the decision of the company).

The letter outlined the duties of the claimant to be: advising the company (2nd defendant) as a board member, projecting the image of the company and representing her whenever the need arises, ensuring the interest of the company is protected at all time, attending all board meetings, availability to carry out other miscellaneous duties that may arise from time to time on behalf of the company. The position was said not to be salaried but members of the Board of Directors are to receive out of pocket expenses in course of their duty, also members of the Board of Directors are to share from 1% Global profit (turn over) of the company. According to the claimant the 1st defendant paid to him the sum of N 100, 000.00 on the 04- 10- 2020, through the 2nd defendant. The 1st defendant also called the claimant via phone call and informed him about the money which he called, 1% global profit as per the content of the agreement.

The 1st defendant had several conversations on phone and whatsapp messages with the claimant where he demanded information from what to use to treat some health issues like treat hypertension, stroke, low libido, diabetes, malaria etc. see exhibit C2.

The claimant, worked for the 2nd defendant through the 1st defendant on several occasions between 2020 and 2022. He travelled to the 1st defendant’s office at Benin to show him what to do, the natural herbs to use in the treatment of some health problems. On the 21st day of June, 2022, the claimant’s account was credited with the sum of N600, 000. 00 by the 2nd defendant.

After the 1st defendant had gotten all the required information, he needed from the claimant to enable him do his business, he dumped him and he will not respond to any of his calls. All the promises contained in the offer of appointment letter were ignored. Letters written by the claimant’s counsel to the 1st defendant were ignored. The claimant therefore filed this suit against the defendants for breached of contract of employment.

THE CASE OF THE DEFENDANT:

The defendant in their defence stated that the 1st defendant was never given any herbal product by the claimant by name ‘’super attack’’ or any other herbal concoction for that matter. The 1st defendant stated that he was a friend to the claimant for a while when he was resident in Calabar and they did some business together that was beneficial. And the 1st defendant after a while moved to Benin to continue his business in Edo State and didn’t see the claimant till 2020. The defendants admitted that the 2nd defendant is a registered company with corporate affairs commission and has directors and shareholders and the claimant has never been one of such directors neither has he ever been employed or contributed anything to the company. The 1st defendant stated that he learned traditional medicine from childhood and the claimant did not introduce him to traditional medicine and 2nd defendant has absolutely no connection with the claimant and the claimant was never promised to be made a director in the company. The 1st defendant erroneously wanted to bring claimant as a director in the company to help him as he was always begging him for money as an old friend, but the proposition did not see the light of the day since the board of directors/shareholders of the 2nd defendant who had the final say refused the proposal and made a resolution to the effect that no new director was needed at the time, vide the board resolution dated 18/8/2020. The defendants insisted that claimant was never ever an employee of the 2nd defendant and he has no letter of employment whatsoever. The claimant has never been a board member of the 2nd defendant. The stipends the 1st defendant usually sent to the claimant were to support him since he said his business has collapsed and he was not doing well and the 1st defendant out of pity send monthly allowance to claimant just like he did with many other less privilege people in the country out of benevolence. The 1st defendant stopped sending stipends to claimant and rent when he started insulting the 1st defendant and started acting too entitled. The claimant was a researcher for the 1st defendant as he has partnership with various universities in Nigeria where they carryout research and development. The claimant never shared from any global turn over as all the money given to him was gifts from the 1st defendant. Letter of termination was given to the claimant shortly after the board held a meeting and reached a resolution not to bring in any new directors until the company has been fully stable. The claimant is not entitled to any right or money whatsoever as he is not a director in the company neither is he an employee of the company. The 1st defendant was never served with any letter from the claimant. The claimant has not suffered any hardship, loss or damage occasioned by any act or omission of the defendants at all, as he was never a director of the 2nd defendant. And he has also never been employed to work for her and he is not entitled to any money in whatsoever form and whatsoever. The defendants shall contend that the statement of claim of the claimant did not disclose any reasonable cause of action against the defendants. The defendants urged the court to dismiss this action for with substantial cost as same is speculative, vexatious, frivolous and only intended to embarrass the defendants.

THE SUBMISSION IOF THE DEFENDANTS:

V. N. Nwankwo, Esq; counsel for the defendants in oral adumbration, adopted the defendants final written address as his argument in this case. In the final written address twin issues were submitted for determination. They are:-

1.       Whether the Claimant has a prima-facie cause of Action, and has sufficiently proved his case that he is an employee or Director in the defendant’s company.

2.     Whether the Claimant is entitled to any profit or Damages from the defendants.

ARGUMENT:

Issue 1: Whether the Claimant has a prima-facie cause of Action, and has sufficiently proved his case that he is an employee or Director in the defendant’s company.

In arguing this issue counsel submitted the Claimant has not proved his case before this Honourable Court, and in fact he has not established any reasonable cause of action before the National Industrial Court, as relating to Employee-Employer relations and or Labour relations, and the claimant has also by his writ(sic), robbed or stripped the court of jurisdiction by his Claims, as the subject matter of his Claims in the Case instituted before this Honourable Court is not one which the Court has the jurisdiction to hear. To support his contention counsel refers to the provisions of section 7(1)(a)-(v) of the National industrial Court Act 2006; The Question of what is the Jurisdiction of the National industrial  was answered, and the Special Jurisdiction of the Court is limited to; subject matter enumerated in section 7(1)(a)-(v) of the National Industrial Court Act, 2006.

