PortHarcourt –His Lordship, Hon. Justice P. I. Hamman of the National Industrial Court of Nigeria, sitting in Portharcourt, on Tuesday 11th December 2018 in a judgment delivered ordered NATIONAL SALT COMPANY OF NIGERIA PLC (defendant) to pay to MR. OMUNNA EKEM (claimant) within 30 days the sum of Thirteen Million Naira only (N13, 000, 000.00) for General damages of the injury sustained due to the negligence of the Defendant, commended the Defendant for the exemplary conduct by not just giving the Claimant medical attention but also retaining the Claimant in its employment.
The Claimant’s originating process was however amended vide an Amended Complaint and Statement of Facts dated 10th March 2016, the Claimant sought against the Defendant among others; Five Hundred Million Naira (N500, 000, 000. 00) being general damages for the loss of amenities of life due to the amputation of the Claimant’s left arm as a result of the Defendant’s negligence. Fifty Million Naira (N50, 000.00(sic)) being general damages for the pains and sufferings caused to the Claimant as a result of the Defendant’s negligence.
Likewise, AN ORDER DIRECTING the Defendant to redeploy the Claimant to a risk-free department and place him on commensurate salary remuneration and allowances with Defendants workers of his category.
It is the case of the Claimant that, he was employed by the Defendant as a welder without an appointment letter but with the promise that his appointment would be confirmed after six (6) months of service to the Defendant. That apart from his duty of welding broken or rusted metals, himself and his colleagues would often be deployed to do work of filter mechanic since the Defendant did not have filter mechanics in its employment.
That on the 1st of November, 2009 himself and his colleagues while he was cleaning one of the machines, one of his colleagues after finishing cleaning machine wanted to switch it on but inadvertently switched on machine his own while his hand was still inside the machine undergoing the cleaning exercise.
The Claimant, who asserted that the accident and the resultant injuries that he suffered were due entirely to the negligence of the Defendant and their servants. Pleaded among others that the Defendant failed to provide the Claimant with the proper safety equipment that would have prevented or minimized the Claimant’s injuries from the accident.
According to the Claimant, the Defendant paid all the medical bills for the surgery and treatment and assured him and his family that his appointment would be confirmed, he would be redeployed to the duty of timekeeper where there is minimal risk, send him to school on scholarship and stand by him through his trying time. That the Defendant put through its promise by confirming the Claimant’s appointment as an Assistant Technician and also bought an artificial arm for the Claimant.
That despite repeated demands by his family and elders of his community for the Defendant to pay him compensation for the permanent handicap and disability suffered while working for the Defendant, the Defendant has not paid him any money or compensation. That he was also being marginalized in the area of salary payment as his colleagues of the same category in the same Department receive better wages than himself.
According to the Defendant, the Claimant who was employed as a casual staff could be assigned to any bit of job as the need arose, and that, as a casual staff the Claimant was not entitled to employment letter or confirmation of the appointment.
It was also pleaded by the Defendant that, the Defendant went out of its way to treat the Claimant specially because of his unfortunate plight by confirming his appointment as a permanent staff, rewarded him with accelerated promotion and gave him salary increments in quick successions with the assurance that he will continue to grow in the service of the Defendant as he keeps putting in his best at his duty post.
The Defendant asked determination, whether in the light of the express provisions of section 12 of the Employees’ Compensation Act, 2010 and the Procedures laid down in the Act for application for compensation, this Honourable Court can rightly assume original jurisdiction to entertain this suit?
After careful analysis of all the processes filed, and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice P. I. Hamman expressed thus;
“…It is my considered view that it is the Workmen’s Compensation Act that should be the applicable law to the Claimant’s case and not the Employees’ Compensation Act, 2010. In any case, the Claimant’s case is for negligence under common law. He is neither suing under the Employees Compensation Act nor the Workmen’s Compensation Act. I so find and hold.
“In the light of the foregoing, therefore, it is the decision of this court that the Claimant’s suit as presently constituted is within the jurisdiction of this court.
“The law is settled that an employer owes his workman/employee a duty of care to take reasonable care to provide not just safe equipment but also a safe system of work and where it is established that the employer was negligent in its duty of care to the employee thereby resulting in injury to the employee, the employer will be held liable in damages.
“I do not think the Claimant was provided with any protective device on the day the accident occurred. In any case, DW informed the court during cross-examination that even if the Claimant had worn any protective wears such would not have saved the Claimant’s hand in the machine with the machine powered on.”
His Lordship ordered the defendant to pay to the claimant within 30 days the sum of Thirteen Million Naira only (N13, 000, 000.00) for General damages of the injury sustained by the Claimant due to the negligence of the Defendant.
The court commended the Defendant for the examplelary conduct shown since after the accident occurred by not just giving the Claimant medical attention but also retaining the Claimant in its employment, urged the Defendant to continue to keep the Claimant so employed.
