IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: THURSDAY 16TH MAY 2019
IBETO CEMENT COMPANY LTD.……………………..DEFENDANT
2. P.C. DIKE FOR THE DEFENDANT.
This suit was commenced by way of an unsigned complaint dated 30th April 2015 and filed the same day. An undated Statement of Facts accompanied the complaint. By paragraph 13 of the Statement of Facts, the claimant prayed the Court for the following reliefs:
I. The one months’ [sic] salary in lieu of the one month’s due the Claimant as stated in his current pay slip as at 2014, which is N73, 809.96 (seventy three thousand, eight hundred and nine naira, ninety six kobo) per month.
II. All the salaries due the Claimant from the date of the unlawful termination of his employment by the Defendant till date.
III. The sum of N20,000,000.00 (twenty million naira) only as general damages for the pains, trauma, incapacitation, terminal benefits, compensation of our Clamant [sic] as a result of the damage suffered by him in the course of his employment in the Defendant.
IV. And any other order the Court may deem fit to make in the circumstances.
Against the aboveStatement of Facts, the defendant filed a Statement of Defence on 28th September 2015. There was no Reply pleading filed. The case came up first before Hon. Justice Anuwe on 23rd June 2015. It was adjourned on this date to 15th July 2015 for hearing. It was further adjourned to 25th September 2015 for hearing. The Court did not sit on this date and it was adjourned off record to 12th October 2015 for hearing. On 12th October 2015 the Court regularised the defence processes filed out of time and the case adjourned to 8th December 2015 for hearing. The Court did not sit on this date and the matter was therefore adjourned to 15thFebruary 2016 for hearing. The case was opened on this date with the claimant testifying as CW1. Cross-examination of CW1 was started on this date and continued on 15th March 2016 and adjourned for continuation of hearing thereafter. This was the position until 3rd November 2016 when the new counsel to the defendant notified the Court of change of counsel and asked for date to regularise his position. Thereafter, the matter was adjourned to 14th December 2016 for defence.
On the 14th December 2016, the new defence counsel brought a motion challenging the jurisdiction of the Court.The Court dismissed it and the case adjourned to 9th January 2017 for defence. By 9th January 2017 the defence counsel had filed a Notice of Appeal and a Motion for Stay of Execution. The Motion for Stay was adjourned to 31st January 2017 for hearing. On this date, the Court granted adjournment to the claimant’s counsel to file counter affidavit to the Motion for Stay and the matter adjourned to 7th February 2017 for the Motion for Stay. The Motion was moved on 7th February 2017 and adjourned to 8th February 2017 for ruling. It was accordingly dismissed on the said 8th February 2017 and the matter adjourned to 9th March 2017 for defence. On the next date, the Court was informed of the parties’ desire to settle out of Court and the fact that the appeal filed in respect of the case had been entered.
On this basis and on the agreement of counsel to the parties, the Court referred the case to the ADR Centre of the Court for amicable resolution and adjourned sine die. On 30th June 2017 the case came up with the report that amicable resolution had failed but that the appeal had been entered. The Court adjourned the case again,sine dieagain till the determination of the appeal. This was the state of things till the matter came up before me for the first time on 5th December 2017, Hon. Justice Anuwe, having been transferred. The matter was adjourned to 6th February 2018 for mention. On this date, it was adjourned to 27th February 2018 for hearing. The matter was opened on this date. That is all for the introductory part of the case.
But, before I move to the trial and adoption proceedings, let me quickly summarise the cases made out in the pleadings of the parties.
CASES MADE IN THE PLEADINGS OF THE PARTIES
The claimant pleaded that he was a staff of the defendant and that, on 02/10/2012 he was injured on his fifth digit at the right hand while discharging his duties and that, it was permanently damaged. He pleaded that the defendant failed to do anything about the injury despite their awareness, and that instead, the defendant made him to continue to work with the injured finger, leading to its deterioration. The claimant said the defendant orally terminated his employment in reaction to his constant pleas for medical attention, without paying his terminal benefits, medical expenses, one-month salary in lieu of notice, etc. The claimant pleaded that, as a result of the unilateral termination, he had suffered untold hardship and penury. The claimant pleaded that, this suit was therefore filed to claim the reliefs earlier reproduced above.
The defence pleaded that the claimant deliberately got himself injured by refusing to wear the hand gloves and other protective equipment given to him by the defendant. The defendant pleaded further that, when it realised that the treatment at the defendant’s clinic was not effective, it referred the claimant to the defendant’s retained clinic in Port Harcourt and he was admitted for a month and that, he was discharged when the finger began to heal. The defendant pleaded that it shouldered the bills. The defendant denied ever asking the claimant to work with the injured finger and that, it instead granted the claimant several clinical off-days to enable him follow up in the treatment, after he was discharged from the hospital. The defendant pleaded that, the claimant was never terminated as claimed but that, rather, the claimant demanded orally to be excused from duty to attend classes because, he had been admitted to the Rivers State Polytechnic. The defendant pleaded that the directive that the claimant apply in writing was never heeded and that, the claimant’s employment was terminated because, he absconded from his duty post for 12 days without approval and that, when a query was prepared for him, he could not be located for service of same. The defendant pleaded that any hardship suffered by the claimant was self-inflicted. The defendant pleaded too, that the claimant was not entitled to any salary in lieu of notice, as notice of disengagement was not necessary in his case because, he absconded. The defendant finally pleaded that the suit be dismissed with cost.
No Reply to the Statement of Defence was filed. I shall therefore proceed to summarise the trial and adoption proceedings.
Trial and Adoption Proceedings
Trial commenced de novo before me on 27th February 2018 with the claimant testifying as CW1. CW1 took oath on the Holy Bible and adopted his written deposition. On this date, the CW1 tendered two documents without objection and they were marked accordingly as Exhibits C1 and C2. The case was thereafter adjourned to 6th March 2018 for the learned counsel to the claimant to regularise his position. The case could not go on 6th March 2018, as the defence counsel asked for date to react to the application filed by the claimant. The case was, as a result, adjourned to 18th and 23rd April 2018 for motion and continuation of trial. On this date, the matter came up as adjourned and I observed that the said motion was not in the file. As a result, the case was adjourned to the outstanding 23rd April 2018 for the motion and continuation of trial. On this date, the learned counsel to the claimant, in the absence of the learned counsel to the defendant, withdrew the said motion and it was accordingly struck out and the case adjourned thereafter to 15th and 30th May 2018 for continuation of trial.
The matter came up as adjourned on the 15th May 2018 and CW1 was cross-examined without re-examination and the case of the claimant closed. The case was thereafter adjourned to 13th June 2018 and 10th July 2018 for defence and cross-examination. On 13th June 2018, when the matter came up for defence, the defence counsel asked for leave to call additional witness and this application was granted unopposed. Thereafter, the learned counsel for the defendant applied for adjournment on the ground that his witness was out of the country and that, he did know on time. This application was not opposed and it was granted, and the case adjourned to 10th July 2018 for defence. On this date, the defence counsel wrote for adjournment on ground of ill-health and the adjournment was granted unopposed and the case adjourned to 24th September 2018 for defence.
The matter however came up on 8th November 2018 due to my transfer out of Owerri Division and the time it took to secure fiat to complete my part-heart matters. On this date, the defence opened with DW1 who swore on the Holy Bible and adopted his written deposition. DW1 tendered the first document without opposition and it was admitted as Exhibit DA. The second was opposed and the objection overruled and the document admitted as Exhibit DB. Exhibits DC and DD were admitted without objection and; the testimony-in-chief of DW1 was closed at this stage, and his cross-examination commenced in earnest; and was completed the same day without re-examination. The case was adjourned to 29th and 30th November 2018 for continuation of defence and cross-examination.
The matter came up on 29th November 2018 as adjourned and on this date, the learned counsel to the defendant moved the application to call additional witness and, it was granted unopposed. Thereafter, DW2 opened his evidence-in-chief by affirmation and adopted his written deposition. Thereafter, his cross-examination commenced and was closed the same day. The attempt to re-examine was objected and the objection was upheld. The defence was thereafter closed and the case adjourned to 7th February 2019 for adoption of the final written addresses of counsel to the parties. The Court did not sit on this date. It sat instead on 1st March 2019 and the adoption of final written addresses was done.
On this date, the learned counsel to the defendant:E.E. BASSEYmoved the application for extension of time to file the defendant’s final written address out of time and it was granted unopposed. Thereafter,the learned counsel to the defendant: E.E. BASSEY adopted the final written address of the defence and the Reply on Points of Law. Thereafter, the learned counsel to the claimant: J.C. ASAWABELEM, adopted the final written address of the claimant. In adumbration, the learned counsel to the claimant urged the Court to discountenance the objection that the claimant did not comply with the conditions precedent set out in section 55(4) of the Employees Compensation Act [ECA]. The learned counsel argued that, the main claim before the Court was termination of appointment and that, compensation was just ancillary, and as such, the claims were properly before the Court. The learned counsel submitted further that, section 55(4) of the ECA did not even preclude the claimant from bringing actions in torts against the defendant and that, the defendant had acknowledged that, it was negligent through Exhibit DA.
Thus, ended the adumbration, and the case adjourned to 29th March 2019 for judgment. As the judgment was not ready on this date, it was adjourned sine die till date would be communicated of its readiness to the learned counsel to the parties within the ninety days constitutional grace, which expires 1st June 2019.
Having carefully summarised the proceedings of the Court to this point, the next thing is to summarise the final written addresses of the parties. And to this I proceed.
SUMMARIES OF THE FINAL WRITTEN ADDRESSES
A. Defendant’s Final Written Address
EKERE E. BASEY franked the defendant’s final written address. The learned counsel started the final written address by raising a Preliminary Objection [PO] against the jurisdiction of the Court, to wit: “Whether this Court can hear the Claim of the Claimant for Compensation in its Original Jurisdiction?” The learned counsel argued that, by virtue of section 2, the ECA applies to both public and private sectors, and by virtue of section 6, an application for compensation must be made on the prescribed form of the Board created by the ECA within one year of the occurrence of an injury, except as otherwise provided by subsection 3 thereof, when, under special circumstances, such could be competently made within 3 years. The learned counsel submitted that, by virtue of section 55 of the ECA, it is only after the Board had made a decision on the application of the injured person that s/he could approach this Court, if unsatisfied. The learned counsel submitted that, the claimant’s failure to follow this condition precedent takes the vires from the Court to adjudicate this matter at first instance. The learned counsel cited an undecided decision of this Court in Suit No. NICN/EN/32/2012 – Jonas Maduka v. Earth Moving International Limited & Anor without giving the date the late Hon. Justice Auwal delivered it. The learned counsel argued that, because the word “shall” was employed in couching sections 2 and 6 of the ECA, compulsion is mandated. The learned counsel cited National Assembly v. C.C.I. Co. Ltd (2008) 5 NWLR (Pt. 1081) 519 at 540, D-G and Tanko v. Caleb (1999) 8 NWLR (Pt. 616) 606 and other cases.
The learned counsel argued further that,in the administration of justice, it is important that legal proceedings are conducted in accordance with the due process of law and laid down procedures. On this, the learned counsel citedNganjiwa v. FRN (2017) LPELR-43391 and Okoreaffia v. Agwu (2008) LPELR-4724 (CA). The learned counsel also cited Madukolu v. Nkemdilim (1962) 2 SCNLR 341 to the effect that,cases could only be competently commenced by fulfilling the conditions precedent. The learned counsel submitted that, since the claimant herein did not first approach the Board, it follows that this case is premature. The learned counsel cited Eletu-Habeeb & Anor v. AG Federation & Ors (2012) 13 NWLR (Pt. 1318) 423 on this submission. The learned counsel cited UAC Ltd v. Macfoy (1962) A.C 152; Maduloku v. Nkemdilim [supra] and Lafia Local Government v. Governor of Nasarawa State (2012) 17 NWLR (Pt. 1328) 94 SC to anchor the submission that, the since the conditions precedent had not been met, the case is invalid. The learned counsel submitted that, the fact that this action could only be commenced in this Court by notice of appeal in accordance with Order 3, Rule 5(2) of the NICN Rules 2017 signifies that, this Court lacks original jurisdiction in this action. Thus, the learned counsel ended his submissions on the PO, and moved to his submissions on the merits of the substantive suit.
Arguments on the Merits of the Substantive Suit
In arguing on the merits of the substantive suit, the learned counsel to the defendant formulated three issues for the determination of the suit, to wit:
1. Whether the Claimant has adduced sufficient evidence to entitle it to the reliefs sought. [sic]
2. Whether the Court can grant reliefs not claimed. [sic]
3. Whether this Honourable Court has jurisdiction to entertain this Suit, in the absence of a Complaint duly signed by a Legal Practitioner. [sic]
Whether The Claimant Has Adduced Sufficient Evidence To Entitle Him To The Reliefs Sought?
The learned counsel argued under this issue that, where an employee asserted wrongful dismissal, he has the onus to establish this and that the law is that,since he asserted, he must prove the assertion. The learned counsel cited Ajuzi v. FBN Plc (2016) LPELR-40459 (CA) and Alade v. Alic (Nigeria) Ltd (2010) LPELR-399 (SC) and section 135 of the Evidence Act, and other authorities on this. The learned counsel also cited Morohunfolu v. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506 at 519 as to heads of items that must be specifically pleaded and proved in cases of dismissal. The learned counsel cited Okomu Oil Palm Co. Ltd v. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660 at 673, G-H to the effect that, it is not the duty of the employer to prove any of these facts.The learned counsel argued that, the claimant failed to lead evidence in prove of the terms and conditions of his employment and failed equally to prove in what manner these were breached. On this submission, the learned counsel referred the Court to Nigerian Army Council & Anor v. Erhabor (2018) LPELR-44958 (CA) and Katto v. CBN [supra] and others.Relying on Okomu Oil Palm Co. Ltd [supra] p. 673, G-H, the learned counsel submitted that, the failure of the claimant to tender his terms and conditions of service and to prove in what manner they were breached, is fatal to his case.
The learned counsel argued that, the claimant couldn’t claim nonexistence of the conditions of service because, paragraph 3, p. 2 of his letter of appointment [Exhibit 2) clearly referred to it. The learned counsel also submitted that, the claimant failed to lead evidence to justify his claim to one-month salary in lieu of notice. On this, the learned counsel cited AG Oyo State v. Fairlakes Hotels Ltd (No. 2) (1998) 5 NWLR (Pt. 121). The learned counsel argued that, the claimant just made bogus claims without adducing evidence in justification and that, to discharge the burden of proof in this circumstance, the claimant’s evidence must be consistent and not self-contradictory. The learned counsel urged Mini Lodge & Anor v. Ngeir & Anor (2009) 18 NWLR (Pt. 1173) 254; Uwagboe v. State (2008) 12 NWLR (Pt. 1102) 621 and Gabriel v. the State (1989) NWLR (Pt. 122) 457 on the fact that, two pieces of evidence are contradictory when they are mutually inconsistent. The learned counsel argued that, where contradiction exists, the court cannot choose, but has to reject both pieces of evidence as unreliable. On this, the learned counsel cited Ekweozor & Ors. v. The Registered Trustees of Saviours Apostolic Church of Nigeria (2014) LPELR-23572 (CA); Uwaekweghiya v. State (2005) 9 NWLR (Pt. 930) 227 and others. The learned counsel argued that,there exists contradiction between paragraph 13(i) of the Statement of Facts and Exhibit C1 and submitted that, since a court is not allowed to speculate, it cannot draw inference from contradictory pieces of evidence because, any decision based on speculation is liable to be set aside. On this, the learned counsel cited FCDA & Anor v. MTN & Anor (2016) LPELR-41248 (CA); Overseas Construction Co. (Nig) Ltd v. Creek Enterprise (Nig) Ltd (1985) 3 NWLR (Pt. 13) and others.
The learned counsel submitted that, there is therefore, no evidence before the Court to support the claim for one-month salary in lieu of notice. The learned counsel submitted further that, pleading is not synonymous with evidence and that, where there is lack of evidence to support the plea of one-month salary in lieu of notice, the claim must be adjudged abandoned and struck out. The learned counsel urged on the Court,CameroonAirlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512 and Olaniyan v. Oyewole (2010) LPELR-9109 (CA) on the foregoing submissions. The learned counsel submitted further, that address of counsel is not a substitute for evidence, and cited APGA v. Dantong & Ors (2011) LPELR-9233 (CA) and urged the Court to dismiss the claim to one-month salary in lieu of notice.
The learned counsel argued on the issue of compensation for injury that, assuming this Court comes to the conclusion that it could entertain same, the claimant failed too, to prove his entitlement to the reliefs claimed.The learned counsel argued that, for the claimant to succeed under this head, he must prove negligence on the part of the employer and that the negligence caused or contributed to the injury. The learned counsel cited Bonninhton Castings Ltd v. Wardlaw (1956) AC 613. The learned counsel argued that, where damages are not linked to the defendant, then they go to no issue. The learned counsel cited MTN Communications v. Mundra Ventiures Nigeria Ltd (2016) LPELR-40343 (CA). The learned counsel argued that, proving breach of duty owed the claimant necessarily requires proof of negligence. The learned counsel referred the Court to Olan (Nig) Ltd v. Intercontinental Bank Ltd (2009) LPELR-8275 (CA) and others. The learned counsel submitted that, the claimant failed to prove any of the ingredients necessary to succeed. The learned counsel reproduced paragraphs 4-7 of the written deposition of the claimant to support the argument that, evidence on the necessary ingredients were not adduced. The learned counsel cited MTN Communications v. Mundra Ventures [supra] on the fact that, there was no linkage between the injury suffered by the claimant and the defendant.
The learned counsel submitted that,the pieces of evidence contained in paragraphs 4-7 of the written deposition of the claimant had been shown to be tissues of lies by p. 2 of Exhibit DC. The learned counsel argued that, the claimant just attempted to whip up sentiments and that, sentiments have no place in judicial deliberations and cited Ezeugo v. Ohanyere (1975) 6-7 SC 17, 184 to support this argument. The learned counsel submitted that, once a claimant failed to establish the three ingredients of negligence, his suit is liable to be dismissed.The learned counsel submitted that, in law, the proof of existence of duty of care, its breach and the resultant damages are sine qua non for success on claims in damages.The learned counsel submitted that, it is agreed that any breach of duty of care, whether grave or venial, which caused loss, constitutes negligence and cited Julius Berger (Nig) Ltd v. Ede (2003) 8 NWLR (Pt. 823) 526, 541-542. The learned counsel submitted that, proof of breach of duty of care, which demands proof of negligence, is a kind of special damages and thus, demands strict proof by particularized pleadings and that, a blanket allegation of negligence without particularization in the pleadings, is not sufficient. The learned counsel cited Flash Fixed Odds Ltd v. Akatuga (2001) 9 NWLR (Pt. 717)46 at 61 and submitted that, the claimant’s claims for damages without particularization must be dismissed.
The learned counsel argued further that, the claimant’s claim for terminal benefits is bereft of locus, as payment of terminal benefits in an employment is not automatic, as they must be predicated on the conditions of service or terms of employment; and in the absence of this, a court could not embark on a voyage to import such. The learned counsel cited Nigeria Gas Co. Ltd v. Dudusola (2005) 18 NWLR (Pt. 957) 292 at 318, F-G and Enemchukwu v. Okoye (2017) 6 NWLR (Pt. 1560) 37 at 56, C-D. The learned counsel submitted that, therefore, the claimant is not entitled to any terminal benefits on the state of the pleadings, evidence and the terms and conditions of his employment. The learned counsel thereafter posed that, “assuming [without conceding] that the claimant is entitled to payment of severance benefit, how much is he entitled to be paid?” The learned counsel submitted that, the claimant has failed to show how he became entitled to N20,000,000.00 he is claiming as terminal benefit; and that, terminal benefits, being special damages, must be particularized in pleadings and proved strictly. In support of this, the learned counsel cited Akinkugbe v. E.H.N. Ltd (2008) 12 NWLR (Pt. 1098) 375 at 401-402, A-B. The learned counsel argued that, it was wrong to have lumped together the claim for terminal benefits, which is a kind of special damages and claims for pains, trauma, incapacitation and compensation for the alleged damages suffered by the claimant. The learned counsel submitted that, the claimant, having failed to prove his entitlement to terminal benefits, which were lumped up with other claims, the entire claims must fail together, as the Court is not in a position to separate them for the claimant.
The learned counsel argued that, the claimant could not be entitled to salary arrears in an employment that is not garnered with statutory flavour; and that, as such, if the Court comes to the conclusion that the employment was wrongfully terminated, it could only order payment of one-month salary in lieu of notice, as contained in the letter of appointment and the conditions of service. On this, the learned counsel referred the Court to Reliance Telecommunications Limited v. Adegboyega (2017) 8 NWLR (Pt. 1567) 319 at 332, B-Eand others, on the fact that, in wrongful termination, the claimant is only entitled to the amount he would have earned for the length of notice not given. The learned counsel also cited, on this point, the unreported decision of the Court of Appeal, Lagos Division, in Batelitwin Global Services Limited v. Muir Appeal No. CA/L/566/2013 [Delivered 3rd November 2016] in which, according to the learned counsel, the damages awarded by this Court was reduced to one-month salary in lieu of notice. The learned counsel submitted that, the claims for arrears of salaries, being in the nature of special damages, and not specially pleaded and strictly proved by the claimant,could not be granted. The learned counsel cited Agunwa v. Onukwe (1962) 2 SCN1, R275; Oladehin v. C.T.M.L. (1978) 2 SC 23,and particularly the unreported decision of the Abuja Division of this Court in Suit No. NICN/ABJ/05/2017: Mustapha & Ors v. National Information Technology Development Agency (NITDA) [Delivered 5th July 2018] and others. The learned counsel finally submitted that, the claimant has failed to justify his entitlement to the reliefs claimed in this suit; and urged the Court to dismiss the suit in its entirety. The learned counsel thereafter moved to issue 2.
Whether The Court Can Grant The Reliefs Not Claimed?
The learned counsel argued that, a court is strictly limited to determine a suit as formulated, presented and proved by the parties and cannot go outside the pleadings to grant a relief not claimed. On this, the learned counsel cited Dumez v. Nwakhoba (2009) 2 FWLR (Pt. 472) 4215 and others. The learned counsel argued that, a careful consideration of the reliefs formulated by the claimant would reveal that no relief was claimed on wrongful termination nor evidence led in support thereof. The learned counsel submitted that, a court could not grant a relief not claimed and could not also make a case different from the one made by the claimant. The learned counsel cited Gbenga v. B.S.J.S.C. (2006) 14 NWLR (Pt. 1000) 621-622, H-A; Iyeke v. Abu (2015) LPELR-25735 (CA) and others. The learned counsel argued further that, the failure of the claimant to formulate a relief on wrongful dismissal but onlythe ancillary reliefs derivable therefrom, is contemptuous presumption that the relief of wrongful dismissal is taken as granted thus, usurping the duty of the Court. The learned counsel argued that, it is the sole duty and right of a court alone to draw legal or factual conclusions and not that of counsel. On these bases, the Court is urged to deem this relief as abandoned. The learned counsel finally urged the Court to dismiss the entire reliefs ancillary to declaration of wrongful termination, since no relief was framed on wrongful termination. Thus, ended arguments on issue 2 and the learned counsel moved to issue 3.
Whether This Honourable Court Has The Jurisdiction To Entertain This Suit, In The Absence Of A Complaint Duly Signed By A Legal Practitioner?
The learned counsel stated that, the complaint by which this suit was commenced, was not signed by the legal practitioner or the claimant, as required by Order 4, Rule 4(3) of the NICN Rules and that as such, it is incompetent. The learned counsel submitted that, failure to sign the originating process, in this respect, is failure to satisfy a condition precedent and makes it liable to be struck out or set aside, as it robs the Court of vires. The learned counsel cited Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 9 at 22, B-C and Zenith Bank Plc v. Umom (2013) LPELR-22001 (CA) 22-23, G-E. The learned counsel submitted that, issue of jurisdiction could be raised at any time; and that, the word ‘shall’ used in Order 4, Rule 4(3) denotes compulsion. The learned counsel cited Achineku v. Ishagba (1988) 4 NWLR (Pt. 89) 411 at 420 and Onochie v. Odogwu (2006) 2 SCNJ 61 at 114 and submitted that,the failure to sign the complaint, as required by law, renders it incompetent and robs this Court of jurisdiction to entertain this suit. The learned counsel cited Braithwaite v. Skye Bank Plc (supra) and Buhari & Anor v. Adebayo & 2 Ors (2014) 10 NWLR (Pt. 1416) 29, A, which held that, for any originating process to be valid, it must be signed by the litigant in person or a legal practitioner, as defined in section 2 of the Legal Practitioners Act. The learned counsel further referred to pp. 22, para. E, 23, para. Aof the same suit, on the fact that, an unsigned writ, makes such suit incompetent and, robs the court of jurisdiction.
The learned counsel argued that, rules of court are not made for window dressing, but are meant to be obeyed and cited Oforkhire v. Maduike (2003) 5 NWLR (Pt. 812) 166 at 181, C-F and submitted that, an unsigned document, including a complaint, is both void and worthless. The learned counsel cited Omega Bank (Nig) Plc v. OBC Ltd (2005) 8 NWLR (Pt. 923) 547 at 581, B-E; Abia State v. Agharanya (1999) 6 NWLR (Pt. 607) 362 at 371, D-E.Finally citing Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010); Odejayi & Anor v. Harley Industries Limited (2013) LPELR-20368 (CA) 27-28, D-A, the learned counsel urged the Court to strike out the complaint and dismiss the suit.
The learned counsel, on the whole, urged the Court to dismiss the suit in its entirety. Thus, ended the final written address of the defence. I shall now turn to that of the claimant in rebuttal.
B. Final Written Address of the Claimant
JOSEPH C. ASAWABELEM franked the claimant’s Final Written Address.The learned counsel to the claimant started with the PO of the defendant. The learned counsel submitted that,the claimant’s claims determine the jurisdiction of the court; and that, in this case; the claimant’s main claims are based on termination of employment, distinct from the ancillary claims dealing with compensation. The learned counsel submitted that, the main claims fall within the jurisdiction of this Court. The learnedcounsel argued that, the defendant’s objection did not actually challenge the claims on wrongful termination but only the claims on compensation under the ECA. The learned counsel cited Abia State Transport Corporation & 2 Ors v. Quorum Consortium Ltd & Anor (2009) 3-4 SC p. 189 to the effect that,claimant’s claims determine the jurisdiction courts. The learned counsel submitted that, the Court could not dismiss the main claims because of ancillary claims, as doing so would negate the right of the claimant to fair hearing under section 36 of the 1999 Constitution.
The learned counsel submitted that, the ancillary claims could be heard with the main claims, as they arose from the same set of facts against the defendant and that, it would be untidy to bring the main claims before the Court and the ancillary claims to the Board. Relying on section 6(6)(b) of the 1999 Constitution, the learned counsel submitted that, as a superior Court, this Court has the vires to hear any dispute between persons and authorities. The learned counsel cited Adediran v. Interland transport Ltd (1991) 9 NWLR (Pt. 214) 155 SC and Elufioye v. Halilu (1993) 6 NWLR (Pt. 301) 570 SC. The learned counsel argued that, as a result of these authorities, sections 2, 6, 3, 70, 56, and 55 of the ECA could not debar this Court from exercising its jurisdiction to hear this case. The learned counsel submitted that, the defendant is not in a position to raise objection to the jurisdiction of this Court pursuant to the provisions of the ECA, when itself did not previously comply with the provisions of section 33(1)of the ECA that mandated it to contribute to the funds established for this purpose, under the ECA, as there is no evidence in proof that it did.
The learned counsel argued that, by a community construction of sections 6, 33-48, 52-56 of the ECA, no employee could apply to the ECA Board without formal or prior registration of the defendant with the Board. The learned counsel submitted that, the failure of the defendant to register under ECA prevented the claimant from approaching the Board. The learned counsel argued that, the case of Maduka v. Earth Moving International Ltd & Anor cited by the defendant’s counsel is from a court of coordinate jurisdiction and is therefore not binding on this Court.The learned counsel argued further that, the phrase ‘may be commenced’ used by Order 3, Rule 5 of the rules of this Court,implies discretion and not compulsion.The learned argued that, it is not compulsory that suits under section 55(4) of the ECA must be commenced by way of appeal and that, section 55(4) is void to the extent of its inconsistency with section 6(6)(b) of the 1999 Constitution. The learned counsel, citing Ogboru v. Ibori (2002) 1 NWLR (Pt. 1002) 542 at 574-586, argued that, the era of technical justice is over. The learned counsel argued that, the failure of the defendant to raise this issue before the final address means, it has waived the objection.
The learned counsel argued in the alternative that, even sections 55 and 56 of the ECA did not preclude the claimant from bringing an action in torts against the claimant. The learned counsel argued that, all that the claimant needed do under tort, is to prove negligence on the part of the defendant, who is under duty of care to the claimant, as established in Donogue v. Stevenson[sic], which is still part of the laws of this country. The learned counsel also cited Iyere v. Bendel Feed and Floor Mill Ltd (2008) 7-12 SC 151to the effect that, even where a court dismisses a suit based on damages, it is still bound to assess the damages it would have granted had the suit succeeded. The learned counsel argued that, as established in Donoghue v. Stevenson [supra], the employer is under duty to provide safe working place for its workers and submitted that,this duty is an inherent part of the contract of employment; and that, failure in this respect,means the employer has breached this important term of the contract and makes the employer liable to the injured claimant. The learned counsel citedIyere v. Bendel Feed and Floor Mill Ltd [supra].
The learned counsel argued that, the claimant was duly employed by the defendant via Exhibit C1 and by virtue of this, the defendant automatically owed the claimant the duty of care to provide safe working environment, and that, the claimant had shown that his pinky finger was chopped off simply because the defendant failed to provide safe working environment. The learned counsel argued further that, it was also established that the defendant was lackadaisical about whether its employees use safety gadgets but, are happy to extract fines from the workers that defaulted with the intention of making profit from these fines,in spite of their failed responsibility to strictly enforce compliance – sheet 8, paragraph 2 of the brief.
The learned counsel argued further that, on 8th and 29th November 2018 respectively, D1 and DW2’s evidence were contradictory under cross-examination on the issue of the measure the defendant took to ensure compliance with the use of safety gadgets, in that, while DW1 said the defendant enforced compliance by taking fines from defaulting employees, DW2 denied that the defendant took fines from its staff that defaulted in the use of safety gadgets. The learned counsel submitted that, this proves that there is no measure taken by the defendant to ensure compliance with safety measures; and as a result, the Court is bound to come to the conclusion that, the defendant was negligent. The learned counsel cited Uwaekwe v. State (2005) 9 NWLR (Pt. 930) 227; Usiobaifo v. Usiobaifo (2015) 1 SCNJ, 226; and Okoko v. Dakolo (2006) SCNJ 284.
The learned counsel argued that, the defendant admitted the negligence when Exhibit DA said the captain, under whom the claimant worked as deckhand, caused it and that, the company, should bear the responsibility. The learned counsel argued that, in a bid to deny the defendant’s responsibility, DW1 contradicted himself under cross-examination on 8th November 2018 by saying that, the claimant was the captain referred to in the report; and that, the claimant was verbally promoted to captain and terminated as captain. The learned counsel argued that, the falsity of DW1’s testimony under cross-examination is proved, when it is realised that the defendant, in paragraph 2 of the Statement of Defence and DW1 in paragraph 4 of his written deposition admitted paragraph 3 of the Statement of Facts, which stated that, the claimant worked as a deckhand for the defendant and that, it was no where stated in both the Statement of Defence and the deposition of DW1 that, the claimant was promoted to the rank of captain.
The learned counsel drew attention to the fact that, Exhibit DA was prepared independently of the claimant and clearly stated that the claimant was a deckhand. The learned counsel argued that, again DW2 contradicted the evidence of DW1 under cross-examination on 29th November 2018 when he stated that, the claimant was not a captain in the defendant. The learned counsel submitted that, arising from the foregoing; it becomes clear that, the claimant was not the captain referred to as being careless, but a superior officer under whom the claimant worked.
The learned counsel submitted that, the defendant is duty bound under labour law, to provide safe co-workers. The learned counsel cited Hudson v. Ridge Manufacturing Co. Ltd (1957) 2 DB 348, to the effect that, an employer was liable by keeping a co-worker, who by his habitual negligence, constituted danger to other co-workers. The learned counsel also cited Western Nigeria Trading Company Ltd v. Ajao (1965) NWLR 178 to the effect that,it is not enough that employer provides safety equipment;it must ensure that, it is used by means of strict rules and reasonable supervision. The learned counsel also referred to Finch v. Telegraph Construction & Maintenance Co (1949) 1 ALL ER. 452. The learned counsel submitted that, from the above, it was clear that, the defendant did not provide any safety gadget for the claimant to work; and that, assuming it did, it failed woefully to discharge its duty in ensuring that it was used. The learned counsel submitted that, the captain in the instant case, represented the defendant, and in accordance with the principle established in Hudson’s case [supra], the defendant failed to provide a competent co-worker, which was why it was recommended in Exhibit DA that, the defendant should shoulder the bill because, it was an industrial accident
The learned counsel submitted that, admission needs no further proof; and that instead of the defendant bearing the burden, by faithfully taking care of the bills incurred in treating the claimant and paying him compensation, it attempted to dodge this, by terminating the claimant’s employment for no just cause. The learned counsel cited NNPC v. Kilfco Nigeria Ltd (2011) 10 NWLR (Pt. 1255) 209; Ogolo v. Fubara (2003) 11 NWLR (Pt. 831) 231; Chukwu & Ors v. Akpelu (2013) LPELR-21864 (SC); MBA v. MBA (2018) LPELR-44295 (SC); Tar & Ors v. Ministry of Commerce & Industry & Ors (2018) LPELR-44385 (CA) on the fact that, admission needs no further proof. The learned counsel also cited section 27 of the Evidence Act in this regard. The learned counsel argued that, the defendant terminated the appointment of the claimant in order to dodge its responsibility to the claimant, in ensuring proper treatment of the injury and payment of compensation. The learned counsel submitted that, the fact that the claimant was not allowed enough time to get healed was proved, when it is realised that the industrial accident took place on 17th August 2013 and the claimant was fired on 26th June 2014, less than ten months after the industrial accident. The learned counsel submitted that, this shows the defendant was desperate to do away with the claimant.
The learned counsel argued that, the claimant showed that the accident occurred in the course of work and that, the defendant did not provide safety gadgets when he stated, under cross-examination on 15th May 2018 that, when they were about to start the journey, the boat was already grounded and that, it was while he was struggling to pull it out that, a wave flung it back at him and it injured his finger. The learned counsel submitted that, this further shows that, there was no strict supervision to ensure safety gadgets were used, apart from proving that, it was an industrial accident, as depicted in Exhibit DA. The learned counsel argued that, this peril was foreseeable, and that, the defendant just neglected to forestall it, by providing safety gadgets and ensuring that they were used and that, as such, the defendant is liable pursuant toDonughue v. Stevenson [supra] and Iyere v. Bendel Feed and Floor Mill Ltd [supra].
The learned counsel said the claimant had adduced sufficient evidence, contrary to the arguments of the defence counsel, to entitle him to judgment. The learned counsel argued that, the issue being made of the distinction between wrongful and unlawful termination is not one of substance but merely semantics, as what is unlawful is definitely wrongful.The learned counsel submitted that, the use of language was actually right, in line with section 11 of the Labour Act, which the defendant violated. The learned counsel submitted that, the omnibus relief claimed, takes care of any reliefs not stated to which, the claimant is entitled. The learned counsel said it was the duty of the defendant to tender its terms and conditions of service since one was not given to the claimant at the point of employment. The learned counsel argued that, the failure to give the claimant letter of termination violates section 11 of the Labour Act. The learned counsel argued that, from the evidence placed before the Court, it was obvious that the defendant never issued the claimant with a letter of termination but just ordered the security to disallow the claimant from entering its premises; and that, it was in order to circumvent this wrongful act, that the defendant procured Exhibit DB [Letter of Abscondment], which was never served on the claimant, despite DW1’s admission under cross-examination that the defendant had the address of the claimant.
The learned counsel argued that, a close perusal of Exhibit C2 would reveal that the claimant’s pinky finger was completely excised by the sharp blade of the boat engine and that, the finger could never grow back, showing that the claimant suffered a permanent partial disability. The learned counsel cited O.V.C. Okene in his book Labour Law in Nigeria: the Law of Work, p.155, para. 2. The learned counsel argued that, it is evident that the claimant could no longer do anything that requires the use of his pinky finger again in life, and would therefore be unable to take any job requiring its use.The learned counsel argued that, the defendant had admitted responsibility for the injury of the claimant in Exhibit DD,as supported by Exhibit DC, which contained the reports of the medical personnel that attended to the claimant in the hospital to which the defendant rushed him. The learned counsel argued that, since the defendant tendered all these exhibits, it would be impossible not to find it liable. The learned counsel submitted that, throughout the pleadings and evidence of the defendant, it never denied that the accident occurred in the course of the claimant’s employment, and thus, the pleadings of the claimant and evidence remained unchallenged. The learned counsel argued that, by virtue of these, the claimant has proved his case by sufficient evidence to be entitled to the reliefs sought.
The learned counsel now turned to the issue of not signing the compliant; and submitted that, the objection is misconceived and that, the misconception stemmed from not appreciating the distinction between a writ of summons and a complaint. The learned counsel submitted that, Order 3, Rules 1(i)(a) & (g) allow any other format to be used, hence, Order 4, Rule 3 cited by the defence counsel is not sacrosanct; more so, in the face of Order 5, Rules 1 & 2 which provide that any non-compliance may be treated as irregularity whereby the Court orders a departure from the rules in the interest of justice. The learned counsel cited Ogboru v. Ibori[supra]; Oloba v. Akereja (1999) 2 NSSC, 120 at 136; and Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355 at 4.3 [sic] on the need to eschew overreliance on technicality. The learned counsel finally urged the Court to grant all the reliefs claimed by the claimant and signed off. I shall now move to the Reply on Points of Law.
C. Reply on Points of Law
EKERE E. BASSEY franked the Reply on Points of Law. The learned counsel replied on the arguments that section 55 of the ECA is inconsistent with section 6(6) of the 1999 Constitution by saying the argument is misconceived because, there is no contradiction between the provisions of section 55 of the ECA and section 6(6)(b) of the 1999 Constitution. The learned counsel argued that, reference to Donoghue v. Stevenson would not avail the claimant because, address of counsel could not take the place of evidence and more so, that the claimant did not plead the particulars of the negligence, as required by law. The learned counsel relied on Aliucha & Anor v. Elechi (2012) LPELR-7823 (SC); Hamza v. Kure (2010) 10 NWLR (Pt. 1203) 620 at 649-650, H-A and other authorities on the facts that, address of counsel is not a substitute for evidence and the importance of particularizing negligence. The learned counsel submitted that, failure to plead same is fatal to the action and urged the Court to discountenance the claim for compensation on the ground of negligence. On the issue of the omnibus relief compensating for any relief not directly claimed, the learned counsel submitted that, the Court, not been Father Christmas, could not grant a relief not sought and cited Ugo v. Obiekwe (1989) 2 SC (Pt. II) 41. The learned counsel also cited Okoye v. Arueze (2017) LPELR-42574 (CA)and others to the effect that, courts do not act on sentiments or sympathy. The learned counsel urged the Court not to give vent to the claimant’s appeal to sentiments.
Thereafter, the learned counsel moved to the issue of the objection on the timing of raising the incompetenceof the claim for compensation. The learned counsel submitted that, the timing has nothing to do with the position of the law that this Court cannot hear the suit in its original jurisdiction but only on appeal and that, being issue of jurisdiction, it could be raised at any time. The learned counsel cited Citibank (Nig.) Ltd v. Titan Energy Ltd (2018) LPELR-44648 (CA) and others. The learned counsel argued that, the issue of not signing an originating process is not a mere irregularity, as argued by the learned counsel to the claimant,as the Court of Appeal in FBN Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444 and Citibank (Nig.) Ltd v. Titan Energy Ltd [supra]had held otherwise. The learned counsel submitted that, since the NICN forms part of the national judicature, these authorities must bind it. The learned counsel urged the Court to hold that, the unsigned complaint is invalid and urged the Court to dismiss the case.
Thus, summaries of the final written addresses of the parties have been completed. The next thing is to give my decision and justify it within the compass of the pleadings and evidence before me. In doing this, I appreciate that I must give very careful and solemn consideration to the processes before me, the evidence of the parties, inclusive of the demeanours of their witnesses, and the addresses of counsel to the parties and the cases cited. I also appreciate that all these must be done within the confines of the law. My duty is to come up with the correct position of the law in relation to the peculiar context of this case. This I proceed now to do. In doing this, I shall divide the decision into two parts. Part A shall deal with preliminaries while Part Bshall deal with the merits of the substantive case, in any event.
A. Preliminary Issues
There are two POs. The first is the one challenging the suit on the ground that the Court had no original jurisdiction on the subject matter and that it ought to have been filed first with the Board pursuant to sections 4, 6 and 55 of the ECA. The second is that, because, neither the legal practitioner nor the claimant signed the originating process, it is incompetent and robs the Court of jurisdiction. I take the first one first. I need not waste time on it. I state straight that this PO lacks merit. But before giving my reasons, let me observe that the issue of not commencing this suit in accordance with the provisions of the ECA has nothing to do with section 6(6)(b) of the 1999 Constitution as the learned counsel to the claimant strenuously attempted to argue.
Be that as it may, let me now justify my reason for holding that the objection lacks merit.This Court, in Suit No. NICN/LA/471/2012 – Amina Hassan v. Aitel Networks Ltd & Anor. [Ruling delivered 11th February 2015 by the Lagos Division],has had cause to pronounce on exactly the same type of objection as this, and after exhaustive consideration of the relevant provisions of the ECA, held thus:
“It follows that this action meets the requirements of section 12 (1) & (2) of the ECA which give the claimant a right of choice of approaching the court straight to ventilate her grievances once the action is connected with failure of duty of care on the part of the defendant and arose in the course of work. The NPO which is premised on sections 4 and 6 of the ECA plainly misconceived the provisions of section 12 (1) & (6) of the ECA. The NPO could only hold if the claimant intended to pursue compensation under the Act. Where the claimant does not intend to pursue compensation under the Act and her action is based on common law simplicity or negligence, and the injury in issue occurred during the course of work, the claimant is at liberty to institute an action directly against the tortfeasors without coming under the ECA.”
This is a superior court of record, which operates under the banner of stare decisis. I have carefully read the ruling and share in toto the reasoning and conclusion reached by His Lordship, Adejumo, PNICN. I therefore considered myself bound by the sound ratio decidendiestablished in the case; and I hereby abide by it. I need to say that the learned counsel did not submit certified true copies of the judgments of this Court cited as having decided differently and I could not lay my hands on them to appreciate the truism of what is attributed to them and how the court arrived at those supposedly different decisions. It is undoubtedly the duty of counsel who cited an unreported decision of a court to furnish the court before which such unreported decision is cited, a CTC of that decision before the court could take judicial notice of same – seeYusuf & Ors v. Toluhi (2008) LPELR-3533 (SC) 6-7, G-A.As I am not availed with copies of these judgments, I am not in a position to assess them and come to a conclusion on what they decided or did not. And like I have held earlier, I am satisfied with the earlier decision of this Court I have cited above, as stating the correct position of the law on this issue at hand. Consequently, I hold that the objection lacks merit and it is accordingly dismissed. I move to the second objection.
Like I indicated earlier on, this objection is based on the ground of failure to sign the complaint by which this action was commenced. It is not raised in the portion of the learned defence counsel’s address marked “Preliminary Objection”, but rather made the subject matter of the third issue formulated for the determination of the suit. I consider it appropriate to take it here because; it is a threshold issue unconnected with the merit of the case and is therefore, a preliminary objection proper. It is a misnomer for the learned counsel to the defendant to have argued it with the merit of the case.He should have taken it along with the preliminary objection earlier raised, argued and determined by the Court.
Let me observe first that, this objection, as it is, is purely procedural and adjectival to the jurisdiction of this Court. It is must therefore be distinguished from objection touching on the substantive jurisdiction of the Court. There has always been a world of difference between objections raised to the jurisdiction of courts on substantive and procedural points. Where a court lacks substantive jurisdiction: that is, where a court has no jurisdiction over the subject matter of a case or persons in a case by virtue of the statute conferring the court with jurisdiction, it lacks the jurisdiction ab initio, and this lack of vires cannot be cured or waived by the failure to raise the point on time or by the consent of the parties, but this is not the case, where substantive jurisdiction of the Court is not questioned, but the procedure of activating it is being questioned, as it is in the instant case. As the jurisdiction is intact in such situation, and the complaint is about procedure, it can be waived by failure of the person who has the right to complain to do so on time. This is exactly what happened in this case. Order 1, Rules 9(2) & (3) and Order 5, Rule 1 of the NICN (Civil Procedure) Rules 2017 made it abundantly clear that any of the rules or any technical irregularity occasioned by failure to abide the rules of this Court and whichcould result in miscarriage of justice may be disregarded or waived in the interest of justice. The Court is even enjoined to eschew technicality and promote substantive justice – see Order 5, Rules (3) & (4)(a) of the NICN Rules.
I observed that, in all the authorities cited, none considered the rules of this Court but those of other courts, which do no have exactly the same provisions as the rules of this Court in view. So, in effect, these authorities are distinguishable and are consequently hereby distinguished. They are therefore not applicable in this circumstance; and I so hold. The rules of this Court have unambiguously provided the penalty for failing to raise objection on procedural irregularity timeously, and the penalty is that, the objector would be deemed to have waived it – see Order 5, Rule 2(1). I am of the firm view that, this is an appropriate situation where the interest of justice demands, as enjoined by the rules of this Court, that the irregularity in not signing the complaint be waived because, the objection, when considered critically, has no other purpose than to scuttle access to justice on the altar of crass technicality. This should not be and it cannot be. The rules of this Court have said the Court should promote substantive justice over technicality. These are all positive commands of the rules of this Court and I am bound to obey them. The defendant has not suffered any injury by the defect complained of in the complaint. It has neither been misled nor prevented by the defect from defending the action.
The defendant has, in fact, filed its Statement of Defence, led evidence, filed its final written address and contested the case on its merits. To accede to its request at this stage, and declare the suit incompetent for this mere procedural irregularity of negligence to sign the complaint, would amount to making the law an ass and an instrument of injustice; and allowing the defendant to profit from its fault in raising the objection timeously, as mandated by the rules of this Court.The law is that he who wants equity must himself have done equity. The defendant who is challenging non-compliance with the rules of this Court must raise its complaint in accordance with the same rules that it is complaining of being breached. It cannot fail to obey the rules of this Court and yet ask this Court to punish another person for failing to obey the same rule. The defendant has not raised the objection on the procedural irregularity of not signing the complaint timeously as enjoined by the rules of this Court and thus, incurred the penalty of waiver of the right to complain. I therefore hold that the defendant has waived its right to challenge the non-compliance with the rules of this Court with regard to signing the compliant by which the suit was commenced.
Besides, in Oluchi J. Anwoko v. Chief (Mrs.) Christy O.N. Okoye & Ors. in Suit No. 153/2005 [delivered January 22, 2010] and reported by TheGuardian at guardian.ng – delivered by Google, the Supreme Court expatiated on similar issue, where an originating summons was not signed by the registrar, as enjoined by the rules of the Federal Capital Territory High Court and objection was raised after the defendant/appellant had filed her counter affidavit; and held:
“The jurisdiction of a court donated either by the constitution or by statute remains unaffected by breaches of rules of court. The sustained challenge of this issue of jurisdiction founded on the breach of Order 6 Rules 8 of the Federal Capital Territory High Court Rules was, with respect, grossly misplaced, not worth the time and trouble of the court and even counsel for the parties.
The second issue pertains to whether the appellant was precluded from raising the preliminary objection in view of the steps he had taken in the proceedings by filing a counter-affidavit and a further affidavit. As I have held earlier on in this judgment, the jurisdiction of the court to hear and determine the suit remains intact notwithstanding the breaches of Order 6 of the Rules. On this issue, the Court of Appeal reasoned:
‘The practice is that where a party has become aware of non-compliance, or where a writ is defective, he should apply for striking out of same before taking any further steps in the proceedings. Otherwise, he will be estopped from raising the issue of defect.’
I do not think I have any reason to impugn the findings and conclusions of the two courts below which I, therefore, also endorse. This issue is, therefore, also resolved in favour of the respondents.”
The decision of the Supreme Court in the above case had been adopted completely and reiterated by the Supreme Court in its more recent decision in Oliyide & Sons Ltd v. OAU, Ile-Ife (2018) LPELR-43711 (SC) 22-28, A-C.This is thus the current position of the Supreme Court on this point of law. The objector has not cited any more recent case than the two Supreme Court cases cited above. All the cases cited by the objector must therefore bow before the ex cathedracommand of the Supreme Court as contained in the two cases cited above on this issue. Even the argument of the defence counsel that all unsigned documents are worthless cannot be farther from the truth.
While it is undoubtedly the law that an unsigned document is worthless, this principle of law, as is usual with all principles of law, is not without some exceptions. It all depends on the circumstance. An unsigned document could be held binding notwithstanding the defect of not being singed in some situations –Awolaja & Sons v. Seatrade Groningen B.V. (2002) LPELR-651 (SC) 10-11, D-B. It should also be noted that not signing contractual documents should be distinguished from not signing court’s processes which bindingness are not depended on the consent of the parties but on the fact they are filed in the courts and served on the other side. The claimant herein has not disowned the complaint herein; and has adopted and led evidence on it and the defendant has responded appropriately. Whatever extrinsic defect of not signing, it is cured by the signing of the Statement of Facts, which forms part of the originating processes – see Order 3, Rule 9(a) of the NICN Rules [supra].
I also wish to point out, with respect to the present case, that the Statement of Facts, though undated, was nevertheless signed, as required by law. This Statement of Facts constitutes part of the originating process. In fact, the law is that, Statement of Facts supersedes the writ and that, where both are filed; the Court only takes cognisance of the Statement of Facts in preference to the writ in determining the action filed– Okanu v. Okanu &Anor. (2018) LPELR-45021 (CA) 22, B, where the Court of Appeal held that: “The writ subsists until the Statement of Claim is filed.” Once the Statement of Fact, which the rules of this Court made integral part of the originating process, is filed, and properly signed, since it supersedes the writ, any procedural defect therein on the writ, is cured.The defendant responded to the Statement of Facts and not the complaint; hence, I cannot not even countenance its grouse with a complaint it has no business with at all.
I also wish to point out that the rules of this Court did not prescribe any punishment for failure to sign the complaint but provided for failure to indicate the address for service of the originating process, by saying it shall not be accepted for filing and where wrongly accepted for filing, the Court may set it aside on the application of the defendant – see Order 4, Rules 4(3) & 5. It plainly shows that the rules treat the issue of signing of the complaint as a mere irregularity waivable. Let me also point out that the Order 4, Rule 4(3) cited by the defence to anchor this objection is even cited out of context. The rule did not say the complaint should be signed but that the originating process should be signed. Hence, where it is shown that the Statement of Fact, which supersedes the compliant is signed, and on which the case is to be fought, I cannot see the rationality in insisting that failure to sign the complaint must be fatal to the case. This could only be, where the claimant claims, as per his complaint [writ], but where he claims by virtue of the Statements of Fact, which is deemed to supersede the complaint [writ], and the Statement of Facts is signed, as in the instant case, the non-signing of the complaint would be irrelevant and cannot render the suit incompetent – see Okanu v. Okanu & Anor. supra.
It should also not be forgotten that the failure to sign the complaint here is that of the counsel and the litigant is not in a position to know that his counsel did not follow the proper procedure. I think this too, is one of the situations, where the Court ought to invoke the doctrine of law that mistake of counsel on which his client/litigant is not adjudged to have connived in foisting, should not be visited on the client/litigant –see R. Lauwers Import-Export v. Jozepson Industries Co. Ltd (1988) LPELR-2934 (SC) 49-50, F-C.
Arising the foregoing, I do not entertain any hesitation in holding that the objection raised against the jurisdiction of the Court under issue three of the Final Written Address of the defendant is totally unmeritorious, and I so hold. Having held that the issue is totally unmeritorious, it is hereby resolved in favour of the claimant and against the defendant. The objection is consequently dismissed in its entirety as totally lacking in merit.Having dismissed this second objection, it means both objections raised against the jurisdiction of the Court have been dismissed. As it is now, there is nothing clogging the jurisdiction of the Court to delve into the merit of the case. I now move to examine the merit of the case.
B. Decision on the Merit of the Case
The learned counsel to the claimant did not formulate any issue. So, I am left with the two issues formulated by the learned counsel to the defendant for the determination of the suit on its merits. I adopt the two issues to determine this case. I shall treat the two issues together but in reverse order.
Before I go into the meat of the arguments on the two issues, let me clear some common preliminary pointsraised with regard to the two issues. First, it is necessary to draw attention to the fact that two streams of cases are combined together in this suit: Claims on wrongful termination and action in tort of negligence for injury sustained in industrial accident. The learned counsel to the defendant seemed to be of the view that the two different cases could not be lumped together, otherwise, he would not have argued strenuously against lumping the reliefs claimed under the two different causes of action together. I think section 14 of the National Industrial Court Act [NICA] enjoins,allowsand encourages the bringing together of different actions and reliefs in one suit by a claimant against the same defendant in order to avoid multiplicity of suits between the same parties. What matters is whether the Court has jurisdiction over the different causes of action.
The learned counsel to the defendants has argued that because the reliefs were lumped together, the Court cannot grant them. Let me state straightaway that this argument is misconceived and preposterous. What is important,is,whether reliefs have been claimed, and not the elegance in drafting or arranging the reliefs. It is the duty of courts, after arriving at the conclusion that the claimant proved his case, to go through these reliefs properly so-claimed and see which the claimant is entitledto amongst them– the principle of law is ubi jus ubi remedium. Once these reliefs are clearly stated and are not nebulous or vague, it would be immaterial that the reliefs for torts and those for wrongful termination were lumped together. This situation should and must be clearly distinguished from the situation where a relief is not claimed at all.Where reliefs are claimed, it would be utterly wrong for the Court to say it cannot go through them to see which the claimant is entitled to. In any case, section 14 of the NICA [supra] even enjoys this Court to bring up any relief to which a party is entitled. The principle of law that takes precedence is ubi jus ubi remedium – see MTN Nig. Communcations Ltd v. Sadiku (2013) LPELR-21105 (CA) 31-32, G-F.Section 14 of the National Industrial Court Act, provides thus:
“The Court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.” [Underline mine for emphasis]
I think that settles the issue of lumping up reliefs for torts and wrongful termination.I make haste to add that, it not being the argument that the claims could not be brought together in one suit, then, it follows that, if the claims for tort and breach of contract of employment could be lawfully joined together in one suit, the reliefs sought would not be defeated simply because they were lumped together, as far as the Court is not misled as to which relief it is granting or refusing and the ground for granting or refusing such. The Court can definitely pick from these lumped-up reliefs, which one it is granting or otherwise or rather which one relates to wrongful dismissal or torts of negligence. I therefore discountenanced the arguments of the learned counsel to the defendant in this regard, as being totally misconceived. Let me now go on to the two issues formulated for the determination of the case.
ISSUES 1& 2:
1. WHETHER THE CLAIMANT HAS ADDUCED SUFFICIENT EVIDENCE TO ENTITLE IT TO THE RELIEFS SOUGHT?AND 2. WHETHER THE COURT CAN GRANT RELIEFS NOT CLAIMED?
Under these issues, the learned counsel to the defendant argued essentially that the claimant had not discharged the burden of proofs devolved on him by way of pleadings and evidence adduced; and that, because a relief is not specifically framed for wrongful dismissal the Court cannot grant the ancillary reliefs connected to wrongful dismissal. The learned counsel to the claimant argued essentially in rebuttal that, because the defendant had admitted the allegations of the claimant, there is no need for further evidence, and hence, the claimant had discharged the burdens placed on him and that the distinction being made between wrongful and unlawful dismissal is pedestrian and of no avail. The claimant had pleaded wrongful termination of his appointment in paragraphs 7 and 11 of the Statement of Facts and claimed one-month salary in lieu of notice and his terminal benefits, but surprisingly did not pray that the termination be declared wrongful.
It is this, which the learned counsel to the defendant had picked up to say that, even if sufficient evidence were adduced, the Court would not be able to grant any of the ancillary reliefs. I entertain no reservation that this argument is specious. If the Court finds that the claimant proved his case, it would not refuse to grant him the reliefs properly claimed simply because a particular technical language was not used in drafting the reliefs. If, like I said, the ancillary reliefs that flowed naturally from the principal reliefs are claimed, and sufficient evidence is adduced to justify entitlement to these, it is logical that, the initial relief is consumed in the consequential, to complete it. To make a differencebetween the ancillary and the main reliefs in this instance would amount to making a distinction between half-a-dozen and six.Section 14 of the NICA, in conjunction with the doctrine of ubi jus ubi remedium,andMTN Nig. Communcations Ltd v. Sadiku (2013) LPELR-21105 (CA) 31-32, G-F,take care of this argument. I therefore dismiss the arguments of the learned counsel to the defendant in this regard as totally unmeritorious. Issue 2, as formulated by the learned counsel to the defendant, is resolved therefore,against the defendant and in favour of the claimant. Now, I move to the Issue 1 as formulated by the learned counsel to the defendant.
First of all, the learned counsel to the defendant cited Morohunfola v. Kwara State College of Technology [supra] and Okomu Oil Palm Co. Ltd v. Iserhienrhien [supra] on the initial burden of proof on a claimant who alleged wrongful dismissal.In Morohunfola v. Kwara State College of Technology [supra] (1990) LPELR-1912 (SC) 16, A-C, the Supreme Court held:
“In an action for wrongful dismissal it is necessary, therefore, to plead the contract of employment, which is the foundation of the action, and not to leave the fact of the existence of the contract and its terms to speculation by the defendant and the trial Judge. Without the contract and its particulars being pleaded by the plaintiff no evidence of the terms of the contract which has been breached would be admissible at the trial; and this will be fatal to the action since it will lack foundation.”
In Okomu Oil Palm Co. Ltd v. Iserhienrhien [supra] (2001) LPELR-2471 (SC) 21-22, G-Ethis principle of law was reiterated by the Supreme Court, stating emphatically that, it is the responsibility of the plaintiff to plead and tender his terms and conditions of service to succeed in an action of wrongful dismissal, on the ground of breach of the conditions of service. The paragraphs of the Statement of Facts relevant to the issue of termination are paragraphs 3, 7 and 11 wherein the claimant pleaded the letter of his appointment, the abrupt oral termination of his appointment without the payment of his terminal benefits and others, contrary to the terms of his letter of employment and the refusal to pay his one-month salary in lieu of notice. It is very obvious from the above that, no mention was made of the conditions of service and none was tendered. The letter of appointment was tendered and marked as Exhibit C1.
In Exhibit C1, at paragraph 8 thereof, I found clearly stated that “other terms and conditions of your appointment are as stated in the company’s Conditions of Service.” No such document was tendered nor even referred to in the pleadings of the claimant. The learned counsel to the claimant had argued that, the claimant was not given this document. I wish to point out that, the right of counsel to address is limited strictly to rationalizing the facts of the case as presented by the parties and drawing the attention of the Court to the probable logical and legal conclusions inferable therefrom and not to give evidence – see Nonkom & Ors v. Odili (2009) LPELR-3927 (CA) 46-48, E-A.Now, the defendant pleaded in paragraph 10 of the Statement of Defence that the claimant was not entitled to notice since he absconded his employment. Obviously, the letter of employment provided for notice by either side to end the employment, but I cannot find where the letter of employment dealt with the issue of abscondment or situation where notice would not be necessary: that is to say, situation where the employer [defendant] could summarily dismiss the claimant.
However, I wish to observe that the claimant based his claim for entitlement to salary in lieu of notice strictly on the terms and conditions as contained in the letter of appointment and not on the extra-conditions to which his letter of appointment referred and which is not tendered. I could not find that both Okomu Oil Palm Co. Ltd v. Iserhienrhienand Morohunfolu v. Kwara State College of Educationdetermined that, where the terms and conditions of service in issue is sufficiently dealt with in the letter of appointment and the letter of appointment is tendered that, the claimant would still not have satisfied the burden of proof simply because, he did not go further to tender the conditions of service. I think it all depends on the peculiar facts of each case. Where the terms and conditions of service are fully stated in the letter of appointment or where truly, a separate conditions of service is not given or does not exist; and the letter of appointment had contained enough terms and conditions to deal with the issue on hand, it would definitely be preposterous to expect the claimant to tender the surplusage where the conditions of service simply duplicated the terms fully contained in the letter of appointment or where the conditions of service is not in existence or not given, to produce the non-existent document; and where it is not tendered in such situations, to hold that the claimant has not proved his case. The two Supreme Court cases cited did not decide anything like that. A cited case is only an authority on the facts and issues decided and subsequent similar facts and not for all purposes.
Be that as it may, what I found here is that,the learned counsel to the claimant argued that the conditions of service exists and that the claimant could not tender it because he was not given. I could not find anything relating to the conditions of service pleaded, not to talk of not been given nor evidence led thereto. I also could not find anything relating to how the claimant was terminated pleaded nor evidence given, except that the claimant just stated that he was orally and abruptly terminated.The date of such termination was not given nor who orally did the termination. So, all these pieces of evidence under cross-examination on which the learned counsel to the claimant relied to argue that, the defendant had admitted that it wrongfully terminated the claimant would be of no avail. This is because,before a person could make use of evidence elicited under cross-examination; he must have pleaded facts relating to such or else, has to amend the pleadings to accommodate such. There is no amendment done here to accommodate any piece of the purported admission under cross-examination.As such, admission could only be made of what has been pleaded. The law is that, any evidence on an unpleaded fact goes to no issue – seeOnube v. Asuakor & Ors (2019) LPELR-47231 (CA) 22-23.In any case, I could not even find any evidence of admission made by the defendant that it wrongfully terminated the appointment in issue.
The evidence caviled at by the learned counsel to the claimant is that, the defendant is economical with truth on its purported inability to serve the alleged letter of dismissal on the claimant because it had the address of the claimant and did not send it there. This, to me, has nothing to do with the pleading and evidence that the claimant absconded. The situation of this case is even made worse, when it is realised that the defendant pleaded abscondment and gave evidence thereto, as the justification for terminating the appointment of the claimant and the claimant did not file Reply to the Statement of Defence. In a situation like this, and in the absence of cogent evidence on record to the contrary, the Court is bound to deem the averments as admitted–See Odu-Alabe v. Ologunebi (2015) LPELR-25746 (CA) 35-36, E-A.
The only piece of evidence from the claimant on this, under cross-examination on 15th May 2018, was that he went to meet the Personnel Manager when his injured finger was bleeding and he threw him out; and when asked by the Court when he went to meet the Personnel Manager, he said he guessed it was June 2014 which the counsel to the defence was talking about. When further asked by the Court, when he was thrown out, he said, he could not remember the time. How does these pieces of evidence assist the claimant in proving wrongful termination, not to talk of dispelling averments of abscondment contained in the Statement of Defence without a Reply pleadings filed and the evidence thereto led by the defence? I also observed that the claimant is claiming arrears of salaries, insisting that he remained in the employment of the defendant because he was unlawfully terminated. Under cross-examination, the claimant went further to state that because, he has up till now, not been given letter of termination, he remained in the employment of the defendant.
The claimant had pleaded in paragraph 7 of his Statement of Facts unequivocally that his appointment had been terminated. So, he is aware that the employment had come to an end, albeit purportedly wrongfully. There is no doubt that, the employment in issue is not clothed with statutory flavour. Hence, the vestiges of the common law principle that, once common law employment is terminated, whether wrongfully or not, the only remedy opened to the aggrieved party, is damages calculated in relation to the length of notice, seemed to linger on, though on a wobble leg, under the current legal regime of labour and employment relations in Nigeria, as enshrined by the Constitution Third Alteration Act.To depart from this principle, the possibility of which, the Constitution Third Alteration Act dangles, is not a light issue. I have not been so persuaded and I have not found any reason to depart from this principle in the present case, bearing in mind my reasoning hereinbefore.
Again, the claimant pleaded and tendered contradictory evidence in respect of his entitlement as one-month salary. He claimed N73,809.96 as what he is entitled to, as one-month salary in lieu of notice. He pleaded the letter of appointment and the current pay-slip, while he tendered the letter of appointment as Exhibit C1; he failed to tender the pay-slip. He did not lead any evidence to show how Exhibit C1 yielded the amount claimed from the different heads of monies stated therein; and when I added up these and divided the grand total by 12, it did not yield the dividend of N73,809.96 being claimed. It simply means that, there was no evidence in support of this obviously special damages that is required to be proved to the hilt by law –see Taylor & Ors v. Ogheneovo (2011) LPELR-8955 (CA) 14-21, C-B. Furthermore, and obviouslyin Exhibit C1, I could not find anything relating to terminal benefits or the kind; and it must be remembered that, the claimant did not tender the conditions of service, in which such issues are usually dealt with. The argument of the learned counsel to the claimant that the claimant did not tender it because the defendant did not give same to the claimant, without any pleading or evidence in that regard, goes to no issue. Address of counsel cannot substitute for lack of pleadings and evidence on a vital issue like this – see Oforishe v. Nigerian Gas Co. Ltd (2017) LPELR-42766 (SC) 17-18, F-B. If the claimant’s counsel left what he ought to have done during pleadings and drafting of the depositions for his client, the client/claimant must take the state of affairs as they are and face the consequences.
Flowing from all I have said above, it is axiomatic to come to the inescapable conclusion that the claimant has not pleaded nor adduced enough evidence to justify a finding of wrongful termination in his favour. The argument that the defendant violated section 11 of the Labour Act by not given the claimant notice of termination or notice before termination is misconceived in that, it failed to take cognisance of subsections (5) & (6) of the said section 11 of the Labour Act, which provides that, an employer is not obliged to comply with this requirement on certain situations, where the conduct of the employee warrants it. The employer pleaded and led evidence on abscondment and argued that this justified its non-issuance of notice to the claimant; and that,under this situation, the claimant is not entitled to payment in lieu of notice. No reply pleadings were filed nor cogent evidence given to disprove this. I cannot find the evidence of the claimant under cross-examination that he was barred from entering the premises of the defendant without knowing the date such happened, as cogent enough to disprove the evidence that he absconded, more so, in the absence of reply pleadings.
Apart from the fact that I could not find any evidence of admission on the part of the defendant, the argument of the learned counsel to the claimant that, the defendant had admitted wrongful termination under cross-examination is of no avail. This is because only what is pleaded could be admitted. When the claimant did not plead the exact conditions of his appointment that was breached in the termination and also failed to tender the conditions of service, no wrongful termination has been proved; and I so hold.It is also clear that the claimant has not discharged his burden of proof as devolved on him in prove of wrongful termination of his employment in the instant case, and I so hold. I shall now examine the other aspect of the case, that is to say, the aspect concerning tort of negligence leading to industrial accident, the consequential injury and the damages claimed.
The learned counsel to the defendant’s argument here too, is that, the claimant has not proved negligence against the defendant, as required under the law. The learned defence counsel argued that, the claimant failed to particularise the ingredients of negligence in torts as required by law and that, the injury in focus was self-inflicted and the defendant is not therefore liable in torts. The learned counsel to the claimant in reply argued that, the defendant had admitted negligence and hence, the claimant needed not prove anything; and that in any case, the claimant had proved negligence against the defendant. The learned counsel to the defendant cited a lot of authorities on how to plead and prove negligence in personal injury cases. It suffices for me to cite just one Supreme Court case and examine whether the claimant satisfied the requirements of the law in pleading and proving negligence on the part of the defendant, leading to the injury in issue. In Ighreriniovo v. S.C.C. Nig. Ltd (2013) LPELR-20336 (SC) 14, C, the Supreme Court stated, and I quote:
“To prove negligence, a plaintiff must establish that the defendant owes him a duty of care; that he is in breach of such duty of care and that the plaintiff suffered damages as a result of the defendant’s failure or breach of that duty of care.”
The pleadings of the claimant on this issue are as contained in paragraphs 3, 4, 5, and 6 of the Statement of Facts, the gravamen of which is that the claimant was employed as deckhand and in the course of carrying out his duties on 17/08/2013 he had his pinky finger injured and he reported to the defendant, who neglected and refused to do anything; and instead continued to ask him to work, leading to the deterioration of the finger. From the above, could it be said that the claimant pleaded negligence leading to the accident and the consequential injury on the part of the defendant? The answer is obviously no! The claimant pleaded no nexus nor adduced any evidence in his written deposition adopted in this Court between the causation of the accident and the defendant, apart from the fact that the accident occurred in the course of carrying out the work of the defendant. It is not stated in what manner the accident occurred and in what manner negligence on the part of the defendant caused or contributed to it. It was not pleaded that the claimant was not putting on safety gadgets and the reasons for this or that the claimant was not properly supervised or what exactly the defendant did wrong that led to the accident. The claimant just stated simply that he sustained injury in the course of his duty: Not more, not less.
The only thing near to negligence on the part of the defendant pleaded, was the neglect and refusal of the defendant to do anything after the occurrence of the accident,after the claimant reported the accident to the defendant and being repeatedly asked to continue to work with the injured finger. As it is, it is very clear that this aspect of the pleading relates to post-accident negligence or dereliction of duty on the part of the defendant to treat the injury after the accident; and not pre-accident negligence, which is what the law required, as shown above.The learned counsel to the claimant does not seem to know that, what is required is that, particulars of the breach of duty must be pleaded because, it is from these that, negligence could be anchored. It is only if the defendant was responsible for the injury either wholly or contributorily that the issue of being responsible for the treatment and damages would come to play.
Paragraphs 3, 4, 5, & 6 of the Statement of Facts were restated verbatim in the written deposition of the claimant, which constitute his evidence on this issue. It follows that the claimant has not satisfied the law in this regard. That is to say, the claimant has failed to plead and prove his case as required by law; and I so hold. The Court of Appeal has stated the effect of not proving negligence in torts in New Improved Manibannc Ventures Ltd v. FBN Plc (2009) LPELR-8757 (CA) 34, D-E, and I quote:
“Moreover, as the appellant did not prove any of the elements or ingredients of negligence against the respondent, the issue of damages does not arise.”
To even make the case of the claimant worse, his counsel relied on the fact of theacceptance of the defendant to treat the claimant as evidence of admission of negligence by the defendant. The learned counsel to the claimant also relied on Exhibit DA. Looking at Exhibit DA, the reason why the company agreed to treat the claimant was that the accident was an industrial accident and not because the defendant admitted to have been negligent in causing the accident. On the contrary, the defendant actually put the blame of the accident squarely on the claimant. Now, if item 1) of the portion of Exhibit DA captioned “Root Causes” is viewed together with items 1) & 2) of the portion captioned“Recommendation”, it would appear clear that, the same person referred to as ‘deckhand’ under item 1) of the portion headed “Root Causes” is also the one and the same person later referred to, as the ‘captain’ under item 1) of the latter and subsequent portion headed “Recommendation”. A document speaks for itself;and oral evidence cannot vary or alter the contents of a document, which are there for anyone to see and interpret –Essien v. Etukudo (2008) LPELR-3625 (CA) 25, A-E.From the above deduction, since the claimant was the same person called both deckhand and captain, and the captain was blamed for the accident, the defendant did not admit any negligence in causing the accident but rather shifted the negligence to the claimant.
So, all the arguments of the learned counsel to the defendant on the contradictions of the pieces of evidence of DW1 and DW2 on exhibit DA are really irrelevant. Besides, the learned counsel to the claimant should know that, in an action like this, which is declaratory in nature, the claimant must succeed on the strength of his case, and not on the weakness of the defence –see Onyia v. Onyia (2011) LPELR-4375 (CA) 17, C-E, where the Court of Appeal stated the position thus:
“It is settled law that a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. The onus of proof does not shift until it has been satisfied by a plaintiff with reliable and credible evidence.”
Apart from the fact that I did not find any evidence of admission on the part of the defendant as explained earlier on, the learned counsel seemed to be fixated on admission; failing to realise that, it is the primary duty of the claimant to plead necessary facts establishing his cause of action and adduce evidence in support thereof; and not the duty of counsel to attempt to do this in the final address. It is only what the claimant pleaded that admission on the part of the defendant could be founded upon: for any evidence on an unpleaded fact goes to no issue. For the second time, it needs be reiterated that admission only becomes relevant if and only if, the necessary facts relating to the admission in issue are pleaded; otherwise, evidence of the purported admission being touted, goes to no issue.I need restate for the benefit of the learned counsel to the claimant that, it is only what is pleaded that the other side could admit. The claimant did not plead negligence on the part of the defendant in causing the accident and the consequential injury, but only pleaded refusal to treat the injury after becoming aware of it; and even in this, the evidence on record showed contrariwise. It is agreed that the defendant is under obligation to provide safe working environment and safety equipment for its workers. That is not negotiable. But, the question is: was this duty of care breached in the instant case or did the claimant prove, in the instant case that, the defendant breached this duty? The answer, flowing from my reasoning above, is an emphatic no, and I so hold.
Once, the initial negligence of causing or contributing to causing the accident and injury was not proved, the alleged subsequent acts of the defendant, in not taking care of the injury, even if proved, which is unfortunately not proved, cannot amount to negligence on the part of the defendant in causing the accident, since the defendant was not proved to have caused or contributed to causingthe accident, it could not be held liable for the failure to treat it. Responsibility to treat the injury and liability for damages thereof only arise from responsibility [contributory or fully] in the causation of the accident: where there is no responsibility for causing the injury, no responsibility for treating it and paying damages arise.The mere fact that the defendant took it upon itself to treat the injury and bear the cost of the treatments is no proof of admission that it was contributorily or wholly responsible for the accident. I therefore hold again that the claimant has failed woefully to plead and lead evidence to prove negligence on the part of the defendant in the instant accident and consequential injury in issue. Thus, the case of the claimant on tort must fail, and I accordingly hold that if fails. Thus, both sides of issue 1 have been resolved in favour of the defendant and against the claimant. That being the end of the two issues adopted for the determination of this case, the case must come to an end.
Having held that the case of the claimant on wrongful termination and torts failed, the next logical thing is,to give the consequential order, which must naturally follow: thisis to dismiss the case. Consequently, I hereby dismiss this suit as totally lacking in merit. I award no cost.
Judgment is entered accordingly.
HON. JUSTICE O.O. AROWOSEGBE