IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI

 

DATE: 14^TH OCTOBER, 2022     SUIT NO: NICN/ABJ/312/2020

BETWEEN

MR. ALEX EKEH                                           -CLAIMANT

AND

SETRACO NIGERIA LIMITED                   -DEFENDANT

Representation

S.E. Ekeh Esq. for the Claimant.

C.N Nwapi Esq. with Margaret Agbo Esq. and Elizabeth Awugo Esq for the Defendant.

       JUDGMENT

1.      By a General Form of Complaint dated and filed on the 2^nd of November, 2020, Claimant instituted this action against the defendant claiming as follows;

                  A  A DECLARATION that the fifty (50%) deduction made from the basic salary of the Claimant by the Defendant from November, 2014 to August, 2018 on the ground of Stood Off, when the Claimant was willing and ready to work but the Defendant provided no work for him was unlawful, a breach of the Labour Act and therefore liable to be refunded to the Claimant.

                B.  A DECLARATION that the election of the Defendant to remit only fifty (50%) percent statutory monthly pension contributions into the Claimant’s pension account for forty-six (46) months (November, 2014 to August, 2018) is illegal, ultra vires the Defendant and a violent breach of the provisions of the Pension laws which stipulates the percentage of contribution to be made by both the employer and the employee to the pension account of an employee every month and therefore liable to be fully remitted to the Claimant’s pension account by the Defendant.

                 C.  A DECLARATION that the deductions from the monthly salary of the Claimant as Nigerian Social Insurance Trust Fund (NSITF) contributions by the Defendant for forty-one months (June, 2011 to October, 2014) in contravention of the provisions of the Employee’s Compensation Act, 2010, which expressly forbids employers of labour from making such deduction is wicked, unfair labour practice, unlawful, a clear breach of the provisions of the Employee’s Compensation Act, 2010 and liable to be refunded by the Defendant to the Claimant with interest paid on the total sum at the prevailing interest rate.

                D.  A DECLARATION that under the Employee’s Compensation Act, 2010, the Defendant as an employer of labour has a duty to report all injuries and deaths that occur to its employees at workplace to the Nigerian Insurance Social Insurance Trust Fund within the time stipulated in the Act and the negligence, refusal and/or failure by the Defendant to report the injury suffered by the Claimant at his workplace in the course of his duties to the Defendant within the time provided by statute is wicked, a breach of statutory duty and duty of care owed the Claimant by the Defendant as its employee.

               E.    A DECLARATION that the Defendant is liable to pay compensation to the Claimant for the injury that the Claimant sustained while working for the Defendant, which injury the Defendant neglected, refused and/or to report to the Nigerian Social Insurance Trust Fund as required by Employees’ Compensation Act, 2010, and which neglect, refusal or failure warranted Nigerian Social Insurance Trust Fund to decline including the Claimant for compensation under the Social Insurance Trust Fund Scheme created to compensate and/or benefit employees who sustained injury in the work place.

                F  AN ORDER OF THIS HONOURABLE COURT directing the Defendant to pay to the Claimant the sum of N150, 000,000.00 (One Hundred and Fifty Million Naira) as compensation for the occupational injury sustained by the Claimant while working for the Defendant, which injury has left the Claimant partially blind and unable to fend for his family and which injury the Defendant neglected, failed and/or refused to report to the Nigerian Social Insurance Trust Fund as required under the Employees Compensation Act, 2010, which negligence, failure and/or refusal caused the Fund to deny the Claimant from been compensated under the Act.

                  G. AN ORDER directing the Defendant to refund to the Claimant the sum of N1, 610,000 (One Million, Six Hundred and Ten Thousand Naira) deducted from the Claimant’s monthly remunerations termed “Stood Off Deductions” for the period of forty-six months (November, 2014 to August, 2018), that the Defendant placed the Claimant on Stood Off, which deductions were not supported either by the Stood Off Letter dated 10th November, 2014 issued to the Claimant by the Defendant or any labour law in Nigeria.

                H.  AN ORDER directing the Defendant to remit the fifty (50%) per cent deductions made by the Defendant from the monthly contributory pension remittance to the Claimant’s pension account for the period of forty-six months (November, 2014 to August, 2018) that the Defendant placed the Claimant on Stood Off, which unlawful deductions have not been remitted into the contributory pension account of the Claimant till date.

                 I.   AN ORDER directing the Defendant to pay to the Claimant the fifty (50%) of the Claimant’s basic salary that the Defendant consistently deducted from the salary of the Claimant for forty-six months (November, 2014 to August, 2018) on the ground of “Stood Off” which term is alien to Nigerian labour laws and when the Claimant was willing to work but the defendant provided no work for him.

                 J.   AN ORDER directing the Defendant to pay the sum of N123, 000.00 (One Hundred and Twenty-Three Thousand Naira) being the total amount which it unlawfully deducted from the monthly salary of the Claimant as contributions for Nigerian Social Insurance Trust Fund from June, 2011 to October, 2014 contrary to the provisions of the Employee’s Compensation Act, which forbids such deductions from employee’s salary by employers and which deductions were not remitted to the Nigerian Social Insurance Trust Fund. Interest on this sum at the prevailing interest rate.

                  K. AN ORDER awarding the sum of N10, 000, 000. 00 (Ten Million Naira) to the Claimant as exemplary damages against the Defendant for the various and sundry egregious conducts of the Defendant towards the Claimant, resulting in gross negligence, unfair labour practices, illegal deductions from the salary of the Claimant and breach of statutory obligations.

                L.  Ten (10%) per cent per annum post judgment interests on the judgment sums from the date of judgment till the judgment sum is liquated.

                M. Cost of this action.

 

2.      It is the Claimant’s case that he was an employee of the defendant and while in the employment of the defendant working at the Defendant’s Auto Electrical workshop in the ordinary course of his duties, a motor battery exploded and splashed acid into his eyes, causing him severe pain and discomfort which he reported to his supervisor who subsequently reported same to the Site personnel manager. As a result of the severity of the injury sustained, he was rushed to the Defendant’s Staff Clinic for immediate attention. He continued that he had to seek for medical help in several hospitals as a result of the injury he sustained to no avail. He was later transferred from the Ammasoma site of the defendant in Bayelsa to its other site in Asaba and it was while at the Asaba site that the defendant on 10th November, 2014, issued him with an inter-office Memorandum titled “Stood Off Letter” by which he was placed on what is termed stood off which term is unknown to the Nigerian labour law. That the Defendant deducted an average of N35,000 per month from his salary for the 46 months when his employment was terminated via what it termed “stood Off deductions” which was not contained in the Letter of Stood off and which deductions were not communicated to him. The defendant contrary to the provisions of the Employees Compensation Act, deducted from his salary an average of N3000 per month for 41 months. The defendant refused to report his injury to the Nigerian Social Insurance Trust Fund (NSITF) as required by law and that has left him with no compensation even after the termination of his employment. On the 9^th day of August,2018 after the defendant failed to forward his  NSITF Form ECS MR 01 to the NSITF he was issued with two letters, one recalling him from the stood off and the other disengaging him with effect from the 10^th August, 2018. The defendant maliciously misinformed the NSITF concerning his plight. He brought this action against the defendant in line with the provisions of the Employees Compensation Act. Claimant as a result of the injury he sustained in the course of his duties and the actions of the defendant towards him, has caused him pains, psychological and emotional trauma.

 

3.      The defendant in response vide its statement of defence averred that Claimant was given everything necessary for the performance of his duties and it is its practice to always give PPE to its staff and the injury suffered by Claimant was as a result of his own negligence. It maintained that stood off is a concept/agreement customary to the Construction industry whereby an employer who is still willing to retain the service of its employee though there is no work does so by placing such an employee on stood off and Claimant while on stood off never rendered any service to the defendant but was still paid and that stood off is a specie of redundancy. According to it, the sums deducted from Claimant’s salary was pension and has been remitted to his account. The defendant stated further that its site in Asaba was shut down due to the harsh economic reality. It is not every injury that attracts compensation from the NSITF and Claimant did not give it any report for onward transmission to the NSITF. It was the defendant’s position that Claimant’s negligent conduct caused the battery explosion and for which he was treated and the effect became resolved. Claimant only wants to take undue advantage of the defendant after he had been declared redundant.

 

4.      On the 22^nd day of November, 2022 Claimant opened his case and testified for himself by adopting his written statements on oath and additional written statement on oath. Documents marked Exhibits A-A22 were admitted through him. He was subsequently cross examined by learned counsel on behalf of the defendant. Claimant subsequently closed his case on the 19^th day of January, 2022. On the same date, defendant opened its case and one Mohammed Adebakin testified for it as DW. Documents marked Exhibits M-M3 were tendered through him. He was cross examined by learned counsel on behalf of the Claimant after which he was discharged and the case of the defendant was closed. Parties were ordered to file their final written addresses.

 

5.      On the 8^th day of February, 2022 learned counsel on behalf of the defendant filed his final written address in compliance with the Rules of this Court wherein he formulated two issues for the determination of this case thus;

 

 

a.      Whether it is unlawful for the defendant to place the Claimant on stood off and/or declare redundancy.

b.     Whether Claimant is entitled to compensation as claimed.

 

6.      On issue one, learned counsel submitted that placing the Claimant on stood off and or redundancy is not unlawful as the employment is a master-servant. He relied on the case of Olaniyan v. University of Lagos; Iderima v. RSCSC [2005] All FWLR (Pt 285)432 and Chukwuma v. Shell [1993]5SCNJ 1@50. He submitted further that Exhibit M which is the letter of employment clearly spells out all the terms and conditions of employment until the declaration of stood off in Exhibit A10 which is deemed to be the new terms and conditions of the employment. Learned Counsel submitted that the concept of stood off is a situation whereby the employer is desirous of keeping its workforce but is unable to do so due to the absence of work and the employer re-negotiates with the worker to pay certain remunerations. Pending when there is work generally in the construction industry. He relied on the case of Intels (Nig) Ltd v. Bassey [2013] All FWLR (Pt 675)376@385, Paras B-D. He submitted that there is no law that fetters the right of the employer to terminate employee’s employment. He cited the case of L.C.R.I. v. Ndefoh [1997] NWLR (Pt 491)72. He submitted that Section 20 of the Labour Act, Cap L1 Laws of the Federation, 2004 recognises redundancy. He relied on the case of Union Bank of Nigeria Plc v. Ariba [2015] All FWLR (Pt 763)1868@1873.

 

7.      Learned counsel submitted that the issue of deductions is inextricably linked to the mode of removal from office. He submitted that Exhibit M4 clearly shows Claimant’s pension contributions with his Pension Fund Administrators (PFA) and which deduction was explained by DW1. He submitted that based on the foregoing, stood off is not unlawful and the terms and conditions of the said stood off were clearly spelt out and accepted by Claimant. He submitted that Claimant’s Reliefs A, B, C, D, H, I, J, and K are not maintainable. He submitted while relying on the case of Omoju v. FRN [2008] All FWLR (Pt 415)1657@1670, E has to prove based on arid legalism the wrongness of stood off and redundancy and the law that compels the Claimant to retain Claimant or fetter the wright of the defendant.

 

8.      On issue two, learned counsel submitted that the Claimant is not entitled to compensation as claimed in reliefs E, F, G, L, M and N as the Claimant can only claim for damages when he has proved liability. He relied on the case of Anike v. SPDC (Nig) Ltd [2012] All FWLR (Pt 638)975@989, Para E. He submitted that the NSITF is not a tax but insurance and damages are only paid upon proof. He submitted that the Claimant’s claim in this instant is that the defendant refused to report his injury to the NSITF and not that it didn’t treat Claimant or pay his hospital bills. He submitted that Claimant’s hospital bills were paid and he equally got his entitlements till there was a stood off. He submitted that Claimant’s grouse is that he was placed on stood off and later redundancy. He submitted that Claimant unequivocally without force accepted the terms of Exhibit A10 and as such is binding. He relied on the following cases; Zenith Bank v. Kanu & Anor [2020] LPELR-51136(CA)49, Paras D-E; Odutola v. Papersack (Nig) [2007] FWLR (Pt 350)122@1234-1235, Paras H-B and Agwunedu v. Onwumere [1994]1SCNJ 106@136. He urged the Court to hold that Claimant is bound by the terms of Exhibit A10 which he has accepted.

 

9.      Learned Counsel submitted that assuming but without conceding that the defendant did not report to the NSITF, the only effect would be that the medical effect borne by it would not be refunded by the NSITF and vice versa. He submitted that the effect is the defendant would bear the burden of all his medical expenses. He submitted that by Exhibit A9 which is the most recent Medical Report, Claimant’s eye was 6/12 which is considered as good by the World Health Organization (WHO) and 6/6 in the right eye normal vision. He submitted that though Claimant filed this action in 2020 there is no medical report between 2018 and 2020 showing that Claimant has become blind. He submitted that the Claimant has not discharged the burden placed on him. He urged the Court to refuse reliefs E, F, G, L, M, and N.

 

10. Counsel submitted as regards damages while relying on the case of Rivers Vegetable Oil Company Ltd v. Egukole that Claimant is not entitled to damages as claimed. He submits further that this suit suffers from non-joinder of the NSITF. He relied on the case of Kwara State Civil Service Commission v. Abiodun [2009] All FWLR (Pt 493)1315@1354-1355. He submitted that the NSITF is a necessary party without whom Claimant may not completely raise the issue of compensation within the ambit of the Employee’s Compensation Act, 2010 and as such the non-joinder of NSITF is fatal to claimant’s case. He also relied on the case of Re NDIC [2007]7NWLR (Pt 1032)54@57, Ratio 4.

 

11. Learned Counsel argued that Claimant is not equally entitled to cost of action. He submitted that the Labour Act recognizes redundancy and it is immaterial whether Claimant was ready and willing to work because once the employer does not have work stood off can be declared. He submitted that since the employment is master-servant and based on the plethora of legal authority, the defendant has the right to hire and fire. He urged the Court to dismiss the case of the Claimant.

 

12. On the 7^th day of March 2022, learned counsel on behalf the Claimant filed his final written address which was deemed adopted pursuant to Order 45 Rule 7 of the Rules of this Court, 2017 on the 14^th day of July, 2022. Therein, learned counsel formulated the following issues for determination to wit;

 

 

1.     Whether having regards to the state of the Claimant’s pleadings he can claim reliefs D, E, and F contained in the Statement of Fact;

2.     Whether or not the process titled witness statement on oath adopted by the Defendant’s witness as his evidence and which is a duplication of the Defendant’s pleadings is competent or qualifies as evidence before the Court.

3.     Whether or not the term “stood off” is known to Nigerian Labour laws or practice, if the answer is in the negative, whether the act of the Defendant placing the Claimant on stood off for forty-six months is not unlawful.

4.     If the answer to issue 3 is in the affirmative, whether the deductions made to the Claimant’s remuneration under the stood off to wit: “stood off deduction” and fifty (50%) percent deductions from pension as well as fifty (50%) per cent deduction from the Claimant’s basic salary for forty-six months should not be refunded by the Defendant to the Claimant.

5.     Whether the Claimant is not entitled to compensation from the Defendant for the injury he sustained to his eyes while working for the defendant.

 

13. On issue one, learned counsel submitted that the Employee’s Compensation Act No. 12 of 2010 (hereafter referred to as ECA) repealed the Workmen Compensation Act, Laws of the Federation 2004 and which statute is for the benefit of employees. It is to provide for an open and fair system of guaranteed and adequate compensation for all employees for death, injury, disease or disability. He submitted that it is not in dispute between the parties that the Claimant who is an employee as envisaged under the ECA sustained injury to his eyes in the course of his work and that the injury occurred as a result of explosion of motor battery, which splashed acid water into the eyes of the Claimant which is an accident in line with Section 73 of the ECA. He submitted further that the procedure laid down by the ECA to qualify an employee who suffered injury, occupational disease or death at the workplace to claim compensation is contained in Section 4 (1) of the ECA which no doubt imposes a duty on the employee to promptly bring to the attention of his employer any injury sustained by him at the workplace, failure of which may lead to denial of compensation by the Fund as provided in Section 4 (4) of the ECA. He submitted that Claimant vide paragraphs 5-8 of his written depositions which were not contradicted or challenged by the Defendant was able to show that the accident occurred at the workplace and in the course of his duty and that he complied with the provision of the ECA by promptly reporting the accident to his immediate Head who in turn informed the site Personnel Manager which injury due to its severity led Claimant to the Site Staff Clinic. He submitted that the staff clinic referral Form which is on the letter head of the Defendant was tendered in evidence without objection contained the information required in Section 4(1) of the ECA which thus fixed the Defendant with the knowledge of the accident and nature of the injury sustained by the Claimant. The Claimant has thus discharged the duty imposed on him by law to report his injury to his employer within 14 days of the occurrence of the injury and the duty then shifts to the Defendant to report the Claimant’s injury to the appropriate authority to enable the authority process the Claimant for compensation as provided in Section 5 of the ECA and in the event of failure to report such by the employer, it is criminalized. He relied on Section 5(5) of the ECA.

 

14. Learned counsel stressed that the defendant was not relieved of the statutory duty to report the Claimant’s injury to the Board of NSITF which he failed to and Claimant has given sufficient testimony on this in paragraphs 29-33 of his written deposition which were not challenged. He posited that DW1 under cross examination, claimed that the Defendant made the report on the prescribed form but when he was asked if he has any evidence to show to the Court that the report was made, he claimed not to have such which proves that the Defendant never made any report. Counsel submitted that failure of the defendant to reply Claimant’s lawyer letter requesting the defendant to report Claimant’s injury is deemed as an admission of the content of the letter. He cited in support, the case of Trade Bank Plc. v. Chami [2003]13 NWLR (Pt. 836) P. 158@219-220, Paras B-G. He submitted that Section 12 of the ECA provides Claimant with a remedy by allowing him to bring this action and sustain same against the Defendant for breach of statutory duty of care to report his injury to the appropriate authority to enable him receive compensation for the injury, which is statutorily provided the injury was sustained in the course of employment. He submitted that Claimant’s reliefs D, E and F are instructive. He went on to state that the refusal or failure of the Defendant to take advantage of the statutory scheme by reporting the Claimant’s injury to enable him be enlisted for compensation under the scheme meant that the Defendant elected to solely bear the responsibility of compensating the Claimant for his injury and must be held to do so. He urged the Court to grant the reliefs.

 

15. On issue two, Claimant’s counsel submitted that Order 15 Rule 1 (1) (d) of the Rules of this Court requires a Defendant to file along with his statement of defence a witness statement on oath which statement of defence shall contain a defendant’s pleadings, while his witness statement on oath shall contain the evidence by which the facts in the pleading shall be proved and the two processes are distinctively different. He submitted that pleadings cannot be substitute to take the place of evidence. He relied on the case of Okonkwo v. Zurmi & Anor [2018] LPELR-46855(CA). Counsel submitted that what the Defendant did in the present case is to replicate its pleadings word for word and paragraph for paragraph by repeating the same averment in its pleadings in the witness statement on oath including the general traverse. He contended that repeating averments in pleadings in witness statement on oath does not serve as evidence in proof of the averments in the pleadings. He relied on the following cases; Okonkwo v. Zurmi & Anor, supra; Kaydee Ventures Ltd v. Minister, Federal Capital Territory, Abuja [2010]7 NWLR (Pt. 1092) 171; Alhassan & Ors v. Makama [2018] LPELR-46567(CA); Ajibola v. Anisere & Anor [2019] LPELR-48204(CA). He urged the Court to find and hold that the Defendant has failed to adduce any evidence in support of its pleadings and that the purported witness statement on oath of DW which contains repetition or duplication of the averments in the statement of defence does not qualify as evidence to prove the same averments it repeats or duplicates.

 

16. On issue three, it is learned counsel’s contention that the defendant in its final address strenuously argued that the relationship between the Defendant and the Claimant was that of master/servant. It went ahead to cite and rely on some cases to support its argument and dwelt so much on its right to declare redundancy while citing Section 20 of the Labour Act and some cases in support of its argument but the arguments and authorities cited show the Defendant clearly misjudged and totally misunderstood the case presented by the Claimant.  He submitted that the case made out by the Claimant is that the Defendant unlawfully placed him on stood off, embarked on illegal deductions from his remuneration and refused to report his injury to the NSITF to enable him benefit from the compensation scheme designed to benefit workers who got injured or who died in the workplace. He submitted that defence counsel in paragraph 2.6 of the final address fruitlessly attempted to define what the term, concept or notion “Stood off” means but never referred to any labour statute, case law, dictionary, textbook, agreement or any other authoritative source where it derived the said definition. He submitted that the Defendant pleaded and led evidence that stood off is a customary practice in the construction industry while under cross examination, DW1 said there was an agreement between workers’ union and the management of the Defendant but when asked to produce the agreement said he didn’t have the agreement. It is his submission that the burden of proving the existence of stood off as a customary practice in the construction industry lies on the Defendant but the Defendant failed to produce any evidence to prove the alleged custom. He relied on Sections 16, 18 and 73 of the Evidence Act, 2011. He submitted that stood off as a custom of the construction industry has not been judicially noticed and ought to be proved by factual evidence by the defendant by calling someone who has knowledge of the construction industry. He submitted further that the Port Harcourt Division of this Court has declared the term, concept or phrase “stood off” as unknown to labour laws and practice and therefore illegal. He relied on the case of Chiadikaobi Ogmor Obiakara v. Mife Construction Nigeria Ltd Suit No: NICN/PHC/59/2018 delivered on 23^rd October, 2019 which authority remains the current state of the law on the term or phrase “stood off” as the judgment has not been over ruled or set aside by the Appellate Courts and as such this Court is bound by its own decision. He submitted that law, a custom, contract or agreement rooted in illegality must not be pleaded and if pleaded, it cannot be enforced by the Court while relying on the case of Nnadozie v. Mbagwu [2008]3 NWLR (Pt. 1074) 363@394-395, Paras H-B. He submitted that the principle of “ex turpi causa non oritur actio” forbids a party to enforce the performance or enjoy benefit of an illegal act or one founded on consideration that is contrary to public policy. He relied on the case of Hein Nebelung Isensee K.G. v. U.B.A. Plc., [2012] 16 NWLR. (Pt. 1326) 357@390-391, Paras E-A. He argued that the case of Intels (Nig.) Ltd v. Bassey, supra cited by the Defendant to support its purported definition of the term “stood off” is totally irrelevant and unhelpful as the portion of the decision quoted related to salaries and not “stood off.

 

17. On issue four, it is the position of learned counsel that arising from the illegality called stood off; the Defendant proceeded to commit further illegalities by embarking on unlawful deductions from the remuneration of the Claimant. He submitted that the Defendant at paragraph 3.0 of its final address submitted that the issue of deductions and/or entitlement is inextricably tied to the mode of removal from office is contrary to the provision of Section 5 (1) of the Labour Act. He submitted further that the Defendant has not shown any law or agreement that enabled it to deduct 50% of the Claimant’s basic salary or stood off deduction for forty (46) months neither has it shown the provision of the Pension Reform Act 2014 that permits it to elect to remit only 50% of the Claimant’s contributory pension for those periods. He also submitted that the argument of the defendant in the final written address that it paid the Claimant during those periods even though he did not work will not be a justification for the deductions. He relied on Section 17 (1) of the Labour Act. He submitted that the defendant by Exhibit N4 has only been able to show that it remitted only 50% of Claimant’s pension during those periods. He urged the Court to order the Defendant to pay the balance for the remaining 50% contribution to Claimant’s pension accounts within fourteen (14) days from the date of the judgment in this case and forward evidence of the payment to Claimant’s counsel.  He submitted that The Defendant is liable to refund the sum of N1, 610,000.00 (One Million, Six Hundred and Ten Thousand Naira) being the total deductions from the Claimant’s remuneration for 46 months representing stood off deductions.

 

18. On issue five, learned counsel submitted that the Defendant has the burden to prove to the Court that its assertion that the effect of the motor battery accident resolved in 2012 and that the Claimant was attending hospitals for another ailment, are true. He relied on Section 136 (1) of the Evidence Act and the cases of Vanguard Media Ltd v. Olafisoye [2011] 14 NWLR. (Pt. 1267)207@251, Paras, D-F and Akinfosile v. Ijose [1960] SCNLR (P.447)453. He contended that the defendant failed to prove this assertion. He submitted that there is material contradiction in the evidence of the defendant because the defendant pleaded that the Claimant had underlying eye defect which pre-dated his employment and which continued after the effect of the motor battery acid resolved while under cross examination, DW1 stated that the Claimant was attending hospitals for other ailments not related to his eye problem. He relied on the following cases; Anambra State Government v. Gemex International Ltd [2011] LPELR-9733 CA; Azubuike v. Diamond Bank Plc [2014] 3 N.W.L.R. (Pt. 1393)116@127 Paras G-H,; Ajibare & Anor v Akomolafe & Anor [2011] LPELR 3948 (CA) and; The Administrator General and Public Trustee Delta State & Anor v Ogogo & Anor [2005] LPELR 7553 (CA). Counsel argued further that DW1 under cross examination admitted that the Defendant subjected the Claimant to medical tests before his employment and that the medical test did not disclose any ailment whatsoever and which evidence by DW1 is conclusive of the fact that the Claimant had no underlying eye defect as alleged by the Defendant. He submitted further that the submissions of the defence counsel in paragraphs 3.4 and 3.5 of the Defendant’s final address cannot take the place of evidence because the evidence of payment of medical expenses of the Claimant was neither pleaded by the Defendant nor did it lead any scintilla of evidence on the fact. He relied on Suleman & Ors v. Ukana & Ors [2019] LPELR-46827(CA)

 

19. Learned counsel submitted also that the defendant cannot escape liability because it owed the Claimant a duty of care and safety to provide the Claimant with the requisite Personal Protective Equipment relevant to his field of work but the Defendant neglected, refused and/or failed to do so. He submitted further that the question of compensation for injury, occupational disease or death at the workplace is a question of law under the ECA which duty imposed by the said ECA on an employer is mandatory and does not admit of discretion on the part of an employer and a condition precedent for an injured worker or a dead worker to access compensation under the scheme created by the ECA. He submitted that the case of Rivers Vegetable Oil Company Ltd V Egukole (though without citation) is totally irrelevant to the facts of this case as it dealt with the damages in the event of termination and not the compensation payable to an employee who suffered injury at workplace. He also submitted that the case of Kwara State Civil Serv.Com v. Abiodun, supra cited by the defendant is not tenable in this case. That it is clear from the provisions of Section 12 (1) of the ECA that compensation for injury or death under the Act are in lieu of the right of an employee to sue his employer for any action statutory or otherwise, founded on a breach of duty of care or any other cause of action. In conclusion he urged the Court to grant the reliefs of the Claimant.

 

20. On the 10^th day of March 2022, learned counsel on behalf of the defendant filed a reply on points of law to the final written address of Claimant wherein he submitted that the injury was not of any disabling nature and cannot be compensated by the ECA. He relied on Section 4(1) of the ECA. He submitted that the quantum of injury must be indicated by the medical report and that the submission of Claimant’s counsel on this issue is academic. He relied on Attorney General Anambra State v. AG federation [20055]All FWLR (Pt 268)1557; Bala A. Bako v. Independent National Electoral Commission & INEC & Ors [2013]LPELR-20722(CA); Olalomi Ind Ltd v. NDIB Ltd [2009]16 NWLR (Pt 1167)266@303-304.

 

21. On issue two, he submitted that the Court has power to disregard the technical irregularity in the statement on oath of DW. He relied on Order 9 Rule 3 of the Rules of this Court. He submitted that the statement on oath is competent as it was sworn before a person authorized. He relied on Section 113 of Evidence Act, 2011 and Nzekwe v. Anaekwennegbu [2012] All FWLR (Pt 620)1390@11402, Paras F-A. He submitted that the goal of the Court is substantial justice.

 

22. On issue three he submitted that the case of Chaidikaobi Ogmor Obiakara v. Mife Construction Nigeria Limited unreported Suit No NICN/PHC/59/2018 relied on by Claimant’s counsel differs from the case at hand because unlike in that case, the terms of the stood off was clearly stated in the letter of stood off and it was not shrouded in mystery. He equally relied on the case of Aawara v. Alalibo [2003] FWLR (Pt 144)506@522, Paras A-C.; Osu v. Ogiri & Sons [1998]1 NSCC 122. He submitted that the decision of Port Harcourt Division is not binding on the Court. He relied on Arugu & Ors v. Rivers State Independent Electoral Commission & Ors [2010] LPELR-9086(CA); Uwazuruike & Ors v. A.G Federation [2013] LPELR-20392.

 

23. On issues four and 5, he submitted that stood off arose as a result of the freedom of parties to contract in private law. He submitted that the destination of the deduction is traceable to the Stanbic Pension Managers as evidenced by Exhibit M4. He submitted that Claimant had not alleged that the defendant did not pay his medical expenses as Exhibit M  and A10 shows the defendant was entitled to and being paid 100% medical while on stood off.

 

24. After a careful perusal of the originating process together with its accompanying processes, the statement of defence and its accompanying processes, the final written address of parties and the Reply address by the defendant, I am of the view that the issue arising for determination is as follows;

1.      Whether the custom stood off is known to law and the Claimant can be placed on a stood off

2.      Whether Claimant has proven his case to be entitled to the reliefs sought

25. On the preliminary, it is germane for me to address the way and manner the defendant herein entered appearance in this case. Learned Counsel on behalf of the defendants on the 2^nd day February, 2021 filed a memorandum conditional of appearance. It is well settled in law that when a defendant enters, a conditional appearance, he intends to object to the jurisdiction of the Court. See the following cases; PDP v. INEC &Ors [2018] LPELR-44373 (SC) 1@6, Para C and Izeze v. INEC &Ors [2018] LPELR-44284 (SC)1@5, Para D.  Contrary to the above position of the law, it is observed that the defendant herein after entering conditional appearance did not object to the jurisdiction of this Court as expected by the conditional appearance and the proceedings proceeded till trial was completed. In the Supreme Court case of U.B.N. Plc v. Awmar Properties Ltd. [2018] 10 NWLR (Pt.1626) 64@75 - 76, the Apex Court held again per Rhodes-Vivour, J.S.C., (Rtd) thus; “The defendant entered conditional appearance. This is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction to hear the case. After the entry of conditional appearance, learned counsel for the defendant at no time objected to the Court's jurisdiction. Proceedings proceeded. The appearance of the defendant to the proceedings in the High Court was thus unconditional. The above explains why the entry of conditional appearances was worthless.”[Emphasis mine]. It is in line with the above case law authority, that I find that the appearance of the defendants in this suit is an unconditional one. In the same vein, the apex Court in the case of Adegoke Motors Ltd. v. Adesanya &Anor. [1989] 3 NWLR (Pt.109) 250, held inter alia that if a defendant fails to object as expected and allowed the case to proceed with his participation as in the instant case, he would be deemed to have submitted to the jurisdiction of the Court. Flowing from the above authority, the defendants having not raised any objection to the jurisdiction of this Court after entering conditional appearance are deemed to have made an unconditional appearance.

 

26. I will also like to address the citation of authorities by learned counsel for the defendant in the final written address. A counsel owes it a duty to give the full and correct citation of cases relied upon. The Supreme Court, per Muntaka-Coomassie, JSC, made the point in Ogudo v. The State [2011] LPELR 860(SC)1@55, Para D thus: “Counsel has a duty to properly cite the cases they seek to rely on in their briefs of arguments in order to assist the Court. A situation where a Counsel cites a case and put a wrong citation, the assumption is simple, the case does not exist, and such an act is condemnable. Decisions of the Courts particularly decisions of this Court are case laws under the principle of stare decisis are binding on this Court and all other Courts below, hence in citing his case, Counsel have to ensure accuracy.” Also driving home this point, the apex Court in the case of Chidoka & Anor v. First City Finance Ltd [2012] LPELR-9343(SC) 13-14, Para D held inter alia thus; A counsel who wants the Court to make use of the authorities cited must provide and cite the cases with clarity, i.e. the name of the parties, the year the case was delivered, if it is unreported a certified true copy, where the case has been reported, the name of the law report, the year, volume and the page. To dump authorities on the Court without clear reference, that would not be accepted by this Court…” In paragraph 2.2 of the final written address learned counsel cited and relied on the case of Olaniyan v. University of Lagos and put the word supra when he had not cited the authority prior to that paragraph and went ahead to quote a quotation from the said decision. In the same vein in paragraph 2.8 he cited a case thus “LCRI V. NDEFOH [1997] NWLR PT 491 72 at….” Without stating the volume of the law report. In paragraph 4.3 of the same address, he cited and quoted from the case of Vegetable Oil Company Ltd v. Egukole and put supra instead of the full citation without having cited the case before then. It is in the light of the above authorities that I discountenance the said authorities.

 

27. Let me also address the contention of Claimant concerning the written statement on oath of the DW in this case. Learned Claimant’s counsel vide paragraph 2.11-2.16 of the final written address submitted that the written statement on oath of DW is a direct repetition of the statement of defence including the general traverse. He submitted that repeating the averments of the defendant word for word in the statement on oath is tantamount not producing any evidence in support of the pleading as the statement on oath itself is made up of mere averments. He submitted that the repetition or duplication of the averments does not qualify as evidence to prove the same averment it duplicates. Learned counsel on behalf of the defendant in response vide his Reply address submitted that such irregularity in the written statement on oath is a technical irregularity. He submitted that the aim of this Court is to do substantial justice and not to be confounded by technicalities. I have perused the disputed written statement on oath with the finery of a tooth comb and I must say that just like the learned Claimant counsel had submitted except for the introductory part of the statement on oath and the oath paragraph, all other paragraphs particularly paragraphs 2-25 are mere repetition of the 24 paragraphs of the statement of defence word for word. Let me start by saying that the time to object to the competence of a statement on oath is when the statement is to be adopted by the witness because the written statement on oath when adopted in Court becomes evidence in chief of the witness. See the case of Obanigba v. Abibu [2021]5NWLR (Pt 1762)84@109, Paras B-F  

 

28. In the instant case, the objection is coming for the first time in the final written address of parties. It is too late in the day for learned counsel to be raising an objection on the written statement of DW which he had already adopted and in respect of which he had been cross examined by learned counsel at the stage of the final written address. Besides, the Court of Appeal held in the case of Ogunde v. Abdusalam [2017] LPELR-41875(CA)1@49, Para B thus; “Now, by trials under the new regime of frontloading of evidence, more often than not, statement on oath of a witness is the replica of the pleadings of the party on whose behalf the evidence is given. The written deposition of a witness is thus adopted as his evidence in chief while his cross examination is the test of his veracity and the Court would only act on such evidence if it is found to be cogent, credible and reliable upon proper evaluation. Thus, the fact that a witness had deposed to any or all the facts as pleaded alone would not suffice because the Court still has the duty to assess the quality of his evidence. See Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 201. See also Saeed V Yakowa (2013) 17 NWLR (Pt. 1352) 124; Tush V. Michael (2010) 10 NWLR (Pt. 1203) 519; Aregbesola v Oyinlola (2010) LPELR 3805 (SC.)” [Emphasis mine] It is thus clear that most times that the witness statement on oath are most often than not a mere replica of the pleadings of the party alone does not render it incompetent. The Court still has a duty to evaluate the evidence and assess the quality of the evidence. If the evidence is thus cogent and credible the Court can rely on it. This is not to say that learned defence counsel did a good work with the statement on oath. There is no doubt that learned defence counsel did a very shoddy work with the statement on oath of DW which is inexcusable. A perusal of the said written statement on oath of DW will show that DW was merely repeating all the 24 paragraph averments in the statement of defence in his written statement.

 

29. In the case of Sokoto v. INEC [2022]3 NWLR (Pt 1818)577@600, Paras C-D, the apex Court held that frontloaded deposition on oath of a witness in support of his pleadings constitutes his evidence in chief in the proceeding. It then means that the frontloaded deposition of DW which has already been adopted constitutes his evidence in chief notwithstanding that it is a mere repetition of the averments in the statement of defence word for word including the general traverse. In my view, the question that should be asked is whether in view of the fact that the said written statement on oath is a mere repetition of the pleadings word for word as reasoned supra is credible and cogent and as such sufficient evidence to sustain the case of the defendant. I refer to the decision of the Court of Appeal in Alalade v. Ododo & Ors [2019] LPELR-46888(CA)1@8-18, Paras F-F where the great jurist Ogakwu JCA held inter alia thus; “I will set out in extenso, the terse and laconic five paragraph witness statement on oath of the Appellants sole witness to see if it is of a quality that activated, awakened and spoke to the averments in the eleven-paragraph statement of claim, paragraph 10 of which has thirty sub-paragraphs. The witness statement on oath reads: "I, JOHN OYEBIYI ALALADE, Male, Nigerian, Medical Doctor of 67, Oshodi Abeokuta Express Road, Dopemu, Agege, Lagos do solemnly make oath and slate [sic] as follows:-

1. That I am the 1st Claimant in this case and by virtue of my position conversant with all the facts thereof.

2. That I have the authority of the 2^nd, 3^rd, 4^th, 5^th and 6^th joint Claimants in this action to depose to this affidavit.

3. That I confirm and repeat all the averments and pleadings in paragraphs 1,2,3,4,5,6,7,8,9,10 and 11 of the Statement of Claim prepared by our Solicitor, Olusegun A. Alalade Esq, in the case.

4. That I shall during my evidence in this case testify to all the facts contained in the aforesaid statement of Claim as well as tender all the documents listed in the schedule of documents to be relied upon by the claimants in this case at the trial.

5. That I depose to this affidavit in good faith believing in the truth of its contents."

(See page 16 of the Records)

It is clear that the operative and major parts of the witness statement on oath are paragraphs 3 and 4. In paragraph 3, it is deposed that all the averments in the statement of claim are confirmed and repeated. Now, if the law is that evidence has to be adduced to awaken and put to use the averments in the statement of claim, the testimony of a witness which is that "I confirm and repeat the averments in the pleadings" does not amount to any proof of the pleaded facts since the pleadings do not constitute evidence and evidence will be required to establish the pleaded facts.

The Appellants apparently appreciated that the deposition in paragraph 3 of the witness statement did not amount to proof of any fact, hence the deposition in paragraph 4 of the said witness statement on oath that the witness will during evidence in the case testify to all the pleaded facts. Unfortunately, the Appellants sole witness did not testify to prove the pleaded facts. He merely referred to the witness statement on oath and then documents were admitted in evidence. The testimony of the sole witness at page 3 of the Records shows thus…Interestingly, contrary to the Appellants' submissions, the Appellants sole witness did not even adopt the witness statement on oath as his testimony. Be that as it may, the lower Court was right when it held that the deposition in paragraph 3 of the witness statement on oath did not amount to proof of the pleaded facts. A fortiori, the witness failed to adduce further testimony as stated in paragraph 4 of the witness statement on oath to prove the pleaded facts. Without a doubt, the decision of the lower Court that there was no testimonial evidence led in respect of the pleaded facts is the correct decision.” [Emphasis mine]. It is thus clear from the above that a statement on oath merely repeating /confirming all the averments in a pleading will not amount to proof of such averments since pleadings do not constitute evidence. In the case of Sokoto v. INEC, supra particularly at page 601, Paras B-C, the Supreme Court held that pleadings do not have attributes so they need human being with the automation of the brain to express its content in open Court. The said statement on oath of DW is not of enough attribute to be taken to have sufficiently spoken to the averments in the statement of defence. The said statement on oath is not a testimonial of the pleadings but a mere repetition of the averment. This, I find that the statement on oath of DW though competent may not be sufficient enough to prove the facts averred.

30. On issue one, Claimant in this case vide his statement of facts have averred that after his eye accident and series of several medical intervention, he was issued with an inter-office memorandum dated November, 2014 titled “STOOD OFF LETTER” by which the defendant placed him on what was termed stood off for 42 months. In support of this he relied on Exhibit A10 Claimant has maintained in this case that “stood off” is unknown to law and the Nigerian labour laws. The defendant on its own part vide paragraph 9 of its statement of defence averred that the term ‘stood off’ is a concept and/agreement customary to construction Industry and that it occurs when a company does not have any job to engage her workforce but is desirous of retaining in her pool such number of workers that may be needed in the nearest possible time once the company secured a contract. The effect of the above averment of the defendant in paragraph 9 of the statement of defence is an assertion that the said stood off is a custom of the construction trade. By the provisions of Section 16 of the Evidence Act, 2011 (hereafter referred to as EA) a custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence. The alleged custom of stood off has not been shown to have been judicially noticed by a Superior Court of record in line with Section 17 of the EA. Thus, it has to be proven as a fact. See Section 18 of the EA. It has equally not achieved notoriety up to the stage where it would be judicially noticed by the Courts.

 

31. In the case of FBN Plc v.  Odeh [2015] LPELR-25683(CA)1@13, Para B, Ogunwumiju JCA (now JSC) held that it is trite that whoever alleges a banking custom must prove it. See also the case of Union Bank of Nigeria Ltd v. Nwoye [1996] LPELR-3388(SC)1@13, Paras A-A. Conversely, it is the duty of the defendant who is alleging ‘stood off’ as a custom of the construction trade to prove same. The defendant in this case has raised in its pleadings that the said stood off is a custom in the construction industry. The DW merely repeated the averments of the defendant concerning the said alleged custom and nothing more. Paragraph 10 of the statement on oath of DW which is a direct replica of paragraph 9 of the statement of defence states thus; “That adverting to paragraphs 18, 19 and 20 of the facts, the Defendant avers that the term ‘stood off’ is a concept and/agreement customary to construction industry. It occurs when there is a company does not have any job to engage her workforce but is desirous of retaining in her pool such number of workers that may be needed in the nearest possible time once the company is secures a contract” Apart from this paragraph in the statement on oath which I have earlier held to be insufficient to sustain the case of the defendant for the obvious reasons given before, there was no other thing put forward by the defendant in proof of the alleged custom. I do not know how that is a proof of the alleged custom. Section 18(2) of the EA provides thus; where the existence or the nature of a custom applicable to a given case is in issue, there may be given in evidence the opinions of persons who would be likely to know of its existence in accordance with Section 73. Section 73 of the EA provides thus;

1. When the Court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed are admissible.

2. The expression "general custom or right" includes customs or rights common to any considerable class of persons.

The evidence of DW in paragraph 10 of the statement on oath which is a mere repetition of paragraph 9 of the statement of defence would not in my view qualify as an opinion of a person who would likely know of its existence. Besides defendant who would want this Court to believe that the said stood off is a custom born out a concept/agreement in the Construction industry failed to put any such agreement or evidence of same before the Court. I am of the respected view that the custom of stood off has not been sufficiently proven in this case to be one applicable in the Construction industry.

32. Claimant in this case vide relief A contends that the said stood off is unknown to law, ultra vires and void. It is the law that an allegation of illegality cannot properly be raised in the reliefs as raising illegality in the reliefs without any pleadings supporting it amounts to taking the other party by surprise. See Trade Bank Plc v. Pharmatek Ind. P. Ltd [2020]8 NWLR (Pt 1725)124@154, Paras C-E;171, Para C. Claimant in this case vide his statement of facts pleaded the illegality and even gave particulars of the said illegality. The defendant vide paragraph 10 of the statement of defence averred that the employment is master-servant and can be terminated at any point but the defendant just chose stood off. There is no doubt that a master-reserves the right to terminate the employment of its employee at any time. However, termination is not the case in this instant. It is a ‘stood off. The defendant in my view can only place the Claimant on the said stood off if it was contemplated in the contract between parties. In the case of Keystone Bank Ltd v. Clarke [2020] LPELR-49732 (CA)1@24, Para A, the Court per Nimpar JCA, quoted with approval the decision in Olaniyan & Ors v. Unilag & Anor [1985]2 NWLR (Pt 9) 599 that just like other contracts, contract of employment’s creation and termination are subject to the general principle of contract. As such where the terms of contract are in writing, parties are bound by the express terms of their contract. The duty of Court in such instance is to interpret the terms of contract of the parties and give effect to it. See also the case of Omega Bank (Nig.) Plc v. O.B.C. Ltd [2005] 8 NWLR (Pt 928) 547. The Court in interpreting the terms of the contract between the parties must give the words their plain, ordinary and natural meaning where the words used are clear and unambiguous. In the case of Esset Petroleum Ent. (Nig) Ltd v. Petroleum Equalization Fund (Mgt) Board & Anor [2019] LPELR-47355 (CA)1@25-27, Para E, the Court held that the where the words used in a contract are clear, the operative words in it should be given their simple and grammatical meaning. See also the case of Adejumo v. Agumagu [2015] 12 NWLR (Pt 1472)1.

 

33. Claimant in this case have stated that he was not given a letter of employment by the defendant. The defendant in response vide the statement of defence averred that Claimant was given a letter of employment but he failed to pick it up. In support of which the defendant pleaded and relied on Exhibit M. Claimant vide paragraph 1 of his Reply to statement of defence reiterated his stance that he was not given the letter of employment and further averred that the said letter was sighted by him for the first time when the defendant frontloaded it with the statement of defence.  It is trite that by the state of pleadings, burden of proof is usually on the party asserting the positive or the affirmative. See the following cases; Ofodile v. Onejeme [2021]7NWLR (Pt 1775) 389@423, Paras E-F(SC); Obe v. MTN Nig. Comms. Ltd [2021]18 NWLR (Pt 1809)415@449, Paras A-C (SC) and; Nteile v. Irawaji [2021]16NWLR (Pt 1803)411(SC). The defendant is the one asserting that there is a letter of employment which Claimant was called to come and pick up but he refused to pick it up is the one affirming the positive and as such has the onus to prove same. The defendant in this case has not successfully discharged this burden placed on it by the state of the pleadings. It must be borne in mind that going by the provisions of Section 7 of the Labour Act, Cap L1, Laws of the Federation of Nigeria, 2004 (hereafter referred to as the Labour Act), it is the duty of every employer to not later than 3 months after the beginning of worker’s period of employment give an employee a written contract containing the terms and conditions of employment. See also the case of Nwakhoba v. Dunez (Nig) Ltd [2004]3 NWLR (Pt 861)461. It is obvious that the defendant in this case failed to give Claimant an employment contract embodying all the terms and conditions of his employment.

 

34. I have perused the said exhibit M and it shows that while Claimant did not sign the space provided for him to sign as an indication of the acknowledgement of the terms of the contract, an agent of the defendant signed for the defendant. Ordinarily, documentary evidence should be the best form of evidence. See the following cases; Skye Bank & Anor v. Akinpelu [2010] LPELR-3073(SC)1@39-40, Para E and; Agbareh v. Mimrah [2008]2 NWLR (Pt. 1071) 378@441. However, where same is not reliable or credible the Court will not rely on it. On the face of the said Exhibit M relied on by the defendant, the letter is dated 14/7/2021 but the signature of the officer of the defendant on it is dated 21/6/2011 which predates the letter. If I may ask, how can the letter be signed by the officer of the defendant before it was even made? Obviously, the credibility of such a letter is in doubt. This is a clear pointer to the fact that Exhibit M is a mere fabrication of the defendant, which was fabricated for the purpose of this case. I do not equally believe the assertion of the defendant that Claimant was called to pick up the letter but he refused because if Claimant failed to pick up the letter of employment as averred, then why did the defendant go on with the contract and retained Claimant in its employment for several numbers of years without Claimant picking up his letter of employment and signing same to indicate acceptance of it terms? Claimant has always been in the defendant’s employment physically rendering his assignment, the defendant has not contested this or asserted that claimant is a ghost worker, who could not be traced physically. It is in view of the apparent inconsistencies in the defendant’s assertion ditto the date on exhibit M, that I find without any equivocation that the claimant was not given any letter of employment when he was employed by the defendant. I so find and hold.

 

35. Assuming Claimant was even given the said letter, I am of the view that it cannot support the stance of the defendant on the stood off practice. I will proceed shortly to explain why. Thus, if Claimant was given Exhibit M it would have formed the basis of his relationship with the defendant. There is nothing in Exhibit M concerning the ‘stood off’ or that Claimant can be placed on stood off by the defendant. Exhibit M did not equally define or explain or import stood off into the contract between parties as stated earlier in this judgment. It is therefore safe to say that even if Claimant was given the said Exhibit M, stood off is alien to the relationship between parties. I do not lose sight of the right of employers and employees to enter into a collective bargaining agreement which would be incorporated into the contract. Although the defendant has averred that the custom is borne out of a concept/agreement, no such agreement has been placed before this Court as reasoned supra. There is equally no evidence to corroborate the alleged custom. In fact, DW while under cross examination on the 19^th day of January, 2022 when asked if there is any part of Exhibit M that provides for stood off answered that the stood off is an agreement between the union and the defendant to do that in order not to terminate the employment of a staff. However, no such agreement has been placed before this Court. The Court in absence of any such express agreement or any other evidence placed before it can not speculate as it is a Court of law and facts and not one given to speculations. See the cases of Agip (Nig) Ltd v. Agip Petroli International [2010]5 NWLR (Pt. 1187)348@413, Paras B-D (SC) and Ikenta Best (Nig) Ltd v. A.G. Rivers State [2008] LPELR-1476(SC)1@51, Paras D-D. Even if the said agreement was produced, it must be shown that Claimant herein is a member of the said Union that made the agreement with the defendant. The above has not been shown to be the state of things in this case by the defendant who has the onus to prove it being the person asserting it.

36. I am mindful of the contention of the defendant in the statement of defence that stood off is a specie of redundancy. Redundancy has been defined by both statutory and judicial authorities. Section 20 (3) of the Labour Act defines Redundancy as an involuntary and permanent loss of employment caused by excess manpower. In the case of Adibuah v. Mobil Oil (Nig) Plc [2015] LPELR-40987(CA)1@18-19, Para C, the Court per Oseji JCA (later JSC) of blessed memory explained redundancy thus; “Redundancy in service is a mode of removing an employee from service when his post is declared redundant by his employer. It is therefore not a voluntary retirement, nor is it a dismissal from service. It is also not a voluntary or forced resignation, nor is it a termination of appointment. Rather, it is a unique procedure whereby the employee is quietly and lawfully relieved of his appointment. As such, the conditions applicable to redundancy are quite distinct from those applicable to retirement or other modes of relieving an employee from active service, such as termination, compulsory resignation or dismissal.” See also the following cases; Gerawa Oil Mills Ltd v. Babura [2018]LPELR-44720(CA)1@19-20, Para A and Union Bank v. Salaudeen [2017]LPELR-43415(CA)1@36-37, Paras E-E. The above definitions were obviously alluded by defence counsel in paragraphs 2.7, 2.8 and 2.9 of the final written address of the final written address when he relied on the case of Union Bank of Nigeria v. Ariba, supra. It is clear from the abundant judicial authorities that redundancy is a form of involuntary permanent removal from office though different from termination, dismissal or retirement. The question that should be asked is whether the said stood off is a permanent removal as envisaged in redundancy. The question is undoubtedly in the negative because the said stood off upon a perusal of Exhibit A is a more like temporary suspension from ordinary duties though note disciplinary like suspension in the real sense of it. I am therefore of the view that the said stood off is not a specie of redundancy as the defendant would want the Court to believe as it is not within the contemplation of redundancy under the statutory or judicial authorities. I am thus of the firm view that the said stood off is unknown to our law and labour jurisprudence. Question one above is resolved against the defendant.

 

37. Learned counsel on behalf of the defendant had submitted vide his final written address that the said stood off letter that is Exhibit A10 represents a new term of employment between parties. He argued further that since the relationship is master/servant, stood off is not unlawful and the terms and conditions of the stood off were spelt out and accepted by the parties. First, it should be clearly stated that there is no evidence before the Court to evince that the claimant accepted any of the conditions stipulated in the purported stood off. Now, assuming but am not conceding that the claimant accepted the conditions in the stood off or the stood off itself, acceptance by the Claimant of the terms and payment of the said sum cannot justify the said stood off. In the case of Agbakoba v. INEC [2008]18 NWLR (Pt 1119)489@571, Paras C-D, the Supreme Court held that an unlawful act which illegality is being pursued in a judicial proceeding cannot metamorphose into a legitimate one by a plea of the defendant that the act has been completed. In the case of Passco Intl Ltd v. Unity Bank [2021]7 NWLR (Pt 1775)224@250, Paras D-F, the apex Court has held that a contract made ultra vires is void ab initio on the ground of illegality and that it is not the object of the contracting parties but the incapacity of the parties that void the contract. The Court went further that illegality in the law of contract is not co-terminus with illegality in the criminal laws as a contract may be illegal without involving any breach of criminal law at all. As such, a contract may be illegal notwithstanding that it has not breached any criminal law. The practice of stood off cannot be backed by any law or custom or any contract between parties and as held supra thus, this Court finds it ultra vires and illegal notwithstanding that it did not breach any criminal law. In view of all reasoned supra, I find that Claimant’s relief A succeeds.

 

38. I do not feign ignorance or claim not to see the case of Chiadikaobi Ogmor Obiaka v. Mife Construction Nigeria Ltd in Suit No NICN/PHC/59/2018 delivered on 23^rd October, 2019, the National Industrial Court Port-Harcourt Division per Hon Justice Z.M. Bashir which was relied upon by Claimant’s counsel in paragraph 3.1.5 of the final written address in respect of the legal effect of the said ‘stood off’. In the case of MT Sam Purpose (Ex MT. Tapti) & Annor v. Amarjeet Singh Bains & 6 Ors, unreported Suit No CA/ which judgment was delivered on the 5^th day of March, 2021, the Court of Appeal Lagos Division held that a Court is bound by its previous decision and can only depart from same where it has differentiated same from the present case. The Court in that case faulted the trial Court’s (Federal High Court) neglect of its earlier decision in the case of Assurance Foreningen Skuld (GJENSIDIG) v. MT Clover Pride & Palm Spring Global Limited, unreported Suit No FHC/C/L/CS/1807/2017 which was brought to its attention and which it failed to abide by without differentiating it from the one at hand. While it is settled that a Court is bound by its previous decisions but can depart from such where it differentiates it from the present case, it must be noted that such decision must be one that is properly brought before it. In the case of Ugo Ngadi v. FRN [2018] LPELR-43903(SC)1@22, Para D, the apex Court per Galinje JSC held thus; “Where a counsel cites a case that has not been reported, he owes the Court a duty to produce a copy of the judgment if he wants this Court to rely on such authority. Where copies of the judgment are not produced, the Court will have nothing to rely upon. The cases are yet to reach this Court, as such I will refrain from commenting on them.” Learned counsel in this case did not provide this Court with a copy of the decision of Port-Harcourt Division of this Court which has not been reported which he is citing and wants the Court to make use of as the current state of law as regard the said ‘stood off’. If Counsel had furnished this Court with a certified true copy of that judgment which he is relying on, the Court would have been able to trace the dictum of my learned brother which he is relying on as regard the said stood off. Counsel do not expect the Court to fish for the said judgment to buttress his case, that will put a slap on the face of justice. Besides cases are decided based on facts and circumstances and in application of the principles laid down in each case, the primacy of facts and circumstances of each case must be considered. Where the copy of the judgment is not before the Court, the Court will not be able to know how the said decision was reached and whether or not it is on all fours with the present. In view of the above, I will refrain from commenting on same as was wisely advised by my learned Senior brother of the Apex Court Galinje JSC in Ugo’s case supra.

 

39. Claimant claims vide his Relief B that the 50% deductions made from his basic salary by the defendant from November, 2014 to August, 2018 on the ground of stood off when Claimant was ready and willing to work but the defendant failed to provide work for him was unlawful and a breach of the Labour Act and therefore liable to be refunded. Claimant vide paragraphs 20-23 of the statement of facts averred that the defendant made stood off deductions from his salary in the sum of N35,000.00 for 46 months which deductions were not contained in Exhibit A10. He relied on Exhibit A11 which is a bundle of copies of his pay slips. The defendant vide paragraph 11 of the statement of defence averred that during the period in question, when Claimant was on stood off he never rendered any service to the defendant but was still paid and that it shall contend at trial that Claimant be ordered to refund all the payments made to him during those period which he rendered no service. It averred further vide paragraph 12 that stood off is a specie of redundancy and the Claimant is not entitled to anything except what the defendant elects to give him for there is no consideration or service flowing from the Claimant and that the payment made to Claimant is an award made ex gratia. The defendant continued that the Claimant was willing to work but the defendant had no work to be done and a stood off/redundancy is a mode of removal different from termination or dismissal.  Claimant in response vide paragraph 13 of his Reply to statement of defence denies the assertion that stood off is a specie of redundancy and that he was ready and willing to work during the period in question but the defendant provided him no work and as such all monies paid during those periods were legitimately earned and not liable to be refunded as claimed by the defendant. I have held supra that the said stood off is not a specie of redundancy under the law. I have equally held that the concept of stood off is unknown to law and has not been proven to be acceptable custom. It therefore means that it is an unlawful concept.

 

40. Learned counsel on behalf of the defendant had argued that an employee is not entitled to salary for work not done. While I agree that an employee is not entitled to salary for work not done, it must also be noted that it is the duty of the employer to provide work especially as regards employee of the category of Claimant in this case. Section 17 (1) of the Labour Act, provides thus; (1) Except where a collective agreement provides otherwise, every employer shall, unless a worker has broken his contract, provide work suitable to the worker's capacity on every day (except rest days and public holidays) on which the worker presents himself and is fit for work; and, if the employer fails to provide work as aforesaid, he shall pay to the worker in respect of each day on which he has so failed wages at the same rate as would be payable if the worker had performed a day's work: Provided that-

(a)where, owing to a temporary emergency or other circumstances beyond the employer's control (the period of which shall not exceed one week or such longer period as an authorised labour officer may allow in any particular case), the employer is unable to provide work, the worker shall be entitled to those wages only on the first day of the period in question; and

(b)this subsection shall not apply where the worker is suspended from work as a punishment for a breach of discipline or any other offence.

41. It is clear from the above captured provisions of the labour Act, that it is the duty of every employer to give its employee work when the employee presents himself for work and is fit to work except where the employee is on suspension. Thus, where an employer fails to provide work, he is liable to the employee for payment of wages at the same rate at which he would be paid if he was working notwithstanding that the employee did not work. However, where owing to temporary emergency, or other circumstances beyond the employer’s control is for a period which shall not exceed one week the employee shall be entitled to those wages only on the first day of the period. The defendant in this case vide paragraph 12 itself admitted that Claimant was willing to work but the defendant had no work to be done. Failure of the defendant to provide the Claimant work lasted for years beyond the maximum one week and there is no evidence that such longer period of years was authorized by an authorized labour officer of the Federal Ministry of Labour and Productivity. I am in agreement with the Claimant that the defendant was bound to give him work and where it fails, it is bound to pay Claimant and every payment made was earned. The above provision stipulates the rate at which the wages would be paid and which is the wages as if he was working. I have perused Exhibit A11, id est Claimant’s payslip relied on by the Claimant. It is clear from the said Exhibit that the defendant was deducting stood off from Claimant along with all other statutory deductions.

 

42. Section 5 (1) of the Labour Act provides thus: “Except where it is expressly permitted by this Act or any other law, no employer shall make any deduction or make any agreement or contract with a worker for any deduction from the wages to be paid by the employer to the worker, or for any payment to the employer by the worker, for or in respect of any fine.”. Deduction for withholding tax and pension deductions are permitted by the relevant laws since they are statutory deductions. Going by the above provisions of the Labour Act, the defendant in this case should have paid Claimant his full salary less statutory deductions like tax etal. Besides, Section 254 C (1) (f) and (h) of the Constitution of the Federal Republic of Nigeria ,1999 (as amended) hereafter referred to as “the Constitution” empowers this Court to apply international best practices in labour, Conventions, Treaties, Recommendations and Protocols ratified by Nigeria. By ILO Convention No 95 (the Protection of Wages Convention, 1949) which has already been ratified by Nigeria, the practice of unwarranted deductions is forbidden. Specifically, Article 8 provides thus;

1. Deduction from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreement or arbitration award.

2. Workers shall be informed, in the manner deemed most appropriate by the competent authority, of the conditions under which and the extent to which such deductions shall be made.

Thus, the said Convention only permits deductions when permitted by National laws or regulations or fixed by collective agreement. The defendant has not been able to convince or satisfied this Court with cogent and credible evidence that the deductions made based on Exhibit A10 is borne out of the provisions of a law or that such deductions was agreed by collective agreement. Learned counsel for the defendant had submitted that the defendant could have terminated the employment from the very date of stood off. Let me say that the right of an employer especially in a master-service employment as this to terminate the employment of its employee is unfettered. However, it should be noted that such right was not exercised in this case during the period in question. The defendant chose to waive its right to terminate claimant’s employment and still treat the employment as subsisting by its acts until it finally decided to end the relationship. In my view, it cannot escape liability of paying the Claimant salary during those periods for its unlawful acts.

43. Learned counsel for the defendant had argued that Exhibit A10 empowers the defendant to make such deductions. The apex Court in the case of Amuda v. FRN [2021]7 NWLR (Pt 1774)130@163, Para H held that illegality confers no right, if an act is void, it is void; it is in law a nullity and every proceeding founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stand. This Court being a Court of law and equity will not enforce or uphold such an illegal concept which has equally not been proven as a custom in the construction business based on the principle of ex turpi causa non oritur actio. See the following cases; Aghedo v. Adenomo [2018]13 NWLR (Pt 1636)264@303, Para A and; Huebner v. Aeronautical Ind. Eng [2017] 14 NWLR (Pt 1586)397. I have held that the said stood off is unlawful. It therefore means that the defendant cannot rely on it as the basis of making such deductions. In view of all the reasoning above, I find that the said deduction of stood off cannot be justified and as such Claimant is entitled to be refunded the deductions made from the claimant’s salary as stood off deductions. Accordingly, relief B succeeds.

 

44. I will take reliefs C and ‘I’ together for the obvious reason that they go hand in hand. Claimant vide relief C claims a declaration of this Court that the defendant’s decision to remit 50% statutory monthly pension contributions for 46 months is illegal, ultra vires. As reasoned supra, Exhibit A10 which is the stood off letter has been set aside for being illegal and unlawful. It is the said Exhibit A10 that purportedly empowered the defendant to remit only 50% of Claimant’s pension contributions to his PFA. I have held earlier that illegality cannot be the basis of an action and a person will be allowed by the Court to benefit from an illegal transaction or keep the benefit already gotten from an illegal transaction. See Amuda v. FRN, supra; Aghedo v. Adenomo, supra and; Huebner v. Aeronautical Ind. Eng, supra.  Thus, the deduction of 50% of claimant’s pension contribution by the defendant is unlawful. I so find and hold.

 

45. Claimant vide relief I claims an order of this Court directing the defendant to remit the 50% deductions made from his monthly contribution to the Claimant’s account for the period of 46 months. Claimant vide paragraph 22 of the statement of facts maintained that the defendant by the stood off elected to pay only 50% of his monthly pension contrary to clear provisions of the pension laws. The defendant vide paragraph 12 in response to the above paragraph merely averred that stood off is a specie of redundancy and the Claimant does not have any entitlement except the one the defendant gives him which payment were made ex gratia. Exhibits A11 no doubt shows that pension deductions were made. I have set aside the said Exhibit A10 which is the stood off letter and the basis of the said 50% pension contributions. Thus, it means that the defendant had no right to make any 50% deductions from the monthly contribution pension remittance as it did for the said period of 46 months which the stood off lasted. Claimant is entitled to 100% of his pension contributions and nothing less. By the combined effect of the provisions of Sections 3, 4 and 11(3) (a) and (b) of the Pension Reform Act, 2014, pension contributions are to be remitted mandatorily to employee’s Retirement Savings Account maintained with a chosen PFA. It is in the light of this that I find that the withholding of 50% of Claimant’s contribution by the defendant is unlawful. Consequently, I make an order that the defendant should remit the remaining 50% which it had deducted from the Claimant’s contribution into the Claimant’s chosen PFA Thus, relief C and I succeed.

 

46. Before I proceed to other reliefs let me address the contention of learned counsel on behalf of the defendant in his final written address that Claimant cannot validly raise the issue of compensation without joinder of the NSTIF because the NSITF is a necessary party without whom Claimant cannot raise the issue of compensation or claim reliefs based on compensation. Learned Counsel on behalf of the Claimant in response vide paragraph 5.2.6 of his final address submitted that Claimant’s action is premised on Section 12 of the ECA which allows Claimant to sue for compensation for breach of defendant’s duty to report his injury to NSITF. He also relied on order 3 Rule 12 (2) of the Rules of this Court. A Court is not competent over a matter where the necessary and proper parties are not before it. See Boye Ind. Ltd v. Sowemimo[2022]3NWLR(Pt 195@215, Paras G-A. A necessary party is also a person whose interest will be affected by the final judgment and in whose absence the matter cannot be determined and justice delivered with finality. See the following cases; Southbeach Co. Ltd v. Williams [2022]8NWLR (Pt 1831)147@184, Paras D-G; Unuigbokhai & Ors v. Aigbevboisa & Ors [2016] LPELR-40288 (CA)1@28, Paras A-B; Malittafi v. Modomawa & Ors [2016] LPELR-40775 (CA)1@25-26, Paras D-B. There is no doubt that for a Court to have jurisdiction all the necessary parties must be before it. A perusal of Claimant’s originating process and his statement of facts will show that Claimant’s main grouse as regard the compensation is the failure of the defendant to report his eye injury to the NSITF. Although the name of NSITF came up severally, this action can completely be decided in its absence because Claimant is not claiming that the NSITF committed any wrong against him but that the defendant robbed him of the opportunity for him to have gotten compensation from the NSITF. In view of all reasoned above, I find that the NSITF is not a necessary party to this action and Claimant can proceed with his claim for compensation without the NSITF. The question whether Claimant can succeed with the reliefs is another issue entirely but the reliefs can be claimed without the presence of the NSITF.

 

47. Claimant in his relief D claims a declaration that deductions made from his salary for NSITF contributions for 41 months is in contravention of ECA. He averred facts relating to the above in paragraph 27 of his statement of facts and relied on Exhibit A14. The defendant in response vide paragraph 14 of the statement of defence averred that what was deducted was pension which was remitted to Claimant’s account with his PFA. It relied on Exhibit M4. The provisions of Section 14 of the ECA is clear to the effect that no employer shall make deductions from the salary of its employee for the NSITF contribution of the employer. I have perused Exhibit A14 and it is clear that the defendant actually made deductions termed N.S.I.T.F which seems to be in contravention of the ECA. I have also perused Exhibit M4 relied upon by the defendant. The first page of the said Exhibit is a Pension registration certificate by the Claimant’s PFA, Stanbic IBTC but there is nothing in it to show that the sums deducted as NSITF were remitted to that account. The other pages of the Exhibit contain a statement of remittance from the custody of the defendant as seen in the heading which means that while the first page emanated from the Claimant’s PFA, the other pages emanated from the defendant.  There is no evidence in the said Exhibit M4 emanating from the Claimant’s PFA to show that the sums captured in the statement of remittance on the other pages of Exhibit M4 were actually remitted into Claimant’s account. The first page of Exhibit M4 is merely showing that Pension registration has been made in respect of Claimant, it does not show the sums captured in the statement of remittance are actually in the Claimant’s RSA as the defendant would want this Court to believe. In the absence of any evidence emanating from Claimant’s PFA showing that the said sums captured in the statement of remittance (which the defendant is alleging to be sums deducted as NSITF) has been remitted to Claimant’s RSA, I do not believe the assertion of the defendant. In view of all reasoned supra and the compelling evidence in Exhibit A14, I find that the defendant’s deduction of NSITF contribution from Claimant’s salary is in contravention of Section 14 of ECA. Thus, relief D succeeds.

 

48. Claimant in this case has sought reliefs E, F, and G concerning compensation for injury sustained in the course of work. By virtue of the provisions of Order 3 Rule 12 (2) and (3) an employee or his dependant may file an originating process in this Court seeking for compensation for injury sustained in the course of work provided an employee has not filed an appeal before the Board of NSITF under the ECA. Order 3 Rule 12 (4) goes further to list what a claim for compensation should contain. It provides thus;

(4) Where an employee or employee’s dependant files an originating process for compensation pursuant to sub-rule (2) of this rule, the employee or employee’s dependant shall clearly state in the originating process or statement of claim-

(a)the name and address of the employee;

(b) the name and address of the employer ;

(c) the place, date and time of the illness, disease, injury or death;

(d) the nature and cause of the death, injury, disease or illness ;

(e) the name and address of any specialist or accredited medical practitioner who attended to the employee;

(f ) the report(s) of the specialist or accredited medical practitioner who attended to the employee;

(g) copy(ies) of the report of the death, injury, illness or disease informing the employer of occurrence of death, injury or disease; and

(h) copy(ies) of the employee’s correspondence with the employer on the request for compensation and responses, if any.

A perusal of Claimant’s statement of facts, statement on oath and all the Exhibits tendered will show that the above listed requirements are contained in his action. Thus, Claimant has fulfilled the condition precedent for him to maintain these reliefs for compensation for work place injury. I will now go on to consider each of these reliefs.

49. Claimant vide relief E seeks a declaration that under the ECA, the defendant has a duty to report all injuries and deaths to its employees at workplace within the time stipulated in the ECA and the failure of the defendant to report the injury of Claimant sustained in the course of his duties is wicked and a breach of statutory duty. Going by the statement of pleadings in this case, it is not in dispute that Claimant had an accident by virtue of an acid explosion which affected his eye in the course of work with the defendant and was hospitalized and that the said injury was not reported to the NSITF. By the provisions of Section 4 of the ECA, an employee must notify his employer of injury sustained in the course of employment within 14 days of the occurrence and the information shall include his name, time and place of the occurrence and the cause of the injury. Section 4 (4) of the ECA goes further that failure of the employee to give the above information shall be a bar to compensation unless the Board is satisfied of some certain things. Claimant in this case averred that immediately he sustained the injury he notified his immediate superior who in turn informed their superior. These facts were equally stated in the statement on oath of Claimant. In fact Claimant reiterated this fact under cross examination on the 22^nd day of November, 2021 when he answered “Yes” when he was asked if he reported the accident to the defendant. In the same vein, DW while under cross examination answered that he was aware of the Claimant’s accident/injury. Claimant relied on Exhibit A which is the Staff Clinic referral form which contains the details of Claimant and a concise statement of the state of Claimant when he was brought in. It is therefore clear beyond doubt that Claimant did the needful and informed his employer as mandated him by the ECA.  Thus the duty placed on the Claimant by the ECA has been discharged.

 

50. Claimant pleaded vide paragraph 26 of the statement of facts that the defendant willfully refused to report his injury either to the Occupational Health Office, Rivers State where the injury occurred or the Board of NSITF within 7 days as stipulated under the ECA. Section 5 of the ECA imposes a duty on an employer to report to the Board of NSITF and the nearest office of the National Council for Occupational Safety and Health in the State within 7 days of the occurrence of the injury on its employee. The operative word in Section 5 (1) of the ECA is the word ‘shall’. In the case of Faran v. Kano [2017]LPELR-43626(CA)1@13 Para. B the Court held thus; “The Apex Court in Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 365 at page 412 has held that:- “Generally, when the word 'shall' is used in a statute, it is not permissive. It is mandatory. The word "shall" in its ordinary meaning is a word of command, which is normally given a compulsory meaning because it is intended to denote obligation.” See also the case of TABIK Investment Ltd & Anor v. GTB [2011]LPELR-3131(SC)1@11-12,Para F. It is thus clear that the word shall connotes compulsion. As such, the duty imposed on the employer by Section 5(1) of the ECA is a mandatory one which does not give room for the exercise of discretion.  This is because of The law is of common that, if an enactment bestows on a particular person or authority the power to do a specific duty, it is only that person or authority, and none other, that can perform the assignment before it will receive the imprimatur of the law. See Section 10(1) of the interpretation Act, Laws of the Federation of Nigeria, LFN 2004 and the following cases; Balonwu v. Gov. Anambra State [2008] 16 NWLR (Pt. 1113) 236 and; UBN v. Ayodare & Sons (Nig) Ltd. [2007] 13 NWLR (Pt. 1052)567. The defendant in this case has not in its pleadings averred that it reported the said injury to the NSITF Board River State Occupational Health Officer as mandated by Section 5 of the Act. It is thus clear that the defendant has breached the statutory duty placed on it by Section 5 of (1) of the ECA. In view of this, I find that relief E succeeds.

 

51. I will take reliefs E and F together. Claimant in this case vide paragraph 4 of the statement of facts averred that the defendant never issued him with any Personal Protective PPE relevant to his filed of work to protect him from hazards and accidents associated with his field of specialization. This was also in his written statement on oath which forms his oral evidence. The defendant in response averred that it denies the said assertion and put the Claimant to the strictest proof and it is its usual practice to issue protective Equipment to her workers on yearly basis and that Claimant got he needed to prosecute his job diligently. As reasoned supra, the burden of proof is on the person asserting the positive. See; Ofodile v. Onejeme,supra and Obe v. MTN Nig  Comms. Ltd,supra. The burden is on the defendant who is asserting that Claimant was given all he needed to prosecute his job diligently. The burden is on the defendant who is asserting that Claimant was given all he needed to prosecute his job diligently. Paragraph 5 of the statement on oath of DW alone which is a mere repetition   of paragraph 4 of the statement on oath is not sufficient to prove its assertion and to discharge this burden for the reasons earlier given in this judgment.

 

52. It is now settled 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; SCC (Nig) Ltd v. Anya 1305213@230, Paras E-F; Avon Crown Caps & Containers Nig. Ltd v. Bamigboye [2005]17 NWLR (Pt. 954) 275. In Iyere v. Bendel Feed and Flour Mill Ltd [2008] 18 NWLR (Pt. 1119) 300, Muhammad, JSC put it thus: “The general requirement of the law where there exists a service relationship between employer and employee is that the former is under a duty to take reasonable care for the safety of the latter in all the circumstances of the case so as not to expose him to an unnecessary risk. ... The level of this duty is the same as that of the employer's common law duty of care in the law of negligence.” In fact, in the case of Afrab Chem v. Owoduenyi [2014]LPELR-23613(CA)1@36-37Para. E, the Court held that the fact that employee accepted the work or continued to do the work will not be a defence to the employer. The defendant in this case has not been able show that it provided the Claimant with PPE to enable do his job. The Court in the case of Kabo Air v. Mohammed [2014]LPELR-23614(CA)1@49-50, Para A held that “The law states that an employee alleging negligence on the part of his employer need not strictly prove that the breach of duty of care was directly responsible for his injuries and that it is sufficient if he shows that it materially contributed to his injuries…”  Although failure to provide PPE for Claimant may not be the major cause of the injury, it no doubt contributed to the level of injury suffered by Claimant because had Claimant had his PPE on when the accident occurred the effect would have been minimal.

 

53. Section 7 of the ECA provides that an employee whether in or outside workplace who suffers disabling injury in the course of employment is entitled to compensation. Section 12 (1) and (2)of the ECA goes further that the benefits under the ECA 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 the duty is expressed on implied to which an employee or his dependant may be entitled to against the employer and which conduct of the employer which caused the breach must have arisen in the course of employment. In the case of Udemba v. Nwabueze [2016]LPELR-41314(CA)1@, the Court held thus as regard the meaning of the the phrase ‘in lieu’; “Accordingly, the Learned Counsel for the Appellant and in line with the definition of the term "in lieu" by Black's Law Dictionary Ninth Edition at page 558 (see also page 791 of the Seventh Edition) has rightly submitted that it means: "Instead of or in place of: in exchange or return for.” Thus applying the definition to Section 12 of the ECA above, it means the benefits under the ECA including that of compensation for an injured employee is in place of the right of action founded on breach of duty of care whether express or implied by the employee or his dependants against an employer for the breach that occurred in the course of employment meaning that an employee can not maintain a right of action for breach of duty of care against his employee after he has been adequately compensated under the ECA. As rightly submitted by learned counsel for Claimant in his final written address where the benefits cannot be claimed, then the employee can exercise his right of action against the employer.

 

54. The defendant in this case has breached its duty of care to the Claimant to make the work place safe for him. In the same vein a perusal of the bundle of documents that make up Exhibit A21 particularly the letter written by the NSITF dated 17 April, 2019 show that the NSITF failed to consider the case of the Claimant for compensation because the interface of the defendant. It states clearly that the defendant had informed NSITF that it was not aware of the severity of Claimant’s injury as no further complaints were reported after he was treated and that the injury was not reported to it nor application file to the NSITF within the specified time and the time lapse before Claimant came to report the injury. Although DW had stated under cross examination that the defendant reported Claimant’s injury to NSITF, it is clear on the face of the above letter dated 17 April, 2019 that the defendant did not report any such thing contrary to DW’s testimony.  It is trite that oral evidence cannot discredit clear contents of a document except fraud is pleaded. See Ayemwenre v. Evbuomwan [2019]LPELR-47213(CA) 1 @37-39, Para F; Egharevba v. Osagie [2009] 12 SC (Pt. III) 123. In fact the defendant in its statement of defence never at any time aver that it made a report to the NSITF. Thus, the testimony of DW under cross examination stating that the defendant reported Claimant’s ailment is of no evidential value.

 

55. Although the time within which the application was made in this case is outside the 1 year and 3 years grace window contained in Section 6 of the ECA is one of the reasons why Claimant’s case was not considered, a perusal of the above letter will show that the basic reason for the denial of Claimant the appropriate benefit is due to the interface of the defendants.It is bad enough that the defendant refused to report the injury as mandated by him in the ECA. It equally went further to say that it was not aware of the severity of Claimant’s accident. The DW while under cross examination when asked if he was aware that Claimant had an accident which affected his eyes answered in the affirmative. The defendant had averred vide its statement of defence that Claimant had an eye ailment that was not attended to prior to the explosion and that it shall place reliance on Claimant’s medical record. However, the defendant did not place before this Court any cogent or credible evidence in proof of its assertion that Claimant had an underlying eye ailment before the acid explosion. Although DW tried to lead evidence along this line under cross examination when he stated that Claimant was attending hospital for another medical condition but not due to the accident he had but he also stated that he would not know if Claimant had any other medical condition. Then it means the DW was just basing his evidence on speculations which has no place in this Court. In fact the same DW admitted also under cross examination that the defendant has a policy before engaging an employee and which procedure Claimant also went through which in my view is in compliance with Sections 8 and 28  of the Labour Act. He also admitted that Claimant was certified medically fit for employment and there was no medical issues with Claimant’s eyes. Learned counsel for Claimant had relied on this in his final written address. Claimant could rightly rely on it as evidence given under cross examination which goes to support the case of the party cross examining is evidence is as potent as evidence in chief. See Shmo& Ors  v. Abuul [2020] LPELR-49947(SC)1@42-43, Paras A-A. In the absence of any evidence that Claimant had any other eye ailment and in view of the testimony of DW to the effect that Claimant was medically fit and without any issue when he was employed, I am of the view that the acid that poured on Claimant’s face has everything to do with the current states of Claimant’s eyes in the several medical reports tendered that is Exhibits A2, A5, A9.

 

56. I am mindful of the submission of learned defence counsel in his final written address that there is no evidence that Claimant has become blind. In fact he submitted that by the WHO standard Claimant’s report in Exhibit A9 6/12 in the right eye is considered good while the 66/6 in  left eye is normal vision. Learned Counsel has not referred the Court to which of WHO reports or publication made these observations. The said Exhibit A9 clearly stated that Claimant had blurriness in vision and has had an history with battery explosion. It equally stated that there was a diagnosis of dry eye syndrome secondary to chemical injury and refractive error. This alone is enough for anyone to know that Claimant’s eye as at when the report was given was not perfect and that he has had an eye defect related to chemical injury contrary to what learned counsel would want this Court to believe. Need I say that the Claimant does not need to go blind before his eyes can be said to be bad. In fact there is no such requirement that an employee has to go blind before he can maintain an action against his employer for breach of duty of care. Also whether the Claimant’s eye is now perfect is not an important consideration. The important thing is that at the relevant period the employer breached his duty of care to Claimant and also breached his statutory duty to report Claimant’s injury to NSITF which has contributed in the denial of compensation for Claimant. The defendant can not therefore escape liability for the breach of these duties especially where the breach has affected Claimant adversely. In the exercise of the powers given me under Section 19(d) of the National Industrial Court Act, I award the sum of N1,000,000 as compensation .  Accordingly Claimant’s reliefs F and G succeed.

 

57. Now to relief H wherein Claimant is claiming the sum of N1,610,000 as unlawful stood off deductions. Claimant pleaded facts in support of this in paragraph 21 of his statement of fact wherein he averred that the defendant made an average deduction of N35,000 from his salary monthly as stood off deduction. The defendant vide paragraph 12 of its statement of defence merely averred that the stood off is a specie of redundancy and that the payment made was made ex gratia. The law is settled that monetary claims are in the realm of special damages that must be specifically pleaded and strictly proved. See the following cases; Ajigbotosho v. RCC [2018]LPELR-44774(SC)1@16, Para E; Eneh v. Ozor & Anor [2016] LPELR-40830(SC)1@14-16, Para E and; NNPC v. Clifco Nig. Ltd [2011]4 SCM, pg 194@217-218. In the case of NBC Plc v. Ubani [2014]14 NWLR (Pt 1398)421@475, Paras D-E, the apex Court held that  claims of special damages must be specifically pleaded and particularized and it is further expected as a matter of law that the Plaintiff should prove the heads of claims of exactitude. However, in the absence of denial only minimal proof is required.  Thus a claimant must particularize each head of claim and specifically plead with distinct particularity how he came about the quantum of the sum Claimed. The Claimant merely averred in paragraph 21 that an average of N35,000 was deducted from his salary  for forty-six months  November, 2014 to August 2018 as stood off deduction and relied on Exhibit A11. That cannot amount to particularizing each head of claim with exactitude and distinct particularity. Also the Claimant did not plead the said sum of N1,610,000 being claimed. He merely pleaded that a deduction of N35,000 per month for 42 months without pleading specifically the sum of N1,610,000 claimed. It is not the business of the Court to start calculating for Claimant if the said deduction of N35,000 per month for 46 months will give the sum of N1,610,000 claimed. In the case of Trade Bank Plc v. Pharmatek Ind. P. Ltd, supra particularly at 169, Paras D-F;170, Paras G-H, the apex Court held that relief sought in an action does not constitute facts averred in the pleadings and that reliefs claimed must be based on substantive averments of facts in the pleadings. See also the case of Ishola v. UBN Ltd [2005]6NWLR (Pt 922)422. Thus, the Claimant claiming the said sum of N1,610,00 as relief does not amount to pleading the said amount specifically. He has not pleaded the said sum specifically or how he came by the quantum of the sum claimed. Failure of the Claimant to plead the said sum of N1,610,00 in his statement of facts specifically is fatal to his case.

58. In the same vein, a perusal of Exhibit  A11 shows that the defendant did not deduct the same amount in each of the months contained in Exhibit A11. In fact, Exhibit A11 shows that different amount per month from N20,561.48 to N35, 058.45 for the months shown in Exhibit A11 contrary to the average of N35,000 per month pleaded by Claimant. In fact, Exhibit A11 which Claimant is relying on does not show deductions for the whole of the 46 months. In fact Exhibit A11 only shows deductions for 12 months out of the said 46 months claimed by Claimant.  There was no explanation from the Claimant for those missing months. As such Exhibit A11 relied upon by Claimant does not support the sum of N1,610,00 claimed by Claimant as stood off deductions for 46 months. It is in the light of this and all reasoned supra that I find that Claimant’s relief H fails.

 

59. I will take the reliefs J and K together. Claimant vide relief J is claiming the sum of N1,195,777.82 being the 50% basic salary that  was deducted from Claimant’s salary for 46 months while he claims the sum of N123,000 unlawfully deducted from his salary as contributions for NSTIF from June 2011 to October, 2014 contrary to the provisions of ECA            . Although I have found that the defendant actually made deductions on these headings.       I have equally set aside the stood off letter which enabled the payment of only 50% salary to Claimant for obvious reasons discussed earlier. In the same vein I have declared that the deduction of the NSITF contributions is in contravention of the ECA Act and thus unlawful.  However, it must be noted that monetary claims as reasoned earlier are in the realm of special damages that must be pleaded with distinct particularity and strictly proved. See; Ajigbotosho v. RCC, supra; Eneh v. Ozor & Anor, supra; NNPC v. Clifco Nig. Ltd, supra. Claimant merely pleaded facts relating to the two reliefs in paragraphs 22 and 27 of the statement of facts respectively. That can not in any way amount to specifically pleading the said sum and how he came about the quantum of the sums claimed. Also it is that reliefs do not constitute pleadings. See the case of Trade Bank Plc v. Pharmatek Ind. P. Ltd, supra. There was nowhere in the pleadings of the Claimant where either the sum of N1,195,777.82 and N123,000 claimed in reliefs J and K respectively were pleaded.  Claiming the said sums in reliefs J and K respectively cannot amount to pleading the said sums. Accordingly reliefs J and K fail.

 

60. Claimant vide relief K claims for exemplary damages against the defendant. There is no doubt that exemplary damages is punitive. Let me quickly point out here that exemplary damages are usually awarded whenever the defendant's conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like warranting some additional sanction. See the following cases; First Bank v. AG federation & Ors [2018]LPELR-46084(SC)1@50-52, Para D and FBN & Ors v. Chukwu [2018]LPELR-45148(CA)1@24-25, Para A. Thus it can be awarded in addition to the normal compensatory damages. In the case of Odogu v. Attorney General of the Federation & 6 Ors [1996] 6NWLR (Pt 456 )509@519-520, the apex Court held that Exemplary damages must be specifically claimed and proved before it is awarded. Defendant in this case has acted in arbitrary manner ranging from arbitrary deduction from Claimant’s salary to  its failure to make necessary report of Claimant’s injury. Such acts are liable to be punished. It is in view of this that I award the sum of N200,000 against the defendant as exemplary damages.

 

61. Claimant in his last relief N claims for cost of action tough not assessed. He passed the burden of assessment to the Court. Judicial authorities especially by the apex Court have restated the position that a successful party is entitled to cost which he should not be denied except for good reasons. See the following cases; Cappa and Dalberto (Nig) Plc v. NDIC [2021]9 NWLR (Pt. 1780)1@ 14, Paras G-H and; of Saeby v. Olaogun [1999] 10-12 SC 45@59. The apex Court per Odili, J.S.C  in the case of in Mekwunye v. Emirates Airlines, supra; [2019] LPELR-46553(SC) Pp. 67-73, Para E was quite emphatic when it took the view that cost including cost of action is statutory and not based on pleading of the parties or strict proof before the Court  to determine whether or not to grant same and that the Court of Appeal in that case was wrong to have held that the award of cost by the trial Court amounted to granting special damages not proved. The apex Court in that case held that by the provisions of Order 25 Rules 2 and 7 of the Federal High Court (Civil Procedure) Rule 2009, the power of the Federal High Court to grant cost is discretionary and which discretion cannot be interfered with by the appellate Court except and unless the award is manifestly excessive or too low. This Court has similar copious provisions as that of the Federal High Court relied upon by the Supreme Court in Mekwunye’s case. The Rules of this Court, particularly Order 55 Rules 1,2,3,4 and 5 empowers the Court to grant costs of action at its own discretion. In view of the number of appearances in this case and the volume of processes filed by the claimant who is successful in most part of his claim, I in my discretion award the sum of N 200,000 as cost of action in this case in favour of the Claimant.

Judgment is accordingly entered.

 

 

                                                                                    Hon Justice O. O. Oyewumi

                                                                                                Presiding Judge