Download PDF
JUDGMENT By a Complaint filed in this court on 23rd April 2014, the Claimant sought the following reliefs from this court against the Defendant: 1. The sum of N176,748.00 (One Hundred and Seventy-Six Thousand, Seven Hundred and Forty-Eight Naira Only) per annum being monthly salary of the Claimant at the rate of N14,729.00 (Fourteen Thousand Seven Hundred and Twenty-Nine Naira only) per month from May 2012, till judgment is entered/delivered in this suit. 2. An Order of this honourable court re-instating the Claimant in the employment of the Defendant, the Defendant having unlawfully/unduly terminated the Claimant's employment. 3. An Order of this honourable court compelling the Defendant to pay the Claimant the sum of N235,000.00 (Two Hundred and Thirty-Five Thousand Naira) as specific damage, the said amount being money spent by the Claimant for further medical treatments when the Defendant abandoned him. 4. An Order of this honourable court awarding the sum of N50,000,000.00 (Fifty Million Naira) only against the Defendant being special and general damages against the Defendants jointly and severally for breach of contract of employment despite performance by the Claimant of his own side of the said contract and for injuries sustained by the Claimant as a result of the factory accident wherein acid spillage entered and damaged the eyes of the Claimant due to the negligence of the Defendant that failed to provide the Claimant with protective and/or industrial safety eye glasses while working with the Defendant. Pleadings were duly exchanged, and hearing commenced on the 15th day of February 2016. Parties called one witness each. The Claimant testified for himself as CW1. One Daniel Denja, a workshop manager, testified for the Defendant as DW1. Hearing ended on 7th June 2017. Parties were then ordered to file their final written addresses which were subsequently filed and regularized on 4th July 2018. Parties adopted their respective final addresses on 2nd October 2018. CLAIMANT’S CASE The case of the Claimant, as pleaded in his statement of facts and contained in the evidence he adduced before this court is that he was employed by the Defendant as auto electrician in the fleet maintenance department of the Defendant company in a letter of employment dated 25th May 2009 which also contains the conditions of his employment. The Claimant worked for the Defendant until April 2012 when he was given a letter of termination of his employment. During his employment, sometime in February 2011, a factory accident occurred whereby a car battery exploded and spilled acid into his eyes. The Defendant did not provide him with personal protective equipment or industrial eye glass. Following the accident, he was taken to the Federal Medical Centre (FMC) Owerri and put on admission. He was treated and later discharged from the hospital, but he was put on regular medical check up pending when he will recover his sight. The Hospital also recommended an eye glass for him. After his discharge from hospital, he could not go for medical check-up because the Defendant seized his small patient’s card. As a result, he developed serious eye problem. He went back to the FMC Owerri, but he could not be treated as he didn’t have his patient’s card. The hospital however prescribed drugs for him on 23rd July 2012. When his sight was deteriorating, he went again to the FMC Owerri on 14th May 2013. The hospital agreed to give him a medical report but refused to treat him in the absence of his patient’s card. The Claimant, on his own, sought medical treatment at Victorian Eye Clinic and Optical Services Centre Aba where he was treated between 16th May 2013 and 15th November 2013. He was also given recommended eye glasses. He spent the sum of N255,700.00 in the treatment he received in these clinics. By a letter dated 24th April 2012, the Defendant terminated the Claimant’s employment with effect from 30th April 2012. Until the termination of his employment, his monthly salary was N14,729.00 amounting to N176,748.00 per annum. He was also entitled to these allowances: N66,000 housing allowance per annum; 12% of his annual basic salary as leave allowance; N13,257 per annum as family medical allowance; N72,000 per annum as transport allowance; N13,257 per annum as education allowance and N8,643 per annum as furniture allowance. Since April 2012 when his employment was terminated, he has not been paid his basic salary or these entitlements. During his employment, he was contributing to the Defendant’s pension fund scheme with IEI Anchor Pensions. The Defendant has refused to issue him the necessary documents and forms that would enable him access his pension. He is entitled to the sum of N100,000 from the pension scheme. During his testimony, the Claimant tendered in evidence a number of documents which were admitted in evidence and marked Exhibits C1 to C8. DEFENDANT’S CASE The Defendant, in defending the claims of the Claimant, filed a statement of defence and also called evidence. DW1 is one Daniel Danja, the workshop Manager of the Defendant. The case of the Defendant is that the Claimant was an employee of the defendant who, in February 2011, sustained injuries to his eyes as a result of work place accident. It was not an acid spillage. The Claimant did not put on his personal protective gears, issued to him by the Defendant, on the day of the accident. Upon the occurrence of the accident, the Claimant was rushed to FMC Owerri by staff of the Defendant where he was admitted and treated. The Defendant paid for the Claimant’s medical needs and requirements. The Defendant also procured drugs from private pharmacies for the Claimant. Staffs of the Defendant were also available and ready to take care of the Claimant’s medical expenses. The Claimant has always been in possession of his personal patient’s card. It was never seized from him by the branch manager. After the Claimant’s treatment in the FMC, he was discharged by the doctors in good condition. The Claimant resumed his duties in the Defendant’s plant and worked there until his employment was terminated. The Claimant’s appointment was terminated both for poor performance and administrative considerations. In the Claimant’s condition of service, no reason need be given for determining the employment. The Defendant paid the Claimant 1 month’s salary in lieu of notice less the sums the Claimant owes to the Defendant. Since the Claimant’s discharge from FMC, the Defendant never received any complaint from him with regards to his eyes but after the termination of his employment, the Claimant has employed all means to get money off the Defendant. The ploys include letter from the Claimant’s solicitors and the receipts obtained from Victorian Eye Clinic and Optical Services Centre. In 2012, the Claimant received the sum of N86,400 as house rent advance. This sum was deducted from the Claimant’s account monthly until the termination of his employment. The balance of the debt was more than the Claimant’s 1 month’s salary in lieu of notice, hence the Defendant withheld the 1 month’s salary it ought to pay to the Claimant. The Claimant’s pension account with IEI Anchor Pension is the Claimant’s personal account. The Defendant has no business with the running of the account nor can it stop the Claimant from accessing it. DW1 also tendered some documents in evidence. They were marked Exhibits D1 to D4. After the close of evidence in the matter, counsels for the parties filed final written addresses which were adopted on 2nd October 2018. DEFENDANT’S SUBMISSIONS In the final written address of the defendant, its counsel, Augustine Eseagwu Esq., submitted a sole issue for determination in the suit. The issue is this: Whether on the strength of pleadings and materials placed before this Honourable Court and in consideration of all the surrounding facts and circumstances, the Claimant has proven on the preponderance of evidence, that he is entitled to all or any of the reliefs claimed in the instant Suit. Arguing this issue, learned counsel for the Defendant submitted that the thrust of his submission is predicated on the position that the Claimant is not entitled to any of the reliefs claimed against the Defendant as the Claimant has failed to place any relevant and material evidence before this Court to justify the grant of these reliefs. It was argued by Counsel that it is a settled principle of law that a Claimant in a civil case will only succeed when he establishes his claims on the preponderance of credible evidence adduced, an argument captured by the aphorism that “he who asserts must prove”, and codified in Sections 131(1) and 133(1) of the Evidence Act, Cap E14, 2011. The case of S.C.C. (NIG.) LTD. vs. ELEMADU (2005) 7 NWLR (Pt.923) 28 at 63 paragraphs B-C, was relied on by Counsel where the Court of Appeal held that a cardinal principle of law is that civil actions are determined on preponderance of evidence and balance of probability, and once a party asserts, he must prove his assertion, otherwise, judgment will not be given in his favour. Similarly, counsel submitted that a Claimant would only succeed on the strength of its case and not on the weakness of the Defence relying on the position in UKAEGBU vs. NWOKOLO (2009) 3 NWLR (Pt.1127) 194 at 230 paragraphs A-D. On the nature of termination of employment by an employer or employee, counsel submitted the English case of RIORDAN vs. THE WAR OFFICE (1959) 3 All ER 552 at 557 to 558, paragraphs H-A, restated the position of the law in this regard as follows: “I think that the regulations relating to the termination of employment must be regarded if not as the terms of a contract of employment at least as analogous to the terms of such a contract and that the giving of a notice terminating the employment, whether by employee or employer, is the exercise of the right under the contract to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and, like a notice to quit a tenancy, once given it cannot in my view be withdrawn save by mutual consent”. The attention of the court was drawn to the case of UDO vs. C.S.N.C. (2001) 14 NWLR (Pt.732) 129, where it was held that the terms of contract of service form the bedrock of any case where the issue of wrongful termination of employment is in issue, and an employee who complains that his employment has been wrongfully terminated bears the burden of placing before the court the terms and conditions of his contract of employment, and proving the manner in which the terms and conditions of his employment were breached by the employer. Again, counsel submitted that from the last paragraph of page 1, Exhibit C1 which is the Claimant’s letter of employment; it is evident that the parties did not intend that the employment required any explanation for a termination. Counsel then urged the Court to hold that the termination of the Claimant’s employment cannot be considered as unlawful, and the Claimant has failed to prove that he is entitled to relief one fails, in view of the decisions in AIKI vs. IDOWU (2006) 9 NWLR (Pt. 984) 47 at 65 paragraphs A-B, and EFUWAPE vs. UNITED BANK FOR AFRICA PLC (2006) 10 CLRN 33. According to Counsel, the third and fourth reliefs in the Statement of Claim are the crux of the extant case, for which the Claimant argued that the Defendant was responsible for the accident and the injury that happened to him that emanated from that said accident, but the Claimant failed to tell the court the particular circumstances in which the accident occurred, leading to speculation by the Claimant. Furthermore, Counsel submitted that negligence was defined in the case of FIJABI ADEBO HOLDINGS LTD & ANOR. vs. NBC PLC. & ANOR. (2017) 2 CLRN 185, to be “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. The three basic components of the tort of negligence are: Duty of care; Breach of the duty of care; and Damage caused by the breach. See also the case of DIAMOND BANK LTD vs. PARTNERSHIP INVESTMENT CO LTD & ANOR (2009) 5 NWLR (Pt. 1172) 67, where Chukwuma - Eneh JSC had this to say: "On the same question "What is negligence? In Black's Law Dictionary 8th Edition at Pages 1062 to 1063 --------At 1061 thereof, negligence is generally defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation any conduct that falls below the legal standard established to protect others against unreasonable risk of harm except for conduct that it or willfully disregardful of others. " Further, counsel submitted that undoubtedly the Claimant is alleging that the Defendant breached a duty of care to him hence the recourse to a relief seeking damages in Paragraphs 3 and 4 of the reliefs contained in the Statement of Claim. Counsel proceeded to set out each requirement for a case of negligence; as enunciated in M. O. KANU SONS & COMPANY LTD vs. FBN PLC (2006) 5 S.C. (Pt. 111) 80, which was cited with approval by the Court in the case of HERITAGE BANK & ORS vs. OKORIE (2017) LPELR-42010, as follows had this to say on liability for negligence: "The authors of Clerk and Lindsel on Torts 14th Edition stated the requirements of the torts of negligence as follows "the tort is traditionally described as damage which is not too remote caused by a breach of a duty of care owed by the Defendant to the Plaintiff. This formula yields six ingredients of liability: 1. A duty of care situation, i.e recognition by law that the careless infliction of the kind of damage is suit on the type of person to which the plaintiff belongs by the type of person to which the defendant belongs is actionable. 2. Foreseeability that the defendants' conduct would have inflicted on the plaintiff the kind of damage is suit. This is what is implied in the statement that the duty of care has to be "owed" to the plaintiff. 3. Proof that the defendants' conduct was careless i.e that it failed to measure up to the standard and scope set by law, breach of duty. 4. There must be a causal connection between the defendants' carelessness and the damages. As long as these four requirements are satisfied, the defendant is liable in negligence only then do the remaining considerations arise, namely: 5. The extent of the damage attributable to the defendant and, 6. The monetary estimate of that extent of damages. From the foregoing, Counsel submitted that the Defendant is not guilty of negligent conduct towards the Claimant by abandoning the Claimant, that the Defendant provided the Claimant with protective and/or industrial safety eye glasses while working and is not liable for the acid spillage that entered and damaged the eyes of the Claimant as a result of the factory accident. Counsel also submitted that the Claimant asserted in paragraph 9 of his Deposition on Oath that he suffered an acid spillage accident and that the Defendant was liable for damages because he was not provided protective and industrial safety eye glasses while working. According to Counsel, this was denied by the Defendant specifically in paragraph 4 of its Statement of Oath and the Claimant was put to the strictest proof of that averment. Counsel submitted that all through the evidence of the Claimant, he never gave any evidence of what the acid spillage was, and how it got to his eyes, but rather maintained that it happened and he was not wearing any protective clothing which the Defendant failed to issue to him, all of which was countered by the Defendant in its evidence and under cross examination. It was the argument of Counsel that a cursory look through the Claimant's case would seem to show that the Claimant cannot seem to understand where his claim to a relief of damages for breach of duty of care against the Defendant comes from; that is, whether it stems from the accident happening to him in the first place or because the Defendant didn't issue him protective clothing. Relying on the cases of SPDC vs. OTELEMABA MAXON & ORS (2001) FWLR (Pt. 47) 1030 at 1051, and JULIUS BERGER (NIG.) PLC vs. OMOGUI (2001) FWLR (Pt. 64) 305 at 317. Counsel submitted that the Claimant has failed to prove his case as to what duty of care was owed to him by the Defendant. Counsel also made reference to the case of UTB NIG. LTD vs. OZOEMENA (2007) 1 SC (Pt. II) 211 at 228-229, where the Supreme Court held that the fundamental element of the tort of negligence, which is the breach of the duty of care, had to be proved, otherwise the claim had to fail; and that there had to be some proof connecting the Defendant with any act or omission complained of; and that the claim was dismissed for the absence of the said direct causal link/proof. Counsel submitted that the Court would be faced with a question: “was the accident which caused injury to the Claimant as a result of his own carelessness or as a result of non-issue of protective clothing?”, and in determining this question, as to when the cause of action arose, the only reasonable inference that can be drawn is that the Claimant deliberately refused to give evidence as to what caused the accident but is merely looking to hold the Defendant responsible for what happened after the accident had occurred to his disadvantage. See JOSEPH vs. ALHAJI ABUBAKAR & ANOR (2002) FWLR (Pt. 91) 1539 and UBN PLC vs. EMOLE (2002) FWLR (Pt. 88) 845 at 846. According to counsel, a party claiming negligence must clearly state what each party was alleged to have attempted to do, done or not done, describing clearly what led to the accident, and that a plaintiff who cannot prove all particulars of negligence pleaded by him should have his claim dismissed instead of an award of general damages. Furthermore, it was argued that the duty of care owed to the Claimant was met when the Defendant issued the Claimant protective clothing at employment, and when the Defendant immediately rushed him to the Federal Medical Center, Owerri for treatment after the accident, and Exhibits D1, D2, D3 and D4 all attest to the fact that the Defendant spared no amount to get him treated; and the claim that the Claimant’s out-patient's card was seized was denied and countered in the Defendant's evidence-in-chief and under cross-examination by the Claimant's counsel. More so, the Claimant had not tendered any document in evidence to show the specific nature of the injury he claims damages for, except Exhibit C3 which at best could be described as the expert opinion of the consultant ophthalmologist who attended to the Claimant at the Federal Medical Center, Owerri and produced the said report on the 14th of May, 2013 more than 3 years after the alleged injury or cause of action arose, and the Claimant failed to call a consultant to give evidence on the said injury and also to present that said evidence for cross examination, this failure is fatal to the case of the Claimant, per WAMBAI vs. KANO NATIVE AUTHORITY (1965) NMLR 15, cited with approval in SOWEMIMO vs. THE STATE (2004) LPELR-3108 (SC). Counsel relied on the case of OKEREKE vs. UMAHI & ORS (2016) LPELR-40035 (SC) where an expert was considered to be a person who is specially skilled in the field he is giving evidence, whose opinion must be supported by scientific analysis otherwise his evidence would be worthless. See also SPDC LTD vs. FARAH AND ORS (1995) 3 NWLR (Pt. 382) 148; SPDC vs. OTOKO (1990) 6 NWLR (Pt. 159) 693; OGIALE vs. SPDC NIG LTD (1997) 3 NWLR (Pt. 480) 165. The court was urged to disregard Exhibit C3 and no weight should be ascribed to it. Again, Counsel’s submission was that there is nothing to show why the Claimants made the payments in Exhibits C7 (A - E), because he did not lead or tender evidence that the ocular condition worsened, or call evidence of any other condition or ailment. Counsel urged this court to hold that the said Exhibits C7 (A - E) are of no consequence and therefore are of no evidential weight, and to find that reliefs three and four should fail as the Claimant has failed to prove his case. Regarding the Claimant's Relief One, Counsel argued that for the Claimant failed to prove his reliefs 1, 3 and 4 which are in nature of special damages, and such is fatal to his claim and gives rise to a refusal of the said reliefs by this Court. See A.T.E. CO. LTD. vs. MILITARY GOVERNOR OF OGUN STATE (2009) 15 NWLR (Pt.1163) 26 at 51-52, and 7UP BOTTLING COMPANY PLC vs. AUGUSTUS (2012) LPELR- 20873(CA) 35. It is the view of Counsel that where reliefs 2 and 4 fail, reliefs 1 and 3 should fail also, because these reliefs represent consequential reliefs sought by the Claimant in this suit and the reliefs clearly derive their legitimacy and are fully dependent on the success of Reliefs 2 and 4, the main reliefs in this Suit. See AWONIYI vs. REGD TRUSTEES OF AMORC (2000) 10 NWLR (Pt.676) 522 at 539. Also, it was argued by Counsel that the Claimant, whose employment was terminated, cannot be entitled to the sum equal to his monthly salary from May 2012 till judgment is delivered. The Court was urged to discountenance any sentiment and consider only facts, and conclude that the Claimant's case lacks merit, in line with ADIGUN vs. AYINDE (1993) 8 NWLR (Pt.313) 516 at 528, F-G. Concluding, counsel submitted that this entire case is riddled with contradictions and inconsistencies, with the reliefs based on monies not pleaded and proved. The Court was urged to dismiss this action with cost. CLAIMANT’S SUBMISSIONS In the Claimant’s final written address filed on 12th April 2018 his counsel, I. Onyebuenyi Esq., adopted the sole issue raised by the Defendant’s counsel as the issue for determination in the suit. The issue is whether on the strength of pleadings and materials placed before this Honourable court and in consideration of all the surrounding facts and circumstances, the Claimant has proven on the preponderance of evidence that he is entitled to all or any of the reliefs contained in the suit. The submissions of learned counsel for the claimant on the issue is that the Claimant has in totality proved his claims on the preponderance of evidence and is entitled to judgment in his favour. This contention is predicated on the fact that the Claimant filed his pleadings, deposed to facts in his statement on oath, which were neither discredited in the course of cross examination nor denied by the Defendant in its pleadings; on the principle of law that when a piece of evidence is unchallenged or not contradicted by the opposing party who had the opportunity to controvert the evidence, the trial court has no alternative but to believe the evidence, per MOBIL PRODUCING (NIG.) UNLTD &. ANOR vs. UDO (2005) 36 WRN 53. Similarly, counsel urged the court to consider paragraphs 3, 4, 6, 7, 8, 9, 10, 11, and 12 of the Defendant’s statement of defence, and written deposition, where the averments in the Claimant’s pleadings and statement on oath was not challenged, and contended, that it is settled law that where a party to a civil proceeding fails or neglects to traverse an averment in the pleadings of the opposing party, he is deemed to have admitted the averments in the pleadings. See MALIKI vs. MICHAEL IMODU INSTITUTE FOR LABOUR STUDIES (2009) 21 WRN 35 at 41. Again, counsel argued that the evidence-in-chief of DW1 amounts to hearsay which by the provisions of the Evidence Act is inadmissible, in view of the fact that he admitted during cross examination on the 8/5/2017 that all he knew in the matter was what one Mr. Tunji, (the branch manager of the Defendant at Owerri) told him, undoubtedly this piece of evidence attest to the fact that the evidence of the said witness (DW1) is a mere hearsay. Counsel urged the court to hold that the Claimant proved his claim on the preponderance of evidence led to the establishment of the fact that the Claimant suffered injury to his eyes while in the discharge of his duties to the Defendant as a result of the negligence of the Defendant, notwithstanding the Defendant counsel’s submission that the Claimant has failed to place any relevant and material evidence before this Court to justify his reliefs, because the evidence adduced by the Claimant outweighs that of the Defendant. Also, counsel submitted that the failure of the Defendant to terminate the employment of the Claimant at the expiration of the six months probationary period shall be construed to have employed the Claimant, and the fact that the Defendant can terminate without any reason does not imply that the Claimant should be dismissed without recourse to his health situation arising from the industrial accident suffered in the course of the employment of the Defendant and in the due discharge of his services to the Defendant. It was contended by counsel that the Defendant was negligent and that the Claimant is entitled to compensation and damages for the physical injury, pain, anxiety for the future and embarrassment. On the issue of breach of duty of care, it was argued by counsel that the failure of the Defendant to give the Claimant the required adequate protective safety/industrial apparatus and measure is a breach of the duty of care owed to the Claimant by the Defendant and that most of the cases cited by the Defendant are all supportive of the case of the Claimant rather than that of the Defendant, and the issues of negligence was duly established and proven by the Claimant who even under cross examination clearly testified to the fact that he sustained the injury when the battery exploded in the vehicle he was repairing and that he was carrying out the said repair of the vehicle inside the Defendant's Owerri Office (company) and on the instruction of one Mr. Tunji, who was the then Owerri branch manager of the Defendant. In the same vein, counsel submitted that the case of the Claimant was admitted by the Defendant in paragraph 17 of the written deposition of the Defendant’s witness; and the Defendant should be held liable for the injury of the Claimant considering the inability or failure to provide safety apparatus to the Claimant. Furthermore, it was counsel’s submission that the question of negligence is a matter of fact, and from the facts adduced by the Claimant that was not challenged; the Defendant was negligent, particularly in view of the reasoning that negligence is the omission to do something which a reasonable man would do. Likewise, counsel argued that the Claimant has discharged the burden of proof fixed on him from the evidence led in this case, and is entitled to damages and the reliefs sought in this case. Regarding the Claimant’s Exhibits C3 and C7 (A - E), counsel contended that Exhibit C3 is a medical report issued to the Claimant personally at the FMC Owerri, while and Exhibits C7 (a-e) are receipts of payment personally issued to the Claimants by the Victorian Eye Clinic and Optical Services where he went for further medical treatments proving the claimant paid for further treatments, with both being documents personally issued to the claimant; it is not necessary in law for the issuing authority to testify. It was Counsel’s opinion that it is erroneous for the Defendant to submit that the Claimant did not provide any other document to show the nature of the Claimant’s injury, in the light of the fact that the Claimant’s pleadings, written deposition and oral evidence were specific to state that acid spilled into his eyes and caused him injury, a fact having being admitted by the Defendant require no further proof. Also, counsel argued that the failure to present a doctor to testify is not fatal to the case of the Claimant; and with the evidence of the Claimant to the fact that the Defendant seized his patient medical card not controverted, reliefs three and four of the Claimant should be granted as the authorities cited by the Defendant is inapplicable to circumstances of this instant case. Further, counsel submitted that it is erroneous and misleading for the Defendant to submit that the specific damages were not pleaded, because the Claimant pleaded facts pertaining to the special damages claimed, and the failure of the Defendant to challenge these facts under cross examination is an admission. It was contended by counsel that damages flows from the wrong doing of the Defendant hence the maxim ubi jus ubi remedium, and with the Claimant’s injury to his eye arising as a result of the negligence of the Defendant, the Claimant is entitled to his reliefs; because the standard of proof required in establishing the amount of damages claimed in a case where the evidence is unchallenged is that it is discharged upon a minimum proof, per ELF (NIG) LTD vs. SILEO (1994) 6 NWLR (Pt. 350) at 258. In like manner, counsel submitted that the Claimant on preponderance of evidence has credibly shown and proven that he is entitled to his contribution to the pension fund. Counsel concluded by contending that the Claimant is entitled to all the prayers or relief sought in this suit having proved on preponderance of evidence his case and to discountenance any submission of the defence counsel to the contrary. COURT’S DECISION In view of the facts and evidence presented before the court, and the submissions of counsels in the final written addresses, this court too will adopt the issue submitted by the parties’ counsels as the issue to be determined in this case. The Claimant’s first relief is a claim for the sum of N176,748.00, which is the amount of the Claimant’s yearly salary, from May 2012 till the time judgment is delivered in this suit. By this claim, the Claimant is claiming his salaries and allowances from May 2012 until the date of judgment in this suit. In paragraph 18 of the statement of facts, the Claimant pleaded that his employment was terminated effective from 30th April 2012 vide a termination letter dated 24th April 2012. This letter is in evidence as Exhibit C2. By the facts pleaded by the Claimant and the evidence adduced by him, the Claimant’s employment with the Defendant was terminated on 30/4/2012. The Defendant’s case too is that the Claimant’s employment had been terminated by the Defendant. Obviously, the Claimant’s instant claim is a claim for salaries for the period he was no longer in the Defendant’s employment. The Claimant’s claim for salaries for the period after the employment had been terminated is tantamount to saying that the employment subsisted till the date of this judgment. I have examined the nature of the Claimant’s employment with the Defendant and I find, from the pleadings of the Claimant in paragraphs 1, 2 and 4 of the statement of facts and the terms of his employment contained in the employment letter admitted in evidence as Exhibit C1, that the Claimant’s employment was one of master and servant. In master and servant employment, as in this case, once any of the parties have exercised his right under the contract to terminate the employment, the employment stands terminated, and the servant cannot ask to be paid nor can he be paid salaries or allowances for the period he was no longer in the employment. It was held in SPRING BANK vs. BABATUNDE (2012) All FWLR (Pt. 609) 1191 at 1205 that a servant whose employment has been terminated, whether wrongfully or otherwise, cannot claim for salary or allowances for period he was no longer in the employment. See also OBOT vs. CBN (1993) 1. The Claimant has shown in this case that he was not in the Defendant’s employment between May 2012 and to date. Therefore, he cannot be granted the claim where he sought to be paid salaries for the period he has been disengaged from the Defendant’s employment. Similar to this claim is the Claimant’s relief 2. The Claimant sought an order of this court re-instating him to the Defendant’s employment. I have observed earlier that the Claimant’s employment is that of master and servant. In such an employment, an employee whose employment has been terminated, whether wrongfully or otherwise, cannot be re-instated. The order for re-instatement of an employee is only available to an employee whose employment is protected by statute but unlawfully terminated from the employment. See ESIEVWORE vs. NEPA (2002) FWLR (Pt. 124) 398 at 408; UZONDU vs. U.B.N PLC (2008) All FWLR (Pt. 443) 1389; BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. vs. NAPOLEON ESEALUKA (2015) 2 NWLR (Pt. 1440) 411 at 437. Therefore, the claim for reinstatement sought by the Claimant has no merit. In the final written address of the counsels for the parties, they made lengthy arguments about the wrongfulness of the termination of the Claimant’s employment or the failure of the Claimant to prove wrongfulness of his termination from the Defendant’s employment. Let me mention it that the Claimant never made any case for wrongful termination of his employment nor did he seek any relief or declaration for wrongful termination of his employment. Since the Claimant has not called this court to inquire into the circumstance of the termination of his employment or seek any relief in that respect from this court, I will not engage in the futile exercise of considering whether the termination of his employment was wrongful or not. In view of the foregoing, reliefs 1 and 2 sought by the Claimant ought to be dismissed. In his evidence, the Claimant stated that while in the Defendant’s employment in February 2011, he was working on a car in the Defendant’s factory when the car battery exploded and spilled acid into his eyes. He was taken to the Federal Medical Centre (FMC) Owerri where he was admitted and treated. He was later discharged from the hospital but with instruction to return for check up. He was however not able to go for the check up or further medical treatment in the FMC because the Defendant seized his patient’s card. He later sought medical attention on his own cost at Victorian Eye Clinic and Optical Services Centre, Aba where he was treated between 16th May 2013 and 15th November 2013. He was also given a recommended eye glasses. He spent the total sum of N255,700.00 in the treatment he received in these clinics. The Claimant consequently sought an order compelling the Defendant to pay him specific damages in the sum of N235, 000.00 which he spent on further medical treatments. In defence of this claim, the Defendant admitted that the Claimant sustained injuries to his eyes from an accident that happened in his place of work. The Defendant stated however that staff of the Defendant rushed the Claimant to FMC Owerri where he was admitted and treated. The Defendant paid for the Claimant’s medical treatment and drugs. The Defendant also averred that after the Claimant’s discharge from FMC, he never complained to the Defendant about his eyes until after the termination of his employment when the Claimant started acting to get money off the Defendant. The Defendant also stated that the Claimant’s personal patient’s card was never seized from him by the branch manager and that the receipts he obtained from Victorian Eye clinic and Optical services centre were afterthought intended to fleece the Defendant. Let me first state that the sum pleaded by the Claimant as what he spent is in his further medical treatment is the sum of N255,700.00. However, he claims the sum of N235, 000 as what he spent on further medical treatments. There is no evidence from the Claimant to explain why he claims N235,000.00, an amount less than the sum he claims he spent on further medical treatments. In support of the claim however, the Claimant tendered receipts of the medical treatment in evidence. These are Exhibits C7 (a) to C7 (e). The total sum contained in these Exhibits is the sum of N255,700.00. There is not dispute on the fact that the Claimant sustained injury in his eyes when he was working for the Defendant. The Defendant even made it known that it took responsibility for the Claimant’s treatment when the accident occurred by paying his hospital medical bills. Exhibits D1, D2, D3 and D4 tendered by the Defendant are evidence of the sums paid for the Claimant’s medical treatment. The instant claim of the Claimant is for expenses he incurred in the treatment of the eye injury after he had been exited from the employment. Since the injury was sustained during the employment, the Defendant is expected to shoulder the treatment of the Defendant until he is fully recovered. It does not matter that the Claimant was no longer in the Defendant’s employment as at the time he incurred the expenses he sought to recover from the Defendant. The Claimant ought not to be left to bear the burden of treating the injury he sustained while working for the Defendant, particularly in view of the fact that the Claimant’s means of sustenance has been taken away by the Defendant when it terminated the Claimant’s employment. The Defendant has even not disproved the fact that the Claimant was treated in Victorian Eye Clinic and Optical Services Centre, Aba and incurred the said expenses contained in Exhibits C7 (a) to C7 (e). Since the sum was expended in the treatment of the same eye injury he sustained while performing his duties for the Defendant, the Defendant ought to be made to defray the expenses. From his testimony and exhibits tendered, the Claimant has proved that he spent the sum of N255,700.00 in his further treatment. I have mentioned earlier that the sum claimed by the Claimant in relief 3 is the sum of N235,000.00 which is less than the sum he testified to have spent. The Claimant is deemed to have abandoned the excess above the sum he claims in this suit. I hold that the Claimant is entitled to be paid the sum of N235,000.00 he claims as cost of his further treatment. In relief 4, the Claimant sought the sum of N50,000,000.00 as special and general damages against the Defendant for injuries sustained by the Claimant as a result of the factory accident wherein acid spillage entered and damaged the eyes of the Claimant due to the negligence of the Defendant that failed to provide the Claimant with protective and/or industrial safety eye glasses while working with the Defendant. In his evidence, the Claimant stated that the battery acid spilled into his eyes when the factory accident occurred because the Defendant did not provide him with personal protective equipment or industrial eye glass. Under cross examination, the Claimant said he was not wearing any protective gear that was why the battery acid affected his eyes. It was on the basis of these facts he attributed negligence on the part of the Defendant and claims for damages for the injuries he sustained in his eyes while carrying out his duties for the Defendant. On its part, the Defendant averred that the Claimant sustained injuries to his eyes as a result of work place accident because on the day of the accident, the Claimant did not put on his personal protective gears issued to him by the Defendant. Under cross examination, DW1 stated that the Claimant was provided safety kits, which include safety boots, cover-all, eye glasses and hand gloves, and he was wearing them when the accident happened. DW1 also stated that if the Claimant was not wearing the protective gears, he would not have been allowed into the plant on that day. The Defendant has alleged that the Claimant was wearing the protective gears on the day of the accident. DW1 also said the protective gears include eye goggles. But the Claimant said he was not wearing any such gear that was why the acid from the burst battery got to his eyes. According to DW1, eye goggles is one the safety gears the Claimant wore on the day of the accident. If the Claimant was putting on the eye goggle on the day of the accident, as alleged by the Defendant, how did the acid get into his eyes? The only explanation will be that the Claimant was not wearing eye goggles on the day of the accident. The Claimant’s assertion that he was not putting on eye goggle on the day of the accident is more plausible to explain how the acid entered into his eyes. Having found that the Claimant was not wearing the eye goggle on the day of the accident, the question at this point is whether the Defendant provided the Claimant with the required protective gear during his employment? The Claimant said he was not provided any protective gear that was why he was not wearing any on the day of the accident. This puts the burden of proof on the Defendant, being the employer, to prove that the Claimant was provided the protective gears. It is only by this proof the Defendant will be absolved from liability for the injury suffered by the Claimant when carrying out his duties for the Defendant. I have examined the evidence of the Defendant, but I cannot find any proof that the Claimant was provided the protective gears. Merely alleging that the Claimant was provided with the protective gears is not sufficient to dislodge the Claimant’s case that he was not given. The Defendant must go further to proffer concrete evidence which would convince this court to believe that the Claimant was actually provided, and he did receive the protective gears. No such evidence was shown by the Defendant. The Defendant has not been able to prove that it provided the Claimant with protective gears. Consequently, I find that the Claimant was not provided protective gears, including eye goggle, by the Defendant while he worked with the Defendant. Now, it is obvious from the evidence that it was a necessary requirement in the employment of the Claimant and the nature of his duties to be provided with protective gears. The Defendant’s evidence shows the importance of the protective gear in the duties of the Claimant such that DW1 said a staff not wearing the protective gears would not be allowed into the Defendant’s plant. It is also clear to me that such protective gears were meant to protect staff of the Defendant from injuries in the course of their duty. When the Defendant said the Claimant was provided with protective gear, it is an admission that the Claimant’s work was hazardous and needed the gears to protect him from harm or injury. But the Defendant failed to provide the Claimant with the protective gears thus exposing the Claimant to harm and injury. Had the Defendant given the Claimant an eye goggle, the acid spill from the exploded car battery would not have found its way directly into the Claimant’s eyes. The injury to the Claimant’s eye would have been averted or, at least, mitigated. The Claimant was exposed to injury by the Defendant when it failed to provide him with the protective equipments. The Claimant now has damaged eyes such that he is on continuous treatment and wears recommended eye glasses. In a service relationship between an employer and an employee, the employer owes a duty of care to its employees. The employer is always under a duty to take reasonable care for the safety and health of the employee and where an employer fails or was negligent in its duty of care to the employee resulting in injury to the person of the employee, the employer will be liable in damages to the affected employee. See IYERE vs. BENDEL FEED AND FLOUR MILL LTD (2009) All FWLR (Pt. 453) 1217 at 1244; IGHOSEWE vs. DELTA STEEL COMPANY LTD (2008) All FWLR (Pt. 410) 741 at 757. In this case, I find that the Claimant has been able to prove that the Defendant owes him a duty of care and that he was injured while in the employment as a result of the negligent act of the Defendant. The Claimant has made out a case for award of damages against the Defendant. See ROYAL ADE NIGERIA LIMITED vs. N.O.C.M. CO. PLC (2004) 8 NWLR (Pt. 874) 206. The Defendant did breach its duty of care it owes to the Claimant by failing to provide the Claimant with protective eye goggles. In my view, the Claimant suffered injury to his eyes as a result of the Defendant’s negligence and breach of its duty of care it owed to the Claimant. Therefore, the Defendant is liable to pay damages to the Claimant. The claimant claims the sum of N50,000,000.00 as damages. From the medical report, that is Exhibit C3, the Claimant’s eye is not permanently damaged. He is only required to use prescribed eye glasses. From my assessment of the Claimant’s condition, the sum of N2,000,000.00 is adequate to compensate him for the injury and damage to his eyes as a result of the Defendant’s negligence. In his evidence, the Claimant mentioned that during his employment, he was contributing to the Defendant’s pension fund scheme with IEI Anchor Pensions. After the termination of his employment, the Defendant refused to issue him the necessary documents which would enable him access his pension. He also said he is entitled to the sum of N100,000.00 from the pension scheme. Having said all these, the Claimant however did not claim any relief based on these allegations. In reaction to the allegation of the Claimant, the DW1 stated that the Claimant’s pension account with IEI Anchor Pension is the Claimant’s personal account and the Defendant has no business with the running of the account. DW1 also said that the Defendant cannot stop the Claimant from accessing his pension. Under cross examination, DW1 further explained that pension fund is released by the PFA to a staff leaving the employment upon a clearance issued to the staff. The Claimant was not issued clearance because he did not come for clearance after termination of his employment. DW1 also stated that because the Claimant never came back for clearance or to return his safety kits, the Defendant could not clear him for his pension. From the evidence of the parties, it is clear to me that the Claimant has his pension in his pension account with IEI Anchor Pension, but he is not able to access his pension since termination of his employment because he was not issued clearance by the Defendant which would enable him access his pension. From the evidence of the parties, the clearance from the Defendant is necessary to enable the Claimant access his pension. Let me state that the fund in the Claimant’s pension account belongs to the Claimant and he is entitled to have access to it so that he can utilise it. I do not think the Claimant should forfeit his pension simply for the reason that the Defendant refused to issue him clearance. Although the Defendant said it was the Claimant who did not show up for clearance after termination of his employment, I do not think that should be enough reason for the Claimant to lose his entitlements in his pension account. In my view, it is in the interest of justice and equity that the Defendant issues the Claimant the required clearance so that he can be able to access his pension with IEI Anchor Pension. In conclusion of this judgment, I find no merit in reliefs 1 and 2 sought by the Claimant. These reliefs are dismissed. Reliefs 3 and 4 are granted in the following terms: 1. The Defendant is ordered to pay the sum of N235,000.00 (Two Hundred and Thirty Five Thousand Naira) to the Claimant being additional money spent by the Claimant for further medical treatments. 2. The sum of N2,000,000.00 (Two Million Naira) is awarded to the Claimant as general damages against the Defendant for injuries sustained by the Claimant in his eyes as a result of acid spillage into his eyes from a factory accident due to the failure of the Defendant to provide the Claimant with protective or industrial safety eye glasses while working with the Defendant. 3. Cost of N100,000.00 (One Hundred Thousand Naira) is also awarded in favour of the Claimant. This court further orders the Defendant to issue the Claimant a clearance letter to enable the Claimant process payment of his pension with IEI Anchor Pension. I make this order pursuant to the powers granted to this court in Section 14 (2) of the National Industrial Court Act, 2006. The orders hereby made must be complied with within 30 days from today, failing which the monetary orders will begin to accrue an interest at the rate of 10% per annum until it is fully liquidated. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge