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BETWEEN 1. Stephen Ayaogo 2. Ukah Innocent 3. Fasasi Ogunfolu 4. Oloruntele Adelaja 5. Tunde Adelaja 6. Kunle Obashola 7. Kehinde Harris 8. Samson Odufuwa 9. Alabi Elijah K. 10. Phillip Pesilaga 11. Edet Okon 12. Ibrahim Adeyigba 13. Adetunji Banjoko 14. Iroh Kalu 15. John Ovoyenta 16. Olusanya Omotayo 17. Ike Boniface - Claimants AND 1. Mobil Producing Nigeria Unlimited 2. Blue Chip Services Limited - Defendants REPRESENTATION Greg Anumenechi, for the claimant. Prince A. Aderele, for the 1st defendant. Felix Oyegue, for the 2nd defendant. RULING The claimants had filed a complaint on 29th October 2010 praying against the defendants for inter alia the payment of their unpaid redundancy benefits. The court had on March 21, 2012 delivered a judgment in PENGASSAN v. Mobil Producing Nigeria Unlimited unreported Suit No. NIC/LA/47/2010. The Court at its sitting of April 24, 2012 then directed the parties in the instant case to read the said judgment and determine its applicability to the instant case. In joining issues with the claimant, therefore, the 1st defendant filed a motion on notice dated 6th June 2012 but filed on 7th June 2012 praying the Court for – 1. An order striking out the name of the 1st defendant as a party in this suit as the Court lacks jurisdiction to entertain the claim against the 1st defendant in the suit; and 2. Such further order or other orders as this Court may deem fit to make in the circumstances of the suit. The grounds upon which the application is brought are – (i) By virtue of the statement of claim particularly paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, the claimants have no contract of employment with the 1st defendant; therefore, the claimants has no LOCUS STANDI to institute this action claiming redundancy or any benefit whatsoever from the 1st defendant. (ii) The contract of employment and claim involved in this dispute is between the claimants and 2nd defendant only. (iii) By virtue of the contract of employment between the 2nd defendant and the claimants, the 2nd defendant and nobody else has the sole responsibility towards the claimants for the settlement of all claims including terminal benefits when they become due and payable. (iv) The claimants have no cause of action whatsoever against the 1st defendant. In support of the motion on notice is a 7-paragraphed affidavit deposed to by Bamidele Oyewole, a litigation officer in the law firm of counsel to the 1st defendant with three exhibits attached. Also in support of the motion is a written address dated 6th June 2012. In reaction, the claimants filed a 4-paragraphed counter-affidavit dated and filed on 7th August 2012 deposed to by Kunle Obasola, the 6th claimant in the suit with six exhibits attached. Also filed by the claimants is the reply written address dated 7th August 2012. The 1st defendant did not file any reply on points of law. While all of this was going on, the 2nd defendant did not make any appearance in court. It was only on November 2, 2012 that the 2nd defendant filed its memorandum of appearance together with the defence processes and a motion on notice praying for extension of time within which to enter appearance and file the defence processes out of time. At the Court’s sitting of November 7, 2012, although the 2nd defendant was in Court, it was not represented by counsel; and so its motion of November 2, 2012 could not be moved. Of course, the 2nd defendant did not file any process regarding the motion for striking out the name of the 1st defendant. The background facts to this case, according to the 1st defendant, are that the 1st and 2nd defendants entered into a contractual relationship whereby the 2nd defendant provides driving services for the 1st defendant in Lagos and Abuja. The contract agreement defined the terms and conditions for the provision of the said services. The agreement also described the 2nd defendant as an independent contractor and not the agent or employee of the company. In order to discharge its obligation under the contract entered into with the 1st defendant, the 2nd defendant employed the services of the claimants herein as drivers. The terms and conditions of employment of the claimants by the 2nd defendant were unknown to the 1st defendant and how the 2nd defendant goes about fulfilling its obligation to its employees as far as the contract of employment is concerned is not the business of the 1st defendant. That in furtherance of an ongoing restructuring by Mobil Producing Nigeria Unlimited (1st defendant), the 2nd defendant terminated the employment of the claimants by its letters dated 30th July 2009 and paid each of them terminal benefits. Dissatisfied with what they were each paid as terminal benefits, the claimants sued the 1st and 2nd defendants for additional sums alleging that they not paid redundancy benefits. The 1st defendant is contending that it should not be a party to the suit, more so when there is no privity of contract between it and the claimants and hence this application by the 1st defendant praying that its name be struck out as a defendant in the suit. The 1st defendant then framed two issues for determination by the Court, namely – 1. Whether or not the Court lacks jurisdiction to hear the claimants’ claim against the 1st defendant in this suit on the ground that the claimants have no locus standi to institute the action against the 1st defendant. 2. Whether or not the claimants lack locus standi to institute this action against the 1st defendant on the ground that there is no privity of contract between them. To the 1st defendant, as a general rule, a contract affects only the parties thereto and cannot be enforced by or against a stranger. Thus in the case of Makwe v. Nwukor [2001] FWLR (Pt. 63) 1 at 14C, the Supreme Court held that – As a general rule, a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. Only parties to the contract can sue or be sued on the contract. In the instant case, the 1st defendant continued, there is no contract between the claimants and the 1st defendant. There are two separate and independent contracts between the parties to the suit. That in the first contract, which is a contract of service, the 1st and 2nd defendants are the only parties thereto. There is a relationship between the 1st and 2nd defendants vide a contract agreement entered into by both parties for the provision of driving services for the 1st defendant by the 2nd defendant. The agreement (Exhibit B) defines the terms and conditions for the provision of the services as well as the description of the services as set out in Annexure A attached thereto. Article 10 of the said agreement clearly described the contractor (2nd defendant) as follows – In performing services and other obligations under this agreement, contractor shall be an independent contractor and not the agent or employee of company. The relationship of employer and employee shall not exist between company and contractor or any of contractor’s employees, if any. Contractor acknowledges and agrees that, with respect to any services provided under this agreement, neither contractor nor any of its employees is eligible to participate in and shall not receive any benefit from any employee benefit plan sponsored by company and/or its affiliates. Services shall have no authority to supervise and control of contractor, and company shall have no authority to supervise contractor’s employees, representatives or subcontractors. Contractor shall have no authority to make statements, representations or commitments of any kind or take any other action binding on company, except as specifically provided in this agreement or of any order to create, nor shall the same be construed as creating, any partnership or joint operation between company and contractor, contractor’s agents, representatives and sub-contractors. In the second contract, which is a contract of employment, it is only the 2nd defendant and the claimants that are parties thereto. The claimants were employed by the 2nd defendant as drivers to enable the 2nd defendant discharge its obligation to the 1st defendant. The relationship between the claimants and 1st defendant is as defined in the service outline agreement executed between the 1st and 2nd defendants. The 1st defendant then submitted that only the parties to each of the two separate and independent contracts can enforce and are bound by the contracts. They are the only parties that can sue or be sued on it. The claimants being strangers to the contract between the 1st and 2nd defendants cannot sue and be sued on it. Also the 1st defendant being a stranger to the contract between the 2nd defendant and the claimants cannot sue or be sued on it. That in the first contract between the 1st and 2nd defendants wherein the 2nd defendant is “contractor”, the contract agreement is very clear on who bears responsibility for the settlement of claims by employees. Article 34 of the contract agreement between the 1st and 2nd Defendants in respect of claims for labour provides that – Contractors shall pay and completely satisfy all claims for labour, equipment, rental and material employed or used by it in connection with any and all services performed under this agreement, when those claims become due and payable. To the 1st defendant, the aforementioned clause clearly defines the responsibility of the 2nd defendant as the sole party responsible for the settlement of all claims for labour by any of its employees arising from the contract of service being rendered to the 1st defendant when those claims become due and payable as in the present case. The 1st defendant further submitted that since the claimants are not employees of the 1st defendant but that of the 2nd defendant and going by the aforesaid terms of the contract between the 1st and 2nd defendants, the claimants cannot lay any claim against the 1st defendant as far as their contract of employment is concerned. In the circumstance, that the 1st defendant is a stranger to the contract between the claimants and the 2nd defendant and has no business whatsoever with it. Therefore, the claimants herein have no locus standi to institute this action against the 1st defendant. The 1st defendant referred the Court to paragraphs 4 to 18, particularly paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, of the statement of claim. That it is clear from the afore-mentioned paragraphs that what the claimants are claiming are redundancy benefits as a result of their being laid-off from their employment with the 2nd defendant as per paragraph 21 of the statement of claim and the only party who has been paying salaries and emoluments is the 2nd defendant based on the contract of employment between the claimants and the 2nd defendant. The 1st defendant has absolutely nothing to do with their claim as it does not control the conditions of service of the claimants. To the 1st defendant, it is instructive to note that the claimants never referred to any agreement or contract of employment between them and the 1st Defendant in their statement of claim neither did they place any material before this Court upon which the Court can find such a