National Inland Waterways Authority V. The Governing Council of the Industrial Training Fund & Anor (2007)

LawGlobal-Hub Lead Judgment Report

CHIDI NWAOMA UWA, J.C.A.

The appellant as respondent in the lower court in a suit instituted by the Governing Council of the Industrial Training Fund as plaintiffs in which the plaintiffs by originating summons before the Federal High Court, Abuja claimed the following:-

(a) Declaration that respondent is within the contemplation of Decree No. 47 of 1991 as amended.

(b) Declaration that respondent has defaulted in complying with the plaintiffs/applicants enabling statute by not contributing 1% of gross payroll to the plaintiffs/applicants and which has accumulated to 30 million Naira only from 1999 – 2003 levy year.

(c) An order directing the respondent to comply forthwith with the applicants enabling Decree No. 47 of 1971 as amended.

When the matter proceeded to hearing the respondent now appellant filed a counter-affidavit and preliminary objection to the suit which were argued together. In the judgment of the lower court, all the reliefs sought were granted except the monetary sum of N30 million.

Dissatisfied with the judgment, the appellant filed its notice and grounds of appeal. Briefs of argument were subsequently filed and exchanged. In his brief of argument, the learned counsel for the appellant, Nasiru Biyankare, Esq. formulated the following issues for determination.

“1. Whether the trial Judge rightly or wrongly interprets (sic) the provision of S. 12 of Industrial Training Fund (I.T.F.) Act, Cap. 182, Laws of the Federation, 1990 to confer obligation onto the aggrieved employer of labour like the respondent/appellant to refer to Minister if any question of fact arises as to the liability of any employer to pay contribution under the Act?

2. Whether the trial Judge rightly or wrongly held that the suit was not statute-barred which was commenced outside the 6 years period allowed by section 10(1) of the I.T.F. Act, Cap. 182, Laws of the Federation, 1990.
3. Whether the trial Judge rightly or wrongly held that the respondent/appellant falls within the category of person to contribute to the fund being an employer of labour and pay wages or salaries to its employees.”

Learned counsel for the respondents, Rotimi Ogunjide, Esq. adopted the three (3) issues formulated by the appellant in its brief of argument for determination by this court.

In his submissions on issue No.1, the learned counsel for the appellant in reference to the interpretation of the provisions of S. 12 of the I.T.F. Act, Cap. 182, Laws of the Federation, 1990 submitted that the word “shall” used in the above provision connotes a mandatory compliance without the option of discretion on the party concerned, in this case the respondents/then plaintiffs, and referred to the case of Adamu Akun v. Mangu Local Government Council and I Or. C. A. (1996) 4 NWLR (Pt. 441) 207, (1996) 1 MAC p. 95 at pg. 96 ratio 7.

The learned counsel argued that the duty cannot be interpreted to confer duty on the appellant as defendant to refer the matter to the Minister. Further that it is not the duty of the court to supply or to add to any omission in the provision. The appellant contended that unless S. 12 of the I.T.F. Act, Cap. 182, Laws of the Federation, 1990 is complied with the court lacks competence to entertain and adjudicate on the matter, learned counsel cited and relied on the case of Hamza Lawal and 1 Or. v. Kafore Oke & 4 Ors (2000) FWLR pages 582 at 593 ratios 16, 18, 21 and 22; in which it was decided that there is much force of failure to comply with a condition precedent in instituting actions. The learned appellant’s counsel argued that a pre-action or condition precedent must be complied with, to warrant the plaintiff/respondent access to file the suit at the lower court. Further that, where the words used in a statute are clear and unambiguous the natural, ordinary and grammatical meaning shall be applied, unless it results in absurdity. The learned counsel cited and relied on Chief Obafemi Awolowo v. President Shehu Shagari (1979) 6 – 9 SC 51 at 96, (2001) FWLR (Pt. 73) 53 and Toriola v, Williams (1982) 7 SC 27. He contended that the words used in S. 12 of I.T.F. Act are not ambiguous, and that the natural, grammatical and ordinary meaning ought to have been adopted in interpreting it by the lower court.

It is the contention of the learned counsel for the respondent that in interpreting the provision in S.12 of the I.T.F. Act, that the time an employer is requested to register with and make contributions of 1% of its annual gross payroll to the I.T.F. for the purposes stated in S. 12 of the Act is the time the question of fact arises for the determination of the Minister, and that it is the employer who makes the reference of fact to the Minister. Reference was made to exhibit I.T.F., dated 31st August, 2000, served on the appellant on 21st September, 2000 asking the appellant to register and contribute to the fund.

The learned respondents’ counsel argued that if any employer feels he is not liable to register and contribute to the fund then he is enjoined by S. 12 to refer the matter to the Minister stating the reason why he should not be made liable, learned counsel urged this court to so hold. Further that, it cannot be the duty of the Fund who believes in the liability of an employer to contribute to it, and that an employer who feels he is not liable to contribute to the fund and wants the Minister to exonerate him from liability to refer the matter to him.

Learned counsel referred to the unreported case of the Federal High Court, The Governing Council of the industrial Training Fund and Anor. v. Federal Mortgage Finance Limited, suit No. FHC/ABJ/CS/52/2000. where that court held that if any employer believes he has a special case he should take up the case with the Minister.