MR. EMMANUEL NJOKU -VS- S.J. ABED GENERAL ENTERPRISES LTD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

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

Dated: 27^thday of February, 2019 SUIT NO: NICN/PHC/39/2018

BETWEEN:

MR EMMANUEL NJOKU……………………………..………………………………………..………………..CLAIMANT

AND

S.J. ABED GENERAL ENTR. LTD ……………………………………………………………….……..DEFENDANT

Representations:

C.N. Mgbeahurike with O.B. Njogo for the Claimant .

G.N. Owhoji with Darlington Ekweremadu for the Defendants.

Judgment

This suit was commenced by way of a general form of Complaint filed on the 15^th of March, 2018 along with a statement of fact, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.

The Claimant is by the Complaint and statement of fact claiming against the Defendant the following:

(a) A DECLARATION that the Defendant was negligent in the treatment of the Claimant’s gunshot attack by sea pirates and same resulted to Claimant’s permanent disability.

(b) A DECLARATION that the Defendant deserve to be adequately compensated by the Defendant as the injury of permanent disability was sustained at the cause (Sic) of Claimant work and Defendant’s negligent (sic) led to the Claimant permanent disability and payment of his unpaid salaries.

(c) A DECLARATION that the termination of Claimant from the employment of the Defendant is wrongful, unjust, null and void and same employment still subsisting.

(d) AN ORDER OF RE-INSTATEMENT of the Claimant by the Defendant with effect from May 25, 2015 when the Claimant was wrongfully terminated from employment of the Defendant and payment of all entitlements to the Claimant by the Defendant from the said date with interest at the Bank prevailing rate.

(e) AN ORDER OF INJUNCTION perpetually restraining the Defendant, its agents, workers and servant from henceforth acting adversely towards the Claimant in the cause (sic) of his employment or otherwise victimizing and unlawfully terminating the Claimant’s contract of employment.

(f) In alternative to reliefs (c), (d) and (e) above, an order compelling the defendant to pay the claimant the sum of N20, 000,000.00 (Twenty Million Naira) as damages for wrongfully (sic) determination of the Claimants contract of employment with the Defendant and incalculable hardship in the circumstances.

(g) The sum of N100,000,000.00) One Hundred Million Naira) only as general, aggravated and exemplary damages for disability of permanent nature, continuous deterioration of his leg and pains as a result of improper treatment, loss of future work opportunities.

(h) Cost of this action at N500,000.O0 (Five Hundred Thousand Naira) only.

In reaction to the Claims, the Defendant on the 26^th of March, 2018 filed a statement of defence wherein the defendant posited that the Claimant is not entitled to the claims as same is frivolous, speculative and lacking merit. Accompanying the statement of defence is a list of witness, witness statement on oath, list of documents to be relied upon at trial and copies of the listed documents.

Upon receiving the statement of defence, Claimant filed a reply on the 17^th of July, 2018.

Trial commenced on the 29^th of October, 2018 and in opening his case, the Claimant called two witnesses in person of the Claimant himself, Emmanuel Njoku, as CW1 and IbinaboMarkson as CW2. Both witnesses adopted their witness statements on oath and same were marked as C1 (a) and (b) and CW2(a) respectively. Through CW1, 12 documents were tendered and admitted in evidence as exhibit C2 – C13 while C11-C13 were admitted under protest.

Arising from the statement of fact and witness statements on oath of the claimant, the case of the Claimant is that he was at all material times to this suit an employee of the Defendant and worked in the Defendant’s kitchen at Shell (Ekulama 2) now Newcross Exploration and Production Limited in Bayelsa State. He was employed via a letter of employment as a general helper, with identity card no.: 0252. His employment was approved after he was subjected to a medical fitness test for food handlers and was certified fit by Alma Hospital. His employment letter was given to him for sighting and was collected back by the Defendant as done to most employees in the Port Harcourt branch.

On 6^th of August, 2013, he was to clock out from work location (Ekulama 2) and return to Port Harcourt but he waited for his reliever to clock-in and relieve him and also for the helicopter that was to carry him out of the location to no avail. On the 7^th of August, 2013 he got to know that the helicopter could not make it to the location as a result of unfavourable weather condition for flight. Eventually Mr. Ibinabo came in by sea to relieve him in the evening of 7^th August, 2013. The said Mr. Ibinabo had gone to collect money for both himself and the Claimant to transport by sea in view of the unavailability of the helicopter and traveling by sea was a regular means. The claimant could not travel after clocking out on 7^th August as the reliever came late so he waited till the 8^th of August, 2013. In the course of the traveling by sea, while the boat boarded by the claimant had made its way through the creeks to the high sea, an unsuspecting boat filled by sea pirates sped towards the boat the Claimant was aboard and began to rain bullets on the boat and passengers aboard the boat. The result of which left some aboard the ill-fated boat dead and left the Claimant with injury from gunshot on his left leg. After the pirates stopped shooting and left the scene of the incident, they were finally rescued and taken to a hospital where he was given emergency treatment. The police carried out investigation, issued the Claimant a medical report and confirmed the Claimant’s injury was from gunshot by the sea pirates. He was moved to Braithwaite Memorial Specialist Hospital (BMHS) where medical practitioners with wealth of experience on such cases had commenced a professional process by recommending an x-ray examination to ascertain whether there was bullet(s) in his bone or not. The defendant did not pay the cost of x-tray or any cost at all but moved the Claimant to Alma Hospital at 15, Wami Street, Oroworukwu, Port Harcourt which is the company retained hospital where he was dumped for seven days while waiting for orthopedic surgeon. The surgeon eventually came and concluded that there was no bullet in the bone and the wound on the leg was stitched. The surgeon directed the claimant to come back in two months for an operation on the leg for correction. When he returned in two months, the hospital realized that they lack the expertise to handle the case of the Claimant and referred him to Military Hospital stating that the Claimant has foot drop. Upon getting to the Military hospital, he was asked to get the hospital card and make payment of deposit for treatment to commence. He didn’t have money and so reverted to the General Manager of the Defendant but he was abandoned at the hospital and was informed that the company would not take up payment for treatment that is outside the company hospital, Alma Hospital. The doctor at Alma Hospital told the Claimant to treat himself and send the bill to the Company Hospital to be incorporated into the Company bill but the Claimant himself does not have such financial capacity and that led him to resort to traditional treatment and now he has permanent disability owing to the delay in the treatment which led to foot drop and the failure of the defendant to take up responsibility for treatment. He posited that the permanent disability/disfigurement of his leg has made it impossible to engage in any meaningful business or activity and can no longer find employment. The Claimant posited that after the pains subsided, he returned to work with discomfort to avoid termination of his employment but was shocked when on the 25^th of May, 2015 he received a notice of redundancy with effect from 1^st June, 2015. He contended that the notice was not unconnected to his impairment and a veil for the termination of his employment. He contended that he was not paid any terminal/redundancy benefit. The Claimant got his lawyer to write to the Defendant but same yielded no result, hence this suit.

