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National Industrial Court

Oladapo Olatunji & Or. -VS- Uber Technologies System Nigeria

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: DECEMBER 4, 2018SUIT NO. NICN/LA/546/2017

 

BETWEEN

  1. Oladapo Olatunji
  2. Daniel John

(Representing themselves and otherUber and

Taxify Drivers in Nigeria in a Class Action)-     Claimants

 

AND

  1. Uber Technologies System Nigeria Limited
  2. Uber B.
  3. Taxify Tecnology Nigeria Limited- Defendants

 

REPRESENTATION

Olumide Babalola, with O. E. Emehige, for the claimants.

Mrs Chinasa Unaegbunam, with Miss Queenette Hogan and Kelechi Kalu, for the 1st and 2nd defendants.

  1. O. Abbas and N. O. Emmanuel, for the 3rd defendant.

 

JUDGMENT

  1. The claimants filed this suit on 7th November 2017 by way of an originating summons, which was later amended. The amended originating summons is supported by a 19-paragraphed affidavit deposed to by the 2nd claimant (with no exhibit attached) as well as a written address. By the amended originating summons, the claimants are praying for the following reliefs:
  • A declaration that the claimants and members of their class are employees of the defendant.
  • A declaration that by virtue or nature of the defendant’s control over the claimants and members of their class, they are not meant to be classified as independent contractors.
  • A declaration that the defendant is liable for the acts of the claimants and other members of their class while acting in the course of his employment with the defendant.
  • An order mandating the defendant to provide all relevant benefits, including but not limited to health insurance, pensions and other benefits to the claimants and members of their class.
  • Perpetual injunction restraining the defendant, its officers, from further denying liability for the claimants’ acts done in the course of their employ with the defendant.
  • Such other consequential order(s) that this Honourable Court may deem fit to grant in the circumstance.

 

  1. In supporting these reliefs, the claimants posed the following questions for determination:
  • Whether or not considering the circumstances of the facts of this case, the claimants and members of their class are independent contractors of the defendant.
  • Whether or not by the interpretation and construction of “worker” under section 91 of the Labour Act, the claimants and members of their class are employees of the defendant.
  • Whether or not the employment relationship between the claimants and the defendant has created an agency relationship.
  • Whether or not the defendant as the claimants’ employer ought to be vicariously liable for the claimants’ malfeasance.

 

  1. The 1st and 2nd defendants opposed the originating summons and so filed a counter-affidavit (with exhibits attached) and a written address. The 3rd defendant also opposed the originating summons and so filed its counter-affidavit (with no exhibit attached) and a written address. In reaction, the claimants filed a further affidavit in response to the 3rd defendant’s counter-affidavit (this time with exhibits attached even when the 3rd defendant did not attach any document to its counter-affidavit) and a supporting reply on points of law. In response to the 1st and 2nd defendant, the claimant filed a further affidavit in response to the 1st and 2nd defendants’ counter-affidavit (this time with exhibits attached) and a supporting reply on points of law.

 

THE CASE BEFORE THE COURT

  1. To the claimants, that had applied to the defendants to take up slots as one of their drivers for which the defendant requested them to bring their cars to the defendants’ training centres, which they did. The defendants conducted training sessions for them and the cars after they were recruited by the defendants as part of their drivers. That the defendants gave then several requirements for their cars and insisted on the means by which they carried out their duties as drivers including what they are to wear and how much they are to charge per trip. That they commenced work as one of the defendants’ drivers and were periodically given work to do upon which they earned weekly wages which were usually paid every Tuesday. That whenever they carried passengers, the passengers paid directly to the defendants who periodically paid them wages after making all relevant deductions including taxes. That the defendants periodically gave instructions as to how to carry out their duties especially relationship with customers, speed limits, maintenance of the car, insurance cover, etc. That they recently discovered that the defendants never made any tension remittance to any tension funds administrators and so they approached them on same but the defendants denied liability, hence this suit. The argument of the claimants is that they are employees of the defendants. The defendants, however, disagree contending that the claimants are independent contractors.

 

THE SUBMISSIONS OF THE CLAIMANTS

  1. The claimants simply adopted the questions they posed for determination as the issues also calling for determination. On question/issue (1), the claimants submitted that the defendants have, in the past, made insinuations that the claimants and members of their class are ‘independent contractors’ contrary to settle provisions of the law on the subject. The claimants referred to University of Abuja v. Professor Kingsley Ologe[1996] 4 NWLR (Pt. 445) 706, which defined an “Independent Contractor”thus:

Generally, one who, in exercise of an independent employment, contracts to do a pieceof work according to his own methods and is subject to his employer’s control only as to end product or final result of his word. One who renders services in course of independent employment or occupation, and who follows employer’s desires only as to result of work and not as to means whereby it is to be accomplished.

That from the foregoing, the facts surrounding the recruitment process, the defendants’ control over the means whereby the claimants work is to be done as well as rates charged lend credence to the claimants’ submission that the claimants are not independent contractors of the defendants in this case.Furthermore, that in Shena Security Co. Ltd v. Afropak (Nig) Ltd[2008] 18 NWLR (Pt. 1118) 77, the factors to be taken into account when determining the kind of contract parties entered into include: 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. That the claimants have given evidence that they are paid periodic wages after the customer pays to the defendants who makes relevant deductions before paying them their dues every Tuesday, urging the Court to so find and hold that the relationship of the parties herein does not qualify as that of employer and independent contractor.

 

  1. For question/issue (2), the claimants referred to section 91 of the Labour Act, which defines “worker” as:

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, but does not include-

(a) any person employed otherwise than for the purposes of the employer’s business; or

(b) persons exercising administrative, executive, technical or professional functions as public officers or otherwise; or

(c) members of the employer’s family; or

(d) representatives, agents and commercial travellers in so far as their work is carried on outside the permanent workplace of the employer’s establishment; or

(e) any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the articles or the material; or

(f) any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply.

That from this definition of a worker and the deposition made in the claimants’ affidavit to the effect that they were recruited to personally execute work for the defendants, the claimants submitted that they come within the definition of a worker under the Labour Act, urging the Court to so hold; and referring to Mobil Producing Nig. Ltd v. Udo (2008) LPELR-8440(CA) andOju v. Dopamu[2008] 41 MISC 1.

 

  1. As to question/issue (3), the claimants submitted that assuming but not conceding to the defendants’ eventual argument (if any) that the claimants are independent contractors, the next question that arises therefrom for the purpose of detecting the defendants’ liability is whether a sub-relationship of agency has been created as a result. To the claimants, the courts have over the years furnished answers to the foregoing question as shall be seen in First Bank v. Excel Plastic Industrial Ltd[2003] 13 NWLR (Pt. 837) 412, where it was held thus:

Agency is a relationship between two persons, by an agreement or otherwise, where one (the agent) may act on behalf of the other (the principal) and bind the principal by words and actions. Relation in which one person acts for or represents another by latter’s authority, either in the relationship of principal and agent, master and servant or employer or proprietor and independent contractor.

Furthermore, that in Quo Vadis Hotel v. Nigeria Maritime Service Ltd[1992] NWLR (Pt. 250) 653, the Supreme Court held the appellant liable for the failure of the respondent (an independent contractor) in the following words: “Failure of the agent to pay duties on goods imported is a breach of that section in respect of which the principal is liable”. The claimants then submitted that in the absence of any contrary authority to the foregoing and in consideration of the facts and circumstances of this case, a peculiar relationship of agent and principal has been created between the defendants and claimants by the nature of their business relationship, urging the Court to so hold, citingSavannah Bank v. Pan Atlantic Shipping and Transport Co[1987] 1 NWLR (Pt. 49) 212.

 

  1. Question/issue (4) is whether the defendants, as the claimants’ employer, ought to be vicariously liable for the claimant’s malfeasance. To the claimants, the defendants have repeatedly denied liability for any malfeasance reported against the claimants contrary to settled principles of law on the liability of an employer/principal for the wrongs of his servant/agent. That inMobil Oil v. Barbedos Cars Ltd[2016] LPELR-41603(CA), the Court of Appeal held that:

It is a well-established general principle of law that an employer is not liable for the acts of his independent contractor in the same way as he is for the acts of his servants and agents, even though the acts are done in carrying out the works for his benefit. This general rule is, however, subject the qualifications.One of such exceptions is where the work involves extra-hazardous acts, that is, acts which, in their very nature involve in the eyes of the law special danger to others; of such acts the causing of fire and explosions are obvious established instances, or where the works involve dangerous substances, a person is equally bound by an inescapable duty. The point may perhaps be crystallized by saying that he has no merely a duty to take care but also a duty to ensure that care is taken. It is, therefore, a matter of no importance in these classes of cases whether he delegates the duty to a servant or contractor. The burden of the duty cannot be thrown off, and if care has not been taken, wherever the fault may be, however he may have protected himself by special covenant with the individual or contractor actually in fault, he is liable in law to the party who has suffered by the default. In Black v. Christchurch Finance Co. (1894) AC 48, a case of creating a fire in the bush which spread to an adjoining owner’s land, it was said in the opinion of the Privy Council: “The lighting of fire on open bush land, where it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger, and a proprietor who executes such an operation is bound to use all reasonable precautions to prevent the fire extending to his neighbour’s property (sic utere tuo alienum non laedas). And if he authorizes another to act for him he is bound not only to stipulate that such precautions shall be taken, but also to see that these are observed, otherwise he will be responsible for the consequences.

That from the foregoing, the defendantsare liable for the wrongs of the claimants and cannot escape liability by merely denying same, referring toUmudje v. Shell Petroleum Development Co (Nig) Ltd[1975] 9-11 SC 155, ISC Services Ltd v. Genak Continental Ltd[2006] 6 NWLR (Pt. 977) 481 andShell Petroleum Development Co (Nig) Ltd v. Awillie-Odele-Okogbo[2011] LPELR-CA/PH/289/2006. The claimants then urged the Court to resolve this issue in their favour.

 

THE SUBMISSIONS OF THE 1ST AND 2ND DEFENDANTS

  1. The case of the 1st and 2nd defendants is that the 1st defendant has no contractual relationship with the claimants or any member of the class they purport to represent in this suit. UBER BV (the 2nd defendant), a company incorporated in the Netherlands, is the licensee of the UBER Application, a smart phone mobile application which is owned by UBER Technologies Incorporated. The UBER Application serves as an intermediary for transport services between two groups of technology users namely the “Riders” who are passengers seeking the provision of transport services and “Customers” who are independent transport service providers (comprising of individual drivers or drivers employed by transport service providers) using the UBER Application. When a Rider requests for a transport service using the UBER Application installed on his smart mobile phone, the request is sent to a Customer within the geographical location of the Rider. The Customer is not bound to accept the request. If the request is accepted, then a contract for provision of transport service is entered between the Customer and the Rider.

 

  1. The contracts between the Customer and UBER BV which are the Service Agreement and the Driver Addendum where applicable (used collectively herein as the “Uniform Agreement”) are entered into electronically via UBER BV’s website. The Service Agreement specifies that the relationship between UBER BV and the Customer is one of independent contractor and that UBER BV has no right to control or direct the Customer in the way that it provides its transportation service(s). The vehicle used for the provision of the transportation service is owned by the Customer and all expense associated with the maintenance of the vehicle, its fueling and insurance are handled by the Customer. The Customers retain absolute control over their activities and only use the UBER Application at their discretion The Customers are also not paid salaries or wages by UBER BV, ratherUBER BV deducts a particular percentage of the fares paid to Customers by the Riders as a service charge and remits the balance to the Customers.

 

  1. The Customers are at liberty to provide their transportation services using the UBERApplication and may also utilize the transport service provision Applications of other companies or choose not to use an UBER Application at all. The Service Agreement specifically provides that it shall not be deemed to create any labour or employment relationship in any manner. The contracts entered into by both Claimants are identical to those entered into by all Customers who have signed up to the use of the UBER Application for their transportation businesses.

 

  1. The Claimants entered into the Uniform Agreements and the Cash Fares Addendum Nigerian Contract in January 2017 and September 2017 respectively. In spite of the clear provisions of the Uniform Agreements, the Claimants have commenced the instant action seeking declarations to the effect that the Claimants and other members of their class are employees of the 2nd defendant and that they are, on that basis, entitled to certain employment benefits such as pension, health insurance etc. The declarations sought from this Court entail the redrafting of the contracts willingly entered into in order to attribute to the said contracts meanings and implications which the contracts have expressly stated to be inapplicable to them. What the claimants are seeking in real terms is a non-consensual amendment or novation of a contract it entered with another party, to the 1st and 2nd defendants by judicial intervention.

 

  1. The 1st and 2nd defendants then submitted four issues for determination, namely:
  • Whether this Honourable Court can grant the reliefs sought in the originating summons against the 1st defendant which has no contractual relationship with the claimants.
  • Whether upon a holistic construction of the Uniform Agreements between the claimants and 2nd defendant, the claimants can be said to be employees of the 1st and 2nd defendants who are entitled to employment benefits.
  • Whether the 1st and 2nd defendants can be held liable for the acts of the claimants and members of their class in the course of the provision by the claimants and members of their class of their independent transportation services, while using the UBER Application.
  • Whether the injunctive reliefs sought in the originating summons ought to be granted.

 

  1. On issue (a), the 1st and 2nd defendants submitted that no contract exists between the 1st defendant and the claimants. The Uniform Agreements which were executed electronically by each of the two claimants in relation to the provision of transport services using the UBER Application were entered with the 2nd defendant, a different entity from the 1st defendant herein, which is incorporated in the Netherlands and is the valid licensee of the UBER Application and all the intellectual property rights associated with it. That the claimants have not placed before this Court any agreement or contract which portrays them as employees of the 1st defendant. In addition, the 1st and 2nd defendants have exhibited the actual agreements executed electronically by both claimants, referring to Exhibits ASA1 and ASA2 which establish that the Uniform Agreements entered were between the claimants and the 2nd defendant, and paragraph 10 of the counter-affidavit. As such, that this Court cannot validly grant the reliefs sought by the claimants in the originating summons as there is no privity of contract between the claimants and members of the class of people they represent and the 1st defendant, who on record is a stranger to the Uniform Agreements under which the claimants are seeking the declaratory and injunctive reliefs in the originating summons. That the claimants’ contract is with the 2nd defendant, a separate entity from the 1st defendant, which provides a platform for its customers to offer transportation services to persons who have signed up to use the UBER App. That it is settled law that only parties to a contract have rights and duties under the contract and can sue and be sued on it, citingDunlop Pneumatic Co. v. Selfridge [1915] AC 847 andRebold Industries Ltd v. Magreola & ors[2015] LPELR-24612(SC), AG, Federation v. AIC Ltd [2000] 10 NWLR (Pt. 675) 293,Ogundare & anor v. Ogunlowo & ors [1997] LPELR-2326(SC) and First African Trust Bank Ltd v. Partnership Investment Co. Ltd [2001] 1 NWLR (Pt. 695) 517. That the rationale of the doctrine is to maintain the sanctity of contracts, citingUBA&anorv. Alhaji Babangida Jargaba [2007] LPELR-3399(SC); and that a plaintiff sho has no privity of contract with the defendant will fail to establish a cause of action for breach of contract as he will simply no have a locus standi to sue the defendant on the contract, citing Rebold Industries Ltd v. Magreola & ors (supra). The 1st and 2nd defendants then referred to Idufueko v. Pfizer Products Ltd [2014] 12 NWLR (Pt. 1420) 96 at 122-124, which held that the defendant could not be sued in respect of certain stock options granted to him by Pfizer International Inc. of New York since the latter entity was a separate legal entity. Also cited is Union Beverages Ltd v. Pepsicola International Ltd & ors [1994] LPELR-3397(SC). To the 1st and 2nd defendants, the 1st defendant is not a party to the Uniform Agreements upon which the claimants’ action is predicated; as such, the claimants have no maintainable cause of action against the 1st defendant and to that extent, the instant suit is unmeritorious and incompetent, urging the Court to dismiss the case against the 1st defendant on the basis that there is no privity of contract between the claimants and the1st defendant.

 

  1. For issue (b) i.e. whether the claimants are employees of the 1st and 2nd defendants, the 1st and 2nd defendants submitted that in the light of the clear provisions of the Uniform Agreements between the claimants and 2nd defendant, the claimants and other members of their class are not and should not be considered as employees of the 1st or 2nd defendants and are, therefore, not entitled to employment benefits. That the claimants relied on the definition of “worker” in section 91 of the Labour Act and submitted that by virtue of that definition, the claimants and other members of their class are employees of the 1st and 2nd defendants. Section 91 Labour Act defines a contract of employment as an “…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”, referring toShena Security Ltd v. Afropak Ltd[2008] 18 NWLR (Pt. 1118) 77. That the section further defines worker inter alia as a “…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 or whether it is contract of service or a contract personally to execute any work or labour…”That this definition clearly contemplates a relationship whereby one person (the employee or worker) is employed to provide services for another (the employer). The definition does not by any standard of assessment extend to a contract whereby one person provides a platform or resources to another to improve the latter’s business under stated conditions in return for a service fee. That that the legal basis of employment remains the contract of employment between the employer and the employee, referring to Halsbury’s Laws of England, Vol. 16 page 10. Thus, the ultimate determinant instrument of the status of a person as an employee, worker or otherwise is the relevant contract between the parties.

 

  1. The 1st and 2nd defendants went on that in the instant case, the Uniform Agreements between 2nd defendant and the claimants and other members of their class specifies the status of the claimants in clear terms. The claimants are designated as independent contractors and not as employees, referring to paragraph 14 of their affidavit in opposition to the originating summons where clause 13.1 of the Service Agreement is reproduced. That the Agreement further provides that the agreement between the claimants and 2nd defendant UBER BV is not and should, therefore, not be construed as a contract of employment. In addition to the specific description of the customers of the 2nd defendant as independent contractors, the substantive terms of the Uniform Agreements also exclude every element of a contract of employment, referring to clauses 2.4, 2.5 and 4.1 of the Service Agreement. To the 1st and 2nd defendants, by the express and clear provisions of the contract between 2nd defendant and its customers, the position of the claimants and other members of their class are established with certainty as independent contractors of the 2nd defendant and not employees. That the law is trite that the duty of the Court is not to write or rewrite a contract for the parties. The Court’s duty is to give effect to the terms of the contract, and where the terms of a contract as in the instant case are clear and unambiguous, the Courts are bound to give the terms of the contract their natural, expressed and intended meaning, citing Adetoun Oladeji (Nig) Ltd v. Nigerian Breweries Plc [2007] LPELR-160(SC);[2007] 5 NWLR (Pt. 1027) 415, Nika Fishing Co. Ltd v. Lavina Corporation [2008] LPELR-2035(SC),Union Bank (Nig.) Ltdv. Ozigi[1994] 3 NWLR (Pt. 333) 385 and West African Offshore Ltd v. Ariri[2015] 18 NWLR (Pt. 1490) 180.

 

  1. To the 1st and 2nd defendants, sanctity of contracts is a vital cornerstone of agreements and the courts have always observed a duty to respect and uphold this principle, citingFebson Fitness Centre v. Cappa H. Ltd[2015] 6 NWLR (Pt. 1455) 268 and Texaco Nigeria Plc v. Kehinde[2000] LPELR-10000(CA). Thus, that where the parties, as in the instant case, have reduced their agreement into a written document, extrinsic evidence is inadmissible to add to, vary, subtract from or contradict the terms of the written instrument, citingUnion Bank v. Ozigi (supra) andOlaoye v. Balogun [1990] 5 NWLR (Pt. 148) 24. That the depositions in the claimants’ affidavit in support of their originating summons by which the claimants purported to characterize a relationship between themselves and the 1st and 2nd defendants is erroneous. More so, on the strength of the Uniform Agreements, a characterization of the relationship between the claimants or any other Customer and the 2nd defendant as one of employer-employee are of no moment and must yield to the express and unequivocal terms of the contract on the issue.

 

  1. That over the years the Courts in Nigeria have adopted some tests which are applied in determining whether a relationship is one of employer and employee or of independent contractors. It is important to note that these tests are applied only where there is a dispute as to the exact kind of relationship entered into by the parties. In other words, the tests are applied where the contract is not clear or is silent on the kind of relationship entered by the parties, citingShena Security Co. Ltd v. Afropak & ors [2008] 18 NWLR (Pt. 1118) 77 at 94. That those tests which include the control test and the integration of the person into the enterprise can only be resorted to, for the purpose of providing guidance when the contract of the parties is either ambiguous or silent on the point. Where the contract is explicit on the nature of the relationship, then the express provisions of the contract must be applied and there would be no need to consider the factors which the courts have formulated as a guide in determining what kind of relationship the parties entered. This is consistent with the principle of sanctity of contracts and the cannon of interpretation that it is not the duty of the Court to write or rewrite the contract of the parties. The principle is also anchored on the rule that where a contract has been reduced into writing, extrinsic or oral evidence is inadmissible to vary or supplement the terms of the said contract, citingsection 128 of the Evidence Act 2011. That in this particular case where the parties were very express in stating that the relationship is one of independent contractors and that it did not create a labour or employment relationship, effect must be given to that expressed intention of the parties.

 

  1. The 1st and 2nd defendants It is submitted further that even if the said tests which have been developed by the courts are applied, this Court should have no difficulty in concluding that the claimants are independent contractors and not employees of the 1st or 2nd defendant. The factors which the Courts consider in determining whether the relationship between the parties is one of employer-employee or independent contractors include the control test and integration of the person into the enterprise. Applying the control test, a person is considered an employee of another (the employer) if the latter exercises control over the former in the performance by the former of his duties. The integration test on the other hand is to the effect that if the person whose status is being considered an employee or otherwise is integrated into the enterprise of the person being considered the employer, the former is said to be an employee of the latter. Other factors which the courts consider in determining whether an employment relationship exists between two parties include the method of payment, any obligation to work only for the employer, stipulations as to hours, overtime, holidays etc, arrangement for payments of income tax and national insurance contributions, how the contract may be terminated, who provides tools and equipment; and who, ultimately bears the risk of loss and the chance of profit, citingHalsbury’s Laws of England Vol. 16 at page 12.That these factors were comprehensively set outinShena Security Co. Ltd v. Afropak & ors (supra). That the claimants’ case does not satisfy any of these criteria in the assessment to qualify the Uniform Agreements between the 2nd defendant and the claimants and other members of their class as employees of the 2nd defendant or the 1st defendant.

 

  1. First, that as clearly expressed in clause 4.1 of the Service Agreement, the claimants and other members of their class are not paid salaries or wages. Rather, they are entitled to the fare paid by the Riders after the deduction of the service fee by the 2nd defendant. In this context, the fares paid by Riders to the claimants and other members of their class cannot be said to be salaries or wages. That if a customer does not transport any Rider for a whole week or a month, he is not paid any amount, because it is an independent contract. That this contrasts with the position of an employee who must be paid his agreed monthly or weekly salary or wages whether there is work to be done or not.

 

  1. Secondly, the tools for the claimants’ transportation businesses are not supplied by 1st or 2nd defendant. UBER BV only provides its customers an application to aid the customers’ independent transportation service businesses. That the Customers provide and maintain the vehicles with which they utilize the UBER Application and the UBER services for the enhancement of their businesses.

 

  1. Furthermore, under the Uniform Agreements between 2nd defendant and its Customers, the Customers are not under an obligation to personally drive the vehicles they register on the UBER platform. They are at liberty to personally drive the vehicles or employ drivers to drive the vehicles using the UBER Application. In other words, the Customers retain the liberty to delegate and indeed delegate their functions under the Uniform Agreements to drivers who are employees of the Customers.

 

  1. Additionally, there is no specific number of hours the Customers are required to work under the Uniform Agreements to utilize the UBER Application and the UBER services. On the contrary, the Uniform Agreements expressly provide that it is within the sole discretion of the Customer to decide when to use the UBER Application. By implication, the Customers decide when and for how long they use the UBER Application.

 

  1. Furthermore, the 2nd defendant exercises no form of control over the Customers and their businesses. The Customers retain absolute control over their businesses. The 2nd defendant only stipulates certain conditions on the use of the UBER Application.

 

  1. Finally, the Customers retain their transportation service businesses independent of the 2nd defendant. The Customers and their drivers are not integrated into the UBER business but maintain their distinct identities and operate their separate business models. In fact, that the Agreement allows the Customers to carry on their transport business without the UBER Application and also allows them to use other transportation applications including those owned by competitors of the 2nd defendant. Thus, the 2nd defendant exercises no form of control over its Customers including the claimants and other members of their class.In the light of all of this, that the conclusion that the claimants and members of their class are not employees of the 1st or the 2nd defendant is unassailable, urging the Court to so hold.

 

  1. The 1st and 2nd defendants then submitted that the reliefs sought by the claimants that they are entitled to employee benefits including health insurance and remission of pension contributions ought to fail. That as has been demonstrated, the contract of the parties is clear and unambiguous on the point that no labour or employment relationship exists between the claimants and the 1st or the 2nd defendant and the actual terms of the contract show that the 2nd defendant UBER BV exercises no control over the claimants and members of their class in respect of the way they perform their transport provision services. It, therefore, naturally follows that the claimants and other members of their class, not being employees of the 1st or the 2nd defendants are not entitled to employment benefits from the 1st or the 2nd defendants.

 

  1. Issue (c) is whether the 1st and 2nd defendants can be held liable for the acts of the claimants and members of their class in the course of the provision by the claimants and members of their class of their independent transportation services, while using the UBER Application. To the 1st and 2nd defendants, vicarious liability is defined by the Black’s Law Dictionary as “liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties”; referring also toTecno Mechanical (Nig) Ltd v. Ogunbayo[1999] LPELR-6760(CA). That the existence of a relationship of master-servant or principal-agent between the person who committed the wrongful act and the person on whom liability is sought to be imposed is a necessary condition for the application of the vicarious liability principle. Thus, in the absence of such relationship a person cannot be held liable for the wrongful acts of another. That because the 1st defendant is not privy to the contract between the claimants and 2nd defendant, no such master-servant or principal-agent relationship exists between the claimants and the 1st and 2nd defendants, citingOgundare & anor v. Ogunlowo& ors (supra). As such,the 1st defendant, not being privy to the contract between the claimants and the 2nd defendant, cannot suffer liability for the wrongful acts of the claimants and other members of their class under the said contract.

 

  1. That assuming without conceding that they stand in any form of contractual position to the claimants, the 1st and 2nd defendants submitted that neither of them can be held liable for the wrongful acts of the claimants and other members of their class as the claimants are not employees of the 1st or 2nd defendant. That in terms of the express provisions of the Uniform Agreements between the 2nd defendant and the claimants and other members of their class, the claimants are without argument, independent contractors and not employees, referring tothe Black’s Law Dictionary 7th Edition at page 774 in terms of the definition of independent contractor. The claimants had submitted that the 1st and 2nd defendants would still be liable for the wrongful acts of the claimants and members of their class even if the claimants are held to be independent contractors and not employees, relying onQuo Vadis Hotel Ltd v. Nigerian Maritime Services Ltd[1992] NWLR (Pt. 250) 65 SC3. for this submission. To the 1st and 2nd defendants, Quo Vadispresented starkly different facts which accounted for the reasoning of the Court, and so it should not be considered as an authority establishing a principle that a person who hires an independent contractor is liable for the acts of the independent contractor. That nowhere in the judgment did the Supreme Court state that a person is liable for the wrongful acts of his independent contractor.That the portion of the judgment carefully lifted and relied upon by the claimants was the concurring judgment of Olatawura, JSC at page 670 where His Lordship, after setting out section 136(ii) of the Customs and Excise Management Act 1958, which imposes liability on a principal for non-payment of duties by an agent, held that the failure of the agent to pay duties on goods imported is a breach of section 136 in respect of which the principal is liable. The appellant was only held bound by its neglect to pay duties on its consignment in breach of express provisions of the Customs and Excise Management Act and not for the acts of its agent. In any event, that the respondent was not described as an independent contractor by the trial Court, Court of Appeal or the Supreme Court, or even by the parties themselves in their pleadings or evidence. That description was an importation by the claimants which is not supportable having regard to what was decided in the case.

 

  1. The 1st and 2nd defendants went on that the extant position of the law, contrary to the submissions of the claimants, is that a hirer of an independent contractor is not liable for the acts of the independent contractor save in rare and exceptional situations e.g. the exercise of control over the independent contractor, whether a principal-agent relationship exists, where the work involves extra-hazardous acts or dangerous substances, etc, citingNorton v. Canadian Pacific Steamship Ltd [1961] 2, 786, CA,Performing Right Society Ltd v. Mitchel & Booker (Palais de Danse) Ltd [1924] 1 KB 762 at 766-769, Health Care Prod. (Nig.) Ltd v. Bazza[2004] 3 NWLR (Pt. 861) 582 at 605 and Mobil Oil v. Barbedos Cars Ltd [2016] LPELR-41603(CA). That the business of the 1st and 2nd defendants in the instant case does not in any manner pose danger to others. Furthermore, that transportation service business does not fall into the class of extra hazardous acts capable of dispensing with the general rule. In any event, that even if transportation service business were to be considered as an extra hazardous act, the businesses actually belong to the Customers and not the 1st or 2nd defendant. Thus, the 1st or the 2nd defendant cannot be liable for the operation by the Customers and their Drivers, including the claimants and other members of their class of their businesses. Accordingly, that neither the 1stnor 2nd defendant can be validly held liable for the wrongful acts of the claimants and other members of their class, urging the Court to so hold.

 

  1. Issue (d) is whether the injunctive reliefs sought in the originating summons ought to be granted. To the 1st and 2nd defendants, the relief of perpetual injunction is not granted in vacuo. It is an ancillary relief that flows from an eventual determination of the entitlement of a claimant to the declaratory reliefs sought in a case, citingGlobe Fishing Industries Ltd v. Coker [1990] 7 NWLR (Pt. 83) 265 at 293 and Goldmark Nigeria Ltd v. Ibafon Co. Ltd [2012] 10 NWLR (Pt. 1308) 291 at 352. That in the instant case, there is no privity of contract between the claimants and the 1st defendant; the claimants and other members of their class are not employees but independent contractors; and as independent contractors, the 1st defendant or 2nd defendant cannot validly be held liable for the wrongful acts of the claimants. That once the claimants’ fails, there can be no grant of the injunctive relief, using the Court to so hold. In conclusion, the 1st and 2nd defendants urged the Court to hold that the claimants’ case is unmeritorious and incompetent, and so dismiss it with substantial costs.

 

THE SUBMISSIONS OF THE 3RD DEFENDANT

  1. The 3rd defendant submitted two issues for determination, namely:
  • An independent contractor is a person who engages in an independent trade, business or profession by which he offers his services to members of the public. Although the claimantsare registered as drivers on the 3rd defendant’s software application, the claimants provide transportation services to members of the public through the use of their personal vehicles at any time convenient to them and they do not receive a salary or wages from the 3rd defendant. Are the claimants independent contractors?
  • Whereas there is no agency relationship between the claimants and the 3rd defendant, can the 3rd defendant be vicariously liable for the malfeasances of the claimants?

 

  1. On issue (a), the 3rd defendant submitted that the relationship between the claimants and the 3rd defendant is not an employer-employee relationship, but one where the claimants are independent contractors. That whereas section 91 of the Labour Act, on which the claimants erroneously placed serious reliance, defines a worker in such a language as it may be construed as an employee, the claimants have contended, based on the said provision of the law, that they are workers within the meaning of the Act and consequently, they ought to be regarded as employees of the 3rd defendant. That section 91 does not apply to the claimants. That the Black’s Law Dictionary, 10th Edition, defines an “employer” to mean “a person, company, or organization for whom someone works; especially, one who controls and directs a worker under an express or implied contract of hire and who pays worker’s salary and wages”; while it defines an “employee” to mean “someone who works in the service of another person (the employer) under an express or implied contract of hire, under which an employer has the right to control the details of work performance”. That if we apply the basic features of an employer and an employee by the above definitions, it is clear that the contention of the claimants that they are in any employment relationship with the 3rd defendant is erroneous. This is because, the 3rd defendant did not hire the claimants to do any work for them; it does not pay them any salary or wages; it does not direct or control the details of their work performance including when, where or how the claimants should work and the 3rd defendant does not provide the claimants with any vehicle or other equipment by which they provide transportation services to members of the public, referring toparagraph 10.2 of the General Terms of Drivers, which provides as follows:

Taxify and its Affiliates do not control or direct your provision of Transportation Services. You have the sole right to decide when and for how long to utilize the Taxify App and whether to accept the Customer’s request received via the Taxify App. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities.

 

  1. The 3rd defendant continued that further to the above, the Shena Security Co. Ltd v. Afropak (Nig.) Ltd & 2 ors [20081 18 NWLR (Pt. 1118) 77 SC; [20081 4 – 5 SC (Pt. II) 117 cited by the claimants is unhelpful to their case as although it provides a guide for distinguishing between an employee and an independent contractor, all the features listed in the case point towards the fact that the claimants are independent contractors and not employees of the 3rd defendant. That Shena provides sufficient guide in ascertaining the status of the claimants vis-a-vis the 3rd defendant with regard to the nature of the contract between the parties. First, the 3rd defendant does not pay the claimants any wages or salary. Rather, the claimants are entitled to charge a fare for each instance they accept a customer’s request via the 3rd defendant’s App and completed the Transportation Service as requested. The fare is calculated based on a default base fare, the distance of the specific travel as determined by the GPS-based device and the duration of the specific travel. The drivers are only expected to remit 15% of the transport fare to the parent company of the 3rd defendant for using their platform to reach out to riders while the remaining 85% is retained by the drivers (including the claimants and other members of their class) as their feesfor providing transportation service. The mode of payment obviously does not qualify as wages or salaries, as it is not a periodic pay; rather it is in form of a percentage over the fare obtained on each trip.

 

  1. Second, the 3rd defendant does not provide the equipment and tools for drivers to provide the transportation services as the claimants and all other members of their class are obliged to procure all necessary tools needed to provide transportation services by themselves, referring to paragraph 4.6 of the Terms of Drivers. Additionally, the contract between the 3rd defendant and the claimants and other members of their class requires the claimants and the drivers in their class to obtain all other documents that would require them to work, by themselves. The contract clearly exonerates the 3rd defendant in the case of default by the claimants to provide the necessary tools for themselves to work. Hence, the second test propounded in Shena also goes in favour of the 3rd defendant.

 

  1. Third, it is also clear that the claimants can delegate their duty of providing the transportation service under this arrangement and they can also register as drivers with the mobile software application of a competing company such as the 1st and 2nd defendants. Were the claimants to be employees of the 3rd defendant, they would personally have been required to carry out every trip and have no flexibility in the arrangement concerning who carries out the instruction.

 

  1. Fourth, Shena relied on the foreign case of Milway (Sourthern) Ltd v. Willshire[1978] 1 RLR 322 to hold that where the hours of work are not fixed, the contract is not one of employment. In the instant case, the drivers decide for themselves the days they would love to work and also their hours of work, referring to paragraph 4.5 of the Terms of Drivers, which provides that: “You retain the sole right to determine when and for how long you are providing the Transportation Services. You shall accept, decline or ignore Customer’s Transportation Services requests at your own choosing”. Also referred to is paragraph 8(a) of the 3rd defendant’s counter-affidavit.

 

  1. Fifth, the claimants are not required to carry out their tasks under the contract within the 3rd defendant’s premises, as the tasks can only properly be executed outside the 3rd defendant’s premises. And finally, the 3rd defendant does not provide office accommodation nor a secretary for the purpose of the tasks. That this Court is, therefore, invited to follow the guidelines listed in Shena and apply them to the instant case to hold that the claimants’ condition does not satisfy any of the conditions stated in Shena to regard the claimants as employees of the 3rd defendant. That this Court in Mrs Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors (unreported) Suit No. NICN/LN40/2012 in a ruling which was delivered on 16th July 2012 adopted the judgment and reasoning of the Supreme Court in Shena to explain in detail the meaning of the concept of an employment relationship and how it differs from an independent contractor. Accordingly, that the relationship between the claimants and the 3rd defendant as explained in the counter-affidavit is not a contract of service, but a contract for service.

 

  1. The 3rd defendant proceeded to submit that the contract between the claimants and the 3rd defendant is not a contract of employment. That the General Terms of Drivers, being the only contract document between the claimantsand the 3rd defendant, is what defines the legal position of both parties, including their rights and obligations, in relation to the transaction between them and nothing more. The law is trite that where the contract between two contracting parties is reduced to writing, the duty of the Court is to give effect to the terms of the said contract and not to rewrite the contract for the parties, referring to West African Offshore Ltd v. Ariri[2015] 18 NWLR (Pt. 1490) 180. That any evidence given at variance to what the terms stated in Terms of Drivers disclose in the absence of proof of fraud, intimidation, mistake or misrepresentation, is inadmissible, in view of its contravention of the provisions of section 128 of the Evidence Act. That in addition to the spirit of the contract between the 3rd defendant and the claimants (as reproduced in paragraph 8 of the 3rd defendant’s counter-affidavit), the letters of the contract also provide reasonable conclusion to maintain that there is no employment contract between the parties.That the basic understanding between the parties is that the 3rd defendant would allow the claimants to register on its platform and when demands for services are made on the 3rd defendant’s platform, the 3rd defendant would refer the demands to the claimants for a commission, citing paragraph 10.4 of the Terms of Drivers, as reproduced in paragraph 8(e) of the 3rd defendant’s counter-affidavit, which provides as follows:

You, Taxify and its Affiliates hereby expressly agree that the relationship between the parties is not an employment agreement, nor does it create an employment relationship between you and Taxify or Affiliate. The parties also agree that no joint venture or partnership exists between you and Taxify or its Affiliates. You may not act as an employee, agent or representative of Taxify or its Affiliates nor bind them to any contract.

That since the express terms of the contract are clear and unambiguous, the only jurisdiction this Court has is to give effect to the said terms. It is not for the Court to read into the contract that which is not stated based on the tenuous submissions of the claimants. It is also not the duty of this Court to rewrite for the parties their terms of contract by means of interpolation in the course of interpretation of the contractual terms, referring to BFI Group Corporation v. Bureau of Public Enterprises[2012] LPELR-9339(SC) andAgbareh &anor v. Mimra & 2 ors[2008] Vol. 2 MJSC 134 at 157.

 

  1. The 3rd defendant thus submitted that the submission of the claimants that they are employees of the 3rd defendant is misconceived and should be discountenanced by this Court. Instructively, that all the cases relied on by the claimants are inconsequential, as they neither provide any support, whether authoritative or persuasive, nor any justification for the theory unilaterally propounded by the claimants in defiance of the clear terms of their agreements with the 3rd defendant and the actual state of affairs regarding the implementation of the contract.

 

  1. The 3rd defendant went on that theclaimants made a puerile submission insinuating that they were recruited by the defendants personally to execute work and that they had deposed to an averment in their affidavit to that effect. That the contrary is, however, clear from the facts presented by both parties and as may be justified by the affidavit evidence before this Court. Furthermore, that the said averment on oath by the claimants is inadmissible being an attempt to vary the terms of contract which has already been reduced to writing, referring to section 128 of the Evidence Act,Obajimi v. Adedeji[2007] All FWLR (Pt. 394) 335 at 346 and Union Bank of Nigeria v. Ozigi[1994] 3 SCNJ 42. To the 3rd defendant, given that it is clear that there are no basic features of an employment relationship between the claimants and the 3rd defendant, and given also that the express terms of contract between the two parties have stated that they do not intend any legal consequence of employment relationship, the Court should give effect to their contract by holding that the claimants cannot be regarded as the employees of the 3rd defendant.

 

  1. Issue (b) is: whereas there is no agency relationship between the claimants and the 3rd defendant, can the 3rd defendant be vicariously liable for the malfeasances of the claimants? First, the 3rd defendant argued that there is no agency relationship between the claimants and the 3rd defendant. To the 3rd defendant, the relationship between the claimants and the 3rd defendant is not one of principal and agent. Instead, it is purely a contract for the provision of transportation services by the claimants to members of the public. That from their erroneous premise that the claimants are employees of the 3rd defendant, the claimants went ahead to assume that their employment relationship has created an agency relationship between themselves and the 3rd defendant, an assumption that is incorrect. The claimants had quoted from First Bank v. Excel Plastic Industrial Ltd[2003] 13 NWLR (Pt. 837) 412 on the nature of agency relationship. To the 3rd defendant, the Court of Appeal particularly regarded agency as a contract. that in the said contract, the agent has the authority of the principal to bind the latter by words and actions. That the Court of Appeal proceeded to make illustrations of various relationships which may give rise to agency relationship. But the most important factor is the authority of the principal to have itself bound by the act or conduct of the agent. That without the said authority, there can never be an agency relationship. That the relevant question in the instant case is, do the claimants have the authority of the 3rd defendant to carry out any act on the 3rd defendant’s behalf? The 3rd defendant answered in the negative. That apart from the fact that the claimants are not the 3rd defendant’s employees, which erroneous supposition largely forms the basis of the claimants’ argument on agency, there is really no contract between the 3rd defendant and the third party whom it refers to the claimants, which contract the claimants may execute on behalf of the 3rd defendant to the benefit of the third party. Rather, there is only a single contract between the claimants and the 3rd defendant on the one hand and the claimants and the third party on the other hand. That all that the 3rd defendant does is to provide a mobile software application through which members of the public who require transportation services can contact independent service providers such as the claimants and other members of their class who are willing to provide transportation services to members of the public. The 3rd defendant merely created a platform for the claimants and receives commission on every earnings made by the claimants through its platform. It is submitted that this, without more, does not create an agency relationship.

 

  1. The 3rd defendant continued that to further buttress the argument that the claimants lack the authority of the 3rd defendant to enter into any contractual agreement on its behalf, the General Terms of Drivers provides at paragraph 10.4 as follows: “…The parties also agree that no joint venture or partnership exists between you and Taxify or its Affiliates. You may not act as an employee, agent or representative of Taxify or its Affiliates nor bind them to any contract”. Accordingly, that the ordinary grammatical meaning of the words employed in the contract document between the parties denotes that there is no agency relationship between them, urging the Court to so hold.

 

  1. Next, the 3rd defendant submitted that it cannot be vicariously liable for the malfeasances of the claimants.The claimants had argued that being an agent or employee of the 3rd defendant, the 3rd defendant must assume responsibility for all their malfeasances and that the 3rd defendant “cannot escape liability by merely denying same”.To the 3rd defendant, this argument is misconceived and ought to be discountenanced by this Court. This is because an agent or employee who commits any wrong and brings about some loss on his employer or principal is not exonerated by his own wrongdoing merely because of the existence of the doctrine of vicarious liability. That vicarious liability only affords an injured third party of adequate compensation for the loss he suffered due to the negligence or ineptitude of the agent or servant. It is not a doctrine to shield or protect a careless or reckless servant or agent from liability as the principal or employer has a cause of action against him to recoup the loss he suffered from his recklessness or carelessness. That a person’s own wrongdoing cannot set up a cause of action for his own benefit, citingAdetoro v. UBN Plc[2007] All FWLR (Pt. 396) 590 at 626 and 628. That in the instant case, there is no valid reason in law for the 3rd defendant to assume responsibility for the malfeasances of the claimants since it has been demonstrated above that the claimants are not the 3rd defendant’s employees, agents or representatives.

