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JUDGMENT 1. Introduction & Claims The Claimant filed his Form 1 on 26/9/14 and by his amended Complaint and statement of facts dated 11/2/15 sought the following relief against the Defendant - An Order that the sum of =N=10,000,000.00 only be paid by the Defendant as compensation for damages done to the Claimant's right index finger in the course of his employment. The Claimant accompanied his Complaint with a statement of facts and all other requisite frontloaded processes. The 1st Defendant and the 2nd Defendant who was subsequently joined in this suit filed their respective statement of defence together with all documents as required by the Rules of this Court. 2. Case of the Claimant The Claimant opened his case on 10/2/16 when he testified as CW1, adopted his witness statement on oath dated 17/2/15 as his evidence in chief and tendered 9 documents as exhibits. The 9 documents were admitted in evidence and marked as Exh. C1-Exh. C9 respectively. The case of the Claimant as revealed from his evidence in chief is that he was employed by the 1st Defendant via an Offer of Appointment letter dated 6/9/10; that by a letter dated 15/1/11 his appointment was confirmed by the 1st Defendant; that on 28/7/12 while he was working on a machine, the belt pulley of the machine caught his right hand; that the result of this caused the loss of his right index finger; that he was taken to the hospital the very day of the incident; that he was treated and the wound was stitched; and he was discharged after four days on the condition that he goes for dressing of the wound twice a week; that he was completely discharged on the 20/9/12; that though he was completely discharged, he sometimes felt pain in his fingers; that he brought to the attention of the 1st Defendant that he couldn’t use his fingers and so he sought other medical attention which cost him =N=10,000.00 (Ten Thousand Naira); that the sum of =N=10,000.00 was refunded back to him by the 1st Defendant company because they were made aware of the further medical attention sought; that he later approached the 1st Defendant to enquire about his insurance benefits but did not get a favourable response with regards to same; that the non-payment of his insurance benefits caused him to approach the Office of the Public Defender (OPD) to help intervene in the matter and that the Office of Public Defender invited the 1st Defendant for a meeting but the issue could not be resolved amicably. Under cross examination by the 1st Defendant, CW1 stated that he worked at the Recycling Department of 1st Defendant; that he was not trained on how to work in that Department; that he was employed as a Cleaner; that the 1st Department picked some people to train as engineers to work to on machine; that he was trained to work on machine in that Department; that nobody pushed him into the machine; that he was taken to the hospital by the 1st Defendant when the incident happened; that the 1st Defendant paid his hospital bills; that he was not given any discharged certificate; that the 2nd Defendant visited the 1st Defendant premises to assess the level of his injury; that he worked with the 1st Defendant after the incident before he was disengaged; that he was paid his terminal entitlements at the point of disengagement and that he was paid 25% of his pension. While being cross examined by the 2nd Defendant, CW1 testified that since 2012 he has been demanding for benefit for his injury from the 1st Defendant; that he demanded same from Mr. Mistra and the Personnel Manager; that the Personnel Manager told him he knew nothing about Insurance claims; that the injury he suffered disturbed him from working; that he often complained of pains on his fingers and that the pains continue till date. 3. Case of the 1st Defendant On 29/3/17, the 1st Defendant opened its defence. It called one C Samuel Oluwagbami Salami as its lone witness and testified as DW1. The witness adopted his witness deposition dated 3/3/15 as his evidence in chief and tendered 10 documents as exhibits. The documents were admitted in evidence without objection and marked as Exh. D1-Exh. D10. The case of the 1st Defendant as shown in its pleadings is that it deploys and makes use of high standard/quality instruments and machineries that meet international specifications on standards and safety measures; that it provides several safety gadgets and equipment for its employees and its workers, as per requirement of the job; that t its employees and workers are mandated to abide by safety measures put in place on its factory; that the Claimant was totally negligent in failing to use/comply with the 1st defendant’s safety measures and standards for which he negligently suffered the alleged accident; that upon sustaining injury, it sent the claimant to hospital and medical consultants at its expense; that it has offered the claimant the best medical treatment available following the accident which he negligently suffered; that the accident involving the claimant was duly reported to the insurance company – 2nd defendant and every necessary processes were duly followed/observed; that that it has done everything required/expected of it both in law and moral grounds, on behalf/favour of the claimant following the accident/injury of the claimant, which happened on account of his negligence; that in compliance with the provisions of Employees Compensation Act, Trade Dispute Act and relevant industrial/labour related laws, it has done all that is required of it and has even exceeded same, on humanitarian ground. Under cross examination by the Claimant's Counsel, DW1 stated that the Claimant was working on machine at the time of the accident; that the Claimant was employed as a Cleaner but he has moved up to the position of Operator after training; that the Claimant was good at his job; that 1st Defendant insured all its employees including himself; that 1st Defendant received the insurance sum; that insurance company did not give anything to the Claimant; that the insurance covered the Medical bill; that the insurance pays the 1st Defendant and that 1st Defendant would also pay the Claimant. Under cross examination by the 2nd Defendant DW1 stated that the Insurance Policy is under the Workmen Compensation Act and that aside from medical bill there was also payment for temporary disability. 4. Case of the 2nd Defendant The 2nd Defendant opened its case on 18/7/17 and called one Iroro Iheme as its lone witness. The witness testified as DW2, adopted her witness deposition dated 31/3/17 as her evidence in chief and tendered one document as exhibit. The document was admitted without objection and marked as Exh. CH1. The case of the 2nd Defendant is that the 1st Defendant in this matter is its client; that the Claimant is a former employee of the 1st Defendant; that the 1st Defendant took a Workmen Compensation Policy with the 2nd Defendant sometimes in the 2012; that when the Claimant got injured under the employment of the 1st Defendant he suffered injury to his hand; that the Claimant did not for once approach the 2nd Defendant for the payment of any insurance benefit whatsoever; that there was never a time the Claimant or the Office of the Public Defender, the Claimant’s Solicitor approached it in respect of the Claimant’s insurance benefit either by writing or otherwise; that the 2nd Defendant does not have any contract of insurance with the Claimant rather the 2nd Defendant contract is with the 1st Defendant in this matter which is the Workmen Compensation Policy; that when the 1st Defendant informed the 2nd Defendant of the injury the Claimant suffered, the 1st Defendant was paid the sum of =N=638,248.10 (Six Hundred and Thirty Eight Thousand Two Hundred and Forty Eight Naira Ten Kobo) for the Workmen Compensation Policy it runs with the 2nd Defendant; that based on the information supplied by the 1st Defendant to the 2nd Defendant about the injury suffered by the Claimant the 2nd Defendant agreed with the 1st Defendant that the sum of =N=638,248.10 (Six Hundred and Thirty Eight Thousand Two Hundred and Forty Eight Naira Ten Kobo) be paid to them as full and final settlement of their claim in respect of the Workmen Compensation Policy between the 1st Defendant and the 2nd Defendant; that the 2nd Defendant is not in any way liable to the Claimant in respect of the Workmen Compensation Policy it entered with the 1st Defendant; that the 1st Defendant has collected the benefit that accrued from the compensation policy and that whether same was fully paid to the Claimant or partly paid to the claimant by the 1st Defendant is not within the purview of the 2nd Defendant’s business relationship with the 1st Defendant. Under cross examination by the Claimant, the witness stated that the Claimant did not approach 2nd Defendant for claims; that the Claimant is not so expected; that it is the practice for 2nd Defendant to honour receipt submitted by 1st Defendant; that he does not know if the Claimant is aware of the medical bills submitted by 1st Defendant; that he does not know if the Claimant was involved in the transaction; that there was no collusion to deprive the Claimant his benefit and that he does not know if the Claimant got anything for his injury. While being cross examined by the 1st Defendant, the witness stated that she has been with 2nd Defendant for 9 years and 6 months; that she is aware that 1st Defendant has insurance policy with the 2nd Defendant; that as at the time of the claim 1st Defendant has paid its premium; that she is aware of the claims of the Claimant in this matter; that the 1st Defendant reported a case of accident to 2nd Defendant; that it was the basis of the reports and document submitted then that the 2nd Defendant conducted verification exercise; that from the Medical report submitted, Claimant did not have permanent disability; that the Claimant was allotted =N=9,248.10 as temporary disablement benefit; that =N=629,000.00 was allotted for medical expenses is payable to the 1st Defendant since there was no permanent disability. 5. Submissions of Counsel The 1st Defendant filed a 10-page final written address on 30/1/18 and set down the following issue for the just determination of this case - Whether the Claimant has successfully proved/substantiated the reliefs claimed/sought in this suit, based on the pleadings and evidence before the Court. It was the submission of the learned Counsel for the 1st Defendant that the burden is on the Claimant to prove his case by credible and admissible evidence; that the case of the Claimant is anchored on the payment of compensation for the accident that resulted in the loss of his left hand/right index finger while on duty in the 1st Defendant; that the Employee Compensation Act has provided guidelines for the computation of compensation for accidents that occur in the course of employment and the 1st Defendant insured all its employees including the Claimant. Counsel further submitted that should there be need to pay any compensation, the 2nd Defendant being the insurance company is the party liable to pay same. Respecting claim for =N=10,000,000.00 as damages, Counsel submitted that this claim is akin to a claim for special damages and that Claimant has not strictly pleaded or proved same, citing Ore & Ors. v. A.G, Benue State & Ors. (2011) LPELR-4774(CA) & Union Bank of Nigeria Plc v. Alh. Adams Ajabule & Anor. (2011)18 NWLR (Pt. 1278) 152. Learned Counsel prayed the Court to dismiss the case of the Claimant against the 1st Defendant in its entirety. The final written address of the 2nd Defendant is a 7-page document filed on 26/3/18. In it, learned Counsel set down a lone issue as follows for determination - Whether the Claimant is entitled to Judgment against the 2nd Defendant in the circumstances of this suit. Learned Counsel submitted on behalf of the 2nd Defendant that the 2nd Defendant had no business with the Claimant; that 2nd Defendant paid the sum of =N=638,248.10 as the full and final settlement of workmen claim of the 1st Defendant which includes the medical bill of the Claimant and his compensation for loss suffered by him; that the Claimant went back into the employment of the 1st Defendant after about 31 days of being treated of his injury and worked with 1st Defendant for over two years before he was relieved of his job; that there is no evidence of any medical condition faced by the Claimant as a result of the injury he sustained in his hand. Learned Counsel added that indeed, the 2nd Defendant is not a proper party to this suit and that the best the 1st Defendant should have done would have been to bring a third part action against the 2nd Defendant. Counsel urged the Court to dismiss the case. On 16/4/18, learned Counsel to the Claimant filed a 7-page final written address in which a lone issue for determination was set down as follows - Whether the Claimant has proved his case and is thus entitled to the reliefs sought. Learned Counsel argued that the employer has a duty of care, a duty to protect the health, welfare and safety of workers at work and is liable to pay compensation to the worker where he sustains injury, citing Suleiman v. Hongzing Steel Company Limited (2015)59 NLLR (Pt. 204) 23; that the 1st Defendant did not provide the Claimant with any form of protective gear like gloves and helmet; that this practice is against the provision of the Factories Act. Counsel further cited Kabo Air Limited v. Mohammed (2015)62 NLLR (Pt. 220) 657(CA). Counsel prayed the Court to hold that the Claimant has proved his case as required by law and hence entitled to the reliefs sought. 6. Decision I have read with clear understanding all the processes filed by learned Counsel in this case. I heard the oral testimonies of all the witnesses called at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted in this case. I also listened attentively to the oral submissions by Counsel. Having done all this, I narrow the issue for the just determination of this case down to be as follows - Whether the Claimant has adduced sufficient and credible evidence in support of his claims. The nature of adjudicatory proceedings in this country places the burden of proof on he who approaches the Court for judicial redress. It is thus for he asking for reliefs to adduce cogent, credible and admissible evidence in support of his case. Such credible and cogent evidence may be either oral or documentary or even both. This state of the law is supported by both the statute law See Section 131 &132, Evidence Act, 2011; and the case law. See Jabre v. Jabre (1999)3 NWLR (Pt. 596) 606 at 620. The relief sought by the Claimant is for 'An Order that the sum of =N=10,000,000.00 only be paid by the Defendant as compensation for damages done to the Claimant's right index finger in the course of his employment''. The evidence in chief of the Claimant in support of this claim is contained in his 10-paragraph Claimant's witness statement on oath dated 17/2/15 and adopted on 10/2/16 and tendered 9 exhibits. I perused the pleadings of the Claimant along with his evidence in chief and the 9 exhibits tendered and admitted. It is important to stress that pleadings is the basis upon which the case of a party is founded. Parties are expected in civil cases to lay foundation for their respective case and to lead evidence as appropriate in support of same. It is settled position of the law that the parties to a civil suit as well as the court itself are all bound by the pleadings the importance of which in civil proceedings cannot be over- emphasised. It is the basis of the parties' respective cases where they present the summary of their position in the case in a narrowed down manner and in the form of issues upon which they rely as the basis of their stand (or position) in the case. The purpose of such exercise which is enjoined under our adversary system (of practice and procedure) is to give due notice to each other and to avoid surprises on what they are going or coming to face in conducting their cases during the trial. It also allows the parties to agree (i.e. admit) or disagree (i.e. deny) with the facts or issues presented or averred by their adversaries. At the end of the exercise, when issues are said to be joined it affords an opportunity for the Court to know all the issues admitted or denied by the parties. Those admitted need no proof while those denied or are in controversy will call for proof. The attitude or approach of the Court towards pleadings of the parties in a civil suit is to construe such pleadings strictly or even sometimes technically. Thus, parties are bound by their pleadings and will not be allowed to deviate from it or to introduce any issue or evidence which is not covered by or based on their pleadings. See George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; (1963) 1 All NLR 71 at 77; Oduka & Ors. v. Kasunmu & Ors. (1968) NMLR 28; Aderemi v. Adedire (1966) NMLR 398 at 401; Ogida v. Oliha (1986) 1 NWLR (Pt.19) 786; Thomas v. Olufosoye (1985) 3 NWLR (Pt.13) 523; Overseas Construction Ltd. v. Creek Enterprises (Nig.) Ltd, (1986) 3 NWLR (Pt.13) 407 at 418-419; Lawal v. G.B. Ollivant (Nig.) Ltd. (1972)1 All NLR (Pt.1) 207; Metalimpex v. A.-G. Leventis & Co. (Nig,) Ltd, (1976)2 SC 91 at 102 and Ehimare v. Emhonyon (1985) 1 NWLR (Pt.2) 177 at 183. In a suit of this nature, pleadings of the Claimant coupled with his evidence in chief must necessarily provide a nexus between the case of the Claimant and the Defendant. In other words, there must be a connection between the pleadings and evidence led on the one hand and the person sued on the other hand. There must be no disconnect. Where therefore there is a disconnect or no connection between the pleadings filed and evidence led in support of same vis a vis the person sued, the burden of proof required is said not to have been discharged by the Claimant. Essentially, the case of the Claimant as revealed in both his evidence in chief, the exhibits tendered as well as evidence under cross examination is that while working on a machine with the Defendant on 28/7/12, ''the belt pulley of the machine caught my left hand; and as I tried to use my right hand to rescue my left hand, my right hand got caught in the pulley causing loss of my right index finger'' and ''that I was taken to the hospital, treated and discharged''. See paragraphs 5 & 6 of the Claimant's witness statement on oath dated 17/2/15. The entire evidence in chief of the Claimant including all the exhibits tendered and his evidence under cross examination have been included in this Judgment. I find no nexus between the injury sustained by Claimant and the Defendant. Claimant did not provide any link in whatever form or manner. Was the Defendant responsible for injury sustained by the Claimant while working for it? How did the Defendant come to be responsible for same? I have no answers to these questions. Yes, and of a truth, the Defendant owes to the Claimant a duty of care as an employer of labour. Did the Defendant breach that duty of care? Is the case of the Claimant one founded on Negligence? I note that the word Negligence was not used at all by the Claimant in either his pleadings and evidence in chief. On pages 4 & 5 of her final written address, learned Counsel to the Claimant made submissions on negligence on the part of the Defendant. Let me state first and foremost that the law remains settled that the address of Counsel, no matter how beautifully and brilliantly written cannot be a substitute for the evidence led by the parties. See Buhari v. Obasanjo (2005)13 NWLR 286-287& Taiwo & Anor. v. Osunlabu (2017) LPELR(CA). Thus that submission cannot replace facts and hard evidence led by the Claimant. Even if the case of the Claimant is one founded on Negligence, has the Claimant discharged the burden of proof placed on him to succeed? What then is negligence? What does a Claimant need to prove in order to succeed for an award of damages in negligence? In Kabo Air Limited v. Mohammed (2014) LPELR-23614(CA), Abiru JCA took time out to espouse on what is meant by negligence in the following words - '' ... Now, negligence is the omission to do something, which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. It means lack of proper care and attention; careless behavior or conduct; a state of mind which is opposed to intention and the breach of a duty of care imposed by common law and statute resulting in damage to the complainant. Negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is also any conduct that falls below the legal standard established to protect others against unreasonable risk of harm - Universal Trust Bank of Nigeria Plc v. Ozoemena (2007) 3 NWLR (Pt. 1022) 448, Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 and Diamond Bank Plc v. Partnership Investment Co Ltd (2009) 18 NWLR (Pt. 1172) 67." Negligence is said to be a fluid principle, which has to be applied to the most diverse conditions and problems of human life. See Ojo v. Ghahoro & ors (2006) LPELR-2383 per Ogbuagu JSC. Negligence is a question of fact not law. Therefore each case must be decided in the light of its own facts and circumstances. The facts of a case bordering on negligence must be proved by the person who asserts same. This is in tandem with the age-long established principle of law that he who asserts must prove the assertion. See Okorie v. Unakalamba (2013) LPELR-22508 (CA).Therefore failure to prove particulars of negligence pleaded is fatal to the plaintiffs case Alhaji Otaru and Sons Ltd vs Idris (1999) 6 NWLR (Pt 606) 330. In a case of this nature, that is a case allegedly founded on negligence, in order for a Claimant to succeed, this Claimant must prove the following -(a) that the defendant owed a duty of care to the Claimant; (b) that the duty of care was breached and (c) that the plaintiff suffered damages arising from such breach. See SPDC Nigeria Limited v. Ikontia & Ors. (2010) LPELR-4910 (CA). It is imperative to bear in mind that a mere occurrence of an accident is not a proof of negligence. Negligence is also not proved simply because a party sustains an injury in the course of his employment. Thus, where there is duty of care and that duty is breached without an injury sustained there will be no award of damages. Secondly, where there is no duty of care but a party sustains an injury, no damages will lie for negligence. Thirdly, where there is no duty of care and accident occurs leading to injury the Court will not intervene to award damages. The point has earlier been made that negligence is a question of fact to be proved. The proof required is by cogent, credible and admissible evidence. A party seeking damages in negligence must prove the 3 identified elements of negligence. He must prove the existence of a duty of care. He must prove the breach of that duty of care. He must also prove the damage resulting from the breach of the duty of care owed. The circumstances leading to the accident, the nature and extent of the accident must be pleaded and cogent evidence adduced in support. It is then that the Court will be able to determine whether partially or wholly, either the Claimant or the Defendant, caused the accident. See Abubakar & Anor. v. Joseph (2008) LPELR-48 (SC). I have taken time in setting out the law on negligence so as to prepare ground for the next enquiry which is whether the Claimant in this case has discharged the burden of proof on him to be entitled to a positive disposition by this Court. Does the Defendant owe the Claimant any duty of care? The fact that the Claimant was an employee of the Defendant was not disputed by either side. It is also not challenged the fact that the Claimant sustained the injury in this case in the course of the discharge of his duties as an employee of the Defendant. These unchallenged facts go to establish the simple fact of existence of employer/employee relationship between the parties, at least prior to the occurrence of the accident leading to the institution of this case. The existence of employment relationship, even at Common Law, imposes a duty of care on the employer respecting his employees. The Court of Appeal in Kabo Air Limited v. Mohammed (2014)LPELR-23614(CA) reiterated the position thus - "...it is settled law that it is the duty of an employer, acting personally or through his servants or agents, to take reasonable care for the safety of his workmen and other employees in the course of their employment. This duty extends in particular to the safety of the place of work, the plant and machinery and the method and conduct of work''. The Court, while noting that the duty of care of an employer to the employee is not restricted to the matters stated, further approved the Judgment of Lord Wright in Wilsons and Clyde Coal Co. Ltd v. English (1938) AC 57 at 84 that - "The whole course of authority consistently recognizes a duty which rests on the employer, and which is personal to the employer, to take reasonable care of the safety of his workmen, whether the employer be an individual, a firm or a company, and whether or not the employer takes any share in the conduct of the operations." It suffices from the pleadings of the parties and the unchallenged evidence led to hold that the Defendant as the employer of the Claimant owed the Claimant a duty of care. Has the Claimant proved the second element of negligence which is that the duty of care owed was breached? It is not sufficient that there exists a duty of care owed by the Defendant to the Claimant to be entitled to award of damages. The Claimant is under an obligation to prove that the Defendant breached that duty of care. The mere occurrence of an accident is not enough to make a claim for damages. The accident must be linked to the fault or failings of the Defendant. See Avon Crown Caps & Containers Nig. Limited v. Bamigboye (2005)17 NWLR (Pt. 954) 275. The summary of the case of the Claimant is that while working on a machine, ''the belt pulley of the machine caught my left hand; and as I tried to use my right hand to rescue my left hand, my right hand got caught in the pulley causing loss of my right index finger''. Claimant did not allege that the machine in question malfunctioned or that he had complained of its faulty nature to the Defendant. Claimant did not allege a breach of duty of care by the Defendant and neither did he allege that such a breach of duty of care resulted in the injury he sustained. What then is connection between the injury sustained by the Claimant to make the Defendant liable in payment of the sum of =N=10,000,000.00? I see none. There is indeed none. In the circumstances of this case, the Claimant has failed to successfully discharge the burden of proof on him to be entitled to the relief sought. Not having been proved, I have no hesitation in dismissing this case. I so do. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge