IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT-HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT-HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE F. I. KOLA-OLALERE, (FCIArb) (UK)
Dated: October 11, 2023 Suit No: NICN/PHC / 139/2018
Between:
Uche Okwudiri Weli Claimant
And
1. Schlumberger Support Services
Nigeria Limited
2. Schlumber Nigeria Limited Defendants
Representation:
O.O. Eriwona (Mrs.) for the Claimant.
O. Ndubuisi for the Defendants
.
COURT’S JUDGMENT
1. On December 3, 2018 the claimant sued the defendants by way of Complaint seeking for the Court’s determination of these reliefs:
i. The sum of N500,000,000.00 (Five Hundred Million Naira) only being damages for pain and suffering, loss of amenities of life of expectation and enjoyment of life associated with the injury suffered by the claimant in 2009 when the claimant slipped on Rig floor in the course of performance of the defendants work, which injury was compounded by the defendants’ medical personnel.
ii. The sum of N5,000,000.00 (Five Million Naira) only being special damages representing payment for prescribed drugs purchased by the claimant.
iii. The sum of N90,000,000.00 (Ninety Million Naira) only being general damages for future on-going medical expenses attracted to be incurred by the claimant.
iv. The sum of N239,909.02 (Two Hundred and Thirty Nine Thousand, Nine Hundred and Nine Naira, Two Kobo) representing 90% of the basic salary of the claimant being employee compensation due to the claimant monthly for life under the Employees’ Compensation Act, 2010.
v. A Declaration that the action of the defendants in terminating the claimant’s Contract of Employment with the defendants’ letter dated 16/4/2015 and titled “Redundancy” is unlawful, wrongful, a breach between the claimant and the defendants and a violation of Labour Act, Cap L1, Laws of the Federation of Nigeria, 2004.
vi. An Order of Court setting aside the letter dated 16/4/2015 titled “Redundancy” issued to the claimant by the defendants for being illegal, a violation of the Contract of Employment between the defendants and violation of the Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004.
vii. The sum of N5,000,000.00 (Five Million Naira) being cost of this Suit.
2. Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response, the defendants entered appearances through its counsel and filed their Statement of Defence together with other processes in compliance with the Rules of this Court.
3. The Case of The Claimant As Pleaded
The case of the claimant is that he was employed by the Defendants in 1998 and in 2002 as a Maintenance Technician Trainee (MTT) and that his job involved rotational off-shore duty in an Oil-Rig. That sometime in 2009, he worked on oil-Rig for three weeks and upon completion of the three weeks, he was sent back to the rig by the defendants for another three weeks without allowing him to rest. He continued that in the course of work after returning to the Rig this second time, he slipped and fell because the rig floor was covered with slippery sound control gel.
4. The Claimant further averred that he felt sharp pain during the incident which resulted in the medical condition called “Lumber Disc Prolapse and Cervical Spondy Losis”. He went on that he had attended various hospitals and it was confirmed that his injury has created a spinal depression and that as his health worsened, instead of the Defendants pushing for further medical examination and operations, they declared him redundant in violation of the law in the Oil and Gas Industry in Nigeria. The claimant continued that the Defendants also failed, refused and neglected to pay him his redundancy benefits.
5. The Case of the Defendants as Pleaded
The case of the Defendants as pleaded on the other hand is that the Claimant was employed by Schlumberger (Nigeria) Limited (the 2nd defendant) as a Maintenance Technician Trainee and subsequently as a Maintenance Technician until his employment was terminated vide a letter dated April 16, 2015 and titled “Redundancy”. That nothing in the personnel records maintained by the Defendants for the Claimant indicates that he was at any time in 2009 assigned to an offshore rig duty, much less assigned on rotation for a period of three weeks as spuriously alleged by him.
6. The defendants continued that the Claimant did not follow or comply with the Defendants’ safety processes which he has been duly trained as he did not submit an incident report to the Defendants’ Team Lead for the Defendants’ client to create a record that the incident which the Claimant premised his allegation actually occurred. The defendants went on that no safety incident occurred on board of any rig, which the claimant was mobilized to work on at the material time. They maintained that the Claimant’s health condition post-surgery did not worsen as he spuriously alleged, rather it improved as he resumed work with lighter job functions which did not require him to be involved in any heavy lifting activities as confirmed by the medical report of July 26, 2013 issued by Rehoboth Specialist Hospital on his current health condition at the material time.
7. The Defendants denied liability to pay the Claimant any compensation arising from the injury and specifically mentioned Nigeria Social Insurance Trust Fund (NSITF) as the body responsible for payment of compensation for the Claimant’s injury suffered in the course of employment, it is rightly established.
8. During hearing of the case, the claimant testified by given evidence as CW1 while the defendant called one witness, Edu Inyang as DW1. The Court subsequently directed counsel to the parties to file their respective Final Written Addresses in line with the Rules of this Court and the two counsel complied with the Court’s direction.
9. Defendants’ Final Written Arguments
In the defendants’ final written address at page 364 of the record, their counsel raised two preliminary issues on the competence of the Claimant’s suit as follows:
i. Whether given the facts of the Claimant’s suit in his Statement of Facts and Reliefs/Claims, the Claimant’s action against the Defendants is not statute barred in light of Sections 16 and 17 of the Rivers State Limitation Law, Cap. 80, Laws of Rivers State of Nigeria, 1999.
ii. Whether having regard to the content of the “Release of Claim” Indemnity Agreement dated June 3, 2015 executed by the Claimant and the Defendants, whether the Claimant can seek and obtain the reliefs/claims in paragraph 30 (1), (2), (3), (5), and (6) of his Statement of Facts against the Defendants.
10. Arguing the first preliminary issue, counsel referred the court to the cases Madukolum v. Nkemdilim [1962] 25 CNLR 341 and Magaji v. Matari [2008] 8 NWLR (Pt.670) P.722 -735, paras. D –F, 736, paras. D – E and Sections 16 and 17 of the Limitation Law, Cap. 80, Laws of Rivers State of Nigeria, 1999 (“the Law”). He continued that this Court lacks the requisite jurisdiction to entertain and determine his claim for the tort of negligence and other matters connected with it as vividly represented in paragraph 30 (1), (2), and (3) of his Statement of Facts.
11. Counsel submitted that a cursory and in-depth review of the Claimant’s averments in paragraph 10 (a), (b), and (c) of his Statement of Facts, his oral evidence in paragraph 11 (a), (b), and (c) of his Witness Statement on Oath, and his relief/claim in paragraph 30 (1), (2), and (3) of his Statement of Facts will reveal one irrefutable and irresistible fact that the Claimant’s action against the Defendants is unequivocally grounded in the law of tort of negligence which began to run in 2009 when the Claimant allegedly had the accident on the basis of which he instituted his suit against the Defendants in 2018 after a period of nine (9) years, contrary to the permissible five (5) years prescribed in Section 16 of the Limitation Law, Cap. 80, Laws of Rivers State of Nigeria, 1999 (“the Law”). He submitted that the claimant’s case is statute-barred and cannot give rise to any legal relief/claim before any court of law; referring to the cases of Abubarkar v. Michelin Motors Services Ltd. (No.1) [2020] 12 NWLR (Pt. 1739) 555 @ 569, paras. G-H; 570, para. A; Toyin v. P.D.P. [2019] 9 NWLR (Pt.1676) 50 @ 60-61, paras. H-C and Bien v. P.D.P. [2019] 12 NWLR (Pt.1687) 377 @ 408, paras. A-E,
12. Arguing the preliminary issue two, counsel submitted that by virtue of the “Release of Claim” Indemnity Agreement, Exhibit D6 voluntarily executed by the Claimant and the 2nd Defendant, the Claimant’s relief/claims regarding his employment and termination thereof; retirement, redundancy, resignation of his employment, including without limitation to any or all injury (fatal, permanent, temporary or otherwise), illness and/or damages arising or resulting therefrom have all being contractually and legally forfeited and extinguished. As such, the Claimant can no longer institute any action seeking any relief in connection with his employment and termination thereof; retirement, redundancy, resignation of his employment, including without limitation to any or all injury (fatal, permanent, temporary or otherwise), illness and/or damages arising or resulting therefrom.
13. Counsel submitted that in the absence of fraud, mistake, deception, or misrepresentation, the parties to a contract are bound by the terms of their agreement, citing Edilcon (Nig.) Ltd. v. U.B.A. Plc. [2017] 18 NWLR (Pt.1596) 74 @88, paras. D-F; Gbedu v. Itie [2020] 3 NWLR (Pt. 1710) 104 @ 129-130, paras. H-A; Unity Bank Plc. v. Ahmed [2020] 1 NWLR (Pt.1705) 364 @ 388-389, paras. F-A, paras. E-G; Citi Int’l (Nig.) Ltd. v. Ikediashi [2020] 13 NWLR (Pt. 1741) 337 @ 366, para. H & Unilife Dev. Co. Ltd. v. Adeshigbin [2001] 4 NWLR (Pt.704) 609, @ 629, paras. D-E & 639-640, paras. H-C.
14. Counsel went on that the Claimant having made representations to the Defendants in Exhibit D6 confirming that he has voluntarily waived his rights and entitlements mentioned above and the 2nd Defendant having altered it position to act on the Claimant’s unequivocal representations, the Claimant is estopped from blowing hot and cold with reference to the same rights and entitlements that he had voluntarily relinquished in consideration of the sums of money paid to him by the 2nd Defendant in Exhibit D6 transaction. Counsel continued that the Claimant is not allowed to approbate and reprobate at the same time with respect to his rights and entitlements that he had voluntarily relinquished under Exhibit D6; citing Section 169 of Evidence Act, 2011 (“EA”) and the cases of C.B.N. v. Interstella Comm. Ltd. [2018] 7 NWLR (Pt.1618) 294 @ 335-336, paras. C-B; 359-360, paras. C-C.; C.N. Okpala & Sons Ltd.-V- Nigeria Breweries Plc. [2018] 9 NWLR (Pt.1623) 16 @ 34-35, paras. H-C. & Unilorin v. Obayan [2018] 13 NWLR (Pt.1635) 72 @ 82-83, paras. F-B and to Section 169 of the Evidence Act.
15. On the Admissibility of the Medical Reports Tendered by the Claimant in support of his case, Counsel objected to the admissibility of Exhibits C8; C9; C11; C12; C13; C14, C16; C17; C18; C19; and C20 on the ground that these medical reports were not tendered by their makers who alone can be cross-examined on them; and where a person who did not make it tenders it, the Court ought not attach probative value to them. The ground of objection to Exhibit C20 is that it is tainted with forgery, therefore is inadmissible.
16. Counsel further referred the Court to the cases of Belgore v. Ahmed [2013] 8 NWLR (Pt.1355) 60 @ 100, paras. E-F; Ladoja v. Ajimobi [2016] 10 NWLR (Pt.1519) 87 @ 146-147, paras. G-A paras. & Nimasa v. Hensmore (Nig.) Ltd. (2015) 5 NWLR (PT.1452) 278 @ 312-313, paras. A-B.
17. Counsel went on that if we compare Exhibits C20 and C13, we will see that both documents were signed by different persons. The signatures on both exhibits are materially different from each other. He continued that a combined probative evaluation of the Defendants’ evidence in paragraphs 22 and 23 (a-d) of their sole witness’ Witness’ Statement on Oath and Exhibits D4 and D8 establishes the undisputable and irrefutable conclusion/evidence beyond reasonable doubt that Exhibit C20 was forged by the Claimant to fraudulently and mischievously hoodwink the Court into believing its content and consequently act on the same to reach a judicial conclusion.
18. Counsel proceeded to formulate the following issues for the determination of the court on the substantive dispute between the parties:
i. Whether by the evidence led at the trial, the Claimant has proved that the Defendants were responsible for the alleged incident that purportedly gave rise to this suit and that the Defendants were liable to pay the sum of N500,000,000.00 (Five Hundred Million Naira) being damages for pain and suffering, loss of amenities of life of expectancy and enjoyment of life he purportedly suffered as a result of the alleged injury to him.
ii. Whether the Claimant is entitled to his claim of the sum of N5,000,000.00 (Five Million Naira) only or any sum at all against the Defendants as special damages for payment of prescribed drugs purportedly purchased by the Claimant.
iii. Whether the Claimant is entitled to his claim of the sum of N90,000,000.00 (Ninety Million Naira) only or any sum at all against the Defendants, as general damages for future on-going medical expenses he would incur.
iv. Whether the Claimant is entitled to his claim of the sum of N239,909.02 (Two Hundred and Thirty-Nine Thousand, Nine Hundred and Nine Naira, Two Kobo) as employee compensation from the Defendants under the Employees’ Compensation Act, 2010.
v. Whether the Claimant has proved that the termination of his employment by the 1st Defendant vide the letter dated 16th April 2015 was unlawful, wrongful, a breach of the Labour Act, Cap.1 Laws of the Federation of Nigeria 2004 and therefore liable to be set aside.
vi. Whether the Claimant’s claim or relief in paragraph 30 (7) of his Statement of Facts is known to Nigerian law and grantable.
19.0. Arguing issue one, counsel submitted that Claimant failed to prove or establish by credible and cogent evidence that the Defendants were responsible for the alleged incident that purportedly gave rise to his suit and that the Defendants were liable to pay the sum of N500,000,000.00 (Five Hundred Million Naira) being damages for pain and suffering, loss of amenities of life of expectancy and enjoyment of life that occurred as a result of the injury that he suffered in the purported safety incident of 2009 on a rig managed by the Defendants for their client. He maintained that he who asserts the existence or non-existence of a certain state of facts has the onus in law to establish the existence or non-existence of the alleged state of facts, citing Sections 131(1) and 133(1) of the Evidence Act, 2011; A-G., Oyo State v. Fairflakes Hotels (No.2) [1989] 5 NWLR (Pt.121) P.255 @ 285, paras. F-G and Ayeni v. Adesina [2007] 7 NWLR (Pt.1033) P. 233 @ 264, paras. A-B.
19.1. Counsel went on that from the totality of the evidence (examination-in-chief and cross-examination) given by the Claimant and the Defendants with respect to the disputation of the material allegation of occurrence or otherwise of the purported safety incident of year 2009, it has been established that if the purported safety incident of 2009 occurred, it should have been reported by the Claimant or any of the Defendants’ employees that witnessed it and consequently documented through the Defendants’ mandatory recorded process specifically designed for such incident.
19.2. Counsel submitted again that the Claimant’s failure to produce any documentary evidence of the Defendants’ mandatory record of the purported safety incident of 2009 and his failure to call in aid the evidence of the Defendants’ employees who witnessed the said purported safety incident, proved or established one irresistible and incontrovertible fact: that the Claimant has failed to discharge his evidential burden in Sections 131, 132, and 133 of the Evidence Act, 2011 to prove that the purported safety incident of 2009 on the basis of which his suit against the Defendants is premised occurred, citing Oyo State v. Fairflakes Hotels (No.2) (Supra) @ 285, Paras. F-G and Ayeni v. Adesina (Supra) @ 264, Paras. A-B.
19.3. In addition, counsel submitted that the Claimant did not suffer any damage occasioned by the negligent breach of the Defendants’ duty of care owed to him as an employee, citing Macfoy v. United Africa Company Ltd. [1961] 3 All ER 1169 @ 1172, paras. I & Ighreriniovo v. S.C.C. (Nig.) Ltd. (Supra) @ 156, Paras. F-H. He went on that the claimant is not entitled to his claim of the sum of N500,000,000.00 (Five Hundred Million Naira) or any sum at all as damages for Pain and suffering, loss of amenities of life of expectation and enjoyment of life purportedly occasioned by the alleged negligence of the Defendants having failed to prove or establish that he suffered any injury resulting from the duty of care the Defendants owed him as an employee.
20.0. Arguing issue two, counsel submitted that the Claimant failed to specially plead his claim of special damages in his Statement of Facts as mandatorily required by law. That the Claimant also failed to plead the items and the cost of the items that culminated into his claim of N5,000,000.00 (Five Million Naira) with the particularity as is necessary in his Statement of Facts. He referred the Court to Sections 131(1), 132, and 133(1) of the Evidence Act, 2011; A-G. Oyo State v. Fairflakes Hotels (No.2) [1989] 5 NWLR (Pt.121) P.255 @ 285, paras F-G., Ayeni v. Adesina [2007] 7 NWLR (Pt.1033) P. 233 @ 264, paras. A-B.; Ighreriniovo v. S. C. C. (Nig.) Ltd. (Supra) @ 153-154, paras. H-A.; Ibeanu v. Ogbeide (Supra) @ 12, paras. C-D, Amodu v. Amode (supra) @ 373, paras. A-B & Morohunfola v. Kwara State College of Technology (supra) @ 519, para. A; 525-526, para A.
20.1. Counsel submitted that the Claimant failed to specially plead his claim of special damages in his Statement of Fact as mandatorily required by law and also failed to strictly prove his claim of special damages in paragraph 30 (2) of his Statement of Facts as he failed to produce legal evidence of the highest probable value and weight of the items and the cost of the items that culminated in his claim of the sum of N5,000,000.00 (Five Million Naira) as special damages which purportedly arose from the purported safety incident of 2009 and the injury he allegedly suffered. Counsel continued that an award of special damages must be strictly pleaded and proved, and that the court does not make such award based on guesses, conjectures or speculations, citing Eneh v. Ozor [2016] 16 NWLR (Pt.1538) 219 @ 238, paras. G-H & S.P.D.C. (Nig.) Ltd. v. Tiebo VII [2005] 9 NWLR (Pt. 931) 439 @ 472, paras. F-G; 473, paras. F-G.
21.0. Arguing issue three, counsel submitted that general damages are those relief that the law presumes to flow from the wrong committed by the defendant. He went on that it is the loss which flows naturally from the defendant’s act, citing F.B.N. Plc. v. A. G. Fed. [2018] 7 NWLR (Pt. 1617) 121 @ 162, paras. B-D, 175, paras. A-C; Elf Pet. (Nig.) Ltd. v. Umah [2018] 10 NWLR (Pt.1628) 426 @ 448, paras. B-D; Ighreriniovo v. S. C. C. (Nig.) Ltd. [2013] @ 153, paras. F-G. & ACME Builders Ltd. v. K.S. W. B. [1999] 2 NWLR (Pt. 590) 288 @ 305, paras. F-H. Sections 131 & 132 of the Evidence Act, 2011. The Supreme Court in Benjamin v. Kalio [2018] 15 NWLR (Pt.1614) 38 @ 56, paras. C-D.
21.1. Counsel submitted that in the instant case, the claimant failed to prove or establish the fact that: (1) he was posted to the rig managed by the Defendants for their client in 2009 where the purported safety incident of 2009 allegedly occurred; (2) he was present on the said rig where the purported safety incident of 2009 occurred; and (3) he suffered an injury from the breach of duty of care owed to him by the Defendant as an employee on the rig managed by the Defendants for their client in 2009. He further submitted that the award of general damages in tort of negligence is inextricably tied to the wrongful act or omission of the defendant that precipitated the injury suffered by the claimant.
22.0. Arguing issue four, counsel referred the court to paragraphs 26 and 27 of his Statement of Facts and paragraph 29 (b) – (j) of their Amended Joint Statement of Defence. He urged the Court to further take judicial cognizance of the fact that the Defendants’ evidence in respect of this material allegation and claim was not controverted neither was it discredited by the Claimant’s Counsel under cross-examination on 01/07/2021. He contended that the law is that he who asserts the existence or non-existence of a certain state of facts has the onus of establishing the existence or non-existence of the alleged state of facts.
22.1. Counsel submitted that the burden of proving the Claimant’s claim/relief in paragraph 30 (4) of his Statement of Facts is on the Claimant and that the Claimant’s claim in the said paragraph 30 (4) can only succeed on the strength of his case and not on the weakness of the case of the Defendants, citing Sections 131(1) and 133(1) of the Evidence Act, A-G, Oyo State v. Fairflakes Hotels (No.2) [1989] 5 NWLR (Pt.121) P.255 @ 285, paras. F-G. & Ayeni v. Adesina [2007] 7 NWLR (Pt.1033) P. 233 @ 264, paras. A-B. Counsel again submitted that the claimant has not proved to the Court that (i) by the provisions of the ECA, that he is entitled to compensation from the Defendants; and/or (ii.) the Defendants are obligated under ECA to pay him compensation for the injury he allegedly suffered from the purported safety incident of 2009 after the Defendants had paid their mandatory statutory contribution under ECA for their employees including the Claimant; (iii) that the Defendants are obligated under the ECA to pay him the sum of N239,909.02 (Two Hundred and Thirty-Nine Thousand, Nine Hundred and Nine Naira, Two Kobo) being claimed as employee’s compensation for work-place related injury for failing to pay their mandatory statutory contributions to NSITF for the Claimant.
22.2. Additionally, counsel submitted that the Claimant’s claim for the sum of N239,909.02 in paragraph 30 (4) of his Statement of Facts as compensation for work-place injury he allegedly suffered as a result of the purported safety incident in 2009 aboard a rig managed by the Defendant for their client falls within the class of special damages which must be strictly pleaded and proved with particularity and exactitude that is required in law, citing Abi v. CBN [2012] 3 NWLR (Pt.1286) P.1 @ 42 paras. F-H.; X.S. (Nig.) Ltd. v. Taisei (W.A.) Ltd. [2006] 15 NWLR (Pt.1003) P.533 @ 551, paras. B-E.; A.S.E.S.A. v. Ekwenem [2009] 13 NWLR (Pt.1158) P. 410, @ 434, para. G.; & British Airways v. Atoyebi [2014] 13 NWLR (Pt. 1424) P. 253 @ 286, paras. F-F, 287; paras. F-G; 289, paras. B-C.; & 303, paras. C-D.
23.0. Arguing issue five, counsel submitted that the Claimant has failed to prove that the termination of his employment on the ground of ‘Redundancy’ was unlawful and constituted a breach of his right on ‘Redundancy’ under the provisions of the Labour Act. Consequently, he urged the court to hold that the Claimant has failed to prove his entitlement to his claims/reliefs in paragraph 30 (5) and (6) of his Statement of Facts by failing and neglecting to produce credible and cogent evidence that could prove and establish that: (i.) the Defendants did not inform the trade union or workers’ representatives concerned of the reasons for and the extent of the anticipated redundancy; (ii.) the Defendants did not adopt the principle of “last in, first out” in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability, and reliability; and (iii.) the Defendants did not use their best endeavour to negotiate redundancy payments to any discharged workers who are not protected by regulations made pursuant to Section 20 (2) of the LA.
24.0. Arguing issue six, counsel submitted that the Claimant failed to place before the Court evidence of his lawyer’s fee note, bill or payment of same or expenses incurred as a result of the prosecution of the case. That the Claimant’s claim in paragraph 30 (7) of his Statement of Facts is in default of want of legal evidence of the highest probative value and weight in proof thereof and should be discountenanced as unproved; and consequently refused. Also counsel noted that the issue of cost in the form of solicitor’s fee as a specie of damages is unknown to the Nigerian Law; he referred the Court to the cases of Nwanji v. Coastal Services (Nig.) Ltd [2004] 11 NWLR (Pt. 885) 552 @ 568-569, paras. H-D; Suffolk Pet. Services Ltd. v. Adnan Mansoor (Nig.) Ltd. [2019] 2 NWLR (Pt.1655) 1 @ 33, paras. D-G; DHL International Nigeria Ltd v. Obiageli Eze-Uzoamak & Anor. [2020] 16 NWLR (Pt.1751) 445 @ 500, paras. E-G.
25.0. Claimant’s Final Written Arguments
In the Claimant Final Written Address at page 410 of the record, his counsel firstly responded to the preliminary issues raised by the defendants in their Final Written Address.
25.1. Responding to paragraphs 2.4.4 and 2.4.5 of the Defendants’ Final Written Address on the case of the claimant being one grounded in the law of tort of negligence and being instituted outside the five years limitation period of the limitation law, counsel submitted that the case of the claimant is connected with injury arising from course of work sustained by the claimant which is governed by the provisions of the Employee Compensation Act, 2010 and that the claimant’s claims in paragraph 30(1)(2) and (3) of the Statement of Facts is not statute barred by section 12(1) of the Employee Compensation Act, 2010. That the Employee Compensation Act did not state the time limit for claims arising from or connected with injuries sustained in the course of work. To counsel, the Limitation law of Rivers State does not applies to claims arising from or connected to personal injury in the course of work.
25.2. Counsel submitted that the law clearly provides that any agreement between the claimant as an employee and the defendants as employers in the purported Indemnity Agreement (Exhibit D6) to forgo the claims before the court is void and unenforceable, citing section 13(1)(2) of the Employees Compensation Act 2010. He referred the court to the cases of Nwadike v. Administrator-General of Anambra State [1996] 7 NWLR (Pt. 460) pages 315; Ports v. Cargo Handling Service Company Ltd [2009] 11 NWLR (Pt. 1153) page 611 paragraph A.
26.0. Counsel then formulated the following issues for the determination of the Court:
i. Whether the Defendants’ redundancy exercise determining the Claimant’s Contract of Employment violated the laws and Guidelines in the Oil and Gas Industry in Nigeria?
ii. Whether the personal injury sustained by the Claimant in the Defendants rig work has been proved by credible evidence.
iii. Whether the Claimant is entitled damages sought.
26.1. Arguing issue one, counsel submitted that by the communal reading of Sections 1, 6 and 106 of the Nigerian Oil and Gas Industry Content Development Act, 2010 and the Guidelines made pursuant to Regulation 15(a) of Petroleum Regulations 1969 (as amended), clearly shows that the Defendants as operators in the Oil and Gas Industry are duty bound by the procedure provided in the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019. He went on that the termination of the Claimant’s employment by “redundancy” qualifies as staff Release under Section 3.0 of the Guidelines and that the procedure for staff release in the Oil and Gas Industry in Nigeria as provided for in Section 4.0 of the Guidelines was not followed in the termination of the Claimant’s Contract of employment by Redundancy.
26.1.1. Counsel continued that the Defendants‘ termination of the Claimant’s Contract of Employment by Redundancy was not approved by the Minister through the DPR and so, they are liable to pay the penalty of $250,000.00, citing Section 4.4 and Section 6.0 and 6.1 of the Guidelines; Section 122(1) and 2(a) of the Evidence Act, 2011; Sections 36 and 40(1) and 106 of the Nigerian Oil and Gas Industry Content Development Act, 2010; the case of Clementina Ogunniyi v. Hon. Minister of Federal Capital Territory & Anor. [2014] LPELR-23164 (CA).
26.1.2. Counsel further submitted that the common law provisions on master/servant relationship as it relates to the Nigerian Oil and Gas Industry has been overridden by the Guidelines, No.1 2015 (as amended in 2019) made pursuant to the said regulations. That the implication of the Guidelines, No. 1, 2015 (as amended in 2019) made pursuant to Regulation 15(a) in the Oil and Gas Industry in Nigeria is that such contracts of employee/employer contractual relationship now has a statutory flavour. He submitted that employment is said to be with statutory flavour when the terms and conditions, especially appointment and termination is governed by a statute, a subsidiary legislation or a regulation made thereto. Citing Imaloame v. WAEC [1992] 3 N.S.C.C. 374 at 383; Federal Medical Centre, Ido-Ekiti & Ors. v. Shuaib Adewole Alabi [2011] LPELR-10931 (CA); Abba-Aji, J.C.A.; Kraus Thompson Organisation v. National Institute for Policy and Strategic Studies (supra) on page 59, para G – H.
26.1.3. Counsel submitted further that the Claimant is entitled to same as stated in the Guidelines for the breach thereof; or in the alternative, the Claimant is entitled to be re-instated or paid his salaries uptil date. He urged the court to hold that ubi jus ibi remedium having violated the law in the Oil and Gas Industry, the remedy available to the Claimant is as stated by law and that the redundancy exercise terminating the Claimant’s employment is unlawful and violated specific laws in the Oil and Gas Industry.
26.2.0. Arguing issue two, counsel submitted that personal injury means any harm caused to a person or any bodily injury, such as broken arm, chic, a bruise injuries to the head, leg, arms etc, referring to Black’s Law Dictionary 8th Edition, page 802; Ozigbu Engineering Co. Ltd. v. Philip Iwuamadi [2011] All F.W.L.R. (Pt. 553) page 1775 at page 1998. Counsel further submitted that the Claimant proved by credible evidence that he fell in Defendants‘ rig which caused injury to his body. He referred the Court to paragraphs 10(a)(b)(c)(d) (e)(f)(g)(h), 11, 12, 13, 16,17,18,19,19(a) and 20 of the Statement on oath of CW1 and also Exhibits C8,C9,C10,C11,C12,C13,C14,C16,C17,C18,C19,C20 also clearly show the extent of bodily injury suffered by the Claimant due to the Defendants’ Company rig. Counsel mentained that the Claimant proved the specific nature of the injuries and the degree of seriousness by medical reports tendered as Exhibits in this case, citing Mallam Nalado & Anor. v. Alhaji Mohammed Ali & Anor. [2006] All F.W.L.R. (Pt. 293) page 220 at page 250 paragraphs C-E.
26.3.0. Arguing issue three, counsel submitted that principles guiding award of damages in personal injury cases are: a) Financial loss resulting from the injury/loss of earning. b) Pain and suffering & loss of amenities of the life. C) Cost of further injury, the attendant medical expenses and d) Money actually expended, citing Tecno Mech (Nig.) Ltd. v. Ogunbayo [2001] N.W.L.R. (Pt. 639) page 150.
26.3.1. On the claimant’s claim for Loss of Earnings,his counsel argued that in paragraph 8 of the Amended Statement of Facts, the claimant pleaded that his salary as an employee of the defendant was N266,565.57 monthly. He went on that the Claimant also pleaded and proved that due to the injury, he lost the monthly earnings and the opportunity of earning the sum of N3,198,786.00 which he is expected to work for at least another 13 years. He referred the court to the cases of Newbreed Organisation Ltd. v. I. E. Erhomosele [2006] 2 S.C. (Pt. 1) page 136 at page 152, line 10, and Samson Ediagbonya v. Dumex (Nig.) Ltd. [1986] 6 S.C. 104 at page 116.
26.3.2. On Loss of Amenities of Life, counsel refrred the Court to paragragh 24(a)(b)(c)(d)(e)(g)(h) of the Statement of Facts that the injury have prevented him from enjoying life. That in awarding damages for loss of amenities of life evidence of physical disability and age of the Claimant is relevant, citing Julius Berger Nigeria Plc & Anor. v. Mrs. Philomena Ugo [2015] LPELR-24402 (CA).
26.3.3. On Pain and Suffering, counsel referred the court to in paragraphs 24(d)(e)(f)(g)(h)(i) of the Statement of Claim that pain and suffering cover damages past, present and future pain, physical and mental anguish including fear of future treatment or anguish caused by life expectancy being shortened. See Wise v. Kaye [1963] 1 Q.B. 639 and Mallam Nalado & Anor. v. Alhaji Ali & Anor. [2006] All F.W.L.R. (Pt. 293) 220.
26.3.4. On Cost of Further/Attendant Medical Expenses, counsel referred the Court to Ebe v. Nnamani [1997] 7 N.W.L.R. (Pt. 513) page 479; Tecno Mech (Nig.) Ltd. v. Ogunbayo (2000) I N.W.L.R. (Pt. 639) page 150 and paragraphs 24(e), 27(a) of the Statement of Claims, the urgency of further medical treatment. Counsel went on that the Defendants did not contradict the Claimant’s paragraph 24(a) – (i) of the Statement of Claims in any material particular in the Amended Statement of Defence.
26.3.5. On Money Actually Expended, counsel submitted that out of pocket expenses incurred down to the trial date are claimable as damages. He referred the Court to the case of Okhai v. C.C Const. Co. Ltd. [1998] 3 N.W.L.R. (Pt. 543) page 584. BUBA v. STATE (1992) I N.W.L.R. (Pt. 215) page 1, counsel went on that the medical letters and exhibits in this case clearly show that the Claimant attended and continues to attend hospitals for further treatment.
27.0. The Defendants’ Reply on Point of law
On whether matters respecting tort of negligence or injury at work or death and matters connected to them are exempted from the operation of Limitation of action; counsel submitted that contrary to the Claimant’s Counsel’s contention and submission, the limitation law applies to tort of negligence or injury at work citing sections 16 and 17 of the Limitation Law of Rivers State. That it is settled law that cases cannot be an authority for what they did not decide and that a decided case furnishes a basis for the determination of a later case only if the facts or issues in the subsequent case are similar to those in the earlier case, citing Ado v. State [2017] 15 NWLR (Pt.1587) 65 @ 82, D-F.
27.1. On the Claimant’s contention and submission that Section 13 (1) and (2) of the Employees’ Compensation Act, 2010 rendered the ‘’Release of Claim’’ Indemnity Agreement dated June 3, 2015 executed between the Claimant and the Defendants illegal, void, and unenforceable, counsel submitted that the Claimant and the Defendants in the ‘Release Claim’ did not in any way or manner enter into an agreement to waive or forgo any benefits that the Claimant or his dependents may be entitled to under the provisions of the ECA but to waive and forgo any benefits or rights that the Claimant may be entitled to under his personal contract of employment with the Defendants citing Duru v. FRN (2013) 6 NWLR (Pt.1351) P. 441 @ 485, paras. C-D and 466, paras. D-E.
27.2. Whether the Defendant’s redundancy exercise which determined the Claimant’s contract of employment violated the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, No. 1 of 2015 (as amended in 2019); counsel submitted that the Guidelines is not applicable to the contract of employment that existed between the Claimant and the Defendants because it does not constitute part of the terms of the contract of employment that existed between the parties. That it is settled in law that where parties to a contract of employment did not incorporate or include the provisions of any circular or guidelines as part of the terms of their contract of employment, the court should discountenance the provisions of such circular or guidelines and should not rely on it to determine the rights and obligations of the parties under their contract of employment. He cited in support Chukwuma v. Shell Petroleum Development Company Nigeria [1993] 4 NWLR (Pt.289) 512; also Suit No: NICN/LA/506/2015 Michael Atoe v. Petrofac Energy Services Nigeria Limited delivered on June 6, 2015 followed the apex court’s decision. In Chukwuma v. Shell Petroleum Development Company Nigeria (Supra) that the provisions of the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, No. 1 of 2015 (the “2015 Guidelines”) cannot be read into the contract of employment that existed between the parties in the suit because the same was not incorporated into the terms of the contract of employment that existed between the parties.
27.3. Counsel further submitted that the Guidelines is not applicable to the contract of employment that existed between the Claimant and the Defendants because the Guidelines is null and void having been issued contrary and inconsistent with the provisions of the principal law on the basis of which it was purportedly issued, citing Nigerian National Petroleum Corporation v. Famfa Oil Nigeria Limited [2012] LPELR-7812 (SC), and Suit No: NICN/LA/411/2020 - PENGASSAN & Ors. V. Chevron delivered on February 26, 2021.
27.4. On whether the Honourable Court can grant a relief or reliefs not claimed by the Claimant in this suit. as argued in paragraphs 5.01-5.10 and paragraphs 5.25 - 5.27 of his final written address. Counsel submitted that a court will not grant a relief that was not claimed by the Claimant in his suit, citing A.C.B. Ltd. V. Ajugwo [2012] 6 NWLR (Pt.1295) 97 @ 122-123, paras. H-D.; Onah v. Okom [2012] 8 NWLR (Pt.1301) 169 @ 192, para. E and Enemchukwu v. Okoye [2017] 6 NWLR (Pt. 1560) 37 @ 59, PARA. H.
27.5. Counsel went on that the Claimant claimed for damages for loss of earning, that the Court cannot award the same to him because the Claimant failed to strictly prove that he is entitled to the damages for loss of earning being, citing Blackwood Hodge Nig. Ltd. v. Omuna Const. Co. [2012] 12 NWLR (Pt.782) 523 @ 540-541, paras. G-A.
27.6. In respect of the Claimant’s claim for damages for loss of earning, pain and suffering, loss of amenities of life, cost of further/attendant medical expenses in the absence of proof by the Claimant of a causal relationship between the Defendants’ negligent act and the Claimant injury on the basis of which he claimed the damages; counsel submitted that the claimant has not establish the tort of negligence against the Defendants, hence the claimant is not entitled to same, citing Iyere v. B.F.F.M. Ltd. [2008] 18 NWLR (Pt. 1119) 300 @ 338-339, paras. G-C; B.C. Transport Co. Ltd. v. Omotoye [2019] 14 NWLR (Pt. 1692) 197 @ 217-218, paras. F-A.; Dhl Int’l. Nig. Ltd. v. Eze-Uzoamaka [2020] 16 NWLR (Pt.1751) 445 @ 491, paras. B-E; and Orhue v. N.E.P.A. [1998] 7 NWLR (Pt. 557) 187 @ 194, paras. D-E; 197, paras. F-H.
27.7. On whether the Defendants denied or rebutted the Claimant’s averments in paragraph 24 (a-i) of the Claimant’s Statement of Facts in their Amended Joint Statement of Defence, counsel submitted that by Order 30 Rules 2 (1) and 6 (1) and (2) of the Rules, the Defendants roundly denied the Claimant’s averments in paragraph 24 (a), (b), (c), (d), (e), (f), (g), (h), and (i) of his Statement of Facts. That by the Defendants’ denial of the Claimant’s averments in paragraph 24 (a-i) of the Claimant’s Statement of Facts in paragraph 23 (a) and (b) of their Amended Joint Statement of Defence, the evidential burden of proving those averments rest solely on the Claimant in line with the provisions of sections 131, 132, 133, 134, and 136 of the Evidence Act, 2011 (the “EA”).
28.0. COURT’S DECISION
I have carefully read through the facts of this case, from the pleadings and testimonies of the parties, the written arguments of counsel to the parties including their cited authorities both statute and case laws and from all of these, I am of the considered view that the following issues need to be resolved between the parties:
i. Are Exhibits C.8, C.9, C.11, C.12, C.13, C.14, C.16, C.17, C.18 C.19 & C.20 properly admitted in evidence? Is the Claimant’s suit statute barred? With the “Release of Claim” Indemnity Agreement of June 3, 2015 executed by the parties, is the claimant allowed to seek for and obtain the reliefs/claims in this case?
ii. Was the provisions of the laws and Guidelines in the Oil and Gas Industry in Nigeria and those of Labour Act, CAP L1, Laws of the Federation Republic of Nigeria, 2004 violated by the determination of the Claimant’s Contract of Employment by redundancy, thereby making the determination unlawful and wrongful?
iii. Has the claimant proved that he sustained personal injury while working for the Defendants due to the defendants’ negligence? Is he entitled to special damages of N500,000,000.00 for the injury & N5,000,000.00 for drugs; N90,000,000.00 general damages; N239,909.02 as employee’s compensation under the Employees’ Compensation Act, 2010 and N5,000,000.00 as cost of this Suit?
29.0. INTRODUCTION
By way of opening point, the soft copy of the final written address of the claimant sent to the Court is substantially different from the hard copy filed in the casefile. For instance, in pages 1 to 10 of the hard copy, the paragraphs of the address are from 1.01 to 1.51; see pages 410 to 419 of the record. But in the soft copy of the same address that counsel sent to the Court’s email address in line with the Rules of the National Industrial Court of Nigeria (Civil Procedure) Rule, 2017 and the Court’s practice; the paragraphs in it are from 1.01 to 1.16. In my humble view, this is not a mistake but a deliberate action. This is very unfortunate and it impugns on the quality of practice of counsel. I advise the claimant’s counsel to stop this sort of practice in order not to find himself in deep waters before the Court one day.
RESOLUTION OF FRAMED ISSUES
30.0. ISSUE ONE: Are Exhibits C.8, C.9, C.11, C.12, C.13, C.14, C.16, C.17, C.18, C.19 & C.20 properly admitted in evidence? Is the Claimant’s suit statute barred? With the “Release of Claim” Indemnity Agreement of June 3, 2015 executed by the parties, is the claimant allowed to seek for and obtain the reliefs/claims in this case?
30.1.0. Are Exhibits C.8, C.9, C.11, C.12, C.13, C.14, C.16, C.17, C.18, C.19 & C.20 properly admitted in evidence?
Exhibits C.8, C.9, C.11, C.12, C.13, C.14, C.16, C.17, C.18, C.19 & C.20 are medical reports, which the claimant got at various times for his treatments. They spread over a period of times from October 2011 to May 2015. See pages 36 to 62 of the record. The defendants objected to the admissibility of these documents because they are medical reports that were not tendered in evidence as exhibits through their makers. In addition, the defendants objected to the admissibility of Exhibit C.20 because it was allegedly forged, relying on the evidence of D.W1 in paragraphs 22 & 23 (a - d) together with the content of Exhibits D.4 & D. 8 before the Court. On the other hand, the claimant contended that these medical reports can and were rightly put in evidence as Exhibits through the claimant instead of through their makers.
30.1.1. The Eleven Exhibits in question were put in evidence as exhibits through the claimant on March 12, 2020; see the Court’s proceedings’ file on this case at pages 6 to 7 thereof. By the provisions of section 55 of the Evidence Act, 2011 (As Amended), either of the parties in a criminal trial may produce a certificate signed by a Government Pathologist or any of the specified Medical Officers or experts therein listed, and the production of any of such certificate may be taken as sufficient evidence of the facts therein stated, provided that the Court may upon application of any of the parties or of its own motion, direct that the pathologist or such officer may be called for the purpose of cross examination. See also, the provision of section 249 (3) (a) of the Criminal Procedure Code on same issue.
30.1.2. The general interpretation of these provisions (section 55 of the Evidence Act, 2011 (As Amended) & section 249 (3) (a) of the Criminal Procedure Code) is that personal attendance in Court, of a Medical Practitioner or Officer who issued a Medical report is not mandatory but discretionary. Furthermore, a medical report is admissible even if it is not tendered through the maker. In such situation, his personal attendance may be required only where there is a disagreement with the contents of the report and it appears expedient to the Court that the interest or ends of justice would be better served by summoning the Medical Practitioner/Officer to appear in person to give evidence. See Fulani M v. State [2018] LPELR-45195(SC). Per Galinje, J.S.C. In the case of Isah v. State [2020] LPELR-51120(CA) it was held on similar issue that --- “it is now judicially settled with statutory backing that the attendance of a medical officer who issued a Medical report is not a requirement for its admissibility. In other words, such a report may be tendered in evidence other than by the maker” ---. Per Amina Audi Wambai, JCA (As she then was) (Pp 34 - 39 Paras E - C). Additionally, see Paul v. State [2019] LPELR-47386(SC) and Adamu v. State [2020] LPELR-51121(CA) on the same principle.
30.1.3. Consequently, I find and hold that these medical reports, Exhibits C.8, C.9, C.11, C.12, C.13, C.14, C.16, C.17, C.18, C.19 & C.20; being objected to by the defendants’ counsel were rightly admitted in evidence as exhibits in this case based on the provisions of statute laws and decisions in the case laws being referred to above. Furthermore, the defendants’ additional ground of objection to Exhibit C.20 that it was forged, is a criminal allegation that requires to be proved beyond reasonable doubt by the provision of section 135 (1) of the Evidence Act even in civil matters. Unfortunately, the defendants failed to satisfy this standard of prove of this criminal allegation in the instant case. In the circumstances, the entire objection of the defendants to the admissibility of these already admitted Exhibits is hereby overruled and dismissed.
30.2.0. Is the Claimant’s suit statute barred?
The contention of the defendants’ counsel is that the cause of action of the claimant’s case started in year 2009 and the claimant filed this action in year 2018, which is nine years after the accrual of the cause of action. He argued that by the provision of section 16 of the Limitation Law of Rivers State, 1999 he is entitled to file this action within 5 years of the accrual of the Cause of action; see paragraphs 2.4.2 to 2.4.10 of the defendants’ final written address at pages 364 to 369 of the record. The defendants maintained that the Claimant’s action against them is grounded in the law of tort of negligence when he allegedly had an accident on the defendants’ rig while on duty. Therefore, since this suit was filed 9 years after the accrual of the cause of action, it is barred by the provision the Limitation Law of Rivers State.
30.2.1. Conversely, it is the submission of counsel to the claimant in paragraphs 1.17 to 1.34 of the claimant’s final written address that injury arising from course of work as it is in the instant case is governed by the provisions of Employees’ Compensation Act, 2010; which cannot be barred by section 16 of the Limitation Laws of Rivers States Cap 80; citing section 12(1) of the Employees’ Compensation Act, 2010; see pages 413 to 416 of the record.
30.2.3. Section 12.—(1) of the Employees’ Compensation Act, 2010 is on Limitation of actions, subrogation, etc. and it provides:
The provisions of this Act are in lieu of any right of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which an employee, dependent or member of the family of the employee is or may be entitled against the employer of the employee, or against any employer within the scope of this Act, or against any employee, in respect of any death, injury or disability arising out of and in the course of employment and where no action in respect of it lies.
And by section 12 (2) of the ECA, The provisions of sub-section (1) of this section shall apply only when the action or conduct of the employer, the servant or agent of the employer or the employee, which caused the breach of duty, arose out of and in the course of employment within the scope of this Act.
30.2.4. In essence, this provision is to the effect that the Employees’ Compensation Act does not allow actions founded on a breach of duty of care or any other related cause of action to be limited by any other Statute including the Limitation law of Rivers State.
30.2.5. The question now is, was the claimant’s action founded on a breach of duty of care against the defendants? The defendants contended that they were not aware of the claimant’s injury in question until years later and that the claimant was not even sent to the rig to work for them at the material time. On his part, the claimant could not proffer any satisfactory evidence in this case to show that he was sent to work on the rig by the defendants at the material time, and so, the defendants owed him duty of care, which they breached when he allegedly had the accident in question at the rig. And so, I find and hold that the claimant failed to prove that the defendants had duty of care towards him at the time when the alleged accident happened. In addition, I hold that in the circumstance of this case, the defence in the provision of section 12 (1) & (2) of the ECA against limitation clause is not available to the claimant because he failed to establish that the defendants were negligent in tort against him.
30.2.6. Furthermore, section 4 (1) of the Employees’ Compensation Act, 2010 states the procedure for making claims under the Act for compensation by placing on the employee, the duty to report or inform the employer, every case of injury in a workplace within 14 days from when the injury occurred. The said report shall be to the manager, supervisor, first-aid attendant or agent in charge of the work where the injury occurred or other appropriate representative of the employer (which is in the instant case, the Defendants).
30.2.7. By the provision of section 4 (4) of the Employees’ Compensation Act, failure to provide the information required under sub-section (1) of this section is a bar to claim for compensation under this Act, unless the Board is satisfied that the:
(a). Information, although imperfect in some respects, is sufficient to describe the disease or injury suffered;
(b). Employer or the employer’s representative had knowledge of it; or
(c). Employer has not been prejudiced, and the Board considers that the interest of justice requires that the claim be allowed.
30.2.8. The evidence before the Court on this report is that, the defendants were not aware of the claimant’s injury until about three years after, instead of informing them promptly within 14 days after the injury. I hold on this score that the claimant did not comply with the provisions of section 4 of the ECA.
30.2.9. Besides, by the provision of section 55(4) of the Employees’ Compensation Act, 2010; “an appeal shall lie from any decision of the Board under sub-section (1) of this section to the National Industrial Court”. What this means is that this Court does not have original jurisdiction on claims for compensation but appellate jurisdiction. The Body that has original jurisdiction on payment of Employees’ Compensation in the Act is “the Nigeria Social Insurance Trust Fund Management Board”. In the circumstance, I hold that this Court does not have original jurisdiction to award Compensation for injury suffered by an employee in his workplace including the compensation that the claimant seeks.
30.2.10. On the application of the Limitation Law of Rivers State, It is trite that in determining whether a suit is statute barred, the court will look at the writ of summons, statement of claims, complaint and statement of facts; and in cases commenced by originating summons, the affidavit in support of the originating summons alleging when the wrong which gives the plaintiff/claimant a cause of action and compare same with the date on which the action/suit was filed. If the time the action was filed is longer than what is allowed by law, the action is said to be statute barred, see Gbenga v. APC [2020] All FWLR (Pt. 1053) CA 115 at 161 para B-C
30.2.10. Section 16 of the Limitation Laws of Rivers States Cap 80, provides thus:
No action founded on contract, tort or any other action not specifically provided for in Parts I and II of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.
30.2.11. From the averment in paragraphs 9 and 10 of the Statement of Facts, the course of action in respect of the injury under the alleged realm of defendants’ negligence to the claimant began in 2009 when the Claimant contended that he had the accident. But the claimant instituted this suit against the Defendants on December 3, 2018 after a period of nine (9) years. Consequently, I hold that the case of the claimant is limited by section 16 of the Limitation Laws of Rivers States because it was instituted 9 years after the accrual of the cause of action instead instituting same within 5 years allowed by the Rivers State law. I further hold that the claimant’s case was barred by the Rivers State Limitation law.
30.3.0. With the “Release of Claim” Indemnity Agreement of June 3, 2015 executed by the parties, is the claimant allowed to seek and obtain the reliefs/claims in this case?
It is the submission of counsel to the Defendants in paragraphs 2.5 to 2.5.12 of their final written Address at pages 369 to 375 of the record that the Claimant having made representations to the Defendants in Exhibit D.6 confirming that he has voluntarily waived his rights and entitlements mentioned in this case and the 2nd Defendant having altered it position to act on the Claimant’s unequivocal representations, the Claimant is estopped from blowing hot and cold on the same rights and entitlements that he had voluntarily relinquished in consideration of the sums of money paid to him by the 2nd Defendant in Exhibit D.6 transaction.
30.3.1. Counsel to the claimant on the other hand contended in paragraphs 1.35 to 1.51 of their Final Written Address at pages 416 to 419 of the record that any agreement in Exhibit D.6 between the claimant as an employee and the defendants as his employers purported to be Indemnity Agreement to forgo his claims for compensation before the court is void and unenforceable, citing section 13 (1) & (2) of the Employees’ Compensation Act, 2010.
30.3.2. Exhibit D.6 before the Court is titled “Release of Claims” otherwise known as Indemnity Agreement. It is dated June 3, 2015 and it is at page 202 of the record.
30.3.3. Section 13 (1) and (2) of the Employees’ Compensation Act, 2010 provides:
(1). No employee shall agree with his employer to waive or to forego any benefit or right to compensation to which the employee or the dependents are or may become entitled under this Act.
(2). Any agreement in whatever form between the employer and the employee in contravention of sub-section (1) of this section shall be void and unenforceable.
30.3.4. In essence, section 13 (1) & (2) of the ECA is basically against waiver of compensation, which an employee is entitled to under the Act. The rule on Interpretation where the provision of the law is clear and unambiguous is that, the duty of the court is to ascribe their ordinary grammatical meaning to such law, see the cases of Julius Berger Nigeria Plc & Anor v. Toki Rainbow Community Bank Ltd [2009] LPELR- CA/PH/365/2006; International Standard Securities v. Union Bank of Nigeria Plc (Registrar's Department) [2009] LPELR-CA/A/127/05 and Union Bank of Nigeria Limited & Anor v. Nwaokolo [1995] 6 NWLR (Pt.400): [1995] LPELR- SC.217/1991.
30.3.5. With this clear and unambiguous provision of section 13 (1) & (2) of the ECA, I find and hold that the effect of compensation accruable to the claimant under the Employees’ Compensation Act, 2010 cannot be waived. Therefore, I further hold that the “Release of Claim” Indemnity Agreement of June 3, 2015 in Exhibit D.6 at page 202 of the record is not of any legal assistance to the defendants in this case. In addition, I hold that the claimant is allowed to seek for and obtain the reliefs/claims for compensation in this case if he satisfactorily proves them.
31.0. ISSUE TWO IS: Was the provisions of the laws and Guidelines in the Oil and Gas Industry in Nigeria and those of Labour Act, CAP L1, Law of the Federation Republic of Nigeria, 2004 violated by the determination of the Claimant’s Contract of Employment by redundancy, thereby making the determination unlawful and wrongful?
31.1.0. Was the provisions of the Law and Guidelines in the Oil and Gas Industry in Nigeria violated by the determination of the Claimant’s Contract of Employment by Redundancy?
In paragraphs 3.01- 3.74 of his final written address at pages 419 to 433 of the record, the claimant’s counsel contended and submitted that the failure of the Defendants to comply with provisions of the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry Act, No. 1 of 2015 (as amended in 2019) (the “Guidelines”) in its redundancy exercise by which the claimant’s contract was terminated rendered the Defendants’ termination of his employment illegal, null, and void. The law is that he who asserts must prove and, the case of a plaintiff/claimant stands or falls upon his own evidence and not upon the weakness of the defence; see Kafaru v. Reliance Telecommunications Ltd [2015] 60 NLLR (Pt 211) 627 at 641, para E-G and West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt .187) 165 at 189-At 199 paras C-E.
31.1.1. It is worthy of note that the issue of compliance with the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry Act, No. 1 of 2015 (as amended in 2019) is not pleaded by the claimant. The Law pleaded by the claimant is the Labour Act, see paragraphs 22 and 30 (5) & (6) of the Statement of Facts at pages 10, 12 and 13 of the record.
31.1.2. Regardless of lack of pleading, counsel to the claimant dissipated much energy on Release of Staff in the Nigerian Oil and Gas Industry Act, No. 1 of 2015 (as amended in 2019) even though he failed to link his arguments on the Act with the terms and conditions of employment of the claimant before the Court. There is nothing showing the Court that the provisions of the Nigerian Oil and Gas Industry Act, in question is incorporated in the terms and conditions of the contract of employment of the claimant in his letter of employment dated October 25, 2002 Exhibit C4 at page 30 or his letter of confirmation of employment dated July 1, 2003 Exhibit C5 at page 31 of the record.
31.1.3. As it is, there is no pleading or evidence that the issue of compliance with the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry Act was incorporated in the contract of employment between the parties. The law is that address of counsel, however brilliant, cannot take the place of evidence particularly where there is no evidence in support of the submission, see UBN Plc. & anor v. Ayodare & Sons (Nig.) [2007] All FWLR (Pt. 383)1 at 42, paragraphs F-G and Umejuru v. Odota [2009] All FWLR (Pt. 494) 1605 at 1623
31.1.4. Consequently, I find and hold that the Nigerian Oil and Gas Industry Act, No. 1 of 2015 (as amended in 2019) and its Guidelines are not applicable to the contract of employment that existed between the Claimant and the Defendants in the instant case. I further hold that all the arguments of the claimant’s counsel in paragraphs 3.01 - 3.74 of his final written address at pages 419 to 433 of the record are of no moment because address of counsel cannot take the place of pleadings and evidence in this case.
31.2.0. Was the provisions of the Labour Act, CAP L1, Law of the Federation of Nigeria, 2004 violated by the determination of the Claimant’s Employment by redundancy?
In resolving this issue, the duty of the court is to assess the evidence before it to see whether or not the claimant has discharged the burden of proof on it, see Augustine v. UACN [2015] 59 NLLR (Pt. 205) 486 at 501. The letter of Redundancy issued by the defendants to the claimant is before the court as Exhibits C. 21 and D.5 at pages 63 & 195 of the record.
31.2.1. In paragraphs 26, 27, and 29 of his Statement of Facts and paragraphs 21; 22; 23; 24; 28 (a); and 30 (a) and (b) of his Written Statement on Oath, it is the case of the claimant that the Defendants laid him off on the ground of ‘Redundancy’ in their letter of April 16, 2015 and short-changed him in the payment of his agreed redundancy benefits. He went on that the mode of determination of his employment by declaring him “Redundant” is unknown to the procedure stipulated in the Defendants’ Employment Manual” and so, the determination of his employment was unlawful.
31.2.2. The Defendants in paragraph 22 (a) – (f) of their Amended Joint Statement of Defence denied the Claimant’s averments in paragraphs 21; 22; 23; 24; 28 (a); and 30 (a) and (b) of the Claimant’s Written Statement on Oath and his corresponding claims in paragraph 30 (5) and (6) thereof. The Law is that he who asserts must prove and that the case of a plaintiff/claimant stands or falls upon his own evidence and not upon the weakness of the defence; citing Kafaru v. Reliance Telecommunications Ltd [2015] 60 NLLR (Pt. 211) 627 at 641, para E-G and West African Examination Counsel v. Oshionebo [2015] 55 NLLA (Pt. 187) 165 at 189-At 199 paras C-E.
31.2.3. It should be noted that the Defendants’ Employment Manual referred to by the claimant was not tendered in evidence in this case and the claimant also fails to establish which part of the terms and conditions of his employment and the provision of the Labour Act was breached by the defendants in determining his appointment and I so find. In the circumstance, I hold that the claimant has not proved to the satisfaction of the Court that the determination of his appointment by Redundancy is wrongful. I further hold that the claimant has not proved on the preponderance of probability that the defendants contravened the provision of the Labour Act in determining his employment by Redundancy.
32.0. ISSUE THREE IS: Has the claimant proved that he sustained personal injury while working for the Defendants due to the defendants’ negligence? Is he entitled to special damages of N500,000,000.00 for injury & N5,000,000.00 for drugs; N90,000,000.00 general damages; N239,909.02 as employee’s compensation under the Employees’ Compensation Act, 2010 and N5,000,000.00 as cost of this Suit?
32.1.0. Has the claimant proved that he sustained personal injury while working for the Defendants due to the defendants’ negligence?
In paragraphs 9 and 10 of the Statement of Facts, the claimant averred that in the course of his work, he sustains injury because the control gel spilled on the floor as a result of which he fell. In paragraph 10(h) and (j) of the Statement of Defence, the defendants denied that the claimant did suffer any safety incident on their rig. They went further to aver in paragraph 11(a) and (d) of their Statement of Defence that the falling of the claimant did not occur at their rig as they did not send him to the rig at the material time.
32.1.1. However, under cross examination, it is the evidence of the claimant as CW 1 that before his injury, he had worked with the Defendants for 12 years and 5 months. So, he knew the Defendants’ processes and protocols and that if there was an accident in the Defendants’ company, a record is created for it as “Incident Report”. Other employees who witnessed the accident will also give their account of the incident. The claimant went on that there was no injury but he just slipped and fell, there was no “Incident Report” when he slipped and fell. He continued that the Defendants knew of his health challenges when he slipped and fell in 2011.
32.1.2. The claimant continued under cross examination that the 3 people he mentioned in his statement; Obiechinma Madubuike, Emeka Samson and Maxwell who witnessed his fall; he was not sure whether they were employees of the Defendants. After the incidence in 2009, he 1st visited the Rivers Hospital, Port Harcourt. He confirmed that the Defendant and its retained hospital knew about his health challenge from the incidence in 2011. He was on medication after the Defendants stopped taking care of him in 2015.
32.1.3. The defendants denied the occurrence of the accident and the claimant has not established through any evidence that the accident occurred or that he sustained the said injury while on the rig of the defendants. section 133 (1) of the Evidence Act provides that “in civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regards being had to any presumption that may arise on the pleadings”. In the circumstance, I find and hold that the claimant has not discharged the burden that he sustained any injury in the course of his employment with the Defendants and that the defendants failed in their duty of care to him as a result of which he sustained the said injury.
32.2.0. Is the claimant entitled to special damages of N500,000,000.00 for injury & N5,000,000.00 for drugs; N90,000,000.00 for general damages; N239,909.02 as employee’s compensation under the Employees’ Compensation Act, 2010 and N5,000,000.00 as cost of this Suit?
I have found and held in this judgment that the claimant failed to establish a case of tort of negligence against the defendants as he failed to prove that the defendants owed him a duty of care at the material time he allegedly had injury. I have also held that the claimant failed to prove that the defendants breached any duty of care towards him and that he suffered damages arising from the said breach; see the case of Kabo Air Limited v. Mohammed [2015] 62 NLLR (Pt 220) 657 at 710. In Tort of Negligence, the proximate and not the remote cause, is what should be considered, see Ighreriniovo v. S.C.C. Nigeria Ltd & Ors [2013] LPELR-20336(SC).
32.2.1. I have also held in this judgment that the claimant did not comply with the procedure for making claims under the Employees’ Compensation Act, 2010. In other words, the principal claims of the claimant for negligence in tort has failed woefully because this Court does not have original jurisdiction on same. In the case of Jimoh v. Jimoh & Ors. [2018] LPELR- 43793 CA, part of the issues resolved is whether the court can determine ancillary claim where it has no jurisdiction to entertain the main/principal claims and it held inter alia that it is the law that the court will not have jurisdiction over the ancillary claims where the principal relief fails. See also the case of L.S.D.P.C v. Adeyemo-Bero [2005] 8 NWLR (Pt. 927) 330 on same issue.
32.2.2. The Law is trite that Damages awarded by a trial court is based on evidence before the court. Where there is no evidence to support the claim for damages, the claim would be dismissed. See CBN V. Okojie (2015) 14 NWLR (Pt 1479) page 231 at 264 para F-G. In the instant case, the claimant pathetically failed to establish his principal claims to the satisfaction of the Court; and so, his ancillary claims for damages, either special or general including claim for compensation and for cost of the suit must fail as well.
32.2.3. Consequently, I hold that the claimant has not proved his case to justify the granting of his monetary claims for special damages of N500,000,000.00 for injury & N5,000,000.00 for drugs; N90,000,000.00 for general damages; N239,909.02 as compensation under the Employees’ Compensation Act, 2010 and N5,000,000.00 as cost of this Suit. All these monetary claims failed and they are accordingly dismissed.
33.0. On the whole the claimant’s case failed and it is accordingly dismissed.
34.0. Judgment is entered accordingly, I make no order as to cost.
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HON. JUSTICE F. I. KOLA-OLALERE, (FCIArb) (UK)
Presiding Judge