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?
- 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.
- 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.
Learned respondents’ counsel argued that the appellant waived his right under S. 12 of the I.T.F. Act, by not referring the matter to the Minister, and cannot be heard to complain of not being permitted to exercise his right and cited and relied on the case of Fasade v. Babalola (2003) 11 NWLR (Pt. 830) 26, (2003) FWLR (Pt. 161) 1707 at p. 1722 – 1723. He argued that S. 12 of the I.T.F. Act is not a condition precedent to the institution or commencement of an action by the respondents against any employer of labour. He argued that the appellant did not show that there was any question of fact that needed to be determined by the Minister, in the lower court or before this court and that the decision of the Minister is final, by the word “shall” used in S. 12. That the reference should be from the employer who is aggrieved. Finally, on this issue that the decision of the Minister being final on any fact referred to it cannot be interfered with by any court once the Minister has taken a decision.
To resolve the first issue S.12 of the I.T.F. Act has to be closely examined and, interpreting same before determining whether it was properly interpreted by the lower court or not S. 12 of the I.T.F. Act provides:-
“S. 12 If any question of fact arises as to the liability of an employer to pay contributions under this Act, the question shall be determined by the Minister whose decision shall be final.”
It is trite that where a statute uses the word “shall” in a provision it connotes a mandatory compliance and there is no discretion or loose interpretation to accommodate any party. The objective of any interpretation is to discover the intention of the law maker which can be deduced from the language used. The duty of the court is to interpret and to give adequate and as close as possible accurate and ordinary meaning to the words used. Once the words used are straightforward and unambiguous the court will give a literal interpretation to them. In other words, the meaning of legislation must be collected from the plain and unambiguous expressions used in the provision rather than from any notions which may be entertained as to what is just and expedient. In the interpretation of statutes which encroach on the rights of the subject, whether tangible or intangible, whether as regards person or property, they are construed strictly in favour of the subject particularly any statute which imposes a disability ought to be interpreted strictly.
The courts are mindful of their position as courts of law and will not in the course of interpretation venture into re-rewriting the law as a result of which the intention of the law maker is thrown overboard or lost. See: Adejumo v. Governor, Lagos State (1972) 3 SC page 45, Awuse v. Odili (2003) 14 NWLR (Pt. 841) page 446, Awolowo v. Shagari (1979) 6-9 SC 51, Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) page 116, Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) page 622, Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) page 241, Okotie-Eboh v. Manager (2004) 18 NWLR (Pt. 905) page 242 and Alegbe v. Oloyo (1983) 2 SCNLR 35. From the clear provision of S. 12 of the I.T.F. Act literally means that where the question of fact arises to the liability of an employer, in this case the liability or otherwise of the appellant (then defendant) to pay contributions under the Act, the question shall be determined by the Minister i.e. the question as to the employer’s liability or otherwise. The Minister’s decision as to such liability would be final. It is clear that the section cannot be interpreted to confer duty on the appellant/defendant to refer the matter to the Minister as rightly argued by the learned appellant’s counsel, with whom I am in agreement.
The court cannot supply or add to any omission in the provision, as a court cannot legislate but whose duty it is to interpret. The court cannot import into a statute what is not there or intended. See Olowu v. Abalare (1993) 5 NWLR (Pt. 293) 255; (1993) SCNJ (Pt. 1) page I and Imah v. Okagbe (1993) 9 NWLR (Pt. 316) 159: (1993) 12 SCNJ 54 at 71.With a literal interpretation of S. 12 of the I.T.F. Act, the duty cannot be on the defendant as an employer to make the reference to the Minister as to his liability to pay contributions under the Act; doing so would be like a suspect without a charge, trying to prove his innocence! It cannot be said therefore that the appellant waived his right to complain not having referred his liability or otherwise to the Minister as argued by the learned respondents’ counsel.
On the other hand, S. 12 of the I.T.F. Act is a condition precedent to the institution or commencement of an action by the respondents herein against any employer of labour, contrary to the argument of the learned respondents’ counsel. It is the duty of the respondents to refer any of fact that arises as to the liability of an employer to pay contributions under the Act, which the liability or otherwise would be determined by the Minister.
In the present case, there is nothing from the printed records to show that the respondents complied with section 12 of the I.T.F. Act as to confer jurisdiction on the court to adjudicate on the matter.
In the case of Hamza Lawal & 1 Or. (supra) also cited by the learned appellant’s counsel it was stressed by Onalaja, JCA (as he then was) that there is much force of failure of a condition precedent by the respondents before the commencement of the action, that requires a specific representation in that case to the Commissioner before commencement of an action, which must be complied with before an action could be taken, failure of which ousts the jurisdiction of the court. The provisions of S. 12 of I.T.F. Act is similar to pre-action or condition precedent, which must be complied with to warrant the respondent access or room to have filed the suit as plaintiffs in the lower court. The first issue is centered on noncompliance with S. 12 of the I.T.F. Act which is clear and unambiguous; therefore it must be given its ordinary and grammatical meaning, unless it results in absurdity, which is not the case here. See Awolowo v. Shagari (supra).
Before a court can exercise jurisdiction in respect of any matter, it must:-
(i) Be properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other.
(ii) The subject matter of the case is within the jurisdiction of the court and there is no feature in the case which prevents the court from exercising its jurisdiction, and
(iii) The case comes by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu v. Nkemdilim (1962).2 SCNLR page 341.
It is the law that any statute that seeks to ouster the jurisdiction of the court or restrict the right of access to court must be strictly construed. See Bello v. Diocesan Synod of Lagos & others (1973) 1 All NLR (Pt. I) at 247, Peenock Investment Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR page 122, Din v. A.-G. of the Federation (1988) 4 NWLR (Pt. 87) at 147, Dasuki v. Muazu (2002) 16 NWLR (Pt.793) page 319 at 340.
In the present case, the interpretation of S. 12 of the I.T.F. Act, by the lower court shifted the duty to make the reference to the Minister, to the employer who was the defendant in the lower court.
With great respect, I think this is a wrong interpretation of the section, and not the intendment of the legislators that an employer who would be the defendant should refer to the Minister any question of fact as to his liability after which the Minister would take a decision. Thereafter the respondents as plaintiffs would then take out an action, in other words, the employer as prospective defendant would initiate the process or satisfy the pre-condition or condition precedent to an action before the respondents as plaintiffs could institute an action against him! This surely cannot be the proper interpretation or intendment of S.12.
In the instant case, a condition has been incorporated into the Act before an action could be taken against a defaulting employer that fails to contribute to the fund. It is clear that an alleged defaulting employer should not be brought to court unless and until the fulfillment of the condition as contained and provided in S.12, Being a condition precedent to the exercise of jurisdiction, any failure to comply with such condition deprives the court of its jurisdiction, Where any proceedings are begun other than as provided by the rules such proceedings are incompetent. The trial court was therefore wrong to have entertained the matter where it lacked jurisdiction to do so. See: A.-G., Anambra State v. A.-G., Federation (1993) 6 NWLR (Pt. 302) page 692, Madukolu v. Nkemdilim (supra), Barclays Bank v. C.B.N. (1976) 1 All NLR (Pt. I) page 400, A-G., Lagos State v. Dosunmu (1989) 3 NWLR (Pt. III) page 552, Bronik Motors Ltd. v. Wema Bank Ltd. (1983) I SCNLR 296, Saleh v. Monguno (2003) 1 NWLR (Pt. 80 I) page 221.
I have looked through the printed records and there is nothing to show that the respondents as plaintiffs referred the question as to facts of the liability of the appellant to contribute to the fund, to the Minister. There was no such compliance before the respondents as the plaintiffs instituted the action in the lower court.
In resolving the first issue, I hold that it was wrong for the lower court to have proceeded to hear and determine the matter, without compliance with S. 12 of the I.T.F. Act.
Even though learned counsel for both parties proffered arguments in respect of the second and third issues, reviewing these would be a waste of time, since all said and done having held that the lower court had no jurisdiction to proceed with the hearing of the matter, S. 12 of the I.T.F. Act not having been complied with, the same holds for the second and third issues which were for determination by this court.
In the final analysis, I hold that the proceedings in the lower court amount to a nullity as a result of non-compliance with a condition precedent. I hereby allow the appeal. Accordingly, the decision of the learned trial Judge, of 27th June, 2005 is hereby set aside.
I make no order as to costs.
Other Citations: (2007)LCN/2502(CA)
