IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE MUSTAPHA TIJJANI
WEDNESDAY, OCTOBER 31st 2018.
SUIT NO: NICN/LA/119/2017
BETWEEN
MR SUNDAY SHOBUOLA ………. CLAIMANT
AND
LEOPLAST INDUSTRY LIMITED ………. DEFENDANT
REPRESENTATION
S.O Sodipo for the Claimant
O. Anozie for the Defendant.
JUDGMENT
By General Form of Complaint and other originating processes dated and filed on the 17th of March 2017, the Claimant commenced this suit against the Defendant and claimed for the following reliefs:
A DECLARATION that the injury suffered by the Claimant was occasioned during his engagement and under the immediate control and consent of the Defendant.
A DECLARATION that the Defendant has a duty of care by ensuring the machinery and equipment under the control of the Claimant in the course of the business are at all times in a good and safe condition before, during and after daily operations of the said machinery.
A Declaration that the Defendant breached the duty of care on the 7th of July, 2015 by willful omission or by intentional negligent, which same resulted into the injury and permanent bodily damage suffered by the Claimant till date.
A Declaration that the Claimant is entitled to be compensated by the Defendants due to the damage done to him, in view of the injury sustained and suffered by him.
AN ORDER that the sum of -N- 100,000,000.00 (One Hundred Million Naira) be paid to the Claimant as a general and aggravated damages by the Defendant and also as a compensation to the Claimant for the extent of the injury suffered him.
AN ORDER that the cost of this action be paid by the Defendant and same should be assessed at 10% of the general damages awarded upon judgment and the totality of the said judgment same at payable via a cheque issued in the name of DIVINE HERITAGE CHAMBERS (Solicitors to the Claimant).
In response, the Defendant filed its Statement of Defence and other accompanying processes on the 20th of April 2017 denying the claims of the Claimant in its entirety. The Claimant also filed a reply on 12th June 2017.
During trial, the Claimant testified for himself by adopting his written depositions on oath and tendered 8 documents which were admitted and marked accordingly. The Defendant had testified through though Mr Ronald Olaiya, its Human Resources Manager, who adopted his written deposition and tendered 12 documents which were admitted and marked accordingly.
THE CASE OF THE CLAIMANT
The Claimant’s case is that he was employed by the Defendant on 18/5/14 while he was 19 years of age, that while he was on duty on 7/7/15 in the Defendant’s company, he had an industrial accident in which a machine he was operating cut off the five fingers on his left hand and thereby suffered permanent disability. That the malfunctioning of the machine he was operating was due to non-maintenance and defective equipment, for which he had made several complaints to the Engineers in the maintenance department and supervisor of the Defendant but they neglected to attend to same. That after several attempts by him to get the Defendants settle him, for their negligence and intransigence, he had to file this action.
THE CASE OF THE DEFENDANT
The Defendant’s case is that its machines were all functioning properly at the time of the accident and no complaints were lodged by the Claimant or anyone else to the management with respect to the functioning and operation of the machine. That all its employees and staff members contracted to work at its premises were well trained on the use of the machine and requisite protective gears were provided. It also the Defendant’s case that the injury to the Claimant occurred when in the normal course of operation of the machine, it paused in order to push out the items programmed in it, and in a haste, the Claimant rather than waiting for the machine to push out the product, put his hand in the machine in a bid to push out the product contrary to technical and safety instructions given to the Claimant.
THE SUBMISSIONS OF THE DEFENDANT
In its final written address, the Defendant raised a preliminary issue to wit:
Whether the Claimant’s witness statement on oath dated 27/2/18, Exhibit A7-A13, is valid
In arguing the above issue, the learned counsel for the Defendant referred this Court to the proceedings of 21st of February, 2018 and said due to the incompetence of the Claimant’s witness undated statement on oath, the Claimant’s Counsel sought for an adjournment to enable him file another witness statement on oath due to the fact that the Claimant’s initial witness statement on oath was undated. That the Claimant on the 27th of February, 2018 filed what he titled “Further and Better Written Statement on Oath”, on which document the Defendant during the proceedings of 15th March 2018, reserved its right to address this Court on its admissibility and evidential value in its final written address.
To the Defendant, the Defendant the Claimant’s Exhibit A7-A13 is void and cannot be relied upon by this Court. That the Claimant having titled his witness statement as “further and better written statement on oath of Mr. Sunday Shobuola” presupposes that there exists a valid witness statement on oath before the Court to which Exhibit A7- A13 is further to. The Defendant then referred this Court to the proceedings of 21/2/18 where the Claimant’s Counsel sought an adjournment to enable him file another witness statement on oath, wherein the substantive written statement on oath was found incompetent by this Court. To the Defendant, the question is whether in the absence of a competent substantive witness statement on oath before the Court, there can be said to be a valid “further and better witness statement on oath” as to clothe Exhibit A7-13 with validity, the Defendant then answered the question in the negative and said it is settled law that one cannot place something on noting and expect it to stand. Reliance is placed on the case of; Mcfoy v UAC (1962) AC p.152 @ 160.
It is submitted by the Defendant that in the absence of a competent substantive witness statement on oath for the Claimant before this Honourable Court validating Exhibits A7-A13, the Claimant’s case automatically losses momentum as all documents emanating therefrom is void leaving the Claimant’s claim bare, unproved and unsupported by evidence and that the law is trite that pleadings unsupported by evidence is deemed abandoned. Citing Omo-Agege V Oghojafor (2011), Pt 1234, 341 at 353, Paras G-H. The Defendant further submitted that Exhibit A7-13 is incompetent having been sworn to in furtherance to a non-existent witness statement on oath and that all documents sought to be relied upon by the Claimant admitted through Exhibits A7- A13 are void as one cannot place something on nothing. That the Claimant’s Claim must fail as all the Claimant has before this Honourable Court are mere averments unsupported by any evidence.
It contended by the Defendant that another wicket of the Defendant’s preliminary legal submission is that the photograph report from Igbobi Hospital tendered by the Claimant and admitted by this Court as Exhibit CWF-F2 which was generated from computer was wrongly admitted and ought to be expunged from the records of this Court because of the Claimant’s failure to comply with the provisions of Section 84(1) and (2) of the Evidence Act. Placing reliance on the decision of the Supreme Court in the case of DICKSON v. SYLVA & ORS (2016) LPELR-41257(SC), section 84(1) and (2) of the Evidence Act 2011 and Olayinka v. State (2007) 9 NWLR (Pt.1040) 561, (P. 14, paras. A-C). The Defendant then urged this Court to expunge the said Exhibit CWF-F2 being photograph report from Igbobi Hospital from the records of the Court for non-compliance with the provision of Section 84 of the Evidence Act.
The Defendant averred that assuming without conceding that the Court finds the Claimant’s further and better witness statement on oath marked as Exhibit CWA7- CWA13 as competent, the Defendant on the merits of this case submits two issues for the consideration of this Court. To wit:
whether the claimant has proved a case of negligence against the defendant.
whether the claimant is entitled to the reliefs sought.