According to counsel the Claimant has failed to prove that his cause of action flows from any of the following grounds enumerated by the National Industrial Court Act 2006. Counsel posited that the Claimant has failed to prove that he was an Employee of the Company or was into a trade dispute with the Company, or was unfairly dismissed as an employee of the company which will ordinarily bring the matter to the purview of the jurisdiction of the Honourable Court, and will suo motu ignite the jurisdiction of this Honourable Court.

Counsel contended that this is fatal to the claimant’s case, as the fulcrum of the Claimant’s case was built on the false and misleading narrative that the letter dated 20th July 2020(sic) which was admitted in this Honourable Court as Exhibit C1, was a letter of employment.

Counsel continued his submission that a cursory look at the Exhibit Cl, will show that it was boldly branded and headed as “LETTER OF APPOINTMENT TO SERVE AS DIRECTOR IN NATURE’S RENAISSANCE INTERANTIONAL NIGEIA LIMITED “,, the letter heading and content of the letter points to the fact that the claimant was to be appointed a director in the defendants company, pending ratification by the board of directors, it also showed that the letter was never intended to be a letter of employment and nowhere in the body of the letter was the word “Employment” mentioned, more so the letter was never intended to create an employment relationship from the wordings of the letter, counsel urged the court to refer to the exhibit C1.

Counsel argued that if the Legal argument above holds water, it automatically strips the court of jurisdiction to try the matter at hand, and puts the case out of the jurisdiction of this Honourable Court. Counsel urged the court to treat it as such. Also the claimant during trial admitted under the fire of cross examination that the letter dated 20th July, 2020(sic), known as “Exhibit C1”  before this court was a letter of appointment as director and not a letter of employment, when he read to the hearing of the court the heading of the said letter correctly as ‘’LETTER OF APPOINTMENT TO SERVE AS DIRECTOR IN NATURE’S RENAISSANCE INTERANTIONAL NIGERIA LIMITED”,  but afterwards still claimed it was a letter of employment in a bid to confused and mislead the court.

The claimant also played a long audio recording which he claimed was discussions between him and the 1st defendant and nowhere in those discussion did the first defendant referred to him as an employee, or told him he was employed, and he also didn’t tender any employment letter, or salary slip to show he was an employee of the company at any time.

Counsel submitted that in UAC V Mac foy (1961) 3 WLR 1405, The Court held that; ”You cannot put something on nothing and expect it to stand”, Counsel submitted that the claimant’s case is built on lies and fabrication with an intention to mislead the Court, as he claimed under cross examination that “he was a director and also an employee in same company” with no evidence to back it up, thereby approbating and reprobating. More so the Claimant adduced several documents before this Honourable Court to proof to the court that he is well read in the act of compounding Natural medicine, and so he can read, right and understand English, thus the wordings of the letter admitted as exhibit C1 are well understood to the claimant and his legal team.

Counsel submitted that it is trite law that for an “employee” to claim wrongful termination of employment, as in the instance case, “He who asserts must prove. Where an employee complains that his employment has been wrongfully terminated, he has the onus first to place before the court the terms and conditions of service and then show the manner the said terms were breached by the employer. It is not for the employer to prove any of these, in other words, the onus is on the claimant to plead and prove the conditions of service regulating the contract of service in question’: Thus the Onus is heavily on the claimant alleging a contract of service to prove same… “AJAYI v Adebiyi (2021) 11 NWLR P137 (SC). In the Instant Case, the Claimant didn’t present any other document throughout the entire trial process to the effect that he was an employee of the defendant’s company or that the Defendants exercises some level of control over him or that there was a contract of service, placing him under their employment of the second defendant, except the letter offering him the position of a director in the company, which was letter withdrawn by the board of directors. Counsel contended that the document branded “Exhibit C1” is not a letter of employment, and if this is true, this is fatal to the claimant’s case, and also strips the court of jurisdiction to adjudicate on the issue of unfair dismissal. Since the claimant is not an employee of the Company in the first place. Counsel refers to the case of AJAYI v Adebiyi (2021) 11 NWLR (Pt.13I (SC); where the Court upheld the long standing rule of Law that “Absence of jurisdiction is irreparable in Law and the only Procedural duty of the court is to strike the case off:” We contend that the claimant by his own statement of claim, has robbed this Honourable court of jurisdiction. Counsel also refers to the locus classicus of Madukolu & Others Vs Nkemdilim (1962) 1  ALL NLR 586 @ -595, Where the court took time to explain how a Court is clothed with jurisdiction and what can strip the court of same.

Counsel contended that the Claimant has no letter of employment or contract of employment with the Defendants and never was an employee of the company, and because of this the claimant’s case is bound to fail as there is no employee/employer relationship and no contractual relationship between the parties, and this automatically means the claimant’s case must fail, as it tacitly strips the court of Jurisdiction on the Subject Matter brought before it.

It is submission of counsel that the Claimant has not proved his case, as it has not established any reasonable cause of action against the Defendants before the National Industrial Court, more so, assuming without conceding that the present case was truly relating to Employer-Employee relations and or Labour relations. It has been established as Law that a wrongfully dismissed employee must prove same to succeed in a case of wrongful termination. In support of this contention counsel refers the court to the Case of NITEL PLC V OCHOLI (2001) 10 NWLR (Pt720) 188, where the court stated;

“When an employee complains that his employment has been wrongfully terminated, he has an onus to; (a) Place before the court the terms and conditions of employment (b) Prove in what manner the said terms were breached by the employer, the terms of contract of service is the bedrock of any case, where the issue of wrongful termination of employment calls for determination “.

Counsel insisted that the Claimant has not placed any contract of employment before this Honourable court, neither has he placed any Legal Contract of employment before the Court nor did he present to the court any terms of employment rightly signed by him and any of the defendants. The claimant however succeeded in taking the honourable court through a wild goose chase on the issue of removal of director which again isn’t an issue to be determined by the National Industrial Court but by the Federal High Court, but assuming without conceding that it were to be determined by the National Industrial Court. The 2nd defendant Company in her defence also adduced documents to prove to the court that the Offer of Directorship on the Claimant, which was what the letter of 20th July, 2020(sic), was for in all force, was revoked and rightly so by a resolution of the board of directors, and notice was given to the Claimant.  Counsel draws the attention of the court to exhibit D1 and D2, also the Law has long been established on who is a director in section 269(1) of the Companies and Allied Matters Act 2020, and in the case of BAFFA V ODILJ (2001) 15 NWLR (Pt, 737) 709, the court has put the matter to rest that;

“A Director of a Company are persons duly appointed by the company to direct and manage the business of the Company” the company being the board of director and not the chief executive officer.

Counsel submitted that, it is the Law that only a company can appoint and or remove a person as director of a company, in the letter presented to the court by the Claimant which reads “LETTER OF APPOINTMENT TO SERVE AS DIRECTOR IN NATURE’S RENESSANCE INTERANTIONAL NIGERIA LIMITED”. marked as Exhibit C1, paragraph 3 reads ;

“Your appointment takes off with immediate effect on the date of receipt of this letter and will run indefinitely, subject to the decision of the company”.  It is submitted that after the offer was made to the claimant by the 1st defendant, the Company, who had the power to appoint or remove a director, sitting at its board of directors meeting, met and decided that it was too early to appoint new directors, and revoked the offer of appointment in line with the COMPANIES AND ALLIED MATTERS ACT SECTION 273(1) and 258. Counsel draws the attention of the court to the letter of revocation and the resolution of the board, dated 10th December 2020 and admitted in court and labelled exhibit D1 and D2 to the effect that the Claimant was never rectified as a director in the Company nor was his details sighted in the Corporate Affairs Commission directory, thus the Claimant Legally speaking, was neither an employee of the Company nor was he ever a Director of the Company.

Counsel urged the court to resolve issue 1, in favour of the defendants and Dismiss the Claimant’s suite with substantial Cost.

Issue 2: Whether the Claimant is entitled to any profit or Damages from the defendants.

Counsel answer issue 2, in the Negative, and submit that the Claimant is not entitled to any Remuneration, Profits or Damages or cost of Litigation, flowing from the first issue which has been discussed  extensively of whether the Claimant is an employee or not, If the Claimant was neither an Employee nor a Director in the 2nd Defendant Company Nature’s Renaissance international Limited, then on the second issue, the Defendant is bound to fail with its claim, as the claim will have nothing to stand on, as the latin maxim posit “Ex nihilo nihil fit”. Counsel refers the court to the celebrated case of  UAC Macfoy (1961) 3 WLR 1405 (supra) , where Lord Denning declared that ;

“If an act is void. Then it is in Law a nullity, and every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse”.

Counsel further submitted that, it is the Law that on issues of wrongful dismissal as in the instant case, the Claimant is not entitled to damages, in the NITEL PLC V OCHOLI (2001) 10 NWLR (PT.720) 188. It was established that in an Action of wrongful dismissal (as in the instant case), a plaintiff is not entitled to general damages as they belong to claims in tort. Counsel refers to the case of Shell Petroleum Dev. Co V Tiebo VII (1996) 4 NWLR (Pt445) 657, and submitted that the claimant isn’t entitled to monthly remuneration also as he is not an employee of the company and was never paid remuneration as an employee or Salary as one and he didn’t present any proof of any Employment relationship with the defendants, and any money given to him by the 1st defendant was given to him as support for an old friend and colleague who had difficulty and nothing more, it was never meant to create contractual relations, as the 1st Defendant paid rent, school fees among other things for the claimant, just to support him, and he never asked for a refund, which the claimant acknowledged that he did. In L. U. T. H. M. B. v ADEWOLE (1988) 5 NWLR (PT.550) 406 The Appeal Court settled the issue of when arrears of salary can be claimed:

“When a claim is for arrears of salary, such claim pre-supposes entitlement to such salary and a denial of payment when and as it fell due”. Counsel submitted that the Claimant was never an employee of the Defendants Company, as he was never given an employment contract, and or an employment letter, and thus have never received salary, neither did he tender salary pay slip from the defendants company. Counsel further argued that the claimant is not entitled to any salary or arrears/monthly remuneration.

Counsel also contended that the Claimant having not suffered any damages be it mental torture or financial hardship, as no evidence of these were put before the court, to prove that the Claimant business has stopped or crumbled due to Defendants actions or inactions. To succeed in such a claim, such actions must be specifically pleaded and proved in court. The claimant business has not stopped and his mental health is still intact as he is still Compounding and trading in herbs till now.

Counsel urged the court to resolve issue 2, in favour of the defendants and dismiss all the reliefs of the Claimants for Damages with substantial cost for wasting the precious time of this Honourable Court.

In concluding his submission counsel urged the court to grant the Defendants prayers as prayed in its Defence, and Dismiss the Case of the Claimant as lacking in merit, and being vexatious, frivolous and basically aimed at gold digging, Counsel further urged the court to strike out all the Prayers of the Claimant with substantial cost for wasting the time of the Court and the Defendants.

THE SUBMISSION OF THE CLAIMANT.

