IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS
DATE: JANUARY 25, 2018
SUIT NO: NICN/LA/459/2015
BETWEEN
Abayomi Shodiya
Claimant
AND
Metalbase Limited
Defendant
REPRESENTATION
D.P. Imhanguezogie with Nana Daniels for the Claimant.
Roli Edun with T. Teslim-Shittu for the Defendant.
JUDGMENT
- Introduction & Claims
The Claimant filed his General Form of Complaint in this case on 14/9/15 and by his amended Statement of Claim dated and filed 4/2/16 sought the following reliefs from the Court –
- The sum of =N=10,000,000.00 (Ten Million Naira) being damages for Claimant’s injury sustained from an Industrial accident at the place of work of the Defendant at KLM 5, Ofada Road, Off Lagos/Ibadan Expressway Mowe, Ogun State on the 31stday of July, 2012 resulting in the permanent loss of a right forearm and hand, near permanent incapacity and the attendant trauma and psychological effect.
- The sum of =N=100,000.00 (One Hundred Thousand Naira) being the cost of medical expenses incurred during the period of hospitalization and continuous treatment thereafter.
- An order of Court directing the Defendant to reinstate the Claimant to his position at the Defendant’s work place.
- An order of Court directing the Defendant to provide Artificial limb for the Claimant.
- An order of Court directing the Defendant to issue forthwith a Certificate of Completion of Apprenticeship to the Claimant having successfully completed the agreed period of Apprenticeship.
- Cost of this action.
The Claimant’s Form 1 was accompanied by List of Witness, Claimant’s written deposition, Verifying Affidavit, List and copies of documents to be relied on at trial.
On 7/10/15, the Defendant entered an appearance and filed its statement of defence along with witness deposition on oath, list of witness and copies of documents to be relied upon at trial.
- Case of the Claimant
The hearing of this case commenced on 6/12/16 when the Claimant testified as CW1, tendered his statement on oath dated 14/9/15 as his evidence in chief and tendered 4 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1 – Exh. C4 respectively.
The case of the Claimant as revealed from the pleadings filed is that he was at all times material a Trainee of the Defendant having being offered a three years apprenticeship trainee on 11/1/10; that he is 25 years old with work expectancy for another 35 years; that on 31/7/12, during the operation of a machine in the course of his usual employment in the Defendant’s Company, he had an industrial accident which resulted in the traumatic amputation of the forearm and hand; that he was subsequently treated at the National Orthopaedic Hospital, Igbobi, Yaba, Lagos, where it was revealed that he was permanently incapacitated; that throughout his hospitalization and treatment the Defendant showed a less enthusiastic interest in his predicament; that by reason of the accident, he is now 100% incapacitated as evidenced by the Doctor’s report; that he spent the sum of =N=100,000.00 (One Hundred Thousand Naira) for treatment at the Hospital; that sometimes in November of 2012, after he was discharged from the Hospital he resumed work but because of the incapacitation, he wasn’t able to perform optimally; that while he was receiving treatment, the Defendant promised to provide Artificial Limb for him upon resumption of work; that rather than fulfill the promise of provision of Artificial Limb; the Defendant treated him with disdain and terminated his Appointment/Apprenticeship with no compensation paid to him; that the Defendant not only terminated his appointment, but also refused to give him Certificate of Completion of training despite successfully completing the training; that the Defendant is not a contributor to the Employee’s Compensation Fund under the Employee Compensation Act, 2010; that he made a lot of entreaties to the Defendant on the need to make good his promise of providing artificial Limb and the payment of Compensation but all entreaties fell on deaf ear; that despite the entreaties made and the Solicitors’ letter to the Defendant, the Defendant still refused to pay his entitlement and this fact is causing him untold financial hardship and emotional trauma; that he cannot secure employment anymore because of his permanent incapacity resulting from the Industrial accident and that ordinarily he still has a period of not less than 35 years ahead of him to earn a living and this has become impossible because of the loss of his Right Forearm, Hand and permanent incapacity. Though afforded opportunity to do so, the Defendant did not cross examine the CW1. In much the same vein, while the Defendant was also afforded opportunity to defend this case, it did not utilise the opportunity so afforded.
- Submission on Behalf of the Claimant
At the close of trial, and pursuant to a direction of the Court, learned Counsel to the Claimant filed a 9-page final written address on 13/6/17. The Defendant did not file any written address. In the final address of the Claimant, learned Counsel set down the following lone issue for determination-
Whether the Claimant has proved his case based on balance of probabilities upon the preponderance of evidence to entitle him to Judgment.
In arguing this lone issue, learned Counsel to the Claimant submitted as a preliminary point that although the Defendant filed a statement of defence dated 4/2/16, it did not lead evidence in proof of the averment in the defence and hence the Defendant is deemed to have abandoned the defence citing Erewa v. Guffanti (Nig.) Plc (2017)2 NWLR (Pt. 1549) 223 at 248. Learned Counsel submitted that the evidence led by the Claimant remained unchallenged that he was a Trainee of the Defendant referring to Exh. C1; that his status qualified him as an employee within the meaning of Section 73 of the Employee Compensation Act citing Iyere v. Rendel Feed & Flour Mill Limited (2009)3 WRN 139 (SC). Counsel submitted that the Claimant sustained injury while working for the Defendant referring to Exh. C3 and the Medical Report Exh. C2; that the Defendant has a duty of care to its workers including the Claimant; that from the unchallenged evidence led there was a breach of that duty by the Defendant referring to the evidence in chief of the Claimant and that the right arm of the Claimant having been amputated, the Defendant is clearly liable to the Claimant in damages citing British Airways v. Atoyebi (2014)13 NWLR (Pt. 1424) 253 at 301. Learned Counsel thus submitted that based on the unchallenged evidence of the Claimant the Court should enter Judgment in his favour for all the reliefs sought in his amended statement of facts.
- Decision
The Defendant though entered an appearance and filed a statement of defence in this case, it however did not enter in to its defence. Technically therefore this case remains undefended for all intents and purposes. For it is trite and a cardinal principle of pleadings is that, it is the party’s pleadings which defines his line of evidence at the trial of an action in Court. Thus averments contained in pleadings must necessarily be supported by evidence for it to be reliable. Therefore averments in pleadings without evidence adduced thereon by the party who pleaded such facts, go to no issue. The reason being that no onus is cast on the other party, to disprove facts not established by evidence. See Majolagbe & Anor. v. Pereira (2013) LPELR-22448 (CA). See also Kate Enterprises Ltd. v. Daewoo (Nig) Ltd. (1985) 2 NWLR (Pt.5) 115; (1985) 7SC1; (1985) 2 NSCC 842; Midford Edomsowan v. Kenneth Ogbegun (1996) 2 SCNJ 21 at 33; (1996) 36 LRCN 432; (1996) 4 NWLR (Pt.442) 266; Ibrahim v. Ojomo & Ors. (2004) 11 WRN 1, (2004) 4 NWLR (Pt. 862) 89 (2004) All FWLR (Pt. 190) 285 (2004) 4 MJSC 143; (2004) 1 SCNJ 309; (2004) 1 SC (Pt. 11) and Abubakar v. Joseph & Anr. (2008) 50 WRN 1, (2008) 6 SCNJ 226; (2008) All FWLR (Pt.432) 1065. Notwithstanding the fact that the Defendant did not defend this suit, it does not confer an automatic entitlement of the Claimant to Judgment. The need for he who asserts to prove same by credible, cogent and admissible evidence is not dispensed with merely because of absence of defence.
Now, has the Claimant proved his entitlement to the reliefs sought by him in this case? The first relief sought by the Claimant is for the sum of =N=10,000,000.00 (Ten Million Naira) being damages for Claimant’s injury from an Industrial accident at the place of wok of the Defendant at KLM 5, Ofada Road, Off Lagos/Ibadan Expressway Mowe, Ogun State on the 31st day of July, 2012 resulting in the permanent loss of a right forearm and hand, near permanent incapacity and the attendant trauma and psychological effect.
In support of this head of claim, the Claimant while giving his evidence in chief testified that on 31/7/12 while operating a machine in his usual course of employment with the Defendant had an industrial accident which resulted in the decapitation of his right forearm and hand; that he was treated at the Orthopaedic Hospital, Igbobi Lagos where it was revealed that he was permanently incapacitated. These facts were not challenged at trial. Also in support of his claims the Claimant tendered Exh. C2 (Medical Report) & Exh. C3 (Photographs of the Claimant’s amputated forearm and hand). The facts of this case and the evidence led are sufficient for me to hold that the facts speak for itself. The facts revealed that the Claimant sustained severe injury in the course of his employment with the Defendant. But what is the nexus between the injury sustained by the Claimant and the Defendant apart from simply the employment relationship? It is for the Claimant to prove his case. The Defendant may even opt not to say anything or prove anything until that burden on the Claimant is discharged. Throughout the trial of this case and especially in the Claimant’s evidence in chief, the Claimant did not aver that the industrial accident in which he was involved was caused by non provision of safety gadgets by the Defendant. I have no evidence to the effect that the accident was caused by faulty or un-serviced machine or that previous complaints have been made respecting the unsafe work environment. In other words, it is for the Claimant to adduce evidence on how the Defendant his employer who owes him a duty of care breached that duty. That breach could only be established by pointing to failure of the Defendant in providing safety gadgets such as Hand Gloves and ensuring that both industrial machines are serviced and functional and work environment safe for all employees. I do not have such evidence before me in this case. I listened to the Claimant at trial. I watched his demeanor. I also saw the amputated forearm and hand of this young and promising man. Unfortunately, the position of the law does not permit the Court to act on emotions or sentiments. In Adekoye v. Adesina (2011) W.R.N 1 the Supreme Court of Nigeria per Rhodes-Vivour, JSC expressed the same position beautifully on page 42 as follows –
“Judges cannot assist a plaintiff to win his case, because cases are not decided on emotions, sentiment or some misguided consideration. Cases are won on pleaded facts supported by compelling evidence”.
The case of the Claimant must either stand or fall on the strength of the evidence led by the Claimant. Sufficiently credible and cogent evidence has not been led by the Claimant in this case. Certainly the learned Counsel could have done a lot much better. This Court is helpless in the instant case. The duty of the Court is adjudication. that of learned Counsel is advocacy. I find no proof of this head of claim. I therefore dismiss same.
The second relief is for the sum of =N=100,000.00 (One Hundred Thousand Naira) being the cost of medical expenses incurred during the period of hospitalization and continuous treatment thereafter. In paragraph 10 of his witness statement on oath, the Claimant averred that he spent the sum of =N=100,000.00 as the medical expenses incurred during the period of hospitalisation and continuous treatment thereafter. This is nothing but mere averment. For it to assist the Court the Claimant must back same up with evidence. Such evidence in the nature of receipts issued by the Hospital for payments made would certainly be handy and helpful. I find nothing as such in this case. Exh. C2 is the only exhibit from the National Orthopaedic Hospital, Igbobi. That exhibit is a medical report. It contains no information respecting any payment made by the Claimant for his treatment at that Hospital. There must be a basis upon which the Court will grant a relief. That basis is proof by cogent evidence. In the absence of such, this head of claim is liable to and it is here dismissed.
The third relief sought is for an order of Court directing the Defendant to reinstate the Claimant to his position at the Defendant’s work place. A master/servant relationship is a voluntary one. It is also contractual in nature. An essential feature of it is that the Court will not impose a willing employee on an unwilling employer. See Adewunmi v. Nigerian Eagle Flour Mills (2014) LPELR-22557(CA) The only exception here is employment with statutory flavor. See Nnadi v. National Ear Care Centre & Anor. (2014) LPELR-22910(CA). The employment of the Claimant in the instance not being one with statutory flavour, the Court cannot and will not make an order for his reinstatement. See Ativie v. kabel Metal (Nig.) Limited (2008) (Pt. 1095) 399 at 415. This head of claim is also refused and dismissed.
The Claimant also sought an order of Court directing the Defendant to provide Artificial limb for the Claimant. In his evidence in chief and specifically in paragraph 9 of his witness statement on oath, the Claimant averred that while he was receiving treatment, the Defendant promised to provide him with Artificial Limb upon resumption. Again, this is a mere averment which requires evidence for it to become reliable for purpose of adjudication. Was the promise written or verbal? There is no evidence in support of this averment. I thus refuse and dismiss this head relief accordingly.
The 5th relief of the Claimant is for an order of Court directing the Defendant to issue forthwith a Certificate of Completion of Apprenticeship to the Claimant having successfully completed the agreed period of apprenticeship. The Claimant averred in paragraph 11 of his witness statement on oath thus –
”That the Defendant not only terminated my appointment, but also refused to give me the Certificate of Completion of Training despite successfully completing the training”.
It is important for me to mention in the passing that there is no evidence before the Court pointing to termination of appointment of the Claimant by the Defendant. There is no letter of termination exhibited before me. Again, on issue of successful completion of the training, aside from Exh. C1 – Apprenticeship Agreement Form, there is nothing in evidence to support the claim of successfully completing the training. I refuse and dismiss this head of claim also. Having refused and dismissed reliefs 1-5 of the Claimant there is no basis for award of cost in his favour. I am constrained to say that the outcome of this case is rather very unfortunate. Had it been it was better handled professionally, the outcome would have no doubt been different.
Finally, for the avoidance of doubt and for all the reasons stated in this Judgment the case of the Claimant is dismissed in its entirety.
I make no order as to cost.
Judgment is entered accordingly.
____________________
Hon. Justice J. D. Peters
Presiding Judge
