LUCK GUARD LTD v. ADARIKU & ORS
(2022)LCN/17034(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, December 15, 2022
CA/A/1061/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
LUCK GUARD LIMITED APPELANT(S)
And
1. MR. FELIX ADARIKU (SUING FOR HIMSELF AND 267 DISENGAGED SERVICE CONTRACT PERSONNEL OF TOTAL E & P NIG. LIMITED) 2. TOTAL E & P NIGERIA LIMITED 3. EASTBAY TRADE AND LOGISTICS LIMITED 4. GOBIN SECURITY LIMITED 5. FABOM VENTURES NIGERIA LIMITED 6. PROVAST LIMITED RESPONDENT(S)
RATIO
THE POSITION OF LAW ON VAGUE AND UNREASONABLE GROUNDS OF APPEAL
In this preliminary objection, the crux of the complaint is that the grounds of appeal in the notice of appeal are vague and unreasonable. Vague and unreasonable grounds of appeal from our established principles of law are those grounds of appeal couched in a manner which does not provide any solid or explicit standard for it to be understood. An illusive complaint which is lacking in depth and is more windy, evasive, ambiguous, debatable, disputable and inexplicable. See the cases of Set Success Ent.& Co., Ltd v. Ibeju-Lekki Local Government (2021) LPELR — 56608 (SC), Adamu v. C.O.P. Plateau State Command (2020) LPELR – 51956 (CA) and the case of Hassan v. Buhari & Ors., (2022) LPELR – 56677 (CA), where this Court per Abiru, JCA, explained what constitutes a vague ground of appeal, as follows:
“Now, a ground of appeal is said to be vague and imprecise when it is couched in a manner which does not provide any explicit standard for its being understood or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant – Central Bank of Nigeria v. Okojie (2002) 8 NWLR (Pt. 768) 48, Governor, Ekiti State v. Osayomi (2005) 2 NWLR (Pt. 909) 67, Imam v. Sheriff (2005) 4 NWLR (Pt. 914) 80 and Nwabueze v. Nwora (2005) 8 NWLR (Pt. 926) 1. In other words, where the complaint in a ground of appeal is discernible vis-a-vis the judgment of a lower Court, the ground of appeal cannot be said to be vague or imprecise”. PER ADAH, J.C.A.
THE POSITION OF LAW ON ISSUES FOR DETERMINATION
In considering which of the issues are necessary for the determination of this appeal, it needs be noted again that our appellate procedure evolved the framing of issues from grounds of appeal to narrow down and simplify the controversy raised in the entire appeal. In the case of Olafisoye v. FRN (2004) LPELR-2553 (SC), the Supreme Court per Tobi, JSC, held that:
“An issue is the question in dispute between the parties necessary for the determination of the Court, see Chief Ejowhomu v. Edok-Eter Mandalis Limited (1986) 5 NWLR (Pt. 39) 1. An issue which is usually raised by way of a question is usually a proposition of law or fact in dispute between the parties, necessary for the determination by the Court; a determination of which will normally affect the result of the appeal. See Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417. Issues for determination of appeal, are short questions raised against one or more grounds of appeal and are meant to be a guide to the arguments and submission to be advanced in support of the grounds of appeal. It is a succinct and precise question either of law or of fact for determination by the Court, see Imonikhe v. The Attorney-General of Bendel State (1992) 6 NWLR (Pt. 311) 370. An issue is a disputed point or question to which parties in an action have narrowed their several allegations and upon which they are desirous of obtaining either decision of the Court on question of law, or of the Court on question of fact. See Chief Okoromaka v. Chief Odiri (1995) 7 NWLR (Pt. 408) 411”. PER ADAH, J.C.A.
WHETHER OR NOT THE COURT AND PARTIES ARE BOUND BY THEIR PLEADINGS
The law is settled now that the Court and the parties are bound by their pleadings. In the case of Osondu Co Ltd. & Anor v. Akhigbe (1999) LPELR – 1433 (SC), the Supreme Court per Uwaifo, JSC, held as follows:
“It must be realized that pleadings is a statement of candour as to what a party to a case relies on to prove or defend a cause. It ought to be made as clear as it possibly can, not evasive or misleading or ambiguous. Each party must endeavor to place and must be presumed to have placed, all necessary pleadable acts on record the best way it can in order to achieve the best of its case. It must put the other party and the Court on a firm understanding of what the issues joined or denied, or issues admitted or not admitted. Pleadings are the guiding light by which all concerned trace the path to the justice of a case. That path should not be hampered by and littered with stumbling blocks of uncertainties, misrepresentations and ambushes embedded in the averments. That will be an effort to spring surprises and will not be proper pleadings. As was said by Phillimore J., in The Why Not (1888) LR 2A & E. 265 and quoted with approval in Enwezor v. Central Bank of Nigeria (1976) 3 SC 45 at 56 Per Madarikan, JSC, pleadings “…are not to be considered as constituting a game of skill between the advocates. They ought to be so framed as not only to assist the party in the statement of his case but the Court in its investigation of the truth between the litigants.”
The basic law is that parties are bound to plead all facts they intend to rely upon at the trial and facts not pleaded will go to no issue. One rationale behind this principle is that litigation must follow some restrictive order and not open-ended in order to save the time of both the Courts and the litigants. If the procedure of pleadings was not introduced in litigation, parties search for evidence could not have ended and that should have protracted litigation beyond expectation.
The law simply put, is that litigation is fought on pleadings. The pleadings define the parameters of the case and they give notice of the case to the other party. Any evidence led must be within the circumference of the facts pleaded. Pleadings in that wise, must not be deficient of the facts required to build up the case. PER ADAH, J.C.A.
THE POSITION OF LAW ON LETTER OF EMPLOYMENT
In Labour Law, it is very significant to know that the contract of employment binding the employer and the employee is normally outlined in a Letter of employment/appointment. In the case of Organ & Ors. v. Nigeria Liquefied Natural Gas Ltd., & Anor (2013) LPELR – 20942 (SC), the Supreme Court emphatically held as follows:
“The letter of employment is the bedrock on which any of the appellants can lay claim to being employees of the respondent and without the production of such a document, no employment can be inferred. The Employees’ Handbook issued by 1st Respondent is not a substitute for the letter of employment”. PER ADAH, J.C.A.
THE POSITION OF LAW ON DECLARATORY RELIEFS
Furthermore, all the reliefs claimed are declaratory reliefs. A declaratory relief implies a declaration by the Court of the action, cause or right of the parties before the Court. It is the law that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by a person seeking the declaratory relief. See Anyanru v. Mandilas Ltd (2007) 4 SCNJ and Chukwumah v. S.P.D.C (Nigeria) Ltd., (1993) LPELR – 864 SC.
It invariably therefore means that a declaratory relief cannot be granted in the absence of any evidence or where the evidence led is unsatisfactory. A declaratory relief such as what was sought by the plaintiff is discretionary. If a substantial question exists to which one person has a real interest to raise, and the other to oppose, then the Court has a discretion to resolve it by a declaration which it will exercise if there is a good reason for so doing. It is the form of judgment which should be granted only when the Court is of the opinion that the party seeking it is, when all facts are taken into consideration, fully entitled to the exercise of the Court’s discretion. The power of the Court to make a declaration where it is a question of defining rights of two parties is only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide. See Ibeneweka v. Egbuna & Ors., (1964) 1 WLR 210. PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court, Abuja, delivered on 26th October, 2018, in Suit No. NICN/ABJ/110/2016.
The 1st Respondent as claimant instituted this action before the trial Court and claimed against the appellant and the 2nd -6th Respondents as Defendants all the sundry reliefs as per the Amended Complaint and statement offsets, thus:
a. A Declaration that the 1st Defendant is the employer of the Claimants.
b. A Declaration that the failure of the 1st Defendant to issue the claimants a written statement containing the particulars of their employment within 3 months of resumption of their employment is unlawful and an unfair labour practice, contrary to global best practices and international labour standards.
c. A Declaration that the policy of the 1st Defendant to interview and employ employees and thereafter contract and interpose intermediaries in the persons of the 2nd to 6th Defendant and other such entities on the employees as their employers is unlawful and an unfair labour practice, contrary to global best labour practices and international labour standards.
d. A Declaration that the purported “handover” of the claimants to 3rd party intermediaries and their “rollover” from such 3rd parties to several other such intermediaries who front as their employers is unlawful and an unfair labour practice, contrary to global best labour practices and international labour standard.
e. A Declaration that all documents purportedly issued by the 2nd – 6th Defendants including employment and termination letters are all unlawful and null and void and of no effect whatsoever.
f. A Declaration that the 1st Defendant’s decision to prevent the claimants from being unionized is unlawful and an unfair labour practice, contrary to global best labour practices and international labour standard.
g. A Declaration that the Local Technical Assistance Services Grid of Rates for 2013 and the conditions for service for contract service personnel 2013 are valid and binding on the labour relationship between the 1st Defendant and the Claimants.
h. A Declaration that the 1st Defendant’s decision to resile from the Local Technical Assistance Services Grid of rates for 2013 and the conditions of service for contract service personnel 2013 promised the claimants as a condition for not permitting their unionization is a gross violation and breach of the terms of the employment relationship between the claimants and the 1st Defendant and also an unfair labour practice, contrary to global best labour practices and international labour standards.
i. A Declaration that the short payment of remuneration and non-payment of allowances and bonuses to the claimants in accordance with the Local Technical Assistance Services Grid of Rates for 2013 and the conditions of service for contract Service personnel 2013 is a gross violation and a breach of the terms of the employment relationship between the Claimants and the 1st Defendant and an unfair labour practice, contrary to global best labour practices and international labour standards.
j. A Declaration that the way and manner in which the employment of the claimants were purportedly terminated infers redundancy and that same amounts to wrongful/unlawful termination.
k. An Order directing the Defendants jointly and severally to pay to the Claimants the sum of:
i.) N5,709,868,362 Representing damages for the shortfall in remuneration paid to them from January 2013 to September 2015 when their employment with the 1st Defendant was wrongfully/unlawfully terminated.
Ii.) N581,928,810 Representing damages for unpaid allowances and bonuses including particularly, leave allowance, Christmas bonus and overnight allowance from January 2013 to September 2015 when their employment with the 1st Defendant was wrongfully/unlawfully terminated.
iii.) N3,425,245,920 representing eighteen (18) months gross remuneration as terminal benefits.
iv.) N4,566,994,560 representing two (2) years gross remuneration as damages for wrongful/unlawful termination of their employment.
v.) N100,000,000,000 Representing sundry unliquidated allowances denied the claimants throughout the course of their employment including particularly, shock Allowance, Handshake Allowance, and the cumulative shortfall of wages and allowances paid to the claimants since inception of their employment till December 2012 as well as general, aggravated, exemplary and punitive damages for unfair labour practices.
vi.) 10% Post Judgment interest on the judgment sum from judgment date until final liquidation.
OR IN THE ALTERNATIVE TO PRAYER J (I) – (IV) ABOVE
a. An Order directing the Defendants jointly and severally to compute and render account for –
i) The differences between the claimant’s remuneration as provided in the Local Technical Assistance Services Grid of rates for 2013 and all actual remunerations paid to the claimants for the periods of January 2013 to September 2015.
ii) The unpaid allowances and bonuses due to the claimants as provided in the Local Technical Assistance Services Grid of Rates for 2013 and the conditions of Service for contract Service personnel 2013 for the periods of January 2013 to September 2015.
iii) Eighteen (18) months gross remuneration as terminal benefits based on the claimant’s wage rate as provided in the Local Technical Assistance Services Grid of rates for 2013.
iv) Two (2) years gross remuneration as damages for wrongful/unlawful termination of the claimant’s employment based on the claimant’s wage rate as provided in the Local Technical Assistance Services Grid of Rates for 2013.
The 1st and 6th Defendants, now 2nd Respondent and Appellant denied the claims of the 1st Respondent vide their Statement of Defence filed separately on the 15th November, 2016, and 4th July, 2017 respectively. The 3rd, 4th, and 5th Respondents did not file anything at the lower Court.
At the trial, the claimant called five (5) witnesses and tendered several exhibits which were admitted and marked. The 1st Defendant called one witness and tendered two (2) exhibits which were admitted and marked. The 6th Defendant called nine (9) witnesses and tendered several documents in exhibit which were admitted and marked exhibits D12-D37.
The parties joined issues and the lower Court on the 26th October, 2018 entered judgment for the claimant now 1st Respondent, granting reliefs A, B, G, I, L and partly granting reliefs J. while dismissing reliefs C, D, E, F, H and K.
Aggrieved by the said decision, the appellant filed this instant appeal vide the Notice of appeal filed on the 28th October, 2020. There are seven grounds of appeal listed in the notice of appeal. The Record of Appeal was transmitted to this Court on the 3rd December, 2020.
PRELIMINARY OBJECTION:
The 1st Respondent filed a Notice of Preliminary Objection. This objection was moved before the substantive appeal was heard.
The Preliminary Objection of the 1st Respondent is to the effect that:
1. The appeal is incompetent and fundamentally defective and liable to be dismissed.
2. That the Appellant failed to comply with the mandatory provisions of the Rules of this Court.
3. Grounds 1, 2, 3, 4, 5 and 6 of the Notice of Appeal, and issues 1, 2, 3 and 4 formulated therefrom, are incompetent and liable to be struck out.
The relief sought in this Preliminary Objection is for:
An Order of this Honourable Court, striking out/dismissing the appellant’s appeal in limine.
The grounds for this objection are seven (7). These grounds for convenience and for us to take a closer look are reproduced as couched on the motion papers as follows:
1. The notice of appeal filed by the appellant on 28th October, 2020, with leave of Court bears 7 grounds of appeal.
2. Grounds 1 and 2 on the notice of appeal are vague, unreasonable and do not relate to the ratio decidendi of the judgment complained against contrary to the provisions of Order 7 Rules 2(3) and 3 of the Court of Appeals Rules 2021.
3. Grounds 3, 4, 5 and 6 of the said Notice of Appeal are vague, unreasonable, a duplication of each other and replete with argumentative particulars contrary to the provisions Order 7 Rules 2 (2&3) and 3 of the Court of Appeal Rules 2021.
4. The Appellant’s brief of argument filed on 27th October 2021 formulated 4 issues of determination arising from the 7 grounds of appeal.
5. Issues 1 and 4 formulated in the Appellant’s brief are in essence one and the same and therefore amount to a proliferation of issues contrary to the provisions of Order 19 Rules 3 (1) of the Court of Appeal Rules 2021.
6. Issues 1, 2 and 3 are incompetent having being formulated from Grounds 1-6 which are themselves incompetent.
7. if Grounds 1-6 of the Notice of Appeal are struck out and issues 1-4 are also struck out, then there is nothing left of the appeal except to dismiss same in limine.
The Appellant, in reply to the Preliminary Objection of the 1st Respondent in his Appellant’s Reply Brief submitted that the purpose of raising a Preliminary Objection to an appeal is to terminate the appeal in limine. Counsel submitted further that if there are one or more Grounds to sustain an appeal, the proper procedure is to object to the grounds of appeal vide a Motion on Notice and not vide a preliminary objection. Counsel relied on the cases of First Guarantee Pension Limited v. Nze Chidi Duru & 2 Ors (2017) NWLR (Pt. 1586) 483 AT 506-507 Paras. G-B; Coca Cola (Nigeria) Limited v. Akinsanya (2017) NWLR (Pt. 1593) 74 AT 146 Paras. D-E; NNPC & Anor., v. Famfa Oil Limited (2012) LPLER-7812 (SC); (2012) 17 NWLR (Pt. 1328)148; Adejumo v. Olaiwaye (2014) NWLR (Pt. 1421) 252 AT 271 Paras. E-F.
In this preliminary objection, the crux of the complaint is that the grounds of appeal in the notice of appeal are vague and unreasonable. Vague and unreasonable grounds of appeal from our established principles of law are those grounds of appeal couched in a manner which does not provide any solid or explicit standard for it to be understood. An illusive complaint which is lacking in depth and is more windy, evasive, ambiguous, debatable, disputable and inexplicable. See the cases of Set Success Ent.& Co., Ltd v. Ibeju-Lekki Local Government (2021) LPELR — 56608 (SC), Adamu v. C.O.P. Plateau State Command (2020) LPELR – 51956 (CA) and the case of Hassan v. Buhari & Ors., (2022) LPELR – 56677 (CA), where this Court per Abiru, JCA, explained what constitutes a vague ground of appeal, as follows:
“Now, a ground of appeal is said to be vague and imprecise when it is couched in a manner which does not provide any explicit standard for its being understood or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant – Central Bank of Nigeria v. Okojie (2002) 8 NWLR (Pt. 768) 48, Governor, Ekiti State v. Osayomi (2005) 2 NWLR (Pt. 909) 67, Imam v. Sheriff (2005) 4 NWLR (Pt. 914) 80 and Nwabueze v. Nwora (2005) 8 NWLR (Pt. 926) 1. In other words, where the complaint in a ground of appeal is discernible vis-a-vis the judgment of a lower Court, the ground of appeal cannot be said to be vague or imprecise”.
The notice of appeal in the instant appeal is at pages 787 to 792 of the Record of Appeal transmitted on 3/12/2020. I have carefully gone through grounds 1 to 6 of the grounds of appeal with their respective particulars. What is manifestly certain about the grounds of appeal is the fact that the learned counsel for the Appellant who drew up the grounds is with due respect lacking in poise and elegance in the drafting of the grounds. The contents of the grounds are not in any sense vague or unreasonable. They in a fair and subtle manner convey the grievances of the Appellant against the decision of the trial Court.
The objection therefore, is lacking in merit and it is accordingly dismissed.
Let me now go into the merit of the appeal.
MAIN APPEAL:
In this appeal, the Appellant distilled four (4) issues for determination. These issues are couched as follows:
1. Whether the claimant placed enough oral and documentary evidence before the Court to warrant the grant of the declaratory and other reliefs sought. (Distilled from Ground 1 and 2)
2. Whether the learned trial Judge was right to have held that there was a triangular employment relationship between the 1st Respondent, the 2nd Respondent and the Appellant and the 3rd-5th Respondents and whether in the light of the issue of triangular employment, the decision of the Court is not perverse in its entirety (Distilled from Grounds 3 and 4 of the Notice of Appeal).
3. Whether the 2nd Respondent’s alleged verbal promise to apply the local technical assistance grid of rates for 2013 to the 1st Respondent’s as alleged by the 1st Respondent makes the said local technical assistance grid of rates enforceable against the appellant or at all. (Distilled from Grounds 5 and 6 of the Notice of Appeal)
4. Whether the judgment of the trial Court is against the weight of evidence and if it is, whether it ought to be set aside. (Distilled from Ground 7 of the Notice of Appeal).
The 1st Respondent formulated a sole issue for the determination of this appeal. This issue is:
Whether the judgment of the lower Court is against the weight of evidence?
In considering which of the issues are necessary for the determination of this appeal, it needs be noted again that our appellate procedure evolved the framing of issues from grounds of appeal to narrow down and simplify the controversy raised in the entire appeal. In the case of Olafisoye v. FRN (2004) LPELR-2553 (SC), the Supreme Court per Tobi, JSC, held that:
“An issue is the question in dispute between the parties necessary for the determination of the Court, see Chief Ejowhomu v. Edok-Eter Mandalis Limited (1986) 5 NWLR (Pt. 39) 1. An issue which is usually raised by way of a question is usually a proposition of law or fact in dispute between the parties, necessary for the determination by the Court; a determination of which will normally affect the result of the appeal. See Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417. Issues for determination of appeal, are short questions raised against one or more grounds of appeal and are meant to be a guide to the arguments and submission to be advanced in support of the grounds of appeal. It is a succinct and precise question either of law or of fact for determination by the Court, see Imonikhe v. The Attorney-General of Bendel State (1992) 6 NWLR (Pt. 311) 370. An issue is a disputed point or question to which parties in an action have narrowed their several allegations and upon which they are desirous of obtaining either decision of the Court on question of law, or of the Court on question of fact. See Chief Okoromaka v. Chief Odiri (1995) 7 NWLR (Pt. 408) 411”.
Having looked carefully into the issues framed by the parties to this appeal, it is my view that the issues distilled by the Appellant have adequately set up the grievances of the Appellant in this appeal. I therefore, adopt the four (4) issues formulated by the Appellant for consideration of this appeal. I start with issue one.
Issue One:
This issue is – Whether the claimant placed enough oral and documentary evidence before the Court to warrant the grant of the declaratory and other reliefs sought.
Learned counsel for the Appellant submitted that the entirety of the 1st Respondent’s case at the trial Court was hinged on relief ‘A’ which sought a declaration that the 1st Respondents “are employees of the 2nd Respondent”. This relief being declaratory in nature requires a high standard of proof as established in the cases above. Counsel further posited that pursuant to Section 131-134 of the Evidence Act 2011, the burden of proof initially rests on the 1st Respondents as claimants to lead or introduce credible, cogent or believable evidence in line with their pleadings to enable them sustain and win their case against the Respondents. The onus which oscillates between the claimants and the Respondent will not shift until the claimants whose principal relief before the Court is declaratory have made out a prima facie case. Counsel relied on the cases of Alhaji Adebayo Akande v. Jimoh Adisa & Anor (2012) 15 NWLR (Part 1324) 538 AT 558 Bagudu v. FRN & Ors (2003) LPELR-5185 (CA); Fasesin v. Oyerinde (1997) LPELR-1246 (SC); Organ & Ors v. Nigeria Liquefied Natural Gas Ltd & Anor (2013) LPLER-20942 (SC); Patrick Ziideeh v. RSCSC (2007) 3 NWLR (Part 1022) 554 AT 570 A-D; Ibama v. SPDC (Nig.) Ltd (2005) 10 SC. 74 PP. 75-76; (2005) 17 WLR (pt. 954) 364; Gabriel Adekunle Ogundepo & Anor v. Thomas Eniyan Olumesan (2011) 8 NWLR (Part 1278) 54 AT 70 C-D; B. M. Aji v. CBDA & Anor (2015) 16 NWLR (Part 1486) 554 AT 574; Adewuyi & Anor., v. MRS Oil (Nig.) Plc (2019) LPELR-48210 (CA); Skye Bank & Anor v. Akinpelu (2010) LPELR-3073 (SC); Zakirai v. Muhammed (2017) 17 NWLR (Pt. 1594) 181 AT 243 Para. C.
Counsel submitted that the implication of the 1st Respondent failing to tender any witness statement on oath or present any documentary evidence in favor of the said Two Hundred and Fifty-Three (253) persons whom they claim were employees of the 2nd Respondent is that any pleading averred on their behalf is deemed to have been abandoned by the 1st Respondent. It is settled law that pleadings must be supported by evidence and pleadings which are not backed by any evidence whatsoever are deemed to have been abandoned. Counsel relied on the cases of Akande v. Adisa (2012) All FWLR (Pt. 635) 250 AT 263 Paras. A-B; Omo-Agege v. Oghojafor & Ors (2010) LPELR-4775 (CA); Onovo v. MBA (2014) 14 NWLR (Pt. 1427) 391 AT 417 Paras. E; IBN v. Atlantic Textiles Manufacturing Co. Ltd (1996) LPELR-1518 (SC); Agip (Nig.) International Limited v. Agip Petroli International (2010) All FWLR (Pt. 520) 1198 AT 1249 Paras. A-C; Sha Jnr v. Kwan (2000) 8 NWLR (Pt. 670) 685; Mogaji v. Odofin (1978) 4 SC 91; Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 650; Taura v. Chukwu (2018) LPELR-45990 (CA); Okoromaka v. Odiri (1995) 7 NWLR (Pt. 408) 411; UBN Plc v. SCPOK (Nig.) Ltd (2005) 2 NWLR (Pt. 910) 241; Buhari v. Obasanjo (2005) All FWLR (Pt. 258) 1604; (2005) 2 NWLR (Pt. 910) 241; Archibong v. Ita (2004) All FWLR (pt. 197); Iliya & Anor v. Lamu & Anor (2019) LPELR-47048 (CA).
Learned counsel maintained that the Courts are bound by the pleadings of the parties and the issues joined therein. That being the case, the Courts must always be on its guard so as not to deviate from the case made by each party in the pleadings otherwise it will unwittingly be making for parties an entirely new case, as happened in the instant case as regards the claim of the existence of a contract of employment. Learned counsel relied on the cases of Ojo v. Adejobi (1978) 3 SC 65; Ibanga v. Usanga (1982) 5 SC 103; Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167; Okpala v. Sola (1986) 4 SC 141; Mogaji & Ors v. Odofin & Ors (1978) 4 SC 91 AT 93-94; Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 587 AT 660; Barr. Chidi Nobis- Elendu v. INEC & Ors., (2015) 6 SCM 117 AT 134 1; Larmie v. DPM & Services Limited (2006) All FWLR (Pt. 296) 775 AT 800 Paras. A-B.
Learned counsel for the 1st Respondent argued that the finding attacked is that the 1st Respondents are employees of the 2nd Respondent. The 1st Respondent copiously pleaded facts of the conduct between them and the 2nd Respondent that led to this finding in paragraph 4-16 of the Amended statement of facts. The 2nd Respondent did not properly traverse these facts hence the lower Court’s finding. So the question is; can the Appellant deny these facts and make a case on behalf of the 2nd Respondent? If anybody should complain about these findings, should it not be the 2nd Respondent? Has the Appellant not merely constituted itself as a busybody? Counsel relied on the cases of Ohakim v. Agboso (2010) 19 NWLR (Pt. 1226) 172 AT 223 Paras. C-D; Mobil v. Johnson (2018) 14 NWLR (Pt. 1639) 329.
Learned counsel for the 1st Respondent further argued that there is no requirement in law that all claimants must testify. The law is that the strength of a party’s case is not determined by the number of witnesses called by the party, but by the quality of witnesses called. He also stated that failure of a party to testify is not detrimental to that party or his case. Counsel cited the cases of Husseini v. Mohammed (2005) 17 NWLR (Pt. 954) 303 AT 405 Para. H; Osazuwa v. Isibor (2007) 3 NWLR (Pt. 859) 16 AT 37 Paras. A-B; Oji v. Ndu (1993) 1 NWLR (Pt. 268) 235 AT 257; David v. Iba (2007) 2 NWLR (Pt. 1018) 321 AT 358 Para. C; Onu v. Idu (2006) 12 NWLR (Pt. 995) 657 AT 679; Kehinde v. Ogunbunmi (1967) 149 NLR 306; Inko-Tariah v. Goodhead (1997) 4 NWLR (Pt. 500) 453 AT 474 Para E.
The law is settled now that the Court and the parties are bound by their pleadings.
In the case of Osondu Co Ltd. & Anor v. Akhigbe (1999) LPELR – 1433 (SC), the Supreme Court per Uwaifo, JSC, held as follows:
“It must be realized that pleadings is a statement of candour as to what a party to a case relies on to prove or defend a cause. It ought to be made as clear as it possibly can, not evasive or misleading or ambiguous. Each party must endeavor to place and must be presumed to have placed, all necessary pleadable acts on record the best way it can in order to achieve the best of its case. It must put the other party and the Court on a firm understanding of what the issues joined or denied, or issues admitted or not admitted. Pleadings are the guiding light by which all concerned trace the path to the justice of a case. That path should not be hampered by and littered with stumbling blocks of uncertainties, misrepresentations and ambushes embedded in the averments. That will be an effort to spring surprises and will not be proper pleadings. As was said by Phillimore J., in The Why Not (1888) LR 2A & E. 265 and quoted with approval in Enwezor v. Central Bank of Nigeria (1976) 3 SC 45 at 56 Per Madarikan, JSC, pleadings “…are not to be considered as constituting a game of skill between the advocates. They ought to be so framed as not only to assist the party in the statement of his case but the Court in its investigation of the truth between the litigants.”
The basic law is that parties are bound to plead all facts they intend to rely upon at the trial and facts not pleaded will go to no issue. One rationale behind this principle is that litigation must follow some restrictive order and not open-ended in order to save the time of both the Courts and the litigants. If the procedure of pleadings was not introduced in litigation, parties search for evidence could not have ended and that should have protracted litigation beyond expectation.
The law simply put, is that litigation is fought on pleadings. The pleadings define the parameters of the case and they give notice of the case to the other party. Any evidence led must be within the circumference of the facts pleaded. Pleadings in that wise, must not be deficient of the facts required to build up the case.
In the instant case, the 1st Respondent as claimant at the trial Court in their pleadings stated many facts of their employment and emoluments. For a start, paragraphs 8-11 of the Amended Statement of Facts read as follows:
“8. That however, despite the assurances, no formal letter of appointment or contract or any other written memoranda howsoever described detailing their conditions or terms of employment was ever given to the claimants or published on a board or any other medium for them to access same.
9. That worse still the claimants got no wages of any sort till after the third to fifth month of their employment when they began to receive calls in batches from certain strange individuals who represented themselves as officials of some companies including Benil Nig. Ltd., Luck Guard Ltd., Cisan International Ltd., and that these strange persons informed them that they are their “paymasters” and that each claimant must sign and collect a letter of employment before they can get enrolled for wages and other benefits.
10. That surprisingly, when the claimants collected these letters, they were shocked to find that it was on the letter-headed paper of these intermediary companies and not that of the 1st Defendant. Several copies of the said letters issued by the said intermediaries are hereby pleaded and shall be relied upon at the trial.
11. The claimants took up the issue with Human Resources and Recruitment Department demanding an explanation and were referred to the Administration Department. They were however informed by the said Mr. Bade Bakare DGM Administration Department that either they accepted the state of things or they could leave the employment “as many others were seeking the opportunity of working with the 1st Defendant”.
(Underlining mine).
Right from the pleadings of the 1st respondent/claimant at the trial Court there is no doubt as to the fact that there was no letter of appointment/employment from the 1st defendant now 2nd Respondent on appeal, issued to 1st Respondent in this appeal.
In Labour Law, it is very significant to know that the contract of employment binding the employer and the employee is normally outlined in a Letter of employment/appointment. In the case of Organ & Ors. v. Nigeria Liquefied Natural Gas Ltd., & Anor (2013) LPELR – 20942 (SC), the Supreme Court emphatically held as follows:
“The letter of employment is the bedrock on which any of the appellants can lay claim to being employees of the respondent and without the production of such a document, no employment can be inferred. The Employees’ Handbook issued by 1st Respondent is not a substitute for the letter of employment”.
In the instant case, there is no letter of employment indicating that the 2nd Respondent recruited or gave employment to the 1st Respondent. Issues of contract of employment are definite things. They are not what one can under any guise consign to circumstantial predictions. If there is a contract of employment, there must be clear evidence of such a contract laying out clearly the terms and conditions of the contract. What is disclosed from the evidence in this case is the fact that the Appellant had a contract of service with the 2nd Respondent, it engaged many people including some of the 1st Respondent to perform her role and obligations to the 2nd Respondent. The 2nd Respondent did not directly recruit the 1st Respondent. It follows therefore, that the finding of the trial Court that the 1st Respondent were employed by the 2nd Respondent had no foundation in facts and therefore, perverse.
Furthermore, all the reliefs claimed are declaratory reliefs. A declaratory relief implies a declaration by the Court of the action, cause or right of the parties before the Court. It is the law that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by a person seeking the declaratory relief. See Anyanru v. Mandilas Ltd (2007) 4 SCNJ and Chukwumah v. S.P.D.C (Nigeria) Ltd., (1993) LPELR – 864 SC.
It invariably therefore means that a declaratory relief cannot be granted in the absence of any evidence or where the evidence led is unsatisfactory. A declaratory relief such as what was sought by the plaintiff is discretionary. If a substantial question exists to which one person has a real interest to raise, and the other to oppose, then the Court has a discretion to resolve it by a declaration which it will exercise if there is a good reason for so doing. It is the form of judgment which should be granted only when the Court is of the opinion that the party seeking it is, when all facts are taken into consideration, fully entitled to the exercise of the Court’s discretion. The power of the Court to make a declaration where it is a question of defining rights of two parties is only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide. See Ibeneweka v. Egbuna & Ors., (1964) 1 WLR 210.
In the instant case, in an attempt to establish their assertions that they were employees of the 2nd Respondent and that they were not employees of the Appellant and the 3rd – 6th Respondents, the 1st Respondent called five (5) witnesses, Felix Adariku testified on behalf of the 1st Respondents as CW1, Isaiah Obobolo as CW2, Timi Bognett Untung as CW3, Adeleke Quadri as CW4 and Jaja Iniobong as CW5. The 1st Respondent’s witnesses stated in their evidence that they were employees of the 2nd Respondent before their purported employment with the 2nd Respondent were allegedly terminated. They claimed that they were called for interviews at the office of the 2nd Respondent. That they were thereafter offered the jobs, given ID cards with IGG Number, then rolled over to the Appellant and the 2nd to 6th Respondents without their consent. That they were not paid salaries, they tried to unionize to no avail and that they tried to negotiate their conditions of service to no avail until they were finally terminated with no terminal benefits.
The 1st Respondents did not produce any documentary evidence showing that they were employees of the 2nd Respondent at any time whatsoever. The 1st Respondent has a duty to support their averments that they are employees of the 2nd Respondent with evidence. The evidence required here is the LETTER OF EMPLOYMENT or CONTRACT OF SERVICE, between the 1st Respondent and the 2nd Respondent. It is this document that shows the relationship between the parties and the terms governing the relationship. The letter of termination should be tendered. These are the major documents that are to be examined and interpreted by the Court in order to decipher if there is a relationship and where there is, whether or not there was a breach of the terms thereof.
From the foregoing therefore, issue one is resolved in favour of the Appellant.
Issue Two:
This issue is – Whether the learned trial Judge was right to have held that there was a triangular employment relationship between the 1st Respondent, the 2nd Respondent and the Appellant and the 3rd-6th Respondents and whether in the light of the issue of triangular employment, the decision of the Court is not perverse in its entirety.
Learned counsel for the Appellant argued that based on the provisions of the Labour Act, 2004 the position adopted by the trial Court with all due respect is erroneous. The trial Court and the wordings in the book which he quoted misconstrued the Labour Act as the employee in a triangular employment does not have two masters as the Labour Act has clearly said that kind of employee remains the employee of the employer and not the person to whom they provide services. It is also apposite to state at this juncture that, it is trite that opinions of authors in journals and textbooks are inferior to case laws, Acts, treaties and conventions. Counsel further submitted that parties are bound by their pleadings and would not be allowed to deviate from same. Counsel relied on the cases of Mbanefo v. Molokwu (2014) All FWLR (Pt. 742) 1665 AT 1693 Paras. A-B; FRN v. Mohammed (2014) LPELR-22465 (SC); (2014) 9 NWLR (Pt. 1413) 551; Odekilekun v. Hassan & Anor (1997) LPELR-2206 (SC); (1997) 12 NWLR (Pt. 531) 56; Statoil (Nigeria) Limited v. Inducon (Nigeria) Limited (2021) 7 NWLR (Pt. 1774) 1 AT 128-129 Paras. G-C; Offodile v. Onejeme (2021) 7 NWLR Pt. 1775, Pg. 389 AT 412 AT Paras. H-A.
Learned counsel for the 1st Respondent argued that the 1st Respondent’s claim before the Court was unequivocal that the 2nd Respondent was their employer and that the 2nd Respondent conscripted the Appellant and 3rd – 6th Respondents in a sham scheme to masquerade as the 1st Respondent’s employers so as to deny them the benefits of enhanced conditions of service. Counsel further argued that the lower Court was on firm ground when it held that both the Appellant and the 2nd Respondent were jointly liable as employers of the 1st Respondent. Counsel relied on the case of Stephen Ayaogo & Ors v. M.P.N Unltd., (2013) 30 NLLR (Part 85) 95 AT 103.
Under our laws, Section 91 of Labour Act, defines contract of employment to mean 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.
Ordinarily, an employment relationship involves two parties: the employer and the employee. However, the International Labour Organization (ILO) has acknowledged that there are situations in which three individuals or entities can be involved in employment relations, in what might be termed a “triangular employment relationship” or a “disguised or objectively ambiguous triangular employment relationship”. See – ILO The Scope of the Employment Relationship (ILO Report V) International Labour Conference 91st Session Geneva 2003 AT pg. 38.
The issue as addressed by the parties is interrogating the aspect of the judgment of the trial Court on whether there was anything such as a triangular employment relationship. What is a triangular employment relationship? A triangular employment relationship is a situation where the employer arranges for an employee’s placement or assignment with a third party.
Let me specifically say here that under our law, there is the doctrine of privity of contract. By this privity doctrine, a contract cannot confer or impose obligations arising therefrom.
As a general rule, the doctrine of privity of contract is that a contract cannot confer or impose obligations arising under it on any person except the parties to it. In other words, only the parties to a contract can sue or be sued on the contract, and a stranger to a contract cannot sue or be sued on the contract. The doctrine of privity of contract is all about the sanctity of contract between the parties to it. It does not extend to others from outside. The doctrine will not apply to a non-party to the contract who may have, unwittingly, been dragged into the contract with a view to becoming a shield or scapegoat against the non-performance by one of the parties. See – Febson Fitness Centre v Cappa holdings ltd (2014) LPELR — 24055 (CA) and UBA Plc & Anor., v. Jargaba (2007) 11 NWLR (Pt. 1045) 247.
From the foregoing therefore, there is no iota of evidence to indicate that the arrangement and agreement of the parties could admit of any triangular employment relationship. The issue is therefore resolved in favour of the Appellant.
Issue Three:
This issue is – Whether the 2nd Respondent’s alleged verbal promise to apply the local technical assistance grid of rates for 2013 to the 1st Respondent as alleged by the 1st Respondent makes the said local technical assistance grid of rates enforceable against the appellant or at all.
Learned counsel for the Appellant while arguing this issue submitted that claimants did not establish how Local Technical Assistance Grid of Rates for 2013 applied to them rather, the claimant’s evidence and pleadings was that the 2nd Respondent (1st Defendant) promised to apply the LTASGR to them, and a promise does not crystalize into contract. The said Local Technical Assistance Grid of Rates from 2013 and the conditions of service for contract service personnel were not incorporated into the written terms of the contract of the claimants. In any event, the Local Technical Assistance Grid of Rates for 2013 was a proposal as to wages and not a final document. See the cases of Adefulu & Ors v. Oyesile & Ors (1989) LPELR-91 (SC); Cross River State Water Board v. K’ugen Consulting Engineering Ltd & Ors (2006) LPELR-9802 (CA).
Learned counsel for the 1st Respondent submitted that the Appellant argued that Exhibit C6 was a proposal and that it did not crystalize to a binding contract. He contended also that the Appellant is not entitled to make this argument since it never traversed the 1st Respondent’s detailed averments on how the document was negotiated and agreed upon between the 1st and 2nd Respondent. The Appellant proceeded to offer the same argument that Exhibit C6 only applies to “Technical Assistants”. I have gone through the processes and the evidence before the trial Court, there is no evidence placed before the trial Court to suggest that there was any concrete agreement for the 2nd Respondent to apply the Local Technical Assistance grid of 2013 rates to the Respondents. It follows therefore, that this issue must be and it is hereby resolved in favour of the Appellant.
Issue Four:
This issue is – Whether the judgment of the trial Court is against the weight of evidence and if it is, whether it ought to be set aside.
Learned counsel submitted in conclusion that the law as stated by the trial Court is that the contents or terms of a contract must be made known to each party and these terms must be proven by fact.
The Court ought to have sought to ascertain from the facts and evidence before it if the 1st Respondent have proven their case. If contract of employment is by parole evidence still ought to be proven. In this case, they said that they were not given any contract by the 2nd Respondent. They did not put anything before the trial Court upon which it could make an inference as to the existence of a contract of employment. Counsel relied on the cases of Jegede v. Mayor Engineering Company Limited (2013) LPELR-20284 (CA); Aiyejuni & Co. (Nig.) Ltd v. Akinjagunla & Anor., (2020) LPLER-51199(CA); Organ & Ors v. Nigeria Liquefied Natural Gas Ltd & Anor (Supra); Texaco Nigeria Plc v. Alfred G. Adegbile Kehinde (2000) LPELR-10000 (CA); Onumalobi v. NNPC & Warri Refining & Petrochemical Company (2004) 1 NNLR (Pt. 2) 304. Counsel urged the Court to allow this appeal and set aside the decision of the learned trial Judge.
Learned counsel for the 1st Respondent submitted that the pleadings and testimony of the 1st Respondent’s witnesses show that they established their employment by the 2nd Respondent with reference to many conducts from which the employment could be inferred. Their very cry to the Court was that there was a fraudulent device by the 2nd Respondent by which they failed to issue them employment letters. To ask that they must produce the same employment letters which they were not issued is simply ridiculous. Counsel relied on the case of Mobil v. Okon (2018) 14 NWLR (Pt. 1639) 329 @ 367 Para. C. Counsel urged the Court to dismiss this appeal in its entirety and uphold the judgment of the lower Court.
The relationship between the parties in this case is well-scripted, known and appreciated by them. The Court cannot write or rewrite any agreement for the parties.
The parties to any transaction usually have their positions which they bring to their table of negotiation. When they are done with their negotiations, they now have their terms well-crafted to govern the transaction they enter into. The parties and no other are responsible for their terms of engagement. No Court has the power to script or foist on the parties terms which are strange to their agreement. Parties are bound by the terms of their contract.
The level of proof needed in the circumstances of this case is as per the required standard of proof in civil case, it is a cardinal principle of law that civil cases are decided on the preponderance of evidence and balance of probabilities. See the cases of Emeka v. Chuba- Ikpeazu & Ors., (2017) 15 NWLR (Pt. 1583) 345, A.B.C. (Transport Company) Ltd. v. Miss Bimmi Omotoye (2019) LPELR-47829 (SC).
In the instant case, there is no credible evidence to prove any of the declaratory reliefs claimed by the 1st Respondent at the trial Court. The judgment of the trial Court was truly against the weight of evidence. This issue is therefore, resolved in favour of the Appellant.
From the foregoing consideration wherein all the issues were resolved in favour of the Appellant, it is my firm view that there is merit in this appeal. The appeal is therefore, allowed, the judgment of the National Industrial Court in Suit No: NICN/ABJ/110/2016, delivered on the 26th day of October, 2018, is hereby set aside.
Parties are to bear their respective costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My Lords, I have been privileged to read in advance, a draft copy of the leading judgment just delivered by my amiable lord, Stephen Jonah Adah, JCA. I am completely satisfied with the reasoning and conclusion reached therein, and it haven covered the field, I have nothing more to add.
BATURE ISAH GAFAI, J.C.A.: I have had the advantage of reading before now, the draft of the judgment delivered by my learned brother Adah, JCA. I agree entirely with the lucid reasonings expressed therein and the conclusion thereby reached. I adopt those reasonings as mine; by which I too find the decision of the lower Court perverse, liable to be and is accordingly set aside by me too.
Appearances:
Udu Diegbe, Esq. For Appellant(s)
Mark Ikongbeh, Esq. with him, Bunmi Aimola, Esq. for 1st Respondent.
Inam Wilson, Esq. with him, Francis Jarigo, Esq. for 2nd Respondent.
3rd, 4th, 5th and 6th Respondents were served but not represented in Court For Respondent(s)
