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National Industrial Court

ANDREW ESIRI OKOTO VS GUINNESS NIGERIA PLC

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A. OJI  PhD

DATE:  THURSDAY 22ND NOVEMBER 2018

 

SUIT NO. NICN/LA/72/2017

 

BETWEEN

ANDREW ESIRI OKOTO            

                                   

CLAIMANT

AND

GUINNESS NIGERIA PLC

                                                           

DEFENDANT

 

Representation:

T A M Damiari appears for the Claimant

Femi Fajolu with N. Okonkwo (Mrs) appears for the Defendant.

 

JUDGMENT

The Claimant commenced this action against the Defendants by a General Form of Compliant dated and filed on 10th February 2017, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s Witness Statement on Oath, List of Documents; all dated the 6th February 2017 and copies of all the documents to be relied on at the trial of the suit. The Claimant deposed to a further statement on oath on 10th May 2017.  The Claimant claims the following reliefs against the Defendants:

  1. A Declaration that the action of the Respondent in coercing, arm-twisting and compelling the Applicant to release his private medical records to the Respondent, is totally unwarranted and an unlawful invasion of the Applicant’s right to privacy and dignity of his person as guaranteed under Section 34 and 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
  2. A Declaration that the Respondent’s act of unlawful invasion into the private medical records of the Applicant caused the Applicant mental hurt, trauma, emotional torture with feelings of vulnerability which entitles the Applicant to compensatory and exemplary damages against the Respondent.
  3. A Declaration that the Respondent’s failure, refusal and neglect (whilst the Applicant was under its employment) to register the Applicant with the Liberty Blue Insurance operated by the Respondent for all staff and failure to make adequate provisions for the medical care of the Applicant (whilst under its employment) and the subsequent refusal of the Respondent to refund to the Applicant the sum of N630,000.00 (Six Hundred and Thirty Thousand Naira) spent by him on medical care at the Britannia Hospital, Plot 13, AliyuAnimashaun Avenue, Lekki Phase 1, Lagos (recommended by the Respondent), is discriminatory against the Applicant and a breach of the Respondent’s duties to the Applicant as his employer.
  4. An Order Directing the Respondent to pay to the Applicant the sum of N5,000,000.00 (Five Million Naira) for the unwarranted and unlawful invasion of the medical privacy of the Applicant.
  5. An Order directing the Respondent to pay to the Applicant the sum of N630,000.00 (Six Hundred and Thirty Thousand naira) being the amount expended by the Applicant in seeking medical attention at the Britannia Hospital, Lekki Phase 1,Lagos which was recommended by the Respondent.
  6. An Order Directing the Respondent to pay to the Applicant the sum of N5,000,000.00 (Five Million naira) being compensatory and exemplary damages for the inconveniences, mental hurt, torture, emotional trauma, neglect, abandonment. deprivation suffered by the Applicant as a result of the Respondent’s actions.

 

In response to the claim, the Defendant entered appearance on the 3rd of April 2017. The Defendant filed its Statement of Defence on the same 3rd of April 2017 together with a List of Defendant’s Witnesses and Defendant’s Witness Statement on Oath deposed to by Augustine Egbunonwo, List of Documents and copies of the documents to be relied on at the trial.  By the Order of Court dated 12th March 2018, leave was granted the Defendant to substitute its witness and Omololu Bankole was substited for Augustine Egbunonwo.  His statement of 12th March 2018 was also substituted for that of Augustine Egbunonwo of 3rd April 2017.

Trial commenced in the suit on 10th July 2018 and ended on the same date.  Claimant gave evidence for himself as CW, by adopting his Witness Statement on Oath and his Further Witness Statement on Oath dated 10th February 2017 and 10th May 2017 respectivelt.  The Claimant was thereafter cross-examined.  Claimant tendered in evidence the following documents:

  1. Exhibit C1-  Letter of employment dated 18th February 2014.
  2. Exhibit C2 –  Receipts issued by Britannia Hospital.
  3. Exhibit C3A, C3B, C3C and C3D  – Letters exchanged between Claimant’s Solicitors and the Respondent.

The Defendant’s Witness, Olalere Dada gave evidence as DW1 by adopting his Witness Statement on Oath deposed to on 12th March 2018 and was also cross examined.

CASE OF THE CLAIMANT

 

The Claimant in this suit is a financial consultant, business development expert and strategist, while the Defendant is a going concern in Nigeria with its registered office at No. 24 Oba Akran Avenue, Ikeja, Lagos and a subsidiary of Diageo Plc situate at London, NW10 7HQ, UK. Claimant had over the years distinguished himself with a successful track record with Etisalat Telecom which attracted Defendant to him and subsequently resulted in an offer from the Defendant. The Claimant accepted the Defendant’s offer  and consequently resigned from his employment with Etisalat Telecoms. He resumed on 10th March 2014 without any break from Etisalat Telecom due to pressures from the Defendant to resume work immediately as its Head of Strategy. It is the Claimant’s case that due to an extensive one-month familiarization with the daily operations of the Defendant and the immediate workload on him, he fell ill in April 2014 and that it was in view of his entitlement to free medical care by his contract of employment that he contacted the Defendant’s Human Resources department and thereafter obtained an approved list of hospitals from the Defendant’s health clinic from which he picked Britannia Hospital from the list due to its proximity to his residence.  At Britannia Hospital, the Claimant was referred to its human resources personnel and consequently referred to Liberty Blue Insurance; handlers of the administrative registration process of the Claimant who informed the Claimant that he had not been registered with the insurers as the Defendant had failed to complete his registration. Based on the foregoing, the Claimant made a report to the Defendant and one Mr.Adewale Adediran; the Defendant’s Human Resources Manager consented that the Claimant could proceed with his medical treatment at Britannia Hospital.  The Claimant was eventually diagnosed with stress and exhaustion as a result of overworking and subsequently bedridden for one month and he personally paid for his hospital registration and medical bills amounting to N630,000.00 and the sum of N90,000.00 on payments for drugs and other external consultants. Upon resumption with the Defendant, the Claimant presented the bill of his medical expenses and requested for a refund by the Defendant.  However, the Defendant’s Human Resources Manager complained that the medical bill was too high and the Defendant would not be able to afford same. It is also the Claimant’s case that the Defendant purportedly queried the clinic in respect of his medical bills and thereafter demanded for the release of the Claimant’s private medical report from the hospital in defiance to his right to privacy which led to several meetings between the Claimant and the Defendant’s Human Resources Manager entreating him to refrain from encroaching into his private medical record. Claimant states that despite the Defendant’s success at gaining the Claimant’s private medical records, the Defendant still failed, refused and neglected to make the refund to the Claimant.  Claimant claims that the Defendant’s encroachment into his privacy, exposed him to perpetual public humiliation, emotional torture, trauma and feelings of vulnerability as the encroachment on his privacy was unlawful and amounted to an infraction of the Claimant’s fundamental rights as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the African Charter on Human and Peoples rights and United Nations Universal Declaration of Human Rights.

 

THE CASE OF THE DEFENDANT

The case of the Defendant is that the Claimant had resumed work on 10th March, 2014 having voluntarily accepted the Defendant’s ‘Offer of Appointment’ dated 18th February, 2014 and executed on the same day and also admitted that the Claimant was entitled to free medical care to be borne by the Defendant although the Defendant’s Medical Scheme was optional to the Claimant. Defendant states that the Claimant had been directed to see the Clinic team for further details on choice of hospital.  The Britannia Hospital was on the list of the approved hospitals under the Defendant’s Health Management Scheme with the support of Liberty Health Insurance.  The Claimant was not registered under the Scheme at the time. The Defendant states that it was not the Defendant’s fault that the Claimant was not registered for the Scheme as Claimant had himself neglected to register with the Liberty Blue Health Scheme nor had the Claimant sought for prior approval from the Liberty Health Insurance the competent authority to advise the Claimant on his claim.

 

The Defendant states that it was not under the scope of work of the Defendant’s Human Resources Manager to advise the Claimant to proceed with medical treatment when he had not been registered with the Liberty Health Insurance nor was it the responsibility of the Human Resources Manager to process eligible refunds of hospital bill, but Liberty Health Insurance and that the Claimant ought to have been aware of this fact, as an employee.

 

It is Defendant’s case that Claimant was not entitled to any refund of medical expenses, whatsoever, as the Claimant was not registered with Liberty Health Insurance and that the Claimant never presented any medical bills to the Human Resources Manager of the Defendant for a refund, nor had meetings with the Human Resources Manager, nor did the Defendant’s Human Resources Manager ever complain about any purported medical bills, demand for the release of the Claimant’s private records from Britannia Hospital nor insist on investigating the Claimant’s medical bills. Defendant states that it never coerced, pressurized nor arm-twisted the Claimant to produce the Claimant’s private medical record or any records whatsoever. Defendant denies owing the Claimant any money as Claimant is not entitled to any refund of medical bills particularly as the Claimant failed to fulfil the conditions precedent to make him eligible for any refund of medical bills.  Defendant further states that it did not invade or encroach on the Claimant’s private medical records nor treat the Claimant with any form of disrespect or infract on the Claimant’s fundamental rights.

 

CLAIMANT’S REPLY TO DEFENDANT’S DEFENCE

Claimant, in his Reply to the Statement of Defence states that contrary to Defendant’s assertions, it was the duty and responsibility of the Defendant as employer of the Claimant to register him in its medical scheme, which it failed, refused and neglected to do.  Claimant states that Defendant’s assertions of Claimant non consultation with the clinic team is an afterthought and a face saving measure by the Defendant as all along the Defendant had maintained the fact that the Britannia hospital was a non-partner hospital.  Claimant states that the clinic team of the Defendant is under the Human Resources department and consequently under the overriding control and supervision of the Human Resources Manager of the Defendant, which was then occupied by Mr.Adewale and that the Human Resources Manager was within the scope of his powers and functions to advise and relate with the Claimant in respect of the Defendant’s medical scheme, medical bills and refunds thereto. Claimant further states that the Defendant’s denial of Human Resources Manager’s communication with the Claimant or invasion of the privacy right of the Claimant is an afterthought as the Defendant in its letter of 15thJuly 2016 had not denied the demand by the Human Resources Manager for the Claimant’s private medical record but only responded with the excuse that “we are guided by the global principles of data privacy and would not release the medical records to unauthorized personnel of staff that has no requirement to have access to same hence your client’s allegation of breach of his privacy rights is unfounded”.  Claimant states that he did not stop demanding the refund of the medical bills during the time of his employment.

 

ARGUMENTS ON BEHALF OF THE DEFENDANT

The Defendant raised the following issues for determination in his final address:

  1. Whether an action for enforcement of the Claimant’s Fundamental Human Rights i.e. unlawful invasion of Applicant’s right to privacy and dignity of his person as guaranteed under Sections 34 and 37 of the Constitution of the Federal Republic of Nigeria, 1999 can be filed and adjudicated in this Honourable Court and by Complaint and/or Statement of Fact?
  2. Whether from the evidence adduced before this Honourable Court, the Claimant has made out a case to sustain his reliefs before this Honourable Court i.e. whether the Claimant is entitled to the refund of money he spent on medical treatment at the Britannia Hospital, Lekki, Lagos.
  3. Whether the Claimant’s right to privacy was in any form and manner breached by the Defendant.

 

On the issues raised, the Defendant contends in the main that the position of the law is that the procedure for instituting an action based on infringement of Fundamental Right under the Constitution is prescribed by the Fundamental Right Enforcement Procedure Rules, 2009 and hence breach of any of the fundamental right guaranteed in the Constitution can only be enforced under the provided procedure. It was submitted that the Claimant having failed to comply with the prescribed procedure will have the effect of this Court lacking jurisdiction to entertain the Claimant’s claim on his principal claim for enforcement of Fundamental Human Right. He relied on the authority of Tukur v. Government of Gongola State (1989) 4 NWLR (Part 117) @ 517; Tukur v. Government of Taraba State (1997) 6 NWLR (Part 510) @ 549 and Abba v. JAMB &Anor (2015) 53 NILR (Part 177) Pg. 10 Ratio 2.  Learned Counsel therefore urged the Court to strike out this case for want of Jurisdiction as the Claimant’s principal claim is not a labour claim but a Fundamental Human Right Claim filed under a wrong procedure.

 

On the issue of whether the Claimant’s right to privacy was in any form and manner breached by the Defendant, Defendant submits that the Claimant’s right to privacy was not in any form or manner breached by the Defendant particularly as Exhibit C1 provides for a Data Protection and Privacy signed by the Claimant which estops him from claiming any breach of privacy in respect to the medical report which he voluntarily submitted to the Defendant, for the purpose relating to the administration, management and operation of his employment.

 

The Defendant contends that the Claimant, being a former staff of the Defendant had a duty to disclose to his employer any serious ailment he had especially when he was making a claim for money outside the company’s regulated policy on healthcare. Defendant contends that the Claimant testified in his evidence that he gave his medical report to the Defendant but failed to state how he was coerced, pressurized or arm-twisted to produce his medical record. Defendant further submits that it is within the term of Claimant’s employment for the Defendant to know the treatment the Claimant took thirty (30) days off work for and submitted also that the Claimant was not forced to release the medical report to the Defendant but that the Claimant had to justify his absence from work for thirty (30) days with full pay.  Defendant concludes that it did not violate any Fundamental Human Right of the Claimant as submission of the Claimant’s medical report to his employers will not amount to violation of the Claimant’s Fundamental Human Right under Nigeria Constitution.  Defendant submits that he who asserts must prove – Abba v. JAMB & Anor (2015) 53 NLLR (Part 177) Page 10 ratio 1 and that Claimant has not proved the said violation of right. Defendant contends that the Claimant failed to show in his employment contract where it is stated that he is entitled to claim the sum of money he seeks.

 

The Defendant also contends that the Claimant is estopped from coming back to make claims against the Defendant after he has collected his full entitlement three years before filing the suit –  Osaye v. Honda Place Limited (2015) 53 NLLR Part 177 Page 68 ratio 15.

 

On the issue of exemplary damages claimed by the Claimant, Defendant refers to the case of A. O. Odiba & Anor v. Akaazue Muemue (1999) LPELR) (SC) (1999) 10 NWLR (PT. 622) 177 and argues that the Claimant failed to prove what part of his employment contract was breached and as such, he is not entitled to any damages.

 

ARUGMENTS ON BEHALF OF CLAIMANT

The Claimant raised the following issues for determination:

  1. Whether this Honourable Court has the jurisdiction to entertain this suit.
  2. Whether the Claimant has proven the breach of his fundamental human rights by the Defendant during his employment with the Defendant company.
  3. Whether the Claimant is entitled to the refund of the medical bills expended at the Britannia hospital during his employment with the Defendant company.
  4. Whether Claimant in the circumstances is entitled to the award of monetary damages as claimed.

 

On issue one, Claimant submits that the Defendant’s objection on the form of commencement of this proceedings is not properly brought before this Court as Order 5 Rule 2 (1) and (2) of the Rules of this Court provides the stage and manner an objection can be taken by requiring the Defendant to raise such issue timeously during the course of proceeding and not at the address stage. Claimant argues that the Defendant is deemed to have waived his right – Saude v. Abdullahi (1989) LPELR 3017 (SC) at P.22, Para’s.B-G.; Chisco International Ltd. V. Prime Marketing Associates Ltd. & Ors (2016) 3 NWLR (Pt. 1499) 249 @ 279, para D-E. where Ndukwe Anyanwu JCA:

The Appellant’s Counsel complained about the form under which this suit was brought in the Court below. Challenging the form a suit is initiated is a procedural jurisdiction. This may be waived by the parties. However, where a litigant wishes to complain about procedure, it should do so timeously before taking any step in the proceedings. Once an aggrieved party takes a step in the proceedings, it would be deemed that he has waived his right of complaint.

 

Claimant argues that assuming the Court is minded to entertain the objection on form, and submits that the judicial powers to entertain actions bordering on interpretation and application of the provisions of Chapter IV of the Constitution with regards to employment, labour, industrial relations is conferred on the National Industrial Court (NIC) by virtue of Sections 6 (6) (a)b and 254C(1)d of the 1999 Constitution (as amended).  He submits that an action seeking the interpretation and application of the provisions of Chapter IV of the Constitution cannot be defeated by reason of technicalities as sought by the Defendant.  Claimant argues that this Court reserves the discretion on the applicability of the Rules of this Court.  In furtherance to that, Claimant submits that this Court made specific provisions for the commencement of a fundamental rights action by way of complaint before the National Industrial Court. He refers to Order 3 Rules 1; Order 2 Rules 2 (1) and (2)b of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017·

 

Order 3 Rule 2 (1) provides-

 

Civil Proceedings that may be commenced by way of Complaint include all matters in which the Court has jurisdiction as provided in Section 254C(1) paragraphs (a)-(k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or by an Act or law in force in Nigeria

Claimant submits that the extant Rules of this Court recognises and validates the use of Complaint for the commencement of this action founded under the sacrosanct provisions of Chapter IV of the CFRN.

 

On issue two, the Claimant refers to section 47 of the CFRN as protecting the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications and Article 17 of the Universal Declaration of Human Rights of the United Nations’ General Assembly 1948, as protecting persons from arbitrary or unlawful interference with his privacy, family, or correspondence, or to unlawful attacks on his honour and reputation. Claimant submits that had Defendant produced the correspondences between Mr. Adewale and Claimant as was demanded vide notice to produce at paragraph 19 of the Statement of Facts, it would have clearly worked unfavourably against the Defendant, in showing the consistent refusal by the Claimant in consenting to the release of his medical report, the subtle threats, series of pressure mounted on the Claimant by Defendant and entreaties by Defendant and Nicole to Mr.Adewale in that regard.  He urged the Court to invoke the provision of Section 167(d) of the Evidence Act (as amended) particularly as the Claimant gave credible evidence to the effect that all the correspondences exchanged with the Defendant in respect of the instant subject matter were through his official email handle.

 

On issue three , whether Claimant is entitled to the refund of the medical bill incurred at the Britannic Hospital; Claimant contends that his right to the refund of money expended with the consent of an employer such as the Defendant company need not be stipulated in the employment contract for it to be enforceable as it is the Claimant’s case that a full and enforceable contract for the refund of medical expenses was completely and effectually entered when Defendant gave its consent to Claimant to proceed with the treatment at Britannia Hospital after Defendant discovered that by its neglect, the name of the Claimant was yet to be reflected in the list of beneficiaries with the HMO.

 

On issue four, whether Claimant, in the circumstances is entitled to the award of monetary damages, Claimant contends that he has successfully led credible evidence in support of his case and has shown the injuries suffered by him as a result of the Defendant’s unjustifiable violation of his fundamental rights. It is canvassed for the Claimant also that the law is trite that damages are presumed to flow naturally from the injury suffered by the victim as a result of the infraction of his fundamental rights and should be awarded

 

COURT’S DECISION

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses.  I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour.  In addition, I evaluated all the exhibits tendered and admitted.  Having done all this, I set the following issues down for determination:

  1. Whether this suit is properly before this Court;
  2. Whether the fundamental right to privacy of the Claimant was infringed; and
  3. Whether the Claimant is entitled to his Claim.

Issue one as stated above is premised on Defendant’s first issue for determination, which is, whether an action for enforcement of the Claimant’s Fundamental Human Rights i.e. unlawful invasion of Applicant’s right to privacy and dignity of his person as guaranteed under Sections 34 and 37 of the Constitution of the Federal Republic of Nigeria, 1999 can be filed and adjudicated in this Court and by Complaint and/or Statement of Fact?

This issue queries the jurisdiction of this Court to entertain issues and disputes pertaining to the infringement of the fundamental rights of Nigerians as enshrined in chapter 4 of the Constitution of the Federal Republic of Nigeria.  Breach of chapter 4 is not defined in relation to location, locality and context; thus, the infringement of the fundamental rights of a person can occur at any location.  Jurisdiction, on the other hand, is dependent on scope and delimitation.  As stated by the Supreme Court in Madukolu v. Nkemdilim (1962) 1 All NLR 587,

It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent, to the exercise of jurisdiction.

The jurisdiction of this Court is as provided by Section 254C(1)d) of the Constitution.  It provides that:

Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-( d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relation, trade unionism, employer’s association or any other which the court has jurisdiction to hear and determine”

This section specifically, confers jurisdiction on this Court to hear and determine matters:

relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relation, trade unionism, employer’s association or any other which the court has jurisdiction to hear and determine.

 

The issue raised by Defendant is clearly resolved by the above provision.  The dispute in this suit is founded on the application of the fundamental right of the Claimant to privacy as enshrined in section 37 of the Constitution, which forms part of chapter 4 of the Constitution.  Again, the issue indisputably arose in the course and relates to the employment of the Claimant.  I therefore resolve that by the clear provisions of section 254C(1)(d) of the CFRN, this Court has jurisdiction to entertain this suit.

 

The issue of the proper form of commencement of this suit is overtaken by the resolution that this Court has jurisdiction to hear this suit.  This is because, this suit is properly brought by means of Complaint as provided for by Order 3 Rule 2 as follows:

2.—(1) Civil proceedings that may be commenced by way of Complaint include all matters in which the Court has exclusive jurisdiction as provided in section 254C(1) paragraphs (a)-(k) and (m) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or by any Act or law in force in Nigeria. (2) Where any matter relating to Section 254C(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is to be filed before the Court, such matter, if — (a) it relates only to interpretation, shall be by way of Originating summons ; (b) it relates to interpretation and application shall be by way of Complaint.

 

The case of Mr. Silas Jumbo Essien v. Chief Akpan Inyang & Ors (2011) LPELR-4125(CA) is instructive on this issue.  There, the Court of Appeal held that:

 

Where an applicant presents a claim under the Fundamental Rights (Enforcement Procedure) Rules but the claim shows a dispute under other areas of law, that action cannot succeed under the Fundamental Rights (Enforcement Procedure) Rules. See Sea Trucks Nig. Ltd v. Anigboro (2O01) 2 NWLR (Pt. 696) 159; Dangote v. Civil Service Commission Plateau, (2001) 9 NWLR (Pt. 717) 132; Ransomekuti v. A. G. Federation (2001) FWLR (Pt. 80) 1637; Jack v. University of Maiduguri (2004) All FWLR (Pt. 200) 1506; W.A.E v. Adeyanju (2008) All FWLR (Pt. 428) 206″ Per AKEJU J.C.A. (P. 24, paras. C-D

 

Based on all the above, I find that this Court has jurisdiction to hear this case and that this suit has been commenced by the proper form as it relates to the interpretation and application of Section 37 of the 1999 Constitution.

 

Having resolved that this Court has jurisdiction to hear this suit, and that the suit was properly commenced, I proceed to consider issue two, as set down by the Court, which is whether the fundamental right to privacy of the Claimant was infringed.

 

It is the case of the Claimant that his fundamental right to privacy was infringed by the Defendant, in that the Defendant coerced, arm-twisted and compelled him to release his private medical records to the Defendant.  He contends that it was totally unwarranted and an unlawful invasion of his right to privacy and dignity of his person as guaranteed under Section 34 and 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). As held in FRN V. DANIEL 2011) LPELR-4152(CA), by virtue of the provision of section 37 of the 1999 constitution, the privacy of every Nigerian Citizen, the home, correspondence, telephonic and other telegraphic communications are cherishingly guaranteed and protected. Thus, it would be an infringement of this right for the Defendant to unlawfully invade his medical records.  To invade his medical records will imply Defendant encroaching and obtaining by itself.  See also Okafor & Ors v. Ntoka & Ors (2017) LPELR-42794(CA).

In the light of the relationship between the Claimant and the Defendant, I need to note the provision of section 45(1) of the 1999 constitution which provides that nothing in section 37 shall invalidate what appears to be reasonably justifiable in a democratic society –

(a) in the interest of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedom of other persons.

ln view of the unequivocally far-reaching provision of section 45(1) of the 1999 constitution as alluded above, I think it would be apt to consider the context of the request made by Defendant of Claimant’s medical records.  Parties are agreed that Claimant is the employee of Defendant, and that he underwent medical treatment while under the employment of Defendant.  He presented a medical bill to the Defendant for refund, whereupon Defendant requested for the medical records to justify the refund.  It is in evidence that it was the Claimant who submitted the said medical report.  Inasmuch as I do not find the evidence of the coercion, arm-twisting and compulsion, I would find it to be a reasonable demand as a condition for the refund of the medical bill.

The Claimant made the case that evidence of the communications between him and Defendant showing his reluctance to release his medical records to the Defendant is contained in series of emails between the parties, which Defendant was given notice to produce. Failure to produce the said document entitles Claimant to prove the facts via any other means available.  In the case of Venn v. Access Bank Plc & Ors Suit No: CA/L/134/2012, the Court of Appeal, on that point held that:

In the first place a notice to produce is a formal demand on the adverse party to bring before the court for the use of the requesting party such document or documents listed in said notice. Where a notice to produce is served on a party who fails to produce same, then the law allows secondary evidence of such document to be adduced where available. In other words, the purpose of issuing notice to produce is to allow the person who gives the notice to tender secondary evidence of the required documents where the adverse party fails to produce them. Buhari v. Obasanjo (2005) 13 NWLR (PT.941) 1, Ajagbe v. Babalola (2010) LPELR (3668) CA; Adegbuji v. Mustapha (2010) LPELR (3600) CA; Union Bank Of Nigeria Ltd v. Idris (1999) 7 NWLR (PT 609) Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (PT 668) 243, 105.

In Ainoko v. Yunusa (2008) LPELR (3663) CA. This court relying on the above cited authorities held inter alia that:-

“The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 98 of the Evidence Act. In other words, the service of a notice to produce a document does not relieve the person serving the notice of the burden of producing the document if he can or of proving its contents. Consequently the non-response to a notice to produce will not cause the court to invoke the presumption of withholding of evidence under Section 149(d) of the Evidence Act against the defaulting party.”

See also Chukwuka  v. Nduka (2008) LPELR (3985) CA.

It follows therefore, that the 1st Respondent having failed to produce the letter written to the Central Bank of Nigeria and the Chartered Institute of Bankers, the coast was made clear for the appellant to adduce secondary evidence of the said letters in support of his case because the invitation to the court to invoke the provisions of Section 149(d) of the Evidence Act against the respondents cannot be supported by law.” Per OSEJI, J.C.A. (Pp. 44-45, paras. A-D)

Also, see Obaseki-Adejumo JCA in UBA Plc v. Ogochukwu (2014) LPELR-24267(CA)

Service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document does not relieve the person serving the notice of the burden of producing the document if he can or of proving its contents.” Per OBASEKI-ADEJUMO, J.C.A (P. 26, paras. C-G)

I therefore hold that the non-production of the said communications does not prove the facts asserted by Claimant without more.  I do not find evidence of the coercion and arm-twisting alleged.  Based on the above, I hold that Claimant has not established the breach of his fundamental right to privacy as alleged.  I therefore decline Relief one as sought by Claimant.

On the third issue raised by the Court, whether the Claimant is entitled to his Claim, I take the Reliefs sought by Claimant seriatim.

Relief one for a Declaration that the action of the Respondent in coercing, arm-twisting and compelling the Applicant to release his private medical records to the Respondent, is totally unwarranted and an unlawful invasion of the Applicant’s right to privacy and dignity of his person as guaranteed under Section 34 and 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).  By the finding on issue two, I do not find proof of the invasion of Claimant’s right to dignity and privacy.  I do not find evidence of the coercion, arm-twisting and compulsion on the Claimant to release his private medical records.  I therefore decline to make the order sought.

Relief two, for a Declaration that the Respondent’s act of unlawful invasion into the private medical records of the Applicant caused the Applicant mental hurt, trauma, emotional torture with feelings of vulnerability which entitles the Applicant to compensatory and exemplary damages against the Respondent flows from the finding in Relief one.  Relief one not having been established, Relief two fails.

Relief three seeks a Declaration that the Respondent’s failure, refusal and neglect (whilst the Applicant was under its employment) to register the Applicant with the Liberty Blue Insurance operated by the Respondent for all staff and failure to make adequate provisions for the medical care of the Applicant (whilst under its employment) and the subsequent refusal of the Respondent to refund to the Applicant the sum of N630,000.00 (Six Hundred and Thirty Thousand Naira) spent by him on medical care at the Britannia Hospital, Plot 13, Aliyu Animashaun Avenue, Lekki Phase 1, Lagos (recommended by the Respondent), is discriminatory against the Applicant and a breach of the Respondent’s duties to the Applicant as his employer.

 

In this case, the Claimant alleges that it was Defendant’s responsibility to register him with the Liberty Blue Insurance, while Defendant states that Claimant failed to cause him to be so registered.  None of the parties tendered any evidence to show whose responsibility it was to perform the said act.  However, the relief sought is that the failure of the Defendant to register the Claimant with the HMO, failure to make adequate provisions for the medical care of the Claimant and the subsequent refusal to refund the Claimant the sum of N630,000.00 is discriminatory against the Applicant.  An allegation of discrimination requires that the Claimant states the grounds and basis for the discrimination.  Apart from stating it in the relief, Claimant did not prove the grounds or basis of the discrimination.  Discrimination must be founded on particular grounds.  See Order 14 Rule 1(2).  That Order and Rule provides:

(2) Where in an action before the Court, a Claimant alleges workplace discrimination, such Claimant shall state whether the alleged workplace discrimination is on any of the following grounds : (a) ancestry, (b) religion, (c) gender, (d) marital status, (e) family situation, (f ) genetic heritage, (g) ethnic origin, (h) political or ideological convictions, (i)union affiliation, (j)tribe, (k) handicap or disability, (l) health, (m) pregnancy, and (n) any other ground.

The Claimant having not indicated the basis for the discrimination, this Court cannot make the Declaration sought in Relief 3.

 

Relief 4 is for an Order Directing the Respondent to pay to the Applicant the sum of N5,000,000.00 (Five Million Naira) for the unwarranted and unlawful invasion of the medical privacy of the Applicant. Flowing from the findings in Relief 1 and 2, this Relief fails.

 

Relief 5 is for an order directing the Respondent to pay to the Applicant the sum of N630,000.00 (Six Hundred and Thirty Thousand naira) being the amount expended by the Applicant in seeking medical attention at the Britannia Hospital, Lekki Phase 1,Lagos which was recommended by the Respondent. On this, I find that parties are agreed that Claimant is entitled to medical care to be provided by the Defendant through its designated hospitals.  It is also agreed by parties that the Britannia hospital is one of the Defendants designated hospitals. The dispute is on procedure for involving the Health care provider.  Whereas Claimant contends that Defendant failed to register him with the HMO, Defendant alleges that Claimant was negligent in not ensuring that he was properly registered before incurring medical expenses in the hospital.  These rancor on the internal procedure does not remove the fact that Claimant was entitled to be provided with medical care.  There is evidence that Claimant took steps to be registered; and when it was discovered that he had not been properly captured, he contacted the HR in order to proceed with treatment.  DW in his evidence stated that:

In the case of medical benefits, the HR Business Partner will guide an employee on how to reach out to the clinic and process his claim …I believe the Claimant reached out to all relevant players on the issue.

 

In the circumstance, I believe that the Claimant should not be deprived of his right to medical treatment, and consequently, refund of his medical expenses, on the basis of the failure in communication within the internal workings of the Defendant.  I therefore find and hold that Claimant is entitled to refund of the money expended in seeking medical attention at the Britannia Hospital.  Exhibit C2 are receipts from Britannia Hospital, Lekki showing payments for various procedure amounting to the sum of N521, 720.00 (Five Hundred and Twenty One Thousand Seven Hundred and Twenty Naira) only.  The Defendants are hereby ordered to pay the Claimant, the sum of N521, 720.00 (Five Hundred and Twenty One Thousand Seven Hundred and Twenty Naira) being refund of his medical expenses, not later than one month from this judgment; failure of which 20% interest will accrue annually.

 

Relief six for the sum of N5,000,000.00 (Five Million naira) being compensatory and exemplary damages for the inconveniences, mental hurt, torture, emotional trauma, neglect, abandonment, deprivation suffered by the Applicant as a result of the Respondent’s actions is declined as I do not find that it is proved.

 

For the avoidance of doubt, only Relief 5 succeeds, but to the proved sum of N521, 720.00 (Five Hundred and Twenty One Thousand Seven Hundred and Twenty Naira) only.

 

I make no order as to cost.

 

Judgment is entered accordingly.

 

…………………………………….

Hon. Justice Elizabeth A. Oji PhD

 

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