IFEANYI ENE VS HAJAIG CONSTRUCTION [NIG] LTD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

Date: 4th October 2018

SUIT NO. NICN/EN/17/2015

BETWEEN

IFEANYI ENE

CLAIMANT

AND

HAJAIG CONSTRUCTION [NIG] LTD

DEFENDANT

REPRESENTATION:

Enechi Onyia, SAN with Chukwuma Ifeanyi Enechi Onyia Esq., Ngozi Eze [Ms.], Adolphus Chukwuemeka Alomode Esq., Nnaemeka Okwor Esq. and for the Claimant

Emmanuel Mbaelu Offordile Esq. with Chidi Stanley Eseli Esq. for the Defendant

JUDGMENT

The Claimant commenced this action by a Complaint on 12th March 2015 claiming against the Defendant for:

An order that the abrupt termination of the Claimant’s employment is unlawful, null and void; or in the alternative,

An order that the Defendant company pays the Claimant his entitlements.

N5, 000,000 special and general damages for the loss of sight and trauma arising therefrom.

The Claimant filed with the complaint a statement of facts, his statement on oath, list of witness, list of documents and copies of the documents he wished to rely on at the trial. The Defendant entered appearance and filed its defence processes on 11th May 2015. The Claimant filed a reply to the statement of defence on 20th May 2015. Trial commenced on 20th March 2018 and was concluded on 19th April 2018. The Claimant testified for himself and tendered 10 exhibits, exhibits 1 to 10, in proof of his claim. The Defendant called two witnesses and tendered 8 exhibits, exhibits DW1 to DW8. The case was thereafter adjourned for adoption of final written addresses. The Defendant filed a notice of preliminary objection and final written address. The Claimant filed a counter affidavit and written address in response to the preliminary objection and his final written address. The Defendant filed a reply to the Claimant’s final written address. Learned Counsel for the Defendant, Mr. Offordile, argued his preliminary objection and adopted the Defendant’s final written address dated 4th June 2018 and reply on point of law dated 16th July 2018 as the Defendants’ argument in support of the defence. Learned Counsel for the Claimant, Mr. Okwor, adopted the Claimant’s counter affidavit and written address in opposition to the preliminary objection and his final written address dated 28th May 2018 as his argument in support of the claim. The case was consequently set down for judgment.

SUBMISSION ON BEHALF OF THE DEFENDANTS

The Defendant’s preliminary objection is brought pursuant to the inherent powers of the Court on the ground that the suit is in breach of sections 2[1], 4[1] & [2] and 5[1] & [2] of the Trade Disputes Act and Articles 9 and 10 of the National Joint Industrial Council Agreement on terms and conditions of service for junior employees in the building and civil engineering industry. The preliminary objection was supported with 13 paragraphs affidavit deposed to by Mr. Stanley Ogbonna and a written address. Learned Counsel raised two issues for determination, one of which is apposite while the second does not relate to the preliminary objection. It was submitted that the failure of the Claimant to observe the provisions of the laws and articles of NJIC particularly articles 9 and 10 is fatal to this suit and affects the jurisdiction of the Court. Learned Counsel raised three issues in the Defendant’s final written address, to wit:

Whether in the face of the manifest contradictions in the evidence of the Claimant, he could rightly be said to have proved his case?

Whether the Claimant who was responsible for his injury as confirmed by the workers’ union leaders, but graciously allowed by the Defendant, on humanitarian ground, to receive his full salaries until 2014 when the workers were served with letter of redundancy, would turn around and sue the Defendant for his injury?

Whether the Honourable Court has the jurisdiction to entertain this suit in view of the provisions of the laws particularly the Trade Disputes Act and NJIC Rules?

Arguing issue one, learned Counsel referred to paragraphs 3, 5 of the statement of facts and paragraphs 2, 3 and 5 of the reply to the statement of defence and contended that the statements are contradictory and makes the Claimant’s evidence unreliable. It was submitted that where there are contradictions in the evidence of a witness, the Judge cannot pick and choose which of the evidence to believe and relied on Ijeoma v. State [1990] 6 NWLR [pt.158] 567 and Ayinde v. Abiodun [1999] 8 NWLR [pt.616] 589. Learned Counsel invoked section 167[d] of the Evidence Act 2011 and urged the Court to hold that the failure of the Claimant to produce his Government Technical College certificate is because it would conflict with exhibits 2 and 5.

On issue two, learned Counsel explained that the leaders of the Workers Union blamed the Claimant for his reckless and blameworthy action which resulted to his injury and submitted that having been found faulty by the Union leaders and received his salary till 31st December 2014, he has waived his right and cannot maintain an action against the Defendant.

Canvassing issue three, he submitted that the steps laid down by the provisions of the law and articles aforementioned are condition precedent to the exercise of the Court’s jurisdiction in Trade Dispute matters. It was further submitted that in order for a court to assume jurisdiction over a matter before it, the case must be initiated by due process of law or the condition precedent to exercising jurisdiction is complied with and referred to Madukolu v. Nkemdilim [1965] 1 All NLR 587.

SUBMISSION ON BEHALF OF THE CLAIMANT

In response to the preliminary objection, the Claimant filed a counter affidavit and written address. The Claimant argued that the laws relied on by the Defendant are not relevant to the issue before the Court. It was further argued that given the statement of facts and claim before the Court, it does not have anything to do with inter/intra union dispute. On the main claim, the Claimant raised three issues for determination, namely:

Whether or not the Claimant has proved his case to entitle him to the judgment of the Court?

Whether or not the Defendant has the duty of care to his employees?

Whether the termination of the Claimant’s employment by the Defendant is legal?

Learned Counsel argued the three issues together. He contended that it is the duty of the employer to see to the treatment of its employee for injury sustained in the course of his work. Learned Counsel went on to explain three key areas the employer will be liable for harm done to the employee namely vicarious liability, where the employer has a statutory duty to protect the employee and under common law rules; and submitted that the duty which the Defendant owes the Claimant falls within the second and third categories. It was also submitted that where there is no statutory provision on whether the employer owes its employee a duty of care, the common law principle vests upon the employer the duty to take care of its employees by providing safety kits and conducive work environment and the Defendant failed in its duty to the Claimant and referred to Kabo Air Ltd. V. Ismail Mohammed [2014] LPELR-233614[CA]. It was also submitted that the termination of the Claimant’s employment is illegal and referred to P.O.U. Iyase v. University of Benin Teaching Hospital Management Board [1999] LPELR-6026[CA] and Osisanya v. Afribank [Nig.] Plc [2007] 6 NWLR [pt.1031] 565. He submitted that the termination of the Claimant by the letter of redundancy is a wrongful termination and as such the Claimant is entitled to his entitlements and damages.

REPLY ON POINT OF LAW

By way of reply on point of law, the Defendant referred to Chagaury v. Yakubu [2006] 3 NWLR [pt.966] 138 and submitted that it cannot be held liable for the injury sustained by the Claimant as a result of his carelessness. It was further submitted that the standard of care which an employer must observe is the care which an ordinary prudent employer would take in all the circumstances. The employer does not guarantee that an employee will not be injured, he only undertakes to take reasonable care and he will only be liable if there is some lack of care on his part in failing to prevent something which was reasonably foreseeable and referred to Vinneryey v. Star Paper Mills [1965] 1 All ER 175. It was further contended that where the accident was solely due to the fault of the employee, the employer will not be liable. It was further argued that there was no wrongful termination of the Claimant’s employment by the Defendant and relied on section 20[1] and [3] of the Labour Act and P.A.N. Ltd v. Oje [1997] 11 NWLR [pt.530] 625 at 627.

COURT’S DECISION

I have considered the processes filed in this suit and submissions of learned Counsel for the parties. From the pleadings and the evidence before the Court, the issue for determination is whether the Claimant has proved his case to be entitled to the reliefs sought or any of them?

First, let me deal with the Defendant’s preliminary objection which is anchored on sections 2[1], 4[1] & [2] and 5[1] & [2] of the Trade Disputes Act, CAP T8, Laws of the Federation of Nigeria 2004 and Articles 9 and 10 of the National Joint Industrial Council Agreement on terms and conditions of service for junior employees in the building and civil engineering industry. I need to mention here that the issue raised in the preliminary objection is similar to issue three in the Defendant’s final written address. The gravamen of the objection is that this being a trade dispute, the conditions precedent to bringing the action in Court were not complied with and the non-compliance robs the Court of jurisdiction to entertain the suit. In determining whether this case is a trade dispute or not, I will need to look at the complaint and statement of facts which disclose the cause of action. It is the cause of action that determines whether the case is one of trade dispute or not. From the pleading and the reliefs sought, it is clear that this case is one of wrongful termination and damages for injury sustained in the course of employment. It is my firm view, therefore, that from the facts and issue before the Court, there is nothing in this case bringing it within the meaning of trade disputes in the Trade Disputes Act. A trade dispute is defined in section 48[1] of the Trade Disputes Act as “any dispute between employers and workers or between workers and workers, which is connected with employment or non-employment, or the terms of employment and physical conditions of work of any person.” For a dispute to qualify as a trade dispute, it must possess the following characteristics:

[a] there must be a dispute;

[b] the dispute must involve a trade;

[c] the dispute must be between:

employers and workers; or
workers and workers; and

[d] the dispute must be connected with:

employment or non-employment, or
the terms of employment, or

iii. physical conditions of work of any person.

See Attorney-General of Oyo State v. Nigeria Labour Congress, Oyo State Chapter & 4Ors. [2002] LPELR-7077[CA] at pages 27-28, Adam Oshiomhole & Anor. v. Federal Government of Nigeria & Anor. [2006] LPELR-7570[CA] at pages 22-23 and National Union of Electricity Employees & Anor. v. Bureau of Public Enterprises [2010] LPELR-1966[SC] at pages 28-29. There is no doubt that the instant case involves a dispute between an employer and an employee and it is connected with the terms of employment. However, there is no relief in the complaint and statement of facts disclosing a trade dispute by whatever definition. For a dispute concerning terms and conditions of employment to become a trade dispute a relief in the originating process must disclose a trade dispute or a trade union is involved in the action. See Compendium of Employment and Labour Law in Nigeria, second edition by Abubakar Sadiq Ogwuche at page 187, Sea Trucks [Nig.] Ltd. v. Ayo Pyne [1995] 6 NWLR [pt.400] 166 at 180 and Royalty Hotels & Recreation Ltd & Ors. v. National Union of Petroleum & Ors. [2011] LPELR-4906[CA] page 4. It is beyond dispute that the provisions of sections 2[1], 4[1] & [2] and 5[1] & [2] of the Trade Disputes Act do not contemplate the ordinary dispute between an employer and employee involving wrongful termination or injury. These sections make provisions for settlement of trade disputes between employers and workers or workers and workers. I have come to this conclusion based on my reading of the Trade Disputes Act. Section 1[1] of the Act reinforces my view. It states that “where a trade dispute exists or is apprehended, the provisions of this Part of this Act shall apply in relation to the dispute.” In essence, the provisions of sections 2[1], 4[1] & [2] and 5[1] & [2] of the Trade Disputes Act do not stand alone but must be read in conjunction with section 1 and other sections of the Act. It is a settled rule of interpretation of statutes that the Court should not lend its weight to an interpretation that defeats the object of a statute. Also, that the language of a statute should not be stretched to defeat the aim of the statute. See Diokpa Francis Onochie & 2Ors. v. Ferguson Odogwu & 7Ors. [2006] LPELR-2689[SC] at page 24. In Federal Civil Service Commission & 2Ors. v. J. O. Laoye [1989] 2 NWLR [pt. 106] 652 at 682, Eso, J.S.C., observed that:

“It has long been established that the legislator himself intends the interpreter of an enactment to construe an enactment in such a way as to implement, rather than defeat, the legislative intention.”

As observed above, the case before this Court is a simple employer and employee dispute for compensation for wrongful termination and injury sustained in the course of employment which has no colouration of a trade dispute as defined in the Trade Disputes Act. See Sea Trucks [Nig.] Ltd v. Ayo Pyne [supra] at page 180. In addition, the existence of a trade dispute is a question of fact which must be proved by evidence and the onus is on the Defendant to strictly prove it. See Sunday Oshodi Apena v. National Union of Printing Publishing and Paper Products [2003] 8 NWLR [pt. 822] 426 at 447, where Chukwuma-Eneh, J.C.A. [as he then was], held:

“The point has to be made that the question of a trade dispute is a matter of fact and the onus is on the party alleging it and has to be strictly construed and has to be noted at the outset.”

There is nothing in the statement of defence and Defendant’s witnesses’ depositions disclosing a trade dispute within the meaning of trade disputes in the Trade Disputes Act in any manner whatsoever. In the notice of preliminary objection, reference was made to articles 9 and 10 of the National Joint Industrial Council Agreement on terms and conditions of service for all junior employees in the building and civil engineering industry in Nigeria. This document was not attached to the preliminary objection or to the defence processes and the provisions of articles 9 and 10 which the Claimant allegedly did not comply with were not specified in the affidavit in support of the preliminary objection or the written address. It must be noted that this document does not fall within the category of matters that this Court is required to take judicial notice of under section 122[1] and [2] of the Evidence Act, 2011. It is not a subsidiary legislation. Accordingly, I hold that the preliminary objection is misconceived and consequently overruled. This dispenses with issue three in the Defendant’s final written address.

This leads me to the main issue for determination in this suit, namely, whether the Claimant has proved his case to be entitled to the reliefs sought or any of them? The law is trite that the burden of proof is on the Claimant who alleges wrongful termination of his employment and he discharges this by setting out the terms and conditions of his contract of service and the manner in which it was breached. See sections 131[1] and 133[1] of the Evidence Act 2011 and Patrick Ziideeh v. Rivers State Civil Service Commission [2016] 9 ACELR 22 at 31. It is also the law that the Claimant who seeks damages for injury suffered in the workplace must prove that the injury arose out of and in the course of employment. See section 7[1] of Employees Compensation Act, 2010 and Afrab Chem Limited v. Pharmacist Owoduenyi [2014] LPELR-23613[CA] at pages 31-32. It is not in doubt that the Claimant was an employee of the Defendant until he was served with the letter of redundancy on 23rd January 2015. The Defendant admitted this fact in paragraph 1 of the statement of defence. It is trite law that facts admitted require no further proof. See R. O. Iyere v. Bendel Feed and Flour Mill Ltd. [2008] 7-12 SC 151 at 162. What is in dispute is whether the Claimant’s injury arose from his negligence or a breach of duty of care by the Defendant. The Claimant’s account of the accident is that on 8th December 2011 he and one Mr. Joe, a mechanic worked on the V8 dozer engine and on completion the engine was tested and worked perfectly. Thereafter, one Mr. Elkan, an expatriate mechanic of the Defendant came from his office and carried out further tests on the engine and found it working perfectly. He asked that the engine should be supported with a battery and instructed the Claimant to hold the battery. Mr. Elkan flicked a switch which increased the flow of current to the engine as a result the battery exploded and the acid spilled into the Claimant’s left eye. The Defendant’s account defers remarkably from the Claimant’s account. The Defendant stated that on 8th December 2011 Mr. Elkan and his team worked on a V8 dozer engine which was tested and found to be working perfectly well and thereafter parked it. While Mr. Elkan and his team were on break the Claimant proceeded to where the dozer was parked, removed the battery and tried to reconnect it. In the process the battery exploded and acid from the battery affected his eye. The Defendant further stated that the Claimant most negligently connected the positive terminal head of the cable to the negative terminal of the battery resulting in the explosion. The Defendant’s account runs contrary to the course of events and highly improbable. It is unlikely that the Claimant, as a junior staff, without a mental health issue or an intention to steal, could of his own volition remove a battery from a parked vehicle and attempt to re-fix it. I am inclined to believe the Claimant’s testimony which was reinforced under cross examination. He said: “When the accident happened Jude was not there and the Chairman of the Workers Union was not there. They came after some hours, about one hour after. There were lots of vehicles in the premises when this happened. Only the mechanic and the white man, Mr. Elkan were saying “let’s go and call Jude”. The Chairman of the Workers Union testified as DW1. Under cross examination he said: “I was not in the workshop when the accident happened…. I was in the Enugu Site when this incident happened.” This corroborates the account of the Claimant. The other evidence of DW1 is mere hearsay because he was not there when the accident happened and could not positively say whether Mr. Elkan instructed the Claimant to hold the battery or not. An evidence is hearsay which does not derive directly from the witness himself but rests on the veracity of another person. DW1 and DW2 were not at the Workshop at that point in time and could not truthfully give account of what transpired before the accident. It is settled law that hearsay evidence is not admissible to prove a fact or matter. See Mrs. Amara Love Igwe v. Ayoola Abdulmalik Ebun Alaka & Ors. [2016] LPELR-40222[CA] at pages 13-14. The defence witnesses were not eye witnesses of the accident and have not shown the source of their version of the accident. The report allegedly made by Mr. Elkan to the Defendant and the Union was not tendered in evidence and it is safe to conclude that either the report does not exist or it does not support their account of the accident. DW2 who is the transport officer under cross examination said: “I don’t know how many mechanics were working in the workshop at the time of the incident. I know Mr. Elkan made a statement to the Management and the Union. Ifeanyi was employed as an Industrial electrician. Yes, somebody can enter the workshop without the permission of the Workshop Manager depending on what you want to do in the workshop. Yes, nobody can enter the workshop and work without the Workshop Manager’s permission. I was not bodily present in the workshop when the accident happened.” It is clear from this testimony that the Claimant could not have removed the battery without the directive of Mr. Elkan, the Workshop Manager. DW2’s testimony under cross-examination shows that the accident did not happen during the lunch break.

From the evidence, the following facts are established. The Claimant was employed by the Defendant as electrician attached to the workshop department, exhibit 1. On 8th December 2011 while working on a V8 Dozer engine with Mr. Jude and Elkan the battery exploded and acid from the battery spilled into the Claimant’s left eye. He was taken to the University of Nigeria Teaching Hospital Ituku Ozalla same day but operated on the next day, after which he was informed that he has lost his left eye. He was thereafter taken to Federal School of Dental Technology Enugu where he was operated on again and the lost eye replaced with an artificial eye. He continued to receive his salary while undergoing treatment until he was served with a letter of redundancy on 23rd January 2015, exhibits 4 and DW 2. In its final written address, the Defendant argued that in the face of the manifest contradictions in the Claimant’s evidence as to his qualification and employment and account of how the accident happened, he could not be said to have proved his case as the Judge cannot pick and choose which of the evidence to believe. Perhaps, I should say at this point that it is not every contradiction in the evidence of a witness that is fatal to his case. The Claimant’s credentials are not in issue in this case. It is accepted by both parties and confirmed by exhibit 1 that the Claimant was employed as an Electrician and deployed to the Workshop department. I have also found above that the Claimant’s account of the accident is more plausible and that the evidence of the defence witnesses is hearsay. For a contradiction to destroy the credibility of a witness, it must be a material contradiction in the sense that it is likely to create doubt in the mind of the Court. Thus, the contradiction must go to the substance of the case or the essentiality of the material fact in issue. See Adebayo Idowu v. The State [2011] LPELR-3597[CA] at page 60 and Chief L. K. Ajibare & Anor. v. James Akomolafe & Anor. [2011] LPELR-3948[CA] at page 85. The evidence of the Claimant remained consistent that Mr. Elkan instructed him to support the engine with a battery, and when he did, Mr. Elkan flicked a switch and the battery exploded. This is a material fact. The other detail of whether the engine was tested once or twice and in the presence of Mr. Elkan is, in my view, not a material fact; and cannot erode the credibility of the Claimant’s evidence. In the circumstance, I find and hold that there is no contradiction in the evidence of the Claimant on the cause of the accident to render his testimony unbelievable.

On his part, the Claimant contended that he has proved his case and relying on Kabo Air Ltd. V. Ismail Mohammed [2014] LPELR-233614[CA] argued that an employee alleging negligence on the part of an employer need not strictly prove that the breach of duty of care was directly responsible for his injuries. It must be noted, however, that the Claimant’s case as disclosed in the statement of facts is not founded on negligence but on breach of duty of care arising from absence of protective clothing. There is inherent and implied duty imposed on the employer to take reasonable care to ensure the safety of its employee notwithstanding any term in the contract of employment to the contrary. See Afrab Chem Limited v. Pharmacist Owoduenyi [2014] LPELR-23613[CA] at pages 29, 30. In R. O. Iyere v. Bendel Feed and Flour Mill Ltd. [supra] at pages 163-164, per Muhammad, J.S.C., held:

“A contract of employment connotes a contract of service or apprenticeship whether express or implied, and if it is express, whether it is oral or in writing. The general requirement of law where there exists a service relationship between employer and employee is that the former is under a duty to take reasonable care for the safety of the latter in all circumstances of the case so as not to expose him to an unnecessary risk…. The level of this duty is the same as that of the employer’s common law duty of care in the law of negligence.”

In Kenneth Ighosewe v. Delta Steel Company Limited [2007] LPELR-8577[CA] at pages 19-20, Ibiyeye, J.C.A., held that once a Plaintiff has successfully shown that he suffered personal injury as a result of a breach of duty of care owed to him by the Defendant, the Court will proceed to assess the damages claimed on available facts. There is a duty on the part of the Defendant to provide the Claimant with protective clothing. This is both a statutory and common law duty. See section 47 of the Factories Act, CAP F1, Laws of the Federation of Nigeria 2004. There is equally evidence that the protective clothing was not provided. See paragraph 8 of the Claimant’s further statement on oath. Under cross-examination, the Claimant said: “I requested for the safety kits but they promised to provide but never provided it. It was after the accident that they brought safety boots but did not give us goggles till I left.” I find as a fact that Mr. Elkan was the Workshop Manager and at the material time was acting within the scope of his employment when the accident occurred. It is my considered opinion that in these circumstances, the Defendant is liable for the injuries sustained by the Claimant. See R. O. Iyere v. Bendel Feed and Flour Mill Ltd. [supra] at pages 169-170. Curiously, and in flagrant breach of the provisions of section 51[1][b] of the Factories Act and section 5[1] of the Employee’s Compensation Act, 2010, the Defendant failed to report this accident to the Inspector of Factories and National Council for Occupational Safety and Health in the State, thus denying the Claimant of the opportunity to claim under the Employee’s Compensation Act, 2010. In answer to a question by the Court whether the accident was reported, DW1 said: “No, we practice internal democracy.” This smacks of cover up as no manner of internal arrangement or “democracy” will obviate the necessity for compliance with statutory provisions. Applying these legal principles to the facts of this case, I find and hold that the Claimant has established his entitlement to damages for loss of his left eye.

The Claimant’s first relief is for an order that the abrupt termination of his employment is unlawful, null and void. It is trite law that termination of an employment which does not enjoy statutory flavour cannot be declared null and void, and as a result, reinstatement is not possible in an ordinary master and servant relationship. SeeMr. Kunle Osisanya v. Afribank Nigeria Plc [2007] LPELR-2809[SC] at page 19. The remedy of the employee where he successfully proves wrongful termination is in damages. The evidence before this Court is that the Claimant was served with a letter of redundancy because the Defendant has financial problems. Our laws do not prohibit redundancy. Section 20[1][c] of the Labour Act, CAP L1 Laws of the Federation of Nigeria, provides that:

“[c] the employer shall use his best endeavours to negotiate redundancy payments to any discharged workers who are not protected by regulations made under subsection [2] of this section.”

In Peugeot Automobile Nigeria Limited v. Saliu Oje & Ors. [1997] LPELR-6331[CA] at page 15, Mohammed, JCA [as he then was] held:

“Redundancy in service in my view, is a mode of removing off an employee from service when his post is declared “redundant” by his employer. It is not a voluntary or forced retirement. It is not a dismissal from service. It is not a voluntary or forced resignation. It is not a termination of appointment as is known in public service. It is a form unique only to its procedure where an employee is quietly and lawfully relieved of his post. Such type of removal from office does not, in my view, carry along with it any other benefit except those benefits enumerated by the terms of contract to be payable to an employee declared “redundant”.

In effect, the declaration of the Claimant redundant is not an actionable wrong. However, he can sue for such benefits as are provided for in the conditions of service. Consequently, relief one seeking an order that the abrupt termination of the Claimant’s employment is unlawful, null and void fails and it is hereby dismissed.

I will now proceed to look at the Claimant’s alternative reliefs. Relief 2 is for an order that the Defendant company pays the Claimant his entitlements. There is unchallenged evidence that the Claimant was served a letter of redundancy on 23rd January 2015, exhibits 7 and DW2. There is also evidence that the Claimant’s assessed benefits in exhibits 7 and DW2 have not been paid. It was clearly written on exhibits 7 and DW2 that “However, the above entitlement will be paid to you as soon as the company current situation improves and you will be called upon.” There is nothing before me to prove otherwise. It is the law that workers who have been declared redundant are entitled to be paid redundancy benefits. SeeNational Union of Textile, Garment and Tailoring Workers v. Nigeria Kraft Bags Limited, Digest of Judgments of National Industrial Court [1978 – 2006] at pages 56 to 58. See also the case of Peugeot Automobile Nigeria Limited v. Saliu Oje & 3Ors. [supra] at page 15, where it was held that the employee is not entitled to any benefits except as enumerated in the contract of service as payable to the employee declared redundant. In exhibit 7 the sum approved by the Defendant as payable to the Claimant is N60, 937.62. There is nothing before me to show that this amount has been paid. The onus is on the Defendant to adduce evidence of payment. See Honika Sawmill [Nig.] Ltd. v. Mary Okojie Hoff [1992] 4 NWLR [pt.238] 673 at 679. I therefore find and hold that the Claimant is entitled to the sum of N60, 937.62.

The next relief is for the sum ofN5, 000,000 special and general damages for the loss of sight and trauma arising therefrom. There are no particulars of the special damages. The only special damages contained in the pleading and the Claimant’s statement on oath is the sum of N20, 000 which is the balance of cost of fixing the artificial eye and which sum was not specifically claimed. The Defendant acknowledged this amount but claimed that it was paid to the Claimant but did not present any proof of payment. As it is the law, he who asserts the positive of any fact must prove, see section 136[1] of the Evidence Act, 2011 and Honika Sawmill [Nig.] Ltd. v. Mary Okojie Hoff [supra] at 679. The Defendant has not proffered evidence of payment of this amount. On the drugs purchased, there is no evidence of the amount owed by the Defendant and it is a well-known principle of law that a court of law does not embark on a jamboree of fact finding. See Peugeot Automobile Nigeria Limited v. Saliu Oje & 3Ors. [supra] at page 16. Accordingly, the claim for special damages fails and it is hereby dismissed. On the claim for general damages for loss of his left eye and trauma arising therefrom, there is a clear evidence of pain and suffering; and from the evidence of the Defendant’s witnesses, the Claimant was not able to perform his duties properly after the accident. No amount of compensation can restore his left eye. This is a personal injury case and there is in law no specific evidence that must be adduced in support. What is clear from decided cases is that evidence of physical disability arising from the damage is sufficient. See R. O. Iyere v. Bendel Feed and Flour Mill Ltd. [2008] LPELR-1578 at pages 52-53. In C & C Construction Company Ltd. & Anor. v. Samuel Tunde Okhai [2003] LPELR-821[SC] at page 28, per Uwaifo, J.S.C., held:

“Once a plaintiff has successfully shown that he suffered personal injury as a result of a breach of duty owed him by the defendant, the claim for pain and suffering must be considered. No principle can be laid down upon which damages for pain and suffering can be awarded in terms of quantum. There is, however, no doubt that pain and suffering is a recognised head of award that sounds in general damages. The court must consider what the compensation should be going by the evidence that gives an insight into the intensity of the pain and suffering. The award is usually generous although it should not be excessively high or grossly low. It must be such as reasonably tends to reflect the intensity of the pain and suffering.”

See also Francis Osa We Eseigbe v. Friday Agholor & Anor. [1993] LPELR-1164[SC] at 42-43. In R. O. Iyere v. Bendel Feed and Flour Mill Ltd. [supra] at page 195, Muhammad, J.S.C., observed that:

“On the principle relating to non-pecuniary loss, it is that of fair and reasonable compensation. Money, certainly cannot renew a shattered human frame. However, monetary compensation can be awarded so that the Court must do the best it can in the light of the circumstances of each case as the object of the award of damages is to compensate the plaintiff fairly and adequately but not necessarily punishing the defendant.”

I am mindful of the age of the Claimant, which is put at 30 years at the time of filing this suit, the associated pain and suffering at the time of the accident, during the period of his treatment and up till today. I also take into consideration that this is a permanent disfigurement with concomitant reduction of his ability to work and earn a living. There is no evidence of the Claimant’s monthly salary but judging from his redundancy benefits, I find as a fact that he is a low-income earner. I am also mindful of the fact that the Claimant earned his full salary throughout the period of his treatment. See Technoplastic [Nig.] Limited v. Sale Jatau [1986] 4 NWLR [pt. 38] 771 at 778-779. Accordingly, I award the Claimant the sum of N500, 000 [five hundred thousand naira] as general damages for the loss of his left eye and trauma arising therefrom.

Before I conclude, I would like to comment on the issue of waiver raised by learned Counsel for the Defendant. There is no evidence from which to infer a waiver of the Claimant’s right to action for his injury. Mere payment of his salary will not suffice. It is also the law that a person cannot waive or be presumed to have waived a right he is not aware of. SeeO. A. Adeyemi v. Governing Council of Yaba College of Technology [1993] 6 NWLR [pt.300] 426 at 465. I have observed earlier that the Defendant, in breach of statutory provisions, refused to report this accident to the Inspector of Factories and National Council for Occupational Safety and Health in the State, thus denying the Claimant of the opportunity to claim under the Employee’s Compensation Act. On the whole, the submission is misconceived and hereby discountenanced.

On the whole, the Claimant’s case succeeds in part. The principal relief fails and it is dismissed. The alternative reliefs succeed in part. Accordingly, I hold and order as follows:

The Defendant shall pay to the Claimant the sum of N60, 937.62 [sixty thousand, nine hundred and thirty-seven naira sixty-two kobo] being his assessed terminal benefits.

In addition, the Defendant shall pay to the Claimant the sum of N500, 000 [five hundred thousand naira] as general damages for loss of his left eye and consequent trauma.

Cost follows event and a successful party is entitled to cost of the action. Pursuant to Order 55 rules 1 and 5 of National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, cost of N100, 000 [one hundred thousand naira] is awarded in favour of the Claimant against the Defendant.

This judgment shall be implemented within 14 days from today failing which the monetary awards shall bear interest at the rate of 10% per annum from the 12th day of October 2018 until it is fully liquidated.