 

  1. The 3rd defendant went on that theclaimants made an alternative argument on agency on the erroneous supposition that where the 3rd defendant considers the claimants as independent contractors, there is agency relationship which arises therefrom and so the 3rd defendant should bear the claimants’ liability, vicariously.That for this faulty submission, the claimants sought to rely on Quo Vadis Hotel v. Nigeria Maritime Service Ltd[1992] NWLR (Pt. 250) 653. The 3rd defendant cited Mothercat (Nig.) Ltd v. Johnson[2017] LPELR-43605(CA) where an independent contractor was described thus:

An Independent Contractor has been defined by Black’s Law Dictionary, 9th Edition, 2009 at page 839 as one who is entrusted to undertake a specific project but who is left free to do the assigned work and choose the method for accomplishing it. It does not matter whether the work is done for pay or gratuitously.

To the 3rd defendant, the mere fact that the claimants have been regarded as independent contractors of the 3rd defendant does not necessarily mean that the 3rd defendant can be held liable for the malfeasances of the claimants.This is because the law is steel solid that an independent contractor who commits a wrong while carrying out the work does not create liability for the one who hired the independent contractor, referring to Mothercat (Nig.) Ltd v. Johnson (supra). That it is clear, therefore, that even if this Court regards the claimants as independent contractors of the 3rd defendant, it still does not follow, on the strength of Mothercat, that the 3rd defendant would be vicariously liable for the wrongdoings of the claimants, urging the Court to so hold. The 3rd defendant concluded by urging that this case ought to be dismissed with substantial cost against the claimants.

 

THE CLAIMANTS’ REPLIES ON POINTS OF LAW

  1. The claimants filed two replies on points of law: the one regarding the submissions of the 1st and 2nd defendants; and the other regarding the submissions of the 3rd defendant.

 

Reactions to 1st and 2nd Defendants’ Submissions

  1. On whether the mere use of the word “Independent Contractors” in the Uber B. V. Agreement automatically transforms the claimant into same even in the face of contradictory clauses in the said agreement, the claimants submitted that the title of a document does not generally determine its contents in isolation of the general contents, referring to Okoro Nwachukwu v. Boji Boji Microfinance[2013] LPELR-2313(CA) and Ogbonna v. A.G. Imo State[1992] 2 SCNJ 26 at 45. That the fact that the word “Independent contractor” is used in the agreement does not necessarily render the Court slavish to such use in the interpretation of the terms of the said agreement to determine the actual status of the claimants, citing Alhaji A. O. Suleiman v. Jimbash Nigeria Ltd (2014) LPELR-24615(CA). That the 1st and 2nd defendants may have designated the claimants as “independent contractors” in the uniform agreement, but such a description does not perfectly capture the status of the claimants. That for the Court to truly determine whether the claimants are independent contractors in law, the said word must first be defined. Hence, at page 191 of Babalola’s Law Dictionary (2018) Noetico Repertum, Lagos, the word “Independent Contractor” is defined as: “One who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it and may use his own discretion in things not specified beforehand; (2) one who is his own master”. Also referred to are: African Continental Bank Limited v. Apugo[1995] 6 NWLR (Pt. 399),Health Care Products Nigeria Limited v. Alhaji Musa Bazza[2004] 3 NWLR (Pt. 861) 582 and Adewunmi v. Plaufox Nig. Ltd[1986] LPELR-164(SC). That ultimately in Shena Security Co. Ltd v. Afropak (Nig.) Ltd[2008] 16 NWLR (Pt. 1118) 77, the Supreme Court laid down certain factors that would determine the relationship of parties in this kind of pickle in the following terms.

 

  1. First, if payment is made by wages or salaries, this is indicative of a contract of service. If payment is by fees or commission, then it is contract for service. To the claimants,at page 1500 of Webster New World Dictionary, Third College edition, “wages” is defined as:“Money paid to an employee for work done and usually figured on an hourly, daily or piecework basis”. Also at page 1811 of the Black’s Law Dictionary, 10th edition, ‘wages’ is defined as:“…Payment for labour or services usually based on time worked or quality produced”. On the other hand, ‘Fees’ is defined at page 496 of the Webster New World Dictionary, Third College edition as: “Payment asked or given for professional”. Again at page 732 of Black’s Law Dictionary, “Fees” is defined as: “a charge or payment for labour or services especially professional services”. While the word ‘Commission’ is also defined at page 280 of Webster New World Dictionary, Third College edition as:“A fee or a percentage of the proceeds paid to a salesperson”. At page 327 of the Black’s Law Dictionary, 10th edition, “commission” is defined as: “a fee paid to an agent or employee for a particular transaction”.

 

  1. That from the foregoing, the question that arises is: under the Uber Services Agreement, do the claimants earn wages/salaries or fees/commission? It is the claimants’ view that from clause 4.1 of the said uniform agreement, the answer has been supplied. For the avoidable of doubt, that clause 4.1 of the Uber services Agreement provides for “Fare calculation and customer payment” as determined by Uber. That from the wording above, fare payable to the claimants as determined by the 2nd defendant is tantamount to wages payable on piecework basis and on weekly basis. That this contention is fortified by the fact that same clause 4.1 is worded to show that such fare (wages) is calculated by 2nd defendant and paid to the claimants after deductions have been made as EXCLUSIVELY determined by Uber. That ‘fees’ as defined above are paid for professional services as opposed to services rendered by the claimants who are drivers and not skilled professionals. It must also be observed that the only applicable fee in the agreement is the one paid to 2nd defendant (Uber) by itself as opposed to professionals. That it is clear from the terms of the agreement that, the only applicable fee in the agreement is the one arrogated to 2nd defendant (Uber) by itself as opposed to the claimants and it must also be observed that from paragraph 4.1, the said fare (wages) is paid on weekly basis, urging the Court to hold that the fare calculated, determined and paid on weekly basis by the 2nd defendant (Uber) further confirms our submission that it is wages rather than fees/commission.

 

  1. Second,where employer supplies the tools or other capital equipment. To then claimants, the business model of the 2nd defendant (Uber) is driven by its app, with which all its business activities are operated including, recruitment, registration of drivers, location and accumulation of users, calculation and payment of fares (wages), rating of drivers and tracking of their activities. That with this reality in mind, it is safe to then conclude that, there would be no 2nd defendant’s(Uber’s) business without the Uber app around which its entire business and existence revolves. That, as evident from the Uber service Agreement, the 1st and 2nd defendants provide access to the app – the capital equipment – which enables the claimants to function as clause 2.1 of the agreement, which provides thus, shows: “Driver IDS. Uber will issue customer a Driver ID for each driver providing transportation services to enable customer and each driver to access and use the driver app on a device in accordance with the driver addendum to this agreement…” That from this provision, the following realities about Uber’s business come to mind:
  • It is Uber that issues IDs to the claimants.
  • It is the ID that enables the claimants to use Uber driver app.
  • It is the driver app ID that enables the claimants to perform their duty under the Uber service agreement.
  • Without the app, the claimants cannot be given tasks and earn money under theservice agreement.

Conclusively, the claimants submitted that the App and ID are capital equipments that enable the claimants to work and earn wages under the agreement without which they cannot function under the agreement.

 

  1. From the foregoing, that the claimants and 2nd defendant (Uber) agreed as follows:
  • Uber supplies claimants with devices.
  • Devices are used for accessing Uber app and services.
  • Devices remain the property of Uber.
  • Without the devices, claimants cannot work and earn wages.

The claimants then submitted that since Uber provides the devices, this factor has been established in favour of the claimants since there can be no business without the Uber app and devices, urging the Court to so hold.

 

  1. Third, in a contract of service, it is inconsistent for an employee to delegate his duties under the contract, thus where a contract allows a person to delegate his duties, it becomes a contract for service. Here the claimants referred to clauses 2.l, 2.7.1, 5.1, 5.2, 14.4 and 14.6 of the Uber service agreement, which provide as follows:

Clause 2.1: “…Customers agree that it will and that it will ensure that its drivers will, maintain driver IDs in confidence and not share Driver IDs with any third party other than the Driver associated with such driver app”.

Clause 2.7.1:“… (b) Uber devices may not be transferred, loaned, sold or otherwise provided in any manner to any party…”

Clause 5.1:“… Uber hereby grants customer a non-exclusive, royalty free, non-transferable, non-sub licensable, non-assignable licence”.

Clause 5.2:“Customer shall not and shall not allow any other party to: (a) licence, sublicence, sell, resell, assign, distribute or otherwise provide or make available to any other party the Uber services”.

Clause 14.4: “Customer may not assign or transfer this agreement or any of its rights or obligations hereunder, in whole or in part…”

To the claimants, the wordings of these clauses are clear and unambiguous, hence they should be given their ordinary meaning, citingKayode v. State[2008] WRN (Vol. 2) 102 at 106 andObi v. INEC[2007] LPELR-2166(SC).

 

  1. That counsel, however, to the contrary, submitted that customers are at liberty to employ drivers to drive the vehicles; in other words, they can delegate their functions.This contention, to the claimants, would not be right in the face of clauses 2.1, 2.7.1, 5.1, 5.2, 14.4 and 14.6 of the Uber services agreement, which clauses expressly forbid assignment, sublicensing, and transfer of rights/duties granted under the agreement thereunder especially since the drivers contemplated under the agreement must have been pre-registered and also made parties to the addendum, hence they are not third parties. That unsurprisingly, the 1st and 2nd defendants have not referred the Court to the specific provisions that allow the customers to delegate as opposed to specific paragraphs which frown at such. In this case, that the express provisions that forbid assignment/ delegation or transfer of obligations shall override any implied term to the contrary, citingFCMB v Benbik Ltd[2014] LPELR-23505 (CA). The claimants then submitted that by the express provisions of clauses 2.1, 2.7.1, 5.1, 5.2, 14.4 and 14.6 of the agreement, the functions and obligations are not to be delegated, assigned, sublicensed or transferred.Specifically, that by clause 2.1, the claimants are forbidden from sharing their Driver ID (their work tool) with anyone, while under clause 2.71, Uber devices cannot be transferred to any other party other than the claimants assigned to it.Under clause 5.1, the (work) license granted the claimants are non-transferable, non-sub-licensable and non-assignable, while under clause 5.2, the claimants shall not sub-license, transfer or assign to any other party their obligations under the Uber service agreement.And clauses 14.4 and 14.6 specifically forbid the claimants from assigning or transferring their rights/obligations to other parties.

 

  1. Fourth,where hours of work are fixed. To the claimants, this factor must be viewed with the mind-set that the business of Uber is a technical and ultramodern one which defies most conventional characteristics of an orthodox workplace. That the hours of work of the claimants are determined by several factors e.g.: duration of the trip;traffic condition of location, etc. That the claimants’ work is based on piece work basis and as such, hours of work are based on the time of commencement and completion of each work which varies from location to destination and the time of week (peak period and rush hours). The claimants then referred to some foreign decisions. Uber B.V. v. Mr Y. Aslam, Appeal No. UK/EAT/0056/17/DA, a decision of the Employment Appeal Tribunal (EAT) sitting in London, where the respondent (Aslam) sued Uber at the lower court (Employment Tribunal) that he was a worker of Uber and entitled to certain benefits. The employment tribunal found for the respondent by concluding that any Uber driver who had the Uber app switched on, was within the territory in which they were authorized to work. On appeal, the EAT, while dismissing Uber’s appeal, applied the case of Autoc1enz Ltd v. Belcher and ors[2011] ICR 115751 (E) and held that:“…the reality of the situation was that the drivers were incorporated into the uber businessof providing transportation series, subject to arrangements and controls that pointed away from their working in business on their own account in a direct contractual relationship with the passenger each time they accepted a trip”The Court further held at paragraph 102 of the judgment as follows:“In determining the question in the employment context, it will be relevant to consider the nature of the obligation between the parties, but the absence of a general obligation to work cannot be fatal to those cases where it is accepted that there are gaps between particular engagements or assignments…other factors that may be helpful are likely to include the degree of integration into the business undertaken by another”. At paragraph 103, the Court quipped thus:“The issue at Court of Appeal can be simply put: when the drivers are working, who are they working for”.Ultimately, the Court held at paragraph 126 that:“On the ET’s finding of fact in this case, I do not consider it was wrong to hold that a driver would be a worker engaged on working time when in the territory with the app switched on and ready and willing to accept trips”.

 

  1. Also, that in the California Unemployment Insurance Appeals case against Uber: case No 5371509 (formerly case No. 5338037), a driver sued Uber when her account was deactivated for failure to provide certain documents that Uber needed.In deciding the case, the Court relied on the decision in Empire Star Mines Co. Ltd v. California Employment Commission (1946) 28 Cal. 2d 33,where the Supreme Court of California held thus:“In determining whether one who performs services for another is an employee or an independent contractor, the most important factor is the right to control the manner and means of accomplishing the result desired. If the employer has the authority to exercise complete control whether or not the right is exercised with respect to all details, an employer/employee relationship exists. Strong evidence in support of an employment relationship is the right to discharge at will without cause”.The court continued and held that:

In the present case, the evidence showed that appellant, Uber was in the business of providing transportation services to their clients “riders” the employer/appellant had the necessary licenses to provide these samples. The claimant did not have her own business license to provide services in public transportation and could not establish her own clientele. The services provided by the claimant were an integral part of the appellant’s without these drivers in fact, the employers business of public transport would not exist…Although the claimant used her own car, Uber required it to meet certain specifications and had to be inspected by UBER agent and vendors. The appellant, UBER had absolute control in determining the compensation the claimant would receive for the services. The appellant established a percentage to be paid to the claimant and whether or not at certain terms, this percentage would change was decided by the appellant. The time and method of payment for her services was determined by appellant. The claimant was paid on weekly basis through direct deposit to her bank account.

The court ultimately decided that: “There is an employer/employee relationship between the claimant and appellant”. In like manner, that in Unemployment Insurance Appeal Board v. Uber Technologies ALJ Case No. 016-23858, filed by another Uber driver based in New York, the Court rejected and so overruled the employer’s objection contending that the claimant and all other similarly situated were independent contractor. From all of this, the claimants urged the Court to resolve the entire issue in our favour.

 

  1. On Uber’s extent of control over the claimants’ performance of duties, the 1st and 2nd defendants had submitted that Uber exercises no form of control over customers in total disregard of the service agreement which contains copious provisions on control of the claimants’ activities, referring to clauses 2.1 (which forbids the claimants from sharing their IDs with third parties), 2.4 (which provides for Uber’s right to deactivate any driver from the app), 2.6.2 (which enjoins each driver to maintain an average rating that exceeds the minimum average), 2.8 (which enjoins drivers to provide their geolocation to the 2nd defendant before they can work), 3.1 (which enjoins that drivers must possess driver’s licence), 3.2 (the 2nd deenfant determines the suitability of vehicles for Uber services), 3.3 (the 2nd defendant verifies documentation of the claimants from time to time), 4.1 (fare determination, calculation and receipt is by the 2nd defendant), 4.2 (the 2nd defendant can change fare calculated at any time), 4.3 (the 2nd defendant can adjust fare where driver takes an inefficient route), and 4.4 (service fee is charged without reference to the claimants) of the agreement.

 

  1. The claimants went on that ultimately after every trip, the 2nd defendant (Uber) issues a receipt to the passenger evidencing payment for transportation services provided by the 2nd defendant (Uber),referring to Exhibits 1 to 5 attached to the claimants’ further affidavit which clearly show Uber’s logo. That this unequivocally shows the service rendered by Uber to the passenger as transportation services, hence it puts paid to any argument to the contrary. That it appears crystal clear that in all this, the only duty of the claimants is to accept work, go and pick the passengers, drive them to their destinations and then wait till the end of the week for their wages to be paid by the 2nd defendant (Uber), urging the Court to so find.

 

  1. The claimants made submissions as to the contradictions in the defendants’ claim that the claimants are independent contractors. To the claimants, it is trite law but, where there are contradictions in a party’s case, such would weaken such case, citingGuaranty Trust Bank v. Innoson Nigeria Ltd[2014] LPELR-22605(CA).That the 1st and 2nd defendants maintained that the claimants are independent contractors.In response, the claimants submitted that the agreement between the parties is fraught with fundamental contradictions which make such submission unsupported and untenable. The contradictions are:
  • That at page 1 of the agreement, it is stated that Uber is technology services provider which does not provide transportation services but receipts issued to passengers after every trip proves otherwise.
  • Under clause 2.3, Uber is not responsible or liable for the action or inactions of a user in relation to the activities of a customer (claimants) yet under paragraph 2.6.1 Uber expects ratings from users on the activities of the customer (claimants) and uses same to either terminate the contract of the customer or make further requests from same. It is the claimants’ view that if the 2nd defendant (Uber) is not truly responsible for the actions of a user in relation to customer (claimants) then it need not periodically request ratings as it does not superficially affect Uber.
  • Uber maintains that it is not a transportation company but at clause 2.6.2 of the agreement, it expresses it desires that users (passengers) have access to high quality services (which is purely transportation services) as ensured by the background checks on performance of vehicles and drivers by 2nd defendant (Uber) under clauses 3.2 and 3.3 of the agreement.
  • Uber also submitted that drivers are not obliged to work for any specified number of hours but clause 2.6.2 requires drivers to have above average ratings which cannot be attained if they do not accept work and where they do not maintain such rating, their contracts would be terminated. To the claimants, the liberty that the 2nd defendant (Uber) seemingly gives with one hand, is taken away by the other hand if the drivers do not improve their rating by accepting to work. This is in itself contradictory of the drivers’ liberty to accept work from the 2nd defendant (Uber).
  • On the fees payable, counsel agreed that independent contractors are paid fees.To the claimants, it is Uber that is paid fees under the agreement. That this further shows the inconsistency of Uber’s case as presented here coupled with the fact that, there is nowhere in the agreement where it is expressly stated that the claimants are to earn fees; rather what they earn are weekly fares (wages), urging the Court to so hold.

 

  1. On whether Uber can by their uniform services agreement create a contract between the claimants and passenger who are not parties to such agreement, the 1st defendant had submitted, on the sanctity of contracts, that parties are bound by the terms of their agreement. But that the question that arises is: can the 2nd defendant (Uber) by their service agreement bind the claimants to users who are not parties to the said agreement? That clause 2.3 of the agreement is instructive here.It provides thus:“Customer’s relationship with users. Customer acknowledges and agrees that customer’s provision of transportation services to user creates a legal and direct business relationship between customer and user to which Uber is not a party”. That when one considers the entire business module of the 2nd defendant (Uber), the above clause becomes more confusing, inoperative and of no effect. That it is a trite principle of law that a contract cannot bind a stranger to it, citing Intercontinental Bank v. Hilman Bros Water Engineering Services[2013] LPELR – (CA),KSO Allied Products Limited v. Kofa Trading Co. Ltd[1996] 3 NWR (Pt. 436) 244,Ogundare v. Ogunlawo[1997] 6 NWR (Pt. 509) 14 andAladi v. AIC[2010] 19 NWR (Pt. 1226) 111. That from the foregoing, in the absence of any contractual documents between the claimants and users/passengers showing any business relationship/liability between them, any clause establishing same in the Uber services agreement goes to no issue, urging the Court to so hold.

 

Reactions to 3rd Defendant’s Submissions

  1. The claimants’ reply on points of law regarding the submissions of the 3rd defendant is in terms similar to that in relation to the 1st and 2nd defendants already highlighted. The issues addressed are similar. The cases cited are also similar. It will thus be idle and a waste of effort and time to repeat the submissions of the claimant in terms of the reply on points of law to the 3rd defendant’s submissions once again.

 

COURT’S DECISION

  1. After due consideration of the processes and submissions of the parties, I start off with the 1st and 2nd defendants’ prayer that paragraphs 5 and 7 of the claimants’ further affidavit, being conclusions and arguments, should be struck out as they offend the Evidence Act 2011; and that the claimants’ reply on points of law should be discountenanced as it is a re-argument of the claimants’ case. Paragraph 5 of the further affidavit provides thus: “From the receipts issued to the passenger, the 2nd Defendant’s logo is boldly printed on same and I personally believe that such is a confirmation that the transportation services are provided by the 2nd Defendant”. This is no doubt an argument and a conclusion contrary to section 115 of the Evidence Act 2011. Paragraph 7 provides that: “I believe that drivers, and passengers alike, all knew they are dealing with the 2nd Defendant (Uber) – a company which provides transportation services to passengers and employment for drivers”. This too is a conclusion contrary to section 115 of the Evidence Act 2011. Both paragraphs 5 and 7 are accordingly struck out. I so find and hold.

 

  1. Like I indicated, the 1st and 2nd defendants had urged the Court to discountenance the claimants’ reply on points of law because it is a re-argument of the case of the claimants. I have already indicated that the claimants’ two replies on points of law, reacting to first the written address of the 1st and 2nd defendants and second to the 3rd defendant’s, are similar in content. Aside from this, there is sense in the submission of the 1st and 2nd defendants calling for the discountenance of the claimants’ reply on points of law. The claimants had, for instance, filed two further affidavits in response to the counter-affidavits of the defendants, attaching in the process exhibits that they refused to attach to their affidavit in support. These are exhibits that the defendants could not have reacted to. What the claimants did by this procedure is to force a fair accompli on the defendants and make it look like they are the claimants and the claimants are the defendants. In reacting to the bare affidavit in support with no supporting exhibits, the defendants played into the hands of the claimants when they exhibited documents. In the guise of reacting to the defendants, the claimants now chose to bring in their documents knowing that the defendants cannot thereby react to the said exhibits. For example, the argument of the claimants that after every trip, the 2nd defendant (Uber) issues a receipt to the passenger evidencing payment for transportation services provided by the 2nd defendant (Uber), referring to Exhibits 1 to 5 attached to their further affidavit which clearly show Uber’s logo, is one that the defendants cannot react to since it is offered in the reply on points of law, not the main address supporting the originating summons. In effect, what the claimants have done is to introduce new evidence in a reply on points of law, evidence that the defendants cannot react to. This cannot be.

 

  1. When the claimants’ filed this suit, the key issue they brought to Court was the determination of the question whether they are employees of the defendants or not. The affidavit in support of the claimants’ originating summons in paragraph 4 alluded to the claimants making an application to the defendants to take up slots as drivers; and were recruited and trained as such by the defendants (paragraph 6); and thereafter commenced work. This presupposes the existence of a contract between the parties, which incidentally the claimants did not frontload or attach to their affidavit in support. It was when the defendants filed their defence processes that the contact between the parties was exhibited by them. It was at this point that the claimants started to make copious submissions regarding the contract, technically taking up an opportunity they themselves foisted and bringing in points they themselves forgot or deliberately refused to make when they filed their main written address.

 

  1. A closer look at the affidavit in support of the originating summons will also show that the claimants’ averments are not supported with any authenticating evidence in the nature of documents and so leave out grey areas unsuited for an action commenced vide an originating summons. A number of examples will suffice. First, in paragraph 4 of the affidavit in support, the claimants’ “applied to the Defendants to take up slots as one of their drivers”. How was this application made? Was it orally or in writing? The Court is not told. Second, in paragraph 6, “the Defendants conducted training sessions for us and the car”. How were the training sessions conducted? How is a training session conducted on a car? Again, the Court is not told? Third, in paragraph 7, “the Defendants gave us several requirements for our car and insisted on the means by which we carried out our duties as drivers including what we were and how much we charged per trip”. What are these several requirements for the car? What are the means that the defendant insisted by which the claimants carry out their duties? What was it that the claimants had to wear? And how much did the claimants charge per trip as insisted upon by the defendants? The Court is not told. Four, in paragraph 8, “the Defendants were strict on the specifications our car and every other condition in which we carried out my duties as drivers including mandatory insurance cover”. What are the specifications of the claimants’ cars insisted on by the defendants? What are the “every other condition” in which the claimants carried out their duties? The Court was not told; nor was the Court shown any example of the mandatory insurance cover the defendants insisted on. Five, in paragraph 9, “we earned weekly wages which were usually paid every Tuesday”. What is the evidence and quantum of these weekly wages paid every Tuesday? The Court is not told. Lastly, in paragraph 11, “the Defendants periodically give us instructions on how to carry out our duties especially relationship with customers, speed limits, maintenance of the car, insurance cover et al”. What are these conditions? How periodic were the conditions given? The Court is not told. As it is, therefore, there is no way that the claimants’ affidavit in support of the originating summons, as it is, can sustain this action; not with these grey issues, issues that could appropriately have been brought to the fore by pleadings not the affidavit that the claimants supplied.

 

  1. Now, the law is that a reply on points of law is meant to be just what it is, a reply on points of law. It should be limited to answering only new points arising from the opposing brief. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. It is not a form to engage in arguments at large. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA),Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC), Ojo v. Okitipupa Oil Palm Plc [2001] 9 NWLR (Pt. 719) 679 at 693, Ogboru v. Ibori [2005] 13 NWLR (Pt. 942) 319 and Cameroon Airlines v. Mike Otutuizu[2005] 9 NWLR (Pt. 929) 202. The effect of non compliance is that the Court will discountenance such a reply brief. See Onuaguluchi v. Ndu [2000] 11 NWLR (Pt. 590) 204,ACB Ltdv. Apugo[1995] 6 NWLR (Pt. 399) 65 and Arulogun & ors v. Aboloyinjo & anor [2018] LPELR-44076(CA). In the instant case, what the claimants did in their two replies on points of law is not just to reargue their case but to bring in points that they forgot or deliberately refused to make in their main address. Theirs are replies on points of law that seek to improve on the quality of their main address, to repair or put right the lacuna they engendered in their initial address. For all the aforesaid reasons, I shall discountenance the claimants’ replies on points of law. I so hold.

 

  1. The claimants filed the instant action pursuant to Order 3 Rule 3 of the National Industrial Court (Civil Procedure) Rules 2017 (NICN Rules 2017). Under this Rule, civil proceedings that may be commenced by originating summons include matters relating principally to the interpretation of any constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the Court has jurisdiction. By Order 3 Rule 17 of the NICN Rules 2017, the following documents shall accompany an originating summons: an affidavit setting out the facts relied upon; copies of the instrument indicating part(s) sought to be construed (other than an enactment) and other related documents; and a written address. And by the proviso, where a suit raises a substantial dispute of facts or is likely to involve substantial dispute of facts, it shall not be commenced by way of originating summons, but by complaint.

 

  1. I indicated earlier that there is no way that the claimants’ affidavit in support of the originating summons can sustain this action given the undisclosed facts that are capable of aiding the resolution of this case. Added to this is the question of the competence of the questions that the claimants posed for determination if Rules 3 and 17 of Order 3 of the NICN Rules 2017 are taken into account. First, and on a general note, questions (1), (3) and (4) do not reveal the provision or instrument that is to be construed contrary to Order 3 Rule 17 of the NICN Rules 2017. In Adegbuyi v. APC & ors [2014] LPELR-24214(SC), relying on National Bank of Nigeria v. Alakija [1978] 9 – 10 SC 59, it was held thus:

The principle has become trite that the originating summons procedure is not for causes in which facts remain hostile and in conflict. The procedure is ideal for the determination of short and straight forward questions of construction and interpretation of documents or statutes. It is never the applicable procedure in controversial cases where the facts on which the court is invited to construe or interpret the document or legislation in relation to remain violently in conflict.

See also Famfa Oil Limited v. AG of the Federation & anor [2003] LPELR-1239(SC); [2003] 18 NWLR (Pt. 852) 453; [2003] 9 – 10 SC 31 and Njideka Ezeigwe v. Chief Benson Chuks Nwawulu & ors [2010] LPELR-1201(SC); [2010] 4 NWLR (Pt. 1183) 159 SC. In thus choosing to come by way of an originating summons as they did, the claimants have delimited their case to just question (2) since this is the question that meets the requirement of Order 3 Rule 17 of the NICN Rules 2017. See Sylvanus Eze v. University of Jos [2012] LPELR-20072(CA).

 

  1. As far as questions (1), (3) and (4) are concerned, therefore, there is no instrument or document that the claimants want interpreted. When the claimants filed this suit, no document was attached to their supporting affidavit, not even their “contract of employment”. It may be that because they assumed they are already in an employment relationship, at least this is what questions (3) and (4) depict, they saw no value in exhibiting their “contract of employment”. As it is, therefore, questions (1), (3) and (4) are incompetent to ground an action brought vide an originating summons. I so find and hold. This means that all arguments of the parties hinged on questions (1), (3) and (4) are discountenanced for purposes of this judgment. I so hold.

 

  1. Even a specific consideration of questions (1), (3) and (4) will reveal their illogicality in terms of a suit brought vide an originating summons. Question (1) i.e. whether or not, considering the circumstances of the facts of this case, the claimants and members of their class are independent contractors of the defendant talks of the circumstances of this case. What are these circumstances of the facts when what the claimants bought before the Court is the mere affidavit in support? The claimants waited for especially the 1st and 2nd defendants to file their counter-affidavit with supporting exhibits before they started filing documents in support. The claimants may think that they are being strategic. I have had cause previously to deprecate this behaviour of claimants’ counsel who think that the originating summons procedure is necessarily a short cut to justice. See, for instance, Dr Olusola Adeyelu v. Lagos University Teaching Hospital (LUTH) & 2 ors unreported Suit No. NICN/LA/94/2017, the judgment of which was delivered on 25th April 2017,First Bank of Nigeria Limited v. Nigeria Union of Pensioners & 3 ors unreported Suit No. NICN/LA/48/2016, the judgment of which was delivered on 12th July 2016 and Bethel Ezego& ors v. NUFBTE & anor unreported Suit No. NICN/LA/221/2017, the judgment of which was delivered on 16th July 2018.

 

  1. Question (3) i.e. whether or not the employment relationship between the claimants and the defendants has created an agency relationship assumes an already existing employment relationship between the claimants and the defendants even when this is what question (2) seeks to determine. Aside from not referring to any document for construction, once, for instance, it is decided that there is an agency relationship between the parties, then what? Logically speaking, since the claimants assumed in this question that there is an employment relationship between the parties, of what use is an agency relationship to them that will then warrant an inquiry in terms of determining question (3) as posed? What the claimants have posed as question (3) is thus not only hypothetical but academic; and courts do not answer hypothetical or academic questions. See Akeredolu v. Aderemi (No.2) [1986] 2 NWLR (Pt.25) 710 at 725 and Eperokun v. University of Lagos [1986] 4 NWLR (Pt. 34) 162 at 177.

 

  1. Question (4) is whether or not the defendant as the claimants’ employer ought to be vicariously liable for the claimants’ malfeasance. This question, as is question (3), assumes that there is an employment relationship between the claimants and the defendants. In assuming the existence of an employment relationship, question (4) asks whether the defendants ought (the key word here is “ought”) to be vicariously liable for the claimants’ malfeasance. First no sort of malfeasance has been revealed to this Court by the claimants; and none is actually in issue before the Court. Secondly, in asking whether the defendants ought to be vicariously liable, the claimants are talking in the realm of conjecture and speculation; and courts do not decide cases on the basis of speculation or conjecture. See Obasi v. M. Bank [2005] 124 LRCN 357,Buhari v. Obasanjo [2005] 130 LRCN 1925 and Clement Abayomi Onitiju v. Lekki Concession Company Ltd unreported Appeal No. CA/L/686/2013, the judgment of which was delivered on17th May 2016. In truth, question (4) posed by the claimants is hypothetical, it not being on any real infraction of any right of the claimants. Courts do not answer hypothetical or academic questions. See Akeredolu v. Aderemi (No.2) and Eperokun v. University of Lagos(both supra). The argument of the defendants that they cannot be held liable for the wrongful acts of the claimants because the claimants are independent contractors (or the claimants’ argument that the defendants would be liable even if the claimants were independent contractors) cannot be resolved unless the specific wrongful acts are disclosed; and this has just not been done as far this case is concerned.

 

  1. To show the folly of the claimants’ question (4), the 3rd defendant’s reaction on the issue of the claimants’ claim as to vicarious liability is instructive. To the 3rd defendant, an agent or employee who commits any wrong and brings about some loss on his employer or principal is not exonerated by his own wrongdoing merely because of the existence of the doctrine of vicarious liability giventhat vicarious liability only affords an injured third party of adequate compensation for the loss he suffered due to the negligence or ineptitude of the agent or servant or employee. It is not a doctrine to shield or protect a careless or reckless servant or agent from liability as the principal or employer has a cause of action against him to recoup the loss he suffered from his recklessness or carelessness. In any case, a person’s own wrongdoing cannot set up a cause of action for his own benefit. I agree with the 3rd defendant here. I thus do not see the sense in which the claimants would pray that the defendants be held vicariously liable for their malfeasance; for any holding to that effect would mean a corresponding liability of the claimants to the defendants for the said malfeasance. In any event, if an agency relationship is created as question (3) seems to suggest, then the claimant should be the agents; and as agents, the claimants automatically come within exception (d) in the definition of a worker under section 91(1) of the Labour Act 2004. An agent under exception (d) is not a worker for the purpose of the definition of worker under section 91(1) of the Labour Act.

 

  1. As it is, I reiterate that questions (1), (3) and (4) as posed by the claimants are incompetent and so cannot be considered in this judgment. There is a further issue that reinforces this conclusion. In Dmez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, relying on Bello v. Eweka [1981] 1 SC 101 andMotunwase v. Sorungbe[1988] 12 SC 1, Mohammed JSC held thus:

The Law on the requirement to plead and prove his claim for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is well settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendants, where Plaintiff fails to establish his entitlement to the declaration by his own evidence.

 

…………………………………………………….

 

…it has always been my experience and I believe it to be a long standing that the Court does not make declarations of rights either on admissions or in default of pleadings but only if the Court is satisfied by evidence.

Reliefs (1), (2) and (3) as prayed for by the claimants are declaratory reliefs. The supporting evidence for these reliefs is the bare affidavit in support of the originating summons, which as I indicated earlier has grey facts that cannot support this action. As held in Dmez Nig Ltd v. Nwakhaba & 3 ors, the claimants cannot succeed on the evidence of the defendants. They can only succeed on their own evidence, something that is just not sufficiently before the Court.

 

  1. The only valid question posed by the claimants is question (2) i.e. whether or not by the interpretation and construction of “worker” under section 91 of the Labour Act, the claimants and members of their class are employees of the defendant. Section 91(1) of the Labour Act in defining “worker” provides thus:

“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, but does not include-

(a) any person employed otherwise than for the purposes of the employer’s business; or

(b) persons exercising administrative, executive, technical or professional functions as publicofficers or otherwise; or

(c) members of the employer’s family; or

(d) representatives, agents and commercial travellers in so far as their work is carried on outside the permanent workplace of the employer’s establishment; or

(e) any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the articles or the material; or

(f) any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply.

 

  1. As can be seen, the definition of worker under section 91(1) is restrictive given the persons exempted in terms of paragraphs (a) to (f) of the definition. The point is that section 91(1) defines a worker only for the purposes of the Labour Act; as such, not all employees are workers for purposes of the Labour Act. The category of persons under paragraphs (a) to (f) of the definition of a worker may thus be employees but not workers for purposes of the Labour Act. Section 91(1) of the Labour Act defines a worker by reference to an employer i.e. as one who entered into or works under a contract with an employer. So, who is an employer? The same section 91(1) defines an “employer”to mean “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 the first-mentioned person and the personal representatives of a deceased employer”. The common denominator in the definition of a worker and an employer is the contract of employment. A “contract of employment”is thus defined by same section 91(1) to mean “any agreement, whether oral or written, express orimplied, whereby one person agrees to employ another as a worker and that other personagrees to serve the employer as a worker”.

 

  1. The employment contract yields to what is termed an employment relationship between the parties. What is an employment relationship? This is a question that has plagued the modern workplace so much so that even the International Labour Organisation (ILO) has a world of literature on it given the changing landscape of the world of work with its new forms of work. This Court is aware of this changing landscape in the world of work. In PENGASSAN v. Mobil Nig. Unltd [2013] 32 NLLR (Pt. 92) 243 NIC, this Court, referring to the ILO Report titled, The Scope of the Employment Relationship (ILO Office: Geneva), 2003 at pages 23 noted thus:

To the ILO –

The determination of the existence of an employment relationship should be guided by the facts of what was actually agreed and performed by the parties, and not by the name they have given the contract. That is why the existence of an employment relationship depends on certain objective conditions being met (the form in which the worker and the employer have established their respective positions, rights and obligations, and the actual services to be provided), and not on how either or both of the parties, describe the relationship. This is known in law as the principle of the primacy of facts, which is explicitly enshrined in some national systems. This principle might also be applied by judges in the absence of an express rule.

The ILO concluded by advising that the judge must normally decide on the basis of the facts, irrespective of how the parties construe or describe a given contractual relationship.

 

  1. And L & E Global’s publication titled, Employees vs Independent Contractors: Understanding the distinction between contractors and employees and the re-characterisation of a contractor into an employee (2017), has it, on the guiding principle in determining whether a relationship is one of an employee or an independent contractor at page 457 in the entry on the United Kingdom (a jurisdiction we share the common law tradition with),thus:

It is essential that the parties clearly define their relationship in writing to establish the individual’s status – whether that be the status of an employee, worker or self-employed contractor/consultant. The written terms will usually determine the true legal relationship between the parties. Nevertheless, if it is alleged that the written terms do not reflect the reality of the relationship, the tribunals will investigate allegations that the written terms are not representative of the actual terms agreed, and will determine the actual nature of the relationship between the parties.

 

The tribunal will examine the evidence of how the parties conducted themselves and what their expectations of each other were. The tribunal will ignore express contractual terms, which are inconsistent with the reality of the relationship between the parties. Furthermore, it does not matter that the parties did not intend to misrepresent the true nature of their relationship if it transpires that certain contractual terms were a sham. For example, in the leading case of Autoclenz v Belcher and others [2011] UKSC 41, workers who provided car valeting services under contract for a single client all signed agreements which expressly said they could provide substitutes and could refuse to work. On the face of it, these clauses indicated self-employment, but evidence showed that these clauses were never invoked. The tribunal examined the evidence and found that the actual legal obligations of the parties should be determined from all the evidence including the parties’ conduct and any written terms, and found that the individuals were in fact employees.

 

  1. The point from all of this is that the relationship between the parties is determinable based on the facts and on the principle of the primacy of facts. Express contractual terms may even be ignored if they are inconsistent with the reality of the relationship between the parties. Forms of work have changed and the traditional or orthodox distinctions between the worker/employee and the employer no longer exists or have been stretched to absurd limits. But all of this cannot be determined if there are no facts upon which the inquiry can be done as is the case in the instant suit. The claimants want this Court to rule that they are employees, but supplied insufficient facts and evidence for that determination given the nature of the relationship between the parties.

 

  1. Section 91(1) of the Labour Act 2004 defines worker to mean “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”. By this provision, a “person who has entered into or works under a contract with an employer” where “the contract…is…a contract personally to execute any work or labour” is a worker. To be specific, the language of section 91(1) when defining “worker” as to the nature of the contract is: “…whether it is a contract of service or a contract personally to execute any work or labour…” The use of the phrase “contract of service” is often used in contradistinction with “contract for service”. While the former is said to involve an employee, the latter is said to be that of an independent contractor. But is “a contract personally to execute any work or labour” not suggestive of an independent contractor as where a plumber is contracted to personally fix a burst pipe? I think so. So, are the claimants in the instant case contracted to personally execute any work or labour? This question can only be answered by reference to the facts brought before the Court, which I already indicated are insufficient as I will further show shortly.

 

  1. Meanwhile, the Supreme Court in Shena Security Co. Ltd v. Afropak (Nig.) Ltd & ors[2008] 4 – 5 SC (Pt. II) 117held a contract for the supply of security guards by the appellant to the 1st respondent in consideration of a monthly payment of an agreed amount per security guard to be a contract of service/employment. This conclusion was arrived at most likely given the definition of “recruiting” under section 91(1) of the Labour Act 2004, which provides thus:“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”. Is the holding of the Supreme Court suggestive that there are grey areas (borderline cases) where the distinction between employees and independent contractors may not be justified? I think so. For how else can a contract between two corporate entities to supply labour (security guards) be rationalized as one that is a contract of service i.e. a contract of employment? The Supreme Court then went on at pages 128 to 130 to lay down the factors that should guide courts in determining which kind of contract the parties entered into.The factors are:

(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. 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.

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

 

  1. Now what are the facts the claimants placed before the Court in order to determine if they are workers within the meaning of the term under section 91 of the Labour Act? The facts are as in paragraphs 4 to 11 of the affidavit in support of the originating summons, facts that I indicated earlier are insufficient; facts also that the 1st and 2nd defendants, for instance, denied in paragraphs 7 to 11 of their counter-affidavit thus putting the claimants to the strictest proof. To take just an example, the claimants in paragraph 3 of their affidavit in support averred that the defendants are limited liability companies engaged in the business of transportation related services and sundry matters, the key phrase being “business of transportation related services and sundry matters”. The 1st and 2nd defendants in denying this paragraph merely stated that “the 1st and 2nd Defendants do not engage in the business of transportation…” So while the claimants are talking of transportation related services, the 1st and 2nd defendants are denying being in the business of transportation. There is a world of difference between “transportation” and “transportation related services”. But it is for the claimants to prove to this Court what these related services to transportation are. And the claimants did not do this in terms of their affidavit evidence. In denying the averments of the claimants, what the defendants have done is to put the claimants to the proof of their averments. The choice of the claimants to do this vide affidavit evidence is accordingly not only ill-advised but completely inappropriate.

 

  1. A claim is circumscribed by the reliefs claimed; and the duty of a claimant, therefore, is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same So held the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47. I already held that by Dmez Nig Ltd v. Nwakhaba & 3 ors, the claimants cannot succeed on the evidence of the defendants;they can only succeed on their own evidence, something that is just not sufficiently before the Court. This means that the declaratory reliefs in terms of reliefs (1) to (3) cannot be granted given the insufficient facts/evidence advanced by the claimants in proof of same. I so hold.

 

  1. Relief (4) is for an order mandating the defendant to provide all relevant benefits, including but not limited to health insurance, pensions and other benefits to the claimants and members of their class. The claimants did not put before the Court the instrument that entitles them to health insurance and pensions; and they did not disclose what the “all relevant benefits” and “other benefits” they referred to are. This Court has consistently held that in labour relations, an employee can only claim if he/she shows an entitlement; andan entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employee and his/her employer. See Mr Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. I must state that section 91 of the Labour Act is the interpretation section of the Labour Act. An interpretation section of an Act does not grant an entitlement. It may explain the ambit of an entitlement, but certainly it does not primarily grant that entitlement. So asking whether the claimants are workers under a definition section does thereby grant an entitlement even if the answer were in the affirmative. Relief (4) cannot thus be granted since an entitlement to it has not been shown to this Court by the claimants.

 

  1. Relief (5) is for perpetual injunction restraining the defendant, its officers, from further denying liability for the claimants’ acts done in the course of their employ with the defendant. What are the acts done by the claimants for which the defendants are denying liability? This Court is not told. Relief (5) cannot thus be granted. Relief (6) is a neither here nor there relief praying for “such other consequential order(s) that this Honourable Court may deem fit to grant in the circumstance”. There is nothing consequential to grant.

 

  1. On the whole, the claimants did not prove their case. What the claimants put before the Court as their case is nothing but one that is in the main speculative, conjecture, academic and hypothetical. In Clement Abayomi Onitiju v. Lekki Concession Company Ltd unreported Appeal No. CA/L/686/2013, the judgment of which was delivered on 17th May 2016, the Court of Appeal found that the counterclaim of the cross-appellant was based on speculation and conjecture; and since courts do not speculate on possibilities but act on actualities, the Court of Appeal dismissed the cross-appeal on the counterclaim. In like manner, the instant suit being speculative, conjecture, academic and hypothetical, fails and so is hereby dismissed.

 

  1. Judgement is entered accordingly. I make no order as to cost.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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