Ilesanmi Temokun -VS- Nestle Nigeria Plc & ORS- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

DATE: 15^TH OCTOBER 2024

SUIT NO: NICN/IB/29/2022

BETWEEN

Ilesanmi Temokun Claimant

AND

1. Nestle Nigeria Plc

2. Mary Bolajoko Consultancy Services Ltd Defendants

REPRESENTATION

F. I. Dennis with Tope Temokun for the Claimant

Abraham Adeoye with Mustapha Erinfolami for the 1^st Defendant

Akinsunbo S. Akande with B.O Ogunbanjo for the 2^nd Defendant

JUDGMENT

1. Introduction & Claims

1. On 3/6/22 the Claimant filed a General Form of Complaint and sought the following reliefs against the Defendants –

1. A Declaration that the Claimant is entitled to the payment of compensation and or damages by the 1^st Defendant as a result of the negligence of the 1^st Defendant which led to the life threatening injuries and permanent incapacitation of the Claimant to engage strenuous works or exercise for life, suffered by the Claimant while working for the 1^st Defendant.

2. An Order of this Honourable Court mandating the 1^st Defendant to pay the sum of Ten Million Naira (=N=10,000,000.00) only to the Claimant being general damages for the injuries sustained at work for the 1^st Defendant.

3. And for such further order(s) this Honourable Court may deem fit to grant in the circumstance.

2. Case of the Claimant

2. Claimant opened his case on 20/3/23. He testified as CW1, adopted his witness deposition dated 3/6/22 as his evidence in chief. He also adopted his further witness deposition of 4/11/22 as his further evidence in chief. Claimant tendered 4 documents as exhibits which were admitted in evidence and marked as Exh. T1-Exh. T4.

3. Under cross examination, CW1 testified that he is a graduate of English and Literary Studies and holds a B. Arts Degree; that he was trained for loading materials into machine; that he is aware his Solicitor wrote a letter to the 1^st Defendant; that at the time of the accident he was a staff of the 2^nd Defendant; that the accident happened at the Clock Room; that it is also the dressing room; that it is the place where employees changed their cloths for the uniform provided by the 1^st Defendant; that he has been loading materials into machines since he joined the 1^st Defendant; that he was not alone in the Clock Room on the day of the accident; that he could not remember the names of the other staff there with him on that day; that he has been using the Clock Room ever before the accident of 4/9/21; that the lockers in the Clock Room had never fallen on any staff to his knowledge before the accident of 4/9/21; that he did not count the number of lockers that fell on him.

4. Witness added that he is aware that other staff with him on the day of the accident were also employees of the 2^nd Defendant; that when the lockers fell on him he collapsed and only found himself at the hospital; that he does not know if the 1^st Defendant paid his hospital bill; that he was not the person who paid his hospital bill; that when he was discharged by Owokoniran Hospital he was not referred to any other hospital for treatment but was only referred to do scan; that he does not know the meaning of spinal shock, its effect and duration; that after he was treated and discharged by Owokoniran Hospital he resumed work with the 1^st Defendant at Flowergate Factory Clinic; that he was later posted to the material tipping (loading) station; that his first place of work with the 1^st Defendant was the material tripping station; that he was later posted to Machine Handling Equipment Unit after he tendered a medical report; that he could not remember the day he was posted out of the Clinic; that after series of complaints he was transferred to Pressing and Wrapping Department; that he was standing while at that Department but not carrying any heavy objects; that he was at Pressing and Wrapping when he tendered the Medical Report of 3/1/22; that after tendering the Report he left work the following day and stopped reporting for work because of his health; that there was no invitation from the 1^st Defendant for medical checks and that he was compelled to work by the 1^st Defendant.

5. On 5/12/23 2^nd Defendant crossed examined CW1. In his testimony, CW1 stated his name to be Ilesanmi Temokun; that his reliefs as read out are against the 1^st Defendant; that as a graduate of Literary Studies he understood words; that he instructed his Counsel to file his claim; that he did not tender any letter of resignation when he left his employment and that he did not work in any other place aside the 1^st Defendant.

3. Case of the Defence

6. 1^st Defendant opened its case on 5/12/23. It called one Olayemi Kumoye, DW1, as its witness. DW1 adopted his witness statement on oath of 31/8/22 as his evidence in chief and tendered 6 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1-Exh. D6.

7. Under cross examination, DW1 stated that he knew the Claimant when he was posted to work with the 1^st Defendant in May 2021; that he was in his office on the day of the incident sometimes in August 2021; that Exh. D2 was addressed to the Claimant only and that Exh. T4 was addressed to the Chief Executive Officer of the 1^st Defendant.

8. 2^nd Defendant opted to not call evidence. It rested its case on the case as presented by the 1^st Defendant.

4. Final Written Addresses

9. The final written address of the 1^st Defendant was dated and filed on 10/6/24. In it, Abraham Adeoye if Counsel set down the following 3 issues for determination –

1. Whether the 1^st Defendant could be held liable in negligence for the injury suffered by the Claimant, considering the incontrovertible evidence before the Court that the incident that caused the injury suffered by the Claimant was the act of third parties who were employees of the 2^nd Defendant.

2. Whether the alleged posting of the Claimant to do strenuous work against medical advice constitutes act of negligence on the part of the 1^st Defendant.

3. Whether the Claimant proved that he suffered the life threatening injuries and permanent incapacitation on which he predicated his claim of =N=10,000,000.00 damages.

10. On issue 1, learned Counsel submitted on behalf of the 1^st Defendant that the locker that caused the injury sustained by the Claimant in the Cloak Room on 4/9/21 fell because it was pushed by 2 other employees of the 2^nd Defendant who engaged in horse play contrary to the safety policy of the 1^st Defendant. Counsel referred to paragraphs 4, 5 & 15 of 1^st Defendant’s statement of defence and the evidence of DW1 and submitted that Claimant did not cross examine the witness on this point and same must be deemed admitted citing Oforlete v. State (2000) LPELR-2270(SC); that 1^st Defendant is not liable for the negligent act of the employees of the 2^nd Defendant citing Clerk & Linsel on Torts, Fifteen Edition; that there is no evidence before the Court that the locker could have fallen on its own if not pushed; that there is no evidence before the Court that the lockers were weak or not properly stacked in the Cloak Room. Counsel urged the Court to so hold.

11. In arguing issues 2 & 3 together, learned Counsel submitted that the burden is on the Claimant to prove that the alleged posting of the Claimant to do strenuous work against medical advice constitutes act of negligence on the part of the 1^st Defendant; that the compliant of the Claimant in this regard did not constitute negligence; that assuming the complaint of the Claimant was correct, 1^st Defendant could not be accused of being negligent in posting the Claimant to do the work he was trained to do he being found to be of sound mind and in the absence of evidence that he was compelled to do the work by the 1^st Defendant. Counsel urged the Court to so hold. Counsel added that there is evidence before the Court that immediately Claimant tendered the second medical report he stopped reporting for work without availing the 1^st Defendant the opportunity to respond to it and that Claimant was offered further healthcare should he reasonably believe he was still having ill health but which the Claimant ignored. Counsel added that again Claimant failed to cross examine the 1^st Defendant on this vital point. Counsel urged the Court to hold that Claimant failed to sustain his allegations that the 1^st Defendant compelled him to do strenuous work against medical advice and that this constitutes act of negligence on the part of the 1^st Defendant.

12. Learned Counsel the burden is on the Claimant to place before the Court credible evidence to support his claim for damages citing LCCC & Anor. v. Unachukwu & Anor (1978)3 S.C 199; that there is absolutely no evidence before the Court to show the state of health of the Claimant upon which the Court would determine that the amount being claimed is justified and commensurate to his condition; that Exh. T1 & Exh. T2 tendered are only medical reports which merely indicate that the Claimant had spinal shock when the incident happened; that neither of the exhibits explained the nature of the shock, its effects and duration; that the Claimant could also not explain the meaning of spinal shock and that indeed Claimant failed to prove the injuries are life threatening and has caused him permanent incapacitation to engage in strenuous work for life. Counsel further referred to Exh. T4 in which Claimant’s Solicitor demanded that Claimant be employed as a full staff of 1^st Defendant just 6 days after leaving 1^st Defendant’s factory and submitted that if indeed the injuries sustained by the Claimant are life threatening and has incapacitated him permanently as he claimed he would not demand for employment in a production factory where he claimed his health is deteriorating.

13. Finally, learned Counsel urged the Court to dismiss the case of the Claimant in its entirety for lack f proof.

14. The 29-page final written address of the 2^nd Defendant was dated and filed on 25/6/24. In it learned Counsel set down 2 issues for determination as follows –

1. Whether considering the pleadings, the totality of the oral evidence and documentary evidence placed before this Honourable Court, the Claimant has established any cause of action and or reliefs against the 2^nd Defendant in this matter.

2. Whether considering the totality of the processes before this Honourable Court, this Honourable Court has requisite jurisdiction on the matter as presently constituted before it.

15. On issue 1 learned Counsel cited Order 3 Rule 8 of the Rules of this Court, the reliefs sought by the Claimant and submitted that none of the reliefs sought is targeted at the 2^nd Defendant; that the Claimant while testifying also affirmed the fact that he has no claims against the 2^nd Defendant. Accordingly learned Counsel submitted that the Claimant has no cause of action against the 2^nd Defendant citing Rev. Rufus Iwuajoku Onuekwusi & 8 Ors v. The Registered Trustees of the Christ Methodist Zion Church (2011)6 NWLR (Pt. 1243)341 at 359-360 and pray the Court to resolve this issue in favour of the 2^nd Defendant and dismiss this case as against it.

16. With respect to issue 2, learned Counsel submitted that the originating processes in this suit were served on the 2^nd Defendant in Sagamu, Ogun State outside of jurisdiction where it was issued; that by Section 97, Sheriff and Civil Processes Act, ought to be specially endorsed to reflect service out of jurisdiction; that the word used in the statute is shall thus making compliance mandatory citing Odusote v. Odusote (2012)3 NWLR (Pt. 1288) 478 at 497 & Owners of MV Arabella v. Nigeria Agricultural Insurance Corporation (2008)11 NWLR (Pt. 1097) 182; that the law is trite that where a statute lays down a procedure for doing anything no other method is to be employed in doing the thing citing Nwankwo v. Yar’Adua (2010)12 NWLR (Pt. 1209) 518 at 559; that the instant suit was not initiated in compliance with due process citing Uwajeh v. Uwajeh (2009)All FWLR (Pt. 458) 287 and that failure of the Claimant to comply with the Sheriff & Civil Process Act renders this suit incompetent. Learned Counsel urged the Court to so hold and accordingly dismiss the case of the Claimant in its entirety.

17. The 34-page final written address of the Claimant was dated 11/7/24 but filed on 15/7/24. On behalf of the Claimant, 4 issues were set down for determination as follows –

1. Whether the provisions of the Sheriff and Civil Process Act, 2004 apply to regulate the service of originating process issued by the Registry of this Honourable Court within Nigeria.

2. Whether the 1^st Defendant’s document tendered and marked as Exh. 1 is not liable to be struck out for being inadmissible or held not to be of any probative value.

3. Whether based on the pleadings and the evidence led at trial, there is proved(sic) of employment relationship between the Claimant and the Defendants to which the Defendants can be held jointly and severally liable in negligence for the injury sustained by the Claimant while working for the 1^st defendant at its Flowergate Factory as directed by the Defendants.

4. Whether based on the pleadings and evidence led, the Claimant has not established a case of negligence against the 1^st Defendant to be entitled to his claims for the compensation sought in this case.

18. On issue 1, learned Counsel submitted citing Section 21 (1) & (2), National Industrial Court Act, 2006 and Order 7 Rule 7 of the Rules of this Court that the Sheriff & Civil Process Act does not apply to service of originating processes at the National Industrial Court since the Court has one jurisdiction throughout the Federal Republic of Nigeria; that while Order 1 Rule 10(2) of the Rules defined out of jurisdiction to mean out of the Federal Republic of Nigeria it also defined within jurisdiction to mean within the Federal Republic of Nigeria. Counsel also cited Johnson & Anor. v. Eze & Anor. (2020) LPELR-49636 & Samuel v. APC & Ors (2023) LPELR-59831(SC) and further submitted that the addresses of both Defendants are within the Federal Republic of Nigeria and were both served within the jurisdiction of this Court. Counsel urged the Court to resolve this issue in favour of the Claimant.

19. With respect to issue 2, learned Counsel submitted that Exh. 1 which was the Radiologist’s Report was tendered through the DW1; that the exhibit though made by one Dr. S.B. Adebayo, the maker was not called; that it is a trite law that a party who did not make a document is not competent to give evidence on it and that such a document if admitted should not be accorded any probative value citing Wike Ezenwo Nyesom v. Hon. (Dr.) Dakuku Adol Peterside & Ors (2016)7 NWLR (Pt. 1512) & Gbadamosi v. Wema Bank & Anor. (2021) LPELR-53423. Accordingly learned Counsel urged the Court to either expunge Exh. 1 or not attach any probative value to it since its maker was not called to give evidence on it.

20. On issue 3, Counsel referred to paragraphs 2 and 3 of the statement of facts and paragraphs 3 and 6 of the statement of defence and submitted that the pleadings and evidence led raised issues of employment relationship as to what the International Labour Organisation (ILO) termed a triangular employment relationship or disguised or objectively ambiguous triangular employment relationship citing ILO The Scope of Employment Relationship )ILO Report V), PENGASSAN v. Mobil Producing Nigeria Unlimited Unreported Suit No: NIC/LA/47/2010 and Anthony Agum v. United Cement Company Ltd (UNICEM) & Anor. Suit No: NICN/LA/2013 Judgment of which was delivered on 3/3/17. Learned Counsel submitted that from the evidence led it is evidently clear that there was an agreement between the Defendants whereby 1^st Defendant contracted the 2^nd Defendant to provide labour services for the 1^st Defendant; that based on the agreement the Claimant was hired and posted to go and work for the 1^st Defendant; that the employment relationship imposes a duty of care on the Defendants to provide the Claimant with safe working environment and the breach of the duty entitles the Claimant to a claim in damages citing Iyere v. Bendel Feed and Flour Mill Ltd (2008)18 NWLR (Pt. 1119) 300 & Kabo Air v. Mohammed (2015)5 NWLR (Pt. 1451).

21. Learned Counsel submitted further that the argument that the 2^nd Defendant is an independent contractor or third party contractor and that the injuries sustained by the Claimant were caused by employees of the 2^nd Defendant does not hold water; that the evidence before the Court shows that the 2^nd Defendant was contracted by the 1^st to meet its labour needs; that when a case involves tort-feasors a plaintiff is at liberty to pursue his claim against any of the joint tort-feasors citing Iyere v. Bendel Feed and Flour Mill ltd (2008) LPELR-1578 and that the liability of an employer is not reduced where he employed an independent contractor to perform an act and the action of any of the persons employed by the said independent contractor gave rise to a tortuous action citing NB Plc v. Mba & Anor. (2018) LPELR-46684.

22. Learned Counsel submitted that the 1^st Defendant was in breach of its duty of care to the Claimant citing Ighereriniovo v. SCC Ltd (2013)10 NWLR (Pt. 1361) SC 138 in that but for the failure of the 1^st Defendant to firmly fit and fasten the iron lockers in the cloak room the accident that caused Claimant’s injury would not have occurred; that by sections 7 – 50 of the Factories Act, 2004, 1^st Defendant is required to protect the health and safety of workers at its workplace and to also provide a safe system and place of work and to take measures to ensure the safety of its workers and having failed to do so the 1^st Defendant was in breach of its duty of care to the Claimant.

23. On issue 4, Counsel submitted that the Claimant suffered damages as a result of the 1^st Defendant’s breach of the duty of care owed the Claimant; that negligence is only actionable if actual damage is proved; that evidence led showed that iron lockers fell on the Claimant while in the workplace of the 1^st Defendant and was not cross examined on this fact; that parties are in agreement that Claimant sustained injuries from the accident; that once a Plaintiff leads evidence establishing a duty of care owed him by the Defendant, a breach of that duty by the Defendant and the resultant damages he is entitled to his claim for damages for negligence citing Ehimen v. Benin Electricity Distribution Co Plc (2016) LPELR-4081 & UTA v. Golfic Securities (Nig.) Ltd & Ors (2022) LPELR-57079. While citing Section 19(d), National Industrial Court Act, 2006 learned Counsel urged the Court to make appropriate order as to compensation/damages that will meet the justice of this case having established negligence against the 1^st Defendant.

23A. On 30/8/24 the 1^st Defendant filed an 18-page Reply to the Final Written Address of the Claimant. I read and carefully digested same.

5. Decision

24. The facts of this case are simple and straight forward. The 3 parties here were involved in an employment relationship. 2^nd Defendant is in the business of recruiting staff to work for interested employers. 1^st Defendant, a food manufacturing and marketing conglomerate, is a client of the 2^nd Defendant which has been providing it with labour since its inception. Mr. Ilesanmi Temokun, the Claimant, was employed by the 2^nd Defendant to work for the 1^st Defendant at its Flowergate Factory in Sagamu, Ogun State. On 4/9/21 when the Claimant resumed work with the 1^st Defendant in the 1^st Defendant’s premises and precisely in the Cloak Room, a locker suddenly fell on four other lockers and on the Claimant. Claimant who sustained some injuries, was unconscious and was rushed to Owokoniran Memorial Hospital, Sagamu where he was admitted and treated. Upon being visited in the hospital by the Safety, Health and Management Team of the 1^st Defendant, Claimant suggested to the Team that the iron lockers be firmly bolted and fastened to prevent re-occurrence of the accident that happened to him. Upon discharge from the Hospital and resumption at work, Claimant’s health condition appeared to worsen. He thus instituted this action seeking damages for negligence on the part of the 1^st Defendant for the injury he sustained. While the 2^nd Defendant argued that there is no reasonable cause of action against it, the 1^st Defendant asserted that it was not in any way negligent but that the accident was caused by 2 other employees of the 2^nd Defendant who were engaged in horseplay on the day of the incident in the Cloak Room.

25. I read and have a clear understanding of all the processes filed by the parties on either side. I heard oral testimonies of the witnesses call at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I, in addition, heard the submissions of the learned Counsel for the parties at the point of adopting their final written addresses. Having done all this, I set down these issues for the just determination of this case –

2. Whether the Claimant proved that he suffered the life threatening injuries and permanent incapacitation on which he predicated his claim of =N=10,000,000.00 damages

26. The first issue as set down for determination is whether considering the pleadings, the totality of the oral evidence and documentary evidence placed before this Honourable Court, the Claimant has established any cause of action and or reliefs against the 2^nd Defendant in this matter. What then is meant by cause of action? Admittedly, the term cause of action is an expression that defies precise definition. It is however not out of place to postulate it as the fact or facts, which establish or give rise to a right of action. It is, in the wise words of Ubaezonu, JCA in Omotayo v. N.R.C. (1992) 7 NWLR (Part 234) 471 at 483, the factual situation which gives a person a right to judicial relief. A cause of action is the reason and foundation for a suit filed by the Claimant. The Supreme Court had earlier put it more succinctly in Nosiru Bello & Ors. v. Attorney General of Oyo State (1986) 5 NWLR (Pt. 45) 828 thus: "A cause of action is a bundle of aggregate of facts which the law recognises as giving the Plaintiff a substantive right to make a claim against the relief or remedy being sought."

27. Now in considering whether or not a Claimant has or does not have a cause of action, the originating process filed is the focus for it is in same that the Claimant explains his reason for instituting his action, his Defendant(s) and the reliefs sought against them. By the endorsements made on the Compliant in this case, Claimant seeks 3 main reliefs. I opt to reproduce them thus –

3. And for such further order(s) as this Honourable Court may deem fit to grant in the circumstance.

28. No mention was made of the 2^nd Defendant in these endorsements. The reliefs sought are all as against the 1^st Defendant.

29. I also perused the 25 paragraph statement of facts of the Claimant. The name of the 2^nd Defendant was mentioned only in 3 paragraphs viz- paragraphs 2, 4 & 5. The summary of these paragraphs is that the 2^nd Defendant recruited the Claimant on behalf of the 1^st Defendant and posted him to go and work for the 1^st Defendant. Claimant did not indicate any wrong committed against him by the 2^nd Defendant to justify the presence of the 2^nd Defendant in this suit except that it offered him an employment. There is thus no reason for the 2^nd Defendant to be part of this proceeding as I find no cause of action established against it. I resolve this issue in favour of the 2^nd Defendant and accordingly dismiss the suit of the Claimant as against the 2^nd Defendant for the absence of any cause of action.

30. The second issue for determination is: Whether the Claimant proved that he suffered the life threatening injuries and permanent incapacitation on which he predicated his claim of =N=10,000,000.00 damages. Essentially the case of the Claimant is a claim in negligence for payment to him of the sum of =N=10,000,000.00 as general damages for the injuries sustained while working for the 1^st Defendant. By both the case law and the statute law, the burden is on the Claimant to prove his case by adducing cogent, credible and admissible evidence in support of his assertion. Failure to do this will leave the Court with no option than to dismiss his case for lack of proof. What then is negligence and what elements are expected to be proved by the Claimant?

31. Negligence is said to be a fluid principle, which has to be applied to the most diverse conditions and problems of human life. See Ojo v. Ghahoro & ors (2006) LPELR-2383 per Ogbuagu JSC. Nimpar JCA, citing Chevron (Nig.) Ltd & Anor v. Omoregha & Ors (2015) LPELR-24516(CA) in Union Bank of Nigeria Plc v. Dr. Moses Abayomi Obajinmi (2022) LPELR-57354(CA) said -

"The term negligence denotes the failure to exercise the standard of care that a reasonably prudent person would normally have exercised in a similar situation. That's to say, any conduct falling below the legal standard established to protect others against unreasonable risk of harm, as against conduct that is intentionally, wantonly, or willfully disregardful of other's rights”

32. According to Black's Law Dictionary 9th Edition 2009 at 1133 negligence usually includes culpable carelessness which is also termed actionable negligence; ordinary negligence; simple negligence. Thus in the words of Patrick Devlin in The Enforcement of Morals (1968) at 36 and copiously alluded to in Black's Law Dictionary (Supra) at 1133, Negligence in law ranges from inadvertence that is hardly more than accidental to sinful disregard of the safety of others. Negligence is a question of fact not law. Therefore each case must be decided in the light of its own facts and circumstances. The facts of a case bordering on negligence must be proved by the person who asserts same. This is in tandem with the age-long established principle of law that he who asserts must prove the assertion. See Okorie v. Unakalamba (2013) LPELR-22508 (CA).Therefore failure to prove particulars of negligence pleaded is fatal to the plaintiffs case See Alhaji Otaru and Sons Ltd vs Idris (1999) 6 NWLR (Pt 606) 330.

33. In a case of this nature, that is a case founded on negligence, SPDC Nigeria Limited v. Ikontia & Ors. (2010) LPELR-4910 (CA) decided that in order for a Claimant to succeed, he must prove the followings - (a) that the Defendant owed him a duty of care; (b) that the duty of care was breached and (c) that he suffered damages arising from such breach. It is imperative to bear in mind that a mere occurrence of an accident is not a proof of negligence. Negligence is also not proved simply because a party sustains an injury in the course of his employment. Thus, where there is duty of care and that duty is breached without an injury sustained there will be no award of damages. Secondly, where there is no duty of care but a party sustains an injury, no damages will lie for negligence. Thirdly, where there is no duty of care and accident occurs leading to injury the Court will not intervene to award damages.

34. The point has earlier been made that negligence is a question of fact to be proved. The proof required is by cogent, credible and admissible evidence. A party seeking damages in negligence must prove the 3 identified elements of negligence. He must prove the existence of a duty of care. He must prove the breach of that duty of care. He must also prove the damage resulting from the breach of the duty of care owed. The circumstances leading to the accident, the nature and extent of the accident must be pleaded and cogent evidence adduced in support. It is then that the Court will be able to determine whether partially or wholly, either the Claimant or the Defendant, caused the accident. See Abubakar & Anor. v. Joseph (2008) LPELR-48 (SC). I have taken time in setting out the law on negligence so as to prepare ground for the next enquiry which is whether the Claimant in this case has discharged the burden of proof on him to be entitled to a positive disposition by this Court.

35. Did the 1^st Defendant owe the Claimant any duty of care? In the resolution of issue 1, this Court has found that there is no reasonable cause of action by the Claimant against the 2^nd Defendant. This is notwithstanding that there existed an employment relationship between the Claimant and both Defendants. Claimant testified in chief that he worked for the 1^st Defendant and that he sustained injuries while working for the 1^st Defendant on 4/9/21. These facts were not contested by the 1^st Defendant safe that it argued that Claimant was employed by the 2^nd Defendant who is an independent third-party contractor to provide services to the 1^st Defendant. This argument would not suffice in the circumstance. At best the relationship between the parties can be described as triangular or disguised employment but which is by no means less than an employment relationship.

36. This Court had while expounding on The Scope of Employment Relationship (ILO Report V) in PENGASSAN v. Mobil Producing Nigeria Unlimited (2013)32 NLLR (Pt. 92) 243 enthused thus –

“A look at the actual relationship of the members of the appellant vis-à-vis MPNU and the Forum of Contractors will reveal that the relationship yields to what International Labour Organisation (ILO) terms disguised or objectively ambiguous employment relationship, which is meant to either mask the identity of the employer (where the person designated as employer is an intermediary with the intention of releasing the real employer from any real involvement in the employment relationship and above all from any responsibility to the workers) or mask the form in which the relationship is established (as where the nature of the employment relationship is intentionally misrepresented so as to deny certain rights and benefits to dependent workers”.

37. Agbakoba J of this Court (now of blessed memory) citing PENGASSAN v. Mobil Producing Nigeria Unlimited (2013)32 NLLR (Pt. 92) 243 in Anthony Agum v. United Cement Company Ltd (UNICEM) & Anor. Suit No: NICN/CA/71/2013 Judgment of which was delivered on 3/3/17 said thus –

“From the submission of the Claimant that he was employed by the 1^st Defendant and posted to work with the 2^nd Defendant a position also admitted by the Defendants I find raises issues of the relationship between the parties (1^st Defendant, the Claimant and the 2^nd Defendant) i.e whether it is not one of a triangular employment relationship. … From the foregoing I find that the parties have a co-employment or triangular employment relationship. This means that the argument of the 1^st Defendant regarding the absence of privity of contract cannot be upheld. And that being the case I find that the Claimant would be well within their right to bring this action against the Defendants jointly and severally as he has done”.

38. The bottom line of the foregoing is that notwithstanding how Claimant was recruited to work for the 1^st Defendant, the latter is by no means excused from owing a duty of care to the Claimant.

39. At Common Law, even the existence of employment relationship, imposes a duty of care on the employer respecting his employees. The Court of Appeal in Kabo Air Limited v. Mohammed (2014)LPELR-23614(CA) reiterated the position thus -

"...it is settled law that it is the duty of an employer, acting personally or through his servants or agents, to take reasonable care for the safety of his workmen and other employees in the course of their employment. This duty extends in particular to the safety of the place of work, the plant and machinery and the method and conduct of work''.

40. The Court, while noting that the duty of care of an employer to the employee is not restricted to the matters stated, further approved the Judgment of Lord Wright in Wilsons and Clyde Coal Co. Ltd v. English (1938) AC 57 at 84 that -

"The whole course of authority consistently recognizes a duty which rests on the employer, and which is personal to the employer, to take reasonable care of the safety of his workmen, whether the employer be an individual, a firm or a company, and whether or not the employer takes any share in the conduct of the operations."

41. It suffices from the pleadings of the parties and the unchallenged evidence led to hold and I do so that the 1^st Defendant as the employer of the Claimant owed the Claimant a duty of care.

42. Has the Claimant proved the second element of negligence which is that the duty of care owed was breached? It is not sufficient that there exists a duty of care owed by the Defendant to the Claimant to be entitled to award of damages. The Claimant is under an obligation to prove that the Defendant breached that duty of care. The mere occurrence of an accident is not enough to make a claim for damages. The accident must be linked to the fault or failings of the Defendant. See Avon Crown Caps & Containers Nig. Limited v. Bamigboye (2005)17 NWLR (Pt. 954) 275.

43. The Claimant testified in chief that upon resuming for work in the afternoon on 4/9/21 and while he was in the cloak room of the 1^st Defendant, a locker suddenly fell on four other lockers and he was buried under the heap of 5 lockers; that he became unconscious and was rushed to Owokoniran Hospital for medical attention and that medical report indicated his predicament. It is the case of the Claimant that the 1^st Defendant was negligent for failing to firmly bolt the Iron Lockers in its Cloak Room. Secondly that the 1^st Defendant failed to adhere to the Medical advice of Owokoniran Memorial Hospital as contained in the Medical Reports dated 12/10/21 and 3/1/22. Thirdly, that 1^st Defendant failed to take every precaution reasonably necessary for the protection of its workers or staff and to maintain a healthy and safe work environment. The 1^st Defendant did not controvert the fact that the iron lockers fell on the Claimant in its Cloak Room and that Claimant sustained injuries. All that 1^st Defendant said in rebuttal is that a locker did not fall suddenly but rather the lockers fell as a result of 2 colleagues of the Claimant who were engaged in horseplay in the changing room in the process of which they pushed down one of the lockers which caused other lockers to fall and one fell on the Claimant who was also in the cloak room at the time.

44. I have no evidence to support the assertion of the 1^st Defendant. The said 2 colleagues of the Claimant were not called to testify. It is the duty of the 1^st Defendant as an employer of labour to make workplace a safe place for its employees. That duty was breached by the 1^st Defendant in the instant case. I so hold. For if the lockers had been properly fixed to the wall and adequate measures put in place to ensure safety and protection of the employees who used the cloak room the accident of 4/9/21 leading to the injuries sustained by the Claimant would have been avoided. The resulting injury to the Claimant as evidenced by Exh. T2 & Exh. T3 is the damage caused to the Claimant for which he is entitled to an award of damages. It is my finding that the Claimant has discharged the evidential burden of proof on him.

45. Having resolved that the Claimant proved all the elements constituting negligence, what is left is the determination of how much in monetary terms is awardable to the Claimant. The Claimant has sought payment to him of the sum of =N=10,000,000.00 for the injuries he sustained at workplace. Damages for negligence is not just awarded as a matter of course notwithstanding that the Claimant discharged the burden of proof on him. A trial Court as this Court is expected to follow the laid down principles in measuring damages in such situations.

46. In I.M.N.L v. Nwachukwu (2004) LPELR-1526 (SC) the Supreme Court laid it down that –

'' In negligence actions, the measure of damages is that the injured party is to be placed back, so far as money can do it, in the same position as he would have been if it had not been for the defendant's negligence. This is subject to the rules of remoteness of damages and in cases of personal injuries, a reasonable sum for pain and suffering. The dominant rule of law is the principle of restitutio in integrum''.

47. See also UBA Plc v. Gostar Investment Co. Limited (2018) LPELR-(CA) where the Court stated that in negligence actions, the measure of damages is that the injured party is to be placed back, so far as money can do it, in the same position as he would have been in had it not been for the Defendant's negligence. This is subject to the rules of remoteness of damages and in cases of personal injuries, a reasonable sum for pain and suffering.

48. OANDO Nigeria Plc v. Adijere West Africa Limited (2013) LPELR-20591(SC) is one interesting case respecting loss of vehicle. In that case the Court pointed out that ''in awarding damages for loss of vehicle due to negligence, this court has consistently maintained that the measure of damages in negligence is the value of the vehicle at the time of the accident plus such further sum as would compensate the owner for loss of earnings and inconvenience of being without the vehicle during the period reasonably required for procuring another vehicle''.

49. In the instant case, by Exh. T2 Claimant was diagnosed with a spinal shock? from Slipped disc and was unable to move his lower limbs for four days. The author of Exh. T2 then “ … advised that he desist from strenuous works/exercise especially any activity that would involve him carrying heavy object or standing for long period, this is to prevent recurrence of the symptoms he had or its worsening”. When the Claimant returned to work, it would appear that the advice given in Exh. T2 was not adhered to. For, by Exh. T3 issued about 3 months after Exh. T2 it was stated that “Due to current presenting symptoms patient is advised to avoid strenuous work/activities especially those involving the lifting of heavy objects or standing for long period” and that Claimant should be permitted “… to work in a healthy department favourable to his present condition”.

50. SCC (Nig.) Ltd v. Elemadu [2005] 7 NWLR (Pt. 923) 84 to 85, relying on Chaplin v. Hicks [1911] 2 KB 786, held that the fact that damages are difficult to estimate and cannot be assessed with certainty or precision, does not relieve the wrong doer of the necessity of paying damages for its breach of duty of care and it is no ground for awarding nominal damages. The case, relying on Ehidiagbonya v. Dumez (Nig.) Ltd & Anor. [1986] 6 SC 149 at 164; [1986] 3 NWLR (Pt. 31) 753, went on to hold that in assessing general damages, the court has to consider what is fair and reasonable compensation for injuries sustained; and that previous awards made by judges in comparable cases can be relied on. In the area of damages for personal injury, Hamza v. Kure [2010] LPELR-1351(SC); [2010] 10 NWLR (Pt. 1203) 630 SC and Edo State Agency for the Control of AIDS (EDOSACA) v. Osakue & ors [2018] LPELR-44157(CA), relying on Ighreriniovo v. SCC (Nig) Ltd & ors [2013] 10 NWLR (Pt. 1361) 138, held that general damages are awardable for pain and suffering, discomfort and permanent scarring, and that no principle can be laid down upon which damages for such pain and suffering can be awarded in terms of the quantum.

51. In Kenneth Ighosewe v. Delta Steel Co. Ltd [2007] LPELR-8577(CA), the Appellant had claimed in the High Court inter alia for permanent disfigurement of his finger next to the index finger and the partial disfigurement of the thumb. The Court of Appeal, after holding that “it is equally trite that in assessing what is fair and reasonable to bear in mind previous awards made by the Courts in comparable cases in the same jurisdiction or even in a neighbouring locality where similar social, economic and industrial conditions exist”, reviewed the award of damages by the High Court to a higher figure, applying the principle set down in Ebe v. Nnamani [1997] 7 NWLR (Pt. 513) 419, which had similarly increased an award for personal injury to =N=10 Million. That was in 2007. This is 2024. Needless to point out that the value of Naira has nosedived in the last couple of years. Even in Kenneth Ighosewe v. Delta Steel Co. Ltd, citing Ejisun v. Ajao [1975] 1 NMLR 4 at 7, the Court enjoined that awarded damages for pains and suffering and disfigurement, being a lump sum and a once and for all exercise, must also, in order to be fair and reasonable, take care of future economic loss otherwise known as prospective loss in order to keep up with the times and in particular with the economic strength or decline, as the case may be, of our national currency, the Naira.

52. In Babatunde Ajala v. Rite Pak Company Limited Suit No: NICN/LA/432/2013 delivered on 28/1/19, Kanyip PJ of this Court in awarding the sum of Ten Million as damages for negligence for loss of 3 fingers had referred to the decision of the Court of Appeal in Arulogun v. COP Lagos & ors [2016] LPELR-40190(CA), in which Augie JCA (as she then was) commenting on damages arising from violation of human rights had held as follows -

''It is settled that for award of damages to compensate the victims of human rights violation, it must reflect the economic reality of the Country - see Onogoruwa v. I.G.P. (1993) 5 NWLR (Pt.193) 593, wherein it was held -“In these days of racing inflation where the buying or purchasing power of the Naira falls drastically (and painfully so) every day and, therefore, not commensurate to the quality and quantity of goods bought, a Judge should, in the assessment of damages, consider the current market situation. It will be most unrealistic to ignore this fundamental aspect and merely theorize with principles of law and facts and figures presented to him in Court by counsel and witnesses. While the Judge is not expected to play the role of a housewife of Sangross Market, Lagos, Kasuwa Kurimi Market of Kano or the Ogbete Market of Enugu by sampling prices of goods randomly, he must always remind himself that market prices escalate by leaps and bounds and they affect the purchasing power of the Naira”. [Tobi, JCA (as he then was)] In that case, Onogoruwa v. I.G.P. (supra), decided in 1993, Niki Tobi, JCA (as he then was), painted a poor picture of the Naira in 1993, as follows - The Naira is no longer a stable and enduring currency. It floats in the money market adversely. It also floats in the Nigerian wind not because of its physical lightness but because of its loss of monetary value. After all, the Naira is now one heavy coin”.

53. That was the opinion respecting the Nigerian Naira as far back as 1993. No doubt, Niki Tobi JSC of blessed memory would marvel in his grave at the value of our national currency in 2024.

54. Earlier on in the Judgment delivered on 10/5/18, this Court in Mr. Frank Nnnamdi v. Leoplast Industry Limited Suit No: NICN/LA/43/2016 I had awarded the sum of =N=10,000,000.00 as compensation for the injury and permanent disability of the Claimant caused by poor factory safety environment and procedures for the industrial accident leading to the amputation of the Claimant's entire five fingers of his right hand.

55. I have considered all the circumstances of this case including and by no means of least importance the current value of the Nigerian Naira and the near total helplessness situation of the Claimant. I note in addition that the Claimant is a young man of about 37 years. The fact of his age is critical in that it connotes that he would have to find a suitable alternative means of livelihood considering the fact that he is medically restricted from strenuous work/activities especially those involving the lifting of heavy objects or standing for long period. Therefore for all the reasons as contained in this Judgment, I find merit in the case of the Claimant for damages/compensation for the injuries he sustained while at work in the premises of the 1^st Defendant. Unfortunately, the value of Naira has so much depreciated between 2018 when this Court awarded the sum of =N=10, 000, 000. 00 to Mr Frank Nnamdi against Leoplast Industry Limited in Suit No: NICN/LA/43/2016. Limited in Suit No: NICN/LA/43/2016. Unfortunately again, this Court is neither a Father Christmas nor does it have on the regalia of Father Christmas to award to the Claimant more than he sought. Accordingly, the 1^st Defendant is ordered to pay to the Claimant the sum of Ten Million Naira (=N=10,000,000.00) as damages/compensation for the injury sustained on 4/9/21 while working for the 1^st Defendant in its premises.

56. 1^st Defendant is also ordered and directed to pay to the Claimant the cost of this proceedings assessed at Five Hundred Thousand Naira only.

6. Conclusion

57. For the avoidance of doubt and for all the reasons as contained in this Judgment, case of the Claimant succeeds.

1. 1^st Defendant is ordered and directed to pay to the Claimant the sum of Ten Million Naira only (=N=10,000,000.00) as damages/compensation for the injury sustained on 4/9/21 while working for the 1^st Defendant in its premises.

2. The case of the Claimant is dismissed as against the 2^nd Defendant for absence of cause of action.

3. 1^st Defendant is ordered to pay to the Claimant the sum of Five Hundred Thousand Naira as cost of this action.

58. All the terms of this Judgment shall be complied with within 30 days from today after which the Judgment sum shall attract 20% interest per annum until final liquidation.

59. Judgment is entered accordingly.

___ ________________

Hon. Justice J. D. Peters

Presiding