IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

           HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A OJI

 

DATE:  WEDNESDAY 3^RD JULY 2024                  

SUIT NO: NICN/LA/416/2020

 

BETWEEN

BUKONLA ABIMBOLA                                                                  CLAIMANT

(Trading under the name and style of Bukky Joy-Bright Ventures)

AND

NIGERIAN NATIONAL PETROLEUM CORPORATION     1^ST DEFENDANT

MUSA A. GARBA                                                                                    2^ND DEFENDANT

 

Representation:

J N Okoronkwo for the Claimant

Olagoke Odubunmi for the Defendant

 

JUDGMENT

Introduction and Claims:

 

1.   The Claimant commenced this suit by a Complaint and Statement of Facts dated 16^th October 2020. The Claimant seeks the following reliefs:

a)     AN ORDER setting aside the purported termination of the employment contract of the Claimant with the 1^st Defendant for being unlawful, breach of terms and conditions of employment contract, null, void and of no effect whatsoever.

b)    AN ORDER restoring the Claimant back to the state of affairs before with the Claimant’s full rights, benefits and privileges before the unlawful termination of the Claimant’s employment by the 2^nd Defendant.

c)     AN ORDER restoring the converted staff of the Claimant by the 2^nd Claimant back to the Claimant and that the conversion of the Claimant’s staff by the 2^nd Defendant is unlawful, null and void.

d)    AN ORDER restraining the 2^nd Defendant or any other person or persons working for or in the employment of the 1^st Defendant from further practicing any form of discrimination against the Claimant.

e)     AN ORDER for the immediate payment of the already accrued and unpaid salaries of the Claimant from the Month July, 2019 till when judgment will be delivered in this case in the sum of Three Hundred and Five Thousand (305,000.00) Naira per Month which is the monthly salary of the Claimant as contained in the employment agreement.

f)      AN ORDER for the immediate payment of the Claimant’s outstanding salaries, benefits and all other entitlements due to the Claimant from 1^st of July, 2019 till when the Defendants comply with the Judgment in this case.

g)     AN ORDER awarding 21% interest per month on the Judgment sum from the date judgment is delivered until final liquidation of same.

h)    AN ORDER awarding general damages for breach of contract in the sum of Ten Million Naira (N10,000,000.00) Naira Only against the Defendants.

i)      Cost of the suit.

2.  The Defendants filed their Statement of Defence dated the 18^th of May 2022 as well as a Notice of Preliminary objection dated same 18^th May 2022.  Defendant’s Notice of Preliminary objection dated 18^th of May 2022 was moved on the 17^th of November 2022, and the Court, with consent of parties, reserved Ruling on the NPO to be taken along with judgment of the substantive suit.  Trial commenced on the same 17^th November, 2022.  The Claimant opened her case, testified (adopted her witness statement on oath dated 16^th of October 2020 and additional witness Statement on oath dated 26^th of September 2022 as oral testimony) and tendered 10 documents in evidence as Exhibits C1 - C10 respectively, and was cross-examined on the 7^th of March 2023.  The exhibits tendered by the Claimant are as follows:

1)    Letters for Provision of Cleaning/Gardening Services for 2004 and 2005, and various upward review of rates, renewal of contracts for years 2007, 2008, 2009, 2010, 2011 and 3013 – exhibit C1A and C1B.

2)    Service Contract Agreement executed in 2014 between Defendant and Bukky Joy-Bright Ventures – exhibit C2

3)    Request for upward review of rates by the Claimant dated 24/10/16 – exhibit C3

4)    Service Contract Agreement executed in 2017 between Defendant and Bukky Joy-Bright Venture – exhibit C4

5)    Renewal of contract for year dated 27/6/2019  - exhibit C5

6)    Claimant’s Solicitors letter dated 20/1/2020 – exhibit C6

7)    Termination of Service Contract dated 6^th January 2020 – exhibit C7

8)    Pre-action Notice – Exhibit C8

9)    Interview forms of Staffs of Bukky Joy-Bright Ventures – exhibit C9

10)                        Claimant’s statement of account – exhibit C10.

3.  After the Claimant closed her case, the Defendants opened their case on the 28^th of November 2023 by calling their sole witness, Musa A. Garba, (the 2^nd Defendant and Head Operations Liason Officer of the 1^st Defendant), who adopted his witness statement on oath dated the 19^th of May 2022 as his oral testimony, and tendered 13 documents which were admitted as Exhibits D1-D13; namely:

1.      Provision of Cleaning/Gardening Services letter dated 31^st March 2004- Exhibit D1

2.      Upward review of rates letter dated 30^th December 2004- Exhibit D2

3.      Provision of cleaning/Gardening Services Letter dated 12^th December 2005 – Exhibit D3

4.      Review of Salary rates letter dated 23^rd August 2006 – Exhibit D4

5.      Conditional renewal of contract letter. Re: Request for Renewal  of contract dated 27^th February 2007 – Exhibit D5

6.      Renewal of contract for cleaning/Gardening and waste disposal services letter dated 29^th June, 2007 – Exhibit D6

7.      Renewal of contract for cleaning/Gardening and increase in amount of waste disposal services letter dated 1^st January, 2008 -Exhibit D7

8.      Renewal of contract for cleaning/Gardening and waste disposal services letter dated 2^nd January 2009 -Exhibit D8

9.      Renewal of contract for cleaning/Gardening and waste disposal services letter dated 1^st January 2010. -Exhibit D9

10. Renewal of contract for cleaning/Gardening and waste disposal services letter dated 1^st January 2011 – Exhibit D10

11. Renewal of contract for cleaning/Gardening and waste disposal services letter dated 6^th August 2013 -Exhibit D11

12. Termination of Service Contract letter dated 6^th January, 2020.- Exhibit D12

13. Certified True Copies of schedule of payment and payment advice from the 1^st Defendant to Bukky Joy Bright Ventures – Exhibit D13.

THE CASE OF THE CLAIMANT

4.  The case of the Claimant is that she entered into an employment service contract agreement with the 1^st Defendant for cleaning, gardening and waste disposal of the Defendant’s office and environment in Lagos.  That the 1^st Defendant pays the Claimant salary monthly. The Claimant performed her duty diligently and without blemish.  At no point was the Claimant found wanting in the discharge of her duties.  Due to her dedication, the Claimant’s salary was increased by the 1^st Defendant.  Sometime in 2014, and 2017, the Claimant’s salary was reviewed upwards.  The 1^st Defendant is indebted to the Claimant in the sum of N3,660,000.00 being the Claimant’s earned but unpaid and outstanding salary for twelve months from July 2019 till June 2020.  Upon the refusal of the 1^st Defendant to pay the outstanding salaries, the Claimant engaged the services of a Solicitor who wrote to the 1^st Defendant, demanding the payment of the said sum.  Despite the refusal of the 1^st Defendant to pay the Claimant’s salaries, the Claimant continued to perform her duties in accordance with the contents of the agreement executed between the Claimant and the 1^st Defendant on the 30^th of January 2017.  The Claimant’s employment was renewed on 27^th June 2019.  The Claimant has employees working for her.  As a result of the refusal of the 1^st Defendant to pay the Claimant her salaries from July 2019 till date, the 2^nd Defendant has pitched the Claimant’s staff against the Claimant and as a result the Claimant’s staffs no longer take instructions from the Claimant on how to perform the Claimant’s services to the 1^st Defendant.  The Claimant’s case is that she was discriminated by the Defendants when the 2^nd Defendant told her that she is too old for the job and threatened to terminate her employment on the 23^rd of January 2020 when the Claimant visited the 2^nd Defendant’s office to draw the 2^nd Defendant’s attention to the need to settle the Claimant’s indebtedness and to also revert back the Claimant’s employees forcefully converted by the 2^nd Defendant.  The 2^nd Defendant threatened to deal with the Claimant if she ever asked to be paid her salaries.  The 2^nd Defendant took over the Claimant’s job and entire staff and in demonstration of same, the 2^nd Defendant personally signed a letter addressed to the Claimant wherein the 2^nd Defendant instructed the Claimant not to pay her employees’ salary for the month of January 2020.  The purported letter of termination of the Claimant’s employment is done in bad faith and also not in accordance with the terms and conditions of service.

THE CASE OF THE DEFENDANTS

5.  The 1st Defendant entered into a Service Contract Agreement with Bukky Joy-Bright Ventures (a business name venture owned by the Claimant) for the provision of clearing and gardening services.  The Service Contract Agreement entered into between the 1^st Defendant and Bukky joy- Bright Ventures is a yearly contract subject to annual renewal by the 1^st Defendant. The Service Contract was between the 1st Defendant and Bukky Joy-Bright Ventures, and not between the Defendant and the Claimant.  The agreement between the 1^st Defendant and Bukky Joy-Bright Ventures was for "a contract for service" and not "a contract of service", hence, Bukky Joy-Bright Ventures was never an employee of the 1st Defendant, and as such could not, and does not have an Employment. Contract with the 1^st Defendant.  The Managing Director of Bukky Joy-Bright Ventures (the Claimant) cannot by any stretch of imagination, rely on the Service Contract Agreement between the 1st Defendant and Bukky Joy-Bright Ventures, to claim/allege that she is an employee of the Defendant, when in fact no such contractual relationship exists between her company (Bukky Joy-Bright Ventures) and the 1st Defendant.  The Claimant was never at any time whatsoever an employee, staff or worker of the 1^st Defendant, neither did the 1st Defendant enter into any contract of employment with the Claimant, hence no employer/employee relationship exists between the Claimant and the 1^st Defendant.  Under the Service Contract, Bukky Joy-Bright Ventures was engaged as an Independent Contractor for the provision of cleaning, gardening and waste disposal services for the 1^st Defendant's Lagos office subject to renewal on yearly basis.  The 1st Defendant at different times during the course of the Service Contract it entered into with Bukky Joy-Bright Ventures reviewed the service charge(s) paid to Bukky Joy-Bright Ventures for the provision of clearing, gardening and waste disposal services rendered to the 1st Defendant and nothing more.  Since the Claimant was never at any time whatsoever an employee of the 1st Defendant as no employer/employee relationship exists between them, it was impossible for there to have been an upward review of the Claimant's salary when the Claimant does not draw any monthly salary from the 1st Defendant as its employee.  The 1st Defendant had continually renewed the yearly Contract of Service with Bukky joy-Bright Ventures from 2004 when same commenced until the end of 2019, when the 1^st Defendant decided not to renew the Contract of Service in year 2020, and communicated its decision not to renew same to the Claimant via a letter of termination of service contract dated the 6th of January, 2020.  Under the Service Contract, the 1st Defendant reserves the right not to renew the contract as well as a right to terminate same, and its letter of termination of  the service contract was in exercise of its right not to renew the service contract in 2020, when that of 2019 expired.    

 

6.  The 1st Defendant had paid Bukky joy-Bright Ventures all that is due it under the Service Contract when same expired in 2019.  The Defendants are not indebted to Bukky Joy-Bright Ventures or the Claimant in anyway, having discharged their financial obligation to Bukky Joy-Bright Ventures at the expiration of the contract in 2019, hence this suit discloses no cause of action whatsoever against the Defendants.  The 1st Defendant is  not indebted to the Claimant in the sum of N3, 660, 000. 00 (Three Million, Six Hundred and Sixty Thousand Naira) or any other sum.  The 1st Defendant has duly paid Bukky Joy-Bright Ventures/the Claimant the agreed service charges for the services rendered up to the date that the Service Contract Agreement, which was for fixed period, expired by effluxion of time and the 1st Defendant did not renew the contract for another 1-year term.  The 2^nd Defendant’s duty does not extend to employment of staff or negotiation of contracts with third parties on behalf of the 1st Defendant.  The 2^nd Defendant lacks the capacity or authority to employ anyone or influence the extension of contracts or execution of contracts on behalf of the 1st Defendant.  The 1st Defendant could not have been in a position to pay or refuse to pay salaries to the Claimant when it does not have an employee/employer relationship with her.  The 1^st Defendant at all material times during the contract period never owed Bukky Joy-Bright Ventures any service charge due to it after it had rendered its cleaning, gardening and waste disposal services.  The 2^nd Defendant did not at any time whatsoever threaten to terminate the Claimant's purported employment in any way or form as none exists in the first place.  The 2^nd Defendant did not at any time whatsoever inform the Claimant that she was too old for the services being rendered nor threaten to deal with the Claimant if she ever asked to be paid her service charges.  The 2^nd Defendant never at any time threatened to take over the Claimant's job or the services being rendered or to either forcefully or not convert the staff of the Claimant as his scope of duty, authority and power neither extend or cover the recruitment of staff or workers on behalf of the 1^st Defendant nor the conversion of staff or workers of independent contractors for the 1^st Defendant.  The 2^nd Defendant could not have threatened to deal with the Claimant in any form or manner as his scope of duty does not cover sanctioning erring staff or workers of the 1^st Defendant or third parties having independent contracts with the 1st Defendant.  The 2^nd Defendant did not at any time whatsoever serve the Claimant with any letter purporting to terminate the Claimant's employment with the 1^st Defendant as the Claimant was at no time whatsoever an employee of the 1^st Defendant.  The 1^st Defendant's letter of January 6, 2020 was a notification to the Claimant that the Service Contract Agreement had expired and that Bukky Joy-Bright Ventures' contract with the 1st Defendant was not renewed.  The 2^nd Defendant’s act in signing off on the letter of January 6, 2022, was him only acting within the scope of his duty as the Head of Operations of the 1^st Defendant and that the advice stated on the face of the letter was to bring to the notice of the Claimant that the 1^st Defendant will not in any way be liable or obligated to reimburse Bukky Joy-Bright Ventures beyond the date of termination (by effluxion of time) of the service contract.  The 1st Defendant never violated any term and condition of service as it never engaged the Claimant as its employee or worker.  The Service Contract agreement ran its full course and therefore terminated by effluxion of time.  The 1^st Defendant was under no obligation to retain the services of Bukky Joy-Bright Ventures after the expiration of the contract.  The 1st Defendant is not indebted in any manner to the Claimant whether in terms of salaries, outstanding or otherwise and the 1^st Defendant is not obligated to renew Bukky Joy-Bright Ventures’ contract upon its expiration by effluxion of time. The 1st Defendant could not have reinstated the Claimant as it at no time had any employee/employer relationship or any master/servant relationship with the Claimant. At all times material, Bukky Joy-Bright Ventures was an independent contractor of the 1^st Defendant who was engaged to provide cleaning, gardening and waste disposal services only while the Claimant was its Managing Director, hence the Claimant is not an employee of the 1^st Defendant.  The 2^nd Defendant is an agent of a disclosed principal (the 1st Defendant) and had acted at all material times within the scope of his authority.

 

 

 

