IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HPNOURABLE MR. JUSTICE SANUSI KADO
21ST DAY OF JUNE 2019 SUIT NO. NICN/ABJ/43/2018
ADEYEMI MUSTAPHA YUSUF CLAIMANT
STRATEGIC OUTSOURCING LIMITED DEFENDANT
M. Zaro, Esq; For the claimant
AyodeleAkinsanya, Esq; For the defendant
Abbas Sani, Esq; For the part sought to be joined.
Vide a general form of complaint dated 14th February 2018 and filed on the same day, the Claimant is praying for the following reliefs. They are:-
1. A DECLARATION that the indefinite suspension of the claimant from duty since 12th day of August, 2013 till date by the Defendant, without pay and without being formally disengaged or his appointment officially terminated, is illegal, unconstitutional, ultra vires the powers of the Defendant and therefore null and void.
2. AN ORDER of this Honourable court directing that the Claimant be reinstated back to his employment unconditionally or IN THE ALTERNATIVE his employment be officially terminated and all his entitlements paid to him in full.
3. AN ORDER of this Honourable court granting the sum of N3,300,000.00 (Three million, three hundred thousand naira) Only, as Special Damages in favour of the Claimant against the Defendant, being the aggregate of his salary arrears from the month of July 31st, 2013 to January 31st, 2018, which is the time of filing this action, at the rate of N60,000.00 (Sixty Thousand Naira) Only per month, and thereafter at the rate of N60,000.00 (Sixty thousand Naira) Only per month, from the month of February, 2018 till judgement is delivered in this case and till the date the Judgement sum is paid.
4. An ORDER of this Honourable court directing the Defendants jointly and severally to pay to the Claimant 20% of N3,300,000.00 (Three Million, Three Hundred Thousand Naira) Only as interest on the said sum beginning 31st July 2013 till the date judgement is delivered and 20% of the judgement debt till the date the judgement sum is paid.
5. AN ORDER of this honourable court directing the Defendant to render accounts before this honourable court, of all the sums due to the Claimant as allowances and bonuses or by whatever nomenclature it is known from 1st July 2013 to February 2018, when this case was filed and thereafter from the month of February, 2018 till judgement is delivered in this case.
6. AN ORDER of this honourable court directing the Defendant to render accounts before this honourable court, of all the sums due to the Claimant as pension under the contributory pension scheme from 7th of September, 2010 when the Claimant was engaged to February 2018, when this case was filed and thereafter from the month of February, 2018 till judgement is delivered in this case.
7. AN ORDER of this honourable court directing the Defendant to render accounts before this Honourable court, of all the sums due to the Claimant as salary increment from the 1st of July 2013 to January 31st 2018
8. AN ORDER of this honourable court granting in favour of the Claimant against the Defendant all that sums of money as declared in the accounts rendered as in ORDERS 5,6 and 7 above
9. AND FOR SUCH FURTHER ORDER(S) as this honourable Court may deem fit to make in the circumstances of this case
On 21/3/18, the claimant filed a motion on notice seeking for leave of court to join Access Bank as a party in this suit. On 30/1/19, the party sought to be joined as a co-defendant in this suit (Access Bank Plc) filed a 29 paragraphs counter affidavit in opposition to the application for joinder. Counsel for the party sought to be joined on the 30/1/19, also filed a process titled preliminary objection challenging the joinder application of the claimant/applicant.in the said process counsel canvassed argument in opposition to the application for joinder. The claimant on 8/3/19, filed a 10 paragraphs further and better affidavit.
On 21/3/19, when this matter came up for hearing, M. Zaro, Esq; counsel for the claimant, informed the court that they have a motion on notice dated the 21/3/18 and filed on the same day, seeking for leave of court to join AccessBank Plc as a co-defendant in this suit.The application is supported by a 10 paragraphs affidavit sworn to by the claimant himself. A further and better affidavit was also filed in response to the counter-affidavit of the party sought to be joined.
In the affidavit in support of the motion on notice, it was averred that the claimant originally filed suit No. NICN/ABJ/299/2017, in 2017wherein Access Bank Plc was 1st defendant and the defendant in this suitwas 2nd defendant. However, the suit of 2017 was withdrawn by his counsel without the claimant’s knowledge. According to the claimant when he enquired about the reasons for the withdrawal his former counsel informed him that the complaint was filed in error without an endorsement to file outside jurisdiction and that he file another fresh complaint. That when the complaint was re-filed, the claimant discovered that the name of 1st defendant (Access Bank Plc) was removed without the claimant’s knowledge. The claimant averred that he worked with Access Bank for five years. That Access Bank Plc wrote petition against the claimant to EFCC and reported him to his first employer which was the cause of his suspension.It was also stated that Access Bank illegally froze the claimant’s account since 2013.
In the further and better affidavit, it was stated that the claimant was employed by Access Bank plc through a recruitment agent on behalf of the bank and there was no misrepresentation on actual employment of the claimant. The claimant was employed and worked for the party sought to be joined until his indefinite suspension without cause. It was also stated that during the employment of the claimant the party sought to be joined held him as a staff by giving him a staff salary account with account number 0030385544 and he was also paid salary by the party sought to be joined in the same manner as all the staffs working with the part sought to be joined. But the bank account had been frozen by the party sought to be joined. The indefinite suspension of the claimant was solely the making of the party sought to be joined.
In the written address counsel for the claimant submitted that from the facts as disclosed in this case by the claimant, the party sought to be joined Access Bank Plc is a necessary party in this suit as its absence from the proceedings will result in the suit not been fairly dealt with by the court. In support of this argument counsel relied on the case of GREEMN V GREEN (1987) NWLR (Pt.61) 481.
Counsel also contended that the test for determining issue of joinder is the need to have before the court such parties as would enable the court to effectually and completely adjudicate upon and settled all the questions in the suit. To buttress this contention counsel cited and relied on the case of LSBPC V PRIFICATION TECH. (NIG.) LTD (2013) 7 NWLR (pt1352) 82. Counsel maintained that the party sought to be joined has a major role to play the absence of which this suit cannot be effectually and completely determined.
It is the contention of counsel that in determining issue of joinder the court is to look at the claim and pleadings of the applicant. In this case looking at the statement facts the application of joinder is meritorious.
Counsel for the claimant relied on all the depositions contained in the affidavit in support as well as the further and better affidavit. Counsel also adopted his written address as his argument in support of grant of this application.
Abbas Sani, Esq; counsel for the party sought to be joined informed the court that they have filed a 29 paragraphs counter-affidavit in opposition to the application for joinder with four exhibits attached to it. The counter-affidavit was sworn to by one NdidiEjimadu, a Secretary/Litigation Clerk in the law Firm of Law Forte, counsel representing the party ought to be joined. Counsel informed the court he is rely on the averments in the counter-affidavit in opposing this application.
The crux of the averment are to the effect that the claimant was not an employee of the party sought to be joined. The claimant was employed by the defendant and merely stationed at Access Bank LadokeAkintola Boulevard Branch, Abuja as IT/ATM support staff pursuant to agreement between Access Bank Plc and strategic Outsourcing Ltd, thedefendant to send some of its staff to certain Access Bank branches to provide specialized services. The party sought to be joined is a recipient of services provided by the defendant through members of her support staff like claimant. The defendant has never been an agent of the party sought to be joined. Sometime in August 2013, it was discovered that a fraud was committed with the connivance of the claimant where he was stationed. Consequently, the claimant was returned back to his employer the decision to suspend claimant was not taken by the party sought to be joined. No privity of contract between the claimant and the defendant.
Counsel then referred the court to a process filed on 30/1/19, titled ‘‘PRELIMINARY OBJECTION CHALLENGING THE JOINDER APPLICATION OF THE CLAIMANT/APPLICANT.’’ Counsel in oral adumbration adopted the argument canvassed in this process as his argument. Counsel urged the court to not to grant the application for joinder.
Counsel identified a sole issue for determination, to wit:
‘‘is Access Bank Plc a necessary party to be joined as a defendant in this suit.’’
Counsel began his argument on the issue for determination by contending that the claimant has neither deposed to facts or pleaded facts which show that Access Bank Plc is a necessary party to this suit. In an application for joinder, the applicant seeking to join a person as a party to a pending suit must show the person whose presence and participation in the proceeding is necessary or essential for effective and complete determination of the claim before the court. Counsel contended that necessary party has been variously described to mean a party having interest or who is not only interested in the subject-matter of the proceedings but also who in his absence the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted. To support this contention counsel relied on the case of BABAYEJU V ASHAMU (1998) 9 NWLR (PT.567) 546; (1998) 7 SC (PT.1) 156 @ 163.
It is also the contention of counsel that parties are categorized as either, proper parties, desirable parties, and necessary parties, to which claimant belongs to none. On this submission reliance was placed on the case of GREEN V GREEN (1989) 3 NWLR (PT.61) 480.
Counsel argued that in determining whether a party is necessary party or not, it is the cause of action that determines necessary parties and not defence or affidavit. To support this position counsel relied on the case of INLAND BANK PLC V CONSOLEX LEGAL PRACTITIONERS & ORS. (2013) LPELR-20194(CA). Counsel referred to exhibit A, paragraphs 1 and 2 of the statement of facts and submitted that the claimant is an employee of the defendant and not that of the party sought to be joined.
It is the contention of counsel that the jurisdiction of this court as spelt out in section 254C of the Constitution of the Federal Republic of Nigeria, (as amended) will show that jurisdiction of this court is limited to matters closely related to labour and employment matters. This court cannot entertain any matter outside its constitutionally prescribed subject matter area. Thus, the court would have to look at claimant’s letter of employment to establish who employed him. Vide exhibit A he was employed by the defendant. Counsel further contended that vide exhibit A it will be seen that it is only the claimant and the defendant that could end the employment relationship between the parties. Counsel also contended that the averment in the statement of claim and exhibits A and B, clearly shows that the claimant was employed by the defendant and deployed to the party sought to be joined, as IT/ATM support staff. The party sought to be joined is only a recipient of services provided by the defendant through members of support staff like claimant, who can be freely deployed by the defendant.
It is the contention of the counsel for the party sought to be joined that the facts disclosed by this case which shows that the defendant is the employer of the claimant, and the claimant has not placed before this court facts to show that he has been in the employment of the party sought to be joined in this suit. To warrant grant of order for joinder.
It is the submission of counsel that only parties to an agreement are bound by the agreement, the party sought to be joined having not been a party to exhibit A which t=is the contract of service between claimant and defendant cannot be a necessary party in this suit. The contract cannot bind a third party. On this submission counsel relied on the case of OGUNDARE V OGUNLOWO (1997) 6 NWLR (Pt.509) 14. It is submitted that the doctrine of privity of contract is about sanctity of contract between parties to it. It does not extend to others from outside. The doctrine will not apply to none party. Counsel also relies on EPEREKU V UNIVERSITY OF LAGOS (1986) 4 NWLR (PT,34) 162.
Counsel submitted that this court will only be competent to adjudicate a matter when the subject matter of the case or the parties to the action are within its jurisdiction and there is no feature in the case which prevent the court from exercising jurisdiction. In support of this proposition of law counsel relied on the case of MADKOLU V NKEMDLIM (1962) 2 SCNLR 34.Counsel also referred to order 13 rule 4 of the rules of this court and submitted that a claimant is permitted to join defendant against whom any relief is alleged to exist, whether jointly, severally or in the alternative. Counsel contended there must be real relief against a defendant before joinder can be made. According to counsel in the case at hand absence of privityof contract will make order 13 rule 4 inapplicable in this suit.
It is the contention of counsel that from the totality of the facts averred and deposed to in the statement of claim and witness statement on oath together with front-loaded document did not disclose facts which the law will recognize as giving the Plaintiff a right to reliefs claimed and that it has some chance of success when only the allegations in the Statement and supporting affidavit are considered. On this submission counsel relied on Cookey vs Fombo (2005) 15 NWLR (pt 947) 182 and Haruna vs Kogi State House of Assembly (2005)6 WRN 121 at 139-141
Further arguing that Access Bank not being a party to the agreement cannot be sued on it as only a person who is a party to a contract can sue or be sued on it unless an agreement for such third party involvement has been made part of the agreement- relying on Makwe V Nwukor (2001) 14 NWLR (Pt.733) 356.
Counsel urged the court to refuse granting of joinder of the party sought to be joined in this case.
I have carefully considered the processes filed and the submissions of the parties. It is clear to me that the issue to be resolved by this court regarding this application is whether there is contract of employment between the claimant and the party sought to be joined, to warrant making of order of joinder of party sought to be joined in this suit.
In the case of DIAMOND BANK PLC V NATUONAL UNION OF BANKS INSURANCE AND FINANCIAL INSTITUTIONS EMPLOYEES (NUBIFIE) & 3 ORS. (unreported) suit No. NICN/ABJ/130/2013, judgment of which was delivered on 6th day of February 2019, this court was faced with the task of determining whether outsourced staff are staff of the outsourcing company or that of the organization to which the outsourced staff were posted to render services to. This is what His Lordship Hon. Justice B. B. Kanyip, PhD, had to say:
‘‘Before addressing the issue whether the defendants must have a contract of employment with the claimant before they can picket the claimant, it is necessary to look into the law’s definition of the term ‘employer’ to see if the claimant itself is not an employer within the meaning of that word. Section 91(1) defines an “employer” to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of the first-mentioned person and the personal representatives of a deceased employer”. The Supreme Court in Shena Security Co. Ltd v. Afropak (Nig.) Ltd &ors  4 – 5 SC (Pt. II) 117 held a contract for the supply of security guards by the appellant to the 1st respondent in consideration of a monthly payment of an agreed amount per security guard to be a contract of service/employment. This conclusion was arrived at most likely given the definition of “recruiting” under section 91(1) of the Labour Act 2004, which provides thus: “recruiting includes all operations undertaken with the object of obtaining or supplying the labour of persons who do not spontaneously offer their services at the place of employment, at a public emigration or employment office or at an office conducted by an employer's association and supervised by the Minister”. See OladapoOlatunji&anor v. Uber Technologies System Nigeria Limited& 2 ors unreported Suit No. NICN/LA/546/2017, the judgment of which was delivered on 4th December 2018. The world of work, in throwing up new forms of work, has brought out new challenges into the traditional concepts of ‘employer’, ‘employee’ and even the ‘employment relationship’ that the law is still grappling with. Questions, as presently is the case, have arisen as to who should be considered an employer and what responsibilities should be borne by the user of labour. The traditional view assumes a relationship between an employee and a single employer. This unitary conception of the employer is, however, losing ground. In appropriate cases, for instance, the courts have upheld the fact of co-employer status between two employers in relation to an employee as was the case in Onumalobi v. NNPC and Warri Refining and Petrochemical Company  1 NLLR (Pt. 2) 304. And in PENGASSAN v. Mobil Producing Nigeria Unlimited  32 NLLR (Pt. 92) 243 NIC the NICN acknowledged the reality of triangular employment relationships.
The reality is that from the evidence before the Court, the claimant has a labour service contract with C & M Exchange Ltd, which labour service contract is Exhibit C1. By this labour service contract, C & M Exchange Ltd supplies labour (workers), who happen to be the defendants as supplied by C & M Exchange Ltd. See paragraphs 5 to 16 of the statement on oath of CW1. By PENGASSAN v. Mobil Producing Nigeria Unlimited, this effectively created a triangular employment relationship between the claimant, C & M Exchange Ltd and the workers C & M Exchange Ltd supplies to the claimant (the defendants). This equally amounts to what the International Labour Organization (ILO) calls a disguised employment relationship. In cases of triangular or disguised employment relationships, the ILO enjoins on courts the principle of primacy of facts i.e. to emphasize substance over form. This is the context and basis upon which the defendants urged the Court, on the principle of primacy of facts, to look into the substance of the relationship between the parties and hold that the relationship is one of a triangular employment relationship for which the claimant are at worse a co-employer of the defendants.’’
Applying the principles enunciated above to this case. It is clear from the facts as disclosed in the statement of facts that there is a contract between the defendant and the party sought to be joined, for the defendant to supply the party sought to be joined with members of staff to render service to the party sought to be joined. The claimant in this suit is a product of that agreement for supply of labour by the defendant to the party sought to be joined. Given this situation I have no choice than to accept that the claimant’s employment by the defendant and his posting to serve the party sought to be joined to render services as IT/ATM support staff, has created triangular or disguised contract of employment relationship between the claimant, defendant and the party sought to be joined as a party in thus suit.
The claimant has averred that he served the party sought to be joined for a period of five years and his suspension was masterminded by the party sought to be joined in this suit. It is pertinent to note that the party sought to be joined has admitted the fact that the claimant was employed by the defendant and thereafter posted to the party sought to be joined to serve at one her offices in Abuja. These facts further support the conclusion that the there is a triangular contractual relationship between the claimant, the defendant and the party sought to be joined in this suit. I so hold.
The party sought to be joined has made heavy whether on issue privity of contract. It is the position of counsel for the party sought to be joined that there is no contractual relationship between the claimant and the party sought to be joined. The contract agreement as depicted in exhibit A is between the claimant and the defendant only. This arguments seems to turn blind eye on the current realities in the area of employment, as the traditional forms of contract of employment have been modified to accommodate the dynamic of the changing world of employment. To this end, the law has recognized implying terms and conditions of contract of service in deserving situations between parties. See AfrabChem Ltd v. Pharmacist Owoduenyi  LPELR-23613(CA), NIGERIA AIRWAYS V GBAJUMO (1992) 5 NWLR (Pt.244) 735, DANIELS V SHELL BP PETROLEUM DEVELOPMENT (1962) 1 ALL NLR 19, B. STABILINI & CO. LTD V OBASA (1997) 9 NWLR (PT.520) 293, BUHARI V TAKUMA (1994) 2 NWLR (PT.325) 183.
In the DIAMOND BANK case (supra) this court made reference to the very essence of an Industrial or Labour or Employment Court as succinctly captured by the instructive and incisive holding of the Supreme Court of India in NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329, to the effect that –
The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.
This principle is very much applicable in the case at hand. Labour courts are specialized courts that when taking decisions they take into consideration realities on the ground. They take global and robust view of matters before them in order to ensure that substance is not sacrificed or undermined at the expense of form.
The claimant in this suit having shown that upon his employment he was posted to render services to the parties sought to be joined, which he did for five years before the party sought to be joined triggered his indefinite suspension since 2013, has clearly made out a case to warrant joining the party sought to be joined. This decision is based on the earlier finding that the relationship ship between the claimant, defendant and party sought to be joined is that of triangular or disguised employment contract. My position is further strengthened by the fact that the defendant in this suit does not require the services of the claimant, it is the party sought to be joined that require the services. The defendant as a finder of service which the party sought to be joinedis the user. Another factor that also worked in favour of grant of this application is the fact that the party sought to be joined opened salary account for the claimant and paid him salary through the account like other staff of the party sought to be joined. See paragraph3 of the statement of facts.
An order joining the parties sought to be joined in this suit as 2nd defendant is hereby granted.
The claimant shall within 7 days from today amend all his processes to reflect the order of joinder. Likewise the defendant shall have seven days within which to amend her processes to reflect the order for joinder.
Ruling entered accordingly.