IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: TUESDAY 29THSEPTEMBER 2020 SUIT NO.NICN/EN/40/2016
BETWEEN:
JOSIAH DANJUMA…………..……………………………...CLAIMANT
AND
1. ROYAL SALT LTD
2. VASSU-GOWDA DEFENDANTS
[PROJECT MANAGER, ROYAL SALT LTD]
APPEARANCES:
1. D.O. EZEME, HOLDING THE BRIEF OF O.J. UCHENA–FOR THE CLAIMANT.
2. V.O. AGU, HOLDING THE BRIEF OF V.C. ENEOGU–FOR THE DEFENDANTS.
JUDGMENT
INTRODUCTION
This suit was commenced by COMPLAINT on 10th October 2016. An Amended Complaint, wrongly tagged “Amended Writ of Summons” was also filed on 14th February 2017 together with an Amended Statement of Facts. The following reliefs were claimed in paragraph 28 of the Amended Statement of Facts:
(a) A declaration that the harassment, intimidation, bulling of the claimant by the 2nd defendant with the active support of the 1st defendant including kicking of the claimant in the course of the claimant’s duty in the 1st defendant by the 2nd defendant causing the claimant to fall unto a knife which slit open the claimant’s flesh at the lower abdomen and thereby causing the claimant pain, suffering, anguish, mental agony and psychological trauma as well as loss of blood which led to hospitalization of the claimant at the 1st respondent’s clinic and subsequently at God’s Power Health Clinic, opposite Police Station, NdufuEchara, Ikwo Local Government Area of Ebonyi State, is unlawful or unconstitutional.
(b) A declaration that the hitting of the claimant with a ceramic plate by the 2nd defendant which broke on the head of the claimant thereby injured the claimant and left a permanent scar on the head of the claimant as well as caused the claimant pain, suffering, anguish, mental agony and psychological trauma sometime in 2016, in the course of the claimant’s duty as an employee of the 1st defendant with the active support of the 1st defendant including but not limited to suppression of the incident is unlawful and/or unconstitutional.
(c) A declaration that the persistent harassment, intimidation, bullying and subjection of the claimant to forced labour by the defendants including insisting that the claimant commenced work at 5.00am daily an hour earlier than the official time for commencement of duty by the claimant in the 1st defendant and without compensation or pay is unlawful and/or unconstitutional.
(d) A declaration that the persistent intimidation, harassment, bullying including persistent punching and kicking of the claimant by the 2nd defendant without just occasion with the active support of the 2nd[sic] defendant is unlawful and/or unconstitutional.
(e) An order of injunction restraining the defendants whether by themselves, agents, servants, workmen, officers employees, supporters, privies or anybody or person claiming by or through the defendants and/or acting or in the name of or on behalf of the defendants from further infringement of the claimant’s rights.
(f) N20,000,000 [twenty million naira] only, damages jointly and severally against the defendants for the injury, loss or damages caused the claimant by the defendants.
Against the above, the defendants filed Statement of Defence on 14th February 2017.The claimant reacted by filing Reply to the Statement of Defence on 21st March 2018. Thus, pleadings were closed. The next thing for me is to summarise the cases made by the parties in their pleadings.
SUMMARY OF THE CASES MADE BY THE PARTIES
A. Case Made By The Claimant In The Statement of Facts
The claimant pleaded that he was employed as a chef by the 1st defendant and attached to the 2nd defendant and that in the course of his duty, the 2nd defendant subjected him to inhuman conditions which made him depressed and dejected. The claimant pleaded that the 2nd defendant made him to resume duty an hour earlier than the normal time without compensating him for this. He pleaded that the 2nd defendant with the connivance of the 1st defendant used to abuse him verbally and punch him for no justifiable reason. He pleaded that the 2nd defendant subjected him to harsh treatment and hit him with ceramic plate in 2016 and that it broke on his head and left a permanent scar. The claimant gave another instance that the 2nd defendant would insist that he fetched water manually from outside the house notwithstanding that there was running tap inside the house and that anytime he used the tap inside the house, the 2nd defendant would abuse and kick or punch him. The claimant pleaded further that on 27th June 2016, the 2nd defendant kicked him and he fell on a knife, which slit open his flesh at the lower abdomen and that this led to his hospitalization first at the 1st defendant’s clinic and later God’s Power Health Clinic when he fainted as a result of loss of blood.
The claimant pleaded further that, as a result of the injury he underwent radiological examination at Veramax Radiological Services before he was discharged at God’s Power Health Clinic. The claimant pleaded that he made photocopy of the report before the defendants took the original. The claimant pleaded further that he reported the incident at police station, which was incidented, but suppressed without inviting the 2nd defendant while he was threatened with sack if he did not refrain from pursuing the matter. The claimant pleaded that when his injury did not get better he approached a lawyer to take up the matter and visited the 1st defendant factory and had a meeting with the director whereupon the 1st defendant admitted that the claimant sustained the injury as a result of being kicked by the 2nd defendant but that the claimant was treated. The claimant pleaded too that, the director said the claimant was transferred away from the 2nd defendant to avoid a repeat of the incident and that, when the claimant’s lawyer asked if the 2nd defendant was not responsible for the injury why was the claimant transferred from him, the director could not answer.The claimant also pleaded that, the director said the claimant’s father visited on the incident and was well taken care of by the 1st defendant. The claimant pleaded that at this point, the director got stuck and ended the meeting abruptly by saying the issue of the injury had been closed since the claimant was treated.
The claimant pleaded that thereafter, the director asked that he the claimant be brought and when he got to him, he asked him why he should involve a lawyer in an issue that had been sorted out with his father cajoling him that he would be settled if he dropped the matter and that the defendants were not happy with the steps he has taken. The claimant pleaded that as a result his lawyer wrote the defendants seeking for redress and thereafter served pre-action notice on them. The claimant pleaded that the defendants did not reply the letter but continued to threaten the claimant. The claimant pleaded that this suit was filed claiming the reliefs earlier reproduced above. That ends the summary of the Statement of Facts. I now move to summary of the Statement of Defence.
B. Case Made in the Statement of Defence
The defendants counterpleaded that they did not violate the fundamental rights of the claimant and that as a steward, the claimant worked for about five hours a day like other stewards, by resuming at 6am, whereupon he prepared the breakfast and launch together, keeping the launch in a warmer for the master and thereafter retired at around 10am to his room, and would only come back at around 5 to 6pm to prepare the diner for about 1hr 30minutes and thereafter retire to his apartment like all other stewards. The defendants counterpleaded that as the 2nd defendant, a mining engineer resumed work at 7am and returned home at 8pm he was hardly around when the claimant performed his duties. The defendants counterpleaded that the 2nd defendants did not call the claimant a monkey or verbally abuse him nor subjected him to harsh treatment or hitting him with ceramic plate on the head and that the claimant did not at any time report the 2nd defendant to the company.
The defendants counterpleaded further that at all material time the claimant had access to the house of the 2nddefendant and all the fixtures and amenities and that the 1st defendant, being an artificial person could not have aided and abetted the 2nd defendant.The defendants counterpleaded that the claimant sustained the injury when he had a domestic accident, slipped on water on the floor and fell on the hedge of the sink, which gave him superficial injury and that the 2nd defendant treated him in its clinic but later took him to another hospital, which ordered for scan to ascertain the level of injury. The defendants pleaded that the scan showed the claimant only had superficial cut without injury to his organs and that the claimant received these treatments as outpatient. The defendants pleaded that none of the defendants was invited at the police station and could therefore not confirm whether there was any such report as alleged. The defendants counterpleaded further that the 1st defendant did not threaten the claimant with sack but that the claimant absconded when he brought this action.
The defendants counterpleaded that the wound sustained by the claimant healed very well and quickly as the 1st defendants gave him good medical attention.The defendants counterpleaded that the director of the 1st defendant told the two lawyers that came on the issue that the 2nd defendant did not kick the claimant and that he was not even around when the incident happened and that the claimant had reported to the office that he sustained injury at the tip of the sink at work in the house. The defendants also counterpleaded that all the other conversations alleged by the claimant did not transpire between the director and the two lawyers. The defendants counterpleaded that the director did not summon the claimant as pleaded and further that the defendants did not mount any pressure on the claimant not to pursue the case. The defendants pleaded that this Court would not have jurisdiction because, the dispute did not involve the 1st defendant and its employee numbering above 600 of which the claimant is just one; and finally urged the Court to dismiss the case. I move to the reply pleadings filed by the claimant.
C. Further Justification in the Reply to Statement of Defence
In the reply pleadings, the claimant counterpleaded that the 2nd defendant is generally called PM, which meant Project Manager and while he did not know the terms and conditions of service of the 2nd defendant, it was not part of his conditions of service that he be subjected to the treatments complained of. The claimant also reacted that the 2nd defendant used to go out and in at will and mostly at home in the weekends. The claimant pleaded in reaction that the director [Obi Alio] is an agent of the 1stdefendant as a corporate body and that the attention of Mr. Obi Alio was drawn to the conducts in issue and he refused to act but tried to sweep the complaints under the carpet.
The claimant also counterpleaded that the sink in the kitchen had smooth edges and that the incident in issue happened between 8:30am and 10am and that the 2nd defendant kicked him out of anger for disobeying his instruction not to fetch water in the kitchen and that, he was fully clothed by his protective gear which was cut through by the knife to reach his flesh. The claimant counterpleaded that the treatment given to him was not out of sense of duty but to dissuade him from taking up the matter and that Mr. Obi Alio was offended when he involved lawyers, leading to the removal of Sergeant Sunday Ademu as part of the security team attached to the 1stdefendant, as punishment for rendering assistance to him. The claimant counterpleaded that he left the 1st defendant as a result of pressures on him to soft-pedal.
The claimant counterpleaded that, in view of the fact that the injury was not a mere domestic one, Sergeant Ademu insisted that it be reported to the police and that his lawyers actually met with Mr. Obi Alio on this issue and that Mr. Obi Alio never claimed lone domestic accident at the meeting as being touted; and that the 1st defendant was under a duty to provide safe working environment and to ensure that cases affecting the health and safety of its workers were well treated and not suppressed. The claimant also counterpleaded that because of the nature of the issue, Mr. Obi Aliopersonally [the director] handled it without the assistance of any other officer of the 1st defendant. Thus, ended the reply pleadings by the claimant. I move to the summary of the proceedings and evidence on record.
SUMMARY OF PROCEEDINGS AND EVIDENCE
The case came up first before His Lordship, A. Ibrahim J. on the 20th February 2017. On 3rd March 2017, His Lordship, A. Ibrahim J. granted leave to the claimant to amend his complaint and Statement of Facts.That was the end of the proceedings before His Lordship, A. Ibrahim J. It came up next before His Lordship, I.J. Essien J. on 6th November 2017, His Lordship Ibrahim, having been transferred.On 15th March 2018, His Lordship, Essien J. granted the defendants extension of time to file their defence processes and deemed the Memo of Appearance and Statement of Defence already filed as properly filed and served. The matter came up twice subsequently without proceeding to trial before His Lordship, Essien J. before it now came up afresh before me on 3rd October 2018, His Lordship Essien J., having also been transferred. Trial commenced before me on 29thOctober 2018 with one ChidiAgboezetestifying as CW1, but in the absence of the defendants and their counsel, who offered no reason for their absence.
CW1 swore on the Holy Bible and thereafter and adopted his written deposition made on 5th October 2016, which was a repetition of the pleadings.CW1 tendered 6 documents without objection and they were marked Exhibits CWA, CWB, CWC, CWD, CWE and CWF accordingly and the examination-in-chief was brought to an end.Since the counsel to the defendants was not in Court, the matter was adjourned for cross-examination. It came up for cross-examination on 21st January 2019 and CW1 was accordingly cross-examined.
Under cross-examination, CW1 admitted that he was not there when the claimant had the accident but that,the claimant informed him. CW1 also said he knew both the claimant and the 2nd defendant were employees of the 1st defendant. He also admitted that 1st defendant bore the cost of treatment of the claimant. He admitted too, that, he did not visit the clinic of the 1st defendant to know what the claimant told the clinic, but that, when they visited the director of the company [Mr. Obi Alio], he told them that the 2nd defendant was responsible for the injury sustained by the claimant. He admitted that, the conversation was not recorded. The cross-examination of CW1 was brought to an end without re-examination. CW1 was thereafter discharged while one Sunday Ademu was brought in as CW2.
CW2 swore on the Holy Bible and said he was a police officer. At the point of adopting his written depositions, the 2nd of the written depositions could not be found in the file and the defence counsel said it was not served on the defence too. The matter was therefore adjourned for the claimant’s counsel to sort out this.The matter came up next on 18th March 2019 and CW2 continued with his testimony. CW2 adopted his written depositions made 5th October 2016 and 21st March 2018, which were repetitious of the parts of the pleadings relating to him.Objection against the attempt of CW2 to tender medical opinion was sustained and the document rejected and marked accordingly. Thereafter, the examination-in-chief was brought to an end and the cross-examination of CW2 was conducted. Under cross-examination, CW2, who admitted being part of the police team detailed to secure the 1st defendant, said he was subpoenaed and that the subpoena was Exhibit A4. CW2 admitted that director of the company stopped his posting to the 1st defendant because of this case and that he was not around when the incident happened and that all he knew were what he was told. CW2 said the claimant was not treated in the 1st defendant’s clinic but merely given first aid there. He also said from the 1st defendant’s clinic, the claimant was taken 9
to the hospital. He admitted that all the apartments in the first defendant’s premises were connected to electricity and water, which were constant.
CW2 also admitted that the claimant was his brother. CW2 said that he signed his two written depositions in the Open Registry and the attempt of the defence counsel to compare the signatures on the written depositions with fresh signature from the claimant was disallowed by the Court. The cross-examination of CW2 was thereafter brought to an end. Re-examination was conducted on the meaning of subpoena and brought to an endand CW2 was accordingly discharged.The case was thereafter adjourned for continuation of trial. It came up next on 22nd May 2019 and one Aisha Ibrahim, a GL 9 Admin Staff of the Court acted as the interpreter from IgalaLangauge to English Language and vice versa for CW3, the claimant.After swearing on the Holy Bible, CW3 adopted his written depositions made 5th October 2016 and 21st March 2018, which were virtually repetitions of his pleadings; and the examination-in-chief was thereafter brought to an end while the cross-examination began in earnest.
Under cross-examination, CW3 admitted that, there was a water-sink in the 2nd defendant’s residential apartment but denied skidding and being injured by the sink. CW3 denied that the kitchen knife fell on the floor and lied flat but that he washed the knife and spread it on the table and his boss came and accosted him on why he should be fetching water from the kitchen instead going out to fetch water and that his boss kicked him and he fell down and jammed into the knife. CW3 admitted that the kitchen table was as high as the Bar table. CW3 said the 2nd defendant came back for breakfast when the incident happened and that he left the employment because he was being threatened. He said he was taken to another hospital when the injury did not get better. He also said his bonus was not paid. That is all about the summary of CW3’s cross-examination. There was no re-examination. Thereafter, the learned counsel to the claimant closed the case and CW3 and the interpreter were discharged.The case was thereafter adjourned for the defence.
The case eventually came up for defence after two adjournments on the part of the defence on 9th December 2019. But before then, the defendants’application for leave to call additional witnesswas granted unopposed. Thereafter, one Ikenga Dominion Chinonso, a staff of the 1st defendant, was fielded as DW1. DW1 was sworn on the Holy Bible and adopted his written deposition of 22nd October 2019 without tendering any document and the matter immediately proceeded to cross-examination. The written deposition was more or less repetition of the averment in the Statement of Defence. Under cross-examination, DW1 retorted that he had been in the scene of the case before the cross-examination and that he usually resumed 6am and closed at work around 5pm in some cases. He said his work is not limited to the Personnel Unit as he also supervised the welfare of staff. DW1 said the contract agreement was oral. He admitted that he never worked as a cook in the apartment in issue and that he was not a medical doctor. He also admitted he was not the person who treated the claimant’s injury but said he was there when the treatment was given. DW1 admitted that the claimant was taken to medical lab clinic where scan of the wound was done. DW1 said claimant came to report that he fell and sustained injury at the edge of the water-sink and that the official report the claimant made to him was in his office.
DW1 admitted that he never mentioned in his written deposition that anybody invited him and any other person to the meeting between the lawyer to the claimant and the director of the 1st defendant [Mr. Obi Alio]. DW1 said the 1st defendant complied with its duty to provide a safe working environment for its staff and that every apartment has a sink which is to be taken care of by the worker. The cross-examination was brought to an end without re-examination and DW1 was thereafter discharged.The matter came up next 11th December 2019 and the defence closed without further witness. The case was thereafter adjourned to 10th February 2020 for adoption of final written addresses but the Court did not sit on that date and could also not sit on the 25th March 2020 because of nationwide lockdown in Nigeria occasioned by COVID-19 Pandemic. The lockdown was in force till 7th July 2020 when the Court finally sat. The adoption could not take place on this date because the defence just served the claimant with their final written address and the claimant needed time to file reply on points of law [RPL]. It was thereafter adjourned to 14th July 2020 for adoption and the Court did not sit while it was further adjourned to 16th July 2020. The matter came up on 16th July 2020 as adjourned.
The learned counsel to the defendants, V.O. AGU adopted the final written address of the defendants while D.O. EZEME for the claimant thereafter adopted the final written address of the claimant and the RPL. The matter was thereafter adjourned to 22nd July 2020 for judgment. As the judgment was not ready on this date, it was adjourned sine die and when the judgment became ready, date was communicated to the learned counsel to the parties. The next thing for me is to summarise the final written addresses of the parties. I start with that of the claimant, which was filed first, having been filed 02/07/2020 while that of the defendants was filed 06/07/2020.
SUMMARY OF THE FINAL WRITTEN ADDRESSES
A. Claimant’s Final Written Address
O.J. UCHENNA franked the claimant’s final written address. The learned counsel submitted a lone issue for the determination of the case, to wit, “Whether from the evidence before the court, the claimant is not entitled to judgment and the reliefs in this suit.”In arguing this lone issue, the learned counsel to the claimant gave a graphic detail of the evidence in proof of the case and submitted that, it was a common ground that the claimant sustained the injury in the course of his duty. The learned counsel argued that, the claimant was not cross-examined on the vital evidence he gave in this case and; that, thus, the evidence is deemed admitted. In support of this proposition, the learned counsel cited First Bank of Nigeria Plc v. Nwadiala& Sons (2016) 18 NWLR (Pt. 1543) 34-35, H-A. The learned counsel argued further that, the evidence of the claimant was further reinforced by the admission of the defendants under cross-examination that the injury occurred in the course of work, that there was a meeting between the claimant and others and Mr. Obi Alio on the injury, whereupon the Mr. Obi Alio admitted that the injury was caused by the 2nd defendant. The learned counsel cited Akomolafe v. Guardian Press Ltd (Printers) (2010) ALL FWLR (Pt. 517) 773 at 784, E-F.
The learned counsel submitted that, the cross-examination of the defence counsel on whether the conversation with Mr. Obi Alio was recorded is of no moment, as the evidence of the witness in Exhibit CWA to the effect that the meeting was brought to an end abruptly when Mr. Obi Alio said the matter had been ended because the claimant had been treated while the father had been settled. The learned counsel argued that, the evidence of CW2 corroborated the fact the injury was caused by the 2nd defendant and that, CW2 equally testified that Mr. Obi Alio suppressed the case at the police station and made sure he was relieved of his duty at the 1st defendant as police officer because, he was accused of encouraging the claimant to pursue the case. The learned counsel argued that, the testimony of the claimant as CW3 brought out the facts that the 2nd defendant previously injured the claimant on the head, that the claimant worked extra hours without being paid, the 2nd defendant made the claimant’s work to be more tedious by making him to fetch water from outside, even though,there was running tap in the apartment, the 2nd defendant subjected the claimant to verbal and physical abuses and; that, the 1st defendant suppressed the complaint of the claimant. The learned counsel argued that the evidence of the claimant was not shaken at all more so, when he was only cross-examined on the incident of 27th June 2016, and which cross-examination, rather than damaging his case, strengthened it.
The learned counsel reproduced the cross-examination in issue and submitted that, it was clear that the 2nd defendant actually injured the claimant and that the defendants hounded the claimant out of work on account of this case. The learned counsel argued that, the defendants were sued jointly and severally and that since the acts leading to this suit were from the 2nd defendant, who was sued in his personal capacity, the employees of the 1stdefendant though, could testify for it, notwithstanding the hearsay rule, couldn’t testify for the 2nd defendant. The learned counsel argued that, DW1 was not in the scenes of the incident of 26th June 2016 nor those of the other incidents. The learned counsel drew attention to the fact that, the report of the incident, which DW1 claimed under cross-examination, the claimant submitted to him, was not tendered. The learned counsel argued that, this brought in the presumption of section 169(d) of the Evidence Act that, were it produced, it would be against the defence. The learned counsel argued that, the fact that the claimant had to be transferred to another section of the company after the incident proved that the 2nd defendant abused him physically.
The learned counsel argued that, the question by O.J. Uchenna to Obi Alio, in Exhibit CW1, demanding to know why the claimant had to be transferred from the 2nd defendant, if the 2nd defendant did not do what was alleged against him, made Obi Alio to be stuck, as he could not answer. The learned counsel argued that, the 1st defendant would not have promised to compensate the claimant if the defendantswere not responsible for the injury. The learned counsel also quipped that, it was necessary to know why the claimant’s father had to visit the 1st defendant and hold talk with its director in respect of the matter and; why the 1st defendant took care of him, if they were not guilty. The learned counsel argued that, all these point to the fact that, the 1st defendant? [2nd defendant] was responsible for the injury. The learned counsel argued that, the very fact that evidence of similar attacks against the claimant by the 2nd defendant, as contained in paragraph 7 of the claimant’s written deposition of 5th October 2016 was not denied, is further proof of the incident of 26th June 2026; and that, the transfer of the claimant from the 2nd defendant showed a belated attempt to arrest the ugly situation and proved an admission on the part of the defendants.
The learned counsel argued that, even if the claimant failed to prove the incident of 26th June 2026, his case remained unassailed because, the defendants did not deny the other allegations made against them, more so, since the 1st defendant was under obligation to secure the working environment for the claimant. The learned counsel submitted that, safe working environment included ensuring that co-workers didnot constitute hazards to the others, either physically or psychologically. The learned counsel argued that, the refusal of the 2nd defendant to allow the claimant to enjoy the luxury of fetching water inside the kitchen with running tap but from outside,was an example of insecure working environment. The learned counsel also argued that,the fact that eight people occupied the single room allocated to the claimant showed too, that the working environment was bad. The learned counsel submitted that, it wasmore tolerable where there was no amenity than to have amenities and a worker be denied the enjoyment,in order to humiliate such worker. The learned counsel argued that, these conducts are unacceptable in any civilized society, more so, a work place.
The learned counsel finally submitted that, from the above, it is clear that the claimant has proved his case and urged the Court to grant the reliefs claimed. That ends summary of the final written address of the claimant. I move to the final written address of the defence, filed after the claimant’s final written address.
B. Defendants’ Final Written Address
G.C.E CHIBUZO franked the defendants’ final written address. The learned counsel formulated two issues for the resolution of the dispute. They are:
i. Whether from the facts of this case the Honourable Court has jurisdiction to hear and determine the case?
ii. Whether the plaintiff has proved his case on the preponderance of evidence to entitle him to the reliefs claimed?
Arguing issue 1, which challenged the jurisdiction of this Court, the learned counsel submitted that, granted that section 11(a) of the National Industrial Court Act [NICA] gives this Court jurisdiction over work environment, health and safety measures, that jurisdiction would not extent to personal quarrels between two workers. The learned counsel argued that the alleged negligent conducts of the 2nd defendant was not a labour matter. The learned counsel submitted further, that this Court lacked jurisdiction to compensate for infringement of fundamental rights as claimed in relief 28. The learned counsel argued that, the claimant admitted that he was allowed use of all the facilities provided by the defendants in his place of work and freely made use of them in his duties. The learned counsel argued that, by this, this Court lacked jurisdiction and cited Adigun v. Osaka (2003) 5 NWLR (Pt. 812) 95. The learned counsel finally urged the Court to strike out the suit; and moved to issue 2.
Under issue 2, which is whether the claimant proved his case in the event that the objection against jurisdiction failed, the learned counsel argued that, the answerwas no. The learned counsel argued that, not all acts of negligence was actionable and cited Kala v. Jarmakari Transport Ltd (1961) ALL NLR 747 and Ojo V. Gharoro25 NSCQR 712. The learned counsel listed three elements that must be proved to succeed in torts of negligence. The learned counsel argued that, the 1stdefendantdid not breach the duty of owed the claimant,by providing all working tools, which the claimant admitted under cross-examination and said he made use of them. The learned counsel also submitted that, the 2nd defendant was not in breach of any duty he owed the claimant. The learned counsel argued that, the admission of the claimant that the 2nd defendant used to leave by 7a.m. and back late by 8pm and that, the injury in issue occurred around 9a.m and confirmed by DW1 in his evidence-in-chief and under cross-examination when DW1 said the defendant ran a strict schedule and he could not leave until break time around 1pm means, he was not around when the incident happened.
The learned counsel to the defendants argued that, contrary to the evidence of the claimant that the sink has smooth edges, a sink has sharp edges that could injure a person. The learned counsel argued that, the claimant admitted that the knife was kept on the table and that this fact was not pleaded. The learned counsel argued that, the claimant admitted the knife was lying flat on the table and submitted that, a knife lying flat on a table or floor could not injure a person, as it would naturally slide further off when impacted by force. The learned counsel cited section 167 of the Evidence Act in support of his proposition. The learned counsel urged the Court, on this ground, to find that the claimant failed to prove that the 2nd defendant was responsible for the injury.
The learned counsel submitted further that, the claimant failed to prove the other allegations contained in the pleadings because, the defendants denied these allegations.The learned counsel argued that, none of the previous allegations was reported to the 1st defendant and that the claimant did not tender any evidence that he made such report.The learned counsel argued that, the claimant failed too, to show to the Court the alleged scar.
The learned counsel later submitted that, even if the actions of the 2nd defendant were responsible for the injuries suffered in this instance, the 1stdefendant could not be held vicariously liable; as the cause of action arose in the private residence of the 2nd defendant and not in the common cause of business of the 1st defendant.The learned counsel argued that, to claim damages against the employer in such instance, as this, the injured party must prove that both himself and the tortfeasor are co-worker and that both of them were in common work at the time of the employment. The learned counsel submitted that, the claimant did not meet these requirements. The learned counsel cited Popoola v. Pan African Gas Distributions Limited (1972) 1 ALL NLR (Pt. 2) 395. The learned counsel argued further that there was even no evidence that the 1st defendant authorised the acts in question.The learned counsel argued that, this would be so because; the acts of the 2nd defendant complained of, have no nexus to his duty as an employee of the 1st defendant.The learned counsel argued that, the 2nd defendant was therefore on a frolic of his own on the acts in issue.
The learned counsel argued that, since the claimant admitted he kept the knife where he ought not to, he contributed to his injury. The learned counsel argued that, the claimant gave no evidence in support of special damages, because the 1st defendant bore the cost of treating the claimant. The learned counsel argued that, the Court could only make fair and reasonable general damages, if the need arises and cited Okuneye v. Lagos City Council (1973) 2 CCHCJ 38 and Anumba v. Shohet (1965) 2 ALL NLR 183. The learned counsel argued that, the Court must take into consideration the facts that the 1st defendant treated the claimant and continued to pay his salaries until he absconded and that, the injury suffered did not incapacitate him.
The learned counsel finally urged the Court to dismiss the case because the claimant did not prove his case. That ends the final written address of the defence, I move to the RPL of the claimant’s counsel.
C. Reply on Points of Law
O.J. UCHENNA ESQ. also franked the RPL.The learned counsel cited sections 254C-(1)(a)&(d) of the 1999 Constitution [as altered] to argue that, this Court has jurisdiction over the cause of action in the instant case, contrary to the argument of the learned counsel to the objector. The learned counsel also cited NDIC v. OkemEnt. Ltd (2004) ALL FWLR (Pt. 210) 117 at 1232-1233, H-A and some other cases, to the effect that, the word “notwithstanding” employed in section 254C-(1) of the 1999 Constitution conferred exclusive jurisdiction on the NICN on the cause of action herein.The learned counsel argued that, the contentions of the learned counsel to the defendants were inconsistent in that,he could notargue that the action could only be brought pursuant to fundamental rights procedures and at the same argued that the action was challenging negligence. The learned counsel argued that, in any case, a claimant was at liberty to make preference of a remedy he liked where there were several remedies provided in law for the cause of action and cited Ushae v. C.O.P. Cross River Command (2006) ALL FWLR (Pt. 86) 106-107, G-A. The learned counsel urged the Court to dismiss the objection.
The learned counsel argued that, the proposition that the case was brought on negligence was not proved and that, the cause of action was centred on breach of duty to provide a safe working environment and infraction of right not to be maltreated. The learned counsel submitted that the argument that the dispute was between the claimant and the 2nd defendant in his private capacity could not fly, in that, the 1st defendant owned the apartment and deployed the claimant to work there and; that, the cause of action arose in the course of the claimant’s employment and duty. The learned counsel submitted that, arising from the above, this Court has jurisdiction over the cause of action herein. There ended the RPL.
My next duty is to give my decision on the dispute. Before doing this, I need to stress that I have complied with the prerequisites. I have carefully read all the relevant processes and digested them. I have equally carefully summarised the pleadings of the parties. I have carefully summarised the evidence under cross-examination, but did not summarise the evidence-in-chief because, these pieces of evidence were more or less repetitions of the pleadings, which I have earlier carefully summarised. I have equally carefully read and digested the written addresses of counsel, as summarised above. I have also checked up the focal authorities cited and carefully digested them. I have equally taken into consideration the theories of the case as propounded by each side and done my personal researches on relevant authorities. I therefore proceed to give my decision.
COURT’S DECISION
In deciding the case, I adopt the two issues formulated by the learned counsel to the defendants, but with issue 2 slightly amended and added an additional issue to make the issues three.The issues now are:
1. Whether From The Facts Of This Case, The Court Has Jurisdiction To Hear And Determine The Case?
2. Whether The Claimant Has Proved His Case On The Preponderance Of Evidence?
3. Whether the Claimant is entitled to the Reliefs Sought?
I take the three issues seriatim, more particularly so because, issue 1 is a threshold.
ISSUE 1:WHETHER FROM THE FACTS OF THIS CASE, THE COURT HAS JURISDICTION TO HEAR AND DETERMINE THE CASE?
I do not think this issue deserves any waste of time. I agree intoto with thelearned counsel to the claimant that, this Court has jurisdiction on this matter. I just wish to observe first, that, I was surprised that in discussing the jurisdiction of this Court, the learned counsel to the objector ignored the provisions of the Constitution and cited only section 11(a) of the NICA! No wonder that the NEEDLESSobjection was brought at all. Constitutions and their provisions in federalisms are superior to all other laws – see First Bank of Nigeria Plc v. T.S.A. Industries Limited (2010) LPELR-1283 (SC) 74-75, F-A. Nigeria is a federal state. As ably canvassed by the learned counsel to the claimant, by virtue of section 254C-(1)(a) of the 1999 Constitution [as altered], this Court has exclusive jurisdiction over all, without exception, labour and employment disputes, notwithstanding any other contrary provisions contained in the Constitution itself.So, you cannot begin to talk of any other provisions of the Constitution than section 254C or the provisions of any other statute, as divesting this Court of jurisdiction on any matter on which section 254C of the Constitution ably conferred it with jurisdiction. It was therefore a serious ignorance of the law to argue that the National Industrial Court of Nigeria’s[NICN] jurisdiction does not extend to personal quarrels between workers in the course of their work or that, it lacks jurisdiction to grant compensations for breaches of fundamental rights in employment relations.
It all depends on how the cause of action arose, where and under which situation. In the instant case, allegations of violence, harassment at workplace and abusive employment relationscoupled withintentional refusal on the part of the employer to provide safe working environment are made. So, this Court has absolute jurisdiction over these causes by virtue of section 254C-(1)(a), (f), (g) & (h) of the 1999Constitution[as altered]and can accordingly grant the necessary reliefs by virtue of applicable ILO Conventions& standards in combination with sections13, 14, 15 and 19(d) of the NICA, as would be shown anon– see Salami v. National Judicial Council (2014) LPELR-22774 (CA) 24-27, where the extent of the exclusive civil jurisdiction of the NICN on all manners of employment and labour matters and matters incidental thereto or arising therefrom are admirably stated.
Before I round up on the issue of jurisdiction of the Court, let me clear a related,speciously ingenious point, from the learned counsel to the defendants that the suit cannot fly for not being brought under the fundamental rights enforcement procedure rules. It should be understood that, the causes of action herein are governed by section 254C of the 1999 Constitution [as altered], which gives this Court exclusive civil jurisdiction. Therefore, the jurisdiction of this Court, as granted by the section 254C of the 1999 Constitution [as altered], is not subject to the fundamental rights enforcement procedure rules, as prescribed by the Hon. The Chief Justice of the Federation, but to the civil procedure rules of this Court, even where issues arising from the fundamental rights provisions of Chapter IV of the 1999Constitution are directly involved because, the provisions of section 254C-(1)(d), granting this Court’s jurisdiction on issues arising from the fundamental rights in Chapter IV of the Constitution, are only exercisable under the rules made by the President of this Court, pursuant to section 254E-(1) of the 1999Constitution [as altered], unlike the other courts liable to the general provisions of the fundamental rights enforcement procedure rules made by the Hon. The Chief Justice of Nigeria, pursuant to section 46(3) of the 1999 Constitution [as altered].
It would be observed that section 46(3) of the 1999 Constitution actually excluded the National Industrial Court, capturing only the High Courts. In essence, the jurisdiction of the NICN to enforce or apply the provisions of Chapter IV of the 1999 Constitution [as altered] is specially conferred by section 254C-(1)(d) of the 1999 Constitutionand can only therefore be exercised under the rules specially made for the Court by virtue of section 254E-(1) of the 1999Constitution[as altered] because of the nuances connected with the application of fundamental rights in labour, industrial and employment relations.This is because, in deciding any issue in the Court, be it related to fundamental rights as contained in Chapter IV of the Constitution, the Court must always have in mind ILO’s conventions, treaties, standards and protocols, the need to eschew unfair labour practices, and the need to ensureestablishment of international best practicesin labour and employment relations in Nigeria to bring the nation in tune with the comity of nations, which only this Court is created to do – see section 254C-(1)(f)-(h) & (2) of the 1999 Constitution [as altered].
All in all, the objection lacks merit and it is accordingly dismissed. I move to issue 2, which is on the substantive case on the merit.
ISSUE 2: WHETHER THE CLAIMANT HAS PROVED HIS CASE ON THE PREPONDERANCE OF EVIDENCE?
I have to state at the beginning that, in resolving issue 2, the parties are agreed that the claimant and the 2nd defendants were employees of the 1st defendant, that the claimant was a steward/cook attached to the 2nd defendant, that the claimant sustained an injury in the course of his employment in the 2nd defendant’s apartment. The only areas of divergence are: whether the 2nd defendant was responsible for this injury, by reason of domestic violence and harassment; and whether the 1st defendant was complicit. The evidence of the claimant was that, on 27th June 2016 the 2nd defendant kicked him and he fell unto a knife and thereby sustained injury in the lower part of his abdomen – see paragraph 9 of the written deposition of CW3 of 5th October 2016 [the claimant] adopted in Court 22nd May 2019. By this paragraph alone, it is not clear what led to the kicking. But a perusal of the preceding paragraph 8 showed that the cause of the kicking was the disobedience of the claimant in fetching water from the tap in the kitchen against the order of the 2nd defendant that he must always fetch water from the tap outside the apartment.
This area of the evidence was clarified under cross-examination when the claimant testified that,his boss [the 2nd defendant] accosted him on why he should disobey him by fetching water in the kitchen against his instruction and kicked him out of anger, which made him to fall on a knife he placed on the table, which cut open his lower abdomen. The claimant testified further that, the 2nd defendant has been in the habit of unleashing violence on him, harassing and abusing him for fetching water from the tap in the kitchen long before the fateful incident – see paragraph 8 of the written deposition of the claimant [supra].
Now, the evidence of the defendants in rebuttal is that,pipe-borne water runs in the kitchen of the apartment to which the claimant had access and that, the claimant slipped when heaccidentally stepped on the water he inadvertently poured on the floor of the kitchen and fell on the edge of the sink, which impact gave him the injury in issue and that, the 2nd defendant used to go to work at 7am and back at 8pm and was hardly around when the claimant performed his duties between 6am-9: 30am and 5pm-6pm daily – see paras. 5-9 and 11 of DW1’S written deposition of 2ndOctober 2019 adopted in Court on 9th December 2019. Note, the language was that, the 2nd defendant was hardly around when the claimant performed his duties, meaning that, the defendants did not deny that the 2nd defendant was around at around 8:15am when the incident happened on the 27th June 2016 – see paragraph 11 of DW1’s written deposition [supra].
Note too, that, the defendants did not specifically deny the evidence that the 2nd defendant banned the claimant from using the pipe-borne water inside the kitchen. It was not also specifically denied that the 2nd defendant kicked the claimant on the fateful day. The only thing DW1 said was that, there were running taps in the apartment to which the claimant had access – see paragraphs 7 and 9 of the same written deposition. The implication is admission – Buhari v. INEC &Ors (2008) LPELR-814 (SC) 280-281, C-D.
The claimant gave evidence as shown above and two other witnesses corroborated the essential parts of his evidence – see the written depositions of CW1 and CW2.CW1 [ChidiAgboeze] stated that he, with others, visited the director of the 1st defendant [Obi Alio] on this issue on 3rd July 2016 and that he admitted the 2nd defendant committed the alleged torts, stating that 1st defendant had posted the claimant from the 2nd defendant to avoid a repeat and that, the 1st defendant equally took care of the claimant’s father, who paid the 1st defendant a visit on the issue, for the two days the father spent; and that, the issue had been closed by with 1st defendant bearing the medical bills of treating the claimant – see paragraphs 3-6 of the CW1’s written deposition of 5th October 2016 adopted in Court on 29th October 2018. The evidence of CW1 was not shaken under cross-examination. CW2 corroborated the claimant who was CW3 and also CW1 by stating that, he actively participated in the treatment of the claimant after the incident and that, in fact, it was when the claimant fainted as a result of loss of blood that he was rushed to another hospital from the 1st defendant’s clinic and that the claimant was also taken for radiological examination, while the matter was equally reported at the police station, but the director of the claimant [Obi Alio] called them to come back to office.
Further under cross-examination, CW2 testified that he was in the police team assigned to the 1st defendant and that his posting to the 1st defendant was stopped because of the part he played in this case. He stated that the claimant was not treated in the 1st defendant’s clinic but only given a first aid. He admitted further, under cross-examination, that he was a brother to the claimant and that the premises of the 2nd defendant had pipe-borne water.
On the other hand, under cross-examination, DW1, who maintained that the claimant made a report to him that he fell when he stepped on waters he accidental splashedon the kitchen floor, curiously said the report the claimant made to him on the incident was not in Court but in the office!The inference of section 167(d) of the Evidence Act is applicable here. It means, had the evidence been tendered, it would have been unfavourable to the defendants, which was why it was hidden – see Smart v. The State (2016) LPELR-40827 (SC) 18-19, C-D.He also admitted that a report of the medical scan performed on the injury was issuedto him but equally failed to tender it in support of his assertion that the claimant only had a superficial cut. The medical report too, would have clearly shown the cause of the injury at the medical history portion. It should be noted that, the parties are agreed that the 1st defendant sponsored the medical treatments, so, the report would be issued to them – see paragraphs 11 and 12 of the Amended Statement of Facts, which were not specifically denied in paragraph 13 of the Statement of Defence or any other paragraph of the Statement of Defence. The effect is admission – see Buhari v. INEC [supra]. There is also a vital gap in the evidence of DW1.
In paragraph 5 of DW1’s written deposition [supra], it was deposed that the claimant worked for five hours daily from 6am-10am to prepare the breakfast and lunch together, dish them in warmer and thereafter, retired to his apartment,only to come back in the evening,to prepare the diner around 5pm-6pm. The same DW1 later stated in paragraph 6 of his written deposition that the 2nd defendant used to leave home for work by 7am and return home from work by 8pm. It would be seen that the evidence of the defendants on a very vital point leaves a gap. It was not stated at what time when the cooking of the both the breakfast and lunch werefinished and dished in the warmer to know whether they would be ready by the time the 2nd defendant left at 7am or whether the 2nd defendant used to come back home to take his breakfast. It was not stated too, when the cleaning work commenced. The only thing stated is that the three pieces of morning work: breakfast, lunch and house cleaning were completed by 10am.
It should be noted that DW1 did no state how he came to know such very intimate personal details in the exclusive realms of the privacies of both the claimant and the 2nd defendant, to give evidenceon them! The issue of when the 2nd defendant used to eat his breakfast and whether he used to come back from work to take it or took them to work are very personal and could only be testified to by only the claimant, who is the cook and the 2nd defendant, who would eat the food; and perhaps, to a limited extent,by those in the same shifts with the 2nd defendant. It is obvious from the above that, there is a serious gap in the evidence of DW1 on whether the 2nd defendant came back to take his breakfast on the fateful day and was therefore around when the incident happened.On the other hand, CW3 [the claimant] stated under cross-examination that, the 2nddefendant came back home to take his breakfast on the fateful day. The evidence of CW3, the claimant, is very consistent and thus, filing the gapsin the data submitted by DW1 as outlined above.
In summary, the claimant gave evidence and two other witnesses corroborated his evidence. The 2nd defendant, who is in the centre of the whole saga, did not give evidence personally, but through DW1, who is not an eyewitness to the saga. No explanation was offered for the absence of the 2nd defendant. The director of the 2nd defendant, Mr. Obi Alio, did not give evidence too, though, directly involved in some of the essential issues that are equally very personal. For example, the allegations that he phoned while the mater was being incidented at the police station and ordered both the claimant and CW2, who accompanied the claimant to the police station, to come back immediately to the office and that, he suborned the police not to properly investigate the case could only be debunked by him alone. CW2 also testified under cross-examination that, this director was responsible for his punitive removal as member of the security team securing the 1st defendant because of his part in the case on 18thMarch 2019.
This piece of testimony under cross-examination was in tandem with the evidence of CW2 in his second written deposition adopted in Court on 18th March 2019 – see paragraph 5 thereof. The fact that a police officer attached to the 1st defendant at the time of the incident came to Court to testify is significant. It does not matter that CW2 [the police officer] is related to the claimant because, no law says a relation could not give evidence of what he knew, simply because he is related to the party in whose favour he is to give the evidence.All that is necessary, in such situation, is for the Court to warn itself of the danger of the likelihood of partisanship – see Idowu v. The State (2011) LPELR-3597 (CA) 69-70, D-B.
I in deed warned myself of this and noted that the demeanour of CW2 induced belief during his testimony and noted too, that, his evidence was coherent, positive and very consistent and corroborated by that of the claimant CW3 and CW1 and the evidence stood unscathed under the crucibles of cross-examination. It should however be noted that, the same thing is not applicable to the evidence of DW1, who, as a staffof the 1st defendant gave evidence for his superior and his employer on issues which were very personal to both the 2nd defendant,the alleged tortfeasor and the director [Mr. Obi Alio], the alleged perverter of justice.It is very clear that the evidence of DW1 in the circumstances was jaundiced. I do not know how DW1 would know if Mr. Obi Alio actually or not phonedand ordered the claimant and the CW2 to come back to office from the police station. I do not know how DW1 would claim to know that the 2nd defendant did not come back home to eat his breakfast the fateful day, when he admitted under cross-examination the 2nd defendant did not need his permission to leave his duty post. And he has not testified that he has telepathic or clairvoyant or omnipresence powers to know happenings, which he was not physically present when they occurred.The absence of the 2nd defendant and the director [Obi Alio] is just like the case of a man accused of impregnating a teenager, who denied and when asked to submit himself for DNA test, asked his servant to represent him.
It follows that DW1, the sole witness for the defendants was not an eyewitness to the essential events that gave rise to the cause of action herein, though, he DW1 gave evidence that the claimant reported in writing that he slipped on water on the floor of the kitchen and fell on the edge of the sink, which impact gave him a superficial cut at the lower part of the abdomen, but said the official report was in the office!This could have been the only piece of evidence that would have tilted the scale in favour of the defendants because, documents do not lie or forget, while human beings could lie and suffer from loss of memories. The presumption, I agree with the learned counsel to the claimant, is that, the official report was hidden because its contents were unfavourable to the defendants – see Smart v. The State (2016) LPELR-40728 (SC) 18-19, C-D.The state of evidence of DW1 could not therefore induce conviction in the mind of any reasonable court of law or tribunal; and I so hold.
It simply follows that; the story as narrated by the claimant is true and unassailed. On the issue that the 2nd defendant came back home to take his breakfast on the fateful day, I think, apart from those who work in the same shift with the 2nd defendant, a site engineer, nobody other than the 2nd defendant himself, is naturally in a position to deny the evidence of the claimant that he, the 2nd defendant actually came back home the fateful day to take his breakfast.Evidence of DW1 on this issue, being hearsay and inadmissible, the defendants are deemed not to have led evidence on the portions of their Statement of Defence countering the pertinent averments in the Statement of Facts – Chime &Ors v. Chime &Ors (2001) LPELR-24858 (SC) 53, A. Since the 2nd defendant did not personally give any contrary evidence, he is also deemed to have admitted the evidence that he actually came back home to take his breakfast on the fateful day and assaulted the claimant, leading to his injury as narrated by the claimant – seeGita &Ors v. Olueife&Ors (2012) LPELR-14245 (CA) 13, A-C.
This becomes more so when DW1 admitted under cross-examination that the 2nd defendant was not obliged to take permission from him or anybody before leaving his duty post. The other part of the testimony to the effect that, he the DW1 restrictedor monitoredthe movement of the 2nddefendant is logically improbable because, it is inconceivable that a person who has no authority to grant permission to another could monitor the movements of the 2nd defendant, whom he DW1 agreed, would not need his permission to go out. What for? The monitoring definitely serves no purpose, more so, when DW1 did not say he had the capacity to issue the second defendant a query. In fact, the evidence that the 2nd defendant needed no permission from DW1 to leave his duty post signifies that the DW1 cannot query the 2nd defendant for leaving his duty post to come home for breakfast.
Since a human being does nothing without a purpose, except a madman, it follows that; the evidence of monitoring and knowing the movement of the 2nd defendant by the DW1 was palpably false. It simply means, all along, DW1 was testifying on an issue he knew nothing about and therefore simply a busybody who came to the Court to perjure. And I so hold. I do not know how DW1 could testify to the eating habits of the 2nd defendant, by saying the claimant used to dish together the breakfast and lunch of the 2nd defendant in a warmer when he did not give evidence that he lived in the same apartment with the 2nd defendant nor worked in the same site with the 2nd defendant, who is a site engineer. I think the defence counsel should know better that there are perjury and hearsay in law.
On the theory proposed by the learned counsel to the defendants, and which he made the centre-point of his cross-examination of CW3 that, once a knife lies flat on a surface, it could not injure a person that falls on it, I say this proposition cannot fly, for two reasons. First is that, the learned counsel failed to adduce the scientific proof of this alleged theory. Secondly, common sense suggests otherwise. It cannot be argued with any conviction that, when a person with great force and speed suddenly falls on a knife lying flat with great impacts, the impacts of the moving force of that person and weight could not trigger a change in the position of the knife to cause injury. Definitely, the great impact on the knife by the weight of the claimant is bound to disturb the equilibrium of the hitherto flat position of the knife in such a way that it could cause injury.
The dynamics of forceful impacts of a weight on an object lying flat and the friction with the surfaces where it was lying cannot be a closed one that is knowable in advance with any certainty. I therefore hold that the evidence of the claimant that it was this knife that injured him after he fell on it due to the kick received from the 2nd defendant remained unassailed. I also do not see how DW1 could give evidence of the nature of the edge of the aluminium water-sink in the house of the 2nd defendant when he did not say he ever visited the house not to talk of the kitchen. Any evidence in this regard is pure perjury and; left unassailed, the evidence of the claimant that the edge of the sink in the kitchen in issue was blunt. I also wish to state here that the defence counsel misapprehended the case of the claimant by saying it was about negligence. That is not true. The facts and evidence adduced showed the case of the claimant to be that of intentional acts on the part of both the 1st and 2nd defendants.
I now come to the issue of complicity of the 1st defendant in the torts, harassment and abusive employment relations committed by the 2nd defendant against the claimant. Since the evidence of complicity of the 1st defendant must be postmortem the injuries in issue, it does not matter at which stage the postmortem evidence comes to light, once it happened before the suit was filed in Court. It is common ground between the parties that claimant’s solicitors visited Mr. Obi Alio, the 1st defendant’s director on 3rd July 2016 – see paragraphs 18 of the Amended Statement of Facts and 17 of the written deposition of DW1. It is inconceivable that these lawyers would visit the director simply because the claimant told them that that he slipped on water he had accidentally poured on the floor of the kitchen and sustained a superficial cut at the lower part of his abdomen when he fell on the edge of the sink in the kitchen.
It is more probable that the claimant told his solicitors the story as narrated by him in Court that, the assault of the 2nd defendant led to his injury.In any case, paragraph 17 of DW1’s written deposition actually settled the issue, when it said, “the director bluntly told the pair that the 2nd defendant did not kick the claimant as alleged or at all as he was not in the house when the incident happened…” This clearly showed that the director, as a brain and mind of the 1st defendant had been aware of the grievances of the claimant for months before this suit was filed and deliberately tried to suppress the matter.
The story of the DW1 that the claimant had a lone domestic accident is most improbable and a court of law is not bound to believe a witness with totally illogical story, which is far from the natural causes of events and their courses and inclinations, even if not challenged. Probability is definitely the litmus test of cogency and veracity of any story – seeDibiamaka&Ors v. Osakwe&Ors (1989) LPELR-940 (SC) 16, D-E. Where there are two versions of a story, probability compels a court to choose the one that is more probable and in accord with the natural causes and courses of events and that obeys the law of actions and reactions.
With the knowledge of the director of the 1st defendant that the claimant raised allegations of abusive employment relations against a very senior staff, with no evidence of any action on the part of the 1st defendant that it investigated these, even if the claimant had earlier told a contrary story of lone accident, which unfortunately the defendants have failed woefully to establish, any responsible employer of labour ought immediately to have thoroughly investigated these, by at least issuing a query to the tortfeasor, if not setting up a high-powered panel of inquiry, and have the reply to the query or the report of the panel tendered at the trial.
Up till now, the 1st defendant did not show that it has accosted the 2nd defendant,who is in the centre of the grievous allegations,with these allegations, not to talk of the 2nd defendant making a representation on the allegations. It has been busy manufacturing perjury-upon-perjury through its officers in protection of the 2nd defendant-tortfeasor and to suppress the case. For the umpteenth time, I wonder how DW1 could depose to the sort of evidence contained in paragraph 17 of his written deposition, when he did not claim he was an eyewitness to the allegations against the 2nd defendant; and yet failed to tender the purported official written report where the claimant said he had a lone accident and was not ashamed to say he left it in the office: the very fulcrum of the 1st defendant’s case!
This attitude of the 1st defendant is a clear evidence of proof of its complicity. It clearly shows that the 1st defendant has scarce regard for the humanity of the claimant but only treated his injuries in hospital in order to ensure that the supposed animal, that is how the 1st defendant viewed the claimant, did not die, in order to avoid the inconvenience of the law in the event that he died! This inference is easily drawn from the surrounding circumstances as narrated above, and particularly, the claimant’s statement at paragraph 7 of his second written deposition adopted in Court on 22ndMay 2019 as CW3, wherein he stated clearly that, the 1st defendant only gave him medical attention because it wanted him to soft-pedal on the issue. Though, the defendants, vides DW1 gave contrary evidence that the claimant was treated out of magnanimity, but I do not believe this piece of evidence because, if the 1st defendant had been very responsible, it would have had the allegations against the 2nd defendant thoroughly investigated.
I need to add that, I find complicity of the 1st defendant further proved in its taken up the defence of the 2nd defendant in his absence, by leading hearsay evidence on allegations that are patently very personal and private in nature thus, attempting to shield the 2nd defendant from the law. There is no iota of evidence that the 2nd defendant had left the 1st defendant-company or that he was unavoidably absent or any explanation whatsoever for his failure to offer defence on an action inwhich all the wrongful acts were centred on him in his personal capacities. In fact, the 2nd defendant did not depose to any written deposition. This shows that the 1st defendant believed the issue was not worthy of the time of the 2nd defendant thus, proving that it was least bothered about obeying its responsibility to provide a safe working environment and prevent abusive employment relations amongst staffs.
I found this aggravated when the 1st and 2nd defendant did not offer any scintilla of evidence against the allegations of previous abuses except that the claimant did not prove that he ever reported these to the 1st defendant.While I agree that the claimant did not prove report of the previous allegations to the 1st defendant, it does not absolve the 2nd defendant of the commission of the allegations, which he has not in any way effectively denied nor does absolve the 1st defendant of its conducts after the facts of the torts and abusive employment relations without taking any steps to forestall or get to the truth of it. It should be noted too, that, the defendants, vide their DW1, did not at all deny the fact that the 2nd defendant kicked the claimant on the fateful day – see paragraph 8 of the DW1’s written deposition.
I think the 1st defendant ought to realise that the allegations were against the 2nd defendant in person,in his personal capacity and; in situations and circumstances where the 2nd defendant alone could admit or deny these allegations; and that, thus, the evidence of DW1 on these issues were hearsay and perjury. The learned counsel cannot hide under the canopy that any employee is capable of giving evidence for an incorporated person,when an allegation of personal injury is involved and made against a specific employee of the 1st defendant-company simply because, that specific individual is an employee of a corporate personality. In such a situation, the veil of incorporation has to be lifted – see Akingade v. The State (2015) LPELR-25850 (CA) 25-26, E-A. It simply means the 1st defendant treated with extreme disdain and levity grievous allegations of abusive working environment made against it and its management staff, who is one of the brains and minds of the 1st defendant.
I think, to convince a court of law in this sort of cases, by a serious-minded company-employer, the 1st defendant ought to state the steps it took since these allegations were made against the 2nd defendant, first to its director [Obi Alio] when the two lawyers visited him and later in the letter to the 1st defendant, dated 5th August 2016, to make the 2nd defendant answer to the allegations – see Exhibits CWA, CWB, CWC, CWD, CWE & CWF – which were received 10th August 2016, while this suit was filed 5th October 2016. A visit by the claimant’s lawyers preceded these letters. So, the 1st defendant had adequate notice of the allegations of abusive employment relations made against its senior staff long before this suit was filed 10th October 2016.
Even if the allegations were false, which is not conceded, it shows gross irresponsibility on the part of the 1st defendant that it did nothing, absolutely nothing, to have the 2nd defendant react to the allegations. At least, no evidence of whatever it did was tendered. This gross dereliction of duty circumstantially and irresistibly point to only one fact, that the 1st defendant was complicit: period.It was not bothered on the employment welfare of the claimant. And it shows clearly, it was not bothered about providing safe and secure working environment/working relations. I therefore hold that the 1st defendant was complicit as alleged.
I now come to the argument of the learned counsel to the defendants that the accommodation of the 2nd defendant does not qualify as working place and that, the events in issue narrowed down to private personal affairs of the 2nd defendant, for which the 1st defendant could not be held vicariously liable. This argument on the part of the defendants’ learned counsel amounts to blowing hot and cold. If the learned counsel knew that the 2nd defendant must rise or sink with an issue that personally concerned him, why did the 1st defendant have to defend the 2nd defendant, where it was obvious that the 2nd defendant only could personally answer the case? This proved that, in the least, the 1st defendant was actually in support of the 2nd defendant, if not actually encouraging him and that, it did not see anything wrong in the conducts of the 2nd defendant. Otherwise, the 1st defendant would have only answered to the allegations directly against it alone and would have logically left the 2nd defendant to tackle his aspects personally. Its conduct here is that of an outsider that cries more than the bereaved. It must suffer the fate that awaits a fly that follows the dead to the grave.
In any case, the learned counsel to the defendants did not seem to understand the case being made by the claimant and the concepts of workplace and safe working environment.Section 254C-(1)(a) of the 1999 Constitution[as altered] provides that this Court shall have exclusive civil jurisdiction over matters:
“Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith…” [Underline for emphasis]
Section 254C-(1)(d),(f), (g), (h) & (2) of the 1999 Constitution[as altered] complemented the above provisions by giving this Court additional jurisdiction to prevent unfair labour practices, enforce the fundamental rights provisions of the Constitution in employment relations, prevent discrimination at workplace and, to apply international labour and employment conventions, treaties, protocols ratified by Nigeria and enforce labour standards. Nigeria ratified C155 – Occupational Safety and Health Convention, 1981 – see “Ratifications of ILO conventions: Ratifications for Nigeria” at www.ilo.org. Article 3(c) of C155 says, “The term workplace covers all places where workers need to be or go by reason of their work and which are under the direct or indirect control of the employer…” It is not in doubt that the 1st defendant employed the claimant as a steward/cook and attached him to the 2nd defendant in his 1st defendant’s company-provided accommodation.
Therefore, the place of work of the claimant is the official accommodation provided by the 1st defendant for the 2nd defendant.Thus, this accommodation is under both the direct and indirect control of the 1st defendant. Unfortunately, C155 did not cover issues of harassment and violence at workplace. It only seemed to cover issues arising out of purely work accidents. But incidentally and admirably, Article 7 of C155 mandates periodic reviews of C155 with regards to the standards of occupational safety and health at work in accordance with the prevailing circumstances. C190 – Violence and Harassment Convention, 2019 – at www.ilo.org - which now provides for issues of violence and harassments at place of work, is one such improvement in the standards of safety in the workplace, as mandated by Article 7 of C155.Article 3(a)&(e) of C190 provides that:
“This Convention applies to violence and harassment in the world of work occurring in the course of, linked with or arising out of work:
(a) in the workplace, including public and private spaces where they are a place of work:
(b) …
(c) …
(d) …
(e) in employer-provided accommodation…”
Article 1(a) of C190equally defines ‘violence and harassment’ in the workplace thus:
“(a) the term ‘violence and harassment’ in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment…”
The C190 Conventionhas not been ratified by Nigeria, but the facts that, it is an improvement on C155, thus, filling the gaps therein contained and that, Article 7 of the C155 mandates periodic reviews of the C155, makes C190 an extension of C155, ratified by Nigeria and therefore,impliedly ratified and applicable in Nigeria. That this is so, is brought beyond per adventure when Article 11(a) of the C190 classified matters of violence and harassment at workplace as belonging to legislations on occupational safety, health and discrimination at workplaces thus, amending C155 – Occupational Safety and Health Convention, 1981by the additional standards contained in C190 – see section 4(1) of the Interpretation Act. Apart from this, C190 is equally applicable in Nigeria by virtue of the constitutional mandate placed on this Court to apply ILO’s standards without the requirements of ratification and ILO’s standards, being manifested in conventions, treaties, protocols and standards – see section 254C-(1)(h) of the 1999 Constitution [as altered].
This Court is equally bound by section 254C-(1)(f) of the 1999Constitution[as altered] to prevent unfair labour practices and also to enforce international best practices. International best practices in labour and employment relations are found in ILO’s conventions, treaties, protocols and standards.In addition, C190 is actually an elaboration of section 254C-(1)(a) of the 1999 Constitution [as altered],which gives this Court jurisdiction over issues arising from workplace, particularly with regards to the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith, in conjunction with section 254C-(1)(f), which mandates this Court to prevent unfair labour practice and enforce international best practices in employment and labour relations. In essence, ILO C190merely gives flesh to the dry bones of section 254C-(1)(a), (f)&(h) of the 1999 Constitution [as altered], as a mirror of international best practices, which section 254C-(1)(a), (f)&(h) of the Constitution actually envisioned.
As could be seen from the foregoing, the arguments of the learned counsel to the defendants showed lack of adequate knowledge of the innovations brought about by the Third Alteration Act to the 1999 Constitution. There is absolutely no allegation made by the claimant that is not covered under the legal regime of modern employment relations in Nigeria. In any case, even before the advent of the Third Alteration Act, the claimant has the vires, even under the erstwhile law, to bring an action in torts against both the 1st and 2nd defendants for the injuries suffered and also to bring action to challenge breach of his fundamental rights against policy of the 1st defendant that seeks to humiliate and subject the claimant to discriminatory and inhuman treatments on account of his race – see section 42(2) of the 1999 Constitution. Now, under the present employment regime, as introduced by the Third Alteration Act, the claimant’s right to challenge discriminatory treatment in employment relations is accentuated by section 254C-(1)(a), (f)&(h) of the 1999 Constitution [as altered].
Article 9 of the C190 mandates employer of labour to provide safe working environment and adopt measures to ensure that workers are not subjected to violence and harassments at workplaces,while Article 10(d) mandates metingout appropriate sanctions to violators. Articles 4(e)&(f) and 10(b)of C190also mandate access to justice, adequate remedies and sanctions. Let me add, before rounding up on issue 2, that, I don’t see that any issue of contributory negligence was proved. To prove that the knife was not supposed to be kept on the table, it must be shown that the purpose for which it was kept on the table was wrong or inappropriate. In any case, issue of kicking the claimant is the issue to which contributory negligence could be attached and has nothing to do with where the knife was placed. It has not being shown what the claimant contributed to the act of being kicked to sustain contributory negligence or that, he ought to take precaution not to be injured by a knife kept on the table with the knowledge that the 2nd defendant must always kick him as he fancied.
In view of all above, I hold, without reservation that, the claimant has proved his case on the preponderance of evidenceon the causes of action, which are amply recognised by law. Thus, the claimant has the day on issue 2 while the defendant lost the day. What remained to be examined noware the reliefs to which the claimant is entitled and the quantum. I therefore move to issue 3.
ISSUE 3: WHETHER THE CLAIMANT IS ENTITLED TO THE RELIEFS CLAIMED?
Axiomatically, once a claimant has proved his case, the corollary is that he must be awarded some reliefs though, not necessarily the reliefs claimed or the exact breadth of the reliefs claimed.
Without doubt, the claimant is entitled to compensations for the physical injuries, psychological trauma and degradation of his dignity and inhuman treatments suffered from the defendants. The only issue is the quantum of damages. The claimant has assessed his injuries at N20million damages.
The rights violated are protected by section 254C-(1)(a), (f) & (h) of the 1999 Constitution[as altered] and Articles 3(a)&(e) and 10(b)&(d) of the C190, which mandate that, adequate,appropriate and effective remedies and sanctions be provided against the breach of the right against violence and harassment at workplace. Sections 13, 14, 15 and 19(d) of the NICAalso provide for the grant of appropriate remedies in the absence of both statutory and common law remedies, where the facts of the case justified such remedies. The violations in view here are statutory, nay constitutional,as earlier shown above. In addition, the ILO has mandated that, when there is breach of fundamental convention, the remedies to be attached must be punitive and dissuasive – see Xavier Beaudonnet ed., International Labour Law and Domestic Law: A training manual for judges, lawyers and legal educators (Turin, International Training Centre of the ILO, 1st edition, 2010) at 157, where the ILO stated the position thus:
“From an international labour law perspectives, two important aspects must be taken into account in deciding on the redress:
1) The discriminatory consequences of the discrimination in employment and occupation must be eliminated;
2) the penalties must have a dissuasive effect on potential perpetrators of discrimination.”
Thus, exemplary and punitive damages are implied. And this becomes more so, when constitutional braches are involved, as in the instant case.I hold the view that whenever there are constitutional provisions commanding positive actions or restraining negative conducts, and such constitutional provisions are breached, as in the instant case, such breachesare fundamental breaches, that must be remedied by punitive measures, the Constitutionbeing the grundnorm, particularly where it is proved that, the conducts or breaches were done intentionally with reckless disregard to the Constitution or with malice aforethought. In Odiba v. Azege (1998) LPELR-4465 (SC), the Supreme Court opined on the purposes of damages and when to award exemplary or punitive damages:
“…The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages, vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. [See 15, B-F]
Exemplary damages, in particular, also known as punitive or vindictive damages can apply only where the conduct of the defendant merits punishment…But exemplary damages, to some extent, are distinct from aggravated damages whereby the motive and conduct of the defendant aggravating the injury to the plaintiff would be taken into consideration in the assessment of compensatory damages…Accordingly, aggravated damages in this type of case can do most, if not all of the work that could be done by exemplary damages…” [See 25-26, D-B]
The law is that exemplary damages must be awarded in a situation where there is statutory authorization or where the conduct in issue is oppressive, arbitrary or unconstitutional or had been calculated with a view to making profit – see Adindu&Ors v. Wabara (2014) LPELR-22861 (CA) 46-47, D-A. In the instance case, it has been shown that the defendants conducts in issue amounted to flagrant disregard of the constitutional provisions enshrined in sections 42(2) and 254C-(1)(a), (f) and (h) of the 1999Constitution [as altered] and Articles 3(a)&(e) and 10(b)&(d) of the ILO C190.
The ILO C190 provides for the award of dissuasive remedies as buoyed up by section 13, 14, 15 and 19(d) of the NICA. Hence, the claimant is entitled ordinarily to exemplary damages in the circumstance of this case. I will like to state too, that, in pre-ThirdAlterationActthat is, precisely in 2008, the Supreme Court, in Shell Petroleum Dev. Co. Ltd V. Chief Victor Sunday Olarewaju [2008] LPELR – 3046 [SC] 28, A, approved the award of N3million general damages made by the trial court against the defendant for instigating the police to arrest and detain the plaintiff on allegations arising from termination of employment. That is 12 years ago. The value of the N3million then, if reckoned with the present situation, would be more than N10Million – see Afolabi v. Alaremu (2011) LPELR-8894 (CA) 45-46, A-C, to the effect that, courts takes into consideration inflationary trends in granting damages. And it must be realised that the issues involved herein go beyond contract and dovetailed into torts, where aggravated or punitive damages are usually awarded. And the facts herein met all the trappings of aggravated and punitive damages.
In addition, the claimant is eminently entitled to general damages. I however take into consideration that the claimant did not suffer a permanent physical injury but I note that the trauma of being treated as subhuman, on account of his race, might linger on for life in the psyche of the claimant. It is an indelible harrowing experience. In view of all the above, I award the sum of N7million[Seven Million Naira only] as damages against the defendants jointly and severally. In further view of all the above, I hold that the claimant has sufficiently proved his case to be entitled to the reliefs claimed, except relief (e) because, the claimant has left the employment in question and I cannot see how the defendants would be in a position to continue to oppress him to warrant the grant of the prayer sought therein and relief (f), which I only granted in part. I therefore decline to grant relief (e) in its entirety.
CONCLUSION
In view of all that I have said and my findings above, I reiterate that, I grant all the reliefs claimed by the claimant except relief (e), which deals with restraining the defendants from further infringement of the claimant’s rights and relief (f), which I grant to the tune of N7million[Seven Million Naira] only. I also assess the cost of this action at N500thousand. The judgment sums fall due immediately. I equally award 15% post-judgment interest rate per annum on the judgment sums until fully liquidated.
Judgment is accordingly entered.
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HON. JUSTICE Oluwakayode Ojo AROWOSEGBE
Presiding JUDGE
ENUGU DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA
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