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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: February 21, 2016 SUIT NO: NICN/LA/678/2012 BETWEEN Hope Oluigbo -Claimant AND George Best Auto Supply (Nig) Ltd -Defendant REPRESENTATION Y.A Ajayi (Miss) Asst Chief State Counsel (OPD) with O.T.Akinbolade (Miss) for claimant. Oludare Oyelola for defendant. JUDGEMENT The claimant filed this complaint on the 24th December 2012 against the defendant. By his statement of facts he is seeking the following reliefs: 1) An order mandating the defendants to comply with the Pension Reform Act 2004 in respect of the claim. 2) A declaration that the contract of employment between the claimant and the defendant is still subsisting. 3) A declaration that the non-payment of the claimant’s remuneration from November 2010 till date is unlawful. 4) A declaration that the claimant is entitled to be paid his full remuneration, allowances and entitlement until judgment is given. 5) A declaration that the defendant did not comply with the provisions of the Factory’s Act regarding occupational safety and health. 6) A declaration that the claimant is entitled to further corrective medical treatment/reconstructive surgery to take care of the amputation and rehabilitation of his right hand. 7) An order mandating the defendant to pay for the corrective medical treatment/reconstructive surgery and the rehabilitation of the claimant’s right hand. 8) An order mandating the defendant to pay the claimant his remuneration (November 2010 – till date) as special damages. Particulars of Special Damages for the claimant:- November – December 2010 N15,000 per month N 30, 000 2011 N15,000 per month N180, 000 2012 N15,000 per month - N180, 000 __________ N390, 000 AND 9) An order mandating the defendant to pay the claimant the sum of N9,000,000.00 (Nine Million Naira) as general damages for the mental torture, agony, loss of self-esteem, deteriorating health, inability to continue to work in order to fund his university education, and the inability to cater for himself and his family members as a result of the malfunctioned machine belonging to the defendant and the refusal to pay him any entitlement as pleaded in the statement of facts. Accompanying the complaint is the statement of facts, witness statement on oath, list of witness and copies of documents be relied on. The defendant entered appearance on the 25th February 2013 and filed its statement defence, list of witnesses and witness statement on oath. Parties joined issues and the matter went to trial. The claimant’s case on the pleadings is that he is a student and he was employed by the defendant as a Machine Operator on the 28th May 2009. He pleaded that on the 2nd February 2010, he was the only worker on duty in the Factory and he had the sole responsibility of operating two Machines; that while he was operating one of the two Machines, one of them malfunctioned and his right hand got trapped in the Machine. He averred that he managed to free himself from the Machine and he reported to the Manager Mr Ejikeme Chuks who instructed the defendants Driver to take him to De New Aiyetoro Medical Centre where he was admitted. The claimant pleaded that on the 2nd March 2010 the 3rd and 4th fingers of his right hand were amputated as a result of the multiple injuries he sustained from the malfunctioning Machine and he was discharged on the 7th March 2010. The claimant pleaded that the defendant stopped paying his salary from the 1st November 2010 and has refused to respond to repeated pleas for payment of his outstanding salaries and allowances. He averred that he petitioned the Office of the Public Defender (OPD) for legal assistance and the OPD wrote the defendant on the 23rd February 2011 inviting it for a meeting to discuss his petition but the defendant refused to accept delivery of the letter. That the OPD wrote two more letters on the 15th July 2011 and the 5th October 2011 to the defendant inviting it for a meeting. The claimant pleaded that the defendant has not formally terminated his appointment and that the failure to pay him his salaries and allowances has caused him mental torture, humiliation, agony, loss of self esteem deteriorating health and inability to cater for his family. He pleaded that the defendant’s failure to provide corrective, reconstructive surgery for his right hand and also to rehabilitate him has deprived him of furthering his education to University. The claimant testified in support of his case. His evidence in chief was by his witness statement on oath which he identified and adopted. It was in the exact terms of the pleadings. Under cross-examination, the claimant told the court he was employed orally as a Machine Operator. He denied being employed as a water sachet bagger. The claimant told the court that the Machine has malfunctioned before and that it was not correct that he operated the machine without any directive from the defendant. He said that when the Machine malfunctions, he calls Mr Chuks Ejikeme who repairs it. The claimant told the court that the Secretary of the defendant took him to the Hospital after the accident and the defendant paid the bill. He said that after his fingers were amputated, he was reporting to duty and he was being paid but could not do any work because of the injury. He said his salary was N13,000 monthly and that he received N3,000 as stipend every weekend after the injury. He denied receiving N3,000 as a water sachet bagger before and after the injury. The claimant admitted that he did not tell the defendant he was a student when he was employed. The claimant then closed his case. The case of the defendant on the pleadings is that the claimant was employed informally as a casual worker in charge of bagging of pure water sachets on the 25th May 2009 and not as a Machine Operator. The defendant averred that his responsibility was as a bagger of pure water sachets after production. The defendant pleaded that the claimant was never given the responsibility of operating any machine but operated the Machine on his own volition; and that none of its Machines ever malfunctioned. It pleaded that the claimant incorrectly operated a Machine without permission or instructions from the factory manager and the Machine Operator who excused himself for a short time on the day of the accident. The defendant pleaded that the claimant’s injury was self-inflicted as the claimant inappropriately and illegally handled the Machine with the resultant injury to his fingers; that the amputation was consented to by the claimant and his father. The defendant pleaded that it was responsible for the treatment of the claimant and that the claimant was not on a salary but weekly allowances as a casual staff. It averred that the claimant’s allowances were paid up to 18th September 2010 after the accident when he was no longer working but this could not be continued because the claimant stopped coming for it as a result of its poor financial position. The defendant pleaded that the claimant informally terminated his employment and all his allowances as a casual worker were paid till the date the claimant of his own volition terminated his employment; and that it has no contract of employment with the claimant. The defendant averred that the claimant’s employment is not covered by the Pension Reform Act and that about N135,110.00 was spent on treating the claimant. The defendant called its Factory Manager Chukwujioke Chukwu (DW) as its witness. His evidence in chief was by his witness statement on oath whichhe identified and adopted. It was in terms of the pleadings. Under cross-examination DW told the court that the claimant worked with the defendant and that the defendant produces sachet water. DW told the court that the claimant was injured and was taken to Hospital. He said the defendant paid the Hospital bill. DW said it was not correct that he asked the claimant on several occasions to take charge and operate the Machine. DW admitted that it is his responsibility to make sure that the machines work perfectly. He said the machines are working perfectly but that he did not file any document in court to show that they are in good condition and working perfectly. The defendant then closed its case and the parties were directed to file their final addresses. The defendant’s final address is dated 1st June 2015 and filed the same day. The claimant’s final address is dated 8th July and filed the same day. The defendant’s reply on points of law is dated and filed on the 22nd Jul 2015. The parties adopted the arguments contained in their final addresses. Learned counsel to the defendant raised the following issues for determination: 1. Whether having regards to the pleadings and evidence adduced before the Court, the claimant has proved his case to merit any of his declarative reliefs. 2. Whether having regard to the pleadings and evidence adduced before the Court, the claimant has proved that the machine of the defendant actually malfunctioned. 3. Whether the claimant was negligent in operating the defendant’s sachet water machine without authorisation. He submitted that the claimant has not adduced any evidence to show that he is entitled to the declaratory reliefs he is seeking neither has he shown that he contributed to the Pension Scheme as provided by the Pension Reform Act. He further submitted that the claimant failed to plead material facts upon which he relied for his claim that the machine malfunctioned and as such the claim cannot be sustained. He cited Akilu v Fawehinmi (No 2) (1989) 2 NWLR (Pt 102) 122, Hamza Lawal v Kafaru Oke [2001] NWLR (Pt 711) 88 at 110, Rinco Construction Co v Veepee Ind Ltd [2005] 9 NWLR (Pt 929) 85, Ngilari v Mother ca Ltd [1993] 8 NWLR (Pt 311) 370. Counsel argued that the claimant did not prove on the balance of probabilities that he was not negligent in operating the defendant’s machine without authorisation. He cited Longe v FBN PLc [2006] NWLR (Pt 967) 228, Imam v Sheriff [2005] 4 NWLR (Pt 914) 180. He submitted that the claimant has not discharged the legal burden of proof on him and so this action must fail citing A-G Anambra v Onuselogu Ent Ltd [1987] 4 NWLR (Pt 66) 547. In reply, learned counsel to the claimant submitted two issues for determination as follows: 1. Whether the defendant owes the claimant a duty of care. 2. Whether the claimant has proved his case to be entitled to the claims and reliefs sought. She began by submitting that a reply to the statement of defence is used by a claimant to respond to new issues raised in the statement of defence; and where no new issues are raised there is no need to file a reply if its only purpose is to deny allegations of facts in the statement of defence citing Unity Bank Plc v Mr Edward Bouari NSCQLR Vol 33 [2008] 1296. She submitted that the employer has a duty to take reasonable care for the safety of its workmen; provide a safe place to work and a safe system and method of working. She cited I.I.T.A v Amrani [1994] 3 NWLR (Pt 332) 296. She submitted that the defendant has not adduced evidence to show that the machine the claimant was operating was in good working condition and that the defendant did not comply with the safety provisions in Sections 16 (2), 17 (1) and 47 of the Factories Act. She referred to Section 11 of the Pension Reform Act and argued that the defendant did not deduct at source monthly contributions from employee’s salary and remit it along with its own contributions. She referred to Section 7 of the Employee Compensation Act 2010 and the case of Ekeuzor v Union bank of Nigeria Plc [2014] 42 NLLR 796 and submitted that the claimant is entitled to an award of damages for the injury and wrong done to him in the course of his employment. In reply, learned counsel to the defendant submitted that the claimant has not proved his case. He argued that the principle of res ipsa loquitur does not avail the claimant in this action founded on contract. I have carefully considered the processes filed, the demeanour of the witnesses and their evidence, written submissions and authorities cited. The issue for determination is whether on the pleadings and evidence the claimant is entitled to judgement. I will begin by stating the already established principles of law that parties are bound by their pleadings; and the burden of proof in a civil suit is primarily on the claimant who wants judgement to be entered in his favour. See Sections 131(1), 133(1) of the Evidence Act and Elegushi v Oseni [2005] 14 NWLR (Pt 945) 348. There is no dispute between the parties that the defendant orally employed the claimant as a casual worker in May 2009. The claimant has testified that he was employed as a Machine Operator. I believe the testimony of the claimant that the defendant employed him as a Machine Operator. There is no evidence of his wages or salary before the court neither has it been specifically pleaded. The claimant has admitted that after his fingers were amputated on 2nd March 2010, he received a weekly stipend of N3,000 from the defendant after the accident till September 2010. The claimant’s testimony is that he could not work as a result of the injury. The defendant stopped paying him the stipend from 1st November 2010. I find that what is being referred to as the claimant’s remuneration from November 2010 is the stipend of N3,000 which the defendant stopped paying. I do not believe the evidence of DW that the claimant stopped coming to collect the stipend. What is more probable is that since the claimant was not rendering any service to the defendant, it decided it could no longer continue to pay the stipend and so stopped. The main reliefs sought by the claimant are declaratory. In declaratory actions, the claimant must succeed solely on the strength of his case. The burden of proof on the claimant in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the claimant fails to establish his entitlement to the declaration by his own evidence. See Dumez Nig Ltd v Nwakhoba [2008] 18 NWLR (Pt 1119) 361 at 373, Nwaogu v Atuma [2013] 11 NWLR (Pt 1364) 117. The claimant has not established that he is entitled to a declaration that his employment is subsisting; a declaration that the non payment of his remuneration is unlawful; or a declaration that he is entitled to be paid his full remuneration until judgement. The law is settled that an employer has a statutory duty under the Factories Act and a duty at common law to take reasonable care to ensure the safety of his employees/workmen and in particular in respect of the place of work, plant, system of work and fellow employees and ensure that he is not exposed to the risk of injury. See Suleiman v Hongzing Steel Company Ltd [2015] 59 N.L.L.R (PT 204) 232, Adetona v Edet [2004] 16 NWLR (Pt 899) 338, Wilson and Clyde Coal Co v English[1938] AC 57, Nasmith v London Film Production Ltd [1939] 1 All ER 794, Iyere v Bendel Feed and Flour Mills Ltd [2008] 18 NWLR (Pt 1119) 300 at 326. The claimant has not adduced any cogent evidence to establish that the machine he was operating malfunctioned and that the defendant did not comply with the provisions of the Factories Act thereby causing his injury. A mere averment without evidence in proof of the facts pleaded is no proof and goes to no issue. The averments will be taken as having been abandoned. See Help Ltd v Silver Anchor Ltd [2006] Vol 5 MJSC 171. Furthermore, the Medical Report Exhibit C8 did not state that the claimant requires reconstructive surgery neither did it refer him for further treatment. I hold that the claimant having failed to establish that he was injured by the wrongful act of the defendant is not entitled to general damages. The issue of Pension was not raised in the pleadings and as such it is deemed abandoned. I must at this juncture comment on the decision of the Office of the Public Defender (OPD) to file this suit on behalf of the claimant as a declaratory action contract and the manner in which this action was conducted. While it is not in dispute that the claimant was employed as a casual worker by the defendant, sustained his injuries in the defendant’s Factory and was taken to hospital by the defendant, it is surprising that this suit was not instituted as an action in negligence or a statutory claim under the Employee Compensation Act 2010 and pleadings filed accordingly. The result is that by the way the action was founded the claimant has been denied any form of compensation for the injury he sustained in the workplace. For all the reasons stated above, the claimant’s case fails in its entirety. It is dismissed. Each party is to bear its own costs. Judgement is entered accordingly. _____________________________ Hon Justice O.A.Obaseki-Osaghae