Onifade Timothy Oluwatoyin -VS- Ibadan Electricity Distribution Company Plc & 2 Ors.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS

DATE: 19TH MARCH, 2019 SUIT NO: NICN/AB/08/2015

BETWEEN

Onifade Timothy Oluwatoyin - Claimant

AND

1. Ibadan Electricity Distribution Company Plc

2. Nigerian Electricity Liability Management Company Ltd - Defendants

(Power Holding Company Plc)

REPRESENTATION

J. O. Ogunwale for the Claimant.

J. O. Ebiteh with N. H. Gudy for the 1st Defendant

Joseph Adeoye with Bolaji Agoro for the 2nd Defendant

JUDGMENT

1. Introduction & Claims

By his Amended General Form of Complaint & Statement of Facts dated and filed 17/6/16, the Claimant sought the following reliefs against the Defendants -

1. Negligence for the failure of your company to put off the 11KVA live cable in safe condition to prevent it from been(sic) harmful =N=50,000,000.00 (Fifty Million Naira).

2. Cost of pains suffered, burnt, serious bodily injuries and amputation of hands =N=50,000,000.00 (Fifty Million Naira).

3. Loss of enjoyment of life amenities =N=250,000,000.00 (Two Hundred and Fifty Million Naira).

4. Permanent disability =N=500,000,000.00 (Five Hundred Million Naira).

Total Claim = =N=850,000,000.00 (Eight Hundred and Fifty Million Naira).

5. And also an interest on such damages at such rate for such period as the Court shall think just.

6. Cost of litigation as assessed by the Honourable Court.

Accompanying the Form 1 & statement of facts are list of witnesses, deposition of the witness, list and copies of documents to be relied on at trial. On 9/6/16, the 1st Defendant entered an appearance and filed its statement of defence in which it denied liability to the Claimant for any of the reliefs sought. All requisite frontloaded processes also accompanied the defence filed by the 1st Defendant.

2. Defence and Counter claim

The 2nd Defendant entered a conditional appearance, filed a statement of defence on 24/2/17 and sought against the Claimant -

1. An order of this Honourable Court dismissing the Claimant's action on the ground that it is frivolous and abuse of the process of this Court having been borne out of malice and desire to use the process of the Court to the annoyance and irritation of the 2nd Defendant.

2. =N=5,000,000 (Five Million Naira only) being special damages for professional fees paid for legal services by the 2nd Defendant.

Claimant filed a reply to the defence processes of the 1st and 2nd Defendants on 28/6/16 and 24/3/17 respectively.

3. Case of the Claimant

Claimant opened his case on 21/11/18 when he testified in chief as CW1, adopted his witness deposition dated 15/9/15 as his evidence in chief. CW1 also adopted his depositions of 28/6/16 and 24/3/17 as his additional and further evidence in chief respectively and tendered 18 documents as exhibits. The documents were admitted without objection and marked as Exh. C1-Exh. C18 respectively.

The case of the Claimant as revealed from his evidence in chief is that he had been a contract staff of both the 1st & 2nd Defendants since 7/6/08 and that PHCN has metamorphosed into 2nd Defendant; that his appointment with the Defendants was confirmed by a letter dated 9/6/15; that the Defendants are in charge of electricity supply, power distribution, erection of electricity cables throughout Ogun State as well as proper maintenance, erection, supervision, inspection of cables in order to prevent danger to lives of staff and members of the public; that on 3/11/10 the Claimant in company of other staff of the Defendants were mandated to close up power along Lagos-Abeokuta Expressway under 11KVA feeder; that all necessary approvals and permits were obtained to shut down power before proceeding to the site of work; that an operating rod was used to confirm the outage granted which is procedural before commencement of work on the closure of the power; that while at the site of job description and working on the closure, he had an electric shock; that he was treated at different medical facilities; that the electric shock was caused by the negligence of the Defendants; that the electric shock resulted in the amputation of his both hands; that he could have been able body but for the negligent act of the Defendants; that all the injuries, pains and loss of life amenities are caused by the negligence of the Defendants; that the Defendants terminated his appointment by letters dated 2/9/13 & 21/9/13 and that although he was paid severance benefit, the Defendants did not pay him compensation for the permanent disability he suffered while working with them.

