NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
5TH DAY OF SEPTEMBER, 2022 SUIT NO. NICN/LA/225/2019
BETWEEN:-
MR. EMMANUEL ESHEBRINAMA - CLAIMANT
AND
GOD IS GOOD MOTORS - DEFENDANT
REPRESENTATION:
Kilanko Olalekan for the Claimant
N. O. Balogun for the Defendant.
JUDGMENT
The Claimant commenced this suit by way of complaint and other accompanying processes filed on 9th May, 2019 and asked for the following reliefs as contained in the Amended Statement of facts against the Defendant;
"1. An order of court ordering the defendant to take the Claimant abroad for treatment of his sight.
2. Compensation of N25,000,000.00 for the loss of sight by the Claimant while on duty for the Defendant.
3. General damages of N1,000,000.
4. Cost of N100,000.00 for being the cost of this action."
The Defendant upon being served with the Claimant's initiating processes filed its Memorandum of appearance on 4/7/2019 but filed its statement of defence on 23/8/2019 via leave of court granted on 8/10/2019. The Defendant also filed a Notice of Preliminary Objection which was struck out at the instance of the Defendant.
CASE OF THE CLAIMANT
From the Amended Statement of Facts filed by the Claimant, he was engaged as a driver by the Defendant company and worked for seven (7) years. That while working with the Defendant, there was no Insurance policy taken by the Defendant regarding his life and job risk. That on 24/1/2019 while the Claimant was on official assignment to discharge passengers on board the Defendant’s vehicle with registration number 439VN from Lagos to Port-Harcourt, he was attacked by Armed robbers who shot at him as a result of which he lost his sight completely. That the Claimant was taken to Port-Harcourt Teaching Hospital by the passengers on board with the assistance of some policemen on patrol, however his sight could not be restored both at the Teaching Hospital and Eye foundation Lagos where he was transferred at the request of the Defendant. It was stated by the Claimant that the Defendant only paid him N40,000 from January 2019 to March 2019.
CASE OF THE DEFENDANT
It is the defence of the Defendant that the Claimant was engaged as one of its drivers to drive its buses across the Country. That they were engaged under a contract for service as professionals to render service to the Defendant as Independent contractors but not as employees of the Defendant hence they were not issued any letter of employment.
It was stated by the Defendant that the reported Armed Robbery shooting that led to the loss of the Claimant's sight was not an act of the Defendant or any if its agents but that of a 3rd party. It was also stated by the Defendant that the loss of the Claimant's sight was not directly caused by any accident involving any equipment of the Defendant.
According to the Defendant, it is not obliged to provide the Claimant with any Life Insurance cover. That the Defendant took the Claimant to Eye Foundation Hospital after he was discharged from Port Harcourt Teaching Hospital to enable the Claimant benefit from the Heath Insurance available in the Defendant Company.
It was further stated by the Defendant that it is not obliged to pay the Claimant any compensation beyond the fees due to him as an independent contractor.
TRIAL
Trial in this case commenced on 22nd June, 2021 where the Claimant testified as CW1 by adopting his Amended Statement on Oath dated 9th March, 2020 and tendered the following documents as exhibits;
“1. Statement of Account-Exhibit EE 1-.
2. Medical Report from Port-Harcourt Teaching Hospital-Exhibit EE 2(a-d)
3. Claimant's pictures-Exhibit EE 3- (a-b).
4. Solicitors letter dated 21/2/2019-Exhibit EE 4.
5. Letter written by the wife of the Claimant dated 4th March, 2019-Exhibit EE 5.
6. Police Report dated 8/7/2019-Exhibit EE 6.
7. Claimant's Identity card-Exhibit EE 7.
CW1 was cross examined by the Learned Counsel for the Defendant and as there was no re-examination, the CW1 was discharged and the case of the Claimant was closed.
Defendant in its defence called one Mr. Paul Osuigwe as DW1. He adopted his Statement on Oath dated 23rd August, 2019 and tendered Health Insurance Policy and Table of fees for the Claimant as Exhibits GGM1 and 2 respectively.
DW1 was cross examined and as there was no re-examination, he was discharged and the matter was adjourned for adoption of final written addresses.
DEFENDANT’S FINAL WRITTEN ADDRESS
Defendant’s final written address was filed on 21st October, 2021 wherein Counsel for the Defendant submitted two issues for determination to wit;
“1. Whether the injury sustained by the Claimant is covered under the Employee’s Compensation Act?
2. Whether the Claimant has proved the compensation and damages claimed judging from the circumstances of the case.”
Learned Counsel on issue one submitted that it is clearly established during the trial that the loss of the Claimant's sight was as a result of the shooting carried out by Armed robbers who attacked the Defendant’s bus when the Claimant was driving same to discharge passengers.
Counsel also submitted that the Employee’s Compensation Act 2010 provides for compensation for any employee who sustained injury during the course of his employment with his employer. However, the position of the law as laid down in the case of Chidi Kalu Mba v. Intercontinental Properties Ltd & 2 Ors (2015) 61 NLLR (pt. 213) @ 257 is that for a claimant to qualify for compensation under the Employees’ Compensation Act, the employment must be the cause of the injury; and the injury must have occurred in relation to that employment or incidental to the employment.
Counsel also referred to the case of Chidi Kalu Mba v. Intercontinental Properties Ltd & 2 Ors(supra) on what amounts to ‘during the course of employment’.
Counsel submitted that although the injury was incidental to the employment, the employment was not the cause of the injury as the shooting that resulted in the loss of the claimant’s eyes was carried out by third parties outside the contemplation of the Claimant’s employment with the Defendant.
That the injury sustained by the Claimant was not in the cause of the Claimant’s employment with the Defendant notwithstanding the fact that the claimant was directly engaged by the Defendant and was driving one of the Defendant’s buses attached to him carrying passengers from Lagos to Port-Harcourt when the incident occurred.
Learned counsel argued that the Claimant is not qualified for compensation under the Employees’ Compensation Act.
On issue two, Counsel posited that assuming without conceding that the employment was the cause of the injury and that the claimant sustained the injury in the course of his employment with the Defendant and entitled to compensation under the Employees’ Compensation Act, what would be left is whether or not the damages claimed by the Claimant have been proved to entitle him to same.
Learned counsel argued that by Section 12 (3) of the Employees’ Compensation Act, any employee who sustained injury during the course of employment is allowed to choose either to claim for compensation from the Fund created under the law for that purpose, by applying to the board (NSITF) or to file an action against his employee or any party that caused the accident that resulted in the injury.
Counsel further argued that the employee shall reimburse the Board where he succeeds in the action and obtains judgment in excess of the compensation already collected from the Fund. But where an employee chooses to file an action instead of claiming compensation from the Fund, the action shall be a bar to claim compensation from the Fund. That in the instant case, the Claimant has chosen to file an action against the defendant, an action which precludes him from claiming compensation from the fund seeking his reliefs.
Counsel submitted that based on the formulae provided by the Employees’ Compensation Act and the averments of the Claimant in paragraph 8 of his amended statement of facts that he was 55 years of age when he sustained the injury, the Claimant would have been entitled if he had elected to claim compensation from the Fund to only N827,999.93 using his average monthly fee of N38,333.33 as shown in Exhibit DM2.
Learned counsel submitted that to award damages, such as the ones sought for by the Claimant in this case, the claimant has a duty to establish that the injury sustained by him resulted from the negligent act of the Defendant or resulted from failure of the Defendant to discharge the duty of care he had towards the Claimant at the time of the injury. Citing the case of Anike v. S.P.D.C.N Ltd (2012) 28 NNLR (pt. 81) 350 CA @ 377-378.
Counsel made the point that from the facts and evidence adduced in this case, there is nothing before the court to show that the Claimant did not follow the company’s instructions and processes put in place to ensure a safe journey at all times. That the attack by the Armed robbers whose shooting resulted in the loss of the Claimant’s sight was a force majeure situation totally out of the control of both the Claimant and the Defendant, and no causal relationship between the duty of care owed by the Defendant to the Claimant and the injury that resulted from the shooting by the robbers.
That the Defendant having not negligently caused the injury sustained by the Claimant, is not liable for negligence to the Claimant and thus, the Claimant is not entitled to any award of damages from the Defendant.
CLAIMANT’S FINAL WRITTEN ADDRESS
Claimant’s final written address which was filed on 26th January, 2022 was deemed as properly filed and served via leave of court. The final written address as submitted by the Learned Counsel for the Claimant contains three issues of determination to wit;
“1. Whether the Claimant is an employee of the Defendant?
2. Whether the injury sustained by the Claimant arises out of and in the course of employment.
3. Whether the Claimant can exercise his right under common law as against the provisions of Employee’s Compensation Act?”
Counsel submitted on issue one that by virtue of Exhibit EE 1 which is the Claimant's statement of account that shows payment of salary into the account of the Claimant by the Defendant and Exhibit EE 7 (the identification card) issued by the Defendant to the Claimant, the Claimant is an employee of the Defendant and is therefore entitled to the reliefs sought.
Counsel submitted on issue two that it is the Claimant’s undisputed evidence that he was shot by Armed robbers which led to his loss of sight while on duty on his way to Port-Harcourt to discharge passengers on board.
That by the provisions of Section 7 of the Employees’ Compensation Act, any employee whether or not in work place, who suffers any disabling injury arising out of or in the course of employment shall be entitled to payment of compensation. That compensation shall be paid to such employee provided the employer has prior notification of such place. Citing Section 7 (2) of the Employee Compensation Act and the case of UAC v. OREKYEN (1961) 1 ANLR 719.
Counsel also submitted that the injury sustained by the Claimant though occasioned by a 3rd party arose out of and in the course of employment. Thus, the claimant is entitled to compensation.
Learned counsel submitted on issue three that the Claimant has the right to seek redress under the common law and that Section 12 of the Employees’ Compensation Act makes provision for the right of the employee to seek redress where injury or disability arises out of and in the course of employment as in the instant case. That the Act in its provisions did not abolish the common law principle of negligence.
That the Defendant never placed before the court its total and minimum monthly contribution to Employees’ Compensation Funds hence leaves the Claimant with the only option of approaching the court for compensation.
Counsel submitted that under the common law or Employees’ Compensation Act, the Claimant is automatically entitled to compensation without further proof and the quantum will depend on the degree of injury, the number of dependents and condition of life. Citing Sections 70 and 71 of the Employees’ Compensation Act.
In his oral adumbration, Claimant's counsel argued that Claimant's case is not based on negligence but under the Employee's Compensation Act.
DEFENDANT’S REPLY ON POINTS OF LAW TO THE CLAIMANT’S FINAL ADDRESS.
The Defendant filed its reply on points of law to the Claimant’s final written address on 1st February, 2022. Counsel argued that there is nothing in Sections 70 and 71 of the ECA as cited by the Claimant that relates to quantum or conditions of compensation payable to an injured employee either under the ECA or the common law.
Learned counsel submitted that compensation payable to an injured employee under the Act is provided in Section 21 as submitted in paragraphs 5.15 and 5.23 of the Defendant’s final written address. Counsel relied on the case of Suleman v. Hongzing Steel Company Ltd (2013) 59 NLLR (pt. 204) 232 @ 277-278;.
Counsel further submitted that contrary to the contention of the Claimant, quantum of compensation under the common law is dependent on the Claimant’s claims before the court and the Claimant’s ability to establish those claims according to law. It does not depend on the degree of injury to the Claimant, number of dependants and/or their condition in life.
DECISION OF THE COURT
I have carefully considered the pleadings of the parties and the evidence adduced. I have also studied the submissions of the respective counsel for the parties in their written addresses. Two issues for determination were submitted by the Defendant while the Claimant submitted 3 issues for determination.
Let me quickly start off with the Claimant's 1st issue for determination; which appears preliminary; the issue is whether the Claimant is an employee of the Defendant?
The Defendant has stated that the Claimant was engaged as one of its drivers under a contract for service to render service to the Defendant as Independent contractor but not as an employee of the Defendant hence he was not issued any letter of employment. However, the Claimant has argued that he was an employee of the Defendant and in trying to prove that, he has presented his Bank Statement of account and Identity card.(Exhibits EE1 and 7).
Now, a contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker.
A worker is defined by the Labour Act as any person who has entered into or works under a contract with an employer whether the contract is for manual or clerical work or is expressed or implied oral or written and whether it is a contract of service or a contract personally to execute any work or labour. But where a contract allows the contractor to work for people other than the employer, that person is referred to as independent contractor or self-employed. See section 91 of the Labor Act.
The definition given by the Labor Act applies to workers, strictly to the exclusion of the management staff. See the case of SHENA SECURITY CO. LTD. VS AFROPAK (NIG.) LTD & ORS (2008) LCN/3557(SC).
There are factors which usually guide a court of law to arrive at a right conclusion to the kind of contract the parties have entered into. For instance, if payments are made by way of wages or Salaries, it is indicative that the contract is one of service. If it is a contract for service, the independent contractor gets his payment by way of fees. In the same vein, where payment is by way of commission only or on the completion of the job, that shows that the contract is for service.
Similarly, where the employer supplies the tools and other capital equipment there is a strong likelihood that the contract is that of employment or of service. But where the person engaged has to invest and provide capital for the work to progress, that indicates that it is a contract for service. See SHENA SECURITY CO. LTD. VS AFROPAK (NIG.) LTD & ORS(supra) and Milway (Sourthern) Ltd. v. Willshire (1978) 1 RLR 322.
It was stated by DW1 under cross-examination that the Claimant was driving a Bus for the Defendant. DW1 also stated that the job of the Claimant is part of the business of the Defendant and that the Claimant can be sanctioned by the Defendant if he misconducts himself while working with the Defendant.
Exhibit EE1 shows that the Defendant had been paying the Claimant salaries, meanwhile Exhibit EE 7 which is the Claimant's Identity card indicates that the Claimant is a staff of the Defendant and going by this and coupled with the fact admitted by the DW1 under cross-examination that the Claimant worked for the Defendant, I am of the opinion that the relationship between the Claimant and the Defendant is that of contract of service hence the Claimant is an employee of the Defendant and not an independent contractor.
Contrary to the contention of the Defendant that there is no letter of employment issued to the Claimant, it is my view that absence of a letter of employment does not actually mean that there is no employment relationship because an employment contract like a simple contract may be oral or by conduct. See Adedoyin V Igbo Devt. Company Ltd(2014)LPELR-22994(CA).
Turning to the main claim of the Claimant. Claimant has submitted that he has the right to seek redress under the common law and that Section 12 of the Employees’ Compensation Act makes provision for the right of the employee to seek redress where injury or disability arises out of and in the course of employment.
It was also argued by the Claimant that under the common law or Employees’ Compensation Act, the Claimant is automatically entitled to compensation without further proof and the quantum will depend on the degree of injury, the number of dependents and condition of life.
However, Claimant's counsel in his oral submission argued that Claimant's case is not based on negligence but under the Employee's Compensation Act.
Although the Claimant does not intend to base his case under the common law principle of negligence, for what it is worth, for a Claimant to succeed in a case rooted in negligence, he must prove by cogent and credible evidence that the Defendant owes a duty of care to him, that the duty of care was breached and that he suffered damages arising from such breach. See Kabo Air Ltd V Mohammed (supra). SPDC Nigeria Limited v. Ikontia & Ors. (2010) LPELR-4910 (CA).
Now, negligence is the omission to do something, which a reasonable man guided upon consideration which ordinarily regulates the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. It means lack of proper care and attention; careless behavior or conduct; a state of mind which is opposed to intention and the breach of a duty of care imposed by common law and statute resulting in damage to the complainant. It is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is also any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. See Kabo Air Limited v. Mohammed (2014) LPELR-23614(CA), Universal Trust Bank of Nigeria Plc v. Ozoemena (2007) 3 NWLR (Pt. 1022) 448, Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 and Diamond Bank Plc v. Partnership Investment Co Ltd (2009) 18 NWLR (Pt. 1172) 67. Nigerian Breweries Plc V David Audu (2009) LPELR - 8863(CA). Donoghue V Stevenson (1932) A. C. p562.
In any event, the Employees’ Compensation Act 2010 has made provisions for making claim by an employee who sustained injury in the course of his work. A person making claim for injury under the Employees’ Compensation Act 2010, cannot directly come to this Court. He can only come to the court after making a direct claim to the appropriate body, i.e the Nigeria Social Insurance Trust Fund (NSITF) Management Board.
It is obvious that an employee can file an action for negligence under the common law. But, he must elect that only if he is dispensing with the ECA processes. See section 12(1) and (3) of the ECA.
Where the Claimant elects to make claim under the Employees’ Compensation Act, it is the NSITF Management Board that determines what is payable for permanent total disability or permanent partial disability as provided under sections 21 and 22 of the Act. It is when the claimant is not satisfied with the outcome of his claim under the ECA that he can approach the NICN after exhausting all the processes of the ECA. See section 55(1), (2) (3) and (4) of the ECA. See also the decisions of this court in the cases of Mr Abonyi Agbo Geoffrey v. Dangote Agrosacks Limited unreported Suit No. NICN/LA/315/2013, the judgment of which was delivered on 7th December 2017, Ola Suleiman v. Hongzing Steel Company Limited unreported Suit No. NICN/LA/73/2011, the judgment of which was delivered on 26th February 2015 and Amina Hassan v. Airtel Networks Ltd & anor unreported Suit No. NICN/LA/471/2012, the ruling of which was delivered on 11th February, 2015.
Although, learned Counsel for the Claimant has submitted in his oral address that the Claimant's case is not based on negligence but under the Employmees' Compensation Act, but it does not appear that the Claimant has exhausted the processes of the claim for compensation under the said Act.
A claim for compensation under the Act is in lieu of any right of action which the injured employee may have against the employer. The provisions of sections 4, 5 and 6 have clearly provided the procedure for making claim under the ECA. If the claimant has elected to pursue his claim under ECA, then he will be estopped to, at the same time pursue claim under the common law on negligence. For a claimant to have a valid claim, he must elect to either claim compensation under ECA or claim on negligence under the common law, and not combine the two claims in an action before the court.
Since the Claimant decides to pursue his claim under the ECA and not under the common Law principle of negligence, then the provisions of Section 12(1) and (3) of the ECA which provide as follows are instructive:–
"The provisions of this Act are in lieu of any right of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which an employee, dependent or member of the family of the employee is or may be entitled against the employer of the employee, or against any employer within the scope of this Act, or against any employee, in respect of any death, injury or disability arising out of and in the course of employment and where no action in respect of it lies.
Where the cause of death, injury or disability of an employee is such that an action lies against some person, other than an employer or employee, the injured employee or deceased employee's dependent may claim compensation or may bring an action and if the employee or dependent elects to claim compensation, the employee or dependent shall do so within 6 months of the occurrence of the injury or death or any longer period, as the Board may, from time to time, determine and an election by the employee or dependent to bring an action in court shall be a bar to claim compensation from the Fund in respect of such injury, disability or death."
A careful perusal of the above provisions of the ECA will reveal that a Claimant may elect to claim under the ECA 2010 or bring an action under the common law rule of negligence and not to pursue the two claims at the same time.
Since the Claimant is claiming under the ECA, it is the NSITF Management Board that determines what is payable as compensation.
To me, the claim of the Claimant is inappropriately before this Court. He will need to exhaust the claim processes of the ECA, and their prerequisites, before he can come to this Court for a claim for compensation
Given the circumstances of this case, I hold that he claim of the Claimant under the ECA is premature and thus liable to be struck out. Consequently, the Claimant’s case is hereby struck out for non-fulfillment of the conditions precedent to the institution of the action. This is without prejudice to any available means to claim for compensation through the NSTIF under the Employee's Compensation Act.
Judgment is entered accordingly.
HON. JUSTICE S.H. DANJIDDA
(JUDGE)