IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN IN LAGOS

 

BEFORE HIS LORDSHIP:                         HON. JUSTICE M. N. ESOWE

 

DATE: DECEMBER 13, 2022                   SUIT NO: NICN/LA/530/2016

 

BETWEEN

MR ADAMU BABANGIDA                                                   CLAIMANT                            

 

AND

SLAVA-YEDITEPE PROJECTS LIMITED               DEFENDANT

 

REPRESENTATION

Louis N Orji, Esq for the Claimant.

B. A. Ramoni, Esq with him Paul Ordam, Esq for the Defendant.

 

 

JUDGMENT 

INTRODUCTION

1.      The Claimant on the 15th of August, 2022 filed a General Form of Complaint claiming against the Defendant as follows:

 

a.      The sum of N95,500 (Ninety-Five Thousand Five Hundred Naira Only) being special damages against the Defendant.

b.      The sum of N21,904,500 (Twenty-One Million Nine Hundred and Four Thousand Five Hundred Naira Only) being general damages arising from two (2) separate industrial accidents, which the Claimant had while working for the Defendant the first of which led to the 3rd degree burns of the Claimant’s stomach and hands and the second of which led to the permanent loss of one of the Claimant’s left fingers due to the crass negligence of the Defendant.

c.       The sum of N100,000 (One Hundred Thousand Naira Only) being unpaid salaries for the months of June and July 2016.

d.      The sum of N50,000 (Fifty Thousand Naira Only) per month from the 1st day of August, 2016 until judgment is given in this case.

e.      Cost of the action to be assessed by the Court.

 

CLAIMANT’S CASE

2.      It is the Claimant’s case that he was employed by the Defendant as a welder and was working for the Defendant at its project site at Agbara in Ogun state. He pleaded that sometime in January 2016 and while working at the project site of the Defendant, he was ordered by an expatriate staff of the Defendant to put out a gas cylinder which had caught fire when in the process of doing that, the gas cylinder exploded on him and caused 3rd degree burns both at his stomach, hands and laps as a result of the negligence of the Defendant. That the Defendant treated the issue with levity as no proper medical treatment was administered by the Defendant and he had to treat himself with his personal money.

 

3.      He pleaded that while recovering from the burns, on the 2nd of February, 2016 and while he was working at the Defendant’s site, he was directed by the Defendant’s expatriate to use an automatic cutting machine which he was not trained to handle. That the expatriate staff who ordered him to use the automatic cutting machine did not tell him that the machine was on. That the machine in the process badly injured one of his left fingers. That rather than take the Claimant to a conventional hospital after the first aid administered on him the Defendant decided to take him to an herbalist at Agbara for treatment where the finger decayed and became putrid. He averred that initially the Claimant was taken to a conventional private hospital at Agbara where the Doctor on duty informed the Defendant that the bill for the treatment was N120,000 and instead opted to go to the herbalist who charged them N20,000.

 

4.      He averred that the Defendant created a very unsafe and dangerous environment for the Claimant to work in. The Defendant did not provide hand glove for the Claimant to wear while at work. The Defendant did not provide any industrial boots neither for the Claimant and did not train him on the use of the complex and complicated automatic cutting machine. He was not given any good emergency treatment after the accident. That the Defendant did not provide for dungaree nor overall to protect him and its workers. That his finger wouldn’t have been amputated if he was taken to a conventional hospital for treatment instead of the herbalist who mismanaged the finger and as a result it decayed.

 

5.      It is his averment that he had to leave the herbalist house to a hospital in Badagry from where he was referred to Lagos state University Teaching hospital and finally to National Orthopedic Hospital Igbobi Lagos where his finger was amputated. That he paid the sum of N75,000 (Seventy Five Thousand Naira) for the amputation of his finger. He pleaded that he wrote a petition to the Directorate of Citizens Rights, Alausa, Ikeja, Lagos against the Defendant. That it invited the Defendant to a meeting and the Defendant agreed to pay the sum of Nine Hundred Thousand Naira as full and final compensation which he rejected.

 

6.      He stated that the Defendant gave him a document titled letter of employment with effect from 30th of September, 2016 to sign but he refused then the Defendant ordered the security men to stop him from gaining access into it premises. It equally stopped his salaries since June, 2016. He pleaded that the initial payment made to the National Orthopedic Hospital was N120,500 and the Defendant refunded the sum of N105,000 leaving a balance of N15,500. That his Solicitors wrote to the Defendant on the 14th of July, 2016 but have gotten no response till date.

 

DEFENDANT’S CASE

7.      It is the case of the Defendant by an Amended Statement of Defence that the Claimant was not ordered by any staff of the Defendant to put out any gas cylinder nor did the Defendant cause burns to the Claimant. That it possesses strict on site rules regarding site workers and the use of equipment which protects all its workers from risk and places premium care on health and safety and ensures compliance with safety measures. That the scope of the Claimant’s job was welding of irons and any action taken was outside his scope. That despite his carelessness leading to the burns, the Defendant ensured he got proper medical treatment and it paid for his medical bills and gave him the sum of N30,000 for his general welfare and resumed his job after he was certified fit.

 

8.      It pleaded that the Claimant was not instructed by any staff to use any automatic machine which he was not trained to handle. That the Claimant demanded from one of the specialized operator Mr Obadiah Ishaku that he needed to cut some large iron into smaller pieces in order to make use of them. He informed the Claimant that he was busy but would cut it for him in due course. That dissatisfied with the response, he called his supervisor’s attention and the Supervisor instructed the specialized operator to immediately cut the Iron rods. Mr Obadiah Ishaku was able to cut some and asked the Claimant to make use of them pending the conclusion of his own task but the Claimant wouldn’t have any of that. That he had to report the incident to his supervisor who told the Claimant to begin his work with the ones cut already with the promise that Mr Obadiah would cut the remaining after he was done with his work. That the Claimant in a bid to impress his supervisor, neglecting the warning of the specialized operators and without training on how to operate the cutting machine and without wearing the personal protection equipment provided by the Defendant, operated the machine which led to the accident on his finger.

 

9.      That sequel to the accident, he was taken to its clinic for first aid then to Strong Tower Hospital, Agbara Ogun State. That consultation and initial treatment, it was confirmed that it was right to amputate the finger which the Claimant rejected and opted to use traditional treatment and was adamant on this notwithstanding the insistence on the Defendant to get proper medical attention from the hospital. That the Claimant stopped turning up to the project site but the Defendant paid him his salary and transport allowance for each week of his treatment. It averred that after three weeks of using the traditional treatment, the finger became infected and he returned on site to present the infected finger and he was referred General Hospital in Badagry and from where he was referred to National Orthopedic Hospital where his finger was amputated.

 

10. That it paid all the Claimant’s medical bills in the sumo N75,000 and approved monthly payment of N10,000 for his welfare and transportation. That it has never been negligent in providing proper and safe working environment for its employees on the project site and it provided protective and safety wears also.It is the Defendant’ averment that sometimes in 2016 it was invited to a mediation at the Directorate of the Citizen’s Mediation Centre for a meeting where it offered to financially assist the Claimant with the sum of N1,000,000.00but the Claimant rejected same and demanded for the sum of N5,000,000.00.

 

11. That it was desirous to employ the Claimant as its permanent staff as prior to the accident, he was a contract staff. That it never prevented the Claimant from entering its premises nor did it instruct him from coming to work. That the Claimant continues to reside in the staff quarters of the Defendant till date without disturbance. It averred that the Claimant’s salary was stopped in the month of May, 2016 as he never worked for the period. That it incurred the sum of N175,415 with respect to his medical care including reimbursement to him for any personal payments made regarding his treatment. The Defendant urged the Court to dismiss the claims of the Claimant.

 

12.            COMMENCEMENT OF TRIAL

 

13.            Hearing in this suit commenced on the 9th of November, 2021. The Claimant

testified for himself as CW and through CW2. They adopted their witness statement on oath dated 9/3/2018 and 15/7/16as their evidence. They tendered documents which were admitted and marked as exhibits C1 to C6 in support of his case. They were cross-examined by the Defendant’s counsel. The Defendant on the other hand testified through one Victor Oladipo, the Administrative Officer of the Defendant. He adopted his witness statement on oath dated 31/1/2018 as his evidence. He tendered documents which were admitted and marked as exhibits D1 to D10 in support of its case. He was cross-examined by the Claimant’s counsel.

 

14.            Parties caused their final written addresses to be filed at the close of trial, the Defendant filed its own on the 19th of July, 2022 canvassing a sole issue for determination thus:

 

15.            Has the Claimant established any cognizable case against the Defendant to be entitled to compensation for the alleged injury sustained as contained in the Complaint Form before this Honourable Court?

 

16. It is learned counsel submission that the Claimant in this case acted outside the scope of his duty to sustain the injuries for which he is before the Court to seek redress. He stated that the Claimant having voluntarily sustained the injury should not be heard to complain. He cited the cases of Afrabchem ltd v Owoduenyi [2014] LPELR 236131 CA. He stated that it is undisputed that the Claimant was employed as a welder and the injury complained of occurred in another department. He posited that the Claimant admitted that he offered to assist the Defendant’s officials when the gas cylinder incident occurred. He also stated that the Claimant asserted that he was treated, his salary was paid and given additional sum of N30,000. It is counsel position that all these goes to show that the Claimant was taken care of by the Defendant even thought his accident was self-inflicted.

 

17.  Counsel submitted that the Claimant has failed to establish a case to be entitled to a grant of the reliefs in his claim and in his claim for negligence. Counsel submitted that the Defendant was not negligent as it complies with the health and safety of its workers. He posited that CW2 confirmed that there is a clinic with trained doctor and nurses on the Defendant’s site. He submitted that the Claimant has failed to prove his assertion that the Defendant created an unsafe environment, failed to provide safety measure and equipment. Counsel submitted that it is the Claimant’s statement that he volunteered to operate the machine in defiance to the warnings of the specialized operator as only trained operators use the cutting machines and not the Claimant who was employed as a welder. He cited the cases of Imperial Chemical Industries Ltd v Shatwell [1965] AC 656; NSIMA v NBC Plc [2014] LPELR 22542 CA.

 

18. It is counsel’s contention that the Claimant who aggravates his injury cannot recover any damages. He cited the cases of Henry Ihebereme v Hartland Nigeria Limited Unreported suit No NICN/ABJ/172/2018; Udeagu v Benue Cement Co Plc [2005] LPELR 6170 (CA). He posited that the Claimant who first volunteered to assist in putting off a faulty cylinder for those engaged to do gas work and it exploded he also volunteered to cut iron rods by putting it on when he knew that the was not trained to use it. He submitted that the Defendant was not negligent before and after the incidence as it accorded the Claimant maximum care and attention as the negligent conduct of the Claimant resulted in the injuries he sustained. The defendant paid all the Claimant’s medical bills, he was also given monthly allowance of N10,000 for sundry expenses and he was never sacked by the Defendant. Counsel then urged the Court to so hold.

 

19. The Claimant on the 8th of August, 202 filed his written submission where in counsel on his behalf raised two issues for the Court’s determination:

 

20. Whether the Claimant has established his case before the Honourable Court on preponderance of evidence to entitle him to judgment.

 

21. Whether the evidence of the lone witness of the Defendant DW2 was hearsay evidence and therefore inadmissible.

 

22. Learned counsel arguing both issues together submitted that the Claims of the Claimant is rooted in the Negligence and to prove Negligence three conditions must be established;

Duty of care;

Breach of duty of care

Damage arising from the breach

He cited the cases of N.A.B Limited v Felly Keme Nigeria Limited [1995] 4 NWLR (Pt 387) @ 100 @pg106; Odinaka v Moghalu [1992] 4NWLR (Pt 233)@ pg 1 SC.

 

23. It is the contention of counsel that the Claimant has credibly established that the two accident that occurred to him while in the employment of the Defendant was done at the behest of instruction of the Defendant lest he risks being dismissed from his employment. He stated that it is the argument of the Defendant that the Claimant contributed to the negligence but they failed to state the particulars therefore this is fatal to their defence. Counsel continued to submit that the evidence of DW1 the lone witness of the Defendant is hearsay evidence and thus inadmissible as was not at the welding section when the injury occurred and also when the gas exploded. He got his information leading to his testimony from what his colleagues told him in the course of investigation. None of the Claimant’s colleagues was called not even his supervisor. He cited the case of Okereke v Umahi [2016] 11 NWLR (Pt 1524) @ 273 paras E-F.

 

24. Counsel submitted that the Defendant continued the Negligence when it decided to treat the Claimant with an herbalist rather take him to a hospital for proper medical treatment because the herbalist charges was cheap in the sum of N20,000.00. He posited that the argument of counsel that the Claimant voluntarily undertook the risk that gave rise to the two accident cannot stand as the cases cited are clearly distinguishable from the present as the act of the Claimant was done upon the instruction of the Defendant and if he refuses to carry out the instruction he will be sacked. Counsel submitted that the Defendant who it has been established failed to take the Claimant to a hospital now claims that it expended the sum of N175,000 a bill for medical treatment which claim was denied by the Claimant. He urged the Court to so hold.

 

25. The Defendant on the 12th of October, 2022 filed its reply on point of law where it raised two issues as follows:

i.                    The misconceived argument of the Claimant charactering the evidence of DW1 as hearsay evidence.

ii.                  The misconceived contention that the Claimant did not adduce evidence to show that the Claimant voluntarily assumed risk.

 

Counsel submitted that the Claimant has erroneously argued in paragraph 3.4 of the Written address that the evidence of DW1 is hearsay and inadmissible. He contended that the evidence of DW1 cannot be by any standard be regarded as hearsay as the evidence of DW1 is an account of facts made available to him in his official capacity as the Administrative Officer of the Defendant who receives the official report of the Defendant and keeps record of the Defendant’s staff including the Claimant. He cited the case of Ojo v Gharoro & Ors [2006] LPELR 2383 SC and urged the Court to so hold.

 

26. On the second issue, counsel in response to the argument of the Claimant that the Defendant did not adduce evidence to show that the Claimant voluntarily assumed risk submitted that the fact ordinarily should speak for itself as the accident did not occur in the normal cause of the Claimant’s duties as characterized by the legal maxim “res ipsa loquitor”. Counsel submitted that from the facts and evidence before the Court there’s nothing to show that the employment of the Claimant has been terminated by Defendant. He urged the Court dismiss the claims of the Claimant in its entirety.

 

COURT’S DECISION

27.             I have had an in-depth examination of the processes filed by the parties, their supporting documents, the testimonies of witnesses, documents tendered in buttressing their case and the written submissions of counsel, it is in view of this that I frame the following issues for the determination of this case, viz:

 

Whether or not the Claimant has proven his claims to be entitled to them?

 

On the preliminary issue raised by Claimant counsel in his written submission vide paragraphs that the evidence of DW amounts to hearsay and unreliable as he was not in the welding section when the incident occurred. In response Defence counsel by his reply on point of law posited that the evidence of DW1 is an account of facts made available to him in his official capacity as the Administrative officer of the Defendant and that the facts deposed to are facts obtained from information and documents made available to him in the course of his duties and responsibilities in the Company. He cited Section 39 of the Evidence Act, supra.

 

28.Now, by Section 37 of the Evidence Act supra “Hearsay means a statement (a) oral or written made otherwise than by a witness in a proceeding; or (b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.

 

The law is also trite that a piece of evidence is not hearsay and therefore admissible when the person making the statement discloses the source of the information and the name of the informant. In the case of ACN v. Nyako [2002] (Pt. 2) NSCQR page 560 at 567, the Supreme Court held that: "Therefore where the deponent has averred to an information not from his personal knowledge or witness account, it is mandatory that he discloses the source of that information…. This is in keeping with legal principles that on the face of it, hearsay evidence is inadmissible and so to be taken seriously such evidence needs it source be put on display including the name of the informant and the circumstances". See the case of Tukur v. Sadiq& Anor [2016] 40318 LPELR CA. From DW1 witness statement on oath dated 31st January, 2018 and by paragraphs 1 and 2 thereof, DW1 deposed thus:

 

“1. I am an Administrative Officer of the Defendant and by virtue of my position. I am conversant of the facts deposed to herein except stated otherwise.

2. I make this deposition with the authority of the Defendant.”

 

DW equally stated under cross examination that on the day of the gas explosion he was on site and observed that the Claimant had 3rd degree burn as a result also that he was at the site when the Claimant had the accident that amputated his finger.

 

29.From the above, the DW1 having expressly stated the source of his information in his witness statement in oath and the fact that he witnessed the two incidents that led to the accident of the Claimant therefore it cannot be said to be hearsay evidence. It is therefore in the light of this that I find that DW deposition is not hearsay evidence and thus admissible in evidence. I so hold.

 

30. It is the Claimant’s claim that he is entitled to the sum of N95,500 (Ninety-Five Thousand Five Hundred Naira Only) being special damages against the Defendant. It is the law that claims for money are in the realm of special damages and special damages will only be awarded if strictly proved and for this, the plaintiff ought to sufficiently particularise it to enable the Court decide whether all or part of it can be granted. In other words, to succeed in claim for special damages, it must be specifically pleaded and strictly proved. All that is required is that the Plaintiff should establish his entitlement to special damages claimed by credible evidence.  See the cases of Joseph v Abubakar [2002] 5 NWLR (Pt 759) 185; F.B.N v Banjo [2015] 5 NWLR (Pt 1452) 253. A careful perusal of the Claimant’s pleadings and evidence on record I find at no-where were the Claimant, specifically pleaded, specially particularized and credibly proved his claims in the sum of N95,000. What is more, nothing as the Court cannot award what was not pleaded and proven before it. It is in view of this that I find that the Claimant is not entitled to this claim in the respect. I so hold.

 

31. The Claimant claims the sum of N21,904, 500 (Twenty-One Million Nine Hundred and Four Thousand Five Hundred Naira Only) being general damages arising from two (2) separate industrial accidents, which he had while working for the Defendant the first of which led to the 3rd degree burns of the Claimant’s stomach and hands and the second of which led to the permanent loss of one of the Claimant’s left fingers due to the negligence of the Defendant.

 

32.  It the position of the Claimant that he demanded from one of the specialized operator that he needed to cut some large iron into smaller pieces in order to make use of them the operator refused to cut it. That he reported to his super visor but he was told by the supervisor to operate the machine himself and when he did, it cut his finger. The Defendant stated that the Claimant was not ordered by any staff of the Defendant to put out any gas cylinder nor did the Defendant cause burns to the Claimant.

 

33. That it possesses strict on site rules regarding site workers and the use of equipment which protects all its workers from risk and places premium care on health and safety and ensures compliance with safety measures. That the scope of the Claimant’s job was welding of irons and any action taken was outside his scope. That the Claimant was not instructed by any staff to use any automatic machine which he was not trained to handle. That in a bid to impress his supervisor, he operated the machine that cut off his finger. Defendant pleaded that despite his carelessness leading to the burns and accident on his finger, the Defendant ensured he got proper medical treatment and it paid for his medical bills.

 

34. The question that arises therefrom is does the Defendant owe the Claimant a duty of care and was that duty breached by the Defendant? It is a general principle of law that the tort of Negligence arises when a legal duty owed by the employer to the employee is breached and to succeed in action for negligence the Claimant must prove by the preponderance of evidence or the balance of probabilities that, the Defendant owed the Plaintiff a duty to exercise due care; that the Defendant failed to exercise due care or had breached the duty of care; and the Defendant’s failure was the cause of the injury suffered by the Claimant. See the cases of Mobil Oil v. Barbedos Cars Ltd[2016] LPELR-41603(CA);Nigerian Ports Plc v Beecham Pharmaceutical PTE Ltd [2013] 3 NWLR (Pt 1333) 454, Kabo Air Ltd v Mohammed [2015] 5 NWLR (Pt 1451) 38; Olam (Nigeria) Ltd v. Intercontinental Bank Ltd (2009) LPELR 8275 (CA).

35. Negligence is defined as the omission to do something which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would not do. Differently put it is the dearth of proper care, caution and attention; non-chalant behaviour or conduct, a state of mind which is opposed to intention and breach of a duty of care imposed by common law and Statute resulting in damage to the complainant. It is also the failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstance.

36. The term denotes culpable carelessness. See the cases of Mrs Felicia Durowaiye v Union Bank of Nigeria Plc [2015] 16 NWLR (Pt. 1484) 19; Chevron (Nig) Ltd & Anor v Kehinde Omoregha& 5 ors [2015] 16 NWLR (Pt. 1485) 336; Diamond Bank Plc v. Partnership Investment Co Ltd [2009] 18 NWLR (Pt 1172) 67. The most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a Claimant can prove by evidence the actual breach of duty of care against the Defendant the action must fail. See the cases of Benson v. Utubor [1973] 3 SC. 19; G.K.F.I (Nig) ltd v. NITEL PLC [2009] 15 NWLR (PT. 1164) 344.SC.

37. Now, an important question to answer here is, whether or not the Defendant owed the Claimant a duty of care to ensure his safety while in the course of its employment? It is trite that an employer owes their employees and clients a duty of care to exercise reasonable care and skill in rendering the services for which they are engaged. See the locus Classicus case of Donoghue v Stevenson [1932] AC 562; Orhue v. N.E.P.A. [1998] 7 NWLR (Pt.557)187.It is settled law that Negligence is a Tort and it is complete and actionable when three conditions are satisfied, these are;

The defendant owed a duty of care to the Claimant;

The duty of care was breached; and

The Claimant suffered damages arising from the breach.

 

38. As earlier reiterated, the Claimant must prove the three conditions by preponderance of evidence or on balance of probabilities to succeed in an action rooted in negligence and once these requirements are satisfied, the Defendant in law will be held liable in negligence. See the cases of Lufthansa German Airlines v William Ballanyne [2013] 1 NWLR (PT 1336) P 527 Abubakar v. Joseph [2008] 13 NWLR (Pt 1104) 307, Iyere v. Bendel Feeds and Flour Mills Ltd [2008] 18 NWLR (Pt 1119) 300.

 

39. There is no contradistinction that the Claimant was employed by the Defendant to work for it. It is equally not in doubt that the accident occurred in the premises of the Defendant while at work. However, the point of variance is that to the Claimant, the accidents occurred out of the negligence of the Defendant by not protecting him from harm in its premises in the course of his work which resulted to the burns and that the cutting machine he operated was done without formal training. To Defendant, the Claimant acted outside the scope of his duties when he operated the cutting machine despite the warnings of his supervisor.

 

40.It is the law that the scope of an employer’s duty to its employees is to take reasonable care for the safety of his workmen and other employee 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; however, it is not restricted to these matters. See the cases of Avon Crown Caps & Container Nig. Ltd v Bamigboye [2005] 17 NWLR (Pt 954) 275; Davie v New Merton Board Mills Ltd [1958] 1 QB 201 at 237-238.

 

41.As stated Supra what is in contention is whether or not the Defendant failed in its duty of care towards the life and safety of the Claimant in its establishment. Another pertinent issue to consider is, was the Claimant provided with safety/protective gadgets; the Defendant in denial of the Claimant’s assertion that he was not provided with safety equipment by the Defendant stated that its employees were duly provided with safety working gadget and tips to safety procedures, including protective clothing such as shields to protect personnel from UV light to ensure that all welders were completely protected against any form of personal injury.

 

42.It is the law that he who asserts, has the legal burden to prove. The rationale behind this principle is that judgment will be given against him, if no evidence was adduced in a case. See the case of John F. Alaribe v Chief Jerry Okwuonu [2016] 1 NWLR (Pt. 1492) 41.

 

43. To the arguments of both parties with respect to the burns and the accident received by the Claimant in its premises, the question to ask is was the Claimant provided with protective and safety wears sequel to the incident? And with regards to the accident that led to the amputation of the Claimant’s finger, the question to answer is since it has been established by both parties that the Claimant was without formal training on the use of the cutting why was he still allowed to make use of same in the Defendant workplace?

 

44.It is an age long principle that it is the duty of a Company at common law, not to only provide safety protective equipment to its employees but most importantly to ensure that they are used by strict orders and effective supervision. See the case of Western Nigeria Trading Company Ltd v. BusariAjao [1965] NMLR 178. Section 23 of the Factory’s Act Cap F1 LFN, 2007 provides thus:

 

No person should be employed or allowed to work on any machine of process liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be taken or observed, or must be under adequate supervision of a person who has a thorough knowledge and experience of the machine.”

 

45.The law is trite that when a statutory duty/obligation is imposed on a party, and there is breach of that duty/obligation which is a cause of that accident the party who breached that duty will be held liable for negligence. See also the case ofIyere v Bendel Feeds Flour Mills Ltd [2008] 18 NWLR (PT 119) 300.

 

46.The law is settled that it is the duty of a Company at common law, not to only provide safety protective equipment to its employees but most importantly to ensure that they are used by strict orders and effective supervision. See the cases of Western Nigeria Trading Company Ltd v. Busari Ajao [1965] NMLR 178; Ola Suleiman v Hongzing Steel Company Limited unreported Suit No NICN/LA/73/2011 Judgment delivered on 26th of February, 2015.

 

47.It is obvious from the above highlighted provision that, there is onerous responsibility/obligation on the employers of labour to put adequate safety measures in place to ensure protection, health and well-being of their employees in the course of their employment relationship. I say so as it is so evident on record that the Defendant failed or refused to substantiate with cogent and credible evidence in prove of it claims that it provided the Claimant with safety equipment to protect himself from the burns he received while in its premises for work and assuming that it did, is there a strict instruction for all its workers to use the protective equipment while on site? This, the Defendant did not plead and prove.

 

48.There is absolutely nothing on record in proof of the Defendant’s assertion, not even a picture of it before the Court or any kitted staff of his or even samples of the safety gadgets in Court. DW stated that the Defendant possesses strict on site rules regarding site workers and the use of equipment which protect all its workers from risk but did not say that it adequately trains its staff to take safety as their utmost priority while at work. The Defendant did not equally call the Claimant’s supervisor and the alleged Mr. Obadiah Ishaku to testify.

 

49.The argument of the Defendant of that despite its warning to the Claimant not to operate the cutting machine the Claimant failed to heed to its warning and hence the accident which occurred to him was of his making. With respect to this argument I wish to say that this argument of the Defendant is untenable because it is reasonably expected that the Defendant as an employer must definitely have laid down rules and penalties attached to disobedience.

 

50.I do not want to believe that the Claimant will want to willingly endanger his life all in a bid to impress his Supervisor as the Defendant wants the Court to believe. It is settled law that “where injury occurs from the breach of statutory duty or in any other situation where the law allows a term to be implied into the contract, it is not enough for the employer to merely prove that the employee accepted the work or continued to do the work with full knowledge of the risk involved, he must go further to prove that the employee with full knowledge of the risk involved, undertook with full appreciation that the risk would be on him. The mere knowledge of the danger is not sufficient. See the case of Bowater v Borough of Rowley Regis [1944] 1 KB 465.”

 

51.In the case of Smith v Charles Baker& Sons [1891] UKHL 2 the House of Lords came up with a definite position that “an employee engaged to hold a drill in the process of which one of the stones slipped from the crane and injured the plaintiff causing injury was entitled to compensation and that volenti non fit injuria did not apply. Furthermore, the fact that the employee continues in his work as contended by the appellant does not mean that he consented to incur the risk which he may encounter in the course of work, the employee might have continued in the work only because he does not want to loose his only means of livelihood. In such a case it is the employee’s poverty and not his ‘will’ which consented to incur the danger. See Thrussel v Handside [1888] 20 QBD 359 @364”

 

Flowing from the above, it is clear that there is nothing to evince that the injury which happened to the Claimant was his own making. It is in the light of this that I find that the Defendant failed in its duty of exercising reasonable care towards the safety and wellbeing of the Claimant while in the course of its employment, which caused/resulted into the injury the Claimant sustained. I also find that the Claimant has succeeded in making out a case of negligence against the Defendant for exposing him to the injuries he sustained without providing him safety kits and adequate supervision. I so find and hold.

 

52. The Claimant prays to the Court to grant an Order directing the Defendant to pay the sum of N21,904, 500 (Twenty-One Million Nine Hundred and Four Thousand Five Hundred Naira Only) being general damages arising from two (2) separate industrial accidents, which he had while working for the Defendant. Having held that the Claimant has succeeded in establishing his case in Negligence, what are his entitlement/s if any? As reiterated supra, the natural consequence of a finding of Court on negligence is liability in damages. See the cases of Iyere v Bendel Feeds v Flour Mills Ltd supra Chaquary v Yakubu [2006] 3 NWLR (PT 9660 138.The Claimant led evidence as to the injury of the burns and accident on his finger by Exhibit C3 He also testified that his finger was amputated. He showed it to the Court and I confirmed it to be true during trial together with the photograph taken after the accident, exhibit C3. There is no dispute as to the injury resulting from the accident.

 

53. By Section 13 of the National Industrial Court, Act, 2006, this Court is empowered to administer both law and equity concurrently. Also by Section 19(d) of the same Act supra, the Court is also vested with authority in all other cases and where necessary make any appropriate order, including an award of compensation or damages in any circumstance contemplated by this act or any act of national assembly dealing with any matter that the Court has jurisdiction to hear. Furthermore, in the case of Mr Kurt Severinsen v Emerging Markets Telecommunication Services Ltd [2012] 27 NLLR (Pt 78) 374 NIC, this Court in explaining it essence, quoted with approval the instructive and incisive holding of the Supreme Court of India in the case of NTF Mills Ltd v The 2nd Punjab Tribunal, AIR [1957] SC 329, to the effect that;

 

54. The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.

 

55. The law is trite by the decision of the apex Court in Hamza v. Kure [2010] 10 NWLR (Pt. 1203) 630 S.C, that in personal injury, pain, discomfort and permanent scary even though these are not qualified in monetary terms, the Claimant is entitled to reasonable general damages. I find that Claimant is entitled to damages for the negligent act of the defendant resulting in the injury he sustained at its factory. It is therefore, pursuant to Sections 13 and 19 (d) of the National Industrial Court, Act, supra that I award the sum of N8,000,000.00 (Eight Million Naira) as damages/Compensation to the Claimant against the Defendant.

 

56.The Claimant claim the sum of N100,000 (One Hundred Thousand Naira Only) being unpaid salaries for the months of June and July 2016. It is the Claimant’s pleading that the Defendant sometimes in June, 2016 ordered its security Men not to grant him access to its premises and also stopped paying his salaries. The Defendant in response pleaded that the Claimant salary was stopped in the month of May, 2016 due to his unilateral decision to abstain from work.

 

57.It is the general rule of evidence that he who asserts must as a matter of fact prove the existence of his assertion failure of which his claim is bound to fail. See Section 131 of the Evidence Act, 2011 and the cases of Akhigbe v Enabonmuna [2019] LPELR 46466; Liafa v. Kyauta [2018] LPELR 45257 CA.I have carefully examined the documents on record and I find at nowhere the Claimant adequately proved his claims cogently to entitle him it. A mere assertion without more cannot be enough to grant the Claimant’s claim. He has to show evidence evincing his claims. In the absence of nothing of such adduced by the Claimant, his claim in this regards fails. I so find and hold.

 

58. The Claimant’s claims that he is entitled to the sum of N50,000 (Fifty Thousand Naira Only) per month from the 1st day of August, 2016 until judgment is given in this case. It is apt to say that the claims of the Claimant in this instance is futuristic and it is the law of common that a worker is not entitled to wages/salary for work not done. See the case of Abdulraheem & Ors v. Olufeagba & Ors [2006] LPELR-11817(CA). The claimant having not worked for the period he claimed, he is therefore not entitled to. I so find and hold.

 

59. With respect to the Claimant’s claim for cost, it is the law that cost is at the discretion of Court which must be done judicially and judiciously. See the cases of Doyin Motors Ltd v. SPDC (Nig) Ltd &Ors [2018] LPELR – 44108 (CA); Julius Berger (Nig) Plc v. IGP &Ors [2018] LPELR – 46127 (CA). Equally by Order 55 Rule (1) of the National Industrial Court of Nigeria Rules, 2017 that cost is awarded at the discretion of the Court. The Claimant having not succeeded in the most part of his claims against the Defendant is not entitled to cost. I so find and hold.

 

60. It is obvious from all the above that Claimants’ claims succeed in part and for the avoidance of doubt, I declare and order as follows:

 

1.      That the Claimant is not entitled to the sum of N95,000 as special damages.

2.      That the Claimant is entitled to the sum of N8,000,000.00 (Eight Million Naira Only) as damages.

3.      That Claimant claims c and d fail.

 

No award as to cost.

Judgment is entered accordingly.

 

 

Hon. Justice M. N. Esowe, FCIArb.

Presiding Judge