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/36/2024

 

BETWEEN
Nigeria Social Insurance Trust Fund

Management Board  - Claimant/Applicant

 

AND
Divine Rays British School Limited             -          Defendant/Respondent

 

REPRESENTATION

Adaeze Mbakwe, Esq. for the Claimant/Applicant.

E.S. Ejimofor, Esq. for the Defendant/Respondent.

 

 

JUDGMENT

INTRODUCTION

  1. This matter was commenced by way of Originating Summons dated and filed on the 23rd day of July 2024, brought pursuant to Order 2 Rule 1 and Order 3 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, and under the inherent jurisdiction of this Honourable Court. The application seeks the interpretation and determination of several provisions of the Employees’ Compensation Act, 2010 (hereinafter referred to as “the Act”), specifically Sections 2(1); 32(1)(a)-(c); 33(1); 34(1)-(3); 36(1)-(2); 39(1)-(4); 40(1)-(5); 53(1)-(7); 54(a)-(g); and 73 thereof.

 

  1. The Originating Summons is supported by an 18-paragraph affidavit deposed to by Okeke Ugomma, a Senior Manager in the Claimant’s Onitsha Branch Office, together with a written address wherein the Claimant’s Counsel canvassed arguments in support of the reliefs sought.  The Claimant/Applicant submitted the following Questions for Determination before this Honourable Court:
  2. Considering the extant provisions of Sections 33 (1); 39 (1) (a) and (b) (i) (ii) (iii); 40 (1) (a) (b), and 73 of the Employees' Compensation Act, 2010, whether the Defendant is an employer within the context and meaning of the Employees' Compensation Act, 2010 and by virtue of that fact, obligated to make a minimum monthly contribution of 1.0 percent of its total monthly payroll into the Employees’ Compensation Fund established under the Act and managed by the Claimant?
  3. If the answer to Question 1 above is in the affirmative, does the Defendant have an option whether or not to cause to be furnished to the Claimant an estimate of the probable amount of its payroll, and whether or not to make a minimum monthly contribution of 1.0 percent of its total monthly payroll into the Employees’ Compensation Fund managed by the Claimant?
  4. Having regard to the provisions of Section 39 (2) of the Employees’ Compensation Act, 2010, where the Defendant fails to cause to be furnished to the Claimant an estimate of the probable amount of the Defendant’s payroll, whether the Claimant may make its own estimate of the payrolls, assess and levy on that estimate and whether the Defendant is liable to pay the said estimate as a penalty for the default?
  5. If an employer within the context and meaning of the Employees’ Compensation Act, 2010, and considering the provisions of Section 39 (4) of the Employees’ Compensation Act, 2010, where the Defendant does not furnish complete and accurate particulars of the Defendant’s payroll to the Claimant, or if the particulars 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, jointly and severally?
  6. Having regard to the combined provisions of Sections 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 whether an officer of the Claimant or any person authorized thereby, at any time and at all reasonable hours, can enter the Defendant’s workplace with or without warrant or notice and require the production of the Defendant’s payrolls and account records for inspection or examination of same with a view to ascertaining the correctness of the Defendant’s payroll and assessing same?
  7. If the questions above are resolved in favour of the Claimant, what order or orders is/are appropriate or deemed fit and necessary to make in the circumstance so as to give effect to the provisions of the Law?
  8. Whether, having regard to the combined provisions of Sections 33 (1) and 39 (1) of the Employees’ Compensation Act, 2010 the Claimant is entitled to be furnished with the estimates of the probable amount of the Defendant’s payroll from its incorporation in May 2017 after the ECA 2010 had come into operation up to Date, and is entitled to 1.0 percent of Defendant’s total monthly payroll from May 2017, up to Date?

 

  1. Upon the consideration of the above questions, the Claimant/Applicant seeks the following Reliefs from this Honourable Court:
    1. 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 May 2017 up to date and thereafter into the Employees' Compensation Fund managed by the Claimant.
    2. 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 May 2017 up to date and thereafter.
    3. AN ORDER compelling the Defendant to keep, at all times, with the Claimant, complete and accurate particulars of the Defendant's payrolls from May 2017 up to date and thereafter.
    4. 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 May 2017 up to date and thereafter into the Employees' Compensation Fund managed by the Claimant.
    5. AN ORDER granting entry to officers of the Claimant into the workplace of the Defendant situate at 5 Mike Ajaeobo Street, Obosi, 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 May 2017 up to date and thereafter.
    6. AN ORDER compelling the Defendant to grant officers of the Claimant access to the Defendant's total monthly payroll from May 2017 up to date for purposes of assessing the Defendant of the minimum monthly contribution of 1.0 percent of the total monthly payroll from May 2017 up to date and thereafter.
    7. AN ORDER directing the Defendant to pay into the Employees' Compensation Fund 40% of the amount estimated as the total monthly payroll from May 2017 up to Date as penalty for default in failing to cause to be furnished to the Claimant complete and accurate total monthly payroll from May 2017 up to Date, and for failure to make minimum monthly contribution of 1.0 percent of the total monthly payroll from May 2017 up to Date into the Employees' Compensation Fund managed by the Claimant.
    8. AN ORDER directing the Defendant to pay into the Employees' Compensation Fund 10% interest on the amount estimated as the Defendant's total monthly payroll from May 2017 up to Date.
    9. The sum of Two Million (N2,000,000.00) only in general damages.

 

  1. The Originating Summons is supported by an 18-paragraph affidavit deposed to by one Okeke Ugomma, a Senior Manager and Compliance Officer in the Onitsha Branch of the Claimant, together with five (5) documentary exhibits marked Exhibits NSITFMB 1–5, and a written address wherein the Claimant formulated four questions for determination. The Defendant, upon being served, filed a 28-paragraph Amended Counter-Affidavit deposed to by Mrs. Ifeoma Ucheama, a staff of the Defendant, together with a written address in opposition. The Defendant also raised objections touching on the jurisdiction of this Court, the competence of the action, and the applicability of the Employees’ Compensation Act to its operations.  The Claimant filed a Further Affidavit and Reply on Points of Law in response, together with additional exhibits tendered in rebuttal, including the “New Registration Breakdown List for 2024/2025 Academic Session” and correspondence from the NSITF Onitsha Branch (Exhibit NSITFMB 8).

 

FACTS IN SUPPORT OF THE ORIGINATING SUMMONS

  1. The Claimant’s case, as disclosed in the affidavit in support deposed to by Okeke Ugomma, a Senior Manager and Compliance Officer in the Onitsha Branch of the Claimant, is that the Defendant operates a private school business under the name Divine Rays British School Limited, incorporated on the 22nd of May, 2017, with its business address at No. 5 Mike Ajaegbo Street, Obosi, Anambra State, and has since its incorporation engaged several employees including teachers and administrative staff. The deponent averred that the Claimant, in line with its statutory mandate under the Employees’ Compensation Act, 2010, introduced the Employees’ Compensation Scheme (ECS) to the Defendant through a letter dated 16th January, 2024   and followed up with a Notice/Request for Registration dated 6th February, 2024 , as well as a Reminder Notice dated 28th February, 2024, all urging the Defendant to comply with the statutory provisions by registering with the scheme and remitting its mandatory contributions. The Claimant further served a Notice of Statutory Assessment of Salary/Wages Record dated 16th April, 2024 and subsequently issued a Pre-Legal Action Notice dated 30th April, 2024, all of which were duly served on the Defendant through registered courier service. Despite all these correspondences, the Defendant allegedly failed, refused, and neglected to: furnish the Claimant with its complete and accurate payroll from May 2017 to date; allow the Claimant or its officers access to its workplace for payroll inspection and assessment; and remit the statutory 1% monthly contribution to the Employees’ Compensation Fund. It was further deposed that the Defendant’s continuous refusal to comply has gravely impacted the Claimant’s statutory mandate to provide fair and adequate compensation for employees who suffer work-related injuries, diseases, or death. The deponent concluded that the Defendant’s conduct constitutes a breach of its statutory obligations under the Employees’ Compensation Act, 2010, and urged the Court to grant all the reliefs sought.

 

ARGUMENTS OF THE CLAIMANT

  1. Learned Counsel for the Claimant, in the written address in support of the Originating Summons, submitted that the four issues for determination are interrelated and were accordingly argued together.

 

  1. Counsel began by referring the Court to the preamble and provisions of the Employees’ Compensation Act, 2010 (ECA), particularly Sections 33(1), 39, 40, 53, and 54, which impose clear statutory obligations on every employer to make a minimum monthly contribution of 1% of its total monthly payroll to the Employees’ Compensation Fund (ECF) managed by the Claimant, the Nigeria Social Insurance Trust Fund Management Board.

 

  1. It was submitted that the Defendant, having been duly incorporated and employing teachers and administrative staff, falls squarely within the definition of an employer as provided under Section 73 of the ECA, 2010. Counsel argued that the existence of an employment relationship, the payment of salaries, and the Defendant’s continuous business operations since 2017 clearly bring it within the statutory purview of the Act.

 

  1. Learned Counsel referred the Court to Section 33(1) of the ECA, which provides that every employer shall, within the first two years of the commencement of the Act and thereafter, make a minimum monthly contribution of 1% of the total monthly payroll of the employer into the Fund. The Claimant contended that the Defendant’s failure, since its incorporation in 2017, to register, furnish its payroll, and make such contributions, constitutes a continuing statutory breach actionable under Sections 34 and 36 of the Act.

 

  1. Counsel further relied on Section 39(1) of the Act, which mandates employers to furnish to the Claimant accurate information on payrolls and such further particulars as may be required. Where an employer fails or refuses to do so, Section 39(2) empowers the Claimant to make its own estimate of the payroll and assess the contributions due, which assessment is binding on the employer. It was argued that the Claimant, having introduced the scheme to the Defendant through letters dated 16th January, 6th February, 28th February, and 16th April 2024 (Exhibits NSITFMB 1–4), and a Pre-Legal Action Notice dated 30th April 2024, has fully complied with all statutory and procedural requirements before instituting this action. The Defendant’s persistent failure and refusal to comply, counsel maintained, amounts to willful default under Section 39(4) of the Act, which prescribes penalties including fine or imprisonment.

 

  1.  Learned Counsel submitted further that by virtue of Sections 53(1)–(7) and 54(a)–(g) of the ECA, officers of the Claimant are entitled, at any reasonable hour, with or without warrant, to enter the Defendant’s workplace to inspect payrolls and employment records for the purpose of ensuring compliance and assessing contributions. The Defendant’s refusal to allow such inspection therefore contravenes the express provisions of the law. Counsel argued that the cause of action in this suit arose from the Defendant’s continued refusal and neglect to comply with its statutory obligation to register and contribute to the Employees’ Compensation Fund. Relying on Sections 34(1)–(3) and 36(1)–(2) of the ECA, counsel submitted that the Claimant is empowered to take enforcement action and recover unpaid assessments from defaulting employers.

 

  1. On the competence of the suit and jurisdiction of the Court, learned counsel argued that this Honourable Court, being the National Industrial Court of Nigeria, has exclusive jurisdiction under Section 254C(1)(a), (b), (g), and (m) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to entertain matters connected with employment, labour, and the operation of the Employees’ Compensation Act.

 

  1. Counsel further submitted that the Defendant will suffer no prejudice if the reliefs sought are granted, as compliance with the Act is both mandatory and beneficial to its employees, providing insurance cover for injury, disease, disability, or death in the course of employment. In conclusion, counsel urged the Court to resolve all the issues in favour of the Claimant and grant all the reliefs sought in the Originating Summons, including an order directing the Defendant to furnish its payroll records from May 2017 to date and pay to the Claimant the statutory 1% monthly contribution to the Employees’ Compensation Fund, together with costs of this action.

 

THE DEFENDANT’S CASE AND WRITTEN ADDRESS

  1. The Defendant, in its response to the Claimant’s action, contended that the suit is incompetent, premature, and statute-barred, urging the Court to strike it out or dismiss same for want of jurisdiction. It was the Defendant’s position that it is a missionary school under the Roman Catholic Archdiocese of Onitsha, established purely as a charitable and faith-based institution for the propagation of religion and education, and not as a commercial enterprise. The Defendant therefore maintained that it does not qualify as an “employer” within the meaning of the Employees’ Compensation Act (ECA), 2010, and is consequently not subject to its provisions. The Defendant averred that it neither maintains a payroll nor employs staff in the conventional sense. According to it, teachers and administrative personnel in its school are engaged and remunerated by the Parents-Teachers Association (PTA), while corps members posted to the school receive their allowances directly from the Federal Government. On this basis, the Defendant contended that it has no employment relationship with any of the individuals referred to by the Claimant and bears no statutory obligation to contribute to the Employees’ Compensation Fund. The Defendant further denied receiving any valid pre-action notice or letter of demand from the Claimant, asserting that all documents allegedly served upon it were fabricated or doctored, with no proper acknowledgment of receipt. It was its contention that the Claimant suppressed material facts and failed to comply with procedural requirements precedent to instituting this action. The Defendant alleged that whatever communications or visits made by the Claimant’s agents amounted to a contrived attempt to justify this suit, which was filed in violation of the enabling law.

 

  1. In the written address settled by learned counsel for the Defendant, one issue was formulated for determination, to wit:

“Whether, in the circumstances of this case, the Claimant is entitled to the reliefs it seeks as contained in the Originating Summons.”

 

  1. In arguing this issue, learned counsel submitted that, by virtue of Section 73 of the Employees’ Compensation Act, 2010, and the decision of the Court of Appeal in FCDA v. The Governing Council of the National Industrial Training Fund (2009) LPELR-8148 (CA), the Defendant cannot be regarded as an “employer” under the Act and therefore bears no liability to the Claimant.

 

  1. Counsel further argued that this action is incompetent, statute-barred, and constitutes an abuse of court process. It was submitted that the Claimant failed to comply with the mandatory conditions precedent prescribed under Sections 55(4) and 68(3) of the ECA, which require that any dispute arising from the operation of the Act be first referred to the Nigeria Social Insurance Trust Fund (NSITF) Management Board for review or arbitration before recourse is made to the Court. It was contended that the National Industrial Court may only exercise appellate jurisdiction after those statutory procedures have been exhausted.

 

  1. Learned counsel further submitted that the suit is statute-barred, relying on Section 25 of the Nigeria Social Insurance Trust Fund Act, which prescribes a limitation period of twelve (12) months for instituting such actions. He pointed out that, according to the Claimant’s own affidavit, the alleged cause of action arose in May 2017, whereas the present action was not instituted until 2024 — well beyond the statutory period. Citing Chigbu v. Tonimas (Nig.) Ltd (2006) 9 NWLR (Pt. 984) 189 and Mbu v. Stanbic IBTC Bank Plc (2016) 12 NWLR (Pt. 1527) 397, counsel argued that once a matter is filed outside the limitation period, the right of action is extinguished and the Court lacks jurisdiction to entertain it.

 

  1. It was further contended that the Claimant’s reliance on the Employees’ Compensation Act is misconceived, as Section 71 of the Act already prescribes criminal sanctions for non-compliance, thereby excluding civil remedies of the nature sought. Counsel submitted that where the law has provided a specific penal consequence for non-compliance, a civil recovery action cannot be sustained.

 

  1. Counsel also maintained that the Claimant lacks the locus standi and legal capacity to institute this action in the manner it did, having failed to subject the dispute to the review or decision of the NSITF Board as required by law. Reliance was placed on Military Administrator, Ekiti State v. Aladeyelu (2007) All FWLR (Pt. 369) 1195, to the effect that once a suit is statute-barred or instituted in breach of statutory procedure, the proper order is one of dismissal. Finally, learned counsel argued that the Claimant’s affidavits were tainted by suppression of material facts, thereby depriving the Court of jurisdiction. He urged the Court to hold that the action was filed in bad faith and constitutes a gross abuse of judicial process designed to harass the Defendant, who was wrongly sued in the first place. In conclusion, the Defendant prayed the Court to uphold its preliminary objection and to strike out or dismiss the suit in its entirety for being incompetent, statute-barred, and instituted in violation of the conditions precedent to the exercise of the Court’s jurisdiction.

 

PRELIMINARY OBJECTION

  1. In response to the Originating Summons, the Defendant/Applicant filed a Notice of Preliminary Objection brought under the inherent jurisdiction of this Honourable Court, praying the Court for:
    1. An order striking out and/or dismissing this suit for being incompetent and statute-barred, having been caught by limitation of time under the applicable laws;
    2. And for such further or other orders as the Court may deem fit to make in the circumstances.

 

  1. The objection was supported by a 13 paragraph affidavit deposed to by Mrs. Ifeoma Ucheama, a staff of the Defendant, and a written address settled by P.S. Ejimofor, Esq., counsel to the Defendant. The grounds upon which the preliminary objection was brought are summarized as follows:
    1. That the action is statute-barred, having been commenced outside the 12-month limitation period prescribed under Section 25 of the Nigeria Social Insurance Trust Fund Act and contrary to Section 55(4) of the Employees’ Compensation Act, 2010.
    2. That the suit is in contravention of Section 71 of the Employees’ Compensation Act, 2010, which already criminalizes non-compliance and prescribes specific penalties, thereby precluding the Claimant from seeking parallel civil enforcement before this Court.
    3. That the Claimant cannot go outside the provisions of the enabling Act to seek other reliefs when the statute has already made comprehensive provisions for redress.
    4. That the Claimant’s right of action has been extinguished by effluxion of time, the cause of action having arisen in May 2017, while this action was commenced only in 2024, over seven (7) years after.
    5. That there are fundamental procedural irregularities and non-compliance with the conditions precedent to instituting this suit.
    6. That this Court lacks jurisdiction to hear and determine this matter as a court of first instance; jurisdiction lies instead as an appellate body from the decision of the Board of the NSITF in accordance with Sections 55(4) and 68(3) of the Employees’ Compensation Act, 2010.
    7. That there is no evidence that the Claimant complied with the requirement of submitting the dispute to arbitration or internal review before approaching this Court.
    8. That the Claimant lacks the legal capacity to institute this action without first obtaining a decision or review by the NSITF Board.
    9. That there was suppression of material facts in the Claimant’s affidavit in support of the Originating Summons.

 

  1. In the written address in support, learned counsel for the Defendant submitted that the Claimant’s suit is statute-barred by virtue of Section 25 of the NSITF Act, which stipulates that any action against the Fund or in relation to its operations must be commenced within twelve (12) months from the accrual of the cause of action. Counsel relied on the decisions in Chigbu v. Tonimas Nig. Ltd (2006) 9 NWLR (Pt. 984) 189 and Mbu v. Stanbic IBTC Bank Plc (2016) 12 NWLR (Pt. 1527) 397, to argue that once a cause of action is statute-barred, the claimant loses the right to enforce it and the Court consequently loses jurisdiction to entertain it.

 

  1. It was further argued that under Section 71 of the Employees’ Compensation Act, the Act has prescribed punishment and penalties for defaulting employers, thereby criminalizing such breach. Counsel contended that the Claimant cannot seek civil remedies under the same statute where the legislature has already provided a penal sanction.

 

  1. Learned counsel submitted that the statute of limitation obviates the Claimant’s right to enforce the present cause of action and that the proper order to make is one of dismissal, citing Military Administrator, Ekiti State v. Aladeyelu (2007) All FWLR (Pt. 369) 1195. It was further the contention of counsel that the Claimant failed to comply with the conditions precedent to instituting this action as required by Sections 55(4) and 68(3) of the Employees’ Compensation Act, which mandate that disputes arising under the Act must first be referred to arbitration or review by the Board before recourse can be had to the Court. Counsel maintained that the jurisdiction of this Court under the said Act is appellate in nature, to review decisions arising from the NSITF Board and not to serve as a court of first instance.

 

  1. It was also argued that by the Claimant’s own showing, the alleged default dates back to May 2017, yet this action was commenced only in 2024, a period well beyond the statutory limitation, thereby extinguishing any enforceable right. Counsel submitted finally that the suppression of material facts by the Claimant, coupled with non-compliance with the enabling statute, renders the suit incompetent, and urged the Court to uphold the preliminary objection and dismiss or strike out the suit in the interest of justice.

 

COUNTER AFFIDAVIT TO THE PRELIMINARY OBJECTION

  1. In opposition, the Claimant/Respondent filed a Counter Affidavit and a Written Address, both dated and filed on the 5th of March 2025, urging the Court to dismiss the Preliminary Objection for lacking in merit. The Counter Affidavit was deposed to by Okeke Ugomma, a Senior Manager with the Nigeria Social Insurance Trust Fund, who averred inter alia as follows:

 

  1. The Defendant failed to comply with Order 9 Rules 1(3)-(4) of the Rules of this Court, having defaulted in paying the requisite penalties for late filing. The present suit seeks the recovery of outstanding statutory contributions to the Employees’ Compensation Fund, which is a civil debt, and not a prosecution of a criminal offence. Failure to pay such debt constitutes a civil wrong, not a criminal act. The suit does not contravene Section 25 of the Employees’ Compensation Act, 2010, and is not statute-barred. The enabling legislation under which the Claimant operates in this context is the Employees’ Compensation Act, 2010 (ECA), not the NSITF Act. That Sections 32(a–c), 33(1) and 36(1) of the ECA confer on the Claimant a cause of action to recover unpaid statutory contributions. The jurisdiction of this Honourable Court is properly invoked under Section 7 of the NIC Act, 2006 and Section 254C (1) of the 1999 Constitution (as amended). That Section 55(4) of the ECA relates to appeals against the Board’s decisions on payment of compensation, and has nothing to do with employer contributions. That the notices contemplated under Section 68(3) of the ECA refer to Occupational Safety and Health (OSH) awareness communications, an example of which was annexed as Exhibit NSITFMB 6. That the Claimant has continuously undertaken enforcement drives across Nigeria since the enactment of the ECA, and only discovered the Defendant’s non-compliance during its 2024 enforcement exercise in Onitsha. She concluded by urging the Court to dismiss the Preliminary Objection with substantial cost and to uphold the Claimant’s claims.

 

  1. In the written submission, learned counsel submitted the following issues for determination: 
    1. Whether the Defendant Counsel’s Written Address is competent, having failed, omitted, and neglected to formulate any issue for determination and set out his statement of argument in paragraphs numbered serially contrary to the Rules of Court?
    2. Whether this Honourable Court is seized with jurisdiction to entertain the matter considering the extant provisions of Section 55(4) of the Employees’ Compensation Act, 2010?
    3. Whether a cause of action for recovery of outstanding debt is a civil one and whether the Claimant has a cause of action and is entitled to the cost of any action to recover the outstanding arrears?
    4. Whether the action is statute barred?
    5. Whether the Claimant is entitled to the reliefs sought?

 

  1. On Issue one: The Claimant submits that the Defendant’s written address is fundamentally defective, having failed to comply with Order 17 Rule 1(7) of the National Industrial Court (Civil Procedure) Rules, 2017, which prescribes the content and format of a written address accompanying a motion on notice. It is contended that the Defendant’s Counsel failed to set out issues for determination and did not properly number paragraphs as required. Relying on Leonard Macfoy v. U.A.C. Ltd (1961) 3 WLR (PC) 1405, Counsel submitted that “you cannot put something on nothing and expect it to stand; it will collapse.” Accordingly, a motion whose written address does not contain issues for determination is incompetent and liable to be struck out.

 

  1. On Issue Two: Counsel for the Claimant submits that the National Industrial Court is constitutionally and statutorily vested with jurisdiction to entertain this suit by virtue of Section 7 of the National Industrial Court Act, 2006 and Section 254(C)(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). It was argued that the jurisdiction of this Court extends to all matters relating to labour, employment, industrial relations, and welfare of employees, which encompasses the Employees’ Compensation Scheme. Relying on Madukolu v. Nkemdilim (1962) 2 SCNLR 341, learned Counsel argued that the Court satisfies all three conditions necessary for the exercise of jurisdiction. On the contention that the Claimant failed to comply with a condition precedent by not resorting to arbitration, Counsel submitted that Section 55(4) of the Employees’ Compensation Act, 2010, relied upon by the Defendant, relates only to appeals against decisions of the Board on compensation claims by employees, and not to the recovery of employers’ contributions. Therefore, the section is inapplicable to the present action.

 

  1. On Issue three: It is the Claimant’s contention that its right of action flows directly from Section 36(1) of the Employees’ Compensation Act, 2010, which confers on the Board a statutory right to recover unpaid assessments together with the cost of such recovery actions. Counsel relied on Joseph Nwobasi v. Anayo Edwin & Ors (2023) LPELR-60005 (SC), where the Supreme Court defined a cause of action as “the entire set of circumstances giving rise to an enforceable claim.” It was submitted that the Defendant’s continuous refusal to remit its statutory 1% contribution since 2017 constitutes a recurring breach giving rise to a valid cause of action.

 

  1. Issue Four: The Claimant maintains that the action is not statute barred, as the relevant statute governing the relationship between the parties is the Employees’ Compensation Act, 2010, not the Nigeria Social Insurance Trust Fund Act, Cap N88, LFN 2004, which applies to pension matters. The Claimant submits that Sections 33 and 39 of the Employees’ Compensation Act, 2010 impose a continuing statutory obligation on employers to remit 1% of total payroll monthly. Each default constitutes a fresh cause of action. Reliance was placed on Abubakar Abdulrahman v. NNPC (2020) LPELR-55519 (SC) and Total E & P (Nig.) Ltd v. Umah & Ors (2019) LPELR-47263 (CA), where the courts held that a continuing breach renews the right of action until cessation of the breach. Accordingly, the Claimant urged the Court to hold that the cause of action in this case is a continuing one and cannot be extinguished by limitation.

 

  1. On Issue Five: The Claimant submits that it is statutorily entitled to the reliefs sought under Sections 33, 34, 36, 39, 40, and 46 of the Employees’ Compensation Act, 2010, which impose on all employers the duty to remit monthly contributions and empower the Board to assess penalties and interest for non-compliance. The Claimant also referred to NSITFMB v. Caritas University (Unreported, NICN/EN/37/2023, delivered 26 November 2024), where the Court upheld the statutory right of the Board to recover outstanding contributions and awarded costs of ?300,000 against the Defendant. Counsel urged the Court to apply the same principle and grant all reliefs sought. In conclusion, the Claimant submitted that the Defendant’s preliminary objection is unmeritorious and misconceived, as the suit was properly initiated and falls squarely within the jurisdiction of this Honourable Court.

 

  1. The Claimant accordingly urged the Court to dismiss the preliminary objection with substantial costs and proceed to hear the substantive suit on its merits.

 

RULING ON THE PRELIMINARY OBJECTION

  1. I have carefully read the Notice of Preliminary Objection, the accompanying Written Address, the Claimant’s Counter Affidavit and Written Address, as well as the relevant statutory provisions and judicial authorities cited by both Counsel. Having considered the submissions of learned Counsel on both sides, this Court is of the respectful view that the main issues arising for determination are as follows:
    1. Whether the Defendant’s Preliminary Objection is competent in law.
    2. Whether this Honourable Court has jurisdiction to entertain the suit.
    3. Whether the action is statute-barred and/or premature.

 

  1. On the First Issue: Whether the Defendant’s Preliminary Objection is competent in law. The first point raised by the Claimant/Respondent is that the Defendant’s Written Address in support of the Preliminary Objection is incompetent, having failed to comply with the mandatory provisions of Order 17 Rule 1(7) of the National Industrial Court (Civil Procedure) Rules, 2017, which provides that every written address shall contain:
     (a) a concise statement of the facts;
     (b) the issues for determination; and
     (c) arguments on each issue supported by authorities relied upon.

 

  1. I have carefully examined the Defendant’s Written Address and observed that it does not comply with the above requirements. The Defendant’s Counsel merely made general submissions and assertions without identifying the specific issues formulated for determination by the Court, nor were the arguments clearly compartmentalized and supported by appropriate authorities under distinct issues. In effect, the address is more of a narration of points of law than a structured written argument as contemplated by the Rules of this Honourable Court.

 

  1. It is settled law that rules of court are not mere technicalities or decorations to be observed at the convenience of counsel. They are made to be obeyed and to regulate proceedings in order to achieve fairness and orderliness in the administration of justice. See A-G Federation v. A-G Abia State (2001) 11 NWLR (Pt. 725) 689 at 741, where the Supreme Court held that “rules of court are meant to be followed; non-compliance is not a mere irregularity but may render the process incompetent.”

 

  1. Also, in Chime v. Ude (1996) 7 NWLR (Pt. 461) 379, the Court of Appeal emphasized that written addresses, being an integral part of judicial proceedings, must comply with prescribed procedural standards, and failure to do so could affect the weight the Court accords to them. The Court observed that an address which does not formulate issues or fails to organize arguments in the manner required by the Rules makes it difficult for the Court to properly appreciate the submissions of counsel.

 

  1. However, it must also be borne in mind that the primary duty of this Court is to do substantial justice and not to punish parties for the errors or inelegance of their counsel. The Supreme Court in Ogbuanyinya v. Okudo (No. 2) (1990) 4 NWLR (Pt. 146) 551 at 570, per Nnaemeka-Agu, J.S.C., warned that procedural irregularities should not automatically defeat the hearing of a matter unless they go to the root of the case or cause injustice to the adverse party.

 

  1. Similarly, Order 5 Rule 1 of the NICN Rules, 2017 empowers this Court to treat as a mere irregularity any non-compliance with the Rules that does not occasion a miscarriage of justice. The provision enjoins the Court to direct or otherwise make such order as may be necessary for the attainment of substantial justice.

 

  1. In the present circumstance, while I find that the Defendant’s written address is procedurally defective for failing to comply with Order 17 Rule 1(7) of the Rules, I do not consider such non-compliance fatal to the entire objection. The Defendant has still succeeded in bringing before this Court a challenge touching on jurisdiction — an issue that can be raised at any time and in any form, even orally, and which the Court is bound to consider once raised. See A-G Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 and Baba v. Nigerian Civil Aviation Training Centre (1991) 5 NWLR (Pt. 192) 388. Accordingly, I hold that although the Defendant’s address is inelegantly drafted and falls short of the procedural standard expected under the Rules, it does not render the objection incompetent. The Court shall therefore proceed to consider the substance of the Preliminary Objection in the interest of justice, guided by the spirit and intendment of Order 5 Rule 1 of the National Industrial Court (Civil Procedure) Rules, 2017.

 

  1. ON WHETHER THIS COURT HAS JURISDICTION TO ENTERTAIN THE SUIT: The gravamen of the Defendant/Applicant’s objection is that this Honourable Court lacks jurisdiction to entertain the instant suit, on the alleged ground that the Claimant failed to comply with a condition precedent — namely, the supposed requirement to submit the dispute to arbitration under Section 55(4) of the Employees’ Compensation Act, 2010 (ECA) before instituting the present action. The Defendant further contends that the Claimant’s cause of action does not properly fall within the scope of matters over which this Court can exercise jurisdiction.

 

  1. The law is settled that jurisdiction is the lifeblood of any adjudication. Once it is challenged, it becomes the first and most fundamental issue to be determined before the Court proceeds to consider the merits of any case. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, where Bairamian, F.J. (as he then was) laid down the classic principles that a Court is competent to exercise jurisdiction when: it is properly constituted as regards members and qualifications; the subject matter of the case is within its jurisdiction and there is no feature preventing the Court from exercising it; and the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

 

  1. It is therefore necessary to consider whether these conditions have been satisfied in the instant case.

 

  1. Whether the Subject Matter falls within the Jurisdiction of this Court

  2. By Section 7(1) of the National Industrial Court Act, 2006, and Section 254C(1) of the Constitution of the Federal Republic of Nigeria (1999) (as altered), the National Industrial Court of Nigeria is conferred with exclusive jurisdiction in civil causes and matters relating to or connected with labour, employment, trade unions, industrial relations, workplace conditions, and matters incidental thereto. Specifically, Section 254C(1)(a)–(m) extends that jurisdiction to cover disputes arising from employment, welfare, and safety of employees, including any matter connected with or arising from the Employees’ Compensation Act.

 

  1. The combined reading of these provisions leaves no doubt that disputes connected with the administration, enforcement, or recovery of statutory obligations under the Employees’ Compensation Act are matters within the exclusive domain of this Court. This Court so held in NSITF Management Board v. Caritas University (Unreported, Suit No. NICN/EN/37/2023, delivered on 26th November 2024), where it affirmed its competence to entertain suits relating to the enforcement of contributions and liabilities under the Employees’ Compensation Scheme.

 

  1. The instant suit concerns the Defendant’s alleged failure to remit the statutory monthly contribution of 1% of its total payroll to the Employees’ Compensation Fund as required under Section 33(1) of the Employees’ Compensation Act, 2010. The cause of action thus arises directly from the Defendant’s alleged breach of a statutory obligation created by a labour-related enactment. Consequently, I have no hesitation in holding that the subject matter of this suit falls squarely within the jurisdictional purview of this Honourable Court.

 

  1. On the Alleged Non-Compliance with a Condition Precedent

  2. The Defendant has argued that Section 55(4) of the Employees’ Compensation Act imposes a condition precedent that requires an aggrieved party to submit any grievance first to the Board and thereafter to arbitration before approaching this Court. A close examination of the said provision reveals otherwise. Section 55(4) of the Act provides that “an appeal shall lie from any decision of the Board under subsection (1) of this section to the National Industrial Court.”

 

  1. A careful and contextual reading of Section 55 as a whole shows that it deals exclusively with decisions made by the Board of the Employees’ Compensation Fund in respect of applications for compensation by employees or their dependants — not the recovery of statutory contributions from employers. Subsections (1) to (3) speak of appeals by “a person aggrieved by a decision of the Board” in relation to payment of compensation, which is conceptually distinct from the Claimant’s claim for unremitted employer contributions under Section 33 of the Act.

 

  1. It follows that Section 55(4) has no bearing whatsoever on the enforcement of employer obligations to remit contributions. The law draws a clear line between the “compensatory jurisdiction” of the Board (dealing with injured or deceased workers) and the “revenue enforcement” functions of the Claimant in ensuring compliance with the funding provisions of the Act. To interpret Section 55(4) as the Defendant suggests would amount to reading into the statute what is not contained therein, and to unduly restrict access to the Court contrary to the principle that where a statute is clear and unambiguous, its words must be given their ordinary grammatical meaning. See A.-G., Lagos State v. Eko Hotels Ltd (2018) 36 WRN 132 (SC) and A.-G., Abia State v. A.-G., Federation (2006) 16 NWLR (Pt. 1005) 265 at 375.

 

  1. It is also instructive that nothing in the Employees’ Compensation Act provides for arbitration as a mandatory step or condition precedent to judicial enforcement of statutory obligations. The Defendant’s reliance on such an imaginary requirement is therefore misconceived and legally unsustainable. This Court, in NSITF Management Board v. Caritas University (supra), made it abundantly clear that the recovery of unremitted statutory contributions is a civil claim cognizable before the National Industrial Court and that the alleged failure to first seek administrative or arbitral intervention does not rob the Court of jurisdiction.

 

  1. On the Invocation of Jurisdiction by Due Process: Finally, it is on record that the Claimant commenced this action by due process of law by filing a Complaint accompanied by the requisite Statement of Facts, list of witnesses, and other frontloaded processes in accordance with Order 3 Rule 4 of the National Industrial Court Rules, 2017. There is also nothing on record to show any failure to comply with a statutory precondition. It is therefore my finding that the action was properly initiated, and the Court is competent to entertain same.

 

  1. In view of the foregoing analysis, I find and hold that: The subject matter of this suit, being the recovery of statutory contributions under the Employees’ Compensation Act, 2010, is a labour-related civil cause squarely within the exclusive jurisdiction of the National Industrial Court of Nigeria by virtue of Section 254C(1) of the 1999 Constitution (as altered) and Section 7 of the National Industrial Court Act, 2006. There is no condition precedent under Section 55(4) of the Employees’ Compensation Act requiring arbitration or administrative appeal before recourse to this Court. The suit was properly commenced by due process of law. Accordingly, I resolve this issue in favour of the Claimant/Respondent and hold that this Court is fully seized with jurisdiction to entertain and determine the substantive suit.

 

  1. ON WHETHER THE ACTION IS STATUTE-BARRED:  The Defendant/Applicant has also contended that the instant action is statute-barred, having been commenced outside the period prescribed by law. Counsel to the Defendant argued that the alleged failure to remit contributions under the Employees’ Compensation Act (ECA) occurred several years ago and that the Claimant’s cause of action, if any, arose at the time the default occurred. Consequently, it was submitted that the action, having been instituted in 2024, is caught by the limitation provisions of the Public Officers Protection Act (POPA), particularly Section 2(a) thereof, which prescribes a three-month limitation period for actions against any person in respect of any act done in pursuance or execution of a public duty.

 

  1. The Claimant/Respondent, on the other hand, contended that the Public Officers Protection Act is inapplicable to this case. Learned Counsel submitted that the Defendant, being a private corporate employer, is not a public officer within the contemplation of the Act, and that in any event, actions founded upon continuing breaches or statutory obligations are not caught by limitation. Counsel further submitted that the cause of action herein is a continuing one, as each month of non-remittance constitutes a fresh breach of the Defendant’s obligation under the ECA.

 

  1. Having carefully considered the submissions of both counsel and the authorities cited, the Court deems it necessary to determine (i) whether the Public Officers Protection Act applies at all, and (ii) if so, whether the cause of action is a continuing one such that limitation cannot apply.

 

  1.  (i) Applicability of the Public Officers Protection Act, Section 2(a) of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria 2004, provides that:

“Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution of any law, public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the same shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of…”

 

  1. It is trite law that the protection afforded by this provision is available only to public officers or persons acting in the execution of public duties. See Ibrahim v. Judicial Service Commission (1998) 14 NWLR (Pt. 584) 1 (SC); Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258, and Nwaogwugwu v. President FRN (2007) 1 NWLR (Pt. 1010) 71.
  2. The Defendant in the present case is a private company, not an agency or institution of government. Its statutory obligation to remit 1% of its total monthly payroll to the Employees’ Compensation Fund under Section 33(1) of the ECA, 2010, is imposed in its capacity as an employer, not as a public functionary. The Defendant’s failure to perform that statutory duty cannot therefore be characterized as an act done “in pursuance or execution of a public duty.”

 

  1.  In CBN v. Amao (2010) 16 NWLR (Pt. 1219) 271 (SC), the Supreme Court held that the Public Officers Protection Act protects only natural persons sued for acts done in the discharge of official duties, and not corporate entities acting in their private or commercial capacity. Similarly, in Nigerian Ports Authority v. Construzioni Generali Farsura Cogefar (1974) 1 All NLR (Pt. 2) 463, it was held that a private company cannot claim the immunity conferred by the Act. Accordingly, I hold that the Public Officers Protection Act does not avail the Defendant in this case.

 

  1. (ii) Whether the Cause of Action is a Continuing One: Assuming, without conceding, that the limitation law applies, the question then is whether the failure to remit statutory contributions under the Employees’ Compensation Act constitutes a continuing breach or a completed act.

 

  1. The law is settled that where a wrongful act or omission gives rise to a situation that continues from day to day, the cause of action is deemed to subsist and recur continuously, and limitation does not begin to run until the cessation of the wrongful conduct. See A.-G., Rivers State v. A.-G., Bayelsa State (2013) 3 NWLR (Pt. 1340) 123 (SC); INEC v. Ogbadibo L.G. (2016) 3 NWLR (Pt. 1498) 167 (CA); Shell Petroleum Dev. Co. v. Farah (1995) 3 NWLR (Pt. 382) 148 (CA).

 

  1. In the instant case, the obligation imposed by Section 33(1) of the Employees’ Compensation Act requires every employer to pay monthly contributions equal to 1% of its total payroll into the Employees’ Compensation Fund. Each month, the employer’s obligation to remit arises anew. Thus, every failure to remit constitutes a distinct and recurring breach. The cause of action, therefore, is not a one-off infraction but a continuing default that persists so long as the employer remains in arrears of payment.

 

  1. This position was affirmed by this Court in NSITF Management Board v. Caritas University (Unreported, Suit No. NICN/EN/37/2023, judgment delivered 26th November 2024), where the Court held that:

“The non-remittance of statutory monthly contributions under the Employees’ Compensation Act constitutes a continuing breach, as the obligation to remit arises every month. Accordingly, the plea of limitation under the Public Officers Protection Act cannot be sustained.”

 

  1. Applying this principle to the present case, the Defendant’s alleged failure to remit contributions from 2019 to 2023 constitutes a series of continuing breaches, each giving rise to a fresh cause of action. Consequently, the limitation period, if any, has not run out.

 

  1. (iii) The Doctrine of Continuing Wrong and Statutory Enforcement: It must be emphasized that this Court, as a Court of equity and labour justice, is enjoined by Section 14 of the National Industrial Court Act, 2006 to determine cases on their merits rather than dismissing them on technicalities, where substantial justice can be achieved. Furthermore, the enforcement of statutory obligations imposed by a labour welfare enactment such as the Employees’ Compensation Act cannot be defeated by technical defences designed to perpetuate non-compliance.

 

  1. As the Supreme Court held in FBN Plc v. Atta (2006) 19 NWLR (Pt. 1013) 61 at 88, limitation laws do not apply to continuing obligations or breaches of statutory duties that persist over time. The rationale is simple: it would be inequitable and contrary to public policy to allow an employer to continuously evade a statutory duty by hiding under the shield of limitation.

 

  1. From the foregoing, I find and hold as follows: The Defendant, being a private employer, cannot rely on the provisions of the Public Officers Protection Act. Even if the Act were applicable, the failure to remit monthly contributions under the Employees’ Compensation Act constitutes a continuing breach, which renews the cause of action from month to month. Consequently, the Claimant’s action is not statute-barred and I so hold. From the totality of the foregoing analysis, the Court finds that:
    1. The subject matter of this suit falls squarely within the jurisdiction of this Honourable Court as provided by the Constitution and the Employees’ Compensation Act, 2010.
    2. The action is not statute-barred, the cause of action being of a continuing nature.

 

  1. Accordingly, the Notice of Preliminary Objection filed by the Defendant/Applicant lacks merit and is hereby dismissed.

 

DETERMINATION OF THE SUBSTANTIVE SUIT

  1. Having ruled earlier on the Defendant’s Preliminary Objection, the Court now proceeds to determine the substantive suit on its merit.

 

  1. The Claimant, in its written address, posed the following four questions for determination:
    1. Whether the Defendant, being an employer within the meaning of Section 73 of the Employees’ Compensation Act, 2010, is under a statutory obligation to register with the Employees’ Compensation Scheme and remit 1% of its total monthly payroll to the Employees’ Compensation Fund.
    2. Whether the Defendant’s continuous refusal, failure, or neglect to register with the Scheme and make the mandatory remittances amounts to a breach of statutory duty under the Employees’ Compensation Act, 2010.
    3. Whether the Claimant, having issued all statutory notices, reminders, and pre-legal action correspondence to the Defendant, is entitled to enforce compliance and recover outstanding contributions pursuant to Sections 33, 34, 36, and 39 of the Employees’ Compensation Act, 2010.
    4. Whether this Honourable Court has the jurisdiction to entertain and determine this suit.

 

  1. The Defendant on its part formulated a single issue for determination in its Amended Written Address, to wit:

“Whether, in the circumstances of this case, the Claimant is entitled to the reliefs it seeks as contained in the Originating Summons.”

 

  1. In my view, these issues are substantially similar and revolve around the legal status of the Defendant under the Employees’ Compensation Act, 2010, the question of compliance, and the competence of this suit. I shall therefore adopt and consider all issues together under the following composite question:

Whether, upon the facts and evidence before the Court, the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010, and whether it is bound to register, furnish payroll records, and remit contributions to the Employees’ Compensation Fund as required by law.

 

  1. This Court has already considered and ruled on the Defendant’s preliminary objections, including the contentions that the suit is statute-barred or premature. Having found the suit competent and properly before the Court, these issues need not be revisited in detail. The substantive determination will therefore proceed to the merits of the case, focusing on the questions for determination and the reliefs sought by the Claimant.

 

  1. (1) ON WHETHER THE DEFENDANT QUALIFIES AS AN “EMPLOYER” UNDER THE EMPLOYEES’ COMPENSATION ACT.

 

  1. The first issue for determination is whether the Defendant qualifies as an “employer” within the meaning of Section 73 of the Employees’ Compensation Act, 2010 (ECA). Section 73 defines an “employer” as follows:

“Employer” means any individual, body corporate, Federal, State or Local Government, or any organization employing one or more persons under a contract of employment or apprenticeship, whether the contract is expressed, implied, oral, or written, and whether or not the persons are paid wages or salaries.”

 

  1. The provision is deliberately broad, capturing all entities that engage persons for work or service, regardless of whether they are for-profit or charitable in nature. The intention of the Legislature is to ensure that every entity benefiting from the labor of individuals contributes to a statutory fund that provides compensation for work-related injuries, diseases, or death. The law does not make a distinction based on the source of payment of salaries or whether the organization operates for profit; the critical element is the existence of a work relationship, control over duties, and derivation of benefit from the work performed.

 

  1. In the instant case, the Defendant, by its own acknowledgment and as reflected in the materials before this Court, operates Divine Rays British School Limited, a private educational institution. The Claimant’s Further Affidavit provides Exhibit NSITFMB 7, a detailed New Registration Breakdown List for the 2024/2025 Academic Session, which sets out tuition fees, boarding fees, uniforms, books, and other financial obligations of students. This exhibit is incontrovertible evidence of a structured institutional operation, which necessarily requires the employment of teachers, administrative personnel, and ancillary staff to manage day-to-day activities.

 

  1. The Court notes that the Defendant’s argument that teachers and staff are engaged exclusively by the Parents-Teachers Association (PTA) or that corps members are paid by the Federal Government does not negate the fact that the Defendant, as a corporate entity, retains control and derives economic benefit from their services. The law recognizes the concept of “economic dependence and control” as determinative of the employment relationship. The legal test does not turn on the nomenclature of who issues payment, but rather on the substance of the employment relationship: who directs the work, who sets the terms of engagement, and who benefits from the labor performed.

 

  1. The Court is fortified in this position by the authority of FCDA v. The Governing Council of the National Industrial Training Fund (2009) LPELR–8148 (CA), wherein the Court of Appeal held that the determining factor of employment is not the contractual label but whether the individual or body exercises control and derives benefit from the work performed. Applying that principle to the instant case, the Defendant clearly employs, controls, and benefits from the services of its teaching and administrative staff.

 

  1. Further, the continuous operation of the school, its collection of fees, management of boarding facilities, and administration of student welfare demonstrate that it is actively managing human resources in a manner consistent with employment. The documentary exhibits provided, including the registration and fee schedules, lend weight to the finding that the Defendant exercises the requisite control and direction over its staff, fulfilling the statutory definition of “employer.”

 

  1. Accordingly, this Court finds and holds that the Defendant falls squarely within the category of employers contemplated under Section 73 of the Employees’ Compensation Act, 2010. As such, the Defendant is legally obliged to comply with the provisions of the Act, including registration with the Employees’ Compensation Scheme and remittance of statutory contributions to the Employees’ Compensation Fund.

 

  1. (B) ON WHETHER THE DEFENDANT IS OBLIGED TO REGISTER AND REMIT CONTRIBUTIONS.

 

  1. The second issue for determination is whether the Defendant is legally obliged to register with the Employees’ Compensation Scheme (ECS) and remit the statutory contributions to the Employees’ Compensation Fund as mandated by law. The starting point is Section 33(1) of the Employees’ Compensation Act, 2010 (ECA), which provides:

“Every employer shall, within the first two years of the commencement of this Act and thereafter, make a minimum monthly contribution of 1% of the total monthly payroll of the employer into the Fund.”

 

  1. This provision makes it unambiguously clear that all employers, without exception, are mandated by law to contribute to the Fund. The statute imposes an ongoing obligation, first to register within two years of the commencement of the Act and subsequently to make monthly contributions calculated as a percentage of the total payroll. The legislative intent is to ensure that every employer in Nigeria participates in the statutory compensation scheme, thereby guaranteeing protection and redress for employees who may suffer work-related injuries, disability, disease, or death.

 

  1.  Further, Sections 39(1)–(2) of the Act obligate the employer to provide accurate payroll information to the Nigeria Social Insurance Trust Fund (NSITF), while Sections 53 and 54 empower the officers of the NSITF to enter any workplace, inspect payrolls, and assess contributions. These provisions collectively create a statutory compliance framework, where registration, disclosure of payroll, and contribution remittance are intertwined obligations.

 

  1. (c) ON EVIDENCE OF NOTICE, DEMAND, AND CONTINUOUS DEFAULT

In the present case, the documentary evidence before this Court demonstrates that the Claimant made persistent and structured efforts to secure the Defendant’s compliance with its statutory obligations under the Employees’ Compensation Act, 2010. In particular, Exhibits NSITFMB 1–5 and the exhibits attached to the Further Affidavit reveal a chronological pattern of statutory notices and communications, as follows:

 

  1. Exhibit NSITFMB 1 – A letter dated 16th January 2024, titled “Introduction to the Employees’ Compensation Scheme (ECS)”, introducing the Defendant to the Scheme and highlighting its statutory obligation to register and remit 1% of total monthly payroll. Exhibit NSITFMB 2 – A follow-up Notice/Request for Registration dated 6th February 2024, reiterating the mandatory duty of the Defendant and warning of the legal implications of non-compliance. Exhibit NSITFMB 3 – A reminder notice dated 28th February 2024, again urging registration and remittance, specifying that failure to comply within twenty-one (21) working days would result in enforcement proceedings. Exhibit NSITFMB 4 – A Notice of Statutory Assessment of Salary/Wages Record dated 16th April 2024, notifying the Defendant of an impending workplace visit by NSITF officers for the purpose of assessing wages and determining the actual sum payable into the Fund. Exhibit NSITFMB 5 – A Pre-Legal Action Notice dated 30th April 2024, issued by the Legal Department of the NSITF, giving the Defendant twenty-one (21) days to comply before legal action would be initiated, and clearly stating the reliefs to be sought in court. Exhibit NSITFMB 7 – The New Registration Breakdown List for the 2024/2025 Academic Session, showing detailed financial and operational information about the Defendant, including tuition fees, boarding fees, uniforms, and other charges.  Exhibit NSITFMB 8 – Notification for an Occupational Safety and Health (OSH) Awareness/Enlightenment Program addressed to the Defendant, which further evidences the Claimant’s ongoing engagement and regulatory oversight of the Defendant’s operations.

 

  1. These correspondences, sent via registered courier and duly served on the Defendant, clearly establish the Claimant’s compliance with all procedural requirements prior to instituting the action. The Defendant’s failure to respond, furnish payroll information, or remit contributions constitutes a continuous breach of statutory duty, unchallenged by any evidence to the contrary. And I so hold.

 

  1. The Court further finds that the Defendant’s reliance on its missionary, charitable, or educational status does not exempt it from statutory obligations under the ECA. The statute draws no distinction between commercial and non-profit entities. All bodies, whether profit-making, charitable, or governmental, are subject to the same mandatory duties. This position is reinforced by the authority of A.G. Federation v. A.G. Abia State (2001) 11 NWLR (Pt. 725) 689, where the Supreme Court held that statutory duties must be performed irrespective of the personality, status, or nature of the entity involved. By parity of reasoning, the Defendant cannot evade compliance by claiming charitable or missionary status.

 

  1. Accordingly, the Court finds that the Defendant was under a clear, continuing, and mandatory obligation to register with the Employees’ Compensation Scheme, submit accurate payroll records, and remit monthly contributions to the Fund. The Defendant’s persistent refusal or neglect constitutes a violation of Sections 33 and 39 of the Employees’ Compensation Act, 2010, and exposes it to both civil enforcement and penal consequences under the law. In the circumstance, this Court holds that the Defendant is legally obliged to comply with the provisions of the Employees’ Compensation Act and that non-compliance cannot be excused by the Defendant’s asserted charitable status or operational structure.

 

  1. Having found that the Defendant qualifies as an “employer” under Section 73 of the Employees’ Compensation Act, 2010, and that it has persistently failed and refused to comply with its statutory obligations to register with the Employees’ Compensation Scheme and remit the mandatory 1% monthly contributions, the Court is satisfied that the Claimant is entitled to the reliefs sought in the Originating Summons.

 

  1. The reliefs sought are both declaratory and consequential, and are fully supported by the provisions of the Employees’ Compensation Act, particularly: Section 33(1) – which imposes a mandatory duty on every employer to remit a minimum of 1% of the total monthly payroll into the Employees’ Compensation Fund; Section 34(1)–(3) – which empowers the Claimant to enforce compliance and take necessary action to recover unpaid contributions; Section 36(1)–(2) – which establishes the Claimant’s right to recover unpaid assessments and to recover costs of enforcement; Section 39(1)–(4) – which mandates employers to furnish payroll information, enables the Claimant to make assessments in default of cooperation, and prescribes penalties for non-compliance; Sections 53 and 54 – which grant the Claimant’s officers the authority to inspect workplaces and records for the purpose of ensuring compliance with the Act.

 

  1. The documentary evidence before the Court — Exhibits NSITFMB 1–8 — demonstrates that the Claimant issued multiple statutory notices over a period spanning January to April 2024, including letters of introduction to the Scheme, follow-up registration requests, reminders, statutory assessment notices, and a pre-legal action notice. These exhibits establish beyond doubt that: The Claimant gave the Defendant ample opportunity to register and comply voluntarily; The Defendant was made aware of the statutory obligations and the legal consequences of non-compliance; The Defendant nonetheless refused or neglected to register, submit payrolls, or remit contributions, resulting in ongoing and continuous default. In light of the above, the Court finds that the reliefs sought — including:

 

  1. A declaration that the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010; A declaration that the Defendant is under a statutory obligation to register with the Employees’ Compensation Scheme, furnish accurate payroll information, and remit monthly contributions to the Fund; An order directing the Defendant to immediately register with the Scheme, furnish its payroll records from May 2017 to date, and remit the 1% monthly contributions into the Employees’ Compensation Fund; Recovery of any arrears assessed by the Claimant; and Costs of this action are fully justified, lawful, and necessary to enforce the statutory mandate of the Employees’ Compensation Act.

 

  1. The Court emphasizes that the Defendant’s reliance on its missionary or charitable status, or claims that staff were engaged through the PTA, cannot excuse non-compliance. The law makes no distinction on the basis of profit orientation or organizational type; statutory duties are to be observed irrespective of the entity’s nature (A.G. Federation v. A.G. Abia State (2001) 11 NWLR (Pt. 725) 689).

 

  1. However, the Court notes that certain reliefs sought by the Claimant cannot be granted: With respect to Relief 7, which seeks payment of 40 % of the Defendant’s estimated total monthly payroll as penalty, the Court acknowledges that Section 39(4) of the Employees’ Compensation Act, 2010 empowers the Board to impose penalties for failure to remit statutory contributions. However, the provision does not stipulate any fixed or uniform rate of penalty, nor does it authorize the application of a blanket 40 % of payroll as claimed by the Claimant. While the existence of a penalty framework under the Act is not in doubt, the quantum sought in this instance has no express foundation in the statute or any subsidiary legislation made thereunder. The Court is bound by the clear words of the law and cannot import or invent a percentage that the legislature has not prescribed. The relief, as couched, therefore lacks legal support. Accordingly, Relief 7 fails and is hereby refused.

 

  1. Relief 8 seeks an order directing the Defendant to pay 10% interest on the estimated total monthly payroll. The Court has examined the provisions of the Employees’ Compensation Act, 2010 and finds no statutory or contractual basis authorizing the imposition of such interest. The Act, while empowering the Board to recover unpaid contributions and to impose penalties under Section 39(4), does not contemplate or provide for the award of interest on outstanding contributions. Interest, being a form of compensation for the use or detention of money, must either be founded on a specific contractual term or clearly conferred by statute. In the absence of either, the Court lacks the authority to create such a remedy by implication. To grant the relief as framed would amount to supplementing the express provisions of the law and introducing a civil remedy not envisaged by the legislature. The Court cannot read into a statute what is not contained therein. Accordingly, Relief 8 also fails and is hereby refused.

 

  1. Relief 9 – General damages of Two Million Naira (N2,000,000.00): The Claimant, being a statutory body, has not suffered personal loss or damage that would justify an award of general damages. The Act provides for recovery of unpaid contributions and enforcement of compliance, but does not permit general damages for the enforcing agency. Relief 9 is therefore refused.

 

  1. In view of all the foregoing, and for the reasons stated, this Court resolves the sole issue in favour of the Claimant. Accordingly, it is hereby declared and ordered as follows:
    1. It is declared that the Defendant, Divine Rays British School Ltd, is an employer within the meaning of Section 73 of the Employees’ Compensation Act, 2010, and is accordingly bound by the provisions of the said Act.
    2. It is declared that the Defendant’s continuous refusal, failure, and neglect to register with the Employees’ Compensation Scheme and to remit the mandatory 1% monthly contribution to the Employees’ Compensation Fund since May 2017 constitutes a breach of statutory duty.
    3. It is hereby ordered that the Defendant shall within thirty (30) days from the date of this judgment:
      1. Register with the Employees’ Compensation Scheme (ECS);
      2. Furnish to the Claimant its full and accurate payroll records from May      2017 to date; and
      3. Remit to the Employees’ Compensation Fund the assessed 1% of its total         monthly payroll for the period in default, as may be determined by the   Claimant in accordance with Sections 33 and 39 of the Act.
    4. It is further ordered that officers of the Claimant are at liberty to enter and inspect the Defendant’s workplace and records for the purpose of enforcement and compliance pursuant to Sections 53 and 54 of the Employees’ Compensation Act, 2010.
    5. Reliefs 7, 8 and 9 are hereby refused. 
    6. Costs of ?250,000.00 are awarded in favour of the Claimant against the Defendant.

 

  1. Judgment is accordingly entered.

 

 

Hon. Justice J.I. Targema, PhD