NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD -VS- BABINGTON MACAULAY JUNIOR SEMINARYNational Industrial Court of Nigeria- Judgment Portal

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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

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

THIS WEDNESDAY, 30^TH DAY OF APRIL,2025 SUIT NO: NICN/LA/259/2023

BETWEEN

NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD-- CLAIMANT

AND

BABINGTON MACAULAY JUNIOR SEMINARY------------------------------- DEFENDANT

RULING/JUDGMENT

By an Originating Summons dated and filed on the 31^st August, 2023, the Claimant sought the answers to the following questions to be determined by this Honourable Court-viz:

1. Considering the extant provisions of Sections 33(1), 39(1)(a) and (b) (i), (ii), (iii), 40(1) (a), (b) and 73 of the Employees Compensation Act, 2010, whether the Defendant is an employer within the meaning of Employees Compensation Act, 2010 and by so doing obligated to make a minimum monthly contribution of 1.0 percent of its total monthly payroll into the Employees’ Compensation Fund established under the Act and managed by the Claimant.

2. If the answer to Question 1 above is in the affirmative, does the Defendant have an option whether or not to cause to be furnished to the Claimant an estimate of the probable amount of its payroll, and whether or not to make a minimum monthly contribution of 1.0 percent of its total monthly payroll into the Employees Compensation Fund managed by the Claimant.

3. Having regard to the provisions of Section 39 (2) of the Employees’ Compensation Act, 2010, where the Defendant fails to cause to be furnished to the Claimant an estimate of the probable amount of the Defendant’s payroll, whether the Defendant is liable to pay as a penalty to the default, a percentage of the assessment determined by the Claimant, and the Claimant may make its own estimate of the payrolls, assess and levy on that estimate and the Defendant is bound by it.

4. lf an employer within the meaning of the Employees’ Compensation Act, 20I0, and considering the provisions of Section 39 (4) of the Employees’ Compensation Act, 2010, where the Defendant do not furnish complete and accurate particulars of the Defendant’s payroll to the Claimant, or if the particulars of the payroll is not true and accurate, whether the Defendant, for every failure to comply and for every such particulars of the payroll shall be liable to imprisonment or fine, or both imprisonment and fine, jointly and severally.

5. Having regard to the combined provisions of Sections 53 (1), (2), (3), (4), (5), (6) and (7), and 54 (a), (b), (c), (d), (e), (f) and (g) of the Employees’ Compensation Act, 2010 whether an officer of the Claimant or any person authorized thereby, at any time and at all reasonable hours, can enter the Defendant’s workplace with or without warrant or notice and require the production of the Defendant’s payrolls and account records for inspection or examination of same with a view to ascertaining the accurateness of the Defendant’s payroll and assessing same.

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

7. Whether having regard to the combined provisions of Sections 33 (1) and 39 (1) of the Employees’ Compensation Act, 2010, the Claimant is entitled to be furnished by the Defendant estimates of the probable amount of the Defendant’s payroll from July, When the Employees’ Compensation Act. 2010 became operational, up to date, and is entitled to 1.0 percent of Defendant’s total monthly payroll from July. 2011, when the Employees’ Compensation Act, 2010 became operational, up to date.

The Claimant whereof seeks 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, 201l 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 the Defendant’s total monthly payroll from July, 201l 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 July, 201l 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 July, 2011 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 Agunfoye Lugbusi Village. Ikaradu, Lagos, Nigeria for purposes of inspecting and examining the Defendant’s payrolls and other documents necessary for assessment of Defendant’s minimum monthly contribution of 1.0 percent of the total monthly payroll from July, 2011 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 July, 2011 up to date and thereafter for purposes of assessing the Defendant of the minimum monthly contribution of 1.0 percent of the total payroll from July, 2011 up to date and thereafter.

7. An ORDER directing the Defendant to pay into the Employees’ Compensation Fund 10% interest on the Defendant’s total monthly payroll from July 2011 up to date.

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

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

The Originating Summons is supported by a 20 paragraphs affidavit deposed to by one Kayode Akinrolabu, 9 exhibits are attached, and an accompanied written address of the learned counsel.

The Claimant’s counsel raised three issues for determination in the written address captured hereinafter in this judgment.

Upon service of the Originating Summons, the Defendant filed a notice of preliminary objection dated 16/10/2024, and also a 23 paragraphs counter affidavit against the summons deposed to by Venerable Victor Ayo Olusa on 8^th November, 2024, along with a written address of learned counsel wherein the issues raised are as follows:

1. Whether this Honourable Court has jurisdiction to determine when; (a) The Defendant is not a juristic person that can be sued and the Defendant has no legal personality; (b) the Defendant is not an Employer within the meaning of the Employees’ Compensation Act, 2010; (c) The Claimant failed to sue the right person in violation of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Defendant’s counsel filed a notice of preliminary objection on 16/10/2024, praying the court for the following orders:

1. An Order of this Honourable Court striking out this suit for lack of jurisdiction; and

2. Such further or other orders as this Honourable Court may deem fit to make in the circumstances.

The ground for this objection is that:

The Defendant in this suit is a non- juristic person as it has no legal personality and therefore, this action cannot be maintained by law.

Attached to the notice of preliminary objection is a 7 paragraphs affidavit deposed to by Venerable Victor Ayo Olusa, Executive Secretary of Lagos Anglican Schools Management Board, and a written address in support wherein counsel raised a sole issue for determination to wit:

“Whether the court has jurisdiction to hear this originating summons brought by the Claimant against the Defendant that has no legal personality where there is no proof before the court that the Defendant is a juristic person.”

Learned counsel submitted that the Defendant sued on the face of the Originating Summons in this suit is not a juristic person. The Defendant is one of the Schools founded by a Foundation owned by the five (5) Anglican Dioceses in Lagos State. It is the Foundation that is recognized under the Law and as such it is the Foundation that can sue and be sued. In affirming the position of the law that it is only a juristic person that can sue and be sued, counsel referred to the Supreme Court case of The Administrators/Executors of The Estate Of Gen. Sani Abacha (Deceased) v. Samuel David Eke-Spiff & Ors (2009) 7 NWLR (Pt. 1139) 97 at 141

Counsel submitted that the law is trite that only a juristic person can sue and be sued. In cases of non- natural juristic persons as in this present action, their corporate name by which they have been registered is the only valid and legal name by which to institute the action. Counsel relied on the cases of Principal GS School Ikachi v. Igbudu (2005) 12 NWLR (Pt.940) 543 at 566 paragraph C-D and E-F; Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 341.

Counsel further submitted that this failure to sue in the proper corporate name of the Defendant is not in the realm of mere technicalities but goes to the root of this action. This is because where a non-juristic entity is sued, the consequence as stated by law is that the Court is without jurisdiction to entertain the suit and as such any action taken by the Court is a nullity.

It is the submission of counsel that the issue of jurisdiction can be raised at any time even for the first time in the Supreme Court on appeal as it is so fundamental that all the proceedings however well conducted amounts to nothing but a nullity. Counsel relied on the cases of Bronik Motors v. WEMA Bank Ltd. (1993) 1 SCNLR 310, Katto v. CBN (1991) 9 NWLR (Pt. 214) 126, Odoin v. Agu (1992) 2 NWLR (Pt. 229) 350 Jerie Nig. Ltd. V. Union Bank Plc. (2001) 1 MJSC 138 at 147 and Arjay Ltd v. Airline Management Support Ltd. (2003) 5 MJSC 1

Counsel further submitted that where a court has no jurisdiction, the only order the court can make is to strike out the suit. Counsel referred the court to the case of Isokwa Motors (Nig) Ltd v. UBA Plc (2008) 2 MJSC 104. At the last adjourned date of Monday 14^th October 2024, this Honourable Court ordered the Defendant/Applicant to pay cost of N100,000.00 to the Claimant despite the Court being informed that the Defendant was not a juristic person that can be sued and that the only reason a Notice of Preliminary Objection was not filed was because the Defendant got to know of the date of Monday 14^th October, 2024 on Friday evening 11^th October, 2024 by a WhatsApp message sent by a legal officer of the Claimant. Counsel further submitted that the order of cost is a nullity as the court has no jurisdiction to order. Any judgment or decision given without jurisdiction is a nullity, and the same court has the right to set its null and void orders. Counsel referred the court to the case of Ekanem Otu v. ACB International Bank Plc (2008) 3 MJSC 191.

It is the submission of counsel that the only way to prove the legal personality of a company is to plead and tender its Certificate of Incorporation. Counsel referred the court to the case of The Registered Trustees of the Saviour’s Apostolic Church of Nigeria (2020) 11 NWLR (pt. 1734) 51 SC.

Counsel maintained that it is the law that the onus is on the party who claims juristic personality to prove the status by providing evidence of Incorporation. Counsel urged the court to strike out the suit.

The Claimant filed an 8 paragraphs counter affidavit deposed to by Ogundimu Temitope Omotayo, Manager in the Nigeria Social Insurance Trust Fund, 134, Lagos Road, Ikorodu, Lagos in response to the Defendant’s preliminary objection on 29^th October, 2024, one exhibit attached, and an accompanying written address of learned counsel, wherein the following issues for determination were raised:

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

(a) Is the Defendant an employer of labour within the meaning of the Employees’ Compensation Act 2010?

(b) Whether by the construction of the extant provisions of Sections 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 July 2011 up to date.

Learned counsel submitted on issue one, that the subject matter in contention borders on the Defendant/Applicant’s refusal to comply with the compulsory and statutory contribution to be made on behalf of their employees under the Employees’ Compensation Act 2010 (ECA 2010). The Employees’ Compensation Scheme is the scheme implemented under the Act to provide compensation to employees (or their Next of kin) who suffer from injuries, disabilities, disease or death arising out of or in the course of employment.

Counsel submitted that from the originating process, it is clear that the instant suit and the reliefs sought are predicated on the provisions of the Employees’ Compensation Act (ECA), 2010 due to the Defendants refusal to comply with his obligations as an employer under the ECA 2010. Counsel referred the court to Section 73 of the Employees’ Compensation Act. From the provisions of the Act, it is evident that all employers and employees in the private and public sector in Nigeria are covered under the ECA 20I0, hence, from the affidavit evidence particularly the facts contained in EXHIBIT ‘NSITFMB 1(a), the Defendant operates as an employer known and called ‘BABINGTON MACAULAY JUNIOR SEMINARY’ and has operated prior to the commencement of the Employees’ Compensation Act, 2010 with staff currently in their employment.

It is the submission of counsel that by the provisions of Section 73 of the Employees’ Compensation Act, 2010, the Defendant is for all intents and purposes an employer under the Employees’ Compensation Act. Furthermore, counsel referred the court to Section 2(2) and Section 56 of the Employees’ Compensation Act, 2010 which gives the Nigeria Social Insurance Trust Fund Management Board the power to implement the provisions of the ECA 2010 as well as the fund created under Section 56.

Counsel submitted that the Nigeria Social Insurance Trust Fund Management Board is responsible for the implementation of the Employees Compensation Act 2010 and is the agency in charge of the following amongst others:

1. Collection of contributions from employers.

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

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

It is the submission of counsel that where an employer has failed to comply with the provisions of The Employees’ Compensation Act 2010 and has also failed to make the mandatory contributions as prescribed by the Act, the NSITF Management Board has the power to prosecute the employer to comply with the Act and recover all contributions due.

Counsel submitted on issue two that by Section 36(1) of the Employees’ Compensation Act, 2010, NSITF has the right to proceed against the defendant being an employer of labour in court having defaulted to make contributions to the Scheme.

Counsel submitted on issue three that by Order 13 Rule 26 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, the Claimant can institute an action against the Defendant where it is manifest that it carries on business in the name and style of Babington Macaulay Junior Seminary with Lagos State Government Approval Number IKD/24060 as seen in paragraph 4-5 of the affidavit evidence. Counsel maintained that it is incongruous for the Defendant to challenge this suit on the basis that the Defendant is not a juristic person.

Claimant’s counsel filed a 27 paragraphs further and better affidavit in response to the Defendant’s counter affidavit to the Originating Summons, deposed to by Anifowoshe Sikiru, Assistant Manager in the Nigeria Social Insurance Trust Fund, 134, Ikorodu Road, Lagos State, on 26/11/2024, and a reply on point of law, wherein counsel raised the following issues for determination;

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

(a) Is the Defendant an employer of labour within the meaning of the Employees’ Compensation Act 2010?

Counsel submitted on issue one that the subject matter in contention borders on the Defendant/Applicant’s refusal to comply with the compulsory and statutory contribution to be made on behalf of their employees under the Employees’ Compensation Act 2010 (ECA 2010). The Employees’ Compensation Scheme is the scheme implemented under the Act to provide compensation to employees (or their Next of kin) who suffer from injuries, disabilities, disease or death arising out of or in the course of employment.

Counsel submitted that from the originating process, it is clear that the instant suit and the reliefs sought are predicated on the provisions of the Employees’ Compensation Act (ECA), 201l due to the Defendants refusal to comply with his obligations as an employer under the ECA 2010. Counsel referred the court to Section 73 of the Employees’ Compensation Act. From the provisions of the Act, it is evident that all employers and employees in the private and public sector in Nigeria are covered under the ECA 20IO. Hence, from the affidavit evidence particularly the facts contained in EXHIBIT ‘NSITFMB 1(a), the Defendant operates as an employer known and called ‘BABINGTON MACAULAY JUNIOR SEMINARY’ and has operated prior to the commencement of the Employees’ Compensation Act, 2010 with staff currently in their employment.

1. Collection of contributions from employers.

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

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

On the fixed day for hearing this matter, counsel adopted their respective written addresses and the matter was adjourned for judgment hence this verdict.

SUBMISSIONS OF DEFENDANT’S COUNSEL The Defendant’s counsel filed a 23 paragraphs counter affidavit, deposed to by Venerable Victor Ayo Olusa. Counsel formulated three issues for determination to wit:

Whether this Honourable Court has jurisdiction to determine this suit when:

(a) the Defendant is not a juristic person that can be sued as the Defendant has no legal personality

(b) the Defendant is not an Employer within the meaning of the Employees’ Compensation Act, 2010

(c) the Claimant failed to sue the right person in violation of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)

Learned counsel submitted on issue (a) that a fundamental aspect of due diligence in litigation is that a party seeking redress in a court must ensure that the matter is brought against the proper party and that the said party on record is a juristic person. According to the Counter Affidavit, the registered, incorporated and recognized body for all the schools owned by the five (5) Anglican Dioceses in Lagos State including the Defendant herein, is Archbishop Abiodun Adetiloye Foundation. Counsel submitted that the Foundation in pursuit of its objectives, further established the Lagos Anglican Schools Management Board and distilled part of its powers to the Board to administer all the Schools belonging to the Dioceses. The Board is also not registered as a corporate entity under the law and as such the Archbishop Abiodun Adetiloye Foundation having been registered as an Incorporated Trustee under Part F of the Companies and Allied Matters Act, 2020, is the appropriate body to sue or be sued in any matter that concerns the management and administration of all the Secondary Schools.

Counsel submitted further that the position therefore is that, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. Counsel referred the court to the case of Agbonmagbe Bank Ltd. V. General Manager G.B. Ollivant Ltd. & Anor. (1961)1 ALL NLR 116.

Counsel submitted on issues (b) and (c), the Claimant argued that the Defendant is an Employer of labour within the meaning of the Employees’ Compensation Act, 2010. This cannot be true as paragraphs 5 to 9 of the Counter Affidavit clearly showed that the Defendant is not an employer because the real employer duly registered under Law is the Archbishop Abiodun Adetiloye Foundation.

Counsel further submitted that the argument of the Claimant on Order 13 Rule 26 of the National Industrial Court (Civil Procedure) Rules, 2017 cannot avail the Claimant. Counsel referred the court to the provision in the High Court of Lagos State (Civil Procedure) Rules, the book published by Late Mr. Nwadialo, SAN, particularly at page 101 of the book: “Civil Procedure in Nigeria, 2^nd edition”.

It is the submission of counsel that the Defendant does not fall within the scope of any of the categories of persons, entities, companies, associations, etc that can sue or be sued in its own name. The proper person that is registered under Part F of the Companies and Allied Matters Act, 2020 and is the Employer of the Staff in the Defendant school and other schools owned by it within the meaning of Sections 33 (1); 39(1 )(a)(b)(i) (ii)(ii); 40 (1)(a)(b) and 73 of the Employees’ Compensation Act is the Archbishop Abiodun Adetiloye Foundation. The Defendant is neither registered as a business name, a firm, a company. Hence, the Foundation is the founder and Employer of all the staff of all the Schools and is therefore the appropriate person to sue or be sued in line with Section 36(1) of the Nigerian Constitution as amended in order to determine its rights and obligations.

It is the submission of counsel that the Constitution of the Federal Republic of Nigeria is superior to any rules of court or statute and if any provision is contrary to the Constitution, the Constitution must prevail. Therefore, Order 13 Rule 26 does not apply in this matter at all.

Counsel referred the court to paragraphs 12-13 of the Counter-Affidavit wherein the deponent stated that the email address and phone numbers used in the service of the Originating Summons on the Defendant is a wrong address and the Foundation was only aware of this action on the 26^th of April, 2024, eight (8) months after the originating summons was filed. Also, paragraph 13 of the Counter Affidavit wherein the deponent stated that the correspondences which the Claimant purportedly claims to have served on the Defendant were not received by the Foundation as the said recipients of the attached exhibits were unknown to the Defendant. Counsel referred the court to the case of Justice Titus Oyeyemi (Rtd) & Ors v. Timothy Owoeye & Anor (2017) 12 NWLR (Pt. 1580) 364 SC.

Learned counsel submitted that the Claimant’s argument that the Defendant is registered with the Lagos State Ministry of Education is ridiculous. It is well known that the Lagos State Ministry of Education, an agency of the Government of Lagos State cannot confer legal status on an artificial body. The only body that can confer legal personality on artificial bodies is the Corporate Affairs Commission in compliance with the provisions of the Companies and Allied Matters Act, 2020. Counsel maintained that The Lagos State Government does not incorporate schools but grant approval which must be renewed annually on the payment of prescribed fees and in compliance with guidelines of the State Ministry of Education. There is no doubt that the Defendant has the approval of the Lagos State Government to operate as a school. However, this approval was obtained by the Dioceses for the establishment of all the Schools owned by them through the Foundation.

It is the submission of counsel that the settlement meeting of 14^th May 2024 between the Claimant and the Defendant has been breached by the Claimant as the Claimant was supposed to withdraw the suit against the Defendant so that the real employer, Archbishop Abiodun Adetiloye Foundation, can register with it all their schools and even get all other private schools in Lagos registered with the Claimant in consonance with the Employees’ Compensation Act 2010 as the Deponent to the Counter Affidavit is a member oft the Executive Committee of the association of all private schools in Lagos State.

SUBMISSIONS OF CLAIMANT’S COUNSEL

Counsel raised three issues for determination to wit;

1. Whether by the construction of the extant provisions of Sections 73; 33 (1): 39 (1) (a) (b) (i) (ii) (iii) (2) (3) and (4): 40 (1) (a) (b) (2) and (5) of the Employees’ Compensation Act, 2010 the 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 July, 2011, when the Employees’ Compensation Act, 2010 became operational, 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 July. 201l up to date.

2. Whether by the construction of the extant provisions of Sections 34 (1) (2) (a) (b) and (3): and 36 (1) and (2) of the Employees’ Compensation Act 2010, the Claimant is entitled to and has a cause of action against the Defendant for the unpaid 1.0 percent minimum monthly contribution of the Defendant’s total monthly payroll into the Employees’ Compensation Fund for the period of July, 201l up to date.

3. Whether having regard to the provisions of Sections 53 (1) (2) (3) (4) (5) (6) and (7): and 54 (a) (b) (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.

Learned counsel submitted that the issues will be argued together considering that they are inter-woven and close knitted. In answer to all the issues counsel contended that it is in the AFFIRMATIVE.

Counsel submitted that by the provisions herein referred to are Sections 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).

Counsel contended that from the affidavit evidence, particularly paragraphs 4- 19, the Defendant operates with an employer name known as Babington Macaulay Junior Seminary, with Lagos State Government Approval Number IKD/24060, and has operated as a business since 1996, with persons working for her under a contract of employment as teachers and administrative staff.

Counsel further submitted that by the provisions of Section 73 of the Employees’ Compensation Act, 2010, the Defendant is for all intents and purposes an employer. The Defendant being an employer within the meaning of the Act is mandatorily required to make a minimum monthly contribution of 1.0 percent of its total monthly payroll into the Employees’ Compensation Fund established under Section 56 (1) of the Employees’ Compensation Act, 2010, pursuant to the provisions of Section 33 (1) of the Act .

Counsel contended that it is also the law, as encapsulated in Sections 39 and 40 of the Act that every employer shall cause to be furnished to the Claimant a complete and accurate estimate of the probable amount of the payroll of each of the employer’s industries within the scope of this Act. It is the Claimant’s affidavit evidence that the Defendant is being in arrears of payment of contributions since July, 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 the Defendant has wilfully neglected to make the minimum monthly contribution, and furnish the Claimant with its total monthly payroll, all in total breach of the provisions of the Employees’ Compensation Act. 2010.

It is the submission of counsel that officers of the Claimant have consistently been access to the Defendant’s payrolls and books of accounts for inspection in breach of the provisions of Sections 53 and 54 of the Employees’ Compensation Act. 2010. Counsel urged the Honourable Court to resolve the issues for determination in favour of the Claimant, and grant the reliefs sought.

DECISION OF THE COURT

I have carefully read through the processes filed and also listened attentively to the arguments of counsel on both sides. I have similarly in the same vein viewed the question raised by the Claimant in the Originating Summons and looked into the relevant provisions of the instruments in question and the authorities cited in the written addresses. I am of the firm view that the sole issue that could be all encompassing for the determination of this suit having regard to the issues raised above by counsel is:

Whether or not upon the consideration of the questions formulated for determination, the Claimant is entitled to the reliefs sought.

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

However, before delving into the substantive suit, it is pertinent to address the notice of preliminary objection filed by the Defendant on 16/10/2024, praying the court for an order striking out this suit for lack of jurisdiction.

The ground for the objection is that the Defendant in this suit is a non- juristic person as it has no legal personality and therefore, this action cannot be maintained in law.

Claimant counsel filed a counter affidavit in response to the Defendant’s notice of preliminary objection dated 29^th October, 2024, with one exhibit attached, and a written address.

The Defendant contended that it is not a juristic person and that the proper party to sue is the Archbishop Abiodun Adetiloye Foundation, which is the registered entity under Part F of the Companies and Allied Matters Act (CAMA) 2020.

The Claimant argued that the Defendant operates under the name “Babington Macaulay Junior Seminary” with Lagos State Government approval and is therefore a recognizable entity for the purpose of the ECA 2010.

Jurisdiction is fundamental and can be raised at any stage. See Bronik Motors v. WEMA Bank (1983) 1 SCNLR 296. A suit against a non-juristic person is incompetent. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

Let me say from the onset that the law attributes legal personality to natural and duly registered persons. In other words, the law attributes juristic personality that is the capacity to maintain and defend actions in court, to natural persons and artificial persons or institutions. They are known to law as legal persons. The implication is that only natural persons or a body of persons whom statutes have, either expressly or by implication, clothed with the garment of legal personality that can prosecute or defend law suits by that name. See Olu of Warri v. Esi (1958) SCNLR 384; Agbonmagbe Bank v. G. B. Ollivant Ltd. (1961)2 SCNLR 317; Ataguba & Co. V. Gura Nigeria Ltd.(2005) 8 NWLR (Pt. 927) 429; Maersk Line v. Addide Investments Ltd. (2002) 11 NWLR (Pt. 778) 317; Reptico S. A. Geneva v. AfriBank Nig Plc. (2013) 14 NWLR (Pt. 1373) 172; A.-G., Fed. V. ANPP (2003) 18 NWLR (Pt. 851) 182; Alhaji Mailafia Trading and Transport Co. Ltd. V. Veritas Insurance Co. Ltd. (1986) 4 NWLR (Pt. 38) 802; Admin./Exec., Estate of Abacha v. Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97; Bank of Baroda v. Iyalabani Coy Ltd. (2002) 13 NWLR (Pt. 785) 551; Randle v. Kwara Breweries Ltd. (1986) 6 SC 1; Calabar Municipal Govt. V. Honesty (2022) 7 NWLR (Pt.1817) 410, Carlen (Nig.) Ltd. V. Unijos [1994] 1 NWLR (Pt323) 631.

The law is also trite that naming a non-juristic person as a party is not a misnomer and amending the name to substitute a juristic person will not be allowed by the court; as so doing would amount to amending an invalid and void process. There cannot be an amendment of the name of an inappropriate party before a court especially where the juristic personality of the party sought to be amended is deficient. Therefore, naming a non-juristic person as a defendant in a suit is not and cannot be treated as a misnomer, and where this occurs, the name of the party cannot be amended to substitute a juristic person. Naming a non-juristic person is different from a misnomer. Once, it is established that a party lacks juristic personality; the question of amending the name would not arise because so doing would amount to awaking a dead person, which can never happen.

As pointed out earlier the general law is that any person, natural or artificial may sue and be sued in court. See Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt.105) 558. This means that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or impliedly, or by the common law either: (i) a legal personality under the name by which it may sue or be sued or; (ii) a right to sue or be sued by that name, for example, partnerships, trade unions, friendly societies and foreign institutions authorised by their law to sue and be sued. See Thomas v. Local Government Service Board (1965) NMLR 310; Gani Fawehnmi V NBA (NO.2) (supra).

Now, looking at the processes before the court, can it be said that the defendant/applicant in this case has no juristic personality to make it capable of being sued?

In the case at hand no statute has been referred to the court that establishes the defendant in this case which has either expressly or impliedly clothed the defendant with legal personality. See Carlen (Nig.) Ltd. V. Unijos (1994) 1 NWLR (Pt323) 631.

The Supreme Court in Administrators/Executors of the Estate of Gen. Sani Abacha (Deceased) v. Samuel David Eke-Spiff & Ors (2009) 7 NWLR (Pt. 1139) 97 at 141 held that only a juristic person can sue or be sued.

In Principal GS School Ikachi v. Igbudu (2005) 12 NWLR (Pt. 940) 543, the Court emphasized that an unincorporated entity lacks legal capacity to sue or be sued.

Section 823(1) of CAMA 2020 provides that only registered entities have legal personality.

The Claimant has not presented a Certificate of Incorporation to prove its legal status. The Claimant’s reliance on Order 13 Rule 26 of the NICN Rules 2017 (allowing suits against entities operating under a business name) is insufficient, as the Defendant is neither a registered business name nor a corporation.

The Archbishop Abiodun Adetiloye Foundation is the registered entity responsible for the Defendant’s operations. The Foundation is the proper party to be held liable for compliance with the ECA 2010.

The Defendant, though functionally an employer, is not a legal entity capable of bearing statutory obligations under the ECA 2010. The Defendant is not a juristic person and cannot be sued in its current name. While the Defendant may employ staff, its lack of legal personality renders it incapable of being sued for statutory contributions.

In view of lack of clear provisions of the law establishing the defendant in this case with requisite power whether expressly or impliedly to sue and be sued, I have no choice than to come to the conclusion that the defendant in this case is not a juristic person that can sue and be sued in law, as did the Court of Appeal in the case of S. D. Agoola & Ors v Saibu & Ors. (1991) 2 NWLR (Pt.175) 566,). See also Agbonmagbe Bank Ltd. V. General Manager, G.B. Ollivant Ltd. (1961) 1 All N.L.R. 116; Fawehinmi v. Nigerian Bar Association (No. 2) (1989) 2 N.W.L.R. (Pt.105) 558; Agoola & Ors. V Saibu & Anor (supra).

It is a fundamental principle of law that a non-juristic person cannot sue or be sued before a Court of law, and where a non-juristic person is made a party, the action is rendered incompetent and liable to be struck out, for the Court would have no jurisdiction to entertain it. I have the view that to establish the status of a company if there is dispute as to its juristic or legal personality, is by tendering a certificate of incorporation. I have not seen any certificate of incorporation of the defendant shown by the claimant See KEYSTONE BANK LTD v ABDULGAFARU YUSUF & CO. LTD (2021) LPELR-55646 CA 73-74. In a nutshell, production of certificate of incorporation by the claimant to show the juristic personality of the defendant in this case is required but not done.

Flowing from above, since the Defendant lacks legal capacity, this Court lacks jurisdiction to adjudicate the matter the way it is constituted. The proper party Archbishop Abiodun Adetiloye Foundation was not sued.

I find this suit incompetent for want of jurisdiction. The Notice of Preliminary Objection succeeds. This suit is liable to be struck out and same is hereby struck out for lack of jurisdiction. I do not need to venture into the substantive suit which if I do, will amount to an exercise in futility.

Ruling is entered accordingly.

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HON. JUSTICE S. A. YELWA

(JUDGE)