IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, PhD

 

DATE: 22 OCTOBER, 2025                         SUIT NO: NICN/AWK/10/2024

 

 

BETWEEN

Nigeria Social Insurance Trust

Fund Management Board                                               -                  Claimant

 

AND

Nicholas Suites & Garden Ltd                              -                 Defendant  

 

REPRESENTATION

Adaeze Mbakwe, Esq., for the Claimant.

F.C. Ifezue, Esq., for the Defendant.

 

                                                JUDGMENT

INTRODUCTION

1.                 The Claimant filed an originating summons dated 11^th January 2024. The Originating Summons is supported by an affidavit of 18 paragraphs deposed to by Chukwuma Robert Obi an Officer 1 in the claimant’s company.

 

2.                 The claimant prays for the following reliefs;

1.     A declaration that the defendant is an employer within the context and meaning of the Employees’ Compensation Act 2010 and by so being, obligated to make a minimum monthly contribution of 1.0 percent of defendant’s total monthly payroll from January, 2014 up to date and thereafter into the Employees Compensation Fund Managed by the claimant.

2.     A declaration that the defendant being an employer within the context and meaning of the Employees’ Compensation Act 2010 is obligated to cause to be furnished to the claimant complete and accurate particulars of the defendant’s total monthly payroll from January, 2014 up to date and thereafter.

3.     An order compelling the defendant to keep at all times, with the claimant, complete and accurate particulars of the defendant’s payrolls from January, 2014 up to date and thereafter.

4.     An order compelling the defendant to compute/calculate and make a minimum monthly contribution of 1.0 percent of the total monthly payroll of the defendant from January, 2014 up to date and thereafter into the Employees Compensation Fund Managed by the claimant.

5.     An order granting entry to officers of the claimant into the workplace of the defendant situate at 24, New Nkisi Road, GRA Onitsha, Anambra State for purposes of inspecting and examining the defendant’s minimum monthly contribution of 1.0 percent of the total monthly payroll from January, 2014 up to date and thereafter.

6.     An order compelling the defendant to grant officers of the claimant access to the defendant’s total monthly payroll from September, 2018 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 January, 2014 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 January, 2014 up to date as penalty for default in failing to cause to be furnished to the claimant complete and accurate total monthly payroll from January, 2014 up to date, and for failure to make minimum monthly contribution of 1.0 percent of the total monthly payroll from January, 2014 up to date into the Employees Compensation Fund Managed by the claimant.

8.     An order directing the defendant to pay into the Employees Compensation Fund 10% interest on the defendant’s total monthly payroll from January, 2014 up to date.

9.     The sum of Two Million Naira (?2,000.000.00) only as cost of the action covering the cost of Legal Fees (?1,000,000.00) cost of service of Notices (?400,000.00), Cost of Production and Service of the Court processes (?400,000.00) and other ancillary costs (?200,000.00).

 

3.     The defendant filed a Notice of Preliminary Objection and also filed counter affidavit to the originating summons.

 

CASE OF THE CLAIMANT

4.     The claimant through his deposition said the defendant operates the business of a hotel established in January, 2014 with employees it pays on a monthly basis at 24, New Nkisi Road, GRA Onitsha, Anambra State. That the defendant has been operating the said business with persons under contract of employment such as Waiters, Chefs and Administrative Staff. That the claimant introduced the Employees Compensation Scheme (ECS) and Employees Compensation Act 2010 to the defendant through a letter captioned “Introduction to the Employees Compensation Scheme dated 17^th February, 2023. The Letter was marked Exhibit NSITFMBI.

 

5.     The claimant urged the defendant to register and comply with the Employees Compensation Scheme (ESC) by serving him the letters captioned “Notice/Request for Registration with the Employees Compensation Scheme” dated 27^th April, 2023 and “Reminder Notice/Request for Registration with the Employees Compensation Scheme” dated 5^th October 2023 admitted as Exhibits NSITFMB2 and NSITFMB3 respectively.

 

6.     The claimant further served on the Defendant Notice of Statutory Assessment of Salary/Wages Record dated 5^th December, 2023 marked Exhibit NSITFMB 4 and Pre-Legal Action Notice dated 9^th January, 2024 admitted as Exhibit NSITFMB 5.

 

7.     That after Introduction of the Scheme and Issuance and services of Exhibits NSITFMB 2, NSITFMB 3, NSITFMS 4 and NSIFMS 5 the defendant has willfully failed/refused to furnish the claimant with its complete and accurate total monthly payroll from January, 2014 up to date thus failing to make minimum monthly contribution of 1.0 percent of its total monthly payroll from January, 2014 up to date into the Employees Compensation Fund Managed by the claimant.

 

8.     Furthermore, the defendant has willfully refused/neglected to allow the claimant or her officers entry into the defendants’ workplace for purpose of inspecting defendants complete and accurate total monthly payroll from January, 2014 up to date and assess same with a view to ascertaining the defendant’s minimum monthly contribution of 1.0 percent of its total monthly payroll from January, 2014 up to date. That repeated demands were made to the defendant to make its mandatory one percent of total monthly payroll contribution to the Employees Compensation Fund but the defendant willfully neglected to make the said contribution.

 

9.     The Defendant being an employer is under a statutory obligation pursuant to Section 39 (1) and 40 (a) and (b) of the Employees’ Compensation Act 2010 to cause to be furnished to the claimant an estimate of the probable amount of the defendant’s payroll together with any further information required by the claimant. Where the defendant fails to comply with the above provisions the claimant may make its own estimate of the payrolls, access and levy on that estimate and the defendant is bound by it pursuant to Section 39 (2) of the Employees Compensation Act 2010.

 

10.                        The claimant urged the Court to grant all the reliefs as contained in the originating summons.

 

THE CASE OF THE DEFENDANT

11.                        The defendant filed a preliminary objection. In addition to the preliminary objection challenging the jurisdiction of the Court, the defendant filed a counter affidavit to the originating summons. The defendant averred that the claimant did not introduce the defendant to the Employees’ Compensation Scheme as alleged; that the defendant was not served with the letters referred to in paragraphs 7, 8, 9, 10 and 11 of the claimant’s affidavit purportedly written by the claimant. The defendant also stated that they were not served with a Pre-Legal Action Notice from the claimant; that the defendant did not willfully neglect or refuse to furnish the claimant with its complete and accurate payroll, nor did the defendant refuse the claimant entry into the defendant’s work place for the purpose of inspecting the defendant’s complete and accurate total monthly payroll as alleged by the claimant.

 

12.                        The defendant submitted that by sections 39(4) and 71 of the Employees Compensation Act (ECA) 2010 actions brought in contravention of the provisions of this Act is criminal in nature; that the imposition of criminal liability by the ECA 2010 on defaulting party by the prevailing sections providing penalties both presupposes that enforcement of non-compliance as alleged by the claimant shall be by criminal prosecution. That by the provisions of sections 39(4) and 71 of the Employees Compensation Act 2010, the originating process by which actions can be instituted against an alleged defaulting party ought to be by charge or information as the case may be and not an originating summons. The defendant continued that the enforcement mechanism employed by the claimant is unknown to law as the ECA 2010 enabling the action the claimant allegedly seeks to enforce made provisions for the contravention of the Act a criminal liability. That the reliefs sought by the claimant particularly reliefs 7, 8 and 9 are not such that can be established merely by affidavit evidence; that the mode of commencement of this action by the claimant renders this suit incompetent as the facts are not only being disputed by the defendant but are also not resolvable by affidavit evidence.

 

 

CLAIMANT’S COUNTER AFFIDAVIT IN OPPOSITION TO DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION

13.                        The claimant averred that the defendant was duly served with the demand letters as can be seen from the letters endorsed as received by employees of the defendant and annexed as exhibit to the originating summons; that the purpose of the present suit as initiated is to seek the recovery of outstanding arrears of statutory contribution to the Employees compensation Fund owed as debt by the defendant and not the enforcement of penalties for non-compliance enshrined under the Act. that failure to pay a debt is a civil wrong and not of a criminal nature; that by virtue of combined reading of section 32(a-c) and section 36(1) of the ECA, the claimant is entitled to a cause of action to take measures to recover statutory contributions to the Employees Compensation Fund; that this suit is not incompetent and prays the Court to dismiss the preliminary objection with a substantial cost.

 

THE SUNMISSION OF THE CLAIMANT

14.                        The claimant submitted four (4) issues for determination as follows;

                            i.            Whether by the construction of the extant provisions of Section 73, 33(1), 39(1), (a), (b). (ii) (iii), (2), (3) and (4), 40 (1) (a) (b) (2) and (5) of the Employees’ Compensation Act, 2010 the defendant is an employer and by so being, obligated to make a minimum monthly contribution of 1.0 percent of its total monthly payroll from January 2014, up to date into the Employees’ Compensation Fund managed by the claimant and cause to be furnished to the claimant, a complete and accurate estimate of the probable amount of the defendant’s payroll from January 2014 up to date.

                          ii.            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 defendant’s total monthly payroll into the Employees’ Compensation Fund for the period of January 2014 up to date.

                       iii.            Whether having regard to the provisions of Section 53 (1) (2) (3) (4) (5) (6) and (7) and 54 (a) (b) (c) (d) (e) (f) and (g) of the Employees’ Compensation Act, 2010 the claimant or any of its officers or person authorized thereby is entitled to, at any time or all reasonable hours, entry into the workplace of the defendant and have access to inspect and examine defendant’s payroll and other necessary documents with a view to ascertaining a proper assessment of contribution payable by the defendant.

                       iv.            Whether the claimant is entitled to costs of any action to recover the unpaid assessment in accordance with Section 36 (1) of the Employees’ Compensation Act 2010.

 

15.                        The claimant in arguing his issues for determination referred to Section 2(1), 32(1), (a), (b) and (C), 33(1), 34(1), (2), (a), (b), and (3), 36(1) and (2), 39(1), (a) (b), (i) (ii) (iii) (2) (3) and (4); 40 (1) (a) (b) (2) and (5), 53(1) (2) (3) (4) (5) (6) and (7), and 54 (a) (b) (c) (d) (e) (f) and (g) and thus are reproduced below:

2 (1) Subject to the provisions of Sections 3 and 70 of this Act, this Act shall apply to all employers and employee in the public and private sectors in the Federal Republic of Nigeria.

32 (1) The Board shall –

(a) carryout assessment of the amounts to be paid into the fund by employers under the Act.      

(b) undertake regular actuarial valuation of industries, sectors and workplaces and determine the rates of contributions by employers into the fund by such industry, sector or workplace.

(c) receive and credit into its account, all money payable into the fund under this Act.

       33(1) 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.     

       34(1) The Board shall assess employers for such sums in such manner, form and procedure as the Board may, from time to time determine for the due administration of this Act.

                  (2) Assessments shall in the first instance, be based upon estimates:   

           (a) of the employer’s payroll for the year provided under Section 41 of this Act; or

           (b) as determined by the Board under Sections 43 of this Act.           

                  (3) The Board may, by order, establish a minimum assessment:

           36(1) The Board shall have a cause of action for any unpaid assessment and shall be entitled to the cost of any action to recover the unpaid assessment.

           (2) If, for any reason, an employer liable to assessment is not assessed by the Board, the employer shall be liable for the amount for which the employer should have been assessed, or as much as the Board considers reasonable, and payment of that amount may be enforced as if the employer had been assessed for that amount.

           39(1) “Every Employ shall

           (a) keep at all times at same 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 payroll”.                             

                  (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 the employer’s payrolls, not later than the 31^st 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 time 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 ?100,000 or to both imprisonment and fine for an individual or a fine of not less than ?1,000,000 for a body corporate and in addition, each director, manager or officer of the body corporate shall be liable on conviction to imprisonment for a term not exceeding one year or a fine of ?100,000 or to both such imprisonment and fine.   

           40(1) Every employer shall, not later than the last day of February in each year or at such other time as may be required by the Board, provide in a manner to be determined by the Board, a statement.

           (a) of the total amount of all earnings paid to its employees on 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.                        (2) If the statement is found to be incorrect, the Board shall reassess the employer for each year that the statement was incorrectly made and may charge the employer interest, at a rate determined by the decision of the Board, on any assessment that was not paid.

           (5) Unless satisfactory evidence of an employer’s actual payroll for any period is provided to the Board, the payroll estimated by the Board under this Section or under Section 40 (1) shall be deemed to be the actual payroll of the employer.

           53(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 authorizes by the Board may at all reasonable hours, enter any past of the establishment of any employer or person who may be an employer.

           (3) An employer shall produce, within 30days of receiving 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 hinder 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 be an employer or a principal.

                   54 ‘An officer of the Board may for the purposes of carrying out his or her duties under this Act and any regulation made there under 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 persons having special expert or professional knowledge of any matter in respect of which inspection is been earned out.

                   (e) make enquires 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 inquiry.  

                   (f) require that records or documents in a workplace or part thereof may not be distributed for a reasonable period of time for the purpose of carrying out an examination, investigation or inquiry 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.

           73 In this Act-                                                                          “Employer” 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 apprentices.”

 

SUBMISSION OF THE DEFENDANT

16.         The defendant raised two issues for determination:

a)     Whether from the facts deposed in the affidavit in support accompanying the originating summons and the counter affidavit and written address filed in response and reliefs sought particularly reliefs 7 and 8, the Honourable Court can fully ventilate the disputed facts and issues between parties before it.

b)    Whether by the provisions of the ECA, 2010 prescribing the penalties for defaulting party for non-compliance particularly sections 39(4) and 71(1), whether the Court can rightly determine this case in the mode and manner of commencement?

 

17.         The defendant submitted that the two issues are interwoven and could intermingle as such the submissions will be argued jointly. The defendant submitted that cases involving disputed issues of facts and hostile are not appropriate for the originating summons procedure; that originating summons should only be applicable in such circumstance as where there is no dispute on questions of facts or (even) the likelihood of such dispute. That it is principally used in actions involving construction and interpretation of written laws or documents where there is no substantial dispute as to facts. The defendant referred the Court to F. G. P. Ltd v. Duru (2017) 14 NWLR (Pt. 1586) P. 483 @ 519; National Bank of Nig Ltd v. Alakija (1978) 9-10 SC 59. The defendant continued that where a statute or law prescribes or provide for the method or a way of doing anything, it must be done in accordance with the express provision of the statute or law; that in the instant case the ECA 2010 has by virtue of section 71 provided for the penalty for a defaulting party or a party in contravention of any of the provisions of the Act. See Agbi v. FRN (2020) 15 NWLR (Pt. 1748) 416, Mobil Producing Nig Unltd v. Johnson (2018) 14 NWLR (Pt. 1639) 329. The defendant submitted that the Courts by the above case laws reiterated the need to strictly comply with provision of statute where it provides for particular way or method of doing anything.

 

18.         The defendant went on that where a statute has provided for the method of doing anything, it must be done in accordance with the express provision of the statute or law, unless such a law is altered or amended by a legitimate authority. The defendant submitted that in the instant case the ECA 2010 has by virtue of section 71 provided for the penalty for a defaulting party or a party in contravention of any of the provisions of the Act. See Agbi v. FRN (2020) 15 NWLR (Pt. 1748) 416, Mobil Producing Nig Unltd v. Johnson (2018) 14 NWLR (Pt. 1639) 329. The defendant further submitted that sections 39(4) and 71(1) of the ECA Act provides for penalties for an alleged employer in default as the contravention of the provisions of the Act shall be met with a stipulated fine or imprisonment or both; that the manner prescribed by the Act as penalty for the contravention of the provision envisages a criminal prosecution and not the manner to which the claimant has brought this suit; that the mode of commencement of this suit is incompetent and such robs the Court the requisite jurisdiction to entertain same. The defendant consequently urges the Court to strike out the suit with punitive cost.

 

SUBMISSION OF THE CLAIMANT TO THE DEFENDANT’S PRELIMINARY OBJECTION

19.         The claimant here raised three issues for determination, namely:

(i)    Whether the claimant is entitled to a cause of action.

(ii) Whether a cause of action for recovery of debt is a civil dispute.

(iii)     Whether this Honourable Court can consider issues in the substantive case at preliminary stage?

 

20.         On issue (1), whether the claimant is entitled to a cause of action. The claimant submitted that cause of action is not determined by the type of penalties prescribed by the Act for non -compliance but by the material facts giving rise to the Action. See section 36(1) of the ECA 2010 which stipulates that the Board shall have a cause of action for any unpaid assessment and shall be entitled to costs of any action to recover the unpaid assessment. The went on that he is statutorily entitled to a cause of action in this matter.

 

21.         On issue (2), whether a cause of action for the recovery of debt is a civil dispute. The claimant submitted that it is a settled principle of law that an action to recover debt is of a civil nature and that Courts have held that debt recovery is a civil dispute except where the debt accrued through the process of crime or some other illegal activity. The claimant referred the Court to Oceanic Securities v. Balogun & ors (2012) LPELR-9218 where the Court expressly stated thus:

“It has been stated many times that the police has no business in enforcement of debt settlements or recovery of civil debts for banks or anybody.”

See Nigeria Postal Services v. Insight Engineering Company Limited (2006) 8 NWLR (Pt. 9830 p. 438 where the Court stated that an action of debt lies where a person claims the recovery of a liquidated or certain sum of money affirmed to be due to him. See also NIPOST v. Irbok Nigeria Ltd (2006) LPELR-7701 wherein it was held that a debt denotes not only the obligation of the debtor to pay, but also the right of the creditor to receive and enforce payment. The claimant also referred the Court to the provisions of section 33(1) and section 56(1) of the ECA 2010. The claimant submitted that the argument of the defendant/applicant that the present action ought to have been initiated by a charge or information is erroneous for the simple reason that recovery of debt should not involve the Police. The claimant urged the Court to so hold.

 

22.         On issue (3), whether this Honourable Court can consider issues in the substantive case at preliminary stage. The claimant submitted that the Court has a duty not to determine a substantive issue while determining a preliminary objection. See Mr. Alfred Ugokwe v. Chemcus Industries Ltd & ors (2018) LPELR-45562 where the Court stated:

“… Courts have been admonished to bear in mind that in determining preliminary objections, the Court must be circumspect not to invite into resolving substantive issues…”

The claimant also referred the Court to United Bank for Africa Plc v. Mrs Oluronke Adeyemi (2016) LPELR-45298. The claimant further submitted that a preliminary objection which involves issues submitted for discussion in the substantive matter is incompetent and should be dismissed. See United Tippers Drivers Association (Akesan Branch) v. the Registered Trustees of the Redeemed Christian Church of God & anor (2016) LPELR-40161. The claimant urged the Court to dismissed the preliminary objection of the defendant/applicant with a substantial cost.

 

                                                COURT’S DECISION

23.                        I have given due consideration to all the processes and submissions of the parties. I will discuss preliminary objection and the main suit together. By section 131 of the Evidence Act 2011, in civil cases, the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove. The standard of proof required is on preponderance of evidence and balance of probabilities. See Longe v. FBN Plc (2006) 3 NWLR (Pt. 967) 228. In civil cases, the onus of proving an allegation is on the claimant. A party must prove its case on the credible evidence and is not at liberty in law to make a case or rely on the weakness of its opposite party in order to succeed. See Iman v. Sheriff (2005) 4 NWLR (Pt. 914) 80.

 

24.                        The defendant filed a preliminary objection challenging the jurisdiction of the Court and stated that the procedure of bringing this suit to Court is by criminal procedure and not originating summons. The defendant referred the Court to section 39(4) and 71 of the Employees Compensation Act (ECA) 2010. Section 39(4) of the ECA 2010 provides thus:

“If an employer does not comply with subsection 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 ?100,000 or to both imprisonment and fine for an individual or a fine of not less than ?1,000,000 for a 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 ?100,000 or to both such imprisonment and fine.”

Section 71(1) of the ECA 2010 provides thus:

“Any person who contravened any provision of this Act for which no specific penalty is provided commits an offence and shall be liable on conviction to a fine ?20,000 for the first case of non-compliance or imprisonment for a term not exceeding one year or ?100,000 for every subsequent case of non-compliance or both such imprisonment and fine.”

 

25.                        The defendant averred that the imposition of criminal liability by the ECA 2010 on defaulting party by the prevailing sections providing penalties both of general and specific nature presupposes that enforcement of non-compliance as alleged by the claimant shall be by criminal prosecution. That by the provisions of section 39(4) and 71(1) of the Act, the originating process by which actions can be instituted against an alleged defaulting party ought to be by a charge or information as the case may be and not an originating summons. The defendant submitted that mode of commencement of this action by the claimant renders this suit incompetent as the facts are not only being disputed by the defendant but are also not resolvable by affidavit evidence.

 

26.                        The claimant on reply averred that the purpose of the present suit as initiated is to seek the recovery of outstanding arrears of statutory contribution to the Employees Compensation Fund owed as debt by the defendant and not the enforcement of penalties for non-compliance enshrined under the Act. that failure to pay a debt is a civil wrong and not a criminal nature. The claimant further averred that by virtue of a combined reading of section 32(a-c) and section 36(1) of the ECA, the claimant is entitled to a cause of action to take measures to recover statutory contributions to the Employees Compensation Fund.

 

27.                        Section 36(1) of the ECA 2010 stipulated that the Board shall have a cause of action for any unpaid assessment and shall be entitled to costs of any action to recovery the unpaid assessment. An act or omission is not a crime unless its definition and punishment has made it so in a written law. See Aoko v. Fagbemi (1961) 1 All NLR 400. Furthermore, an action to recover debt is civil in nature and it is trite that Courts have held that debt recovery is a civil dispute except where the debt accrued through the process of crime or some other illegal activity. See Oceanic Securities v. Balogun & ors (2012) LPELR 9218. The reliefs the claimant is seeking against the defendant do not amount to criminal reliefs. What determines the jurisdiction of the Court is the claim of the plaintiff and not the counter claim of the defendant. See Gafar v. Govt. Kwara State (2007) 4 NWLR (Pt. 1024) 375. A agree with the claimant that the suit initiated is to seek the recovery of outstanding arrears of statutory contribution to the employee’s compensation fund owed as debt by the defendant and not the enforcement of penalties from non-compliance enshrined under the Act. Similarly, the letters written to the defendant in request of the debt marked Exhibits NSITFMB1, NSITFMB2, NSITFMB3, NSITFMB4 and NSITFMB5 are not criminal in nature. The notice of preliminary objection filed by the defendant praying the order of this Court to strike out this suit for being incompetent is hereby dismissed.

 

28.                        Secondly, the defendant in paragraph 6 of his counter affidavit denied that the claimant did not serve the defendant with Exhibits NSITFMB1, NSITFMB2, NSITFMB3, NSITFMB4 and NSITFMB5 as stated. The claimant averred he served the defendant with Exhibits NSITFMB1, NSITFMB2, NSITFMB3, NSITFMB4 and NSITFMB5 and on the exhibits are signatures and names of the persons that collected the exhibits with the dates they were served. Thus, it is trite that where evidence given by a party is unchallenged and uncontroverted, a Court of law must accept it and act on it unless it is palpably incredible. See MTN Nigeria Communication Limited v. Aqua Culture Co-operative Farmers Society Limited (2014) 40 WRN 123. The claimant on the issue of service of exhibits has proved his case on balance of probabilities. The burden has now shifted to the defendant whom did not lead any evidence to prove his denial of receipt of the exhibits. It then follows that facts admitted need no further proof. See section 123 of the Evidence Act 2011. See also Bank of Agriculture Ltd v. Iyama P. Goldy (2021) 27 LRN 88.

 

29.                        Reliefs (1) and (2) are declaratory reliefs wherein the defendant is obligated by the Employee’s Compensation Act 2010 to make a minimum monthly contribution of 1.0 percent of defendant’s total monthly payroll from January 2014 up to date and thereafter into the Employees Compensation Fund managed by the claimant and that the defendant is obliged to cause to be furnished to the claimant complete and accurate particulars of the defendant’s total monthly payroll from January 2014 up to date and thereafter. In proof of these reliefs the claimant averred in his affidavit in support of the originating summons particularly paragraphs 6, 7 and 8. Thus Section 73 of the Employees Compensation Act provides –

“Employer 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 other person as an employee or apprentice.”

The claimant stated in paragraph 4 of his affidavit that the defendant “operates the business of a hotel established on January 2014 with employees it pays on a monthly basis at No. 24, New Nkisi, Road, GRA Onitsha Anambra State.” The defendant hereby qualifies as an Employer by the Act and I so hold. Furthermore, Section 33 (1) of the Employees Compensation Act 2010 provides thus:

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

The word “shall” in this law is mandatory. This payment is for the compensation of employees who suffer from occupational disease or sustain injuries arising from accidents at workplace or in the course of employment.  The defendant failed to do so even though this Act and its provisions were introduced to her through Exhibits NSITFMB1 and NSITFMB2 which also showed receipt of the documents. The claimant by this have proved reliefs (1) and (2) and I hold that it is grantable.

 

30.         Relief (3) and (4) pray the Court for an order compelling the defendant to keep, at all times, with the claimant, complete and accurate particulars of the defendant’s payrolls from January 2014 up to date and thereafter and an order compelling the defendant to compute/calculate and make a minimum monthly contribution of 1.0 percent of the total monthly payroll off the defendant from January 2014 up to date and thereafter into the Employees’ Compensation Fund managed by the claimant.

 

31.         Section 39 (1) (a) of the Act provides:

“Every Employer shall 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.”   

By Section 40 of the Act, the defendant is to compute/calculate and make a minimum monthly contribution of 1.0 percent of the total monthly payroll of the defendant from January 2014 up to date and thereafter. All these are provisions of Employee Compensation Act 2010 which the defendant mandatorily ought to have done. It is clear and evident as averred by the claimant that the defendant acknowledged through its staff Angela of receipt of Exhibit NSITFMB1 and Ella Nwachukwu receipt Exhibit NSIFMB2. In paragraph 4 of the affidavit the claimant averred the defendant operates the business of a hotel established on January 23, 2014 with employees, it pays on a monthly basis at No. 24, New Nkisi Road, GRA Onitsha Anambra State. The claimant went on in paragraph 5 of the affidavit that the defendant has been operating the said business with persons under a contract of employment such as Receptionists, Waiters, Chefs and Administrative staff. The claimant in paragraph 6 of the deposition averred that it introduced the Employees’ Compensation Scheme (ESC) to the defendant and enjoined the defendant to key into the scheme as required by the Employees’ Compensation Act 2010 for the benefit of its employees. Which the defendant did not challenge. It is trite that evidence unchallenged is deemed admitted. See Joshua v. State (2019) 12 NWLR (Pt. 1685) 131 (A) 145. Reliefs (3) and (4) are hereby granted and I so hold.

 

32.   Relief (5) prays for an order granting entry to officers of the claimant into the workplace of the defendant situate at No. 24, New Nkisi Road, GRA Onitsha, Anambra State for purposes of inspecting and examining the defendant’s payrolls and other documents necessary for assessment of defendant’s minimum monthly contribution of 1.0 percent of the total monthly payroll from January 2014 up to date and thereafter. Section 53 of the Employees Compensation Act provides thus:

(i)       Any person authorized by the Board may examine the books and accounts of any employer as the Board deems necessary for administering this Act.

Section 54 of the Employees Compensation Act provides thus:

An officer of the Board may, for the purposes of carrying out his or her duties under this Act and any regulation made there under 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;

The claimant has powers under Section 53 and 54 of Employees Compensation Act 2010 to enter in any workplace at any time to carry out its duty.        Relief (5) is granted and I so hold.

 

33.         Relief (5) and (6) are similar and the law is very clear on that. I will repeat Section 54 of the Act for emphasis.

“An officer of the Board may also enter in any workplace at any time with or without warrant or notice; The officers can require the production of any licence document record or report, inspect and examine a copy of the same; 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 …”

It is clear that the claimant is empowered to ensure compliance with the provisions of Employment Compensation Act 2010. I so hold. Relief (6) is granted

 

34.   Relief (7) is for an order of Court directing the defendant to pay into the Employee’s Compensation Fund 40% of the total monthly payroll from January 2014 up to date as penalty for default in failing to cause to be furnished to the claimant complete and accurate total monthly payroll from January 2014 up to date and for failure to make minimum monthly contribution of 1.0 percent of the total monthly payroll from January 2014 up to date into the Employees Compensation Fund Managed by the claimant Section 39 (4) of the Employee’s Compensation Act 2010 provides that where the defendant does not furnish complete and accurate particulars of the defendant’s payroll to the claimant, or if the particular of the payroll are not true and accurate, whether the defendant for every failure to comply and for every such particulars of the payroll shall be liable to imprisonment or fine or both imprisonment and fine. Relief 7 is refused as the present suit is seeking the recovery of outstanding arrears of statutory contribution to the Employees Compensation Fund owed as debt by the defendant and not enforcement of penalties for non-compliance under the Act.

 

35.   Relief (8) is for an order directing the defendant to pay into the Employees Compensation Fund 10% interest on the defendant’s total monthly payroll from January 2014 up to date. Order 47 Rule 7 of the NICN Rules 2017 empowers the Court to make an order or give direction as to the period within which payment is to be made or other act is to be performed and may order interest at a rate not less than 10% per annum to be paid upon any judgment. Relief (8) is granted and I so hold.

 

36.   Relief (9) is for an order directing the payment of the sum of Two Million Naira (?2,000, 000.00) only as cost of the action covering the cost of legal fees (?1,000,000.00), cost of service of notices (?400,000.00); cost of production and service of Court processes (?400,000.00) and other ancillary costs (?200,000.00).

 

37.   Relief (9) is for special damages. Special damages are quantifiable pecuniary losses up to the date of trial. They are assessed separately from other awards since they must be pleaded and proved. They are exceptional in their nature and character and can be specific items of loss suffered by a claimant or as a result of the defendant’s act or breach of duty complained of. In order to succeed in claim of special damages, the claimant must specifically plead each of the items of the special damages he claims and must also strictly prove each of the said items to the satisfaction of the Court, as the Court is not entitled to make its own estimate of same. Strict proof of damages in fact means that the evidence adduced on their proof, must show particularly in accordance with the pleadings and the claim must also be based upon precise calculation so as to enable the defendant access to the fact which makes such calculation. See FBN Plc v. Associated Motors Co Ltd (1998) 10 NWLR (Pt. 570) 441, Ngilari v. Mothercat Ltd (1999) 13 NWLR (Pt. 636) 626. It is trite that each item of special damages claimed must be specially proved and such proof must also be characterized by testimony that ties each item with the proof proffered. See David Taylor & anor v. Edwin Ogheneovo (2011) 51 WRN, 155 @ 159-160.

 

38.   This suit is an originating summons and the evidence adduced here is affidavit evidence. There is no place in the affidavit in support that the claimant laid evidence nor pleaded severally the special damages sought. The claimant merely prayed for the order and never laid evidence to that order. The Court is of the view that such prayer is deemed abandoned. Relief (9) accordingly fails and is dismissed.

 

39.   In all, the claimant/applicant’s case succeeds in part in terms of the following declarations and orders:

1.     It is hereby declared that the defendant is an employer within the context and meaning of the Employees’ Compensation Act 2010 and by so being, obligated to make a minimum monthly contribution of 1.0 percent of defendant’s total monthly payroll from January 2014 up to date and thereafter into the Employees Compensation Fund Managed by the claimant.

2.     It is hereby declared that the defendant being an employer within the context and meaning of the Employees’ Compensation Act 2010 is obligated to cause to be furnished to the claimant complete and accurate particulars of the defendant’s total monthly payroll from January 2014 up to date and thereafter.

3.     The defendant is compelled to keep, at all times, with the claimant, complete and accurate particulars of the defendant’s payrolls from January 2014 up to date and thereafter.

4.     The defendant is compelled to compute/calculate and make a minimum monthly contribution of 1.0 percent of the total monthly payroll of the defendant from January 2014 up to date and thereafter into the Employees Compensation Fund managed by the claimant.

5.     The officers of the claimant are hereby granted entry into the workplace of the defendant situate at No. 24, New Nkisi Road, GRA Onitsha, Anambra State for purposes of inspecting and examining the defendant’s minimum monthly contribution of 1.0 percent of the total monthly payroll from January 2014 up to date and thereafter.

6.     The defendant is compelled to grant officers of the claimant access to the defendant’s total monthly payroll from January 2014 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 January 2014 up to date and thereafter.

7.     The defendant is directed to pay into the Employees Compensation Fund 10% interest on the defendant’s total monthly payroll from January 2014 up to date.

 

40.   Judgment is entered accordingly. I make no order as to cost.

 

 

Hon. Justice J.I. Targema, PhD.