SUBMISSIONS ON BEHALF OF THE DEFENDANTS

7.  On behalf of the Defendants, a lone issue was distilled for determination by the Court; “Whether or not the Claimant has made out a case for herself, entitling her to the reliefs sought?  Arguing this lone issue, the Defendants submit that the Claimant has NOT proved her case to entitle her to the reliefs sought. The Defendants contend that the Claimant failed to place sufficient materials before this Court to entitle her to the reliefs sought, and that her case is liable to be dismissed.  In evaluating and benchmarking reliefs sought against evidence furnished to the Court, with respect to Reliefs Nos. (a)&(b) sought by the Claimant, the Defendants submit that the Claimant failed to provide the Court with any contract of employment issued to her by the 1^st Defendant, or evidence of monthly pay slips with which she draws monthly salary from the Defendant as its employee, neither did she provide any staff ID card issued to her by the 1^st Defendant to show that she is its employee. Rather, Exhibits C1, C2, C4, C5 tendered by the Claimant are independent contracts for provision of cleaning/gardening services and renewal of service contract between the 1^st Defendant and Bukky-Joy-Bright Ventures. Also Exhibit C7 (termination letter dated 6^th January 2020 was addressed to the Managing Director of Bukky-Joy-Bright Ventures. Equally Exhibit C3 (a letter dated 24^th of October 2016) from Bukky-Joy-Bright Ventures requesting for upward review of rates and addressed to the 1^st Defendant was on Bukky-Joy-Bright Ventures Letterhead paper, while the Claimant merely signed same as the Manager of Bukky-Joy-Bright Ventures.   With regards to   Relief No (c) sought by the Claimant, the Defendants further submit that the Claimant has not furnished any evidence before this Court to prove or show that her employees have been converted by the Defendants and that her mere allegation in pleadings without proof is insufficient to prove same. With respect to Relief No (d) sought by the Claimant, the Defendants submit that the Claimant, having failed to show that she is an employee of the 1^st Defendant, cannot allege any discrimination against her at the workplace because she is not an employee of the Defendant. Furthermore, the Defendants’ submit that DW’s evidence that he never at any time threatened the Claimant, nor abused her that she is too old was never impeached under cross-examination. The Defendant submits that the Claimant having therefore failed to prove her alleged claim of discrimination, the said relief sought is bound to fail. With respect to Reliefs Nos. (e) & (f) sought by the Claimant, the Defendants submit that the Claimant having failed to prove that she is an employee of the 1^st Defendant, cannot make claim of accrued or outstanding salaries and entitlement under employment contract against the 1^st Defendant who is not her employer. Rather as an independent Contractor, Bukky-Joy-Bright ventures was awarded yearly contract for provision of services from 2004 until the end of 2019 when same was terminated. The Defendants submit that in view of Exhibit D13 (proof of payments) which were not contradicted nor opposed by the Claimant, the Claimant has failed to establish by evidence that the 1^st Defendant is indebted to Bukky-Joy-Bright Ventures in respect of the terminated service contract. On Relief No. (h) sought by the Claimant, the Defendants submit that this relief must fail for failure of the Claimant to prove that there is any employment contract between her and the 1^st Defendant. Equally, in respect of the termination of the service contract awarded to Bukky-Joy-Bright Ventures, the Claimant could not show any breach of contract. The Defendants argue that the Claimant has not shown how damages have occurred from the 1^st Defendant’s exercise of its lawful right to terminate the contract and that the Claimant did not plead nor provide particulars of the alleged losses arising from the 1^st Defendant's exercise of its contractual right to terminate the service contract. On Relief No. (g) sought by the Claimant, the Defendants submit that the Claimant having failed to prove that she is entitled to any of the monetary reliefs sought; the claim for interest thereon is therefore consequentially bound to fail as well.  On  Relief (i) sought by the Claimant; the Defendants submit that this relief must fail as the Claimant failed to prove that she is entitled to any of the monetary reliefs sought. The Defendants argue that relief (i) must fail as the Claimant did not plead nor allege any facts in her pleadings in support of same, neither did she furnish any evidence in this regard. The Claimant did not state anywhere in her pleadings or witness statement on oath the particulars of the expenses or costs, or evidence of payment of same.  Furthermore, that our Courts have consistently held that it is wrong and contrary to public policy to grant a party cost of litigation or solicitors fees. See SPDC v Okonedo (2007) ALL FWLR (Pt 368) 1104 at 1137-1138, Nwanji V Coastal Services Nig Ltd. (2004) 11 NWLR pt. 885, and Abdul v Ngeris Ltd (2015) 59 NLLR Pt. 205. 

 

SUBMISSIONS ON BEHALF OF THE CLAIMANT

8.  The Claimant raised a lone issue for determination; “whether the Claimant has established her case on the preponderance of evidence to entitle her to the reliefs sought?  In addressing this issue, the Claimant first affirmed that there is an employment relationship between her and the 1^st Defendant.  She referred to exhibit C1, particularly the letters dated 31^st March 2004, and 12^th December 2005 where she was awarded a contract of cleaning/gardening services, and was paid a specific amount monthly by the 1^st Defendant.  The Claimant referred to the case of Shena Security Company Ltd. v. Afropak Nigeria Ltd & Ors (2008) LPELR-3052(SC) as stating the factors that guide the Court where there is a dispute as to the kind of contract that exists between parties, and submits that proper application of the guiding factors in the case shows that the parties entered into a contract of employment.  The Claimant submits that the fact that the heading/nomenclature of ‘Service Contract Agreement’, does not ipso facto mean that the relationship is one of simple contract.  The Claimant also urged the Court to construe all the relevant documents together, to determine the actual relationship between the parties, and referred to the case of Babatope Akinyele & Anor v. ElijahOluwatayo Adewale & Ors (2015) LPELR-25718.  The Claimant also argued that though the contract is between Bukky Joy-Bright Ventures, that a business name is not distinct from its owners and that Bukky Joy-Bright Ventures is not a juristic person.  She argues that an action can be brought by or against such unincorporated entity by suing the alter ego trading under the name and style as in AHTV & Ors v. Swift Moh Travels and Tours Agents (Nig) Ltd & Anor (2022) LPELR-57633 (CA)

9.  The Claimant further submits that the Defendants were unable to disprove the allegation that her employment was unlawfully terminated. The Claimant argues that by exhibit C5, her contract was renewed from 1^st July, 2019 to June 2020 but by exhibit C7, the said employment was terminated in January 2020, 5 months before the determination of her subsisting employment.    The Claimant also submits that she has discharged all the onus placed on her to prove what she asserts, and is therefore entitled to all the reliefs she seeks in this suit.

COURT’S DECISION

10.  I have considered the processes filed in this suit, the evidence of the witnesses called by the parties, the exhibits tendered and the submissions of Counsel.  I find the following issues apt for determination:

i.          Whether this Court has jurisdiction to hear and determine this suit?  This determines the preliminary objection of the Defendants.

ii.       Whether the Claimant is entitled to the reliefs she seeks in this suit?

11.  Issue one derives from the preliminary objection filed by the Defendants on 18^th May 2022.  The Claimant filed a response urging the Court not to dismiss this action.  The motion was argued on 17^th November 2022 and the Ruling, by consent of the parties, was reserved to be taken together with this judgment.  The ground for the Defendants’ objection is that (1) this suit falls outside the jurisdiction of this Court as specified in section 254(C) of the CFRN 1999 (as amended) and section 7 of the NICA, and (2) the Claimant is not an employee, but rather an independent contractor to the 1^st Defendant. 

12.  This suit was initiated by the Claimant BUKOLA  ABIMBOLA (Trading under the name and style of Bukky Joy-Bright Ventures.  It is therefore obvious that Bukky Joy-Bright Ventures is not a legal person.  It is also obvious that Bukky Joy-Bright Ventures is the business name of the Claimant. This fact is clearly admitted by the Defendants as is apparent on their statement of defence and written addresses.  For instance, in paragraph 3 of their statement of defence, the Defendants state that “the Defendants admit paragraph 4 of the statement of facts only to the extent that the 1^st Defendant entered into a service contract agreement with Bukky Joy-Bright Ventures (a business name venture owned by the Claimant).  It is therefore safe to conclude that in all the correspondences between the Defendants and Bukky Joy-Bright Ventures, the Defendants knew they were contracting with the Claimant. The case of  Shena Security Co. Ltd v Afro Pak (Nig) Ltd & 2 others (2008) 18 NWLR (Pt. 1118) p. 82 is a good guide to determining whether the Claimant was the 1^st Defendant’s employee or not.  The Supreme Court held there as follows:

"I have read the evidence as contained in this case. I have no difficulty in coming to the following conclusion:  [i] The valid contract was that of employment. The court below held as follows:

 

"The law is settled that in action for wrongful termination of appointment, as in the instant case, the onus is on the plaintiff to prove, among others, the terms of the agreement allegedly breached. He is therefore required to place before the court the Terms of the Contract of employment, and to prove in what manner the said terms were breached by the employer."

 

Thus, the two courts below found the contract entered by the plaintiff and the defendant to be that of employment.  A contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. That is by the definition of the Labour Act (Cap. 198) LFN, 1990 which applies to workers, strictly defined to the exclusion of the management staff.

 

A worker is defined by the Labour Act as any person who has entered into or works under a contract with an employer whether or written and whether it is a contract of service or a contract personally to execute any work or labour (section 91 of the said Act). This contract is commonly referred to as "Contract of Service." But where the contract allows the contractor to work for people other than the employer, on the other hand, these are persons referred to as independent contractors or self -employed.  Where there is a dispute as to which kind of contract the parties enter, there are factors which 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 alike 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 thereunder, 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 (Sourthern) Ltd. v. Willshire (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 for service. 

 

13.  The Claimant has presented before this Court, the foundation of her relationship with the Defendants; exhibits C1.  In ambiguous contract of employment relationships such as presents itself in this case, as laid down by international labour jurisprudence, this Court applies the primacy of facts in determining employment relationship.  This is as laid down in the ILO Report titled: The Scope of the Employment Relationship; ILO Office: Geneva, 2003 at page 24 and 25).  This principle has been applied by this Court in many cases.  See for instance the case of PENGASSAN v. Mobil Producing Unlimited Suit No. NIC/LA/47/2010 delivered on 21^st March, 2012 by B.B Kanyip and O.A. Obaseki-Osaghae J.J, and Stephen Ayogu & 16 Ors v Mobil Producing Nigeria Unlimited & Anor Suit No.NIC/LA/38/2010 Ruling delivered on 13^th December 2012.  The principle of primacy of facts in my view, is also consistent with the definition of contract of employment in section 91 of the Labour Act which recognised “agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker”.  The implication of this definition is that it is the facts that determines when a person is in a contract of employment or not, and not only the presentation of a contract document.  Having had the benefit of considering the facts of this case, and applying the primacy of facts in this case, I find that there is an employment relationship between the Claimant (trading in the name of Bukky Joy-Bright Ventures.

14.  I hold this view because, as can be seen in the decision of the Supreme Court of Nigeria in Shena Security Co. Ltd v Afro Pak (Nig) Ltd & 2 others (2008) 18 NWLR (Pt. 1118) p. 82, where the Court was faced with the issue of whether the contract to supply security guards and supervisors by the Appellant to the Respondents was a contract of service or one for service to qualify the Appellant as a worker; the Court restated the meaning of a worker under the Labour Act as referring to any person who has entered into or works under a contract with an employer whether the contract is for manual or clerical work or is expressed or implied oral or written and whether it is a contract of service or a contract to personally execute any work or labour.  Such a contract, according to the Supreme Court is commonly referred to as contract for service.  In that matter, the Court held that the Appellants were workers contemplated by the Labour Act.  In this case:

(i)               The relationship between the Claimant and the 1^st Defendant has lasted for over 15 years; a most unlikely period for an independent contractor. 

(ii)            The payments for the services rendered by the Claimant were paid monthly, and in the form of salaries, as shown in most of the Defendants’ documents.

(iii)          The fact that the payments were made monthly.

(iv)          Daily work is required/services of the Claimant and is rendered in the 1^st Defendant’s premises.

(v)             Some equipment were provided by the 1^st Defendant.

15.  Further, the relationship as found to exist between the Claimant and the 1^st Defendant places this suit squarely within the jurisdiction of this Court.  This is because by section 254(C) (1)(a), this suit relates to and is connected with labour, and employment.  Further, by section 254(C)(1)(k), this suit is also relating to and connected with disputes arising from payment or nonpayment of salaries, and wages.  I therefore hold that this Court has jurisdiction to hear this suit.  The preliminary objection fails and is dismissed.

16.  Issue two - Whether the Claimant is entitled to the reliefs she seeks in this suit?  To determine this issue, I shall take the reliefs sought by the Claimant seriatim:

Relief ‘A’ for “AN ORDER setting aside the purported termination of the employment contract of the Claimant with the 1^st Defendant for being unlawful, breach of terms and conditions of employment contract, null, void and of no effect whatsoever.  Exhibits C1 shows that the contract between the Claimant and the 1^st Defendant was renewable annually, and at the instance of the 1^st Defendant.  The last renewal was on 27^th June, 2019, with effect from 1^st July 2019 to June 2020 via exhibit C5.  In this regard, I note that the last paragraph of Exhibit C5  stated that: “Note that Management reserves the right to terminate this contract when performance falls below expectation. It is however renewable annually subject to satisfactory performance”. Exhibit C7 (D12) (letter dated 6^th January 2020 issued by the Defendants to terminate the Contract) is the letter that terminated the Claimant’s employment.  It is clearly captioned “TERMINATION OF SERVICE CONTRACT”.  It is the Defendants’ argument that exhibit C7 activated the 1^st Defendant’s right to terminate the renewed contract contained in Exhibit C5.  However, the exhibit C7 did not purport to terminate the Claimant’s employment for falling below expectation.  Rather it purports to terminate the contract on the grounds of its expiration; which is not correct, as the contract was yet to expire by June 2020.  In doing so, the termination is wrongful, and not unlawful, as alleged by the Claimant.  The wrong is the unexpired period of the contract.  The contract was terminated after the payment of the December salary as shown by exhibit D13.  Exhibit C10 does not prove non-payment of extra months as the descriptions on the payments are not conclusive as to the payer.  It is safe to conclude that the Defendant did not pay the Claimant for January to June; a period of six months.  The termination though wrongful cannot be set aside; however, the Claimant is entitled for the unexpired term of the contract; i.e., six months’ salary.  I so hold.

Relief ‘B’ for “AN ORDER restoring the Claimant back to the state of affairs before with the Claimant’s full rights, benefits and privileges before the unlawful termination of the Claimant’s employment by the 2^nd Defendant”.  This relief cannot be granted since the termination is found to be wrongful only, and not unlawful.

Relief ‘C’ for “AN ORDER restoring the converted staff of the Claimant by the 2^nd Claimant back to the Claimant and that the conversion of the Claimant’s staff by the 2^nd Defendant is unlawful, null and void”.  This relief fails as the Claimant did not prove any such conversions of her staff.

Relief ‘D’ for “AN ORDER restraining the 2^nd Defendant or any other person or persons working for or in the employment of the 1^st Defendant from further practicing any form of discrimination against the Claimant”.  This relief fails for lack of proof.

Relief ‘E’ for “AN ORDER for the immediate payment of the already accrued and unpaid salaries of the Claimant from the Month July, 2019 till when judgment will be delivered in this case in the sum of Three Hundred and Five Thousand (305,000.00) Naira per Month which is the monthly salary of the Claimant as contained in the employment agreement.  This relief succeeds only in part.  The 1^st Defendant is ordered to pay the Claimant immediately, the already accrued and unpaid salaries of the Claimant, from January 2020 to June 2020, a period of six months, representing the unexpired period of the contract as the Contract was not renewe.  Exhibit C5 shows that the Claimant’s monthly pay was a total of Three Hundred and Five Thousand Naira.  N305,000.00 multiplied by six months gives a total of N1,830,000.00.  The 1^st Defendant is ordered to immediately pay the sum of One Million Eight Hundred and Thirty Thousand Naira to the Claimant.

Relief ‘F’ for “AN ORDER for the immediate payment of the Claimant’s outstanding salaries, benefits and all other entitlements due to the Claimant from 1^st of July, 2019 till when the Defendants comply with the Judgment in this case”.  This relief is subsumed in relief ‘E’ which is what this Court has found the Claimant has proved.

Relief ‘G’ for “AN ORDER awarding 21% interest per month on the Judgment sum from the date judgment is delivered until final liquidation of same” and Relief ‘H’ for “AN ORDER awarding general damages for breach of contract in the sum of Ten Million Naira (N10,000,000.00) Naira Only against the Defendants”.  I have considered the acts of the Defendant in its relationship with the Claimant and the wrongful manner her contract was terminated in flagrant disregard of exhibit C5.  I am convinced the Claimant deserves to be compensated for it.   The Defendant is ordered to pay to the Claimant, the sum of N500,000.00 (Five Hundred Thousand Naira) general damages for wrongful termination.  Cost of this suit is set at N500,000.00 against the 1^st Defendant.  This judgment is to be complied with, not later than 30 days from this date of judgment; failure, interest will accrue at 20% per annum.

Judgment is entered accordingly.

 

 

…………………………………….

Hon. Justice (Prof) Elizabeth A. Oji