Mercy Abasekan Ekpuk, Esq; counsel for the claimant adopted the claimant’s final written address franked by her as her argument in this case. In the Final written address three issues were formulated for resolution. They are:-

Whether the letter of appointment dated 7/7/2020 created a contract of service between the claimant and the defendants thereby giving this court the jurisdiction to adjudicate on the claimant’s case’’.

Whether the 1st defendant(sic) contention that he never consulted the claimant for support or idea in making any of the supplement and that he had no knowledge of the claimant’s product called super attack exhibit C8 was correct.

whether the claimant(sic) appointment as a director of the 2nd defendant was terminated.

ARGUMENT:

Issue 1, Whether the letter of appointment dated 7/7/2020 created a contract of service between the claimant and the defendants thereby giving this court the jurisdiction to adjudicate on the claimant’s case’’.

In arguing this issue counsel submitted that the answer to the above question is in the affirmative. The law is trite that a letter of appointment is the bedrock on which a claimant can lay claim to being an employee of an employer and without the production of such a document, no employment can be inferred. To support this contention counsel relied on the case UMERA VS. NRC (2022)10 NWLR (PT.1838). For counsel exhibit C1 is a letter of appointment given to the claimant by the 1st defendant on behalf of the 2nd defendant. By the operation of exhibit C1, there was a valid contract created between the claimant and the defendants as all the ingredients of a valid contract can be seen in their relationship: there was offer, acceptance, consideration, intention to create legal relationship and capacity to contract. All these five ingredients are essential, and a valid contract cannot be formed if any of them is absent. To support his contention counsel relied on the cases of BFIG V BPE (2008) ALL FWLR (PT. 416) 1915; ORIENT BANK (NIG) LTD. V. BILANTE INTERNATIONAL LTD (1997) NWLR (PT.515) 37.

Counsel refers to paragraph 4 of the statement of facts where the claimant asserts that the 1st defendant called him on the 04/07/20 and told him of his intention to make him one of the directors in the 2nd defendant outfit. So, there was an intention to create a legal relationship. In paragraph 5 of the statement of claim, the claimant said he accepted the offer. Paragraph 6 of the statement explains that he was given exhibit C1 which was signed by the 1st defendant himself. He did not deny this signature. He only alleged he made a mistake. The claimant furnished considerations by serving him and furnishing him with the information the 1st defendant needed for the herbal components necessary for treating several health conditions. According to counsel exhibit C2 (documents 2-12 and the audio CD exhibit C9, also give credence to the claimant’s assertion. In this case, the services of the claimant were severally employed by the defendants.

Counsel continued his submission that a contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. According to Black’s Law Dictionary 8th Edition, a contract is defined as a promise or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. All parties to a contract intended for the contract to be binding and enforceable. On this counsel refers to the cases of NJIKONYE V. MTN NIG. COMM. LTD. (2008) 9 NWLR (PT.1092) 339, P.T.F. V. W.P.C. LTD. (2007) 14 NWLR (PT. 1055) 478; METIBAIYE V. NAREILI INTERNATIONAL LTD. (2009) 16 NWLR (PT. 1167) 326; DODO V. SOLANKE (2007) ALL FWLR (PT. 346) 57.

Counsel in response to the argument of counsel for the defendants on exhibit C1, letter of appointment, that it is not letter of employment and did not make claimant employee of the defendant, counsel submitted that the answer as to the question whether a person is a director in a company or an employee, the Nigerian Courts most especially, the National Industrial Courts always adopt a common law principle and the International Labour Organisation (ILO) doctrine in labour related matters to determine the issue. The principle of law adopted by International Labour Organisation focuses on the factual existence of a contract of service and the nature of the relationship rather than on the title of the individuals. On this submission counsel find support in the case of SHENA SECURITY CO. LTD VS. AFROPAK (NIG) LTD. (2008) 18 NWLR (PT. 1118)77. Counsel further argued that the principle emphasizes that existence of an employment relation should be guided by the facts of what was actually agreed and performed by the parties and not by the name the parties gave the contract.

Counsel submitted that in this case, the letter of 7/07/2020 exhibit C1, labelled, the offer letter signed by the 1st defendant as ‘an appointment to serve as a director’ with the 2nd defendant. But from the facts narrated by the claimant in his amended statement of claim, the 1st defendant used the services of the claimant not as a director which he tagged him but as an employee and the claimant worked for the defendants in many ways. All these facts can be seen in exhibit C2 and C9.  By the provision of the Labour Act, Laws of the Federation, 2004, Section 91 defines a worker thus;

Any person who has entered into or work 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 the contract is a contract of service personally to execute any work or labour, but does not include, any one exercising administrative, executive, technical or professional functions as public officers or otherwise or members of employer’s family; representatives; agents and commercial travelers in so far as their work is carried on outside the employer’s permanent place of business; any person who is given articles or materials to make up, clean, was altered, ornamented, repairs or adapted for sale in his own home or on other premises not under control of the person who gave out the article or material and; any person employed in a vessel or aircraft to which the laws of merchant shipping or civil aviation applies. See also the case of SHENA SECURIT CO LTD V AFROPAK (NIG.) LTD & ORS (2008) LPELR-3052(SC) 1 @ 13, PARAS A-D.

According to counsel evidence of employment could be seen from exhibit C2 which consist of 12 documents, and exhibit C9 which is the audio CD evidencing the phone conversions, the claimant instructed the 1st defendant on his expressed demand; the different types of herbal ingredients for the treatment of various ailments; example burning of fat, slimming tea, treating poor erection, diabetes, hypertension etc. So, the claimant did not just sit as a member of the Board of Director under the appointment by shareholder, he was personally appointed by the 1st defendant and made to run errands common with an employee for the 2nd defendant. The 1st defendant uses the services of the claimant in many ways.

