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NATIONAL UNION OF HOTELS AND PERSONAL SERVICE WORKERS -VS- NAMID NIGERIA LIMITED AND ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE THEIR LORDSHIPS – THE HONOURABLE JUSTICE E. N. AGBAKOBA (PJ)

                      THE HONOURABLE JUSTICE O. Y. ANUWE (J)

                                  THE HONOURABLE JUSTICE R. B. HAASTRUP (J)

 

DATED 19TH JANUARY, 2018                                                      SUIT NO: NICN/ABJ/03/2017

 

BETWEEN

NATIONAL UNION OF HOTELS AND

PERSONAL SERVICE WORKERS…………………………………….….. APPELLANT

 

AND

  1. NAMID NIGERIA LIMITED
  2. WEST AFRICA CATERING NIGERIA LTD …………………………  DEFENDANTS

 

REPRESENTATION

JAMES ODE ABAH for the Appellant

DAGOGO ISREAL IBOROMA for the 1st Respondent/Defendant

  1. M. A. DAYIfor the 2ndRespondent/Defendant

 

JUDGEMENT

 

  1. This matter is a referral from the Honourable Minister of Labour and Productivity through a letter dated the 11th of January 2015. Referred to this court for adjudication with the following term of reference:
  2. “To inquire into the trade dispute existing between National Union Of Hotels And Personal Service Workers and Namid Nigeria Limited and West Africa Catering Nigeria Ltd over the following issues

 

  1. Refusal of management to recognize a union.
  2. Wrongful termination of employment of One Hundred and thirty (130) workers by management for asking for a pay rise and engaging on work stoppages that led to shut down of company operations
  3. Withholding of workers’ salaries and pay-off by management.
  4. The Industrial Arbitration Panel (IAP) had on 10th day of November 2016 made an award in favour of the instant respondent to which the present appellant objected through a letter of notice of objection dated the 14th of December, 2016 and addressed to the Honourable Minister. The grounds of the objection which were predicated on section 13(2) of the Trade Disputes Act Cap T8 LFN 2004 and against the 1st paragraph of the IAP Award and stated as follows:
  5. The 1st party states that the workers recruited by the 2nd party are also placed on the pay Rolland staff of the 3rd party who also issues them id cards.
  6. The 3rd Party is a company whose employees are engaged in the business of catering services, janitorial and personal services which fall within the jurisdictional scope of the 1st Party but failed to recognize and acknowledge the right of the 1st Party to unionize the ineligible members working within its work force.
  7. The respective parties filed and exchanged their briefs of arguments. In the appellant’s brief of argument filed on the 7th of April 2016 and adopted on the 23rd of October 2016, learned appellant counsel, Mr. James Odey Aba, after the introduction and brief review of the facts leading to this dispute and the referral, submitted a sole issue for determination as follows:
  8. The Appellant by this Appeal is praying this Honourable Court for the following:

 

  1. AN ORDER allowing this appeal.

 

  1. AN ORDER setting aside the aspect of the Award specifically Paragraph 1 of the Award where the Industrial Arbitration Panel held that the 2nd Respondent is not the employer of the workers in dispute and therefore not answerable to the claims of the Appellant.

 

  1. AN ORDER granting the reliefs sought by the Appellant against the 2nd Respondent at the Industrial Arbitration Panel

 

  1. A DECLARATION that the 2nd Respondent by performing the obligations of an employer as provided in Section 17 of the Labour Act CAP L1 Laws of the Federation of Nigeria 2004 is the actual Employer of members of the Appellant and is also answerable to the claims of the Appellant.

 

  1. A DECLARATION That by virtue of Section 5 and 25 of the Trade Unions (Amendment) Act 2005, the Respondents have a statutory duty to acknowledge the Appellant as a trade union that has the jurisdiction and authority to unionize their employees.

 

  1. A DECLARATION that workers and members of the Appellant that were recruited by the 1st Respondent on behalf of the 2nd Respondent and working in the 2nd Respondent (West Africa Catering Nigeria Limited) falls within the Jurisdictional Scope of the Appellant as stipulated in the Third schedule Part B No. 12 of the Trade Unions Act Cap T14 Laws of the Federation 2004.

 

  1. A DECLARATION that the Respondents should put in place and negotiate a Collective Agreement and Condition of Service for its workers with the National Union of Hotels and Personal Services Workers.

 

  1. AN ORDER directing the 2nd Respondent to recall and reinstate the 130 workers whose employment was wrongfully terminated as a result of asking for better work conditions and welfare to their respective posts forthwith without any loss as to seniorities, salaries position and other emoluments.

 

  1. AN ORDER directing the Respondents to deduct Check-off dues in respect of all junior Staff of members of the Appellant working with the 2nd Respondent and pay same to the Appellant.

 

APPELLANT BRIEF OF ARGUMENT filed on 7th April, 2017.

 

ISSUE

  1. Whether the Honourable Industrial Arbitration Panel was right in holding that The 3rd Party (2nd Respondent) is not the employer of the workers in dispute and therefore not answerable to the claims of the Party (Appellant).

 

  1. It is counsel’s submission that the 2nd Respondent fulfils all obligations and duties of an employer as provided in Section 17 Labour Act.

 

  1. Counsel contended that the Honourable lAP clearly failed to examine and evaluate exhibits before it and that where a trial court fails to examine and evaluate exhibits thoroughly, an appellate court is entitled to do so and make findings thereon. GONZEE (Nig) LTD V N.E.R.T.C (2005) 13 NWLR (PT 943) 634. SEC. IWO L.G V ADIGUN (1992) 6 NWLR (PT 250) 723, FSB INTERNATIONAL BANK LTD V IMANO NIG LTD (2000) 11 NWLR (PT 679) 620, IWUOHA V NIPOST LTD (2003) 8 NWLR (PT 822) 308; ABI V C.B.N (2012) 3 NWLR PT 1286 AT 1 PP AT PGS 27-28 PARAS F-B.

 

  1. Counsel prayed the Honourable Court to look and evaluate all the documentary evidence that was laid before the lAP by the parties in this appeal as the law is clear that as regards documentary evidence, an appellate court is in as good a position as a trial court in its evaluation. TUKUR V UBA (2013) 4 NWLR PT 1343 AT 90 PP PG 130 PARAS F-H. See also OGUNDELE V AJIRI( 2009) 18 NWLR (PT 1173) 219, FSB INTERNATIONAL BANK; TD V. IMANO (NIG) LTD (2000) 11 NWLR (PT 679) 620, GONZEE(NG) LTD V NIGERIAN EDUCATIONAL RESERACH & DEVELOPMENT COUNCIL (2005) 13 NWLR (PT 943) 643.
  2. It is counsel’s submission that the law is well settled that refusal of an employer to accord recognition to a trade union to unionize eligible members in its employment will be ground for a valid trade dispute even if the union is yet to form a branch on the employer’s premises. Management of Tuyil Nigeria Limited v. National Union of Chemical, foot wear, Rubber, Leather and Non-Metallic Product Employee (Unreported) Suit No. NIC/9/2003, delivered on January 23, 2008 by The National Industrial Court; MIX AND BAKE FLOUR MILL INDUSTRIES LTD V NATIONAL UNION OF FOOD BEVERAGE AND TOBACCO EMPLOYEES (NUFBTE) (1978-2006) DNJIC 232, (2004) 1 N.L.L.R. (Pt.2) 247.

 

  1. Counsel submitted that an employer does not have the locus standi to determine the eligibility of its workers to join a Trade Union or which Union should the workers belong to for the purposes of Trade Union activities; as the law is that registration is deemed, recognition is automatic and deduction of check off dues compulsory, being based on mere eligibility to be a member of a Trade Union. Nestoil Plc. v. NLIPEN6 (2012) N. L. L. R (Part 82) 90.

 

  1. He pointed out that the Supreme Court has held that admission of a party in law is the best evidence in the sense that the opposing party need not make any effort to prove the admitted fact. Thus, that in civil cases, admission by a party is evidence of the facts asserted against him and a party who admitted a fact in his pleadings is bound by such admission and is stopped from denying the fact admitted. And a court of law is entitled to give judgment based on the admission by a party if the admission is relevant to the facts in issue. SALAWL) V YLJSUF (2007) 12 NWLR PT 1049 AT PG 707 PP PG 734 PARAS F-H.

 

  1. In its reaction, the respondent filed a respondent’s brief on the 24th April 2017 but dated the 4th of May 2017. Raising there in the sole issue:

ON WHETHER 2ND RESPONDENT (WEST AFRICA CATERING NIGERIA LTD) IS THE EMPLOYER OF MEMBERS OF THE APPELLANT IN THE TRADE DISPUTE HEREIN AND ANSWERABLE TO THE CLAIMS OF THE APPELLANT

 

  1. Arguing that by Section 17 of the Labour Act Cap L1 LFN 2004 clearly provides that it is the duty of an employer to provide work relying on same.

 

The 1ST RESPONDENT’S in their BRIEF OF ARGUMENT filed on 4th May, 2017 raised one sole ISSUE

 

  1. Whether the lAP was correct when based on the various contracts of service between the 1st Respondent and its former employees, it held that the said employees were staff of the 1st Respondent, NAMID NIGERIA Limited and not staff of the 2nd Respondent, West African Catering Nigeria Limited?

 

  1. Counsel submitted that in Law it is not how, where, the mode of payment of salary or the assignment given to an employee that determines the employer of the employee. What determines the employer and employee relationship is the contract of employment. In this case, the Appellant as the 1st Party presented contracts of employment as Exhibits H2, 22, 2 at pages 25 —30 of the record.

 

  1. Furthermore, that in law, offer and acceptance constitute a valid and binding contract and that in this case, there is a valid contract of employment. Obaika v B. C. C. Plc. (1997) 10 N.W.L.R (Part 525) 435 at 447 paragraph B, Edozie, JCA (as he then was).

 

  1. Counsel contended that after the former employees of the 1st Respondent entered into their contracts of service with the 1st Respondent, they have now stubbornly urged the Honourable Court to hold that they were employees of the 2nd Respondent. Posing the question; ‘did they enter into any contract of service or employment with the 2nd Respondent?’ he responded in the negative, relying on the case of Obajimi v Adediji (2008) 3 N.W.L.R (Part 1073) 1 at 14 paragraphs D-E.

 

  1. He urged the Honourable Court to resist the invitation of the Appellant to create a contract of employment between its members and the 2nd Respondent and that in any event, the former employees of the 1st Respondent entered into their respective yearly contracts with the 1st Respondent. Thus, in law they are bound by the said contracts and the terms therein. Agbareh v Mimra (2008) 2 N.W.L.R (Part 1071) 378 at 412 paragraphs G-H.

 

  1. Counsel submitted that where the terms in a contract are clear and unambiguous, the court must give effect to the ordinary words of the contract. Amede v UBA Plc. (2008) 8 N.W.LR (Part 1090) 623 at 659 — 660 paragraphs H-A.

 

BRIEF OF ARGUMENT BY THE 2ND RESPONDENT (WEST AFRICA CATERING NIGERIA LIMITED filed on 4th May, 2017.

 

ISSUE

  1. Whether the Honourable Industrial Arbitration Panel was right in holding that the 3rd Party (2nd Respondent) is not the employer of the workers in dispute and therefore not answerable to the claims of the 1st Party (Appellant).

 

  1. Learned Counsel submitted that appellant (and indeed any person) who claim that he was employed by the 2nd Respondent and that certain terms or conditions govern or apply to his employment to enable him make claims do have a bounding duty not only to place such materials before the court, but also go further to lead credible evidence in proof thereof; and that it is not the duty of the employer to prove any such terms or employment or breach thereof. IBAMA Vs. SPDC (NIG) LTD (2005) 17 NWLR (pt. 954) 364 ratio; WAEC Vs. QSHIONEBO (2006) 12 NWLR (pt. 994) 258 ratio 4; KATIO Vs. CBN (1999) 6 NWLR (pt. 607) page 390.

 

  1. He contended that this court should not place something on nothing and expect it to stand just as the court cannot make a case for the Appellant which was not made out by them. TRADE BANK PLC Vs. DELE MORENIKEJI (NIG) LTD (2005) 6 NWLR (Part 921) 309 ratio 8.

 

  1. Counsel argued that having not employed the said workers, 2nd Respondent cannot also terminate their employment or be answerable to their said claim and that the law on contract of master and servant relationship without statutory favour is now well streamlined, in that a master can terminate his servant’s services anytime and even for no reason. That the servant’s remedy is in damages with one month salary in lieu of notice but howsoever, the employment remains effectively terminated. LAWRENCE JINGBAGH Vs. UNION BANK OF NIGERIA PLC (2001) 2 NWLR (pt. 696) page 11 AT 13; CCB NIGERIA LTD Vs. NWANKWO (1993) 4 NWLR (pt. 286) 159 ration 11.

 

  1. He submitted that this court should not as a matter of routine intervene to re-evaluate evidence especially where the Judgment of the lower court or Panel is correct and that this is even so where the Judgment is right but the reasons are wrong. NIGERIAN INSTITUTE OF INTERNATIONAL AFFAIRS V. MRS. T. O. AVANFALU (2007) 2 NWLR (Part 1018) 246 at 256 paragraph B.

 

  1. However, that the appellate court may do so where the findings of the trial court are perverse or do not flow from the evidence. UMOGBAI V. AIYEMHOBA (2002) 8 NWLR (Part 770) 687 at 690.

 

APPELLANT’S REPLY BRIEF IN OPPOSITION TO 1ST RESPONDENT’S BRIEF OF ARGUMENT DATED 21ST DAY OF APRIL 2017 AND 2ND RESPONDENT’S BRIEF OF ARGUMENT DATED 26TH DAY OF APRIL 2017 filed on 16th May, 2017.

 

  1. It is counsel’s submission that the 2nd Respondent by issuing members of the Appellant with its staff identity card ( see Exhibit H4 AT PAGE 34 OF THE RECORD) , paying members of the Appellant their monthly salary for work done ( See Exhibit H 3 (1-3) AT PAGES 31 ,32 AND 33 OF THE RECORD) , providing members of the Appellant with their daily work and also the LETTER OF UNDERTAKING OF NOT PARTICIPATING IN UNION which was issued to members of the Appellant by the 2nd Respondent ( see EXHIBIT H27 as contained in page 224 OF THE RECORD) clearly shows that the 2nd Respondent has by its conduct demonstrated to be the employer of members of the Appellant.

 

  1. He argued further that the law is clear that a party who by his declaration, made another party to believe a thing to be true and act on such belief, is not allowed to deny the truth of that act. Section 169 of the Evidence Act, 2011; GOVERNOR EKITI STATE V OJO (2007)16 W.R.N AT 56 PP PG 78 LINES 2 5-25; Per Tijani Abdullahi, JCA relying on the case of OTTO V MOBAMIJE (2004) 17 NWLR PT 903 489 at page 504 and ONDO STATE UNIVERSITY V FOLAYAN (1994) 7NWLR (PT. 354) 1 SC PG 34 AT PG 61.

 

  1. Counsel maintained that a document speaks for itself and that a document tendered in court is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict its contents except in cases where fraud is pleaded, documentary evidence we submit, being permanent in form is more reliable than oral evidence, and it is used as a hanger to test creditability of oral evidence. ANYANYU V UZOWUAKA (2009) 13 NWLR PT1159 AT 445 PP 468 PARAS A-b; C.D.C (NI6) LTD V SCOA (NI&) LTD (2007) 6 NWLR PT 1030 AT 300 PP PG 366 PARAS 6-H.

 

  1. Counsel submitted that the law is well settled that extrinsic evidence is not admissible to add, vary or subtract from terms of any written instrument or contradict the terms of a written instrument. LARMIC V D.P.M.S LTD (2006)12W.R.N AT 150 PP PG 177 -178 LINES 40-15; UNION BANK OF NIGERIA LTD V OZIGI (1994) 3 NWLR (PT.333) 385. EKE V ODUFIN (1961) ALL NLR 842, COLONIAL DEVELOPMENT BOARD V KAMSON (1955) 21 NLR 75, MOLOLADE V MOLADE (1958) SC NLR 206.

 

  1. Furthermore, that when faced with oral and documentary exhibits, the best course of action by the court is to use the documentary exhibits to resolve oral evidence. ONWUTEAKO V DAVCO TECHNICAL SERVICES SUPPLIED LTD (1980) 2 FCA 62, FASHANU V ADEKOYA (1974) 6 SC 83, OLUJINLE V ADEAGBO (1988) 2 NWLR (PT 75)238; KIMDEY V MIL.GOVERNOR GONGOLA STATE (1988) 2 NWLR PT 77; LAMINU V MAIDUGU (2015) 7 NWLR PT 1458 AT 289 PP PG 323 PARAS F-G.
  2. Counsel submitted that the law is well settled that the evaluation of evidence is primarily the function of trial court. However, where the trial court fails to evaluate such evidence properly or at all, as it happened in the present case, the appellate court can intervene and itself re-evaluate the evidence particularly where the bulk of the evidence is documentary as was the situation in this case. NARUMAL & SONS (NIG) LTD V NIGER BENUE TRANS .CO. LTD (1989) 2 NWLR (PT 106) 730, IWUOHA V NIPOST (2003) 8 NWLR (PT 822) 308, EBBA V OGODO (2000) 10 NWLR PT 675 AT 387, WHYTE V JACK (1996) 2NWLR (ptj3l) 407, AUDU V OKEKE (1998) 6 NWLR PT 555) 557; CPC V OMBUGADU (2013) 44 W.R.N AT 1 PP PG 59 LINES 35-45.

 

  1. It is counsel’s contention that the Honourable lAP clearly failed to examine and evaluate exhibits before it and that where a trial court fails to examine and evaluate exhibits thoroughly, an appellate court is entitled to do so and make findings thereon. GONZEE (Nig) LTD V N.E.R.D.C (2005) 13 NWLI (PT 943) 634. SEC. IWO L.G V ADIGUN (1992) 6 NWLR (PT 250) 723, FSR INTERNATIONAL BANK LTD V IMANO NIG LTD (2000) 11 NWLR (PT 679) 620, IWUOHA V NIPOST LTD (2003) 8 NWLR (PT 822) 308. See also ABI V C.B.N. (2012) 3 NWLR PT 1286 AT 1 PP AT PGS 27-28 PARAS F-B.

 

  1. Counsel urged the Honourable Court to evaluate all the documentary evidence that was laid before the lAP by the parties in this appeal as the law is clear that as regards documentary evidence, an appellate court is in a good position as a trial court in its evaluation. TUKUR V UBA (2013) 4 NWLR PT 1343 AT 90 PP PG 130 PARAS F-H. See also OGUNDELE V AJIRI (2009) 18 NWLR (PT 1173) 219, FSB INTERNATIONAL BANK; TD V IMANO (NIG) LTD (2000) 11 NWLR (PT 679) 620, GONZEE (NG) LTD V NIGERIAN EDUCATIONAL RESERACH & DEVELOPMENT COUNCIL (2005)13 NWLR (PT 943) 643.

 

  1. Parties argued their respective briefs, on the23rd October 2017 I the course of the adoption the /Court asked the parties to address the court on the applicability or otherwise of the concept of triangular or co employment in the employment relationship before the court. Parties in response, filed their respective additional addresses.

 

ADDITIONAL BRIEF OF ARGUMENT BY THE 2ND RESPONDENT WEST AFRICA CATERING NIGERIA LIMITED was filed on 2nd November, 2017.

 

  1. Learned Counsel submitted that the legal concept of co-employment or triangular employment has its fountain or landscape, so to speak, in our Labour jurisprudence and it relates to or touches on the bounding employment relationship between employee and employers. STEPHEN AYAOGO & ORS V. MOBIL PRODUCING NIGERIA UNLIMITED & ANOR (2013) 30 NWLR (PART 85) 95; PETROLEUM AND NATIONAL GAS SENIOR STAFF ASSOCIATION V. MOBIL PRODUCING NIGERIA UNLIMITED (2013) 32 NWLR (PART 92) 243; OYEWUMI OYETAYO V. ZENITH BANK PLC (2012) 29 NWIR (PART 84) 370.

 

  1. He submitted that where the Claimant fails to discharge the evidential burden, it will not be the business of any court to create an employment relationship where non-existed or supplied facts or evidence to fill any lacuna in the case. See the case of REM OIL SERVICES LTD V. ENDWELL TARDING CO. LTD (2003) ALL FWLR (PART 152) 101 RATIO 1 & 2.

 

APPELLANT WRITTEN BRIEF ON THE PRINCIPLE OF CO-EMPLOYMENT AS IT RELATES TO THE APPEAL HEREIN filed on 6th November, 2017.

 

ISSUE

  1. Whether the Principle of Co-employment is recognised in Nigeria and applicable to the facts and circumstances of this appeal.

 

  1. Counsel submitted that the obligations of an employer as performed by the 1st and 2nd Respondent gives birth to the concept of triangular employment relationship and subsequently, the creation of Co-Employment status as held by this Honourable Court in the case of OYETAYO V. ZENITH BANK (2012) 29 N.L.L.R PT 84 AT 370 PP PG 420 PARAS E-F.

 

  1. It is counsel’s submission that the position of the law with respect to Co -employment is also that where the two companies are such that the subsidiary is totally integrated into and under the control of the parent company, the court will hold that there is Co-employment relationship and both companies would be held to be bound by the duties and obligations in respect of employment. OYETAYO V ZENITH BANK (supra) P 421 PARAS B-E, Honourable Justice B.B. relying on the case of -181,1994 (3) NWLR (PT330 UNION BEVERAGES LTD V PEPSICOLA INTERNATIONAL LTD (1994) 2 SCNJ 157 AT 180-1811994 3 NWLR PT 330; ONUMALODI V NNPC (2004) 1 N.L.L.R PT 2 AT 304 PP PG 323 PARAS D-H.

 

  1. It is counsel’s submission thus, that the 1st Respondent is the tool and agent of the 2nd Respondent as it recruits members of the Appellant on behalf of the 2nd Respondent and that it is important to state that both the 1st Respondent and 2nd Respondent fall within the interpretation and definition of employer as provided in Section 91 of the Labour Act.

 

  1. He further submitted that the actions of the 2nd Respondent by carrying out the duty of payment of wages and provision of daily work to members of the Appellant in line with Section 17 of the Labour Act, the 2nd Respondent holds a Co-employer status with the 1st Respondent who recruited members of the Appellant on behalf of the 2nd respondent. ANYAOGO AND OR5 V M.P.N UNLIMITED AND ANOR (2013) 30 N.L.L.R PT 85 AT 95 PP 120 PARAS A-B, PG 117 PARAS D-H.

 

1ST RESPONDENT’S FURTHER ADDRESS filed on 2nd November, 2017.

 

  1. Counsel pointed out that the terms of reference in the trade dispute leading to this appeal are:

 

  1. i)Refusal to recognize the Union.
  2. ii)Wrongful termination of appointment of about one hundred and thirty (130) workers by management for asking for pay raise and engaging in work stoppages that led to shut down of the company operation.

iii)                Withholding the workers’ salaries and pay off by the management. (Please see page 143 of the record).

 

  1. Furthermore, that the Industrial Arbitration Panel made an award on the 10th day of November, 2016, of which the 7 awards are numbered 1-7 and that this appeal is against award No. 1 at page 277 of the record, which is as follows:

 

“The 3rd party is not the employer of the workers in dispute and therefore not answerable to the claims of the 1st party”.

 

  1. Counsel submitted that in this case, the undisputed facts are:

 

  1. i)International Oil Companies (IOCs) award contracts to drilling companies to drill oil for them on fixed contracts. In this case, the drilling companies are Pacific Drilling and Sea Drill.

 

  1. ii)West African catering Nigeria Limited is a catering contractor to Pacific Drilling and Sea                      Drill on a fixed one year contract. In turn West African Catering Limited executed one year                     contract with NAMID Nigeria Limited.

 

  1. ii)The employees of NAMID Nigeria Limited signed fixed contract of employment for a period of one year spelling out the terms and conditions, including agreed pay.

 

iii)                            The Appellant’s members were deployed to offshore oil rigs in the Atlantic Ocean namely: Bora, Scirocco and West Capella owned by Pacific Drilling and Sea Drill.

 

  1. iv)Please Note: The Appellant’s members do not claim to be employees of the International Oil Companies or Pacific Drilling and Sea Drill where they render catering services.

 

  1. v)There is no gainsaying that it is Pacific Drilling and Sea Drill, owners of the 3 oil rigs, that determine the scope of work and supervise the Appellant’s members on their 3 oil rigs.

 

  1. He submitted that the following cases define “Co-employment” or “tripartite employment”:

 

  1. i)Ogetago V Zenith Bank Plc (2012) 29 N.L.L.R (Part 84) 370.
  2. ii)Ayaogo V M.P.N Unlimited & Anor (2013) 30 N.L.L.R (Part 85) 95.

iii)                Pengassan V M.P.N Unlimited (2013) 30 N.L.L.R (Part 95) 243.

 

  1. Learned Counsel maintained that the complaint of the Appellant in paragraphs 11.0 and 12.0 at page 9 of its brief of argument is one of outsourcing of labour and that this in itself is not illegal. That this court made this abundantly clear in the case of PENGASSAN V MOBILE PRODUCING UNLIMITED (Supra) at 327 paragraphs C-D.

 

  1. On the   28th November 2017 all the parties adopted their respective appeal briefs and written addresses, adumbrated their positions accordingly and this matter was adjourned for Judgement.

Court’s Decision

  1. We, having carefully summarized the position of all sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their submission are herewith incorporated in this judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the appellants appeal.
  2. The crux of the appeal is the finding of the IAP that the 2nd defendant as not the employer of the appellants members. Considering that the position of the law is as enjoined by the ILO, the decided cases of the NIC that in determining the existence of an employment relationship the guiding principle is the primacy of facts i.e. in determining whether there is an employment relationship the court is guided by the facts of what was actually agreed and performed by the parties, and not by the name the parties gave to the contract. See the case of NESTOIL PLC V. NUPENG [2012] 29 NLLR (PT. 82) 90, see also the case of DACAS V. BROOK STREET BUREAU (UK) LTD [2004] IRLR 358 AND JAMES V. LONDON BOROUGH OF GREENWICH [2008] IRLR 302, CABLE & WIRELESS PLC V. MUSCAT [2006] IRLR 354.
  3. Worthy of note is the review of the last two cases by Learned authors Richard W. Painter and Ann E. M. Holmes in their book, Cases & Materials on Employment Law (Oxford University Press), 8th Edition, 2010 at page 62 assert that:

…a contract will only be implied between an agency worker and the end-user in the most exceptional of circumstances – only where it is necessary to do so in order to explain the work undertaken by the worker for the end-user. This does not depend on the length of service with the end-user…or on the degree to which they have been integrated into the workforce, but instead is likely to be relevant mainly in cases where the agency relationship itself can be regarded as a sham, or where there have been direct negotiations on terms and conditions between the end-user and the agency worker. This means that few agency workers will have unfair dismissal rights against the end-user unless and until Parliament legislates otherwise (see also Muschett v. HM Prison Service [2010] IRLR 451).

  1. Considering that this case is before this court in its appellate jurisdiction we are of the opinion that the interest of justice would be best met by the suit being remitted back to the IAP for the re hearing and consideration of the following issues.

 

  1. Whether the circumstances of this case do not present as an obscure employment relationship as envisaged by the ILO Convention on Employment Relationship and Decent Work and
  2. Whether or not the employment relationship between the parties does not amount to a triangular or co employment relationship.

 

  1. For these reasons and on the authority of Section 8 of the NICA 2006 we hereby order a re- hearing of this matter by the IAP

 

  1. The matter is accordingly remitted to the IAP for re hearing by a panel different from the one that heard this matter previously.

 

  1. This is the court’s judgement and it is hereby entered.

 

 

……………………………………………

HON. JUSTICE E. N. AGBAKOBA

PRESIDING JUDGE

 

 

…………………………………..                                            ………………………………….

HON. JUSTICE O. Y. ANUWE                                         HON. JUSTICE R. B. HAASTRUP

                  JUDGE                                                                                      JUDGE

 

 

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