IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- JUDGE

 

DATE: 18TH OCTOBER, 2021

 

 SUIT NO: NICN/PHC/13/2019

 

BETWEEN:

 

MR. MCDONALD EGEJURU         -----------------                   CLAIMANT

 

AND

 

NIGER CONSTRUCTION LIMITED         ----------------        DEFENDANT

             

JUDGMENT

 

1.1.         The claimant commenced this suit by way of Complaint and Statement of Facts filed on the 21st of January, 2019, and claims against the Defendant as follows:

 

a.     A declaration that the defendant was negligent in not providing a safe mode and environment for the Claimant to execute his official duties as its employee.

 

b.      N4,653,300.00 Special damages.

Particulars of Special Damages

 

i.                    The sum of N490,300.00 being medical bills already incurred by the Claimant.

ii.                 The sum of N4, 163,000.00 being the estimated cost of future treatments.

 

c.      The sum of N100,000,000.00 general damages for excruciating pains, trauma and permanent partial incapacity.

 

d.     10% interest on the judgment sum from the date of judgment till satisfaction thereof.

 

1.2.         The Defendant’s Memorandum of Appearance and Statement of Defence together with other accompanying processes were filed on the 6th of March, 2019, while the Claimant filed a Reply to the Statement of Defence together with Further Witness Statement on Oath, List of Additional Documents and frontloaded documents on the 23rd of January, 2020. With the leave of court the Defendant filed an Amended Statement of Defence on the 5th of March, 2020.

 

1.3.         Trial in this suit commenced on 26th of February, 2020, when the Claimant opened his case by testifying as CW. He identified and adopted his deposition that was filed on the 21st of January, 2019, and the further deposition that was filed on the 23rd of January, 2020. The following documents were then tendered through CW and admitted by the court:

 

1.     Defendant’s letter to the Manager, First Inland Bank Plc, 133 Olu Obasanjo Road Port Harcourt dated 13th September, 2012--- exhibit CW1.

2.     Defendant’s letter to the Manager, First Inland Bank Plc, 133 Olu Obasanjo Road Port Harcourt dated 9th March, 2012--- exhibit CW2.

3.     Defendant’s letter to the Manager, Union Bank Plc, Trans Amadi Industrial Layout Port Harcourt dated 2nd July, 2014--- exhibit CW3.

4.     Letter of termination of appointment dated 28th May, 2015-- exhibit CW4.

5.     Medical Report of Everlon Hospital dated 3rd August, 2015--exhibit CW5.

6.     Life Care Centre Ltd medical bill dated 30th April, 2015 – exhibit CW6.

7.     NEC Pharmacy cash receipt dated 15th of May, 2015 ----- exhibit CW7.

8.     Copy of e-mail dated 7th July, 2018 ----- exhibit CW8.

9.     Police Investigation Report ----- exhibit CW9.

10.           Bundle of copies of photographs ------- exhibit CW10.

11.           Gloryland Medical Centre Referral Form dated 22nd November, 2014 – exhibit CW11.

12.           Life Care Centre Ltd Referral Letter dated 9th December, 2014 ---- exhibit CW12.

13.           PMC Diagnostic Centre Imaging/Ultrasound Report --- exhibit CW13.

14.            Defendant’s letter to the COP Bayelsa State Police Command dated 6th of March, 2015 ------- exhibit CW14.

15.            Life Care Centre Ltd. Hospital Bill dated 6th December, 2014 – exhibit CW15.

16.            Rivers State Hospitals Management Board, Braithwaite Memorial Specialist Hospital Radiological Report Sheet dated 9th August, 2016 --- exhibit CW16.

17.            Defendant’s expatriate quota returns for the month of July, 2014 dated 1st July, 2014 ------- exhibit CW17.

 

1.4.         The witness (CW) was cross-examined by the Defendant’s counsel and re-examined before being discharged. The Claimant then closed his case on the 27th of February, 2020.

 

1.5.         The Defendant opened its defence on the 3rd of February, 2021 by calling its sole witness Ejaita Yekovie (the former Personnel Manager now the Plant Performance Analyst in the Defendant) who testified as DW. The witness identified and adopted his deposition that was made on the 5th of March, 2020 before tendering the following documents which were admitted by the court:

 

1.     Defendant’s Expense Sheet in the sum of N15,000.00 ---- exhibit DW1A.

2.     Defendant’s Expense Sheet in the sum of N84,000.00 ---- exhibit DW1B.

3.     Life Care Centre Ltd bill dated 6th December, 2014 --- exhibit DW1C.

4.     Life Care Centre Ltd Supplementary bill dated 16th December, 2014 --- exhibit DW1D.

5.     IBN Insurance Brokers of Nigeria Ltd letter dated 12th February, 2018 --- exhibit DW1E.

1.6.         The witness was cross-examined by the counsel to the Claimant and discharged without any re-examination. The Defendant closed its case on the 18th of March, 2021.

