STEMCO LIMITED v. GABRIEL OKON ESSIEN
(2019)LCN/13134(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of April, 2019
CA/C/259/2017
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
STEMCO LIMITED Appellant(s)
AND
GABRIEL OKON ESSIEN Respondent(s)
RATIO
WHETHER OR NOT NEGLIGENCE IS A CLAIM IN TORT
Negligence is a claim in tort, it was described in the case of OKWEJIMINOR VS. GBAKEJI & ANOR. (2008) LPELR-2537 (SC) as follows: “Alderson B, in the old case of Blyth vs. Birmingham Waterworks Co. (1856) 11 EXCH. 781 at 784, defined negligence as follows: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Seventy eight years thereafter, Lord Wright had this to say in defining negligence: “In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.” See the case of Lochgelly Iron and Coal Co. vs. M’mullan (1934) A.C. 1 at P. 25. The latter definition spells out for us the three basic components of the torts of negligence: [a] duty of care [b] breach of the duty of care [c] damage caused by the breach.” PER NIMPAR, J.C.A.
INGREDIENTS TO ESTABLLISG NEGLIGENCE
The settled ingredients a claimant must establish to succeed in a case of negligence as listed are:
(i) The existence of a duty to take care owed to the complainant by the Appellant
(ii) Failure to attain that standard of care prescribed by the law; and
(iii) Damage suffered by the complainant, which must be connected with the breach of duty to take care. See Makwe VS. Nwukor (2001) FWLR (pt. 62) 1 or 16 (SC). PER NIMPAR, J.C.A.
WHEN DOES A DUTY OF CARE ARISE?
The apex Court had cause to pronounce on when the duty of care arises in a case of negligence and said thus:
“When does a duty of care arise, actually a duty of care has its origin on the concept of foreseeability. This principle was first enunciated in Heaven vs. Pender (1883) 11 QBD 503 at 509, where Brett M.R. said: “Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” In Donoghue vs. Stevenson (1932) AC 562 at 581 in approving the judgment of the Court in Heaven vs. Pender (supra) and Le Lievre vs. Gould (1893) 1 QB 491 at 497. Lord Atkin said: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.? See S.B. N. LTD. VS. DE LLUCH (2004) LPELR-2968 (SC). PER NIMPAR, J.C.A.
WHETHER OR NOT HE WHO ASSERTS MUST PROVE
The law is trite that the burden is on he who pleads or asserts the affirmative, see Section 131 and 132 of the Evidence Act and DAREGO VS. A. G. LEVENTIS (NIG.) LTD & ORS. (2015) LPELR 25009(CA). PER NIMPAR, J.C.A.
WHETHER OR NOT THE EVIDENCE OF AN OFFICER OF COMPANY CAN COME FROM ANY HUMAN AGENT OF THE COMPANY
Ordinarily, the evidence of an officer of a company in respect of the affairs of the company can come from any human agent of the company and it is allowed in law, see SALEH VS. BANK OF THE NORTH LTD. (2006) LPELR-2991(SC) which held: “It is settled law, that a company such as the respondent bank herein is a juristic person and can only act through its agents or servants. Any agent or servant can consequently give evidence to establish any transaction entered into by a juristic personality. Even where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company. Such evidence nonetheless relevant is admissible, will not be discountenanced or rejected as hearsay evidence.” PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal probes the correctness of the judgment of the National Industrial Court sitting in Uyo, Akwa Ibom State delivered on the 30th day of May, 2017 by Hon. Justice Edith Noelita Nnaka Agbakoba wherein the Court below entered judgment in favour of the Respondent and awarded the sum of N25million general damages for injuries suffered by the Respondent while working in the Appellant?s premises and as a result of failure of the Appellant to provide personal protective equipment necessary for the Respondent?s job description.
The Respondent initiated a suit against the Appellant before the Court below wherein he claimed as follows:
i. Five Hundred Million Naira (N500,000,000.00) only being general damages for the injuries suffered by the Claimant caused by the defendant negligence in supplying the Claimant the necessary safety equipment demanded of the Defendant.
ii. One Million Naira (N1,000,000.00) only being cost of this action.
?The Respondent was employed by the Appellant and was given a safety boot, overall, pumping machine and helmet
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only without galvanized rubber gloves, goggles, tyre press and the most important safety gadget being the ream cage protector. The Respondent claimed that because of incessant tyre explosions in the company he demanded for ream cage protector which is used when working on large tyres and is to prevent metal from flying out and causing injury in the event of a tyre explosion but the company neglected to supply him the necessary gadgets.
He claimed that on the 4th February, 2010 while working on a tyre it exploded and the metal ream flew out hitting him on the face and causing him to lose one eye, 4 of his teeth and dislocated his jaw in the process. He then was relieved of his duty without compensation and consequently lost his livelihood thus the claim.
During trial the Respondent testified for himself and called two other witnesses while the Appellant called one witness. After due consideration, the Court below found for the Respondent and awarded the sum of N25Million only. Dissatisfied with the said decision the Appellant filed this appeal.
?
The Appellant?s brief of argument settled by Lady Helen Egube Esq., is dated 7th February, 2018
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and filed on the 9th February, 2018, it formulated 3 issues for determination as follows:
i. Whether or not the Respondent proved his case on the balance of probability to entitle him to his relief sought.
ii. Whether the amount awarded by the trial Court as general damages and cost of this suit was not unreasonable and excessive in the absence of any material or sufficient materials to base its assessment of the damages.
iii. Whether the trial Court did not fail in its duty to properly evaluate the evidence of the Defendant/Appellant.
The Respondent?s brief settled by Ernest Okon Usah Esq., is dated 14th day of June, 2018 and it also formulated 3 issues for determination thus:
a. Was the trial Court not right to have held that the respondent proved his case?
b. Whether as alleged by the Appellant the trial Court made a case for the Respondent?
c. Was the trial Court right to have awarded N25,000,000.00 (Twenty-five Million Naira) to the Respondent in view of the Appellant?s admission?
The two sets of issues are similar in many respects and for completeness of determination of the
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Appellant?s complaint against the judgment, the Court should ordinarily adopt the issues donated by the Appellant, however, the Appellant has two different sets of issues in the Appellant?s brief. The Appellant did not argue the issues it named at the beginning of the brief. The donated issues are:
i. Whether or not the Respondent proved his case on the balance of probability to entitle him to his relief sought.
ii. Whether the amount awarded by the trial Court as general damages and cost of this suit was not unreasonable and excessive in the absence of any material or sufficient materials to base its assessment of the damages.
iii. Whether the trial Court did not fail in its duty to properly evaluate the evidence of the Defendant/ Appellant.
In the body of the brief the three issues argued became these:
a. Whether or not the Respondent proved his case on the balance of probability to entitle it to his reliefs.
b. Whether the or not the trial made a judge made a case for the claimant.
c. Whether or not the award N25million as general damages was not manifestly excessive.
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Definitely they are not the same issues. The issues argued are very close as those formulated by the Respondent. A party is not allowed to be inconsistent. Issues for determination must arise from the grounds of appeal and the grounds are meant to give the Respondent adequate notice of the complaint has against the judgment, see UGO VS. UGO (2017) LPELR- 44809(SC) which described a ground of appeal as follows:
“Grounds of appeal have a fundamental purpose of audi alteram partem. The whole purpose of grounds of appeal is to give notice to the other side of the complaint or case he is going to meet and address at the appellate Court. See NIPC LTD. VS. THOMPSON ORGANISATION (1969) ALL NLR 134. That is why, and to avoid ambush, surprise and embarrassment the appellant caged and circumscribed by his grounds of appeal, is not allowed to go beyond his grounds of appeal to argue or raise issues for the determination of the appeal that are outside or alien to the grounds of appeal.? Per EKO, J.S.C
The Appellant cannot have two different sets of issues for determination in an appeal. It is not only confusing but also shows lack of appreciation of the case of the Appellant. I
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shall therefore adopt the issues donated by the Respondent for determination in this appeal, they are the issues argued by the Appellant.
Proffering arguments in support of the appeal the Appellant?s counsel indicated that it was arguing issues one and three together but still argued them separately. Appellant submitted that the Respondent had the burden of establishing his case before the trial Court and by cogent evidence as held by the apex Court in a plethora of cases. That there is a need to plead and prove negligence, relied on S.B.N. VS. MOTOR PARTS INSTALLATION LIMITED (2005) ALL FWLR (PT.260) (incomplete citation) to submit that the pleadings here fell short of the requirement of law because the Respondent did not plead the duty of care owed him, facts upon which the duty was founded and breach of it. Counsel defined negligence and restated the ingredients to prove as follows:
i. That the defendant owed him the duty of care.
ii. That the defendant had breached the said duty.
iii. There was damage resulting from the breach of the duty owed the claimant.
The Appellant relied on ROYAL LTD. VS. NOCM PLC (2004) VOL. 117
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LRCN 3904 and DIAMOND BANK LTD. VS. PARTNERSHIP INVESTMENT CO. LTD. (incomplete citation).
The Appellant submitted that negligence is a question of facts and therefore each case is determined on its peculiar set of facts, citing HANSEATIC INTERNATIONAL LTD. VS. USANG (2003) FWLR (PT. 149) 1587. The Appellant referred to its evidence that all employee were supplied all that was required of them in the line of duty and the exact duty breached was not identified in the pleadings of the Respondent and the Court made a case for the Respondent when Respondent?s evidence was at variance with pleadings, it urged the Court to find for the Appellant, relied on MAKINDE VS. AKINWALE (2000) FWLR (PT.25) 1550.
On the third ingredient, learned counsel referred to the evidence of its sole witness to submit that it is common knowledge that tyres do not simply fly out or explode but something triggers it and therefore it was the Respondent who was negligent in pumping the tyre and failed to note that the tyre had attained its maximum limit. Appellant argued that the Respondent did not tell the Court the cause of tyre burst or explosion and therefore, the
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Respondent also contributed to the explosion and urged the Court to set aside the judgment.
On issue two, the Appellant submitted that the trial Court did not confine itself to the case before it as settled in the pleadings but did otherwise thereby occasioning miscarriage of justice, relied on WALTER VS. SKYLL NIGERIA LIMITED (supra). That the Court is bound by the evidence but that the Court below went on a voyage of discovery to adjudicate on matters outside the pleadings, citing ADENIRAN VS. ALAO (2002) FWLR (PT. 90) 1296 and OGUNMAKINDE VS. AKINSOLA (2002) FWLR (PT. 105) 798. Appellant singled out the finding of the Court below when it held that it was not just the duty of the Appellant to provide safety gadgets but to also ensure they are worn, to say that was outside the case of the Respondent. That the case of the Respondent was that the safety gadgets were not provided and the question of supervision did not arise. Appellant surmised that the Court below should have limited itself to whether the safety tools were provided or not.
The Appellant continued to submit that the trial Court expunged the evidence of the sole witness of the Appellant
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on the sole ground that it was hearsay when the witness testified that he was at the factory on the day the incident occurred and that staff collect safety gadgets because they had them in the office and therefore the Respondent did not prove its claim that he was not issued the gadgets. The Appellant relied on EZEOKONKWO VS. OKEKE (2002) FWLR (PT. 109) 1667 to submit that the evidence of the Appellant?s witness was not hearsay and urged the Court to find for it.
On issue three, the Appellant submitted that the award of N25million general damages was excessive and arbitrarily, and it therefore calls for judicial review, citing R.C.C.NIG LTD. VS. RPC LTD (2005) ALL FWLR (PT. 265) 1041; UBA PLC VS. SAMBA PETROLEUM CO. LTD. (2003) FWLR (PT. 137) 1229. Appellant argued that the Court below did not show how it arrived at the award made. It agreed that some measure of damages was occasioned the Respondent but without a medical report of his prognosis, degree of disability or an expert?s opinion on the nature of treatment, the claimant failed to deserve the amount awarded and therefore trial Court?s reliance on Section 19(d) of the NICN 2007 is
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not applicable. Appellant urged the Court to reverse the award because it was arbitrarily awarded. Appellant urged the Court to as a matter of duty ensure and be satisfied that the factors listed in the case of STIRLING CIVIL ENGINEERING LTD. VS. YAHAYA (2005) ALL FWLR (PT. 263) 645 and HANSEATIC INTERNATIONAL LTD. VS. USANG (supra) were fully established. It admitted that ordinarily the Court would not interfere or disturb an award except in the following circumstances:
i. Where the trial Court acted under a mistake of law
ii. Where it acted in disregard of principle or
iii. Where it acted under misapprehension of facts or
iv. Where the trial Court has taken into account irrelevant matters or failed to consider relevant matters.
v. Where injustice would result if the Appeal Court does not interfere or
vi. Where the amount awarded is either ridiculously so low or ridiculously high that it must have been a wholly enormous estimate of the damages.
Appellant further relied on STIRLING CIVIL ENGR. NIG LTD VS. YAHAYA (supra) and GARBA VS. KUR (2003) FWLR (PT. 148) 1291 to expatiate on the features that allow an Appellate
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Court to interfere or disturb an award. The Appellant?s counsel cited the following cases to buttress her arguments:
i. RCC NIG LTD. VS. RPC LTD. (supra)
ii. UBA PLC VS. SAMBA PETROLEUM CO. LTD. (supra)
iii. CHEVRON NIG LTD. VS. ENIOYE (2005) ALL FWLR (PT 265) 1041
iv. MOBIL PRODUCING NIG. UNLTD. VS. ASUAH (2002) FWLR (PT. 107) 1226
v. STIRLING CIVIL ENGINEERING LTD VS. YAHAYA (supra)
vi. STEPHEN IDUGBOE & SONS LTD VS. ANENIH (2003) FWLR (PT. 149) 1438
vii. ITAUMA VS. AKPE-IME (2000) FWLR (PT. 16) 2829
In final summary, the Appellant submitted that the Respondent did not prove his claim as endorsed on the writ of summons and statement of claim and therefore not entitled to the award made in damages, citing ADELUSOLA VS. AKINDE (2004) 12 NWLR (PT. 887); MINISTER FCT VS. KAZIR (2014) ALL FWLR (PT. 723) 2039 and C.S.S BOOKSHOP LTD. VS. R.T.M.C. RIVERS STATE (2006) ALL FWLR (PT. 319) to urge the Court to allow the appeal.
The Respondent in reaction and in arguing his issue one submitted that the trial Court was right in arriving at the decision and that there are 3 conditions to be proved
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in a case of negligence, the ones listed by the Appellant. He submitted that the Appellant admitted that it owed the Respondent a duty of care and therefore it is not enough to just deny the claim without supporting it with evidence, citing ONEMU VS. C.A.N.R. DELTA STATE (2005) 28 WRN 92. On the need for the Respondent to plead negligence, he reproduced paragraph 16 of the statement of claim and that it was traversed but was left without evidence because the evidence of the sole witness was hearsay. The said witness told the Court that he was told by the personnel officer the fact in issue so the Court below was right to discountenance his evidence as hearsay. Furthermore, that the said witness capitulated under cross examination on whether the Appellant actually issued out safety gadgets to the Respondent, referred to page 165, 177 and 254 of the record. The Respondent argued further that the witness also contradicted himself and therefore the evidence should be discountenanced, relied on OBASI VS. M. BANK (2005) VOL. 124 LRCN 394 and MTN (NIG.) COMM LTD. VS. HANSON (2017) 18 NWLR (PT. 1598) 403. The Respondent argued that the Court below was right to find
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that the evidence of the Appellant?s witness was not coherent and fluid for the Court to believe.
It was further contended by the Respondent that the Appellant after acknowledging the receipt of correspondences from the Respondent failed to reply, relied on GWANI VS. EBULE (1990) 5 NWLR (PT. 149) 201. He argued that a purported reply came from a third party and it is too late to deny the admissions made therein, relied on JOE IGA VS. CHIEF EZEKIEL AMAKIRI (1976) 11 SC 12 and Section 169 of the Evidence Act to urge the Court to look into the contents of its file, relied on STATE VS. OKEKE (2002) VOL. 99 LRCN 1543 and ADEJUMO VS. AGUMAGU (2015) 12 NWLR (PT. 1472) 13 to urge the Court to look at Exhibit D5 to confirm that the essential gadgets for a vulcanizer is not listed. There was also no record of issuance of the said gadgets. Respondent argued that all evidence except documentary evidence must be proved by oral evidence as provided by Section 125 of the Evidence Act. He argued that the Appellant?s contention that the Respondent refused to wear the gadgets cannot arise and that Exhibit D5 confirms the position of the Respondent.
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On issue two, the Respondent submitted that the trial Court did no wrong because Exhibit C2 and paragraph 11 of the statement of claim which was admitted by the Appellant confirm that the trial Court confined itself to the pleadings. The Respondent submitted that the Appellant did not appeal against the ratio but orbiter and therefore the appeal should be dismissed. The ratio or reason for the judgment he submitted is as reflected in Exhibit D5 and if the gadgets were not provided there cannot be supervision on its use. Furthermore, he submitted that you don?t plead law and the trial judge was right to cite a law and rely on it. Pleadings are facts and not law or evidence and referred to ABACHA VS. FAWEHINMI (2000) 4 SC (PT. 11); FINNIH VS. IMADE (1992) I SCNJ 87 and that the citation and reliance on WESTERN NIGERIA TRADING CO. LTD. VS. BUSARI AJAO (1965) NWLR 178 was not unlawful. On the said Exhibit D5, Respondent submitted that it was mentioned in the pleadings and on the authority of OKOBIA VS. AJANYA (1998) 59 LRCN 3839, a document referred to in the pleadings becomes part of the pleadings. He then urged the Court to find for the Respondent under issue two.
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On issue three, the Respondent on the award made by the trial Court submitted that the Respondent has been incapacitated by the injuries sustained and cannot live a normal life again so he had to be compensated. He argued that pleaded facts not traversed are deemed admitted, he referred to Section 123 of the Evidence Act to say evidence not challenged in cross examination is also admitted, relied on OMOREGBE VS. LAWANI (1980) 3-4 SC 108. He submitted that the sum awarded was not special damages but general damages which is usually at the discretion of the trial judge and the award is according to the Court?s assessment as guided by the facts in the case. He cited ELF PET. NIG. LTD. VS. UMAH (2018) VOL. 276 LRCN 29 to submit that assessment of general damages is not predicated upon any legal principle but on circumstances of the case, citing UKACHUKWU VS. UZODINMA (2007) 9 NWLR (PT. 1038) 167; INLAND BANK (NIG) PLC VS. F & S CO.LTD. (2010) 15 NWLR (PT. 1216) 419 in support. The Respondent submitted that the Appellant did not challenge the Respondent on the issue of incapacitation; paragraph 28 was not traversed and the Respondent was not cross
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examined, he relied on IGHALO VS. STATE (2016) 17 NWLR (PT. 1540) 15. He argued that the incapacitation was permanent and the award was reasonable and based the sacred power of the trial judge, he referred to ZAKIRAI VS. MUHAMMAD (2017) 17 NWLR (PT. 1594) 227. On the parameters, a Court can use to assess damages, the respondent relied on CHEVRON (NIG.) LTD. VS. OMOREGHA (2015) 16 NWLR 340 and submitted that the compensation took the depreciating value of the naira into account and finally urged the Court not to disturb the award but to dismiss the appeal for lacking in merit.
The Appellant in reply on issue one submitted that the sole witness?s answer to a question that he would not know if the Respondent collected safety gadgets did not mean they were not available, relied on IBADAN LOCAL GOVERNMENT PROPERTIES LIMITED VS. OKUNADE (2005) ALL FWLR (PT. 271) 154 to argue that the Respondent failed to show that the gadgets were not available and the function of the ream cage protector was not stated. Appellant contended that for negligence to arise the damage must come from the breach of duty, citing HANSEATIC INTERNATIONAL LTD. VS. USANG (2003) FWLR
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(PT. 149) 1586 to support the argument that the Court below speculated when it found that failure to provide the gadget would lead to a particular injury.
On issue two, the Appellant?s reply is that the Court gave judgment on issues not joined by the parties, relied on ITAUMA VS. AKPE IME (2000) FWLR (PT. 16) 2829. And on the award, the Appellant submitted further that there was no evidence to justify it, citing OLOYEDE VS. PIOR (2005) ALL FWLR (279) 1282 to submit that there was no basis for the award and the Court below offended the principle of award in general damages relying on STEPHEN IDUGBOE & SONS LTD. VS. ANENIH (2003) FWLR (PT. 149) 1438 to finally urge the Court to allow the appeal.
RESOLUTION
The crux of the claim before the trial Court was for damages founded on the negligence of the Appellant to provide protective gadgets to the Respondent in the course of his duty as a vulcanizer in the Appellant company. The quantum of damages was also of grave concern to the Appellant. Negligence is a claim in tort, it was described in the case of OKWEJIMINOR VS. GBAKEJI & ANOR. (2008) LPELR-2537 (SC) as follows:
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“Alderson B, in the old case of Blyth vs. Birmingham Waterworks Co. (1856) 11 EXCH. 781 at 784, defined negligence as follows: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Seventy eight years thereafter, Lord Wright had this to say in defining negligence: “In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.” See the case of Lochgelly Iron and Coal Co. vs. M’mullan (1934) A.C. 1 at P. 25. The latter definition spells out for us the three basic components of the torts of negligence: [a] duty of care [b] breach of the duty of care [c] damage caused by the breach.”
The settled ingredients a claimant must establish to succeed in a case of negligence as listed are:
(i) The existence of a duty to take care owed to the complainant by the Appellant
(ii) Failure to attain that
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standard of care prescribed by the law; and
(iii) Damage suffered by the complainant, which must be connected with the breach of duty to take care. See Makwe VS. Nwukor (2001) FWLR (pt. 62) 1 or 16 (SC).
The apex Court had cause to pronounce on when the duty of care arises in a case of negligence and said thus:
“When does a duty of care arise, actually a duty of care has its origin on the concept of foreseeability. This principle was first enunciated in Heaven vs. Pender (1883) 11 QBD 503 at 509, where Brett M.R. said: “Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” In Donoghue vs. Stevenson (1932) AC 562 at 581 in approving the judgment of the Court in Heaven vs. Pender (supra) and Le Lievre vs. Gould (1893) 1 QB 491 at 497. Lord Atkin said: “The rule that you are to love your
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neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.? See S.B. N. LTD. VS. DE LLUCH (2004) LPELR-2968 (SC)
The Appellant as employer admits of its responsibility to provide safety gadgets and said it did provide. The safety gadget in contention here is called ream cage protector and is peculiar to the type of work the Respondent was saddled with. The Respondent said he specifically requested for those items but was not given. The purpose is to protect the face from a flying ream that might get out of a tyre while in the process of handling it. The Appellant contended in its pleadings that the Respondent was given all he needed for the work but that the Respondent was
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negligent and failed to use them. The Appellant?s sole witness told the Court he was in Ikot Ekpene on the day of the incident but was not sure of what the Respondent was given as safety gadgets, that the Appellant should have a record of it. He however does not know what they provided to the workers. But he was told by a third party that the Respondent was given the safety gadgets. Respondent was specific about the particular type called ream cage protector safety gadget in view of his special duty as a vulcaniser. The pleading and evidence of the Respondent was a negative when he told the Court he was not supplied the relevant gadget. There is therefore nothing to prove in the negative. see WUNALA VS. UCHE (2010) 2 NWLR (PT.1179) 582 at 586. The Appellant was the party whose pleading was a positive assertion and in the affirmative. The law is trite that the burden is on he who pleads or asserts the affirmative, see Section 131 and 132 of the Evidence Act and DAREGO VS. A. G. LEVENTIS (NIG.) LTD & ORS. (2015) LPELR 25009(CA).
The Appellant was found by the Court below to have failed to prove it issued the safety gadgets, and that the Respondent
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was negligent. As submitted, negligence is a function of facts and the Appellant did not present any facts to support the contention that the Respondent was negligent. The trial judge relied on WESTERN NIGERIA TRADING COY. LTD. VS. BUSARI AJAO (1965) NMLR 178 to find that it is the duty of the Appellant as employer to provide safety gadgets to an employee and to also ensure or supervise they are used. The Appellant failed to prove affirmatively that the relevant gadgets were indeed supplied to the Respondent. The Appellant disagreed with the Court below for adding the duty to also supervise the use of safety gadgets contending it is outside the case before it. As argued by the Respondent, the Appellant having failed in the major duty of supplying the needed and essential gadgets cannot divert attention to the trial Court?s reliance on an authority to state that the duty does not stop at supply of safety gadgets but to also ensure they are dutifully used. Failure to supply the gadgets has eroded any defence the Appellant could have had against the claim. The Court below did not change the character of the case before it.
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Going by the evidence, the burden on the Appellant was not discharged. The sole witness did not investigate nor called for a report on the incident and that explains why the witness knew little or nothing about the facts relevant to the case which informed his telling the Court that he was told by another officer of the company, the trial Court classified his evidence as hearsay and struck it off. A good definition of what constitutes hearsay evidence was defined in UKPO VS. IMOKE (2010) 6 EPR 851 at 907 as follows:
“Hearsay evidence has been described as evidence that does not derive its value from the credit given to the witness himself, but which rests in part on the veracity or competence of some other person. It is the evidence of a witness who is not giving evidence of what he knew or did personally but of what he was told by another person. Such evidence would be rejected as hearsay.?
Ordinarily, the evidence of an officer of a company in respect of the affairs of the company can come from any human agent of the company and it is allowed in law, see SALEH VS. BANK OF THE NORTH LTD. (2006) LPELR-2991(SC) which held:
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“It is settled law, that a company such as the respondent bank herein is a juristic person and can only act through its agents or servants. Any agent or servant can consequently give evidence to establish any transaction entered into by a juristic personality. Even where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company. Such evidence nonetheless relevant is admissible, will not be discountenanced or rejected as hearsay evidence.”
The testimony of the sole witness for the Appellant on behalf of the Appellant cannot be hearsay if he testified about official matters concerning the incident. However, the evidence can be impeached on other grounds. In this case, the witness should establish a connection in the course of his duty to what he knows about the facts relevant here but the Court below disbelieved the witness because he was very choosey about the answers he was giving and did not seem to be connected in any way to the events leading to the claim. The paramount thing is the fact that even if his testimony is alleged to have been derived from another, it should establish the facts pleaded but in this case, he did not prove that
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the Respondent was issued with relevant safety gadgets and also did not show the Respondent was negligent.
The Appellant in its brief also admitted negligence when it submitted that the Respondent was also guilty of contributory negligence because he failed to establish that what happened was not due to his fault. The law is also very clear on the duty on any party alleging contributory negligence; the definition and nature of contributory negligence was given in the case of EVANS VS. BAKARE (1973) LPELR-1176(SC) which held thus:
“Contributory negligence means that the party charged is primarily liable but that the party charging him has ‘contributed’, by his own negligence to what had eventually happened. In Butterfield v. Forrester (1809) 11 East 60 at p. 61, Ellenborough, C.I. described the principle of contributory negligence in clear and simple language as follows: “A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he does not himself use common and ordinary caution to be in the right. One person being in fault will not dispense with another’s using ordinary care for
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himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. Since 1909, the principles of contributory negligence have recognised many modifications but the essential characteristic remains the same, i.e. the party charged must be primarily liable for the negligence that caused the damage or injury. Thus, Section 1 of the Law Reform (Contributory Negligence) Act, 1945 (8 and 9 Geo. 6 c. 28) defines contributory negligence as follows: “1 (1) Where any person suffers damage as the result partly of his own fault and partly of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage…”
The onus of proof in contributory negligence is always on he who alleges. Basically, the essential characteristic with regard to the principles of contributory negligence, is
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to the effect that the party charged must be primarily liable for the negligence if any, that gave rise and caused the damage or injury. The principle of contributory negligence is founded upon the application of common sense to the simple facts of life. These are facts which reveal the action or inaction of a person who although was not primarily responsible for an accident or the cause of an injury, had by his own conduct created a situation which favoured the cause of the accident and or resulted in the injury which had occurred; be it in the form of damages or otherwise. Thus, contributory negligence as a defence to a claim is essentially predicated on negligence. It applies to cases where a plaintiff has, through his own negligence, contributed to cause, the damages he incurred as a result of defendant’s negligence. Indeed, a plea of contributory negligence is tantamount to a tacit admission of the Appellant’s primary responsibility for the complaint of negligence and thereby relieves the Respondent of the burden of proving negligence. See S.C.C. (Nig.) LTD. & ORS. VS. MRS. IGUERINIOVO (2004) All FWLR (PT.189) 1133 @ 1148-1149.
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Contributory negligence is not a defence to an action of negligence. However, where any person suffers damage as a result of his own fault and partly of the fault of any other person, a claim in respect of that damage shall not be defeated by reasons of the fault of the person suffering the damage but the damages recoverable in respect thereof shall be reduced to such extent as the Court think fit. See NATIONAL BANK NIGERIA LTD. VS. TRANS – ATLANTIC SHIPPING AGENCY LTD. (1996) 8 NWLR (PT 468) 511.
The Appellant cannot just raise the issue of contributory negligence without adequate pleading of same, and particulars of the contributory negligence see OLOLO VS. NIGERIAN AGIP OIL CO. LTD. & ANOR. (2001) LPELR-2588(SC) where it held:
“Contributory negligence must be specifically pleaded by way of defence to a claim for negligence. In the absence of such a plea, the judge may not reduce the Plaintiff’s damages. See Fookes vs. Slaytor (1978) 1 W.L.R. 1293.”
The burden of proof is also squarely on the party pleading same, see PROGRESS MORNING TRANSPORT TRADE CO. LTD. VS. OCHOR (2018) LPELR- 46274(CA). Looking at the facts and the record, the Appellant failed
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to do as expected of a party raising contributory negligence as a defence. In any case, it is not a complete defence but it merely mitigates damages. All these go to show that the Appellant admits responsibility but seeks to minimize the damages for the injury of the Respondent. On whether negligence is a matter of law or fact, the Courts held that it is settled law that negligence is a matter of fact not law. See KALA VS. JARMAKANI TRANSPORT LTD. (1961) ALL NLR 747. Before a Court finds a defendant liable in negligence to plaintiff’s claim, the Court must carefully consider the evidence called in order to ascertain whether or not negligence is established. In this case, it was established. The Appellant owes the Respondent a duty of care that was breached by its failure to provide safety gadgets relevant to the specific duty of the Respondent. The Appellant also having failed to properly plead and prove contributory negligence is also bound to be liable in damages to assuage the injuries and deformity of the Respondent who has lost the use of his eye and can no longer be employed to do what he has trained to do as a means of livelihood. I agree with the trial
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judge that the Appellant is liable in negligence.
The Appellant under issue two alleged that the Court below failed to evaluate the evidence of the Appellant. The settled legal position is that the party complaining of failure to evaluate evidence must identify in detail the piece of evidence not evaluated. See RICHARD IDOWU AKANMODE VS. MELAYE DANIEL DINO (2008) LPELR- 8405(CA) and IGAGO VS. STATE (1999) LPELR-1442(SC) which held;
“…It is accepted that Appellant who relies on improper evaluation of evidence to set aside the judgment has the onus to identify or specify the evidence improperly evaluated or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party, complaining of wrong evaluation.”
The evidence of the sole witness of the Appellant was purportedly struck out but still the trial judge evaluated it and disbelieved the witness when it held that ?I did not find the DW?s evidence coherent and fluid enough for the Court to believe it.? In addition, the Court below found that the witness was evasive and
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answered most question when asked in cross examination with the phrase: ?I would not know?. So if a witness says he would not know the essential facts with which to defend a matter, then, it means there is no defence at all. The sole witness said the Respondent works under the Personnel Manager and it was him who issued out the gadgets to the Respondent but he did not confirm how and when the items were issued. The witness said they usually sign for the items. Did the Respondent sign for them or how were the items issued out to him? The witness also said he doesn?t know if the Respondent signed for the safety gadgets. The other angle is that the Respondent refused to wear the protective gadgets and was warned. No such warning is before the Court. The witness was not the one who issued the warning. Moreso, the Appellant technically admitted liability, therefore the only issue left is quantum of damages.
The argument of the Appellant is that the amount awarded is excessive. It has been settled by superior Courts that an appellate Court would not ordinarily interfere in the award of general damages which is usually at the discretion of the
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Court, see HAMZA VS. KURE (2010) LPELR-1357(SC) which held:
“Issue of award of damages in any given case is a matter based on the discretion of the trial Court.”
Just like other situations with the exercise of discretion, the appellate Court can in exceptional case interfere when certain conditions are present and established. The Appellant gave a list of the factors to be considered and I hereby reproduce them here:
a. where the trial Court acted under a mistake of law
b. where the trial Court acted in disregard of principle or
c. where it acted under misapprehension of facts or
d. where the trial Court has taken into account irrelevant matters or failed to consider relevant matters
e. where injustice would result if Appeal Court does not interfere or
f. where the amount awarded is either ridiculously so low or ridiculously high that it must have been a wholly enormous estimate of the damages.
See also STIRLING CIVIL ENGR. NIG LTD VS. YAHAYA (supra) and the case of AGU VS. GENERAL OIL LTD. (2015) LPELR-24613(SC) which held thus:
“It is settled law that where damages have been awarded by a trial
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Court, an alteration of the award will be made by an appellate Court only where it is shown that the award is either manifestly too low or too high or was made on wrong principles – See the case of U.B.A. vs. Achoru (1990) 6 NWLR (PT. 156) 254: Ijebu-Ode Local Govt. vs. Adedeji Balogun & Co. (1991) 1 NWLR (PT. 166) 136: Onaga vs. Micho & Co. (1961) 2 NSCC 189 at 192.”
Where a trial Judge in assessing general damages proceeds upon a wrong principle or on no principle of law and makes an award which is manifestly unwarranted, excessive, extravagant, unreasonable and unconscionable in comparison with the greatest loss that would possibly flow from the said breach and without stating whether the amount awarded is for loss of business or loss of profit or anticipated profits and the measure or basis of its assessment such an award would not be allowed to stand. See Hadley vs. Baxendale (1854) 9 Exch. 314; Victoria Laundry Ltd. vs. Newman Industries Ltd. (1949) 2 K.B. 528; Osuji vs. Isiocha (supra); Okoroji vs. Ezumah (1961) 1 S.C.N.L.R 187; (1961) All N.L.R 183; P.Z. & Co. vs. Ogedengbe (1972) 1 All N.L.R (Part 1) 202 at pages 205-206; Uwa Printers
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(Nig.) Ltd. vs. Investment Trust Ltd. (1988) 5 N.W.L.R (PT. 92) 110 at 111-112; Okongwu vs. N.N.P.C (1989) 4 N.W.L.R (PT. 115) 296 and Ziks Press Ltd. vs. AlvanIkoku 13 W.A.C.A 188 at 189.
It is pertinent to re-iterate herein that in the award of general damages, a wide spread power is given to the trial Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the Appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of. Unlike special damages, it is generally incapable of exact calculation. See the following authorities of FEDERAL MORTGAGE FINANCE LTD. VS. HOPE EFFIONG EKPO (2004) 2 NWLR (PT. 865) 100 AT 132; DUMEZ VS. OGBOLI (1972), 2 SC 196; WASA VS. KALLA (1978) 3 SC 21.? And ELF PETROLEUM VS. UMAH (2018) LPELR-43600(SC).
Where the claim includes damages for pain suffered and where a medical condition was involved then, the
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apex Court stated that there is no standard format of assessing the quantum of pain suffered that Court in the case of C & C CONSTRUCTION CO. LTD. & ANOR VS. OKHAI (2003) LPELR-821(SC) explained it thus:
“…there is no known means of medically assessing the intensity or otherwise of the pain a person is going through. When related to injury, medical evidence can only describe the nature of the injury but not the pain that goes with it. The more severe the injury the more likely the severity of the pain. Such pain can merely be imagined by a person who has seen when and how the injury occurred or who sees the nature of the injury later and was told how it happened including the medical doctor who may have treated the victim and noticed the agony he expressed by words or action or through groaning; or to whom the nature of the injury is described and the circumstances in which it occurred. For instance, a person who saw how any person’s limb, e.g. leg, was crushed by a heavy object would literally feel, pathologically, some reflexes which tend to register in him that the victim has undergone severe pain. When told about it he will likely imagine the
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severity of the pain. But the real nature of the pain can best be experienced or described by the victim. These matters can be considered at times in different extremes as they concern individuals, with a rather more or less consequence, depending on the victims affected. It is in this regard, I think, that Sellers, L.J. observed in Wise vs. Kaye (1962) 1 All ER 257 at 262 inter alia: “There is, I think, no common denominator for pain which is a bodily hurt, such as toothache, which can be acute with some people and vary in degrees of intensity down to those who are immune from pain although subject to an injury which would inflict pain on others. In modern medicine pain, it must be recognized, can be subject of control or modification by drugs. Pain of that sort can often be described in evidence as to its extent and duration, and its intensity can, perhaps, be assessed and compared.” [Italics mine] Such evidence that will best describe the extent and duration of pain will necessarily come from the victim. He will express in words and emotion the extent and intensity of the pain and for how long he has undergone it either continuously or from time to time at
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its most painful onset. As I said already, others might either sense it or imagine it depending in what circumstance they came to know about the injury causing the pain. Again, pain may end while suffering may continue. A good example is when a person who initially went through pain as a result of injury may reach a point due perhaps to some development, such as stroke, in which he experiences numbness in the limb affected instead of pain. His suffering may continue despite the cessation of pain. The suffering may be a result of the handicap the victim now goes through or the psychological or mental trauma coming in the aftermath of the injury. I will here refer to the further observation of Sellers, L. J. in Wise vs. Kaye (supra) at page 262: “If suffering is to be regarded as distinct from a bodily hurt and is used to describe mental anguish and distress it is, in my view, generally regarded as much more difficult to assess, depending as it does so much on the nature, character and outlook of an individual.” All these are matters that a Court must bear in mind, from available evidence, in awarding general damages for pain and suffering. Once a plaintiff has
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successfully shown that he suffered personal injury as a result of a breach of duty owed him by the defendant, the claim for pain and suffering must be considered. No principle can be laid down upon which damages for pain and suffering can be awarded in terms of the quantum. There is, however, no doubt that pain and suffering is a recognized head of award that sounds in general damages. The Court must consider what the compensation should be going by the evidence that gives an insight into the intensity of the pain and suffering. The award is usually generous although it should not be excessively high or grossly low. It must be such as reasonably tends to reflect the intensity of the pain and suffering: see The Mediana (1900) AC 113 at 116-117; Warren vs. King (1963) 3 All ER 521 at 526; United Bank for Africa Ltd. vs. Achoru (1990) 6 NWLR (Pt. 156)254 at 280-281, 288; Strabag Construction (Nig.) Ltd. vs. Ogarekpe (1991) 1 NWLR (pt. 170) 733 at 753-755.”
The Respondent pleaded and testified as to the injuries suffered which led to him losing one eye, some teeth and other bodily injuries. He was also abandoned while on admission. The Appellant argued that
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their insurers are ready to process his compensation but he was not informed. In any case the issue here is whether the award of N25million excessive? The Respondent can no longer be employed for any work; he cannot recover the use of the eye in any way which he lost in the course of serving the Appellant. Appellant raised some issues which are merely invoking sentiments. Human body parts cannot be quantified in terms of monetary value and the eye is a important organ not replaceable. In general damages, the idea is restitution integrum, can the eye be replaced? The answer is NO. In view of the peculiar facts of this case, the Respondent deserves some compensation in damages, the Appellant has not justified why the Court should interfere with the exercise of discretion by the trial Court. The financial position of the Appellant is not one of the reasons to influence the Court to interfere. I do not think the award is excessive. I decline to interfere.
Consequently, this appeal is unmeritorious and is hereby dismissed. The judgment of the National Industrial Court of Nigeria delivered on the 30th May, 2017 in suit NO. NICN/UY/01/2013 is hereby affirmed. I make no order as to cost.
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MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother, Yargata Byenchit Nimpar, JCA. My learned brother has carefully dealt with the issues nominated in the appeal. I agree with the reasoning and conclusion. I also find no merit in the appeal and I too dismiss same.
I abide with the order as to cost.
MUHAMMED LAWAL SHUAIBU, J.C.A.: My learned brother Yargata B. Nimpar, JCA obliged me a draft copy of the judgment just delivered. The appeal is devoid of merit. I equally dismiss the appeal and abide by the consequential orders made in the leading judgment.
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Appearances:
Lady Helen Egube, Esq.For Appellant(s)
David G. Udo, Esq. with him, Ernest Okon Usah, Esq.For Respondent(s)
Appearances
Lady Helen Egube, Esq.For Appellant
AND
David G. Udo, Esq. with him, Ernest Okon Usah, Esq.For Respondent