AZAGBA V HOTEL PRESIDENTIAL, PORT HARCOURT & ANR

AZAGBA V HOTEL PRESIDENTIAL, PORT HARCOURT & ANR


IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

ON THE 1ST DAY OF DECEMBER, 2015


SUIT NO: NICN/PHC/59/2013

CITATION: NIC (2015) 12 LLER 5

CORAM:
HON. JUSTICE O. Y. ANUWE


BETWEEN

MR. ONYEMA AZAGBA

(CLAIMANTS)

AND

1. HOTEL PRESIDENTIAL, PORT HARCOURT

  1. COURDEAU NIG. LTD.

RESPONDENTS


REPRESENTATION
V. Y. Taiwo (Mrs.) for the Claimant

B. N. Ohuo esq. for the Defendants

PRONOUNCEMENTS

A. DAMAGES
1. Special Damages–What a claimant must prove to be entitled to special damages

Special damages, as claimed by the claimant, are those pecuniary losses actually suffered by the claimant. They can generally be subject of exact calculation. In personal injury cases, items under special damages may include various expenses and loss of earnings. The law requires such damages to be specifically pleaded and strictly proved. In other words, items constituting the claim for special damages must be particularised in the pleading and proved by cogent evidence. See IYERE vs. BENDEL FEED AND FLOUR MILL LTD (SUPRA) at 1251; OZIGBU ENGR. CO. LTD vs. IWUAMADI (2011) All FWLR (Pt. 553) 1975 at 2000. In effect, evidence must be produced for easy ascertainment, qualification and calculation of the sum claimed as special damages. The claimant merely sought the sum of N1,000,000.00 as special damages without pleading the items constituting the claim. Special damage was not pleaded nor is there any evidence to substantiate the claim for special damages. Without much ado on this claim, the claimant did not meet the requirement of the law on claims in special damages. I also find the claim for special damages unmeritorious. READ IN CONTEXT

B. LABOUR LAW
2. Duties of the Employer–Employer’s duty of care; what amounts; On whom lies the burden to prove breach of same?

Where there exists a service relationship between an employer and an employee, the employer is under duty to take reasonable care for the safety of the employee. The level of this duty is the same as that of the employer’s common law duty of care in the law of negligence. The burden of proof in an action for damages in personal injury rests primarily on the claimant who must show that he was injured by a negligent act or omission of the defendant. Once a claimant has successfully shown that he suffered personal injury as a result of a breach of a duty of care owed him by the defendant, he will be entitled to both general and special damages. See IGHOSEWE vs. DELTA STEEL COMPANY LTD 2008 All FWLR Pt. 410 741 at 757. The question at this point is “whether the claimant has made out a case to entitle him to award of both general and special damages.’ READ IN CONTEXT

C. TORT
3. Personal Injury–What claimant must prove to succeed in an action for personal injury

General damages is implied by law and it flows from the wrongful act of another. A person injured by another’s wrong is entitled to general damages as compensation for non-pecuniary loss such as pain, suffering and loss of amenity and enjoyment of life suffered by the injured party. To be entitled to general damages in personal injury cases, the claimant must show that he sustained an injury or damage and it resulted from the negligent act or wrong of the defendant. See IYERE vs. BENDEL FEED AND FLOUR MILL LTD (2009) All FWLR (Pt. 453) 1217 at 1244. Therefore, the focus in a claim in personal injury is the negligent act and the resultant damage. Damage alone does not give a cause of action, so also, negligence alone does not give a cause of action. The two must co-exist to found an action in personal injury and they must be proved by the claimant. READ IN CONTEXT

D. WORKMEN COMPENSATION ACT
Compensation for Accident at Work Place–Is a failure to make an application for compensation under the Act within six months of the happening of the accident fatal to the workman’s claims?

From the facts, the claimant had ample time and opportunity to apply for compensation. I cannot find any act of mistake or any other reasonable cause to excuse the claimant’s failure to apply for compensation within 6 months of the injury. It is trite that where a statute prescribes a condition precedent for institution of suit, non compliance with the conditions renders the suit incompetent and it also affects the jurisdiction of the court to entertain the action. It is trite that a court is competent to entertain a suit when, among others, the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. See MADUKOLU vs. NKEMDILIM (1962) 3 SCNLR 34; DREXEL ENERGY AND NATURAL RESOURCES LTD vs. TRANS INTERNATIONAL BANK LTD (2008) 12 S.C. (Pt. II) 240. Furthermore, failure to comply with the statutory requirement prescribed by the relevant statute under which a claim is brought will deprive the court of jurisdiction to adjudicate on the claim. See AUTO IMPORT EXPORT vs. ADEBAYO (2003) FWLR (Pt. 140) 1686. In this instant case, I find that one of the condition precedents to confer this court with jurisdiction to entertain the claimant’s claim under the Workmen’s Compensation Act has not been fulfilled or observed. Consequently, the claim sought by the claimant under the Workmen’s Compensation Act is incompetent and it should be dismissed. READ IN CONTEXT

4. Nature of Claims under Workmen Compensation Act

The Workmen’s Compensation Act 2004 made provisions for the payment of compensation to workmen for injuries suffered in the course of their employment. Claims brought under the Act are more like strict liability claims. Unlike claims brought under the tort of personal injury where the claimant must prove negligence on the part of the employer to succeed, under the Act, all that is necessary to be shown for the employer to be liable to pay compensation is that the claimant was an employee and the injury was sustained in the course of the employment. READ IN CONTEXT

JUDGEMENT

This suit was initially commenced in the High Court of Rivers State on the 5th day of September 2002 before it was subsequently transferred to this court by an order of transfer made on the 11th day of March 2013 by Hon. Justice Ben. E. Ugbari of the High Court of Rivers State. The case file was forwarded to the Port Harcourt Division of this court vide a letter dated the 30th day of April 2013; and subsequently transferred to Owerri Division on the 1st day of August 2013 for adjudication. Upon the matter coming up for the first time on the 24th day of September, I ordered parties to re-file their processes to bring them in compliance with the rules of this court. This order was made without prejudice to the original date of commencement of the action at the Rivers State High Court being 5th September 2002. By his complaint filed on the 26th day of November 2013 in compliance with the order to re-file, the Claimant claimed as follows:

  1. The sum of N9,000,000.00 (Nine Million Naira) being general damages for the injury sustained by the claimant in the course his work with the defendants which has incapacitated his right hand.
  2. The sum of N1,000,000.00 (One Million Naira) as special damages for the injury sustained by the claimant in the course of his work for defendants.

And/or

  1. The sum equals the claimant’s salary, at the time material to this suit, for Fifty Four (54) months, in accordance with the provisions of the Workmen’s Compensation Act.

Along with the complaint, the claimant filed a Statement of Claim, List of Witnesses, Written deposition on oath, List of documents and copies of documents to be relied upon at the trial.

On the 17th day of December 2014, the Defendants filed their Statement of Defence, list of witnesses, written deposition on oath, list of documents and copies of documents to be relied upon at the trial.

Hearing commenced on the 26th day of February 2014. The claimant testified for himself as CW1, while Mr. Charles Tunde Beckley testified for the defendants as DW1.

At the close of hearing on the 29th day of April 2015, parties were ordered to file their final written addresses in accordance with the rules of this court.

The defendants filed their Final Written Address on the 26th day of May 2015, and the final written address of the Claimant was filed on the 10th day of June 2015. The defendants filed a reply on points of law on the 22nd June 2015.

In the mean time, on the 10th day of June 2015, the Claimant also filed a motion on notice to amend his statement of Claim to include paragraphs 10(a), 12(a) and 12(b). In moving the application for amendment on the 30th day of June 2015, counsel submitted that the purpose of the amendment was to bring the pleadings in line with the evidence already given. The defendants had filed a counter affidavit in opposition, and arguments were taken accordingly, and the court resolved in favour of the amendment. The Claimant was ordered to file a clean copy of the amendment so granted within 3 days, and the case was adjourned for adoption of Final Addresses. Counsel complied accordingly.

Parties adopted their respective written addresses on the 2nd day of October 2015.

In the defendants’ final address filed on 26/5/2015, counsel raised 3 issues for determination:

  1. Whether the claimant has led credible evidence to sustain his claim of personal injury by accident in the course of his employment with the 1st defendant.
  2. Whether 1st defendant was justified to have summarily determined the employment of claimant on 10/9/02.
  3. Whether the claimant is entitled to the reliefs claimed in this suit.

The brief statement of facts according to the defendants’ counsel is that the claimant allegedly suffered a permanent disability to his right hand as a result of an accident he had on duty on 5/6/01 while pushing a trolley containing serving plates and other things. After the alleged accident of 5/6/01 which resulted in permanent disability to the claimant’s right hand, the claimant continued to work in the 1st defendant’s Banquet section, where the alleged accident took place, until 3/4/02, when in furtherance of the 1st defendant’s policy to transfer employees from one section/department to another to ensure effective management, the claimant was transferred from the Banquet Section to the General Cleaning Section. The Claimant protested against this transfer and refused to resume nor continued at his previous duty post and was eventually issued a query dated 10/4/02 for absence from work for seven (7) days. Rather than reply the query dated 10/4/02, and/or resume work at the banquet or general cleaning section, the claimant wrote two (2) letters dated 29/4/02 and 7/8/02 through his Solicitors, demanding for compensation, and ultimately commenced this suit at the Rivers State High Court on 5/9/02, which was eventually transferred to the National Industrial Court, Owerri Division, sometime in September, 2013.

In arguing the first issue, counsel stated that in order for the court to determine whether the claimant has led credible evidence to sustain his claim of personal injury by accident in the course of his employment with the 1st defendant; the court ought to consider the evidence of the claimant’s sole witness together with the documents tendered in proof of the claim towards ascertaining their credibility. Counsel submitted that credible evidence is that worthy of belief and must proceed from a credible source; it should be natural in itself, reasonable, and probable in view of the entire circumstances. See DIM vs. ENEMUO (2009) 10 NWLR (Pt. 1149) 353 at 396 para. G. Counsel is of the view that the entire evidence adduced by the claimant in the instant suit, in proof of his claim neither is reasonable, probative, natural nor proceeds from a credible source. This is owing to the fact that the claimant has been in the 1st defendant’s employment since 1/7/97 but he told the court that he was employed by the 1st defendant in 1998, in order to avoid facts of negligence, disobedience and insubordination committed by the claimant between 1/7/97 and 1/1/98. Exhibits “DA 1 – DA 12” depicts that claimant has been in the employment of 1st defendant since July 1997. This evidence was not challenged or controverted by the claimant. Counsel submitted that when evidence is unchallenged, the court is entitled

to rely on it in coming to its decision. See the cases of:

  1. Mil. Govt. Lagos vs. Adeyiga (2003) 1 NWLR (Pt. 802) 589 @ 618, paras. D-E.
  2. Omoregbee vs. Lawani (1980) 3 SC. 108.

Also, in paragraphs 11, 12 and 19 of his written statement on oath, the claimant stated that he suffered permanent disability after dislocating and fracturing his right hand, following a fall he had on 5/6/01 when pushing a trolley. However this permanent disability suffered by the claimant injury is not substantiated in any of the exhibits tendered by the claimant particularly Exhibit “CA 3”. The document speaks for itself and oral testimony is inadmissible to vary, add to or take away from the content of a document. Again, it is not stated in the statement on oath that this accident was duly reported by the claimant personally or on his behalf by any other staff on duty with the claimant. Under cross-examination, the claimant alleged stated that he reported the accident resulting in the injury. The defendants however alleged that no accident of such magnitude and consequence occurred on 5/6/01. Counsel urged the court to hold that he who asserts must prove and that the onus or burden of proof that, a report or notice of accident and injury was made to 1st defendant is on the claimant. This burden according to counsel was not discharged. Particularly, as the alleged duty manager, Mr. Morgan was not called, the accident/incident records was not tendered, no other staff was called as witness, no notice was given to the 1st defendant to produce the records of the personnel or duty manager on 5/6/01. See:

  1. Section 13, Workmen’s Compensation Act, 1990
  2. Rule 2(1), Workmen’s Compensation Rule.
  3. Rule 6, Junior Staff Conditions of Service (Exhibit “CA 9”) See also the cases of:
  4. NIDB vs. Olalomi Ind. Ltd. (2002) 5 NWLR (Pt. 761) 532 at 555, para. G.
  5. Crushed Rock Ind. Ltd. vs. Ububa (2002) 8 NWLR (Pt. 770) 522 at 552, para. D

Furthermore in paragraphs 13 – 18 of his written statement on oath, the claimant alleged that after the accident on 5/6/01, he underwent medical examination in 1st defendant’s medical centre, Ebony Hospital and St. Francis Hospital Limited; where he was diagnosed to have had dislocation and fracture of the right clavicle, booked for surgery at St. Francis Hospital but defendants failed, refused or neglected to release money for the surgery and was discharged by the Medical Director of St. Francis Hospital without the needed surgery which could have prevented a permanent damage to his right hand. The claimant failed to tender any medical examination report from any of the above-mentioned medical organizations showing the alleged injuries. It is in evidence, and admitted by the claimant under cross-examination, that claimant and members of his family are entitled to medical treatment, which are not limited to injuries or ailments gotten in the course of duty, at 1st defendant’s medical centre and St. Francis Hospital, one of the retained hospitals of the 1st defendant.

The claimant also admitted under cross-examination that he underwent surgery for Acute Appendix on 30/6/98 at St. Francis Hospital and the bills of the surgery were paid by the 1st defendant without recourse to the claimant. Nowhere in the Statement of Claim, Witness Statement on Oath, other processes and documents filed, or under cross-examination can it be deduced that the claimant complained to the 1st defendant that St. Francis Hospital refused to treat or carry out the surgery on him after the alleged accident of 5/6/01. Exhibit “CA 3” (letter from St. Francis Hospital dated 25/7/01) on which claimant anchors or situates his claim of injury of dislocation and fracture of right hand was issued almost eight(8) weeks after the alleged accident on 5/6/01 and did not specifically state that the claimant had suffered permanent disability as alleged by the claimant. The said letter (Exhibit “CA 3”) was purportedly issued by the same hospital which had earlier allegedly refused to treat/carryout the surgery on the claimant because the 1st defendant will not pay the hospital, as alleged by the claimant. In fact, the claimant continued to work at the Banquet Section after 25/7/01 until 3/4/02 (almost one year) before he was transferred to the General Cleaning Section which claimant alleged was a more strenuous and rigorous section. He did not lead any evidence to prove that the general cleaning section is more strenuous and rigorous. According to counsel, the claimant’s failure to tender any evidence in proof of this allegation makes the allegation speculative. Counsel submitted that a court is not entitled to assume anything or speculate about anything because it is dangerous and unfair to do so and it often times leads to miscarriage of justice. See: U.T.B (Nig.) vs. Ozoemena (2007) 3 NWLR (Pt. 1022) 448 @ 487, para. C. Counsel urged the court to resolve issue 1 in favour of the defendants by holding that the claimant has not led credible evidence worthy of sustaining the claim in this suit.

Learned counsel for the defendants in his argument on issue 2 stated that, it is in evidence that the claimant was in the employment of the 1st defendant from 1/7/97 to 10/9/02. This presupposes that the claimant is conversant with the policies of the defendants which claimant admitted under cross-examination and therefore bound by Exhibit “CA 9” (1st Defendant’s Junior Staff Condition of Service) and the provisions of the Workmen’s Compensation Act.

Mr. Charles Tunde Beckley testified as the defendants’ sole witness and during cross-examination, claimant’s counsel strongly argued that Mr. Beckley had personal knowledge of the facts/issues in dispute in this suit. The defendants’ witness stated that he was the Assistant General Manager of the 1st defendant and that in 2000 he was elevated to the position of Group Assistant General Manager, Courdeau Nigeria Limited, Managers of the 1st defendant and that decisions taken by the 1st defendant are subject to approval of the Group in its weekly meetings. Counsel submitted that the defendants’ witness’ evidence was not successfully challenged and controverted. More so, the fact that an official of a corporate body was not present when a particular transaction took place does not affect the cogency of the evidence of such official, and the line of questions touching on DW1’s personal knowledge of the facts goes to no issue.

See: B. O. N. Ltd vs. Saleh (1999) 9 NWLR (Pt. 618) 331 at 347, paras. D-E

Also, in paragraph 43 of the Statement on Oath, DW1 stated that at all material times, the defendants have always taken adequate medical and other care for all their employees including the claimant as evinced by Exhibits DA 16, DA 17 and DA18, and claimant’s admission that the bills for the Acute Appendix Surgery he underwent on 30/6/98 were paid by the 1st defendant without recourse to him. These evidences were neither challenged nor contradicted; the court was urged by counsel to rely on them. See the cases of:

  1. Mil Govt. Lagos vs. Adeyiga (supra)
  2. Omoregbee vs. Lawani (supra)

Counsel also stated that as gathered from the defendants’ evidence, the claimant made a habit of not reporting to the 1st defendant before taking any other step, which is a clear and vagrant violation of the policies, rules and regulations of the 1st defendant. In paragraphs 38 and 39 of the statement on oath, DW1 stated that the 1st defendant got to know of claimant’s emergency surgery for Acute Appendix on 30/6/98 when claimant presented a referral note (Exhibit DA 18) from the 1st defendant’s Medical Center’s Resident Doctor, after he was issued a query for failing to report to work for seven (7) days without permission. In like manner, the alleged accident on duty of 5/6/01 was not reported, there are no referral notes from the Resident Doctor at 1st defendant’s Medical Centre and Ebony Hospital which allegedly examined claimant; no report/letter from St. Francis Hospital to the 1st defendant that claimant is scheduled for surgery and ultimately, no complaint to the 1st defendant by the claimant that St. Francis Hospital refused to carry out surgery to treat alleged injury to his right hand.

Further, in line with the 1st defendant’s internal transfer policy to which claimant is very conversant with, Exhibit “CA 4” dated 3/4/02 was issued transferring the claimant from the Banquet to General Cleaning Section. It is in evidence that after the purported issuance of Exhibit “CA 3” on 25/7/01, which did not state claimant suffered permanent disability, claimant continued to work in a lighter department of the Banquet Section (see paragraph 51 of DW1 statement on oath) where the alleged accident of 5/6/01 took place until 4/4/02. It is also in evidence that the claimant on 14/2/02, applied to be transferred to the Pool Side Bar which was refused. Rather than resume at the General Cleaning Section, claimant wrote a protest letter on the same 4/4/02, and stopped work both at the Banquet and General Cleaning Sections without awaiting the outcome of investigation of his protest/complaint (Exhibit “CA 5”) contrary to Rule 18 of the Junior Staff Conditions of Service (Exhibit “CA 9”). Following the claimant’s continued absence from work, Exhibit “CA 6” was issued requesting claimant to respond within 24 hours. Claimant did not do so. His protest was later considered and on 26/4/02 was transferred to the Laundry Department as steward.

The claimant rejected the transfer and engaged his Solicitor to write Exhibit “CA 7” demanding N10,000,000.00 (Ten million naira) as compensation for an alleged injury sustained on duty which resulted in disability. He did not resume work and subsequently commenced this action at the Rivers State High Court on 5/9/02 before it was transferred to this Court. Clearly, the action of the claimant willfully abandoning his duty for over five (5) months amounts to insubordination and disobedience. Counsel contended that once it is established that a relationship of Master and Servant exists, it carries all attendant consequences, one of which is the right of a Master to terminate the service of the servant, particularly where the servant is insubordinate, disobedient and/or abandons his job. The word “insubordination”

connotes disobedience. Wilful disobedience to a lawful order or command of a Superior Officer has been judicially interpreted quite rightly to mean insubordination. Therefore, disobedience of an employer’s lawful order and/or insubordination by an employee is an act of misconduct which may justifiably attract the penalty of summary dismissal, termination or compulsory retirement of the employee concerned. However, an employee who abandons his job is deemed to have committed a major breach of contract of his employment. Such a breach is so fundamental that the employer is entitled to treat the contract as having been duly terminated. Counsel therefore, urged the court to hold that the employment of the claimant has been duly terminated by the act of abandonment of duty for a continuous period of over five (5) months, Exhibit “DA 27” is therefore unnecessary. See the cases of:

  1. Nwobosi vs. A.C.B Ltd (1995) 6 NWLR (Pt. 404) 658 at 674, paras C-G.

2 University of Calabar vs. Essien (1996) 10 NWLR (Pt. 477) 225 at 262, paras E – F.

3 Jeremiah vs. Ziregbe (1996) 7 NWLR (Pt. 460) 346 at 356, paras D-E.

In light of the foregoing, counsel urged the Court to resolve issue 2 in favour of the defendants, and hold that the claimant has been most unfair to the defendant. He deserves the summary termination of his employment.

With respect to the Claimant’s two reliefs claiming monetary damages and the alternative relief for the sum equals his salary for fifty four (54) months, counsel argued that the statement of facts and the claimant’s evidence do not establish that the permanent disability of claimant’s right hand was occasioned by the defendants’ unlawful act, omission or negligence. Under the Workmen’s Compensation Act, an employer is liable to pay compensation if in an employment, personal injury by accident arising out of and in the course of the employment is caused to a workman. An employer however, shall not be liable to pay compensation under the Workmen’s Compensation Act in respect of any injury which does not incapacitate the workman from earning full wages at the work at which he was employed. It is however, worthy of note that the claimant’s alternative relief relates to the amount of compensation payable in a case where permanent total incapacity results from the injury, and that permanent incapacity is different from permanent injury. See Section 3(1), 3(2a) and 5, Workmen’s Compensation Act, 1990.

It is the submission of counsel that claims for compensation for injury by accident arising out of employment is not granted as a matter of course. To succeed, a claimant must lead credible evidence in accordance with the provisions of the workmen’s compensation Act. In other words, stating one’s claim is different from producing credible evidence to prove the same. See Gezoji vs. Kulere (2012) 4 NWLR (Pt. 129) 458 at 477, para E.

In paragraphs 8, 9 and 10 of the Claimant’s Witness Statement on Oath, the Claimant alleged that while he was pushing a trolley saddled with serving plates and other items, one of the stands suddenly collapsed and claimant fell down heavily on top of the said trolley and dislocated/fractured his right hand. Under cross-examination, claimant admitted that the items on the trolley includes breakable cups and plates; that stocks are usually taken after each day’s work and that if there are shortages or damages in service items, including breakable cups, plates, tables, chairs and trolleys, staff (including the claimant) are notified. From the foregoing evidence, counsel urged the court to hold that there was no such accident causing permanent disability to the claimant on 5/6/01.

According to the defendants, all through the length and breadth of the statement of claim and written statement on oath of the claimant, nowhere was it stated that the claimant, or any other person on his behalf, reported the accident to the 1st defendant. However, during traverse and under cross-examination, the claimant stated that he reported the accident, and unfortunately, none of the documents tendered or filed in this court is a report/notice to the 1st defendant of the alleged accident on 5/6/01. Exhibit “CA 3”, on which claimant premised his claim, was made on 25/7/01, almost eight (8) weeks after the alleged accident. The Personnel or Duty Manager was not called as a witness and no notice to produce the records of accidents was given to the 1st defendant, its Personnel or Duty Manager. It is submitted that proceedings for the recovery of the sum equals claimant’s salary, at the time material to this suit, for fifty four (54) months as compensation for the alleged injury suffered on 5/6/01 cannot be maintained unless notice of the accident has been given by or on behalf of the workman as soon as practicable, after the happening thereof. It is further submitted that notice in respect of an injury shall be given in writing by the employee, or by someone acting on his behalf, to the employer or to any person designated by the employer. Counsel urged the court to find in the circumstance, that the alleged accident of 5/6/01 was never reported to the 1st defendant. See: 1. Section 13(1a), Workmen’s Compensation Act, 1990.

2 Rule 2(1), Workmen’s Compensation Rules.

3 Rule 6, Junior Staff Conditions of Service (Exhibit “CA 9”).

Regarding the third issue for determination, counsel urged the court to hold that the alleged injury of 5/6/01, if any, did not result in a loss of earning capacity by the claimant. Counsel submitted that, the claimant did not lead any medical evidence to show that he was incapacitated from earning full wages between 5/6/01 and 25/7/01. In fact, no evidence was tendered by the claimant to prove that the claimant did not earn full wages between 5/6/01 and 25/7/01 on account of the accident/injury. Rather there are avalanche of credible evidence before the court showing that the claimant continued to work and earned full wages (because there is no evidence to the contrary) in the 1st defendant after the alleged injury on 5/6/01 until 4/4/02 when he abandoned his job. Assuming the court holds that there was an accident and same was reported, the onus is still on the claimant to medically prove that between 5/6/01 and 25/7/01, he was incapacitated from earning his full wages by reason of the injury. In other words, medical evidence must be led to show reduction in earning capacity by reason of the injury. Also, evidence must be led showing that the claimant did not earn full wages in accordance with the Workmen’s Compensation Act which states that where temporary incapacity, whether total or partial, results from the injury, the injured workmen’s basic pay shall continue to be paid for the period between 5/6/01 and 25/7/01. This the claimant did not do. In the absence of any evidence in this regard, it is submitted that the defendants shall not be liable to pay compensation in respect of an injury which does not incapacitate the claimant from earning full wages at the work at which he was employed. He urged the court to so hold. See: 1. Western (Nig.) Trading Co, vs. Ajao (1965) NMLR 178 at 182 – 183.

2 Section 3(2)(a), Workmen’s Compensation Act, 1990.

3 Section 9 (1)(a), Workmen’s Compensation Act, 1990.

Finally, Counsel stated that the Workmen’s Compensation Act provides a comprehensive procedure under which an injured employee may seek redress in court from his employer. In particular, it is provided that proceedings for the recovery of compensation for an injury shall not be maintainable unless an application for compensation with respect to such accident has been made within six (6) months from the occurrence of the accident causing the injury. Thus Six (6) months from 5/6/01 means not later than 5/12/01. The claimant commenced this action originally on 5/9/02 at the Rivers State High Court before it was transferred to this court. Also, under cross examination, the claimant admitted that demand for compensation was first made on 29/4/02 through Exhibit “CA 7” after Exhibits “CA 4”, “CA 5” and “CA 6” had been issued and written. This admission impugns on the jurisdiction of this court. It is the submission of counsel that a court can only be competent when the case comes by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. See the cases of:

  1. A. O. Obasuyi & Sons Ltd. vs. Erumiawho (1999) 12 NWLR (Pt. 630) 227 at 238, paras. D – E.
  2. Opobiyi vs. Muniru (2011) 18 NWLR (Pt. 1278) 387 at 403, para. D

Counsel therefore urged the court to answer the question raised in issue 3 in the negative and hold that the claimant is not entitled to the reliefs claimed in this suit. The court was also urged by counsel to dismiss the claimant’s claims in their entirety.

In the final written address of the Claimant filed on the 10th day of June 2015, Learned Counsel for the Claimant raised two issues for determination:

1) Whether the claimant has discharged the burden of proof on him by a preponderance of evidence that he sustained personal injury in the course of his employment with the 1st defendant.

2) Whether the defendants have adduced credible and admissible evidence to discharge the burden of proof on them that they exercised due care and diligence such as will exonerate the defendant from liability.

Counsel stated in her argument of the first issue that in order for the claimant to succeed in his action for damages for personal injuries sustained at his work place in the course of his normal duty; the claimant must establish first, that the defendant was his employer. He must show also that his employer owed him a duty of care and that the said duty of care was breached, which led to the injury sustained or permanent disability of the claimant. See the case of: C & C Construction Co. Ltd. vs. Okhai (2003) 18 NWLR (Pt. 851) pg. 79 at 168. Secondly, the claimant must establish the fact of the injury which he sustained in cause of his duty. See also the case of Strabag Const. (Nig.) Ltd vs. Ogarekpe (1991) 1 NWLR (Pt. 170) p. 733 at 738 ratio 12. Counsel submitted that it is an established principle of law that an employer

has a duty of care to protect the health, welfare and safety of its workers at work and where the worker sustains injuries in a work related circumstance, the employer is liable to pay compensation to the worker. The said duty of care owed the claimant by the defendants was breached on two fronts as follows:

i. One of the legs of the trolley he was pushing gave way and the trolley collapsed, causing the claimant to fall on the trolley. The fall dislocated and fractured the claimant’s right clavicle. Counsel submitted this fact is simply a case of res ipsa loquitur.

ii. The claimant in his evidence said that the Hospitals diagnosed that he needed an orthopaedic surgery to treat the injury. The claimant was requested by the Hospitals to bring a letter of authority from the 1st defendant to enable them operate on him. The Human Resources Manager of the 1st defendant bluntly refused to give such authorization. The claimant not being able to afford the cost of the surgery was discharged from the Hospital. It is the claimant’s contention that the stated facts led to his incapacitation i.e. the fact that he could no longer perform the duty he used to perform but had to engage in a light duty job. This is submitted by counsel to be a breach of the duty of care to protect the health and welfare of its employee. See case of IITA vs. Amrani (1994) 3 NWLR Pt. 332) P. 296

It is the contention of counsel that the claimant adduced uncontroverted evidence of the fact that an accident occurred and he sustained serious injury, precisely the dislocation and fracture of his right clavicle. This fact is further corroborated by Exhibit “CA 3” a letter written to the 1st defendant by a hospital that defendants admits has on its medical retainership. The claimant further led uncontroverted evidence of the fact that the defendants were negligent in not giving authorization or paying for his surgery which could have prevented a permanent damage to his said hand. This is contained in paragraphs 16, 17, 18, 19, 20, 27, 28, 29, 30 and 31 of the claimant’s statement on oath.

Counsel submitted that the case of negligence has been established against the defendants. This is the negligence that led to the claimant’s permanent disability and therefore entitles the claimant to damages. Exhibit “CA 9” is the 1st Defendant’s Junior Staff Condition of Service Manual. Paragraph 6 thereof makes the provisions of the Workmen’s Compensation Act applicable in case of accident and/or injury to an employee while on duty. The law is trite that an injured employee can base his claim against his employer either on a breach of statutory duty under the workmen’s compensation Act or in the alternative, on a breach of the common law duty of care. See the case of Western Nigeria Trading Co. vs. Ajao (1965) NWLR (Pt. 178) at 180 – 181. Based on this position of the law the claimant claims in the alternative for compensation under the workmen’s compensation Act. Section 13 of the Workmen’s Compensation Act Cap, W6 LRN 2004 requires that:-

(a) Notice of the accident be given by or for the workman as soon as practicable after the happening thereof and before the workman voluntarily left the employment. and

(b) The application for the compensation be made within six (6) months of the occurrence of the accident. However, subsection (3) thereof states that failure to make the said required application for compensation within the prescribed period will not be a bar to the maintenance of proceedings for compensation where it is found that the said failure was occasioned by mistake or other reasonable cause. In the light of the above, we humbly submit that the claimant is entitled to recover compensation from the defendants haven suffered a partial permanent incapacity to his right arm which we can no longer deploy for any job requiring physical exertion.

See Section 7 and 2nd schedule of the Workmen’s Compensation Act. Proviso 1 to the 2nd schedule states that permanent loss of use of a member shall be treated as loss of such member. In view of the above argument, counsel urged the court to resolve this issue in favour of the claimants and give the claimant judgment in terms of his claims since the proof required of the claimant is on the balance of probability.

With respect to the second issue, it is counsel’s submission that the only witness for the defendant failed to establish that he had personal knowledge of the facts in this case. All the witness said and deposed to, was hearsay evidence which is inadmissible. Counsel urged the court to expunge same from the record of the court. Although the defendants are companies and must be represented by their official, the official or manager to give evidence on behalf of the company must be well placed to have personal knowledge of the transaction in question. See the case of Kate Enterprises Ltd. vs. Daewoo Nig. Ltd. (1985) 7 SC 1 at 19 – 20. The DW1 in this case under cross examination had said his office was at Trans-Amadi at the time material to this case whereas the 1st defendant had its own officials who manage its day to day activities with offices at Aba Road. Again, the claimant in his evidence said that he reported to both the duty manager Mr. Morgan on the accident and that he made a request to the Human Resources Manager for a letter of authorization to St. Francis Hospital to carry out surgery on him. These two officers of the 1st defendant did not testify to deny this assertion. Rather the DW1 purported to deny same on their behalf. It is counsel’s submission that DW1’s evidence is inadmissible because DW1 clearly had nothing to do with the issues in dispute. Counsel urged the court to invoke the presumption of law in Section 149(d) of the Evidence Act against the defendants. See also Jalico Ltd. vs. Owoniboys (1995) 4 SCNJ 256 at 269. In view of the above submissions and the facts before the court, counsel urged the court to find that the case for the claimant has been proved, and to give judgment in terms of the claimant’s claim.

In the 1st and 2nd defendants Reply on Law to claimant’s address, counsel reiterated that for the claimant to, succeed in a claim for damages for personal injury occasioned by an accident while on duty, there must be evidence that the said accident occurred and same was duly reported in writing by claimant personally or by some other person acting on his behalf. Counsel submitted that the only credible evidence, as required by law and the collective agreement embodying the condition of service between the defendants and the claimant, is a written report of the accident. There is no such evidence before the court other than that the accident was reported to Mr. Morgan. Interestingly DW1 stated that decisions taken at 1st defendant are subject to approval/ratification by the Group which meets weekly to consider various reports and that no such report was considered in their meetings. In the absence of any written report, Counsel urged the Court to hold that no such accident occurred on 5/6/01.

See:1. RULE 6, JUNIOR STAFF CONDITIONS OF SERCIE (EXHIBITS “CA 9”).

  1. RULE 2 WORKMEN’S COMPENSATION RULES.

Furthermore, counsel argued that the claim by the claimant that he left the Hospital after the defendants refused to issue the authority letter contradicts his earlier statement in paragraph 16 of his Written Statement on Oath. In the said paragraph, he stated that “when the defendants failed and/or refused to release money to the Hospital for the said surgery, I was discharged by the Medical Director of the Hospital”. It is counsel’s contention that a Letter of authorization to carry out surgery implies an acknowledgment by the defendants to pay after the surgery has been carried out, and is totally different from defendants’ refusal to release money to enable the Hospital carry out the surgery. This is a material contradiction, and we submit that a piece of evidence contradicts another when it is inconsistent, and affirms the opposite of what that other evidence has stated, thus, making the evidence and the witness incredible because the court will not pick and choose which one to believe and which one to disbelieve. See: 1. Adewale vs. Olaifa (2012) 17 NWLR (Pt. 1330) 478 at 520 paras. A-B.

  1. Doma vs. INEC (2012) 13 NWLR (Pt. 1317) 297 at 323 paras A- B.

More so, there is an uncontroverted evidence that decisions taken by the 1st defendant are subject to approval and ratification of the Group (Courdeau Nigeria Limited – 2nd defendant) in its weekly meetings. By this, DW1 is expected to have personal knowledge of the events and transactions in the 1st defendant. Counsel submitted that DW1 is, by his office, in a position to know whether or not there was an accident and that the 2nd defendants who by their nature are bodies corporate must of necessity act through their Directors, Managers and officials, who can also give evidence on their behalf.

See the cases of:

  1. Kate Enterprises Ltd. vs. Daewoo Nigeria Ltd. (1985) 7 SC 1 at 19 – 20.
  2. O.N. Ltd vs. Saleh (1999) 9 NWLR (Pt. 618) 331 @ 347 paras D – E.

Again, counsel submitted that the doctrine of res ipsa loquitur is applicable to actions for injury caused by negligence where no proof of such negligence is required beyond the accident itself, unless the defendant by evidence is able to rebut the possibility or probability.

See: Abi vs. CBN (2012) 3 NWLR (Pt. 1286) @ 32 – 33, paras F – A.

The claimant has not been able to prove by credible and preponderant evidence that there was an accident on 5/6/01. Also, the author of Exhibit “CA 3”, is not the Duty Manager or any other management staff of the defendants to whom reports of accident(s) ought to be made to or should proceed from on behalf of the claimant because he (the Medical Director of St. Francis Hospital) is not a staff of the defendant and was not also present when the alleged accident occurred.

In conclusion, counsel urged the court to hold that no accident capable of causing dislocation and fracture of claimant’s right clavicle occurred on 5/6/01 or any other date as same was never reported to the defendants and as such the

defendants are not in breach of any duty of care.

While adumbrating, counsel for the defendants relied on the authority of Onwujuba vs. Obienu (1991) 4 NWLR Pt. 183 at Pg 16 to negate the submission of the Claimant’s counsel in respect of Section 167(d) of the Evidence Act. He then urged the court to dismiss the Claimant’s suit with punitive cost.

Having considered the submissions of counsels to the parties in their final written addresses, let me now examine the merits of the claimant’s claims. The claimant testified for himself as the only witness. In his evidence, the claimant, who said he is unemployed at present, stated that he was employed by the 1st defendant vide Exhibit CA1 dated 2nd January 1998 as a supervisor (coffee shop). The 2nd defendant is the company who manages and constitutes the board of the 1st defendant. The claimant testified that during his employment he was transferred to various sections in the 1st defendant. He was serving in the banquet section of the food and beverages department on 5th June 2001 and while he was pushing a trolley containing serving plates and other items, one of the stands of the trolley suddenly fell off, the trolley collapsed and the claimant fell down on top of the trolley. He sustained fracture and dislocation on his right hand from the incidence. He was first taken to the 1st defendant’s medical centre within the 1st defendant’s premises and later referred to Ebony Hospital and further to St. Francis Hospital. The diagnosis in all these hospitals was that he had a dislocation and fracture of his right hand. The claimant stated further that he was booked for surgery at St. Francis Hospital but when the defendants refused to release money for the surgery, he was discharged. He said he could not finance the surgery on his own because of the meagre salary of N5,134.48 per month he receives as staff on grade level 02. When he was to resume work, he first reported to the Medical Director of St. Francis Hospital who took another look at his injury and came to the conclusion that the claimant had suffered permanent disability to his right hand as a result of the accident and he will not be able to do any strenuous work with the hand. The doctor then wrote a letter dated 25th July 2001, that is Exhibit CA3, to the 1st defendant’s Human Resource Manager for the need to transfer the claimant to a department where less physical exertion is required. Instead of heeding the doctor’s advice, the defendants, on 3rd April 2002, transferred him to the general cleaning section where the task is even more rigorous. The claimant said he protested the transfer in a letter now in evidence as Exhibit CA5 dated 4th April 2002. But on the 10th April 20102, he was served a query, Exhibit CA6, by the defendants for failing to report at the section he was transferred to. This query caused him to brief his solicitors who wrote Exhibits CA7 and CA8, dated 29th April 2002 and 7th August 2002 respectively, to the defendants to complain about the unfair treatment of the claimant and to demand for compensation. The claimant said the defendants did not respond to the 2 letters from the claimant’s solicitors but instead terminated the claimant’s employment in September 2002. The claimant testified further that the defendants were insensitive to the injury he sustained while on duty in the defendants service, even though the injury was promptly reported to the defendants. The defendants also failed to pay for the surgery that would have prevented the permanent damage to his hand. According to the claimant, the defendants’ action is contrary to Rule 6 and 11 of the 1st defendant’s condition of service for Junior Staff. The claimant also testified that he can no longer use his right hand for anything serious and he could not secure another employment for now because of the disability. He said he has dependants and by the Workmen’s Compensation Act, he is entitled to compensation. He also wants the defendants to pay him N9,000,000.00 general damages and N1,000,000.00 as special damages for the injury and incapacitation.

The defendants called one witness too. DW1 said he is the Assistant General Manager of the 2nd defendant but he was formerly the Assistant General Manager of the 1st defendant when the claimant was employed in 1997. He said the claimant was initially employed as a contract staff of the 1st defendant in June 1997 and later offered a permanent appointment on 2nd January 1998. DW1 testified that while the claimant was a staff of the defendants, the claimant was a disloyal and negligent employee who had received various queries, warnings, surcharges and suspension. DW1 said it is the policy of the defendants to transfer staff to other departments and as a result of the claimant’s several acts of negligence and misconduct, he was transferred to other departments. DW1 also stated that the defendants have a medical clinic in the 1st defendant’s premises, with doctors and nurses, for the treatment of the defendants’ employees. The medical arrangement of the defendants for the staff also includes retainerships with St. Francis Hospital and Ebony Hospital for the treatment of the employees. The claimant is aware of the retainerships as he had been referred to St. Francis in 1997 when he suffered from appendicitis and he was operated on by St. Francis without waiting for any instruction from the defendants which treatment was also paid for by the defendants. DW1 stressed that the defendants have always taken adequate medical care of their employees including the claimant at either the clinic or any of the retained hospitals. DW1 said that the incidence of 5th June 2001 was not reported to the defendants contrary to the defendants’ policy. More so, there was no time St. Francis hospital wrote to the defendants to demand payment for surgical operation of the claimant’s right hand. The claimant too did not inform the defendants about any intended operation on him. As such, the defendants did not refuse to pay for the claimant’s medical treatment or surgery. DW1 stated that in any case, St. Francis hospital has never informed the defendants that the claimant has suffered permanent disability and the claimant himself did not submit any x-ray or medical report to the defendants to substantiate his allegation of permanent disability. The letter from St. Francis hospital is not a medical report and it is nowhere indicated therein that the claimant has became permanently incapacitated. DW1 stated further that the defendants did take to the advice in the letter from St. Francis and transferred the claimant to banquet hall decoration section and his duties were light. The claimant worked in that section for 9 months from July 2001 to April 2002 before he made the application dated 14/2/2002 to be transferred to the pool side bar but the defendants rather transferred him to the cleaning section. The claimant protested the transfer in his letter dated 4/4/2002. Because of the claimant’s protest, the claimant was further moved to the laundry department and then to the security department but he refused both transfers. The claimant threatened that unless he was transferred to the section of his choice, the defendants shall hear from his lawyers. Since then, he stayed at home and absented himself from work. As a result of his absence from work, the claimant was given a query dated 10/4/2002. Instead of responding to the query, the claimant instituted a suit against the defendants. Following an advice from their solicitors, the defendants terminated the claimant’s employment on 10th September 2002 vide Exhibit DA27 and paid the claimant his entitlements. DW1 stated that the claimant is physically fit and his right hand is not disabled. As such, the claimant is not entitled to his claims.

From the evidence adduced by the parties, it is not in dispute that the claimant was an employee of the defendants and his employment had been terminated since September 2002. The defendant’s pleading that the claimant has been paid his entitlements when he was terminated has not been challenged by the claimant. It is also observed that the claimant has not made any case for his severance entitlements in this suit. Therefore, the issue in this suit is restricted to the injury the claimant allegedly sustained while the employment was subsisting. The claimant sought alternative claims in this suit. In the first, he claimed in general and special damages for injury he sustained in the course of his employment with the defendant while in the alternative, he sought the sum equal to his salary for 54 months pursuant to the workmen’s compensation Act. From these reliefs and the evidence in-chief of the claimant, it is observed that the claimant claims under the tort of personal injury and under the Workmen’s Compensation Act. Since the reliefs were sought in alternatives, I shall examine them separately to see if the claimant is entitled to any of the claims.

The claimant claims the sum of N9,000,000.00 as general damages and the sum of N1,000,000.00 as special damages for injury he sustained in the course of his work with the defendants which incapacitated his right hand. This is a claim in personal injury. Where there exists a service relationship between an employer and an employee, the employer is under duty to take reasonable care for the safety of the employee. The level of this duty is the same as that of the employer’s common law duty of care in the law of negligence. The burden of proof in an action for damages in personal injury rests primarily on the claimant who must show that he was injured by a negligent act or omission of the defendant. Once a claimant has successfully shown that he suffered personal injury as a result of a breach of a duty of care owed him by the defendant, he will be entitled to both general and special damages. See IGHOSEWE vs. DELTA STEEL COMPANY LTD 2008 All FWLR Pt. 410 741 at 757. The question at this point is “whether the claimant has made out a case to entitle him to award of both general and special damages.’(back to top?)

General damages is implied by law and it flows from the wrongful act of another. A person injured by another’s wrong is entitled to general damages as compensation for non-pecuniary loss such as pain, suffering and loss of amenity and enjoyment of life suffered by the injured party. To be entitled to general damages in personal injury cases, the claimant must show that he sustained an injury or damage and it resulted from the negligent act or wrong of the defendant. See IYERE vs. BENDEL FEED AND FLOUR MILL LTD (2009) All FWLR (Pt. 453) 1217 at 1244. Therefore, the focus in a claim in personal injury is the negligent act and the resultant damage. Damage alone does not give a cause of action, so also, negligence alone does not give a cause of action. The two must co-exist to found an action in personal injury and they must be proved by the claimant.(back to top?)

In his evidence, the claimant stated that while he was serving in the banquet section of the food and beverages department of the 1st defendant on 5th June 2001, one of the legs of the trolley he was pushing suddenly fell off and the trolley collapsed. The claimant fell down on top of the trolley and he sustained fracture and dislocation on his right hand from the fall. He was taken to some hospitals and the diagnosis in all the hospitals was that he had a dislocation and

fracture of his right hand. It is the claimant’s further evidence that when he was to resume work, he first reported to the Medical Director of St. Francis Hospital who took another look at his injury and came to the conclusion that the claimant had suffered permanent disability to his right hand as a result of the accident and he will not be able to do any strenuous work with the hand. The doctor then wrote Exhibit CA3 to the 1st defendant’s Human Resource Manager for the need to transfer the claimant to a department where less physical exertion is required. In sum, the claimant’s case is that he sustained injury on 5th June 2001 while carrying out his duties in the defendants’ employment. In paragraph 6 and 8 of the Statement of Defence, the defendants pleaded that the claimant did not suffer any accident on 5th June 2001 because he did not report any accident or injury he sustained while on duty to the defendants on that day. DW1 also testified along this line. The dispute, as a see it from the defendants denial, is whether the claimant sustained the injury while carrying out his duty in the defendant’s employment on 5th June 2001 and whether the defendants were aware of the claimant’s injury.

In paragraph 25 of his statement of facts, the claimant pleaded that “the defendants had earliest knowledge of his accident”. In his deposition, the claimant testified in paragraph 28 thereof that “my accident while on duty was promptly reported to the defendants”. In his further evidence given orally in court, the claimant said he was first taken to the defendants’ clinic from where the doctor referred him to Ebony Hospital. He also said he was conveyed in the defendants’ vehicle and the duty manager accompanied him. This evidence is proof of his pleading in paragraph 11 of the statement of facts that he was “taken” to the medical centre within the 1st defendant’s premises. When he was cross examined by the defendants’ counsel, the claimant said the incidence was reported to the defendants through the clinic. He himself went to the office the following morning to report to the Human Resources Manager and to ask for authority letter to take to Ebony but the manager refused. Although the defendants expressed doubt about the claimant’s alleged accident and the injury in paragraph 6 (ii) and (iii) of their defence, however, further facts pleaded by them and evidence given by DW1 all have elements showing that the defendants were aware of the claimant’s accident and injury at the time. The defendants pleaded in paragraph 7 of the statement of defence that “the claimant was first taken to the 1st defendant’s medical centre in the Hotel Presidential premises for treatment and the resident doctor later transferred him to Ebony Hospital…” Also, in paragraph 9 (iii), the defendants averred that it was the claimant who voluntarily left St. Francis Hospital because he said he preferred native treatment of the hand instead of the surgery proposed by the hospital. And in paragraph 16 (vii), the defendants averred that “the 1st defendant had made all the required arrangement and payment for the treatment of the claimant and indeed paid all the necessary medical fees for the claimant’s treatment in respect of the said accident dated 5th June 2001”. Even more is the admission by the defendants that they received Exhibit CA3 from the medical director of St. Francis hospital. The defendants have said the said hospital is on their retainership and also that the claimant was referred there in respect of the injury. The defendants were informed in the exhibit that the claimant sustained dislocation and fracture from a fall he had at work on 5th June 2001. The exhibit was written on 25th July 2001 and the claimant said it was written when he was about to resume work. Now, between 5th June 2001 and 25th July 2001 is a period of 50 days. The defendants have not complained that they were unaware of the claimant’s absence from work within the period and when he returned, the defendants have not said any disciplinary action was taken against him for absenting himself from work in those days. Even then, the defendants’ averment in paragraph 10 (1) of the statement of defence is an admission of the fact that the defendants were aware that the claimant was away from work to treat an injured hand. All these facts put together is evidence that the defendants were aware that the claimant sustained injury while at work.

From a careful examination of the defendants case, it appears to me the defendants contention is more that they were not aware of accident because the claimant did not immediately report the accident and not that the claimant did not have an accident or injured in his right hand. In my view, once it is shown that the defendants were aware that the claimant sustained injury in the course of his employment, the fact that the claimant did not report it immediately to the defendants does not matter. The crucial point in personal injury cases is the fact of the injury in the course of the employment. The claimant has adequately established this fact. From all the foregoing, it is my view that the claimant has shown that he sustained injury while carrying out his duties in the defendants’ employment.

The next issue is whether the claimant has shown that the injury resulted from the negligent act or omission of the defendants. In an action for personal injury, the burden of proof falls upon the claimant alleging it. The claimant has the onus to give the particulars of the negligence and lead evidence to establish it. In his narration of how the accident happened, this was all that the claimant said in his deposition-

“11. That on the 5th day of June 2001 while I was on duty and while I was pushing trolley which contained service plates and other things, one of the stands of the trolley gave way suddenly and collapsed and I fell down heavily on top of the trolly and its content.

  1. The above incident resulted in the dislocation and fracture of my right hand clavicle.
  2. I was taken to the 1st defendant’s medical centre within the premises …”

There is nothing in the claimant’s evidence or in his pleading showing that the defendants have anything to do with the accident. I cannot find anywhere in the claimant’s case where it is said that the accident resulted from the negligent act of the defendants or that the defendants omitted to do something which resulted to the accident. In fact, the claimant stated under cross examination that that he loaded the items on the trolley himself on that day and he moved the trolley after ascertaining that it was in good shape. He also said his examination showed that the trolley was not faulty before he moved it. The claimant did not attribute any fault on the defendant in respect of the accident. In paragraph 6 (v) of the statement of defence, the defendant asserted that the trolleys used in the 1st defendant are strongly built with stainless steel legs and handles and that there has never been an incident of the nature of the claimant’s allegation with the 1st defendant’s trolley. Since the claimant did not file a reply to the statement of defence, these facts were not traversed by the claimant. The facts are therefore taken as true. If the state of the defendants’ trolley is as stated by the defendants, then the claimant must show that the accident happened because of the negligence of the defendants. The failure of the claimant to impute negligence on the part of the defendants go to show that what happened was no more than an “accident”, which is an unintended and unforeseen injurious occurrence.

Upon a further examination of the claimant’s case, it appears that his claim for general damages was borne out of his allegation that the defendants failed to give him proper medical attention at the right time. He pleaded Rule 11 of Exhibit CA9 and alleged that the defendants breached that rule. In his evidence, the claimant stated that the defendants were insensitive to his condition which was brought about by the accident and they also refused to pay for the surgery which refusal resulted into the permanent damage of his hand. The claimant said further that he can no longer use his right hand and that he has not been able to secure another job by reason of the disability. The said rule 11 of Exhibit CA9 the defendants are alleged to have breached in respect of the claimant’s injury provides as follows:

“(a). The hotel provides facilities for medical treatment for all employees, and any injury however trivial must be reported immediately to the head of department

(b). The hotel maintains an industrial clinic for the treatment of minor accidents to staff in all units whilst in duty

(c). The hotel will offer full medical service to staff of the hotel except for the following cases: provision of spectacles, dentures, maternity treatment, supply of limb equipments, venereal disease (d). the hotel clinic can be used by staff and members of their family…”

These provisions of the condition of service require the 1st defendant to provide facilities for medical treatment of the employees, maintain a clinic for the treatment of its employees and to give full medical service to its employees. Is there evidence that the defendants did not comply with this condition of service with respect to the injury sustained by the claimant? The evidence adduced by the claimant contains the fact that the 1st defendant maintains a medical clinic within its premises to which the claimant was first taken when he had the accident. He stated under cross examination that he and his nuclear family have received treatment in the defendants’ clinic. In his deposition, the claimant testified that it was the defendants’ clinic that referred him to Ebony Hospital and then to St. Francis Hospital. He said in cross examination that St. Francis Hospital is one of the hospitals under the retainership of the defendants and that he had previously been treated in St. Francis at the instance of the defendants. These evidence from the claimant is not different from what DW1 has said. DW1’s testimony contain that there is a medical clinic established by the 1st defendant for the treatment of the employees and the services of Ebony Hospital and St. Francis Hospital were also retained by the defendant for the welfare and treatment of the staff of the defendants. Therefore, the facts are agreed that the defendants have made provisions and facilities for medical treatment of their employees.

The contention remains whether the defendants refused to avail the claimant full medical service when he was injured? The claimant’s case is that when he was on admission in St. Francis Hospital, he was to undergo a surgery but the defendant refused to release money to the hospital for the surgery. Because he couldn’t afford the surgery, he was discharged from the hospital and he went instead to employ tradition remedy. The defendants have denied the claimant’s allegation that they refused to release money for the surgery. DW1 stated in his evidence that the defendants

did not refuse to pay for the claimant’s medical treatment or surgery. He stated further that the defendants paid for the claimant’s treatments in respect of the injury but they were not aware of any intended surgery to be performed on the claimant and no money was ever demanded from them for any such surgery. DW1 also testified that there was no time St. Francis Hospital wrote to demand payment for surgical operation to be carried out on the claimant’s right hand and the defendants refused to pay. DW1 explained that the arrangement with St. Francis hospital is that the hospital treats all the defendants’ employees and the defendants pay the bills on annual basis. An example was given of the claimant’s surgery for appendicitis in 1998 at St. Francis and the defendants paid the bills later. The claimant did not disprove these facts. The claimant’s averment in paragraph 13 of his statement of facts and his evidence on the averment is that it was the Medical Director of St. Francis Hospital who informed him that the defendants refused to pay for the surgery. Now, no evidence was adduced to the effect that St. Francis requested for payment from the defendants. The said Medical Director of St. Francis Hospital was not called to testify in this matter. The claimant’s evidence on what he was told by the Medical Director is at best, hearsay and cannot be relied on. On the other hand, I am inclined to believe the defendants on the arrangement they have with St. Francis Hospital where St. Francis do not demand for money before treating staff of the defendants. The claimant did agree there is such an arrangement and he had been a beneficiary of that arrangement where the defendants paid for the surgery afterwards. With the existence of such arrangement, the claimant’s claim that he could not have the surgery because the defendants refused to pay for it cannot be believed.

I find facts in this case which show that the defendants have the facilities and also made adequate arrangement for medical treatment of the employees. DW1 has also said it was the defendants that paid for the claimants treatments for the injury. I do not see any merit in the claimant’s allegation that the defendants breached the condition of service. I find that the claimant has not proved that it was the negligence of the defendants that resulted to the injury nor did he establish his allegation that the defendants failed to pay for surgery. I cannot find the defendants liable for the accident nor can I attribute any wrongdoing to the defendants in respect of the claimant’s allegation that they refused to pay for the surgery. Consequently, the claimant’s claim for general damages against the defendants fails.

Special damages, as claimed by the claimant, are those pecuniary losses actually suffered by the claimant. They can generally be subject of exact calculation. In personal injury cases, items under special damages may include various expenses and loss of earnings. The law requires such damages to be specifically pleaded and strictly proved. In other words, items constituting the claim for special damages must be particularised in the pleading and proved by cogent evidence. See IYERE vs. BENDEL FEED AND FLOUR MILL LTD (SUPRA) at 1251; OZIGBU ENGR. CO. LTD vs. IWUAMADI (2011) All FWLR (Pt. 553) 1975 at 2000. In effect, evidence must be produced for easy ascertainment, qualification and calculation of the sum claimed as special damages. The claimant merely sought the sum of N1,000,000.00 as special damages without pleading the items constituting the claim. Special damage was not pleaded nor is there any evidence to substantiate the claim for special damages. Without much ado on this claim, the claimant did not meet the requirement of the law on claims in special damages. I also find the claim for special damages unmeritorious.(back to top?)

Damages of whatever kind are a result of liability. Where a claimant fails to establish the liability of the defendant, such claimant will not be entitled to award of damages. In this case, the claimant has failed to prove that the defendants were liable for the injury he sustained while carrying out his employment. Therefore, this court finds that the claimant is not entitled to his claims for general and special damages.

I shall now consider the alternative claim sought by the claimant under the Workmen’s Compensation Act. In paragraph 26 of his statement of facts, the claimant pleaded that he is entitled to compensation under the Workmen’s Compensation Act. He also gave evidence to that effect. The claim he sought under the Act is the sum equal to his salary for 54 months.

The Workmen’s Compensation Act 2004 made provisions for the payment of compensation to workmen for injuries suffered in the course of their employment. Claims brought under the Act are more like strict liability claims. Unlike claims brought under the tort of personal injury where the claimant must prove negligence on the part of the employer to succeed, under the Act, all that is necessary to be shown for the employer to be liable to pay compensation is that the claimant was an employee and the injury was sustained in the course of the employment.(back to top?) Section 3 (1) of the Act provides that if in an employment personal injury by accident arising out of and in the course of the employment is

caused to a workman, his employer shall be liable to pay compensation. Therefore, where a claimant fails in his claim under common law of tort, he may succeed under the Act. The framers of the Act took cognisance of this fact when they included the provision of section 25 of the Act to the effect that-

(1) Where the injury was caused by the personal negligence or wilful act of the employer or of some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a civil court independently of this Act,


(2) If in any proceedings independently of this Act, an action is brought to recover damages for injury caused by an accident, and it is determined in such action or on appeal that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under this Act, the action shall be dismissed; but-

(a) The court in which the action is tried; or

(b) if the determination is the determination on an appeal by either party by an appellate tribunal, that tribunal, may assess the amount of compensation so payable but may deduct from such compensation all or part of the costs, which, in its judgement, have been caused by the plaintiff bringing the action instead of proceeding under this Act.” Therefore, by this provision, even if the claimant has not sought any relief under the Act, this court is empowered to go ahead to consider whether he is entitled to compensation under the Act after his claim for damages in personal injury have failed. The Act has however laid down a condition precedent before proceedings for the recovery of compensation under the Act can be brought. Section 13 (1) of the Act provides-

“Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless-

(a) Notice of the accident has been given by or on behalf of the workman as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured; and

(b) The application for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury or, in the case of death, within six months from the time of death.

The import of the provisions of subsection (1) of the section is that no proceeding for compensation under the Act can be instituted unless the employee has first given notice of the accident as soon as practicable after the happening of the accident to the employer and the employee must have, within six months from the occurrence of the accident, made an application for compensation. These conditions are disjunctive and each of them must be satisfied or performed before action for compensation can be instituted. Exceptions have however been created in subsections (2) and (3) of the section to the application of subsection (1). The subsections provide-

“(2) The want of, or any defect or inaccuracy in, any notice given under subsection (1) of this section, shall not be a bar to the maintenance of such proceedings if the employer is proved to have had knowledge of the accident from any other source at or about the time of the accident, or if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake or other reasonable cause.

(3) The failure to make an application within the period specified in subsection (1) of this section shall not be a bar to the maintenance of such proceedings if it is found that the failure was occasioned by mistake or other reasonable cause.” The gist of the exceptions created in the above provisions are these: with respect to the requirement of notice of the accident, failure of the employee to give notice to the employee will not bar his right to commence proceedings if it is shown that the employer had notice of the accident from any other source. With respect to the requirement for application, if the employee can show that the failure to make application was caused by mistake or any other reasonable cause, proceeding under the Act will not be barred. The question to consider at this juncture is whether the claimant has met the statutory conditions precedent before bringing a claim under the Act.

Although the claimant said his accident was reported to the defendants, the mode of report or notice was not proved. One of my findings earlier in this judgment is that the defendants were aware of the claimant’s accident and the resultant injury. This satisfies the exception created in subsection 2 with respect to notice of accident. The defendants have been shown, even by their own evidence, to have had knowledge of the accident. The second condition is that of application. The Act requires the claimant to have made application for compensation with respect to the accident within six months from the occurrence of the accident causing the injury before his action for compensation under the Act can be maintained. It is the claimant’s evidence that the accident which caused the injury occurred on 5th June 2001. Since the accident, the only time the claimant made application for compensation is when his solicitors wrote Exhibits CA7 and CA8, dated 29th April 2002 and 7th August 2002 respectively, to the defendants. The period between the date of accident, being 5th June 2001, and the first demand letter, being 29th April 2002, is 10 months. Clearly, the claimant did not make application for compensation within 6 months of the occurrence of the accident. I have also examined the claimant’s pleadings and evidence to see if any explanation was given for the failure to make the application within the statutory 6 months. I found none. In any case, the claimant knew, at the time of his admission in St. Francis Hospital few days of the accident, that he had a dislocated and fractured hand. He said while he was still on admission at St. Francis, he was told that the defendants refused to pay for the surgery. From his evidence, the claimant said he knew, as the date of Exhibit CA3, that is 25th July 2001, that he has suffered a permanent disability to his right hand as a result of the accident. Notwithstanding this knowledge, the claimant did not make any application for compensation at the time. The claimant resumed work and was carrying out his duties until he was issued a query on 10th April 2002 for not reporting to duty. It was this query that woke him up to his right to demand for compensation for the injury he sustained since 10 months back. From the facts, the claimant had ample time and opportunity to apply for compensation. I cannot find any act of mistake or any other reasonable cause to excuse the claimant’s failure to apply for compensation within 6 months of the injury.

It is trite that where a statute prescribes a condition precedent for institution of suit, non compliance with the conditions renders the suit incompetent and it also affects the jurisdiction of the court to entertain the action. It is trite that a court is competent to entertain a suit when, among others, the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. See MADUKOLU vs. NKEMDILIM (1962) 3 SCNLR 34; DREXEL ENERGY AND NATURAL RESOURCES LTD vs. TRANS INTERNATIONAL BANK LTD (2008) 12 S.C. (Pt. II) 240. Furthermore, failure to comply with the statutory requirement prescribed by the relevant statute under which a claim is brought will deprive the court of jurisdiction to adjudicate on the claim. See AUTO IMPORT EXPORT vs. ADEBAYO (2003) FWLR (Pt. 140) 1686. In this instant case, I find that one of the condition precedents to confer this court with jurisdiction to entertain the claimant’s claim under the Workmen’s Compensation Act has not been fulfilled or observed. Consequently, the claim sought by the claimant under the Workmen’s Compensation Act is incompetent and it should be dismissed.(back to top?)

In the final result, this suit fails completely. It is hereby dismissed.

Parties are to bear their costs.

Judgment is delivered accordingly.

Hon. Justice O. Y. Anuwe

Judge