Ansaldo Nigeria Limited V. National Provident Fund Management Board (1991)
LawGlobal-Hub Lead Judgment Report
OLATAWURA, J.S.C.
This appeal turns on the interpretation of the meaning of revenue within the con of the jurisdiction conferred on the Federal High Court under the Federal High Court Act, 1973 (now Cap 134 of the Laws of the Federation, 1990). It also raises the issue whether the contributions made and payable under the National Provident Fund Act of 1961 (now Cap. 273 of the Laws of the Federation,1990) can qualify as revenue of the Federal Government of Nigeria.
The appellant was charged in the Lagos Judicial Division of the Federal High Court of Nigeria with three counts which read as follows:
COUNT I
THAT YOU, ANSALDO NIGERIA LIMITED of No. 170, Awolowo Road, Ikoyi, in the Lagos Judicial Division being an employer within the meaning of National Provident Fund Act 1961, failed to register all your workers by your Provident Fund form NPF 13 cards in respect of each of your worker are required by Section 8(1) of the National Provident Fund (General) Regulations 1961, and thereby committed an offence punishable under Section 35(1)(f) of the National Provider Fund Act 1961.COUNT II
THAT YOU, ANSALDO NIGERIA LIMITED of No. 17 Awolowo Road, Ikoyi, in the Lagos Judicial Division, being a Employer within the meaning of National Provident Fund Act 1961, failed to pay contributions prescribed for workers an Employers, as stipulated in the third schedule to the Act, for the period between April 1983 and October 1983 contrary to Section 13(1) of the National Provident Fund Act 1961 and thereby committed an offence punishable under Section 35(1)( d) of the National Provident Fund Act, 1961.COUNT III:
THAT YOU, ANSALDO NIGERIA LIMITED of No. 10, Awolowo Road, Ikoyi, in Lagos Judicial Division, being a employer within the meaning of National Provident Fund Act 1961 failed to pay contributions on behalf of your casual worker contrary to Section 13 of the National Provident Fund (Genera) Regulations 1961 and thereby committed an offence punishable under Section 35(1)(f) of the National Provident Fund Act 1961.”
On a motion on notice the Appellant raised an objection to the charge and prayed the Federal High Court to strike out the charge on the ground that the Federal High Court has no jurisdiction “since the charge herein does not relate to criminal proceedings pertaining to the revenue of the Federal Government.” The objection was raised before Belgore J. (as he then was), the learned trial Judge overruled the objection.
The appellant appealed to the Court of Appeal against the ruling. In unanimous decision of that Court, Coram; Ademola, Nnaemeka-Agu and Kolawole, JJ.C.A., the appeal was dismissed. In the lead judgment of Nnaemeka-Agu J.C.A. (as he then was), the learned justice of that Court of Appeal said:
“No serious issue was really raised in this appeal as to whether or not the Federal High Court would have the jurisdiction to entertain the charge once it is found that the contribution is part of the revenue of the Federal Government and that the respondent is an organ of the Federal Government. This is because once these are decided positively it will follow that the court will have jurisdiction under Section 7(2) of the Federal High Court Act, 1973, to entertain any criminal causes or matters arising out of or connected with the matters over which it has civil jurisdiction.”
An appeal to this court against that judgment is based on one ground of appeal. This ground reads thus:
“The Court of Appeal erred in law in holding that the Federal High Court had jurisdiction to hear the charge brought against the Appellant by the respondent.
Particulars of Error
(a) The criminal jurisdiction conferred upon the Federal High Court by the Federal High Court Act, 1973 extends only to criminal causes and matters arising out of or connected with matters in respect of which jurisdiction is conferred on that court in civil matters.
(b) The criminal charge brought by the respondent against the appellant is not a criminal cause or matter arising out of or connected with matters in respect of which the Federal High Court has any jurisdiction.
(c) Income or money that does not go to the purse of the Federal Government, or that does not fall within the description and provisions of Sections 74, 75, 76 and 149 is not revenue of the Federal Government, and consequently matters relating to such income or money do not come within the provisions of Section 7(1)( a) of the Federal High Court, 1973.”
Briefs were filed by the appellant and the respondent. The only question for determination in the appellant’s brief is as follows:
“The appellant respectfully submits that the main question for determination in this appeal is whether contributions payable under the National Provident Fund Act, 1961 amount to “revenue of the Government of the Federation” within the meaning of Section 7(1)(a) of the Federal High Court Act 1973.”
On the other hand, the Respondent raised three questions:
“(a) Do the contributions payable under the National Provident Fund Act, 1961 form part of the “revenue of the Government of the Federation”
(b) Is the respondent an organ of the Federal Government, and/or a person acting on behalf of the Federal Government as contemplated by Section 7 of the Federal High Court Act, 1973
(c) Are the charges against the appellant in respect of criminal causes and matters arising out of, or connected with any of the matters in which jurisdiction is conferred upon the Federal High Court by Section 7(1)(a) of the Federal High Court Act, 1973.”
The learned Counsel for the appellant Mr. Ogundipe referred to and relied on the appellant’s brief dated 5th May 1987 and filed on the same day.
The learned counsel pointed out that the second issue raised in the lower court is no longer an issue in this court. Learned counsel referred to the National Provident Fund Act, 1961 and National Provident Fund (Management Board Etc.) Decree, 1974 and section 8(2) of the 1974 Decree. Learned Counsel again referred to sections 74 and 149 of the 1979 Constitution. Section 74 of the 1979 Constitution deals with the Establishment of Consolidated Revenue Fund, whereas section 149 of the same Constitution covers “the Federation Account” where all revenues subject to certain named exceptions collected by the Government of the Federation shall be paid. Learned Counsel then submitted that the National Provident Fund, for the purpose it was created, cannot form part of Government Revenue in that the money from the fund can neither be paid into the Consolidated Account nor the Federation Account. Since it is a trust money, learned Counsel further contended, the Government cannot take out of it to utilise it for its own purpose as it belongs to the workers. Learned Counsel referred to Section 36(1) of the National Provident Fund Act 1961 and submitted that if the money belongs to it, it does not require any authority or power to sue under the subsection. He described the debt under section 36(1) of the National Provident Fund Act 1961 as a national debt. Learned Counsel christened section 36 of the Act a deeming provision. He cited the following cases:
St. Aubyn (L.M.) and Others v. Attorney-General (No.2) (1951) 2 All E.R.473 at p. 498 paragraphs F and G.
Barclays Balik Ltd. v. Inland Revenue Commissioners (1960) 2 All E.R. 817;
Lush (Inspector of Taxes) v. Coles (1967) 2 All E.R. 585/588.
Learned Counsel then urged the Court to take a narrow view of the term “revenue.” He finally asked that the appeal be allowed and the charge be struck out.
In his own reply and after adopting his brief dated 15th June, 1987, Mr. Odueche the learned counsel for the respondent submitted that the provisions of the National Provident Fund Act 1961 are clear on the issue whether the funds form part of the revenue. He referred specifically to sections 14 and 32 of the Act. He referred to section 13 of the National Provident Fund (General) Regulations 1961 which provides for other forms of contributions which cannot be described or regarded as Trust property. This section deals with casual workers. He finally urged that the appeal be dismissed. Mr. Ogundipe referred to Section 31(3) of the National Provident Fund Act, 1961 which has been repealed by the 1974 Decree. He re-emphasised his earlier submission that all moneys within the fund are trust money regardless of where they come from.
It is better to look at the provision of section 36(1) of the National Provident Fund Act 1961 (hereinafter referred to as the 1961 Act). It provides:
“Notwithstanding any other provisions of this Act, a contribution to the Fund may be recoverable by action as a debt owing to the Federal Government, at any time within six years from the date when the contribution became due”
Under the interpretation section i.e. section 2(1) of the 1961 Act, “contributions” is defined as “means the contributions of the employer or of the worker, as the case may be, payable under this Act.” This interpretation however is further enlarged under section 36(3) of the 1961 Act to include “any interest or penalty payable or imposed for non-payment or for late payment as the case may be.” Mr. Ogundipe has submitted that the debt recoverable under section 36(1) of the 1961 Act is a national debt. I am not persuaded to accept such interpretation. I am of the firm view that it is not a national debt. His submission is predicated on his earlier submission that the money does not belong to the Federal Government since it belongs to the workers and consequently the Federal Government holds it in trust for the workers. It would appear, since revenue is not defined within the 1961 Act, one will have to fall back on the jurisdiction of the Federal High Court which is being questioned. Section 7(1)(a) of the Federal High Court Act, 1973 (now Cap. 134 of the Laws of the Federation, 1990) provides:
“The Federal High Court shall have and exercise jurisdiction in civil causes and matters:-
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party.”
Mr. Ogundipe in the course of his oral submission agreed with the definition of the word “revenue” as laid down in Chief P. I. Mokelu v. Federal Commissioner for Works & Housing (1976) 3 S.C.35. This case was relied upon in the ruling of the Federal high Court and the judgment of the lower court. This court defines revenue in the following words:
“… revenue in section 7(1)(a) of the Federal Revenue Court Decree means money or money-worth coming to the purse of the Federal Government…
It is now necessary to look at some of the provisions of the 1961 Act so as to find out whether the money or contributions or the failure to comply with the mandatory provisions of some of its provision takes it out of the control of the Federal Government. The learned counsel for the appellant described what is paid as “trust money” Section 31 of the 1961 Act lays down the money that can be paid into what the Act aptly called the National Provident Reserve Fund. This section provides:
“31. There shall be a reserve fund of the National Provident Fund to be known as the National Provident Reserve Fund into which shall be paid-
(a) all fines and penalties under this Act;
(b) contributions by employers or workers which for any reason may not be allocated to individual accounts in the Fund; and
(c) any other moneys authorised to be so paid under This Act.
(2) If the net rate of interest added to the accounts of contributors for the previous financial year is not less than three per centum, there may be appropriated to the Reserve Fund on the certificate of the Federal Minister of Finance any part of the general income of the Fund for the next ensuing financial year not allocated to individual accounts.
- (Repealed by Decree 39 of 1974)”
The appellant’s counsel has devoted a large part of his submission to what is due from the workers thereby ignoring the provision for finances and penalties. It is not within the contemplation of the Act that the fines so collected due to non-compliance with the Act are to be paid to the workers. Fines are imposed in contravention of any law or regulation and such fines when collected are paid to the Government. These fines form part of the revenue of the Government.
I agree with the submissions of the Respondent’s Counsel when he said in the Respondent’s brief that “All contributions, fines etc. are revenue of the Federal Government and not simple debts” or in the language of Mr. Ogundipe “Notional debt.” They are debt properly incurred for non-compliance with the provisions of the 1961 Act. Another source of revenue to the Government is the contributions made by Casual Workers. These casual workers who paid certain sum of money to the Government derive no benefit by way of refund to them from this fund. There can be no offence committed under the Act unless there is a breach of the provisions.
Once there is a loss to the fund there is an offence by virtue of section 35(1)(f) of the 1961 Act. Once any employer fails therefore to pay the required sum to the Fund as set out under section 13(1) of the 1961 Act, a loss is thereby sustained and for which an offence is committed under section 35(1)(d) of the 1961 Act. The appellant has not argued that the National Provident Fund Management Board is not an organ of the Government. The financial provision made under section 6 of the Decree 39 of 1974 is made subject to section 32 of the 1961 Act. It is reproduced below.
It is an organ of the government within the contemplation of section 7(1)(a) of the Federal High Court Acr, Cap.134 of the Laws of the Federation, 1990.
Mr. Ogundipe has also submitted since the contributions to the National Provident Fund are not included within the exceptions mentioned in the revenue collected by the Federal Government, therefore whatever be the contribution from the National Provident Fund, it cannot be paid into the Federation Account. Reliance was placed on Section 32 of the 1961 Act by the Court of Appeal. I will quote that section also. It provides:-
“32 – Accounts shall be kept of moneys in the Fund and in the Reserve Fund in such form as the Minister after consultation with the Federal Minister of Finance or the Director of Audit of the Federation, as the case may be, may approve: and subject to the provisions of this Act, the accounts shall form part of the public accounts of the Federation…
It appears to me crystal clear that the provision that the Accounts (of the National Provident Fund) “shall form part of the public accounts of the Federation” makes it abundantly clear that the payment of the money within the fund is subject to the approval of the Federal Government. See section 7 of Decree 39 of 1974.
The combined effect of sections 31, (as amended) 32 and 33 of the 1961 Act removes any doubt as to whether the money collected under the Act is part of the revenue of the Federation.
The English cases cited by Mr. Ogundipe are not helpful in his search for the meaning of revenue. For instance, the case of Lush v. Coles (supra) differentiates between the revenue of “the Kingdom” and revenues of a Local Government. In this country, we have three tiers of government: the Federal Government, the State Government and the Local Government. Each has a system of collecting its revenue. Money provided by each government is governed by separate laws. We are concerned in this appeal with revenue due to the Federal Government and not any other.
In order to show that the debt due under section 36(1) of the 1961 Act is not a national debt, it is better to look at other statutes for guidance. The provisions of section 63(1) of the Companies Income Tax 1961 and section 46(1) of the Personal Income Tax 1961 show conclusively that when a debt is said to be due under any enactment, subject to any qualification, it is a debt in the ordinary meaning of the word. Section 63(1) of the Companies Income Tax 1961 provides:
“63.(1) Tax may be sued for and recovered in a court of competent jurisdiction, at the place stated in the notice of assessment as being the place at which payment should be made, by the Board in its official name with full costs of action from the company charged therewith as a debt due to the Government of the Federation.”
Also Section 46(1) of the Personal Income Tax 1961 provides:
“46.(1) Income tax may be sued for and recovered in a court of competent jurisdiction in Lagos by the Board in its official name with full costs of action from the person charged therewith as a debt due to the Government of the Federation”
The same phrase or words dealing with financial provisions in other statutes should not have different interpretation so as to avoid inconsistency unless there is any proviso in the latter statutes. Where an interpretation of a statute will result in defeating the object of the statute, the court will not lend its weight to such interpretation. The language of the statute must not be stretched to defeat the aim of the statute. So in this 1961 Act where the Act specifically makes provision for a debt due for non-compliance with the provision of the Act, it is not a national debt. I, therefore agree with Nnaemeka-Agu. J.C.A. (as he then was) when he said:
It appears to me that as the contributions are recoverable by action as a debt owing to the Federal Government, any Institution or machinery normally used for recovering such a debt owed against the Federal Government, in this case the Federal High Court would be competently used for recovering the contributions.”
Sections 74 and 149 of the Constitution relied upon appears to me not much of assistance to the Appellant. These sections cannot be interpreted to mean that any money belonging to the Federal Government from any other source shall, on the provisions of these sections, be interpreted to exclude other source of revenue.
Section 74 is to protect the revenues under that section. The Distributable Pool account under section 149 of the 1979 Constitution is to ensure the distribution due to the three tiers of government is observed. For example, section 149(4) of the 1979 Constitution makes adequate provision for the funding of Local Government Councils through the State Governments.
It is my view that sections 74 and 149 of the 1979 Constitution of the Federation cannot in any way adversely affect the jurisdiction in revenue matters in so far as the Federal High Court is concerned.
I place on records the research made by Mr. Ogundipe and the contributions made by Mr. Odueche so that we can arrive at a just decision.
In sum, the appeal fails and it is hereby dismissed.
I affirm the decision of the Court of Appeal. The Federal High Court shall proceed with the trial of the Appellant in charge No.FHC/L/21C/85:
National Provident Management Board v. Ansaldo (Nigeria) Ltd.
SC.20/1987
