Mr. Omunna Ekem -VS- National Salt Company of Nigeria Plc

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 11^TH DECEMBER, 2018 SUIT NO: NICN/PHC/105/2014

BETWEEN:

OMUNNA EKEM ——————————— CLAIMANT

AND

NATIONAL SALT COMPANY OF NIGERIA PLC ——– DEFENDANT

REPRESENTATION:

D. Money for the Claimant

Paul O. Ebiala for the Defendant

JUDGMENT

The Claimant commenced this suit against the Defendant by way of Complaint and Statement of Facts dated and filed on 2^nd May, 2014. The Claimant’s originating process was however amended vide an Amended Complaint and Statement of Facts dated 10^th March, 2016 and filed on 11^th March, 2016 wherein the Claimant claims the following reliefs against the Defendant:

Five Hundred Million Naira (N500, 000, 000. 00) being general damages for the loss of amenities of life due to the amputation of the Claimant’s left arm as a result of the Defendant’s negligence.

Fifty Million Naira (N50, 000.00(sic)) being general damages for the pains and sufferings caused to the Claimant as a result of the Defendant’s negligence.

iii. Fifty Million Naira (N50,000.00(sic)) being general damages for the prospective loss of future earnings by the Claimant as result of the Defendant’s negligence.

AN ORDER DIRECTING the Defendant to redeploy the Claimant to a risk free department and place him on commensurate salary remuneration and allowances with Defendants workers of his category.

AN ORDER OF INJUNCTION RESTRAINING the Defendant from sacking, terminating, dismissing or declaring the Claimant redundant under any guise except and until such severance is discussed or negotiated and the Claimant’s future survival considered and adequately provided or catered for by the Defendant or whosoever that may legally take over the Defendant.

Upon service of the Originating Processes on the Defendant, the Defendant filed Memorandum of Appearance, Statement of Defence, List of Witness, Witness Statement on Oath and List of Documents all dated 11^th May, 2015 and filed on the 25^th of May, 2015. In line with the Rules of court, when the Defendant was served with the Claimant’s Amended Originating Processes, the Defendant filed its Amended Statement of Defence together with Written Deposition on Oath, List of Witness and List of Documents all dated 12^th June, 2016 but filed on 14^th June, 2016. The Defendant was however granted leave of court to substitute its witness Adebowale Shittu with Ekaete Ekanem Bassey on the 19^th of April, 2018.

The matter then proceeded to trial wherein the Claimant testified for himself as CW, adopted his witness deposition on oath made on 11^th of March, 2016, and tendered a total of eight (8) documents which were admitted and marked as exhibits CWA, CWB1-2, CWC1-2, CWD, CWE, CWF, CWG1-3, and CWH1-2. The witness was cross-examined by the defence counsel without being re-examined by the Claimant’s counsel. The Claimant then closed his case on the 7^th of March, 2018, and the matter was adjourned for the Defendant to open its Defence.

The Defendant on the other hand called one witness Mrs. Ekaete Ekanem Bassey (an Admin officer, Human Relations/Administration Department of the defendant) who testified as DW. She adopted her Witness Statement on Oath made on 11^th June, 2016, and tendered a total of 7 documents which were admitted and marked as Exhibits DW1, DW2, DW3, DW4, DW5, DW6, and DW7. The witness was then cross-examined by the learned Claimant’s counsel without being re-examined by the learned Defendant’s counsel. The Defendant closed its case on 31^st of May, 2018.

At the close of the defendant’s case, parties were ordered to file their final written addresses and the case was adjourned to 19^th July, 2018 for adoption of Final Written Addresses.

When the matter came up for hearing on the 19^th July, 2018, the Defendant’s Final Written Address which was filed out of time was regularized after which the case was again adjourned to 10^th October, 2018 for adoption of Final Written Addresses.

On the 10^th of October, 2018 parties could still not adopt their Final Written Addresses because the Claimant’s Final Written Address had not been served on the Defendant. The matter was consequently adjourned to 29^th October, 2018 for adoption of Final Written Addresses.

On the 29^th of October, 2018, parties adopted their Final Written Addresses respectively. The Defendant’s Final Written Address was dated 10^th July, 2018 and filed on 16^th July 2018 but deemed to have been properly filed and served on the 19^th of July, 2018. The Claimant’s Final Written Address was dated and filed on 20^th September, 2018. The Defendant filed a Reply on Points of Law dated 15^th October, 2018, filed on 26^th October, 2018, but deemed to have been properly filed and served on 29^th October, 2018.

With the adoption of the parties’ Final Written Addresses, the suit was adjourned for judgment.

THE CASE OF THE CLAIMANT:

It is the case of the Claimant that, he was employed by the Defendant on the 17^th of September, 2008 as a welder without an appointment letter but with the promise that his appointment would be confirmed after six (6) months of service to the Defendant. That apart from his duty of welding broken or rusted metals, himself and his colleagues would often be deployed to do work of filter mechanic since the Defendant did not have filter mechanics in its employment.

That on the 1^st of November, 2009 at about 9 o’clock in the night himself and his colleagues were to do the work of the filter mechanic, and while he was cleaning one of the machines known as Line Zero One, three of his other colleagues were cleaning another machine called Haver and Boeker. That the Line Zero One machine was expected to be switched off always when being cleaned because of the Hammer Mill Beater in the machine which rotates swiftly when the machine is switched on to beat the raw material into salt.

According to the Claimant, even though the said Line Zero One machine was switched off as usual when he started the cleaning exercise, one Ahmed Abdulkareem after finishing cleaning his own machine wanted to switch on his own machine that he had finished cleaning but inadvertently switched on the Line Zero One machine while the Claimant’s hand was still inside the machine undergoing the cleaning exercise. The machine consequently drew in the Claimant’s left hand and grinded it beyond redemption. According to the Claimant he was 24 years old when the incident took place on the 1^st of November, 2009.

It was the further pleading of the Claimant that, himself and his colleagues shouted for help and after a fairly long time he was rescued and taken to the Defendant’s Hospital (Life Care Medical Centre) but the Hospital could not handle his situation hence he was referred to Teme Hospital, Mile One Diobu, Port Harcourt for proper medical attention. That at the Teme Hospital he was informed that the only option for his survival was the amputation of his left hand.

The Claimant, who asserted that the accident and the resultant injuries that he suffered on the 1^st of November, 2009 in the course of working for the Defendant were due entirely to the negligence of the Defendant and their servants, pleaded the following as the particulars of negligence:

The Defendant failed to provide the proper tools or procedure for the cleaning of the Line Zero One Machine in the manner that would not expose an innocent worker like the Claimant to the accident that he suffered.
The Defendant failed to provide the Claimant with the proper safety equipment that would have prevented or minimized the Claimant’s injuries from the accident.

iii. The Defendant failed in its duty to provide proper and adequate job training for its workmen, who would if adequately trained, have known how to switch off the Line Zero One machine instead of joining the Claimant in shouting for help during emergency.

The Defendant also failed in its duty to provide the Claimant with safe and competent fellow workmen and supervisors who would have been careful and diligent enough not to switch on the Line Zero One machine while it is being cleaned.

According to the Claimant, the Defendant paid all the medical bills for the surgery and treatment at the Teme Hospital and assured him and his family that his appointment would be confirmed, he would be redeployed to the duty of time keeper where there is minimal risk, send him to school on scholarship and stand by him through his trying time. That the Defendant put through its promise by confirming the Claimant’s appointment as an Assistant Technician and also bought an artificial arm for the Claimant.

That despite repeated demands by his family and elders of his community for the Defendant to pay him compensation for the permanent handicap and disability suffered while working for the Defendant, the Defendant has not paid him any money or compensation. That he was also being marginalized in the area of salary payment as his colleagues of the same category in the same Department receive better wages than himself.

That despite letters written by himself and his solicitors to the Defendant demanding for compensation and proper placement at work, the Defendant has not taken any step to ameliorate his situation thereby causing him to suffer serious permanent damage as a direct result of the Defendant’s negligence. The particulars of damage are listed as follows:

The Claimant who was more comfortable in using his left hand from childhood has lost his left hand and is now having great difficulty adapting himself to the use of the right arm as his only arm. The Claimant had used his left hand to clean the Line Zero One machine because he was more comfortable using his left arm and that was why he was injured on that arm.
As a result of the amputation of his left arm, the Claimant now suffers ‘locomotive imbalance’ and on a daily basis has become the target of unsolicited stares and comment from the public much to his embarrassment since the Claimant is unable to use the locally made artificial arm procured for him by the Defendant as the locally made artificial arm increases the pains of the Claimant any time the Claimant attempts to use it.

iii. The Claimant now has more demands and financial challenges as he pays people to do for him things he ordinary could do such as fetching waters, compulsory community age grade sanitation exercise, washing his cloths.

The Claimant who was 24 years old at the time of the accident was just at the beginning of his working age and would in normal circumstances have been gainfully employed with increasingly better endowments until the normal retirement age of 65 years.
The Claimant has also suffered a loss of amenity and quality life as a direct result of the accident. He was unmarried before the accident and his prospect of getting married and having children is now very limited. The Claimant was a good footballer and swimmer which activities he enjoyed as a hobby but can no longer enjoy as a result of his handicap.
The Claimant has gone through untold pain and suffering as a result of the accident. It was excruciatingly painful for him when the Line Zero One machine were(sic) crushing through his flesh and bones.

vii. The Claimant was also in great pains throughout the periods it took the wounds to heal and during the major surgery and was often made to take pain killers to cope with the pains, up till date the Claimant still feels periodically some painful sensation on the amputated stump of his left arm and now depend on drugs on a regular basis.

DEFENDANT’S CASE:

According the Defendant, the Claimant who was employed as a casual staff could be assigned to any bit of job as the need arose, and that, as a casual staff the Claimant was not entitled to employment letter or a confirmation of appointment.

That after the incident that led to this suit occurred, the Defendant provided for the Claimant immediate medical attention that arrested complications. That contrary to the Claimant’s assertions, the Defendant provided the tools and procedure for the cleaning of the Line Zero One machine which was available for use on the day of the accident and are still available for use by operators and cleaners of the machine. The Defendant also claimed to have provided safety and protective devices to its entire staff (casual or permanent) which were available for the Claimant’s usage if he had wanted to use them. Also that, at the beginning of the employment of every technical staff and periodically, he/she is adequately trained on the use, operations and risks involved in the improper use and/or handling of the Line Zero One machine and all other similar machines or equipments.

That by the standing order of the Defendant, no machine is switched on without first ensuring that no work is going on, and that there must be at least two (2) maintenance staff assigned to the cleaning of machines to avoid the error that occurred on the day of the accident.

The Defendant stated further that, in line with its policy on casual staff, it confirmed the appointment of the Claimant, transferred him to a risk-free bit of duty and acquired an artificial arm for him in keeping with the Defendant’s promise to take measures to alleviate the suffering of the Claimant. That the Claimant was also duly compensated with permanent employment and enhanced monthly salaries/wages and being a casual staff he was not entitled to any compensation more than what was done to him to cushion the effects of his situation. That contrary to the Claimant’s assertions, the claimant is placed on the same salary scale as his counterparts as the Defendant does not operate different payment schedules for its workers individually. That the Claimant was granted salary increment with effect from 1^st January, 2011, 1^st July, 2012, promoted with effect from 1^st December, 2012, and also granted salary increment with effect from 1^st January, 2014.

According to the Defendant, since it adequately trained its technical and maintenance staff on safety measures and provided them with safety gadgets and equipment, it has discharged its duties towards all the staff including the Claimant. That the Defendant is therefore not negligent in the circumstance of this case.

It was also pleaded by the Defendant that, the Defendant went out of its way to treat the Claimant specially because of his unfortunate plight by confirming his appointment as a permanent staff, rewarded him with accelerated promotion and gave him salary increments in quick successions with the assurance that he will continue to grow in the service of the Defendant as he keeps putting in his best at his duty post.

According to the Defendant, the Claimant is not entitled to any of the claims because the suit is not brought under any law.

DEFENDANT’S SUBMISSIONS.

The Defendant distilled two (2) issues for determination, to wit:

Whether in the light of the express provisions of section 12 of the Employees’ Compensation Act, 2010 and the Procedures laid down in the Act for application for compensation, this Honourable Court can rightly assume original jurisdiction to entertain this suit?

Assuming without conceding that this Honurable Court is clothed with the requisite original jurisdiction to entertain the suit, whether from the totality of the evidence placed before this Honourable Court, the Claimant has proved his case to entitle him to the reliefs sought?

On issue one (1), the learned counsel to the Defendant, Paul O. Ebiala Esq. reproduced the provisions of sections 6 and 12 of the Employees’ Compensation Act, 2010, and submitted that this court does not have original jurisdiction to entertain this suit without the Claimant first exhausting the procedures laid down in section 6 of the Act with respect to application for compensation.

That since the Defendant is a contributor to the Trust Fund, the Claimant ought to have firstly applied to the Nigeria Social Insurance Trust Fund Management Board on the Board’s prescribed form and where he is not satisfied with any decision of the Board, he is expected to appeal against such decision to the appellate body of the Board in line with section 55 of the Act. That it is where he is not satisfied with the decision of the Board’s appellate body that he can further appeal to this court by virtue of section 55(4) of the Act.

That since the Employees’ Compensation Act, 2010 repealed the Workmen’s Compensation Act, 2004, it is premature for the Claimant to institute this suit in court without firstly exhausting the procedures laid down in section 6 of the Act. That since the Act divests this court of the original jurisdiction to entertain this suit, the court should decline jurisdiction in this matter.

On issue two (2) it was argued that, the injury sustained by the Claimant was not due to the Defendant’s negligence as alleged by the Claimant.

The Defendant cited and relied on the definition of negligence in the case of Okwejiminor V. Gbakeji & Anor (2008) LPELR-2537(SC) where the apex court per Mohammed J.S.C. defined negligence as “— the omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” That going by this definition, for the Defendant to be held liable for negligence in relation to the injuries sustained by the Claimant, it must be shown that it omitted to do what it ought to do, or it did what it ought not to do, thereby resulting in the injuries suffered by the Claimant.

It was further submitted that, the Claimant admitted under cross-examination that, Personal Protective Equipment or Wears were usually issued to the production and maintenance unit and to all staff upon engagement by the Defendant. And that all production and maintenance workers including himself were expected to put on such protective equipment when carrying out their duties. That the Claimant admitted further that at the time the accident occurred production was not on hence all machines in the factory including the Line Zero One machine were switched off at the time he was detailed to clean the machine and were to remain switched off until after the cleaning exercise. That while the Claimant stated in his evidence –in – chief that it was his colleague Ahmed Abdulkareem that inadvertently switched on the Line Zero One Machine while the Claimant’s left hand was still inside the machine cleaning it, he admitted during cross-examination that to the best of his knowledge, the Defendant did not instruct Ahmed Abdulkareem or any person to switch on the machine at that time when cleaning was going on, as it was never the practice that machines are switched on when production is not on.

According to the learned Defendant’s counsel, since negligence must be strictly proved by the party who alleges same, the Claimant has failed to sustain the allegation of negligence leveled against the Defendant. See Oke V. Kaja (2014) 3 NWLR (Pt. 1394) 374 at 395.

It was further submitted that, since the Defendant never stopped the Claimant’s wages till date and took care of all the medical expences including providing an artificial limb for the Claimant, and upgraded the Claimant from casual worker to a permanent worker on an enhanced salary scale and better working condition commensurate with his qualification and job description as shown in exhibits DW1 – DW7, the Claimant has not been able to prove negligence on the part of the Defendant as alleged. The court is therefore urged to decline original jurisdiction to entertain the suit and dismiss the suit with cost in favour of the Defendant.

CLAIMANT’S SUBMISSIONS

The Claimant submitted a sole issue for the determination of this court, to wit:

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

While arguing this lone issue, learned counsel to the Claimant, M. D. Money submitted that, the injury suffered by the Claimant occurred during the course of the discharge of the Claimant’s duties in the course of his employment with the Defendant and as a result of the Defendant’s negligence.

That the Defendant owed the Claimant duty of care which includes the provision of safe working tools and equipment, safe and competent fellow workers and supervisors and a safe system of work. See Hanseatic International Ltd V. Martin Usang (2003) FWLR (Pt. 149) 563. That the Defendant failed to provide the Claimant with safe fellows or servants and safe working tools and equipment in his place of employment leading to the injury he sustained in the course of his employment which was caused by an employee of the Defendant. That if the Defendant had provided the Claimant with properly trained co-workers and right working tools and equipment, the Claimant would not have suffered the injury the subject of this suit.

According to the learned counsel to the Claimant, the law is trite that for a Claimant to prove an action for negligence he must show the following ingredients which according to counsel, the Claimant has established in this suit:

That the Defendant owed the Claimant a duty of care;
That the Defendant failed to exercise that due care;

iii. That the Defendant’s failure caused the Claimant some injury. See Silas Osigwe V. Unipetrol (2005) All FWLR (Pt. 267) 1525; Niger Mills Company Plc V. Engr Sam I. Agube (2008) All FWLR (Pt. 427) 86.

That the Claimant narrated in paragraphs 11 – 17 of his deposition on oath how the accident occurred and that piece of evidence was not contradicted by the Defendant’s witness, hence the Claimant’s account of how the accident happened remained unchallenged and should be believed and acted upon by the court as the standard of proof on the Claimant in the circumstance is minimal. See Kenneth Ighosewe V. Delta Steel Company Limited (2008) All FWLR (Pt. 410) 741 and Alhaji Isiyaku Yakubu V. PHCN (2012) All FWLR (Pt. 616) 529.

Learned counsel drew the court’s attention to the provision of section 1(1)(a) of the Employees’ Compensation Act, 2010, and submitted that an employee who suffered injury or disability is entitled to adequate compensation. That where there is a wrong, there is a remedy, hence the Claimant is entitled to the reliefs being sought in this suit under the Employees’ Compensation Act, 2010.

That the Defendant’s contention that the Claimant is not entitled to any relief because he was a casual worker when the accident happened is untenable because section 73 of the Employees’ Compensation Act, 2010 defined employee to include a person employed by an employer under oral or written contract of employment whether on a continuous, part-time, temporary, apprenticeship or casual basis, and includes a domestic servant who is not a member of the family of the employer including any person employed in the Federal, State or Local Governments and any of the government agencies and in the formal and informal sectors of the economy.

That by section 12(1)(2) of the Employees Compensation Act, 2010, the Defendant is vicariously liable for the negligent act of its employee Mr. Ahmed Abdulkareem who negligently switched on the machine in the course of his duty for the Defendant. That where a servant or employee commits tort in the course of his employment, both the servant and the master are in law equally joint tort feasors, and the Plaintiff is at liberty to select and sue anyone or any member of them. See Mobil Production (Nig) Unlimited V. Monokpo (2001) 18 NWLR (Pt. 744) 212 at 226.

That the Employees Compensation Act, 2010 does not confer powers on the Nigeria Social Insurance Trust Fund Management Board to be the body that will exercise original jurisdiction in an action for compensation under the Act, to the exclusion of any other body or court as there is nothing in sections 6 and 12 of the Act ousting the original jurisdiction of this court.

That section 6 of the Act only applies where an application has firstly been made to the Board for compensation the procedures stipulated in sections 6 and 55(4) must be exhausted and not in the instant case where the Claimant has exercised the option of instituting this action for compensation before the court directly.

That since the employment of the Claimant’s colleagues were also regularized by the Defendant, the regularization of the Claimant’s appointment cannot be compensation for the personal injury suffered by him as the right to compensation under the Employees Compensation Act cannot be waived by virtue of section 13(1)(2) of the Act.

That since there is evidence of the intensity of the pains the Claimant went through as a result of the surgery of the amputation of his arm and that with the loss of the Claimant’s arm he has lost the prospect of better future earnings, the Claimant is entitled to damages for such pains and suffering he went through. See C & C Construction Co. Ltd V. Samuel Tunde Okhai (2003) 18 NWLR (Pt. 851) 79; and UBA Plc V. Mrs. Victoria Funmilayo Ogundokun (2010) All FWLR (Pt. 504) 1521.

Regarding the Defendant’s Reply on Points of Law, it was submitted that, the Defendant who alluded to the Employees Compensation Act cannot now argue that the Act does not apply to this case because they cannot approbate and reprobate at the same time. That since section 72 of Employees Compensation Act is a saving provision which saves everything done under the Workmen’s Compensation Act, the said Employees Compensation Act is applicable to the Claimant’s case even where the cause of action arose before the coming into effect of the said Employees Compensation Act.

The court is therefore being urged to hold that the Claimant has proved his case and enter judgment in favour of the Claimant.

It is pertinent to state that, the Defendant filed a Reply on Points of Law dated 15^th October, 2018, filed on 26^th of October, 2018 but deemed to have been properly filed and served on 29^th of October, 2018.

According to the Defendant since the Claimant’s injury occurred on 1^st November, 2009, it is the law in force as at 1^st November, 2009 (the Workmen Compensation Act Cap. W6, LFN 2004) that applies to this suit as against the Employees’ Compensation Act which came into force on 17^th December, 2010.

That statutes are not to act retrospectively unless a clear intention to that effect is manifested. See Orthopaedic Hospitals Management Board V. Garba & Ors (2002) LPELR-2775(SC); Alao V. Akano (1988) LPELR-410(SC) and Balogun V. FRN (2018) LPELR-44099(CA). That since section 72 of the Employees Compensation Act repealed the Workmen’s Compensation Act without clear intention that it would apply retrospectively to earlier events, the court’s jurisdiction to entertain this suit has been robbed.

It is further submitted that for an employer to be liable for the act of an employee, the employer must have authorized the wrongful act of his employee referring to Afribank Nig Plc V. Adigun & Anor (2008) LPELR-3634(CA); UBA V. Ajagu (1990) 1 NWLR (Pt. 126) 328 at 343, and Awachie V. Chime (1990) 5 NWLR (Pt. 150) 302 at 309. That since the Claimant confirmed under cross-examination that the Defendant did not instruct and/or direct Ahmed Abdulkareem or anybody for that matter to switch on the machine while cleaning was still going on, the Defendant cannot be held liable for the wrongful act of the Claimant’s co-worker, Ahmed Abdulkareem,

COURT’S DECISION

Having carefully considered the pleadings, testimonies, exhibits and arguments/submissions of counsel for the parties, I am of the view that since the 2^ndIssue formulated by the Defendant is identical with the Claimant’s sole Issue, I shall adopt the two (2) Issues formulated by the Defendant in the determination of this suit. These are:

Whether in the light of the express provisions of section 12 of the Employees’ Compensation Act, 2010 and the Procedures laid down in the Act for application for compensation, this Honourable Court can rightly assume original jurisdiction to entertain this suit?

Assuming without conceding that this Honourable Court is clothed with the requisite original jurisdiction to entertain the suit, whether from the totality of the evidence placed before this Honurable Court, the Claimant has proved his case to entitle him to the reliefs sought?

Since Issue one (1) bothers on the challenge to the jurisdiction of this court to hear and determine this suit, it is pertinent that same should be resolved first before the consideration of the merit or otherwise of the Claimant’s case before the court.

It was argued by the learned Defendant’s counsel relying on the provisions of sections 6, 12 and 55(4) of the of the Employees’ Compensation Act that this court lacks the original jurisdiction to hear and determine this suit in view of the original jurisdiction conferred on the Nigeria Social Insurance Trust Fund Management Board. It was also argued by the learned Defendant’s counsel that, since the accident suffered by the Claimant occurred on the 1^st of November, 2009 when the Workmen’s Compensation Act was the extant law as the Employees Compensation Act only came into effect on the 17^th of December, 2010, it is the Workmen’s Compensation Act that is applicable to this suit and being a repealed law, it robs the court of the jurisdiction to entertain this suit.

The law is settled that while the extant law at the time the cause of action arose governs determination of a matter, the law in force at the time of trial based on the cause of action determines the court vested with jurisdiction to entertain the suit. The applicable law to a cause of action is the law in force when the cause of action arose notwithstanding that the law has been repealed or revoked. See Alhaji Muraina Ajani and Ors. V. Mrs. Taiwo (2011) LPELR-3669(CA).

See also the Supreme Court decision in the case of The Governor of Oyo State & 3 Ors. V. Oba Ololade Folayan (1995) LPELR-3179(SC) where the apex court held as follows at pages 59 – 60, paras. F-B:

“Be it noted that a person’s vested right must be determined by the law applicable when the right vested and when the cause of action arose; not the law when the proceedings are instituted or judgment given. See: Amavo Ltd. V. Bendel Textiles Mills Ltd (1991) 8 NWLR (Pt. 207) 37 at 51; Osadebay V. A.G. Bendel State (1991) 1 NWLR (Pt. 169) 525 at 555 and Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 581 and A.G. Fed. V. Sode (1990) 1 NWLR (Pt. 128) 500, 526, 534. It is of no consequence for the determination of that vested right that the law was subsequently repealed.”

I am equally aware of the decision of this court in the case of Bright Chinedu Wodi V. Differential Aluminium and Steel Company and 1 Or. (2014) 42 N.L.L.R. (Part 129) 29 at 97 paras. E-F, where my lord the Hon. Justice B. B. Kanyip held as follows:

“The injury complained of by the claimant occurred on 19^th December, 2009. This means that the cause of action arose on that said date. By Obieweubi v. CBN (2011) 7 NWLR (Pt. 1247) 465 the law for determining a case is the law as at the time the cause of action arose. This means that the law for determining the instant case is the Workmen’s Compensation Act, Cap. W6, LFN, 2004, not, for instance, the Employees Compensation Act.”

A perusal of the Claimant’s pleadings before the court will reveal that by paragraphs 7, 10, 11, 12, 13, 14 and 15 of the Statement of Facts, the accident that resulted to the injury on the Claimant occurred on the 1^st of November, 2009 at about 9 o’clock in the night.

Having identified when the cause of action accrued, it is also crucial to note that the Employees’ Compensation Act came into effect on the 17^th of December, 2010. It is therefore clear that the accident the subject of this suit occurred before the coming into effect of the Employees’ Compensation Act and when the Workmen’s Compensation Act was the extant law.

That being the case, it is my considered view that it is the Workmen’s Compensation Act that should be the applicable law to the Claimant’s case and not the Employees’ Compensation Act, 2010. In any case, the Claimant’s case is for negligence under common law. He is neither suing under the Employees Compensation Act nor the Workmen’s Compensation Act. I so find and hold.

Assuming that the Workmen’s Compensation Act applies to this suit, I do not think its repeal by the Employees’ Compensation Act will in any way extinguish any cause of action that arose before the coming into effect of the Employees’ Compensation Act. See section 72 of the Employees Compensation Act.

The argument that this court has no original jurisdiction over the Claimant’s claim of compensation for injury sustained in the course of employment in view of the provisions of the Employees Compensation Act, 2010, and that original jurisdiction in this suit is vested on the Nigeria Social Insurance Trust Fund Management Board is equally not tenable because the Claimant’s case is for compensation for injury arising from alleged accident suffered while working for the Defendant and for damages.

It is therefore my considered view that the Claimant has only exercised his right to approach the court to seek redress in damages as section 25 of the Workmen’s Compensation Act preserved the right of any injured workman to approach the court and seek redress independent of the Act. See the case of Adesupo Adetona V. Ita Edet and 2 Others (2016) 65 N.L.L.R. (Part 230) 166 at 203 paragraphs F – G where the Court of Appeal held as follows:

“The 1^st respondent brought the suit for compensation not under the said Act as contended. His action sounds in damages under the common law on the negligence of his employer. There can be no doubt that he was so entitled as section 25 had preserved his rights to do so. In most cases, claims at common law raise higher damages than under the Act. In other jurisdictions such as England a workman’s rights at common law is still preserved in a number of Acts including social security Acts of 1975, Factory Act, 1937 and National Insurance (Industrial injuries) Act, 1946.”

See also the decision of this court in the case of Mr. Joseph Ogabo V. PPC Ltd (unreported) Suit No. NICN/YEN/139/2015 delivered on 31^st January, 2018.

In the light of the foregoing therefore, it is the decision of this court that the Claimant’s suit as presently constituted is within the jurisdiction of this court. Issue one (1) is therefore resolved against the Defendant.

Regarding Issue two (2), while the Claimant contends that he has proved his case and is therefore entitled to judgment in this suit, the Defendant’s position is that the Claimant has failed to establish his case before the court to be entitled to the reliefs being sought in this suit.

The case of the Claimant before the court is simply for compensation/damages for injury he sustained while working for the Defendant which resulted in the loss of his left hand thereby causing him permanent disability.

May I state from the onset that, the Claimant is still in the employment of the Defendant even after the loss of his left arm due to the accident he suffered in the course of his employment with the Defendant. The Defendant has therefore in my view, acted commendably by not just giving the Claimant medical treatment after the injury, but equally retained him in its employment and continued to pay him his salaries after being redeployed to a risk free bit of duty.

Having gone through the pleadings and evidence adduced in this suit, it is not in dispute that the Claimant suffered accident which led to the loss of his left arm on the 1^st of November, 2009 while cleaning the Defendant’s machine known as Line Zero One. The Claimant informed this court in examination-in-chief vide his deposition on oath that on the 1^st of November, 2009 at about 9 o’clock in the night while he was cleaning the Defendant’s Line Zero One machine, one of his co-workers Ahmed Abdulkareem who had finished cleaning his own machine wanted to put it on but inadvertently switched on the Claimant’s machine thereby causing him injury which led to the amputation of his left arm. During cross-examination, the Claimant informed the court that it was his colleague Ahmed Abdulkareem that switched on the machine that made him to sustain the injury. That his colleagues at work could not rescue him immediately because they were not given proper and adequate training by the Defendant.

The DW (Mrs. Ekaete Ekanem Bassey) in her evidence-in-chief did not deny the fact that the Claimant had accident while working for the Defendant on the 1^st of November, 2009 when he was assigned to clean machines.

The law is settled that an employer owes his workman/employee a duty of care to take reasonable care to provide not just safe equipment but also a safe system of work and where it is established that the employer was negligent in its duty of care to the employee thereby resulting in injury to the employee, the employer will be held liable in damages. I find support for this legal position in the case of Kabo Air Limited V. Ismail Mohammed (2015) 6 ACELR 71 at 95 where the Court of Appeal held as follows regarding negligence or duty of care in employment cases:

“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 employer 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.”

See also the case of Bright Chinedu Wodi V. Diffrential Aluminium and Steel Company Ltd and 1 Other (supra).

The onus of proof in an action for negligence just as the instant one rests on the Claimant to establish that it was the negligent act or omission of the Defendant that caused the injury to him. This will no doubt involve proving that the Defendant owes the Claimant some duty of care, Failure on the part of the Defendant to observe the standard of care prescribed by the law, and the damage or injury sustained by the Claimant which must be as a result of the breach of duty of care. See R. O. Iyere V. Bendel Feed and Flour Mill Ltd (2008) 7-12 SC 151, and Mr. Benjamin Enyioko V. Leventis Motors (Unreported) Suit No. NICN/OW/49/2014 decision of Hon. Justice O. Y. Anuwe delivered on 3^rd December, 2018.

The Defendant’s sole witness (DW) however informed the court that as part of the policy of the Defendant, safety facilities and cautionary measures are provided for all technical staff and that on the 1^st of November, 2009 when the accident occurred, such facilities were available for collection in the stores.

The witness however did not inform the court whether the Claimant collected those safety facilities and actually wore them. It is not enough for an organization to make available to its workers safety devices. The organization must go further and ensure that those safety devices are worn or used by the workers. The Claimant has however informed the court during cross-examination that even though it was part of his training that as maintenance worker anytime he was to work he was supposed to put on protective wears, he did not have any protective wears. I do not think the Claimant was provided with any protective device on the day the accident occurred. In any case, DW informed the court during cross-examination that even if the Claimant had worn any protective wears such would not have saved the Claimant’s hand in the machine with the machine powered on.

I am of the humble view that the accident that caused injury to the Claimant would have been averted had the Defendant taken reasonable care in securing the said Line Zero One Machine and in properly training its staff particularly Ahmed Abdulkareem who switched on the machine while the Claimant’s hand was still in the machine. The Defendant can therefore not escape liability in negligence for the injury caused to the Claimant in the course of working for the Defendant. I therefore find that the Claimant has established that the Defendant owes him a duty of care and that his injury occurred while working for the Defendant due to the negligent act of the Defendant. The Defendant clearly breached the duty of care it owed the Claimant by not taking adequate measures to ensure the Claimant’s safety while at work. The Defendant is therefore liable to pay damages to the Claimant.

On the reliefs being sought by the Claimant in this suit, it is noted that while relief one (1) is for the sum of Five Hundred Million Naira as general damages for the loss of amenities of life, relief two (2) is for the sum of Fifty Million Naira as general damages for the pains and sufferings caused to the Claimant as a result of Defendant’s negligence, relief (3) is for the sum of fifty million Naira being for general damages for prospective loss of future earnings. Since all these three (3) reliefs relate to general damages, I do not think it is proper to award them separately. In the circumstance, the sum of Thirteen Million Naira only (N13, 000, 000.00) is hereby granted to the Claimant against the Defendant for the incapacitating injury suffered by the Claimant.

Relief four (4) is for an order of court directing the Defendant to redeploy the Claimant to a risk free Department and place him on commensurate salary and allowances with workers of his category. This relief cannot be granted as it is in evidence that the Defendant had already redeployed the Claimant to a risk free bit of duty and his appointment made permanent by the Defendant. Relief four (4) is therefore refused.

Relief five (5) is for an injunction restraining the Defendant from sacking, terminating, dismissing or declaring the Claimant redundant until such severance is discussed and negotiated. This relief is equally refused because the Claimant has not shown the court the threat to his employment (if any).

Issue two (2) is therefore resolved in favour of the Claimant.

In the final result, the Claimant’s case succeeds in part. Accordingly, and for the avoidance of doubt, the court hereby makes the following orders:

General damages of the sum of Thirteen Million Naira only (N13, 000, 000.00) is awarded to the Claimant against the Defendant for the injury sustained by the Claimant due to the negligence of the Defendant.

Cost of Two Hundred Thousand Naira Only (N200, 000.00) is also awarded in favour of the Claimant.

The terms of this judgment shall be complied with within 30 days from today, failing which it shall attract interest at 10% Per annum until it is completely liquidated.

I have earlier commended the Defendant for the examplelary conduct shown since after the accident occurred by not just giving the Claimant medical attention but also retaining the Claimant in its employment. May I therefore urge the Defendant to continue to keep the Claimant so employed.

Judgment is entered accordingly.

Hon. Justice P. I. Hamman

Judge