➥ CASE SUMMARY OF:
Oladapo Olatunji & Ors. v Uber Technologies System Nigeria (2018) – NICN
by Branham Chima (SAL).
NICN – NICN/LA/546/2017
➥ JUDGEMENT DELIVERED ON:
December 4, 2018
➥ AREA(S) OF LAW
➥ PRINCIPLES OF LAW
⦿ NEW EVIDENCE CANNOT BE ATTACHED TO A REPLY TO A WRITTEN ADDRESS
Aside from this, there is sense in the submission of the 1st and 2nd defendants calling for the discountenance of the claimants’ reply on points of law. The claimants had, for instance, filed two further affidavits in response to the counter-affidavits of the defendants, attaching in the process exhibits that they refused to attach to their affidavit in support. These are exhibits that the defendants could not have reacted to. What the claimants did by this procedure is to force a fair accompli on the defendants and make it look like they are the claimants and the claimants are the defendants. In reacting to the bare affidavit in support with no supporting exhibits, the defendants played into the hands of the claimants when they exhibited documents. In the guise of reacting to the defendants, the claimants now chose to bring in their documents knowing that the defendants cannot thereby react to the said exhibits. For example, the argument of the claimants that after every trip, the 2nd defendant (Uber) issues a receipt to the passenger evidencing payment for transportation services provided by the 2nd defendant (Uber), referring to Exhibits 1 to 5 attached to their further affidavit which clearly show Uber’s logo, is one that the defendants cannot react to since it is offered in the reply on points of law, not the main address supporting the originating summons. In effect, what the claimants have done is to introduce new evidence in a reply on points of law, evidence that the defendants cannot react to. This cannot be. — B.B. Kanyip, J.
⦿ INCOMPETENT REPLY ON POINTS OF LAW
Now, the law is that a reply on points of law is meant to be just what it is, a reply on points of law. It should be limited to answering only new points arising from the opposing brief. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. It is not a form to engage in arguments at large. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu  12 SCM (Pt. I) 306. The effect of non compliance is that the Court will discountenance such a reply brief. See Onuaguluchi v. Ndu  11 NWLR (Pt. 590) 204. — B.B. Kanyip, J.
⦿ ORIGINATING SUMMONS IS NOT SUITABLE FOR CONTROVERSIAL CASES
The principle has become trite that the originating summons procedure is not for causes in which facts remain hostile and in conflict. The procedure is ideal for the determination of short and straight forward questions of construction and interpretation of documents or statutes. It is never the applicable procedure in controversial cases where the facts on which the court is invited to construe or interpret the document or legislation in relation to remain violently in conflict. See also Famfa Oil Limited v. AG of the Federation & anor  LPELR-1239(SC);  18 NWLR (Pt. 852) 453.
⦿ DECLARATORY RELIEFS ARE MADE ONLY ON EVIDENCE AND NOT BY ADMISSION OF THE OTHER PARTY
The Law on the requirement to plead and prove his claim for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is well settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendants, where Plaintiff fails to establish his entitlement to the declaration by his own evidence … it has always been my experience and I believe it to be a long standing that the Court does not make declarations of rights either on admissions or in default of pleadings but only if the Court is satisfied by evidence. — B.B. Kanyip, J.
⦿ WORKER AND EMPLOYEE UNDER THE LABOUR ACT
As can be seen, the definition of worker under section 91(1) is restrictive given the persons exempted in terms of paragraphs (a) to (f) of the definition. The point is that section 91(1) defines a worker only for the purposes of the Labour Act; as such, not all employees are workers for purposes of the Labour Act. The category of persons under paragraphs (a) to (f) of the definition of a worker may thus be employees but not workers for purposes of the Labour Act. Section 91(1) of the Labour Act defines a worker by reference to an employer i.e. as one who entered into or works under a contract with an employer. So, who is an employer? The same 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 common denominator in the definition of a worker and an employer is the contract of employment. A “contract of employment” is thus defined by same section 91(1) to mean “any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other personagrees to serve the employer as a worker”. — B.B. Kanyip, J.
⦿ CLAIMANT IS TO ADDUCE EVIDENCE THAT WILL SUSTAIN HIS CLAIM ONLY
A claim is circumscribed by the reliefs claimed; and the duty of a claimant, therefore, is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same So held the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd  LPELR-591(SC);  10 NWLR (Pt. 1095) 399;  5 – 6 SC (Pt. II) 47. I already held that by Dmez Nig Ltd v. Nwakhaba & 3 ors, the claimants cannot succeed on the evidence of the defendants; they can only succeed on their own evidence, something that is just not sufficiently before the Court. This means that the declaratory reliefs in terms of reliefs (1) to (3) cannot be granted given the insufficient facts/evidence advanced by the claimants in proof of same. I so hold. — B.B. Kanyip, J.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice B. B. Kanyip, Phd
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
Mrs Chinasa Unaegbunam;
➥ CASE FACT/HISTORY
To the claimants, that had applied to the defendants to take up slots as one of their drivers for which the defendant requested them to bring their cars to the defendants’ training centres, which they did. The defendants conducted training sessions for them and the cars after they were recruited by the defendants as part of their drivers. That the defendants gave then several requirements for their cars and insisted on the means by which they carried out their duties as drivers including what they are to wear and how much they are to charge per trip. That they commenced work as one of the defendants’ drivers and were periodically given work to do upon which they earned weekly wages which were usually paid every Tuesday. That whenever they carried passengers, the passengers paid directly to the defendants who periodically paid them wages after making all relevant deductions including taxes. That the defendants periodically gave instructions as to how to carry out their duties especially relationship with customers, speed limits, maintenance of the car, insurance cover, etc. That they recently discovered that the defendants never made any tension remittance to any tension funds administrators and so they approached them on same but the defendants denied liability, hence this suit. The argument of the claimants is that they are employees of the defendants. The defendants, however, disagree contending that the claimants are independent contractors.
The claimants filed this suit on 7th November 2017 by way of an originating summons, which was later amended. The amended originating summons is supported by a 19-paragraphed affidavit deposed to by the 2nd claimant (with no exhibit attached) as well as a written address.
By the amended originating summons, the claimants are praying for the following reliefs: “A declaration that the claimants and members of their class are employees of the defendant. A declaration that by virtue or nature of the defendant’s control over the claimants and members of their class, they are not meant to be classified as independent contractors. A declaration that the defendant is liable for the acts of the claimants and other members of their class while acting in the course of his employment with the defendant. An order mandating the defendant to provide all relevant benefits, including but not limited to health insurance, pensions and other benefits to the claimants and members of their class. Perpetual injunction restraining the defendant, its officers, from further denying liability for the claimants’ acts done in the course of their employ with the defendant.”
➥ ISSUE(S) & RESOLUTION(S)
I. Whether paragraphs 5 and 7 of the claimants’ further affidavit, being conclusions and arguments, should be struck out?
RULING: IN RESPONDENT’S FAVOUR.
A. PARAGRAPHS 5 & 7 ARE CONCLUSIONS CONTRARY TO THE EVIDENCE ACT
“Paragraph 5 of the further affidavit provides thus: “From the receipts issued to the passenger, the 2nd Defendant’s logo is boldly printed on same and I personally believe that such is a confirmation that the transportation services are provided by the 2nd Defendant”. This is no doubt an argument and a conclusion contrary to section 115 of the Evidence Act 2011. Paragraph 7 provides that: “I believe that drivers, and passengers alike, all knew they are dealing with the 2nd Defendant (Uber) – a company which provides transportation services to passengers and employment for drivers”. This too is a conclusion contrary to section 115 of the Evidence Act 2011. Both paragraphs 5 and 7 are accordingly struck out. I so find and hold.”
II. Whether the Claimant is entitled to succeed?
RULING: IN RESPONDENT’S FAVOUR.
A. THERE IS NO EVIDENCE SUPPORTING THE CLAIMANT’S CASE
“A closer look at the affidavit in support of the originating summons will also show that the claimants’ averments are not supported with any authenticating evidence in the nature of documents and so leave out grey areas unsuited for an action commenced vide an originating summons. A number of examples will suffice. First, in paragraph 4 of the affidavit in support, the claimants’ “applied to the Defendants to take up slots as one of their drivers”. How was this application made? Was it orally or in writing? The Court is not told. Second, in paragraph 6, “the Defendants conducted training sessions for us and the car”. How were the training sessions conducted? How is a training session conducted on a car? Again, the Court is not told? Third, in paragraph 7, “the Defendants gave us several requirements for our car and insisted on the means by which we carried out our duties as drivers including what we were and how much we charged per trip”. What are these several requirements for the car? What are the means that the defendant insisted by which the claimants carry out their duties? What was it that the claimants had to wear? And how much did the claimants charge per trip as insisted upon by the defendants? The Court is not told. Four, in paragraph 8, “the Defendants were strict on the specifications our car and every other condition in which we carried out my duties as drivers including mandatory insurance cover”. What are the specifications of the claimants’ cars insisted on by the defendants? What are the “every other condition” in which the claimants carried out their duties? The Court was not told; nor was the Court shown any example of the mandatory insurance cover the defendants insisted on. Five, in paragraph 9, “we earned weekly wages which were usually paid every Tuesday”. What is the evidence and quantum of these weekly wages paid every Tuesday? The Court is not told. Lastly, in paragraph 11, “the Defendants periodically give us instructions on how to carry out our duties especially relationship with customers, speed limits, maintenance of the car, insurance cover et al”. What are these conditions? How periodic were the conditions given? The Court is not told. As it is, therefore, there is no way that the claimants’ affidavit in support of the originating summons, as it is, can sustain this action; not with these grey issues, issues that could appropriately have been brought to the fore by pleadings not the affidavit that the claimants supplied.”
B. ORIGINATING SUMMONS IS UNSUITABLE FOR THE CLAIMANTS CASE
“Even a specific consideration of questions (1), (3) and (4) will reveal their illogicality in terms of a suit brought vide an originating summons. Question (1) i.e. whether or not, considering the circumstances of the facts of this case, the claimants and members of their class are independent contractors of the defendant talks of the circumstances of this case. What are these circumstances of the facts when what the claimants bought before the Court is the mere affidavit in support? The claimants waited for especially the 1st and 2nd defendants to file their counter-affidavit with supporting exhibits before they started filing documents in support. The claimants may think that they are being strategic. I have had cause previously to deprecate this behaviour of claimants’ counsel who think that the originating summons procedure is necessarily a short cut to justice. See, for instance, Dr Olusola Adeyelu v. Lagos University Teaching Hospital (LUTH) & 2 ors unreported Suit No. NICN/LA/94/2017, the judgment of which was delivered on 25th April 2017,First Bank of Nigeria Limited v. Nigeria Union of Pensioners & 3 ors unreported Suit No. NICN/LA/48/2016, the judgment of which was delivered on 12th July 2016 and Bethel Ezego& ors v. NUFBTE & anor unreported Suit No. NICN/LA/221/2017, the judgment of which was delivered on 16th July 2018.”
C. THE CLAIMANTS POSED HYPOTHETICAL QUESTIONS TO THE COURT
“Question (3) i.e. whether or not the employment relationship between the claimants and the defendants has created an agency relationship assumes an already existing employment relationship between the claimants and the defendants even when this is what question (2) seeks to determine. Aside from not referring to any document for construction, once, for instance, it is decided that there is an agency relationship between the parties, then what? Logically speaking, since the claimants assumed in this question that there is an employment relationship between the parties, of what use is an agency relationship to them that will then warrant an inquiry in terms of determining question (3) as posed? What the claimants have posed as question (3) is thus not only hypothetical but academic; and courts do not answer hypothetical or academic questions. See Akeredolu v. Aderemi (No.2)  2 NWLR (Pt.25) 710 at 725 and Eperokun v. University of Lagos  4 NWLR (Pt. 34) 162 at 177.”
“Question (4) is whether or not the defendant as the claimants’ employer ought to be vicariously liable for the claimants’ malfeasance. This question, as is question (3), assumes that there is an employment relationship between the claimants and the defendants. In assuming the existence of an employment relationship, question (4) asks whether the defendants ought (the key word here is “ought”) to be vicariously liable for the claimants’ malfeasance. First no sort of malfeasance has been revealed to this Court by the claimants; and none is actually in issue before the Court. Secondly, in asking whether the defendants ought to be vicariously liable, the claimants are talking in the realm of conjecture and speculation; and courts do not decide cases on the basis of speculation or conjecture. See Obasi v. M. Bank  124 LRCN 357,Buhari v. Obasanjo  130 LRCN 1925 and Clement Abayomi Onitiju v. Lekki Concession Company Ltd unreported Appeal No. CA/L/686/2013, the judgment of which was delivered on17th May 2016. In truth, question (4) posed by the claimants is hypothetical, it not being on any real infraction of any right of the claimants. Courts do not answer hypothetical or academic questions. See Akeredolu v. Aderemi (No.2) and Eperokun v. University of Lagos(both supra). The argument of the defendants that they cannot be held liable for the wrongful acts of the claimants because the claimants are independent contractors (or the claimants’ argument that the defendants would be liable even if the claimants were independent contractors) cannot be resolved unless the specific wrongful acts are disclosed; and this has just not been done as far this case is concerned.”
III. Whether or not by the interpretation and construction of “worker” under section 91 of the Labour Act, the claimants and members of their class are employees of the defendant?
RULING: IN RESPONDENT’S FAVOUR.
A. NO SUFFICIENT FACTS TO RULE THAT THE CLAIMANTS ARE EMPLOYEES
“The point from all of this is that the relationship between the parties is determinable based on the facts and on the principle of the primacy of facts. Express contractual terms may even be ignored if they are inconsistent with the reality of the relationship between the parties. Forms of work have changed and the traditional or orthodox distinctions between the worker/employee and the employer no longer exists or have been stretched to absurd limits. But all of this cannot be determined if there are no facts upon which the inquiry can be done as is the case in the instant suit. The claimants want this Court to rule that they are employees, but supplied insufficient facts and evidence for that determination given the nature of the relationship between the parties.”
“On the whole, the claimants did not prove their case. What the claimants put before the Court as their case is nothing but one that is in the main speculative, conjecture, academic and hypothetical. In Clement Abayomi Onitiju v. Lekki Concession Company Ltd unreported Appeal No. CA/L/686/2013, the judgment of which was delivered on 17th May 2016, the Court of Appeal found that the counterclaim of the cross-appellant was based on speculation and conjecture; and since courts do not speculate on possibilities but act on actualities, the Court of Appeal dismissed the cross-appeal on the counterclaim. In like manner, the instant suit being speculative, conjecture, academic and hypothetical, fails and so is hereby dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)