DANIEL OJIKE VS ANNSED LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN Ph.D

DATE: 18^TH JUNE, 2018.

SUIT NO.: NICN/EN/50/2017

BETWEEN:

DANIEL OJIKE ================================ CLAIMANT

AND

ANNSED LIMITED =========================== DEFENDANT

REPRESENTATION:

Anene Ojinta Esq., C. O. Ayianta Esq., Job Ameh Esq. for the Judgment Claimant

C.L. Udeogu Esq. holding the brief of Kingsley Elobuike Esq. for the Judgment Defendant

JUDGMENT

The claimant in this suit instituted this suit on the 23^rd August, 2017 against the defendant claiming the following relieves

A declaration that the defendant owed the claimant a duty to provide him safety at work place, which duty the defendant failed or neglected to provide the latter for which reason he suffered permanent partial disability in his right hand on 14^th January, 2017 that led to the amputation of two of his fingers and the remainder not in good state.

A declaration of this court that the claimant is entitled to compensation for the permanent partial disability and disfigurement loss of amenities of life, bodily pain and suffering and a future that is fraught with uncertainties as a result of the injury he suffered on 14^th January, 2017 while working for the defendant in their factory.

An order of the court that the claimant is entitled to N529,906.47 as special damages.

An order of the court that the defendant shall pay the sum of N20,000,000.00 only to the claimant as compensation for the permanent partial disability and disfigurement, loss of amenities of life, bodily pain and suffering which the claimant has suffered and may suffer in future, loss of earnings and a future that is fraught with uncertainties as a result of the injury he sustained on 14^th January, 2017 while working for the defendant.

The claimant filed along with the complaint his witness statement on oath and that of one Christopher Kalu.

The defendant filed his statement of defence in this suit on the 5^th October, 2017. Along with the witness statement on oath of one Mrs. Ebubechukwu Ogochukwu (the Managing Director) of the defendant and that of Nwokpo Samuel Kanayo a supervisor at the defenant’s factory from 21^st December, 2016 to 31^st January, 2017.

The claimant also filed a reply to the defendant’s statement of defence on the 20^th October, 2017.

Hearing in this Suit commenced on the 21^st November, 2018. The claimant Ojike Daniel testified as CW1. The following Exhibits were tendered through him

Exhibit C1 to Exhibit C14 the various receipt for drugs payment.

Exhibit C15 to Exhibit C27 the prescription forms for the drugs.

Exhibit C28 to Exhibit C44, the printout for payment for the drugs.

Exhibit C45 is the medical report dated 31^st July, 2017.

Exhibit C46 is solicitors letter of Demand for payment of Damages to Daniel Ojike

Exhibit C47 is the defendant solicitors reply to the claimant solicitors letter of demand; it is dated 22^nd May, 2017.

Exhibit C48 “a” “b” “c” are photo capture of the claimant while on hospital bed.

The claimant also called one Christopher Kalu who testified as CW2

The claimant closed his case on the 12^th February, 2018. The defendant opened his case on the 8^th March, 2018. The Supervisor of the defendant one Nwokpo Samuel Kanayo testified as DW1. He adopted his witness deposition. The Managing Director of the defendant also testified as DW2. She adopted her witness deposition and tendered Exhibits 49 a, b, c, d, e, f, and g in evidence ie. The receipt of drugs purchase for the claimant by the defendant. The defendant closed their case on the 8^th March, 2018. The suit was adjourned to the 2^nd May, 2018 for the adoption of written addressed. Counsel adopted their written address on the 2^nd May, 2018.

The case of the claimant is that the defendant hired him and 2 other persons to work in her bread factory for one month from 22^nd December, 2016 to 21^st January, 2017 it was agreed that he would be paid N27,000.00 and be fed and provided with accommodation. That while he was mining the milling machine even though he is not a professional baker on the directive of the defendant supervisor, he inserted his hands in the milling machine to check how the milled flour had creamed and was injured on the 14^th January, 2017.

That the injury was caused because the defendant failed to provide him with safe working tools in breach of the defendants duty of care. That he expended money in his treatment and was abandoned by the defendant after he was taken to the hospital by a staff of the defendant. The claimant claims his salaries, his medical expenses and particularized same in paragraph 38 of the statement of facts. He also claims damages in the sum of N20 million for partial permanent disability following the amputation of two of his right fingers.

The defendant denies liability to the claimant and contends that the claimant was employed through one Ola lateef as a table worker and not as an operator of the milling machine which requires a skillful person. That the injury sustained by the claimant was as a result of his negligence when in disregard of the directive of the supervisor, he sneaked into the milling room when the miller on duty on the 14^th January, 2017, one Mr. Tochukwu had gone to keep the already milled dough on the table, and operated the milling machine, and in the process curiously inserted his hands in the machine and got injured. The defendant also argues that he had provided all safety tools required for table workers which the claimant was one. That he had paid part of the claimant’s salary to one Ola Lateef. It is also his defence that the defend was employed from 21st December, 2016 to 5^th January, 2017 and that when the accident occurred on the 14^th January, 2017 the claimant was no long in the employment of the defendant.

The defendant counsel in his written address formulated two issues for determination which are

Whether the claimant could be said to be an employee or in the employment of the defendant as at 14^th January, 2017 when the claimant employment with the defendant ended on 5^th January, 2017.

Whether the claimant is entitled to compensation for the injury he sustained on 14^th January, 2017 when he ventured into the milling machine while the miller on duty one Tochukwu went to keep the milled dough on the table for the workers.

The claimant also formulated a sole issue for determination ie

Whether by the pleadings and evidence adduced at the trial the claimant did not make out a case to entitle him to the reliefs he seeks as per his claims.

This court considers that the issue for determination that would address the issues formulated by both parties is

“Whether in the circumstances of this case the injury sustained by the claimant on the 14^th January, 2017 was caused by a breach of any duty owed the claimant by the defendant as his worker as at the 14^th January, 2017”.

First the defendant contends through the evidence of DW2 that the claimant was employed through one Mr. Ola Lateef as table worker from 17^th December, 2016 to 5^th January, 2017 that the contract ended on the 5^th January, 2017 the terms of the claimant engagement was entered into by Mr. Ola Lateef with the defendant. It is also in evidence that the claimant and the 3 other workers were not there when the defendant negotiated with Ola Lateef. Also they were to have I meal per day at the cost of N200 as agreed from 22^nd December, 2016 till 7^th January, 2017 as stated by DW2 in paragraph 9 of his witness deposition.

The question is if the contract of employment ended on 5^th January, 2017. Why did the defendant continue to feed the claimant and the other workers up to the 7^th January, 2017. The terms of the contract was discussed with Ola Lateef in the absence of the claimant but the defendant failed to call the said Ola Lateef as a witness which would have given evidence as to what terms he agreed to on behalf of the claimant. I agree with the claimant counsel that though a party is not bound to call a particular witness on his behalf, however where the evidence of a witness is very critical as in this case to the determination of the issue in contention the failure to call that witness by the defendant in this matter would raise the presumption in S. 167d of the Evidence Act that “evidence which could be and is not produced would if produced be unfavourable to the person who withholds it”. See Olusanya V. Osineye [2013] LPELR 20641 (SC) at p.18. paras D. It was the defendant who asserted that he discussed the terms with Ola Lateef, the burden by S.131 of the Evidence Act lies on the defendant to prove the assertion he alleged. See Argungu & Anor V. Argungu & Ors. [2008] LPELR 4275.

CW2 gave evidence in his witness statement on oath; that when the claimant was injured on the 14^th January, 2017, work stopped temporary at the defendant factory. He also testified that when he was done with work on 21^st January, 2017, on the morning of 22^nd January, 2017 he went to stay with the claimant in the hospital. (see paragraph 16 to 18, 25 of the CW1 evidence on oath) These pieces of evidence was never contradicted through cross examination. The law is that once facts and evidence pleaded is not challenged or controverted by the party against whom they are pleaded or averred they are deemed as true. See Ezenwafor V. COP [2009] LPELR – 4004. See also Lawal V. UTC Nig Plc. [2005] 13 NWLR (pt. 943) p.601. This court cannot belief the story of the defendant that the employment of the claimant ended on the 5^th January, 2017 before the claimant was injured on the 14^th January, 2017. This court there for holds that the claimant was still in employment of the defendant when the injury occurred on the 14^th January, 2017.

This leads us to the next issue whether there was a duty of care owed to the claimant on the 14^th January, 2017 when he was injured.

The position of the law as regards this issue is as stated in section 23 of the Factories Act which provides:

No person shall be employed at any machine or in any process being a machine or process liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed and

Has received sufficient training to work at the machine or in the process

Is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process.

The claimant testified that when he and the 2 other workers brought by Ola Lateef to assumed work in the defendant bread factory on the 22^nd December, 2016, it was the express instruction of the Managing Director of the defendant that they had no specific job description but were to obey whatever instruction the Supervisor gave to them, and to perform whatever assignment each and every one of them were given. That any one of them could be assigned to man the oven, the milling machine, or knead the flour. He also testified that he was not given any manual on how to operate the machine in the factory or instruction on how to operate the machinery. That he was told to watch the Supervisor and any other person older than the claimant and do as he was directed. He testified that on the 14^th January, 2017, the Supervisor instructed the claimant to man the milling machine alone. That it was while he was manning the milling machine as was directed that he put his hand to check how the flour had creamed that the machine crushed his finger in the process as shown on Exhibit C 47a to C (the photographs). He also tendered the medical report admitted as Exhibit C 45.

During cross examination he said he worked on the milling machine everyday and that he could not remember how many times. If the claimant had been manning the milling machine everyday and was not injured until the 14^th January, 2017, this is where I find the conduct of the claimant on the 14^th January, 2017 to be very negligent when he inserted his bare and unprotected fingers into a spinning milling machine. On the other hand the defendant testified that the claimant and the other two workers were employed as table workers and that he provided the safety tools needed for table workers. It is his case that on the 14^th January, 2017 there was a miller by name Tochukwu who was on duty manning the milling machine. That it was when he had gone to put the dough he had milled on the table for the table workers that the claimant curiously inserted his hands in the machine and was injured. Also CW1 during cross examination testified that they had a supervisor by name Mr. Sam. It is also not in dispute that DW2 Ebubechukwu Ogochukwu was not present when the incident occurred. She admitted she was in the office when the injury occurred. Also DW1 Nwokpo Samuel Kanayo during cross examination admitted that he worked for the defendant for one week in December 2016 and left on the 31^st December, 2016. He also admitted during cross examination that he did not witness anything that happened after he had left. DW2 also testified that he had other workers in the factory when the claimant and the 2 other persons joined the defendant.

The defendant in the course of the trial did not call Mr. Tochukwu the miller he alleged was on duty on the 14^th January, 2017 to confirm what happened on the said date. Also no other worker of the defendant who was on duty on the said date amongs the workers in milling department, baking department and table workers were called to testify about what happened on the said date. The testimony of Tochukwu is very vital to the issue in contention. It was the duty of the defendant to bring Tochukwu who is still in the employ of the defendant to testify in compliance with S. 131 of the Evidence Act. The failure of the defendant to bring these witnesses to establish the facts which they asserts leaves this court with no other option than to invoke the presumption in S.167 (d) of the Evidence Act.

Furthermore there is no evidence given by the defendant that on the said date ie the 14^th January, 2017 there was a supervisor on ground to supervise the work of the claimant and other staff. The law is that the claimant who had testified that he is an unprofessional baker ought to have worked under adequate supervision by a person who has a thorough knowledge and experience of the machine or process. This, the defendant failed to provide. DW2 admitted this much when during cross examination he stated that Ola Lateef was to be the Supervisor for that period. But when he came he said he could not work and had to leave. It does appear that the claimant were left without supervision until DW1 came to work for 7 days and left on the 31^st December, 2016. The story that the claimant sneaked into the milling room when the miller had gone to give the milled dough to the table workers and curiously inserted his hands into the machine is unbelievable. An adult of the age of the claimant cannot be attributed with such childish behavior.

On the strength of the above analysis, I am satisfied that there was a duty of care owed the claimant by the defendant on the 14^th January, 2017 and there was a breach of that duty on the part of the defendant. The defendant was negligent in failing to provide supervision for the claimant on the 14^th January, 2017. However be this as it may as I have earlier noted the action of the claimant in this suit also depicts some level of contributory negligence. It is the evidence of the claimant CW1 and CW2 that the claimant had been operating the milling machine on daily basis before the incident of 14^th January, 2017. He testified that it was when he inserted his hands into the spinning milling machine to see how the flour had creamed that, the milling machine injured his hands. The question is how was he able to operate the milling machine for all the days he said he had been operating the milling machine before the 14^th January, 2017 without getting injured. While it is trite that an employer who knows the skill and experience of his employee at the time of his employment is not at common law entitled to expect or require from the employee a higher measure of skill or knowledge, there is a duty imposed on the employee to exercise reasonable care and skill at his work. The evidence before this court is not that the milling machine malfunctioned and cause injury to the claimant. Rather the evidence is that the claimant inserted his bare and unprotected hand into the spinning milling machine and in the process was injured. This action of claimant depicts negligence and failure to exercise reasonable care and skill while at work. This will affect the quantum of damages awarded under the circumstances.

In view of the above it is the decision of this court that relieves No 1 and 2 succeeds. On Relieve No 4. this court hereby taking cognizance of the claimant negligence awards the sum of N1,000,000.00 only in favour of the claimant as damages for permanent partial disability and disfigurement of the right limp of the claimant while working for the defendant on the 14^th January, 2017.

On Relief No. 3. The claimant also claims the sum of N529,906.47k as special damages.

The claimant testified that when he met the defendant managing director on the 22^nd December, 2016 he was informed that his wage was N27,000.00 for the one month he was to work for the defendant that he was to be fed 3 times in a day. He testified that 7 days before he was due to end his work with the defendant in her factory and be paid his wage, he sustained injury on the 14^th January, 2017. That the defendant had not paid the said wages, he testified that his solicitors demanded the money via Exhibit C 46 (ie solicitors letter dated 10^th April, 2017). The defendant testified that the sum of N40,000.00 was paid through Ola Lateef. That he paid the sum of N10,000.00 in piece meal to the 3 workers including the claimant.

There is no evidence of how much from the said N10,000.00 was paid to the claimant. Also there is no proof before the court of how the sum of N35,000.00 was paid to Ola-Lateef which the defendant said he paid via a bank transfer. During cross examination DW1 during cross examination stated that the claimant and other workers were to share the accumulated money on the bags of flour milled at N1,000.00 per bag, but when asked whether he had paid the claimant he said he did not. That the claimant refused to accept the pay. He stated that he cannot even remember what the claimant was entitled to. These pieces of evidence are clear admissions that the defendant did not remunerate the claimant for the one month he worked for the defendant. The allegation that he paid part of the claimant wage to Ola-Lateef is unsubstantiated. The defendant ought to have produced evidence of such payment or call Ola-Lateef as witness to establish that assertion.

There is a duty imposed by section 14 of the Labour Act on an employer to pay salaries and wages at the end of the month after the worker must have discharged his or her own obligation to the employer.

The employer cannot be said to discharge this duty by making payment to a third part without the consent of the employee and without any proof of such payment as in this present case. I therefore hold that the claimant has been able to proof his entitlement to the sum of N27,000.00 as salary for the one month he worked for the defendant from 22^nd December, 2016 to 21^st January, 2017.

Furthermore the claimant claims medical expenses incurred while in the hospital. CW1 the claimant led evidence in paragraph 37 of his witness deposition giving the particulars as:

My main hospital Bills N322,061.47

My expenses in buying drugs N63,255.00

My feeding expenses at the hospital from February 28, 2017 – June 19, 2017; and June 27, 2017 – July 24, 2017 at the rate of N00 per day – Totaling N105,000.00

My feeding money from December 24, 2016 – January 13, 2017 N12,630.00

In proof of item “a” and “b” the claimant tendered Exhibits C1 to C14, he also tendered Exhibits C28 to Exhibits C42, he also tendered Exhibits C43 to Exhibits C44. These are the receipts evidencing the various payments for drugs and other payment with the name of the claimant Daniel Ojike on them. The total figure representing the value of money spent on the receipt is N358,839.47k. The Exhibits tendered in proof of the above figure was never controvered, rather the defendant only testified that they spent the sum of N3,500 at the Clinic for the tetanus injection administered on the claimant. The law is that special damages must be strictly proved. In Mantec Water Treatment Nig. Ltd. V. Petroleum (special) Trust Fund [2007] LPELR 9030, the court emphasized this in the following words –

The Law, I think it goes without saying, is whoever wants special damages must endeavour to prove it strictly and specifically. There must be evidence in court to establish clearly that he suffered such damages as he claimed.

See also Egom & Ors. V. Eno & Ors. [2007] LPELR – 3958.

Though on these two head of claims considered here, the claimant claimed in total the sum of N385,276.47k. The law as stated by the Supreme Court in MBA ORIE & Anor V. Okpan Uba & Anor [1976] LPELR – 2761 (SC) is

“it is settled rule of law and practice that a party is entitled to judgment for any part of his claim proved to the satisfaction of the court”.

Obaseki JSC at P.9 paras. F-G)

I am satisfied that the claimant has been able to proof his entitlement to the sum of N358,839.47K. judgment is hereby entered in the above sum against the defendant in favour of the claimant.

Regarding head “c” and “d” in the particulars of special damages. No evidence was placed before this court to establish that the claimant expended N105,000.00 as feeding expenses from 28^th February, 2017 to 19^th June, 2017 and 27^th June, 2017 to 24^th July, 2017 at the rate of N750.00 per day. Also the expenditure of N12,630.00 as feeding from 24^th December, 2016 to 13^th January, 2017 has not also been proved. There is no evidence establishing the agreement to feed the claimant by the defendant as claimed. This agreement was alleged to have been entered into by Ola Lateef who was never called as a witness to proof what terms he actually entered into with the defendant on behalf of the claimant. This items or head of special damages was never strictly proved in accordance with the requirement of the law. See Mantec Water Treatment (Nig) Ltd. V. Petroleum (special) Trust Fund “supra”

In the light of the above authority these head of claim fails and are hereby dismissed.

On the whole this suit succeeds in part. The court hereby entered judgment in favour of the claimant against the defendant in the following terms:

It is hereby declared that the defendant owed the claimant a duty of care to provide adequate supervision to the claimant and the breach of that duty the claimant sustained injury leading to permanent partial disability of the hand of the claimant.

The claimant is entitled to compensation/damages for the permanent partial disability and disfigurement as a result of the injury he suffered on 14^th January, 2017.

The court hereby awards the sum of N1,000,000.00 as general damages for the injury suffered by the claimant on the 14^th January, 2017 while working in the factory of the defendant.
The court awards the sum of N27,000.00 being the salary earned by the claimant for 1 month while in the service of the defendant from 22^nd December, 2016 to 21^st January, 2017.

The defendant shall pay the sum of N358,839,47k being special damages incurred by the claimant as a result of the injury sustained on the 14^th January, 2017 while working for the defendant.