IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: OCTOBER 30, 2018 SUIT NO. NICN/LA/258/2013
BETWEEN
Mr Saheed Saula – Claimant
AND
Atiku Security Company Limited – Defendant
REPRESENTATION
Felix Ayogun, for the claimant.
Ibrahim Abikan, for the defendant.
JUDGMENT
1. The claimant commenced this action by a complaint filed on 20th May 2013 and accompanied with the statement of claim, list of exhibits and a copy of the exhibit frontloaded, list of witnesses and the witness statement on oath. The suit was originally filed against two defendants. In a considered ruling on 10th December 2014 upon an application filed by the defence counsel, the name of the 2nd defendant was struck out. This necessitated an amendment of the originating processes, which amendment included the filing of an additional exhibit to the one originally frontloaded. Accordingly, by the amended statement of claim, the claimant is praying against the defendant for:
(1) A declaration that the claimant is entitled to the sum of N390,000.00 (Three Hundred and Ninety Thousand Naira), being the lawful outstanding balance from the April, 2012 to April, 2013 salaries due to him.
(2) A declaration that the claimant is entitled to an interest at the rate of 21% per annum on the of N390,000.00 (Three Hundred and Ninety Thousand Naira), from April, 2012 to April, 2013 amounting to a sum of N81,900.00 (Eighty One Thousand, Nine Hundred Naira) and 5% interest rate per annum from 1st May, 2013 until the date of judgment and thereafter at 10% per annum until the judgment debt is liquidated.
(3) A declaration that the claimant has suffered untold hardship, emotional trauma as well as rendered incapable of fending for his family owing to the decapitating injury suffered while in the defendant’s employment.
(4) An order that the defendant pay to the claimant sum of Ten Million Naira (N10,000,000.00) being general and exemplary damages against the defendant for exceptional hardship, emotional and psychological trauma the claimant passed through as a result of his permanent disability (lost a limb) while in the defendant’s employment.
(5) An order of Two Million Naira (N2,000,000.00) against the defendant as cost of this action.
(6) And for further order or orders as this Honourable Court may consider appropriate to make in the circumstance to redress the continued blatant infringement on the claimant’s rights.
2. The initial two defendants sued had entered formal appearance and filed their joint defence processes, which processes had to be amended given the filing of amended originating processes by the claimant. The sole defendant accordingly on 11th May 2015 filed its amended statement of defence, amended list of witnesses, amended written statements on oath of the witnesses, amended list of documents and copies of the documents. The defendant on 13th June 2018 applied for and got the leave of court to substitute its two witnesses with a sole witness.
3. At the trial, the claimant testified for himself as CW and tendered two exhibits: Exhibits C1 and C2. On the defendant’s behalf, Yaovi Mike Sadauna, a Structural Engineer who works as site engineer with the defendant, testified as DW and tendered Exhibits D1 to D5. At the close of trial, parties filed their respective written addresses. The defendant’s final written address was filed on 29th June 2018, while the claimant’s was field on 27th July 2018. The defendant did not file any reply on points of law.
THE CASE BEFORE THE COURT
4. The case of the claimant is that he joined the defendant as a security supervisor in the company and that his monthly salary was Thirty Thousand Naira only (N30,000). It was pleaded that while in employment as a supervisor, he was also in charge of the guards on duty, arms and ammunitions used in their security operations. It was pleaded that armed robbers came to his duty, and shot him twice at close range and as a result he sustained serious injury on the left leg, and was taken to General Hospital, Lagos Island where the leg, was amputated. The claimant pleaded that the defendant stopped his salary since April 2012; therefore, he is claiming the reliefs as contained in the amended statement of claim.
5. The case of the defendant on the other hand is that both the claimant and defendant’s Managing Director (MD) are relations and that the claimant was brought to the MD of the defendant for possible assistance and accommodation and that the claimant was/is not an employee of the defendant. It was pleaded that the MD of the defendant, one Chief Atiku Abogun, gave the claimant a room within his premises as a relation but, not as an employee to the defendant and Chief Atiku orally asked the claimant to be watching activities of the security guards and Chief gives him Ten Thousand Naira N10,000 per month as an allowance and not as a salary. It was pleaded that it was the claimant himself who brought the armed robbers into the Chief’s premises and they shot him because he gave them wrong information. It was pleaded that Chief Atiku paid all the claimant’s hospital bills. The defendant maintained that the claimant is not entitled to any of the claims as contained in the amended statement of claim or any other claim at all and urged the court to dismiss the suit.
THE SUBMISSIONS OF THE DEFENDANT
6. The defendant submitted four issues for determination:
(1) Whether the claimant is an employee to the defendant.
(2) Assuming without conceding that the claimant is an employee to the defendant, whether the letter dated 30th of September, 2005 has not put an end to his purported work.
(3) Whether the claimant is entitled to special, general and exemplary damages and cost of this action as per his amended statement of claim dated 25th of February, 2015.
(4) Whether the defendant is a juristic person who can be sued.
7. For issue (1), the defendant submitted that during the examination of CW, the witness clearly and unequivocally admitted that he did no write a letter of application, no offer letter and none was accepted. He further admitted that he had no letter of employment, letter of promotion, no pay slip and there was no terms and conditions between the claimant and the defendant. In fact, he has nothing to link him with the company. These assertions, to the defendant, are in support of the defendant’s case that the claimant is not an employee of the defendant; rather, he is a relative to the MD of the defendant who orally gave him some assignments to do and there was no employer/employee relationship between him and the defendant, citing Union Bank of Nigeria Plc v. Soares [2012] 29 NLLR (Pt. 84) 329 at 355; and Anike v. SPDCN Ltd [2012] 28 NLLR (P.t. 81) 350 at 376-377, which held that: “the law is that a contract of service cannot be presumed. The existence of contract of service between one party and the other must be proved by empirical evidence”. That in the instant case, there is no terms of the contract to bind the parties to suggest or infer the existence of the contract of employment between the claimant and the defendant; therefore, such contract cannot be presumed, urging the Court to so hold. That where the claimant failed to plead and prove the fact of his employment, such claimant is not entitled to declaration that his appointment subsists, citing NIIA v. Ayanfalu [2011] 24 NLLR (Pt. 67) 1 CA, Iyere v. Bendel Feed and Flour Mill Ltd [2009] 14 NWR (Pt. 38) 160, Yusuf v. Dornier Aviation (Nig.) Ltd [2004] 10 NWLR (Pt. 880) 1 at 14-15, Umoh v. ITGC [2001] 4 NWLR (Pt. 703) 281 at 299, Morohunfola v. Kwara State College of Technology [1990] 4 NWLR (Pt. 145) 506 and Nitel Plc v. Ocholi [2001] 10 NWLR (Pt. 720) 188. The defendant then urged the Court to hold that the claimant having clearly admitted that he had no document nor terms and conditions between him and the defendant, there was no contract of employment between the parties.
8. Regarding issue (2), the defendant submitted that at paragraph 13 of the amended statement of defence dated 11th May 2015 and at paragraph 15 of the witness written statement on oath sworn on/dated 7th June 2018, it was pleaded and the evidence was led to support the defendant’s assertion that the claimant on 30th September 2005 tendered his resignation letter dated 30/9/2005 in his own hand writing (Exhibit D5) and the same was received thereby terminating his purported employment, if any. That it was held in Oyewumi Oyetayo v. Zentih Bank Plc [2012] 29 NLLR (Pt. 84) 370 at 424 that a notice of resignation is effective from the date the said letter is received by the employer or his agent and not the date in the letter or from the date of any purported acceptance; and that the tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. Also cited is WAEC v. Oshionebo [2006] 12 NWLR (Pt. 1994) 258 CA. To the defendant, Exhibit D5 (the letter of resignation tendered by the claimant to Chief Atiku Abogun/defendant on the 30/9/2005) was received and accepted on the same day 30/9/2005 by the secretary who also acknowledged the receipt by the signing and the date on the letter, which means that from that date 30/9/2005, the defendant is no longer in the employment of Chief Atik Abogun. That even assuming the claimant insists that he had an employment relationship with the defendant, such employment automatically terminated and he ceased to be in such employment from that date (30/9/2005) when his letter of resignation was tendered and received, urging the Court to so hold. That this very important aspect of the defendant’s pleading has not been denied by the claimant who refused or failed to file reply to the statement of defence to deny this fact which mean the pleaded fact relating to the resignation letter tendered by the claimant and received has not be challenged.
9. The defendant went on that equally the evidence led by DW at paragraph 15 of the amended statement on oath dated 7th June 2018 has not been challenged, controverted or contradicted in that he was not at all cross-examined on this vital piece of evidence which means that this piece of evidence remained unchallenged, uncontroverted and uncontradicted and the Court ought to accept the piece of evidence as proof of the fact relating to the rendering and accepting claimant’s resignation letter, citing Ivienagbor v. Bazuaye [1999] NWLR (Pt. 620) 552 at 558-559, Ojo v. Charoro [1999] 8 NWLR (Pt. 615) 374 at 392, Adim v. NBC Ltd [2010] 9 NWLR (Pt. 1200) 543 at 564, Ifeanyi Chukwu Osondu Co. Ltd v. Akhigbe [1999] 11 NWLR (Pt. 625) 1 at 19, section 123 of the Evidence Act 2011 and Temile v. Awani [2001] 12 NWLR (Pt. 728). That by Oyewumi Oyetayo v. Zenith Bank Plc (supra) the claimant since 30th September 2005 has no right or benefit to derive either from the defendant’s MD or the defendant itself, urging the Court to so hold.
10. Issue (3) is whether the claimant is entitled to special, general and exemplary damages and cost of this action as per his amended statement claim dated 25th February 2015. Citing Union Bank of Nigeria Plc v. Soares (2012) 29 NLLR (Pt. 84) 329 at 377, which held that damages of whatever kind are a function of liability, and that where the plaintiff fails to establish the liability of the defendant, then such plaintiff will not be entitled to award of damages, and Tsokwa Oil Marketing Co. (Nig) Ltd v. BON Ltd [2000] 11 NWLR (Pt. 777) 163 at 218, the defendant submitted that while an employee whose employment is wrongfully terminated may be entitled to damages, the purported employment of the claimant in the instant case was not wrongly terminated as has been shown in the previous argument that the claimant voluntarily tendered his resignation letter dated 30th September 2005, which was received/accepted on the same day and which fact and piece of evidence remains unchallenged and uncontroverted. That by the receipt of his resignation letter, it shows that the claimant voluntarily removed himself from the employment of Chief Atiku or (the defendant), if any; therefore, since the claimant has failed to establish the liability of either the MD or that of the defendant, he will not be entitled to award of any damages of any kind because as at the date of the robbery incident on the 4/4/2011, which led to his physical challenge, the claimant had already ceased to be in the purported employment of Chief Atiku or that of defendant, if any, urging the Court to so hold.
11. In terms of the Two Million Naira cost pleaded in the claimant’s amended statement of claim, the defendant submitted that the claim for cost of action is special damages, citing Ahmed v. CBN [2013] 2 NWLR (Pt. 1339) 524. That in the instant case, the claimant, despite the fact the he pleaded Two Million Naira as cost of the action, under cross-examination, admitted clearly that he did not pay any sum to his counsel, which means that he has not spent a penny on this action, that the action is pro bono. Therefore, he failed to give exact calculation of the cost of the action and other special and exemplary damage being claimed against the defendant because he has failed to particularize them. That it is trite that special damages needs to be specifically pleaded and proved, citing Agbu v. Civil Service Commission Nasarawa State & ors [2011] 25 NLLR (Pt. 71) 139 CA.
12. Equally, that the law does not contemplate special damages in termination of employment relationship, referring to Nwaubani v. Golden Guinea Breweries [1995] 6 NWLR (Pt. 400) 184 at 203-205 and NICON Hotels Ltd v. NDC Ltd [2007] 13 NWLR (Pt. 1035) 237 at 269. Therefore, that the claimant’s claims for special and exemplary damages herein are not the contemplation of law. Citing Calabar East Co-operative v. Ikot [1999] 14 NWLR (Pt. 638) 225, the defendant submitted that the special damages being claimed were not particularized and proved. More importantly, that it was not the defendant’s action or inaction that led to the loss being complained by the claimant. That where the claimant failed to prove that it is the action or in action of the defendant that lead to his loss, he cannot be awarded any damages, citing Ahmed v. CBN (supra). That the claimant having tendered his resignation letter (Exhibit D5) and same was received and accepted since 30th September 2005, he cannot link the defendant or its MD with the loss being complained of, citing ACME Builders Ltd v. KSWB [1992] 2 NWLR (Pt. 590) 288. Finally, that special damages are unknown to contract of employment; therefore, the claim for same is perverse.
13. Issue (4) is whether the defendant is a juristic person who can be sued. To the defendant, Exhibit C2 which is the claimant’s identity card clearly spells out and captions the true name of the defendant as ATIKU SECURITY COMPANY NIG. LTD. That the name of the company of the claimant’s ID card (Exhibit C2) tallies with the name that appears on the defendant’s letter head paper, referring to Exhibits D1, D2, D3 and D4, which all read ATIKU SECURITY COMPANY NIGERIA LIMITED. Certainly, that this is the true name registered and incorporated by the defendant and not ATIKU SECURITY COMPANY LIMITED (with omission of NIGERIA) thus making the two name not to be the same. That while the name which includes “Nigeria” is the real name of the company and a juristic person, the name with which the present suit was instituted is not the defendant’s true name and so is not a juristic person. That the law is settled that a non-juristic person generally cannot sue or be sued,c citing Abu v. Ogli [1995] 8 NWLR (Pt. 413) 353 at 732, Emecheta v. Oguevi [1996] 5 NWLR (Pt. 447) 227 at 240 and Isokpan v. ETB Ltd [2012] 29 NLLR (Pt. 84) 483 at 493. That for the fact that the claimant sued a non-juristic person which lack capacity to be sued, the Court should strike out/dismiss the suit as the claimant ought to have sued ATIKU SECURITY COMPANY NIGERIA LIMITED but, wrongly sued ATIKU SECURITY COMPANY LIMITED.
14. Finally, that the facts of robbery incident pleaded at paragraphs 18 to 30 of the amended statement of defence dated 11th May 2015 and paragraphs 20 to 32 of the written deposition on oath dated 7th June 2018 amount to gross misconduct and a conduct of a grave and weighty character as to undermine the confidence which exists between the claimant and Chief Atiku, citing Umoh v. ITGC [2001] 4 NWLR (Pt. 703) 281 at 301-302. That such pleaded facts are deemed admitted and evidence thereto remains unchallenged, urging the Court to treat it as such, citing Ogwuche v. BSCSC [2014] 7 NWLR (Pt. 1406) 374 at 394.
15. In conclusion, the defendant submitted that the burden of proof in a civil case is on the party who will lose if no evidence is adduced at all, referring to Yusuf v. Dornier Aviation (Nig) Ltd [2004] 10 NWLR (Pt. 880) 1 and NMA v. MMA Inc [2010] 4 NWLR (Pt. 1185) 613. That the claimant failed to prove the existence of the employer/employee relationship between him and the defendant and has generally failed to prove his case; therefore, the suit is liable to be dismissed, citing Oyo v. Onuoha & anor [2011] LPELR-1873(SC) 29. Consequently, that the suit is liable to be dismissed, urging the Court to dismiss same.
THE SUBMISSIONS OF THE CLAIMANT
16. The claimant’s final written address dated 24th July 2018 but filed on 27th July 2018 is a disjointed piece of 26 sheets of paper put up by the claimant’s counsel, “Ayogu Felix Buchi Esq”. It is incoherent and does little to bring out the submissions of the claimant. The address did not disclose the issues addressed; but has in the body of the address submissions relating to issues (2), issue (2) itself is not even disclosed but appears to deal with negligence since negligence and its requirements are copiously discussed, (3) and (4). Issue (3) is first put as “whether the defendant is liable to pay the claimant’s cost”; and then in the discussion, it is put as “whether the claimants entitled to any or all the damages claimed for injury suffered as a result of the defendant’s direct or indirect actions and/or inactions” – even here, what we have as discussion is first paragraph 6.0 and the next paragraph that can be seen is paragraph 6.3 (with paragraphs 6.1 and 6.2 not indicated at all). Issue (4) is put as “whether the defendant is liable to pay the claimant cost of the action”. As can be seen, this repeats the first issue (3) the claimant indicated as I stated earlier; and here, what we have is paragraph 7.0 and then paragraph 7.3 with no paragraphs 7.1 and 7.2 shown. There is no where in the address that issue (1) was indicated; in like manner, after the part of paragraph 1 in the 1st sheet, nothing is said of paragraphs (and the accompanying sub-paragraphs of) 2, 3 and up to 4.3 The pages of the address that have paragraphs 5.3 and 5.4 as well as paragraphs 5.6 and 5.7 are repeated. I tried reading through what the claimant’s counsel calls his written address but I must confess it was a harrowing experience. I can only make out in a general sense what the argument of counsel to the claimant is. Accordingly, I shall endeavor to simply incorporate these general arguments of the claimant in the decision part of this judgment relying in the main on the evidence adduced by the claimant.
COURT’S DECISION
17. In considering the merit of the claimant’s case, I start off with the claimant’s final written address, which I indicated was filed on 27th July 2018. It is dated 24th July 2018 and signed by counsel for the claimant, “Ayogu Felix Buchi Esq”. The address is not paged but can be found in the case file at pages 442 to 467. The address does not have a numbered summary of the points raised by the claimant to enable the Court have an idea of the submissions of the claimant. Instead, the address is a disjointed 26 sheets of paper put up by counsel for the claimant. The content and format of a written address is provided for by Order 45 Rules 2 and 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017). Rule 2(2) provides that a written address shall not be more than 35 pages (implying that the address must be paged), the address shall be set out in paragraphs numbered serially, shall not contain extraneous matters; and Rule 3(1) provides amongst other things that the address shall be concluded with a numbered summary of the points raised and the party’s prayers. The proviso to Rule 2(2)(g) states that where a written address contains extraneous matters, the Court may discountenance the portion of the final written address containing the extraneous matters. And by Rule 3(2), failure to comply with Rules 2 and 3(1) may render the written address incompetent. From these Rules, the claimant’s final written address as filed offends these highlighted Rules. The fact that the claimant’s counsel did not page the address makes it the more disjointed and incoherent as some of the sheets do not have numbered paragraphs and so it is not known what issues they address. Even when I indicated earlier that issues (3) and (4) where disclosed, their structure is equally disjointed. By all standards, the claimant’s final written address offends the proviso to Rule 2(2)(g) and Rule 3(1) of the NICN Rules. I so hold.
18. I note that a litigant is not under compulsion to file any written address (Nicholas Elumeziem & ors v. Boniface Amadi [2014] LPELR-22459(CA)); and that the written address is designed to assist the Court and so in some circumstances it may be a matter of formality – it may not diminish or add strength or weakness in a party’s case. See Bosma & ors v. Akinole & ors [2013] LPELR-20285(CA) and Ndu v. The State [1990] 7 NWLR (Pt. 164) 550 SC. Where the facts are straight forward and in the main not in dispute, the trial judge would be free to dispense with the final address given that cases are normally not decided on addresses but on credible evidence; and no amount of brilliance in a final speech can make up for lack of evidence to prove and establish or else disprove and demolish points in issue. See Niger Const. Ltd. v. Okugbene [1987] 2 NSCC 1258 per Oputa, JSC. A fortiori, where counsel chooses to file an incoherent written address, he has himself to blame, not the Court. I do not think that the Court is duty bound to go out of the ordinary to make sense of an incoherent and disjointed written address as that filed by the claimant’s counsel in this case. The claimant and his counsel only have themselves to blame.
19. During the trial, the Court noted that DW took oath on the Holy Bible but the opening words of his deposition puts him as a muslim. On being asked, DW said it was an error and that he is a Christian. Secondly, DW testified that he is a Structural Engineer and Site Engineer for the defendant. He also testified that he only has a secondary school certificate. On being asked whether a secondary school certificate holder can on that ground alone be a Structural Engineer, DW had no answer. All of this show DW not to be a reliable witness. I will accordingly treat his testimony with suspect.
20. For the claimant, he had in paragraph 1 of his amended statement of claim pleaded that he “is a Nigerian Citizen and a retiree of…” However, under cross-examination, he testified thus: “No, I am not a retiree”. Does this make the claimant a witness of truth? I do not think so.
21. The law is that a claim is circumscribed by the reliefs claimed. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47. The reliefs claimed by the claimant are essentially five – the sixth is an omnibus claim i.e. “any…order…this…Court may consider appropriate…” The duty is thus on the claimant to prove reliefs (1) to (5) he claims to the satisfaction of the Court. The question is whether he has done this given the state of his pleadings and evidence before the Court.
22. Relief (1) is a claim for “a declaration that the claimant is entitled to the sum of N390,000.00…being the lawful outstanding balance from the April, 2012 to April, 2013 salaries due to him”. I take it that the claimant is making a claim for arrears of salary. This is a claim for special damages, which by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) must be claimed specially and proved strictly with concrete, credible and compelling evidence. The claimant’s case is that he is an employee of the defendant on a monthly salary of N30,000. The defendant denies that the claimant is its employee. What is the evidence of the claimant here? His deposition and Exhibit C2, a copy of his identity (ID) card. Is an ID card sufficient proof of an employment? I do not think so. This is because under cross-examination, the claimant testified that he does not have a letter of employment, nor a letter of promotion, nor a pay slip. That he was paid on pay table given that he does not have an account. It is the claimant’s argument that the law allows employment by conduct. This is true but section 7(1) of the Labour Act LFN 2004 allows only a grace period of three months within which a written statement must be given to the employee containing the facts/particulars of the employment in terms of the terms and conditions of work. This is not the case in the instant case. In any event, Exhibit D5 dated 30-9-2015 is a letter written by the claimant to the defendant applying for resignation and intimating of his desire to move to Warri in Delta State, appealing in the process for his salary for the month. The Security Director then endorsed to Manager on same Exhibit D5 that he should collect all company property from the claimant before he moves away. This to me is sufficient acceptance of the claimant’s application for resignation by the defendant, not that the defendant had any choice in the matter since an employer cannot keep an employee against his will. See WAEC v. Oshionebo [2006] LPELR-7739(CA); [2006] 12 NWLR (Pt. 994) 258, which held that “Tendering of a letter or resignation carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer”. Since the claimant resigned on 30th September 2005, there is no proof before the Court that he was re-employed after that date by the defendant for which he will then be entitled to relief (1) as claimed.
23. In any event, by 7UP Bottling Company Plc v. Augustus, the claim for salary is a claim for special damages, which must be proved to the satisfaction of the Court “with credible evidence and without such proof no special damages can be awarded”. And by Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, the claimant must first show an entitlement and then show how he arrived at the quantum of the entitlement. The claimant shows an entitlement by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employee and his/her employer. The claimant provided none of this to show his entitlement and the quantum of the entitlement. The only thing before the Court is his ipse dixit. This is not sufficient proof for a claim of special damages. See Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA). As it is, relief (1) remains unproved. It fails and so is dismissed.
24. Relief (2) is a claim for “a declaration that the claimant is entitled to an interest at the rate of 21% per annum on the of N390,000.00…from April, 2012 to April, 2013 amounting to a sum of N81,900.00…and 5% interest rate per annum from 1st May, 2013 until the date of judgment and thereafter at 10% per annum until the judgment debt is liquidated”. As can be seen, relief (2) relies on relief (1) for success. Since relief (1) failed, relief (2) must equally fail. It is accordingly dismissed.
25. Relief (3) is a claim for “a declaration that the claimant has suffered untold hardship, emotional trauma as well as rendered incapable of fending for his family owing to the decapitating injury suffered while in the defendant’s employment”. The case of the claimant for this relief appears to be one in the tort of negligence because the claimant’s counsel made copious though disjointed submissions as to the requirements of negligence in terms of the trilogy of duty of care, breach of the duty and resultant damage. But what is the evidence here? Once again it is the claimant’s deposition, his ipse dixit. The story of the claimant is that he is a victim of armed robbery which occurred when he was at work in the defendant’s premisses on 4th April 2011. See paragraphs 7 to14 of his statement of claim as well as paragraphs 8 to15 of his deposition. I have already held that the claimant did not prove any employment with the defendant after 30th September 2005; as such there was no employment which existed as at the date of the robbery as the claimant argues. Even if the claimant were just to be within the premisses of the defendant when the robbers struck, the claimant has not shown to this Court how that is the fault of the defendant as to make the defendant liable in negligence. Thirdly, and quite importantly, the claimant in both his pleadings and deposition put the date of the robbery as 4th April 2011; and in paragraph 14 of his deposition he deposed thus: “…after shooting me, the robbers left and I was taken to General Hospital Lagos Island and I was admitted in the Emergency unit of the hospital for treatment”. In support of this testimony, the claimant tendered Exhibit C1, a medical report dated 13/03/2013 indicating that he was admitted on 4th April 2011 as a victim of armed robbery attack who sustained gunshot injury to his left leg, was treated and had “below knee amputation”, and now “walks with the aid of prosthetic limb”. The claimant did not show how it is the fault of the defendant that he suffered this injury, neither did the claimant call in evidence the doctor(s) who treated him and so issued Exhibit C1. I do not see how I can hold the defendant responsible in negligence for the injury of the claimant. Relief (3) accordingly remains unproved. It fails and so is dismissed.
26. Relief (4) is a claim for “an order that the defendant pay to the claimant sum of Ten Million Naira…being general and exemplary damages against the defendant for exceptional hardship, emotional and psychological trauma the claimant passed through as a result of his permanent disability (lost a limb) while in the defendant’s employment”. This relief relies on relief (3) for success. Since relief (3) failed, relief (4) must equally fail. It is hereby dismissed.
27. Relief (5) is for “an order of Two Million Naira…against the defendant as cost of this action”. Under cross-examination, the claimant testified that he did not pay his lawyer anything. Having not paid anything, there is no basis for asking for cost. Additionally, having failed in reliefs (1) to (4), there is no basis for the claim for cost. After all, cost is a consequential relief; and is at the discretion of the Court (NNPC v. Clifco Nigeria Ltd, supra) and relies on the success of the main the clams for success. Awoniyi v. Reg. Trustees of Amore [2000] 10 NWLR (Pt. 676) 522 at 539 held a consequential order to be one founded on the claim of the successful party, and that it is difficult to conceive how a positive consequential order can arise from a claim which has been dismissed. And by Hemason (Nigeria) Ltd v. Pedrotech (Nigeria) Ltd [1993] 3 NWLR (Pt. 283) 548, where a court refuses the principal order sought an incidental order cannot be made. Relief (5) must accordingly fail. It is hereby dismissed.
28. Since all the 5 key reliefs of the claimant failed, relief (6) is a non-issue. It is equally dismissed.
29. On the whole, and for the reasons given, the claimant’s case has no merit and so is dismissed.
30. Judgement is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
