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JUDGMENT This action was commenced on 10th July 2015 by a complaint in which the Claimant sought the following reliefs: 1. The sum of N324,850.00 (Three Hundred and Twenty Four Thousand Eight Hundred and Fifty Naira) only, being special damages incurred by the Claimant as medical bills, as at 22nd May 2015, in treating himself of the injuries sustained as a result of the said accident as a result of the negligence of the Defendant's driver wherein the bucket of the Defendant’s lorry with registration No. XD 194 SSM heavily loaded with chippings fell over the Claimant on the 13th day of December, 2014. 2. The sum of N500,000,000.00 (Five Hundred Million Naira) only, being special damages for the permanent/indelible and grievous injuries sustained by the Claimant as a result of the said accident resulting from the negligence of the Defendant's driver wherein the bucket of the Defendant's lorry with registration No XD 194 SSM heavily loaded chippings fell over the Claimant on the 13th day of December 2014. 3. The sum of N500,000,000.00 (Five Hundred Million Naira) only for the default of the Defendant to be a contributor to the Nigeria Insurance Trust Fund and thereby denying the Claimant the Compensation he ought to have obtained from the Nigerian Insurance Trust Fund. After the service of the originating processes on the Defendant, the Defendant through counsel entered a conditional appearance on 4th September 2015 and subsequently brought an application on 9th October 2015 to strike out this suit for want of jurisdiction. Ruling on the said motion was delivered on 25/5/2016 wherein the court assumed jurisdiction. The Defendant filed her Statement of Defence on 8/7/2016 vide a motion for extension of time. The Claimant filed a reply to Statement of Defence along with additional depositions on 4/11/2016. These were duly regularised and the case proceeded to trial. Hearing commenced on 7/2/2017, the Claimant in support of his case fielded two witnesses. One Donatus Okafor, the Claimant’s father testified as CW1, while the Claimant himself testified as CW2. Sir Anthony Nwosu, a transport manager with the Defendant testified as the defendant’s sole witness (DW1). Trial ended on 26/09/2017, and parties were ordered to file Final Written Addresses in accordance with the Rules of court. The Defendant’s Final Address was filed on 23rd October 2017. The Claimant’s Final Written Address was filed on 13th November 2017. Parties adopted their respective addresses on 24th January 2018. In the Defendant’s Final Written Address, Counsel narrated the facts of the case and proceeded to formulate the following four issues for determination: 1. Whether the Defendant is not a legal employer to the Claimant in the circumstances in which the Claimant's relatives colluded with a driver of the Defendant to impose the Claimant on the Defendant without the Defendant's knowledge and authority. 2. Whether the accident was not caused by the negligent conduct of the Defendant's driver but arose from inevitable accident. 3. Whether the Claimant is not entitled to recover payment for medical bill allegedly incurred in the circumstances in which a third party has paid off the medical bills. 4. Whether the document marked Exhibit C2 is inadmissible in evidence. Regarding issue one, counsel in answering in the affirmative, submitted that from the evidence of the Defendant, the Claimant was not employed as an apprentice and the Defendant was unaware and has no record of the Claimant's engagement. According to counsel, evidence was adduced to reveal that the Claimant never went through the Defendant’s engagement procedure which includes: submission of application and passport photographs and an interview session, a fact confirmed by the Claimant as CW2 during cross-examination; thereby contradicting the Claimant’s deposition at Paragraph 2(C) of his Further Written Deposition filed on 4/11/2016 and thereby making him unworthy of belief by the court. Counsel contended that the Claimant’s witnesses during their cross-examination stated positively that they never met the Defendant's Managing Director, and nowhere in the Claimant’s evidence did the Claimant specify the office of the Defendant that engaged him, except the relationship with one Pius Akweze; which according to counsel, raises the inference that the said Pius Akweze "took in" the Claimant into the Defendant Company through the back door without the knowledge of the Defendant. In the same vein, counsel asserted that the Defendant's sole witness gave uncontroverted evidence that Pius Akweze was an ordinary driver in the Company and did not have the authority of the Defendant to engage an apprentice for the Defendant Company. It is counsel’s opinion that the effect of the evidence above is that the Defendant was not an employer to the Claimant, and an employer-employee relationship must be found to exist between the parties before the National Industrial Court could assume jurisdiction from the combined reading and interpretation of the definitions of the terms “employee” and “employer” in Section 54 of the National Industrial Court Act 2006. Furthermore, counsel submitted that the issue of jurisdiction can be raised and considered at any stage of the proceedings up to the final determination of an appeal by the highest court of the land as was held in ADEGOKE vs. ADEBI (1992) 6 SCNJ 136. See also OLUTOLA vs. UNILORIN (2004) LPELR-2632 (SC). To counsel, the evidence in the present case discloses that the Defendant was not the employer of the Claimant, and this court ought not to continue to assume jurisdiction in this case. With respect to issue two, counsel relied on the cases of ALHAJI KABIRI ABUBAKAR & ANOR. vs. JOHN JOSEPH (2008) LPELR-48 (SC) and B.J. NGALARI vs. MOTHERCART LTD. (1999) 13 NWLR (Pt.636)) 626; and contended that the burden of proving negligence falls on the Claimant who alleged it, and he must prove that the accident was as a result of the Defendant’s negligence because the mere occurrence of an accident is not proof of negligence. It is counsel’s submission that the Claimant failed to establish a causal relationship between the accident and any negligent conduct of the Defendant's driver, as the evidence of both witnesses of the Claimant does not disclose that the accident was linked to any negligent conduct of the Defendant's driver, and CW1 in particular cannot give credible evidence on this issue because he was not at the scene at the time of the incident. Again, counsel argued that the Claimant’s statement in Exhibit C6 about the Defendant's driver being drunk was not mentioned anywhere in the Claimant's written deposition on oath, which rendered the evidence of the Claimant highly unreliable, in the light of the fact that DW1 specifically denied the Claimant's allegation of negligent conduct on the part of the Defendant's driver in paragraphs 12, 24, 25 & 28 of his deposition. More so, counsel submitted that the Claimant deliberately made no effort to procure the report of the Police Traffic Division in proof of cause of the accident, because it would have been unfavourable to the Claimant's case. Counsel urged the court to invoke Section 167(d) of the Evidence Act against the Claimant and hold that the accident is not a result of any negligent conduct of the Defendant’s driver. Further, it is the view of counsel that the Defendant pleaded and adduced credible evidence at trial to show that the accident arose from inevitable accident, notwithstanding the exercise of all reasonable care and skill by the Defendant's driver; he was unable to avoid the same. Similarly, counsel submitted that CW2 admitted during his cross-examination that it was the vehicle that was coming in front that caused the Defendant's driver to swerve his own vehicle to avoid a fatal head-on collision, and to this extent the Claimant agrees with the Defendant that the accident was a product of inevitable accident not attributable at all to the fault of the Defendant’s driver. It is counsel’s contention that the defence of inevitable accident is a genuine defence available to a defendant charged with negligence if there are facts and circumstances establishing same, as was upheld by the Supreme Court in the case of C & C CONSTRUCTION LTD. & ORS. vs. OKHAI (2003) LPELR- 821 (SC) thus “If a Defendant denies negligence, he may give evidence of inevitable accident although he has not specifically pleaded it”. The court was urged to hold that the Defendant has established facts and circumstances showing that the accident was as a result of inevitable accident. On issue three, counsel submitted that the Claimant and his father revealed in Exhibit C6 that a third party settled the Claimant’s medical bill of N533,810.00 (Five Hundred and Thirty Three Thousand, Eight Hundred and Ten Naira), and since the medical bill has been settled, it means that the Claimant no longer suffered loss, the court cannot award of damages for the same medical bill which would amount to a windfall to the Claimant; because damages in tort are compensatory in nature, to compensate for losses sustained. Counsel relied on the following cases in this respect: 1. NEKA BBA MANUFACTURING CO. LTD. vs. ACB LTD. (2004) LPELR-1982 (SC), 2. TSOKWA MOTORS (NIG) LTD. vs. UBA PLC. (2008) LPELR-3266 (SC). It was argued also by counsel that any award of damage against the Defendant for medical expenses settled by the third party amounts to a punitive damage, which the Claimant did not claim and the court cannot grant a relief not claimed by a party, as was held in ADEMOLA vs. SODIPO (1992) LPELR-122 (SC). In the same vein, counsel submitted that this case is replete with deplorable acts on the part of the Claimant and his relatives that out rightly negates court's award of any damage in this case, and the Claimant's conduct on or accepting to sit in the bucket of a moving lorry loaded with chippings knowing the prevalent bad road condition is unreasonable and demonstrates crass insensitivity to his personal safety in the face of obvious danger. Counsel asserted that the Claimant's father, Donatus Okafor who testified as CW1 was not truthful and therefore, unworthy of belief by the court, because in his deposition he averred that the Defendant made a paltry deposit in the total sum of N20,000.00 (Twenty Thousand Naira) for the medical treatment of the Claimant, but during his cross-examination admitted that the sum of N110,000.00 (One Hundred and Ten Thousand Naira) was paid by the Defendant. It is Counsel’s opinion that CW1’s untruthfulness was driven by greed and avarice, because barely one month after the Defendant's last payment, Donatus Okafor instructed his solicitors to address Exhibit C5A to the Defendant demanding One Billion Naira, and it is deplorable act to take a matter that is already in court to the press. According to counsel, no damages ought to be awarded based on the deplorable acts of the Claimant in the conduct of this case. With respect to issue four, counsel submitted that Exhibit C2 is inadmissible on the grounds that the document was unsigned, not front-loaded and was not pleaded; in view of the fact that the document pleaded at Paragraph 16 of Statement of Claim relates to expenses as at 22/5/2015 whereas the document sought to be tendered relates to expenses made from June to October 2015. Counsel urged the court to reverse the interim admission of the document in evidence and mark same rejected, owing to the fact that evidence tendered in support of facts not pleaded goes to no issue. Counsel urged the court to dismiss the suit with heavy cost, as it is misconceived and lacks merit. The following four issues were articulated in the Final Written Address of the Claimant filed on 13th November 2017: 1. Whether the Claimant is not an employee of the Defendant. 2. Whether there is any evidence before the court that the accident arose from inevitable accident and not by the negligent conduct of the Defendant. 3. Whether the Claimant has established his claims as to be entitled to same. 4. Whether the document marked Exhibit "C2" is admissible in evidence. With respect to issue one, counsel submitted that the Claimant is an employee of the Defendant, in view of the Ruling of this Court delivered in this suit on the 25th day of May, 2016. In response to the objection of the Defendant’s counsel to the jurisdiction of this Court to entertain this suit, counsel referred to page 5 of the said Ruling as follows: “The combined effect of these provisions on the facts averred by the Claimant is that the Claimant, as an apprentice of the Defendant, is a worker in the Defendants Company. By virtue of that relationship, there exists between the Claimant and the Defendant, a labour or employment contract. Going by the provision of Section 54 of NIC Act, the Defendant is no doubt the employer of the Claimant. I find in the result that this case is a labour matter. A contract of employment does exist between the Claimant and the Defendant. Therefore, I hold that this case comes within the subject matters on which this court has jurisdiction. The Defendant’s motion is dismissed.” Counsel argued that since the Defendant did not appeal against the above Ruling, the decision remains binding until it is set aside by the appellate court. Counsel cited the following cases in support of this argument: • NWOKEDI vs. OKUGO (2002) 16 NWLR (Pt. 794) 441 at 449 • BALOGUN vs. ADEJOBI (1995) 2 NWLR (Pt. 376) 131 at 163 Also, counsel contended that the Claimant in his pleadings and evidence denied knowledge of any Pius Eze or Pius Akweze, who according to the Defendant was responsible for “taking in” the Claimant into the Defendant's Company through the back door without the knowledge of the Defendant. According to counsel, failure to produce the said Pius Eze or Pius Akweze as a witness works against the Defendant's case. This is based on the presumption that if the said Pius Eze or Pius Akweze was fielded as a witness, his testimony would have been against the Defendant. Counsel referred to Section 167(d) of the Evidence Act, 2011, and the cases of ONONUJU vs. STATE (2014) 8 NWLR (Pt. 409) 345 at 392 – 393 and UMAR vs. STATE (2014) 13 NWLR (Pt. 1425) 497 at 541 to 543. In the light of the foregoing, counsel urged the court to resolve issue one in favour of the Claimant. On issue two, it is counsel’s submission that there is no evidence before the court that the accident arose from inevitable accident and not by the negligent conduct of the Defendant, which means that the accident occurred by the negligent conduct of the Defendant and not by any inevitable accident. Similarly, counsel asserted that it is agreed by both parties that the accident was not as a result of any collision between the Defendant's lorry and another lorry, hence the accident speaks for itself; res ipsa loquitur, owing to the fact that the Defendant agreed that the bucket of their lorry fully loaded with chippings, they directed the Claimant to sit on a journey from Calabar to Aba, shifted and decoupled, pouring the contents of the lorry over the Claimant. In the same vein, counsel contended that the Defendant’s management deceived the Claimant's father not to report the accident to the Police on the ground that they would take care of the expenses for his treatment; which they failed to do, and in paragraph 21 of the Written Statement on Oath of the Claimant, the Claimant stated the particulars of negligence of the Defendant's lorry driver who was reckless in the driving of the said lorry which was heavily loaded with chippings by failing to drive at a reasonable speed. Thus, it is the opinion of counsel that the submission of the defence about the Claimant deliberately avoiding the police, as well as the absence of the Police Traffic Division Report is misconceived, because it was the duty of the Defendant's Driver to report the accident to the Police and not the Claimant. Furthermore, counsel is of the view that DW1’s evidence who was not present when the accident occurred, is worthless and inadmissible for being hearsay evidence. It is settled law that hearsay evidence such as that of DW1 is inadmissible in evidence. Counsel urged the court to expunge the evidence of DW1, citing the decision in NWOBOSI vs. ACB LIMITED (1995) 6 NWLR (Pt. 404) 658 at 679 According to counsel, the evidence of DW1 is hearsay because the purpose is to prove the truth of what the Defence of the Defendant is in the case of what transpired between the Claimant and the Defendant as regards the said accident when he was not even at the scene of the accident as admitted by him. On the principle of res ipsa loquitur, which in Counsel’s view is applicable to the facts of this suit, counsel referred the court to the case of ROYAL ADE NIG LTD & ANOR vs. NATIONAL OIL AND CHEMICAL MARKETING PLC (2004) 4 SCNJ 69 at 80 - 82, where the Supreme Court held, inter alia, as follows: “But where the thing is shown to be under the management of the defendant or his servants and the accident in such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the accident arose from want of care. The maxim of res ipsa loquitur is not a rule of law; it merely describes a state of evidence from which it was proper to draw an interference of negligence. It is 'no more than a rule of evidence affecting onus. It is based on common sense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the Plaintiff and are or ought to be within knowledge of the defendant. The essence of the maxim is that an event which in the ordinary course of thing was more likely than not to be caused by negligence was by itself evidence of negligence depending of course on the absence of explanation. In relying on res ipsa loquitur, a plaintiff merely proves the resultant accident and injury and then asks the court to infer therefrom negligence on the part of the defendant." It is counsel’s contention that the reliance by the Defence on the case of C & C CONSTRUCTION LTD & ORS vs. OKHAI (SUPRA) to the effect that if a defendant denies negligence, he may give evidence of inevitable accident although he has not specifically pleaded, is grossly misconceived, particularly in consideration of the holding per PATS ACHOLONU, JSC as follows: “A careful reading of these averments does not necessarily show that what happened was an inevitable accident- A situation if there was one which should have been specifically pleaded with clarity. It was not so pleaded as to leave no doubt. The expression inevitable accident' is not the same thing as 'An Act of God'. The appellants have sought to explain that what happened was an inevitable accident. The inevitability of an act or incident postulates the occurrence or happening of a thing over which no one could have foreseen or satisfactorily explains the occurrence which in the circumstances is so inexplicable that no blame can be attributable to the act or omission of anyone. Is that the situation here? I see it differently just as the respondent stated. The blame rise squarely at the feet of the appellant who apparently where not foresighted enough to reckon with the probable damage and unsecured crane could cause.” Furthermore, Edozie, JSC in the same C & C CONSTRUCTION COMPANY LTD (SUPRA), held thus: “The better practice however is for the Defendant who intends to rely on inevitable accident as a defence to plead such defence specifically and to give all necessary particulars relied on ... Pleading inevitable accident is one thing but proof thereof is a different matter. The onus is on the part who raises that defence to lead evidence to substantiate same." In the present suit according to counsel, the Defendant did not plead or lead evidence to substantiate inevitable accident as a defence, and on that note counsel urged the court to resolve issue two in favour of the Claimant. On issue three, counsel submitted that the Claimant has established his claim as to be entitled to same, and the Defence’ submission that the alleged payment of the sum of N553,810.00 by an unknown philanthropist suffices for the Claimant and that it would amount to punitive damages if this Court awards any other damages to the Claimant is misconceived. In the same vein, counsel submitted that said Newspaper Publication (Exhibit "C6) where the alleged payment of N533,810.00 was published was not made by the Claimant, it was a mere report of what the reporter wished to publish, and the Defendant has not claimed to be the said philanthropist, so awarding damages in this area would not amount to punitive damages. Again, counsel contended that the Defendant Counsel’s reliance on the said Exhibit "C6", makes the Defendant bound by the said Newspaper Publication as upheld in ONWUDINJO vs. DIMOBI (2006) 1 NWLR (Pt. 961) 318 at 337 where it was held thus: “A party such as the appellant who has tendered a document in a court of law and it is admitted as an exhibit at the end of the litigation either ‘sails joyfully with it in a boat of victory or sinks sorrowfully with it in a boat of defeat’. He cannot be a beneficiary of both at the same time.” See also OPARAJI vs. AHIHIA (2012) 4 NWLR (Pt. 1290) 266 at 282. According to counsel, the Defendant is bound by the following contents of the said publication in Exhibit C6 to wit: “According to a hospital source, one artificial leg costs about N300, 000.00. The 19 year old boy quit his studies to acquire a skill in auto mechanic following the inability of his parents to bear the burden of training him and his seven siblings. He had barely trained for two months before the ugly incident. He had gone to Calabar to repair a truck belonging to his boss which he was involved in the accident on December 13, 2014. PUNCH Metro had reported that the victim's father Okafor, who is currently out of job owing to ill health, accused the victim’s master, Bonny Mass Company of abandoning him. Chidiebere, the fourth child in a family of eight, had said the crash was due to the driver's recklessness as a result of drunkenness. He had also appealed to Government to give him a job, expressing willingness to do any type of legal job to keep body and soul together. Meanwhile, the Abia State Police Command insisted that it needed a formal report to arrest and prosecute the said driver. The Police Public Relations Officer, Mr. Udeviotu Onyeka, said the failure of the driver to report the accident also constitute a serious traffic offence. From the above therefore, it is counsel’s submission that the Defendant was the boss of the Claimant and had barely trained for two months before the accident occurred, the Defendant abandoned him after the accident, and the said accident was due to the defendant driver's recklessness as a result of drunkenness; as well as the fact that it was the duty of the Defendant's driver to report the accident, failure of which also constitute a serious traffic offence. Further, counsel submitted that the Defendant being the Claimant's employer owed him the duty of care and this duty was breached when the Defendant's driver directed the Claimant to stay on the bucket of the said lorry that was fully and heavily loaded with chippings, and the Claimant's two legs were amputated as a result of the said accident. It is counsel’s opinion that only the Claimant can explain his agony undergoing this ordeal, as averred in paragraph 23 of his written deposition filed on the 10th of July, 2017, resulting in Relief 23(b) endorsed in the Statement of Claim. According to counsel, it is head of damages based on loss resulting from the extent of pains and suffering and disability due to the injury sustained, that entitles the Claimant to the damages, as upheld in the Supreme Court’s decision in the case of UNITED BANK OF AFRICA & ANOR vs. MRS NGOZI ACHORU (1990) 6 NWLR 254 at 280-1, where it was held as follows: “The phrase “pain and suffering” has now become a term of art employed to describe the pain associated with the injury resulting from the damage suffered. The worse the injury, the greater the pain and suffering of a plaintiff who is aware that his expectation of life has been greatly affected and reduced by the injury. Hence when the Plaintiff makes a full recovery from his injuries, almost all his general damages will come under the he, id of pain and suffering. As against the head of claim of pain and suffering, loss of amenities of life, embraces all the claims which result from the “jury and by reason of which the Plaintiff's enjoyment of the ordinary pleasures of life have been impaired. Thus the head of damages arises whenever the Plaintiff, because of the injury is unable to enjoy the ordinary facilities of life as before...Thus, this is a head of damage based on the loss resulting from the extent of disability due 10 the injury subject-matter of the action. The claim is an objective matter, and will be awarded on the extent of loss, as long as the disability has been established.” Counsel also referred to the case of C & C CONSTRUCTION COMPANY LTD & ANOR vs. TUNDE OKHAI (SUPRA) In the same stride, counsel asserted that in the extant case before this court, there is overwhelming unchallenged and unrebutted evidence that the Claimant who is an apprentice with the Defendant lost his two legs which were amputated as a result of the said accident. Counsel drew the court’s attention to the case of ESEIGBE vs. AGHOLOR (1993) 12 SCNJ 82 at 110 - 111, where the Supreme Court held that factors for consideration in the assessment of general damages in personal injury cases include the following: 1. “The bodily pain and suffering that the plaintiff underwent and that which may occur in the future: 2. Whether or not such a plaintiff sustained permanent disability or disfigurement; 3. The loss of earnings cost by any such disability or disfigurement; 4. The length of time the plaintiff spent in the hospital receiving treatment; 5. The loss of amenities of life, if any; and 6. The age, status and expectation of life of the plaintiff. Counsel urged the court to hold that all the above considerations mentioned in the case of (ESEIGBE SUPRA) are applicable to the Claimant. Also, counsel submitted that Exhibit "C6" in the proceedings was tendered by the Defendant as part of its case and an admission of liability, and an admission against the interest of the Defendant who tendered Exhibit “C6”, is admissible in evidence against her, as it constitutes best evidence in favour of the opposite party and the court is entitled to accept and act on it, as was held in CHIEF ADEOYE A. FAGUNWA vs. CHIEF NATHANIEL ADIBI & ORS (2004) 7 SCNJ 322 at 336 - 338. Similarly, counsel argued that the claimant’s reliefs have been proved by evidence not challenged by the Defendant and as such remains proved, as decided in the case of MALLAM HAMIDU MUSA & ORS vs. ALHAJI YAHAYA KEFAS YERIMA & ANOR (1997) 7 SCNJ 109 at 124. Counsel urged the court to resolve issue three in favour of the Claimant. Regarding issue four, counsel is of the opinion that documents do not need to be specifically pleaded before they can be admitted in evidence, because the crucial issue is whether the facts in connection with the documents are pleaded, as held in the case of IPINIAIYE vs. OLUKOTUN (1996) 6 NWLR (Pt. 453) Pg. 141 at 166. According to counsel, the fact of some of the expenses incurred by the Claimant in treating the injuries sustained by him as result of the said accident pleaded in paragraph 16, accommodates other expenses not specifically mentioned in the pleadings, because it indicated there were further expenses to be incurred and they are as shown in Exhibit “C2”. Again, counsel contended that the submission that Exhibit "C2" is undated is misleading, in that Exhibit “C2” has the dates of the expenses made, and the issue of it being unsigned is unnecessary, owing to the reason that it was the maker that tendered it in evidence, particularly as the Defendant is not challenging the authenticity of the said Exhibit "C2". See AREGBESOLA vs.OYINLOLA (2011) 9 NWLR (Pt. 1253) 458 at 586. Counsel urged the court to resolve issue four in favour of the Claimant and enter judgment in his favour. On the 18th day of January 2018, the Defendant filed its reply on points of law wherein counsel responded seriatim to some issues of law raised in the Claimant’s Final Written Address. On the issue of doctrine of res ipsa loquitur raised in the Claimant's Final Written address, counsel submitted that the doctrine does not apply to the facts of this case; in view of the fact it is settled that where there is evidence of how the occurrence took place, reliance on res ipsa loquitur is misconceived and inappropriate as the doctrine of res ipsa loquitur is not meant to supplement inconclusive evidence of negligence on the part of a party. See OJO vs. GHERORO (2006) LPELR 2383 (SC) per Oguntade J.S.C. (pp. 55-56). According to counsel, there is evidence on record that the accident occurred as a result of the Defendant's driver swerving his vehicle to avoid a head on collision with a vehicle coming from the opposite direct on the lane of the Defendant's driver, which the Claimant as CW2 admitted this fact in his cross-examination. It is submitted by counsel that the Defendant specifically pleaded in paragraph 11 (c) and (d) of the Statement of Defence, and proved that the accident arose from inevitable accident and not by negligent conduct of the Defendant's driver in line with judicial pronouncement in C & C CONSTRUCTION LTD & ORS. vs. OKHAI (SUPRA) LPELR-821 (SC). Also, counsel asserted that the Defendant in pleading and proving inevitable accident does not fall below the standard set out in C & C CONSTRUCTION LTD & ORS. (SUPRA). On the issue of award of damages for pain and suffering and loss of amenities raised by Claimant's Counsel, it is the opinion of counsel that no principle can be laid down upon which damages for pain, suffering and disability can be awarded in terms of quantum. See IGHRERINIOVO vs. S. C. C. NIG LTD & (2013) LPELR-20336 (SC). In the same vein, counsel asserted that there is no yardstick by which the court can measure the amount to be awarded for pain and suffering or ensuing disability, and the courts consider the totality of evidence with the peculiar circumstances of each case in assessing damages for pain and suffering; and are cautioned against awarding excessively high damages, or awarding damages based on sentiments. See BELLO vs. DADAH & ANOR (2016) LPELR-46337 (CA). See also IGHRERINIOVO (SUPRA). Particularly, counsel emphasized the point in assessing damages the court proceeds with the underlying assumption that damages are compensation for injury sustained and not meant to be punitive, as revealed in the case of TECHNO TECH (NIG) LTD vs. OGBUMBAYO (1999) LPELR-6760 (CA) AND KAJA vs. OKE (2013) LPELR-19908 (SC). Having regard to the totality of the evidence and the peculiar facts of this Case, counsel urged the court to refuse to award damages for pain and suffering and loss of amenities to the Claimant. Responding to the Claimant Counsel’s argument that the Claimant’s reliefs were unchallenged, counsel submitted that the Relief (c) was specifically denied by the Defendant in its Statement of Defence, the effect of a specific denial is to put the Claimant to the proof of the facts alleged. See JUDCOM LTD vs. OGUNS ELECTRICALS (2003) LPELR-7253(CA). It is counsel’s submission that since the Claimant failed to furnish further evidence in proof of Relief (c), Relief (c) remains unproved. The court was urged by counsel to refuse the Claimant’s reliefs and dismiss this suit in its entirety. COURT’S DECISION I have heard the submissions of learned counsels for the parties in their final written addresses. I will briefly review the facts and evidence presented to the court by the parties before determining the issues and the claims sought by the Claimant in this case. The Claimant and his father, Donatus Okafor, gave evidence in support of the Claimant’s case. Their evidence is materially the same and it is to the effect that the Claimant is an apprentice mechanic with the Defendant. The Defendant, who is into general merchandise including transportation of goods by road, engaged the Claimant in November 2014 as an apprentice mechanic to work at the Defendant’s mechanic workshop situate off Portharcourt/Enugu Expressway, Aba, Abia State, at an unspecified monthly stipend. The workshop is where the Defendant’s vehicles are maintained or repaired. In December 2014, the Defendant sent the Claimant and one of its senior mechanics to Calabar to repair one of the Defendant’s lorries with registration number XD 194 SSM which broke down in Calabar. After repairing the lorry, the Claimant and the senior mechanic accompanied the lorry back to Aba on 13th December 2014. The lorry was loaded with chippings. The driver, senior mechanic and the conductor sat in front of the lorry but the driver and senior mechanic told the Claimant to sit in the bucket of the lorry where the chippings was loaded. The Claimant obeyed and sat on the chippings in the bucket of the lorry. During the journey, the driver, simply known as Mr. Battle, drove the lorry recklessly and dangerously. He didn’t care about the deplorable condition of the road or other road users or the fact that the Claimant was sitting on the chippings. Along Azumini Road in Abia State, as a result of the driver’s reckless driving, the bucket of the lorry pulled off from the lorry and it fell with its content over the Claimant. In the efforts of the driver, the senior mechanic and the conductor to rescue the Claimant from the chippings, they cut off the Claimant’s two legs after which they took the Claimant to Horstman Hospital where the Claimant was admitted. The driver, senior mechanic and the Defendant abandoned the Claimant in the hospital. The Defendant deceived the Claimant’s father not to report the incidence to police on the promise that the Defendant will bear the hospital bills and pay compensation. The Defendant however failed to fulfill its promise except the sum of N20,000 paid to the hospital in 2014. The Claimant’s legs were properly amputated by the hospital. The bills for the treatment of the injuries sustained by the Claimant in the accident were being settled by the Claimant’s father with monies borrowed from friends and relations. When the Defendant failed to take up the responsibility of the Claimant’s treatment, the Claimant’s father engaged a solicitor to write to the Defendant. This led to series of correspondences between the Claimant’s solicitor and that of the Defendant. The Claimant’s father took note of some of the expenses incurred in the treatment of the Claimant up to 22nd May 2015 which came to the sum of N324,850.00. According to the Claimant, the driver of the defendant’s lorry was negligent and the particulars of negligence are that the driver failed to have a proper look out while driving; the driver failed to drive at a reasonable speed; he drove recklessly and dangerously and had no regard for the safety of other road users. The driver also compelled the Claimant to sit in the bucket of the lorry fully loaded with chippings. Prior to the accident, the Claimant was an able bodied young man and he was fit to perform his duties as an auto mechanic. He is now limping and can no longer perform his duties or any other occupation for the rest of his life. He has suffered permanent disability and has lost his ability to earn a living. He is entitled to compensation for the loss of his two legs as a result of the accident. Facts were also stated that the defendant ought to be a contributor to the Nigeria Social Insurance Trust Fund from which the Claimant should get compensation but the Defendant is not a contributor. In their further or additional evidence, the Claimant and his father also stated that the Defendant engaged the Claimant as shown in the solicitor’s letter, the hospital receipts and the ruling of this court on 25th May 2016. The Claimant was not smuggled into the company. The Claimant and his father does not know any person called Pius Eze. The Claimant’s father visited the MD after the accident but the MD deceived him not to report the matter to the police. The Claimant applied to the Defendant for employment and he was employed. The Defendant collected the Claimant’s passport and requested the Claimant’s father to stand surety. The Defendant assigned the claimant to Calabar with the senior mechanic and no fund was provided for him to join public transport to Aba. The driver and the mechanic did not allow him sit in the cabin and it was not him who elected to sit in the bucket of the lorry. They told him the cabin will not contain him so he should sit in the bucket. The driver was driving recklessly and it was the driver and mechanic who cut off his legs. The fact that a philanthropist paid the Claimant’s hospital bills does not absolve the Defendant from liability. The Defendant’s witness is Sir Anthony Nwosu, the Transport Manager of the Defendant. He narrated in his evidence that the Defendant did not engage the Claimant as apprentice mechanic. The Defendant is not aware of the engagement of the Claimant and has no record of the Claimant’s engagement as apprentice mechanic. After the incident of 13th December 2014, the Defendant carried out an investigation which revealed that the Claimant’s father colluded with one of the Defendant’s drivers, Pius Eze, to secretly bring in the Claimant into the Defendant company without the knowledge or authority of the Defendant. Pius Eze does not have the authority of the Defendant to engage apprentice for the company. The Claimant did not go through the Defendant’s procedure of engaging apprentices, which is why the Defendant does not have any record of engagement of the Claimant and was not aware of the presence of the Claimant in the Defendant company before the incidence of 13/12/2014. The Defendant did not assign the Claimant to go with the Defendant’s mechanic to Calabar but it was the Claimant who made a private arrangement with the mechanic to accompany the mechanic without the knowledge of the Defendant. The Defendant’s mechanic provided funds from his private resources for the Claimant to join public transport to Aba but the Claimant opted to join the Defendant’s vehicle. It was also the Claimant who opted to sit in the bucket of the vehicle despite the instruction and insistence of the driver and the mechanic that the Claimant sit with them in the cabin of the vehicle. In the course of the journey, the driver swerved slightly to avoid a head on collision with another vehicle which was overtaking another vehicle. In the process, the bucket of the Defendant’s vehicle pulled off and poured its content over the Claimant’s legs. The driver and the mechanic did not cut off the Claimant’s legs. The legs were already severed by the time they got to the Claimant to rescue him. They rushed the Claimant to Horstman Hospital and deposited money for the Claimant’s treatment. The Claimant’s father has never met with the management of the Defendant and did not have any discussion with the Defendant about police involvement in the matter. The Claimant’s father avoided meeting with the Defendant’s Managing Director as he was the one who smuggled the Claimant into the Defendant. The Defendant was not responsible for the Claimant’s injury but out of sympathy, paid the sum of N110,000 for the treatment of the Claimant. The Defendant refused to render further financial assistance to the Claimant when it received a letter from the solicitor to the Claimant’s father in which the Claimant’s father attempted to shift liability of the Claimant’s injury to the Defendant. The Defendant replied the letter through its solicitors and denied liability for the Claimant’s injury. The Defendant’s driver was not negligent or reckless. The driver was also driving the vehicle at a reasonable speed and it was not his fault that the accident happened. The driver only swerved to avoid an accident with an oncoming vehicle. The Claimant’s injury resulted purely from an accident. The Claimant took an unreasonable risk when he chose to sit in the bucket of the vehicle when he was aware the vehicle carried chippings and the bad condition of the road. The Claimant was negligent and reckless. The Claimant is of full age and he is capable of taking the right decision for his safety. Sitting in the bucket was not the only choice left for the Claimant. After this suit has been filed, the Punch Newspaper of 16th September 2015 published an interview granted by the Claimant’s father where he stated that a philanthropist has settled the Claimant’s medical bill of N533,810. Going by the interview, the Claimant suffered no loss as to payment of his medical bills as they have been settled. The Defendant’s father has not reported the matter to the police till date. The Defendant is not liable for the injury sustained by the Claimant. From the evidence adduced by the parties and the submissions of counsels in the final written addresses, the issue whether there was an employment relationship between the Claimant and Defendant as to make the Defendant liable for the Claimant’s injury has cropped up. The claim of the Claimant against the Defendant is for payment of monetary sums for injuries and incapacity he suffered during his employment with the Defendant. In other words, the Claimant attributes liability for his injury to the Defendant who he said was his employer, and the injuries were sustained during the course of the employment as a result of the negligence of one the Defendant’s drivers. In paragraphs 3 (a - e) of the statement of defence, the Defendant denied employing the Claimant and averred that the Defendant did not engage the Claimant as apprentice mechanic and was not aware nor has record of the engagement of the Claimant as apprentice mechanic. The Defendant further averred that the Claimant did not go through the Defendant’s procedure of engaging apprentice but he was brought in secretly by one Pius Eze, a driver with the Defendant, without the knowledge or authority of the defendant. The defendant also said that the procedure of engaging apprentice is submission of application together with a passport photograph to the Defendant after which the applicant and his surety are interviewed by the Defendant’s Managing Director and the Transport Manager then a file is opened for the successful applicant before he is engaged as an apprentice. But the Claimant did not go through this procedure. The learned counsel for the Defendant, Mr. Louis Onyenemezu, argued in the Defendant’s final written address that there was no employment relationship between the Claimant and the Defendant, consequently, this suit is not a labour matter and this court has no jurisdiction to entertain the suit. In response to this submission of the Defendant’s counsel, the counsel for the Claimant argued in the Claimant’s final address that this issue has been resolved in the Ruling of this Honourable Court delivered in this suit on 25th May 2016 where this court held that the Claimant, being an apprentice of the Defendant, is a worker in the Defendant Company and by virtue of that relationship, there exists between the Claimant and the Defendant, a labour or employment contract. Let me set the records straight with respect to the opinion of this court in the said ruling of 25th May 2016. Contrary to the arguments of the Claimant’s counsel, I did not make a finding of fact in that ruling that the Defendant actually employed the Claimant as an apprentice. Of course, evidence had not been led in the matter at that time. I did mention in that ruling that the facts pleaded by the Claimant in paragraphs 1 and 3 of his statement of facts disclose that the Claimant was engaged by the Defendant as an apprentice mechanic. I went further to consider whether an apprenticeship creates an employment or labor relationship between the Claimant and the Defendant as to clothe this court with jurisdiction to entertain the case. It was on the basis of the averments of the Claimant that he was engaged as apprentice mechanic that this court held that it created labor relationship between the Claimant and the Defendant. What this court considered and determined in the NPO was whether the Claimant has shown an employment relationship with the Defendant as to clothe the court with jurisdiction to entertain the matter. The court did not make any finding of fact of the claimant’s employment. This court specifically stated in that ruling that: “Whether or not he was actually so engaged by the defendant is not to be determined at this stage”. It should be noted that the circumstances in which the court determined the motion is different from the circumstances in this judgment. The ruling in question was determined on the basis of the pleading of the Claimant only. However, evidence has now been taken in the matter and issues have been joined on the question whether the Claimant was an employee of the Defendant. It is by the evidence adduced by the parties this court can properly determine if there was an employment relationship between the parties at the time of the Claimant’s injury. Therefore, the ruling of this court did not conclude the issue of the Claimant’s employment relationship with the Defendant; neither does it preclude the Defendant from raising the issue again in his final written address. I have stated earlier in this judgment that the basis of the Claimant’s claim against the Defendant in this suit is his claim that he was an employee of the Defendant as an apprentice mechanic, and he sustained the injury during the employment. The first duty of the Claimant in this case is to prove that he was employed by the Defendant and it was in the performance of his duties in the employment the accident happened. This burden of proof on the Claimant to prove his employment by the Defendant became crucial to the success of his claim in view of the Defendant’s denial of any employment relationship with the Claimant. It did not stop there. The proof is also an important factor in the jurisdiction of this court to determine the claim of the Claimant. Therefore, for this court to continue to assume jurisdiction in this matter and to determine the claim of the Claimant against the Defendant, he must establish the fact that he was employed by the Defendant as apprentice mechanic. In the evidence of the Claimant and his father, they told the court that the Claimant was engaged by the Defendant in November 2014 as an apprentice mechanic to work at the Defendant’s mechanic workshop situate off Portharcourt/Enugu Expressway, Aba, Abia State, at an unspecified monthly stipend. In their further evidence, they told the court that the Claimant applied to the Defendant for employment and he was employed. The Defendant collected the Claimant’s passport and requested the Claimant’s father to stand surety. They also said the fact that the Defendant engaged the Claimant is shown in the solicitor’s letter, the hospital receipts and the ruling of this court on 25th May 2016. The Claimant didn’t not plead or tender any employment letter in evidence. Although the Claimant and his father told this court in their evidence-in-chief that the Claimant applied to the Defendant for employment and he submitted a passport photograph to the Defendant, the Claimant however contradicted this evidence during his cross examination. This was what he said: “I did not write any letter of application before I was employed. I did not submit any passport photograph”. If the Claimant did not apply for employment, when then did the Claimant’s father stand surety for his employment? The Claimant and his father were obviously not truthful to this court when they initially said the Claimant applied for employment and submitted a passport. It also follows that his father did not stand surety for his employment. It is clear from the evidence of the Claimant that he did not apply for employment with the Defendant and the Defendant did not give him any employment letter. Other than the Claimant’s averment that he was engaged by the Defendant, he did not show any evidence to establish his allegation that the Defendant employed him as an apprentice mechanic. He did not also state the conditions of the employment. The Claimant stated that he was engaged at an “unspecified monthly stipend”, he did not show any evidence of payment of the alleged “unspecified monthly stipend” to him at any time nor did he mention the particular person or official in the Defendant who employed him or whom he dealt with when he being employed. The Claimant’s father stated in his evidence-in-chief that he met with the Defendant’s MD only after the accident. However, under cross examination, he said does not know the MD before the accident and after the accident. He also said he has not met the MD up till now but only met a manager after the accident whose name he does not know. From the evidence of the Claimant’s father, it is clear that the Claimant and his father did not meet or see the MD when the Claimant was allegedly employed. They have not also identified or mentioned any officer of the Defendant who employed the Claimant into the Defendant company. The case of the Claimant is full of doubts as to his employment by the Defendant. In want of anything to show he was employed by the Defendant, the Claimant resorted to the letter from the defendant’s solicitor dated 24/1/2015, hospital receipts and the ruling of this court given on 25th May 2016. I have earlier clarified the position of this court in the said ruling. The solicitor’s letter is Exhibit C5b while the hospital receipts are Exhibits C3 (A to Q). In the letter, the Defendant’s solicitor stated clearly at paragraph 3 of the letter thus: “Our client was not aware of and never authorized Chidiebele’s Okafor’s engagement to perform any form of assignment for our client”. There is nothing in the letter suggesting the Defendant employed the Claimant. Also, the hospital receipts were issued in the name of the Claimant. There is evidence from the parties that the Defendant paid some bills in the hospital for the Claimant. The Defendant’s name appearing on the bills paid by it does not imply that an employment relationship exists between the parties. These exhibits are not the Claimant’s employment documents and they do not contain any information on which the Claimant can rely on in his allegation that the Defendant employed him as an apprentice mechanic. The fact that there was an employment relationship between the parties is a matter of fact. The Claimant must be able to produce evidence to prove the fact. In order to proceed in this case to determine the liability of the Defendant for the injury of the Claimant, this court has to be satisfied that there was in fact an employment relationship between the Claimant and the Defendant. It is only when that fact has been established that the court can examine the claims of the Claimant. Perhaps if facts were made available pointing to events or circumstances wherefrom the court could have inferred the existence of such a relationship, the court may have viewed things differently. Unfortunately, no facts are made available either pointing to the Claimant’s regular schedule of duties or his day to day activities in relation to his employment prior to the accident. No evidence is also made available as to any payment of the said unspecified stipend as alleged by the Claimant. The burden of proof in this respect is on the Claimant. No such evidence has been adduced before this court. This court cannot, out of sympathy for the Claimant, draw a labour relationship between the parties in the absence of proof from the Claimant. To do that will amount to pure speculation. The Claimant has not shown that he was employed by the Defendant as an apprentice. Similarly, the Claimant has failed to show that the Defendant owed him a duty of care as a servant which duty was breached by the occurrence of the accident on 13th December 2014. Consequently, his presence in the Defendant’s lorry at the time of the accident cannot be said to be in the course of his employment. In his pleading and evidence, Claimant made these allegations against the driver of the Defendant’s lorry and a senior mechanic of the Defendant: They compelled the Claimant to sit at the bucket of the lorry fully loaded with chippings; the driver drove the lorry recklessly and dangerously; the driver didn’t care about the deplorable condition of the road or other road users; the driver failed to have a proper look out while driving; the driver failed to drive at a reasonable speed. The Claimant stated further that as a result of these acts of the driver, the bucket of the lorry where he was sitting pulled off from the lorry and it fell with its content over him. To save him, the driver and the senior mechanic of the Defendant cut off the Claimant’s two legs, took him to Horstman Hospital and abandoned him there. The Claimant has, by these allegations, attributed the accident and his injury to the fault of the Defendant’s driver and senior mechanic, hence, he instituted this action against the Defendant claiming both general and special damages from the Defendant. In other words, the Claimant holds the Defendant vicariously liable for the acts of the driver and the senior mechanic. The case of the Claimant is also materially incompetent for his failure to join the said driver and the senior mechanic to this suit. It is manifest from the Claimant’s pleadings that the driver and the senior mechanic are the principal tortfeasors. Besides the fact that their names were not mentioned by the Claimant, he also did not deem it necessary to join them in his suit as Defendants to his claim. In a case of this nature were the Claimant seeks to hold the Defendant vicariously liable for the alleged negligence of another person, the claim cannot be determined without the presence of the alleged principal tortfeasors in the case as a Defendant. In IYERE vs. BENDEL FEEDS AND FLOUR MILLS LTD (2001) FWLR (Pt.37) 1166 at 1178, it was held thus: “It is trite law that if a party claiming for negligence in court against a natural or juristic person and a servant of that natural or juristic person is the principal tortfeasor, the servant must be joined because the vicarious liability of the master is predicated or consequent upon that of the servant”. Also, in CHUKWU vs. SOLEL BONEH (NIG.) LTD (1993) 3 NWLR (Pt.280) 246 at 251, it was held: “In an action for negligence, if the principal actor, the offending servant is not joined as a party so that his liability may be established, the question of finding the master vicariously liable can never arise. Consequently, once a servant is not joined in the action, the action is incompetent ab initio and a trial court should not waste its time going into the merits of the case.” As it is in this case, the vicarious liability or otherwise of the Defendant for the Claimant’s injuries can be considered only when the servants of the Defendant who are alleged to have committed the negligent acts are joined to this action and their liability is first established. I cannot determine the liability of the Defendant for the Claimant’s claims when its servants who allegedly caused the Claimant’s injuries are not parties to the suit. I think it is proper for the servants of the Defendant who were accused of negligence to be found liable first before the Defendant can be held vicariously liable for the acts of those servants. This can only be done if the servants are sued together with their employer. The Claimant has failed to join the principal tortfeasors in this suit. This is fatal to the Claimant’s case. The failure renders his case incompetent. See CHUKWU vs. SOLEL BONEH (NIG.) LTD (supra) In addition to the failure of the Claimant to establish an employment relationship between him and the Defendant, he also failed to join the driver and the senior mechanic to this suit. The Claimant’s case is not competent before this court nor is it a case for this court to determine. It is now clear the case of the Claimant does not arise from labour matter as to cloth this court with jurisdiction. As rightly submitted by the defendant’s counsel, the fact that this court had previously assumed jurisdiction in this case in the ruling of 25th May 2016, is not a bar for the issue of jurisdiction to be revisited after evidence has revealed that there was no labour relationship between the parties. The issue of court’s jurisdiction is very fundamental in the adjudicatory process and it can be raised at any time. It was held in DAYO ADELEYE MINING & CONSULTING CO. LTD vs. JAKURA MARBLE IND. LTD (2007) ALL FWLR (Pt.390) 1531 at 1549 that where a matter is heard on the merits and after hearing evidence the court discovers it has no jurisdiction in the matter, it should strike out the case. In the circumstance of this case, it is my view that the proper order to make is to strike out the case. For all the reasons given above, this suit is struck out. Parties shall bear their respective costs. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge