Download PDF
The Claimant commenced this suit on 18th December 2014. In his amended Complaint filed on 19th November 2015, he claimed the following reliefs against the Defendant: 1) A Declaration: a) That the Claimant was in the employment/an employee of the Defendant as its Manager with effect from the 1st day of March, 2013 till January, 2014 when the employment was purportedly terminated by the Defendant. b) That the Claimant is entitled to his monthly salary at the rate of N40,000.00 (Forty Thousand Naira) between July, 2013 and January, 2014 when the purported termination of the Claimant's employment was communicated to him. c) That the Claimant's purported termination amounted to an unfair treatment of him by the Defendant in view of his plight in the course of his duty with the Defendant. d) That the Claimant is entitled to the payment of hospital bills, compensation and damages from the Defendant for injuries and/or permanent incapacitation he sustained while in the employment of the Defendant 2) An order of court compelling the Defendant: a) To pay the Claimant the sum of N280,000.00 (Two Hundred and Eighty Thousand Naira) being the Claimant's salary from the Defendant between the month of July, 2013 to January, 2014 at the rate of N40,000 (Forty Thousand Naira) per a month. b) The sum of N50,000,000 (Fifty Million Naira) being compensation/damages for the permanent injury/ incapacitation of the Claimant while in the employment of the Defendant. c) Payment of the sum of N158,930.00 (One Hundred and Fifty Eight Thousand, Nine Hundred and Thirty Naira) being the hospital bill of the Claimant and cost of procurement for his prosthesis at the rate of N2,000,000.00 (Two Million Naira). d) Interest on the judgment sum at the rate of 15% per annum from the date of judgment till judgment is fully complied with by the defendant. The Complaint was filed along with a Statement of Facts, Claimant’s List of Witnesses, Claimant’s Witness Statement on Oath, Claimant’s List of Documents and Copies of Documents to be relied on. The Defendant did not file any statement of defence and/or witness deposition in spite of the processes served on her and hearing notices repeatedly served on her and/or her Counsel. The Defendant did not file any process, even though one O. J. Mbonu of counsel appeared once in the matter (on 1/7/2015) and announced appearance for the Defendant. The same O. J. Mbonu on two occasions (14/01/2016 and 03/03/2016 respectively), wrote letters to the court on behalf of the Defendant, seeking adjournment on grounds of ill-health. After several adjournments and the Defendant neither appeared nor filed processes inspite of hearing notices served on her, the case proceeded to hearing. Hearing commenced on 18th April 2016. The Claimant testified for himself as CW1. Upon conclusion of his evidence on 23rd May 2016, the case was adjourned for continuation of hearing. This was to enable the Defence cross-examine the Claimant. After yet a number of adjournments, the Defendant was foreclosed from cross-examining the Claimant on the 11th day of November 2016; and the Claimant proceeded to field his second witness a Mr. Ezinwa Stanley who testified as CW2. The court again adjourned to enable the defence cross-examine CW2. The defence again failed to attend court inspite of repeated hearing notices served on them. After about three adjournments, the Defendant was on the 24th day of February 2017, foreclosed from cross-examining CW2. On the 7th day of June 2017, the Defendant was foreclosed from defending the action after yet a series of adjournments. Parties were ordered to file their final written addresses in accordance with the Rules of Court. The Claimant’s final written address was filed on 12th July 2017 and duly regularized. The Defendant did not file any final address. The Claimant’s Final address was duly adopted on the 26th day of September 2017. In the Claimant’s final written address dated and filed 12th July 2017, Learned Counsel for the Claimant identified two issues for determination, to wit: 1. Whether the Claimant has proved that he was in the employment of the Defendant; and 2. Whether the Claimant has proved his case to entitle him to the claims as made. In arguing issue 1, counsel submitted that it is trite law that the burden of proof is on he who asserts. Counsel cited Sections 131(1) of the Evidence Act 2011 (as amended) which provides as follows: 131(1) "whoever desires any court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts must prove that those facts exist." See also Sections 132, 133 and 134 of the Evidence Act 2011 (as amended). In CALABER CO-OPERATIVE vs. EKPO (2008) 11 MJSC (Pt. 104) at 130 Para D-E, the Supreme Court held that "The law is elementary that the burden of proof is on the party who alleges the affirmative, whoever desires any right or liability dependent on the existence of facts which he asserts must prove that those facts exist". See also A.G. OYO STATE vs. FAIRLAKES HOTELS LTD NO 2 (1989) 5 NWLR (Pt. 121) Pg. 255 at 285 PARAS F-G. Against the background of the above law, counsel submitted that the Claimant has both by pleading, evidence and Exhibits, proved that he was employed by the Defendant as her manager in her business outfit "Tasty Tongue Fast Food". See paragraphs 4, 5, 6 and 11 of the Amended Statement of facts, paragraph 5, 6, 7, 8, 11 and 12 of the witness deposition of the Claimant dated 18th December, 2014; and importantly, Exhibits A and B. Counsel argued that these facts and Exhibits were not contradicted by the Defendant and urged the Court to believe them. Counsel also submitted that the law allows oral contract of employment, as Section 54(1) interpretation section of National Industrial Court Act, 2006 defines "Employee" to mean a person employed by another under oral or written contract of employment whether on a continuous, part-time, temporary or casual basis, and includes a domestic servant who is not a member of the family of the employer while "employer" means any individual or body corporate or unincorporated who has entered into a contract of employment to employ any other person as an employee or apprentice". In the light of the above facts, oral and documentary evidence and the law, counsel urged the Court to hold that the Claimant has proved that he was an employee of the Defendant, despite the fact that the contract of employment was not in writing, and the terms of same stated out in writing. The Claimant’s Counsel argued that Exhibits A and B are receipts of the Defendant with hand written instructions of the Claimant as manager of the Defendant. Counsel urged the court to resolve issue 1 in the affirmative. On Issue 2, Counsel adopted her earlier submissions on burden of proof. She submitted further that every contract of employment contains terms and conditions that will regulate the employment relationship, such as terms on the wages, notice, other benefits and terms of determination. Where there is no express contract of employment or service, it is implied into it by common law and custom. Counsel submitted that the nature of employment also generally affects the terms of the contract of employment see LONGE vs. FBN PLC (2010) 6 NWLR (Pt. 1189) 1. S. C. Counsel contended further that the Claimant in this case pleaded and led evidence to show the wages or salary payable to him as N40,000.00 per month and that there was no contradiction of this evidence by the Defendant on this claim. It was also the evidence of the Claimant that the Defendant agreed to provide medical facilities for him as and when necessary. Counsel urged the Court to believe and act on the evidence of the Claimant that the Defendant did not pay his salary of N40,000.00 per month between the month of July 2013 to January, 2014 when his appointment was terminated without notice or salary in lieu of notice, and this amounts to N280,000.00 as claimed. An employee whose employment has not been terminated is entitled to his salary and emoluments so that between July 2013 and January, 2014 the Claimant was entitled to his salary. See NBC PLC vs. EDWARD (2015) 2 NWLR (Pt. 1443) 201 at 235 CA. Again, counsel submitted that the Claimant also tendered Exhibits C and D to show that his leg was amputated as a result of the accident he had while carrying out his duties in the employment of the Defendant, and Exhibit H1-J28 as receipts of medical expenses to the tune of N158,930.00 (One Hundred and Fifty Eight Thousand, Nine Hundred and Thirty Naira). Counsel urged the Court to find this claim as proved; more so, when same was not challenged by the Defendant who was given ample opportunity to do so. The Claimants Counsel further urged the Court to award the claim of N50,000,000 (Fifty Million Naira) as compensation/damages for the permanent injury/ incapacitation and N2,000,000 for the cost of procurement, for his prosthesis, and also interest on the judgment sum at the rate of 15% per annum from the date of judgment until same is fully complied with. Counsel referred the Court to Section 19D of the National Industrial Court Act 2006 which empowers the court to award damages in deserving cases of matters within the jurisdiction of the court. Counsel submitted that this case is one of such deserving cases. COURT’S DECISION The Claimant’s case, from the statement of facts and the evidence adduced by CW1 and CW2, is that the Defendant is the proprietor of Tasty Tongue Fast Foods which business is involved in preparation and sale of pastries, bread, African and continental foods. The Claimant, a graduate holding a degree in Political Science, was employed by the Defendant as a manager in the business from 1st March 2013 at a monthly salary of N40,000. The other terms of the Claimant’s employment include payment of his medical services as and when necessary and to manage the business and carry out other duties assigned to him by the Defendant from time to time. The terms of the employment were agreed orally but the Defendant promised him to reduce the terms into writing. The terms had not been put in writing when the Claimant had an accident in the course of his duties. On 17th July 2013, the Claimant was assigned to supply baked bread to the Defendant’s retail outlets. The Claimant drove the Defendant’s Mitsubishi L300 with registration number GLF 852 AH to do the supply and in his company was one Oha Prince Ikechukwu. He parked by the road side somewhere at Mission Junction, Emii/Emekuku, Owerri North to supply bread when he was hit from behind by a Tipper driven by one Henry Ekeocha. The Claimant sustained injuries from this accident and it led to the amputation of his right leg in the hospital. He relied on medical letters marked Exhibits C and D. While the Claimant was in the hospital, the Defendant showed little interest to the Claimant’s plight. The Defendant visited the Claimant in the hospital only two times and contributed only N70,000.00 to the Claimant’s hospital bill. While the Claimant was hospitalised, the Defendant stopped paying his salaries with effect from July 2013. The Claimant had spent about N500,000.00 in hospital bills. He relied on hospital receipts which he tendered in evidence as Exhibits H1-H14 and J1-J28. His lawyers had written letters to the Defendant demanding for compensation, but the letters did not yield any result. There was also a meeting where the Defendant’s husband, Mr. Chibuzo Obi Iheme, promised, on behalf of the Defendant, to pay the arrears of salaries of the Claimant, pay compensation, and bear the expenses of his prosthesis. These promises were however not met till date. The Defendant failed to pay the Claimant salaries, compensate him or provide him with prosthesis. It will cost him N2,000,000.00 to procure his prosthesis. The Defendant abandoned the Claimant with his condition. The Claimant is now unemployed and will be unable to secure another employment having been amputated of one of his legs. He is incapacitated and has suffered both emotionally and financially since 17th July 2013. The Defendant was served the originating processes and all other processes filed by the Claimant in this suit but she refused and failed to file a statement of defence or any processes in defence of the suit. Several hearing notices were also served on the Defendant and her counsel to enable her appear and defend the action but she refused to utilise the opportunities. As a result of the Defendant’s continual absence from court, particularly her failure to appear in court on 7/6/2017, which date was for defence, despite hearing notice served on her for the purpose, the court foreclosed the defence and ordered parties to file their final written addresses. Only the Claimant turned in a final written address. In her final written address filed on 12/7/2017 but deemed filed and served on 26/9/2017 by an order of this court, the learned counsel for the Claimant, E. O. Echebima formulated two issues for determination. The issues are – 1. Whether the Claimant has proved that he was in the employment of the Defendant. 2. Whether the Claimant has proved his case to entitle him to the claims as made. The address of counsel has been summarized earlier in this judgment. The court will adopt the 2nd issue formulated by the Claimant’s counsel in determining this case. The issue is Whether the Claimant has proved his case to entitle him to the claims he seeks in this suit. The Claimant’s case has not been disputed or rebutted by the Defendant. The law is that the court ought to accept and act on the evidence adduced by the Claimant. See KOPEK CONSTRUCTION LTD. vs. EKISOLA [2010] 1 S.C. (Pt.1) 1. However, since the Claimant sought declaratory reliefs in this action, he must be seen to have proved his case before he will be entitled to his claims. It is trite that a party seeking a declaratory relief must prove his entitlement to the declaration sought and he must succeed on the strength of his case. See ATUNWA vs. LADENIKA (1998) 7 NWLR (Pt.557) 221; FATOBA vs. OGUNDAHUNSI (2003) 11 WRN 56 at 84. This court cannot make the declarations sought merely on the ground that the Defendant did not defend the action. Notwithstanding the fact that the evidence presented by the Claimant in proof of his case is not challenged by the Defendant, I am under duty to still evaluate the evidence, and I must be satisfied that it sustains the claims sought by the Claimant before I can grant the claims. I have thoroughly examined the Claimant’s case and I see that it has merit. Section 7 (1) of the Employee compensation Act 2010 provides that any employee, whether or not in a work place, who suffers disabling injury arising out of or in the course of employment, shall be entitled to payment of compensation. To succeed in his claim for compensation under this section, the provision prescribes certain facts to be proved by the Claimant. The Claimant must show that- i. He is an employee of the Defendant, ii. He suffered disabling injury, and iii. The injury arose out of or in the course of his employment The Claimant has proved that he was an employee of the Defendant and on 17th July 2013 he was performing his duties for the Defendant when the accident occurred. The effect of the accident resulted to the amputation of his right leg. He also gave evidence to the effect that he is now unemployed and will be unable to secure another employment as a result of the amputated limb. He further told the court that the Defendant failed to compensate him or provide him with prosthesis. The cost of prosthesis, the Claimant said, is the sum of N2,000,000.00. The Claimant has shown that the injury he sustained from the accident is disabling injury and that he suffered the disability in the course of his employment. I am satisfied that the Claimant has established the requirements entitling him, under Section 7 of the Employees Compensation Act, to be paid compensation by the Defendant for the injuries he sustained during his employment. The Claimant claimed the sum of N50,000,000.00 as compensation. I must say however that the amount to be awarded as compensation is at the discretion of the court after taking into consideration the extent of the injury, the pain and suffering and future employability of the Claimant. See IGBOSEWE vs. DELTA STEEL CO. LTD (2008) All FWLR (Pt.410) 741. Upon my assessment of the Claimant’s condition, I hold the view that the sum of N5,000,000 will be appropriate compensation to the Claimant for the disability he sustained during the course of his employment with the Defendant. The sum of N2,000,000.00 claimed by the Claimant to procure prosthesis is also granted. Similarly, the Claimant claims the sum of N158,930.00 as the hospital bill he incurred. Although the Claimant said he has spent over N500,000.00 in hospital bills and has continued to spend, he has not told the court how the sum now being claimed arose or accrued. This claim is in the nature of special damages but I find that the sum has not been proved. This claim fails. The Claimant also sought from the Defendant, payment of the sum of N280,000.00 which the Claimant said was his unpaid salary from July 2013 to January 2014. The Claimant had told the court that his salary per month was N40,000.00 and he had not been paid from July 2013 up to January 2014 when he was informed that his employment had been terminated. The total accrued salary from July 2013 to January 2014 is the sum of N280,000.00. The Claimant is entitled to this sum. The claim is granted. The case of the Claimant succeeds in part. The following reliefs are granted to him: 1. The Defendant is ordered to pay to the Claimant the total sum of N280,000.00 (Two Hundred and Eighty Thousand Naira) being the Claimant's unpaid salary from July 2013 to January 2014. 2. The Defendant is ordered to pay the Claimant the sum of N5,000,000.00 (Five Million Naira) as compensation for the permanent disability he has suffered while carrying out his duties in the employment of the Defendant. 4. The Defendant is ordered to pay the sum of N2,000,000.00 (Two Million Naira) to the Claimant for the procurement of prosthesis. 5. Cost of N200,000.00 (Two Hundred Thousand Naira) is awarded in favour of the Claimant. 6. Interest at 10% per annum shall be paid by the Defendant on these sums until the judgment sum is fully paid if the sums are not paid to the Claimant within 30 days from today. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge