IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

Date: Tuesday, 27th January 2026                         SUIT NO. NICN/LA/333/2021

BETWEEN

MOSES SUGHTEI KUNDE                                     …            CLAIMANT

AND                                           

AFRICAN NANOPLAST SERVICES LIMITED         …            DEFENDANT

JUDGMENT

1.       The Claimant commenced this suit on 7th September 2021. In the amended statement of facts filed on 27th June 2023, the Claimant sought the following reliefs:

2.       Upon receipt of the originating process, the Defendant entered an appearance and filed a statement of defence on 28th September 2021. Leave was granted to the Claimant to amend the originating process on 14th June 2023, and the amended process was filed on 27th June 2023. The trial commenced on 15th March 2023 and concluded on 11th October 2023. The Claimant testified in support of his claims, submitted three exhibits, and was cross-examined and re-examined. The suit was then adjourned to 8th May 2023 for the continuation of the trial. After several adjournments, on 11th October 2023, the Claimant's second witness, Oladipupo Olugbenga, a litigation officer at Messrs Jimmy Alara & Associates, adopted his statement on oath dated 27th June 2023, tendered two exhibits, and was cross-examined. Subsequently, the Defendant’s witness, Mr. Panle David, testified, submitted ten exhibits, and was cross-examined. The suit was then adjourned to adopt final written addresses. Both parties exchanged their final written addresses, which their counsel adopted. The matter was set down for judgment.

 Brief facts of the case

3.       The Claimant asserts that he was employed by the Defendant on 2nd February 2021, as a cutting machine operator, specifically to operate a machine known as the Talgen Automatic Cutting Machine. Before joining the Defendant, he had received training on this type of machine and had several years of experience working with the Talgen Automatic Cutting Machine. On the same day he assumed his duties, 2nd February 2021, the Claimant experienced an accident that resulted in the loss of three fingers. He attributes the accident to a trainee who may have activated the machine while standing by the start button. The Defendant is accused of failing to implement appropriate safety measures and of failing to provide a safe working environment. As a result of the trainee's negligent actions, the Claimant has endured significant pain, injury, and partial permanent disability. Consequently, he has initiated this suit. The Defendant denied liability, claiming that the Claimant's injury resulted from the Claimant's own negligence.

Summary of final written addresses

4.       The learned counsel for the Defendant raised two issues for determination in the final written address filed on 20th October 2023: 

5.       Counsel addressed the first issue, referencing paragraphs 8, 9, 10, 11, 12, and 23 of the amended statement of facts, which are reiterated in paragraphs 9, 10, 11, 12, 13, 14, and 22 of the sworn statement. Upon reviewing these paragraphs, counsel argued that the Claimant’s allegations against the trainee necessitate the trainee's involvement in the case. The trainee should have been joined as a necessary party to provide his side of the story. Counsel further contends that the Defendant cannot be held liable for the negligence of a co-worker who is not a party to the suit. Citing the authority of Green v. Green [1987] 3 NWLR (Pt 61) 481 and Okobiemen v. UBN Plc [2019] 4 NWLR (Pt 1662) 265 at 280, and other relevant cases, counsel explained that a necessary party is one whose presence is essential for the effectual and complete determination of the case. Therefore, the learned counsel argued that the core issue in this case cannot be resolved without hearing the trainee’s account of the events. Consequently, counsel concludes that the failure to join the trainee as a necessary party is detrimental to the case and warrants its dismissal.

6.       Counsel argued that the Employees' Compensation Act of 2010 is intended to compensate victims of industrial accidents regardless of how the accident occurred or who is responsible for it. To support this argument, counsel cited Sections 1(a) and 7(1) of the Employees’ Compensation Act. However, he noted that if an employee chooses to pursue a damages claim against the employer for injuries sustained while working, the claim does not succeed automatically. The burden of proof lies with the Claimant, who must demonstrate the validity of the claim satisfactorily, as outlined in Sections 131 and 132 of the Evidence Act, 2011 (as amended) [“the Evidence Act”]. Furthermore, counsel argued that the Claimant’s assertion about the activation of the machine's start button is presumptuous in light of the Defendant’s denial of that claim, referencing the case of Victor-Isonguyo v. State [2023] 3 NWLR (Pt 1872) 519 at 588. 

7.       Counsel further submitted that the Claimant's allegations of the Defendant's failure to provide a safe working environment and to follow necessary safety procedures lack specific details. The concept of negligence was explained, highlighting that proving negligence requires demonstrating a duty of care to the Claimant, a breach of that duty, and the resulting damage. Without establishing these elements, as in the current case, the claim will fail. Counsel cited the cases of UTB Nig. Ltd v. Ozoemena [2001] 7 NWLR (Pt 713) 718, Agi v. Access Bank Plc [2014] 9 NWLR (Pt 1411) 121, and Abubakar v. Joseph [2008] 13 NWLR (Pt 1104) 307 as supporting authority. Summarising the Claimant's evidence regarding the activation of the machine and its beeping nature, counsel argued that the injury resulted from the Claimant’s actions and that no safety measures could have prevented it. It was further contended that the Claimant did not prove that the Defendant failed to exercise reasonable care, especially since the Defendant had activated compensation under the Employees’ Compensation Act and covered the Claimant’s medical expenses. It was also pointed out that the Defendant’s evidence remains unchallenged due to the Claimant’s failure to file a reply to the statement of defence. As a result, the Court was urged to conclude that the Claimant has not established entitlement to the claimed reliefs.

8.       Arguing the second issue, counsel provided a summary of the facts regarding compliance with the Employees’ Compensation Act and a summary of the refund made by the Claimant to the NSITF Board. Counsel argued that since the Claimant agreed to a specific course of action, he cannot change his mind simply because he is dissatisfied; a party must remain consistent in his case. The cases of Mekwunye v. Imoukhuede [2019] 13 NWLR (Pt 1690) 439 at 507 and Ezenwo v. Festus [No. 1] [2020] 16 NWLR (Pt 1750) 324 at 339 were cited as support for this point. Counsel further submitted that the Claimant should have appealed to the Board, as provided in Section 55(1) of the Employees’ Compensation Act, rather than making a refund. It was also noted that the Claimant is barred from withdrawing from the NSITF scheme, as he lost the right of action upon submitting the NSITF forms. Referencing Section 12(1) and (2) of the Employees’ Compensation Act, counsel reiterated that the Claimant forfeited the right of action against the Defendant when the Defendant initiated compensation under the Employees’ Compensation Act, which disqualified the Claimant from seeking damages. Counsel defined damages according to the Black’s Law Dictionary, Seventh Edition, page 393. Therefore, counsel submitted that the Claimant has not established his entitlement to damages, and the suit should be dismissed. The Court was urged to hold so.

9.       The learned counsel for the Claimant also nominated two issues for determination in the final written address filed on 25th January 2024:  

10.     On the first issue, counsel argued that the Claimant’s testimony, being that of an eyewitness, is more credible than the testimony of the Defendant’s witness, who did not witness the event. Counsel contends that the evidence from the Defendant’s witness should not be relied upon and cites the unreported case of Babatunde Ajala v. Rite Pak Company Ltd, Suit No. NICN/LA/432/2013, with judgment delivered by Kanyip, J. Referring to paragraphs 7, 8, 9, 10, 11, 12, 13, 22, 23, and 24 of the amended statement of facts, counsel submitted that the Claimant has established a case of negligence. Relying on the case of DHL International Nigeria Ltd v. Obiageli Eze-Uzoamaka [2020] 16 NWLR (Pt 1751) 445 at 455, counsel outlined the preconditions for a negligence claim, which include: that the Defendant owed a duty of care to the Claimant, which was breached, resulting in injury. 

11.     On the duty of care, counsel argued that the Defendant had a responsibility to train the Claimant in the operation of the machine but failed to do so before assigning him to operate it, citing Section 23 of the Factories Act and the case of Babatunde Ajala v. Rite Pak Company Ltd [supra]. Regarding the breach of duty of care, counsel asserts that the Defendant breached this duty by failing to provide a safe working environment, failing to train the Claimant, and failing to place him under the supervision of someone with thorough knowledge of the machine. Counsel highlights that the defence witness, during cross-examination, confirmed that the machine was not properly maintained, referencing Kabo Air Limited v. Ismail Mohammed [2015] 5 NWLR (Pt 1451) 38 at 44. On the issue of injury, counsel referred to Section 12 of the Labour Act and the case of Conoil Plc & Anor v. Ene-Obong Solomon [2017] 3 NWLR (Pt 1551) 50, asserting that the Defendant is vicariously liable for the actions of the trainee, which resulted in injury to the Claimant. Counsel noted that it was established that the accident was caused by the trainee, an employee of the Defendant, while performing his duties. Counsel also explained the principle of res ipsa loquitur and argued that this principle is evident from the Claimant’s pleadings and evidence. Additionally, counsel cited DHL International Ltd v. Obiageli Eze-Uzoamaka [supra] and Ighererinowo v. SCC [Nig] Ltd & Ors [2013] 10 NWLR (Pt 1361) 138 as a basis for the award of damages, urging the Court to rule in favour of the Claimant. 

12.     In response to the Defendant’s argument regarding the issue of the Employees’ Compensation Act, counsel contends that the Defendant's team made the submission of certain forms a condition precedent for an out-of-Court settlement. He argued that the Claimant’s claim is based on the tort of negligence rather than the Employees’ Compensation Act, noting that the requirement to fill out these forms arose only during attempts to resolve the matter amicably. When the parties could not reach an agreement, the trial continued. Counsel referred to the unchallenged letter dated 14th March 2023, and asserted that, according to Section 169 of the Evidence Act, the Defendant is estopped from claiming that the Claimant’s suit falls under the Employees’ Compensation Act. Addressing the Defendant’s argument regarding the non-joinder of the trainee, counsel argued that the trainee is not a necessary party. Under Section 12 of the Labour Act, the Defendant is vicariously liable for the actions of the trainee, who is an employee of the Defendant and was acting within the scope of his duties when the incident occurred. The case of A.C.B. Plc v. Nwigwe [2001] 1 NWLR (Pt 694) 305 at 306, and Section 12 of the Labour Act, were cited in support of this position. Regarding the claim that the documents tendered by the defence were not challenged, counsel stated that these documents are irrelevant to the resolution of the Claimant's claim. Counsel suggested that even if the Defendant had filled out and submitted the forms unconditionally, the compensation forms ECS CCFO2 allow for third-party compensation. He reproduced Column 10.1 and questioned whether the employee had received any third-party compensation or expected to receive any. Furthermore, counsel referenced the letter dated 22nd June 2021, with reference number NSITF/IKD/C&C/Vol1, asserting that the Defendant did not fulfil the condition precedent for compensation, rendering the forms void. The case of Babatunde Ajala v. Rite Pak Company Ltd was cited to support this argument.

          Preliminary issues

          Is the trainee a necessary party?

13.     The Defendant argued that the trainee cited in the Claimant’s pleadings is a necessary party who should be joined to explain his role in the accident. The Defendant claimed that failing to join him is fatal to the case and could result in the suit's dismissal. In response, the Claimant contended that the trainee is not a necessary party because the employer is vicariously liable, citing Section 12 of the Labour Act. 

14.     The concept of vicarious liability refers to the legal responsibility imposed on one individual for the actions of another, based solely on the relationship between the two parties. It is an imputed liability for the conduct of someone else. Established legal precedent holds that the burden of proof lies with the party asserting vicarious liability, who must present and demonstrate the facts supporting the claim. Vicarious liability cannot be applied without evidence of a master-servant relationship. The application of this doctrine must be founded on concrete facts rather than assumptions or subjective judgment. Relevant case law includes Total Exploration & Production Nigeria Ltd v. Okwu & Ors [2024] 17 NWLR (Pt 1967) 379 at 453-454, Ifeanyi Chukwu [Osondu] Co. Ltd v. Soleh Boneh [Nig.] Ltd [2000] 5 NWLR (Pt 656) 322 at 358, Salawu v. Lawal [2012] LPELR-9759(CA), Shell Petroleum Development Company Nigeria Ltd v. Addico & Anor [2015] LPELR 25785(CA), and Adah v. First City Monument Bank Plc [2018] LPELR 45180(CA).

15. The Court of Appeal held, in some cases, that, in an action for negligence, if the principal actor is not joined as a party and his liability established, there can be no question of finding the master liable vicariously. In other words, if the servant is not joined in the action, the action is incompetent ab initio, and a trial Court should not waste its time considering the merits of the case. Please refer to the cases of Ifeanyi Chukwu [Osondu] Co. Ltd v. Soleh Boneh [Nig.] Ltd [1993] 3 NWLR (Pt 280) 246 at 251-252, Obi v. Biwater Shellabear [Nig.] Ltd & Anor [1997] 1 NWLR (Pt 484) 722 at 737 and Iyere v. Bendel Feed and Flour Mill Ltd [2001] 7 NWLR (Pt 711) 76 at 86-87. 

16.     However, the Supreme Court laid the controversy to rest in Ifeanyi Chukwu [Osondu] Co. Ltd v. Soleh Boneh [Nig.] Ltd [supra]. The Court held that the servant need not be joined as a party to the suit before his liability can be established. Onu, JSC, who read the leading judgment, held at pages 359-360, that “From the legal proposition spun out hereinbefore in the two extracts in the leading and concurring judgments (supra) set out above, what has emerged is that unless the liability of the principal actor or tortfeasor i.e. that of Mosudi Akanbi, unless established, the joinder of his master i.e. the respondent in this action would be of no avail. But one may ask, is this the true statement of the law in Nigeria? As I said earlier in this judgment. I think not.” Iguh, JSC, in his contributing judgment, held “The Court of Appeal in coming to its erroneous decision reasoned that the liability of the driver can only be established if he is made a party to the action and that where, as in the present case, the driver is not joined in the suit, no liability may be ascribed to him thus rendering the action incompetent. Again, with profound respect, I cannot accept this proposition of law as well-founded. It is plain to me that the question of the liability of the servant is purely an evidential issue which can easily be established by cogent and acceptable evidence before the court, and it would make no difference whether or not the driver of the offending vehicle is joined in the suit.” 

17.     The Court noted that, “It is trite law that allegation of the precise breach of the duty owed must be made in the pleading, in other words, particulars, must always be given in the pleading showing precisely in what respect, the defendant was negligent…”. Ideally, the pleading should specify that the company is being held vicariously liable for the actions of its named servant. The conditions that the party relying on the employer's vicarious liability must satisfy are: that the servant was negligent; that he was the servant of the master; and that he acted in the course of his duty. Please refer to Ifeanyi Chukwu [Osondu] Co. Ltd v. Soleh Boneh [Nig.] Ltd [supra], pages 360-361. When an employee performs duties related to his job and, in doing so, acts negligently, the employer is liable, even if the actions taken are contrary to the specific instructions given to the employee. Please see Techno Mechanical [Nigeria] Limited v. Ogunbayo [2000] 1 NWLR (Pt 639) 150 at 168. The Defendant argued that the trainee should have been joined to present his perspective on the events. However, the trainee could also have been called as a witness to provide testimony, so it is not necessary to make him a party to the case. Additionally, Order 13 Rule 14[1] of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 provides that no proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interests of the parties actually before the Court. Therefore, I hold that the trainee is not a necessary party, and his non-joinder is not fatal to the Claimant’s action. 

          Is the Defendant’s witness’s evidence credible?

18.     The Claimant urged the Court to discountenance the evidence of the defence witness because he was not present when the accident took place. The Defendant did not respond to this argument, and it is deemed to concede the issue, as stated in Sakati v. Bako & Anor [2015] 14 NWLR (Pt 1480) 531 at 563. Typically, witnesses are expected to provide firsthand evidence regarding the subject of their testimony. When a witness testifies about what someone else told him, it constitutes hearsay, which is inadmissible. By Sections 37, 38, and 126 of the Evidence Act, hearsay evidence can only be used to inform the Court about what a witness heard from another and not to establish the truth of what was said. Furthermore, since a company is a juristic person, it can only act through its agents or employees, meaning any agent or employee can provide evidence to support any transaction entered into by the company. If the official providing testimony did not participate in the transaction on behalf of the company, his evidence is still relevant and admissible and will not be dismissed as hearsay. However, the fact that the official did not personally partake in the transaction may affect the weight given to the evidence in appropriate cases, as established in Impact Solutions Limited & Anor v. International Breweries Plc [2018] 16 NWLR (Pt 1645) 377 at 400, 401; Ishola v. Societe Generale Bank [Nig.] Limited [1997] 2 NWLR (Pt 488) 405 at 424; Saleh v. Bank of the North Ltd [2006] 6 NWLR (Pt 976) 316 at 326-327; and Interdrill Nigeria Ltd & Anor v. United Bank for Africa Plc [2017] 13 NWLR (Pt 1581) 52 at 67, 69. 

19.     I have considered the sworn statement of the Defendant’s witness. The witness stated that he is the Defendant’s General Supervisor and Head of Production, and is familiar with the facts of this case. The witness also stated that the information in his sworn statement is based on his personal knowledge, information, and belief. However, during cross-examination, the witness testified that he was not present at the time of the accident. When told that the trainee was the only eyewitness to the accident, the witness replied, “Not correct.” Asked whether there were other eyewitnesses, he responded, “Possibly, yes, because we have many machines”. Clearly, the Defendant’s witness is not an eyewitness. However, this fact alone does not render him incredible or make his entire evidence hearsay. The fact that he is not an eyewitness will only affect the probative value of his testimony, especially as to the cause of the accident. In this circumstance, I hold that the evidence of the Defendant’s witness is relevant, admissible, and not hearsay. The Claimant’s objection is hereby overruled.

          Issue for determination

20.     The issues nominated by both parties are similar. Therefore, the issue for determination in this case is whether the Claimant is entitled to a judgment in his favour. 

21.     The law is trite that whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. By the combined force of Sections 131, 132, 133, 134, and 136[1] of the Evidence Act, the Claimant bears the initial burden of proving the pleaded facts on the balance of probabilities.  The Claimant must succeed on the strength of his case, not on the weakness of the defence, absence of defence, or admission by the Defendant. If the Claimant fails to discharge this burden satisfactorily, his claims will be dismissed without considering the Defendant's case, as the Defendant is not required to prove its defence under these circumstances. In such a situation, there would be no evidence to rebut, leading to a judgment against the Claimant for lack of evidence. Please refer to Adama & Ors v. Kogi State House of Assembly & Ors [2019] 16 NWLR (Pt 1699) 501 at 531, Igwenagu v. Hon. Minister, Federal Capital Territory & Ors [2025] 7 NWLR (Pt 1988) 145 at 173-174, Nsude & Ors v. Nichodemus & Ors [2025] 4 NWLR (Pt 1982) 253 at 280, and Nduul v. Wayo & Ors [2018] LPELR-45151[SC] 51-53.

22. This action is founded on negligence, which is the omission to do something that a reasonable man guided by those considerations that ordinarily regulate the conduct of human affairs would do, or doing something that a prudent and reasonable man would not do. Negligence is a question of fact, not law, and each case will be decided in the light of its facts. The onus is on the Claimant to sufficiently plead and prove that the Defendant owed him a duty of care, and breached that duty, which resulted in the damage he suffered. Please refer to Jwan v. Ecobank Nigeria Plc & Anor [2020] LPELR-55243[CA] 32 – 34, Access Bank Plc v. Mann [2021] 13 NWLR [Pt 1792] 160 at 177, and Universal Trust Bank of Nigeria v. Ozoemena [2007] 1 SC [Pt II] 211 at 220-221. Proof of negligence may be direct, and it may be inferred from the circumstances of the case. Please, see Anyah v. Imo Concorde Hotels Limited & Ors [2002] 12 SC [Pt II] 77 at 85. The fact of injury alone without more does not entitle the Claimant to compensation, as noted in Umera v. Nigerian Railway Corporation [2022] 10 NWLR (Pt 1838) 349 at 387. An employer's liability at common law is the general duty imposed on all persons to take reasonable care to avoid causing injury to their neighbours, including providing a safe and conducive workplace free of hazards. As noted in this judgment, the Defendant is sued for the negligence of its employee, the trainee. Therefore, the Claimant is required to demonstrate that the trainee was negligent; he was an employee of the Defendant; and he acted in the course of his duty, as illustrated in Ifeanyi Chukwu [Osondu] Co. Ltd v. Soleh Boneh [Nig.] Ltd [supra].  

           Summary of evidence

23.     The Claimant sought two reliefs, testified, and called an additional witness, Mr. Oladipupo Olugbenga. The Claimant tendered five exhibits marked Exhibits 1-5. These are: the Claimant’s solicitors’ letter dated 14th April 2021, the Defendant’s solicitors’ letter dated 20th April 2021, pictures of the Claimant’s injury with a certificate of authentication, the Claimant’s solicitors’ letter to the NSITF dated 14th March 2023, and a copy of the Manager’s cheque for N83,000 bearing the same date.

24.    The Claimant's evidence indicates that he was employed by the Defendant as a Cutting Machine Operator on 2nd February 2021, and was assigned to operate a Talgen Automatic Cutting Machine. Upon beginning his employment on that date, he was scheduled to work night duty, starting at 7:00 p.m., at the Defendant's factory, operating the Talgen Automatic Cutting Machine. Before his employment with the Defendant, the Claimant received training and worked on the Talgen Automatic Cutting Machine at Plaska Nigeria Limited for one year. He also worked at Godswill Nigerian Limited for 5 months, operating both automatic and manual nylon-cutting machines. On the day of the incident, he was assigned a trainee to assist him while operating the machine. After working for three hours, from 7 p.m. to 10 p.m., the machine stopped functioning. He discovered that a piece of nylon had blocked the machine's sensor. After removing the blockage, he attempted to pass down the knife when the machine unexpectedly restarted, resulting in the loss of three of his fingers.

25.     The Claimant explained that the trainee was standing near the start button when the machine was turned on, and that the machine would not ordinarily restart unless the start button was activated. There are two start buttons: one located next to the operator and the other next to the trainee. He noted that a conveyor button near the start button is used to convey the produced nylon toward the trainee for packaging. The start button emits a sound when activated. Although he heard a sound that night, the machine's knife had already chopped off his fingers before he could react and remove his hands. He insisted that the trainee was at the start button when he heard the machine activate. He further stated that the start button could not have been activated by itself, either manually or automatically, without external intervention, and that his accident was caused by the machine's sudden activation. 

26.     The Claimant reported that he was alone with the trainee at the production site when the accident occurred. He maintained that his injury was directly caused by the unexpected activation of the Talgen Automatic Cutting Machine, resulting in the loss of three fingers. The injury led to a permanent partial disability. He experienced immense pain, was treated for that pain, but was informed that no treatment could restore his fingers. Upon discharge from the hospital, he reported to the Defendant, who callously asked him to return to work despite his partial permanent disability. The Claimant has endured significant physical and psychological pain and is now unable to work due to his injury. At just 24 years old, he has lost over 36 years of potential active work life. He asserts that due to the negligent actions of the Defendant’s trainee and their refusal to provide rehabilitation, he has suffered pain, injury, and a partial permanent disability.

27.     During cross-examination, the Claimant explained that when the machine is powered on, it takes a moment before it starts generating. He confirmed that the machine stops when its sensor is blocked. Even after the blockage is cleared, the machine does not resume operation. He affirmed that on the day of the incident, the sensor was indeed blocked, causing the machine to stop. He was the one who removed the object obstructing the sensor. The incident occurred on his first day at work. He was taken to the hospital for treatment, remained there for five days, and continued to report to the hospital for dressing of his wound. He denied any claims that he intentionally stopped visiting the hospital, stating that he was always receiving treatment. He admitted to being granted two months of leave from duty to recuperate and received his salary during that period. He also denied refusing to come forward to collect his April salary, stating that he was not contacted about it. Before this period, he was asked to return to work following his bed rest, but he declined. He mentioned that an Indian man had told him to leave if he was unwilling to return. He denied being informed that he could choose any department to work in, claiming that his friend actually told him. When shown the NSITF statutory forms, he acknowledged having signed a document similar to them. Copies of Forms ECSMR01, ECS.CCF02, ECS.CCF03 and ECS.CCF04 were admitted in evidence and marked as Exhibit D1. Upon reviewing Forms ECS.CCF02 and ECS.CCF03, the Claimant confirmed that he signed in the specified columns. He denied that the NSITF had been depositing money into his account as a result of signing these documents, but stated that he did receive money in his account without knowing the source. However, he affirmed that he refunded the money sent to him by the NSITF. Upon re-examination, he confirmed that the payment made into his account was labelled "Nigeria S.O."

28.     The Claimant’s second witness, Mr. Oladipupo Olugbenga, who is also the litigation officer at his solicitor's law firm, testified that he served a letter (reference no. OC/JA/MK/2023) dated 14th March 2023, along with a Guaranty Trust Bank Plc Manager’s cheque No. 00015721 for N83,000.00, also dated 14th March 2023. This was addressed to the Managing Director of the Nigeria Social Insurance Trust Fund at their Lagos Regional Office, located at No. 12 Mobolaji Bank Anthony Way, Ikeja, Lagos State. Mr. Olugbenga delivered these documents at 8:45 a.m. The acknowledged copies of the letter and cheque were received in evidence and marked as Exhibits 4 and 5. During cross-examination, Mr. Olugbenga stated that he did not attend any meetings with the NSITF or the Defendant and therefore did not know what occurred at those meetings.

29.     The Defendant's witness, Mr. Panle David, who serves as the General Supervisor and Head of Production, testified that he began his employment with the Defendant as an engineer in 2019. As a result, he is familiar with the operations and mechanics of the tools and machines at his workplace. He stated that on the night of 2nd February 2021, when the accident occurred, he was among the first individuals to see the Claimant after the incident and was one of the people who took him to Dasochris Hospital, located at 3rd Avenue, Poboyejo Estate, Off Odon-Nla Road, Odongunyan, Ikorodu, Lagos. Mr. David explained that when the start button on the Talgen Automatic Cutting Machine is activated, it beeps before beginning operation. Consequently, he cannot understand how the Claimant managed to put his hand inside the machine. He acknowledged that the Defendant received a letter dated 14th April 2021, from the Claimant's solicitor, demanding a sum of N10,000,000.00 (ten million naira). The Defendant's solicitor responded to this letter on 20th April 2021. Mr. David also testified that the Claimant was employed by the Defendant based on the Claimant’s representation of having prior experience operating the machine, which he claimed to have done for several years before his employment. Mr. David stated that the Claimant resumed work at 7.00 p.m. on 2nd February 2021, after successfully completing an interview. During the interview, the Claimant indicated that he had operated the machine for several years, leading to the decision that he would be allowed to operate it.

30.     After operating the machine for three hours, the Claimant reportedly dipped his hand inside, resulting in the amputation of three fingers. Following the incident, he received a phone call about the accident. The Claimant was immediately taken to Dasochris Hospital, the Defendant's retained hospital, which is approximately 1 kilometre from the Defendant's factory. He was admitted and received extensive treatment on 2nd February 2021, coincidentally his first day on the job. Upon his discharge from the hospital on 6th February 2021, the Claimant was granted two months' leave to recover at the Defendant's expense. During this time, he was required to report daily to the hospital for wound dressing and continued to receive his salary and other entitlements while on leave. Although he collected his salary and benefits in person at the accounts department, he refused to sign the documents required by the Nigeria Social Insurance Trust Fund [NSITF] to process his compensation. Mr. David noted that the Claimant ceased responding to phone calls from the Defendant’s staff, including himself, and stopped attending the hospital visits for his treatment. On 5th April 2021, the Defendant submitted an application to the NSITF using the Claimant's details and attached the statutory Form ECS.CCF1, containing the particulars of the incident. This application was received by the NSITF on 6th April 2021. Upon initiating the compensation process for the Claimant, the Defendant printed and completed the required statutory forms, which included ECS.MR01, ECS.CCF02, ECS.CCF03 and ECS.CCF04. However, the Claimant failed to complete his portion of Forms ECS.CCF02 and ECS.CCF03, despite several requests for him to do so, even up to the present date. After the Claimant refused to come forward to sign the documents, the Defendant sent all the necessary paperwork to the NSITF by letter dated 20th May 2021. However, the NSITF, in a letter dated 2nd June 2021, referenced No. NSITF/IKD/C&C/VOL.1 returned the documents to the Defendant because the Claimant had not completed his sections of Forms ECS.CCF02 and ECS.CCF03. 

31.     The Defendant noted that the Claimant refused to go to the office to collect his salary for April 2021, despite repeated requests. It became evident that the Claimant was pursuing frivolous legal action against the Defendant, having been ill-advised. The Defendant stated that their attempts to secure adequate compensation for the Claimant through the NSITF, a statutory body responsible for such compensation, were frustrated by the Claimant's refusal to sign the necessary forms. The Defendant denied directing the Claimant to resume work upon his discharge from the hospital. Instead, they granted him a two-month leave of absence to allow for proper recuperation and covered the Claimant's medical expenses of over N200,000.00 (two hundred thousand naira) at Dasochris Hospital. Moreover, the Defendant maintained that the Claimant was negligent in his operation of the machine, and the injury occurred due to his own actions. The Claimant had been assigned an assistant, as per the Defendant's practice, but the assistant informed Mr. David that he did not activate the machine on 2nd February 2021, as it was not his responsibility. The Defendant asserts that the Claimant misrepresented and suppressed material facts in an attempt to gain an undue advantage in Court. The Claimant's refusal to sign the necessary forms stalled his compensation claim through the NSITF, leaving the documents filed on his behalf by the Defendant pending. Despite the Defendant's direction for the Claimant to continue employment in a department suitable to his condition after recuperation and once he received due compensation from the NSITF, thereby ensuring his means of livelihood, the Claimant rejected this offer. Mr. David asserts that the claims made by the Claimant are misconceived, frivolous, vexatious, and a grossly incompetent attempt to seek damages, and requests that these claims be dismissed with substantial costs. The Defendant tendered an additional 9 documents, marked as Exhibits D2-D10, Exhibit D1 having been tendered through the Claimant. These are: a breakdown of the Claimant’s medical bill, receipt dated 6th February 2021, medical report dated 10th February 2021, excuse duty certificate, discharge certificate, the Claimant’s payslips for February and March 2021 and cash payment vouchers dated 1st March 2021 and 31st March 2021, the Defendant’s letters to the NSITF dated 5nd April 2021 and 20th May 2021, and the NSITF letter to the Defendant dated 2nd June 2021. 

32.     During cross-examination, Mr. David acknowledged the Claimant's employment and confirmed that he operated the machine on the same day he was hired because he was employed as an operator. He was uncertain whether the machine was classified as heavy-duty. When asked if the Claimant received training before operating the machine, he stated that the Claimant was employed as an operator, taken around the factory, and shown the machine. When asked which machines he could operate, the Claimant pointed to this one. Pressed further whether the Claimant was trained, Mr. David said the Claimant received training on how to turn the machine on and off, along with instructions on where it was safe to place his hands. However, he did not provide any certification to prove that he was trained. The company assigned a supervisor to oversee him as a new employee while he was operating the machine. Although he was working under supervision at the time of the accident, the sworn statement did not indicate that he had received training or was operating the machine under supervision. When shown paragraphs 9(a) and 9(b) of his sworn statement, he noted that it was not mentioned that the Claimant was assigned to operate the machine with supervision. The company performs maintenance on its machines every Sunday, but this is not mentioned in the sworn statement. Maintenance is performed by an in-house technician, and there is no documentation verifying that the machine was serviced. He was not present when the accident occurred, which took place about 10 p.m. on the day of the Claimant’s engagement. At that time, the Defendant had not issued the Claimant a letter of employment. It was only after the accident that the Defendant began making contributions to the NSITF. Exhibits D1, D2, D7, D8, and D9 were all issued after the accident, and payments were made thereafter. On the day of the accident, a trainee was assisting the Claimant, but Mr. David denied that the trainee was the sole eyewitness to the incident. He stated that there may have been other eyewitnesses present because the facility had many machines. Mr. David denied having worked at God's Will Nigeria Ltd before his employment by the Defendant, but confirmed that he worked at Plaska. He noted that he met the Claimant at Plaska in 2018, when the Claimant was a trainee under him, although they were not operating the same machine.

          Evaluation of evidence

33.     I have reviewed the oral and documentary evidence presented by both parties. The Claimant is seeking damages and costs due to an injury sustained in an accident at the Defendant’s factory on 2nd February 2021. Both parties agree that the Claimant was employed by the Defendant on 2nd February 2021 and that the accident occurred on his first day of work. It is also undisputed that the Claimant informed the Defendant that he had been trained and had previous experience operating a Talgen Automatic Cutting Machine at Paska Nigeria Ltd and Gods Will Nigeria Ltd. Based on this representation, the Defendant employed him as an operator and assigned him to operate its Talgen Automatic Cutting Machine on 2nd February 2021. The Claimant's counsel argued on pages 8 and 9 of the final written address that the Defendant had a legal duty to provide training or supervision by a knowledgeable person. However, this issue did not arise from the pleadings or admissible evidence. It came up only during the cross-examination of the defence witness and in the Claimant's final written address. It is well-established law that evidence based on unpleaded facts, even if it arises during cross-examination, goes to no issue and should be disregarded. [See Presidential Implementation Committee on Federal Government Landed Properties v. Aywila & Anor [2017] LPELR-43204(CA) 32]. Similarly, a counsel’s address that is not based on the issues joined between the parties and the evidence presented is irrelevant and should be disregarded. [See Maranatha Consultants Limited & Anor v. Dirisu [2019] LPELR-47745(CA) 19]. There is also undisputed evidence that the Defendant assigned a trainee to assist the Claimant. At the time of the accident, the Claimant and the trainee were the only individuals present. Based on the pleadings and evidence, the Claimant's case revolves around vicarious liability and res ipsa loquitur. The Claimant asserts that the trainee's negligence led to the accident. The crucial question is whether the accident was caused by the trainee's negligence, rendering the Defendant liable.

34.     As I stated in this judgment, negligence is a question of fact, not law, and each case will be decided in the light of its facts. The onus is on the Claimant to sufficiently plead and prove that the Defendant owed him a duty of care, and breached that duty, which resulted in the damage he suffered, as illustrated in Jwan v. Ecobank Nigeria Plc & Anor [supra] and Access Bank Plc v. Mann [supra]. As also stated, proof of negligence may be direct, and it may be inferred from the circumstances of the case, as stated in Anyah v. Imo Concorde Hotels Limited & Ors [supra]. 

35.     Both parties agree that the Claimant was the Defendant’s employee and that the accident occurred on his first day of work. It is axiomatic that the Defendant, as the Claimant’s employer, owed him a duty of care, which is both statutory, under Section 47 of the Factories Act, and at common law.  In Adetona v. Edet & Ors [2004] 16 NWLR (Pt 899) 338 at 363, the Court of Appeal held that an employer's liability at common law is the general duty imposed on all persons which is to take reasonable care to avoid injuring their neighbours. 

36.     The next question is whether the Defendant breached this duty. The Claimant’s evidence is contained in paragraphs 7 to 12 of the statement of facts reiterated in paragraphs 8 to 15 of his sworn statement, to the effect that he operated the machine for about three hours, from 7.00 p.m. to 10.00 p.m., when it suddenly stopped working. Upon investigation, he discovered that a piece of nylon had blocked the machine's sensor. He immediately removed the obstruction and attempted to pass the knife down. However, at that moment, the machine unexpectedly resumed operation and chopped off three of his fingers. At the time of the incident, the trainee was standing by the start button. Normally, when the machine stops, it cannot be restarted unless the start button is activated. That is, the machine can only be turned on by pressing the start button, and the trainee was positioned next to it when the machine powered back on. There are two start buttons: one located beside the operator and the other beside the trainee. Additionally, there is a conveyor button next to the start button, which, when activated, would typically direct the produced nylon toward the trainee for packaging. When the start button is pressed, it emits a sound. On that fateful night, he heard that sound. However, before he could withdraw his hand, the knife from the machine severed three of his fingers. The Claimant reiterated that the start button cannot be activated on its own, either manually or automatically, without external intervention. The accident was caused by the machine's sudden activation. At the time of the accident, only the trainee and he were present at the production site. Therefore, the injuries he suffered were a direct result of the unexpected activation of the Talgen Automatic Cutting Machine, which led to the amputation of his three fingers. 

37.     In rebuttal, the Defendant averred in paragraph 17 of the statement of defence reproduced in paragraph 18 of the Defendant’s witness sworn statement that the injury was caused as a result of the Claimant’s negligence. Although the Claimant did not file a reply to the statement of defence, it is the law that the Claimant is not required to file a reply to a statement of defence if he simply wishes to deny the allegations made in the defence. In that case, if no reply is filed, there is an implied joinder of issue on the defence, as stated in Olubodun & Ors v. Lawal & Anor [2008] 17 NWLR (Pt 1115) 1 at 41. Therefore, I hold that the Claimant's failure to file a reply to the statement of defence does not imply an admission of paragraph 17 of the statement of defence. 

38.     Parties agree that when the start button of the Talgen Automatic Cutting Machine is activated, it produces a sound. See paragraph 12 of the Claimant’s sworn statement and paragraph 5 of the Defendant’s witness’s sworn statement. The Claimant testified that on that fateful night, he heard the sound of the machine being activated, but before he could remove his hand, his fingers had been chopped off. See paragraph 12 of his sworn statement. Under cross-examination, the Claimant admitted that when the machine is on, it gives a sound for about 30 seconds. The Claimant also testified that he was operating the machine with a trainee who was standing by the start button, and that when the machine goes off, it does not come on again unless the start button is activated. The Claimant further stated that the trainee was by the start button when he heard the machine being activated, and that the machine could not have activated itself, except by external intervention, and the accident was caused by the sudden activation of the machine. See paragraphs 9, 10, and 13 of the Claimant’s sworn statement. The inference from the Claimant’s evidence is that the trainee activated the machine without considering that he was still unclogging the machine, which action caused the accident. 

39.     The Defendant admitted that it is customary to assign an assistant to an operator, as in the Claimant’s case, thus corroborating that the Claimant worked with an assistant on that fateful night. See paragraph 19 of the Defendant’s witness sworn statement. However, the Defendant’s witness further stated that the assistant informed him, and he verily believed him, that he did not activate the machine on that fateful night because it was not his duty to do so. See paragraph 19 of the Defendant’s witness’s sworn statement. In paragraph 9[c] of his sworn statement, the Defendant’s witness testified that the Claimant operated the machine for about three hours when he received a call that the Claimant had been injured. During cross-examination, the defence witness admitted he was not present at the time of the accident. Clearly, the Defendant’s witness is not an eyewitness, and his evidence in paragraphs 18 and 19 of his sworn statement constitutes hearsay evidence under Section 37 of the Evidence Act insofar as it tends to prove the cause of the accident. It is noteworthy that the trainee, an employee of the Defendant who witnessed the accident, was not called to testify, and no explanation was given for the failure to call him as a witness. While the Defendant is at liberty to call any witness of its choice, the failure to call the trainee who is a vital witness is injurious to the defence. 

40. In Maneke v. Maneke & Ors [2020] 13 NWLR (Pt 1741) 311 at 330, the Court of Appeal, per Pemu, JCA, had this to say, “A vital witness whose evidence may determine the case one way or the other is indispensable, and failure to call such a witness spells doom for the party’s case. A witness who knows something significant about a matter is a vital witness. It is elementary law that parties are not bound to call witnesses or a host of witnesses. But where a party fails or neglects to call a vital witness, the same will be prejudicial to his case.” This leads to the inference that the Defendant refused to produce the trainee because, if he had been produced, his evidence would have been unfavourable to the Defendant. Please refer to Igbe v. Eleki [2000] 10 NWLR (Pt 674) 221 at 228, and Section 167[d] of the Evidence Act. Given these circumstances, the only credible evidence of the cause of the accident is the Claimant’s evidence. As noted by the Supreme Court in Ahmed v. The State [1999] 7 NWLR (Pt 612) 641 at 675, in a situation where only the evidence of the Claimant as to the accident is the only eyewitness account, he is either believed or there is no other evidence to believe. Therefore, I find as a fact that the Claimant’s account of the accident is more probable than the evidence of the defence witness. I also find that the accident was caused by the trainee’s negligence.

41.     The fact of injury, that is, the loss of the Claimant’s middle, ring, and little fingers of the left hand, is not disputed. Exhibits 3 and D4 detail the injury suffered by the Claimant. Three pictures are attached to Exhibit 3. The first is a picture of the Claimant’s injured fingers. The second is a picture of the Claimant at the factory, and the third picture shows the Claimant’s bandaged hand. Exhibit D4 is the medical report from Dasochris Hospital, and is to the effect that the Claimant was rushed to the facility on 2nd February 2021 on account of an industrial accident involving his left fingers, which occurred while he was at his duty post. It was reported that on presentation, the Claimant was in serious pain and was bleeding from the middle and left fingers, and there was amputation of the proximal phalanges of the middle, ring, and little fingers of the left hand. Thus, the Claimant has met the three requirements of negligence.  

42. In Conoil Plc & Anor v. Solomon [2017] 3 NWLR (Pt 1551) 50 at 82, the Court of Appeal held that where it is sought to make a master liable for the conduct of his servant, the questions to be established are whether the servant was liable and whether the employer must shoulder the servant’s liability. Consequently, to succeed against the master, the Claimant must prove three things: the liability of the wrongdoer; that the wrongdoer is a servant of the master; and that the wrongdoer acted in the course of his employment with the master. It is not disputed that the trainee was an employee of the Defendant and was in the course of his duty at the time of the accident. For this purpose, it is immaterial that the act which the employee is expressly authorised to do is lawful, and the employee does the act in such a manner as to occasion injury to a third party. Please refer to Conoil Plc & Anor v. Solomon [supra]. Given that the Defendant owed the Claimant a duty of care, and the trainee was an employee of the Defendant, and was in the course of his duty when he caused the accident, I find as a fact that the Claimant has established the Defendant’s liability.

43.     The next question is the quantum of damages. The Claimant initially sought N10,000,000 [ten million naira] in the originating process as compensation for the injury, but amended it on 19th June 2023 to read general damages. The Claimant’s testimony is that he suffered so much pain, and he is unable to work again as a result of the permanent partial disability, and that although he was treated for the pain, no treatment could restore his fingers. The Claimant also stated that he was 24 years old when the accident happened, and has lost over 36 years of active work life. The Claimant tendered two exhibits, Exhibits 4 and 5, which are the Claimant’s solicitors’ letter to the NSITF forwarding a cheque for N83,000, and a copy of the cheque. See paragraphs 16, 17, 19, and 20 of the Claimant’s sworn statement. The Defendant’s response is that on 5th April 2021, it submitted a letter to the NSITF with the Claimant's details and the statutory Forms, which letter was received on 6th April 2021. After initiating the Claimant’s compensation process, the Defendant filled out all required forms and requested the Claimant to complete Form ECS.CCF02 and ECS.CCF03. However, the Claimant has failed to do so. After several days without a response, the Defendant forwarded all necessary documents to the NSITF on 20th May 2021. The NSITF replied on 2nd June 2021, stating that the documents were returned because the Claimant did not complete his sections of the forms. The Claimant’s salary was paid, but the Claimant refused to come forward to receive the April 2021 salary despite the Defendant's offer. The Defendant also stated that it granted the Claimant a two-month leave of absence from duty and paid over N200,000.00 in medical bills. It was further stated that the Claimant misrepresented and suppressed material facts in this suit to obtain undue advantage, whereas his recalcitrant attitude, as well as his refusal to depose to and sign necessary NSITF forms, frustrated the process of his due compensation by NSITF, whose papers filed on his behalf are still pending. The Defendant further stated that the Claimant was informed to continue his employment in any department suitable to his condition after recuperation and to receive due compensation from the NSITF, thereby sustaining his means of livelihood, which the Claimant refused. See paragraphs 11-17, 20, and 21 of the Defendant’s witness’s sworn statement. The Defendant tendered 10 exhibits. Exhibits D1, D8, D9, and D10 are the Defendant’s correspondence with the NSITF. Exhibits D2 and D3 evidence the cost of the Claimant’s treatment. Exhibit D5 is the two months’ excuse duty, while Exhibit D7 consists of the Claimant’s pay slips for February and March 2021. 

44.     A review of the evidence before me shows that the Defendant took steps to secure compensation for the Claimant under the Employees’ Compensation Act, 2010. However, the process was aborted by the Claimant’s failure to execute and return the requisite forms. Consequently, by letter dated 2nd June 2021 (Exhibit D10), the NSITF returned the claim documents to the Defendant. So, at the time this suit commenced on 7th September 2021, there was no pending application for compensation under the Employees’ Compensation Act. On 19th November 2021, the Court directed the parties to explore an amicable settlement and adjourned for a report on settlement or trial. On 4th April 2022, the Claimant’s counsel reported that the Claimant had submitted the requisite forms preparatory for compensation. Based on this, the NSITF processed the Claimant’s application, and commenced payment of his monthly stipends. Dissatisfied, the Claimant’s solicitors, by letter dated 14th March 2023, returned N83,000 to the NSITF and continued with the case.

45.     Learned counsel for the Defendant argued under issue two that, having filed the requisite NSITF forms for payment of his compensation, the Claimant is estopped from withdrawing, as doing so amounts to approbating and reprobating. Counsel argued that the action is spent and the right of action has been extinguished, relying on Section 12 of the Employees’ Compensation Act. Conversely, learned counsel for the Claimant argued that the suit is founded on negligence and was not brought under the Employees’ Compensation Act, and given that the Defendant made the filing and submission of the NSITF forms a condition precedent to any settlement, and when the settlement failed, parties reverted to the status quo ante, hence the continuation and conclusion of the trial. Counsel relied on Exhibit 4 and argued that the Defendant is estopped from raising this issue. The provision of Section 12[1] of the Employees’ Compensation Act is clear. It is in lieu of any right of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which an employee, dependent or member of the family of the employee is or may be entitled against the employer of the employee, or against any employer within the scope of this Act, or against any employee, in respect of any death, injury or disability arising out of and in the course of employment and where no action in respect of it lies. Thus, the employee may elect to claim compensation under the Act or bring an action in negligence under the common law. If the employee elects to make a claim under the Employees’ Compensation Act, the appropriate body to make the claim to is the NSITF, not this Court. The case can only come to this Court by way of an appeal against an award by the NSITF under Section 55[4] of the Employees’ Compensation Act. That is not the case here. The Defendant initiated the process in April 2021 without the Claimant's concurrence, and the application was consequently rejected by the NSITF before the Claimant initiated this suit. The subsequent filing of a claim to the NSITF while this suit is pending is an aberration and offends Section 12[1] of the Employees’ Compensation Act. The Claimant’s counsel argued that the Defendant made that a condition precedent to any settlement. Having done so, it cannot rightly complain when the settlement broke down. Arising from the foregoing, I hold that the Claimant’s action is in negligence, and not under the Employees’ Compensation Act. Therefore, the question of estoppel does not arise. Equity will operate to prevent the Defendant from taking advantage of its wrong.

46.     Now, on the quantum of damages, the general principle of the law of liability, especially in torts of negligence, is that the award of damages depends on whether a party has established his case or not. I found in this judgment that the Claimant has established negligence against the Defendant. The effect of this finding is that the Claimant is entitled to damages, which are presumed by law to flow from the wrongful act of the Defendant and are awarded to assuage the loss. Damages may be awarded for the pain, suffering, and nervous shock that the Claimant underwent and is likely to undergo in the future, as noted in Mobil Producing Nig. Unlimited & Anor v. Udo [2008] 36 WRN 53 at 103, Hamza v. Kure [2010] LPELR-1351[SC] 22, and Charles Uta v. Golfic Securities Nigeria Ltd & Ors [2024] 5 NWLR [Pt 1930] 17 at 57. This Court is empowered by Section 19[d] of the National Industrial Court Act, 2006, to award compensation or damages in any circumstances contemplated by the Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear. Additionally, damages for physical injury, pain and suffering, worry and anxiety for the future arising from the disability cannot be measured in monetary terms. See Hanseatic International Limited v. Martin Usang [2002] 13 NWLR [Pt 784] 376 at 405. 

47. In Ediagbonya v. Dumez (Nig.) Ltd & Anor [1986] 3 NWLR (Pt 31) 753 at 761-762, the Supreme Court held that, in personal injury cases, two main factors have to be taken into consideration in assessing damages. These are: the financial loss resulting from the injury; the personal injury, involving not only pain and suffering, but also the loss of the pleasures of life. Perhaps one of the most difficult exercises in assessing damages is quantifying the loss, whether financial or personal. The Court proceeds on the assumption that damages are compensation for injury sustained and are not intended to be punitive. The Court acknowledged that damages are meant to be full and adequate, but noted that the fullness and the adequacy of damages awarded as compensation will, in each case, depend on proved solid facts of the case and a just and fair assessment of the effect of the injury complained of. In respect of assessment of damages for personal loss, which involves pain and suffering, and the loss or diminution of the enjoyment of life, the term "personal loss" denotes every kind of harm and disadvantage which flows from a physical injury, other than the loss of money or property. It therefore necessarily includes the loss or impairment of the integrity of the body; pain and suffering, both physical and mental, loss of the pleasures of life, actual shortening of life, and mere discomfort or inconvenience. In Babatunde Ajala v. Rite Pak Company Limited, Suit No. NICN/LA/432/2013, judgment delivered on 28th January 2019, this Court awarded N10m for the loss of three fingers. The Claimant is a machine operator who has been significantly impaired by the accident. 

48.     The Defendant’s offer to the Claimant to choose any other department he could work after recuperation is an admission that life can never be the same for the Claimant, and that he will not be able to do those things he used to do before. Additionally, there is evidence that the Claimant was 24 years old at the time of this accident. Therefore, considering the peculiar facts and circumstances of this case, the degree of disability and the fact that the Claimant will never be able to use his left hand effectively again, the rate of inflation, and the fact that life will never be the same again for him, and the fact that the Defendant took care of the medical bills, it is my firm view that the Claimant is entitled to a fair compensation for the permanent partial disfigurement. Accordingly, I award the Claimant N7,500,000.00 [seven million, five hundred thousand naira]. 

49.     The second claim is for the cost of this suit. The law is that costs follow the event in litigation, and a successful party is entitled to his costs. The Court has the discretion to award costs, and this discretion must be exercised both judicially and judiciously, as illustrated in DHL International Nigeria Limited v. Eze-Uzoamaka & Anor [2020] 16 NWLR (Pt 1751) 445 at 500, and Order 55, Rules 1 and 5 of the Rules. In determining costs, the principle to follow is that the successful party should be indemnified for the expenses he has unnecessarily incurred during the proceedings, as stated in Order 55, Rule 5 of the Rules. The Court considers several factors, including the filing fees paid, the vexatious nature of the defence, the cost of legal representation, the monetary value at the time the expenses were incurred, and the currency's value today. Please refer to Chijioke v. Soetan [2006] 11 NWLR (Pt 990) 179 at 217-218 and Adelakun v. Oruku [2006] 11 NWLR (Pt 992) 625 at 650. In this case, evidence of the cost of legal representation is not available in the Court’s records. The documented expenses are N45,050. The Claimant participated in these proceedings 14 times and was represented by counsel 15 times. The case lasted approximately 50 months. After thoroughly considering all the facts and circumstances, I hold that the Claimant is entitled to the costs of this action, and I award him N750,000 [seven hundred and fifty thousand naira] in costs.

Judgment is entered accordingly.

…………………………………..

IKECHI GERALD NWENEKA

JUDGE

          27/1/2026

          Attendance: Parties present

          Appearances

James Babatunde Alara Esq. with J. O. Alara Esq., and Isaac Abiodun Olagoke Esq. for the Claimant

          Tope Ashaolu Esq. for the Defendant