IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 10^TH MARCH, 2026                                            SUIT NO: NICN/KN/74/2023

 

BETWEEN:

 

NIGERIA SOCIAL INSURANCE TRUST FUNDS  ……………   CLAIMANT

MANAGEMENT BOARD

 

AND

 

MALLAM ABDULKADIR                                ………….       DEFENDANT                                     

(Trading under the name and style of

Abdulkadir Senior Special Bread)

 

REPRESENTATION

 

BINTA SHUAIBU WITH I. I. SANUSI AND ATINUKE MOROUNRANTI ALIMI FOR THE CLAIMANT

I. G. INUWA FOR THE DEFENDANT

 

JUDGMENT

 

On 25^th October, 2023, the Claimant filed an Originating Summons against the Defendant praying for the determination of the following questions:

 

1)    Considering the extant provision of Sections 32, 33 (1); 39 (1) (a) and (b) (i) (ii) (iii); 40 (1) (a) (b) and 73 of the Employees’ Compensation Act, 2010, whether the Defendant is an Employer within the meaning of the Employees’ Compensation Act, 2010, and if the answer is in affirmative, whether he is duty bound to register with the Claimant and under legal obligation 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 Defendant is an employer within the meaning of the Employees’ Compensation Act.2010 and considering the provision of Section 39 (4) of the Employees’ Compensation Act. 2010, where the Defendant does not furnish complete and accurate of its payroll to the Claimant or if the particulars of the payroll is false and inaccurate, the Defendant for every failure to comply and for every such particulars of the payroll shall be liable to imprisonment or fine or both.

 

3)    Having regards 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 or at all reasonable hours, can enter the Defendant’s workplace with or without warrant or notice require the production of the Defendant’s payroll and account record for inspection or examination of same with a view to ascertaining the accuracy of the Defendant’s payroll and assessing same.

 

4)    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 Defendant the estimates of the probable amount of its payroll from July, 2011, when the Employees’ Compensation Act, 2010 became operational or from to date.

In the determination of these questions, the Claimant sought for the following Reliefs:

 

1)    A DECLARATION that the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010 and it is under legal obligation to make a minimum monthly contribution of 1:0 percent of the Defendant’s total estimate of monthly payroll from July, 2011 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 furnish the Claimant the particulars of its total payroll from July, 2011 to date and thereafter.

 

3)    AN ORDER compelling the Defendant to immediately register with the Claimant.

 

4)    AN ORDER compelling the Defendant to keep at all time, with the Claimant complete and accurate particulars of its payroll from July, 2011 or from the date of incorporation till Date and thereafter.

 

5)    AN ORDER compelling the Defendant to compute/calculate and make minimum monthly contribution of 1:0 percent of its total monthly payroll from July, 2011 to date and thereafter into the Employees’ Compensation Fund managed by the Claimant.

 

6)    AN ORDER restraining the defendant from refusing access to the officers of the Claimant to enter into the workplace of the Defendant situated in Potiskum town, Misau Road, Yobe State for purposes of inspecting and examining the Defendant‘s payroll and other documents necessary for assessment of its minimum monthly contribution of 1:0 percent of the total monthly payroll from July, 2011 to date and thereafter.                                     

                                                                       

7)    AN ORDER directing the Defendant to pay into the Employees’ Compensation Fund 40% percent of the total monthly payroll from July, 2011 to date as penalty for default in failing to furnish the Claimant complete and accurate total monthly payroll from July, 2011 to date and for failure to make minimum of 1:0 percent of the total monthly payroll from July, 2011 to date into Employees’ Compensation Fund managed by the Claimant.

 

8)    10% interest on the Defendant ‘s total monthly payroll from July, 2011 up to date.

 

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

 

10)                      And for such further order(s) as this Honourable Court may deem fit and expedient to make in the circumstance of the case.

 

In support of the Originating Summons, the Claimant filed 12 paragraphs affidavit deposed to by Musa Hussaini Jajere, Officer 1 in Maiduguri Road, Damaturu, Yobe State and a written address settled by Binta Shuaibu in accordance with the rules of this court. The Defendant by leave of court on the 21^st October, 2024 filed his Counter Affidavit out of time. On the 13^th January, 2026, a day slated for hearing, the Defendant applied for adjournment to file his Counter Affidavit to reflect the amended name of the Claimant. By leave of court on the xxx, 2026, his Counter Affidavit and written address in opposition to the originating summons was filed and served out of time.

CASE OF THE CLAIMANT

The case of the Claimant, as advanced in the affidavit in support of this action, is that the Claimant is a statutory body charged with the administration and management of the Employees’ Compensation Scheme under the Employees’ Compensation Act, 2010, and that the deponent, Musa Hussaini Jajere, is an officer of the Claimant who is conversant with the facts and circumstances of the case by virtue of his official duties. He states that the facts deposed to are within his personal knowledge or derived from official records available to him in the course of his duties, and that he has the authority and consent of the Claimant to depose to the affidavit on its behalf.

The Claimant’s case is that the Defendant is a business enterprise duly registered under Part E of the Companies and Allied Matters Act and operates a bakery business in Potiskum, Yobe State, where it employs workers who are on its payroll. By reason of the nature of its business and its engagement of employees, the Defendant is a stakeholder in the labour market and qualifies as an employer within the meaning of the Employees’ Compensation Act, 2010. The Claimant asserts that, as an employer, the Defendant is statutorily required to participate in and comply with the Employees’ Compensation Scheme for the benefit and protection of its employees in the event of death, injury, or disability arising out of or in the course of employment.

The Claimant avers that in furtherance of its statutory mandate, it formally wrote to the Defendant by a letter dated 21 June 2022, introducing the Defendant to the modalities for the implementation of the Employees’ Compensation Scheme and enjoining it to key into the scheme as required by law. According to the Claimant, despite this formal introduction and notification, the Defendant failed, neglected, or refused to register with the Claimant and has not furnished the Claimant with details of its total monthly payroll from July 2011 to date. The Claimant further maintains that the Defendant has not made any remittance whatsoever to the Employees’ Compensation Fund during this period.

It is the Claimant’s further case that it’s Enforcement and Inspection Officers made several visits to the Defendant in an effort to secure compliance with the provisions of the Employees’ Compensation Act. Notwithstanding these visits and engagements, the Defendant allegedly continued to refuse or fail to register with the Claimant and to make the mandatory minimum monthly contribution of one percent of its total payroll to the Employees’ Compensation Fund. As a result of the Defendant’s persistent non-compliance, the Claimant states that it issued reminder letters dated 4^th April, 2023 and 7^th May, 2023, which were duly served on the Defendant, yet the Defendant ignored these reminders and still failed to comply with its statutory obligations.

The Claimant also avers that, following the Defendant’s continued refusal to comply despite repeated reminders and inspections, a pre-action notice dated 13^th July, 2023 was served on the Defendant as a final step before instituting legal proceedings. However, even after the service of the pre-legal action notice, the Defendant allegedly willfully neglected and refused to make the required statutory contributions or to regularize its participation in the Employees’ Compensation Scheme.

According to the Claimant, the Defendant’s persistent failure to remit the mandatory contributions has greatly and negatively affected the Claimant’s ability to effectively discharge its statutory mandate of providing a fair, adequate, and guaranteed system of compensation for employees and their dependants in cases of death, injury, or disability arising from employment. The Claimant contends that such non-compliance undermines the objectives of the Employees’ Compensation Act and deprives the Defendant’s employees of the protection guaranteed to them by law.

The Claimant further relies on legal advice received from its counsel, which it believes to be true, to the effect that the Defendant qualifies as an employer under the Employees’ Compensation Act, 2010 and is consequently under a statutory duty to make a minimum monthly contribution of one percent of its total payroll into the Employees’ Compensation Fund pursuant to section 33 (1) of the Act. In addition, the Claimant maintains that the Defendant is under a further statutory obligation, pursuant to sections 39 (1) and 40 (a) and (b) of the Act, to furnish the Claimant with an estimate of its probable payroll and any other information required for the effective administration of the scheme.

In sum, the Claimant’s case is that the Defendant, despite due notice, repeated engagements, reminder letters, and a pre-action notice, has deliberately and persistently failed to comply with its statutory obligations under the Employees’ Compensation Act, 2010, thereby necessitating the institution of this action to compel compliance and protect the integrity of the Employees’ Compensation Scheme.

 

CASE OF THE DEFENDANT

The defence put forward by the Defendant in the counter affidavit is essentially a denial of liability under the Employees’ Compensation Act as alleged by the Claimant, coupled with a challenge to the factual foundation of the Claimant’s case. The Defendant’s case, as deposed to by Idris Muhammad Alkali, a litigation clerk in the firm of F. A. Akinola & Co, is that the deponent is competent and duly authorised to depose to the affidavit on behalf of the Defendant, having acquired knowledge of the facts in the course of his employment and upon information received from learned counsel to the Defendant, which information he believes to be true.

The Defendant contends that the description of the Defendant by the Claimant as a business enterprise or private company registered under the Companies and Allied Matters Act is incorrect and misleading. According to the Defendant, he is not a private company as alleged, but rather a registered small-scale businessman. The Defendant asserts that the nature of his business operations does not fall within the characterization advanced by the Claimant and that this distinction is material to the issues in controversy. In support of this assertion, the Defendant relies on a certificate of registration, which is exhibited to the counter affidavit, as evidence of his status as a small-scale business operator.

Flowing from this position, the Defendant further maintains that he does not operate a formal employment structure with salaried staff on a monthly payroll. The defence asserts that the Defendant engages workers on a daily basis and remunerates them on a daily, task-based arrangement, rather than through a structured monthly payroll system. On this basis, the Defendant denies the allegation that he has a monthly payroll capable of registration with the Claimant or upon which the computation of a statutory contribution could be made. The Defendant therefore disputes the Claimant’s assertion that he failed to register a payroll or remit contributions derived from a monthly payroll, contending that no such payroll exists in the first place.

The Defendant also challenges the factual accuracy of the Claimant’s assertion regarding service of statutory notices and correspondence. He maintains that he was never personally served with the letters allegedly issued by the Claimant, including the introductory letter, reminder letters, and other enforcement-related correspondence. According to the Defendant, the letters referred to by the Claimant were addressed and delivered to a person described as the Manager of “Senior Special Bread,” rather than to the Defendant in his personal capacity. The Defendant contends that such service, even if it occurred, cannot be construed as proper or effective service on him as the Defendant in this suit.

In the same vein, the Defendant denies being personally served with the alleged pre-legal action notice relied upon by the Claimant. He asserts that the said pre-action notice was similarly served, if at all, on the Manager of Senior Bread and not on him as the Defendant. The Defendant therefore argues that the procedural foundation of the Claimant’s action is defective, as the alleged pre-legal notice was not properly served on the party sought to be bound by it.

Overall, the Defendant’s defence is that the Claimant’s case is built on incorrect assumptions about his legal status, the nature of his business operations, and the existence of an employer–employee relationship structured around a monthly payroll. He maintains that the factual allegations relating to registration, payroll, statutory contributions, and service of notices are untrue or misconceived. On the strength of these denials and explanations, the Defendant urges the court to hold that the Claimant has failed to establish a credible basis for the reliefs sought and contends that it would be in the interest of justice for the court to dismiss the application in its entirety.

SUBMISSIONS OF THE CLAIMANT IN SUPPORT OF THE ORIGINATING SUMMONS

 

The Claimant formulated four (4) issues for determination, to wit:

 

1)   Considering the extant provision of Sections 32, 33 (1); 39 (1) (a) and (b) (i) (ii) (iii); 40 (1) (a) (b) and 73 of the Employees’ Compensation Act, 2010, whether the Defendant is an Employer within the meaning of the Employees’ Compensation Act 2010, and if the answer is in affirmative, whether he is duty bound to register with the Claimant and under legal obligation 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 Defendant is an employer within the meaning of the Employees’ Compensation Act.2010 and considering the provision of Section 39 (4) of the Employees’ Compensation Act. 2010, where the Defendant does not furnish complete and accurate of its payroll to the Claimant or if the particulars of the payroll is false and inaccurate, the Defendant for every failure to comply and for every such particulars of the payroll shall be liable to imprisonment or fine or both.

 

3)   Having regards 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 or at all reasonable hours, can enter the Defendant’s workplace with or without warrant or notice require the production of the Defendant’s payroll and account record for inspection or examination of same with a view to ascertaining the accuracy of the Defendant’s payroll and assessing same.

 

4)   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 Defendant the estimates of the probable amount of its payroll from July, 2011, when the Employees’ Compensation Act, 2010 became operational to date.

The submissions of the Claimant on the issues for determination are firmly anchored on the clear and unambiguous provisions of the Employees’ Compensation Act, 2010, which the Claimant contends govern the rights, duties, and obligations of the parties in this suit. The Claimant submits that all the issues raised for determination are interrelated and ought to be resolved together, as they revolve around the status of the Defendant as an employer, the statutory obligations arising therefrom, and the powers of the Claimant to enforce compliance with the Act.

In advancing its submissions, the Claimant places considerable reliance on the combined effect of sections 32, 33 (1), 39 (1) (a) and (b) (i), (ii) and (iii), 40 (1) (a) and (b), 53, 54, and 73 of the Employees’ Compensation Act, 2010. The Claimant submits that by virtue of section 73 of the Act, the definition of an “employer” is broad and inclusive, encompassing any individual, body corporate, or government entity that has entered into a contract of employment to engage another person as a worker or apprentice. The Claimant argues that the Defendant, having admitted to engaging workers for the purpose of carrying on his business, squarely falls within the statutory definition of an employer under the Act, regardless of whether such workers are engaged on a daily or monthly basis. The Claimant therefore urges the Court to hold that the Defendant is an employer within the meaning and intendment of the Employees’ Compensation Act, 2010.

Having established the Defendant’s status as an employer, the Claimant submits that section 33 (1) of the Act imposes a mandatory statutory obligation on every employer to make a minimum monthly contribution of one percent of its total monthly payroll into the Employees’ Compensation Fund established under the Act and managed by the Claimant. The Claimant contends that the language of section 33 (1) is couched in mandatory terms, using the word “shall,” which leaves no discretion to an employer to opt out of compliance. The Claimant further submits that the Defendant’s failure or refusal to register with the Claimant and remit the prescribed contributions since the Act became operational in July 2011 constitutes a continuous breach of statutory duty. The Claimant urges the Court to so hold.

The Claimant further relies on sections 39 (1) and 40 (1) of the Act to submit that every employer is under a further statutory obligation to keep complete and accurate particulars of its payroll and to furnish the Claimant with estimates of the probable amount of its payroll when the employer comes within the scope of the Act and at such other times as may be required by the Claimant. According to the Claimant, these provisions empower the Claimant to demand payroll information from employers for the purpose of assessment, regulation, and enforcement of contributions under the scheme. The Claimant submits that the Defendant’s contention that he has no payroll cannot avail him, as section 39 (2) of the Act expressly empowers the Claimant, where an employer fails to furnish accurate payroll information, to make its own estimate of the payroll, assess contributions based on that estimate, and bind the employer by such assessment. The Claimant argues that the Defendant’s persistent refusal to furnish payroll information amounts to a violation of sections 39 and 40 of the Act.

On the issue of liability for non-compliance, the Claimant places reliance on section 39 (4) of the Act, which provides that where an employer fails to comply with the requirement to furnish payroll particulars, or where such particulars are false or inaccurate, the employer commits an offence and is liable, upon conviction, to imprisonment, fine, or both, depending on whether the employer is an individual or a body corporate. The Claimant submits that this provision underscores the seriousness with which the law treats compliance with payroll disclosure and contribution obligations under the Employees’ Compensation Scheme.

The Claimant also submits that sections 53 and 54 of the Act confer wide investigative, inspection, and enforcement powers on the Claimant and its officers. It is argued that by virtue of section 53 (1) and (2), any person authorised by the Board of the Claimant may, at all reasonable hours, examine the books and accounts of any employer and enter the employer’s establishment for the purpose of administering the Act. Section 54 further empowers an officer of the Board to enter any workplace at any time, with or without a warrant or notice, require the production of payroll records and other documents, inspect and examine such records, and make necessary inquiries to ascertain compliance. The Claimant submits that these provisions entitle its officers to access the Defendant’s workplace and records for inspection and verification of payroll information, and that any obstruction or refusal by the Defendant constitutes an offence under section 53 (6) of the Act.

The Claimant contends that the affidavit evidence before the Court clearly shows that despite repeated visits, demands, and notices, the Defendant has consistently refused to grant the Claimant’s officers access to his workplace and records and has failed to furnish any payroll information or make the required statutory contributions. The Claimant submits that this conduct amounts to a flagrant and willful breach of sections 33, 39, 40, 53, and 54 of the Employees’ Compensation Act, 2010, and has negatively impacted the Claimant’s ability to discharge its statutory mandate of providing a fair and guaranteed system of compensation for employees in the event of work-related injury, disability, or death.

In conclusion, the Claimant urges the Court to resolve all the issues for determination in its favour by holding that the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010, that he is under a statutory obligation to register with the Claimant, furnish payroll information from July 2011 to date, and remit the minimum monthly contribution of one percent of his total payroll into the Employees’ Compensation Fund. The Claimant further urges the Court to affirm its statutory powers of inspection and enforcement under sections 53 and 54 of the Act and to grant all the reliefs sought in the interest of justice.

SUBMISSIONS OF THE DEFENDANT IN OPPOSITION TO THE ORIGINATING SUMMONS

In opposition, the Defendant formulated three (3) issues for determination, to wit:

1.     Whether the claimants have sufficiently proved that the defendant is an Employer within the meaning of Employers Compensation Act, 2010?

 

2.     Whether the Manager Senior Bread whom EXHIBITS NSITF 1, NSITF 2 & 3 and NSITF 4 were allegedly served on is a juristic person or juristic personality that be sued?

 

3.     Whether paragraphs 11 (a), (b) and (c), of the claimant’s affidavit in support contradicted the rules of affidavit under the Evidence Act 2011?

On the first issue, the Defendant submitted that the Claimants failed woefully to discharge the evidential burden placed on them by law to establish that the Defendant is an employer within the meaning and contemplation of the Employees’ Compensation Act, 2010. It was argued that the Claimants did not tender any credible documentary or oral evidence before the Court to demonstrate that the Defendant employed any staff or operated as an employer of labour as envisaged under the Act. The Defendant maintained that mere assertions without supporting evidence cannot ground liability under the Employees’ Compensation Act. Counsel emphasized that where a claimant fails to supply adequate facts and evidence to prove that a defendant qualifies as an employer, such a claim must necessarily fail. In support of this position, reliance was placed on the decision of the National Industrial Court in Nigeria Social Insurance Trust Fund Management Board v. Manuchismo Weli (Doing Business Under the Name and Style of Bluebells School), Suit No. NICN/CA/02/2021, where the Court held that due to the absence of evidence establishing the existence of employees, the quantum of claim, and any assessment thereof, the claimant’s case collapsed for lack of proof and was accordingly dismissed. The Defendant urged the Court to apply the same reasoning to the present case, contending that the Claimants’ failure to establish the Defendant’s status as an employer is fatal to their claim.

On the second issue, the Defendant contended that the person on whom Exhibits NSITF 1, NSITF 2 and 3, and NSITF 4 were allegedly served, namely “Manager Senior Special Bread,” is not a juristic person known to law and therefore cannot be sued or validly served. It was argued that all the correspondence and demand notices relied upon by the Claimants were addressed to “Manager Senior Special Bread” rather than to the Defendant, described in this suit as “Mallam Abdulkadir (trading under the name and style of Senior Special Bread).” The Defendant submitted that service on a non-juristic entity is incompetent and of no legal effect. While conceding that there exists a registered business name known as “Abdulkadir Senior Special Bread,” as evidenced by Exhibit A attached to the Defendant’s counter affidavit, counsel argued that the Claimants failed to direct their letters and processes to this registered business name or to the Defendant personally. Consequently, the Defendant maintained that all the letters relied upon by the Claimants were addressed to a non-existent juristic personality and cannot ground any valid cause of action against the Defendant in this suit.

On the third issue, the Defendant submitted that paragraphs 11 (a), (b) and (c) of the Claimants’ affidavit in support are fundamentally defective as they violate the settled rules governing affidavits under the Evidence Act, 2011. It was argued that the said paragraphs contain legal arguments, conclusions, and opinions, which are expressly prohibited in affidavit evidence. The Defendant relied on Section 115 (2) of the Evidence Act, 2011, which provides that an affidavit shall not contain extraneous matter by way of objection, prayer, legal argument, or conclusion. Counsel explained that extraneous matters include any deposition that is improper in an affidavit, such as conclusions of law or argumentative statements. In buttressing this submission, reliance was placed on the decisions of the Supreme Court in Odey v. Alaga (2021) 13 NWLR (Part 1792) 1 at 62, per Oseji, JSC, and Emeka v. Chuba Ikpeazu (2017) LPELR-41920 (SC), per Peter-Odili, JSC, where the apex court reiterated that affidavits must be confined strictly to facts within the personal knowledge of the deponent and must not stray into the realm of legal argument or conclusions. The Defendant therefore urged the Court to discountenance paragraphs 11 (a), (b) and (c) of the Claimants’ affidavit for being incompetent and in breach of Section 115 (2) of the Evidence Act.

In conclusion, the Defendant submitted that the Claimants have failed to prove their case by credible evidence, having not established that the Defendant is an employer within the meaning of the Employees’ Compensation Act, having directed their processes to a non-juristic personality, and having relied on a defective affidavit containing prohibited extraneous matters. The Defendant therefore urged this Court to dismiss the Claimants’ case in its entirety for lack of merit.

RELY ON POINTS OF LAW

In the Claimant’s Reply on Points of Law, the Claimant responds to the Defendant’s counter affidavit and written address wherein the Defendant contends that he has no permanent staff, that correspondences were not properly addressed or served on him, and consequently urges the Court to dismiss the suit. The Claimant joins issues with the Defendant and formulates three central questions for determination: whether the Defendant qualifies as an employer under the Employees’ Compensation Act; whether the issuance of demand notices or correspondences constitutes a condition precedent to instituting an action under the Act; and whether the alleged mistake in the Defendant’s name amounts to a mere misnomer capable of being cured.

On the first issue, the Claimant anchors his argument on Section 73 of the Employees’ Compensation Act, which defines an employer to include any individual, body corporate, or government entity that has entered into a contract of employment to engage another person as an employee or apprentice. The same section defines an employee broadly to cover persons engaged under oral or written contracts of employment, whether on continuous, part-time, temporary, apprenticeship, or casual basis, including domestic servants not being members of the employer’s family. The Claimant further relies on Section 2 of the Act, which makes the scheme applicable to all employers and employees in both the public and private sectors throughout the Federal Republic of Nigeria.

Applying these provisions to the facts, the Claimant argues that by the Defendant’s own admission in his counter affidavit, he engages workers on a daily basis and pays them daily wages. The Defendant’s attempt to describe his operation as a small business rather than a private company does not, in the Claimant’s view, remove him from the ambit of the Act. The Claimant contends that the existence of a payroll system in the strict sense of monthly salary documentation is not a legal prerequisite for an employer–employee relationship under the Act. Payroll, it is argued, simply refers to a system or record of remuneration, whether payment is made daily, weekly, or monthly. What is decisive is the existence of a contract of service and remuneration for labour. Even assuming, without conceding, the correctness of the Defendant’s averments in certain paragraphs of the counter affidavit, the Claimant maintains that the Defendant remains an employer within the meaning of Section 73 and is therefore bound by the Employees’ Compensation Scheme. The Court is accordingly urged to so hold.

On the second issue, the Claimant addresses whether the issuance of demand notices or prior correspondence constitutes a condition precedent to the institution of an action to enforce compliance with the Act. Reliance is placed on Section 33 (1) of the Employees’ Compensation Act, which mandates every employer to make a minimum monthly contribution of one percent of the total monthly payroll into the Fund within the stipulated period. The Claimant also cites Section 36 (2), which provides that where an employer liable to assessment is not assessed by the Board for any reason, the employer remains liable for the amount that ought to have been assessed, and such payment may be enforced as though the employer had been duly assessed.

The Claimant argues that these provisions impose a statutory obligation on employers and do not make the issuance of demand notices, meetings, or other correspondence a condition precedent to enforcement. The Defendant’s objection that correspondence was wrongly addressed is characterized as a purely technical argument designed to evade substantive liability. The Claimant points out that the Defendant trades and is widely known as “Senior Special Bread,” and that photographs of the bakery premises and product packaging bearing that name were exhibited, together with evidence of the address where the letters were served. In the Claimant’s submission, the statutory duty to contribute arises directly from the Act, and non-compliance cannot be excused on the ground that demand notices were allegedly misdirected. The Court is therefore urged to hold that prior demand is not a prerequisite to the enforcement of statutory contributions under the Act.

On the third issue, concerning the alleged mistake in the name of the Defendant, the Claimant submits that the error constitutes a mere misnomer and is curable. Heavy reliance is placed on judicial authorities, particularly the decision of the Court of Appeal in Guaranty Trust Bank Plc v. Pico Projects Services Ltd (2023) LPELR-60886 (CA), where the Court, drawing from the Supreme Court’s pronouncements, clarified that a misnomer occurs where the correct party is before the Court but is described by an incorrect name. The Court in that case referred to the Supreme Court’s exposition in Calabar Municipal Govt & Ors v. Honesty & Ors (2021) LPELR-58391 (SC) and Registered Trustees of Airline Operators of Nigeria v. NAMA (2014) LPELR-22372 (SC), emphasizing that a misnomer does not vitiate proceedings where there is no real doubt as to the identity of the party intended to be sued.

The Claimant further draws support from authorities such as Emespo J. Continental Ltd v. Corona S. & Co. (2006) 11 NWLR (Pt. 991) 365, Njoku v. U.A.C. Foods (1999) 12 NWLR (Pt. 632) p.557 at 564, paras B-C and Keystone Bank Ltd v. Okefe (2014) LPELR-22633 (CA), all of which reiterate that where the correct person is brought before the Court under a wrong name, and there is no confusion as to identity, the defect is a mere misnomer and is curable. The Claimant submits that paragraphs of the Defendant’s counter affidavit acknowledge that the Manager of Senior Special Bread was served, though the Defendant disputes the correctness of the name used. In the Claimant’s view, this confirms that there was no misapprehension as to the identity of the party sued. The error in name, if any, was occasioned by the Defendant’s own manner of holding out his business to the public, as evidenced by the exhibits showing the business name on the premises and product packaging. The Claimant further invokes the principle that a party cannot benefit from his own wrong, relying on Sale Ado Abdullahi v. Yusha’u Ibrahim & Ors (2023) LPELR-59984) (CA).

In conclusion, the Claimant urges the Court to discountenance the Defendant’s technical objections regarding employment status, prior demand, and alleged misnomer, and to hold that the Defendant is an employer within the meaning of the Employees’ Compensation Act, that no prior demand notice is required before enforcement, and that any defect in the name of the Defendant is a curable misnomer. The Court is accordingly urged to grant the reliefs sought by the Claimant.

DECISION OF THE COURT

Having regard to the questions posed in the originating summons and the submissions of the parties, the following issues can sufficiently determine this case:

1.     Whether the Claimant has established, on the affidavit evidence before the Court, that the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010.

 

2.     If the first issue is resolved in the affirmative, whether the Defendant is under statutory obligations to register with the Claimant, furnish payroll information, and make contributions under the Act, and whether the Claimant is entitled to the reliefs sought.

 

3.     Whether the objections raised by the Defendant relating to service of notices and alleged defects in the Claimant’s affidavit are sufficient to defeat the Claimant’s case.

Issue One: Whether the Claimant has established that the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010

The foundation of the Claimant’s case is that the Defendant is an employer and therefore subject to the provisions of the Employees’ Compensation Act, 2010. The Defendant, on the other hand, contends that the Claimant failed to prove this essential fact and argues that he is merely a small-scale businessman who engages workers on a daily basis and does not operate a monthly payroll.

By section 73 of the Employees’ Compensation Act, 2010, an “employer” is defined to include any individual, body corporate or government agency that has entered into a contract of employment to employ another person as a worker or apprentice. The definition is deliberately broad and inclusive. Nothing in the Act limits the status of an employer to those who operate formal corporate structures or monthly payroll systems.

The Defendant admits, in his counter affidavit, that he engages workers in the course of his bakery business. His contention is merely that such workers are paid daily and not monthly. In my considered view, this distinction does not avail the Defendant. The Act does not predicate the status of an employer on the mode or frequency of payment of wages. What is material is the existence of an employment relationship, whether permanent, temporary, casual or otherwise.

The National Industrial Court has consistently held that once a person engages workers in the course of a business, he qualifies as an employer for the purposes of labour and employment legislation. See Adewunmi v. Nigerian Eagle Flour Mills Ltd (2014) 42 NLLR (Pt. 133) 1. The Employees’ Compensation Act is a social legislation enacted to provide protection for workers, and its provisions must be given a liberal and purposive interpretation to advance its objectives. See Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 1590) 24.

The Defendant’s reliance on the decision in Nigeria Social Insurance Trust Fund Management Board v. Manuchismo Weli (Bluebells School) NICN/CA/02/2021 is misplaced. In that case, the claimant failed to place any material before the court to establish the existence of employees or any factual basis for assessment. In the present case, the Defendant himself admits engaging workers, even though he describes them as daily-paid workers. That admission is sufficient to bring him within the statutory definition of an employer.

I therefore find and hold that the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010.

Issue Two: Whether the Defendant is under statutory obligations under the Act and whether the Claimant is entitled to the reliefs sought.

Having held that the Defendant is an employer, the next question is whether the Act imposes obligations on him and whether the Claimant has established entitlement to the reliefs sought.

Section 33 (1) of the Act provides that every employer shall make a minimum monthly contribution of one percent of the total monthly payroll into the Employees’ Compensation Fund. The use of the word “shall” denotes a mandatory obligation. The Act does not confer any discretion on an employer to opt out of compliance.

Sections 39 and 40 further impose obligations on employers to keep accurate payroll records and to furnish the Claimant with estimates of their payroll. Where an employer fails or refuses to furnish such information, section 39 (2) empowers the Claimant to make its own assessment and bind the employer thereby.

The Defendant’s argument that he has no monthly payroll does not absolve him from compliance. An employer cannot evade statutory obligations by merely refusing to keep records or by adopting an informal payment structure. To hold otherwise would defeat the very purpose of the Act.

The Claimant also relied on sections 53 and 54 of the Act, which confer wide powers of inspection, entry and examination on the Claimant and its officers. These provisions are clear and unambiguous. Once a person qualifies as an employer, the Claimant is statutorily empowered to enter the workplace, inspect records and enforce compliance, subject to the limits provided by law.

However, while the Court finds that the Defendant is under statutory obligations to register, furnish payroll information and make contributions, the reliefs sought by the Claimant must still be scrutinised to determine whether they are grantable on the evidence before the Court.

The Claimant seeks orders compelling payment of contributions from July 2011 to date, penalties amounting to 40% of payroll, interest at 10%, and a substantial cost of litigation. These monetary reliefs are premised on the existence of a determinable payroll and an assessed quantum. The Claimant did not place before the Court any concrete assessment, computation or basis upon which the Court can ascertain the Defendant’s payroll or the exact sums claimed.

It is settled law that courts do not grant speculative or indeterminate monetary claims. See Union Bank of Nigeria Plc v. Astra Builders (W.A.) Ltd (2010) 17 NWLR (Pt. 1223) 1. While the Act empowers the Claimant to assess payroll where an employer defaults, such assessment must be pleaded and placed before the Court.

Accordingly, while the declaratory and coercive reliefs relating to registration, furnishing of records, and access for inspection are grantable, the monetary claims for penalties, interest and retrospective contributions cannot be granted in the absence of a concrete assessment.

Issue Three:          Whether the Defendant’s objections on service and affidavit defects defeat the Claimant’s case

The Defendant argued that the notices and letters relied upon by the Claimant were served on the “Manager, Senior Special Bread” and not on him personally, and that such service is ineffective. He also challenged paragraphs 11 (a), (b) and (c) of the Claimant’s affidavit as containing extraneous matters contrary to section 115 (2) of the Evidence Act, 2011.

On service, the substance of the Act does not make service of demand letters a condition precedent to the Court’s jurisdiction. This action is founded on statute, not on pre-action correspondence. Even if there were irregularities in service of letters, same would not defeat a statutory claim where the Defendant is already before the Court and has fully joined issues. So all the cases cited by the Claimant on this point are apposite.

On the objection to the affidavit, it is trite that where an affidavit contains both competent facts and extraneous matters, the proper order is to discountenance only the offending portions, not to strike out the entire affidavit. See Odey v. Alaga (2021) 13 NWLR (Pt. 1792) 1. The Defendant did not demonstrate that the alleged offending paragraphs are the sole foundation of the Claimant’s case. I accordingly discountenance any argumentative portions but hold that the affidavit remains substantially valid.

In the final analysis, I find that the Claimant has partially succeeded in this action. Accordingly, it is hereby declared and ordered as follows:

1.     It is declared that the Defendant is an employer within the meaning of the Employees’ Compensation Act, 2010.

2.     It is declared that the Defendant is under a statutory obligation to register with the Claimant and to furnish accurate particulars of his payroll as required by the Act.

3.     An order is made compelling the Defendant to register with the Claimant within 30 days from the date of this judgment.

4.     An order is made compelling the Defendant to furnish the Claimant with complete and accurate payroll information within 30 days to enable proper assessment under the Act.

5.     An order is made restraining the Defendant from denying authorised officers of the Claimant access to his workplace for the purpose of inspection and examination in accordance with sections 53 and 54 of the Act.

6.     Reliefs relating to retrospective monetary contributions, penalties, interest and cost of litigation are refused for want of proof and assessment.

Judgment entered accordingly

 

 

 

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HON. JUSTICE M. A. NAMTARI