Mr. Henry Ihebereme-VS-Hartland Nigeria Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

DATE: JANUARY 23, 2020

SUIT NO. NICN/ABJ/172/2018

BETWEEN

Mr Henry Ihebereme – Claimant

AND

Hartland Nigeria Limited -Defendant

REPRESENTATION

Ike Njoku, with B. Okezie, for the claimant.

S. A. Uwagbale, for the defendant.

JUDGMENT

INTRODUCTION

1. The claimant, a mason by trade and left-handed, filed this action on 19th June 2018 vide the General Form of Complaint. By paragraph 20 of his statement of claims, the claimant is seeking the following relief against the defendant: ��the sum ofTwo Hundred and Fifty Million Naira (N250,000,000) as compensation for the permanent loss of the use of his hand for pain and suffering, and for loss of enjoyment of life�. As endorsed on his complaint, the claimant states that his injury was sustained in the course of work for the defendant at the defendant�s site at Benin City, Edo State. That his 2nd, 3rd, 4th and 5th fingers of the left hand were crushed on 23/08/17. That the defendant despite receiving advice to immediately take him to an orthopedic facility for proper evaluation and treatment, refused, failed or neglected to do so until he lost the use of his hand. That he is unable to continue in the same type of trade and the defendant has stopped all manner of payment of allowances or support for him, who has a wife and children to support.

2. The defendant reacted by filing its defence processes; to which the claimant filed a reply.

3. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1, C2, C3, C4, C5, C6, C7 and C7(a). Exhibit D1 was also tendered through CW. For the defendant, Hussaini Dangaladima, Senior Admin Officer of the defendant, testified as DW and tendered Exhibits D2, D2(a), D3 and D4.

4. At the conclusion of trial, parties filed and served their respective final written addresses. The defendant�s final written address was filed on 28th June 2019, while the claimant�s was filed on 8th January 2020. The defendant�s reply on points of law was filed on 13th January 2020.

THE CASE BEFORE THE COURT

5. To the claimant, by letter of employment dated 6th April 2017 (Exhibit C1), he was employed by the defendant as a mason.The terms of employment contained in the said Exhibit C1 did not itemise the nature of the work of a mason but that it must be presumed to include moulding of concrete slabs and their removal from the point of moulding to the point of the site where it is needed and such related tasks as the foreman may direct a junior mason or any labourer to do.It is the case of the claimant that on 23/8/17, he and his co-staff, one Mr Excellence, were directed by the foreman to remove a set of concrete slabs already moulded and dried from one point on the site to another. That he as a junior staff, he was not in a position to challenge the foreman and to refuse to oblige on the ground that removal of the slabs from one point of the site to another is not part of his job description. That he jumped onto the forklift with his left hand resting on the metal tube housing the ejectable forks. That while riding to the spot, the operator, who had just been converted to a forklift operator (and that the claimant is in a position to know), rammed the side of the forklift into a stationary car.That he yelled out to Mr Excellence, the operator, that he was destroying someone�s car and apparently in panic, the operator pressed the wrong button and the fork eased up, crushing the claimant�s fingers into the side of the tube.That he was rushed to Sama Polyclinic, a facility run by one Doctor Fredrick Omorowa, the retained doctor of the defendant. Dr Omorowa sent him to Union Diagnostics for x-ray of the injury.

6. To the claimant, thedefendant has not denied that such an instruction was given to a fork lift operator. That they say that the claimant was a mason and had nothing to do with the forklift and that he jumped unto the forklift on a frolic of his own. That the only reason they took him to hospital was that the incident happened on their site. That it is a known fact that forklifts are usually guided by someone on ground who directs the fork and in most cases ties the lift cable round the object to be lifted and signals the operator to lift. That the defendant led no evidence to show that someone other than the claimant was assigned that task that morning to make their story that the claimant was a mad man looking for vehicles to frolic on, stick.That the court must presume that the claimant was the person assigned that task and he rode with the operator to towards where the slabs to be lifted lay and was, therefore, not on his own frolic.

7. The claimant went on that it is significant that the defendant admits in its opening statement that Dr Omorowa, the defendant�s retained Doctor, was the one who referred the claimant to Union Diagnostics and Clinical Services Plc. That the Report (Exhibit C6) issued by one O. O. Denis, Consultant Radiologist at that facility, is dated 28th August 2017, part of which reads: �impression: Multiple fractures of the 2nd, 3rd and 4th middle phalanges of the left hand. Orthopedic evaluation advised�.That the defendant had claimed that the reference to the diagnostic centre was �to enable the doctor properly treat the claimant without any complication�. That the defendant never led any evidence to show that Dr Omorowa, their retained doctor, was an orthopaedic doctor. The claimant then asked why it took Dr Omorowa and the defendant nearly two months to write a letter of 20/10/19 directing the claimant to proceed to an orthopaedic facility.

8. The claimant continued thatan index of that care is manifest in the evidence of the claimant that he was chased out of Sama Polyclinic only three days after the occurrence of an accident that crushed four of his fingers, which piece of evidence was neither challenged in the witness statement on oath nor oral testimony of the defendant. That following the deterioration of his hand, his wife dragged him to the defendant�s office and caused a scene and left in annoyance. That it was only then that the Admin officer pursued them and entreated them to enter the company�s car. That he took them to University of Benin Teaching Hospital orthopaedic unit where the Admin officer was asked two questions: who was the doctor that was treating the claimant�s hand and why was the claimant brought to them after the hand had already become damaged? That the claimant�s evidence that the Admin officer could not answer either question is unchallenged.Thereupon, that the remorseful Admin officer drove them back to the office and asked them to bring a written request for rehabilitation. It was only when they brought a letter dated 18/10/17 proposing N10 million that trouble started with the Admin officer accusing them of wanting to become millionaires through the injury. That the reaction of the Admin officer taking the claimant and his wife to his office and requesting them to bring a written proposal for his rehabilitation is consistent with the claimant�s version that they were informed at the UBTH orthopaedic unit that he had permanently lost the use of his hand.

9. That it is in light of the above that this Court must recognise Dr Omorowa�s letter of 20/10/17 directing the claimant to go to an orthopaedic hospital as otherwise the company would not be responsible for any deformity he might suffer, as an effort at a cover up. That the contemporaneity of the Doctor�s letter to the written request by the claimant makes such a conclusion inescapable.That the harm had already been done. It was a case of locking the stable after the horse had escaped. It was self serving.

10. To the defendant, the claimant was employed by the defendant on 6th April 2017 as a mason to its construction site in Benin City. That the sole function of a mason is only to maintain/plaster drainage channels after it has being dug and convert cement pulled on it by helpers. That on 23rd August 2017, the claimant who has no business with forklift negligently climbed forklift unauthorized and sustained injuries on his 2nd, 3rd, 4th and 5th fingers of his left hand.Because the incident happened during the working hour in the construction site of the defendant, he was rushed to Sama Polyclinic and Maternity at No. 178 2nd East Circular Road, Benin City where the retainship Doctor of the defendant, Dr Omorowa E. Frederick, treated him and later took him to Union Diagnostic and Clinical Services Plc at No. 75 Sapele Road, Benin City for x-ray to enable the Doctor properly treat the claimant without any complication. Based on the x-ray report dated 28/8/2017, Dr F. Omorowa referred the claimant for orthopedic and physiotherapist expert management by letters dated 02/10/2017 and 11/10/2017 which are Exhibits D2A and D21 respectively. The defendant vide a letter dated 20th October 2017 ordered the claimant to proceed for further treatment in UBTH Benin City, which is Exhibit D1 in the case. But the claimant deliberately refused, neglected and failed to proceed for further medical treatment instead insisted on collecting N10,000,000.00 (Ten Million Naira) as compensation from the defendant.

THE SUBMISSIONS OF THE DEFENDANT

11. The defendant submitted three issues for determination, namely:

Whether the claimant have (sic) any legally admissible evidence in proof of his claim before this Honourable Court.
Whether the claimant has proved his claim with credible and congent (sic) evidence on balance of probability to entitle him to judgment of this Honourable Court.
Whether the defendant was negligent considering the facts and circumstances of this case.

12. On issue (a), the defendant submitted that the claimant has no legally admissible statement on oath in proof of his claim before this Court. That Order 3 Rule 9(c) of the National Industrial Court of Nigeria (Civil Proceedings) Rules 2017 (NICN Rules 2017), provides that the complaint shall be accompanied by written statement on oath of all witnesses; and Order 40 Rules 1 and 4 of the Rules of this Court also provide that any fact that requires to be proved may be proved by written deposition and oral examination of witnesses in open court while oral examination of witnesses shall be limited to facts pleaded and the sworn deposition frontloaded. That the claimant in this case filed 2 statements on oath dated 19th June 2018 and 8th October 2018 respectively. That bysections 112 and 113 of Evidence Act 2011: �The court may permit an affidavit to be used notwithstanding that it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person duly authorized�. It is the defendant’s submission that statement on oath can only be used as evidence before a court of law if the court is satisfied that it was sworn before a person duly authorized to administer oath in law even if it is defective in form and not substance. That the claimant under cross-examination admitted that his 2 statements on oath were not sworn to before the Commissioner for Oath in any National Industrial Court Registry in Nigeria but rather it was sworn in one office at G.R.A Benin City, Edo State while the statements on oath were filed at the National Industrial Court Registry, Abuja. That the Court can take Judicial Notice of the fact the National Industrial Court Registry in Edo State is at No. 169 Martala Mohammed Way, 3rd East Circular Road, Benin City and not G.R.A Benin City.

13. The defendant relied on Buhari v. INEC [2008] 8 NWLR (Pt. 1078) 546 cited by A.M. Adebayo in his book titled,Evidence Act Annotated 2011, where the Court of Appeal held thus:

The provision of section 84 of the Evidence Act (Now section 112 of the Evidence Act 2011) is clear and unambiguous and appears to me that the word �Shall� is clearly mandatory. These depositions were made in favour of the petitioner, General Mohammadu Buhari, Mr. Keonu is no doubt a Notary Public, but he is a legal practitioner representing the petitioner. He is therefore precluded from taking depositions which are infact affidavit evidence in this petition.

The provision of Section 84 and 85 of Evidence Act (now Sections 113 and 114 of the Evidence Act 2011) are not all saving provisions. It is clear from the provisions that they are intended to save only affidavit that are defective in �form� and not those that are defective in substance. In the instant case, the court is satisfied that the depositions were not sworn before person duly authorized to administer oath in the circumstance�

It is, therefore, the claimant�s submission that since the 2 statements on oath were not sworn before a person duly authorized to administer oath, which is the Commissioner for Oaths, the 2 statements on oath are, therefore, not in compliance with section 112 of Evidence Act 2011; and so the Court ought to discontinuance same and hold that there is no evidence in proof of the claim before the Court.

14. The defendant went on that assuming without conceding that the Court holds otherwise, then most of the paragraphs in the claimant�s statements oath are not supported by pleadings and, therefore, go to no issue. For example, that paragraphs 3, 4, 5, 10, 11, 12, 17, 18, 19, 20, 24, 25, 26, 27 and 28 of the statement on oath dated 19th June 2018 are not supported by any averment in the statement of claim and, therefore, go to no issue, citing Abubakar v. Waziri [2008] Vol. 160 LRCN Pg 72 at 86. That to make his case worse, the claimant did not claim his reliefs in his statement on oath. That throughout the statement on oath, the claimant did ask for the relief of N250 Million as compensation for his injury as contained in his complaint and statement of claim dated 19th June 2018. That an averment in pleading where no evidence is led is deemed to be abandoned by the party as the Court is not a Father Christmas who gives to a party what is not asked for, citing Abubakar v. Joseph [2008] Vol 160 LRCN 159 at 165. The defendant then urged the Court to dismiss the claimant�s claim for lack of proof.

15. The defendant took issues (b) and (c) together; and submitted that the claimant failed woefully to prove its case with credible and cogent evidence on balance of probability to warrant this Court to enter judgment in his favour. That Order 2 Rule 12(4)(e) – (g) of the NICN Rules 2017 provides for the requirements for any employee or employee�s dependant to file an originating process for compensation resulting from injury, illness or diseases at the work place, which requirements are:

(e) the name and address of any specialist or accredited medical practitioner who attended to the employee.

(f) the report(s) of the specialist or accredited medical practitioner who attended to the employee.

(g) copy(ies) of the report of the death, injury, illness, or diseases informing the employer of occurrence of death, injury or diseases.

That from the pleading filed by the claimant, he did not frontload any medical report from any hospital or any accredited medical practitioner. That under cross-examination, the claimant admitted that he has no medical report from any hospital showing his injuries on his fingers as alleged.It is thus the defendant�s submission that failure on behalf of the claimant to tender any medical report for his injury is fatal to his case and so the Court should hold that if the evidence was produced it would have being unfavourable to him, invoking section 167(d) of the Evidence Act 2011.

16. The defendant continued that the claim of the claimant is based on tort of negligence against the defendant. Referring toNigerian Law of Tort by Kodilinye at page 38,British Airways v. Atoyebi [2008] EJSC Vol. 2 page 137 at 142 and Abubakar v. Joseph [2008] Vol. 160 LRCN page 159 at 163 – 172, the defendant submitted that for the claimant to succeed in the tort of negligence, he must prove the following elements: a duty of care owed by the defendant to the claimant; breach of that duty by the defendant; and damages to the claimant resulting from the breach. That from the totality of the claimant�s case, he did not lead any evidence in proof of any of these essential elements of tort of negligence. That in an attempt to prove that the forklift was negligently operated by the operator, the claimant gave different names of the operator. That in the solicitor�s letter frontloaded along with the complaint, he gave the name as Mr Excellence, while in his statement of claim in paragraph 3, he gave the name of the operator as Mr Confidence; but in another breath in paragraph 1 of his reply to the defendant�s statement of defence, he gave another name of same operator as Mr Destiny.

17. That to make matters worse, the claimant failed to give the particulars of the act negligent complained of.It is this the defendant�s submission that a party who alleges negligence should not only plead the act or acts of negligence but should also give specific particulars, citing Aku Nmecha Transport Service Nig. Ltd v. Atoloye [1993] 6 NWLR (Pt. 298) 233 at 248. That the claimant tendered Exhibits C7 and C7(a), which are pictures. But that Exhibits C7 and C7(a) are not admissible for the following reasons:

(1) There is no evidential foundation for the admissibility of those documents. The plaintiff did not lead any evidence to show that he took photographs in any of the paragraphs of his statement of claim nor statement on oath.

(2) Exhibits C7 and C7(a) have no negatives attached to them and there is no evidential foundation that there were digital photographs.

The defendant then urged the Court to expunge same as they were wrongly admitted.

18. The defendant went on that assuming without conceding that the Court holds otherwise, then Exhibit C7(a) showing only fingers does not indicate that the hand belonged to the claimant as there is nothing indicating that the hand shown in Exhibit C7(a) is peculiar to the claimant only;while Exhibit C7 does not show any injury but only damaged hand, urging the Court to discontinuance same.

19. The defendant then added that the claimant filed his reply to the statement of defence dated 8th October 2018 in response to the facts contained in the defendant�s statement of defence but that surprisingly the claimant introduced new facts which were not contained in the defendant�s statement of defence.It is thus the defendant�s submission that a reply to statement of defence is meant to address only facts contained in the statement of defence and not to introduce new facts or to correct mistakes contained in the claimant�s statement of claim, urging the Court to discontinuance all the new facts introduced by the claimant in his reply to the statement of defence. In conclusion, the defendant urged the Court to dismiss the claim of N250 Million as gold-digging with cost.

THE SUBMISSIONS OF THE CLAIMANT

20. The claimant submitted a sole issue for determination i.e. �whether the plaintiff has proved his claim that he is entitled to the payment of compensation for the loss of the use of his hand in the course of his employment with the Defendant�. And then further submitted that he would in addressing the sole issue also address the following specific questions raised in the defendant�s address, namely:

1) Alleged non-compliance of the claimant�s witness statements on oath with the law.

2) Alleged non-support of paragraphs in the witness statements on oath in the pleadings.

3) Alleged non-statement of particulars of medical expert and non-tendering of medical report by the claimant.

4) Alleged failure of the claimant to prove tort of negligence.

5) Alleged confusion in naming of the operator of thedefendant�s forklift.

6) Challenge to the admissibility of Exhibits C7 and C7(a) [photographs].

7) Allegation that the claimant�sreply to the statement of defence dated 8/10/18 contained new facts.

21. In arguing the sole issue, the claimant submitted that he has proved the following:

(1) That he was an employee of the defendant at the time of his injury.

(2) That he sustained the injury to his hand while engaged at work on the site of the defendant on the 23/8/17.

(3) That the injury resulted in the fracture of the phalanges of his fingers in the manner described in the reports contained in Exhibits C2, C3 and C6.

(4) Despite sustaining an injury that resulted in multiple fractures of his fingers, he was chased out of the hospital retained by the defendant, his employer, just after three days.

(5) When the injury got worse, he was brought to the defendant�s Benin City office where his wife created a scene before the defendant was shamed into taking him to UBTH orthopaedic unit.

(6) They were informed at that point that it was too late as the hand had gotten irreparably damaged.

To the claimant, all these are in the pleadings and in the claimant�s witness statement on oath, and have not been challenged by the defendant.

22. On the allegation that the claimant�s witness statement on oath does not comply with law i.e. was not sworn before an authorized person, the claimant submitted that his witness statements on oath enjoy a presumption of regularity having complied with the basic format for an affidavit or an oath as laid down at section 117 of the Evidence Act and the Oaths Act,and must be presumed to have been sworn to at the place and before the official indicated, citingsection 111 of the Evidence Act, which provides that:

The fact that an affidavit purports to have been sworn to in the manner prescribed in the preceding sections shall be prima facie evidence –

(a) of the seal or signature as the case may be, of any such court, judge, magistrate or other officer or person mentioned in, or appended or subscribed to, any such affidavit; and

(b) the authority of such court, judge, magistrate or other officer or person to administer oaths.

That once a document purporting to be sworn to on oath appears on its face to have been so sworn before an authorised person as endorsed, it attracts to itself a presumption in the eyes of the law that it was so sworn. That it will take more than a casual allegation that the claimant�s witness statements on oath were sworn to at GRA Benin City to move this Court to so hold, notwithstanding the alleged admission by CW.

23. The claimant went on that what counsel did not disclose in his submission is that theoffice of the defendant (HarthlandNigeria Ltd) as is evident on its letter headed communications, particularly Exhibit C1(offer of employment to the claimant) and Exhibit C5 (employee identity card issued to the claimant), is located at No. 478 Akhionbare Street off lhama Road, GRA Benin City, Edo State.That the claimant�s witness statements on oath are not defective.But the standard of what the Court will do or not do about an affidavit has been set by section 113 of the Evidence Act, which uses the word �satisfied�. That the Court will only discountenance the use of an affidavit if �satisfied� that the oath was not administered before an authorised person; and the Court will only be satisfied on the basis of evidence, not conjecture, not suspicion.

24. The claimant continued that to rebut the presumption of regularity that the witness statements on oath enjoy under section 111 of the Evidence Act, namely, that they were sworn to before an authorised person as indicated on the endorsements, the defendant would need to lead positive evidence to prove the contrary of what is endorsed on the documents. It cannot hinge its position on the purported “admission, of a barely educated witness who as this Court may have observed on 14th June 2019 while in the witness box, was apparently confused about the questions put to him.

25. To the claimant, the legal basis upon which the defendant urges the Court to conclude that the witness statements on oath of the claimant were sworn to at GRA Benin City and not at the National Industrial Court Registry Abuja as appears on the face of both documents, presumably, would be the principle of admission against own interest, citing section 27 of the Evidence Act 2011, which provides that �admission are not conclusive proof of the matter admitted but may operate as estoppel�� That it is preposterous for the defendant to insist without leading evidence that the claimant who may have been referring to other documents signed at the office of the defendant had by his admission provided proof that his witness statements on oath were sworn to at GRA Benin City. That it has not been shown that the claimant ever resided at GRA Benin City or that his lawyer had his office there. That the only evidence on record that connects the claimant to GRA Benin City is the location of the office of his employer, the defendant, located at GRA Benin City. That an admission is provable against the maker where the issue is a relevant one, citingAjide v. Kelani[1985]3 NWLR (Pt.12) 248 at 260. That issues are relevant when both parties join issues on them; andissues are joined when one party asserts a fact and the other party asserts the contrary.

26. That the defendant did not join issues with the claimant as to where and before whom the witness statements on oath were sworn nor lead evidence, so powerful as to �satisfy� the Court that they were sworn otherwise than as endorsed by the officer of the registry or authorised person.That he only use to which the defendant can deploy the claimant�s alleged admission is to use it to support a plea of estoppel. That where the defendant desires to use the purported admission by the claimant to �shut his mouth up�, the objective of a plea of estoppel being to shut up a party from denying what he said which has made the other party alter his position to his detriment, it must be pleaded, citingAdesina Oke v. Atoloye [1986] All NLR 100. That while there may be no requirement to plead estoppel in a cross-examination situation where the alleged admission arose spontaneously, a party urging the Court to take a step as drastic as closing its eyes to the witness statement on oath of an opposing party must show that the evidence which he elicited from cross-examination and upon which he asks the Court to so act arose from a question on which the parties have joined issues, citingOyelowo v. Government of Oyo State[2001] 17 WRN 39 andChukwura v. Ofochebe[1972] 1All NLR (Pt.2) 14. That the parties did not join issues on the question of where the claimant swore to his witness statements on oath. As such, nothing has occurred in the case to rob the two witness statements on oath of the presumption of regularity.

27. The claimant went on that assuming the above submissions fail to convince the Court that the claimant�s witness statements on oath were duly sworn at the Registry of the National Industrial Court Abuja as is clearly evident on the faces of the two documents, then by section 4 of the Oaths Act, no irregularity in the form which an oath or affirmation is administered or taken shall:

invalidate proceedings in any Court;

or render inadmissible evidence in or in respect of which an irregularity look place in any proceeding.

The failure to take an oath or make affirmation, and any irregularity as to the form of oath or affirmation shall in no case be construed to affect the liability of the witness to say the truth.

The claimant referred to Anatogu v. Iweka11 [1995] 8 NWLR (Pt. 415) 547 – incomplete citation,Solola v. State[2005] 11 NWLR (Pt.937) 460,Amadi v. Eke [2004] 14 NWLR (Pt. 892) – page given, andMkpa v. Mkpa[2010] 14 NWLR (Pt.1214) 612.

28. Finally on this issue, that there is a difference between an affidavit which is governed by the Evidence Act and a witness statement on oath which is regulated by the Rules of Court.That it was emphasised in Mkpa v. Mkpa (supra, at page 649) that it was not obligatory for any witness adducing evidence in an inquiry to take an oath or make a solemn declaration. And in Lambert v. Okujagu [2015] All FWLR (Pt.808) 652, the issue was whether an alteration effected by a lawyer to his client�s witness statement on oath and which was not re-sworn to before the Commissioner for Oaths did not disqualify the statement from being used in the trial. That it was held that the strict rules applicable with respect to oaths taken under the Evidence Act could not apply to witness statements on oath as the Rules of Court, which was the basis of the witness statement on oath, did not prescribe how they were to be made.

29. For the allegation of non-pleading of averments in the claimant�s witness statements on oath, the claimant submitted that counsel�s allegation that paragraphs 3, 4, 5, 10, 11, 12, 17, 18,19, 20, 24, 25, 26, 27 and 28 of the claimant�s statement on oath were not pleaded in his statement of claims is untrue and obviously calculated to mislead the court. That the pleading of the said paragraphs occurred in the statement of claims as follows:

Paragraphs 3, 4 and 5 – pleaded at paragraph 1 of the statement of claims.

Paragraphs 10, 11 and 12 – pleaded at paragraphs 7 and 8 of the statement of claims.

Paragraphs 17, 18, 19, 20 – pleaded at paragraphs 9 and 10 of the statement of claims.

Paragraphs 24 and 25 – pleaded at paragraphs 13, 14 and 15 of the statement of claims.

Paragraph 26 – pleaded at paragraph 16 of the statement of claims.

Paragraphs 27 and 28 – pleaded at paragraph 17 of the statement of claims.

That if the defendant desired clarification on any aspect of the claimant�s case, it was his responsibility to ask for further and better particulars. Accordingly, that Abubakar v. Waziri and Abubakar v. Joseph, cited by counsel, are inapplicable.

30. On the allegation of non-inclusion of particulars of specialist or accredited medical practitioner, the claimant submitted that counsel�s reference to Order 2 Rule 12(4) of the NICN Rules as authority for the requirements for filing claim in respect of injury is a wrong citation. That the requirements that counsel may be referring to are to be found in Order 3 Rule 12(2), which says the information may be contained in the originating process or the pleading of the plaintiff.It is the claimant�s submission that in filing this claim, he sufficiently pleaded information concerning the name and address of the specialist or accredited medical practitioner who attended to him, the reports of the specialist or accredited medical practitioner and copy of the report of injury at paragraphs of his statement of claims dated and filed on 19th June 2018, and also at paragraph 4 of his reply to the defendant�s statement of defence dated and filed on 8thOctober 2018.Moreover, that the medical expert that treated his injury is the retained doctor of the defendant. His reports on the nature of the injury are contained in the Excuse Duty Report of Sama Polyclinic signed by Dr Fredrick Omorowa and dated 31/08/17, a handwritten letter dated 29/10/17 by the same Dr. Fredrick Omorowa, Injury Appraisal Report issued by Union Diagnostic services Plc dated 28/08/17; and that the defendants have already admitted in its opening statement that the referral to Union Diagnostic Services which wrote the x-ray report was made by the said Dr Fredrick Omorowa. That all these documents were frontloaded with the claimant�s originating processes and pleadings. That documents attached to pleadings are part of the pleading, citingBrawal Shipping Nig Ltd v. Onwadike [2000] 6 WRN 82 at 95. That the pointlessness of this objection is underscored by the fact that the following medical reports have already been admitted in evidence at the trial without objection by the defendant: the Excuse Duty Report (Exhibit C2), Handwritten letter by Dr Fredrick Omorowa dated 28/10/17 (Exhibit C3) and Injury Appraisal Report from Union Diagnostic Services Plc (Exhibit C6).That the defendant cannot, therefore, feign ignorance of the history or nature of the claimant�s injury. That all the reports emanating directly from Dr Omorowa were on the letterhead of his Sama Polyclinic, which states his address. That if the defendant wanted better particulars or clarification, it could have demanded same.

31. For the allegation by the defendant that the claimant�s case is founded in negligence, the claimant submitted that counsel�s submission that the case of the claimant is based on the tort of negligence is baffling because at no point in the claimant�s pleading did the claimant state categorically that his case was based on the tort of negligence. That the claimant�s injury arose from an accident that occurred in the course of his duty and at his place of work. The claimant then defined an accident as an unforeseeable and unexpected turn of events that causes loss in value, injury and increased liabilities. That the event is not deliberately caused and is not inevitable, referring to https/thelawdictionary.org.accident. That in framing his case, he is aware that as held in Abubakar v. Joseph [2008] NSCQR Vol.34 (Pt.2) at 1234, mere proof of an accident does not amount to proof of negligence because not every accident can ground a successful claim in negligence.

32. To the claimant, he has no burden to specifically plead or prove negligence because he did not bring his claim on the basis of the tort of negligence simplicita. Nor is it the law that in order to succeed in a claim for damages, a person who has suffered the type of injury and ill treatment he has complained of must bring his suit under the tort of negligence.Even so, that it is his further submission that nothing of course stops this Court from inferring negligence from the facts pleaded and proved by him where the facts justify such a finding. That it is to avoid the hazards associated with strict proof of facts on which to erect a claim for damages founded on negligence (particularly in cases where the evidence needed, such as the qualifications of the forklift operator in this case are in the custody of the employer/defendant) that the courts have evolved the doctrine of �res ipsa loquitur�, meaning the thing speaks for itself.That this enables courts to dispose of cases of negligence based on circumstantial evidence, even without the plaintiff specifically pleading negligence, referring toTort Law, A Morden Perspective, by Keith N. Hylton, Cambridge University Press, 2016 Chapter 8, �Inferring Negligence� https://www.cambridge.org/core/books/tort-law .

33. The claimant continued that it is his case that what led to his injury was an accident because neither he, the victim, nor the defendant (his employer) designed or foresaw it. That what the defendant did after the event leading to the loss of the use of claimant�s hand and whether the conduct of the defendant stands up to what a reasonable employer would have done in the circumstances is what the defendant must explain to this court. The burden shifts.That the claimant does not have to specifically mention res ipsa loquitur in his pleading, citingRoyal Ade Nigeria Ltd v. National Oil and Chemical Marketing Co. Plc[2004] 8 NWLR (Pt.874) 206. That the defendant admitted the fact of the accident both in its pleadings and DW�s witness statement on oath; its only defence being that the claimant was on a frolic of his own.

34. To the claimant, his pleading and evidence adopted per his witness statement on oath that he continued to receive assurances from the medical doctor retained by the defendant and the Admin officer at Benin that the treatment he was receiving was adequate for his injury is unchallenged. That it is the responsibility of the defendant to explain to this Court that it did what a reasonable corporate organization in its position could have done for its employee who incurred the kind of injury he incurred while engaged in the normal course of his duty. That the Court will be looking at issues like why this employee with the kind of injury described in Dr F. Omorowa�s report (Exhibit C2) and the Radiologist�s Injury Appraisal Report (Exhibit C6) could not be allowed even the privilege of nursing his pain in the comfort of Sama clinic but was chased out of the clinic 3 days after it occurred.

35. Proceeding, the claimant asserted that it is the claim of the defendant that the injury was fully and properly healed; and then submitted that theCourt will not need expert evidence to infer and determine whether an injury of the magnitude described in the medical evidence derived from the defendant�s Dr Omorowa and Union Diagnostic Services could sufficiently have healed in three days. Even now, that the Court has power to order the physical appearance of the claimant to lay to rest every question about the nature of his injury and where the treatment he received has left him, urging that it is in the interest of justice that this Court so directs.Finally, that theCourt will be interested in knowing why after receiving Exhibit C6, a medical examination commissioned by its doctor, the defendant could not send the claimant to an orthopaedic facility but had to merely write to him a letter advising him to proceed to an orthopaedic facility after the claimant�s wife had had to come to its office to cause a scene. That a reasonable employer and its doctor would have moved the claimant from Sama Clinic on 29thAugust 2017 to an orthopaedic facility upon receipt of Exhibit C6in order to forestall injury relapse and guarantee healing in those critical first days following the injury.

36. To the claimant, there was no name or address of any particular orthopaedic facility mentioned in Exhibits D and D2, the letters purportedly directing the claimant to go and obtain orthopaedic treatment because none was arranged for. And no evidence was offered in support of the defendant�s pleading at paragraph 16 of the statement of defence that the claimant and his wife refused orthopaedic treatment in favour of traditional healing. That assuming they expressed such a preference (and that no evidence abounds that they did), what effort did the defendant make to ensure that they indeed got the claimant engaged for such a treatment? That there should at least be a letter showing that the defendant would not support that kind of treatment. The claimant then asked whether the defendant was expecting the claimant to sponsor his own orthopaedic treatment from a gross monthly salary ofN45,000?That the evidence before this Court is that the defendant is a callous and inhuman organization, urging the Court to so hold.

37. On the alleged misstatement of the operator�s name, that the claimant admitted in his reply to the statement of defence that there was a mistake in stating the name of the forklift operator as Mr Confidence. That the error was quickly corrected by the claimantin paragraph 1 of his reply to the statement of defence dated and filed on 8th October 2018.Moreover, that given the defendant�s admission that the incident occurred in the manner described (the point of divergence being only on the defendant�s allegation that the claimant was on his own frolic), the issue of the name of the co-staff is a moot one and needs not detain the Court�s attention.Needless to add that the claimant, vide his additional witness statement on oath of the same date (by oath), corrected the earlier error and established the identity of the operator as Mr Excellence. That the defence offered no further challenge of the claimant�s final position on the question of the identity of the operator when they had the opportunity of cross-examining the claimant�s CW.

38. On the issue of photographs, that the defendant�s contention that the Court should expunge Exhibits C7 and C7(a), photographs showing the claimant�s injured hands and also the forklift, is without basis. That the claimant testified in open court on 14th June 2019. That a suggestion by his counsel that he should raise his hand for the inspection of the court was brushed aside by the Court as unnecessary. That the Court�s discretion to choose the course it did is unquestionable. That the defence did not object to the tendering of the photographs as exhibits, nor did it challenge their relevance. That even if the defence decides belatedly to challenge the admissibility of Exhibits C7 and C7(a) on the ground that they are electronically generated evidence, it must bring that objection frontally on the basis of the provisions of section 84 of the Evidence Act 2011 with a specific allegation on which part of the provisions have been violated by their admission in evidence. That it is not the duty of the Court to presume the status of any particular document as electronic evidence. It is the duty of the party who alleges that documentary evidence is inadmissible to show why. That a bare submission that this Court should expunge Exhibits C7 and C7(a) at this stage in a civil proceeding where the relevance of both documents is unchallenged nor a case of miscarriage of justice established, is undue pandering to technicality.Furthermore, that this Court and has a duty to seek out the justice of every case that comes before it and to render it without being hampered by any technicality, citing Order 5 Rule 6(2) of the NICN Rules 2017.

39. That the Court may in its discretion and as a way of assuaging whatever concern the defence has about the authenticity of the photographs already admitted in evidence order the appearance of the claimant even at this stage for the purpose of inspecting, with a view to ascertaining the extent of the damage to the claimant�s hand. That the essence of tendering of the photographs is after all to establish the fact of the condition of the claimant�shand. That direct examination of the hand of the claimant by theCourt would be consistent with the best evidence rule. That the veiled suggestion that a hand other than the claimant�s was photographed and tendered in evidence is puerile and a gratuitous assault on the integrity of the claimant�s team.

40 For the allegation that the claimant�s reply to the statement of defence contained new facts, the claimant submitted that the allegation is unsubstantiated by the defence and untrue; and so undeserving of a reply.

41. The claimant concluded by asserting that the conduct of the defendant, a multi billion Naira construction giant in refusing to take care of the claimant in the light of the injury suffered in the line of duty on the defendant�s site is despicable. That in deciding the amount of damages payable to the claimant as compensation, the Court should take into account the following aggravating circumstances in the behaviour of thedefendant:

Whereas the injury to the claimant�s hand resulted from an accident over which neither party had control, what finally became of the claimant�s hand was avoidable with a little care from the defendant.
No reason was offered for the delay in referring the claimant to an orthopaedic facility despite the clear statement in Exhibit C6 that the phalanges of the claimant hand were multiply fractured and that orthopaedic evaluation was required.
For the kind of injury suffered by the claimant, the defendant could only permit the claimant hospitalization for three days.
A caring employer would have afforded the claimant more than three days of hospitalization in those critical first days of the accident, could also have moved him from his bed at Sama Polyclinic straight to an orthopaedic facility and would not have abandoned the claimant even if he expressed a preference for alternative medical cure. Chasing the claimant out of the hospital barely three days after the gruesome injury he suffered makes the defendant�s claim that the claimant refused orthopaedic treatment clearly self serving and dishonest.
The claimant is barely educated, and the only skill he trained for was as a mason and he has lost the capacity to work as a mason.
The refusal of the defendant to pay salary or any form of maintenance to the claimant in his present condition for over two years now provides a window into the mindset of the defendant as it were, about its touted history of caring for its employees.

42. Finally, that the claimant has proved his claim that he is entitled to the payment of compensation for the loss of the use of his hand in the course of his employment with the defendant, urging the Court so to hold.

THE DEFENDANT�S REPLY ON POINTS OF LAW

43. In replying on points of law, the defendant asserted that his counsel served the claimant�s counsel, Ike Njoku Esq, with a copy of the defendant�s final written address inside the courtroom on 7th November 20l9, and he acknowledged counsel to counsel service. That the said acknowledged copy by Ike Njoku Esq with signature, time and date was attached to the reply on points of law as Exhibit AA. The defendant hen submitted one issue for determination: whether the claimant can file his final written address outside the period prescribed by Order 45 Rules 9 and 10 of the NICN Rules 2017 without leave of Court. The defendant then submitted that the claimant�s counsel cannot file his final written address outside the period of 21 days without the leave of the Court, referring to Order 38 Rule 20(2) and (3) of the NICN Rules 20117. That the claimant in this case filed his written address after 51 days of service on him of the defendant�s final written address on 7/11/2020.Also, that Order 45 Rules 9 and 10 of the NICN Rules 20l7 provides that claimant files application for extension of time within which to file his final address at the expiration of 21 days but the claimant deliberately refused to comply with the Rules of Court. That Rules of Court are meant to be obeyed, citing Okorocha v. PDP[2015] EJSC Vol1page l at 7 andAfribank v. Akwara[2006] Vol 136 LRCN 1258 at1264.

44. It is also the submission of the defendant that where leave of court is required to be sought and obtained before taking any step it becomes a condition precedent before that step can be taken by any party, referring to Order 45 Rules 9 and 10 (supra), which required the claimant to seek for and obtain leave of court before filing his final address; NCC Ltd v. PMB Ltd [2012] Vol 212 LRCN 73 at 79, where the Supreme Court held thus: �it is worthy of emphasis that leave of court where it is required is a condition precedent�; and Odom v. PDP[2015] EJSC Vol 12 page 55 at 67. That it is trite law that a party cannot on its own be indolent to extend time within which to file a process without leave of court being sought and obtained first before filing same. In conclusion, the defendant submitted that the claimant filed his final written address on 8th January 2020 after 51 days of service and so the Court should invoke Order 45 Rule 12 (supra) against the claimant and foreclosed him and discontinuance with the worthless final address filed by him.

COURT�S DECISION

45. I have carefully considered the processes filed and the submissions of the parties. Some preliminary remarks are necessary. To start with, in the second paragraph of paragraph 2 of its written address, the defendant referred to Exhibit D21. There is no Exhibit D21 before the Court. What is before the Court is Exhibit D2(a).

46. The claimant in paragraph 8.03 of his written address referred to �https/thelawdictionary.org.accident� when he defined an accident. I tried accessing the website but to no avail. As written, it is a non-existent website.

47. The defendant raised the issue of the admissibility of Exhibits C7 and C7(a) and urged that they be rejected on the twin grounds that:

(2) Exhibits C7 and C7(a) have no negatives attached to them and there is no evidential foundation that there were digital photographs.

In answer, the claimant submitted that the objection of the defendant is belated. This cannot be. When the Court admitted the said exhibits during trial, it was �without prejudice to the right of the parties to raise in their final written addresses any issue as to admissibility and/or evidential value�. The claimant cannot, therefore, argue that the objection now raised by the defendant is belated.

48. Exhibit C7 is a photograph of the claimant with his left hand raised, which photograph was taken by the side of a forklift. Exhibit C7 shows the claimant�s bandaged left hand. I have no problem with the admissibility of Exhibit C7 since it is the picture of the claimant. Section 12 of the NIC Act 2006 allows this Court to do away with rules of evidence if the interest of justice dictates. The only issue left out is what weight to attach to Exhibit C7 in terms of what the claimant seeks of it to prove.

49. Exhibit C7(a) on its part is the picture of a hand with 4 fingers. The thumb is not even visible. On the day it was tendered by the claimant, the Court noted on the face of the exhibit that there is nothing on it showing that the hand belongs to the claimant. It could be anybody�s hand, since it has no nexus with the claimant. In Amaka Paula Aideloje v. GTL Registrars Limited unreported Suit No. NICN/LA/124/2016, the judgment of which was delivered on 16th July 2018, this Court rejected in evidence an exhibit that had no nexus with either the claimant or the defendant. Accordingly, since Exhibit C7(a) has no nexus with the claimant, I cannot consider it for purposes of this judgment. It is accordingly discountenanced. I so hold.

50. The defendant had submitted that the claimant�s reply to the statement of defence dated 8th October 2018 introduced new facts, which were not contained in the defendant�s statement of defence; and that a reply to the statement of defence is meant to address only facts contained in the statement of defence and not to introduce new facts or to correct mistakes contained in the claimant�s statement of claim, urging the Court to discontinuance all the new facts introduced by the claimant in his reply to the statement of defence. As argued by the claimant, the defendant did not tell the Court what these new facts are. His Lordship Ejiwunmi, JSC in Ughutevbe v. Shonowo & anor [2004] LPELR-3317(SC); [2004] 16 NWLR (Pt. 899) 300; [2004] 18 NSCQR 741 put the law thus: �…a plaintiff may file a reply to the statement of defence but such a pleading, not being a petition or summons, shall except by way of amendment, raise no new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same�. A claimant cannot in the name of a reply to the statement of defence seize the moment to introduce new facts since thereby the defendant would have no right of reaction. This is what the claimant did in his reply to the statement of defence when I read through it. For instance, in paragraph 1 of the reply to the statement of defence, the claimant purports to react to paragraph 4 of the statement of defence. Paragraph 4 of the statement of defence is a 3-lined paragraph; and it reads thus: �The defendant avers that the function of a Mason is only to maintain/plaster drainage channels after it has being (sic) dug and concrete/cement pulled on it by Helpers�. The claimant�s paragraph 1 of the reply is a 19-lined response. The defendant�s paragraph 4 is about the function of a Mason. The claimant�s reply in paragraph 1 aside from stating that beyond the claimant�s primary function of maintaining and plastering drainage channels, he also had the responsibility of undertaking such other tasks on the site as may be directed by his foreman. The claimant then went on to specify what happened on the particular day of the accident, details that he did not give as per paragraph 3 of his statement of claims. He also in paragraph 1 of the reply sought to correct the name of the forklift operator from Mr Confidence to Mr Destiny. The very details of the accident which should have been part of the statement of claims (to enable the defendant react appropriately) but were not so given by the claimant, were now given in the reply to the statement of defence. How is the claimant expecting the defendant to react to these details? I do not know.

51. The defendant raised the issue of the competence of the two statements on oath of the claimant. The claimant had under cross-examination testified that he signed his two depositions in Benin, at GRA in Benin. The defendant then submitted that by this testimony, the claimant�s two statements on oath were not sworn to before the Commissioner for Oath in any National Industrial Court (NIC) Registry in Nigeria. In consequence, that both are invalid and so there is no evidence before the Court to prove the claimant�s claims. In answer, the claimant submitted that his witness statements on oath enjoy a presumption of regularity having complied with the basic format for an affidavit or an oath as laid down in section 117 of the Evidence Act and the Oaths Act,and must be presumed to have been sworn to at the place and before the official indicated, relying onsection 111 of the Evidence Act.

52. Now, as admitted by the claimant himself, section 111 of the Evidence Act talks of prima facie evidence. This means that it is rebuttable. CW�s evidence under cross-examination i.e. �I signed the two depositions in Benin, at GRA in Benin�, is an admission that he did not sign the deposition at the NICN registry or before the Commissioner of Oaths of the NICN. The depositions show that the Commissioner of Oaths of the NICN in Abuja endorsed the depositions. But this proves nothing since it is not impossible that CW signed the depositions at GRA in Benin before it was brought to Abuja and endorsed by the Abuja Commissioner of Oaths of the NICN. The evidence of CW under cross-examination accordingly rebuts the presumption that the claimant�s counsel talks of i.e. that it was signed before an authorized person as endorsed. I so find and hold. The claimant�s counsel submitted that it will take more than a casual allegation that the claimant�s witness statements on oath were sworn to at GRA Benin City to move this Court to so hold, notwithstanding the alleged admission by CW. I must state that CW�s admission is not alleged. It is real and was heard by the Court. In paragraph 17 of the statement of claims, the claimant pleaded that he �lives in a tenanted apartment in Benin City�. So, when he said that he signed the depositions at GRA in Benin, was it implausible? I do not think so. The argument of the claimant that his admission as CW is alleged accordingly goes to no issue. For how can it be alleged when the admission is on the records, real and was heard as such by this Court?

53. Citing section 113 of the Evidence Act, which uses the word �satisfied�, the claimant�s counsel went on that the Court will only discountenance the use of an affidavit if �satisfied� that the oath was not administered before an authorised person; and the Court will only be satisfied on the basis of evidence, not conjecture, not suspicion. To my mind, CW�s evidence under cross-examination is sufficient evidence. It is not conjecture, nor suspicion. As such, I am satisfied with it in terms of section 113 of the Evidence Act; and I so hold. I am satisfied that CW�s evidence as to signing the depositions at GRA in Benin is positive evidence sufficient to prove the contrary of what is endorsed on the documents. The claimant�s counsel described CW�s evidence as �purported admission�. I already held it to be real, not purported. Counsel then described CW as a barely educated witness who as this Court may have observed on the 14th of June 2019 while in the witness box, was apparently confused about the questions put to him. The depositions in issue do not bear any illiterate jurat. So I do not know where counsel got this thing about CW being barely educated. CW said he signed the depositions in GRA Benin. The Court notes that when CW was asked under cross-examination to read out para. 6 of his deposition he did not because he couldn�t read it out. This means that the depositions were written for him by someone else and he was merely asked to sign it. Hence the signing of it in GRA Benin. What I see then is the attempt by counsel to the claimant, given his submissions, to salvage a situation already foisted on the claimant. I am satisfied that the depositions in issue were signed in GRA Benin, and not the NICN Registry. I so find and hold.

54. The position I just took has the support of newer case law authorities that the claimant�s counsel seems blind to, which authorities kick against swearing of depositions outside of the Court. In Muhammad & ors v. Gani [2019] LPELR-47190(CA), for instance, the evidence elicited was one under cross-examination, just like the instant case. This is how the Court of Appeal put it:

The 1st Appellant testified as DWI. He testified under cross-examination at page 128 of the record thus: “My lawyer read the statement to me in his office and I signed.�

The Court of Appeal then held thus: �This offends the requirement of the law as it was not sworn before the authorized person�. By this authority, the evidence elicited under cross-examination that the witness� lawyer read the statement to him in his office and he signed it was sufficient positive evidence for the Court of Appeal, just like I held the evidence of CW is sufficient positive evidence that he signed the two depositions in GRA Benin.

55. Additionally, the Supreme Court in Buhari v. INEC [2008] 12 SCNJ 1 at 91, actually held thus:

When a deponent swears to an oath, he signs in the presence of the Commissioner for Oaths who endorses the document authenticating the signature of the deponent. Signatures signed outside the presence of the Commissioner for Oaths fall short of the requirement of the statute and such document purported to be sworn before the Commissioner for Oaths is not legally acceptable in Court.

See also Onyechi Erokwu v. Jackson N. Erokwu[2016] LPELR-41515,Chidubem v. Ekenna[2009] All FWLR (Pt. 455) 1692 and Aliyu v. Bulaki [2019] LPELR-46513(CA). As it can be seen, the Supreme Court in Buhari v. INEC talked of �such document purported to be sworn before the Commissioner of Oaths�; the key word being �purported�. The depositions in the instant case were purported to have been sworn to before the Commissioner of Oath in NICN Abuja. The evidence of CW under cross-examination showed this to be incorrect despite that there is the signature of the Commissioner of Oaths of the NICN Abuja on it. What was brought before the NICN Abuja Commissioner of Oaths were merely already signed depositions. Accordingly, the argument of the claimant�s counsel as to admission of interest or that CW�s evidence that he signed the depositions in GRA Benin is not positive enough, all go to no issue. I so hold.

56. There is an additional pointer to the fact that someone wrote the depositions for the claimant and he uncritically appended his signature. In paragraph 3 of his statement of claims, the claimant said Mr Confidence was the co-staff who operated the forklift that injured him. He went on to depose in paragraph 6 of his statement on oath of 19th June 2018 to state that Mr Confidence was the forklift operator. Against this, the defendant in paragraph 5 of its statement of defence categorically stated that �there is no Fork Lift Operator Called MR. CONFIDENCE in the employment of the defendant as contained in the Statement of Claim�. In reacting to this, the claimant in paragraph 2 of his reply to the statement of defence of 8th October 2018 asserted that �the name of the folk-lift operator was MR. DESTINY, and not MR. CONFIDENCE and that the error was that of his counsel who settled his statement of claim. In paragraph 5 of his supporting additional witness statement on oath of 8th October 2018, the claimant changed the narrative a bit when he deposed thus:

The name of the folk lift operator is actually Mr. Destiny and not Mr. Confidence. I believe my lawyer misunderstood my story at the time I first related it to him (my emphasis).

57. Now, the claimant�s reply to the statement of defence reads that it was his counsel who made the error of putting Mr Confidence, instead of Mr Destiny, as the folk lift operator. If the claimant actually wrote and/or even read his statement of claims and statement on oath of 19th June 2018, would he not have noticed the error of counsel? Why did the claimant in his reply to the statement of defence state categorically that the error is his counsel�s but in the additional statement on oath he merely stated that he believes his lawyer misunderstood his story at the time he first related it to him? The law is that pleading without evidence goes to no issue just as evidence without pleadings also goes to no issue. See Ifeta v. SPDC [2006] LPELR-1436(SC); [2006] 8 NWLR (Pt. 983) 585 andThe Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129. So can paragraph 5 of the additional statement on oath as couched be the evidence in support of the pleading in paragraph 2 of the reply to the statement of defence? I do not think so; and so hold that it is not.

58. The argument of the claimant that there is a difference between an affidavit which is governed by the Evidence Act and a witness statement on oath which is regulated by the Rules of Court goes to no issue in view of the Supreme Court�s decision in Buhari v. INEC [2008] 12 SCNJ 1.

59. On the whole, I agree with the defendant that the claimant has no valid statements on oath to support his claim. This being so, the claimant has no evidence in support of his claim. On the score, the claimant�s case is liable to be dismissed; and is so dismissed.

60. Should I be wrong in holding that the claimant has no valid or competent statements on oath, I shall proceed to consider the case on its merit since lower courts are enjoined to do so should the matter proceed on appeal. To the defendant, however, paragraphs 3, 4, 5, 10, 11, 12, 17, 18, 19, 20, 24, 25, 26, 27 and 28 of the claimant�s statement on oath of 19th June 2018 are not supported by any averment in the statement of claim and, therefore, go to no issue. In reaction, the defendant submitted the following paragraphs as answering the defendant:

Paragraphs 3, 4 and 5 – pleaded at paragraph 1 of the statement of claims.

Paragraphs 10, 11 and 12 – pleaded at paragraphs 7 and 8 of the statement of claims.

Paragraphs 17, 18, 19, 20 – pleaded at paragraphs 9 and 10 of the statement of claims.

Paragraphs 24 and 25 – pleaded at paragraphs 13, 14 and 15 of the statement of claims.

Paragraph 26 – pleaded at paragraph 16 of the statement of claims.

Paragraphs 27 and 28 – pleaded at paragraph 17 of the statement of claims.

I read through these paragraphs. Except for paragraphs 27 and 28 of the statement of claims, which are at variance with paragraph 17 (the supporting evidence), I am satisfied that the argument of the defendant in this regard has no merit. Accordingly, I hold that paragraphs 27 and 28 of the statement of claims have no supporting evidence.

61. The claimant by paragraph 20 of his statement of claims has only one relief. And this is how the claimant put it:

WHEREUPON the Plaintiff claims form the Defendant the sum of Two Hundred and Fifty Million Naira (N250,000,000) as compensation for the permanent loss of the use of his hand for pain and suffering, and for loss of enjoyment of life.

Now the law is that a statement of claim supersedes the writ of summons. See Integrated Timber & Plywood Products Ltd v. UBN Plc [2006] LPELR-1519(SC), Chief J. O. Lahan & ors v. R. Lajoyetan & ors [1972] LPELR-1748(SC), Eze v. George [1993] 2 NWLR (Pt. 273) 86 and Teller v. Akere [1958] WNLR 26. Thus where there is a conflict between the reliefs claimed as per the complaint (writ of summons) and those in the statement of facts (claims), the reliefs indicated in the statement of facts (claims) are to be preferred over those in the complaint (writ of summons). See Jauro & anor v. Danmaraya [2016] LPELR-40328(CA) and Mr Omoniyi Osunsanya v. E – Motion Advertising Limited unreported Suit No. NICN/LA/457/2013, the judgment of which was delivered on 15th November 2016.

62. The claimant, therefore, has only one relief against the defendant: compensation for the permanent loss of the use of his hand for pain and suffering, and for loss of enjoyment of life. The Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47 held thus:

A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.

So if a claim is circumscribed by the reliefs claimed, the claimant�s case must be so circumscribed too. So the claimant�s case is one for compensation for injury in the workplace. The law today in Nigeria allows for certain ways in which compensation for injury at the workplace may be claimed: either under the common law tort of negligence; or under the Employees� Compensation Act (ECA) 2010; or under contract or some other statutory duty. See section 12 of the Employees� Compensation Act 2010. Of these ways, the claimant must elect only one. See Amina Hassan v. Airtel Networks Ltd & anor unreported Suit No. NICN/LA/471/2012 the ruling of which was delivered on 11th February 2015, Ola Suleiman v. Hongzing Steel Company Limited unreported Suit No. NICN/LA/73/2011, the judgment of which was delivered on 26th February 2015 and Mr Abonyi Agbo Geoffrey v. Dangote Agrosacks Limited unreported Suit No. NICN/LA/315/2013, the judgment of which was delivered on 7th December 2017.

63. Now, under which of these laws did the claimant come? None! Because throughout the claimant�s processes, no mention of the ECA 2010 or some other law imposing a statutory duty was made at all. The claimant neither sued in contract. Even if the claimant intended to make a claim under the ECA 2010, he can only come to this Court in its appellate jurisdiction since he must exhaust all the processes under the ECA 2010 before approaching this Court. In Mr Abonyi Agbo Geoffrey v. Dangote Agrosacks Limited, I held thus:

By sections 21 and 22 of the ECA, it is the NSITF Management Board that determines what is payable for permanent total disability (section 21) or permanent partial disability (section 22). It is when the claimant is not satisfied with the outcome of his claim under the ECA that he can appeal to this Court after exhausting all the appeal processes of the ECA.

There is no evidence that the claimant in the instant case has done that. So his only other option is a claim founded under the common law tort of negligence. But when the defendant said that the claimant�s case is founded in negligence, the claimant�s counsel denied it, making arguments that were tantamount to doublespeak. Since the claimant did not mention the ECA 2010, contract or some other statutory duty in all his processes, and arguments were made as to whether his case was founded in the tort of negligence, I shall restrict myself to only the arguments as to whether the instant case is founded in tort of negligence or not.

64. To the claimant,the defence counsel�s submission that the case of the claimant is based on the tort of negligence is baffling because at no point in the claimant�s pleading did the claimant state categorically that his case was based on the tort of negligence. The claimant, however, admitted that his injury arose from an accident that occurred in the course of his duty and at his place of work; but that mere proof of an accident does not amount to proof of negligence because not every accident can ground a successful claim in negligence. To the claimant, he has no burden to specifically plead or prove negligence because he did not bring his claim on the basis of the tort of negligence simplicita. Nor is it the law that in order to succeed in a claim for damages, a person who has suffered the type of injury and ill treatment he has complained of must bring his suit under the tort of negligence. However, that nothing stops this Court from inferring negligence from the facts pleaded and proved by the claimant where the facts justify such a finding. The claimant went on to submit that it is to avoid the hazards associated with strict proof of facts on which to erect a claim for damages founded on negligence that the courts have evolved the doctrine of �res ipsa loquitur�, meaning the thing speaks for itself.

65. So, if his case is not founded in negligence, what then is the claimant�s case? To the claimant�s counsel, the case of the claimant is that what led to his injury was an accident because neither he, the victim, nor the defendant (his employer) designed or foresaw it. That what the defendant did after the event leading to the loss of the use of his hand and whether the conduct of the defendant stands up to what a reasonable employer would have done in the circumstances is what the defendant must explain to this Court. That the burden shifts; and he does not have to specifically mention res ipsa loquitur in his pleading. The argument of the claimant�s counsel here sounds of doublespeak. Hear him: his client�s case is one of an accident but not in negligence; but the court can infer negligence if the facts permit. If the claimant�s case is not in the tort of negligence, why is counsel to the claimant saying that what the defendant did after the event leading to the loss of the use of the claimant�s hand and whether the conduct of the defendant stands up to what a reasonable employer would have done in the circumstances is what the defendant must explain to this Court. Is measuring the conduct of the defendant against other employers (counsel talked of �reasonable employer�) not part of the yardstick of negligence in the tort of negligence?

66. Counsel to the claimant talked of the claimant�s case being that what led to the claimant�s injury was an accident because neither he (the victim) nor the defendant (his employer) designed or foresaw it. If the claimant�s case is the accident he had (but the case is not one of negligence), since neither the claimant nor the defendant designed or foresaw the accident, is the claimant claiming in strict liability? Counsel to the claimant did not say. Certainly, if the case of the claimant is not one in strict liability, then it must be fault-based, which naturally is the tort of negligence. Whether in strict liability or fault-based liability, recovery is often upon the proof of the ingredients of liability. What are the ingredients upon which the claimant hinges his case? This Court has not been told.

67. To make matters worse, the claimant in paragraph 12.03 of his written address submitted in his conclusion that he �has proved his claim that he is entitled to the payment of compensation for the loss of the use of his hand in the course of his employment with the defendant�. What did the claimant prove? I really do not know. Is the claimant�s claim in contract or in tort? He did not say. I am aware of the Latinmaxim,ubi jus, ibi remedium, which means for every wrong, the law provides a remedy, although Promasidor (Nig.) Ltd & anor v. Asikhia[2019] LPELR-46443(CA) put it as�where there is a right, there is a remedy�. But the maxim presupposes the establishment of the wrong first. And here, Maitland�s aphorism i.e. the forms of action we may have abolished but they still rule us from their graves, is instructive. In paragraph 12.02 of his written address, the claimant indicated that his injury resulted from an accident over which neither himself nor the defendant had control. But that what finally became of his hand was avoidable with little care from the defendant. He then complained that the defendant permitted him to be in the hospital only for three days when a caring employer would have afforded more days. Moreover, that no reason was offered for the delay in referring him to an orthopaedic hospital. The claimant is here saying that the defendant is not to blame for his accident but is to be blamed for aggravating his injury in terms of post injury care. Is this i.e. post injury lack of care not a claim in negligence? I think it is.

68. Counsel to the claimant talked of the doctrine of res ipsa loquitur, and then submitted that aside from the burden shifting onto the defendant, he did not need to even plead the doctrine itself. Res ipsa loquitur is not an element of the ingredients of negligence; it is simply a rule of evidence. It is true that it need not be pleaded. See Royal Ade Nigeria Ltd & anor v. National Oil and Chemical Marketing Co. Plc[2004] LPELR-2959(SC); [2004] 8 NWLR (Pt. 874) 206; [2004] 18 NSCQR 334, referring to Okeke v. Obidife [1965] NMLR 113 and T. O. Kuti v. Tugbobo [1967] NMLR 419 at 422. But where the cause of the accident is known the doctrine of res ipsa loquitur does not even apply. See Royal Ade Nigeria Ltd & anor v. National Oil and Chemical Marketing Co. Plc(supra), relying on Bolton v. Stone[1951] AC 850, Odebunmi v. Abdullahi [1997] 2 NWLR (Pt. 489) 526, Management Enterprises Ltd v. Otusanya [1987] 2 NWLR (Pt. 55) 179,Ibekendu v. Ike [1993] 6 NWLR (Pt. 299) 287 at 297 and Babatunde Ajala v. Rite Pak Company Limited unreported Suit No. NICN/LA/432/2013, the judgment of which was delivered on 28th January 2019 at paragraph 35.

69. The attempt by the claimant to shift the burden of proof in terms of his argument in paragraphs 8.10 and 8.14 of his written address must fail as the burden remains on him to prove his case. The submission of the claimant that it is the responsibility of the defendant to explain to this Court that it did what a reasonable corporate organization in its position could have done for its employee who incurred the kind of injury that the claimant incurred while engaged in the normal course of his duty goes to no issue as the burden of proof remains on the claimant. His case will fail if he provides no proof as to the defendant being the cause of his injury and the cause of the injury aggravating to the level he complains of. The doctrine of res ipsa loquitur cannot avail him here since the cause of the accident was vividly narrated in paragraph 3 of his statement of claims thus:

On the 23rd day of August, 2017, the Plaintiff who was engaged in routine work at the site of the Defendant had the 2nd, 3rd, 4th and 5th fingers of his right hand crushed by the giant folk lift operated by his co-staff, one Mr. Confidence with whom he was undertaking a task.

Royal Ade Nigeria Ltd & anor v. National Oil and Chemical Marketing Co. Plc, cited by the claimant�s counsel, itself held that: �Reliance on the doctrine of res ipsa loquitur is thus a confession by the plaintiff that he has no direct and affirmative evidence of the negligence complained of against the defendant but that the surrounding circumstances amply establish such negligence�. The story of the claimant in his pleadings and depositions do not suggest that there is no direct and affirmative evidence of negligence to warrant a look at the surrounding circumstances. With his story, res ipsa loquitur has no application to the claimant�s case. I so hold.

70. Whether in terms of the accident itself or the aggravating circumstances as to his post-injury situation, I have no doubt whatsoever that the claimant�s case is one founded in negligence; for which he must prove the trilogy of duty, breach and resultant damage so as to be entitled to the compensation he claims. This being so, can the claimant be said to have proved his case for compensation? The defendant first argued that the claimant did not even supply the particulars of negligence in his pleadings. The claimant�s reaction to this submission was that his case is not in negligence. I already held that it is. The requirement that a claimant must give particulars of negligence in an action for negligence is one that case law authorities acknowledge. See, for instance, Diamond Bank Ltd v. Partnership Investment Co. Ltd & anor [2009] LPELR-939(SC); [2009] 18 NWLR (Pt. 1172) 67 SC, PW (Nig.) Ltd v. Mansel Motors Ltd & anor [2017] LPELR-43390(CA) and Babatunde Ajala v. Rite Pak Company Limited (supra). However, it is not necessary that the particulars of negligence to be given must be in a separate part of the pleadings headed, �Particulars of Negligence�. So long as what makes up the negligence is given in the pleadings just so that the defendant knows what he must defend, the requirement of particulars of the negligence complained of would have been met. See Babatunde Ajala v. Rite Pak Company Limited (supra). So, what can be distilled from the pleadings of the instant case as the particulars of negligence? I really cannot say. On this score, I hold in favor of the defendant that the claimant supplied no particulars of negligence.

71. The defendant went on that the claimant did not prove the ingredients of his case in negligence. For instance, that in an attempt to prove that the forklift was negligently operated by the operator, the claimant gave different names of the operator. That in the solicitor�s letter frontloaded along with the complaint, he gave the name as Mr Excellence, while in his statement of claim in paragraph 3, he gave the name of the operator as Mr Confidence; but in another breath in paragraph 1 of his reply to the defendant�s statement of defence, he gave another name of same operator as Mr Destiny. I already alluded to this fact in showing that the claimant did not even write, read or know the details of his pleadings and depositions. And it all goes to show that the claimant cannot pin negligence on the defendant as he seeks to do.

72. There is an additional point. In paragraph 3 of the statement of claims, the claimant pleaded that he �was engaged in routine work at the site of the Defendant� when his 2nd, 3rd, 4th and 5th fingers of his left hand were crushed by the giant forklift operated by his co-staff, one Mr Confidence. Where is the location of this site? This was not pleaded. But in paragraph 6 of the statement on oath of 19th June 2018, the claimant put the location of the site as Benin City, Edo State. Referring to Ifeta v. SPDC [2006] LPELR-1436(SC); [2006] 8 NWLR (Pt. 983) 585 andThe Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129, I indicated earlier that the law is that pleading without evidence goes to no issue just as evidence without pleadings also goes to no issue. What this means is that the evidence of the location of the site, where the claimant got injured, has no supporting pleading and so has to be discountenanced for purposes of this judgment. I so hold and do.

73. There is something about the presentation of the case of the claimant by his counsel, Ike Njoku Esq. I do not know whether counsel went through the Rules of this Court. First he filed a �statement of claim�, when what the Rules talk of is a �statement of facts�. Then all through his submissions, he referred to the claimant as �plaintiff� when the Rules of this Court talk of �claimant�. I do not know whether counsel cannot extricate himself from the hangover of his practice in the High Courts. Ours is a specialized court. Counsel ought to know that.

74. Then there is the issue of the claimant�s counsel�s submissions in paragraphs 2.27 and 2.28 of the claimant�s final written address. This is what counsel wrote:

2.27 The plaintiff in the course of his testimony on 14/06/19 apparently misunderstood questions put to him about where he swore to his witness statements on oath answered that he signed documents at GRA Benin City.

2.28 Two subsequent applications brought on his behalf to correct this error and to permit an amendment of his pleadings to itemise and bring in his claim for unpaid salary of N900,000 as special damages appear to have attracted the ire of this court which dismissed both applications with punitive costs in the sum of N100,000 each, totalling two hundred thousand Naira. One of those applications was not challenged at all by any counter affidavit. The other was responded to via an affidavit which did not qualify as a counter affidavit because it never challenged an iota of the averments in the main affidavit. It was the view of this court in its Rulings of 6/11/19 that both applications were trying to build a new cause of action and were aimed at overreaching the Defendant.

75. Under cross-examination, the testimony of the claimant (as CW) was this: �I signed the two depositions in Benin, at GRA in Benin�. There was no re-examination by counsel as the testimony of CW admitted of no ambiguity as to elicit any. Yet in paragraph 2.27 of the claimant�s final written address, his counsel would write that the claimant misunderstood questions put to him about where he swore to his witness statement on oath. Is counsel now giving evidence in a written address or what? While the claimant was being cross-examined I actually noted thus in the record of proceedings of the day:

[on the question, what are the duties of a mason, CW answered in an incoherent and incomprehensible language.]

[CW is asked to read out para. 6 of his deposition but he couldn�t read it out.]

76. This is the witness counsel put forward to prove the claimant�s claim for compensation. And this is the witness counsel took brief from before making his case only a case for compensation; only to come after the close of trial and addresses ordered, to file for an amendment of the originating processes and re-open trial so that the claimant will claim for unpaid salary. The claimant�s statement of claims has only one paragraph, paragraph 16, which states: �The Defendant without formally terminating the employment of the Plaintiff has stopped paying salary or any form of maintenance allowance to the Plaintiff�. Nothing else on this! Considered rulings were delivered by this Court when the two motions filed by the claimant to allow him re-open his case were moved and dismissed by this Court on 7th November 2019, not 6/11/19 as the claimant�s counsel put it. If the claimant�s counsel had any issue with the rulings of 7th November 2019, he should go on appeal not re-open the issue in terms of his submission as per paragraph 2.28 of the claimant�s final written address. Imagine the counsel to the claimant complaining that one of the motions was even unchallenged. And that the other motion was responded to via an affidavit which did not qualify as a counter-affidavit because it never challenged an iota of the averments in the main affidavit. Is there a rule or law that says an unchallenged motion must be granted by the Court? In complaining as he did in paragraph 2.28, does counsel not know that the Court is functus officio? Is counsel expecting this Court to re-open this issue? I really do not know.

77. Counsel delimited the case of the claimant to only a claim for compensation for his post-injury problems. The case went to trial, witnesses were taken, both counsel closed their respective cases, and addresses were ordered by the Court. Only then did counsel for the claimant apply to amend the claimant�s originating processes and then re-open the claimant�s case. His two motions were dismissed. And he is now complaining that the claimant was shut out by this Court. When counsel debriefed his client, the claimant, about his case, did the claimant not tell him that he had an unpaid salary of N900,000? Paragraph 16 of the statement of claims which talked about unpaid salary did not even state the figure, N900,000. Paragraph 26 of the statement on oath of 19th June 2018, which is the evidence of nonpayment of salary, simply states: �The Defendant has stopped paying me any form of salary, allowance or maintenance cost�. The figure, N900,000, is not stated therein. Was it after the close of trial and addresses ordered that the claimant wants to bring in all of this? Counsel ought to know that his inadvertence is not a universal talisman. AsIroegbu v. Okwordu [1990] 6 NWLR (Pt. 158) 643 and Erinfolabi v. Oke [1995] 5 NWLR (Pt. 395) 296 put it, the rule which enjoins courts not to visit the inadvertence or mistake of counsel on the litigant is not intended to be a universal talisman the waiver of which will act as a panacea in all cases. Before the plea is accepted, the court must not only be satisfied that the allegation of fault of counsel is true and genuine, but also that it avails having regard to the circumstances of the particular case. Counsel chose the path he did and so must bear the risks and adverse consequences.

78. In paragraph 8.17 of the final written address, the claimant�s counsel would submit that �even now, thiscourt has power to order the physical appearance of the claimant to lay to rest every question about the nature of his injury and where the treatment he received has left him�, urging �that it is in the interest of justice that this court so directs�. And I ask, why should the Court do this?

79. On the whole, it cannot be said that the claimant has succeeded in proving his claim for compensation either in negligence or under some other law. If his claim were in contract, he would have had to show to this Court how he came by the sum of the N250 Million he claims. Even in negligence, he must show how his damage warrants the said sum. All of this, he did not do. I accordingly hold that the claimant has not proved his case for compensation in this suit.

80. For the avoidance of doubt, my holding is that there is no valid or competent depositions to support the case of the claimant; and so the claimant�s case is liable to be dismissed on that score; which I so do. In the event that I am wrong in so holding, on the merit of the case, I hold that the claimant did not succeed in proving his case for compensation, either in negligence or otherwise. The claimant�s case accordingly has no merit and is hereby dismissed.

81. The award of cost is entirely at the discretion of the Court. But as it is often said, cost follows the event in litigation. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC),Anyaegbunam v. Osaka [1993] 5 NWLR (Pt. 294) 449 and Obayagbona v. Obazee [1972] 5 SC 247. Accordingly, cost is put at Two Hundred and Fifty Thousand Naira (N250,000.00) only payable by the claimant to the defendant within 30 days of this judgment. This sum is in addition to the costs already awarded against the claimant during the hearing/pendency of this case.

82. Judgment is entered accordingly.

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Hon. Justice B. B. Kanyip, PhD