IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD, OFR PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

DATE: 26 JULY 2023                                                                    

SUIT NO. NICN/ABJ/57/2023

 BETWEEN

Alphacyn Nigeria Limited                                                                                 -            Claimant

AND

1.      Registered Trustees of Prince and Princess Estate Residents Association

2.      Segad Security and Protection Company Limited                                    -        Defendants

REPRESENTATION

Odu Onabe, for the claimant.

K. O. Balogun, for the 1st defendant. Emmanuel Okani, for the 2nd defendant

RULING

INTRODUCTION

1. The claimant filed this suit on 6 March 2023 vide an originating summons. The claimant submitted this question for determination:

Whether considering the provisions of clause 12.0 of the Facility Management Agreement (FMA) between the Claimant and the 1st Defendant, which state that “this Agreement shall be effective as of the date of 1st January, 2018 and shall expire on the date of 31st December, 2022. Upon expiration of the above initial term, this agreement shall be renewed subject to clause 1.0 above and extended for a like period of time unless it is terminated as in clause 7.0” the said agreement cannot be said to have been wrongfully terminated by the 1st Defendant (emphasis is the claimant’s).

2. The claimant then prayed for the following reliefs:

(l) A DECLARATION that the termination of the Facility Management Agreement (FMA) between the claimant and 1st Defendant is incurably wrong, unlawful and therefore null and void and of no effect whatsoever.

(2)   A DECLARATION of this honourable court that clauses 1.0 and 12.0 of the said Facility Management Agreement duly executed between the 1st Defendant and the claimant has been conspicuously breached, violently violated and catastrophically desecrated by the 1st Defendant.

(3)  A DECLARATION that the unilateral appointment of a third party (2nd Defendant) to manage the facility contained in Agreement without the claimant’s right of first refusal being fully exercised is not in tandem with the words, letters, meditation, contemplation

and indeed the entire spirit of the Facility Management Agreement (FMA) and therefore unlawful, null and void and of no effect, whatsoever.

(4)  AN ORDER of this honourable court declaring any agreement made between the 1st Defendant and the 2nd Defendant or any other person(s) invalid and of no effect whatsoever.

(5)    AN ORDER of this honourable court compelling the 1st Defendant to renew the Facility Management Agreement between the claimant and the 1st Defendant in accordance with Clause 12.0 of the said Facility Management Agreement (FMA).

(6)   AN ORDER of this honourable court compelling the 1st Defendant to pay to the claimant the sum of N5,000,000,000 (Five Billion Naira) only, as general damages for wrongful termination of Facility Management Agreement (FMA).

(7)   AN ORDER of this honourable court compelling the 1st Defendant to pay the sum N5,000,000 (Five Million Naira) being the cost of prosecution of this case.

(8)   AND FOR SUCH ORDER OR FURTHER ORDERS as this honourable court may deem fit and just to make in the circumstances of this case.

3.  In reaction, each of the defendants field a preliminary objection. The 1st defendant’s preliminary objection was filed pursuant to Order 17 Rules 1, 4 and 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017), section 6(6) of the 1999 Constitution and under the inherent jurisdiction of this Court. The 1st defendant contends that this Court as presently constituted is deprived of jurisdiction to proceed to adjudicate in the matter herein on the following grounds:

(1)  That the claimant herein is not a legal entity known to law.

(2)   That the subject matter of this suit does not fall within the jurisdictional competence of this Court.

(3)  That this suit is incompetent and misconceived in law.

(4)   That the interest of justice will be met, if the reliefs sought in this application are granted by this Court as prayed.

4. Additional grounds upon which the 1st defendant relies on are:

(1)  That the claimant herein lacks the capacity to sue and be sued, as a legal entity.

(2)   That the claimant is not a legal entity known to law, having not been incorporated under the Companies and Allied Matters Act 2022.

(3)   That the dispute between parties does not fall within the jurisdictional competence of this Court as conferred on it by section 7 of the National Industrial Court Act and section 254C of the 1999 Constitution.

(4)  That there is no employer/employee relationship between the parties herein and or the cause of action does not deal with labour related matter.

(5)    That the subject matter of dispute between the parties herein relates to the simple contractor service entered into by the claimant and the 1st defendant.

(6)     That the claimant herein is an independent contractor whose rights, duties and obligations are not that of an employee.

(7)  That this Court has no jurisdiction to adjudicate over disputes of this nature.

(8)  That the subject matter of the suit is a contract for service and not of service.

(9)  That this suit is incompetent and misconceived in law.

(10)    That the interest of justice will be met by this Court declining jurisdiction to adjudicate over this instant suit.

5. The 1st defendant then prayed for:

(1)  AN ORDER of this Court striking out this suit for lack of jurisdiction.

(2)  AND SUCH further order or orders this Court may deem fit to grant in the circumstance.

6. The 2nd defendant’s preliminary objection is also brought pursuant to Order 17 Rules 1, 4 and 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017) and under the inherent jurisdiction of this Court. The 2nd defendant prays that this suit be dismissed/struck out for lack of jurisdiction. The grounds upon which this prayer is based are:

(1)  That the subject matter is not within the jurisdictional competent of this Court.

(2)  That the suit has not disclosed any cause of action against the 2nd defendant.

(3)   That the Industrial Court lacks the jurisdiction to entertain a matter not relating to contract of employment but that of an independent contractor.

(4)  That the matter bothers (sic) on service of employment.

(5)  That the main suit has not raised issues of contract for (sic) service but a pure issue of simple contract of security services.

(6)  That the suit is incompetent and misconceived in law.

(7)  That this Court lacks the jurisdiction to entertain this matter.

7. The 2nd defendant then prayed for the following reliefs:

(i)  AN ORDER of this Court dismissing/striking out the suit.

OR/IN THE ALTERNATIVE

(ii)  AN ORDER striking out the name of the 2nd defendant from this suit.

8. The claimant opposed both objections. Given that one of the grounds of the 1st defendant’s preliminary objection is that the claimant is not a body known to law, the claimant filed on 20 June 2023 an affidavit of facts with the certified true copy (CTC) of the certificate of incorporation of the claimant attached.

THE SUBMISSIONS OF THE 1ST DEFENDANT IN SUPPORT OF ITS PRELIMINARY OBJECTION

9. The 1st defendant started off that the crux of the dispute between the parties is that the 1st defendant, The Registered Trustees of Prince and Princess Estate, being the Residents, Association body established for the purpose of managing the affairs of the residents of the Estate, sometime in January 2018 entered in to a Five-year Facility Management Agreement with the claimant, Alphacyn Nigeria Limited, an alleged private limited liability company which carries on the business of “providing services including but not limited to management of

facilities and estates” within Nigeria for several of its clientele. That upon the expiration of the said Facility Management Agreement sometime in December 2022 by effluxion of time, the 1st defendant exercised its prerogative under the said agreement and elected not to renew its contractual relationship with the claimant after considering the claimant’s application for a renewal of the said agreement.

10. That upon communicating its decision to the claimant, the claimant refused to accept the 1st defendant’s decision. Rather, the claimant turned violent and invaded the 1st defendants Estate with thugs seeking to impose itself upon the 1st defendant and disrupt the 1st defendant’s daily activities and created tension in the Estate making the residents to panic and be worried for breakdown of law and order. That it was after these attempts failed, that the claimant instituted this action. To the 1st defendant, this Court lacks the jurisdiction to entertain this suit as the claimant lacks the legal capacity to institute same and the subject matter of the suit is not one within the jurisdictional competence of this Court.

11. The 1st defendant submitted two issues for determination, namely:

(i)   Whether the claimant herein is a juristic personality with the legal capacity to institute this suit.

(ii)   Whether having regard to the Facility Management Agreement, an issue bordering on simple contract, the subject matter of dispute herein, is an employer/employee relationship and or labour related matter, which would clothe this Honorable Court with jurisdiction to adjudicate over the claimant’s suit.

12. On issue (i), the 1st defendant submitted that parties, most especially the claimant, instituting a matter must be a juristic or natural person existing at the time the action was commenced, otherwise the action will be incompetent and the court will lack the jurisdiction to entertain it. That the claimant herein lacks the legal capacity to institute this action having not demonstrated through its originating process and accompanying documents that it is a juristic personality, citing Okechukwu & Sons v. Ndah [1967] NMLR 368 SC. That the claimant herein, Alphacyn Nigeria Limited, lacks the legal capacity to institute this suit, being an entity not registered with the Corporate Affairs Commission. That it is the law that mere addition of a suffix such as ‘Ltd’ or ‘Plc’ to the name of an entity is not sufficient to demonstrate its incorporation. What is required is for the claimant to produce its certificate of incorporation, referring to Nduka v. Ezenwaku [2001] 6 NWLR (Pt. 709) 517 SC cited and applied in Adama Beverages Ltd v. Galleon [2016] LPELR-40314(CA). That what is required of the claimant is to tender the certificate of incorporation, citing NNPC v. Lutin Investment Ltd & anor [2006] LPELR 2024(SC).

13.  That the claimant commenced this suit with the name ‘Alphacyn Nigeria Limited’ but the certificate of incorporation it attached to its originating summons as Exhibit A1 is that of ‘Alphacyn Pharmaceuticals Nigeria Limited’. That ‘Alphacyn Nigeria Limited’ and ‘Alphacyn Pharmaceuticals Nigeria Limited’ are not the same entities and that the certificate of incorporation of Alphacyn Nigeria Limited is not before this Court. Furthermore, that Alphacyn

Pharmaceuticals Nigeria Limited was incorporated on 12 April 2018 whereas the subject matter of the suit herein, the Facility Management Agreement was entered into on 1 January 2018, 3 months before the said Exhibit A1 was obtained. That assuming but not conceding that the said Exhibit A1 is that of the claimant, it was obtained after the Facility Management Agreement had been entered into and the agreement cannot, therefore, be ascribed to the claimant. That it speaks for itself that the Facility Management Agreement in issue was entered into between the alleged claimant and the 1st defendant and clearly and definitely not between the Alphacyn Pharmaceuticals Nigeria Limited and the applicant.

14.  In concluding this point, the 1st defendant submitted that having demonstrated the incompetence of the claimant to institute this action and competence being a vital factor in deciding the competency of an action and, therefore, the jurisdiction of the court, this Court should strike out this suit for being incompetent, having been initiated by a non-legal entity, citing Okechukwu & Sons v. Ndah (supra) and Ajao v. Sonola & ors [1973] 5 SC 119.

15. For issue (ii), the 1st defendant submitted that jurisdiction is the all-important factor that the courts will consider in any case that is brought before them. It is the ‘lifeblood of adjudication’, citing Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 423 SC. That in determining the jurisdiction of the court, the court is only allowed to look at the statement of claim of the claimant or the originating summons and the supporting affidavit, citing African Petroleum Plc v. Akinnawo [2012] 4 NWLR (Pt. 1289) 100 at 115 and PDP v. Sylva [2012] 13 NWLR (Pt. l316) 85 at 127. Furthermore, that the court is enjoined to look and consider the subject matter that is rightly endorsed on the statement of claim or the originating summons, citing Oloruntoba Ojo v. Abdul Raheem [2009] 13 NWLR (Pt. 1157) 83 SC at124, Madukolu v. Nkemdilim [1962] 2 SCNLR 341 and Akeem v. University of Ibadan [2003] 10 NWLR (Pt. 820) 584.

16.  To the 1st defendant, it is tempting to assume, as the claimant does, that all contract issues bordering on engagement of service or for service or work-related disputes are to be settled by the National Industrial Court (NIC). However, that this is not the case, in view of the fact that the jurisdiction of this Court is circumscribed and defined by the enabling statute and the 1999 Constitution. That the jurisdiction of this Court is a subject-based one and those subjects have been specifically set out in section 254C of the 1999 Constitution and section 7 of the NIC Act 2006, which is ‘impari material’. Thus, where the subject matter of adjudication does not fall within the Court’s jurisdictional competence, the Court is bound to decline jurisdiction to proceed with same.

17. Referring to section 254C(1)(a) of the 1999 Constitution, the 1st defendant submitted that the subject matter of adjudication herein is the Facility Management Agreement (Exhibit A2) between the parties, being the contractual document that the claimant placed before this Court  for interpretation and does not fall into the foregoing provisions of the Constitution and the NIC Act, citing AG, Kwara State v. Olawale [1993] 1 NWLR (Pt. 272) 645 SC at 674 - 675, which held that the question of whether a plaintiff's action is within the court’s jurisdiction can be determined on the subject-matter as contained on the face of the originating process.

18.  That after a considered review of the said Facility Management Agreement, it will be seen that it is a contract FOR service and NOT a contract OF service. Furthermore, that the relationship that exists between the parties as a consequence therefore, is not one of employer and employee (as would be the case in a contract of service) but rather of employer (master) and independent contractor (as exists in a contract for service). That Onamade in his ‘Documents in Litigation’ Vol. 2 (2014) at page 72, drew a distinction between “employee or a servant and an independent contractor” and the resulting contract of service and contract for service thus:

A servant (Employee)…is one who works for another under the control and direction of that other and is integrated into his business. But an independent contractor is under a duty to produce a given result for the employer but in actual execution of the work, he is not under the control of the employer in the way he does his work and may use his direction in things not specified beforehand. It has therefore been said that while the contact of a servant is one “of service”, that of the independent contractor is “for service”.

19.  The 1st defendant went on that the question of whether an employment contract like the Facility Management Agreement (Exhibit A2) is a contract OF service and creates an employer- employee relationship or is a contract FOR service and is, therefore, a relationship between an employer (or master) and independent contractor is a question that this Court has been confronted with severally. That in determining the nature of a contract of employment, the apex court set down certain criteria in order to arrive at the nature of contract that parties have entered into in Shena Security Co. Ltd v. Afropak (Nig.) Ltd & 2 ors [2008] 18 NWLR (Pt. 1118) 77 SC thus:

Where there is a dispute as to what kind of contract of employment parties entered into, there are factors which will usually guide a court of law to arrive at a right conclusion for instance:

(a)   If payments are made by way of “wages” or “salaries” this is indicative that the contract is one of service. If it is a contract for service, the independent contractor gets his payment by way of “fees”. In like manner, where payment is by way of commission only or on the completion of the job, that indicates that the contract is for service.

(b)   Where the employer supplies the tools and other capital equipment there is a strong likelihood that the contract is that of employment or of service. But where the person engaged has to invest and provide capital for the work to progress that indicates that it is a contract for service.

(c)    In a contract of service/employment, it is inconsistent for an employer to delegate his duties under the contract. Thus, where a contract allows a person to delegate his duties there under, it becomes a contract for services.

(d)   Where the hours of work are not fixed it is not a contract of employment/of service. See Milway (Southern) Ltd v. Wilshire [1978] 1 RLR 322.

(e)   It is not fatal to the existence of a contract of employment/of service that the work is not carried out on the employer’s premises. However, a contract which

allows the work to be carried on outside the employer’s premises is more likely to be a contract f or service.

(f)  Where an office accommodation and a secretary are provided by the employer, it is a contract of service of employment.

20.  The 1st defendant then proceeded to examine the Facility Management Agreement between the parties, in the light of the criteria set down by the apex court above.

(i)   Remuneration or Mode of Payment

21.  Paragraph 3.0 of the Facility Management Agreement provides for the claimant’s Remuneration. The said paragraph is reproduced hereunder as follows:

The Association shall pay 15% of the total approved expenditure for the month as the MANAGEMENT FEE (emphasis is the 1st defendant’s). The Monthly expenditure approved for the Facility Manager to discharge the above responsibilities is Two Million Eight Hundred and Ninety-Five Thousand, Five Hundred and Fifty Naira (N2,895,550.00) only, inclusive of the 15% Management Fee as provided in the table below.

22. That it is clear from the foregoing that, what the claimant is paid is a management fee and not salary or wages and having regard to the criteria set out by the Apex Court, it is clear that fees are paid to independent contractors and not employees, urging the Court to hold that by paying the claimant a management fee as stipulated in the agreement between the parties, the claimant is an independent contractor and the agreement is a contract FOR service and not an employee under a contract of service.

(ii)   Provision of Tools and Capital Equipment

23. Paragraph 2.0 of the Facility Management Agreement provides for the Terms of Engagement between the parties and stipulates various duties to be performed by the claimant in fulfillment of the Agreement. These duties range from management of environmental sanitation, electrical facilities, water installations and provision of information centre and security services, referring to paragraphs 2.1 - 2.4 and 2.7 of the Facility Management Agreement.

24.  That in the provision of these services, the claimant would naturally require the use of equipment for the sanitation which involves cleaning drainages and sweeping of roads, etc. In managing electrical facilities, which involve electrical repairs, replacement of transformer and feeder pillar fuse replacement, equipment and tools would be required by the claimant. Same applies to the Helpdesk and security services, yet there is nowhere in the entire Facility Management Agreement which stipulates that the 1st defendant is to provide equipment for the performance of these tasks, from which it is natural to conclude that it was the claimant that had been providing the required equipment during the span of the Facility Management Agreement. Accordingly, that it is clear that by providing the equipment and tools required for the performance of its duties, the claimant is an independent contractor and not an employee under a

contract FOR service having regard to the criteria (b) as set out by the apex court in Shena Security Co. Ltd v. Afropak (Nig.) Ltd (supra).

(iii)   Delegation of Duties

25.  The apex court clearly held in Shena Security Co, Ltd v. Afropak (Nig.) Ltd (supra) that an employee in a contract of service cannot delegate its duties otherwise, such an engagement becomes a contract for service. Even though the 1st defendant contracted the claimant for “services.....to manage, maintain and operate all that is within the area known as PRINCE & PRINCESS ESTATE, DUBOYI DISTRICT, ABUJA FCT…” (referring to Recital to the Agreement) and appointed the claimant/as its “lawful agent with full authority to do any all lawful things for the fulfillment of this Agreement” (referring to paragraph 3.0 of Agreement), the claimant was still permitted to “hire…skilled labour necessary to execute this agreement” (referring to paragraph 2.5 of the Facility Management Agreement).

26.  To the 1st defendant, by allowing skilled labour to be hired by the claimant in order to execute the agreement, this amounts to delegation of the duties assigned to the claimant under the agreement. Also, that this reinforces the 1st defendant’s position that the Facility Management Agreement is a contract FOR service and that the claimant is an independent contractor, urging the Court to so hold.

(iv)   Hours of Work

27. The 1st defendant submitted that it is apparent from the agreement as there is nowhere where the hours of work is stipulated, thus making it a contract FOR service.

(v)   Provision of Staff

28.  The 1st defendant also submitted that the Facility Management Agreement does not make provision for staff to be hired by the 1st defendant for the claimant. If anything, it is the claimant that is allowed to hire and delegate duties to skilled labour. That having demonstrated this criterion does not apply, it further fortifies the 1st defendant’s contention that the claimant is an independent contractor and the contract is one FOR service.

(vi)   Place of Business

29. That the court in Shena Security Co. Ltd v. Afropak (Nig.) Ltd (supra) held that:

…It is not fatal to the existence of a contract of employment/of service that the work is not carried out on the employer’s premises. However, a contract which allows the work to be carried on outside the employer's premises is more likely to be a contract for service.

30.  To the 1st defendant, having regard to the language used by the Court therein, “not fatal”, “more likely”, it is clear that there is no absoluteness therein and it is not conclusive nor cast in stone. Therefore, recourse should be had to the circumstances of each case. That in this instant case, the services required of the claimant by the 1st defendant include management of various facilities located within the 1st defendant’s premises, provision of a Helpdesk/information Centre and provision of security services. That having regard to these services, the question that

naturally arises is: can security services or maintenance of facilities be carried out other than at the 1st defendant’s premise? The 1st defendant answered in the negative. That having regard to the qualifying phrase, “more likely”, it denotes probability which if not supported by the facts can and should be dispensed with as it does not.

31.  In the final summation, that having examined the Facility Management Agreement in the light of the criteria set out by the apex court in Shena Security Co. Ltd v. Afropak (Nig.) Ltd (supra), it is clear and this Court will find upon closer perusal that the Facility Management Agreement only meets the criteria for that of an independent contractor and a contract FOR service.

Control Test

32. The 1st defendant continued that should the tenor of the agreement be considered particularly paragraph 2.0 of the agreement, which states that the claimant is given “full authority to do any and all lawful things for the fulfilment of this Agreement”, it will be found that the agreement is open-ended as to how the duties and obligations of the claimant are to be executed and same is left to the claimant. That this segues into the control test used for determining whether on individual is an employee or an independent contractor as held by the court in Sodipo v. Kuti [1971] 1 NCLR 303 at 311 - 312. That in the execution of the Facility Management Agreement, as shown above, the claimant is not under the control of the 1st defendant, unlike it would be under an employer and employee relationship, urging the Court to so hold.

Effect of Lack of Jurisdiction

33.  Ultimately, it is the 1st defendant’s submission that this Court cannot proceed to adjudicate on this suit having regard to the said subject matter of the suit being a contract FOR service and the claimant being an independent contractor, citing The Registered Trustees of Three-Wheeler Beneficiaries Operators Association, Lagos State v. Road Transport Employers Association of Nigeria unreported Suit No. NICN/LA/407/2013, the ruling of which was delivered on 10 May 2017, and where the court held thus:

This Court does not have jurisdiction over every workplace issue. For instance, as against contracts of service, this Court does not assume jurisdiction over contracts for service, and yet contracts for service are workplace issues strictly so called. See Mr. Henry Adoh

v. EMC communication Infrastructure Limited [2015] 55 NLLR (Pt. 189) 546 NIC, Ozafe Nigeria-Limited v. Access Bonk of Nigeria Plc unreported Suit No. NICN/LA/179/2014 the ruling of which was delivered on 16th March 2016 and Engr. Jude Ononiwu (Trading under the name of Judeson Chemical and Engineering Co. Ltd) v. National Directorate of Employment & Another unreported Appeal No. CA/OW/32/2015 the ruling of which was delivered on 22nd May 2015.

34.  That it is settled law that where a court finds that it has no jurisdiction to try a cause or matter, the appropriate order to make is to strike out the suit for want of jurisdiction, citing Lakanmi v. Adele [2003] 10 NWLR (Pt. 828) 353 and Oloruntoba Ojo v. Abdul Raheem [2009] 13 NWLR (Pt. 1157) 83 at124, urging the Court to do so.

Also, in a Supreme Court decision in Oloruntoba Ojo v. Abdul Raheem [2009] 13 NWLR (Pt. 1157) 83 at124

35.  The 1st defendant concluded by urging the Court to strike out the claimant’s case for being incompetent and outside the jurisdiction of this Court.

THE SUBMISSIONS OF THE CLAIMANT IN OPPOSITION TO THE 1ST DEFENDANT’S PRELIMINARY OBJECTION

36.  To the claimant, the 1st defendant challenged the jurisdiction of this Court on two (2) grounds: that the claimant is not a legal entity known to law; and that the subject matter of this suit does not fall within the jurisdictional competence of this Court.

37.  That the said 1st defendant premised his argument on the fact that the certificate of incorporation attached to the originating process is that of ALPHACYN PHARMACEUTICALS NIGERIA LIMITED and not ALPHACYN NIGERIA LIMITED; and because of that he contended that the claimant is not a legal entity known to law. It is the submission of the  claimant that, as it is crystal clear on the face of the originating process that the claimant is ALPHACYN NIGERIA LIMITED, which is an incorporated company, the said company was registered on 29 August 2008 with Registration No: 769813. (The certificate of incorporation is was then attached to the written address of the claimant.) That the certificate of incorporation of ALPHACYN PHARMACEUTICALS NIGERIA LIMITED was inadvertently attached to the originating process as Exhibit A1. That the said name, ALPHACYN PHARMACEUTICALS MGEZUA LIMITED, on the certificate was not pleaded anywhere in the processes filed. That it was a mistake of counsel and the law is trite that the mistake of counsel should not be punished on litigant, citing SPDC (Nig) Ltd v. Agbara [2016] All FWLR (Pt. 825) 287 at 337 and Zedekat International (Nig) Ltd v. Wema Bank Plc [2021] All FWLR (Pt. 1093) 3179 at 2205.

38. That in the instant case, the claimant pleaded the certificate of incorporation of ALPHACYN NIGERIA LIMITED in both the statement of facts and other accompanying processes but inadvertently attached the certificate of ALPIIACYN PHARMACEUTICALS NIGERIA LIMITED (a sister company) probably because of the similarity in the name. That the argument of the 1st defendant to rely on the said mistake of counsel and strike out the case is a mere technicality and the appellate courts have enjoined judges to avoid technicalities and do substantial justice, urging the Court to rely on the above cited judicial authorities and strike out the 1st defendant’s preliminary objection.

39 That the 1st defendant contended on the 2nd ground that the subject matter does not fall within the jurisdictional competence of this Court. It argued that the contract between it and the claimant is “a contract for service” and certainly not “a contract of service” and therefore, does not fall within the jurisdiction of this Court as contemplated by section 254C of the 1999 Constitution, which provided thus:

(1)   Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by

an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters -

(a)             relating to or connected with any labour, employment, trade unions, industrial relations and mutters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.

40.   That the question begging for answer here is: what is labour? That Chambers 21st Century Dictionary at page 758 defines ‘labour’ as “strenuous and prolonged work, especially of the physical kind that is done for payment”. That according to Black's Law Dictionary 11th Edition at page 1045 ‘labour’ means “work of any type including mental exertion”. That the Supreme Court in a similar vein defined ‘labour’ in Coca Cola Nig. Ltd v. Akinsaya [2018] All FWLR (Pt. 931) 614 at 688 per Eko JSC thus: “The term labour usually refer to work for wages”.

41.   To the claimant, having read through both statutory, judicial and academic literature (and same reproduced above) the pertinent question to answer is: was the facility management agreement between the claimant and the 1st defendant a contract to do work? That the answer is in the affirmative as contained in the recital part of the agreement which states: “the Association hereby employs the services of the Facility Manager to Manage, Maintain and operate all that is within the area known as Prince & Princess Estate, Duboyi District, Abuja…” That this quotation from the recital part of the agreement is clear even to the blind and audible to the deaf and dumb that it was a contract to do work. And if it was a contract to do work then it falls with the contemplation of section 254C of the Constitution, which gives this Court requisite jurisdiction to adjudicate upon same.

42.  That the operational word in this whole substratum is ‘labour' and ‘labour’ has been defined to mean work done for money. The recital part of the said facility management agreement has stated pointedly and in exquisite language that the manager (claimant) shall manager, maintain and operate all that is within the area. Article 3.0 of the said agreement states that “the Association shall pay l5% of the total approved expenditures for the facility manager to discharge the above responsibilities”. That this is a clear case of work done for money, which is labour.

43.  To the claimant, the gamut and substratum of the facility management agreement between it and the 1st defendant is a contract to do work for money which is ‘labour’ and, therefore, falls squarely within the contemplation of section 254C of the 1999 Constitution and of course within the meditation, projection and the conversation between the claimant and the 1st defendant.

44.   On the whole, that this Court, and certainly no other, possesses the requisite jurisdiction to entertain this matter, urging the Court to discountenance the argument contained in the preliminary objection raised by the 1st defendant in its entirely and strike out same for lacking in merit.

THE 1ST DEFENDANT’S REPLY ON POINTS OF LAW

45.  In replying on points of law, the 1st defendant asked whether this Court can countenance the certificate attached to the claimant’s written address. That the claimant had attached to its written address an uncertified certificate of incorporation purporting to be that of the claimant, Alphacyn Nigeria Limited. To the 1st defendant, this is a procedure that is alien and strange to the practice and procedure of this Court and the said certificate cannot be countenanced by this Court. That the 1st defendant’s objections are founded on a number of grounds, one of which is the question whether the claimant is a juristic personality or not is one of fact and to bring this fact to the attention of the Court, the claimant is obliged to file an affidavit containing depositions to this end. That this cannot be done via a written address as it is not a medium for giving evidence. That this is tantamount to counsel giving evidence in his written address, which is not only improper but frowned upon by the court. That the law is settled that no matter how brilliant a written address is, it cannot take the place of evidence, citing Polycarp Danladi v. Nasir El Rufai [2018] All FWLR (Pt. 924) 118.

46.   The 1st defendant went on that having elected to file a written Address and no affidavit in support, the claimant is to be estopped from doing same having regard to the established doctrine of election, as such would be an after thought and puts the 1st defendant in no position to reply and or jeopardize the position of the 1st defendant. That Order 17 Rule 10 of the NICN Rules 2017 provides that where a respondent intends to respond to a motion on notice, he shall file an affidavit, if any, and shall file a written address as well. That the said rule provides thus:

Where a Respondent served with a motion on notice intends to oppose the application, the Respondent shall filed Counter-affidavit (if any) and a Written Address within seven

(7) days of the service on the Respondent of such application. An advance copy of the Counter-affidavit and Written Address shall also be forwarded to the Claimant and any other party.

47.     The 1st defendant continued, and then asked whether this court can countenance an uncertified public document and or attach any legal value to it. That assuming but not conceding that this Court is disposed to countenancing the said certificate in spite of the alien procedure adopted, can any probative or legal value be attached to same? It is the 1st defendant’s contention that no iota of probative value can be attached to same, as it is not in the legally admissible form. The the certificate having emanated from a public body, that is the Corporate Affairs Commission (CAC), is a public document within the meaning of section 102 of the Evidence Act 2011 and as such only a Certified True Copy (CTC) is admissible in law. That the certificate attached to the claimant’s written address is a photocopy without any form of certification, citing section 102 of the Evidence Act 2011 and Northwest Energy Nigeria Ltd & anor v. Ibafon Oil Ltd [2014] LPELR-24133(CA).

48.  Furthermore, that the law is that where a document is rightly attached, unlike this case, for an application fought on affidavit evidence, the proper procedure would be to attach the certificate herein to an affidavit, citing AG, Kwara State v. Popoola [2020] 12 NWLR (Pt. 1738) 353 at

358. And if such party seeks the indulgence of the court to attach legal value to such  documents,

such documents must have met all the legal requirements notwithstanding that it ls attached to an affidavit, how much more this instant one that is attached to a written address. That is, if it is a public document as in this instant case, the legal requirements is for it to be certified, citing Bayawo v. NDLEA & ors [2018] LPELR-45030(CA). That this Court is a court of facts and law and does not apply the law in vacuum. Thus, where legal arguments are made without the necessary facts upon which it should be predicated, this Court will not countenance same as it is trite principle that one cannot place something on nothing and expect it to stand, citing UAC v. Macfoy [1962] 150 at 160.

49.   In conclusion, the 1st defendant urged the Court to discountenance and reject the arguments of the claimant as the facts upon which the Court would pronounce upon are absent, and then prayed the Court to strike out the suit for want of jurisdiction.

THE SUBMISSIONS OF THE 2ND DEFENDANT IN SUPPORT OF ITS PRELIMINARY OBJECTION

50.   To the 2nd defendant, the gravamen of the dispute in this case is that the claimant was engaged as an independent contractor to provide security services to the 1st defendant; and on the expiration of the contract terms, the 1st defendant elected to terminate the contract for service provisions and employ the services of the 2nd defendant to provide the same services.

51.  The 2nd defendant then submitted two issues for determination, namely:

(a)  Whether this Court has the jurisdiction to entertain this suit.

(b)  Whether the suit disclosed any cause of action against the 2nd defendant.

52.     On issue (a), the 2nd defendant submitted that jurisdiction is the live wire of every adjudication. It is the limits imposed on the power of a validly constituted court to hear and determine the issues between persons seeking to avail themselves of its process by reference to the subject of the issues or to the person between whom the issues are funded or to the kind of reliefs sought. That the question of jurisdiction of a court is a radical and crucial question of competence because if a court has no jurisdiction to hear or determine a matter, the proceedings are and remain a nullity ab initio, no matter how well conducted and brilliantly decided they might be because a defect in competence is not intrinsic but extrinsic to the process of adjudication, citing Network Security Ltd v. Dahiru & ors [2023] 1 WRN 29 at 47, Galadima v. Tambai [2000] 6 SC (Pt. I) 133, Jeric Ltd v. Union Bank [2001] 1 WRN 1 and MPPP v. INEC (No. 2) [2016] 43 WRN 47. The 2nd defendant then submitted that this Court lacks the powers and the vires to entertain the claims of the claimant as same do not have anything to do with employment. The 2nd defendant invited the Court to examine the originating summons as filed by the claimant and all the documents accompanying same.

53.   The 2nd defendant went on that the jurisdiction of this Court is determined by section 7 of the National Industrial Court (NIC) Act 2006 and section 254C of the 1999 Constitution. That the subject matter of this suit is anchored on Exhibit A2 which is the contractual agreement between the claimant and the 1st defendant. That the claimant having been engaged by the 1st

defendant on the strength of Exhibit A2 is not within the contemplation of matters over which this Court can exercise jurisdiction, being a matter of contract for service and not contract of service, citing Shena Security Co. Ltd v. Afropak Nig Ltd & 2 ors [2008] 18 NWLR (Pt. 1118) 77, Mr Henry Adoh v. EMC Communications Infrastructure Limited [2015]55 NLLR (Pt. 189) 546 NIC, Ozafe Nigeria Limited v. Access Bank of Nigeria Plc unreported Suit No. NICN/LA/ 179/2014, the ruling of which was delivered on 16 March 2016 and Engr. Jude Ononiwu (Trading under the name of Judeson Chemical and Engineering Co. Ltd) v. National Directorate of Employment & another unreported Appeal No. CA/OW/32/2015. That in these cases, the Supreme Court, Court of Appeal and this Court have taken a solid position that it lacks jurisdiction to entertain any matter relating to service for employment, just like in this instant case, urging the Court to decline jurisdiction.

54.  For issue (b), the 2nd defendant submitted that a cause of action has been defined in Senator Dahiru Gossol v. Alhaji Abubakar Tutare and ors [2012] 7 WRN 118 at 182 as “facts or situation arising from those facts from which there may emanate a right of action for which a remedy may be sought”. That there must be a dispute against a defendant in a matter. That in the instant case and on looking at the originating processes before this Court, there is no serious issue or dispute between the claimant and the 2nd defendant, and the claimant does not have any claim against the 2nd defendant. That in following the decisions of Williams v. Williams [2008] 33 WRN 1, this Court should hold that there is no cause of action against the 2nd defendant. That Exhibit A2 was made between the claimant and the 1st defendant. That the 2nd defendant is not a signatory or a party to the agreement as contained in Exhibit A2, and as such is not bound by the agreement that it is not privy to, urging the Court to so hold.

55.   In conclusion, the 2nd defendant urged the Court to grant the reliefs as contained in the preliminary objection as this suit is incompetent and liable to be dismissed/struck out.

THE SUBMISSIONS OF THE CLAIMANT IN OPPOSITION TO THE 2ND DEFENDANT’S PRELIMINARY OBJECTION

56.   In replying on points of law, the claimant reiterated the two grounds of the 2nd defendant’s objection. On the the 2nd defendant’s 1st ground that the subject matter does not fall within the jurisdictional competence of this Court, and the 2nd defendant’s argument that the contract between the claimant and the 1st defendant was one for service and not one of service, the claimant reiterated its argument as to wider definition of ‘labour’ on the same issue as earlier raised by the 1st defendant. There is no point repeating the said arguments here.

57.  On the issue of cause of action not being disclosed, the claimant reproduced its reliefs 3 and 4, which are:

(3)  A DECLARATION that the unilateral appointment of a third party (2nd Defendant) to manage the facility contained in Agreement without the claimant’s right of first refusal being fully exercised is not in tandem with the words, letters, meditation, contemplation and indeed the entire spirit of the Facility Management Agreement (FMA) and therefore unlawful, null and void and of no effect, whatsoever.

(4)  AN ORDER of this honourable court declaring any agreement made between the 1st Defendant and the 2nd Defendant or any other person(s) invalid and of no effect whatsoever.

58.  To the claimant, if the above two (2) reliefs are granted, the 2nd defendant will certainly be affected. That the above two (2) reliefs, therefore, make the 2nd defendant a desirable party, citing Col. Hassan Yakubu (Rtd) v. the Governor of Kogi State & ors [1995] 9 SCNJ 122. That this Supreme Court authority shows that te claimant must not disclose a wrong done by the 2nd defendant. That what is important is whether the decision of the Court will affect the defendant. That in the instant case, if those reliefs are granted the agreement between the 1st and 2nd defendant will be declared null and void, adversely affecting the interest of the 2nd defendant. Hence the need to make the 2nd defendant a party to the suit. On the strength the Supreme Court authority, the claimant urged the Court to hold that the 2nd defendant is a desirable party and assume jurisdiction in the said matter.

59.   On the whole, that this Court, and certainly no other, possesses the requisite jurisdiction to entertain this matter. That this Court should discountenance the argument contained in the preliminary objections raised by the defendants in their entirely and strike out same for lacking in merit.

60.  The 2nd defendant did not file any reply on points of law.

COURT’S  DECISION

61.   I took time to consider the processes and submissions of the parties in both preliminary objections. The key issue before this Court from both objections is whether this Court has jurisdiction over contracts for service in addition to its jurisdiction over contracts of service. The parties are all agreed that the contract in issue, calling for interpretation, is a contract for service. Of course, other issues were raised. I start off with these other issues.

62.  The first issue to be resolved is that raised by the 1st defendant i.e. that the claimant did not attach its proper certificate of incorporation; and even when it did, what it brought forward was an uncertified copy. On 20 June 2023, the claimant filed an affective of facts and attached the certified copy of the certificate of incorporation of the claimant showing that the claimant as “Alphacyn Nigeria Limited” is an incorporated company with RC 769813 as its incorporation number. I am satisfied that this settles the point raised by the 1st defendant as to the status of the claimant. I hold that the claimant is validly registered as an incorporated entity by the Corporate Affairs Commission under the Companies and Allied Matters Act. As such, it has juristic personality to sue and be sued. The instant suit is accordingly valid and competent. I so hold.

63.   The second issue to be resolved is whether the claimant disclosed a cause of action against the 2nd defendant. By Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47, “a claim is circumscribed by the reliefs claimed”. In reliefs (3) and (4), reproduced earlier, the claimant seeks a declaration having to

appoint the 2nd defendant to take the place of the claimant in the management of the facility in issue is unlawful, and an order that the facility management agreement between the 1st and the 2nd defendants is invalid. Now, it is desirable that this Court should not make these orders without hearing from the 2nd defendant. At least the 2nd defendant must be given the right to say that the agreement between it and the 1st defendant is not unlawful, and so is valid. This is the sense in which the 2nd defendant was made a party in this suit. I am thus satisfied that a reasonable cause of action has been disclosed against the 2nd defendant. And so making it a party in this suit is desirable and so valid. The 2nd defendant was thus appropriately made a party in this suit by the claimant. I so rule.

64.  The third issue is common to both defendants. They both argued that the jurisdiction of this Court is restricted to only contracts of service, not for service. That in relation to the 1st defendant, the facility management contract entered into by the claimant and the 1st defendant is one wherein the claimant is an independent contractor. They both relied on section 7 of the NIC Act 2006 and section 254C(1) of the 1999 Constitution in arguing their individual stance. The claimant has no problem with its status as that of an independent contractor. Its argument is that the jurisdiction of this Court relates to “labour”, as distinct from employment; and that the ordinary dictionary meaning of “labour” is one that encompasses work as it relates to both contracts of service and contracts for service. The claimant urged this Court not to give its jurisdiction a restrictive construction in excluding jurisdiction over contracts for service.

65.  I start off with the well known principle that while a court can expound (elaborate/expatiate) on its jurisdiction, it cannot expand it. See Tumsa & ors v. Jibo & ors [2023] LPELR-59964(CA) and Society Bic S.A. & ors v. Charzin Industries Ltd [2014] LPELR-22256(SC). The Third Alteration Act 2010 came with it the necessity to determine the extent of the jurisdiction of this Court. And quite a number of cases were thrown up on the issue. Of course, the question whether this Court’s jurisdiction is over only contracts of service or it included contracts for service variously came up. And I must state that in the main, the generally held view by this Court was that this Court’s jurisdiction was only over contracts of service, not over contracts for service. See, for instance, Mr. Abdul Fatai Yahaya v. Huilanje Mineral Resources Nigeria Limited & anor unreported Suit No. NICN/LA/12/2013, the ruling of which was delivered on 4 June 2014 and Mr Henry Adoh v. EMC Communications Infrastructure Limited [2015] 55 NLLR (Pt. 189) 546 NIC.

66.   Hon. Justice Anuwe, J, then of the Owerri Division of this Court, had to make a case stated on the issue to the Court of Appeal in Engr. Jude Ononiwu (Trading under the name of Judeson Chemical and Engineering Co. Ltd) v. National Directorate of Employment & anor unreported Appeal No. CA/OW/32/2015, the ruling of which was delivered on 22 May 2015. The question referred to the Court of Appeal was whether it was this Court or the Federal High Court that had jurisdiction over the dispute in issue. The Court of Appeal held that the suit arose from a simple contract between the claimant and the 1st defendant wherein the claimant rendered training services to the 1st defendant by training 2,204 trainees for the 1st defendant between 1996 and

2000. Accordingly, that “the relationship between the parties is contractual. It is a contract for service as opposed to contract of service which is employment issue”.

67.    The Court of Appeal proceeded to reproduce the constitutional provisions that donate jurisdiction to this Court, the Federal High and States High Court; and then held thus:

A careful perusal of Section 254(C) 1 (a - m) and 251 (a - s) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) set out above would reveal that the claim of the Claimant is not related to the sections of the Constitution set out above because the disputes grounded on simple contracts are not among the jurisdiction conferred on both the National Industrial Court of Nigeria and the Federal High Court.

68.   Hon Justice Bada, JCA, who read the leading judgement, then ruled thus, on the basis of section 272 of the 1999 Constitution:

Consequent upon the foregoing I am of the firm, view that it is the State High Court that has jurisdiction over the claims of the claimant as set out earlier in this Ruling.

69.    His Lordship relied on Onuorah v. Kaduna Refining and Petrochemical Co. Ltd [2005] LPELR-2707(SC) and Integrated Timber & Plywood Products Ltd v. Union Bank of Nigeria Plc [2006] 5 SCNJ 289, where the Supreme Court held that it is the High Court of a State that has jurisdiction to hear the matter of simple contractual relationship between the parties. His Lordship concluded by holding that neither this Court nor the Federal High Court had jurisdiction over the matter. That “the court with jurisdiction, considering the facts of the case, is the State High Court”. The case was then returned to this Court for appropriate action. I must point out here that the two Supreme Court cases relied upon by the Court of Appeal were pre- Third Alteration cases and the Court of Appeal in Nasarawa State Specialist Hospital Management Board & ors v. Mohammed [2018] LPELR-44551(CA) cautions on the application of older case law authorities, especially those that pre-date the Third Alteration. And so on the Supreme Court case of Osoh v. Unity Bank Plc [2013] 9 NWLR (Pt. 1358) 1, this is what the Court of Appeal said:

Osoh v. Unity Bank Plc supra, which the lower Court relied on is inapplicable to the instant matter as it was decided on the basis of the Trade Dispute Act and the 1979 Constitution which did not give jurisdiction on matters relating to employment to the National Industrial Court. The Supreme Court was not called upon to consider sections 6(1)(5)(cc) and 254C(1)(a) of the 1999 Constitution of Nigeria.

70.    The point is that when Onuorah and Integrated Timber & Plywood Products Ltd were decided by the Supreme Court, there was no Third Alteration to the 1999 Constitution, under which this Court was given an expansive (and expressive) jurisdiction.

71.  I am not unmindful of Denca Services Ltd v. Mr Nnamdi Azunna [2018] LPELR-46043(CA); [2019] 16 ACELR 137 at 149 - 150, which decision appears to lay down that the NICN has jurisdiction over matters in section 254C(1) of the 1999 Constitution only when there is an

employment relationship existing between the disputing parties. In the words of the Court of Appeal:

I iterate that unless there is an employment relationship between the parties as the linchpin on which the action is founded, the cause of action will not be cognizable under the exclusive jurisdiction conferred on the lower court under Section 254C(1) of the 1999 Constitution as amended.

72.  This statement, taken out of context, can spell doom to the civil jurisdiction of this Court. It must be understood within the context of the case itself i.e. whether vicarious liability was established in order to compensate the respondent. Taking the statement of the Court of Appeal as just quoted literally would mean re-writing the civil jurisdiction of the NICN under section 7 of the NIC Act 2006 and section 254C(1) of the 1999 Constitution. To take just an example of the point I seek to make. The NICN has jurisdiction over strikes; and strikes come in different forms. Secondary or sympathy strikes, for instance, are strikes undertaken by workers who have no employment relationship with the employer against whom the strike is held. It cannot thus be, on the basis of Denca, that it be read that the Court of Appeal intended that this Court would have no jurisdiction over secondary strikes since there would be no employment relationship between the secondary strikers and the employer against whom the strike is targeted.

73.  Two other contrasting Court of Appeal decisions on the jurisdiction of this Court may also be considered here. They are: Nwagbo & ors v. National Intelligence Agency [2018] LPELR-46201(CA), and Ministry of Local Government & Chieftaincy Affairs, Akwa Ibom State & anor v. Udoh & ors [2019] LPELR-47004(CA). In Nwagbo & ors v. National Intelligence Agency, His Lordship Mustapha, JCA held that the NICN has jurisdiction in complaints of non- payment of death benefits of a deceased employee under section 254C(1)(k) of the 1999 Constitution; and that once a demand for the death benefit was made, a dispute thereby arose, which dispute inures despite that the employer/employee relationship had even ceased.

74.  However, in Ministry of Local Government & Chieftaincy Affairs, Akwa Ibom State & anor v. Udoh & ors, His Lordship Owoade, JCA held that claims of payment of acknowledged arrears of allowances under section 254C(1)(k) of the 1999 Constitution are claims for debts over which the State High Court, not the NICN, has jurisdiction. His Lordship rationalised this decision on the ground that since there was no dispute as to the quantum of the claims, there was no dispute and so section 254C(1)(k) of the 1999 Constitution cannot be brought to play. To His Lordship, the jurisdiction of the NICN is accordingly ousted since the respondents’ claim is one for acknowledged indebtedness of unclaimed payment of arrears of allowances. This decision tallies with the simply contract argument made by the Court of Appeal in Engr. Jude Ononiwu (Trading under the name of Judeson Chemical and Engineering Co. Ltd) v. National Directorate of Employment & anor.

75.   The difficulty, however, is: section 254C(1)(k) talks of the NICN having jurisdiction over civil causes and matters “relating to or connected with disputes arising from payment or non- payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement

of any employee, worker, political or public office holder, a judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto”. And so a simply question: assuming even that there is no dispute as to the quantum of the monetary claim, is the very fact of refusal to pay not itself a dispute over its payment or non-payment to warrant the NICN having jurisdiction over it? The Court of Appeal did not consider this question.

76.  And so cases like Ozafe Nigeria Limited v. Access Bank of Nigeria Plc unreported Suit No. NICN/LA/179/2014, the ruling of which was delivered on 16 March 2016 and Mr Lawrence Igwegbe v. Standard Alliance Life Assurance Limited unreported Suit No. NICN/LA/465/2013, the judgment of which was delivered on 11 July 2017, which came up after Engr. Jude Ononiwu (Trading under the name of Judeson Chemical and Engineering Co. Ltd) v. National Directorate of Employment & anor (supra), continued to hold that this Court’s jurisdiction is over contracts of service, not contracts for service.

77.   Now, we are accustomed to, as most legal systems do, with the distinction between work under an employment contract and self-employment. This is the orthodoxy in the world of work, where work is structured on the binary model of subordinate employment and self-employment with the basic distinguishing factor being that while the protective stance of labour law applies to subordinate work, self-employment (due essentially to the false belief that contracting parties are of equal bargaining power) is generally left to the dictates of contracting parties to determine the allocation of risks in the relationship. This binary model, where the ‘employee’ is often an individual (a natural person) is what has been all this while taken as the determinant of the jurisdiction of this Court (the NICN) — hence the holding that this Court has jurisdiction only over subordinate employment (contract of service), but not over self-employment (contract for service).

78.   It is escaping the courts that in the quest to have a flexible labour market, employers have devised new forms of work just so that the protection of labour law is avoided. Here, three strategies have been used to disguise the relationship from being considered as an employment relationship:

(a)   The contract of engagement does not see the employee as an employee. Instead, it sees him/her as self-employed, a freelance, etc.

(b)   The contract of engagement does not see the employee as an employee. Instead, it sees him/her as a sub-contractor or an outsourced worker.

(c)    The contract of engagement actually sees the employee as an employee, but with limited rights, as where the employee is a part-time worker, a temporary worker, an on- call worker, a zero-hour worker, etc.

