EDDIE SUNDAY -VS- HALLIBURTON ENERGY SERVICES NIGERIA LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 30^th day of April, 2019 SUIT NO: NICN/PHC/61/2017

BETWEEN

EDDIE SUNDAY CLAIMANT

AND

HALLIBURTON ENERGY SERVICES NIGERIA LIMITED DEFENDANT

Representations:

V.K. Nenniibarini with F.E. Enigwe for the Claimant.

Inam Wilson with Collins Ogbu for the Defendant.

Judgment.

This suit was commenced by way of a general form of Complaint filed on the 14^th of July, 2017 along with an affidavit of verification, an amended statement of claim, list of witnesses, list of documents fact and copies of the listed documents to be used at trial.

The suit was originally before the late Justice A. Ibrahim before it was transferred to this court sometime in October 2018.

Arising from the Complaint and Statement of fact, the Claimant’s claims against the Defendant are:

(a) A DECLARATION that the termination of the Claimant’s employment by the Defendant without compensation for the injury he suffered while on duty which resulted to a permanent disability and on the purported ground of redundancy is irregular and unlawful.

(b) A DECLARATION that the injury the Claimant suffered while on duty in the Defendant’s workplace was as a result of the Defendant’s negligence.

(d) The sum of N20, 000,000.00 (Twenty Million Naira) being exemplary damages against the Defendant for its negligence which resulted in the injury on the Claimants left leg.

(e) The sum of N20, 000,000.00 (Twenty Million Naira) being exemplary damages for unlawful dismissal of the Claimant by the Defendant without compensation for the permanent disability.

(f) The sum of N30,000,000.00 (Thirty Million Naira) only as general damages for the emotional, mental, physical and psychological trauma and health challenges suffered by the Claimant as a result of the unlawful termination of his employment without compensation for the permanent disability.

(g) The sum of N10,000,000.00 (Ten Million Naira Only) being the cost of this action.

In reaction to the claims, the Defendant initially filed its statement of defence on the 11^th of December, 2017 along with a witness statement on oath, list of documents, list of witnesses and copies of documents to be used at trial. Subsequently, Defendant on the 15^th of February, 2018 filed an amended copy of the statement of defence and accompanied same with a list of additional documents and a witness statement on oath.

Furthermore, the Defendant filed on the 19^th of February, 2018, another list of additional documents and a witness statement on oath. On the 21^st of February, 2018, the Defendant also filed a list of additional witnesses and a witness statement on oath.

Upon receiving all the processes filed by the Defendant, the Claimant then filed a reply to the Defendant’s statement of defence on the 7^th of March, 2018. The said reply was accompanied by a list of additional documents, a further Statement on oath of the Claimant and copies of the additional documents.

In opening his case on the 3^rd of December, 2018, the Claimant himself as the sole witness was called as CW1. He adopted his witness statements on oath which were marked as C1 (a) and (b). Through CW1, 13 documents and 1 object were tendered and admitted in evidence as C2 – C15 except for C8 and C15 which were admitted under protest and to be addressed in the final address and considered in this judgment.

Arising from the statement of fact and witness statements on oath of the CW1, the case for the Claimant is that the Claimant as an employee of the Defendant was employed on 1^st June 2000 and had his appointment confirmed on 1^st April, 2001. He was promoted in 2011 but the Defendant had his employment terminated without compensation via a letter of redundancy dated the 22^ndof December, 2016. The Claimant posited that while he was in the employment of the Defendant, on the 10^th of July, 2014 at about 6:45 pm, at SPDC BONNY 25, SHELL LOCATION, the Claimant had an accident while on lawful duty of the Defendant. The event leading to the accident was that the Claimant, his supervisor Mr. Godwin Usoro and the crew members were informed by one Mr. Fred who is also an employee of the Defendant that the Barge where the equipment of the Defendant is, shifted and thus, needed to be put in the right position. The Claimant and his supervisor Mr. Godwin Usoro inspected the area where the Barge was and discovered that an iron on the line of the Defendant was bending because of the shifting of the Barge. The Claimant was on his complete PPE (Personnel Protective Equipment) and while he and his crew members were executing their lawful duty for the Defendant, an iron on the line suddenly snapped, landed on the Claimant’s left leg and broke his said leg. The Claimant was immediately taken to the accommodation quarters by the crew members where he was given a First Aid treatment by the Defendant. On the 11^th of July 2014, the Claimant was taken to First Rivers Hospital Limited by the Defendant where he was examined by an Orthopedic surgeon and it was discovered that the left leg bone broke into three (3) places. The Orthopedic surgeon operated the left leg of the Claimant and thereafter installed an iron steel inside and stitched it and the Defendant bought two clutches for the Claimant to enable him walk. The Claimant was thereafter discharged on 24^th July, 2014 and placed on oral medications and was directed to return for follow up visit every two (2) weeks. While the Claimant was still going for check-up and waiting for the bone to get healed and for the Iron Steel to be removed from his left leg, the Defendant unlawfully terminated the employment of the Claimant based on a purported redundancy without compensation for the accident that resulted to a permanent disability. Claimant posited that he is 45 years of age and has 15 years more to work before retirement but his employment was terminated by the Defendant because he was not useful for them again. He added that the injury he sustained was as a result of the negligence of the Defendant, as the said iron that snapped could not ordinarily snap if it was appropriately placed in its proper place and was supervised by the supervisor Mr. Godwin Usoro who is an employee of the Defendant. The Claimant further added that on 10^th February, 2017, the Defendant invited him for a meeting to resolve the issue of compensation for the permanent disability where he was told to incorporate a company to enable the Defendant award contracts to him annually as compensation for the permanent disability but he discovered same was a fraud after incorporating the said company. The Defendant failed to pay any compensation, hence this suit.

In the course of cross examination, the CW1 posited that the Client of the job was shell but the Barge belongs to the Defendant. He added that it is correct that to work with shell, one will meet with the Shell Representative to provide Job Safety Analysis to determine what will be done. He confirmed that the object that caused the accident was an iron bar. He posited that when they were to pull out the iron bar and the supervisor asked him to give support. He pulled it and the weight went to his side upon which the iron bar broke his leg. He posited that they took an x-ray of the leg at First Rivers Hospital but the x-ray before the court is not the one that was taken before and after the surgery. He added that he demanded for a report from First Rivers Hospital and he resumed work on light duty. He denied that he was later certified for work without restriction. He posited that he resumed work in October, 2014. He stated that he does not have any medical report showing the level of his medical disability. He admitted that he was not using crutches when he resumed duty but he is back to it because the iron has stayed so long in his body and he is in pain. He stated that he did not go back to Rivers Hospital to remove the iron because the Defendant failed in their agreement for compensation.

Upon the conclusion of the examination, the Claimant closed his case while the Defendant opened theirs.

In opening their case, the Defendant called four witnesses in persons of Johnson Madueke, the Defendant’s Human Resources Operations Partner as DW1; Vincent Onwo, the Defendant’s Health, Safety and Environment (HSE) Coordinator as DW2; Godwin Usoro, the SVC Supervisor of the Defendant Company as DW3 and Dr. Paul Abonyi, an Orthopedic Surgeon at First Rivers Hospital Limited as DW4. The witnesses adopted their respective witness statement on oath marked as D1, D2, D3 and D4 respectively.

Through DW1, 7 documents were tendered and marked as Exhibit DW1 (a) – (g) while Exhibits DW1 (c), (d), (e) and (f) were admitted under protest. One document was also tendered through DW2 and was admitted under protest as Exhibit DW2(a).

Arising from the amended statement of defence and witness statements on oath, the case for the Defendant is that the Claimant was indeed employed by the Defendant with the employment confirmed and the Claimant was indeed promoted. The defendant admitted that the Claimant was involved in an accident while on lawful duty on 10^th July 2014 but the accident did not occur in the Defendant’s premises. The accident occurred on a Barge belonging to or on hire to Shell Petroleum Development Company and the Barge was not under the navigational control and management of the Defendant at the time of the accident. They added that the Defendant was not responsible for the shifting of the Barge following tidal movement which was primarily responsible for the accident. They added that the Defendant could not with reasonable diligence have prevented the accident from occurring and it was not caused by the Defendant’s negligence in any manner or by any act or default of the Defendant howsoever as the Defendant exercised reasonable care to ensure a safe working environment. The defendant posited that the Defendant provided all necessary equipment and materials for the safety of the Claimant and all other employees and ensured that the work site was maintained in a safe condition and the operations in the work site were carried to avoid unnecessary risk. They posited that it was the Claimant’s negligence that resulted in his injury as the Claimant failed and/or neglected to take adequate precautionary and safety measures while attempting to adjust the shifted iron on the Barge. The defendant narrated that in the course of the operation on the 10^th of July, 2014, unilaterally and without discussing with the team, the Claimant took a stainless-steel bar, placed it underneath the CHISAN union and jacked it up to disconnect the last pipe on the CHISAN union. Rather surprisingly, when the CHISAN union uncoupled and dropped, the stainless-steel bar could not bear the tension from the CHISAN union and this caused the stainless-steel bar to slip from Claimant’s hands and fell on the Claimant’s leg, thereby causing his injury.

The Defendant posited that the Claimant was immediately rushed to the Defendant’s on-site medical personnel who administered First Aid treatment to the Claimant and the Claimant was thereafter transferred to First Rivers Hospital Ltd where he underwent an Open Reduction and Internal Fixation (ORIF) procedure for the open tibia fracture he suffered at the expense of the Defendant. The Defendant also covered all the medical expenses of the Claimant for the injury sustained and for all his follow up treatments in discharge of its duty to ensure the well-being of its employees and consistently received reports from First Rivers Hospital on the health status of the Claimant. The defendant posited that the Claimant was granted sick leave until he was certified fit to work on light duties and he resumed duties about 28^th of November, 2014. The defendant further posited that the First Rivers Hospital conducted a follow up review on 21^st May, 2015 and certified the Claimant fully fit to work without restrictions hence the Defendant specifically disputes that the Claimant’s injury is still life threatening or that the Claimant suffers severe pains and sleepless nights or that the Claimant was useless to the Defendant as falsely alleged. The Defendant maintained that the employment of the Claimant was lawfully terminated on grounds of redundancy occasioned by the downturn in the Nigerian oil and gas industry in accordance with the Claimant’s contract of employment. The defendant denied having any meeting with the Claimant to discuss payment for permanent disability as the Claimant is not permanently disabled. Neither was there a meeting where the Claimant was told to incorporate a company. The defendant posited that the Claimant had been compensated for the job loss and therefore the Claimant is not entitled to the claims or reliefs sought.

Upon cross examination of DW1, he admitted that the Claimant sustained injury in the course of employment with the Defendant and he is aware that a metal plate was placed in the Claimant’s left leg by First Rivers Hospital. He admitted knowing one Faith Igbinobano but posited that she is not procurement secretary.

During cross examination of DW2, he posited that he was not at the scene of the accident but he investigated and got all the necessary information from the Claimant and his supervisor. He stated that the Personnel Protective Equipment (PPE) required for the job the Claimant was involved in were Hard Hat, Eye goggles, Coveralls, Impact resistant hard gloves and safety boots and the Claimant wore all of them.

On the part of DW3, he posited that he was with the Claimant on lawful duty when he got injured. He posited that as a supervisor, he is to direct and watch over his crew members and ensure that they work safely. He added that he works with his crew members as well. He denied directing the Claimant to actually pull the steel bar. He maintained that the accident happened at night and accidents don’t give time to count. He maintained that he was not negligent and it is not correct to say that the PPE the Claimant was putting on was not enough to protect him from accident.

DW4 during cross examination posited that surgery is classified based on complexity and internal fixation is a major surgery. He maintained that the Hospital decided the best way to manage the Claimant being a factory worker. He admitted that the plate constitute a foreign body and added that the plate is a stainless steel and is designed to stay in the human system indefinitely as it has no effect on the human body and in advanced countries it is not removed therefore it is not correct that the metal plate has overstayed in the Claimant’s body.

Upon the discharge of all four witnesses of the Defendant, the matter was adjourned for adoption of final addresses. The Defendant filed theirs on the 27^th of February, 2019 while the Claimant filed theirs on the 11^th of March, 2019 upon which the Defendants filed a reply on point of law on the 12^th of March, 2019. All the processes were duly adopted as closing arguments of counsel in respect of this suit.

Arising from the Defendant’s final address, counsel to the Defendant Inam Wilson Esq. formulated two issues for determination to wit:

Whether the termination of the Claimant’s employment was valid and proper?
Whether the Claimant is entitled to an award of any special or general damages as claimed or at all?

In arguing issue one, counsel posited that there is a clear distinction between wrongful termination and unlawful termination. He added that it is only in employments with statutory flavor that the court can declare that the termination was unlawful. He also added that the relief seeking a declaration that the termination of the Claimant’s employment is unlawful is not available to the Claimant whose employment does not have statutory flavor. Counsel reiterated that the Claimant’s employment with the Defendant is merely a master-servant relationship or an employment under common law and not one with statutory flavor. He cited the case of Shell Pet. Dev. Co v. Lawson Jack (1998) 4 NWLR (Pt.545) 249 and Imoloame v. West African Exams Council (1992) 9 NWLR (Pt.265) 303.

Counsel proceeded to assume that the relief is to declare that the termination was wrongful and argued that the position of the law is that a contract of employment is said to be wrongfully terminated where the legally prescribed procedure for its termination under the contract is not duly complied with. He cited the case of Okobi V. Sterling Bank Plc (2013) 30 NLLR (Pt. 86) 246. He added that an employee who complains or alleges wrongful termination of employment must establish to the satisfaction of the court the mode or manner of termination prescribed by the contract of employment which was breached by the employer. He cited the case of Tosamwumi v. Golf Agency and Shipping Nig. Ltd. (2011) 25 NLLR (Pt. 71) 200

Counsel further contended that the claim of the Claimant is that the termination of his employment by the Defendant without compensation for the injury he suffered while on duty which resulted to a permanent disability is irregular and unlawful. He then submitted that the Claimant has not shown by his averments in paragraphs 16 and 17 of his statement of fact that his termination was in breach of the terms of his contract of employment. He added that payment of compensation for injury suffered while on duty is not a pre-condition to be satisfied under Exhibit C2 before the Claimant can be terminated.

Counsel further posited that by Article 500.11 of Exhibit C11, the Claimant’s employment can be terminated on grounds of redundancy. Counsel cited the case of Union Bank Plc v. Salaudeen (2017) LPELR-43415(CA) on the meaning and import of redundancy. He also posited that the Defendant complied with the said provision of Exhibit C11 during the redundancy exercise which ultimately terminated the employment of the Claimant as well as some other employees of the Defendant. He added that the Defendant issued a Redundancy Letter dated 22^nd December 2016 (Exhibit DW1 (g)) to the Claimant, as required under Exhibit C11, giving the Claimant notice of the impending redundancy, terminating the employment of the Claimant and notifying the Claimant of the proposed payment of the contractual terminal benefits to him together with one month’s consolidated base salary in lieu of notice, ex-gratia payment of thirteen (13) months consolidated base salary, vacation allowance on pro-rata basis (if not yet taken), and any other bonuses or allowances due as per the Claimant’s condition of service. Counsel added that

in addition to these benefits, and in consideration for the Claimant’s loss of his job, the Defendant wrote off the outstanding amount in the Claimant’s car loan, soft loan (30% lump sum), the 2016 Housing upfront, Seventy Percent (70%) of the principal sum of the Employee House Ownership Scheme (EHOS) and Furniture Grant and offered him a onetime payment of N700,000.00 (Seven Hundred Thousand Naira) as Christmas parting gift.

Counsel posited that all the monies were paid by the Defendant and same was accepted by the Claimant. He then posited that the law is settled that where an employee accepts payment of terminal/severance benefits from the employer upon his termination, such employee will be estopped from complaining that his contract of employment was not properly determined because the receipt of payment renders the termination mutual. He cited the case of Gerawa Oil Mills Ltd V. Abdulkadir Manzo Babura (2018) LPELR-44720 (CA). he also cited the case of Samuel lsheno v. Julius Berger Nig. Plc (2006) 12 NWLR (Pt.995) 518 at 540 to posit that An employer who hires an employee under the common law has the corresponding right to fire him at any time, even without assigning any reason for so doing.

In arguing issue two, counsel posited that all the monetary claims made by the Claimant are in the nature of either special or general damages. Counsel submitted that the Claimant is not entitled to special, general or exemplary damages, whether as claimed or otherwise, as he has not been able to prove his entitlement to the damages claimed in line with established principles for the award of damages.

Counsel cited the case of Badmus v. Adegunde (1999) 11 NWLR (Pt. 627)493 at 502 to posit that the main distinction between special and general damages is that while special damages must be specifically pleaded and strictly proved by the Claimant, general damages can be presumed as the direct natural or probable consequence of the act complained of by the Claimant, where the measure of the damages to be awarded cannot be assessed unless by the opinion or judgment of a reasonable man.

Counsel further contended that to prove an entitlement to damages, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement and cited the cases of Otunba Gabriel Oladipo Abijo V. Promasidor (unreported, Ruling delivered on 17^th January, 2017 in NICN/LA/602/2014) Ltd23 and Mr. Mohammed Dungus & Ors v. Enl Consortium Ltd (2015) 60 NLLR (Pt.208) 39

Counsel submitted that in respect of the special damages of #30,000,000.00 that the Claimant has not proved that he suffered a permanent disability. He added that without prejudice to the

foregoing submission, the Claimant has also totally neglected to particularise how he arrived at “the sum of N30,000,000.00” claimed.

With regards to claim for #20,000,000.00 exemplary damages, counsel posited that the situation where exemplary damages are awarded are where the statute prescribes it, where the suit is as a result of an oppressive, arbitrary or unconstitutional at of government and where the defendant’s conduct has been calculated by him to make profit for himself which may well exceed the compensation payable to the plaintiff. He cited the case of Allied Bank Nig. Ltd. v Akubueze (1997) 6 NWLR (Pt. 509).

Counsel also cited the case of Universal Trust Bank of Nigeria v. Fidelia Ozoemena (1997) 6 NWLR (Pt.509) on the position of the law in relation to proof of negligence. He also referred the court to paragraphs 11, 19 and 20 of the statement of fact as well as paragraph 3(g) (h) and (f) of the Claimant’s reply and the testimony of the Claimant during cross examination to posit that the Claimant had failed to prove negligence on the part of the Defendant as he failed to prove the duty of care owed and how same was breached.

With regards to the Claim of N20,000,000 as Exemplary Damages and N30,000,000 as general damages for unlawful dismissal, counsel reiterated the position of the law on exemplary damages and added that it is unprecedented in Nigerian labour and employment jurisprudence for exemplary damages to be awarded for wrongful or unlawful termination or dismissal.

Counsel further reiterated that the employment of the Claimant was properly, validly and lawfully terminated on grounds of redundancy. Hence, the allegation of the Claimant to the effect that the termination of his employment by the Defendant being unlawful is untrue, contrived and spurious.

He further cited the case of Harka Air Services (Nig.) Limited v. Keazor Esq (2011) LPELR -1353 (SC) to posit that the court is not to award general damages in the air as the Claimant has not proved that the termination of his employment was either unlawful or wrongful. He contended that the Claimant has not proved that he suffered the litany of damages listed in its pleadings by any positive evidence.

With regards to Claim of N10,000,000.00 as cost of litigation, counsel posited that same is also special damages which must be specifically pleaded and strictly proved by the Claimant. Counsel cited the case of Odogwu v. A-G Fed. (1996) 6 NWLR (Pt.456) 508 (SC). He added that the Claimant has failed to plead, particularize and lead evidence in proof of the sum that is claimed as cost of this action and as such, the claim for cost of the action should be discountenanced in its entirety.

Counsel concluded by urging the court to discountenance the Claimant’s claims as being unfounded, frivolous and lacking in merit, and therefore dismiss same in favour of the Defendant with substantial cost on a full indemnity basis.

Reacting to the address of counsel to the Defendant, Counsel to the Claimant, V.K. Nenniibarini Esq. formulated a sole issue for determination to wit:

Whether from the entire evidence and circumstances of this case, the Claimant has made out a case, entitling him to get judgment as per the reliefs sought against the Defendant under the Employees Compensation Act, 2010 or at all?

Before arguing the sole issue, counsel contended with regards to the exhibits admitted under protest. With regards to Exhibit C8, an x-ray of the Claimant’s leg, counsel contended that it is an elementary law that a document that is pleaded and relevant but not frontloaded is admissible in evidence. With regards to Exhibit C15 and D2(a), counsel posited that section 84 requires certificate of identification. While in respect of Exhibit DW1 (c), DW1(e) and DW1(f), counsel referred to section 83 of the Evidence Act and contended that DW1 is not the maker.

With regards to Exhibit DW1(d), counsel posited that section 86 of Stamp Duties Act, documents not stamped is not admissible in evidence.

In arguing the sole issue, counsel submitted that the injury suffered by the Claimant during the course of discharging his duties in the course of his employment was as a result of the defendant’s negligence. He posited that the Claimant in paragraphs 7-13 of his written statement on oath dated 7^th March, 2018 vividly narrated how the accident that led to the injury he sustained happened. He also posited that the testimony of CW1 during cross examination corroborated the fact that the Defendant being an employer owed the Claimant a duty of care in his place of employment.

Counsel added that the duty of care includes the duty to provide the Claimant with safe working tools and equipment, safe and competent fellow workers and supervisors and a safe system of work. He cited the case of HANSEATIC INTERNATIONAL LTD VS. MARTIN USANG (2003) FWLR (PT. 149) 563 and submitted that it is not in doubt that the Defendant failed to provide the Claimant with safe fellows or servants in his place of employment leading to the injury he sustained in the course of his employment which was caused by an employee (supervisor) of the Defendant.

He submitted further that the Defendant failed to discharge the duty of providing safe working tools and equipment owed the Claimant in his place of employment. He added that the

Personal Protective Equipment (PPE) allegedly provided by the Defendant at the site could not have prevented the Claimant’s injury, rather to reduce the level of the injury. He referred to the testimony of DW3 during cross examination.

Counsel posited that there is sufficient evidence that as a result of the negligent acts of the Defendant, the Claimant suffered severe injury which led to conducting a major surgery like an Open Reduction Internal Fixation (ORIF).

Counsel further argued that it is trite law that for the Claimant to establish an action for negligence, he must show the following, (i) that the Defendant owed the Claimant a duty of care; (ii) that the Defendant failed to exercise that due care; (iii) that the Defendant’s failure caused the Claimant some injury. Counsel cited the cases of SILAS OSIGWE VS. UNIPETROL (2005) ALL FWLR (PT 261) 1525, NIGER MILLS COMPANY PLC VS. ENGINEER SAM I. AGLJBE (2008) ALL FWLR (427) 86 and concluded that the Claimant has adduced enough evidence to establish the three requirements. The Claimant has established in his case that the injury was as a direct result of the Defendant’s negligence which was proved at the trial.

Counsel also posited that it is clear that the Claimant is entitled to the reliefs sought under the Employees’ Compensation Act, 2010. Counsel cited and reproduced the provision of section 1 (a), section 12 (1) (2) and 73 of the Act to posit that the Claimant is entitled to compensation for injury suffered in the course of employment.

Counsel posited that the case of the Claimant before this honorable court is for compensation for an injury sustained while on a lawful duty for the Defendant and not the issue of payment of severance benefits/gratuity as misconceived by the Defendant’s counsel.

Counsel urged the court to grant the reliefs sought by the Claimant to deter the Defendant from subsequent actions. He added that punitive or exemplary damages are intended to punish and deter blameworthy conduct and thereby prevent the occurrence of the same act in the future and that they are awarded whenever the conduct of the Defendant is sufficiently outrageous to merit punishment as where, for instance, it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law. He cited the case of UNIVERSITY OF CALABAR VS. ORJI (2012) 3 NWLR (PT. 1288) 418.

With regards to claim for general damages, counsel cited the case of UBA PLC VS. MRS. VICTORIA FUNMILAYO OGUNDOKUN (2001) ALL FWLR (PT. 504) 1521 and posited that in the light of the circumstances, the claim for the pains and sleepless nights is by no means unreasonable.

With regards to cost of litigation, counsel posited that it would be right to state that the Claimant has spent some money to institute the instant case before this Honorable court, therefore, it would be proper for this honorable court to grant the relief of cost of litigation sought by the Claimant to encourage him and other future litigants as the court is seen to be the last hope of the common man.

Counsel concluded by urging the Court to disregard and discountenance the arguments and submissions of the Defendant which tends to mislead this Hounorable Court and divert its attention from compensation for an injury sustained while on a lawful duty for the Defendant to the issue of payment of severance benefits/gratuity which is different and distinguishable from the case of the Claimant. He also urged the court to enter judgment for the Claimant and award adequate compensation.

By way of reply on points of law, counsel to the Defendant, Inam Wilson Esq. cited section 12 (2) (b) of the National Industrial Court Act and Order 5 Rule 6 (1) (4) of the Rules of this Court with regards to the admissibility of Exhibits C15, DW1(c),DW1 (e) and DW1(f). He contended thereon that this Court is allowed to depart from reliance on the Evidence Act where such departure is in the interest of justice, fairness, equity and fair play. He added in other words, that the application of the Evidence Act to proceedings before this Honourable Court is neither rigid nor mandatory.

Counsel posited that the need for interest of justice and equity streams from the fact that during the course of the trial, the Claimant tendered a number of computer-generated evidence without complying with Section 84 (4) of the Evidence Act in providing a certificate of identification as required under the said section. However, in a bid to expedite the trial and avoid technicalities, the Defendant did not object to the admissibility of those documents.

With regards to Exhibits DW1 (c), DW1 (e) and DW1 (f), counsel contended that the said documents were issued to the Defendants by First Rivers Hospital. He added that the documents are in the same circumstance with Exhibits C5, C8, C14 which were also issued to the Claimant which had been admitted. He maintained the urge on the Court to depart from the provisions of the Evidence Act in the interest of justice.

With regards to Exhibit DW1 (d), Counsel contended that the section 86 cited by counsel to the Claimant in objecting to the admissibility of the said Exhibit is inappropriate and urged the court to disregard the argument. He contended that the Claimant’s counsel failed to put up any valid statutory or judicial authority that requires medical report to be stamped. He asked the

court to once again invoke the provision of the law which allows this court to depart from the provision of the Evidence Act.

With regards to Counsel to the Claimant’s contention that Claimant is entitled to compensation under the Employees Compensation Act, counsel contended that the case of the Claimant as found in the statement of fact is not based on the Employees Compensation Act as a claim under the Act ought to be pleaded. Counsel cited section 12 (1) of the Act and provided the meaning of ‘in lieu of’ as found in the said provision to posit that the provision of the Employee Compensation Act (ECA) operates in lieu of, i.e. ‘instead of’ or ‘in place of’ or in ‘exchange of’ any right of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action. Counsel added that the essence of the provision is that the Claimant cannot claim under both the ECA and the general law of tort.

He added further that assuming the ECA applies, by virtue of section 22 of the Act, it is the obligation of the Nigerian Social Insurance Trust Fund Management Board to make the payment for permanent disabilities as alleged by the Claimant. Counsel cited the case of Maduka v. Earth Moving Intl. Ltd & Anor. (2013) 33 NLLR 297.

Counsel also argued in respect of Article 500.06 of Exhibit C11 and contended that if at all there is a claim under the provision, it ought to be paid by the Company’s Insurance Company and same is dependent on an insurance policy which is not before the court.

Counsel concluded that the Claimant has failed to prove his case and urged the court to dismiss same as unfounded and unmeritorious.

Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties and the reply on point of law of the Defendant, the issues for the determination of this suit are to wit:

Whether the Defendant is liable in negligence for the injury sustained by the Claimant in the course of his employment.
Whether or not the claimant is entitled to the reliefs sought in view of the facts, evidence led and circumstances of this case?

Before taking on the issues seriatim, it is incumbent upon this court to address the status of the exhibits C8, C15, DW1 (c), DW1(d), DW1(e) and DW1(f) and D2(a) which were all admitted under protest.

With regards to C8, the contention of Counsel to the Defendant is that same was not frontloaded while the counsel to the Claimant responded that same was not frontloaded due to the size and that frontloading a document is not a prerequisite for admissibility of same.

In view of the contention, I have taken a look at the said Exhibit C8 and found that same is an X-ray of the left leg of the Claimant and found that same may not have been convenient to be frontloaded. In addition, the legal position is that documents should not be rejected for failure to frontload same particularly in view of the fact that the Evidence Act does not make frontloading a document a prerequisite for admissibility. The court in OGBORU V. UDUAGHAN (2011) 2 NWLR 538 posited that:

“…there is the liberal approach founded on a consideration of the attainment of substantial justice. According to this approach, the rejection of documents because they were not frontloaded would occasion a miscarriage of justice.” PER DONGBAN-MENSEM, J.C.A. ( Pp.38-40. E-G).

Consequent upon the foregoing, the contention of counsel to the Defendant is discountenanced and the said Exhibit C8 is admitted in evidence.

With regards to Exhibit C15 and DW2(a), counsel to the Claimant posited that the documents are computer generated documents and there is no compliance with the provision of section 84(4) of the Evidence Act. Counsel to the Defendant on his part, particularly in respect of Exhibit C15, urged the court to depart from the provision of the Evidence Act in this regard in view of the fact that the said document is relevant and has been pleaded. He added that the Claimant has also tendered documents which were computer generated that have been admitted without compliance with the Evidence Act.

I have taken a look at the said Exhibit C15 which is a photocopy of images of certain iron bar and DW2(a) which is a printout of a mail sent by one Vincent Onwo to Akeem Mustapha in respect of the condition of the Claimant after the accident. I find same to be relevant in relation to the facts in issue before this court.

That notwithstanding, I reckon that the Evidence Act by section 84 (4) requires a statement in relation to how documents are produced by a computer and other details of the person who produced same and there is no doubt that the requirement is generally sacrosanct for admissibility of computer generated evidence.

However, I have also considered the provisions of section 12 (2) (b) of the National Industrial Court Act which provided to the effect that this court shall be bound by the Evidence Act but may depart from it in the interest of justice. The rules of this court by Order 5 Rule 6 (1) makes similar provision. In view of the provision of the Rules of this Court and the National Industrial Court Act, I have reviewed the general nature of all the documents before this court and find it appropriate to invoke the provision of the National Industrial Court Act by departing from the rule of evidence requiring certification of the Computer generated documents before this court.

Consequent upon the departure, the said exhibit C15 and DW2(a) are considered relevant and admissible and same are accordingly admitted in evidence.

With regards to DW1 (c), DW1(e) and DW1(f), counsel to the Claimant contended that the documents were not tendered by the makers of the document and thereby inadmissible in line with section 83 of the Evidence Act. Counsel to the Defendant responded by contending that the Claimant has tendered similar documents (C5 and C14) which the Claimant is not the maker. Therefore, the court should for the sake of fair play and equity jettison the provision of the Evidence Act in line with section 12 (2) (b) of the National Industrial Court Act.

In view of the contention, I have taken a keen look at the said exhibits and found that they are letters/medical certificate and medical report in respect of the Claimant’s fitness addressed to the Medical Advisor of the Defendant and written by First Rivers Hospital Limited.

In view of the finding, I find it apposite to consider the provision of section 83 of the Evidence Act. Although Counsel to the Claimant did not specifically state what subsection he is relying on for his contention, I find that while section 83 (1) generally requires that in a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall on production of the original document, be admissible as evidence of that fact if certain conditions are satisfied.

Subsection (2) however provides that “In any proceeding, the court may at any stage of the proceeding, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made admit such a statement in evidence…”

In view of the general provision of section 83 (1) of the Evidence Act, I find it apposite to state that the section is applicable to instances of production of the original of a document. In the instance case, the said exhibits are not the originals. They are copies of the said documents.

In addition, to the foregoing, this court finds it apposite in view of the circumstances of this case to depart from the provision of the Evidence Act in relation to the said Exhibits in the interest of justice.

Consequently, the said Exhibits DW1(c), DW1(e) and DW1 (f) are accordingly admitted in evidence.

With regards to Exhibit DW1(d), counsel to the Claimant contended that the said document bears no stamp and thereby fails to meet the condition laid down in section 86 of the Stamp Duties Act. Counsel to the Defendant in response contended that section 86 of Stamp Duties Act cited by the Counsel to the Claimant bears no nexus and there is no judicial authority requiring that medical receipts ought to be stamped.

In view of the foregoing contention, I have taken a keen look at the said exhibit and find that same is a photocopy of 9 receipts issued to the Defendant by First Rivers Hospital Ltd.

I have also taken a look at the said section 86 of the Stamp duties Act and cannot find any such requirement for the stamping of the receipt before same is tenable in evidence. As rightly contended by counsel to the Defendant, section 86 cited by the Counsel to the Claimant reads:

“a policy of marine insurance shall be charged with the duty prescribed in the Schedule to this Act”

The provision has no bearing on the admissibility of the receipts. Consequently, the contention of counsel to the Claimant is unsubstantiated and accordingly discountenanced. The said Exhibit DW1(d) is accordingly admitted in evidence.

I then turn to the issues for determination.

With regards to issue one which is “whether the Defendant is liable in negligence for the injury sustained by the Claimant in the course of his employment”, I must state for the sake of clarity that the issue is formulated in view of the second relief sought by the Claimant. The said relief is a declaratory relief upon which other monetary claims are made. For want of emphasis, the said second relief is for “A DECLARATION that the injury the Claimant suffered while on duty in the Defendant’s workplace was as a result of the Defendant’s negligence”. I also find it apposite to state that the said issue one is formulated in view of the fact that a large portion of the facts before this court are facts relating to the role of the Defendant in connection to the injury suffered by the Claimant for which he wants compensation.

Having said that, the resolution of the said issue is dependent on ascertaining whether the Defendant was negligent in the course of the injury sustained by the Claimant. In this regard, it is ideal to ascertain what the Claimant must prove to establish a case of negligence and the court in the case of LUFTHANSA GERMAN AIRLINES V. BALLANYNE (2012) LPELR-7977(CA) has in this respect posited that:

“It is a trite general principle, that for negligence to be actionable, the complainant (Claimant) has an onus of establishing that:

(a) the defendant owes a duty of care thereto;

(b) the duty of care has been breached by the defendant; and

(c) in consequence of the breach of the duty of care in question, damages has been occasioned to the complainant”. Per SAULAWA, J.C.A (Pp. 20-21, paras. G-E).

The Supreme Court in U.T.B. Nig V Ozoemena (2007) 1 SC (Pt.11) 211 at 227-229 held a similar position when it stated that:

“In an action for negligence, a plaintiff can only succeed if in addition to pleading it and particulars thereof, he or she shows the duty of care owed to him or her by the defendant and the breach of that duty by the defendant. It is not enough to allege all these in pleadings without establishing them by credible and reliable evidence at the trial.

What is most discernible from the foregoing authorities is the essence of a ‘duty of care’ in a case of negligence. The court in UBA PLC v. COMRADE CYCLE LTD & ANOR (2013) LPELR-20737(CA) confirmed the essence of duty of care in a case of negligence when it held that:

“The issue of ‘duty of care’ is synonymous with a claim in negligence; it is one of the constituent elements to be established in a case predicated on negligence. see Abubakar v. Joseph (2008) 13 NWLR (Pt 1104) 307, Iyere V. Bendel Feeds and Flour Mills Ltd (2008) 18 NWLR (pt 1119) 300, GKF Investment Nigeria Ltd v. Nigerian Telecommunications Plc (2009) 15 NWLR (Pt 1164) 344.” Per ABIRU, J.C.A (Pp 22-23,Paras G-A)

What then is a ‘duty of care’ and what is such duty of care in the instant case which is alleged to have been breached? with regards to the meaning of ‘duty of care’, the court in the case of Oilserv Ltd. v. L.A.I. & CO. (Nig.) Ltd. (2008) 2 NWLR (Part 1083) posited that:

“Duty of care means taking reasonable care to avoid acts/omissions which one can reasonably foresee would be likely to injure his neighbour.”PER RHODES- VIVOUR, J.C.A. (P. 19, Paras. E)

In the instant case, the Claimant was an employee of the Defendant as clearly established by Exhibit C2 which is the letter of employment, Exhibit C3 which is the letter of confirmation of employment and Exhibit C4 which is the Notification of Promotion of the Claimant. Consequently, the relationship that existed between the Claimant and Defendant was that of employer-employee. Hence, the duty of care in question is that which exists between an employer and an employee. This duty has been recognized under the Common law and the court in the case of KABO AIR LIMITED v. ISMAIL MOHAMMED (2014) LPELR-23614(CA) held that:

“…it is settled law that it is the duty of an employer, acting personally or through his servants or agents, to take reasonable care for the safety of his workmen and other employees in the course of their employment. This duty extends in particular to the safety of the place of work, the plant and machinery and the method and conduct of work – Avon Crown Caps & Containers Nig. Ltd v. Bamigboye (2005) 17 NWLR (Pt. 954) 275…” Per ABIRU, J.C.A. (Pp. 34-35, paras. C-F).

The court in the same case appreciated the standard of the duty owed by the employer towards the employee when it held that:

“The standard of an employer’s duty towards his employee under common law is to see that reasonable care is taken – Hanseatic International Ltd v. Usang (2002) 13 NWLR (Pt. 784) 376. Reasonable care is that degree of care which a person of ordinary prudence would exercise in the same or similar circumstances.” Per ABIRU, J.C.A. (P. 43, paras. E-G)

Having found the nature of duty of care existent between the parties, the question that necessarily follows is whether the duty of care was breached by the Defendant and whether it is the breach that occasioned damage to the Claimant.

In attempt by the Claimant to prove the breach, Claimant posited that on the 10^th of July, 2014, the Claimant, his supervisor and crew members were informed that the barge where the equipment of the Defendant had shifted and needed to be put in the right position. The Claimant, his supervisor and the crew members all swung into action and the Claimant put on his Personnel Protective Equipment (PPE). While they were working on the barge, the Claimant was asked by his supervisor to give him support in pulling out an iron bar. The weight of the iron fell on his side and broke his leg. The Claimant confirmed that the iron bar presented in Exhibit C15 is the Chisan (iron bar) that was being uncoupled. The Claimant posited that he was given first aid treatment before he was taken to the hospital. At the Hospital, it was discovered that the bone in his left leg was broken into three. The leg was operated upon and steel was installed inside. The Claimant tendered Exhibit C8, an X-ray from Braithwaite Memorial Specialist Hospital to prove that there was a metal implant in his left leg.

In view of the forgoing, the Claimant’s counsel contended that the Defendant was negligent in that “if the Defendant had provided the Claimant with the right tools and equipment, he would not have suffered such injury and if the Defendant’s workers were properly trained, the Claimant’s supervisor would have known better than direct and watch over him sustaining the injury”.

The Defendant in reaction denied liability in negligence by positing that the Defendant was not responsible for the shifting of the Barge following tidal movement which was primarily responsible for the accident and could not with reasonable diligence have prevented the accident from occurring. The Defendant added that it provided all necessary equipment for the safety of the Claimant and all other employees particularly PPE which the Defendant ensured that the Claimant was wearing prior to the accident. The Defendant posited that immediately after the accident, the Claimant was rushed to an on-site medical personnel who administered first aid. The Defendant also covered all medical expenses of the Claimant.

The Defendant tendered exhibits Dw1(b) which is the medical bill issued by First Rivers Hospital Ltd in respect of the treatment given to the Claimant. The Defendant also tendered Exhibit DW1(d), copies of receipts of payment made to First Rivers Hospital Ltd to prove that the medical bills have been settled by the Defendant in treatment of the Claimant. Also, the Defendant tendered Exhibit DW1(c), (e) and (f) to prove that the Hospital was feeding the Defendant with the medical progress of the Claimant and that the Claimant had been certified fit. The last of the report stating that the Claimant was certified fit for full duties on 21/5/15, 10 months post operation. By the same Exhibit DW1(f), dated the 2^nd of January, 2017, the Claimant was upon his last review on the 23/12/16, booked for the removal of implant on 13/1/17.

In view of the forgoing and in answering the question of whether the Defendant was negligent, I take into cognizance the fact that the injury that the Claimant suffered on the 10^th of July, 2014 was as a result of an accident. I also take cognizance of the fact that the Defendant provided the Claimant with what is called Personnel Protective Equipment (PPE). During cross examination, the DW2 clarified that the PPE consist of Hard Hat, Eye goggles, Overall, Impact Resistant Hard Gloves and Safety Boots. The Defendant did not stop at merely providing the PPE, it went further in ensuring the Claimant wore same.

It is the considered view of this court that the Defendant had done all that was reasonably necessary to show that it cared for the employee as his neighbor prior to the accident. The essence of the provision of the PPE is to anticipate work hazard which has no exactitude in measure. It must be borne in mind that the PPE is not to prevent accidents, it is to minimize the impact of minor accidents in workplace. I must also add that the narrative of the accident as recounted clearly shows that the accident is not such that is reasonably foreseeable by the Defendant especially considering the narrative of DW3 that the accident happened at night and that accidents don’t give time to count.

In this regard, Black’s Law Dictionary, tenth edition at page 18 defines accident as “an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated”.

In the instant suit, I find that the facts and evidence before this court clearly proves that a reasonable man could not have foreseen the need to prevent the iron from falling on the Claimant’s leg especially in view of the fact that the Claimant himself was the one who pulled the iron even though it was on the direction of the supervisor. This he recounted during cross examination. The contention of counsel to the Claimant that the PPE was inadequate is also unsustainable in view of the fact that it will be ridiculous to expect the Claimant to put on iron wear to prevent the impact of the fallen iron.

In addition, upon the occurrence of the accident, the Defendant further provided first aid treatment which proves that the duty of care exists even in anticipation of injury. The defendant did not stop at that, the Defendant ensured that the Claimant was given all the necessary treatment as manifested by Exhibits DW1(b), (c), (d), (e) and (f).

Furthermore, I take into account the actions of the Defendant after the accident in providing the Claimant with Exhibit C7, the Crutches which the Claimant tendered in evidence and left with the court. Defendant also accorded the Claimant sick leave to be absent from work until he was certified fit to perform light duties. Claimant himself admitted he resumed work on light duties. This perhaps further buttresses the fact that the Defendant exercised duty of care towards the Claimant after the accident as it did not demand of the Claimant, a work more than he could reasonably do in view of the injury that resulted from the accident.

That said, I must conclude on this issue by asserting that the mere fact that an accident occurred does not in itself establish negligence. There will be negligence only if there are no measures put in place to prevent the occurrence of a reasonably foreseeable accident and where same exhibits lack of due care. In the instant case, the Claimant has failed to prove that the accident was reasonably foreseeable, and that the Defendant breached its duty of care owed to him as an employee in the course of work.

Negligence cannot be established without proof of breach of a duty of care and the court in the case of Susainah (Trawling Vessel) v. Abogun (2007) 1 NWLR (Pt.1016) pg.456 had held that:

“Mere accident however, cannot ground an action for damages. In order to succeed in an action of claim for negligence, the plaintiff must plead and prove that the accident was as a result of the negligence of the defendant…”See Fan Milk Ltd. v Edemeroh (2000) 9 NWLR (Pt.672) 402; Ngilari v. Mothercat Ltd. (1999) 13 NWLR (pt.636) 626; Merchantile Bank of Nigeria Ltd. v. Abusomwan (1986) 2 NWLR (pt.22) 270; Nigeria Bottling Company Limited v. Ngonadi (1985) 1 NWLR (pt.4) 739.” Per GALINJE, J.C.A. (Pp.29-30, Paras.D-A).

Consequent upon the foregoing, issue one is resolved against the Claimant and in favour of the Defendant to the effect that the Defendant is not liable in negligence for the injury sustained by the Claimant in the course of his employment.

Issue two is “Whether or not the claimant is entitled to the reliefs sought in view of the facts, circumstances of this case?

In resolving this issue, there is no gainsaying that same touches on the reliefs sought by the Claimant. Consequently, the issue shall be resolved in view of each relief sought.

With regards to relief (a), the said relief is for “A DECLARATION that the termination of the Claimant’s employment by the Defendant without compensation for the injury he suffered while on duty which resulted to a permanent disability and on the purported ground of redundancy is irregular and unlawful”.

Before addressing relief (a), I must state that I take into cognizance the fact that counsel to the Claimant perhaps consciously avoided making any argument in relation to the termination of the Claimant’s employment as the argument put forward in the Claimant’s final address dwelled largely on compensation. Counsel to the Claimant particularly stated that “the case of the Claimant before this Honourable Court is for compensation for an injury sustained while on a lawful duty for the Defendant and not issue of payment of severance benefit/gratuity as misconceived by the Defendant’s counsel”.

The position of the counsel to the Claimant drew the attention of this court to take a keen look at the said relief (a) which indeed is for the court to declare that the termination of employment without compensation for the injury he suffered while on lawful duty is unlawful. In other words, counsel to the Claimant is perhaps contending that the Claimant is not challenging the termination in itself, but he is challenging the failure to pay compensation upon the termination.

Notwithstanding the incongruity arising from the couching of relief (a), this court makes out two sub issues from the said relief. The first is whether the employment of the Claimant was wrongfully terminated and the second is whether the Defendant is liable to pay the Claimant compensation for injury sustained.

Before I address the sub issues, I should state that it was also observed that counsel to the Claimant for the first time in the Claimant’s final address introduced the issue of payment of compensation to the Claimant under the Employees Compensation Act. Counsel argued that section 12 (1) and (2) of the Employees Compensation Act makes the Defendant liable for the injury sustained by the Claimant.

On the part of the Defendant, Counsel to the Defendant addressed the issue of whether the termination of employment of the Claimant being unlawful and irregular. Counsel to the Defendant also addressed the issue of liability for claim under employment compensation Act. with regards to the latter, counsel to the Defendant replied on point of law citing section 22 (1) of the Employees Compensation Act to contend that compensation under the Act does not lie with the Defendant as the Employer but with the Nigerian Social Insurance Trust Fund Management Board. Counsel added that the Claimant cannot make a case of negligence and at the same time that of Employment compensation as section 12 (1) makes it optional.

In view of the forgoing, I must state that the Claimant is attempting to introduce a new suit through the written address filed on behalf of the Claimant. It is settled that a final address does not replace pleadings which is wherefrom the case of parties are clearly presented. The court in ALHAJI ISA TAFIDA & ANOR v. ALHAJI YARO GARBA (2013) LPELR-22076(CA) posited that:

“Counsel’s address, no matter how eloquent and brilliant, cannot take the place of pleadings.” Per AGUBE, J.C.A. (P. 79, paras. B-C).

The pleadings before this court as recounted earlier is simply to establish two things: One, that the Claimant suffered injury in the course of his employment through the negligence of the Defendant; and two, that the Defendant terminated the employment of the Claimant without paying compensation for the injury he suffered.

The suit before this court is not one brought under the provision of the Employees Compensation Act as introduced by counsel to the Claimant and all arguments in that regard is accordingly discountenanced.

Having said that, this court shall for abundance of caution address the issue of whether or not the termination of the Claimant’s employment is unlawful and irregular before determining whether the Claimant is entitled to relief (a). To do that, the starting point is to ascertain the nature of employment that existed between the Plaintiff and the Defendant. The court in SALAMI v. UNION BANK OF NIGERIA PLC (2010) LPELR-8975(CA) had identified three categories of employment when it held that:

“The law is settled that types of employment can be conveniently classified into three namely, (i) those regarded as purely master and servant; (ii) those where a servant is said to hold an office at the pleasure of the employer; and (iii) those where the employment is regulated or governed by statute, often referred to as having statutory flavour. In this regard, see the case of CENTRAL BANK OF NIGERIA V. IGWILLO [2007] 14 NWLR (Pt. 1054) 393.” Per LOKULO-SODIPE, J.C.A. (P.22, Paras.E-G).

In view of the three types of employment identified by the court, it is beyond conjecture that the Claimant was employed under a master-servant relationship in view of Exhibit C2, the letter of employment, and the Defendant being a private company limited by shares and registered under the extant laws in Nigeria.

The essence of identifying the nature of the employment is to determine the consequence of the termination of each type of employment. To be precise, the termination of an employment under a master-servant relationship has generally been regarded as wrongful where same is not in accordance with the terms of employment and not illegal, unlawful nor null and void. In this regard, the court in BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) held that:

“There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of

employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F)

Consequent upon the foregoing, the implication of the termination of the Claimant’s employment if same is found to have been contrary to the terms of employment can only be declared wrongful and not unlawful as sought by the Claimant.

The next question therefore is whether the termination of the Claimant’s employment is wrongful? The Claimant has alleged that the Defendant terminated his employment based on a purported redundancy without paying him compensation for the injury sustained.

It is settled that, in a case of wrongful termination of employment, the burden is on the Claimant to plead the terms of the Contract of employment and how same is breached. The court in AUDU V. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD & ANOR. (2010) LPELR-3824(CA) held that:

“It has been firmly established that when an employee complains that his employment was wrongfully terminated, he has the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. It is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts. Okomu Oil Palm Co. V. Iserhienrhien (2001) 5 NSCQR 802.” Per Odili, JCA (P.23, Paras B-D)

In the instant case, the Claimant tendered Exhibit C2 which is the letter of employment containing some terms. Exhibit C2 stated that all other condition of service are contained in the HESNL condition of service which forms part of the employment. The HESNL was tendered as Exhibit C11.

The Claimant however did not prove how the termination of his employment was wrongful but merely pleaded that the Defendant terminated his employment on the 22^nd of December,2016 because he was not useful to them.

The Defendant on its part tendered Exhibit DW1(g) which is the notice of redundancy dated the 22^nd of December, 2016 to prove that the Claimant was paid one month salary in lieu of notice and other terminal benefits. The Defendant denied terminating the employment on

ground that the Claimant was useless but due to the downturn in the oil and gas sector as the Claimant had continued work with the Defendant long after his injury.

Counsel to the Defendant contended that the termination was in line with Article 500.11 and section 2 of Exhibit C11. While counsel to the Claimant as earlier noted contended that the Claimant is not claiming terminal benefit.

That notwithstanding, I have taken a look at the said Exhibit C11 and find that the ‘BENEFITS’ that the Claimant is entitled to when his employment is terminated due to redundancy includes:

– one month consolidated salary in lieu of notice

– One point five (1.50 of 1 MCS) of one month consolidated salary per year of service up to a maximum of 30 years of service based on current salary.

– Accrued annual vacation on pro rata basis

– Job bonus

– Fraction year of service to be pro-rated

– Gratuity shall apply as per the existing table

– Any other benefits due as contained in this collective agreement.

A consideration of the above benefits shows that the termination of Claimant’s employment based on redundancy has no nexus with payment of compensation for injury sustained. Consequently, it is the finding of this court that it is not a prerequisite for compensation, whether owed or not, to be paid before the Defendant can terminate the employment of the Claimant. In other words, the failure of the Defendant to pay compensation to the Claimant does not make the termination of the Claimant’s employment wrongful.

In addition, it must be borne in mind that in a master-servant employment, the employer can terminate the employment at any time. The court in the case of SPRING BANK PLC V. BABATUNDE (2011) LPELR-4975(CA) posited that:

“It is trite law that a master can terminate the contract of employment with his servant at any time and for any reason or for no reason whatsoever.” Per Iyizoba, J.C.A. (P.21, Para.A)

In view of the foregoing, and for the sake of clarity, I must state that the termination of the employment of the Claimant was proper having been paid salary in lieu of notice as evidenced in Exhibit DW1(g). Hence, the termination was not wrongful.

I then turn to determine whether the Defendant is obligated to pay the Claimant Compensation. In this regard, I reckon that Counsel to the Claimant posited that Article 500.06 of Exhibit C11 is applicable to the Claimant’s case as the injury sustained by the Claimant was in the course of performing the task he was assigned to do in the course of his employment.

Counsel to the Defendant in response contended that compensation under the said Article 500.06 is to be paid by the Aiico Plc. Which is the named insurance company and same is based on a policy called Group Personal Accident. He added that the formula for calculating the compensation and the quantum of compensation to be paid are contained in the policy which is not in evidence before the court hence the claim for compensation must fail.

In view of the foregoing contention, I have taken a look at the said Article 500.06 of Exhibit C11 which is the condition of service that guided the employment of the Claimant.

The said Article states that:

“Any accident or injury occurring to an employee during the course of his employment must be reported immediately to management. Compensation for accident or injury at work will be paid in accordance with the Company’s policy with Aiico Plc on Group Personal Accident”.

In view of the foregoing, I must state that the condition of service and its content is very pivotal in determining the rights of parties to an employment relationship as the court in the case of SEVEN-UP BOTTLING COMPANY PLC v. AJAYI (2007) LPELR-8765(CA) posited with authority that:

“It is well stated in many authorities that a condition of service is the bed rock upon which an aggrieved employee must found his case. Therefore in a matter of contract of service the court will not look outside the terms as stipulated or agreed to therein to decide the rights of the parties. KATTO v. CBN (1999) 5 NWLR PT. 607, 390.” Per SHOREMI, J.C.A (P. 25, paras. A-B)

Furthermore, I must add that in view of the provision of the said Article 500.06, the duty of this court is to interpret the above provision and make a pronouncement thereon. The court in WEMA BANK PLC v. OSILARU (2008) 10 NWLR (Pt.1094) 150 at 177, paras. F-G (CA) held that “It is trite that where the language of an agreement is clear and unambiguous, the only interpretative jurisdiction of the court is to make pronouncement on the clear and unambiguous agreement and agree with them. The court is not to interfere at all. See First Bank of Nigeria v. Songonuga (2007) 3 NWLR (pt. 1021) 230.” Per OKORO, J.C.A. (Pp. 28-29, paras. D-A).

In carrying out the interpretive duty, this court finds that the Claimant was an employee of the Defendant at the time the accident happened on the 10^th of July, 2014. It is also established via Exhibit C5 (Medical Report from First Rivers Hospital), exhibits C6 (pictures of the Claimant’s injured leg), Exhibit C8 (x-ray) and Exhibit C7 (crutches) that the Claimant indeed suffered injury to his leg while the testimony of the Claimant himself in court proved that the injury was a result of an accident which occurred in the course of employment.

Although I must state that it is not established that the injury of the Claimant resulted to a permanent disability in view of the fact that the Claimant had been declared fit to work with the Defendant via Exhibit DW1(f) dated 22^nd May, 2015 and the Claimant indeed worked with the Defendant till 22^nd December, 2016. Also, Exhibit DW1(c) shows clearly that the Claimant had been scheduled for the removal of the stainless steel implant in his leg since 13^th of January, 2017 but he has refused to attend the Hospital for the removal of the implant because according to him, “the Defendant have failed in their agreement for Compensation”.

Putting the above finding in view of the provision of Article 500.06 however, I find that the said Article does not state that the injury must be of a permanent nature before compensation is paid. Neither does it state that it is the insurance company that will pay the compensation, it only said compensation will be paid in accordance with the Company’s policy.

The words of the Article are clear and unambiguous to the effect that the Claimant is entitled to compensation as long as he suffers an injury at work. The facts before this court and the evidence presented by the Claimant proved beyond doubt that he sustained injury in the course of his work for the Defendant and by the provision of Article 500.06 of the Condition of Service binding between the Claimant and the Defendant, the Claimant is entitled to Compensation. Although, the amount of compensation and how it is to be paid is a different issue in view of the provision of the said Article 500.06. Also, the failure to pay the compensation by the Defendant can only be considered to be wrongful as it is violation of the condition of service and not unlawful.

Consequent upon the foregoing, relief (a) is granted to the effect that the court makes:

“a declaration that failure of the Defendant to pay the Claimant compensation for injury sustained in the course of his employment with the Defendant is wrongful”

Relief (b) is also for a declaratory relief as it is for “A DECLARATION that the injury the Claimant suffered while on duty in the Defendant’s workplace was as a result of the Defendant’s negligence”.

In consideration of this relief, there is no gainsaying that the burden in on the Claimant to proof that he is entitled to the said declaration. The discharge of the burden also does not depend on the weakness of the case of the Defendant nor the admission. The court in IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS (2012) LPELR-8621(CA) with regards to the entitlement to declaratory reliefs held that:

“Declaratory reliefs are not granted as a matter of course but on credible evidence led. This is so even where the other partly admits the claims. See David Fabunmi Vs Agbe (1985) 1NWLR (pt.2) 316.”Per TSAMIYA, J.C.A.(P. 22, para. A.

The forgoing presupposes that the Claimant is required to prove that the Defendant was negligent in relation to the injury he suffered in the course of his employment. In this regard, the evidence before this court have been evaluated while addressing issue one above and this Court has come to a logical conclusion that the Defendant did not breach any duty of care owed to the Claimant and consequently was not negligent towards the Claimant. The court also found that the injury sustained by the Claimant was as a result of an accident which could not have been reasonably foreseen.

Consequent upon the foregoing, the Claimant has failed to prove that he is entitled to the declaration sought in relief (b) and same is accordingly refused.

Relief (c) is for “the sum of N30,000,000.00 (Thirty Million Naira) being special damages for the permanent disability.”

With regards to this relief, counsel to the Defendant contended that the Claimant has failed to prove that he is permanently disabled and that he also failed to show the court how he came up with the sum claimed. Counsel to the Claimant on the other contended that the permanent injury of the Claimant has reduced his ability to walk and to enjoy the ordinary amenities of life.

In view of the foregoing contention, I should start by stating the position of the law on special damages. The court in A.C.B. v Okonkwo (1997) 1 NWLR (Pt.480) 194 p. @ 206 paras. D – E posited that:

“The rule in respect of the claim in special damages is that special damages are items of loss which the plaintiff must particularise in his pleading to enable him give evidence thereof and recover thereon. These must be strictly proved.” Per Ejiwunmi, J.C.A.

The court in IROAGANACHI v. MADUBUKO & ANOR (2016) LPELR-40048(CA) added that:

“The law is strict when it comes to proof of special damages, that the Plaintiff has a duty to plead and strictly prove every item of claim and the cost thereof, to succeed, whereas, general damages is presumed as being consequential flowing from the act of the defendant. See the case of Iwuagwu Ors Vs Uzoma Osigwe (2014) LPELR – 237819 (CA); Chevron Nig Ltd. Vs UBA Plc (2005) 11 MJSC 69 at 73; Cameroon Airlines Vs Oluluizu (2011)4 NWLR (PT.1238) 512; Spring Bank Plc Vs Adekunle (2011)1 NWLR (Pt.1229)581.” Per MBABA, J.C.A. (P. 45, Paras. B-D).

In attempt to prove the special damages for permanent disability, I reckon that the Claimant posited that he is 45 years old and has 15 more years to work but his employment was terminated by the Defendant because he was not useful to them. During cross examination, the Claimant also stated that he cannot walk or do anything a normal person can do.

Apart from the foregoing, the Claimant did not put any other evidence before this court to establish permanent disability particularly from a medical perspective. He also did not particularize how he arrived at the sum claimed either.

I must also add that this Court had earlier found that the injury sustained by the Claimant did not result to permanent disability in view of the fact that the Claimant worked with the Defendant for about two years before his employment was terminated.

Consequently, the Claimant has failed to present cogent, credible and convincing evidence in proof of permanent disability and special damages for same. On the basis of such dearth of credible evidence, Relief (c) is accordingly refused.

Relief (d) and (e) are for exemplary damages and I find it apposite to consider same together.

While relief (d) is for “the sum of N20, 000,000.00 (Twenty Million Naira) being exemplary damages against the Defendant for its negligence which resulted in the injury on the Claimants left leg”;

Relief (e) is on the other hand for “the sum of N20, 000,000.00 (Twenty Million Naira) being exemplary damages for unlawful dismissal of the Claimant by the Defendant without compensation for the permanent disability”.

It is ideal to foremost appreciate the nature of exemplary damages. In this regard, the court in Obinwa v. C.O.P. (2007) 11 N.W.L.R. (Pt. 1045) 411 at 426-427, paras. G-C (CA) posited that:

“Exemplary damages will be awarded against a defendant in three instances. These are:

(a) Where there is an express authorization by statute.

(b) In the case of oppressive, arbitrary or unconstitutional action by the servants of the government.

(c) Where the defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff.

In order to succeed, a plaintiff must be able to prove any of the three conditions. He need not prove all the three conditions to succeed. Once any of the three conditions is proved, a court of law will award exemplary damages”. Per Owoade JCA.

In view of the forgoing, it is apposite to state that in the instant case, the Claimant has not presented any statute wherein the Defendant is authorized to pay damages. The Claimant has also failed to prove that the Defendant bore an oppressive or arbitral conduct towards him in relation to the injury the Claimant sustained which this court has held not to be as a result of negligence. Also, the Claimant has failed to prove the conduct of the Defendant which is calculated to make profit for itself.

In addition to the foregoing, relief (d) is on the one hand dependent on success of relief (b) which is for a declaration that the Defendant was negligent and which this court had earlier refused. Consequently, relief (d) is bound to fail for lack of proof of negligence and same is accordingly refused.

Relief (e) is on the other hand dependent on whether the termination of the Claimant’s employment was unlawful as the Claimant urged the court to declare in relief (a). In the consideration of the said relief (a), this court found that the termination of the Claimant’s employment was proper as same is in accordance with Exhibit C11. Upon the finding that the termination of the Claimant’s employment was not in itself wrongful nor unlawful, there is no basis for award of any form of damages in that regard. Consequently, relief (e) is accordingly refused.

Relief (f) is for the “sum of N30,000,000.00 (Thirty Million Naira) only as general damages for the emotional, mental, physical and psychological trauma and health challenges suffered by the Claimant as a result of the unlawful termination of his employment without compensation for the permanent disability”.

The said relief though is one of general damages, which does not require specific pleading or proof and the award of same is at the discretion of the court. The court in UNILORIN TEACHING HOSPITAL V. ABEGUNDE (2013) LPELR-21375(CA) held that:

“General damages are those damages that the law presumes as flowing from the wrong complained of by the victim. They need not be specifically pleaded and strictly proved, see UBN Plc v. Ajabule (supra); Neka B.B.B. Mfg. Co. Ltd. v. ACB Ltd. (supra). It is at the discretion of the court to award general damages, see Cameroon Air Lines v. Otutuizu (supra); Ahmed v. CBN (supra).” Per OGBUINYA, J.C.A. (P. 46, paras. C-E).

The Supreme Court in the case of UBN PLC v. AJABULE & ANOR (2011) LPELR-8239(SC) also pronounced on the nature of general damages when it held that:

“It is settled law that general damages are always made as a claim at large. The quantum need not be pleaded and proved. The award is quantified by what in the opinion of a reasonable person is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, from the act or conduct of the Defendant. It does not depend upon calculation made and figure arrived at from specific items. See Odulaja v. Haddad (1973) 11 S.C. 357; Lar v. Stirling Astaldi Limited (1977) 11- 12 S.C. 53 and Osuji v. Isiocha (1989) 3 N.W.L.R. (Pt. 111) 623.” Per MOHAMMED, J.S.C (P. 27, paras. B-E)

In this instance, the general damages is sought by the Claimant for emotional, mental, physical and psychological trauma and health challenges suffered due to the termination of his employment without payment of compensation for the injury sustained in the course of employment.

In view of the grounds upon which the general damages is predicated, I must state that general damages is not to be considered for the termination of the Claimants employment in itself as the law is settled that the damages a person claiming wrongful termination would get is the salary in lieu of notice in addition to other terminal benefits. The damages do not include or take account of speculative or sentimental values. See SHENA SECURITY COMPANY LTD V. AFROPAK (NIGERIA) LTD & ORS. (2008) LPELR-3052(SC)

The consideration of the grounds in view of the failure of the Defendant to pay compensation for accident and injury sustained can however be sustained as the failure to make the said payment have been considered by this court to be wrongful as same is in breach of the provision of Article 500.06 of the condition of service between the Claimant and the Defendant.

The failure to make effort to make the payment of the compensation in accordance with the Company’s policy with Aiico Plc as stipulated in the condition of service is what led the Claimant to ask his lawyers to write Exhibit C9 which is the letter of Demand Notice for Compensation dated 6^th June, 2017. I am also mindful of the fact that the Claimant attempted to present before this court how the Defendant directed him to register a company which would be awarded contracts as a means of compensating him for the injury. The Claimant tendered Exhibit C14, which is a letter of confirmation of account of one EDLS Ltd by a staff of Ecobank. The letter was dated 2^nd May, 2017 and addressed to the Procurement Manager of the Defendant. Claimant also tendered Exhibit C13 which is certificate of incorporation of EDLS Ltd with its registration date as 6^th March, 2017 and exhibit C12 which is the email sent on 31^st March, 2017 by one Faith Igbinobaro to the Claimant.

The relationship in this regard which the Claimant considered to be a fraud is however outside the purview of the condition of service and same cannot be pronounced upon as it is best a gentleman agreement not capable of enforcement. That notwithstanding, this court considers all of the circumstances relating to the failure to pay compensation for the claimant’s injury as expected in the condition of service to be a wrong deserving of remedy in line with the maxim ubi jus ibi remedium. In this wise, The court in EZE & ORS v. GOVERNOR OF ABIA STATE & ORS (2014) LPELR-23276(SC) held that: “It is a general principle of law of great antiquity to the effect that where there is a violation of right there must be a remedy. Put in another way, ubi jus ibi remedium – meaning where there is a right there is a remedy – see Bello v. A-G Oyo State (1986) 5 NWLR (pt. 45) 828; FBN PLC v. Associated Motors Co. Ltd (1998) 10 NWLR (pt. 571) 441; Labode V. Otuba (2001) 7 NWLR (pt. 712) 256, Oyekanmi v. NEPA (2000) 12 SC (pt.1) 70 at 84.” Per ONNOGHEN, J.S.C. (P. 29, paras. E-G)

Consequently, this court considers the Claimant to be entitled to general damages under relief (f) and accordingly grants the said relief to the effect that this court makes:

“an order for the payment of the sum of N2,000,000.00 (two million naira) as general damages for failure of the Defendants to pay the Claimant compensation for the accident and injury sustained in the course of employment with the Defendant in accordance with Article 500.06 of the Defendant’s condition of service”

Relief (g) is for the sum of N10,000,000.00 (Ten Million Naira Only) being the cost of this action.

With regards to cost of action which is at the discretion of the court, the court in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) posited that:

“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather, it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.” Per SANUSI, J.C.A. (P. 73, paras. D-F).

However, where a Claimant woefully fails to prove his claim with some credible evidence, the relief must naturally fail. In this instance, no useful material has been placed before this court in support of this claim.

The Claimant has not tendered any evidence before this court to ascertain the cost he bore in prosecuting this suit which perhaps could influence the discretion of the court in the award of cost.

Consequently, the said relief (g) must fail and same is accordingly refused.

In the final analysis, issue two is resolved partly in favour and partly against the Claimant upon the finding that the Clamant is entitled to general damages and upon the failure of other reliefs sought.

Having resolved the two issues for determination, the case of the Claimant is found to be meritorious at the extent to which reliefs (f) have been granted and fails to the extent to which other reliefs have failed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE