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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HON. JUSTICE Y. M. HASSAN

DATE: 18TH JUNE, 2026.                                             

SUIT NO: NICN/IB/43/2022

BETWEEN

COSMOS OKOH ------------------------------------------------------ CLAIMANT

AND

UBERNESS NIGERIA LIMITED -------------------------------- DEFENDANT

REPRESENTATION

S.I.O. Ozolua for the Claimant.                                                                          

Prince Adekola Ajakaiye for the Defendant.

 

JUDGMENT

INTRODUCTION

1.         The Claimant instituted this suit via a General Form of Complaint, Statement of Facts and other originating processes dated and filed the 25th day of August, 2022 claiming against the Defendant as follows:

  1. AN ORDER directing the Defendant to pay for the treatment of the Claimant which they neglected in the accident which occurred in the course of his duty.
  2. AN ORDER of payment of One Hundred and Sixty-Eight Thousand, Six Hundred Naira (N168,600) as Severance Allowance for three (3) months to the Claimant which rendered him incapacitated without due consideration from the Defendant.
  3. AN ORDER of Five Million Naira (N5,000,000.00) as due compensation to the Claimant who suffered injury in the course of his duty. 
  4. AN ORDER of Five Million Naira (N5,000,000.00) as damages for the trauma the Claimant has gone through since the inception of the accident till date.
  5. Cost of this action.

2.         The Defendant upon being served with the originating processes, filed statement of defence dated and filed 4th day of December, 2024 pursuant to the Order of the court. In response, the Claimant filed a Reply to the Defendant’s Amended Statement of Defence dated 13th day of February, 2025 but filed on 24th day of February, 2025.

3.         After the close of pleadings, trial commenced on 29th October, 2024 and was concluded on 16th July, 2025. The Claimant called one witness and the Defendant called two witnesses.

CASE OF THE CLAIMANT

4.         The Claimant opened his case on 29th October, 2024 and testified as CW1 by adopting his statement on oath dated 25th August, 2022 as his evidence in chief. He tendered in evidence five (5) documents which were admitted and marked as Exhibits A to E respectively.

5.         Under cross examination, CW1 stated inter alia that he is still an employee of the Defendant, he has not resigned and his employment has not been terminated. That employer has been paying him monthly salary till date. That he has been treated in two hospitals and his employer has paid for medical bills in those hospitals. That the train at the upper part of the factory partially blocked the machine he was moving freely and when he discovered that, they stopped because he was not the only one moving the machine, they were four, he drove it and others guide. That he did not report hindrance of the train. That no any superior officer tell him to bend the machine.

6.         Testifying under re-examination, CW1 said that when they were moving the machine, no any superior officer on duty.

 

 

CASE FOR THE DEFENDANT

7.         The Defendant open its defence on 24th February, 2025 and called two witnesses, they adopted their statement on oath as their evidence in chief.

8.         MANOJ SAHADEVAN a subpoenaed witness, testified as DW1 adopted his statement on oath filed on 10th day of February, 2025 as his evidence in this case.

9.         DW1 stated under cross examination amongst other things that he was an employee of the Defendant. That he knows the Claimant in this suit. That in the Defendant’s company, he was an Operational Manager.

10.       ANDREW OKPOR, Human Resources Manager of the Defendant, testified as DW2. He adopted his statement on oath dated 4th day of December, 2024 as his evidence in chief and tendered 10 documents in evidence out of which one was objected but admitted provisionally and marked as Exhibit F. Other documents not objected were admitted and marked as Exhibits G to O respectively.

11.       Under cross examination, DW2 testified inter alia that he was employed by the Defendant on 8th January, 2024. That he was not an employee of the Defendant when the incident that resulted to this suit occurred. That the Claimant was an employee of Monikol and not the Defendant as at the time the incident happened. That the document to show that the Claimant is an employee of Monikol and not the Defendant is not available now. That Exhibit A is an offer of employment from Uberness Nig. Ltd. (Defendant) to Cosmos Okoh (Claimant). That he did not know whether Exhibit F was prepared by a legal practitioner and the Claimant is not signatory to Exhibit F. That they paid Monikol, who in turn paid the Claimant. That the size of the equipment the Claimant allegedly lifted is 560 kilogram. That such an equipment needs the lifting of an elevator or forklift.

 

FINAL WRITTEN ADDRESSES

12.       At the close of trial and pursuant to the direction by the court, learned Counsel filed their respective final written addresses.

13.       The Defendant’s final written address is dated 15th day of January, 2026 and filed same day. In it, learned Counsel to the Defendant, Prince Adekola Ajakaiye distilled a lone issue for determination which is whether the Claimant has placed sufficient materials and evidence in law and fact before the Honourable Court to establish that judgment should be awarded in his favour in the terms of the claims and prayers he placed before the court?

14.       In arguing the issue, Counsel stated that the Defendant but in fact has always paid for the necessary medical treatment of the Claimant. Counsel contended that the averment in the statement of defence were not controverted because there is no reply with accompanying witness statement on oath before this Honourable Court. Consequently, Counsel submitted that the averments in the statement of defence that have not been controverted are deemed admitted. Reference was made to the cases of THERESA v. UBA PLC (2022) LPELR-57811(CA); USMAN v. FIRST BANK & ORS (2019) LPELR-47086(CA).

15.       Submitting further, Counsel referred the court to paragraphs 16 to 18 of the statement of defence and paragraphs 17 to 18 of statement on oath of Andrew Okpor and stated that the Defendant did not abandoned the Claimant and was never deficient in seeing to and paying for his medical treatment. Reference was equally made to the testimony of CW1 under cross examination and Exhibits K, L, M1, M2, M3, M4 and N.

16.       In another argument, Counsel stated that the Claimant remains its employee on its payroll and has not resigned his employment and as such the Defendant cannot pay the amount of N168,600 (One Hundred and Sixty-Eight Thousand, Six Hundred Naira) claimed as “severance allowance for three (3) months to the Claimant.”

17.       The learned Counsel referred the court to Exhibit A which is the Offer of Employment dated 22nd July, 2019 issued to the Claimant by the Defendant and stated that it clearly shows the date of commencement of the employment of the Claimant by the Defendant. The industrial accident occurred in June, 2019. This shows that the Claimant was not an employee of the Defendant when the industrial accident occurred. 

18.       In another argument, Counsel referred the court to Section 11 of the Labour Act, Chapter L1, Laws of the Federation of Nigeria, paragraphs 11 and 12 of the witness statement on oath, paragraphs 9 and 10 of the statement of defence and Exhibit O and submitted that the Claimant has not taken any step to cause a cessation of his employment as an employee of the Defendant. Consequently, Counsel submitted again that it is trite that a court of law, by itself and without a claim for a declaration that a contract of employment has been ended for given reasons cannot bring to an end an ongoing contract of employment if neither the employer nor the employee has taken contractual steps to bring it to an end, or have sought a declaration of a court of law that a contract of employment has been determined. That a court cannot make a contract for parties before it.

To this extend, Counsel submitted that the court is not “Father Christmas” and cannot explicitly or implicitly grant what has not been requested for, a relief not sought, by a party in a lawsuit before it. He relied on the case of APATIRA & ORS v. LAGOS ISLAND LOCAL GOV'T COUNCIL & ORS (2006) LPELR-11710(CA).

19.       Learned Counsel therefore submitted that the Honourable Court should discountenance this clearly unjustifiable, baseless, unprovable, frivolous, incompetent and unproved claim for “severance allowance” and should not grant it. 

20.       Arguing the issue further, Counsel contended that the Defendant is not liable to pay N5,000,000.00 (Five Million Naira) as due compensation to the Claimant. Counsel referred the court to the testimony of DW1, Exhibits J, testimony of CW1 under cross examination and Exhibits K, L, M1, M2, M3, M4 and N and then submitted that the Claimant has not put forward before this Honorable Court the grounds and/or basis or specifics of claims of entitlement to an award of a compensation order pursuant to the stipulations of the Employees Compensation Act in his Statement of Fact and his Written Final Address. To that extend, Counsel urged the court not to grant the claim for compensation as it totally lacks legal basis and is a travesty of the Employee Compensation Act.

21.       It is the learned Counsel contention that the Defendant is not liable to pay N5,000,000.00 (Five Million Naira) as damages. He submitted that the claimant has not specified or identified in the claims in his Statement of Facts the kind damages it may be claiming. He contended that the Claimant has not adduced legal evidence of probative value for the establishment of an actionable wrong or injury in support of an award of damages. Reference was made to the case of EFFIONG v. ATA ISI SUPPLIES & SERVICES LTD. & ORS (2010) LPELR-4077(CA). To this extend, Counsel urged the court not to grant the claim as there exist no basis whatsoever to grant it, as the Defendant cannot be held liable for damages consequential to the negligent action of the Claimant.

22.       In another argument on the issue, Counsel stated that the Defendant is not liable to pay the cost of the action and submitted that the Honorable Court may not make an award of costs against the Defendant, as they have prayed that all the preceding claims of the Claimant may not be granted, and further urged that the lawsuit be dismissed. He cited the cases of IKEME & ANOR v. SULAYMAN & ORS (2022) LPELR-58258(CA); ACB LTD & ORS v. AJUGWO (2011) LPELR-3637(CA).

23.       Finally, learned Defendant’s Counsel urged the Honorable Court to uphold the entirety of their arguments and submissions, decline to grant any of the claims of the Claimant, and dismiss this lawsuit. 

24.       The Final Written Address of the Claimant is dated 20th day of April, 2026 and filed same day. In the said final written address, learned Counsel to the Claimant, S.I.O. Ozolua Esq., formulated two issues for determination to wit:

  1. Whether with consideration of fact and materials placed before this Honourable Court by the parties to this suit, the Claimant has sufficiently and or successfully proven his claims to be entitled to the grant sought thereof.
  2. Whether or not the Defendant has successfully defended this suit to warrant the dismissal of this suit in its entirety.

25.       Arguing the issues, Counsel submitted on issue one that in civil suit such as this instant one, the Claimant must succeed on the strength of his own case regardless of the weakness (if any) of the Defendant. The burden of proof lies on he who asserts. He referred the court to the cases of NWAJA v. REGISTERED TRUSTEE RECREATION CLUB (2004) FWLR (pt.190) 1360 ITAM v. ITAM (2001) LPELR-54121(CA); APP v. INEC (2021) LPELR-53529(CA).

26.       Counsel referred the court to Exhibits A to D as well as evidence of the Claimant and contended that during Cross-examination, the onus placed on the Claimant to prove his case was not shaken off by the Defendant’s Counsel. The Claimant maintained that he was employed by the Defendant and he is not an outsource staff to the Defendant. 

27.       Learned Counsel further contended that it is pertinent to note that the contents of these Exhibits from the Claimant were unassailable at the trial. The Defendant's counsel did not at any time during the trial proceedings asked any question that impugned on their veracity. Consequently, Counsel submitted that the law is strict that facts which are not challenged should be treated as admitted and true. As such, he urged this Honourable Court to attach due weight to the documentary Exhibits tendered by the Claimant and act upon same as true. Reference was made to the case of A.A. SALAUDEEN v. M.T. MAMMAN (2000) 14 NWLR (pt.686) 63 at ratio 4.

28.       Arguing issue one further, Counsel referred the court to Exhibit A and testimony of DW1 under cross examination and submitted that from the evidence before the court that as at the time that incident occurred, the Claimant is a staff of the Defendant, the incident happened at the premises of the Defendant which the Claimant needs to be compensated, He urged the court to so hold. Reference was made to Section 3 Sub-section (182) of the Workmen Compensation Act, 2004 and Section 7 Sub-sections 1, 2, and 3 of Employees' Compensation Act, 2010.

29.       In another argument, Counsel stated that the Defendant who pleaded in its statement of defense that the Claimant willfully and carelessly engaged in an unsafe and reckless manner and out of negligence moved the heavy equipment in the premises of the Defendant which now rendered him incapacitated failed to prove this allegation by not calling witness who were at the scene of the accident and are still in the employment of the Defendant and which it listed on its list of witnesses in this case (Mayame Ogobor Joseph and Imogan Friday). Consequently, counsel submitted that this amounts to withholding of evidence. He referred the court to Section 167(d) of Evidence Act, 2011 and the cases of JOHN & ORS v. AKHUAMHEMKHUM & ORS (2021) LPELR-54138(CA); BAKARE v. OGUNDIPE & ORS (2020) LPELR-49571(SC).

30.       To this extend, Counsel urged this Honourable Court to so hold that the accident which resulted to this instant suit and the Claimant disability was due to the failure of the Defendant to put safety measures in place in its premises. Reliance was placed on the case of MR. FRANK NNAMDI v. LEOPLAST INDUSTRIES LTD (2018).

31.       Submitting again on issue one, Counsel stated that the Defendant not withstanding it first attempt in giving first aid treatment upon the injury sustained in its premises while carrying out his lawful duty, the Defendant later abandoned the Claimant when the hospitalization became prolonged and the Claimant suffered gravely upon the abandonment, the Claimant became paralyzed till date, he urged the court to so hold. 

32.       In his final submission on issue one, Counsel stated that the Defendant is bound to pay for the treatment of injury suffer by the Claimant on the instruction of the officers of the Defendant in the premises and rightly in the cause of carrying out his duty and the Defendant is liable even so the injury herein occurred on a public holiday wherein the Defendant through its officers requested for the Claimant to report for duty and the Claimant in obedient to that lawful instruction, carried out his duty one of which resulted to the injury of the Claimant, the Defendant is liable in totality. He urged the court to so hold.

33.       On issue two, Counsel stated that the Defendant has not successfully defended this suit to warrant its dismissal by Honourable Court.

34.       The learned Counsel contended that the issue raised by the Defendant in paragraph 2 of the Defendant’s Final Written Address is misconceived, the Rules of this Honourable Court makes provisions for a Claimant to file a reply to statement of defense and same is filed on the 24th of February, 2025 and same form part of the pleadings in this suit. Consequently, counsel submitted that the document of Reply to Defendant’s Amended Statement of Defence dated 24th February, 2025 is relevant to the facts of this case and forms part of the pleadings. He urged this Honorable Court to so hold. He relied on Order 33 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure Rules) 2017.

35.       Again, Counsel submitted that it is a ploy and a calculated attempt by the Defendant to use technicalities over substantial justice on the issue raised by the Defendant pleadings before the Honourable Court and a consideration of the status of the Reply of the Claimant (with witness statement on oaths. He referred the court to the cases of COLITO NIGERIA LIMITED v. HONOURABLE JUSTICE TITI DAIBU (2010) 2 NWLR (pt.1178); JOSIAH OLUWOLE FRANCIS v. CITEC INTERNATIONAL ESTATE LIMITED (2010) NWLR (pt.1219) Pg. 252 para. 14; AJEWOLE v. ADETIMO (2010) NWLR pt.1178; AGUNBIADE v. ADETIMO (2010) 2 NWLR (pt.811) 1330 CA; OKAFOR v. NWEKE (2007) 10 NWLR (pt.1043) 521; HONOURABLE JUSTICE TITUS ADEWUYI OYEYEMI (RTD) & ORS v. HONOURABLE TIMOTHY OWOEYE & ORS (2020) LPELR-58021(SC).

36.       Arguing issue two further, Counsel stated that the arguments and submissions of the Defendant in paragraph (D)(i)(a) is misconceived, that the Claimant did not deny the fact that First Aid treatment but the issued is that he was abandoned at the Hospital without full payment for the bills which has now rendered the Claimant incapacitated. 

37.       Furthermore, Counsel argued and stated that the Claimant maintained that he is an Employee of the Defendant and this assertion was unshaken with the document of Exit A and during cross examination of the Defendant witness (DW2). The DW2 could not proof to the court that the Claimant was not an employee of the Defendant, the Claimant still maintained that the incident happened at the premises of the Defendant while carrying out his lawful duty on the instruction of the (DW1) and as such the Defendant is liable for damages. 

38.       In another argument on issue two, Counsel contended and maintained that the Claimant is entitled to “severance allowance”. The Claimant suffered severe hardship as a result of the injury he sustained while carrying out his lawful duty as instructed or directed, which has now rendered him incapacitated. Reference was made to the cases of MR. TAUNA SAMSON v. DAAR COMMUNICATION PLC. (2025) NICN/35/2020; GIDEON AMAH v. SAMUEL TONRE & 2 ORS (2024) NICN/ABJ/276/2022. 

39.       In conclusion, learned Claimant’s Counsel urged the court to find merit in the Claimant’s case and grant the reliefs sought by the Claimant.

40.       On the other hand, the Defendant filed a reply on points of law to Claimant’s final written address. The said reply on points of law is dated and filed on 27th April, 2026.

COURT’S DECISION

41.       I took my time and carefully perused the General Form of Complaint, the Statement of Facts, the Statement of Defence and other accompanied processes. I have evaluated the entire evidence adduced by the parties at the trial both oral and documentary and I have listened to the testimonies of the witnesses and watched their demeanor. I have gone through the final written addresses filed by the Counsel and the reply on points of law and I also considered their oral argument while adopting the said final written addresses. Having done all these, it is my humble view that the issues formulated by the Counsel on both sides in their respective final written addresses can be summed up into one which is whether the Claimant has proved his case as required by law to be entitled to the reliefs sought. 

42.       Before I consider the issue for determination raised above, let me first and foremost resolve some preliminary issues.

43.       It is on record that at the proceeding of 24th day of February, 2025 while DW2 was led in chief and sought to tender some documents in evidence, the Claimant’s Counsel objected to one of the documents titled “Contract for the Provision of Skilled/Unskilled Labour Service Between Monikol Nigeria Limited and Uberness Nigeria Limited” which was provisionally admitted and marked as Exhibit F. This Honourable Court granted the Claimant’s Counsel leave to address the court on the grounds of his objection at address stage and for the Defendant’s Counsel to respond accordingly.

44.       The arguments of the Claimant’s Counsel on the grounds of his objection are contained in their final written address at paragraphs 4.19 to 4.23 wherein he submitted amongst other things that the document sought to be tendered which was provisionally admitted is secondary document (photocopy) without laying proper foundation of the whereabouts of the original as required by Evidence Act, Section 85-90. Consequently, Counsel urged the court to hold that the Defendant’s document tendered failing to lay proper foundation renders the document inadmissible. He referred the court to the cases of JACOB v. A.G. AKWA-IBOM STATE (2002) 8 FWLR (pt. 86) 57; FEDERAL REPUBLIC OF NIGERIA v. A.V.M ALKALI, MOHAMMED MANU (2020) 15 NWLR (pt. 1747) 354; ALHAJI ISIYAKU YAKUBU ENTERPRISES LIMITED v. MR. AUSTINE TERU & ORS (2025); JUSTUS NWAIZOKU & 5 ORS v. FRANCIS ONORWODI & 2 ORS; IJEOMA NWANYA v. ENERGIA LIMITED (2021); NATIONAL INDUSTRIAL COURT OF NIGERIA (NICN); SULEIMAN v. MOHAMMED (2021) LPELR-56088(CA); RASAQ DUROSIMI v. ADENIYI & ANOR (2017) JELR-37759(CA).

45.       On the other hand, I have perused the Defendant’s final written address together with the Reply on Points of law, to my surprise, the Defendant’s Counsel did not respond to the objection raised by the Claimant’s Counsel. In other words, the Defendant’s Counsel did not canvass any argument in urging the court to admit the said document. This means that the Defendant did not join issues with the Claimant on the objection raised in respect of admissibility of the said document. This court therefore is to consider only the argument of the Claimant’s Counsel to see whether the said document is admissible or not.

46.       As pointed out earlier, the basis of the Claimant’s Counsel objection is that the said document is a photocopy and proper foundation as required by law was not lay before same was sought to be tendered. In this respect, I refer to the case of AKPAN v. CONSULTS (NIG.) LTD (2025) LPELR-81652 Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO JCA at page 31-31, paras. B-E where it was held thus:

“The settled principle of law is that photocopies of documents are inadmissible without a proper foundation being laid to enable their admission. The foundation is to offer an explanation as to the existence or non-existence of the original or as to why it was impracticable to tender the originals…” 

            See also the cases of IYAGBA v. CLEMENT & ORS (2025) LPELR-81824(CA) UNION BANK v. NURAFF BUREAU DE CHANGE & ANOR (2024) LPELR-62101(CA).

47.       In the instant case therefore, I have taken a look at the said documents sought to be tendered and which was provisionally admitted and marked as Exhibit F, it is indeed a photocopy and no foundation was laid before tendering same. In the light of the authorities cited above, it is my considered opinion that the said document been a photocopy and no foundation laid explaining the whereabouts of the original, is inadmissible and the objection of the Claimant’s Counsel is sustained. Consequently, the said document titled “Contract for the Provision of Skilled/Unskilled Labour Service Between Monikol Nigeria Limited and Uberness Nigeria Limited” provisionally admitted and marked as Exhibit F is hereby rejected and expunge from the record of this court. I so hold.

48.       Having resolved the objection raised on admissibility of document sought to be tendered, I will now consider the merit of the Claimant’s case by resolving the issue for determination raised above, one way or the other. The issue for determination is whether the Claimant has proved his case as required by law to be entitled to the reliefs sought.

49.       It is the case of the Claimant as revealed by the pleadings and evidence led briefly that he was employed by the Defendant as a Senior Machine Operator on the 23rd of July, 2019. That he was initially working with Sumako Company at Apapa, Lagos State as a machine operator since 2015 before he was called upon by one MANUG & KUMA (foreigners) to resume the Ibadan factory of the Defendant but the above named persons are presently no longer working with the Defendant. That during the celebration of Id-el-Kabir sometimes in June, 2019 when factory workers were on holiday, he received a call from his boss MANUG that there is machine coming in from Apapa Wharf, Lagos State to Ibadan Factory of the Defendant. That he was instructed by his said boss that he should mobilize four (4) other boys to come to work and he should put a phone call through to the fork-lifter operator to move a certain machine from its position to create room (space) for the incoming machine. 

That the following day, the said fork-lifter operator did not come to work and also the key to the fork-lifter was not available, the said MR. MANUG instructed them to do it manually by using pallet truck to pallet the machine by shifting it to another position. That in the process of moving the machine, the machine shifted and lost balance and fell on the Claimant's back rendering him incapacitated. That he was immediately taken to University Teaching Hospital (UCH), Ibadan and he was later transferred to a private Hospital (Bamby Hospital, Okobo) at Ibadan where surgery operation was carried out on him and the doctor told the representative of the Defendant that what he now required is therapy everyday and that he need not to go anywhere. That the said representative of the Defendant asked the doctor to discharge the Claimant to enable him be undergoing the therapy at home. That he was abandoned at home by the Defendant for a long period of time without any further treatment, and that one Kingsley a supervisor at the office of the Defendant informed the Claimant through his friends at the Defendant's Company that he knows somewhere a Trado-Medical Hospital who can treat the Claimant. 

That upon the abandonment, he caused his Solicitor, one Anthony Akpan to write the Defendant. Attached herewith is a copy of the letter marked as Exhibit C04. That he was then taken to the said Trado-Medical Hospital at Ibadan, treatment was administered to him for a period of six (6) months but thereafter the hospital abandoned him on the grounds that the money sent by the Defendant for his treatment has finished. That he called the H.R (Human Resource) of the Defendant who promised him he will talk to the manager but till date, same did not respond to his call as he has been abandoned there at the Hospital. That the Defendant has now abandoned, neglected and left him to his own fate as he is still suffering from the injury he incurred while carrying out his lawful duty in the premises of the Defendant. 

            In other words, the Claimant’s case is principally centred on the point that he was involved in an industrial accident at the premises of the Defendant while carrying out his lawful duty and the Defendant has now abandoned him and is still suffering from the injury sustained.

50.       The law remains trite that the Claimant in an action continues to bear the burden of proof of the allegations he levies. For it is that he who asserts must prove with credible and admissible evidence. This position of law was encapsulated in Section 131(1) of the Evidence Act, 2011 which provides thus:

“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.”

See also the case of DEMATIC (NIG) LTD v. UTUK & ANOR (2022) LPELR-56878 where the Supreme Court per ADAMU JAURO, J.S.C. at pages 35-36, paras. B-D held thus: 

“The law is settled that he who asserts a fact must prove the existence of that fact, otherwise he would not be entitled to the judgment of the Court. The burden of proof lies on the person, who would fail if no evidence at all were given on either side...” 

See also the following cases OKEKE v. OKEKE (2019) NWLR (pt. 1701) 288; MUSTAPHA v. ZARMA & ORS (2018) LPELR-46326(CA); NSEFIK v. MUNA (2007) 10 NWLR (pt. 10) 502. 

51.       At the trial, the Claimant in trying to discharge the burden of proof, testified for himself as CW1, adopted his statement on oath dated 25th day of August, 2022 as his evidence in chief and tendered in evidence documents which were admitted and marked as Exhibits A-E respectively.

52.       Let me take the Claimant’s reliefs before the court one after the other, to see whether he has proved his entitlement to same.

53.       The first relief is for an Order directing the Defendant to pay for the treatment of the Claimant which they neglected in the accident which occurred in the course of his duty.

54.       From the evidence of the Claimant, it is apparent that there was an accident. For clarity and ease of reference, let me refer to the depositions of the Claimant on oath particularly paragraph 10 which reads thus:

“That in the process of moving the machine, the machine shifted and lost its balance and fell on my back rendering me incapacitated.”

            The Claimant tendered Exhibit B, which is pictures showing the injury sustained.

55.       Let me note that the depositions of the Claimant in paragraphs 12, 13, 14, and 16 of his statement on oath is to the effect inter alia that he was taken to two different hospital by the Defendant for treatment i.e. University Teaching Hospital (UCH) Ibadan and Trado-Medical Hospital in Ibadan.

56.       Nevertheless, the Claimant has deposed in paragraph 20 of his deposition on oath as follows:

“That the Defendant has now abandoned, neglected and left to my own fate as I am still suffering from the injury I incurred while carrying out my lawful duty in the premises of the Defendant.”

57.       However, the Defendant in defence of this suit, called two witnesses, one of which was a subpoenaed witness by name Manoj Sahadevan who adopted his statement on oath and Mr. Okor Andrew, Human Resources Manager of the Defendant, who testified as DW2, adopted his statement on oath as his evidence in chief and tendered 10 documents in evidence out of which one was objected and ruling delivered in the course of this judgment and the said objected document rejected and expunged from the records of the court. Other documents were admitted and marked as Exhibit G to O respectively. 

From the evidence of the Defendant’s witnesses most especially that of DW2, is that the Claimant was not abandoned. Let me for clarity and ease of reference refer to the depositions of DW2 on oath particularly paragraphs 18(v), (vi), (vii), (viii), and (x) which read thus:

“18. The Defendant avers in direct response to paragraphs 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Statement of Fact that:

(v). It never abandoned the Claimant and was at all material times responsible for the payments of all the medical bills of the Claimant, which it always paid promptly, while it continued to pay the Claimant’s monthly salary after granting him a letter of employment on compassionate and humanitarian grounds. 

(vi). Upon the occurrence of the accident on the 4th June, 2019, the Defendant organized and paid for the medical evacuation of the Claimant by ambulance to the University College Hospital (UCH), Ibadan, for emergency and comprehensive treatment without delay and recourse to the then employer of the Defendant; Monikol Nigeria Limited as humanitarian endeavours. The Defendant paid all the medical bills incurred on the treatment of the Claimant at the UCH and elsewhere. The Defendant pleads:

a. The Medical X-Ray Investigation Report dated 04/06/19.

b. The Radiology Report dated 04/06/2019 prepared by Total Health Care Diagnostics Limited.

c. The receipt issued by Total Health Care Diagnostics Limited dated 4/6/2019 in the sum of Forty Thousand, Five Hundred Naira (N40,500.00) paid by the Defendant’s staff in respect of the said radiology report, and 

d. A receipt/deposit slip in the sum of Seventy Thousand Naira (N70,000.00) only issued by University College Hospital, Ibadan consequent to the payment of the said sum by the Defendant in respect of the admission and treatment of the Claimant, all of which it shall found and rely on at the trial of this matter.

(vii). When the attention being given to the Claimant at UCH seemed less than satisfactory, the Claimant was moved to Banby Specialist Hospital on 10th June, 2019, where a surgery operation was subsequently undertaken on him. 

(viii). The Defendant paid all the medical bills incurred on the treatment of the Claimant at Banby Specialist Hospital. The Defendant pleads:

c. the Medical Bill dated 26/6/2019 issued by Banby Specialist Hospital. The Defendant shall find and rely on it; the original of this document, at the trial of this matter, and 

d. the receipt dated 26/6/2019 and issued by Banby Specialist Hospital to the Claimant consequent to the payment of the sum of Two Million, Eight Hundred and Twenty Three Thousand, Seven Hundred and Sixty Two Naira (N2,823,762.00) by the Defendant to that hospital for the surgery and other medical bills to be incurred by the Defendant in the care and treatment of the Claimant/Applicant. Banby Specialist Hospital handed over the original of the receipt to the Defendant. The Defendant shall find and rely on it; the original of the pleaded receipt at the trial of this matter. 

(x). The immediate foregoing notwithstanding, the Defendant continue to pay the Claimant’s monthly salary.”

            The Defendant tendered in evidence Exhibits M1, M2, M3, AND N which are receipt and medical bills evidencing payment for treatment of the Claimant.

58.       Moreso, the Claimant testified under cross examination by the Defendant’s Counsel inter alia that:

“Q - Are you still an employee of the Defendant.

A - Yes.

Q - Have you resigned your employment from your employer.

A - No.

Q - Has the employer been paying your monthly salary till date.

A - Yes.

Q - Has the employer ever paid your medical bill.

A - Yes.

Q - In how many hospitals have you been treated.

A - Two hospitals.

Q - Did your employer paid your medical bills in those two places.

A - Yes.”

59.       In the light of the foregoing, let me pause here and refer to the case of ISRAEL O. AINA v. UNITED BANK FOR AFRICA & ANOR (1997) 4 NWLR (pt. 498) 181 where it was held thus: 

“In all civil cases, the onus of proof usually lies with the plaintiff. It is only after he has discharged this initial onus that it shifts on the Defendant.”

60.       As it stands now, from the evidence adduced by both parties, it is my considered opinion that the onus of proof is still on the Claimant to prove to this Honourable Court satisfactorily with credible and admissible evidence that he was abandoned and neglected by the Defendant to his fate to suffer from injury sustained in the accident without medical treatment. It is after he prove that, then, the burden will shift to the Defendant. In this respect, see case of MUSA & ANOR v. ABDULLAHI & ORS (2008) LPELR-4562 Per OYEBISI FOLAYEMI OMOLEYE, J.C.A at pages 16-17, paras. F-B, where it was held thus:

“The learned counsel for the Appellants labouriously canvassed about the shifting nature of the burden of proof in civil cases. The law that is trite in this regard is simply that where in a case the plaintiff discharges the burden of proof on him, the burden shifts to the defendant to rebut the plaintiff’s case.”

61.       It should be noted that from the record of the court, the Claimant filed a reply to the Defendant’s amended statement of defence together with further written statement on oath of the Claimant on 24th day of February, 2025. However, the Claimant did not adopt his further written statement on oath at the trial of this suit. Therefore, the implication of this is as stated in the case of ADAKA v. OMESSAH (2023) LPELR-60857 Per AMINA AUDI WAMBAI, J.C.A at pages 35-36, paras. D-B where Court of Appeal held thus:

“On the status of the witness statement on oath, it is trite that a witness statement on Oath is the evidence in Chief of a witness in written form deposed or sworn before a Commissioner for Oaths. The evidence on Oath transforms into evidence in chief only upon adoption by the deponent (witness). It can neither be tendered as evidence nor regarded as evidence without adoption. It cannot form part of the evidence adduced at trial unless the deponent testifies in Court as a witness and adopts the statement as part of his oral testimony. Therefore, where as in the instant case the witness fails to adopt the witness statement on Oath, same will be deemed as abandoned and the deposition therein becomes useless to the deponent.”

            See also the cases of SANI v. ISIYAKU RABIU & SONS LTD & ANOR (2022) LPELR-57479(CA); UNION BANK v. KOLEOSO (2019) LPELR-47970(CA).

62.       Therefore, the Claimant having not adopt his further written statement on oath and relying on the authorities cited above, it is clear that same is deemed abandoned. To that extend, the Claimant’s pleaded facts in his reply, having no evidence to back them up, goes to no issue. See the case of RAPHAEL v. UBAMACCO VENTURES LTD (2024) LPELR-79943 Per ABUBAKAR SADIQ UMAR, J.S.C, page 42-42, paras. D-E where the Supreme Court held thus:

“It is trite that mere averments without evidence in proof of pleaded facts go to no issue.”          

See also the case DANIEL v. FBN (2025) LPELR-81363(CA).

63.       At this juncture, it should be borne in mind that the Reply filed by the Claimant to the Defendant’s Amended Statement of Defence is of no moment for the reasons given above. Consequently, the averments in the Defendant’s statement of defence particularly those of paragraphs 16(i – x), 17 and 18 which raised new issue to the fact that the Defendant has not abandoned the Claimant and that the Defendant equally paid all the medical bills of the Claimant remained unchallenged and admitted having no reply to them in the eyes of law. On that note, I refer again to the case of IGWENADU v. MINISTER OF FCT (2025) 7 NWLR (pt. 1988) 145 where it was held thus: 

“There is no general proposition of law that failure to file a reply to rebut an averment in a Statement of Defence is tantamount to an admission. However, where a Defendant by his pleadings sets out a case, that cannot be met by mere denial and which has not been taken care of by the averments in the Statement of Claim, it is a matter of utmost prudence, if not necessary, to file a reply to the Statement of Defence. It is not in every case that a reply is necessary. However, a party who fails to file a reply runs the risk of being deemed to have admitted averments contained in the Statement of Defence not covered by the Statement of Claim. Thus, where a plaintiff fails to file a reply an averment in a Statement of Defence that has not been taken care of by averments in his Statement of Claim, he would be deemed to have admitted the averments in the Statement of Defence...” 

Similarly, the Supreme Court equally held in the case of USENI v. ATTA (2023) 8 NWLR (pt. 1887) 519 at 555, para. G where JAURO, J.S.C. delivering the leading judgment held thus: 

“The well-known general rule is that an averment that is not responded to or controverted is deemed admitted.” 

See also the cases of UBANI-UKOMA v. SEVEN-UP BOTTLING CO. PLC. (2023) 2 NWLR (pt. 1867) 117(SC); PHILLIPS v. EBA ODIAN COMMERCIAL & INDUSTRIAL COMPANY LIMITED (2012) ALL FWLR (pt. 650) 1254 at 1270; BINGO v. GOVERNOR, ADAMAWA STATE (2012) ALL FWLR (pt. 633) 1908 at 1939; IWUOHA v. NIPOST LTD (2003) FWLR (pt. 160) 1535 at 1559.

64.       Before I conclude on the Claimant’s first relief, let me say quickly that the Claimant did not lead any evidence before the court of how much he incurred in treatment that he wants the court to direct the Defendant to pay and in which hospital. No medical bills and/or receipts of payment tendered before the court by the Claimant. The submission of the Claimant’s Counsel in their final written address at paragraph 4.29 inter alia that the Claimant was given First Aid treatment but was abandoned at the hospital without full payment for the bills which has now rendered the Claimant incapacitated, is without substance as no evidence before the court to substantiate it. No credible evidence led before the court by the Claimant to prove that he was abandoned at the hospital by the Defendant, having admitted under cross examination that the Defendant paid his medical bills. In the circumstance therefore, this first relief of the Claimant will not see the light of the day for lack of credible evidence. In other words, the Claimant has failed to prove his entitlement to the first relief sought. I so hold.

65.       That takes me to the second relief, which is an Order of payment of N168,600 (One Hundred and Sixty Eight Thousand, Six Hundred Naira) as severance allowance for three (3) months to the Claimant which rendered him incapacitated without due consideration. Let me say frankly that there is no any averment in the Claimant’s pleading that relates to this relief. No any evidence at the trial led by the Claimant to prove this relief. In fact, Exhibit A tendered by the Claimant which is offer of employment, does not capture this claim for severance allowance. To this extend, I refer to the case of ADABARA v. UNITY BANK (2025) LPELR-80002 Per MUSLIM SULE HASSAN, JSC at pages 30-31, paras. F-A where it was held thus:

“The general rule is that a party who asserts must prove his assertion. In labour related matters, an employee can only claim if an entitlement is shown. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed upon between the contracting parties or the conditions of service governing the relationship of the employer and his/her employee”

66.       Furthermore, Claimant stated under cross examination by the Defendant’s Counsel amongst other things that:

 “Q - Are you still an employee of the Defendant.

A - Yes.

Q - Have you resigned your employment from your employer.

A - No.

Q - Has the employer been paying your monthly salary till date.

A - Yes.”

67.       Consequently and in view of the above testimony of the Claimant under cross examination reproduced above, it is my considered opinion that the Claimant has no basis claiming severance allowance when he is still an employee of the Defendant. To this extend, I hold very strongly that the Claimant has failed to prove his entitlement for this second relief sought. This second relief like the first one, will equally not fly for lack of evidence. I so hold.

68.       I move to the third relief which is an Order of N5,000,000.00 (Five Million Naira) as due compensation to the Claimant who suffered injury in the course of his duty.

69.       From the totality of evidence before the court, there is no dispute that the Claimant was involved in accident in the course of his duty at the Defendant’s factory. Also, from the state of pleadings, Claimant is an employee of the Defendant. I refer to Exhibit A and paragraphs 8 and 10 of the Defendant’s statement of defence.

70.       However, the Claimant did not lead any evidence to prove to this court on what he based this claim for compensation and how he arrived at the figure claimed as compensation. No any documentary evidence capturing this relief was tendered by the Claimant at the trial of this suit.

71.       Moreso, the Claimant’s Counsel in their final written address at paragraph 4.9 referred the court to Section 3(1) and (2) of the Workmen Compensation Act, 2004 and Section 7(1), (2) and (3) of Employees’ Compensation Act, 2010. This simply means that the Claimant based his relief for Compensation on these laws. Let me note as rightly submitted by the Defendant’s Counsel in their Reply on Point of law that Workmen Compensation Act, 2004 has been repealed by the enactment and operation of the Employees’ Compensation Act. Therefore, the Claimant’s Counsel reference to same, is to say the least, unfortunate because a lawyer ought to know the right laws to rely on in prosecuting his Client’s case. I say no more on this.

72.       Coming back to the Employees’ Compensation Act, 2010. As stated earlier, from the submission of the Claimant’s Counsel in their final written address, the Claimant’s relief three for compensation to the tune on N5,000,000.00 (Five Million Naira) for the injury suffered in the course of his duty is based on Employees’ Compensation Act, 2010. Claimant’s Counsel referred the Court to Section 7(1), (2) and (3) of Employees’ Compensation Act, 2010. For clarity and ease of reference, let me reproduce the Sections hereunder.

            Section 7 reads thus:

7.(1) Any employee, whether or not in a workplace, who suffers any disabling injury arising out of or in the course of employment shall be entitled to payment of compensation in accordance with Part IV of this Act. 

(2) An employee is entitled to payment of compensation with respect to any accident sustained while on the way between the place of work and

(a) the employee’s principal or secondary residence; 

(b) the place where the employee usually takes meals; or 

(c) the place where he usually receives remuneration, provided that the employer has prior notification of such place. 

(3) Where an injury disables an employee from earning full remuneration at the workplace, compensation shall be payable pursuant to this Act from the first working day following the day of the injury, except that only a health care benefit shall be payable in respect of the day of the injury.”

73.       However, by Sections 56(1) and 57 of the Employees’ Compensation Act, 2010 which I will also reproduce hereunder for clarity and ease of reference.

            Section 56(1) provides thus:

“There is established the Employees’ Compensation Fund (in this Act referred to as “the Fund”) into which shall be credited all moneys, funds or contributions by employers for adequate compensation to employees or their dependants for any death, injury, disability or disease arising out of or in the course of employment.”

            

 

Section 57 provides thus:

“Subject to this Act, the Fund established under Section 56 of this Act shall be managed by the Nigeria Social Insurance Trust Fund Management Board established under the Nigeria Social Insurance Trust Fund Act. (1993 No. 73) (in this Act referred to as “the Board”).”

A community readings of the Sections 56(1) and 57 of ECA, 2010 reproduces above shows that it is only the Nigeria Social Insurance Trust Fund Management Board that is empowered to pay compensation under the Act. Therefore, in the instant case, the Claimant claiming compensation from the Defendant is inappropriate and not in accordance with the contemplation of the Employees’ Compensation Act, 2010. In other words, the Claimant channeled its demand for compensation to a wrong place. I so hold.

74.       In the circumstances and without further ado, this relief three for compensation has failed for the reason stated above. I so hold.

75.       On the fourth and fifth reliefs which are for damages and cost of this action, I think I do not need to dissipate my energy any longer on these reliefs because the survival of these reliefs is dependent on Reliefs 1, 2, and 3 above. The said Reliefs 1, 2, and 3 having failed, similar fate awaits reliefs 4 and 5 as well.

76.       To this end and in the final analysis, I resolved the issue for determination in favour of the Defendant and against the Claimant and hold very strongly that the Claimant has failed to prove his case as required by law to be entitled to the reliefs sought.

77.       Before I finally drop my pen, let me say that I have seen the Claimant, I really sympathize with the state of his health but there is nothing I can do because sympathy and law do not meet. Court relies on evidence presented before it in deciding cases, not on sympathy. In this respect, I refer to the case of YUNUSA & ANOR v. D.G. SSS & ORS (2025) LPELR-81897 Per ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A at pages 57-58, paras. E-C where Court of Appeal held thus:

“Justice is not sentiment, it is the rigorous application of law to evidence. In this matter, the Appellants came seeking remedy for what they believed to be a profound wrong. Their pursuit was not in vain, for it brought the matter to the scrutiny of law, and in so doing, affirmed the role of the Court as a forum of truth and accountability. But intention cannot replace proof, and as Cicero aptly noted, “silent evidence is no evidence.” In this case, the silence is not in absence of voice, but in the lack of verifiable, coherent facts linking the Respondents to the alleged unlawful act. A Courtroom is not a chamber of sympathy, but a crucible in which truth must endure the fire of legal scrutiny. This Court commends the Appellants for their courage in approaching the Bench. Yet, without credible, consistent, and corroborated proof, their claim must fall.”

78.       On the whole and for avoidance of doubt, I hereby dismissed the Claimant’s case in its entirety for lack of evidence.

79.       No Order as to cost.

80.       Judgment is entered accordingly.

 

 

 

 

_____________________________

Hon. Justice Y. M. Hassan

Presiding Judge.