| IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
—————————————————- Suit No: NICN/CA/67/2015 Petitioner: FRIDAY JAPHET TOM And Respondent: FLOUR MILLS NIGERIA PLC ANOR Date Delivered: 2017-03-03 Judge(s): HONOURABLE JUSTICE E. N. AGBAKOBA Judgment Delivered REPRESENTATION ORCHARDSON UMO for the claimant HENRY EDET for the defendant J U D G E M E N T The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 22nd December, 2015, against the defendants for the following reliefs: 1. A declaration that claimant is entitled to a refund by way of special damages to all the expenses incurred by him arising from the gunshot wounds he sustained when he was attacked by robbers in the course of his employment with the defendants amounting to the sum of One Million and Seven Thousand Naira (#1,007,000.00). 2. A declaration that the defendants’ action of forcing the claimant to continue work as a driver immediately after he sustained gunshot injuries in the course of his official duty while still having bullets lodged in his hands and wrist leading to his wrists/fingers becoming curved permanently is callous and reprehensible. 3. A declaration that the claimant is entitled to general damages in the sum of One Hundred Million Naira (#100, 000, 000.00) from the defendants in the circumstances of this case and for extreme pain suffered by him for many years, loss of future earning capacity, permanent disfigurement, abuse and generally for the defendants’ callous behavior and indifference and for claimant’s continued medical care. Claimant’s Case. The Claimant while working as an employee of the defendant’s as a trailer driver was given 500 bags of defendants’ flour to deliver in Markudi, Benue State. On December 8th, 2010, he was robbed by gunmen and was shot severally whereupon he sustained gunshot injuries with dozens of bullets/pellets lodged in his body and was subsequently rushed to a hospital. The Claimant stated that defendants upon receiving information of the incident sent someone in the person of the defendant’s’ Transport Supervisor, one Mr. Emmanuel Ebele, to meet the claimant in the hospital in Benue State. Claimant averred that the defendants abandoned him to his fate after the incident and that all the promises made by the defendants were not fulfilled. The defendants filed their STATEMENT OF DEFENCE on 17th February, 2016 and dated same day. Responding to paragraph 8 of the Statement of Facts, defendant averred that the claimant’s movement on 8th December, 2010 was tracked via the 2nd defendant’s Vehicle Tracking Device and that they had never been informed in any way or manner either overtly or constructively of the purported incident and had never sighted nor had a copy of any Police Report either directly from the claimant or indirectly from any person in his behalf. The defendants averred that they had never visited the claimant in Benue State or anywhere in connection with the alleged incident nor sent an agent or anybody in whatever disguise to visit the claimant in Benue State or anywhere else. And that they only became aware of the alleged incident on 5th October, 2015, when a purported receipt of medical treatment dated 20th December, 2010 from Natra-Del Medical Centre was brought to their attention. At the trial the claimant called two witnesses, the claimant himself testified as CW1, adopted his written statements on oath marked Exhibit C1 and C2 and proceeded to tender six (6) other documents. During cross examination CW1 testified that he was still an employee of the defendant and that he had not received any notification terminating his appointment. and that during the day of the incident, his conductor was present, that his conductor ran into the bush and called over the military that rescued CW1, he went on to state that the police took him to St. Monica’s Catholic Hospital around Vandekiya He further testified that he had been instructed to attend Citi Clinic, the defendant’s clinic, after he had attended his own hospital, for treatment of the injury he had sustained but that he did not know who paid the bills and that he, CW1, did not pay any of the bills from Citi Clinic. CW1 admitted tendering no reports from either St Monica’s or Citi Clinic. He further testified that he was presented with the police report and told to take it to the hospital and his supervisor promised to forward his receipts to the Management. CW also testified that his Manager told him to go to any nearby hospital and he went alone to Natra Del Medical Centre where he underwent surgery and other treatment. CW1 admitted that he did not tender any medical document from Natal Del Medical Centre. And that his people (family and friends) paid the bills. On being asked whether he was aware that the receipt from Natra Del was only presented to the defendants in 2015 five years after the incident, CW1 stated that he had shown the receipts to successive managers. He also stated that he had not tendered any receipt from the pharmacy for drugs he had purchased since the hospital incident neither did he submit them to the defendants as they had refused to pay his bills from Uyo. The claimants 2nd witness was Ndifrieke Umeh Udoh, a trailer driver and former employee of the defendant, who testified as CW2 adopted his written statement on oath dated 6th April 2016 which was marked Exhibit C10. Under cross examination CW2 testified that he worked for the defendants until January 2016 and that he had worked with the claimant before, and following the incident he had seen the CW1 hospitalized, bandaged and unconscious, he further testified that as far as he knew the CW1 was attacked by armed robbers when he was in Makurdi. The defendants called one witness,, their Customer Service Manager CSM, Nwagbara Nnaemeka who testified as DW, adopted his statement on oath of 17th February 2016 which was marked Exhibit D1 and tendered five (5) other Exhibits. DW under cross examination testified that the claimant drove their defendants truck back from Makurdi and that the entire gunshot wound incident was a fabrication, the company was first presented with the claimants bill Exhibit C7 on the 8th October 2015 five (5) years after the incident and that they had initially forwarded the bill to their insurance company for refund but when they checked their Exhibit D8-D8 (27) the defendants concluded the claim was fabricated. Exhibits D7 –D7 (1) and Exhibit D8- D(8(2) pertaining to CW2’s employment with the defendant were also tendered through this witness. At the close of trial parties were directed to file their final written addresses in court in line with the rules of this Court. The DEFENDANT’S FINAL WRITTEN ADDRESS was dated and filed on 9th November, 2016. Wherein the defendants raised the following three (3) issues; 1. Whether there is credible evidence before this Honorable court to establish the alleged armed robbery attack and injuries s claimed by the claimant? 2. Whether there is credible evidence before this Honourable Court to show that the defendants were informed of the alleged incident prior to 5th October, 2015? 3. Whether there is evidence to grant the reliefs of the claimant as contained in his Complaint? Learned Counsel for the Defendant Henry Edet Esq. submitted that what is admitted need no further proof. BUNGE v. GOV. OF RIVERS STATE (2006) ALL FWLR (PT. 325) 1 S.C. 3. That the claimant in support of his claim tendered two purported x-ray documents admitted under protest as C8C8(2) and that this feeble attempt to sneak this document as evidence is condemnable and warrants the document to be regarded as no more than “documentary hearsay”. NBC PLC v. UBANI (2009) 3 NWLR (PT. 1129) 512 CA. The claimant failed to tender any detailed medical report before this Honorable Court to assist this court by shedding more light on the nature of the purported injuries, the nature of treatment carried out and what further treatment is needed if any at all. UKEJE v, UKEJE (2014) 11 NWLR (PT. 1418) 390. To the defendant Counsel Exhibit C6 should be treated as a public document as it falls within the definition encapsulated in S. 102 104 of the Evidence Act, 2011 (as amended). INDEPENDENT ELECTORAL COMMISSION v. PDP (2013) 2 PELR 2014 11 CA. Contending that in the absence of a Police report before the Court, there is no cogent piece of evidence to establish the events as narrated in the claimant’s pleadings. BUNGE v. GOVERNOR OF RIVER STATE (Supra). It is defendant’s counsel’s submission that the courts’ role is adjudicatory and not investigative and that the courts in evaluating evidence can only consider that which is properly placed before it. EDOKPOLO & CO. LTD. v. OHENHEN (1994) 7 NWLR (PT. 358) S.C. @ Pp. 5/9. Defence Counsel submitted that their response to issue 2 is in the negative and that the standard of proof in civil cases, pursuant to Sec.. 134 of the Evidence Act, 2011 (as amended) is on a balance of probabilities. OKOYE v. NWANKWO (2014) 15 NWLR (PT. 1429) 93 S.C. @ Pp. 99.He submitted that the claimant has not led any credible evidence to show that this attack happened or that if it did, it was in the course and out of his employment, he urged the Court to hold that claimant’s relief 1 fails. Defendant Counsel relying on HON. BARRISTER VITALIS C. OKAFOR v. INEC & 3 ORS. (2010) 3 NWLR (PT. 1180) 1 @ 6-7, urged against the grant of relief 2. It is counsel’s submission that in tandem with the National Industrial Court Act, 2007, the discretion as to the amount which may be awarded is left with the court. OKOROCHA Vs. PDP (2014) 7 NWLR (PT. 1406) 213 @ 229, And that the claimant’s failure to lend credible evidence as to the existence and/or nature of the injuries claimed has robbed this Court of a sound footing to make any pronouncement on general damages were it so inclined. KOPEK CONSTRUCTION LIMITED v. EKISOLA (2003) FWLR (PT. 139). Defence Counsel noted that Sec. 119 of the Evidence Act, 2011 (as amended) is clear on the need for an illiterate jurat and that this is absent on the witness Statement on Oath of the claimant. It follows therefore, that the document ought rightly to be discountenanced as claimant’s counsel failed to regularize his processes subsequent to that pronouncement. KUBAU v. RILWANU (2014) 4 NWLR (PT. 1397) 289. On the second issue relating to admissibility of D3-D3(27), counsel relying on KUBOR v. DICKSON (2013) 4 NWLR (PT. 1345), submitted that Sec. 84(2) read with Sec. 84(4) of the Evidence Act, 2011 (as amended) requires proper foundation to be laid in relation to the document and that this can be done via pleadings as to establish the reliability and integrity of the computer which generated the document. The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 16th November, 2016. The claimants formulated the following issues: 1. Whether the claimant’s claim to have been robbed and shot on his way to Makurdi, Benue State leading to the lodgement of bullets/pellets in his body and his inability to continue the journey is credible or has been so heavily discredited under Cross Examination that this Court cannot rely on it. 2. Whether the defendants’ claim that they only knew of the robbery/shooting incident on 5th October, 2015 is credible and so, exculpates them from liability towards the claimant. 3. Whether the claimant is not entitled to his claim for special and general damages. ON ISSUE 1 Whether the claimant’s claim to have been robbed and shot on his way to Makurdi, Benue State leading to the lodgement of bullets/pellets in his body and his inability to continue the journey is credible or has been so heavily discredited under Cross Examination that this Court cannot rely on it. Learned Counsel for the Claimant Orchardson Umor Esq. relying on the case of LAGOS STATE v. ADEYIGA (2012) 2 MJSC (PT. 1) Pp. 126 -127 & 133, submitted that “Our law is that where the documentary evidence supports oral evidence, oral evidence becomes more credible. This is so because the documents serve as a hanger from which to assess oral testimony. “He submitted that claimant’s evidence cannot in the circumstances be said to be patently or obviously false, rather that it is credible, urging the Court to believe it and that to hold otherwise, will be unjust. MODUPE v. STATE (1988) 4 NWLR (PT. 87) 130 @ 137. Counsel pointed out that the evidence of CW2 was not denied by the pleadings of the defendants and that the defendants never challenged/denied that they sent CW2 to Benue State. Thus, that the Court is bound to accept it as it was evidence to establish a relevant fact. LADOJA v. AJIMOBI & ORS. (2016) 2 MJSC (PT. 111) 1 @ 38 D-E; INCA NIG. LTD. v. ADEGBOYE (1985) NWLR (PT. 8) 445. He further submitted that the law is that unchallenged evidence on a vital issue places a duty on the court to accept it. N.B.T.C. v. NURUMAL LTD. (1986) 4 NWLR (PT. 33) 126. It is counsel’s contention that CW2 was never cross examined at all on the critical evidence as to his trip, who he went with and whether he is the one who drove the trailer/goods to Markudi and back to Calabar as claimed by him. That the effect of all these is that CW2’s evidence is reliable and acceptable. YISI NIG. LTD. v. TRADE BANK PLC (2013) 2-3 MJSC (PT. IV) 472 @ 487; NASSARAWA STATE v. A-G PLATEAU STATE (2012) VOL. 3 MJSC (PT. 111) 118; OFFOR v. STATE (2012) 12 MJSC (PT. 11) 32 @ 63 F; KAYILI v. YIBUK & ORS. (2015) 1-2 MJSC 118 @ 150 A-E. Claimant’ Counsel argued that the defendants’ submission at paragraph 4.7 -4.8 of their Final Written Address, suggested that Exhibit C6 should be treated as a public document, was purposefully meant to deny the claimant the benefit of relying on its contents. He argued that the said document is not being a document in the custody of any official body or public officer, neither is it a document forming records of or stating any official act, that the claimant who is to keep and use this document is not a public officer. UKANA v. STATE (1995) 8 NWLR (PT. 416) 705. Claimant Counsel submitted that by Sec. 89 of the Evidence Act, what is required for secondary evidence of a document of which notice to produce has been issued to be tendered is proof that the original appears to be in the possession of the adversary notwithstanding any denial. SHOBANKE v. SARAKI (2006) ALL FWLR (PT. 292) 131. He submitted that Civil cases are decided on the balance of probability and not otherwise. PURIFICATION TECH NIG. LTD. v. JUBRIL (2012) 6-7 MJSC (PT. 1) 13 @ 79. ON ISSUE 2 Whether the defendants’ claim that they only knew of the robbery/shooting incident on 5th October, 2015 is credible and is so, exculpates them from liability towards the claimant. Counsel to the claimant submitted that the position of the law is that a party has to be consistent in the case or defence he/she presents before the court. Per Talabi, JSC in A.P.C. v. UMEH (2011) 2-3 MJSC (PT. 1) 127 -129. He submitted that the defendants having presented two contradictory defences before this Court, which of the two versions will the Court accept? Furthermore, that a party is either credible or not credible, as a party cannot be believed in instalments. KALIO v. WOLUCHEM (1985) 1 NWLR 9PT. 4) 610; ELEWUJU v. ONISTSAODU (2003) 3 NWLR (PT. 647) 112. ON ISSUE 3 Whether the claimant is not entitled to his claim for special and general damages. Learned Claimant’s Counsel submitted that claimant is entitled to such damages that will take care of his future as he is going to continue to bear the trauma, continue treatment and cope with loss of earning capacity due to the permanent loss of use of his wrist/fingers. He argued that these are the things that will guide the Court’s assessments of the general damages. DR. MAJA v. OKE (2013) 2-3 MJSC (PT. 1) 31 @ 53 E-F. Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issues formulated by either side are somewhat similar but the issues formulated by the defendants properly situate the questions for determination in this suit to my mind. The defendant’s issues shall be adopted as the issues for determination in this suit but while adopting these issue the court shall merge issue 1 and three and shall treat them together as issue 1. and the remaining issue 2 being somewhat rhetorical I shall address thereafter. 1. Whether there is credible evidence before this Honorable court to establish the alleged armed robbery attack and injuries s claimed by the claimant AND whether there is evidence to grant the reliefs of the claimant as contained in his Complaint? 2. Whether there is credible evidence before this Honourable to show that the defendants were informed of the alleged incident prior to 5th October, 2015? Before dealing with the merits of the case I shall review the various exceptions (objections and submissions) raised by either party as to the reliability of certain documents. The defendant took stock of the claimants Exhibits C1 and C2, the claimants written statements on oath on the basis that the claimant had testified that he could not read, yet the exhibit did not contain an illiterate jurat, Exhibit C6, with the argument that it was a public document requiring certification, Exhibit C7, that it was presented five (5) years after it was issued for the very first time, Exhibit C8-C8(2) that the documents were documentary hearsay and that the claimant failed to tender a medical report. The claimant on his part asked the court to discountenance Exhibit D3(1-27) on the grounds that this document does not conform with the provisions of Section 84 of the Evidence Act as relates to computer generated evidence. I shall resolve these exhibits while considering issue 1. 1. Whether there is credible evidence before this Honorable court to establish the alleged armed robbery attack and injuries s claimed by the claimant AND whether there is evidence to grant the reliefs of the claimant as contained in his Complaint? The claimant in presenting his suit tendered apart from his witness statements on oath, in support of the robbery attack the claimant tendered the police report Exhibit C6 his bills Exhibit C7 and C8(2). The claimant in open court stated that he could not read, this testimony raises the issue as to whether he or how he made Exhibits C1 and C2 as neither of these documents bear an illiterate jurat. The defendants have argued that the police report is a public document requiring certification and as Exhibit C6 is bereft of any certification the court should not rely on it. Now a similar argument was canvassed in AGONSI Vs. OKWU (2016) LPELR-40614(CA) As to whether a particular document was a public or private document. The status of the document notwithstanding the Court of Appeal held “the contentious Exhibit A, it would be recalled, was pleaded at paragraph 8 of the Respondent’s Statement of Claim filed at the Lower Court. This therefore puts it beyond contestation that the said document in Exhibit A is relevant to this matter. See the Observation of this Court in the case of DONLI vs. ABDULAHI & ORS where this Court per AKOMOLAFE-WILSON, JCA, had this to say; “Relevance is the hallmark of admissibility of documents. Once it is relevant and pleaded and ordinarily admissible under the Evidence Act, then such a document ought to be admitted. The issue of photocopy or custody would be immaterial. It will only go to the probative value to be attached to such documents. See AYENI vs. DADA (1978) NSCC 147 AT 159; DR. TORTI vs. UKPABI & ORS (1984) 1 SCNLR 214 AT 227.― Bearing in mind that the hallmark of a public document is its openness and that anyone can go and demand that a certified copy be given to him on paying a prescribed fee. GOV. EKITI STATE V OJO [2006] 17 NWLR PG 129, PARAS B and that, as the case went on to state, “a Public Document is one made by a Public Officer for the purpose of the public making use of it and being able to refer to it especially where there is a judicial or quasi-judicial duty to inquire into it. See also the cases of NZEKWU vs. NZEKWU (1989) 2 NWLR (PT. 104) 373 AT 404; C.C.B. (NIG.) LTD vs. ODOGWU (1990) 3 NWLR (PT. 140) 646. As for purposes of the Evidence Act, ‘public documents’ have been defined by Section 109 of the Evidence Act to include documents forming the Official Acts or records of the Official Acts as listed in the Act and public records kept in Nigeria of private records.” Per OHO, J.C.A. (Pp. 27-28, Paras. C-A) referring to the classic opinion of Lord Blackburn in STURIA vs. PRECIA (1880) A.C. 623, I am unable to consider Exhibit C5 as a public document although made by a public officer it is neither part of public record nor was it intended for use by the public, I find that Exhibit C6 is at best a letter of reference or introduction to enable the claimant obtain treatment. Exhibit C6 I agree is a photocopy, as stated above that what remains only relates to probative value. The claimant put the defendants on notice to produce the original and the defendants denied ever receiving the said original. As this exhibit was pleaded in paragraph 9 of the claimants Statement of Fact I find it is relevant as per AGONSI Vs. OKWU Supra. As regards Exhibit C1 and C2 made without a jurat, the position of the law is as was stated in the cases of SUNDAY VS. FRN (2013) LPELR-20192(CA) where the court held that “the purpose of the jurat ………is to ensure that if there is dispute on the veracity or possible intention contained in the document the preparer of the document could be traced so as to enable him give evidence or throw light on the real intention of the Illiterate person who engages the writer whose name and address must be written on the document. The failure to put jurat on the document only makes it unenforceable as between the illiterate, maker and the writer or preparer of the document if the document fails to comply with Section 3 aforesaid. The document is admissible as between the writer and a third party in any action or transaction between the illiterate and the third party.” Per IGE J.C.A. (Pp. 38-39, paras. F-B). and also in ANYABUNSI VS.. UGWUNZE (1995) LPELR-503(SC) the Apex Court held in respect to the effect of the absence of the illiterate jurat; that “it was also submitted that the document was inadmissible in evidence as it was allegedly executed by illiterates but did not contain a jurat. The short answer there is that the Illiterates Protection Law, ……as its title implies, is a law to protect and not to penalize illiterates and the fact that the provisions of that law were not carried out could not mean that the document was for that reason alone void, of no effect and inadmissible. That law made no such provision and I find myself unable to accept the appellant’s submission on the issue as well founded. See IRO EZERA V. INYIMA NDUKWE (1961) 1 ALL NLR 564.” Per IGUH, JSC. (Pp. 21-22, paras. E-A) What all that means is that the absence off the jurat in Exhibit C1 and Exhibit C2 does not have the effect of rendering the said exhibits inadmissible. The claimant tendered bills Exhibit C7 and C 8(2), these exhibits and their circumstances I find these documents were properly pleaded and hence relevant AGONSI Vs. OKWU Supra. As regards the defendant’s submission on the failure to tender a Medical Report, I find that whereas a medical report would have been of assistance to enable the court determine the prognosis of the claimants injury, future treatment and incidental with regard to general damages. The absence of the medical report does not in itself invalidate, or have any bearing of the bills or expenses made by the claimant i.e the receipts of the claimant; Especially considering the uncontroverted evidence of CW2, who testified that he visited the claimant in hospital and his state of injury and even drove back the truck assigned to the claimant. I found the evidence of CW2, clear and cogent, he answered all the questions put to him distinctly and in an unflustered manner and his disposition and demeanor led to this court’s conclusion that he was a witness of truth. Also the action or the admitted actions of defendants when they were officially presented with the receipts five years down the line, of which there is no evidence was presented in this court to enable the court determine this veracity one way or the other also lends credence to the situation. The defendants averred that they referred the receipts to their insurance company who they stated responded that the time for filing had lapsed yet neither the Insurance Company response nor the rule for filing claim were not brought before the court to substantiate their averment and in court pleadings without proof go to no issue BANKOJO &ORS VS. OGUNLAJA & ANOR (2013) LPELR-20373(CA). Such pleadings are viewed as worthless CAMEROON AIRLINES Vs. OTUTUIZU (2011) LPELR-827(SC) and deemed abandoned AMAH Vs. AMAH (2016) LPELR-41087(CA). With regard to the claimants objection to Exhibit D3- D3(27) on the basis of non-conformity with the provisions of S84 of the Evidence Act 2011, by this, it must be noted that the defendants are not contesting the authenticity of Exhibit D3- D3(27) but to the mode of tendering. Now similar arguments have been raised in LUCKY IHANZA & ANOR V. GLOBAL FLEET OIL & GAS LIMITED UNREPORTED SUIT NO. NIC/LA/217/2011, the judgment of which was delivered on March 27, 2013, MR. IROKO A. LATEEF V. GLOBAL FLEET OIL & GAS LTD UNREPORTED SUIT NO. NIC/LA/222/2011, the judgment of which was delivered on May 13, 2013 and MR. OLUBAYO ADEYEMI V. GLOBAL FLEET LTD [2013] 35 NLLR (PT. 105) 384 SUIT NO. NICN/LA/32/2012ESTHER OGBODU VS. GLOBAL FLEET OIL & GAS LTD & ANOR delivered 5th December 2014; regarding the admissibility of computer generated evidence and this Court rejected them. This court has held severally that the informality enjoined on this Court by section 12 of the NIC Act 2006 and as explained in KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED). That this Court is designed and structured to advance informality and flexibility when adjudicating; citing the instructive and incisive holding of the Supreme Court of India in NTF MILLS LTD V. THE 2ND PUNJAB TRIBUNAL, AIR 1957 SC 329, explained that the task of this Court is to adjudicate on the disputes between employers and their workmen, etc and in the course of such adjudication determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing the Court is undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that the Court’s jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace. This process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience. The interest of justice does not warrant the kind of technicality of the section 84 and Section 90 of the Evidence Act which the claimants are seeking to introduce here. Accordingly, it is my finding and holding that in the interest of justice, the relevant provisions of the Evidence Act cited by the defendants shall be departed from for the purposes of this judgment. The argument of the claimants in that regard accordingly fails and is hereby discountenanced. Exhibit D3)27) and C27 shall accordingly remain admitted; the only issue left is to determine evidential value as far as this suit is concerned. I find that the evidence of the claimant supports the entries in D3(27) as the claimant case is that CW2 drove back the truck and the said exhibit only establishes that the truck was driven back. Particularly as the defendants failed to call the said Emmanuel Ebele to deny instructing the Cw2 so to do and DW admitted knowing the said Emmanuel Ebele. Section 169d raises a presumption against evidence withheld which I resolve in favour of the claimant. This issue at hand is 1. Whether there is credible evidence before this Honorable court to establish the alleged armed robbery attack and injuries s claimed by the claimant AND whether there is evidence to grant the reliefs of the claimant as contained in his Complaint. In evaluating the oral evidence before the court I had mentioned finding CW2 credible, the claimant was factual and assertive with his case sure of his facts and reasonably believable also the defendants witness was also well composed but his answers to questions from the claimant were wooly and not readily forthcoming. All in all I believed the claimants and his witness much more than DW. I have no hesitation in finding that the claimant has established that he sustained an injury on the 8th December 2010 as pleaded and his reliefs for consideration are now the next to be determined As the claimant counsel had on 5th December 2016 withdrawn his relief 2; leaving reliefs 1 and 3, Relief 1.was for a declaration that claimant is entitled to a refund by way of special damages to all the expenses incurred by him arising from the gunshot wounds he sustained when he was attacked by robbers in the course of his employment with the defendants amounting to the sum of One Million and Seven Thousand Naira (#1,007,000.00). The law requires, with respect to special damages; That to be entitled to an award of special damages, the claimant must prove his entitlement to it by pleading same in his pleadings and particularizing the special damages as required by law OVERLAND AIRWAYS LIMITED v. AFOLAYAN (2015) 52 NLLR (PT. 174) 214 NIC @ 224. See also MARINE MANAGEMENT ASSOCIATE INC. & BADMUS v. KAMINE MARINE CONSULTANCY LTD. The claimant in paragraph 23 Particulars of Special Damage averred as follows; The cost of surgeries, treatment consumables as at the 20th December 2010 Paid to Del Natra hospital …………………………………………………… N685, 000.00 This I find is supported by Exhibit C7, Three X rays a the cost of ……………………………………………………N4, 900.00 There is nothing, no receipt before the court in support of that and hence this head of claim fails. Two Hundred and Sixty five thousand One Hundred Naira spent to buy drug Further medical consultation etc………………………………………….N265, 100.00 The only receipts from Uyo before the court are Exhibit C8 (4) of 21st December 2010 an Exhibit C8(5) of 24th December 2010 for One Thousand Three hundred Naira and Two Thousand Six hundred Naira respectively. This head of claim succeeds in part. Items (d.) and (e.) for cash and Nokia phone robbed have not been substantiated before this court and therefore cannot be granted. Hence with regard to relief 2 the claimant is asking for a declaration that the claimant is entitled to general damages in the sum of One Hundred Million Naira (#100, 000, 000.00) from the defendants in the circumstances of this case and for extreme pain suffered by him for many years, loss of future earning capacity, permanent disfigurement, abuse and generally for the defendants’ callous behavior and indifference and for claimant’s continued medical care. The position of the law in respect of Declaratory judgments has been stated in the case of S.P.D.C.N. LTD. v. AJUWA (2015) 14 NWLR (PT. 1480) C.A. 403 @ 431 as follows; “A party seeking a declaratory relief must place before the court credible and sufficient evidence to entitle him to the declaratory relief. A court cannot grant a declaratory relief without credible sufficient evidence. Such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleading, the relief being equitable in nature. KWAJAFFA v. B.O.N. LTD (2004) 13 NWLR (PT. 889) 146. In the instant case I find that there is nothing before the court to support the claim of One Hundred Million Naira (#100, 000, 000.00) general damages, the claimant has not told the court how he arrived at this sum neither did he present any evidence of extreme pain suffered by him nor loss of future earning capacity, permanent disfigurement or any evidence of any abuse on the part off the defendants’ or of any callous behavior and indifference to claimant’s continued medical care. This relief therefore fails. Issue 2 Whether there is credible evidence before this Honorable Court to show that the defendants were informed of the alleged incident prior to 5th October, 2015? This issue formulated by the parties I find most superfluous especially considering the claimants withdrew their second relief. The defendant as I mentioned earlier have not put before any rule or term of condition stipulating the time constraints in their establishment for presenting medical bills. Neither was it the defendants defence that the claimant had exceeded the period for personal injury claims in their company. The claimant’s pleadings that he had informed successive Managers of his injury and bill not being supported by any evidence goes to no issue whatsoever. See BANKOJO &ORS VS. OGUNLAJA & ANOR (2013) LPELR-20373(CA). CAMEROON AIRLINES Vs. OTUTUIZU (2011) LPELR-827(SC) and AMAH Vs. AMAH (2016) LPELR-41087(CA). However having found that the defendants did indeed send CW2 to recover the defendants truck on the order of their staff Emmanuel Ebele acknowledged by DW, it translated to the defendants having knowledge of the accident prior to 5th October 2010. For avoidance of doubt the claimant’s case succeeds but only thus far. The Judgement of this court is as follows; The defendants shall pay to the claimant the sum of N688, 900.00 (Six Hundred and Eight-Eight Thousand Nine Hundred Naira) being the total of N685, 000.00 (Six Hundred and Eight Five Thousand Naira) the cost of surgeries, treatment consumables etc. from Del Natra hospital 20th December 2010 and N1, 300.00 (One Thousand Three hundred Naira) plus N2, 600.00 (Two Thousand Six hundred Naira ) duly receipted from Ultimate Medical Diagnostics 21st and 24th December 2010. Cost of this suit is placed at N200, 000.00 All sum to be paid within 30 days of this judgment. Thereafter 10% interest shall be attached. This is the courts judgement and it is hereby entered. _____________________ Hon. Justice E. N. Agbakoba Judge |
