IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISON

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP: HON. JUSTICE S. A. YELWA.....JUDGE

 

 

SUIT NO.: NICN/LA/365/2023

BETWEEN

 

MR. ANTHONY GREGORY………………………….CLAIMANT

 

AND

 

ATLANTIC SHRIMPERS LTD……………………….DEFENDANT

 

 

JUDGMENT

         

This action is commenced by a general form of complaint dated 3^rd day of January, 2023 and Amended Statement of Facts dated 25^th and filed on the 26^th day of August, 2025, wherein the claimant sought from this court against the defendant the following reliefs:

1.       AN ORDER of court for the payment of the sum of N993,019.66 (Nine Hundred and Ninety-Three Thousand Naira, Sixty Kobo) being an unpaid balance of the total sum of N1,690,224.50 (One Million Six Hundred and Ninety Thousand, Two Hundred and Twenty-four Naira, Fifty kobo) paid as compensation by Priority Insurance Company to the Claimant which was deducted by the Defendant as medical expenses incurred in the treatment of the Claimant in his involvement in an accident onboard Defendant’s fishing trawler – Shrimpers 22 on the 22^nd day of July, 2012.

2.     AN ORDER of court directing the Defendant to pay the sum of N500,000.00 (Five Hundred Thousand Naira) to the Claimant being professional fees paid by the Claimant for his Solicitors for the institution of this case.

3.     AN ORDER of court for the payment of the sum of N15,000,000.00 (Fifteen Million Naira) being Claimant’s entitlement under the Employment Compensation Act, 2010 over his permanent disability arising from an accident onboard Defendant’s vessel on the 2^nd day of July, 2012.

4.     AN ORDER of court for the payment of the sum of N30,000,000.00 (Thirty Million Naira) as General Damages by the Defendant in favour of the Claimant.

5.     AN ORDER of court for the payment of the sum of N300,000.00 (Three Hundred Thousand Naira) as cost of this suit.

6.     AND SUCH ORDER IN FURTHER ORDERS the Honourable court may deem fit and proper to make in the circumstances.

 

In response to the Claimant’s action, the Defendant filed its statement of defence on the 12^th day of July, 2024. The Claimant filed his Reply to the Defence dated the 13th day of November, 2024, wherein he addressed the issues raised in the Defence.

 

CLAIMANT’S CASE

 

Claimant averred that he was a former employee of the Defendant, was employed as a deckhand sailor pursuant to a letter of appointment dated 11th August 2008, and confirmed on 12th August 2009 and his duties were governed by the Defendant’s Employee Handbook.

Claimant stated that on 22nd August, 2012, while on board the Defendant’s fishing trawler, Shrimper 22 in the Cameroon territorial waters, he saw the outer board fall into the ocean and in the process of retrieving same, he sustained a severe injury resulting in the amputation of his right arm up to the shoulder. The Claimant further stated that prior to the incident, he had on several occasions requested for personal protective equipment (PPE) from the Defendant but the Defendant failed, to provide same.

Claimant contented that following the accident, the Claimant stated that he was treated first in Cameroon and thereafter, at "the Defendant’s clinic" in Lagos, with his medical expenses covered by the Defendant.

Claimant averred that upon resumption at work, he discovered that compensation had been paid on his behalf by Priority Insurance Company into the Defendant's account, but he was only issued a cheque of N697,000.00 (Six Hundred and Ninety-Seven Thousand Naira), a figure he believes does not reflect the full compensation amount.

Claimant alleged that the Defendant wrongfully deducted unspecified medical expenses from the total insurance payout without his knowledge or consent. The Claimant contended that he sought transparency regarding the full insurance compensation paid on his behalf but was met with silence, intimidation, suspension, and eventual exclusion from the Defendant’s premises.

Consequently, the Claimant petitioned the Directorate of Citizens’ Rights, Ministry of Justice, Lagos State, where discussions led to an agreement by the Defendant to pay him a compensation of ?10,000,000.00 (Ten Million Naira), which was not fulfilled. Alleging persistent mistreatment and financial strain in the course of his over fourteen (14) years employment with the Defendant for, the Claimant resigned his appointment, which he characterized as a case of constructive dismissal. Arising from the said circumstances, the Claimant claims entitlement to the sum of ?1,690,224.58 (One Million Six Hundred and Ninety Thousand Two Hundred and Twenty-Four Naira, Fifty-Eight Kobo) as insurance compensation said to cover temporary and permanent disability as well as medical expenses.

DEFENDANT’S CASE

Defendant averred that the Claimant was employed by the Defendant on 11^th August, 2008, and remained in its employment for several years thereafter. On 22^nd July, 2012, the Claimant was involved in an accident while at work. The Defendant stated that the said accident was neither caused by any negligence on its part nor by any breach of its duty of care, but rather arose solely from the Claimant’s own negligence, recklessness, and willful disobedience of established safety protocols. In particular, the Claimant failed to comply with mandatory operational safety procedures and refused to use prescribed personal protective equipment despite repeated instructions and the availability of same. The Defendant further stated that adequate safety measures, trained personnel, and operational guidelines were in place at all material times, and that other employees complied with these measures without incident.

According to the Defendant, notwithstanding the circumstances surrounding the accident it acted promptly and responsibly in line with its duty of care, Nigerian labour laws, and internationally accepted best practices. That given the life-threatening nature of the injuries of the Claimant, it immediately ensured that he received urgent medical attention and initially bore medical expenses due to the emergency involved even though the medical expenses of the Claimant were ultimately the responsibility of the insurance company it enrolled the Claimant with. The Defendant stated that it undertook the initial payments to save the life of the Claimant, and then subsequently sought and recovered the reimbursable sums from the insurer, Priority Insurance Brokers Ltd.

The Defendant further stated that several months after the accident, the Claimant expressed a desire to resume work. However, acting prudently and in the best interest of the Claimant’s health, it only permitted his resumption approximately one (1) year after the accident whilst still paying his remuneration in full throughout the entire period. Upon resumption, the Claimant was not returned to physically demanding deck duties but was instead reassigned to a desk role specifically structured to accommodate his physical condition. This reassignment was effected without any reduction in his salary, benefits, or employment status; and throughout the entire period of his medical absence, the Claimant continued to receive his full remuneration without any deductions whatsoever.

Defendant contented that the Claimant enjoyed several employment benefits over the years, including periodic salary increases, redeployment across departments, approved leave entitlements, access to staff loans, and other welfare benefits. These concessions were extended to the Claimant as part of the Defendant’s commitment to employee welfare and were not obligations imposed by law or contract.

Defendant maintained that despite the sustained goodwill and accommodation by the Defendant, the Claimant’s conduct throughout his employment was persistently characterized by misconduct and poor performance. The Defendant averred that the Claimant repeatedly engaged in acts of absenteeism, lateness, dereliction of duty, insubordination, and other forms of unprofessional behaviour. These infractions necessitated the issuance of several queries, warning letters, and suspensions, during which the Claimant continued to receive his full salary. Defendant, further stated that the Claimant consistently performed poorly in his annual performance appraisals.

Defendant stated that following the accident, rather than demonstrating diligence or appreciation for the Defendant’s support, the Claimant exploited his injury as a tool for intimidation, blackmail, and harassment. The Defendant averred that the Claimant engaged in libelous publications, made unfounded allegations against the Defendant, and incited hostility both internally and externally, all in a bid to exert undue pressure and extract unjustified financial benefits.

Defendant further stated that upon invitations from the Directorate for Citizens’ Rights, both parties appeared before the Directorate and presented all relevant facts and documents. After a thorough examination of the issues, the Directorate declined to proceed further with the matter. On the same day the decision was communicated, the Claimant, evidently displeased with the outcome, voluntarily submitted two handwritten letters of resignation. The Defendant accepted the resignation by a letter dated 9th March, 2023.

Defendant maintained that at the time of his resignation, the Claimant had an outstanding staff loan in the sum of ?80,000.00 (Eighty Thousand Naira). This amount was lawfully deducted from his total terminal entitlement of ?1,079,916.10 (One Million, Seventy-Nine Thousand, Nine Hundred and Sixteen Naira, Ten Kobo), and the balance of ?999,916.10 (Nine Hundred and Ninety-Nine Thousand, Nine Hundred and Sixteen Naira, Ten Kobo) was duly paid to the Claimant by cheque. The Defendant averred that this payment represented the full and final settlement of the Claimant’s entitlements.

The Defendant unequivocally denied ever agreeing, whether orally or in writing, to pay the Claimant or any other person on his behalf the sum of ?10,000,000.00 (Ten Million Naira) or any other amount as compensation. The Defendant further stated that at no time did the Directorate for Citizens’ Rights state or imply that the Claimant was entitled to such compensation. All allegations of outstanding payments, legal fees, or claims of physical, psychological, or financial harm allegedly caused by the Defendant are firmly denied.

Defendant maintained that it fully discharged all its legal, contractual, and moral obligations to the Claimant and did not at any time unlawfully bar or obstruct him from accessing the workplace, except during periods of legitimate disciplinary suspension.

Defendant contended that this suit, having been instituted over eleven (11) years after the cause of action arose on 22nd July, 2012, is statute-barred. Consequently, the Claimant’s right of action has been extinguished, and the Honourable Court is divested of jurisdiction to entertain the suit. In the circumstances, the Defendant urged the Honourable Court to dismiss the claims of the Claimant in their entirety for being unmeritorious, frivolous, and barred by limitation.

 

TRIAL

Trial commenced on 27^th May, 2024, wherein CW1 adopted his written statement on oath deposed to on 3/1/2024, and tendered the following documents in evidence, which were marked and admitted as the documents frontloaded as Exhibits CW1 to CW25. However, the objection raised in respect of the National Newspaper dated 17/12/2022, on the ground that it has not been certified, the document was still admitted and marked as Exhibit CW23.

CW1 was thereafter cross examined by learned counsel to the Defendant on 18^th November, 2024. CW1 was then re-examined by counsel, and the case of the Claimant was closed.

 

Defendant called two witnesses, DW1, a witness of the Court pursuant to a Subpoena Duces Tecum dated the 12th day February, 2025, and DW2, the Assistant General Manager to the Defendant. DW1 tendered the following documents in evidence, which were marked and admitted as the following exhibits; 

1.       Atlantic Shrimpers Limited letter to Priority Insurance Brokers Ltd dated 29th day of November, 2012 – Exhibit D1

2.     Atlantic Shrimpers Limited letter to Priority Insurance Brokers Ltd dated the 4th day of March, 2013 – Exhibit D2

On the other hand, DW2 during his examination-in-chief adopted his Witness Statement on Oath sworn on the 12th day of July, 2024; tendered the following documents in evidence, which were marked and admitted as the following exhibits; 

·        The letter of Omisore Olalekan & Co. dated the 31st day of May, 2022.

·          The Claimant’s reply dated 8th day of January, 2011 to the Defendant’s query.

·        The Defendant’s memoranda dated the 21st day of February, 2013 and the 21st day of March, 2013.

·        The Claimant’s Counsel, Richard Kelani Esq’s letter dated the 10th day of January, 2013.

·        The exchange of correspondences/emails between the Defendant and Priority Insurance Brokers Ltd dated 29th November, 2012; 26th February, 2013 and 4th day of March, 2013.

·        The Defendant’s letter to the NSITF for the compensation to the Claimant dated 6th December, 2012 but received on 7th December, 2012 and the response letter from NSITF dated the 8th day of January, 2014.

·        Nigeria Social Insurance Trust Fund (NSITF) letter dated the 23rd day of April, 2014.

·        Nigeria Social Insurance Trust Fund (NSITF) bundle of letters dated 12th day of May, 2014, 12th day of June, 2014, 11th day of May, 2022, 7th day of July, 2022, 12th day of August, 2022 and 24th day of January, 2023 evidencing the monthly payments.

·        The Defendant’s memo dated the 12th day of February, 2014; email correspondence dated 29th day of March, 2016; Claimant’s letter dated 30th day of March, 2016; Defendant’s memo 31st day of March, 2016; NSITF letter dated 25th day of May, 2016; and Defendant’s memo dated the 26th day of May, 2016.

·        The letters of the 10th day of June, 2022 by Omisore Olalekan & Co. and the Defendant.

·        The letters of invitation from the Directorate for Citizens Rights dated 11th day of January, 2023 and 17th day of February, 2023.

·        The Claimant’s letters dated the 8th day of March, 2023.

·        The Defendant’s letter dated the 9th day of March, 2023.

·        The Defendant’s cheque representing the sum of N999, 916.10 (Nine Hundred and Ninety--Nine Thousand, Nine Hundred and Sixteen Naira, Ten Kobo) and document showing the breakdown of the Claimant’s entitlement all dated the 13th day of March, 2023.

·        The Defendant’s Operations Department complaint letter dated 20th day of February, 2013.

·        The Defendant’s Operations Department’s complaint letter dated 10th day of April, 2013 and query memo on the Claimant dated 10th day of April, 2013.

·        The Operations Department’s complaint letter dated 19th March, 2014 and query memo on the Claimant dated 20th day of March, 2014.

·        The Defendant’s Stores (HOD) handwritten complaint note dated 29th day of September 2015, query memo on the Claimant dated 30th day of September 2015, Claimant’s reply to query dated 30th day of September, 2015 and the Defendant’s issued 3 days suspension letter dated 3rd day of October, 2016.

·        The Defendant’s Stores (HOD) handwritten complaint note dated 29th day of March 2016, query memo on the Claimant dated 30th day of March 2016, Claimant’s reply to query dated 5th day of April, 2016 and the Defendant’s issued warning letter dated 11th day of April, 2016.

·        The Defendant’s query memo on the Claimant dated the 2nd day of August, 2017, the Claimant’s reply dated the 2nd day of August, 2017 and the Defendant’s warning memo dated the 10th day of August, 2017.

·        The Defendant’s Stores (HOD) handwritten complaint note dated 28th day of May, 2018, query memo on the Claimant dated 28th day of May, 2018, the Claimant’s reply to query erroneously dated 26th day of May, 2018 and the Defendant’s warning memo dated 30th day of May, 2018.

·        The Defendant’s Stores (HOD) handwritten complaint note, dated 12th day of October 2018, query memo on the Claimant dated 12th day of October, 2018, Claimant’s reply to query dated 12th day of October, 2018 and the Defendant’s warning letter dated 17th day of October, 2018.

·        The Defendant’s Stores (HOD) handwritten complaint note dated 24th day of April 2019, query memo on the Claimant dated 24th day of April, 2019, Claimant’s reply to query dated 24th day of April, 2019 and the Defendant’s warning letter dated 4th day of May, 2019.

·        The Defendant’s Managing Director’s handwritten complaint note, dated 7th day of June, 2019, query memo on the Claimant dated 7th day of June, 2019.

·        The Defendant’s Stores (HOD) typed complaint note received on the 31st day of October, 2019, query memo on the Claimant dated 31st day of October, 2019, Claimant’s reply to query dated 1st day of November, 2019 and the Defendant’s suspension letter dated 2nd day of November, 2019.

·        The Defendant’s Stores (HOD) handwritten complaint note dated 30th day of May, 2020, query on the Claimant dated 1st day of June, 2020, Claimant’s reply erroneously dated 16th May, 2020 and the Defendant’s warning memo dated 16th day of June, 2020.

·        The Defendant’s query memo dated, 13th day of July, 2020, Claimant’s reply dated 13th day of July, 2020 and Defendant’s waring memo dated 14th day of July, 2020.

·        The Defendant’s Senior Stores Officer handwritten complaint note dated 14th day of July, 2020, query on the Claimant dated 14th day of July, 2020, Claimant’s reply to query dated 15th day of July, 2020, the Defendant’s suspension letter dated 17th day of July, 2020 and the Claimant’s apology letter dated 27th day of July, 2020.

·        The Defendant’s Stores (HOD) typed complaint note received on the 14th day of July, 2021, Defendant’s query memo dated 15th day of July, 2021, the Defendant’s Stores (HOD) typed complaint note received on the 15th day of July, 2021, the Defendant’s query memo titled ‘Dereliction of Duty’; the Defendant’s incident reports dated 15th and 19th day of July, 2021, Claimants reply to query dated 17th day of July, 2021 and the Defendant’s suspension letter dated 19th day of July, 2021.

·        The Defendant’s Stores (HOD) typed report note dated 7th day of February 2022, query memo on the Claimant dated 7th day of February, 2022, Claimant’s reply to query dated 7th day of February, 2022 and the Defendant’s suspension letter.

·        The Defendant’s query memo on the Claimant dated 22nd day of July, 2022, 6th day of August 2022, 9th day of August 2022 (titled ‘Misconduct’), 11th day of August, 2022 (titled Continuous absence from Duty), and 23rd day of August, 2022.

·        The Defendant’s query memo on the Claimant dated 16th day of September 2022, Claimant’s reply to query dated 19th day of September, 2022 and the Defendant’s warning letter dated 22nd day of September, 2022.

·        The Defendant’s query memo on the Claimant dated 6th day of January, 2023, Claimant’s reply to query erroneously dated 6th day of February, 2023 and the Defendant’s warning letter dated 9th day of January, 2023.

·        The Defendant’s query memo on the Claimant dated 30th day of January 2023.

·        The Defendant’s memo dated 3rd day of February, 2015.

·        The Claimant’s applications and the Defendant’s Loan Form dated the 2nd day of May, 2013, 24th day of February, 2014, 3rd day of February, 2015, 29th day of March, 2016, 30th day of January, 2017, 4th day of June, 2018.

·        The Defendant’s memo dated 31st day of August, 2022.

·        The Claimant’s hand-written application and the Defendant’s memo of approval all dated the 14th day of January, 2013.

·        The Claimant’s hand-written application for annual leave dated 31st day of July, 2013 and the Defendant’s approved Leave Form.

·        The Claimant’s hand-written application for annual leave dated 27th day of May, 2015 and the Defendant’s approved Leave Form.

·        The Claimant’s hand-written application for annual leave dated 13th day of August, 2015 and the Defendant’s approved Leave Form.

·        The Claimant’s hand-written application for annual leave dated 15th day of September, 2016 and the Defendant’s approved Leave Form.

·        The Claimant’s hand-written application for annual leave dated 23rd day of August, 2017 and the Defendant’s approved Leave Form.

·        The Claimant’s hand-written application for annual leave dated 22nd day of January, 2019 and the Defendant’s approved Leave Form.

·        The Claimant’s hand-written application for annual leave dated 4th day of January, 2020 and the Defendant’s approved Leave Form.

·        The Claimant’s hand-written application for annual leave dated 18th day of May, 2020 and the Defendant’s approved Leave Form.

·        The Claimant’s hand-written application and the Defendant’s memo of approval all dated the 15th day of January, 2021.

·        The Claimant’s hand-written application for annual leave dated 21st day of January, 2021 and the Defendant’s approved Leave Form.

·        The Claimant’s hand-written application for annual leave dated 30th day of March, 2022 and the Defendant’s approved Leave Form.

·        The Claimant’s hand-written application dated 26th September, 2022 and the Defendant’s memo of approval dated the 27th day of September, 2022.

·        The Claimant’s hand-written application and the Defendant’s memo of approval all dated the 10th day of January, 2023.

·        The Claimant’s handwritten application and the Defendant’s letter to Stanbic IBTC Pension all dated the 11th day of July, 2023.

·        The annual appraisal form dated the 4th day of January, 2016.

·        The annual appraisal form dated the 7th day of December, 2016.

·        The annual appraisal form with assessment date, 16th day of October, 2019.

 

The Honourable Court admitted the exhibits above listed and marked as a bundle as EXHIBITS BUNDLE D1. Consequent upon conclusion of trial in this matter, parties were directed to file and serve their final written addresses respectively. Accordingly, the final written addresses were filed and served.

DEFENDANT’S FINAL WRITTEN ADDRESS

Defendant final written address is dated and filed 10/2/2026, wherein counsel formulated the following issues for determination to wit;

 

1)      Whether this Honourable Court has the jurisdiction to entertain this suit as presently constituted.

2)    Whether the Claimant has discharged the burden of proof on him to be entitled to the reliefs sought from this Honourable Court.

(1.)            Learned counsel submitted on issue one that the Defendant filed a Notice of Preliminary Objection dated the 3rd day of April, 2024 but filed on the 4th day of April, 2024, challenging the competence of this suit. The hearing and determination of the Notice of Preliminary Objection was deferred by the Court to the address stage. Counsel, adopts his positions and argument in the said Notice of Preliminary Objection and the Reply on Points of Law dated and filed on the 7th day of June, 2024; and prayed the Honourable Court to dismiss this suit for lack of jurisdiction, as the action is statute-barred.

 

Counsel further contended that it is trite law that jurisdiction is the foundation of every suit. Thus, where a Court lacks jurisdiction, any judgment secured in such an action cannot stand. Counsel referred the Court to the case of Elelu-Habeeb & Anor. v. A.G. Federation & Ors. (2012) LPELR – 15515 (SC) According to the apex Court, when an action is brought before a Court, it certainly presupposes that the Court has jurisdiction or that it is competent to hear and determine the matter; therefore, the moment a defendant satisfies the Court that it has no jurisdiction, the foundation of the case is destroyed. In other words, the Court is prevented from adjudicating on the matter and cannot hear the parties any longer. Counsel relied on the case of Goldmark (Nig) Ltd & Ors v. Ibafon Co Ltd & Ors (2012) LPELR – 9349 (SC).

Counsel submitted that the conditions precedent to the exercise of jurisdiction by the Court has been long settled by the Supreme Court in the locus classicus case of Madukolu v. Nkemdilim (1962) 1 ALL NLR 587 as follows:

a.     It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

b.    The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

c.     The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

 

Counsel maintained that one of the conditions precedents to the exercise of jurisdiction by the Court as stated in Madukolu v. Nkemdilim (Supra) is that “The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction.” In applying this condition precedent to the suit at hand, the question that arises is: Is there any feature in the case which prevents the Court from exercising its jurisdiction? The answer is in the affirmative.

 

It is the submission of counsel that it is settled law that where a law prescribes a period for the institution of an action, any proceeding that is instituted after the period stipulated by the statute is incompetent and cannot stand. Put differently, no Court shall entertain proceedings for the enforcement of certain rights if such proceedings were set on foot after the lapse of a definite period of time, reckoned as a rule from the date of the violation of the right. Counsel commended the cases of Ibrahim v. Judicial Service Committee, Kaduna State & Anor. (1998) LPELR-1408(SC); Sanda v. Kukawa LG & Anor. (1991) LPELR-3001(SC); and Texaco Panama Incorporation v. S.P.D.C. (Nig) Ltd (2002) LPELR-3146(SC).

Learned counsel submitted that in discharging the task before the Honourable Court, the peruse of the originating process and statement of facts to know when the wrong in question occurred and compare it with the date the originating process was filed in Court. Without further ado, such exercise would disclose that the 22nd day of July, 2012, whereas the instant action was commenced on the 22nd day of December, 2023. Simply put, it took the Claimant/Respondent a period of 11 (eleven) years and 5 (five) months after the cause of action arose to institute this suit. Counsel referred the Court to the pleadings in paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the Claimant/Respondent’s Statement of Facts in this respect.

Counsel cited Section 9 (1) & (2) of the Limitation Law, Cap. L84, Laws of Lagos State, 2004 provides thus:

  ‘(1) this section applies to actions claiming damages for negligence, nuisance, or breach of duty (whether the duty exits by virtue of a contract or of a provision made by or under an enactment; or independently of any contract or of any such provision), where the damages claimed by the plaintiff for the negligence, nuisance, or breach of duty consist of or include damages in respect of personal injuries to any person;

 

   (2)    subject to the provisions of this section, no action to which this section applies will be brought after the expiration of three years from the date of which the cause of action accrued”

 

Counsel submitted that the instant suit seeks compensations/damages for negligence and breach of duty owed an employee pursuant to the Claimant’s offer of employment (inclusive of the Employee Handbook), common law and the Employee Compensation Act. The above reproduced provisions of the Limitation Law of Lagos State prescribe that it must be brought within 3 (three) years after the cause of action arose. Whereas the cause of action in the instant suit arose on the 22nd day of July, 2012, the suit was only filed on the 22nd day of December, 2023, that is, 11 (eleven) years and 5 (five) months after the cause of action arose; and as such statute-barred.

 

Counsel further submitted that the provisions of Section 9 (1) & (2) of the Limitation Law of Lagos State are clear and unambiguous. In its ordinary meaning and interpretation, all tort in negligence and breach of duty where damages are claimed must be initiated or instituted within 3 (three) years from when the cause of action arose. A deviation from this laid down limitation timeline will render the said action incompetent.

It is the contention of counsel that the Limitation Law is neither an issue of Rules of Court nor procedural law rather it is one of substantive Law.  Limitation Law is stringent and the operation of a limitation statute is of strict liability; and ignorance of a statutory limitation provision by the Plaintiff is of no moment. Counsel referred to the cases of Williams v. Williams (Supra) and Sanda v. Kukawa LG (Supra) on this.

(2.)  Learned counsel submitted on issue two that the law is trite that the burden of proof lies on the party whose claims will fail if no evidence is adduced in the matter. In essence, the initial burden of proof in civil actions, lies on the party against whom the Judgment of the Court would be delivered if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

Counsel further submitted that the law further provides that, if the party on whom the initial burden of proof lies, adduces evidence which ought to reasonably satisfy the Court that the fact sought to be proved is established, the burden shall then shift to the party against whom Judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.   This provision should be construed as a swing, which shall move successively to the adverse party only when a party has discharged his burden of proof.

Counsel cited the provisions of Sections131-133 of the Evidence Act, 2011 and the Supreme Court’s decision in Chief Adefioye Adedeji v. J. O. Oloso & Anor (2007) LPELR-86(SC); AG, Bayelsa State v. AG Rivers State (2006) LPELR-615(SC)

It is the submission of counsel that in the instant case, it is indisputable that the party that stands to lose if no evidence is adduced by either side to prove their respective cases is the Claimant. The pertinent question that must be answered in these circumstances then is: considering his claims as contained in the Statement of Facts, has the Claimant discharged the burden of proof on him to cause a shift of the burden to the Defendant? Put differently, has the Claimant been able to prove his claims before this Honourable Court, so as to be entitled, without more, to the reliefs sought? On this, the answer is in the negative. Counsel submitted that the claimant has failed to prove to this Court his entitlement to the above claims in its entirety as shown below.

 

(2.)          Counsel submitted that on Indemnity for Medical Expenses, the Claimant claims to be entitled to the sum of ?993,019.66 (Nine Hundred and Ninety-Three Thousand, Nineteen Naira, Sixty-Six Kobo), being the alleged unpaid balance of ?1,690,224.58 (One Million, Six Hundred and Ninety Thousand, Two Hundred and Twenty-Four Naira, Fifty-Eight Kobo), which the Claimant asserts was paid by Priority Insurance Brokers Ltd as compensation for injuries he sustained in the course of employment.

Counsel submitted that in its Statement of Defence, the Defendant asserts that after the completion of the Claimant’s treatment, it sent its claims for refund of the medical expenses and compensation for the Claimant’s injury, whereupon the insurance company awarded the total sum of N1,690,224.58 (One Million, Six Hundred and Ninety Thousand Two Hundred and Twenty-Four Naira Fifty-Eight Kobo only) after its assessment of the claim, to wit: Temporary Total Disability (TTD) – N28,924.67 (Twenty-Eight Thousand, Nine Hundred and Twenty-Four Naira, Sixty-Seven Kobo); Medical – N993,019.67 (Nine Hundred and Ninety-Three Thousand, and Nineteen Naira, Sixty-Seven Kobo); and Permanent disability (PD) – N668,280.24. In proof of this assertion, the exchange of correspondences/emails between the Defendant and Priority Insurance Brokers Ltd dated 29th November, 2012; 26th February, 2013 and 4th day of March, 2013, which the Honourable Court admitted as part of Exhibit Bundle D1 is referred to.

3.     Counsel further submitted that the evidence before the Court, which was also confirmed by CW1, the Claimant himself, shows that the Defendant undertook all of the Claimant's medical expenses both in Cameroon and Nigeria, even though it had procured an insurance cover for the Claimant to handle such situations. According to the Defendant, the urgency of the situation informed its decision to step in, in place of the insurance company so as to save the life of the Claimant. This now raises the pertinent question, is the Defendant entitled to such reimbursement from the insurance company? The answer to this question is in the affirmative.

Counsel contended that the insurance reimbursement claims involve paying for medical treatment out-of-pocket and subsequently submitting bills, discharge summaries, and prescriptions to the insurer for compensation. It is an acceptable practice all over the world, that mirrors the principle of subrogation. A person who buys an insurance cover for whatever risk is entitled to reimbursement. This is usually provided for under an indemnity clause, whereby the insurer contracts to reimburse the insured for expenses incurred or losses emanating from the crystallization of a risk.

Counsel relied on the case of NICON v. Power & Industrial Engineering Co. Ltd (1986) LPELR-1965(SC), Wortheplus Ltd v. Oxygen Healthcare Ltd & Ors (2021) LPELR-55871(CA),

Counsel maintained that the principle of indemnity entitles an insured or in this case, the Defendant who bore the initial loss, to be restored to their pre-loss position. On this counsel referred the Court to the cases of A-G., Lagos State v. Purification Tech. (Nig.) Ltd. (2003) 16 NWLR 14; and Wortheplus Ltd v. Oxygen Healthcare Ltd & Ors (Supra).

 

Learned counsel submitted that the instant claim begs the question: does the Claimant wish to be indemnified for expenses it did not incur, over the party that actually incurred the expenses? It further begs the question: why does the Claimant object to the reimbursement of the said expenses to the Defendant, when the insurance company has itself accepted the liability and has reimbursed the sum it has assessed to be appropriate in the circumstances?

Counsel submitted that it is only reasonable that the Defendant having procured the insurance cover from the insurance company and who also had to stepped in for the insurance company to be reimbursed by insurance company. The medical expenses were borne by the Defendant; it is lawful that it is reimbursed for it by the insurance company.

Counsel further submitted that except the Claimant is able to show that he bore the medical expenses, there is no basis for his claim for the sum of ?993,019.66 (Nine Hundred and Ninety-Three Thousand, Nineteen Naira, Sixty-Six Kobo) paid as medical expenses. On the contrary, the evidence before this Court, Exhibit D1, will show that the Defendant incurred the total sum of N1,355,198.02 (One Million, Three Hundred and Fifty-Five Thousand, One Hundred and Ninety-Eight Naira, Two Kobo) as medical expenses in the circumstances, which it sought to be reimbursed from the insurance company having submitted all the medical receipts. But the Defendant was only able to recover the sum of ?993,019.66 (Nine Hundred and Ninety-Three Thousand, Nineteen Naira, Sixty-Six Kobo) as per the insurance company's assessment. Counsel referred the Court to the case of Castellan v. Preston (1883) 1 Q.B.D 380 (CA)

 

It is the submission of counsel that whilst, it is the duty of the Defendant to care for the Claimant for injuries he sustains at the workplace, the Defendant being aware of this has every right to insure itself against such risks/costs, which it had rightfully done. On the strength of the above, counsel submitted that the Claimant having not expended any sum as medical costs has no basis to seek such indemnity from the insurance company. On the contrary, it is the Defendant, who has incurred the expenses and had taken up such insurance that is entitled to such claims, and the insurance company having accepted the liability and paid accordingly.

(3.)          Counsel submitted that on Solicitors Fees, as part of the Claimant’s claims before the Honourable Court, the Claimant also seeks the sum of N500,000.00 (Five Hundred Thousand Naira) as Solicitors fees allegedly incurred for the institution and prosecution of this suit. This claim is not only legally untenable but also offends established public policy. It is the submission of counsel that Nigerian Courts have consistently held that a party cannot recover solicitor’s fees from the opposing party in litigation, as doing so would amount to unjustly shifting the burden of legal representation.

Thus, counsel referred the Court to the case of Guinness (Nig.) Plc v. Nwoke (2000) 15 NWLR (Pt. 689) 135; S.P.D.C.N. Ltd. v. Okeh (2018) 17 NWLR (Pt. 1649) 420,.

 

Counsel maintained that in alignment with the settled judicial authorities, it is beyond contention that the Claimant’s claim for solicitors’ fees is neither grounded in law, contract nor statute, as such claims are unknown in the Nigerian jurisprudence and offend established principles of public policy. Accordingly, the court is respectfully urged to dismiss the claim as entirely lacking in merit and unsupported by any valid legal basis.

 

(4.)          Counsel submitted that the Claimant's Entitlement under the Employers Workman Compensation Act, 2010, the Claimant also seeks as part of his claims, an order of Court for the payment of the sum of N15,000,000.00 (Fifteen Million Naira) being the Claimant's entitlement under the Employers Workman Compensation Act, 2010 over his permanent disability arising from an accident on board Defendant's vessel on the 22nd day of July, 2012.

 

Learned counsel submitted that under the Employee Compensation Act, 2010, particularly Section 4 thereof, employers are mandated to contribute to the Employee Compensation Fund administered by the Nigeria Social Insurance Trust Fund (NSITF), from which employees who sustain workplace injuries may claim compensation. Such compensation paid under this statutory scheme is fixed, disbursed independently of the employer and by design, not subject to employer discretion or deductions.

 

Section 22(1) of the Employee Compensation Act, 2010 provides as follows:

"Subject to this Act, if a permanent partial disability results from the injury of the employee, the Board shall -

(a) estimate the impairment of earning capacity from the nature and degree of the injury; and

(b) pay the employee's compensation that is a periodic payment equal to 90 per cent of an estimate of the loss of remuneration resulting from the impairment."

Counsel submitted that the evidence before the Court shows that the Defendant enrolled its employees, including the Claimant, under the NSITF Scheme. Upon the occurrence of the accident, the Defendant wrote to the NSITF for the Claimant's compensation as shown in the letter dated 6th December, 2012 (admitted in evidence as part of Exhibit Bundle D1). The Claimant was invited by the NSITF for assessment, which the Claimant attended with the full cooperation of the Defendant as shown in the letters of NSITF to the Defendant and Claimant dated the 8th January, 2014 and 23rd day of April, 2014, respectively; and the  memos of the Defendant to the Claimant dated 12th February, 2014 and 31st March, 2014; and the Claimant’s application for release dated 30th March, 2016 (all admitted in evidence as part of Exhibit Bundle D1). The NSITF based on the assessment paid the Claimant the lump sum of N203,994.00 (Two Hundred and Three Thousand, Nine Hundred and Ninety-Four Naira) as compensation, and placed him on a monthly payment of N10,199.70 (Ten Thousand, One Hundred and Ninety-Nine Naira, Seventy Kobo) as shown in the letters of NSITF dated 23rd April 2014, 12th May 2014, 12th June 2014, 11th May 2022, 7th July 2022, 12th August 2022, and 24th January 2023 (all admitted in evidence as part of Exhibit Bundle D1). The above documents showed that up to the year of instituting this suit, the Claimant was still receiving payments from the NSITF.

Counsel further submitted that NSITF also provided the Claimant with a prosthetic arm and when he discarded it on grounds of discomfort, even after the Defendant had earlier provided him with a prosthetic arm which he refused to use. Counsel referred the Court to the letter of NSITF dated 25th May, 2016; the Defendant's memo dated 12th February, 2014; and email correspondence between NSITF and the Defendant dated 29th March, 2016 (all admitted in evidence as part of Exhibit Bundle D1).

It is the submission of counsel that the Defendant had adequately satisfied the law as far as the Claimant's entitlement to compensation under the Employee Compensation Act is concerned. The evidence before the Court shows that the Claimant was fully involved in the whole processes, and at no time complained about the quantum of payment.

Defendant submitted that the claim for compensation under the Employee Compensation Act is misplaced. According to Section 32(d) of the Employee Compensation Act, the board shall make all payments of the various compensation or benefits to any person entitled to such compensation or benefit and make all disbursements required to be made out of the Fund established under this Act. The only duty of the Defendant in this case is to ensure that the employee is enrolled under the Scheme and make its contributions to the fund, which have been satisfied. Any grievance regarding the payment should be directed against the NSITF, and not the Defendant.

Learned counsel submitted that on General Damages, the Claimant further seeks the sum of ?30,000,000.00 (Thirty Million Naira) as general damages. While it is trite that general damages need not be specifically pleaded or strictly proved in terms of quantum, they are nonetheless presumed by law to flow naturally from a wrongful act. Thus, a foundational requirement for their award is the existence of a legally cognizable wrong, that is, an actionable misconduct from which this Honourable Court can infer consequential loss or injury.

Counsel submitted that general damages must flow directly and naturally from the wrongful act alleged and are presumed only where the injury or loss complained of is a necessary consequence of the act in issue. Counsel referred the Court to the case of Osun State Govt. v. Dalami (Nig.) Ltd. (2003) 7 NWLR (Pt. 818) 72 and U.T.C. (Nig.) Plc v. Peters (2022) 18 NWLR (Pt. 1862) 297 (SC).

Counsel submitted that the Claimant has failed to establish his entitlement to the said sum of N993,019.66 (Nine Hundred and Ninety-Three Thousand, Nineteen Naira, Sixty-Six Kobo) and so, no claim for general damages can flow from it.

Furthermore, counsel submitted that it is instructive to note that despite having already received statutory compensation from the Nigeria Social Insurance Trust Fund (NSITF) and under a private insurance policy, the Claimant now seeks to obtain sums paid to the Defendant under the insurance policy, and obtain humungous damages from it. Such a claim is untenable as it effectively seeks to unjustly enrich the Claimant at the expense of the Defendant who merely recouped verified out-of-pocket costs from a policy it solely funded. It is the submission of counsel that it will amount to double compensation for the Claimant who has been adequately compensated under the Employee Compensation Act, and under a private insurance policy to again seek a common law redress. Counsel relied on the case of Kopek Construction Ltd v. Ekisola (2010) LPELR-1703(SC).

 

Counsel maintained that assuming without conceding, that the Claimant is entitled to bring the claim under the Employee Compensation Act, the pertinent question is whether the Defendant has complied with the provisions of the law.

Counsel submitted that the Defendant has fully discharged its statutory obligations under the Act as demonstrated by Exhibits Bundle D1, which comprises of NSITF bundle of letters dated 12th day of May, 2014, 12th day of June, 2014, 11th day of May, 2022, 7th day of July, 2022, 12th day of August, 2022 and 24th day of January, 2023 evidencing the monthly payments to the Claimant. In addition to fulfilling its duties under the Employee Compensation Act, the Defendant voluntarily procured a private insurance policy with Priority Insurance Brokers Ltd to provide supplementary coverage for its crew members. The Defendant acted diligently and in good faith by promptly financing the Claimant’s emergency medical treatment following the incident. Subsequently, upon receipt of the insurance payout from Priority Insurance Brokers Ltd, the Defendant rightfully recouped only those medical expenses it had legitimately incurred, consistent with the terms of the private insurance contract and the applicable common law principles governing indemnity and subrogation.

Counsel submitted that the Claimant having failed to produce any credible evidence to substantiate the claim that the Defendant was barred from deducting legitimately incurred medical expenses from the payout by Priority Insurance Brokers Ltd, thereby entitling him to the total sum of ?1,690,224.58 (One Million, Six Hundred and Ninety Thousand, Two Hundred and Twenty-Four Naira, Fifty-Eight Kobo). Consequently, the Claimant’s claim rests on mere assertions devoid of evidential support and should therefore be dismissed by the Honourable Court.

Counsel further submitted that assuming without conceding that such deductions were not proper, the Claimant has failed to show how such deductions occasioned further loss, harm or deprivation to him warranting an award of the humungous sum it seeks as general damages. Counsel cited the case of Gambo v. Ikechukwu (2011) 17 NWLR (Pt. 1277) 561, it is quite plain that the relief of general damages not only requires proof of the alleged acts in breach of the contract between the parties, credible evidence is also required to prove the extent of general damages claimed by the plaintiff.

Furthermore, counsel maintained that the Honourable Court is enjoined that before exercising its discretion judicially and judiciously when awarding general damages, material evidence must be placed before the Court. Counsel referred the Court to the case of Abiara v. Reg. T.M.C.N. (2007) 11 NWLR (Pt. 1045) 280. In the present case, counsel submitted that the Claimant has not led any documentary or oral evidence demonstrating pain, hardship, reputational damage, emotional distress or any other form of consequential loss flowing from the alleged deductions. Instead, what is before the Court is a bare assertion, devoid of legal or factual substantiation which cannot justify the exercise of the discretion of this Honourable Court in awarding general damages. In the absence of any proven wrongful act attributable to the Defendant and considering the Claimant’s failure to adduce credible or material evidence in support of his claim, the request for ?30,000,000.00 (Thirty Million Naira) as general damages is thus, legally unsustainable.

 

Learned counsel submitted on costs, the law is that cost follows event. Counsel referred the Court to the case of  Kasamu & Ors v. Ogundimu & Ors (2016) LPELR-61062(CA). Therefore, it is the submission of counsel that having failed to prove its claims as argued above, the Claimant’s claim for cost of action fails. Counsel maintained that the Claimant’s case fails in its entirety, the Claimant having failed to adduce any credible evidence in support thereof.

 

CLAIMANT’S FINAL WRITTEN ADDRESS

Claimant final written address is dated 5/6/2026 and filed 8/6/2026, wherein counsel submitted two issues for determination to wit;

ISSUE ONE: Whether the Honourable court is clothed with requisite jurisdiction to entertain and adjudicate on this suit as presently constituted.

 

ISSUE TWO: Whether the Claimant has discharged the burden of proof placed on him by law to be entitled to the reliefs sought from this Honourable Court.

 

Learned counsel submitted on issue one that the condition precedent to the exercise of jurisdiction by a court as enunciated by the apex court in Madukolu vs Nkemdilim (1962) ALL NLR 587 is herein contemplated. Counsel referred the Court to the case of Ogunmokin v. Milad, Osun State (1999) 3 NWLR (pt. 594) 261 at 265; Utih vs. Onoyivwe (1991) 1 NWLR (pt. 166) 166 at 206. It is the submission that the Honourable court is clothed with the requisite jurisdiction to entertain and adjudicate upon this matter vis-à-vis the reliefs sought from the Honourable court.

Counsel submitted that the gravamen of the Defendant’s Notice of Preliminary Objection is that Claimant suit is statute barred since the suit is founded on tort of negligence allegedly arising from the acts of the Defendant and the cause of action arose on the 22^nd day of July, 2022 but Claimant filed this action on the 3rd day of January, 2024 barely 11 months after the occurrence of the incident in contravention of Section 9(1) & (2) of the Limitation Law Cap 184, Laws of Lagos State, 2004 which provides for a 3 years limitation period for all actions claiming damages for negligence and where the damage claimed consist of or include personal injuries.

Counsel contended that there is no doubt that the Claimant’s suit is founded on tort of negligence by the Defendant for none provision of safety tools and equipment onboard Defendant fishing trawler known as Shrimper “22” which would have prevented the occurrence of the incident on the 22^nd day of July, 2022 wherein Claimant sustained severe bodily injury of permanent disability on his right hand wherein the claim for damages for personal injuries and other ancillary claims which are beyond the statutory scope of Section 9(1) & (2) of the Limitation Law, Cap 184, Laws of Lagos State, 2004 against the Defendant.

 

It is the submission of counsel that the conception of the Defendant that Section 9(1) & (2) of the Limitation Law of Lagos State Cap L84, 2004 applies to the claims of the Claimant before this suit is aptly misconstrued by Counsel to the Defendant. Though it is trite law as exposed by the apex court through per Anthony Ikechukwu Iguh, JSC (pp 19 – 19, paras C – F) in Ibrahim vs Judicial Service Committee, Kaduna State & Anor (1998) LPELR-1408 (SC) that –

‘The general principle of law is that a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the Plaintiff or the injury person to commenced the action would have been extinguished by such law”.

 

Counsel submitted that the rules of Limitation are founded in consideration of public policy that require that there is an end to litigation, as a right of action should not inure in a person in perpetuity. The objective is to compel a litigant to be diligent in timeously seeking remedy in a court of law, in the event of a breach or violation of any right, interest, contract, statute or custom.

 

Counsel further submitted that it is a settled law that in every general law there is an exception. That Section 9(1) & (2) of statute of Limitation Law of Lagos State Cap L84, 2004 does not apply to contract of employment or service. This position of law was radically demonstrated by the National Industrial Court in the case of Lilian Nnenna Akumah vs. First Bank of Nigeria Plc (Akuma case) in suit No. NICN/N/LA/553/2018.

 

It is the submission of counsel that the Supreme Court precedents recognizes that a continuing injury or continuous damage is a well-established exception to limitation laws (statutes of limitation) in industrial accidents and employment-related cases under this doctrine when a wrongful act like this instant cases, causes continuous, ongoing injury rather than a one-time injury with lasting effects, the limitation period does not start from the initial date of the accident but from the date the injury ceases. Counsel referred the Court to the case of A. G. Rivers State vs A. G. Bayelsa State by Anor. (2013) 3 NWLR (pt. 40) 123.

Counsel submitted that the Claimant’s right hand from the shoulder joint was grilled by the winch machine and same has been amputated, which no doubt is a permanent injury for life sustained during the course of his employment. Counsel maintained that it is a continuous harm or injury until death, so Claimant action is an exception to the limitation law.

Counsel maintained that following the current trend of Lilian Akuma’s case and the Supreme Court decision in NRMAFC & 2 Ors vs Ajibola Johnson (Supra) the law has been radically changed. Statute of limitation law of Lagos State, Cap L84, 2004 particularly Section 9(1) & (2) does not apply to contract of employment or service as in this present case.

Learned counsel submitted on issue two that it is settled principle of law that the burden of proof in civil case squarely rests on the party who asserts to prove with credible and admissible evidence. This position of law is clearly encapsulated in Section 131(1) OF THE Evidence Act, 2911 which provides thus:

 

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which asserts shall prove that these facts exist:”

Counsel also referred the Court to the case of Sokino vs Kpongbo (2008) 7 NWLR (pt.1086) 342 at 362 paragraphs C-E; TUMBIDO VS INEC & ANO (2023) LPRVT-60004, M. ADAMU JAURO, JSC, at page 42-42 paras A-B

 

Learned counsel submitted that the Claimant in proving his case at the trial called a lone witness, himself (CW1) testified by tendering and adopting his Written Statement on Oath dated the 11^th day of August, 2008 which was accordingly adopted by the Honourable Court in his evidence in Chief and subsequently tendered documents which were admitted and marked as Exhibits by the Honourable Court.

Counsel submitted that from the totality of the evidence adduced by the Claimant (CW1), it was not in dispute that Claimant was employed by the Defendant as a deckhand sailor vide a letter of appointment dated the 11^th day of August, 2008 (Exhibit CW1). Claimant testified that he was employed as Grade 2 Strep (2/2) with a basic salary of N6,843.00 which was clearly embedded in the letter of appointment. Counsel contended that the Claimant’s appointment was confirmed by the Defendant after the 3 months probative period vide a letter of confirmation dated the 12^th day of August, 2009 with effect from the 11^th day of August, 2009 (Exhibit CW3) and the Defendant and Claimant’s contractual relationship was governed by Defendant’s Employees’ Handbook (Exhibit CW2).

Counsel maintained that the Claimant adduced evidence to the effect that on the 22^nd day of August, 2012, he had an accident while on board Defendant’s fishing trawler – ’Shrimper 22’ in the high sea with 13 crew in the Cameroun territorial waters for Defendant’s routine shipping/fishing activities wherein around 8pm an outer board fell from the deck into the ocean.

Counsel submitted the Claimant testified that in his frantic bid in operating the Winch Machine, which only few of the crew have special knowledge to operate, to retrieve the outer board from the sea back to the vessel, he became accidented when the rope measuring 30m tied and entangled him and dragged Claimant’s right hand into the Winch Machine which grinded his right hand to his shoulder region.

Counsel further submitted that there is evidence on record that the Claimant received medical attention at Cameroonian hospital where Defendant’s customer donated pints of blood to boost the blood level wherein surgical operation was carried out on Claimant’s right arm. Claimant after 6 days was transferred to Defendant’s Hospital at Apapa, Lagos for continuation of his medical attention. The medical bills of Claimant was footed by the Defendant which was deducted from his insurance benefit paid by.

Learned counsel submitted that on proof of the deducted sum of N993,019.67 as medical expenses from the Insurance Compensation by the Defendant, Section 9 of the Defendant’s Handbook Terms and Conditions of Service bothered on medical treatment. Section 9(iv) provides thus:

            “All accident cases not self-inflicted as approved in the Employee’s Compensation Act (ECA) 2010 as amended, shall be treated at the Company’s designated clinic. The Company therefore bears the cost of treatment as approved by the Employee’s Compensation Act (ECA) in force:”

 

Counsel submitted that the contract of employment between the Defendant and the Claimant is strictly governed by the Defendant’s Employees Handbook embodying the Terms and Conditions of Service (Exhibit CW2). Judicial authorities in Nigeria dictates that an employee handbook, when issued and was incorporated into the employment relationship, is legally binding and governs the contract of employment alongside the letter of employment. Counsel contended that the Court can enforce these documents as the primary source of rights, obligations, and disciplinary procedures. The position of law could be gleaned from plethora of decided cases. The court emphasized that the staff handbook is part of the contract and in interpreting it, no addition or subtraction is permitted. Counsel referred the Court to the case of   A.R. Momoh vs CBN (2007) 14 NWLR (pt. 1055) 508 CA at 527,

Lucky Ewere Obianke vs Dana Airlines Ltd Suit No. NICN/LA/18/2024.

 

Counsel submitted that it is evident in the oral and documentary evidence of the Defendant that it deducted the sum of N993,019.67 as medical expenses incurred in treating the Claimant from the Insurance Compensation paid by Priority Insurance Company. It is not in dispute that the Defendant’s Employees Handbook embodies the Terms and Conditions of Service.

It is the submission of counsel that DW2 during the cross-examination when referred to Clauses 9(iv) of the Defendant’s Employees Handbook and asked whether Defendant was right in deducting the medical expenses it incurred from the Claimant’s insurance compensation paid by Priority Insurance Company, he answered in the affirmative.

Counsel maintained that when terms and conditions of employment are clear, they are to be regarded in their plain meaning, and oral evidence cannot contradict the written documented terms. Counsel cited the case of Ayorinde vs Kuforiyi (2022) I-L PELR – 56600 (SC); Bugo & Anor vs Governor of Rivers State & Ors (2006) 11 NWLR (PT. 991) 473.

Learned counsel submitted that  against the actual medical expenses of N1,335,198.00 (One Million, Three Hundred and Fifty-five Thousand, One Hundred and Ninety-Eight Naira) submitted to the Insurance Company, the defendant was only able to recover the sum of N993,019.67 (Nine Hundred and Ninety-Three Thousand, Nineteen Naira, Twenty-Four Kobo) from the Insurance Company, thus incurring a loss of N362,178.33 (Three Hundred and Sixty Two Thousand, One Hundred and Seventy Eight Naira, Thirty-three Kobo)”

Counsel submitted in Paragraph 37 of the Defendant’s Written Statement on Oath that– All sums due to the Claimant from the insurance company were paid to him, except for the medical expense which the Defendant had claimed as reimbursed of expenses from the insurance, a substantial portion of which was not even approved by the Insurance Company.”

 

It is the submission of counsel that the Defendant by virtue of paragraph 6 of his Written Statement on Oath admitted that “the Claimant’s employment is governed by the Defendant’s Handbook.” therefore, the act of the Defendant in deducting the medical expenses incurred in treating the Claimant from his insurance compensation is a clear breach of contract, to alter, or vary its contents”. Counsel relied on the case of Omega Maritime & Energy Ltd vs Prodos Ltd. (2018) LPELR - 44675 (CA), Onuora Mba vs. Udeozor Chigho Mba (2018) LPELR – 44295 (SC)

Counsel contended that it is an unfair labour practice by the Defendant to deduct treatment costs from the Compensation Insurance payout because those costs are either covered separately by the employer or insurance or are part of the rehabilitation.

 

Learned counsel submitted that one of the reliefs of Claimant before the court is for the payment of N500,000.00 (Five Hundred Naira) only, being Solicitor’s fees incurred by the Claimant in the prosecution of this case which payment the Defendant contended in paragraph 6.33 of its written submission to be unattainable and also offends established public policy. Counsel cited the cases of Guinness (Nig.) Plc vs Nwoke (2000) 15 NWLR (pt. 639) 135; S.P.D.C (Nig.) Ltd. vs Okonedo (2008) 9 NWLR (pt. 1091) 85; S.P.D.C.H Ltd. vs Okoh (2018) 17 NWLR (pt. 1649) 420; Kolo Air Ltd. vs Mumi Bureau De Change Ltd. (2020) 4 NWLR (pt. 1715) 488; and Suffolk Pet. Services Ltd vs Adananmansor (Nig.) Ltd. (2019) 2 NWLR (pt. 1655) in paragraphs 5.34, 5.35, 5.36. 5.37 and 5.38 respectively.

 

Counsel submitted that recent decisions by Nigeria Courts indicates a shift towards considering claims for Solicitors fees as part of recoverable cost, particularly when properly pleaded and proven with credible evidence as special damage, and not considered unethics and unreasonable. Counsel referred the Court to the case of FCMB vs Sabitu (2025) LPERL – 81397 (CA)

 

Counsel submitted that with regard to the above recent cases, it is no more in doubt that Solicitor’s fees if reasonably incurred is recoverable by the order of court provided it is properly pleaded and proven with evidence. The claimant in this suit in paragraph 58 of his statement of facts and corresponding paragraph of his written statement on oath pleaded the bill of professional charge dated the 20^th day of November, 2023 and receipt of payment of professional fees dated the 12^th day of December, 2023 as contained in paragraph 22 and 23 on the list of documents tendered in evidence and admitted and marked as evidence by the Honourable court without being challenged by the Defendant.

Learned counsel submitted that the Claimants entitlement under the

EMPLOYERS WORKMAN COMPENSATION ACT, 2010, that a claimant who did not seek compensation under the Employee’s Compensation Act (ECA) 2010 can still pursue a common law claim for damages for a workable accident. While the ECA provides a “no-faulty statutory remedy. It does not exclude the right to file a common law action in negligence, provided the claimant can prove the employer’s negligence.

 

Counsel submitted that on general damages the Claimant in this suit in relief 4 claims the sum of N30,000,000.00 (Thirty Million Naira) as general damages against the Defendant. Unlike claims for special damages, General damages are awardable per se upon breach, and the amount payable is based on the discretion of the court guided by the inferable estimation of the sum that could be as far as money is concerned give reprieve to the injured party in line with the hallowed adjudicatory principle of ubi jus ibi remedium. The rational for award of general damages are determined thus: “one the characteristics of general damage is that it is fixed by the opinion of the court, such as the law will presume to be the direct natural or probable consequence of the act complained of.”  Counsel cited the case of Odumosu vs. A.C.B Ltd. (1976) 1 SC55, Samourts vs Maja (1996) 7 NWLR (pt. 460) 33L.

 

Counsel further submitted that general damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss which flows naturally from the Defendant’s act and its quantum need not to be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case where the plaintiff avers in his pleadings that some damage has been suffered without being in a position to calculate its value specifically, the damage would be presumed to have resulted naturally from the action of the defendant that is general damages. Counsel relied on the case of C.B.N vs Ahmed (2004) 15 NWLR (pt. 897) pg. 591.

 

Counsel contented that general damages are damages which the law implies or presumes to have accrued from the wrong complained of or as the immediate, direct and proximate result of, or the necessary result of the wrong complained of. A trial court has discretionary power to award general damage and when exercising such discretionary powers, it has a duty to calculate what sum of money will be reasonably awarded in the circumstances of the case. Counsel referred the Court to the case of Mobil Oil (Nig.) Ltd vs Akinfosile (1969) N.M.L.R 217. Taylor vs Ogheneovo (2012) 13 NWLR (pt. 1316) 46 at 66.

 

Counsel maintained that for the Claimant to succeed in the award of general damages he has to convinced the court that the Defendant owed him a duty of care, which he has breached which resulted to the injury he sustained during the course of employment. We submit that conjecture and speculation have no place in our advertorial system of adjudication. Counsel cited the case of  Adisa vs State (1990) NWLR (pt. 168) 490 at 50.

It is the submission of counsel that the Claimant’s claim bothers on negligence on the part of the Defendant in refusal to provide safety equipment and gadgets for its employees including the Claimant, which is a breach of duty of care owed the Claimant which consequences is the payment of general damages as a compensatory measure to mitigate the suffering. The Defendant’s inaction has resulted to so many casualties of Employees involving in work-place accident as clearly shown in Claimant’s reply affidavit. Counsel referred the Court to the case of Itanseatic Int’l Ltd. vs Usang (2009) 13 NWLR (pt. 784) 376, Iyere B Bendel Feed & flour Mill Ltd. (2009) ALL FWLR (pt. 453) 1212; Julius Berger (Nig.) Ltd vs Ede (2003) 8 NWLR (pt. 823) 526,

                  

Counsel maintained that the accident occurred during the course of Claimant’s employment while in active service at mid sea in Defendant’s fishing troller. It is imperative to reproduce the Claimant’s averment in paragraphs 7 - 17 of his written statement on oath for illustration and analytical purpose. From the averments in Claimant’s pleadings, it is clear that the Defendant owed the Claimant duty of care as specifically pleaded in paragraph 15 of the statement of facts with 9 corresponding paragraphs of the Claimant’s written statement on oath which the Defendant has breached. Counsel relied on the case of Okhai vs C. C. Construction Co. Ltd (1998) 3 NWLR (pt. 543) 584, NUC vs Alli (2024) 3 NWLR; Chukwu & Ors vs Makinde & Anor (2007) LPELR – 4207 (CA).

Counsel submitted that reliefs 1 and 2 are specific damages filed by the Claimant. However, the injury sustained by the Claimant is permanent disability. It was the right hand that was affected and amputated from the shoulder joint and the physical human body created by God Almighty cannot be return back. It is monetary compensation that can salvage the suffering temporarily. Counsel referred the Court to the case of Shell Petroleum Development Co. Nig. of Ltd vs Tubo VII (1990) 4 NWLR (pt. 445) 657; Ukundje vs Shell Petroleum Development Co. Nig. of Ltd (1975) 9 – 11, SC 155.

 

It is the submission of counsel that the Claimant is entitled to general damages, and that the court should consider the tottering and depreciating value of the Naira as a means of medium of exchange within the Nigerian market system and the global economy. Counsel referred the Court to the case of Onagoruwa vs IGP (1991) 5 NWLR (pt. 193) page 593 at 621. Counsel urged the Honourable court to grant good quantum of money as general damages against the Defendant in favour of the Claimant.

Counsel submitted that on costs, it is settled position of the law that a successful party in an action unless he/she misconduct himself or herself, is entitled to cost as of right. This position of law is premised in the principle that cost follow or should follow events, and that a successful party in a litigation is entitled to be indemnified for all the reasonable expenses incurred in the prosecution of the matter up to judgment. Counsel relied on the case of C.O.P vs Cross River State (2922) 18 NWLR (pt. 1862) @ 420 paras D – F SC; Cappa and Dalberto (Nig.) Plc vs Indic (2019) 9 NWLR (pt. 1780) 1 at 14 paras G – H.

Counsel further submitted that it is equally trite that the award or refusal of costs is at the discretion of court provided it is exercised judicially and judiciously. Counsel cited the case of Yakubu vs Ministry Housing & Environment, Bauchi State (2021) 12 NWLR (pt. 1791) 465 CA. It is settled law that claim for cost of action is not a special damage that needs to be specifically pleaded and strictly proved before a trial court must grant it.

Counsel contented that the Honourable court by virtue of Order 55 Rules 1, 2, 4, 5 and 7 is statutory empowered to exercise its discretion in awarding cost against the Defendant in favour of the Claimant.

It is the submission of counsel that the Honourable court has the statutory powers to grant cost in favour of the Claimant if he succeeds in proving his case. Counsel further urged the Honourable court to award a post judgment interest of 10% of the judgment sum in this suit against the Defendant.

 

DEFENDANT’S REPLY ON POINTS OF LAW

Defendant’s reply on points of law is dated and filed 16/7/2026, wherein the Defendant maintains and adopts all of its arguments and submissions as contained in its Final Written Addressed dated 10th February, 2026.

Learned counsel submitted that on jurisdiction and limitation of time, the Claimant in paragraphs 4.2 – 4.13 of his Final Written Address, argued that limitation laws do not apply to contract of employment or service, relying principally on NRMAFC & 2 Ors v. Ajibola Johnson (2019) 2 NWLR (Pt. 1656) 247 and a number of decisions of this Honourable Court. Counsel contended that the argument is a misconception of both the facts and the law. It is important to highlight that the Defendant's Preliminary Objection is not founded on Section 8 of the Limitation Law relating to simple contracts. Rather, it is predicated upon Section 9(1) and (2) of the Limitation Law of Lagos State, Cap. L84, Laws of Lagos State, 2004, which specifically governs actions founded on negligence, nuisance and breach of duty resulting in personal injuries.

Counsel maintained that the entire case of the Claimant, as disclosed in the Statement of Facts, is predicated upon allegations that the Defendant failed to provide adequate safety equipment, breached its duty of care and was negligent in the operation of its workplace safety procedures, thereby causing the injury complained of. Paragraphs 13, 14, 15 and 16 of the Statement of Facts expressly allege negligence and breach of duty of care. The basis of the action is therefore not wrongful termination, unpaid salaries, promotion, pension benefits or any other conventional employment dispute covered under the Claimant’s employment contract. It is fundamentally a claim in negligence and personal injury arising from an alleged workplace accident.

Learned counsel submitted that Section 9(1) of the Limitation Law of Lagos State expressly provides that it applies to actions claiming damages for negligence or breach of duty "whether the duty exists by virtue of a contract or independently of a contract."

Counsel submitted that the legislative intention could not have been clearer. By expressly including duties arising from contractual relationships, the legislature foreclosed any argument that a claimant can evade the operation of Section 9 of the Limitation Law of Lagos State merely because the duty complained of arose within an employment relationship.

Counsel contended that it is settled law that where the words of a statute are plain, clear and unambiguous, the Court must give effect to their ordinary grammatical meaning without importing extraneous considerations. The Court is not permitted to rewrite statutory provisions under the guise of interpretation. Counsel referred the Court to the case of A.-G., Nasarawa State v. A.-G., Plateau State (2012) 10 NWLR (Pt. 1309) 419, 445; Sani v. President, F.R.N. (2020) 15 NWLR (Pt. 1746) 151.

 

Learned counsel submitted that in applying the foregoing principles, there is no ambiguity whatsoever in Section 9 of the Limitation Law of Lagos State. The provision expressly applies to actions for negligence and breach of duty causing personal injury, irrespective of whether such duty arises from contract or otherwise. The Court is therefore bound to give effect to the provision as enacted.

Counsel submitted that the reliance by the Claimant on NRMAFC v. Ajibola Johnson (Supra) is therefore wholly misplaced. The decision concerned the applicability of the Public Officers Protection Act to a contract of service and did not involve a claim for negligence, personal injury, workplace accident, or the interpretation of Section 9 of the Limitation Law of Lagos State. The Supreme Court did not hold that every claim arising within an employment relationship is automatically exempt from limitation statutes. To ascribe such meaning to the decision would amount to extending its ratio decidendi beyond its factual and legal confines.

Nevertheless, counsel submitted that contrary to the submission of the Claimant, appellate courts have consistently recognised that limitation statutes are applicable to employment-related disputes in appropriate circumstances. Counsel relied on the case of UNILAG v. Oluwasanmi (2017) LPELR-42308(CA), UNIJOS v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 47; Ugwuanyi v. NICON Insurance Plc (2013) 11 NWLR (Pt. 1366); and Yare v. N.S.W. & I.C. (2013) 12 NWLR (Pt. 1367), demonstrate that limitation provisions may validly operate against employment claims.

Learned counsel submitted that in the instant case, the Claimant has neither pleaded nor proved any circumstance bringing his claim within any recognised exception to the operation of the Limitation Law. The facts pleaded by the Claimant show unequivocally that the accident complained of occurred on 22nd July, 2012, while this action was not commenced until 22nd December, 2023, a period of approximately eleven (11) years and five (5) months after the cause of action accrued.

Counsel submitted that the law is settled that in determining whether an action is statute-barred, the Court merely compares the date the cause of action accrued with the date the action was instituted. Once the period prescribed by statute has elapsed, the action becomes incompetent and the Court is divested of jurisdiction to entertain it. The consequence of a statute-barred action is far-reaching. Counsel referred the Court to the case of Oko-Jaja v. F.C.S.C. & Ors. (2022) LPELR-57627(CA).

Counsel maintained that the the attempt of the Claimant to characterize the present suit merely as an employment dispute, while misleading, cannot defeat the express provisions of Section 9 of the Limitation Law of Lagos State when the pleadings clearly disclose a claim founded on negligence, breach of duty and personal injury. Before determining whether an action is statute-barred, the Court must first ascertain the true nature of the cause of action disclosed by the Claimant's pleadings. It is settled law that a cause of action is determined from the Writ of Summons and the Statement of Claim/Statement of Facts, and not from the arguments of Counsel or the description which a party chooses to give to his claim. Counsel cited the case of Opia v. I.N.E.C. (2014) 7 NWLR (Pt. 1407) 431; Abubakar v. B.O.A.P. Ltd. (2007) 18 NWLR (Pt. 1066) 319

Counsel maintained that in the instant case, a holistic reading of the Claimant's Statement of Facts leaves no room for doubt that the substance of the action is a claim founded on alleged negligence, breach of duty of care, failure to provide a safe working environment and personal injury allegedly sustained in the course of employment. The pleadings of the Claimant repeatedly attribute liability to the Defendant's alleged negligence and breach of statutory and common law duties of care.

Counsel submitted that the Court is therefore enjoined to look beyond the mere fact that the parties were in an employment relationship and examine the real complaint disclosed by the pleadings. Once this exercise is undertaken, it becomes evident that the present action falls squarely within the category of actions contemplated under Section 9(1) and (2) of the Limitation Law of Lagos State, namely actions for negligence and breach of duty resulting in personal injury. Having established that the cause of action accrued on 22nd July, 2012 and that this suit was commenced on 22nd December, 2023, approximately eleven (11) years and five (5) months thereafter, the inevitable legal consequence is that the action is statute-barred.

Counsel submitted that the law is settled that where a statute prescribes a period within which action must be commenced, any action instituted outside that prescribed period becomes incompetent and unenforceable. The Court is thereby deprived of the jurisdiction to entertain the matter regardless of the perceived merits of the claim. Counsel referred the Court to the case of Besong v. Ochinke (2023) 7 NWLR (Pt. 1884) 545.

Learned counsel submitted that in the instant case, the cause of action of the Claimant, as disclosed in his Statement of Facts, arose from an accident which occurred on 22nd July, 2012. By virtue of Section 9(2) of the Limitation Law of Lagos State, any action founded on negligence, breach of duty or personal injury ought to have been commenced within three (3) years from the accrual of the cause of action. The present suit, having been instituted over eleven (11) years after the alleged injury, falls hopelessly outside the statutory limitation period. Accordingly, the Claimant's right of action, right of enforcement and right to judicial relief have become extinguished by operation of law. What remains is merely a bare cause of action devoid of legal enforceability. Counsel therefore urged the Court to hold that this action is statute-barred, that this Honourable Court lacks the requisite jurisdiction to entertain same, and consequently dismiss the suit in its entirety.

Learned counsel submitted that on  ccontinuing injury, in response to paragraphs 4.14 – 4.17 of the Claimant’s Final Written Address, the Claimant, in a further attempt to escape the clear provisions of Section 9(1) and (2) of the Limitation Law of Lagos State, contended that because he suffers an injury arising from the accident of 22nd July, 2012, the injury constitutes a continuing injury and therefore time has not begun to run against his action.

Counsel submitted that the argument is legally misconceived and unsupported by established authorities. The law has consistently drawn a clear distinction between “a completed wrongful act whose consequences continue to be felt” and “a continuing wrongful act which remains ongoing and continues to generate fresh causes of action”. It is only the latter situation that can suspend the operation of a limitation statute. The mere persistence of the consequences of a completed act does not constitute a continuing injury in law. Counsel referred the Court to the case of Incorporated Trustees of Heda Resource Centre v. A-G of the Federation & Ors (2025) LPELR-82024(CA)

Learned counsel submitted that in the instant case, the Statement of Facts leaves no room for speculation as to when the alleged wrong occurred. Paragraphs 13, 14, 15 and 16 of the Statement of Facts disclose that the accident allegedly occurred on 22nd July, 2012 aboard the Defendant's vessel. There are neither facts nor evidence indicating that the Defendant continued committing any wrongful act against the Claimant after the accident occurred. Rather, the entirety of the Claimant's case is founded on a single, completed occurrence, namely the workplace accident of 22^nd July, 2012 and the injury complained of is merely the unfortunate consequence of that completed event.

 

Counsel therefore submitted that the cause of action accrued immediately the accident occurred and the alleged injury was sustained. Time began to run from that date and not from the date when the consequences (if any) of the injury continued to be experienced by the Claimant. Counsel contended that to hold otherwise would mean that every personal injury claim would become immune from limitation statutes for the lifetime of the injured person. Such an interpretation if applied, would defeat the very purpose of limitation laws and render Section 9 of the Limitation Law of Lagos State otiose.

It is the submission of counsel that the reliance by the Claimant on the doctrine of continuing injury is wholly misplaced. The alleged negligence, if any, was complete on 22nd July, 2012. The injury complained of is merely the continuing effect of that completed act and not a continuing legal injury capable of postponing the operation of the limitation statute.

Counsel submitted that on the alleged breach of Employee Handbook, in reply to paragraphs 4.26 – 4.38 of the Claimant's Final Written Address, that the Claimant's contention that the Defendant breached Clause 9(iv) of the Employee Handbook is wholly misconceived. The entire argument proceeds on the erroneous assumption that because the Handbook requires the Defendant to bear the cost of medical treatment arising from qualifying workplace accidents, the Defendant is thereby precluded from discharging that obligation through insurance or from subsequently recovering from the insurance company the sums it expended in fulfilling that obligation. Neither the Employee Handbook nor the settled principles of insurance law support such a proposition.

 

Counsel submitted that Clause 9(iv) merely imposes on the Defendant the responsibility of ensuring that the cost of treatment is borne by the Company. Accordingly, once the Defendant ensured that the Claimant received prompt medical treatment at no personal expense to him, its contractual obligation under the Handbook was fully discharged. Whether the Defendant met that obligation directly or through an insurance arrangement procured for the benefit of its workforce is entirely a matter between the Defendant and the insurance company and does not derogate from the Claimant's contractual entitlement.

 

Counsel contended that the evidence before this Honourable Court is uncontroverted that immediately after the unfortunate incident, the Defendant ensured that the Claimant received emergency medical treatment in Cameroon, transferred him to Nigeria for continued specialist care, and settled the medical expenses incurred in the course of that treatment. The Claimant neither paid nor was required to contribute towards those expenses. Having discharged its obligation in the first instance, the Defendant was entitled, under the insurance policy it had procured and maintained at its own expense, to seek reimbursement from its insurer for the costs it had incurred.

Counsel submitted that the entitlement of the Defendant is firmly rooted in the settled doctrine of subrogation, which is an incident of every contract of indemnity. The doctrine recognizes that where a party has discharged a loss covered by an insurance policy, the insurer is obligated to indemnify the party in accordance with the policy, and the receipt of such reimbursement does not create any additional right in favour of a party who neither procured the policy nor sustained the financial loss in question. Counsel adopts the submissions in paragraphs 5.22 – 5.32 of the Defendant's Final Written Address and commend the decisions in NICON v. Power & Industrial Engineering Co. Ltd. (1986) LPELR-1965(SC); Wortheplus Ltd. v. Oxygen Healthcare Ltd. & Ors. (2021) LPELR-55871(CA); and Castellain v. Preston (1883) 11 Q.B.D. 380.

Counsel further contended that it follows that the reimbursement received by the Defendant from the insurance company was not a deduction from the Claimant's entitlement, nor did it amount to the Defendant shifting its contractual obligation onto the Claimant. Rather, it was the lawful recovery by the Defendant of expenses which it had already incurred in performing its obligation under Clause 9(iv). From the foregoing, it is evident that the interpretation of Clause 9(iv) advanced by the Claimant does not reflect the proper construction of the provision. It would mean that an employer who prudently procures insurance to cover workplace accidents forfeits its right to reimbursement merely because it fulfilled its contractual obligation to provide medical treatment through a third-party arrangement. Such an interpretation would undermine the commercial purpose of insurance and is unsupported by either the Employee Handbook or settled principles of insurance law.

Counsel submitted that assuming without conceding that Clause 9(iv) is material to the present dispute, the Claimant has equally ignored the express qualification contained therein. The Defendant's obligation extends only to accident cases which are not self-inflicted and which qualify under the Employee Compensation Act. The Defendant's pleaded case remains that the accident resulted from the Claimant's own negligence, recklessness and persistent disregard of established safety procedures despite repeated warnings.

Counsel submitted further that without prejudice to the foregoing, the Defendant not only fulfilled but substantially exceeded any obligation that could arguably arise under Clause 9(iv) by ensuring that the Claimant received immediate emergency treatment, specialist medical care, continued remuneration during his recovery, insurance benefits, NSITF compensation, prosthetic support and rehabilitation opportunities. The Claimant's complaint is therefore not that the Defendant failed to provide treatment, but merely that the Defendant subsequently exercised its lawful right to recover from its insurer the expenses it had itself incurred. Counsel therefore urged the Honourable Court to hold that the Defendant's subsequent reimbursement by its insurer, pursuant to the settled doctrine of subrogation and the ordinary incidents of a contract of indemnity, neither diminished the Claimant's contractual rights nor constituted a breach of Clause 9(iv) of the Employee Handbook.

Learned counsel submitted that on negligence, the Claimant repeatedly asserted in paragraphs 6.4 – 6.16 of his Final Written Address that the Defendant failed to provide safety equipment and thereby caused the accident which resulted in his injuries.

Counsel submitted that mere assertion does not constitute proof. The law is settled that negligence is not presumed and cannot be inferred merely because an accident occurred. The burden remains on the Claimant to establish by credible and admissible evidence: the precise duty of care allegedly owed by the Defendant; the particular safety measure allegedly required but not provided; the specific act or omission constituting the alleged breach of duty; and that the accident and resulting injury were caused by such breach and would probably not have occurred had the alleged safety equipment been provided.

1.1.             Counsel further submitted that the evidence of the Claimant falls far short of the legal standard required to establish negligence. It is the law that negligence is never presumed. A party alleging negligence bears the burden of pleading and proving with specificity the acts or omissions complained of and the nexus between such acts and the injury suffered. Counsel cited the case of FBN v. Ekhator (2022) LPELR-59374(CA); Meak Investment Ltd & Anor v. Keystone Bank Plc (2024) LPELR-61895(CA).

Counsel maintained that in the instant case, while the Claimant identified certain items of safety equipment which he alleges were not provided, including a helmet, safety belt and other marine safety equipment/gadgets, he failed to establish by credible evidence the relevance, necessity or applicability of those items to the particular operation being undertaken at the time of the incident. The mere assertion that certain equipment was not provided does not, without more, establish a breach of duty of care.

Counsel submitted that the Claimant failed to demonstrate the causal connection between the alleged absence of the said equipment and the accident which occurred. The Claimant did not lead evidence showing that the provision of a helmet, safety belt or any other identified equipment would have prevented the rope from becoming entangled or stopped his hand from coming into contact with the winch machine. In the absence of such evidence, the allegation of negligence remains speculative and incapable of sustaining a claim for damages.

Counsel further submitted that the law requires more than the identification of an alleged omission by an employer; a Claimant alleging negligence must establish that the omission complained of constituted a breach of the duty of care owed and that such breach was the direct and probable cause of the injury suffered. The Claimant has failed to bridge this evidential gap in the present case.

Counsel submitted that on the contrary, the evidence before the Honourable Court demonstrates that safety equipment and personal protective gear were available onboard the vessel and that the Defendant maintained safety procedures for the protection of its crew members. The evidence of the Defendant further established that crew members were required to comply with applicable safety instructions and procedures in the course of their duties but the Claimant was in the habit of disobeying lawful instructions from his supervisor and established protocols.

Counsel submitted further that the Claimant has not rebutted this evidence with any technical, expert or documentary evidence establishing the standard safety measures applicable to the operation of the winch machine or demonstrating that the alleged absence of any particular equipment fell below the standard reasonably expected of an employer operating a fishing vessel in the circumstances. The mere occurrence of an accident does not, without more, establish negligence on the part of an employer. An employer is not an insurer of the absolute safety of its employees. The law only requires the employer to exercise reasonable care in the circumstances.

Counsel maintained that the evidence before the Court demonstrates that the Defendant discharged its obligation by maintaining safety measures onboard the vessel and, following the unfortunate incident, ensuring that the Claimant received prompt medical attention, continued support, insurance benefits and rehabilitation assistance.

Counsel contended that having failed to establish that the alleged non-provision of the identified equipment amounted to a breach of duty of care or that such alleged breach caused or contributed to the accident, the Claimant’s claim founded on negligence must fail. Counsel urged the Court to hold that the Claimant has failed to prove negligence against the Defendant and to dismiss the claim in its entirety.

DECISION OF THE COURT

I have carefully gone through the processes filed, and also listened to the evidence as well as arguments presented by learned counsel on both sides on the issues for determination formulated by both parties.

In resolving the issue for determination, the Court shall determine Whether this action is statute-barred under Section 9(1) and (2) of the Limitation Law of Lagos State, Cap. L84, Laws of Lagos State, 2004, and, if the action is competent, whether the Claimant has established his entitlement to the reliefs sought.

The Claimant’s case is that he sustained a severe injury resulting in the amputation of his right arm while working aboard the Defendant’s fishing trawler, Shrimpers 22. He alleges that the Defendant failed to provide adequate personal protective equipment and subsequently failed to pay him the full insurance compensation to which he claims entitlement.

The Defendant denies negligence and maintains that it provided adequate safety measures, paid the Claimant’s medical expenses, facilitated his statutory compensation through the Nigeria Social Insurance Trust Fund (NSITF), and lawfully recovered from its insurer the medical expenses it had incurred. The Defendant further contends that the action was commenced outside the statutory limitation period.

 

In resolving issue one of the Defendant’s issue for determination; WHETHER THIS COURT HAS JURISDICTION TO ENTERTAIN THE ACTION, HAVING REGARD TO THE DEFENDANT’S OBJECTION THAT IT IS STATUTE-BARRED.

 

Jurisdiction is fundamental to the adjudicatory authority of a court. The principles governing the competence of a court were stated in Madukolu v. Nkemdilim (1962) 2 SCNLR 341. A court must be properly constituted, the subject matter must fall within its jurisdiction, and the proceedings must have been initiated by due process of law upon fulfilment of applicable conditions precedent.

The Supreme Court has held in the case of Hope Democratic Party V. Mr. Peter Obi & 5 Ors. (2012) 205 LRCN 128 at 133 thus;

‘‘It is trite law that where in the proceedings of a case,

the issue of jurisdiction is raised and challenged, the

court must first and foremost decide on whether it has

jurisdiction before proceeding to decide the case on the

merits. The importance of the issue of jurisdiction had

been over emphasized in numerous decisions of this

court. It is an acceptable view that jurisdiction

forms the foundation of adjudication. A court must first

of all be competent, that is, have jurisdiction before it can

proceed to adjudication. A defect in competence is

extrinsic to adjudication.’’

A limitation objection raises a question of competence where the action was instituted outside the period prescribed by the applicable statute.

 

In determining whether an action is statute-barred, the Court examines the originating process and the statement of facts to ascertain when the cause of action accrued and compares that date with the date the action was instituted.

Having pointed out this, it is germane to begin by knowing what a cause of action means. Cause of actions simply means the fact or facts which established or gives rise to a right of action. It is a factual situation which gives a person a right of judicial relief. According to Black’s Law Dictionary, Nineth Edition at page 251, cause of action was define to means thus:

“A group of operative facts given rise to one or more basis for suing- a factual situation that entitle one person to obtain a remedy in court from another person.”

 

Furthermore, cause of action was described by Supreme Court in the case of AMODU V. DOCTOR AMODE & KWARA STATE COLLEDGE OF TECHNOLOGY (1990) 5 NWLR (pt. 150) 356 at 369 to mean thus:

“All those things necessary to give a right of action whether they are to be done by the plaintiff or a third party…”

 

In a similar vein, the Court of Appeal has this to say on what a cause of action connote in the case of ANOZIA V. A.G LAGOS STATE (2010) 15 NWLR (pt. 1216) 207 at 242, paragraphs G-H where it was held that:-

“The term cause of action denotes a group of operative fact given rise to one or more basis for suing. It is a factual situation that entitles a plaintiff to obtain a remedy in a Court from a Defendant.”

See also the case of ODUNSI V. BAMGBALA (1995) 1 NWLR (pt. 374) 841.

On what Court will consider to determine cause of action, the Court of Appeal further held in the case of ANOZIE V. A.G LAGOS STATE (SUPRA) at page 243 paragraph A-C that:

“It should be reiterated that when determining the issue of cause of action, it is totally irrelevant to consider the merit of the claim. What is important at this stage is to critically examine the averments in the pleadings and see if they disclose any reasonable cause of action or raise some questions fit enough to be decided by a judge…”

See also the case of OGUNSANYA V. DADA (1992) 4 SCNJ 162 at 169.

 

Section 9(1) of the Limitation Law of Lagos State applies to actions claiming damages for negligence, nuisance or breach of duty, whether the duty arises by contract, statute or otherwise, where the damages claimed consist of or include damages in respect of personal injuries.

Section 9(2) prescribes a period of three years from the date the cause of action accrued, subject to any applicable statutory exception.

 

In the present case, the Claimant’s principal allegation is that the Defendant’s failure to provide appropriate safety equipment and maintain adequate safety procedures caused the accident in which he sustained the amputation. The action is therefore, in substance, a claim founded upon alleged negligence and breach of duty resulting in personal injury, notwithstanding that the parties were also in an employment relationship.

 

I have considered the Claimant’s reliance on NRMAFC v. Ajibola Johnson (2019) 2 NWLR (Pt. 1656) 247. That decision concerned the applicability of the Public Officers Protection Act to a contract of service. It does not, without more, establish that every action arising out of employment is exempted from every limitation statute, irrespective of the nature of the claim and the express language of the applicable enactment.

 

The distinction is material. The present objection is founded upon Section 9 of the Lagos State Limitation Law, which expressly addresses claims in negligence and breach of duty involving personal injuries, including duties arising by virtue of contract.

The Claimant also contends that his injury is continuing because the amputation is permanent. I have considered that submission. In law, there is a distinction between a continuing wrongful act and the continuing consequences of an act that was completed at a particular time. The fact that a physical injury is permanent does not, by itself, establish that the act of negligence alleged against the employer continues afresh every day and every now.

On the pleaded facts, the alleged negligent omission culminated in a particular accident aboard the Defendant’s vessel. The permanent loss of the Claimant’s arm is a grave and enduring consequence of that occurrence, but the pleadings, as presently disclosed, do not establish a continuing act of negligence that independently generates a fresh cause of action each day.

I have equally considered the Claimant’s reliance on decisions of the National Industrial Court in which continuing disability was treated as relevant to the application of limitation law. Such decisions must be considered on their particular facts and in the light of the governing statutory provision and applicable superior-court authorities. The existence of a permanent disability cannot automatically dispense with an express statutory limitation period.

The record contains inconsistencies concerning the precise date of the accident and the date on which this action was instituted. The accident is variously stated to have occurred in July or August 2012, while the originating process is described as having been filed in January or December 2023. Those discrepancies should be resolved by reference to the actual originating process and the evidence of the accident.

On either of the principal filing dates stated in the record, however, the action was instituted more than three years after the 2012 accident.

There is no indication in the materials before me that the Claimant obtained leave under any applicable statutory exception to Section 9 or established the material facts necessary to invoke such an exception. The Court cannot presume the existence of an exception merely because the Claimant has suffered a serious and permanent injury.

I therefore find on the facts and statutory provision identified above, that the Claimant’s negligence and personal-injury claims were instituted outside the three-year limitation period prescribed by Section 9(2) of the Limitation Law of Lagos State.

The preliminary objection accordingly succeeds. The action, insofar as it is founded upon the alleged negligence and breach of duty causing the accident and personal injury, is statute-barred.

Having upheld the preliminary objection, the Court must be careful not to proceed as though it possesses jurisdiction to determine the substantive merits of a claim which it has found incompetent. This Court lacks the jurisdiction to entertain this suit.

For the avoidance of doubt, the Defendant’s preliminary objection challenging the competence of this action as statute barred is meritorious and, in this regard, it succeeds. This suit is hereby dismissed. Judgment is entered accordingly.

 

 

 

 

 

….……………………………..

HON. JUSTICE S. A. YELWA

(JUDGE)

 

APPEARANCES:

1.       G.P. Abbeotu Esq.   --       --       --       for the Claimant

 

2.     Chidibere Onuokoro Esq. --       --       for the Defendant