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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: OCTOBER 29, 2014 SUIT NO. NICN/LA/651/2013 BETWEEN Mr. Jezreel Elo Mayor - Claimant AND 1. Eco Exim Allied Limited 2. Mr. Ajay Jain - Defendants REPRESENTATION E. U. Orofa, for the claimant. O. Oladoyin, J. O. Agboola and S. Ehizogie, for the defendants. JUDGMENT The claims of the claimant as per the complaint dated and filed on 6th December 2013 are for the following reliefs – 1. The sum of ₦1,243,100.00 (One Million, Two Hundred and Forty-Three Thousand, One Hundred Naira) only being the outstanding indebtedness of the defendants to the claimant arising from unpaid salaries, commission on goods sold, transport to and from work, feeding allowance and unremitted sums due to claimant. 2. The sum of ₦5 million being general damages for injuries suffered by the claimant to his reputation for racial abuse and slander. 3. Cost of this action. Accompanying the complaint are the statement of facts, witness statement on oath, list of documents and copies of the documents admitted and marked as Exhibits C1, C2 and C3. In reaction, the defendants filed joint defence processes i.e. the statement of defence, list of witness(es) to be called at trial, written statement on oath of the defence witness, list of documents to be relied on at the trial and copies of the document admitted and marked as Exhibits D1, D2 and D3. At the trial, the claimant testified on his own behalf as CW, while Bipin Prakash Singh, one of the Directors of the 1st defendant, testified on behalf of the defendants as DW. At the close of trial, parties were asked to file and serve their respective written addresses starting with the defendants. This they did. The defendants’ written address is dated and filed on 11th July 2014. It is erroneously indicated by the registry of the Court as having been filed on 11th June 2014 when Registrar I actually indicated on the face of the written address on 11/07/14 that the assessment on the process seems to be in order. The claimant’s written address is dated 4th August 2014 but filed on 7th August 2014. The defendants’ reply on points of law is dated 18th August 2014 but filed on 19th August 2014. On the appointed day for adoption of written addresses, only the defendants were in Court to adopt theirs. The claimant was not; as such the Court deemed his written address as adopted. The case of the claimant is that he was employed by the defendants as Marketing/Sales Representative with effect from 2nd January 2013 until 20th November 2013 when his employment was summarily terminated without notice. That the defendants never issued him a letter of employment but the terms of his employment were verbally and orally agreed upon as contained in his witness statement, paragraph 12. The said terms of employment orally agreed upon are as follows – a) Days of work – Monday to Friday (public holidays inclusive). b) Salary – N40,000.00 per month. c) 5% commission on every N1 Million worth of goods sold by him and/or to any customer he introduced to the 1st defendant. d) N1,000.00 transport fare daily. e) N200.00 feeding allowance daily. f) He is entitled to sell product above the defendant’s company price and be paid the difference by the defendants. The claimant went on that he worked diligently for the defendants but was never paid his entitlement as agreed or at all, referring to paragraph 17 of his witness statement. That on 20th November 2013, he presented the sum of N421,000.00 which said sum he collected from a customer on behalf of the defendants to the 2nd defendant whom he claimed is the alter ego of the 1st defendant, and also demanded to be paid his entitlement. The 2nd defendant refused to pay him, summarily terminated his employment and used derogatory language in the process. He then took and seized the said sum of ₦421,000.00 keeping the same as part of what the defendants owe him. The claimant equally claimed to have been racially abused and slandered in his professional and private standing to an aggravated extent to wit: being called a “Black Monkey” and a “Local Cheat” by the 2nd defendant in the presence of other members of staff. For the defendants, their case is that the claimant was not employed as a staff but as a salesman who sells on commission. The defendant affirmed that the engagement of the claimant was oral on the following terms – (a) N1,000.00 transport fare daily. (b) N200.00 feeding allowance daily. (c) 5% commission on any amount worth of goods sold by the claimant and/or to any customer the claimant introduced to the 1st defendant. To the defendants, the 1st defendant’s identity card issued to the claimant is to enable him effectively market the goods and to show evidence that the claimant has the authority of the 1st defendant to market and/or introduce its goods to customers willing to buy the goods. Also that the 2nd defendant is merely an employee and not the alter ego of the 1st defendant; and the Court lacks jurisdiction to entertain relief 2. The defendants then framed two issues for the determination of the Court, namely – 1. Whether the claimant has successfully discharged the onus of burden of proof on him of establishing the fact that he is entitled to be paid the sum of N1,243,100.00 (One Million, Two Hundred and Forty-Three Thousand, One Hundred Naira) only being the outstanding indebtedness of the 1st defendant to the claimant arising from unpaid salaries, commission on goods sold, transport fare, feeding allowance and unremitted sum due to the claimant. 2. Whether or not this Honourable Court has jurisdiction to enter judgment in favour of the claimant’s second claim arising from defamation a tortious action for the sum of N5,000,000.00 (Five Million Naira only) being general damages for injuries suffered by the claimant to his reputation for racial abuse and slander. Regarding issue 1, the defendant contended that the claimant in proof of his first claim did not tender any relevant document to show the terms of employment. That the three documents tendered by the claimant are simply the identity card (Exhibit C1), claimant’s solicitor’s letter dated 25th November 2013 (Exhibit C2) and the 1st defendant’s solicitor’s letter (Exhibit C3) denying liability of any indebtedness to the claimant. That these documents do not support the facts or claim pleaded by the claimant. That failure to give evidence in support of averments in pleadings means that the averments have been abandoned, referring to Omoboriowo & anor v. Ajasin [1984] 1 SC 206 and Balogun v. Amubikanhun [1985] 3 NWLR (Pt. 11) 27 at 37. In any case, that pleadings are not evidence, referring to Ojo v. Gbaroro [2006] 10 NWLR (Pt. 987) 123, Okeke v. AG, Anambra State [1992] 2 NWLR (Pt. 215) 60 at 65, Ajikawo v. Ansaldo [1992] 2 NWLR (Pt. 173) 359 at 363 and Agbi v. Ogbeh [2006] 11 NWLR (Pt. 990) 655 at 697. The defendants continued that during cross-examination, the claimant confirmed that he was not issued with an employment letter stating the terms of the contract of employment which the claimant is claiming under the said terms. That the claimant also confirmed that there was no written agreement or document where the said terms were expressly stated. But that what was not in dispute under the said terms are the issue of payment to the claimant his feeding allowance in the sum of N200 daily, transport fare in the sum of N1,000 daily and 5% commission on any amount worth of goods sold by the claimant. That DW testified that the claimant’s feeding allowance was paid in the sum of N29,400.00 (Twenty-Nine Thousand, Four Hundred Naira) only till his disengagement in November 2013. That the burden of proof lies with the claimant, citing sections 131(1), 132 and 133(1) of the Evidence Act. Accordingly, that the claimant has failed to prove that there is any agreement or that he is entitled to be paid N40,000 monthly or that he is entitled to 5% commission on goods sold, the amount the goods were sold for as to make entitled to N900,000 as commission. The defendant went on that the claimant acknowledged criminal conversion in paragraph 16 of his statement of facts by admitting that he seized and took away the sum of N421,000 without the consent of the defendants. The defendants agreed that a contract may be made by word of mouth or partly by word ot mouth and partly in writing, citing Adesoye Olanleye v. Afro Continental Nig Ltd [1996] 7 NWLR (Pt. 458) 29 at 39. Howsoever the contract is entered, that parties must reach consensus ad idem in respect of the terms otherwise the contract cannot be legally binding and enforceable; and the claimant has not proved such consensus ad idem. To the defendants, the claimant refused to file a reply to controvert the issues raised by the defendants in their statement of defence; in which event the evidence of DW should be deemed unchallenged and not controverted, referring to Dodo v. Salanke [2006] 9 NWLR (Pt. 986) 447 at 451. On issue 2 i.e. whether this Court has jurisdiction to entertain the claim for racial abuse and slander (defamation) under relief 2, the defendants contended that by section 254C of the 1999 Constitution, as amended, this Court has no jurisdiction over the claim as it falls squarely within the jurisdictional purview of the State High Courts. The defendants accordingly urged the Court to hold that it does not have jurisdiction over relief 2. In conclusion, the defendants urged the Court to dismiss the claimant’s claims as same are frivolous, baseless and untenable in law. The claimant in reaction started by first adding a relief to his claims in the following words – 1.1 The Claimant by this final written address hereby modifies his claim by including relief (iv) as follows: The sum of ₦40,000.00 (Forty Thousand Naira) only being one month salary in lieu of notice pursuant to Order 3 Rule 3 of the National Industrial Court Rules 2007 which provides as follows: “A claimant may alter, modify or extend the claim without any amendment of the endorsement on the Complaint: provided that the claimant may not completely change the cause of action endorsed on the Complaint without amending it”. 1.2 By this modification, the Claimant did not change the cause of action endorsed on the complaint. The claimant then framed one issue for the determination of the Court, to wit: whether in the circumstances of this case, the claimant is entitled as claimed. To the claimant, in considering the issue for determination, this Court will firstly ascertain the relationship between the 1st and 2nd defendants to establish whether they are jointly liable to him as claimed. That he claimed that the 2nd defendant is the alter ego of the 1st defendant, while the defendants claimed that the 2nd defendant is the agent of the 1st defendant. Exhibit D3 is a document purporting to support the claim of the defendants. To the claimant, by virtue of section 102(b) of the Evidence Act 2011, Exhibit D3 is a public document, and by sections 104 and 105 of the same Act only certified true copies of public documents may be produced in proof of their contents, referring to Araka v. Egbue [2003] 9 MJSC 17 at 28 and 35 where the Supreme Court held that the only secondary evidence admissible to prove the existence, condition and contents of a public document is a certified true copy of the original and no other type of secondary evidence. That Exhibit D3 is not a certified true copy and as such has no evidential value. Furthermore, that there is no evidence before the Court on the nature of the agency relationship between the 1st and 2nd defendants. The claimant then referred the Court to paragraph 24 of the statement of defence where the 2nd defendant is referred to as a businessman, indicating that the 2nd defendant is not an employee or an agent of the 1st defendant. The claimant continued that the defendants could not explain why the claimant on the 21st of November, 2013 presented the sum of ₦421,000.00 to the 2nd defendant and what gave the 2nd defendant the power to summarily terminate his employment. The claimant accordingly urged the Court in line with section 167 of the Evidence Act to presume that the claimant in the ordinary course of his employment relationship with the defendants knows the Chairman, Chief Executive Officer and the alter ego of the 1st defendant and to believe his evidence in that regard. Secondly and very importantly, the claimant urged the Court to also determine whether the claimant was an employee of the defendants. To the claimant, the parties are in agreement that the relationship that existed between them was verbal and oral. That the Court should consider the totality of the evidence of the parties and to determine which has weight by putting the evidence on an imaginary scale to reach a conclusion as to whether the claimant was employed as a staff or not, citing Egbunike v. ACB Ltd [1995] 2 NWLR (Pt. 375) 34 at 55. The claimant then urged the Court to hold that he was employed as a staff for the following reasons: a) The defendants issued Exhibit C1 to the claimant. Exhibit C1 is a staff identify card which ipso facto indicates that the claimant was an employee of the defendants. b) In Exhibit D1 at page 1 paragraph 3 the defendants wrote: “Our client recruited the said Mayor Jezreel Elo sometimes in January, 2013, as a Marketing Executive for the sole purpose of discovering and working with existing clients of the company, which role included amongst other things to market the company’s products and create/develop new relationship for the company, a role the said Mayor Jezreel Elo had been doing since January 2013”. The word “recruit” in Chambers 21st Century Dictionary (revised edition) at page 1165 means to enroll or obtain new members, employees, etc. If the word “recruit” as used is read in conjunction with “working with existing clients of the company”, the Court will see that the claimant was employed by the defendants and was actually working for them. c) Similarly, in paragraph 4 of Exhibit D1, the defendants wrote: “Our client informed us that sometimes around the 20th of November, 2013, a customer came to the office to purchase some of the products of the company, and upon paying a percentage of the product requested that someone follow them to their business location at Oshodi Market for the balance, the company mandated the said Mayor Jezreel Elo to accompany and collect the balance sum of N421,000.00 (Four Hundred and Twenty One Thousand Naira) a role that was always carried out by the said Mayor Jezreel Elo”. This also shows the claimant as an employee who was under the control of the defendants, referring to Union Bank (Nig) Ltd v. Ajagu [1990] 1 NWLR 328 at 343 where the Court of Appeal held that a servant may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer. d) In Exhibit C3/D2 at page 2 paragraph 8 line 12, the defendants wrote: “You should be informed that a total audit is been carried out by the company on all accounts handled by your client…” To the claimant, he could only handle accounts for the defendants as an employee and not as a sales representative who markets company products only on commission as claimed by the defendants. In any case, the defendants never gave evidence on the amount of the commission. e) By virtue of section 7(1)(a) – (h) of the Labour Act, it is the duty of the defendants to give to the claimant a letter of employment. To the claimant, having failed to issue an employment letter to the claimant, the defendants cannot rely on its non-existence to deny the claimant his entitlement as a person cannot benefit from his own wrong, referring to the Supreme Court decision in Teriba v. Adejumo [2010]13 NWLR (Pt. 1211) 242 at 263 – 264. That this point ought to be resolved in favour of the claimant. Thirdly, that the Court has to ascertain whether it has jurisdiction over relief 2 in the circumstances of this case, as each case has to be considered based on its facts. That section 254C(1)(a) of the 1999 Constitution, as amended, provides as follows: “…the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith”. The claimant referred to Buhari v. Obasanjo [2005] 8 MJSC 1 at page 200 paras B – C, where the Supreme Court held that “in construing the provisions of a section of a statute, the whole of the statute must be read in order to determine the meaning and effect of the words being interpreted”; and at page 283 A – D, the Court held that “it is the duty of a Court in interpreting a statute to attempt to give a meaning that will resonate with sense, order and systems as to make it workable and real. The Court should interpret a statute in order to mete out justice and not render the provision barren”. Following from the above, the claimant urged that, in construing the said section 254C(1)(a) in the circumstances of this case, the Court should consider the purport of the whole Third Alteration Act and to give it a meaning that will resonate with sense and not to render same barren. That the purpose of the Third Alteration Act is to provide for the effective and effectual adjudication of all civil matters connected to labour, employment, etc arising from workplace. These civil matters also include tort arising from workplace and related to employment, because tortious acts are civil in nature. That the interpretation impliedly suggested by the defendants in paragraph 7.7 of their final written address will not resonate with sense and will lead to multiplicity of suits. Furthermore, that the tort complained of in this case cannot stand on its own. It is incidental and connected to the employment of the claimant by the defendants and arose from the workplace. It must, therefore, be adjudicated upon together with the main suit by this Court. Thus, in the circumstances of this case, that the Court has jurisdiction to entertain relief 2. Lastly, the claimant asked whether he discharged his burden of proof. He then urged the Court to answer the question in the affirmative for the following reasons: (a) The claimant gave direct evidence in line with section 126 of the Evidence Act. 2011 and established all the averments in his statement of facts. The defendants did not materially contradict the evidence of the claimant. (b) The claimant in Exhibit C2 page 1 paragraph 6 and page 2 paragraph 1 testified that he introduced several customers inclusive of one Blessed Ugo International Ltd to the defendants and has also sold the defendants’ products worth N18 Million Naira. This evidence is not contradicted nor controverted by the defendants. That the Court ought to act on it. (c) It is trite law that the claimant is entitled to rely on the defendants’ evidence which supports his case, citing Iyere v. Bendel Feed & Flour Mill Ltd [2008] 12 MJSC 102 at 136. In Exhibit D2 page 2 at paragraph 3 lines 11 – 13, the defendants wrote” “You should be informed that a total audit is been carried out by the company on all accounts handled by your client and…” This evidence shows that the claimant was maintaining accounts and keeping records of his transactions thus, he was able to assert in Exhibit C2 page 2 line 1 that “by his calculation” the defendants were owing him as claimed. (d) The claimant gave unchallenged documentary evidence (Exhibit C1) that he was a staff of the defendants, citing Ezemba v. Ibeneme & anor [2004] 10 MJSC 54 at 72 where the Supreme Court held that documentary evidence is more reliable than oral evidence. He submitted that the oral denial of the defendants cannot stand. (e) The claimant gave direct oral evidence of the terms and nature of his employment relationship with the defendants and the amount he is owed. (f) The defendants could not controvert the evidence of the claimant that the 1st defendant called him a black monkey and a local cheat. We submit that this evidence which is not challenged by the defendants ought to be believed by the Court and accorded credibility, citing NEKA v. ACB [2004] 3 MJSC 118 at 140. (g) The defendants’ witness during cross-examination testified that he would not have employed the claimant if he knew he was a thief. This is a confirmation of the claimant’s evidence contained in paragraphs 24, 25 and 26 of his statement on oath that he was slandered in his professions and private standing to an aggravated extent in as much as no one will be willing to employ him. (h) In the circumstances of this case, the claimant having testified orally that the 2nd defendant is the alter ego of the 1st defendant, the evidential burden of proof shifted to the defendants to rebut that evidence. The defendants having failed to rebut that evidence, the evidence of the claimant ought to be accepted. The claimant accordingly submitted that he has discharged his burden of proof. In conclusion, the claimant submitted that paragraph 1 of the defendants’ statement of defence is not a denial in law. Thus, paragraphs 1, 2 and 3 of the claimant’s statement of facts are not in issue as same were admitted by the defendants, referring to the Supreme Court decision in Egbunike v. ACB (supra) at 56 paras A – B, where the Court held that in order to raise an issue of fact, a defendant should properly traverse an averment in the statement of claim either expressly or by necessary implication. Therefore, if the defendant refuses to admit a particular allegation in the statement of claim he must state so specifically and not by stating that he is not in a position to admit or deny the allegation. Such a plea is not sufficient denial of the averment in the statement of claim. The claimant submitted further that he did not file a reply to the statement of defence as there was no need for it. The claimant is not under any obligation to file a reply as issues were already joined. Thus, paragraphs 1.3 and 6.12 of the defendants’ final written address are of no moment and irrelevant. To the claimant, the evidence before the Court is that he worked diligently for the defendants for 11 (eleven) months before his employment was summarily terminated by the 2nd defendant. There is no evidence of the claimant’s resignation before this Court either in the pleadings or in the witnesses’ statements on oath as insinuated by the defendants in paragraph 2.3 of their final written address. It is elementary law that parties and the Court are bound by pleadings and evidence on record. The claimant went on that the defendants’ witness under cross-examination testified that he was not in the office on 20th November 2013 when the incident occurred. That his evidence in respect of paragraphs 17, 18, 19 and 24 of the statement of defence is thus hearsay evidence and has no evidential value, citing sections 37, 38 and 126(a) and (b) of the Evidence Act 2011 and Buhari v. Obasanjo (supra) at page 238 paragraphs F – G. Therefore, paragraphs 13, 14, 15 and 19 of the defendants’ witness statement on oath ought to be discountenanced by this Court and expunged from the records. That the defendants’ witness testified further that the claimant was never queried for any wrong doing or at all. To the claimant, this shows that the claimant performed his duty up to expectations. The claimant further submitted that there is nothing before the Court to indicate that he was paid the sum of ₦29,400.00 as claimed by the defendants. To the claimant, he has satisfied the Court as follows – i) That he worked for the defendants as a staff (Marketing/Sales Representative) for 11 (eleven months); he introduced customers to the defendants and sold their products worth ₦18 Million, maintaining accounts and keeping records in the process. ii) That the defendants failed in their obligation under the law to give him a letter of employment. iii) That the terms of his employment were orally and mutually agreed upon as claimed. iv) That the defendants failed to comply with the said terms by refusing to pay him due entitlement despite his hard work and diligence. v) That the 2nd defendant is the alter ego of the 1st defendant. vi) That his Court has jurisdiction to entertain relief 2 in the circumstances of this case. In view of the forgoing, the claimant urged the Court to hold that he is entitled to his claims as modified. The defendants reacted by filing a reply on points of law. To the defendants, the claimant in paragraph 1.1 of his final written address purported to alter and /or extend his claim to wit: “The sum of ₦40,000.00 (Forty Thousand Naira) only being one month salary in lieu of notice”. The said claim is not contained under the endorsement of his general form of complaint or statement of facts. That by general practice of the Rules of all superior courts of record including this Court, the proper way of regularizing such an action or omission of the claim by extending or bringing additional claim or by way of amendment, is to file a proper application on notice seeking to extend and/or amend his claim which was not contained in the original pleading. That although the Rules of this Court do not expressly state that such alteration and/or amendment should be on notice to the other parties, at the same time the Rules of this Court do not grant an automatic amendment or alteration of claim by inserting same at the final written address stage. To the defendants, Order 15 of the Rules of this Court provides for applicable Rules to general procedural matters: Where no provision is made in these Rules as to practice and procedure or where the provisions are inadequate, the Court may adopt such procedure as will in its view do substantial justice to the parties. From the foregoing, the defendants submitted that the amendment and/or extension of the claimant’s claim to include the sum of N40,000.00 (Forty Thousand Naira) only being one month salary in “lieu of notice” is incompetent and same should be struck out as the proper procedure by way of an application on notice was not filed by the claimant before this Court. The defendants urged the Court to so hold. The defendants continued that it is trite law that a trial court is allowed to grant an amendment after evidence had been taken or even during final address of counsel in the case provided the Court is satisfied that no new issues are raised by the amendment and that such amendment would only allow the parties to make use of the evidence already given, citing Oguntimehi v. Kpete Gubere [1964] 1 All NLR 176 and NDIC v. Oranu [2001] FWLR (Pt. 82) 1974 Ratio 7. That the position of the law is also settled that a court can only act on the basis of the evidence placed before it. Therefore, counsel’s submission on a fact which was never pleaded nor adduced in evidence cannot be acted upon by the Court, referring to NBCI v. Alfijir Minning Nig. Ltd [1993] 4 NWLR (Pt. 287) 346. The defendants then submitted that the said purported additional claim to his endorsement was not pleaded neither was evidence added in support of such claim. The defendants further submitted that the claimant by so doing has raised new issue by the amendment which the defendants deny owing the claimant such an amount and would have been properly addressed at the trial stage, urging the Court so to hold. The defendants went on that section 245C(1)(a) of the 1999 Constitution, as amended, is very clear and unambiguous and does not expressly state that this Court has jurisdiction to adjudicate on an action like slander under defamation of character. That in Ikenne Local Govt v. WAPC Plc [2011] 12 NWLR (Pt. 1261) 223 the Court held that where the words of a document, legislation or the Constitution are clear, plain and unambiguous, there is no need to give them any other meaning than their ordinary, natural and grammatical construction would permit unless that word would lead to absurdity. The defendants then submitted that the above section of the Constitution does not confer jurisdiction on this Court to adjudicate over tortious actions like slander irrespective of whether it emanates during the course of employment between an employer and employee, urging the Court so to hold. In conclusion, the defendants urged the Court to dismiss the entire claim of the claimant for lacking merit. I heard learned counsel and considered all processes in the matter. In considering the merit of the case, I need to make a remark or two. The claimant in paragraph 1.1 of his written address indicated that by his final written address, he thereby modified his claim by including relief 4 as follows: “The sum of ₦40,000.00 (Forty Thousand Naira) only being one month salary in lieu of notice” pursuant to Order 3 Rule 3 of the National Industrial Court Rules 2007 which provides that “a claimant may alter, modify or extend the claim without any amendment of the endorsement on the complaint: provided that the claimant may not completely change the cause of action endorsed on the complaint without amending it”. To the claimant, by this modification, he did not change the cause of action endorsed on the complaint. The defendant quite rightly objected to this. Even if Order 3 Rule 3 permits alteration or modification or extension of claims, is this to be done at the whims and caprices of the claimant or with leave of Court? And is it to be done in a written address when the defendant would have little or no right to object? I really do not know where counsel to the claimant got his authorization that such could simply be done with his fiat (so to speak) in a written address. I agree with the defendants that there is no pleading by the claimant as to being entitled to N40,000.00 as one month’s salary in lieu of notice. How counsel to the claimant simply thinks he can wake up at the stage of written addresses and make such a claim is what the Court cannot fathom. That claim is not before the Court. The application to now include it is hereby denied; and the claim itself is accordingly dismissed. Secondly, part of the claims of the claimant is a claim for 5% commission. In paragraph 4.1(ii)(d) of his written address, the claimant had submitted that the defendants never gave evidence on the amount of the commission. To my mind, this is trying to shift the burden of proof away from the claimant who appropriately has the burden. It is the claimant who is claiming commission. It is he who must prove same, not the defendants. Thirdly, in paragraph 4.1(ii)(e) of his written address, the claimant cited section 7(1)(a) – (h) of the Labour Act to buttress the fact that it is the duty of the defendants to give him a letter of employment. The claimant asserted that he was employed as Marketing/Sales Representative by the defendants. As a Marketing/Sales Representative, the claimant did not show to this Court that he comes within the purview of the Labour Act. The Labour Act in section 91 defines a ‘contract of employment’ to mean “any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker”. The same section 91 then goes on to define ‘worker’ to mean “any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour” excluding in the process – (a) any person employed otherwise than for the purposes of the employer’s business; or (b) persons exercising administrative, executive, technical or professional functions as public officers or otherwise; or (c) members of the employer’s family; or (d) representatives, agents and commercial travellers in so far as their work is carried on outside the permanent workplace of the employer’s establishment; or (e) any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the articles or the material; or (f) any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply The claimant has not shown to this Court that he is a ‘worker’ within the contemplation of the Labour Act as to claim the benefit of that Act in the manner he argues. The key issue before the Court is whether the claimant has proved his case. In that regard, there is the issue whether the claimant can even claim relief 2 in this Court. In other words, does this Court have jurisdiction over relief 2? Relief 2 is for “the sum of ₦5 million being general damages for injuries suffered by the claimant to his reputation for racial abuse and slander”. The claimant argues that the Court has, while the defendants argue otherwise. Other than workplace injuries i.e. injuries occasioned by negligence at the workplace where employers are sought to be held liable under tortious principles of employer’s liability (and this is because section 254C(1)(b) of the 1999 Constitution, as amended, specifically confers jurisdiction on the Court over the Workmen’s Compensation Act or any other enactment replacing it and confirmed by the Court of Appeal in SCC (Nig.) Ltd & 2 ors v. Yusuf Sedi [2013] 1 NWLR 230 per the lead judgment of His Lordship Eko, JCA), the NIC has been reluctant to assume jurisdiction in other tortious actions even when the “matters incidental thereto or connected therewith” argument has been raised. In this respect, this Court had declined and still declines jurisdiction in claims for defamation even when the defamatory imputation was said to have arisen from the workplace (see See Lawrence Idemudia v. LASU unreported Suit No. NIC/LA/08/2009 the ruling of which was delivered on September 28, 2010, Dr E. G. Ayo Akinyemi v. Crawford University [2011] 22 NLLR (Pt. 61) 90 at 110 and Mr. C. E. Okeke & 2 ors v. Union Bank of Nigeria Plc [2011] 22 NLLR (Pt. 61) 161 at 183) given that Agbo v. CBN [1996] 10 NWLR (Pt. 478) 370 CA held that where a master accuses a servant of misconduct, whether proved or not, but decides merely to terminate his appointment in accordance with the service agreement without reference to the fact of misconduct in the latter of termination, the servant cannot rely on wrongful termination of appointment as cause of action to clear his name for his future, among other purposes. His recourse in an appropriate case may be in an action for defamation. Additionally, Geoffery v. Setraco Nigeria Ltd & ors unreported Suit No. NIC/ABJ/296/2012 the ruling of which was delivered on 4th March 2013 is a case where an applicant was assaulted by fellow workers or superior officers and verbally abused. This Court declined jurisdiction to entertain the matter under section 254C(1)(d) of the 1999 Constitution, as amended. See also Francis v. Bedebede & ors [2012] 26 NLLR 38. Quite rightly then, Bamidele Aturu (of blessed memory) in his book, Law and Practice of the National Industrial Court (Hebron Publishing Co. Ltd: Lagos), 2013 at page 25, remarked thus – The fact that the right of a person is infringed in the workplace is not sufficient to confer jurisdiction on the court except an employment issue is involved. I note here that not all commentators are happy with the restrictive stance that the Court has taken regarding the ambit of its jurisdiction. Prof. Offornze D. Amucheazi and Paul Ugwu Abba in their book, The National Industrial Court of Nigeria: Law, Practice and Procedure (Wildfire Publishing House), 2013 at pages 71 – 81, have expressed reservations in this regard. To the learned authors, the restrictive stance of the Court especially in terms of its refusal to hear cases of defamation arising from the workplace appears to run contrary to the clear provisions of section 254C(1)(a) of the 1999 Constitution, as amended, which empowers the Court to hear all matters related to employment and labour disputes. Secondly, that those decisions overlook the principle of ‘principal’ and ‘ancillary’ reliefs enunciated in Tukur v. Government of Gongola State [1989] 4 NWLR (Pt. 117) 517 and affirmed in Gafar v. Government of Kwara State [2007] 4 NWLR (Pt.1024) 375. The argument of the learned authors is that the extension of the jurisdiction of the Court to “all matters relating to or connected with any labour, employment…”, “matters arising from workplace…” and “matters incidental thereto or connected therewith” is to remove any limitation on the categories of claims/reliefs the Court can entertain arising from workplace or employment issues. In answer, this Court had often asked a simply question: would a dispute over a simple contract to buy a car come to this Court simply because it was executed in the workplace, even if the purchase contract involves workers? Or would the dispute over the purchase of cars by a trade union for its use or use of its members from a dealer or car manufacturer come to this Court simply because a trade union is involved? Or would the murder of a worker by another worker be tried in this Court simply because it took place at the workplace and involves workers? Even on the principle of ‘principal’ and ‘ancillary’ claims/reliefs, this Court had also asked: what is the yardstick for determining ‘principal’ and ‘ancillary’? In the cases cited above wherein this Court declined jurisdiction over defamation, under what principle is defamation ‘ancillary’ so as to make the other employment claims ‘principal’? A principal/ancillary distinction suggests some kind of gradation. Within the grades 1% to 100%, what percentage would the defamation be in order to be ancillary – 49% and below? This Court has had cause previously to hold that between the claim in defamation and the other employment claim, the percentage was 50/50. Here, which of the two claims (defamation or employment) is principal and the other ancillary? Defamation is sui generis meaning it can found an action in its own right. So what principle makes a claim over it ‘ancillary’ especially if we are to note that the Court of Appeal held in Agbo v. CBN that you cannot use a termination of employment case to ventilate a traduced reputation – the best course being to sue separately for defamation? In any event, one of the principal requirements for a successful claim in defamation is that the defamatory imputation must be published; and publication means bringing the defamatory matter to the notice of some person other than the person defamed. See NEPA v. Inameti [2002] FWLR Pt. 130 1695 and Pullman v. Hill [1981] 1 QB 524. In paragraph 15 of the statement of facts, the claimant pleaded that the defendants referred to him as a “Black Monkey” and a “Local Cheat” in the presence of other members of staff’ and in paragraph 20 of the sworn deposition of CW, the claimant merely averred in like words. There is nothing before the Court to indicate who these members of staff are. None was called in evidence to testify. How is counsel to the claimant hoping to succeed in relief 2 without pleading and proving publication? Or is counsel simply looking for a convenient short-cut to a verdict by coming to this Court hoping that the Court will not be sharp enough to insist on what is right in terms of the justice of the case? For all the reasons given, I am still of the view that this Court does not have jurisdiction over relief 2 as claimed by the claimant. The claim for relief 2 is accordingly dismissed for want of jurisdiction. Even if the Court has jurisdiction, there is no evidence of publication before the Court to warrant the granting of the said relief 2. This leaves out reliefs 1 and 3. Relief 1 is for “the sum of ₦1,243,100.00 (One Million, Two Hundred and Forty-Three Thousand, One Hundred Naira) only being the outstanding indebtedness of the defendants to the claimant arising from unpaid salaries, commission on goods sold, transport to and from work, feeding allowance and unremitted sums due to claimant”; while relief 3 is for “cost of this action”. Taking relief 3, in paragraph 13 of the statement of facts, the claimant pleaded that what the defendants are owing him is the total sum of One million, Six Hundred and Sixty-Four Thousand, One hundred Naira (N1,664,100.00) only broken down into – a) N440,000.00 being salary from the month of January 2013 to November 2013 i.e. N40,000.00 per month. b) N900,000.00 being 5% commission on goods worth N18 Million sold by the claimant or to customers introduced by the claimant. c) N242,000.00 being transport to and from work from 2nd January 2013 to 20th November 2013 at the rate of N1,000 per day. d) N48,000.00 being feeding allowance from 2nd January 2013 to 20th November 2013 at the rate of N200.00 per day. e) N33,700.00 being the difference in the price of goods the claimant sold which the defendants failed to remit to him. In paragraph 17 of the sworn deposition of CW, the claimant deposed to this same statement of facts. The defendants in paragraph 14 of their statement of defence merely stated that the claimant did not introduce any customer for the sales of the 1st defendant’s products which was the basis for the payment to the claimant of commission; and in paragraph 15, the defendants denied “paragraphs 13, 14 and 16 of the statement of facts and hereby put the claimant to the strictest proof of the averments therein”. In paragraph 16, the defendants denied the existence of any oral or written agreement between them and the claimant as to the total sum of N1,664,100.00 or any amount as stated in paragraph 13 of the claimant’s statement of facts. However, the defendants admitted in paragraph 20 of their statement of defence that the oral agreement reached between the claimant and the 1st defendant relates to the issue of his feeding allowance, transport allowance and the commission based on any customer the claimant introduces and buys the 1st defendant’s product. Also by paragraph 21 of the statement of defence, that the defendants paid N29,400.00 to the claimant representing his transport and feeding allowances as orally agreed which sum was paid since January 2013 to 20th November 2014 before his disengagement. In ascertaining whether the clamant has proved his case for relief 1, it needs to be resolved the status of the claimant i.e. whether he is an employee of the defendants in the sense of the existence of a contract of employment between them. The claimant’s case is that he was orally employed as an employee of the defendants and even given an identity card (Exhibit C1). On the other hand, the case of the defendants is that the claimant was not employed as a staff but as a salesman who sells on commission. The defendant, however, affirmed that this engagement of the claimant was oral on the following terms – (a) N1,000.00 transport fare daily. (b) N200.00 feeding allowance daily. (c) 5% commission on any amount worth of goods sold by the claimant and/or to any customer the claimant introduced to the 1st defendant. DW under cross-examination acknowledged issuing the claimant an identity card (Exhibit C1) of the 1st defendant; but that the identity card was issued to enable the claimant effectively market the goods and to show evidence that he has the authority of the 1st defendant to market and/or introduce its goods to customers willing to buy the goods. A number of questions arise here. Why would the defendants give a daily allowance in terms of feeding and transport? Why an identity card when a covering letter “to whom it may concern” would simply do the job if really the defendants meant that all the claimant needed was mere authorization to market their products? Shena Security Co. Ltd v. Afropak (Nig.) Ltd & ors [2008] 4 – 5 SC (Pt. II) 117 at 128 – 130 laid down the factors that should guide Courts in determining which kind of contract the parties entered into. The factors are – 1. If payments are made by way of “wages” or “salaries” this is indicative that the contract is one of service. If it is a contract for service, the independent contractor gets his payment by way of “fees”. In like manner, where payment is by way of commission only or on the completion of the job, that indicates that the contract is for service. 2. Where the employer supplies the tools and other capital equipment there is a strong likelihood that the contract is that of employment or of service. But where the person engaged has to invest and provide capital for the work to progress, that indicates that it is a contract for service. 3. In a contract of service/employment, it is inconsistent for an employer to delegate his duties under the contract. Thus, where a contract allows a person to delegate his duties there under, it becomes a contract for services. 4. Where the hours of work are not fixed it is not a contract of employment/of service. See Milway (Southern) Ltd v. Willshire [1978] 1 RLR 322. 5. It is not fatal to the existence of a contract of employment/of service that the work is not carried out on the employer’s premises. However, a contract which allows the work to be carried on outside the employer’s premises is more likely to be a contract for service. 6. Where an office accommodation and a secretary are provided by the employer, it is a contract of service/of employment. The oral agreement between the parties makes provision for 5% commission, but factor 1 above talks of payment being by way of commission only. This is not the case in the instant case where in addition, the claimant is entitled to daily feeding and transport allowances. Secondly, factor 5 stipulates that it is not fatal to the existence of a contract of employment that the work is not carried out on the employer’s premises. As Marketing/Sales Representative, it is not fatal that the claimant would have to work outside of the defendants’ premises. Thirdly, and quite importantly, Exhibit C1 has the following statement: “This is to certify that the person whose name, signature and photograph appear on this I.D CARD is a staff of ECO EXIM ALLIED LTD. If found, please return to the address below or the nearest police station”. Exhibit C1 was freely given to the claimant by the defendants and it describes the claimant as a staff of the 1st defendant. Lastly, under cross-examination, DW affirmed that the claimant in the course of his duties collected payments on behalf of the company and paid same into the company’s account; but that he did not allow him to collect cash, instead he could collect cheques. All of these facts are pointers that the relationship between the claimant and the 1st defendant was one of an employment relationship. Given all these facts, therefore, I have no hesitation in holding that the claimant was a staff of the 1st defendant; and I so find and hold. Next is the issue whether the 2nd defendant is the alter ego of the 1st defendant as to make him liable for the claims of the claimant in this suit. Paragraph 7 of the statement of facts describes the 2nd defendant as the Chairman/Chief Executive Officer and alter ego of the 1st defendant; but on the originating processes (the complaint, etc), the 2nd defendant is not sued as such – he is sued in his personal capacity. The 1st defendant is a corporate entity capable of suing and being sued independent of the 2nd defendant. There is, therefore, no reason, and the Court has not been shown any, why the 2nd defendant should be proceeded against by the claimant in this suit. Whatever action the 2nd defendant took in this matter, it did it for and on behalf of the 1st defendant. The claims against the 2nd defendant in this suit are, therefore, wrong and so are dismissed. This leaves out the question whether the claim against the 1st defendant has been proved. The 1st defendant acknowledged responsibility for N1,000.00 transport fare daily, for N200.00 feeding allowance daily and 5% commission on any amount worth of goods sold by the claimant and/or to any customer the claimant introduced to the 1st defendant. The 1st defendant also acknowledged that it paid N29,400.00 to the claimant representing his transport and feeding allowances as orally agreed which sum was paid since January 2013 to 20th November 2014 before his disengagement. The 1st defendant did not, however, show to this Court evidence of paying the claimant any amount of money, not even the N29,400.00 it claimed to have paid. I take it, therefore, that no amount of money was paid as such to the claimant; and I so find and hold. This being the case, the 1st defendant is responsible for the payment to the claimant of N1,000 daily and N200 daily both from 2nd January 2013 to 20th November 2013, which the claimant respectively put at N242,000 and N48,000; and I so hold. As for the claim for 5% commission, the 1st defendant in paragraph 14 of the defendants’ statement of defence pleaded that the claimant did not introduce any customer or sell to any customer to warrant the payment of the 5% commission as agreed. It is, therefore, for the claimant to prove that he is entitled to the 5% commission in terms of details as to the sales he made and to whom. Under cross-examination, the claimant testified that as per the claim for 5% commission, there is name enclosed as to the customers referred to therein. No evidence was adduced to the Court as to the existence of such a name. I accordingly hold that the claimant has not proved the claim for N900,000 as 5% commission. The claim accordingly fails and so is dismissed. A related claim is for N33,700 being the difference in the price of goods the claimant sold which the defendants failed to remit to him. Under cross-examination, the claimant acknowledged that in relation to this claim the principal sum is not disclosed. Once the principal sum is not disclosed there can be no talk of the payment of a difference. How is the Court to ascertain this difference claimed? The claim for N33,700 accordingly fails and is hereby dismissed. This leaves out the claim for salary at N40,000 per month for the period 2nd January 2013 to 20th November 2013. I already held that the relationship between the claimant and the 1st defendant is one of a contract of employment. This means that the claimant is thereby entitled to a salary. In paragraphs 9 and 13 of the statement of facts, and 12 and 17 of the sworn deposition of CW, the claimant pleaded and averred that his salary is N40,000 per month. In paragraph 15 of the statement of defence, the 1st defendant merely pleaded that it denies paragraph 13 of the statement of facts and puts the claimant to the strictest proof. And in paragraph 16 of the statement of facts merely said that there was never any oral or written agreement as to payment by it of the sum of N1,664,100 or any other sum for that matter. Are all of these effective denials by the 1st defendant? This remains the question. The law of pleadings is that a defendant who does not admit any fact in the plaintiff’s pleadings must specifically deny same. General or evasive denial does not amount to a denial. To constitute an effective and sufficient denial of an averment in the statement of claim or petition, the denial must be apt, precise, succinct, full and complete and not evasive, rigmarole, vague and bogus. See El-Tijani v. Saidu [1993] 1 NWLR (Pt. 268) 246. Also, a mere denial of a detailed, factual situation without attacking the veracity or authenticity of details contained therein is in law not a denial. See Jacobson Engineering Ltd v. UBA Ltd [1993] 3 NWLR (Pt. 283) 586. A traverse that the “1st defendant denies paragraph 22 of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein” does not amount to a denial for the purpose of raising an issue for trial. See Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 All NLR (Pt. 1) 460, UBA Ltd v. Edet [1993] 4 NWLR (Pt. 287) 188, Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1 and LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620. Furthermore, a general traverse to the effect that the defendant denies certain paragraphs of the statement of claim without making specific response to those paragraphs does not constitute sufficient decial and have been held to amount to admission. See Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170 and Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214. Further still, an averment in a statement of defence that the defendant puts the plaintiff to proof or does not admit the correctness of a particular allegation in the statement of claim without more has been held to be insufficient denial. See Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Idaayor v Tigidam [1995] 7 NWLR (Pt. 377) 359. Given these authorities, I find and hold that there is no specific denial on the part of the 1st defendant that the claimant’s monthly salary is not N40,000. This being the case, I also find and hold that the claimant has proved his claim for monthly salary at the rate of N40,000 for the period 2nd January 2013 – 20th November 2013. The claimant is accordingly entitled to the N440,000 claimed as salary for the said period. Lastly, the claimant claimed for cost but did not state the amount claimed. Cost is at the discretion of the Court and so will be treated as such. For the avoidance of doubt, the claimant’s claims succeed in part and only in terms of the following – 1. The sum of N242,000 being transport allowance at the rate of N1,000 daily for the period 2nd January 2013 – 20th November 2013. 2. The sum of N48,000 being feeding allowance at the rate N200 daily for the period 2nd January 2013 – 20th November 2013. 3. The sum of N440,000 as salary for the period 2nd January 2013 – 20th November 2013. 4. All of these sums are to be paid by the 1st defendant to the claimant within 30 days of this judgment failing which the said sums shall attract interest at the rate of 10% per annum. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip