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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP: HON. JUSTICE S. A. YELWA

THIS 16TH DAY OF JULY, 2024                                           SUIT NO: NICN/LA/258/2023

BETWEEN

NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD-- CLAIMANT

AND

1.     KAYDEL COMPREHENSIVE COLLEGE LAGOS LIMITED, LAGOS

Doing business under the name and style of “Kaydel Foundation Private School”)

2.     THE PROPRIETRESS, KAYDEL COMPREHENSIVE COLLEGE, LAGOS- DEFENDANTS.

JUDGMENT

This case is re-assigned to this court and was for the first time mentioned on 24/4/2024 and adjourned to 30/4/2024. It is on record that the claimant’s counsel K.U. Ewudo Esq who has always been in court informed this court that they duly notified the defendants of the sitting of the court earlier, but for no reason the defendants were absent from court. Counsel supplied this court with the mobile phone numbers 08034263122 and 08030773173 through which the mobile SMS was delivered on 29/4/2024 to the defendant’s counsel. This court adjourned the matter to 20/5/2024 for hearing. Still despite being notified of the date, the defendants were still absent. The matter was further adjourned to 27/5/2024. Though they were notified again by the registrar of this court about the adjourned date, still both the defendants and their counsel absented themselves, the claimant’s counsel’s application to argue his case was granted instantly on 27/5/2024 hence this judgment.

Facts of the case:

By an Originating Summons dated and filed on the 31st August, 2023, the Claimant sought the answers to the following questions to be determined by this Honourable Court-

1.     Considering the extant provisions of Sections 33 (1), 39 (1) (a) & (b), (i), (ii)& (iii), 40 (1) (a)& (b) and 73 of the Employees’ Compensation Act, 2010, whether the 1st Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010 and by so doing, 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.

2.     If the answer to question 1, above is in the affirmative, does the 1st 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?

3.     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 payroll, whether the Defendant is liable to pay as a penalty for the default, a percentage of the assessment determined by the Claimant, and the Claimant may make its own estimate of the payrolls, assess and levy on that estimate and the Defendant is bound by it.

4.     If an employer within the meaning of the Employees’ Compensation Act, 2010 and considering the provisions of Section 39 (4) of the Employees’ Compensation Act. 2010 where the Defendants do 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 Defendants, 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.

5.     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 accurateness of the Defendant’s payroll and assessing same.

6.     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 circumstances of this case.

7.     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 by the 1st Defendant’s estimates of the probable amount of the Defendant’s payroll from July, 2011, when the Employees’ Compensation Act, 2010 became operational up to date, and is entitled to 1.0 percent of 1st Defendant’s total monthly payroll from July 2011,when the Employees’ Compensation Act, 2010 became operational, up to date.

The claimant whereof seeks the following reliefs:

1.     A DECLARATION that the 1st Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010 and by so doing obligated to make a minimum monthly contribution of 1.0 percent of 1st Defendant’s total monthly payroll from July 2011 up to date and thereafter into the Employees’ Compensation Fund managed by the Claimant.

2.     A DECLARATION that the 1st Defendant being an employer within the 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.     AN ORDER compelling the Defendants 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.     AN ORDER compelling the Defendants to compute/calculate and make a minimum monthly contribution of 1.0 percent of the total monthly payroll of the Defendant from July 20ll, 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 1st Defendant situate at 1-3 Moshood Balogun Street, Igbo-Oluwo, Jumofak Bus-Stop, Ikorodu, Lagos, Nigeria 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 July, 201l up to date and thereafter.

6.     AN ORDER compelling the Defendants 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.     AN ORDER directing the Defendant to pay into the Employees’ Compensation Fund I0% 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, 20Il 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.

8.      AN ORDER directing the Defendants to pay into the Employees’ Compensation Fund 10% interest on the Defendant’s total monthly payroll from July. 201l up to date.

9.     The sum of N5,000,000.00 (Five Million Naira) only for cost of litigation.

   10.  AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit and expedient to make in the circumstances of this case.

The Originating Summons is supported by a 23 paragraphs affidavit deposed to by one Anifowoshe Sikiru with 11 exhibits attached, and an accompanying written address.

It is on record that the Defendants in this case neither filed any memorandum of appearance nor counter affidavit despite being served with the court processes

SUBMISSION OF CLAIMANT’S COUNSEL:

Counsel in the accompanying written address, formulated the following issues for determination:

1.     Whether by the construction of the extant provisions of Sections 73, 33 (1) 39 (1) (a) (b) (i) (ii) (iii) (2) (3) and (4) 40 (1) (a) (b) (2) and (5) of the Employees’ Compensation Act, 2010, the 1st 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 when the Employees’ Compensation Act 2010 became operational, 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 1st  Defendant’s payroll from July, 201l up to date.

2.     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 1st Defendant’s total monthly payroll into the Employees’ Compensation Fund for the period of July, 20ll up to date.

3.                 Whether having regard to the 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, 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 1st  Defendant and have access to inspect and examine F Defendant’s payroll and other necessary documents with a view to ascertaining a proper assessment of contribution payable by the 1st Defendant.

Learned counsel in his written argument among other things submitted that from the affidavit evidence and particularly the content in Exhibit- NSITEMB 1, the 1st  Defendant has operated as a business since the year 2000 with persons working for her under a contract of employment as Academic and Non Academic Staff. By the provisions of Section 73 of the Employees’ Compensation Act 2010, the Defendant is for all intents and purposes an employer.

Counsel submitted that the 1st defendant being an employer within the meaning of the Act is mandatorily required to make a minimum monthly contribution of 1.0 percent of its total monthly payroll into the Employees’ Compensation Fund established under Section 56 (1) of the Employees’ Compensation Act, 20I0 pursuant to the provisions of Section 33 (1) of the Act.

 

Counsel further submitted that it is also the law, as encapsulated in Sections 39 and 40 of the Act that every employer shall cause to be furnished to the Claimant a complete and accurate estimate of the probable amount of the payroll of each of the employer’s industries within the scope of this Act.

 

It is the submission of counsel that from the Claimant’s affidavit evidence that the 1st Defendant is being in arrears of payment of contributions since July, 2011. And several visits and demands have been made by the Claimant to the Defendants in respect of payment of contribution and submission of total -monthly-payroll but the Defendants have-wilfully neglected to make the minimum monthly contribution, and furnish the Claimant with its total monthly payroll, all in total breach of the provisions of the Employees’ Compensation Act 20I0. Also, counsel submitted that officers of the Claimant have consistently been refused access to the Defendant’s payrolls and books of accounts for inspection in breach of the provisions of Sections 53 and 54 of the Employees’ Compensation Act, 2010. This court was urged to deliver judgment by resolving the issues favourably for the claimant by granting all the reliefs.

COURT’S DECISION

I have carefully read through the processes filed and also listened to the arguments of counsel. I have similarly in the same vein reviewed the questions raised by the Claimant in the Originating summons and looked into the relevant provisions of the instruments in question and I am of the firm view that this case could ordinarily determined on:

“Whether or not upon the consideration of the questions formulated for determination, the Claimant is entitled to the reliefs sought”. The crux of the Claimant’s case is that the 1st Defendant operates the business of a school with employees it pays on a monthly basis at  No. 1-3 Moshood Balogun Street, Igbo-Oluwo, Jumofak Bus-Stop, Ikorodu, Lagos State. The claimant introduced the Employees’ Compensation Scheme and Employees’ Compensation Act to the Defendants by a letter dated 13th October, 2015, to register its employees and was reminded through series of letters, but the Defendants have wilfully neglected to furnish the Claimant with complete and accurate total monthly payroll from July 2011 when the Employees’ Compensation Act 2010 became operational, up to date, and failed 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. These notification letters and documents served on the defendants are annexed to the processes before this court.

Before delving into the main issue, it is pertinent to note again that the Defendants did not file any process, neither were they represented in this suit despite being served with several hearing notices as observed herein above.

In resolving the issue, I find it apposite to start by stating that the resolution of the questions before the court hinge on the interpretation of Sections 32 (1) (a) (b) and (c); 33 (1); 34 (1) (2) (a) (b) and (3); 36 (1) & (2); 39 (1) (a) (b) (i) (ii) (iii) (2) (3)& (4); 40 (1), (a), (b), (2) &(5); 53 (1), (2), (3), (4), (5), (6) & (7); and 54 (b), (c), (d), (e), (f) and (g), 73 of the Employees’ Compensation Act 2010.

Before resolving the issue, it is expedient to state expressly that this court has taken a judicial notice of the fact that the Claimant is a creation of statute as Section 2 (1 ) of the Nigeria Social Insurance Trust Fund Act provides that; “There is hereby established for the management of the Fund, a body to be known as the Nigerian Social Insurance Trust Fund Management Board (in this Act referred to as “the Board”) which shall, subject to this Act have general control of the Fund and investments of sums forming part of the Fund.”. The Act also provides elaborately for the scope, applicability and duty of the Nigeria Social Insurance Trust Fund Board.

As earlier stated the claimant is asking for the determination of some Sections  of the Employees’ Compensation Act 2010 which is designed to provide for an open and fair system of guaranteed and adequate compensation for employees or their dependents in the event of death, injury, disease or disability arising out of or in the course of employment.

I must also state that basically the questions formulated by counsel for this court to answer are largely questions of law as it is the contention of the claimant’s counsel that by provisions of Sections 2(1) and 73 of the Employees’ Compensation Act, 2010, the 1st Defendant is an employer and is subject to comply with the provisions of Employees’ Compensation Act 2010 by making mandatorily the required minimum monthly contribution of 1.0 percent of its total monthly payroll into the Employees’ Compensation Fund in compliance with section 33(1) and 56(1) of the Employees’ Compensation Act 2010. Moreso, that the defendant ought to have furnished the Claimant with a complete and accurate estimate of the probable amount of the payroll of the employees subject to Sections 39 and 40 of the Employee’s Compensation Act 2010. And, that the refusal of the Defendant’s to permit the claimant access to the payrolls and her books of accounts amounts to breach of the provisions of Sections 53 and 54 of the Employees’ Compensation Act, 2010.

Under the Employees’ Compensation Act 2010, employers operating under Nigerian laws will deduct 1% of each of their employee’s monthly salary and remit it to the Employees’ Compensation Fund.  The Employees’ Compensation Fund is managed by the Nigeria Social Insurance Trust Fund Management Board.

By the provisions of the Act, an employer who fails to make the required payroll information available to the Board or where it is found that the information contained in the payroll is untrue or inaccurate, the employer may be liable to pay the provisional assessment levied by the Board and a fine, calculated as percentage of the assessment by the Board. 

In support of the claimant’s case, the claimant annexed 11 exhibits and particularly relied on Exhibit NSITFMB- 1, which is a copy of the Defendant’s details from the Corporate Affairs Commission website.

From the foregoing it is imperative that we consider these sections of the relevant law to determine whether or not they are applicable to the defendant in the circumstance of this case.

Considering the textual  provisions of Sections 33 (1), 39 (1), (a) & (b) (i), (ii), (iii); 40 (1), (a), (b) and 73 of the Employees’ Compensation Act, 2010 could it be said that the 1st Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010 and as such, 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?

For the purpose of clarification, I will reproduce  Sections 33(1) and 39(1) (a) and (b) (i) (ii) (iii); 40 (1) (a) (b), and 73 of the Employees’ Compensation Act 2010, while Section 33(1) of the Employees’ Compensation Act 2010 provides thus:

Section 33 (1) provides:….. “Every employer shall, within the first 2 years of the commencement of this Act, make a minimum monthly contribution of 1.0 per cent of the total monthly payroll into the Fund”.

Section 39 (1) (a) & (b) Every employer shall-

(a)      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.

(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 limited to 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 reports 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.

Section 40 (1) (a) (b) Every employer shall, not later than last day of February in each year or at such times as may be required by the Board, a statement-

(a)  Of the total amount of all earnings paid to its employees in 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.

Section 73 is the Interpretation Section wherein Board was described as to mean the Nigeria Social Insurance Trust Fund Management Board established under the Nigeria Social Insurance Trust Fund Act, 1993.

From the foregoing, the claimant’s counsel was right when he stated that Section 33(1) of the Act makes provision for the 1.0 per cent of the total monthly payroll of the employees to be paid into the Fund of the Board. I have also looked meticulously that Section 73 of the Act has defined “Board” to mean Nigeria Social Insurance Trust Fund Management Board which will lead us to consider the enabling powers of the Nigeria Social Insurance Trust Fund Management Board and whether it is vested with power to control Fund.

I have considered the said Nigeria Social Insurance Trust Fund Management Act No. 73 1993 and Section 3 of the said Act which provides thus:

1       (a) The Board shall be responsible for the administration of the Fund and the investment of sums forming part of the Fund;(b.) The payment of the various benefits provided under this Act to persons entitled to the benefit and, (c) The general administration of this Act and regulations made thereunder.

2.  The Board shall have power to carry out such activities as may appear to the Board to be incidental or conducive to the attainment of its objects under this Act.

From the provisions above, it is clear and unambiguous that the claimant is empowered to administer funds.

The Nigeria Social Insurance Trust Fund Management Act provides that it shall apply to every person who:

(a) Is employed by a company incorporated (or deemed to be incorporated) under the Companies and Allied Matters Act; or

(b) Is employed by a partnership irrespective of the number of persons employed by the company or partnership; or

(c)  In any other case, where the number of persons employed is not less than five.

However, the interpretation of section of 73 of the Employees Compensation Act defined employee to mean “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 Governments, and any of the government agencies and in the formal and informal sectors of the economy”.

It is therefore the view of this court that issue 1, is answered in the affirmative to the effect that by virtue of the extant provisions of Sections 33(1), and 73 of the Employees’ Compensation Act, 2010 the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010 and being so, comes under the scope of application of the said Act. I so hold.

Having resolved issue 1 as above, issue 2 is, “If the answer to Question 1, is in the affirmative, 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 established under the Act and managed by the Claimant is viable.”

I reckoned that the claimant stated that by virtue of Section 33(1) and 56(1) of the Employees’ Compensation Act, 2010 the defendant is to make a minimum monthly contribution of 1.0 percent of the total monthly payroll into the Board’s Fund subject to the provisions of the Act. For purpose of clarity, Section 33(1) provides that: “Every employer shall, within the first 2 years of the commencement of this Act, make a minimum monthly contribution of 1.0 per cent of the total monthly payroll into the Fund”. While Section 56(1) provides that  “There is established the Employees’ Compensation Fund (in this act referred to as “the fund”) into which shall be credited all moneys, funds or contributions by employers for adequate compensation to employees or their dependents for any death, injury, disability or disease arising out of or in the course of employment”.

From the foregoing sections, and having resolved issue 1 in the affirmative, it is the holding of this court that by virtue of section 33(1) and 56 (1) of the Employees’ Compensation Act, 2010 the 1st defendant is under a legal duty to make a minimum monthly contribution of 1.0 percent of the total monthly payroll into the Fund managed by the claimant.

Issue 3 is, “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 its payroll, whether the Defendants is liable to pay as a penalty for the default, a percentage of the assessment determined by the Claimant, and the claimant may make its own estimate of the payrolls, assess and levy on that estimate and the Defendant is bound by it”.

Section 39(2) of the Employees’ Compensation Act, 2010 provides that, “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 payroll, assess and levy on that estimate and the employer is bound by it.”

It is the contention of the claimant that on several occasions they caused to be served on the defendants’ letters which are Exhibits annexed to their affidavit in support of this suit introducing the said Act to them while enjoining them to comply with the provisions of the Act, however the 1st defendant failed to comply, that in my view is a default on the part of the 1st defendant considering the fact that it is an employer of labour.

By Virtue of Section 39 (2) of the Employees’ Compensation Act, 2010 it is crystal clear that an employer who is in default of the requirement of Section 39(1) is liable to pay a penalty for such default, and based on the percentage assessed by the Board in view of the estimate of the payroll, assess and levy given by the employer, the employer is bound by such estimates.

 From the forgoing, it is the view of this court that where the 1st Defendant fails to furnish the Claimant with an estimate of the probable amount on its payroll, the 1st Defendants is liable to pay as a penalty for the default, a percentage assessed by the Claimant, in view of the estimate of the payroll, assess and levy given by the defendants and the 1st Defendant is bound by it. I so hold.

Issue 4 is, if an employer within the meaning of the Employees’ Compensation Act, 2010, and considering the provisions of Section 39 (4) of the Employees’ Compensation Act. 2010, where the Defendants do not furnish complete and accurate particulars of the 1st Defendant’s payroll to the Claimant, or if the particulars of the payroll is not true and accurate, whether the Defendants, 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.

Section 39(4) of the Employees’ Compensation Act, 2010 provides that, “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 true 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 not less than N100,000 or to both imprisonment and fine for an individual or a fine of not less than N1,000,000 for a body corporate and in addition, each director, manager or officer of the body corporate shall be deemed to have committed the offence and shall be liable on conviction to imprisonment for a term not exceeding one year or a fine of N100,000 or to both such imprisonment and fine.

It is correct that the intention of the legislature is that upon failure of an employer to comply with the provision of Section 39 (1) such employer shall be liable upon conviction to imprisonment for a term not exceeding one year or a fine of N100, 000 for individual employer while 1,000,000.00 for a corporate body or to both such imprisonment and fine. Based on the foregoing, it is the view of this court that, where the 1st Defendant do not furnish complete and accurate particulars of their payroll to the Claimant, or if the particulars of the payroll is not true and accurate, 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. In my view of the meaning of these provisions, there is no difficulty since it is the ordinary word used that is given their natural and ordinary meaning. I find no doubt to lead me to take a voyage to other cannons of interpreting the provisions as they are.

The 1st Defendant is liable to pay as a penalty for default, a percentage of the assessment determined by the Claimant an employer who fails to make the required payroll information available to the Board or where it is found that the information contained in the payroll is untrue or inaccurate, the employer may be liable to pay the provisional assessment levied by the Board and a fine, calculated as percentage of the assessment by the Board.

Issue 5 is, having regard to the combined provisions of Sections 53 (1), (2), (3), (4), (5), (6) & (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 accurateness of the Defendant’s payroll and assessing same.

Section 53 (1), (2), (3),(4), (5), (6)& (7) of the Employees ’Compensation Act, 2010 provides that:

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 authorized by the Board may, at all reasonable hours, enter any part of the establishment of any employer or person who may be an employer.

3.     An employer shall produce, within 30 days of receiving notice from the Board, and in the manner set out in the 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 hinders 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 Section 54 (a) (b) (c) (d) (e) (f) and (g) of the Employees ’Compensation Act, 2010 provides that,

An officer of the Board may, for the purposes of carrying out his or her duties under this Act and any regulation made thereunder 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 person or persons having special, expert or professional knowledge of any matter in respect of which inspection is being carried out;

e.      Make enquiries 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 enquiry;

f.       Require that records or documents in a workplace or part thereof may not be disturbed for a reasonable period of time for the purpose of carrying out an examination, investigation or enquiry; 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.

By virtue of the sections highlighted above, it is without doubt to hold that the Claimant is vested with the power at all reasonable hours, to enter any part of the establishment of any employer or person who may be an employer to do any of the following duties as enumerated in those sections above in line with the authority as vested upon it by the Act. It is the view of this court that, Having regard to the combined provisions of Sections 53 (1), (2), (3) ,(4), (5), (6) &(7), and 54 (a), (b), (c), (d), (e), (f) & (g) of the Employees’ Compensation Act, 2010 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 accurateness of the Defendant’s payroll and assessing same. This court so hold.

Issue 6 is, 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 circumstances of this case.

Going by the provisions of the Employees’ Compensation Act, as referred herein, the appropriate order or orders to make are the order(s) captured in the reliefs of the originating summons.

Issue 7 is 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 by the 1st Defendant estimates of the probable amount of the Defendant’s payroll from July, 2011, when the Employees’ Compensation Act, 2010 became operational, up to date, and is entitled to 1.0 percent of 1st Defendant’s total monthly payroll from July 2011, when the Employees’ Compensation Act, 2010 became operational, up to date.

This issue is in pari passu with issue 1 above, which this court had earlier decided on, in the affirmative. With regards to the claim that the Defendant has been in arrears of payment of contributions since July, 2011 till date, the claimant has a duty to prove that the defendant became liable as an employer of labour since 2014. However, nothing has been placed before this court to prove same. In the case of  GODWIN C ONOVO  & 3 ORS V FERDINAND MBA & 3 ORS 2014 14 NWLR PT 1427 P 391 @ 414 PARAS A-B and P 428 PARAS B-D  the APEX COURT states:  on burden of proof in civil cases that by s.131-133 of the EA, 2011, he who assert must prove and whoever desires to have judgment in his favour must establish his case on the preponderance of evidence………….

Having considered issue 1 in the affirmative, it follows naturally, that this particular issue succeeds only to the effect that the Claimant is entitled to be furnished with the Defendant’s estimates of the probable amount on the Defendant’s payroll from the time the defendant became an employer of labour as they fall within the contemplation of the Employees’ Compensation Act, 2010 and that the claimant is entitled to 1.0 percent of Defendant’s total monthly payroll from the time the defendant became an employer of labour.

It is in the light of the foregoing that this court will consider the reliefs sought by the Claimant. Two of the said reliefs are declaratory reliefs and it is beyond conjecture that declaratory reliefs are not granted as a matter of course. The court in the case of DIAMOND BANK PLC. V. YAHAYA & ANOR. (2011) LPELR-4036(CA) held that:

“The law is settled that the courts do not grant declaratory relief based on the admission of the defendant. The plaintiff must satisfy the court by cogent, credible and convincing evidence called by him that he is entitled to the declaratory relief. So where the plaintiff on his own evidence fails to prove his claim for declaration, his claim must fail. See also other decisions in Ayanru V. Mandilas Ltd, (2007) 10 NWLR (Pt. 1043) 462; Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187.” Per ONYEMENAM J.C.A. (P. 27, paras. B-D)

 Relief 1 is, A DECLARATION that the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010 and by so doing obligated to make a minimum monthly contribution of 1.0 percent of 1st Defendant’s total monthly payroll from July, 2011 up to date and thereafter, into the Employees’ Compensation Fund managed by the Claimant.

 

In considering the foregoing relief, there is no gainsaying that Considering the extant provisions of Sections 2(1), 33(1) and 39(1) (a) and (b) (i) (ii) (iii); 40 (1) (a) (b), and 73 of the Employees’ Compensation Act 2010 the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010 and being so, comes under the scope of application of the said Act. Hence this court makes a declaration to the effect that the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010 therefore obligated to make a minimum monthly contribution of 1.0 percent of her total monthly payroll from the date it became an employer of Labour up to date and thereafter, into the Employees’ Compensation Fund managed by the Claimant.

Relief 2 is, A Declaration that the 1st Defendant being an employer within the meaning of the Employees’ Compensation Act, 2010 is obligated to cause to be furnished to the Claimant complete and accurate particulars of its total monthly payroll from July, 2011 up to date and thereafter.

This court finds that it is the duty of the defendant to comply with the provisions of Section 39 (1) (a) and (b) (i) (ii) (iii); 40 (1) (a) (b) of the Employee’s Compensation Act 2010 by furnishing the Board with the necessary requirements as stated by the Act, as the Act does not give the defendant an option of whether or not to comply.

In the forgoing it is the view of this court that relief 2 is granted to the effect that, that the Defendant being an employer within the meaning of the Employees’ Compensation Act, 2010 is obligated to cause to be furnished to the Claimant complete and accurate particulars of its total monthly payroll from the date it became an employer of labour till the date of this judgement.

Relief 3 is 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, 2010 up to date and thereafter.

The said relief is sought pursuant to question 3 which was answered in the affirmative as the defendant by virtue of Section 39 1 (a) & (b) is to keep at all times at 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. Hence relief 3 succeed as this court makes an order compelling the Defendant to keep, at all times, with the Claimant complete and accurate particulars of the Defendant’s payrolls from the date it became an employer of labour up to date.

Relief 4 is for, An Order compelling the Defendant to compute/calculate and make a minimum monthly contribution of 1.0 percent of its total monthly payroll from July, 2011 up to date and thereafter into the Employees’ Compensation Fund managed by the Claimant.

This relief is also predicated on question 2 which was answered in the affirmative as it is crystal clear that by virtue of section 33(1) of the Employees’ Compensation Act, 2010 the defendant is to make monthly contribution of 1.0 per cent of the total monthly payroll into the Fund of the claimant. In view of that, relief 4 is granted to the effect that this court makes an Order compelling the Defendant to compute/calculate and make a minimum monthly contribution of 1.0 percent of its total monthly payroll from when it became an employer of labour till Date and thereafter into the Employees’ Compensation Fund managed by the Claimant.

I will consider Relief 5 and Relief 6 together, as relief 5 is for, An Order granting entry to officers of the Claimant into the Workplace of the 1st Defendant situate at 1-3 Moshood Balogun Street, Igbo-Oluwo, Jumofak Bus-Stop, Ikorodu, Lagos, Nigeria, for purposes of inspecting and examining the Defendant’s payrolls and other documents necessary for assessment of the Defendant’s minimum monthly contribution of 1.0 percent of its total monthly payroll from July, 2011 up to date and thereafter.

While relief 6 is for, An Order compelling the Defendants to grant officers of the Claimant access to their total monthly payroll from July, 2011 up to date and thereafter, for the purposes of assessing the Defendants of the minimum monthly contribution of 1.0 percent of its total monthly payroll from July, 2011 up to date and thereafter.

I can recount that this court had in resolving question 6 stated that by the combined effect 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  which empower an officer of the Claimant or any person authorized thereby, at any time and at all reasonable hours, to 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 accurateness of the Defendant’s payroll and assessing same.

Hence it is without doubt that reliefs 5 & 6 are grantable and in view 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 this court hereby makes an Order granting entry to officers of the Claimant into the Workplace of the Defendant situate at 8 Olowu Banjoko Street Solomade, Ikorodu  Lagos, Nigeria, for purposes of inspecting and examining the Defendant’s payrolls and other documents necessary for assessment of the Defendants’ minimum monthly contribution of 1.0 percent of its total monthly payroll from the day it became employer of labour up to the date of this judgement.

In addition, the court makes a further Order compelling the Defendants to grant officers of the Claimant access to their total monthly payroll from the day it became employer of labour up to the date of this judgement, for the purpose of assessing the 1st Defendant’s minimum monthly contribution of 1.0 percent of its total monthly payroll from the day it became employer of labour.

Relief 7 is for, an order directing the Defendant to pay into the Employees’ Compensation Fund 10% of their 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 its total monthly payroll from July, 2011 up to date into the Employees’ Fund managed by the Claimant.

This relief is predicted on issue 4 determined in the affirmative by this court to the effect that by Section 39(2) of the Employees’ Compensation Act, 2010 an employer that fails to comply with sub-section (1) of Section 39, 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 payroll, assess and levy on that estimate and the employer is bound by it. In other words, the Act provides the Board exclusive power to determine the percentage the defaulter is required to pay.

This court makes an order directing the Defendants to pay into the Employees’ Compensation Fund 10% of their total monthly payroll from the day it became employer of labour up to date as penalty for default in failing to cause to be furnished to the Claimant complete and accurate total monthly payroll from the day it became employer of labour up to date, and for failure to make minimum monthly contribution of 1.0 percent of its total monthly payroll from day it became employer of labour up to date into the Employees’ Fund managed by the Claimant.

Relief 8 is for: An Order directing the Defendant to pay into the Employees’ Compensation Fund 10% interest on its total monthly payroll from July, 2011 up to date.

Order 47 Rule 7 of the Rules of this Honourable court, 2017, stipulates that the Court may at the time of delivering judgment or making the order give direction as to the period within which payment is to be made and may order interest at a rate not less than 10% per annum.

In view of the foregoing, I take into account the fact that this court has awarded 10% default fee to be paid from the period the Defendants became employer of labour. Consequently, this court is inclined not to exercise discretion with regards to making a further penalty to date from same period having granted relief 7 which is the award of 10% of their total monthly payroll from the day it became employer of labour up to date in favour of the claimant, as granting same would amount to jeopardizing  the defendants.

For sake of clarity, relief 8 is granted to the effect that this court makes an order that any monetary award made in favour of the Claimant is to be paid within 30 days of the delivery of this judgment and upon the default, the said monetary award shall attract interest at a rate of 10% per annum.

Relief 9 is for, the sum of N5, 000,000.00 (Five Million Naira) only for cost of litigation.

A court has an absolute and unfettered discretion to award or refuse costs in any particular case but I’m not oblivious of the fact that in the exercise of the discretion of the court to award cost or not such discretion is to be exercised judicially and judiciously, as that has been the decisions of the court in a plethora of cases. The court in the case of Theobros Auto Link Ltd v. B.I.A.E. Co. Ltd (2013) 2 NWLR (Pt. 1338) 337 held that:

The award of cost is strictly within the discretion of the court. However, such discretion must be judicially and judiciously exercised. It is the materials or facts placed before the court that aids it in exercising its discretion properly.

See also the case of Maya v Oshontokun (2001)11, NWLR PT723 P62 at85 paras F Where the Court of Appeal held that a successful party is entitled to cost which should not be denied except for good reasons.

It is trite that costs follow event in Litigation and in view of the fact that the Claimant is the successful party in this suit and it is upon this ground that I find that the Claimant is entitled to cost. The defendants are directed to pay cost of N250, 000.00 in favour of the Claimants.

In the final analysis, the case of the Claimant succeeds.

Judgment is entered, accordingly.

 

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HON. JUSTICE S. A. YELWA

(JUDGE)