IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
BEFORE HIS LORDSHIP: HON. JUSTICE A.A. ADEWEMIMO
DATED THIS: 19TH OF MAY, 2022 SUIT NO. NICN/CA/46/2017
BETWEEN
MR. GODWIN OKUNZUWA …..…….. CLAIMANT
AND
1. NIGERIAN NATIONAL PETROLEUM
CORPORATION ….….… DEFENDANTS
2. INTEGRATED DATA SERVICES LTD (IDSL)
Representations:
Imo T. Bassey, Esq. for the claimant
S.O. Agwinede, Esq. for the Defendants
JUDGMENT
1. The Claimant commenced this suit vide a complaint, statement of facts and other accompanying processes dated and filed on 27th of August, 2017, at the Calabar Judicial Division of this Court. The suit was however later transferred to this court for trial de-novo on the 3rd day of December 2020, and the claimant vide this action is seeking the following reliefs against the Defendants:
i. A Declaration that the refusal by the defendants to pay the Claimant his monthly salary and due entitlements, when his service is current and running, is an abuse of his right to life, a grave deprivation, neglect and unconstitutional.
ii. Payment of his salary and arrears from 2007 to date.
iii. N100 million Compensation for permanent incapacitation and loss of -income as a result of the accident.
iv. General damages of N10million (Ten Million Naira) only for withholding the claimant's salaries and benefits particularly in time when the claimant is bed-ridden due to the accident he was involved in the course of his official assignment for the Defendants.
v. N250million (Two Hundred and Fifty Million Naira) only for medical expenses of the Claimant to obtain treatment for the spinal cord injury abroad.
vi. 10% Post-Judgment interest per annum on the Judgment Sum until the entire judgment sum is liquidated.
vii. Cost of litigation assessed at N2.7m (Two Million, Seven Hundred Thousand Naira) only.
2. The defendants’ statement of defence is dated 4th of January, 2018 and filed on the 26th of January, 2018, but deemed properly filed on 15th March, 2018. Upon receipt of the statement of defence, the claimant filed a Reply dated and filed 22nd of March, 2018.
3. The summary of the claimant’s case is that he was employed by the 1st defendant and posted to the 2nd defendant (a subsidiary of the 1st defendant) in November, 2000. On 5th of December, 2005, the claimant was involved in a road accident along Elele-Owerri Road on an official assignment to the 1st defendant’s base in Omerelu. The accident led to the death of two of his colleagues and him sustaining spinal cord injury as a result of which, he became bedridden. He alleged that the 1st defendant did not avail him with adequate and timeous medical treatment after the accident, and subjected him to physical and psychological abuse while he was at their Medical Centre in Benin.
4. The defendants on the other hand denied the allegations in the statement of facts and contended that there was no employment relationship between them and the claimant. They further alleged that the claimant was an employee of Irhobo & Sons Enterprises, an independent contractor engaged to carry out minor repairs, leakage testing and other related works in a joint venture between the 1st defendant and United Geophysical Nigeria Ltd. They averred that the 1st defendant took reasonable care of the claimant, and did not impede any offer to help him seek further medical treatment abroad or anywhere else. They contended that all the assistance rendered to the claimant were done as part of the 1st defendant’s corporate social responsibility, and not because he was their employee. They maintained that this suit is baseless, gold-digging and spurious.
5. Trial commenced in this suit on 16th November, 2021 with the claimant testifying as CW1. He adopted his written deposition on oath, tendered documents that were admitted and marked Exhibit G1-G7, and was duly cross-examined. In his evidence-in-chief, CW1 testified that he was formally employed by the 1st defendant and posted to the 2nd defendant in November, 2000, and while on official assignment along Elele-Owerri Road, he had a fatal accident which caused his paralysis due to spinal cord injury. He stated that the defendants delayed in taking him for medical treatment, as he was taken to the 1st defendant’s base camp, then to a clinic in Owerri where the doctor was overwhelmed and could not attend to him.
6. CW1 testified that Shell PD Co. eventually stepped in and took him to their clinic in Port-Harcourt where he was diagnosed with evolutionary stage spinal cord injury, and was referred for further treatment overseas, because they did not have adequate facilities to treat him. Shell immediately took steps to arrange for an overseas treatment but, the defendant blocked the arrangement on the ground that he was their employee and their responsibility. CW1 was later moved to University College Hospital, Ibadan where it was recommended that he should undergo a review and fuller rehabilitation elsewhere. The defendants thereafter moved him to the 1st Defendant’s Medical Centre, Benin, but they were ill equipped to handle his case.
7. CW1 testified at the 1st Defendant’s Medical Centre, the personnel subjected him to verbal, physical and psychologically abuse. The defendants later brought a physician/neurologist who recommended that he should be transferred to another hospital with better facilities and personnel but the advice was ignored. CW1 alleged that he was later coerced to write a letter of gratitude and appeal to the 1st defendant, at the Medical Centre, and disagreed with them on the content, and one was eventually written for him, which he viewed was a perversion of the true course of events, hence he refused to sign same.
8. The claimant was later taken to the National Hospital, Abuja and was attended to by one Dr. Kalu who assessed him and told him in confidence that the defendants have no intention of sending him for overseas treatment. CW1 testified that he was thereafter discharged and brought back to Benin where, he was told by the defendants after a standoff that their hands were tied because he was not their staff. CW1 was thereafter offered financial help to go and treat himself, and he demanded for N220,150,000 (Two Hundred and Twenty Million, One Hundred and Fifty Thousand Naira) for medical treatment. The defendants rejected the sum he demanded and offered to pay him N7,500,000 (Seven Million, Five Hundred Thousand Naira) instead, and he reluctantly accepted the offer out of desperation. CW1 alleged that the defendants later fraudulently coerced him to sign a document stating that he would not take them to Court, but refused to avail him with a copy of the said agreement. CW1 later caused his solicitors to write letters dated 14th October, 2015 and 11th January, 2017 to the defendants’ demanding for financial assistance for his medical treatment overseas but both letters were ignored, wherefore he commenced this suit against the defendants.
9. Under cross-examination, CW1 stated that he does not have any letter of appointment, nor a letter posting him to the 2nd defendant. He added further that he does not have any letter indicating his last promotion at the 2nd defendant, and was not a staff of Irohbo and Sons Enterprises. CW1 maintained that he was treated in different hospitals by the defendants, and the 1st defendant has control over what Shell PD Co. can do for him, because he was a contract staff at the 1st defendant. CW1 testified that, the defendants have an obligation to spend money on his treatment as a contract staff, and he was not well treated at their Medical Centre in Benin, but he did not belong to any branch of PENGASSAN.
10. The defence opened their case on 17th November, 2021 by calling Sikiru Abidoye Babatunde, the 1st defendant’s Dep. Manager (Policy Compliance) as DW1. He adopted his written deposition on oath, tendered documents that were admitted and marked Exhibits P1-P4, and was cross-examined. In his evidence-in-chief, DW1 testified that the claimant was employed by Irhobo & Sons Enterprises, an independent contractor who was engaged by the 1st defendant to do some works on the joint-venture contract the defendants were executing with United Geophysical Nig. Ltd.
11. He stated that when the accident occurred, the claimant was taken to the 1st defendant’s retained clinic in Owerri, but the clinic did not have the facility to handle the situation. The defendants later contacted Shell for assistance which was swiftly rendered. He continued that the defendants did not frustrate any attempt to treat the claimant anywhere, and he was not recommended by UCH for medical treatment overseas. DW1 added that the defendants provided CW1 with the best medical service. But never acknowledged the claimant as their staff. He added that the defendants only helped the claimant in fulfillment of their corporate social responsibility. He maintained that the personnel at the 1st defendant’s medical center exhibited ultimate professionalism in the course of the claimant’s treatment, but he was aggressive towards them because he could not come to terms with his incapacitation. DW1 testified that Dr. Kalu of the National Hospital, Abuja never recommended overseas treatment for the claimant, and, the defendants expended N7,071,934.48 (Seven Million, Seventy-One Thousand, Nine Hundred and Thirty-Four Naira, Forty-Eight Kobo) on the claimant’s medical treatments. DW1 continued that the defendants in addition, paid a sum of N7,500,000 (Seven Million, Five Hundred Thousand Naira) to the claimant on humanitarian ground to assist with his rehabilitation.
12. Under cross-examination, DW1 testified that the claimant was travelling in the 1st defendant’s vehicle on his way to work for Irhobo & Sons Ltd, when the accident occurred. He stated that he does not know who contacted the defendants after the accident, and confirmed that the 1st defendant has comprehensive emergency medical facilities but does not know if same is opened to members of the public. DW1 stated that the defendants do not have a policy of taking contract staff overseas for treatment, and the sum of N7,500,000 given to the claimant was as a result of his appeal for assistance.
13. The defence closed after the evidence of DW1 and this case was adjourned for adoption of final written addresses. Learned counsel for both parties thereafter adopted their final written addresses on 23rd February, 2022.
14. In the defendants’ final written address dated 6th December, and filed 7th December, 2021, S. O. Agwinede Esq. submitted three issues for determination, to wit:
a. Whether the reply to statement of defence was competent in law under the extant rules of procedure of this Honourable Court?
b. Whether from the state of pleadings and the evidence adduced thereon the Claimant has established his case to be entitled to the various reliefs he is claiming in this suit.
c. Whether the Claimant’s suit is not statute barred?
15. The defence counsel argued on issue one that Claimant’s Reply to the Joint Statement of Defence is incompetent as it contains mere denials of the averments in the defence. He pointed out that the object of a Reply is to address new issues raised in the Defence, citing Azeez Akeredolu & Ors. v Lasisi Akinremi & Ors. (1989) 3 NWLR Part 108 Pg. 164 at 172 Paragraph B – G. Learned counsel argued further that the said Reply is not supported by the evidence of any witness, therefore averments in same are deemed abandoned, relying on Udoh v Nwachukwu (2021) 13 NWLR Part 1793 Pg. 205 at 223. He urged the Court to strike out the Reply to the Statement of defence as it is incurably defective.
16. On the second issue, learned counsel contended that the Claimant failed to establish his case on the preponderance of evidence to be entitled to the various reliefs sought. He argued that the claimant did not prove that he was employed by the defendant or the terms and conditions guiding same, in the light of the defendants’ denial of employment relationship with him. He posited that this failure is fatal to the claimant’s case because, a contract is the foundation upon which the claimant’s case is built, he relied on Morohunfola v Kwara State College of Technology (1990) 21 NSCC (Pt 3) Pg. 27 at 42 and Nigerian Institute Of International Affairs v Mrs. T. O. Ayanfalu (2007) 2 NWLR Part 1018 Pg. 246 at 271.
17. Learned counsel argued that the Court must do justice according to law without sentiment, pity or favour, thus the Claimant must prove his case as the burden is on him, and failure to prove same will lead to a dismissal of his case. He cited High Performance Distribution Limited v Samsung Electronics Company (2021) LPELR – 52708(CA) Pages 50 – 52 Paragraph E – A. Counsel urged the Court to dismiss the claimant’s case without the need to consider the Defendants’ case or defence, citing Babatola v Adewumi (2012) 12 WRN Page 132 at Pages 153 – 154.
18. On the third issue submitted by counsel, he argued that assuming but not conceding that the Claimant was an employee of the Defendants, he had 12 (Twelve) calender months from the date of the accrual of the cause of action to institute this action. He relied on Section 12 (1) of the Nigerian National Corporation Act, 2004 and submitted that the cause of action in this case accrued when the Defendants stopped paying the Claimant’s salaries and allowances in 2007, i.e. after he was paid N7,500,000.00 (Seven Million, Five Hundred Thousand Naira) for his final rehabilitation. He therefore posited that this suit is statute barred having been filed in 2017, i.e. 10 (Ten) years after the occurrence of the cause of action, citing Abubakar Abdulrahman v Nigerian National Petroleum Corporation (2021) 12 NWLR Part 1791 Pg. 405 at Pages 418 – 419 .
19. In conclusion, counsel urged the Court to hold that the Claimant has failed to establish his case on preponderance of evidence and is therefore not entitled to any of the reliefs claimed in this suit.
20. The Claimants’ Final Written Address is dated 13th January, 2022, but filed 14th January, 2022, wherein Imo T. Bassey, Esq. adopted the issues submitted by the defence counsel and proceeded to argue on same. On the first issue, learned claimant’s counsel contended that though not all the averments in the claimant’s reply were reactions to new issues raised in the defence, they are largely directed at issues raised for the first time in the statement of defence. He therefore argued that the defendants’ contentions pales in significance and is of no moment because the Defendants already took fresh steps after being served with the Claimant’s Reply. On this, he submitted that the claimant having filed a Further Affidavit in their motion for preliminary objection and participated in the trial up to final Written Address stage, they can no longer object. He relied on Dije M. D. Kinfau V. Musa Kinfau (2006) 6 NWLR (Pt 975) 2000, and urged the Court to discountenance the Defendants’ argument as same is unstainable in law.
21. On issue two, learned counsel argued that it is not for the defendants to contend that the claimant did not tender his contract of employment, because he was not given any, as that was their practice with contract staff. He thereafter cited Nwakhoba v Dumez (Nig) Ltd (2003) FWLR (Pt 176) 1188, (2004) 3 NWLR (Pt 861) 461. He further noted that the defence counsel admitted the claimant’s status as employee of the defendants when he argued that the cause of action in this suit accrued when the defendants stopped paying his salaries and allowances, relied on C.B.N v. Dinneh (2021) MWLR (pt 5) p 95 at pp 124-125 Paras H-A; and CNDWS & TCL v Ogwuche (2016) ALLFWLR (Pt 848) p 684 paras F-G, he therefore urged the Court to infer from the documents and other evidence adduced that the claimant is a staff of the Defendants.
22. Learned Counsel contended that the claimant’s appointment with the Defendants was never terminated and is subsisting though his salaries and allowances were stopped. He maintained that the rule that he who asserts must prove is not absolute, and the evidential burden has shifted to the defendants when the claimant established by evidence that he had an accident while performing his duty as an employee of the defedants, citing Eweje v. O. M. Oil Industries Ltd (2021) MWLR (Pt 1) p1 at pp 29-30 Paras E-A and Sections 132 and 133 of the Evidence Act, 2011.
23. The Claimant’s counsel submitted on issue three that the contention that this suit is statute barred was earlier raised and comprehensively dealt with at the Calabar Division of this Court where this suit originated. He therefore argued it is an abuse of court process for the Defendants’ counsel to raise same again in their final written address as if it were a fresh issue. He relied on Saraki V. Kotoye (1992)9 NWLR (Pt 264) 156 at 188 Paras E-F, and posited that by rearguing an issue already disposed of the defendants are inviting the Court to sit on appeal over its own decision, citing Alhaji Ahmed & Co (Nig) Ltd v African International Bank Ltd (Supra). He urged this Court to discountenance this issue as it is no longer a live issue.
24. In conclusion, counsel submitted that the claimant has proved by inference and documentary evidence that; (i) he is a staff of the Defendants, (ii) that his employment is subsisting, and (iii) that he had the accident which resulted in his incapacitation in the course of his work for the Defendants. He finally urged the Court to hold that the claimant is entitled to all the reliefs sought in this suit.
25. In the defendants’ Reply On Point of Law dated and filed 14th February, 2022, learned defence counsel merely reargued issues in the Defendants’ Final Written Address.
26. I have carefully considered all the processes filed by the parties in this case, the documents tendered, listed to the witnesses called and the written submissions of counsel in their final address. I have thereafter resolved that the issues that would best determine this suit are:
a. Whether or not this suit is statute barred;
b. Whether or not the claimant was an employee of the defendants;
c. Whether or not the claimant is entitled to the payment of salary arrears by the defendants;
d. Whether or not the claimant is entitled to the other reliefs in this suit.
27. On the first issue, which is whether or not this suit is statute barred, the defendants argued in their final address that by virtue of Section 12 (1) of the NNPC Act, 2007, this court lacks the jurisdiction to entertain this matter. The law is trite that a court cannot adjudicate over a suit where it lacks jurisdiction to entertain same, and any decision reached in the absence of jurisdiction amounts to a nullity. It is therefore important to determine this issue of jurisdiction raised by examining Section 12 (1) of the NNPC Act, 2007, which provides as follows:
“Notwithstanding anything in any other enactment, no suit against the corporation, a member of the board or any employees of the corporation for any act done in pursuance or execution of any enactment or law, or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such enactment or law, duties or authority, shall lie or be instituted in any Court unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of continuance of damage or injury, twelve months next after the ceasing thereof.”
28. Learned counsel for the claimant in his response to the contention that this suit is statute barred, submitted that the defence counsel is trying to mislead the court, as this issue was already decided before the former judge and ruling entered. A look at the record of court, confirms the account of claimant’s counsel, that my learned brother Esowe .J. delivered a well-considered ruling on the 9th of October, 2008 in respect of this same objection, and over-ruled the defendants. I have read the ruling and noted that the contentions raised in that ruling is the same in this instance, and I agree with the conclusions reached in the Ruling.
29. The position of the law yet remains unchanged that Limitation Laws do not apply to employment disputes. The Supreme Court elucidated on this in the case of NRMA & FC v Johnson (2019) 2 NWLR (Pt. 1656) 247), where Ariwoola J.S.C. held as follows:
“Section 2(a) of the Public Officers Protection Act does not apply to cases of contract. In this case, the respondents’ claim is on contract of service. Thus, the appellants are not covered by the Provisions of the Public Officers Protection Act.”
30. Again, in AG Rivers State v AG Bayelsa State & Anor. (2013) 3 NWLR (Pt.1340) 123 at 143 and Tajudeen v F.I.R.S (2020) 12 NWLR (Pt. 1739) 459 Iyizoba JCA held that:
“There are exceptions to the application of Section 2 (a) of the Public Officers (Protection) Act. These exceptions cover instances where there is lack of justification for the action of the public officer, abuse of office or misuse of power, where the action of the public officer is tainted with malice or where there is a breach of constitutional or fundamental rights of a person by the public officer”.
31. Also see Atanda v Kwara State University (2020) LCN/14690 (CA) where Bdliya JCA held that:
“There is no doubt, a careful reading of the respondent’s claim will show clearly that it is on contract of service. It is now settled law that Section 2 of the Public Officers’ Protection Act does not apply to cases of contract.”
There is no doubt that the provision of Section 12(1) of the NNPC Act, 2007 is a Limitation Law, in the same vein as Section 2 (a) of the Public Officers Protection Act. As such, the principles enunciated in the above cited authorities are also applicable in the instant issue. Consequent upon the above, the defendant’s contention that this suit is statute barred fails and is hereby dismissed. I so hold.
32. In resolving issue two which is whether the claimant has established that he was an employee of the defendants, I find it of vital importance to consider the contentions of the defence that the Claimant’s Reply to the statement of defence is incompetent. The defence counsel pointed out that the purpose of a Reply in pleadings is to address new issues in the Statement of Defence, but the claimant merely repeated facts already pleaded. He further contended that no evidence was called in support of the averments and therefore urged the court to strike out the claimant’s reply as it is incurably defective. The law is trite that a Reply is meant to address fresh issues raised in the statement of defence, see Igbozor v Effiong & Ors. (2016) LPELR-40100 (CA); and PILLARS NIG. LTD V. MRS HANNAH DESBORDES & ORS 2009 LPELR 8204 CA, where Nwodo J.C.A. stated as follows;
“The rules governing filing a reply to a statement of Defence are as follows: (a) Generally, it is not necessary for a Plaintiff to file a Reply if his only intention in doing so is to deny any allegations that the Defendant may have made in the Statement of Defence. (b) A reply to join issues is not permissible if no reply is filed, all material facts alleged in the Statement of Defence are put in issue. (c) The purpose of filing a reply is to join issue on allegations made in the Statement of Defence. (d) Where a new issue to attract a reply must in law be really new to the Statement of Claim in that it was introduced for the first time in the Statement of Defence by the Defendant.”
33. A thorough perusal of paragraphs 1 and 4-20 in the Claimant’s Reply to the Statement of Defence filed on the 10th of April, 2018, discloses that they are mere repetitions of facts already pleaded in the statement of facts. Paragraphs 2 and 3 of same are however replies to the fresh issue raised in the paragraphs 2 and 3 of the Statement of Defence which bothers on whether the claimant was an employee of the defendants. In summary, while most of the averments in the Reply are mere repetitions, the defendants’ contention that the claimant is not their employee but a contract staff employed by Irhobo & Sons is a new issue introduced by the defence, and therefore necessitated a reply.
34. Pursuant to paragraphs 2 and 3 of the Reply to the Statement of Defence, the evidence of CW1 in paragraphs 1 and 4 of his adopted deposition on oath and other cross examination becomes relevant, and is hereby reproduced as follows:
“…I am also a staff of the 1st defendant and by extension the 2nd defendant…
I was employed formally by the 1st defendant and posted to the 2nd defendant company which is owned by the 1st defendant in November 2000 after successfully completing the pre-employment requirements. I worked in maintenance section of the 2nd defendant.”
The claimant further testified under cross-examination as follows:
“No, I was never a staff of Irhobo & Sons Enterprises
1st defendant has control because I was a contract staff of the 1st defendant.”
35. The above testimony clearly aligns with paragraphs 2 and 3 of Claimant’s Reply to the Statement of Defence, and represents evidence led on the averments. On this premise, the Defendants’ contention that the Reply to the statement of defence in this suit should be struck out is therefore not tenable. However, paragraphs 1 and 4-20 of the reply to the statement of defence are mere repetitions and are hereby discountenanced. I so hold.
36. This court having dealt with the competency of the claimant’s reply, will now consider this issue of the claimant’s employer in proper perspective. It is trite law that it is duty of an aggrieved employee in an action for unlawful termination or claims under an employment contract to prove the following, (i) that he was employed by the defendant, (ii) the terms of his employment and (iii) how the terms were breached. The claimant in this case however did not place the terms and contract of employment before this Court, but led evidence that he was not given any contract of employment by the defendants. The claimant solely relied on the evidence led and exhibits tendered in this case, while the defendant contended that the relationship that existed between the parties was not a contract of employment, and the claimant was a contract staff employed by a third party in a joint venture in which they were partners. In resolving this issue, the definition of an employee and an employment relationship will be examined. In Iyere v Bendel Feed and Flour Mill Ltd. (2008) LPELR-1578(SC), Muhammad JSC defined employee and contract of employment thus;
“I should add that an employee, except where a different meaning is given in the context of the employment, means an individual who has entered into or works under, or where the employment has ceased, worked under a contract of employment. A contract of employment connotes a contract of service or apprenticeship, whether express or implied, and if it is express, whether it is oral or in writing.”
37. The holding above presupposes that a contract of employment may be expressed or implied from their conduct, see also FCDA v The Governing Council of National Industrial Training Fund & Anor. (2009) LPELR-8148(CA), coram Aboki JCA:
“A look at Section 15 of the Labour Act reveals that an“Employer” is a person engaged in industry or commerce with whom an employee entered into a Contract of Service or apprenticeship and who is responsible for payment of wages or remuneration to the employee. Apprenticeship is defined by Collins English Dictionary as “ a system where someone works for a fixed period of time for a person who has a particular skill in order to learn the skill.” This I believe adequately covers the Claimant’s employment with the defendant.”
38. Though, the defendants in this case have contended that the claimant is not their employee but a staff of Irhobo & Sons Enterprises, nothing else was provided in proof of this particular averment. The law is trite that he who asserts must prove, see Sections 131-133 of the Evidence Act, 2011. The defendants having asserted this piece of evidence which was denied by CW1 in his reply and other cross examination retains the burden to proof same, and their failure to do so implies that same is unproven. A further scrutiny of the evidence adduced in this case reveals the contrary in respect of the contentions of the defendants, that they were not in an employment relationship with the defendants which I will get to in a moment.
39. The facts in this case discloses that the claimant was in a personnel carrier with other staff members, on an official assignment for the defendants when the accident occured. However, the evidence of DW1 under cross examination is that the claimant was on his way to work for Irhobo & Sons, proof of which DW1 did not provide in this case. As a matter of fact, the claimant was variously described in the defendants’ documents as “crew member”, “staff” and “contract staff” of the defendants, see Exhibits P1, P3 and G1. The evidence of DW1 on this therefore contradicts the documentary evidence tendered, and is therefore discountenanced.
40. In addition, the documents tendered and recorded as Exhibits indeed point to the fact that the claimant was engaged in works for the defendants. The content of Exhibit G1 is a definitive example where it was written:
“The Manager
Medical Service
Nigerian National Petroleum Corporation
Benin Medical Zone
Benin-City
Re: Okunzuwa, Godwin – UCH No. 107714
The above named 11 (sic) year old right handed staff of your establishment presented at our Accident and Emergency Department on the 5th of January, 2006 with weakness of all four extremities worse in the lower extremities which is 27 days after…”
Also in Exhibit P3 (an Internal Memo of the 1st Defendant’s Medical Services Department), it was stated that:
“Please find below the summary of Medical expenses on the above named IDSL/UGNLJV171 Contract staff, who was involved in a RTA on the 6th December, 2005 while in a personnel carrier…”
Further in Exhibit P1, another Internal Memo, the claimant was referred to as a crew member, while in a letter written by Hon. Cairo Ojougboh, a member of the House of Representatives to the Managing Director of the 1st defendant, the claimant was described as follows:
“I write to inform you that the family of Mr. Godwin Okonzuwa staff of NNPC now in the hospital sent a letter of protest to my office through a law firm…”
41. The status of the claimant as a staff of the defendant was also reinforced in all the correspondence of the claimant’s solicitors with the 1st defendant, wherein he was always referred to as a staff of the 1st defendant. It is the position of the law that silence can mean admission by conduct, and where a party had an opportunity to make a denial but elected to be silent, such silence can be construed against him, see Oceanic Bank International Plc v Broken Agro Allied Industries Limited (2008) LPELR-4671(CA) where Dongban Mensem, JCA held as follows:
“This is an instance when the scourge of silence negates its virtue; when silence is not golden; "Silence is the best tactic for him who distrusts himself," wrote Francois La Rochefoucauld, (1613 - 1680). Also, a writer and novelist: - Elizabeth Bowen (1899 - 1973) declared that "Silence has a climax, when you have got to speak." Culled from: - "The Heat of the Day." The silence of the Appellant, the sudden loss of memory of the DW1, a branch manager and only witness for the Appellant, as to the date on which the loan was released to the Respondent "screams guilty" at the Appellant.”
42. In the same vein, the Court of Appeal also held per Awotoye JCA in Maradun Tambuwal (2015) LPELR-24443(CA) that:
“The failure of the defendant to react to the contents of the letter written to him by the plaintiff's lawyer even in his affidavit to disclose intention to defend action on merits coupled with the various documents signed by him and exhibited to the plaintiff's affidavit totally obviated the need for the lower court to transfer the suit to the general cause list. The silence of the defendant on the letter of the plaintiff's lawyer leads to presumption of admission of its contents by conduct by the defendant.”
43. The defendant never denied receipt of these letters from the claimant’s solicitor, as revealed vide Exhibits G4 and G5, i.e. Solicitors’ Letters with evidence of delivery in Exhibits G6a and G6b, i.e. Courier Receipts. The letters were pleaded in paragraphs 38 and 39 of the Statement of Facts, while the DW1 in reference to same deposed in paragraph 19 of his written deposition as follows:
“That the claimant’s demand through his solicitors made on the defendants are spurious, gold digging, baseless and without any legal foundation whatsoever, which demand constitutes acts of ingratitude and abuse of the defendant’s acts of kindness… and I state further that the defendants did not want to join issue with the claimant or his agents on a matter that does not concern them as the claimant has already grossly misinterpreted the defendants said benevolence and compassion for acceptance of liability for the injuries he suffered from the accident.”
44. The above established without doubt that the defendants received Exhibit G4 and G5 but elected not to respond or react to them, even though the letters contained assertions that the claimant was their employee. Therefore, the defendants’ contention that CW1 was an employee by Irhobo & Sons, is not enough not absolve them of their tacit adm ission by their silence. The documentary evidence i.e. Exhibits P1, P3 and G1 therefore present ample evidence to establish the existence of an employment relationship between the parties in this case. The Court of Appeal in Victor Adegboye v UBA Plc, appeal number CA/IL/20/2021 delivered on 14th April, 2022, per Amadi JCA held as follows:
“I make bold in holding that it is not in all cases that failure to plead and tender the letter of employment that will be fatal to the case of the claimant in a case of wrongful termination of employment, where the terms of the contract of employment is not in issue as in this case and where there is otherwise ample evidence to establish the terms of the contract of employment, failure to tender the letter of appointment will not necessarily be fatal to the plaintiff's case. See Savannah Bank (Nig) Plc v Fakokum (2002)1 NWLR (Pt.749)544. See also my judgment in Nwokoma v First Bank of Nigeria Plc (2014) 50 NLLR (Pt.166) 357, without much ado on this issue I resolve it in favour of the Appellant and against the Respondent.”
45. The law is therefore settled that there are various ways by which an employee can prove his employment which include: (i) payment of wages, (ii) regular working hours (iii) he was under their directive and engaged in works for the employer. The indicators of an employment relationship which I find helpful in this regard, are well captured in Article II (13) (a & b) of the International Labour Organizations Recommendation 198 on Employment Relationship (2006) which provides as follows:
“13. Members should consider the possibility of defining in their laws and regulations, or by other means, specific indicators of the existence of an employment relationship. Those indicators might include:
(a) the fact that the work: is carried out according to the instructions and under the control of another party; involves the integration of the worker in the organization of the enterprise; is performed solely or mainly for the benefit of another person; must be carried out personally by the worker; is carried out within specific working hours or at a workplace specified or agreed by the party requesting the work; is of a particular duration and has a certain continuity; requires the worker's availability; or involves the provision of tools, materials and machinery by the party requesting the work;
(b) periodic payment of remuneration to the worker; the fact that such remuneration constitutes the worker's sole or principal source of income; provision of payment in kind, such as food, lodging or transport; recognition of entitlements such as weekly rest and annual holidays; payment by the party requesting the work for travel undertaken by the worker in order to carry out the work; or absence of financial risk for the worker.”
46. The defendant not only held out that the claimant is their staff vide their own correspondence in this case, he was also in their personnel vehicle on official assignment when the accident occurred, and the Exhibits tendered attested to the employment relationship. Therefore, upon due consideration of the position of the law espoused above vis-à-vis the evidence available in this case, I find that the claimant has successfully established that he was an employee of the defendants. I so hold.
47. On the third issue identified above, the claimant’s case is that since his employment was never terminated by the defendants, he is still in their employment and is entitled to salaries till date. The law is trite that a contract of employment can be terminated in several ways, that is, vide a letter of termination, frustration, abandonment and act of God. In the circumstance of this case, the facts are clear that the claimant suffered a debilitating injury, which was vividly described in Exhibit P3 as follows:
“Initial diagnosis of spinal injury with quadriparesis was made and the final diagnosis is given as spinal injury from demyelization at L1/L2 with paraplegia.”
The medical term in simple language means paralysis and immobility of the lower half of a person’s body.
48. The implication for the claimant is that he was rendered incapable of performing his side of the employment contract, thereby leading to frustration of the contract of employment. See CCB v Onyekwelu (1999) 10 NWLR (Pt. 623) pg. 452 at 461, paras E-F where Tobi JCA held as follows:
“Frustration occurs whenever the law recognizes that without default of either party, contractual obligation has become incapable of being performed because the circumstances in which performance is called for would make it a thing radically different from what was undertaken by the contract. The principle of frustration assume that the frustrating event was not caused by the fault of either party to the contract…...”
49. Also in RMAFC v UES Ltd. (2011) 9 NWLR (Pt. 1252) pg. 379 at 418, paras. G-H where Nwodo JCA held:
“A contract of employment may be frustrated by the innate inability or illness of one party to perform the contract in the manner anticipated.”
50. In view of the nature of the claimant’s injury, which rendered him bed ridden, I find that the contract of employment was frustrated and performance rendered impossible. Consequently, there is no merit in the claimant’s contentions that his employment is still subsisting and his claim for salary arrears, therefore fails. I so hold.
51. On the last issue, the position of the law is trite that claims for personal injury in the workplace such as this one, is ascribed to a duty of care that an employer owes its workers, see Kabo Air Ltd. V Mohammed (2014) LPELR-23624(CA) pg. 35, where Abiru JCA held that:
“The general requirement of the law where there exists a service relationship between employer and employee is that the former is under a duty to take reasonable care for the safety of the latter in all the circumstances of the case so as not to expose him to an unnecessary risk. ... The level of this duty is the same as that of the employer's common law duty of care in the law of negligence……..”
Abiru JCA continued:
“It is the duty of an employer, acting personally or through his servants or agents, to take reasonable care for the safety of his workmen and other employees in the course of their employment, whether the employer is an individual, a firm or a company, and whether or not the employer takes any share in the conduct of the operations. This duty extends in particular to the safety of the place of work, the plant and machinery and the method and conduct of work, but it is not restricted to these matters.”
52. It is also worthy of note that a claim under personal injury in employment can be pursued in two ways, (i) under the Employees Compensation Act (ECA) or, (ii) vide a civil suit. The duty of the defendants as employers in this instance, extends to taking reasonable care by providing a safe and conducive workplace for its employees. It can be argued in the instant case, that the injury suffered by the claimant was not as a result of any breach of duty of care on the part of the defendants, but as a result of an accident incurred in the course of the claimant’s work with defendants.
53. Furthermore, the available evidence reveals that the defendant in f act paid the claimant’s medical bills and provided treatment for him in several hospitals including University College Hospital, the National Hospital, Abuja, and the 1st defendant’s medical center in Benin. The claimant admitted all these under cross-examination and the defence led evidence that they expended a sum of N7,071,934.48 (Seven Million, Seventy-One Thousand, Nine Hundred and Thirty-Four Naira, Forty-Eight Kobo) on the claimant’s treatment. See paragraph 14 of the statement of defence, which was an uncontroverted where it was averred as follows:
“The defendants state in further denial of the aforementioned paragraphs that after treating the claimant in various hospitals across the country, which cost the defendants colossal sum of N7,071,934.48 (Seven Million, Seventy-One Thousand, Nine Hundred and Thirty-Four Naira, Forty-Eight Kobo)…”
54. There is also uncontroverted evidence that the claimant was paid the sum of N7,500,000 (Seven Million, Five Hundred Thousand Naira), sometime in 2007, for rehabilitation. This was confirmed by the claimant under cross-examination when he testified as follows:
“Q: You received the sum of N7.5 Million form the 1st and 2nd defendants and United Geophysical for your treatment with gratitude.
CW1: Yes, I took it.
55. The pertinent question to ask in view of the foregoing is, whether the claimant is entitled to any other remedy from this court? The jurisdiction of the National Industrial Court of Nigeria is clearly spelt out in Section 254C of the CFRN, 1999, wherein it is provided that this Court is vested with the jurisdiction to adjudicate over causes that are employment/labour related or connected. The court is also empowered to apply International Best Practices in Labour, Employment and Industrial Relation Matters, see Section 254C (1) (f) and (h). In this wise, ILO Convention C017 on Workmen’s Compensation (Accidents) Convention, 1925, Articles 1 and 9 is relevant in the instant case, not as a convention ratified by Nigeria, but to discover the International Best Practice on issues related to the instant case. Articles 1 and 9 of the convention provides as follows:
“Each member of the International Labour Organisation which ratifies this convention undertakes to ensure that workmen who suffer personal injury due to an industrial accident, or their dependants, shall be compensated on terms at least equal to those provided by this Convention.
The compensation payable to the injured workman, or his dependants, where permanent incapacity or death results from the injury, shall be paid in the form of periodical payments; provided that it may be wholly or partially paid in a lump sum, if the competent authority is satisfied that it will be properly utilized.
Injured workmen shall be entitled to medical aid and to such surgical and pharmaceutical aid as is recognized to be necessary in consequence of accidents. The cost of such aid shall be defrayed either by the employer, by accident insurance institutions, or by sickness or invalidity insurance institutions.”
56. The Employees Compensation Act, 2010 is therefore in alliance with this convention, the Act further provides on the type of accidents envisaged in the work place, see Section 11 of the Act which is of relevance in the instant case, where it was provided as follows:
“Where the injury to an employee occurs while the employee is working outside the normal workplace which would otherwise entitle the employee to compensation under this Act if the injury occurred in the workplace, compensation shall be paid to the employee under this Act if-
a. the nature of the business of the employer extends beyond the usual workplace;
b. the nature of the employment is such that the employee is required to work both in and out of the workplace; or
c. The employee has the authority or permission of the employer to work outside normal work place.”
57. An industrial accident, from the above provisions is not limited to accidents that occurred in the actual workplace but also to accidents arising out of the employment as in this case. The provisions clearly evinces that it is not enough for an employer to take care of the medical expenses of a worker, but such an employee must also be compensated in the case of permanent incapacitation incurred as a consequence of the industrial accident. The uncontested evidence in this case is that the claimant was on official assignment for the defendants. As such, the defendants owe it to the claimant to pay for his treatment and compensate him for his permanent incapacitation and loss of earnings, in line with the extant law and international best practice. The position of the law in awarding compensation for loss of earnings, is well captured by Uwaifo JCA in Strabag Const. (Nig.) Ltd v Ogarekpe (1991) 1 NWLR (Pt.170) pg. 733 at pp. 756 - 759 where his lordship held that:
“The basis of the determination of the quantum of damage is the deprivation suffered by a person because of the injury not necessarily in a professional capacity, but merely in his enjoyment of the ordinary amenities of life. Hence to search for evidence of devotion to games or dancing or history of which pre-occupations is to apply wrong principles. There is in law no specific and fixed quantum of evidence that must be adduced in support of a claim for 'loss of amenities of life' but evidence of physical disability arising from the damage has always been considered sufficient… Once the extent of disability has been established, the loss of ordinary… A more sophisticated worker in the sense that he does a job or is engaged in a profession that can project a future earning in great detail and for a substantial amount may prefer to spell out his loss of earning capacity.”
58. The claimant pleaded in paragraph 32 of the statement of facts as follows:
“… After due consultation, the claimant gave the defendant a bill of N220, 150,000 (Two Hundred and Twenty Million, One Hundred and Fifty Thousand Naira) only which would have enabled him to obtain treatment overseas but they rejected it saying that since it was not a pay-off, N7,500,000 (Seven Million, Five Hundred Thousand Naira) only was alright for his treatment locally as the claimant was still their responsibility.”
59. In response, the defendant in paragraph 15 of the statement of defence pleaded:
“The defendants decided purely on compassionate grounds to further assist the claimant’s rehabilitation by paying him N7,500,000 (Seven Million, Five Hundred Thousand Naira) consequent upon the injury he suffered as a result of Road Traffic Accident…”
60. The witnesses for both parties further led evidence on the above averments, and an evaluation of the evidence points to the fact that rehabilitation cannot in any way be used interchangeably with compensation. Rehabilitation is defined in Lexicon, an Oxford powered dictionary as the action of restoring someone to health or normal life through training and therapy after imprisonment, addiction, or illness, while compensation is defined as something, especially money awarded to someone in recognition of loss, suffering, or injury.
61. The claimant pleaded and led evidence to the effect that upon paying the sum of N7,500,000 () by the defendants, he was asked to execute a contract of indemnity and gave notice to the defendants to produce same in paragraph 35 of his statement of facts. He added that a copy of the indemnity agreement was not given to him, and he was coerced to sign it. He went further that his relatives were not present at the time he signed the indemnity given his condition. The defendants on their part admitted extracting an indemnity agreement from the claimant, see paragraph 16 of the deposition of DW1. They further frontloaded an unsigned copy of the indemnity contract but failed to produce the agreement before the Court. On 16th November, 2021, the defence counsel informed Court that they could not locate the documents the claimant gave them notice to produce, (including the indemnity agreement) and since the claimant led evidence that he was not given a copy of the agreement, none was placed before this Court.
62. The defendants without doubt retain the duty to produce this document in court as proof of the contents, and are also under a duty to produce same by virtue of the notice to produce issued by the claimant to them in paragraph 35 of the statement of facts. Their failure to produce the document implies that its content can be construed against them, that is, this court can rely on the uncontested testimony of the claimant that the sum of N7,500,000.00k paid to him was for his medical treatment and he was coerced to sign the contract. On this, see Section 167 (d) of the Evidence Act 2011 and the case of United Bank of Africa v Ibeh Esther Ogochukwu (2014) LPELR-24267 (CA).
63. In line with all the above, the claim in this case for compensation for permanent incapacitation and loss of earnings occasioned by the injury suffered by the claimant is justified. The nature of the injury suffered by the claimant is permanent incapacitation, and considering the state of the claimant, who was brought to court in a supine position, and his total dependence on others to perform the most basic human functions, I find that the claimant is entitled to compensation asides the medical treatment provided by the defendants in line with the position of the law.
64. In this wise, the claimant in relief 3 sought payment of N100,000, 000 (One Hundred Million Naira) as compensation for permanent incapacitation and loss of earnings against the defendants. I have duly considered the peculiar situation of the claimant in this case and the extent of his disability, and hereby award the sum of N25,000,000 (Twenty-Five Million Naira only) as compensatory damages to the claimant for his permanent incapacitation, loss of earnings to be paid by the defendants. I so hold.
65. On the other reliefs sought by the claimant, relief one (1) is seeking a declaration that the stoppage of his monthly salary by the defendants is unconstitutional. It is settled law that Courts do not grant declaratory reliefs in default of defence or indeed on admissions without hearing evidence and being satisfied that the claimant is entitled to same, see Kwande & Anor v Mohammed & Ors. (2014) LPELR-22575(CA), where Gumel JCA held:
The law is settled that courts do not grant declaratory reliefs in default of defence or indeed on admissions without hearing and being satisfied by such evidence. The burden of proof on a claimant in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such reliefs are not granted even on admission by the defendant.”
66. This court has held earlier in this judgment that the claimant’s employment no longer subsists as a result of his permanent incapacitation, the defendants therefore bear no obligation to pay his salaries as the contract is deemed frustrated. This relief therefore fails. I so hold.
67. On Reliefs 2 and 4 which seeks payment of the claimant’s salaries till date and the claim for N10,000,000 as general damages and payment of claimant’s salaries respectively, same are predicated on relief 1, and consequent upon the failure of the main relief, the reliefs also fail. I so hold.
68. In relief 5, the claimant is seeking payment of N250m (Two Hundred and Fifty Million Naira) for medical expenses to obtain treatment abroad. I find that this is a claim in special damages. The law is trite that special damages must be specifically pleaded and strictly proved, hence in the absence of such proof, same is bound to fail, see Flourmills of Nigeria Plc & Anor. v Nigeria Customs Service Board & Ors. (2016) Lpelr-41256(CA) where Georgewill, JCA held thus:
“It is thus well settled that in law there is need to specifically plead and strictly prove special damages as the rule requires anyone asking for special damages to prove strictly that he did suffered such damages as being claimed, though this does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages.
What is required of a party claiming special damages is to establish entitlement to such special damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head. Save this qualification, the general law of evidence as to prove by preponderance or weight as usual in civil cases operates.”
69. In the instant case, the claimant did not plead or lead evidence as to how he arrived at the amount he is claiming for medical treatment. That is, the type of treatment, where he intends to obtain the treatment, its prognosis and attendant cost. Asides the above, it is also in evidence before this Court that the defendants paid N7,071,934.48 (Seven Million, Seventy-One Thousand, Nine Hundred and Thirty-Four Naira, Forty-Eight Kobo) for the claimant’s treatment in several hospitals, and a sum of N7,500,000 (Seven Million Five Hundred Thousand Naira) for his rehabilitation. The claimant has however not proffered any cogent proof of the further treatment he intends to procure to be entitled under this head of claim. As such this relief fails, as it is unproven. I so hold.
70. In conclusion, I find that the claimant’s suit succeeds in part and for the avoidance of doubt, it is hereby ordered as follows:
i. The defendants is hereby ordered to pay to the claimant the sum of Twenty-Five Million Naira (N25, 000, 000) as compensation damages.
ii. The claimant’s reliefs 1, 2, 4, and 5 fails.
iii. All sums awarded in this judgment are to be paid by the defendants within 30 days from the date of this judgment, failing which the sum shall attract an interest of 10% per annum.
A cost of Two Hundred and Fifty Thousand Naira (N250,000) is hereby awarded in favour of the claimant to be paid by the defendants.
Judgment is accordingly entered
A. A. Adewemimo
Presiding Judge