LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

OLUFEMI BAMIDELE-VS- NIGERIA ELECTRICITY LIABILITY

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BENIN JUDICIAL DIVISION

HOLDEN AT BENIN

BEFORE HIS LORDSHIP:  HON. JUSTICE A. A. ADEWEMIMO  

DATED  16TH JANUARY 2020                           

SUIT NO.:  NICN/AK/14//2018                       

BETWEEN                                     

OLUFEMI BAMIDELE                    ………………………….     CLAIMANT

AND

(1)  NIGERIA ELECTRICITY LIABILITY

MANAGEMENT LIMITED/GTE          ………………………DEFENDANTS                                                                                                                       

(2)  BENIN ELECTRICITY DISTRIBUTION         

COMPANY PLC              

 

REPRESENTATION:

O.M. Toka for the Claimant

Aguonye Ngozi for the 1st Defendant

  1. I . Abasilim for the 2ndDefendant

JUDGMENT

By a General form of Complaint filed on the 23rd February 2018, the Claimant claims against the defendants the following reliefs:

(i)   The sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira) being the cost of all the medical bills incurred by the Claimant for his treatment and rehabilitation for injuries sustained in the course of his employment to PHCN Plc (the predecessor to the Defendants).

 

(ii)The sum of N2,000,000.00 (Two Million Naira) or any sum standing to the credit of the Claimant as the disengagement entitlements of the Claimant as paid to his colleagues upon the dissolution of PHCN Plc.

 

(iii)          An Order for the payment of the sum of N20,000,000.00 (Twenty Million Naira) compensation to the Claimant for the permanent incapacity and deformity caused to the Claimant in the course of his employment to PHCN Plc (the predecessor to the Defendants).

 

(iv) General damages in the sum of N50, 000, 000.00 (Fifty Million Naira) to the Claimant.

(v) Cost of this action.

The claimant filed along with the complaint all the accompanying processes, i.e. the statement of facts, written statement on oath of the claimant, list of witnesses and documents to be relied upon.

The claimant’s case is that he was employed as a Contract Staff by the defunct Power Holding Company of Nigeria Plc (hereinafter referred to as PHCN Plc) and vide a letter titled “Offer of Contract Appointment” effective from 1st of April, 2008, his appointment was formalized. He averred that on the 10th of September, 2013, he and his team were designated to work at Shagari Village, Akure to distribute Electricity bills and rectify lines with electrical problems. In the course of duty, he stated that his team was approached by a customer at Quarter Guard Transformer, Shagari Village, Akure, who complained of electrical problems on his line and he proceeded to verify and rectify same. In the course of rectifying the fault however, the high-tension wire fell on him, setting him ablaze as a result of which he was severely burnt. The incident left him unconscious for three (3) days and he was treated for third degree burns and other complications. He averred that the Business Manager of the company (Engr. Y. Auta), Senior Manager Distribution, Engr. Akin and the PCM Manager, all visited him in the hospital and were aware of the cost of treatment assessed at the sum of N50,000.00 (Fifty Thousand Naira) bi-weekly. He pleaded that he ended up spending over nine (9) months in the hospital, and had three surgeries at a cost of N150,000.00 (One Hundred and Fifty Thousand Naira) each, added to this, is the bill of N50,000.00 (Fifty Thousand Naira) bi-weekly. In total, he pleaded that he incurred a sum of N1,512,520.00 (One Million, Five Hundred and Twelve Thousand, Five Hundred and Twenty Naira) as his medical bills at the Joe-Jane Medical Centre, Akure asides feeding, transportation and other miscellaneous expenses he estimated at N970,000.00 (Nine Hundred and Seventy Thousand Naira). The claimant further averred that following the persistent refusal of the Management of the defunct PHCN Plc to pay for his medical treatment, the hospital was forced to write to the Ondo State Ministry of Health, detailing the medical bills and indebtedness of the Claimant, all this to no avail. The claimant was later referred to the Federal Medical Center, Owo for further treatment and rehabilitation. He averred further that some of his colleagues and officers in his cadre who were not retained after the privatization of PHCN were paid off and got an average of N2,000,000.00 (Two Million Naira) as a result, but he however received nothing from the management of the company. He pleaded further that he was never officially laid off at any point in time, but the company refused to absorb him back into its employment after the accident. He averred that he was subjected to the worst form of neglect and injustice by the defendants, ranging from non-payment of his medical bills to tactical lay off with his requisite entitlements left unpaid and no compensation for his permanent incapacitation and psychological trauma. The claimant despite all, later instructed his solicitors to write the defendants for assistance, but the defendants ignored his appeal upon receipt of same.  Hence, the claims against the defendants as aforestated.

The 1st and 2nd defendants entered appearance in this suit by filing their respective Memorandum of Appearance. The 1st defendant filed on the 19th October, 2018, while the 2nd defendant filed on 4th June, 2018.

The 1st defendant amended its defence pursuant to the order of Court granted on the 11th December, 2018, wherein it admitted that the claimant was in its employment from 1st April, 2008, but denied his redeployment at various times. It also admitted that the claimant underwent an initial trial before he was appointed as a contract staff and affirmed that the claimant served at Igbara-Oke and Ilesha Road. In response to the statement of facts, the 1st Defendant pleaded that the claimant went outside his official duties on the day of the incident as he was not authorized to rectify faults and he neither sought approval nor notify the office before embarking on the job that resulted in his injury. The 1st defendant added that the claimant did not take into consideration his safety as required of staff on field assignments and failed to take adequate measures to ensure that the power supply in that area was switched off at the time. Further to this, it continued, that assuming that some officers of the company visited him at the hospital, they did so in their personal capacity as no official report was received by the defunct PHCN. The 1st defendant denied receipt of any letter from the claimant and averred that all its legitimate staff were paid off during the privatization exercise.  The 1st defendant concluded that claimant is not entitled to any of the reliefs sought, and his action is unmeritorious, frivolous and unrecoverable and should therefore be dismissed in its entirety.

The 2nd defendant filed its Statement of Defence on 9th July 2010, wherein it averred that the subject matter in this suit took place before the privatization that brought the 2nd defendant into existence, thus, it has no bearing on the 2nd defendant. It added that the claimant must have been on a frolic of his own on the day of the incident, as he failed to prove that he had on a safety gear as required, giving that it was common for the defunct Power Holding Company of Nigeria (PHCN) to issue safety gear to its staff on field assignments and also to switch off power in such areas whenever they are working on electric lines. The 2nd defendant further asserted that it did not inherit the liabilities of the defunct PHCN, and added that proper parties are not before the Court, and no reasonable cause of action is disclosed against it. The 2nd defendant concluded that this Court lacks jurisdiction to entertain this suit as it is baseless, frivolous and lacking in merit.

The Claimant filed a Reply to the 1st defendant’s statement of defence on the 13th February 2019. The claimant pleaded in its Reply that all precautionary measures were taken before he climbed the pole as required to work on a low-tension wire. He stated further that it is only when work is required to be done on High-tension wire that a power outage permit is needed from the control room, and the light in such vicinity will be switched off.  He stated in the Reply that a panel was set up after the accident to verify if he had his safety equipment on at the time of the incident, and a report was equally issued confirming same. He further asserted that he was a legitimate staff of the defunct PHCN Plc and maintained that he and his team members were assigned to duty on the 10th September, 2013, by the Head of Department of Distribution, Engr. Akinlabi Amos and he was never officially laid off by the company at any point. He averred that the conditions of his health after the accident is a well-known fact amongst staff of the company at the Igbara-Oke/Oyemekun district office and they all contributed financially to help him offset his bills in the hospital.

The claimant also filed a Reply in response to the 2nd defendant’s statement of defence on the 5th October 2018, wherein he averred that the 2nd defendant took over the defunct PHCN and the distribution of electricity in Ondo State after the privatization. He averred further that he was using a fibre ladder and had his belt, boot, hand gloves on at the time of the accident, after the accident, a panel was set up by the company to verify if he had his safety equipment on at the time and this was subsequently confirmed. He stated that while some staff of the defunct PHCN were paid severance packages and dues by the 2nd defendant who inherited the company, some were retained. He was however not retained while his severance package was not paid, he was not also officially disengaged by the company. He concluded that the proper parties are before the Court as the 1st defendant took over the management and settlement of the defunct PHCN plc, while the 2nd defendant took over the distribution of electricity in Ondo state and its envronments. He averred that the 2nd defendant was responsible for the payment of severance packages and dues paid to staff of the defunct PHCN plc after they were laid off and the privatization exercise commenced, hence this suit discloses reasonable cause of action against the 2nd defendant.

The trial in this case commenced on 27th March, 2019, with the claimant calling a subpoenaed witness, one Engr. Amos Akinlabi as CW1, and he was cross examined. Mr. Ososami Abimbola later testified as CW2, and the claimant as CW3. They adopted their witness statement on oaths and tendered several documents which were admitted and marked Exhibits BD1 – BD14, and were also duly cross examined.

The two defendants opened their defence  on the 21st May, 2019, with the 1st defendant calling Binnie Chigbue as DW1, while the 2nd Defendant called Gbolahan Adekanbi, Oluwaseun Adebanji, and Ebenezer Fapese as DWs 2, 3, and 4 respectively.  They were all duly cross examined and the defence closed their case. The case was adjourned for the adoption of final written addresses.

In compliance with the rules of this Court, parties caused their final written address to be filed. The 1st defendant’s address dated 8th July, 2019 was filed on the 10th July 2019, and adopted by Aguonye Ngozi Lauretta of counsel at the hearing on the 18th of October, 2019 wherein he formulated four (4) issues for the determination of the Court viz:

  1. Whether the Claimant, in the absence of establishing the termination of his employment, can maintain an action for disengagement entitlement against the Defendant.
  2. Whether in view of the panel report (EX ED1), the Claimant is entitled to reimbursement of medical bills incurred in the cause of his treatment.
  3. Whether the Claimant is entitled to any compensation for permanent incapacity and deformity in view of his indictment by the panel report (EX ED1) of the incident.
  4. Whether the Claimant is entitled to any damages and/or cost of the action in view of the evidence before the court.

On issue one, learned counsel submitted that a careful consideration of the Claimant’s processes and evidence before this Court discloses the Claimant was a contract staff and his employment was never formalized. He added that it is the duty of a servant who complains that his employment was terminated to prove in what way his contract of employment was breached, reliance was placed on the cases of Idoniboye – Obu Vs. Nnpc (2003) 2 NWLR (Pt. 805) 589, P. 73 Para G-H) – Briggs Vs. Harry (2016) 9 NWLR (Pt. 1516) P. 45 At P. 50, Para. 5. Counsel maintained that the Claimant did not establish that he was a confirmed staff of the defunct PHCN as at the time of the incident and is thus not entitled to the claim and reliefs sought. Learned counsel submitted that it is trite law that he who asserts must prove, and the Claimant has been unable to prove his claim that some of his fellow contract staff who were relieved of their positions and not retained by the 2nd defendant were paid a sum of N2,000,000.00 (Two Million Naira) as pleaded.

On issue two, counsel submitted that there are two major issues at the heart of any personal injury case and these are liability and damages, he continued that the Claimant pleaded and relied on an Investigative Panel Report of the incident by the defunct PHCN. Learned counsel submitted that from the Panel Report i.e. Exhibit BD1, the Claimant’s action was not only illegal but also a gross misconduct that violated the Rules and Regulations of the Company, he referred to pages 16 – 17 of the Report and cited International Bank Of West Africa Ltd v. Imano (Nig.) Ltd& Anor. (2001) 3 SC 182, stating that the position of the law is that where evidence led by a party is unchallenged or uncontroverted it stands admitted. The counsel submitted that the Claimant was specifically assigned to the job of distributing MD Electricity bills, but rather than diligently carry out his duties for that day, he went on a frolic of his own to change service wires and add an additional phase for a customer which falls outside the Claimant’s job responsibilities. He submitted further that the defendants are not liable for the accident looking at the Panel Report; the evidence of CW1 and DW1, and in particular, that of DW2 who stated that the Claimant was with him on that fateful day but later asked to be excused to attend to personal issues, which later turned out to be a ruse for him to embark on the illegal assignment, thus he surmised that the Claimant cannot sustain his claim and same cannot be enforceable against the 1st Defendant.

On the third issue, counsel submitted that it is the law that for an employer to be liable for personal injury suffered by an employee, it must be proved that the accident arose out of and in the course of his employment, he relied on More vs. Manchester Liners Ltd (1910) AC 498, and reiterated that from the Panel Report on the incident, the Claimant went outside his job responsibilities for that day, and his action was illegal and amounted to gross misconduct.

On the fourth issue, counsel relying on the case of Shell Petroleum Development Co. (Nig.) Ltd. Vs. Teribo & Ors (1996.) 4 NWLR (Pt. 445) 657 at p. 680 argued that the 1st Defendant was not responsible in any way for the injuries sustained by the Claimant and the claimant was unable to prove same. He added that it is settled law that where the employer has a complete defence to the claims of an employee, the employee will not be entitled to damages.  He cited Eze vs. Spring Bank Plc. (2012) 20 WRN p.15 at p. 35 Line 10, and argued further that it is the law that the issue of damages can only flow where there is a breach citing Oluseni Adesina vs. Air France (2013) 47 WR, p. 113 ratio 9 at 119. He finally urged the court to dismiss the Claimant’s case with cost.

Samuel Abasilim, Esq. of counsel for the 2nd Defendant adopted his address filed on the 6th June 2019, at the hearing, wherein he formulated three issues for determination to wit:

 

  1. Whether from the totality of Evidence adduced before this Honourable Court, the Claimant has any valid or Legal Claim against the Defendants.
  2. Whether it was the negligent act of the defendant that caused the said accident?
  3. Whether accidents are generally founded on negligence.

 

Learned counsel for the 2nd defendant submitted that from the totality of the evidence adduced in this suit, the claimant was on a frolic of his own and cannot turn around to hold the defendants responsible for his misfortune, he further submitted that the claimant has no cause of action against the defendant and placed reliance on the Supreme Court decision in Lagos State Bulk Purchase Corporation v. Purification Techniques Nigeria Ltd [2012] 52 NCCQR 274 at 292. He added that the claimant has woefully failed to establish through credible evidence any of the reliefs sought. On the claim for damages, counsel submitted that the assessment of damages should be based on the pleadings and the evidence adduced, and on this the claimant has failed to support same with credible evidence. Furthermore, Counsel pointed out that the claimant did not provide any handbook of the defunct PHCN in support of his claims and entitlement, hence his claim for damages is bound to fail. He added that the claimant must prove that the accident was as a result of the negligence of the defendant, but from the totality of the evidence before this Court, there is no accrual of liability on the part of the 2nd defendant, more so, it has to be established that the 2nd defendant owed the claimant a duty of care on the illegal duty he embarked upon for his personal gain.  He concluded that the claimant has not made out any legal claim against the 2nd defendant, hence the case should be dismissed in its entirety and with substantial cost.

 

Busayo Olajide Esq, of counsel for the claimant adopted his final written addressed dated 9th September, 2019 at the hearing, wherein he formulated four issues for determination to wit:

  1. Whether an employee who incurred permanent disability in the course of employment is entitled to medical treatment and compensation from the employer?
  2. Whether failure of an employer to provide medical care to an injured employee in the course of his employment entitles the employee to damages?
  3. Whether the claimant is entitled to disengagement benefits following the tacit layoff in the wake of PHCN dissolution?
  4. Whether a party can lead evidence on facts not pleaded?

Claimant’s counsel pointed out that there is need to determine who an employee is and whether employment includes contract appointments, he cited Section 73 of the Employees Compensation Act, and pointed out that the claimant, was issued a letter of appointment; sponsored by the management to attend workshops and received queries based on the defunct PHCN conditions of service.  Learned counsel referred to pages 16 and 17 of Exhibit BD1 which clearly indicted the claimant based on company’s conditions of service, and posited that the claimant was considered a staff under the defunct PHCN conditions of service, and worked there from 2008 – 2013. According to counsel, all these facts were attested to by defendants’ witnesses irrespective of the nuances that he was a contract staff. He therefore surmised that it is not in doubt that the claimant was a bonafide staff of the defunct PHCN Plc.

Counsel cited Section 7 of the Labour Act and queried whether an employment that is continuous in nature can be regarded as a contract employment?  He cited C.D.W.S. & Anor v.  Ogwuche (2016) All FWLR (Pt. 848) 684 at 703, and of Nwakhoba v. Dumez (Nig.) Ltd (2003) FWLR (Pt. 179) 1188, and submitted that it is crystal clear that any employer who failed to give his employee a written statement of the terms and conditions of his employment three months after the beginning of his employment is estopped from relying on the failure of the employee to tender in evidence the terms and conditions of his employment.  Learned Counsel for the claimant submitted that the claimant at all material times in the eyes of the law and equity was an employee of the defunct PHCN Plc.  He therefore argued that a contractual relationship existed between the claimant and the defendants, and added that there was a nexus between the claimant’s duties and the act that led to his accident, thus the accident arose out of the employment and was in the course of his employment.

Learned counsel made reference to the testimonies of Mr Adekanbi (DW2) and Mr. Ososanmi (CW2), who attested to the fact that the claimant observed the necessary safety measures; the claimant checked to ensure that the circuit has been de-loaded; he used a fiber ladder and had his belt, boot and hand gloves on during the incident. Counsel therefore raised the following poser; “Is the claimant who incurred permanent disability in the course of employment entitled to medical treatment and compensation from the defendants? Counsel reiterated that the claimant was denied medical treatment and compensation by his employers and was left to fend for himself even though the injury sustained was a result of an accident that occurred in the course of his employment.  It is worthy of note that at the time of the accident/injury, the claimant was doing an act incidental to his scope of work.  He further defined compensation as an amount payable for service provided in respect of a disabled employee and includes rehabilitation.   Where an action is predicated on a claim for compensation by an employee in respect of injury and/or accident suffered under an employment, the relevant principle or provision of law are the Employee Compensation Act 2010 and the duty of care owed by the employer to the employee under the common law of contract. He posited that under common law, an employer owes an employee a duty of care, consequently, an injured employee who becomes permanently disabled as a result of injury sustained under an employment is entitled to compensation. He placed reliance on the provisions of section 2(1), section 4(4)(b, Section 5(1)(2)  & (5) Section 7(1) & (2), section 13(1) & (2) and Section 22(7) & (8) of the Employee Compensation Act, and argued that it is settled that an employee is entitled to compensation in respect of any injury suffered, especially one resulting in a permanent disability.

On issue two, counsel cited the cases of Iyere v.  B.F.F.M. Ltd (2009) All FWLR (Pt. 453) 1217 and Nigerian Ports Authority v. Saidu Ahmed (2017) All FWLR (Pt. 892) 1059 at 1082. and submitted that the claimant is entitled to damages as compensation for the failure of his employer to provide medical care. He urged the court to so hold.

On issue three, counsel pointed out that the claimant had been in the employment of the defunct PHCN Plc from 2008 till 2013 when the accident occurred, and was neither retained during the privatization exercise nor paid off, these facts were admitted by the efendants. He cited the case of Intels (Nig.) Ltd & 2 Ors v. William E. Bassey (2013) All FWLR (Pt. 675) 376 at 387, and submitted that having not been retained after the privatization exercise, the claimant is entitled to his terminal benefits like his colleagues in the defunct PHCN Plc.

On issue four, counsel submitted that it is the law that evidence not covered by pleadings goes to no issue.  He cited Transocean Support Services Nig. Ltd v. Mr. Felix Omelime (2018) All FWLR (Pt 927) 89 at 119 and Fayemi v. Oni (2009) All FWLR (Pt. 472) 1122.  He reiterated the long-held position of the law, that evidence which is at variance with pleaded facts are inadmissible and ought to be rejected by the court. He argued that it is the singular duty of counsel to object to inadmissible evidence, but where inadmissible evidence is admitted, it is the duty of court to treat such evidence as if it was not admitted when delivering Judgment. He cited the following cases in support of his argument, Aisha Jummai Alhassan & Anor  v. Mr. Darius Dickson Ishaku & 2Ors (2017) All FWLR (Pt. 866) 299 at 266 and of C.N. Okpala & Sons  v. Nigerian Breweries Ltd (2018)  All FWLR (Pt. 928) 1 at 15.

Counsel to the claimant referred the court to the 2nd defendant who after the closure of the claimant’s case decided to bring in additional witnesses and new evidence which were not supported by its pleadings, thereby presenting a case different from what was set out in its pleadings.  He submitted that the evidence led on facts not pleaded by the 2nd defendant goes to no issue and should be discountenanced by the court. Finally, counsel submitted that an employee who was injured in the course of his employment should not be left without assistance to face the economic and social consequences of the incident. He therefore urged the court to grant all the reliefs sought by the claimant.

I have carefully considered all the processes filed by parties in this case, the documents tendered and the written submissions of counsel in their final address. I have thereafter resolved that the issues that would best determine this suit are:

  1. Whether or not the claimant has established a case of negligence against the defendants.
  2. Whether or not the claimant is entitled to the reliefs sought.

 

It is imperative to delve into the background of the employment relationship between the parties in this suit.  It is the case of the claimant that he was employed as a contract staff vide his letter of redeployment dated 31st March 2008, by the defunct Power Holding Company of Nigeria (PHCN), that whilst in the employment, and precisely on the 10th day of September, 2013, he and members of his team were engaged in the distribution of electricity bills and rectifying lines with electrical problems, when they were approached by a customer who complained of an electric problem on his line, which they proceeded to rectify. It was while working on the fault after climbing the pole that a high-tension wire fell on his head causing the accident wherein he suffered severe burns, that left him unconscious for 3 days. The claimant stated that he was left abandoned by his employer despite his incapacity, and was unable to cater for his family thereafter.  The 1st defendant’s case on the other hand is that the defendant was employed as a contract staff from 1st of April 2008; and he was not authorized to rectify any electrical fault for customers and is therefore not entitled to the reliefs sought. The 2nd defendant’s case is that the injury of the claimant took place prior to the privatization exercise, which gave birth to the 2nd Defendant, and as such the 2nd defendant is not liable in anyway. The 2nd defendant further asserted that the claimant acted outside his scheduled duty on the day of the incident.

It is conspicuous from the evidence presented before this Court that the Claimant was employed by the defunct PHCN and redeployed to the New Fault Reporting Centre at Shagari Village vide a letter dated  31st March, 2008 (Exhibit BD2), he was thereafter offered appointment as a contract staff in the defunct PHCN (Exhibit BD3) with effect  from 1st April, 2008. The pertinent issue to resolve is, whether as a contract staff and not a full-fledged staff he is entitled to the reliefs sought in this suit.

It is trite that a contract staff is a temporary or casual worker, and he is equally an unconfirmed employee whose employment can be determined at the expiration of a fixed term pre-determined by the parties, Ogbonna v. Neptune Software Limited [2016] 64 NLLR Pt.228 511, Simeon Ihezukwu v. University of Jos &2 Ors [1990] 4 NWLR, NITEL Plc v. Akwa [2006] 2NWLR [Pt. 964] 391; L.C.R.I v. Mohammed [2005]11 NWLR (Pt 395) 1 CA.

In Shena Company Ltd v. Afropak Nig.Ltd [2008] 34 NSCQR Pt. II 1287, a worker was defined as follows;

“A Worker is defined by the Labour Act as any person who entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied, oral or written and whether it is a contract of service or a contract personally to execute any work or labour…”

It is clear from the above that the appellation “contract staff” is immaterial, what is relevant is whether or not he was at all material times before the alleged incident a worker in the defunct PHCN. I find that the argument of the 1st defendant that the claimant’s appointment was never confirmed and formalized as a legitimate staff of the company at the time of the incident cannot exonerate them and will not preclude the defendants liability in view of section 91 of the Labour Act, and  the following cases; Evans Bros. Nig. Publishers Ltd v. Falaiye [2003] 13 NWLR (Pt.838) 564, New Nigerian Bank Plc v. Osoh [2001] 13 NWLR (Pt.798) 232.As the definition of an employee includes a contract staff

Therefore, to this end, I find that the above cited provisions of the Labour Act supports the the claim of theclaimant and he can rightfully ventilate his grievance against the defendants in this suit. I so hold.

On the contention of the 1st defendant that there is no privity of contract between it and the claimant, It is clear from the evidence adduced before this Court that the 1st and 2nd defendant took over the defunct PHCN, while the 1st defendant took over the management and settlement of the company, the 2nd defendant took over the distribution of electricity in Ondo State, as such, both the 1st and 2nd defendant sprouted out from the defunct company and thus have a stake in this suit. This action is therefore maintainable against both defendants.

It is pertinent to point out at this stage that, during the course of trial, the claimant’s counsel raised an objection to paragraphs 7-15 of DW4’s statement on oath, on the ground that they were not pleaded and admitting same in evidence would amount to over-reaching. It is his contention that DW4 one Mr. Ebenezer Fapese, called by the 2nd defendant attempted to introduce new facts in the cited paragraphs of his testimony. The 2nd defendant’s counsel countered this by arguing that the cited averments were pleaded in Paragraphs 4-9 and 11 of the 2nd defendant’s statement of defence. This Court thereafter deferred ruling on this issue till judgment and ordered parties to address it further on the said issue, in their Final Address. The 2nd defendant argued the issue in his final submissions, to which the Claimant also responded. I have carefully read the submissions of both counsel on this issue and found that the question for determination is whether evidence not pleaded in the statement of defence can be introduced in a written statement on oath? Differently put, whether the 2nd defendant can rely on facts not pleaded in the statement of defence but mentioned in the witness statement on oath?

It is trite that pleadings do not constitute evidence, the same way averments contained in the statement of claim or defence that is unsupported by the evidence  of a witness goes to no issue, in other words, lack of evidence to back up pleadings during the course of trial means that the pleaded facts are unproven and without foundation. See the case of Banjoko &Ors v. Ogunlaja &Anor [2013] LPELR -20373 (CA). The law is that a party who pleads a fact must adduce evidence in support of the pleaded fact. Pleadings and the most forensic eloquence of a brilliant lawyer cannot be substituted for an unproven fact, as such will be deemed abandoned, see the case of Ironbar v. Cross River Basin Rural Development Authority [2004] 2 NWLR Pt, 173) 359 at 375 C-F.  It has also been held that “…averment are moribund, this is because since the owner has not given life to the pleadings by way of leading evidence in proof of the averment therein, they are as good as not been written at all in the first place. The sentences, words and the letters which make up the pleadings are dead, completely dead and of no evidential or probative value”, See the cases of Ojoh v. Kamaly [2005] 18 NWLR (Pt.958) 523 at 565G-H, Ifeta v Shell [2006] SCNJ 111 at 119.

Flowing from the facts in the instant case, and after a thorough scrutiny of the cited paragraphs, it is clear that paragraphs 7-14 of DW4’s written statement on oath were not pleaded, the argument of the 2nd defendant that they were, in Paragraphs 4-9 and 11 of the 2nd defendant’s statement of defence is untenable, there is no correlation between the two  paragraphs of the written statement on oath and the statement of defence at all, the testimony of DW4 in paragraphs 7-14 was not rooted in the statement of defence and does not have any leg upon which the testimony can stand. It is the position of the law that evidence must rest on pleadings and it is consequent upon this, that I find that the averments of DW4 in paragraphs 7-14 of his written statement on oath are un-pleaded, inadmissible and are therefore discountenanced. I so hold.

On issue one, there are abundant authorities on what the tort of negligence entails, howbeit, the Oxford Advanced Learner’s Dictionary 5th Edition has explained it to mean “lack of proper care and attention, careless behavior”, see the case of UTB v. Ozoemena [2007] All FWLR (Pt.358) 1014 @1024. In forensic speech, Negligence can be defined in three ways -(a). It is a state of mind in which it is opposed to intention. (b) Careless conduct and (c) Breach of duty of care imposed by common law and statute resulting in damage to the complainant. In Black’s law Dictionary, 9th Edition at pages 1133 to 1135, twenty-nine (29) types or categories of negligence, are stated therein, page 1133 thereof defines it as follows, Negligence is generally defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly or willfully disregardful of others’ rights. It is the omission to do something which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would not do. The Apex Court in  Oho v. Ghanaro [2006] 10 NWLR (Pt.987) 173 has described negligence as a fluid principle which has to be applied to the most diverse conditions and problem of human life, See the case of  Hay (or Bourhill) v. Young [1943] AC 92 at 107, Blyth v. Birmingham Waterworks Co. [1856] 11 Exch. 78 at 784. Furthermore, the Court of Appeal in Musa v. Nigerian Army [2016] LPELR-41595 (CA) has explained negligence as carelessness, disregard, default inadvertence, indifference, inattention, laxity, omission, oversight, shortcoming, slackness, remissness, dereliction, heedlessness, forgetfulness and thoughtlessness”, the Court noted that the term denotes culpable carelessness on a person’s part. See Kabo Air Limited v. Mohammed [2015] 62 NLLR (Pt 220) 756 CA, Diamond Bank Plc v. Partnership Investment Co Ltd [2009] 18 NWLR (Pt 1172) 67; Okwejiminor v. Gbakeji [2008] 5 NWLR (Pt 1079) 172.

The most fundamental ingredient of tort of negligence is the breach of duty of care, which must be actionable in law and not a moral liability, and I agree with the defence that until the claimant can prove by credible evidence the actual breach of the duty of care, the action must fail, see UTB v. Ozoemena (supra). The Court of Appeal in SPDC Nig Ltd v. Nwagara [2018] LPELR-43732 CA, whilst considering whether or not the appellant in that case was negligent, had recourse to the decision of the Court in the case of Omotoye v. ABC (Transport Co. Ltd) [2009] LPELR-8269(CA) where his Lordship Kekere-Ekun JCA (As he then was) admirably restated the principle/basis of liability in tort of negligence thus:

“In order to establish a claim for damages for negligence, the claimant must plead and prove: (A) that the defendant owed him a duty of care; (b) that the defendant failed to exercise due care; and (c) that the damages was as a result of the negligence of the defendant.

The authorities are clear that a successful plea of negligence consists of proving the tripod issues of duty, breach and resultant damages. The issue of “duty of care” is synchronous with a claim in negligence, See Abubakar v. Joseph [2008] 12 NWLR (Pt 1104) 307, Iyere v. Bendel Feeds and Flour Mills Ltd [2008] 18 NWLR (Pt 119) 300, GKF Investment Nigeria Ltd v. Nigerian Telecommunications Plc [2009] 15 NW:R (Pt 1164) 344, the details of the alleged negligence is required and it can neither be presumed or inferred; where there is no notional duty to be exercised by the defendants, negligence will have no legs to stand and any claim premised thereon will fail.

Now, an important question that requires an answer here is, whether or not the claimant has established before this Court that the defendants owed him a duty of care, thus necessitating the injury he sustained? There is no doubt that the injury sustained by the claimant occurred whilst he was rectifying lines with electrical problem at Quarter Guard, Shagari Estate for a customer (AY tech) who approached him to rectify same, based on the evidence adduced at trial. It is also on record that while working on the low tension wire, the high tension wire fell on his head as a result of which he sustained severe burns and was rushed to the hospital, he underwent three different surgeries at Joe-Jane Medical Centre Akure,

and further rehabilitation at Federal Medical Centre Owo, he tendered Exhibits BD5, BD7, BD8 and BD9 in support of these facts.  The defendants on the other hand contended that the claimant was not assigned to Quarter Guard, Shagari Estate, rather he was on a frolic of his own. They further contended that did not inherit the liabilities of the defunct PHCN, and added that the claimant did not take adequate measures to ensure that the power supply in the area was switched off before rectifying the faulty line, and to compound the issue, he was not wearing the issued safety gear.

In determining whether or not the claimant was reckless and careless as asserted by the defendants, Exhibit BD1 (the Report of the Committee that investigated the incident), comes into play. A thorough scrutiny of Exhibit BD1 however reveals that the sitting of the committee was held behind the claimant and therefore lacks any evidential value as the findings of the panel are just mere findings and not a result of a fair trial.

Consequent upon this, I find that the Report of the committee as encapsulated in Exhibit BD1 is untenable as evidence of carelessness and recklessness on the part of the claimant.

Comparatively, the purport of the testimony of CW2 is cogent and are succinctly espoused as follows;

  1. CW2 was on the same team with the claimant when a customer approached them and implored them to assist him with a fault on his line,
  2. The Claimant was equipped with the safety materials provided, when he climbed the ladder and he was electrocuted in the process of the repairs,
  3. It is normal for customers to call staff of the defunct PHCN to fix faults on their lines while on duty.

It is clear that in a service employment of this nature, field officers can be given any instruction to carry out any activity by their superior, and any customers may need the services of field officers at any given time. The claimant and members of his team were designated to share bills, but a customer needed their attention while on the field, and this might be likened to an emergency, for which they must respond. It is clear that by the nature of the relationship between the claimant and the company, a service relationship exists, the general requirement of law is where there exist a service relationship between the employer and the employee, the former is under a duty to take reasonable care of the safety well-being of the latter in all circumstances of the case, so as to forestall any harm to others or expose him (employee) to unnecessary risk. The level of duty of care is the same as the employer’s common law duty of care in the law of negligence, see Alhaji Manu Bello v. Dadan &Anr [2016] LPELR040337 (CA). Under the law of negligence or of obligation, the word “care” means the conduct demanded of a person in a given situation. Typically, this involves a person’s giving attention both to possible danger, mistake and pitfalls and to ways of minimizing risks, see the case of Nigerian Ports Plc v. Beecham Pharmaceutical PTE Ltd [2013] 3 NWLR (Pt 1333) 454, Yabo Air Ltd v. Mohammed [2015] 5 NWLR (Pt 1451) 38. It is trite that an employee owe their employees and clients a duty of care to exercise reasonable care and skill in rendering the services for which they are engaged. See the locus classicus case of Donoghue v. Steveson [1932] AC 562, Orhue v. N.E.P.A [1998] 7 NWLR (Pt.557) 187. The Claimant in the case must proffer evidence on the three conditions required that will give rise to liability in negligence, and this was done based on the preponderance of evidence or on balance of probabilities to succeed. Once these requirements are satisfied, the defendant is liable in negligence. See the case of Luthansa German Airlines v. William Ballanyne [2013] 1 NWLR (Pt 1336; GKF Investment Nigeria Ltd v. Nigerian Telecommunications Plc [supra]. [1965] NMLR 178 and Green Pack Rubber Ind. Ltd v. Ossai [2044] 2 FWLR (PT. 194) 668. The contention of the defendants’ witnesses that the claimant was issued safety gears which he did not use was not substantiated by credible evidence. The claimant has on the balance of probabilities established before this Court that the defendants owed him a duty of care that was not exercised after the injury he sustained. After considering all the issues canvassed by parties in this matter as well as the law on this point along with the facts and evidence before me, it is proper for a finding of neglect to be made against the defendants in this suit. It is in consequence of this, that I find that the claimant has succeeded in making out a case of negligence against the defendants. I so hold.

On issue two, the claimant is claiming the sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira) being the cost of all the medical bills incurred by the Claimant for his treatment and rehabilitation for injuries sustained in the course of his employment to PHCN Plc (the predecessor to the Defendants). A claim of this nature falls under the category of special damages, and the law is that special damages must be strictly and specifically proven, see the  cases of Agunwa v. Onuke [1962] 1 All N.L.R 537, Shell B.P v. Cle [1978] 3 S.C 183, On what constitutes special damages, Fabiyi JSC defines special damages in the Case of Ahmed &Ors v. CBN [2012] LPELR-9341 (SC) as follow:

“Special damages have been defined as those which are the actual, but not necessary result of the injury complained of, and which infact follows it as a natural and proximate consequence in that particular case that is by reason of special circumstances or condition”,

See Twin Coach Co v. Chance Vought Aircraft Inc. 588, 163 A-2d, 278, 286. Special damages do not arise from the wrongful act itself, but depends on circumstances peculiar to the infliction of each respective injury. To be recoverable, they must flow directly and immediately from the breach of contract and must be reasonably foreseeable. It is trite law that special damages must be strictly proved, see the cases of Agunwa v. Onukwe [1962] 1 All NLR 537, Shell B.P V. Cole [1978] 3 SC 183, W.A.E.C v. Koroye [1978] 2 S.C 45, Renolds v. Rokonoh [2005] 10 MJSC 159. The proof of special damages is not subjected to the claim being controverted or challenged. There is a strict proof of special damages where there is the production of receipts as evidence of payment , see the case of Universal Trust bank of Nigeria v. Fidelia Ozoemena [2007] LPELR-3414 SC. Also, Bowen LJ in the case of  Radcliffe v. Evans [1982] 2 Q.B 524 CA at 528 posited that special damages are particular damages (beyond general damage) which result from the particular circumstances of the case, and for the claimant’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial, see also Saleh v. Bon Ltd [2006] LPELR-2991 SC, Xtoudos Services Nigeria & Anor v. Taisei (W.A) Ltd &Anor [2006] LPELR-3504) SC. Flowing from the above, the law is also that  there is a strict proof of special damages where there is a production of receipt as evidence. See the case of Universal Trust Bank of Nigeria v. Fidelia Ozoemena [2007] NWLR (Pt.1022) 448. In the instant case, the claimant tendered a medical report (Exhibit BD6) dated 2nd June 2014 signed from the medical director of Joe-Jane Medical Centre, Akure addressed to the Ministry of health, Ondo State detailing that the sum of One Million, Five Hundred and twelve Thousand, Five Hundred and Twenty Naira Only (N1,512,520) as the total bill for the claimant’s surgery, antibiotics and ICU care, and that the claimant had 3 episodes of partial thickness skin grafting . Also from Exhibit BD8, it shows some receipts issued by Joe-Jane Medical Centre Akure, to the claimant for miscellaneous expenses, I took liberty to compute the whole money expended by the claimant in Exhibit BD 8, it amounted to the sum of the total sum of Two Hundred and Eighty One Thousand, Five Hundred Naira (N281,500). Therefore, a summation of the initial One Million, Five Hundred and twelve Thousand, Five Hundred and Twenty Naira Only (N1,512,520) in Exhibit BD6 and Two Hundred and Eighty-One Thousand, Five Hundred Naira. (N281,500) in Exhibit BD8 amounts to the sum of One Million, Seven Hundred and Ninety-Four Thousand and Twenty Naira (N1,794,020) . I find therefore that the claimant is entitled to the sum of One Million, Seven Hundred and Ninety-Four Thousand and Twenty Naira (N1,794,020) being the cost of all the medical bills incurred by the Claimant for his treatment and rehabilitation for injuries sustained in the course of his employment to the defunct PHCN Plc to be paid by the Defendants. I so hold.

The claimant also sought the sum of N2,000,000.00 (Two Million Naira) or any sum standing to the credit of the Claimant as the disengagement entitlements as paid to his colleagues upon the dissolution of PHCN Plc. It is the submission of the 1st defence counsel in paragraph 4.1 – 4.5 of his final argument that  claimant was a contract staff and his employment was never formalized, thus he did not establish that he was a full staff of the defunct PHCN at the time of the incident and did not present any evidence in proof that some of his fellow staff were paid the sum of N2m as pay off.  I am inclined to agree with the submission of the 1st defendant in this regard, as it is common place in evidential law, that all assertions must be proved. The claimant did not place anything before this Court or adduce any credible evidence on his entitlement to the said sum of N2,000,000.00 (Two Million Naira), he did not also call any evidence from these “colleagues” to prove that they were indeed paid the said amount.  The claimant retains the duty to lead credible evidence in proof of his claim but failed to discharge this burden, see the case of Peter Ojoh v. Owuala kamalu &Ors [2005] LPELR-2389 (SC), and Section 135-137 of the Evidence Act. It is upon this premise that I find that the claim for the sum of N2,000,000.00 (Two Million Naira) or any sum standing to the credit of the Claimant as the disengagement entitlements of the Claimant fails. I so hold.

 

The Claimant also sought an order for the payment of the sum of N20,000,000.00 (Twenty Million Naira) compensation to the Claimant for the permanent incapacity and deformity of the Claimant in the course of his employment and also general damages in the sum of N50,000,000.00 (Fifty Million Naira). The two reliefs are similar and will therefore be treated together. It is trite that General damages are only awarded in respect of pecuniary loss which has been sustained. It is the kind of damages which the law presumes to be the consequence of an act complained of and unlike special damages, a claim for general damages does not need to be specifically pleaded or specially proved. It is also settled law that apart from damages naturally resulting from a breach, no other form of general damages can be contemplated see the case of Nigeria Produce Marketing Board v. Adewunmi [1972] All NLR (Pt.11) 433, Gari v. Seirafia (big) Ltd [2008] 2 NWLR (Pt 1070) 1 at P.22, Para C, UBN Plc v. Ajabule [201] 18 NWLR (Pt 1278) 152. The Apex Court in Hon.Nze Herbert Osuji &Anor v. Anthony Isiocha [1989] 3 NWLR (Pt 111) 623 at 636  held;

“On the other hand, the quantum of general damages need not be pleaded and proved; for it is the loss which flows naturally from the defendant’s act and it is generally presumed by law”.

Having held earlier that the claimant has succeeded in establishing his case in negligence, the consequence of a finding of Court on Negligence is liability in damages, the claimant in this case led evidence as to the injury he sustained on the 10th September 2013 whilst rectifying lines with electricity problem at Quarter Guard, Shagari Estate. It is on record by Exhibit BD5, BD6, BD7, BD8 and the pictorial evidence i.e. Exhibit BD9, that the claimant sustained injury and this was corroborated by witnesses.  However, by Section 13 of the National Industrial Court Act, 2006, this Court is empowered to administer both law and equity concurrently. in the case of Mr Kurt Severinsen v. Emerging Markets Telecommunication Service Ltd [2012] 27 NLLR (Pt 78) 374 NIC, this Court in explaining its essence, held that the jurisdiction of this Court is invoked not only for the enforcement of mere contractual rights but for preventing labor practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience. Now, the law is trite by the decision of the Apex Court in Hamza v. Kure [2010] 10 NWLR (Pt.1203) 630 SC, that in personal injury, pain, discomfort and permanent scar even though cannot be quantified in monetary terms, the claimant is entitled to a reasonable amount in general damages. I find from the record before the Court that the Claimant immediately after the incident was taken to Joe-Jane Hospital Akure where he was treated and later on Federal Medical Centre Owo and the company neglected and abandoned him all through his travails thereby breaching their duty to take care of him. It is in the light of these that I am inclined to grant the claim for general damages. Consequently, I hereby award the sum of N20,000,000.00 [Twenty million naira] as general damages to the claimant, to be paid by the defendants. I so hold.

 

On the claim for cost, the law is settled that costs is not meant to be a bonus to a successful party, it is also not meant to be as a punitive measure and is always determined at the discretion of the court, a discretion that must be exercised judiciously and judicially, see the case of Jaiyeola v. Abioye [2002] LPELR-7169 (CA).

In conclusion, I find that the Claimant’s claims succeed in part and for the purpose of clarity, I declare and order as follows:

  1. That the claimant has succeeded in making out a case of negligence after the accident/ injury sustained by him, against the defendants
  2. The defendants are to pay to the claimant the sum of One Million, Seven Hundred and Ninety-Four Thousand and Twenty Naira (N1,794,020) the cost of his medical bills as special damages.
  3. The claim for the sum of N2,000,000.00 (Two Million Naira) as disengagement entitlements of the Claimant from the defunct PHCN fails.
  4. A sum of N20,000,000.00 [Twenty million naira] is awarded as general damages against the defendants.
  5. All judgment sums awarded in this suit shall be paid within 30 days failure upon which it will attract a 10% interest per annum.

N100,000.00k cost is hereby awarded against the defendants.

Judgment is accordingly entered.

 

Hon. Justice A. A. Adewemimo

Judge

admin

Website:

Related Story