IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 26^th November 2025                                SUIT NO: NICN/ABJ/325/2022

 

Between:

 

1.        Thaddeus Joel Nwajiogoli

2.        Georgina Abamba

3.        Uche Abamba                                                                                             

4.        Anabel Abamba                                                                                          

5.        Abamba Ugochukwu

6.        Abamba Victory                                                                                          Claimants

7.        Abamba Emmanuel

8.        Onyinyechi Abamba

9.        Favour Abamba

10.  Charles Abamba

(5^th – 10^th Claimants suing through their next

friend Thaddeus Joel Nwajiogoli for and on behalf

of the Estate of Charles Abamba (deceased) )

 

And

 

Gilmor Engineering Nigeria Limited                                                                  Defendant

                                      

Representation:

B. O. Nafagha for the Claimants

Benjamin Ogbaini, with him, F. O. Ezema for the Defendant 

 

   JUDGMENT

Charles Abamba, now deceased, was an employee of the Defendant. He died on the 17^th day of August 2022 as a result of the injuries he sustained in an accident which occurred while working for the defendant. The 1^st claimant was the elder brother of the deceased while the 2^nd and 3^rd claimants were the wives of the deceased. The 4^th to 10^th claimants were the children of the deceased. The claimants commenced this suit vide a Complaint filed on 24^th October 2022. In their further amended statement of facts filed on 9^th May 2024, but deemed filed on 30^th September 2025, the claimant’s sought the following claims against the defendant:

1.        The sum of N500,000,000 (Five Hundred Million Naira) only as damages for the negligence of the Defendant which led to the death of Charles Abamba on the 17^th day of August 2022.

2.        The sum of N200,000,000 (Two Hundred Million Naira) only as Exemplary Damages resulting from the careless manner the Medical Personnel of the Defendant handled the victim of the accident which led to his death.

3.        The sum of N500,000 (Five Hundred Thousand Naira) only as cost of litigation.

 

CASE OF THE CLAIMANTS:

The evidence in proof of the above claims was given by the 1^st claimant as the CW.  He said late Charles Abamba was employed by the Defendant as a welder in 2011 and he died on 17^th August 2022. Upon the death of Charles Abamba, the community appointed him as the guardian to the 5^th to 10^th Claimants according to Ukani custom and tradition while the 3^rd and 4^th claimants were granted Letter of Administration over the Estate of Charles Abamba by the High Court of the FCT on 2^nd March 2023. CW1 testified further that on 17^th August 2022, he received a distress call that Charles Abamba had an accident and was being rushed to the Gwagwalada Specialist Hospital. He and the 3^rd claimant rushed to Gwagwalada Specialist Hospital and on getting there they discovered that Charles Abamba was already dead. He was among the delegation sent by the family to the office of the Defendant to verify the cause of death of Charles Abamba. They found out the following facts: that on 17^th August 2022 about 2pm, Charles Abamba was asked by an officer of the Defendant in the defendant’s office at Kubwa Express Road, Abuja, to climb a fuel tanker to carry out welding work; that in the course of the welding, the fuel tanker exploded and Charles Abamba was blown into the air and crashed on top of irons in the yard; that Charles Abamba was fatally injured and was bleeding profusely; that rather than rush Charles Abamba to nearby Gwarinpa or National Hospital for emergency attention, he was taken to Gwagwalada Specialist Hospital, which was a journey of more than an hour; that the Defendant’s medical doctor came to the scene more than forty minutes after the accident while Charles Abamba was bleeding profusely; that the doctor was not competent enough to handle the emergency situation and he was confused and never knew  what to do. CW stated that from what happened, the Defendant did not place adequate value on the life of Charles Abamba and proceeded to give the particulars of the negligence of the defendant as follows:

i.          Charles Abamba was not to have been instructed to go and weld a pressured fuel tanker under intense heat.

ii.         There were no safety measures to prevent Charles Abamba from being blown into the air while carrying out the work.

iii.       The Defendant did not provide a safe working environment for the         Charles Abamba.

iv.       Proper First Aid was not provided for the safety of Charles Abamba.

v.         The Medical Personnel of the Defendant ought to have taken Charles Abamba to nearby Gwarimpa or National Hospital where he would have had immediate medical attention.

 

CW further stated that as a result of the death of Charles Abamba, his family has been plunged into a life of extreme hardship as the young children will find it hard to cope with life especially in the area of their education. His family briefed a lawyer who charged them N500,000 and they made part payment of N300,000.

 

In the further evidence of CW, he said when the family of Charles Abamba appointed him as the guardian of the 5^th to the 10^th Claimants according to Ukani Custom and tradition through oral resolution, the family also appointed Friday Ugbeh, a Chartered Accountant working with Salini Company Limited and Chucks Osaimeke, a Construction Horticulturist, to go with him to the office of the Defendant and to introduce him to the Defendant. The three of them went to the Defendant's office and it was on this account the defendant started dealing with him. The defendant paid the sum of N240,000 for the burial expenses and the sum of N59,760 as the August 2022 salary of Charles Abamba to him. A part from these payments, the family has not received any welfare package from the Defendant. The family is not aware of the sum of N832,000,00 paid to staff Union which is the internal arrangement of Defendant. CW also said it is not correct that it is only the Abuja Teaching Hospital that is the principal medical facility for the treatment and management of serious burns in the FCT. National Hospital and Gwarinpa General Hospital have orthopedic departments. The National Hospital parades the best Orthopedic Surgeons in Nigeria who are responsible for the treatment of burns and emergency accident victims. The Defendant opted for Gwagwalada Specialist Hospital because it is cheaper. If there were adequate personnel/workers supervision in the performance of their duties on the part of the Defendant, Charles Abamba will not climb a Diesel Tanker with a welding machine belonging to the Defendant if he was not instructed and the welding machine was not made available to him. Charles Abamba is a very peaceful and disciplined person. Charles Abamba couldn't have worked for 11 years with the Defendant if he was a stubborn and difficult staff.

 

CW1 tendered some documents in evidence which were admitted in evidence and marked Exhibits T, T1 and T2.

 

DEFENDANT’S DEFENCE

In defense of the suit, the defendant filed a statement of defence on 30^th June 2023. The defendant also called a witness who is one Friday Emegha, a staff of the defendant and the Site Personnel Officer at the main yard of the defendant where the accident involving Charles Abamba occurred. The witness, as DW, said in the morning of 17^th August 2022, he was in the office when he heard the sound of an explosion. He outside the office to know what happened and he saw the head driver order a driver to move the defendant’s ambulance to the scene of the accident. When he got to the scene, he met the sectional people who helped the nurse rush the victims, Charles Abamba and Mr. Julius Abuo, inside the ambulance alive and the victims were taken to the defendant’s site clinic. The site doctor and matron immediately proceeded to administer first aid to the accident victims at the site clinic, after which the victims were taken to Maryland Hospital at Kado, which is the defendant’s mother hospital, accompanied by the clinic matron. After the victims were taken to the hospital, he sent a message to Charles Abamba's uncle, that is the 1^st Claimant, to intimate him of what happened and he also sent the matron's mobile phone number to the 1^st claimant for more information. DW said he was following up with the Matron from the mother hospital, where the victims were given first aid, to when they commenced treatment at the University of Abuja Teaching Hospital (Specialist Hospital), Gwagwalada. About two hours after they got to the hospital, he was told that Charles Abamba is dead.

 

The next day, being 18^th August 2022, the 1^st Claimant and some of his Village people came to the defendant’s Main Yard and were informed that the company management had already sent a team of delegates to see the family of late Charles Abamba. During the visit, the 1^st Claimant and his companions were shown the scene of the accident where they confirmed that the late Charles Abamba was not welding but cutting a bolt. This fact was verified and confirmed by the 1^st Claimant. A team of the company management paid a condolence visit to the family of the late Charles Abamba, including DW. On 22^nd August 2022, another meeting was held between the defendant’s management team and the family of late Charles Abamba. The death benefit and entitlements of the late Charles Abamba and his burial were discussed. Both parties agreed verbally on the terms and conditions discussed at the meeting. The management made provisions for the burial by paying for the mortuary bills, coffin, coaster bus to convey the family, ambulance for the deceased, and other bills associated with the burial.

 

The defendant always takes the safety and welfare of staff very seriously and does not discriminate between Nigerian workers and expatriates. The company provides safety equipment and gadgets for every member of staff, including Charles Abamba, such as raincoats, safety boots, hand gloves, googles, helmets, reflector jackets, strap-on restrainer and others. The company also has a Health, Safety and Environment (HSE) officer to ensure that all safety rules and regulations are always complied with in all its sites and offices. The company has never been negligent in the way it deals with the safety, welfare and wellbeing of any of its staff and ensures that it provides a safe working environment for its workers. The company did everything necessary and possible to save the life of Charles Abamba.

 

In his further evidence, DW said in the Engagement Card and Revalidation of Next of Kin Form submitted by Charles Abamba when he was alive, he appointed Anabel Abamba as his next of kin. The Defendant has medical facilities and safety equipment in all its sites like a Clinic, ambulances, fire trucks and fire extinguishers and also provides a lot of safety kits like safety boots, hand gloves, welding goggles, face masks, spray painter masks, ear plugs, restrainer straps and ropes for all its staff without discrimination; and even though the use of the safety kits and equipment are compulsory, some staff still deliberately dodge or refuse to use it, which was what happened in this case. The Defendant has a very qualified and well-trained doctor and nurse in the site office to attend to the medical needs of staff and they were the ones that provided first aid when the accident in this case occurred. They also issued a medical report of the accident to the Defendant. The Defendant paid all the benefits and entitlements of late Charles Abamba when he died through his zenith bank account in the sum of N59,760. The sums of N240,000.00 and N59,760.00 were paid to the 1^st Claimant. Another sum of N418,000 was paid in addition to the sum of N832,000 paid for the burial expenses.

 

DW tendered some documents in evidence which were admitted in evidence and marked Exhibits F, F1, F2, F3, F4 and F5.

 

FINAL WRITTEN ADDRESSES

The Defendant’s Final Written Address was filed on the 29^th day of April, 2024. A sole issue was submitted for the Court’s determination. I have considered and evaluated all the submissions and arguments canvassed in the said Final Written Address of the Defendant. I do not see the need to rehash their contents herein. However necessary reference will be made to them in the course of this judgment.

 

The Claimants Final Written Address was filed on the 9^th day of May 2024. Four issues were submitted for the court’s determination. I have thoroughly considered and evaluated all the submissions and arguments canvassed in the said Final Written Address of the Claimants. I do not see any need to rehash the contents herein. However necessary reference will be made to them in the course of this judgment.

 

DECISION

I have considered the evidence adduced by the parties I have also considered the submissions made in the final written addresses of the parties. The issue which arose in this suit for determination is whether the claimants have proved the claims sought against the defendant.

 

It is not in dispute that Charles Abamba was an employee of the defendant. It is also not also in dispute that he died on 17^th day of August 2022 as a result of the injuries he sustained from an accident which occurred in the premises of the defendant while he was working for the defendant. I also did not find any serious dispute on the fact that the 2^nd to 10^th claimants are the dependants of Charles Abamba, being the wives and children of Charles Abamba. Because Charles Abamba died as a result of an accident while performing his duties for the defendant, the claimants brought this suit against the defendant seeking to be paid the sum of N500,000,000 as damages for the negligence of the Defendant which led to the death of Charles Abamba and another sum of N200,000,000 as exemplary damages for the careless manner the medical personnel of the Defendant handled Charles Abamba treatment which led to his death. See reliefs 1 and 2 of the further amended statement of facts. From these claims, it is obvious that the claimants’ claims are founded on the tort of negligence. The claimants have alleged the defendant to have been negligent as to the cause of the accident; in the treatment of Charles Abamba after the accident and in the death of Charles Abamba. This fact was more specifically pleaded by the claimants in paragraph 12 of the further amended statement of facts where the claimants pleaded as follows:

           

            PARTICULARS OF NEGLIGENCE

i.          The deceased was not to have been instructed to go and weld a pressured fuel tanker under intense heat.

ii.        There were no safety measures to prevent the deceased from being blown into the air while carrying out the work.

            iii.       The Defendant did not provide a safe working environment                                          for the deceased.

iv.       Proper First Aid was not provided for the safety of deceased.

v.       The Medical Personnel of the Defendant ought to have taken the deceased to nearby Gwarimpa or National Hospital where he would have had immediate medical attention.

 

It is a settled principle in law that in an employment relationship between an employer and an employee, the employer owes a duty of care to its employees. The employer is always under a duty to take reasonable care for the safety and health of the employee and where an employer fails or was negligent in its duty of care to the employee resulting in injury to the person of the employee, the employer will be liable in damages to the affected employee. See ROYAL ADE NIGERIA LIMITED vs. N.O.C.M. CO. PLC (2004) 8 NWLR (Pt. 874) 206. Accordingly, to succeed in a claim for damages for negligence in workplace accident, the employee has the burden to plead and prove that the defendant owes him a duty of care and that he has suffered damage in consequence of the defendant's breach of that duty of care towards him. See IYERE vs. BENDEL FEED AND FLOUR MILL LTD (2009) All FWLR (Pt. 453) 1217 at 1244; IGHOSEWE vs. DELTA STEEL COMPANY LTD (2008) All FWLR (Pt. 410) 741 at 757; IGHRERINIOVO vs. S.C.C. (NIG.) LTD (2013) 10 NWLR (Pt. 1361) 139.

 

From the evidence adduced by the parties, it is not in dispute that Charles Abamba had an accident while working for the defendant on 17^th August 2022 and he sustained injuries in that accident which led to his death. The defendant, as the employer of Charles Abamba, owes a duty of care to Charles Abamba to ensure his safety while performing his duties. The issue in dispute in this suit is whether the accident, from which Charles Abamba sustained the injury which resulted to his death, was caused by the negligence of the defendant or the defendant’s breach of its duty of care to Charles Abamba.

 

The position of the law is that where a claimant pleads and relies on negligence by conduct or action of a defendant which caused the accident in question, he must prove with cogent evidence the conduct or action of the defendant which caused the accident and the circumstances of the occurrence giving rise to the breach of a duty of care. In other words, the onus of proving the negligence of the defendant is on the claimant who alleges negligence and it is only then that the burden shifts to the defendants to adduce evidence to disprove the allegation of negligence. In U.T.B. (NIG.) LTD vs. OZOEMENA (2007) 3 NWLR (Pt. 1022) 448 at 465, the Supreme Court held thus:

            “The onus of proving negligence is on the plaintiff who alleges it; and unless and until that is proved, the onus of proof does not shift. In other words, where a plaintiff pleads and relies on negligence by conduct or action of the defendant, the plaintiff must prove by evidence the conduct or action and the circumstance of its occurrence, which gave rise to the breach of the duty of care owed the plaintiff. It is only after this that the burden shifts to the defendant to adduce evidence to challenge negligence on his part.”

 

In ALHAJI OTARU & SONS LTD vs. IDRIS [1999] 6 NWLR [Pt. 606] 330 at 356, the Supreme Court held thus:

                  “The burden of proof of negligence falls upon the plaintiff who alleges negligence. This is because negligence is a question of fact not law and it is the duty on he who asserts to prove it. Failure to prove particulars of negligence pleaded is fatal to the plaintiff’s case.”

 

The Supreme Court expressed the same view in A.B.C. TRANSPORT CO. LTD vs. OMOTOYE (2019) 14 NWLR (Pt. 1692) 197 at 209. See also SAIPEM CONTRACTING CO. (NIG.) LTD. vs. UTA (2024) 8 NWLR (Pt. 1941) 557 at 578. It is also settled law that the fact that an accident occurred is not a conclusive proof of negligence on the part of the defendant. Since negligence is a question of fact, it is not enough to prove only that there was an accident. The claimant must plead and prove the circumstances, nature and extent of the accident and show that the accident was the result of the negligence of the defendant. In NGILARI vs. MOTHERCAT LTD. (1999) 13 NWLR (Pt. 636) 626 at 643, it was held as follows:

                     "Mere occurrence of accident is not proof of negligence. Thus, to succeed in a claim in negligence it is not enough to prove that there was an accident. The plaintiff must prove that the accident was as a result of the negligence of the defendant. Therefore, the circumstances, nature and extent of the accident must be pleaded and evidence adduced thereon.”

 

In SUSAINAH (TRAWLING VESSEL) vs. ABOGUN (2007) 1 NWLR (Pt. 1016) 456 at 480, it was also held that:

            "A mere accident cannot ground an action for damages. In order to succeed in a claim of negligence, the plaintiff must plead and prove that the accident was as a result of the negligence of the defendant. In doing so, he must plead and prove the particulars of negligence. The said particulars to be pleaded and proved must show the circumstances of the complaint relevant to the case".

 

Thus, for the claimants to be entitled to the damages sought by them, they have the duty to prove by credible evidence that the accident which occurred in the premises of the defendant on 17^th August 2022 involving Charles Abamba and his eventual death from the injuries he sustained in the accident were caused by the negligent acts or omissions of the defendant. The claimants are also expected to prove the circumstances and nature of the accident.

 

The allegations of negligence made by the claimants against the defendant are as pleaded in paragraph 12 of the further amended statement of facts. The evidence adduced by the claimants in proof of these allegation of negligence made against the defendant is the oral evidence of the 1^st claimant. In his evidence, the 1^st claimant said the accident which killed Charles Abamba happened on 17^th August 2022 in the premises of the defendant. He said on that day, he received a call that Charles Abamba had an accident and was being rushed to the Gwagwalada Specialist Hospital. When he and the 3^rd claimant got to Gwagwalada Specialist Hospital, they found Charles Abamba already dead. From the evidence of CW, it is obvious he was not in the premises of the defendant or at the scene of the accident on the day the accident happened. He did not witness the accident or knew that it happened until he was called and informed that Charles Abamba had an accident and was being rushed to Gwagwalada Specialist Hospital. It is also clear from the evidence of CW that he neither saw nor interacted with Charles Abamba alive after the accident. In cross examination by counsel for the defendant, CW said he does not work with the defendant and was not present in the defendant’s yard when the accident occurred. He was called by the Admin Personnel Manager who told him that his brother was involved in a gas explosion. CW also said his late brother did not tell him anything or the cause of the accident as his late brother was already dead when he got to Gwagwalada Specialist Hospital.

 

In defence of the suit, DW said in the morning of 17^th August 2022, he heard the sound of an explosion and when he got to the scene, he saw Charles Abamba and Mr. Julius Abuo, the victims of the accident, being taken alive to the defendant’s site clinic where first aid was administered on the victims after which the victims were taken to Maryland Hospital at Kado. The victims were further taken to the Specialist Hospital Gwagwalada for treatment, where Charles Abamba later died. DW also said during the visit of the 1^st Claimant and his companions to the defendant’s premises, they were shown the scene of the accident where they confirmed that the late Charles Abamba was not welding but cutting a bolt on the diesel tanker when the accident occurred.

 

It is clear, from the evidence of CW, that he was not an employee of the defendant and he was not present when the deceased was given the task he was working on. CW was also not present when the accident occurred and he did not witness what happened after the accident up to when the deceased was taken to Gwagwalada Specialist Hospital. Therefore, CW is not in the position to know what task was given to the deceased or the instructions given to the deceased or the condition of the tanker the deceased was to work on. CW is also not in the position to know the circumstances of the occurrence of the accident. CW is also not in the position to know whether or not there were no safety measures to protect the deceased while carrying out the work. CW is also not in the position to allege that the Defendant did not provide a safe working environment for the deceased or that proper first aid was not provided for the deceased when he had the accident. In view of the fact that CW lacked direct knowledge of the facts constituting the allegation of negligence made against the defendant, the question to ask is ‘how then did CW come about the particulars of negligence contained in his evidence?’

 

What CW said in his evidence is that after the death of Charles Abamba, he and some persons, on behalf of Charles Abamba family, visited the office of the Defendant to verify the cause of death of Charles Abamba. In that visit, they found out that on 17^th August 2022 about 2pm, Charles Abamba was asked by an officer of the Defendant to climb a fuel tanker to carry out welding work. In the course of the welding, the fuel tanker exploded and Charles Abamba was blown into the air and he crashed on top of irons in the yard. Charles Abamba was fatally injured in that accident but rather than rush Charles Abamba to the nearby Gwarinpa or National Hospital for emergency attention, he was taken to Gwagwalada Specialist Hospital, which was a journey of more than an hour. The Defendant’s medical doctor came to the scene more than forty minutes after the accident and the doctor was not competent enough to handle the emergency situation.

 

Now, from what CW said, he only attributed negligence to the defendant with respect to the medical treatment of the deceased after the accident. What CW told the court, other than the fact that Charles Abamba was instructed to climb a fuel tanker to carry out welding work, did not include any imputation of negligence on the part of the defendant for the occurrence of the accident. In addition, CW repeated the particulars of negligence in paragraph 12 of his evidence but he never told the court that those particulars were part of the facts he found out during his visit to the defendant’s premises. In other words, besides the fact that CW did not have firsthand knowledge of his allegations in paragraph 12 of his evidence, the allegations were also not part of his findings during the visit to the defendant’s premises. That is to say CW did not relate these particulars of negligence to the facts he said he found out during the visit to the defendant. Thus, the particulars of negligence in paragraph 12 of his evidence are speculative and lacking in probative value. When an allegation of negligence is made against a person, the allegation is not a matter of assumption but of facts which must be proved by credible evidence to establish the allegation.

 

In paragraph 5.14 of the claimants’ final written address, reference was made to the content of the second paragraph of the letter admitted from DW and marked Exhibit F5. Counsel for the claimants submitted that the content of the letter confirms that the defendant admitted negligence to the 1^st claimant when the 1^st claimant visited the defendant. I have read the paragraph of Exhibit F5 under reference and the statement learned counsel for the claimant understands to mean that the defendant admitted negligence. Let me first state that the letter was written by the family of Charles Abamba to the defendant. It was signed by the 1^st claimant. The 1^st claimant wrote in that paragraph that in a meeting held with the defendant on 22^nd August 2022, “both parties agreed that there was element of negligence hence the accident occurred.” There was no mention of who the parties agreed was negligent in causing the accident. Was it the defendant? Was it late Charles Abamba? Clearly, the letter did not state that the defendant was the one who the parties agreed, was negligent in the cause of the accident. Therefore, the letter does not have the effect learned counsel for the claimant tried to put on it.

 

Furthermore, in paragraph 10 of his evidence, CW said the Defendant’s medical doctor who came to the scene of the accident arrived at the scene more than forty minutes after the accident and the doctor was not competent enough to handle the emergency situation. This is one of the facts CW said he found out during his visit to the premises of the defendant after the death of Charles Abamba. CW however failed to mention the person, persons or officials of the defendant who gave him this information during the visit to the premises of the defendant. He did not also identify the said incompetent medical doctor of the defendant. Now, CW was not there when the accident happened and he has also not told the court the source of his information of the facts contained in his evidence. How then does he want the court to believe the truth of his statement in paragraph 10 of his evidence? DW debunked the allegation of CW when he told the court in his evidence that when the accident happened, the site doctor and matron immediately administered first aid to the accident victims at the site clinic, after which the victims were taken to Maryland Hospital. He also said the Defendant has very qualified and well-trained doctor and nurse in the site office to attend to the medical needs of staff and these doctor and nurse were the ones who provided first aid to the deceased when the accident occurred. DW is a staff of the defendant and he was present when the victims were conveyed to the site clinic and given first aid treatment by the defendant’s doctor and matron. From the evidence adduced by the parties, I find the evidence of CW, regarding the accident and treatment of the deceased, as no more than hearsay.

 

Another particular of negligence pleaded by the claimants in paragraph 12 [v] of the further amended statement of facts is that the medical personnel of the Defendant ought to have taken the deceased to nearby Gwarimpa or National Hospital where he would have received immediate medical attention. In his evidence, CW said he received a call on 17^th August 2022 that Charles Abamba had an accident and was being rushed to the Gwagwalada Specialist Hospital. He said Charles Abamba ought to have been taken to the nearby Gwarinpa or National Hospital for emergency attention instead of Gwagwalada Specialist Hospital, which was a journey of more than an hour, where he was taken. CW confirmed that he met Charles Abamba in the Specialist Hospital Gwagwalada but Charles Abamba was already dead when he got there. In his explanation, DW said after the accident, Charles Abamba was first taken to the defendant’s site clinic where first aid was administered on him and then he was taken to Maryland Hospital at Kado, where he was also given treatment. From there, Charles Abamba was taken to the Specialist Hospital Gwagwalada where he was being treated before he died two hours later.

 

It is not in dispute that the deceased was taken to the Specialist Hospital Gwagwalada by the defendant where he eventually died. The complaint of the claimants is that Gwarinpa or National Hospital were closer to the scene of the accident at Kubwa Express Road than Gwagwalada Specialist Hospital to which the deceased was taken and this denied the deceased immediate medical attention. The claimants appear to contend that the distant hospital the deceased was taken to, contributed to his death, and to them, this was an act of negligence on the part of the defendant.

 

The defendant pleaded in paragraphs 7 and 10 of the statement of defence that the claimant was treated in its hospital before he was conveyed alive to Gwagwalada Specialist Hospital. DW mentioned Maryland Hospital as the mother hospital of the defendant where Charles Abamba was treated before he was taken to the Specialist Hospital Gwagwalada. DW also referred to a medical report of the accident issued to the Defendant. I have seen Exhibit F3, a medical report from Maryland Clinic Ltd dated 9^th November 2022 to the defendant. The report reads as follows:

 

            “RE: CHARLES ABAMBA ID: 9165 (LATE)

Reference to the above named, on 17th August, 2022 at about 7:35am there was a reported case of fire accident following an explosion from a diesel tank at the welding section while working on the tank, in which the deceased and one other worker (his foreman) were seriously affected.

 

The deceased sustained severe burns injury and traumatic amputation to the lower limb (Lt) leg. He, along with the other fellow were evacuated from the accident scene and moved to Maryland clinic. Immediate resuscitative measures was given (pressure dressing, elevation of injured part) in order to arrest bleeding.

 

Both of them were then rushed to the University of Abuja Teaching Hospital where both were sure to access immediate good Emergency, ICU, burns and other specialized expert care being a tertiary health institution.

 

Both arrived at the emergency unit of the University of Abuja Teaching hospital alive where they were promptly attended to, however the deceased gave up shortly at the unit and the remains was thereafter deposited at the hospital morgue.”

 

This report was admitted in evidence without objection from the claimants. The content of the report disclose that the deceased was moved from the accident scene to Maryland Clinic by the defendant for treatment; and the Clinic, after administering initial treatments, rushed the deceased to Specialist Hospital Gwagwalada. From the content of the report, the deceased was immediately given treatment at Maryland Clinic who, upon assessing the injury of the deceased, took the decision to take the deceased to the Specialist Hospital Gwagwalada.  The clinic also wrote in the report that the deceased was “sure to access immediate good Emergency, ICU, burns and other specialized expert care” at the Specialist Hospital Gwagwalada, Thus, the movement of the deceased to the Specialist Hospital Gwagwalada was as a result of the medical judgment taken by the Maryland Clinic where the defendant took the deceased for treatment. The defendant, by complying with the professional medical decision or advice of the Maryland Clinic, cannot be accused of being negligent.

 

The deceased was taken to the Specialist Hospital Gwagwalada on the recommendation of Maryland Clinic and with the belief that the deceased will receive specialized treatment at the Specialist Hospital Gwagwalada. Thus, the fact that the deceased was taken to the Specialist Hospital Gwagwalada instead of Gwarinpa or National Hospital is not a matter of negligence. I also find evidence showing that the deceased was given immediate treatment/medical attention upon occurrence of the accident before he was conveyed to the Specialist Hospital Gwagwalada. Let me add that the deceased did not die while on transit to the Specialist Hospital Gwagwalada. He got to the hospital and was receiving treatment before he died. It implies that the distance of the Specialist Hospital Gwagwalada was not the cause of death of Charles Abamba. What even gave the claimants the assurance that the deceased would not have still died if taken to Gwarinpa or National Hospital in view of the severity of his injury as stated in paragraph 2 of Exhibit F3? In my view, the defendant cannot be held liable in negligence simply because the deceased was taken to the Specialist Hospital Gwagwalada.

 

I have examined the evidence adduced by the claimants to prove their allegations of negligence but I find they failed to prove any of the particulars of negligence made against the defendant in paragraph 12 of the further amended statement of facts. The DW said the defendant has never been negligent in the way it deals with the safety, welfare and wellbeing of any of its staff and ensures that it provides a safe working environment for its workers. The defendant provides safety equipment and gadgets for every member of staff, including Charles Abamba, such as raincoats, safety boots, hand gloves, googles, helmets, reflector jackets, strap-on restrainer and others. The defendant also has a Health, Safety and Environment (HSE) officer to ensure that all safety rules and regulations are always complied with in all its sites and offices. The claimants did not call evidence to disprove this evidence of DW.

 

It seems the claimants realized, at the time of close of evidence in this suit, that they will not succeed in their plea of negligence. That was when they decided to further amend the statement of facts to introduce the plea of res ipsa loquitur in paragraph 12 of the statement of facts as alternative to their plea of negligence. In the amendment to paragraph 12, the claimants pleaded thus: “Alternatively, the claimants shall rely on the doctrine of res ipsa loquitur.”

 

Res ipsa loquitur is a latin maxim which means the “things speak for themselves”. The maxim is no more than a rule of evidence affecting the onus of proof. The essence of the doctrine is that where a thing is shown to be under the management of the defendant or his servants and an accident occurs in the process and that accident is such as does not occur in the ordinary course of things if those who are in the management exercise proper care or diligence, in the absence of any explanation by those in the management as to how the accident occurred, the accident is presumed to occur due to lack of care. Thus, negligence is presumed or inferred in such cases to have resulted from the want of care by the persons in the management or their agents or servants. Reliance on the doctrine of res ipsa loquitur is thus a confession by the claimant that he has no direct and affirmative evidence of the negligence complained of against the defendant but that the surrounding circumstances imply such negligence. In relying on res ipsa loquitur, a claimant merely proves the resultant accident and injury and then asks the court to infer therefrom negligence on the part of the defendant. See ROYAL ADE NIG. LTD vs. N.O.C.M. CO. PLC (2004) 8 NWLR (Pt. 874) 206 at 223; JULIUS BERGER (NIG.) PLC vs. OGUNDEHIN (2014) 2 NWLR (Pt. 1391) 388; SHELL PETROLEUM DEVELOPMENT LTD vs. ANARO (2015) 12 NWLR (Pt. 1472) 122.

 

I do not think the plea of res ipsa loqiutur can sustain the claims of the claimants in this case. The principal claims of the claimants in this suit are those in reliefs 1 and 2 of the further amended statement of facts. For the purpose of appreciating the view of the court, I will repeat the claims:

1.     The sum of N500,000,000 (Five Hundred Million Naira) only as damages for the negligence of the Defendant which led to the death of Charles Abamba on 17^th day of August 2022.

2.     The sum of N200,000,000 (Two Hundred Million Naira) only as Exemplary Damages resulting for the careless manner the Medical Personnel of the Defendant handled the victim of the accident which led to his death.

 

These reliefs were claimed specifically on the claimants’ allegation of negligence as stated in the reliefs themselves. The claimants proceeded to plead the particulars of negligence upon which they based the claims. Let me add that the claimants did not ask for alternative reliefs based on the plea of res ipsa loquitur. Without a doubt, the pleadings and the evidence adduced by the claimants disclose that they founded their case wholly on negligence with the particulars which were set out. Although the claimants are permitted to plead res ipsa loquitur in the alternative to particulars of negligence, as they did in this case, but since the claimants’ case is built around the allegation of negligence, which they failed to prove, they can therefore not turn around to rely on the doctrine of res ipsa loquitur. Therefore, the doctrine of res ipsa loquitur will not arise or be applicable in the circumstances of this case.

 

Again, the doctrine of res ipsa loquitur will not apply where the cause of the accident or injury is known and negligence is attributed to the defendant or an individual or group of persons. See JULIUS BERGER (NIG.) PLC. vs. NWAGWU (2006) 12 NWLR (Pt. 995) 518 at 540; ONWUKA vs. OMOGUI (1992) 3 NWLR (Pt. 230) 392 at 415. To rely on the doctrine of res ipsa loquitur, the claimant must have shown that he has no direct or affirmative evidence of the cause of the accident but from the surrounding circumstances of the accident, negligence should be inferred on the part of the defendant. This is not the case here. In his evidence, CW explained how the accident happened. He said Charles Abamba was asked by an officer of the Defendant to climb a fuel tanker to carry out welding work and that in the course of the welding, the fuel tanker exploded and Charles Abamba was blown into the air and he crashed on top of irons in the yard. Charles Abamba was fatally injured and was bleeding profusely. In his particulars of negligence, CW said Charles Abamba ought not to have been instructed to weld a pressured fuel tanker under intense heat. From what CW narrated, the claimants knew the cause of the accident and they attributed the accident to the negligence of the defendant. Since the claimants know the cause of the accident, res ipsa loquitur is no longer applicable.

 

I have carefully considered the evidence adduced in proof of the claims of the claimants but they failed to show that the accident which resulted in the death of Charles Abamba was caused by the negligence of the defendant. The evidence of CW does not have sufficient probative value to sustain the claims of the claimants. Where a claimant fails to prove his case of negligence against the defendant, the defendant cannot be held liable in damages to the claimant, either special or general damages. See AKANBI vs. ALATEDE (NIG.) LTD. (2000) 1 NWLR (Pt. 639) 125 at 148; OSADEBAY vs. IKEJIOFOR (2001) 8 NWLR (Pt. 7I4) 164. Consequently, I hold that the claims of the claimants have not been proved and therefore liable to be dismissed.

 

This suit is dismissed. Parties shall bear their costs.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge