Download PDF
IN THE NATIONA L INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE OYEWUMI. O.O DATED 27th OF JANUARY, 2015 SUIT NO: NICN/LA/381/2013 BETWEEN: MR PATRICK ONAH UNATA - CLAIMANT AND PORTS AND TERMINAL MULTI SERVICES - DEFENDANT LTD (PTML) REPRESENTION- Alli Adah for the claimant Opeyemi Bello with him are F. Abiodun and Mr Nwoji Emeka for the defendant JUDGMENT The claimant on the 19th of July, 2013 filed a complaint against the defendant praying the following reliefs: a. A DECLARATION that the claimant’s employment with the Defendant is subsisting until same properly determined. b. A DECLARATION that SOVEREIGN GUARDS LTD is not a subsidiary of the defendant company. c. A DECLARATION that the claimants’ appointment with SOVEREIGN GUARDS LTD is not a continuation of his earlier appointment with the defendant. d. A DECLARATION that the conversion/transfer of the claimant from being staff of the defendant as a security guard to staff of SOVEREIGN GUARDS LTD clearly amounts to casualization of the claimant and others in his category and there by illegal, unconstitutional null and void. e. A DECLARATION that the conversion/transfer of the claimant from being staff of the defendant to staff of SOVEREIGN GUARDS LTD amounts to summary dismissal of the claimant by the defendant. f. A DECLARATION that the defendant is under obligation to give the claimant one month notice or pay him one month salary in lieu of notice. g. A DECLARATION that the defendant is under obligation to issue to the claimant a letter of termination of appointment in consequence of the unilateral and malicious casualization of the claimant in the lame pretext of conversion or transfer. h. A DECLARATION that the defendant is liable in damages for the breach of employment contract to the claimant and also for the inhuman and degrading treatment suffered by the claimant in consequence of the defendants inconsiderate, hasty, unfair, deliberate and wilful casualization of the claimant all in the name of conversion/transfer of the claimant to SOVEREIGN GUARDS LTD. i. A DECLARATION that the refusal by the defendant to pay the claimant his lawful pay-off/entitlement despite the intervention of NMU, is illegal and amounts to a breach of employment contract- with reckless impunity. j. AN ORDER of this Honourable court that the defendant pay the sum of N200,000.00 to the claimant being the sum the defendant undertake with NMU to pay all the staff who are affected under one year and by this illegal and malicious transformation/conversion drive of the defendant. k. AN ORDER of this Honourable court that the defendant pay the claimant ONE MONTH SALARY IN LIEU of NOTICE arising from the discreet, and malicious casualization/termination of the claimant in an unconstitutional, and by illegal means of conversion. l. AN ORDER compelling the defendant to pay to the claimant all his salaries at N250,000, per month, all allowances and entitlement etc that have accrued from August 2010 until his appointment is properly determined. m. AN ORDER that the defendant pay the sum of N10,000,000 to the claimant as EXEMPLARY GENERAL DAMAGES as a result of the reckless, dishonest and shameful manner the claimants was summarily dismissed/terminated by means of casualization through oppressive conversion/transformation mechanism and the failure to release the claimant’s letter of appointment and termination letter in order to further conceal this dastardly act of the defendant. n. The cost of this suit at N1,000,000. It is the claimant’s case that he was employed by the defendant on the 16th day of November, 2009 as a security guard with staff no C0456/10.He averred that he was wrongfully transferred to a private security company called Sovereign Guards Limited on the 31st July, 2010. Claimant averred that prior to his employment with the defendant, he went through three stages of interview with the Chief Security Officer, The Human Resources Manager and thirdly the Personnel Manager of the defendant company. During each stage of interview, the terms and conditions of employment were duly discussed and he was told by each person interviewing him to resume immediately if the terms of employment were acceptable to him. Claimant having being satisfied resume immediately. Upon resumption at his duty post, he completed his documentation and was issued a staff identity card with no C0456/10. Claimant averred that he was not given his letter of appointment and when he demanded for same, he was told to exercise patience as the Managing Director is yet to sign same. On the 31st of November, 2009 when he was paid his first salary, his suspicion grew stronger as he could not ascertain the exact amount he duly earned. He went back to the Chief Security Officer(herein referred to as CSO) and appealed to him to issue him his appointment letter, the CSO referred him to the Human Resource Manager (herein referred to as HRM) where he was told to check back next week. Upon a revisit to the HRM, the HRM frantically told him that “he should be more concerned about the regular payment of his salary and not to worry about a mere paper like letter of appointment” and promised that the letter would soon be released to him. Claimant averred that while still worried about the non issuance of his appointment letter, the defendant transferred him and 32 others to an independent private security company known as SOVEREIGN GUARDS LTD. The new company carried out a fresh documentation process and issued him a new staff identity card. Following the transfer of claimant and other staff, the National Maritime Union intervened and it was agreed that all staff affected should be paid off all their entitlements. Based on the agreement, the defendant selected some persons and excluded the claimant. The claimant averred that upon enquiry as to why he was excluded, the HRM explained to him since most of all the affected staffs still performs the same work under the new management and in the same premises, they are not regarded as being terminated or dismissed. The defendant demanded severally with threat that claimant must submit his staff identity card but he refused and insisted that he would do so unless he is paid his entitlement. Few months after, the CSO informed him that the management has directed that his services are no longer required as a result of an ‘incited which occurred recently and investigation revealed that he was involved’. Claimant stated upon termination of his employment by the defendant, he instructed his solicitor to do a formal letter of demand to the defendant on the 3rd of January, 2011, but same was ignored and his solicitors wrote a reminder on the 14th of February, 2011. He further stated that his employment with the defendant is subsisting until properly determined. The claimant at the trial of this case testified for himself and through CW2. He tendered in support of his case documents which were admitted and marked as Exhibits PO1-PO4. The defendant on the other hand averred that since its inception in 2007 its security services had always been handled by independent security services. That pursuant to an agreement with Sovereign Guards Limited, the claimant was deployed at its premises at Apapa sometime in 2010 and he stayed for six months before he was relocated to another location by sovereign guards limited. That the identity card No C0456/10 given to the claimant was for accessibility into the defendant’s premises and none of its staff interviewed the claimant for employment purposes but the CSO only acquainted the staff deployed by Sovereign guard to the working guidelines and at no time was the issue of condition of service discussed with the claimant by any of its officials. Defendant averred that the claimant’s problems started when a colleague of his one Andrew Obanta was recommended for immediate employment. Also two other colleagues of the claimant namely Eze Luke and Udenze Odion got new employments from Stallion Stevedoring Nigeria Limited. Defendant averred that the claimant was never employed nor on the pay roll of the defendant and there was no resolution entered with any agency or body in respect of any employment issue in the course of its operation in Nigeria. Defendant averred that due to the poor attitude of claimant to his work, his employers were notified to transfer him out of the terminal and requested the claimant to submit his identity card. The claimant, with the intention to extort from the defendant, informed the defendant that his official identity card was lost and all efforts to trace it proved abortive. Defendant further averred that claimant’s claims disclose no reasonable cause of action, frivolous and should be dismissed with cost. The defendant at the trial of this case testified through its Administrative Manager and through DW2, DW3, and DW4. Defendant tendered in support of his case documents which were admitted and marked as Exhibits SO1-SO2. The claimant on the 25th of November, 2013 filed a reply to the defendant’s statement of defence wherein he averred that he was employed by the defendant on 16th November, 2009 after his successful interview. That the averment contained in paragraph 5 of the Defendant’s Statement of Defence therein is half-truth as the truth of the matter in the defendant’s company as regards to security operation is that; there is Internal Security and External security guard. Claimant further averred that the internal security guards are those employed by the defendant as its employees while the External security guards are those sourced from private security companies. The External security guards providers to the defendant are; (a) Santana Security Agency, (b) Sovereign Guards Limited and (c) Pavilion Security Technologies Limited. Claimant states that the defendant maintains three terminals for its operations. Terminal 1 is within the head office premises. Terminal 2 is directly opposite the head office across the road. While Terminal 3 called Mile 2 terminal is located at Mile 2 in Lagos. In each of the terminals, both the internal and external security guards works together but there is limit to where the external guards can go. Again, the external guards are under the supervision of the internal guards. Further to the above, the claimant states that he was employed as one of the internal security guards maintained by the defendant. Claimant in specific response to paragraph 7 of the defendant’s statement of defence, avers that “staff identity card’’ all over the world is issued to a person who is a bona fide employee of the organization which issued same and relates to the bearer only. That the security guards deployed by the trio of Santana security agency limited, sovereign guards limited and pavilion security technologies limited to the defendant’s premises have a separate and distinct staff identity cards from that of the defendant’s staff which clearly identifies them as staff of their employers apart from their uniforms and in compliance with the rules of engagement, the claimant was issued a fresh staff identity card by sovereign guards limited when the defendant wrongfully transformed his employment to sovereign guards limited in disregard to extant laws and best labour practices. Claimant in response to paragraph 10 of the defendant’s statement of defence averred that Andrew Obanta was employed by the defendant and not Sovereign Guards limited and was also actively in quest for the defendant to pay them their entitlement. The defendant in other to frustrate the claimant recalled Andrew Obanta from Sovereign Guards limited and this made him to refuse to continue with the matter alongside claimant. claimant averred that he was at all material time an employee of the defendant as he was on the pay roll of the defendant from the period he was employed to the time he was wrongfully transferred to sovereign guards limited. The claimant also averred that the defendant in other to further frustrate him to surrender his identity card, instructed its Administrative Officer one Mr. Steve Oko to see to that. In carrying out the instructions of the defendant, Mr. Steve Oko scolded the claimant for not being alert at his duty post and told him that his stubbornness would end today. That he did by instructing the Coordinator of Sovereign Guards limited to send the claimant out of is premises after it has recovered all the defendant’s properties. The claimant was detained for over an hour in the security post because the defendant’s identity card was not found on him. He states that he is entitled to one month notice or salary in lieu and continues to be an employee of the defendant until his employment is properly determined. He urged the court to grant all his reliefs sought. The defence on the 11th of August, 2014 filed it written address wherein he raised two issues for the court’s determination; 1. Whether there is credible evidence before the court to establish n employer/employee relationship between the parties. 2. Whether the claimant is entitled to reliefs sought. On issue one counsel contended that a party who has pleaded a fact or facts must lead evidence there to else, it will be deemed abandoned by the court. Thus the claimant having not led evidence in support of his reply is deemed to have abandoned the averment. He cited in support the case of OCHIN V EKPECHI [200] 5 NWLR (PT. 656) PG 225 AT 240. Continuing he stated that in civil matters the legal burden is fixed on the principle of he who asserts must prove. He submitted that the onus of proving his case rest on the claimant and where he fails to prove same, the reliefs he sought must also fail. He cited Section 133(1) of the Evidence Act, 2011; HONIKA SAWMILL (NIGERIA) LTD V HOFF [1994] 2 NWLR (PT. 326) PG 252 AT 266. Counsel further submitted that the claimant failed to plead and lead evidence on the following material facts; 1. Copy of advertisement of the post 2. Application for employment 3. Acceptance memorandum 4. Letter of confirmation of employment 5. Pay slip 6. Staff hand book 7. Notice of termination/ dismissal. According to counsel, the only item claimant is relying on to prove his alleged employment relationship with the defendant is exhibit PO1 (Identity card No. CO456/10). Counsel assuming without conceding, that it issued the identity card to the claimant as an employee, is not enough to validate the claim of the claimant as the terms and conditions of employment that had been breached was not written on the exhibit or proved before the court. Counsel argued that claimant also tendered Exhibit PO4, a Statement of Account in proof of the alleged employment relationship. Counsel submitted that the documentary evidence tendered without foundation deprive the trial court the power to do independent examination and exhibit PO4 is not relevant as the claimant claimed to have worked for the defendant from 16/11/2009- 31/7/2010 but the date on the exhibit relates to the period 26/10/2010- 17/1/2014. Counsel urged the court to discountenance and expunge exhibit PO4 from the records having not been supported by pleadings. Counsel submitted that the claimant was never its employee but an employee of Sovereign Guard Limited deployed to the defendant as a security guard and at no time was the issue of condition of service or employment matter discussed with the claimant by any of the defendant’s official. The identity card No. C0456/10 was issued to the claimant strictly for accessibility into the terminal and when it became obvious that the claimant can no longer be tolerated because of his poor attitude to work, his employers were notified to transfer him out of the terminal and requested him to deliver his identity card to the Chief Security Officer. The above submission is consistent with the evidence led at trial and it is trite that where a piece of evidence remains unchallenged, supported by the pleadings and by its nature not incredible, the trial judge has no option but to accept it. He cited the case of ADELEKE V IYANDA [2001] 13 NWLR (PT. 729) PG 1 AT 23; BELLO V EWEKA [1981] 1 SC 101. Continuing, counsel stated that it is obvious that the counsel invoice was contrived and issued after the letters were written as exhibit PO3, payment invoice issued by the claimant’s counsel dated 12th July, 2012 while letters exhibits PO2 are dated 3rd January, 2011 and 14th February, 2011. He submitted that facts and evidence led by claimant are obvious inconsistencies and a ploy by the claimant to extort money from the defendant. Counsel urged the court to resolve issue one in favour of the defendant. On issue two, counsel submitted that the reliefs sought by the claimant are not supported by averments in the pleadings and evidence led at trial. It is the position of law that a relief not supported by averments in the statement of claim goes to no issue. He cited the case of MOJEKWU V MOJEKWU [1997] 7 NWLR (PT. 512) PG 283 AT 307-308. Counsel contended that claimant’s claims (a), (e) and (h) are contradictory as claimant in one breath says his employment is still subsisting and in another urged the court to hold that the termination of employment amounts to summary dismissal. Claimant’s claims (j) (k) (i) and (n) are claims for specific damages which must be specifically pleaded and strictly proved he cited the case of NWANJI V COASTAL SERVICES (NIG) LTD [2004] 11 NWLR (PT. 885) 552. Counsel argued that claimant’s reliefs (i) and (j) are not supported by pleadings and evidence. Relief (n) is improbable and exhibit PO3 is contrived. Counsel further submitted that Claimant’s relief (l) is misconceived and that assuming without conceding that the court finds that the claimant was indeed an employee of the defendant and his employment was wrongfully terminated, what the claimant is entitled to is the sum of N25,000 which was his monthly salary. It is trite that where an employment has been wrongfully terminated, the employee is entitled to salary payable during the duration of notice. he cited in support the case of EMENITE LIMITED V OLEKA [2005] 6 NWLR (PT. 921) 350; EVANS BROTHERS (NIG) PUBLISHERS LTD V A.S FALAIYE [2002] 47 WRN 74. Counsel further argued that claims (m) of the claimant relates to exemplary damages and it is settled law that in award of damages for wrongful dismissal, award of general damages are not proper and only specific damages can be claimed only to the extent that it is specifically pleaded for and all particulars and evidence in support thereto are adduced. He cited the case of CO-OPERATIVE BANK PLC V ESSIEN [2001] 4 NWLR (PT. 704) 479. Counsel further submitted that claimant has failed to prove his case hence not entitled to his claims. He urged the court to resolve issue two in favour of the defendant as claimant’s claims is lacking in merit, extortionate and discloses no reasonable cause of action against the defendant. The claimant on the 12th of September, 2014 filed its written address wherein it raised four issues for the court’s determination; 1. Whether a contract of employment is valid and enforceable only when it is evidenced in writing. 2. Whether the claimant has proved his employment relationship with the defendant. 3. Whether the defendant has led any evidence to prove its assertion that the claimant was employed by Sovereign Guards Limited. 4. If issue 2 above is rightly answered in the affirmative, and issue 1 and 3 are answered in the negative, whether the claimant is not entitled to the reliefs sought? On issue one counsel contended that the law does not require a contract of employment to be in any specific form as it could be oral, written or even by a deed and could be inferred or implied from the conduct of the parties. He cited in support SECTION 91 OF THE LABOUR ACT; SECTION 73 OF THE EMPLOYEE’S COMPENSATION ACT 2010 and the case of NIGERIA AIRWAYS LIMITED V GBAJUMO [1992] 5 NWLR (PT 244) PG 735. Counsel submitted that the defendant in breach of section 7 of the Labour Act and inspite of several promises to do so, refused to give him a written statement. Counsel urged the court to hold issue one in favour of the claimant. On issue two, counsel posited that the claimant as averred in paragraphs 1, 3, 4, 5, 6, 7, 8 and 9 of his statement of fact and evidence led before the court has sufficiently proven that there exists a contract of employment between the claimant and the defendant. That the defendant neither challenged nor led cogent evidence to debunk paragraphs especially 4 and 5. He cited in support the case of EL-TIJANI V SAIDU [1993] 1 NWLR (PT268) 246. Continuing, counsel submitted that the above listed averments were confirmed by CW2 in his evidence-in-chief and cross examination. Also the evidence of DW4 supports the evidence of the claimant. Counsel urged the court to hold that the evidence of DW4 that he and the claimant were casual staffs/employees of the defendant amounts to the truth of the claimant’s claim that he was employed by the defendant and not by Sovereign Guards Limited. Counsel further submitted that claimant has proved his employment relationship with the defendant vide Exhibit PO1 the staff identity card issued to him by the defendant and exhibit PO1 is res ipsa loquitor. He cited in support the case of N.I.D.B V OLALOMI INDUSTRIES LTD (2002) 5 NWLR (PT 761) 532 RATIO 7. Counsel contended that exhibit PO4 that is the Statement of Account tendered in proof of his employment relationship with the defendant and same not objected to during trial or cross examined by the defendant is properly admitted by this court. It is a cardinal principle that an objection to the admissibility of a document is taken when the document is offered in evidence and where same is not objected to by the opposing party, it is admitted and such party cannot afterward be heard to complain about its admission. He cited the case of VINCENT STANDARD TRADING CO V XTODEUS TRADING CO (NIG) LTD [1993] 5 NWLR (PT. 296) 75 AT 695-696. Counsel also contended that it is not the law that foundation should be laid when primary evidence is tendered and it is the law today that computer print outs are admissible under the Evidence Act, 2011. He cited in support the case of OGHOYONE V OGHOYONE [2010] 3 NWLR (PT. 1182) 564 AT 585 PARA G. Counsel submitted that address of counsel cannot be substantiated for the evidence that was not led in the case. He cited the case of ALIU&ORS V INTERCONTINENTAL BANK PLC &ORS [2013] LPELR 20716 CA. Counsel urge the court discountenance the argument of the defendant and hold in favour of the claimant. On issue three, counsel submitted that it is trite that the onus of proving the existence of any fact is on the party who asserts the fact to exist. That the defendant averred that claimant was employed by Sovereign Guards Limited and deployed or seconded to it but failed to prove this assertion by evidence. He cited SECTION 131(1) OF THE EVIDENCE ACT, 2011. Counsel stated that the defendant in 2010 transferred the employment of the claimant to Sovereign Guards Limited in breach of Section 10 of the Labour Act which provides for the modes of transfer. Counsel urged the court to hold that the defendant failed to prove its assertion that the claimant was employed by Sovereign Guards Limited and hold issue three in its favour. On issue four, counsel submitted that the claimant has proved his case against the defendant through plethora of evidence before this Honourable court. The claimant’s staff identity card exhibit PO1which was admitted and identified by the defendant as its property is incontrovertible. It is an established principle that an admitted fact needs no further proof. He cited the case of BIEZAN EXCLUSIVE GUEST HOUSE LTD V UNION HOMES SAVING &LOANS LTD [2011] 7 NWLR (PT 1246) AT 285 PARAS C-D. Continuing, he submitted that evidence of CW2, DW2 and DW4 were also in support of the claimant’s claims. He urged the court to disregard the testimony of DW3 as he was not an officer of the defendant in any capacity. Counsel further submitted that defendant is in breach of Section 7 of the Labour Act which mandates employers to give to their workers, written statement of particulars of the terms and conditions of their employment not later than three months after the beginning of their period of employment... and by Section 21 of Labour Act it is an offence for any employer like the defendant who wilfully breaches section 7 and liable on conviction to a fine not exceeding N800.00. counsel urged the court to hold in favour of the claimant. Counsel contended that the defence did not raise any objection to the admissibility of the Solicitors cash receipt issued the claimant as evidence of payment to his solicitors. That the date on the receipt only shows when it was written as evidence of payment so that the actual amount that was paid would not be in dispute. Counsel posited that on the power of this court to grant damages and declarative reliefs where the defendant is in breach of employment contract, he cited Section 19 (b) and (d) of the National Industrial Act, 2000 which provides that; “ the court may in all other cases and where necessary make any appropriate order including- (a) ..... (b) A declaration order (c) .... (d) An award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear;” He cited the case of INDUSTRIAL CARTONS LIMITED V NUPAPPW [2006] 6 NLLR (PT. 15) 28 “where the reason given for the termination of the claimant’s employment is unsatisfactory, the payment of one month’s salary in lieu of notice was considered grossly inadequate as compensation, the court awarded the payment of six month’s salary as due compensation”. Counsel urged the court to dismiss the defendant’s submission and hold in favour of the claimant granting him all his reliefs sought. The defendant on the 26th of September, 2014 filed its reply on points of law wherein it raised four issues for the courts determination. a. Whether terms of employment need not be proved in an alleged oral employment and whether the claimant has placed before the court required particulars to prove his claims of breach of contract of employment by the defendant. b. Whether exhibit PO4 can be countenanced by the Honourable Court, same being rooted in the claimant’s reply to the defendant’s statement of defence which was not accompanied by a witness statement on oath. c. Whether the provision of the Employee’e Compensation Act, 2010 applies to the cause of action in the suit herein. d. Whether the Honourable Court can grant reliefs not claimed by the parties. On issue one, defence counsel submitted that it behoves on the claimant whose employment is not in writing to specifically plead the terms of the alleged employment and prove same during trial. He cited in support the case of ADAMS VS LSDPC [2000] 5 NWLR (PT. 656) PG. 291 AT 316. Continuing, counsel stated that the case of NIGERIA AIRWAYS LTD V GBAJUMO supra cited by the claimant best supports the defendant’s argument that specific terms of the contract must be pleaded in the pleadings. On issue two, counsel posited that exhibit PO4 tendered by the claimant referred to a period after which the claimant had left the purported employment of the defendant. That the claimant claimed to have worked for the period from 16/11/2009- 31/7/2010 while the exhibit relates to the period of 26/10/2007- 17/1/2014. Also the pleading was not accompanied by any witness statement on oath or evidence thus it is deemed abandoned. Counsel urge the court to so hold On issue three, counsel submitted that the Employees Compensation Act has no bearing on the subject matter before the Honourable Court and thus inapplicable. On issue four, counsel contended that the court can only act within the confines of the law establishing it, the pleadings of the parties and the binding decision of superior courts. That parties are bound by their pleadings and the court grant reliefs at large. He cited the case of ARHURHU V DELTA STEEL CO [1997] 3 NWLR (PT. 491) 82 AT 93. Counsel finally submitted that the reliefs sought by the claimant are not justified by pleadings and evidence led and hence fatal to his case. I have given a careful consideration of the processes filed by the parties, the sworn deposition of the witnesses, the argument of counsel of the claimant and defendant and the authorities relied upon. It is the calm view of the court that the main issue for determination in this case is whether the claimant was a staff of the defendant as to entitle him to the reliefs sought therefrom. It is the contention of the defendant that the claimant was deployed by his employer, Sovereign Guards limited, to the defendant’s business premises sometime in 2010 and he was there for about 6 months before he was redeployed to another location by his employer. The claimant was never its employee but that of Sovereign Guards Limited and at no time was the issue of condition of service or employment matter discussed with claimant by any of its officials. That the identity card No. C0456/10 issued to the claimant was strictly for accessibility purpose into the defendant’s Customs Bonded Terminal. The claimant in reaction to the assertion of the defendant submitted that he had a contract of employment relationship with the defendant and not with Sovereign guard limited that he was wrongfully transferred to the later company by the defendant. To prove the employment relationship between him and the defendant, he tendered exhibit PO1 (Staff Identity Card No. C0456/10) and exhibit PO4 (statement of account) and urged the court to consider his employment relationship based on exhibits PO1 and PO4. From the fact and evidence adduced, the pertinent question here is would it be safe for the court to find that the claimant is an employee of the defendant and not that of Sovereign Guard Limited with whom defendant alleged that it deployed the claimant there from to its company. Employer employee relationship is usually regulated by contract or terms of service; that is the pivot upon which the relationship hinges. It is the law that a contract of employment may be oral written or by conduct. It is also the law of common place that a claimant who approaches the Court for a claim under the contract of employment must prove his relationship with the employer. In other words the onus of proving that he has an employment relationship with the defendant rests on him. See EMOKPAE V UUNIVERSITY OF BENIN [2002] 17 NWLR (PT. 795) 139. It is the case of the claimant that he was employed by the defendant, but failed to tender any employment letter. It is his argument that he severally demanded for his employment letter but the defendant failed to issue him the letter. He continued in his case that he worked with the defendant from 16th November, 2009 and was transferred to Sovereign Guards Ltd on 31st July, 2010. One of the factors to determine whether or not there is a relationship between an employer and employee is the control test which includes the payment of salaries/wages. SEE. SHENA SECURITY CO LTD V AFROPAK (NIG) LTD [2008] 18 NWLR (PT. 1118) 77. This could be deduced from the claimant's payslip, but the claimant did not produce one, He however, in prove of this assertion tendered exhibits PO1 and PO4 which are his ID cards at both the defendant company, that of Sovereign guards Ltd and his bank statement. I have gone through the two ID cards and the statement of account. It is of note that there is no date on the ID card issued to the claimant by the defendant, but Sovereign guards Ltd ID card is dated 10th August 2010. At a close perusal of exhibit PO4, i..e. the bank statement of the claimant, it shows that PTML paid his salary from 29th October, 2010 up till June 2011, the implication of this is that the claimant was with the defendant in September 2010 till the end of June 2011. Comparing this dates with the date on Sovereign guard ID card which is August 2010. This Court is compelled to find coupled with the evidence of defence witnesses that the claimant was an employee of sovereign guard Ltd and was assigned to the defendant as a security guard. Differently put, there is nothing on record in prove of the fact alleged by the claimant that he was an employee of the defendant. He has thus failed to establish his claim. It is also of note that on the ID card of DW1 and DW2 is the letter 'P' before their staff number, whilst on the claimant ID card is the letter 'C' which according to DW2 is just like a gate pass issued to casual workers to grant them access to the premises of the company. On the preponderance of evidence, I believe the evidence of DW2 on this issue, that the ID card issued to the claimant is liken to the one given to casual or temporary persons on the defendant premises and the purpose is to enable them gain access to the premises. The claimant averred that the defendant failed to abide by the agreement it reached with NMU, it is interesting to note that the claimant failed or refused to present any of such agreement before the Court. It is based on the community of all that have been expressed above that I find and hold that the claimant is not a staff of the defendant, but rather he was a staff of Sovereign guard Ltd and was transferred to the defendant to work. Differently put he was outsourced by Sovereign guard to the defendant. It then means that his employment relationship is with sovereign guard and not with the defendant. Consequently all the claimant's claims against the defendant fail. Judgment is accordingly entered HON.JUSTICE OYEWUMI O.O JUDGE