➥ CASE SUMMARY OF:
Monday Osiregbe Igenoza v Unknown Defendant & Roche Constr. (2019) – NICN
by Branham Chima (SAL).
➥ COURT:
National Industrial Court of Nigeria – NICN/ABJ/294/2014
➥ JUDGEMENT DELIVERED ON:
27th March, 2019
➥ AREA(S) OF LAW
Unknown defendant;
Employment;
Wrongful termination.
➥ PRINCIPLES OF LAW
⦿ OBJECTION IS ABANDONED WHERE NO REASON IS PROFERRED
The 2nd Defendants short of their arguing that these exhibits were wrongly admitted and that the court had power to expunge wrongly admitted evidence the Defendants did not advance any reason for their objection. This objection is therefore considered abandoned. — E.N. Agbakoba, J.
⦿ CLAIMANT CAN RELY ON EVIDENCE OF THE DEFENDANT
The position of the law is that the Claimant is entitled to rely on the evidence put forward by the Defendant. See ODUTOLA V. SANYA (2008) ALL FWLR (PT. 400) 780 AT 793, PARAS. F – G (CA) where it was held that “… if the Defendant’s evidence supports that (the case) of the Plaintiff, he is entitled to rely on same to fortify his case. See Kodilinye v. Odu (1935) 2 WACA 336; Akinola v. Oluwo (1962) 1 All NLR 224″. — E.N. Agbakoba, J.
⦿ THE LAW FOR DETERMINING A CASE IS THE LAW AS AT THE TIME CAUSE OF ACTION AROSE
The injury complained of by the Claimant occurred on 14th July 2012. This means that the cause of action arose on that said date. By OBIUWEUBI V. CBN [2011] 7 NWLR (PT. 1247) 465 the law for determining a case is the law as at the time the cause of action arose. This means that the law for determining the instant case is the Employee’s Compensation Act 2010 which replaced the Workmen’s Compensation Act. — E.N. Agbakoba, J.
⦿ COMPENSATION IS TO BE MADE TO THE NIGERIA SOCIAL INSURANCE TRUST FUND
Having determined that the Claimant’s injury was sustained in the course “of his employment with the Defendant falls clearly within the contemplation of the new Employee’s Compensation Act and thus the Claimant is entitled to requisite compensation.” Now by section 2(2) of the Employee’s Compensation Act 2010, the implementation of the Act and the Fund established under section 56 is vested in the Nigeria Social Insurance Trust Fund Management Board. It is to this Board that a deserving employee must apply for compensation. It is when the employee is dissatisfied with the decision of the Board that an appeal shall lie to this Court under section 55(4) of the Act. In addition to this the Defendant is expected under this law to be credited monthly all moneys, funds or contributions by employers for adequate compensation to employees or their dependents for any death, injury, disability or disease etc. Section 56. See also Section 33 also. There is nothing before the court to indicate that any of the pre conditions to evoking the provisions of the Employers Compensations Act have been complied with. — E.N. Agbakoba, J.
➥ LEAD JUDGEMENT DELIVERED BY:
Justice E.N. Agbakoba
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The Claimant’s case is that he was employed by the 2nd Defendant in the year 2012 as a driver and was assigned to drive a concrete mixer. That part of his duties was to drive the mixer with concrete to construction site and after work, wash the mixer’s bucket manually which was a cruel method prescribed by the company without regard to acceptable industrial safety, measure and guidelines.
Claimant averred that while he was washing the mixer as prescribed on the 14th day of July, 2012, the 1st Defendant, an employee of the 2nd Defendant, whose name has be withheld by the 2nd Defendant, kick started the mixer and trapped the Claimant right leg and grind it and as a result, the Claimant’s leg was amputated. The Claimant stated that his appointment was finally terminated without the requisite notices and payments. Hence, the Claimant therefore claimed the sum of N100, 000,000.00 (one hundred Million Naira) only as compensation for permanent deformity suffered in the cause of his employment with the 2nd Defendant plus his salaries.
➥ ISSUE(S) & RESOLUTION(S)
[CLAIMS SUCCEED, IN PART]
I. Whether the claimant who was not an employee of the 2nd Defendant at the time of his accident can make any Claim for damages for personal injury against the 2nd Defendant under the 5/4Factories Act and the Workmen Compensation Act?
RULING: IN CLAIMANT’S FAVOUR.
A. THE CLAIMANT IS AN EMPLOYEE OF THE 2ND DEFENDANT
“And looking exhibit D25 I a satisfied that the claimant was infact the Trailer Motor Boy of the Defendants as at the time of the incident. Which means the Claimants injury took place in the cause of his employment which makes it a workplace injury … Now, the fact of injury to the Claimant is not in doubt. The fact that the injury occurred at work is also not in doubt. Thus, making the injury one that is work related having occurred in the course of employment; and I so find and hold.”
.
.
II. Whether an unknown Defendant is a juristic person that can be sued and whether in the face of evidence before the court, the 2nd Defendant can be held liable in an action predicated upon the acts of the 2nd Defendant who is unknown?
RULING: IN CLAIMANT’S FAVOUR.
A. THE CLAIMANT CAN BRING A CASE AGAINST AN UNKNOWN PERSON AS IN THIS CASE
“The pronouncement of Georgewill JCA in DAVIES & ORS v. ODOFIN & ORS (2017) LPELR-41871(CA) is most apposite in this case; -“Now, to answer the question posed earlier as to the proprietary or otherwise of suing the 6th Defendant as ‘Persons Unknown’ it is essential that the legal meaning of the word ‘Person’ is clearly understood and explained albeit briefly. In law, the word ‘Person’ connotes a natural person and an artificial person and thus whenever the word ‘Person’ is used in a Statute it has always been interpreted to include both natural and artificial persons. See IBRAHIM V. JUDICIAL SERVICE COMMISSION (1998) 4 NWLR (PT. 584) 1 @ P. 35. See also AG. RIVERS STATE V. AG. BAYELSA STATE (2013) 3 NWLR (PT. 1340) 123 @P. 148; OFFOBOCHE V. OGOJA LG. (2001) 16 NWLR (PT. 739) 458; LAGOS CITY COUNCIL V. OGUNBIYI (1969) 1 ALL NLR 197; IBERO CEMENT CO. LTD. V. AG. FEDERATION (2008) 1 NWLR (PT. 1069) 470 @ PP.499-501; HASSAN V AKILU (2010) 17 NWLR (PT. 1223) 547 @P. 622; EBOIGBE V. NNPC (1994) 5 NWLR (PT. 347) 649 @P. 659; NWADIARO V SHELL PDC (1990) 5 NWLR (PT. 150) 322. In the light of the above succinct meaning of the word ‘Person’, I am of the view that in law it is quite permissible in appropriate and deserving circumstances to commence an action against a person, though existing as a natural person but, whose name or real identity is not known to the Claimant at the time instituting the action in Court.” Per GEORGEWILL, J.C.A. (Pp. 42-43, Paras. D-E).”
“In the instant case, and with reliance on DAVIES & ORS v. ODOFIN & ORS (Supra), I am satisfied that this is a proper situation in which the Claimant is entitled to bring an action against the 1st Defendant with the words ‘Unknown Person’”.
.
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III. Whether the 2nd Defendant at the time of the Claimant’s accident owed the Claimant any duty of care to warrant a claim for damages based on negligence?
RULING: IN CLAIMANT’S FAVOUR.
A. THE 2ND DEFENDANT IS LIABLE IN NEGLIGENCE
“Although the Defendant did not establish the proper manner in which the machinery ought to be cleaned particularly as Exhibit D15 the photographs of the Concrete Mixer, as observed by the Claimant were devoid of any warning signs or safety equipment as is the 2nd Defendant’s responsibility in line with the position of the law following authorities of WESTERN NIGERIA TRADING CO. LTD V. AJAO [1965] ALL NLR 524 which held that it is employer’s duty at common law is not only to provide the employee with goggles, but also to see to it that they are used. In like manner, GREEN PACK RUBBER IND. LTD V. OSSAI [2004] 2 FWLR (PT. 194) 668, as well as Section 23 of the Factories Act, 2004 enjoins that no person should be employed at any machine or in any process being a machine or process liable to cause bodily injury, unless he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed. All this as well as the employer’s liability at common law; – a general duty to take reasonable care to avoid injuring their neighbours. Which by implication means that not only do the 2nd defendants owe their employees a duty of care, they also owe passers-by a duty of care, hence dangerous equipment should be covered, concealed or cordoned off. See ADETONA V. EDET [2004] 16 NWLR (PT. 899) 338. There is, therefore, no proof that the Defendants observed any of the duties imposed on them or that their acts come within the qualification stated above. I find and hold that the Defendant is liable to the Claimant in negligence, the Claimant having proved the trilogy of duty of care, breach of the duty of care and resultant damage.”
.
.
IV. Whether the Claimant’s employment as a Trainee Excavator Operator after his accident was rightly terminated by the 2nd Defendant?
RULING: IN CLAIMANT’S FAVOUR.
A. CLAIMANT IS ENTITLED TO PAY FOR TERMINATION
“In the circumstances I find that the Claimant employment being a master servant employment relationship. The 2nd Defendant has not shown the court the agreement between them and the Claimant permitting termination without pay. The evidence before the court that the Claimants was monthly paid worker and by the provisions of Section 11(2) (c)and considering the period for which he had worked, he is entitled to 2 weeks’ notice. And Section 11(7) provides that all wages payable in money shall be paid on or before the expiry of the period of notice. Seeing as the Claimant employment is of the master servant genre the termination even where the substantially bad the law is that the termination still stands, from the date the letter of termination is given what that means is that the Claimant claim as far as it relates to payment of salary beyond 10th July 2014 cannot be granted in law, the Claimant is entitled to his salary for the month of his termination only. I find.”
.
.
.
✓ DECISION:
“There is no taking away the fact that the suffered and has lost a leg and will reminded of the accident for life. For this, and just this, I award the sum of N30 Million as damages to the Claimant against the Defendant. As a last point, I find that he Claimant is at liberty to have brought this action under common law liability in negligence, not the path of the any other Legislature which may have applied to his circumstance. On the whole, and for the avoidance of doubt, I find for the Claimant against the Defendant. The Claimant’s case succeeds. I accordingly make the following orders:
i. The sum of N30,000,000.00 (Thirty Million Naira) being compensation for permanent incapacitation/deformity of the claimant’s right knee as a result of the injury negligently inflicted on him by the 2nd Defendant in the discharge of his duties in the course of his employment with the Defendant at Owerri Imo State.
ii. The 2nd Defendant by order of this court are directed to pay the claimant his outstanding salary of N25,000.00 (Twenty Five Thousand Naira) only for the month of July 2014. Being the last month the claimant worked for the 2nd Defendant.
iii. Cost of this suit is put at N100, 000.00 (One Hundred Thousand Naira Only).”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ PURPOSE OF EXHIBITS IN A CASE
Furthermore in LAMIDI v. STATE (2016) LPELR-41320(CA), the Court of Appeal had occasion to pronounce on the purpose of exhibit in the case of Buba v. State (1992) 1 NWLR (Pt. 215) 1 at 17, per Makhtar, JCA, thus: “Exhibits are not tendered and admitted in Court for the fun of it, they are for a purpose albeit to assist in determining the relevance of the exhibits to the case. Secondly, once they form part of the record they must be examined, scrutinized and assessed for just determination of the case.” See also, Ayinde v. Salawu (1989) 3 NWLR (Pt. 109) 297 at 314 at 314-315 and R V. Ukpong (1961) 1 ALL NLR 25.” Per DANJUMA, J.C.A. (Pp. 47-48, Paras. E-B).
⦿ UNKNOWN DEFENDANT CAN BE SUED
The pronouncement of Georgewill JCA in DAVIES & ORS v. ODOFIN & ORS (2017) LPELR-41871(CA) is most apposite in this case; -“Now, to answer the question posed earlier as to the proprietary or otherwise of suing the 6th Defendant as ‘Persons Unknown’ it is essential that the legal meaning of the word ‘Person’ is clearly understood and explained albeit briefly. In law, the word ‘Person’ connotes a natural person and an artificial person and thus whenever the word ‘Person’ is used in a Statute it has always been interpreted to include both natural and artificial persons. See IBRAHIM V. JUDICIAL SERVICE COMMISSION (1998) 4 NWLR (PT. 584) 1 @ P. 35. See also AG. RIVERS STATE V. AG. BAYELSA STATE (2013) 3 NWLR (PT. 1340) 123 @P. 148; OFFOBOCHE V. OGOJA LG. (2001) 16 NWLR (PT. 739) 458; LAGOS CITY COUNCIL V. OGUNBIYI (1969) 1 ALL NLR 197; IBERO CEMENT CO. LTD. V. AG. FEDERATION (2008) 1 NWLR (PT. 1069) 470 @ PP.499-501; HASSAN V AKILU (2010) 17 NWLR (PT. 1223) 547 @P. 622; EBOIGBE V. NNPC (1994) 5 NWLR (PT. 347) 649 @P. 659; NWADIARO V SHELL PDC (1990) 5 NWLR (PT. 150) 322. In the light of the above succinct meaning of the word ‘Person’, I am of the view that in law it is quite permissible in appropriate and deserving circumstances to commence an action against a person, though existing as a natural person but, whose name or real identity is not known to the Claimant at the time instituting the action in Court.” Per GEORGEWILL, J.C.A. (Pp. 42-43, Paras. D-E).
➥ REFERENCED (OTHERS)
