IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS
DATE: SEPTEMBER 27, 2018
SUIT NO: NICN/LA/177/2015
BETWEEN
Mr. Charles Ehi Aziengbe – Claimant
AND
1. Halliburton Operations Nigeria Limited
2. Landmark Graphics Incorporation Nigeria Limited – Defendants
REPRESENTATION
J. Akanike for the Claimant.
Inam Wilson with Joseph Abukpain for the Defendant.
JUDGMENT
1. Introduction & Claims
On 13/5/15, the Claimant, by his General Form of Complaint and statement of facts, approached this Court and sought the following reliefs against the Defendants –
1. A declaration that the Documents dated 18th of May 2005 and 1st of January 2009 are records of subsisting valid contract Agreement between the claimants and the Defendants.
2. A declaration that no proper valid One Month Notice has been served on the claimant as stipulated in both contract Agreements dated 18th of May 2005 and 1st of January 2009 with both defendants respectively.
3. A declaration that the sum of =N=1,536,000.00 (One Million Five Hundred and Thirty Six Thousand Naira only) paid by defendant’s into the claimants account is not a total refection of claimant terminal benefits.
4. A declaration that the claimant is entitled to and now due to the sum of US$54,857 (Fifty Four Thousand Eight Hundred and Fifty Seven Dollars) x 7 years a total sum of US$383,999 being accumulated terminal money held accruing to the claimant from NDR project held in trust by the 1st and 2nd defendants respectively from the 1st day of February 2015 when his contract with the defendant was purportedly terminated.
5. An order of this Honourable Court compelling the defendants to jointly pay the claimant the sum of US$383,999 (Three Hundred and Eighty Three Thousand, Nine Hundred and Ninety Nine Dollars) only as money, due to the claimant paid from the NDR project held in trust by the Defendants.
6. A declaration that the claimant is entitled to the sum of =N=150,000 (One Hundred and Fifty Thousand Naira) monthly for ten years accumulated sum of =N=18,000,000.00 (Eighteen Million Naira) being personal terminal benefits of the claimant.
An order of this Honourable Court compelling the defendants to jointly and severally to pay the sum of =N=18,000,000.00 (Eighteen Million Naira) being a total aggregate sum of his last monthly N150,000,00 salary for Ten years which is due to the claimant from the 1st of February 2015 together with 15% interest from 1st of February 2015 until judgment.
7. A declaration that the Claimant is entitled to the sum of =N=150,000.00 (One Hundred and Fifty Thousand Naira) only against the Defendants jointly and severally in lieu of absence of One month notice form the Defendants to the Claimant before the purported termination of the valid contract agreement between the Claimant and the Defendants.
An order of this Honourable Court compelling the defendants to jointly and severally to pay to the claimant the sum of =N=150,000.00 (One Fifty Thousand Naira) in lieu of the Notice to terminate the contract dated 1st of January 2009 together with 15% interest from 1st of February 2015 until until judgment.
8. A declaration that the claimant is entitled to the followings sums of allowance.
Transport allowance for ten years at the yearly rate of =N=120,000.00 (One Hundred and Twenty Thousand Naira) x 10 years total of =N=1,200,000.00 (One Million Two Hundred Thousand Naira Only).
Health allowance for ten years at the yearly rate of =N=480,000.00 (Four Hundred and Eighty Thousand Naira Only) x 10 year total of =N=4,800,000.00 (Four Million Eight Hundred Thousand Naira Only).
Accommodation allowance =N=72,000.00 (Seven Two Thousand Naira Only) x 10 years total of =N=720,000.00 (Seven Hundred and Twenty Thousand Naira Only).
9. A declaration that the clauses in the contract agreements of 2005 and 2009 respectively between the claimants and both defendants cannot operate to deprive the claimant of health, transport, and pensionable rates the claimant having worked consistently with the defendants for up to ten years.
10. A declaration that the claimant is entitled to the sum of =N=10,000,000.00 (Ten Million Naira Only) jointly and severally against both defendants for their breach of his terms of contract dated 1st of January 2009 respectively.
11. The claimant seeks15% interest rate on Judgment sums until it is liquidated.
12. A declaration that the claimant has no contract of employment with the company known as Theo Tech Global Services.
The Claimant’s Form 1 was accompanied by all the requisite frontloaded processes. In reaction, the Defendants entered an appearance and filed a joint statement of defence along with witness deposition, list of witnesses, list and copies of documents to be relied on at trial.
2. Case of the Claimant
The Claimant opened his case on 18/10/16 and testified in chief by adopting his witness statement on oath dated 13/5/15. Claimant also adopted his additional witness statement on oath dated 25/5/16 as his additional evidence and tendered 16 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1-Exh. C16. The case of the Claimant as revealed from his pleadings in brief is that he had a contract of employment with the Defendants; that the while contract agreement of 1/1/09 was still pending his employment was terminated by a company named iTheo Tec Global Services with which he had no contract with; that he worked with the Defendants for 10 years and that he is entitled to some unpaid allowances and benefits from the Defendants.
Under cross examination, Claimant testified that there is no provision for transport allowance in his Contract of Service; that he worked on the NDR Project; that he did not see the Contractual arrangement between NDR and the Defendants; that the Country Manager of 2nd verbally promised to ensure the Defendants pay him $54,857.00 received from NDR on his behalf; that one month salary in lieu of notice would be =N=150,000 but he received =N=144,000 by Exhibit C8; that he also received =N=1,392,000.00 as gratuity; that he felt exploited by Defendants because his service was terminated after 10 years of meritorious service and that the Defendants did not promise him that he would work for a certain period.
3. Case of the Defendants
On 16/5/17, the Defendants opened their defence and called on Elfrida Agbonrofo as their sole witness. The witness simply adopted her witness deposition dated 18/5/17 as her evidence in chief. The case of the Defendants is that the Claimant was once their independent contractor between 2005 and 2013; that the Claimant became an employee of Theo Technical Nigeria Limited from 2013 to 2015 when Theo Tec Global Services Limited terminated the employment of the Claimant and that the Claimant as paid all he was entitled to by Theo Technical Nigeria Limited.
Under cross examination the witness stated that she knew the Claimant; that the Claimant is not a staff of both Defendants; that he worked for 2nd Defendant as Contractor; that 2nd Defendant is an affiliate of 1st Defendant; that Claimant was engaged as Contractor from 2005 and in 2013 as third party staff on the NDR Project; that there is no record of any wrong doing against Claimant while with the Defendant; that the contract between the Claimant and Defendants came to an end by conduct of both parties; that the NDR Project ended in 2015; that she has no document respecting the transfer of services of staff of 1st and 2nd Defendants to Theo Technical Nigeria Limited and that Theo Technical Nigeria Limited was paying salary of the Claimant from 2013.
4. Submissions of learned Counsel
At the close of trial and pursuant to the direction of the Court, learned Counsel on either side filed their respective final written addresses. The final written address of the Defendants was dated 16/1/18 and filed on 17/1/18. It is of 36 pages. In it, learned Counsel set down the following issues for determination – 1. Whether this Honourable Court lacks jurisdiction to make any valid and binding judgment/order in this suit in the absence of a necessary party, Theo Tech Global service Ltd; 2. Whether there is no subsisting contract between the Claimant and the Defendants and 3. Whether Claimant is entitled to any of the monetary claims made against the Defendants. On the other hand learned Counsel to the Claimant filed a filed a 17-page final written address on 19/2/18 while the Defendants subsequently filed a reply address on points of law on 7/3/18. I carefully read and understood all the issues canvassed in these addresses. I shall therefore refer to them in the course of this Judgment as may be necessary.
5. Decision
I carefully read and understood all the processes filed by the learned Counsel to the parties in this case. I listened attentively to the testimonies of the witnesses called at trial as well as watched their demeanor. I heard the oral arguments of Counsel for both sides including the reply argument on points of law. Having done all this, I set down the following issues for the just determination of this case
1. Whether this Court has jurisdiction to hear and determine this case.
2. Whether the Claimant has adduced sufficiently cogent and credible evidence in support of his case to be entitled to all or some of the reliefs sought.
In his final written address the learned Counsel to the Defendants had submitted that this Court lacked jurisdiction to make any valid and binding judgment/order in this suit. The ground of objection is that a necessary party to this suit – Theo Tech Global Services Limited is not a party here. Counsel to the Claimant had argued otherwise submitting that the said Theo Tech Global Services Limited is not known to the Claimant and hence need not be joined as a party. A challenge to the jurisdiction of Court is a challenge to the competence and power of Court to adjudicate over a matter before it. Issue of jurisdiction once raised, it is imperative that it be resolved one way or the other. Jurisdictional issue is a fundamental and critical issue. It is a challenge that can be raised at any point in the cause of the proceedings. It may even be raised on appeal. In any event, jurisdiction is not an issue of fact. It is one of law. That being the case, it can even be raised by a trial Judge suo motu the only proviso being that a trial Judge must allow parties to proffer their addresses on same before delivering a Ruling. The reason being that a challenge of jurisdiction goes to the very root and foundation of the case before the Court and where jurisdiction is absent every effort dissipated in hearing a case amounts to efforts in futility. This is irrespective of the genuine intention, diligence and erudition of the trial Judge.
A party is said to be a necessary party to a suit if the suit cannot be fairly, effectively and completely determined without the presence of that party. A company called Theo Tech Global Services Limited is the alleged third party in this case. My understanding of the facts as revealed from the pleadings of the Claimant is that it has no business dealings or employment relationship with the Company; that he was employed by the Defendants; that he executed contract of employment with the Defendants but that suddenly Theo Tec Global Services Limited came from the moon and terminated his employment contract with the Defendants. It beats ones imagination how a third party without any power to do so will suddenly wake up and effectively terminate the employment of a staff of another entity. Unfortunately, that third party is not made part of this suit. This is imperative considering the argument of the Defendants that indeed the said third party was paying the salary of the Claimant from 2013 until his employment was terminated. Claimant ought to have joined Theo Tec as a party in this suit. The fact remains that the Defendants have entirely nothing to lose and hence under no obligation to seek joinder of Theo Tec as a party. To argue that Theo Tec is not a necessary party to this suit is to deliberately call black white and vice versa. I hold that this suit cannot be effectively and completely determined in the absence of Theo Tec. The proper parties are not before the Court. Therefore I decline to exercise jurisdiction in respect of same.
Aside from and notwithstanding the foregoing, there is yet another equally important point to be considered still on issue of jurisdiction. Is the subject matter of this suit within the jurisdiction of this Court? Can this Court, on the basis of the evidence led, exercise its jurisdiction to hear and determine same? Jurisdiction of a Court is usually conferred by the statute. See Parties cannot on their own volition confer on a Court the jurisdiction to hear and determine the subject matter of a suit. In other words, jurisdiction cannot be conferred by agreement of the parties. See Odogwu & Anor. v. Nwajei & Ors. (LPELR-21030 (CA). The subject matter jurisdiction of this Court is conferred by Section 7, National Industrial Court Act, 2006 which states thus –
7(1). The Court shall have and exercise exclusive jurisdiction in civil causes and matters:-
(a). Relating to:-
(i). Labour, including trade unions and industrial relations; and
(ii). environmental and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and
(b). Relating to the grant of any order to restrain any person or body from taking part in any strike, lock or any industrial action or as any conduct in contemplation or as furtherance of a strict, lock-out or any industrial action.
(c). Relating to the determination of any question as to the interpretation of:-
(i). Any collective agreement,
(ii). Any award made by an Arbitral Tribunal in respect of a labour dispute or an organizational dispute;
(iii). The term of settlement of any labour dispute, organizational dispute as may recorded in any memorandum of settlement,
(iv). Any trade union Constitution, and
(v). Any award or judgment or the Court.
Indeed the subject area jurisdiction of this Court was to be constitutionally reinforced by Section 254C(1), Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010.Again that section provides as follows –
254C(1).Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters:-
(a).relating to or connected with any labour, employment, trade unions, industrial relations matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;
(b).relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employee’s Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;
(c).relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters connected therewith or related thereto;
(d).relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer’s association or any other matter which the Court has jurisdiction to hear and determine;
(e).relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom;
(f).relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;
(g).relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;
(h).relating to, connected with or pertaining to the application or interpretation of international labour standards;
(i).connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;
(j).relating to the determination of any question as to the interpretation and application of any:-
(i).collective agreement;
(ii).award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute;
(iii).award or judgment of the Court;
(iv).term of settlement of any trade dispute;
(v).trade union dispute or employment dispute as may be recorded in a memorandum of settlement;
(vi).trade union Constitution, the Constitution of an association of employers or any association relating to employment, labour, industrial relations or work place;
(vii).dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof;
(k).relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;
(l).relating to:-
(i).appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith;
(ii).appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and
(iii).such other jurisdiction, civil or criminal and whether to the exclusion of any other Court or not, as may be conferred upon it by an Act of the National Assembly;
(m).relating to or connected with the registration of collective agreements
An important point to note here is that the combined reading of these sections of the statutes is to the effect that the jurisdiction of this Court is limited only to employment and related matters only. To therefore exercise jurisdiction over any other causes or matters outside these statutory provisions will amount to an exercise in futility.
Now the basis of the case of the Claimant is the contract agreements dated 18/5/05 & 1/1/09. See in particular paragraphs 4, 11,12,13,27, & 28 of the Claimant’s statement of facts. Claimant led evidence in chief respecting the quoted paragraphs. In further support of his case, the Claimant tendered Exh. C3 & Exh. C4. Both agreements were titled as AGREEMENT WITH CONTRACTOR. Both were numbered LGC/PSO/2004. The Agreements contained certain terms of which I find Clause 9 of Exh. C3 & Clause 10 of Exh. C4 instructive. Both clauses contain the same provision as follows –
”The Contractor will furnish Services as an independent contract and not as an employee of Landmark or any company affiliated with Landmark. The Contractor has no power or authority to act for, represent, or bind Landmark or any company affiliated with Landmark in any manner. The Contractor shall not be entitled to any life insurance, participation in Landmark’s savings plan, nor any other benefits afforded to Landmark’s employees or those of Landmark’s affiliates. If Landmark or any of Landmark’s affiliates is required to pay or withhold any taxes or make any other payment with respect to fees payable to the Contractor, the Contractor will reimburse Landmark or its affiliate in full for taxes paid, and permit Landmark to make deductions for taxes to be withheld from any sum due to the Contractor”.
The contract agreement which the Claimant sought to enforce in this Court is one not of employment but one for an independent contractor.
Under Schedule 1 to Exh. C4, the Contractor was –
”To provide Support services at Landmark Graphics (Nigeria) Limited in Lagos, Nigeria and other such places that are deemed appropriate, starting from 1st of January 2009 till terminated for at least 5 days each week”.
Can it be said that Exh. C4 is a contract of employment to bring it within the jurisdiction of this Court? I answer in the negative. That contract was one for service rather than of service. See Shena Security Company Limited v. Afropark (Nigeria) Limited & Ors. (2008) LPELR-3052(SC). See also Chioma Kanu Agomo; Nigerian Employment and Labour Relations Law and Practice; Concept Publications Limited, 2011 p. 61. The Claimant here is an independent contractor rather than an employee of the Defendants. Claimant did not exhibit any letter of employment understandably since none was issued to him. The terms and conditions of his engagement are as stated in Exh. C4. It is my finding that the Claimant was not an employee to fall within the jurisdiction of this Court and that the agreement between him and the Defendants is one for him to act as an independent contractor. I thus find and hold that this Court does not have jurisdiction to hear and determine this case. Having so found and held, I dismiss this case accordingly.
The second issue for determination is whether the Claimant has adduced sufficiently cogent and credible evidence in support of his case to be entitled to all or some of the reliefs sought. Considering the resolution of issue 1 and the finding that this Court does not have jurisdiction to consider and determine this second issue is akin to an attempt in futility or at best an academic exercise. The foundation for the claims of the Claimant has been punctured. I therefore elect not to consider this issue at all. For, once a Court lacks jurisdiction effort at making any further enquiry into the case is nothing but sheer waste of judicial time.
Finally, for all the reasons as contained in this Judgment the case of the Claimant is dismissed in its entirety for lack of jurisdiction.
I make no order as to cost.
Judgment is entered accordingly.
____________________
Hon. Justice J. D. Peters
Presiding Judge
