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1. The claimant had filed this action on 13th November 2014 vide a Writ of Complaint accompanied by other originating processes praying for the following reliefs – (1) An order that the first defendant shall pay the sum of N320,000.00 to the claimant company forthwith being hotel accommodation and transport expenses collected from the claimant company by the first defendant in February and March 2012 for trips to some parts of Northern Nigeria which the first defendant never made. (2) An order that the first and second defendants shall pay the sum of N569,000.00 to the claimant company forthwith being the commission which the first defendant colluded with the second defendant to collect from the claimant company, cashed with the aid of the second defendant and converted to the use of the defendants without the second defendant rendering any service to the claimant company. (3) As an alternative to claim 2 above, an order that the claimant company shall retain and sell the first defendant’s used Honda Car with registration Number CQ 413 MUS in its custody to offset part of the claimant company’s money wrongly converted to personal use by the first and second defendants as stated in claim 2 above. (4) An order that the first defendant shall pay the sum of N333,684 to the claimant company forthwith being commission which the first defendant collected from the claimant company in his personal name as commission due to one Salem Kareem Bolaji but which sum the first defendant converted to his personal use with the aid of the said Salem Kareem Bolaji and without the said Salem Kareem Bolaji rendering any service to the claimant company. (5) An order that the first defendant shall pay the sum of N640,000 to the claimant company forthwith being the unspent part of the sum of N840,000 given to the first defendant by the claimant company to rent an apartment for the company in Abuja which sum the first defendant converted to his personal use and has failed and refused to refund to the claimant company. (6) Cost of this action in the sum of N500,000. 2. At this Court’s sitting of 10th March 2015, this Court noted that from the pleadings of the claimant, the 1st defendant is first said to be a freelancer who was later made a permanent employee. There was no evidence of the letter of employment, thus raising the issue whether there is actually an employment relationship between the parties capable of activating the jurisdiction of this Court. Parties starting with the claimant were asked to address the Court on this by filing written addresses. The 1st defendant, however, proceeded to file on 8th September 2015 a motion on notice praying the Court to dismiss the claimant’s suit for abuse of judicial process. In a considered ruling delivered on March 9, 2017, this Court struck out relief (3) leaving out reliefs (1), (2), (4), (5) and (6), which then became respectively reliefs (1), (2), (3), (4) and (5). This Court went on to hold thus as per paragraphs 9 and 10 of the ruling: 9. …Does this Court have jurisdiction over these reliefs especially, save for paragraph 4 of the statement of facts wherein the 1st defendant is said to have transited from a freelance sales person to an employee, there is actually no evidence in the originating processes actually showing the 1st defendant to be an employee (in the true sense of the word) of the claimant. Even when in paragraph 4 the 1st defendant is said to be an employee, the pleading is that he was “posted to Abuja on a salary, placed on a monthly sales travel and hotel accommodation expenses allowance of N160,000 and is entitled to earn a commission as an incentive for better performance on every contract he secures for the company”. Does this pleading actually show the 1st defendant to be an employee in a contract of service (in which event there is jurisdiction), or one in a contract for service (in which event there is no jurisdiction)? There is no doubt as to the 2nd defendant not being an employee. Paragraph 3 of the statement of facts describes him as an area brother of the 1st defendant who lives in the same neighbourhood with the 1st defendant at Otta, Ogun State and is a dealer in petroleum products and operates a petrol station at Ibadan, Oyo State. His being sued with the 1st defendant in this suit merely reinforce the question whether there is an employment relationship between the parties as to activate the jurisdiction of this Court. This was the issue the Court asked parties to address it on. The claimant had actually filed a written address on 9th April 2015 but withdrew same on 15th December 2015 on the ground that it has been overtaken by events, most likely given the motion for dismissal filed by the 1st defendant. I shall leave this issue open, awaiting the evidence that the claimant will lead as to the actual status of the relationship between it and the defendants so as to ascertain whether in fact this Court has jurisdiction over this case. 10. Without prejudice to the issue of jurisdiction as raised by the Court and explained in paragraph 9 above, it is my holding that the instant suit is not an abuse of court process… 3. The claimant proceeded to file on 6th June 2017 a written address on the issue of competence of the suit as raised suo motu by the Court. The claimant had also applied and was granted leave to bring in additional documents. Since the defendants were not in Court and had no legal representation, they filed nothing as to the issue of competence of the suit as raised by the Court. 