GRINAKER L.T.A. CONST. COMPANY LIMITED V. SAMPSON IKQUOT
(2011)LCN/4449(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of April, 2011
CA/PH/251/2007
RATIO
PLEADINGS: WHETHER FACTS ADMITTED BY THE PARTIES IN THEIR PLEADINGS NEED TO BE PROVED
By dint of section 75 of the Evidence Act no fact need be proved in any civil proceedings which the parties thereto or which their agents by any rule of pleadings in force are deemed to have admitted by their pleading. See OBIKOYA v. WEMA BANK LTD (1989) 1 NWLR (pt.96) 157. PER EJEMBI EKO, JCA
INTERFERENCE WITH FINDINGS OF FACT: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACT MADE BY THE TRIAL COURT
The practice is that the appellate court will not interfere with any finding of facts made by trial court unless such findings of fact are shown to be perverse and not supported by evidence on the Record. See OGIDI v. THE STATE (2003) 9 NWLR (pt.824) 1; AJIBULU v. AJAYI (2004) 11 NWLR (pt.885) 458. PER EJEMBI EKO, JCA
STATUTORY PROVISION: PROVISION OF THE OF THE FACTORIES ACT AS TO THE CONDITIONS THAT MUST BE COMPLIED WITH IN OPERATING A MACHINE IN A FACTORY AND ENSURING THAT WORKERS THAT ARE EMPLOYED IN ANY PROCESS INVOLVING EXCESSIVE EXPOSURE TO WET OR TO INJURIOUS OR OFFENSIVE SUBSTANCE WEAR PROTECTIVE AND APPLIANCE
17(1) Every dangerous part of any machinery, other than the prime movers and transmission machinery, shall be securely fenced unless it is in such a position or of such construction as to be safe to every person employed or working on the premises as it would be if securely fenced, provided that in so far as the safety of a dangerous part of any machinery can not by reason of the nature of the operation be secured by means of a fixed guard, the requirements of this sub-section shall be deemed to have been complied with if a device is provided which in the opinion of the Director of Factories satisfactorily protects the operator or other persons from coming into contact with that Part. 23. no person shall be employed at any machine or in any process, being a machine or process liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed, and a. has received a sufficient training to work at the machine or in the Process; or b. is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process. 47. where in any factory workers are employed in any process involving excessive exposure to wet or to injurious or offensive substance, suitable protective clothing and appliances, including, where necessary suitable gloves, footwear, goggles and head coverings, shall be provided and maintained for the use of such workers. PER EJEMBI EKO, JCA
FACTORIES ACT: WHETHER THE PLAINTIFF HAS TO PROVE THAT THE BREACH OF STATUTORY DUTY BY THE DEFENDANT WAS THE SOLE CAUSE OF HIS INJURY UNDER THE FACTORIES ACT; PURPORT OF THE FACTORIES ACT
The plaintiff does not have to prove that the breach of statutory duty by the defendant was the sole cause of his injury see BONNINGTON CASTINGS LTD V. WARDLAW (1956) AC 613. It must be noted that the Factories Act is intended for the protection and benefit of workers and it confers a right of action for its breach. See CUTLER. V. WANDS WORTH STADIUM LTD (1949) AC, 398 citing GROVES v. LORD WIMBORNE (1898) 2 QB 402 at 406. The right of action thus conferred is distinct from negligence see LONDON PASSENGER BOARD V. UPSON (1949) AC. 155 at 168. PER T.O. AWOTOYE J.C.A.
INTERFERENCE WITH FINDINGS OF FACT: WHETHER THE APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACT MADE BY THE TRIAL COURT FOUND TO BE UNIMPEACHABLE
The findings of fact made by the trial court are unimpeachable and this court cannot interfere with them. See OGIDI v. THE STATE (2003) 9 NWLR (PT. 824) 1, SHITTU v. EGBEYEMI (1996) 6 NWLR. (PT. 457) 650. PER T.O. AWOTOYE J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
GRINAKER L.T.A. CONST. COMPANY LIMITED Appellant(s)
AND
SAMPSON IKQUOT Respondent(s)
EJEMBI EKO, JCA (Delivering the leading judgment): The Appellant, a multinational company with South African Management, is a construction company. Not satisfied with the judgment of the Rivers State High Court (Coram: J.M. Kobani, J) directing the Appellant to pay N1,000,000.00 as general damages to the Respondent, a Nigerian and a carpenter, it lodged its notice of appeal on 6th February, 2006 with six (6) grounds of appeal.
Out of the 6 grounds of appeal, two (2) issues for determination have been formulated by the Appellant and the Respondent. They are:
1. Whether the learned trial Judge was right when he held that the Respondent had established that he was a staff of the Appellant at all times material to this case.
2. Whether the learned trial Judge was right when he held the Appellant liable for breach of Factories Act in the absence of pleading and evidence led as to defect in equipment and inadequacy of safety device.
The Respondent was the plaintiff at the trial court. The Appellant was the defendant. For ease of reference the Respondent and the Appellant shall hereinafter be referred to respectively as “the Plaintiff” and “the Defendant”.
According to the Defendant –
-the plaintiff was one of the labours supplied to the Defendant by Mr. Abuking Eddebe, carrying on business under the name and style of Budullatra Services, and as one of the labour supplied to the Defendant it became incumbent upon the staffers of the Defendant to supervise the Plaintiff.
The Plaintiff worked directly under the supervision of Mr. Mike, a South African expatriate staff of the Defendant. The site Manager, another expatriate staff, was Mr. Steve. The Plaintiff, in the pleadings, averred that he was interviewed for the Job, as a carpenter, by Mr. Steve and that he was accordingly employed, and further that when he demanded for and letter of employment Mr. Steve told him that “his letter of employment and confirmation will be given to him after six months”. The plaintiff rendered services to the Defendant until 20th November, 2002 “when he was involved in an industrial accident”. He was seriously injured. His lower lip was lacerated. His jaw bones were fractured. He lost six teeth instantly with four of them pulled off and the remaining two broken. The injury also affected his ear drums.
The cause of the injury, as pleaded by the Plaintiff, was that while he was construing a kicker on the instruction of Mr. Steve, Victor Bassey (DW.1) brought some wood and requested the Plaintiff to cut them for him using the machine that was already on. The Plaintiff was measuring the kicker for construction. All these were happening on the machine that had already been put on. Paragraph 11 of the statement of claim avers that –
11. As the plaintiff was measuring a kicker wood on the machine for construction, Victor, unknown to the Plaintiff put a wood in the machine and the machine “collected” the wood and fractured the jaw of the Plaintiff, pull out four teeth with two other broken which also affected the Plaintiff’s ear drum.
The Defendant’s reaction to paragraph 11 of the statement of claim is in paragraph 9 of the amended statement of Defence. It is as follows –
9. In further contention to paragraphs 9, 10 and 11 of the statement of claim, the Defendant shall contend that the said Victor Bassey was a co-worker to the Plaintiff and both the Plaintiff and Victor Bassey were working for Abuking Adebe, a sub-contractor, to the Defendant and that the (sic) Victor Bassey’s and Plaintiff’s names were in the certificated now 10 and 12. At the trial of this suit, the Defendant shall rely on the certificates nos 10 and 12 to establish this fact.
The amended statement of defence, though admitting that the Plaintiff, like Victor Bassey, was one of the labours supplied to the Defendant in Novotel Site as an carpenter in May 2002, was significantly silent on the fact, as pleaded by the Plaintiff, that Mr. Steve asked the Plaintiff to prepare or construct a kicker using the machine, that the machine was on when Victor Bassey came with other pieces of wood and requested the plaintiff to cut them for him using the same machine and further that it was in the process of the Plaintiffs distraction that the machines collected the wood on it and thereby violently hitting the Plaintiff on the jaw. The Defendant also did not think that they owed any persons including the labour supplied them by Abuking Edebe (a.k.a. Budallatra Services), a duty of care either while they are at their site or working on any machine thereat. The main pre-occupation of the amended statement of defence was the strenuous denial or disclaimer of the Plaintiff as their employee.
It is obvious from the pleadings that the Defendant admitted that the Plaintiff was at the Defendant’s premises at the material time and that he was given a job of constructing a kicker for the Defendant using machinery at the said premises. The Plaintiff averred that Mr. Steve, the Site Manager of the Defendant, instructed him to construct a kicker using the machine that had already been put on. All that the Defendant had to say on this is that the plaintiff, a carpenter, “was a skilled worker” and “one of the labours supplied” to them by Bullatra Services and that as such it was “incumbent upon the staffers of the Defendant to supervise the plaintiff.” The Defendant, however, did not plead how their “staffers” supervised the plaintiff in the use of the machine when Mr. Steve gave the plaintiff the job of constructing a kicker using the machine that day. There was also nothing from the amended statement of defence suggesting what measures the Defendant adopted for the security or safety of those using the machine or machinery and even those having any contact with such machine or machinery.
For the resultant injury comprising a fractured jaw, lacerated lower lip and the subsequent suture, the four teeth pulled out and the two teeth broken, the facial disfigure and the problem with both ear drums the Plaintiff claimed against the Defendant the sum of Fifty Million (N50,000,000.00) Naira. The Defendant did not dispute these injuries sustained by the Plaintiff. They also did not deny the Plaintiff’s account of the cause of the injuries. My understanding of their defence is that both the Plaintiff and Victor Bassey were not employees of the Defendant at the material time and that they deny liability for whatever negligence of the said Victor Bassey that may have caused the injuries sustained by the Plaintiff. The defence evidence laid the blame for the accident on Victor Bassey.
The Plaintiff testified as PW.1. He called as witness Ikechukwu Mgbemene (PW.2), the photographer. The Plaintiff also tendered several documents. The Defendant called two witnesses. The DW.1 was Victor Bassey. The DW.2 was one Bruce Akpori who claimed that he was the Defendant’s administrative officer. At the close of the evidence counsel on both sides put in their final addresses. Chief Asaboro for the Defendant formulated five or so issues for determination by the trial court as follows –
1. Whether plaintiff was an employee of the defendant?
2. (a) whether DW.1 (Victor Bassey) was an employee of the defendant at all times material to the case?
(b) Whether the defendant owed a duty of care to the plaintiff, and if so, whether that duty was breached by the defendant.
3. Whether the defendant is vicariously liable to the plaintiff,
4. Whether the plaintiff, from the state of pleadings and evidence led, has established negligence against the defendant for him to be entitled to the damages claimed in this case?
5. Whether the plaintiff has established the claim for the award of N50m as general damages by virtue of his pleadings and evidence.
Neither the Plaintiffs immediate supervisor, Mr. Mike, nor Mr. Steve, the site manager of the Defendant, testified.
In his considered judgment the learned trial Judge found as of fact that the Plaintiff was an employee of the Defendant. The learned trial Judge also found that the Defendant, contrary to the provisions of the Factories Act, failed to give sufficient instructions and training to the plaintiff in the use of machine when they deployed the Plaintiff to work on it and that he was also not given adequate supervision. He further found that the Defendant, when they deployed the Plaintiff to work on the machine, did not show that they had provided suitable protective covering to the Plaintiff. In otherwords, the learned trial Judge found that the Defendant did not discharge the burden of showing that at the time they deployed the Plaintiff to work on the machine they had ensured his security and safety by using the machine. The learned trial Judge, upon his finding that the plaintiff was an employee of the Defendant, invoked the provisions of sections 23 and 47 of the Factories Act; and held that the failure of the Defendant’s statutory duty to the Plaintiff resulted in the injury to the Plaintiff.
One of the issues argued in the Appellant’s brief, settled by Chief B.O. Asaboro of counsel, is whether the trial court was right when it held that the Plaintiff, the present Respondent, was an employee of the Defendant/Appellant. In arguing that the trial court was wrong in so holding Appellants counsel highlighted three findings made by the trial court. They are –
1. The affirmation of the evidence of the Plaintiff/Respondent to the effect “that on 22nd January, 2003, Mr. Steve gave (the Plaintiff) his appointment letter to sign for but he (the Plaintiff) refused when he saw that it was not back-dated to May, 2002 when he started work.” – page 170 lines 16 – 19 of the Record.
2. That the treatment the Plaintiff received for the injuries at the instance of the Defendant/Appellant has a bearing on his status as an employee.
3. The finding by the trial court, at page 178 of the Record that the Plaintiff protested the payment of his May and June 2002 salaries through the sub-contractor, Budullatra Services and he was subsequently paid in full his monthly salary of N35, 000.00 instead of N26, 000.00 paid through the sub-contractor. And that thereafter he was paid his salaries directly and in full until the “accident” happened in November, 2002. The trial court held that while the Plaintiff pleaded and adduced credible evidence on this the Defendant/Appellant merely put up “bare denials” and that they “did not adduce any evidence as to what happened to the Plaintiff’s salary after June” (2002).
I have read the Record and painstakingly considered the submissions of both counsel on this issue. The Appellant’s counsel was right, in law, when he submitted, on authority of EDILCO (NIG) LTD v. U.B.A. PLC (2000) FWLR (pt.21) 792, that uncontroverted or uncontradicted facts are deemed to have been admitted.
The issue of Mr. Steve, in January 2003 bringing a letter of appointment with effect from January 2003 to the Plaintiff to sign for and the Plaintiff refusing to sign the letter was averred in paragraphs 26 and 27 of the Plaintiff’s pleading as follows –
26. Plaintiff avers that on 22nd day of January 2003 Mr. Steve invited Plaintiff to sign for his appointment letter,
27. Plaintiff avers that he refused to sign the said letter because his date of employment was made to take effect from January 2003
Against this averments the Defendant, the appellant, merely stated in paragraphs 19 and 20 of the Amended Statement of Defence that –
19. The Defendant denies paragraphs 22, 23, 24, 25, 26 and 27 of the statement of claim. The true position is that the Defendant has no privity of contract with the Plaintiff much less, discussing anything about salary with the Plaintiff.
20. In further answer to paragraphs 22, 23, 24, 25, 26 and 27 (of the statement of claim), the Defendant shall contend at the trial of this suit that she did not any time invite Plaintiff to discuss with its lawyer.
I do not think that the Defendant has, by paragraphs 19 and 20 of the amended statement of Defence, traversed the direct and positive averments made by the plaintiff in paragraphs 26 and 27 of his statement of claim. These facts having not been traversed are deemed, by the rules of practice on pleadings, admitted. By dint of section 75 of the Evidence Act no fact need be proved in any civil proceedings which the parties thereto or which their agents by any rule of pleadings in force are deemed to have admitted by their pleading. See OBIKOYA v. WEMA BANK LTD (1989) 1 NWLR (pt.96) 157.The plaintiff, earlier in paragraph 6 of the statement of claim, had pleaded that he was interviewed for appointment by Mr. Steve, the site Manager, and was employed by the Defendant. And that the said Mr. Steve, when he demanded for letter of employment, told him “that his letter of employment and confirmation will be given to him after six months.” This was in May, 2002. He was involved in the “accident” in November 2002. The Defendant denied this fact in paragraphs 6 and 7 of the amended statement of Defence. This fact was verified on oath by the Plaintiff, testifying as PW.1, at page 87 of the Record. He was cross-examined and was not discredited on this. The defence did not call any witness, including Mr. Steve, to discredit this evidence. In my judgment the Plaintiff had discharged the burden of proving the averment in paragraph 6 of the statement of claim. The inescapable conclusion from these facts is that the Defendant’s site manager, Mr. Steve, interviewed the Plaintiff for employment in May 2002 and the plaintiff was accordingly employed. The plaintiff demanded a letter of employment and Mr. Steve assured him that he would be issued the letter of employment and confirmation after 6 months. The Plaintiff’s evidence at page 87 of the record shows that he was employed on 16th May, 2002 and he started working immediately with the Defendant. The Plaintiff testified, uncontradicted, further that the aim of Mr. Steve giving him a letter of employment with effect from January 2003, two months after the accident in November, 2002 was an attempt by the Defendant to dodge responsibility for the injuries he sustained in November 2002.
Mr. Steve, a very material witness, did not testify. The DW.2, said to be the Defendant’s administrative manager, who testified on whether the plaintiff was an employee of the Defendant, did not impress the court and his evidence was dismissed, at page 180 of the Record, as “bare denials – compounded by outright prevarication”. The Appellant did not complain about this finding of fact. The finding stands against the Appellant and remains binding on it.
The practice is that the appellate court will not interfere with any finding of facts made by trial court unless such findings of fact are shown to be perverse and not supported by evidence on the Record. See OGIDI v. THE STATE (2003) 9 NWLR (pt.824) 1; AJIBULU v. AJAYI (2004) 11 NWLR (pt.885) 458. The trial Court’s finding that the plaintiff, at all material times, was an employee of the Defendant is unassailable. It is not perverse. It is supported by evidence on the record. From the pleadings and evidence the trial court came to a right decision on the issue.
I found earlier that the averments of the Plaintiff in paragraphs 19 and 20 of his pleading that on 23rd January, 2003 Mr. Steve gave him a letter of appointment with effect from January 2003 to sign for, which letter the Plaintiff refused to sign, was not traversed. That fact by dint of section 75 of Evidence Act is an admitted fact which needs no further proof. The Plaintiff, as PW.1, testified that “since 23 January 2002 when (Mr. Steve), the white South African called me to sign for the letter and I refused he said I was no longer an employee of the company and since then I left the company.” I do not think that the Appellant was on firm ground when it was submitted that the trial court was wrong in findings at pages 170 and 171 of the Record that this Defendant/Appellant’s conduct subsequent was an affirmation that the Plaintiff was their employee. No employer sacks staffs who is not his employee. The Defendant/Appellant, through callous intimidation or arm twisting, was trying to get the Plaintiff to sign away his rights against the Defendant.
The Plaintiff had consistently protested any attempt by the Defendant to make him an employee of the sub-contractor, Budullatra Services, and not a direct employee of the Defendant. He averred inn paragraphs 16, 17 18 and 19 of the statement of claim that for his June 2002 salary he was paid N26, 000.00 instead of N35, 000.00, through the sub-contractor and he protested, insisting that he was an employee of the Defendant, and not the sub-contractor. And that following that protest the Defendant paid him his full salaries directly thereafter. Defendant/Appellant’s response to this is that “the plaintiff was one of the labours supplied to the Defendant” by Budullatra Services. The Plaintiffs evidence on this protest and his victory is at page 101 of the Record. The trial cour t, upon evaluation of the totality of the evidence preferred this evidence to that of the DW.2, the Admin. Manager of the Defendant. The DW.2’s evidence on this at page 132 of the Record is either that he is not aware of any protest or merely that he is not being truthful. This evasive evidence did not at all impress the trial court and it dismissed it as DW.2’s “apparent business in court was to deny the undeniable.” Clearly, he was not a witness of truth.
The plaintiff was an employee of the Defendant at all material times until January 2003. The trial court was right in so finding. The first issue formulated by the Appellant is hereby resolved against the Appellant in favour of the Plaintiff/Respondent.
The second issue is whether the trial Judge was right when he held the Appellant liable for breach of Factories Act in absence of pleadings and evidence led as to defect in equipment and inadequacy of safety device? Let me put it in otherwords. Did the Plaintiff not plead facts and lead evidence that could lead to any inference or conclusion that the Defendant did not provide adequate security measures to any user of the machine or machinery through the use of which the Plaintiff was injured?
At the close of the evidence, the Defendant through their counsel, raised several issues at pages 134 and 135 of the Record that suggest that they seem to know their duty of care to ensure the security of the body or persons of whoever operated the machinery or came in contact with the machine, which the Plaintiff was asked to work with. The issues formulated are as follows –
1. whether the DW.1 (victor Bassey) was an employee of defendant at all material times?
2. whether the defendant owed a duty of care to the Plaintiff, and if so whether that duty was breached by the defendant.
3. whether the defendant is vicariously liable to the plaintiff.
4. whether plaintiff, from the state of the pleadings and evidence led, has established negligence against the defendant for him to be entitled to the damages claimed in the suit.
At the trial court (page 141 of the Record) the contention of the defendant was that the plaintiff had failed to establish that the defendant was negligent or that he (the plaintiff) was injured by virtue of any negligent act/omission of the defendant. The substance of the submissions of the defendant, at the lower court and here, is that the plaintiff’s pleadings and evidence did not justify the finding by the trial court that the injuries suffered by the plaintiff were caused by any defect in the equipment or machinery and inadequate safety device in the use of the machine or machinery operated that day by the plaintiff.
The summary of the Appellant’s contention on this issue is that the plaintiff did not plead any defect in the appellant’s equipment used by the plaintiff nor did he plead any inadequacy of the safety device in compliance with the Factories Act. It is also submitted that the plaintiff, also, did not produce any evidence as to the defect of the equipment and any inadequacy of the safety device. Appellant then submits, on authority of FATOBA v. OGUNDAHUNSI (2003) FWLR (pt.154) 561 and P.N. UDDOH TRADING CO. LTD V. SUNDAY ABERE (2001) 5 SC (pt .2) 64, that address or submission of counsel will not take the place of evidence, no matter how beautiful it may be. It is further submitted that the trial court was wrong in holding that the Appellant was in breach of her statutory duty to the plaintiff under sections 23 and 47 of the Factories Act, which breach resulted in the injury to the plaintiff.
For the Respondent E.T. George, Esq. of counsel submits that the Factories Act, particularly sections 17 and 23 thereof, imposes statutory obligations, that any employer who fails to carry them out is strictly liable for any injury suffered by the employee who used the machine and that there is no requirement on the injured worker to prove negligence as he would have under Common Law. In considering whether the machinery is dangerous the test, according to the Plaintiff/Respondent, is not the assumption that every body will be always be careful but rather, it must be assumed that sometimes somebody will be careless. For this a number of English authorities including WALKER v. BLETCHLEY FLETTONS LTD (1937) 1 ALL E.R. 170 and CLOSE v. STEEL CO. OF WALES (1962) A.C 367 were cited. On the need for the employer to securely fence a dangerous part of his machinery as a security device, it is submitted for the plaintiff/Respondent that English courts have interpreted section 14 of the Factories Act of U.K, in pari materia with section 17 of our Factories Act, as imposing absolute obligation, subject to the proviso in that section, to securely fence every dangerous part of the machinery as was done in CHERRY v. INTERNATTONAL ALLYS LTD (1960) 3 ALL E.R 264 was cited. The Defendant/Appellant, it is further submitted, did not show that it complied with the statutory obligations imposed on it by sections 17, 23 and 47 of the Factories Act inorder to avoid its liability to the Plaintiff/Respondent.
The plaintiff, as admitted by the Defendant, is a carpenter. The Defendant further admitted that the Plaintiff, as “one of the labours supplied to the Defendant it became incumbent upon the staffers of the Defendant to supervise” him, He was interviewed by Mr. Steve, Defendant’s site manager, and was subsequently employed by the Defendant/Appellant. On 20th November, 2002, as pleaded in paragraph 9 of the statement of claim and averred in the evidence of the plaintiff of the Plaintiff (PW.1), “Mr. Steve told the Plaintiff to prepare a kicker”. He was to use the motorized machine provided by the Defendant at its site. Paragraph 11 of the statement of claim avers emphatically that –
11. As the plaintiff was measuring a kicker wood on the machine for construction, victor (Bassey), unknown to the Plaintiff put a wood in the machine and the machine “collected” the wood and fractured the jaw of the Plaintiff, pull out four teeth with two others broken which also affected the Plaintiff’s ear drum.
The Defendant, in paragraph g of the Amended statement of Defence does not really deny the substance of the pleaded cause of the injury the plaintiff sustained. The Defendant was merely content to aver that the said Victor Bassey (DW.1) and the Plaintiff were co-workers of Budullatra Services, the sub-contractor.
Victor Bassey (DW.1) admitted the substance of the cause of the injuries the plaintiff sustained on 20th November 2002. At pages 109 and 110 of the Record the DW.1 stated inter alia –
I carried the wood to meet the plaintiff. He was cutting wood. So after cutting the wood I gave him the one I held. By then the machine was still on, the half wood of the one he had cut was still on the machine. I then asked him to cut the one I held and he did. After cutting the wood for me, the half wood of the one I brought touched the that was still on the machine. The vibration of the machine now carried the half wood that was there to jam the half wood I brought and that was how the accident occurred.
The Plaintiff is a carpenter by profession and was employed as a carpenter. Before the accident, plaintiff has been using this machine. I took one wood to him and he cut it into two pieces, one and a half piece in the machine had not been removed so my half wood touched the half wood already on the machine and the vibration from that contact caused the accident.
This piece of evidence, coming from the DW.1, not only corroborates the evidence of the plaintiff (PW.1) as to the cause of the injury he sustained from using the machine, it affirms the averments in paragraphs 9,10 and 11 of the amended statement of claim. Let it be repeated again that the Defendant failed, in paragraph 9 of the amended statement of defence, to traverse or join issues with the substance of the averments in paragraphs 9, 10 and 11 of the statement of claim. There is therefore no dispute as to how the plaintiff sustained his injuries while using or operating the machine. No evidence, inspite of the Defendant’s very loud averment in paragraph 8 of the amended statement of Defence that it was “incumbent upon the staffers of the Defendant to supervise the plaintiff”, came forth from the Defendant that its staffers indeed supervised the plaintiff in the use or operation of the machine. There is also no evidence that the Plaintiff was “fully instructed” as to the dangers likely to arise in connection” with his use or operation of the machine. None was pleaded also. But this is not the complaint of the Defendant/Appellant in this appeal. The complaint is that there was neither pleading nor evidence as to any defect in the machinery or inadequacy of any safety device around the machinery.
Now, let me reproduce the provisions of sections 17(1), 23 and 47 of the Factories Act. They are:
17(1) Every dangerous part of any machinery, other than the prime movers and transmission machinery, shall be securely fenced unless it is in such a position or of such construction as to be safe to every person employed or working on the premises as it would be if securely fenced, provided that in so far as the safety of a dangerous part of any machinery can not by reason of the nature of the operation be secured by means of a fixed guard, the requirements of this sub-section shall be deemed to have been complied with if a device is provided which in the opinion of the Director of Factories satisfactorily protects the operator or other persons from coming into contact with that Part.
23. no person shall be employed at any machine or in any process, being a machine or process liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed, and
a. has received a sufficient training to work at the machine or in the Process; or
b. is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process.
47. where in any factory workers are employed in any process involving excessive exposure to wet or to injurious or offensive substance, suitable protective clothing and appliances, including, where necessary suitable gloves, footwear, goggles and head coverings, shall be provided and maintained for the use of such workers,
The learned trial Judge, finding that paragraph 9 of the amended statement of claim was not denied, held at page 195 of the Record that the averment “brings this case squarely within the purview of sections 23 and 27” of the Factories Act. These specific finding of fact and invocation of the provisions of the Factories Act Cap 126, 1990 LFN have not been challenged or attacked. On the other hand, by paragraph 8 of the amended statement of defence the Defendant appears to acknowledge their statutory obligation, under section 23 of the Factories Act, to the Plaintiff. That is, as occupier of the premises and the employer of the workman deployed to operate or make use of the machine their duty to fully instruct the workman on the dangers likely to arise in connection with the use or operation of the machine. The obligation includes and extends to giving sufficient training on how to work at the machine and adequate supervision of the workman by a person who has a thorough knowledge and experience of the machine.
In my judgment, by dint of paragraphs 9, 10 and 11 of the amended statement of claim read together with paragraph 8 of the amended state of defence, and the evidence of PW.1 and DW.1 the Defendant/Appellant can not be heard complaining, as they do under issue 2, that there were no pleadings nor evidence on which to infer the failure of the Defendants’ obligation to the Plaintiff, their employee/workman, under section 23 of the Factories Act, 1990.
The judgment appealed did not turn on the provisions of section 17(1) of the Factories Act. There is no specific complaint under section 17(1) of the Act. There is, similarly, no Respondent’s Notice under Order 9, Rule 2 of the Court of Appeal Rules, 2007, asking “that the decision of the court below should be affirmed on grounds, other than those relied upon by that court”
There is no substance in this second issue argued in this appeal by the Defendant/Appellant. The issue is, accordingly, resolved against Defendant/Appellant.
On the whole there is no merit in this appeal. It is accordingly dismissed. The decision of the court below in suit no PHC/1223/2003 dated 31st January, 2006, is hereby affirmed. The costs assessed at N50, 000.00 shall be paid to the Plaintiff/Respondent by the Defendant/Appellant.
HON. JUSTICE M. DATTIJO MUHAMMAD: My learned brother Eko JCA did oblige me the draft of the lead judgment just delivered and on perusal I agree with him for all the reasons he gave that the appeal lacks merit. I dismiss the appeal and abide by the consequential orders reflected in the lead judgment.
T.O. AWOTOYE J.C.A.: I have had the advantage of reading the draft of the judgment just delivered by my learned brother EJEMbi EKO JCA; I am in full agreement with the reasonings and conclusion therein.
The defendant/appellants and witness, Victor Bassey gave evidence that the Plaintiff/Respondent was a carpenter by profession and was employed as one. There is no evidence to rebut the one given by plaintiff/appellant that Mr. Steve, the site manager of the defendant/appellant asked him to prepare kicker wood which he was doing on the machine. There is no evidence that the defendant was trained to work on the said machine in accordance with section 23 of the factories Act.
There is overwhelming evidence that the incident was caused by Victor Bassey, DW1 and this evidence was accepted by the trial court.
It is clear the injury sustained by the plaintiff might not have occurred had the appellant complied with the provisions of Factories Act by giving the plaintiff/respondent adequate training on how to use the machine in question.
The plaintiff does not have to prove that the breach of statutory duty by the defendant was the sole cause of his injury see BONNINGTON CASTINGS LTD V. WARDLAW (1956) AC 613.
It must be noted that the Factories Act is intended for the protection and benefit of workers and it confers a right of action for its breach. See CUTLER. V. WANDS WORTH STADIUM LTD (1949) AC, 398 citing GROVES v. LORD WIMBORNE (1898) 2 QB 402 at 406. The right of action thus conferred is distinct from negligence see LONDON PASSENGER BOARD V. UPSON (1949) AC. 155 at 168.
The findings of fact made by the trial court are unimpeachable and this court cannot interfere with them. See OGIDI v. THE STATE (2003) 9 NWLR (PT. 824) 1, SHITTU v. EGBEYEMI (1996) 6 NWLR. (PT. 457) 650. I see no reason to disturb Judgment.For the above reasons and the fuller reasons given in the lead judgment I hold that this appear racks merit. I abide by the consequential orders made and the order as to cost in the lead judgment.
Appearances
Chief B.O. AsaboroFor Appellant
AND
E.T. GeorgeFor Respondent
