Mr. Chucks Ajukwu -VS- Blueche Lomado Shipping and Logistic Ltd & ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A OJI PhD.

DATE: 4^THFEBRUARY 2019 SUIT NO: NICN/LA/510/2017

BETWEEN

CHUCKS AJUKWU……..……….………………… CLAIMANT

AND

BLUECHE LOMADO SHIPPING AND LOGISTIC LIMITED DEFENDANTS
ENL CONSORTIUM LIMITED

Representation:

G O Tamuno with Emeka Ojonta appear for Claimant

Ame Ogie with Chima Nnochiri appear for Defendants.

JUDGMENT

Introduction and Claims:

On 23^rd October 2017, Claimant commenced this suit via the General Form of Complaint and Statement of Facts accompanied by List of Witnesses, Witness Statement on Oath, List of Documents and Copies of the Documents. The said Complaint was amended on 30^th November 2017. Claimant claims against the Defendants as follows:

AN ORDER FOR DAMAGES in the sum of 20,000,000(Twenty million naira) being the sum due to the Claimant because of the negligent conduct of the 1^st and 2^nd Defendants that led to the permanent disability of the Claimant.
AN ORDER FOR DAMAGES in the sum of 20,000,000 (Twenty million naira) being the sum needed by the Claimant, for further medical treatment.
Cost of litigation in the sum of Five million (5,000,000) Naira.

In reaction, the Defendants entered conditional appearance vide the Memorandum of Appearance of 14^th December 2017. They equally filed their joint Statement of Defence, and other Defence processes. Trial commenced on 6^th June 2018 and ended on same 27^th September 2018. At the trial, the Claimant testified on his behalf and was cross examined. He tendered 3 exhibits marked as exhibits C1 to C3 as follows:

Exhibit C1 – Claimant’s letter of employment
Exhibit C2 – Letter to the Chief Medical of Hammadiya hospital;
Exhibit C3 – Claimant’s Solicitor’s letter to the Defendant dated 10^th

September 2017.

Adebayo Timothy testified as DW1, while Bamgbade Taiwo Adeniyi testified as DW2, on behalf of Defendants. Both witnesses were cross-examined. DW1 tendered 2 documents marked as exhibits D1 and D2 as follows:

Exhibit D1 – Ahmadiyya Muslim Hospital Apapa Medical Report dated the

19^th September, 2016;

Exhibit D2 – Ahmadiyya Muslim Hospital Apapa Medical Invoice/Bill

incurred on Mr. Ajukwu Chuks.

At the close of trial, the Court ordered parties to file and serve their respective written addresses. The Defendants’ Final Written Address dated 9^th October 2018 was filed on same date. The Claimant’s Final Written Address dated 30^th October 2018. On 12^th November 2018, the Defendant filed a Reply on Point of Law of same date. The Final Written Addresses were adopted on 26^th November 2018 and the Court adjourned for judgment.

Facts of the Case:

The Claimant became an employee of the 1^st Defendant vide a letter of employment issued on the 8^th of March, 2016. He was dispatched to work with the 2^nd Defendant, as a terminal worker. He resumed at the ENL consortium Terminal C & D Berth 12, the premises of the 2^nd Defendant as a terminal worker. On the 31^st day of August 2016 at about 12:45 pm while on official duty at the ENL Consortium Terminal C & D Berth 12 and while fully kitted on all the safety equipment as provided by 1^st Defendant, the vessel crane failed and collapsed on his hand cutting off his thumb. The management of the 2^nd Defendant rushed him to the Hammadiyya hospital situate at 39 Payne Crescent Apapa off Addo Avenue opposite NEPA building where he underwent surgery (refashioning of stump) and other forms of medication. The 1^st Defendant financed his treatment. Claimant alleges that he was later abandoned to his fate without any form of compensation. It is Claimant’s case that the Defendants refused him access to any of its officers and his medical records so as to help him ascertain the actual state of his health and aid him seek further medical treatment. The Claimant states that he is aware that the Defendants have concluded plans to terminate his employment on grounds invalidation on medical grounds. The Defendants denied this, stating rather that it has paid the Claimant the sum of N210,000 between the 1^st September, 2016 and the 25^th October, 2017; in addition to N1,000,000.00 (One Million Naira) it spent on Claimant’s treatment. Defendants’ contend that it was the duty of the Owners of the MV “J.S. POMEREL” to maintain and ensure that the vessel’s apparel – the crane, did not fail; and that by virtue of the provisions of Section 2 (3) (c) of the Admiralty Jurisdiction Act, 1991, the person who is liable for the injury to the Claimant as a result of the alleged defect in the equipment of the MV “J.S. POMEREL” is the Owner of the vessel and not the Defendants.

Submissions of Counsel:

The Defendants in their Final Written Address raised the following issues for determination:

Whether the injury sustained by the Claimant arose as a result of the negligent conduct of the 1^st and 2^nd Defendants?

Has the Claimant established before this Honourable Court that the 1^st and 2^nd Defendant abandoned him to his fate?

Whether the Claimant felt pain for a period of eight months before he lost his left thumb?

Has the Claimant established before this Honourable Court that he needs further medical treatment and rehabilitation and the cost of the alleged further medical treatment and rehabilitation?

Has the Claimant provided any evidence that the Defendants have concluded plans to terminate the Claimant’s employment on medical grounds?

Has the Claimant provided any evidence or proof in support of his claim for N20, 000, 000 (Twenty Million Naira) for his alleged permanent disability?

On the 1^st issue, Defendants submit that a perusal of the Claimant’s evidence would show that the Claimant did not state or give any particulars of the items of negligence relied on as well as the duty of care owed to him by the Defendants to enable the Defendants answer to them. They contend that, on the contrary, the Clamant stated that he was fully kitted on all the safety equipments and that it was the vessel – the MV “POMEREL” crane that failed and collapsed on his hand. Defendants contend that it was the duty of the Owners of the MV “J.S. POMEREL” to maintain and ensure that the vessel’s apparel – the crane, did not fail; and that the person who is liable for the injury to the Claimant as a result of the alleged defect in the equipment of the MV “J.S. POMEREL” is the Owner of the vessel and not the Defendants”. Defendants argue that Claimant did not join issues with the Defendants by filing a Reply to this fact neither did the Claimant’s Counsel cross examine the 1^st and 2^nd Defendants’ witnesses in respect of this, nor did they produce any evidence in rebuttal.

With respect to issue 2, Defendants argue that Claimant admitted under cross examination; and as stated in exhibit D1, that Claimant’s left thumb was refashioned by an Orthopedic Surgeon on the 3^rd of September, 2016; and that 1^st Defendant continued to pay Claimant’s salary until he stopped coming for it. Defendants submit that Claimant had not proved that he was abandoned. On issue 3, Defendants argue that Claimant could not have felt pain for a period of 8 months before he lost his thumb as he lost his left thumb immediately after the crane fell on it.

On issue 4, Defendants submit that the onus of proof is on the Claimant who admitted that an orthopedic surgeon refashioned his left thumb on the 3^rd day of September, 2016 to prove the additional medical treatment which he purportedly needed; and that the Claimant has not discharged that onus. On issue 5, Defendants also submit that Claimant did not lead any evidence to prove the allegation that 1^st Defendants wanted to terminate his employment on medical grounds. Finally on issue 6, Defendants submit that Claimant’s claims in paragraphs 15 (a), (b) and (c) are for special damages and should be proved strictly. They submit that Claimant has not proved any of the heads for special damages.

The Claimant, in his Final Written Address, raised the following 3 issues for determination:

Whether the Defendants owed the Claimant a duty of care:

Whether the Claimant suffered personal injury in course of carrying out the Defendant’s instructions.
Whether the Claimant is entitled to damages.

On issue 1, Claimant submits that Claimant has established that he had a contractual employment with the 1^st Defendant upon which he was instructed by the 1^st Defendant’s allocation officer to go and work at the scene of the accident. Claimant argues that, “in our legal jurisprudence, a common law duty of care is owed to an employee by the employer which entails among other things, the provision of a safe system of working environment – Western Nigeria Trading Co Ltd v. Bisari Ajao (1965) NMLR; and that “While the Defendant provided the safety kits and while the Claimant wore same fully while carrying out his duties, it is the duty of the employer , in this case the Defendants, to make sure the environment where they assigned the Claimant to was safe so as not to cause harm to it’s employee, the Claimant. Claimant then submits that the Defendants failed in that duty and the result is the collapse of the crane on the arm of the Claimant which caused the amputation of his thumb.

On issue 2, Claimant submits that both parties are in agreement that the Claimant suffered personal injury while carrying out the Defendants instructions to work on the vessel MV JS POMEREL. Claimant argues that that agreement means that he is entitled to damages as “Costs are therefore an automatic consequence of an event in the proceedings before the court which justifies or warrants the award of the same to a party…” He referred to the case of Ozigbu Engineering Co. Ltd v Iwuamadi (2011) All FWLR PART 553. Claimant argues that having established in issue two (2 ) that the Claimant suffered injury while carrying out the instruction of the Defendant, he is entitled to damages, especially since he can no longer make use of his left hand as a normal human being would.

Claimants further argue that his employability has been left at the compassion of any employer and as such he has lost his earning power. He further submits that general damages which the law implies is not specially pleaded; and that this includes compensation for pain and suffering and the like and if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future – Julius Berger (Nig) Plc v. Ogundelin (2013) All FWLR Part 676 Ratio 9 @ page 504.

Defendants in Reply, while agreeing that an employer owes a duty of care to its employee to provide a safe working environment, argue that in this case, the Claimant has not pleaded any particulars or adduced any evidence to establish that he worked in an unsafe working environment; and that the Claimant has not established how the Defendants breached their duty to provide a safe working environment.

Court’s Decision:

Having considered the evidence led in this case, I set the following issues down for determination, to wit:

Whether a case of negligence is made out against the Defendants;
Whether the Claimant is entitled to his claim.

Claimant’s case is founded on negligence. I arrived at this conclusion in view of Relief A sought by Claimant, and the 3 issues he stated for determination. The Chambers 21^st Century Dictionary (Revised Edition) defined negligence as, ‘lack of proper attention or care, carelessness,’ and includes, ‘a breach of legal duty of care for others’. According to Black’s Law Dictionary (10^th Edition), negligence is, “the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation”.

Case law is replete with clear statements on the nature of negligence. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do – See Alderson B in Blyth v. Birmingham Waterworks Co. (1856) 11 Exch 78 @ 784, cited in Cotter B and Bennett D, ‘Munkman on Employers Liability ‘, 14^th Edition, (London, LexisNexis 2008 p. 53). Negligence was defined in U.T.B. Nig v. Ozoemena (2007) 1SC (Pt. 11) 211 at 220, line 20 as “lack of proper care and attention, careless behaviour.” Per Kalgo J.S.C .

In Ayadi & Ors v. Mobil Producing (Nig.) Unltd (2016) LPELR-41599(CA) stated that negligence is:

Negligence can be said to be the failure to exercise that care which the circumstances demand, that is, the absence of care according to the circumstances. It is a fluid principle that has to be applied to the most diverse conditions and problems of human life. Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1.” Per BDLIYA, J.C.A. (P. 36, Paras. A-C)

In Adeta v. Nig Army (2016) LPELR-40235(CA), the Court of Appeal further held that:

In Des-Dokubo v. The Nigerian Army (2015) LPELR-25969(CA), negligence is defined as carelessness, disregard, default, inadvertence, indifference, in attention, laxity, omission, oversight, shortcoming, slackness, remissness, dereliction, heedlessness, forgetfulness and thoughtlessness. Black’s Law Dictionary 9th edition also defines negligence as follows: “The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. The term denotes culpable carelessness.” Per ABBA-AJI, J.C.A. (Pp. 25-26, Paras. F-C)

From all the above, the general concept of reasonable foresight is the criterion of negligence. In other words, negligence is not established by proving that the loss sustained by the plaintiff might have possibly and with extra ordinary foresight and prudence been avoided by the defendant. See Wema Bank Ltd v B.B.C. Brown Boveri (Nig) Ltd (1996) 6 NWLR (Pt. 454) 364.” Per Ogbuagu J.S.C

As held in Salako v. The State (2007) LPELR-4569(CA), what amounts to negligence depends on the facts of each case.

It is not enough to just allege negligence. Before an action can succeed in negligence, certain ingredients must be established. The Supreme Court in the case of U.T.B. Nig. V. Ozoemena (2007) 1 SC (Pt.11) 211 at 227-229 Line 20 – 15; (2007) 3 NWLR (Pt. 1022) 448 stated that in an action for negligence, a plaintiff can only succeed if in addition to pleading it and particulars thereof;

He or she must also show 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.

In the case of Anyah v. Imo Concorde Hotels Ltd & 2 Ors. (2002) 12 S.C. (Pt. 11) 77; (2002) 18 NWLR (Pt. 799) at page 377, this court held –

For the defendant to be liable for negligence there must be either an admission by him or sufficient evidence adduced to support a finding of negligence on his part.

It went further to hold that:

The most fundamental ingredient of the tort of negligence is the breach of the duty of care which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of the duty of care against the defendant, the action must fail. See Benson v. Utubor (1975) 3 S.C. (Reprint) 6; (1975) 3 S.C. 19; Okoli v. Nwagu (1960) SCNLR 48; (1960) 3 FSC 126; Nigerian Airways Ltd v. Abe (1988) 4 NWLR (Pt. 90) 524; Strabag Construction (Nig.) Ltd. v. Ogarekpe (1991) 1 NWLR (Pt. 170) 733.

The Claimant aptly listed out the following requirements of the tort of negligence:

(1) The Defendant owed the Plaintiff a duty to exercise due care;

(2) That the Defendant failed to exercise due care or had breached the duty of care;

(3) The Defendants failure was the cause of the injury suffered by the Plaintiff.

In MTN V. Mundra Ventures (Nig.) Ltd (2016) LPELR-40343(CA), the Court of Appeal gave a succinct conclusion of the whole matter when it held that:

Once a Plaintiff leads evidence which creditably and cogently establishes a duty of care owed him by the Defendant, the breach of that duty by the Defendant and the resultant damages he is entitled to his claim for damages for negligence. The converse is thus the case once a Plaintiff fails to establish by credible evidence all or any of these key three ingredients of the tort of negligence, such a claim fails and ought to be dismissed. The Plaintiff must prove that the injury caused him was as a result of the negligence of the Defendant, nothing else or less would be sufficient. See B. J. Ngilari v. Mothercat Ltd (1999) 13 NWLR (Pt. 636) 626. See also Oyidiobu v. Okechukwu (1972) 5 SC 191; Ohire v. NEPA (1998) 7 NWLR (Pt. 557) 187; R. v. Tatimu (1952) 20 WLR 60.

See also the requirements stated in Oilserv Ltd. v. L.A.I. & CO. (Nig.) Ltd. (2008) 2 NWLR (Part 1083)

The question is if these ingredients have been established in this case. Parties are in agreement that there exists an employment relationship between Claimant and 1^st Defendant. It is Claimant’s argument that this relationship creates a duty of care. While it is accepted that the relationship of employment creates a duty of care, the type of duty of care created needs to be specifically stated. Based on the facts of this case, it is contended by Claimant that the fact that he had no relationship with the MV POMOREL except to do the work of the 1^st Defendant, automatically makes Defendants liable to him in negligence. Claimant does not mention the nature of the duty of care owed; nor how it was breached.

The law on Employers Liability for injuries that occur to employees in the course of employment ensures that no employee who is injured in the course of employment goes without compensation for the injury. It provides the employee with choice of legal regimes to utilize for the purposes of the compensation. An employee can either:

Sue his employer in negligence founded on the breach of the common law duty of care;
Sue the employer where injury occurred due to a breach by the employer, of a statutory duty, for example, as contemplated by the Factories Act.
When the employer is not blameworthy in negligence, sue an occupier of premises for negligence founded on Occupiers’ Liability.
Sue another employer for injury or loss sustained by an employee, which is caused by the employer’s employee in the course of his employment; in which case the liability is vicarious;
Seek compensation under the Employees’ Compensation Act, for injuries which occurred in the course of employment, either by accident or as a consequence of the employment.

The choice is usually that of the Claimant. Each regime has its pre-conditions to be met before the Claimant can be entitled to the claim. Where the employee is unable to fulfill the conditions, then he may lose a deserved compensation.

Defendants in their submissions also referred to the provision of the Admiralty Jurisdiction Act, 1991, which enables the Claimant to choose to sue the owners of the Vessel MV ‘JS POMEREL’ as the person who is liable for the injury to the Claimant as a result of the alleged defect in the equipment of the MV ‘J.S. POMEREL’. Claimant made no response to this assertion in his Reply.

Claimant, having chosen to sue Defendants in negligence must meet the pre-conditions for an action in negligence. He has not shown that the Defendants failed in any duty owed to him. There is no evidence that the MV ‘JS POMEREL’ belonged to either of the Defendants; such that it was their duty to ensure or guarantee its safety. On the contrary, there is agreement by parties that Claimant was fully kitted on all safety equipment needed for the assignment, provided by the 1^st Defendant. I do not therefore find, in the circumstance of this case, that Claimant has established the duty of care that existed, and how it was breached.

On issue 2 set for determination by the Court, whether Claimant is entitled to his claim, I have considered the claims of the Claimant. With respect to the first Relief sought, which is for an order for damages in the sum of 20,000,000(Twenty million naira) being the sum due to the Claimant because of the negligent conduct of the 1^st and 2^nd Defendant that led to the permanent disability of the Claimant; the Court having found under the first issue, that Claimant has not proved Defendants’ negligence, this Relief fails.

Relief 2 is for an order for damages in the sum of 20,000,000 (Twenty million naira) being the sum needed by the Claimant, for further medical treatment. The finding with respect to Relief 1, entirely dispenses any need for further consideration of this Relief. However, it needs be pointed out that Claimant has not led evidence on the need or basis for the further medical treatment. He has not stated the form of further medical treatment needed. Though Claimant alleged that he was refused access to his medical records, to which Defendant through DW1 denied during cross examination; I do not see how the absence of the records precludes Claimant from knowing the condition of his health, vis-à-vis the cut finger; and the further treatment that is required. I therefore find that Claimant has not proved the need for further treatment.

Claimant also alleged that though the Defendant financed his treatment, they later abandoned him to his fate without any form of compensation. However, during cross examination, he stated that:

I was signing for some stipend from Defendant for a period of time. Between 1^st September 2016 to about one year, I was collecting N15,000.00 every month. I cannot say the total I have collected. I chose to stop signing for the stipend because they were not taking care of my medical needs.

Defendants gave evidence that 1^st Defendant spent the sum of 1,000,000 (One Million Naira) on the treatment of the Claimant at its retained Hospital – Ahmadiyya Muslim Hospital Apapa, which included surgery (refashioning of stump), frequent visits of the Claimant to the Hospital, review of the Claimant’s health, oral medication and counseling. This they proved by tendering of exhibit D1 and D2, without contention. There is also no proof that Defendants were preparing to terminate Claimant’s employment as alleged. It is rather in evidence that 1^st Defendant has paid the Claimant the sum of N210,000 between the 1^st September, 2016 and the 25^th October, 2017. The injury occurred on 31^st August 2016, Claimant admitted being paid monthly from 1^st September to 25^th October 2017. This suit was instituted on the 23^rd of October 2017. I see no evidence of abandonment in this scenario; nor any showing Defendants were preparing to terminate the Claimant’s employment.

In all, I do not find that Claimant has proved his entitlement to the Reliefs sought in this case. I therefore dismiss this suit in its entirety. I make no order as to cost.

Judgment is entered accordingly.

……………………………………

Hon. Justice Elizabeth A. OJI PhD