IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA DIVISION
HOLDEN AT ABUJA.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated this 22nd day of May, 2018
SUIT NO: NICN/ABJ/05/2016
BETWEEN:
AYOADE OLATUBOSUN-ALAKIJA ——————————————-CLAIMANT
AND
THE INCORPORATED TRUSTEES OF OANDO FOUNDATION ———–DEFENDANT
Representation:
Olatunji Salawu with F.P. Chorio and Precious Olatunji-Olape for the Claimant
- Olaleru with S.O. Yahaya for the Defendant.
Judgment.
This suit was commenced via a Complaint filed on the 6th of January, 2016 accompanied by a statement of claim, statement of fact, witness statement on oath, list of witnesses, list of documents and copies of the listed documents. The suit was originally before Hon. Justice B.A Adejumo, President of this court before being assigned to this court in October, 2017.
The Claimant is through the Complaint and statement of facts claiming against the Defendant the following claims:
- A DECLARATION that the termination by the Defendant of the Claimant’s Consultancy Agreement/appointment is wrongful, unlawful, illegal and therefore ineffectual, null and void.
- AN ORDER directing the Defendant to immediately reinstate the Claimant back to her position as the CEO/Managing Director of Oando Foundation (the Defendant) with full benefits of her office as contained in the Consultancy Agreement.
iii. AN ORDER restraining the Defendant, by itself or through its agents from further witch-hunting, harassing, embarrassing the Claimant or interfering in any way, howsoever, with Claimant’s appointment as CEO/Managing Director of the Defendant;
- AN ORDER directing the Defendant to pay to the Claimant, forthwith, or as the Honourable Court may direct, the claims itemized herein totaling the sum of N15,314,952.10 as well as $188,000 (approximately N48,880,000.00 at N260 per $1 USD).
IN THE ALTERNATIVE:
- The sum of N8,750,000.00 (Eight Million, Seven Hundred and Fifty Thousand Naira), being the payment of three months’ salary in lieu of Notice of termination in accordance with the provisions of the Consultancy Agreement as well as Section 11 of the Labour Act, CAP L1, LFN, 2011.
- The sum of $18,000 (Eighteen Thousand US Dollars) per diem for 24 days spread between August and September, 2015 in respect of official meetings held on behalf of the Defendant in London.
vii. The sum of N410,000.00 (Four Hundred and Ten Thousand Naira) being the amount for the purchase of 1 “KeKe Napep” on behalf of the Defendant.
viii. The sum of N120,000.00 (One Hundred and Twenty Thousand Naira) being the cost of a smart phone device, an entitlement under the and as provided for in Clause 4.3.5 of the Contract Agreement.
- The sum of N753,387.10 (Seven Hundred and Fifty Three Thousand Three Hundred and Eighty Seven Naira, Ten Kobo) being the prorated unpaid salary for October, 2015.
- The sum of $20,000.00 (Twenty Thousand US Dollars) being the cost of air tickets and repatriation of Claimant’s personal effects to Fiji outside Nigeria.
- The sum of $20,000.00 (Twenty Thousand US Dollars) (or N5 million Naira at the current rate of N250 per $1) being the cost of hotel accommodation incurred after the embarrassing and forceful ejection of the Claimant from Oando Guest House in Abuja.
xii. The sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) being the amount illegally deducted from the salaries of Claimant as Value Added Tax by the Defendant on 21% basis instead of the government approved 5% Value Added Tax.
xiii. The sum of $150,000.00 (One Hundred and Fifty Thousand US Dollars) as special damages for the harassment, embarrassment and inconvenience caused the Claimant by the Defendant by the unlawful ejection by force from her accommodation at the Oando Guest Hotel at Maitama, Abuja on 9th October, 2015
xiv. The sum of N1,000,000,000 (One Billion Naira) as general and punitive damages for malicious breach of contract, unlawful detention and recanting of property, assault, harassment, stress and inconvenience.
- AN ORDER directing the Defendant to pay to the Claimant, forthwith, or as the Honourable Court may direct, the claims itemized herein totaling the sum of N15,314,952.10 as well as $188,000 (approximately N48,880,000.00 at N260 per $1 USD).
xvi. The cost of this action.
In response to the complaint, the Defendant filed a memorandum of appearance and a statement of defence on the 7th of March, 2016.the said statement of defence was accompanied by a list of witnesses, witness statement on oath, list of documents and copies of the said documents.
Upon the matter coming up for hearing, the Claimant herself was the only witness for her case. she adopted her witness statement on oath as oral evidence in chief and same was admitted and marked as C1. Through the Claimant, 6 documents were tendered, admitted in evidence and marked as Exhibit C2 – C7.
The highlight of the case of the Claimant gathered from the statement of claim, statement of material fact and witness statement on oath is that by a Consultancy Agreement dated (20th April,) 2015, she was appointed by the Defendant as a Consultant, CEO/Managing Director of the OANDO Foundation. As a result of the appointment, she had to relocate at great cost and inconvenience to Nigeria. However, the Defendant, without any reason, basis or justification, vide a letter dated 9th October, 2015, and captioned “SERVICES NO LONGER REQUIRED” purportedly, albeit illegally, unlawfully and wrongfully, terminated the Claimant’s appointment purportedly under Article 3.1 of the Consultancy Agreement.
The Claimant further alleged that as at the time of this purported termination of her appointment by the Defendant, she had unpaid expenses undertaken by her on behalf of the Defendant which have not been refunded up to the time of filing this suit including cost of purchase of 1 Keke Napep, mobile phone, prorated salary for October, 2015 and per diem for 24 days for attending official meetings in London. she also claimed she was not paid three months’ salary totalling N8,750,000.00 (Eight Million, Seven Hundred and Fifty Thousand Naira), in lieu of Notice of termination in accordance with the provisions of the Consultancy Agreement. She also claimed to be owed the cost of transportation tickets and other related expenses to transport her personal effects from the Republic of Fiji to Nigeria upon her appointment under the terms of engagement.
She claimed that upon the termination of her appointment, she was ejected from Oando Guest House in Abuja at about 8pm at night which forced her to source for funds that night to enable her move into an hotel where she incurred hotel bills totaling over N5million. Lastly, she claimed the Defendants have been deducting 21% of her salary as VAT rather than 5% contrary to the provisions of Personal Income Tax Act.
During cross examination, the Claimant stated that she did not at any time hire a private jet on behalf of the Foundation or anyone else. She stated that her relocation allowance from Fiji to Nigeria had been paid and it is not written anywhere that the Defendant will be responsible for repatriating her personal belongings back to Fiji. She said she was staying at Maitama now but not at Hilton because she has a place she can stay.
The Claimant stated in respect of an email she received from Wale Tinubu, that she was a Director with Oando Foundation and does not report to Wale Tinubu who sent her an emailasking her to accompany him to New York which she refused. She also stated during cross examination that she had made herself available to discuss her terminal benefits.
The defendant in opening their case called two witnesses who adopted their witness statements on oath which were marked as D1 and D2 respectively. Through DW1 (Adekanla Adegoke) one document was tendered and same was admitted and marked as Exhibit D1 (a)while through DW2 (Ima Ofulue), four documents were tendered, admitted and marked as Exhibit D2(a), D2(b), D2(c) and D2(d).
Arising from the statement of Defence and witness statements on oath, the highlight of the case for the Defendant is that the Claimant was not retained as the CEO/Managing Director of the Defendant and neither was the Claimant retained in her capacity as medical doctor. The Defendant maintained that the relationship between the Claimant and the Defendant is purely contractual where the Claimant was engaged strictly as a consultant in line with the consultancy agreement dated 30th April, 2015 (clause 17.0). Based on this, the Defendant contends that this court is not seized with jurisdiction to entertain this suit, same not being an employer-employee relationship. With respect to the claims made by the Claimant, the Defendant admitted that the Claimant is entitled to three months’ salary in lieu of notice which amounts to the sum of N7, 000, 000.00 (Seven Million Naira only) subject to deductions to be made as contained in the Claimant’s revised entitlement sheet and that the Claimant’s termination entitlement after deductions is the sum of N 2,714,752.18 (Two Million, Seven Hundred and Fourteen Thousand, Seven Hundred and Fifty Two Naira and Eighteen Kobo only) and USD4, 109.31 (Four Thousand, One Hundred and Nine Dollars and Thirty-One Cents only) (as computed in the Claimant’s revised entitlement sheet). With respect to the per diem for 24 days, the Defendant maintained that the Claimant did not obtain the requisite approval and only 8 days was approved and the cost of same have been computed in her entitlement sheet.
The defendant added that the Claimant also incurred unauthorised additional expenses on the Defendant’s credit card and hotel bills during her stay at the Sofitel Rabat Jardin des Roses hotel in Morocco which both amount to the sum of $1, 890.69 (One Thousand, Eight Hundred and Ninety Dollars and Sixty-Nine Cents only) which the Defendant has had to deduct from the Claimant’s termination entitlement as they remained unsettled.
With regards to 1 KekeNapep, the Defendant averred that although the Claimant did not also comply with the laid down procedure of the Foundation in purchasing the ‘KekeNapep’, the Defendant upon confirmation of the purchase, took the decision to reimburse the Claimant this expense.
With regards to the mobile phone, the Defendant averred that the Claimant under the Consultancy Agreement is entitled to the said smart phone device but she never submitted any receipts/invoices in support of purchase of same consequent upon which no refund was made to her.
With regards to the protracted entitlement for the month of October 2015, Defendant avers that same has been incorporated in her revised termination entitlement sheet, which she has failed to sign till date.
With regards to relocation allowance, the Defendant averred that in accordance with the consultancy agreement, the Defendant does not owe the Claimant any obligation to purchase a one — way ticket nor to repatriate the Claimant’s personal belongings outside the country.
The defendant also denies Claimant’s claim with regards to being ejected from the Oando guest house that rather, she was refused access upon her refusal to comply with the instruction not to embark on the trip to Abuja and consequently, her decision to lodge in a 5 star hotel after her contract had been terminated is unreasonable. The Defendant also added that the Claimant’s personal belongings at the Oando Guest House have always been available for her to retrieve subject to the Foundation’s appropriate security policies being adhered to but the Claimant has not made herself available to retrieve the said belongings for reasons best known to her.
The Defendant also claims that the Claimant has failed, refused and neglected to return the official laptop given to her by the Foundation which was later replaced with a Microsoft Surface Pro consequent upon which the cost of same has been deducted from her entitlement. The Defendant claims all the deductions in the entitlement of the Claimant is justified and denies all the heads of claim of the Claimant.
Upon the close of case, learned Counsel to the Defendant filed a written address on the …. And adopted same. Arising from the Final Written Address, learned counsel foremost addressed the issue of jurisdiction to the effect that this court lacks the jurisdiction to entertain this suit. the issue formulated in that regard is to wit:
whether this Honourable Court has jurisdiction to adjudicate over the instant suit as constituted which is clearly not a labour or employment related matter but a matter of the interpretation of the Consultancy agreement Exhibit C2.
In arguing this issue, learned counsel to the Defendant, A. Olaleru referred this court to section 7 of the National Industrial Court Act and section 254C of the Constitution of Federal Republic of Nigeria 1999 (as amended) to restate the jurisdiction of this court. Counsel further contended that in that regard, parties are bound by their pleadings and drew the attention of this court to the claims of the Claimant as submitted in the statement of claim. Counsel cited the case of Mbanefo v Molokwu (2014) 6 NWLR (Pt. 1403) p.377.
Counsel also referred to relevant paragraphs from the statement of claim and also to clause 17.0 of Exhibit C2 (Consultancy Agreement) tendered by the Claimant. Upon that, learned counsel argued that jurisdiction is determined by Claimant’s claim citing the case of Ahmed v Ahmed (2013) 15 NWLR p.274. He also argued that jurisdiction cannot inhere in a court for the sake of convenience citing the case of Roda v F.R.N (2015) 10 NWLR (pt.1468) p427.
Counsel urged the court to treat the issue of jurisdiction because without it the court acts in vain and courts do not set out to act in the matter of futility. He cited the case of C.P.C v Orhiowasele (2013) 13 NWLR S.C 211.
Learned counsel further referred this court to the cases of Coca Cola Nigeria Limited v Akinsanya (2017) 17 NWLR pg.74 at 127 to argue that the court is not to bring to bear personal feelings and prejudices in interpreting a statute therefore a court cannot extend its jurisdiction without the express fiat of the Legislature.
Based on the above, counsel submitted that a perusal of the Constitution of the Federal Republic of Nigeria and the National Industrial Court Act would reveal that the jurisdiction of the National Industrial Court of Nigeria (this Honourable Court) DOES NOT include adjudication over cases relating to an independent contractor under a consultancy agreement such as Exhibit C2 upon which the Claimant’s case is premised.
Counsel concluded by referring to section 91 of the Labour Act to maintain that what is before the court is not a contract of employment and therefore strips this court of jurisdiction.
In reaction to the objection on jurisdiction, Counsel to the Claimant, Olatunji Salawu, conceded that Courts are creation of statute and they derive their powers and Jurisdiction either under the Constitution, and or under specific statutes. He cited the cases of ADETAYO v. ADEMOLA (2010)15 NWLR (PT.1215) 169 and S.P.D.C. N. LTD v. ANARO (2015) 12 NWLR (PT.1472) 122 at 185-186 PARAS H-A. Counsel also referred to section 254C of the Constitution of Federal Republic of Nigeria 1999 (as amended) and section 7 of the National Industrial Court Act.
Learned Counsel invited the court to consider the meanings of ‘Labour’ and ‘Employment’ as stated in the case of COCA-COLA v. AKINSAYA (2013) 18 NWLR (PT.1386), 255 at 372, paragraphs C-E where the court held thus:
“The word ‘employment’ is not defined in the Third Alteration Act. Its ordinary meaning, however is “work, especially when it is one to earn money” (see Oxford Advanced Learner’s Dictionary (7th Edition) 479). Further, the word Labour grammatically and literally means ‘work’ and the word ‘labourers’ extracted from the word ‘labour’ means people who work or available for work in a country or a company (see Oxford Dictionary (supra) on page 823). The key word in the definition of ‘employment’ is thus ‘work’ which means to do something that involves physical and mental effort, especially as part of a job; while the word ‘job’ means work for which one receives regular payment (see Oxford Dictionary (supra) 1696 (work) and 799 (job) respectively) “.
Counsel also referred to the case of SHENA SECURITY CO. LTD VS AFROPAK (NIG) LTD (2008)18 NWLR), (PT.1118) 77 at 94 PARAS C-E and reproduced the criteria for determining contract of service or labour as stated by the court at pages 94-95 paragraphs E-C. Counsel added that the criteria are not conjunctive and the presence of one or more in the instant case will suffice.
Counsel further contended that the consultancy agreement was entered into between the parties for the retention of the services of the Claimant, to be rendered to the Defendant as contained in the recital to the agreement and also, Clause 2.1 and 2.2. He then submitted that in applying the above principles, the “Consultancy Agreement” (Exhibit C2) irrespective of its nomenclature, is a contract of employment which falls squarely under labour and employments matter within the exclusive jurisdiction of this Honourable Court.
Counsel also referred to the International Labour Organization (ILO) in its official papers at the International Labour Conference 91st Session, 2003 contained in the REPORT V. titled, “The Scope of the Employment Relationship” (ILO Office: Geneva), 2003, Chapter II: Disguised and Objectively Ambiguous Employment Relationship, at page 23 and submitted that the ILO concluded by advising that the Judge in Labour dispute must normally decide on the basis of the facts, irrespective of how the parties construe or describe a given contractual relationship.
Learned counsel submitted in conclusion that in the instant case, the relationship between the Claimant and the Defendant as indicated constitute a labour and employment relationship, having satisfied the criteria listed in SHENA SECURITY CO. LTD V. AFROPAK (NIG) LTD (SUPRA). He cited instances to the effect that Clause 4.1 of the “Exhibit C2” provided that payments are to be made by way of monthly remunerations. Secondly, it is the Defendant as the employer who supplies the tools and capital equipment, for the services provided by the Claimant (Clause 4.3). This is coupled with the facts the Defendant provided for the Claimant’s office accommodation and a secretariat. Furthermore, the Claimant is prohibited from delegating or assigning her duties under Clause 11.1 of the “Exhibit C2”.The said Agreement in Clause 4.3.7 also provides for a leave of 30 working days with pay in a calendar year.
Counsel urged the court to dismiss the preliminary issue of jurisdiction in its entirety.
Arising from the issue raised and argument of both Counsel, the issue for determination with regards to the preliminary issue of jurisdiction of this court is to wit:
Whether considering the facts of this case, this suit is not one of contract of consultancy agreement thereby robbing this court of jurisdiction.
With respect to this issue, the Supreme Court held in OBIUWEUBI V. CENTREL BANK OF NIGERIA (2011) 7 NWLR 465 held that:
“Jurisdiction is a threshold matter. It is very fundamental as it goes to the competence of the Court to hear and determine a suit. Where a court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would amount to a nullity. It is thus mandatory that courts decide the issue of jurisdiction before proceeding to consider any other matter. See: Bronik Motors Ltd and another v Wema Bank Ltd. 1983 1 SCNLR p.296; Okoya v. Santilli 1990 2 NWLR Pt.131 p. 172; Madukolu v Nkemdilim 1962 1 ANLR Pt.1 p.587.” Per Rhodes-Vivour, J.S.C.(P. 23, paras. B-E)
Is also a long settled law that a court is said to have jurisdiction and therefore competent to determine a suit when:
- a)It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other.
- b)The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction, and
- c)The case comes before a court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See MADUKOLU v. NKEMDILIM (1962) 3 SCNLR 34
These pre-conditions are conjunctive and the non-fulfilment or absence of any of them automatically robs the court of jurisdiction to hear and determine the suit.
The question that necessarily follows is which of the conditions have been called to question by the Defendant in this instance? Learned counsel to the Defendant, Abiodun Olaleru contended that going by the provisions of section 254C of the Constitution of Federal Republic of Nigeria 1999 and section 7 of the National Industrial Court Act, this court is not the proper court before which this action should be instituted same not being a contract of employment within the above provisions. This presupposes that the second pre-condition laid down in Madukolu v Nkemdilim (Supra) is in question. i.e. (i) whether the subject-matter of the case is within the jurisdiction of this court, and (ii) whether there is no feature in the case which prevents this court from exercising its jurisdiction.
It is imperative to address these questions owing to the importance of the issue of jurisdiction as the court in National Electric Power Authority v Mallam Auwal (2010) LPELR-4577 (CA) held that:
“it is now well settled that the issue of jurisdiction is the bedrock of adjudication in Nigerian courts and I dare say in courts worldwide. Whether a court has or does not have jurisdiction is a threshold issue and is of the greatest importance in all manner of litigation before our courts. Whenever the question as to whether a court has or does not have jurisdiction is raised, it must be looked into first at the earliest opportunity depending on the particular proceeding. This is so because any proceeding before a court, no matter how well conducted without jurisdiction, is a nullityand the outcome thereby has no legal consequence whatsoever. Therefore, at any stage the issue of jurisdiction is raised, the court is duty bound to consider it timeously before taking any further step in the matter” Per Okoro JCA.
In answering these questions therefore, it is settled that the process to put into consideration in order to ascertain the jurisdiction of the court is the statement of claim of the Claimant. The court in A.G., Anambra State v. A.G., Fed. (2007) 12 NWLR (Pt.1047) held that:
“It is settled law that for the purpose of determining whether a court has the requisite jurisdiction to entertain a matter before it, it is the duty of the court to look at the statement of claim where one is required and had been filed and take the documents therein contained as true ex facie: see Adeyemi v. Opeyori (1976) 9-10 SC 31. In the instant case, no statement of claim is required and none was filed. The relevant documents or processes therefore that need to be looked at in determining the issue are the originating summons and the affidavit in support of same.” Per ONNOGHEN, J.S.C. (Pp. 91-92, paras. E-A).
It is also reiterated that Jurisdiction is fundamental and it is determined by the pleadings filed by the plaintiff and the claim he seeks. See GOLDMARK NIGERIA LTD & ORS.v. IBAFON COMPANY LTD & ORS.(2012) LPELR-9349(SC).
In the light of the above, I take a second look at the statement of Claim as filed by the Claimant and for emphasis, I reproduce some relevant paragraphs which reads:
(4) By a Consultancy Agreement dated 20” April 2015, the Claimant was appointed by the Defendant as a Consultant CEO/Managing Director of the OANDO Foundation. As a result the Claimant had to relocate at great cost and inconvenience to NIGERIA. The Consultancy Agreement is hereby pleaded and shall be relied upon at trial.
(5) The Defendant, without any reason, basis or justification, vide a letter dated 9th October, 2015 and captioned “SERVICES NO LONGER REQUIRED” purportedly, albeit illegally, unlawfully and wrongfully terminated the Claimant’s appointment purportedly under Article 3.1 of the Consultancy Agreement. The letter is hereby pleaded and shall he relied upon at trial.
(7) The payment of three months’ salary totalling N8,750,000.00 (Eight Million, Seven Hundred and Fifty Thousand Naira), in lieu of Notice of termination in accordance with the provisions of the Consultancy Agreement as well as Section 11 of the Labour Act, CAP L1, LFN, 2004 has not been paid by the Defendant to the Claimant.
The other significant proportions of the statement of claim had to do with the various sums the Claimant claims she is entitled to and how those sums came about.
I have also considered the claims of the claimant as produced above. The most poignant of the contention of the Defendant in raising this objection is that the relationship between the Claimant and the Defendant is one predicated on a consultancy agreement which is not a contract of employment. The defendant also drew the attention of the court to the consultancy agreement tendered and admitted in evidence as Exhibit C2 by the Claimant. The Claimant referred to the consultancy agreement in the above quoted paragraph 4 of the statement of claim and relied on same in the course of trial. This is the only document which this court has to consider in determining whether there is a contract of employment between the Claimant and Defendant. There is no letter of employment properly so called, neither is there a condition of service.
In Oweniwe & Anor v Union Dicon Salt Plc. (2014) 48 NLLR (Pt.159) 649 NIC at 656, it was held that: “it is a settled principle of law that courts are creation of statutes and it is the statute that created a court that will also confer on it, its jurisdiction. This court is subject matter based and governed by section 254C of the 1999 Constitution of Federal Republic of Nigeria (as amended).
While both parties are in accord as to the fact that this court is created to entertain labour related and employment related cases as both counsel had rightly cited section 254C of the Constitution of Federal Republic of Nigeria and a Section of the National Industrial court Act, 2006, what is in contention between counsel to the parties is whether what existed between the parties is one of contract of employment which this court has jurisdiction to entertain or mere consultancy agreement which falls within the realm of simple contract and therefore outside the jurisdiction of this court.
There is no gainsaying that there are times when it is unclear whether employment relationship exists between parties. Learned counsel to the Claimant did well to proffer before this court the holding of the court in SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS. (2008) LPELR-3052(SC) where the Supreme Court provided the meaning of contract of employment thus:
“A contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. That is by the definition of the Labour Act (Cap. 198) LFN, 1990 which applies to workers, strictly defined to the exclusion of the management staff. A worker is defined by the Labour Act as any person who has entered into or works under a contract with an employer whether oral or written and whether it is a contract of service or a contract personally to execute any work or labour (section 91 of the said Act). This contract is commonly referred to as “Contract of Service.” But where the contract allows the contractor to work for people other than the employer, on the other hand, these are persons referred to as independent contractors or self -employed.”
The court went further to state that where there is a dispute as to which kind of contract the parties enter, there are factors which usually guide a court of law to arrive at a right conclusion and they 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 alike manner, where payment is by way of commission only or on the completion of the job, that indicates that the contract is for service.
[b] Where the employer supplies the tools and other capital equipment there is a strong likelihood that the contract is that of employment or of service. But where the person engaged has to invest and provide capital for the work to progress that indicates that it is a contract for service.
[c] In a contract of service/employment it is inconsistent for an employer to delegate his duties under the contract. Thus, where a contract allows a person to delegate his duties thereunder, it becomes a contract for services.
[d] Where the hours of work are not fixed it is not a contract of employment/of service. See: Milway (Sourthern) Ltd. v. Willshire (1978) 1 RLR 322
[e] It is not fatal to the existence of a contract of employment/of service that the work is not carried out on the employer’s premises.However, a contract which allows the work to be carried on outside the employer’s premises is more likely to be a contract for service.
[f] Where an office accommodation and a secretary are provided by the employer, it is a contract of service/of employment.
I must of necessity state clearly that the above case share a distinguishing element with the present suit as this suit has a document guiding the relationship between the parties while the cited case is predicated on an oral agreement.
Having said that, learned counsel to the Claimant submitted that the factors are disjunctive and one or more would be enough to sway the court in determining that the contract between the parties is one of service, labour or employment. He also cited examples of how he perceived the factors to be present.
I have earlier stated that the only document before this court in terms of the relationship between the parties is Exhibit C2 which is the Consultancy agreement. The said document shall be of significance in making a clear exposition of the above factors to see whether considering the facts before this court, one or more of the factors are present. However, before I proceed on such exposition, it is of importance that I take into account the contention of the Counsel to the Defendant, Abiodun Olaleru, who drew the court’s attention to clause 17.0 of the said consultancy agreement. The clause is captioned “Independent Contractor” and provides thus:
“The Consultant is and shall at all times be an independent contractor and shall not be considered to be the agent or employee of the Foundation for any purpose whatsoever. Nothing in this Agreement shall be construed to create a relationship of partners, joint ventures, fiduciaries or any other similar relationship between the parties.”
This clause raises a further question of whether in the face of it, the court needs to further inquire into the nature of relationship between the parties, same having been expressly stated and agreed upon in the consultancy agreement. In this regard, there are plethora of authorities that suggest otherwise as the court in Adetoun Oladeji (Nig.) Ltd. v. N.B. Plc (2007) 5 NWLR (Pt.1027) 415 held that :
“Where there is a contract regulating any arrangement between the parties, the main duty of the court is to interpret that contract to give effect to the wishes of the parties as expressed in the ‘contract’ document.” Per TOBI, J.S.C.(P.14, paras. C-D)
In more instructive terms, the court in INTERCONTINENTAL BANK PLC.v. HILMAN& BROS WATER ENGINEERING SERVICES NIGERIA LIMITED(2013) LPELR-20670(CA)held that:
“It is manifest from the authorities cited above therefore that in law, a written agreement or contract entered into by the parties thereto is binding on them. Accordingly, where there is any disagreement between the parties on a particular point, the only reliable evidence for the resolution of the disagreement or conflict is the written contract document of the parties. The Court will then construe the document in order to find out the intention of the parties as stated in the terms of the contract. In the resolution of the dispute between the parties, the court is not allowed to go outside the contract document in search for an answer, but must give effect to the intention of the parties clearly expressed in the written agreement or contract. See UNION BANK OF NIG.PLC v. AJABULE (2012) ALL FWLR (Pt. 611) p. 1413 at 1438.”Per TSAMMANI, J.C.A. (Pp. 25-26, Paras. E-A)
In Yadis Nig. Ltd v. G.N.I.C. Ltd (2007) ALL FWLR (Pt. 370) 1348 at 1371 Paras.D – E,1371-1373 Paras. E – D (SC) the court also posited that:
“Where parties are ad idem on the terms of a contract, the function of the court is to give effect to the terms without more as it is the duty of the court to give effect to the intention of the parties”. Per Onnoghen JSC.
Furthermore, in BABATUNDE& ANOR V. BANK OF NORTH LTD. & ORS. (2011) LPELR-8249(SC) the supreme court stated that:
“In the interpretation of contractual transaction, court will always hold parties bound by the terms of their agreements when construed according to the strict, plain and common meaning of the words in the instrument as they stand. Solicitor-General Western Nigeria v. Adebonojo (1971) 1 All NLR pg.178.U.B.N. v. Ozigi (1994) 3 NWLR (pt.333) pg.385.”PER ADEKEYE, J.S.C (P.46, Paras. A-B)
Earlier before the above positions, the Supreme Court reckoned in U.B.N. v. Nwaokolo (1995) 6 NWLR (Pt.400) 127 that:
“…it is settled that in construing a document, reference cannot be made to previous negotiation, nor can the words of the written agreement be affected by the conduct of the parties before or after execution of the agreement. Indeed, it is an established canon of interpretation that the instrument must be construed as at the time of its execution and nothing more.” Per ONU, J.S.C. (P. 11, Paras. F-G)
The above judicial authorities have statutory backing as provided by section 128 of the Evidence Act 2011 which states that:
(1)When a judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.
The statutory provision though admits of some exceptions which the Claimant has not brought before this court in the instant suit.
Before I conclude on this issue, I must add that upon the Claimant stating via paragraph 1 and 3 of the statement of claim that she was appointed as a consultant, CEO/Managing Director of the Defendant pursuant to the Consultancy agreement, I have perused the consultancy agreement and cannot find such appointment as CEO/Managing Director.
Consequent upon the above authorities, it is the finding of this court that the relationship between the parties is unambiguous, same having been clearly stated in the consultancy agreement between the parties that the Claimant is an independent contractor. What all that means is that the independent contractor by their nature and structure renders contract for service.
Consequently, the consultancy agreement does not create an employer-employee relationship and the termination by the Defendant of same is to be treated as a breach of contract simlicita. A contract for service is but an example of contracts in general and the general law of contract applies. See. Nwobozi v State (1995) LPELR-2121 (SC)
In that light, this court resolves the issue in favour of the Defendantand holds that the agreement between the parties makes the Claimant an independent contractor as evident from the provisions of Exhibit C2, the result of which is that the subject matter of this suit is not one of which the court has jurisdiction to entertain by virtue of section 254C of the Constitution Federal Republic of Nigeria 1999 (as amended).
Generally, where the court finds that it lacks jurisdiction, the appropriate order to make is to strike out the suit. see A.G., LAGOS v A.G., FEDERATION (2014)9 NWLR (1412) 231. However, the peculiarity of the instance in which this court lacks jurisdiction is that considering the circumstances of the case, the matter ought to be heard by the High court of the appropriate state where the facts of the case accrued and in that regard, this court is enjoined not to strike out the suit but to transfer same to the appropriate court. See section 24 (2) of the National Industrial Court Act, 2006.
Consequently, I have taken into account the fact that the Defendant has its head office in Lagos state upon which I hereby order that this suit be transferred to theHigh Court of Lagos statefor adjudication.
Judgment is entered accordingly.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
JUDGE.