Counsel also refers to 1st defendant evidence during cross examination that he does not remember exhibit C2 and in paragraphs 8, 9 and 10 of his statement of defence the defendant denied paragraphs 9, 10 and 11 of the claimant’s statement of claim but did not say what manner of conversation, text messages and the whatsapp communication they used to have with each other was. Counsel contended, the law of traverse is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, cannot amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. To support this contention counsel relied on the following cases: EL-TIJANI V. SAIDU [1993] 1 NWLR (PT. 268) 246; JACOBSON ENGINEERING LTD V. UBA LTD [1993] 3 NWLR (PT. 183) 586; LEWIS & PEAT (NRI) LTD V. AKHIMIEN [1976] 1 ALL NLR (PT. 1) 460; UBA LTD V. EDET [1993] 4 NWLR (PT. 287) 288; OHIARI V. AKABEZE [1992] 2 NWLR (PT. 221) 1; LSDPC V. BANIRE [1992] 5 NWLR (PT. 243) 620; DIKWA V. MODU [1993] 3 NWLR (PT. 280) 170; SANUSI V. MAKINDE [1994] 5 NWLR (PT. 343) 214; EKWEALOR V. OBASI [1990] 2 NWLR (PT. 131) 231 AND IDAAYOR V. TIGIDAM [1995] 7 NWLR (PT. 377) 359.

According to counsel the various conversation as per exhibit C9, CD audio recording also shows that claimant worked for the defendants. The 1st defendant did not deny having the various conversation as per content of the CD, exhibit C9, with the claimant. It is trite position of law that fact not contravened by the other party is deemed admitted. To support his submission counsel cited section 74 OF THE EVIDENCE ACT. And relied on the cases of OKPARAEKE V. EGBUOL1U (1941) 7 WACA 53; NWIZUK V. ENEYOK (1953) 14 WACA 354; DIN V. AFRICAN NEWSPAPERS LTD. (1990) 3 NWLR (PT. 139) 392.” PER. SANUSI, J.C.A.

Counsel urged the court to hold that the appointment letter  given to claimant though tagged appointment as a member of the board of director is a letter of employment as the claimant’s services were severally used by the defendants in producing the health supplements the defendants are now marketing worldwide.

Issue 2: Whether the 1st defendant contention that he never consulted the claimant for support or idea in making any of the supplement and that he had no knowledge of the claimant’s product called super attack exhibit C8 was correct.

Counsel answers the above question is in the negative, as the contents of exhibit C2 and exhibit C9 speaks for themselves. Exhibit C2 as already analysed under issue No.1, show that the 1st defendant who alleged he learned traditional medicine from youth lied on oath. The audio CD was played in court and the 1st defendant did not contravene same but the claimant has a duty to establish his case by credible and cogent evidence. As decided in the case of AGBOOLA VS. UBA [2012]7 QRR. PG 187@41; OYEDEJI V. OYEDEMI (2008) 6 NWLR (PT.1084) 485@ 487; Section 37 of Evidence Act.

It is a settled position of law that when a claimant backs up their allegations with credible, admissible evidence, in this case exhibit C9, the burden of proof to disprove those facts shifts to the defendant. See the case BOARD OF CUSTOMS &EXECISE VS. BARAU (1982) 10 SC. 48 @126. The defendant has not placed any evidence before the court to the contrary, the claimant is entitled to reliefs sought. Counsel relying on the case of the case of SAMUEL &ANOR VS. FBN PLC (2023) LPER- 60578(CA), submitted that the 1st defendant’s lying on oath on lack of knowledge of exhibits 8 and 9 is malafide and contradictory and put him forth to the court as a false witness. Counsel urged the court to hold that exhibits and C8 and C9, are evidence within the knowledge of the 1st defendant.

Counsel urged the court to hold from all the evidence presented by the claimant before this court that the defendant had no knowledge of his own on the preparation of traditional medicine but it was the claimant that taught him.

Issue 3: whether the claimant(sic) appointment as a director of the 2nd defendant was terminated.

The answer to the above question is in the negative. The 1st defendant tendered, exhibit D1 and D2. Which are alleged to be letter of revocation of the claimant’s appointment as a director in the employ of the 2nd defendant and the board resolution to remove the claimant’s appointment. According to counsel, it is obvious from the facts before this court that exhibit D1 and D2 was made for the purpose of this case. During trial, the 1st defendant said in paragraph 10 of his statement of defence that he wanted to make the claimant a director in the 2nd defendant, but the company had an emergency board meeting, where the board decided that the 2nd defendant did not need a director so notice was sent to the claimant to that effect. However, the defendant when asked during cross examination whether there was any evidence before the court to show that the claimant received exhibit D1 and D2, the 1st defendant answered the question in the negative. The fact is that exhibit D1 and D2 alleged to have been given to the claimant ought to have had means by which the documents were served on the claimant and the evidence that the claimant received the letters either a copy of exhibit D1 and D2 would have been signed and collected by the defendant or if it was sent through courier, the evident of delivery ought to have been shown as an exhibit before the court. Failure to do so infringed on the claimant’s Constitutional right to fair hearing. If such proof was at all done, the defendant ought to have produced it and perhaps attached it to his statement of defence. It is trite that evidence withheld is presumed to be detrimental to the case of the party who withheld it. See section 167(d). See also the case of APC VS. INEC (2014) 9- 11 KLR (PT. 353).

Counsel insisted that the fact is that exhibit D1 and exhibit D2 was made for the purpose of this case. A document made during the pendency or in contemplation of a case is inadmissible in evidence. On this reliance was placed on the case of ANAGBADO VS. FARUK (2019) 1 1NWLR (PT. 1653)292 PG. 307 PARA E-F. Counsel maintained that these exhibits were made for the purpose of this case because after the 1st defendant alleged the board passed a resolution and purportedly served a letter to the claimant, on the 10- 12-2020.

Counsel further submitted that exhibit C2 -1, evidence of transfer of the sum of N600,000 by the 1st defendant to the claimant on behalf of the 2nd defendant is before this honourable court and it is dated the 21st day of June, 2022. This evidence is also contained in paragraph 13 of the claimant statement of claim. The 1st defendant in one of the phone conversations called this 1% Global turnover. In his statement of defence at paragraph 11, he denied this and averred that it was stipend he used to give the claimant to support his business which he alleged had collapsed. Can the court believe the defendant? The answer is no because exhibit C2- 1 on its face look does not bear the 1st defendant’s name but that of the 2nd defendant. It was sent to the claimant well over 2 years after exhibits D1 and D2 were made.  So why did the 2nd defendant pay the claimant in 2022 after he had terminated his appointment in 2020? Counsel urged the court to discountenance the defendants’ bundle of lies and hold that exhibit D1 and exhibit D2 which lacks proof of service to the claimant was made by the defendant for the purpose of his defence of this case and so unaccepted before this court.

In concluding his submission counsel submitted that from the facts presented by the claimant contained in the pleadings, documentary and oral evidences before this Honourable court, the claimant has been able to prove his claims before this court and is therefore entitled to all the reliefs sought.

COURT’S DECISION:

I have carefully considered the processes filed in this suit, the evidence adduced at the trial as well as the written and oral submission of counsel for the parties.

The task to be performed by this court is to examine the processes and evidence of the parties vis-à-vis the law applicable to the facts of the case to see if the claimant has been able to prove entitlement to any of the reliefs sought.

However, before proceeding with determination of the dispute submitted before the court, I shall at this juncture endeavour to thrash out issue of jurisdiction of this court to hear and determine this suit, raised by the defendants in their final written address. This is because, jurisdiction, being a threshold matter must be determined before the court can proceed to deal with the substantive complaint of the parties before it. Where jurisdiction is absent, whatever the court proceeds to do, however elegantly done, amounts to a nullity, a waste of precious time and is ultimately void.

The issue of jurisdiction is a fundamental one that goes to the root or foundation of the matter. It is of paramount importance to any adjudication and must be considered first to avoid incidents of futility in situations where a court wrongly exercises jurisdiction over matters which it has no vires. That explains why the issue of jurisdiction can be raised at any time, in the court of first instance, the Court of Appeal or in the Supreme Court for the first time. See A.-G., Anambra State v. A.-G., Fed. (1993) 6 NWLR (Pt.302) 692; Barclays Bank of (Nig.) v. Central Bank of Nigeria (1976) 6 SC 175; Dangana v. Usman (2013) 6 NWLR (Pt.1349) 50; Usman Dan Fodio University v. Kraus Thompson Organization Ltd. (2001) 15 NWLR (Pt.736) 305.

Courts being creatures of Constitution or statutes have their jurisdiction delineated by the Constitution or the statute that creates a particular court that will also confer jurisdiction on that court and it is only by amendment of the Constitution or statute by the legislature that may vary or increase the jurisdiction of any court created by the Constitution or statute. See Okulate v. Awosanya (2000) 2 NWLR (Pt.646) 530.

A court is competent: when it is properly constituted as regards members and qualification of the members of the bench and no member is disqualified (a) for one reason or the other; and the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from (b) exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of (c) jurisdiction.

The law is trite that all the requirements/ingredients must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it engages in an exercise in futility as the decision arrived at in such a case amount in law to a nullity irrespective of how well the proceedings were conducted. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Skenconcult v. Ukey (1981) 1 S.C. 6; Benin Rubber Producers Ltd. v. Ojo (1997) 9 NWLR (Pt. 521) 388; Umanah v. Attah (2006) 17 NWLR (Pt.1009) 503; NEPA v. Onah (1997) 1 NWLR (Pt. 484) 680; Emeje v. Positive (2010) 1 NWLR (Pt. 1174) 48; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535; Maja v. Samouris (2002) 7 NWLR (Pt. 765) 75; Duke v. Akpabuyo L. G. (2005) 19 NWLR (Pt. 959) 130 referred to.] (Pp. 234-235, paras. H-D; 238, paras. H-E).

Jurisdiction of court is determined by the claim of the claimant and not by the defence, and so in the case at hand it is the complaint and statement of facts which contains the reliefs sought before the court are the documents that must be examined in detail to ascertain whether it comes within the jurisdiction conferred on the court. Therefore, the determinant factor as to whether or not a court is seized of jurisdiction is the claimant’s claim which is the initiating process. In determining jurisdiction, the totality of all that constitute the claim before the court are of relevance and must be taken into consideration for purpose of ascertaining whether or not the subject matter of the case is within the jurisdiction of the court. It is a matter of fact, objective in nature and which does not take into account the defendant’s defence to the action. Jurisdiction as the life wire or threshold of adjudication, the court can neither clothe itself therewith where none exists nor can it be conferred by consent of parties or counsel. See A.N.P.P. v. Goni (2012) 7 NWLR (Pt.1298) 147.

The defendant in arguing against this court having jurisdiction relied on section 7(1) of the National Industrial Court Act, 2006, though that section of the statute has enumerated areas of jurisdiction of this court a more comprehensive provision is section 254C of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

Therefore, in ascertaining jurisdiction of this court both the procvision of the Constitution and that of the Act, becomes relevant.

In the amended statement of facts, the claimant is seeking for grant of seven reliefs. Reliefs a, b, c and d, are the main claims of the claimant while reliefs e, f and g, are ancillary claims dependent on grant of the main reliefs.

It is clear from the reliefs being sought by the claimant and the facts pleaded in the statement of facts, the grouse of the claimant is his complaint about purported removal of his name from the board of directors and employment of the 2nd defendant, claiming that he is still an employee of the 2nd defendant entitled to be paid all accrued 1% global profit made by 2nd defendant, the sum of One Million Two Hundred Thousand Naira being accumulated monthly remuneration from July, 2022 to February, 2023, when this suit was instituted in court, payment of N150,000.00 (One Hundred and fifty Thousand Naira) monthly from March, 2023 till the final judgment is given. The remaining reliefs borders on cost, damages and interest.

It is clear to me from the reliefs sought and the pleadings of the claimant that the claimant is challenging removal and payment of 1% global profit both as director and employee of the 2nd defendant. The question whether a company director is also an employee under Nigerian Law has long generated doctrinal and practical controversy. However, under the Companied and Allied Matter Act 2020, directors of companies occupy a unique position in corporate structure, as they are entrusted with managerial authority and fiduciary responsibility, yet many directors, particularly executive and managing directors perform operational roles traditionally associated with employees. This dual status raises fundamental question concerning employment protection, termination procedures, entitlement to benefits, pension rights.

In Nigeria, directors are traditionally regulated by the Companies and Allied Matters Act, 2020. While employees are regulated by Common law, the Labour Act and other employment legislations. See YALAJU AMAYE v ASSOCIATED REGISTERED ENGINEERING CONSTRUCTORS LTD (1990) 4 NWLR (p.145) 422.

The Companies and Allied Matters, Act, in section 269(1) of CAMA defined directors as persons duly appointed by the company to direct and manage the business of the company. The term includes any person occupying the position of director by whatever name called; and includes any person in accordance with whose direction or instructions the directors of the company are accustomed to act. The phrase by whatever name called’ includes all classifications of directors such as executive directors, non-executive directors, independent executive director, managing director etc. For purposes of their removal under section 266(1) of Companies and Allied Matters Act, 2020, all directors whether executive or non-executive, are the same as long as they are engaged to direct and manage the business of the company. See LONGE V FIRST BANK (2010) 6 NWLR (Pt.1189) 14.

By sections 305-306 of CAMA, directors are fiduciaries and agents of the company and owe duties of loyalty, care, skills and good faith. Generally, their position is that of control and governance rather than subordination. Nigerian Courts have consistently held that appointment of director does not, by itself, create a contract of employment. See YALAJU AMAYE v ASSOCIATED REGISTERED ENGINEERING CONSTRUCTORS LTD (1990) 4 NWLR (p.145) 422. In this case the Supreme Court emphasized that directors of a company are trustees, agents, and fiduciaries of the company.

However,  under the Labour Act, a worker was defined ‘as a person who works under a contract with an employer, whether the contract is for manual labour or clerical work, but it does not include persons exercising administrative, executive, technical of professional functions as public officers or otherwise.  See section 91 of Labour Act. Going by the Labour act a director appointed under CAMA may not be an employee of the company.

As argued by counsel for the claimant, tThe modern way of looking at status of director is to use the rather than the title, post or position, the common law approach is by focusing on factual existence of a contract of service and the nature of the relationship rather than the given title, position or post being occupied. This approach is in tandem with ILO jurisprudence which emphasizes the principle of primacy of facts. The principle emphasizes that the existence of an employment relationship should be guided by the facts of what was actually agreed and performed by the parties and not by the name they have given the relationship or contract. See SHENA SECURITY CO. LTD V. AFROPAK (NIG) LTD & ORS(2008) 18 NWLR (Pt.1118) 77; (2008) LPELR-3052(SC).

Therefore, the question of whether this court has jurisdiction to entertain this suit will depend on the finding on whether a director is an employee of the company. This will be revealed by the facts of the case i.e. whether the director apart from his appointment as director, also has a contract of employment or service contract with the company. It is interesting to note that the provision of section 288(6) of CAMA had recognized dual capacity theory, which enables director to hold dual capacity as director and employee status in a company simultaneously at the same time. This was firmly entrenched in the old case of LEE V LEE”S AIR FIRMING LTS (1961) AC 12. See also the case of IWUCHUKWU V NWIZU & ANOR (1994) 3 NWLR 7 (Pt.357) 379.

The above authorities are clear proof that a person may hold the office of director, while also entering into a contract of employment with the company. The director’s fiduciary obligations arise from statute and corporate governance norms, while his employment relationship arises from contract and labour law. Further support for recognizing dual capacity theory could be gathered from the cases of LONGE V FBN PLC (supra). IYALAJU AMAYE V ASSOCIATED ENGINEERING (supra) and the Court of Appeal decision in the case of OLARENWAJU V AFRIBANK (2001) 13 NWLR (Pt.371) 619. In these cases, the appellate courts recognizes that a director may also be an employee where a separate contract of employment exists between the company and director. This means a director will have his employment subject to corporate law and labour law.

This court has evolved a simple formula by way of question and answer to determine the court with jurisdiction in this type of case. In unreported case of OYEBANJI JULIUS & ORS. V SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA, SUIT NO NICN/LA/648/2013, B. B. Kanyip, J, as he then was (Now president of the court), put the question and answer as follows:-

‘’What legal rules would apply in resolving the issue at hand? If it is labour or employment law rules, then the (NICN) would assume jurisdiction, but if it is some other rules of law, then most probably the (NICN) would have no jurisdiction.’’

Applying the above formula in this case in resolving the issue of jurisdiction, I would like to straight away say that having regard to the reliefs and pleadings of the claimant, as well as exhibit C1 and exhibit C2, which form the fulcrum of claimant assumption that he is employee of the 2nd defendant, one would be right to say that exhibit C1, clearly in unambiguous terms shows that it is not a letter of employment based on labour or common law guiding contract of service. This is because as pointed out earlier in this judgment employment is determined by the existence of a substance of contract of service rather than by a formal title or post or office. Thus, why court is guided by a number of factors in determining existence of contract of service, such as intention of the parties,  remuneration, mutual obligations, degree of control and integration into the organization. In SHENA SECURITIUES V AFROPAK LIMITED (supra), the Supreme court emphasized the totality of the relationship of relationships between the parties as determinant of status of employment.

In view of the foregoing, and having regard to the totality of the reliefs and pleadings of the claimant it will be correct to come to the conclusion that exhibit C1, is not a letter of  employment capable of creating a contract of service, because it is in deficit of the factors that point to employment status being created.

For service rendered., Under the Nigerian labour jurisprudence an employer is duty bound to pay to employee agreed wages as consideration for service rendered by employee. In MOBIL PRODUCING (NIG.) UNLIMITED & ANOR v UDO (2008) 3 WRN 53, Omokri, JCA, as he then was observed that:

‘’It is well settled that in the contract of employment that service and wages are the twin pillars upon which a contract rests’’.

In the case at hand, the absence of provision for wages in exhibit C1, and provision of 1% profit (turn over), points directly to the fact that exhibit C1, being an offer for director in  strictly in a corporate governance capacity. The absence of provision for payment of regular salary or wages, which is a fundamental pillar of a master-servant relationship (employment) under Nigerian labour law and the explicit statement that "the appointment is no salaried’ which means no salary will be paid strongly negates an employment relationship as per exhibit C1.

The provision made in exhibit C1, for Global Turnover Share (1%), goes to show that the provision is for a director’s remuneration or a profit-sharing incentive, not an employment salary or wages. Under the Companies and Allied Matters Act (CAMA), directors can be remunerated via a percentage of company turnover or profits if authorized by the company's Articles of Association or general meeting.

Furthermore, the provision for Out-of-Pocket Expenses, contained in exhibit C1, which means reimbursing a director for expenses incurred while undertaking company assignments is a standard corporate governance practice. It is not an employment benefit, but rather an indemnity for carrying out official board duties.

Also, the work schedule as can be gleaned from exhibit C1, as prescribed for the claimant are; advising the company as a board member, attending board meetings, projecting the image of the company, representing her whenever the need arises, ensuring the interest of the company is protected at all times and availability to carry out other miscellaneous duties that may arise from time to time on behalf of the company, clearly describes fiduciary duties outlined in sections 305-309 of the Companies and Allied Matters Act, 2020 (CAMA). These are duties an officer owes to a company by law, not an employee's daily operational job description. Miscellaneous duties like "research" do not change this, as directors frequently conduct strategic analysis for board decisions.

Furthermore, the provision contained in exhibit C1, stating that the appointment of claimant is "subject to the decision of the company" mirrors the corporate right to remove a director. While in employment contracts there is requirement for strict adherence to procedure for determination of the contract.

Apply the "Control Test" to see whether exhibit C1, can confer employment on the claimant, it must indicate claimant is subject to the strict control and daily supervision of the employer. However, the facts as disclosed by pleadings and exhibit C1, clearly depicted failure of the Integration/Control Test, as the claimant’s duties of advising the board, protecting company interests, attending meetings, unequivocally show the claimant is part of the governing mind of the company, not a subordinate integrated into the daily workforce of the 2nd defendant.

After a painstaking examination and analysis of exhibit C1 and pleadings of the claimant, I have no choice than to come to the conclusion that in the absence of a separate distinct contract of service, the claimant’s action can only be determined using the provisions of Companies and Allied Matters Act, and not employment rules and regulations or law regulating employment, in the circumstances, this court lacked the requisite jurisdiction to hear and entertain this suit, which borders on removal of director and claim respecting 1% global profit, as these are questions fit to be determined by Federal High Court pursuant to the provisions of section 251 of the Constitution of the Federal republic of Nigeria, 1999, as amended.

In view of my finding on lack of jurisdiction by this court to entertain suit of the claimant, I hereby pursuant to the provision of section 24(2) of the National Industrial Court Act, 2006, order transfer of this suit to Federal High Court, Calabar Division for hearing and determination.

It deserves to be stressed that the provisions of section 24 of the National Industrial Court, Act, act as a jurisdictional safety net, explicitly in unambiguous term barring judges from of this court from striking out suits simply because they were filed in the wrong court. Instead, it mandates that the case must be transferred to the appropriate court with valid jurisdiction.

The Registrar of this court is hereby ordered to act accordingly.

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

Mercy Abasekan Ekpuk, Esq; for the claimant

V. N. Nwankwo, Esq; for the defendant.