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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MINNA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 10th December 2024                                    

SUIT NO: NICN/MN/06/2024

 

Between:

 

Nigeria Social Insurance Trust Fund Management Board           -           Claimant

 

And

 

St. Andrews International School                                                        -           Defendant

 

Representation:

C. J. Yusuf for the Claimant

A. S. Akaah for the Defendant

 

  JUDGMENT

The claimant instituted this suit on 27th September 2024 by means of Originating Summons wherein the claimant sought the determination of these questions:

1.         Considering the extant provisions of Sections 33 (l) and 73 of the Employees' Compensation Act 2010, whether 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 her 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, and the Defendant does not make a minimum monthly contribution of 1.0 percent of her total payroll to the claimant, the Defendant shall be liable to imprisonment or fine, or both imprisonment and fine in accordance to Section 71 of the Employees' Compensation Act, 2010.

3.         If the questions above are resolved in favour of the Claimant what order or orders/are appropriate or deemed fit and necessary to make in the circumstances of this case.

 

Upon the determination of the questions, the claimant sought the following reliefs:

1.      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 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 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 her monthly payroll from July 2010 up to date and thereafter.

3.      An order compelling the defendant to keep at all time, 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 Defendant to compute/calculate and make a minimum monthly contribution of 1.0 percent of the total monthly payroll from July, 2011 up to ate and thereafter into the Employees' Compensation Fund managed by the claimant.

5.      An order granting entry to officers of the claimant into the workplace of the defendant located at St. Andrews International School, Eastern by-pass Minna for the purposes of inspecting and examining the defendant payrolls and other document necessary for assessment of defendant minimum monthly contribution of 1.0 percent of total monthly payroll from July 2011 up to date and thereafter.

6.      An order compelling the defendants to grant officers of the claimant access to the defendant payroll for the purposes of inspecting and examining the defendant payrolls and other documents necessary for assessment of defendant minimum monthly contribution of 1.0 percent of total monthly payroll from July 2011 up to date and thereafter.

7.      An order directing the defendant to pay into the employees' compensation fund 40% of the total monthly payroll from July 2011 up to date as penalty for default in failure to make minimum monthly contribution of 1.0 percent of the total monthly payroll from July 2011 up to date.

8.      An order directing the defendant to pay into the Employees' Compensation fund 10% interest on the defendant total Monthly payroll from July 2011 up to date.

9.      The sum of N2,000,000 for cost of litigation.

 

CLAIMANT’S CASE

The Originating Summons is supported with an affidavit and written address. The affidavit was deposed to by Bako Joshua, a Senior Manager in the Compliance Department, Minna Branch Office of the Claimant. He averred that upon the commencement of the Employees' Compensation Act, 2010, the claimant held a meeting with the Nigeria Labour Congress and Nigeria Employers Consultative Association where it was agreed that payment by employers of contributions into the Employees' Compensation Fund as prescribed by the Act should commence in July 2011. The Defendant operates the business of a School at David Mark Road, Minna, Niger State and it has employees it pays on a Monthly basis. The Defendant has been operating the business since the year 2010. The defendant employed Teachers and Administrative Staff and as such the defendant is one of the employers in Minna to whom the Claimant introduced the Employees' Compensation Scheme to and it was enjoined to key into the Scheme as required by the Employees' Compensation Act, 2010 for the benefit of her Employees. Since the time of introduction of the scheme to the defendant, it has failed or refused to register and did not make minimum monthly contribution of 1.0 percent of her total monthly payroll from July 2011 up to date into the Employees' Compensation Fund managed by the Claimant. Despite repeated visits and demands to the Defendant to remit the mandatory 1 percent total monthly payroll contribution to the Employees' Compensation Fund Managed by the Claimant, the Defendant willfully neglected to make the contribution and this has greatly impacted on the Claimant's mandate to provide a fair, adequate and guaranteed compensation for employees for injury, disease and death arising out of or in the course of employment.

 

The deponent stated further that C.J. Yusuf told him that by virtue of Section 73 of the Employees' Compensation Act 2010, the Defendant is an employer, having contracted some persons as staff of its school and being an employer, the Defendant is under a statutory obligation pursuant to Section 33 (l) of the Employees' Compensation Act, 2010 to make a minimum monthly contribution of 1 percent of his total monthly payroll into the Employees' Compensation Fund managed by the Claimant. He was also told that considering the provisions of Section 71 of the Employees' Compensation Act 2010, where the Defendant does not comply with any of the provisions of the Act, it is be liable to imprisonment or fine or both imprisonment and fine.

 

In paragraphs 11 and 12 of the affidavit, the deponent repeated the reliefs sought by the claimant in the Originating Summons. Section 115 [2] of the Evidence Act 2011 prohibits affidavits from containing prayers, among other prohibited content. In addition, an affidavit is not the proper process through which to make claims in a suit before the court. The entire paragraphs 11 and 12 of the affidavit and the claims sought therein are not competent. These paragraphs of the affidavit are struck out.

 

WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS

In the written address in support of the Originating Summons, two issues were submitted for determination, to wit:

1.      Whether by the construction of the extant provisions of Sections 73 of the Employees' Compensation Act 2010, the Defendant is an employer within the definition of the Act.

2.      Whether by the construction of the extant provisions of Sections 33(1) of the Employees' Compensation Act 2010, the Defendant is obligated to make a minimum monthly contribution of 1 percent of its total monthly payroll from July 2011 from when the Employees 'Compensation Act 2010 became operational up to date into the Employees Compensation Fund managed by the Claimant.

 

Learned counsel for the claimant argued the issues together and he started by reproducing the provisions of Sections 33 (l) and 73 of the Employees' Compensation Act 2010. Counsel submitted that the Defendant operates as an employer and has operated as a business since the year 2011 with persons working for her under a contract of employment as Teachers and Administrative Staff. By the provisions of Section 73 of the Employees' Compensation Act 2010, the Defendant is an employer and being an employer, the defendant is mandatorily required, in Section 33 (l) of the Act, to make a minimum monthly contribution of 1 percent of its total monthly payroll into the Employees' Compensation Fund established under Section 56 (l) of the Act. However, the Defendant is in arrears of payment of contributions since 2011 and several visits and demands have been made by the Claimant to the defendant in respect of payment of contribution and submission of total monthly payroll but Defendant has neglected to make the minimum monthly contribution and it is breach of the provisions of the Employees' Compensation Act. Counsel urged this court to resolve the issues for determination in favour of the Claimant and grant the reliefs sought.

 

COUNTER AFFIDAVIT OF THE DEFENDANT

In defence of the suit, the defendants filed a counter affidavit and written address on 26th March 2024 but deemed filed on 13th May 2024. The counter affidavit was deposed by David Garba, a litigation secretary in the law office of counsels for the defendant. The deponent averred that the Defendant is a missionary school affiliated with Anglican Church, Diocese of Minna and being a missionary school, the defendant does not aim at making profit as most of its students are on scholarships. The Defendant did not enter into contract of employment with its teachers or administrative staff, rather the teachers and administrative staff of the Defendant were engaged by the Parents Teachers Association while some of the teachers are corps members undergoing their compulsory one-year National Youth Service with the defendant. The teachers and administrative staff engaged by the Parents Teachers Association are being paid salary by the Parents Teachers Association while the corps members are being paid by the Federal Government.

 

The deponent stated further that it is untrue that the Claimant introduced the Employees' Compensation Scheme to the Defendant because the Defendant is not an employer under the scheme. The Defendant is not under any legal obligation to register or make a minimum monthly contribution of 1 percent of its total monthly payroll from July up to date into the Employees' Compensation Fund managed by the Claimant as it did not enter into any contract of employment with its teachers and does not pay them monthly salary or any salary at all. For these reasons, the defendant is not liable to imprisonment or fine.

 

In paragraph 3 [q] of the counter affidavit, the deponent proceeded to set out some reliefs the defendant claims in this suit. For the same reasons I struck out paragraphs 11 and 12 of the claimant’s affidavit, I also strike out paragraph 3 [q] of the defendant’s counter affidavit.

 

WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT

In the written address in support of the counter affidavit, learned counsel for the defendant submitted this issue for determination: Whether in the circumstances of this case, the Claimant is entitled to the reliefs it seeks as contained in the originating summons? In arguing the issue, learned counsel for the defendant set out the definition of “Employer” in Section 73 of Employees Compensation Act and in the case of FCDA V. The Governing Council of the National Industrial Training Fund (2009) LPELR- 8148(CA) to submitted that the Defendant is not an Employer within the meaning of the Employees Compensation Act and it is therefore not liable to the Claimant. Counsel submitted further that the teachers and administrative staff working in the defendant were not employees of the defendant and the Defendant is not responsible for the payment of wages or remuneration to the teachers and administrative staff rendering their services in the Defendant school. The Defendant is therefore not an employer and the Claimant is not entitled to all or any of its reliefs against the Defendant.

 

COURT DECISION

The first question the claimant wants this court to determine in the Originating Summons involves the construction of the provisions of sections 33[1] and 73 of the Employees Compensation Act (ECA) 2010 and therefrom resolve whether the defendant is an employer who is obligated to make monthly contributions of 1% of its total monthly payroll into the Employees Compensation Fund [ECF].

 

Section 33 (1) of the ECA provides thus:

“Every employer shall, within the first 2 years of the commencement of this Act, make a minimum monthly contribution of 1.0 percent of the total monthly payroll into the Fund.”

 

Section 73 of the ECA defines an "employer" this way

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

The provision of section 2(1) of the Act is also noteworthy. It provides thus:

“Subject to the provisions of sections 3 and 70 of this Act, this Act shall apply to all employers and employees in the public and private sectors in the Federal Republic of Nigeria.”

 

By the above provisions of the ECA, the ECA applies to all employers in both public and private sectors and one of the applicable provisions of the ECA to employers is the obligation to make a minimum monthly contribution of 1% of the total monthly payroll into the ECF. The ECA had gone further to define who an employer, to whom the Act is applicable, is. An employer is a person or organization or agency who has entered into a contract of employment to employ any other person as an employee or apprentice. Thus, for the provisions of the Act to be enforced against any person or organization, it has to be established first that the person or organization is an employer within the meaning of the Act. Once it is so established, such an employer is bound to comply with the provisions of the ECA with regards to payment of minimum monthly contribution of 1% of the total monthly payroll into the ECF.

 

In the affidavit in support of the Originating Summons, it was averred that the Defendant has been operating a School as a business since 2010 and it employed teachers and administrative staff who it pays salary on Monthly basis. In the written address of the claimant, learned counsel for the claimant submitted that the teachers and administrative staff are working for the defendant under a contract of employment and this makes the defendant an employer within the meaning of the ECA. On the other hand, it was averred in the counter affidavit of the defendant that the defendant is a missionary school and did not enter into a contract of employment with its teachers or administrative staff but it is the Parents Teachers Association (PTA) of the school that the employed teachers and other staff of the school and also pays the salaries of the staff. It was also averred that some of the teachers are corps members undergoing their compulsory one-year National Youth Service with the defendant and the corps members are being paid by the Federal Government. The summary of what was deposed to in the counter affidavit of the defendant is that the defendant does not have any staff it employed and does not pay salaries to any staff. According to the defendant, other than the corps members teaching in its school, the teaching and administrative staff of the school are employees of the school’s PTA.

 

The defendant has not denied the fact that some persons work in its school as teaching and administrative staff. What it has denied is having any contract of employment with those workers. The claimant did not file a further affidavit to respond to the facts deposed to in the counter affidavit. In effect, the claimant has not challenged or controverted the facts in the counter affidavit that the persons working as teaching and administrative staff in the defendant are not the employees of the defendant or have contract of employment with the defendant. The allegation that a person is in a contract of employment with another person or persons is a matter of fact to be proved by evidence. Accordingly, it is the duty of the claimant who alleged that the defendant employed teachers and administrative staff to prove it. The claimant has not adduced such proof or evidence. The claimant’s averment in its affidavit that the defendant operates with persons under a contract of employment is no more than an assumption. The mere fact that there are workers working in the defendant school does not imply that the workers have contract of employment with the school. Particularly that the defendant has explained that the workers were engaged by the PTA who also pays the workers. In the absence of any evidence to dislodge this averment of the defendant, it is legally correct that the workers contract of employment is with the PTA who engaged them and also pays their agreed salaries.

 

By Section 33(1) of the ECA, an employer is expected to remit 1% of its total monthly payroll into the ECF. Where an organization alleged to be an employer is not shown to have entered into contract of employment with individuals working with it and does not by itself pay salaries to persons working with it, as in this case, no justification exists upon which to require it to make remittances into the ECF.

 

The claimant has not shown that the defendant entered into a contract of employment to employ any person as an employee or apprentice. The defendant, having not been shown to be an employer within the meaning assigned to the term in Section 73 of the ECA, I do not find sufficient evidence to hold that the defendant is obligated to comply with Section 33[1] ECA. In the result, I resolve the questions in the Originating Summons in the negative and against the claimant. Consequently, I find that the claimant has failed to prove all the reliefs sought in the Originating Summons. This suit lacks merit and it is dismissed accordingly.

 

No order as to cost.

 

Judgement is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge