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 IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP: HON. JUSTICE P. I. HAMMAN ------- JUDGE

DATE: THURDAY 17TH OCTOBER, 2024               SUIT NO: NICN/YEN/36/2022

BETWEEN:

NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD --- CLAIMANT

AND

POTTERS TOUCH HIGH SCHOOL ------------------- DEFENDANT

JUDGMENT

 

1.1.         This case was filed by the claimant on the 5th day of December, 2022, and claims the following reliefs against the Defendant:

 

1.     A Declaration 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 the Defendant’s total monthly payroll.

 

2.     The sum of SEVEN HUNDRED AND THIRTY SIX THOUSAND, FOUR HUNDRED AND SEVENTY SIX NAIRA (N736,476.00) ONLY, being arrears of Defendant’s minimum contribution of 1.0% of the total monthly payroll from January, 2017 to November, 2022 into the Employees’ Compensation Fund managed by the Claimant.

 

3.     AN ORDER compelling the Defendant to keep at all times, with the Claimant complete and accurate particulars of the Defendant’s payroll from January, 2017 until judgment and thereafter.

 

4.     AN ORDER compelling the Defendant to compute/calculate and make a monthly minimum contribution of 1.0% of the total monthly payroll from January 2017 until judgment and thereafter, into the Employees’ Compensation Fund managed by the Claimant.

 

5.     30% interest on the total sum from January, 2017 until judgment.

 

6.     The sum of Three Million, Five Hundred Naira (sic) (N3, 5000,000.00) only for cost of litigation.

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

 

1.2.         It is pertinent to note that despite the service of the Originating Processes in this suit on the Defendant on the 13th day of December, 2022, the Defendant did not file any process in defence of the suit.

 

1.3.         The Claimant opened her case on the 20th day of March, 2024 when her sole witness Babalola Hope (a Senior Manager) testified and concluded her evidence in chief on the 16th day of April, 2024. The witness identified and adopted her deposition filed on the 5th of December, 2022. The following documents were tendered by the witness and admitted by the Court:

 

1.     The Employees’ Compensation Act, 2010 ------ exhibit CW1.

2.     The Defendant’s Certificate of Incorporation dated 14th April, 2015 --- exhibit CW2.

3.     The Registration of Employer Form dated 12th August, 2016 ------- exhibit CW3.

4.     Zenith Bank Plc deposit slip with No. 7017155 --- exhibit CW4.

5.     The Employees’ Compensation Scheme Official Receipt dated 18th August, 2016 ----- exhibit CW5.

6.     The Employer’s Schedule of Payment (Actual) with No. 1104062916 ----- exhibit CW6.

7.     The Zenith Bank Plc deposit slip with No. 6934853 --------- exhibit CW7.

8.     The Employees’ Compensation Scheme Official Receipt dated 16th September, 2016 ------- exhibit CW8.

9.     The Employer’s Schedule of Payments (Actual) with No. 1104062916 -------- exhibit CW9.

10.            The Notice of Default for Non-Compliance dated 4th April, 2022 ---- exhibit CW10.

11.            The Reminder for default compliance with ECA contribution dated 3rd June, 2022 ------ exhibit CW11.

12.            The Pre-Legal action notice dated 27th July, 2022 ------ exhibit CW12.

 

1.4.         It is apposite to note that when the defendant failed and neglected to appear to cross-examine the witness despite service of Hearing Notice on the Defendant, the Court foreclosed the defendant from cross-examining the witness on the 25th of April, 2024.

 

1.5.         The defendant again failed to appear to defend the suit despite service of Hearing Notices on the Defendant. The Court consequently foreclosed the defendant from defending the suit on the 23rd day of May, 2024, and ordered the parties to file their final written addresses. While the claimant’s final written address was filed on the 28th of May, 2024, the Defendant did not file any final written address in the suit. The Claimant’s Counsel Dagogo Douglas Koko adopted the claimant’s final written address on the 18th of July, 2024.

 

THE CASE OF THE CLAIMANT:

2.1.    The Claimant avers that as a statutory body charged with the management and administration of the Employees’ Compensation Fund it introduced the Employees’ Compensation Scheme to the Defendant and requested the Defendant to register with the scheme as required by law. That the defendant registered with the Scheme and paid the sum of Eighty One Thousand, Eight Hundred and Sixty Four Naira (N81, 864.00) on the 17th of June, 2016 representing 1% of the Employees’ Compensation Scheme Contribution for the period of August 2015 to March 2016. The defendant also on the 16th of September, 2016 paid the sum of Sixty One Thousand, Three Hundred and Ninety Eight Naira (N61, 398.00) only to the Employees’ Compensation Fund being 1% of the Employee’s Compensation Scheme Contribution for the period April, 2016 to September, 2016. The defendant also submitted to the Claimant a schedule of payment.

 

2.2.    According to the claimant, the defendant failed to furnish the claimant with monthly payroll for the period of January, 2017 to November 2022 to enable the claimant assess or compute the actual payroll of the Defendant’s employees despite the demand notice for default in payment dated 4th April, 2022, and the reminder letter dated 3rd June, 2022. The claimant has therefore assessed the defendant based on the last assessment of September, 2016 which is Ten Thousand, Two Hundred and Thirty Three Naira (N10, 233.00) only.

 

CLAIMANT’S SUBMISSIONS:

 

3.1.         The Claimant’s Counsel submits these two (2) Issues for determination:

 

1.     Whether given the facts of this case as contained in the statement of fact, this Court is seized of jurisdiction to adjudicate over this case.

 

2.     Whether having determined the question of jurisdiction, this Honourable Court can exercise its inherent powers to deliver judgment on this case, even when the evidence adduced by claimant are unchallenged.

 

3.2.         It was submitted on Issue one (1) that, jurisdiction is the bedrock and foundation of all judicial proceedings, hence any decision reached without jurisdiction is null and void and of no legal effect whatsoever. That the jurisdiction of a Court is prescribed by the statute or Constitution creating the Court, and no court assumes jurisdiction except it is statutorily prescribed. See GTB V. Toyed (Nig) Ltd and Anor (2016) LPELR-4181 and Gafar V. Government of Kwara State (2007) All FWLR (Pt. 360) 1415.

 

3.3.         That by section 7 of the National Industrial Court Act 2006 and section 254C(i) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), this Honourable Court has the exclusive jurisdiction to hear and determine this suit. That a Court is competent to exercise jurisdiction over a matter when the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case comes before the Court by due process of law upon fulfillment of any condition. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341 and Osadebay V. Attorney-General of Bendel State (1991) 1 NWLR (Pt. 169) 525.

 

3.4.         With respect to Issue two (2), it was submitted that, where relevant evidence is not challenged or debunked, such evidence remains good and credible evidence that may be used in the just determination of a dispute. That since the defendant did not file any defence to the suit, the defendant is deemed to have admitted the case of the Claimant, and this Honourable Court is at liberty to act on the unchallenged evidence of the Claimant. See Nasir V. Civil Service Commission Kano State (2010) All FWLR (Pt. 515) 195, Bernard Amasiki V. Registrar-General Corporate Affairs Commission (2010) All FWLR (Pt. 541) at 1406 and Olujinle V. Adeagbo (1988) 2 NWLR (Pt. 75) 238; (1988) 1 NSCC (Vol. 19) 624.

 

3.5.         The Court was urged to enter judgment in favour of the Claimant and grant all the reliefs sought in the suit.

COURT’S DECISION:

 

4.1.         I have carefully considered the pleadings, evidence and submissions of the learned Counsel for the Claimant. I have seen that the learned Counsel to the Claimant formulated two (2) Issues for determination in this suit. The first Issue relates to the jurisdiction of this Honourable Court to entertain the suit. I do not see the need for this Issue considering that the suit is not defended, and there is no challenge to the Court’s jurisdiction. Since the jurisdiction of the Court is not in issue in this suit, I hold the view that the Claimant’s Issue one (1) is of no moment. The Court shall therefore determine this suit on the basis of the Claimant’s Issue two (2) which is: Whether this Honourable Court can exercise its inherent powers to deliver judgment on this case, even when the evidence adduced by Claimant are unchallenged.

 

4.2.         The case of the claimant is hinged on the provisions of section 33 of the Employees’ Compensation Act, 2010, with respect to the statutory obligations of employers of labour (in this case the Defendant) to make a monthly minimum contribution of 1.0 percent of the total monthly payroll into the Employees’ Compensation Fund established under section 56 of the said Act. In view of the importance of section 33 of the Employees’ Compensation Act (exhibit CW1) to these proceedings, it is apposite to reproduce same for the purpose of clarity.

 

“33(1) 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.

(2) Without prejudice to the provisions of sub-section (1) of this section, the Board shall from time to time, make regulations prescribing-

(a) the categorization of risk factors of each class or sub-class of industry, sector or workplace and the amount of contributions to be made into the Fund; and

(b) for different assessment rates applicable to each class and sub-class of industry, sector or workplace mentioned under paragraph (a) of this sub-section.”

 

4.3.         It is in evidence that, the defendant as a registered organization and an employer of labour (see exhibit CW2) enrolled with the Employees’ Compensation Scheme managed by the Claimant, and in fulfilment of her statutory obligations paid the sums of N81,864 on the 17th of June, 2016 as 1.0% contributions for August 2015 to March 2016 and also N61,398 on the 16th of September, 2016 as 1.0% contributions for April 2016 to September, 2016. The evidence of the registration and the payments can be gleaned from exhibits CW3, CW4, CW5, CW6, CW7, CW8 and CW9.

 

4.4.         When the defendant reneged and failed to make available to the Claimant its monthly payroll for January 2017 to November, 2022 for the purposes of assessment and computation despite notices of default and pre-action notice sent to the defendant vide exhibits CW10, CW11 and CW12, the claimant instituted this suit praying the Court to order the payments by the defendant on the basis of the last assessment in September, 2016 in the sum of N10,233.00.

 

4.5.         I have seen from the avalanche of the evidence produced by the Claimant which is not challenged, that the Claimant gave the defendant sufficient notice to make available to the claimant its monthly payroll for the purpose of assessment and computation. Section 39 of the ECA imposes a further obligation on the defendant as an employer to furnish the claimant complete and accurate particulars of the defendant’s payrolls. Section 39 provides as follows:

 

“39(1) 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 of general application or any decision of the Board limited to a specific employer, an estimate of the probable amount of the payroll of each of the employer’s industries within the scope of this Act, together with any further information required by the Board; and

(iii)          Provide signed copies of 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.

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

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

(4) If an employer does not comply with sub-section (1) of this section, or if a statement made in pursuance of its requirements is not 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 of 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.”

  

4.6.         Having evaluated the evidence on record vis-à-vis the provisions of the Employee’s Compensation Act, 2010 already referred to in this judgment, I have come to the irresistible conclusion that the Claimant has established its case as required under sections 131, 132,133 and 134 of the Evidence Act. I say this because the obligations imposed on the defendant under the ECA are sacrosanct and mandatory. They must be obeyed as no Court or tribunal can override such statutory stipulations of the law.

 

4.7.         It is also apposite to make the point that, the defendant did not defend the suit despite the opportunities extended to the defendant by the Court. Since the suit is not challenged or controverted, I hold that the defendant is deemed to have admitted the claims in this suit, and this Court shall therefore proceed to act on the unchallenged pleadings and evidence which are not implausible or unbelievable. See the case of O.A.N. Overseas Agency Nigeria Ltd V. Bronwen Energy Trading Limited and Others (2022) LPELR-57306(SC), where the Apex Court per Peter-Odili, JSC held as follows at pages 30 - 31 paras F- E of the report: “This averment was never either controverted by the Appellant nor denied. It was clearly also deemed as admitted in law. Further on this point, it is a firmly settled principle of law that facts admitted need no further proof and same is deemed established. See NAS Ltd V. UBA Plc (2005) 14 NWLR (Pt. 945) 421 @ 435 A-B, where the Supreme Court, per Akintan JSC, held as follows: “The position of the law is that facts admitted require no further proof.” This Court in the case of Oforlete V. State (2000) 12 NWLR (Pt. 681) 415 held that where there is unchallenged and uncontroverted evidence, the Court has a duty to act on it. Interestingly, this same material piece of uncontroverted evidence was picked from the witness statement of the 1st Respondent’s witness and restated by the Appellant in paragraph 4.25 of the Appellant’s Brief. This evidence was uncontroverted and still unchallenged under cross-examination. Failure to cross-examine on a matter is acceptance of the fact. See Gaji V. Paye (2003) 8 NWLR (Pt. 823) 583 @ 605. No further proof is required.” See also the cases of Chief Taofik Ebelamu and Others V. Alh Muhammed Yaya Alayande and Another (2023) LPELR-59662(CA) and Martchem Industries Nigeria Limited V. M. F. Kent West Africa Ltd (2005) LPELR-1842(SC) where it was also held that where evidence is unchallenged the Court has the duty to act on same.

 

4.8.         In the final result, the lone Issue is hereby resolved in favour of the Claimant. Reliefs 1, 2, 3 and 4 are hereby granted. Reliefs 5 and 6 are refused. On relief 5 for 30% interest on the total sum from January, 2017 until judgment, the Claimant failed to prove that this is a statutory requirement under the ECA. The punishments for default on the part of any employer are clearly stated in section 39(4) of the ECA. There is no proof of pre-judgment interest in this suit. For relief 6 for the sum of N3, 500,000.00 as cost of litigation, I have seen that the claimant as a public institution did not pay any fee for filing of court processes. In addition, the learned Counsel that prosecuted this suit is a Legal Officer (an employee) of the Claimant. Having therefore not farmed out the case to a private legal practitioner, I cannot see the basis for the award of cost of litigation as none was expended in the suit. For the avoidance of any doubt, the Court hereby declares and orders as follows:

 

1.     It is hereby declared 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 the Defendant’s total monthly payroll.

 

2.     The defendant is hereby ordered to pay the sum of Seven Hundred and Thirty Six Thousand, Four Hundred and Seventy Six Naira (N736,476.00) only, being arrears of Defendant’s minimum contribution of 1.0% of the total monthly payroll from January, 2017 to November, 2022 into the Employees’ Compensation Fund managed by the Claimant.

3.     The defendant is hereby ordered and compelled to keep at all times, with the Claimant complete and accurate particulars of the Defendant’s payroll from January, 2017 until judgment and thereafter.

 

4.     The defendant is hereby ordered and compelled to compute/calculate and make a monthly minimum contribution of 1.0% of the total monthly payroll from January 2017 until judgment and thereafter, into the Employees’ Compensation Fund managed by the Claimant.

 

5.     The terms of this judgment shall be complied with within 30 days from today, failing which it shall attract interest at 10% per annum until it is fully liquidated.

 

Judgment is entered accordingly. I make no order as to costs.

 

 

Hon. Justice P. I. Hamman

Presiding Judge

 

 

APPEARANCES:

 

Dagogo Douglas Koko with P. N. Okiakpe for the Claimant.

No representation for the Defendant.