Upon cross examination of CW1, he posited that he was employed sometime in 2010. He confirmed that one of the company’s safety policy is that an employee cannot leave the board without a reliever relieving him on duty. He confirmed that they travel either by boat or helicopter and he left about 6 to 6:30 am on the day even though he ought to have left since the 6^th but his reliever arrived on 7^th. He confirmed he had worked for 3 years in the defendant company and is aware of how volatile the area is. He confirmed that they normally travel by morning and that the company did not make provision for special boats. He also stated that the day he saw the officer of the company, Mr. Promise was the day he was moved from Braithwaite Memorial Specialist Hospital to Alma Hospital. Claimant stated that he doesn’t know if the hospital took care of his hospital bill. He posited that nobody took care of his bill at Military hospital. He also confirmed that his employment was terminated not that he was dismissed. He denied that his termination was due to the contract of the Defendant also being terminated. He posited that Alma hospital was negligent because they left his wound open for 7 days.

CW1 was discharged, while CW2 upon adopting his witness statement on oath posited that he was given an employment letter but it was collected back while his I.D. Card had already been tendered as Exh.C10.

The only question asked of CW2 was whether he was still an employee of the Defendant and he responded that he was but not any longer.

The said CW2 was discharged and the Claimant closed his case.

The Defendant in opening their case called one witness in person of Musa Gadzama as DW1whose witness statement on oath was adopted and marked as D1. Three documents were tendered through DW1 and same were admitted as D2, D3 and D4, the last of which was admitted under protest.

Arising from the statement of defence and witness statement on oath, the case of the Defendant is that the Claimant was an employee of the Defendant till the 25^th of May, 2015 when his employment was terminated and that they are not in custody of the Claimant’s employment letter having issued same along with an I.D. Card. They posited that the Claimant has never been diligent in his service to the Defendant particularly the event that led to the injury sustained by the Claimant was as a result of insubordination. They added that it is the policy of the Defendant that staff who are due for clocking-out of location will always remain at the location until being relieved by the reliever for safety reasons and in order to have a proper record of the staff and also not to cause stoppage to productivity. The Claimant who was due to clock-outof the location on 6^th day of August 2013 left Ekulama 2 location on 8^th of August 2013 when the staff that was to relieve him was yet to arrive the location. They contended that it is false that Mr. IbinaboMarkson relieved the Claimant and gave him transport fare approved by the Defendant before the Claimant left Ekulama 2 location. That the Claimant abandoned his duty post and boarded boat to Port Harcourt before the incident occurred on the sea. The Defendant reckoned that traveling in and out of the location can be by air or sea depending on which is available. When the Defendant learnt of the Claimant’s admission at Braithwaite Memorial Specialist Hospital, they sent Mr. Promise to visit and ascertain his health condition and then moved him to their retained hospital (Alma Hospital) for continuation of treatment. They also paid the Claimant’s medical bill at Braithwaite Memorial Specialist Hospital. They posited that the Claimant was given all the necessary medical attention at Alma Hospital before being referred to Military Hospital. They posited that the Claimant abandoned the physiotherapy treatment at the Military Hospital Port Harcourt and opted for native/local treatment which contributed to his plight. They posited that they took responsibility (financial/kind) of the Claimant medical challenge at Braithwaite Memorial Hospital, Alma Hospital and Military Hospital respectively without any contribution from the Claimantand was not negligent in the medical treatment of the Claimant.

The Defendant also posited that it became expedient to reduce its staff strength generally and that was what led to the termination of the Claimant’s employment and the Claimant had been paid his entitlements in line with the company policy. The Defendant contends that the Claimant is not entitled to the claims as they are frivolous and lacking in merit.

Upon the cross examination of DW1, he asserted that he had worked for the Company for 16 years and he is an Area Manager. He confirmed that the company has a register to show how workers log in and out but he doesn’t know if same is before the court. He posited that there is receipt to show that the company paid hospital bills. He posited that there is no medical form signed by the Claimant to be taken out of Braithwaite Hospital. When asked if it will be correct to state that the Defendant was negligent in moving the Claimant out of a specialist hospital into a private hospital without authority, he posited that the Clinic is one of the best in town.

Upon that, the DW1 was discharged and the case of the Defendant was closed with the matter adjourned for adoption of final address.

The Defendants filed its final address on the 19^th of November, 2019 and same was adopted by counsel to the Defendant, G.N. Owhoji Esq. on the 21^st of January, 2019. Arising from the said final address, counsel to the Defendant formulated three issues for determination to wit:

Whether the Claimant has established a case of wrongful termination of his employment by the Defendant?
Whether the Claimant has established a case of negligence against the Defendant in the handling of the Claimant’s gunshot injury?
Whether the Claimant is entitled to general, aggravated and exemplary damages?

In arguing issue one, counsel submitted that the relationship between the Claimant and the Defendant herein is that of master and servant which is guided by the terms and conditions of employment and that it is trite that terms and conditions of contract of service are the bedrock of any case where the issue of wrongful termination of employment calls for determination and should therefore be pleaded. He cited the case of Ogundipe vs. Nigeria Telecommunication Ltd. ((2016) All FWLR (pt. 81 7) 613 at 631. Nigerian Gas Co. Ltd vs. Dudusola (2005) 18 NWL.R (Pt. 957) 292.

Counsel added that the law is settled that a Claimant who seeks declaration that the termination of his employment was wrongful must prove the following materials facts namely:

That he is an employee of the Defendant;
The terms and conditions of his employment; and
The way and manner, and by whom he can be removed. Ogundipe vs. Nigeria Telecommunication Ltd. (supra).

Counsel submitted that there is nothing before this court showing/proving the terms and conditions of employment of the Claimant save Exhibit D2/C7 which merely communicated the Claimant’s termination and payment of his entitlement. We therefore urge this honourable Court to hold that the Claimant has failed to establish a case of wrongful termination of his employment by the Defendant.

Counsel further submitted with regards to the relief of re-instatement of the Claimant and order of perpetual injunction that the law is settled that the court will not compel an unwilling employer to retain any worker, particularly in an employment without statutory flavour such as the instance case.counsel cited the cases of ATIVITE V. KABELMETAL NIG. LTD (2008) VOL. 164 LRCN 71 AT P88.KWARA STATE POLYTECHNIC V. SALSU (2012) 41 WRN 26 AT 61.

He added that the Claimant haven been paid one month salary and other entitlement due him via Exhibit D2/C7 is not entitled to any form of damages arising from the termination of his employment.

With regards to issue two, counsel submitted thatin all cases, the burden to prove negligence rest with the plaintiff except where the facts and circumstances allows a plaintiff to plead and rely on the doctrine of res ipso loquitur then the defendant will be required to offer explanation that will show or prove that he was not negligent but such is not in the instant case hence the Claimant bears the burden to prove negligence. He cited the case of OjoVs. Gharoro (2006) Vol. 138 LRCN 1652 at 1713.

Counsel further contended that for a claim in negligence to succeed, the Plaintiff must prove that the Defendant owes or owed him a duty to care and was in breach of that duty; and that he suffered damages as a result of the breach of that duty and the requirements must be jointly proved. He cited the case of lyere vs. BFFM Ltd. (2009) Vol. 168 LRCN 143 at 182.

He posited that the evidence presented before this court by the Claimant have not shown or proven that the defendant owe the Claimant a duty to ensure adequate treatment of the Claimant’s injury and that the said duty was breached. He added that it is not a duty of care owed the Claimant for the Defendant to ensure adequate medical treatment of the Claimant.

Counsel maintained that the plaintiff in an action for damages for negligence must show that he was injured by the negligent act or omission for which the defendant is in law responsible. He cited the case of Iyere vs. BFFM Ltd.(supra) and added that in the instant case, the Claimant have failed to show that the gunshot injury he sustained on the creek was as a result of the negligent act or omission of the defendant under law to provide security for him.

With regards to issue three, counsel submitted that aggravated damages are a kind of damages that are in a class of their own and different from special and/or general damages. Counsel cited the case of Salami vs. UBN Plc (Supra) and contended that the Claimant has not in his evidence before this court shown that the Defendant committed the wrongful act he complained of or was handed, outrageous, insolent, vindictive, oppressive in the Claimant’s employment or handling of the claimant’s injury beginning from his admission into BHM to his transfer to Alma Hospital and finally his referral to Military Hospital for physiotherapy treatment.

He added that evidence abound before this court that the Defendant showed good care to the Claimant through his employment and in payment of his medical bills and ensuring that the Claimant remains in the service of the Defendant between 2013 when the incident occurred and 2015 when the Claimant’s employment was terminated as a result of downsizing.

With respect to exhibits before this court, counsel submitted that is settled law that statement or document made by a person interested and or when proceedings are pending or anticipated are inadmissible in evidence. He cited section 83 (3) Evidence Act 2011 (As Amended) and the case of Jegede Vs. Oluwasesan (2012) 15 WRN 82 at 109 and contended that Exhibits C11&13 were made on 21/05/2018 respectively and Exhibit C12 was made on 30/05/2018 while this suit was filed on 15/3/2018 and the Defendant responded on 26/3/2018. He then submitted that Exhibits C11, 12 &13 are document made during the pendency of this suit and were admitted in error before urging the court to expunge them.

With regards to exhibit D4, counsel maintained that same is a letter addressed to the Defendant and does not require the presence of the author before it can be tendered in evidence.

Counsel concluded by urging the court to dismiss the suit with cost.

In reaction to the Defendant’s final address, the Claimant on the 14^th of January, 2019 filed his final written address wherein counsel to the Claimant, C.N. Mgbeahurike Esq. formulated two issues for determination to wit:

Whether the Claimant having sustained injury of permanent disability and disfigurement in the course of his employment with the Defendant deserve adequate compensation.
Whether the declaration of the Claimant redundant after sustaining injury of permanent disability and disfigurement and some other ill treatment against the Claimant by the Defendant constitutes unfair labour practice and offend the tenets of international best practices on labour.

In arguing issue one, counsel posited that it is an extant provision of the law that where an employee in the course of his employment or duty sustains injury of permanent disability, he must of necessity be adequately compensated. He cited the case of Mr. Solomon Jude v. Nigeria Bottling Company Plc., unreported with Suit No: NICN/OW/33/2013 which was delivered on January 19, 2015 by his Lordship HON. JUSTICE O. N. ANUWE.

Counsel contended that in view of the averments in paragraphs 6, 7, 8, 9, 10 and 11 of CW1’ statement on oath and the testimony of CW2, the injury sustained by the Claimant was in the course of his duty as the CW2 was the one who relived him from duty before the accident occurred on the 8^th of August, 2013. He contended that the Defendant did not present the company register because the Defendant is very much aware that the Claimant clocked-out in accordance with the Defendant’s operational policy. Counsel cited the case of EMMANUEL v. UMANA (2016) EJSC (Vol.46) p. 151, paras. C-F on the position that averments in pleadings that are unsupported by evidence goes to no issue and submitted that in the instant case, the Claimant has proven beyond preponderance of evidence that he was in the course of his duty at the time he sustained the injury of permanent disability.

Counsel further cited the case of BRITISH AIRWAYS VS. ATOYEBI (2015) EJSC (VOL. 2)137 (c) 173, paras. (D — U) on elements to establish negligence and posited that it is a clear fact that the Claimant was an employee of the Defendant who was operating within the course of his duty at the time he was shot by sea pirates on his way back from the Defendant location at Shell (Ekulama 2) Offshore and by so doing, the Defendant owe a duty of care to the Claimant especially where the Defendant deliberately refused to provide the Claimant and other employees with security boat or adequate security having known how volatile the terrain is or even an insurance policy to help in time of this kind of situation.

Counsel also contended that the Defendant could not produce receipts of payment of Claimant bills or other document showing transactions at Braithwaite Memorial Specialist Hospital, especially Military Hospital where Defendant’s retained hospital referred the Claimant to.

Counsel also added that upon the Claimant establishing that the Claimant was once an employee of the Defendant, there is an implied duty owed to him by the defendant. Counsel cited the case of Lloyde v. West Midlands Gas Board (1971) 2 ALL E. R. 1240 at 1246 and Julius Berger (Nig.) Plc v. Ogundehin (Supra).

Counsel also posited with regards to damages that any person whom a tort is committed against once proven deserve to be compensated and the person who committed the tort is under obligation to pay an award of general damage to assuage all losses as a result of same. He cited the case of Julius Berger (Nig.) Plc v. Ogundehin (Supra) to concretize how the grant for damages for pain and suffering.

With regards to exhibits C11, C12 that was challenged to have been made during the pendency of the suit, Counsel contended that the Military hospital has no interest in the suit and that the making of the document arose from the lies told in the statement of defence that payments were made to Military hospital hence the documents do not fall within the competence of section 83 of the Evidence Act. Counsel cited the case of U.T.C (Nig.) Plc v. Lawal (2004) 5 NWLR (Pt. 1400) Pp.236, para,C-E; 239-240, PARA.G-G; 241-242, PARA E-D.

With regards to issue two, counsel contended that the Defendant did not lose any of its contracts anywhere to warrant declaring the Claimant redundant. That at the time he was declared redundant, the Defendant was in full operations at its base at Shell Ekulama 2 and is currently there operating in full capacity. Counsel added that the Defendant claimed that Shell terminated its contract and same led to declaring the Claimant redundant, but failed to lead evidence in proof of its claim.

Counsel posited that assuming the contract of employment of the Claimant was terminated due to redundancy, the Defendant did not follow the procedure laid down by law in declaring the Claimant redundant. Counsel cited section 20 (1) (a-c) & (2) of the Nigeria Labour Act, CAP L1, Laws of the Federation, 2004.

Counsel also added the failure of the Defendant to give the Claimant and other employees their letter of employment is an unfair labour practice and so is the purported plan to pay the Claimant N6,957.50 as shown in Exhibit C7/D2.

Counsel posited that under international best practice, an employee can be reinstated especially with the facts surrounding the Claimant’s termination.

Counsel concluded that the Defendant having failed to present any defence before this court to challenge Claimant’s entire case, the court ought to grant all Claimant’s reliefs as they appear on the Complaint and Statement of Facts and urged the court to so hold.

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

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for the determination of this suit is to wit:

whether or not the claimant has proved his case as to be entitled to the reliefs sought?

Before addressing the sole issue, I find it apposite to first deal with the status of Exhibits C11, C12 and C13 which counsel to the Defendant, Owhoji Esq. urged this Court to court to expunge and Exhibit D4 which was admitted under protest.

With regards to Exhibits C11, C12 and C13, Counsel to the Defendant through the final address urged the court to expunge the said document on the ground that same were documents made during the pendency of this suit and are inadmissible in view of the provision of section 83 (3) of the Evidence Act 2011. In reaction, Counsel to the Claimant posited that the documents do not fall under the provision as they were not made by parties who had interest in the pending suit.

To resolve the above contention, it is expedient to consider section 83(3) of the Evidence Act as cited by counsel to the Defendant and same is hereby reproduced for want of clarity:

Section 83(3) reads:

Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute is to any fact which the statement might tend to establish.

The wordings of the provision are clear and unambiguous to the effect that for the document or statement to be inadmissible, it must have been made by a person interested in the pending proceeding. The provision of the Evidence Act have been given credence in the case of DISU OLOMO v. SUNDAY APE(2013) LPELR-22327(CA) where the court held that:

“there is no doubt that Section 83 (3) of the Evidence Act is anchored on the doctrine of lispendens which prevents the admission of documents made pende lite. Achike, JSC had in OGIDI & ORS v. DANIEL EGBA & ORS (1999) 10 NWLR (Pt. 621) 4 deprecated the admissibility of such documents made by interested parties pending litigation. He had held that the doctrine is common to both Courts of law and Equity. In the case of ABDULLAHI v. HASHIDU & ORS (1999) 4 NWLR (Pt. 638) at 645 – 647; Pats Acholonu, JCA (of blessed memory) noted that by the provisions of Section 91(3) (now 83(3)) of the Evidence Act, documents made during the pendency of an action for the purpose of the action and particularly after pleadings have been filed should not be admitted on the grounds that they lack evidential value and would be tantamount to stealing a match against an opponent.” Per AKINBAMI, J.C.A. (Pp. 19-20, paras. B-A) .

The court went further to posit that:

“…The general principle is that the document made by a party to a litigation or person otherwise interested when proceedings are pending or is anticipated is not admissible. The disqualifying interest is a personal not merely interest in an official capacity… where however the interest of the maker is purely official or as a servant without a direct interest of a personal nature, there are decided cases that the document is not thereby excluded.” Per AKINBAMI, J.C.A. (Pp. 21-22, paras. F-B)

Two things must be brought to the fore in view of the provision and the foregoing authorities. First is that the pendency of proceeding is especially when pleadings have been concluded so as not to steal a match and secondly, the interest is reckoned as personal interest and not merely official.

In view of the foregoing, I have taken a careful look at the said Exhibit C11, C12 and C13 to ascertain first, at what stage of the pendency of the suit were the documents made and secondly, whether the interest of the maker is personal or official.

Upon the evaluation I find that exhibits C11 and C13 are dated 21^st May, 2018 while Exhibit C12 is dated the 30^th of May, 2018 in response to Exhibit C11. This means that the documents were made after this suit was instituted having initiated the suit on the 15^th of March, 2018. However, I find that pleadings had not been closed as the documents were made before commencement of trail. The said exhibits were pleaded in paragraphs 21 and 22 of the Claimant’s reply filed on the 17^th of July 2018 in response to the Statement of defence filed by the defendant on the 26^th of March, 2018. The implication of this is that pleadings had not yet closed at the time the documents were prepared and the documents were largely made in order to concretize the response to the statement of defence since they were pleaded in the reply after they had been made.

In relation to the nature of interest of the makers, I find that the maker of Exhibit C11 and C13 (lettersin request to confirm treatment of Claimant), is one O.B. Njogo Esq. of EmekaAchunulo& Co, who wrote as solicitor to the Client in his official capacity, while Exhibit C13 (a letter in response to Exhibit C11) was written by M.Z. Yara for the Director of Military Hospital in his official capacity.

In view of the foregoing findings, the makers of Exhibits C11,12 and 13 cannot be said to have any personal interest in the instant suit and I so hold.

Consequently, I do not find the said exhibits to be within the contemplation of documents that are to be excluded in line with section 83 (3) of the Evidence Act 2011 and the said documents are therefore admitted in evidence.

With regards to Exhibit D4, the document was admitted under protest based on the contention of Counsel to the Claimant that same is not tendered by the maker while counsel to the Defendant contended that the document does not come under the section of the Evidence Act as it was addressed to the Defendant.

In resolving the above contention, I have taken a careful consideration of section 83(1) of the Evidence Act which provides thus:

“In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:

If the maker of the statement either-

(i) had personal knowledge of the matters dealt with by the statement; or

(ii) where the document in question is or forms part of a record purporting to be a continuous record made the statement (in so far as the matters dealt with by it are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have personal knowledge of those matters; and

if the maker of the statement is called as a witness in the proceeding:

Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.

In view of the foregoing provision, the maker of the said document is Dr. B.F. Ogbonda who was not called as witness in this case. Counsel to the defendant contended that the document is a received copy as it was addressed to the Defendant. A look at the document shows that it is not the original document as contemplated by section 83 (1). However, I must state that the document does not bear an acknowledgement either, to show that same was received but same is pleaded and relevant hence, the said exhibit is admitted in evidence while the court is mindful of the probative value to be attached to same. See 7UP BOTTLING COMPANY PLC V. EMMANUEL (2013) LPELR-21104(CA).

I then turn to the sole issue for determination, the resolution of which has direct consequence on the claims of the Claimant which are hinged on two major areas of dispute. The first being the contention surrounding whether or not the defendant was negligent in the treatment of the gunshot injury sustained by the Claimant and secondly, the purported termination of the Claimant’s employment with the Defendant.

For the sake of clarity, reliefs (a), (b) and (g) are connected to the former while reliefs (c), (d), (e) and(f) are connected to the latter while relief (h) is connected to both being cost of action.

I shall take the first dispute relating to negligence to ascertain whether same is proved or disproved by both parties. I must state from the onset that the negligence in question is anchored on breach of duty of care in view of the facts before this court to the effect that the Claimant has alleged that he suffered an injury from gunshot in the course of his employment and his employer has failed to take responsibility for his medical treatment while the employer is alleging that the employee contributed to his injury for failing to follow laid down procedure in leaving the location of work and abandoning medical treatment.

The succinct facts surrounding this dispute is that the Claimant was an employee of the Defendant, he did not tender employment letter because he alleged that the letter was merely given to him for sighting and the retrieved. The employer alleged that the fact is not true as the Claimant was handed his employment letter. That notwithstanding, it is not in dispute that the Claimant was employed by the Defendant as the Defendant averred that the Claimant was an employee of the Defendant till the 25^th of May, 2015. In this wise, I reckon that facts admitted need no proof. See CHUKWU & ORS v. AKPELU (2013) LPELR-21864(SC) and Narinder Trust Ltd. v. N.I.C.M.B. Ltd. (2001) FWLR 1546 at 1558.

In addition, I reckon that the Claimant tendered exhibit C3 as his staff I.D. Card issued to him by the Defendant. Hence, the fact that he is an employee of the Defendant is to a large extent, established.

Going further, in the course of the employment, the Claimant was to be relieved on 6^th of August 2013 from duty by another employee who did not get to the location until 7^th of August, 2013 while the Claimant left the location in the morning of the 8^th of August, 2013 when the incidence of gunshots by sea pirates occurred. The Claimant tendered exhibit C4, a police report which bears the date 8/8/2013 and the time 07:45hrs and also bears the name of the Claimant as one of the persons captured in the report as victims. The Defendant did not challenge the fact that the incidence of gunshot happened, nor the fact that the Claimant suffered injury arising from the incidence. But the Defendant contended, in attempt to posit that the claimant suffered the injury while disobeying the defendant’s cardinal practice and policy which ensures safety of staff, that the Claimant left the location without waiting for the person who would relieve him from duty. I must add that the Defendant reckoned that the Claimant was due to clock-out of the location on 6^th of August 2013 as posited by the Claimant. The Defendant also reckoned after investigation that the Claimant did not leave the location until 8^th of August, 2013 as positedby the Claimant but the Defendant added that the Claimant left before Mr. IbinaboMarkson, who was to relieve the Claimant, arrived.

The Claimant,in attempt to prove that he did not breach the defendant’s practice and policy, called Mr. IbinaboMarkson as witness (CW2) and through his witness statement on oath, Mr. IbinaboMarkson who is no longer an employee of the Defendant posited that on the 6^th of August, 2013 when he was to relive the Claimant, there was no flight due to bad weather and had to travel on 7^th of August 2013 after he obtained the transport fare for himself and the Claimant but he got to the location late on the 7^th of August 2013which made the Claimant leave the location in his presence at the early hours of the 8^th of August, 2013.

Upon these facts, the burden is shifted to the Defendant to prove that the Reliever, Mr. IbinaboMarkson did not get to the location before the Claimant left.

It is the general rule that he who asserts must prove. However, in civil cases, the burden shifts as one fact is proved or rebutted. The court in the case of C.O.P. v. Oguntayo (1993) NWLR (Pt.299) 259 held that:

“In civil cases while the burden of proof may initially be on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from plaintiff to defendant and vice versa as the case progresses”. PER OGWUEGBU, J.S.C. (P. 13, Paras. C-D).

The Court of Appeal held in AfrabChem Limited v Pharmacist Owoduenyi(2014)LPELR-23613(CA) that ”it is settled law that it is not every injury suffered by an employee durin the period of his work for the employer that entitles the employee to damages or compensation. It is only the injury suffered out of and in the course of his employment that the employer will be liable for. The phrases ‘’out of and in the course of employment’’ areused conjunctively in the sense that the accident or injury must have occurred not only during the employmentbut must have occurred ‘out of’ and ‘in the course of’ the employment. In effect, the employment must be the cause of the injury and the injury must have occurred in relation to the employment or incidental to the employment. There must be some causal relationship between the employment and the injury. Thus, an injury must arise out of and in the course of employment. Any injury sustained by an employee which occurs by a mere coincidence to the currency of the employment cannot be an injury arising out of and in the course of employment’’.

The germane question is whether the injury suffered by the claimant arose out of and in the course of his work, for which the defendant would be responsible and liable to pay compensation.

The cumulative effect of the testimony of Mr. IbinaboMarkson and the failure of the Defendant to present any cogent evidence to establish a breach of the Defendant’s Policy in the Claimant’s clocking-out of the Defendant’s work location or a breach of the company’s safety policy on sea travel, It is my considered view in the circumstances that the injury sustained by the Claimant was in the course of the Defendant’s employment and I so hold.

Having said that, the next question is did the Defendant become negligent towards the Claimant upon sustaining injury in the course of employment with the Defendant?

In answering the question, the Claimant posited that he was taken to Braithwaite Memorial Specialist Hospital from the scene of the gunshot but the Defendant later took him to Alma Hospital where he was for 7 days before being attended to by Orthopedic surgeon who confirmed that there was no bullet in the bone before stitching. He contended that the 7 days waiting period resulted in his having foot drop and deadening of the muscles. He was asked to return after two months to the Alma Hospital which he did before he was then referred to Military Hospital. Upon getting to military Hospital the Defendant refused to assume responsibility for the bill for obtaining the hospital card and deposit for commencement of treatment. Claimant tendered exhibit C5 which is the referral letter written by Dr. B.F. Ogbonda, the Medical Director of Alma Hospital addressed to the Physiotherapy Department of Military Hospital, Port Harcourt.

Upon refusal and failure of the Defendant, through its general manager to undertake payment at Military Hospital after the Claimant informed the Defendant, he resorted to traditional way of treatment to assuage pains but he now has permanent disability/disfigurement. Claimant tendered Exhibit C6 to exhibit his state.

The Claimant also tendered Exhibits C11, a letter written by Lawyers on behalf of the Claimant to Braithwaite hospital to ascertain the file opened for the Claimant, the treatment received, bills paid, and necessary document obtained before transfer and then Exhibit C13 written to Military Hospital to ascertain whether a file was opened for the Claimant, the treatment he received and payment for his bills.

Claimant also tendered Exhibit C12, a letter written by Military hospital in response to the Claimant’s Lawyers, of which paragraph 2 reads that:

“I am directed to acknowledge the receipt of the above quoted reference and to inform you that after thorough checking of our records, Mr. Emmanuel Njoku hasn’t opened any file or received any treatment in our facility”.

The particulars of negligence proffered by the Claimant is to the effect that had the Defendant not move him from Braithwaite Memorial Specialist Hospital, he would have received professional treatment as the Defendant’s retained hospital lack competence to provide same; the Defendant failed to allow the Claimant benefit from physiotherapy as suggested by the Defendant’s Hospital doctor in the referral note to Military Hospital and that the Defendant failed to provide health/life insurance policy that the Claimant would have had access to in such event as his, since the defendant knows the risk involved on the waterways where its location is situated and the Defendants’ Hospital failed to see the urgency and sensitivity associated with the Claimant’s case.

The Defendant on their part,after admitting that they moved the Claimant from Braithwaite Memorial Specialist Hospital to Alma Hospital (Defendant’s retained Hospital), contended that theytook full responsibility for the Claimant’s medical challenge at all three hospitals without any contribution from the claimant as the Defendant pays for all treatment given to its staff including when referral is issued by Alma Hospital and the payment included that of the Claimant.

The Defendant in an attempt to disprove the claimant on the allegation of negligence tendered exhibit D4, a medical report dated the 22^nd of January 2018 addressed to the Defendant by the Medical Director of Alma Hospital (the Defendant’s retained hospital).

The striking thing in the medical report aside from the fact that it was prepared in 2018 for a patient who was last attended to in 2014, includes the fact that the report states that the Claimant was referred to Military Hospital on the 26^th of August 2013 when the referral note (Exhibit C2) is dated 7^th October, 2013. Also, the report stated that the Claimant’s bill at the Military Hospital was settled by Alma Hospital and the document concluded stating that the Claimant was adequately cared for while in the care of the hospital.

In view of the forgoing, while the Claimant has established that the Defendant made no payment for his medical charges particularly at the Military hospital which lead him to seek traditional medication, the burden of proof shifted unto the Defendant to prove how the payments it alleged to have made was done.

In that regard, as far as the evidence before this court is concerned, it is clear to all and sundry that there is no receipt of payment from any of the hospitals before the court. Not even the one paid to Alma hospital with which the Defendant has retainership.

To take a further keen look, assuming it is true that Alma Hospital paid for the Claimant’s bill at Military hospital as the medical report suggests, the means by which the Defendant paid the monies back to Alma hospital ought to be brought before the court. The assertion that the Defendant paid for the hospital bill particularly at Military Hospital is further rendered false in view of Exhibit C12 which the Military Hospital used to confirm that the Claimant did not receive any treatment in their facility. In the absence of such treatment, what did the Defendant or Alma hospital pay Military hospital for? The answer is an emphatic nothing.

I find that the only time the Defendant took responsibility for the Claimant’s medical case was during the treatment given to the Claimant at Alma Hospital and that is because the hospital is retained by the Defendant.

In view of the forgoing, I have no hesitation in holding that the Defendant failed to take adequate care of the Claimant upon sustaining gunshot injury in the course of employment with the Defendant.

The next question is whether the failure to take adequate care can be regarded as negligence and whether same is one for which the Defendant should be liable.

Both the Claimant and Defendant failed to present any terms guiding the employment relationship existent between them. Although it must be reckoned that the issue before the court hinges more on tort than contract, a provision for exclusion of liability which has clearly been agreed upon would have perhaps assisted the court in determining whether or not the Defendant should be liable for the lack of care or not. In view of the absence of such terms, resort is had to the common law of tort as it relates to breach of duty of care. It has also been reckoned that such duty exists between employer and employee as it was held in the case of KABO AIR LTD v. MOHAMMED(2014) LPELR-23614(CA)to the effect that:

“It is also settled that the liability of an employer under the duty of care rests upon the law of tort rather than on the law of contract and this is because under the general law of tort, a duty of care is said to arise when two persons are so closely and directly related that the activities of one of them may involve an appreciable risk of injury to the other – Donoghue v. Stevenson (1932) AC 562. Such a close and direct relationship exists between an employer and his employee and thus, under the ordinary principles of tort, the employers owes a duty of care and he is liable for negligence – Baker v. James (1921) 2 KB 674, Mackinnon v. Iberia Shipping Ltd (1954) 2 Lloyds Rep 372 and Davie v. New Merton Board Mills Ltd supra. An employee is, however, at liberty to sue under contract if there are special advantages – Matthews v. Kuwait Bechtel Corporation (1959) 2 All ER 345.Per ABIRU, J.C.A. (Pp. 35-38, paras. G-D).

The principle of duty of care under our common law is without doubt related to that ofnegligence. The court in the case of UBA PLC v. COMRADE CYCLE LTD & ANOR(2013) LPELR-20737(CA) held that:

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

The meaning of duty of care was succinctly put by the court in the case of Oilserv Ltd. v. L.A.I. & CO. (Nig.) Ltd. (2008) 2 NWLR (Part 1083) where the court posited that:

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

In the instant case,the legal neigbours are the Claimant as an employee and the Defendant as the employer. The Defendant who gave the Claimant a job which requires him to sail the sea in order to get to and leave the work station is deemed to be aware that the location of the work is volatile and therefore exposes the Claimant to risk. The Claimant has proven that he suffered gunshot injury in the course of the employment. He also proved that the Defendant failed to cater to his injury adequately by moving him away from a specialist hospital to its retained hospital which was less competent in view of the referral to the Military Hospital and by failing to pay advanced fee at the Military Hospital where the Claimant would have received adequate treatment.

I reckon that the Defendant contended that the Claimant contributed to the injury of permanent disability/disfigurement upon taking up local treatment but it must be borne in mind that the failure of the Defendant to ensure the Claimant gets treatment at the Military hospital by paying for the patient card and advancement for treatment is what made the Claimant take up that option, hence the deterioration that resulted.

I also reckon that the Defendant is alleging that they are not the hospital that treated the Claimant. In this regard, it must be borne in mind that the Claimant has not instituted this suit against any of the Hospitals. His suit is in respect of the contribution of the Defendant, his employer, in view of the failure to take responsibility leading to the eventual deterioration of his leg.The court in KABO AIR LTD v. MOHAMMED (supra).held that:

“The law states that an employee alleging negligence on the part of his employer need not strictly prove that the breach of duty of care was directly responsible for his injuries and that it is sufficient if he shows that it materially contributed to his injuries. This point was succinctly made by the English House of Lords in Bonnington Castings Ltd v. Wardlaw (1956) 1 All ER 615, Nicholson v. Atlas Steel Foundry & Engineering Co. Ltd (1957) 1 All ER 776, and McGhee v. National Coal Board (1972) 3 All ER 1008.Per ABIRU, J.C.A. (Pp. 49-50, paras. A-A).

In the final analysis in regard to negligence, it expedient for this court to state that the essential elements of negligence has been proved by the Claimant. The court in UNITED MICROFINANCE BANK LTD EKPAN v. ADJAKA(2015) LPELR-24541(CA) held that:

“Now, under the tort of negligence, liability can only be established if the plaintiff proves that the defendant owes him a duty of care and that he suffered damage in consequence of the defendant’s failure to take care. A person must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure persons who are so closely and directly affected by his acts or omissions that he ought reasonably to have them in contemplation. See AGBONMAGBE BANK LTD vs. CFAO (1966) ALL NLR 140, DONOGHUE vs. STEVENSON (supra) at 580, ABUSONMWAN vs. MERCANTILE BANK LTD (NO.2) (1987) 3 NWLR (PT 60) 196 and ORHE vs NEPA (1998) LPELR (2758) 1 at 187.

In view of the forgoing, the Claimant has established that the Defendant owes him a legal duty of care being an employee of the Defendant and having suffered gunshot injury in the course of the employment relationship. The claimant also proved that the Defendant failed to take adequate care and he suffered further injury of permanent disability/disfigurement of his leg. As it is not in doubt that the claimant has lost use of the leg in question,the claimant now moves with difficulty with the aid of crutches as I saw physically in court.Disability is therefore established. I hold that the defendant failed to take reasonable care and that resulted in the permanent disability. Consequently, I find the Defendant liable in negligence.

I then turn to the dispute relating to the purported termination of the Claimant’s employment with the Defendant. In this regard, the Claimant posited that he was served with a notice of redundancy by the Defendant on the 25^th of May, 2015 stating that his services with the defendant will not be needed effective from 1^st June, 2015. Claimant posited that there was no adjustment or downsizing in the Defendant Company and neither was the Defendant having any financial challenges. He added that the reason given was simply to surreptitiously disengage the Claimant. The Claimant in view of this wants the Court to reinstate him and order for the payment of salaries.

The Defendant on their part has contended that the employment of the Claimant was terminated due to the need for adjustment of its staff strength as a result of economic difficulty to pay salaries.

In resolving this dispute, I must foremost state that the Defendant before this court is reckoned to be a private company limited by shares and not a statutory body created by law. The identification is important in view of the fact that it is imperative to determine the nature of employment in order to ascertain whether or not the termination of the employment is merely wrongful or null and void and also to determine the implication. The distinction between a termination that is wrongful or null and void was made clear in the case of ESIEVWORE v. NEPA (2002) FWLR (Pt. 124) 398 at 408 where the court held that:

“Employment with statutory backing must be terminated in the way and manner prescribed by the relevant statute and any manner of termination inconsistent therewith is null and void and of no effect. But in other cases governed by only agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed. Any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. the only remedy is a claim for damages for wrongful dismissal… for this wrongful act, he is only liable in damages and nothing more.”

In addition to the above, it must be restated that the order of reinstatement is most applicable where the employment is with statutory flavor and the termination was null and void.

Having said that, the burden is on the Claimant to prove that the termination of his employment was wrongful.The court in AJI v. CHAD BASIN DEVELOPMENT AUTHORITY & ANOR (2015) LPELR-24562(SC) held that:

“For emphasis, the Plaintiff/Appellant is enjoined by law when he complains that his employment has been wrongfully terminated. He has the onus of placing before the Court the terms of contract of employment and then go on to prove in what way the said terms were breached by the employer”.

The effect of the above is that a Claimant who alleges unlawful dismissal from employment must plead and prove the following facts to succeed in his claim:

That he or she is an employee of the Defendant,
Place before the court the terms of his or her employment and the terms and conditions of the employment,

iii. State who can appoint and who can remove him,

In what circumstances his or her employment can be determined, and
In what manner the said terms of the employment were breached by the Defendant.

See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 42; IMASUEN vs. UNIVERSITY OF BENIN (2011) All FWLR (Pt.572) 1791 at 1809. See also. OKOH & ORS.v. UNIVERSITY OF LAGOS & ANOR. (2010) LPELR-4719(CA) and WAEC &Ors v. Mrs. NkoyoEdet (2011) LPELR -5098 (CA).

In attempt to discharge the burden placed on the Claimant, the Claimant had earlier proved that he is an employee of the Defendant but he failed to put before the court any terms of the employment. That is perhaps in view of the lack of possession of the letter of employment which he alleged had been retrieved from him by the Defendant. The only evidence brought before the court by the Claimant and the Defendant is Exhibit C7/D2 which is dated the 25^th of May, 2015 and headed as Notice of Redundancy of Employment.

The saidnotice reads:

Dear Sir,

Notice of redundancy of employment.

This is to bring to your notice that due to some adjustment in our opearation at Ekulama 2 NewCross Exploration and Production Limited, The Company has deemed it fit to reduce the staff Strength in order to meet up with our operational cost. We regret any effect this might cause you and your family.

Your services with the Company will therefore not be needed effective from the 1^st June 2015.

You are required to surrender all company property in your possession to the Company Head Office, Port Harcourt.

Below are your entitlement and payment.

Basic Salary: N41,745.53/12 x 2 = N6,957.50

One Month in lieu of Notice = N41,745.53

Total due: = N48,703.03

(forty Eight Thousand Seven Hundred & Three naira Three Kobo only)

Yours Faithfully,

Signed .

For S.J. Abed Ge.Ent.

This confirms that I Emmanuel Njoku have collected all my entitlement from the company and hereby declare that I have no further claims.

Signature……………………………………..

Date……………………………………………….

Arising from the above notice, counsel to the Claimant contended that the Labour Act has made clear provisions on redundancy which the company did not comply with while counsel to the Defendant posited that one month salary in lieu of notice is reasonable period for the Claimant.

In view of the forgoing, I have taken a careful look at the provision of section 20 of the Labour Act and the question that arises is whether Exhibit C7 is intended to terminate the employment of the Claimant or not.

While paragraph 1 is in accord with the definition of redundancy as provided in section 20(3) of the Labour Act, the rest of the paragraph does not indicate a compliance with the procedure stated in section 20 (1) and (2). That notwithstanding, I must state that the implication of failure to follow the procedure as laid down in the Act is not stated in the Act and that would only lead to rendering the redundancy proclaimed by the Defendant as unlawful especially in view of the fact that the employment is not one with statutory flavor.

Meanwhile, paragraph 2 of the said exhibit C7 clearly informs the Claimant that his services are no longer required and in that light brings his employment relationship with the Defendant to an end. Being a master servant relationship, the court cannot foist a willing employee on an unwilling employer. The only thing the court can do is ask if the termination is as agreed to be brought to an end by both parties.

In answering the question, I have stated that theterms of employment was not placed before the court but the said Exhibit C7 implies that the Claimant is entitled to either a month notice or a month salary in lieu of notice. He was offered the payment of the one month salary in lieu of notice but he has not been paid same as alleged. Exhibit C7 also requires the Claimant to sign and date the notice in acknowledgement of the collection of his entitlement from the Defendant but the Claimant did not sign.

For want of emphasis, the court in the case of Gabriel Ativie v KabelmetalNig Ltd(2008)LPELR-591(SC) stated that ‘’an employer is not bound to give any reason for terminating the appointment of a servant where such employment is not one with statutory flavour’’ per Akintan JSC

Consequently, in the absence of any express term requiring more than what the Defendant has offered, there is no basis upon which the court can declare the termination of the Claimant’s employment as wrongful particularly in view of having offered to pay salary in lieu of notice.

Having addressed the two central disputes before this court, I proceed to consider the reliefs sought by the Claimant to ascertain which he is entitled to in view if the resolved dispute.

Reliefs(a) and (b) are declaratory reliefs predicated on the Claimant proving that the Defendant was negligent in the treatment of his gunshot injury. This court has found that the Claimant indeed proved that the Defendant owes him a duty of care and same was breached which led to the permanent disability/disfigurement of the Claimant’s leg.

Consequently, the Claimant is entitled to reliefs (a) and (b) to the effect that this court makes:

(a) A DECLARATION that the Defendant was negligent in the treatment of the Claimant’s gunshot injury sustained in the course of employment with the defendant and same resulted to Claimant’s permanent disability.

(b) A DECLARATION that the Claimant deserve to be adequately compensated by the Defendant as the injury of permanent disability was sustained in the course of Claimant’s employment with the Defendant.

Relief (g) which is an alternative relief is nevertheless dependent on the success of relief (a) and (b) which has been granted to a specific extent. The said relief (g) is for:

“The sum of N100,000,000.00 (One Hundred Million Naira only) as general, aggravated and exemplary damages for disability of permanent nature, continuous deterioration of his leg and pains as a result of improper treatment, loss of future work opportunities”.

In consideration of the relief, I reckon that upon the declaration that the Defendant was negligent in the treatment of the Claimant’s injury, the remedy available to the Claimant is damages.

In Kenneth Ighosewe v Delta steel Company Ltd (2007)LPELR-8577(CA) the court of appeal held that ”it is tritethat once a plaintiff has successfully shown that he suffered personal injury as a result of a breach of duty of care owed him by the defendant,the court will proceed to assess the damages claimed on available facts. Damages in this sense are of two main types namely,first special damages which cover pecuniary loss,which has to be specially pleaded and proved& it consists of out of pocket expenses &loss of earnings incurred. Secondly, general damages which the law implies& which is not specially pleaded but sometimes claimed under separate heads in relation to the physical injury which include compensation for pain, suffering personally sustained by the plaintiff. The proper thing in awarding damages in personal injury cases is to make awards for pain & suffering & also for the loss of the amenities of life under separate heads of damages but both falling under general damages’’.

The damages is general in nature as it is intended to put the Claimant back to the state he was before the negligent act.

Furthermore, the court in Ya’u v. Dikwa (2001) 8 NWLR (Pt.714)127provided the condition for the grant of damages in case of negligence when it held that:

“…in a claim in negligence, the plaintiff is entitled to special and general damages, where negligence is proved and items of special damages are fully pleaded with particulars and are strictly proved. In the case of general damages, evidence identifying the damage will suffice, not the quantum which is in the discretion of the court. See Elochin (Nig) Ltd v. Mbadiwe (1986) NWLR (Pt.14) 47; Sommer v. FHA (1992) 1 NWLR (Pt.219) 548; Obmiami Brick & Stones (Nig) Lid v. ACB (1992) NWLR (Pt.229) 260 at 312.”Per NZEAKO, J.C.A. (P. 55, paras. B-D).

The question is whether the Claimant in view of the circumstances of this case is entitled to aggravated and exemplary damages as incorporated into the relief sought.

The court in the case of Odiba v. Muemue (1999) 10 NWLR (Pt.622)174stated with regards to aggravated damages that:

“Aggravated damages may be awarded where the damages are at large and the conduct of the defendant was such as to injure the plaintiff’s proper feeling of dignity and pride.” PER OGWUEGBU J.S.C (P. 24, para. G).

While in the case of Obinwa v. C.O.P. (2007) 11 N.W.L.R. (Pt. 1045) 411 at 426-427, paras. G-C (CA) the court posited with regards to exemplary damages that:

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

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

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

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

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

In view of the forgoing authorities, I have reviewed the evidence before this court and find that there is no special damages which has been pleaded with exactitude and there is no basis for the grant of either aggravated or exemplary damages and I so hold.

Consequently, the Claimant is only entitled to general damages for the negligent act of the defendant and relief (g) is therefore granted to the extent that this court orders the payment of:

“The sum of N8,000,000.00 (Eight Million Naira only) as general damages forthe negligent act of the Defendant leading to disability of permanent nature, continuous deterioration of the leg and pains as a result of improper treatment of the Claimant.”

I then turn to reliefs(c),(d),(e) which reads:

(c) A DECLARATION that the termination of Claimant from the employment of the Defendant is wrongful, unjust, null and void and same employment still subsisting.

With regards to these reliefs, I find it apposite to restate the position of the law as it relates to the nature of employment of the Claimant. The court in the case of ADEWUNMI v. NIGERIAN EAGLE FLOUR MILLS(2014) LPELR-22557(CA) held that:

“the law is now settled that the court cannot impose a servant on an unwilling master and the court is without power to grant the plaintiff in a master and servant relationship, a declaration that his employment with the defendant was still subsisting after his dismissal” Per DONGBAN-MENSEM, J.C.A. (Pp. 29-30, paras. G-A).

In view of the resolution of the dispute relating to the termination of the employment of the Claimant to the effect that there is no basis upon which this court can declare the said termination as wrongful for failure of the Claimant to prove same and also in view of the fact that the employment of the Claimant is one of master-servant relationship entitling the Defendant to terminate the employment with or without reason and in view of the position of the law that in such relationship, one cannot foist a willing servant on an unwilling master, this court upholds the submission of the learned counsel for the defence on this score and hereby declines the invitation to make a declaration that the termination of the Claimant’s employment is wrongful, unjust, null and void or declare the employment as subsisting. The court in the circumstance also refuses to make an order of re-instatement.

For the sake of clarity, reliefs (c), (d), and (e)are refused.

Relief (f) is an alternative to reliefs (c), (d) and (e) for an order compelling the defendant to pay the claimant the sum of N20, 000,000.00 (Twenty Million Naira) as damages for wrongfully determination of the Claimants contract of employment with the Defendant and incalculable hardship in the circumstances.

With regards to this relief, I reckon that the Claimant averred that the Defendant has not paid his entitlement and by this relief the Claimant puts up N20, 000,000.00 (Twenty Million Naira) as damages for wrongful determination of his employment.

What then is the position of the law with regards to damages for wrongful termination of employment nevertheless.

“It has been settled in a long line of authorities that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of notice and other legitimate entitlements due to him at the time the employment was brought to an end. He gets no more” Per Tabai JSC in Gabriel Ativie v Kabelmetal Nig. Ltd. (2008) LPELR-591 (SC). See also NITEL &Anor v. Mr. L.D. Akwa (2005) LPELR -5971 (CA).

In view of the forgoing authorities and in consideration of the computation in Exhibit C7/D2 that reflects the Claimants salary in lieu of notice, which although have not been paid, the Claimant is refused relief (f). However, this court finds it necessary to make an incidental order that the entitlement computed in the said Exhibit C7/D2 be paid to the Claimant within 30 days of the delivery of this judgment along with any order sum ordered to be paid by this Court.

With regards to relief (h) which is for cost of this action at N500, 000.O0 (Five Hundred Thousand Naira) only, I reckon that the court cautioned in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) that:

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

The Claimant has not tendered any evidence before this court to ascertain the cost he bore and to perhaps trigger the discretion of the court in the grant of the said relief.

Consequently, I find it difficult to exercise discretion in favour of the Claimant in granting the said relief as to payment of the cost in respect of this suit, each party should bear their respective cost.

In the final analysis, the sole issue formulated is resolved partly in favour and partly against the Claimant upon the success of some of the claims and failure of others.

The case of the Claimant is meritorious to the extent to which reliefs (a), (b) and (g) have been granted and fails to the extent to which other reliefs have failed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE