Download PDF
JUDGMENT 1. Introduction and Claims The Claimant commenced the action against the Defendant by a General Form of Complaint and other accompanying processes filed on the 7/8/2015, wherein the Claimant sought the following reliefs- 1. An order directing the Defendant Company to bear the cost of all medical expenses to be incurred in the course of the treatment of the injury suffered by the Claimant in the course of carrying out his duty at the Defendant Company. 2. The sum of N100,000,000.00 (One Hundred Million Naira) only as compensation for the claimant’s permanent incapacitation. 3. The sum of N50,000,000.00 (fifty Million Naira) only as general damages 4. The cost of this action as assessed by this Honorable Court. The Defendant reacted by filing a Notice of Preliminary Objection challenging the jurisdiction of this Court to hear this matter dated 27/11/15 which was heard and dismissed on 29/2/15. The Defendant also filed a statement of defense on 27/10/15 together with all requisite processes as directed by the rules of court. 2. Case of the Claimant. The Claimant opened his case on 6/12/17 and testified as CW1. He adopted his written deposition on oath dated 13/3/17 as his evidence in chief and tendered four documents which were admitted in evidence and marked Exh YA1 – Exh YA4. The case of the Claimant as revealed from his evidence in chief is that he worked at the Defendant’s factory situate at Sango Otta and that on 17/7/14, while in the course of his duty of cleaning machines and equipment in the Defendant company under direct instructions of the supervisor in charge, he entered into the machine used for crushing tiles for the purpose of cleaning it, the machine suddenly became powered causing him grievous injuries in the process; that he lost consciousness and was rushed to Rubee Hospital in Sango Otta for first aid treatment before he was later transferred to Kamorass Specialist Clinic at Victoria Island Lagos because of the severe damage suffered on his left arm and that a surgical operation was carried out on his arm but that despite the surgery, he suffered excruciating pain and that his frequent visit to Kamorass Specialist Clinic neither eased the pain nor aid the use of his left arm; that due to this fact, he had to seek alternative medical services at Cedarcrest Hospital, Ikeja where he was informed by an Orthopedic Surgeon that he will have to undergo further corrective surgeries to relieve his left arm and ease the pain and that the Defendant had sent him home to his fate with no sort of compensation since the accident despite a letter of demand by his Solicitors. Under cross examination the witness reiterated that he was treated at Rubee Hospital and Kamorass Specialist Hospital for the injuries he sustained on 17/7/14; that the Defendant paid part of the medical bills but stopped paying for his outpatient treatment; that he did not make any payment at the two Clinics; that he was advised by his Counsel to visit Cedarcrest Hospital and that he was treated there but that he had no evidence for the said treatment received before the court; that he did not show the report from Cedarcrest Hospital to either the Doctors at Kamorass Hospital or the Defendant; that the implant and stitches in his arm where removed on at Kamorass Clinic on 10/3/15 and 20/3/15 respectively and that he did not do any other X-ray after 20/3/2015. Witness added that as against his N23,000 salary, the Defendant was paying him only N17,000 monthly which he used in buying drugs and other medications but that he does not have the receipt of these purchases and that he was told by the Defendant to resume work at a point but that he couldn’t because his arm was still paining him seriously. 3. Case of the Defendant The Defendant opened its case on 30/1/18 and called one Peter Okelue as DW1. DW1 witness adopted his witness deposition on oath dated 27/10/15 as his evidence in chief and tendered 15 documents. The documents were admitted in evidence and marked Exh. PO1 – Exh. PO15. The case of the Defendant is that the claimant is a staff of Sambhu Nigeria Limited and was seconded to work with the Defendant on contract basis; that immediately the incident occurred, the Claimant was rushed to the Defendant’s retained hospital i.e. Rubee Hospital where he was attended to and later referred to Kamorass Specialist Hospital at the request of the Defendant to ensure that the Claimant got the best medical treatment; that the Claimant was given a good medical care at all times and there was no indication from the Claimant, his family or his employer i.e. Sambhu Nig. Ltd that the medical services received were neither satisfactory nor was the Defendant in formed or aware that the claimant consulted Cedarcrest Hospital or any other hospital; that the medical report relied upon by the Claimant is not objective and that Kamorass Specialist Clinic did a full-length scotch cast for the Claimant; that the Defendant has been fully responsible for the treatment of the Claimant, paid all hospital bills and transportation to the hospital after he was discharged and also paid his salary during his period of treatment and absence from work from July, 2014 to September, 2015; that the Defendant wrote to Kamorass Specialist Hospital out of concern for the Claimant’s health and received a medical report dated 1/7/15 from the hospital stating that the Claimant had a removal of implant on 10/3/15 after a sound healing of the humeral fracture; that he was last reviewed on 20/3/15 and made remarkable recovery; that his left hand was more functional and all wounds soundly healed; that after the payment of the Claimant’s July salary, he was asked to resume work in August but he didn’t and neither did he give any excuse or complain of pain but went ahead to institute this action against the Defendant. The Defendant denied that the claimant has been permanently incapacitated, that the Defendant has been the one taken care of all medical bills of the Claimant and has paid a sum not less than N1, 225,445 (One Million Two Hundred and Twenty Five Thousand Four Hundred and Forty Five Naira) and N22, 000 (Twenty Two Thousand Naira) for transport and other miscellaneous expenses; that the Defendant is not aware of the Claimant’s continuous excruciating pain; that the Defendant is ready to bear the cost of the treatment of the Claimant in any hospital agreed to by both parties preferably a government hospital or specialist orthopedic hospitals bearing in mind that the Claimant and Defendant’s doctors appear to have slightly differing opinions and that the Defendant took up group insurance policy for all its permanent and contract staff and shall pay the Claimant any compensation that may be assessed payable to him by the insurance company. Under cross examination, the witness stated that the Claimant was a staff of Sambhu Nig. Ltd., and not the Defendant; that the Defendant has insurance policy as regards its entire staff including the Claimant and that the payment would be reclaimed from the insurance company; that the Claimant had the accident in the Defendant’s company, in the course of his services to Sambhu Nig. Ltd.; that the Defendant did not tender the said insurance policy; that the Defendant to some extent relies on the Employee Compensation Act, and that the Defendant is a contributory to the Act; that he has been with the Defendant for over 10years and that though he gave the Claimant safety gear, he does not know if the Claimant used same on the day of the accident. 4. Submissions of Learned Counsel At the close of trial, learned counsel to the defendant filed an 18-page final written address on 8/5/2018 wherein he set down 3 issues for determination thus: 1. Whether this court has jurisdiction to entertain this action, being claim for injury arising out of or in the course of employment. 2. Assuming without conceding that this court has jurisdiction, whether there is anything before the court to entitle the claimant to any of his claims and 3. Assuming without conceding that the action is properly brought against the defendant, and the claimant is entitled to any compensation, how much is the claimant entitled to as compensation for the injury he sustained. In arguing these issues, learned counsel submitted that jurisdiction is the heart and sole of a case and by the claimant’s cause of action, which is claim for compensation, this court lacks original jurisdiction by virtue of the provisions of sections 2, 4(1), 6, 26 and 55 of the Employees Compensation Act, 2010. Learned counsel also placed reliance on the cases of Maduka vs Earth Moving Int’l Ltd & Anor (2013) 33 N.L.L.R. (pt 95) pg 299 and Owoseni vs Faloye & Anor (2005) LPELR 2856 (SC). Learned Counsel further submitted that the claimant has failed to establish that he suffered injury and the extent, nature and degree of the injury suffered neither did he plead or testify to convince the Court on how he arrived at the amount claimed, thus, he is not entitled to the sum of N100,000,000 claimed or any other sum for compensation; that the Claimant is also not entitled to general damages as he has not established any wrong against the Defendant as a claim of damages can only arise if the is a breach of any legal duty to the claimant. Counsel also submitted that the No 1 relief sought as contained in the General Form of Complaint is vague and constitute no claim at all. He then urged the court to dismiss the claims of the claimant and the reliefs sought in its entirety for lack of merit and sufficient proof. The learned counsel to the claimant filed an Affidavit of Urgency and a Motion on notice to amend its Statement of facts, Affidavit in support of Motion and a written Address on 16/5/18 to which the Defendant filed a Counter Affidavit and a Written Address on the 24/5/2018. The said claimant’s motion was heard and dismissed by this Honorable Court on 13/6/18. After which the learned counsel to the claimant filed a final address of 12 pages on 6/7/18. In it Counsel set down the following issues for determination - 1.Whether this honorable court possesses original jurisdiction to entertain this suit, and 2.Whether the claimant is entitled to the claims and ought to be fully compensated in this suit. In arguing this issues, Counsel submitted that the defense counsel is estopped from raising the issue of jurisdiction in his address as same has being raised by him in his Notice of preliminary objection and rightly overruled by this honorable court on 29/2/16. Counsel submitted that assuming but not conceding that the court is inclined to revisit this issue, the provisions of the Employees Compensation Act, 2010 relied upon by the defense counsel does not ouster the jurisdiction of this court to adjudicate over this matter, and believing otherwise is a misconception on the part of the learned counsel. The Claimant counsel submitted that an employee who has suffered any injury in the course of his employment has the right of election as to whether to claim compensation under the Employees Compensation Act or exercise his right of action in a court of law. He placed reliance on the case of Suleiman vs Hongzing Steel Co. Ltd (2015) 59 N.L.L.R (Pt 204) 232. Section 254C (1) (a) & (b) of the 1999 Nigerian Constitution (as amended), section12 of the ECA, 2010 and the Long title of the Factories Act. In arguing the second issue, the learned counsel submitted that where the provisions of a statute is breached then there is a presumption of negligence and this presumption operates against the defendant in this case as this was established under cross examination by the defense witness. In relation to the claims of the claimant, the counsel submitted that the defendant never denied that there was an accident in the factory in which the Claimant sustained injury in the course of his duty and that the Defendant has conceded to taking care of the medical expenses of the claimant. And that the claimant has led evidence in line with pleadings required sustaining an award for compensation and damages. He therefore submitted that the court has jurisdiction to entertain this suit and urged the court to grant the claims of the claimant. The Defense Counsel subsequently filed a reply address on points of law on 17/9/18. In it, Counsel submitted that the issue of estoppel as raised by the Claimant’s Counsel does not arise the case before a the court and a ploy to mislead the court; that the claims of the Claimant are based on compensation and not negligence and that a counsel’s final address cannot take the place of pleadings as negligence was neither alleged nor pleaded by the Claimant. 5. Decision I have read all the processes filed by the Learned Counsel in this case. I listened to the oral testimonies of witnesses called at trial as well as carefully watched their demeanor. I read the final written addresses of counsel and evaluated all the exhibits tendered and admitted in the course of trial. Having done all these, I have formulated two issues for the just determination of this case thus: 1. Whether this Court has original jurisdiction to entertain this matter 2. Whether the Claimant has proved his case to be entitled to any or all the reliefs sought. In respect of the first issue set down for determination, the defense Counsel argued that this court lacks original jurisdiction to entertain this suit by virtue of the provisions of sections 2, (4) (1), 6 and 55 of the Employees Compensation Act, 2010 on the ground that the claimant’s cause of action is premised on compensation for injuries sustained in the course of carrying out his duties at his work place; that the original jurisdiction in such matters is vested in the Nigerian Social Insurance Trust Fund Management Board and that this court only has an appellate jurisdiction over the decision of the Board. The issue of jurisdiction was raised by the learned Counsel in his preliminary objection filed on 27/11/15. Learned Counsel on either were heard on this preliminary objection and a considered Ruling was delivered on 29/2/16. In that Ruling this Court found against the Defendant/Applicant and held that it has jurisdiction to hear and determine this case. There was no appeal against that Ruling at least not to the knowledge of this Court. It is both unfortunate and unprofessional for the learned Counsel, at the stage of address, to have raised same issue already argued and decided upon by this Court. The proper option available to him was to have appealed the Ruling. He did not do so. Perhaps he saw the futility of doing so. I will say no. Suffices to reiterate the fact that the provisions of the Employees Compensation Act, 2010 do not in any way either expressly or indirectly oust the original jurisdiction of the National Industrial Court in matters relating to the compensation of an employee for injury suffered in the work place but merely provides an alternative to the said employee to either seek redress in this court or from the Nigeria Social Insurance Trust Fund Management Board. See Suleiman vs Honqzing Steel Co Ltd (2015) NWLR (pt. 204) 232. The first issue is thus resolved against the Defendant and I hereby hold that this court has jurisdiction to entertain this suit. In respect of issue 2, the Claimant sought 4 reliefs in this court against the Defendant. They are as follows: 1. An order directing the Defendant Company to bear the cost of all medical expenses to be incurred in the course of the treatment of the injury suffered by the Claimant in the course of carrying out his duty at the Defendant Company. 2. The sum of N100,000,000.00 (One Hundred Million Naira) as compensation for the claimant’s permanent incapacitation. 3. The sum of N50,000,000.00 (Fifty Million Naira) as general damages. 4. The cost of this action as assessed by this Honorable Court. It is trite law that he who asserts must prove. It is for the Claimant to prove the reliefs sought by him on the balance of probability. This burden does not shift to the Defendant and neither can the Claimant rely on the weakness of the case of his adversary but must rely on the strength of his own case. See Alhaji Bamidele Lawal vs Union Bank of Nigeria Plc & Ors. (1995) LPELR- 1762 (SC); Opoto & Ors vs Anaun & Ors (2015) LPELR – 24734 (CA) and section 131 of the Evidence Act, 2011. Learned Counsel to the Claimant raised issue of negligence for the first time in his final written address. It is trite law that the address of Counsel does not take the place of pleadings and thus new issues of law cannot be raised in the final address to correct the omissions and anomalies in the case of a party. Where the Claimant is claiming negligence on the part of the defendant, he must adduce evidence to prove the essential elements of negligence and not merely state it in his final address. It cannot be said that sufficient facts and evidence have been placed before this Court to establish that the Defendant in this case was negligent or that the Claimant merely disregarded safety instructions given to him as all these were not contained in the parties pleadings but only in the Claimant’s Counsels address. I will like to reiterate the established principle of law that parties are bound by their pleadings. Thus the argument of the Claimant Counsel as it relates to the issue of negligence is hereby discountenanced. In proof of the Claimant’s case and apart from his evidence in chief, the Claimant tendered 4 Exhibits as follows; 1. Medical Report from Cedacrest Hospital, 2. Letter of demand for compensation from the Claimant’s Solicitors 3. Reply to the said letter of demand by the Defendant’s Solicitors, and 4. Admission bill estimate sheet from Cedacrest Hospital. My simple understanding of this case is that the Claimant sustained an injury in the course of working for the Defendant and was taken to two different hospitals; the first administered a first aid treatment while the second hospital (Kamorass) gave full medical treatment including surgery and the Defendant took full financial responsibility for the medical treatments; that the Claimant on the advice of his Counsel and of his own volition visited another hospital (Cedarcrest) after being discharged by the hospital used by his employer in treating him without consulting either the Doctors at Kamorass hospital or his employer, neither did he complain about the pain allegedly suffered by him to his employer or the hospital and that after he was certified as fit to resume work by the hospital that treated him; he failed to do so, on the ground of him still being in pains which he did not communicate to his employers. Even though Exh. PO9 certified the Claimant had recovered tremendously and fit to resume work, Exh. YA1 states a contrary opinion and supports the Claimant’s assertion that he was still feeling excruciating pain and unfit to work. There is clearly a divergence. In the case of Oke vs Trenco (Nig) Ltd (1963) ANLR 621, the Court held that where two experts express divergent opinions, a trial Court may accept either part or whole of such opinions. Exh PO9 was prepared by the hospital that treated and managed the injury of the Claimant from inception. That hospital had better knowledge of the Claimant’s medical history. Yet the claimant neither informed the hospital that he was still feeling excruciating pain nor brought to its attention the existence of Exh.t YA1 which is the crux of the Claimant’s relief 1. The medical treatment and expenses analysis by Cedacrest hospital and as contained in Exh. YA4 can therefore not be held by this Court to be the correct medical position of the Claimant and thus open to doubt. In relation to relief 2 sought by the Claimant which is the payment of the sum of N100,000,000 as compensation for the Claimant’s permanent incapacitation (emphasis mine). There is nothing in both medical reports tendered that showed or suggested permanent incapacitation of the Claimant’s limb; Exh PO9 only assessed disability at 10% as at the time of writing the report without stating whether the said disability will be permanent or not while Exh. YA1 said nothing about such but merely stated treatments to be administered based on the complaint lodged by the Claimant and medical examination carried out by the Doctor. The fact that the claimant suffered a permanent incapacitation was derived from Exh YA2 which is a letter written by the Claimant’s Solicitors. This cannot be considered an expert opinion though lawyers are presumed Learned in all fields. Thus the fact that the Claimant has been permanently incapacitated has not been proved before this Court and thus relief 2 must fail accordingly. It is trite that for every liability there will be resulting damages and having held that reliefs 1 & 2 have not being proved satisfactorily, the Claimant is therefore not entitled to the sum of N50,000,000 as general damages. However, I am not oblivious to the averments in the Statement of Facts wherein the Claimant avers that he is still suffering from serious pain. I note also paragraph 21(b) of the Statement of Defense which states thus - “The Defendant avers that its ready to bear the cost of treatment of the Claimant in the hospital agreed to by both parties preferably a government teaching hospital or specialist orthopedic hospital as they have seasoned and specialist consultants, bearing in mind the Claimant and Defendant doctors appear to have slightly differing opinions.” It is herby ordered that a further medical opinion be sought from a government owned orthopedic hospital preferably Government Orthopedic Hospital at Gbobi in Lagos State as to the medical condition of the Claimant. I further direct that where further medical treatment is required from the said medical opinion, the Defendant in the suit shall bear the cost of such treatment. Finally, for the avoidance of doubt and for all the reasons as contained in this judgment, 1. Claim 1 of the Claimant succeeds in part, only to the extent that a further medical opinion and treatment be sought from a government owned Orthopedic or specialist hospital and cost of same should be taken up by the Defendant 2. Claims 2&3 are hereby dismissed for failure to discharge the evidential burden of proof expected of the claimant for this Court to grant the reliefs sought by him. 3. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge