IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 8th day of October, 2019 SUIT NO: NICN/PHC/67/2017
MRS. AUGUSTINA TOBERE AZUKA OJEI
(For herself and on behalf of the dependants/beneficiaries
of the Estate of PAUL AZUKA OJEI (Deceased). ----------------CLAIMANT
1. BAKER HUGHES INCORPORATED
2. BAKER HUGHES COMPANY LIMITED--------------------DEFENDANTS
George T. Ogara with O. O. Olajide, O.G. Nweke and G.O. Agbo for the Claimant
O.I. Nwanya with Emeka Ozuzu for the Defendant.
This suit was commenced by way of a General form of Complaint filed on the 2nd of August, 2017 along with verifying affidavit, statement of facts, list of witnesses, witness statement on oath, list of documents and copies of documents to be relied upon at trial.
The suit was originallybefore the late Hon. Justice A. Ibrahim before same was transferred to this court sometime in October 2018.
Arising from the statement of fact, the Claimant is claiming jointly and severally against the Defendants the following:
1. A DECLARATION that the claimant is entitled to employee compensation for the death of PAUL AZUKA OJEI (Deceased in the course of employment as a Repair and Maintenance Technician I in the defendants Company under Section 17(1)(a)(c) and 19 of the Employee Compensation Act, 2010.
2. The sum of
N254,689,569.00 (Two Hundred and Fifty Four Million, Six Hundred and Eighty Nine Thousand, Five Hundred and Sixty Nine Naira) being 90% of the total monthly remuneration of PAUL AZUKA OJEI (Deceased) as a Repair and Maintenance Technician I in the defendants Company for the claimant’s life time.
3. AN ORDER of perpetual Injunction restraining the defendants whether by themselves, their servants, workers, receivers, agents or privies from selling, divesting their interest and transferring the 2nd and 3rd defendants to GENERAL ELECTRIC (GE) or in any manner whatsoever interfering with or dissipating the 2nd and 3rd defendants assets for the purpose of denying the claimant Employee Compensation benefits due to PAUL AZUKA OJEI (Deceased) as an employee of the defendants.
Reacting to the claims which was originally against three defendants, the 3rd Defendant who is now the 2nd Defendant, filed a statement of defence on the 25th of September, 2017 along with a list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be relied upon at trial.
Thereafter, the 1st and 2nd Defendant filed an amended statement of defence on the 17th of May, 2019along with list of witnesses, witness statement on oath and list of documents.
The Claimant then filed a reply to the statement of defence on the 28th of March, 2019.
Upon the foregoing, trial commenced in the said suit on the 28th of March, 2019 with the Claimant opening her case. The said Claimant was herself called as the sole witness as CW1 and she adopted her witness statements on oath marked as C1(a) and C1(b). Through the said CW1, 12 documents were tendered in evidence and admitted as exhibits C2 – C13 while exhibits C2 was admitted under protest.
Arising from the statement of fact and witness statement on oath, the case of the Claimant is that she is a widow and the wife of Paul Azuka Ojei who is deceased and was an employee of the defendants hence she is bringing this suit for herself and on behalf of dependants/beneficiaries of the Estate of Paul Azuka Ojei. Claimant averred that Paul Azuka Ojei was employed as a Repair and Maintenance Technician by the defendants by Contract of Employment dated 17/10/2010 and upon his employment he agreed to be bound by the Terms and Conditions of Employment for Staff of the defendants and other policies applicable to the West Africa Geomarket and other Geomarkets. She averred further that he worked satisfactorily and his salary rose from N246,995.47 to N336,891.90k per month as at July, 2011. Claimant further averred that on Friday 19/8/2011, the defendants through the Manager, Repair and Maintenance, Austin Sounyo and Ike Alexis requested Paul Azuka Ojei (Deceased) and Eleven other workers to report to work on Saturday and Sunday (Weekend work) to prepare equipment for use. He was required to work full day 20/8/2011 and 21/8/2011 however, after work on 21/8/2011, on his way to his house and in company of his colleagues, Vincent Edore and Anthony Omogbe, Paul Azuka Ojei (Deceased) was hit by a bullet upon alighting from a tricycle (Keke Napep) and he died instantly while the Defendants pretended that Paul Azuka Ojei did not die in the course of his employment.Although they gave the claimant the sum of
N500,000.00 (Five Hundred Thousand Naira) only as burial expenses, she was informed by the defendants’ servants/workers that the claimant is not entitled to any other payment as the defendants do not pay dead workers. Claimant avers that she is 32 years of age and a housewife of the deceased and also has a child for him while both of them were dependent on him before he passed away. She stated that she is entitled to 85% of the total monthly remuneration of Paul Azuka Ojei (Deceased) throughout her life time estimated to be at least in the next 70 years. The Claimant also averred that the defendants have concluded plans to divest themselves of the control, management and administration of the 2nd and 3rd(now 1st and 2nd) defendants by selling the 2nd and 3rd(now 1st and 2nd) defendants to another multinational company, General Electric Co. (GE) to avoid paying the employee compensation due to the claimant as the widow and children of Paul Azuka Ojei (Deceased) and if the defendants are allowed to sell the 2nd and 3rd(now 1st and 2nd) defendants to General Electric (GE), the claimant will lose the employee Compensation benefits due to PAUL AZUKA OJEI (Deceased).
Upon cross examination, CW1 posited that she is legally married to the deceased and that she married the deceased on the6th of January, 2011 and that the certificate (Exhibit C2) was given to her at the Catholic Church Asaba. She posited that the Deceased died on August 21, 2011 and that she saw his corpse at the Mortuary as she was not with him when he was hit by a bullet. She stated that on the said Sunday, she just had a baby and the company sent him a mail to come for a job. She spoke to him around 8pm and he said he was coming home because they were still working. But around 9:30pm someone called to let her know that he had been shot. She stated that she is 40years old but she was 32 when her husband died. She also stated that she has one signature and that she signed the witness statements on oath.
Upon the discharge of CW1, the Claimant closed her case while the Defendants opened theirs by calling one witness in person of Richard Babaoye as DW1 who adopted his witness statement on oath marked as D1. Through the said DW1, 4 documents were tendered and admitted in evidence under protest as Exhibit D2(a) – (l), D3(a)-(I), D4 (a) – (l) and D5(a) – (m).
Arising from the amended statement of defence and witness statement on oath, the case for the Defendantis that the 2nd defendant was the employer of Paul Azuka Ojei and denies that the 1st defendants is the employer of the said Paul Azuka Ojei nor does it coordinate, operate or administer the 2nd defendant as alleged by the claimant. The Defendants further aver that the death of Paul Azuka Ojei was an unfortunate incident which neither arose from or attributable to his employment with the 2nd defendant and that the support given to Paul Azuka Ojei’s family during his burial was an act of magnanimity on the part of the 2nd defendant. The Defendants added that upon his death, he was offered his terminal benefit through his Personal Representative. The Defendants also admitted that the 1st defendant has merged with the oil services arm of General Electric, a multinational Company incorporated in the United States of America as both Companies are based in the USA. However, the claimant will not lose any of her entitlements against the 2nd defendant, an independent Nigerian Company, provided such entitlements are genuine and provable with credible evidence in court. The Defendant concluded that the claim for compensation under the Employees Compensation Act of 2010 before this court is frivolous, incompetent, misconceived and this honourable court lacks the jurisdiction to entertain the said claims.
Upon cross examination of DW1, he posited that he is aware that the deceased was returning from the office the day of his demise and that the deceased was at the Slaughter Round-About when some bandits mistook him for someone and he was shot. DW1 confirmed that by Exhibit C9, the deceased and 11 others were invited by email from the office to work and stated that he has had cause to compute death benefits of a deceased employee and same can be received by the dependant but does not include compensation. He stated that the formula for computation is two weeks per year of service but it depends on the contract. DW1 also stated that there was a computation of deceased’s entitlement but same was not paid because of next of kin issue and posited that the N500,000 that was paid was burial assistance and it is stated in a documented policy and converted to naira. He added that he does not know the formula that ECA provides for payment of employee compensation. He stated that he doesn’t know how much the widows are entitled to as it is NSITF that does that. He also stated that it is not correct to say that the 1st Defendant administers its operation worldwide through geo market team and that he joined the Defendant in 2013 after the deceased died.
Upon discharge of DW1, the Defendants closed their case and matter was adjourned for adoption of final written address. Consequently, the Claimant filed their final written address on the 12thof July, 2019 and arising therefrom, counsel to the ClaimantGeorge T. Ogara Esq. formulated 2 issues for determination to wit:
1. Whether this Honourable Court has jurisdiction to entertain this Suit arising from and related to the entitlements of a deceased employee (PAUL AZUKA OJEI ).
2. Whether the death of PAUL AZUKA OJEI (deceased) occurred in the course of employment to entitle the claimant to the declaratory relief and compensation as a dependant of the deceased employee.
In arguing issue one, counsel posited that the general rule is that it is only the claims of the Plaintiff as endorsed on the Complaint and Statement of Facts that determines jurisdiction. He cited the case of EGE SHIPPING TRADING INDUSTRY LTD. v. TIGRIS INTERCONTINENTAL CORPORATION (1999) 14 N.W.L.R. (Part 337) page 91, paragraphs E-F ratio 3.
Counsel reproduced the claims in the instant suit and contended that the pertinent question before this court, is whether this Honourable Court have jurisdiction to hear and determine Suits arising from claims for entitlements of a deceased employee?
He thereon posited that the answer is in the affirmative and cited Section 254(c)(l)(k) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) and Section 7(1)(a)(i)(ii) of the National Industrial Court Act, 2006
He also cited Section 9(1), 12(1)(2)(3) and 17(1)(9) of the Employee Compensation Act, 2010 and submitted that the combined effect of section 254(C)(l)(k) of the Constitution of the Federal Republic 1999 (as amended), section 7(1)(a)(i)(ii) of the National Industrial Court Act, 2006, 9(1), 12(1)(2)(3) and 17(1) of the Employee Compensation Act, 2010 clearly shows that this Honourable Court has jurisdiction to hear and determine claims arising from and incidental to labour and employment of PAUL AZUKA OJEI (deceased) as an employee of the Defendants. Thus, the issues in the claims relates to the entitlements of the Dependants of the said PAUL AZUKA OJEI (deceased) as an employee.
Counsel posited that that there are two procedures provided by the Employee Compensation Act, 2010 through which the dependants of a deceased employee can utilize to obtain the entitlements of a deceased employee which are:
“(1) By Application to the Nigeria Social Insurance Trust Fund Board under part II, Sections 4-6 of the Employee Compensation Act.
(2) Filing of action in Court under part III, Section 12(1)(2)(3) of the Employee Compensation Act, 2010.
Counsel submitted that the two procedures stipulated above are mutually exclusive of each other and resort to one of the procedures makes the other procedure unavailable as the dependants of a deceased employee is put to election of the procedure to follow, either NSITF Board or the Court.
He added that the operative word in Section 12(1) of the Employee compensation Act (supra) is “in lieu” which Black’s Law Dictionary, 8th Edition, page 803 defined as“Instead of or in place of; in exchange; or exchange for”.
He also cited the case of AFRAB CHEM LIMITED v. PHARMACIST OWODUENYI (2014) LPELR – 23613 (CA).
Counsel further cited the case of CHARLES USHAE & 2 ORS. v. COMMISSIONER OF POLICE, CROSS RIVERS STATE COMMAND (2006) ALL F.W.L.R. Part 313 page 86 at page 169 paras. D-E and submitted that the Claimant in this case has a right to elect whether to commence an action at the National Industrial Court of Nigeria or claim compensation from the Nigeria Social Insurance Trust Fund Board.
He added that in the instant case, there is no iota of evidence to show that the Claimant claimed any entitlement from the NSITF Board. Thus, by the doctrine of election of remedies, the Claimant has elected to institute an action before this court and having instituted this action, the claimant can no longer claim any compensation from the Board of NSITF.
Counsel also referred to Order 10 and 11 of the rules of this court and posited that there is no provision in the Employee Compensation Act (supra) which specifically oust the jurisdiction of this Honourable Court to entertain claims of the Dependents of a deceased employee from the employer. He cited the case of JEPH V. NJIKONYE ESQ. v. MTN NIGERIA COMMUNICATIONS LTD. (2008) ALL F.W.L.R. Part 413 page 1343 at page 1368-1369.
In arguing issue two, counsel cited Section 7(1)(2)(a)(b)(c) of the Employee Compensation Act and submitted that from the provisions of the cited section, for the Claimant to successfully claim compensation under the Act, the Claimant must establish the following:
(i)That the deceased is an employee
(ii)That the Defendant was the employer of the deceased employee.
(iii)That the death arose out of or in course of employment.
(iv)That the Claimant is the Dependant of the deceased employee
(v)The Claimant must prove the income of the deceased employee at the time of his death.
Counsel cited the case of MRS. ELIZABETH ANIKE v. SHELL PETROLEUM DEV. CO. NIG. LTD. (2010) LPELR – 11878 (CA).
In addressing whether the Claimant is an employee, counsel cited Section 73 of the Employee Compensation Act and posited that in the instant case, the Claimant pleaded in paragraph 5 and 5(a) of the Statement of Facts that Paul Azuka Ojei (deceased) was employed by the Defendants as a warehouse/blend operator IV. He added that the Claimant also tendered EXHIBIT C5 in proof of the fact that Paul Azuka Ojei (deceased) was an employee of the Defendants and that the Defendants also admitted that the said Paul Azuka Ojei (deceased) was an employee of the Defendants at paragraph 15 of the amended Statement of Defence.
With regards to whether the defendants were the employers of the deceased employee, counsel repeated Section 73 of the Employee Compensation Act and submitted that EXHIBIT C5 clearly show that the Defendants entered into a contract of employment with PAUL AZUKA OJEI (deceased) and that the Defendants admitted being the employers of the deceased in paragraph 4 of the Amended Statement of Defence.
With regards to whether the death of the deceased employee arose out of and in the course of employment, counsel submitted that the phrase “arising out of employment” ordinarily means as a direct result of the employment of the deceased. He added that an injury or death arises out of an employee’s employment if its occurrence was connected to doing of what formed part of his employment, in otherwords, for an injury or death of an employee to be said to have arisen out of employment, there must be a link no matter how tiny or weak, between the injury or death and work. He cited Section 7(1) of the Employee’s Compensation Act.
Counsel also submitted that defendants admitted that the deceased employee died in the course of employment in paragraph 15 of the Amended Statement of Defence and added that facts admitted require no further proof, citing the cases of AFRAB CHEM LIMITED v. PHARMACIST OWODUENYI (2014) LPELR – 23613 (CA) and PARIS v. STEPNEY BOROUGH COUNCIL (1951) A.C. 367 at 384.
With regards to whether the claimant is the dependant of the deceased employee, counsel cited Section 17(1) and 73 of the Employee Compensation Act and submitted that the claimant is the wife of the deceased employee and has pleaded in paragraph 1(b) of the Statement of Facts that this Suit is brought in a representative capacity i.e. for herself and on behalf of the dependants/beneficiaries of the Estate of PAUL AZUKA OJEI (deceased).
He added that the Claimant pleaded in paragraphs 24, 25, (a)(b)(c)(d)(e), (a), 26, 27 of the Statement of Facts, the names and age of the dependants of the deceased employee and the fact that the said dependants were wholly dependant on the deceased employee.
Counsel also posited that the Defendants admitted that the deceased employee had dependants at paragraphs 9 and 10 of the Amended Statement of Defence and that what is admitted require no further proof.
With regards to whether the claimant must prove the income of the deceased employee at the time of his death, counsel submitted that the Employee Compensation Act provided a scale of compensation and formula for calculation of compensation in the event of death of an employee in the course of employment and the formula for the calculation of compensation for death of an employee is based on the salary of the deceased employee. Thus, the salary of the deceased employed must be proved for the purpose of the calculation of the compensation to be paid to the dependants.
Counsel cited Section 17(1)(a)(i)(ii)(iii)(iv), (b)(i)(ii)(iii), (c) of the Employee Compensation Act and submitted that the exact monthly remuneration of a deceased employee, and the numbers of dependants are factors to be taken into consideration in the determination of the proper and accurate sum due to the Claimant under the Employee Compensation Act.
Counsel added that the Claimant proved the last salary of the deceased and his dependant and by a communal reading of Section 17(1)(a)(i) and Section 19 of the Employee Compensation Act, the Claimant is entitled to 90% of the total monthly remuneration of the deceased employee for the Claimants lifetime.
Counsel argued further that this Honourable Court has jurisdiction to make binding declaration on the rights of parties as the Claimant claimed a solitary declaratory relief and this Court has powers to make binding declaration of the entitlement of the Claimant as a dependant of the deceased employee. He cited the cases of DR. MICHEAL AYO DANIYAN & ORS. v. ELKENA OBA IYAGUN & 3 ORS. (2002) F.W.L.R. part 120 page 1805 at page 1835 paras C and O. EWARAMI v. AFRICAN CONTINENTAL BANK LTD. (1976) 4 S.C.72 page 78 lines 5.
Counsel urged the court to resolve issue two in favour of the Claimant.
With regards to exhibits admitted under protest, counsel submitted that the general rule is that a piece of evidence is admissible by the Court if relevant and admissible. He cited the case of HOLLINGTON v. HEWTHERN (1943) K.B. 587, Section 6(a) of the Evidence Act (supra) and added that relevance to issues before the Court is the basis of admissibility.
He argued further that a relevant document must be pleaded before it becomes admissible and in the instant case, the Claimant pleaded Exhibits C2 to C12 in its Statement of Facts and each of the document is relevant and admissible and he urged the Court to so hold.
With regards to exhibits tendered by the Defendants which were admitted under protest, counsel posited that the defendants did not in any paragraph of the Amended Statement of Facts plead any of Exhibits D2 to D5 or the facts upon which the said Exhibits are admissible.
He added that the law is that in order that a party may be able to tender a document in evidence, there must have been in the pleading Statement of Facts in respect of that document. Thus, having not pleaded the said Exhibits D2-D5 in the Amended Statement of Defence, the Defendants, have failed to put the Claimant on Notice of what the Defendants intends to rely on in proving their defence. He cited the case of OBIMIAME BRICK & STONES NIG. LTD. v. ACB LTD. (1992) 3 SCNJ 1 at page 4.
Counsel posited that Exhibits D2-D5 tendered by the Defendants is to the effect that the Defendants paid money to NSITF, however, the pleading as to payment of money, the exact amount, the period of payment and on whose behalf were not pleaded by the Defendants but Exhibits D2 to D5 are exhibits to prove such unpleaded facts.
Counsel stated that where document or fact pertaining thereto is not pleaded, the document will not be acted upon by the Court. He cited the cases of ALLIED BANK v. AKUBUEZE (1997) 6 N.W.L.R. (Pt. 509) 374 and NNPC v. BOBINSON EDOBOR & ORS. (CA/L/360/99).
The Defendants on their part filed their final written address on the 15th of July, 2019
and arising therefrom, counsel to the Defendants, O.I. Nwanya Esq. formulated three issues for determination to wit:
- Whether the suit of the Claimant in this court is competent having regard to sections 2 (2), section 6, section 12 (1) and section 57 of the Employees Compensation Act 2010.
- Assuming, without in any way conceding that the claim of the Claimant was competently brought before this honourable court, has the Claimant, by virtue of the facts and evidence before the court or by any other means whatsoever, discharged the burden of proof placed upon him under the law such as would entitle him to the award of his claim.
- Whether the above suit is not statute-barred
In arguing issue one, Counsel Submitted that the claim of the Claimant in this suit before this court is clearly based on and brought pursuant to the Employee’s Compensation Act, 2010 as the heading of the Claimant’s originating processes exposes this glaring fact. He added that the reliefs sought by the Claimant are also in line with section 17 of the Employees’ Compensation Act and the court is bound by its records. He cited the case of NWOLE V. SKYE BANK (2018) LPELR-46542(CA).
Counsel cited Section 12(1) of the Employees Compensation Act and posited that there are two scenarios or options that are created under the said section.
He posited that the first Scenario/optionis that:
An employee or his dependants in the event of injury or death arising out of or in the course of employment may apply to the Nigeria Social Insurance Trust Fund Management Board (NSITF) for compensation as in section 6 of the Act. In this scenario, compensation is paid by NSITF to the employee or his dependants once the injury or death is work-related and without regard as to whether the circumstances that led to the injury or death is attributable to the employer or not.
He added that in this scenario/option, what is applied for is compensation and it is the NSITF not the employer that has the responsibility of paying the compensation and that is why the employer is required under section 33 of Act to make monthly contributions to the Fund created under the Act from which compensation is paid out, if and when necessary.
Counsel posited that the second Scenario/option is that:
An employee or his dependants in the event of injury or death arising out of and in the course of employment may institute an action in damages (in the regular court) against the employer for breach of the employer’s duty of care to the employee or for any other related tort. In this scenario, just as in every other civil action in the court, before damages can be awarded, the employee or his dependants must discharge their evidential burden of proving that the employer is in breach of his duty of care to the employee.
Counsel posited further that in this scenario unlike the first scenario, (1) an action is taken out in (the regular court) by the employee against the employer for “damages”and not for compensation. (2) it is the employer and not the NSITF that pays damages if the employee or his dependants are successful, (3) damages is only awarded by the ‘court’ to the employee or his dependants if and only if the employee proves that the injury or death is work-related and that the circumstances that led to the injury or death is attributable to the employer i.e. that the employer is in breach of his duty of care or negligent as it relates to the employee.
Counsel added that the distinction can also be gleaned from section 12 (3) of the ECA and that the claim for compensation under the Act by the claimant in this suit instead of being made to the NSITF is incompetent, defective and an abuse of the processes of court.
Counsel also cited Section 2 (2), Section 6 and Section 57 of the ECA and Submitted that the literal rule of interpretation of statute is to the effect that the plain and ordinary meaning of words used in drafting the sections and provisions of the statute must be ascribed to it in the interpretation and construction of the statute without modification unless the ascription of such meaning will create an absurd situation. He cited the cases of Fawehinmi v. I.G.P. (2000) 7 NWLR (pt. 665) pg. 481 and Awolowo v. Shagari (1979) 6-9 SC 51.
Counsel added that that where a statute lays down the procedure to be followed in enforcing a right or remedy, that procedure must be strictly followed if the right or remedy is to be enjoyed. He cited the case of AHMED V. ABU & ANOR (2016) LPELR-40261(CA).
Counsel argued further that a suit instituted in contravention of a statutory procedure is incompetent, defective, null and void and of no effect whatsoever and will be struck out as such as the jurisdiction of a court to entertain a matter before it is a very important consideration in the process of litigation. He cited the case of MADUKOLU & ORS v. NKEMDILIM (1962) LPELR-24023(SC)
Counsel also posited that that a combined reading of section 254C (1) (b) of the 1999 Constitution (as amended) and section 55 (4) of the Employees’ Compensation Act, 2010 is to the effect that the National Industrial Court possesses an appellate jurisdiction to entertain appeals from the Nigeria Social Insurance Trust Fund Management Board in matters arising from, connected with and or relating to the Employees’ Compensation Act, 2010.
Counsel also argued that that the mere fact that an employee died while working for an employer does not ipso facto entitle the employee to payment of compensation under the Employees Compensation Act.
In arguing issue two, counsel posited that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. He cited Sections 131(1) and 132 of the Evidence Act, 2011.
Counsel also cited Section 12 (1) of the ECA and submitted thereon that the purport of the section is that a claim for compensation (where the aggrieved is not required to prove the fault or breach of duty of the employer) is at the instance of NSITF Management Board while an action in damages (where the aggrieved is required to prove the fault or breach of duty of the employer) is in the regular courts.
Counsel then added that where an interested person choses to initiate an action in damages in the regular court instead of claiming for compensation from the NSITF Management Board, that person must be able to prove that (1) the employer owes a duty of care to the employee (2) that there has been a breach of that duty by the employer; and (3) Damages.
He added that the Claimant cannot be entitled to damages where she has failed to prove a breach of duty of care. He cited the case of NB PLC V. AUDU (2009) LPELR-8863(CA) and contended that in any event, the Claimant is not claiming any damages from the court in this suit and the court is not a Father Christmas.
In arguing issue three, counsel posited that the right of action in a civil suit is not indefinite and the law places a limitation of time within which an aggrieved party can approach the court for redress in civil suits. He added that where the time allotted for a party to take out an action in civil matters has elapsed, the court will lack the requisite jurisdiction to entertain such action and such action as in our instant case will be liable to be dismissed. He cited the case of TOTAL E & P (NIG) LTD. V. UMAH & ORS (2019) LPELR-47263 (CA).
Counsel also contended that in the course of trial and during cross examination the Claimant stated that she made and signed two statements on oath which she adopted as her evidence in support of this suit while she also confirmed that she has only one signature. Counsel posited that it is however on record that the two statements allegedly made, signed and adopted by the Claimant bears two radically different signatures from the Claimant’s actual signature which was extracted during her cross examination and when this is compared with the signatures on her two statements, it can be seen to be grossly inconsistent with them. Counsel submitted that her adoption of the two statements notwithstanding, the making of the statements or at least one of them cannot lawfully be ascribed to the Claimant. He cited Section 101 of the Evidence Act.
With regards to exhibits tendered and admitted through the CW1, counsel posited that the entire documents tendered by the Claimant in evidence are photocopies. He cited sections 86 & 89 (C) of the Evidence Act and submitted that the failure of the Claimant to lay the requisite foundation before tendering the said documents renders them incompetent and therefore inadmissible under the law.
In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for determination by this court is to wit:
Whether or not upon a consideration of the provisions of the Employees’ Compensation Act, the reliefs sought by Claimant can be granted by this court.
Before resolving the sole issue, it is expedient to address the status of the exhibits admitted under protest in the course of trial in this suit.
With regards to Exhibit C3 – C12 which were tendered through CW1, counsel to the Defendants contended that the documents are photocopies and no foundation was laid in tendering them. He cited sections 86 & 89 (C) of the Evidence Act to contend that the documents are inadmissible.
Counsel to the Claimant on his part contended thatrelevance to the issues before the court is the basis of admissibility and that the documents were pleaded in the statement of fact.
Consequently, I have taken a look at Exhibit C3 – C12 and find rightly so that the said documents were pleaded in the Claimant’s list of documents with each of the documents referred to in the statement of fact. All the documents are considered relevant having been connected to the fact in issue as it relates to the employment of the deceased with the Defendants. However, with regards to the fact that they are photocopies, I reckon that by the general provision of the Evidence Act, an original document is legally regarded as primary evidence while the photocopy tendered is the secondary. In that light, section 85 of the Evidence Act provides that the contents of documents may be proved either by primary or by secondary evidence. While section 89 states the circumstance under which the secondary documents can be tendered, the Defendant in the instant case did not lay foundation to establish the circumstance which impels them to tender the photocopy notwithstanding that same was tendered through the adverse party, the failure to lay foundation is however not fatal to admissibility particularly I view of the relevancy of the said documents and same are accordingly admitted in evidence.
With regards to exhibits D2(a) – (l), D3(a)-(I), D4 (a) – (l) and D5(a) – (m) which were tendered and admitted through DW1, counsel to the Claimant contended that the said documents were not pleaded in any of the paragraphs of the statement of defence and they were not frontloaded.
Counsel to the Defendants in response contended that what guides admissibility is relevance.
In view of the foregoing contention, I have taken a look at the said exhibits and find that same are receipts of payments made by the 2nd Defendant to NSITF between the year 2015 and 2018. I have also taken a look at the statement of fact and witness statement on oath of the DW1 through whom the documents were tendered. Although, counsel to the Defendant stated that the receipts are pleaded in paragraph 18(2) and 23(2) and (3) however, paragraph 18 of the statement of defence and witness statement on oath does not contain any fact relating to receipts issued by NSITF for any transaction whatsoever. Also, I find that the amended statement of defence does not have paragraph 23 while the witness statement on oath which has paragraph 23 says nothing in relation to NSITF receipts.
Consequent upon the foregoing, it is more than clear that the said documents were not pleaded and they were not on the original list of documents tendered before this court. In view of the foregoing, it is trite that facts not pleaded goes to no issue and evidence led in that light ought to be discountenanced. The court reiterated this in the case of APGA & ANOR. V. DANTONG & ORS.(2011) LPELR-9233(CA) when the court held that:
"It is trite law that any evidence led on facts not pleaded would be discountenanced as it goes to no issue. See the case of Hashidu v. Goje (2003) 15 NWLR (Pt. 483) 325 at 379-381." Per OGUNBIYI, J.C.A. (P. 28, paras. A-B)
In addition to the foregoing, it must be reckoned that if the court is to determine whether a document is relevant for purpose of admissibility, such document must first be pleaded as the court cannot assume its relevance without reference to same in one way or another in the pleadings before the court. The court inSTATOIL NIG. LTD. V. INDUCON (NIG.) LTD. & ANOR.(2012) LPELR-7955(CA) posited that “A document is relevant only when it has been pleaded”.Per OGUNWUMIJU, J.C.A. (Pp. 67-68, paras. A-C)
Consequent upon the foregoing, the processes filed by the Defendants are bereft of any fact relating to NSITF receipts and consequently, the relevance of the said receipts cannot be determined for the purpose of admissibility. therefore, the failure to plead the said documents makes them irrelevant and consequently inadmissible. The said exhibits D2(a) – (l), D3(a)-(I), D4 (a) – (l) and D5(a) – (m) are hereby rejected in evidence and expunged.
That said, I then turn to the sole issue before this court for the determination of this suit. The said issue which is ‘Whether or not upon a consideration of the provisions of the Employees’ Compensation Act, the reliefs sought by the Claimant can be granted by this court’, is formulated firstly in view of the fact that the Claimant headed the processes filed in this suit to be ‘in the matter of Employee Compensation in respect of Paul Azuka Ojei (deceased) under the Employees’ Compensation Act, 2010’. Also, the reliefs sought by the Claimant states clearly that the Claimant wants the Court to declares that she is entitled to compensation for the death of Paul Azuka Ojei under section 17(1) (a) and (c) and 19 of the Employees’ Compensation Act, 2010, followed by an order for the payment of the said entitlement.
The sole issue is formulated secondly in view of the fact that the Claimant after heading her process to be under the Employees’ Compensation Act and seeking a relief under specific provisions of the same Act, contends through her counsel that the Act gives her two options which are to either apply to the NSITF under sections 4-6 of the Act or to file an action in court under section 12 (1)(2)(3) of the same Act and that the Claimant upon being put on election has chosen to bring an action in court.
Thirdly, the sole issue is formulated in view of the contention of the Defendants’ position that the claim for compensation by the Claimant ought to be directed to the Nigeria Social Insurance Trust Fund Management Board as it is the Board that enforces the Act; that the claim ought to have been made within one year, making the present claim statute barred and that this court lacks jurisdiction to entertain the claim as presently constituted.
In view of the foregoing, I find it apposite to start with the contention as to whether this court has the requisite jurisdiction to entertain matters bordering on employee compensation. In this regard, there is no gainsaying that one of the requirements for a court to be clothed with jurisdiction is if the subject matter comes within the jurisdiction of a court. The court in Fashogbon v. Adeogun (No. 1) (2007) All FWLR (Pt. 396) 661 at 678 Paras. B - E (CA) posited that:
"The elements or ingredients for the exercise of jurisdiction by a court include the requirements that:
i. The subject matter of the case is within the jurisdiction of the court and there is no feature in the case which prevents the court from exercising its jurisdiction;
ii. It is properly constituted as regards numbers and qualification of members of the Bench, and no member is disqualified for one reason or the other;
iii. The case before the court is initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
The three conditions stated above must co-exist before the court can be vested or clothed with proper competence and jurisdiction. See Military Administrator, Benue State v. Abayilo (2001) FWLR (Pt. 45) 602; Attorney-General, Anambra State v. Attorney-General, Federation (1993) 6 NWLR (Pt. 302) 692; Ishola v. Ajiboye (1994) 19 LRCN 35; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350." Per Aboki, JCA.
In view of the foregoing, I have taken a look at the provision of the Constitution of Federal Republic of Nigeria, which is the grund norm and at the same time the highest in hierarchy of all laws in Nigeria and that which establishes the National Industrial Court of Nigeria under section 254A. By section 254C(1) (c), the Constitution provides that:
(1)Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:
c. relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees' Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws. (underline mine).
The words of the foregoing provision are clear and unambiguous and it is without doubt that this court is clothed with exclusive originaljurisdiction to entertain matters relating to, connected with or arising from Employees' Compensation Act.
That on the one hand, on the other hand, there must be no feature in the case which prevents the court from exercising its jurisdiction. It is this second wing of the condition that requires addressing other factors leading to the formulation of the sole issue for determination and same are poignantly in respect of the Claims made by the Claimant.
For sake of clarity, I must state that while this Court has jurisdiction to entertain civil causes and matters related to, connected with or arising from Employees’ Compensation Act, the Act makes specific provision in relation to claims for compensation which the Claimant is seeking and there are specific procedures laid down in the said provision for the claim of compensation if indeed the Claimant expects to get compensation pursuant to the Act.
In this wise, I find it apposite to state that the intention of the lawmakers at the point of enacting the Employees’ Compensation Act as found in the long title of the Act was to “make provisions for compensations for any death, injury, disease or disability arising out of or in the course of employment; and for related matters”.
Section 1(a) of the Act also buttressed the foregoing intention by stating the objective of the Act including to:provide for an open and fair system of guaranteed and adequate compensation for all employees or their dependants for any death, injury, disease or disability arising out of or in the course of employment.
In the instant case, the Claimant is claiming for compensation on behalf of herself and dependants of her deceased husband who according to her died on the 21st of August, 2011 while returning from work.
Consequently, the Claimant brought the claim for compensation under the Act, without recourse to the Nigeria Social Insurance Trust Fund (NSITF) because she considers she has the option to do so. Despite her choice of not applying to the NSITF, the computation of her claim is predicated on the computation stipulated in the Employees’ Compensation Act which is a monthly pay of 85% of N336,891.00 being her deceased husband’s last salary at N303,201.90 multiplied by 70 years to earn the total sum of N254,689,590.00.
In addition, through her claims, she wants the court to declare that she is entitled to compensation and that the foregoing total sum be paid to her. She did not specifically state through her second relief that she wants the employer i.e. the Defendants to pay the sum, but she stated through her third and last relief to the effect that she wants the court to make an order of perpetual injunction to restrain the Defendants from dissipating their assets so as not to deny the Claimant of the compensation. In other words, the Claimant intends that the Defendants should pay her the sum of N254,689,590.00 as employee compensation pursuant to the Act.
It is in view of the foregoing that the provision of the Employees’ Compensation Act in relation to payment of compensation becomes paramount in order to determine whether the court can order the Defendants to make payment for compensation to the Claimant pursuant to the provisions of the Act.
Having stated the objective of the Employee Compensation Act, I take cognizance of section 2(2) of the same Act which provides that:
“The Nigeria Social Insurance Trust Fund Management Board (in this Act referred to as "the Board") shall have power to implement this Act and the Fund established under section 56 of this Act”.
The said, section 56 stipulates that:
“There is established the Employees' Compensation Fund (in this act referred to as "the fund") into which shall be credited all moneys, funds or contributions by employers for adequate compensation to employees or their dependents for any death, injury, disability or disease arising out of or in the course of employment”.
The foregoing provisions are clear and unambiguous and deserves no other rule of interpretation other than the literal rule of interpretation which is to the effect that where the words of a statute are clear and unambiguous, the court must give effect to same. The court in ANIMASHAUN & ANOR v. OGUNDIMU & ORS (2015) LPELR-25979(CA) held that:
“The cardinal principle in the interpretation of statutes is that the meaning of a statute or legislation must be derived from the plain and unambiguous expressions or words used therein rather than from any notion that may be entertained as to what is just and expedient. The literal rule of interpretation is always preferable unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole”…Per IYIZOBA, J.C.A. (Pp. 8-9, Paras. B-A).
Applying the literal rule of interpretation, the foregoing provision suggests that if a claim for compensation is to be effected and implemented under the Employees’ Compensation Act, it is the Nigeria Social Insurance Trust Fund (NSITF) Management Board that shall have the power to implement the claim. Also, the effect of section 56 is that moneys to be paid as compensation under the said Act must come from the Fund established under the Act.
To buttress the forgoing, the Act stipulates the functions of the said NSITF Management Board under the same Act as section 32 (d) states one of the said functions thus:
“The Board shall:
(d) make all payments of the various compensation or benefits to any person entitled to such compensation or benefit and make all disbursements required to be made out of the Fund established under this Act;”
The effect of the foregoing clearly indicates that all payments to be made from the Fund established under the Act are to be made by the Management Board of the NSITF.
In the instant case, the compensation sought by the Claimant is under section 17(1) (a) and (c) and section 19 as can be clearly seen in the Claimant’s relief 2.
I find it apposite to reproduce the said sections.
Section 17 (1) (a) (c)
(1)Where death results from the injury of an employee, compensation shall be paid to the dependants of the deceased:
(a)where the deceased employee leaves dependants wholly dependent on his earnings a widow or widower-
(i) and two or more children, a monthly payment of a sum equal to 90 per cent of the total monthly remuneration of the employee as at the date of death,
(ii) and one child, a monthly payment of a sum equal to 85 per cent of the total monthly remuneration of the deceased employee as at the date of death,
(iii) without a child who, at the date of death of the employee, is 50 years of age or above, or is an invalid spouse, a monthly payment of a sum equal to 60 per cent of the total monthly remuneration of the deceased employee, and
(iv) who, at the date of the death of the employee is not an invalid spouse, is under the age of 50 years and has no dependent children; a monthly payment of a sum that is equal to the product of the percentage determined by subtracting 1 per cent from 60 per cent for each year for which the age of the dependant, at the date of death of the employee, is under the age of 50 years, and provided that the total percentage shall not be less than 30 Per cent ;
(c) monthly payments to eligible children under this Act shall be made to children up to the age of 21 or until they complete undergraduate studies, whichever comes first;
The Board shall make monthly payments under this Act for the life of the person to whom the payment is to be made, unless a shorter period applies under the provisions of this Act, or as the Board may, from time to time by regulations, specify.
Arising from the foregoing, it is crystal clear that the Act states that it is the Management Board of the NSITF that should make payments based on the computation stated in section 17of the Act and the said payment is to be made monthly for the life of the person entitled. The Act nowhere mentions that an employer should make the payment.
That said, I must posit that for a person to be entitled to such payment, the person must have complied with the procedure laid down in section 4,5,6 of the Act. While section 4 requires the employee or dependant to give notification of the injury or death to the employer, section 5 then obligates the employer in the case of death, to immediately, report the death of an employee arising out of and in the course of employment to the Board and to the local representative of the Board.Section 6 then requires the applicant to fill a form in application for compensation which shall be made on the form prescribed by the Board and shall be signed by the employee or the deceased employee's dependant and unless an application is filed or a determination is made within one year after the date of death, no compensation shall be payable.
From the foregoing, I must state that section 4,5, 6 are not distinct or segregated parts of the Act. Rather, they are preconditions to being entitled to compensation under the Act. That is, conditions precedent to the application of the computations stated in section 17 and the monthly payment prescribed in section 19.
That said, I must state that I am not oblivious of the argument of counsel to the Claimant to the effect that section 4,5,6 of the Act creates one mode of obtaining compensation while section 12 creates another mode as an option for the Claimant. It is this contention that impels this court to reproduce and consider the provision of section 12 (1) and (3) of the Employees’ Compensation Act thus:
(1)“The provisions of this Act are in lieu of any right of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which an employee, dependant or member of the family of the employee is or may be entitled against the employer of the employee, or against any employer within the scope of this Act, or against any employee, in respect of any death, injury or disability arising out of and in the course of employment and where no action in respect of it lies”.
(3)”Where the cause of death, injury or disability of an employee is such that an action lies against some person, other than an employer or employee, the injured employee or deceased employee's dependant may claim compensation or may bring an action and if the employee or dependant elects to claim compensation, the employee or dependant shall do so within 6 months of the occurrence of the injury or death or any longer period, as the Board may, from time to time, determine and an election by the employee or dependant to bring an action in court shall be a bar to claim compensation from the Fund in respect of such injury, disability or death”.
Upon a careful reading of the foregoing, particularly subsection (1), what the provision clearly states is that an employee may choose to seek compensation under the Employees’ Compensation Act as a whole (not a section or portion of it) being a statutory provision for compensation or the employee may seek compensation under any right of action, under any other statute, under an action for breach of duty of care or any other cause of action (which can be regarded as common law action). But once the employee chooses, he or she is precluded from exercising the other. In other words, if an employee chooses to take an action in court for breach of duty of care, in which case he would be seeking for damages, which is another form of compensation, such employee cannot apply for compensation under the Employees’ Compensation Act anymore.
The meaning of ‘in lieu of’ according to Black’s Law Dictionary, Eight edition at page 803 is “instead of or in place of, in exchange or return for”. This suggests that an employee must choose to exercise his right within the provisions of this Act or outside this Act. If such employee is to seek compensation within the provision of this Act then he or she must comply with the provision of this Act in its entirety. The employee cannot institute an action in common law for breach of duty of care and at the same time demand for the payment of compensation as computed under the Employee Compensation Act. An employee cannot choose to be here and there, rather he or she is to be either here or there.
In the instant case, the Claim of the Claimant is neither here, nor there as it is not a claim for breach of duty of care under common law or breach of a term under the contract of employment which would make the employer liable in damages if proved and as it is not a claim to compel the Board of NSITF to pay compensation to the Claimant from the Fund established under the Employees’ Compensation Act upon proving that she has complied with the requirements for payment.
Having said that, I must also clarify the misconception with regards to right of action in court arising from the Employees’ Compensation Act. In this wise, where an employee or the dependant of an employee have applied for compensation under the Employees’ Compensation Act and he or she is not paid the said compensation by the Board of NSITF, such employee or dependant can maintain an action in court against the Board. Also, if the employee or dependants notifies the employer of injury or death and the employer fails to report to the Board of NSITF for the purpose of payment of compensation, then the employee or Dependant can institute an action before this court against such employer under the Act for non-compliance and this Court shall be possessed of jurisdiction to entertain same. It is for such purposes that the National Industrial Court have been clothed with jurisdiction not for the purpose of coming through the backdoor for compensations that is exclusively available through the front doors of NSITF but which have been legitimately claimed and refused. In the instant case, the Claimant did not claim for compensation from the NSITF, rather, what the Claimant is seeking is for the court to command an act which is not contemplated by the entire provision of the Employees’ Compensation Act. That is, to compel the Defendants as the employer of the deceased employee to make payment for a compensation to the Claimant as computed in the Act, an obligation that is of the Board of NSITF to fulfill.
In the light of the foregoing, the sole issue is resolved to the effect that the Claimant’s claim is brought pursuant to the Employees’ Compensation Act and upon the consideration of the provisions of the said Act, the claim of the Claimant cannotbe granted by this court as the Defendant is not the appropriate body empowered to make payment of compensation under the Employees’ Compensation Act.
Consequently, there is no basis to evaluate the evidence before court to determine proof of claims and also, the contentions and arguments with respect to limitation of action and whether the employee died in the course of employment are all discountenanced as the said issues will not change or have an impact on the outcome of this suit which is that the reliefs sought by the Claimant cannot be granted and an attempt to address them would only be an academic exercise. In this regard, the court in AGBAJE v. INEC & ORS(2015) LPELR-25651(CA) posited that:
"A Court cannot engage in the vain pursuit of determining a question that is of no relevance to the outcome of the case before it, merely because it is intellectually or academically attractive or that such engagement helps to develop the theory of the subject. It is settled law that it is not part of the adjudicatory functions of a Court to do so”… Per AGIM, J.C.A. (Pp. 32-33, Paras. B-B)
In the final analysis, the reliefs sought by the Claimant cannot be granted, same having been brought under a wrong process and outside the contemplation of the provisions of the Employees’ Compensation Act. The claims are accordingly struck out.
Judgment is accordingly entered.
I make no order as to cost.
HON. JUSTICE Z. M. BASHIR