Download PDF
The claimant had taken up a complaint against the defendants dated and filed on 12th September 2012 praying for the following reliefs – 1. A declaration that the 1st and 2nd defendants were negligent in the operation of their business and as such failed to take reasonable care for the safety of claimant which resulted in the injury of the claimant. 2. A declaration that the 1st defendant operates its business without safety standards and procedures. 3. A declaration that the abrupt prohibition of the claimant from gaining entry into the office complex of the 1st defendant by agents of the defendants under the instructions of the 2nd defendant amounts to wrongful dismissal. 4. An order of Court that the 1st and 2nd defendants should pay the claimant loss of immediate earnings at the sum of N15,708.00 from July 2011 till judgment is given. 5. An order of Court that the 1st and 2nd defendants should pay to claimant the sum of N71,212,500.00 being: a) N4,712,500.00 as special damages for loss of future earnings. b) N40,000,000.00 as general damages for pain, suffering, partial permanent incapacitation, loss of amenity, loss of future employment due to the negligence of defendants. c) 5,000,000.00 representing punitive damages for defendant’s negligence. d) N10,000,000.00 being general damages for wrongful termination of claimant’s employment. e) N10,000,000.00 being punitive damages for wrongful termination of claimant’s employment. f) N1,500,000.00 representing the cost for this action. 6. An order of Court directing the defendant to pay the sum of $9,000 (or its Naira equivalent) being cost for surgical and skin grafting operation at Artemis Hospital India where the claimant’s fingers/hands would be properly operated on. 7. An order of Court directing the defendants to provide adequate safety supervision and paraphernalia for it employee’s during working hours. Accompanying the complaint are the statement of facts, claimant’s written statement on oath, list of witnesses (later amended to have the claimant as the sole witness), list of documents and copies of the documents to be relied upon at the trial (Exhibits C1, C2(a) – (c), C3(a) – (m), C4, C5, C6(a) – (o), C7, C8 and C9(a) – (j)). In reaction, the defendants entered appearance and filed their joint statement of defence, witness depositions, a combined list of witnesses and list of documents, and copies of two sets of the documents to be relied upon at the trial. The two sets of documents are a bundle of petty cash receipts and cheques issued to the claimant by the defendant consisting of Exhibits D1A – D1Z, D1AA – D1ZZ and D1AAA – D1EEE, and the 1st defendant’s Industrial safety Manual, Exhibit D2. The defendants then raised a preliminary objection on two grounds – 1. That on the authority of the Supreme court decisions in the cases of DENR Limited v. Trans Int’l Bank Limited [2008] 18 NWLR (Pt. 1119) at 399 and Owners of MV Arabella v. NAIC [2008] 11 NWLR (Pt. 1097) 182, the complaint being an originating process meant to be served outside the jurisdiction of this Court was not endorsed with Notice to that effect, against the wordings and requirement of the provisions of sections 97 of the Sheriffs and Civil Process Act, a fortiori, the complaint is incompetent. 2. That the complaint allowed for the period of fourteen (14) days in the stead of a mandatory statutory thirty (30) days period required of the defendants outside jurisdiction to enter appearance in accordance with section 99 of the Sheriffs and Civil Process Act, a fortiori, this Court lacks the jurisdiction to entertain this suit. This Court noted that it has variously held that it is not contemplated under these provisions. The Court did not, therefore, see any reason for departing from that posture/reasoning. The Court, therefore, held that the defendants’ preliminary objection lacks merit and accordingly struck it out. The Court, however, held that it will give fuller reasons for striking out the preliminary objection when considering the merit of the case at the end of hearing. The matter accordingly proceeded to hearing. At the hearing of the matter, the claimant, Bright Chinedu Wodi of No. 7, Oloko Street, Oyingbo LGA of Rivers State, testified on his behalf as CW. The defendants had two witnesses. The 2nd defendant, Joseph Iwezue, who described himself as a Civil Engineer by profession and works in the 1st defendant company as the Managing Director (MD), testified for the defendants as DW1 while one Wisdom Ohwofosa, of No. 21, School Road, Okujagu Village, Trans Amadi, Port Harcourt and who described himself as the Factory Manager at Differential Aluminium and Steel Co. Ltd., the 1st defendant, testified for the defendants as DW2. During the cross-examination of the DW2, DW2 was asked to read para. 1(b) of Exhibit D2 but could not. He said he does not know how to read. DW2 was then asked how he was able to write, read and sign his sworn deposition. He answered that it was read to him. A look at the sworn deposition, however, indicates that there is no illiterate jurat endorsed on it. At this junction, the Court asked DW2 to sign a blank sheet of paper with “Top†written and underlined (Exhibit D3). DW2 signed at three different points with the fourth cancelled. All these signatures were found not only not to be similar with one another, but they all differ from the signature on the witness supposed deposition on oath of 6th November 2012. Given all of these anomalies, the Court found and held that there is very serious doubt regarding the credibility of the witness and his testimony. For that reason, the sworn deposition of DW2 and the evidence elicited during the cross-examination was found doubtful and so was discountenanced for purposes of this suit. Parties were then asked to file and serve written addresses as per Order 19 Rule 13 starting with the defendants. While the defendants refused to file their written address, the claimant did. The case of the claimant is that in October of 2009 he was employed on expressed terms by the 1st defendant to work as a machine operator on a cumulative annual salary of N188,500.00 vide a letter of appointment as issued by the 1st defendant and signed by the 2nd defendant (Exhibit C1). That in the morning of 19th December 2009, he received a phone call from the 2nd defendant requesting him to proceed immediately to the 1st defendant’s place of business to resume duties to enable the 1st defendant meet up with urgent supply of roofing sheets to certain clients. The claimant subtly declined the request telling the 2nd defendant that he was indeed sorry as he would not be able to make it being that it was not a working day for him and more chiefly it offends his religious beliefs to work on Saturday. The 2nd defendant consistently pressurized the claimant via telephone to come to work explaining that the 1st defendant was under pressure to meet up the supply demands of its clients. That the 2nd defendant further stated that the claimant would lose his job if he did not show up. The claimant on the said 19th December 2009, for fear of losing his job, showed up at the 1st defendant’s place of business as requested by the 2nd defendant. On arrival he was instructed to proceed to the factory wherein he was asked to feed aluminium span sheet into an aluminium long span fabricating machine. As the claimant fed the fabricating machine with long span sheet the machine started malfunctioning and the long span sheet fed into it was shifting sideways instead of going in straight like it was suppose to. The claimant was then instructed by the factory supervisor at the material time (Mr. Kenneth whose surname is unknown) to manually realign the long span sheet while feeding it into the machine. At the claimant’s first attempt to manually realign and feed the long span sheet into the machine as instructed by the factory supervisor, the claimant’s left hand alongside the long span sheet were forcefully pulled in by the malfunctioning machine wherein the claimant’s left hand was severely and immediately damaged as the machine severed some part of his palm and fingers. The claimant was immediately rushed to a free medical clinic for accident and gunshot victims called Teme Clinic (Medicines Sans Frontiers) in Diobu area of Port Harcourt, Rivers State by the factory supervisor (Mr. Kenneth) and colleagues. While at Teme Clinic (Medecins Sans Frontiers) an x-ray was carried out to ascertain the damage done to the claimant’s left hand which confirmed the loss of some left finger bones including the thumb. The claimant received prompt medical care and underwent different surgical operations free of charge wherein flesh was removed from his waist, thigh and his left arm to cover up the severed left thumb and fingers. After the operations and during the claimant’s stay at the clinic his left hand was sown together to his waist in other to keep it stable. The claimant spent a total of one month and three (3) days under excruciating and severe pains at Teme Clinic. The x-rays, medical reports/notes, appointment receipts and still pictures were tendered and admitted as Exhibits C2(a) – (c); C3(a) – (m); C9(a) – (i) respectively. The claimant went on that after surgery at Teme Clinic (Medicines Sans Frontiers) he needed further surgery at the University of Port Harcourt Teaching Hospital (UPTH) so as to separate his fingers which had glued together. The claimant upon resumption of duty at the 1st defendant company approached the defendants for the sum of Two Hundred Thousand Naira (N200,000) only to enable him undergo the operation but the defendants refused but rather gave him the sum of Sixty Thousand Naira stating that surgical operation carried out at the University of Port Harcourt Teaching Hospital (UPTH) was cheap and being a Federal Government hospital could not be up to Two Hundred Thousand Naira (N200,00). The claimant’s solicitor under his instruction via a letter to the defendants dated 20/07/2011 demanded that compensation be paid and adequate care be given to claimant but the defendants via their solicitor’s letter dated 27/07/2011 declined to compensate claimant. The claimant’s and defendants’ solicitors’ letters were tendered and admitted as Exhibits C4 and C5 respectively. After the receipt of claimant’s solicitor’s letter, the defendants instructed their security officers not to allow the claimant access into the company yard anymore as he was no longer an employee of the defendants; and the claimant was refused entry into the defendant company yard by the security officers. That this fact during cross-examination was admitted by DW2. That notwithstanding the defendants’ refusal to fully assist the claimant financially towards the surgical operation to separate his fingers, the claimant underwent a surgical operation at UPTH with partial success which cost him over Two Hundred Thousand Naira (N200,000.00) and the claimant still needs to undergo further surgical operation though his left hand and fingers are not expected to function normally even after further surgery. Further surgery to be carried out on claimant’s fingers was referred to Artemis hospital India. The bundle of UPTH branch of sterling bank deposit slips and prescription form deposit slips, medical report from UPTH dated 23/07/2012 and Artemis Hospital cost and surgery analysis were tendered and admitted as Exhibits C6(a) – (o), C7 and C8 respectively. The case of the defendant on the other hand going by the sworn deposition of DW1 is that the accident which occurred on the 19/12/2009 which incapacitated the claimant’s fingers and hand was due to the claimant’s professional recklessness, negligence and non-adherence to the safety policies of the defendants. That the claimant is not required to gain access into the factory without duly complying with the basic safety rules of the 1st defendant which include but is not limited to wearing of safety boots, hand gloves and other protective wears. That the claimant had a penchant for not wearing his safety shoes and hand gloves before entering the factory; and on the fateful day, the claimant entered the factory without wearing these basic safety wears. The claimant framed 7 issues for the determination of the Court, namely – 1. Whether the non-filing of a reply to the statement of defence by the claimant amounts to an admission of the facts contained in the statement of defence. 2. Whether the defendants owe a duty to the claimant. 3. Whether the defendants in the circumstance of the facts of this case were negligent and as such breached the duty owed to the claimant. 4. Whether the claimant suffered any injury as a result of the defendants’ breach of the duty owed to the claimant. 5. Whether the prohibition of the claimant from gaining entry into the defendants’ company yard under the instruction of the defendants amount to wrongful termination of employment. 6. Whether the claimant has successfully proven his case against the defendants. 7. Whether the claimant is entitled to his claims and reliefs against the defendants. Regarding issue 1, the claimant contended that the non-filing of a reply by a claimant to a statement of defence does not amount to an admission of the facts contained therein because parties to an action are deemed to have joined issues immediately pleadings are exchanged and it is not necessary to file a reply if the only purpose will be to merely deny facts contained therein. That the Supreme Court in Unity Bank Plc v. Bouari [2008] 7 NWLR (Pt. 1086) 372 at 406 – 407 D – A per Ogbuagu JSC, while explaining the function of a reply and when unnecessary to file same, stated as follows – The proper function of a reply is to raise in answer to the defence any matter that must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raises issue of fact not arising out of the defence. In other words, a reply is used by a plaintiff to answer new issues raised in the statement of defence such as in cases of confession and avoidance. It is therefore not necessary to file a reply if its only purpose is to deny the allegations of fact made in the statement of defence because of the principle of joinder of issues. Where no counterclaim is filed, a reply is generally unnecessary if it is also to deny allegations in the statement of defence. Furthermore, that after the completion of pleadings, issue is or issues are said to be joined and the cause is ready for hearing. Such a joinder of an issue operates as a denial of every allegation of fact in the pleadings upon which the issue has been joined. In fact, that if no reply is filed, all material facts alleged in the statement of defence are put in issue. Thus a reply to merely join issues is not possible, citing Akeredolu v. Akinremi (No. 3) [1989] 3 NWLR (Pt. 108) 164; Dabup v. Kolo [1993] 9 NWLR (Pt. 317) 254; Umenyi v. Ezeobi [1990] 3 NWLR (Pt. 140) 621; and Obot v. CBN [1993] 8 NWLR (Pt. 310) 140. The claimant then submitted that this Court, in line with the authorities cited, should hold in the affirmative that in the circumstances of the facts and processes filed in this case, the non-filling of a reply by the claimant to the statement of defence does not in any way amount to an admission of the facts contained in the said statement of claim but a denial of every fact contained therein. Regarding issue 2 i.e. whether the defendants owe a duty to the claimant, the claimant contended that wherever an employer and employee relationship exists, whether express or implied, and if it is express, whether oral or in writing, the employer owes certain duties to the employee. These duties may be expressly provided for in the terms of the contract of employment or implied into the terms, even though not expressly stated. That an in-depth look at Exhibit C1 (the claimant’s offer of appointment letter) reveals the absence of the duties which the defendants (employer) owe to the claimant (employee) and as such the defendants’ duties will be implied into it. That the defendants, as employers, indeed owe a duty to the claimant as their employee; the duty which the defendants owe to the claimant is in two (2) folds, namely: (a) common law duty and (b) statutory duty. When either of these duties is breached by the employer and the employee sustains any injury in the course of his employment as a result of such breach, the employer is liable to compensate (by way of damages) the injured employee. On the common law duty, the claimant referred to Wilsons and Clyde Coal Co Ltd v. English [1937] 3 All ER 628; [1938] AC 57, where an employee brought an action against his employer in respect of personal injuries suffered as a result of an allegedly unsafe system of work. The House of Lords, while holding that the plaintiff can recover damages from his employers, stated through Lord Wright as follows – The obligation is fulfilled by the exercise of due care and skill. But it is not fulfilled by entrusting its fulfilment to employees, even though selected with due care and skill the obligation is three folds, the provision of competent staff of men; adequate materials; a proper system and effective supervision. I think the whole course of authority constantly recognises a duty which rest on the employer to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or a company and whether or not the employer takes any share in the conduct of the operations. To the claimant, flowing from the above the common law duty of an employer to an employee is the provision of the following: competent staff of men; safe and suitable place and tools of work; and proper system and effective supervision of work. As regards provision of competent staff, the claimant contended that employers as in the case of the defendants are under an obligation to ensure that the people they employ are reasonably competent. That the law requires that in doing so, an employer must act reasonably by ensuring that the worker employed is not only proficient but is given adequate instructions as may be necessary to off-set the employee’s lack of experience or deficiency of maturity, citing General Cleaning Contractors Ltd v. Christmas [1952] 2 All ER 1110; [1953] A.C 180, where Lord Reid stated as follows – Where practice of ignoring an obvious danger has grown up, it is not reasonable to expect an individual workman to take initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implement that may be required. And in Western Nigeria Trading Coy Ltd v. Busari Ajao [1965] NMLR 178, the Court held, inter alia, that it was the employer’s duty at common law not to only to supply Personal Protective Equipment (PPE) but to also ensure that they are used by strict orders and effective supervision. As for the second limb of the employer’s duty, which is to supply proper tools and maintain good premises, that the rule is that where an employer has knowledge of the dangerous character of a plant or fails to provide safe premise and tools for work, such an employer will be liable to an employee who suffers any injury thereof, citing General Cleaning Contractors Ltd v. Christmas (supra), where it was held in the words the House of Lords that where an employer leaves it to the individual workmen to take precautions against an obvious danger, the employers had failed to discharge their duty to provide reasonable safe system of work. Furthermore, Lord Oaskey stated: In my opinion, it is the duty of an employer to give such general safety instructions as a reasonable careful employer who has considered the problem presented by the work would give to his workmen...the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experience and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers, their duties are not performed in the calm atmosphere of a board room with the advice of experts. They have to make decisions on narrow window sills and other places of danger and in circumstances in which dangers are obscured by repetition. The third duty enjoins that it is not enough to provide efficient staff and good tools or plant; if the administrative system does not satisfy the conditions of reasonability then the employer will still be liable because he owes a duty to employees to provide safe system of work, this requirement and the two (2) already considered above are all set down in the locus classicus of Wilsons and Clyde Coal Co Ltd v. English (supra) wherein the House of Lords held, inter alia, that the duty as to a safe system of work is a common duty of care which the employer owes personally to the employee. The employer cannot delegate the duty in such a way as to absolve him from personal liability. As for statutory duty, the claimant submitted that the statutory duties which the defendants as employers owe the claimant as employee are embodied in the sections 15(1), 17(1) and 23 of the Factories Act Cap. F1 LFN 2004. That in Green Pack Rubber Ind. Ltd v. Ossai [2004] 2 FWLR (Pt. 194) 668, it was held that – a) Section 17(1) of the Factories Act 1990 imposes an obligation for a company to securely fence every dangerous part of any machinery to secure the safety of every person employed or working on the premises or a device should be provided that will protect the operator or the person from coming into contact with dangerous parts of the machine. b) The obligation on a company to fence every dangerous part of machinery is an absolute one and the duty is owed not only to the actual operator but to all persons who are employed or working in the premises. Hence if dangerous machinery cannot be fenced securely, it cannot be lawfully used at all. c) The obligation on a company to fence every dangerous part of machinery is imposed in order to guard against contact with any dangerous part of the machinery. The fence is intended to keep the worker out and not keep the machine or its product in. d) By virtue of section 23 of the Factories Act, no person should be employed at any machine or in any process being a machine or process liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed; and he has received a sufficient training to work at the machine or in the process; or he is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process. The claimant then urged the Court to hold in the affirmative that the defendants as employers owe to the claimant both the common law and statutory duty as stated above in line with the principles as expounded in the case law and statute above. On issue 3 i.e. whether the defendants in the circumstance of the facts of this case were negligent and as such breached the duty owed to the claimant, the claimant first referred to Kalgo and Ogbuagu, JJSC who in UTB (Nig) v. Ozoemena [2007] 3 NWLR (Pt. 1022) 448 at 464 – 465 H – A and 487 F – G defined negligence as follows – Negligence means lack of proper care and attention; careless behaviour or conduct; a state of mind, which is opposed to intention; the breach of a duty of care imposed by common law and statute resulting in damage to the complainant. To the claimant, issue 3 is, therefore, answered in the affirmative in view of the latter part of the above definition of negligence, including case law, statutory provisions and legal principles already cited while examining the employer’s common law and statutory duties under issue 2 and particularly given the facts as contained in paragraphs 6 and 17 of the claimant’s statement of facts and testimony on oath as adopted on 21/01/2012 and which is reproduced as follows – 1st and 2nd defendants were negligent and in breach of their duty of care to provide safe work environment and safe work system and safe plants and equipments for claimant to work in, when: i) The claimant was demanded to come to work on a day which he ordinarily does not work due to his religious faith to feed aluminium span sheet into a malfunctioning long span fabricating machine which was entirely outside the scope of his employment. ii) Safety protective lining/fence was not provided around the long span fabricating machine which would have prevented the claimant’s left hand from going into the machine; safety paraphernalia and apparels are seldom made available for use and when they are made available they are substandard and over used. iii) They failed to consistently service or update the long span fabricating machine. iv) They failed to make sure that the supervisor/safety officer is present at all times in the factory. v) They failed to give claimant adequate and proper safety supervision when the factory supervisor instructed claimant to manually feed the long span roofing sheet into a malfunctioning machine. vi) 1st and 2nd defendants fail to institute standard safety regulations in the course of their workers every day work. vii) They failed in all circumstances to take reasonable care for the safety of the claimant. The claimant went on that in further answer to issue 3, and assuming but not conceding to the defendants’ paragraph 5 of the statement of defence particularly sub-paragraphs (g), (h) and (i), and paragraphs 14, 15 and 16 of DW1’s statement on oath respectively, that the defendants in the aforementioned paragraphs voluntarily have admitted that they were negligent and in total breach of the common law and statutory duty which they owe to the claimant. That in Western Nigeria Trading Coy Ltd v. Busari Ajao (supra), the Court held, inter alia, that it was the employer’s duty at common law not only to supply Personal Protective Equipment (PPE) but to also ensure that they are used by strict orders and effective supervision. That flowing from the contents of the paragraphs just cited, it can now be undoubtedly ascertained that the defendants were never in the habit of enforcing the use of PPE in their factory and as such are in breach of the duty owed by an employer to an employee. The claimant then referred to IITA v. Amrani [1994] 3 NWLR (Pt. 332) 296, where the Court stated that in considering whether the place of work is safe or not to make the master liable for negligence regard must be had to the nature of the place of work. That the defendants’ paragraph 5(h) of the statement of defence and paragraph 15 of DW1’s deposition on oath provides as follows – Like in every production company, oil normally spills from the production machines in the production process making the floor slippery and necessitating workers (like claimant) entering such factories to wears safety shoes. That by the above statement the defendants admit that oil normally spills from their machine onto the floor thereby making the factory floor slippery. A marriage of the above statement as contained in paragraph 5(h) of the statement of defence, paragraph 15 of DW1’s deposition and a look at Exhibit D2 clause 1(a) and (b) titled “Accident Investigation and Reportingâ€, clause 2(1)(a), (2) and (3) titled “Anatomy of Accident†and House Keeping reveals that the defendants are negligent and operate an unsafe factory and as such are in breach of the duty to provide a safe system of work for their employees, the claimant inclusive. Furthermore, that the defendants’ paragraph 5(i) of the statement of defence and paragraph 16 of DW1’s deposition on oath provides as follows – That because the claimant was not wearing safety shoes on that day as was provided him by 1st defendant and as he is compulsorily required to do, the claimant slipped, while trying walking around and in falling down, he held onto the machine unfortunately thereby sustaining the injuries complained of in the process. That the above statement as contained in the statement of defence is an admission by defendants that the machine which incapacitated the claimant’s fingers and hands was not fenced in accordance with sections 15(1) and 17(1) of the Factories Act because if the machine was securely fenced, the fence would have precluded the claimant from getting in contact with the machine and the claimant would not have been injured. The claimant then cited Professor Chioma Kanu Agomo in her book, Nigerian Employment and Labour Relations and Practice (2011) at pages 223 – 224, where she states – In relation to prime movers and transmission machinery, fencing is intended to provide safeguard against persons coming in contact with the machinery and not against the risk of parts flying out. The same applies to other dangerous parts. Therefore, where there is a danger of injury by contact, the fence is not secure unless it precludes contact. Also that the statements as contained in paragraph 5(i) of statement of defence and paragraph 16 of DW1’s depositions on oath when juxtaposed with General Cleaning Contractors Ltd v. Christmas (supra) reveals the defendants’ voluntary admission to being negligent and not having a safe system of work in their factory. The claimant went on that it is evident from the facts, as enumerated above when juxtaposed to the case law, statutory provisions and legal principles as cited in issue 2, that it is undoubtedly clear that the defendants as employers were grossly negligent in carrying out both the common law and statutory duties owed to the claimant as their employee and as such were fundamentally in breached of the duty or duties owed to the claimant as an employee. It is the submission of the claimant that this Court should in line with the statutory provision of the Factories Act and case law principles as encapsulated in the common law and statutory duties as stated in issue 2 above hold that the defendants were negligent and as such breached the duty owed to claimant. Regarding issue 4 i.e. whether the claimant suffered any injury as a result of the defendants’ negligence and breach of the duty owed to the claimant, the claimant contended that both the claimant and the defendants are in agreement by virtue of their pleadings and evidence “that the defendants suffered injuries from the industrial accident†and that it was a machine in the defendants factory that incapacitated the claimant’s fingers and hands on 19/12/2009. The only point of disagreement between the parties is how the accident occurred. The claimant in paragraph 6 of his statement of facts and statement on oath stated how the accident occurred, while the defendants in paragraph 5(g), ( h) and (i) of the statement of defence and paragraphs 14, 15 and 16 of DW1’s deposition on oath stated therein their own version of how the accident occurred. The claimant continued that as stated in issue 3 and the authorities cited therein, the defendants’ paragraph 5(g), (h) and (i) of the statement of defence and paragraphs 14, 15 and 16 of DW1’s deposition on oath are admission by the defendants that they were negligent in running their factory and in breach of the duty owed to the claimant (whether common law or statutory) which is irrefutable proof to the fact that the claimant’s injury was as a result of the defendants’ negligence and breach of duty. That whatever the set of facts advanced by both parties on how the industrial accident occurred on 19/12/2009, one undoubtedly clear fact is that the injury sustained by the claimant was as a result of the defendants’ negligence and breach of the duty owed to claimant for the following reasons – i) If the machine was fenced as provided in sections 15(1) and 17(1) of the Factories Act 1990, the claimant would not have sustained any injuries, referring to Exhibit D2, clause l (b)(1). ii) Contrary to paragraph 5(h) of the statement of defence, if the floor of the factory was kept clean and free from the oils which spilled out of the machine, the floor would not have been slippery, and the claimant would not have slipped in the first place let alone try to hold an unfenced/unguarded machine which eventually injured him, referring to Exhibit D2, clause l(b)(3). iii) If the defendants through the production supervisor as alleged in paragraph 5(g) of the statement of defence had insisted and ensured that the claimant wore the said safety shoes, the claimant would not have slipped and sustained the injury, citing Western Nigeria Trading Coy Ltd v. Busari Ajao [1965] NMLR 178, where it was held, inter alia, that it was the employer’s duty at common law not only to supply Personal Protective Equipment (PPE) but to also ensure that they are used by strict orders and effective supervision. The claimant then enjoined the Court to look at Exhibit D2, clause 2(1)(a), (2) and (4) in relation to the facts of this case so as to clearly see and hold that the injury of the claimant was sustained as a result of the defendants’ negligence and breach of duty or duties owed to the claimant as his employers. On issue 5 i.e. whether the refusal by the security men to grant the claimant entry into the defendants’ company yard under the instruction of the defendants amount to wrongful termination of employment, the claimant contended that it is trite law that an employer can only terminate an employee’s employment in accordance with the procedure of termination as contained in the employment contract. That the procedure for the termination of the claimant’s employment is expressly stated in Exhibit C1 (the claimant’s letter of employment). The claimant in paragraphs 11 and 12 of the statement of facts and paragraph 11 of his statement on oath stated that immediately after the defendants received Exhibit C4 (the claimant’s solicitor’s letter dated 20/07/2011) the security guards at the defendants’ company yard under the instructions of the defendants refused him entry into the company yard till date. The defendants in paragraph 11 of the statement of defence put the claimant to the strictest proof of the facts as contained in paragraphs 11 and 12 of the statement of facts, and in proof of the said facts the claimant referred the Court to the last paragraph of Exhibit C5 (the defendants’ solicitor’s letter dated 27/07/2011) reproduced here under as follows – We hold it in your favour that being properly seized of the facts and circumstances as narrated above, you would properly advise your client on the need to remain loyal and go permanently on his knees in supplication for the continuance and sustenance of our client’s goodwill towards him and this will definitely not be should your client persevere on this irksome path of ungratefulness. To the claimant, flowing from the above, it obvious from the content and tone of the last paragraph of Exhibit C5, that because the claimant continued to pursue his right to be compensated the defendants withdrew their goodwill by instructing their security guards never to allow the claimant enter the defendants’ company yard to continue in his duties, thereby summarily terminating his employment contrary to the provisions for the termination of the claimant’s employment as contained in Exhibit C1. Finally, it is the submission of the claimant that the refusal by the security men to grant him entry into the defendants’ company yard to resume his duties under the instruction of the defendants amounts to summary dismissal and as such wrongful termination of the claimant’s employment as it does not conform with the procedure for the termination of the claimant’s employment, urging the Court to hold so. Regarding issue 6 i.e. whether the claimant has successfully proven his case against the defendants, the claimant contended that this issue is answered in the affirmative because on 25/02/2013 during the cross-examination of DW1, the defence counsel was unable to contradict/controvert or successfully challenge CW1’s statement on oath and documentary evidence as adopted on 21/01/2013. That it is trite law that where evidence which is admissible and relevant to the fact in issue is not successfully contradicted/challenged or controverted such evidence will be accepted as proof of the facts that it seeks to establish, citing American Cyanamid v. Vitality Pharm. Ltd [1991] 2 NWLR (Pt. 171) 15 at 28 – 30, Nanna v. Nanna [2006] 3 NWLR (Pt. 966) 1, USN v. Fajebe Foods Ltd [1998] 6 NWLR (Pt. 554) 380, Morah v. Okwuayanga [1990] 1 NWLR (Pt. 125) 225 and USA v. Achoru [1990] 6 NWLR (Pt. 156) 254. Furthermore, that DW1 during cross-examination on 25/02/2013 contrary to paragraph 5(e), (f), (g), (i) and (j) of the defendants’ statement of defence and paragraphs 10, 11, 12, 14, 16 and 17 of DW1’s deposition oath stated that he was not physically present at the factory when the accident which incapacitated the claimant’s fingers and hands occurred on 19/12/2003 and that all that is contained in his witness deposition on oath was told to him by his employees when he arrived at the factory. This statement as elicited from DW1 contradicts the statement of events as contained in the statement of defence and witness statement on oath respectively regarding the events which led to the industrial accident that incapacitated the claimant’s hands on 19/12/2009. That Nweze, JCA in Olatunsosun v. State [2011] All FWLR (Pt. 555) 304 at 344 CA, while describing the word ‘contradiction’ in respect of evidence before the Court, stated inter alia – …testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That is why the law takes a view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses...This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called to do [so] at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes.... To the claimant, the courts have been enjoined to treat such identical accounts of incidents by witnesses with suspicion. That a look at the contents of the statement on oath of DW1 and DW2 reveals that they are materially the same. That it is trite law that where a witness gives oral evidence which contradicts his or her previous statement in writing, that evidence should be treated as unreliable and liable to be rejected, referring to FRN v. Nweka [2011] LPELR – 9350 (SC), Gabriel v. State [1989] 5 NWLR (Pt. 122) 475 and Ogoala v. The State [1991] 2 NWLR (Pt. 175) 509 at 534. The claimant went on that another contradiction in the statement of defence is exposed with a comparison of the cumulative amount in Exhibits D1A – Z; Exhibits D1AA – ZZ and Exhibits D1AAA – EEE to the amount as stated in paragraph 5(n) of the statement of defence, paragraph 21 of DW1’s statement on oath and paragraph 5(xiv) of DW2’s statement on oath respectively. On the importance of documentary evidence as the yardstick for testing the veracity of oral testimony, the claimant referred the Court to Ogbeide v. Osifo [2007] 3 NWLR (Pt. 1022) 423, Fashanu v. Adekoya [1974] 1 All NLR (Pt. 1) 35 and Kimdely v. Mil. Gov. of Gongola State [1988] 2 NWLR (Pt. 77) 475. To the claimant, the statements as made in paragraph 5(n) of the statement of defence, paragraph 21 of DW1’s statement on oath and paragraph 5(xiv) of DW2’s statement on oath respectively is not only contradictory but also not credible, in view of which this Court should reject them. The claimant continued that a testimony will be hearsay where the person making the statement is not the person who saw, heard, perceived it or gave it as his personal but as what was said to him by another person, citing Obinwunne v. Tabansi-Okoye [2006] 8 NWLR (Pt. 981) at 1004. That given the established fact that DW1 and DW2 were not present at the scene or the time when the accident occurred as elicited during cross-examination, DW1 and DW2’s statement of the events which led to the industrial accident on 19/12/2009 wherein the claimant was injured is hearsay and the law is trite that hearsay evidence is not admissible, referring to section 126 of the Evidence Act 2011. That it is trite that civil cases are decided on the preponderance of evidence and unless a plaintiff’s case is so patently incredible and unreasonable a trial court is bound to carefully consider the competing evidence of the parties to determine in whose favour the evidence preponderates, citing Wachukwu v. Owunwanne [2011] 14 NWLR (Pt. 1266) 1 at 36 – 37 G – C and Odofin & ors v. Mogaji & ors [1978] NSCC 275 at 277. It is, therefore, the submission of the claimant that the evidence as adduced by the claimant in proof of his claims remains unchallenged, urging the Court to hold so and act positively on the said evidence. Also, that this court should reject the evidence of the defendants for being contradictory, hearsay and not relevant to the fact in issue. Finally, that this Court should find in the affirmative that the claimant has discharged the onus of proof required in proof of his case based on all documents tendered and the facts as stated in his evidence, being that all that is required of him is minimal proof in such a circumstance as in the instant case were the defendants were unable to contradict, controvert or successfully challenge the claimant’s evidence in this proceeding. On issue 7 i.e. whether the claimant is entitled to his claims and reliefs against the defendants, the claimant answered in the affirmative. The claimant then referred the Court to Obere v. Board of Management, Eku Baptist Hospital [1978] 6 – 7 S.C; [1978] NSCC 327 and Eseigbe v. Agholor [1993] NWLR (Pt. 316); (1993) 12 SCNJ 82, which held that matters for consideration in the assessment of general damages in personal injury cases include – (i) The bodily pain and suffering that the plaintiff underwent and that which may occur in the future; (ii) Whether or not such a plaintiff sustained permanent disability or disfigurement; (iii) The loss of earnings caused by any such disability or disfigurement as aforesaid; (iv) The length of time the plaintiff spent in the hospital receiving treatment; (v) The loss of amenities of life, if any; and (vi) The age, status and expectation of life of the plaintiff. To the claimant, it is trite that when in an employee’s employment a contract of employment exists and the employment is not terminated in accordance to the terms of the contract of employment, the employee can recover damages for wrongful termination of employment, citing Olanrewaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691. The claimant then submitted that he has established his case against the defendants and is entitled to all his claims and relief sought, urging the Court to so hold. The claimant summarised the points he made as follows – 1. That the non-filling of a reply by claimant to the defendants’ statement of defence does not amount to an admission of the facts contained in the statement of defence. 2. That the defendants as employers of the claimant at the time the accident occurred or at any time thereof owed the claimant a duty of care imposed on them by common law and statute. 3. That the defendants were negligent in the operation of their factory and as such breached the common law and statutory duties owed to the claimant. 4. That the injury suffered by claimant owing to an industrial accident on the 19/12/2009 which decapitated his left hand and fingers was due to the defendants’ negligence and breach of the common law and statutory duties owed claimant. 5. That the refusal by the security guards at the defendants’ company to grant the claimant access into the company yard to resume his duties based on the instructions of the defendants amounts to summary dismissal and as such wrongful termination of the claimant’s employment. 6. That the claimant has proven his case against the defendant because the defendants during cross-examination were unable to contradict, controvert or successfully challenge the evidence as adduced by the claimant in proof of his case and as such the Court is enjoined in law to accept such uncontroverted evidence as proof of the claimant’s case. 7. During cross-examination of DW1 on 25/02/2013 and DW2 on 30/05/2013 respectively, statements were elicited and documents tendered in evidence which contradicted the defendants’ witnesses’ earlier statements on oath and the statement of defence. 8. That the claimant is entitled to all his claims and reliefs as sought. Given the evidence as adduced by both parties, the claimant has with preponderance of evidence proven his case, notwithstanding the fact that he needed only minimal proof given the nature of the defendants’ evidence and the circumstances of the proceedings. In conclusion, the claimant urged the Court decide the case in his favour and grant the reliefs he claims. I heard learned counsel in the matter and considered all the processes and submissions advanced. As I indicated earlier, the defendants did not file any written address. In fact by Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007, the defendants ought to have filed their written address before the claimant. It was because they did not file any that the claimant went on to file his. Even at this, the defendants did not react to the claimant’s written address. This, however, does not mean that the claimant is entitled to an automatic judgment. The claimant is not accordingly absolved from the minimal evidential rule, which is to the effect that a plaintiff cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence or filed a written address before the trial court as held in Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69 and Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247. See also the decisions of this Court in AG, Osun State v. NLC (Osun State Council) & 2 ors unreported Suit No. NICN/LA/275/2012 the judgment of which was delivered on December 19, 2012 and Mr. Joel Adewumi v. Bureau of Public Enterprises (BPE) & 2 ors unreported Suit No. NICN/IB/18/2012 the judgment of which was delivered on December 16, 2013. Before going into the merit of the case, I need to give the fuller reasons why the preliminary objection of the defendants was struck out by the Court. The defendants had objected to this case on the basis of sections 97 and 99 of the Sheriffs and Civil Process Act. Sections 97 and 99 come under Part VII of the Sheriffs and Civil Process Act. Section 95 is the interpretation section of Part VII and it defines “court†to mean a court to which Parts III, IV, V, and VI apply. It is Part III that, however, defines “court†for purposes of Parts III, IV, V and VI. Section 19 is the applicable interpretation section under Part III, and provides that – In this Part and Parts IV, V and VI, unless the context otherwise requires – “court†includes the High Court of the Federal Capital Territory Abuja or of the State; “judge†means a judge of the High Court. Section 2 is the interpretation section for Part II and it defines “court†to include a High Court and a magistrate’s court. In all of these definitions of the word “courtâ€, nowhere would the NIC be found to be included. I indicated earlier that this Court had previously held that it is not contemplated under these provisions. In Francis Oluyemi Olamiju Esq v. Local Government Service Commission, Ekiti State & anor unreported Suit No. NIC/LA/157/2011 the ruling of which was delivered on 5th March 2012, this Court held as follows – A look at the Sheriffs and Civil Process Act reveals that section 97 comes under Part VII of the Act. In that Part the use of the word “Court†is defined to mean a court to which Parts III, IV, V and VI applies. Only in Part III is the word “Court†defined to include “the High Court of the Federal Capital Territory Abuja or of the States†and “judge†is defined to mean “a judge of the High Courtâ€. Part II of the Act, however, defines “Court†to include “a High Court and a magistrate’s Courtâ€. What I can deduce from these definitions is that the courts contemplated for the application of the Sheriffs and Civil Process Act are specifically provided for. For instance, only in Part II is magistrate court contemplated. In other Parts, it is not s mentioned. The argument of the defendants’ counsel that the word “includes†used in the definitions must be read as not being exhaustive or even exclusive seems to, therefore, gloss over why a court like the magistrate court is mentioned in Part II and not in other Parts. The answer of counsel here that section 97 covers all courts of co-ordinate jurisdiction such as the National Industrial Court also does not answer the question whether the Sharia Courts of Appeal or Customary Courts of Appeal, all courts of co-ordinate status and power with the High Court, [are also covered]. In fact, it does not answer the question whether the Court of Appeal and the Supreme Court, when acting under their original jurisdiction, are bound by section 97 of the Sheriffs and Civil Process Act. My take on all of this is that not all courts are covered by section 97 of the Sheriffs and Civil Process Act; and I so find and hold. Since this is the case, I hold that this court is not covered in terms of the application of the said section 97. My view point is reinforced by section 36(1)(g) of the Trade Disputes Act Cap. T8 LFN 2004 which permits this court to do all such things or give such directives as are necessary or expedient for dealing especially with matters before it. This provision is reinforced by section 12(2) of the NIC Act 2006. This court was not set up to be bound by the sort of technicality that section 97 of the Sheriffs and Civil Process Act represents. Even aside from all of this, a look at section 97 of the Sheriffs and Civil Process Act will reveal that while its first part may apply to this court, its second part cannot; and statutes are to be construed holistically, not isolatedly. Section 97 provides as follows – Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect…[emphasis is the Court’s]. From this provision, one will notice that references to State and Capital Territory implies territorial limitation in terms of the jurisdiction that the State High Courts or High Court of the Capital Territory suffers from, which this court does not in view of section 21 of the NIC Act 2006. Secondly, in the underlined portion of section 97 quoted above, it can be discerned that aside from the endorsement required by section 97 itself, other endorsements may be required by State laws or laws applicable to the Capital Territory; again, the reference here conjures up the question of territorial law and limitations. In regards to this court, therefore, which state or Capital Territory Law can be said to apply to warrant the further application of section 97 in the manner depicted by the underlined part of the section quoted above? I do not think, on the whole, that this court is contemplated for purposes of section 97 of the Sheriffs and Civil Process Act, and even if it is, [whether] the section can apply when the totality of the Trade Disputes Act and the NIC Act 2006 is taken. I must state that the cases of DENR Limited v. Trans Int’l Bank Limited [2008] 18 NWLR (Pt. 1119) 399 and Owners of MV Arabella v. NAIC [2008] 11 NWLR (Pt. 1097) 182 cited by the defendants were cases regarding the High Court, not cases where the cause of action was filed in this Court. The defendants did not show to this Court how this Court is contemplated under the Sheriff and Civil Process Act in order to be bound by DENR Limited v. Trans Int’l Bank Limited and Owners of MV Arabella v. NAIC. In this wise I agree with the submission of the claimant to the effect that sections 97 and 99 of the Sheriffs and Civil Process Act do not apply to processes emanating from this Court. My take, therefore, is that the emphasis in section 97 of the Sheriffs and Civil Process Act on service out of the State in which it was issued cannot be applicable to this Court especially if section 12(2) of the National Industrial Court (NIC) Act 2006, which permits the Court not to be formal, is taken note of. I must then note that, as held in Nwabueze v. Okoye [1988] 4 NWLR (Pt. 91) 664, the provisions of the Sheriffs and Civil Process Act have nothing to do with the issue of the writ of summons itself, a matter within the area of jurisdiction of the House of Assembly of a State whilst service of a writ of summons outside the State but within Nigeria is within the area of the jurisdiction of the National Assembly deemed to have enacted the Sheriffs and Civil Process Act. And Complete Comm. Ltd v. Onoh [1998] 5 NWLR (Pt. 549) 197 at 223 later held that based on the Rules of Court of the Anambra State High Court and section 96 of the Sheriffs and Civil Process Act, a writ of summons can be issued and served outside the State without first seeking and obtaining leave of Court. In the instant case, the contention of the defendants is that the claimant did not comply with sections 97 and 99 of the Sheriffs and Civil Process Act and so the Court lacks the jurisdiction to hear and determine the case. However, the defendants did not show to the Court why it should depart from the reasoning of this Court quoted earlier in Francis Oluyemi Olamiju Esq v. Local Government Service Commission, Ekiti State & anor. In any event, this Court has no functional Court in Port Harcourt where the defendants reside. Cases coming from Port Harcourt are heard in Calabar where there is a functional Division of this Court. So the argument of the defendants that cases coming from Port Harcourt and which are heard in Calabar require endorsement is misconceived if sections 12(2) and 21 of the NIC Act 2006 are appropriately appreciated. Section 12(2)(a) of the NIC Act 2006 permits this Court not be bound by the kind of formality that the defendants seem to be praying for. Secondly, the defendants did not show how injustice has been done to them regarding the claim of failure adhere to notice period required of them to enter appearance when they were served with the originating processes in this suit. After all, according to Egbo v. Agbara [1997] 1 NWLR (Pt. 481) 293, Ezeoke v. Nwagbo [1988] 1 NWLR (Pt. 72) 616 and Ojiegbe v. Okwaranyia [1962] 2 SCNLR 358, not every irregularity automatically nullifies the entire proceedings particularly where the irregularity did not materially affect the merits of the case or occasion a miscarriage of justice. And by Job Charles Nig. Ltd v. Okonkwo [2002] FWLR (Pt. 117) 1062, failure to serve a writ as required by Court rules is an irregularity, not an illegality. It was for these reasons that the defendants’ preliminary objection was struck out by this Court. I shall now proceed to considering the merit of the case. In doing this, I need to dismiss issue 1 raised by the claimant, which is whether the non-filing of a reply to the statement of defence by the claimant amounts to an admission of the facts contained in the statement of defence. The defendants did not make an issue of this. It is accordingly a non-issue and so is discountenance for purposes of this judgment. From the reliefs claimed and the other issues raised by the claimant, what this Court is being called to resolved can be said to be whether the defendants were negligent towards the claimant, and whether the defendants prohibited the claimant from gaining entry into the company which thus translates to a wrongful termination or dismissal of employment. If these questions are resolved in the affirmative, there is the question whether the claimant is thereby entitled to damages from the defendants. I shall take the issue of negligence first. The defendants admit that the claimant was in the employ of the 1st defendant up till July 2011, when he voluntarily excused himself from the service of the 1st defendant. See paragraph 4 of DW1’s statement on oath. Exhibit C1 is the offer of appointment of the claimant as Machine Operator in the 1st defendant’s company. Although exhibit C1 is undated, its paragraph 3 states that the effective date of the contract of employment is 1st October 2009. And by paragraph 4 of CW’s written statement on oath, the claimant deposed that he was employed in October 2009. Now, by Oghahon v. Reg. Trustee CCGG [2001] FWLR (Pt. 80) 1496; [2002] NWLR (Pt. 749) 675, an undated letter is invalid except proved by oral/parole evidence the date left out. Paragraph 4 of the claimant’s statement on oath and the admission of the defendants that the claimant was in their employment all go to feed the validity of Exhibit C1; and I so find and hold. From the evidence before the Court, the claimant was injured while at work on 19th December 2009 (a Saturday). The photographs in Exhibits C9A – C9J show the gory nature of the injury suffered by the claimant, an injury affecting the left hand of the claimant. The exact nature of the claimant’s injury can be vividly seen from the testimony of the claimant himself and Exhibit C7, the Medical Report from University of Port Harcourt Teaching Hospital dated 23rd July 2012. In summary, however, the claimant asserts that while feeding the long span sheet into the machine, his left hand alongside the long span sheet were forcefully pulled in by the malfunctioning machine wherein the claimant’s left hand was severely and immediately damaged as the machine severed some part of his palm and fingers. This led to the loss of some left finger bones including the thumb. He underwent different surgical operations free of charge wherein flesh was removed from his waist, thigh and his left arm to cover up the severed left thumb and fingers. After the operations and during the claimant’s stay at the clinic his left hand was sown together to his waist in other to keep it stable. See Exhibits C9B – C9I. In consequence of all this, the claimant needed further surgery at the University of Port Harcourt Teaching Hospital (UPTH) so as to separate his fingers which had glued together. He underwent the surgical operation at UPTH with partial success at the cost of over Two Hundred Thousand Naira (N200,000.00) and he still needs to undergo further surgical operation though his left hand and fingers are not expected to function normally even after further surgery. Further surgery to be carried out on the claimant’s fingers was referred to Artemis Hospital India, which gave a cost of 9,000 US Dollars for the further surgery. See Exhibit C8. The fact of injury to the claimant is not in doubt. The fact that the injury occurred at work is also not in doubt. This accordingly makes the injury one that is work related having occurred in the course of employment; and I so find and hold. See Mr. Charles Nwaosa v. Ports & Terminal Multiservice Ltd & anor unreported Suit No. NIC/LA/262/2012 the judgment of which was delivered on July 17, 2013. What, therefore, this Court is to decide is whether the injury to the claimant was as a result of the negligence of the defendants or that of the claimant. The argument of the claimant is that his injury was caused by the negligence of the defendants while the defendants’ case is that the claimant’s injury was caused by his professional recklessness, negligence and non-adherence to the safety policies of the defendants given that the claimant is not required to gain access into the factory without duly complying with the basic safety rules of the 1st defendant which include but is not limited to wearing of safety boots, hand gloves and other protective wears. The evidence of DW2 has already been struck out by this Court. So what is left for consideration is the evidence of DW1, who incidentally is the 2nd defendant in this matter. Under cross-examination, DW1 acknowledged that he was not in the factory at the time of the accident. That he arrived afterwards; and it was his workers who told him hence his deposition. This means that a good deal of his testimony is actually hearsay or opinion (see, for instance, paragraphs 12, 14, 17, 24 and “21†as sandwiched between paragraphs 46 and 47 at the last page of DW1’s sworn deposition), which has no probative value. Furthermore, in paragraphs 14 and 17, DW1 made references to Mr. Wisdom “Owofasaâ€, presumably the same as DW2 whose evidence the Court struck out for the reasons already adduced in this judgment. In paragraph 19 of his sworn deposition, DW1 deposed that he “donated sufficient blood for every required surgery on the Claimantâ€. Now if this is true, and knowing from the evidence before the Court that the claimant actually underwent several surgeries, would DW1 be still alive if he actually “donated sufficient blood for every required surgery on the Claimantâ€? I really do not think so. In any event, when asked under cross-examination whether he was given any certificate to show he donated blood at Teme Clinic, DW1 responded that he was not given any. What all of this portends is that the evidence of the DW1 is not believable and so had little weight and probative value. Even when DW1 deposed in paragraph 31 of his sworn deposition that they continued to bear the claimant’s medical expenses and also continued to pay his salary, no proof of this was advanced to the Court. The bundle of petty cash invoice frontloaded by the defendants seems unreal. Exhibits D1B – D1M, for instance, has the sum of N7,350 running through the face of each of the invoice. Exhibit D1P is for medical expenses without stating what the expenses are. Exhibits D1S and D1Y are for N15,700 being “salary for March†and “feb.â€. Is salary paid through petty cash voucher or through payslips? The practice in the world of work is that salaries are paid through payslips, which then itemise the items that make up the salary. Exhibit D1X is for “drugs for the periodâ€, without indicating the drugs or the period. This is the pattern that runs through the bundle of the vouchers frontloaded by the defendants. Whose negligence, the claimant’s or defendants’, caused the claimant’s injury? This remains the question. As indicated, the case of the defendants is that the claimant’s injury was caused by the claimant’s professional recklessness, negligence and non-adherence to the safety policies of the defendants given that he did not comply with the basic safety rules of the 1st defendant which include but is not limited to wearing of safety boots, hand gloves and other protective wears. In other words, the claimant was not wearing these safety gears at the time of the accident to him. This line of reasoning is, however, not in consonance with the authorities. By Green Pack Rubber Ind. Ltd v. Ossai [2004] 2 FWLR (Pt. 194) 668, section 23 of the Factories Act 1990 enjoins that no person should be employed at any machine or in any process being a machine or process liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed, or he is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process. This case went on to lay down that section 17(1) of the Factories Act imposes an obligation on a company to securely fence every dangerous part of any machinery to secure the safety of every person employed or working on the premises or a device should be provided that will protect the operator or the person from coming into contact with the dangerous part of the machinery. Further still, this case states that the obligation on a company to fence every dangerous part of the machinery is an absolute one and the duty is owed not only to the actual operator but to all persons who are employed or working on the premises. Hence if the dangerous machinery cannot be fenced securely, it cannot lawfully be used at all. The obligation to fence every dangerous part of the machinery is imposed in order to guard against contact with any dangerous part of the machinery. The fence is intended to keep the worker out, not to keep the machine or its product in. Yet still, the case lays down that when a statutory duty is imposed on an employer but not on the workman who is injured and there is breach of that duty which is a cause of the accident to the workman, the employer will be liable subject to an apportionment for contributory negligence. The employer will be completely exonerated if the workman, having been given appropriate equipment and instructions disobeyed those instructions or did some other deliberate wrongful act which breaks the causal connection. In the latter case, the statute must have imposed a similar duty on the employee. DW1 in paragraph 10 of his sworn deposition deposed that the claimant was in the habit of not complying with the 1st defendant’s basic rules and regulations, including safety rules; and that he reluctantly takes instructions from his superiors and challenges constituted authority like he did on the day of the accident by neglecting to wear his safety shoes and hand gloves before entering the factory. And in paragraph 11, DW1 deposed that “cashing in on the temporary absence of the Safety officer of the 1st defendant at that moment, who had gone to eat, the Claimant who has always exhibited a penchant for being unruly, entered the factory without wearing these basic safety wear. Despite all of this, the defendants still retained the claimant as an employee. In any case, the Factories Act and the case of Green Pack Rubber Ind. Ltd v. Ossai enjoin full instruction and adequate supervision of employees working on or with machineries. This did not seem to be the case going by the deposition of DW1 in paragraph 11 of his sworn deposition. There is, therefore, no proof that the defendants observed any of the duties imposed on them or that their acts come within the qualification enunciated in Green Pack Rubber Ind. Ltd v. Ossai to the effect that the claimant was given appropriate equipment and instructions but he disobeyed same or did some other deliberate wrongful act which breaks the causal connection; and I so find and hold. It should be noted that Adetona v. Edet [2004] 16 NWLR (Pt. 899) 338 held that an employer’s liability at common law is also the general duty imposed on all people to take reasonable care to avoid injuring their neighbours. The defendants in paragraph 15 of DW1’s deposition on oath deposed as follows – Like in every production company, oil normally spills from the production machines in the production process making the floor slippery and necessitating workers (like claimant) entering such factories to wears safety shoes. Furthermore, in paragraph 16 of DW1’s deposition on oath, the defendants deposed thus – That because the claimant was not wearing safety shoes on that day as was provided him by 1st defendant and as he is compulsorily required to do, the claimant slipped, while trying walking around and in falling down, he held onto the machine unfortunately thereby sustaining the injuries complained of in the process. By these averments, the defendants acknowledge that it is a necessity for the claimant to wear safety shoes while at work. Now by IITA v. Amrani [1994] 3 NWLR (Pt. 332) 296, the standard of an employer’s duty to his worker is to see that reasonable care is taken – the scope of that duty extends to the provision of safe fellow workers, safe equipment, safe place of work and access to it and a safe system of work. The case additionally held that a place of work which is safe in construction may become unsafe through some obstruction being placed on it or through the presence of something on the floor which makes it slippery. Western Nigeria Trading Co. Ltd v. Ajao [1965] All NLR 524 then goes on to hold that an employer’s duty at common law is not only to provide the employee with goggles, but also to see to it that they are used. In like manner, it is the duty of the defendants in the instant case not only to provide safety shoes to the claimant but to ensure that the claimant used them. This, the defendants failed to do in the present case. The defendants are accordingly negligent in that regard; and I so find and hold. In consequence of this finding and holding, the claimant has succeeded in making out his claims for reliefs 1, 2 and 7. And this remains the case irrespective of Exhibit D2 frontloaded by the defendants. What then is the measure of damages regarding the finding and holding on negligence? Given Exhibit C8, I have no hesitation in finding and holding that the claimant has proved the claim for relief 6 and so is accordingly entitled to the award of same. This will enable the claimant undertake the corrective surgery needed regarding the injury sustained by the claimant through the negligence of the defendants, and which Exhibit C7 in the 4th paragraph confirmed that the claimant “would need more surgery operations to further debulk the hand and make the fingers thinnerâ€. Having then awarded relief 6, is the claimant entitled to any other monetary award regarding the negligence of the defendants? The 5th paragraph of Exhibit C7 states that the claimant’s “hand and fingers would not function normally even after the surgeries because of the injuryâ€. In relief 5, the claimant is accordingly praying for an order of Court that both defendants should pay to him the sum of N71,212,500.00 being: a) N4,712,500.00 as special damages for loss of future earnings. b) N40,000,000.00 as general damages for pain, suffering, partial permanent incapacitation, loss of amenity, loss of future employment due to the negligence of defendants. c) 5,000,000.00 representing punitive damages for defendant’s negligence. d) N10,000,000.00 being general damages for wrongful termination of claimant’s employment. e) N10,000,000.00 being punitive damages for wrongful termination of claimant’s employment. f) N1,500,000.00 representing the cost for this action. Regarding relief 5(a), which for N4,712,500 being special damages for loss of future earnings, the case of the claimant in paragraph 16 of his sworn deposition is that he was a vibrant young man prior to his injury and so he still has at least 25 years more of productive years after the filing of this action to work, earn income and provide for his immediate family being the bread winner. The claimant arrived at N4,712,500 by multiplying his annual salary of N188,500 (see Exhibit C1) by the said 25 years of productive capacity. There is no evidence before the Court of the age of the claimant in order to determine whether he still has up to 25 years of productive capacity. There is no evidence before the Court of the family of the claimant to show that he is a family man and hence the breadwinner of that family. For these reasons I cannot grant relief 5(a) as claimed by the claimant. The relief according fails and so is dismissed. Relief 5(b) is for “N40,000,000.00 as general damages for pain, suffering, partial permanent incapacitation, loss of amenity, loss of future employment due to the negligence of defendantsâ€. Meanwhile, as I indicated earlier, the 5th paragraph of Exhibit C7 states that the claimant’s “hand and fingers would not function normally even after the surgeries because of the injuryâ€. However, how the claimant arrived at the exact sum of N40,000,000 is not indicated to the Court. Relief 5(c) is for “5,000,000.00 representing punitive damages for defendant’s negligenceâ€. Aside from the fact that the claimant did not indicate what the “5,000,000†stands for, whether it is Naira or some other currency, the claimant did not also state how and why it should be entitled to punitive damages. Reliefs 5(d) and (e) relate to the claim for wrongful termination and so would be considered when the issue of wrongful termination is treated. In like manner, the issue of cost, Relief 5(f), will be treated after all issues are considered at the end of the judgment. Is the claimant then still entitled to any form of damages for the negligence of the defendants? Section 19(d) of the National Industrial Court (NIC) Act 2006 permit this Court to make “an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hearâ€. Section 254C(1)(b) of the 1999 Constitution, as amended, gives this Court jurisdiction over the “Workmen’s Compensation Act or any other Act or Law…replacing†it. The injury complained of by the claimant occurred on 19th December 2009. This means that the cause of action arose on that said date. By Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 the law for determining a case is the law as at the time the cause of action arose. This means that the law for determining the instant case is the Workmen’s Compensation Act Cap. W6 LFN 2004, not, for instance, the Employee’s Compensation Act 2010 which replaced the Workmen’s Compensation Act. Section 3(1) of the Workmen’s Compensation Act enjoins employer to pay compensation in accordance with the Act to a workman who suffers personal injury by way of an accident arising out of and in the course of employment. I earlier made a finding that the claimant’s injury occurred while he was at work. This means that his injury arose out of and in the course of employment; and I so find and hold. By Relief 5(b), the claimant acknowledged that his injury is “partial permanent incapacitationâ€. Exhibits C9B, C9C, C9D, C9E, C9F, C9H and C9I reveals that the claimant’s injury is the decapitation of his left hand and fingers. The measure for such an injury is regulated by section 7 of the Workmen’s Compensation Act which is a percentage of what a worker would have recovered under section 5 of same Act i.e. a percentage of 54 months’ earnings. It is the Second Schedule to Workmen’s Compensation Act that then provides what the percentage is. In item 12 dealing with loss of hand at wrist, the amount payable is 70% of 54 months’ earnings. By paragraph 14 of the sworn deposition of the claimant, and going by Exhibit C1, the monthly salary of the claimant is N15,708.33. This sum multiplied by 54 months comes to N848,249.82. And 70% of N848,249.82 is N593,774.87. So under the Workmen’s Compensation Act, what the claimant is entitled to as compensation for his injury is N593,774.87; and I so find and hold. See generally A. O. Obasuyi & Sons Ltd v. Gabriel Erumiawho [1999] 12 NWLR (Pt. 630) 227. By this case the Supreme Court also held that the Second Schedule to the Workmen’s Compensation Act, which has adequately taken care of the percentage of disability suffered makes a medical assessment superfluous. A global reading of sections 15(6) and 29 of the Workmen’s Compensation Act shows that the sections enjoin the employer to defray medical expenses incurred regarding the treatment of an injured employee without taking away the employee’s right to compensation as made out under the Act. This means that whatever payments the defendants may have made as per the bundle of invoices/vouchers/cheques they frontloaded (and which by paragraph 21 at the third page of DW1’s sworn deposition is put at “in the region of N1,000,000.00†– the claimant under cross-examination actually denied that the defendants paid any medical expense at the University of Port Harcourt Teaching Hospital) do not take away the right of the claimant to compensation under the Act to any further treatment as may be required as per Exhibits C7 and C8; and I so find and hold. See generally Mr. Charles Nwaosa v. Ports & Terminal Multiservice Ltd & anor (supra). The claimant did not make any claim for any of the medical expenses he said he paid for; and so I cannot make any order for any refund of such an expense. I now proceed to the second main issue, whether the defendants prohibited the claimant from gaining entry into the company which thus translates to a wrongful termination or dismissal of employment. By paragraph 1 of the claimant’s sworn deposition, the claimant deposed that he “was an employee of the 1st Defendant Company from 2009 to June 2011â€. By this deposition, the claimant acknowledges that he ceased to be an employee by June 2011. So I am at a loss why the claimant is claiming for “an order of Court that the 1st and 2nd defendants should pay the claimant loss of immediate earnings at the sum of N15,708.00 from July 2011 till judgment is given†under relief 4. The evidence of the defendants is that they did not terminate the employment of the claimant; instead the claimant simply stopped coming to work. See paragraphs 26 – 29 of the sworn deposition of DW1. There is no refutation of this or evidence to the contrary other than the unsubstantiated statement of the claimant that the defendants caused him to be denied access to the 1st defendant company anywhere in the case file by the claimant. If anything, the claimant deposed in paragraph 8 of his sworn deposition that after being discharged from the clinic, he resumed work with the 1st defendant. And under cross-examination, the claimant testified that after the surgeries, he was allowed by his company to resume work with full salary and allowances; and that he asked and earned salary for 6 months with his company after the surgeries. All of this, and taking the claimant’s deposition in paragraph 1 together with the depositions of DW1 in paragraphs 26 – 29 of his sworn deposition, I believe the defendants that they did not terminate the employment of the claimant; instead it was the claimant who stopped coming to work – and I so find and hold. The defendants did not make any counterclaim against the claimant and so I cannot make any order regarding the claimant stopping work even when clause 5 of Exhibit C1 makes provision for appropriate notice or payment in lieu of notice for purposes of termination of the employment. This means that the claimant is not entitled to Reliefs 3, 4 and 5(d) and (e) as well as relief 5(f) praying for cost. The said reliefs are accordingly dismissed. In all, and for the avoidance of doubt, the claims of the claimant partially succeed and only in the following terms – 1. It is declared that the 1st and 2nd defendants were negligent in the operation of their business and as such failed to take reasonable care for the safety of the claimant which resulted in the injury of the claimant. 2. It is declared that the 1st defendant operates its business without safety standards and procedures. 3. It is ordered that the defendants shall provide adequate safety supervision and paraphernalia for its employees during working hours. 4. It is ordered that the defendant shall pay to the claimant the sum of 9,000 US Dollars (or its Naira equivalent) being the cost for surgical and skin grafting operation at Artemis Hospital India where the claimant’s fingers/hand would be properly operated on. 5. It is ordered that the defendants shall pay to the claimant as compensation for his injury the sum of N593,774.87 only. 6. All sums ordered to be paid are to be paid within 30 days of this judgment. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip