THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HON. JUSTICE E. D. SUBILIM

 

DATED: 3RD  JUNE, 2025                                 SUIT NO: NICN/ABJ/397/2023

 

BETWEEN 

                                   

IBRAHIM ISAH                                                                             CLAIMANT

 

AND

 

XINFENG PLASTICS LIMITED                                   -           DEFENDANT                                                                                                        

REPRESENTATIONS:

Uche Uwazuruonye, Esq., with Terver Kenneth, Esq., appear for the Claimant

C. I. Okoha, Esq., with I. S. Ogbodu, Esq., and F. C. Ugwu Esq., appear for the Defendant

 

JUDGMENT

The claimant initiated this suit by way of a Complaint dated and filed on 19th December 2023 wherein he sought the following reliefs:

1.     A declaration that the defendant is liable for the permanent injury and permanent disability of the claimant as a result of the negligent conduct of the Defendant which gave rise to the negligence of the Defendant for failing to provide adequate training and protection tools for work.

2.     The sum of ?19, 800, 000.00 as damages for loss of expectation of life and future loss of earnings.

3.     The sum of ?100, 000,000.00 general damages as compensation for pain and suffering, and injury to his health.

4.     ALTERNATIVELY, the sum of ?150,000,000.00 as general damages for the negligent conduct of the defendant which gave rise to the permanent injury suffered by the claimant.  

BRIEF STATEMENT OF FACT:

The Claimant was an erstwhile employee of the Defendant, while the Defendant is a plastic producing Company duly incorporated in Nigeria. It is the Claimant's case that, sometime in December, 2022, and in the ordinary course of doing his duty as a loader and off-loader of materials and products in and out of trucks in the Defendant's Company, he was instructed by his supervisor Mr. Muhammed Abdullahi to replace the worker in charge of the finisher machine and take over the operation of the said machine despite Mr. Muhammed Abdullahi knowing fully well that the Claimant lacked the requisite expertise on the operation of the machine. The Claimant further averred that, he was coerced into operating the machine by the said Mr. Muhammed Abdullahi on the ground that it was still within his working hours and that, despite having no prior knowledge in the operation of the said machine, the Defendant failed to train him in the operation of the machine, or provide him with any safety equipment thereby breaching the duty of care owed to him in his capacity as an operator of the said machine on the said date in the employment of the defendant. In the course of operating the machine of the defendant the claimant sustained injury that led to the amputation of his hand. Defendant took care of his medication but refused to compensate him and that is why he commenced this action against the defendant.

DEFENDANT’S CASE

It is the case of the defendant that there was never a time where the claimant was employed or instructed or forced to operate the machine as the claimant’s job description was to load and offload materials and products in an out of trucks, as well as to load and arrange the recycling products onto the machine which is thereafter operated by qualifies and authorized personnel. The defendant stated that the claimant caused the injury on himself when he left his station, and his responsibilities to climb onto the station of the machine operators and proceeded to negligently operate the machine which led to the injury on the claimant. Defendant averred that immediately after the accident the HR applied first aid and rushed the claimant to the hospital where he was hospitalized – and the defendant bore all the hospital expenses including that of his brother that was with him. Defendant denied instructing any person to amputate the claimant as no one ever ask it of such permission more so that the brother to claimant was there with him. The Defendant also averred that after the discharge of the Claimant from the hospital; it offered the Claimant compensation for the injury despite the negligence of the Claimant. However, the Claimant's and his representatives rejected the offer and insisted that Defendant accept direct responsibility and liability for the injury and amputation of his hand before negotiation would continue. Defendant averred that after much consultation defendant later demanded for a ridiculous sum which did not go down well with defendant and claimant ultimately walked out of the negotiations.

COMMENCEMENT OF TRIAL

To prove his case the claimant opened his case on the 20/10/2024 with his evidence by adopting his Witness Statement on Oath and tendered Exhibit ISAH 1. In response the defendant filed its Memorandum of Appearance and statement of defence on the 5/06/2024 and called two witnesses and close its case. The claimant also filed a reply dated and filed on the 14/06/2024 in response to defendant’s statement of defence.

DEFENDANT’S FINAL WRITTEN SUBMISSION

The defendant submitted that from the facts and evidence adduced in this case that the following issues arise for determination, and they are:

1.     Whether the Claimant has proved his case, so-as-to be entitled to the grant of the reliefs sought in this case;

2.     Whether the Claimant can invoke the Doctrine of Res Ipsa Loquitur;

3.     Whether the Claimant has a Reply to the Defendant's Statement of Defence;

4.     Whether the instant Suit is not an abuse of Court Process.

 

ISSUE 1:

Has the Claimant proved his case, so-as-to be entitled to the grant of the reliefs sought in this case?

Counsel to the defendant answered this issue in the negative. According to defendant, the crux of the Claimant's claim - which he MUST prove are:

i.                   The occurrence of the accident ('The Accident'); and

ii.                 The amputation of the Claimant's arm ('The Amputation').

 

The Accident

Counsel argued that the law is settled that the burden of proof falls on the Claimant who alleges negligence. This is because, Negligence is a question of fact and not of law and it is the duty of the person who asserts, to prove it and the failure to prove the particulars of Negligence pleaded is fatal to the Claimant/Plaintiff's case. This is the position of the law adopted in the case of Dortmund Company (Nig.) Ltd & anor v. Elias (2013) LPELR-21117(CA) (Pp. 29-30 paras. C).

Defendant’s counsel argued that, the Claimant alleged that he was coerced by the Defendant through Mr. Mohammed, to operate the said machine, and that the operation of the said machine was outside the purview of his work description. The Claimant also stated that the Defendant did not provide him with any training in the operation of the washing machine, neither was he provided with protective work gears against the foreseeable risks of operating the machine, and the Claimant also emphasized that the Defendant has no provisions for First-Aid in its Company. These claims were expressly and specifically denied by the Defendant witnesses respectively. Counsel argued that the statement by DW1 contradicts the Claimant's claims that the Defendant does not have protective works gears in the Company and that he was coerced into operating the machine - he was simply instructed to load materials which confirms DW2's statement that the Claimant was employed as a loader and off-loader of materials and products in the Defendant's Company.

Furthermore, Defendant’s counsel submitted that the Claimant was also led to admit that Mr. Asheyi and Mr. Muhammed - being qualified machine operators were present on the said date this statement discredits paragraph 3 of the Claimant's Statement on Oath. This shows that, even if the Defendant had the habit of shuffling staff to fit any vacancy at any given time in its Company (an obvious falsehood), such vacancy was inexistent on the said date. The Claimant could not have been forced to operate a machine he was not qualified nor trained to, while there were two well-trained machine operators on duty.

Thus, from the foregoing, defendant’s counsel asked whether it can be rightly said that the Defendant owed the clamant (employed as a loader and off-loader of product of the Defendant company), the same duty of care owed at the operators of machines-duty of providing protective gears and/or, safety equipment? Counsel urged me to agree with them in the negative, in light to the revelation made by DW 1 during cross-examination. Counsel to defendant referred me to the case of Machine Unudje and Anor v. Shell-BP Petroleum Development Company of Nigeria Ltd. (1975) 9-11 S.C 155 at166-167.

Counsel to defendant submitted that the Claimant in paragraph 14 of his Written Statement on Oath stated thus: "that I woke up to see that my right hand has been cut off with the consent of the Defendant and without my knowledge and consent or that of my family." The Defendant's 2nd witness in paragraph 9 of her Statement on Oath rebuffed the allegations and notified the Claimant to provide the consent form issued by the said hospital-which the Claimant failed to do.

Counsel to defendant submitted that, it is very important to state herein that, the Claimant has not furnished this Court with any type of evidence- whether pictorial or otherwise showing that an amputation was actually done on his arm, on the instruction of the Defendant.

Counsel argued, in Nigeria, only a patient or their legally authorized representative can sign a medical consent from. More-so, the patient must be conscious and have the legal capacity to give consent-and where the patient for any reason is unable so-to-do, either as a result of the emergency that meets the case, or any other adverse reasons, then his next –of-kin, or any either legal representative can give consent. Counsel referred me to Rule 19 of the Code of Medical Ethics of Nigeria.

Counsel to defendant humbly urge this court to resolve the Central issue in favour of the Defendant since the balance of probabilities is overwhelmingly in favour of the Defendant.

ISSUE 2:

Whether the Claimant can, in the circumstance, invoke the doctrine of Res Ipsa Loquitur?

Counsel argued that in the Claimant's bid to further abuse this Honourable Court's processes, proceeded to invoke the doctrine of Res Ipsa Loquitur - this is after he had previously claimed to have explained what had happened to him.

It is an established principle of law that, Rep Ipsa Loquitur when pleaded by a Plaintiff/Claimant means that the facts or things that occurred are not clear or cannot be explained by the Claimant, or the person invoking it, but the person is certain that it could not have happened but for the negligence of another person. This doctrine and its ingredient have been examined and pronounced upon in numerous cases by the apex Court. See Chudi Verdical Company Ltd. v. Ifesinachi Industries Nigeria Ltd & Anor (2018) LPELR-44701 SC at 17-20.

In Ojo v. Gharoro & ors. (2006) LPELR-2383(SC) (Pp. 54-58 paras. B) it was stated per Oguntade, JSC that the doctrine of Res Ipsa Loquitur only applies:

i.                    When the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control;

ii.                 The occurrence is such that it would not have happened without negligence.

If these two conditions are satisfied, it follows, on a balance of probability that the defendant, or the person for whom he is responsible, may have been negligent. However, there is a further negative condition that totally defeats condition 1 and 2 above, to wit;

There must be NO evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant's negligence must be determined on that evidence."

Thus, the crucial element is that Res Ipsa Loquitur will not apply when there is evidence as to how the occurrence took place.

Counsel argued, the Claimant has stated in his Statement of Claim and Statement on Oath that, he was forced to operate the machine and that while inserting soaps into the machine, his hand slipped and was dragged into the teeth of the machine. The Claimant also claimed that it was the Defendant that gave instructions for his arm to be amputated. Assuming, but not conceding that these are true, the Claimant has offered explanations as to what happened. These averments have negated the conditions for the invocation of the doctrine as the Claimant has - by his evidence admit that he was in control and management of the machine that injured him; and that it was not the Defendant that amputated his arm. However, the Court should be reminded that the Claimant negated these claims during cross examination, and went further to admit the Defendant's claims that two qualified machine operators (Mr. Asheyi and Mohammed Abdullahi) were both present on the said date while his brother was with him during his stay at the hospital. Therefore, the Defendant could NOT have been negligent.

Counsel argued that apparently, there is evidence before this Honourable Court of the circumstances relating to the accident and damages suffered by the Claimant. He is therefore, estopped from relying on this doctrine as it is inapplicable in this circumstance.

Alternatively, assuming but not conceding that the Claimant could rightfully invoke this doctrine, the effect thereof is that the burden of proof moves from him to the Defendant. My Lord, the doctrine, proved that the accident was caused by the negligence of the Claimant. The Defendant led evidence via the Supervisor (DWI), who denied forcing or instructing the Claimant to engage in the act that caused the accident. The Supervisor also proved, and the Claimant admitted that the circumstances of the situation at the time of the accident made it impossible for the DWI to instruct or force the Claimant to engage in the act as claimed by the Claimant. The Defendant also via the Human Resources Manager (DW2) -proved that the Defendant did not instruct anybody not amputate the Claimant's arm, as the Claimant was with the brother from the Defendant's premises to the hospital, and his stay throughout whatever amputation as the Claimant alleged. The Claimant admitted these before the Honourable Court.

 

Issue 3:

Whether the Claimant has a Reply to the Defendant's Statement of Defence.

Counsel submits that from the foregoing, the Claimant has made some allegations of some certain events against the Defendant, and the Defendant has denied those allegations, and has made counter allegations against same Claimant. Alternatively, the Claimant had sought to rely on the doctrine of Res Ipsa Loquitur, thereby supposedly shifting the burden of proof to the Defendant; the Defendant has discharged this burden of proof by leading evidence to the fact that the accident was caused solely by the negligence of the Claimant, and that the Defendant is not responsible for the amputation of the arm of the Defendant (if there was any). Either way, the burden of proof inevitably shifts to the Claimant.

The law is that whoever needs to lead evidence before the court does so by filing the necessary processes, and adopting same before the Honourable Court. In instances like this. the Claimant ought to file his Reply to the Defendant's Statement of Defence. The Claimant-in this case-failed to file this process. The Defendant respectfully submits that the failure of the Claimant to lead evidence in support of its averments in reply to the Defendant's Statement of Defence is in flagrant breach of the provisions of the Evidence Act. 2011. Section 131 of the Evidence Act, 2011 states that "any person who desires any court to give judgment as to any legal right or liability dependent on the existence of facts shall assert and prove that those facts exist".

In Nigeria, facts are proven through judicial evidence which includes oral testimony from a witness which is reduced into writing as a "witness deposition on oath", which is adopted by a witness during trial-this adopted statement, becomes the witness evidence in proof of its' case which is thereafter subjected to the scrutiny of cross-examination by an adversary.

Defendant submitted that, the Claimant in response to the Defendant's Statement of Defence gave the Defendant a document titled "Claimant's Reply to the Defendant's Statement of Defence dated the 14th day of June, 2024" without attaching a Written Deposition on Oath of its witness in support of his reply. On the nature and purport of a Reply Statement on Oath, the Court of Appeal in Garba & anor. v. Banna (2014) LPELR-24308(CA) (Pp. 26 paras. A), it was stated per Onyemenam, JCA thus:

"On its own, a Reply Statement on Oath rests on the word reply. It follows a Claimant's reply in response to issues and arguments raised in an opponent's statement which are fresh. A Reply Statement on Oath is sworn evidence made to proof facts contained in a Claimant's reply to Defendant's Statement of Defence. The Reply Statement on Oath does not add nor revise the Claimant's Statement on Oath. It is only necessary and allowed in proceedings to enable the Claimant proof facts in response to the Defendant's fresh issue raised outside the Claimant's pleading. Accordingly, a Reply Statement, on Oath is that sworn evidence of a Claimant which seeks to prove facts in his Reply Statement as a result of the fresh, unique, novel and further averments introduced to the Defendant's Statement of Defence outside the Claimant's Statement of claim. See: Egesimba v Onuzuruike (2002) 15 NWLR (PT.791) 466."

Counsel urged the court that, the Claimant in the said document alleged and denied facts which were averred (on oath) in the Defendant's Statement of Defence. These can only be done via affidavit or on Oath.

It is trite that a witness statement on oath is the evidence of the witness reduced into writing and usually sworn before a Commissioner for Oaths. In Registered Trustees of Roman Catholic Mission of the Archdiocese of Onitsha & ors. v. Edoziuno (Pp. 14-15 paras. E) (2021) LPELR-56188(CA), it was stated Per Mahmoud, JCA thus:

          “It is important to correct the misconception that a witness statement is a document to be tendered in Court. A witness statement on oath is the evidence of the witness reduced into writing and usually sworn before a Commissioner for Oaths. Once adopted in the proceedings, it transforms to the evidence in chief of the witness. The issue of its admissibility therefore, does not arise."

On the nature and status of a Witness Statement on Oath, it was stated in Associated Business Company Ltd. v. Nwachinemelu & anor. (2014) LPELR-24393(CA) (Pp. 30-31 paras. D), per Daniel-Kalio, JCA thus:

"A witness Statement on Oath is the evidence-in-chief of a witness in written form. It will be recalled that before the High Court (Civil Procedure) Rules currently in use in most, if not all the States of the Federation, the mode of taking the evidence-in-chief of a witness in Court was through his oral testimony. However, in 2004, the Lagos State introduced a new High Court (Civil Procedure) Rules inspired by the Civil Procedure Rules introduced in the United Kingdom in 1999 by Lord Woold. The new Rules required among many other innovations that; the evidence of a witness be reduced into a written statement on oath. Thus, when a witness now gives evidence-in-chief in Court, he is limited to adopting his written statement on oath. He is then cross-examined and re-examined orally. The idea behind a written statement on oath is to reduce time wasted in lengthy examinations-in-chief.”

 

Moreso, the Claimant never moved to adopt, nor adopted, nor sought to tender the said document at the appropriate stage of abandonment. Assuming, but not conceding that the said document is valid before the court, there was no attempt by the Claimant to adopt it during trial. Consequently, it is trite that the Court would always treat such as abandoned, In Onomade v. A.C.B. Ltd. (1997) 1 NWLR (Pt. 480) 126, it was held that such processes before the court MUST be deemed abandoned. This was the same position adopted by the Court in Lemboye v. Ogunsiji (1990) 6 NWLR (Pt. 155) 210; Ajibade v. Pedro (1992) 5 NWLR (pt. 241) 257; Are v. Ipaye (1986) 3 NWLR (Pt. 29) 416.

From the foregoing, it is therefore the Defendant's submission that, the Claimant has failed to prove his case or disprove the Defendant's claims accordingly, we urge your Lordship to discountenance same, in the determination of this Honourable Court's judgment herein.

ISSUE 4:

Whether the instant Suit is not an abuse of Court Process.

Counsel to defendant argued that this suit, he respectfully submit, is an abuse of Court Process.

The Claimant in this Suit stated that he refused the compensation of   N500,000.00 (Five Hundred Thousand Naira), that was offered to him by the Defendant and made no formal demand on the Defendant, and angrily left the table of negotiation - only to, subsequently, initiate the instant Suit before this Honourable Court.

Although the Claimant made mention of a letter of demand that was served on the Defendant by his team of Lawyers, during trial, no evidence was tendered corroborating same. It is therefore crystal clear that, the intention of the Claimant is to use this Honourable Court as a cloak to commit injustice against the Defendant. In The Vessel "Saint Roland" & anor v. Osinloye (1997) LPELR-3234(SC) (Pp.44 paras. E-E), it was stated per Adio, JSC thus:

“a Court should not allow itself through technicalities to be used for perpetrating injustice. See: H.M.S. Ltd. v. First Bank Ltd. [1991] NWLR (Pt. 167) 290."

Furthermore, it is pertinent to further aver the mind of this Honourable Court to the fact that, the cause of action in this Suit arose wholly in the Ogun State judicial Division of this Honourable Court, ALL the Parties herein reside in Ogun State, yet, the Claimant went all the way to the Federal Capital Territory, Abuja in the institution of this Suit.

In conclusion under this head, we respectfully submit that the Claimant's refusal to make a formal demand on the Defendant before instituting the instant Suit, as-well-as, traveling to the Federal Capital Territory of this Honourable Court as against the Ogun or Lagos Judicial Division of this Honourable Court wherein the cause of action arose amounts to an abuse of Court Process.

CLAIMANT’S FINAL WRITTEN SUBMISSION

The facts of the case are straightforward as encapsulated in the respective processes and further evidence elicited during cross examination in this suit.

Counsel to Claimant raised a sole issue for the determination of this suit, to wit;

Whether the claimant has successfully proved his case and is therefore entitled to the reliefs sought.

Counsel to claimant submitted that in answer to the above lone issue raised, the answer is in the affirmative. Counsel submit that the Defendant's negligence led to the amputation of the Claimant's arm which has resulted in the loss of amenities of life, loss of expectation of life and future life of earning.

The Blacks' Law Dictionary 9th edition defines negligence as "The failure to exercise the standard of care that a reasonable prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' right." See: Lufthansa German Airlines v. Ballanye (2013) 1 NWLR (Pt. 1336) 527. The Supreme Court Per Kalgo J.S.C. had this to say: "The general principle is that the tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached and to succeed in an action for negligence the plaintiff must prove by the preponderance of evidence or the balance of probabilities that:

i.                    The Defendant owed him a duty of care;

ii.                 The duty of care was breached;

iii.               The Claimant suffered damages arising from the breach."

Counsel referred this court to Nigerian Airways Ltd. V. Abe (1988) 4 NWLR (Pt. 90) 524; Anyah v. Imo Concorde Hotels ltd. (2002) 18 NWLR (Pt. 799) 377; Agbonmagbe Bank Ltd. V. C.F.A.O. (1966) 1 All NWLR 140 at 145; Universal Trust Bank of Nigeria v. Fidelia Ozoemena (2007) 3 NWLR (pt. 1022) 448; (2007) 1-2 SC (pt. 11) 211.

The defendant owed him a duty of care

It is trite that in determining whether a duty of care exists between two parties, it must be established that there is a sufficient relationship, which creates proximity between the parties such that the actions or inactions of the party on which the duty of care lies can adversely affect the other party. See the case of STERLING BANK PLC V. SAMAK ASSOCIATES LTD & ORS (PP. 9-10 PARAS. C).

Counsel submitted that, in the instance case, the Claimant is an employee of the Defendant. The Defendant thus owes the Claimant a duty of care as there exist an employment contractual relationship between the parties, which places an obligation on the Defendant to ensure the safety of the Claimant as its employee in the course of carrying out his duties and responsibilities. Therefore, the employer/employee relationship between the parties in this suit, raises a prima facie duty of care on the Defendant, to ensure the safety of the Claimant at all material times, while performing his duties and responsibilities.

Counsel submitted that, the Claimant in paragraph 2 of his witness statement on Oath stated that he was employed by the Defendant on the 1st of October, 2022 as a Labourer, whose scope of duty entails offloading and Loading of materials and products. This same assertion was admitted by the Defendant in paragraph 3 of its statement of Defence that "the Claimant job description was loading and offloading of materials and products, without more".

From the forgoing, it has been clearly established without any iota of doubt that the Claimant's scope of duty in the service of the Defendant was to offload and load materials and products. It is trite law that facts admitted need no further proof. Please See, MBA v. MBA (2018) LPELR-44295 (SC) P. 24-25, Paras. F-E, Solana v. Olusanya & Ors (1975) LPELR-3097 (SC) P. 10, Paras.

Counsel submitted further that the Defendant was willfully disregardful of the Claimant's right and safety when he failed to provide safety gears and train the Claimant on the use and operation of the washing machine. Rather the Defendant's staff compelled the Claimant to operate the washing machine which was outside the scope of the Claimant's work.

The duty of care was breached

It has been held that the Tort of negligence arises when the Defendant owes the Claimant a duty of care. In the case of Aero Contractors Co. of (Nig) Ltd v.Daramola (P. 8-9 paras. E) the Court stated that; "It is pertinent at this juncture to reiterate that the general principle of law regarding the tort of negligence is that it arises when a legal duty of care owed by the defendant to the plaintiff is breached.”

Counsel draw the attention of this court to paragraphs 9 and 11 of the statement of defence wherein the defendant averred that it was not its negligence that caused the Claimant his injury rather that the injury occurred as a result of the Claimant's act of abandoning his duty post while in the employment of the Defendant. On this counsel submit vehemently that the Claimant did not abandon his duty post, but was acting on the instructions of his superior in the company. That even upon the Claimant's protest and refusal of no having the knowledge to operate the highly technical washing machine, he was forced and cajoled to operate the washing machine on the ground that it was still within the working hours without providing the Claimant with any protective wears or tools.

Counsel submitted that, the Claimant in paragraph 3 of his witness statement on oath stated that the Defendant was in the habit of shuffling staff to fill any vacancy at any given time which made the defendant compel him to leave his job role of loading and offloading material or product to operating the washing machine without prior knowledge of the use and operation of same. The Defendant corroborated same during cross examination that the incident occurred at 3am to 4am when most of the regular staff had gone home and it was only the Claimant that was at the machine.

The Defendant also admitted during cross examination that the Claimant was putting on his personal clothes with no protective gears or tool. The defendant also admitted to the fact that the job description of operating the machine was for Ashayi and not the Claimant during cross examination.

Furthermore, it is true that the Claimant's injury occurred as a result of his being coerced to operate the highly technical and complex washing machine outside the purview of his work and without prior training in handling of same. The machine firmly gripped his hand and grievously injured him. My Lord, it is our submission that the Defendant's negligence principally caused his injuries and the resultant permanent incapacitation.

My Lord, the injuries would not have happened were it not for the DW1's insistence that the Claimant should operate the highly technical and dangerous machine, been fully aware of the hazardous nature of the machine and the risk involved in operating it without any protective gears. The Defendant was also negligent when it failed to provide adequate medical treatment for the Claimant's injuries, which exposed the injuries he sustained to infections and complications, which ultimately resulted to the amputation of his arm. We submit that the Defendant's default is the proximate and predominant cause of the Claimant's injury. Counsel further submit that the Defendant has breached the duty of care she reasonably owed to the Claimant, and urge this court to so hold.

The claimant suffered damages arising from the breach

Also, it is trite that to successfully prove the tort of negligence in an action for damages, a Claimant must show the existence of actual damage. In the case of IMNL V. NWACHUKWU (2004) LPELR-1526(SC) (P. 22 Paras. B) the court held that;

"It is also obvious that negligence is only actionable if actual damage is proved. There is no right of action for nominal damages in the tort of negligence. In Munday Ltd. v. L.C.C. (1916) 2 K.B. 331 at 334 Lord Reading, C.J. stated: "Negligence alone does not give a cause of action, damage alone does not give a cause of action; the two must co-exist." Per MUSDAPHER, J.S.C in I.M.N.L V. NWACHUKWU (2004) LPELR-1526(SC) (Pp.22 paras. B).

Counsel on the above authority submitted that, in the extant case, it is evident from the evidence adduced by the Claimant in this suit that he has suffered severe damages due to the Defendant's negligence. The Claimant gave clear evidence that he suffered severe injuries from the incident. He stated in paragraphs 12, 13 and 14 of his witness statement on oath that while operating the highly technical washing machine, the machine grabbed his hand alongside the rubber used to pour chemicals into the washing machine causing him grievous injury, that he was rushed to the hospital and woke up to see that one of his hands had been amputated without his consent. That due to the severity of the injuries, he lost a lot of blood and had to be infused.

Stretching this further, the Claimant relied on the doctrine of RES IPSA LOQUITOR on the very nature of the severe injuries which spoke for and described itself as evidence of the injury/damage caused as a result defendant's negligence.

Furthermore, to discharge this duty, the Claimant pleaded in paragraphs 12, 14 and 22 of the statement of claim, the damages he suffered due to the accident that led to the amputation of his hand, which has led to the loss of his life expectancy. That the injury has led to a permanent disability and his life goals and visions has been cut short, that he can no longer make ends meet or cater for his dependants due to the disability caused by the Defendant's negligence. That the land he acquired to enable him build a house for himself and his family, was sold in order for him to afford medical treatment.

The Claimant has suffered severe damages to entitle him to a claim for negligence against the Defendant, and claimant urge this court to so hold. On this very note, Counsel submitted that the Defendant has breached the duty of care she owed to the Claimant, and is thus liable in damages and the Claimant is therefore entitled to compensation and all the reliefs sought in this suit. In the case of Etisalat Nigeria v. Ken (2022) LPELR-58705 (CA) (P. 16-17 Paras. F), it was held that "...Flowing from the foregoing, and given the settled and trite principle of law that where there is breach of the duty of care owed by the defendant to the Plaintiff, occurrence of injury to the latter thereby gives rise to an action for damages." Per Williams-Dawodu, J.C.A.

Counsel also referred this court to section 7(1) of the Employee's Compensation Act 2010 which provides thus;

“Any employee, whether or not in a workplace, who suffers any disabling injury arising out of or in the course of employment shall be entitled to payment of compensation.”

Counsel urge that it is also pertinent to note that even where there was no specific instruction from the employer, but the accident occurred from an act done by a workman for the purpose and in connection with the employer's trade or business, it will also be deemed to have arisen in the course of and out of his employment. See the case of UAC (Nig) Ltd v. Joseph Orekyan (1961) 1 all NLR 719. Thus, where a workman acted as an agent of necessity, and was injured in the process, the employer would still be liable to pay compensation even though the act was not in the workman's schedule of work.

Counsel to claimant therefore submitted that the Claimant has proved a clear case of negligence against the Defendant, and he is therefore entitled to all the reliefs sought.

 

 

DECISION

I have carefully gone through the pleadings filed and the evidence adduced by parties and the written submissions of counsels in this matter and I am of the view that the sole issue that arose for determination is:

Whether the claimant on the preponderance of evidence have been able to prove negligence to warrant this court to grant the reliefs sought.

The law is of common place that the burden of proof is always on the claimant who want the court to accept his evidence in order to obtain judgment. The natural course is that the claimant should bring his own cause of complaint before the court in every case where he has anything to prove, either as to the facts necessary for his obtaining a verdict or as to the amount of damage to which he conceives the proof of such facts may entitle him. In other words, by virtue of section 133(1) of the Evidence Act, the burden of first proving the 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, regard being had to any presumption that may arise on the pleadings. In the instant case, the burden of proof is on the claimant, for he is the one to lose if no evidence is produced on either side. See Olaniyan v. Oyewole (2011) 14 NWLR (Pt. 1268) 445.

The brief facts of this case are that claimant as an employee of the Defendant as a laborer whose primary duty was to offload and loading of materials and products of the defendant. However, claimant avers that due to shortage of staff DW1 coerced him to operate a highly technical washing machine with no protective gears and safety measures put in place. In the course of operating the machine, the machine gripped the claimant’s hand and grievously injured him. On seeing this, the defendant took claimant to the hospital and at the hospital, the hand was amputated. The defendant on the other hand stated that it was out of claimant’s volition that he went and started operating and working with the washing machine as he was not employed for such duties. Defendant stated that claimant got injured and defendant rushed him to the hospital where he was admitted and later had his hand amputated in the same hospital. Claimant pleaded negligence on the part of the defendant that caused the accident and therefore he is entitle to damages for permanent loss of his hand.

In the light of the issue formulated by this court, an understanding of the tort of negligence is necessary. My learned brother Peters J. in the case of Ilesanmi Temokun v. Nestle Nigeria Plc & Anr Unreported SUIT NO: NICN/IB/29/2022, judgment delivered on 15TH October 2024 try to give us an idea of the word negligence when he stated that negligence is often said to be a fluid principle, which has to be applied to the most diverse conditions and problems of human life. Also, contributing to the understanding of this tort, His Lordship, Nimpar JCA, citing Chevron (Nig.) Ltd & Anor v. Omoregha & Ors (2015) LPELR-24516(CA) in the case of Union Bank of Nigeria Plc v. Dr. Moses Abayomi Obajinmi (2022) LPELR-57354(CA) said -

 

"The term negligence denotes the failure to exercise the standard of care that a reasonably prudent person would normally have exercised in a similar situation. That's to say, any conduct falling below the legal standard established to protect others against unreasonable risk of harm, as against conduct that is intentionally, wantonly, or willfully disregardful of other's rights”

In the case of UTB v. OZOEMENA (2007) ALL FWLR (PT. 358) 1014 at 1024, the Supreme Court had held that negligence is defined as lack of proper care and attention, and or a careless behaviour. In forensic speech, negligence has three meanings - a) It is a state of mind in which it is opposed to intention. b) It is a careless conduct, and c) it is a breach of duty of care imposed by common law and statute resulting in damage to complainant. From the foregoing I may be right to conclude that negligence refers to the failure to exercise the reasonable care that prudent person would have exercised in a similar situation resulting in harm to another. In other words, negligence is about holding individuals or entities accountable when their careless actions or inactions lead to harm, even if they did not intend to cause it.

On the burden of proof, the Supreme Court in Abubakar & Anor v Joseph & Anor 2008 LPELR - 48 (SC) per TOBI JSC, held that the burden of proof of negligence falls on the claimant who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it. Failure to plead and prove particulars of negligence will be fatal to the case of the claimant. See also the case of Heritage Bank Ltd v. Don & Chyke (Nig) Ltd & Anor (2020) LPELR-52423(CA).  Indeed, lack of proof of negligence in a matter as the instant case can be fatal to the case of the claimant.

As noted above, we have accepted that negligence is the omission or failure to do something which a reasonable man under similar circumstances would do or the doing of something which a reasonable man would not do. It therefore follows that the mere occurrence of an accident is not proof of negligence. Therefore, in order to succeed in a claim of Negligence it is not enough to prove that there was an accident, the claimant must prove that the accident was as a result of the negligence of the Defendant. In the case, the nature, circumstances and extent of the accident must be pleaded and evidence adduced to establish the tort. It therefore always ought to be borne in mind that the burden of proof falls on the claimant who alleges negligence, this is because, negligence is a question of fact and not of law and it is the duty on the person who asserts to prove it as failure to prove the particulars of negligence pleaded is fatal to the claimant's case. See Dormund Nig. Co. Ltd & Anr v. Elias (2013) LPELR-21117 (CA).

The principles are well established that negligence as a tort is complete and actionable when three conditions are satisfied, these are (i) the defendant owed a duty of care to the claimant; (ii) the duty of care was breached; and (iii) the claimant suffered damages arising from the breach. A 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 Abubakar v. Joseph (2008) 13 NWLR (Pt 1104) 307; Iyere v. Bendel Feeds and Flour Mills Ltd (2008) 18 NWLR (Pt 1119) 300; GKF Investment Nigeria Ltd v. Nigerian Telecommunications Plc (2009) 15 NWLR (Pt 1164) 344; ABC Transport Co Ltd v. Omotoye (2019) 14 NWLR (Pt 1692) 197.

I have taken my time to explain the concept of negligence; on whom the burden of proof lies; and the elements required to establish the tort of negligence under our laws. The necessary question that follows is whether the claimant has discharged the burden of proof on him in the light of the evidence before this court.

On the issue whether there is a duty of care between claimant and defendant, the claimant led evidence that he was employed by the defendant on the 1/10/2022 and in the course of performing his duty on the 7/12/2022 as usual he resumed for a night duty starting at 7.00pm to close at 7.00am of the following day. While at his duty post that night, Claimant said DW1 asked him to burn some nets at around 3.00am. Claimant stated upon completion of the first task DW1 assign him to commence the operation of the washing machine which is outside his schedule of duties and a technical work that requires trained personnel. It was in the course of working with the washing machine that he got entangled with the machine and he sustained serious injury that led to the amputation of his hand. The Defendant denied that claimant was instructed to perform the task that led to his injury but rather that claimant on his own volition decided to so engage himself without the knowledge of the defendant, but however admitted that the injury sustained was in the course of the work he was doing for the defendant.

The law under the Common Law recognizes that the mere existence of employment relationship, imposes a duty of care on the employer in respect of his employees. And the Court of Appeal in Kabo Air Limited v. Mohammed (2014) LPELR-23614(CA) upheld this position thus -

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

 

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

 

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

 

In the instant case having establish that claimant is an employee of the defendant it therefore follows that the employer who in this case is the defendant have a legal duty to provide a safe workplace for the claimant.  I therefore find that by virtue of the employment relationship between parties as shown in the pleadings and the evidence before me, I hold that the defendant has a duty of care as regards the claimant.

On the question whether there was a breach of the duty of care, it is the case of the claimant that he was coerced by the defendant to operate the said machine which was outside the purview of his work which led to the gripped of him by the machine that caused him the injury that led to the amputation of his hand. Claimant also led evidence that it was the defendant that permitted the amputation. Defendant argued that the evidence of DW1 rebutted all the narration of the claimant and submitted that claimant was not a witness of truth. Defendant submitted further that it never gave permission for the amputation of claimant’s hand. On this point I tend to accept the evidence of DW1 of the defendant that defendant never gave permission for the amputation of claimant’s hand as claimant fail to produce evidence of consent from the hospital granted by defendant for the hand to be amputated. However, I believe the evidence of the claimant who said DW1 kept him busy up to 3.00am in the morning. The claimant in his demeanor appears to be telling the court the truth of what transpired while defendant try to bring DW1 to demystify the truth of what happened. It is worth noting that under the ILO Recommendation No. 121 of 1964, from all intent and purposes, employees who suffer work-related injury/accidents are to be entitle to benefits irrespective of whose fault it is or what the cause of the accident is. By Section 254C (1)(f) and (h) and (2) of the 1999 Constitution, as amended, this court is mandated to apply international best practice and treaties, conventions and protocols ratified by Nigeria. What this means is that in adjudicating labour/employment matters, the court is mandated to apply international best practice and treaties, conventions and protocols ratified by Nigeria. See Aero Contractors Co. of Nig. Ltd v National Association of Aircraft Pilots and Engineers Unreported Suit No. NICN/LA/120/2013. This position was reaffirmed in the case of Ferdinand Dapaah & Anr v. Stella Ayam Odey [2018] LPELR-46151 (CA). In the case of Sahara Energy Resources Ltd v. Mrs Olawunmi Oyebola [2020] LPELR-51806 (CA) the court read section 254C (1) (f) (h) and (2) as imposing an obligation on this court to now apply good and international best practices in adjudication. By virtue of the fact that claimant suffered a work-related injury in the defendant, I find that there is a breach of duty of care on the part of the defendant. Having arrived at the reasoning above, I find that the defendant being the employer of the claimant is in breach of its duty as it relates to the claimant. In other words, I hereby declare that defendant is liable for the permanent injury and disability of the claimant. It therefore follows that relief 1 of the claimant’s main claim hereby succeeds. I so hold.

Having so held above, it naturally follows that damages are the direct consequence of the injury sustained that led to the amputation of claimant’s hand which is attributed to the defendant’s negligence. It is the case of the defendant that a compensation of the sum of ?500,000.00 was made to the claimant which was turn down. From the look of the claimant in the witness box he is in his prime age and having a lot of future ahead of him but is now made to live without one of his hands.

The Court of Appeal in ECOBANK NIGERIA LIMITED v. ALHAJI AMINU SALEH (2020) LPELR-52024(CA) considered this issue of damages for negligence in the following words:

The lower Court also awarded the Respondent the sum of N10 Million as general damages. General damages means such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily results from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the claimant. General damages are such as the Court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. General damages is quantified or calculated by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case and since general damages is always at large, the trial Court may also take into account the motive and conduct of the defendant where they aggravate the claimant's injury - Akinfosile Vs Mobil Oil (Nig) Ltd (1969) NCLR 253... General damages is the same thing as compensatory damages and it is damages recovered in payment for actual injury or economic loss; it is a sum of money awarded in a civil action by a Court to indemnify a person for a particular loss, detriment or injury suffered as a result of the unlawful conduct of another. It provides a plaintiff with a monetary amount necessary to replace what was lost. Damages is calculated on the basis of loss sustained by the injured party. Thus, what is required of a plaintiff or claimant to qualify for the award of general damages is to prove that he or she suffered a legally recognizable loss or detriment that is compensable by a known amount of money that would be objectively determined by a Judge - MTN Nigeria Communications Ltd Vs Aquaculture Cooperative Farmers Society Ltd (2016) 1 NWLR (Pt 1493) 339 Mekwunye Vs Emirate Airlines (2019) 9 NWLR (Pt 1677) 191 at 224-225”

From the foregoing there is no specific yardstick that will serve as a guide for the award of compensatory damages as in this case. It is at best “quantified or calculated by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case.” In like manner, the provisions of sections 14 and 19 (d) National Industrial Court Act, 2006 gives this court the leverage to award compensation or damages and grant remedies to deserving parties in the interest of justice. The claimant in relief 2 is claiming ?19, 800, 000.00 as damages and ?100, 000, 000.00 for damages and compensation. As noted above, general damages is also generally termed as compensatory damages. I discovered that claimant in his reliefs 2 and 3 is claiming damages for loss of expectation and general damages as compensation. I see no reason in the way and manner claimant seems to be trying to create this artificial difference between relief 2 and 3. I can imagine putting myself in the position of the claimant: I can see clearly that indeed claimant deserves justice in view of his position in life. In fact if we accept the intrinsic worth of every human being, then justice becomes the minimum debt we owe to him, for if we deny him justice, we have declared him worthless. Therefore, for the reasons giving, I hereby award the sum of ?15, 000, 000. 00 (Fifteen Million Naira) as damages for the claimant in view of the suffering, injury, loss of expectation of life and future loss of earnings. On this ground relief 2 only succeeds to the extent of the order of this court. I so hold.

As regards relief 3, having awarded damages as captured above, this relief is hereby refused. I so hold.

Judgment is hereby entered. Cost of ?200, 000.00 (Two Hundred Thousand Naira) is hereby awarded against the defendant.

  

…………………….

Hon. Justice E. D. Subilim

JUDGE