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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP……HON. JUSTICE B.A. ADEJUMO, OFR (PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA) DATE: 11TH FEBRUARY, 2015 SUIT NO. NICN/LA/471/2012 BETWEEN: 1. AMINA HASSAN………………………CLAIMANT/RESPONDENTS AND 1. AIRTEL NETWORKS LIMITED……1ST DEFENDANT /APPLICANT 2. BEZALEEL CONSULTING………..2ND DEFENDANT RESPONDENT REPRESENTATIONS: R. JAGUN ……………………………… FOR 2ND DEFENDANT PPLICANT RULING This case was commenced on 19th September, 2012 via a complaint. This complaint was accompanied with a Statement of Fact. The reliefs contained in the Statement of Facts are as reproduced below: WHEREOF THE CLAIMANT CLAIMS JOINTLY AND SEVERALLY AGAINST THE DEFENDANTS AS FOLLOWS: (i) The sum of N150, 000,000.00 (One Hundred and Fifty Million Naira) being damages for permanent impairment and loss of ability to work with interest at 22% per annum post judgment. (ii) Special Damages in the sum of N650, 000.00 (Six Hundred and Fifty Thousand Naira only) being Claimant’s solicitors fees in respect of this action. (iii) Cost of this suit. Against this suit the 1st defendant/applicant filed a Notice of Preliminary Objection [NPO] dated 13th day of March, 2014. This NPO is accompanied with a Written Address. The grounds of the NPO are as listed hereunder: 1. This suit as presently constituted is premature and incompetent on the ground that the Claimant has failed to comply with the provisions of section 4 (1) & (2) of the Employees Compensation Act 2010 before instituting this action. 2. The Claimant lacks the locus standi to institute and maintain this action in view of the provision of section 12 (1) & (6) and section 55 (4) of the Employees Compensation Act 2010. 3. In the circumstance of the above, this Honourable Court lacks the jurisdiction to entertain this suit. It is necessary to state that the NPO was originally, on the 28th April 2014 adjourned to 3rd June, 2014 for hearing in the presence of the counsel to the claimant. It is instructive also to note that when this NPO came up as adjourned on the 3rd June 2014, neither the claimant nor her counsel was in Court; and as a result, the NPO was adjourned to 6th June 2014 with the directive that hearing notice be issued on the counsel to the claimant. Yet, on the 6th June, 2014 when the NPO came up again, the counsel to the claimant did not show up; and again, the Court, in an attempt to accommodate the claimant, ordered that the counsel be again served with another hearing notice for appearance on the adjourned date of 4th July, 2014 for the hearing of the NPO. The NPO however came up next on the 11th of November, 2014. On this date, as usual, neither the claimant nor her counsel was in Court. As a result, the NPO was again adjourned to 3rd December, 2014 for hearing with an order that the counsel to the claimant be issued with a hearing notice. The NPO came up however on the 2nd December, 2014 for hearing and the counsel to the claimant was not in Court as usual. The Court thereby heard the NPO. The counsel to the 1st defendant/applicant adopted his written address in support of the NPO, in the absence of both the claimant and her counsel. Counsel to the 2nd defendant/respondent did not object and did not file any address. Let me now summarise the written address of the counsel to the 1st defendant/applicant in support of the NPO. In the written address, counsel to the applicant formulated a lone issue thus: Whether having regard to the facts and circumstance of this case this Honourable Court lacks the jurisdiction to entertain this suit. [sic] Citing Christaben Group Ltd v. Oni (2008) 11 NWLR (Pt. 1097) 84 at 105; Madokolu v. Nkemdilim (1962) 2 SCNLR 341; Alao V. African Continental Bank Ltd (2000) 6 SC (Pt. 127); and Araka v. Ejeagwu (2000) 12 SC (Pt. 199); counsel submitted that jurisdiction is the basis upon which a court tries any case; and that, a court is competent: when its panel is competent, when the subject matter of the suit is within its jurisdiction, and when there is no feature in the case militating against the court’s jurisdiction. Counsel on the basis of the above authorities argued that this case is premature and the claimant lacks the locus standi to institute it. Counsel submitted that the prematurity arose from the fact that the claimant, as an employee, failed to comply with the mandatory precondition of giving notice of his alleged impairment to the employer within 14 days as enjoined by section 4 (1) of the ECA 2010 [ECA] and also failed to comply with the mandatory preconditions of filing the prescribed application within 1 year or 3 years next for the injury complained of, as the case may be, as stipulated in section 6 (1) – (3) of the ECA 2010. Counsel argued that the law is that failure to comply with an administrative precondition, as in this case, is always fatal to a case. Counsel also submitted that the claimant could only get compensation from the Board and not the 1st defendant directly and that her failure to file her application as prescribed within 1 year is fatal to the case. On these submissions, counsel relied on Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 and Orakul Resources Ltd v. NCC (2007) 16 NWLR (Pt. 1060) 270 at 307. Counsel subsequently maintained that the claimant lacks locus standi to institute and maintain this action as rights of action are now vested in the Board by virtue of section 12 (1) & (6) of the ECA 2010. Counsel also argued that the claimant can only approach this Court by way of appeal against any decision of the Board by virtue of section 55 (1) & (4) of the ECA 2010, which is not the case herein. Counsel, on the strength of the above, submitted that this Honourable Court thereby lacks jurisdiction to entertain this Action. Finally, counsel urged this Honourable Court to decline jurisdiction and strike out this case. There being no written address from the counsel to the claimant against this NPO, I am automatically left with the one filed by the applicant. However, that does not relieve me of my duty to cross-check this with the relevant facts of the case, which at this stage, is the complaint and the Statement of Facts, alongside the provisions of all relevant laws, particularly the ECA 2010 and relevant authorities. In effect, it means I must make my personal research before upholding or turning down the written address in support of the NPO. In effect, it does not mean willy-nilly, I must uphold the address of counsel to the 1st defendant in the absence of opposition from the claimant. I have a duty to uphold the law; and counsel’s address is just assistance to the Court, in doing this sacred duty. I think the Supreme Court in Ogunsanya v. the State [2011] LPELR – 2349 [SC] pp. 44 – 45, paras. G – C sufficiently settles this point when it held that: The main purpose of an address is to assist the court, and is never a substitute for compelling evidence. Failure to address will not be fatal or cause miscarriage of justice. This is so because whether counsel addresses a court or not the court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment. In the absence of address by counsel the trial was fair. To this I now turn. I must say that I have therefore most painstakingly studied all processes relevant to this application, the written address of the applicant alongside all the authorities cited. In trying to resolve the NPO, I adopt the issue formulated by the counsel to the applicant, to wit: Whether having regards to the facts and circumstances of this case this Honourable Court has the jurisdiction to entertain this suit? In tackling this issue, two questions prop up their heads. They are: whether the action is premature; and whether the claimant lacks locus standi to bring the action? I shall deal with the first question first. In Ainabebholo v. Edo State University Workers Farmers Multi-Purpose Cooperative Society LTD (2006) LPELR – 6133 (CA) pp. 28 – 29, paras. G – C, the Court of appeal, relying on Supreme Court’s decisions, expatiated on the issue thus: The law is settled that where a party fails to satisfy a condition precedent to the institution of an action, the action instituted by a party is premature and consequently incompetent. See OMALIKO V. AWACHIE (2002) 12 NWLR (Pt. 780) 1. It is only logical that the remedy prescribed by law must be exhausted before recourse to the law court. See also AJIBI VS. OLAEWE (2003) 8 NWLR (Pt. 822) 237. However where such a decision is said to be final and conclusive leaving the aggrieved party with no option of legal redress to a court of law thereby curtailing his constitutional right of access to a court of law, then such a provision is to say the least unconstitutional. In Owoseni v. Faloye (2005) LPELR – 2856 (SC) p. 33, paras. A – C, the Supreme Court clarified the issue thus: It is settled law that where the legislature clearly stipulates the procedure to be followed when an act or a decision of an authority is challenged, the party aggrieved can only challenge the decision successfully in the manner laid down in the enabling statute... Furthermore, where an aggrieved party has not resorted to the remedies statutorily available to him on the infringement of his alleged right by the prescribed authority, such a party has therefore not exhausted the remedies available to him and has in consequence not satisfied the preconditions for access to court. It has become abundantly clear from the above quoted cases that where a law prescribed a condition precedent to be followed before an aggrieved party could approach a court of law, that condition must be followed for the action to be competent. Where it is not followed, the action is immature and at the same time incompetent. Now section 4 (1) & (2) of the Employees Compensation Act provides: 4 (1) In every case of an injury or disabling occupational disease to an employee in a workplace within the scope of this Act, the employee, or in case of death the dependent, shall within 14 days of the occurrence or receipt of the information of the occurrence, inform the employer by giving information of the disease or injury to a manager, supervisor, first-aid attendant, agent in charge of the work where the injury occurred or other appropriate representative of the employer, and the information shall include: (a) The name of the employee; (b) The time and place of the occurrence; and (c) In ordinary language, the nature and cause of the disease or injury if known. 4 (2) in the case of a disabling occupational disease, the employer to be informed of the death or disability is the employer who last employed the employee in the employment to the nature of which the disease was due. Section 6 of the ECA also provides thus: 6 (1) An application for compensation shall be made on the form prescribed by the Board and shall be signed by the employee or the deceased employee’s dependent. (2) Unless an application is filed or a determination is made within one year after the date of death, injury or disability arising from an occupational accident or disease, no compensation shall be payable, except as otherwise provided in sub-section (3) of this section. (3) If the Board is satisfied that there exist special circumstances which precluded the filing of an application within one year after the date of occurrence, the Board may pay the compensation provided by this Act if the application is filled within 3 years after that date. From the provisions of section 4 (1) & (2) of the ECA, it appears that the employer must be informed by the concerned employee or his representative, in case of death, of any occupational hazard suffered by an employee within 14 days of the occurrence. From section 6 (1) of the ECA, it also appears that thereafter an application for compensation shall be made on the prescribed form of the Board created by the ECA personally signed by the employee concerned or his representative, in case of death; and this application must be made within one year of the occurrence complained of to be valid. Now, it would appear that where there are NO preconditions to be met, a claimant can approach courts of law directly without any interloping administrative tribunal. So, in deciding prematurity of actions, one must examine the statute in question to see if there are inescapable preconditions to be met before institution of court actions. And the law is that in the construction of a particular statutory provision, recourse must be made to all the provisions of the statute in question: that is, the statute must be considered as a whole. This leads me to a consideration of the provisions of section 12 (1) & (2) of the ECA. It provides thus: The provisions of this Act are in lieu of any right of action, statutory or otherwise, founded on a breach of duty of care or other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which an employee, dependent or member of the family of the employee is or may be entitled against the employer of the employee, or against any employer within the scope of this Act, or against any employee, in respect of any death, injury or disability arising out of and in in the course of employment and where no action in respect lies. [Underlining mine for emphasis] Section 12 (2) provides that: The provisions of sub-section (1) of this section shall apply only when the action or conduct of the employer, the servant or agent of the employer or the employee, which caused the breach of breach of duty, arose out of and in the course of employment within the scope of this Act. These provisions, it would seem, bring entirely different coloration into the hitherto tenor of the ECA. Section 12 (1) says the provisions of the Act [that is the ECA] are “in lieu of any right of action” which the complainant might have besides the compensations provided under the ECA; in a situation where the cause of action arose out of breach of duty of care or other cause of action. The phrase “in lieu of” has been defined by the Oxford Advanced Learner’s Dictionary (7th Edition, 2006) p. 852, as “instead of”. This ordinarily signifies a sort of alternative. When something is alternative to something, it means either could be employed. And that is exactly the sense in which the Oxford Dictionary uses the phrase in its usage examples: “They took cash in lieu of the prize they had won.’ ‘We work on Saturdays and have a day off in lieu during the week”. The Oxford examples signify choices from the owners of the rights involved. It means the original rights or duties are not abrogated but that the owners can elect to trade them off by choosing the alternatives. It would appear clear that this is precisely the sense in which this phrase has been employed herein. That this is so is completed by the concluding phrase of section 12 (1) which says the provisions of the ECA shall only apply “…where no action in respect lies”. This phrase can only mean one thing, and that is, the provisions of the ECA would only apply where the complainant has not already instituted an action on the subject matter of his complaint. Where s/he has, s/he must go on with his/her action in court. It means when one alternative is chosen, the chooser automatically loses the right to the other. My view above seems to have been reinforced by the learned author [Femi Aborishade] of the article “Reflections on Employees’ Compensation Act, 2010” published in Themes on the New Employees’ Compensation Act, ed. Bimbo Etitlola, and published by Hybrid Consult (1st Edition, 2013) p. 35: Section 12 of the Employees’ Compensation Act, 2010 provides that the injured workman or his dependent(s) may either: a) Bring an action at common law for damages where death, disease or injury suffered gives rise to an action for negligence against the guilty party, who may be the employer, another employer of a common employer or some other person, other than the employer, or b) Claim compensation against the employer where the injury arises out of and in the course of employment. But the choice of action is dependent on the condition that the employee is not entitled to recover both damages and compensation (S. 12 sub-section (1), (2) and (3) of the Act); he can only choose one of the two. A close reading of the Statement of Facts particularly paragraphs 20, 25 and 30 would clearly show that the claimant is alleging dereliction of duty of care owed to her by the defendant. Thus, this action is based on negligence of duty of care to provide safe working environment or equipment and prompt medical care in the case of an injury sustained in the course of work. The claimant had also alleged that the instruction of the medical experts to whom she was sent by her employer that there is need for further expert examination to arrive at the exact level of damage has up till now not been attended to by the defendants. It follows that this action meets the requirements of section 12 (1) & (2) of the ECA which give the claimant a right of choice of approaching the court straight to ventilate her grievances once the action is connected with failure of duty of care on the part of the defendant and arose in the course of work. The NPO which is premised on sections 4 and 6 of the ECA is plainly oblivious of the provisions of section 12. The NPO could only hold if the claimant intended to pursue compensation under the Act. Where the claimant does not intend to pursue compensation under the Act and her action is based on common law simplicity or negligence, and the injury in issue occurred during the course of work, the claimant is at liberty to institute an action directly against the tortfeasors without coming under the ECA. The claimant does not come under the purview of the ECA. The claimant has not at any place in her Statement of Facts referred to the Employees’ Compensation Act nor did she hinge her action on payment of compensation via the ECA. All she did was to claim for damages arising from the alleged negligence of the defendants. It thus come out that the provisions of sections 4 and 6 or any other provisions of the ECA under which the NPO was brought are inapplicable to the action of the claimant. This being so, the wind has been taken out of the sale of the NPO and the arguments of counsel to the applicant. The NPO has thus been shown to be misconceived. Thus, the present action is not premature. The jurisdiction of the Court remains clearly intact. The NPO therefore lacks merits and is accordingly dismissed. The matter shall consequently proceed to trial on the merits. I award no cost. ……………………………………….. Hon. Justice B. A. Adejumo, OFR [MCIArb, GFSM, CFIAR, FCIArb, FNILS] President, National Industrial Court of Nigeria