Under cross examination by both the 1st and 2nd Defendants' Counsel, Claimant stated that he was aware that the power sector was privatised; that as a result of that all staff of PHCN including himself were disengaged; that after privatisation, 1st Defendant engaged its own staff; that he was not engaged by the 1st Defendant because of his disability and that he has never worked for the 1st Defendant. Witness added that he used to be a contract staff of PHCN; that his employment was regularised subsequently; that he was an experienced staff before the accident occurred; that PHCN was controlling Ibadan as at the time of the accident; that he was granted permission to shot down the transformer where the accident occurred by the PHCN; that after about 20 minutes of working on the main line, the electric current flow that is electricity current was restored on the transformer and the main line; that he was disengaged by the 1st Defendant and his severance benefit paid except his disability pay; that he could not say if the Federal Government is the shareholder of the 2nd Defendant; that staff were always given instruments to protect themselves while working but that the protective gadgets are only useful provided there is no supply of electricity while working.

4. Case of the Defendants

On 26/11/18, 1st Defendant entered into its defence. It called one Mrs. Foluke Adedayo as its lone witness. DW1 adopted her witness statement on oath dated 22/2/18 as her evidence in chief and tendered one document as exhibit. The document was admitted without objection and marked as Exh. D1. The case of the 1st Defendant is that it has no relationship whatsoever with the Claimant; that Claimant was not the employer of the Claimant and did not disengage the Claimant. 1st Defendant denied any form of liability to the Claimant.

Under cross examination, DW1 testified that the privatisation of the Power Holding Company of Nigeria was completed on 31/10/13 and 1st Defendant took over on 1/11/13; that the accident involving the Claimant occurred before the completion of privatisation and that both non-core assets and liabilities of staff were transferred to the 2nd Defendant. While being cross examined by the 2nd Defendant, witness added that he was employed on 15/9/14 by the 1st Defendant; that he read the order mentioned in paragraph 7 of his oath of 22/2/18; that he read Exh. D1; that he knows that the Ministry of Power and Bureau of Public Enterprises are part of the shareholders of the 2nd Defendant; that the 1st Defendant did not engage the Claimant at all; that Ibadan Electricity Distribution Company (not Plc) has always been in existence as an administrative purpose of Power Holding Company of Nigeria (PHCN) and that it is quite different from 1st Defendant which is a public limited company. 2nd Defendant elected not to call evidence and on 27/11/18 closed its case and the matter adjourned for learned to file their final written addresses in accordance with the Rules of this Court.

5. Submissions of learned Counsel

In the final written address of the 1st Defendant filed on 17/1/19 learned Counsel set down the following lone issue for determination -

Whether on the evidence before the Court, the 1st Defendant is liable to the Claimant's claims.

Arguing this lone issue, learned Counsel submitted that the Claimant is not known to the 1st Defendant; that the Claimant had no relationship with the 1st Defendant and that the Ibadan Electricity Distribution Company Plc that disengaged the Claimant is not the same as the 1st Defendant and that it was the 2nd Defendant that inherited the staff liabilities of the defunct PHCN. Counsel cited Exh. D1 which is the Memorandum & Articles of Association of the 2nd Defendant which showed that 2nd Defendant was incorporated to assume and administer the stranded debts of PHCN and to assume and to manage the pension liabilities of the employees of PHCN. Counsel further cited Section 8, Electric Power Sector Reform Act Cap. E7, Laws of the Federation of Nigeria, 2010 and pray the Court to dismiss the case of the Claimant as respect 1st Defendant.

On 29/1/19 a final written address was filed on behalf of the 2nd Defendant. In it, learned Counsel set down 2 issues for determination as follows -

1. Whether the claims of the Claimant are competent before this Court and same not caught by the provisions of Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004 as to confer this Court with the requisite jurisdiction.

2. Whether considering the state of the pleadings and evidence before the Court, the Claimant has successfully proved his claims and entitled to Judgment against the 2nd Defendant.

Arguing these issues, learned Counsel submitted that the 2nd Defendant is an agency of the Federal Government and is protected by the Public Officers Protection Act, Cap. P41, citing Adeoye v. Nigerian Security and Minting Company Limited (2009)5 NWLR (Pt. 1134) 322; that the accident which forms the basis of the case of the Claimant occurred according to the Claimant on 3/11/10 while he filed the present action on 15/9/15 an interval of about five years and that under section 2(a), Public Officers' Protection Act, Claimant had 3 months within which to seek redress in Court. Counsel prayed the Court to dismiss this suit on this ground of failure to comply with the limitation period set by the statute.

On 8/2/19, learned Counsel to the Claimant filed an 8-page final written address and set down 3 main issues for determination as follows -

1. Whether the Claimant is an employee of the 1st and 2nd Defendants.

2. Whether the Defendants have defence to the Claimant's claim.

3. Whether the Claimant is entitled to the claim before the Court.

Counsel submitted that the accident involving the Claimant occurred in 2010; the 2nd Defendant was incorporated in 2011 and that the Claimant was disengaged in 2013; that 2nd Defendant in fraudulent disregard of the Employee Compensation Act, 2010 failed to pay the compensation due to the Claimant and that it cannot hide under the protection afforded by the Public Officers Protection Act citing Hassan v. Aliyu (2010)17 NWLR (Pt. 1223)547. It was the argument and submission of Counsel that the 2nd Defendant could not hide under the protection of the Public Officers Protection Act '' ... until the payment under Section 23 of teh Employee Compensation Act is paid, which is fraudulently held by the 2nd Defendant''. Counsel submitted further that 1st Defendant did not deny the claims of the Claimant and must be deemed to have admitted same, citing Nwabuoku v. Ottih (1961)1 NMLR 470 at 487; that 2nd did not call evidence in support of its pleadings and must be deemed to have abandoned same citing Okechukwu v. Okafor (1961)2 SCNLR 369. Learned Counsel prayed the Court to grant the reliefs sought by the Claimant.

6. Decision

I patiently read and understood all the processes filed by the learned Counsel on either side; listened attentively to the testimonies of the witnesses called at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted in the course of trial. I also heard the oral submissions of Counsel at the address stage of this proceedings. Having done all this, I identify 2 main issues for the just determination of this case as follows -

1. Whether the case of the Claimant is barred by the provisions of the Public Officers Protection Act, Cap.P41, Laws of the Federation of Nigeria, 2004.

2. Whether the Claimant is entitled to damages for his injury.

I opt to make a brief review of the facts of this case before proceeding to examine the issues set down for determination. The Claimant was a staff of the old and defunct Power Holding Company of Nigeria (PHCN) the unbundling of which company led to coming into being of different companies to take over different responsibilities and functions of the PHCN. Both Defendants in this case are part of those companies which emerged from the unbundling. On 3/11/10, the Claimant along with other staff was mandated to close up power along Lagos-Abeokuta Expressway under 11KVA feeder. Necessary permit and approvals having been given, Claimant commenced work as customary. However suddenly, electricity which had been turned off the feeder was restored resulting in electric shock to the Claimant. First aid treatment was administered on the Claimant. His 2 arms were subsequently amputated. Efforts were made to ensure the Claimant received the best of medical attention and was indeed to be flown out to India for prothesis limbs. Claimant remained in the services of the Defendants until when his employment was terminated with effect from 31/10/13 by a letter dated 21/10/13. According to the Claimant, all his terminal benefits were paid but he was not paid any compensation for the injury he sustained as a result of the incident of 3/11/10. This action is essentially to claim damages for negligence of the Defendants respecting the injury of the Claimant. This suit was filed on 15/9/15.

Is this case negatively affected by the Public Officers Protection Act to oust the jurisdiction of this Court in hearing and determining same as argued by the learned Counsel to the 2nd Defendant?

A challenge based of statute of limitation constitutes a challenge to the jurisdiction of the Court to hear and determine a cause or matter. Issue of jurisdiction once raised, it is imperative that it be resolved one way or the other. Jurisdictional issue is a fundamental and critical issue. It is a challenge that can be raised at any point in the cause of the proceedings. It may even be raised on appeal. In any event, jurisdiction is not an issue of fact. It is one of law. That being the case, it can even be raised by a trial Judge suo motu the only proviso being that a trial Judge must allow parties to proffer their addresses on same before delivering a Ruling. The reason being that a challenge of jurisdiction goes to the very root and foundation of the case before the Court and where jurisdiction is absent every effort dissipated in hearing a case amounts to efforts in futility. This is irrespective of the genuine intention, diligence and erudition of the trial Judge.

A case is said to be barred by the statute if it is not brought and instituted within the time limit statutorily allowed to institute such an action. In a scenario as this, though the right of a party suing is there, it can however not be enforced through the judicial process. To determine whether or not a case is or is not barred by a statute, two critical points must be established. Firstly, the provision of the statute must be established as to the class of suits and the duration or time limit permitted. Secondly, the time when the suit concerned is instituted must be established so as to determine whether or not it comes outside the time limit.

Now section 2(a) of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004 provides as follows:

'Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect -

a. the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof'.

The purport of the above provision is that all actions against public officers must be instituted within three months failure to do which the right to ventilate same through the judicial process is extinguished, see Christiana Yare v. National Salaries, Wages and Income Commission (2013) LPELR 20520 (SC). Where an action is instituted outside the time allowed by the statute, the Court which hitherto had jurisdiction to hear and determine same is automatically divested of that adjudicatory power. In much the same vein, the right available to a Claimant or Plaintiff in such a situation is one that cannot be enforced through the judicial process.

Now, the next critical point to consider is whether or not this suit is caught by the said statute being a statute of limitation. In determining whether or not a case is not caught by a statute of limitation, the starting point is the examination of the date the cause of action arose vis-a-vis the date the suit was instituted. The appropriate focus is certainly the statement of facts in the instant case. Now, when did the cause of action in this case arise? A cause of action arises the day a party is entitled under the law to approach the Court for redress against an alleged wrong committed by the other party. By the statement of facts filed by the Claimants and dated 15/9/15, examination of paragraphs 13, 15, 18, and 37 becomes imperative. From these paragraphs of the statement of facts, it is apparent that the cause of action of the Claimant arose on 3/11/10 the day he suffered electric shock leading to the amputation of his both arms. It is also a fact that the Claimant instituted this action on 15/9/15 via a General Form of Complaint and a statement of facts.

The second Defendant in this case has sought to claim the statutory protection against legal action as afforded by Cap. P41, Laws of the Federation of Nigeria, 2004. The question is whether the 2nd Defendant is a public officer to be so protected. The 2nd Defendant placed heavy reliance on Exh. D1. That exhibit is the Certified True Copy of the Amended Memorandum and Articles of Association of the 2nd Defendant. The names and addresses of its subscribers as stated on page 6 of the exhibit are ''Ministry of Finance Incorporated (MOFI) represented by Mohammed Kyari Dikwa'' and ''Bureau of Public Enterprises (BPE) represented by Bolanle Onagoruwa 9Ms)''. Both subscribers were described as Agency of the Federal Government of Nigeria respectively. Thus the Federal Government of Nigeria is the shareholder of or subscriber to the 2nd Defendant. The law is trite that agencies of the Federal governments are protected by the Public Officers Protection Act. The statute has been interpreted to the effect that both natural and artificial persons (juristic personalities, be they human or legal institutions, incorporations/statutory bodies) are qualified to enjoy the protection of the Public Officers Protection Act. See Ibrahim vs JSC Kaduna State (1998)14 NWLR (Pt.584)1 at 38 and Agboroh v. WAEC (2016) LPELR (CA).

It is apparent from the pleadings of the parties that indeed the Claimant was an employee of the Defendants. See in particular Exh. C13 & Exh. C14. Severance benefits of the Claimant were allegedly paid to him by Exh. C15 & Exh. C16. All this was after his service was dispensed with by Exh. C17. It is my finding that the Claimant had a contract of service with the Defendants. It is also my finding that the permanent injury sustained by the Claimant was a product of him discharging the responsibility assigned to him by virtue of that contact of service with the Defendants. I find in addition that the injury would not have been possible but for the fact of the existence of service engagement by the Defendants. Now, is the 2nd Defendant protected by the provisions of the Public Officers Protection Act as contended? It would appear that the appellate Court has seen the hardship inherent in the application of the Public Officers Protection Act. Hence the Supreme Court has held that the Act does not apply to nor provide an umbrella for public institutions from liability for their acts. In a recent case of National Revenue Mobilisation Allocation and Fiscal Commission & 2 Ors. v. Ajibola Johnson & 10ors. (2019)2 NWLR (Pt. 1656) 247 at 270-271, the Court per Ariwoola JSC pointed out emphatically that -

''I have no slightest difficulty in holding that the appellants are not covered by the provisions of the Public Officers Protection Act as to render the respondents' action statute barred. In sum I hold that the learned Justices of the court below are right in holding that the appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the respondents ...''.

This is the most recent decision of the apex Court in this land on the application of Public Officers Protection Act. It is a trite law that where there are conflicting decisions of an appellate Court a trial Court is under a compulsion to follow the most recent in time or the latest of the decisions. See Alao v. Unilorin (2008)1 NWLR (Pt. 1069) 421 at 450. I resolve the first issue in favour of the Claimant and hold on the authority of the above decision that the case of the Claimant is not barred by the Public Officers Protection Act.

The second issue for determination is whether the Claimant is entitled to any or all the reliefs sought. The case of the Claimant as revealed from his evidence in chief is that he had been a contract staff of both the 1st & 2nd Defendants since 7/6/08 and that PHCN has metamorphosed into 2nd Defendant; that his appointment with the Defendants was confirmed by a letter dated 9/6/15; that the Defendants are in charge of electricity supply, power distribution, erection of electricity cables throughout Ogun State as well as proper maintenance, erection, supervision, inspection of cables in order to prevent danger to lives of staff and members of the public; that on 3/11/10 the Claimant in company of other staff of the Defendants were mandated to close up power along Lagos-Abeokuta Expressway under 11KVA feeder; that all necessary approvals and permits were obtained to shut down power before proceeding to the site of work; that an operating rod was used to confirm the outage granted which is procedural before commencement of work on the closure of the power; that while at the site of job description and working on the closure, he had an electric shock; that he was treated at different medical facilities; that the electric shock was caused by the negligence of the Defendants; that the electric shock resulted in the amputation of his both hands and that he could have been an able body but for the negligent act of the Defendants.

My understanding of the case of the Claimant, taking cognisance of the facts, the evidence led and the whole gamut of this case is that it is one founded essentially on negligence of the Defendants. What then is negligence? What does a Claimant need to prove in order to succeed for an award of damages in negligence? In Kabo Air Limited v. Mohammed (2014) LPELR-23614(CA), Abiru JCA took time out to espouse on what is meant by negligence in the following words -

'' ... Now, negligence is the omission to do something, which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. It means lack of proper care and attention; careless behavior or conduct; a state of mind which is opposed to intention and the breach of a duty of care imposed by common law and statute resulting in damage to the complainant. Negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is also any conduct that falls below the legal standard established to protect others against unreasonable risk of harm - Universal Trust Bank of Nigeria Plc v. Ozoemena (2007) 3 NWLR (Pt. 1022) 448, Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 and Diamond Bank Plc v. Partnership Investment Co Ltd (2009) 18 NWLR (Pt. 1172) 67."

Negligence is said to be a fluid principle, which has to be applied to the most diverse conditions and problems of human life. See Ojo v. Ghahoro & ors (2006) LPELR-2383 per Ogbuagu JSC. Negligence is a question of fact not law. Therefore each case must be decided in the light of its own facts and circumstances. The facts of a case bordering on negligence must be proved by the person who asserts same. This is in tandem with the age-long established principle of law that he who asserts must prove the assertion. See Okorie v. Unakalamba (2013) LPELR-22508 (CA).Therefore failure to prove particulars of negligence pleaded is fatal to the plaintiffs case Alhaji Otaru and Sons Ltd vs Idris (1999) 6 NWLR (Pt 606) 330. In a case of this nature, that is a case founded on negligence, in order for a Claimant to succeed, this Claimant must prove the following -(a) that the defendant owed a duty of care to the Claimant; (b) that the duty of care was breached and (c) that the plaintiff suffered damages arising from such breach. See SPDC Nigeria Limited v. Ikontia & Ors. (2010) LPELR-4910 (CA). It is imperative to bear in mind that a mere occurrence of an accident is not a proof of negligence. Negligence is also not proved simply because a party sustains an injury in the course of his employment. Thus, where there is duty of care and that duty is breached without an injury sustained there will be no award of damages. Secondly, where there is no duty of care but a party sustains an injury, no damages will lie for negligence. Thirdly, where there is no duty of care and accident occurs leading to injury the Court will not intervene to award damages. The point has earlier been made that negligence is a question of fact to be proved. The proof required is by cogent, credible and admissible evidence. A party seeking damages in negligence must prove the 3 identified elements of negligence. He must prove the existence of a duty of care. He must prove the breach of that duty of care. He must also prove the damage resulting from the breach of the duty of care owed. The circumstances leading to the accident, the nature and extent of the accident must be pleaded and cogent evidence adduced in support. It is then that the Court will be able to determine whether partially or wholly, either the Claimant or the Defendant, caused the accident. See Abubakar & Anor. v. Joseph (2008) LPELR-48 (SC). I have taken time in setting out the law on negligence so as to prepare ground for the next enquiry which is whether the Claimant in this case has discharged the burden of proof on him to be entitled to a positive disposition by this Court.

Do the Defendants owe the Claimant any duty of care? The fact that the Claimant was an employee of the Defendants was seriously not disputed by either side. For, even though 1st Defendant claimed not to be the employer of the Claimant, yet it was the 2nd Defendant who disengaged his services by Exh. C17. It is also not challenged the fact that the Claimant sustained the injury in this case in the course of the discharge of his duties as an employee of the Defendants. All the accident reports written by the officers of the Defendants attested to the fact that the Claimant sustained this permanent injury in his line of duty. See in particular Exh. C4, Exh. C5, Exh. C6, Exh. C7 & Exh. C8. These unchallenged facts go to establish the simple fact of existence of employer/employee relationship between the parties, at least prior to the occurrence of the accident leading to the institution of this case. The existence of employment relationship, even at Common Law, imposes a duty of care on the employer respecting his employees. The Court of Appeal in Kabo Air Limited v. Mohammed (2014)LPELR-23614(CA) reiterated the position thus -

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

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

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

It suffices from the pleadings of the parties and the unchallenged evidence led to hold that the Defendant as the employer of the Claimant owed the Claimant a duty of care. Has the Claimant proved the second element of negligence which is that the duty of care owed was breached? It is not sufficient that there exists a duty of care owed by the Defendant to the Claimant to be entitled to award of damages. The Claimant is under an obligation to prove that the Defendant breached that duty of care. The mere occurrence of an accident is not enough to make a claim for damages. The accident must be linked to the fault or failings of the Defendant. See Avon Crown Caps & Containers Nig. Limited v. Bamigboye (2005)17 NWLR (Pt. 954) 275. The evidence led by the Claimant is that he in the company of other members of staff of the 2nd Defendant whom the 1st Defendant acquired with all the liabilities was mandated to close up power along Lagos-Abeokuta Expressway under 11KVA feeder. It was his unchallenged evidence that ''all necessary permit and approval were obtained to shut down power before proceeding to the site of work'' and that ''while at the site of job description and working on the closure, he had an electric shock''. The electric shock resulted into eventual amputation of his two arms.

It is the unchallenged evidence of the Claimant under cross examination that he was an experienced staff before the accident occurred; that he was granted permission to shot down the transformer where the accident occurred by the PHCN; that after about 20 minutes of working on the main line, the electric current flow that is electricity current was restored on the transformer and the main line; that staff were always given gadgets to protect themselves while working but that the protective gadgets are only useful provided there is no supply of electricity while working. The Defendants owed a duty of care to the Claimant to ensure among other things that while working on the line with permission of the Defendants that electricity was not restored so as to prevent the occurrence of type of injury that occurred to the Claimant. I find and hold that the Defendants breached that duty of care. The amputation of both arms of the Claimant is the injury and wrong done to the Claimant as a result of the negligence of the Defendants. Considering the gamut of this case and the unfortunate circumstance of the Claimant, I hold that the Claimant is entitled to damages for injury and permanent disability to him as a result of the negligence of the Defendants.

Having resolved that the Claimant proved all the elements constituting negligence, what is left is the determination of how much in monetary terms is awardable to the Claimant.

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

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

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

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

In the instant case, the Claimant lost both arms. Question is for how much can one possibly purchase a human arm in the market? How much, in monetary terms, will be enough to restore the Claimant back to his position before the injury sustained by him? In all, the Claimant prays the Court to award a total of =N=850,000,000.00 as damages/compensation for the loss of his two arms.

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

In Kenneth Ighosewe v. Delta Steel Co. Ltd [2007] LPELR-8577(CA), the appellant had claimed in the High Court inter alia for permanent disfigurement of his finger next to the index finger and the partial disfigurement of the thumb. The Court of Appeal, after holding that “it is equally trite that in assessing what is fair and reasonable to bear in mind previous awards made by the Courts in comparable cases in the same jurisdiction or even in a neighbouring locality where similar social, economic and industrial conditions exist”, reviewed the award of damages by the High Court to a higher figure, applying the principle set down in Ebe v. Nnamani [1997] 7 NWLR (Pt. 513) 419, which had similarly increased an award for personal injury to =N=10 Million. That was in 2007. This is 2019. Needless to point out that the value of Naira has nosedived in the last couple of years. Even in Kenneth Ighosewe v. Delta Steel Co. Ltd, citing Ejisun v. Ajao [1975] 1 NMLR 4 at 7, the Court enjoined that awarded damages for pains and suffering and disfigurement, being a lump sum and a once and for all exercise, must also, in order to be fair and reasonable, take care of future economic loss otherwise known as prospective loss in order to keep up with the times and in particular with the economic strength or decline, as the case may be, of our national currency, the Naira.

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

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

That was the opinion respecting the Nigerian Naira as far back as 1993. No doubt, Niki Tobi JSC of blessed memory would marvel in his grave at the value of our national currency in 2019..

Earlier on in the Judgment delivered on 10/5/18, this in Mr. Frank Nnnamdi v. Leoplast Industry Limited Suit No: NICN/LA/43/2016 I had awarded the sum of =N=10,000,000.00 as compensation for the injury and permanent disability of the Claimant caused by poor factory safety environment and procedures for the industrial accident leading to the amputation of the Claimant's entire five fingers of his right hand. This is the case of a Claimant who joined the services of the Defendants as an able body young man. He had all parts of his body complete and functional. Hence he was able to make positive contribution to the development of the Defendants. Indeed Exh. C17 said concerning the Claimant thus -

''The company acknowledges your contribution towards the growth of the power industry and wishes you the best in your future endeavours''.

Unfortunately at the time of his disengagement in 2013, Claimant had lost both arms while in active service of the Defendants. I watched the Claimant while testifying in chief. He has no hands and no arms. He joined the services of the Defendants as a complete human being but got disengaged as an incomplete being. For all intents and practical purposes, the Claimant will forever be dependent on somebody virtually 24 hours a day and seven days a week. He needs a person to bath, feed, dress him. He needs an assistance to use the toilet. He needs an assistance to even scratch his body in event of an insect bite. Should he find himself in a place of public disturbance or riot, the Claimant is right on his own and all alone to fend for his dear life The appearance of the Claimant at trial was one of a sorry state. One cannot but think aloud as to much could be awarded in damages to be able to put the Claimant back in his position before the accident leading to the amputation of his both arms. The Claimant had sought award of a total sum of Eight Hundred and Fifty Million Naira as damages for the loss of his two arms. I have considered all the circumstances of this case including and by no means of least importance the current value of the Nigerian Naira and the near total helplessness situation of the Claimant. Unfortunately, there is no similar case as this in which a Court has awarded damages in favor of a Claimant who lost both arms. For all the reasons as contained in this Judgment, I find merit in the case of the Claimant. I award to him damages in the sum of One Hundred and Fifty Million Naira (=N=150, 000, 000.00) only against both Defendants.

The 2nd Defendant filed a counter claim along with its statement of defence on 24/2/17 and counterclaimed as follows -

2. =N=5,000,000 (Five Million Naira only) being special damages for professional fees paid for legal services by the 2nd Defendant.

I have carefully examined these counter claims. I read and understood all the argument proffered in support of same. Having found for the Claimant in this case, I find no merit in the counter claims sought. I have no hesitation in dismissing same and I so do.

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

1. Claimant is awarded the sum of One Hundred and Fifty Million Naira only against the Defendants as damages for the permanent injury he suffered as a result of the negligence of the Defendants.

2. This Judgment sum shall be paid with interest at the rate of 10% per annum from today until final liquidation of the entire Judgment sum.

3, The counter claims of the 2nd Defendant fail in their entirety.

4. The Defendants shall pay the cost of this proceedings assessed at =N=200,000.00 only.

5. All the terms of this Judgment shall be complied with within 30 days from today.

Judgment is entered accordingly.

____________________

Hon. Justice J. D. Peters

Presiding Judge