relationship. The truth is that no such relationship exists between the claimants and the 1st defendant. That the relationship between the claimants and the 1st defendant is as defined in the service outline agreement executed between the 1st defendant and the 2nd defendant (claimants’ employer). Therefore, the claimants have no locus standi to institute this action/claim against the 1st defendant because there is no privity of contract between them. In Basinco Motor Ltd v. Woermann Line & anor [2009] Vol. 6 MJSC (Pt. 1) where the issue of privity of contract and locus standi to sue on the contract arose, the Supreme Court per Adekeye, JSC at pages 91 – 92 E – G stated thus – The doctrine of privity of contract portrays that as a general rule, a contract affects the parties and cannot be enforced by or against a person who is not party to it. In short, only parties to a contract can sue or be sued on the contract, even if the contract is made for his benefit and purports to give him the rights to sue or make him liable upon it. More so, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be sued upon the contract. In the light of this case, therefore, the 1st defendant submitted, it is very clear that the 1st defendant is not a party to the contract of employment between the 2nd defendant and the claimants. That the 1st defendant is a stranger to the contract. Therefore, it cannot sue or be sued on that contract even if the contract is made for its benefit. The claim of the claimants for redundancy benefits and interest thereon is a product of the contract of employment between the 2nd defendant and the claimants. Therefore, the claimants cannot sue the 1st defendant claiming the same relief from the 1st defendant when in fact the 1st defendant is not a party to the agreement to pay salaries and/or benefits. To the 1st defendant, since there is no privity of contract between them the claimants have no locus standi to sue the 1st defendant for their redundancy benefits. That it is settled law that locus standi denotes the legal capacity to institute an action in the court of law. It is a status which the claimant must have before being heard in court. It is a condition precedent to determination on the merits. Thus in order for the Court to have jurisdiction, the plaintiff must have locus standi to commence or institute the action. Locus standi is a forerunner or precursor to jurisdiction. Accordingly, where it is proved that a claimant lacks locus standi to bring an action, the Court will decline jurisdiction as it has none, referring to Basinco Motor Ltd v. Woermann Line & anor (supra) at 90 E – G. Furthermore, that where the question of locus standi comes into the issue of cause of action, a plaintiff (claimant) who has no privity of contract with the defendant will fail to establish a cause of action for breach of contract as he will simply not have a locus standi to sue the defendant on the contract, referring once again to Basinco Motor Ltd v. Woermann Line & anor (supra) at 91 D – E. In conclusion, the 1st defendant submitted that in the light of the foregoing, it is clear that the claimants lack locus standi to institute the action against the 1st defendant on the ground that there is no privity of contract between them and it follows that the Court, therefore, lacks jurisdiction to entertain the claimants’ claims against the 1st defendant. In the circumstance, the 1st defendant urged the Court to strike out the name of the 1st defendant as a party in this suit. In reaction to the submissions of the 1st defendant, the claimants gave their account of the background facts of the case. To them, the claimants instituted this action and filed their statement of claim/facts, as amended, claiming the payment of redundancy benefit from the defendants. That the 1st defendant variously published in newspapers using their usual postal address which reads PMB 12054, AND PROSPECTIVES applicants applied and were shortlisted and trained and directed to consultants/paymasters. Records show that the claimants were employed between 1985 and the year 2005. Records also show that Olakunle Ashaye & Co was initial paymaster. Records further show that the 1st defendant fixed and reviewed wages of the claimants’ categories many years before 2007 when the 2nd defendant was alleged to have entered into a service within agreement, referring the Court to Exhibits C, D and E. That “it is also on record that a communiqué issued by the Federal Ministry of Employment, Labour and Productivity struggled by NUPENG oil service companies and oil marketers in 1992 (Exhibit F) unknown situation of contract staff was encouraged which led to subsequent Collective Bargaining Agreement”. That it is not in dispute that the claimants worked primarily in the 1st defendant’s official place of business and all Collective Bargaining Agreement is for the benefit of the service to the 1st defendant. The claimants then simply rephrased the issues framed by the 1st defendant for determination as follows – 1. Whether or not the Court lacks jurisdiction to hear the claimants’ claim against the 1st defendant in this suit on the ground that the claimants have no locus standi to institute the action against the 1st defendant. 2. Whether or not the claimants lack locus standi to institute this action against the 1st defendant on the ground that there is no privy or contract between them. The claimants agreed with learned counsel for the 1st defendant that as a general rule a contract affects only the parties to it and so cannot be enforced by or against a stranger. The claimants also agreed with the wisdom of the Supreme Court in the case of Makwe v. Nwukor [2001] FWLR (Pt. 63) 1 at 14. To the claimants, the learned counsel for the 1st defendant placed reliance on Exhibit B attached to his application which is a service outline agreement No. A2106505 dated September 10, 2007 and made between the 1st and 2nd defendants on record. The claimants then submitted that Exhibit B was entered into many years after the claimants were engaged to work for the 1st defendant. That it is settled law that a court is competent when the court s properly constituted as regards numbers and qualifications of the numbers of the bench and no member is disqualified for one reason or the other, 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 the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction, referring to the cases of Madukolu v, Nkemdilim [1962] 1 All NLR 587 SC and Araka v. Ejeagwu [2000] 12 SC (Pt. 1) 99. The claimants then submitted that in order to determine locus standi, it is the statement of claim that reference has to be looked at, referring to the cases of Bongo v. Uwemedimo [1995] 8 NWLR (Pt. 411) at 22 and Douglas v. Shell Petroleum Development Co. Ltd [1999] 2 NWLR (Pt. 591) at 466. That it is trite law that a court of law has the power to make reference to the bundle of documents forming part of its own records in the determination of issues between the parties. The claimants went on to invite the Court to make reference to the statement of claim/facts as amended and the documents/annexure thereto. The claimants referred the Court to paragraphs 1 – 28 of the amended statement of claim dated the 27th day of June 2011 and the annexure thereto and then submitted that if the facts of the alleged employment particularly paragraph 4 of the amended statement of claim is taken to be correct, the question that will ordinarily suggest itself is what the import of Exhibit B attached to the 1st defendant’s application is. To the claimants, it is noteworthy that the last of the claimants was employed in 2005 whilst on the face of Exhibit B the agreement was entered into in year 2007. The claimants went on to submit that this suit is not predicated on Exhibit B as Exhibit B cannot be said to have and/or take a retroactive effect. The claimants continued that locus standi or standing to sue is the legal right of a party to an action to be heard in litigation before a court of law or tribunal. That a person is said to have locus if he has shown sufficient interest in the action and that his civil rights and obligations have been or are in danger of being infringed, referring to Olagunju v. Yahaya [1998] 3 NWLR (Pt. 542) at 501 and Okafor v. Asoh [1999] 3 NWLR (Pt. 593) 35. That for a person to bring an action in respect of any subject matter, such a person must show that he has a legal right or special interest in that subject matter, referring to Akinnubi v. Akinnubi [1997] 2 NWLR (Pt. 486) 144. The claimants went on that it is a well established principle of law that a defendant who challenges in limine the locus standi of a plaintiff is deemed to accept as correct all the averments contained in the plaintiff’s statement of claim, referring to the Supreme Court case of Adesokan v. Adegorolu [1997] 3 NWLR (Pt. 493) at 261. The claimants then urged the Court to disregard and discountenance Exhibit B attached by the 1st defendant as nothing in Exhibit B has shown that same was meant for the benefit of the claimants who were already in the service of the 1st defendant. That learned counsel attached to the 1st defendant’s application a further application which he attached the certified true copy of the judgment of this Court in Petroleum and Natural Gas Senior Staff Association v. Mobil Producing Nigeria Unlimited unreported Suit No. NIC/LA/47/2010 delivered on the 21st March 2012. The claimants agreed with the wisdom of the Court contained in the judgment of the Court aforesaid and pointed out that this Court at page 36 thereof held: “The outcome must depend on the facts found by the trial court in the particular case”. The claimants then submitted that the judgment that this Court delivered in Suit No. NIC/LA/47/2010 is in respect of Petroleum and Natural Gas Senior Staff Association v. Mobil Producing Nigeria Unlimited simpliciter. The claimants went on that they have demonstrated by credible evidence that they were paid by both the 1st defendant based on the records made available to the 2nd defendant by the 1st defendant. Also that the deposit slip already in the record of the Court’s file acknowledged how long the claimant have served not with the 2nd defendant but with the 1st defendant the basis of which part of the benefit were paid. The claimants agreed with counsel to the 1st defendant’s application but that the issue is whether the 1st defendant has the responsibility to make payments to the 2nd defendant who in turn pays the claimants for services rendered to the 1st defendant exclusively. That it is for the 1st defendant to show that they have paid monies to the 2nd defendant for the benefit of the claimants. The claimants went on to “submit that the for the welfare of employees in the category of the claimants is sanctioned and have been complied with as it relates to the welfare of employees in the category of the claimants by the 1st defendant”. To the claimants, leaned counsel for the 1st defendant placed reliance on Suit No. LD/217/2009 between Stephen Jones v. Blue Chips Service Ltd and Mobil Producing Nigeria Unlimited and the ruling of Hon. Justice S. O. Nwaka dated the 9th day of March 2011. That it is not in doubt that the High Court of Lagos State and this Court are courts of co-ordinate jurisdiction; therefore, the decision of the High Court of Lagos State is not binding on this Court. However, that the facts in that case and the circumstance surrounding the case are not the same and are not before this Court, urging the Court to so hold. That the claimants here are no longer members of the union nor still in the service of both defendants and so the import of the ruling of this Court relating to Suit No. NIC/LA/47/2010 filed by PENGASSAN who are still in employment may not suffice to do justice in the matter. That this Court is a court of justice and equity and this Court should not lend it’s ear to the evasive posture of the 1st defendant as that would amount to undue technicalities. In conclusion, the claimants submitted that from the forgoing, it is clear that the 1st defendant’s application must fail having grounded his application on locus standi relying on a document which is meant to take a retroactive effect. The claimants then urged the Court to discountenance the argument of the learned counsel and to dismiss the 1st defendant’s application. After a careful consideration of the processes and submissions of the parties, and despite both parties framing two issues for the determination of this Court, we are of the view that the basic issue calling for determination is whether this suit as couched is competently before the Court. Both parties framed this issue in the context of privity of contract and locus standi. The argument of the 1st defendant is that the contract upon which the claimants ought to claim is one the claimants entered with the 2nd defendant, not with the 1st defendant; and since the 2nd defendant is not privy to that contract, the claimants have no locus to proceed against it as it has done in the present suit. To the claimants, however, the contract supposedly entered into between them and the 2nd defendant is not the basis of their present action, but an introduction by the 1st defendant in order to shield itself from the reality in question, namely, that it deliberately contracted out the claimants (who at first were employees of the 1st defendant) to avoid the claims of the claimants against it. We must stress the point that the argument of the 1st defendant is hinged primarily on privity of contract; even the argument as to locus is a derivative and hence is hinged on that of privity of contract. The argument is that there are two contracts in issue: one between the 1st defendant and the 2nd defendant; the other between the 2nd defendant and the claimants. That since there is no contract between the 1st defendant and the claimants, the 1st defendant is not, and so cannot be held to be, privy to any contract between the 2nd defendant and the claimants. The 1st defendant proceeded to argue that in the contract between it and the 2nd defendant, by article 34, it is specifically agreed between the parties that whatever contract the 2nd defendant enters into with employees (which is what the claimants are), on no occasion is the 1st defendant to be held responsible for claims for labour. In order words, article 34 clearly defines the responsibility of the 2nd defendant as the sole party responsible for the settlement of all claims for labour by any of its employees arising from the contract of service being rendered to the 1st defendant when those claims become due and payable as in the present case. In hinging its argument on privity of contract, the 1st defendant stressed the formalism of the two contracts in issue. While the privity rule is clear in its general prescription that one cannot benefit or suffer from a contract one is not a party to, this rule remains what it is: a general rule that is not absolute. In appropriate circumstances, it admits of exceptions. So when the 1st defendant talked of the privity rule as if it is sacrosanct, it missed out the point that the rule is not absolute. The case of the claimants is that they started off as employees of the 1st defendant before the said agreement between the 1st and 2nd defendant was entered into. Only an enquiry into the merits of the case can reveal the true position of things. At the start of this case, the Court had asked parties to go through the case of Petroleum and Natural Gas Senior Staff Association v. Mobil Producing Nigeria Unlimited unreported Suit No. NIC/LA/47/2010 the judgment of which was delivered on the 21st March 2012 to see it has any application to the case at hand. The 1st defendant thinks it does and hence should influence this Court in dismissing the action as against the 1st defendant. The claimants think that the case is distinguishable from the case at hand. Only a consideration of what the Court actually held in the case can unravel the mystery. At pp. 33 – 34 of the judgment, this Court held as follows – A look at the actual relationship of the members of the appellant vis-à-vis MPNU [Mobil Producing Nigeria Unlimited] and the Forum of Contractors will reveal that the relationship yields to what the International Labour Organisation (ILO) terms disguised or objectively ambiguous employment relationship, which is meant to either mask the identity of the employer (where the person designated as an employer is an intermediary with the intention of releasing the real employer from any involvement in the employment relationship and above all from any responsibility to the workers) or mask the form in which the relationship is established (as where the nature of the employment relationship is intentionally misrepresented so as to deny certain rights and benefits to dependent workers). See generally the ILO Report titled, The Scope of the Employment Relationship (ILO Office: Geneva), 2003 at pages 24 – 25. In the instant case, the disguised employment relationship of the parties comes in the form of a triangular employment relationship (paragraph iii of the “Conclusions Reached at the end of a Mediatory meeting between PENGASSAN/NUPENG and MPN Labour Contractors Forum”, which held at the Minister of Labour’s Conference Room, Abuja on 25th January 2007 attests to this). By triangular employment relationship is meant a relationship that occurs when employees of an enterprise (the ‘provider’) perform work for a third party (the ‘user enterprise’) to whom their employer provides labour or service. The triangular employment relationship comes in a variety of forms the best known of which (and which relates to the instant appeal) is the use of contractors and private employment agencies. See The Scope of the Employment Relationship at pages 37 – 39. To the ILO – The determination of the existence of an employment relationship should be guided by the facts of what was actually agreed and performed by the parties, and not by the name they have given the contract. That is why the existence of an employment relationship depends on certain objective conditions being met (the form in which the worker and the employer have established their respective positions, rights and obligations, and the actual services to be provided), and not on how either or both of the parties, describe the relationship. This is known in law as the principle of the primacy of facts, which is explicitly enshrined in some national systems. This principle might also be applied by judges in the absence of an express rule. The ILO concluded by advising that the judge must normally decide on the basis of the facts, irrespective of how the parties construe or describe a given contractual relationship. See generally The Scope of the Employment Relationship at page 23. And at pp. 35 – 36, this Court held that – The ILO as we indicated earlier had enjoined the principle of the primacy of facts in the determination of the existence of an employment relationship. This determination should be guided by the facts of what was actually agreed and performed by the parties, and not by the name they have given the contract. That is why the existence of an employment relationship depends on certain objective conditions being met (the form in which the worker and the employer have established their respective positions, rights and obligations, and the actual services to be provided), and not on how either or both of the parties, describe the relationship…The ILO does not brand as invalid or unlawful or as wrong the triangular employment relationship; neither had it even branded the practice of outsourcing or contracting out as an unfair labour practice as the appellant made it out in some of its communications with the Ministry of Labour regarding this matter. All the ILO enjoins is that the respective laws of members States on the issue should be respected and applied. The more recent Court of Appeal cases in the United Kingdom (UK) such as Dacas v. Brook Street Bureau (UK) Ltd [2004] IRLR 358 and James v. London Borough of Greenwich [2008] IRLR 302 are pretty specific in relying on the facts of each case in determining whether an employment relationship exists in a tripartite setting. To these cases, a contract of service cannot even be implied with the end user in the tripartite setting of an agency worker under contract with and agency, which also has a contract with the end user in the absence of a finding on the relevant facts by the trial court. In fact, the implication of a contract of service between the end user and the worker in a tripartite agency situation cannot just be simply in the case of a long term agency worker situation. The outcome must depend on the facts found by the trial court in the particular case. And that although the contract of service was implied in Cable & Wireless Plc v. Muscat [2006] IRLR 354, the case was not a tripartite agency case. Reviewing these UK decisions, the duo of 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 asserts 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). What can be discerned from the decision of this Court in Petroleum and Natural Gas Senior Staff Association v. Mobil Producing Nigeria Unlimited is that it was first and foremost decided on the facts and evidence before the Court of that case; and on this score, we agree with the submission of the claimants in that regard. Secondly, the case law authorities as well as ILO prescription enjoin the principle of the primacy of facts. Whether or not the relationships in question can be described as a sham must depend on the facts of each case. Courts are to be guided by the facts of what was actually agreed and performed by the parties, and not by the name they have given the contract. On this ground we are of the opinion that the 1st defendant has a case to answer in this matter; and we so hold. The objection of the 1st defendant lacks merit and so is accordingly dismissed. We hold that this court has the jurisdiction to hear this case as framed against the 1st defendant by the claimants. The matter shall accordingly proceed to trial. Cost is put at N50,000 only payable by the 1st respondent to the claimants. Ruling is entered accordingly. ………….………………………….. Hon. Justice B. B. Kanyip Presiding Judge ………………………………………. ...…………………………………. Hon. Justice O. A. Obaseki-Osaghae Hon. Justice J. T. Agbadu-Fishim Judge Judge