➥ CASE SUMMARY OF:
Sunday Aseidu & Ors. V Japaul Mines & Products (2019) – NICN
by Branham Chima (SAL).
National Industrial Court of Nigeria – NICN/AK/01/2016
➥ JUDGEMENT DELIVERED ON:
18th June, 2019
➥ AREA(S) OF LAW
➥ PRINCIPLES OF LAW
⦿ EXCEPTION TO DOCUMENTARY EVIDENCE BEING TENDERED BY THE MAKER
The general rule as to who can tender documentary evidence is that documentary evidence should be tendered through its maker. This is because the maker of such documents can validly answer the questions put forward with regards to the documents so his attendance may be necessary to facilitate cross-examination. See Section 91 of the Evidence Act 2011. See also the cases of Statoil Nig. Ltd v. Inducon Nig. Ltd  9 NWLR (Pt 1411) (P. 94, Paras, A-B). It is not however, at all times that documentary evidence must be tendered by the maker, as the person to whom it is made can also produce it in Court. If it can be shown to the Court by the person seeking to tender same that the maker of the document is dead or unfit by reason of his body or mental condition; that the presence of the maker of the document may also be excused if he is overseas or if it is not reasonably practicable to call him to tender the document in view of attendant expense. — O. Oyewumi, J.
⦿ MEANING OF NEGLIGENCE
Negligence is the omission or failure to do something which a reasonable man under similar circumstances can do, or the doing of something which a reasonable or prudent man would not do. More often than not, Negligence in civil matters occur in form of a breach of duty to take care. — O. Oyewumi, J.
⦿ NEGLIGENCE IS A MATTER OF FACT
In all cases in which damages is being claimed for negligence the Court is to bear it in mind that negligence is a matter of or question of fact and not law and thus a finding as of fact of the act of omission or commission of the defendant must first be made before damages could be assessed. See also M. O. Kanu & Sons Co. Ltd v. First Bank of Nigeria Plc (2006) LPELR 1797 (SC). — O. Oyewumi, J.
⦿ PROOF OF DUTY OF CARE IS REQUISITE FOR NEGLIGENCE TO SUCCEED
The authorities are replete that a successful plea of negligence consists of proving the trivet issues of duty, breach and subsequent damages. In the case of GKF Investment Nigeria Ltd v. Nigerian Telecommunications Plc  15 NWLR (Pt 1164) 34, it is settled that the particulars of the pleading the breach of a duty of care is required as stated supra and it can neither be assumed or indirect; where there is no real duty to be exercised by the defendants, negligence will have no limbs to stand and any claim articulated thereon will fail. — O. Oyewumi, J.
⦿ SCOPE OF EMPLOYER’S DUTY TO EMPLOYEE INCLUDES TAKING REASONABLE CARE
The law is of common that the scope of an employer’s duty to its employee to take reasonable care for the safety of his workman and other employee in the course of their employment, this duty extends in particular to the safety of place of work, the plant and machinery and the method and conduct of work. Duty of care as an act or omission, has its origin on the concept of foreseeability as decided in the old case of Heaven v. Pencher (1983) 11 QBD 503 at 509 where Bret M.R. said “Whenever one person is by circumstance placed in such a position with regard to another, that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger, injury to the person or property of the other, a duty arises to use ordinary care skill and avoid such danger.” — O. Oyewumi, J.
⦿ A PARTY WHO CLAIMS FOR COMPENSATION HAS TO LEAD EVIDENCE TO PROOF SAME
The law is that, issue of payment of compensation is a serious matter. It is always a head claim of its own. A party who claims for compensation has to lead evidence to prove same before a Court can decide whether to grant or not. No Court is allowed to award compensation to a party just for the asking as the Court is not a Father Christmas. In the English case of Greif (UK) Ltd & Anor. v Sienkiewicz (Administratix of Estate of Enid Costello Deceased) & Anor  LPELR – 17792 (UKSC), the Supreme Court of England said: “It is a basic principle of the law of tort that Claimant will only have cause of action if he can prove on balance of probabilities, that the defendant’s tortious conduct caused the damage in respect of which compensation is claimed. He must show that, but not for the defendant’s tortious conduct, he would not have suffered the damage…” — O. Oyewumi, J.
⦿ DEAD PERSON CAN NEITHER SUE NOR BE SUED; THE EXCEPTIONS
With respect to the claim of the 3rd claimant (now deceased). It is clear from the record of Court dated 28th of June, 2018 that the 3rd claimant in this suit is deceased and this Court by an application made on his behalf by counsel, struck out the name of the 3rd claimant. This is in view of the trite position of the law that a dead person ceases to have any legal personality from the moment of death and in such a case can neither sue nor be sued. However the exception to the general principle is where the cause of action survives the death of a party, such action cannot be terminated by the death of either party. Crbrda v Sule  6 NWLR, (PT 708), 194 AT 204. The above principle is tied around the latin maxim “action personalis moritur cum parsona” which means a personal right of action dies with the person. The Incorporated Trustees of the Jamat-ul-Muslimeen Council of Lagos & ors v Honourable Chief T.A Bankole Oki & ors  1 NWLR (PT 1176) 616 at 624. This is because the 3rd claimant’s claims are in personam which would require the presence of the claimant now deceased for the prosecution of this suit without which there cannot be any legal decision validly reached. It is upon this premise that I dismiss the claim of the 3rd claimant. — O. Oyewumi, J.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice O.O. Oyewumi
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
It is the claimants case that they were before the 15th of September, 2015 employees of the defendants. The 1st claimant stated that he was employed by the defendant as a crusher mechanic on 1st September, 2007 with basic salary of N120,000.00 per annum, that the salary was reviewed at various times, he was promoted via letters dated 29th December, 2008 and 31st May, 2010. The 2nd claimant was employed on the 7th February, 2011 as caterpillar mechanic with no letter of engagement given to him but was paid N15, 000.00 per month. The 1st claimant stated that on the 16th January, 2015, while working on the crusher, the machine severed one of the fingers to his right hand and the second finger seriously wounded, that he was taken to the hospital but was abandoned by the defendant as it only gave him N5,000.00. That upon resumption after spending three and half months at home for treatment, he asked for compensation for the expenses he incurred in respect of his hand, but was told same will be paid whenever he decides to leave the Company.
Regarding the 2nd claimant, he was involved in an accident on 7th September, 2011 after working on one of the caterpillars of the defendant as instructed by his supervisor, while climbing into the back seat of the caterpillar, the driver drove off, and he slipped and his leg entered into one of the components of the caterpillar, in the process, the last toe at his right leg got severed. He was rushed to the hospital and was later transferred to Federal Medical Centre, Owo where he was admitted. That he was without any medical attention for two days as there was no payment except for patient reference personal card, that with the effort of a doctor, the defendant deposited the sum of N10,000.00, which was the last and the only payment made by the defendant for his treatment. He stated that after spending more than a month at the hospital and could no longer pay for the medical bills, he resorted to local treatment as he had already spent N80,820.00 in the hospital. That on his return, he demanded for compensation and for refund of expenses incurred but was informed that all necessary payment will be paid whenever he decides to leave the company. That inspite of the above, the defendant terminated his employment. It is the claimants’ contention that the defendant was negligent in the way and manner it handled the safety of its staff.
The claimants approached this Court by a General Form of Complaint on 13th January, 2016 which was later amended on the 22nd of January, 2018, wherein they claimed against the defendant the following, inter alia, reliefs: A Declaration that the claimants are entitled to compensation from the defendant for the personal injuries sustained by them due to the negligence of the defendant.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether each of the claimants has been able to make out a case of negligence (or have proved the case) against the defendant as required by law to entitle them to the reliefs sought in this suit?
RULING: IN CLAIMANT’S FAVOUR.
A. THE MODE OF PROCURING THE PHOTOGRAPH IS NOT MATERIAL TO THE SUIT TO AFFECT THE ADMISSIBILITY OF THE PHOTOGRAPH
“I answer in the negative as the method of procuring exhibit OB is infinitesimal to the substance of this suit, whether or not exhibit OB is tendered does not affect the cause of justice in this case, the said exhibit as stated earlier merely depicts the extent of the injury of the claimant and nothing more. Also that the tendering of the said exhibit OB has not in any way offended the rules of the Evidence Act. The question of whether or not it was taken by the claimant himself or by Blessing or another cannot impeach the authenticity of the photographs. This is merely a technical issue for which the Court has been guided against in the cause of dispensing justice. It is true that the prime of technicality are far gone! It is equally true that at the present time, the Courts are more concerned with rendering substantial justice to the parties on the merit or otherwise of the claims before the Court. The Courts now deal more with the weightier matters of substantial justice than allowing technical or even trifling matters to ride roughshod over and above substantial justice. See the cases of UBA v Ashimina  LPELR 43858 CA; Jeric Nigeria Ltd v. Union Bank Nig Plc.  15 NWLR (Pt. 691) 477; Chief Adebili Adegbuyi v. All Progressives Congress & Ors  LPELR 22799 (CA). Niki Tobi(JSC) (Blessed memory) in Samuel Ayo Omoju v. FRN ALL FWLR (Pt.415) 1656 at1671-1672 paras. G-B.”
B. EXHIBITS RO & J1-J4 ARE ADMISSIBLE DESPITE THE MAKER NOT CALLED
“From the above, it is right to state and contrary to the argument of the claimants that Exhibits RO and J1-J4 can be admissible irrespective of whether or not the maker was called as a witness by Section 91 of the Evidence Act supra. More so, the documents in question are relevant as they seek to substantiate the defendant pleadings and to convince the Court that it indeed provided for some safety gadgets for the claimants during the course of their employment. What more, exhibit RO was tendered by DW1 one of the signatories to the said document. The question here and in this instant is not to establish the negligence of the defendants but that they are relevant and they support the pleading of the defendant with regards to their defence that it provided safety equipment for the claimant. The weight to attach to the document is a different ballgame to be decided by the Court later in this judgment. It is in the light of this, that I find that exhibits RO and J1-J4 is relevant to the fact in issue and thus forms part of the record of this Court. I so hold.” .
C. EXHIBITS J, J1, & J3 ARE UNSIGNED DOCUMENTS AND THUS NOT ADMISSIBLE
“A cue from the above decisions, shows clearly that an unsigned documents are worthless and should not merit any probative value at all. Same goes to documents procured after the accrual of the cause of action. It will be unreasonable for one to agree with the defendant that the claimants obtained safety equipment after the industrial accident sustained on 7th September, 2011 and 16th January 2015 respectively. It all cast serious doubt in the mind of the Court as to the authenticity of those documents. Consequently, I find and hold that exhibits J, J1 and J3 are unsigned documents, has no nexus or link to the defendant, they are thus unreliable, worthless piece of papers, and thus discountenanced and expunged from the record of this Court. While exhibits J2 and J4 are signed documents, to which probative value can be attached.”
D. A CASE FOR NEGLIGENCE HAS BEEN MADE OUT AND THUS SUCCEEDS
“The claimants in prove of their claim that the defendant was in breach of their duty of care called in the evidence of CW3 one Eze Kingsley, CW4 one Aminu Saliu and CW5 one Joseph Enahoro who are now former staff of the defendant but were in the employment of the defendant prior to the incident. They averred by their sworn deposition dated 13th of January, 2016 that safety gadgets were not provided by the defendant to its workers despite several demands made by them. CW3 also stated under cross-examination that the defendant did not give them safety or protective gadgets and the 2nd claimant had to buy one for himself. The CW3, CW6 and CW7 stated that the defendant gave them safety gadget after the accident occurred. The defendant in prove of its defence tendered exhibit RO and J5 which are the disengagement form where it is seen that the claimants upon disengagement returned the following items, safety shoes, hard hat and coverall on the 21st of September, 2015. (This was after the accident.).”
“It is the statement of the 1st claimant under cross-examination that “when we shot the machine down, I told him that I wanted to work on the conveyor belt and there was no light, we then put on the gen and I told Mr. Lawrence that anytime the gen set is on, he should not put on any machine, he then said he had heard”. I find it difficult to believe DWs assertion that the said Mr. Lawrence was a qualified panel operator, if he is, he would know that he was not supposed to put on the machine while the claimant was working on it. The 1st claimant’s injury was sustained because the electrician cum panel operator switched on the machine while the claimant was still working on it, otherwise, one cannot explain the hooking of the claimant’s finger inside a stationary/immobile machine if not on the carelessness of the said qualified electrician who switched it on. It is equally obvious that the defendant failed to give the claimants hand cloves, to protect first claimant’s hands.”
“From the foregoing, it is clear that the defendant does not have a safe working environment for its workers which includes the claimant for it to have in its employment an incompetent and unqualified electrician cum panel operator. There is equally no evidence on record to show that the defendant trained any of its staff on the use of the protective equipment. If it did the said electrician would not have acted negligently as he did. I also found that the defendant failed in its duty to ensure that the claimants used the protective safety gadgets given to them if any at all. The 1st claimant in my calm view and on the balance of probabilities has established before this Court that the defendants owed him a duty of care that was not exercised necessitating/resulting in the injury he sustained. It is obvious from the evidence on record that the defendant was negligent in its relationship with the 1st claimant who was its employee, the result of which he sustained an industrial injury in its employment. Consequent upon which I hold that the 1st claimant has succeeded in making out a case of negligence causing industrial accident/injury against the defendant. I so find and hold.”
“With respect to the claims of the 2nd claimant that the defendant owed him a duty of care while in its employment stated that he was not given safety gadget to work with until 2015 after his accident in 2011. In prove of his case, he called CW3 and CW4 who stated under cross examination that the defendant did not give them safety gadget and the 2nd claimant bought one for himself. The defendant admitting this argued that the 2nd claimant already has a safety shoe whether provided for by the defendant or not but that he neglected or failed to use or wear it in the day of the accident, that if he had worn it, the injury he sustained would have been avoided as the summary of his case is “when he decided to climb into the back seat of the caterpillar which was confirmed to have no back seat but a railing, the defendant should not be held liable.” The question to answer here is, does the fact that the 2nd claimant has a safety shoe absolve the defendant from exercising its duty of care to the 2nd claimant? I believe the answer is in the negative as the principle of Negligence is one of a strict liability, the principle of duty of care on the employer, does not shift except where it has done all that is necessary in ensuring the safety of the employee, the employee fails to comply. This is a matter of fact, which has to be proven by the employer. Assuming but I am not conceding that the 2nd claimant as contended by the defendant that he failed to wear the boots he bought for himself on the day of the accident, what appropriate sanctions measures has the defendant put in place to ensure that erring staff on safety measures comply to the standard of safety precautions rules, none to the knowledge of this Court. To provide a safety equipment without ensuring the use of it by the employer, is like a cripple who requires a wheel chair to move around, has a wheel chair but could not use it because there is no one to put him on it or drive him around with it. The defendant in this suit has relied on exhibit RO defendant disengagement form in defence of their case that it provided safety gadget for the 2nd claimant. A careful study of the exhibit discloses that it was procured after the accident, secondly, it has nothing on it to prove that 2nd claimant was given any protective gadgets. What I found on it is safety shoes and hard hat. It has failed to canvass evidence to prove that the 2nd claimant was given safety equipment and was strictly instructed to wear them before the accident rather it aligns with the evidence of CW3 when he stated that they were issued safety tools after the accident of the claimants. The defendant has not vide any scintilla of evidence revealed to this Court that it was not negligent to relieve it of its liability. The general requirement of the law where there exists a service relationship between employer and employee is that the former is under a duty to take reasonable care for the safety of the latter in all the circumstances of the case so as not to expose him to an unnecessary risk.”
E. MONETARY COMPENSATION
“I believe that no monetary award can return back their body part severed as it were, however, it will not be out of place to award a certain reasonable compensation in the circumstance to enable them take care of themselves and family, what is reasonable is the sum of N2, 500,000,000 ( Two Million, Five hundred thousand Naira) each as compensation to the 1st and 2nd claimants, I find protection in Section 19(d) of National Industrial Court Act, 2006 which empowers this Court to in the circumstances of this case award compensation. Accordingly, I award the sum of N2,500,000,000 (Two million, five hundred thousand Naira) each as compensation to the 1st and 2nd claimants. I so find and hold.”
“In all, I find that claimant’s case succeeds in the most part and thus I make these declarations and orders- That the claimants have succeeded in making out a case of negligence causing industrial accident/injury against the defendant. That the claimants are entitled to compensation from the defendant for the injuries they sustained while in the employ of the defendant. That the claimants are entitled to the sum of N2,500,000 (Two Million, five hundred thousand Naira) each to be paid by the defendant. That the 3rd claimant (now deceased) claims fail. That the claimants claim for the sum of N1,000,000,000.00 (One billion Naira) for the physical indescribable pains suffered by the claimants fail. All the judgment sums are to be paid within 30 days failing which it is to attract 10% interest per annum. I award N50,000 each as cost to the claimants. Judgment is accordingly entered.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 23 of the Factory’s Act Cap F1 LFN 2007, provides: “No person should be employed or allowed to work on any machine of process liable to cause bodily injury, unless he has been fully instructed as the dangers likely to arise in connection therewith and the precautions to be taken or observed, or must be under adequate supervisions of a person who has a thorough knowledge and experience of the machine.”
➥ REFERENCED (CASE)
⦿ DOING SUBSTANTIAL JUSTICE IN ALL CASES
Niki Tobi(JSC) (Blessed memory) in Samuel Ayo Omoju v. FRN ALL FWLR (Pt.415) 1656 at1671-1672 paras. G-B; espoused on doing substantial justice in all cases quipped thus – Substantial justice, which is actual and concrete justice, is justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law. It pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law.
⦿ UNSIGNED DOCUMENT IS A WORTHLESS PIECE OF PAPER
In the case of Uzokwelu v. PDP & Ors  LPELR- 43737CA, The law is settled that an unsigned document is a worthless paper. It is inadmissible and where admitted, it cannot be relied upon by the Court to resolve any controversy between the parties as no weight or probative value can be attached to an unsigned document.
⦿ UNSIGNED DOCUMENTS NOT ADMISSIBLE
The Supreme Court in Omega Bank (Nig) Plc v. O.B.C. Ltd.  8 NWLR (Part 928) 547 at 587 Paragraphs C – D per Tobi, JSC (as he then was) the Apex Court held inter alia that: “… It is my view that where a document is not signed, it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its maker….at page 582 Paragraph A, His Lordship, Tobi, JSC of blessed memory further emphasized that:” A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious…”
➥ REFERENCED (OTHERS)