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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. B. KANYIP, PHD DATE: FEBRUARY 26, 2015 SUIT NO. NICN/LA/73/2011 BETWEEN Ola Suleiman - Claimant AND Hongzing Steel Company Limited - Defendant REPRESENTATION Chief Gabriel Ojumah, and with are A. A. Alaka. A. E. Okeh and Miss E. O. Anah, for the claimant. U. U. Okoro Snr, for the 1st defendant. A. N. Mekwunye, for the 2nd defendant. JUDGMENT This is a suit commenced on 25th July 2011 by way of a complaint and accompanied by the statement of claim, list of witness, list of documents and copies of the documents. The witness statements on oath were later filed. These originating processes suffered several amendments. By the final amended originating processes as filed on 1st November 2012, the claimant is seeking the following reliefs from this Court – 1. The sum of N5 Million (Five Million Naira) for general damages as a result of negligent act of the defendant for using equipment and machinery in its company without providing safety measures while working for the defendant, that has caused serious body burns to the claimant which will inevitably result to a body scars and emotional trauma and consequently affect the dignity of his person. 2. The sum of N400,000.00 (Four Hundred Thousand Naira) only being the cost of treatment after being abandoned by the defendant as a result of the injuries he suffered while working for the defendant. 3. A declaration that the claimant is entitled to the payment of compensation by the defendant as a result of the negligent act of the defendant that eventually lead to the injuries suffered by the claimant while working for the defendant. The 1st defendant had entered appearance and filed its defence processes; but then filed a motion to join Zenith General Insurance Co. Ltd as the 2nd defendant. This was granted by this Court’s order of 8th August 2012. By its amended defence processes (statement of defence and counterclaim, witness statement on oath, list of documents and copies of the documents), the 1st defendant denied liability and counterclaimed against the claimant for the following reliefs – a) The counterclaimant claim the sum of N500,000.00 paid to his solicitor to defend the unnecessary suit at the Federal High Court Lagos in Suit FHC/L/CS/845/10 between Ola Suleiman v. Hongxing Steel Co. Ltd. b) The counterclaimant claims the sum of N500,000.00 paid to his solicitor to defendant this suit. c) The counterclaimant claim the sum of N20,000.00 being the cost awarded to the defendant in Suit No. FHC/L/CS/845/10 between Ola Suleiman v. Hongxing Steel Co. Ltd at the Federal High Court sitting in Lagos Nigeria. d) Whereupon the counterclaimant claim from the plaintiff the total sum of N1,020,000.00 Naira. The 2nd defendant filed its statement of defence and reply to the 1st defendant’s defence dated 17th September 2012 but filed along with list of witness and witness deposition on 18th September 2012. In reaction, the 1st defendant filed on 17th October 2012 its reply to the 2nd defendant’s statement of defence. At the trial, the claimant gave evidence on his behalf as CW1; and called one additional witness as CW2, Abraham Overare, the Managing Director of Overare International Ltd whose main object is supplying and installation of safety materials, and who was employed by the claimant to investigate the incident. For the defence, the 1st defendant though filed its defence was not in court to open its defence on the day appointed for it. The Court accordingly deemed that it no longer was keen in opening its defence and so foreclosed it. A subsequent application to re-open the case was rejected by this Court on 16th December 2014 and a considered ruling was given same date. The 2nd defendant who was brought into the matter by the 1st defendant called one witness as DW, Senior Manager Claims Department of the 2nd defendant. The case of the claimant is that he was employed on 15th November 2009 by the 1st defendant. The 1st defendant is a Chinese owned Private Limited Company registered under the Laws of the Federal Republic of Nigeria, whose primary business is manufacturing of steel. On 27th April 2010, the claimant while working for the 1st defendant got burnt by the casting he was working on, which exploded and burnt his face, chest, tummy region, down to his scrotum, parts of his thighs and arm. The claimant went on that before being taken to the hospital by the 1st defendant for first medical attention, he was beaten up by the agent of the 1st defendant, one Mr. Lee, on the ground that the claimant had wasted company’s materials. The claimant without receiving proper and adequate medical attention required for such degree of burns was discharged from the hospital; and was informed to be coming from home for further treatment on the instruction of the 1st defendant. Despite this, the defendant refused to pay up the medical bills for his further treatment. The claimant continued that he requires further medical attention by more specialized personnel but not financially buoyant to afford such. That the scars on his body are becoming harder on daily basis, and as such urgent and specialized medical attention is needed if the affected parts are to be restored. That he does not have any means of livelihood presently due to the severity of the injuries he sustained while working for the 1st defendant. That he presently cannot continue working with either the 1st defendant or any other employer. That on the advice of his lawyer, that he contracted safety personnel in person of Abraham Overare to visit and investigate the accident, and was given oral report that if safety equipments were provided, the accident would have been prevented. 2ND DEFENDANT’S SUBMISSIONS The 2nd defendant disputed the claim of the claimant as well as the 1st defendant’s defences by denying vehemently and in the strongest terms possible paragraphs 7, 8, 9, 10, 11, 12 and 13 of the statement of defence contending that – a) The 1st defendant did not meet his obligation on the insurance policy No. ZG/0002/09/GP/MR. b) There were terms and conditions attached to the said insurance policy which both parties accepted and agreed to as essential factors for the validity of the policy. c) The 2nd defendant denies being under obligation to compensate the claimant and also not aware of any accident or injury to the insured. d) The suit is frivolous, misconceived and constitute abuse of court process and should accordingly be dismissed with substantial cost. To the 2nd defendant, the claimant’s suit is based on negligence and compensation for the negligent act of the 1st defendant which occasioned body injuries to the claimant and also medical expenses. The 2nd defendant, however, denied being under obligation to compensate the claimant, not being aware of any accident or injury (if any); and the terms and conditions attached to the said insurance policy which both parties accepted and agreed to as the essential factors for the validity were not complied to. The 2nd defendant framed three issues for the determination of the Court, namely – 1. Whether having regard to the claimant’s pleadings, the 2nd defendant is a proper party to be sued and whether a cause of action has been disclosed against the 2nd defendant on record. 2. Whether having regard to the facts and circumstance of this case this Court is not bound to decline jurisdiction and strike out the name of the 2nd defendants from this suit. 3. Whether having regard to the circumstance of this case the present suit as presently constituted is not frivolous, vexations and an abuse of the court process. Regarding issue 1, the 2nd defendant submitted that the evidence of the claimant and his pleadings before this Court shows clearly that there was no cause of action against the 2nd defendant and nowhere in the pleading was the 2nd defendant’s name mentioned and no reliefs against it is sought for. Therefore, the joining of the 2nd defendant was not proper and it ought not to be made a party. To buttress this submission, the Court was referred to all the paragraphs of the claimant’s pleading and written statements of oath of the two witnesses, none of which mentioned the 2nd defendant and no relief was claimed by the claimant against it. The 2nd defendant then urged the Court to hold that the 2nd defendant is not liable for any relief and since there is no cause of action against him, it should be discharged from the suit with substantial cost awarded in its favour. To the 2nd defendant, the claimant has not even proved his claim of negligence against the defendants. That even the evidence of the 2nd defendant is uncontradicted and unchallenged. That it is trite law that the Court is bound to accept it, referring to Niger Construction Ltd v. Chief A. O. Okugbemi [1987] 4 NWLR (Pt. 67) 4. That the evidence of DW (Mr. Chris Owuamanam) stands unwavering and the claimant did not cross-examine him, which goes to the fact that they are the truth and the law, citing Miller Bukley Nig. Ltd v. Mrs. Felicia Akura [1986] 5 NWLR (Pt. 44) 752. That the 1st defendant who brought in the 2nd defendant having abandon his defence and evidence goes to no issue in law and also stands struck out and unnecessary. On issue 2, the 2nd defendant submitted that having regard to the facts and circumstance of this case, this Court is bound to decline jurisdiction in joining the 2nd defendant as a party in this suit. That it is trite law that for a Court to exercise jurisdiction over a matter, the proper parties must be before the Court for it to properly determine this rights and obligation arising from the cause of action, citing Cotecna Int’l Ltd v. Churchgate Nig. Ltd [2011] If WRN 1 at 40 (incomplete citation), Ehidimhen v. Musa [2000] 8 NWLR (Pt. 669) 540 at 569 and Ayorinde vs. Oni [2000] 3 NWLR (Pt. 694) 348 at 367. To the 2nd defendant, going by the pleading of the claimant and the entire documents annexed to the claim to be relied upon, there can be no doubt that the 2nd defendant is not a proper party to be sued in the instant case. That the Black’s Law Dictionary (7th edition) defines cause of action as a group of operative facts giving rise to one of more bases for suing; a factual situation that entitles one person to obtain remedy in court from another person. That the Supreme Court in Rinco Construction Co Ltd v. Veepee Industry Ltd & US [2006] 17 WRN 119 at 122 defined the term cause of action to mean: the entire set of circumstances giving rise to an enforceable claim, it is in effect that the fact or combination of facts which gives rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaint; and the consequent damage. The 2nd defendant went on that going by the entirety of the facts pleaded in the claimant’s pleading in the instant case, the claimant failed to show the facts constituting the infraction of the claimant’s legal right by the 2nd defendant on record. That it is now well settled principle of law that where parties to a contract have agreed to summit to arbitration, if there is any dispute arising from the contract between them, the Court should give regard to the contract by enforcing the arbitration clause, citing Owners of the M. V Lupex v. N.O.C.S Ltd [2003] SC (Pt. 11) 62. That in Onward Enterprises Ltd v. MV Matix & ors [2009] 4 WRN 103, the contract of affreighment contained an arbitration change. The appellant who was the plaintiff before the lower Court took out a writ against the respondent and simultaneously with the issue of the writ of summons aforesaid also filed a motion ex-parte for the arrest and detention of MV Matrix. “The respondent by a motion on notice sought to stay proceedings pending reference to arbitration in load on which said motion was granted by the trial court”. The decision of the trial Court was affirmed. The Court of Appeal, Per Nwodo, JCA at pages 129 – 130 held thus – A party to an arbitration agreement cannot both approbate and reprobate, having agreed to settle international commercial dispute by arbitration, he cannot proceed to the regular Court and commerce resolution of the dispute within the purview of the agreement to submit to arbitration unless he can show strong reasons to be permitted to be discharged from that agreement and thus be allowed to settle the dispute by regular Court proceedings instead of arbitration. “The 2nd defendant then submitted that in the instant case, there cannot be doubt that the entering of the 1st defendant case is founded on an alleged insurance policy agreement dated duty executed, the parties’ duty submitted to arbitration pursuant to the Arbitration and Conciliation Act of Nigeria”. It is contention of the 2nd defendant that the resort to litigation and the consequential prosecution by the 1st defendant in this case amounted to “jumping the gun” or putting the cart before the horse, instead of referring any despite if any to arbitration in accordance with the agreement voluntarily entered into with 2nd defendant, citing D.S.H.C. v. Ogunsola [2000] 14 NWLR (Pt. 687) 431 at 444. To the 2nd defendant, the issue of jurisdiction is crucial to a proceeding, it affects the competence of the Court to adjudicate in a matter and as such any defect as to the competence is not merely intrinsic to but is rather extrinsic to the adjudication, citing A.G Lagos State v. Dosunmu [1989] 3 NWLR (Pt. 111) 552. That “the defect in the competence or jurisdiction of a Count in total to the whole proceeding, which would amount to a nullity no matter how well conducted”, citing Madukolu v. Nkemdilim [1962] 2 SCNLR 341. The 2nd defendant then submitted that this Court had no jurisdiction to have ordered the 2nd defendant to be joined as a party in the proceeding since the condition precedents to the institution of the support of the suit have not been fulfilled, referring to O.S.H.C. v. Ogunsola (supra) at page 44, where “the following circumstances have been held to be a condition” – 1. A stipulation which requires that failure to perform an obligation is null and valid. 2. Where the performance of an obligation is made the basis of the contract, the stipulation is constructed as a condition. 3. A stipulation which relates to the matters that go to the root of the whole contract will be constructed as a condition. “this is Bernard v. Faber (1891) 16 BD 340 Bowen, LJ stated that if a promise is one which goes to root of the whole engagement and transaction, then it becomes a condition”. That once a stipulation is expressed as a condition, the Court will construe it as such. A stipulation may be put in the policy, which is intended to be a condition precedent. The time which the condition will operate is sometimes important. The parties may intend a condition to be fulfilled before the contract comes into force. “In such a situation, there is no contract yet in force, until the fulfillment of the condition precedent to liability after the contract of insurance has been concluded”. Regarding issue 3 i.e. whether having regard to the circumstance of this case the present suit as presently constituted is not frivolous, vexations and an abuse of the court process, the 2nd defendant submitted that it is. That there is no definite term of what amount to an abuse of court process. The term abuse has been defined by the appellate courts variously to mean improper use of judicial process, referring to “Shodipo v. Lemin Kainem & ors [1992] and Saraki v. Tokoye [1992] 9 NWIR (Pt. 264) 169”, and urging the Court to hold same. To the 2nd defendant, “the 2nd dependent ought not to be made a party by the claimant as privity of contract and that the 1st defendant can only join the 2nd defendant as a third party proceedings not being made the 2nd defendant as in the instant case”. This amounts to an abuse of court process. The 2nd defendant continued that in an action for damages for personal injuries caused by negligence, the plaintiff cannot join the defendant’s insurer as a party, there being no dispute between the plaintiff and the insurer; but the insurer may be joined at his own instance where his interests may be prejudicially affected as by a default judgment against the defendant insured and at his own instance or the defendant’s where there is an issue touching the contract of indemnity in the policy, as where the defendant apprehends a dispute between himself and the insurer as to the insurer’s liability under the policy, citing “New India Assurance Co. Alegbe v. Sunmonu [1971] 1 NCLR 320 at 326 – 328”. That a policy of insurance is not the contract of insurance arising from the agreement reached by the parties but merely evidence of that contract. In other words, an insurance contract is valid and effective even though there is no policy issued; conversely if any of the basic requirements is not met and a policy is issued, the insured will not be legally bound. However, that once the proposal is signed, the assured is taken to have accepted the terms stipulated in the policy. The policy is a conclusive documentary evidence of an insurance contract in existence between the insurer and the insured. It is, therefore, immaterial that the insured had never agreed or know the terms of the policy. The 2nd defendant went on that “it is a condition precedent to the competence of the Court to entertain the suit where there is non-compliance with the stipulated condition for selling a legal process in motion any suit instituted in contravention for that reason lacking in jurisdiction power to entertain it”. That under the provisions of insurance law, the insurer becomes a party to the action vis-à-vis the plaintiff whereas in a third party proceedings, the insurer is a party only vis-à-vis the defendant who joined him with the leave of court. The right enjoyed by the injured to join the insurer is limited to cases where the insured claims indemnity, referring to Ogini v. Motor & Henerd Ins. Co. of Nig. [1979] 3 LRN 63. That it is an established and age long doctrine of contractual agreement that only a party to a contract can sue or be sued on it or can enjoy the benefit of the contract. This common law doctrine of privity of contract has been made applicable in Nigeria law through several judicial decisions. In an insurance contract, the common law principle prevents a third party from making a claim in law and in equity against the insurance company. He cannot make a claim against the insured tortfeasor as well as direct the insured to pay over to him the sum of money received under the insurance policy, referring to Liberty Ins Co. Ltd v. John [1996] 1 NWLR (Pt. 423) 192 and Ekrobe v. Efe Izomor II [1993] NWLR (Pt. 307) 588. Finally, the 2nd defendant submitted that where the action of the claimant failed like the instant case then the Court should dismiss same with substantial cost. CLAIMANT’S SUBMISSIONS In reaction, the claimant framed four issues for the determination of the Court, namely – (1) Whether the 1st defendant owes a duty to the claimant. (2) Whether the 1st defendant in the circumstance or facts of this case was negligent and as such breached the duty owed to the claimant. (3) Whether the claimant has suffered injury as a result of the 1st defendant’s breach of duty owed to the claimant as his employer. (4) Whether the claimant is entitled to his claims and reliefs against the 1st defendant. Regarding issue (1), the claimant contended that it is trite law 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 contract of employment or implied into the terms, even though not expressly stated. That an in-depth look at the nature of the claimant’s employment (casual worker) reveals the absence of these duties which the 1st defendant (employer) owe to the claimant and as such the 1st defendant’s duties to the claimant will be implied into it. The 1st defendant as employer owed a duty to the claimant as its employee. Thus, the duty which the 1st defendant owed the claimant is twofold: (i) common law duty and (ii) statutory duty. Where an employer breached either of these duties and the employee sustains injury in the course of his employment as a result of such breach, the employer is liable to compensate the injured employee by way of damages. On the common law duty of employer to employee, 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 for personal injuries suffered as a result of an allegedly unsafe work system. The House of Lords through Lord Wright while holding that the plaintiff can recover damages from his employer, stated thus – The obligation is fulfilled by entrusting its fulfillment to employee, even though selected with due care and skill the obligation is threefold, the provision of competent staff of men; adequate materials; a proper system and effective supervision. I think the whole course of authority constantly recognizes a duty which rest on the employer to take reasonable care for safety of his workmen, whether the employer be an individual, a firm or a company and whether or not the employer take any share in the conduct of the operation. That from the above common law position, an employer’s duty to an employee is to provide the following: competent staff of men; safe and suitable place and tools of works; and proper system and effective supervision of work. Regarding the provision of competent staff, employers (1st defendant) are under an obligation to ensure that the people they employ are reasonably competent. 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, referring to General Cleaning Contractors Ltd v. Christmas [1952] 2 All ER 1110, where Lord Reid opined thus – 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. Also, that in Western Nigeria Trading Coy Ltd v. Busari Ajao [1965] NWLR 178 (wrong citation), the Court held 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. On the second ambit of the employer’s duty, that is supplying proper tools and maintaining good premises, the rule states that where an employer has knowledge of the dangerous character of a plant or fails to provide safe premises and tools for work, such an employer will be liable to an employee who suffers any injury thereof, referring to General Cleaning Contractors Ltd v. Christmas (supra), where it was held that where an employer leaves it to the individual workman to take precautions against an obvious danger, the employer has failed to discharge its duty to provide reasonable safe system of work. The third duty provides that it is not enough to provide efficient staff and good tools or plant. If the administrative system doesn’t satisfy the conditions of reasonability, then the employer will still be liable reason being that he owes a duty to employees to provide safe system of work. This requirement and the two already buttressed above are all set down in the hallmark case of Wilsons and Clyde Coal Co. Ltd v. English (supra) where the House of Lords held that the duty as to a safe system of work “is a common duty of care” which the employer owes personally to the employee. He (the employer) cannot delegate the duty in such a way as to absolve him from personal liability. On the second fold of the 1st defendant’s duty to the claimant (i.e. statutory duty), that it is embedded in sections 15(1), 17(1) and 23 of the Factories Act Cap. F1 LFN 2004. In Green Pack Rubber Ind. v. Ossai [2004] 2 FWLR (Pt. 194) 664, it was held as follows – 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 ensure 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 machines. 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) 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 1st defendant as employer 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 (2) i.e. whether the 1st defendant in the circumstance or facts of this case was negligent and as such breached the duty owed to the claimant, the claimant referred to UTB (Nig) v. Ozoemena [2007] 3 NWLR (Pt. 1022) 448 at 464 – 465 and 487, where negligence was defined as – 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. Also, negligence was defined in Ifere v. Trufoods [2000] WRN 30 at 42 as – The omission to do something which a reasonable man guided upon the consideration which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do… Further referred to the Court are FBN Plc v. Ibennah [1996] 5 NWLR (Pt. 451) 725 and Kalla v. Jarmakani Transport Ltd [1961] 1 All NLR 747. To the claimant, the issue above is answered in the affirmative. That the above definitions as well as the 1st defendant conceding to same in its statement of defence particularly paragraphs 13, 14, 15(b) & (d) and 46, where the 1st defendant voluntarily admitted its negligent and total breach of the common law and statutory duty which it owed to the claimant. Thus in Western Nigeria Trading Company Ltd v. Busari Ajao (supra), it was held 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. Also Ifere v. Trufoods (supra) held that section 23 of the Factories Act places upon an employer mandatory duties where an employee is to operate a machine in terms of giving full instructions as against operating the machine and ensuring that the employee has received sufficient training about the machine, else he must be placed under adequate supervision. Hence, the law is emphasizing that an employee must have requisite skill and experience before being left to manage and operate a machine. That looking at the paragraphs of the 1st defendant’s statement of defence and the case cited above, it is undoubtedly ascertained that the 1st defendant is never in the habit of enforcing the use of PPE; placing its employee under adequate supervision and as such is in breach of the duty owed by an employer to an employee. More so, the 2nd defendant who was brought into this matter by the 1st defendant vehemently denied the 1st defendant’s defence of notifying the 2nd defendant of the accident involving the claimant in paragraphs 10 of its statement of defence and 13 of the 2nd defendant’s witness deposition on oath. Thus, the 1st defendant’s refusal to notify the 2nd defendant of the incident even after claiming to have notified the 2nd defendant clearly indicates that the 1st defendant has something to hide (its negligence and breach of its duty to the claimant). It is, therefore, the submission of the claimant that this Court should in line with the statutory provision of the Factories Act and judicial principles enunciated in the common law and statutory duties as provided in issue 1 above hold that the 1st defendant was negligent and as such breached the duty owed to the claimant. Regarding issue (3) i.e. whether the claimant has suffered injury as a result of the 1st defendant’s breach of duty owed to the claimant as his employer, the claimant contended that looking at his statement of claim as well as the 1st defendant’s statement of defence there is an agreement that the claimant suffered injuries from industrial incident in the 1st defendant company. The injury occurred while the claimant was casting, which exploded and burnt his entire face, chest, tummy region, scrotum and parts of his thighs and arm. The only disagreement between the claimant and the 1st defendant is how the accident occurred. However, that as stated in issue (2) and the judicial as well as statutory authorities cited therein, the 1st defendant’s paragraph 15(b) and (d) of the statement of defence and paragraph 44 of the 1st defendant’s witness deposition on oath are admission by the 1st defendant that they were negligent and in breach of the duty owed to the claimant (both at common law and statutory) which is enough proof to the fact that the claimant’s injury was as a result of the 1st defendant’s negligence and breach of duty. The claimant went on that the set of facts stated by both parties on how the accident occurred clearly indicates that the injury the claimant sustained was as a result of the 1st defendant’s breach of duty owed to the claimant and negligence on the ground that if the 1st defendant through the production of supervisor as alleged in paragraph 10 of its statement of defence had insisted and ensured that the claimant used the Personal Protective Equipment (PPE), the claimant would not have been burnt or the degree of burnt would have been minimal, referring to Western Nigeria Trading Company Ltd v. Busari Ajao (supra), where it was held that it is 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 urged the Court to look at the documents exhibited in relation to the facts of this case and, therefore, hold that the claimant sustained the injury as a result of the 1st defendant’s negligence and breach of the duty owed to the claimant as his employer, citing unreported Suit No: NICN/CA/75/2012 which was delivered on 21st January 2014 (name of case not supplied). On issue (4) i.e. whether the claimant is entitled to his claims and reliefs against the 1st defendant, the claimant referred to Eseigbe v. Agholor [1993] 12 SCNJ (page not supplied), where it was held that in assessing of general damages in personal injury cases, the Court should put into consideration the following – (a) The bodily pain and suffering that the plaintiff underwent and that which may occur in the future. (b) Whether or not such a plaintiff sustained permanent disability or disfigurement. (c) The loss of earnings caused by any such disability or disfigurement as aforesaid. (d) The length of time the plaintiff spent in the hospital receiving treatment. (e) The loss of amenities of life, if any. (f) The age, status and expectation of life of the plaintiff. Also referred are Obere v. Board of Management, Eku Baptist Hospital [1978] 6 – 7 SC (page not supplied); and Ifere v. Trufoods (supra) where it was held that in personal injury case, two main factors have to be taken into consideration in assessing damages in cases of liability, namely: financial loss resulting from injury; and the personal injury involving not only pain and suffering but loss of the pressure of life. In conclusion, the claimant submitted that from the foregoing, the claimant accordingly submitted that the claimant is entitled to his reliefs and claims sought against the 1st defendant. 1ST DEFENDANT’S SUBMISSIONS To the 1st defendant, the claimant brought this action for compensation claiming damages for injury resulting from an industrial accident against the 1st defendant. The 1st defendant filed defense and counterclaim denying liability and not breaching any of its duty of care as well as alleging that the accident occurred due to the negligence of the claimant. Furthermore, the 1st defendant later joined the 2nd defendant as a party because of a contract of insurance of indemnity against its worker’s injury resulting from industrial accident. Pleadings were then exchanged. The 1st defendant proceeded to frame five issues for the determination of the Court, namely – 1) Whether the Court has the competence and jurisdiction to entertain the suit by virtue of section 4(4)(c) of the Employees Compensation Act 2010. 2) Whether it was not the willful and serious misconduct of the claimant that caused the accident. 3) Whether the 1st defendant breached any of its duty of care. 4) Whether the 1st defendant abandoned his case. 5) Whether the 1st defendant and counterclaimant is not entitled to his solicitor’s fee. Regarding issue 1), the 1st defendant contended that this Court lacked the necessary competence and jurisdiction to adjudicate on this matter because the claimant has not met the necessary conditions for institution of this action. The jurisdiction and competence of the Court can only be exercised where the following conditions have been established: (a) the Court is properly constituted as regards members; (b) the subject matter is within the jurisdiction of the Court; and (c) the conditions precedent to the institution of an action is complied with; referring to Madukolu v. Nkemdilim [1962] 2 SCNLR 341. To the 1st defendant, the fact is that the claimant is under a statutory obligation to notify his employers with the information regarding the injury and accident for onward transmission to the board. That the board in the Act means the Nigerian Social Insurance Trust Fund Management Board established under Nigeria Social Insurance Trust Fund Act 1993. That non-compliance with this statutory requirement divests the Court of its competence and jurisdiction. Secondly the board has to verify whether the injury for which a claim for compensation is raised has been reported to the National Council for Occupational Safety and Health office in the State where the accident or disease occurred as required under section 30 of the Occupational Safety and Health Act 2005 prior to the settlement of such claim. The 1st defendant went on that the claimant under cross-examination admitted that he did not notify his employers before commencing the action. The action of the claimant did not allow the employer and the board to carry out their lawful duties under the law. Hence the action is statute-barred under section 4(4)(c) – the law is not supplied. Further still, that the claimant’s non-compliance with section 4(1) of the Employees Compensation Act 2010, which is a condition precedent in instituting action of this nature, deprives the Court of its competence and jurisdiction and as such this Court should decline jurisdiction and dismiss the suit of the claimant. On issue 2) i.e. whether it was not the willful and serious misconduct of the claimant that caused the accident, the 1st defendant contended that it was the serious and willful misconduct of the claimant that caused the accident and subsequent injury that affected him. That the claimant was highly negligent in the discharge of his duty. It was his negligent misconduct by particularly allowing irons and other metal objects into the furnace that caused the accident and explosion. The claimant by consciously disregarding the safety procedure and adequate instructions given to him relating to the use of the process and the furnace caused the accident. That where the serious and willful misconduct of a worker caused the accident, which caused his injury, the employer will be absolved of liability for negligence. That it is the serious and willful misconduct of the claimant that caused the accident and not the negligence of the employer or breach of his duty of care. The 1st defendant continued that as employer of the claimant, it exercised its statutory duties and duty of care expected as follows – (a) the furnace section was fenced and excluded from other parts of the factory, the injury is avoidable if not for the negligence of the claimant that caused the explosion which caused the spill that injured him. The accident did not affect other workers within and outside to show that the place was fully secured with fence. (b) The 1st defendant provided all the necessary materials required for the work: goggles, boots, safety wears, pictures and warning signs were provided at the furnace and at every strategic place in the factory. (c) The 1st defendant provided at every process/stage of the claimant’s scheduled work, special instruction, supervisors, protective and safety wears and warning signs. (d) Supervisors were provided for the claimant to guide him. (e) The claimant was insured by the 1st defendant with the 2nd defendant under the insurance policy No. ZG/00002/09/GP/MR Group Personal Accident Insurance Policy. (f) The 1st defendant took the claimant to hospital and paid all his medical expenses amounting to N414,350.00. (g) “Paid the delivery while in and out of the hospital”. (h) The claimant was not sacked on account of his injury or the accident but the claimant refused to return to work. His right to work was guaranteed. It is the submission of the 1st defendant that it did not renege on its duty of care but followed it to the letter as regards its workers and employees. Consequently, the 1st defendant was not negligent but rather that it was the claimant that was negligent and his case should be dismissed. Regarding issue 3) i.e. whether the defendant breached any of its duty of care, the 1st defendant contended that in the exercise of its duty of care, it insured the claimant and other employees in a group Personal Accident Insurance Policy No. ZG/00002/09/GP/MR with Zenith General Insurance and under the policy the claimant was entitled to compensation if the 1st defendant is found to be negligent by the Court. That the insurance policy was signed, sealed and delivered and valid. On issue 4) i.e. whether the 1st defendant abandoned its case, the 1st defendant contended that it never abandoned his case. That the fact that the 1st defendant was not in Court on 26th March 2014 does not translate to abandonment of his evidence and pleadings. The 1st defendant took the necessary steps to correct the abnormality by filing a motion on notice dated 2nd April 2014 and sought orders to re-open his case, recall witness and extend time to open his defense and pleadings. Secondly, the 1st defendant filed a motion on notice dated 22nd September 2014 to vacate the order of Court of 26th March 2014 and leave of Court to file written address out of time. The total culmination of these steps was to regularize their position and prove their case. That the steps taken do not amount to abandonment of pleading and case, but exercise of the 1st defendant’s right to fair hearing in accordance with the rules of Court. Regarding issue 5) i.e. whether the 1st defendant/counterclaimant is not entitled to his solicitor’s fee, the 1st defendant contended that solicitor’s fee is special damage. It needs to be pleaded in the cause of action and evidence adduced, referring to Inland Bank of Nig. Ltd & anor [2007] 4 CLRN 121 (incomplete name of case). That the 1st defendant engaged the service of legal attorney to defend an action which in the present case is unnecessary. The 1st defendant has paid his attorney his legal and professional fee. The claimant did not file defence and reply to the statement of defence. That it is a trite law that uncontroverted evidence is deemed an admission in law. Failure of the claimant to file defence to the counterclaim is an admission of the counterclaim of the 1st defendant in his counterclaim, citing Mark v. Eke [1997] 11 NWLR (Pt. 529) 506. In conclusion, the 1st defendant/counterclaimant submitted that in view of the judicial authorities and laws cited above the Court should dismiss the case of the claimant with substantial cost of N100,000.00 as it is frivolous, vexatious and gold-digging. On the other hand, that the Court should grant and uphold the counterclaim of the 1st defendant against the claimant. The claimant did not file any written reply on points of law but reacted orally to the 1st defendant’s written submissions. Regarding the 1st defendant’s claim for legal fees, the claimant submitted that in having a cause of action, he has the right to bring an action against the defendants. In such a case, the 1st defendant cannot claim against the claimant for its legal fees. COURT’S DECISION I heard learned counsel and considered all the processes in this case. Before considering the merit of the case, I must remark on especially the written address of the 2nd defendant as written and filed by its counsel. Counsel to the 1st defendant, to a lesser extent, also suffers from the inelegance I am remarking on. This Court has severally cautioned that it should not be turned in a proofreader; and that good sentence construction in written briefs is part of good advocacy. Alas, this is not the case with the written address of counsel to the 2nd defendant. I took time in this judgment to quote verbatim many of his submissions in the exact words that they appear in his written address. They will be found marked with quotation marks, open and close. First, I do not know how counsel expects this Court to understand what he means by the quoted submissions. Second, even when the submissions are authenticated by judicial authorities, their names and citations are often confusing and incomprehensible. And counsel expects this Court to understand what his submissions are and mean so that he can get a verdict. Well, it is the duty of counsel to ensure that his submissions make meaning. Where submissions are meaningless, the counsel making them and his client must take and bear the risk of any misunderstanding of the submission by the Court. The claimant’s claims are claims in negligence for injury sustained in the workplace. The 1st defendant, as its first issue, raised the question of competence and jurisdiction of this Court to entertain this suit, arguing that the claimant did not notify his employers with the information regarding the injury and accident for onward transmission to the Nigeria Social Insurance Trust Fund Management Board established under the Employees Compensation Act (ECA) 2010. The requirement of informing an employer workplace injury by an employee for purposes of the ECA 2010 is regulated by section 4(1) and in section 4(4), failure to so inform is a bar to a claim for compensation under the ECA 2010. In arguing that the claimant did not comply with section 4 of the ECA 2010, and so this suit is statute-barred under section 4(4)(c), the 1st defendant missed certain points. For one, this action was filed in this Court on 25th July 2011, the cause of action (the industrial accident in issue) having accrued on 27th April 2010 (see paragraph 3 of the claimant’s amended statement of claim). The ECA 2010 has as commencement date 17th December 2010. According to Obiuweubi v. CBN [2011] 2 – 3 SC (Pt. 1) 46; [2011] 7 NWLR (Pt. 1247) 465 at 495 – 496: The law in force or existing at the time the cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the court at the time that jurisdiction is invoked. That is to say the law in force at the time cause of action arose governs determination of the suit… In the instant case, since the cause of action arose on 27th April 2010 before the commencement of the ECA 2010, the 1st defendant cannot raise any issue under the ECA 2010 as a defence to this suit since the ECA 2010 cannot even be used in determining the case. I accordingly rule that this case is competent and this Court has jurisdiction over the suit. See section 7 of the NIC Act 2006 and section 254C(1) of the 1999 Constitution, as amended. Secondly, even if the cause of action were to have arisen after 17th December 2010 when the ECA 2010 came into effect, the bar under section 4(4) is not a bar to an action, but a bar to compensation under the ECA 2010. The ECA 2010 in section 12 makes a distinction between claiming compensation and filing an action. The claimant is not claiming for compensation under the ECA 2010 but in tort for negligence. Section 12(1) and (3) of the ECA 2010 provides as follows – (1) 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 any 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, dependant 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 the course of employment and where no action in respect of it lies. (3) Where the cause of death, injury or disability of an employee is such that an action lies against some person, other than an employer or employee, the injured employee or deceased employee's dependant may claim compensation or may bring an action and if the employee or dependant elects to claim compensation, the employee or dependant shall do so within 6 months of the occurrence of the injury or death or any longer period, as the Board may, from time to time, determine and an election by the employee or dependant to bring an action in court shall be a bar to claim compensation from the Fund in respect of such injury, disability or death. A composite reading of these provisions shows that a claimant may elect to claim compensation under the ECA 2010 or bring an action. It is where the claimant elects to claim compensation under the ECA 2010 that any talk of limitation of action under the Act can be raised. In Amina Hassan v. Airtel Networks Ltd & anor unreported Suit No. NICN/LA/471/2012 the ruling of which was delivered on 11th February 2015, His Lordship Hon. Justice B. A. Adejumo, PNICN had cause to interpret section 12 of the ECA 2010. Relying on Femi Aborisade’s “Reflections on Employees’ Compensation Act, 2010” in Bimbo Atilola (ed.) – Themes on the New Employees’ Compensation Act (Hybrid Consult), 1st Edition, 2013 at page 35, His Lordship came to the same conclusion. The 2nd defendant had filed a preliminary objection praying that this Court lacks the jurisdiction to entertain this suit against the 2nd defendant. The grounds upon which the objection was raise are: this suit is incompetent against the 2nd defendant in that it came before this Court without due process of law and fulfillment of the conditions precedent to the exercise of jurisdiction; there is no claim against the 2nd defendant by the claimant; the joinder of the 2nd defendant is misconceived as its presence in this suit is unnecessary or required for the determination of this suit; the claim discloses no reasonable cause of action and is an abuse of court process; and the 2nd defendant is not under any obligation to compensate the claimant. This preliminary objection was moved on 5th December 2012. In a considered ruling of same date, this Court ruled that it has jurisdiction over the case and the 2nd defendant is a proper a party in the suit. Surprisingly, in its final written address, the 2nd defendant framed the following as the three issues calling for the determination of this Court – 1. Whether having regard to the claimant’s pleadings, the 2nd defendant is a proper party to be sued and whether a cause of action has been disclosed against the 2nd defendant on record. 2. Whether having regard to the facts and circumstance of this case this Court is not bound to decline jurisdiction and strike out the name of the 2nd defendant from this suit. 3. Whether having regard to the circumstance of this case the present suit as presently constituted is not frivolous, vexations and an abuse of the court process. Now, what is the difference between these three issues and the grounds of objection that this Court considered and ruled on as per its sitting of 5th December 2012? Aside from a poorly drafted written address, Mekwunye Anthony, counsel to the 2nd defendant, thinks he can be clever by half by bringing through the backdoor issues that this Court has already pronounced on. That legal advocacy has degenerated to this very low ebb leaves a lot to be desired. To think that counsel is paid by an unsuspecting client for this unprofessional act is most worrying. This is the kind of act that brings disrepute to the legal profession. I indicated clearly in the ruling of 5th December 2012 that the 2nd defendant is simply sued as the insurance company that the 1st defendant said it has a liability insurance policy with; and that the liability of the 2nd defendant is hinged on the 1st defendant being found culpable in negligence. If counsel to the 2nd defendant has nothing to say, why waste paper and ink in respect of issues that this Court had pronounced on? If counsel did not like the ruling of the Court, he should know how to go on appeal. Antics such as this do great disservice to the legal profession; and all must rise up against such. Let this be a cautionary note from this Court to counsel to the 2nd defendant. The issue of jurisdiction resolved, I now turn to the merit of the case, which is the claimant’s claim in negligence for injuries sustained at the workplace; and the simple issue is whether the claimant has made out a case in negligence against especially the 1st defendant for which if the answer is in the affirmative, then both defendants would be responsible for. The authorities are clear that a successful plea of negligence consists of proving the trilogy of duty, breach and resultant damage. It is not in doubt that the claimant was employed as a casual worker by the 1st defendant. It is also not in doubt that the injuries complained of occurred when the claimant was at work in the 1st defendant’s furnaces in the company. In other words, the injuries occurred at the place of work of the claimant. In fact, the evidence is that it was one Mr. Alex, a management staff who took the claimant to the hospital after he sustained injuries. Does an employer owe a duty of care to an employee? The answer is in the affirmative. This duty is both statutory, under the Factories Act (see Green Pack Rubber Ind. Ltd v. Ossai [2004] 2 FWLR (Pt. 194) 668), as well as under the common law. 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. In other words, the 1st defendant in the instant case, as the employer of the claimant, owes a duty of care to the claimant; and I so find and hold. The duty of care owed is to provide a safe working environment, safe equipment, protective clothing and ensure that they are used, etc. See IITA v. Amrani [1994] 3 NWLR (Pt. 332) 296. Did the 1st defendant breach this duty of care? The case of the claimant in terms of his evidence is that on the day of the accident, they were not given any safety appliances like hand gloves, etc. Also that they were not given any training as to what to do in the furnace section where he worked. He acknowledged that they had a supervisor in their department. The claimant described the job they do in terms of the 12 of them who were in the Furnace section. He acknowledged that the 12 of them were doing the same job, which is casting i.e. they bring out melted iron out of the machine and they take it to where it will be formed into the desired shape of the iron. The claimant denied being employed to filter the raw materials brought for casting and insisted that he was employed to do casting. As part of his evidence, the claimant asserted that if the raw materials are not properly filtered or cleaned, they could cause on explosion. He went on to deny that there were safety procedures posted on the walls and in the furnace. To the claimant, the supervisor showed them how to do the job i.e. bringing out melted iron out of the machine and taking it to where it will be shaped. He went on that there was no rule that anyone not wearing safety wares should not enter the furnace. In fact, that one can enter empty; but that aside from the safety officer, supervisor and the workers, there was no other person who can enter the furnace. The defendants denied all of this. However, in paragraph 15 of the 1st defendant’s amended statement of defence and counterclaim of 23rd August 2012, the 1st defendant pleaded that the claimant by particularly throwing or allowing irons and other metal objects into the furnace caused the accident; that the claimant consciously disregarded the safety procedure and adequate instructions given to him relating to the use of the process; the claimant’s serious and willful misconduct caused the accident; and the claimant’s refusal to put on the safety wears, the boots, helmet, hand gloves and the use of other safety electronic gadgets devices caused the degree of burns received by him. Case law authorities are clear that an employer’s duty at common law is not only to provide the employee with protective gears but to also see to it that they are used. See Western Nigeria Trading Co. v. Ajao [1965] All NLR 524 which dealt with protective goggles. By pleading in paragraph 15(d) of its amended statement of defence and counterclaim that the claimant’s “refusal to put on the safety wears the boot, helmet, hand gloves and the use of other safety electronic gadgets devices caused the degree of burns received by him”, the 1st defendant is here acknowledging that it was negligent in not insisting on the claimant using the protective gears it claims it supplied to him. I need to clarify here that I believe the claimant’s evidence that protective gears were not supplied. The claim by the 1st defendant that it provided the best of safety measures is suspect and not believable. Even if they did supply protective gears, in not insisting that the claimant uses them at the material time, the 1st defendant had simply acknowledged being negligent. I accordingly find and hold that the 1st defendant was negligent and breached its duty of care towards the claimant. Did the claimant suffer any resultant damage? Exhibits C3, C3(a) and C3(b) are pictures taken showing the claimant’s bodily injuries stemming from the accident. Exhibit C4 is the medical report from Holy Family Church Medical Centre indicating that the claimant was brought to the hospital on 27th April 2010 “with complaints of burns, secondary to an industrial accident”. Exhibit C4 (also frontloaded by the 1st defendant) went on to state: “Musculo-skeletal examination revealed, exudative erythematous blasters on the anterior aspect of the chest, abdomen and right hand”. In paragraphs 20 and 21 of its amended statement of defence and counterclaim, the 1st defendant pleaded that when the accident occurred, it promptly responded by taking the claimant to hospital for treatment; and then paid the medical bills of the claimant while in the hospital as in-patient and when he was out of the hospital as an out-patient, all of which came to the tune of N414,350. In support of this sum is a medical bill from Holy Family Church Medical Centre dated 27th April 2010 in that sum and addressed to the Managing Director of the 1st defendant. There is something curious about the medical bill from Holy Family Church Medical Centre. It is dated 27th April 2010 and indicates that the claimant was admitted for 30 days at N2,000 per day. Now, if the accident occurred on 27th April 2010, and the claimant was admitted same date (27th April 2010) how can the bill of that date (27th April 2010) indicate and bill a patient for 30 days admission? Was the bill a projective bill or an estimate? That piece of evidence is accordingly not credible at all. I am, however, satisfied that the claimant suffered damage as a result of the accident and as such has proved the requirement of resultant damage for a claim in negligence. In all, I am satisfied that the claimant has proved his case, for which he is entitled to recompense. In relief 2, the claimant claims for Four Hundred Thousand (N400,000.00) only being cost of treatment. There is nothing in evidence before the Court indicating how the claimant arrived at the sum of N400,000. The claim for it cannot, therefore, be granted. The claim for N400,000 accordingly fails and is hereby dismissed. This leaves out reliefs 1 and 3, the claims for general damages and compensation. No amount was indicated in relief 3 regarding the claim for compensation. In any event, the claimant cannot be asking for general damages under relief 1 and then also claim for compensation under relief 3. Relief 3, the claim for compensation accordingly fails and so is dismissed. In relief 1, the claimant is claiming for Five Million Naira as general damages. Section 19(d) of the NIC Act 2006 permits this Court where necessary to 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”. I observed the claimant throughout the trial and could only but imagine the pains he is going through as a result of the injuries he sustained in the accident at his workplace. His injuries are such that cannot be quantified in monetary terms. In the circumstance, I do not see any reason to disturb the sum of Five Million Naira prayed for by the claimant as general damages. I accordingly grant same to the claimant. I now turn to the counterclaim of the 1st defendant, which is for recovery of legal fees it purportedly paid as a result of the suits initiated against it by the claimant. The 1st defendant asserted that the claimant sued it in Suit No. FHC/L/CS/854/10 but did not deem it fit to file a certified true copy of the court processes in that suit in order for this Court to determine the circumstances in which the suit was filed and the circumstances in which it was disposed of at that Court. Any claim (such as the N500,000 allegedly paid as solicitor’s fees) accordingly hinged on that case must fail on this score. In terms of the instant suit, the 1st defendant is also claiming for N500,000 allegedly paid as solicitor’s fees. There is nothing before the Court as evidence that these sums of money were ever paid. In any case, by Guinness Nig. Plc v. Nwoke [2000] 12 NWLR (Pt. 689) 135, it is unethical and an affront to public policy for a litigant to pass on the burden of his solicitor’s fees to an opponent in a suit. As for the claim of N20,000 being the cost awarded against the claimant in Suit FHC/L/CS/845/10, there is no evidence before this Court of such a cost being ordered. In all, the counterclaim of the 1st defendant lacks merit and so is dismissed. On the whole and for the avoidance of doubt, the claimant’s case succeeds in part and only in terms of having established negligence on the part of the 1st defendant who has liability insurance with the 2nd defendant. In consequence, it is the order of this Court that – 1. Within 30 days of this judgment, the defendants are to pay to the claimant the sum of Five Million Naira (N5,000,000.00) only being general damages for injuries sustained while at work for the 1st defendant. 2. Cost of this suit is put at Fifty Thousand Naira (N50,000.00) payable by defendants to the claimant within 30 days of this judgment. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip, PhD