IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABEOKUTA JUDICIAL DIVISION

HOLDEN AT ABEOKUTA

BEFORE HIS LORDSHIP: HON. JUSTICE S. A. YELWA……JUDGE

THIS WEDNESDAY, 10TH DECEMBER; 2025          SUIT NO: NICN/AB/12/2024.

BETWEEN:

MR. OSANYINGBEMI AYOBAMI SAMSON ------------------------ CLAIMANT

AND

GOODWILL CERAMIC LIMITED -----------------------------------DEFENDANT

JUDGMENT

By a General Form of Complaint accompanied by Statement of facts and all other processes dated and filed on 29/7/2024 taken out by the claimant against the defendant wherein claiming from the court against the Defendant the following reliefs:

1.     AN ORDER directing the Defendant to pay the Claimant the sum of N100,000,000 (One Hundred Million Naira) only as a result of permanent injury which the Claimant sustained due to services rendered to the Defendant.

2.     A DECLARATION that the Claimant is entitled to all the salary arrears as owned by the Defendant from December, 2020 till determination of this suit at the rate N32,000 per mouth.

3.     AN ORDER of this Honourable Court directing the Defendant to pay the Claimant 25% interest on the outstanding of salary/allowances from the 1st day of December,2020 until the final payment is made.

4.     AN ORDER of the Honourable Court directing the Defendant to pay the Claimant sum of N1,376,000 (One Million, Three Hundred and Seventy-Six Thousand Naira) only being outstanding arrears of salary/allowances to the Claimant as full final payment from the 1st day of December,2020 till July,31st 2024.

5.     AN ORDER directing the Defendant to pay the Claimant the sum of N30,000,000 (Thirty Million Naira) only being a specific damage having been denied enjoyment of his life like other human beings.

6.     GENERAL DAMAGES in the sum of N30,000,000 (Thirty Million Naira) only for psychological trauma of having been deprived of his due salary/allowances for upward of 3 years.

7.     COST of this action N1,000,000 (One Million Naira) 0nly.

In response to the Claimant’s claim, the Defendant by leave of this court sought and obtained on 13/2/2025, filed its statement of defence alongside the necessary processes dated 6th December 2024.  The Claimant filed a Reply to the Defendant’s Statement of Defence dated 13th of February, 2025. This case was earlier initiated and filed in the Ibadan Judicial Division of this Honourable court but subsequently transferred to this court, sitting thereon commenced on 13/2/2025.

CASE OF THE CLAIMANT

The Claimant avers that while working as an employee in the Defendant’s work place had an accident with a machine which injured his cheek while his jaw and right hand (active hand) was badly injured that made the Defendant conveyed him to hospital where he was admitted and underwent serious surgery. The Claimant claims that the Defendant abandoned him at the Hospital and his salary was subsequently reduced by approximately 50% (that is, from N32,000 to N16,000) during the period of his being in the hospital and upon completion of the Claimant stay at the hospital he was taken by the defendant, even his reduced pay was stopped by the Defendant with no reason disclose to him. The active hand of the Claimant is incapacitated and disabled as he wouldn’t be able to use his right hand for any gainful work again as such has irredeemably jeopardised his future and rendering him unemployable. This arose out of the defendant’s lack of care in all respect. It is the contention of the claimant that the accident would not have happened, if not for the sheer carelessness exhibited by an unsafe fellow servant of the defendant who switched on the aforesaid machine while the claimant was still working. Claimant further maintained he made corresponding demands to the defendant through counsel for payments of his dues, but to no avail due to the defendant’s wrong estimated calculations.

CASE OF THE DEFENDANT

The Defendant stated that the Claimant was a former employee of the Defendant but unfortunately, he sustained injury in an industrial accident which was never caused by the Defendant or otherwise, hence the Claimant alleged negligence on the part of the Defendant. Defendant stated that when the maintenance man was fixing the fault on the machine, the claimant inadvertently went to the machine without observing caution to know whether the machine had been fixed or not and in the process, the maintenance man who cleared all the obstacles at the machine point went to the control switch to test run the machine which unfortunately injured the claimant who was there inadvertently at that moment, hence there was no negligence on the part of the defendant. Furthermore, the defendant contended immediate taking the claimant to hospital where adequate treatment was given to him. The defendant denied being negligent to the industrial accident because cautionary equipment were all provided to the workers including the claimant for their safety, at work and that the defendant had given treatment to the claimant.

The Defendant however avers that in respect to the claimant’s injury, only the National Social Insurance Trust Fund (NSITF) can calculate amount payable to any injured worker in the course of duty not the claimant.

REPLY TO THE STATEMENT OF DEFENCE OF THE DEFENDANT:

In reply to the statement of defence of the defendant, the claimant filed his reply dated 13/2/2025 wherein denied all averments of the defendant and reiterated the claims as contained in the statement of facts and urged the court to hold that the defendant’s statement of defence filed cannot be substantiated and same be dismissed.

TRIAL

Trial commenced on 8th May, 2025, with Osanyingbemi Ayobami Samson who testified as  CW1. He adopted his written statement on oath deposed to on the 29th of August, 2024 and tendered eleven (11) documents, but 10 were admitted in evidence, which are listed as follows:

1.     Exh. C1 is Affidavit of compliance.

2.     Exh. C2 is Claimant’s picture before the incident.

3.     Exh. C3 is Claimant’s picture during the incident.

4.     Exh. C4 is A. A. Isiolaotan letter of 10/5/2021.

5.     Exh. C5 is Ifoluwa’s reply the letter of 25/5/2021.

6.     Exh. C6 is A.A. Isiolaotan’s letter of 26/7/2021.

7.     Exh. C7 is Recompensation letter of 20/9/2021.

8.     Exh. C8 is A. A. Isiolaotan’s letter of 5/11/2021.

9.     Exh. C9 is A.A. Isiolaotan’s letter of 17/11/2021.

10. Exh. C10 is Memorandum of claim for settlement dated 18/4/2024.

CW1 was thereafter cross-examined by the counsel for the Defendant, and there was no re-examination. The case of the Claimant was then closed by the court on the application of counsel for the claimant.

The Defendant opened its defence on the 10th day of July, 2025, and called its sole witness Mr. Partick Bargi called as DW1 who adopted his witness written statement on oath sworn to, on 6/12/2024. The Defendant tendered four (4) set of pictures and a certificate of authentication tendered alongside with, which are admitted in evidence and marked as exhibits D1-D5. They are Exh. D1, Exh. D2, Exh. D3 and Exh. D4 all are Pictorial evidence of safety measures provided by the Defendant. While Exh. D5 is certificate of authentication.

DW1 was then cross-examined by the Claimant’s counsel. There was no re-examination, and the case of the Defendant was then closed. Trial was then closed and parties were ordered to file and serve their respective Final Written Addresses in compliance with this rules.

DEFENDANT’S FINAL WRITTEN ADDRESS

Defendant filed its final written address with leave of court dated 19/9/2025 on 16/10/2025 wherein, counsel submitted a sole issue for determination to wit;

“Whether the Defendant was negligent or caused the industrial accident upon which the Claimant sustained injury.”

Learned counsel in his submission stated from the onset, that the industrial accident which injured the Claimant was an unforeseeable accident for which not caused by anybody, not even by other employees in the factory including the Defendant. Counsel contended that the Claimant failed to prove the necessary elements of a negligence claim. Counsel referred the court to the case of Kabo Air Ltd v. Mohammed (2014) LPELR- 23614 (CA)

It is the submission of counsel that the incident was an Accident. Counsel relied on the legal definitions of an accident as an unwilled, unexpected, and unforeseen event that occurs without fault. Counsel maintain that the event was a surprise to everyone at the company.

Learned counsel submitted that the Claimant has made general allegations of negligence but failed to provide specific particulars of negligence to substantiate the claim.  Counsel argued that the Claimant has not proven the three essential conditions for negligence which includes; a duty of care was owed (this is admitted, as the Claimant was an employee), that duty was breached, and that the damages resulted from that breach.

Counsel further submitted that adequate safety measures were in place. The defendant  provided safety gadgets (jacket, boot, helmet) and had safety cautions and measures in place, as evidenced by exhibits (Exh. D1-D4). Counsel argued that the defendant’s conduct met the required legal standard. Counsel contended that the accident may have resulted from the Claimant’s own failure to obey safety cautions placed around a faulty machine he approached. Counsel relied on the case of  Jimmy v. State (2013) LPELR- 20333 (SC).

It is the submission of counsel that the Claimant’s claims for special damages (totaling hundreds of millions of Naira and specific salary amounts) are invalid because they were not specifically pleaded or supported by evidence like pay slips or bank statements. Counsel contended that the Defendant acted responsibly after the accident by rushing the Claimant to the hospital, covering all medical bills (including at a specialist hospital), and paying his salary while he was recovering, actions the Claimant allegedly confirmed under cross-examination.

Counsel urged the court to dismiss the Claimant’s suit entirely, as the Claimant has failed to prove negligence, establish the Defendant’s fault for the accident, or substantiate the financial damages claimed.

CLAIMANT’S FINAL WRITTEN ADDRESS

The claimant in response, filed his final written address on 16th October, 2025, and submitted a sole issue for determination to wit;

“Whether in all circumstances of this case, the Claimant is entitled to the reliefs sought in this Suit.”

Learned counsel submitted that the Claimant is entitled to all the reliefs sought because he has proven, on a preponderance of evidence, that the Defendant was negligent, leading to a severe industrial accident that caused him permanent injury, and that his employment was subsequently wrongfully terminated. Counsel referred the court to the case of Olodo v. Josiah (2010) 18 NWLR (pt. 1225) 653 at 673.

Counsel submitted that on 15/12 2020, the Claimant was instructed to remove sand from a faulty machine that had been powered off and that while he was doing that, another worker without adequate communication, “unimaginably switched-on” the machine, causing catastrophic injuries. These included severe facial injuries and the permanent paralysis of his right dominant hand.

Counsel further submitted that the accident was attributed to the Defendant’s sheer carelessness, which specific failures includes, lack of adequate communication systems between the work area and the power point, failure to provide any special protective clothing or safety kits, as required by the Factories Act, no functional First Aid Box was available on site, allowing an unskilled worker to operate the machinery without proper procedures. Counsel relied on the case of Tecno Mech. (Nig.) Ltd v. Ogunbayo (2000) 1 NWLR  (pt. 639) 150.

Counsel submitted that the doctrine of Res Ipsa Loquitur,  the principle of “the thing speaks for itself” applies, meaning that the accident itself is evidence of negligence, as such events do not normally occur without a lack of care. Counsel contended that the Claimant has been permanently incapacitated, cannot use his dominant hand for gainful work, and his future has been “irredeemably jeopardized.  Also,  counsel argued that the Claimant is in constant pain and has suffered a loss of amenities of life, which he seeks damages for pain and suffering (past, present, and future), loss of amenities of life (inability to work, pursue hobbies, etc.)

It is the submission of counsel that while the Claimant was hospitalized and permanently disabled due to a workplace injury caused by the Defendant’s negligence, the Defendant reduced his salary from ?32,000 to ?16,000 during his admission and then stopped paying his salary entirely upon his discharge from the hospital. This action is framed as a wrongful and unlawful termination of his employment without notice or payment of entitlements.

Counsel contended that the defendant’s sole witness was not present at the incident and lacked crucial knowledge. Counsel also urged the court to disregard the defendant’s photographic evidence (Exh. D1-D4), characterizing it as fabricated. Counsel argued that the Claimant asserts that he has discharged his legal burden by providing credible and unchallenged evidence for his claims, shifting the burden to the Defendant to rebut them.

 

DECISION OF THE COURT

I have carefully considered the processes filed by the parties, the evidence adduced before the court in proof and in defence of the claim. I have equally perused the written addresses of counsel for both sides and listened attentively to submissions of counsel for the parties while adumbrating on their respective final written addresses.

In considering this suit, I will focus my attention to the issues raised by both learned counsel for the parties in their respective written addresses. That is to say: (1) Whether the defendant was negligent or caused the industrial accident upon which the claimant sustained injury. (Fomulated by the defendant’s counsel) and (2) Whether in all circumstances of this case, the claimant is entitled to the reliefs sought in this suit. (formulated by the claimant’s counsel).

The claimant in this case seeks for grant of seven reliefs enumerated on the face of his processes filed. The first relief is an order for payment of the sum of N100,000,000 (One Hundred Million Naira) only for the injury sustained due to the services rendered by the claimant during the course of his employment.

The second relief is for a declaration that the claimant is entitled to all the salary arrears owed by the defendant from December 2020 till the determination of this suit at the rate of N32,000 per month. The third relief is for an order of this Honourable Court directing the defendant to pay the claimant 25% interest on the outstanding of salary/allowances from the 1/12/2020 until the final payment is made.

The fourth relief is for an order of the Honourable Court directing the defendant to pay the claimant sum of N1,376,000 (One Million, Three Hundred and Seventy-Six Thousand Naira) only being outstanding arrears of salary/allowances to the Claimant as full final payment from the 1/12/2020 till July,31st 2024.

The fifth relief is for an order directing the defendant to pay the claimant, the sum of N30,000,000 (Thirty Million Naira) only being a specific damage having been denied enjoyment of his life like other human beings.

The sixth relief is for general damages in the sum of N30,000,000 (Thirty Million Naira) only for psychological trauma of having been deprived of his due salary/allowances for upward of 3 years.

The seventh relief is cost of this action at N1,000,000 (One Million Naira) only.

 

Let me begin by saying that it is elementary and of course, basic principle of our jurisprudence that the parties and the court are bound by the case as presented by the parties and so the court must confine itself to the issues properly raised by the parties and no more. A court of law therefore, is not permitted to extend the frontiers of the battle fought by both parties. See KUTI vs JIBOWU (1972) NSCC. 447, 454 455, IROM vs OKIMBA (1998) 3 NWLR pt540 p19 @25, OGIDA vs OLIHA (1986) 1 NWLR pt19 p786,@ 798 and UNION BANK OF NIGERIA PLC vs EMOLE (2001) 18 NWLR pt745 p501 @517 and 518. Therefore, the court and parties are constrained to the claim before the court and not to deviate from it as presented to the court for adjudication. The court cannot, in considering submission of parties make an order that is not a claim before the court. See Tukur vs. Govt., Taraba State (1997) 6 NWLR Pt. 510 p549; Gafar v. Govt., Kwara State (2007) 4 NWLR Pt. 1024 p375 Musa v. Fed. Min., Tourism, Culture Nat. Orientation (2013) 10 NWLR Pt. 1363 p556.

It is needful to state that the law is well settled that claim before a court is circumscribed by the reliefs before the Court as constituted by the prayers. All arguments and findings not related to the prayers are amiss. See SALAMI vs WEMA BANK (NIG) PLC (2010) 6 NWLR pt1190 p341, 353-354, Gabriel Ativie vs Kabel Metal Company Nigeria Ltd (2008).

In the case under consideration, this court will be confined to the reliefs sought by the claimant as they circumscribed the claim of the claimant. In view of this settled principle of law, the court’s business is to see if the evidence adduced by the claimant in proof of her case is cogent, credible and admissible evidence to warrant granting or otherwise of the reliefs sought. The claimant’s claim as can be gleaned from the pleadings and evidence before the court borders on alleged injury sustained by the claimant in the course of his employment with and at the work place of the defendant, which he alleged that while on duty, the belt of the machine with which ceramic tiles are produced stopped rotating because some of the sand used for the production impaired its function. The claimant contended he was instructed by the defendant to remove the sand from the machine. The Claimant averred that without adequate communication, the defendant switched on the machine, thereby causing fatal injuries to him. The claimant alleged that his cheek and jaw was badly injured with the zygomatic bone on the right side of his face broken, and his right active hand permanently incapacitated as a result of the incident in the course. He further maintained that the defendant later took him to hospital where he was admitted and underwent surgery so as to stay alive.

The claimant maintained further that the defendant reduced his salary from N32,000 to N16,000, which was only paid to him for 21 months from the accident and subsequently stopped.

It is clear from the pleadings of the claimant that the relief on compensation was predicated on the alleged personal injury sustained by the claimant while he was carrying out sand from the machine, during which the defendant switched on the machine, during the operation, as a result had a fatal industrial accident whereupon his active right hand was permanently injured and incapacitated. The monetary claim of N100,000,000 (One Hundred Million Naira) being for the injuries and incapacitation of his active right hand while working in the defendant’s factory is the basic claim of the claimant.

But for the defendant, the injury suffered by the claimant was not only as a result of any breach of duty or any negligence on the part of the defendant, irrespectively, the defendant still provided adequate care to the claimant, having  paid some part of salaries when he was still in the hospital. But these could certainly be rated as aftermath of the fact in issue.

The defendant contended that the belt of the machine upon which the Claimant was working on, developed fault and the maintenance man was called upon to fix the fault. However, the claimant inadvertently went to the machine without observing caution to know whether the machine had been fixed or not and, in the process, the maintenance man who first cleared all the obstacles at the machine point in order to observe safety protocols, went to the control switch to test run the machine whether the fault had been fixed and upon switching on the machine, the machine injured the claimant who was there inadvertently at that moment.

Immediately the incident happened, the claimant was taken to the hospital, according to the defendant and adequate treatment was given to him. The claimant had surgery which was procured and paid for by the defendant, and part of his salary was being paid to him.

Defendant alleged that the accident would have been averted if the claimant had observed safety cautions placed at the machine point by maintenance man before going to the power switch to switch on the machine in order to test run faulty the machine upon repairs.

Moreover, the defendant averred that no worker is allowed to use or operate any faulty machine to do any job, and that the unfortunate incident that occurred was an industrial accident which was as a result of no negligence on the part of the defendant. The defendant stated that it did all that was needed to treat the claimant properly in good hospitals as he was never abandoned at any stage of his treatment. The defendant averred also that the demand of the sum of N50,000,000=00 as compensation is unbearable and alarming. Furthermore, the demand of arrears of salaries by the Claimant was uncalled for because the claimant was paid some salaries when he was in the hospital and the claimant had not worked for all those months he was asking for the arrears of salaries.

The defendant however, maintained that there was no time the sum of N35,000,000 was agreed to be paid to the claimant, and furthermore, averred that mode/scale of payment did not mean payment of N35,000,000=00. The defendant contended that in respect to the injury claim by the claimant, it is only the National Social Insurance Trust Fund (NSITF) a body that can calculate amount payable to any injured worker in the course of duty rather than the Claimant to do the calculation.

 It is worthy of note that the claim of the claimant for the injury sustained in the course of employment is predicated on alleged breach of duty of care by the defendant by which the injury sustained by the claimant was caused by the defendant’s machine at work place. The injury sustained by the claimant was stated as due to lack of safety measures required to protect the claimant from sustaining injuries. However, the position of the defendant regarding this contention is that the Claimant caused the injury for himself.

Let me state here that the position of the law is that in an employment relationship of this nature of master/servant at common law, the employer/master is enjoined by law to ensure all necessary safety measures are taken and safety equipment are provided to employee to enable protection of employee against any injury or hazard in the course of performance of his duties. Where the employer/master fails in its duty of making provisions for safety materials to employee, the employer/master will be liable to compensate the employee in an event of the employee suffering from any injury caused to him in the course of performing his duties.

In the case at hand, the claimant insisted on being entitled to reliefs being sought while the defendant is maintaining in its issue for determination that Whether the Defendant was negligent or caused the industrial accident upon which the Claimant sustained injury.

The claimant pleaded and deposed in his witness statement on oath that the defendant’s negligence has caused him injury, while  defendant  on its part, maintains otherwise.

Much about master/servant relationship at common law, an employee may sue his employer for compensation for injury at work either in torts or contract. See Afrab Chem Ltd. vs Owoduenyi (2018) LPELR (CA). It is apparent that the claimant’s claim in the case at hand is in contract but can still fit in tort. There is no dispute as shown from the above facts constituting this case that the claimant was the employee of the defendant at the material time and place of the accident leading to the injuries. In other words, the employer-employee relationship exists by virtue of the claimant’s employment with the defendant at the material time in issue. This connotes that the claimant is bound to take instruction from the defendant as this forms part of his duties in a contract of this nature that exists between him and the defendant. And in the absence of any express term; there is an inherent and implied duty correspondingly imposed on the employer to take reasonable care of the employee, in other words, to ensure the safety of employee in their unique master-servant relationship notwithstanding any term in the contract to the contrary. In such a situation, the Supreme Court decided in Iyere v. Bendel Feed & Floor Mill Ltd (2009) All FWLR pt453 p.1217, which remains instructive in considering the case at hand. The apex court while defining contract stated thus:

“A contract of employment connotes a contract of service or apprenticeship whether express or implied express or implied .… The general requirement of 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 circumstances of the case so as not to expose him to an unnecessary risk.”

It could be noted from the above decision that the duty of master is the same as that of employer’s common law duty of care in the law of negligence and the duty of an employer towards his servant is to take reasonable care for his servant’s safety in all the circumstances of the case. This clearly underscores that the employer in this case, (the defendant) has the duty of taking reasonable care of the claimant while in the service of the defendant. What may be important to consider is in the contractual obligations between the parties, the defendant owes the claimant that duty of care. It is the duty of the defendant to prove that it has trained the claimant and must ensure providing him the protective gadgets issued to him and because this is the defendant’s work environment, every action and instructions must be documented and the defendant must have ensured that the workers in the work place always use the correct protective gadgets. I am somehow at loss when the defendant argued that the issue of compensation of the claimant is the responsibility of the Nigeria Social Insurance Trust Fund (NSITF) The question is, has there been any record of compliance with the NSITF or has there been any report made by the defendant as employer to NSITF, The Employees’ Compensation Scheme (ECS) and the National Council for Occupational Safety and Health regarding this industrial accident? I find no factual or documentary established compliance by the defendant to these social compensatory institutions to be able to explore their services to alleviate or take over the defendant’s liability.

Having said so, it is apt to consider whether the claimant has by the evidence adduced proved entitlement to any of the reliefs being sought. This will be done by having regard to the given facts in this case, what this court is to determine is whether the claimant suffered injury and the injury arose out of the claimant’s employment with the defendant.

From the facts analysed before this court, it is not in doubt that the claimant was a worker with limited training who was instructed to work on the machine. The defendant has failed to show that the claimant was adequately trained on the high-risk machine and show that the claimant was given more personal protective equipment other than the jacket, boot and helmet that could have been extended to the injured hands in the course of working on the machine to show contrary facts to its pleadings. 

The severity of the injury on the cheek, jaw, and a paralysed right hand of the Claimant vividly suggests the unique machine malfunction or lack of safety mechanisms at the same time there was no safe work environment. The defendant did not show that there was also proper procedures for how the maitainance man should carry out the machine maintenance while working on the machine. The defendant’s post-accident medical care bills and surgery cannot in my humble view, absolve the defendant of pre-accident negligence.

As pointed out earlier, the duty of care may either be contractual or delictual in character and that the claimant is at liberty to sue either for breach of contract or for negligence. In the case at hand the claimant chose to sue under the duty of care in contract. The establishment of contractual relationship of master/servant under the common law between the claimant and defendant has satisfied the requirement of showing existence of duty of reasonable care. This means the defendant shall remain under an obligation to provide safety in workplace environment for safety of employees. See Wilson vs Tyneside Window Cleaning & Co. (1958) 2 QB 110 @ 116; (1958) 2 W.L.R. 900. Which case is of persuasive effect to this decision, but a guide.

Having regards to the evidence before the court I have no doubt in my mind that the injury sustained in the course of the claimant’s employment was due to lack of provision of safety measures and training which caused the claimant’s injury. I have carefully looked very closely at Exhibits C2 and the 7 sets of C3 and of course related same with Exhibits C1 before the court, it is clear that the claimant was subjected to the injuries in issue. Furthermore, Exhibits D1, D2, D3, D4 and D5 have buttressed the contention of the faulty nature of the machine that is said to have cause the claimant’s injury.

I have come to the said conclusion because in law, for claimant to succeed in his claim for injury sustained in the course of employment, he must establish that the defendant owed him duty of care and that duty of care was breached by the defendant resulting in damages from the breach. this, the claimant has succeeded upon, as employee of the defendant, the defendant owed the claimant duty of care to ensure safety tools are provided to the claimant in the course of his employment with the defendant. From the facts and evidence adduced in this suit, the claimant has shown a good case of sheer carelessness and breach of duty of care. The defendant in this case has failed to discharge the duty of care imposed on him by law as employer of the claimant. It can be stated clearly that the failure to provide safety tools that would have averted the injuries on the active hand of the claimant in the course of upholding the defendant’s instructions was responsible for the injury sustained by the claimant. See Olam (Nigeria) Ltd v Intercontinental Bank Ltd (2009) LPELR-8275CA; Koya v. UBA Ltd (1997)1 NWLR Pt. 481 p.41; Osigwe v. Unipetrol Ltd (2005) 5 NWLR Pt. 918 p.261; Makwe v. Nwukor (2001) 14 NWLR Pt. 733 p.356.

It is to be noted that the standard of employer’s duty towards his employee under the common law like in the case at hand, is to see that reasonable care is taken and the scope of that duty extends to the provision of safe fellows or servants, safe equipment, safe place of work and access to it and a safe system of work. The employer/master is liable in damages to his servant for the breach of that duty of care. In the instant case, the defendant was in breach of its duty to provide safety tools to the claimant for his use when performing duties incidental to his work. See Hanseatic Int’l Ltd. v. Usang (2002) NWLR Pt.784 p 376.

Upon a calm evaluation of the evidence, I find the Defendant’s defence unpersuasive for the sake of this case. The act of switching on heavy machinery while a colleague is performing maintenance on it is precisely the kind of foreseeable risk that a proper safety system is designed to prevent. The Defendant’s reliance on the defence of “accident” is misconceived. An event does not qualify as a mere accident in law if it results from a failure to institute a safe system of work. The lack of a Lockout-Tagout procedure or an effective communication protocol between the power point and the machine operator constitutes a clear breach of the Defendant’s duty to provide a safe system of work.

Furthermore, while the Defendant tendered photographs of safety signs (Exh. D1-D4), this does not, in itself, absolve them of liability. The provision of Personal Protective Equipment like boots and helmets, while commendable, is not a panacea for a fundamentally unsafe system. The absence of a functional First Aid Box, as alleged by the claimant and not convincingly rebutted by the defendant, which further fortifies the conclusion that the defendant was lax in its safety protocols.

I am therefore satisfied that the claimant has established, on a preponderance of evidence, that the defendant breached its duty of care owed to him.

From the foregoing for relief (i), I hereby order the defendant to pay the claimant the sum of N25,000,000 (Twenty Million Naira) as a result of the permanent injury sustained due to the services rendered by the claimant during the course of his employment. I am not convinced as contended by the defendant that the assessment and compensation would have been the responsibility of the National Social Insurance Trust Fund (NSITF) hence that institution is not a party and there is nothing before the court to get the NSITF involved in this case. I so hold. 

I shall now turn to relief (ii), which is a declaration that the Claimant is entitled to all salary arrears as owed by the defendant from December 2020 till determination of this suit at the rate of N32,000 per month.

In view of the foregoing, I must not forget to state that the Claimant having sought for a declaratory relief is charged with the burden of proving that he is entitled to the said relief because declaratory reliefs are not granted as a matter of course. At any rate, the claimant is obligated in law to show course for the grant of such relief, even if there arose no defence on the part of the defendant.

The court in this regard held in the case of MATANMI & ORS V. DADA & ANOR (2013) LPELR-19929(SC) that:

“I agree with the learned counsel, that the plaintiffs must establish their claim on the strength of their case. They cannot place any reliance on the weakness of the defence; if any. The burden of proof on the plaintiffs in establishing their declaratory relief to the satisfaction of the court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendant where the plaintiffs fail to establish their entitlement to the declaration sought by their own evidence. See: Nwokidu v. Okaru (2010) 3 NWLR (P. 1181) 362, Dantata v. Mohammed (2002) 7 NWLR (P. 664) 176; Ekundayo v. Beruwa (1965) 2 NWLR 211 and Dumiez Nig. Ltd. V. Nwakhoba (2008) 18 NWIL R (P.1119) 36l at 373" PER FABIYI, J.S.C

In similar terms, the Court of Appeal in P.D.P v. Abubakar (2007) 3 NWLR (PL. I022) 515 at 546 547 Paras. D - A (CA) held that:

“In civil cases, before a court can grant a declaratory relief sought by a plaintiff he must plead and lead evidence to entitle him to the declaration sought. An admission by the defendant will in no way relieve the plaintiff from the onus placed on him of proving his claim. The plaintiff has the binding duty to satisfy the court by evidence, and not through admission in the pleading of the defendant, that he is entitled to the declaration sought. The court has a discretion to grant a declaration or refuse same. The outcome will depend on how cogent and strong the claimant's case is. In other words, courts do not make a declaration of right on admissions. See Bello v. Eweka (1981) SC 101; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Lewis & Peat (N.R.I.) Ltd v. Akhimien (1976) 7 SC 157; Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254; Mortune v. Balonwu (2000) 5 NWLR (Pt. 655) 87: Nkwocha v. Ofurum (2002) 5 NWLR (Pt. 761) 506; Igbinovia v. U.B.T.H. (2000) 8 NWLR (Pt. 667) 53; Olohunde v. Adeyoju (2000) 10 NWLR (P. 676) 562: Kupoluyi v.  Philips (2001) 13 NWLR (Pt. 731) 736. Per. Adekeye JCA.

The Claimant’s evidence that his salary was reduced during hospitalization and eventually stopped after his discharge was not contradicted by any document from the defendant showing continuous payment or formal termination notice. I therefore find that the defendant constructively and unlawfully terminated the Claimant’s employment.

It is settled that special damages must be strictly proved. While the claimant has not produced pay slips or bank statements, the defendant did not controvert his evidence of monthly salary of ?32,000. Let me state that the burden of contradicting the claimant’s salary rests on the defendant and in the absence of which, I accept ?32,000 as his last known salary. This is because in labour dispute once an employee specifically claims unpaid benefits, the employer must prove payment. This reinforces the principle that employers are responsible for maintaining records and proving evidence of wage and benefit payments as this remains the practical realities of employment relationships. My view is that the personnel files, payrolls, remittances and other similar documents showing that rightful benefits have been paid to the employee are in the custody and absolute control of the employer.

In paragraph 11 and 12 of his statement of facts and paragraph 11 and 12 of his witness deposition which he adopted in chief, the claimant  contended that his monthly salary was N32,000.00.  Thus, the only evidence of the Claimant’s salary before the court is Exhibit C8. This will aid the case of the Claimant representing proof of his monthly salary for the purpose of calculating his entitlement. Exhibit C8 states the monthly salary of the Claimant as N32,000. There is evidence to the effect that Claimant’s salary was reduced from N32,000 to N16,000, which was only  paid for 21 months upon his hospitalisation before it was stopped. These facts were not contradicted by the defendant and the consequence of this is that they are admitted by the defendant. It is on this basis, I order that the claimant is entitled to payment of his accumulated amounts of the monthly balance of his N16,000 per each of the 21months period in the sum of N336,000 (Three Hundred and Thirty-Six Thousand Naira). This is predicated on the fact that the absence of the claimant or his failure to report to work was not deliberate or that it is unjustifiable and the relationship between the claimant and the defendant could not have been severed.

A Court can neither award more than what is sought nor can it award what is not claimed. This is elementary and requires no erudition on the part of the Court to discern. It is a general principle of law, as held by Amina Audi Wambai, JCA in Mrs. Rose Ifemesia v. Ecobank Nigeria Plc (2018) LPELR-46589(CA), citing Ekpeyong v. Nyong (1975) 2 SC 71, that a Court will not grant a party what was not claimed and neither the Court grants a party more than what is claimed since the Court is not a charitable organization. It is however open to a Court to award less what was claimed by a party. Accordingly, I hereby declare that the Claimant is entitled to all the salary arrears (subject to any lawful deductions) owed from December 2020 till the determination of this suit. However, with regards to Relief (iii) which is for an order of this Honourable Court directing the Defendant to pay the Claimant 25% interest on the outstanding of salary/allowances from 1st December, 2020 until the final payment is made.

The law is settled that where a party breaches a contractual obligation, the aggrieved party is entitled to remedies, including damages and interest. The court has discretionary power to award interest where a party has been deprived of the use of money rightfully due. The law is trite that before a party can claim pre-judgment interest, he has to provide the contract/agreement between the parties or under mercantile custom or under the principle of equity. See the case of Dantama v. Unity Bank (2015) LPELR-24448 (CA). He must plead not only his entitlement, but the basis of his entitlement either by statute. It is for the Claimant to prove his entitlement to the stated pre-judgment interest. This accords with the old principle that he who asserts must prove same. This, the Claimant has failed to do. Not having proved same, relief (iii) is refused and hereby dismissed.

Relief (iv) is an order of this Honourable Court directing the Defendant to pay the Claimant the sum of N1,376,000 (One Million Three Hundred and Seventy-Six Thousand Naira) only, being outstanding arrears of salary/allowances to the Claimant as full final payment from 1st December, 2020 till July 31st, 2024. It is the finding of this court that the Claimant remained in employment of the defendant in the absence of any termination of his employment after his injury. Accordingly, this court hereby directs the Defendant to pay the Claimant the sum of ?1,376,000 (One Million, Three Hundred and Seventy-Six Thousand Naira) being arrears of salary/allowances from 1st December 2020 to 31st July, 2024. I so hold.

Relief (v) is an order directing the Defendant to pay the Claimant the sum N30,000,000 (Thirty Million Naira) only, being a specific damage having been denied his enjoyment of his life like other human beings.

The claim for specific damages must be specifically pleaded and strictly proved. This, the Claimant failed to do as the claimant has not pleaded special damages and there being no documentary or factual evidence, this relief fails and is hereby dismissed.

Relief (vi) is for general damages in the sum of N30,000,000 (Thirty Million Naira) only for psychological trauma of having been deprived of his due salary/allowances for upward of three years.

General damages are awarded as compensation for losses that are not easily quantifiable in monetary terms. The Claimant has undoubtedly suffered immense pain and suffering, loss of amenities of life, permanent disability, and psychological trauma. He is now permanently incapacitated and unemployable in his chosen field. These are legitimate heads for general damages. Considering the profound and permanent nature of his injuries, an award of general damages is not only warranted but becomes necessary.

I hereby order that the Defendant pay to the Claimant the sum of N5,000,000.00 (Five Million Naira) only as general damages for  psychological trauma of having been deprived of his due salary/allowances for upward of three years.

Relief (vii) is for cost of N1,000,000 (One Million Naira) of this action.

The law is trite that claim of cost is at the discretion of the court. It is settled law that it is not every injury suffered by an employee during the period of employment that entitles the employee to damages or compensation. It is only the injury suffered out of and in the course of his employment that the employer will be liable. The phrase ‘out of and’ and in the course of the employment’’ are used conjunctively in the sense that the accident or injury must have occurred not only during the employment but must have occurred’ ‘’out of and in the course of the employment’. In any event the relationship of the parties is founded on contract and let me be guided by the decision of the Supreme Court in Mekwunye vs Emirate Airlines (2019) LPELR-46553 SC at pp.67-73, paras E where the Apex court held that cost is granted at the discretion of the court, once empowered by its rules. For this particular court, Order 55 Rules 1-5 of the NIC (Civil Procedure) Rules, 2017 provides for awarding cost. I am also very mindful of the decision reached by the Apex court in Ezennaka vs COP, Cross River State (2022) 18 NWLR pt1862 p.369 @ 420 paras D-F (SC) where it was emphasised that “A successful party in an action, unless misconducts himself is entitled to cost as of right. This position of law is premised on the principles that cost follows event and that a successful party in a litigation is entitled to be indemnified for all the reasonable expences incurred in the prosecution of the matter up to judgment” It is in this light that I award N500,000 (Five Hundred Thousand Naira) as cost of this action.

In the circumstances of this case and for the avoidance of doubt and for purpose of clarity, all the reliefs sought are granted except reliefs (iii) and (v) on the face of the processes filed by the claimant.

In view of the foregoing, the defendant is hereby ordered to pay to the claimant, the judgment sum and cost within 30 days from the date of this judgment, failing which the judgment sum shall attract 10% simple interest per annum.

 Judgment is accordingly, entered.

 

………………………………………………………….

HON. JUSTICE S.A. YELWA

(JUDGE)

 

LEGAL REPRESENTATION

Ismail .A. Afunso Esq. for the Claimant.

C.C. Amasike Esq. for the Defendant