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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE OYEWUMI.OYEBIOLA. O O DATED 30th OF JANUARY, 2015 SUIT NO: NICN/LA/249/2013 BETWEEN WISDOM ADIKPE OWOICHI -------------------------- CLAIMANT AND PURECHEM INDUSTRIES LIMITED ---------------- DEFENDANT REPRESENTATION: U.N Eze- okeke with him are H.C Ufodu for the claimant Babatunde Abdulrahman with him are E.T Olatunji, A.A Ibrahim (Mrs.) for the defendant. JUDGMENT The claimant caused a complaint to be filed against the defendant in this case, claiming these reliefs- (a) The Claimant claims from the Defendant as follows General damages to the tune of N12,000,000. (b) N10,000,000 for pains sufferings and permanent deformity of the finger suffered as a result of the injury sustained in the performance of his lawful duty. (c) N2,000,000.00 being claim for wrongful dismissal without notice and without any cogent reason. It is the case of the claimant as evinced in his written statement on oath that he was an employee of the defendant, employed on 28th September 2011 as an electrical trainee staff until he was illegally without notice sacked wrongfully on March 2013 having worked for a period of 18 months. It is the further testimony of the claimant that in the cause of his duty on the 1st day of February 2013 was instructed by his supervisor Mr. Sainty an (Indian) in conjunction with another fellow to terminate an armored cable from top of a 23 feet and bring it down. That while the claimant was standing on an iron channel dragging down the cable then suddenly the cable bounced back dragged him to an iron and cut off the second upper phalange of his left finger thereby permanently deforming him while injuring the second finger. He was taken to the company's Hospital at Sango, Shirish clinic where he was hospitalized for 10 days, from the 15th of February 2013 to 25th February 2013 when he was discharged by the Hospital. While still bearing bandage on the wounds and still writhing in pains, the wounds not yet healed he was asked to resume work on the 26th February, 2013. His resumption of duty without the wound healed aggravated the pains and caused blood stains on the bandage due to strain of work. His complaint to the supervisor and to the manager was ignored, they only ensured he did his work. He agonized at night because of the pains and suffering and would not sleep. Despite all these, no compensation or relief allowance was paid to him. He was forced therefore in the circumstances to complain to Human Right Development International (NGO) which caused two letters dated 14/3/13 and 10/4/13 respectively to be written to the defendant demanding compensation. Sequel to these letters the defendant sacked the claimant, hence this action. The defendant defence as stated by its two witnesses, Kosiobameji James and Olofu Stephen Ejehis, is that the claimant was engaged as a trainee and his engagement was terminated as a result of his insubordination as contained in the queries issued to him. It was the defendant's case that the claimant defied all official safety instruction. The defendant denied that the claimant was not his employee, but a trainee. It went on that the defendant has safety equipments and safety of its staff is paramount to it. Hence the company instructs all its employees and trainees on the use of the company's safety equipments. To the defendant the injury sustained by the claimant was as a result of his negligence. It is the contention of the defendant that claimant ought to have foresee the consequences of his action by embarking on his assignment without wearing the safety equipments, which were available. It is the defendant's evidence that it paid all medical bills for claimant's treatment. That the claimant was engaged as an apprentice by the defendant for a period of two years. To the defendant the claimant's disengagement was as a result of his insubordination. The claimant filed a reply to the defendant's defence and contended that he was never queried or accused of any misconduct by the defendant. He denied that the defendant gave him any protective equipment to work with on the day of the incident. He queried the alleged report of the safety officer, one Mr. Stephen Ejeh dated 16th Feb, 2013, and stressed that the said Mr. Stephen was not his supervisor, rather he was supervised by Mr. Sainty. Claimant also stated that he was not trained on electrical safety and wondered how some people signed the register without his signature. He contended that the register was fabricated by the defendant for sole purposes of defending this case. As regards the payment of his March, 2013 Salary, claimant argued that he signed the payment voucher to collect the salary, before he was asked to surrender his ID card which was not with him at that time, hence his salary was withheld. Both parties tendered documents and were admitted in evidence in support of their respective cases. At the close of evidence the defendant filed and adopted it written address. It formulated four issues for the determination of the Court viz- (a) Whether the claimant has proved his case to entitle him to compensation and damages for the acclaimed injury sustained. (b) In the alternative to issue1, Should the Court find that the claimant has proved that he sustained injury, how much is the claimant's entitled to as compensation for the injury sustained and the effect of the claimant's acts of negligent or omission? (c) Whether the claimant was wrongfully dismissed and whether the defendant reserves the right to terminate the engagement of the claimant without given reason for such termination? (d) Whether the claimant is entitled to N10,000,000.00 or other sum as general damages. On issue one, it was submitted that by Section 131 of the Evidence Act, the claimant has the burden of proving his claims. To the defendant, the claimant has failed to place before the Court the nature and degree of his injury, but only stated that an iron cut off his upper phalanges of his second left finger and then lost his left finger. It is contended that the claimant failed to place before the Court convincing evidence in prove of his claim. The defence argued that the claimant did not produce the photograph of his injury before the Court and that although he was asked to show the injured finger, which he did but there was no sign of any amputation. The defendant urged the Court to invoke the provisions of Section 167(e) of the Evidence Act and submitted that failure of the claimant to produce the photographs was intentional and same would be unfavourable to his case, hence he failed to tender any. It urged the Court to dismiss the claimant's claim as same is gold digging. Whilst citing the case law authorities of ETHEL DAVID ORJI V DORJI TEXTILE MILLS (NIG) LTD 7 ORS [2010] 4 NSCQR, 109; and UKAEGBU V NWOLOLO [2009] ALL FWLR, (466) 1852, it was submitted that the claimant must succeed on the strength of his case and not on the weakness of the defendant's case and that the burden of prove does not shift to the defendant. That since the claimant has failed to prove his claim, he is not entitle to neither the damages and compensation for N12M and N10M respectively. In the alternative, the defendant submitted that the general object of an award of damages is to compensate the plaintiff for the losses, pecuniary and non pecuniary sustained as a result of the injury suffered. The general principle is restitution in intergrum. It is then submitted that the position and earning capacity of the claimant has not changed from what it was before and after the injury. It is posited that the above principle is inappropriate as regards personal injury as in this case. That the only guiding principle in this case is what is fair and reasonable. The Court's attention was called to the provisions of Sections 7 and 22(2) of Employee's Compensation Act 2010, which is to the effect that an injured person at the work place is entitle to payment of compensation in accordance with Part 1V of the Act, according to the defendant, Part 1V provides that loss of one philange of the middle finger is assessed as 4% disability. It is the contention of the defendant that there is no evidence that the claimant lost any finger, coupled with the medical report, exhibit KJ2 which is to the effect that the stump was sutured and refashioned, hence the claimant should get 0.5%. The defendant submitted that assuming the Court found that the claimant is entitle to damages, the defendant urged the Court to find in accordance with exhibit KJ2 or in accordance with the Part 1V of Employee's Compensation Act. It is the further submission of the defendant that the omission of the claimant contributed to the injury sustained. The defendant continued that it provided personal protective equipment for safety and the claimant had notice on safety as incorporated in the claimant's letter of engagement. It is submitted that the claimant failed to request for the protective equipment from the safety department. The defendant placing reliance on the decision of Denning L.J in JONES V LIVNOX QUARRIES LTD [1952] 2 QB. 608,615; where it was held thus- '' Although contributory negligence does not depend on a breach of duty to the defendant, it does depend on forseability of harm to others, so contributory negligence requires forseability of harm to oneself. A person is guilty of contributory negligence whenever he ought reasonable to have foreseen that, if he did not act as a reasonable prudent man, he might hurt himself; and in his reckonings he must take into account the possibility of others being careless'. It was argued that the claimant is expected to take precautions to guard against the occurrence of an accident. The defence urged the Court to consider the statutory and case law authorities to hold in its favour. It is the submission of the defendant as regards issue three that it is the settled principle of law that where there is a dismissal/termination of service of employment, it is not necessary for the employer to give any reason, but to ensure that in terminating the employment, it followed the express and implied terms of the contract, regardless of whether the appointment is on permanent or probationary basis, cited is the case of IHEZUKWU V UNIVERSITY OF JOS [1990] 4 NWLR (PT. 146) 598 @ 610. The defendant continued that exhibit WA2 i.e. the claimant's letter of Engagement clearly shows that the claimant was engaged as a trainee for two years and that the defendant reserves the right to terminate the claimant's training without giving any reason, while the claimant also reserves the right to terminate his training with the company by giving at least two weeks notice or two weeks pay in lieu of notice. The defence argued that exhibit KJ4 evinces that the claimant was given queries, he refused to acknowledge same and denied being given same., but did not give evidence to controvert it. It then urged the Court to hold that the claimant admitted the content of exhibit KJ4. It was stressed that inspite of the fact that the defendant reserves the right to disengage the claimant, it paid his March salary and two weeks salary in lieu of notice and other benefits. It went on that the claimant never claimed for arrears of salary and did only mentioned about signing the salary voucher and was not given his March salary because he could not produce his ID card is an afterthought and should not be believed. It urged the Court to rely on exhibit KJ1 as prima facie evidence that the claimant was paid his March salary. It the further submission of the defendant that in view of the payment of the two weeks salary in lieu of notice to the claimant, the termination of his engagement was not wrongful and thus not entitle to the claim of N2MM. The defence argued that the law is settled that an employee who accepts salary in lieu of notice cannot challenge the termination of his employment. Cited in support of this assertion is the case of MORONFOLA V KWARA STATE COLLEGE OF TECHNOLOGY [1990] 4 NWLR (PT. 145) 506. The defendant urged the Court to consider the letter of employment of the claimant to determine whether his disengagement was wrongful or not. On whether the claimant is entitle to N10,000,000 as general Damages, it is the submission of the defendant that the law is trite that the measure of damages for wrongful dismissal is prima facie, the amount the plaintiff would have earned had he continued with the employment. To the defendant, what the claimant is entitle to is two weeks salary in lieu of notice which was given to him, hence he is not entitle to any damages, even if he is entitle to any it would not be more than N9,500 which is his two weeks salary. The claimant also filed his final written address on the 24th of June 2014 and adopted it on 20th October, 2014, wherein two issues were distilled for the Court's consideration, thus- 1. Whether the claimant is not entitle to compensation for pains, sufferings and permanent deformity of his finger suffered in the cause of his duty with the defendant. 2. Whether the termination of the claimant is not wrongful and illegal and therefore compensatory? It is the submission of the claimant's counsel that the claimant as a trainee who has to be guided and supervised. It is the claimant's contention that he was not given any safety equipment to work with before he was directed by the supervisor one Mr. Sainty to bring down an armored cable. He submitted that the defendant had no safety equipment because they never gave him one. It is the contention of the claimant that DW1 and DW2 both admitted that it is the duty of the supervisor ensure that staff complied with the usage of personal safety gadgets, and where the staff refuses, the supervisor should put the work on hold. It is the further submission of the claimant that the safety report on the accident tendered by the defendant is contradictory in that in a breath it stated that the claimant did not come to collect the hand glove and safety harness and in another breath it stated that he refused to use it. It is the position of the claimant that the defendant has no personal safety equipment for its staff thereby exposing staff to risk and danger. He stressed that there was no safety equipment for the defendant's staff including the claimant, hence the supervisor Mr. Sainty could not insist that he use it. He went on to state that the exhibit OS1 and KJ3 were prepared for the purpose of this case and thus should be discountenance. It is the argument of the claimant that the defendant lack the necessary duty of care, thereby endangering his life. It is further argued that the defendant's averred at paragraph 23 of its statement of defence that the claimant participated in a safety training on 31st January, 2013. According to the claimant, he did not participate in any safety training because there was none on the 31st January, 2013. It is also the contention of the claimant that the defendant contradicted itself when it averred in paragraph 11 of the statement of defence that the claimant resumed work when he was medically cleared to do so as stated by DW2 in his statement on oath and then exhibit KJ2 medical report was to the effect that he was discharged against medical advice. It is the complaint of the claimant that he suffered great damages and thus entitle to compensation for the permanent deformity to his left finger. He cited the cases of U.A.C (NIG LTD) V JOSEPH OREKYEN [1961] 1 ALL NLR, 719; and C & C CONSTRUCTION COMPANY LTD V SAMUEL TUNDE OKHAI [2004] 2 MJSC, 134, 136-137. Where it was held that- '' Damages for pain and suffering can only be susceptible to approximated monetary evaluation. The measure of damages can only be determined by what an enlightened conscience of tribunal of justice can reasonably determined as the amount that would compensate for pains suffering of the plaintiff...'' He thus urged the Court to award damages based on the pains, suffering and deformity of his left finger. It is the submission of the claimant on issue two which is whether or not his employment was wrongfully terminated; It is the contention of the claimant that sequel to the letter written on his behalf by Human right Development International requesting for compensation to the defendant, the defendant in turn asked and tricked him to produce his employment letter which was retrieved from him since the 18th March, 2013 and later sack him on the 30th March, 2013. It is his further position that the defendant wanted to retrieve his ID card also as it did his employment letter, by urging him to produce it after he had signed the March salary voucher, hence he refused to give the defendant, which resulted in it refusal to give him his March salary. To the claimant, the defendant had a ploy to deprive him of any evidence in prove of his employment relationship with the defendant. On the meaning of the words engagement and employment, the claimant, produced the dictionary meaning of both words and concluded by positing that both words are one and the same and may be used interchangeably. He expanciated on this further by considering the letter of engagement issued to him which is titled letter of engagement and in it it was also written acceptance of employment and the portion for name of employee. All these according to the claimant give credence to the fact that both the words engagement and employment are one and the same ad may be used interchangeably. As regards the termination of claimant's employment, he submitted that his employment was wrongfully terminated because it was done in bad faith. According to the claimant the two memos dated 18/3/13 and 20/3/13 titled insubordination and gross misconduct respectively neither existed nor were they brought to the attention of the claimant, as nothing of such happened. The claimant urged the Court to invoke the provisions of Section 83(3) of the Evidence Act, as the documents were procured during the pendency of this case. It is the position of the claimant that the defendant thrives on falsehood, deceit and contradictions. The claimant continued that the defendant traversed in its statement of defence that the claimant's compensation was processed since February, 2013 lodged with Prestige Insurance Company but that he refused to collect it, whilst DW1 stated that the claimant's compensation is still being processed. The claimant insists that the defendant contradicted itself in so many ways in order to cover up its tracks. The claimant submitted that the defendant has failed to show that he contravened any of the terms of his engagement. Claimant finally, urged the Court to grant his reliefs. I have given an insightful consideration of the facts before the Court, culminated in the testimony of the parties, the exhibits on record, the statutory and case law authorities cited by the parties in this suit as evinced in their respective written addresses, it is in the calm view of the Court that the issues begging for an answer is whether or not there was an employer/employee relationship between the claimant and the defendant, close to this is whether the termination of the claimant's appointment/engagement was wrongful; next question is whether the defendant was negligent, or differently put failed in its duty of care owed the claimant at his premises and thus liable in damages. It is of note that there is no controversy as regards the fact that the claimant worked as a trainee with the defendant in 2011 till March, 2013. It is on record as evinced by exhibit WA2, i.e. the letter of engagement of the claimant by the defendant dated 9th January, 2012; that the claimant was employed as an apprentice and a trainee, the commencement date was 28th September, 2011 for two years and on a monthly allowance of N19,000.00. The same letter constitute the terms of contract of employment between the duo. It is obvious from exhibit WA2, that the claimant was employed as an industrial worker by the defendant. I say so in view of the provision of Section 91 of the Labour Act, CAP. L1, LFN 2007; which defines an industrial worker to include- ''any artificer, jouney man, handicrafts man, canoe man, carrier, messenger, clerk, shop assistant, store keeper, labourer, agricultural labourer, hotel or catering worker or apprentice and any person or class of persons gainfully employed or normally seeking a livelihood by gainful employment declared to be such by the Minister by order''. A contract according to the same Section of the Labour Act supra is defined as a contract of employment, and includes a contract of apprenticeship. It has been seen that a master/servant relationship may arise even where a person works without pay on the orders of another person. See DUCKLAND V GINOX & ANOR [1969] 1 NMLR, 18, S.C. MUNKMAN, in his book Employer's Liability at Common Law, 1st Ed., P. 78; stressed that where a volunteer has been invited to assist workmen in their tasks or the workmen were authorised by the master to invite help, the master will be liable if any injury to such a volunteer should occur. He is regarded as a fellow servant like the other servant of the master. An 'employee' is defined by the Employee's Compensation Act 2010 as - '' a person employed by an employer under oral or written contract of employment whether on a continuous, part time, temporary, apprenticeship or casual basis and includes a domestic servant who is not a member of the family of the employer includes a domestic servant who is not a member of the family of the employer including any person employed in the Federal, State and Local Governments, and any of the government agencies and in the formal and informal sectors of the economy'' It is apparent from the above definition that there existed a contract of employment between both parties, which is regulated by exhibit WA2 , the claimant's letter of engagement. It is tenured for two years. Accordingly, I find and hold that the claimant was an employee of the defendant between 2011 and March, 2013 when his employment was terminated by the defendant. Now, was the disengagement of the claimant wrongful as posited by the claimant? It is the contention of the claimant that he was wrongfully disengaged from the employ of the defendant. Whilst the defendant reacted that by the letter of engagement of the claimant, i.e. exhibit WA2, the defendant reserves the right to terminate the claimant's training with the company without giving any reason. I have carefully gone through the letter of engagement, i.e exhibit WA2, and under the heading ' Cessation'' it provides thus- '' The Management of the Company reserves the right to terminate your training with the company without giving any reason what so ever and you also reserve the right to terminate your training with the Company by giving at least two weeks notice or two weeks pay in lieu of notice''. It is the submission of the defendant that when it disengaged the services of the claimant, it gave him two weeks salary in lieu of notice. This was however, disagreed to by the claimant, who denied the receipt of any such amount and his March salary from the defendant. He submitted that the defendant on disengaging his training asked him to sign the cash payment voucher and asked him to produce his ID card before he could collect his salary and the two weeks salary in lieu of notice but he refused to give them his ID card hence, the defendant failed to give him the said money he had already signed for. It is the law of common place that parties are bound by the terms of their agreement. The Court cannot also go outside of same in consideration of a case between the parties. It is in this regard that exhibit WA2 is germane in this instance. The relevant clause in exhibit WA2 which provides for cessation is as reproduced and highlighted above. In it the duo agreed that the contract between them can cease by either party before the expiration of the two year training, if by the defendant, it may do so without giving any reason, but if by the claimant, he shall give two weeks notice or two weeks salary in lieu of notice. This smack off good labour practice. It is against the rule of fair play and justice and goes contrary to the saying that; 'what is good for the gander is good for the goose'. This is more like the proverbial 'animal farm' where all animals are said to be equal but indeed some are more equal than others. A situation where an agreement is made between an employer on one side and an employee/trainee as it is in this case on the other side, and the employer reserves the right to disengage the services of the trainee without notice or salary in lieu of notice, whilst the employee/trainee, cannot disengage his services except by giving a notice or salary in lieu of notice is disproportionate disparity in the bargaining power between the employer and employee. The balance of bargaining power in the relationship between an employer and the employee tilts in favour of the employer, which is what was exhibited in the instant case. See PATRICK AIMIOSIOR V IGI PLC; Suit No.NIC/LA/184/2012 and delivered on 3rd June 2014. Placing reliance on the decision of this case, I find and hold that the clause on cessation as contained in exhibit WA2 is unfair clause, discriminatory, it is against international best practice in labour and same shall be expunged from exhibit WA2. I so hold. The defendant although submitted that it gave the claimant, two weeks salary in lieu of notice, in support of this was exhibit KJ2 tendered. The claimant has severally disagreed with the payment of the sum evinced in exhibit KJ2. Claimant contended that he was not given any money on disengagement from the defendant company, because he could not produce his ID card. Meanwhile the payment voucher exhibit KJ2 which the defendant is relying on as evidence of payment of claimant's terminal entitlements is dated 29th March, 2013, while DW1 Kosiobameji James, stated under cross examination that the claimant was paid his entitlements on the 2nd of April 2013, because he had stopped coming to the office but collected it when he brought back some safety items, i.e helmet, uniform and safety boot. DW1 also admitted under cross examination that claimant was asked to produce his ID card before he would be paid his entitlement, failing which he would not be paid, but later stated that he was paid when he did not produce his ID card. The contradictory evidence of the first defence witness, is a clear indication of the fact stressed severally by the claimant that he was not paid his terminal entitlements after signing the payment voucher. The defendant is claiming that the claimant was paid vide its payment voucher dated 29th of March, 2013, whilst DW1 said claimant was paid his entitlement on the 2nd of April, 2013. Placing both evidence on the balance of probabilities coupled with the unequal position of both parties in the contract, I believe the evidence of the claimant that he was not paid his terminal benefit because he could not produce his ID card as corroborated by DW1. It is also the basic principle of the law that an employer can terminate the employment of its employee for no reason, but where a reason is given for so doing, the onus is on the employer to prove it by showing that it acted within the terms of the contract of employment. While the claimant argued that he was not given any query, the defendant contended that it gave him a query for insubordination, and terminated his employment for that reason. In support of its assertion the defendant tendered through its witness exhibit KJ4. The claimant denied receipt of these two memos dated 18th March, 2013 and 20th March 2013, respectively. These according to the claimant were fathomed by the defendant after it received the letter from the Human Rights Development International dated 14th March, 2013, requesting for compensation for injury he sustained in the course of his employment with the defendant. It is clearly stated in the memo dated 20th March, that the alleged memo querying the claimant for insubordination, the basis for which the defendant disengaged the services of the claimant was not received by him. The implication of this is that the claimant was not in receipt of any query before his employment was terminated. There is nothing/acknowledgment on the memo to show that the claimant received Exhibit KJ4. Thus, exhibit KJ4 being alien to the claimant is hereby discountenanced. It is consequent upon all that have been stated supra, that I find that the defendant could not substantiate the reason for which it disengaged the employment of the claimant, hence I also find that the contract of apprenticeship/employment between the claimant and the defendant was terminated wrongfully. Accordingly, the claimant is entitle to damages for wrongful termination of contract of employment. In awarding damages in this regard what the Court shall consider is what would have been the amount the claimant would have been entitled to if he was not disengaged wrongfully, i.e. the period of notice he was to have been paid and any other entitlements. In this case the claimant's entitlements are two weeks salary in lieu of notice and March, 2013, salary, plus his over time. (The total of which is N30,375). The next issue to consider is whether or not the defendant owed any duty of care to the claimant; whether the defendant was negligent in that regard and thereby liable to pay damages to the claimant. It is the contention of the claimant as evinced in his pleadings, witness statement on oath and written submission that the defendant was negligent for failing to take reasonable care in ensuring his safety while working with the defendant. While the defendant posited that the claimant failed to comply with their safety instruction to use his personal safety equipment. What this Court is to decide in this instance is whether there is a causal link between the injury sustained and the injury must have arisen out of and in a place of work. It is also important to establish that the injury was caused by the negligence of the defendant. The claimant averred that on the 15th of February 2013, when he resumed at work at 8.am, his supervisor, one Mr. Sainty instructed him to terminate a cable from top and bring it down. He continued that he was standing on an iron channel dragging down the cable when suddenly the cable bounced back, dragged him from where he was to an iron and the iron cut off his second upper phalange of his left finger, thereby permanently deforming him. According to him he was neither given any training nor given any personal safety equipment to work with and that his injury was caused by the failure of the defendant to provide him with personal safety gadget for use. Section 23 of Factories Act CAP F1 LFN 2007 provides thus- '' No person shall 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- (a) has received a sufficient training to work at the machine or on the process; or (b) Is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process. The above provision is to the effect that no person should be employed or allowed to work on any 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 taken or observed, or must be under adequate supervision of a person who has a thorough knowledge and experience of the machine. This was the position of the Court also in GREEN PACK RUBBER IND.LTD V OSSAI [2014] 2 FWLR (PT. 194) 668; There is nothing on record to show that the claimant was fully instructed as to the dangers likely to arise in connection with the termination of the cable. The only evidence before the Court is that the defendant urged him to use safety gadget but he refused and the supervisor who according to DW2 i.e. the safety officer, ought to have put the work on hold when the claimant did not use the personal safety gadget. But there is nothing on record to evince that claimant supervisor, the said Mr. Sainty stopped or put the work on hold, hence if I may use the words of DW2, put the life of the claimant at risk and that eventually cost an injury to his left finger which was cut off by an iron. Would it be right, from the above evidence to hold that the claimant supervisor, Mr. Sainty exercised his duty of care towards ensuring the safety of the claimant a trainee at the defendant's company? The answer is No! There is equally no evidence to proof that there was any supervision of the claimant at the scene of the accident as prescribed by the Factory's Act supra. In WESTERN NIGERIA TRADING COY. LTD V BUSARI AJAO [1965] NMLR, 178, the Court held inter alia that it was the duty of a company at common law not to only provide safety protective equipment but to ensure that they are used by strict orders and effective supervision. DW1 stated under cross examination that a safety training was conducted by the defendant to its staff but the claimant was not in attendance, and when asked, what punishment was meted out to the claimant he answered- ''Nothing''. DW2 i.e the safety officer gave evidence under cross examination that he instructed the claimant to go and collect safety equipment, he was not his supervisor, he admitted that claimant's supervisor ought to have ensured a strict compliance with the safety policy. He went on to state that he did not know that the claimant did not obtain the safety equipments and claimant's supervisor did not report to him that the claimant refused to use his safety equipments. The law is that an employer is responsible to an employee for an accident caused by the negligence of any other employee acting within the scope of his authority. Accordingly, failure of the claimant's supervisor to give adequate/sufficient training to the claimant and to also insist that he uses the safety gadgets before urging him to terminate the cable is the responsibility of the defendant. The maxim respondent superior applies. What this implies is that the defendant failed to abide by the absolute duty of care imposed by law. Failure of the defendant's safety officer to give adequate training to the claimant before granting him access to work in its factory, particularly on cables and coupled with claimant's supervisor's failure to ensure strict compliance to its safety procedure is fatal to the defendant's case. I am entirely in agreement with the claimant's counsel that the alleged safety training workshop organized by the defendant and the purported accident report, i.e. exhibits KJ3 and OS1 are both sham, prepared for the purpose of this case. It thus offends Section 83 of the Evidence Act 2011. It is clear from the face and content of both documents as was also admitted by DW2 that there were remarkable differences in exhibit OS1 frontloaded and the one tendered in Court. Exhibit KJ3 was also prepared in a haste to cover up the defendant's tracks and failure to ensure that it gives adequate training to its staff. Whilst on the frontloaded exhibit OS1, it is titled SAFETY REPORT ON THE ACCIDENT'' the one tendered and marked is titled '' ACCIDENT REPORT''; Under ''UNSAFE ACT'' it is stated on the frontloaded document thus- '' single handedly draw the cable...'' it is written on the one tendered in Court thus--'' Singly drawing the cable...'' While the conclusion of the tendered document states thus- '' He did not come to collect the hand glove and safety harness, knowing fully that he has to kit up properly with all safety devices, before taking up such job. It was an obvious act of negligence. As per the standard procedures, and training and training given any hazard job to be done, they need to collect the safety items from the Safety Officer before proceeding on the task''. Lastly the frontloaded exhibit OS1 was not signed, whilst the one tendered was signed by one Olofu Ejeh. This is clearly a fraudulent act perpetrated by the defendant by distorting and quickly making out documents for the purpose of covering up its unlawful acts and inadequacies in ensuring the safety of its staff. It is consequent upon this that exhibits KJ3 and OS1 are held to be documents generated when this suit is pending and meant to overreach the claimant and both documents are hereby discountenanced. Statutory obligation is equally imposed on a owner of a factory to ensure that its workers use safety equipments and adhere to the safety policy and to properly and securely fence every dangerous part of any machinery to secure the safety of every person on the premises from coming in contact with the dangerous part of the machinery. See Section 17 (1) of the Factories Act. From the evidence before the Court, the claimant was injured while working on the defendant's electrical cables. Again there is no evidence on record to show that all the above precautions were made by the defendant before permitting/allowing the claimant to handle its electrical cables. The obligation to fence every dangerous part of the factory and machinery is to guard against danger. The law is trite that when a statutory duty or obligation is imposed on a party, and there is a breach of that duty/obligation which is a cause of that accident, the party who breached that duty will be held liable for negligence. Having held supra that there is no proof that the defendant observed the duty of care imposed on it, there is also no evidence that the claimant broke the causation chain. thus the claim of the defendant that it was the negligence of the claimant by his refusal to use the safety equipment that resulted in the injury he sustained cannot be sustained. Now, is the defendant negligent? The liability imposed on a company at common law is the same as the general duty imposed on all people to take reasonable care to avoid injuring their neighbors. See the case of ADETONA V EDET [2004] 16 NWLR (PT. 899) 338. The Court in I.I.T.A. V AMRANI [1994] 3 NWLR (PT. 332) 296. held that- ''The standard of a master's duty towards his servant is to see that reasonable care is taken; the scope of that duty extends to the provision of safe fellow servants, safe equipment, safe place of work and access to it and safe system of work.'' Having held that the defendant failed in its duty of reasonable care towards the safety of the claimant, in consequence of the above the claimant has succeeded in making out a case of negligence against the defendants for exposing him to the dangers inherent in terminating the electric cable without sufficient training, provision of safety equipments and supervision. I so find and hold. Now, is the claimant entitle to his claims? The claimant is claiming the sum of N12,000,000.00 as compensation, N10,000,000.00 for injury, pain and permanent deformity of his left finger. His claim is based on what he called loss of means of his livelihood. It has been decided in this judgment earlier that the defendant is negligent in exposing the claimant to the work on its life electric cables without sufficient training, use of safety gadgets and supervision leading to the injury he sustained by losing his left finger. It is obvious that the claimant cannot use his left hand adequately without feeling the impact of the absence of one of his fingers, this was visible as observed by the Court during trial, when the Court asked to see it. It is consequent upon this that the Court finds and hold that the claimant is Although both parties agreed that the defendant paid the claimant's medical bill at the defendant's retained clinic, there is nothing on record showing the amount paid for the 6 days he was hospitalized. It is the claimant's contention that he was abandoned by the defendant in the hospital without care. He was then asked to resume to work immediately with the wounds and blood still fresh on the wound. This according to him caused a lot of excruciating pain and sleeplessness to him. Hence his claim for pain. There is no evidence on record that the defendant is a contributor to the employer's contributory fund as required by Section 33 of the Employees' Compensation Act. Hence the claimant cannot make any claim under that law. In compliance to the latin legal maxim, ubi jus ibi remedium, meaning where there is a right there is a remedy. It also means right of action as well as remedy. Thus where ones right is invaded or destroyed, the law gives a remedy to protect it, or damages for a loss suffered. It is in that regard and having held that the claimant's injury was caused by the negligent and failure of the defendant to exercise the duty of care owed the claimant, the claimant is entitle to damages in form of compensation. what then is the reasonable compensation that may be adequate as damages for the claimant's injury. The law is trite that Courts in assessing the compensation to award , the injured person's station in life is not a determining factor, it is the degree of disability that counts. The medical report issued by one Dr. Shirish Tanksale, states that the nature of claimant's injury is auto-amputation of left middle terminal phalange due to industrial accident. The stump was sutured and refashioned. Could this be said to be a permanent disability? The defence submitted that the claimant's injury is not more than 0.5%. and urged the Court to adopt the provision of the second schedule to the Employee's Compensation Act, in awarding damages. I went through the second schedule to the Act and discovered that the loss of one philange is 10% disability. How much in monetary terms can reasonably and adequately compensate the claimant who has suffered a 10% disability in the course of his employment with the defendant and also compensate for the excruciating pains he suffered? No one can ascertain the level of pain suffered by another person, not even a medical doctor can. Be that as it may, I wish to consider also awards made in similar cases in this Court as advised by the Court of Appeal in JULIUS BERGER (NIG.) PLC V NWAGWU [2006] 12 NWLR (PT. 995) P.51. The law is of moment that general damages in personal injury cases are sums of money paid as compensation for the loss suffered by the injured person. It is in consideration of all the above that I make the following Declarations and Orders- 1. It is hereby declared that the disengagement of the claimant by the defendant on 30th March, 2013 is wrongful. 2. It is also declared that failure of the defendant to provide the claimant with safety equipments, sufficient supervision on the termination of the armored cable on a height rail resulted in the injury to his left hand middle philange . 3. It is equally declared that the claimant is entitled to damages for the negligence of the defendant. 4. The defendant is ordered to pay the claimant the sum of N500,000.00 (Five hundred thousand naira) as damages for the injury he sustained as a result of the defendant's negligence. 5. The defendant is also ordered to pay the sum of the sum of N30,373.00 for wrongful termination of claimant's employment 6. The cost of N50,000.00 is awarded in favour of the claimant. 7. All sums awarded are to be paid within 30 days of this judgment. Judgment entered accordingly. HON. JUSTICE OYEWUMI OYEBIOLA O. JUDGE