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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- PRESIDING JUDGE

 

DATE: WEDNESDAY 22ND JULY, 2026          SUIT NO: NICN/YEN/25/2021

 

BETWEEN:

 

MR. KURO JASON ORUS     ----------------------                   CLAIMANT

 

AND

 

HYDRODIVE COMPANY LIMITED        ------------------- DEFENDANT

 

JUDGMENT

 

1.1.         The claimant filed this Complaint and Statement of Facts against the Defendant and Shell Petroleum Development Company on the 1st day of November, 2021. With the leave of Court the suit was discontinued against Shell Petroleum Development Company, and the name of the Company was struck out of the suit on the 21st of February, 2022. With the Leave of Court the Claimant filed an Amended Complaint  and Amended Statement of Facts on the 3rd of April, 2024, and claims the following reliefs against the Defendant:

 

(a) A declaration to the effect that it was the injuries sustained by the claimant during the cause (sic) of his work for the defendant on 12th day of February 2016 that led to the loss of the right eye of the claimant.

 

(b) A declaration to the effect that the Claimant is entitled and has right to claim compensation for the injury  sustained in an industrial accident while working for the defendant on the 12th day of February 2016 and also compensation for the eventual permanent loss of the Claimant’s right eye as a result of the said injury.

 

(c)  The sum of Five Hundred and Seventy Three Thousand, Six Hundred Ninety Six Dollars ($573,696) only as compensation (at the current exchange rate at the execution of the judgment sum and with the interest of 12% from the date judgment is delivered till the date judgment sum is liquidated) for the permanent loss of the right eye of the claimant as a result of the industrial accident he had while working for the defendant on the 12th day of February 2016.

 

(d) A declaration that the defendant was negligent for not reporting the accident to the Ministry of Labour and Employment and other appropriate statutory authority as expected of the defendant.

 

(e)  The sum of Eight Million Three Hundred and Sixteen Thousand Naira (N8,316,000.00) only as special damages.

 

(f)    The sum of twenty million naira (N20,000,000) as damages for psychological pain, suffering and emotional trauma.

 

(g) The sum of Three Million, Five Hundred Thousand Naira (N3, 500,000.00) only as cost of litigation.

 

1.2.         The Defendant who filed her Memorandum of Conditional Appearance and Statement of Defence together with other accompanying processes on the 10th of February, 2022 however placed reliance on the Further Amended Statement of Defence filed on the 24th of June, 2024. The Claimant filed a Reply to the Amended Statement of Defence on the 22nd of July, 2024.

 

1.3.         Trial in the suit commended de novo on the 16th day of October, 2024 when the Claimant testified for himself as CW1. The witness identified and adopted his witness statement on oath he made on the 21st of June, 2024 and the additional deposition he made on the 22nd of July, 2024. The following documents were tendered by the Claimant and admitted by the Court:

 

1.     The Professional Diver’s Logbook with particular reference to Part 2 (page 2) --------- exhibit CW1A.

2.     The Solicitor’s cash receipt of Egele & Egele, Daniel Chambers dated 11th October, 2021 ----- exhibit CW1B.

3.     The Charkin Maritime & Offshore Safety Centre Cash Receipt dated 3rd October, 2019 ------- exhibit CW1C.

4.       The Solicitor’s letter of Egele & Egele (Daniel Chambers) dated 13th September, 2021  ------- exhibit CW1D.

5.     The Life Forte Eye Clinic Invoices (3 in number)   ----- exhibit CW1E.

6.     The Federal Medical Centre Yenagoa letter dated 24th March, 2021---- exhibit CW1F.

7.     The Emergency Oxygen Certification Card in the name of the claimant ---- exhibit CW1G.

8.     The BasicPlus Certification Card in the name of the Claimant ------ exhibit CW1H.

9.     The Charkin Maritime & Offshore Safety Centre ID Card ---- exhibit CW1J.

10.             The Certificate of Commercial Diver Training  ------- exhibit CW1K.

11.             The CD plate ----- exhibit CW1L.

12.             The Niger Delta University Teaching Hospital letter dated 21st March, 2022 ------- Exhibit CW1M.

13.             The Hydrodive letter dated 23rd March, 2021 ------- Exhibit CW1N.

14.             The claimant’s letter to the management of Hydrodive Nigeria Limited dated 10th March, 2021 -------- Exhibit CW1P.

15.             The Divers Medical Certificate --------- Exhibit CW1Q.

16.             The Lily Hospitals letter dated 16th of February, 2021 ---- Exhibit CW1R.

17.             The Lily Hospitals Medical Fitness Form for Eye Center dated 21st November, 2019-------- Exhibit CW1S.

18.            The Lily Hospitals Ltd Divers Medical Certificate ---------- Exhibit CW1T.

19.             The Lily Hospitals Divers Medical Certificate examined on 15th January, 2018 -------- exhibit CW1U

20.             The Lily Hospitals Ltd Divers Medical Certificate examined on the 1st of March, 2017 ------------ exhibit CW1V.

21.             The Lily Hospitals Ltd Divers Medical Certificate examined on the 12th November, 2015 ----------- exhibit CW1W.

22.             The Lily Hospitals Ltd letter dated 27th May, 2016 ----- exhibit CW1X.

23.             The Medical Certificate issued by Dr. A. O. Nanna dated 10th February, 2016 ---------- exhibit CW1Y.

24.             The Claimant’s letter dated 24th March, 2021 ------- exhibit CW1Z.

25.             The email from Latifat Osagie to the Claimant dated 13th May, 2016 ---------- exhibit CW1Z1.

The witness (CW1) was cross-examined by the Defendant’s Counsel O. A. Owolabi and discharged on the 16th of October, 2024 without any re-examination.

 

1.4.         The Claimant’s 2nd witness (CW2) testified upon a subpoena on the 22nd of October, 2024. The witness introduced himself as Dr. Opubiri, 1. R. (a Consultant Ophthalmologist at the Niger Delta University Teaching Hospital). He identified and adopted his witness statement on oath filed on the 22nd of October, 2024, and identified exhibit CW1M as the medical report he referred to in paragraph 4 of his deposition. He was then cross-examined by the Defendant’s Counsel O. A. Owolabi before being discharged on the 22nd of October, 2024 without any re-examination.

 

1.5.         The Claimant’s 3rd witness (CW3) also testified upon a subpoena on the 22nd of October, 2024. He introduced himself as Dr. Omaka Okoh Idan, a Chief Consultant Ophthalmologist at the Federal Medical Centre Yenagoa, Bayelsa State. He identified and adopted his witness statement on oath filed on the 22nd day of October, 2024. The witness identified exhibit CW1F as issued by him, and the Medical Report of the Federal Medical Centre Yenagoa dated 23rd February, 2022 was then tendered through him and admitted by the Court as exhibit CW3A.

The witness was cross-examined by the Defendant’s Counsel O. A. Owolabi before he was discharged on the 22nd of October, 2024 without any re-examination. The Claimant then closed his case on the same 22nd of October, 2024.

 

1.6.         The Defendant opened her defence on the 11th of February, 2025 by calling her first witness Alhaja Latifatu Osagie (the Defendant’s Protocol and Logistics Manager) who testified as DW1. She identified and adopted her witness statement on oath filed on the 24th of June, 2024, and the following documents were tendered through the witness and admitted by the Court:

 

1.     The Lily Hospitals Ltd Divers Medical Certificate dated 1st March, 2017 --------- exhibit DW1A (under protest).

2.     The Maritime publication titled, “embattled Diver Kuro speaks on the alteration of his medical certificate” --- exhibit DW1B (under protest).

3.     The employment contract in the name of Jason Kuro --- exhibit DW1C.

4.     The Situation Report on David Gibbs & Jason Kuro (12th February, 2016) ----------- exhibit DW1D.

5.     The Lily Hospitals Ltd letter dated 15th February, 2016 ---- exhibit DW1E.

6.     The Lily Hospitals Ltd letter dated 27th May, 2016 ---- exhibit DW1F.

7.     The Lily Hospitals Ltd Divers Medical Certificate dated 2nd November, 2020  ----- exhibit DW1G.

8.     The email from Victoria Abimbola to HR Dept dated Tuesday 9th November, 2021 ------ exhibit DW1H.

9.     The document titled, “Medically unfit to dive” by Dr. Uduasobor P. dated 2nd November, 2020 -------- exhibit DW1J.

10.             The Divers Medical Certificate titled ‘medically fit’ dated 2nd November, 2020 ------- exhibit DW1K.

11.             The email from Latifatu Osagie to Modupe Oherein dated 6th January, 2021 --------- exhibit DW1L.

12.             The Salary Breakdown January – December, 2016 in the name of Jason Kuro -------- exhibit DW1M.

The witness was cross-examined by the Claimant’s Counsel Emmanuel Sunday Ibironke before she was discharged without any re-examination.

 

1.7.         The Defendant’s second witness (DW2) Dr. Precious Uduasobor testified upon a subpoena on the 26th of March, 2025. He introduced himself as a multi-specialist physician in Diving and Hyperbaric Medicine, Occupational Health Physician and a Specialist Family Physician with special interest in Dietary Medicine. He works with Lily Hospitals Ltd Warri, Delta State. He identified and adopted his witness statement on oath filed on the 26th of March, 2025, before being cross-examined by the Claimant’s Counsel. The witness was re-examined by the Defendant’s Counsel before he was discharged. The Defendant closed her case on the 26th of March, 2025.

 

1.8.         With the conclusion of evidence in the suit, the parties were directed to file their final written addresses. While the Defendant’s Final Written Address was filed on the 26th of May, 2025 but deemed as properly filed and served on the 26th of May, 2025, the Final Written Address of the Claimant was filed on the 22nd of October, 2025, but deemed as properly filed and served on the 22nd of October, 2025. The Defendant filed a Written Reply on Points of Law on the 27th of April, 2026, which was deemed as properly filed and served on the same 27th of April, 2026. These processes were adopted by both Counsel on the 27th of April, 2026, with Emmanuel Sunday Ibironke appearing for the Claimant, and O. A. Owolabi appeared for the Defendant.

 

THE CASE OF THE CLAIMANT:

2.1.    The Claimant pleaded and testified that as a professional diver he was employed by the Defendant sometime in 2016 on the sum of Three Hundred and Thirty Two Dollars ($332) per day which would be put together and paid at the end of the month. That while carrying out his duty on board HD Pioneer on the 12th of February, 2016, he sustained serious industrial injuries to his face and knee which caused permanent damage to his right eye. That while on Shell Petroleum Development Company Forcados Single Buoy Mooring (SBM) change out - Shell Field, Offshore Delta State, he was directed by his superintendent Mr. Dave Gips to cut a 3m length of rope to tie the flange connected to the hose to serve as hold back as there was no hold back. In the course of carrying out the instruction, he suddenly heard a sound and was hit on his face thereby causing him serious injury to his face and leg by the flange which swung due to the amount of pressure suddenly turned on from the engine room to back flush the hose.

 

2.2.    That the accident was not due to his negligence but due to the negligence of the defendant because there was no hold back strap on flange face connecting the flexible hose, and there was no communication from the engine room to the team of about eight persons on the deck to stay clear while turning on the pressure to back flush the flexible hose. That this was captured on the Defendant’s CCTV Camera on or about 4am. He was rushed to the hospital on deck where the doctor made some stitches close to the left region of his eyes to stop the bleeding before being taken to Shell Forcados Clinic, and subsequently flown to Lily Clinic in Warri. That against the advice of the hospital, the defendant whisked him away even in his critical condition in the night and lodged him at Karriot Hotel, Old Refinery Road, Effurun, Warri, Delta State. He had to put a distress call to the Defendant before he was taken back to the hospital the following morning where he was stabilized. He was subsequently discharged from the hospital, and the defendant took care of the medical expenses.

 

2.3.    According to the Claimant, the defendant failed to report the accident to the appropriate authority as statutorily required. It was the Claimant that reported the matter to the Ministry of Labour and Employment which invited the defendant and its retained medical facility to appear before the panel set up by the Ministry. The defendant informed the panel that the accident was not a serious one that would require reporting to the Ministry, and also that the claimant had been paid compensation for the accident, and the defendant’s representative Mrs. Latifat declined to answer further questions from the panel and left the panel room.

 

2.4.    The Claimant states further that, even though cataract was removed from his right eye in 2014 and a lens was inserted as a normal procedure for cataract removal without any complication, there was no further issues with his eyes particularly the right eye. That he also had no issues with his knees because it was the practice of the defendant to carry out periodic medical test on the employees in a hospital retained by the defendant. That on or about the 27th of December 2018 and 21st of November 2019 the medical results or certificates from Lily Hospital Limited disclosed a suspected glaucoma in his right eye, which was subsequently confirmed on or about the 2nd of November 2020 and 16th February 2021 that it was the accident that caused the glaucoma which permanently damaged the right eye. The Lily Hospital Limited then declared him unfit to dive due to the loss of his eye, and despite series of letters to the defendant for compensation for the loss of his right eye which is a permanent disability, there has not been any positive response from the defendant.

 

2.5.    He alleged further that, he has received threat calls from known and unknown persons including one Mr. Julius Ugwala who warned him not to demand for compensation from the defendant which he was able to record the conversation. That despite the demand letter from his Solicitors for compensation the defendant has not responded, and he has been having excruciating pain on both his knee and eye regions. That if not for the accident, he was supposed to work till 61 years of age which is the standard retirement age for divers. He pleads the particulars of special damages as follows:

 

 

Certificates, tests and other documents acquired for the purpose of diving:

 

i.                   IMCA Class II       = N6, 500,000.00

ii.                 Opito Bosiet          = N550, 000.00

iii.              Oxygen Administration = N75, 000.00

iv.              Medical First Aid, CPR = N75, 000.00

v.                 CA – EBS                    = N50, 000.00

vi.              Yellow Fever Card    = N15, 000.00

vii.            Medical Certificate 2020   = N90, 000.00

                                          = N7, 355,000.00

Medical Bills

 

i.                   Consultation fee         = N250, 000.00

ii.                 6 photochromic glasses since the accident at 45,000 each  = N270,000.00

Eye drops:

a.      Maxitrol 3500 x 7 in 2 years   = N21,000.00

b.     Salacyn 3000 x 6 for a year    = N18, 000.00

c.      Xalatan 3000 x 10 for a year for 2 years and 6 months   = N72, 000.00

d.     Cosopt 5000 x 12 a year for 2 years and 6 months  = N150, 000.00

e.      Anti glaucoma Laxat 5000 x 12 for 1 year and 6 months   = N90, 000.00

 

Traditional Massage for the leg:

 

6 times in 3 years   15,000 x 6   = N90, 000.00

                                                          = N961, 000.00

Sum total = N7, 355,000.00 + N961, 000 = N8, 316, 000.00.

 

2.6.         That he engaged the services of his Counsel who charged him the sum of Three Million, Five Hundred Thousand Naira (N3, 500, 000.00) as professional fees, and also Twenty Thousand Naira (N20, 000.00) as appearance fee per appearance in court. He also claims the value of his right eye in the sum of Five Hundred and Seventy Three Thousand, Six Hundred and Ninety Six Dollars ($573, 696) as particularized as follows:

$332 as daily pay x 30 days for a month = $9, 960

$9, 960 x 12 months for a year = $119, 520

$119, 520 X 16 years he would have worked but for the accident = $1, 912, 320.

30% of $1, 912, 320 = $573, 696.

DEFENDANT’S CASE:

 

3.1.         The Defendant avers that the Claimant was employed as an “IMCA AIR DIVER’ on the 13th of January 2015 with a start date of 7th February, 2016 on a daily base rate of US$332.00 (Three Hundred and Thirty Two Dollars) per day for 60 days. That even though the claimant was involved in an accident on the deck of the HD Pioneer which caused a laceration to his left eye and injury to his left knee, the injuries were however promptly and properly treated at the Defendant’s accredited Hospital by qualified medical personnel at the defendant’s expense. That the accident on the 12th of February, 2016 did not affect the claimant’s right eye, and the affected left eye was stitched at the hospital on board the HD Pioneer before the claimant was transferred to the defendant’s accredited medical facility (Lily Clinic) in Warri for further assessment and treatment. He was moved from the medical facility to a near-by Karriot Hotel with the approval of the medical personnel when the injuries he suffered were adjudged as non-serious, and considered fit to be discharged and treated as an out-patient. When he complained of body pains, the defendant immediately made arrangements and took him to the medical facility for further assessment and treatment the following morning.

 

3.2.         According to the defendant, it had no obligation to report the claimant’s accident to any statutory body because the claimant did not suffer any disabling injury as a result of the accident. That some of the medical verification enquiries by the defendant after the claimant’s representation about his health revealed that the claimant had a history of problems with his right eye prior to the accident which occurred on the 12th of February, 2016. That after the claimant fully recuperated he was re-absorbed on the 1st of June, 2016 and deployed to work at the Defendant’s Brawal Jetty facility where he worked for about fifteen months. He was again re-engaged as an offshore diver on the 1st of October, 2017, and that between 1st October, 2017 and 2nd September 2020 the claimant was deployed by the defendant to several projects where his fitness to work was not in question and he never complained of any injuries or requested for any medical treatment as a result of the incident of 12th February, 2016.

 

3.3.         That on the 2nd of November, 2020 the claimant submitted a Divers Medical Certificate as required by the IMCA Guidelines which purportedly certified him fit to dive, but when the defendant sent the medical certificate for verification as part of its internal routine, it was discovered that the certificate was forged. The verification report revealed that the claimant had been actually declared as “unfit to dive” but he forged the certificate with the intention to deceive the defendant. He was then notified of the defendant’s intention not to renew the contract. That the medical report submitted by the claimant does not indicate that the claimant’s glaucoma is attributable to the incident of 2016, and subsequent information reveled that his vision in the left eye which was the eye impacted during the accident was perfect and remained excellent over the years. The information further revealed that the claimant had previously undertaken a cataract removal surgery on his right eye before the incident of 12th February, 2016, and due to complications from the surgery, an artificial lens was inserted into his right eye.

 

3.4.         That the defendant is not legally obligated to pay any form of compensation for the loss of the claimant’s right eye because the loss is not attributable to a workplace injury and does not qualify as a workman compensation claim. He was paid his one month salary as compensation for the period he was recuperating from the injuries sustained on the 12th of February 2016, and also engaged for alternative purposes at the defendant’s facility at Brawal jetty and kept employed until he was certified as medically fit to dive offshore. The defendant did not authorize anybody to call the claimant and that it did not threaten the claimant either directly or indirectly; and also that all the bills for the treatment of the claimant were paid by the defendant.

 

DEFENDANT’S SUBMISSIONS.

 

4.1.         The learned Counsel to the Defendant identified these four (4) Issues for the determination of the Court:

 

a.     Whether the permanent loss of vision in the Claimant’s right eye is a direct consequence of an injury sustained on the 12th day of February 2016 whilst working for the Defendant.

 

b.     Whether the Claimant is entitled to an award of damages against the Defendant as compensation for the permanent loss of vision in his right eye.

 

c.      Whether the Defendant had an obligation to report the accident that occurred aboard its vessel on the 12th day of February 2016 to the Ministry of Labour and Employment or to any other statutory authority.

 

d.     Whether the Defendant (sic) has established that he is entitled to any of the relief(s) couched as relief(s) (e) to (g) on the Complaint and Statement of Facts.

 

4.2.         It is was submitted on Issue one (1) that, the Claimant’s contention that the loss of vision in his right eye was as a result of the accident on board the HD Pioneer is contrived and totally untenable because there is evidence that the vision in his left eye remains perfect, and he had a history of serious medical problems with his right eye, i.e. cataract and glaucoma. That the claimant who had pleaded in paragraph 14 of the Statement of Facts filed on the 1st of November, 2021 that before the industrial accident he had no medical challenge to his eyes and knees amended his pleadings in a number of times after seeing the Defendant’s Statement of Defence with a view to deceiving the Court to grant the reliefs in the suit. That the Court can rely on its records such as documents, transcripts and other materials that are part of the case file in order to make a fair and informed judgment. See Abraham V. Olurunfemi (1991) 1 NWLR (Pt. 165) 53.

 

4.3.         It was further posited that, since CW1 informed the Court that he did not have a history of medical problems with his right eye only to later recant during cross-examination that he had undergone a cataract removal surgery from the right eye, his credibility has been dented, and the Court should treat him as an unreliable witness. That having been discredited, the Court should not attach any weigh to any other form of evidence which the Claimant adduced during trial. See Ukaegbu V. Nwolo (2009) 3 NWLR (Pt. 1127), Oguntayo and Ors V. Adebutu and Ors (1997) 12 NWLR (Pt. 531)83 at 93, Daggash V. Bulama (2004) 14 NWLR (Pt. 892) and Ajose V. Federal Republic of Nigeria (2011) 6 NWLR (Pt. 1244) 476.

 

4.4.         With respect to the testimonies of CW2 and CW3, it was submitted that exhibit CW2A tendered by CW2 is inadmissible under section 83(3) of the Evidence Act because the said Medical Report which mirrors CW2’s evidence was made in anticipation of the instant litigation. Let me clarify that the medical report dated 23rd February, 2022 was tendered by CW3 and admitted by the Court as CW3A. CW2 did not tender any document but only identified exhibit CW1M dated 21st March, 2022 as the medical report he referred to at paragraph 4 of his deposition. If the defendant’s objection is on the medical report dated 23rd of February, 2022, then the document being objected to is exhibit CW3A and not exhibit CW2A as cited by the defendant. That while the Originating processes in this suit were filed on the 1st of November, 2021, exhibit CW3A was however prepared and issued on the 23rd of February, 2022 which is over two months after the suit was filed. That CW3 is within the meaning of “an interested person” as described in Section 83(3) of the Evidence Act because he carried out the surgery on the claimant’s right eye for which he has completely lost vision. That CW3 attributed the loss of vision in the right eye to the accident that didn’t impact the said right eye only tries to draw attention away from the surgery that he carried out on the claimant’s impacted eye. That a document made in anticipation of litigation or during the pendency of a suit by an interested person is inadmissible, relying on the case of Atiku V. PDP – CCA/PEPC/05/2023. That since CW3 was involved in the surgery, he cannot be treated as an independent witness but he is a tainted witness because he has personal interest in the outcome of the suit, relying on the cases of Cpl. Wafa Aminu V. State (2020) 6 NWLR (Pt. 1720) 197, John Idagu V. State (2018) 15 NWLR (Pt. 1641) 127, Pius V. State (2016) 9 NWLR (Pt. 1517) 341 at 232, paras A-F, Adetola V. State (1992) 4 NWLR (Pt. 235) 267 and Egwumi V. State (2013) 13 NWLR (Pt. 1372) 525.

 

4.5.         That since exhibit CW3A was improperly admitted, same should be jettisoned and expunged from the records, relying on the case of Okonji V. Njokanma (1989) 14 NWLR (Pt. 638) 250. That since the Defendant has led very positive and compelling evidence through DW1 and DW2  that the real cause of the permanent loss of vision in the claimant’s right eye is glaucoma, and that he had serious problems with the said eye prior to the accident, the Court should resolve Issue one (1) in favour of the Defendant.

 

4.6.         On Issue two (2), it was argued that, since the Defendant has established that the total loss of vision in the Claimant’s right eye has nothing to do with the accident on board the HD Pioneer in February, 2016 but as a result of series of medical problems which had plagued the right eye long before the accident, the Court should resolve Issue two (2) in favour of the Defendant. That the latin maxim ubi jus ibi remedium encapsulates the principle that when a legal right is violated the law provides a corresponding remedy or relief to the aggrieved party.

 

4.7.         With respect to Issue three (3), the Learned Counsel referred to the definition of an “employee” in section 73 of the Employee Compensation Act, Section 54 of the National Industrial Court Act and also the case of Keystone Bank Ltd V. Oyewale (2014) LPELR-CA/K/180/2013, and submitted that from the combined reading of the definitions any person who comes under the definitions can claim compensation under the Act. Sections 7 – 11 of the Employee Compensation Act provide for the category of injuries employees are entitled to claim compensation, and for the Claimant the nature of his claim is within Section 7(1) of the Act. That the disabling injury which the Claimant contends that he suffered is not connected to the incident aboard the HD Pioneer. That since the accident did not constitute a disabling injury, the Defendant was not obligated to report the incident to the Board of the NSITF or any other agency. The claimant did not suffer any loss of earnings as a result of the injury as he was paid throughout the period he was recuperating and fixed in a suitable role until he was certified fit to resume work.

 

4.8.         On Issue four (4), Learned Counsel argued that, since the Claimant has failed to prove his entitlement to reliefs (a), (b), (c) and (d), he is not entitled to reliefs (e), (f) and (g). That the claimant’s reliefs (c), (d), (e), (f) and (g) are in the nature of special damages but the claimant failed to proffer any compelling evidence to substantiate his claims as he did not tender receipts to support the alleged expenses. See the cases of Air Liquid Nigeria Limited V. Nnam (2011) 9 NWLR (Pt. 1251) 61 and Beta Glass Plc V. Epaco Holdings Ltd (2011) 4 NWLR (Pt. 1237) 223. For relief (g) it was argued that while the claimant contended during the first trial that he paid the sum of Three Million Naira (N3,000,000.00) to his Counsel as professional fees in cash in one tranche, he however told the Court when the trial commenced de novo that the payments were made in three tranches. The inconsistency has cast aspersions on his credibility. The Court was urged to resolve Issue four (4) in favour of the Defendant, and to dismiss the suit.

 

CLAIMANT’S SUBMISSIONS

 

5.1 The learned Claimant’s Counsel submitted this lone Issue for the Court’s determination: Whether the Claimant has proven its (sic) case to be entitled to all his reliefs?

 

5.2             It was submitted on the sole Issue that, for declaratory reliefs the Claimant can only succeed on the strength of his case and not on the weakness of the Defence, relying on the cases of Obawole V. Williams (1996) 12 SCN 415, Igbinovia V. OBTH (2010) FWLR (Pt. 50) 1745 at 1761, Wome V. Niger Delta Petroleum Resources Ltd (2022) LPELR-58556(CA), Adewunmi and Anor V. Akinloye and Ors (2019) LPELR-50417(CA) and Osho V. Adeleye (2024) 8 NWLR (Pt. 1941) 403 at 452, paras B-F; 456 para A.

 

5.3            That in the circumstances of this case where the substratum of the Claimant’s case is that he had industrial accident on the 12th of February, 2016 while working for the defendant and that the accident led to the loss of his right eye and the defendant did not pay him any compensation for either the accident or the loss of his right eye, the claimant has the burden of proving the following on the balance of probability or preponderance of evidence:

a.      That he was involved in an industrial accident while working for the defendant.

b.     That the accident is such that relates to the Claimant’s eyes region/face.

c.      That he lost his right eye.

d.     That the loss of the claimant’s right eye was as a result of the industrial accident to his eyes that occurred on the 12th of February, 2016 while working for the defendant.

 

5.4            It was further submitted that, apart from exhibits CW1X and DW1D which confirmed that there was an industrial accident, the defendant also admitted in their pleadings and evidence, including the admission by the defendant’s witness under cross-examination that the claimant had an industrial accident while working for the defendant. That evidence elicited during cross-examination is as good as being proven by the claimant without the need for further proof, relying on the cases of Odi V. Iyala (2004) 8 NWLR (Pt. 875) 283, Ikeni V. Efamo (1996) 5 NWLR (Pt. 446) and Austin Laz Thermoplastic Industries Ltd and Anor V. GTBank (2025) LPELR-81398(SC).

 

5.5            It was further posited that, the defendant did not deny the fact that the industrial accident occurred while the claimant was trying to carry out the instruction of his superintendent (one Mr. Dave) when without prior information the engine room on board was turned on which seriously injured him on the face and knee when the flange swung due to the amount of pressure, and that the accident was captured by the CCTV camera. The defendant only claimed that the accident affected the left eye and not the right eye without producing the CCTV footage. That a material fact which is not specifically denied is taken as established, relying on the case of Odiba and Anor V. Muemue (1999) LPELR-2216(SC). That the failure to produce the CCTV footage amounts to withholding of evidence because if it is produced it will be unfavourable to the defendant. See section 167(d) of the Evidence Act and the cases of Omotosho Ors V. Ojo (2007) LPELR-8809(CA), Anah V. Ezeweputa (2009) LPELR-8869(CA) and Ugwuagu V. Michael (2021) LPELR-55855(CA).

 

5.6            That while the case of the claimant is that the flange hit him on his face but he had a laceration on his left eye, the defendant admitted that there was a laceration on the left eye and that the right eye had higher intraocular pressure immediately after the accident. This shows that the accident was not just to the knee or to the left eye but to the claimant’s face or eyes region, and the admission by DW2 under cross-examination is sufficient proof of the fact, and the claimant is not required to prove same further. See MTN V. Corporate Communication Investment Ltd (2019) LPELR-47042(SC). That from exhibits CW1M and CW3A, as well as the evidence of CW2, CW3 and DW2 the loss of the claimant’s right eye was never in doubt.

 

5.7            Learned Counsel submitted further that, from exhibits CW1U, CW1V, CW1W and CW1Y there was no diagnosis of glaucoma in the claimant’s eye prior to the accident or immediately after the accident. The presence of glaucoma in the claimant’s right eye was only first suspected vide exhibits CW1S and CW1T, and subsequently confirmed in 2020 vide exhibits CW1A and CW1Q. That the evidence of the defendant that the intraocular pressure on the claimant’s both eyes had elevated and even higher on the right eye above the normal pressure contradicts their case that the accident only affected the claimant’s left eye and his knee, but supports the claimant’s case. That where the defendant’s witness gives evidence in support of the case of the claimant, the claimant can rely on the said piece of evidence in proof of his case, relying on the cases of Peklot (Nig) Ltd and Anor V. Sterling Bank Plc (2021) LPELR-56931(CA) and Kuringa and Anor V. Dino Agric and Dairies (Nig) Ltd and Ors (2019) LPELR-47106(CA).

 

5.8            That marrying the evidence of CW2, CW3 and DW2, it will show that trauma or force to the right eye of the claimant is the cause of the Glaucoma and nothing else. That since the evidence of both CW2 and CW3 as to the cause of the loss of the right eye of the claimant was not contradicted or challenged, it is deemed as admitted because the defendant failed to cross-examine them on the facts, relying on section 123 of the Evidence Act and the cases of O.A.N. Overseas Agency (Nig) Ltd V. Bronwen Energy Trading Ltd and Ors (2022) LPELR-57306(SC), Ikebudu V. Adali (2024) LPELR-62348(CA), Gaji V. Paye (2003) 8 NWLR (Pt. 823) 583 and CBN and Ors V. Okojie (2015) LPELR-24740(SC).

 

5.9            It was further argued that, the evidence of DW2 that the claimant failed to show up for further treatment which might have led to the loss of complete vision in his right eye contradicts the case of the defendant on the fact, and in law where a witness gives evidence which is at variance with pleaded facts, the new fact goes to no issue. See Ironbar V. CRBDA (2025) LPELR-81317(SC), Achonu V. Okuwobi (2017) 14 NWLR (Pt. 1584) 142, Akpakpuna V. Nzeka (1983) 2 SCNLR 1 and Okoya V. Santili (1994) 4 NWLR (Pt. 338) 256. That even if it is taken that the claimant failed to show up for further treatment, the evidence of DW2 at paragraph 12 of his deposition and exhibit CW1A as well as his admission under cross-examination that as Hyperbaric doctor his duty is to give final report of the health condition of a diver using all medical reports corroborates the fact that the loss of the claimant’s right eye is only related to the industrial accident he had in 2016 and not the surgery. That the evidence of DW2 amounts to evidence against interest which is binding on the defendant, and the court can safely rely on it in determining the case of the Claimant. See PDP and Ors V. Muhammad and Anor (2023) LPELR-60157. That the Claimant has proved that he is entitled to reliefs ‘a’, ‘b’ and ‘e’ on the preponderance of evidence, relying on the case of Eyiboh V. Mujaddadi and Ors (2021) LPELR-57110(SC).

 

5.10       Learned Counsel submitted further that, the claimant is an employee of the defendant as defined in section 73 of the Employee Compensation Act. Exhibits CW1Z1, DW1C, DW1D and DW1M all go to show that the claimant was employed by the defendant. That by Part III, section 7(1) of the Employee Compensation Act, for the claimant to be entitled to claim under the Act he must prove that the disabling injury or accident was one that occurred in the course of his employment. That there are overwhelming evidence before the Court establishing that the claimant had an industrial accident on the 12th of February, 2016 while carrying out his duties on board HD Pioneer working on Shell Petroleum Development Company forcados Single Buoy Mooring (SBM) change out-shell field, Offshore Delta State.

 

5.11       That by a community reading of the provisions of sections 7 – 11, 23 – 24 and the Second Schedule to the Employee Compensation Act, the claimant having lost his right eye as a result of the industrial accident which is a permanent disability is entitled to 30% of his monthly salary from the date the loss of the eye was confirmed being 2nd November, 2020 till the age considered as the retirement age for his nature of profession which is 61 years of age. This is what was calculated as relief ‘c’ which the Court was urged to grant.

 

5.12       For relief ‘d’, it was posited that, it was admitted by the defendant that the industrial accident was not reported because in their personal assessment, the accident was not a serious one, and the loss of the right eye is not connected to the accident the claimant had on the 12th of February, 2016. That the claim by the defendant is unfounded because no evidence was led to support same. That the defendant who did not deny that there was a CCTV Camera at the location failed to produce the footage as its production would have assisted the Court in deciding the case one way or the other but it was withheld by the Defendant. See Adekunle and Anor V. S. K. Ajayi (Nigeria) Ltd and Anor (2013) LPELR-21959(CA). That the proper person to call to give first hand evidence by the defendant is one of the eight persons on board at the scene of the accident, particularly the superintendent Mr. Dave Gibs, and not DW1 who admitted that she was not at the location where the accident happened. That since DW1 was not at the location of the accident, was not at the hospital, she had no direct and personal knowledge of how the accident occurred, and is therefore not a vital witness. That the presumption in law is that the defendant knew that if they call those present at the location of the accident, their evidence would have been against them, relying on the case of Anah V. Ezeweputa (2009) LPELR-8869(CA). That since the accident occurred on the 12th of February 2016 but exhibit DW1D which is the situation report started from 15th February, 2016, the exclusion of the report for 12th – 14th of February, 2016 shows that they contain some of the most important details as to the nature of the accident and the circumstances surrounding the sudden movement of the claimant out of the hospital to a hotel. That the failure on the part of the defendant to report the accident amounts to negligence. That if the defendant had reported the accident to the appropriate authorities, what the claimant is claiming in this suit as compensation for the loss of his eye would have been paid by the Nigeria Social Insurance Trust Fund Management Board.

 

5.13       The Court was urged to enter judgment in favour of the Claimant, and grant the reliefs in the suit.

 

5.14       With respect to exhibit DW1B, it was submitted that being a newspaper publication it is a public document and must be proved in line with section 116 of the Evidence Act with respect to certification. See Ewa V. Minister of Defence and Ors (2015) LPELR-52109(CA). For exhibit DW1D, it was posited that same is inadmissible because same is not complete and has been intentionally tampered with. For exhibit DW1E, it was submitted that it was tendered by someone who is not the author and is not an Ophthalmologist or any other eye expert. That DW2 admitted during cross-examination that Dr. Ugbo who supposedly authored exhibit DW1E is an Orthopedic surgeon. The Court was urged to expunge exhibit DW1E from the record. See Udom V. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 193 – 194.

5.15       With respect to the defendant’s allegation of forgery, it was submitted that the defendant who did not raise the issue of forgery by filing a counter-claim cannot raise it now as the court is to confine itself to the case presented by the claimant which is purely that of compensation for permanent disability arising from industrial accident. See Ekpenyong and Ors V. Nyong (1975) LPELR-1090(SC), NJC V. Aladejana (2015) All FWLR (Pt. 772) 1798 at 1825, Kuti V. Jibowu (1972) NSCC 447, Irom V. Okimba (1998) 3 NWLR (Pt. 540) 19, UBN Plc V. Emole (2001) 18 NWLR (Pt. 745) 501 and Udoma and Ors V. A.K.I.S.I.E.C. (2020) LPELR-51798(CA).

 

5.16       On the defendant’s contention that the claimant is not a credible witness because he allegedly denied having problems with his eyes only to later admit that he had cataract removal surgery, it was argued that the claimant never denied having surgery for cataract removal on his right eye. That the defendant is merely looking for technicality, but courts are now concerned with substantial justice, relying on the case of Intl Maritime Shipping Ltd and Anor V. Ibafon Oil Ltd (2016) LPELR-42252(CA).

 

5.17       On the defendant’s contention that CW2 and CW3 are interested parties hence exhibits CW1M and CW3A made by them were made in anticipation of this suit, it was submitted that they are not interested parties within the contemplation of section 83(3) of the Evidence Act. That in determining whether a document was made by an interested person, the court must read together sections 83(3) and 84(4) of the Evidence Act. That for a document to be excluded from evidence, it must be shown to have been made by a person interested; and where a document though made during the pendency or in anticipation of a suit was made by a third party and tendered by a person interested in proving his case, the document will be admissible. The interest envisaged under section 83(3) of the Evidence Act is personal interest and not an interest in official capacity. That CW2 and CW3 being medical doctors and specialists are not persons with interest in the litigation because they see it from their professional angles. See N.B.C. Plc V. Ubani (2014) 14 NWLR (Pt. 1398) 421, Holton V. Holton (1946) 2 AER 534 at 535, U.T.C. (Nig) Plc V. Lawal (2013) LPELR-23002(SC) at 33-34, Anyaebosi V. R.T. Briscoe Nig Ltd (1987) 3 NWLR (Pt. 59) 84, Gbadamosi V. Kabo Travels Ltd (2000) 8 NWLR (Pt. 668) 243, Tunwase V. Adeniyi (2022) LCN/16519, Ladoja V. Ajimobi and Ors (2016) LPELR-40658(SC), Ize-Iyamu V. Alonge (2007) 6 NWLR (Pt. 1029) and A.C. (O.A.O) Nig Ltd V. Umanah (2013) 4 NWLR (Pt. 1344) 247, paras. B – C.  That exhibits CW1M, CW1F and CW3A made by CW2 and CW3 were made by experts in the discharge of their official duties as Ophthalmologists, and are therefore admissible.

 

DEFENDANT’S REPLY ON POINTS OF LAW.

 

6.1.         On the claimant’s submissions in paragraphs 4.7(b)(iv), 4.7(b)(vi) and (vii) and 4.7(b)(d)(i), it was replied that the claimant’s contention is untenable because the evidence before the Court showed that the claimant’s right eye had been plagued with significant challenges long before the accident occurred. That the claimant made submissions which are not supported by the evidence led during the trial, and submissions of Counsel no matter how brilliant, eloquent or persuasive cannot take the place of legal evidence. See APC V. Sheriff and Ors (2023) LPELR-599953(SC), Maduabushi Onwuta V. The State of Lagos (2022) LPELR-57962(SC), Polycarp Danladi V. Nasir El-Rufai (2018) All FWLR (Pt. 924) 118, N.B.C. V. Alfijir Mining Nig Ltd (1993) and Aro V. Aro (2000) 3 NWLR (Pt. 649) 443.

 

6.2.         On the Claimant’s submission that the accident was captured by a CCTV recording, and that the failure of the defendant to produce the CCTV footage amounts to withholding of evidence, it was replied that the argument is untenable because the fact of the accident or that the claimant sustained injuries as a result of the accident is not a fact in issue in the suit. That from the pleadings and the evidence on record there is no doubt that the accident occurred, and that the claimant suffered certain injuries as a result of the accident. The issue of the defendant having an obligation to present CCTV footage of the accident is completely untenable. The Court was urged to discountenance the Claimant’s submissions, and to dismiss the suit.

 

COURT’S DECISION:

 

7.1.         Having pored over the pleadings, evidence and submissions of both Learned Counsel to the parties, I am of the considered view that in order not to make the issues prolix, the single Issue identified by the Claimant’s Counsel is sufficient to resolve all the issues in contention in this suit. The said Issue which is slightly modified by the Court is, whether the Claimant has proved his case to be entitled to the reliefs sought against the Defendant.

7.2.         I shall however start by resolving the preliminary points of law raised by both Learned Counsel with respect to their objections to the admissibility of some of the documents tendered in the suit. The Claimant’s Learned Counsel has asked the Court to discountenance and expunge exhibits DW1B, DW1D and DW1E from the record because they are all inadmissible in evidence. That while exhibit DW1B being a newspaper publication is a public document that should have been certified but it is not certified, exhibit DW1D is not a complete document and exhibit DW1E was tendered by someone who is not the author and not an ophthalmologist or expert in the eyes because DW2 admitted during cross-examination that Dr. Ugbo who prepared exhibit DW1E is an orthopedic surgeon.

 

7.3.         With respect to exhibit DW1B, while I cannot agree more with the submissions of the Learned Counsel to the Claimant that a Newspaper publication is a public document which must be certified by the National Library of Nigeria pursuant to section 102 of the Evidence Act and sections 2(2)(a) and 4(1) and (7) of the National Library of Nigeria Act except if the newspaper publication is tendered in its original form as held in the case of Miss Funmilayo Rotola Ayodele Williams V. Glaxosmithkline Consumer Nigeria Plc (2019) LPELR-47498(CA), I have however seen that exhibit DW1B is an online publication of the Nigerian Maritime Administration and Safety Agency (NIMASA), and not a physical newspaper publication to require certification as required by law. Since the argument of the Claimant’s Counsel is not with respect to the admissibility of computer generated documents, I do not find merit in the objection to exhibit DW1B, and same is hereby discountenanced.

 

7.4.         With respect to the claimant’s contention that exhibit DW1D is inadmissible because it is not a complete document, I have seen that while the document is the situation report on David Gibbs and the Claimant concerning the accident that occurred on the 12th of February, 2016, the report however started from 15th February, 2016 and not 12th February 2016 when the accident occurred. This notwithstanding, it is not enough to make the document inadmissible but rather goes to the weight to be attached to the document. Since the document is relevant to the issues in the suit relating to the occurrence of the industrial accident for which the Claimant is in Court, and also pleaded, I hold that same is admissible, and was properly admitted by the Court. The objection to exhibit DW1D is overruled and discountenanced.

 

7.5.         With respect to exhibit DW1E, the contention of the claimant is that same was not tendered by the medical practitioner that authored the document, hence it is inadmissible in evidence. I have seen that while the document was prepared by one Dr. Osaretin O. Ugbo (Consultant Orthopedic Surgeon), it was however tendered by Alhaja Latifatu Osagie, the Defendant’s Manager for Protocol and Logistics who testified as DW1. While I agree with the Claimant’s Counsel that exhibit DW1E was not tendered by the medical practitioner that authored it, I have however seen that the document was addressed to the Manager of the Defendant. Since the document emanated from the defendant’s custody, I hold the view that it was properly admitted and shall be relied upon in this suit. The Objection to exhibit DW1E is also overruled and discountenanced.

 

7.6.         I shall now consider the objection of the Learned Counsel to the Defendant that exhibit CW3A (not CW2A as contended) is not admissible on the ground that same was made in anticipation or during the pendency of this suit contrary to section 83(3) of the Evidence Act. I have seen that the said exhibit CW3A is a Medical Report of the Federal Medical Centre Yenagoa which was made on the 23rd day of February, 2022 after this suit had been filed by the Claimant on the 1st day of November, 2021.

 

7.7.         The law is trite that any evidence or document obtained during the pendency of a suit by an interested person is inadmissible and cannot be relied upon by a court of law. This is the intendment of section 83(3) of the Evidence Act (2011) which states that, “nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.” See the cases of U.T.C. Nigeria Plc V. Alhaji Abdul Wahab Lawal (2013) LPELR-23002(SC), Samuel Friday Nwogu V. Federal Republic of Nigeria (2024) LPELR-73202(CA) and Surf Oil and Gas and Anor V. Ecobank Nigeria Plc (2023) LPELR-60240(CA), where it was held as follows:“It is trite that document made in the course of proceeding in the Court for the purpose of the pending suit by interested parties are inadmissible in law by virtue of Section 91(3) of the Evidence Act and the case of M.W.T. (Nig) Ltd. v. P.T.F. (2007) 15 NWLR (Pt. 1058) 451 at 495 to 496 Para F-A.”

 

7.8.         While I agree with the contention of the Defendant’s Learned Counsel that exhibit CW3A was made during the pendency of the suit, let me however make the point that the document was not made by the Claimant who has an interest in the suit to bring it within the contemplation of section 83(3) of the Evidence Act. The maker or author of the document Dr. Ukoh Omaka (a Consultant Ophthalmologist) is a professional and seasoned medical practitioner who cannot be described as an interested party to the instant suit. It is obvious that he made exhibit CW3A in his professional capacity and is therefore an expert witness who testified upon an order or subpoena issued by this Honourable Court on the 17th of October, 2024. The facts that the production of exhibit CW3A was pursuant to an order of this Honourable Court, and also that he is an expert in his field of knowledge (a Consultant Ophthalmologist/eye surgeon) are clear exceptions to the provisions of section 83(3) of the Evidence Act. It has also been held that a person who is performing an act in his official capacity cannot be a person interested as contemplated under section 83(3) of the Evidence Act. It is obvious that CW3 Dr. Omaka Okoh Idan made exhibit CW3A in his official capacity as a Consultant Ophthalmologist with the Federal Medical Centre Yenagoa. The same position applies to exhibit CW1M which is a medical report issued by the Niger Delta University Teaching Hospital dated 21st March, 2022. I find support for this position in the case of Mrs. Imade Eze-Iyamu V. Mr. Omoruyi Alonge and 3 Others (2007) 6 NWLR (Part 1029) 84 at 115, paras. D – H, where it was held that, “In other words, by virtue of section 91(3) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish is inadmissible. See Salako v. Williams (1998) 11 NWLR (Pt.574) 505. However, as rightly submitted by respondents’ counsel, expert evidence is treated as an exception to Section 91(3) of the Evidence Act. In Apena v. Aiyetobe supra it was held that a surveyor or any expert in his field of knowledge who makes a statement in any form in respect of a matter in court at any stage of the proceedings is generally regarded as a person who has no temptation to depart from the truth as he sees it from his professional expertise. The submission of appellants counsel on this issue is not tenable as there is no evidence to support his conclusion that DW2 as handwriting analyst made the report to favour the respondents because they paid him. There must be a real likelihood of bias before a person making a statement can be said to be a “person interested” within the meaning of section 91(3) of the Evidence Act. In the instant case there is no evidence on record.” See also the case of Disu Olomo V. Sunday Ape (2015) 14 NWLR (Pt. 1478) 46. I therefore find no merit in the defendant’s objection to exhibit CW3A, and same is hereby overruled.

 

7.9.         With respect to the single Issue identified for determination, it may be apposite to make the point that the onus or burden of proof is on the claimant, particularly in this suit where he is asking for compensation and general damages for personal injury suffered by him as a result of alleged negligence of the defendant. See sections 131, 132, 133 and 134 of the Evidence Act, 2011. Since this suit is founded on alleged negligence on the part of the defendant which allegedly led to the injury sustained by the claimant while working on board the HD Pioneer on the 12th February, 2016, the onus is on the claimant to prove by way of compelling and verifiable evidence the following ingredients as stated in the case of A.B.C. (Transport Company) Limited V. Miss Bunmi Omotoye (2019) LPELR-47829(SC):

i.                   The existence of a duty of care owed to the claimant by the defendant.

ii.                 Breach of that duty of care by the defendant.

iii.              Damages suffered by the claimant as a result of the breach of the defendant of the duty of care.

In the case of Mr. Obadare Onaolapo V. ZTE Nigeria Limited (2022) LPELR-57592(CA), the Court of Appeal held that, “In law, in a claim for damages for negligence, the Claimant must plead and prove the following three main ingredients of the tort of negligence, namely; 1. The Defendant owed the Claimant a duty to exercise due care; 2. That the Defendant failed to exercise due care or had breached the duty of care; 3. The Defendant’s failure was the cause of the injury suffered by the Claimant.” See also the cases of Abuja Glazing Technology Limited V. Stanley Uchenna Nwajesus and Others (2021) LPELR-54904(CA), per Nimpar, JCA at pages 50-51, paragraphs E-F and Mr. Oriabure Patrick V. The Branch Controller, West African Examinations Council Benin. Benin City and Another (2022) LPELR-57587(CA), per Abundaga, JCA at page 11 paragraphs B-E.

 

7.10.    I have seen from the state of the pleadings and the evidence adduced by both parties that the facts of the claimant being an employee of the defendant and also that an industrial accident occurred on board the HD Pioneer when the claimant was working for the defendant on the 12th of February, 2016 are not in issue. Exhibit DW1C is the employment contract entered into between the Claimant and the Defendant dated 13th of January, 2015. The Defendant has neither denied employing the claimant nor denied the occurrence of the industrial accident which led to the injuries sustained by the claimant and his subsequent treatments at both the hospital on board the vessel and the Lily Hospital/Clinic in Warri, Delta State. The only contention by the defendant is that the injury sustained by the claimant were on his knees and laceration to his left eye which did not affect his right eye for which he is before the Court.

 

7.11.    Having established the employment relationship between the parties, and the fact that an industrial accident did occur on board the HD Pioneer on the 12th of February, 2016 which led to the claimant sustaining injuries on his knees and face when his superintendent one Mr. Dave Gips directed him to cut a 3m length of rope to tie the flange connected to the hose to serve as a holdback, and while doing that the pressure was suddenly turned on from the engine room to backflush the hose, it is pertinent to make the point that the Defendant as an employer owed the Claimant the duty of care to take reasonable care by providing a safe equipment and work environment generally to enable him discharge his duties safely. In the case of Kabo Air Limited V. Ismail Mohammed (2015) 6 ACELR 71 at 95, the Court of Appeal held as follows regarding negligence or duty of care in employment cases: “It is also settled that the liability of an employer under the duty of care rests upon the law of tort rather than on the law of contract and this is because under the general law of tort, a duty of care is said to arise when two persons are so closely and directly related that the activities of one of them may involve an appreciable risk of injury to the other- Donoghue v. Stevenson (1932) AC 562. Such a close and direct relationship exists between an employer and his employee and thus, under the ordinary principles of tort, the employer owes a duty of care and he is liable for negligence – Baker v. James (1921) 2 KB 674, Mackinnon V. Iberia Shipping Ltd (1954) 2 Lloyds Rep 372 and Davie v. New Merton Board Mills Ltd supra. An employee is, however, at liberty to sue under contract if there are special advantages – Matthews v. Kuwait Bechtel Corporation (1959) 2 All ER 345.” See also the case of Bright Chinedu Wodi V. Differential Aluminium and Steel Company Ltd and 1 Other (2014) 42 N.L.L.R. (Pt. 129) 29.

 

7.12.    The pertinent question to be resolved which formed the fulcrum of the Claimant’s case is whether the injuries he sustained on account of the industrial accident on the 12th of February, 2016 led to his current loss of vision on his right eye for which he is in court. In other words, whether the total loss of vision on the Claimant’s right eye is the direct consequence of the injuries he sustained when the industrial accident occurred on the 12th of February, 2016. The case of the Claimant is that the glaucoma discovered in his right eye on the 21st of November, 2019 and subsequently confirmed on 2nd November, 2020 and 16th February, 2021 which has permanently damaged the right eye was caused by the Industrial accident of the 12th of February, 2016.

 

7.13.    Having pored over the entirety of the pleadings and evidence on record, it is evident that apart from the fact that the injuries sustained by the claimant on account of the industrial accident of 12th February, 2016 were to his knees and left eye, the Claimant had cataract removed from his right eye surgically in the year 2014. Exhibit CW3A prepared by Dr. Okoh Omaka on the 23rd of February, 2022 confirmed that the claimant had an uneventful cataract extraction in the year 2014. CW3 Dr. Omaka Okoh Idan who prepared exhibit CW3A informed the Court during his cross-examination that he was employed by the Federal Medical Centre Yenagoa in May 2012, and that he headed the team of medical personnel that carried out the cataract extraction surgery on the Claimant’s right eye in the year 2014. He also affirmed that he did not treat the claimant in the immediate aftermath of the accident in February, 2016, and that there is a correlation between cataract and glaucoma, and what the claimant was operated for in 2014 was cataract while what he adjudged as the cause of the claimant’s loss of visions in 2022 was glaucoma.

 

7.14.    I have also seen from exhibits CW1X and DW1E that the claimant was treated for the injuries he sustained from the industrial accident of 12th February, 2016 and was declared fit to perform all physical activities including diving. Even subsequent medical examinations carried out on the claimant and the courses he attended for the purposes of his certification as can be gleaned from exhibit CW1T dated 22nd December, 2018, exhibit CW1G dated 29th September, 2020, exhibit CW1J dated 4th June, 2021, exhibit CW1H dated 5th February, 2020, exhibit CW1V dated 1st March, 2017, exhibit CW1U dated 15th January, 2018, exhibits DW1A and DW1F all confirmed he was medically fit to perform the functions of his office. In fact, from exhibits DW1M and CW1A it could be seen that the Claimant was re-engaged by the Defendant on HD Marine and was paid salaries from June, 2016 to December, 2016; and from the records of his Professional Logbook (exhibit CW1A) and exhibit DWIL in particular, he worked till sometime in September, 2020. The claimant himself admitted during his cross-examination that after the treatment he was certified medically fit to dive and he was reabsorbed by the Defendant and he worked without any issue until November, 2020 when he went to Lily Hospital and he was informed by the medical doctor that he had full blown glaucoma and loss of total vision on his right eye and was therefore not medically fit to dive. The Claimant also stated during this cross-examination that even though the Medical Certificate issued to him in November, 2020 indicated that he was unfit to dive, he however altered the medical certificate to indicate his fitness to dive by covering ‘un’ leaving only the word ‘fit’ before he made copies and sent them out including to his employer because he was scared of losing his job. DW2 Dr. Precious Uduasobor informed the Court during his cross-examination that while the Lily Hospitals issued exhibit CW1Q to the Claimant, the claimant however forged exhibit DW1K. The claimant stated further that even though by the International Guidelines the loss of one eye does not incapacitate him from diving, he is however incapacitated in one eye. I then wonder how a witness who will boldly admit before a Court of law that he ingeniously altered his medical record/result/certificate would want the same Court to believe his evidence that the loss of his right eye in 2022 was the result of the industrial accident that occurred in 2016.

 

7.15.    It is apposite to at this point make the point that, in cases relating to allegations of negligence as the instant suit, it is not enough to prove that there was an accident. It must also be established that the accident was as a result of the negligence of the defendant, and also that whatever injury or damages sustained must be proved to have been a direct flow or consequence of the defendant’s wrongful act. In the instant suit, I do not believe the Claimant that the glaucoma discovered in his right eye which led to the loss of vision in the right eye is a direct flow or consequence of the accident he had on the 12th of February, 2016. I say this because the injury of 12th February, 2016 was on his left eye (not the right eye), and it is also in evidence that prior to the industrial accident in 2016 the claimant had a surgery in 2014 when cataract was removed from his right eye and an artificial lens was placed in his right eye. The case of glaucoma was first suspected in 2019 and 2021 vide exhibits CW1S and CW1R but finally confirmed in 2022 vide exhibits CW3A and CW1M about six years after the industrial accident in 2016, and after he had continued to work with the defendant till November, 2020. The claimant’s left eye that was impacted in the accident of 2016 has no issues as can be gleaned from exhibit CW1F issued by the Federal Medical Centre Yenagoa on the 24th of March, 2021. Exhibits CW3A and CW1M and the evidence of CW2 and CW3 all attribute the cause of the glaucoma to trauma. CW2 Dr. Ibeinmo Opubiri, a Consultant Ophthalmologist at the Niger Delta University Teaching Hospital informed the court during his cross-examination that glaucoma is an eye disease that causes poor vision, and that it is possible to have a correlation between cataract and glaucoma. That even though he joined the Niger Delta University Teaching Hospital in 2010, he was however not part of the team of surgeons that carried out the cataract removal surgery from the claimant’s right eye in 2014. He affirmed that there was an Intra-Ocular Lens (IOL) in the claimant’s right eye, and that he saw the claimant for the first time in 2022. DW2 affirmed during his cross-examination that it was in 2020 that the claimant who was 44 years old was declared medically unfit on the ground of inability to see with his right eye but the vision on the left eye was still intact. He further stated that one of the risk factors for glaucoma is trauma, but that the accident of 12th February, 2016 caused injury to the claimant’s left eye not the right eye, and that when a medical doctor says that ‘A’ is secondary to ‘B’ it means that ‘B’ is likely the probable cause of ‘A’, and that there are medical reports showing that the Claimant already had an issue with his right eye.

 

7.16.    What is not in doubt as stated by all the medical professionals who are well respected experts/consultants in their areas of specialization (CW2, CW3 and DW2) as well as exhibits CW1M and CW3A is that the glaucoma that caused permanent loss of vision on the claimant’s right eye is as a result of trauma. What has however not been disclosed is the cause of the trauma the claimant had which resulted to the glaucoma and subsequent loss of vision in his right eye. To therefore attribute the glaucoma that was confirmed in 2022 to the industrial accident that occurred in 2016 (after a period of about 6 years) is to speculate since there is nothing on the record to link it directly to the injury the claimant sustained in 2016. If it is possible to link the trauma to the injury he sustained as a result of the accident in 2016, then it will equally be a possibility that the trauma was as a result of the cataract extraction surgery he had in 2014, particularly since the injury of 2016 was to his left eye with which he is still seeing. This Court cannot in all honesty hold that the trauma that caused the glaucoma which led to the loss of vision in his right eye is a direct consequence of the accident of 12th February, 2016. I so find and hold.

7.17.    Having held that the trauma that caused glaucoma and loss of vision on the Claimant’s right eye cannot be attributed to the injuries he sustained as a result of the industrial accident of 12th February, 2016, it is obvious that the Claimant has failed to establish his claims of negligence against the Defendant. As a result, reliefs ‘a’, ‘b’, ‘c’, and ‘d’ are hereby refused.

 

7.18.    For relief ‘e’ in the sum of N8, 316, 000.00, I have seen that same is in the nature of special damages which the law enjoins the claimant to specially plead and strictly prove. See the cases of Casmir Obok and Ors V. Chief Christopher Agbor and Ors (2016) LPELR-41219(CA) and Nigerian National Petroleum Corporation V. Clifco Nigeria Limited (2011) LPELR-2022(SC), at page 30, paras B – E, where the Supreme Court held as follows: “Evidence ought to be led before an award for special damages is granted. To succeed in a claim for special damages it must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. Special damages are exceptional in character and so there is no room for inference by the Court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the Court.”

 

7.19.    I have however seen that while the claimant is claiming the total sum of N8, 316, 000.00 as the cost of medical expenses or bills he incurred, he however tendered only exhibits CW1C and CW1E which are receipts/invoices all totaling the sum of N257, 000.00. It is equally in evidence as admitted by the Claimant that the defendant paid the medical expenses incurred in the course of treating him for the injuries he sustained in 2016. Having failed to establish relief ‘e’ as required by law, the said relief ‘e’ fails and is refused.

 

7.20.    Let me also make the very crucial point that the case of the claimant against the defendant is strictly founded on negligence and not for compensation under the Employees’ Compensation Act, 2010 (ECA). I say this because I have seen that the claimant seems to rely on the provisions of sections 7 – 11 and 23 – 24 of the ECA to allege that he is entitled to compensation for permanent disability. He had the choices of either claiming under the ECA or claim under negligence, and having claimed under negligence he cannot be seen to seek to rely on the provisions of the ECA to claim compensation. A claim under the ECA must first go through the processes in sections 4, 5 and 6 of the ECA, and any person aggrieved by the decision of the Board can then appeal to this Honourable Court pursuant to section 55(4) of the Employees’ Compensation Act, 2010.

 

7.21.    Having refused the principal reliefs a – e, it follows that reliefs ‘f’ for N20, 000,000.00 as damages for psychological pain, suffering and emotional trauma and relief ‘g’ for the sum of N3, 500,000.00 as cost of litigation are also bound to fail. Reliefs ‘f’ and ‘g’ are therefore refused.

 

7.22.    In the final result, the lone Issue is resolved against the Claimant. The suit fails and is accordingly dismissed. The judgment is entered accordingly, and the parties are to bear their respective costs.

 

 

Hon. Justice P. I. Hamman

Presiding Judge

 

REPRESENTATION:

 

Emmanuel Sunday Ibironke for the Claimant.

O. A. Owolabi for the Defendant.