IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: FRIDAY MAY 21, 2021 SUIT NO.NICN/EN/759/2014
- ARAB CONTRACTORS OAO NIG LTD DEFENDANTS
- ENGR. LATEEF ABDUDUL
- E.N. NWOYE WITH THE BRIEF OF O.A.U. ONYEAMA – FOR THE CLAIMANT.
- V.C. ONUIGBO WITH P.M. NDUBISI – FOR THE DEFENDANTS.
COMPLAINT commenced this suit July 4, 2014. The claimant filed Amended Statement of Fact on June 23, 2015, which was deemed properly filed and served June 28, 2016. He equally filed Further Amended Statement of Facts October 23, 2019, which application in respect was not moved. The learned counsel to the claimant used the Amended Statement of Defence in his final written address. The reliefs claimed in the Amended Statement of Fact are reproduced as follows:
- A declaration that the defendants owe the Claimant a duty of care which they failed to uphold.
- A declaration that the life threatening injury (Cracked skull, Brain injury/damage, Psychological distress, multiple fractures, shock and pains) suffered by the claimant was as a result of the breach of duty of care and negligent attitude of the defendants.
- A declaration that the 2nd defendant committed a Tort of trespass to person specifically Civil Assault and Battery.
- Special damages of N5,000,000 (Five Million naira only) being cost of litigation and appurtenant expenses.
- N500,000,000 (Five hundred Million naira only) being General damages for Cracked Skull, brain injury/damage, Psychological distress, shock, pains and sufferings, for negligence, failure to provide the necessary duty of care to the Claimant, and for Tort of trespass to the person of the Claimant.
In reaction to the above, the defendants stuck to their earlier Statement of Defence filed October 13, 2014. The claimant did no file reply pleadings, though, stated incorrectly in his written address that, he did – see paragraph 1.10 thereof. But he failed to indicate the date this was filed, showing clearly that; he actually did not file a reply. That is about the focal processes at this point. I move to give summaries of the cases made by the parties in their pleadings.
SUMMARY OF CASES MADE BY THE PARTIES
A: Claimant’s Story
The claimant pleaded that he was an employee of the 1st defendant and; that, the 2nd defendant was his supervisor and that; he was on duty on 23rd January 2014, at construction site, under the 2nd defendant. He pleaded further that, on the fateful day, another worker had come to the 3rd floor where he and another worker, named Mr. Jegede, were, to take a plank and Mr. Jegede stopped him and the Project Manager [PM] furiously came up, probably on the messenger’s report to him that he was prevented from taking the plank, and that, the PM defendant met him alone because, Mr. Jegede had gone to the extreme end of the floor at that moment, and thought that he was the one who prevented the boy from taking the plank and thereby visited his anger on him, by sacking him. He pleaded that the PM defendant refused to listen to his explanation and instead called his immediate supervisor on phone to come up. He pleaded that he protested the manner of his dismissal for committing no offence and started walking down to get paid off, but was just at the 1st staircase when the 2nd defendant [his immediate supervisor], rushing upstairs, met him at the staircase and ordered him to go back because, he wanted to take his picture, but when he said he should let him off, the 2nd defendant held him by the shirt and dragged him upstairs to the 3rd floor, where there was more illumination to take picture, ordered him to remove his helmet so that he could take the picture of his face and; that, when he insisted he be left to go, the 2nd defendant became angry, pushed him on the shoulder and he staggered, missed his steps and fell off the floor to the ground and passed out, foaming in the mouth. He pleaded that while falling he fell on makeshift railings made of weak woods, which could not stop the fall.
The claimant pleaded further that, he only regained slight consciousness at the hospital after several days with pains on all his bodies and bandages all over with a loss tooth. He pleaded that his head landed on a nail on a plank, which cracked and perforated his skull and made him to be intermittently unstable and uncoordinated. The claimant pleaded that, the defendants negligently left these used wooden bracers with nails on the ground of the construction sites to constitute hazards, whereas, they made sure those around their site office were promptly and constantly evacuated. He pleaded that, Mr. Andrew Anoti saw all what happened and started shouting in shock that the expatriate supervisor has killed somebody, but Mr. Anoti was threatened to keep quiet or be sacked and he insisted he would not keep quiet because, the supervisor was found of beating and bullying workers. The claimant pleaded that; as a result, after two weeks Mr. Anoti was sacked. The claimant also pleaded that; he ran berserk at the hospital later, as a result of the brain injury and had to be tranquilized.
The claimant further pleaded that; the defendants put pressure on the hospital to discharge him untimely when he had not recovered and he was discharged and abandoned to his parents and could no longer read or use his limbs. He pleaded that the workers of the 1st defendant went on strike as a result of this incident. The claimant further pleaded that; the defendants failed to provide the site with neither iron railings nor nets nor provided him with safety belt, the standard practice that could have prevented the falling off from high altitude. The claimant pleaded that, his sister made report of the incident to the police, but the police failed to effect arrest, insisting that he must be brought in his unconscious state to make statement. The claimant further pleaded that; the ambulance that used to pick him for check-ups became erratic making his parents to sell their land to raise money to treat him locally. He pleaded that the 2nd defendant has not visited him or his family since the incident till date and that, the 1st defendant had only given his family N10,000 ever since. He pleaded further that; the effect of the injuries sustained still make him to visit hospitals and continues to affect his mental health and stamina; and that, the letter of his family to the 1st defendant to state her plans for him was not replied, while the 1st defendant replied the letter by his solicitor accusing him of extortion.
The claimant further pleaded that, the 2nd defendant, being very temperamental and with ugly records of assaulting workers at dangerous places, ought not to have been employed and that, as such, the 1st defendant was negligent. The claimant pleaded that; when he was yet to fully recover, the 1st defendant stopped his salary since May 2014, four months after the incident. The claimant pleaded that; the lost tooth has defaced him, while he suffered psychological and emotional traumas. The claimant pleaded that; the 1st defendant was negligent in not providing the site with protective nets to prevent the fall of workers or hazardous materials. Therefore, the claimant claimed the reliefs already reproduced. The stage moves to the Statement of Defence.
B: Defendants’ Counter-Story
The defendants, in their joint Statement of Defence counterpleaded that; the 2nd defendant [Mr. Lateef Abdul], being on leave, was not on site the date of the incident, but that, it was Mr. Ayman Hassan Haled that was on site, and whom the claimant had encounter with. They counterpleaded further that, Mr. Ayman resorted to the use of camera because; being new, he did not know the workers by names, and had to take the pictures of loiterers to show to attendance record keeper for identification and surcharge; and that, it was while trying to take the picture of the claimant, to whom he and the PM had been attracted by his shouts while descending the staircase the fateful that, the claimant fell off in an attempt to dodge being photographed as a loiterer. They counterpleaded further that; this accident took place at ground floor and not the 3rd floor. They counterpleaded that; the claimant was not pushed; and that, immediately this accident took place, the claimant was taken in the office ambulance to St. Augustine Hospital and later to Niger Foundation Hospital and; that, there was no injury apparent on the claimant’s body nor bleedings and; that, he was conscious all through, while he coherently responded to all conversations and expressions of sympathies extended to him.
The defendants also counterpleaded that, the claimant did not land on nail nor suffered any psychological trauma and; that, wooden bracers are normal sights on construction venues, only removed at the cessation of constructions and; that, they had nothing to do with the incident in question. They counterpleaded that; Andrew Anoti is a suborned witness, who did not witness the accident and; that, Anoti did not have any interaction with Mr. Ekai as alleged. They also counterpleaded that; the 2nd defendant is not in the habit of bullying workers. The defendants counterpleaded that; crowds were attracted to the scene because of maliciously distorted news spread about on the incident. The defendants counterpleaded that; the claimant had no injury that could have led to mental and speech imbalances.
The defendants counterpleaded that; Mr. Anoti’s employment was terminated because, his services were no longer required as carpentry works had eased out on the site and; that, there was no incident of the claimant going berserk at the hospital and that, none of his medical certificates proved all the medical conditions pleaded. The defendants further counterpleaded that, the strike on this issue was a product of misinformation and; that, the defendants provided appropriate safety gears for their workers. The defendants also counterpleaded that, they did not dump the claimant as a staff was assigned to take him to the hospital on his checkup days and; that, it was the claimant who was rather unavailable on occasions when he would claim to be playing football or in the pub or at times totally unreachable. They further counterpleaded that; officers of the defendants visited the claimant in the hospital.
The defendants counterpleaded further that, nail did not pierce the head of the claimant and that the 2nd defendant, who was on leave at the material time, never molested the claimant nor threatened to deal with him. The defendant now counterpleaded that, the letter from their lawyer erred in stating that Mr. Lateef Abdul was on site the day of the incident as the site supervisor instead of saying he was on leave. The defendants counterpleaded that; the claimant’s salary was stopped in June 2014 because he absconded. They also counterpleaded that, they were not negligent at all; and finally urged the Court to dismiss the suit. That is the end of the pleadings. I move to summary of the proceedings before the Court.
PROCEEDINGS AND EVIDENCE
The matter first came up before His Lordship, Hon. Justice A. Ibrahim J. August 1, 2014. On November 17, 2014, the Court, Coram Ibrahim J. granted the prayers to regularise the defence processes. On April 21, 2015, the Court, Coram Ibrahim J. also granted the defence prayer to file additional witness statement on oath of Mr. Ayman Hassan. The case was opened this date too, with Amarachi Edeh, who testified as CW1 on the adoption of the written deposition. It came up subsequently about 15 more times for continuation of trial before His Lordship Ibrahim J., the last date being January 26, 2018, when it was adjourned for adoption of final written addresses. That was the situation when it came before me for the first time April 8, 2019, His Lordship, Ibrahim J., having unfortunately died in active duty.
Trial commenced de novo before me on January 22, 2020 with Mrs. Amarachi Edeh-Okeke as CW1. CW1 adopted her two written depositions; and the matter was adjourned for ruling on objection to admissibility of the records of proceedings of the previous trial. CW1 tendered eight documents and they were marked CWA to CWH respectively. The previous written address was rejected and marked accordingly. Thereafter, the trial proceeded to cross-examination of CW1.
Under cross-examination, CW1 admitted that, she signed the written deposition in her counsel’s office and; that, she was called to come and collect her brother’s clothes because he fell and that, she was with her brother when he was taken to the first hospital. CW1 admitted she was not at the scene when the accident happened, but that, she saw some of the things that happened and; that, she saw her brother foaming at the mouth. She said she did not see where her brother fell from immediately. She admitted that, not being medical personnel, she did not understand medical jargons, but that; the Dr. in the second hospital explained these jargons to her. She admitted the 1st defendant paid some of the medical bills at the second hospital and thereafter insisted against medical advice that her brother be discharged when he had not healed. She said the 1st defendant’s General Manager seized all the reports issued at the second hospital. She admitted paying N1,500 to obtain the medical report when the matter started afresh. She admitted that, the medical report indicated that her brother fell from a storey and presented with neck and waist pains. She admitted too, that, the report indicated that her brother presented with minor disk prolapses associated with psychological distress.
CW1 said the other health conditions she mentioned in her written deposition are not in the medical report because, the defendants teamed with the doctors and they wrote what they liked. She said she did not know that minor disk prolapses refer to minor back pains that could go without treatment. In reaction to the question that minor disk prolapses could be caused by carrying heavy loads and others, CW1 said it could be caused by accident; and her brother’s problems came as a result of the fall. She said she did not know what could cause psychological distress, but all she knew was her brother ran berserk in the 2nd hospital [Niger Foundation Hospital] and doctor asked her whether her family had history of mental problem. She said they conducted tests after her brother ran berserk, but that the white doctor took everything away and did not show her. She said her brother ran berserk in the night at Niger Foundation Hospital and in the morning they took him to Memphis Hospital. She admitted that her brother was taken to ESUT Hospital after discharge from the second hospital, but added that, the doctor told her that her brother was not okay and that he should be taken to another hospital after discharge. CW1 insisted that there was the need to take her brother to another hospital as the physiotherapist that treated him in the other hospital even said he was not given proper treatment; and that, the defendants’ bus stopped coming to convey her brother to the hospital while they stopped footing the bills.
CW1 admitted that, at ESUT Hospital: urine, blood and cholesterol tests were conducted. The learned cross-examiner was stopped after he had overspent his time. CW1 was discharged without re-examination and the case adjourned to February 5, 2020 for continuation. The matter came up as adjourned and Andrew Anoti testified as CW2 by adopting his written deposition and referred to his identity card and employment agreement, which he said were already exhibits C16 and C17. His testimony was brought to end and the case proceeded to cross-examination.
Under cross-examination, CW2 insisted he signed his written deposition at the Court. Attempt to cross-examine him on the evidence of previous proceedings was resisted on account that the same counsel had objected the tendering of the same document. The document was marked as ID. The relevant portion of the ID was read to the CW2 and; when asked whether he made the statement, he still insisted he signed the written deposition in the Court. To the further statement whether he made the written deposition at the site, he said again that he signed in the Court. He admitted he worked at the New Secretariat Complex where the incident happened. He narrated what he witnessed, ending up that, the white man pushed the claimant at the shoulder and slapped him and he fell from a storey building onto a four-inch nail, foaming and bleeding while lying down motionless and he then raised alarm that, the white man has killed someone. He said he could not remember whether the claimant was wearing helmet. He maintained that he had said the same thing in his previous testimony. He replied that when he went to where the claimant fell and raised alarm, his colleagues now came.
After his previous statement was read to him, CW2 now said, because the construction was not walled, they were able to witness all that were happening at the ground where they were. On the question that there was no medical report to show that nail pierced the head of the claimant, he retorted that, he was not a medical doctor and that it was doctor that would bring the report. To the question whether the incident happened at the first stair, he retorted that it happened upstairs. To the question that the person with whom he claimant had issue was Ahmed Hassan Haled and not the 2nd defendant, he retorted that, they don’t know them by their names, that they call them master. CW2 admitted that, he was not aware of any other incident where the 2nd defendant bullied any staff, apart from the instant one. He admitted the claimant was given overall and footwear. He said his appointment was terminated when the incident happened and that there was no letter to that effect. To the further question that, he was issued with letter of redundancy, he maintained that it was when the incident took place that he was terminated and asked to go and collect his earned wages. He said the white man asked them what happened and when he narrated it, he walked away angrily. He maintained that he was there when the incident took place; and the cross-examination was brought to an end without re-examination. CW2 was discharged at this stage while the case was adjourned for continuation.
The matter came up next September 30, 2020. The issues of whether to take the claimant whose record of previous evidence had already been admitted when he was not available came up and the matter was adjourned to give a well-considered ruling. On the subsequent date, which was October 10, 2020, the Court ruled against the defendant and allowed CW3 to be fielded. CW3 gave his name as Arinze Ede Okeke. CW3 adopted his two written depositions and his testimony-in-chief was closed while cross-examination began in earnest. CW3 maintained that the 2nd defendant asked him to remove his helmet so that he could take the picture of his face. He agreed he hesitated to remove his helmet when asked to, by the 2nd defendant. He admitted the 2nd defendant pushed him at the shoulder and he fell down. He also agreed the incident happened at blocks C and D part of the construction. CW3 agreed he could not say what transpired between when he lost total consciousness and when he regained it. He agreed it was Anoti Andrew [CW2] that told him what transpired in the interlude.
CW3 retorted that he did not know whether the medical report indicated that nail pierced his head and that he would not know if there was any other medical report tendered to show that nail pierced his head. He agreed that the 2nd defendant [Lateef Abdul] was his sight supervisor but disagreed that he was on leave when the incident happened. He said he did not know Mr. Aymal Alassan Haled by name and that he would not know if he was the person with whom he had the incident in issue. He insisted Engineer Lateef Abdul pushed him the fateful day. CW3 said it was not true he fell by himself in an attempt to dodge being captured by camera. He said it is a lie that none of the health challenges now mentioned ever happened to him. He agreed that the 1st defendant provided him with safety kits. He agreed he signed the two written depositions in his lawyer’s office. The cross-examination was brought to an end without re-examination and CW3 was discharged while the case was adjourned for defence.
The case came up October 27, 2020 and the defence opened with one Comrade Charles Aneke as DW1. DW1 adopted the written deposition made April 9, 2015. After tendering Exhibit D1, DW1 was handed over for cross-examination. DW1 disagreed that the claimant was a carpenter working at the roof of the building. To the question that the company was miserly by only providing rain coat and booth to carpenters, DW1 said there is what they called NGIC, which is the law guiding construction companies and; that, whatever a worker is entitled to, is given to him. To the question that safety belts were not provided, DW1 said whatever NGIC says is due is given to workers. DW1 admitted he was not there when the claimant fell down. He admitted that the Commissioner of Police, another senior police officer, the project manager and some engineers were present because the place was directly opposite the police headquarters. DW1 said St. Augustine Hospital did not reject the claimant, but agreed the 1st defendant moved the claimant to Niger Foundation Hospital [the second hospital]. To the question that the construction site, being a high rise, was not condoned off by nets, DW1 said he was not a safety officer to know.
DW1 admitted his office was at the headquarters of the 1st defendant. To the question that if the claimant was belted, he would not have fallen, DW1 said he was not at the site, but that, the company was safety conscious and; that, some workers would collect their safety gears and stubbornly refuse to use them. To the question if he had issued query to any worker for refusing to wear their safety gadgets, DW1 said, he was not a safety officer. He denied telling Mr. Anoti Andrew or anybody to hush the news. To the question that he DW1 was bought over, which made him to allow CW2 to be laid off within 30 days of the incident as a principal witness, DW1 said, union is for workers and; that, there is a law they follow while management does not interfere in union affairs, but that, hiring and firing is the duty of management and not that of the union. The cross-examination of DW1 was called off without re-examination; and the case proceeded to DW2.
One Obiora Peter Okoro testified as DW2. He adopted his written deposition made November 6, 2017. He tendered Exhibits D2 & D3 and his examination-in-chief was ended while the matter proceeded to cross-examination. DW2 said it was not a practice that a staff on leave in his office got leave approval documents and admitted that no document was tendered to show that Engineer Lateef Abdul went on leave the fateful day because, there was none. After reading paragraphs 4 and 5 of Exhibit D3, DW2 said he was a witness of truth. DW2 said it was not correct that another person was substituted for the 2nd defendant. DW2 admitted he was not around when the claimant fell. To the question that Andrew Anoti was laid off for raising alarm on the incident, DW2 said he did not know about dates of engagement and laying-off of workers. DW2 said it was not true that ambulance was detailed to be taking the claimant to the hospital for checkups after his discharge because of the seriousness of the sickness, but that, they did this for the world to see that nothing was wrong with him.
DW2 said the claimant was moved from St. Augustine Hospital [the first hospital] to Niger Foundation Hospital [second hospital] because; the owner of St. Augustine Hospital was not around and; more so, because, they moved the claimant to Niger Foundation Hospital because, it had better facilities for examination. DW2 said it was lie that the 1st defendant influenced the medical report and; that, he was not a safety officer on the question whether the 1st defendant provided safety nets around the site. To the question whether the 1st defendant gave the claimant safety belt the fateful day, DW2 said they assigned him with wears and that wears and safety belts are all the same. DW2 denied that the claimant was foaming from the mouth, bleeding with wooden nail stuck to his head when he fell the fateful day. The cross-examination was brought to an end without re-examination and the case of the defence closed. The matter was thereafter adjourned for adoption of final written addresses.
On February 2, 2021, the defence moved the motion to regularise their final written address filed out of time and it was granted unopposed; and the case adjourned to February 22, 2021 for adoption. It came up as adjourned. V.C. ONUIGBO adopted the final written address of the defendants together with the reply on points of law [RPL] while E.N. NWOYE adopted that of the claimant. Thereafter, the case was adjourned to April 20, 2021 for judgment. In the interim, the Judiciary Staff Union of Nigeria’s [JUSUN] industrial action commenced. I later decided to deliver it virtually through Zoom and the date was communicated to the learned counsel to the parties. Having done with summaries of the proceedings, the next thing is summary of the final written addresses.
SUMMARIES OF THE ARGUMENTS OF COUNSEL
A: Counsel to the Defence
Learned CHIEF P.M.B. ONYIA franked the defendants’ final written address. The learned counsel formulated two issues. Arguing issue 1, which is, whether the claimant has proved his case, the learned counsel was of the opinion that, the claimant did not prove his case. The learned counsel submitted that, the main reliefs are declaratory and; that, once they fail, the ancillary reliefs fail too, and cited S.O. Odulaja Black and White Hotels Ltd v. Wema Bank Ltd & Ors (2014) LPELR-2322 (CA) and other cases. The learned counsel submitted that, in declaratory reliefs, the claimant must succeed on the strength of his case and not on the weakness of the defence and cited Ilori v. Ishola (2018) 36 WRN 57 SC 78, 20-35 and other cases and S. 132 of the Evidence Act. The learned counsel submitted that, the cruxes of the claimant’s case are negligence and assault and battery. The learned counsel went on to list the ingredients of negligence and cited Makwe v. Nwukor (2001) 7 SC (Pt. 1) 10-20. The learned counsel also listed the ingredients of assault and battery and cited Stephens v. Myers (1880) 4 C&P, Okekearu v. Tanko (2002) LPELR and other cases.
The learned counsel argued that, the claimant failed to prove his case. To buttress his position, the learned counsel submitted that, because, the written depositions of CW1&CW3 were signed in the lawyer’s office instead of before the commissioner for Oaths, they are liable to be struck out or expunged. The learned counsel cited Union Bank v. Estate of Late Ogeh (2018) LPELR-46701 (CA) 77-82, C-E and other authorities on this issue. The learned counsel argued that, this Court is bound by the doctrine of stare decisis and must follow the Court of Appeal in the above-cited cases. The learned counsel cited Mekwunye v. Lotus Capital Ltd & Ors (2018) LPELR-45546 (CA) 39-40, F-A. The learned counsel argued that, once the essential facts in issue are similar, the doctrine of stare decisis must apply and cited Adedotun Oladeji (Nig) Ltd v. Nigerian Breweries Plc (2007) LPELR-150 (SC). The erudite counsel argued that, following this, the Exhibit CWA must be expunged from the record. The learned counsel argued that, the doctrine of substantial justice couldn’t be urged to decline expunging the written depositions of CW1&CW3 because, issue of failure to sign written depositions before commissioner for oath is not one of technicality, but one of failure to comply with mandatory rule and cited Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) 1 in this respect.
The erudite counsel now moved to the issue of failure to meet the ingredients of negligence and argued that, the three ingredients are cumulative. On this, the learned counsel cited Union Bank v. Estate of Late Ogeh (supra). The erudite counsel argued that, in as much as the defendants conceded that they owed the claimant duty of care, their contention is that, the claimant’s account of what happened the fateful day is false and; that, the claimant did not suffer any injury as alleged. The eminent counsel contended that, the claimant did not show that the 1st defendant was negligent in employing the 2nd defendant nor showed that the 2nd defendant was temperamental. The learned counsel argued that, to prove this, the claimant must adduce evidence of the screening of the 2nd defendant for employment. The learned counsel submitted that, no iota of evidence was led to show that the 2nd defendant had been in the habit of bullying workers and; that, no other person bullied had been called to testify. The learned counsel argued that, CW2 under cross-examination confirmed that there is no evidence of bullying he knew of the 2nd defendant. The learned counsel submitted that, this lie shows serious doubt in the case of the claimant; and, proved that the 1st defendant could not be accused of negligently employing a highly temperamental person.
The learned counsel argued too, that, the claimant failed to prove that the defendant did not provide all necessary safety gadgets. The learned counsel argued that, the case of the defendants is that, the claimant fell off the ground floor and; as such, the need for safety belt to prevent fall from high altitude would no arise. The learned counsel argued that, the defendants had even proved that they are safety conscious and that, the claimant admitted this and referred to the evidence of the claimant under cross-examination. The learned counsel referred to some Internet sources on the necessary safety gadgets for those working on high altitudes and Exhibit D1. The learned counsel submitted that, by the admission and evidence to the contrary from the claimant, he was inconsistent in his case and cited Otu & Anor v. Ani & Anor (2013) LPELR-21405 (CA).
The learned counsel argued that the admission of the claimant that he wore his helmet on the fateful day points to the fact that other safety gadgets listed in Exhibit D1 were equally provided. The learned counsel referred to paragraph 15 of the claimant’s written deposition of 4/7/2014. The learned counsel also referred to the evidence of DW1 under cross-examination that some workers would collect their kits and refuse to use them. The learned counsel went on to give instances of inconsistences in the evidence of the claimant on the issue of the floor in which the accident happened that, when the claimant said he fell off the third floor in paragraph 21(ii) of his written deposition of 4/7/2014, CW2 said he fell off a storey building, while under cross-examination in the previous trial on 3/3/2016 at paragraph 7 of page 26 of Exhibit CWA, the claimant stated that he could not remember whether it happened on the 1st floor. The learned counsel posited that the precise place from which the claimant fell off would determine the issue of necessity of safety gears. The learned counsel argued that, the Court cannot choose and must jettison the pieces of inconsistent evidence; and that, the issue of falling from high altitude and provision of falling gears would not arise. The learned counsel cited Emeka v. Innocent & Ors (2019) LPELR-48190 (CA) 28, B-C and State v. Enime (1992) NWLR [sic] (Pt. 256) 658 to the effect that, it is not the duty of court to provide explanation for such inconsistencies.
The learned counsel also argued that, the claimant failed to prove that his head was pierced by nail on wooden bracer and argued that, wooden bracers normally litter construction sites and would only be removed at the end of construction. The learned counsel said the claimant failed to tender picture of any wooden bracer with nails, nor the fact that his head was punctured by nail. The learned counsel submitted that, negligence is not a question of law, but fact and cited RCC (Nig) Ltd v. Aghaulor (2018) LPELR-46135 (CA) 9-10 and others.
The learned counsel submitted that, negligence is only actionable if damages are proved and cited Makwe v. Nwukor [supra]. The learned counsel argued that, as a result, the claimant must prove the existences of the injuries alleged and that; the defendants were responsible. The learned counsel argued that, CW1, in the previous proceedings, tendered the medical reports and lab results, but that, they were not tendered in this instant trial; and that, in any case, the documents did not even establish the injuries allegedly suffered. The learned counsel referred to the evidence of CW1 under cross-examination wherein she said the absence of these injuries on the report was as a result of suborning the medical doctor that issued it. The learned counsel argued that, it was not possible for nails to enter the head of the claimant when he had admitted he fell, wearing his helmet. The learned counsel submitted that, the Court cannot speculate on the injuries allegedly suffered by the claimant and cited Seismograph Service (Nig) Ltd v. Ogbeni (1976) 4 SC 101 and another authority and urged the Court to resolve the issue of negligence against the claimant.
The learned counsel thereafter moved to the issue of assault and battery. The learned counsel argued that, since the 2nd defendant had been shown to be on leave the fateful date, in the absence of proof of the actual tortfeasor, the claimant cannot establish a case of assault and battery. The learned argued that the claimant and his witnesses failed to adduce evidence to prove the alleged tortfeasor. The learned counsel referred to the cross-examination of the claimant on 20/10/2020 wherein the claimant, after saying he did not know his alleged assailant by name, said he did not know the person that assaulted him and the cross-examination of CW2 on 5/2/2020, where he said he did not know their supervisors by names too and; that, they call them masters. The learned counsel argued that, the mere failure to tender the leave approval of the 2nd defendant is irrelevant as that was purely internal affairs of the defendants and; that, DW2 had even testified under cross-examination that it was not the practice of the 1st defendant to issue leave approval.
The learned counsel argued that, the 1st defendant’s error in referring to Mr. Ayman Hassan Haled as Engr. Abdul Lateef [2nd defendant] had been corrected in both the Statement of Defence and DW1’s written deposition. The learned counsel argued that, CW1 had admitted that she did know where her brother fell from under cross-examination. The learned counsel also argued that CW2, not being at the scene when the incident happened, but at another wing of the construction, CW2 could not give evidence of what actually happened. The learned counsel referred to paragraph 6 of DW2’s written deposition, which he argued was admitted by both the claimant and CW2. The learned counsel cited the evidence of CW2 under cross-examination in the previous proceedings where he admitted that he did not know the wing at which CW2 worked at the time of the incident and the admission of CW2 under cross-examination on 5/2/2020 that, he was posted to complex B when the incident happened. The learned counsel argued that, because, CW2 was not at the scene, he was a suborned witness.
The learned counsel submitted that, the claimant failed to prove assault. The learned counsel cited CW2’s evidence under cross-examination on 5/2/2020 to the effect that, there was no altercation or quarrel between the claimant and the 2nd defendant. The learned counsel submitted further that, the fact leading to the assault was not proved. He gave the evidence of CW2 under cross-examination on 5/2/2020 to the effect that, the white man and the claimant met at the staircase and when the claimant gave way to him, he pushed the claimant. The learned counsel argued that, this piece of evidence is contrary to those of CW1 and CW3. The learned counsel cited Out? & Anor v. Ani & Anor [supra] and urged the Court to resolve this issue in favour of the claimant and moved to issue 2, after deprecating the damages claimed by citing Odumosu v. African Continental Bank Ltd (1976) 11 S.C. 55.
Under issue 2, which is on special damages, the learned counsel submitted that, the claim for cost of litigation and other expenses was unfounded in law. First, the learned counsel argued that, legal fees are not recoverable and cited Suffolk Pet Services Ltd v. Adnam Mansor (Nig) Ltd (2019) 2 NWLR (Pt. 1655) 1 at 33, D-F. The learned counsel further submitted that, because, the other aspects of the costs were not pleaded and itemized, they were not recoverable and ended his arguments by finally urging the Court to dismiss this suit. That being the end of the defendants’ written address, I move to that of the claimant.
B: Arguments of Claimant’s Counsel
Learned CHIEF SIR O.A.U. ONYEAMA franked this address and formulated six issues, which I proceed to take seriatim. Under issue 1, which is whether the 1st defendant was negligent and thereby failed in its duty of care to the claimant, the learned counsel submitted that, persons owing others duty of care must take reasonable care to avoid situations that would endanger those they owed the duty and cited Agbonmagbe Bank Ltd v. CFAO (1966) ANLR 130 and other cases. The learned counsel listed the ingredients of negligence as contained in Abubakar & Anor v. Joseph & Anor (2008) ALL FWLR (Pt. 432) 1065 at 1093, A-C and referred to paragraph 55 of the Amended Statement of Facts. The learned counsel submitted that, the claimant proved all the ingredients without rebuttal from the defence. The learned counsel cited Lagos City Council Caretaker Committee & Anor v. Unachukwu & Anor LER SC 242/1976 on measure of damages and Holts Transport Limited v. K. Chellarams & Sons (Nig) Ltd: LER SC 304/1970 to the effect that, there is collateral liability in torts for negligence.
The learned counsel argued that, the failure of the 1st defendant to secure the project site with protective net enabled the claimant to fall to the ground. He referred to Exhibits C15A&C15B and C14A&C14B on how protective nets looks and how its absence looks. The learned counsel also argued that, failure of the 1st defendant to supply the claimant with safety belt made it possible for him to fall from high altitude, since there was nothing securing him and; that, the use of weak wood railings instead of iron railings made it easy for the claimant to cascade down, since there was no strong railings to hold him from falling off. The learned counsel referred to paragraphs 22, 23, 25, 26, & 37 of the Amended Statement of Facts as containing the injuries suffered, which he posited, the 1st defendant did not call any nurse or doctor to rebut. The learned counsel concluded that the inference is certain that, the defendants were negligent as painted above. Thus, ended arguments on issue 1 and the stage moved to issues 2&3, which I shall summarise together.
Under issues 2&3, which is whether the 2nd defendant committed assault and battery against the claimant, the learned counsel argued that, the fact of the trespass against the person of the claimant by the 2nd defendant was not rebutted by the defendants as the 2nd defendant himself was never called or any supervisor to testify. The learned counsel argued that, the push leading to the accident is anchored by res ipsa loquitor. The learned counsel referred to paragraphs 12-23 of DW3’s written depositions and 7-12 of DW2’s written deposition. The learned counsel argued that, the defence that the 2nd defendant was on leave and could therefore not have committed the offence was not proved, as no documentary evidence of the approval of the leave was produced; more so, when the 1st defendant, through its solicitor, had admitted in its letter [Exhibit C9] that, the 2nd defendant was the one involved in the incident.
The learned counsel argued that, DW2 had even admitted under cross-examination that, it is the practice in the 1st defendant that staff go on leave with approval letter and; that, there was no document tendered in the instant case. The learned counsel argued that, DW2 also cleared the doubt on the point from which the claimant fell as the 2nd floor under cross-examination and not the 3rd; and submitted that, it is clear the claimant fell from a dangerous and unprotected height, while on duty and it is irrelevant whether it was 2nd or 3rd floor. The learned counsel cited Nwankwa v. Ajaegbu (1978) 2 LRN 230, 284 on the meaning and ingredients of assault and battery. He referred to paragraphs 14-18 & 40 of CW3’s written deposition, which he argued were not controverted. The learned counsel argued further that, since the 2nd defendant was servant of the 1st defendant, the 1st defendant bears responsibility for the liability of the 2nd defendant incurred in the course of duty. The brilliant counsel cited AGF v. Ajayi (2000) 12 NWLR (Pt. 682) 509, 528, H; and moved to issue 3.
Under issue 4, which is on absence of protective nets to cordon off the construction site, the learned counsel referred to the picture of the site [Exhibits C14A AND C14B], and argued that, they showed the project site being completely naked, contrary to the rule on modern construction sites, as depicted in Exhibits C15A&C15B. The learned counsel argued that, if this protective nets had been in place, the claimant would have been secured against cascading down. The learned counsel argued that, this omission amounts to negligence and breach of duty on the part of the defendants. The learned counsel argued further that, this was made worse by the negligent employment of the 2nd defendant, who is a temperamental person and unfit for such dangerous work. The learned counsel argued that, the fall is even proved by res ipsa loquitor. Thus ended the arguments on issue 4 and the erudite counsel moved to issue 5.
Under issue 5, which deals with damages, the learned counsel cited Odulana v. Haddad (1973) 11 SC 357 and other cases on the principle that governs award of damages. The learned counsel argued that, the need for adequate compensation is heightened in the instant case because; the claimant’s salaries have been stopped since May 2014. The learned counsel submitted that, since the damages the claimant sought are the direct consequences of the defendants’ acts, the claimant is entitled. The learned counsel cited Adodo v. Ismaila (1998) 11 NWLR (Pt. 573) 214 at 224-225. The learned counsel cited Union Bank of Nigeria Plc v. Ajabule & Anor: LER/2011/SC 221/2005 on proof of special damages and argued that, the claimant particularised his special damages in the exhibits tendered before this Court [which he failed to mention] and the evidence that treatment continued after the claimant was discharged. The learned counsel argued that, the special damages are the costs incurred in the course of this suit and the medical expenses. The learned counsel argued that, since the claimant was never sacked, he continued to be entitled to his salaries. The learned counsel cited Nigerian Bottling Company Plc v. Ubani: LER SC 291/2008 to the effect that, the claimant is entitled to general damages for trespass.
The learned counsel argued that, the Court could take into account depreciation in the value of money and cited Akhigbe v. Osondu Ltd (1991) 71 LRCN 2766 at 2794 and Jodi v. Salami (1994) ALL FWLR (Pt. 458) 385 at 416. The learned counsel argued that, the claimant has a choice as to whether he should be compensated under the Workmen’s Compensation Act or under the common law and; that, that is left to the discretion of the Court. The learned counsel cited SS. 7 & 17(1)-(2) of the Workmen’s Compensation Act on how to cumulate the damages payable on several heads of injuries. The erudite counsel submitted that, the claimant’s father had approached the 1st defendant on how to settle the issue of compensation, but that the 1st defendant rebuffed him. The learned counsel argued that, the claimant is entitled to exemplary damages and cited Complete Comm. Ltd v. Onoh (1998) 5 NWLR (Pt. 549) 197 at 221, r. 11.
The learned counsel submitted that, the evidence of the defence witnesses are all hearsay because, none of the two witnesses witnessed what actually happened; and that, the Court therefore cannot attach weight to these pieces of evidence. On the issues that the CW3 signed his written deposition in the lawyer’s office, the learned counsel argued that, the learned counsel to the other side did not identify the said document to the witness before asking this question and; that, in any case, there was no contest that the commissioner for oaths attested it. He submitted further that, oral couldn’t controvert oath. The learned counsel argued that, written deposition is different from affidavit because, the witness has opportunity of giving further life to the written deposition by the second oath in court before adopting the written deposition. The learned counsel cited Aliyu v. Balaki (2019) LPELR-46513 (CA) and Uduma v. Arunsi & Ors (2010) LPELR-9133 (CA). The learned counsel cited Fidelity Bank Plc v. Monye (2012) AFWLR Part 631 1412 at 1442, A-C to the effect that, a court of law must always strive do substantial justice over technicality. The erudite counsel finally urged this Court to dispense justice as required. That ends the final written address of the learned counsel to the claimant. I move to the RPL.
C: Defence Counsel’s Reply on Points of Law [RPL]
Learned CHIEF P.M.B. ONYIA franked the RPL. The learned counsel argued that, the doctrine of res ipsa loquitor is inapplicable in the instant scenario, but only in situations where the facts leading to the accident are not well known or where the defendant has no explanation for it. The learned counsel cited Royal Ade (Nig) Ltd v. N.O.O.M Co. Plc (2004) 8 NWLR (Pt. 874) 2006 and other cases. The learned counsel argued that, the claimant had averred in paragraph 6-12 of his pleadings how the accident occurred, while the defence has countered this by narrating a different story; hence, where there is explanation, the doctrine is inapplicable.
On the argument that salaries should be paid the claimant from 2014 to date, the learned counsel argued against this, by saying, since there was no pleading and relief to that effect, and it was just raised in the address, it could not be granted. On this, the learned counsel cited Uni Jos v. Ikegwuooha (2013) 3-4 SC (Pt. 111) 93 and another case and moved to the issue of defective written depositions of CW1 and CW2; and submitted that, the learned counsel to the claimant cited Aliyu v. Balaki out of context in not making full disclosure of the written depositions being signed in the office of a lawyer contrary to the rules of the Evidence Act and Oaths Act. The erudite counsel argued that, the case of Aliyu v. Balaki was based on the Supreme Court decision in Muhammadu Buhari v. INEC (2008) 12 SCNJ 1 at 91 and other later decisions of the Court of Appeal and as such, the erstwhile position in Aliyu’s case has been nullified on the distinction between signing a written deposition and affidavit. On the basis of the above, the learned counsel urged the Court to expunge the evidence and exhibits from the records and signed off.
That ends summaries of the final written addresses. My next burden is to marry the facts of the case to the law and come out with a convincing and justifiable final decision on the competing rights of the parties. In doing this, the tradition is that, I must have carefully studied the pleadings, evidence, written addresses, the authorities cited by the parties and have also made additional researches to unearth relevant authorities. I hereby state that I have complied with all these prerequisites. I am therefore home and dry to proceed to do my most sacred duty: give my final decision on this case; and there I go.
In deciding this case, I adopt the two issues formulated by the learned defence counsel, but I shall shun them of irrelevancies and, will add two additional issues, which are threshold. The four issues are:
- Is the signing of the written depositions of CW1 and CW3 in the claimant’s counsel’s office, fatal to their evidence?
- In the peculiar circumstances of this case, what weight is to be attached to the evidence of the defence witnesses?
- Has the claimant proved his case against the defendants?
- Is the claimant entitled to the reliefs claimed?
I take issue 1 first, being threshold. It deals with irregularity in signing the written depositions of CW1 and CW3 in their counsel’s chambers. In treating this issue, I cite Abubakar & Ors v. Yar’Adua & Ors (2008) LPELR-51 (SC) 22, B-C, where the Supreme Court held, and I quote:
“An election petition is sui generis. That is to say it is in a class by itself. Surely, this is no longer a moot point. It is different from a common law civil action. This must be borne in mind throughout these proceedings”
This principle shall guide the decision to be reached on this issue. It simply means the rules formulated in election petitions cases might not really be applicable to ordinary civil trials of similar facts. It follows that; the decision of the Supreme Court in Buhari v. INEC [supra] cited by the learned defence counsel to anchor this objection, is with utmost respect, not really applicable to a purely civil case like this, where the equally sui generis procedural rules of this Court are for construction and not the Practice Directions for election petition considered by the Supreme Court in Buhari v. INEC – p. 96-97, D-C. Let me also note that, in Buhari v. INEC, the Supreme Court considered affidavit made pursuant to the provisions of paragraph 1(1)(b) of the Practice Directions, SS. 83 of the Evidence Act and 19 of the Notaries Public Act; and not, written statement on oath made pursuant to the NICN Rules and the Oaths Act, as distinct from the Evidence Act – see Buhari v. INEC [supra] [LPELR Version consulted] 88-101, A-A, 261, D-E. And the real issue that fell for consideration therein was not issue of non-signing of the affidavit in the presence of commissioner for oaths, but that of being sworn before a notary public that had interest in the case.
It must also be pointed out that, in all the cases cited by the defence, including the Supreme Court case of Buhari v. INEC, in springing this objection, none considered the extant civil procedure rules of the NICN that fall for consideration here. Rules of this Court provide for the making of written statement on oath. They must therefore primarily govern the effects of any irregularity thereof, and not necessarily the statute under which the oath was administered or sworn – see S. 10(2) of the Interpretation Act. It is Order 3, Rule 9(c) of the NICN Rules that makes provisions for the filing of witness written statement on oath and; it provides that, it must be made under oath. Whereas, Order 3, Rule 21(1)-(2) of the NICN Rules provides:
- “Where a Claimant fails to comply with rules 7, 8 and 9 of this Order, as the case may be, the Claimant’s originating process shall not be accepted for filing by the Registry.
- Where a Claimant fails to comply with rules 9 and 10 of this Order, the Defendant may file a motion on notice challenging the competence of the action filed by the Claimant. Such notice shall be filed within seven (7) working days from the date of receipt of the originating process and shall state the grounds of incompetence in the supporting affidavit.
- Where the Claimant receives the notice in sub-rule 2 of this rule, from the Defendant(s), the Claimant shall file a counter-affidavit in response to the notice within (5) working days. The counter-affidavit shall be supported with a written address.”
Now, the above are the rules of this Court that govern the filing of written statement on oath and how to challenge any irregularity resulting therefrom, and what the result of failure to challenge infractions on time, as in the instant case, would be. By the combined effects of Rules 21(1)&(2) of the NICN Rules, as reproduced above, first, it is clear that, it is the duty of the Registry to ensure compliance with the requirements of oaths for written depositions, by outright rejection of any non-compliant written statement from being sworn; and that, when any irregularity slips off the notice of the Registry, and it did not thereby stop the defective written deposition from being accepted for filing, it is the duty of the affected party to object within 7 days, by filing motion on notice to challenge the incompetent Written Statement on Oath. These double-decker checks are imposed to ensure that; no defective written deposition is ever filed or got to the trial stage, to obviate this type opportunistic objection at advanced stages of trials. What therefore, is the effect of non-compliance with Order 3, Rules 9(c) and 21(1)&(2) of the NICN Rules? The effects are twofold. The first is as provided under Order 5, Rule 4(1)(a) of the NICN Rules, which says:
“At any time before or during the hearing of a matter the Court may – (a) direct, authorise or condone a departure from the Rules, where the Court is satisfied that the departure is required in the overall interest of justice, fairness and equity.”
Relevant too, is Order 5, Rule 6(3) of the NICN Rules:
“In any proceedings before it, the Court shall apply fair and flexible procedure and shall not allow mere technicalities to becloud doing justice to the parties based on law, equity and fairness while also considering the facts of any matter before it.”
Technicalities are contained in procedural rules, like the Evidence Act, Oaths Act and the rules of courts cumulatively called ‘adjectival law’ or ‘procedural law’, as distinct from substantive law. And they are held to becloud justice when objections are based on them without the objector being able to cite what injuries have been suffered by reason of the objected irregularities. That is what is called crass technicality. It follows from the above rules that, when the Registry, of which part is the Commissioner for Oaths, accepts a defective written deposition for filing against the rules of this Court and the defendant failed to object within reasonable time against the rules of this Court too, the defendants are deemed to have waived their rights to complain and the Court would be at liberty to use the defective written statements on oath in the interest of justice, fairness and equity, as ordained by the rules – see PDP v. Ballantyne & Ors (2011) LPELR-9123 (CA) 18-19, C-E and Saude v. Abdullahi (1989) LPELR-3017 (SC) 64, C-F.
The defendants did raise this objection when irregular written statements on oath were served on them or immediately they cross-examined to that effect. They went ahead to continue with the trial and now raised the objection in their final written address. That is wrong. That is the whole philosophy behind the rules of this Court, as a specialized labour Court with sui generis rules, ordained by Third Alteration Act and concretized in Order 1, Rule 9(3) of he NICN Rules, which, in this wise, provides that: “The Court may disregard any technical irregularity which is likely to result in a miscarriage of justice.”
This is in tune with the responsibility of Nigeria, through the NICN, to be in comity with other nations on the need for unencumbered and flexible access to courts on labour matters as enjoined by Article 10(b)(iii) of ILO Convention 190 [C190] at www.ilo.org/dyn/normlex/en/f?p=NO [accessed 09:43am 05/15/2021]. C190, though, not ratified by Nigeria, is nonetheless mirror of international best practices on the labour standard required with respect to easy access to justice on issues of labour and employment disputes – see S. 254C-(1)(f)&(h) of the 1999 Constitution [as altered]. For this reason, the procedures in the NICN, nay, labour courts all over the world, are not as legalistic as that of the ordinary civil courts. The procedures are deliberately made flexible to ensure that, justice is not sacrificed on the altar of technicalities – see SS. 12(2)(b) & 43 of the National Industrial Court Act [NICA] and Order 1, Rules 9(2)-(3), Order 5, Rules 1, 6(2)-(3) of the NICN Rules.
Arising from the above, it is my humble, but considered opinion, that; it should not matter if the first oath is defective. It should be open to the Court to allow the witness adopt it simply as written statement adopted on oath, akin to the previous position before the advent of frontloading, whereby the witness gives his evidence orally on oath, since it has satisfied essentially the purpose of frontloading, which is to give advance notice of the proposed evidence to the other side. I think that is the cumulative implication of Order 1, Rule 9(3); Order 3, Rules 9(c) and 21(1)&(2); Order 5, Rules 4(1)(a) & 6(3) of the NICN Rules. So, the second oath in the Court should, in conjunction with the above-cited provisions of the NICN Rules alongside S. 4(2)&(3) of the Oaths Act, cure any defect inherent in the first oath. To hold otherwise is to say the second oath, administered under the direct auspices of the judge, has no relevance, but that administered before registry officer – see Enyi v. Prodeco International Limited (2018) LPELR-44690 (CA) 4-14, F-D.
After all, the first oath makes it a mere written statement on oath, but it is the second oath before the judge in the open court and the subsequent adoption before the Court that makes it evidence before the Court. So, the one that makes it evidence should carry more weight, otherwise it would not have been necessary. And it is not said that the Court lacks discretion to take oral evidence without written deposition – see Order 40, Rule 18 of the NICN Rules and S. 43 of the NICA. The law could not have been improved upon for the sole purpose of hearing cases on the merit and this frontloading innovation is now being used as a means of putting any of the parties in a situation worse than it was under the erstwhile period, using law as an instrument of injustice!
This position is even reinforced by section S. 4(2)&(3) of the Oaths Act, which is the section under which the written depositions in question were made, by virtue of Order 3, Rule 9(c) of the NICN Rules, which provides for the making of written statements on oath. S. 4(2)&(3) of the Oaths Act clearly provides that, no irregularities shall render inadmissible evidence in respect of which the irregularity took place – see Kaan International Development Limited v. Little Acorns Turnkey Pro (2018) LPELR-45291 (CA) 15-20, E-A. And reading the whole ambit of the Oaths Act, I surprisingly did not find any provision mandating that, oaths under the Act be signed before commissioner for oaths to be valid. This is very significant for the objection in issue, based squarely on non-signing of the written statements on oath before the commissioner for oaths, and not that, it was not sworn before the commissioner for oaths.
The only mandatory requirements imposed under the Oaths Act are that: the place and date the oath was taken before a commissioner for oaths must be clearly stated – S. 6 of the Oaths Act. Only affidavits are required to be signed in the presence of commissioner for oaths, by virtue of S. 117(4) of the Evidence Act. Apart from construing different statutes and rules of court, it is in this respect that, Kaan’s case [supra] must be preferred to Ogeh’s case [supra] heavily relied on by the defence. Both cases are clearly conflicting cases from the Court of Appeal on the issue of how to treat written statements on oath not signed before commissioner for oaths. I found that, though, Ogeh’s case is the latter, but that, it did not take cognisance of kaan’s case, an earlier contrary decision of the Court of Appeal on the same issue. I take refuge in the decision of the Court of Appeal in Ngun v. Mobil Producing Nigeria Unlimited (2019) LPELR-20197 (CA) 31-32, F-A, which relied on the Supreme Court case of Osakwe v. F.C.E. (Technical) Asaba, where the law on how to decide which to follow between two conflicting precedents was stated, in deciding which to choose between these two conflicting precedents of the Court of Appeal:
“Where there is no discernable ratio decidendi common to the decisions of a superior court and this Court has handed down conflicting decisions, the lower Court or a Court of co-ordinate jurisdiction is free to choose between the decisions which appear to it to be correct…”
I therefore choose Kaan’s case [supra] for the reason that, Ogeh’s case did not consider it nor overruled it and, for the additional reason that, its rationalisation appears to be more in tune with the peculiar facts and laws governing this case than Ogeh’s case. Relying on a long line of cases, the Court of Appeal held in Kaan’s case [supra]; and I quote in extenso:
“Even if the additional record is discountenanced…the witness’ statement on oath will still be valid, by reason of Section 4(2) and (3) of the Oaths Act which provides that: 4(2) ‘no irregularity in the form in which an oath or affirmation is administered or taken shall…(c) Render inadmissible evidence in or in respect of which an irregularity took place in any proceedings. (3) The failure to take an oath or make an affirmation and any irregularity as to the form of an oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth.’ Having deposed to the witness statement on oath before the commissioner for oaths in accordance with the Rules of the High Court of the Federal Capital Territory and the Oaths Act, the failure, if any, by DW1 to sign the copy of the witness’ statement on oath contained at pages 83 to 88 of the record of appeal is clearly an irregularity, which should not render the deposition of DW1 inadmissible merely on account of such defect; this is so because since the evidence of DW1 is taken to have been given as if under oath, by reason of the deposition, clearly no miscarriage of justice would be occasioned by the failure to administer the oath, even if he is taken to have failed to sign the deposition…If anything, it indeed is only an irregularity, especially as it did not affect the decision arrived at on the evidence, especially as it has not been having shown to have occasioned any miscarriage of justice. Ex facie, the document was evidently sworn to before ‘a duly authorised person’ i.e. the commissioner for oaths…This is more so as the written statement on oath which was adopted at a later stage, on oath again, by the maker before he was cross-examined is cured of any defect by reason of the subsequent oath of DW1…It is very important also to not lose sight of the clear distinction between an affidavit and a witness statement on oath, because it is not necessary that all sworn documents or oath must comply strictu sensu with the provisions of Section [sic] 117 and 118 of the Evidence Act… ‘…the Rules of Court do not intend to encrust the written statement on oath with the formal garb of an affidavit as tailored by Section 107 to 120 of the Evidence Act, 2011”
The Court of Appeal has settled the issue of defective or irregular written deposition in a long line of consistent cases before its decision in Ogeh’s case, which failed to consider Kaan’s case, which was in tune with these long lines of cases that had settled the issue – see also Enyi’s case [supra]. It is also clear in the quotation from Kaan’s case and as italicized above that, the rules of court are of focal importance on the fate of irregular written depositions. In fact, the Supreme Court has even held in Solola v. The State (2005) LPELR-3101 (SC) 16-17, F-A that:
“By Section 4(3) of the Oaths Act, the failure to administer oath on a witness before giving evidence is a mere irregularity which does not affect the decision arrived at on that evidence unless it has been shown to occasion a miscarriage of justice…”
If the Supreme Court could say failure to administer oath on a witness in the open court is mere irregularity, how much less irregularity would failure to sign in the presence of the commissioner for oaths be, in a situation where the written statement on oath is actually duly sworn before the commissioner for oaths and duly adopted on oath again before the Court? The irregularity would definitely be less weighty than not being sworn at all. Apart from the foregoing, an apposite principle of interpretation is: the express mention of one thing, excludes those not mentioned – see Mazeli v. Mazeli (2012) LPELR-19945 (CA) 19, F. The express mandates in S. 6 of the Oaths Act that, the place and date the written statement on oath was taken to the commissioner for oaths be clearly stated, without specifying that it be signed before the commissioner for oaths, as required with regard to affidavit under the Evidence Act, means, the need to sign the written deposition before commissioner for oaths is not sacrosanct with respect to written statement on oath made under the Oaths Act. What is sacrosanct is the oath. And written deposition [written statement on oath] is not affidavit – see GTB Plc v. Abiodun (2017) LPELR-42551 (CA) 27-28, C-A.
And even, if per chance, it is held that, there is no distinction between affidavit sworn under the Evidence Act and written statements on oath sworn pursuant to the Oaths Act, S. 12(2)(b) of the NICA takes care of the irregularity in issue, by giving this Court the power to bypass the Evidence Act in the interest of justice, thereby giving this Court the discretion to admit in evidence, notwithstanding such non-compliance with the Evidence Act. This marks another important distinction between this case and the ones cited by the defence. The provisions of S. 12(2)(b) of the NICA are given imprimatur by the provisions of SS. 3 of the Evidence Act itself and 4 of the Interpretation Act. I therefore hold that, the defendants have waived their right to object to the irregularity in issue – see Okpeh v. The State (2017) LPELR-42487 (CA) 21, C-F and; that, the Court is at liberty to leave unscathed the evidence anchored by these written depositions; and they are hereby so left. I also hold that, the wording of the Oaths Act does not bear the interpretation that oaths must be signed before commissioner for oaths to be valid. I equally hold that the irregularity in issue is not one that affects the substance of the case. The defence has not complained of any injury suffered.
In Ogeh’s case [supra], heavily relied on by the defence, the major issue thrashed out is that of the written deposition not being sworn before the commissioner for oaths; as it would appear, with the greatest respect, the Court of Appeal was of the view that, the witness [DW1] signed in the office of his lawyer and did not take the written deposition to the commissioner for oath to be sworn, even though, he followed his lawyer to the High Court to do some signing, but in this particular instance, there is no cross-examination to the effect that, the CW1 and CW3 signed in their lawyer’s chambers and left without taking the written depositions to the commissioner for oaths to be sworn. The commissioner for oaths authenticated these written depositions as having been duly sworn before him by the named witnesses; and since there is no cross-examination to contradict this, it must be taken that the commissioner for oaths duly swore CW1 and CW3 on these written depositions, even though, they did not sign before him.
To swear a witness or deponent is different from signing. Signing is done prior to the oath. To swear is to use the instrument by which oath is made on the witness so that he can recount the oath – see S. 5 of the Oaths Act. Thus, it is swearing the oath that is stressed in the Oaths Act and not signing the written deposition. Arising from all that I have said above, it would appear, with the greatest respect that, all the authorities cited by the learned counsel to the defendants are inapplicable to the rules of this Court and the relevant laws; and thus, are not precedents for this Court to follow.
I come to the second segment of the issue. This deals with the effect of errors of counsel and court registries on processes filed by litigants without connivance. It is the law that, mistake of counsel cannot be visited on a litigant, who is not complicit – see Saleh v. Monguno & Ors (2006) LPELR-2992 (SC) 29-31, F-A. It is also the law that, tardiness of registries cannot be visited on litigants – see Ibekwe & Ors v. Azubuike (2016) LPELR-40546 (CA) 40-42, F-E. I found that, those cases cited by the learned defence counsel, none examined the angle of error of counsel and that of the registry and the effect thereof on the litigants; maybe because they all construed different rules of courts. It is not in doubt that; the witnesses in issue were made to sign these written depositions by the claimant’s counsel in his chambers. It is certain that, the learned counsel did not tell them this was wrong and they insisted on signing there. Thus, it is clearly the error of counsel to have asked them to sign in his chambers.
The learned counsel, who was supposed to know better, pushed the witnesses into this, and; he suffers nothing for his error or carelessness, but the innocent litigant who has paid for his professional services would now suffer the sins of his lawyer’s professional ineptitude! There is no evidence before this Court that the witnesses had prior knowledge that they were supposed to sign in the presence of commissioner for oaths or that, they contributed anything to this error. It is also very clear, the Registry negligently accepted these written depositions for filing contrary to the rules of this Court; and thus, allowed the error to continue unabated, contrary to the mischief the rules of this Court already cited intended to cure. It is also on record that the defendants did not raise objection against this timeously. I therefore hold that, CW1, CW3 and rather the claimant could not be punished for a sin they knew nothing about and committed by the duo of the learned counsel to the claimant and the Court’s Registry, and even the defendants, in not raising the objection timeously.
I also wish to point out that, a case is only an authority on its peculiar facts and circumstances and not a catch-for-all, as demonstrated in this case by the differing rules of the NICN and statutes under consideration – see Nigerian Custom Service Board v. Echy Nigeria Limited (2017) LPELR-42891 (CA) 24-25, C-A and Oni & Ors v. Governor Ekiti State & Ors (2019) LPELR-46413 (SC) 13-19, A-D. I also wish to say that, a very useful rule of interpretation is that, where there is doubt about the correct interpretation a particular statutory provision should have, the mischief which the statute or provision intends to cure is a good guide. The innovation of frontloading was brought about to eschew the fencing game, which the practice of law at our courts had become and, to enthrone openness and substantial justice against technical justice. The interpretation being urged on the Court by the learned counsel to the defence is to replace the mischief, which the law intended to cure, with a more pernicious and insidious one! To accede to such would have produced a very absurd result weirdly indicating that, the lawmakers had unwittingly replaced a problem they intended to solve with a much more serious one! That definitely could not have been the intendment of the lawmakers.
Originally, before the advent of frontloading, witnesses simply took oaths and testified orally and tendered all their documents for the very first time, and these pieces of evidence were valid. How would it come about that, where these pieces of evidence have been reduced into writing, by dint of the innovation of frontloading, and served on the other side, with copies of all documents to tender in advance and, the other side deftly waited till the trial to lay the foundation for objection against the written depositions, under the guise of cross-examination, and this was after a second oath had been taken to validate the same written depositions, on the ground alone, that, the processes were not signed before commissioner for oaths and not that they were not duly sworn; yet, went ahead to cross-examine on it, and now asked at the address stage that, it be expunged from the record, so that, the claimant would be bereft of evidence to prove his case, I think that would be encouraging a more pernicious system of chicanery and springing of surprises, worse than the mischief the law intended to cure by the innovation of frontloading. These documents were duly sworn before Commissioner for Oaths, but only not signed before the commissioner and the deponents did not disown them at any point.
In such ugly scenario as this, this Court has a sacred duty to adopt the beneficial interpretation that would allow the case to be decided on merit, being a labour case, on which no less than the Constitution itself, by virtue of S.254C–(1)(f), directly mandates the Court to do away with all vestiges of unfair labour practices, while it must strive to enthrone fair labour practices in accordance with international best practices, and which S. 12(2)(b) of the NICA together with the rules of this Court, already cited, anchored, by mandating the Court to be flexible and do away with technicality in the interest of justice – Baolgun v. Salami & Ors (1963) LPELR-25407 (SC) 8, D-E and Kalu v. Odili & Ors (1992) LPELR-1653 (SC) 85, B-D.
In the final analysis, I would even venture to say that, the cross-examination leading to the questions about where the written depositions in issue were signed are totally irrelevant and off the purpose of cross-examination. The purpose of cross-examination is to test the veracity of the evidence adduced by the opponent, in this case, the depositions contained in the written statements on oath – see GTB Plc v. Fadco Industries Nigeria Limited & Anor (2013) LPELR-21411 (CA) 42, A – and, the procedure of making written statement on oath is not part of the evidence contained in a written statement on oath and; therefore, ought not to form part of questions under cross-examination. CW1 and CW2 did not plead nor give evidence as to the procedure of making written statement on oath or as to how they made their written statements on oath and; could therefore, not be cross-examined on such extraneous and irrelevant issue to the purpose of cross-examination – see Isheno v. Julius Berger Nig Plc (2008) LPELR-1544 (SC) 24, C-F. As such, the purported cross-examination on this issue and the answers elicited go to no issue – see Olora v. Adegbite (2012) LPELR-7937 (CA) 26-27, G-A.
This shows clearly that, the cross-examination on this score was misplaced and; that, what the learned counsel wished to achieve is properly a subject for preliminary objection on procedural irregularity on the written statements on oath. The learned counsel cannot dodge the proper procedure of challenging such irregularity as laid down by the rules of this Court by deftly employing cross-examination for a wrong purpose. He must use the procedure of raising objections on procedural irregularities and at the appropriate time, to get the trophy he intended to get through the backdoor. This takes us back to Order 3, Rule 21(1)-(3) of the NICN Rules. He must come by way of motion on notice supported by affidavit stating how the defendants knew that the written statements on oath were not properly deposed. Having failed in this respect, the defendants have therefore waived their right to complain on any irregularity on the written statements on oath of CW1 and CW3; and I so hold – see European Soaps and Detergents Limited v. MW Beer & Company Limited (2017) LPELR-41873 (CA) 5, B-F; Zakirai v. Muhammad & Ors (2015) LPELR-40387 (CA) 30-31, C-E and Ajayi & Anor v. Suru & Ors (2019) LPELR-48791 (CA) 13-19, C.
May I add that, it is significant that, the written statements on oath in issue were not tendered as exhibits in Court, but were only adopted and; as such, they are not liable to be expunged as pieces of documentary evidence which are by law totally inadmissible in evidence. They are akin to a written address adopted, but only different because they were adopted under oath. It is really the second oath in the Court and the adoption that make them cognizable as a process before the Court and not the original oath before the Commissioner for Oaths, unlike affidavit, which upon being sworn, becomes a full-fledged evidence without the necessity of a second oath to activate it before the Court could rely on it. I therefore hereby dismiss the objection and hold that these written depositions remain intact. The judgment progresses to issue 2.
Issue 2 deals with the question of the weight to be attached to the pieces of evidence from DW1 and DW2. This is a threshold issue too. It is common ground that DW1 and DW2 were not eyewitnesses to the events leading to the accident in issue. Ordinarily, their evidence is hearsay, but the law is replete with exceptions, and one of such exceptions to the rule of hearsay, is evidence given on behalf of a corporate body – see Okolo v. FRN (2018) LPELR-45431 (CA) 25-27, E-A. So, this authority knocks out the bottom in the claimant’s learned counsel’s arguments that the evidence of DW1 and DW2 are hearsay because they were not present when the events in issue happened. Nevertheless, this exception or rather legal fiction is not without limitations or exceptions too. The limitation is that, the evidence given on behalf of a company by its human agents might not have the desired weight in relevant circumstances – see Kajo v. Benue Cement Company Plc (2013) LPELR-20788 (CA) 21, E-G:
“I do not agree with the submission of learned counsel for the appellant that the evidence of DW3 was hearsay. As an employee of the respondent he was entitled to give evidence of transactions of the company, whether he personally handled the transactions or not. It is only the weight to be attached to such evidence that may be considered by the Court…DW3 did not testify regarding his personal knowledge of the transaction but only stated the where about of the audit report as at the time of trial. DW3 also gave evidence regarding the policy of respondent respecting cases of embezzlement of cement by employees.”
It is certain from the italicized portions of the quotation that, where the witness attempts to give evidence that requires personal knowledge of an incident he did not witness, his evidence for the company would not have weight; and that, to bear weight, such evidence must only relate to transactions of the company and not tortious acts of its staff. The instant case is that of negligence, assault and battery against specific staff of the 1st defendant, leading to accident and personal injuries. It is certain that in the main, DW1 and DW2 attempted to give evidence to negate the direct accusation against an officer [2nd defendant] of the 1st defendant company that, he committed no trespass against the person of the claimant and; that, he was not responsible for the accident in issue.
It is my view, as anchored by the above-quoted authority that, when direct case of assault and battery leading to accident and industrial injury is at stake against a specific human agent of a corporate body, its that specific staff alone that can answer these allegations and not any other human agent of the company who was not an eyewitness. Any evidence given in breach would not have any weight on that aspect of the case – see unreported decision of this Court in NICN/EN/40/2016 – Josiah Danjuma v. Royal Salt Ltd & Anor [delivered 29/09/2020] p. 20-25. I found that minor aspects of the evidence of DW1 and DW2 tried to give the policies of the 1st defendants on leave, recruitments and safety measures, save these aspects, the main parts of the evidence, which tried to delve into what led into the accident in issue and whether the 2nd defendant was responsible, lack any basis for any weight to be attached; and I so hold.
It follows that; the evidence of CW3 as to the cause of the accident and of assault and battery remained unchallenged. The 2nd defendant was not called to testify and no explanation was given as to why he was absent; and even, the feigned substitute for him was also not called to testify in a case of allegations made against specific officer of the 1st defendant. I am of the view that the arguments of the learned defence counsel that, because, the claimant said he did not know Mr. Hyman by name, that means, he did not know the person he had encounter with, cannot hold. In the first place, the interpretation attached to the answer of the claimant under cross-examination is not correct. I come to this anon under issue 2. In the meantime, the defendants have admitted in their letter [Exhibit D3] to the learned counsel to the claimant that, it was the 2nd defendant, as named by the claimant that, was involved in the events that culminated in this action. It is too late in the day for the defendants to attempt to retract. The admission against interest duly made without duress in that letter, corroborated the claimant. The attempts to retract this would amount to blowing hot and cold on the same issue. The law frowns on such behaviour – see Aregbesola v. Owolade & Anor (2016) LPELR-24293 (CA) 30-31, E-A.
In the second place, the 2nd defendant did not deny these allegations made against him personally. Neither was the attempted substitute called too, to admit that he was the one that had encounter with the claimant, and not the 2nd defendant as named. And neither DW1 nor DW2 told us how they came to know what happened in a place in which they were not present at the fateful time. To nail the coffin on the issue of the culpability of the 2nd defendant, the defendants refused to tender any documentary evidence of his leave approval, preferring to say the company has no policy of granting leave on papers. Yet the 1st defendant has policy of quickly documenting loitering workers for surcharge. It is a story better told to the marines. Since the leave approval was not documented, the 1st defendant has the duty to tell the Court the specific person [authority] within the 1st defendant that approved the leave, when and how, and they have failed to so do.
Since the DW2 did not tell the Court he was the one who approved the leave, how did he know that the 2nd defendant was on leave? He is not in a position to give evidence on an issue involving the personal action of another called to question. DW2 is definitely not in a position to give evidence of the supposed oral transaction of the company without even naming the person who orally granted the supposed leave. DW2 did not tender the leave pay slip of the 2nd defendant to induce believe that he went on leave. Or, the company did not also have the policy of recording leave payment for its workers? By virtue of Ss. 7(g) and 18(1) of the Labour Act, there must be written term of the contract relating to leave right and this must be with pay. Failure to tender any document in this regard only shows that no leave was granted the 2nd defendant and that he was at work as pleaded and testified by the claimant. It simply means 1st defendant failed to prove that the 2nd defendant was on leave and that the story of the claimant remained unscathed. Let me say that, even if the claimant did not know by name the supervisor he had encounter with, that would not absolve the 1st defendant of liability because, it admitted the claimant actually had encounter with one of its supervisors and gave the name of the supposed supervisor.
In an action in tort, both the actual tortfeasor and the master [the 1st defendant company in this instance] are severally and jointly liable and could be sued as such and this does not detract from their joint and several liabilities – see Ifeanyi Chukwu (Osondu) Company Limited v. Soleh Boneh (Nigeria) Limited (2000) LPELR-1432 (SC) 25-26, A-C:
“Being joint tort-feasors, therefore, a plaintiff is at liberty to choose his victim; he may decide to sue either of the master and servant separately or both of them jointly… Where he sues one of them separately and succeeds, this is not a bar to an action against the other who would if sued, have been liable as joint tort-feasor in respect of the same damage. The question that may arise is as to contribution between the joint tort-feasors. And this question is taken care of by…Sections 14 & 15 of the Torts Law…of Bendel State of Nigeria, 1976 which provide…c. any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as joint tort-feasor or otherwise, so, howsoever, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability of which the contribution is sought.”
What I am driving at is that, if the 2nd defendant could be sued in his personal capacity, and he could get contribution from the 1st defendant, if the action succeeds against him, would DW1 and DW2 be in a position to give hearsay evidence in his favour, if he had been sued alone? The answer is no. It follows that, this is one of the instances where the veil of incorporation must be lifted in order to eschew illegality – see Oyebanji v. The State (2015) LPELR-24751 (SC) 41-42, D. It should be noted that, the facts of this case, if proved, amounts to unlawful or illegal act. They can also sustain criminal charges. If the 1st defendant desires to defend the action, he must make the 2nd defendant appear in person to defend the action to enable its evidence have cogency and weight. Where the 1st defendant fails, as has happened in this action, and the alleged tortfeasor is shielded, it makes it easier for the claimant to establish his case, as no third party or stranger, who was not an eyewitness, even though, an employee of the 1st defendant, would be in a position to answer the very personal allegations made against the alleged tortfeasor and would not also be in a position to be cross-examined on the facts he did not witness. This is quite different from a situation where the issue involved is a normal lawful routine of the company and fully documented in the normal course of its business.
Any staff, including those who did not participate in the transaction, could at any point in future be called upon to testify on behalf of the company; since such staff would be in virtually the same position as the actual participant, to give evidence and tender documents, once he has read the file relating to the matter and, would be in a position to be cross-examined on the fully documented transaction. It should not be forgotten that, in a case of tort, as the instant one, which is a personal action, the claimant has to prove primarily the personal liability of the actual tortfeasor and once this is done, pronto, the company becomes vicariously liable; and to escape liability, the company must produce the actual tortfeasor or eyewitness to explain what actually transpired in a situation where he alone and the injured party and eyewitnesses knew exactly what happened. This could not been done through a non-eyewitness proxy.
Therefore, where a tortfeasor is sued personally, he must answer personally as agent of a corporate body. He could not procure a non-eyewitness to answer in his stead. I wonder why the 1st defendant decided to shield the 2nd defendant from testifying and yet, also refused to field any of the other workers-eyewitnesses or the attempted substitute for the 2nd defendant and proceeded to call employees who knew nothing about the matter to testify. I venture to say that, wherever an employee could be sued personally as a tortfeasor that, might automatically signal lifting of the veil of incorporation. To induce weight, the tortfeasor or eyewitness must testify. In view of all the above, I hold that the evidence of DW1 and DW2 on the issue of how the accident occurred and on the issue of assault and battery do not deserve to be attached with any weight and I refuse to attach any weight to that aspect of the evidence. I move to issue 3.
Issue 3 deals with whether the claimant proved his case. Under this issue, we shall examine the questions of assault, battery, negligence and injuries. Having done with the effect of the evidence of DW1 and DW2 on the issues of how the accident happened and the assault and battery, we shall now look at the evidence of the claimant to see if he established his claims. In this aspect, it does not matter that I have held that, the evidence of DW1 and DW2 on these scores have no weight, the claimant must still adduce cogent and compelling evidence to have the day. His case too must not have been destroyed under the furnace of cross-examination. The relevant evidence of the claimant as CW3 is that, on the fateful day, the Project Manager [PM] summarily and wrongly sacked him and ordered him to collect his payoff, for allegedly daring to stop a worker he sent up the third floor to pick a plank, whereas, it was Mr. Jegede [a co-worker] that actually stopped the said messenger.
The claimant said the PM did not listen to his explanation, but instead, angrily called his immediate supervisor to come up; and that, he started going down in protest to see the paymaster for his payoff, but had scarcely descended the first staircase of the third floor when his immediate supervisor [2nd defendant] met him at that point, with a camera and ordered him to go back to the third floor and pulled him by the shirt and dragged him back to the third floor for the purpose of being able to take his picture where there was more light. He said the 2nd defendant ordered him to remove his helmet, and that, when he was still hesitating and insisted he be allowed to go, since he had been sacked, the 2nd defendant became furious and pushed him at the shoulder and he staggered, missed his steps and fell off the third floor.
Under cross-examination, the claimant maintained his story. He however said that he did not know Mr. Aymal Alassan Haled by name and would not know whether he was the one he had issue with the fateful day, but at the same time, maintained when questioned further that, Engr. Lateef Abdul [2nd defendant] pushed him the fateful day. This would appear to be some sort of unclear thought, of which the learned counsel to the defence made a heavy issue in his address and, the treatment of which I deferred to this place. But it should be borne in mind that, two people were involved in the face-offs: the PM and the 2nd defendant. The claimant repeatedly maintained under cross-examination that the 2nd defendant was the one who pushed him and also identified him by name. It should be recollected that, the claimant never, at any point, gave the name of the PM, while he pleaded and gave evidence that the 2nd defendant was his immediate supervisor and gave his name. From this, it is reasonable to draw the inference, consistent with his testimony, both in-chief and under cross-examination that, he knew the 2nd defendant very well, being his immediate supervisor, with whom he must have had constant labour interactions, but not the PM, the big master, whom he would not frequently relate with, which in any case, is the reason why the PM called on the 2nd defendant to come up to identify the claimant as the dismissed staff. It is therefore clear that the claimant was referring to the PM as the one he did not know by name and not the 2nd defendant.
The defendants themselves remove any lingering doubt when they admitted in their letter to the claimant’s counsel that, the claimant actually had issue with his supervisor and; that, it was Engr. Lateef Abdul [the 2nd defendant] that was the said supervisor – see Exhibit D3. This is an admission against interest and seals the fate of the defence on this issue – see Mohammed v. APC & Ors (2019) LPELR—48061 (CA) 60-62, E-A. More so, the claimant had maintained earlier on, at the beginning of the cross-examination that, it was the 2nd defendant that asked him to remove his helmet so that, he could take the picture of his face and that, he pushed him at the shoulder when he hesitated and he fell. He also maintained that the 2nd defendant was his site supervisor, but disagreed that the 2nd defendant was on leave the fateful day. I think the evidence of the claimant has been very consistent on this score. His evidence that the 2nd defendant dragged him to the third floor and that, the third floor was the current construction floor, for the purpose of more light to enable him take his photograph is consistent with the admission of the defendant that the 2nd defendant attempted to take the claimant’s photograph for the purpose of showing it to the roll recorder as the loiterer.
If the issue of attempt to take photograph with camera is a common ground between the parties, it is logical that the photographer, would want to be in vantage position to take a good photograph and; therefore, could not have taken it at any better place than the last floor upstairs where there was nothing blocking the light. And since the claimant testified that he was dragged back up to the third floor for this purpose, if the defendants want to deny this, they must tell the Court at what point exactly in the building the claimant and the defendant met or where exactly the 2nd defendant was standing at the time he wanted to take the claimant’s picture. Now, at paragraph 3 of the Statement of Defence, this how the defendants narrated it:
“…On the faithful [sic] day, 23rd January 2014 Mr. Hyman was in the “C” complex of the site, with the Project Manager when they heard some noise from the “D” complex of the site. The Project Manager then directed Mr. Hyman to investigate the unusual noise. On getting there, he found the claimant shouting and descending from the staircase. He (the site supervisor) focused his camera phone on the loiterer (the claimant) to capture his image for identification purposes, as aforesaid. The claimant, then in a bid to avoid/dodge being caught on camera misstepped, lost balance and fell down. This took place on the first flight of stairs in the said complex i.e. ground floor segment of the staircase and not on the 3rd floor.”
Mr. Hyman, whom the defendants attempted to substitute for Engineer Lateef Abdul [the 2nd defendant], did not tell us at what floor the said “C” Complex was. He did not testify at all. The pleadings admitted that the claimant was shouting and descending. It means the said Mr. Hyman, as narrated above, was dodging an important fact because, the claimant clearly pleaded that the 2nd defendant was ascending while he [the claimant] was descending when they met at the staircase, when he the claimant had just started descending the staircase of the third floor. The story narrated by the defence suggested that, where the fictitious Mr. Hyman was, was not far from the third floor. In any case, “C” is not far from “D” alphabetically. If the claimant was at the last staircase of the three-storey building at the ground floor, as pleaded by the defence, at the material point, and he Mr. Hyman, wanted to take his picture for identification purposes, is it his back that he would take, since it was agreed the claimant was descending? And if the said Mr. Hyman was downstairs, could he have wanted to take the picture in a place without much light at the foot of the staircase of the ground floor? The answer to both questions is no.
If the said Mr. Hyman was actually downstairs when he was ordered to investigate the cause of the noise, he would immediately begin to ascend the stairs and would meet the claimant who was descending the stairs on the stairs; and if he was upstairs, he would only see the back of descending claimant; and would not be able to take his picture. The only reasonable explanation is that, the 2nd defendant was ascending while the claimant was descending the stairs and they both met at the stairs and the 2nd defendant dragged the claimant back to the third floor for a good picture; and I so hold.
The failure to mention exactly the point at which the fictitious Mr. Hyman was and the proximity of that point to the claimant at the fateful time, is a fatal void in the defence pleading and evidence. This gives more credibility to the story of the claimant that they met at the staircase of the third floor and the claimant was dragged back up to the third floor, an open space directly to the sky, for the purpose of having more light to take the picture. Note too, that, the defence pleadings failed to tell us the cause of the claimant’s shouts or angry outbursts, which the claimant amply supplied. The pleading also failed to react to the story of the claimant that his initial encounter was with the PM, who called the 2nd defendant, his immediate supervisor. Definitely, if the claimant was sneaking out or loitering, knowing that it was wrong and that he could be dismissed or surcharged, he would not start shouting to draw attention to himself. These unexplained gaps in the defence story make their story incoherent and make the claimant’s story very stable. All these gaps in the pleadings and evidence of the defence are admissions of the essential aspects of the claimant’s pleading – see Ifeanyi Chukwu Osondu Company Limited & Anor v. Akhigbe (1999) LPELR-1433 (SC) 10-11, B-F. The evidence of the claimant, which is in tandem with his pleadings on the issue of how the accident happened, and remained solid under cross-examination, must be taken as cogent and compelling and I so hold.
From the cross-examination of CW3, Blocks C&D are on the same floor, the 3rd floor. From this, it is clear the defence lied that the claimant was at the staircase of the ground floor when the feigned Mr. Hyman wanted to take his picture. This is because, if Mr. Hyman was at the third floor, he could not have seen the claimant allegedly at the staircase of the ground floor in a three-storey building. It is common knowledge that stairs for a three storey building would not normally be in straight line, but in zigzags, for a person at the 3rd floor to see another person at the staircase of the ground floor. Morse so, since the claimant has stated exactly where he and the 2nd defendant met at the stairs, it becomes incumbent on the defendants to state exactly the relative positions of the 2nd defendant or the purported Mr. Hyman to the claimant at the time the incident happened, and not just to give a general statement that Mr. Hyman came and saw the claimant descending.
This the defence must do to enable the Court see whether it would be possible to take picture in the relative positions. Stairs are of various types. Only straight stairs would allow a person standing on one floor to see another person standing at the stair of another floor – see “How many stairs can you have before you need a landing?” at https://askinglot.com [accessed 15:54pm 05/17/2021] and “Landings in Stairs – Purpose, Location and Standard Dimensions – The Constructor” at https://theconstructor.org [accessed at 20:12pm 05/16/2021]. For three-storey building would need landings for the stairs to change directions at which intersections the person at one floor cannot see the person at the stairs of another floor. This puts the duty on the defence to explain the type of stairs that enabled the feigned Mr. Hyman to see the claimant from the third floor on the stair of the ground floor. I cannot see any substantive contradiction in the evidence of the claimant in the previous proceedings and this one that the learned defence counsel harped on. I have read page 26-27 of the previous proceedings, while I agree that there are muddled up evidence or confusion therein, it however stands out that the claimant maintained he fell from the third fall. I therefore believe the claimant’s evidence on this score and hold that the 2nd defendant is liable as pleaded and proved.
Being that the claimant has proved the liability of the 2nd defendant in the accident, the 1st defendant is automatically found liable too, on the torts of assault and battery leading to the accident in issue – see Ifeanyi Chukwu (Osondu) Company Limited v. Soleh Boneh (Nigeria) Limited [supra] 15-16, A-B. There is no argument that the 2nd defendant is servant of the 1st defendant and that, the assault and battery and the accident occurred in the course of work of both the claimant and the 2nd defendant, both employees of the 1st defendant – see Article 3(b)-(c) of the ILO C155 on the meaning of worker and workplace at www.ilo.org/dyn/normlex/en/f?p=NO [accessed 08:35am 05/15/2021].
Having done with the cause of the accident, I am now to look at the issue of negligence of the 1st defendant in the cause of the accident. This is twofold. The first aspect deals with the issue of whether the 1st defendant negligently employed the 2nd defendant with the knowledge that he was a violent person and the second is about the non-provision of adequate and appropriate safety and protective gadgets. I take the first aspect now. I dismiss it without much ado; the reason being that, CW2 testified under cross-examination that, he knew of no prior record of the 2nd defendant’s bullying and assaulting the workers of the 1st defendant and no further evidence came from any other source on this. It means there is contradiction in the evidence of CW3 [the claimant] and CW2 on this issue. The Court must come to the irresistible conclusion that the issue was not proved because, the evidence of CW2 on this issue was admission against interest – see Atuanya & Anor v. Atuchukwu & Anor (2013) LPELR-22566 (CA) 44, A-B. I therefore hold that the claimant has failed to prove negligence against the 1st defendant in recruiting and retaining 2nd defendant in its employment. I now move to the second aspect of negligence, which has to do with failure to provide appropriate and adequate safety and protective gadgets.
It is common ground that the claimant wore his helmet at the time of the accident. There is however disagreement on whether he wore safety belt to secure him. I don’t see the need for splitting the hairs on this. The defendants pleaded and gave evidence that the claimant was descending the staircase when this accident occurred. Whatever was responsible for this is irrelevant here and has been treated where it was relevant earlier on. If the claimant was descending the stair, could he still have fastened belt, even if provided with one? I am afraid, the answer looks to me to be self-evidently no. I think common sense suggests that belt is to secure a worker when actually working on a dangerous height and the claimant definitely would have unbelted when walking down the stairs, otherwise, the belt would not allow him to descend.
Though, I have held that the claimant was dragged back upstairs to the third floor for more light to take his picture, the fact remains that, he was descending when he was dragged back upstairs and could not have been successfully so dragged up, had he been belted to a trunk to secure him. A person who is belted has his movement restricted to a confined space or radius and could not be understood to be freely descending the stairs at the same time if belted. That aspect is therefore gone. Now, the focal aspect is that relating to failure to provide nets or protective railings to secure the construction site.
Here res ipsa loquitur is applicable to the issue whether there were protective railings and nets, in the absence of proof of these – see Onwuka & Anor v. Omogui (1992) LPELR-2719 (SC) 31-32, D-A. If there were, the claimant would not have fallen from the height of the third floor to the ground. At least, it is common ground that the claimant fell to the ground. But in this case, there is actual proof of the absence of these safety gadgets. The evidence of the claimant that there were no protective nets or safety railings was not controverted in any way. And what is more, the claimant tendered Exhibits CWE&CWF and CWG&CWH. Exhibits CWE&CWF showed the building under construction in issue and it is clear to any observer that the building had neither protective nets around it nor protective railings. The periphery or external perimeter of the building was clearly naked. Exhibits CWG&CWH showed what a construction site with protective nets looks like. The claimant also gave evidence of how the deadwood railings failed to stop his race downward. I hold that negligence to provide safe working environment is proved against the 1st defendant. I move to the issue of injuries.
The defendants have argued that, because, the medical report tendered did not contain all the injuries listed by the claimant, the injuries sustained are limited to the ones listed therein. They gave evidence to that effect. They even said that the claimant sustained no injury outright. Under cross-examination, CW1 testified that the 1st defendant influenced the medical report and; that, the original medical reports were collected by the 1st defendant and not tendered in this case; and that, the one tendered was obtained by her from the hospital. The medical report in question was marked Exhibit C10, in the previous proceedings. Under cross-examination on 03/02/2020, the defence counsel had called for the said exhibit to be given to the CW1 and, it was given to her. The learned counsel cross-examined CW1 on it thus, forming part of the cross-examination and record of the Court – see Omah v. The State (2017) LPELR-42745 (CA) 109-118, D-E.
I noticed that Exhibit C10 indicated in its paragraph 1 that the claimant fell from a story building, but I observed that, the defence witness DW2 had agreed that it was the 1st defendant that took the claimant to the hospital in their ambulance and not that the claimant went by himself; meaning, the information about a storey building was from the defence and not the claimant. In any case, Exhibits CWE&CWF showed clearly that the building was a three-storey building at the point in time. Besides, it is clear that the said paragraph 1 indicated that the claimant was presented in the emergency unit of the hospital; an indication that the claimant could not have been in a state of mind to start giving information to the doctors on where the accident happened. So, the report is not a reliable piece of evidence to resolve the issue of the exact point at which the claimant fell. And what is more, the defence did not say it was the claimant who himself gave the information about a storey building. And that CW2 said that the building was a storey building does not mean it was one-story building in loose language. It just means it is not a bungalow. The report indicated the claimant had minimal disk prolapse, neck and waist pains and was given bilateral skin traction and cervical collar. The report indicated further that the disc prolapse was also associated with psychological distress.
The mention of psychological distress the defence has capitalized on, under cross-examination, to say the disc prolapse could have been caused by lifting of heavy objects and; that, all the other injuries related by the claimant, since they were not contained in the report, were not suffered and; in fact that, the claimant suffered no injury at all. Let me say first of all that, the DW1 and DW2 were not there when this accident occurred and could not have given evidence of exact spot from which the claimant fell. There is evidence that other co-workers were there when this incident happened. The allegations were against specific staffers of the 1st defendant and the defence decided not to call any of the staffers directly involved nor any of the direct eyewitnesses in a case of personal injury. The evidence of the busybodies called in such instance of travesty of trial in torts cannot induce any weight in the mind of any reasonable court of law or tribunal – see Aliyu v. Ruwa (2019) LPELR-46475 (CA) 17, A-C:
“The law is trite that where a party to a case failed, refused or neglected to call a vital witness whose evidence may help the Court to decide the case one way or the other, it will be presumed that the evidence of that witness would have been unfavourable to that person who refused to call him…”
I have earlier found that the claimant fell off the third floor and gave my reasons for this. I have not found any reason to depart from this. Rather, I am more convinced. One thing I found significant is that, the claimant was presented in the hospital on January 23, 2014 and discharged February 8, 2014: that is 15 days later – see the Medical Report. Also significant is that in “Traction: Types, Risks and Aftercare – Healthline” at https://www.healthline.com [accessed 15:10 pm 05/15/2020], the Internet source said, skin tractions are used in the management of femoral fractures, while cervical collars are used in the management of spinal cord and neck injuries and are meant often for short terms – see “Cervical Collar for Neck Support: Uses, Tips, Side Effects – Healthline” at https://www.healthline.com [supra]. Could it be said in these circumstances that the claimant sustained no injury and was feigning them? I think the answer is no.
Whatever is meant by psychological distress, my own understanding is that, the adjective ‘psychological’ deals with mental and emotional feelings, as opposed to physical or actual occurrences. If the claimant was treated with cervical collar and skin traction intensively for 15 days, I do not see the basis for the medical report to say that his problem was more as a result of psychological distress than real. The report is self-contradictory in this respect; and I so hold. But, it at least, admitted that the claimant had psychological problems. I hold that his psychological problems were not feigned or from any other source, but arose from the trauma of the accident. I deduce that, since he suffered fractures related to the neck, spinal cord and cervical regions, he could not be said not to have suffered injuries. In this regard, I need to stress that, it is not the law that injuries must be proved through tendering of medical reports – see Bassey v. The State (2008) LPELR-4073 (CA) 23-24, C-B. In addition, expert report could be discountenanced in appropriate cases – see Chukwu Construction Company Limited v. Uwechia (1999) LPELR-5508 (CA) 6-9, F. So, the argument of the learned defence counsel that the claimant did not suffer any injury is hereby dismissed. The claimant clearly suffered injuries otherwise; he would not have been treated for fractures with skin tractions for femoral injuries and neck brace for spinal cord and neck injuries for 15 days in a hospital reputed to be the best in Enugu State.
But that has not settled the exact level of injury suffered. I do not agree that nail pierced the skull of the claimant and neither do I believe that he suffered fatal injuries as painted. Why? I take cognisance of the evidence of the claimant that, as he was racing forcibly down from the third floor to the ground, his forcible downward journey was intermittently interrupted by the deadwood railings, but could not be totally stopped, as the deadwood railings all gave in to the force of the fall because of their weaknesses. This is a piece of evidence against interest and must be accorded the necessary weight – Ali v. UBA Plc (2014) LPELR-22635 (CA) 33, D-F. The weight is that, the successive though, unsuccessful interceptions of the weak-wood railings on the fall, nonetheless cushioned the lethal effect of the injuries that would have been suffered, had the interceptions not taken place thus, making the claimant to suffer less than fatal injuries, but serious enough injuries to necessitate 15 days care in the best hospital in Enugu State and long checkups after discharge.
But the fact that he spent 15 days in the hospital coupled with the fact that, he had to be admitted first in the emergency section together with the fact that, he had to be going for checkups repeatedly for long after discharge together with the fact that, the first hospital could not treat him showed the seriousness of the injuries suffered. For, the evidence of DW2 under cross-examination that the claimant was taken to the Niger Foundation Hospital because of better facilities signifies that, the first hospital could not manage the injuries sustained, notwithstanding the summersault of the same DW2 that the absence of the owner of the first hospital was also the reason for the removal of the claimant to the Niger Foundation Hospital. As it is, that statement is self-contradictory. If you agree a patient was removed from the first hospital to a second, because of better facilities, you cannot turn around to say the same patient was removed because a particular doctor was not around in the first hospital.
I am of the view that even if the claimant fell from the first stair at the ground floor as alleged by the defence that does not mean he could not sustain very serious injuries; as the defence wants us to believe. He could still have sustained lethal injuries, especially where it is not that he voluntarily jumped down and was therefore on his guard and prepared his body athletically for the voluntary jump. This is an unexpected and sudden fall for which the body was not prepared. That he was removed from the first hospital to the best hospital in Enugu State and that the workers had to go on protests and that the commotion was such that, the union head was summoned to douse the situation and that the Commissioner of Police and another senior police officer had to come around, signified that the issue was a much more serious one than the defendants want to paint it. In fact, that the accident attracted mammoth crowds pointed to its seriousness.
The evidence of DW1 should be taken for what it is: that of a person who was protecting strange interest in the case. I don’t know when it has become the duty of a workers’ union leader to become an interloper on an issue that was none of his business at all and, more importantly so, that, the issue at stake did not happen in his presence. If he were a serious-minded workers’ union leader, he would have known that what he came to the Court to do was against the interest of members of his union and the interest of justice and fair play. Not being an eyewitness in a case in which eyewitnesses abound without being called by the defence, he had no business at all to come to Court to give hearsay evidence against the claimant and even to say that, a lot of workers refused to put on their safety gadgets, on an event that had many eyewitnesses that still remain staffers of the 1st defendant, but whom the 1st defendant, for reasons best known to it, refused to call.
And come to think of it, DW1 said under cross-examination he was not a safety officer when asked whether he has ever issued query to any worker for refusing to use safety gadgets. If he was not a safety officer or site supervisor, how did he know that workers were in the habit of not using their safety wears? He was just a busybody, performing the roles of useful idiot [courtesy of political science] to the defendants. I wonder how DW1 became a workers’ union leader if he did not know that it is primarily the duty of employer of labour to ensure that safety measures and gadgets are provided and are strictly complied with; and if he did not know too, that it was part of workers’ unions’ duties to sensitize workers and employers on the need for serious compliance with safety measures.
The claimant mentioned three other staffers: Mr. Jegede [a co-worker], the PM and his immediate supervisor [Mr. Lateef Abdul], while the 1st defendant mentioned an additional witness: Mr. Hyman. The 1st defendant failed to field any of these people, but went to suborn the union leader to come and lie against a member of his union who is victim of negligence of the 1st defendant: wonders would never end! And surprisingly, he was not abashed in the knowledge that CW2, a worker he is primarily to protect, was hurriedly terminated for standing firm on the issue at hand. He also failed to show what he had done to stop the purported habit of workers not putting on their safety gadgets. I think he is not the leader of the workers’ union but rather the Man Friday of the 1st defendant-employer! It is in the same manner that the evidence of DW2 should also be taken on the issue that the claimant sustained no injury at all. Done with the issue of the injuries suffered by the claimant, that completes discussions on issue 3. The claimant therefore wins issue 3 to the extent indicated above and the defendants lose. I move to issue 4.
Meanwhile, before I treat issue 4, let me make a brief digression. I observed while writing this judgment that, on January 22, 2020 the following transpired between the learned counsel to the claimant and CW1: “In paragraph 7(ii) of my additional written deposition I made mention of CTC of all documents earlier tendered and admitted by the Court in this suit. If seen they would be recognised.’ ‘Okonkwo: I wish to tender them as exhibits before this Court.” In reaction, the following came from the learned counsel to the defence: “We are opposed. We have indicated the two documents we want to oppose. I suggest they put in the two together so that we can make our objection on both at once.” The learned claimant’s counsel then replied: “I agree.” – see p. 118-119 of Proceedings File.
From the above, it is clear that the learned counsel to the defence was not opposed to all the previous documents tendered, but only the two new ones. These two are not amongst the previous documents admitted in the case but evidence of previous proceedings. It is clear too, that, the Court, instead of admitting the ones not being objection before proceeding to take the objection on the two being objected, went on to take the objection on the two documents as agreed by the learned counsel to the parties, and adjourned for ruling – p. 119-121 of Proceedings File. After delivering the ruling on the adjourned date, the Court went on with the trial without the learned counsel to the claimant adverting the Court to the need to formally admit the other documents – see p. 121-129 of Proceedings File. I found that the learned counsel to the claimant treated these pieces of documents as if they were already formally admitted by the Court and; likewise, the defence counsel, but the learned defence counsel made oblique remark at certain stage that a particular one amongst them was not re-tendered in the trial de novo.
Now, what is the effect? I think the law is that a document not admitted does not form part of the record of the Court. But the situation here is peculiar in that, these documents were actually tendered, and not objected by the other side in the this trial de novo, but inadvertently not admitted, as narrated above. And they had already been part of the records of the Court having been previously admitted. I think Order 40, Rule 1(2), becomes handy here. It provides:
“All agreed documents or other exhibits may be deemed admitted or tendered from the Bar or by the party where the party is not represented by a Counsel.”
Relying on this provision, since these documents are already with the Court being exhibits earlier admitted in the previous proceedings, which were never returned and duly tendered again without objection, I deem them admitted as originally marked C1-C17, D1&D2 in the previous proceeding. Now, Exhibit C9 is pertinent. It states at paragraph 2 thereof:
“We are informed by our clients that on the fateful day (23/1/2014), your client left his duty post at our client’s project site at the New Secretariat Complex Enugu to smoke some substance in one of the buildings under construction within the premises. Engr. Lateef Abdul of our clients’ company who was on relief duty at the site ran into him at the stair case and made to focus his camera phone on him to take a photograph of him for easy identification by the appropriate unit. He (your client) in a bid to avoid being caught on camera, misstepped, loss balance and fell…”
This is a letter from the defence solicitor to the claimant’s solicitor. From the bold and underlined portion above, it is clear the claimant and Engr. Lateeef Abdul [2nd defendant] met at the staircase as pleaded and testified by the claimant. It is also clear that, this fact was omitted in the pleadings and evidence of the defence before the Court. It is clear too, that, this fact corroborates the evidence of the claimant that the 2nd defendant [Engr. Lateef Abdul] met him at the staircase. It is also clear that, the defendants have abandoned the story that the claimant went to smoke weeds when the 2nd defendant accidentally ran into him at the staircase. The new story before the Court is that he was shouting and that it was this shout that attracted the duo of the 2nd defendant and the PM, upon which the feigned Mr. Hyman was instructed to check the cause of the noise and saw the claimant descending the stairs and attempted to photograph him and in an attempt to dodge the photograph, fell. This exhibit makes it the second instance of the defendants admitting that Engr. Lateff Abdul, as pleaded and testified by the claimant, was the one, who had encounter with the claimant the fateful day. With regards to the issue of injuries, Exhibit C1 is, picture of the claimant in the hospital with his legs completely bandaged up and also neck collar. It is definitely not a child’s play to be bandaged up in that manner.
With a modicum of discernment, one can see that the defendants are shameless liars, while the claimant has been very consistent on how the accident happened. A lot of aspects of the conflicting evidence of the defendants on this score corroborate the evidence of the claimant. I avoided treating this exhibit in the main body of issue 3 because of the circumstance of its admission, which made me to treat issue 3 first without reference to these exhibits, so that, if this exhibit is expunged at the Court of Appeal, it would still be clear that my decision on issue 3 stands without this exhibit and has to be examined and determined on its own merit. But if the Court of Appeal upholds these exhibits, it strengthens the decision reached on issue 3. Now, let me come back to issue 4.
Issue 4 is about the reliefs. I must examine them in relation to the facts of the case to see whether they are grantable, consequent to deciding all the preceding issues in favour of the claimant. There are five reliefs numbered (a)-(e). There is no problem about relief (a). The claimant is automatically entitled; and I hereby grant it. I grant relief (b) to the extent that, the damage, psychological distress, multiple fractures, shock and pains suffered by the claimant were as a result of the breach of duty of care and negligence of the defendants. I grant relief (c) and declare that, the 2nd defendant committed assault and battery against the claimant. I now move to reliefs (d)&(e), which need justifications within the legal principles guiding their award.
There are two heads of reliefs claimed therein: N5,000,000 special damages and N500,000,000 general damages. Broadly, two different principles guide the grant of either. I treat special damages first. No iota of evidence was led in support. Special damages are to be itemized and proved to the hilt – see Onyiorah v. Onyiorah & Anor (2019) LPELR-49096 (SC) 6, E-F. No shred of receipt was tendered in proof of the special damages or any iota of evidence adduced. I don’t even know what appurtenant expenses that were not particularised mean. With regard to the cost of litigation, the only aspect of it grantable in Nigeria is cost of expenses in filing and prosecuting cases and not cost of expenses incurred in retaining the services of counsel – see Adama & Anor v. PDP (2020) LPELR-49962 (CA) 23-24, E-A. And cost of litigating cases are granted as a matter of course in Nigeria to the winning party, except there is any special feature that negates its being so granted – NSITF v. Access Bank Plc (2015) LPELR-25790 (CA) 22-23, E-C. And there is no aspect in this case that negates granting the cost of litigating it successfully to the claimant. On the other hand, there is good justification for granting it.
I take note that this is an old case: about 7 seven years old. I take note too, that, it started de novo after it was heard to conclusion and judgment reserved before the untimely demise of the trial judge. I take note too, that, the claimant called three witnesses under both trials. I therefore assessed the cost at N700Thousand [Seven Hundred Thousand Naira] only; and, it is accordingly granted. I move to the issue of general damages.
This is a labour case and the ILO Conventions C155 and C190 both frowned seriously on the issues of laxity on the part of employers of labour to duties of preventing industrial accidents and the resultant injuries and violence and assaults at workplaces – see Articles 4, 7, 9(2), 16 & 20 of ILO C155. Nigeria has ratified C155 and it is applicable by virtue of S. 254C-(2) of the 1999 Constitution [as altered]. See also Article 3(a)&(e), 4 & 10(b) of ILO C190 on the need to strictly enforce breach of safety against violence and harassment at workplaces. Though, Nigeria is yet to ratify this Convention, but it is applicable by virtue of S. 254C-(1)(f)&(h) of the 1999 Constitution [as altered] as international labour standard that this nation, through the NICN, has the sacred constitutional duty to enforce as an instance of international best practices in comity with other nations in the world of labour and employment relations. The ILO has mandated that, in cases of mandatory provisions of ILO Conventions and statutory provisions giving workers positive rights or protections against violations, the damages must be punitive to dissuade future repeats of such inimical labour and employment practices – see Xavier Beaudonnet ed., International Labour Law and Domestic Law: A training manual for judges, lawyers and legal educators (Turin, International Training Centre of the ILO, 1st edition, 2010) 157, where the ILO stated the position thus:
“From an international labour law perspectives, two important aspects must be taken into account in deciding on the redress:
- The discriminatory consequences of the discrimination in employment and occupation must be eliminated;
- the penalties must have a dissuasive effect on potential perpetrators of discrimination.”
In the instant case, the defendants violated the positive provisions of ILO C155 and C190; and thus, consequently violated the constitutional provisions that positively secured international best practices in industrial relations in Nigeria and safety at workplaces – see S. 254C-(1)(a)&(f) of the 1999 Constitution [as altered]. The Supreme Court expatiated on the type of damages that meet a situation as this, in Odiba v. Azege (1998) LPELR-4465 (SC):
“…The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages, vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. [See 15, B-F]
Exemplary damages, in particular, also known as punitive or vindictive damages can apply only where the conduct of the defendant merits punishment…But exemplary damages, to some extent, are distinct from aggravated damages whereby the motive and conduct of the defendant aggravating the injury to the plaintiff would be taken into consideration in the assessment of compensatory damages…Accordingly, aggravated damages in this type of case can do most, if not all of the work that could be done by exemplary damages…” [See 25-26, D-B]
In view of the above, I have taken note that, the defendants contemptuously violated the provisions of the law as stated above and proceeded to stifle the prosecution of this case by sacking one of the witnesses because of his role as a witness in the case. They also sacked the claimant shortly after his discharge from the hospital. These examples of highhandedness must have added to the agony of the claimant and his psychological pains, trauma and despondency. I also take into consideration the fact that the claimant suffered pains, fractures and shocks. I take note too, of depreciation in the value of Naira – see African Newspaper of Nigeria Limited v. Ciroma (1995) LPELR-13834 (CA) 2—21, F-B. I however take note of the mitigating factor that the claimant did not sustain a life threatening or permanent debilitating injury, at least, with the state of the evidence before me. Let me use this opportunity to advise that, it is foolishness on the part of employers of labour in dangerous activities to want to cut cost on safety. It turns out to be pennywise, pounds foolish, when mishaps happen and lead to award of heavy damages that would dwarf the costs that would have been incurred had safety measures been well catered for. I am of the view therefore that, N10Million [Ten Million Naira Only] damages will satisfy the justice of the case in this instance; and I accordingly grant it. I grant 10% simple interest rate per annum too. The judgment has thirty days moratorium. The judgment cruises to its end.
I hereby restate the reliefs granted:
- A declaration that the defendants owe the claimant a duty of care, which they failed to uphold.
- A declaration that the damages, psychological distress, multiple fractures, shock and pains suffered by the claimant were as a result of the breach of duty of care and negligence of the defendants.
- A declaration that the 2nd defendant committed assault and battery against the claimant.
- Cost of litigation of N700,000 [Seven Hundred Thousand Naira].
- N10Million (Ten Million Naira Only] being general damages for (a), (b)&(c) above.
- 10% simple interest rate per annum on the judgment debts.
- The judgment takes effect within thirty days of its delivery.
The judgment ends. And I enter it accordingly.
HON. JUSTICE Oluwakayode Ojo AROWOSEGBE
NATIONAL INDUSTRIAL COURT OF NIGERIA