IN THE NATIONAL INDUSTRIAL COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE MUSTAPHA TIJJANI
WEDNESDAY OCTOBER 31st, 2018
SUIT NO: NICN/LA/529/2017
NATIONAL UNION OF CHEMICAL FOOTWEAR
RUBBER LEATHER AND NON-METALLIC PRODUCTS – CLAIMANT AND
CHEMICAL AND NON-METALLIC PRODUCTS
EMPLOYERS FEDERATION- DEFENDANT
REPRESENTATION
Dare Akande Esq. for the Claimant
Opeyemi Bello Esq. for the Defendant
JUDGMENT
The Claimant had commenced this suit against the Defendant vide General Form of Complaint and the accompanying originating processes on the 31st day of October 2017 seeking for the following relief:
An order restraining the Defendant and any of its affiliate members from deducting or further deducting the National Housing Fund from the salaries of members of the Claimant until the Claimant and other stakeholders thrash out how the houses will be delivered and the benefits to the Claimant’s members.
Upon being served with the Claimant’s originating processes, the Defendant entered appearance and filed its defence processes on January 29th2018.
Trial in the case started on the 21st of May 2018 with each party calling one witness. The Claimant testified through Comrade Joseph O. Dada, who adopted his written statement on oath as his evidence in chief and tendered four documents which were admitted and marked as Exhibits C1 to C4. The Defendant testified through Mr. Olorunfemi Oke who adopted his statement on oath as his evidence in chief. The Defendant’s witness did not tender any document.
THE CASE OF THE CLAIMANT
The Claimant’s case is that sometimes ago, the National Housing Fund Act was enacted which directed employers of Labour throughout the country in both public and private sectors to deduct 2.5% of the monthly salary of each of their employers as contributions to the fund which is to build houses for workers in all the States of the Federation. That the organized private sector raised some issues regarding the management of the National Housing Fund, the delivery of the housing and the beneficial effect the entire National Housing Fund Act will have on the employees. Consequent on the issues raised, the operation of the Act has been suspended with regards to the organized private sector while meetings were being held, to the knowledge and approval of the Defendant, by the Nigeria Labour Congress (of which the Claimant is a member), the Federal Mortgage Bank and the National Employers Consultative Association (of which the Defendant is a member) on how to resolve the issues. That without the resolution of the issues, some members of the Defendants want to start the implementation of the Act, the Claimant therefore filed this suit to restrain the Defendant and any of its affiliate members from deducting the money from the salaries of the Claimant’s members until the issues, are resolved.
THE CASE OF THE DEFENDANT
The Defendant’s case is that it is not affected by the provisions of the National Housing Fund Act because it is not an employer of labour; it is only a trade union of employers and the provisions of the Act do not, directly or by necessary inference, apply to the trade union of its nature. The Defendant vehemently denied the fact that it is aware some of its members threatened to start deducting the 2.5% in compliance with the Act. That its position is that statutory deduction from employees’ salaries is part of internal operations of its members and does not form part of its mandate as a trade union of employers. The Defendant also contends that as an informed entity, it is aware that the Act directs employers of labour to deduct 2.5% from their employees’ salaries and remit same to an appropriate authority. That this is a statutory duty which the employers cannot use their discretion to determine its applicability and commencement. The Defendant further maintained that the role of employers is akin to an unpaid agent under the Personal Income Tax Act, and it gives no room for discretion. The Defendant concluded that it is not a necessary party to this suit as it is not an employer of labour envisaged by the Act.
At the conclusion of the trial, parties filed and adopted their written addresses. The Defendant’s final address is dated and filed on the June 8, 2018 while that of the Claimant is dated and filed on September 24, 2018.
THE SUBMISSION OF THE DEFENDANT
In its final address the Defendant submitted the following issues for determination:
a. Having considered the facts and circumstances of this case, whether the Defendant is a necessary party to this suit;
b. Whether this Honourable Court has the jurisdiction and vires to suspend the operation of the National Housing Fund Act solely on the fact that the stakeholders are still deliberating the benefit or otherwise of the National Housing Fund Act;
c. Whether the Claimant’s relief is grantable within the purview of existing laws, and not alien to our legal system.
The Defendant started with a preliminary issue as regard the admissibility of Exhibits C1 and C4 which it reserved during trial. The Defendant submitted that the Claimant’s witness had tendered the secondary evidence of Exhibits C1 to C4 because originals of Exhibits C1 and C4 are with the Defendant, and originals of Exhibits C2 and C3 are with the recipients of those letters, that Exhibits C1 and C4 are private documents by virtue of section 103 Evidence Act, and their secondary evidence can only be tendered in accordance with sections 89, 90 and 91 Evidence Act. That the secondary evidence can only be tendered in this circumstance if the party tendering it has given notice to the other party or his counsel pursuant to section 91 Evidence Act. That the Claimant did not give notice to the Defendant in respect of Exhibits C1 and C4 either in the pleadings or any other documents before this Court, and those exhibits are not part of the exceptions stated in section 91(a) to (e) and that the Claimant’s failure to give notice to the Defendant, as required by the law, is fatal and fundamental; and has therefore made Exhibits C1 and C4 inadmissible. The Defendant went on that Exhibit C1 was executed by both parties, that by executing Exhibit C1 in several parts by the parties, it becomes original of that document in the possession of the parties pursuant to section 86 Evidence Act. That the argument of the Claimant that the original of Exhibit C1 is in possession of the Defendant is untenable in view of the fact that Claimant also executed it in part and that if the Claimant were to tender secondary evidence of Exhibit C1, it would have resorted to circumstances stated in section 89(a) – (h), rather than stating that the document is in possession of the Defendant. The Defendant therefore submitted that Exhibit C1 is also inadmissible for the reason adduced above. That although Section 12 of the National Industrial Court Act and Order 5 Rule 6 (2)(b) of 2017 Civil Procedure Rules by which this Honourable Court is vested with the power to depart from the provisions of the Evidence Act in the interest of justice, to the Defendant, this instance does not qualify to be a deserving case where departure from the Evidence Act is necessary.
Inconsistency of the Claimant’s witness
The Defendant averred that the Claimant’s witness answered in the negative when he was asked under the cross-examination whether he was aware that one of the laws regulating the relationship between the employer and the employee is the Act. That the witness was referred to paragraph 3 of his deposition wherein he said he was aware that the Act was enacted by the National Assembly and it directed the employers of labour to deduct 2.5% from their employees’ salaries. The Defendant contended that the inconsistency in the Claimant’s witness testimony establishes the fact that he is not a reliable witness and his testimony should be struck out and that the action should be dismissed as there is no evidence supporting the pleading. Citing Queen v Ukpong (1961)2 NSCC 24 at 25 – 26, and Onubogu & Ors v State (1974)9 NSCC.
On issue One, the Defendant submitted that it needs to first analyse the nature and prayers sought by the Claimant in this case before determining whether the Defendant is a necessary in the resolution of the Claimant’s case. That the sole grievance of the Claimant is the application of the Act to its members. That the Parties agreed that under the Act, it is the duty of the employer to deduct 2.5% of their employees’ salaries and remit same to the appropriate agency. The Defendant then reproduced paragraph 3 of the Statement of Facts and said the averment therein was admitted by the Defendant in its paragraph 3 of the Statement of Defence. The question, to the Defendant is: Is the Defendant an employer of the Claimant’s members? The Defendant then averred that the Claimant’s witness has stated under the cross examination that the Defendant is only a trade union of employers of its members, but not an employer of its members and that the last paragraph of Exhibit C4 has established the fact that the Defendant is not the employer of the Claimant’s members.
The Defendant contended that the Claimant did not, by Exhibit C4, advise or instruct the Defendant to stop the deduction of the 2.5% because it knew that the Defendant is not its employers and does not have any obligation under the Act. That the tome and intention of Exhibit C4 are quite different from Exhibits C2 and C3. That by Exhibits C2 and C3, the Claimant confronted that GSK Limited and PZ Cussons Plc on their intention to start implementation of the Act, and tactically asked them to put it on hold while the stakeholders resolve the lingering issue.
The Defendant therefore submitted that based on the above, it is not the employer of the Claimant’s members, and does not have any obligation under the Act to deduct from the salaries of the Claimant’s members and that the Act does not envisage or expressly direct union of employers of labour; the obligation is only on employers and not their unions.
The Defendant further submitted that this issue is a legislative matter among employers, employees, Federal Mortgage Bank and the National Assembly that made the law which can be resolved without the presence of the Defendant. That the Defendant, which has no input nor roles in the administration of the Act, had been unfairly and unlawfully dragged to this Court by the Claimant.
The Defendant also averred that the principles on joinder of parties had been restated in plethora of cases. Citing, among others, Nwankwo vs. Ecumenical Dev. Co. (2002) 1 NWLR (Pt. 749) Pg. 513 @ 534, Lajumoke vs Doherty (1969) NMLR 281 at 287 and the Annotated Civil Procedure Rules of the Superior Courts of Nigeria at page 51.
On issue two, the Defendant’s submission is that this Court lacks the power to suspend the operation of the Act on the facts that stakeholders are deliberating the benefits or otherwise of the Act, as same will amount to introducing into the Act what was not the intention of the legislature. That the Act does state nor envisage that the administration could be suspended in the event of the present circumstance. That the statutory duty of the Court is to interpret the land and not to make the law. That by inviting the Court to do what the law has not allowed the Court to venture into, the Claimant has abused the process of this Court and the Court should therefore not hesitate to invoke its disciplinary power to strike out the action in entirety.
The Defendant further submitted that it is aware that the Court has the constitutional power to examine any Act of the National Assembly and declare same invalid if it is inconsistent with the provision of the Constitution pursuant to section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) but the present action was not brought within the purview of the Constitution to enable the Court exercise its powers. Reliance is placed on Adebowale v Military Governor of Ogun State (1995)4 NWLR (Pt. 392) 733 at 751.
The Defendant then reproduced Section 9 of the National Housing Fund Act and said the word used by the Act is shall, which imports compulsion and confers obligation on the employer to deduct the statutory amount. That it is irrelevant at this forum to consider whether the word ‘shall’ used by the Act is a mistake or the Act in general is not beneficial to the employees. That this Court has no other option than to give effect to the words used by the Statute as that will convey the true import and intent of the legislature about the Act. That if the Claimants are aggrieved by the provisions of the Act, they should seek legislative remedy and not judicial remedy because the jurisdiction of the Court does not extend to making laws or amending existing laws. That it is only the words of the statute that can properly convey the intention of the legislature and it is an act of violence to read into the Act the words that are absent from its provisions. Citing Salami v Chairman LEDB & Ors (1989)5 NWLR (Pt. 123) 539 at 555 – 556. The Defendant went on that the Act does not give room for consultation or deliberation as a condition precedent for its application, nor does it envisage a situation where the administration of the Act will be suspended on the fact that the stakeholders are deliberating the benefit or otherwise of the Act. To the Defendant, the question is: Can this Court stay the application and administration of the Act on circumstances which are not stated in the Act? The Defendant submitted that the answer is in the negative and doing otherwise will amount to amending the Act or importing into the Act what was not contained therein and intended by the legislature. The Defendant said its position is founded on the settled principle of law that the functions of courts are jus dicere and not jus dare, courts are to interpret the law and not make the law. That the words of the Act cannot be overruled by the judges. Citing Anyakora & Ors v. Obiakor & Ors (1990)2 NWLR (Pt. 130)52 at 65- 66.
The Defendant also draw the attention of this Court to section 20 of the Act which makes the failure of employer to deduct 2.5% from the basic salary of his employee an offence punishable on conviction to a fine of N50,000 or a term of 5 years imprisonment or to both and argued that if the Claimant’s relief is granted, then the employers will be encouraged by this Court to contravene the provisions of the Act, for which they may be guilty and convicted under section 20. The Courts, by all extant laws, are not allowed to promote illegality or deliberate contravention of the law.
The Defendant also reproduced section 20(4) of the Act and contended that the institution of this Suit and the Claimant’s action is an obstruction of the administration of the Act, and same is punishable under the Act. That the Defendant is confident that this Court will not encourage the Claimant to further prevent or obstruct the duty of their employers under the Act, because this Court was established to enforce and ensure observance of all laws except where the laws are inconsistent with the provision of the Constitution and that the only way to discourage the Claimant from further obstructing the Act is to decline jurisdiction and dismiss this suit in entirety.
On issue Three, the Defendant adopted its arguments in the preceding paragraphs and submit further that this action is an abuse of court process which must not be allowed, that asking this court to suspend the operation of an Act of the National Assembly based on frivolous reason, such as the present case, is not founded on any law, and is alien to our legal system. That where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness is one of the circumstances that constitute abuse of court process. Citing Ekpo ltd v Pafab Enter Ltd (1999)2 NWLR (Pt. 591) 449 at 462. Based on the foregoing, the Defendant urged this Court to invoke its power to prevent the improper use of the court machinery by the Claimant to the annoyance and irritation of the Defendant. The Defendant further submitted that the court should not only dismiss this action but also punish the Claimant for wasting the precious time of this court. Reliance is place on the Supreme Court position in Onyeabuchi v INEC (2002)8 NWLR (Pt. 769)417 at 441.
The Defendant also maintained that the Claimant’s relief is not grantable for the reason adduced above, and for the further reason that if the relief is granted the order of this Court may not be enforceable because the Defendant cannot force its members to stay the statutory deduction, that each of the members of the Defendant enjoys its autonomy and sovereignty conferred on it by the provisions of the Companies and Allied Matters Act, that upon incorporation of each of the Defendant’s members, its decision making power is vested in the management at the board level and shareholders at the general meetings and that the Defendant is neither a shareholder nor directors in any of its members, and as such it cannot compel them to obey judgment given by the Court in a suit to which they were not parties. The Defendant went on that if the relief is granted, the order may not be enforceable in view of section 20 of the Act which makes noncompliance with the Act an offence punishable on conviction and that this Court cannot act in vain, and should not in this case exercise any of its judicial power to grant the Claimant’s relief as nothing will be achieved in this circumstance. Citing Iweka v SCOA (2000)3 SC 21 at 29.
The Defendant finally urged this Court to dismiss this action with substantive cost on for the reasons stated.
THE SUBMISSIONS OF THE CLAIMANT
In its final written address, the Claimant formulated two issues for determination thus:
Whether the Defendant is not a necessary party to this suit.
Whether the Claimant has proved its case as to be entitled to judgment.
Before arguing the above two issues, the Claimant responded to the Defendant’s preliminary issues as follows:
On the admissibility of Exhibit C1 and C4, the Claimant Submitted that the Defendant was put on notice to produce the original of the documents during trial in paragraphs 7 and 8 of the claimant’s statement of facts in accordance with Sections 89 and 91 of the Evidence Act 2011, but the Defendant failed to produce the original copy of the said documents during trial and that though Exhibit C1 was executed by both parties, only a photocopy was given to the Claimant, whilst the original is in the custody of the Defendant, hence the notice to produce same. Claimant further submitted that this Court is empowered by Section 12 of the National Industrial Court Act 2006 and Order 5 Rule 6 (2) (b) of the 2017 National Industrial Court of Nigeria (Civil Procedure) Rules to depart from the provisions of the Evidence Act in the interest of justice, that the Claimant in this instant case did comply with the provisions of the Evidence Act by laying proper foundation for the tendering of secondary evidence of all exhibits and that the Defendant has not suggested that the contents of the photocopy are not the same as the original. The Claimant urged this court to so hold. Citing CHRISTOPHER U. NWANJI (Trading in the name and style of Fire Stone Enterprises) v COASTAL SERVICES (NIG) LTD (2004) 6 SCNJ 146
On the Defendant’s submission on the inconsistency of the Claimant’s witness, the Claimant contended that the witness did not say he is not aware of the existence of the law, that his answer was that he was not aware that the law regulates the relationship between the employers and employees. The Claimant then submitted that when an Act is said to regulate the relationship between two parties, it means that the Act controls and directs every activity between the two parties, which is not the case in respect of the National Housing Fund Act and the parties to this Suit. The Claimant went on that it can certainly not be argued that the National Housing Fund Act controls or directs the relationship between the employer and the employee. Rather, the relationship between an employer and employee in the private sector is directed and controlled by the Labour Act and the agreement between the parties. Claimant therefore submitted that the Claimant’s witness has not said anything that would make his testimony unreliable and liable to be struck out. It is further submitted by the Claimant that the facts of the cases of Queen v Ukpang (1961) 2 NSCC 24 and Onubogu A ors v State (1974) 9 NSCC cited by the Defendant’s counsel is distinguishable from the case at hand.
The Claimant then argued the issues it had formulated for determination thus:
Regarding the first issue, it is the Defendant’s contention that the Defendant is the umbrella body for all the Companies who are the employers of the Claimant’s members, that under cross examination, the Defendant witness conceded that the Defendant represents the interest of all companies who are employers of the Claimant’s members and that the Claimant and Defendant have held several meetings to deliberate on the issues relating to the National Housing Fund. The Claimant referred this Court to the 1st and 2nd paragraphs of page 5 of Exhibit C1 under the caption “National Housing Fund Scheme”, wherein the Defendant stated that the Issue of the National Housing Fund scheme is giving it serious concern. The Claimant went on that the Defendants witness further stated under cross examination that the issues raised by the Claimant concerning the National Housing Fund have not been resolved and that the Defendant is a member of National Employers’ Consultative Association, which is a stakeholder in the National Housing Fund Scheme. Moreover, that the suspension of the deduction pending the resolution of the issues was the decision of the Defendant, the Claimant, the Nigeria Labour Congress, National Employers Consultative Association and the Federal Mortgage Bank with the Defendant directing its members not to deduct from the salaries of the Claimant’s members until the issues raised by the Claimant are sorted out. Based on the foregoing, the Claimant submitted that the Defendant is a necessary party to this suit and urged this court.
On the second issue, the Claimant submitted that it is trite that the proof required in civil matters is on a balance of probabilities. Citing Section 134 of the Evidence Act 2011, The Claimant contended that it has discharged this burden by proving that the operations of the National Housing Fund Act have been suspended with regards to the Claimant by all the stakeholders including the Defendant whose members the Defendant restrained from deducting the 2.5% from the Claimant’s member’s salaries pending the resolution of the issues raised by the Claimants. That it is indubitable that the issues are yet to be resolved, and this statement of affairs was lending credence to by exhibit C1 and the witness for the Defendant who admitted during cross-examination that the issues hampering the deduction of 2.5% the National Housing Fund by the Defendant’s member companies from the Claimant’s members’ salaries have not been resolved. Citing SOKWO v KPONGBO (2008) 7 NWLR (PT 1086) 342.
The Claimant therefore contended that that since both the Claimant and the Defendant have agreed that the issues that necessitated the suspension of the National Housing Fund operation regarding the Claimant’s members are yet to be resolved, it will be inequitable for the Defendant’s members to start deducting from the Salaries of the Claimant’s members. That the Claimant is not seeking a permanent injunction but a temporary one pending when the issues will be resolved.
The Claimant finally urged this Court to grant the relief as contained in its Complaint and Statement of Facts.
COURT’S DECISION
I have carefully read and understood the processes filed, the evidence led and the submissions of the parties to the suit. I shall now start with the preliminary issues raised by the parties.
The Defendant had raised objection to the admissibility of Exhibit C1 and C4 because they are secondary evidence and they can only be tendered in accordance with sections 89, 90, and 91 of the Evidence Act, that in the case of the Claimant did not comply with the Evidence Act in tendering those documents. The Claimant’s response in this regard is that, it had put the Defendant on notice to produce those documents during trial at paragraphs 7 and 8 of the statement of facts but the Defendant had failed to do so and that it had laid proper foundation before tendering the documents and that the Defendant did not suggest that the contents of those documents were not the same as the original
Given that the Defendant is not denying the authenticity of Exhibit C1 and C4 but only attacking the procedure through which they were tendered, I think the Defendant is being technical while this court is not place of technicality. Aside this, it is clear and as rightly argued by the Claimant that the Defendant was put on notice to produce the originals of Exhibit C1 and C4 at paragraphs 7 and 8 of the Claimant’s Statement of Facts but it failed to do so and this being the case, the Defendant cannot be heard to complain that Exhibits C1 and C4 are inadmissible. It is right that when a notice to produce is served on a party who fails to produce same, then the law allows secondary evidence of such documents to be adduced where available. See Andrew Venn V. Access bank PLC & Ors. (2014) LPELR – 24077 (CA) Buhari V. Obasanjo (2005) 13 NWLR (pt. 941) 1, Ajagbe V. Babalola (2010) LPELR (3668) and Adegbiyi V.Mustapha (2010) LPELR (3600).
The Defendant had also contended that the testimony of the claimant’s witness was inconsistent because the witness has averred at paragraph 3 of his deposition on Oath that he was aware that the National Housing Fund was enacted by the National Assembly and it directed employers of Labour to deduct 2.5% from the employers salary but when asked during cross examination, the witness said he was not aware that the Act was one of the Laws governing the relationship of employers and employees. To the Defendant, this inconsistency in the testimony of the claimant’s witness has established that he is not a reliable witness. The claimant’s response in this regard is that where an Act is said to regulate the relationship between two parties, it means that the Act controls and directs every activity between them which is not the case in respect of the National Housing Fund and the parties to this suit. That it is the Labour Act and the agreement that directed and controlled the relationship between employer and employee in the private sector. To the Claimant, there was nothing that made the testimony of its witness inconsistent.
The claimant’s witness has averred at paragraph 3 of his written statement on oath that the National Housing Fund Act was enacted which directed employers of Labour throughout the Country in both public and private sectors to deduct 2.5% of their employee’s monthly salary as contribution to the Fund for building Houses for workers in all the States of the Federation. On Cross Examination, the Claimant witness was asked, and he responded thus:
Defendant;As a comrade and acting secretary of the Claimant, you are aware of all the laws regulating your members and their employers.
Claimant’s Witness:Yes Sir.
Defendant:One of such laws is the National Housing Fund Act.
Claimant’s Witness:Yes
Defendant:I believe also as a comrade you have taken time to read the law.
Claimant’s Witness:No.
Defendant:Even though you did not read the law, you are aware that under National Housing Fund Act, Employers have the obligation to deduct 2.5% from their employees
Claimant’s Witness:No.
Now, it is clear from the above that the claimant’s witness had, in his written had, in his written statement of oath stated that the National Housing Fund Act has directed all employers of Labour to deduct 2.5% of the salaries of each employee in both public and private sector but when asked under cross examination, if he read the Act he said no and if he was aware that the Act has directed the deduction of 2.5% of employee’s salary by the employer, the claimant witness said no. This means that the witness is not aware of what he deposed to on oath. The law as stated by Edozie JSC in Ezemba V. Ibeneme (2004) ARL FWLR (pt. 223) 1786 at 1810 E.G., is that no witness who has given on oath two materially inconsistent evidence is entitled to the honour of credibility such a witness does not deserve to be treated as truthful. See also Orji & Anor V. P.D.P. & Ors. (2008) LPELR 4099 CA. This being the case, I agree with the submission of the learned Counsel of the Defendant that the claimant’s witness is not a reliable witness. The testimony of the Claimant’s witness is accordingly hereby discountenanced, and I so hold.
I shall now turn to the merit of the case before me. In my view, the 1st two issues for determination which were formulated by the defendant in this case, have captured the issues in controversy between the parties, I shall accordingly adopt them a mine in this judgement. The issues are:
1. Having considered the facts and circumstances of this case, whether the Defendant is a necessary party to this suit.
2.Whether this Honourable Court has the jurisdiction and vires to suspend the operation of the National Housing Act solely on the fact that the stakeholders are still deliberating the benefit or otherwise of the National Housing Fund Act.
I shall start with the 2nd issue. The only relief being claimed by the claimant in this suit is for an order of this court restraining the Defendant and any of its Affiliate from deducting or further deducting the National Housing Fund from the salaries of members of the claimant until the claimant and other stakeholders thrash out how the housed will be delivered and the benefit that will accrue to the claimant’s members. Now, having discountenanced the claimant’s witness’ testimony, the only thing left for me is to examine the provisions of the National Housing Fund Act to see whether the relief being claimed by the claimant is grantable or not.
By S.4 (1) of the Act, a Nigerian worker earning an income of N3, 000 and above per annum in both public and private sectors of the economy shall contribute 2.5% of his basic monthly salary to the Fund. Section 9 of the Act makes it obligatory on every employer whose employee earns a basic salary of N3, 000 and above per annum to deduct 2.5 per cent from the employee’s monthly salary as the employee’s contribution to the Fund and to remit same to the Bank within one month of the making of the deduction. Section 20 of the Act criminalizes failure to make deduction or non-remittance after deduction by the employers and any person who prevents or obstructs the deduction or remittance of the deduction due to the bank under the Act. Bank is defined as Federal Mortgage Bank under Section 26 of the Act.
It is patently clear from the above that the provisions of the National Housing Fund Act are mandatory. It is trite that courts are band to enforce the mandatory provisions of a substantive law. It is the duty of all courts to give effect to legislation. In other words, it is the duty of court to give effect to mandatory provisions of an enactment. See Governor, Ekiti State & Anor. V. Chief Femi Akinyemi & Ors. (2011) LPELR – 4218 (CA), Adedeji V. National Bank of Nigeria Ltd. & Anor. (1989) 1 NWLR (pt. 96) 212 at 222 and Anisu V. Osayomi & Ors. (2010) LPELR 11974.
A court of law cannot ignore provisions of a statute which are mandatory or obligatory and tow the line of justice in the event that the statute has not done justice. Courts of law can only do so in the absence of mandatory or obligatory provisions of a statute. In other words, where the provisions of statute are mandatory or obligatory court of law cannot legitimately brush the provisions aside just because it wants to do justice in the matter. See Calabar Central Co-operative Thrift and credit society Limited & Ors V. Bassse Ebong Ekpo (2008) LPELR – 825 (SC) and Tarzoor V. Lovaer (2015) LPELR – 25975.
It follows therefore from the foregoing that the only relief being claimed by the claimant is not grantable because granting same will amount to the violation of the mandatory provisions of the National Housing Fund Act. I therefore agree with the submission of the Learned Counsel for the Defendant that this court lacks the jurisdiction to grant the Claimant’s relief as same is not supported by any law and is an abuse of legal process.
Having said the above, I do not think there is any need to consider the first issue for determination as it would serve no purpose. In other words, it will be an academic exercise which courts of law do not embark upon because they are not academic institutions. See Attorney General of the Federation V. All Nigeria Peoples Party & Ors. (2003) LPELR-630 (SC), LG Kwara State V. Alao (2000) 9 NWLR (pt.671) 84 and Adeleye V. Alade (1999) 6 NWLR (pt. 608) 544.
In the final analysis and for the reasons stated, I find no merit in the Claimant’s case, it fails, and it is hereby dismissed.
Cost of N50, 000.00 (Fifty Thousand Naira only) is awarded against the Claimant in favour of the Defendant and shall be paid within 30 days from the date of this judgment.
Judgment is entered accordingly.
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HON. JUSTICE MUSTAPHA TIJJANI
