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REPRESENTATION C. H. AUSTIN-MODO with AKINIMO Esq. for the claimant HENRY EDET for the defendant JUDGEMENT The Claimant, by a General Form of Complaint dated and filed on 1st July, 2013 along with the Statement of Facts, List of Witness, Witness Deposition, and List of Documents approached the Court for the following reliefs: 1. A declaration that the Claimant (Monday Udoh) is entitled to adequate and reasonable compensation for the damage to his eyes, physical and psychological pains, trauma and loss of pleasures of life in the course of his employment with the defendant. 2. An Order compelling the defendant to carry out a comprehensive treatment of the eyes of the claimant till the claimant regains his visual acuity. 3. N10, 000,000.00 (Ten Million Naira) compensation to the plaintiff (Monday Udoh) general damages for the injury and damage to his eyes, physical and psychological pains, trauma and loss of pleasures of life in the course of his employment with the defendant. 4. The cost of this action. claimant case on the record is that the Claimant joined the Defendant’s several years ago as a Trade Engineer and since then he has been in a cordial employee-employer relationship with the defendant having been pay-rolled and has been collecting his salary as at when due. On the 26th of January, 2011 while the claimant was working at a site of the defendant in Oruk Anam, where a bridge was being constructed along East-West Road, he got exposed to chemical substances which affected his eyes. The Claimant avers that while pumping the chemical into the bridge, the Operator of the machine did not cover the machine properly and due to the pressure of the chemical, the machine valve broke and the chemical spilled into the claimant face, causing burns to both his eyes which has near-totally impaired his eyesight. On the said day, after the incident, he was rushed to Mercy Hospital Eye Centre in Abak Local Government Area by the company’s staff and was later admitted for treatment in that hospital, were he spent over a week at the hospital as his condition become precarious and he was at risk of losing his eyes completely. The Claimant went to the defendant with the drug prescription from the hospital to bring to the notice of the defendant as the enormity of the amount was not such as he could undertake alone, the defendant’s refused to pay back the debt the Claimant has incurred on his health condition from that time till 28/6/2012 which is about one year and six month and the payment was done after the defendant received the plaintiff’s solicitors letter dated 7/5/2012. The defendant served on him a letter dated 14th May, 2012 titled “Stood Off” of which letter purports to lay-off the claimant for a period of 7 month from May to November 2012 without pay. The defendants filed their STATEMENT OF DEFENCE filed on 7th October, 2013. The case of the defendants on the pleadings is the Claimant is a casual employee, with whom the Defendant never entered into any formal contract of employee, with whom the Defendant never entered into any formal contract of employment. He was issued the general identification card issued to all workers (both casual and permanent/established staff) of the Defendant for security purposes, ease of movement in and out of the Defendant’s premises/work site and for identification. The Defendant avers that in paragraph 12 the Claimant was placed on sick leave with effect from 3/2/2011, on discharge from hospital. He was asked to resume duty on expiration of the sick leave, unless the sick leave was renewed. His sick leave expired on or about 17th of February, 2011, and he neither resumed work nor tendered Medical Report extending his sick leave in spite of the continuous payment of his salary. The Defendant admitted paragraph 13 to 16 but only to the extent that the Claimant tendered a receipt for medical expenses dated 29/7/2011 in the sum of N158,000 (One Hundred and Fifty Eight Thousand Naira) only and the expenditure was refunded. Other averments in these paragraphs are denied by the defendant. The defendants aver that they routinely maintain the Machines used by its workers to ensure their operational efficiency and safety. It was the duty of the Claimant and his co-worker to strictly ensure that the machine was operated in accordance with safety guidelines. The Claimant and his co-worker failed to observe safety standard by not covering the machine well to avoid/prevent the accident. The Defendant vehemently denied paragraphs 17, 18, and 19 of the Statement of Facts as the averments within the exclusive knowledge of the Claimant, that the money referred to in paragraph 19 is imaginary and without particulars and has no connection with what the defendant has paid already as his medical bills and salary. Denying paragraphs 20 of the Statement of Facts, defendant averred that the purported letter was withdrawn as it was not intended for him in the first place. His salary has continued to run unabated till date. His pay slip for August, 2013 already pleaded, shall be relied on at the trial. Reacting to paragraph 21, 22 and 23 of the Statement of Facts, defendant emphasized that the information therein are speculative and within the exclusive knowledge of the claimant. The only documents made available to the defendant on the state of health of the Claimant are the EXCUSE DUTY, dated 03/3/2011; MEDICAL REPORT, dated 30/3/2011 and the most recent report which was prepared in anticipation of this litigation titled MEDICAL REPORT/DISCHARGE CERTIFICATE dated 11/6/2013; which came almost 2 years after the first medical report. The Defendant states categorically that the reliefs sought by the Claimant are speculative, unfounded, and an attempt at gold digging and should be dismissed as unmeritorious with substantial cost. The claimant filed in reaction a REPLY TO STATEMENT OF DEFENCE dated and filed on 22nd November, 2013. The Claimant therein averred that the statement of defence is full of falsehoods and blatant lies and manifestly clear that the defendant is clearly frustrating the claimant and denying paragraph 4 of the Statement of Defence, the claimant avers that his salary was only paid when his lawyers wrote to the defendant and subsequently they stopped paying after August 2013 salary. The Claimant maintains that he and his co-worker strictly adhered to the safety guidelines as they covered the machine with the materials provided which include a rubber hose and a binding wire as opposed to all well structure iron pipe and a tap to control the flow of chemicals. The claimant in reaction to the defendant para 9 the claimant stated that he was only given two (2) weeks sick leave but the claimant was unable to return to work , or go back to extend the leave as his situation was so precarious;- that he could not go out or move about owing to the doctor’s instruction. A letter from the Doctor is hereby pleaded. The Claimant states that after presenting the receipts to the defendant’s Officer-in-Charge of insurance, Mr. Oloko, the claimant was advised to borrow money and vehemently denies ever being given any money by the defendant as refund. The defendant is giving notice to produce the document which the claimant signed to receive the sum of money. Claimant had clearly demanded the sum of N160, 000.00 when the defendant neglected and abandoned the Claimant was not treated neither was he compensated for the loss of his eyes by the negligence of the defendant in whose employ his eyes were damaged. The claimant denies Paragraph 12 and avers that the defendant is economical with the truth. The said document/letter was intended for the claimant as his name was clearly written on it. The letter was not withdraw and salaries of the claimant wasn’t unpaid. The said salary has also been stopped as the claimant is not paid his salary from 1st September 2013 to date. The claimant denies paragraph 15 of the defendant statement and states that he is not a gold digger and he is not speculative. The claimant maintains that he has provided concrete evidence and at trial shall prove his case to show that he is entitled to his claims and the defendant is running from pillar to post in its further attempt to justify its non-payment of the claimant hospital bill, further treatment of the claimant and compensation after it had accepted liability. At the trial the claimant testified as CW1 adopted his written statement on oath and tendered eight (8) other exhibits. Claimants Exhibits:- S/N TENDER BY NICN/CA/120/2013 DOCUMENT’S DATED DATE TENDER MARK 1. Claimant Counsel Witness on oath 13/5/2001 13/5/2015 CW1 2. Written statement on oath 22/4/2015 13/5/2015 C2 3. Identity card Oct. 2012 “ C3 4. Payment slips 11/8/2015 “ C4 5. Medical report from Mercy Hospital 30/3/2011 “ C4- C42 6. Negative & printer photos “ C5 7. Stood off letter 14/5/2012 “ C6 8. Solicitors letter for compensation 7/5/2012 C7 9. Witness on oath 18/6/2014 CW2 10. Written statement on oath 4/4/2014 “ C8 11. Signature’s 18/6/2015 “ C9 Under cross examination the claimant was asked to sign his signature and he produced Exhibit C9 and stated that all the three different signatures were his own and even the CW1 also testified that the defendants paid his medical bills while he was on admission and continued to pay his salary even though he was not going to work and that he was aware of the amount the Insurance Company offered him as compensation but that he rejected it because he considered the amount insulting, the claimant also testified that he was unaware that the company had augmented the amount. The claimant called two other witnesses the Jurat maker CW3 who testified as to reading out the claimant’s written statement on oath and testified that he fully understood the contends proceeded to administer the jurat in line with the evidence Act. The claimant also called Dr. Victor Joseph Udoh who testified as CW. Under cross examination CW2 testified that that he had examined and managed the claimant from the 2nd day of his admission in Mercy Hospital. And that the Medical report was prepared by the ophthalmological nurse. Describing this as not being a usual practice. The defendants called one witness Lawrence Apata, the site Manager who testified as DW adopted his written statements on oath and proceeded to tender two (2) Exhibits. Defendant Exhibits:- 1. Defendant Witness on oath 18/6/2014 DW 2. Written statement on oath 28/11/2014 “ D1 3. Salary slip August,2013 “ D3 4. Letter from Insurance Company “ D2 At the close of trial parties were directed to file final written addresses in line with the rules off this court. The DEFENDANT’S FINAL WRITTEN ADDRESS was dated and filed on 30th September, 2015. Wherein the defendants formulated for determination on sole issue;- Whether from facts, evidence and circumstance of this case the claimant has proved his case to warrant the grant of the reliefs sought. The learned Defence Counsel Henry Edet Esq. Relying on ANEKWE v. NWEKE (2014) 9 NWLR (PT. 1412) 393 S.C., submitted that the evaluation of evidence involves only what has been put forward and admitted into exhibit by the court. That in the absence of any document to the contrary, only Exhibits C4-C4 (2) are worthy of consideration as it relates to the medical condition of CW1. He contended further that the admission of CW2 that it took him 21/2 years before issuing the medical report contravenes the provisions of Sec. 83 (3) of the Evidence Act as the document Exhibit C4(1) was made in contemplation of this suit and ought to be inadmissible. Arguing that the several contradictions in the claimant’s case leave much to be desired and that it is trite that not all contradictions will result in the rejection of the evidence of a witness as enunciated in EGBESIMBA v. ONUZURIKE (2002) 15 NWLR (PT. 791). Regarding the claimant’s contention in his Reply to Statement of Defence that the defendant only rushed to replace the burst hose with an iron pipe after his accident occurred, Counsel for the defence submitted that pleadings unsupported by evidence go to no issue and are deemed abandoned. It is Counsel Henry Edet’s submission that the employer is under a duty to take reasonable care for the safety of the employee in all circumstance of the case so as not to expose him to unnecessary risk. IYERE v. BENDEL FEEDS & FLOUR MILLS LTD (2008) 18 NWRL (PT. 1119) 300 @ 326, PARAS. A-C. He submitted further that the burden of proving that the defendant was negligent is on the claimant, though he need not prove strictly that the breach of duty of care was directly responsible for his injuries but it is sufficient if he shows that it materially contributed to his injuries. However, that the claimant has failed woefully to do this throughout this case. KABO AIR LTD. v. MOHAMMED (2015) 5 NWLR (PT. 1451) 38 @ 47 HELD 10. To the defendants the claimant’s averments in his Reply to Statement of Defence were not accompanied by any written Statement on Oath in support of such averments as the position of the law is that such averments go to no issue and should be discountenanced. ODOM v. PDP (2015) 6 NWLR (PT. 1456) 527 @ 536 HELD 7. Learned Defence Counsel submitted that damages as defined in NICON HOTELS LTD. v. NDDC LTD (2007) 13 NWLR (PT. 1051) 237 @ 208, PARA. D is compensation or award given by process of law to a person who has suffered loss or injury whether to his person or property through unlawful act or omission of another. And that as it stands, the claimant has not led any evidence to show that the defendant acted unlawfully or omitted to act in any way which resulted to his injury. He submitted that the sum of #526,584.40 (Five Hundred and Twenty Six Thousand, Five Hundred & Eighty Four Naira, Forty Kobo) due payable to the claimant is adequate consideration and compensation; and that the courts across board are weary of awarding double damages. EMIRATES AIRLINE v. NGONADI (NO. 1) (2014) 9 NWLR (PT. 1413) 429 @ 440 HELD 16. Regarding the claimant’s relief 4, cost of this action, counsel submitted that the same principle of double compensation applies also. EMIRATES AIRLINE v. NGONADI (NO. 1) (supra). Furthermore, that there is no shred of evidence adduced by the claimant in support of this head of claim as it is in special damages and ought to be specifically pleaded and the claimant has also claimed no specific figure and has led no evidence in support of the claim. That the claimant has tendered no document to show the payment of any legal fees or any other fees in this action to warrant a claim therefrom, thus, there is no basis for awarding any money in respect of this head of claim. GUINNESS v. NWOKE (2000) 15 NWLR (PT. 689) 135; HAWAY v. MEDIOWA (NIG.) LTD. (2000) 13 NWLR (PT. 683) 77. The CLAIMANT’S FINAL WRITTEN ADDRESS was dated and filed on 26th June, 2015. Wherein the Claimants adopted the lone issue as distilled by the defendant to wit. Whether from the facts, evidence and circumstances of this case, the claimant has proved his case to warrant the grant of reliefs sought. Learned Counsel to the claimant C. H. Austin-Modo Esq. submitted that evidence given outside pleadings goes to no issue and that the issue of #300,000.00 was never mentioned in the Statement of Defence and is not even in the Statement on Oath, therefore, this evidence obtained under cross-examination goes to no issue. ADEOSUN v. GOV., EKITI STATE (2012) 4 NWLR (PT. 1291) 581 @ 586 RATIO 4. He submitted that in civil case of this nature, the duty of this Honorable Court is to evaluate the evidence of the parties and their witnesses to ascertain which one is more probable and credible and to decide which one to believe. TUKUR v. UBA (2013) 4 NWLR (PT. 1343) 90 @ 129, PARAS. D-C. With regard to paragraph 2.11 of this address, the negatives of Exhibit C5. Learned claimant counsel urged the Court to hold that the Court is entitled to look at every document in its file/record. UZODINMA v. IZUNASO (NO. 2) (2011) 17 NWLR (PT. 1275) 28 @ 40 RATIOS 9 & 10. To the claimant the facts contained in the medical report had not been contradicted by the defendant who is just alleging that the treatment has been completed without any evidence to back up the assertion; submitting that oral evidence cannot be admitted to alter the contents of written documents. ADDA v. LIMAN (2012) 4 NWRL (PT. 1290) 243 @ 262, PARA. D. On the award of general damages, claimant’s counsel submitted that the Supreme Court thoroughly examined the meaning of general damages and its award in the case of ENGR. SAMUEL D. YELAJU-AMAYE v. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LIMITED & ORS. (1990) 6 S.C.N.J. 149 @ 172, per Karibi-Whyte, JSC; JUBRIN GARBA & ANOR. v. TIMOTHY KUR (2003) 11 NWLR (PT. 831) 280 RATIOS 1, 6, 7 & 8 @ Pp. 284-286; ACME BUILDERS LTD. v. KADUNA STATE WATER BOARD & ANOR. (1999) 2 NWLR (PT. 590) 288 RATIO 2 @ 293. Learned Counsel Austin- Modo Esq. opined that the question that should bother any fair and just mind is whether the sum of #529,584.40 the defendant is offering as compensation for the injury the claimant sustained in the course of his duty in the defendant’s company is reasonable and adequate for the injury sustained and loss of his job? Is there any justice in such paltry sum seeing the claimant almost lost his eyes and may never work as nobody can employ him with blurred vision? CHIEF OF AIR STAFF v. IYEN (2005) 6 NWLR (PT. 922) 496 @ 558. He also contended that the defendant on oath admitted that the claimant was his employee only to turn around claiming the claimant was a casual worker. BOYE v. ADEYEYE (2012) 12 NWLR (PT. 1314) 357 @ 367 RATIOS 16 & 17. With regard to medical report and its admissibility, counsel to the claimant urged the Court to hold that where a maker of an Exhibit during the pendency of a suit has no financial interest or other tainted interest in the outcome of the matter, the document is admissible. NBC v. UBANI (2014) NWLR (PT. 1398) 421 @ 459 – 461, per Chukwuma-Eneh, JSC. On the principles guiding the Court in assessment of damages in personal injury cases, counsel cited the case of SAMSON EDIAGBONYA v. DUMEZ (1986) 6 SC 145 @ 164 – 166, per Karibi-Whyte, JSC. Learned Counsel urged the court to look at the entirety of evidence of the parties as contained in the statement on oath because facts are the arrow-head of the law. It is very trite that evidence of facts not pleaded is of no judicial use. On this note Counsel calls for the reproduction of the entire evidence before the court. On parties adopted their respective Final Written Addresses and adumbrated their positions accordingly. The matter was then reserved for judgement. Court’s Decision Having carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this judgement and specific mention would be made to them where the need arises. From the reliefs claimed and the other issues raised by the claimant, what this Court is being called to resolved can be said to be whether the defendants were negligent towards the claimant, and if this question is resolved in the affirmative, there is the question whether the claimant is thereby entitled to reliefs claimed from the defendants. Before I address the merits of this case I will pay some consideration to certain connotations raised by the parties in the course of this trial. The claimant tendered seven (7) exhibits; C1 is the claimants statement on oath, while C2 is the claimants identity card No 70794 issued by the defendants indicating that the claimant was put in the category of Trade of Engineer in the defendants Opuoko Site. C3 was the claimant’s payment slip for the month of August 2012. ExhibitC4 was also a medical report from Mercy Hospital dated 30th February 2011 stating that the claimant had been admitted and treated for chemical burns in both eye and that his left eye had a visual acuity was reduced to 6/12 as a result of the cornea scar from the chemical burn and recommending follow up visits.C4(1) was a medical report from the same institution dated 11th June 2013 which indicated that claimant had been a patient admitted on the 27th January 2011with a Chemical injury to his left eye, admitted for two weeks and was being discharged as an out patient on that date with 6/50 vision. Exhibit C4(2) is a sick leave certificate granting the claimant two weeks sick leave to resume normal duties unless the certificate was renewed. Exhibit C5 are two picture and an extract of a reel of negative, the picture clearly show the claimant with his left eye bandaged and half of his right eye forced closed by the plaster. The 2nd picture show the claimant without the dressed eye clearly sitting on a hospital bed, neither picture was time stamped to enable the court make any determination of the exhibit. Exhibit C6 is the defendant’s letter addressed to the claimant notifying him that due to slow down in the defendants operation the claimant would be stood off work from the 15th of May 2012 to the 21st November 2012. Exhibit C7 is the claimant’s solicitor’s letter to the defendant dated 9th May 2012 asking for N50, 000, 000.00 as compensation. Exhibit C8 is the witness statement on oath as CW2 the Doctor Victor AKpan while Exhibit C9 is the specimen of his signature made in open court. The defendants tendered 3 exhibits, Exhibit D1 is the defendants witness statement on oath, Exhibit D2 is the claimant pay slip for the month of August 2013 while Exhibit D3 is a Letter from AIICO Insurance Company presenting the sum of N524, 684, 40 as their settlement offer in respect of the claimants injury together with a 3 page discharge voucher, During trial the defendant had took up CW2 while during cross examination on whether he in fact signed Exhibit C8, the court made available a plain sheet of paper and the CW2 was invited to sign his signature, which was admitted into evidence as Exhibit C9. The witness CW2 supplied three separate and different specimens testifying that he used all three Signatures and went on to state that he also signed the written statement on oath. In the case of AKINSANYA & ANOR Vs. FEDERAL MORTGAGE FINANCE LTD. [2010] LPELR 3686 CA the court had course to consider and uphold the definition of ‘Signature’ given by Blacks Law Dictionary 7th Edition at page 1387 thus “A person’s name or mark written by the person or at the persons direction. Any name, mark or writing used with the intention of authenticating a document”. That being the case the court with reliance on the above position of the law has not to rely of exhibit C8 on the grounds of signature. The defendants have made heavy weather of the fact that the claimant did not tender any letter of appointment to argue that there is no evidence of the nature of the claimants appointment with the defendants, the defendant went further to plead that the claimant was a casual worker. The law is trite that the effect of failure to produce the contract of employment would be detrimental to the party praying for reliefs on it before the court. Employee rights can only be determined under the terms and condition of employment. LTD. Vs NIG. GAS. CO. DUDUSOLA 18NWLR (Pt. 957) 292 To the defendant, the claimant by not tendering a letter of appointment they have failed to establish the basis on their claim, the position of the law is clearly that the effect of the absence of letter of employment of a claimant in an action for wrongful termination/dismissal will depend on the nature of evidence adduced before the court. Failure of a claimant to tender his letter of appointment will not be fatal to his case if he is able to show by evidence that his/her clams are based on the Employer’s Handbook and not the Letter of Employment…It is the defendant who asserts that the terms and conditions of the claimant’s employment are contained in the Letter of Appointment that needs the Letter of Appointment to ground his case and not the claimant. DURUGBOR Vs. ZENITH BANK PLC (2014) 40 NLLR (PT. 122) 225 the case went on to state that “Letters of appointment generally in this nation are very short, often one or two-page documents which by their nature do not and cannot contain all the conditions of service. The terms and conditions of employment set out in a company’s handbook; form the basis of the contract of employment between the company and its employees. SPECOMILLS TEXTILES, IKEJA v. NATIONAL UNION OF TEXTILES, GARMENT & TAILORING WORKERS OF NIGERIA (DIGEST OF THE NATONAL INDUSTRIAL COURT (1978 – 2006 – DJNIC) 334 @ 335, RATIO 1, referred to.] In this instant case defendants failed to tender any condition of employment and neither did the claimant. I am aware that “In a written contract of service, the court will not look into any matter outside the terms stipulated and agreed therein between the parties to the contract in determining the respective rights and obligations of the parties. SIDMACH TECHNOLOGIES NIGERIA LTD v. ONUORAH (2014) 46 NLLR (PT. 148): IBAMA Vs. SPDC (2005) 17 NWLR (PT. 954) 364 @ 379; CADBURY NIG. PLC v. OLUBUNMI O.ONI (2012) LPELR 19821 referred to.] In this case there is nothing to suggest that the parties ever reduced their relationship to writing bearing in mind that contracts can be written, oral by parole or inferred from the conduct of parties see the case of SHEENA SECURITIES COMPANY LTD Vs. AFROPACK (NIGERIA) LTD. [2008] LPELR 3052. (insert from email) The law is that “in the absence of a written contract of employment resource may be had to relevant trade custom and practice”. DANIELS Vs. SHELL BP. PET. DEV CO. [1962]1 All NLR 19. Before the court can go any further it is necessary to determine the status of the claimant. The claimant tendered Exhibit C2 his identity card, which clearly states that he was staff of the defendants, he also tendered in evidence Exhibit C3 his play slip for the month of October 2012. The defendants on their own part pleaded that the claimant was a casual worker and DW testified that they (the defendants) had continued to pay the claimant after incident every month up until August 2013. From the evidence before the Court and the conduct of the parties I find and hold that the claimant had an employment relationship and the claimant is admittedly an employee of the defendants on a monthly basis. From the evidence before the Court, the claimant was injured while at work on 27th January 2011. The photographs in Exhibits C5 shows the claimant in a hospital with a his left eye bandaged and his right eye shut and half covered by the plaster/bandage. The claimant tendered Exhibit C4-C4(1) as supporting medical evidence however, the claimant asserts that while working on a bridge construction of the defendant a co-worker Emmanuel Uniang used the pumping machine to pump chemical into the bridge that was being built but failed to cover the machine properly and due to the pressure of the chemical the machine valve burst and the chemical contents spilt on to the claimants face causing burns to both his eyes The fact of injury to the claimant is not in doubt. The fact that the injury occurred at work is also not in doubt. This accordingly makes the injury one that is work related having occurred in the course of employment; and I so find and hold. See MR. CHARLES NWAOSA V. PORTS & TERMINAL MULTISERVICE LTD & ANOR UNREPORTED SUIT NO. NIC/LA/262/2012 the judgment of which was delivered on July 17, 2013. What, therefore, this Court is to decide is whether the injury to the claimant was as a result of the negligence of the defendants or that of the claimant. The argument of the claimant is that the defendants are responsible and liable for the incident while the defendants’ case is that the claimant’s injury was caused by his professional recklessness, negligence and non-adherence to the safety policies of the defendants given that the claimant is required to wear safety goggles and protective apparel which he did not and that they (the workers) did not use the machine properly. Whose negligence, the claimant’s or defendants’, caused the claimant’s injury? This remains the question. As indicated, the case of the defendants is that the claimant’s injury was caused by the claimant’s professional recklessness, negligence and non-adherence to the safety policies of the defendants given that he did not comply with the basic safety rules of the 1st defendant which include but is not limited to wearing of safety goggle and other protective wears. In other words, the claimant was not wearing these safety gears at the time of the accident to him. This line of reasoning is, however, not in consonance with the authorities. I will address this subsequently. In addition the defendants argued that the burden of proving that the defendant was negligent is on the claimant, though he need not prove strictly that the breach of duty of care was directly responsible for his injuries but it is sufficient if he shows that it materially contributed to his injuries, arguing further that the claimant testified that he usually wears goggles and protective clothing and that the is indicative that the claimant neglected to wear safety goggles hence the arguing that by providing safety and protective equipment there was no failure on the part of the defendant under the duty of care to the claimant. This submission falls short of the legal requirement as I stated above, I find particularly when one considers the position of the law BY GREEN PACK RUBBER IND. LTD V. OSSAI [2004] 2 FWLR (PT. 194) 668, SECTION 23 OF THE FACTORIES ACT 1990 enjoins that no person should be employed at any machine or in any process being a machine or process liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed, or he is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process. This case went on to lay down that section 17(1) of the Factories Act imposes an obligation on a company to securely fence every dangerous part of any machinery to secure the safety of every person employed or working on the premises or a device should be provided that will protect the operator or the person from coming into contact with the dangerous part of the machinery. Now by IITA v. Amrani [1994] 3 NWLR (Pt. 332) 296, the standard of an employer’s duty to his worker is to see that reasonable care is taken – the scope of that duty extends to the provision of safe fellow workers, safe equipment, safe place of work and access to it and a safe system of work. The case additionally held that a place of work which is safe in construction may become unsafe through some obstruction being placed on it or through the presence of something on the floor which makes it slippery. Western Nigeria Trading Co. Ltd v. Ajao [1965] All NLR 524 then goes on to hold that an employer’s duty at common law is not only to provide the employee with goggles, but also to see to it that they are used. In like manner, it is the duty of the defendants in the instant case not only to provide safety goggles and overall to the claimant but to ensure that the claimant used them. This, the defendants failed to do in the present case. The defendants are accordingly negligent in that regard; and I so find and hold. The defendants raised the issue of Adequate compensation contending that the sum of N524, 684, 40 proferred by the insurance company Exhibit D3 plus the N300,000.00 the company included amounts for adequate compensation submitting that the amount was arrived at in their final address by relying on the Workmen’s compensation Act. Now, submission of the defendants in this regard is most curious particularly the reference to the Workmen’s compensation, as the incident occurred on the 29th January 2011 while the Employees Compensation Act of 2010 came into force on the 17th December 2010. It is this Act that enable the claimant come to this court Section 12 ECA 2010, and make a claim in negligence, Section 55 ECA. Now to the merits of the case. Having found that the defendants were in fact negligent WESTERN NIGERIA TRADING CO. LTD V. AJAO SUPRA the question to be determined is the claimant entitled to the reliefs sought. The claimants reliefs are as follows; 1. A declaration that the Claimant (Monday Udoh) is entitled to adequate and reasonable compensation for the damage to his eyes, physical and psychological pains, trauma and loss of pleasures of life in the course of his employment with the defendant. 2. An Order compelling the defendant to carry out a comprehensive treatment of the eyes of the claimant till the claimant regains his visual acuity. 3. N10, 000,000.00(Ten Million Naira) compensation to the plaintiff (Monday Udoh) general damages for the injury and damage to his eyes, physical and psychological pains, trauma and loss of pleasures of life in the course of his employment with the defendant. 4. The cost of this action. As regards Relief 1; A declaration that the Claimant is entitled to adequate and reasonable compensation for the damage to his eyes, physical and psychological pains, trauma and loss of pleasures of life. A declaration is a pronouncement based on the law or legal issues of a circumstance, in the instant case the claimant has not put forward or argued any legal, contractual, custom or practice, the last two being matters requiring proof by evidence Section 16 Evidence Act, roll the basis on which the court can ground such an order in which case the court can only declare as per it’s finding. That the claimant is entitled to compensation/damages for negligence of the defendant in failing to ensure the use of goggles and other protective wear. With regard to Relief 2; an Order compelling the defendant to carry out a comprehensive treatment of the eyes of the claimant till the claimant regains his visual acuity. The claimant has failed to put forward any reliable medical diagnostic and prognostic evidence of the nature of his injuries and the recommended treatment in order to found this relief Exhibits C4 (1) and (2) fall short of the mark. The claimant in his pleadings stated that he was running the risk of serious impairment in both his eyes, that he unable hold a gaze and this eyes run with tears uncontrollably yet no medical evidence was presented to this court as to the a cause of the claimants condition, the projected rate of detoriation if untreated and the prospect of treatment with a medical recommendation. This court’s role is adjudicatory not investigative. See Unreported NICN/LA/33/2015 ADEBOGBOLA SAMPSON AJOSE Vs. ENERGO NIGERIA LTF delivered on the 18th February 2016, It is only with information such as listed above can this court attempt to make any pronouncement as to the treatment required by the claimant up to when he regains his visual acuity, Relief 3 is for N10, 000,000.00(Ten Million Naira) compensation to the plaintiff (Monday Udoh) general damages for the injury and damage to his eyes, physical and psychological pains, trauma and loss of pleasures of life. The claimant has not shown the court how he arrived at ten million naira and as such this relief cannot be granted as couched. Before I end this relief I must express my charging as to the dearth legal enterprise from both counsel in this matter the claimant brought no evidence to support their position of the medical state of the claimant while the defendants failed to present any evidence no rebuttal, no medical expert to profer an alternative or even explain the claimant’s evidence or little there is and not even to utilize the provision of the law of this court to call for an independent medical investigation to determine the position rather they preferred to rely on innuendo, and indirect reference such as lack of oath and call for evaluation of evidence, this should not make for a good practice. By the averments, the defendants acknowledge that it is a necessity for the claimant to wear safety goggles while at work the law requires the defendant to ensure that they are infact worn. In consequence of this finding and holding, the claimant has succeeded in making out his claims for reliefs 1, and this remains the case irrespective of Exhibit D3 frontloaded by the defendants. What then is the measure of damages regarding the finding and holding on negligence? And is the claimant then still entitled to any form of damages for the negligence of the defendants? Section 19(d) of the National Industrial Court (NIC) Act 2006 permit this Court to make “an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear”. Section 254C(1)(b) of the 1999 Constitution, as amended, gives this Court jurisdiction over the “Workmen’s Compensation Act or any other Act or Law…replacing” it. The injury complained of by the claimant occurred on 27th January 2011. This means that the cause of action arose on that said date. By OBIUWEUBI V. CBN [2011] 7 NWLR (PT. 1247) 465 the law for determining a case is the law as at the time the cause of action arose. This means that the law for determining the instant case is the Employee’s Compensation Act (ECA) 2010, not, for instance, the Workmen’s Compensation Act Cap. W6 LFN 2004 which was replaced by the ECA. By the ECA the claimant can approach this court directly to claim in negligence as stated above, I find that this is a proper case in which this court can make an order for payment of a lump sum under section 19 as the claimant has clearly suffered some injury which in the mind of a reasonable man the claimant should be compensated in damages by the defendant liable in damages I find. In the case of MR. CHARLES NWAOSA V. PORTS & TERMINAL MULTISERVICE LTD & ANOR (supra). this court held that the employees right to compensation is not taken away by the medical expenses defrayed by the employer This means that whatever payments the defendants may have made to wards or in respect of the claimant’s medical expenses do not take away the right of the claimant to compensation (although that case was determined to be workmen’s compensation the principle of law is as good in this case). And I so find and hold. However the claimant did not make any claim or tender any evidence in support of any of the medical expenses he said he paid for; and so I cannot make any order for any refund of such an expense. In all, and for the avoidance of doubt, the claims of the claimant partially succeed and only in the following terms:- 1. It is declared that the 1st defendants were negligent in the operation of their business and as such failed to take reasonable care for the safety of the claimant which resulted in the injury of the claimant. 2. It is ordered that the defendants shall pay to the claimant as compensation for his injury the sum of N4, 000, 000.00 only. 3. Cost of this suit is put at N50, 000.00 4. All sums ordered to be paid within 30 days of this judgment. Judgment is entered accordingly. …………………………………… Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division