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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS DIVISION

HOLDEN AT LAGOS

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

THIS 10TH DAY OF JULY, 2024       SUIT NO: NICN/LA/178/2023

BETWEEN

NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD-                                                                     CLAIMANT

AND

1.     LIVINSTONE COLLEGE LIMITED (Doing business under the name and style of “Livingstone College”)

2.     THE GOVERNING COUNCIL, LIVINSTONE COLLEGE LIMITED, LAGOS                                           DEFENDANTS

PARTIES:

Parties absent

LEGAL REPRESENTATION

Folake  Smith Esq for the Claimant

I.K Ezekwem Esq for the Defendant

 

 

 

JUDGMENT

1.        Brief of the case:

1.0      By an Originating Summons dated and filed on the 23rd June, 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) and (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 the question above is in the affirmative, does the 1st Defendant has 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 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.

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 (0) and 39 (0) 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.

1.        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 20l1 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 No. 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 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.

I0.       AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit and expedient to make in the circumstances of this case.

2.        The Originating Summons is supported by a 28 paragraphs affidavit deposed to by one Anifowoshe Sikiru, 14 exhibits attached, and an accompanying written address of the learned counsel.

10.      The claimant’s counsel raised three issues for determination in the written address as captured herein after, in this judgment.

Upon service of the Originating Summons, the Defendant filed a memorandum of appearance and a counter affidavit of 24 paragraphs, deposed to by Staphane Solomon on 15th September, 2023, which is attached with Annextures, marked as Exhibits A-H and written address of learned counsel wherein the issues raised are those questions as set out for determination on the originating summons in this suit to which the defendants’ counsel argued them together.

11.      On the day fixed for hearing this matter, counsel adopted their respective written addresses hence this judgment.

(1) Submission of defendants’ counsel:

The defendant’s counsel filed a 23 paragraphs counter affidavit deposed to by Staphane Solomon with attachments exhibited as Exhibis A-H. Counsel contended they have attached a certificate of compliance with section 84 of the Evidence Act.  Learned counsel submitted in his written address that the claimant has failed to prove that the 1st Defendant is an employer under the Employees’ Compensation Act 2010, and that in order to succeed in a claim of this nature, the Claimant must prove the following:

a.     That the Defendant is an “employer” in the public or private sector in the Federal Republic of Nigeria;

b.     That the Defendant/employer is one of an individual, body corporate, Federal, State or Local Government or any of the government agencies; and

c.      That the Defendant/employer has entered into a contract of employment to employ any other person as an employee or apprentice.

4         Counsel referred this Court to Sections 73 and 2 of the Employees’ Compensation Act, 2010 and contended that in order to discharge the burden of proof placed on the Claimant, the Claimant merely relied on Exhibit NSITFMB 1, which Exhibits are details on Corporate Affairs Commission website conforming the 1st Defendant’s registration with CAC as a corporate body. The fundamental question counsel asked is are the facts contained in Exhibit NSITFMB 1 enough to prove the following?

a.     Whether the 1st Defendant operates a business since the year 2004;

b.     Whether the 1st Defendant has persons working for her under a contract of employment;

c.      Whether the 1st Defendant’s registration/incorporation with the Corporate Affairs Commission (CAC) enough to qualify her an employer as deposed to in paragraphs 5,6 and 7 of the Claimant’s Affidavit in Support?

5    Learned counsel submitted that  the answers to the above questions could be in the negative. Counsel maintained that in paragraph 7 of the Claimant’s Affidavit in Support, the Claimant referred to Exhibit NSITFMB1 as “details on the Corporate Affairs Commission website confirming the Defendants registration with the Commission. He argued that Exhibit NSITFMB1 was purportedly downloaded and printed out from the CAC website by the Claimant. The facts contained in Exhibit NSITFMB1 are statements in a document produced by a computer and he submitted that for the document to be admissible in evidence to prove the facts stated in it, Exhibit NSITFMB1, must fulfil the conditions prescribed under Section 84(2) of the Evidence Act, 2011 and also must be accompanied by a certificate signed by the maker of the document.

It is the submission of counsel that the claimant did not place any evidence before the court to prove that Exhibit NSITFMB 1, which is computer generated document satisfied the conditions prescribed under Section 84 of the Evidence Act 2011 for its admissibility. It is also not accompanied by the Certificate of Authentication, signed by the maker of the document. He referred this court to   case of Kubor v. Dickson (2013) 4 NWLR (pt. 1345) 577-578, paras D-E.

6  Learned counsel further submitted with respect to the fact of the incorporation or registration of the 1st Defendant with the Corporate Affairs Commission to wit he contended cannot be proved by Exhibit NSITFMB1. According to counsel, the position of the law is that the best evidence to prove the incorporation of a company is the production of the certificate of incorporation. He cited the case of Magbagbeola v. Sanni (2005) 11 NWLR (Pt. 936) at 251 paras. F-H where Supreme Court held that the best evidence of incorporation is the production of the certificate of incorporation, The addition of “Ltd” or “Plc” to the name  of the firm would not necessarily mean that it had been incorporated under the Companies and Allied Matters Act.

In the instant case, Counsel submitted that the Claimant who claims that Livingstone College was registered/incorporated by the Corporate Affairs Commission since 2004 has the duty to establish her claim but she failed to prove the incorporation under CAMA by the production of the certificate of incorporation. Counsel cited the case of Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558 and Section 131 and 133 of the Evidence Act 2011 to buttress his argument.

7  It is further submitted by counsel for the defendant that the Notice to Produce given by the claimant is out of place as the Defendants have denied Exhibit NSITFMB 1 which is not in their custody and therefore cannot produce the original or photocopy of what they don’t have. He cited the case of Abimbola v. State (2021) 17 NWLR (pt. 1806) 399 at 436, paras A-C.

Counsel further submitted that the claimant also failed to adduce any evidence to prove that the 1st Defendant has entered into a contract of employment to employ any other person as an employee or apprentice as required under Section 73 of the Employees’ Compensation Act 2010. The Defendants in paragraph 10 of their counter affidavit denied the existence of such employment relation as contended by the Claimant.

3  Submission of the claimant’s counsel:

The submissions of the claimant’s counsel is rooted in the written addresses of 23rd June, 2023 and the one dated 17th May, 2024 which basically accompany the Originating Summons and the Further and Better Affidavit of the claimant.

Counsel for the claimant by way of his oral submission stated that the originating summons dated 23/6/2023 and filed on the same day raise seven questions for the determination of this court consequently the claimant seeks for ten reliefs.

 Arguments are canvassed on the following issues:

Whether having regard to the facts and circumstances of the instant suit;

a.      The defendant is an employer of labour within the meaning of the Employees Compensation Act (ECA) 2010?

b.     Are the facts as contained in the affidavit evidence- in Exhibit NSITFMB 1 admissible in evidence?

8.        On the first issue for determination, counsel submitted that the Defendant is an ‘Employer’ within the meaning of the extant provisions of Sections 2(1), 33 and 73 of the ECA, 2010. The subject matter in contention borders on the Defendant/Applicants refusal to comply with the compulsory and statutory contribution to be made on behalf of their employees under the Employees’ Compensation Act 2010 (ECA 2010). The Employees’ Compensation Scheme is the scheme implemented under the Act to provide Compensation for employees (or their next of kin) who suffer from injuries, disabilities, disease or death arising out of or in the course of employment.

9.         Learned counsel submitted that the effect of the above provisions is that every employer of labour is mandated by law to make a minimum monthly contribution of 1.0 percent of the total monthly payroll into the fund. By the Act, the Fund is the employee’s compensation fund managed by the Nigeria Social Insurance Trust Fund Management Board and created pursuant to the Act into which shall be credited all moneys, funds, or contributions by employers for adequate compensation to employees or their dependants for any death, injury, disability, or disease arising out of or in the course of employment. From the originating processes, it is abundantly clear that the reliefs sought are predicated on the provisions of the Employees’ Compensation Act (ECA), 2010 due to the Defendants refusal to comply with his obligations as an employer under the ECA 2010.

10.      It is the submission of counsel that by the provisions of Section 73, 2(1) and 3 of the Employees’ Compensation Act 2010, it is evident that all employers and employees in private and  public sector in Nigeria with the exemption of members of the Armed Forces are under the ECA 2010. Hence, from the affidavit evidence in support of the Originating Summons, particularly the facts contained in Exhibit  NSITFMB 1, the Defendant operates as an employer, doing business under the name and style of LIVINSTONE COLLEGE and has operated as a Business prior to the commencement of Employees’ Compensation Act 2010 with staff currently in their employment. It is submitted that it is absurd for the Defendants to allege that they are not employers of labour whereas they have admitted to having staff in their employment particularly in paragraphs 17, 18 and 19 of their counter affidavit.

Counsel submitted that the claimant is responsible for the implementation of the Employees Compensation Act 2010, and in-charge of the following among others;

1.                 Collection of Contributions from employers.

2.        Payment of claims to employers, employees and next of kin as the case may be.

3.        The implementation of all responsibilities as prescribed by the Act particularly Sections 31 and 32.

Thus, where an employer fails to comply with the provisions of the Employees Compensation Act and fails to make mandatory contributions as prescribed by the Act, the Claimant has the power to prosecute the employer to comply with the Act so as to recover all due contributions.

11.       Learned counsel submitted on issue two that it is the general position of the law that all documents attached to an affidavit forms part of the affidavit in question.  Counsel referred the court to Hashim v. Aso Savings & Loans Plc (2022) LPELR-57061(CA); Counsel reiterated that the position remains the same as Exhibit attached to an affidavit need not comply with the provisions of Section 83 of the Evidence Act. Thus, being evidence already before the court, the formalities for its admissibility are dispensed with since being affidavit evidence, it has already been admitted in evidence before the court.

12.       Arising from the written addresses of learned counsel for the claimant, he formulated the following issues for determination to wit:

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, it is 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 caused to be furnished to the Claimant a complete and accurate estimate of the probable amount of the Defendant’s payroll from July, 2011  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 2011 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), (e), (d), (e), (f) and (g) of the Employees Compensation Act 2010, the Claimant or any of its officers or persons authorised 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 1st  Defendant’s payroll and other necessary documents with a view to ascertaining a proper assessment of contribution payable by the 1st Defendant.

13.       Learned counsel submitted that these issues will be argued together considering the fact that they are closely knitted. From the affidavit evidence especially the facts contained in Exhibit NSITFMB 1, the 1st Defendant has operated business since 2004 with persons working for her under a contract of employment as academic and non- academic staff. Therefore, by the provisions of Section 83 of the Employees Compensation Act 2010, the Defendant is for all intent and purposes an employer. 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, 2010, pursuant to Section 33(1) of the Act.

14.      Counsel submitted that it is clear that by Sections 38 and 40 of the Act, every employer shall cause to be furnished to the Claimant a complete and accurate estimate of the probable amount of the payroll of each employer’s industries within the scope of the Act. He added that by the claimant’s affidavit evidence that the 1st Defendant is in arrears of payment of contributions since July 2011, several visits and demands have been made by the claimant to the Defendants in respect of this, but the Defendants have neglected to make minimum monthly contributions and furnish the claimant with the total monthly payroll which is in breach of the provisions of Sections 53 and 54 of the Employees Compensation Act 2010.

15.       Learned counsel argued the three issues together considering the fact that they are closely knitted. From the affidavit evidence particularly the facts contained in Exhibit NSITFMB 1, the 1st Defendant has operated business since 2004 with persons working for her under a contract of employment as academic and non academic staff. Therefore, by the provisions of Section 83 of the Employees Compensation Act 2010, the Defendant is for all intents and purposes an employer. 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, 2010, pursuant to Section 33(1) of the Act.

4.         COURT’S DECISION

15.      I have carefully read through the processes filed and also listened to the arguments of counsel on both sides, 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 the authorities  cited in the written addresses. I’m of the view that the sole issue that could be all encompassing for the determination of this suit could be:

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 Defendant is an employer within the meaning of Employees’ Compensation Act 2010 and has wilfully neglected to cause to be furnished to the Claimant an estimate of the probable amount of the payroll of the Defendants from July 2011 up to date in accordance with the provisions of the Act and wilfully neglected to make a minimum monthly contribution of 1.0 percent of its total monthly payroll from July 2011 to date into the Employees Compensation Fund, managed by the Claimant.

16.      In resolving the issue, I find it apposite to start by stating that the resolution of the question before the court hinges 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.

However, let me quickly and briefly deal with the contention of the defence counsel where he raised the issues of noncompliance of Exhibit NSITFMB-1 which counsel respectfully submitted that it is a computer- generated evidence which ought to have met and satisfy the requirement of section 84 of the Evidence Act for it to be admissible in evidence. He argued that the document having not been accompanied by the certificate of authentication signed by the maker renders the document as it is, inadmissible. Furthermore, counsel maintained that the said Exhibit cannot be the means of proof of incorporation of the defendant at the CAC and finally that the Notice to produce given by the claimant of the Certificate of incorporation whereby such document is not in the defendant’s custody is of no moment.

17.       SECTION 84 (1) of the EVIDENCE ACT provides: In any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in sub- section 2 of this section are satisfied in relation to the statement and  the computer in question.

(2)      The conditions referred to, in subsection 1 of this section are as stated in (a),(b),(c) &(d), (3)(a),(b)(c)(d),(4)(a)(b)(c)(5)(a) &(b).

Section 84(2)(a)-(d) enumerated four conditions that must be satisfied before such piece of evidence becomes admissible in evidence. Exhibit NSITFMB-1 is relevant to the case and what determines admissibility is RELEVANCY as this is an originating summons. Admissibility is a rule of evidence. See SADAU V THE STATE 1968 1 ALL NLR124; OGUONZEE V THE STATE 1997 8 NWLR PT518 P566.

18.      Claimant’s counsel submitted that documents attached to an affidavit forms part of the affidavit and that it does not need to comply with the provision of section 83 of the Evidence Act. Section 83(1) “…..In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the conditions  in  sub-sections (a) & (b)are satisfied………………..

Provided the conditions that the conditions stated thereunder are satisfied. Objections cannot be raised against a document attached to an affidavit or  counter-affidavit because the question of admissibility does not arise in that circumstance. SEE: ADEJUMO V GOV OF LAGOS STATE  1970 ALL NLR 187. The Apex Court in NWOSU V IMO STATE ENVIROMENTAL SANITATION AUTHORITY 1990 2 NWLR PT 135 P608,735. The position of the law from these authorities has been extended to documents attached to to an affidavit in respect of an originating summons. See also JUKOK INT’NL LTD V DIAMOND BANK PLC 2016 6 NWLR PT 1507 P.55.

The Court of Appeal per Mbaba JCA in ILORIN EAST LGA V ALASINRIN 2012LPELR-800 held that; “….a document attached or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the court and to be used, once the court is satisfied that it is credible. Being already evidence before the court, the formality of certification for admissibility (if it requires certification) has been dispensed with. Of course, the reason for this is easy to adduce, the first, being that the affidavit evidence is already  evidence before the court, unlike pleadings which must be converted to evidence at the trial of which time issues of admissibility of an exhibit is decided. The second point is that is that an exhibited copy of a document attached to an affidavit must necessarily be a copy or secondary copy…it is therefore unthinkable to expect the exhibited photocopy to be certified by the adverse party before the court can attach probational value to it…”

19.      From the entire claim, 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 similarly provides elaborately for the scope, applicability and duty of the Nigeria Social Insurance Trust Fund Board.

20.      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.

21.      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

22.       In interpreting the provisions of the sections of the Employees Compensation Act, it is the rule as in any other Act or Law as stated in the case of AROMOLARAN V AGORO 2014 18 NWLR PT1438 P153 @189 PARAS E-H and also pp191-192 paras H-A  “…..the duty of the court is to interprete the words contained in the statute and not to go outside the clear words in search of an interpretation which is convenient to the court or to the parties in it’s process of interpreting the statute….”

The rule is that where words used in a statute are clear and unambiguous, the court will follow the literal rule of interpretation. In the case at hand the provisions of sections 32, 33, 34,36,39,40, 54,56and 73 of the Employees Compensation Act 2010 are very plain towards giving schedule of duty to the claimant in exercising it’s powers.

23.       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. 

24.      In support of the claimant’s case, the claimant annexed 14 exhibits and particularly relied on Exhibit NSITFMB 1 which is a copy of the Defendant’s details from the Corporate Affairs Commission website.

It is pertinent to note that the defendant in opposition submitted that it is the position of the law that the best evidence to prove the incorporation of a company is the production of certificate of incorporation. Paragraphs 20 and 21 of the Defendants’ counter affidavit described the nature of the 1st defendant’s employment relationship with her members which is different in all material particulars with the employment relationship alleged by the claimant, and that the oral evidence of the Claimant is not sufficient to prove that the 1st Defendant has persons under employment contract.

25.      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 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?

26.       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:

“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.

27.      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 [1993 No. 73.] and Section 3 of the said Act which provides thus:

1.     Section 10 (1) of th(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 that the claimant is empowered to administer funds.

The Nigeria Social Insurance Trust Act which provides that,

This Act shall apply in respect of 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.

28.       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”.

By the foregoing and notwithstanding the contention of the counsel for the 1st Defendant in his submissions and indeed subject to the interpretation of Section 73 of the Employees Compensation Act 2010 which provision I find so relevant and applicable to the 1st Defendant in my view, the 1st Defendant is an employer.

29.       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.

30.       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”.

31.      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 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.”

32.       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 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.

33.      Arising 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.

34.      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.

35.      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.

36.      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.

37.       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.

38.       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.

39.      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,

40.       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.

41.      By virtue of the sections of the Act 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 duties enumerated in the sections above in line with the authority vested upon it by the Act. It is the view of this court that, having regard to the combined provisions of Section 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. In the absence of any ambiguity from this provision, This court as such applies the provision in favour of the claimant.

42.      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 captured above, the appropriate order or orders to make are the order(s) sought for in the reliefs of the originating summons.

43.       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 the 1st Defendant’s total monthly payroll from July 2011, that is to say, when the Employees’ Compensation Act, 2010 became operational, up to date.

This issue is in pari pasu with issue number one above, which this court had earlier decided on in the affirmative. With regards to the claim that the Defendant has been in arrears for 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. By the provision of section 131 of the Evidence Act, 2011 as amended, it is the duty of the claimant who in this suit asserts the existence of arrears of contribution since July 2011 to prove that those facts exist. This was the emphasis made in the case of VEEPEE INDUSTRIES LTD V COCA INDUSTRIES LTD 2008 ALL FWLR PT 425 P665.

44.      Having considered issue number one 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 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.

45.      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.  Where the plaintiff on his own evidence fails to prove his claim for declaration, his claim must fail. See 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)

The above position of the law has long been captured in the case of TOKARI V MUTAWALE 2000 17NWLR PT 1752 P187-188 PARA H-B  in which it was decided that …When a plaintiff seeks for declaratory relief, he must rely on the strength of his own case and not on the weakness of the case of the defendant except the defendant’s case supports that of the plaintiff through evidence. The plaintiff must establish that he is entitled to the declaration sought.

46.      Relief one seeks for 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.

47.       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.

48.       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.

49.      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.

50.      In the forgoing it is the view of this court that relief 2 is granted to the effect 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.

Issue 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.

51.      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 succeeds as this court hereby 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.

52.       Issue 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.

53.      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.

54.      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 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 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 Defendant’s minimum monthly contribution of 1.0 percent of its total monthly payroll from July, 2011 up to date and thereafter.

55.       I can recount that this court had in resolving question 6 stated that by 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 empowers 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 relief 5 & 6 is 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 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 Defendant’s minimum monthly contribution of 1.0 percent of it’s total monthly payroll from the day it became employer of labour up to the date of this judgement.

56.       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.

57.      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, 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.

58.      This relief is predicated on issue 4 which is determined in the affirmative  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.

59.      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 the day it became employer of labour up to date into the Employees’ Fund managed by the Claimant.

60.      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.

61.       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  declines 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 double jeopardy from the same facts of issue.

62.      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.

63.      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:

64.      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.

It is trite that costs follow event in Litigation and a successful party is entitled to cost which should not be denied except for good reason as was held by the Court of Appeal in MAYA V OSHONTOKUN 2001 11 NWLR PT723 P62 @ 85 PARAS F. Now, 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 N200,000.00 in favour of the Claimants.

65.      In the final analysis, the case of the Claimant is found to be meritorious, to that extent, these reliefs are accordingly granted by this court.

 

Judgment is accordingly entered.

 

 

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HON. JUSTICE S. A. YELWA

(JUDGE)