Download PDF
The claimant took up a complaint dated and filed on the 5th day of June 2013 against the defendant praying for the following reliefs – 1. A declaration that the Claimant who was employed by the Defendant on the 1st day of November 2010 as a Rigger, is still a bona-fide employee of the Defendant and as such is entitled to be paid his withheld salaries from the month of January 2011 till the month judgment will be delivered in this suit. 2. A declaration that the Defendant’s act of abandoning the Claimant who sustained severe injuries while on duty for the Defendant, is a gross breach of the Defendant’s duty of care owed the Claimant. 3. An Order directing the Defendant to pay to the Claimant the sum of N49,065,000.00 (Forty-Nine Million, Sixty-Five Thousand Naira) only, representing: (a) N7,565,000 (Seven Million, Five Hundred and Sixty-Five Thousand Naira) only as the specific amount spent so far on treating the injuries sustained by the Claimant while working for the Defendant; (b) N1,500,000.00 (One Million, Five Hundred Thousand Naira) only as the specific amount spent on engaging a legal practitioner to file and prosecute this suit before this Honourable Court. (c) N40,000,000.00 (Forty Million naira) only as punitive general damages in compensating the Claimant for subjecting him to excruciating pains, permanent respiratory and productive impairments, public ridicule, severe hardship and stern medical trauma. 4. An Order directing the Defendant to take the Claimant to a foreign Specialist Hospital for further treatment of the of the Claimant’s severely fractured right leg which had been fastened to a sterile metal for over 2 (Two years) and due for its final operation; and 5. And for such other orders as this Honourable Court may deem fit to make from the foregoing circumstance. The Complaint was accompanied with Statement of Claim establishing the cause of action, the Claimant’s written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The Defendant entered appearance on the 20th day of June 2013 and filed a Statement of Defence, list of witnesses, witness’ statement on oath, list of documents and copies of documents to be relied upon. The Claimant on the 17th of July 2013 filed a Reply to the Defendant’s Statement of Defence. The Defendant thereafter sought and obtained leave of court to file an additional list of documents. These were deemed filed and served by order of court on the 12th of November 2013. The case proceeded to hearing on the 12th day of November 2013. The parties fielded a witness each. The Claimant testified on behalf of himself as CW1, while Juliet Etchie, a secretary with the defendant testified as DW1. Hearing was concluded by the 4th day of February 2014, and at the close of the case for each of the parties, final written addresses were filed in accordance with the rules of this court, starting with the defendant. The defendant filed its written address on the 17th day of February 2014 and the Claimant’s written address was filed on the 12th day of March 2014. Thereafter, the Defendant filed a Reply on points of Law on the 18th day of March 2014. They adopted their respective written addresses on the 8th day of April 2014. The claimant testified for himself as CW1 on 12th November 2013. He stated that he was an employee of the defendant as a Rigger. His identity card was admitted as Exhibit C1. He said that on 21st January 2011 while manually operating an excavator machine to lift a generator on the instruction of the defendant’s director, the excavator failed and the generator fell on him and his right leg got damaged. He was taken to a trado-medical house by his colleagues and later to Teme Clinic by the defendant where the defendant abandoned him. The Claimant further testified that at Teme clinic, a metal was affixed to his broken thigh which metal is now ripe to be removed from his thigh but he had no funds for the purpose. His efforts to get the defendant’s assistance failed. He consequently engaged his counsel to write to the defendant. The witness said further that his employment with the defendant has not been terminated and his salary from January 2011 has not been paid to him. One Juliet Etchie, a secretary with the defendant testified for the defendant as DW1. It is her testimony that the claimant was not an employee of the defendant but was taken in and being trained as a rigger, which training he was yet to complete at the time of the accident. She said further that the claimant, who was only on allowance, already had a bad leg at the time he was engaged as a trainee rigger. That the accident happened, DW1 stated, was no fault of the defendant and the claimant was not supposed to be at the scene of the accident. She went further that after the accident, the defendant took the claimant to Teme Clinic for medical treatment and has ever since been assisting the claimant in various ways. The witness maintained that the claimant is now fit and was seen operating a sewing machine but refused to resume work. When the claimant approached the defendant for assistance to remove the metal, the defendant was no longer operating as its managing Director had died. The claimant was then advised to be patient till when funds are available. While urging the court to dismiss the claims against the defendant, DW1 further maintained that the defendant was not responsible for the accident. In his written address filed on the 17th day of February 2014, Learned Counsel for the Defendant submitted that having regard to the facts and circumstances as revealed in the pleadings, the question is whether the Claimant’s claim has succeeded for him to have judgment given in his favour having regard to: (i) Whether the Claimant was an employee of the Defendant Company. (ii) Was Claimant on a frolic of his own when the accident happened? (iii) Was he helped financially, on humanitarian grounds by the defendant? (iv) Was he abandoned by the defendant? (v) Is he now healthy and fit to work? (vi) Is he entitled to be granted some of the monetary claims made by him, all monetary claims being in the nature of special damages? (vii) Is he entitled to general damages? On the 1st subhead, it is the defendant’s submission that the claimant was never an employee of the defendant company, and that having failed to produce documents to show proof of his employment and proof of his salary, all claims relating to payment of salary must fail. On issue two, the defendant submitted that the claimant was on a frolic of his own when the accident happened; that the claimant was not supposed to be at the scene of the accident. It was also submitted that the Claimant did not call any additional witness to prove his assertion that he was directed by Mr. Hassan the director of the defendant along with 2 other employees (Emmanuel and Lucky) to do the work that resulted in the accident. Failure to call the said Emmanuel or Lucky to testify in support of this assertion, it is submitted, is fatal to the Claimant’s case. Having therefore withheld vital evidence, the provisions of Section 167(d) of the Evidence Act can be presumed to apply, as their testimony was not likely to support his case. State vs. Azeez (2008) 14 NWLR (Pt.1108) Pg. 439. It should therefore be concluded that the Claimant was there on a frolic of his own. On the 3rd subhead, the defendant submitted that the Claimant lied when he asserted that he was abandoned; and that the Claimant was given financial assistance as shown in the Exhibits tendered. Rather, it was the Claimant that abandoned his position as trainee Rigger to work as a tailor. On the 4th subhead as regards whether the Claimant is now healthy and fit to work, it was the defendant’s submission that the Claimant has fully recovered from his injuries and had started working as a tailor in his brother’s tailoring shop. Having failed to produce medical evidence of his state of health, the Claimant must therefore be held to have failed to prove that he is incapacitated and unfit to work. Again Section 167(d) of the Evidence Act was cited in this regard. See also Purification Tech Nig Ltd vs. Jubril (2012) All FWLR (Pt. 642) 1657. As regards the monetary claims made by the Claimant, it is the submission of the defendant that they must strictly be proved. The various sums of money stated are not specifically itemized or proved, no receipts are produced to show the expenses, and no evidence or materials are placed before the court to work on, therefore the court cannot speculate. He cited the authorities of Intels Nig Ltd vs. Bassey (2013) All FWLR (675) Pg. 376, Overseas Const. Ltd vs. Creek Enterprise Ltd (1985) 3 NWLR (Pt. 13) Pg. 407 at 413-414 and Atagbo vs. Okpo (2013) All FWLR (Pt. 680) Pg. 1362 and urged the court to dismiss the claim of the Claimant. The Claimant in his written address filed on the 12th of March 2014 adopted precisely the same issues formulated by the defendant. As regards issue one whether the claimant was an employee of the defendant, the claimant submitted that he was and is still indeed a bonafide employee and staff of the defendant since 1st November 2010 till date. Exhibit C1 (identification card) which has the word ‘RIGGER’ inscribed on it identifying the Claimant’s official position, Counsel submitted, was issued to the Claimant in November 2010 upon completion of his training between July and October 2010. Relying on Bello vs. Eweka (1981) 1 SC Pg. 101, High-Grade Maritime Limited vs. FBN Limited (1991) 1NWLR (Pt.167) Pg. 290 and Mobil Producing Unlimited vs. LASEPA (2002) 18 NWLR (Pt. 798) Pg. 46, it was submitted that facts admitted need no further proof for the court’s acknowledgment, and the claimant need not furnish further evidence regarding how much he earns as salary. Reliance was placed on Orient Bank (Nig) Plc vs. Bilante International Ltd (1997) 8 NWLR (Pt. 515) Pg. 37 where Niki Tobi JCA held that it is a fundamental principle of the Nigerian Labour Law that anyone that is expressly or impliedly engaged by a corporation, with or without wages, is an employee thereof. Claimant urged the court to discountenance the submissions of the defendant and hold that the claimant is a bonafide employee of the defendant and therefore entitled to be paid his withheld monthly salaries. As regards issue two whether the claimant was on a frolic of his own when the accident happened, the claimant submitted that he was not on a frolic of his own when the accident occurred on 21st January 2011 as contended by the defendant. He submitted that the Claimant obeyed the Managing Director’s instructions by joining two of his other colleagues of the company to assist to manually regulate an excavator machine that was loading a lister generator into a tipper. The excavator failed midway, and the lister generator fell on the claimant, damaging his right leg. It was submitted that the fact that the claimant became a victim of the accident that occurred at Oron while working for the defendant was not disputed by the defendant. The testimony of DW1 who admitted that she was not at Oron when the accident occurred, should be discarded, being wholly based on hearsay. The Claimant submitted further, citing the authorities of Ukegbu vs NBC (2007) 14 NWLR Pt. 1951 Pg. 551 @ 579-580, Barclays Bank vs. CBN (1976) 6 SC Pg. 175 and Military Governor of Lagos State vs. Ojukwu (1986) 1 NWLR Pt. 18 Pg. 621 @ 648, that the averments contained in paragraphs 4-6 of the defendant’s statement of defence which was bourne out of paragraphs 5-9 of DW1’s deposition on oath are incurably defective and liable to be struck out for non-compliance with Section 126(a) of the Evidence Act 2011 because the witness did not personally witness the occurrence of the event forming the crux of her testimony, therefore it amounts to hearsay evidence, and as such, lacks probative value. The Claimant went further that failure to call Emmanuel and Lucky is not fatal to the Claimant’s case. He urged the court to hold that the Defendant’s act of abandoning the Claimant who sustained severe injuries while on duty for the defendant, is a gross breach of its duty of care owed the Claimant as its employee. On issue three whether the Claimant was financially assisted by the Defendant on humanitarian ground, it was the submission of the Claimant that upon the unfortunate accident of 21st January 2011, the Defendant willfully abandoned him and never assisted him nor ensured his welfare. He pointed out contradictions in paragraphs 5 and 6 of the Statement of Defence and paragraphs 8 and 9 of DW1’s deposition. In the said paragraphs, while the defendant stated in one breathe that the Claimant was taken to the hospital as soon as the accident happened, in another breathe the defendant averred that the defendant’s personnel retrieved the Claimant from a so-called traditional home before being taken to the hospital. These contradictions, Claimant says not only portrays the defendant’s ill-intentions, but also goes to confirm the facts presented by the Claimant in paragraphs 6 – 12 of his Statement of Claim. The Claimant under cross-examination denied that he was given any form of financial assistance from the defendant. He urged the court to hold that the petty cash vouchers tendered as Exhibits DD1-DD5 and DD6-DD8 were not issued in favour of the Claimant. This was further confirmed by DW1 who testified under cross-examination that she and other staffs of the defendant signs and collects the said monies on behalf of the Claimant. The court was urged to resolve this issue in favour of the Claimant. On issue four whether the Claimant is now healthy and fit to work, it is Claimant’s submission that his health is far from being restored. The defendant has admitted this fact by averring (in paragraph 21 of its statement of defence) to its willingness to make provision for the Claimant to conclude his treatment (surgery to remove metal from his leg) subject to availability of funds. DW1 under cross-examination also attested to the fact that there is still iron in the Claimant’s leg. It was submitted by the Claimant that the allegation that he was seen operating a sewing machine was debunked in the claimant’s reply to the defendant’s statement of defence and also under cross-examination when he testified that he has no brother that is a tailor. It was further submitted that the provisions of Section 167(d) of the Evidence Act 2011fails to avail the defendant’s contention that the Claimant requires a medical report from Teme Clinic to prove that he is still ill. In the light of the express admission by the defendant, of the Claimant’s assertion of several body impairments, same needs no further proof. Relying on Obawole vs. Williams (1996) 10 NWLR Pt. 477 Pg. 146 and Bello vs. Eweka (supra), Counsel urged the court to again resolve this issue in favour of the Claimant. On issue five whether the Claimant is entitled to be granted the monetary claims made by him, being in the nature of special damages, the Claimant submits that the issue as formulated by the defendant is misleading. The Claimant’s claim represents special, punitive and general damages, and not just special damages. As regards the claim for N7, 565,000 (Seven Million, Five Hundred and Sixty Five Thousand Naira) spent on treating the injuries sustained by the Claimant at the trado-medical outfit at Oron and the claim for N1,500,000 (One Million, Five Hundred Thousand Naira) spent on engaging a legal practitioner to prosecute this suit, it was submitted by the Claimant that he need not show receipts, especially as it is of common knowledge that trado-healing homes do not issue receipts for services rendered. Also, the defendants did not traverse the facts which were specifically pleaded; they are therefore deemed admitted and need no further proof. The Claimant submitted that courts do not require specific proof of punitive and general damages, as the power of the court is discretional in that regard, and therefore usually exercised judiciously, being designed to compensate the victim of an abuse. Onagoruwa vs. IGP (supra). The claimant urged the court to execise its discretion judiciously and uphold the award of N40,000,000 (Forty Million Naira) only, as punitive and general damages against the defendant in duly compensating the claimant for the excruciating pains, respiratory and productive impairments, public ridicule, severe hardship and stern medical trauma unjustly suffered all at the instance of the defendant. Counsel to the Claimant finally urged the court to order the defendant to take the Claimant to a foreign specialist hospital for treatment because the management of Teme Clinic had relocated away from Port Harcourt and the Claimant’s treatment remains uncompleted, as he still requires further surgery. Counsel concluded by submitting that the Claimant had discharged the burden placed upon him at law, having duly established his case on the preponderance of evidence. He is therefore entitled to judgment. The Defendant in its reply on points of law filed on the 18th day of March 2014 reiterated that the Claimant was not an employee of the defendant. It was submitted that the elements of a valid employment which are letter of employment, conditions of service, known salary and payment of salary to the employee, are all missing from this case. Counsel to the defendant submitted that the Claimant has failed to prove that he was an employee of the defendant, and that the mere production of an ID card was not enough to establish that fact. The defence submitted that the authority of Orient Bank (Nig.) Plc. vs. Bilante Int. Ltd (1997) 8 NWLR (Pt. 515) pg. 37 cited by the Claimant is not applicable to the facts of this case, as the said authority does not deal with Master & Servant. As regards whether or not the Claimant was on a frolic of his own and whether the evidence of DW1 is admissible in evidence, it was submitted that the evidence of DW1 is relevant and admissible as she is an employee/agent of the defendant therefore capable of giving evidence on behalf of her master to establish any transaction or incident involving the company, and such evidence would not amount to hearsay. Kate Ent. Ltd. vs. Daewoo Nig. Ltd (1985) 2 NWLR (Pt. 5) Pg. 116. The defendant pointed out that a very vital piece of evidence was contained in paragraphs 5, 6 and 7 of the witness’ deposition which was to the effect that the claimant was not instructed to manually regulate the excavator machine, he was not supposed to be on site when the incident happened, and that what happened was purely an accident due to no fault of the defendant. The defendant submitted that failure of the claimant to cross-examine the defence witness of this vital piece of unchallenged evidence amounts to an admission by the Claimant. Gaji vs. Paye (2003) FWLR (Pt. 163) Pg. 1. The defence urged the court not to rely on speculation, as failure to produce any medical report is fatal to the Claimant’s case. Even if he could not obtain a medical report from Teme Clinic, he could have obtained one from any other hospital, to show his present state of health. Also, the fact of trado-healing centres not issuing receipts for treatment, defence submitted, is irrelevant, as it was never pleaded and no evidence was led to that effect. It was never pleaded that the Claimant spent money at the Oron Trado-Medical Clinic to have incurred N7,665,000 or how and where he incurred that sum. The court was urged to hold that this goes to no issue. From the pleadings, evidence of the parties and the written addresses of counsels, I have formulated the following three (3) issues for determination: 1. Whether the claimant was an employee of the defendant and whether the employment still subsists? 2. Whether the defendant is liable for the injury sustained by the claimant 3. Whether the claimant is entitled to any of the monetary claims. ISSUE 1: WHETHER THE CLAIMANT WAS AN EMPLOYEE OF THE DEFENDANT AND WHETHER THAT EMPLOYEMENT STILL SUBSISITS In relief one (1) of the claimant’s claims against the defendant, he sought a declaration that he was employed by the defendant on 1st November 2010 as a Rigger and that he is still an employee and entitled to be paid his withheld salaries from the month of January 2011 till the date of judgment in this case. He alleged, in support of this claim, that he was an employee of the defendant and that it was in the course of performing his duties that the accident occurred. The claimant contended that he was employed by the defendant as a Rigger on 1st November 2010, evidenced by Exhibit C1 which is an identity card issued to the Claimant by the Defendant. The exhibit contains the position of the claimant as “Rigger”. This exhibit was admitted in evidence without objection by the defendant and the defendant has not denied, anywhere in its pleading or evidence, having issued the exhibit. Infact, DW1 identified Exhibit C1 under cross-examination and stated that “it is the ID card issued to the Claimant, and that it describes his position as a rigger.” She went further to confirm that what is written at the back of the said ID card is that the person whose photograph appears at the back of the card is a staff of the Defendant. The claimant’s counsel, in his written address, has submitted that by virtue of exhibit C1, this court should hold that the claimant was an employee of the defendant. On the other hand, the defendant has alleged that the claimant was not its employee but only a trainee Rigger and had not completed his training at the time of the accident. The defendant tendered the Claimant’s application to be a Trainee through CW1 (claimant), and it was admitted as Exhibit C3. The defendant’s counsel submitted in his written address that its contention that the claimant is not its employee is strengthened by the fact that the claimant did not show any document of employment or how much he earned as salary. From the facts of the case, it is evident that there was a relationship between the parties. Was it that of an employer and an employee? The claimant did not show any letter of employment from the defendant to make the resolution of this issue easy. To determine whether there was an employer/employee relationship therefore, other evidence before the court will be considered. Exhibit C1 shows that as at 1st November 2010, the claimant’s position in the defendant company was “Rigger”. The content of Exhibit C1 is at variance with the defendant’s contention that the claimant was a Trainee. A Contract of Employment may be in writing, oral or can be inferred or implied from the conduct of the parties. See Section 91 Labour Act, Cap L1, LFN 2004. Thus, the claimant need not necessarily prove his employment by a written employment letter. The evidence of the defendant shows that the claimant has been doing some work for the defendant for which the defendant pays “allowance” to the claimant. These acts of the defendant coupled with the issuance of Exhibit C1 to the claimant are sufficient facts from which an employee status can be implied in favour of the Claimant. DW1 testified that the defendant was not an employee because he was only paid allowances and not salary. Any person, who is expressly or impliedly engaged, with or without payment of wages or salary, is an employee. See ORIENT BANK NIG. PLC vs. BILANTE INTERNATIONAL LIMITED (1997) 8 NWLR (PT 515) 37. The evidence of payment of allowance to the claimant is in itself sufficient to imply a contract of employment between the parties. See NIGERIA AIRWAYS vs. GBAJUMO (1992) 5 NWLR 244. I find in the circumstance of this case and I hold that the claimant was an employee of the defendant. Now, does that employment still subsist? The claimant has pleaded and given evidence that his employment has not been terminated by the defendant. The defendant did not specifically traverse this fact but pleaded that the claimant was not an employee. My finding above lays the defendant’s contention to rest. There is no evidence before me to suggest that the claimant’s employment has been terminated. The evidence of the defendant shows that after the accident, the defendant gave financial assistance to the claimant, paid some of his allowances, related with him and even invited the claimant to resume work after his discharge from the clinic. From the evidence on record which remains uncontroverted, it is obvious that a metal is stuck inside the claimant’s thigh. This raises another question whether the Claimant is expected to resume rigging work in that condition, (whether as a trainee rigger or as a substantive rigger). This is likely to generate a negative answer, especially as DW1 had testified under cross-examination that: “I agree that the process of training one to become a rigger is quite tedious.” These acts of the defendant convince me that the parties still maintained an employer/employee relationship. Having resolved this issue, I will now proceed to consider the 2nd leg of relief 1 sought by the claimant, that is his entitlement to be paid his withheld salaries from January 2011 to the date of judgment in this suit. The claimant contended that his salary from January 2011 has not been paid to him. The defendant has admitted that allowance was being paid to the claimant. Whatever title is given to the sum the claimant was receiving before the accident, the Claimant is entitled to be paid such payments accruing from the time of the accident till date. However, it is a settled principle of law that the burden of proving the amount payable in a claim for salaries, emoluments and allowances rests on the plaintiff. See Orient Bank (Nig.) PLC vs. Bilante (Supra). It is also the responsibility of the Claimant at the trial to give sufficient particulars of his claim for salaries, to enable the court calculate. See Benin Rubber Producers Ltd. vs. Ojo 1997 9 NWLR (Pt. 521) 388; See also Unipetrol (Nig.) Plc vs. Bukar (1997) 2 NWLR (Pt. 488) 472. This means that, of the reliefs claimed, the claimant is entitled to only the declaration that he is still a bona-fide employee of the Defendant and as such is entitled to be paid his withheld salaries from the month of January 2011 till the date of judgment in this suit. Since the “salaries” have not been particularized and proved, this Court cannot make any consequential order as to their payment. See generally the Supreme Court decision in University of Jos v. Dr M. C. Ikegwuoha [2013] 9 NWLR (Pt. 1360) 478. I hold in line with the above reasoning which was followed by Hon. Justice B. B. Kanyip in the recent case of Osamota Macaulay Adekunle vs. United Bank for Africa Plc, unreported Suit No NICN/IB/20/2012, wherein judgment was delivered on the 21st day of May 2014. ISSUE TWO: WHETHER THE DEFENDANT IS LIABLE FOR THE CLAIMANT’S INJURY It is the claimant’s case that in the course of his work with the defendant, he and 2 other workers were instructed by a director of the defendant company, a Mr. Hassan, to manually regulate an excavator machine to lift a lister generator into a tipper. While so operating the machine, it failed half way and the lister generator he was lifting fell on him and he was severely injured in the process. It is further the claimant’s case that upon the occurrence of the accident, the defendant abandoned him to his fate and did not assist him to obtain medical care. The claimant consequently wants this court to declare that the defendant has breached its duty of care owed to the claimant. In its defence, the defendant denied these allegations against it and contended that the claimant, aside from the fact that he was not instructed to manually regulate the excavator machine, his duty did not involve him to be at the scene of the accident in the first place. The defendant further contended that the accident resulted from no fault of the defendant who took steps to get medical care for the claimant after the accident. It is trite that every employer owes a duty of care to the employees and a breach of this duty will attract liability to the employer. It is however the duty of the employee who alleges a breach of the duty owed to him to prove the breach. Therefore, the claimant is expected to prove that it is the breach of the defendant’s duty to him that resulted in the accident. In other words, the claimant must attribute the accident to the negligent act or acts of the defendant. In his reply to the defendant’s statement of defence, the claimant pleaded in paragraph 2.2 thereof that the accident resulted from the negligence of the defendant but no corresponding evidence, by way of additional or further witness statement on oath, was given in proof of that fact. As such, the pleading remains unproved, and consequently go to no issue. The consideration of whether the claimant has proved that the occurrence of the accident is attributed to the negligent act of the defendant is therefore limited to the evidence on record before me. The evidence of the claimant germane to the determination of this issue is his testimony that he was instructed by the defendant’s director to manually regulate the excavator machine and “unfortunately” the excavator failed midway while operating it, injuring him in the process. Accident is defined in the Black’s Law Dictionary as an unintended and unforeseen injurious occurrence; or an unanticipated and untoward event that causes harm. An act is said to be accidental when it did not occur as a result of anyone’s purposeful act; or it did not result from a tortious act. The defendant has contended that it is not its fault that the accident occurred. This denial therefore places the burden on the claimant to establish negligence on the part of the defendant. The evidence of the claimant on the occurrence of the accident did not attribute the accident to any act or omission of the defendant nor did the claimant give any particulars of the breach of the defendant’s duty to him that resulted to the accident. Could it be the manual regulation of the machine that caused it to fail? The claimant did not show that to this court. The claimant also failed to show whether the machine can be operated otherwise than manually as to give the inference that had it been so operated, the accident could not have happened. This court cannot therefore speculate as to what happened and the consequence is that negligence cannot be inferred to the defendant. The evidence of the claimant itself lends credence to the fact that the accident was no fault of the defendant as it happened “unfortunately”. This evidence of the claimant goes to show that even the defendant could not have foreseen the accident. Therefore, no blame can be attributed to the defendant. See C & C CONSTRUCTION CO. LTD. V. OKHAI (2003) 18 NWLR (Pt. 851) Pg. 79. The mere fact that the assignment from which the injury resulted was being carried out at the instruction of the defendant’s director is not sufficient to hold the defendant liable for the accident. The claimant must go further to show that there were some acts or omissions from the defendant which caused the accident. In its defence, the defendant had averred that the claimant, at the time he joined the defendant, had one bad leg. The defendant has also stated that the claimant had not completed his training at the time of the accident and that he was not assigned to the work on which he got injured. The claimant denied these allegations in his reply to the statement of defence and during his cross examination he testified that he had completed his training and had been employed as a rigger. He stated further that at the time he applied as a trainee, he had no bad leg. It was in the course of his working with the defendant that he was taken to the site and instructed to operate the excavator. With this evidence of the claimant, he only succeeded in shooting himself in the foot. I would not have hesitated to rebuke the defendant or give certain orders against it for knowingly engaging a physically challenged person in rigging work, whether as a trainee or employed, whether on humanitarian ground or otherwise. The claim to the contrary by the claimant has put paid to my position. Having maintained that he did not suffer any physical disability prior to his employment and he did complete training as a rigger, the claimant has held himself out to be capable and qualified for the work he was instructed to do. In fact, I cannot find anywhere in his pleading and evidence that he complained to the defendant’s director that he could not manually regulate the excavator machine. The claimant is expected to rely on his training and skill to ensure a measure of protection for himself in the course of his duties. It is my view that the claimant has failed to establish that the accident resulted from the defendant’s negligence. I find therefore that the defendant is not liable for the accident that happened to the claimant. ISSUE THREE: WHETHER THE CLAIMANT IS ENTITLED TO ANY OF THE MONETARY CLAIMS. The claimant claims a total sum of N49,065,000.00 from the defendant. He has further sub divided the said sum into 3 heads of claim as follows: a. N7,565,000 as specific amount spent on treatment b. N1,500,000 as the specific amount paid as professional fee to his counsel. c. N40,000,000 as punitive general damages against the defendant for subjecting him to pains, physical impairments and hardships A look at these monetary claims will reveal that they fall into and can thus be classified into two heads of damages viz; special damages and general damages. The claim for money spent on treatment and the professional fees are categories of special damages. See NWAJI vs. COASTAL SERVICES (2004) 11 NWLR (Pt. 885) 552. The claim for N40,000,000 is a claim under general damages. Special damages are not granted as a matter of course. To be entitled to it, the claimant must specifically plead the claim and then strictly prove same by credible evidence. The claimant is expected to give specific particulars forming the basis of his claims in his pleading and at trial adduce cogent evidence in line with his pleading to prove the claim. See USMAN vs. ABUBAKAR (2001) 12 NWLR (Pt. 728) 685. I have seen that the statement of claim of the claimant and his evidence have fallen short of the requirements. The sum allegedly spent on treatment and the sum paid to counsel was neither pleaded nor particularized anywhere in the claimant’s pleadings. Same goes for the evidence of the claimant. He did not, anywhere in his testimony, mention any sum of money he had expended or paid to his counsel. Particulars such as the breakdown of the expenses specifying the items and the manner for which they were incurred were also not supplied by the claimant in any of his pleadings or evidence. In his written address, counsel to the claimant submitted in paragraph 4.31 thereof, that the failure of the defendant to traverse pleaded specific damages should be deemed an admission and no further proof is required. With respect to counsel, before the non-traverse can be deemed an admission, the claimant must have specifically pleaded and particularized the claim in his pleading. In this case, save for where monetary claims were contained in the reliefs sought in this suit, the claims were neither pleaded nor its particulars given in any paragraph of the statement of claim or reply. The requirement for particularization of special damages is to give the other party notice of details and circumstances for which the special damages had arisen or the basis for which they have been calculated or arrived at. See REAN PLC vs. ANUMNU (2003) 6 NWLR (Pt. 815) 52. In the absence of this notice in the pleading of the claimant, there is nothing for the defendant to traverse. Testifying in line with his pleading, the claimant gave in evidence the fact that the defendant took him from the local trado-medical outfit where he received local first aid treatment to Teme Clinic where he received treatment until his discharge. The pleading and evidence of both parties are agreed that the service of Teme Clinic is free. That being the fact, the claimant has a duty to show how the sum he claims for money spent on treatment accrued or was incurred. He failed to do this. The claim for special damages is therefore not proved and it is hereby dismissed. By its nature, general damages are the pecuniary compensation which the law implies in favour of a person who has suffered loss or injury through the unlawful act or omission of another. See USMAN vs. OWOEYE (2003) 9 NWLR (Pt. 828) 221. General damages flow from the wrongful act of another and it is meant to compensate for the injury sustained and are not meant to be punitive. For the claimant to be entitled to general damages, he must have successfully proved that he suffered the injury, the result of his pains, impairments and sufferings, as a result of the negligence or breach of duty of the defendant. I have resolved in issue two that the claimant has not been able to establish liability for his injury on the defendant. I make the same finding on this issue. The claimant’s claim for punitive/general damages fails and it is hereby dismissed. In relief No. 4 of the statement of claim, the claimant sought an order of this court to direct the defendant to take him to a foreign specialist hospital for further treatment. In as much as I sympathize with the claimant’s unfortunate condition, I do not see how I can grant the relief. The claimant has not shown that no hospital in this country can attend to his medical needs. However, the question that arises is whether the defendant’s moral duty of care to the claimant still subsists. I will answer this in in affirmative, having earlier held in this judgment that the claimant is still an employee of the defendant. I am not unmindful of the defendant’s gesture of offering to assist the claimant to access further medical treatment when funds are available. The defendant pleaded in paragraph 17 of its Statement of Defence that the Claimant was advised to be patient, that he would be assisted as soon as funds were available. DW1 also testified to the same effect. This to my mind is an acknowledgement by the defendant of the moral duty of care owed to the claimant to provide medical care or attention which they had earlier exhibited by taking the claimant to Teme Clinic. Evidence on both sides agree that the claimant still requires surgery to remove a metal from his leg. Both CW1 and DW1 also testified to this effect. That indeed is the reason behind the defendant’s offer contained in paragraph 17 of the statement of defence referred to above. In view of the above, and in line with the equitable jurisdiction of this court as contained in Section 13 of the NIC Act 2006which empowers this court to administer law and equity concurrently, it is my view that this is one of those cases where the equitable jurisdiction of the Court, which enjoins this Court to do away with the rigidity of the common law in preference for the rules of equity (see section 15 of the National Industrial Court Act 2006), must necessarily be called to aid and assuage the hapless employee, and the provisions of Section 19(d) of the National Industrial Court Act 2006 can be invoked. The said section 19(d), dealing with the power of the Court to make certain orders, provides that the Court may and where necessary make any appropriate order, including “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 hear”. The Court can make award for such damages or compensation, even when it cannot point out any measure of assessment except what it can hold as the opinion of a reasonable man. See the case of UBN Plc. v. Onuorah & Ors. [2007] LPELR-11845 (CA). In the circumstance, compensation of N500,000.00 is appropriate and reasonable, and I so hold. In the circumstance and for all the reasons given, and for the avoidance of doubt, I hereby make the following declaration and order: 1. A declaration that the Claimant remained an employee of the defendant up till the date of this judgment, and as such is entitled to be paid his withheld salaries and/or allowances from the month of January 2011 till the date of this judgment. 2. In line with the provision of Section 19(d) of the NIC Act 2006, compensation of N500,000.000 (Five Hundred Thousand Naira) only, is hereby awarded to the Claimant, to enable him obtain medical care to wit surgery to remove metal from his leg. 3. The judgment sum shall be paid to the Claimant within 30 days from the date of this judgment. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe