Nigeria Social Insurance Trust V. Klifco Nigeria Limited (2010)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C

The plaintiff’s claim in the Port Harcourt Federal High court is for the sum of N38,453.13 (thirty eight thousand, four hundred and fifty three naira, thirteen kobo) later amended to N38,431.75k “representing arrears of contribution and interest which the defendant as employer of labour within the meaning of the National Provident Fund Act, 1961, failed and or neglected to pay despite repeated demands by the plaintiff.”

In the matter, pleadings have been filed and exchanged by the parties and evidence called on both sides. The trial Court in a considered judgment has entered judgment in favour of the plaintiff. The defendant being dissatisfied with the decision has appealed to the Port Harcourt Division of the Court of Appeal, which again after a considered judgment unanimously allowed the appeal. Aggrieved by the decision the plaintiff has now appealed to this court upon a Notice of Appeal as at pages 112 to 115 of the record containing two grounds of appeal from which the plaintiff has distilled two issues for determination. The defendant has adopted the said two issues. The plaintiff and defendant respectively are the appellant and respondent in this appeal.

The two issues for determination distilled by the plaintiff/appellant in this matter are as follows:

“(a) Whether the Court of Appeal was right in holding that Exhibit “L” was made by a party interested in the Proceedings.

(b) Whether the contents of Exhibit “J” could be taken as a specific denial of the appellant’s claim as held by the Court of Appeal.”

Reviewing the appellant’s case the major contention here is whether Exhibit “L” a Certificate of indebtedness received in evidence by the trial court has been rightly declared by the lower court as inadmissible in evidence, because, besides having been made during the pendency of the instant proceedings the person who has certified it has been a person interested in the instant proceedings. The appellant has challenged the above findings of the lower court as regards Exhibit “L”‘s inadmissibility by contending that upon having satisfied the conditions stipulated in Section 38 of the National Provident Fund Act Cap.273 of the Laws of the Federation of Nigeria 1990, (NPF Act 1990) in pari materia with Section 39 of NPF Act of 1961 and also not having been caught by section 91 (3) of the Evidence Act, the findings are perverse, that is to say, in holding that Exhibit “L” is inadmissible.

As regards the weight to be attached to Exhibit “L” the appellant has posited that it is the same as in the cases of Cominco Ltd. Vs. National Provident Fund Management Board as per Suit No.CA/B/32/87 as per the pronouncement of Ogundare J.C.A. (as he then was) therein and H.M.S. Ltd. Vs. First Bank (1991) NWLR (Pt.167) 290 at 312-313 paragraph C-D per Karibi-Whyte, JSC. The point has been made that notwithstanding these challenges the respondent has not all the same, disputed the debt and the amount contained in Exhibit “L” but that the claim is statute-barred.

On Issue 2- the question here is whether Exhibit “J” i.e. a letter of 2nd March 1989 written by the respondent to the appellant constituted a specific denial of the appellant’s claim; in other words, does it amount to an acknowledgement of the respondent’s indebtedness to the appellant The appellant answering the poser in the affirmative also has submitted that by the phrase “that our computation of our indebtedness…..” as contained in Exhibit “J”, the respondent has put it beyond dispute admitting the debt even though the figures contained in Exhibit “J” of the indebtedness may be different. The court is urged to hold that Exhibit “J” constitutes an acknowledgment of the respondent’s indebtedness to the appellant; in the result to allow the appeal and set aside the decision of the lower court and restore the decision of the trial court.

The respondent in his brief of argument has in connection with Section 91(3) of the Evidence Act raised two pertinent questions to wit:

“(a) Was the document Exhibit “L” made when this suit was Pending or anticipated.

(b) Was the Director i.e. certifying officer, in certifying same, a person interested at the time when proceedings were going on or anticipated question one relates to Exhibit “L” while question two relates to exhibit .J”.

In addressing these questions, the respondent has relied on the appellant’s assertion that Exhibit “L” has been certified during pendency of the instant suit to submit that the certifying officer i.e. the Director of the appellant company is a person interested in making Exhibit “L” even though it has been made in the course of his employment, as he has an interest to serve and has referred to EVON v. NOBLE (1949) 1 KB 222 at page 225.

And that Exhibit “L” is also caught by Section 91(3) (supra).