 

1.7.         With the close of evidence, parties were directed to file their final written addresses beginning with the Defendant. While the Defendant’s Final Written Address was filed on the 17th of June, 2021, that of the Claimant was filed on the 9th of July, 2021. These processes were adopted by counsel on the 29th day of July, 2021, with I. G. Nwosu appearing with O. J. Petito and F. C. Ayize holding the brief of Emmanuel Asido for the Claimant, while J. K. David appeared for the Defendant.

 

THE CASE OF THE CLAIMANT:

 

2.1.         The Claimant as the Defendant’s Accountant was detailed to Mbiama in Rivers State and Otuasege in Bayelsa State with money amounting to over N5,000,000.00 meant for the payment of salaries and payments for the expatriates and workers at the Defendant’s two work sites. While the Claimant was paying the workers at the Otuasege site on the 18th of November, 2014, armed robbers invaded the premises, killed the police escort on ground and took away his rifle, shot the Claimant at his left lung field and took away the money.

 

2.2.         According to the Claimant, he was rushed to Gloryland Medical Centre Yenagoa, Bayelsa State where he was first treated before being transferred to Life Care Centre Ltd Port Harcourt for further treatment and management. That till date he still has metallic pellets over his chest wall, lung field and left cardiac border resulting in life threatening situations, excruciating pains, possible respiratory failure and total lung collapse which has rendered him permanently partially incapacitated.

 

2.3.         The Claimant further averred that, while he was still battling with his life the Defendant terminated his employment and abandoned him without further treatment, and left medical bills for him to settle even when no terminal benefits have been paid to him by the Defendant. That in search of better treatment he approached Dakshin Medical Tourism in India which has put the cost of further treatment at USD 11,500.

 

2.4.         That since the Defendant was aware of the volatility of the area like Mbiama and Bayelsa State, the Defendant should not have provided only one police escort to him because as the Defendant’s Accountant the Defendant owed him a duty to provide safe mode of discharging his responsibilities, and the Defendant breached the duty which made him to suffer damage to his life and career. He therefore pleads the particulars of negligence to include:

 

a.      The Defendant knew that it is unsafe to carry about huge cash volume without adequate armed police presence.

b.     The Defendant ought to have made arrangement for the site workers to provide their account numbers to the site manager wherein their salaries would be paid into or in the alternative contract a bank to pay the said workers cash upon due identification.

c.      The Defendant in a bid to cut cost, made the Claimant to move from Port Harcourt to Mbiama and Otuasege work sites with such huge amount of money in raw cash in a volatile area like Bayelsa State with only one Police escort, and payments to be made in an open unsecured place.

d.     The Defendant failed to provide armed Police security (aside the sole Police escort) to secure the Defendant’s work site on the day of the payment or incident and this they did without Claimant’s knowledge.

DEFENDANT’S CASE:

 

3.1.         The Defendant avers that the Claimant as the Accountant was expected to pay the salaries and allowances of the Defendant’s personnel in a reasonable manner as he deems fit. That as part of its safety policy the defendant had police personnel attached to it at great cost to the Defendant, and the Claimant had access to the poll of five (5) armed security personnel and he always on his own volition asked them to follow him in the course of his duties whenever he deems it necessary. That the Claimant had moved cash to the site outside the Defendant’s premises at so many times before the incident of 18th November, 2014, and at these times he solely made the arrangement for the cash movement without any interference from the Defendant.

 

3.2.         That as a responsible company it took all responsible precaution to ensure safety of its employees by providing armed security whenever any employee deems it necessary to use them because the insurance policy requires the defendant to use armed personnel when moving money to its site. That the Claimant on his own asked one police escort to accompany him despite the presence of numerous armed police personnel in the Defendant’s premises on the day of the robbery when the Claimant went to pay the defendant’s community workers who are casual workers and local suppliers of construction materials who had no bank accounts. That the Claimant collected money beyond the salaries of the community workers without authorization, and that immediately after the robbery incident, the Claimant was rushed to Gloryland Medical Centre Yenagoa by the defendant where he was admitted, treated and discharged when the hospital certified him okay. That the claimant who is medically fit was requested severally to send any other medical bill outstanding to enable the defendant’s insurance settle same but the Claimant has refused to send any bill.

 

3.3.         The defendant further avers that, the appointments of all its staff in Port Harcourt including the Claimant were terminated in 2015 due to lull in its activities in the area which impacted negatively on its finances.

 

 

3.4.         That the Claimant’s health after the robbery incident has since been restored, and he is in good health and was not abandoned by the defendant who ensured that he received the best medical services available at the defendant’s expense.

 

DEFENDANT’S SUBMISSIONS.

 

4.1.         The learned counsel to the  Defendant identified the following three (3) issues for  determination in this suit, to wit:

 

a.     Whether or not the Claimant has proved that the Defendant was negligent in the incident of 18th November, 2018 which is the cause of action in this suit.

 

b.     Whether or not the Claimant has proved his claim for special damages against the Defendant.

 

c.      Whether or not the Claimant has proved his case to be entitled to the reliefs sought in this case.

 

4.2.         With respect to issue one, learned counsel referred the court to the provisions of section 133(1) of the Evidence Act, 2011 (as amended), and argued that in civil cases the burden of proof rests upon the party who substantially asserts the affirmative, and that the burden of proof lies on the person who will fail assuming no evidence had been adduced on either side. That the onus of proving an allegation is on the Plaintiff, and such onus does not shift until he has proved his claim on the preponderance of evidence and balance of probability. A party must prove his case on credible evidence and not to rely on the weakness of its opposite party in order to succeed. See Diamond Bank Ltd. V. Mocok Onu Nig. Ltd. (2019) All FWLR (Pt. 1001) 718 and Julius Berger (Nig.) Plc. V. Ogunde (2013) All FWLR (Pt. 676) 497 CA.

 

4.3.         That since negligence denotes the failure by a party to exercise the standard of care that a reasonable prudent person would have exercised in a similar situation, for an action in negligence to be sustained a party asserting such must establish that the party against which the allegation is made owed the other party a duty of care, and there must be connection between the carelessness and the damages or loss suffered. See M. O. Kanu Sons & Co. Ltd. V. F. B. N. Plc. (2006) All FWLR (Pt. 327) 462 S. C.

 

4.4.         That from the pleadings and evidence of the Claimant, there is nowhere the Claimant avers that there had always been armed security men at the defendant’s site, and the number of security men he had been going with to the site to make payment prior to the time the armed robbery incident occurred. Learned counsel referred to the answers elicited from the Claimant during his cross-examination where he stated that from 2013 when he started making payments at sites for more than or up to five times a month he had been carrying cash to sites with one mopol attached to him from Port-Harcourt to Mbiama and to Otuasege in Bayelsa State without any issue of robbery or attack , as well as exhibit CW9 (Police Investigation Report) and submitted that, exhibit CW9 did not say the site was volatile area prior to the incident, or that there had always been security men on ground at the site prior to the incident, or that it was the failure of the Defendant to provide security at the site that led to the armed robbery and the Claimant being shot in the process.

 

4.5.         That negligence constitutes of 3 essential elements, namely:

            (a)      The duty of care owed the Claimant by the Defendant;

            (b)      The breach of that duty of care by the Defendant; and

            (c)       The resultant damages.

            The Claimant in an action for negligence must show that he had suffered damage as a consequence of the Defendant’s breach of the duty of care owed to the Claimant. See Azike V. Nigerian Bottling Company Plc. (2019) All FWLR (Pt.989) 1223 and Ighreriniovo V. S. C. C. Nigerian Limited (2013) All FWLR (Pt. 700) 1240.

4.6.         The learned counsel to the Defendant further referred the court to DW’s answer during cross-examination and argued that no evidence was proffered by the Claimant that there have been armed policemen at the site but the Defendant failed to provide them on that day. That the Defendant cannot be said to have breached any duty to provide security to the Claimant in the course of the claimant performing his official assignment having given him the usual one police escort. That in the circumstance of this suit where the Claimant pleads and relies on negligence by conduct or action of the Defendant, the Claimant must prove by evidence the conduct or action and the circumstance of its occurrence, which gave rise to the breach of the duty of care owed the Claimant. It is only after this, that the burden shifts to the Defendant to adduce evidence to challenge negligence on his part. That there are no facts pleaded by the Claimant to support his claim of negligence against the Defendant.

 

4.7.         That there is no credible evidence to prove that the act or omission of the Defendant was the cause of the damages allegedly suffered by the Claimant. The Claimant must lead credible evidence to prove that the purported negligence of the Defendant relates to and is the cause of the damages allegedly suffered by him. See MTN Nig. Communications Ltd. V. Mundra Ventures Nig. Ltd. (2016) LPELR – 40343 (CA).

 

4.8.         The court was urged to resolve issue one against the Claimant and in favour of the Defendant by holding that from the evidence available before the court and Exhibit CW9, the Claimant failed to prove that the Defendant was negligent.

 

4.9.         With respect to issue two, the learned counsel to the Defendant referred the court to exhibits DW1A, DW1B, DW1C, DW1D, CW5, CW6 and CW7 as well as the answers elicited from the Claimant during cross-examination, and argued that the Claimant did not lead evidence to show that he paid for any of the bills yet he is claiming for special damages. That special damages have to be strictly proved by credible and satisfactory evidence before they could be awarded, except, they were expressly admitted. That while the Claimant is claiming the sum of N490,000.00 being medical bill incurred without more, he failed to plead and lead evidence on how he arrived at that sum, and also did not tender any receipt of payment thereby leaving the court to speculate. That a court of law cannot speculate or conjecture. See Nigerian Bottling Co. V. Taiwo (2018) All FWLR (Pt. 940) 25, Mobil Oil Nigeria Plc V. Bardedos Cars Ltd. (2019) All FWLR (Pt. 988) 947, Olufeagba V. Prof. Abdurra-heem (2009) 12 S.C. (Pt. 11) 1, S. G. Ltd. V. N. C. (Nig.) Ltd. (2016) All FWLR (Pt. 846) 241 at 294 Paras. B – E.

 

4.10.    It was further submitted that, since exhibit CW6 was addressed to the Defendant while the Claimant was still in the employment of the Defendant, and the Claimant did not give any evidence that the Defendant did not pay the bill, the document speaks for itself and no oral evidence can be used to vary it. See Osita I. V. Nanka Micro Finance Bank Ltd. (2018) All FWLR (Pt. 946) 1078. That since exhibit CW4 (Letter of termination of the Claimant’s employment) is dated 28/5/2015 while exhibits CW6 and CW7 are dated 30/4/2015 and 15/5/2015 respectively, it means that the Defendant was responsible for those bills and one of the receipts in exhibit CW7 specifically bears the name of the Defendant while exhibit CW6 was specifically addressed to the Defendant. That a witness who tenders a document and proceeds to give evidence on oath contradicting his document does not deserve to be regarded as a truthful witness. See Ezemba V. S. O. Ibeneme (2010) 10 NWLR (Pt. 674) 61 at 74.

 

4.11.    It was further argued that, exhibit CW5 is a worthless document and at best made or procured for the purpose of this case because there is no evidence proffered by the Claimant that he was referred to any hospital from Life Care Hospital. That it is in evidence that the Claimant was first taken to Glory Land Medical Centre in Bayelsa State and after treatment he was referred to Life Care Centre Ltd. as can be seen in exhibit CW11 where he was treated for 17 days before being discharged and managed as an out-patient for 3 months as stated in paragraph 9 of the Claimant’s Further Witness Statement on Oath and exhibit CW15. The court was urged to disregard exhibit CW5 and not to attach any probative value to it.

 

4.12.    With respect to exhibit CW8 it was argued that it is a computer generated document and no foundation whatsoever was laid by the Claimant for its admissibility. That a party who seeks to tender in evidence computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under section 84(2) of the Evidence Act, 2011. That exhibit CW8 is a worthless document and same should be expunged for non-compliance with the provision of Section 84(2) of the Evidence Act, 2011. See Kubor V. Dickson (2014) 4 NWLR (Pt. 1345) 534.

 

4.13.    With respect to exhibit CW16, it was contended that it did not indicate the person that signed it among the doctors whose names appeared thereon, and no evidence from the Claimant as to the identity of the doctor among the three that issued or signed the document, and no stamp of the hospital is affixed so as to authenticate the document. The court was also urged to discard Exhibit CW16 same having been procured for the purpose of this case. That the Claimant has failed to prove that he is entitled to the claim of special damages.  

 

4.14.    It was further posited that, the claim for future treatment in India is vague and uncertain because there is no evidence on how the claimant was referred to the hospital in India. That the email relied upon by the Claimant was dumped by him as the tendering of same did not comply with the Evidence Act. Learned counsel referred the court to the case of Alhaji Bani Gaa Budo Nuhu V. Alhaji Ishola Are Ogele (2003) LPELR – 2077 (SC) on the meaning of the word “vague.”  See also the case of University of Jos V. Dr. M. C. Ikegwuoha (2013) LPELR – 20233 (SC).

 

4.15.    On issue three (3) it was submitted that while the Claimant’s case is based on negligence, there is however evidence before the court that the Defendant provided the Claimant the armed policeman that always accompanied the Claimant to the sites to make payment and on the day of the incident the Claimant also went to the site with an armed policeman. That it is not in evidence that Mbiama and Otuasege work sites are volatile areas, and the Claimant admitted under cross examination that from 2013 he has been carrying cash to the sites with one mobile policeman attached to him without any robbery or attack. That he who alleges has the burden of proving the allegations, and the Claimant failed to prove negligence in this suit. See Hilary Farms Ltd. V. M/V “Mahtra (2007) All FWLR (Pt. 390) 1417 S. C. and section 135 of the Evidence Act, 2011.

 

4.16.    That for a party to be awarded any relief by a court of law, that party must not only plead with particularity but also prove by credible and convincing evidence that he is indeed entitled to the reliefs he seeks. That from the evidence adduced in this case, it is glaring that the Defendant is not negligent in any manner whatsoever as there is no evidence of such from the Claimant, and the court is bound to consider evidence placed before it and not act based on speculation. See University of Jos V. Ikegwuoha (2013) All FWLR (Pt. 707) 614 at 655 Para. C., Obidigwe V. K. C. C. Ltd. (2006) All FWLR (Pt. 815) 261 and Organ V. N. L. N. G. Ltd. (2014) All FWLR (Pt. 723) 1836 S. C.

 

4.17.    That where a claim or relief is found to be lacking in merit, the consequential order that follows is that of dismissal of the claim. See Mil. Gov. Ondo State V. Kolawole (2008) All FWLR (Pt. 446) 1805 S. C. at 1817 paras. E – F and Warifama V. Egbo (2019) All FWLR (Pt. 1017) 658.

 

4.18.    That the Claimant’s case is lacking in merit and should be dismissed in its entirety with punitive cost against the Claimant.

 

CLAIMANT’S SUBMISSIONS

 

5.1.         The learned Claimant’s counsel submitted this lone for the court’s determination, to wit: Whether on the balance of probabilities and preponderance of evidence before the court, the Claimant has proved his case to be entitled to the reliefs sought?

 

5.2.         It was submitted on the single issue that it was due to the negligence of the Defendant that the incident of 18th November, 2014 which put the Claimant in his present state of pains occurred. That there was a duty owed the Claimant by the Defendant which was breached resulting to the injury suffered by the Claimant. See M.O. Kanu, Sons and Company Limited V. First Bank of Nigeria Plc. (2001) LPELR – 7021 (CA) where ‘negligence’ was defined, “as the omission to do something which a reasonable man, guided by those ordinarily considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do. It is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm; it is a departure from the conduct expectable of a reasonably prudent person under like circumstances.”

 

5.3.         That the Defendant who employed the Claimant as an Accountant and assigned him with a perilous task of movement of high volume of cash owed the Claimant a duty to provide safe mode/atmosphere/facilities for the discharge of that duty, and the provision of a single Police Officer as escort for the movement of cash to work sites while the rest of the Police Security Personnel attached to the Defendant were detailed to be safeguarding Defendant’s expatriate staff in the comfort of their offices was indeed preposterous and below the standard expected of a reasonable and prudent man in that circumstance. That the Defendant therefore breached that duty which is owed the Claimant leading to his deteriorating health conditions as evidenced in exhibits CW10, CW11, CW12, CW13 and CW16.

 

5.4.         It was further submitted that the reasonable standard of care expected of reasonable and prudent person in a similar circumstance would have been to provide more security details at the sites especially on the days payments are to be made or rather pay the workers through their bank accounts. See Ngilari V. Mothercat Limited (1999) LPELR – 1988 (SC), where the Supreme Court per, Onu J.S.C. at page 35, paras B – D held that, “It is well established that for a claim in negligence to succeed, plaintiff must prove that Defendant owes him a duty of care, and was in breach of that duty – see OYIDIOBU V. OKECHUKWU (1972) 5 S.C 191. Accordingly Plaintiff must prove that the accident was as a result of the negligence of the Defendant.”

 

5.5.         That in the instant case, the Claimant testified that if the Defendant had exercised reasonable care by providing security on the site, the armed robbery would not have been possible, and the gunshot injuries which he sustained, the present excruciating pains which he is suffering due to the presence of pellets in his lungs were direct consequences of the Defendant’s breach. The court was urged to hold that the Claimant has proved the case of negligence against the Defendant and therefore entitled to the reliefs sought.

 

5.6.         With respect to the quantum of damages to be awarded, learned counsel referred to the case of M. N. L. V. Nwachukwu (2004) LPELR – 1526 (SC) where the Apex Court, per Musdapher J.S.C at pages 23 – 24, para F – A held thus, “A claim for damages in personal injury cases is a claim for compensation for loss of capacity for future earnings or for a diminished enjoyment of life as a result of the injury suffered and for pain and suffering” See also the case of C & C Construction & Anor. V. Okhai (2003) LPELR – 821 (SC) where Edozie J.S.C stated at pages 32 – 33, paras. E – A thus, “In discussing the principles that guide the Court in the assessment of damages in personal injury cases, this Court in the case of Samson Ediagbonya V. Dumez (1986) 3 NWLR (PT. 31) 753 at pp. 761 – 762; (1986) 6 SC 145 at pp. 164 – 176, per Karibi – Whyte, J.S.C. commented thus: It seems to have been established by Judicial Authority that in personal injury cases, two main factors have to be taken into consideration in assessing damages in cases of liability. These are (a) The financial loss resulting from the injury (b) the personal injury involving not only pain and suffering, but also the loss of pleasure of life. See Salihu V. Tin Association Minerals Limited (1958) NRNLR 99; Shaibu V. Maiduguri (1967) NNLR 56; Mauche V. Durie & Anor (1970) NNLR 62.”

 

5.7.         That in the instant case, apart from the loss of earnings due to the termination of the Claimant’s job by the Defendant while the Claimant was still battling with his life in the hospital, the Claimant with the presence of pellets inside his body as shown in exhibit CW13, the Claimant can no longer live a normal life given the heat and pains he is made to live with. That the claim for special damages was sufficiently particularized and that the Medical Bills in exhibits CW6 and CW7 were addressed to the Defendant but were never paid by the Defendant.

 

5.8.         The court was urged to grant the reliefs sought by the Claimant, and award adequate damages to the Claimant as per his claims, to cushion the pains and loss of pleasure of life.

 

COURT’S DECISION:

 

6.1.         Having carefully considered the pleadings, testimonies, exhibits and arguments/submissions of both learned counsel to the parties, I am of the view that since the Defendant’s issues 2 and 3 are similar to the Claimant’s lone issue, I shall adopt the lone issue formulated by the Claimant in the determination of this suit, to wit, Whether on the balance of probabilities and preponderance of evidence before the court, the Claimant has proved his case to be entitled to the reliefs sought?

6.2.         In order to prove his claims before the court the Claimant adopted his depositions that were made on the 21st of January, 2019 and 23rd January, 2020 which are not different from the averments in the Statement of Facts and the Reply to the Statement of Defence. During his cross-examination the Claimant answered that, he was not the maker of exhibits CW1, CW2 and C3, and the exhibits were not written to him. That exhibit CW5 was collected by him after he made the payment and that the original of exhibit CW6 was collected by Mr. Hanah Georges of the Defendant who informed him that he would be paid once the Insurance Company pays the defendant but he has not heard from the defendant. That he collected the original of exhibit CW5 because by then he had been disengaged by the defendant who instructed the security personnel at Trans Amadi Office not to allow him into the office. That exhibits CW14 and CW15 were not addressed to him and were delivered at the defendant’s office when he was still in the services of the Defendant. That exhibit CW16 was given to him and he is not the maker of exhibit CW17. The Claimant further answered that he worked as the Defendant’s Accountant from 1994 to 28th May, 2015, and that it was from 2013 that he started going to sites for cash payments after withdrawing the money from the banks. That the amount to be taken to sites for payment is normally discussed between himself and the manager in Port Harcourt Engr. Morris. That even though there was no agreement on provision of security, anytime they were to move cash the Manager would call the Mobile Police (MOPOL) to go with him to the sites at Mbiama in Rivers State and Otuesege in Bayelsa State and he never had any robbery incident prior to the one on 18th November, 2014. The witness affirmed that from the period the incident happened to when he was discharged from the hospital all the bills were paid by the Defendant. He however refuted the contention that he was discharged because the hospital gave a medical report, but that it was the management that told the hospital to discharge him on 16th of December, 2014 and place him on further treatment as out-patient for 90 days as can be seen in exhibit CW15. He further stated that even though when his appointment was terminated he was asked to contact the Account Department for his entitlement, he was unable to do so because of the pellets in his body. That on that date of the incident the police team leader Shekarau was the only policeman available to go with him to the sites because he had detailed the other four policemen to accompany the expatriates to sites. That on the fateful day he was paying the community workers who were not permanent staff of the Defendant. He refuted the insinuation that he was the number two ranking officer in Port Harcourt Office after the Manager because after the Manager there were expatriates, but that among the Nigerian workers he was the highest ranking officer. When asked whether he had any referral with respect to exhibit CW8, the Claimant answered that he was directed to look outside for the extraction of the pellets. That while the workers were working on the site on the fateful day, the site has not been 100% peaceful, and that there has always been the presence of security personnel at the site because of the expatriates that work there.

 

6.3.         The Defendant’s sole witness Ejaita Yekovie’s evidence in chief vide his deposition on oath filed on the 6th of March, 2020 is virtually a reproduction of the averments in the Amended Statement of Defence. During the cross-examination of the DW he answered that, he is the former Personnel Manager of the Defendant, and that from exhibits CW1 and CW2 Mr. C. Nassif and one G. Ghorayeb who are expatriates were the defendant’s Finance Managers as at September, 2012 and 9th March 2012 respectively. That the armed policemen in the defendant are to protect both the expatriates and other management workers of the defendant. That in seeking employment the Claimant did not provide the defendant with qualification in security but qualification in accountancy. That even though the Claimant is not a member of the defendant’s Board of Directors and was never a Manager, he is however in the Management cadre, and the Finance Manager was the claimant’s boss in the Finance Department. The witness identified exhibit CW4 as the claimant’s letter of termination. He further confirmed that on the day the incident happened the defendant did not have any armed policemen at the site in Bayelsa apart from the one that went with the Claimant because there have never been armed policemen on the site. That the claimant usually takes any available vehicle in the yard for the purpose of going to the site to make payments, and the driver of the vehicle is the defendant’s staff, and also the slain policeman was paid allowances by the defendant. That even though they had policemen deployed at their facilities all over Nigeria at the material time, he cannot recall the number, and cannot also recall the exact number of expatriates in the defendant’s employment at the material time. That on the fateful day the Claimant carried amount of money in excess of what was required to pay casual workers but he had no proof to substantiate that. That the defendant’s management also applies its ideas on the policies handed down by the Board of Directors, but such decisions are subject to that of the Board of Directors who meets once in a year where approvals are given on issues discussed at the Board Meeting. The witness refuted the question that the defendant is a rudderless company, but that the defendant is rather a law abiding company.

 

6.4.         It is trite law that an employer owes his workman/employee duty of care to take reasonable care to provide not just safe equipment but also a safe system of work, and where it is proved that the employer was negligent in its duty of care to the employee thereby resulting in injury to the employee, the employer will be held liable in damages. See Kabo Air Limited V. Ismail Mohammed (2015) 6 ACELR 71 at 95 where the Court of Appeal held as follows regarding negligence or duty of care in employment cases: “It is also settled that the liability of an employer under the duty of care rests upon the law of tort rather than on the law of contract and this is because under the general law of tort, a duty of care is said to arise when two persons are so closely and directly related that the activities of one of them may involve an appreciable risk of injury to the other- Donoghue v. Stevenson (1932) AC 562. Such a close and direct relationship exists between an employer and his employee and thus, under the ordinary principles of tort, the employer owes a duty of care and he is liable for negligence – Baker v. James (1921) 2 KB 674, Mackinnon V. Iberia Shipping Ltd (1954) 2 Lloyds Rep 372 and Davie v. New Merton Board Mills Ltd supra. An employee is, however, at liberty to sue under contract if there are special advantages – Matthews v. Kuwait Bechtel Corporation (1959) 2 All ER 345.”

 

6.5.         The onus of proof in an action for negligence just as the instant one therefore rests on the Claimant to establish that it was the negligent act or omission of the Defendant that caused the injury to him. This will no doubt involve proving that the Defendant owes the Claimant some duty of care, failure on the part of the Defendant to observe the standard of care prescribed by the law, and the damage or injury sustained by the Claimant which must be as a result of the breach of duty of care. See R. O. Iyere V. Bendel Feed and Flour Mill Ltd (2008) 7-12 SC 151, and Mr. Benjamin Enyioko V. Leventis Motors (Unreported) Suit No. NICN/OW/49/2014 decision of Hon. Justice O. Y. Anuwe delivered on 3rd December, 2018.

 

6.6.         I have reviewed the evidence on record and it is obvious as admitted by the parties that there was armed robbery attack at the defendant’s Otuasege site on the 18th of November, 2014, when the Claimant accompanied by one police officer (Inspector Shekarau Obadiah) was paying the defendant’s community workers and local contractors at the site. In the course of the attack the said Inspector Shekarau Obadiah was unfortunately killed and his rifle taken away. The Claimant was shot on his left arm and the money amounting to the sum of N5, 500,000,00 (Five Million, Five Hundred Thousand Naira) was carted away by the armed robbers. This is evident in the Police Investigation Report (exhibit CW9).

 

6.7.         From the reliefs in this suit, the case of the Claimant is more of claim in special damages for the refund of the medical bills he incurred as a result of the defendant’s failure to settle the bills. Both parties are in agreement that after the robbery incident the Claimant was taken to Gloryland Medical Centre Yenagoa, Bayelsa State where he was treated and further referred to Life Care Centre Ltd. Port Harcourt. To the defendant the claimant was admitted at Life Care Centre Port Harcourt, discharged and attended to as out-patient, and there was no further referral to any other hospital because he was found to have recovered from the injuries he sustained. The claimant is however contending that Life Care Centre Ltd further referred him to Everlon Hospital for physiotherapy and that till date he still has pellets lodged in his body which is endangering his life. I have seen that exhibit CW11 is the Referral Form of Gloryland Medical Centre Yenagoa sequel to which the Claimant was further treated at Life Care Centre Ltd Port Harcourt vide exhibit CW12. From exhibit CW16 (and the attachment thereto) the Claimant was referred to and treated at the Braithwaite Memorial Specialist Hospital Port Harcourt, exhibit CW5 indicates clearly that Life Care Hospital referred the Claimant to Everlon Hospital for physiotherapy, while exhibit CW10 are copies of photographs showing the claimant receiving treatment for the injuries he sustained. What is manifest from all these exhibits is that contrary to the contention of the defendant that the claimant was treated, discharged and certified okay by Life Care Centre Ltd, the claimant was further referred to other health institutions for further medical care. It is therefore obvious that these medical bills were not paid by the defendant particularly that six months after the armed robbery incident the claimant’s appointment was terminated vide exhibit CW4. The incident occurred on the 18th of November, 2014 while the claimant’s appointment was terminated on the 28th of May, 2015.

 

6.8.         The claims of the Claimant are in the nature of special damages. The law is that in claims for special damages the Claimant must specifically plead not only the damages with the particulars but must also prove same strictly with verifiable evidence. In other words, the claimant must not only plead and give the required particulars of the special damages sought, but he must also adduce credible evidence to support the claims in order to satisfy the court on how he arrived at the sum claimed as special damages. See Ndukwe Okafor & Ors. V. Agwu Obiwo & Anor (1978) LPELR-2413(SC), Mantec Water Treatment Nig. Ltd. V. Petroleum (Special) Trust Fund (2007) LPELR-9030(CA) and sections 131, 132, 133 and 134 of the Evidence Act.

 

6.9.         Having evaluated the evidence in this suit, I am convinced that the Claimant has proved his claims for special damages. These claims were specifically pleaded and particularized at paragraphs 8, 9, 10 and 11 of the Statement of Facts and proved vide paragraphs 8, 9, 10, 11 and 12 of his deposition filed on the 21st of January, 2019 and exhibits CW5, CW6, CW7 (which are receipts of NEC Pharmacy and Em-Ken Patent Medical Store evidencing payments for medication) and exhibit CW8. The defendants tendered exhibits DW1A, DW1B, DW1C and DW1D ostensibly as evidence that the medical bills were settled by the defendant. What is however glaring is that these exhibits only relate to the treatments the claimant received at Gloryland Hospital and Life Care Centre Ltd all in 2014. There is no indication that the defendant paid for the other treatments the claimant received after December, 2014.

 

6.10.    The learned counsel to the Defendant urged the court to expunge exhibit CW8 from the record on the ground that being a computer generated document no foundation was laid for its admissibility, and the Claimant failed to comply with the requirements of section 84(2) of the Evidence Act. My simple response is that the law as it stands with respect to the admissibility of computer generated documents is that such evidence of the functionality of the computer used to generate the evidence can be given in two ways: either by calling oral evidence under section 84(2) or by tendering a written certificate under section 84(4) of the Evidence Act. Either of both modes of proof is therefore sufficient to satisfy the requirements of section 84 of the Evidence Act. The Claimant informed the court while testifying in chief on 26th of February, 2020 that he printed the document (exhibit CW8) from his HP Desktop. I am therefore of the humble view that the Claimant met the requirements of section 84 of the Evidence Act. See Rowaye Jubril V. Federal Republic of Nigeria (2018) LPELR-43993(CA) and Hon. Henry Seriake Dickson V. Chief Timipre Marlin Sylva & Ors. (2016) LPELR-41257(SC).

 

6.11.    It is clear from exhibit CW8 that the Claimant may need to undergo thoracotomy surgery with a view to extracting the bullet/pellets lodged in his chest. Exhibit CW13 (the Imaging/Ultrasound Report of PMC Diagnostic Centre) indicates clearly that there are multiple pellets in the left chest wall of the Claimant. The urgency of this surgery cannot be underestimated to help save the life of the claimant, and relieve him of whatever pains he is going through.

 

6.12.    I am therefore satisfied that the claimant has proved his claims for the sum of N4,653,300.00 (Four Million, Six Hundred and Fifty Three Thousand, Three Hundred Naira) as special damages comprising of N490, 300.00 being medical bills incurred by the claimant, and N4, 163, 000.00 being the estimated cost of future treatments.

 

6.13.    With respect to relief ‘c’ for N100,000,000.00 (One Hundred Million Naira) general damages for excruciating pains, trauma and permanent partial incapacity, I am of the considered view that the negligence of the defendant is not even strictly on sending the claimant to sites with such huge sums of money to make payments that could have been done technologically through bank accounts with only one police officer who unfortunately lost his life during the robbery incident, but in not following up adequately on the treatment of the claimant. It is obvious that after his treatments at Gloryland Medical Centre Yenagoa and Life Care Centre Ltd Port Harcourt, the Claimant was abandoned to his fate despite the presence of bullets/pellets in his body that are yet to be removed. To even worsen the matter, barely six months after the robbery incident the defendant terminated his appointment even when he was still undergoing treatment.

 

6.14.    I have also taken into consideration the fact that from exhibit CW11 the claimant was 56 years old when the incident happened in 2014 which means that he is presently in his sixties. During his cross-examination the claimant informed the court that he started working with the defendant in 1994. The Defendant also pleaded at paragraph 10 of the Amended Statement of Defence that the Claimant was employed in 1994. The claimant was therefore in his twenties when he joined the services of the defendant, and worked with the defendant for more than 20 years. His youthful and productive years had been deployed in serving the defendant, and to terminate his appointment after sustaining the life threatening injuries without paying him terminal benefits it to say the least inconsiderate of the defendant.

 

6.15.    Having taken all these factors into consideration, I am of the view that the claimant is entitled to some general damages in this suit to take care of the pains, trauma and permanent partial incapacity of the claimant considering his earning power in the future. In the circumstance, the sum of N10, 000,000.00 (Ten Million Naira) is hereby awarded in favour of the Claimant as general damages. See Nigeria Bottling Plc V. Mr. Jokotade A. Ibrahim (2016) LPELR-41943(CA) and Tecno Mechanical Nigeria Limited V. Adisa Ogunbayo (1999) LPELR-6760(CA).

 

6.16.    In the final result, the Claimant’s case succeeds and the court hereby makes the following orders:

 

a.      The Defendant is to pay the Claimant the sum of N4,653,300.00 (Four Million, Six Hundred and Fifty Three Thousand, Three Hundred Naira) as special damages comprising of N490, 300.00 being medical bills incurred by the claimant, and N4, 163, 000.00 being the estimated cost of future treatments.

 

b.     The Defendant is to pay the Claimant the sum of N10, 000,000.00 (Ten Million Naira) as general damages.

c.      The terms of this judgment shall be complied with within 30 days from today, failing which it shall attract interest at 10% per annum until it is completely liquidated.

 

Judgment is entered accordingly.

 

I make no order as to cost.

 

 

Hon. Justice P. I. Hamman

Judge

 

REPRESENTATION:

 

I. G. Nwosu with Sixtus Ajoku and F. C. Ahise holding the brief of Emmanuel Asido for the Claimant.

J. A. David for the Defendant.