4. The claimant submitted two issues for consideration, namely: (1) Whether the complaint before the Court is competent in view of the additional lists of documents brought before the Court after filing the complaint without the letter of appointment of the 1st defendant. (2) Whether the non-attachment of a letter of appointment to the complaint before the Court affects the competence of the Court to hear the complaint before the Court. 5. In addressing issue (1), the claimant referred to paragraphs 2 and 4 of the statement of facts and then submitted that a careful scrutiny of the Rules of this Court particularly Order 3 Rule 9(a) reveals that what the Rules of other Courts refer to as “statement of claim” is referred to in the Rules of this Court as “statement of facts”. That the statement of facts is also required to establish a cause of action. Therefore, that what the Rules of this Court referred to as “statement of facts” is essentially the pleadings of the claimant in support of its complaint. Also, that Order 3 Rule 9(d) requires the claimant to accompany the complaint with copies of documents to be relied on at the trial. That a letter of appointment, whenever it is available, is ideally one of the documents a claimant is expected to accompany his complaint with. However, that where a letter of appointment is not available, the Court can infer the existence of an employer/employee relationship from other documents that the claimant places before the Court. That having submitted that “the statement of facts” referred to in Order 3 Rule 4(i) of the Court constitutes the pleadings of the claimant upon which it anchors its case, that pleadings are nothing but a summary of the material facts upon which the party pleading intends to rely so as to invoke the jurisdiction of the Court and to enable that Court proceeds to adjudicate on the subject matter of the case filed before it. That the object of the statement of facts filed by the claimant to accompany his complaint in this suit is to enable the Court and the adverse parties to know the material facts upon which he will proceed at the trial to establish his claim against the defendants. That in order to understand the nature of pleadings and what the pleadings of parties to a civil suit is expected to contain, the claimant referred to Francis Ikwure Okagbue v. Janet Romaine [1982] 5 SC 133 at 154 - 155, where it was held that: The expression that evidence in respect of matters not pleaded goes to no issue, like the foregoing decisions in which the expression has been approved, is only confirmatory of the well-known principle or rule of pleading (repeated today in nearly all the rules of the High Courts) that a party must plead the material facts on which he relies. Nothing in these decisions suggests that a party to an action must as the learned senior advocate appearing for the appellant urged on us - plead the evidence by which he intends to prove the salient or principal facts stated in his pleadings and on which he relies. The rule of pleading is and has always been that every pleading must contain only a statement of material (repeat, material) facts on which a party to an action relies and not (repeat, not) the evidence by which they are to be proved. It must, however, always be borne in mind that all facts which tend to prove the fact in issue will be relevant at the trial, but they are not “material facts” for pleading purposes… 6. To the claimant, in view of the above position of the law relating to what a party to an action is expected to plead and with particular reference to the National Industrial Court, what is expected of a claimant seeking to invoke the jurisdiction of the Court is to plead among other facts sufficient facts stating the statue of the defendant as an employee of the claimant without more, That where there is a letter of appointment this could be attached to the list of documents to be relied upon by the claimant at the trial; where no letter of appointment is attached especially where the parties have not reduced the contract into writing but parties have by other documents and their conduct implied the existence of an employer/employee relationship or where there is admission by the defendant that he or she was an employee of the claimant then there will be no need to file copies of the letter of appointment of the defendant, as admitted facts need no further proof. Furthermore, that it is only where the statement of facts before the Court did not disclose the status of the defendant as an employee of the claimant that the issue of the competence or otherwise of the complaint before the Court should be raised so as to determine whether the complaint is one which falls within the jurisdiction of the Court. In concluding issue (1), the claimant submitted that a letter of appointment of the defendant is one of the means by which the claimant can prove that the defendant was at all material times an employee of the claimant. That such proof will be unnecessary where there is an admission of that status by the defendant especially when the issues raised by the complaint before the Court do not relate to the emolument of the 1st defendant as in this case. 7. On issue (2), the claimant considered the position of the law on the competency of a Court. To the claimant, a Court is competent as per Madukolu and ors v. Nkerndilim [1962] 1 All NLR 587 at 594 when: (1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and (2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and (3) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. The claimant then submitted that a careful scrutiny of the statement of facts before the Court will disclose that it does not offend any of these principles of law. That the Court is properly constituted. That the subject matter is within the jurisdiction of the Court as the fact stated in the statement of facts clearly shows that this is an action to recover money from an employee by a former employer. That even though the 1st defendant denied that he was ever an employee of the claimant, if leave is granted to file the second additional documents, it will show that the defendant was not stating the truth when he said his employment with the claimant company ceased on 29th February 2010 but that his employment continued at the material time. That the complaint is also initiated by the due process of law. 8. The claimant went on that it is pertinent to note that the claimant has since filed a second additional list of documents, which application is pending before the Court and that all issues relating to the competence of the complaint and the Court will be obviated as soon as that application is granted as documents showing the status of the 1st defendant as an employee of the claimant would be made available to the Court and the defendants. Finally, the claimant submitted that the second additional list of documents sought to be filed by the claimant is to show the status of the 1st defendant as an employee of the claimant at all material times and the documents constitute the evidence by which the claimant will prove the material fact already pleaded in paragraphs 2 and 4 of the statement of facts before the Court relating to his status as an employee of the claimant at all material times. The claimant then urged the Court to hold that the complaint before the Court is competent with the second additional list of documents sought to be filed and that the complaint will only be incompetent if the claimant had not pleaded the status of the 1st defendant as an employee of the claimant in any of the paragraphs of the statement of facts before the Court. COURT’S DECISION 9. The issue before the Court is whether this suit is competently before this Court - an issue that can only be determined if the relationship between the parties is one of an employment relationship since this Court has jurisdiction over contracts of service, not contracts for service. See Mr. Henry Adoh v. EMC Communications Infrastructure Limited [2015] 55 NLLR (Pt. 189) 546 NIC, Ozafe Nigeria Limited v. Access Bank of Nigeria Plc unreported Suit No. NICN/LA/179/2014, the ruling of which was delivered on 16th March 2016, Engr. Jude Ononiwu (Trading under the name of Judeson Chemical and Engineering Co. Ltd) v. National Directorate of Employment & anor unreported Appeal No. CA/OW/32/2015, the ruling of which was delivered on 22nd May 2015 and Bamidele Aturu (of blessed memory) in his book, Law and Practice of the National Industrial Court (Hebron Publishing Co. Ltd: Lagos), 2013 at pages 17 – 18. 10. The argument of the claimant is that its relationship with especially the 1st defendant is one of an employment relationship. For this, the claimant relied on paragraphs 2 and 4 of the statement of facts, which provide as follows: 2. The first defendant was at all material times an employee of the claimant company and was employed as a sales officer to promote, sell and solicit for contracts from agricultural farms that are prospective buyers of poultry equipment, silos and related agricultural equipment in Abuja and other northern states of Nigeria. 4. The first defendant was initially engaged in October, 2009 as a freelance salesperson to operate in Lagos and its environs and placed on sales expenses allowance and commission but he was in May, 2010 engaged as a staff, posted to Abuja on a salary, placed on a monthly sales, travel and hotel accommodation allowance of N160,000.00 and is also entitled to earn a commission as an incentive for better performance on every sales contract he secures for the company. 11. When the claimant filed this suit, like I indicated in the ruling of 9th March 2017, there was nothing on the record (e.g. the letter of employment) authenticating these pleadings and to show that the relationship between the parties was one of an employment relationship. The Supreme Court had in Shena Security Co. Ltd v. Afropak (Nig.) Ltd & ors [2008] 18 NWLR (Pt. 1118) 77 SC; [2008] 4 – 5 SC (Pt. II) 117 at pages 128 – 130 in laying down the factors that should guide Courts in determining whether a contract is one of service or for service, stressed the factor of the payment of salaries as opposed to fees or commissions. The present argument of the claimant is that a letter of employment is unnecessary in determining the relationship, whether an employment is one or not, between the parties. This may be so to the extent that a contract of employment may be in any form, and it may be inferred from the conduct of the parties, if it can be shown that such a contract was intended although not expressed. See Johnson v. Mobil Producing (Nig.) Unltd [2010] 7 NWLR NWLR (Pt. 1194) 462. Yet, the Labour Act Cap L1 LFN 2004 in section 7 is quite clear that not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying the particulars of the terms of employment. This is not the case in the instant case as no terms and conditions of employment are discernible from the documents, including the additional documents, the claimant frontloaded. 12. On 20th December 2016, the claimant filed four additional documents pursuant to the leave of Court granted on 15th December 2016. The first letter dated 29th October 2009 is one that offered “Ojewusi Olumuyiwa” “Appointment as a Sales Officer on Commission Basis”. If anything, this letter of 29th October 2009, going by Shena Security Co. Ltd v. Afropak (Nig.) Ltd & ors (supra), is sufficient proof that the contract between the parties was one for service, not one of service. The claimant’s argument, however, is that this contract for service was later changed to one of service. To show this is the second document, a memo dated 13th May 2010. The problem with this memo is that it is one from Personnel Manager to Account Department, all of the claimant. In it, the Personnel Manager informed Account Department that Mr Muyiwa Ojewusi’s appointment with the claimant has changed. That he is no longer a sales officer on commission basis but is now a staff on salary level of N25,000 with 1.5% sales commission. This memo is not directed at the 1st defendant. The claimant did not frontload any document addressed to the 1st defendant to show that his appointment with the claimant has been changed. Can the claimant change the nature of the 1st defendant’s appointment behind his back? The third and fourth documents respectively dated 1st September 2010 and 1st September 2011 are letters communicating to Mr Muyiwa Ojewusi salary increase. 13. It is these documents that the claimant cumulatively relied on to submit that where no letter of appointment is attached especially where the parties have not reduced the contract into writing but parties have by other documents and their conduct implied the existence of an employer/employee relationship or where there is admission by the defendant that he or she was an employee of the claimant then there will be no need to file copies of the letter of appointment of the defendant, as admitted facts need no further proof. This submission of the claimant is blind to the requirement of section 7 of the Labour Act as I indicated earlier which enjoin that particulars of the terms of employment must be given an employee within three months of the employment. Without the terms and conditions of the employment, how can the rights, privileges and obligations of the parties be ascertained? The critical nature of the conditions of service can be seen in the Supreme Court decision in Bukar Modu Aji v. Chad Basin Development Authority & anor [2015] LPELR-24562(SC), where it was held that waving the flag of a breach of the constitutional right to fair hearing does not provide any saving grace once the conditions of service are not pleaded and brought before the Court by a claimant who is complaining of wrongful termination of or dismissal from employment. In other words, the claimant must first plead and prove his conditions of service before any talk of breach of fair hearing can even be entertained. The conditions of service is accordingly a sine qua non in any claim for wrongful dismissal or termination; for only the conditions of service can be used to determine the wrongfulness or otherwise of the dismissal or termination. A fortiori, the claimant in the instant suit is claiming for sums of money advanced to the 1st and or 2nd defendant as expenses, commission and unspent sums which the defendants misused. Without the conditions of service authenticating the relationship between the parties, how is the Court to determine the extent of the claimant’s rights to recover as claimed? As it is, and for all the reasons so far given, I do not think that the claimant has successfully shown to this Court that there is an employment relationship between it and the defendants to activate the jurisdiction of this Court; and I so find and hold. 14. The claimant cited and relied on Madukolu and ors v. Nkerndilim (supra), and then submitted that the subject matter of this case is within the jurisdiction of the Court as the fact stated in the statement of facts clearly shows that this is an action to recover money from an employee by a former employer. The jurisdiction of this Court is over labour and employment matters. Once an employment relationship has not been shown to exist between the claimant and the defendants, the question of the second formulation in Madukolu and ors v. Nkerndilim i.e. the subject matter of the case is within the Court’s jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction, does not even arise. If anything, that second formulation has not been met. The feature of an employment relationship required to vest jurisdiction is lacking and so prevents the Court from exercising its jurisdiction. I so find and hold. 15. On the whole, and for all the reasons given, I hold that the claimant has not shown to the satisfaction of this Court that the relationship between the claimant and the defendants is one of a contract of service. This being the case, this suit is incompetent and the Court lacks the jurisdiction to hear and determine it. This case is accordingly struck out. 11. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD