Contract of Service / Contract for Service ??? - Factors to consider

The Supreme Court of Nigeria in the case of SHENA SECURITY CO. LTD VS - AFROPAK (NIG) LID & 2 OTHERS (2008) LPELR 368/2002; (2008) 18 NWLR (pt.1118) 77, (2008)4-5 S.C (PT 11) 117 laid down the following factors that should guide counts in determining which kind of contract parties entered into.

a)     If payments are made by way of "wages" or "salaries" it 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 "fee" in the case at hand; remuneration is neither payment of wages or salaries nor payment of fee. The contractual agreement was modeled upon an apprentice style where the labour of the servant is remunerated by way of settlement at the end of the contract to assist such servant or employee continue on his own rather than payment of monthly salary which the employee may not be able to save and startup a business of his own. The claimant was therefore; to be paid by way of settlement as against a "fee".

b)    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, it indicates that it is a contract for service. In claimant's case, the Defendants provided every work tool and the duty of the claimant was to receive stock, sale and account for sales etc. it is contract of service as against contract for service.

c)     In  a  contract  of service/employment,   it  is  inconsistent  for an employee to delegate his duties under the contract and thus where a contract allows  a   person  to  delegate  his  duties thereunder;   it becomes a contract for service. My lord, the terms of the agreement and nature of the claimants duties does not allow claimant to delegate his duties thus; an indicator of a contract of service.

d)    Where the hours of work are not fixed it is not a contract of employment or of service but that for service. In the instant case, the employment of the claimant is fixed by time hours of work this, indicative of contract of employment.

e)     It a 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 a contract for service. In the case at hand the claimant carried on his contract at the premises of the defendant thus an indicator that the contract is one of service and not for service.

f)      Where office accommodation and secretary are provided by the employer, it is a contract of service/of employment. The defendants herein provided office accommodation and a secretary from the above guide set out by the Supreme Court in the case of SHENASECURITY CO. LTD - VS - AFROPAK (SUPRA) it can be safely concluded that the contract that existed between the claimant and the Defendant subject of this dispute was a contract of employment or of service and not a contract for service.

Appellate Hearing: Tips to settle your nerves!

This is just a random post I felt should go out immediately. Perhaps I'll edit in future, but right now, the tips should go out. More often than not, practitioners face their 'first time' before the Court of Appeal or appellate practice in general and seem to get it all mixed up with the 'hearing' process before these courts. The following are some of the tips (mark my words 'some', not 'all') to settle your nerves a bit, while appearing before the Court:

1.  As always, neat appearance, humility and voice are key attributes of a good legal practitioner. They win you respect and honour before the Court. Like I said, I'll keep this short.
2. Please prepare and read your files - even when holding briefs or when a brief has been 'forced' on you.
3. Start your appellate hearing (as appellant's counsel) in the following Order (please these are just random tips)
• This is an appeal against the Judgment /  Decision of the High Court of ..... State / Federal High Court, .... Division / (any other tribunal or court). (Note that the name of the trial court judge is not mentioned. The Court of Appeal is not interested in the name of the Judge. The Court / Tribunal  is the most important reference to be made.
• The Judgment / Decision is found at pages ................. of  (Volume.... of ) the Record of Appeal - (Note: Even though this might have been covered in your Brief, it is still important to mention this during hearing)
• The Appellant filed a Notice of Appeal against the decision of the High Court / Federal High Court / Tribunal on the .....(date of filing the Notice of Appeal). The Notice of Appeal is contained on pages.......... of the Record of Appeal (Note: This is where you'll know if your appeal is competent. The dates within which to bring an appeal against a judgment must be clear. See for instance, Section 24 of the Court of Appeal Act. If you notice any error in the dates during your preparations, don't panic! If the date for hearing the appeal isn't close by, quickly prepare motion for extension of time or trinity prayers (where leave is required and you are out of time). However, where the dates are close by, it may be imperative to give the counsel on the other side an update to avoid incurring huge cost! Running away from cost might not be totally out of the table, but you could mitigate it with earlier prompt.
• Where you had obtained an Order for Amendment of the Notice of Appeal, Please refer to the Notice of Appeal on the Record of Appeal as "Original Notice of Appeal" and then refer the court to the date of filing the Amended Notice of Appeal and the date the Order was made by the Court. It is also important to state that you would be relying on the 'Amended Notice of Appeal'. Where there are several amended Notices of Appeal, do ensure you refer to the latest one. In case of several notices of Appeal filed during the period allowed for filing Notices of Appeal, also ensure to rely on just one of the Notices of Appeal. The Courts have held that filing several Notices of Appeal within time is allowed, the Appellant only has to indicate which one is to be relied upon in the Appeal.
• The Record of Appeal was transmitted on the ...(date appeal was entered)..... (Again, this is another point to note where extension of time may be required to regularize your Record of Appeal). Where the time for compilation and transmission of Record had elapsed, it is important to file an application for extension of time to regularize it. Ensure the application is filed and served before the date of hearing of the appeal (if out of time) to avoid further delays.
  
• The Appellant's Brief of Argument was filed on the ...........(date of filing the Appellant's Brief)........(Yet again, this may be key. If your appellant's brief was filed out of time, ensure there's an application to regularize it).
• Upon receipt of the Respondent's Brief of Argument, the Appellant filed a Reply Brief on the ..........(date of filing the Reply Brief)......
• Seek to adopt both Briefs in support of your appeal and urge the Court to allow the appeal.
  
• Draw the attention of the Court to salient issues / parts of your brief, noting that you have a very little time to do this. Precision is key.
1.  Respondent
4. As a Respondent's counsel, you may have a Preliminary Objection argued in your brief. Please bring this up before the appeal is argued. Inform the Court of the Notice of Preliminary Objection, date it was filed, and where the argument is contained in your brief (e.g. paragraphs 4.00 - 4.09 of the Respondent's brief of argument on pages 7 - 10 of the Brief). Adopt the preliminary objection and the argument and pray the Court to strike out / dismiss the appeal
5. Where there is no Preliminary Objection, just adopt your Respondent's Brief of Argument - Noting also the dates for filing the Respondent's Brief of Argument - Where you are out of time, it is most appropriate to seek an extension of time to file it.

These are the few tips. Mastering the dates for filing of appellate processes is always key. For general Appeals, three months for civil (final) appeals, and 90 days for criminal (final) appeals. 14 days for interlocutory appeals. See Section 24 of the Court of Appeal Act. For Record of Appeal, Order 8 of the Court of Appeal Rules, 2021 specifies  the time to compile the Record of Appeal. There are however special rules for special appeals, It is always  important to seek these special rules when dealing with interlocutory appeals for fast track appeals or special appeals relating to AMCON, EFCC, Electoral Disputes etc. The dates for filing of the Briefs are also regulated by these Rules.

I hope these have settled some nerves!

How Evidence of Correspondence is Proved

Practice Note:

 

How Evidence of Correspondence is proved:

 

 SUIT NO. NICN/ABJ/144/2017 AYO OYARERO VS THE BRITISH HIGH COMMISSION

 

"However this email only shows what the 1st defendants officer Edward Nyong prepared for dissemination to the GPC holder and Approvers in Lagos and Abuja. There is no evidence that this email was ever sent out or received by any one, the law is clear on how the actual delivery of correspondence can be proved. See The law has been well established that in order to prove that a letter was actually delivered to the addressee there must be  proof of receipt and this can be established by (a) dispatch book indicating the receipt, or (b) evidence of dispatch by registered post or evidence of witnesses, credible enough that the person was served with the document. NLEWEDIM Vs. UDUMA [1995] 6 NWLR 309 at p394 para B. followed in AGBAJE Vs. FASHOLA [2008] 6 NWLR (Pt. 1082)1. With regards to email correspondence I find and hold that an acknowledgement email from any of the recipients or a reply from any of the addressees forwarding their team’s proposed and adopted strategies for internal control. Any such return email would suffice and satisfy this requirement. Especially as Exhibit D8 is bereft of any signature block which would display incode of the domain name, sever, subject contents and other characteristics of the mail and its being sent.

 
In the unreported case of SUIT NO: NICN/CA/17/2014MR. OBONA AKPAN OFEM Vs. LOCAL GOVERNMENT SERVICE COMMISSION & 3ORS delivered on the 31st May 2017, this court held in respect of documents lacking evidence of delivery or dispatch that “the said exhibit..... I find were not served on the claimant and as such are only evidence of documents prepared by the defendant  and have no nexus with the claimant despite they bear the claimant’s name. In the instant case I find that there is nothing on Exhibit D8 to indicate that this email was ever sent to the within named addressees or anyone afortori received by any one"

 

 

Cross Examination is an art, but not a licence to ask any random questions

 

 

Hi everyone! I only wished to make this post as a guide, a sort of warning while asking cross examination questions in court. More often than not, lawyers are always willing to pick out a lying witness. Afterall, it is part of the duty of counsel to discredit a witness, especially one that's telling lies. In carrying out this duty however, the lawyer has to be smart and avoid getting in trouble.
Questions that tend to give credence to the case of the other party ought not be asked at all. It may sound a bit elementary, but I just came across one. I've been reviewing this judgment for a few hours now, trying to untie something in it. So I came across the question a defence lawyer asked an eyewitness to the crime as follows: "was the 3rd Defendant armed or not when he came looking for the deceased"? Now, the question the 'smart' lawyer asked may seem innocuous, but it ended up ruining the whole case built up by the defendant.
In that case, the Defendant had relied on the defence or alibi - he simply was not at the scene of the crime at all. However, in seeking to discredit the witness, the Defendant's counsel ended up placing the defendant right in the scene of the crime! The answer to the question would have, at least to any audience, shown that the defendant was at the scene of the crime. It was just whether he was armed or not. At this point, it would also be wrong for counsel to decide to chose which part of the cross examination he wanted, and which part he does not. In the case of RIMDAN V. LAR, the Court held as follows

A counsel is not allowed to pick and choose from relevant answer to his questions in cross-examination. In the instant case, the counsel to the appellant asked one question too many and got answers he never bargained for which indeed knocked the bottom off his case. He would not be heard to say that the answers given by the DW7 to his questions under cross-examination were not pleaded and therefore inadmissible. There is no basis for remotely suggesting that DW7's answers under cross-examination ought to have been pleaded before admitting them in evidence as they emanated from cross-examination unchallenged.

What do you think?

Can you serve hearing notice by electronic means?

COMPACT MANIFOLD & ENERGY SERVICES LTD v. PAZAN SERVICES NIG. LTD

(2019) LPELR-49221(SC)

Principle

PRACTICE AND PROCEDURE - HEARING NOTICE

- Whether hearing notice can be served by electronic means

"May I dwell on the issue of hearing notice that was allegedly not served on the appellant as amounting to denial of fair hearing. It is however the mode of service that is being challenged by the appellant's learned counsel in this appeal to have denied him fair hearing. Failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the Court would have no jurisdiction to entertain it. Hearing notice is a document or information that emanates from the registry of a Court, giving legal notification to parties in a suit the dates on which the suit would be heard. Once a party or his counsel is served hearing notice they are both deemed to have actual knowledge of the date the suit would be heard, and if such a party decides to stay away from Court he does so at his own peril. See Per RHODES-VIVOUR, JSC in DARMA v. ECOBANK (2017) LPELR-41663 (SC), Nevertheless, it is on record that the appellant was served or informed of the hearing date of 15/3/2016 via SMS. The Evidence Act has now taken notice of the technology age we are in that electronic evidence is now admissible. This was ably tackled by my learned brother, per PETER-ODILI, JSC in ENL CONSORTIUM LTD. V. SHAMBILAT SHELTER (NIG.) LTD. (2018) LPELR- 43902 (SC), when he pungently and right held: "The point has to be made that the phone call mode of service would ordinarily be of good service so long as the party is provided the notice at least 48 hours before the scheduled Court date. The regularity of service is no longer jettisoned because it was made electronically as the current rules of Court have ensured. See Order 2 Rule 4(c) of the Court of Appeal, 2013 rules." The lower Court in this case reported as COMPACT MANIFOLD & ENERGY SERVICES LTD V. PAZAN SERVICES (NIG.) LTD. (2017) LPELR-41913 (CA), Per NIMPAR, JCA, observed and I adopt and agree with him as a solid legal foundation for electronic service of hearing notice and other legal processes thus: "The essence of a hearing notice is to bring to the notice of the party that his matter will come on the date named in the notice of hearing. Can the notice be effected by other means of notification? The answer is in the affirmative. When the rules use the words hearing notice, it did not specify that it must be hardcopy. Was the judge wrong to use the electronic method of informing parties about the date of hearing? I pause here to say this is the 21st century and technology is ruling every aspect of human endeavour and therefore even Courts must be abreast of these technological advancement and be ready to absorb the aspects that will enhance the quality of justice and aid speedy determination of cases. The Courts have also moved on in that regard. Indeed, electronic service has taken root in the Nigerian legal system and it would be strange for anybody to frown at being served electronically. See CONTINENTAL SALES LTD. V. R. SHIPPING INC (2012) LPELR- 7905 (CA). I am of the view that the Court below was in order by directing that the appellant should be informed by text. The Court as a discretion to direct the notification in a particular way. Issuance of a hard copy hearing notice is not a requirement of law and failure to issue and serve same cannot offend the rule of fair hearing. See MIRCHANDANI V. PINHEIRO (2001) 3 NWLR (Pt. 701) 552 @ 573. wherein the Court held: "It is not in all cases that the absence of it will automatically vitiate trials in the context of Section 36 of the 1999 Constitution. A hearing Notice is not therefore a mandatory judicial process that must be issued and served in all cases. The requirement is a rule of the Court not a statutory requirement. Rules of Court are to aid the Court in adjudication of cases. It is not to arm-twist the Court into becoming a robot." Per UWANI MUSA ABBA AJI, JSC (Pp 29 - 32 Paras B - E)

 

Objection on Territorial Jurisdiction - What the Defendant must prove.

 The position of the law has always been that he who asserts must prove. The usual

SAINT GOBAIN PAM S. A. v. INTERNATIONAL CONSULTANTS INCORPORATED

(2015) LPELR-24663(CA)

Principle

JURISDICTION - TERRITORIAL JURISDICTION

- Duty on a defendant who contends the territorial jurisdiction of a Court in an action founded on contract

"A defendant who contends that the forum of the trial Court is not convenient for the determination of the issue raised on the writ of Summons must show: (a) That the defendant does not reside in or carry out business within the geographical area of the Court: (b) That the cause of action did not arise within the geographical area of the Court and; (c) That the contract is not to be performed within the geographical area of the Court. The onus is on the defendant to establish all these; Arjay Limited v. Airline Management Support Ltd (supra)." Per ONYEKACHI AJA OTISI, JCA (Pp 60 - 60 Paras A - C)

Are processes attached to amended pleadings still valid in law?

 However, in the case of Gusau v. Comptroller General of Customs & Ors. [2014] LPELR-23367[CA] 18-19, the Court of Appeal held that processes attached to the original pleading which has been amended are still valid and can be relied on in determination of the suit. Ekanem, J.C.A., who read the leading judgment, held thus:

 

“I agree with counsel for the respondents that the written statement on oath is a distinct process from the statement of defence. It serves, inter alia, to support the statement of defence but it is not a part of it. This is why it is assessed and paid for distinctly. Thus, a statement of defence may be amended by order of Court and the amended statement of defence filed without the need to file an amended or fresh witness statement on oath. An amended pleading or process including a statement of defence has a retrospective effect and dates back to the date of the original process…It follows from the above that when the lower Court granted the respondents leave to amend their statement of defence and the already filed amended statement of defence was deemed as properly filed, the amended statement of defence took effect from the date of the original statement of defence and indeed took its place. Whatever was filed to support the original statement of defence is thus deemed to support the amended statement of defence from the date of the original statement of defence.”