On the first issue, the Defendant submitted and maintains its account on what transpired on 7/7/15. The Defendant reiterates its averments under paragraph 16 of DW1 Witness statement on Oath to the effect that whilst the Claimant was operating the Defendant’s machine, the Claimant, due to impatience, sought to alter the programmed course of production by inserting his hand into the machine in a bid to push out the finished product contrary to technical and safety instructions given to him thereby exposing himself to harm which resulted in the said incident. That without conceding to the Claimant’s account of how the incident of 7/7/15 occurred, the Defendant drew the attention to the myriads of apparent contradictions in the Claimant’s account of the industrial accident that transpired on the 7/7/15. The Defendant then reproduced paragraphs 19 of Exhibit A7-13, paragraph 14 and 16 the Claimant’s reply to the Defendant’s defence and submitted that the Claimant has provided four inconsistent accounts of the incidence of 7/7/15. That the Claimant asserts that it was the blade/ mode that was not well fixed, while in his reply in one hand he alleges that the machine hanged while in another breath he alleged that the machine had switched on back suddenly and the gas melted the mode and cut off his fingers. Learned counsel to the Defendant therefore submitted that the position of the law is settled that a witness who gives materially conflicting versions of a crucial fact in issue in a case is totally unworthy of credibility. Citing Nig. Liquified Natural Gas Co Ltd V Edward Emmanuel HarT (2013) LPELR-21176(CA) and Cletus Okwuchukwu V State (2013) LPELR-22035 (CA).
The Defendant also argued that the Claimant has failed, refused to provide this Honourable Court with true account of how the incident of 7/7/15 occurred, that the only conclusion to this is the fact that they all failed to give account because they know that the Claimant was the one who acted carelessly and negligently on the said date. That the law is trite that evidence which could be produced but is not produced is presumed to be against the interest of the party withholding the same. Citing Section 167(d) of the Evidence Act, 2011, the cases of; Ogwuru v Co-Op Bank Of E/N Ltd, 1994, 8NWLR, Pt 365 at Pg 700, Paras A-B and U.B.A V Ibhafidon, 1994, 1NWLR, Pt 318 at Pg 119, Paras B-D.
The Defendant further argued that the law is settled that he who asserts must prove. Citing Section 131 (1) of the Evidence Act, 2011 and the case of AG Bayelsa v AG Rivers State, 2006 12 SC. 134. The Defendant went on that whilst it is undisputed that the Claimant was involved in an industrial accident on the 7/7/15, the law is trite to the effect that it is the Claimant herein who is asserting that the accident of 7/7/15 was caused by the Defendant’s negligence and therefore has a duty to show by credible and legally acceptable evidence how the purported negligence of the Defendant caused his injury. Citing Abubakar v Joseph, 2008, 13NWLR, Pt.1104, Pg 305 at Para D.
The Defendant averred that the summary of the Claimant’s testimony in paragraphs 10-12 of Exhibit CWA7-13 is that the maintenance of equipment used in the manufacturing process is poor and that the modes from the machine produces waste any time the machine malfunctions. That at paragraph 12 the exhibit the Claimant stated thus: “………………That a blade is attached to the mode of the machine with the same blade has a switched down operation against the normal dimension and those modes from the machine produces waste product anytime the machine is malfunctioning thereby causing injury to users”.
The Defendant argued that literally, the import of CW1’s testimony above is that a sign that the machine is malfunctioning is the production of waste by the machine. That in paragraph 19 of the Claimant’s further and better witness statement on oath, the Claimant admitted that on the 7th day of July 2015, “I was operating the machine. While the blade attached to the mode which was not well fixed started to count down during the use of the EPS Machine the blade cut off my fingers”.
To the Defendant, a juxtaposition of Claimant’s testimony at paragraphs 12 and 19 shows clearly that the machine was not malfunctioning and what happened on 7/7/15 from Claimant’s testimony is that the blade/mode was not well fixed. That this is the gravamen of the testimony of the Claimant and no other. The Defendant then argued that there is a great difference between a machine malfunctioning because the machine is faulty and its malfunctioning because of human error, if a machine operator who ought to take a certain action fails or neglects to do so. The Defendant therefore submitted that it is evident that contrary to the falsehood being concocted to the Court by the Claimant (i.e that the machine was faulty or malfunctioning), the Defendant’s machine was in good condition and functioning properly. The Defendant further argued that in paragraph 18 of the CW1’s statement on oath, the Claimant stated that the machine was used on rotational basis, that during cross examination, the Claimant admitted this fact in addition to the fact that the machine operators employed by the Defendant were made to work in shifts and that he is responsible for the machine and its operation whenever he is on his shift. The Defendant referred this Court to the proceedings of 15th March 2018. Reliance is placed on Gaji v. Paye (2003), 8 NWLR, Pt 823, 583 at 611, Paras A-B and Godwin Nwafor Maduka & Ors V Victor Echezona Anyadiegwu (2014) LPELR-23751 (CA). The Defendant then submitted that it is the law that facts admitted require no further proof. Citing Section 122(2) of Evidence Act, 2011 and the case of Biezan Exclusive Guest House Ltd V Union Homes Savings & Loans Ltd. 2011, 7 NWLR, (Pt. 1246) at 283.
The Defendant urged this Court to note that in as much as the Claimant has tried to elaborately allege that the Claimant’s machine was malfunctioning or not well maintained, the truth of what happened on 7/7/15 is clear from the pleadings filed by the Claimant and the evidence elicited during the fire of cross examination to the effect that the Claimant himself stated that in the course of operating the machine the accident occurred because the blade attached to the mode of the machine was not well fixed.
The Defendant went on that the question that begged to be answered was simple – whose responsibility is it to ensure whether the blade of the machine was fixed properly. Is it the employer who contracted and trained a machine operator to ensure the proper and safe operation of its equipment OR a machine operator like the Claimant who is being paid by the Defendant to man its machine and ensure that same is properly set up and prepared for production? The Defendant therefore submitted that the Claimant being a machine operator had the responsibility to ensure that the blade to the machine was properly fixed and his failure to do that which was required of him resulted in the unfortunate industrial accident.
It was contended by the Defendant that in the entirety of the Claimant’s case there is nowhere the Claimant pleaded or even provided evidence to show/support that the Defendant had a duty to ensure that the blade attached to the mode of the machine is well fixed when the machine is in operation. That in a turn of events, the Claimant himself did admit during cross examination that he is responsible for the machine while on his shift and that although he was diligent he failed to do all that was needed to be done.
The Defendant further averred that the elements for proof of negligence have been laid down in plethora of cases which are the existence of a duty of care to the Plaintiff by the Defendant, Breach of the duty of care by the defendant and damages suffered by the Plaintiff as a result of such breach. Reliance is placed on Abubakar v Joseph (Supra) at Pg. 341 at Paras G-H and FCDA V MTN Nig. Ltd (2016) LPELR-41248 (CA)
The Defendant also averred that the important question before this Honourable Court in view of all the legal principles enunciated above is whether the Claimant herein proved the alleged negligence? The Defendant responds to the above in the negative as the Claimant has failed to prove the alleged negligence. That though the Claimant has stated how the accident occurred he has in no way provided details (he failed to make any pleadings stating how the blade of the mode not properly fixed is an act of negligence on the path of the Defendant) and prove with credible supporting evidence of how the blade attached to the mode not being properly fixed is an act of negligence by the Defendant. That in evidence he stated that while he was operating the machine (we refer to paragraph 12 of his statement) his fingers were cut off because the blade attached to the mode was not well fixed. The Claimant has the responsibility to man the machine during his shift and he failed to do all that was needed to be done.
The Defendant also submitted that it did owe the Claimant duty to ensure the machines are functioning well, provide safety and protective wears for its factory employees as well as general safety of the work place. That the Defendant, in support of having fulfilled his duty of care to the Claimant has placed before this Court Exhibits D1, D2 and D11. That DW1 also in paragraphs 5-13 did aver to the fact that its employees or anyone contracted to work in the Defendant’s company is trained on the use of machine, provided with safety wears/ gadgets and that its machine are functioning properly and properly maintained as at when due.
The Defendant reiterates that the Claimant had in his testimony stated that the machine produces waste when malfunctioning and in the instant scenario there is no averment or proof that the machine produced waste prior to the accident which in effect means the machine indeed was functioning properly. The Defendant therefore submitted that failure to properly fix a blade does not mean or make the machine faulty and that failure to have the blade properly fixed is simply human error of the machine operator. The Defendant also argued that obviously, the machine is under the Claimant’s control during his shift and he did admit that he had the responsibility for manning the machine whilst he was on shift and that it is settled law that, what is admitted need no proof. Citing Ehinlanwo V Oke, (2008) 6-7 S.C (Pt 11) 123.
The Defendant also submitted that in the case of Abubakar v Joseph (Supra) Pg 342, Paras A-B the Supreme Court provided the test to determine the negligent party in motor accident cases, which principles the Defendant said it believes most humbly can apply to accidents cases generally, that the Court held “…The test to be applied in determining who was negligent is to look for the person whose negligence substantially caused the accident by determining whether or not that person could have avoided the collusion by the exercise of reasonable care”. To the Defendant, this clearly sums up its case, that from the testimony of CW1, it is on record that the machine ( although owned by the Defendant) as at the time of the incidence on 7/7/15 was under the Claimant’s control and the Claimant from his admission was responsible for the machine as at the time of his shift and he also did further admit under cross examination that he did not do all that was needed to be done with respect to the operation of the machine. Without more, the Defendant submitted that the only person negligent in this case was the Claimant who failed to exercise reasonable care by ensuring that the machine under his supervision was in order prior to the operation of the machine. The Defendant then submitted that indeed it had duties to the Claimant and it did fulfill its duties to the Claimant and as it relates to the instant case, the Defendant has not acted in breach of any of its duties as the accident that occurred on the 7/7/15 was not due to the Defendant’s negligence but due to the Claimant’s failure to do what was required of him in respect of a machine under his control and for which he clearly has admitted responsibility.
The Defendant also urged this Court to also note that the Claimant is an untrue witness, and his testimony before the Court has remained inconsistent and thus cannot be relied upon by the Court. That asides from the inconsistencies in the Claimant’s claim before the Court as highlighted in paragraphs 4.4-4.9, the Claimant further gave more inconsistent evidence in that the Claimant in paragraph 17 of his further and better witness statement stated that “The machine was still in operation barely two days after the incident and is still in operation till date”. But when asked during cross examination if the machine was still operating he answered NO. That at paragraph 22 of the Claimant’s further and better witness statement on oath where the Claimant stated that he was rushed to the hospital in the Company’s vehicle but when asked the same question during cross examination he stated that the Defendant abandoned him. That in paragraphs 28 -30 of the Claimant’s further and better statement on oath, the Claimant stated that he was abandoned in the hospital for more than 2 months and the money for the prosthetic was not made available to the hospital until his lawyer wrote to the Defendant, the Defendant then Exhibits D4-D7, which shows that the Claimant without paying a dime was discharged on 21/9/15, that notwithstanding the fact that it was not the Defendant’s negligence that led to the accident the Defendant paid all the Claimant’s hospital bills including the fee for prosthetics. That Exhibit D4 particularly shows that the Claimant was not abandoned in the hospital but was adequately taken care of and discharged upon satisfactory recovery. The Defendant also referred this Court to Claimant’s solicitors letter of October 30 2015, ( i.e Exhibit CWB-B1) and said there is nowhere in that letter where the Claimant or his solicitors requested or mandated the Defendant to pay for the hospital bills or prosthetics as alleged by the Claimant. The Defendant averred that the law is settled as to the attitude of Courts to inconsistent evidence of a witness. Citing the cases of; M.S.C Ezemba v S.O Ibeneme & Anor, 2004, 14 NWLR, Pt 894 at 617 Saka Oladejo V The State, (1987) 4 S.C.
The Defendant submitted that without undermining the pain of the Claimant or sympathetic nature of the incident that occurred to the Claimant, the Claimant has consistently lied to the Court and there is no basis upon which this Court should give any credibility to the Claimant’s account of the accident that occurred on 7/7/15 or his account about the Defendant and purported culpability. The Defendant further submitted that to find the Defendant negligence because the testimony of an obviously untrue witness would not do justice to this case. That in any event, the Defendant’s testimony on the occurrence of the industrial accident as stated in paragraph 16 of his statement on oath has remained consistent from the onset and is worthy of honour.
The Defendant urged this Court to note that the testimony of the DW is consistent, valid and binding. That the law on the juristic personality and nature of a Corporate entity which acts through its members and employees is well settled and beyond dispute. That it is trite that a company can testify as to anything pertaining to its affairs through any of its employees notwithstanding that such an employee was not in the employment of the company or take part in the transaction on behalf of the company at the material time of the transaction or issue. Citing the Cases of; Alh. Ishola V SGBN, (1997) LPELR-1547 (SC) and Saleh V BON, 2006, 6NWLR, Pt. 976 at 316
In the light of the legal submissions raised above, The Defendant submitted that the Court should give no credence to the Claimant’s evidence in view of the apparent inconsistences contained therein and the fact that the Claimant has failed to prove his case against the Defendant. That the law is settled that where a Claimant fails to prove its case of negligence against the Defendant the appropriate order for the Court to give is to dismiss the suit. Citing the case of Abubakar v Joseph (Supra).
On the second issue for determination, the Defendant argued that in the light of the submissions argued under Issue one, the Claimant is not entitled to any of the reliefs sought having failed to prove his case against the Defendant for the under listed reasons:
On relief i – The Defendant submitted that the Claimant is not entitled to this relief as the machine was under his immediate control and that the Defendant also in no way consented to the Claimant’s injury as the Defendant has done all it was required by law but the Claimant chose to put his hand into the machine to speed up the process for which he got injured from.
On relief ii- The Defendant submitted that although its machines were all in good conditions, the Claimant is seeking a relief for which no pleadings were filed in support of and no evidence in support of same. Citing A.G Federation v A.G Abia State, (No 2) 2002, 6 NWLR (Pt. 764) 542.
On relief iii- The Defendant averred that from the Claimant’s account and testimony, it is clear that the Claimant acted in willful omission of his responsibility to man the machine during the course of his shift. That by admittedly failing to do what was required of him, the Claimant sustained the industrial accident and that it is clear from the Defendant’s authentic testimony that the Claimant was intentionally negligent having put his hand in the machine in a bid to manually push out the product.
On reliefs iv and v- The Defendant avers that the Claimant is not entitled to any damages as the accident was not caused by any act of negligence on the path of the Defendant and urged this Court to so hold.
On relief iv- The Defendant submitted that the Claimant is not entitled to the cost of this action having failed to prove his case against the Defendant.
THE SUBMISSIONS OF THE CLAIMANT
In his final written address, the Claimant started by making response to the Defendant’s preliminary issues for determination regarding Exhibit A7-A13. In answer to paragraphs 3.1 to 3.6 of the Defendant’s final written address, the Claimant submitted that what is before the court is what the court should look at and same having been admitted without any objection the court ought to and should look at it as the evidence of the claimant in this case. Reliance is placed on Order 1 r 9 (2) and (3) of the National Industrial Court of Nigeria Civil procedure rules 2017, section 12 (2) b of the National Industrial Court Act 2006, Section .114 of Evidence Act 2011 and the case of NAL MERCHANT BANK PLC V ODECHE & ASSOCIATES LTD (2000) FWLR PT. 28 PG. 2186 C.A. in which the Defendant said the Court had held, while interpreting S. 84 Evidence Act 1990 but now section 114 Evidence Act 2011, that section 84 of the Evidence Act 1990 makes it clear that the court may permit the use of an affidavit, notwithstanding that it is defective in form, provided the court is satisfied that it was sworn before a person dully authorized to administer Oaths. The Claimant further submitted that by the proceedings of 15/3/2018 the learned counsel for the claimant sought for leave to regularize his process and same was not opposed by counsel to the defendant and the court graciously granted the prayers, that the procedure had fully satisfied section 115 of the Evidence Act and the case of BUHARI V INEC (2008) 4 NWLR PT. 1078 PG. 546 CA. The Claimant therefore contended that that the preliminary arguments in paragraphs 3.1 to 3.6 of the defendant’s written address be discountenanced.
To the Claimant, the objection of the defendant under consideration is a technical one and having regard to the nature of this case which borders on inhuman treatment of the claimant by the defendant not operating under international best practice in industrial operations viz-a-viz the establishment of this court to see that international best practices are observed in industrial operations, the Claimant submitted that this is a proper circumstance in which the technical rules of evidence as contained in section 84 of the Evidence Act 2011 should be jettisoned for a more humane consideration in the interest of justice as contained in section 12 (2) (b) of the National Industrial Court Civil Procedure Rules 2017 and urge this Court to so hold.
The Claimant has formulated two issues for determination thus:
Whether the claimant to the satisfaction of this Honourable Court made out a case of Negligence/poor factory safety procedures against the Defendant.
Whether the claimant is entitled to the reliefs claimed”.
On the first issue, the Claimant submitted that it is well settled principle of negligence that a person owes a duty of care to his “neighbour” who would be directly affected by his act or omission. That there is a legal duty owed to take reasonable care to avoid acts or omission which can be reasonably foreseen to likely injure a neigbour. That “Neighbours” in this regard are persons who are so closely and directly affected by one’s act that one ought reasonably to have them in contemplation as being so affected when one is directing his mind to the acts or omissions in question. Citing U. T. B. (NIG) V OZOEMENA (2007) 3 NWLR (PT. 1022) PG. 488 SC. and ANYAH V IMO CONCORDE HOTELS LTD (2002) 18 NWLR (PT. 799, PT. 377) SC.
The Claimant further submitted that in law, the owner of any machinery or vehicle is not liable in negligence for every latent defect in the machinery or vehicle which may or does not cause an injury, nevertheless the occurrence of the accident itself cast upon the defendant a duty to account for it. And the duty is not discharged by the defendant merely suggesting explanation into how the accident occurred. That the defendant must show that the explanation it has made is the correct one see S.CC (NIG.) LTD V ELEMADU (2005) 7 NWLR (PT. 923) PG. 28 C.A. The Claimant went on that case of DONOGHUE V STEVENSON laid the foundation of the law of negligence. That It is complete and actionable when three conditions are satisfied namely (a) the defendant owed a duty of care to the plaintiff; (b) the duty of care was breached and (c) the plaintiff suffered damage arising from the breach. That Juxtaposing the above statement of the law to the case at hand, the Claimant in proof of his case, deposed to Exhibit CWA7 – A13 where at paragraphs 1-8 he narrated his relationship with the defendant, and in paragraphs 10-20 he stated under what unsafe condition he was subjected to alongside his colleagues until the accident that happened to him on 7/7/15 while working under unsafe condition with a defective machine for the defendant. That at paragraph 33-38 he explained how the defendant’s refusal to manage the machine he was operating inspite of several complaints by him and his colleagues. which subjected him to permanent disability of being unable to use his left hand for life.
The Claimant contended that he is an ordinary operator of Industrial Machine and not an Engineer who can decipher when a machine is malfunctioning as deposed to in paragraphs 29-32 of DW1 deposition. That the position of the Claimant is likened to that of a secretary that operates a computer in an office, who put on the system when she comes in and wait for it to boost, if the system refused to boost or start malfunctioning you cannot put the blame on the secretary but you call a computer Engineer to come and look into it. That the deposition of DW1 in paragraph 16 thereof is callous, uncharitable, and to say the least inhuman and it reflects the defendant mindset when someone is not suffering from mental delirium, that how can one possibly and deliberately put his hand in a working machine for it to be cut off? That the struggle albeit unsuccessfully to explain how the machine was working and pausing is just a confirmation of the claimant’s averments that the machine was faulty because the claimant is not an Engineer, nor a technician and that was not his first time of operating a machine.
The Claimant then asked : who programmed the machines and said it is definitely not the claimant because he is just an operator, who comes in put on the wire to connect the machine to electricity so that it can start the work of production for which he is being paid and not to go into the technical aspect of programming a machine. To the Claimant, the assertions in paragraphs 16, and 17 of the DW’s deposition is also a confirmation of condition of unsafety in the defendant’s industry at that time as contained in paragraph 1 of Exhibit DW11 to wit “Leoplast industry is a household plastic manufacturing company. It has its administrative headquarters in Oshodi area of Lagos State while its plants were located in Sango Industrial area of Ogun State. In May 2016 the company came under the scrutiny by the National Industrial Safety Council of Nigeria, NISCN which serious indicted it to the extent of a threat to close it down”. The Claimant then submitted that one can imagine the gravity of human risk and unsafety situation that the workers were working under, before government regulatory organization can come down so heavily on the defendant and this was just few months away from the time the claimant had the unfortunate mishap.
It is further submitted by the Claimant he was not the only one that the defendant had put in this situation, that in a case decided by this Court per J. D. PETERS on 10/5/2018 in Suit No. NICN/LA/43/2016 where the Honourable Judge had no trouble in awarding the damages claimed by the claimant another employee of the defendant herein, as 3 other Employees of the defendant had suffered the same fate in their ISOLO OFFICE just like the claimant herein and all these happened before the National Industrial Safety Commission clamped down on the defendant in 2016. The Claimant therefore submitted that all those exhibits tendered to show compliance with safety commission were mere afterthought and only came about after 2016.
The Claimant went on that another area he would like to point out why the DW1 evidence should be discountenanced in its entirety is that it offends section 125 and 126 of the Evidence Act 2011 which the Claimant reproduced. The Claimant also reproduced paragraph 16 of the Dw’s statement on oath. The Claimant further stated that section 114 of the Evidence Act formally section 86 states that “Every affidavit used in Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true”. That suffice it to say at this juncture that DW1 was not employed by the defendant until October 2017 as disclosed by him under cross-examination wherein he confessed that he did not know the state of the machines before he was employed. That paragraph 1 of the DW1 deposition simply states that he is the Human Resources Manager in the Defendant’s company without disclosing his source of information and whether he believes same to be true or not having not been in the employment of the defendant when the cause of action occurred. The Claimant therefore stated that the position of the law relating to all his deposition is that it is all hearsay and not admissible in law. Placing reliance on section 115(3) and 115 (4) of the Evidence Act 2011 and the case of EDU V CAWERD (2001) FWLR PT. 55 PG. 43 CA. The Claimant therefore submitted that the DW’s depositions therein contained should be rejected and discountenanced for not disclosing where he got his information from and the names and particulars of his informants and whether he beliefs that information to be true and correct. Claimant went on that the point be made that evidence deduced from the opponent that supports the case of the claimant can be relied upon to make a finding for the claimant. Hence, Exhibit DW11 which support the case of the claimant in this matter be retained and made use of in finding for the claimant and we so urge.
It is contended by the Claimant that he has discharged the burden on him of proving the three elements of Negligence as propounded in the case of U. T. B V OZOEMENA (Supra) and this is because (1) On duty of care; the Claimant has shown that he is an employee of the defendant otherwise he would not be given a duty to operate his machines and this he has been doing for more than 1 year before the industrial accident that chopped off his left hand and for which the defendant immediately took him to their hospital for treatment even though shabbily done. That it is also not disputed that the claimant had sustained the injury in the course of the discharge of his duties as an employee of the defendant. That these unchallenged facts go to establish the simple fact of existence of employer/employee relationship between the parties, at least prior to the occurrence of the accident leading to the institution of this case and that the existence of employment relationship, even at common law imposes a duty of care on the employer respecting his employees. Citing Kobo Air Limited V Mohammed (2014) LPELR 23614 (CA) and LORD WRIGHT IN WILSONS AND CLYDE COAL CO LTD V ENGLISH (1938) AC 57 AT 84. To the Claimant, it suffices therefore from the pleaded facts before the court and the evidence led especially Exhibit DW11 to submit most respectfully that the defendant as the employer of the claimant owe the claimant a duty of care.
On the second element of negligence, breach of the duty of care, the Claimant argued that the evidence led in this regard by the claimant was as contained in paragraphs 10, 12, 14, 15, 16, 19, 34, 35, 36, 37, and 38 of Exhibit CW A7 – A13. That these paragraphs show that the machine was faulty and that despite repeated demand the needed repairs were not carried out and that the defendant was always using substandard cutting machines for the use of its employees and that protective gloves were not provided for the operators of the cutting machines. The Claimant therefore submitted that the defendant owe a duty of care to the claimant; that the duty of care was breached by the failure of the defendant to repair its faulty machines and to provide industrial hand glove for its employees who were operating the cutting machine one of whom the claimant was and in violation of the international best practices in industrial operations and as greatly indicted by National Safety Industrial Council of Nigeria as contained in Exhibit DW11 and that the breach of duty of care resulted in serious damage to the claimant.
On the third element of negligence, whether the claimant suffered damages, the Claimant has shown in paragraphs 7, 8, 19, 20, 22, 23, 24, 25, 31, 32, 33, and 40 of Exhibit CWA7 – A13 , the excruciating pains he went through and that it led to the loss of five fingers on his left hand leading to permanent disability at the young age of 20 years, who is unmarried and has yet to make any headway either in his education or any trade or work, such is the devastating blow it has caused to his life and for which he plead for adequate damages in line with section 19 (d) National Industrial Court Act 2006. That in awarding damages, this Court is urged to put into consideration that the claimant has lost HIS ENTIRE FIVE FINGERS on the left hand which actually is the hand he is accustomed to, as he is a leftist which is a permanent disability. The Claimant also urged this Court to take into cognizance the judgement of this Honourable Court in Suit No. NICN/LA/43/2016 per J. D. PETERS.
On the Claimant’s second issue for determination, the Claimant submitted that having successfully proved the three elements of Negligence against the defendant as enunciated in the celebrated case of DONOGHUE V STEVENSON (Supra) and U. T. B. (NIG) V OZOMENA (Supra), he was urging this Court to grant all the reliefs claimed as claimed. Citing JULIUS BERGER (NIG) LTD V EDE (2003) 8 NWLR PT. 823 PG. 526 CA. and RE-POLEMIS (1921) 3 KB 560. Claimant also adopted his arguments on Issue One.
In reply to the submission of the Defendant in their paragraph 4.2 to 4.29 of the defendant’s written address, the Claimant submitted that there is no contradictions or inconsistency in the evidence of the claimant. That the claimant only gave his Lay-man idea of what happened on 7/7/15. That the claimant is not an Engineer; neither is he a technician with apposite qualification. That the technicality now being pointed out in the above quoted paragraphs of the defendant’s address borders on expertise knowledge for which the claimant does not claim to be and that this Court is a court of equity and justice and not of technicality. Hence, all those assertions in the above quoted paragraphs be discountenanced. Placing reliance on Order 1 Rules 9 (3) of the National Industrial Court of Nigeria (Civil Procedure Rules 2017. The Claimant finally urged this court to grant all his reliefs.
THE DEFENDANT’S REPLY ADDRESS
In response to the Claimant’s final written address, the Defendant filed a reply address which, but for the Defendant’s response to the Claimant’s argument on the competence of Exhibit A7-A13 and the admissibility of the Defendant’s witness testimony, is in the main a rehearse of what the Defendant has already canvassed in its final address. This being the case, the submissions of the Defendant at paragraphs 15.0 – 42.0 are hereby discountenanced.
In response to paragraphs 3.01-3.08 of the Claimant’s Final Written Address, the Defendant said it relies on the record of this Court in respect of proceedings of 15th March 2018, where Claimant’s counsel expressly stated that “we have no objection for now; we will address the court at the appropriate time”. The Court in its records further stated that “Without prejudice to the right of the defendant to address the court on the admissibility and evidential value of the further and better witness statement on oath deposed to by the Claimant, the further and better witness statement on oath is admitted”. The Defendant submitted that Claimant’s submission that upon admission of the statement on oath, without the Defendant’s objection makes the statement admissible is erroneous as the Defendant clearly during proceedings reserved its right to address the Court on why the document should not be countenanced as evidence, that parties are bound by the records of the Court and we urged the Court to so hold.
The Defendant also submitted that notwithstanding the provisions of Order 1 Rule 9 (2) (3) of the Rules of this Court and Section 114 of the Evidence Act, the Claimant’s deposition of 27/2/18 (Exhibits CWA7-CWA12) cannot be relied upon as the said document is unknown to law having been titled “further and better written statement on Oath”. That the title of this document presupposes that there is an existing valid statement to which Exhibits CWA7-CWA12 was deposed to in furtherance of. That the Claimant has no existing/valid witness statement on oath to which Exhibits CWA7-CWA12 can rest on. That Exhibit CWA-CWG, is an undated witness statement which has no evidential value in law and Exhibit CWA7-CWA12 which was purportedly deposed to in furtherance to Exhibit CWA-CWG cannot stand as the law is settled that one cannot place something on nothing and expect it to stand. Citing UAC V Mcfoy, 1962, AC 152, Pg. 25 at Paras C-E.
In response to paragraphs 4.15 – 4.21, i.e the testimony of the DW, the Defendant submitted that it is rather unfortunate that the Claimant does not understand the difference between an affidavit simpliciter and a witness statement on Oath as well as understand the artificial nature of a company as well as the right of an employee of a company to testify on behalf of a company. That the law is settled that the fact that an official of a corporate body was not present when a transaction took place does not affect the cogency of the evidence of such official. Citing the Supreme Court case of kate Enterprises v Daewoo Nig. Ltd, 1985 2 NWLR, (Pt5) at 166 and B.O.N Saleh , 1999, 9NWLR, Pt 618 , Pg 331 and Comet Shipping Agencies Nig. Ltd V Rabbit Nig. Ltd, 2001, 7NWLR, Pt. 712 at 442; where the Court reiterated the well settled principle of law that evidence acquired by the witness in the course of the employment is not only relevant but admissible. The Defendant submitted that DW though employed in October 2017 is an employee of the Company whose testimony is not only relevant but admissible and same does not amount to hearsay evidence. That DW1 in paragraph 1 of his witness statement said “ I am the Human Resource Manager in the Defendant’s Company and by virtue of my position, I am aware and conversant with the facts deposed to in this witness statement”.
Based the case laws cited above, the Defendant submitted that evidence given by DW1 an employee of a company who was not personally involved when the transaction/issue took place is credible evidence and same does not amount to hearsay evidence and urged the Court to so hold.
The Defendant then urged this Court to note that an Affidavit is different from a witness statement on oath simpliciter as upon adoption of the statement on oath the statement becomes the evidence in chief of the Defendant’s witness ( and the Defendant orally was again sworn on oath to say the truth) to which the Claimant had every opportunity to test his veracity on but failed to do under the impression that DW1 not being an employee of the company as at when the incident occurred makes him a hearsay witness. Reliance is placed on Hon. Fabian Okpa V Chief Alex Irek & Anor (2012)-LPELR-8033(CA).
The Defendant thus submitted that DW1 witness statement on oath is different from an affidavit simpliciter and Claimant’s counsel reference to sections 115 (3) (4) and the case of Edu V Cawerd is immaterial as the said sections and case law apply to affidavit simpliciter, and not witness statement on oath which upon adoption by DW1, became DW1‘s testimony. The Defendant urged the Court to note that Claimant’s submission that DW1’s statement not stating whether he believes same to be true is inconsequential as that is why a witness is sworn on oath and made to state that everything he says shall be the truth and nothing but the truth and then adopts his statement thereby making the statement at that point his evidence in chief which Claimant’s counsel had the opportunity to test his veracity/cross-examine him on but chose not to, under the mistaken belief that since he was not in the employment of the company in 2015 his testimony is inadmissible. The Defendant went on that the Claimant’s fallacious submission specifically under paragraph 4.18 that because DW1 under cross examination stated that he did not know the state of the machine before he was employed shows that all he stated in his statement on oath is hearsay hold no water as indeed DW1 had no personal knowledge of the state of the Defendant’s machine prior to 2017 and as stated in paragraph 1 of his statement on oath the facts he deposed to in his statement on oath are facts he is seized of by virtue of his position and in line with the law regarding the right of an employee of a company to testify on behalf of a company not withstanding whether he/she was present when the facts in issue occurred, he has stated the facts pertaining to the matter by virtue of his position which is that the Defendants machine prior to his employment has always been in good working conditions and from his personal knowledge he did not know their conditions prior to his employment. That nothing is ambiguous about his testimony and same is credible and admissible, urging this Court to so hold. The Defendant further submitted that sections 114,115 (2)(3), 125 and 126 of the Evidence Act as relied upon by Claimant are inapplicable in this case as DW1’s statement on oath is not an affidavit simpliciter and same is not subjected to the stringent rules of affidavit, and upon adoption it becomes DW1’s testimony which he can be crossed examined upon to test the veracity. The Defendant finally submitted that all depositions in DW1’s witness statement are credible and admissible as the Defendant is a company and DW though not present when the incident occurred can testify on behalf of the company by virtue of his present employment (position) with the company as it is his position in the company
COURT’S DECISION
I have carefully considered all the processes filed, the evidence led and the submissions of the learned Counsel from both sides. The Claimant’s case is that the injury he sustained in the cause of the Defendant’s employment was the result of the Defendant’s negligence in maintaining its machinery. The Defendant’s case is however that its machine was in good condition, that it had trained its entire staff and that the injury sustained by the claimant was the result of the claimant’s non-adherence to the safety instructions given to him. From the issues joined by the parties, the only issue that calls for the determination of this court is whether the claimant’s injury was the result of the Defendant Negligence.
Before I proceed, let me determine the preliminary issues raised by the Defendant in its final written address. The Defendant referred this court to the proceedings of 21/02/2018 where the Claimant’s witness adopted his written statement on oath which the court discovered was undated and the claimant sought for adjournment to cure the defect. The Defendant said that on 27/02/2018, the claimant had filed what he titled “Further and Better written statement on oath” (Exh. A7-A13) on which the Defendant said that it would address this court in its final address. The Defendants argument in this regard is that Exhibit A7-A13, having been titled “Further and better written statement on oath”, presupposes that there exist a valid written statement on oath to which Exhibit A7 – A13 is an addendum and that since the claimant’s written statement on oath was undated and therefore invalid, Exhibit A7 – A13 lack foundation upon which it could stand and it is therefore invalid. The Claimant’s argument is that Court in NAL Merchant Bank PLC V. Odeche & Associates (supra) while interpreting Section-84 E.A. 1990 (E.A 2011) had held that the court may permit the use of an affidavit notwithstanding that it is defective in form, provided that the court is satisfied that it was sworn before a person duly authorized to administer oath. Claimant also contended his counsel’s application to regularize his process moved on15/03/2018 was not opposed by the Defendant’s Counsel following which this court granted this application. To the claimant, the Defendant’s objection in this regard is technical and that this is a proper circumstance in which technical rules of evidence as contained in S.84 of the E.A 2011 should be jettisoned.
It seems to me that the Learned Counsel is not aware that there is a difference between an affidavit and a written deposition on oath of a witness. It is trite that an affidavit is a statement of fact which the maker or deponent sworn to be true to the best of his knowledge. It is a court process in writing deposing to facts within the knowledge of the deponent; it is documentary evidence which the court can admit in the absence of any unchallenged evidence. A witness statement on oath is not evidence. It only becomes evidence after the witness is sworn in court and adopts his witness statement. At this stage at best, it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the court. If the opponent fails to cross examine the witness, it is taken as the true situation of facts contained therein. See Okpa V.Izck & Anor. (2012) LPELR – 8033. It follows therefore that section 114 of the evidence Act 2011 is not applicable to a witness statement because it is not an affidavit Exhibit A – A6 is the written deposition of the claimant’s witness, it is undated, it belongs to the category of the documents that must be dated to be admissible in evidence. The law is that undated document is invalid except proved by oral/parole evidence the date left out. In the instant case, during the proceedings of 21/02/2018 when Exhibit A- A6 was sought to be tendered, the claimant’s witness was asked if he could remember that he deposed a statement on oath on the 17/03/2017 and the witness confirmed same. This I think has cured the defect in Exhibit A – A6 and makes it valid. Exhibit A7 – A13 have, in my view, now a foundation upon which it stands and is therefore validly admitted. See Wodi V. Differential Aluminum and Steel Company Limited & Anor. (2014) 42 NLLR (pt. 129) 102 (pg. 88 – 89, para. G – A) NIC. This being the case, the Defendant’s objection to the admissibility of Exhibit A7 – A13, is hereby discountenanced. Aside the above, a careful perusal of Exhibit A7-A13 would reveal that it is an independent testimony of the Claimant’s witness, the fact that it was referred to as further and better written statement on oath does not, in my view, affect its relevance and admissibility.
The next wicket of the Defendant’s preliminary argument is that photograph report tendered by the claimant, Exhibit CWF – F2, was wrongly admitted by this court for same having not complied with S. 84 (1) & (2) of the E – A 2011 being a computer-generated evidence. The claimant did not respond to this argument in his final written address.
The Defendant’s argument is hinged on the non-compliance with the provisions of Evidence Act. The Defendant is not doubting the authenticity of Exhibit CWF – F2. Given that this Court is a specialized court which is enjoined by Section 12 of the NIC Act 2006 not to be too formal to such an extent that it can depart from the provisions of the Evidence Act in the interest of justice, I think the justice of this case demands that section 84 of the Evidence Act 2011 should be departed from because the Defendant’s argument is more of technicality than substantial justice. I find and I so hold.
Turning to the merit of the Substantive suit, the Claimant’s case is hinged on negligence resulting from breach of duty of care owed the Claimant by the Defendant. The Claimant is seeking for 7 (seven) reliefs out of which five are declaratory. The onus of proving this case therefore lies on the Claimant. It is basic that in claims for declaratory reliefs, such as the instant case, it is for the Claimant to establish his claim on the strength of his claim and should not rely on the weakness of the defence if any. See AG. Rivers State V. AG. Bayelsa (2012) LPELR 9336 (SC), Nwokidu V. Okanu (2010) 3 NWLR (pt. 1181) 362 Dumez Nig. Ltd. V. Nwokhoba (2005) 18 NWLR (pt.1119) 361 at 373 – 374.
It is the Claimant’s case that he was employed by Defendant which gave rise to a master and servant relationship between them. The Defendant is denying any employment relationship with the claimant. The Defendant is contending that the claimant was employed by SUNVOT Company and outsourced to it (the Defendant). The Claimant did not tender his employment contract with the Defendant, the Claimant even stated under cross examination that he did not have a written employment contract with the Defendant, but he was employed by the Defendant.
Given that there is no any document placed before this court by the Claimant which can establish the existence of employment relationship. The only thing for this court to do is to look into the surrounding circumstances of this case to determine whether there was employment relationship between the claimant and the Defendant or not. It is not in dispute that the claimant was operating machine at the Defendant’s Company, it is also not undispute that the Defendant has insured the claimant against personal accident, Exhibit D8 is the Defendant‘s letter to Roomans Insurance Brokers Limited titled “NOTIFICATION FOR INDUSTRIAL ACCIDENT – SUNDAY SHOGBOLA”, in which the Defendant referred to the Claimant as one of its workers. Now a worker is defined by the Labour Act under S.91 as any person who has entered into or works under a contract with an employer whether oral or written and whether it is a contract of service or a contract personally to execute any work or labour. See Sheena Security Company Ltd. V. Afropak (Nigeria) Ltd. & Ors. (2008) LPER – 3052 (SC). Applying the above definition to the circumstances of this case, I find that there was indeed an employment relationship between the claimant and the Defendant and I so hold.
In an action based on negligence, a Claimant is required to state or give the particulars of the negligence alleged and not to make a blanket allegation of negligence against the Defendant. A Claimant must also lead credible evidence on the specific acts of negligence alleged. The Claimant to succeed, most satisfy three conditions thus:
The Defendant owed a duty of care to the claimant.
The duty of care was breached; and
The Claimant suffered damages arising from the breach.
See Kabo Air Limited V. Mohammed (2014) LPELR – 23614 CA. In the instant case, the claimant has averred at paragraphs 10 –20 of his witness deposition on oath which are in exact terms with his statement of fact thus:
10.That the maintenance ‘of equipment used in the manufacturing process is poor and same has been reported to the Indian Management on several occasions.
11. That I further state that upon my engagement by the Defendant, I had been assigned to operate a machine called E.P.S, which some is over 6ft in height and 8ft in breadth and also a gas cutting blade attached to a mode to enable production.
12. That a blade is attached to the mode of the machine with same blade has a switched down operation against its normal dimension and those modes from the machine produces waste product anytime the machine is malfunction thereby always causing injury to users.
13.That I categorically state that the cutting blade from the mode causes bodily injury but in most cases it was discovered early enough to avert same.
14. That I have personally reported the counting down and the abnormal operation of the machine to the maintenance section for more than (I 0) times and response I get is that same could still be managed.
15. That in fact, the method employed to put on the said machine has been altered from the procedure recommended by the manufacturer of the said equipment to be followed.
16. That I further state that the Method of operating the machine is 100% dangerous and that myself and my colleague exercise extreme caution to operate same on every day.
17.That I aver that the machine is always to be switch on in the morning and same runs until production stops.
18. That the machine was used on rotational basis between myself and other workers that are under the employment of the Defendant.
19. That on a fateful day [i.e. on the 7th day of July, 2015] I was operating the machine.
While the blade attached to the mode which was not well fixed started counting down, during the use of the EFS machine the blade cut off my fingers and the fingers Were cut fingers were left in the machine.
20.That my other co-workers on duty, were scared and ask me to sit down and they cover my hand with my cloth, while my cut off fingers were rotation inside the machine.
It is not in dispute that the Defendant had owed the claimant a duty of care by ensuring that the machine by which the claimant worked was maintained properly at all the times. The standard of an employer’s duty to his worker is to see that reasonable care is taken, the scope of that duty extends to the provision of safe fellow worker, safe equipment’s, safe place of work and access to it and safe system of work. See Wodi Differential Aluminum and Steel Company Limited & Anor (supra) and IITA V. Amrani (1994) 3 NWLR CRE 332) 296.
Now the Claimant’s case is that it was the Defendant’s lack of maintenance of the machine despite with his repeated complaints that led to his injury. The claimant has averred at paragraph 14 of his written deposition on oath that he personally reported the machine’s abnormal working to the Defendant’s maintenance department for more than 10 times. The claimant’s injury was said to have occurred not because the Claimant could not operate the machine but because the machine was faulty and that the Defendant had failed to properly maintain it. The Claimant’s averments regarding the malfunctioning of the machine and the fact of reporting same to the Defendant’s maintenance department were not challenged by the Defendant during cross examination. The law is settled that evidence that has not been challenged under cross examination nor controverted by other evidence must, if credible, be accepted and acted upon by a trial court. See. LSPDC & Anor. V. Nigerian Land & Sea Foods Ltd. (1992) LPELR-1744 (SC) and Odugbose V. Aina (2014) LPELR-23145 (CA)
Applying the above principle, to the case at hand, I find that the Claimant has established the breach of duty of care by the defendant and I so hold.
Now, the 3rd condition is that the claimant must establish that he has suffered dameges arising from the breach of the duty of care. The law is that negligence alone does not give a cause of action, damage alone does not give a cause of action, the two must coexist. See I.M.N.L. V. Nwachukwu (2004) LPELR (S.C). In the instant case, the Claimant has pleaded under paragraph 18 of his statement of facts which is in exact terms with paragraph 19 of his written statement on oath that on the 07/07/2015, he was operating the machine while the blade attached to the mode, which was not well fixed started counting down, that during the use of EFS machine, the blade cut off the Claimant’s fingers. The claimant also tendered exhibit CWF– F2 which shows the picture of the claimant’s hand after the incident. I also had the privilege of seeing the claimant’s hand while he was testifying in this case. Aside this, the Claimant’s injury which he sustained during the cause of the Defendant’s employment is not in dispute. For these reasons, I find that the claimant has established the 3rd element for the proof of negligence and I so hold
Now the evidential burden has shifted to the Defendant to prove otherwise. See Edeani Nwava & Ors. V. Chief Patrick Okoye & Ors. (2008) LPELR (SC). The Defendant’s contention is that it’s machines were always maintained and that the Claimant’s injury did not occur for its negligence but for his failure to adhere to the instructions given to him.
The Defendant’s witness has told this Court that he was employed by the Defendant after the occurrence of the incident. That he was employed in October 2017. The Defendant witness had stated under cross examination that the machines had never malfunctioned nor got faulty, but when asked whether it would be right to say that he was not aware of the state of the machine before he was employed, the Defendant’s witness said it was right. The Claimant’s contention as regards the testimony of the DW is that the DW’s testimony was nothing but hearsay because he was not in the Defendant’s employment when the incident occurred. The Defendant’s reaction is that the law is settled that the fact that an official of a corporate body was not present when transaction took place does not affect the cogency of the evidence of such official. Placing reliance on Kate Enterprises V. Daewoo Nig. Limited (supra) and B.O.N. V. Sale (supra).
It is trite that legal principles established in decided authorities are not to be applied across board and in all matters without regard to the facts and issues submitted for adjudication in a particular case. See Akeredelu V. Abraham & Ors. (2018) LPELR – 44067(SC).
Having carefully examined the facts, circumstances and the decision given in the two cases relied upon by the Defendant, I do not think that the principle established in the two cases are applicable to the case at hand, the two cases cited have established a principle that an agent or servant of a corporate body can give evidence to establish any transaction entered into by that company whether or not such an agent or servant is the one who actually took part in the transaction on behalf of the company and such evidence is relevant and admissible and will not be discountenance or rejected as hearsay. In the instant case the issue before this Court is not proof of a transaction entered by the Defendant, the issue before they Court is about proof of negligence that led to an industrial accident which to my understanding is different from proof of transaction which can be gleaned from the record of a corporate body and for which reason a servant of a company can testify even if he was not in the company’s employment when the transaction took place. In my view, only staff of the Defendant that have personal knowledge of the state of the machine at the material time and who also witness the occurrence of the accident that can testify for the Defendant. I am therefore inclined to believe with the Claimant’s argument that with testimony of the DW in this case is but hearsay which is not admissible. I find and I so hold.
The Defendant, in a bid to prove that it had trained its staff and other persons working for it, had tendered Exhibit D1, the Defendant further tendered Exhibit D2 to prove that its employees and persons working with it were always wearing safety wears, but a careful perusal of Exhibit D2 would reveal that it was issued after the occurrence of the accident as rightly argued by the Claimant’s counsel. Exhibit D2 is in my view an afterthought as it did not indicate when the pictures were snapped. It seems to me that the Defendant has either forgotten or did not know that the Claimant’s case that his injury was caused by the Defendant’s failure to maintain its machines properly. As it stands, the Defendant is left with nothing but the submissions of its counsel contained in its final written address and reply address, which in law cannot take the place of legal proof. See Okuleye V. Adesanya & Anor. (2014) LPELR 23021(SC Bello V.NBN (1993) 6 NWLR pt. 246 pg. 206 and Ishola V. Ayoboye (1998)1 NWLR pt.532 pg.74.
The Defendant had contended that there were contradictions and inconsistencies in the testimony of the Claimant’s witness. Having carefully examined the Claimant’s witness statement on oath and his response under cross examination, I do not think there was any contradiction. The Claimant had explained that it was the Defendant’s lack of proper maintenance of the machine that led to his injury and as rightly submitted by the Claimant’s Counsel, the Claimant was only given his idea of how the incident of 07/07/2015 occurred as a layman.
Turning to the reliefs, I earlier found and held that the claimant has established a case of negligence against the Defendant; it is therefore my humble view that reliefs i, ii, iii and iv are grantable and I so hold.
Relief v is for and order for the payment of N100, 000,000.00 (One Hundred Million Naira) as general and aggravated damages as well as compensation to the claimant for the injury sustained. I wish to point out here that am aware of the decision of this court in suit no. NICN/LA/43/2016 between Mr. Frank Nnamdi V. Leoplast Industry Limited (the Defendant herein) delivered on May,10, 2018 by my Learned Brother Peters JNIC, a case on all fours with the instant one, where his lordship held thus:
“Evidence led shows that the Claimant has lost his entire five fingers. That is a permanent loss. The five fingers cannot be replaced. It is a permanent disability. The Claimant will not be able to use his right hand the way he was used to since the entire fingers are gone forever. There is no market where a finger or any human body part may be purchased to seek a replacement. I note in particular the evidence in chief of CIF2 & CIt’3 which pointed to the occurrence such accidents in the Defendant in the time past with employees of the Defendant sustaining injuries and being treated in the same shabby and inhuman manner as the instant case. Considering the facts, the evidence led and the entire circumstances of this case, I award the sum of Ten Million Naira (=N= 10,000,000.00) as compensation in favor of the Claimant and payable by the Defendant. The plight of the Claimant is the same as the plight of both CW2 & CW3. The evidence led in this case showed the same pattern in the occurrences and incidents of industrial accidents in the factory of the Defendant. In each of these industrial accidents, disabilities were caused to the hapless and helpless employees of the Defendant. This raises issues as to whether the Defendant maintain the necessary safety standards and safe and conducive work environment within the context of the Factories Act. Officials of regulatory bodies, the Federal Ministry of Labour, Officials of the Nigerian Labour Congress and officials of the Ministry of Environment ought to and are requested to beam searchlights on the safety situation in the Defendant…”
Given that the fact and circumstance of the instant case are the same as the one cited above, I think I have no reason to depart from the articulated reasoning of my Learned Brother. It is patently clear that the Defendant has no regard to the safety of its employees and this can be seen from the case under reference which clearly shows similar occurrence of industrial accident due to the Defendant’s failure to maintain the required safety standard. In the instant case, the Claimant’s five fingers have been lost, they have gone forever and cannot be replaced, the Claimant has suffered a permanent incapacity and will remain so till the end of his life. This court is enjoined by section 19 (d) of its Act (National Industrial Court Act 2006) to award compensation or damages in any circumstance contemplated by this Act. I think this is one of deserving cases where such order can be made.
On the whole and for the reasons stated, I find that that the Claimant’s case succeeds and so hold. For the avoidance of doubt, I make the following orders which shall be complied within 30 days from today.
1. The Defendant shall pay to the Claimant the sum of N10, 000,000.00 (Ten Million Naira only) as compensation for the loss of the Claimant’s five fingers.
2. The cost of this suit it put as N300, 000.00 (Three Hundred Thousand Naira).
3. Failure to comply with any of the above shall attract 10% interest per annum until the judgment sum is fully liquidated.
Judgment is entered accordingly.
……………………………………
HON. JUSTICE MUSTAPHA TIJJANI
