LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Monday Osiregbe Igenoza -VS- Unknown Defendant & ORS

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

 

 

DATED 27TH MARCH,  2019                                             SUIT NO NICN/ABJ/294/2014

 

BETWEEN

MONDAY OSIREGBE IGENOZA                                   CLAIMANT

 

AND

  1. UNKNOWN DEFENDANT
  2. ROCHE CONSTRUCTION NIG. LTD                       DEFENDANTS

 

REPRESENTATION

  1. I. AFALIOKHAI for the Claimant

No Representation for the 1st Defendant

PHILLIP NYITNI with FEMI OKUNBO for the 2nd Defendant

 

JUDGEMENT

  1.             The claimant filed this Complaint on 21st October, 2014 with the accompanying frontloaded documents, claiming against the defendants as follows:

 

  1. The sum of N1 00,000,000.00 (One Hundred Million Naira) being compensation for permanent incapacitation/deformity of the claimant’s right knee as a result             of the injury negligently inflicted on him by the 2nd Defendant in the discharge of his duties in the course of his employment with the Defendant at Owerri Imo             State.

 

  1. AN ORDER directing the 2nd Defendant to pay the claimant his salaries    calculated at N25,000.00 (Twenty Five Thousand Naira) only per month from       the last month the claimant was last paid until the proper determination of          the claimant employment in accordance with the law

 

Claimant’s Case

  1.             The Claimant’s case is that he was employed by the 2nd Defendant in the year 2012 as a driver and was assigned to drive a concrete mixer. That part of his duties was to drive the mixer with concrete to construction site and after work, wash the mixer’s bucket manually which was a cruel method prescribed by the company without regard to acceptable industrial safety, measure and guidelines.

 

  1.             Claimant averred that while he was washing the mixer as prescribed on the 14th day of July, 2012, the 1st Defendant, an employee of the 2nd Defendant, whose name has be withheld by the 2nd Defendant, kick started the mixer and trapped the Claimant right leg and grind it and as a result, the Claimant’s leg was amputated.  The Claimant stated that his appointment was finally terminated without the requisite notices and payments. Hence, the Claimant therefore claimed the sum of N100, 000,000.00 (one hundred Million Naira) only as compensation for permanent deformity suffered in the cause of his employment with the 2nd Defendant plus his salaries.

 

The 2ND DEFENDANT’S AMENDED STATEMENT OF DEFENCE filed on 21st February, 2018.

 

  1.             The 2nd Defendant denying paragraph 1 of the Statement of facts averred that the Claimant was a trailer Motor Boy who was not in the employment of the 2nd Defendant at the time of the accident but was working with a trailer driver named Lucky who was in the employ of the 2nd Defendant and was later disengaged by the 2nd Defendant. That the Claimant was never employed as a concrete mixer truck driver but after his recovery from his self-inflicted accident, he was first trained on compassionate grounds to keep records at the weigh bridge and later trained again and converted to a Trainee excavator operator.

 

  1.             Responding to paragraph 4 of the statement of facts, the 2nd Defendant averred that even after his accident, it employed and trained the Claimant on the weighbridge but he was fond of tampering with information and even stole a memory card from the handset of another staff. That he was thereafter employed as a Trainee to be trained as an excavator operator and was retained for more than one year before his employment was terminated on grounds of gross misconduct.

 

  1.             The 2nd Defendant denying paragraph 17 of the claim stated that the Claimant was trained as an excavator operator wherein he uses only his hands to operate the equipment without any need for him to use any of his legs and was never given difficult tasks that required the use of his two legs. And that the defendant’s salary deductions were justified because of his unruly attitude to work which is a practice applied to workers who neglect or refused to carry out tasks assigned to them as was always the case with the Claimant and that the Claimant refused, neglected and never replied queries given to him to explain himself. The 2nd Defendant stated that it never breached any duty of care owed the Claimant because it provided all the necessary equipment for the safe cleaning of the concrete mixer and provided a laid down procedure for cleaning by the assigned drivers which the Claimant was not.

 

  1.             In further reply to paragraph 24 of the claim, the 2nd Defendant averred that it was not in any way negligent and did not breach any duty of care owed the Claimant by the following actions:

 

  1. The Claimant at the time of the accident was not employed by it and that he was a trailer motor boy who was never allowed to drive or wash the concrete mixer.

 

  1. The Batching Plant Manager, Mr. Usman Kerim and the Logistics Officer, Nelly Festus, on the day of the accident warned the Claimant to stay away from the Concrete mixer which warning he disregarded.

 

  1. That the Claimant on his own accord caused the accident that led to the amputation of his leg by climbing the concrete mixer when the drum was rotating.

 

  1. That the 2nd Defendant was not in any way negligent and did not breach any duty of care owed the Claimant because it never allowed him to handle or wash the concrete mixer.

 

  1. All concrete truck drivers and operators received training on safety operations and the laid down procedure for handling and cleaning the machines.

 

  1. It provided in particular for the concrete mixer trucks a safe area within its yard and a high pressure machine with long hoses for the washing and cleaning.

 

  1. That the Defendant was not supposed to climb the mixer drum when the mixer drum was rotating because there is a ladder provided by the side of the drum. Photographs of the concrete mixer is hereby pleaded to be relied upon at the trial.

 

  1. That the 1st Defendant is unknown to the 2nd Defendant, does not exist and contributed nothing to the accident.

 

  1. That it was entirely the negligence of the Claimant and his disregard to warnings to keep away from the equipment yard that led to the accident.

 

  1.             The 2nd Defendant maintained that the Claimant is not entitled to any compensation or salaries under the Workmen’s Compensation Act because of the negligent act of the Claimant who solely left his job as a trailer motor boy and without permission to go and operate and try to wash a concrete mixer which machine he had no knowledge of.
  2.             At the trial, the claimant testified on his own behalf as CW, adopted his written statements on oath of 21st October 2014 which was marked C1, a proceeded the tender 9 other documents which were marked Exhibit C2- C10. The defendant objected to the tendering of 6 of the 9 Exhibits tendered, i.e. (Exhibits C2,C3, C,4, C6, C7, and C10) and was cross examined thereafter; while the defendants called two witnesses, Usman Kareem. The Production Manager of the 2nd defendant, who testified as D1, adopted his written statement on oath of 21st February 2018 which was marked Exhibit D1, he tendered 24 of the documents which were marked Exhibit D2- Exhibit D25 (Exhibit D25) was tendered under cross examination. )the Claimant objected to one of these defence exhibits (Exhibit D23). DW1 was duly cross-examined by the Claimant Counsel. The defendants 2nd witness was one Grace Chime, who testified as D2, adopted her written Statement on oath of 21st February 2018 which was marked D27, proceeded to tender to other a bundle of documents marked Exhibits D26- D26(2). She was duly cross examined. Thereafter, parties filed their respective written addresses. The defendant’s final written address is dated and filed on 26th June, 2018, while the claimant’s is dated and filed on 30th November, 2018The Defendant’s  did not file a reply on points of law.

 

The 2ND DEFENDANTS FINAL WRITTEN ADDRESS filed on 26th June, 2018.

 

ISSUES

  1. Whether the claimant who was not an employee of the 2nd Defendant at the   time of his accident can make any Claim for damages for personal injury         against the 2nd Defendant under the 5/4Factories Act and the Workmen             Compensation Act.

 

  1. Whether an unknown defendant is a juristic person that can be sued and         whether in the face of evidence before the court, the 2nd defendant can be held liable in an action predicated upon the acts of the 2nd defendant who is     unknown

 

iii.  Whether the 2nd Defendant at the time of the Claimant’s accident owed the    Claimant any duty of care to warrant a claim for damages based on           negligence.

 

  1. Whether the Claimant’s employment as a Trainee Excavator Operator after   his accident was rightly terminated by the 2nd Defendant.

 

ON ISSUE 1

Whether the claimant who was not an employee of the 2nd Defendant at the time of his accident can make any Claim for damages for personal injury against the 2nd Defendant under the Factories Act and the Workmen Compensation Act.

 

  1.             The 2nd Defendant made heavy weather of their contention that the Claimant was not their employee and could not claim under the repealed workmen compensation act not the submitted that it is trite law that parties are bound by their pleadings and that the courts also are bound by the pleadings of the parties before them. AGBOOLA V UBA (2011)45 NSCQR 335; OHOCHUKWU V AG. RIVERS (2012)49 NSCQR 864; ADEKEYE V ADESINA (2010) 44 NSCQR 457. He argued that the claimant’s claim under the is an exercise in futility because it amounts to making a claim on a legislation that has been repealed. Therefore, that the claimant is trying to put something on nothing and expecting it to stand. UAC V. MCFOY.

 

  1.             To the 2nd Defendant’s Counsel, assuming but not conceding that, the claim is on the new. Section 2 of the Employee Compensation Act and contended further that the Claimant’s claim for compensation for personal injury and wrongful termination are seriously misconceived, untenable and cannot hold any water. While assuming but not conceding that the Claimant’s employment was wrongfully terminated and he suffered personal injury, asked the question if these the types of claims to be made? Responding in the negative, he cited the case of GARUBA V. KWARA INVESTMENT CO. LTD. (2005)4 FWLR 375 @ 378 para 2.

 

  1.             It is counsel’s submission that parties are bound by their pleadings and any evidence based on what is not pleaded goes to no issue. ADEMESO VS. OKORO (2005) FWLR 2259 @ 2261; GARUBA V. KWARA INVESTMENT CO. LTD. (2005)4 FWLR 375 @ 379 para 5. He urged the court not to rely on any evidence which is at variance with the Claimant’s pleadings especially Exhibits D18 & D18 to reach any decision in this case owing to the very fact that there is no averment in his pleading relating to the said Exhibits. CIVIL DESIGN AND CONSTRUCTION CO. NIG. LTD. VS. SCOA LTD. (2008) 1FWLR 303 @ 324 para. 6. The 2nd Defendant’s Counsel contended that even though the Honourable Court admitted Exhibits D18 & 19 in spite of the vehement objections of the 2nd Defendant to their admissibility, this Honourable Court cannot rely on same, the said document being an otherwise inadmissible document was wrongly admitted. I.B.W.A. v IMANO (2001) 17 W.R.N. 1 at 19 — 20; SAIDU v STATE (1982) 13 N.S.C.C. 70 at 82, per Obaseki, JSC; MALLAM YAHAYA v MOGOGA (1947) 12 W.A.C.A. 132 at 133; ALASE v OLORI ILU (1965) N.M.L.R. 66 at 77; OGUNSINA & ORS v MATANMI (2001) 9 NWLR (Pt. 718)286 at 294-295. He urged this Honourable Court to discountenance Exhibit D18 & 19, same not being pleaded by the Claimant and being so inadmissible, this Honourable Court is mandated by law not to accord any relevance or probative value to Exhibit D18 & d19. AJAVI v FISHER (1956) S.C.N.L.R. 279; ESSO WEST AFRICA INCORPORATED v ALLI (1968) NMLR; AUDU & ANOR v AHMED (1990) 5 NWLR (Pt. 150) 287 at 298-299; HYPPOLITE v EGHAREVBA (1998) 11 NWLR (Pt. 575) 598 at 619.

 

ON ISSUE 2

Whether an unknown defendant is a juristic person that can be sued and whether in the face of evidence before the court, the 2nd defendant can be held liable in an action predicated upon the acts of the 2nd defendant who is unknown

 

  1.             Learned Counsel the 2nd Defendant argued that in this case, while the 2nd Defendant is a juristic person, the 1st Defendant throughout the trial is aptly sued as “UNKNOWN DEFENDANT” and that under cross examination, the Claimant who testified as CW1 informed the court that he did not know the 1st Defendant. That the Defence witness DW1 also said he did not know the 1st Defendant. Therefore, it follows that the 1st Defendant is not a person known to law and lacks the capacity to be sued in this action. AGBONMAGBE V. GENERAL MANAGER, G.B. OLIVANT LTD (1961) 1 ALL NLR 116; AB MANU & CO. (NIG. LTD) V. COSTAIN (WEST AFRICA) LTD (1994) 8 NWLR [PT. 360] 112. Furthermore, Counsel to the 2nd Defendant argued that, if a party is a natural person, the real name by which the party is known should be clearly set out in the processes. EMECHETTA V. OGUERI (1996) 5 NWLR [PT. 447] 227

 

ON ISSUE 3

Whether the 2nd Defendant at the time of the Claimant’s accident owed the Claimant any duty of care to warrant a claim for damages based on negligence.

 

  1.             Counsel to the 2nd Defendant’s submitted that the claimant did not prove to the court that he was an employee of the 2nd defendant as a concrete mixer Driver/operator at the time of the accident that led to the amputation of his right Leg. And that in the absence of this proof, it means he was never an employee of the 2nd Defendant and against this backdrop, it means the 2nd Defendant owed the Claimant no duty of care at the time of the accident. SUSAINAH (TRAWLING VESSEL) & 2 OTHERS VS. SEGUN ABOGUN (2006) 12 CLRN 69 @ 83 para 30-35

 

ON ISSUE 4

Whether the Claimant’s employment as a Trainee Excavator Operator after his accident was rightly terminated by the 2nd Defendant.

 

  1.             It is the 2nd Defendant’s Counsel’s submission that the Claimant’s employment as Trainee Excavator Operator was terminated in accordance with the provisions of the Employee Hand Book. DORNIER AVIATION NIG AIEP LTD. V. OLUWADARE (2007)11 CLRN 69 @70; OBO V. COMMISSIONER FOR EDUCATION [2001]5 NSCQR 192; ABALOGU V. SHELL PETROLEUM DEV, CO. LTD. [2003] 14 NSCQR 1086.

 

 

The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 30th November, 2018.

 

ISSUES

  1. Whether the Claimant was in the employ of the 2nd Defendant when he    sustained injury resulting in permanent deformity.

 

  1. Whether the Claimant has not be able to prove the negligent of the defendants and therefore not entitled to compensation under any law in           force having suffered permanent deformity.

 

  1. Whether the claimant appointment was properly terminated and therefore   not entitled to his arrears of salaries.

 

ON ISSUE 1

Whether the Claimant was in the employ of the 2nd Defendant when he sustained injury resulting in permanent deformity.

 

  1.             It is Claimant’s counsel’s submission that where documentary evidence as in exhibit D25 lends weight to oral evidence, such oral evidence becomes more credible. HASKE VS. MAGAJI (2009) All FWLR (PT 461) PG 887@ 896 R. 16; BUNGE V. GOVERNOR, RIVER STATE (2006) All FWLR (PT. 325) PG 1 @ 8 R. 8.

 

ON ISSUE 2

Whether the Claimant have not be able to prove the negligent of the defendants and therefore not entitled to compensation under any law in force having suffered permanent deformity.

 

  1.             The Claimant’s Counsel argued that there is nowhere in the Defendants’ statement of Defence or the evidence on record, where the Defendant supplied any fact or set of facts as to the manner prescribed by the them in washing the concrete mixer other than the method described by the Claimant. That in a vain attempt to deny that there are better method prescribed by the Defendants, they exhibited and tendered a photograph of a man washing the mixer with a short-nicker, without safety boot, hand gloves or even safety helmet as the rightful method prescribed by the company which is exactly the same method the Claimant used when the machine was negligently kick started by the 1st Defendant whose name has been deliberately withheld by the Defendant though admitted that he work with them. AYERE V. BENDEL FEED AND FLOUR MILL LTD (2009) All FWLR (PT453) PG 1217 @ 1220 R3. He submitted that to be entitled to the damages, the Claimant pleaded facts and led evidence at page 11, 25, 26 and 33 of the statement of Claim and the statement on oaths stated the pains he has gone through as a result of the injury he suffered working for the Defendant. NALADO vs. ALI (AFWLR) (2006) PG. 225 R.11.

 

  1.             Counsel to the Claimant contended that the attitude of the Defendant was clearly displayed even before this honorable court by denying obviously that the Claimant was not employed at the time of the injury even on the face of exhibit D25. That they concealed the Claimant’s employment latter and formulated facts to deceive this court. Thus, that this is a proper case where the court is permitted by law to award aggravated damages against the Defendant in favour of the Claimant. N.M.A V. M.M.A. INC (2008) All FWLR (PT. 446) PG. 1916 @ 1924 R. 7

 

ON ISSUE 3

Whether the claimant appointment was properly terminated and therefore not entitled to his arrears of salaries.

 

  1.             Claimant Counsel noted that the letter of termination which is an exhibit before this honorable court stated on the face of it that the Claimant’s employment is terminated without pay. OVOH V. RELIANCE TELECOMMUNICATION LTD. (2013) 32 N.L.L.R PART 91 PAGE 128 R.5

 

  1.             On the 12th December 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgment.

 

Court’s Decision

 

  1.             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

 

  1.             I am inclined to adopt the issues for determination formulated by the Defendants. This way all the areas raised by the Defendant shall be resolved in answer to all the issues raised in this compliant.

 

ISSUES

i           Whether the claimant who was not an employee of the 2nd Defendant at the   time of his accident can make any Claim for damages for personal injury   against the 2nd Defendant under the 5/4Factories Act and the Workmen             Compensation Act.

 

  1.  Whether an unknown Defendant is a juristic person that can be sued and        whether in the face of evidence before the court, the 2nd efendant can be          held liable in an action predicated upon the acts of the 2nd Defendant who is          unknown

 

iii.        Whether the 2nd Defendant at the time of the Claimant’s accident owed the    Claimant any duty of care to warrant a claim for damages based on     negligence.

 

  1.  Whether the Claimant’s employment as a Trainee Excavator Operator after   his accident was rightly terminated by the 2nd Defendant.

 

 

  1.             With regard to the 2nd Defendant’s issues i and iii “Whether the claimant who was not an employee of the 2nd Defendant at the time of his accident can make any Claim for damages for personal injury against the 2nd Defendant under the 5/4Factories Act and the Workmen Compensation Act. “and Whether the 2nd Defendant at the time of the Claimant’s accident owed the Claimant any duty of care to warrant a claim for damages based on negligence

 

  1.             The 2nd Defendant’s made heavy whether of their submission that the Claimant was not employed by the 2nd defendant as a mixer truck driver before the incident that led to the Claimants injury and that it was only after the incident / injury that the defendants employed the claimant as a Trainee excavator. And submitted that the claimant did not prove to the court that he was an employee of the 2nd defendant as a concrete mixer Driver/operator at the time of the accident that led to the amputation of his right Leg. Contending that in the absence of this proof, it means he was never an employee of the 2nd Defendant and against this backdrop, it means the 2nd Defendant owed the Claimant no duty of care at the time of the accident. SUSAINAH (TRAWLING VESSEL) & 2 OTHERS VS. SEGUN ABOGUN (Supra).

 

  1.             During trial the  2nd Defendant objected to the tendering of 6 of the claimants documents Exhibit C2, C3, C4, C6,C10(1)  and these exhibits were admitted under protest with the direction that the 2nd Defendant raise their objection in their final written address. The 2nd Defendants short of their arguing that these exhibits were wrongly admitted and that the court had power to expunge wrongly admitted evidence the Defendants did not advance any reason for their objection. This objection is therefore considered abandoned. The 2nd Defendant also urged the court not to allow the Claimants rely on exhibits D18 and D19 arguing that the facts contained in these documents was not part of the Claimant’s pleadings.

 

  1.             The 2nd Defendant also argued that the Claimant cannot successfully make a claim under the Workmen Compensation Act as the legislation that has been repealed. And argued further that the Claimant also cannot claim under the new Employees Compensation Act 2010, as the Claimant was never employed by the 2nd Defendant. To the 2nd Defendant even if the Claimant’s employment was wrongfully terminated and he suffered personal injury, the Claimant is not entitled to the reliefs sought in this suit, GARUBA V. KWARA INVESTMENT CO. LTD. (Supra)

 

  1.             It is Claimant’s Counsel’s submission that where documentary evidence as in exhibit D25 lends weight to oral evidence, such oral evidence becomes more credible. HASKE VS. MAGAJI (2009) All FWLR (PT 461) PG 887@ 896 R. 16; BUNGE V. GOVERNOR, RIVER STATE (2006) All FWLR (PT. 325) PG 1 @ 8 R. 8.

 

  1.             The Claimant on the other hand also argued that the Defendant never supplied any fact or set of facts as to the manner prescribed for washing the concrete mixer other than the method described by the Claimant. Contending that the tendered photograph of a man washing the mixer with a short-nicker, without safety boot, hand gloves or even safety helmet as the rightful method prescribed by the company was a vain attempt to negate the Claimant’s case in that, the photograph showed the exact same method used by the Claimant used when the machine was negligently kick started by the 1st Defendant whose is being shielded by the Defendants, though they admitted that he work with them. AYERE V. BENDEL FEED AND FLOUR MILL LTD (2009) All FWLR (Supra). To the Claimant he was entitled to damages, as he had pleaded facts and led evidence as to the pains he has gone through as a result of the injury he suffered working for the Defendant. NALADO vs. ALI (AFWLR) (Supra) PG. 225 R.11.

 

  1.             To the Claimant the Defendant’s attempt to deny that the Claimant was employed at the time of the injury cannot succeed on the face of exhibit D25, and that this is a proper case where the court is permitted by law to award aggravated damages against the Defendant in favour of the Claimant. N.M.A V. M.M.A. INC (Supra).

 

  1.             The position of the law is that the Claimant is entitled to rely on the evidence put forward by the Defendant. See ODUTOLA V. SANYA (2008) ALL FWLR (PT. 400) 780 AT 793, PARAS. F – G (CA) where it was held that “…if the Defendant’s evidence supports that (the case) of the Plaintiff, he is entitled to rely on same to fortify his case. See Kodilinye v. Odu (1935) 2 WACA 336; Akinola v. Oluwo (1962) 1 All NLR 224″. In the circumstances I find that the argument  of the 2nd Defendant goes to no moment as these exhibits (Exhibit D18 and Exhibit D19 erroneously referred to as C18 and C19 (were admitted during defence )

 

  1.             Furthermore in LAMIDI v. STATE (2016) LPELR-41320(CA), the Court of Appeal had occasion to pronounce on the purpose of exhibit in the case of Buba v. State (1992) 1 NWLR (Pt. 215) 1 at 17, per Makhtar, JCA, thus: “Exhibits are not tendered and admitted in Court for the fun of it, they are for a purpose albeit to assist in determining the relevance of the exhibits to the case. Secondly, once they form part of the record they must be examined, scrutinized and assessed for just determination of the case.” See also, Ayinde v. Salawu (1989) 3 NWLR (Pt. 109) 297 at 314 at 314-315 and R V. Ukpong (1961) 1 ALL NLR 25.”  Per DANJUMA, J.C.A. (Pp. 47-48, Paras. E-B). And looking exhibit D25 I a satisfied that the claimant was infact the Trailer Motor Boy of the Defendants as at the time of the incident. Which means the Claimants injury took place in the cause of his employment which makes it a workplace injury.

 

 

  1.             Section 19(d) of the National Industrial Court (NIC) Act 2006 permits this Court to make “an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear”. Section 254C(1)(b) of the 1999 Constitution, as amended, gives this Court jurisdiction over the “Workmen’s Compensation Act or any other Act or Law…replacing” it. The injury complained of by the Claimant occurred on 14th July 2012. This means that the cause of action arose on that said date. By OBIUWEUBI V. CBN [2011] 7 NWLR (PT. 1247) 465 the law for determining a case is the law as at the time the cause of action arose. This means that the law for determining the instant case is the Employee’s Compensation Act 2010 which replaced the Workmen’s Compensation Act. PZ Cussons Nigeria Plc.  Having determined that the Claimant’s injury was sustained in the course “of his employment with the Defendant falls clearly within the contemplation of the new Employee’s Compensation Act and thus the Claimant is entitled to requisite compensation”. Now by section 2(2) of the Employee’s Compensation Act 2010, the implementation of the Act and the Fund established under section 56 is vested in the Nigeria Social Insurance Trust Fund Management Board. It is to this Board that a deserving employee must apply for compensation. It is when the employee is dissatisfied with the decision of the Board that an appeal shall lie to this Court under section 55(4) of the Act. In addition to this the Defendant is expected under this law to be credited monthly   all moneys, funds or contributions by employers for adequate compensation to employees or their dependents for any death, injury, disability or disease etc. Section 56. See also Section 33 also. There is nothing before the court to indicate that any of the pre conditions to evoking the provisions of the Employers Compensations Act have been complied with.

 

  1.             The 2nd Defendant in support of their contention that the claimant was responsible for the incident due to his failure to observed safety measures, and keep off the machine, frontloaded and tendered Exhibit D21 being, I find extracts relating to and titled ‘Work Security and Safety Plan’ on the one hand and Health and Safety Plan’ on the other., anything relating to staff discipline. With regard to the question of extracts as evidence before the Court, this Court, in MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS V. FEDERAL MINISTRY OF HEALTH UNREPORTED SUIT NO. NICN/ABJ/238/2012 the judgment of which was delivered on 22nd July 2013, had reasoned that because a complete set of the documents wherefrom an extract was taken was not shown to the Court, the court was unable to ascertain that the extracts were indeed part of the documents they profess to be, neither was the Court able to ascertain whether or not there are any other part or provisions of the complete documents that go contrary to the positions canvassed by the party relying on them. The Court held that “a party wishing to rely on extract, excerpt, summary, analysis or annexures from or summary of excerpts of a document is required to bring the whole documents to court for the court to be satisfied of the source of the excerpts and that no other conclusion could be otherwise made from the complete document. In such instances this court has held that the said excerpts and annexes would have no evidential value and are generally discountenanced. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS V. FEDERAL MINISTRY OF HEALTH UNREPORTED Supra, SUIT NO. NICN/LA/400/2013 MR. OLUREMI OMOSHEIN VS.CROWNS RELOCATIONS (NIGERIA) LIMITED delivered on 25th September 2014 and MR. OBONA AKPAN OFEM LOCAL GOVERNMENT SERVICE COMMISSION,CROSS RIVER STATE & 3 ORS  SUIT NO: NICN/CA/17/2014 delivered on the 4th May 2017. In that wise having not presented in court the original document from which Exhibit D2-D5 were made I find that I can place no evidential value on these exhibits.

 

  1.             Now, the fact of injury to the Claimant is not in doubt. The fact that the injury occurred at work is also not in doubt. Thus, making the injury one that is work related having occurred in the course of employment; and I so find and hold. See MR. CHARLES NWAOSA Vs. PORTS & TERMINAL MULTISERVICE LTD & ANOR unreported Suit No. NIC/LA/262/2012 the judgment of which was delivered on July 17, 2013, this court held that in order to succeed in a claim for damages the claimant is to prove to the court that the injury he sustained was as a result of the negligence of the defendant. The Claimants pleadings are that the 1st Defendant switched on the machine negligently knowing he was inside or not caring whether the Claimant was inside and the 2nd Defendant the owner of the machine failed to provide a safe way of cleaning the machine instead of the crude method that led to the Claimant’s injury. The Defendant on their part, argued that the injury was entirely as a result of the Claimant’s negligence and his disregard to warnings to keep away from the equipment yard that led to the accident. The Defendants contend that as responsible and responsive company the Claimant was taken to the hospital and his bill settled by them.
  2.             Although the Defendant did not establish the proper manner in which the machinery ought to be cleaned particularly as Exhibit D15 the photographs of the Concrete Mixer, as observed by the Claimant were devoid of any warning signs or safety equipment as is the 2nd Defendant’s responsibility in line with the position of the law following authorities of WESTERN NIGERIA TRADING CO. LTD V. AJAO [1965] ALL NLR 524 which held that it is employer’s duty at common law is not only to provide the employee with goggles, but also to see to it that they are used. In like manner, GREEN PACK RUBBER IND. LTD V. OSSAI [2004] 2 FWLR (PT. 194) 668, as well as Section 23 of the Factories Act, 2004 enjoins that no person should be employed at any machine or in any process being a machine or process liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed. All this as well as the employer’s liability at common law; – a general duty to take reasonable care to avoid injuring their neighbours. Which by implication means that not only do the 2nd defendants owe their employees a duty of care, they also owe passers-by a duty of care, hence dangerous equipment should be covered, concealed or cordoned off. See ADETONA V. EDET [2004] 16 NWLR (PT. 899) 338. There is, therefore, no proof that the Defendants observed any of the duties imposed on them or that their acts come within the qualification stated above. I find and hold that the Defendant is liable to the Claimant in negligence, the Claimant having proved the trilogy of duty of care, breach of the duty of care and resultant damage.

 

  1.             From the forgoing I find that the Defendants as employers have a duty of care toward the health, safety and well being of their employees and mere taking to hospital and paying of hospital bill do not adequately fulfill that duty. The claimant has pleaded that he was physically permanently incapacitated, devastated humiliated abandoned and rendered helpless due to the Defendants refusal to pay him any compensation or his salaries.
  2.             It was held in the case of OKE V. KAJA (2014) 3 NWLR (PT. 1394) 374 at 377 – 381 that it has been established by judicial authorities that in personal injury cases, two main factors are taken into consideration in assessing damages in cases of liability. These are:

The financial loss resulting from the injury; and

The personal injury suffered, involving not only pain and suffering, but also the loss of the pleasures of life. EDIAGBONYA v. DUMEZ (NIG.) LTD. (1986) 3 NWLR (pt. 31) 753

 

  1.             The claimant from all indications has suffered some losses, and by virtue of Section 19(d) of the National Industrial Court (NIC) Act 2006 this Court is empowered to make “an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear”. Section 254C(1)(b) of the 1999 Constitution, as amended, gives this Court jurisdiction over the “Workmen’s Compensation Act” or any other Act or Law…replacing it such as the Employee’s Compensation Act 2010, but the Claimant has not shown to the court under which law he is entitled to compensation or a lump sum as compensation or damages as prescribed by Section 19. This court has determined that the Claimant did indeed suffer a workplace injury. Now Section 14 provides that the Court shall in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that as far as possible so that all matters in dispute between the parties may be completely an finally determined and all multiplicity of suits concerning any of this matters is avoided. I find that a reasonable man would hold that the Claimant is entitled to compensation and that this is a just cause in which the Claimant would be entitled to a lump as compensation for the injury he sustained at the workplace of the Defendant. I resolve issues I and iii against the Defendants. Relief 1. therefore succeeds in part

 

  1.             With regard to issues ii “whether an unknown Defendant is a juristic person that can be sued and whether in the face of evidence before the court, the 2nd Defendant can be held liable in an action predicated upon the acts of the 2nd Defendant who is unknown.  The case of the Claimant is that the concrete mixer was a piece of machinery of the 2nd Defendant with a control switch and while it was of the started cleaning it and an unknown person switched it on which led to his injury. The Claimant case is that name of the person who switched on the machine is not known to him and the Defendants who may know the persons name is shielding the Claimant from knowing the person.  The pronouncement of Georgewill JCA in DAVIES & ORS v. ODOFIN & ORS (2017) LPELR-41871(CA) is most apposite in this case; -“Now, to answer the question posed earlier as to the proprietary or otherwise of suing the 6th Defendant as ‘Persons Unknown’ it is essential that the legal meaning of the word ‘Person’ is clearly understood and explained albeit briefly. In law, the word ‘Person’ connotes a natural person and an artificial person and thus whenever the word ‘Person’ is used in a Statute it has always been interpreted to include both natural and artificial persons. See IBRAHIM V. JUDICIAL SERVICE COMMISSION (1998) 4 NWLR (PT. 584) 1 @ P. 35. See also AG. RIVERS STATE V. AG. BAYELSA STATE (2013) 3 NWLR (PT. 1340) 123 @P. 148; OFFOBOCHE V. OGOJA LG. (2001) 16 NWLR (PT. 739) 458; LAGOS CITY COUNCIL V. OGUNBIYI (1969) 1 ALL NLR 197; IBERO CEMENT CO. LTD. V. AG. FEDERATION (2008) 1 NWLR (PT. 1069) 470 @ PP.499-501; HASSAN V AKILU (2010) 17 NWLR (PT. 1223) 547 @P. 622; EBOIGBE V. NNPC (1994) 5 NWLR (PT. 347) 649 @P. 659; NWADIARO V SHELL PDC (1990) 5 NWLR (PT. 150) 322. In the light of the above succinct meaning of the word ‘Person’, I am of the view that in law it is quite permissible in appropriate and deserving circumstances to commence an action against a person, though existing as a natural person but, whose name or real identity is not known to the Claimant at the time instituting the action in Court.” Per GEORGEWILL, J.C.A. (Pp. 42-43, Paras. D-E). in the instant case, and with reliance on DAVIES & ORS v. ODOFIN & ORS (Supra), I am satisfied that this is a proper situation in which the Claimant is entitled to bring an action against the 1st Defendant with the words “Unknown Person”. I resolve issue ii in favour of the Claimant and against the Defendants.

 

  1.             With regard to the 2nd Defendants issue iv,; – Whether the Claimant’s employment as a Trainee Excavator Operator after his accident was rightly terminated by the 2nd Defendant.

 

  1.             The 2nd Defendant’s Counsel’s submit that the Claimant’s employment as Trainee Excavator Operator was terminated in accordance with the provisions of the Employee Hand Book, while the claimants argue the contrary and maintain that the letter of termination which is an exhibit before this honorable court stated that the Claimant’s employment is terminated without pay.
  2.             The position of the law is that Parties are bound by their contract and in terms of employment relationship the importance and bindingness of the terms of the contract of employment which is contract of service between the parties cannot be overemphasized. ADEWEMIMO v. FINBANK SECURITIES AND ASSETS MANAGEMENT LIMITED (2015) 52 NLLR (PT. 173) 119 NIC @ 125

 

  1.             Also “Where the contract of Employment has been reduced to writing, the court and the parties are bound by those terms. The court has no duty to look outside the terms stipulated and agreed therein by the parties to the contract in determining the respective rights and obligations of the parties arising from the contract”. WESTERN DEV.CORP.Vs. ABIMBOLA [1966]4NNSCC 172. See also NWAUBANI Vs. GOLDERN GUINEA BREWRIES PLC. [1995]6NWLR Pt.400 Pg184, COLLEGE OF MEDICINE OF UNILAG Vs.ADEGBITE [1973]5SC149 and INTERNATIONAL DRILING CO. Vs. AJILILA [1976]2SC115

 

  1.             In the absence of a written contract of employment resource may be had to relevant trade custom and practice. DANIELS Vs. SHELL BP. PET. DEV CO. [1962]1 ALLNLR 19.

Now the law requires the proponent of an assertion to prove the assertion, in that he that avers must prove, CHAIRMAN EFCC & ANOR v. LITTLECHILD & ANOR where the Court of Appeal emphasized that “To my mind the age long principle of law that he who asserts must prove is sacrosanct in our jurisprudence.” Per OSEJI, J.C.A. (P. 30, para. B)  furthermore the Supreme Court in EKEAGWU Vs. THE NIGERIAN ARMY [2010] LPELR-1076(SC); [2010] 16 NWLR 419 per His Lordship Onnoghen, JSC reminded us that in an action for wrongful termination/dismissal/retirement only two primary issues call for determination. These are: whether the termination/dismissal/retirement of the plaintiff is wrongful; and the measure of damages recoverable where the termination /dismissal/ retirement is found to be wrongful. Even at this, the rule is that he who asserts must prove; and in employment law, the onus is on the claimant who asserts that his termination is wrongful to show how wrongful it actually is. And to do this, the claimant must place before the Court the terms of the contract of employment and then prove in what manner the said terms were breached; it is not for the defendant employer to prove any of this. See AKINFE V. UBA PLC [2007] 10 NWLR (PT. 1041) 185 CA and UTC NIGERIA LTD V. PETERS [2009] LPELR-8426(CA)

  1.             In determining the rights and duties of parties to an employment contract, the Court will consider the terms of contract of service between an employer and an employee. These terms of agreement are binding on both parties. See CHUKWUDINMA v. ACCESS BANK PLC (2015) 52 NLLR (PT. 176) 513 @ 519 NIC and FMC IDO-EKITI v. OLAJIDE (2011) 11 (PT. 1258) 1,

 

  1.             The Claimant contends that his letter of Termination stated clearly that he’s termination was without pay, while he did not tender his letter of employment nor the staff handbook the 2nd Defendants on their part maintained that by virtue of the provisions of the staff handbook but failed to tender, barring the extracts relating to and titled ‘Work Security and Safety Plan’ on the one hand and Health and Safety Plan’ on the other., anything relating to staff discipline. The reference by the 2nd Defendant to page 3, I find cannot be relied upon as page 3 in the former concerns Other Threats /Hazards and Security Focal Point. While page 3 in the latter refers to Emergency Plan; Specific Training and Site Maintenance, Protection and Sanitation. I find that the 2nd Defendant has not proved its assertion of being entitled, by the handbook, to terminate the claimant without pay.

 

  1.             The learned author Chigozie Nwagbara© in her book “Determination of Contract of Employment and Remedies for Wrongful Dismissal” 1st Edition reprint 2012 stated that there ae two types of wrongful termination, one when the termination is due to an overt wrongful act of the employer and the other constructive wrongful termination is where the provisions of notice are not observed, in this case I find that the Claimants grouse is one of constructive wrongful termination I find and hold.

 

  1.             In the circumstances I find that the Claimant employment being a master servant employment relationship. The 2nd Defendant has not shown the court the agreement between them and the Claimant permitting termination without pay. The evidence before the court that the Claimants was monthly paid worker and by the provisions of Section 11(2) (c)and considering the period for which he had worked , he is entitled to 2 weeks’ notice. And Section 11(7) provides that all wages payable in money shall be paid on or before the expiry of the period of notice.  Seeing as the Claimant employment is of the master servant genre the termination even where the substantially bad the law is that the termination still stands, from the date the letter of termination is given what that means is that the Claimant claim as far as it relates to payment of salary beyond 10th July 2014 cannot be granted in law, the Claimant is entitled to his salary for the month of his termination only. I find.

 

  1.             The Claimant did not present any evidence as to outstanding allowances and in that regard the court cannot make any pronouncement thereon.
  2.             The only outstanding issue is the quantum of damages to be awarded. The Claimant is asking for N500 Million as damages for negligence for the loss of his right knee amputated above the knee.

 

  1.             This court was faced with a similar situation in the unreported case of SUIT NO. NICN/LA/432/2013BABATUNDE AJALA VS. RITE PAK COMPANY LIMITED  delivered on 28th January 2019 “, held that the fact that damages are difficult to estimate and cannot be assessed with certainty or precision, does not relieve the wrong doer of the necessity of paying damages for its breach of duty of care and it is no ground for awarding nominal damages. SCC (NIG.) LTD V. ELEMADU [2005] 7 NWLR (PT. 923) 84 to 85, relying on CHAPLIN V. HICKS [1911] 2 KB 786. The case, relying on EHIDIAGBONYA V. DUMEZ (NIG.) LTD & ANOR [1986] 6 SC 149 AT 164; [1986] 3 NWLR (PT. 31) 753, went on to hold that in assessing general damages, the court has to consider what is fair and reasonable compensation for injuries sustained; and that previous awards made by judges in comparable cases can be relied on. In the area of damages for personal injury, HAMZA V. KURE [2010] LPELR-1351(SC); [2010] 10 NWLR (PT. 1203) 630 SC, and EDO STATE AGENCY FOR THE CONTROL OF AIDS (EDOSACA) V. OSAKUE & ORS [2018] LPELR-44157(CA), relying on IGHRERINIOVO V. SCC (NIG) LTD & ORS [2013] 10 NWLR (PT. 1361) 138, held that general damages are awardable for pain and suffering, discomfort and permanent scarring, and that no principle can be laid down upon which damages for such pain and suffering can be awarded in terms of the quantum. The Claimant was hospitalized as a result of the injury he sustained from the accident, although it was the Defendant who paid the hospital bills. See paragraphs 10 and 13 of the Claimant’s deposition”.

 

  1.             The Court continued “In KENNETH IGHOSEWE V. DELTA STEEL CO. LTD [2007] LPELR-8577(CA), the appellant had claimed in the High Court inter alia for permanent disfigurement of his finger next to the index finger and the partial disfigurement of the thumb. The Court of Appeal, after holding that “it is equally trite that in assessing what is fair and reasonable to bear in mind previous awards made by the Courts in comparable cases in the same jurisdiction or even in a neighbouring locality where similar social, economic and industrial conditions exist”, reviewed the award of damages by the High Court to a higher figure, applying the principle set down in EBE V. NNAMANI [1997] 7 NWLR (PT. 513) 419, which had similarly increase an award for personal injury to N10 Million.

 

  1.             50. This is 2019; and inflation has definitely set in. Kenneth Ighosewe v. Delta Steel Co. Ltd, citing Ejisun v. Ajao [1975] 1 NMLR 4 at 7, itself enjoined that awarded damages for pains and suffering and disfigurement, being a lump sum and a once and for all exercise, must also, in order to be fair and reasonable, take care of future economic loss otherwise known as prospective loss in order to keep up with the times and in particular with the economic strength or decline, as the case may be, of our national currency, the Naira. And in Arulogun v. COP Lagos & ors [2016] LPELR-40190(CA), though talking on damages for human right violation, Her Ladyship Augie, JCA (as she then was) held as follows:

It is settled that for award of damages to compensate the victims of human rights violation, it must reflect the economic reality of the Country – see Onogoruwa v. I.G.P. (1993) 5 NWLR (Pt.193) 593, wherein it was held -“In these days of racing inflation where the buying or purchasing power of the Naira falls drastically (and painfully so) every day and, therefore, not commensurate to the quality and quantity of goods bought, a Judge should, in the assessment of damages, consider the current market situation, It will be most unrealistic to ignore this fundamental aspect and merely theorize with principles of law and facts and figures presented to him in Court by counsel and witnesses. While the Judge is not expected to play the role of a housewife of Sangross Market, Lagos, Kasuwa Kurimi Market of Kano or the Ogbete Market of Enugu by sampling prices of goods randomly, he must always remind himself that market prices escalate by leaps and bounds and they affect the purchasing power of the Naira”. [Tobi, JCA (as he then was)] In that case, Onogoruwa v. I.G.P. (supra), decided in 1993, Niki Tobi, JCA (as he then was), painted a poor picture of the Naira in 1993, as follows – The Naira is no longer a stable and enduring currency. It floats in the money market adversely. It also floats in the Nigerian wind not because of its physical lightness but because of its loss of monetary value. After all, the Naira is now one heavy coin”. That was 1993; I wonder what he would say now about the Naira in 2016.

I repeat once again: this is 2019.”

 

  1.             51. The Defendant had submitted that the Claimant had discharged himself from the hospital when the incident happened opting for traditional treatment, a year later the Claimant returned his injury had deteriorated badly and what would have been an injury to his right  foot had now affected the better part of his leg which required amputation above the knee. The Defendants also exhibited their contribution to his initial treatment and subsequent treatment after the Claimant return one year later. Now all of this can only be mitigating factors as to the quantum of damages, not as to the fact of liability of the Defendant to the Claimant. The Claimant prays for N100 Million as damages. The law requires that employers insure their employees against instances such as this but there is nothing before the court to indicate this was done for the Claimant. There is no taking away the fact that the suffered and has lost a leg and will reminded of the accident for life. For this, and just this, I award the sum of N30 Million as damages to the Claimant against the Defendant. As a last point, I find that he Claimant is at liberty to have brought this action under common law liability in negligence, not the path of the any other Legislature which may have applied to his circumstance.

 

  1.             On the whole, and for the avoidance of doubt, I find for the Claimant against the Defendant. The Claimant’s case succeeds. I accordingly make the following orders:

 

  1.             The sum of N30,000,000.00 (Thirty Million Naira) being compensation for permanent incapacitation/deformity of the claimant’s right knee as a result of the injury negligently inflicted on him by the 2nd Defendant in the discharge of his duties in the course of his employment with the Defendant at Owerri Imo State.

 

  1.             The 2nd Defendant by order of this court are directed to pay the claimant his outstanding salary of N25,000.00 (Twenty Five Thousand Naira) only for the month of July 2014. Being the last month the claimant worked for the 2nd Defendant.

 

  1.             Cost of this suit is put at N100, 000.00 (One Hundred Thousand Naira Only).

 

  1.             All sum to be paid within 60 days thereafter interest of 10% per anum will inure.

 

  1.             This is the Court’s judgement and it is hereby entered.

 

 

…………………………………………

HON. JUSTICE E. N. AGBAKOBA

JUDGE.

admin

Website:

Related Story