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By a complaint dated and filed 8th June 2012, the claimant is claiming against the defendant the following reliefs – 1. A sum of N10,000,000.00 being special and general damages for injury suffered by the claimant for the negligence of the 2nd defendant in the course of his work with the 1st defendant. 2. A declaration that the arbitrary termination of the claimant’s employment in July 2010 by the 1st defendant is wrongful and should be reinstated. 3. Cost. Accompanying the complaint are the statement of claim, written statement on oath of the claimant, the claimant’s list of witnesses, claimant’s list of documents to be relied upon at the trial and copies of the documents (Exhibits C1, C2, C3, C4(a) – C4(c) and C5(a) – C5(i). The letter supposedly written by counsel to the claimant to one Doctor Jeje of Lagos University Teaching Hospital, Yaba, Lagos dated 20th June 2011 is not marked as an exhibit given that its evidential value in the instant case cannot be discerned. In reaction, the defendants filed a memorandum of appearance, defendant’ statement of defence, list of witness, defendants’ witness statement on oath (the copy in the case file is actually a certified true copy), list of documents to be relied upon and copies of the documents marked as Exhibits D1(a) and D1(b), D2, D3, D4 (consisting of 24 sheets), D5 (consisting of 4 sheets) and D6. The claimant filed a reply to the defendants’ statement of defence. The parties called a witness each to testify. The claimant testified on his behalf as CW, while William Barrow, Assistant Chief Security Officer of the 1st defendant, testified as DW on behalf of the defendants. The case of the claimant from his sworn deposition is that he was a Security Guard and Tally Clerk with Ports and Terminal Multi Services Limited which is situate at 1st Gate, Tin-can Island Port Complex, Apapa, Lagos. That he was employed in 2006 as a Security Guard with the 1st defendants company. Upon his employment, he was issued with an Identity Card as a staff of the company. That he performed my job diligently and was commended by his employer. He went on that on the 9th August 2008 at the 1st defendant company he had an accident due to the negligent and reckless driving of the 2nd defendant. He was rushed to Robertson Hospital for treatment by the defendant but was later abandoned to his fate. He was then unjustly sacked from my place of work without compensation. That his counsel through letters approached the 1st defendant that he still has pending surgical operation to correct his ruptured urinary tract at Lagos University Teaching Hospital for which he needs money to be able to pay for the operation. That the 1st defendant bluntly refused to yield to his demand. To the claimant, it is mandatory and proper for the 1st defendant to pay him compensation for the permanent disability he sustained in the course of his employment at the 1st defendant company. The claimant then prayed for the Court to uphold his claims as contained in the writ of summons and statement of claim to the effect that the 1st defendant should pay him special and general damages for the permanent disability. I indicated earlier that the sworn deposition of DW is a certified true copy. The Court, while considering the case for judgment, noted that the deposition of Williams Barrow, as defence witness, in the case file was actually not signed. The attention of this fact was drawn to both counsel in the matter. Both counsel then ascertained their copies were actually signed hence there was no objection in that respect throughout their written addresses. Both counsel then agreed that the Court can use the copy of the claimant’s counsel in finalising the judgment. The Court as a result used the copy of the claimant’s counsel in the writing of this judgment. The case of the defendants is that the truck driven by the 2nd defendant hit a stationary truck which hit another truck that eventually hit the claimant. Upon occurrence of the accident, the claimant was rushed to the 1st defendant’s retained hospital where the claimant was given comprehensive treatment spanning 399 days (09/08/08 to 11/09/09) at a cost of N3,762,000.00, referring to Exhibits D1(a) and D1(b). That the 1st defendant processed from its insurers medical expenses which were paid to the hospital and the assessed entitlements under the Workmen’s Compensation Act which were paid to the claimant (Exhibits D2 and D3). In addition, the claimant enjoyed his full salary while incapacitated (Exhibit D4) and when he resumed, he was posted to various duty posts until 8 months later when his service was transferred to Santana Security Agency Limited and he was paid a severance package of N300,000 upon which he issued a discharge to the 1st defendant (Exhibit D6). The defendants then raised three issues for the determination of the Court, namely – (a) Whether in the circumstances of this case, the claimant is entitled to special and general damages having failed to prove his case, the nature of his alleged injury and specifically plead particulars of special damages. (b) Whether the claimant is entitled to further compensation by the defendants. (c) Whether the 1st defendant is liable to reinstate the claimant. Before proceeding to address the issues raised, the defendants drew the Court’s attention to the fact the claimant’s reply to the defendants’ statement of defence dated 11th September 2012 was not accompanied by a witness statement on oath, implying that no evidence was led by the claimant on the reply. That it is trite that where no evidence is led on a pleading, the pleading is deemed abandoned, citing Balogun v. UBA [1992] 6 NWLR (Pt. 247) 336. To the defendants it is common ground between the parties that an accident occurred on 9th August 2008 involving the claimant. However, that it is trite that the onus is on the claimant in a case of negligence to prove the ‘negligence’ and unless and until it is proved, the onus does not shift, referring to Ugochukwu v. Unipetrol Plc [2002] 20 WRN 1. That the mere occurrence of an accident is not proof of negligence, citing Abubakar v. Joseph [2008] 13 NW4R (Pt. 1104) 307. That there is nothing in the 11-paragraphed witness statement on oath filed by the claimant and indeed in the entire statement of claim that amounts to a prima facie or credible proof of negligence alleged against the defendants. The particulars of the alleged negligence were not stated and facts evidencing negligence or recklessness of the defendants were not put in evidence or elicited by cross-examination. That it is not just enough to make a blanket allegation of negligence; credible evidence must be adduced giving full particulars of the negligence, referring to Dare v. Fagbamila [2009] 8 WRN 170 and Koya v. UBA [1997] 1 NWLR (Pt. 481) 251. The defendants went on that the alleged damage suffered by the claimant has not been proved before the Court. That the statement in paragraph 8 of the claimant’s witness statement to the effect that: “I still have pending surgical operation to correct my rupture urinary tract at Lagos University Teaching Hospital” and the photographs attached will not amount to such a proof. There is no medical evaluation by a medical doctor, no statement of condition by LUTH or concise statement of the probable cause, current condition and the proposed treatment for the alleged rupture. That these are important and huge lacunas which do irreparable damage to the claimant’s case. The defendants then cited the case of Omoreigie v. Omigie [1990] 2 NWLR (Pt. 130) 29 at 40, where Omo, JCA, stressing the inevitability of medical evidence in personal injury cases, stated as follows – The specific nature of the injuries and the degree of seriousness should have been testified to, and this could have been best established by medical evidence. If she was in hospital for two months, what difficulty would have been in calling medical officers or even nurses who treated her to testify on this? What disability the loss of a tip of a particular finger constitutes is a matter for an expert...how did counsel expect to establish this without medical evidence? That though the claimant listed one Dr. Jeje in his frontloaded documents as a witness to be subpoenaed, he never got around to call the witness. The defendants continued that special damages must be strictly proved. That the scanty evidence adduced by the claimant does not amount to the strict proof demanded by law. The claimant not only failed to specifically plead particulars of his claim, there was no evidence led in support of his claim for special damages. That the averment of fact or facts in a claim is not the same thing as praying for a relief. There must be some facts giving rise to the relief or reliefs sought. That in the case of Oshinjinrin v. Elias [1970] All NLR 158 at 161 Coker, JSC said – Undoubtedly the rule that special damages must be strictly proved applies to cases of tort. In effect the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed. This however does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head.... Regarding issue (b), the defendants contended that the claimant is not entitled to double compensation, citing section 9(1) of the Workmen’s Compensation Act Cap. W6 LFN 2004, which provides as follows – Where temporary incapacity, whether total or partial, result from the injury – (a) the injured workman’s basic salary pay shall continue to be paid for a period of six months and thereafter, if the injured workman has not resumed the duties of his office, shall be paid a sum equal to half of his basic pay for an additional period of three months; and (b) if at the expiration of the total period mentioned in paragraph (a) of this subsection, the injured workman has not resumed the duties of his office and compensation due to him has not been determined, he shall be entitled to a sum equal to one quarter of his monthly salary for the next succeeding fifteen months, but any sum paid under this subsection shall be deducted from any sum payable as compensation. The defendants then submitted that by parties’ evidence before the Court, the accident to the claimant occurred on 9th August 2008 and he was hospitalized thereafter at Lagos Clinic and other referred clinics where he was given comprehensive treatment spanning 399 days at a total cost of N3,762,000. Exhibits D1(a) and D1(b)) are invoices of medical treatment of the claimant). That particulars of treatment given to the claimant are as contained in paragraphs 7 and 8 of the DW1 statement on oath dated 20th July 2012. It was part of the evidence before the Court that upon the occurrence of the accident necessary steps were taken by the 1st defendant to process the claimant’s entitlement under the Workmen’s Compensation Act from the 1st defendant’s insurers, Cornerstone Insurance Plc. A total sum of N206,675.81 was assessed as due (claimant was incapacitated for 399 days and his basic salary was N24,200 x 6 months = N145,200.00; 50% N12,106 x 3 months N36,300 and 25% N6,050 x 129 = 25,175.81) was paid to the claimant as contained in Exhibit D3 in line with the provisions of Workmen’s Compensation Act. The sum of N3,762,000 being the claimant’s medical expenses was deducted from the amount received from Cornerstone Insurance Plc (Exhibit D2). That notwithstanding the payment made to the claimant under the Workmen’s Compensation Act, the claimant was paid his full salary throughout the period of his incapacitation/hospitalization (Exhibit D4) by 1st defendant mainly on compassionate ground and corporate policy of the 1st defendant. To the defendants, for a better appreciation, the sequence is as stated below – a) The accident occurred on 9/8/2008. The claimant was thereafter rushed to the clinic and was incapacitated for a period of 399 days. b) His full medical bills were paid via the cheques issued by the Insurers, Cornerstone Insurance Plc, referring to Exhibit D2. This was in compliance with section 15(6) of the Workmen’s Compensation Act. c) His entitlements were also assessed as stated above and as acknowledged in Exhibit D3. This was in compliance with section 9 (1) of the Workmen’s Compensation Act. d) In addition, his full salaries were also paid for the entire period of incapacitation. This is apart from the 6 months full salary and others already reckoned in the Workmen’s Compensation, referring to Exhibit D4. The defendants then asked: is it unfair to burden the company beyond these things that had been done for the claimant? The defendants went on that having been paid under the Workmen’s Compensation Act, the clamant is estopped from further claims. That in the case of Membere v. I.G.P [1965] All NLR 485, the court dismissed the claim of a Policeman who having been paid his pension for incapacitation, brought another claim under the Workmen’s Compensation Act for the same cause of action. That where an injured worker has been paid under the Act, he is estopped from further proceedings on the same cause of action. For to allow the injured worker to approbate and reprobate will make ‘non-sense’ of the Workmen’s Compensation Act (and/or its successor, the Employee’s Compensation Act) and the whole edifice of employees insurance that had been erected thereon. On issue (c), the contention of the defendant is that there is no compulsion in private employment. The claimant claims that the termination of his employment was arbitrary and he should be re-instated. Here, the defendants stated that there is evidence before the Court that the claimant was absorbed by Santana Security Agency Limited in August 2010 as a result of the corporate policy of the 1st defendant to outsource all non-core services to service providers. The exercise affected about 100 staffers of the 1st defendant. That the claimant was not owed any salary while he was with the 1st defendant. Indeed, on his transfer, he was paid a severance package of N300,000 upon which he issued a discharge, Exhibit D6. In consequence, the defendants submitted that the claimant has not made out a reasonable cause of action against the 1st defendant. That the 1st defendant did not terminate the employment of the claimant; it got Santana Security to absorb him (instead of sacking all the staff) and he is still on their pay roll. That in private employment where the master can ‘hire and fire’ for good, bad or no reason at all, the Courts are mindful of not foisting an employee on an employer and it is generally agreed that re-instatement is not a viable option in such an instance. In the case of Emenite Ltd v. Oleka [2005] 6 NWLR (Pt. 921) 350 at 358 Ogebe, JCA (as he then was) held that – It is the law that in ordinary relationship of master and servant, the court of law will not generally impose a servant upon a master. If the contract of employment is terminated wrongfully, all that is done is to award damages in lieu of notice as specified in the conditions of employment. The defendants concluded by urging the Court to uphold its argument and dismiss the claimant’s claim as same is frivolous, gold digging, vexatious and tendentious. In reaction, the claimant framed three issues for the determination of the Court, namely – 1. Whether the claimant has proved his case against the defendants to warrant special and general damages. 2. Whether the claimant has been compensated in accordance with the provision the Employee’s Compensation Act. 3. Whether the 1st defendant can terminate the appointment of the claimant when the letter of termination has not been given to him. Regarding issue 1, the claimant contended that the reply to the statement of defence dated 11th September 2012 which he filed need not be accompanied by a witness statement on oath because it has already been filed together with the claimant’s complaint and evidence has been adduced on the pleading. The claimant then went on that he was employed in the 1st defendant company in 2006 and performed his job creditably well that he received commendation and accolades from his employer. That he was injured on 9th August 2008 at his duty post by the recklessness and negligent driving of the 2nd defendant. That he has proved his case beyond preponderance of evidence by tendering Exhibits C1 – C5 and the pictorial exhibits that were also tendered in evidence by him. To the claimant, the sole witness of the defendant, Mr. Williams Barrow, corroborated the evidence of the claimant, when he was cross-examined and confirmed that the claimant was hit by the 2nd defendant with a trailer at his duty post. In the case of Iyere v. Bendel Feed & Flour Mills Ltd [2009] 3 WRN 146, Muhammad, JSC said – Where an employer expressly authorizes his employee to do a particular act which is in itself a tort or which necessarily results in a tort, the employer is liable to an action in tort at the suit of the person injured. His liability is equally clear where he ratifies a tort committed by his employee without his authority. Where the act which the employee is expressly authorized to do is lawful, the employee does the act in such a manner as to occasion injury to a third person, the employer cannot escape liability on the ground that he did not actually authorize the particular manner in which the act was done, or even on the ground that the employee was acting on his own behalf and not on that of his employer. For the employer (Master) to be vicariously liable it is necessary to prove that his employee (Servant) has been guilty of a breach of a duty towards the person injured. The claimant continued that it is a general requirement of law that where there exist a service relationship between an employer and employee, the former is under a duty to take reasonable care for the safety of the latter in all the circumstances of the case so as not to expose him to an unnecessary risk, citing Shell Petroleum Dev. Com. (Nig.) Ltd v. Ikontia [2010] 45 WRN 138. That the claimant has successfully proved his case against the defendants that he was negligently injured by the defendants and they have not been able to rebut or deny the negligence in the defendants’ statement of defence or defendants’ witness statement on oath. It is the position of law that where evidence given by a party is unchallenged or uncontroverted, a court of law must accept it and act on it, citing UBA Ltd v. Achora [1990] 6 NWLR (Pt. 156) 254 at 282 – 283. To the claimant, the defendants’ witness stated in cross-examination that the claimant was hospitalized closed to two years because of the life threatening injury the claimant sustained while he was hit by the 2nd defendant at his duty post. That the claimant has proved in his evidence and pictorial exhibits tendered that his urinary tract has been destroyed and required urgent surgical operation to correct this. The claimant is permanently disabled and can only urinate with catheter. That it is trite law that general damages, which are losses which flow naturally from the defendant, its quantum need not be pleaded or proved as it is generally presumed by law. In the case of Taylor v. Ogheneovo [2011] 51 WRN 164, Sanusi, JCA held – It is trite law that in personal injury cases, once there is evidence of injury, pains and permanent incapacitation as in this instant case, the victim or plaintiff is entitled to be awarded reasonable general damages, which said award should be based on some circumstances since such injury cannot be quantified in monetary terms. In making, such award, the court could be swayed in considering same particular points or factors, which include the following: (i) The bodily pain, that is, whether the pains will be permanent so that the plaintiff will be with it for life. (ii) Status of the injured person, his occupation, profession or calling. (iii) Whether the injury is permanent or transient. (iv) Loss of earnings caused by the disability. (v) Length of time spent in receiving treatment before the wound healed. (vi) Loss of amenities for life. (vii) Age and expectations of life. The claimant then submitted that he has successfully proved his case against the defendants. He has strictly proved special and general damages against them and he strongly relies on the maxim res ipsa loquitur, and the cases of Iyere v. Bendel Feed & Flour Mills Ltd (supra) and Odulaja v. Haddad [1973] 11 SC 357. On the alleged issue that the claimant did not call the Medical Doctor for medical evaluation, the claimant contended that this does not create any lacuna or destroy his case. That the Court can infer from the exhibits tendered and the witness statement on oath adopted that the injury is still there that required surgical operation. That section 42(1) of the Evidence Act Cap. 112 LFN 1990 also protected the case of the claimant even when the Medical Doctor was not called. In the case of Adamu v. Kano NA [1956] 1 FSC 25, it was held that from the circumstances of the case, which left no doubt as to the cause of death, it was proper for the court to infer the cause of death even in the absence of medical evidence. That where, as in the instant case, the deceased died in circumstances which leave no doubt as to the cause of death, medical evidence can be dispensed with and the cause of death inferred by the court, citing Shell Pet. Dev. Co. (Nig.) Ltd v. Ikontia (supra). Regarding issue 2, the claimant contended that the Workmen’s Compensation Act Cap. W6 LFN 2004 has been repealed. That the current law in existence is the Employees’ Compensation Act 2010. That by section 7(1), (2), (3) and (4) the Employees’ Compensation Act 2010 – (1) Any employee, whether or not in a workplace, who suffers my disabling injury arising out of or in the course of employment shall be entitled to payment of compensation in accordance with this Act. (2) An employee is entitled to payment of compensation with respect to any accident sustained while on the way between the place of work and – (a) The employee’s principal or secondary residence; (b) The place where the employee usually takes meals, or (c) The place where he usually receives remuneration provided that the employer has prior notification of such place. (3) Where an injury disables an employee from earning full remuneration at the workplace, compensation shall be payable pursuant to this Act from the first working day following the day of the injury, except that only a healthcare benefit shall be payable in respect of the injury. (4) Where the injury or disease is caused by accident and the accident arose out of the employment, unless the contrary is shown, it shall be presumed that the injury occurred in the course of the employment. The claimant then submitted that when he was injured by the defendants and admitted at Lagos Clinics, he was treated for a while and was left to his fate to treat himself. He disagreed that the sum of N3,762,000 was spent on him, saying that it is an inflated sum of money. That the claimant was not properly treated; because if the defendants did, the injury that has rendered him incapacitated will not be there, and the claimant will not be seeking for any compensation to treat himself at Robertson Hospital and LUTH (Exhibits C1 – C5). The claimant referred the Court to National Oil & Chem. Mkt. Plc v. Adewusi [2008] 29 WRN 102 without indicating the principle of law it exemplifies. Furthermore, that the claimant was not paid any entitlement as alleged by the defendants. That the defendants have not established or proved the amount they claimed to have paid the claimant. That the amount they wrote in their written address is false, referring to Mobil Prod. (Nig.) Unltd v. Udo [2008] 36 WRN 62 and Harka Air Serv. (Nig.) Ltd v. Keazor [2011] 52 WRN 1 without once again indicating the principle of law they exemplify. Regarding issue 3, the claimant contended that the law is that a unilateral termination of contract does not terminate the contract of employment without notice to the other party. That the claimant was injured in the course of his work on 9th August 2008. When he recovered and went back to work, he was bluntly refused from entering into the 1st defendant’s premises and was prevented by the securities at the gate. That the claimant stated in his witness statement on oath at paragraph 7 that they prevented him from returning to work without any sack letter or termination of appointment. He testified under cross-examination that he was told “not to come to work again because he is not okay health-wise”. He referred the Court to Offoelo v. NEP Plc [2005] All FWLR (Pt. 285) 245, without yet again indicating the principle of law it exemplifies. The claimant continued that he said under cross-examination that he did not know Santana Security Agency Limited because he was not employed by the security company and was not told that the security company is a subsidiary of the 1st defendant company. That he was owed arrears of salary and he was refused payment for many years before the commencement of this trial. That he was not paid any severance package of N300,000 as discharge from the 1st defendant company. That when the defendant’s witness was cross-examined upon this, he could not give any convincing evidence. That Exhibit D6 tendered is a forged document and a fraud. To the claimant, the 1st defendant terminated his appointment without justification and no compensation was paid in respect of this. There was no notice prior to the termination. That the 1st defendant is aware that the incident occurred in the premises of the company and the claimant should be adequately compensated or be reinstated. That in the case of Mobil Prod. (Nig.) Unltd v. Udo (supra) Omokri, JCA held that – The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was as a result of the failure to give the requirement notice or as a result of an alleged malpractice. If the wrongful termination is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of the required notice. But if it is due to the latter then such a determination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damage far beyond his salary for the period of the requisite notice. The claimant concluded by urging the Court to uphold his argument and grant his claims. The defendants reacted by filing on 10th June 2013 an undated reply on points of law. On whether the claimant’s reply to the defendants’ statement of defence should have been accompanied by a witness statement on oath in order to form evidence before the Court, the defendants reiterated that the statement, not affirmed on oath, the pleading must be deemed abandoned, referring to Balogun v. UBA [1992] 6 NWLR (Pt. 247) 336. On whether there is a dispute as to the vicarious liability of the 1st defendant in respect of the injury sustained by the claimant, the defendants submitted that the claimant’s counsel misunderstood the application of section 3 of the Workmen’s Compensation Act, which has discarded with the need for the claimant to prove liability of the employer. The section provides that – Subject to subsection (2) of this section, if in an employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the provisions of this Act. That the issue of whether the 1st defendant is liable was not in dispute and it was on the basis of the liability that the claimant was treated and paid compensation by the 1st defendant. Therefore, that the case of Iyere v. Bendel Feed & Flour Mill Ltd (supra) cited by the claimant was of no moment. On the applicability of the law governing the claimant’s cause of action, the defendants submitted that a cause of action is governed by the applicable law in force at the time the cause of action accrued and not the law at the time the jurisdiction of the Court is invoked, citing Onuekwusi v. RTCMZC [2011] 6 NWLR (Pt. 1242) 341 at 361. That it is not in doubt that the cause of action arose on 9th August 2008 when the claimant was injured and was eventually discharged from hospital on 11th September 2009. Thereafter, he received compensation under the Workmen’s Compensation Act on 20th May 2010 before the advent of the Emplyee’s Compensation Act 2010 with its commencement date being 17th December 2010. To the defendants, it is trite that a statute should not be given retrospective operation unless there is perfectly clear language showing the intention of the parliament that is shall have retrospective application, citing KLM Royal Dutch Airlines v. Kumzhi [2004] 46 WRN 59 at 70 and Afolabi & ors v. Gov. Oyo State & ors [1985] 2 NSCC 1151 at 1153. That section 72(3) of the Emplyee’s Compensation Act 2010 conveys no such intention. Regarding the claimant’s failure to place before the Court relevant particulars to sustain his claim for special damages, the defendants contended that the cases cited by the claimant (Iyere, Shell Pet. Dev. Co. Nig Ltd, UBA, Odulaja and Taylor) all without exception bordered amongst other reliefs on special damages complained against the defendants. That in all the cases, particulars of special damages were pleaded and evidence led in support thereof. In fact, that medical reports were tendered in all, and in some instances medical doctors were called as witnesses. That in the instant case, special damages was not specifically pleaded and medical report, witness or evaluations were not presented, citing Iyere per Muhammad, JSC at page 184 and Odulaja at page 219. That none of the 5 cases cited by the claimant supports his case. In any event, that the claimant has not proved that the injury was caused by the personal negligence or wilful act of the defendants and having collected compensation under the Workmen’s Compensation Act, the claimant is estopped from claiming damages again, referring to sections 16(1) and 25(1)(c) of the Workmen’s Compensation Act 2004. The defendants continued that the case of Adamu v. Kano NA (supra) cited by the claimant is not also apposite as same is distinguishable from the instant case in the following material ways – a. Adamu was purely a criminal case. b. The issue of damages whether special or general was not an issue or contemplated in that case. c. The findings which the Federal Supreme Court upheld were based in accordance with Muslim Law. The defendants concluded by urging the Court to dismiss the claimant’s claim as he had been treated and compensated even more than required by the law. After a careful consideration of the processes and submissions of the parties, a remark or two regarding the submissions of counsel to the claimant may not be out of place here. In paragraph 4.8 of his written address, counsel to the claimant referred the Court to section 42(1) of the Evidence Act Cap. 112 LFN 1990. Counsel may wish to note that by section 257 of the Evidence Act 2011, the 1990 Evidence Act re-enacted as Cap. E14 LFN 2004 has been repealed. It is surprising that counsel to the claimant could in year 2013 be still referring to the 1990 Laws of the Federation of Nigeria in arguing a case for a client. Currency in the law is a vital part of advocacy of the legal practitioner. If counsel is dated in terms of knowledge of the law, how can such a counsel effectively stand for a client? And to think that counsel was hired for the very reason that he is schooled in the law. The statement of yore to the effect that God forbid that it should be thought that a lawyer must know all the law is met by an equal statement of yore to the effect that a lawyer is one who knows a little of everything and everything of a little; and even when either statement is taken literally, it is no licence for a lawyer to come to Court and argue a case on the basis of a repealed legislation. This should not be tolerated in the legal profession. Counsel to the claimant also exhibited a poor appreciation of the law in another sense. In paragraph 5.1 of his written address, counsel rightly stated that the Workmen’s Compensation Act Cap. W6 LFN 2004 has been repealed and replaced by the current law in existence, which is the Employees’ Compensation Act 2010. All is this is right. But when counsel relied on section 7(1) – (4) of the Employees’ Compensation Act 2010 in arguing the case of the claimant, he got it wrong. The accident complained of by the claimant occurred on 9th August 2008. Although the instant case was filed in this Court on 8th June 2012, according to the Supreme Court decision in Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 at 495, the law in force or existing at the time the cause of action arose is the law applicable for determining the case. The law as at 9th August 2008, when the claimant was injured, was the Workmen’s Compensation Act Cap. W6 LFN 2004. This is the law applicable to the present action, not the Employees’ Compensation Act 2010 as the claimant erroneously argued. Here, I agree with submission of the defendants in that regard. These remarks made, I now turn to the merit of the case. The case of the claimant relates to two issues: a claim for N10,000,000.00 for the negligence of the 2nd defendant in the course of his work with the 1st defendant; and secondly, a declaration that the arbitrary termination of the claimant’s employment in July 2010 by the 1st defendant is wrongful and so he should be reinstated. I shall take the second issue first. Regarding the claim for reinstatement, what needs to be ascertained first is whether the claimant’s employment was terminated to warrant him being reinstatement. There is no evidence before the Court that the claimant was issued with a letter of employment. The evidence before the Court is that the claimant “was issued with an Identity Card as a Staff of the Company” (see paragraph 4 of the claimant’s written statement on oath). DW under cross-examination acknowledged these facts in his testimony to the effect that when the claimant was employed as a security guard, the 1st defendant did not issue the claimant with any document, except the Identity Card. Then in paragraph 7 of the claimant’s written statement on oath the claimant averred that he “was unjustly sacked from my place of work without compensation”. Under cross-examination, the claimant as CW testified that the 1st defendant in July 2010 told him verbally not to come to work as he was not well. The exact date in July 2010 is not disclosed to the Court. He continued that “the company pushed me out” and “the security men asked me not to enter the company premises again”. To a question whether he knows “Santana Security Agency Ltd”, the claimant answered that “I do not know where it is”. Yet in paragraph 22 of the claimant’s reply to the defendants’ statement of defence dated and filed on 11th September 2012, the claimant pleaded that he actually went to Santana Security Agency Ltd. Secondly, still under cross-examination, the claimant testified and acknowledged that he was transferred to Santana Security Agency Ltd; and that he has been with Santana Security Agency since 2010 till date. The claimant then proceeded to testify that “Yes, as a security man, one should be fit and proper, up and doing, to be able to do and withstand the job”. He also testified that he is still not well and that a “person who is not well should not be employed as security man”. The testimony of DW under cross-examination is that there was a re-organisation in the 1st defendant company, which became necessary given the need to cut down staff strength. That about 100 security personnel were outsourced to Security outfits. The claimant went to Santana Security Ltd as an outsourced staff. That the outsourcing was verbal. From all of these facts, a number of conclusions can be arrived at. There is the issue of credibility of the claimant as CW. I indicated earlier that the claimant testified on oath that he does not know where Santana Security Agency Ltd is, yet he could plead that he actually went to Santana Security Agency Ltd. The claim of the claimant, therefore, that he was sacked and told not to come to the 1st defendant is not believable. I believe the testimony of DW that the claimant was outsourced to Santana Security Agency Ltd due to re-organisation, not that he was sacked from the 1st defendant. The direct testimony of the claimant under cross-examination to the effect that he was transferred to Santana Security Agency Ltd and that he has been with Santana Security Agency since 2010 till date, bears testimony to this conclusion; and I so find and hold. There is no evidence before the Court that the claimant objected to his being outsourced to Santana Security Agency Ltd. There is also the issue the defendant not issuing the claimant written particulars of the terms of employment, which is contrary to section 7 of the Labour Act Cap. L1 LFN 2004. There is also the issue of the defendants verbally outsourcing the claimant to Santana Security Agency Ltd i.e. without any written documentation. All of these acts amount to unfair labour practices. But because the claimant did not make an issue of them or claim any relief from them, there is nothing the Court can do about them. The conclusion, from the evidence before the Court, is that the claimant’s employment was not terminated; and so the question of reinstatement cannot arise. Relief 2 of the claimant calling for “A declaration that the arbitrary termination of the claimant’s employment in July 2010 by the 1st defendant is wrongful and should be reinstated” must, therefore, fail and is accordingly dismissed. I now turn to the issue of negligence. The evidence of DW under cross-examination is to the effect that on 9th August 2008, the claimant was hit by the third truck waiting to be off-loaded. The claimant was then rushed to the hospital for treatment. That the truck that hit the claimant and thus caused the accident was that driven by Mr. Samuel Eyiosa, the 2nd defendant in the instant case. DW acknowledged under cross-examination that it is part of the claimant’s job to take the numbers of the empty containers. The claimant described his job schedule as that of a Tally Clerk who records the plate numbers of trailers that enter into the 1st defendant company. From all of this, there is no dispute that a truck driven by the 2nd defendant hit the claimant and injured him necessitating his hospitalisation. There is no dispute that the 2nd defendant works with the 1st defendant as a driver (per paragraph 3 of the claimant’s written statement on oath). There is also no dispute that when the claimant was hit by the truck driven by the 2nd defendant, it was in the workplace of the 1st defendant, and the claimant was actually at work. This means that the accident arose out of and in the course of the employment of the claimant. In all of this, there is no disagreement between the parties. However, while the claimant concluded that the defendants are thereby negligent, pleading res ipsa loquitur in the process, the defendants deny that they were actually negligent in fact. Here, I agree with the claimant that the defendants were negligent in fact and he (the claimant) was injured in the process. Meanwhile Exhibits C4(a), C4(b) and C4(c) are pictures which depict the claimant as having health challenges, the extent of which are not discernible since no medical report/evidence was tendered before the Court by the claimant. The point of disagreement is that according to the defendants, the claimant has been fully paid off under the Workmen’s Compensation Act and so should have no claim against the defendants. In this wise, the testimony of DW under cross-examination is that the claimant was paid over N200,000 as workmen compensation after the deduction of the expenses incurred in treating the claimant. That the cost of treating the claimant amounted to N3,762,000, the adding of the medical bills in Exhibits D1(a) and D1(b) i.e. N1,989,000 + N1,773,000 respectively. DW went on that the sum of N3,968,675.81 was collected from Cornerstone Insurance Plc from which N3,762,000 was deducted. It is the balance of N206,675.81 that was then paid to the claimant as workmen compensation. To the claimant under cross-examination, DW had asked him to collect the sum of N206,675.81 and use it for medicine; and that he signed a document for it (Exhibit D3). Now, Exhibit D3 is a Bank Payment Posting Slip dated 20th May 2010 and states that Charles Nwaosa, as beneficiary collected the sum of N206,675.81 “[b]eing payment for claims on injury sustained by staff as per attached”. Whatever was attached to Exhibit D3 was not frontloaded along with Exhibit D3. Since the piece of evidence from the claimant was given under oath, the pleading by the claimant in paragraphs 11 and 13 of claimant’s reply to the defendants’ statement of defence to the effect that he (the claimant) did not know what the N206,675.81 was meant for go to no issue. In paragraph 19 of the claimant’s reply to the defendants’ statement of defence, the claimant pleaded by denying that he was paid N300,000 as severance package or any other sum for that matter. He denied signing any discharge form (Exhibit D6). There is, however, no evidence before the Court to prove any of these pleadings of the claimant. In that regard, I agree with the submission of the defendants that the claimant’s reply to the defendants’ statement of defence remains what it is, a mere pleading that must be substantiated by proof, whether oral or documentary; and because it is not so evidenced, it goes to no issue for the purposes of this judgment. This means that the documentary evidence of the defendants, despite the pleading of the claimant denying them, is actually uncontroverted. The argument of the claimant in paragraph 6.3 of his written address that Exhibit D6 “is a forged document and a fraud” is, therefore, an attempt by counsel to lead evidence during address. This is not permissible. The legal question that I must resolve, therefore, is whether the defendants are entitled to deduct medical expenses before paying over to the claimant the balance in terms of the workmen compensation as the defendants argued. As further argued by the defendants, the claimant is not entitled to double compensation. But before even answering this question, there is another: did the 1st defendant actually pay the medical bills as it claimed? Exhibits D1(a) and D19(b) are actually bills from Dr Amir Virani of Lagos Clinic. They do not evidence that the 1st defendant actually made those payments. This means that there is no evidence before the Court that the 1st defendant actually paid the sum of N3,762,000 made up of the N1,989,000 and N1,773,000 on Exhibits D1(a) and D1(b) respectively. Exhibit D2 is the cheque which actually shows that the sum of N3,968,675.81 is from Cornerstone Insurance Plc to the 1st defendant; but there is no evidence that any part of this sum was paid out to anybody. The claimant testified under cross-examination that he is not aware that the company spent N3,762,000. Though the claimant also testified under cross-examination that the company only paid the bills for Lagos Clinic, there is no documentary proof before the Court of this and how much it amounted to. I now turn to the question whether the defendants are entitled to deduct medical expenses before paying to the claimant the balance of the money received from the insurance company. The argument of the defendants is that the N3,968,675.81 received from Cornerstone Insurance Plc was the insurance cover regarding the injury sustained by the claimant. Of this sum, that N3,762,000, a combination of Exhibits D1(a) and D1(b), was then paid to Dr Amir Virani of Lagos Clinic in medical expenses (there is no actual evidence that this sum was paid as such), and the balance of N206,675.81 was then paid to the claimant per Exhibit D3. Since the claimant did not appropriately challenge this evidence of the defendants, I take the said evidence as given and shall act on it accordingly. Section 15(6) of the Workmen’s Compensation Act provides as follows – During the period of temporary total incapacity, the employer shall arrange to submit the workman for normal medical treatment by either the employer's medical practitioner or the workman's medical practitioner approved by the employer, at the expense of the employer, and such normal medical treatment shall include any specialist treatment which the employer may require the workman to undergo. Section 29 dealing with medical expenses then goes on to provide that – (1) The employer shall defray any reasonable expenses incurred by a workman within Nigeria or, with the approval of the Federal or State Chief Medical Officer (however designated) outside Nigeria, as a result of an accident arising out of and in the course of his employment in respect of – (a) medical, surgical and hospital treatment, skilled nursing services and supply of medicines and surgical dressings; (b) the supply, maintenance, repair and renewal of non-articulated artificial limbs and apparatus; and (c) travelling expenses incurred in the course of receiving medical treatment. (2) The court may, when determining any dispute in respect of compensation or upon application of any interested person, order the payment of any of the expenses referred to in subsection (1) of this section to the persons entitled to receive it. And by section 30 dealing with decisions of court in regard to treatment and medical reports – (1) All disputes as to the necessity for, or the character or sufficiency of, any medical aid provided under this Act shall be determined by the court. (2) Any decision of the court given under subsection (1) of this section shall be final. What I can deduce from these provisions of the Workmen’s Compensation Act Cap. W6 LFN 2004 is that nowhere is the employer permitted to deduct medical expenses before paying any balance to the claimant as compensation under the Act. If anything, the Act enjoins the employer to pay the medical expenses incurred by the employee. In any event, the case of Adetona v. Edet [2004] 16 NWLR (Pt. 899) 338 held that by section 40 of the Workmen’s Compensation Act enjoins every employer to insure every workman employed by him against injury or death arising out of or in the course of his employment. This is what the 1st defendant did and for which it received N3,968,675.81 received from Cornerstone Insurance Plc. This being the case, I hold that the defendants were wrong to have made the deductions they did and paying to the claimant only the sum of N206,675.81. The 1st defendant ought to have paid all of the sum of N3,968,675.81 received from Cornerstone Insurance Plc; and I so find and hold. This means that the claimant is hereby entitled to be paid by the defendants the sum of N3,762,000 deducted as medical expenses; and I so find and hold. In any case, Chaquary v. Yakubu [2006] 3 NWLR (Pt. 966) 138 decided that by section 25(1) of the Workmen’s Compensation Act, where the injury was caused by the personal negligence or wilful act of the employer or of some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a civil court independently of the Act. In all, and for the avoidance of doubt, the claimant’s claims against the defendants only partially succeeds in the following terms – 1. Relief 2, the claim for reinstatement, fails and is accordingly dismissed. 2. The claim for special and general damages succeeds partially and only in terms of the sum of N3,762,000 allegedly deducted as medical expenses by the 1st defendant. In this wise, it is hereby ordered that the defendants pay to the claimant this sum of N3,762,000 within 30 days of this judgment. 3. Cost of the action is put at N50,000 only payable by the defendants to the claimant. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip