IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 4TH APRIL, 2019 SUIT NO. NICN/AK/46/2014
BETWEEN
MR. AYO GODWIN …………………… CLAIMANT
AND
1. ANTHONY ROCKS LIMITED
2. FRIDAY AJANAKU ……………………..DEFENDANTS
REPRESENTATION:
R.O Ashava for the Claimant
S.K. Mokidi with Ayodele Ejemi for the Defendants
JUDGMENT
By a General form of Complaint filed on the 27th October, 2014, the claimant is seeking the following reliefs against the defendants as follows:
The Sum of One Hundred Million Naira(N100,000,000.00) being general damages for injuries caused to the claimant by the 1st defendant in course of the claimant employment with the 1st defendant which injuries now permanently deformed and incapacitated Claimant.
The sum of One Hundred and Eleven Thousand, Four Hundred and Fifty Naira (N111,450,00) being special damages suffered by the claimant in the course of Claimant’s treatment of himself of the injuries suffered by the claimant aforesaid while in 1st defendant’s employ.
The sum of N175,000.00 being arrears of unpaid salaries to the Claimant by 1st defendant
10% Monthly interest of the judgment sum from the date of judgment to the final liquidation of same.
It is the case of the Claimant by his sworn deposition which is in tandem with his pleadings that he was an employee of the 1st defendant at its branch at Sasaro as Machinery/Crusher Helper with the responsibility to monitor the 1st defendant’s Machinery Crusher during operation and to clear off any obstructive object from the Conveyor belt of the Machinery/Crusher. That the Machinery/Crusher was operated by the 2nd defendant (who is also an employee of the 1st defendant) at an operator room apartment at the topmost part of the Machinery/Crusher above ground level. On the 25th September 2012, in the course of their lawful duties, while the 2nd defendant and himself were working on the Machine, the 2nd defendant started the Machine/Crusher whilst he was underneath same clearing off rocks that obstructed the Conveyor belt, the Conveyor belt rolled and dragged/pulled, squeezed him and severely injured and maimed him, that his right earlobe/external ear and his entire right hand from his shoulder down to his fingertips, head, neck, back and abdomen were injured. That the 1st defendant owes him a duty of care against the injury he sustained and consequentially in breach of that duty. That he was taken to Alafia Hospital, Igarra by the 1st defendant’s Manager, for treatment and thereafter transferred to Fate Medical Centre, Auchi where he stayed for several months but owing to the deplorable condition of his health, he was later hospitalized at the University of Benin Teaching Hospital (U.B.T.H), Benin City. It is his further averment that he and the 1st defendant paid the hospital expenses at Alafia Hospital and Fate Medical Centre while he alone paid that of U.B.T.H. That the 1st defendant offered to pay him N1, 000,000.00 (One million Naira) compensation which he rejected as inconsequential and infinitesimal to the damage he suffered and incapacitation. He averred further that the accident was as a result of the defendants’ negligent as he was only supplied with a pair of rain boot and rain coat for protection against rain and flood. That the 1st defendant is owing him the sum of Fifty Thousand Naira being salaries for the month of November and December 2012 and One Hundred and Twenty-Five Thousand Naira (N125,000) being unpaid salaries for five (5) months (August-December 2013) which the 1st defendant stopped to pay because of his solicitors’ letter of demand. The claimant sought for special damages which were particularized as follows:
1.Drugs purchased for treatment- N 57,650.00
2.Amount spent on transportation to and fro
Benin City- N 20,000.00
3.Amount spent on treatment at UBTH Benin City- N 31,400.00
4.Amount spent on transportation to and from Auchi- N 2,400.00
Total- N111,450.00
The Defendants in their joint Further Amended Statement of Defence averred that two crusher attendants were assigned to clear or remove any obstructive materials on the conveyor or its belt with piece of wood provided and under no condition were they permitted to use their hands to do so or go under the conveyor, be on the conveyor belt or lean on it to remove any obstructive material but must wait for the belt to stop rotating. That the workers were provided with safety kits, adequately trained on how to handle machineries and to observe safety regulations of the company in carrying out their duties. They stated further that claimant did not indicate to the 2nd defendant or called his attention to stop the crusher as alleged and that no rock fell off the conveyor belt and landed underneath it as it is the operator that normally notices any obstruction and stop the machine on his own, which the 2nd defendant had done and did not switch it on before the accident occurred otherwise, that the claimant would not have been alive to tell the story. They stated that the claimant’s hearing ability is not impaired and that he did not suffer a total or any paralysis of his right hand to his fingertips as alleged and had recovered from the body pains before he was discharged from the hospital.
As to the alleged claimant’s inability to take care of his family, it is the averment of the defendants that the claimant chose not to do so as he is currently a commercial motorcyclist and was also offered to be deplored to the 1st defendant’s security unit pending his full recovery but refused to accept it. In addition, that the 1st defendant was responsible for the payment of claimant’s medical bills and transportation cost at UBTH, Benin as he was paid Fifteen Thousand Naira (N15,000.00) as expenses for the treatment and that the failure of the claimant to produce medical report of the treatment led to the filing of a motion dated 2/2/2015 for him to submit himself for medical examination in a government hospital or produce the report from UBTH. More so, that the purported medical report dated 13/5/2013 was procured by claimant for the purpose of this case as he was admitted on 25/9/2012 and discharged on 24/10/2012 and given excuse duty for 30 days. That the claimant was being paid his wages till August, 2013 even when he failed to report for duties after 30 days excuse duty but was stopped when the 1st defendant received a demand letter from his solicitors. The 1st defendant stated that it did not offer One Million Naira (N1, 000,000.00) as alleged to the claimant but considered to compensate him to the tune of Eight Hundred Thousand Naira Only (N800,000.00) since the insurers offered to pay Seven Hundred and Eighty-Five Thousand, Seven Hundred and Three Naira, Twenty-Nine Kobo( N785,703.29) and not because it accepted liability for the accident. The 1st defendant finally contended that by the provisions of the Workmen Compensation Act, the claimant is not entitled to reliefs claimed including the alleged unpaid salary for the months of August to December, 2013, the Court is therefore urged to dismiss the suit in its entirety.
At trial, the Claimant testified for himself as CW1, also through One Kehinde Isaac (CW2) , Monday Musa Thank God (CW3) Dr. Oyakhilome Odioh (CW4). They all adopted their sworn depositions on oath as their evidence in this case. CW1 also tendered some documents which were admitted in evidence and marked Exhibit A-A5. One Mr. Bamidele Samson (DW1) and Friday Ajanaku (DW2) respectively, testified for the defendants and also tendered some documents which were admitted in evidence and marked Exhibit B-B5
At the close of trial, in compliance with Order 45 of the Court Rules, parties caused their final written addresses to be filed, the defendants filed theirs on the 3rd October 2018 and canvassed two issues for the determination of the Court, the Claimant also filed on the 26th November 2018 and formulated two issues; salient part of which would be discussed in the course of this judgment.
In the resolution of the grouse of the claimant in this case the Court will adopt the issues formulated by the defendants, this is because the issues as adopted by the claimant reflect the crux of this case, the answer to which in my calm view encapsulates the substratum of this case. They are viz-
Whether having regard to the pleadings and evidence, the claimant has established a case of negligence against the defendants.
Whether having regards to the evidence adduced, the claimant is entitled to the reliefs claimed, and if so what is the extent of such entitlement.
Before delving into the issues, it is pertinent to discuss some preliminary questions raised by learned counsel in their written submissions. It is the contention of learned defence counsel that the statement on oath dated 9th March, 2017 is incurably defective and therefore cannot constitute evidence before this Court. He continued that the statement on oath failed to conform with the mandatory requirements of Section 117(1) of the Evidence Act 2011 as to full name, the trade/profession, residence and nationality of the deponent and the fact that he is the one deposing to the facts on oath, hence the defect is intrinsic and goes to the root of the statement on oath and therefore cannot be cured. Learned Claimant Counsel on the other hand responded that the statement on oath is not incurably defective at law, that the oath indirectly or impliedly stated the full name of the Claimant in its heading; he continued that the reference to the claimant in that heading is reference to the person who the claimant is which is Mr. Ayo Godwin, that he (the claimant) even wrote his name at the foot of the statement on oath as its deponent, he argued further that the omission was not detected owing to human facility, imperfection or pressure of work unavoidably incidental to the conduct of human affairs but the error does not invalidate the statement on oath being that the defendant did not object to the Claimant’s motion dated 28th June 2016 and filed 1st September 2016 for an order extending the time which the claimant will file the consequential amended reply to 1st and 2nd defendants’ further amended joint statement of defence when the said motion was granted on 8th March 2017, as such the attack on the claimant’s statement on oath is an afterthought, also that the defendants have waived any right to challenge the statement on oath since they did not object to the statement on oath throughout the trial and chose to allow it pass as a valid process until the close of the parties’ respective cases, they are thus estopped from raising the objection at this stage, learned Claimant’s counsel added that the objection of the defence counsel amount to technicality that the current law is that the era of technicality is over , he relied on the case of Tsokwa Motors v. UBA [2008] 156 LRCN 1 at 25, Section 113 of Evidence Act 2011, he then concluded that the claimant signed/wrote his name at the foot of the statement on oath as the deponent and also that a look at the foot of the statement on oath discloses that it was sworn before the Commissioner for Oaths of the National Industrial Court Registry Akure.
The position of the law as to the status of witness statement on oath under the regime of frontloading of evidence is that it is replica of oral testimony/evidence in chief of the party who deposed to same. It is a notorious fact that the statement on oath (deposition) is usually adopted as evidence in chief while the witness is cross-examined to test his veracity and the Court would adopt same as his evidence in chief, the Court will usually only act on such evidence if it is found cogent, credible and reliable upon proper evaluation. By the case law authority of Enyi v. Prodeco Int’l Ltd [2018] LPELR-44690CA; the statement on oath of a witness becomes his evidence-in-chief only when it is adopted in Court by the said witness duly sworn in Court. This was equally captured by the Court in Akpokeniovo v. Agas [2004] 10 NWLR (pt.881) page 394; Funtua v. Tijajani [2011] 7 NWLR (Pt1245) 130, Aregbesola v. Oyinlola (No.2) (2011) All FWLR (507) 1292 @1413F-H; and N.N S.C v. E.S.V [1990] 7 NWLR (Pt.164) P. 526. It is germane to stress that the act of swearing to the truth of the statement that makes a statement on oath and thus a written statement or document lacking the words of swearing is only a piece of paper or a statement simplicter and not a statement on oath as required by law, See Maraya Plastic v. Inland Bank Plc [2002] 7 NWLR (Pt 765) P.109 at 120.
I have examined the Claimant’s statement on oath filed on the 9th March, 2017 and adopted as his evidence on the 5th February 2018 read thus:
That I was not employee at will of the 1st defendant, I never voluntarily withdrew my services from 1st defendant but was frustrated….”
It is needful to state that the claimant in his sworn deposition filed on 27th of October, 2014 and adopted also on the 5th of February 2018 when he testified that-
1 Ayo Godwin, Male, adult, Christian, Nigeria Citizen of Sasaoro doth (sic) depose on oath and states as follows…”
It is however, the contention of the defendants that the introductory clause of the claimant does not conform with the mandatory requirements of Section 117(1) of the Evidence Act 2011 as to full name, the trade/profession, residence and nationality of the deponent. For clarity purposes, it is imperative to reproduce the provisions of Section117 (1) of Evidence Act thus:
Every affidavit taken in a cause or matter shall:
Be headed in the Court and in cause or matter;
State the full name, trade or profession, residence and nationality of the deponent; and
Be in the first person, and divided into convenient paragraphs number consecutively.
From the above stated supra, it is evident that the form and content of an affidavit should reflect paragraphs (a) to (c) of subsection 1 of Section 117 of the Evidence Act. The defendants’ grouse however, is that the introductory clause of the claimant’s deposition fell short of his trade or profession and nationality. I have to peruse all the affidavits deposed to by the claimant on record and it is found that the claimant in all his depositions except his affidavit of 27th March, 2017 which is his testimony in support of his reply that was without the introductory clause. Before going on, I will like to give a brief insight into what a written witness statement on oath is, a witness statement on oath is the testimony of a witness, reduced into writing, usually on paper. The evidence in the statement on oath is what supports the pleadings. It is usually sworn to before a commissioner for oaths. It is apposite here to state that witness statement on oath was introduced to replace oral evidence-in-chief under the new regime of frontloading, instead of the witness giving viva voce evidence in chief after being administered with oath and led by counsel in Court, that evidence is instead reduced into writing and sworn to before the commissioner for oaths. This testimony in written form is what is referred to as the “Witness Statement on Oath” It is noteworthy that the claimant at trial was administered with the oath, wherein he mentioned his name as stated on record, he equally stated his address before he adopted his sworn statement of both the 27th of October, 2014 and 9th March, 2017 respectively. There is nothing on record at that to suggest to the defendants or even the Court that this process was short of the claimant’s written sworn statement. The law is as captured in the case law authorities cited supra in this judgment that what constitute the act of swearing to the truth of the statement that makes a statement on oath. It is equally trite to state that the adoption of the written deposition in Court constitutes his testimony in chief. What more, the claimant’s statement on oath of 9th March, 2017, has clearly written at the bottom of it that it was sworn to at the Registry of this Court and deposed to by “Godwin” as the deponent. In the same vein, the provisions of Section 113 of Evidence Act, 2011 permits that an affidavit can be used notwithstanding that it is defective if the Court is satisfied that it has been sworn before a person duly authorized, see the case of Yusuf v. Obasanjo [2003] 16 NWLR (Pt.847) 554 at 108 610. I find from all stated in this judgment that failure to insert the trade/profession, residence and nationality of the deponent on the written statement on oath of the claimant dated 9th March, 2017 has not occasioned any miscarriage of justice. After all, the claimant still swore on oath in this Court as administered to him by the Clerk of the Court and in line with Order 40 Rule 12 of the National Industrial Court Rules 2017 before he confirmed and adopted the written statement as his evidence-in-chief and was duly cross-examined as stated supra. Any such omission therefore can at best be seen as a mere irregularity in form. The claimant also in compliance with Section 6 of the Oaths Act, Cap O1, LFN 2007, stated on his deposition in contention, the date of swearing and the Commissioner of oath before whom it was sworn was duly stated and both the Commissioner and the deponent signed accordingly. The above position of the Court is further strengthened by the provision of Section 4(2) and (3) of the Oaths Act, which states that :“No irregularity in the form in which an oath or affirmation is administered or taken shall;(a) invalidate the performance of official duties; or (b) invalidate the proceedings of the Court; or (c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings, (3) the failure to take an oath or make an affirmation and any irregularity as to the form of oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth, see also the cases of Uduma v. Arunsi [2012] 7 NWLR (Pt1298) P.55 at 97-98, paras G-A and Anatogu v. Iwela II [1995] 8 NWLR (Pt451)p. 547. It is in view of all stated above that I find that the omission /defect in the claimant’s written deposition on oath at best as a mere irregularity which touches on the form as opposed to the substance of the process and it does not render this entire suit incompetent. Consequently, I find no merit in the defendants’ contention against the claimant’s sworn deposition of 9th March, 2017, it is thus bound to be discountenanced and therefore discountenanced.
Next contentious issue is respecting the evidence of CW4 vis a vis exhibit A, i.e. UBTH medical report; CW4 during trial identified the document and stated that the patient (that is the claimant) lost the use of the right upper limb due to paralysis resulting from brachial plexus injury as well as loss of right outer ear (complete amputation). Learned defence counsel contended that although the defendants joined issues with the claimant on these documents, yet none of the makers of the documents were called as a witness, that the allegation of collusion between the claimant and the doctors who wrote the reports is weighty enough to have warranted calling them as witnesses so that they can be cross-examined to test their credibility and veracity. The question that then requires an answer is that must the maker of a document be called as a witness in all circumstances? differently put, must the maker of Exhibit A be called as a witness by the claimant to prove his case? The law is settled that generally a document should be tendered through its maker: vide Section 91(1) of the Evidence Act 2011. The rationale for the general rule is that the maker is the person who can normally answer questions regarding the document and so his attendance may be necessary to facilitate cross-examination. There are a number of exceptions to this general rule such as when the maker is dead or is unfit by reason of his bodily or mental condition to attend as a witness or if he is beyond the seas and it is not reasonably practicable to secure his attendance etc. In all such circumstances, a non-maker can tender a document in Court. See the case of Statoil (Nig) Ltd v. Inducon (Nig) Ltd [2014] 9 NWLR (pt1411) 56; Obembe v. Ekele [2001] 10 NWLR, PT. 722 P677 2 693-694. The import of this is that by Section 91 of the Evidence Act, supra, despite the fact that CW4 is not the maker/author of Exhibit A, same can still be tendered by him and be admissible in evidence, having laid proper foundation to satisfy the Court the reasons the maker of the document could not testify. CW4 vide paragraphs 7-9 of his sworn deposition clarified same wherein he stated that he is privy to the report ( dated 22nd July 2015) on the claimant as the Co-Consultant surgeon in the University of Benin Teaching Hospital with Dr. Moin (the consultant Orthopedic Surgeon who attended to the claimant upon his referral) that the said Dr. Moin was no longer in employ of the University of Benin Teaching Hospital and his where about is unknown as also stated on the report , and he (CW4) confirms the state of health of the claimant as stated in the medical report. That he attended to and examined the claimant as well in 2017. He stated under cross examination that the claimant was treated at the physiotherapy unit of UBTH for 2 years without any appreciable improvement when the claimant was referred to him for treatment. According to CW4, the claimant was transferred to him with all his case note, hence he had access to his medical history and thus has the capacity to tender the report. Exhibit A was issued by UBTH and signed by one Prof. Ofovwe Chairman Medical Advisory Committee/ Director Clinical Services & Training of UBTH, who also relied on claimant’s case note to issue the report. It is upon this premise that I find that the evidence of CW4 is not at variance with the medical report, i.e. exhibit A as alleged by the defendants, hence the argument of the defendants that the evidence of CW4 should be discountenance is misconceived. Accordingly, CW4’s evidence still forms part of the record as a credible, cogent and reliable one. I so hold.
Now, to the crux of the suit, the defendants gave two reasons why this Court should dismiss claimant’s case. it is the submission of Learned defence counsel argument as regards the first, that in an action of this nature which bothers on negligence, it is the duty of the claimant to prove that the act was the result of the defendants’ negligence, that the fact that the act occurred is not itself proof of negligence that the circumstances, nature and extent of the accident must be pleaded and evidence adduced thereon, he cited the case of Adetoun v. Lafarge African Plc &Anor [2018] LPELR 44733. He continued that both parties are in agreement that an accident occurred involving the claimant but the area of divergence are as regard the nature of the injury sustained and as to whether the accident occurred as a result of the negligent act of the 2nd defendant (its employee/agent). Relying on the case of Ogbori v. N.A.O.C [2011] All FWLR (Pt 577) 810, learned counsel argued that the claimant must not only assert that he suffered damages but demonstrate that the defendants owe him a duty of care which has been breached, he noted further that it is not sufficient for the claimant to make a blanket allegation of negligence against a defendant without giving full particulars of the terms of negligence, he must prove that it was the fault of the defendant that caused the actual damage, he cited the cases of Julius berger (nig.) Plc v. Ogundehin [2013] All FWLR (Pt.676) 467 CA, Fijabi Adebo Holdings Ltd v. Nigeria Bottling Co. Plc [2017] All FWLR (Pt.882) 122 H.C. Counsel concluded that the claimant has not adduced sufficient facts to establish that the defendants were negligent or breached any duty of care owed him.
Learned Claimant’s counsel on the other hand embarked on an academic exposition as to a threshold guiding principle which every Court should bear in mind in claims for compensation for personal injury suffered by an employee against an employer as settled in the Apex Court decision of Martin Usong v. Hanseatic International Ltd [2009] 175 LRCN 81 which is that in cases of personal injury of an employee, his employer apart from paying the medical bills incurred by the employee should sympathize with, be fair and pay compensation to the employee and should rather not engage the employee in litigation in order to avoid paying him compensation. Learned Counsel on whether negligence was proved against the defendants relied on the case of Ighreriniovo v. S.C.C (Nig) Ltd [2013] 224 LRCN (Pt.1) 63 at 77, he submitted that the requirement of the law of proof of negligence can only be satisfied by the pleadings and evidence of a claimant and there is just no two ways about it, the law requires that the claimant has to give the particulars of the negligence. He noted that by Paragraph 37 of the statement of fact, the claimant pleaded very clearly the duty of care which the 1st defendant breached as a result of which he suffered injuries and damages. Counsel also contended that the defendants did not furnish a reasonable defence to the allegation of negligence levied against them, this is according to him so because of the testimonies of both the 1st and 2nd defence witnesses which were totally incredible and inadmissible, that the 2nd defendant admitted under cross-examination on 28th June 2016 that he did not witness the accident hence he did not know how it happened that it was when he waited for the claimant to instruct him to start the machine and never heard from him that he went down to find out what was happening and met the claimant in the grip of the machine. In addition is the fact that the defendants did not plead that it supplied safety equipment to its employees and gave adequate training and instructions to ensure safety in the workplace.
It is apt to state at this juncture that the essential element of the Claimant’s claim and the reliefs sought before this Court bothers on the negligent act of the defendants to take adequate care of the claimant whilst in the employ of the 1st defendant, it is not in doubt that he sustained injuries while working for the 1st defendant which has now made his right hand, ear lobe permanently deformed and incapacitated. The vendans primus bothers on a breach of duty of care of the claimant by the 1st defendant which is a tortious act of negligence. It is appropriate to ask at this stage, was the claimant’s accident caused by the negligence of the defendants? There are replete statutory authorities on what the tort of negligence entails, howbeit, the Oxford Advanced Learner’s Dictionary 5th Edition as explained it to mean “lack of proper care and attention, careless behavior”, see the case of UTB v. Ozoemena [2007] All FWLR (Pt.358) 1014 @1024. In Forensic Speech, Negligence has three meanings-(a). It is a state of mind in which it is opposed to intention. (b) Careless conduct and (c) Breach of duty of care imposed by common law and statute resulting in damage to complainant. In the Black’s law Dictionary, 9th Edition at pages 1133 to 1135, twenty-nine (29) types or categories of negligence, are stated therein. At page 1133 thereof, Negligence is generally defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly or willfully disregardful of others’ rights. It is the omission to do something which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would not do. The Apex Court in Oho v. Ghanaro [2006] 10 NWLR (Pt.987) 173 has described negligence as a fluid principle which has to be applied to the most diverse conditions and problem of human life, See the case of Hay (or Bourhill) v. Young [1943] AC 92 at 107, Blyth v. Birmingham Waterworks Co. [1856] 11 Exch. 78 at 784. Furthermore, the Court of Appeal in Musa v. Nigerian Army [2016] LPELR-41595 (CA) has explained negligence as carelessness, disregard, default inadvertence, indifference, inattention, laxity, omission, oversight, shortcoming, slackness, remissness, dereliction, heedlessness, forgetfulness and thoughtlessness”, the Court noted that the term denotes culpable carelessness on a person’s part. See also the cases of Kabo Air Limited v. Mohammed [2015] 62 NLLR (Pt 220) 756 CA, Diamond Bank Plc v. Partnership Investment Co Ltd [2009] 18 NWLR (Pt 1172) 67; Okwejiminor v. Gbakeji [2008] 5 NWLR (Pt 1079) 172.
The most fundamental ingredient of tort of negligence is the breach of duty of care, which must be actionable in law and not a moral liability, and I agree with the defence that until the claimant can prove by credible evidence the actual breach of the duty of care, the action must fail, see UTB v. Ozoemena supra. The Court of Appeal in SPDC Nig Ltd v. Nwagara [2018] LPELR-43732 CA, whilst considering whether or not the appellant in that case was negligent, had recourse to the decision of the Court in the case of Omotoye v. ABC (Transport Co. Ltd) [2009] LPELR-8269(CA) where his Lordship Kekere Ekun JCA(As she then was) admirably restated the principle/basis of liability in tort of negligence thus: “In order to establish a claim for damages for negligence, the claimant must plead and prove: (A) that the defendant owed him a duty of care; (b) that the defendant failed to exercise due care; and (c) that the damages was as a result of the negligence of the defendant. The authorities are clear that a successful plea of negligence consists of proving the tripod issues of duty, breach and resultant damages. The issue of “duty of care” is synonymous with a claim in negligence, See Abubakar v. Joseph [2008] 12 NWLR (Pt 1104) 307, Iyere v. Bendel Feeds and Flour Mills Ltd [2008] 18 NWLR (Pt 119) 300, GKF Investment Nigeria Ltd v. Nigerian Telecommunications Plc [2009] 15 NW:R (Pt 1164) 344. the details of the pleading is required and it can neither be presumed or inferred; where there is no notional duty to be exercised by the defendants, negligence will have no legs to stand and any claim premised thereon will fail.
Now, an important question that requires an answer here is, whether or not the claimant has established before this Court that the defendants owed him a duty of care that was not exercised necessitating the injury he sustained? There is no doubt to the fact that the injury sustained by the claimant occurred within the premises of the 1st defendant when the claimant was working, in other words, the injury occurred at the place of work of the defendant. It is the claimant’s averment that on the 25th September 2012 while the 2nd defendant who is also an employee of the 1st defendant, was operating a machine/crusher, he was underneath same trying to clear off or remove the rock that obstructed the conveyor belt, unknowingly the conveyor belt started rolling and it then dragged, pulled and squeezed him and he sustained severe and grievous wounds, his earlobes were cut off and his entire right hand destroyed, his shoulder down to is fingertips were maimed, likewise, his neck, back and abdomen. It is the contention of the claimant vide paragraph 37 of his statement of fact that the 1st defendant failed to take reasonable care to avoid the negligent act or omission which led to the injury he suffered. The Defendants on the other hand contended that the claimant was an employee at will and that he was no longer an employee of the 1st defendant having voluntary withdrawn his services by abandoning his duties and refusing to come to work, also that all workers of the 1st defendant were adequately trained to handle machineries and provided with safety kits in order to carry out their duties under strict instruction to observe safety regulations of the company. I need to clarify a thing at this stage and that is the fact that the claimant’s claim is not under the workmen’s compensation Act as alleged by the defendant but a claim for negligence due to lack of exercise of duty of care by the 1st defendant and the 2nd defendant. It is not also, correct of the defendants to assert that claimant was an employee at will, this I must say, the defendants failed to prove. The exhibits tendered evinced that claimant was an employee of the 1st defendant, whilst the 2nd defendant is also an employee. That said, the word ‘care’ means serious attention or heed. Under the law of negligence or of obligation, it means the conduct demanded of a person in a given situation. Typically, this involves a person’s giving attention both to possible danger, mistake and pitfalls and to ways of minimizing risks, see the case of Nigerian Ports Plc v. Beecham Pharmaceutical PTE Ltd [2013] 3 NWLR (Pt 1333) 454, Yabo Air Ltd v. Mohammed [2015] 5 NWLR (Pt 1451) 38. It is trite that an employee owe their employees and clients a duty of care to exercise reasonable care and skill in rendering the services for which they are engaged. See the locus classics case of Donoghue v. Steveson [1932] AC 562, Orhue v. N.E.P.A [1998] 7 NWLR (Pt.557) 187. The Claimant in the case must prove the three conditions stated earlier in this judgment by preponderance of evidence or on balance of probabilities to succeed in an action rooted in negligence and once these requirements are satisfied, the defendant is liable in negligence. See the case of Luthansa German Airlines v. William Ballanyne [2013] 1 NWLR (Pt 1336 ; GKF Investment Nigeria Ltd v. Nigerian Telecommunications Plc [supra]. In the locus clasicus case of Mahan v. Osborne [1939] 2 KB 14, it was held that as long as there is a prove that the event happened as a result of breach of duty of care that somebody owes his neighbor and that somebody is the defendant, the claimant is entitled to damages. The law is that an employers must ensure the safety of their workers and even visitors to their premises.
It is also a trite position of the law that the scope of an employer’s duty to its employee to take reasonable care for the safety of his workman and other employee in the course of their employment, this duty extends in particular to the safety of place of work, the plant and machinery and the method and conduct of work; however it is not restricted to these matters, see the cases of Kabo Air Limited v. Mohammed [2014]LPELR-23614; Avon Crown Caps &Containers Nig. Ltd v. Bamigboye [2005] 17 NWLR (Pt 954) 275; IITA v. Amrani [1994] 3 NWLR, PT. 332, 296; Davie v. New Merton Board Mills Ltd [1958] 1 QB at 237-238, Western Nigeria Trading Co. v. Ajao [1965] All NLR 524. Now, was the claimant provided with safety /protective kits and gadget; was the crusher in a good working condition and finally did the defendant ensured the safety of the claimant at its premises whilst operating the crusher.
It is an age long principle that it is the duty of a Company at common law, not to only provide safety protective equipment to its employees but most importantly to ensure that they are used by strict order and effective supervision, see the case of Western Nigeria Trading Company Ltd v. Busari Ajao [1965] NMLR 178, also by the provisions of Section 23 of the Factory’s Act Cap F1 LFN 2007, which provides:
No person should be employed or allowed to work on any machine of process liable to cause bodily injury, unless he has been fully instructed as the dangers likely to arise in connection therewith and the precautions to be taken or observed, or must be under adequate supervisions of as person who has a thorough knowledge and experience of the machine.”
It is evident from the above highlighted provision supra that there is onerous responsibility/obligation on the employer of labour to put adequate safety measures in place to ensure protection, health and well-being of their employees in the course of their employment relationship. See Green Pack Rubber Ind. Ltd v. Ossai [2044] 2 FWLR (PT. 194) 668. CW1 stated under cross-examination that he was not given any gadget like hand cloves to clear stones or any obstruction on the conveyor belt neither was he given any wood to remove obstruction object. DW2 under cross examination stated that the manager advises them on how to use the machines and safety equipment that he stops the machine when the claimant was clearing the conveyor belt and when he was through with it he can then switch it on but on the said date of the incident he did not hear him hence he went to check only to find him hooked by the machine. The defendants vide their further amended statement of defence in paragraphs 5, 10 and 13 stated that the claimant was attached to the secondary crusher to monitor and clear off any obstructive materials on the conveyor belt/and roller. that a piece of wood was provided to remove any obstructive material on the conveyor and that the safety kits were provided for employees who were on duties including the claimant and deductions from wages were made where there was violation of the safety measures. I must state that there is nothing on record to substantiate the defendants’ assertion that the claimant was given any safety/protective gadget by the 1st defendant to work with. I say so in view of the fact at paragraph 10 of the amended statement of defence as corroborated by DW2 under oath that the claimant was only given a piece of wood to remove any obstructive object on the conveyor belt, the defendant has not established or proven that the claimant was indeed given safety equipment like hand cloves to protect his hands from getting hooked in the crusher as they want the Court to believe. Also there is no evidence canvassed to prove that the claimant was given adequate training on the removal of obstructive objects on the conveyor belt or generally on the operation of the crusher, the claimant even stated under cross examination that when the crusher is put on, he stands on the floor and watch all the conveyor belt, that he usually gives a gap between himself and the machine, and that usually the machine operator can see him when he stands outside but at times when the conveyor belt get hooked, the operator (that is the 2nd defendant) must stop the engine and he will enter the tunnel to clear the obstruction with stone and the conveyor belt will stop on its own. That on the day the said incident occurred, he asked the machine operator to switch off the engine initially whilst he was removing the stones that he got hooked in the tunnel and the machine crushed him. I find it difficult to believe the 2nd defendant’s assertion that he stopped the machine and did not switch it on. If the crusher was off as he said, the claimant would not have been hooked by it, he was hooked inside the crusher and sustained the injury because the 2nd defendant failed to switched it off completely, otherwise, how can one explain the hooking of the claimant inside a stationary machine. I wish to reiterate that I found nothing on record to evince that the 1st defendant provided the claimant with safety equipment as stated earlier or was even supervised by any supervisor, not even a picture of a staff fully kitted in the alleged provided safety gadget or the production of any of such given to the claimant was tendered in prove of their assertion. No record of a release of any safety gadgets was produced in Court. The 1st defendant on the preponderance of evidence failed, in the circumstance of this case to establish enough rebuttal to disprove negligence because no proper or adequate explanation were offered to show that the failure to provide protective gadgets and the lack of exercise of duty of care as well as adequate training to the 2nd defendant, (whose action or inaction/default the 1st defendant is responsible) and the claimant was not the direct cause of the accident and the injury the claimant sustained. The claimant in my humble view and on the balance of probabilities has established before this Court that the defendants owed him a duty of care that was not exercised necessitating the injury he sustained. After considering all the issues canvassed by parties in this matter as well as the law on this point against the facts and evidence before me, it is proper for a finding of negligence to be made against the defendant. It is in consequence, that I hold that the claimant has succeeded in making out a case of negligence causing industrial accident/injury against the defendant. I so find and hold.
The Claimant is claiming the sum of One Hundred Million Naira (N100,000,000.00) being general damages for injuries caused to him by the 1st defendant in the course of his employment. Learned defence counsel argued that it is settled law that in considering whether a claimant is entitled to damages in a case of negligence, the damages claimed must have a casual link with the breach of duty of care, he relied on the case of Fijabi Adebo Holdings Ltd v. Nigeria Bottling Co.Plc [2017] All FWLR (Pt.882) 1222 H.C, counsel also contended that there is no cogent evidence before the Court to prove the alleged breach of duty of care by the 1st and 2nd defendants, that the claimant has a duty to prove the damages he suffered that is the allegation that the entire right hand was destroyed from shoulder down to his fingertips including his head, ear, neck, back and abdomen etc. He continued that it is incumbent on the claimant to establish these allegations by credible evidence, that none of the medical reports tendered states that he suffered from any other pains or ailment that even CW4’s testimony does not indicate that he suffered from abnormal bodily condition of pain uneasiness as claimed in paragraphs 33-34 of his statement of facts. Learned defence counsel submitted further that general damages are such as the law will presume to be direct, natural or probable consequence of the action complained of, it is as such as the jury may give when the Court cannot point out any measure which they are to be accessed, except the opinion and judgment of a reasonable man. Counsel relying on the case of Ogbu v. Ozor [2017] All FWLR (Pt 906) 1521 CA; where the Court held that the object of award of damages is to give compensation to the plaintiff for damages, loss and injury suffered. Counsel then stated that in deciding the quantum of damages, the Court is to take into consideration that the 1st defendant paid the medical bills of the claimant at Alafia Clinic Igarra, Fate Medical Centre Auchi and UBTH till July 2013 before it received letter of demand from claimant’s solicitor in August 2013, counsel then submitted and concluded that the claimant has not proven his injuries and damages incurred and that on the whole, the claimant has failed to prove the damages he suffered.
Learned Claimant’s Counsel on the other hand submitted that certain admitted relevant facts need to be stated for purposes of consideration of the issue of quantum of damages, he cited the decision of the Apex Court in Eneh v. Ozor &Anor [2017] 263 LRCN 60 at 79-81. Counsel argued that by Paragraph 46 and 48 of the statement of facts, both the claimant and the 1st defendant expended at the Alafia Hospital Igarra and Fate Medical Centre Auchi, that the claimant went to the University of Benin Teaching Hospital for medical solution to his right hand without positive result but the defendants pleaded at paragraph 54 of their joint statement of defence that the 1st defendant paid the claimant’s medical bills and the transportation cost of the visit of the claimant to the UBTH Benin City. He continued that the clamant pleaded at paragraph 57 of his statement of fact that the 1st defendant offered to pay him compensation of One Million Naira (N1,000,000.00) for the injury he suffered which the claimant rejected as incapable of compensating him for his injury and the defendants too in answer to the averment pleaded at paragraph 75 of their joint statement of defence that the 1st defendant offered Eight Hundred Thousand Naira (N800,000) to the claimant which he rejected. Learned Counsel continued by raising these question, that if the claimant did not attend these hospitals particularly the UBTH and if the physiotherapy was not conducted what were the medical Bills paid meant for it. Also that if the claimant’s injuries were not severe why then did the 1st defendant offer to pay compensation for the sum of One Million Naira (N1,000,000.00) which the defendant said was N800,000.00 to the claimant and if the Claimant’s right hand was not paralyzed why did the 1st defendant deploy the claimant from the crushing machine to become a security man as the defendants pleaded at Paragraph 75 of the Statement of Defence. Counsel then concluded that from all the facts established that the claimant suffered severe injuries and thus entitled to damages.
General damages are only awarded in respect of pecuniary loss which has been sustained. It is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages, a claimant for general damages does not need to specifically plead and specially prove it by evidence. It is trite that apart from damages naturally resulting from a breach, no other form of general damages can be contemplated see the case of Nigeria Produce Marketing Board v. Adewunmi [1972] All NLR (Pt.11) 433, Gari v. Seirafia (big) Ltd [2008] 2 NWLR (Pt 1070) 1 at P.22, Para C, UBN Plc v. Ajabule [201] 18 NWLR (Pt 1278) 152. The Apex Court in Hon.Nze Herbert Osuji &Anor v. Anthony Isiocha [1989] 3 NWLR(Pt 111) 623 at 636 wherein the Court held “ On the other hand, the quantum of general damages need not be pleaded and proved; for it is the loss which flows naturally from the defendant’s act and it is generally presumed by law. Having held supra that the claimant has succeeded in establishing his case in negligence, the natural consequence of a finding of Court on Negligence is liability in damages, the claimant in this case led evidence as to the injury he sustained while working at the 1st defendant’s factory on the 25th September 2012, and this is not in contention anyway. It is on record by Exhibit A and A1 which is a letter dated 22/01/2013 from the Millennium Hospital Auchi, another letter dated 22/07/2015 from the University of Benin Teaching Hospital, Ref No: CMAC/CD/Vol 1/056 and pictorial evidence of the injury sustained by the claimant on his eye, earlobe, neck and back, that the accident left him permanently deformed, this is evinced in Exhibit A and A1; this was also corroborated by CW4 on record, that despite 2 years of physiotherapy on claimant’s right hand, his right hand from shoulder to his fingers remained maimed. By Section 13 of the National Industrial Court Act, 2006, this Court is empowered to administer both law and equity concurrently. Also by Section 19(d) of the same Act supra, the Court is also vested with authority in all other cases and where necessary to make any appropriate order, including an award of compensation or damages in any circumstance contemplated by this Act or Act of the National Assembly dealing with any matter that the Court has jurisdiction hear, in the case of Mr Kurt Severinsen v. Emerging Markets Telecommunication Service Ltd [2012] 27 NLLR (Pt 78) 374 NIC, this Court in explaining it essence, held that the jurisdiction of this Court is invoked not only for the enforcement of mere contractual rights but for preventing labor practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.
Now, the law is trite by the decision of the Apex Court in Hamza v. Kure [2010] 10 NWLR (Pt.1203) 630 SC, that in personal injury, pain, discomfort and permanent scar even though these are not qualified in monetary terms, the claimant is entitled to reasonable general damages. I find from the record before the Court that the Claimant immediately after the incident was taken to Alafia Hospital Igarra where he was treated and later on transferred to Fate Medical Centre Auchi upon the directive of the Manager of the 1st defendant factory (Mr John). His health condition began to deteriorate he was then transferred to the University of Benin Teaching Hospital (UBTH) Benin City. I observed that the claimant throughout the trial had his right hand static, he could not move it, which might be due to the wasting of the right shoulder and upper limb, inability to flex and extend the right shoulder and elbow as stated in UBTH medical report as well as the other two from Fate Medical center and millennium Hospitals. I equally observed that his right ear lobe was chopped off. It is better imagine than to experience the pain and trauma he must be going through as a result of the injury he sustained, which permanently led to the loss of his right ear lobe/external ear and paralysis of his entire right hand from his shoulder down to his fingertips as stated supra. The import of which is that he can nolonger use his right hand. His injuries are such that cannot be quantified in monetary term. The paralysis of his right hand has taken life and means of his livelihood from him. I find it so uncharitable for the 1st defendant to sit in its office and offer the claimant N800,000 which according to it is the sum the insurance Company offered it. I have also considered the expenses the defendant incurred on the claimant at Fate Clinic is N129,000.00 Claimant according to CW4 under gone physiotherapy for two years without any appreciable result to his right hand, would the sum of N129,000.00 expended on the claimant and the N800,000.00 they offered him as compensation be enough to replace his right ear lobe and right hand. My answer to this question is apparently, NO! It is in the light of all these that I am inclined to award to the Claimant the damages for the permanent loss of his right hand his right ear lobe which are the direct consequences of the industrial accident at the 1st defendant’s Company. I therefore, award the sum of N10,000,000.00[Ten million naira] as damages to the claimant, to enable him take care of his health and find a means of livelihood to sustain his medical needs and his family. I accordingly grant same to the claimant. I so hold.
Furthermore, it is the contention of the claimant that he is entitled to the sum of One Hundred and Eleven Thousand, Four Hundred and Fifty Naira (N111, 450.00) being special damages suffered by him in the course of the treatment of the injuries suffered in the 1st defendant’s employ. Learned defence Counsel submitted that special damages are such that the law will not infer from the nature of the act complained of, that it must be specifically pleaded and strictly proven, he cited the case of Andrew v. MTN (Nig) Comm. Ltd [2017] All FWLR (Pt 900) P.518 at 533, paras D, Ogbu v.Ozor [2017] All FWLR (Pt 906) 1521 at 1553, he argued that the claimant must strictly prove the losses and must establish same vide credible evidence. He continued that the sum of N111, 450.000 as special damages suffered by him in the course of treatment claimed by the claimant must be proven. His contention is that the amount allegedly spent on drugs in the sum of N31, 400 claimed by the claimant, that no prescription note was tendered by the claimant even though he was given a notice to produce same. Also, on the purported sum of N2,400 spent as transportation fare to and from Auchi that no receipt was tendered and the dates he went to Auchi were not stated, he however, argued that there is evidence that the 1st defendant paid N1000 to claimant being transport to Auchi. Further on the purported treatment at UBTH in the sum of N31,400, the claimant only tendered receipt of N10,000 for physiotherapy and another N800 for card, however the defendants averred that the claimant was paid N15,000 which he presented as cost of transportation to Benin and treatment at UBTH. Learned Counsel referring to Paragraphs 48 and 54 of the Statement of Defence and the response of the claimant in Paragraph 39 of the amended consequential reply to the statement of defence stated that there was an admission by the claimant to the sum of N15,000.00. He continued that the claimant merely wants the Court to believe that immediately he was discharged from the hospital, the 1st defendant abandoned him, which is not the position. Also there is nothing on record that he visited UBTH ten(10) times, that in view of this his claim for special damages will fail.
Learned Claimant Counsel on the other hand submitted that the claimant‘s pleading and evidence furnished outweighs that of the defendants, that on the claim for drugs, the claimant stated at paragraph 39 of his statement of fact that the purchase of the drugs were not receipted for but however tendered some receipts in the sum of N31,400.00 for various treatment services he obtained at the UBTH Benin City. He submitted relying on the legal maxim Ubi Jus Ibi Remedium that where there is a wrong there is a remedy, he cited the Supreme Court decision of Labode v. Otubu [2001] 85 LCN 771 at 802 and Aliu Bello &Ors v, Attorney General Oyo State [1986] 5 NWLR (Pt 45) 828, he concluded that the damages should be awarded in favour of the claimant for the injuries suffered owing to the 1st defendant’s negligence and breach of care of the claimant.
On what constitutes special damages, the Case of Ahmed &Ors v. CBN [2012] LPELR-9341 (SC) Fabiyi JSC defines special damages as follow: “ Special damages have been defined as those which are the actual, but not necessary result of the injury complained of, and which infact follows it as a natural and proximate consequence in that particular case that is by reason of special circumstances or condition, see Twin Coach Co v. Chance Vought Aircraft Inc. “ story 588, 163 A-2d, 278, 286. Such are damages which do not arise from the wrongful act itself, but depends on circumstances peculiar to the infliction of each respective injury. To be recoverable, they must flow directly and immediately from the breach of contract and must be reasonable foreseeable. It is trite law that special damages must be strictly proved see the cases of Agunwa v. Onukwe [1962] 1 All NLR 537, Shell B.P V. Cole [1978] 3 SC 183, W.A.E.C v. Koroye [1978] 2 S.C 45, Renolds v. Rokonoh [2005] 10 MJSC 159. The proof of which is not subjected to the claim being controverted or challenged. There is the strict proof of special damages where there is the production of receipts as evidence of payment , see the case of Universal Trust bank of Nigeria v. Fidelia Ozoemena [2007] LPELR-3414 SC. Bowen LJ in Radcliffe v. Evans [1982] 2 Q.B 524 CA at 528 posited that special damages are particular damages (beyond general damage) which result from the particular circumstances of the case, and of the claimant’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial, see also Saleh v. Bon Ltd [2006] LPELR-2991 SC, Xtoudos Services Nigeria & Anor v. Taisei (W.A) Ltd &Anor [2006] LPELR-3504) SC. Flowing from the above, the claimant by Paragraph 66 of his statement of fact particularized the special damages he is seeking thus herein reproduced:
1. Drugs purchased for treatment – N 57,650.00
2.Amount spent on transportation to and fro
Benin City- N 20,000.00
3.Amount spent on treatment at UBTH Benin City- N 31,400.00
4.Amount spent on transportation to and from Auchi- N 2,400.00
Total- N111,450.00
It is trite that the claimant has the duty to prove that he is entitled to the special damages sought above. On the claimant claim for drugs purchased for treatment, there is no evidence before the Court proving the purchase of any drug neither is there any receipt or even prescription note by a doctor of any drug, the claimant has failed to establish this claim hence his claim for the sum of N57, 650 as drugs purchased for treatment fails. Even though the claimant stated under cross-examination that he paid for all the drugs and meals at Fate Medical Centre Auchi, there is no documentary evidence to buttress that assertion, hence the veracity of his testimony cannot be assessed. It is also noteworthy that the claimant admitted under cross examination that there is no prove for the drugs purchased, and it is the law that facts already admitted need no further prove, see Onoba v. Abuja Building Products Ltd&Ors[2014] LPELR-22704 (CA). It is also on record that the 1st defendant funded part of his medical expenses at Fate Hospital. Failure of the claimant to exhibit the receipts for the sum claim, is fatal to this claim. It is against this backdrop that I find that the claimant’s claim for drug purchased for treatment in the sum of Fifty Seven Thousand, Six Hundred and Fifty Naira Only (N57,650.00) fails. On the claimant’s claim for the sum of Twenty Thousand Naira Only N20,000 on transportation to and from Benin. It is germane to state that it might be difficult/impracticable for the claimant to obtain receipts for transportation for his trips to Benin in view of the fact that except government transport, it may be difficult for a party to obtain receipts from commercial vehicles in this clime. Howbeit, the claimant ought to have given dates and number of times he made the trip to Benin. This he failed to do, by merely stating a figure before the Court as money spent on transport to Benin, cannot secure his claim. Needful to state here also that, there is no doubt the fact that claimant travel to and from Benin but in claims for special damages, claimant is bound to canvass evidence in prove of his claims. It is in view of claimant’s failure to strictly prove his claim for N20,000 transport fare to Benin, that I discountenanced same. Claimant’s claim for the sum of Twenty Thousand Naira Only N20,000 for transportation to and from Benin fails.
Next, is the claim for the amount expended on treatment at UBTH Benin City in the sum of Thirty One Thousand, Four Hundred Naira Only, the Claimant by Exhibit A3 established that he spent the sum of Eight Hundred Naira (N800) on case note for registration, Ten Thousand Naira (N10,000) on Physiotherapy on the 18th June, 2013, another N10,000 on 25th February 2014, 15th November, 2013 for another N10,000 for physiotherapy, on 27th August 2013, he expended the sum N10,000 also for physiotherapy and on 23rd July, 2013 he spent N600 respectively culminating the total spent at UBTH as N41,400 (as disclosed in Exhibit A3). On the argument of the defendants that the claimant was paid N15,000 which he presented as cost of transportation to Benin and treatment at UBTH, CW1 stated under cross-examination that the said N15,000 was given to him by the 1st defendants for upkeep and not for physiotherapy. An indepth examination of the Petty Cash Voucher (Exhibit A3) dated 11th June 2013 disclosed that the said sum of Fifteen Thousand Naira given to the claimant by the 1st defendant was for “Hospitalization, Treatment for 5 weeks”. This invariably connotes that the said sum was for treatment of the clamant and not upkeep. The import of this is that the 1st defendant has offset the claimant’s expenses at UBTH partly with the sum of N15,000, therefore the deduction of this sum from N41,400 will give an outstanding sum of N26,400. The jurisdiction of this Court is limited and circumscribed in what it can grant to the claimant as claimed, the Court may award less and not more than what is being claimed, See Ekpenyoug &Or v. Inyang Nyong &Ors [1975] 2 SC 71, 80. Thus the claimant is entitled to the sum of N26,400 as money spent at UBTH as proven vide the receipts tendered. Accordingly, I find and hold that the claimant is entitled to be paid the sum of N26,400 as amount spent on treatment at UBTH Benin City. I so hold.
On his claim for the amount spent on transportation to and from Auchi in the sum of Two Thousand Four Hundred Naira (N2,400), the claimant has also failed to prove the dates he embarked on those trips and the fact that he actually expended that said sum on the trip, however it is evident from Exhibit B2 that the 1st defendant paid the claimant the sum of One Thousand Naira on the 11th May 2012 for a trip to Auchi. Be that as it may, failure of the claimant to establish that he expended the said sum on transportation to and from Auchi is fatal, hence his claim fails.
The Claimant is also claiming the sum of One Hundred and Seventy-Five Thousand Naira (N175, 000.00) being the unpaid salary due payable to him by the 1st defendant. It is the argument of Learned Defence Counsel that the claimant pleaded the sum of Fifty Thousand Naira (N50,000) being salary arrears for the months of November and December 2012 respectively and the sum of One Hundred and Twenty-Five Naira (N125,000) being unpaid salaries for five (5) months August to December 2013, the fact that the claimant did not claim any salary for January to July 2013 is a confirmation that he was paid for those months as shown by the petty cash voucher (Exhibit B2) tendered by the defendants which the claimant signed. Learned Counsel contended further that as at August 2013, the claimant was no longer in the employ of the 1st defendant and thus was not entitled to any salary or wages. Also that there is evidence from the defendants that a relation of the claimant signed for his November and December 2012 salary, this is also evident in DW1’s sworn deposition and Exhibit B2, counsel then submitted that the claimant was paid January to July 2013 entitlement, it is illogical to say that he was not paid for November to December 2012 particularly when claimant was given excuse duty for thirty (30) days.
Learned Claimant Counsel on the other hand at Paragraph 81 of the Statement of Defence argued that the defendant pleaded that Ten Thousand Naira (N10,000) was paid twice a month to the Claimant in January-July 2012 but the petty cash voucher (Exhibit B2) dated 15/2/2013 shows the payment of Twelve Thousand Naira (N12,000) and the sum of Twelve Thousand and Five Hundred Naira (N12,500) for the 16/1/2013 and 15/2/2013 amounting to N26,500. He noted that Exhibit B2 dated 4/2/2013 shows payment of N12,500 thereby contradicting the claim of the defendants/payment of arrears of salaries. Counsel submitted that none of these payment was N10,000.00 as pleaded in paragraph 81 of the statement of Defence. That as to the assertion of the defendants in Paragraph 82 of the statement of defence that from August 2013, the clamant never showed up again in the premises of the 1st defendant and thus not entitled to be paid, Counsel questioned that how then was Exhibit B2 dated 3/8/2013 collected by the claimant and same bearing his signature.
It is a cardinal principle in world of works that an employee is entitled to wages/salaries for services rendered, conversely put, an employee is not entitled to payment for work not done. First, on the Claimant’s claim for the sum of Fifty Thousand Naira (N50,000) being salary arrears for the months of November and December 2012, it is clear from Exhibit B2 that the claimant was paid the sum of N12,500 on the 17th November 2012, Twelve Thousand, Five Hundred Naira (N12,500) on the 1st December 2012 and another Twelve Thousand, Five Hundred Naira (N12,500) on the 18th December 2012 making the sum of Thirty Seven Thousand Five Hundred (N37, 500 ), it is also clear from Exhibit B1 that the Claimant was given Excuse duty Certificate by Fate Medical Centre for one month on the 2nd November 2012 as a result of the injury he sustained. It is however glaring from the evidence stated supra that the 1st Defendant paid the Claimant for the period November to December 2012 having not worked for the said period (as disclosed in Exhibit B1) and not even entitled to salaries for the period. Consequently, the Claimant’s claim for the sum of Fifty Thousand Naira (N50,000) being salary arrears for the months of November and December 2012 fails. I so hold.
The Second leg of the claimant’s claim for the sum of One Hundred and Twenty-Five Naira (N125, 000) being unpaid salaries for five (5) months, from August to December 2013. It is clear from the record that the Claimant’s injury occurred on the 25th September 2012 and he was given Excuse from duty (Exhibit B1)on the 2nd November 2012, Claimant stated under cross-examination that he did not go back to the 1st defendant until when his lawyer served them with a letter which is on the 23rd August 2013 (Exhibit A2), 1st Defendants stated by Paragraph 2 Exhibit B5 that the claimant was its employee until the service of Exhibit A2 on them, Claimant however stated under cross-examination that he was sent away by the 1st defendant, but there is however nothing before the Court showing that the employment relationship between him and the 1st defendant had been severed. On his assertion that the 1st defendant failed to pay him his salaries, it is clear from Exhibit B2 that he was paid his salaries from February 2013 till 3rd of August 2013. In view of the fact that there is no cogent evidence that the claimant worked for the period of August to December 2013, that his claim for the sum of One Hundred and Twenty-Five Naira (N125,000) being unpaid salaries for five (5) months August to December 2013 fails. I so hold.
On Relief 4, the claimant is seeking an order directing the payment of the judgment interest on the judgment sum by the 1st defendant at the rate of 10% per month with effect from the date of judgment until the final liquidation of the debt. It is a cardinal principle of law that post-judgment interest is awarded where there is power conferred by statute on the Court to do so in exercise of Court’s discretion and it is meant to commence from the date of judgment until whole liquidation, see the case of Stabnilini Visioni Limited v. Metalum Limited [2008] NWLR (Pt 1092) 416 at 436, paras E-F. By Order 47 Rule 7 of the National Industrial Court of Nigeria 2017 provides that this Court may at a time of delivering the judgment or making the order give direction as to the period within which payment is to be made or other act is to be performed and may order interest at a rate not less than 10% per annum to be paid upon any judgment. It is in view of this that I order the 1st defendant to pay 10% interest per annum on all judgment sums after 30 days of failure of the 1st defendants to pay the claimant the judgment sums. I so find and hold.
On a whole, the claimant’s case succeeds in part and for avoidance of doubt, I declare and order as follows:
That the claimant has succeeded in making out a case of negligence causing industrial accident/injury against the defendants.
That the claimant is entitled to damages from the 1st defendant for the injuries he sustained from the machine/crusher while in the employ of the 1st defendant.
That the evidence of CW4 is not at variance with the medical report (Exhibit A)
That the claimant is entitled to the sum of Ten Million Naira only (N10,000,000.00) as general damages
That the claimant’s claim for drug purchased for treatment in the sum of Fifty Seven Thousand, Six Hundred and Fifty Naira Only (N57,650.00) fails.
That the claimant’s claim for the sum of the sum of Twenty Thousand Naira Only N20,000 on transportation to and from Benin fails.
That the claimant is entitled to the sum of twenty six thousand, Four Hundred Naira (N26,400) as amount spent on treatment at UBTH Benin City.
That the Claimant’s claim for the sum of Two Thousand Four Hundred Naira (N2,400) as amount spent on transportation to and from Auchi fails.
That Claimant’s relief 3 fails
All the judgment sums are to be paid within 30 days failing which it is to attract 10% interest per annum.
I make to Order as to Costs.
Judgment is accordingly entered.
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge
