IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP:
HON. JUSTICE M. N. ESOWE
DATE: FEBRUARY 2023
SUIT NO.: NICN/LA/62/2019
MR DANIEL DICK ETIM CLAIMANT
MATECO INDUSTRIES (WEST AFRICA)
Femi Fangonon, Esq for the Claimant.
Joseph Otogbolu, Esq for the Defendant
The Claimant was employed as a Conveyor Operator by the Defendant sometimes in the year 2013. In the course of his employment, while operating the conveyor machine, the Claimant had an accident on 23.05.2016 that inflicted a grievously cut to the Claimant’s right wrist and later resulted in the amputation of part of his right hand. The Defendant did handle the Claimant bills during his hospitalization, notified him of the involvement of the Nigeria Social Insurance Trust Fund (NSITF) with respect to his compensation. The Defendant alleges that after the accident, though the Claimant failed to show up at work, in the year 2017 it offered to pay the Claimant the sum of N552,000.00 as his salary for almost two (2) years.
Whereof the Claimant vide his Complaint and Statement of Claim filed on 13.02.2019 seeks the following against the Defendant:
a) A DECLARATION that the injury suffered by the Claimant was occasioned during his engagement and under the immediate control and consent of the Defendant.
b) A DECLARATION that the Defendant has a duty of care by ensuring the machinery and equipment the Claimant was operating in the course of the business was at all times in a good and safe condition before, during and after daily operations of the said machinery.
c) A DECLARATION that the Defendant breached the duty of care on the 23rd day of May, 2016 by willful omission or by intentional negligence, which resulted into the injury and permanent bodily damage suffered by the Claimant till date.
d) A DECLARATION that the Claimant is entitled to adequate and commensurate compensation by the Defendant for the loss of his right hand due to the damage done to him, and the injury sustained and suffered by him even in the absence of proof of negligence by the employer.
e) A DECLARATION that the Claimant has become permanently disabled as a result of the industrial accident that made the Claimant to loose his right hand.
f) A DECLARATION that from the facts and circumstances of this case, the Claimant’s employment was unlawfully terminated.
g) AN ORDER that the sum of N10,000,000.00 (Ten Million Naira) be paid to the Claimant as a general and aggravated damages by the Defendant and also as a compensation to the Claimant for the loss of his right hand and permanent disability as a result of the industrial accident on the premises of the Defendant company.
h) AN ORDER of this Honourable Court compelling the Defendant to pay to the Claimant the sum of N3,000,000.00 (Three Million Naira) as general damages for unlawful termination of employment.
i) The sum of N243,000.00 (Two Hundred and Forty-three Naira) being arrears of salaries due to the Claimant from January 2017 up till December 2018 and N23,000 (Twenty-three Thousand Naira) for every subsequent month until the determination of this suit.
j) The sum of N138,000 (One Hundred and Thirty-eight Thousand Naira) as terminal benefits for the six years that the Claimant had worked with the Defendant.
k) The sum of N115,000 (One Hundred and Fifteen Thousand Naira) being payment in lieu of leave for the 6 years that the Claimant worked with the Defendant.
l) N500,000 (Five Hundred Thousand Naira) as the cost of this suit.
The Defendant entered appearance with leave of Court on 05.02.2021, filed alongside is its Statement of Defence and other accompanying processes.
Hearing in this suit commenced on 25.06.2019 with the Claimant testifying as CW1, he adopted his witness statement on oath as his evidence, through him a total of nine (9) documents were tendered and admitted in evidence marked as Exhibits C1 – C9 respectively. CW1 was cross-examined on 21.02.2022 thereafter he closed his case.
On behalf of the Defendant, one Okunola Ambibola and McMadu Lotana testified as DW1 and DW2 respectively. They both individually adopted their respective witness statements on oath as their evidence before the Court, through DW1 two documents were admitted in evidence and marked as Exhibits D1 – D2 respectively. Through DW2, three documents were admitted in evidenc and marked as Exhibits D1- D3 respectively. DW1 and DW2 were duly cross-examined following which the Defendant closed its case.
DEFENDANT’S FINAL WRITTEN ADDRESS
The Defendant filed its final written address on 06.10.2022 wherein it formulated three issues for determination, to wit:
a) Whether the Claimant has been able to prove negligence on the part of the Defendant for him to be entitled to the declarations he sought the Court to make and claims for general damages in his claims number (i), (ii), (iii), (iv), (v) and (vii) as tabulated in the reliefs claimed.
b) Whether the Claimant has been able to prove by evidence before this Honourable Court that the Defendants owe him any other or further special duty of care as an employer to warrant the Court to grant him the declarations he sought in paragraph (vi), and orders for general damages in paragraphs (viii), (ix), (x), (xi) and (xii) of his claimed reliefs.
c) Whether by the facts before this Honourable Court, and circumstances of this case, the Claimant’s employment was unlawfully terminated by the Defendant to warrant the Court to make an order for general damages as in paragraph (viii), arrears of salary in paragraph (ix), terminal benefit in paragraph (x), payments in lieu of leave as in paragraph (xi) of his claimed reliefs.
Arguing issue one, Learned Defence Counsel contended that the Claimant has been unable to prove the allegations of negligence on the part of the Defendant that led to the accident of the Claimant. The Claimant had a burden to prove that the Defendant owed him a duty of care, and that he has suffered damages as a result of the Defendant’s breach of that duty of care – Ighreriniovo v SCC Nigeria Ltd (2013) All FWLR (Pt. 700) 1248 -1249. Contrary to CW1’s evidence, the conveyor machine was in good working condition at the time of the accident, CW1 was not working alone; CW1 also negligently switched on the conveyor machine. The failure of CW1 to prove negligence means he is not entitled to the declaration sought before the Court as well as his claims numbers (i), (ii), (iii), (iv), (v) and (vii).
On issue two, Counsel stated that the Defendant did not owe CW1 any further duty of care having provided protective equipment for workers, necessary training and insurance with NSITF including providing necessary incentives for workers’ comfort while at work. The evidence elicited under cross-examination from DW2 with respect to workers not using protective glove does not extend to a worker putting his hand in a machine while it is on. The Claimant has not been able to prove that the Defendant owed him a duty of care as an employer to warrant the grant of reliefs (vi), (viii), (ix), (x), (xi) and (xii).
Canvassing arguments on issue three (3) the Defendant contended that notwithstanding the accident of 23.05.2016, the Defendant paid the Claimant’s medical bills and paid the Claimant salary for almost two (2) years. When the Defendant offered the Claimant vide a letter dated 13.02.2018 his two (2) years full salary as his terminal benefits, the Claimant refused to accept; now the Claimant is asking for same salary and more. The contract of employment between the Claimant and the Defendant is not one with statutory flavour; the Claimant did not tender his contract of employment or the Defendant’s handbook to show his entitlement to what he is claiming. The Claimant cannot ask to be paid for work he did not do, the Claimant’s employment was not unlawfully terminated, he refused to come to work thus the Claimant is not entitled to general damages – Adeniran v NEPA (2002) 14 NWLR (Pt. 786) 30 at 48. Counsel urged the Court to exercise its discretion in favour of the Defendant and dismiss the claims of the Claimant.
CLAIMANT’S FINAL WRITTEN ADDRESS
The Claimant in his final written address filed 21.10.2022 formulated four (4) issues for determination, to wit:
a) Whether Exhibits D5 and D6 to wit the report of the accident made to the NSTIF by the Defendant is inadmissible in view of Sections 102 – 106 of the Evidence Act 2011 and ought not to be relied upon and be expunged from the records of this Honourable Court.
b) Having regards to the facts and circumstances of this case, the pleadings and the evidence adduced at trial, whether the Claimant has proved his case against the Defendant.
c) Whether the evidence of the Defendant was discredited during cross-examination of the Defendant’s witnesses.
d) Whether the Claimant is entitled to the claims before the Court.
Learned Counsel to the Claimant objected to the admissibility of the NSITF forms and documents tendered by the Defendant as according to him they were not certified as required by the Evidence Act – Ibori & Ors v FRN (2011) LPELR-8769(CA). The NSITF documents are official records of the NSITF, which is a public officer, and the only admissible copy of such documents is either the original or the certified copies – Section 104 of the Evidence Act, 2011, Omisore v Aregbesola (2015) 15 NWLR (Pt. 1482) 205. Exhibits D5 and D6 were not certified as required by Section 104 of the Evidence Act, Counsel urged the Court to discountenance the report of accident made to NSITF and expunge same from the records of the Court.
In arguing issues two and three concurrently, Counsel contended that the evidence of the Claimant is clear and cogent and was not discredited or contradicted in any way whatsoever under cross-examination. The Defendant failed to cross-examine the Claimant on the claim of wrongful termination which amounts to an admission. The Defendant also did not prove it paid or was paying the Claimant compensation; the Defendant had a duty to prove the content of paragraph 18 of its Statement of Defence that it vide a letter and cheque offered to pay the Claimant compensation in the sum of his total emoluments for two (2) years, the law is he who asserts must prove, the Defendant did not produce the said letter or cheque.
Not only are Exhibits D1 and D2 documentary hearsay, the narration in Exhibits D1 and D2 of the accident are contradictory, Counsel urged the Court to discountenance same. The purported main actor in the accident one Mr Kenneth was not called by the Defendant to testify. The law is that common employment is not a defence in respect of a claim for personal injuries where the injury is caused as a result of the act or omission of a co-worker – Section 12(1) of Labour Act. The Defendant allegation that the Claimant was negligent by not putting on protective gloves is of no moment as the conveyor machine would still have cut him if he had them on.
On issue four, Counsel contended that it is undisputable that the Claimant has become permanently disabled, same was never denied by the Defendant in its pleadings. The law is where there is a right, there is a remedy – Nyako v Asha (2017) 6 NWLR (Pt. 1562). A claim for damages would only arise if there is a breach of any legal duty to the Claimant. Cost follows event, the essence of costs is to compensate the successful party for part of the loss incurred in litigation – Ero v Tinubu (2012) 8 NWLR (Pt. 1301). Counsel urged the Court to grant all the reliefs claimed by the Claimant.
Upon a careful consideration of the facts and circumstances of this case, the pleadings, evidence adduced and the submissions of Learned Counsel to the parties herein, this Court distils the issues below for determination, namely:
a) In the light of the provision of Section 104 of the Evidence Act, 2011 are Exhibits D2 and D1-3 admissible.
b) Has the Claimant discharged the burden of proof as required to be entitled to judgment in his favour.
The Claimant through his Counsel has objected to the admissibility of the National Social Insurance Trust Fund (NSITF) forms and accident reports tendered by the Defendant in their defence to the Claimant’s suit contending that they violate the provisions of Sections 102 – 104 of the Evidence Act, 2011 and amount to hearsay. The Defendant did not respond to the issues. The position of the law is that where a Court admits a documents that ordinarily is not admissible during trial it can either suo motu or on the objection of a party expunge such documents from its records.
The law does not prevent a party from raising an objection to the admissibility of document simply because at the point of tendering the document no objection was raised to its admissibility. Once a document is unlawfully received in evidence, the Court has the inherent jurisdiction to exclude and discountenance the document. See Osho v Ape (1998) 8 NWLR (Pt. 562) 492. A Court has a duty to admit only admissible evidence, that is, in all proceedings before it, it is expected to only admit and act on evidence which is admissible in law. So if a Court inadvertently admits in admissible evidence, it has a duty not to act upon it – Abuul v BENSU (2003) 16 NWLR (Pt. 845) 59.
The flip side however is that relevancy is cardinal to the admissibility of evidence in legal proceedings. So once a document is relevant to a case, it more often than not does not matter how it was obtained, whether lawfully, unlawfully or by tortuous means, such a document is admissible in evidence. See Sections 1 and 7 of the Evidence Act, 2011. The NSITF forms and documents (Exhibit D2) are relevant to the fact in issue in the instant case; they are however by virtue of the provision of Section 102 of the Evidence Act, 2011 public documents.
Public documents are “(a) documents forming the official acts or records of the official acts of: (i) the sovereign authority, (ii) official bodies and tribunals, or (iii) public, officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and (b) public records kept in Nigeria of private documents.” The NSITF forms are not originals but photocopies, they are therefore not primary evidence. Sections 105 and 104 of the Evidence Act, 2011 requires such public documents to be certified for them to be admissible in evidence in any legal proceedings.
In Ezechukwu v Onwuka (2016) 5 NWLR (Pt. 1506) 529 the Supreme Court held inter alia: “Only certified copies of public documents are admissible in evidence in legal proceedings, and any objection to the admissibility of copies of public documents not properly certified can be raised during a trial.” See also Abdullahi v FRN (2016) 10 NWLR (Pt. 1521) 475. It therefore means that by virtue of Section 105 of the Evidence Act, 2011, copies of documents certified in accordance with Section 104 may be produced in proof of the content of the public documents or parts of the public documents of which they purport to be copies. See Ekere v Emmanuel (2022) 11 NWLR (Pt. 1841) 339.
Section 104 of the Evidence Act, 2011 requires every public officer having custody of a public document to when issuing a copy of such document issue it together with a written certificate at the foot of the document stating that it is a true copy of such document. The public officer is also required to on the written certificate state his official title, his name, the date. Exhibit D2 – the NSITF forms have a stamp seal thereon that reads “out-going, page, sign and date”. There is nothing indicative of the official title of the public officer that issued the document, the term “out-going” is not synonymous with “certified true copy”. Where the wordings of a statute are clear they should be given their plain and ordinary meanings. The provision of Section 104 of the Evidence Act, 2011 are quite clear and unambiguous, although Exhibit D2 (the NSITF forms) are obviously relevant and were pleaded, coming from a public office it required proper certification which in turn affects it admissibility.
Evidence relied upon in Court must be pleaded, relevant and admissible. The failure to properly certified the NSTIF forms (Exhibit D2) is a defect that is capable of affecting its admissibility but not necessarily its credibility. The presumption of genuineness may inure in its favour notwithstanding the apparent defect in the face of the certification, as the law requires only substantial compliance in form for certification – NBA v Kalejaiye (2016) 6 NWLR (Pt. 1508) 393, Section 146 of the Evidence Act, 2011. In the light of this, it is my considered view that the presumption of genuineness inures on Exhibit D2 regardless of whatsoever defects that appears on the face of the certification of Exhibit D2 (NSITF forms). Accordingly, the objection of Learned Counsel to the Claimant as regards the admissibility of Exhibit D2 (NSITF forms) is hereby overruled and discountenanced. I so hold.
On the contention about the inadmissibility of Exhibits D1-3 (reports of the accident that took place on 23.05.2016 by staff of the Defendant) being documentary hearsay. Documentary evidence is hearsay when it seeks to establish the truth of what is contained in the document and not to establish the fact that it was indeed made. See Metuh v FRN (2020) 7 NWLR (Pt. 1723) 325. However, evidence of a statement made to a witness by a person who is not called as a witness may not be hearsay. It amounts to hearsay and becomes inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was made. See Abadom v State (1997) 1 NWLR (Pt. 479) 1.
Documentary evidence that amounts to hearsay is inadmissible and lacks probative value – Sections 37 and 38 of the Evidence Act, 2011, Saraki v FRN (2018) 16 NWLR (Pt. 1646) 405. While the content of Exhibit D1 (report of accident addressed to head of the Defendant) simply reports that there was an industrial accident that lead to a deep cut on the Claimant’s right wrist on 23.05.2016 by 1.00am and from preliminary inquiries the Claimant and his co-conveyor operator one Mr Kenneth each told their own sides of the story and that further investigations would be conducted, exhibits D2 and D3 (handwritten reports of the accident) do appear to try to establish the truth of what transpired that led to the Claimant’s accident.
The authors of Exhibits D2 and D3 (reports of accident) respectively each relied on what they were told by persons not whose names were not mentioned or who were not called as witnesses as the basis of making their reports. I am of the considered view that same amounts to hearsay which is inadmissible and lacks probative value. Consequent upon this, I find that Exhibit D1 (report of accident to head of the Defendant) does not amount to documentary hearsay, it is relevant, was pleaded and admissible, Learned Claimant’s Counsel submissions as to its inadmissibility are hereby discountenanced. On the contrary, I find Exhibits D2 and D3 (handwritten reports of the accident) are documentary hearsay evidence and are therefore inadmissible and are accordingly marked tendered but REJECTED. I so find and hold.
Having dealt with the preliminary issues of the admissibility of certain documents, this Court shall proceed with consideration of the substantive suit. The position of our laws is that civil cases are decided on the preponderance of evidence or on the balance of probabilities – A.G., Fed v Anuebunwa (2022) 14 NWLR (Pt. 1850) 211. Generally, in civil cases, the burden of proof lies on the party who asserts the affirmative to adduce cogent, credible and sufficient evidence in support of his assertion. Where a Claimant, as in the instant case, seeks declaratory reliefs the burden of proof lies on him in establishing to the satisfaction of the Court his entitlement to such declaratory reliefs. This is so as declaratory reliefs are not granted as a matter of course, even on the admission of the Defendant or its failure to defend the suit – Akinbade v Babatunde (2018) 7 NWLR (Pt. 1618) 366 at 392, F-H.
The Claimant relief one is for a declaration that the injury suffered by the Claimant was occasioned during his engagement and under the immediate control and consent of the Defendant. Relief two is for a declaration that the Defendant has a duty of care by ensuring the machinery and equipment the Claimant was operating in the course of the business was at all times in a good and safe condition before, during and after daily operations of the said machinery. In an attempt to prove this, the Claimant at paragraphs 10 and 11 of his evidence in chief (written deposition) stated amongst other things that during the period when the accident happened, rather than having two staff operating the conveyor machine, the Claimant was the only one operating the machine as his other colleague was on his annual leave.
CW1 however under cross-examination appeared to have contradicted himself when he stated “…two people usually work on the machine. One of us went on break. Usually somebody should stand in for him, the stand in man suddenly started the machine while my hand was still inside the machine, so the machine cut off my hand…The name of the person that suddenly put on the machine is Kenneth…” CW1 was categorical in his evidence in chief that he was the only one operating the machine at the time the accident occurred but this piece of was contradicted by the Claimant himself under cross-examination.
There is no doubt that the accident that took place on 23.05.2016 occurred while the Claimant was under the Defendant’s engagement, exhibits C6, D2 (report of accident) lend credence to this. As regards the issue of the injury being under the immediate control and consent of the Defendant, apart from paragraph 13 of CW1 written deposition where he stated that the Defendant owed him a duty of care and breached this duty by failing to keep the conveyor machine in safe and working condition, there is no where the Claimant pleaded that Mr Kenneth was the one who put on the switch of the conveyor machine that lead to his accident. It is the law that evidence on facts not pleaded goes to no issue. CW1’s evidence in this regards are hereby discountenanced. I so hold.
CW1 alleges that the Defendant owed him a duty of care and breached this duty when it failed to keep the conveyor machine in a safe and working condition. Duty of care means taking reasonable care to avoid acts or omissions which one can reasonably foresee would likely injure one’s neighbor. Thus, where there is sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the wrongdoer, carelessness on his part may have caused damage to the other party then the duty of care arises – Oilserv Ltd v L.A.I. Co (Nig) Ltd (2008) 2 NWLR (Pt. 1070) 191. The Claimant thus had a burden to establish that by the nature of his job there exists a proximity of relationship of neighbourhood and by reasonable contemplation, carelessness on the part of the Defendant caused his accident – Owoyele v Mobil Prod (Nig) Unltd (2021) 5 NWLR (Pt. 1768) 70.
It is clear from the evidence of both the Claimant and the Defendant that the accident occurred because the Claimant had his hand inside the machine and the switch of the machine was “mistakenly” put on. The Claimant did not adduce any evidence to support his allegation that the conveyor machine was not in a safe and working condition; he also did not allege that it was the failure of the Defendant to provide protective gear or safety cover on the conveyor machine that caused the damage to his hand. The common law position on the duty of care owed to a servant by a master is one that is not absolute, irrespective of whether the duty of the master arises in tort or out of a contract of employment.
The law requires that in master-servant relationship obligations must be performed by the exercise of due care and skill. Although, a high standard of care is expected, it is desirable that the Courts should exercise vigilance in ensuring that the common law duty owed by a master to his servants should not be enlarged until it is barely distinguishable from his absolute obligations. See IITA v Amrani (1994) 3 NWLR (Pt. 332) 296. Was it then ordinarily foreseeable that the Defendant failed to use reasonable care in its conduct or operational set-up which caused danger or injury to the Claimant when operating the machine? In his evidence in chief, CW1 stated that he was employed by the Defendant since the year 2013 as a conveyor machine operator.
It therefore follows that CW1 had reasonable experience and training in operating the conveyor machine for almost three (3) years. CW1 presumably knew the “do’s and don’ts” or reasonably ought to have known. The Claimant did not adduce any evidence that in the course of the years of operating the conveyor machine for the Defendant, the said conveyor machine was not working properly or had technical problems which the Defendant refused to fix or that the Defendant did not avail him necessary training and protective gear to enable discharge his duties with due care and skill. It is when the CW1 adduce credible, cogent evidence in this regards in support of his claims that the onus would then shift to the Defendant to prove otherwise.
In other words, he who asserts must prove. The Claimant had a burden to prove that his assertion at paragraph 13 of his Statement of Claims alleging that the Defendant owed him a duty of care which it breached by failing to keep the conveyor machine in a safe and working condition. I am therefore of the considered view that the Claimant has not adduced satisfactory evidence to warrant the grant of reliefs one (1) and two (2); accordingly these claims fails and are dismissed. I so find and hold.
Relief three (3) is for a declaration that the Defendant breached the duty of care on 23.05.2016 by willful omission or intentional negligence, which resulted into injury and permanent bodily damage suffered by the Claimant till date. The burden of proving willful omission and intentional negligence of the Defendant lies on the Claimant who wishes the Court to believe this fact or allegation – Section 136 of the Evidence Act, 2011. While CW1 maintained under cross-examination that it was Mr Kenneth that put on the switch of the conveyor machine, the Defendant on the other hand alleges that it was the Claimant who mistakenly put the switch on. There however appears to be a problem with the Defendant’s narrative as it gives varying accounts of how the switch was allegedly put on by the Claimant even from those who claimed to have heard from the eye witness – Mr Kenneth. This makes the narrative of the Defendant as regards who put on the switch of the conveyor machine shaky and difficult to believe.
It seems the Defendant was being economic with the truth which gave rise to the inflation of the narrative of how and which part of the Claimant’s body put on the switch. As noted earlier by this Court, the challenge with CW1’s evidence that it was Kenneth that put on the switch of the conveyor machine is that it is evidence on facts not pleaded and so goes to no issue. Learned Claimant’s Counsel ought to have sought an amendment of the Claimant’s pleadings to bring same in line with the evidence already before the Court. Counsel nevertheless argues that by virtue of Section 12(1) of the Labour Act an employer who is sued in respect of personal injuries caused by the negligence of a person employed by him, cannot deny liability on the grounds that the person that caused the injury was at the time of the injury, in common employment with the person injured.
Learned Defence Counsel on the other hand argues that the Claimant failed in his duty to prove that the Claimant owed him a duty of care. There is no doubt in an employer-employee relationship, the employer has a duty of care to the employee and to take necessary steps or precaution to prevent foreseeable hurt or injury to the employee or any third party that comes to the workplace. In SCC (Nig) Ltd v Anya (2012) 9 NWLR (Pt. 1305) 213 it was held inter alia: “The law on employer/employee responsibility is that every employer has the management responsibility to provide for his employee(s) safe and conducive work place, free of hazards…” The fact that CW1 did not provide before the Court his letter of appointment and or contract of employment notwithstanding, the Defendant did not deny that the Claimant was its employee and the law is unequivocal that facts pleaded need no further proof.
The Claimant however did not adduce cogent, credible evidence that revealed the Defendant’s intentional negligence, or willful omission that led to his injury. The evidence elicited by Learned Claimant’s Counsel during cross-examination of DW2 on staff not putting on protective gear or gloves while working from exhibit D4 would have gone a long way to prove willful omission or intentional negligence by the Defendant capable of leading to the kind of injury suffered by the Claimant on having the accident. I am of the humble view that the Claimant has not adduced satisfactory evidence for the grant of relief three (4). Same accordingly fails and is hereby dismissed. I so hold.
The Claimant’s relief four (4) is for a declaration that the Claimant is entitled to adequate and commensurate compensation by the Defendant for the loss of his right hand due to the damage done to him, and the injury sustained and suffered by him even in the absence of proof of negligence by the employer. Compensation usually arises as a remedy to an injury, it is to make good or do something good after something bad happens. To compensate implies to adjust or adapt to a change, often a harm or deprivation. Section 72 of the Employee’s Compensation Act, 2010 defines compensation as “any amount payable or service provided under this Act in respect of a disabled employee and includes rehabilitation.”
CW1 has been deprived of the functionality of his right hand, part of which has been amputated, exhibit C5 depicts the aftermath of the amputation of the Claimant’s right hand. Exhibit C9 acknowledges that CW1 is entitled to award of compensation using the yardstick set out in the Employee’s Compensation Act, 2010. In fact, Section 7(1) of the Employee’s Compensation Act, 2010 is categorical that an employee who sustains an injury in the workplace is entitled to payment of compensation. Section 7(1) of the Employee’s Compensation Act provides: “an employer, whether or not in a workplace, who suffers any disabling injury arising out of or in the course of employment shall be entitled to payment of compensation in accordance with Part IV of this Act. Sub-section (4) reads: “Where the injury or disease is caused by accident and the accident arose out of the employment, unless the contrary is shown, it shall be presumed that the injury occurred in the course of the employment.”
Part IV – Section 22(1) of the Employee’s Compensation Act, 2010 provides: “subject to this Act, if a permanent partial disability results from the injury of the employee, the Board shall – (a) estimate the impairment of earning capacity from the nature and degree of the injury; and (b) pay the employee’s compensation that is a periodic payment equal to 90 percent of an estimate of the loss of remuneration resulting from the impairment. (2) The compensation referred to in sub-section (1) of this section shall be determined and calculated in accordance with the second schedule to this Act…”
The above cited provisions of the Employee’s Compensation Act, 2010 lends further credence to the fact that the Claimant is entitled to compensation for the injury and resultant disability arising from the industrial accident that occurred on 23.05.2016. I am satisfied that CW1 has adduced unequivocal evidence that he was injured at his workplace, that is, the premises of the Defendant where CW1 usually performs work and or his duties. It is hereby declared that the Claimant is entitled to adequate and commensurate compensation by the Defendant for the loss of his right hand due to the damage done to him even in the absence of proof of negligence by the employer. I so hold.
Relief five (5) seeks a declaration that the Claimant became permanently disabled as a result of the industrial accident that made the Claimant to lose his right hand. Exhibit C4 shows CW1’s right hand shortly after the accident with a bandage around his right wrist. Exhibit D2 (the doctor’s report attached to NSTIF forms) indicates that while CW1 was undergoing treatment for the injury on his right wrist observing gangrenous swelling of his veins amongst others, the doctors recommended the amputation of CW1’s hand from below his elbow. Exhibit C2 is the memorandum of understanding executed by relatives of the Claimant and the Defendant’s representative prior to the amputation. I therefore find that the amputation of CW1’s right hand occasioned a disability. Accordingly, it is declared that the Claimant has become permanently disabled as a result of the industrial accident that made the Claimant to lose his right hand. I so hold.
The Claimant’s relief six (6) is for a declaration that given the facts and circumstances of this suit, the Claimant’s employment was unlawfully terminated. Exhibit C1 is CW1’s identification card issued by the Defendant, as pointed out by Learned Counsel to the Defendant, CW1 did not produce his letter of appointment or the contract of service to depict the nature of the contract of employment he had with the Defendant, whether statutory or master-servant relationship under the common law. Neither did he adduce evidence of the termination of his employment by the Defendant nor what terms of the contract of service were breached by the Defendant in the employment contractual relationship. It can be safely presumed from the facts of this case that the employment relationship between the Claimant and the Defendant was not statutory but a mere master-servant relationship probably governed by the letter of appointment.
The law is settled that in cases governed only by agreement of the parties and not by statute, removal of a servant by termination or dismissal would be in the form agreed to. Any other form of dismissal or termination connotes only wrongful termination or dismissal. It therefore does not warrant a declaration of such dismissal as void. See Obanye v UBN Plc (2018) LPELR-44702(SC). The Defendant adduced evidence that following the industrial accident where CW1 sustained grievously injury he never resumed work with the Defendant, the Claimant did not refute this piece of evidence, it is therefore deemed admitted.
Under the common law, failure to report to work or duty is a gross misconduct that results in dismissal or termination of the employment. CW1 was categorical in his evidence in chief at paragraph 18 that the Defendant paid his salary till December 2017 after the accident on 23.05.2016. CW1’s evidence in paragraph 28 and 29 of his evidence in chief seems contradictory with that at paragraph 18, first CW1 alleges that refused to receive the letter of termination issued by the Defendant and after that he went to the Defendant’s premises and was treated like a visitor. The meeting was supposedly held in January 2017, there is no evidence that CW1 went on sick leave after the accident and was required to resume about six (6) months after the accident.
Whether the Defendant paid the Claimant his salaries till December 2017 on compassionate grounds or out of a “guilty conscience” one cannot tell but the Claimant cannot in all good conscience stay away from work and expect to be paid by the Defendant continually or that his employment would still subsist without him discharging his duties or other duties assigned to him by the Defendant, this is regardless of the fact that at the time of cross-examining DW1, the Defendant did not have any disabled staff in its employment. CW1’s staying away from work without required permission signifies tacit withdrawal of service. In view of this, I find that the Claimant has failed to adduce cogent, credible evidence that shows his employment was wrongfully or unlawfully terminated. This claim consequently fails and is hereby dismissed. I so hold.
Relief seven (7) seeks the award of N10,000,000.00 (Ten Million Naira) as general and aggravated damages for the Claimant’s permanent disability. Damages are pecuniary compensation, obtainable by success in an action for a wrong which is either a tort or a breach of contract. The compensation being in the form of a lump sum awarded at the time, unconditionally and generally – Agbanelo v UBN Ltd (2000) 7 NWLR (Pt. 666) 534. In other words, damages are money claimed by or ordered to be paid to a person as compensation for loss or injury. So where a person is wronged and succeeds in proving his or her claims such party is usually entitled to receive a sum of money has compensation for such wrong or injury - UBN Plc v Chimaeze (2014) 9 NWLR (Pt. 1411) 166.
The rationale for awarding damages is to compensate the aggrieved party for the loss or place such party in a position in which he would have been if he had not suffered damages or injury for which he is claiming compensation – GTB v Ekemezie (2016) 2 NWLR (Pt. 1497) 579. Aggravated damages are however on a class of their own, they are damages on an increased scale over and above the damages usually awarded. They are awarded to compensate a party for any aggravated harm done to him by the Defendant. See Jaiyesimi v Darlington (2022) 9 NWLR (Pt. 1835) 335. The Court is expected to award aggravated damages when it is pleaded and proved; the malevolence of the tortfeasor is clearly shown.
Put differently, in a claim for aggravated damages, the motive and conduct of the Defendant aggravating the injury to the Claimant would be taken into consideration in the assessment of compensatory damages. The Claimant needs show that from the conduct of the Defendant, the Defendant was high-handed, outrageous, insolent, vindictive, oppressive or malicious showing contempt of the Claimant’s rights or disregarding every principle which actuates the conduct of civilized men. See WPC Ltd v Fayemi (2017) 13 NWLR (Pt. 1582) 218. This Court has earlier found and held that the Claimant had not adduced satisfactory evidence to show that the conduct of the Defendant was negligent or such that does not confer to the conduct of civilized men.
It is not sufficient to allege that it was Mr Kenneth, a co-employee that occasioned the industrial accident that led to the amputation of the Claimant’s right hand. CW1 needed to adduce evidence that the Defendant’s machine was not working properly or that Mr Kenneth was not trained to man the conveyor machine. The Claimant did not show the Defendant’s motive, conduct that pointed to it being oppressive, high-handed. Was the fact that CW1 was working by 1.30am a pointer that it was high-handed? I think the answer is in the negative, CW1 did not plead and adduce evidence that given that he was working by 1.00am it was risky as it was normally a time for him to sleep and working by that time deprived him of his need sleep and increased his vigilance to working on such dangerous machine.
The principles governing the award of general damages or compensatory damages are different from the principles governing the award of aggravated damages. See Usang v Hanseatic Intl Ltd (2009) 11 NWLR (Pt. 1153) 522. The Claimant breached his contract of employment by failing to resume work, the amputation of his right hand notwithstanding. Two wrongs do not make a right. CW1 also admitted receipt of salaries for several months after the industrial accident. The payment of the Claimant’s salary by the Defendant for several months does not necessarily represent compensation. Likewise, the offer to pay two (2) years salary to the Claimant is not adequate compensation for the permanent disability of the Claimant. The Claimant had a duty to show that owing to the amputation of his right hand there is now a loss of amenities of life, he cannot do most things he ordinarily did to generate income for himself and his family. See Iyere v BFFM Ltd (2008) 18 NWLR (Pt. 1119) 300.
I therefore find that the Claimant has not adduced satisfactory credible evidence that shows that the motive, conduct of the Defendant was such that was repressive, oppressive, high-handed occasioning his injury and that following his injury there has been a loss of amenities of life revealing his entitlement to aggravated damages. The Defendant did not argue that since the Claimant was placed on insurance as required by law with NSITF he is not entitled to any other compensation or double compensation. So having found earlier that the Claimant had adduced credible, cogent evidence that he sustained the injury that led to the amputation of his right hand in the Defendant’s workplace and now requires an artificial hand to support his living, I find and hold that the Claimant is entitled to damages and compensation for the injury suffered in the sum of N1,000,000.00 (One Million Naira) only. The award of damages is at the discretion of the assessing Court - Sahara Energy Resources Ltd v Oyebola (2020) LPELR-51806(CA). Accordingly, this leg of the Claimant’s claims succeeds in part. I so hold.
The Claimant’s relief eight is for the award of N3,000,000.00 as general damages for unlawful termination of the Claimant’s employment. This Court had earlier found and held that the Claimant did not adduce cogent, credible and sufficient evidence to show that his employment was unlawfully terminated by the Defendant. It is the law that where the main claim fails, the ancillary claim or claims incidental to the declaratory claim must also fail. See Yil v Ngumar (1998) 8 NWLR (Pt. 560) 125. In the light of the above, I find and hold that the Claimant has not adduce credible, cogent evidence to warrant the grant of this claim and same accordingly fails and is hereby dismissed. I so hold.
Reliefs 9, 10 and 11 are claims of different sums tied to the employment relationship between the Claimant by the Defendant, the Claimant did not adduce any evidence of his contract of service or employment with the Defendant to show his entitlement to this claims. The Claimant is seeking payment of his salary from December 2018 until this suit is concluded and also a declaration that the termination of the Claimant’s employment is unlawful at the same breathe, this is not acceptable. See Ezekwere v Golden Guinea Brew. Ltd (2000) 8 NWLR (Pt. 670) 648. The Claimant cannot be respectfully seeking payment of his salary from December 2018 yet seeking damages for unlawful termination of his employment. In cases of private employment, the employee is usually only entitled to damages in the quantum of the salary in lieu of notice where the employee proves the employment was unlawfully terminated.
The absence of the Claimant’s contract of employment makes it difficult to ascertain whether or not the Claimant is entitled to terminal benefits or leave payment for the number of years he worked for the Defendant. Courts do not decide cases on speculation or sentiments but on laws and facts. In view of the above, I am of the considered view that the Claimant has failed to adduce satisfactory evidence to entitle him to the grant of reliefs 9, 10 and 11 same accordingly fails and are hereby dismissed. I so hold.
The Claimant’s relief twelve is for cost of litigation at the sum of N500,000.00. It is the law that costs follows event and though debatable, it is usually awarded to a successful party in litigation who has proved his entitlement to same in the class of special damages - Nwanji v Coastal Services Nig Ltd (2004) LPELR-2106(SC). Only few of the Claimant’s claims succeeded, it would therefore appear unconscionable to award him cost of litigation. In the light of this, this claim fails and is therefore dismissed. I so hold.
On the whole, the Claimant’s claims succeed in part. For clarity, the orders of the Court are as follows, other than the orders set out below all other claims fail and are hereby dismissed:
a) IT IS DECLARED the Claimant is entitled to adequate and commensurate compensation by the Defendant for the loss of his right hand due to the damage done to him, and the injury sustained and suffered by him even in the absence of proof of negligence by the employer.
b) IT IS DECLARED the Claimant has become permanently disabled as a result of the industrial accident that made the Claimant to lose his right hand.
c) The Defendant is ordered to pay the Claimant the sum of N1,000,000.00 (One Million Naira) only as general damages and compensation for the loss of the Claimant’s right hand and permanent disability as a result of the industrial accident on the premises of the Defendant company.
No order as to costs, parties to bear their respective cost.
Judgment is accordingly entered.
Hon. Justice M. N. Esowe, FCIArb