IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, PhD

 

DATE: DECEMBER 5, 2025              

SUIT NO: NICN/AWK/13/2023

 

 

BETWEEN

Nigeria Social Insurance Trust 

Fund Management Board                                                 - Claimant 

 

AND

Holy Rosary Specialist Hospital & Maternity        -            Defendant                                                            

 

REPRESENTATION

Adaeze Mbakwe, Esq., for the Claimant.

Sir Collins Okpara, Esq., for the Defendant.

 

 JUDGMENT

INTRODUCTION

  1. The Claimant filed an originating summons dated 16th June 2023. The Originating Summons is supported by an affidavit of 16 paragraphs deposed to by Ezeonwuka Matthew in the claimant’s company.

 

  1. The claimant prays for the following reliefs;
  2. A declaration that the defendant is an employer within the context and meaning of the Employees’ Compensation Act 2010 and by so being, obligated to make a minimum monthly contribution of 1.0 percent of defendant’s total monthly payroll from July, 2011 up to date and thereafter into the Employees Compensation Fund Managed by the claimant.
  3. A declaration that the defendant being an employer within the context and meaning of the Employees’ Compensation Act 2010 is obligated to cause to be furnished to the claimant complete and accurate particulars of the defendant’s total monthly payroll from July, 2011 up to date and thereafter.
  4. An order compelling the defendant to keep at all times, with the claimant, complete and accurate particulars of the defendant’s payrolls from July, 2011 up to date and thereafter.
  5. An order compelling the defendant to compute/calculate and make a minimum monthly contribution of 1.0 percent of the total monthly payroll of the defendant from July, 2011 up to date and thereafter into the Employees Compensation Fund Managed by the claimant. 
  6. An order granting entry to officers of the claimant into the workplace of the defendant situate at Waterside, Mission Road, Onitsha, Anambra State for purposes of inspecting and examining the defendant’s minimum monthly contribution of 1.0 percent of the total monthly payroll from July, 2011 up to date and thereafter.
  7. An order compelling the defendant to grant officers of the claimant access to the defendant’s total monthly payroll from July, 2011 up to date and thereafter for purposes of assessing the defendant of the minimum monthly contribution of 1.0 percent of the total monthly payroll from July, 2011 up to date and thereafter.
  8. An order directing the defendant to pay into the Employees Compensation Fund 40% of the total monthly payroll from July, 2011 up to date as penalty for default in failing to cause to be furnished to the claimant complete and accurate total monthly payroll from July, 2011 up to date, and for failure to make minimum monthly contribution of 1.0 percent of the total monthly payroll from July, 2011 up to date into the Employees Compensation Fund Managed by the claimant.
  9. An order directing the defendant to pay into the Employees Compensation Fund 10% interest on the defendant’s total monthly payroll from July, 2011 up to date.
  10. The sum of Five Million Naira (?5,000.000.00) only as cost of the action.

 

CASE OF THE CLAIMANT

  1. The claimant through his deposition said the defendant operates the business of a Hospital with employees it pays on a monthly basis at Waterside, Mission Road, Onitsha, Anambra State. That the defendant has been operating the said business with persons under contract of employment such as Doctors, Nurses, Laboratory Attendants, Cleaners and Administrative staff. That the claimant introduced the Employees Compensation Scheme (ECS) and Employees Compensation Act 2010 to the defendant through a letter captioned “Introduction to the Employees Compensation Scheme dated 16th March, 2022. The Letter was marked Exhibit NSITFMBI.

 

  1. The claimant urged the defendant to register and comply with the Employees Compensation Scheme (ESC) by serving him the letters captioned “Notice/Request for Registration with the Employees Compensation Scheme” dated 7th September, 2022 and “Reminder Notice/Request for Registration with the Employees Compensation Scheme” dated 17th January 2023 admitted as Exhibits NSITFMB 2 AND NSITFMB 3 respectively.

 

  1. The claimant further served on the Defendant Pre-Legal Action Notice dated 5th April, 2023 admitted as Exhibit NSITFMB4 and Notice of Statutory Assessment of Salary/Wages Record dated 19th May, 2023 marked Exhibit NSITFMB5.

 

  1. That after Introduction of the Scheme and Issuance and services of Exhibits NSITFMB 2, NSITFMB 3, NSITFMS 4 and NSIFMS 5 the defendant has willfully failed/refused to furnish the claimant with its complete and accurate total monthly payroll from July 2011 up to date thus failing to make minimum monthly contribution of 1.0 percent of its total monthly payroll from July 2011  up to date into the Employees Compensation Fund Managed by the claimant.

 

  1. Furthermore, the defendant has willfully refused/neglected to allow the claimant or her officers entry into the defendants’ workplace for purpose of inspecting defendants complete and accurate total monthly payroll from July 2011  up to date and assess same with a view to ascertaining the defendant’s minimum monthly contribution of 1.0 percent of its total monthly payroll from July 2011  up to date. That repeated demands were made to the defendant to make its mandatory one percent of total monthly payroll contribution to the Employees Compensation Fund but the defendant willfully neglected to make the said contribution.

 

  1. The Defendant being an employer is under a statutory obligation pursuant to Section 39 (1) and 40 (a) and (b) of the Employees’ Compensation Act 2010 to cause to be furnished to the claimant an estimate of the probable amount of the defendant’s payroll together with any further information required by the claimant. Where the defendant fails to comply with the above provisions the claimant may make its own estimate of the payrolls, access and levy on that estimate and the defendant is bound by it pursuant to Section 39 (2) of the Employees Compensation Act 2010.

 

  1. The claimant urged the Court to grant all the reliefs as contained in the originating summons.

 

THE CASE OF THE DEFENDANT

  1. The defence averred that the defendant is not a legal person, not a juristic person, not body corporate and not “an employer” within the context of the Employee Compensation Act 2010. The defence averred that the defendant is a faith-based medical complex financed and funded by the Christain faithful of the Catholic Archdiocese of Onitsha for the benefit of the poor and less privileged members of the public, and in furtherance of God’s work; that the Doctors and Nurses and other staff who are Reverend Clergies and Christain faithful of the Holy Catholic Church are not employees either on “oral or written” contract of employment with the alleged defendant.

 

  1. The defendant further averred that the alleged defendant is not a legal or a juristic person capable of entering into either an oral or written contract of employment with an employees or any person. The defendant averred that the representatives of the claimant came to the defendant’s complex and were well received wherein they introduced the Employee’s Compensation Scheme (ECS). The defendant averred that the claimant’s representatives were informed by clergy doctors, catholic faithful who work in the defendant’s complex; that the hospital is faith-based Christain catholic medical complex dedicated for the service of the needy and poor masses. The defendant averred that he did not refuse to remit and has no issue or any dispute over the remittance or non-remittance of any contribution of 1% of gross payroll to the NSITF.

 

  1. The defendant averred that the claimant representative did not disclose or work out what will be the 1% of the gross payroll to NSITF. The defendant averred that the representatives of the claimant sought for their personal monetary gratification to enable them exclude the alleged defendant from Employees Compensation Scheme (ECS) which was refused and as at 16th day of June 2023 this suit was filed. That there is no dispute between the claimant and the defendant.

 

SUBMISSION OF THE CLAIMANT

  1. The claimant submitted four (4) issues for determination as follows;
  2. Whether by the construction of the extant provisions of Section 73, 33(1), 39(1), (a), (b). (ii) (iii), (2), (3) and (4), 40 (1) (a) (b) (2) and (5) of the Employees’ Compensation Act, 2010 the defendant is an employer and by so being, obligated to make a minimum monthly contribution of 1.0 percent of its total monthly payroll from July 2011, up to date into the Employees’ Compensation Fund managed by the claimant and cause to be furnished to the claimant, a complete and accurate estimate of the probable amount of the defendant’s payroll from July 2011 up to date.
  3. Whether by the construction of the extant provisions of Sections 34(1) (2) (a) (b) and (3) and 36 (1) and (2) of the Employees’ Compensation Act, 2010 the claimant is entitled to and has a cause of action against the defendant for the unpaid 1.0 percent minimum monthly contribution of the defendant’s total monthly payroll into the Employees’ Compensation Fund for the period of July 2011 up to date.
  4. Whether having regard to the provisions of Section 53 (1) (2) (3) (4) (5) (6) and (7) and 54 (a) (b) (c) (d) (e) (f) and (g) of the Employees’ Compensation Act, 2010 the claimant or any of its officers or person authorized thereby is entitled to, at any time or all reasonable hours, entry into the workplace of the defendant and have access to inspect and examine defendant’s payroll and other necessary documents with a view to ascertaining a proper assessment of contribution payable by the defendant.
  5. Whether the claimant is entitled to costs of any action to recover the unpaid assessment in accordance with Section 36 (1) of the Employees’ Compensation Act 2010.

 

  1. The claimant in arguing his issues for determination referred to Section 2(1), 32(1), (a), (b) and (C), 33(1), 34(1), (2), (a), (b), and (3), 36(1) and (2), 39(1), (a) (b), (i) (ii) (iii) (2) (3) and (4); 40 (1) (a) (b) (2) and (5), 53(1) (2) (3) (4) (5) (6) and (7), and 54 (a) (b) (c) (d) (e) (f) and (g) and thus are reproduced below:

2 (1) Subject to the provisions of Sections 3 and 70 of this Act, this Act shall apply to all employers and employee in the public and private sectors in the Federal Republic of Nigeria.

32 (1) The Board shall –

(a) carryout assessment of the amounts to be paid into the fund by employers under the Act.          

(b) undertake regular actuarial valuation of industries, sectors and workplaces and determine the rates of contributions by employers into the fund by such industry, sector or workplace.

(c) receive and credit into its account, all money payable into the fund under this Act.

         33(1) Every employer shall, within the first 2 years of the commencement of this Act, make a minimum monthly contribution of 1.0 percent of the total monthly payroll into the fund.   

         34(1) The Board shall assess employers for such sums in such manner, form and procedure as the Board may, from time to time determine for the due administration of this Act. 

                       (2) Assessments shall in the first instance, be based upon estimates:     

              (a) of the employer’s payroll for the year provided under Section 41 of this Act; or

              (b) as determined by the Board under Sections 43 of this Act.                 

                       (3) The Board may, by order, establish a minimum assessment:

              36(1) The Board shall have a cause of action for any unpaid assessment and shall be entitled to the cost of any action to recover the unpaid assessment.

              (2) If, for any reason, an employer liable to assessment is not assessed by the Board, the employer shall be liable for the amount for which the employer should have been assessed, or as much as the Board considers reasonable, and payment of that amount may be enforced as if the employer had been assessed for that amount.

       39(1) “Every Employ shall

              (a) keep at all times at same place in Nigeria, the location and address of which the employer has given notice to the Board, complete and accurate particulars of the employer’s payroll”.                                         

                       (b) cause to be furnished to the Board:                                     

              (i)  when the employer becomes an employer within the scope of this Act, and               

              (ii) at other times as required by any regulation made by the Board of general application or any decision of the Board limited to a specific employer, an estimate of the probable amount of the payroll of each of the employer’s industries within the scope of this Act, together with any further information required by the Board; and                                                 

              (iii) provide signed copies of the employer’s payrolls, not later than the 31st December in each year or at such other times and in the manner required by the Board”. 

              (2)  Where the employer fails to comply with sub-section (1) of this section, the employer is liable to pay as a penalty for the default, a percentage of the assessment prescribed by regulations or determined by the Board, and the Board may make its own estimate of the payrolls assess and levy on that estimate, and the employer is bound by it.

              (3) In computing the amount of the payroll for the purpose of assessment regard shall be had only to that portion of the payroll that represents workers and employment within the scope of this Act.

              (4) If an employer does not comply with sub-section (1) of this section or if a statement made in pursuance of its requirements is not time and accurate, the employer for every failure to comply and for every such statement shall be liable to imprisonment for a term not exceeding one year or fine of not less than ?100,000 or to both imprisonment and fine for an individual or a fine of not less than ?1,000,000 for a body corporate and in addition, each director, manager or officer of the body corporate shall be liable on conviction to imprisonment for a term not exceeding one year or a fine of ?100,000 or to both such imprisonment and fine.        

       40(1) Every employer shall, not later than the last day of February in each year or at such other time as may be required by the Board, provide in a manner to be determined by the Board, a statement.

              (a) of the total amount of all earnings paid to its employees on the preceding year.

              (b) estimating the earnings that will be paid to its employees in the current year or any part of it as directed by the Board.                                  (2) If the statement is found to be incorrect, the Board shall reassess the employer for each year that the statement was incorrectly made and may charge the employer interest, at a rate determined by the decision of the Board, on any assessment that was not paid.

              (5) Unless satisfactory evidence of an employer’s actual payroll for any period is provided to the Board, the payroll estimated by the Board under this Section or under Section 40 (1) shall be deemed to be the actual payroll of the employer.

              53(1) Any person authorized by the Board may examine the books and accounts of any employer as the Board deems necessary for administering this Act.                                                                                               (2) For the purposes related to the administration of this Act, any person authorizes by the Board may at all reasonable hours, enter any past of the establishment of any employer or person who may be an employer.

              (3) An employer shall produce, within 30days of receiving notice, all documents, deeds papers and computer records which are in the possession, custody or power of the employer that relate to the subject matter of an examination under this section.

              (4) For the purposes of an examination or inquiry under this Section, the Board or any person authorized by it, shall have all the power of a Board of inquiry appointed under this Act.

              (5) Every person authorized by the Board to make an examination under this section may require and take a statement respecting the subject matter of an examination under this section.           

              (6) An employer or other person who obstructs or hinder the making of an examination under this section or who refuses to permit it to be made or who neglects or refuses to produce such documents, writings, books, deeds and papers or make statement required in the notice under this section, commits an offence.

              (7) In this section, an employer includes a person who the Board considers to be an employer or a principal.

                        54 ‘An officer of the Board may for the purposes of carrying out his or her duties under this Act and any regulation made there under or pursuant to any enactment or law-

                        (a) enter in any workplace at any time with or without warrant or notice,

                        (b) require the production of any licence, document, record or report inspect and examine a copy of the same,

                        (c) remove any licence, document, record or report, inspected or examined for the purpose of making copies or extracts and upon making such copies or extracts, shall promptly return same to the person who produced or furnished them;

                        (d) in any inspection, examination or inquiry shall be accompanied and assisted by a police officer or other persons having special expert or professional knowledge of any matter in respect of which inspection is been earned out.

                        (e) make enquires of any person who is or was in a workplace either separate or in the presence of any other person who may be relevant to an inspection, examination or inquiry.          

                        (f) require that records or documents in a workplace or part thereof may not be distributed for a reasonable period of time for the purpose of carrying out an examination, investigation or inquiry and    

                        (g) the report arising out of any enquiry, inspection or examination shall be the property of the Board and shall be held in confidence.

              73 In this Act-                                                                                                 “Employer” includes any individual, body, corporate, Federal, State or Local Government or any of the Government agencies who has entered into a contract of employment to employ any other person as an employee or apprentices.

 

SUBMISSION OF THE DEFENDANT

  1. The defendant raised two issues for determination
  2. Whether the alleged defendant on record, not being a legal or juristic person is an “employer” capable of entering into a contract of employment within the context of section 73 of the Employees Compensation Act 2010.
  3. Whether in view of the deposition in the alleged defendant’s counter affidavit, the suit ought to be converted from originating summons to complaints.

 

  1. The defendant counsel submitted that the defendant is not a legal person or a juristic person or a body corporate. The defendant counsel submitted that section 73 of the Employees Compensation Act 2010 defines “Employer to include any individual, body corporate, Federal, State or Local Government or any of the Government agencies who has entered into a contract of employment to employ any other person as an employee or an apprentice.” The defendant counsel submitted that the defendant is non of the above definition of employer. The defendant counsel submitted that the claimant’s representatives abandoned their mission and sought for their personal gratification which warranted them to bring this suit. The defendant counsel submitted that there is no dispute, issues or conflict which has arisen between the claimant and the defendant to warrant the bringing of this suit; that the suit ought to be converted from originating summons to complaint. 

 

CLAIMANT’S REPLY TO THE DEFENDANT’S COUNTER AFFIDAVIT

  1. The claimant raised three (3) issues for determination.
  2. Whether the defendant is an employer within the provisions of Employees Compensation Act (ECA) 2010.
  3. Whether the mistake in the name of the defendant is a mere misnomer and curable.
  4. Whether the action sought ought to have been commenced by an originating summons instead of complaint.

 

  1. ISSUE 1: whether the defendant is an employer within the provisions of the Employees Compensation Act (ECA) 2010. The claimant’s counsel submitted that “Employee” as also defined in section 73 of the Employees Compensation Act 2010 means a “person employed by an employer under oral or written contract of employment whether on a continuos, part time, temporary, apprenticeship or casual basis and, includes a domestic servant who is not a member of the family of the employer.” The claimant’s counsel submitted that from paragraphs 6 and 7 of the defendant’s counter affidavit and the provisions of section 73 of the Employees Compensation Act 2010, the defendant is an employer and the doctors, nurses and other staff of the defendant are employees within the provision of the Employees Compensation Act 2010.

 

  1. Issue 2 is whether the mistake in the name of the defendant is a mere misnomer and curable. The claimant’s counsel submitted that in Guaranty Trust Bank Plc v. Pico Projects Services Ltd (2023) LPELR-60886 (CA) the Court of Appeal citing the Supreme Court stated that it is a curable misnomer where both parties are familiar with the identity of the person suing or being sued. The claimant’s counsel further submitted that the Supreme Court in Calabar Municipal Govt & ors v. Honesty & ors (2021) LPELR-58391 gave a comprehensive exposition on misnomer thus:

“misnomer occurs where the appropriate party is brought to Court but the processes reflect wrong name of the appropriate party” 

The claimant’s counsel submitted that paragraph 6 of the defendant’s counter affidavit leaves no doubt as to who is the correct person, who is the defendant in this suit. Thus, the wrong name is a curable misnomer which in any case was caused by the defendant. The claimant’s counsel referred the Court to Exhibit NSITF6 which shows the name used by the defendant on his sign post at his place of business. Claimant’s counsel also submitted that a party cannot be allowed to benefit from his own wrong. See Sale Ado Abdullahi v. Yusha’u Ibrahim & ors (2023) LPELR-59984.

 

  1. Issue 3 is whether the action ought to have been commenced by an originating summons instead of complaint. The claimant’s counsel submitted that it is trite law that the proper mode of commencing an action for the interpretation or construction of a statute and where the facts are not in dispute, is by way of originating summons. See Dapian Long v. Dariye (2007) 8 MJSC 140; (2007) 4 SC (Pt 111). The claimant’s counsel went on that the reliefs sought borders on the interpretation of sections of the Employees Compensation Act, 2010. The claimant counsel submitted that the defendant admitted this by virtue of paragraph 5 of his counter affidavit in which he asserts that the definition of an employer vide the provisions of the Employees Compensation Act does not apply to him. The claimant’s counsel also submitted that the defendant’s admission in paragraph 12 of his counter affidavit concedes that there is no dispute of facts between him and the claimant wherein he averred that he did not refuse to remit, and has no issue or any dispute over the remittance or non-remittance of any contribution of 1% of gross payroll to NSITF. The claimant’s counsel prays the Court to grant the reliefs of the claimant.

            

 COURT’S DECISION

  1. I have given due consider to all the processes and submissions of the parties. By Section 131 of the Evidence Act, in civil cases, the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove. The standard of proof required is on a preponderance of evidence and balance of probabilities. See Longe v. FBN Plc (2006) 3 NWLR (Pt 967) 228. In civil cases, the onus of proving an allegation is on the claimant. A party must prove its case on credible evidence and is not at liberty in law to make a case or rely on the weakness of its opposite party in order to succeed. See Iman v. Sheriff (2005) 4 NWLR (Pt. 914) 80.

     

  1. By section 73 of the Employees Compensation Act:

“Employer includes any Individual, body corporate, Federal, State or Local Government or any of the Government agencies who has entered into a contract of employment to employ any other person as an employee or apprentice.”

“Employee” means a person employed by an employer under oral or written contract of employment whether on a continuous, part time, temporary, apprenticeship or casual basis and includes a domestic servant who is not a member of the family of the employer including any person employed in the Federal, State and Local Government and in the formal and informal sectors of the economy.

By the definitions above, it is clear the defendant is an employer as it has people working for it like Doctors, Nurses and Administrative Staff. The issue of whether it is a part-time job or continuous job does not stop the defendant from being an employer. The issue of part-time is also included in the definition of employee. The defendant has a premises where it is situated as a hospital with the sign post Holy Rosary Hospital and Maternity, Waterside, Onitsha as shown in Exhibit NSTIFMB6. On the face of it the defendant is an employer it beholds on the defendant to prove otherwise and I so hold.

 

  1. Furthermore, originating summons is used for non-contentious actions that is, those actions where facts are not likely to be in dispute. It is trite that proper mode of commencing an action for the interpretation or construction of statute and where the facts are not in dispute is by way of originating summons. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 SC. See also Dapian Long v. Dariye (2007) 8 MJSC 140. The reliefs on the instant suit borders on the interpretation of the sections of the Employees Compensation Act, 2010. The defendant also admitted by virtue of paragraph 5 of his counter affidavit where he averred that the definition of an employer vide the provisions of the Employees Compensation Act, 2010 does not apply to him. The defendant also in paragraph 12 of his counter affidavit averred that there is no dispute between him and the claimant. These qualified the commencement of this action by an originating summons and I so hold. The issue of the name of the defendant being a misnomer or not has been decided in the ruling of this Court delivered on July 23, 2024 where the Court held that it is a misnomer. The Court need not dwell on it again.

 

  1. The defendant did not deny that the claimant served him with Exhibit NSITFMB1, NSITFMB2, NSITFMB3, NSITFMB4 and NSITFMB5. The defendant further in paragraph 12 of its counter affidavit averred that the defendant did not refuse to remit and has no issue or any dispute over the remittance or non-remittance of any contribution of 1% of gross payroll to the NSTIF. It then shows that the defendant admitted being served with the notices and further stated its readiness to remit 1% of the gross payroll to the NSTIF. Thus, it is trite that where evidence given by a party is unchallenged and uncontroverted, a Court of law must accept it and act on it unless it is palpably incredible. See MTN Nigeria Communication Limited v. Aqua Culture Co-operative Farmers Society Limited (2014) 40 WRN 123. The claimant has proved his case on balance of probabilities. The burden has now shifted to the defendant whom did not lead any evidence to prove his case. The law is that fact admitted need no further proof. Section 123 of the Evidence Act, 2011. See also Bank of Agriculture Ltd v. Iyama P. Goldy (2021) 27 LRN, 88.

 

  1. Reliefs (a) and (b) are declaratory reliefs wherein the defendant is obligated by the Employee’s Compensation Act 2010 to make a minimum monthly contribution of 1.0 percent of defendant’s total monthly payroll from July 2011 up to date and thereafter into the Employees Compensation Fund managed by the claimant and that the defendant is obliged to cause to be furnished to the claimant complete and accurate particulars of the defendant’s total monthly payroll from July 2011 up to date and thereafter. In proof of these reliefs the claimant averred in his affidavit in support of the originating summons particularly paragraphs 6, 7 and 8. Thus Section 73 of the Employees Compensation Act provides –

“Employer includes any Individual, body corporate, Federal, State or Local Government or any of the Government agencies who has entered into a contract of employment to employ other person as an employee or apprentice.”

The claimant stated in paragraph 4 of his affidavit that the defendant “operates the business of a Hospital with employees it pays on a monthly basis at Waterside, Mission Road, Onitsha, Anambra State.” The defendant hereby qualifies as an Employer by the Act and I so hold. Furthermore, Section 33 (1) of the Employees Compensation Act 2010 provides thus:

“Every employer, shall within the first two years of the commencement of this Act make a minimum monthly contribution of 1.0 percent of the total monthly payroll into the fund”.

The word “shall” in this law is mandatory. This payment is for the compensation of employees who suffer from occupational disease or sustain injuries arising from accidents at workplace or in the course of employment.      The defendant failed to do so even though this Act and its provisions were introduced to her through Exhibits NSITFMB1 and NSITFMB2 which also showed receipt of the documents. The claimant by this have proved reliefs (a) and (b) and I hold that they are grantable.

 

  1. Relief (c) and (d) pray the Court for an order compelling the defendant to keep, at all times, with the claimant, complete and accurate particulars of the defendant’s payrolls from July 2011 up to date and thereafter and an order compelling the defendant to compute/calculate and make a minimum monthly contribution of 1.0 percent of the total monthly payroll off the defendant from July 2011 up to date and thereafter into the Employees’ Compensation Fund managed by the claimant.

 

  1. Section 39 (1) (a) of the Act provides:

“Every Employer shall keep at all times at some place in Nigeria, the location and address of which the employer has given notice to the Board complete and accurate particulars of the employer’s payrolls.”       

By Section 40 of the Act, the defendant is to compute/calculate and make a minimum monthly contribution of 1.0 percent of the total monthly payroll of the defendant from July 2018 up to date and thereafter. All those are provisions of Employee Compensation Act 2010 which the defendant mandatorily ought to have done. It is clear and evident as averred by the claimant that the defendant acknowledged through its staff Ifekauche Emmanuel of receipt of Exhibits NSITFMB1 and Okanume Udechukwu NSIFMB2. In paragraph 4 of the affidavit the claimant averred the defendant operates the business of a Hospital with employees, it pays on a monthly basis at Waterside, Misssion Road, Onitsha, Anambra State. The claimant went on in paragraph 5 of the affidavit that the defendant has been operating the said business with persons under a contract of employment such as Doctors, Nurses, Labouratory Attendants, Cleaners and Administrative staff. The claimant in paragraph 6 of the deposition averred that it introduced the Employees’ Compensation Scheme (ESC) to the defendant and enjoined the defendant to key into the scheme as required by the Employees’ Compensation Act 2010 for the benefit of its employees. Which the defendant did not chalnge. It is trite that evidence unchallenged is deemed admitted. See Joshua v. State (2019) 12 NWLR (Pt. 1685) 131 (A) 145 Paragraphs C-E. Reliefs (c) and (d) are hereby granted and I so hold.

 

  1. Relief (e) prays for an order granting entry to officers of the claimant into the workplace of the defendant situate at Waterside, Mission Road, Onitsha, Anambra State for purposes of inspecting and examining the defendant’s payrolls and other documents necessary for assessment of defendant’s minimum monthly contribution of 1.0 percent of the total monthly payroll from Julty 2011 up to date and thereafter. Section 53 of the Employees Compensation Act provides thus: 
  2. Any person authorized by the Board may examine the books and accounts of any employer as the Board deems necessary for administering this Act.

Section 54 of the Employees Compensation Act provides thus:

An officer of the Board may, for the purposes of carrying out his or her duties under this Act and any regulation made there under or pursuant to any enactment or law-

(a) enter in any workplace at any time with or without warrant or notice.

(b) require the production of any licence, document, record or report, inspect and examine a copy of the same;

The claimant has powers under Section 53 and 54 of Employees Compensation Act 2010 to enter in any workplace at any time to carry out its duty.        Relief (e) is granted and I so hold.

 

  1. Relief (e) and (f) are similar and the law is very clear on that. I will repeat Section 54 of the Act for emphasis.

“An officer of the Board may also enter in any workplace at any time with or without warrant or notice; The officers can require the production of any licence document record or report, inspect and examine a copy of the same; In any inspection, examination or inquiry, shall be accompanied and assisted by a police officer or other person or persons having special expert or professional knowledge of any matter in respect of which inspection is being carried out …”

It is clear that the claimant is empowered to ensure compliance with the provisions of Employment Compensation Act 2010. I so hold. Relief (f) is granted

 

  1. Relief (g) is for an order of Court directing the defendant to pay into the Employee’s Compensation Fund 40% of the total monthly payroll from July 2011 up to date as penalty for default in failing to cause to be furnished to the claimant complete and accurate total monthly payroll from July 2011 up to date and for failure to make minimum monthly contribution of 1.0 percent of the total monthly payroll from July 2011 up to date into the Employees Compensation Fund Managed by the claimant Section 39 (4) of the Employee’s Compensation Act 2010 provides that where the defendant does not furnish complete and accurate particulars of the defendant’s payroll to the claimant, or if the particular of the payroll are not true and accurate, whether the defendant for every failure to comply and for every such particulars of the payroll shall be liable to imprisonment or fine or both imprisonment and fine. Relief 7 is refused as the present suit is seeking the recovery of outstanding arrears of statutory contribution to the Employees Compensation Fund owed as debt by the defendant and not enforcement of penalties for noncompliance under the Act.

 

  1. Relief (h) is for an order directing the defendant to pay into the Employees Compensation Fund 10% interest on the defendant’s total monthly payroll from July 2011 up to date. Order 47 Rule 7 of the NICN Rules 2017 empowers the Court to make an order or give direction as to the period within which payment is to be made or other act is to be performed and may order interest at a rate not less than 10% per annum to be paid upon any judgment. Relief (h) is granted and I so hold.

 

  1. Relief (i) is for an order directing the payment of the sum of Five Million Naira (?5,000, 000.00) only as cost of the action.

 

  1. There is no proof for Relief (i).  The Court cannot act in vacuum. There is n receipt of payment shown to the Court that five million naira (N5,000,000) was paid ass cost of the action. It is trite that relief not proved is deemed abandoned. Relief (i) accordingly fails and is hereby dismissed.

 

  1. This suit is an originating summons and the evidence adduced here is an affidavit evidence. There is no place in the affidavit in support that the claimant laid evidence nor pleaded severally the special damages sought. The claimant merely prayed for the order and never laid evidence to that order. The Court is of the view that such prayer is deemed abandoned. Relief (i) accordingly fails and is dismissed.

 

  1. In all, the claimant/applicant’s case succeeds in part in terms of the following declarations and orders:
    1. It is hereby declared that the defendant is an employer within the context and meaning of the Employees’ Compensation Act 2010 and by so being, obligated to make a minimum monthly contribution of 1.0 percent of defendant’s total monthly payroll from July, 2011 up to date and thereafter into the Employees Compensation Fund Managed by the claimant.
    2. It is hereby declared that the defendant being an employer within the context and meaning of the Employees’ Compensation Act 2010 is obligated to cause to be furnished to the claimant complete and accurate particulars of the defendant’s total monthly payroll from July, 2011 up to date and thereafter.
    3. The defendant is compelled to keep, at all times, with the claimant, complete and accurate particulars of the defendant’s payrolls from July, 2011 up to date and thereafter.
    4. The defendant is compelled to compute/calculate and make a minimum monthly contribution of 1.0 percent of the total monthly payroll of the defendant from July, 2011 up to date and thereafter into the Employees Compensation Fund managed by the claimant. 
    5. The officers of the claimant are hereby granted entry into the workplace of the defendant situate at Waterside, Mission Road, Onitsha, Anambra State for purposes of inspecting and examining the defendant’s minimum monthly contribution of 1.0 percent of the total monthly payroll from July, 2011 up to date and thereafter.
    6. The defendant is compelled to grant officers of the claimant access to the defendant’s total monthly payroll from July, 2011 up to date and thereafter for purposes of assessing the defendant of the minimum monthly contribution of 1.0 percent of the total monthly payroll from July, 2011 up to date and thereafter.
    7. The defendant is directed to pay into the Employees Compensation Fund 10% interest on the defendant’s total monthly payroll from July, 2011 up to date.

 

  1. Judgment is entered accordingly. I make no order as to cost.

 

 

Hon. Justice J.I. Targema, PhD.