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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><u><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">REPRESENTATION<o:p></o:p></span></u></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Marcel Umeh for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Modupe Koku Mrs. for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> </span></u></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">JUDGMENT</span></u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">1. Introduction & Claims <o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Claimant commenced this suit vide his General Form of Complaint dated 19/6/13 and Statement of Facts dated the 1/12/13. The Claimant seeks the following reliefs - <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. A declaration that the Defendant is negligent and in breach of its duty of care to the Claimant which resulted to the damage, amputation and permanent incapacitation of the Claimant’s hand. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. A declaration that the Claimant is entitled to compensation for the damage, amputation and permanent incapacitation of his hand which occurred during the course of employment with the Defendant. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. A declaration that the Defendant is in breach of its contract of employment for failing to give the mandatory one month notice or salary in lieu of notice upon termination of the contract of employment. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. An order compelling the Defendant to pay the sum of Five Million Naira (=N=5,000,000.00) as compensation for damage amputation and permanent incapacitation of the Claimant’s hand. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. An Order compelling the Defendant to pay the sum of Thirty-Five Thousand Naira (=N=35,000.00) for breach of contract for failing to give the mandatory 21 days notice of termination or salary in lieu of notice to the Claimant. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. An Order compelling the Defendant to pay the Claimant the sum of Thirty-Five Thousand Naira (=N=35,000.00) being the Claimant’s salary for the month of March 2014. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">7. An Order compelling the Defendant to refund the sum of Twenty Two Thousand Nine Hundred and Seven Naira Fifty Kobo (=N=22,907.50) being the amount illegally deducted from the Claimant’s February salary. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Claimant’s originating processes were also accompanied by a list of witness, written Statement on Oath of his witness and list and copies of documents to be relied on at trial. The Defendant reacted by filing a Memorandum of Appearance and Statement of Defence dated 6/2/14 accompanying same by the Defendant’s witness written Statement on Oath, list of documentary evidence and copies of the documents referred to in the Statement of Defence. By Leave of the Honourable Court granted on 16/3/15, the Defendant filed an amended Statement of Defence dated 17/2/15, Defendant’s witness amended statement on oath sworn to on 2/4/15 and an additional list and copies of Defendant’s documentary evidence dated of dated 16/2/15. As a result of this, the Claimant filed an amended reply to statement of defence dated 16/4/15, further statement on oath deposed to on 21/4/15 and Claimant’s additional list of document dated 16/4/15. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">2. Case of the Claimant<o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The trial of this case commenced on 15/9/15 when the Claimant testified as <i>CW1, </i>adopted his witness deposition dated 1/2/14 as his evidence in chief as well as his further witness deposition dated 21/4/15 as his additional testimony. Witness tendered 21 documents which were admitted as exhibits and marked as <i>Exh. C1 - Exh. C21. </i>The case for the Claimant as revealed from the pleadings is that he was employed as a Technician by the Defendant; that the Defendant did not provide protective gears for him to use in the discharge of his duties; that he sustained injury to his middle finger in an accident while working for the Defendant; that the said injury led to damage, amputation and permanent incapacity of his hand; that the Defendant failed to discharge its duty of care to him which led to his permanent incapacitation; that he was subsequently dismissed from his employment by the Defendant without being paid compensation for the damage and incapacitation and salary in lieu of notice of termination and that the Court should order payment of compensation to him as well as payment of one month notice in lieu of notice of termination.</span><b><span style="font-size:48.0pt;font-family: "Times New Roman","serif""><o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Under cross examination,<i> CW1</i> stated that he was 61 years old; that was employed as a Technician; that he was a Technical graduate; that he had been been using the machine that chopped up his hand for about 2 years; that that was his first time of having accident on the machine; that it was the same finger that was injured that was amputated in the hospital; that the staff know when to remove their hands as users of the machine; that the reports he made to the Defendant were after the accident; that he wrote the reports personally using his right hand; that the accident affected his left hand; that he wrote all the reports and were received by the Management; that NCP’s Department is a Panel Control Construction Section; that he applied to be transferred there; that he could make use of his both hands; that he was in the hospital both as in-patient and out-patient for one week before he was recalled but still continued to receive treatment; that the Defendant paid the hospital bills; that he later started treating himself though he did not so inform the Defendant after they terminated the contract of the hospital.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">3. Case of the Defendant<o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Defendant opened its defence on 8/3/16. One Olugbenga Arowosegbe was called as <i>DW1. </i>Witness adopted his witness deposition dated 2/4/15 as his evidence in chief and tendered 12 documents as exhibits. The documents were admitted without objection and marked as Exh. D1-Exh. D12. The case for the Defendant is that it provided the Claimant with necessary protective gears but that the Claimant refused to use same; that the Claimant was negligent in his duty and that it is not indebted to the Claimant in any sum at all.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Under cross examination, witness stated that he had been working with Defendant for 3 years; that he was not a staff of the Defendant at the time of the injury complained of; that he was not a technician; that <i>Exh. C7 </i>was never sent to the Defendant; that <i>Exh. C11</i> did not get to the Head Office of the Defendant; that the Defendant has a tradition at the Head Office when documents are received they are registered stamped with date and time; that Claimant’s hand was not amputated after treatment; that Claimant was transferred to <i>Health and Safety Department</i> so as to make his schedule very light for him; that Claimant was not paid for March 2014 because he has not completed his exit clearance; that Claimant’s duty did not involve carrying heavy duty equipment; that Claimant's duty involved mainly electrical cabling; that as a Safety Officer, he was to see to the health and safety of the environment and of other staff; that he was also to make recommendation on safety and health issues to the Defendant; that Claimant was compensated for the injury suffered and that the Defendant employ people with disability to work as Technicians. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">4. Submissions on behalf of the Defendant<o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The final written address of the Defendant was filed on 5/4/16. Learned Counsel set down the following issues for determination -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Is the Claimant's action competent having regards to the non-adherence with Section 2 (2) of the <i>Employee's Compensation Act? <o:p></o:p></i></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Has the Claimant proved before the Court that the Defendant herein was negligent?. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Has the Claimant proved before the Court his disability or his entitlement to compensation in the sum of =N=5,000,000.00 (Five Million Naira) as the compensation claimed in the Claimant’s Statement of Fact?.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Before setting down the issues for determination, learned Counsel put forward what he called ''Preliminary Observation''. According to Counsel, an order was made on 15/9/15 that the Claimant Counsel should oblige the Defence copies of Claimant documentary evidence listed under Claimant's additional list of documents specifically marked as <i>Exh. C20 </i>and <i>Exh. C21; </i>that the Defendant raised objection at the point of tendering these exhibits on the ground that the said exhibits were not front loaded or attached to any processes served on the Defendant and that Claimant's Counsel refused to comply with the order of Court. Counsel urged the Court to totally expunge <i>Exh. C20 & Exh. C21 </i>from the records of Court and thus discountenance them. Counsel referred to <i>Order 19 Rule 4, National Industrial Court Rules, 2007 & Olaniyan v. Oyewole (2008)5 NWLR (Pt. 1079) 114.<o:p></o:p></i></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 1 as set down for determination, learned Counsel referred to S. 2(2), <i>Employee's Compensation Act, 2010</i> and submitted that the law that governs a cause of action is the applicable law at the time the cause of action arose and that the <i>Employee's Compensation Act 2010 </i>was the applicable as at 26/5/11 when, according to paragraph 6 of the Statement of Facts, the cause of action arose. Counsel cited <i>Obiuweubi v. CBN (2011)7 NWLR (Pt. 1247) 465 at 495. </i>According to learned Counsel, the Claimant ought to follow the procedure as set out in S. 55(1), <i>Employee's Compensation Act, 2010; </i>that where<i> </i>a procedure is laid down in a statute for doing an act, that procedure must be followed citing <i>Adesnoye v. Adewile (2006)7 SC (Pt. 3) 19 & Cross River University of Technology v. Obeten (2011)15 NWLR (Pt. 1271) 588 at 608 </i>and that not having complied with the statutory conditions precedent, the action is premature and should be struck out citing <i>Mr. Mashood Ilupeju v. PZ Cussons Nigeria Plc (unreported Suit No: NICN/LA/406/2012 </i>delivered on 21/3/14 & <i>Madukolu v. Nkemdilim (1962) SCNLR 311 at 348. </i>Counsel urged the Court to so hold.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting issue 2, learned Counsel submitted that the incident leading to this suit was an accident as stated in paragraphs 7 and 8 of the statement of facts; that an accident is an unintended and unforeseen injurious occurrence that does not occur in the usual course of event or that could be reasonably anticipated citing <i>Julius Berger (Nig.) Plc v. Ogundehin (2014)2 NWLR (Pt. 1391) 388 at 433; </i>that the Defendant was not negligent as the onus is on the Defendant to prove same, citing <i>Abubakar v. Joseph (2008)13 NWLR (Pt. 1104) 307 at 350 </i>and that the Claimant having failed to produce evidence of negligence on the part of the Defendant, the Court should resolve this issue in favour of the Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 3, learned Counsel submitted that the Claimant has failed to prove his incapacity before the Court to entitle him to compensation in the sum of =N=5,000,000.00. According to Counsel, there is no medical evidence before the Court to justify his claim; that however by <i>Exh. D2 </i>only the 4th finger of the Claimant was injured and has not affected his ability to use the same hand; that by the evidence of the Claimant under cross examination he could use both hands effectively and without hindrance or disability and that the condition for entitlement to compensation is that the employee has been rendered incapable of earning a living on a point of finality as a result of death or disability partial or total, citing S. 7(1), Employee's Compensation Act, 2010. Counsel submitted that the Claimant has failed to prove his claim and urged the Court to so hold. Furthermore, learned Counsel argued that even under the <i>Employee's Compensation Act, 2010, </i>the Claimant is not entitled to any compensation, referring to S. 23, <i>Employee's Compensation Act, 2010. </i>Finally, learned Counsel prayed the Court to dismiss the claims of the Claimant same not having been proved.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">5. Submissions on behalf of the Claimant<o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On 25/4/16, learned Counsel to the Claimant filed the Claimant's final written address. In it, Counsel set down 3 issues for determination as follows -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the Defendant is not in breach of its duty of care that resulted to the injury, damage, amputation and permanent incapacitation of Claimant’s left Hand. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the Claimant is entitled to salary for the Month of March, 2014. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the Claimant has proved his case to be entitled to the reliefs as per his Writ of Petition and Statement of Fact.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 1, learned Counsel stated that the evidence led by the Claimant attested to the fact that the middle finger of Claimant's left hand was chopped off by a drilling machine while working on Defendant's 300/350 KVA generator reconstruction set and that the accident was as a result of the poor working condition of the Defendant's factory and lack of necessary protective tools, referring to <i>Exh. C6. </i>Counsel added that <i>DW1 </i>testified that he was not in the employment of the Defendant when the Claimant was injured and the fact that the Defendant tendered Claimant's medical report is a confirmation of the fact that the Claimant's finger was chopped off and amputated as a result of the accident referring to <i>Exhibits D2, D3 & D4. </i>Learned Counsel urged the Court to resolve this issue in favour of the Claimant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Issue 2 is whether the Claimant is entitled to salary for the month of March, 2004. On this Counsel stated that Claimant's employment was terminated in March, 2014 after working for 21 days without pay, referring to <i>Exh. C3. </i>According to Counsel, <i>DW1 </i>admitted under cross examination that Claimant's appointment was terminated in March, 2014 due to some reasons. Counsel urged the Court to resolve this issue in favour of the Claimant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting issue 3, learned Counsel submitted that the Claimant gave cogent evidence of the failure of the Defendant to pay his salary for the month of March, 2014 having worked for 21 days before his appointment was terminated; that Claimant adduced credible evidence during trial by <i>Exh. C6, Exh. C7 & Exh. C11 </i>of the negligence and breach of duty of care by the Defendant which resulted in the injury, amputation and permanent incapacitation of his left hand. According to Counsel, to succeed in a claim in negligence, the plaintiff must prove that the Defendant owed him a duty of care; that there is a breach of that duty of care; and that the plaintiff sustained an injury as a result of the breach of that duty, citing <i>A.M.Co. (Nig.) Ltd v. Volkswagen (Nig.) Ltd (20107 NWLR (Pt. 1192) 102.</i> It is the submission of learned Counsel that it is not in dispute that the Defendant owed the Claimant - an employee a duty of care while working for the Defendant referring to <i>Exh. C2 & Exh. C5; </i>that the Defendant breached that duty of care by their failure to provide the Claimant with the necessary protective tools and equipments, citing <i>Exh. C6-C11</i> and that the Claimant sustained an injury as a result of the Defendant's negligence and breach of duty referring to <i>Exh. D2. Exh. D3 & Exh. D4.</i> Counsel argued that the Claimant's claim is independent of the <i>Employee's Compensation Act 2010; </i>that the cause of action against the defendant is based on negligence as a result of breach of duty of care and that nothing prevents the Claimant from recovering damages against his employer in this Court independently of the Act, citing <i>Nadim Chagaury v. Ibrahim Yakubu (2006)3 NWLR (Pt. 966) 142</i>.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Learned Counsel added that general damages in personal injury cases are sums of money paid as compensation for the loss suffered by the injured person which includes but not limited to the pain and suffering citing <i>Iyere v. B.F.F.M. Ltd (2008)18 NWLR (Pt. 1119) 206; </i>that there is no evidence before the Court to the effect that the Claimant was compensated by the Defendant and that the Court should resolve this issue in favour of the Claimant. Learned Counsel finally prayed the Court to enter Judgment in favour of the Claimant. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">6. Reply on Points of Law<o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">A 5-page reply on points of law was filed on behalf of the Defendant on 5/5/16. In the reply address, learned Counsel submitted that s. 12(1), <i>Employee's Compensation Act, 2010 </i>referred to by the Claimant is clearly different from S. 25, <i>Workmen Compensation Act; </i>that <i>Employee's Compensation Act 2010 </i>repealed the <i>Workmen Compensation Act;</i> that the <i>Workmen Compensation Act </i>is no longer in force in Nigeria and that the Claimant has not followed due process in invoking the jurisdiction of this Court hence this suit is incompetent and should be struck out.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif""> </span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">7. Decision<o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I have carefully read and understood all the processes filed by learned Counsel on either side. I also diligently reviewed and evaluated all the exhibits tendered and admitted in this case. In addition, I listened to the testimonies of witnesses called in this case, watched their demeanor as well as listened attentively to the oral argument canvassed by both learned Counsel for the parties. Having done all this, I narrow the issues for the just determination of this case to be as follows -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the right of the Claimant to seek redress in this Court is abridged.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the Claimant has proved his case to be entitled to any or all the reliefs sought in his writ.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Before proceeding to approach the issues for determination, it is imperative to comment on the Defendant's <i>Preliminary Observation. </i>Learned Counsel to the Defendant had alleged that this Court on 15/9/15 made an order that the Claimant Counsel should oblige the Defence copies of Claimant documentary evidence listed under Claimant's additional list of documents specifically marked as <i>Exh. C20 </i>and <i>Exh. C21; </i>that the Defendant raised objection at the point of tendering these exhibits on the ground that the said exhibits were not front loaded or attached to any processes served on the Defendant and that Claimant's Counsel refused to comply with the order of Court. I have read again the record of Court on 15/9/15 and I could vividly recollect what transpired. This Court did not make any such order as alleged by learned Counsel. While learned Counsel claimed that the said documents were not frontloaded, the Court found them to be part of its record on pages 191 and 192. Indeed, if Counsel had taken the pain to apply for the record of proceeding of 15/9/15, the error of attributing to the Court an order that was never made would certainly have been avoided.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The first issue for the just determination of this suit is whether the right of the Claimant to seek redress in this Court is abridged. If the right of the Claimant to institute this action is abridged, it means then that this Court lacks the requisite competence in the first place to adjudicate on same. The Defendant had alluded to failure of the Claimant to comply with S.2(2) of the <i>Employee's Compensation Act.</i> Learned Counsel to the Defendant also referred to S. 12(2) of the <i>Employee' Compensation Act, 2010</i> in his reply address. <i> </i>Let me state clearly the obvious that the law is relatively settled that the applicable law at the time of accrual of a cause of action remains the one to be used by the Court in determining the rights and liabilities of the parties. A party to a suit will therefore not be allowed by the Court to seek remedies under a law that either was in force before or after the cause of action of the suit comes into being. This much was reiterate by <i>Kanyip J </i>in <i>Suleiman v. Hongzing Steel Company Limited (2015) 59 N.L.L.R (Pt. 204) 232. </i>By paragraph 6 of the Statement of Facts filed on 1/12/14, the cause of action of the Claimant arose sometimes in July 2012. <i>Employee's Compensation Act, 2010 </i>as an Act of the National Assembly came into force on 17/12/10. Thus, any reference to the <i>Workmen Compensation Act </i>or any other Act for that matter as the law applicable to this case is certainly not appropriate. See <i>Obiuweubi v. CBN (2011)2-3 S.C (Pt. 1) 46 (2011)7 NWLR (Pt. 1247) 465 at 495. </i>The contention that the Claimant ought to have sought for compensation as provided for under the <i>Employee's Compensation Act </i>raises the question as to the necessary meaning of section 12 of the <i>Employee's Compensation Act, 2010. </i>In this respect, subsections 2 and 3 of section 12 becomes imperative. They provide as follows -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''12(1) - The provisions of this Act are in lieu of any right of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which an employee, dependant or member of the family of the employee is or may be entitled against the employer of the employee, or against any employer within the scope of this Act, or against any employee in respect of any death, injury or disability arising out of and in the course of employment and where no action in respect of it lies''.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''S.12(3) - Where the cause of death, injury or disability of an employee is such that an action lies against some person, other than an employer or employee, the injured employee or deceased employee's dependant may claim compensation or may bring an action and if the employee or dependant elects to claim compensation, the employee or dependant shall do so within 6 months of the occurrence of the injury or death or any longer period, as the Board may, from time to time, determine and an election by the employee or dependant to bring an action in court shall be a bar to claim compensation from the Fund in respect of such injury, disability or death''.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The claim against the Defendant in this suit is for compensation for injury sustained resulting from a breach of duty of care owed by the Defendant to the Claimant. In other words, it is a suit based strictly on negligence. The Claimant has not approached the Court for compensation based on <i>Employee's Compensation Act. </i>The position of the law remains that claims as in the instant case are not foreclosed as long as the claimant is only claiming in tort for negligence. See <i>Suleiman v. Hongzing Steel Company Limited (2015) 59 N.L.L.R (Pt. 204) 232. </i>See also; Femi Aborishade: ''Reflections on Employee's Compensation Act, 2010<i>'' </i>in Bimbo Atilola (Ed.) <i>Themes on the New Employee's Compensation Act, </i>(Hybrid Consult) 1st Edition, 2013 at p. 35. I therefore find and hold that the right of the Claimant to bring this action in negligence is in no way abridged notwithstanding the provision of S. 12, <i>Employee's Compensation Act, 2010.</i> The decision of the Court of Appeal in <i>Nadim Chagaury v. Ibrahim Yakubu (2006)3 NWLR (Pt. 966) 142 </i>cited by the Claimant was one under the repealed <i>Workmen Compensation Act</i>. the present case is covered by <i>Employee's Compensation Act, 2010. </i>That decision, I find unhelpful for the purpose for which the Claimant cited it and I so hold. </span><span style="font-size:48.0pt; font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The second issue for determination is whether the Claimant has proved his case to be entitled to any or all the reliefs sought. Reliefs 1, 2 and 4 are founded on negligence on the part of the Defendant while Reliefs 3, 5 and 6 are based on breach of contract. In brief, the position of the Claimant is that the Defendant did not provide the necessary protective equipment in the cause of discharging his duty to the Defendants; that the Defendants owed him a duty of care; that the Defendants breached the said duty of care and injury resulted from the said breach of duty of care. The particulars of negligence and breach of duty of care are well set out in paragraph 8 of the statement of facts. From the available facts and circumstances of this case, has the Claimant made out a successful case of negligence against the Defendants or any of them?<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The law is reasonably settled that before liability of the Defendant for the tort of negligence can be established, it must be proved that the Defendant owes the Claimant a duty of care; that the Defendant failed or neglected to exercise that duty of care and that the Defendant's failure to exercise a duty of care was the cause of the Claimant's injury. See <i>Royal Ade Nigeria Limited & Anor. v. National Oil and Chemical Marketing Company Plc (2004) LPELR-2959 (SC).</i> These three conditions must certainly coexist in order to hold the Defendant liable for the injury sustained by the Claimant. Thus, where the duty of care exists and breached yet the resulting injury has no nexus with the breached duty of care liability will not lie. In much the same vein a resultant injury without a duty of care will not make the Court to hold a Defendant liable.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">In the instant case, there is in existence employer/employee relationship between the parties. Apart from the averments in the pleadings filed by both parties, <i>Exh. C2, Exh. C3, Exh. C4 </i>and <i>Exh. C5 </i>are evidence of existence of employer/employee relationship between the parties. Does either Defendant owe a duty of care to the Claimant? An examination of the employment given to the Claimant will provide some insight into this couple with the nature of the business of the Defendant. In his evidence in chief, the Claimant testified that the Defendant is a registered Company in Nigeria and is involved in the business of power generation, sale and servicing of generating set, panels, accessories and other related matters. This fact was admitted by the Defendant in paragraph 3 of its statement of defence. It was also the testimony on oath of the Claimant that he was employed by the Defendant as an Electrical Technician and that he sustained injury in July of 2012 while working for the Defendant and that his middle finger was chopped off by a drilling machine while working on defendant's 300/350 KVA generator reconstruction set. Again, these facts were largely admitted except that the Defendant alleged negligence on the part of the Claimant setting out the particulars of negligence in paragraphs 6 and 9 of its statement of defence. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">It only accords with simple commonsense that an employer who employs and assigns the type of work schedule which the Claimant was assigned in this case is under an obligation to be sensitive to the safety of the employee. But beyond this, such an employer is not just to be sensitive, he owes it as a duty to provide adequate care for the welfare and safety of the employee. The Law is relatively settled that an employer who employs workers to engage in activities which may pose dangers to lives and limbs of its workforce is under an obligation not only to provide safety and protective gadgets, but must also ensure that workers use the safety and protective gadgets so provided. See <i>Western Nigeria Trading Company v. Ajao (1965)All NLR 524, Suleiman v. Hongzing Steel Company Limited (2015)59 NNLR (Pt. 204) 232 & </i> <i>Kenneth Edet v. Kolawole Sanusi Nigeria Limited & Anor. Suit No: NICN/LA/497/2014 delivered on 19/5/16. </i>This, I believe is sufficient response to the pleadings of the Defendant and the evidence in chief of its lone witness that the Claimant elected not to use the protective gears provided for his use. The imperative of ensuring that workplace accidents and other physical occupational hazards are avoided or at worst minimised as much as possible cannot be over emphasised. The legislature was certainly cognisance of this when it enacted the <i>Factories Act </i>which provides in Section 47 that -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''Where in any factory workers are employed in any process involving excessive exposure to wet or to injurious or sensitive substance, suitable protective clothing, including, where necessary, suitable gloves, footwear, goggles and head coverings, shall be provided and maintained for the use of such workers''. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I note from the circumstances of this case, the relationship between the parties, the nature of the business of the Defendant coupled with the duties of the Claimant and the injury sustained by him that the Defendant owed a duty of care to the Claimant. I so find and so hold.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Now, did the Defendant breach that duty of care to the Claimant? The determination of this point will provide an answer to the second condition which must be satisfied to sustain a claim in negligence. Already, S. 47, <i>Factories Act </i>had laid out what measure must be in place by an employer for safety and protection of employees involved in certain activities. From the pleadings and evidence led by the Claimant he was not provided any safety gadgets by the Defendant. On the other hand the Defendant reacted by stating that indeed it provided the safety measures required but that the Claimant refused or did not use them. While it is opened to the Claimant to simply state that he was not provided safety gadgets as required without more, it is not sufficient for the Defendant to simply say that it was the Claimant who refused to use the safety gadgets. This is because, if the Claimant was not provided safety gadgets as required by law, there is nothing for him to tender as evidence in Court. Unfortunately, the Defendant could have at least tendered some of such protective gadgets it claimed it provided for the welfare and safety of its workforce which the Claimant, according to it, refused to use. I have no evidence before me to support the assertion of the Defendant that it provided safety gadgets to the Claimant or any of its workforce for that matter. In other words, the Defendant was in breach of its duty of care to the Claimant. I so find and so hold.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Thirdly, the Claimant is under an obligation to prove that injury or damage resulted to him from the breach of duty of care by the Defendant. In proof of this condition, the Claimant averred and led evidence in support of his averment that he sustained permanent injury in the company of the Defendant in the course of his services to the Defendant. Again this assertion and the evidence led were not effectively challenged or contradicted by the Defendant. The argument which the Defendant canvassed and which I have rejected in this Judgment is that the Claimant refused to use the safety gadgets provided. The fact remains that if the Defendant had provided safety gadgets as required by law and ensure the use of same by the Claimant, the Claimant would have been adequately protected against the injury which he suffered while working for the Defendant. Before leaving this point finally I may as well comment, <i>albeit </i>in brief, on the assertion of the Defendant that it provided safety gears to its workforce. I have before and in evidence <i>Exh. C6 </i>dated 18/12/12, <i>Exh. C7 </i>dated 15/1/13, <i>Exh. C8 </i>dated 15/1/13, <i>Exh. C10 </i>dated 22/1/13 and <i>Exh. C11 </i>dated 28/1/13. All were internal memos written by the Claimant to his superiors bringing to the attention of the Defendant accidents and health issues involving staff of the Defendant and the need for the Defendant to put in place safety measures and gadgets for the safety, welfare and protection of the workforce of the Defendant. Yet there is nothing on record to show the reaction of the Defendant to the series of complaint of the Claimant respecting safety and health issues. I find sufficient evidence to support the assertion of the Claimant that he sustained the injury as result of the failure of the Defendant to provide him with the requisite protective gears and I so hold.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Having so found and held as above, I declare that the Defendant is negligent and in breach of its duty of care to the Claimant which resulted to the damage, amputation and permanent incapacitation of the Claimant’s hand. I further declare that the Claimant is entitled to compensation for the damage, amputation and permanent incapacitation of his hand which occurred during the course of employment with the Defendant. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Claimant sought an order compelling the Defendant to pay the sum of Five Million Naira (=N=5,000,000.00) as compensation for damage amputation and permanent incapacitation of the Claimant’s hand. I have found in this Judgment that the Defendant has a duty of care to the Claimant; that the Defendant breached that duty of care and that the Claimant sustained injury/damage as result of that breach of duty of care. Simply put, the Defendant is liable to the Claimant in negligence. The law is trite that once negligence is proved, the next is to determine the measure of damages to the Claimant. In a long line of judicial authorities, it is settled that the measure of damages in an action for negligence is founded on the principle of <i>Restituo in integrum </i>meaning that successful party must be made by the Court to recover such sum as will restore him to the <i>same position </i>he was before he suffered the loss complained off. </span><span lang="EN-GB" style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";color:#000099;mso-ansi-language:EN-GB;mso-fareast-language: EN-GB">See <i>Iyere v. Bendel Feed & Flour Mill Limited (2009)3 WRN 139 at 184, & Bouygues Nigeria Limited v. O. Marine Services Limited (2012) LPELR-9295.<o:p></o:p></i></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><i><span lang="EN-GB" style="font-size:12.5pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; color:#000099;mso-ansi-language:EN-GB;mso-fareast-language:EN-GB"> </span></i></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The essence, therefore, of awarding damages when negligence is proved is to as much as possible <i>restore </i>a Claimant to <i>the same position </i>he was before the loss in question. Now, in this case, the Claimant suffered loss of the middle finger of his right hand. He complained of permanent incapacity respecting the hand. <i>Exh. D5 </i>was tendered by the Defendant. That piece of evidence was a request for transfer by the Claimant. In the first paragraph the exhibit states thus - <i>It has become unbecoming of the Assembly Manager Mr. Alla making mockery of me because I lost my finger while working on one of the 300/350 KVA generator in big engine section in Assembly Plant Production in 2012.</i> The sum sought by the Claimant is to be compensation and damage for amputation and permanent incapacitation of his hand. It is doubtful if any sum certain can actually restore the Claimant to the position he was before the injury to his hand. For, there is no market, at least not to my knowledge, where the Claimant can easily go to purchase another functional finger in replacement of his permanently damaged finger. Considering the facts and the circumstances of this case and bearing in mind the essence of damages when a case of negligence is proved, I award the sum of Three Million Naira (=N=3,000,000.00) only against the Defendant<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><i><span style="font-size:12.5pt;font-family: "Times New Roman","serif""> </span></i></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><i><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">Exh. C3 </span></i><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">was the letter of termination of appointment of the Claimant. It was dated 21/3/14 and was to be effective on the same day. The content did not state that the Claimant would be paid or is paid salary in lieu of notice. By <i>Exh. C1 & Exh. C2 </i>Claimant is entitled to a month notice or one month salary in lieu of notice of termination. Therefore not having been giving a month notice or a month salary in lieu of notice I declare that the Defendant is in breach of its contract of employment for failing to give the mandatory one month notice or salary in lieu of notice upon termination of the contract of employment. As a consequential order, I order and direct the Defendant to pay the sum of Thirty Five Thousand naira (=N=35,000.00) being a month salary in lieu of notice to the Claimant. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The prayers for an Order compelling the Defendant to pay the Claimant the sum of Thirty Five Thousand Naira only (=N=35,000.00) being the Claimant’s salary for the month of March 2014 and for an Order compelling the Defendant to refund the sum of Twenty Two Thousand Nine Hundred and Seven Naira Fifty Kobo (=N=22,907.50) being the amount illegally deducted from the Claimant’s February salary were not supported by evidence. The Defendant led evidence to the effect that the said sums have been paid to the Claimant through his Solicitors. <i>Exh. D7, Exh. D8 </i>and<i> Exh. D9 </i>were tendered. They are copies of letter to the Claimant's Solicitors and cheques attached. The facts and evidence canvassed by the Defendant not having been controverted both prayers are refused and dismissed accordingly as having been abandoned.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. I declare that the Defendant is negligent and in breach of its duty of care to the Claimant which resulted to the damage, amputation and permanent incapacitation of the Claimant’s hand. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. I declare that the Claimant is entitled to compensation for the damage, amputation and permanent incapacitation of his hand which occurred during the course of employment with the Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. I award the sum of Three Million Naira (=N=3,000,000.00) payable by the Defendant to the Claimant as compensation for the damage, amputation and permanent incapacitation of the Claimant's hand.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. I declare that the Defendant is in breach of its contract of employment for failing to give the mandatory one month notice or salary in lieu of notice upon termination of the contract of employment. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. I order and direct the Defendant to pay the sum of Thirty Five Thousand Naira (=N=35,000.00) being a month salary in lieu of notice to the Claimant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. The prayer for an Order compelling the Defendant to pay the Claimant the sum of Thirty Five Thousand Naira only (=N=35,000.00) being the Claimant’s salary for the month of March 2014 is refused and dismissed for lack of proof.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">7. The prayer for an Order compelling the Defendant to refund the sum of Twenty Two Thousand Nine Hundred and Seven Naira Fifty Kobo (=N=22,907.50) being the amount illegally deducted from the Claimant’s February salary is refused and dismissed for lack of proof.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">8. I award the sum of =N=100,000.00 as cost of this suit payable by the Defendant to the Claimant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">All the terms of this Judgment shall be complied with within 30 from the date of same.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpLast" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif"">____________________<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:center;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Hon. Justice J. D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:normal"><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">Presiding Judge<o:p></o:p></span></p> <p class="MsoNormal"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p> <p class="MsoNormal"><span style="font-size:12.5pt;line-height:115%;font-family: "Times New Roman","serif""> </span></p>