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REPRESENTATIONS: 1. OBINNA YAGAZIE Esq., for the Claimant 2. C. N. NWAPI Esq., for the Defendant J U D G M E N T INTRODUCTION By a General Form of Complaint dated 17th February, 2014 and filed 12th March, 2014, the Claimant instituted this suit claiming the following reliefs: A DECLARATION that the termination of the Claimant’s appointment without notice was unlawful AN AWARD of one month salary in lieu of notice being N42,015.00 for wrongful termination without notice AN ORDER of Court directing ng the Defendant to calculate and pay to Claimant his severance benefits/entitlements forthwith A DECLARARTION of the Honourable Court that the Claimant sustained serious gunshot injury in the course of his employment with the Defendant and he is entitled to a compensation of N5,000,000.00 (Five Million Naira) AN AWARD of N10,000,000.00 (Ten Million Naira) as general damages AN AWARD of N1,000,000.00 (One Million Naira) as the cost of this suit AN AWARD of 10 percent interest on the entire judgment sum from the date of the judgment till same is fully liquidated SUMMARY OF STATEMENT OF FACTS The gist of the Statement of Facts is that the Claimant who was employed by the Defendant as Mason in August, 2006, sustained gunshot injury sometime in May 2009 while in the course of duty; a situation which left him in severe pains even after treatment. That he kept on complaining about the severe pains until Defendant, no longer comfortable with his complaints, disengaged him on the 2nd December, 2013. SUMMARY OF STATEMENT OF DEFENCE The Defendant, while denying the claim of the Claimant, stated that the disengagement of the Claimant was based on redundancy which became necessary after the completion of the project in Uyo, Akwa Ibom State. After parties have joined issues, the case came up for hearing on 26th November, 2014 to which Claimant opened their case by calling their sole witness, Ezekiel Jonathan through whom Exhibits A, B, C, D, E, F, G and H were tendered and admitted respectively. Thereafter, Claimant closed their case. Defendant opened their case on 25th January, 2016 by calling their sole witness, Adebakun Moh’d, through whom Exhibits I, J, K were tendered and admitted respectively. Thereafter, Defendant closed their case. DEFENDANT’S FINAL WRITTEN ADDRESS At the close of hearing, Defendant filed a final written address dated 5th February, 2016 and filed on 15th February, 2016. ISSUES FOR DETERMINATION Defendant formulated two issues for determination, to wit: Whether it is lawful for Defendant to place the Claimant on redundancy Whether the Claimant is entitled to compensation as claimed ARGUMENT ON ISSUE 1 Learned Counsel on behalf of Defendant submits that it is not unlawful to place Claimant on redundancy. He refers Court to Section 20 of the Labour Act, CAP LI, LFN, 2004; Union Bank of Nigeria PLC V. Ariba (2015) All FWLR (Pt.763) 1868 @ 1873. Furthermore, that the relationship between the Claimant and the Defendant is a master-servant relation and, in ordinary situation, a master is entitled to dismiss his servant for good or bad reason, or no reason at all. He refers Court to L.C.R.I V. Ndefoh (1997) NWLR (Pt.491) 71 That placing Claimant on redundancy is lawful and, based on the decision of the Court in Union Bank of Nigeria PLC V. Ariba (supra) that ‘such removal from office does not carry along with it any other benefit except those benefits enumerated by the terms of the contract to be payable to an employee declared redundant’. That the only benefit Claimant is entitled to has already be calculated at N153,586.79 (One Hundred and Fifty Three Thousand Five Hundred and Eighty Six Naira, Seventy Nine Kobo), an amount which Claimant confirmed on cross-examination with the following words “I refused to collect because I wanted special compensation†Learned Counsel submitted further that in view of the fact that the issue herein is redundancy and not dismissal or termination of appointment, the Court should not grant Claimant’s reliefs 1, 2 and 3 as they are inapplicable. ON ISSUE 2 Learned Counsel submitted that Claimant is not entitled to any claim. On N5,000,000.00 (Five Million Naira) claimed by Claimant as compensation for injury sustained from gunshot, Learned Counsel, while admitting that the incident was rather unfortunate, posited that the cost of treating the Claimant was borne by the Defendant and, even after treatment, Claimant continued with his job up till the time the Defendant declared redundancy. That this, as well as Exhibit B (Medical Report) which was tendered by Claimant, is a pointer that Claimant has no permanent disability. On Claimant’s claim of N10,000,000.00(Ten Million Naira) as general damages, Learned Counsel submits that the employment is that of master-servant and Claimant cannot be entitled to compensation. He refers Court to Rivers Vegetation Oil Coy Ltd V. Egukole (2010) All FWLR (Pt.544)111 @125 – 126 G – D where the Court of Appeal held thus: Except in employment governed by statute wherein the procedure for employment and discipline, including dismissal of an employee, are clearly governed by terms under which the parties agreed to be master and servant, employment with statutory flavour must be terminated in the way and manner prescribed by that statute and any other manner inconsistent with the relevant statute is null and void and of no effect. However, the Court cannot hold the termination of the employment of an employee in a relationship without statutory flavour as null and void and go ahead to award such damages in terms of what he would have earned had the contract of employment subsisted. ……………………………… While adumbrating further, Learned Counsel submits that an employee whose employment is governed by a contract of employment, vis-as-vis master-servant relationship, is only entitled to damages in the amount he would have earned for the period of notice. He referred Court to Rivers Vegetation Oil Coy Ltd V. Egukole (supra) On the award of N10,000,000.00 (One Million Naira) as cost of this suit, Learned Counsel submits that this is unfounded in law and there is no scintilla of evidence to prove same and the Court is not a Father Christmas. Learned Counsel therefore urged the Court to dismiss the suit in its entirety. CLAIMANT’S FINAL WRITTEN ADDRESS Claimant, on their part formulated two issues for determination, to wit: Whether the Claimant has established his case to enable the Court to enter judgment on his behalf Whether the Claimant has sustained serious gunshot injury while in the service of the Defendant to be entitled to compensation The Claimant, while arguing issues 1 and 2 together, submits that Union Bank PLC V. Aribe (supra) cited by the Defendant, is not relevant to the case herein as the facts are not the same. That the grievances of Claimant herein are – Claimant was sacked without notice; Defendant refused to pay him redundancy benefit and finally, Defendant refused to pay compensation for gunshot injury sustained by Claimant. That it is crystal clear that it was Claimant insistence on proper medical check-up and demand for compensation that made Defendant put up Claimant’s name in the redundancy list of its employee. Furthermore, that after the gunshot incidence, Claimant was only taken to a clinic where he was operated upon and discharged after 12days and there is no evidence before the Court that Claimant received the best of medical care or was certified medically fit after the gunshot. That even the medical report relied on by the Defendant was arranged as the medical report which is dated 15th February, 2009 predates the gunshot incidence which took place on 21/5/2009, same day Claimant was taken to the clinic and was discharged on 2nd June, 2009 – 12days after the gunshot. Learned Counsel also opines that being that at a certain stage of this suit, Claimant applied for leave to amend their Complaint as well as statement of Claim and the Court obliged them, that where a Statement of Claim in a suit is amended, the amended claim is the relevant claim. The original claim which was amended drops out and ceases to have relevance. He refers Court to Owena Bank (Nig) Ltd V. N.I.S.C.C Ltd (1993) 4NWLR (Pt.290) 698. That flowing from the above, same should be said that a Defendant who failed to file amended Statement of Defence after an amended Complaint, has no defence at all. He therefore urged the Court to enter judgment in favour of the Claimant. REPLY ON POINT OF LAW On receipt of Claimant final written address, Defendant filed a reply on point of law. The main thrust of the reply on point of law is Exhibit B which is the medical report tendered by Claimant, having a date that predates the shooting incidence. Learned Counsel submits that Claimant’s submission on the date on the medical report (Exhibit B) is misleading and deliberate distortion as a mistake in date is a mere irregularity which does not affect the substance of the subject matter. He refers Court to Jeric Nig Ltd V. UBN PLC (2001) All FWLR (Pt.31) 2913 @ 2923 COURT Having gone through the Claimant’s claim, Defendant’s defence, documents admitted as exhibits and both Claimant’s and Defendant’s final written addresses, this Court has distilled a sole issue for the just determination of this suit, to wit: Whether given the circumstances, the Claimant has made out a case entitling him to all the reliefs sought. Before proceeding to determine the sole issue distilled by the Court for determination, this Court wishes to make the following observations: It is not in dispute that the Claimant was at all time material to this suit in the employment of the Defendant until he was declared redundant by Defendant on 2nd December, 2013. What is in dispute however is that Claimant was not given notice before he was placed on redundancy nor was he paid severance benefit. It is not in dispute that sometime in May, 2009, the Claimant sustained gunshot injury while in the course of duty. What is in dispute however, is that Claimant is entitled to compensation – a compensation Claimant pegged at N5,000,000.00 (Five Million Naira) That said, the Court shall proceed to determine the issue raised accordingly. Also, while addressing the sole issue distilled by the Court, the Court will address issues raised by both Counsel in the body of the judgment where necessary Redundancy, in theory, is not termination of appointment or dismissal. Rather, it is a situation akin to placing employees on standby pending when there is work or project requiring their services. As lofty as the above idea is, in practice, when an employer places employees on redundancy, the possibility of recalling them, being at the behest of the employer, is better left to time and space. This is the reason a worker placed on redundancy may as well see himself as having lost his employment for only God knows if he would be recalled or not. To my mind, this is what is envisaged by the Labour Act, 2004 when in Section 20(3) redundancy is defined as involuntary and permanent loss of employment caused by an excess of man-power. Therefore, it would not be out of place for an employee placed on redundancy to ask for compensation for injury he suffered while in the line of duty, especially when such injury may affect his chances of getting a new job or his capacity in discharging his duty if he secures a new job. This Court, as an industrial Court, does not overlook injury arising from workplace be it minor or grave, permanent or non-permanent. This is so because there are certain injuries which after being treated, the doctors may give a clean bill in the interim. But that does not necessarily mean that in the long run, the pain may not re-occur when age starts telling on the victim or the victim over labours himself, or as a result of negligence or error of judgment of those who treated him. A situation where the Claimant sustained gunshot injury while in the line of duty, and he is now being placed on redundancy, this Court is of the view that Claimant is entitled to compensation inasmuch as he does not know what fate awaits him during this period of redundancy, and I so hold. That said, this Court wishes to state that he who alleges must prove. Hence, a Claimant alleging pains he suffered as a result of injury at workplace yet failed to lead compelling medical evidence or testimonial evidence as to the measure of pains and how the pains have affected his capacity, may end up not getting exactly what he asked for as compensation. This is so because the weight of the evidence of pains determines the weight of the amount the Court can grant to assuage same. On compensation for redundancy, it is apposite to reproduce the dictum of Lord Denning MR in Lloyd V. Brassey (1969) 2QB 98 @102 CA when he stated: As I read the Act, a worker of long standing is now recognized as having an accrued right in his job and his right gains in value with the years. So much so that if the job is shut down, he is entitled to compensation for loss of job…………….. it is not unemployment pay. I repeat “notâ€. Even if he gets another job straight away, he is nevertheless entitled to full redundancy payment. It is in a real sense compensation for long service. Now, in our own domestic laws, Section 20(1)(c) of the Labour Act, CAP LI, LFN, 2004, the employer is empowered to negotiate redundancy payment to any discharged worker. The point here is that when an employer places an employee on redundancy, the employee is entitled to compensation and such compensation should put into consideration the period such an employee has worked with the employer. This Court takes judicial notice that at a particular stage in the trial of this suit, it made an Order directing the Defendant to calculate the severance benefits of the Claimant and pay him accordingly. The Defendant did the calculation but Claimant did not collect the money alleging that Defendant gave conditions that could amount to Claimant signing off his rights. In any event, the Order of the Court still subsists and Defendant having calculated the amount to be N153,586.76 (One Hundred and Fifty Three Thousand Five Hundred Eighty Six Naira Seventy Six Kobo) (see paragraph 3.5 of Defendant’s Final Written Address), Defendant is liable to pay the sum to Claimant, and I so hold. On damages, this Court wishes to state that in master-servant relationship, damages become necessary in the event that the Court finds that the termination of the employment of the employee was wrongful. This is so because when the Court finds the termination to be wrongful, it cannot nullify or void the termination as it cannot foist a willing employee on an unwilling employer. The only remedy available to such an employee is in damages not reinstatement. See Osinsanya V. Afribank (2000) 1NWLR (Pt.642) Pg.558 Damages in master-servant relationship is not awarded for the asking. The Claimant must lead evidence to prove that the acts of the Defendant leading to the dismissal or termination of his appointment are unlawful, gross, malafide and reckless to the extent it caused the Claimant shame, disgrace and also maligned the good name of the Claimant. It is the degree of bad faith and recklessness on the part of the Defendant coupled with the degree of shame and disgrace suffered by the Claimant that the Court considers in calculating the measure of damages that can assuage the shame and disgrace suffered by the Claimant. This Court finds that there is no evidence in the case herein that by placing the Defendant on redundancy, the Defendant acted unlawfully, in bad faith or recklessness capable of attracting the award of damages to the Claimant, and I so hold. On one month salary in lieu of notice, this Court also finds that no evidence was placed before this Court to prove that before Claimant could be placed on redundancy, he was entitled to one month notice or one month salary in lieu of notice. On Claimant’s submission that Defendant did not amend their Statement of Defence after Claimant amended their Complaint, this Court wishes to state that the Claimant or the Court cannot conduct the case of the Defendant for them. If Defendant had earlier filed a Statement of Defence and despite Claimant amending their Claim, Defendant still stuck to their earlier Statement of Defence – the choice is theirs to make. The Claimant or the Court cannot make that choice for them if they are comfortable with it. For all the findings and holdings of the Court above, this Court shall proceed to determine the Claimant’s Claim as follows: Claim 1 and 2 fails to the extent that there is no evidence before this Court that Claimant was entitled to one month notice or one month salary in lieu of notice before placing him on redundancy. Claim 3 succeeds to the extent that Defendant is hereby ordered to pay the Claimant the sum of N153,586.76 (One Hundred and Fifty Three Thousand Five Hundred Eighty Six Naira Seventy Six Kobo) being redundancy benefits already calculated by Defendant. Claim 4 succeeds to the extent that the Court hereby declares that the Claimant is entitled to the sum of N1,000,000.00 (One Million Naira) for gunshot injury sustained in the line of duty. Claim 5 fails Claim 6 fails as there is no evidence before this Court to sustain same. Claim 7 succeeds. From the foregoing and based on the powers of the court to make consequential and ancillary order ( see Aisagbonbuomwan Ogbalon V. The Registered Trustees of Christ Chosen Church of God & Anor (2002) 1 NWLR (Pt.749) 675 @ 701; Chubuike Amaechi V. Celestine Omehia (2008) 5NWLR (Pt. 1080) 227), the Court hereby declares/orders as follows: AN ORDER directing Defendant to pay the Claimant forthwith the sum N153,586.76 (One Hundred and Fifty Three Thousand Five Hundred Eighty Six Naira Seventy Six Kobo) being redundancy benefits already calculated by Defendant A DECLARATION that Claimant is entitled to compensation for gunshot injury sustained in the course of duty and accordingly, Defendant is hereby ordered to pay Claimant the sum of N1,000,000.00 (One Million Naira) AN ORDER for the award of 10 percent interest of the entire judgment sum in favour of the Claimant from the date of judgment till final liquidation of the judgment sum by the Defendant. Judgment is hereby entered accordingly. …………………………………………. HON. JUSTICE M.N ESOWE