THE GOVERNING COUNCIL OF THE INDUSTRIAL TRAINING FUND & ANOR v. JOINT ADMISSIONS AND MATRICULATIONS BOARD
(2018)LCN/11823(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of July, 2018
CA/A/315/2009
RATIO
COURT AND PROCEDURE: SPECIFIC LEGISLATION
“Also it is trite that a specific legislation on a matter, overrides the general legislation on the same matter. This is because the intention of the legislature must be construed and given effect. The intention of the legislature in enacting specific provisions, is to be categorical and to remove the specific provision and give it effect over and above general provision. See C.A.C. Vs Gov. Council, ITF (2015) 1 NWLR (Pt.1439) 114 at 123.” PER TANI YUSUF HASSAN, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
1. THE GOVERNING COUNCIL OF THE INDUSTRIAL TRAINING FUND
2. THE DIRECTOR GENERAL OF THE INDUSTRIAL TRAINING FUND Appellant(s)
AND
JOINT ADMISSIONS AND
MATRICULATIONS BOARD Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment):
The appellants commenced an action as plaintiffs at the Lower Court in Suit No. FHC/ABJ/CS/13/07 by an Originating Summons dated and filed on the 22nd day of January, 2007 before Hon. Justice G. O. Kolawole, seeking the determination of the following questions against the respondent as defendant therein:
1. Whether by virtue of Section 6(1) of Decree 47 of 1971 as amended by the Industrial Training Fund Act, Laws of the Federation 1990 that the Defendant is statutorily mandated to register with the plaintiffs and contribute to the fund.
2. Whether by virtue of Section 14 of Decree 47 of 1971 as amended up to date that the Defendant falls within the category of employers that are liable to contribute to the plaintiffs.
3. If the answers to questions 1 and 2 are in the affirmative, then plaintiffs therefore seek for the following reliefs:
a. A declaration that the Defendant is within the contemplation of Decree 47 of 1971 as amended up to date.
b. A declaration that the Defendant has defaulted in complying with the plaintiffs’ enabling statutes by not contributing 1% of its annual gross pay-roll to the plaintiffs and which has accumulated to N100,000,000.00k (one hundred million naira) only covering 2001 – 2006 levy years.
c. An order directing the Defendant to pay a sum equal to 5% monthly statutory penalty on the judgment sum from 2001 until the judgment sum is finally liquidated.
d. An order directing the Defendant to comply with the plaintiffs enabling Decree No. 47 of 1971 as amended up to date by rendering returns of training and account of contribution (if any) between 2001 – 2006.
The Originating Summons is supported by eighteen paragraph affidavit and Exhibits ‘1TF1 and 1TF2′.
In response to the originating summons, the Defendant/Respondent filed a Notice of preliminary Objection on 7th May, 2007 and a counter affidavit dated and filed on the 18th of May, 2007.
After hearing the parties, the learned trial judge considered the Preliminary Objection and Originating Summons together. The preliminary objection succeeds and the Suit commenced by Originating Summons was dismissed. Aggrieved with the judgment of the Lower Court, the appellant appealed to this Court.
The Notice of Appeal filed on the 4th of May, 2017 was deemed properly filed on 17th January, 2018. There are four grounds of appeal with their particulars and reliefs sought.
The grounds of appeal shorn of their particulars are:
GROUND ONE
The learned trial Court erred in law when after admitting that the Respondent falls within the provision of Section 6(1) the Industrial Training Fund Act as regarding the numbers of employees in its employment but proceeded to erroneously hold that:
“It is not enough for an employer to have more than 25 employees in its employment via Section 6(1) of the ITF Act. The only issue is whether the ’employer’ as defined by Section 16 of the ITF Act is such that the Defendant is engaged in commerce and Industry”.
GROUND TWO
The learned trial Court erred in law when it held that:
”The plaintiffs’ action has become statute barred not having been commenced within three (3) months as provided by the Public Officers Protection Act”‘.
GROUND THREE
The learned trial Court erred in law by misconstruing and misinterpreting the provision of Section 15 of the ITF Act 2004 with regards to the issue of “Best Judgment” by holding thus:
“What are the information or data used by the plaintiffs as the basis for their “Best Judgment” did the plaintiffs know the staff strength of the defendant and as to their wage portfolios”.
GROUND FOUR
“The learned trial Court erred in law when he entered judgment in favour of the Respondent despite the plaintiffs’ uncontroverted evidence.”
The appellants’ brief dated the 2nd of May, 2017 was filed on 18th May, 2017 and deemed properly filed on 17th January, 2018.
The brief settled by Sayo Odumosu Esq has three issues distilled for determination as follows:
1. “Whether having regards to the circumstances of the case, the General provisions of Section 2 of the Public Officers’ Protection Act Cap 41 LFN 2004 may be applied at the expense of the special provision of Section 11 of the Industrial Training Fund Act to determine when the plaintiffs/Appellants’ action becomes statute barred”.
2. “Whether the learned trial Judge was right in holding that the Defendant/Respondent is not engaged in commerce and Industry”.
3. “Whether the trial judge was right to have entered judgment in favour of the Respondent despite absence of specific denial of averments of the plaintiffs”.
The Respondent’s brief settled by Ibrahim Angulu Esq was dated 8th June, 2017 and filed on 9th June, 2017 but deemed properly filed on the 17th of January 2018. In it two issues were identified as follows:
1. “Whether the Suit filed in the Lower Court is statute barred”.
2. “Whether the honourable trial Judge was right in holding that the respondent is not engaged in commerce and industry and thereby not in contemplation of the Industrial Fund Act”.
The appellant’s reply brief was dated and filed on 22nd September 2017 and deemed properly filed on 17th January, 2018.
The Respondent’s Notice to contend was filed on 13/2/2019 and deemed filed on 30/4/2018. The appellants’ issues one and two and the respondents two issues are similar. I shall therefore be guided by the appellants’ issues.
ISSUE ONE
“Whether having regards, to the circumstance of the case, the General provisions of Section 2 of the Public Officers Protection Act Cap 41 LFN 2004 may be applied at the expense of the special provision of Section 11 of the Industrial Training Fund Act to determine when the plaintiffs/Appellants’ action becomes statute barred.”
Arguing, the appellants referred to the reliefs claimed by the appellant in the originating summons filed on 22nd of January, 2007 to determine if the action is statute barred. Referring also to the provisions of Section 2 of the Public Officers Act and Section 11(1) of the Industrial Training Fund Act, it is submitted that it is trite in the interpretation of statute, a specific provision prevails over a general provision.
Relying on the cases of Osahon Vs Federal Republic of Nigeria (2003) 16 NWLR (Pt.845) 89 at 125 and 127; Federal Mortgage Bank of Nigeria Vs P. N. Olloh (2002) 9 NWLR (part 773) 475; Schroeder & Co. Vs Major Co. Ltd (1989) 2 NWLR (part 101) 21 and Bamgboye Vs Administrator – General (1954) 14 WACA, it is submitted that while the Public Officers Protection Act makes a general provision as to limitation of time for action against public officers, Section 11 of the ITF Act is for six years time limit to apply where the subject matter of the action is a default of contribution to the appellants and thereby creates an exception to the general rule under Section 2 of Public Officers? Protection Act.
Learned counsel for the appellant contended that the intention of the legislature is to ensure that all actions brought by the appellants are subject to the provisions of its enabling Act so as to achieve the purpose for which the Act was enacted.
That it is not allowed to adopt a construction that will result in the defeat of the purpose of the legislation, but to interpret it to save rather than destroy its real purpose. He relied on Savanah Bank Nig. Ltd Vs Ajilo (2001) 1 FWLR (part 75) 513 at 525 and Nafiu Rabiu Vs Kano State (1980) 8 – 11 SC 130 on this submission.
He went further to submit that the ITF Act applies only to specific categories of employers of labour having at least 25 or more employees in their employment and engages in commerce or industry. Relying on the case of Bamgboye Vs Administrator General (supra), it is submitted that the ITF Act is intended to take care of ITF special cases. That the applicable law and which is specific to this action is the appellants’ enabling Act (Industrial Fund Act 2004) as amended and not Public Officers Protection Act as postulated by the respondent. Also that the applicable law to determine whether or not this action is statute barred is Section 11(1) of the Industrial Training Fund Act.
Learned counsel for the appellant argued that the Industrial Training Fund Act is meant for the development of the Nation’s indigenous manpower, which is very vital to the development of the Nation. He cited Section 2 of the ITF Act 2004. He said the Act makes it mandatory for employers with 25 employees and above and who are engaged in commerce and Industry to pay 1% of their annual pay roll to the Fund created by the Act pursuant to Section 6 of ITF Act, 2004 which contributions shall be used to finance the manpower development of the Nation. That if Section 2(a) of the Public Officers Protection Act is to apply in this matter, the purpose of ITF will be defeated as it will not be possible to compel a liable employer to register with the Fund and no contribution will be recoverable from any employers of labour that are in public sector or public institutions.
Learned counsel for the appellant contended that, contrary to the submission of the respondent that by the appellant’s letter of demand of 11th August, 2006 their cause of action arose on the 11th August, 2006, it is submitted that by Section 11 of ITF Act, the appellants are given six years limitation to claim for its debt from the respondent.
The Court was referred to Sections 6(2) and 11 of the Industrial Training Fund Act, that from the two sections, the annual contributions are made payable in arrears and not in advance. In considering Section 10 of the Industrial Training Fund Act, it is submitted that the limitation period for the contribution due for the year 2001 will start to run from April, 2002, the month of April being the contribution year calendar. That the appellants’ action would still not be statute barred even if the Public Officers Protection Law is to be applied.
It is finally submitted on this issue that the limitation time starts to run at the time an employer must have registered with the Fund and the action of the appellants at the Lower Court was to compel the respondent to register with the appellants and pay contribution of its arrears as mandated by Section 13(1) of the Industrial Training Fund Act 2004.We are urged to resolve in favour of the appellants.
Responding, learned counsel for the respondent submitted that the appellants’ counsel had a misconception of the law when he argued that Section 11 of the Industrial Training Fund Act is the applicable law in this case as against Section 2(a) of the Public Officers Protection Act. He contended that Section 11 of the ITF Act allows for recovery of contribution for up to six years in arrears. That where ITF sues a public officer like the respondent, the six years arrears allowed by the ITF to recover is subject to Section 2(a) of the Public Officers Protection Act.
Relying on the case of ITF Vs N.R.C. (2007) 3 NWLR (part 1020) at 6, it is submitted that Section 11 of the ITF is subject to Public Officers Protection Act which provides limitation period of three months from the time the cause of action arose.
Referring to Exhibit ”I.T.F 1″ a letter of demand dated 10th July, 2006 for payment of contribution to the fund, and exhibit “ITF 2” dated 11th August, 2006, the reply by the respondent denying liability, it is submitted that the cause of action arose from the date of the letter of demand by the appellants to the respondent on 10th July, 2006. That from the claim of the appellants particularly paragraphs 11, 12 and 15 the cause of action arose six years ago. He referred to the case of Idachaba Vs llona (2007) 6 NWLR (part 1030) 277 for definition of cause of action.
That the appellants’ action filed on the 22nd of January, 2007 is statute barred which deprived the Court of jurisdiction to hear the matter. The Court is urged to resolve in favour of the respondent
The appellants in paragraph 10 of their affidavit in support of the originating summons deposed that on several occasions they informed the respondent of its statutory obligation to comply with the appellants’ enabling Decree. They had to ask their solicitors to write a letter to the respondent on the 10th of July, 2006 to comply with the enabling laws Exhibit “ITF 1”. The respondent in response vide its letter dated 11th August, 2006 repudiated liability to register with and contribute to the appellants fund – Exhibit “ITF 2′, By paragraph 15 of the said affidavit the respondent is said to have been in default for about six years and the estimated contribution has risen to the sum of N100,000,000.00 (one hundred million naira) excluding the 5% monthly, statutory penalty covering 2001 – 2006.
The Originating Summons was filed on the 22nd of January, 2007. At this stage it is necessary to reproduce the provisions of Sections 6(1), (2) and 11 of the Industrial Training Fund Act.
Section 6(1) provides:
“Every employer having twenty five or more employees in his establishment, shall in respect of each calendar year and or prescribed date, contribute to the Fund one per centum of the amount of his annual payroll?.
6(2) (b) “In respect of every subsequent year, means a date not later than 1st April of the following year”.
Section 11 (1) reads
“Notwithstanding any other provisions of this Act, a contribution to the Fund shall be recoverable by action as a debt owing to the Fund at any time within six years from the date when the contribution became due.”
By the provision of Section 6(2)(b) of the ITF Act, it is clear that the limitation period for the contribution due for the year 2001 would be from April, 2002. So the 1st of April, 2002 would be the due date the cause of action arose in respect of the claims of the appellants before the Lower Court.
Since the limitation period is within six years by the provision of Section 11(1) of ITF Act, it follows that 30th of April, 2008 would be the date the cause of action would lapse, in which case it would no longer be enforced.
The action in this case was commenced on the 22nd day of January, 2007, which was within the period and it was not therefore caught by the Limitation Act. The Lower Court therefore possessed the requisite jurisdiction to entertain it.
Contrary to the submission of the respondent, Section 2(a) of the Public Officers Protection Act is inapplicable in this case. The provisions of Section 11(1) of the ITF Act is very clear on the limitation period which is six years. The general rule governing the interpretation of statutes is that where the language of the statute is clear and unambiguous, the Court should give the words their literal meaning. See Okechukwu Vs EFCC (2015) 18 NWLR (part 1490) 1 at 7; Egbe Vs Alhaji (1990) 1 NWLR (part 128) 546; Utomudo Vs Mil. Gov. Bendel State (2014) 11 NWLR (part 1417) 97 at 102 and Corporate Ideal Ins. Ltd Vs Ajaokuta Steet Co. Ltd (2014) 7 NWLR (part 1405) 165.
Also it is trite that a specific legislation on a matter, overrides the general legislation on the same matter. This is because the intention of the legislature must be construed and given effect. The intention of the legislature in enacting specific provisions, is to be categorical and to remove the specific provision and give it effect over and above general provision. See C.A.C. Vs Gov. Council, ITF (2015) 1 NWLR (Pt.1439) 114 at 123.
In the instant case, Section 11(1) of the Industrial Training Fund Act is a specific provision relating to limitation period for recovery of contribution due from employers to the fund. While the Public officers protection Act is a general legislation prescribing the limitation period within which action can be commenced against public officers. In the circumstance it is Section 11(1) of the Industrial Training Fund Act that governs the limitation period for the appellants, action and I so hold.
Issue one is resolved in favour of the appellants and against the respondent.
ISSUE TWO
“Whether the learned trial judge was right in holding that the Defendant/Respondent is not engaged in Commerce and Industry”.
The contention of the appellants on this issue is that the respondent is a corporate Institution established under the Joint Admission and Matriculation Board Act Cap 1 LFN 2004 with its functions under Section 5 of the Act. That by the provision of Section 5 which does not specifically make mention of the word commerce or Industry, Section 5(1) (e) provides for the respondent to carry out any such other activities that are necessary or expedient for the full discharge of all or any of the functions conferred on it under the Act.
It is submitted that the respondent pursuant to Section 5(1)(e) of the Act carries out other activities like selling of forms, scratch cards for internet access, brochures and other articles to her candidates which amount to commerce or industry. That through these transactions the respondent makes profits which forms substantial part of its funds under Section 10(b) of JAMB Act and which it may put into use for its livelihood provided under Section 11 of the Act.
Learned counsel of the appellant referred to page 269 of Black Law’s Dictionary 6th Edition on the definition of Commerce and Industry and submitted that the respondent makes bulk purchase of papers and other stationeries, set questions on them and sell them to candidates for her examinations. Also that the respondent sells internet scratch cards to candidates for use in checking their results and to which the respondent must be held to be engaged in commerce.
Learned counsel for the appellant went further to submit that education is an industry which comprises of all persons, organizations and agencies involved in the business of providing educational services. That if the activities carried out in pursuant of Section 5 amount to commerce, the fact that the word “commerce” or Industry” is not mentioned in the Act is of no moment.
It is argued for the appellant that the trial Court did not exercise its discretion judiciously when it refused to take judicial notice of the fact that the respondent sells its examination forms and other articles for a fee which facts are deposed in paragraph 9 of the affidavit in support of the originating summons but not considered by the Court. That failure of the Court to consider paragraph 9 of the said affidavit has occasioned a miscarriage of justice to the appellants.
The Court is urged to resolve in favour of the appellants.
From its part, the respondent said the trial Court was right that the respondent is not engaged in commerce and Industry and therefore it is not in contemplation of the Industrial Training Fund Act. Referring to the JAMB Act Cap J1 1994, it is submitted that the respondent was not established for commence and Industry, but it is a statutory body established to conduct matriculation examination for students to tertiary Institutions. The Court was referred to the explanatory note of the JAMB Act 1994, the purpose for which the Act was set up, to administer a centralized admissions system for Universities, polytechnics and Colleges of Education and perform certain statutory duties but not as a trading or industrial concern.
Referring to Section 5(1) (2) of the JAMB Act, 1994, it is submitted that there is nothing therein to show that it is established for Commerce and/or Industry. That the JAMB was established for public service and not for Commerce and Industry. He referred to C.B.N. Vs Ukpong (2006) 13 NWLR (part 998) 571 and urged the Court to hold that the purpose for establishment of the respondent regardless of the sell of forms is for public service.
Relying on the case of Ugwu Vs Ararume (2007) 12 NWLR (pat 1048) 497, learned counsel for the respondent said a cardinal rule of construction of statutes and other documents is that they must not be implied with that which is inconsistent with the words expressly used. In contending that commerce was defined as carrying of trade which connotes to carrying on buying and selling for the principal aim of making profit, it cannot be said from the function of JAMB as stated in Section 5 of the Act, that the respondent is engaged in commerce.
The Court is finally urged to hold that the respondent is not within the contemplation of the Industrial Training Fund Act, an “employer” and therefore not liable to make contributions as deposed in paragraphs 5 and 6 of the respondent’s counter affidavit.
The submission of the appellants’ counsel on this issue is that the respondent is engaged in Commerce and Industry to the extent that it sells forms to candidates for her examinations, internet scratch cards for use in checking their results and other articles like brochures. That the respondent is liable to contribute to the Industrial Training Fund because it is engaged in Industry. Learned counsel for the respondent on the other hand argued that by the provision of Section 5(1) of the JAMB Act, there is nothing therein to show that the respondent was established for Commerce or Industry. That the respondent does not fall within the contemplation of Industrial Training Fund Act to be entitled to make contribution as it is established only for public services.
In determining this issue it is important to consider the statutory duties and functions of the respondent to see whether it is required to contribute to the Industrial Training Fund. The Industrial Training Fund was established by Section 1 of the Industrial Training Fund Act, Cap 19 Laws of Nigeria, 2004 which provides:
“There is hereby established a fund to be known as the Industrial Training Fund (in this Act referred to as “the Fund?) into which shall be paid:
a) All contributions prescribed by this Act.
b) Such sums as may be provided for that purpose by the Federal Government; and
c) Funds provided by the Federal Government for the students Industrial Work Experience Scheme.
Provided that such fund shall be channeled through the Federal Ministry of Industry.” By virtue of Section 6 of the Industrial Training Fund Act, every employer having twenty five or more employees in his establishment, shall in respect of each calendar year and or the prescribed date, contribute to the fund one per centum of the amount of his annual payroll. The prescribed dates are: a) In respect of the year, one thousand nine hundred and seventy – one, a date not later than three months from the commencement of the Act; and b) In respect of every subsequent year, a date not later than 1st April of the following year. On the other hand, the respondent, the Joint Admissions and Matriculation Board Act was established to administer a centralized admissions system for universities, polytechnics and Colleges of Education. Section 1 of the Act provides: “There is hereby established a body known as the Joint Admission and Matriculation Board (in this Act referred to as “the Board”.)
Section 5 of the Act provides for the functions of the Board as follows:
5(1) “Notwithstanding the provisions of any other enactment, the Board shall be responsible for:
(a) The general control of the conduct of matriculation examinations for admissions into all Universities, Polytechnics (by whatever name called) and Colleges of Education (by whatever name called) in Nigeria.
(b) The appointment of examiners, moderators, invigilators, members of subject panels and committees and other persons with respect to matriculations and any other matter incidental thereto or connected therewith,
(c) The placement of suitably qualified candidates in collaboration with the tertiary institutions after taking into account
(i) The vacancies available in such tertiary institution.
(ii) The guidelines approved for each tertiary institution by its proprietor or other competent authority.
(iii) The preferences expressed or otherwise indicated by candidates for certain tertiary institutions and Courses; and
(iv) such other matters as the Board may be directed by the Minister to consider, or the Board itself may consider appropriate in the circumstances:
(d) The collection and dissemination of information on all matters relating to admissions into tertiary institutions or any other matter relevant to the discharge of the functions of the Board under the Act; and
(e) The carrying out of such other activities as are necessary or expedient of the full discharge of all or any of the functions conferred on it under or pursuant to this Act.
To qualify as an employer under Sections 6(1) and 16 of the ITF Act, the respondent must be engaged in industry or commerce. The respondent must have twenty five or more employees and the employees are paid wages and remuneration by the appellant.
A calm examination of the functions of the respondent would show that there is nothing to suggest that the respondent is engaged in any commerce or Industry. The primary responsibility of the respondent under Section 5(2) of the JAMB Act is for determining matriculation requirements and conducting examinations leading to under graduate admissions and also for admissions to National Diploma and Nigerian certificate in Education courses. As such the statutory mandate of the Board has nothing to do with industry.
From the functions of the respondent stated above and by the definition of the word “Industry” to mean occupation, business, manufacture of goods in Industries as a means of livelihood for profit, the respondent does not buy or sell articles for profit. It provides public services and does not exchange goods and services as in commerce. The respondent has no statutory function to commerce or industry. The forms they sell, the fee they charge for examinations, the scratch cards and brochures they sell are not for profit but for services rendered to the public. Also even if they employ more than 25 people, it does not mean that they are engaged in Commerce and Industry to be liable to contribute to the Industrial Training Fund.
The appellants did not depose to the facts in their affidavit in support of their originating summons that the spelt out functions of the respondent was with the aim of making profit and that indeed it made such profit. The respondent in paragraph 6 of its counter affidavit to the originating summons deposed that the functions of the respondent is to conduct Matriculation Examinations and the placement of students in the Universities which fact was also deposed by the appellants in paragraph 9 of the affidavit in support of the originating summons. This deposition remains a fact not in dispute between the parties and it is supported by Section 5(1) of the JAMB Act.
It is therefore my view that the respondent is not an employer within the provision of Section 6(1) of the ITF Act, to warrant it, to make a contribution to the Industrial Training Fund.
Issue two is resolved in favour of the respondent against the appellants.
ISSUE THREE
“Whether the trial judge was right to have entered judgment in favour of the respondent despite the absent of specific denial of averments of the plaintiffs”.
The appellants submission on this issue is that the respondent’s counter affidavit did not make any specific denial of the appellants affidavit in support of the originating summons. Relying on the cases of Lewis & Peat (N.R.I.) Ltd Vs Akhimien (1976) 6 SC 159 and Ugwuanyi vs Nicon Insurance Plc (2005) All FWLR (part 259) 2030 at 2038, it is submitted that the respondent’s affidavit does not amount to specific denial and the Court is urged to so hold and allow the appeal.
The respondent on the other hand, submitted that its counter affidavit controverted the affidavit of the appellant by paragraphs 4 and 10 when it challenged the competence of the appellants suit on jurisdiction, and paragraphs 4 and 5 of the counter affidavit where the respondent denied being within the contemplation of the Industrial Training Fund. That the trial Court took into consideration the depositions before it to arrive at its judgment.
Courts are duty bound to consider all facts placed before it. In the instant case the lower Court considered the affidavit and the counter affidavit filed in respect of the originating summons to arrive at a conclusion in dismissing the appellants’ case as reflected at page 75 of the record.
The respondent in paragraph 8 of its counter affidavit deposed thus: “The defendant is not a profit making organization”.
The appellants did not file a Further and Better Affidavit in response to this fact deposed in the counter affidavit which makes the fact deposed in the counter affidavit remain unchallenged and uncontroverted being the threshold issue in this case.
Issue three is also resolved in favour of the respondent against the appellants.
Notwithstanding that issues 2 and 3 are resolved in favour of the respondent, the appeal is allowed in part, issue 1, having been resolved in favour of the appellants. The appeal is allowed only in respect of limitation Act. That aspect is hereby set aside. Subject to this, the appeal lack merit and is dismissed on other issues.
The respondent’s Notice to contend was dated and filed on 13th February, 2078 and deemed properly filed on the 30th of April, 2018. The Respondent’s brief on Respondent?s Notice incorporated in the respondent’s main brief was adopted on the 30th of April, 2018.
The appellants’ response to the Respondent?s Notice contained in the appellants reply brief was also adopted on same 30th April, 2018.
The sole issue arising for determination in respect of the Respondent’s Notice reads:
“Whether the action filed by the appellant in the Lower Court is competent having regards to the fact that the appellant had not complied with a condition precedent to commencing the Suit?.
”There is a ground upon which the Notice was brought. The relief sought is for ?An order of Court affirming the judgment of the Lower Court on the ground that the Suit as constituted was incompetent for not complying with conditions precedent to commencing the action as contained in Section 12 of the ITF Act”.
In arguing the issue, learned counsel for the respondent referred to Section 12 of the Industrial Training Fund Act which requires that in case of dispute, the dispute should be referred to the Minister Charged with the responsibility for Industry by virtue of paragraphs 11 and 12 of the appellants claim in the lower Court and Exhibits ”ITF 1 and ITF 2″ at pages 6 – 12 of the record. That the dispute should be referred to the Minister for determination and it is when the Minster has determined and the respondent still refuses to pay the appellant that the appellant can resort to Court.
He relied on the case of National Inland Waterway Authority Vs Governing Council of I.T.F. (2008) 7 NWLR (part 1086) 109 at 121 and submitted that the proceedings having begun other than as provided by the Act, such proceedings is incompetent and the Court is urged to affirm the judgment of the Lower Court on this ground also.
The appellants in response to the Respondent’s Notice also formulated a sole issue for determination as follows:
“Whether the Minister’s determination of a question of fact as to the liability of an employer to pay contribution to the Act is a condition precedent without which any suit cannot be commenced against liable employer?.
The appellant’s counsel submitted that Section 12 of the ITF Act did not make Minister’s determination as a pre-condition for the commencement of action against any liable employer as same cannot be imported into the Act and we are urged to so hold.
He referred to Sobamowo Vs Elemuren (2008) LPELR -5166 (CA); Ayeni Vs University of Ilorin (2000) 2 NWLR (part 644) 290 and Ekunola Vs CBN (2006) 14 NWLR (part 1000) 292 among others, and submitted that the intention of the legislature should be the paramount thing in the mind of the Court in construing a statute to avoid the purpose of the said Act being defeated. That Section 12 of ITF Act cannot be interpreted to mean a pre-action notice requesting the Ministers determination of a question of fact as to liability to pay contribution to the Fund.<br< p=””
The basis of the Respondent’s Notice to contend is predicated on the issue of jurisdiction, which this Court determined in favour of the appellants. The Notice has therefore been taken over by event and it is struck out.
Parties to bear their costs.
ABDU ABOKI, J.C.A.: I have had the opportunity of reading before now the lead judgment just delivered by my learned brother TANI YUSUF HASSAN, JCA.
I agree with the reasoning and conclusion contained therein, that the appeal is allowed in part on issue one, but lacks merit and dismissed on issues two and three.
The Respondent’s Notice is also struck out by me.
I also abide by the consequential order(s) as contained in the lead judgment.
MOHAMMED MUSTAPHA, J.C.A.: I read a draft copy of the judgment delivered by my learned brother, Tani Yusuf Hassan, JCA.
I agree with the reasoning and conclusion therein. I also allow the appeal in part and abide by the order for costs made in the lead judgment.
Appearances:
Sayo Odumosu with him, Gambo Mathias and Adejoke Osuntogun For Appellant(s)
Ibrahim Angulu with him, Eke DavidsonFor Respondent(s)