79.    The International Labour Organisation (ILO), for instance, has it here that a triangular employment relationship is a disguised or objectively ambiguous employment relationship, which is meant to either mask the identity of the employer (where the person designated as an employer is an intermediary with the intention of releasing the real employer from any involvement in the employment relationship and above all from any responsibility to the

workers) or mask the form in which the relationship is established (as where the nature of the employment relationship is intentionally misrepresented so as to deny certain rights and benefits to dependent workers). Our Court of Appeal noted this in passing in Luck Guard Limited v. Mr Felix Adariku & ors [2022] LPELR-59331(CA) when it cited “ILO The Scope of the Employment Relationship (ILO Report V) International Labour Conference 91st Session Geneva 2003 @ pg. 38”. The Court of Appeal did not, however, consider the ILO injunction for courts to give due priority to the primacy of facts and look to the substance, not the form, of the relationship or what the parties chose to call it.

80.    Elsewhere, courts are more particular in looking at the substance, not the form, of the relationship. His Lordship Ogakwu, JCA in Sahara Energy Resources Ltd v. Mrs Olawunmi Oyebola [2020] LPELR-51806(CA) also enjoined this in line with the United Kingdom (UK) Court of Appeal decision in Uber B.V. (UBV) & ors v. Yaseen Aslam & ors [2018] EWCA Civ 2748 (decided on 19 December 2018). And so when the question whether Uber drivers were workers (and so in a contract of service) or independent contractors (and so in a contract for service) became a global question, a Dutch court held that Uber drivers were employees. See https://www .lexology .com/commentary/employment-immigration/ 5 2 d f 5 3 a f - 8 1 e 6 - 4 1 9 a - 8 3 5 a - 1 5 d 0 1 a 0 a b 1 6 7 ? utm_source=ILO+Newsletter&utm_medium=email&utm_content=Newsletter+2021-10-13&utm

_campaign=Employment+&+Immigration+Newsletter as accessed on 19 July 2023.

81.   In the UK, the UK Court of Appeal dealt with the question as fact specific in Uber B.V. (UBV) & ors v. Yaseen Aslam & ors [2018] EWCA Civ 2748 (decided on 19 December 2018). In other words, that not all cases would be decided alike. On appeal to the UK Supreme Court, the UK Supreme Court in same Uber BV & ors v. Aslam & ors [2021] UKSC 5 treated Uber drivers as workers (and so in a contract of service) given the level of control of Uber over its drivers, and then unanimously held that Uber must pay its drivers the national living wage, and at least 28 days paid holidays, from the time that drivers log onto the Uber app, and are willing and able to work. The Supreme Court, and all courts below (Court of Appeal, Employment Appeal Tribunal, and Employment Tribunal), left open whether the drivers are also employees — the UK makes a distinction between workers and employees — (and entitled further to unfair dismissal, National Insurance contributions, and employer arrangement of income tax) but indicated that the criteria for employment status was fulfilled, given Uber's control over its drivers.

82.    Our Supreme Court as far back as in 2008 in Shena Security Ltd v. Afropak Ltd [2008] LPELR-3052(SC); [2008] 18 NWLR (Pt. 1118) 77 SC; [2008] 4 – 5 SC (Pt. II) 117 was faced with the question whether a contract to supply security guards was a contract of service. The Supreme Court held thus: “…although the contract between the appellant and the respondent was not one reduced into a formal one i.e. by writing, signing and sealing, it appears to me to be a contract of service/employment. I easily find support in the pleadings and evidence of the parties”. Paragraph 3 of the amended statement of claim in the case provided thus:

By an oral agreement between the Plaintiff and the Defendant, the plaintiff was engaged by the Defendant to supply security guards at the Defendant's factory at Sango-Otta, In addition to the security guards engaged by the Defendant.

Relying on the pleadings, the Supreme Court held that “…the contract entered by the parties was that of service/employment”.

83.    It needs to be pointed out here, and very strongly indeed, the said contract of service/ employment in Shena Security Ltd v. Afropak Ltd was one between two corporate entities. I indicated earlier that the notion of an employment relationship conjures up one where the employee is an individual (a natural person). Our imagination was never that in an employment relationship both parties would be corporate entities. So, given that Shena Security Ltd v. Afropak Ltd [2008] LPELR-3052(SC); [2008] 18 NWLR (Pt. 1118) 77 SC; [2008] 4 – 5 SC (Pt. II) 117 held that the contract between two corporate bodies to supply security guards is a contract of service, has the Supreme Court not shown us the way forward, where it will no longer matter that the contract is one for service, not necessarily of service especially if we factor in the new forms of work that are sprouting daily?

84.   I acknowledge that in Ozafe Nigeria Limited v. Access Bank of Nigeria Plc (supra), this Court not just made the distinction between contract of service and contact for service but explained the distinction in terms of application of Engr. Jude Ononiwu (Trading under the name of Judeson Chemical and Engineering Co. Ltd) v. National Directorate of Employment & anor and Shena Security Co. Ltd v. Afropak (Nig.) Ltd & 2 ors. See also the recent decision of the NIC in Oladapo Olatunji & anor v. Uber Technologies System Nigeria Limited & 2 ors unreported Suit No. NICN/LA/546/2017, the judgment of which was delivered on 4 December 2018, where Shena Security Ltd v. Afropak Ltd also featured a good deal.

85.   But in all this, the specific import of the phrase “any labour” as used under section 254C(1)

(a) of the 1999 Constitution was not specifically considered. It is this fuller consideration that the claimant urged this Court to particularly do when it answered the objections of the defendants. To the claimant, labour is used differently from employment in section 254C(1) of the 1999 Constitution and so should be interpreted separately when considering the jurisdiction of this Court. So, is section 254C(1) of the 1999 Constitution, in giving jurisdiction to this Court over ALL and ANY labour, employment and workplace issue(s), broad enough to cover contracts for service thus rendering cases like Engr. Jude Ononiwu (Trading under the name of Judeson Chemical and Engineering Co. Ltd) v. National Directorate of Employment & anor, Mr. Abdul Fatai Yahaya v. Huilanje Mineral Resources Nigeria Limited & anor, Mr Henry Adoh v. EMC Communications Infrastructure Limited, Ozafe Nigeria Limited v. Access Bank of Nigeria Plc and Mr Lawrence Igwegbe v. Standard Alliance Life Assurance Limited, now distinguishable?

86.  Apart form merely reproducing section 254C(1)(a) - (m) of the 1999 Constitution as to the jurisdiction of this Court and making the general conclusion as quoted earlier, no where in Engr. Jude Ononiwu (Trading under the name of Judeson Chemical and Engineering Co. Ltd) v. National Directorate of Employment & anor (supra) did the Court of Appeal specifically

consider the use of the words ‘any labour’ as used in section 254C(1)(a) of the Constitution. Nor did it consider the impact of the Labour Act to the jurisdiction of this Court. Even the Supreme Court decision in Shena Security Ltd v. Afropak Ltd was not considered by the Court of Appeal. And also not considered is the impact of this Court’s power and jurisdiction over labour conventions, treaties, etc ratified by Nigeria, international labour standards and the jurisprudence that follow them.

87.   Section 254C(1) aside from donating jurisdiction to this Court in civil causes and matters relating to or connected with “any labour…and matters incidental thereto or connected therewith”, it also donated jurisdiction in civil causes and matters “relating to, connected with or arising from…Labour Act”. The Labour Act is a labour standard setting Act. It holds the minimum threshold of labour standards that must be obtainable in the world of work. And so by section 91(1) of the Labour Act, the words ‘employer’, ‘recruiting’ and ‘worker’ are defined thus:

“employer” means any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first-mentioned person and the personal representative of a deceased employer (emphasis is this Court’s);

“recruiting” includes all operations undertaken with the object of obtaining or supplying the labour of persons who do not spontaneously offer their services at the place of employment, at a public emigration or employment office or at an office conducted by an employer's association and supervised by the Minister;

“worker” 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…

88.  A closer look at these definitions will reveal that they all relate to not just contracts of service but also extend to contracts for service. I must point out here that the Court of Appeal in considering the jurisdiction of this Court in section 254C(1)(b) of the 1999 Constitution in The Vessel MT Sam Purpose (Ex MT. Tapti) & anor v. Bains & ors [2021] LPELR-56460(CA) held thus:

The mention of the Labour Act does not however whittle down the exclusive jurisdiction of the National Industrial Court. Rather, any reference to the Labour Act and other Acts operates to include matters arising out of the Labour Act and other relevant National Laws within the jurisdiction of the National Industrial Court. The provisions of the Constitution cannot be limited or restricted by an Act of the National Assembly…

89.   This Court, in 2017, was called upon in Total Support Securities Limited & anor v. Sabaco Limited & 3 ors unreported Suit No. NICN/LA/405/2015, the ruling of which was delivered on 5 July 2017, to determine whether it had jurisdiction, amongst other claims, over the claim for “The sum of N82,161,000.00 (Eighty-Two Million, One Hundred and Sixty-One Thousand Naira) being N32,161,000.00 outstanding indebtedness accruing from the defendants to

claimants for provision of security services rendered by the claimants under the contract of service entered into by defendants with the claimants by virtue of which the claimants were engaged as security agents under and by virtue of the contract constituted by the letter of appointment dated 11th April, 2000 to that service, which the defendants had failed, refused and or neglected to pay despite repeated demands for such payments…” This Court in assuming jurisdiction reasoned and held thus:

The Supreme Court in Shena Security Co. Ltd v. Afropak (Nig.) Ltd & 2 ors [2008] 18 NWLR (Pt. 1118) 77 SC; [2008] 4 – 5 SC (Pt. II) 117 held that a contract between two corporate entities to supply security guards is a contract of service/employment as between the corporate entities. Additionally, Part II of the Labour Act 2004 (sections 23 –

48) deals with “recruiting”, a term defined under section 91(1) of the Labour Act 2004 to include “all operations undertaken with the object of obtaining or supplying the labour of persons who do not spontaneously offer their services at the place of employment, at a public emigration or employment office or at an office conducted by an employer’s association and supervised by the Minister” (emphasis is the Court’s). For the Labour Act to regulate recruiting means only one thing: that recruiting, even when it relates to supply of labour (or security guards as was the case in Shena), is an employment issue. See generally Ozafe Nigeria Limited v. Access Bank of Nigeria Plc unreported Suit No. NICN/LA/179/2014 the ruling of which was delivered on 16th March 2016. It is in this sense that this Court is assuming jurisdiction over only the first limb of relief (1). Relief

(2) is an ancillary relief to the first limb of relief (1), hence the assumption of jurisdiction by this Court.

90.   Saddled with a similar question i.e. whether this Court has jurisdiction over a contract “to work for the Nigeria Police Force in training police dogs and for his services”, Hon. Justice Anuwe J in Mr Stacy Johnson v. IGP & anor unreported Suit No. NICN/ABJ/305/2019, the ruling of which was delivered on 14 May 2020, assumed jurisdiction relying on the definition of ‘worker’ under the Labour Act, the Trade Unions Act and the Trade Disputes Act holding thus:

Going by the definition of who is a worker in these statutes, it is clear that a person who enters into a contract with an employer to execute any work or labour is a worker. Where there is a dispute as to such a worker’s pay or wages or with regards to the execution of the work or labour, this court will have jurisdiction to entertain the case.

91.   In Mr Amadi Okaka Lucky Erusi v. Henry Spencer Nigeria Ltd & anor unreported Suit No. NICN/PHC/135/2018, the judgment of which was delivered on 30 October 2020, the jurisdictional question was whether this Court has jurisdiction to adjudicate over a debt owed the claimant arising from simple contract, the defendants arguing that the claimant was a casual worker and at the same time a contractor of the 1st defendant, as he was never employed as a full worker. In assuming jurisdiction Hon. Justice Ogbuanya J held thus:

…this court has been imbued with jurisdiction over any matter arising from, related to or connected with employment, courtesy of the provisions of S.254C(1) 1999 Constitution… I dare say that this provision has over time become a one stop-shop for gauging the amplification of the new jurisdictional mandate of this court in its one-

subject matter adjudicatory stock - employment and labour related, connected and/or arising matters! …I take the firm view that the entire claims arising from the dispute between the parties herein fall squarely within the ample jurisdiction of this court…

92.  And in Fedison Manpower Supply Ltd v. Niger Blossom Drilling Nigeria Ltd unreported Suit No. NICN/YEN/444/2016, the judgment of which was delivered on 29 March 2022, as an oil and gas labour contracting and recruitment company, on 30 December 2011, the clamant entered into an agreement with the defendant to supply qualified and experienced personnel to the defendant to enable the defendant operate on a 750HP Drilling/Workover Rig. The defendant had argued that this agreement is in the nature of a simple contract and not ‘collective agreement’; and being a simple contract, a breach of it cannot be adjudicated in this Court since this Court is not conferred with jurisdiction to entertain matters bordering on simple contract. In once again assuming jurisdiction, Hon, Justice Ogbuanya J first found that the contract in issue deals with supply of human labour, and so is not a ‘simple contract’; and then held that because the dispute involved labour-related contracting parties, it falls within the jurisdictional scope and competence of this Court.

93.    So, as can be seen, there is this gradual trend by this Court to properly reappraise its jurisdiction. This is the sense in which the call by the claimant to consider more deeply the meaning of the word ‘labour’ as used in section 254C(1)(a) of the 1999 Constitution is made. In fact, it is not just the word ‘labour that calls for consideration; what appropriately calls for consideration is the phrase “any labour”.

94.  Section 254C(1)(a) and (b) of the 1999 Constitution provides as follows:

(1)   Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters -

(a)             relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

(b)         relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees' Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws.

95.    In the interpretation of the Constitution and other statutes, courts are enjoined to give a holistic interpretation of the legislation in question. See Kassim v. Adesemowo [2021] LPELR-55333(SC), Saraki v. FRN [2016] LPELR-40013(SC). His Lordship Agim, JSC in his concurring judgment in FRN v. Nganjiwa [2022] LPELR-58066(SC), was quite forceful when he held this regarding the interpretation of the Constitution:

Therefore it must be interpreted in line with principles suitable to its spirit and character and not necessarily according to the general rules of interpretation of statutes and documents. One of the principles suitable to its sui generis nature is that it must be given a benevolent, broad, liberal and purposive interpretation and a narrow, strict, technical and legalistic interpretation must be avoided to promote its underlying policy and purpose.

96.   The claimant had earlier referred to the Chambers 21st Century Dictionary, which at page 758 defines ‘labour’ as “strenuous and prolonged work, especially of the physical kind that is done for payment”; and the Black's Law Dictionary 11th Edition, which at page 1045 defines ‘labour’ to mean “work of any type including mental exertion”. These definitions of ‘labour’ without the qualifying word, ‘any’, are broad enough to include work within the structure of the contract for service conceptualisation. So when the qualifying word, ‘any’, is added to the fray, what do we have?

97.  As a determiner, the New Oxford American Dictionary defines the word ‘any’ in two senses , namely:

1     [usually with negative or in questions] used to refer to one or some of a thing or number of things, no matter how much or how many: I don't have any choice | do you have any tips to pass on? | little, if any, information exists concerning them.

2         used to express a lack of restriction in selecting one of a specified class: these constellations are visible at any hour of the night | it doesn't make any difference | any fool knows that.

•  used to emphasize that a particular example of a specified class is being referred to: you can see images, and not just any images | any job will do, to begin with.

98.   It is in the second sense, used to express a lack of restriction in selecting one of a specified class, that “any labour”, used differently from “employment”, must be understood to have been used in section 254C(1)(a) of the 1999 Constitution. I must also state that even in section 254C(1)(b) of the 1999 Constitution, “labour” is used differently from “employment” when it talked of “any other Act of Law”. So, howsoever we look at it, “any labour” has the effect of encompassing both contracts of service and contracts for service. I so rule.

99.   In the instant case, this Court has been called upon to interpret the Facility Management Agreement between the 1st defendant and the claimant (Exhibit A2 attached to the affidavit in support of the originating summons). The agreement appointed the claimant as Facility Manager, which in clause 2.0 of the agreement, the 1st defendant appointed the claimant as its “lawful agent with full authority to do any and all lawful things necessary for the fulfillment of this Agreement, including the following”: management of environmental sanitation, management of electrical facilities, Helpdesk/Information Centre, management of water installations, employment and management of labour, communication, securities services, enforcement of estate rules and maintenance of public utilities. For this, the claimant was by clause 3.0 to be paid management fee pegged at 15% of the monthly approved expenditure. This monthly