Court Orders African Foundry To Pay Labourer N70.5m To For Losing Leg
The Uyo, Akwa-Ibom State division of the National Industrial Court of Nigeria (NICN) has ordered a foundry company, African Foundry Nigeria Limited, to pay a total sum of N70.5 million, to a labourer, Monday Ishmael, for losing a leg while working in the company.
The court presided over by Justice M. A. Namtari, gave the order while delivering judgment in a suit numbered NICN/UY/32/2018, filed by the labourer against the firm.
The applicant, Monday Ishmael had dragged the company before the court through his counsel, Godwin O. Effiong, asking for N50 million, being special and general damages for his suffering, when he had an industrial accident in the performance of his work for the company on January 13, 2017, which led to the amputation of his leg.
During the pendency of the suit, the claimant, opened his case on October 13, 2021, and to prove his case, he testified as Claimant Witness 1 (CW1) while his uncle, and Mr Godwin Ishmael as Claimant Witness 2 (CW2). He also tendered three exhibits, while we’re Six Photographs of his Medical Report from Milestones Clinic and Letter of Demand from Legal Aid Council of Nigeria.
The claimant in his evidence before the court said he is an employee working in the Scrap Unit of the company and being paid N1,000 daily, until January 13, 2017, when he was involved in an accident, when a pipe fell and shattered his right leg braking into pieces the knee and femurs bones.
He also told the court that after the accident occurred, he was not given proper or adequate medical care or attention as he was only taken to the hospital (Immaculate Clinic Ogunipa Port Harcourt) by his colleagues at about 9.00 am and was there till about 3.00 pm without any medical attention. He added that his elder brother, Mr Godwin Ishmael, was forced to remove him from the said clinic with the permission of the firm, to where he will get better attention.
The Claimant also told the court that he was moved to the University of Uyo Teaching Hospital on January 14, 2017 and was later taken to Milestone Specialist Clinic for further treatment as the staff of the Teaching Hospital were involved in a nationwide strike action.
He added that on January 19, 2017, his uncle, was made to sign and collect the sum of N600,000.00 Cash including N200,000.00 earlier given as transport money, as full and final settlement of all claims and compensation for the Claimant’s injury.
He also told the court that the amount was too inadequate given the fact that at the time of the industrial accident he was a little above 22 years of age and he has to live the rest of his life with this permanent disability.
In view of this state of affairs and having been abandoned by the company during his treatment, the Claimant briefed the Legal Aid Council of Nigeria, Uyo to write and demand from the Defendant in the sum of N50,000,000.00 (Fifty Million Naira) being special and general damages for permanent disability.
However, the defendant, African Foundry Nigeria Limited, through its lawyer, S. J. Efik, urged the court to dismiss claimant’s suit, adding that the claimant was never a worker in the company.
The company through one Chiamaka Okeke, Esq while testifying on February 1, 2022 as Defendant Witness 1 (DW1) and tendered two exhibits: Re: Settlement dated January 19, 2017, and Document from Emmaculate Clinic & Maternity.
The witness, in her testimony before the court, not only denying that the claimant was an employee of the firm, but also posited that it has no scrap unit or any daily paid employee as alleged by the claimant. While challenged the claimant to produce his letter of employment, pay slip or any instrument that could show that the he was an employee of the company.
The witness also told the court that the claimant is one of the persons who loaf about the gate of companies in Trans Amadi industrial Layout, seeking to provide cheap labour for some contractors and that the claimant was never engaged or employed to do any job for the defendant on January 13, 2017.
The witness further told the court that the firm’s Site Manager was drawn on that fateful day, to the fact that someone was injured by a pipe that fell off the trucks packed at the gate of the firm.
The witness said the truck was not the property of the company and the Driver of the truck was unknown as he drove off immediately accident occurred. Since he cannot identify the truck, the Claimant insisted that the truck was doing business with the defendant and enlisted the crowd to force the Defendant to treat him.
The witness told the court that her firm, out of compassion and part of its Corporate Social Responsibility (CSR), took the Claimant to a clinic in Port Harcourt and paid the Claimant N800,000.00 as full and final compensation and this is in addition to the payment of N120,000.00 as transport to Akwa Ibom State.
In the same vein, the company’s witness told the court that her firm never gave the phone numbers of its General Manager and the Admin Manager who are in Lagos to the Claimant.
The witness, described the claimant’s case as speculative and therefore liable to be dismissed.
Delivering judgment in the suit, Justice Namtari after legally weighed all the submissions of parties through their counsel and critically examined all exhibits tendered in the case, and backed with plethoras of authorites held that: “It is now imperative to consider the claim of the Claimant which is predicated on the injury sustained during the accident of 13th January, 2017 which led to the amputation of his leg. Since a claim is circumscribed by the reliefs claimed, the Claimant’s case must be circumscribed as a claim for compensation for injury in the workplace.
“Under the law, the Claimant has the option of either claiming for compensation under the common law tort of negligence or under the Employees’ Compensation Act (ECA) 2010 or any other statutory duty. See section 12 of the Employees’ Compensation Act 2010. It is obvious that from the pleadings and evidence of the Claimant, his claim does not come under the Employees’ Compensation Act (ECA) 2010 or any statutory duty or even under the common law tort of negligence. No mention is made to the Employees’ Compensation Act (ECA) 2010 or any statutes in the Claimant’s processes. For the tort of negligence, although there was a belated effort by the Claimant to impose a duty of care on the Defendant in this case, the pleadings and evidence therein cannot support the tort of negligence……
“It is the outcome of the failure of the Claimant to bring his claim within the application of these two options that led the court suo motu to frame the two issues and to invite the parties on to address the court thereof: “Whether from the pleadings and evidence adduced in this case, the plea of res ipsa loquitur is applicable.
“Whether from the pleadings and evidence adduced in this case, the principle of law, where there is a wrong there is a remedy is applicable.
“From the stand point of the claimant, the plea is applicable because apart from stating the accident occurred “when a pipe fell and shattered his right leg braking into pieces the knee and femurs bones”, the Claimant was unable to explain how the accident occurred thereby raising a prima facie case that the defendant is negligent. And given the given the unexplained facts around the event, the inference is that it could have been caused by some act of negligence on the part of the Defendant shifting the onus on the Defendant to explain and show that the accident occurred without fault on its part.
“It is therefore the contention of the claimant that the pleadings and evidence in this case have met conditions required for the application of the plea as set out in the Supreme Court case of Chudi Verdical Co. Ltd v. lfesinachi Industries Nigeria Ltd & another (2020) All FWLR (Pt. 1048) 233 (SC) to wit; the thing which caused the damage is under the control of the Defendant, the accident would not have occurred without some measure of negligence from the Defendant and there is no evidence of the accident.
“The cause of the accident has been given as “a pipe fell and shattered his right leg breaking into pieces the knee and femurs bones.” The question is, is this enough to render the plea of res ipsa loquitur inapplicable in this case? I think not. I am fortified in this stance by the more recent case of Plateau State v. Goshwe (2012) 12 S.C.N.J. 64-65. In that case, the Respondent reported himself to the Appellants, then defendant’s hospital for treatment having taken ill with pneumonia and after the administration of drugs on him he lost his hearing senses.
“In coming to the conclusion that the plea of res ipsa loquitur is applicable to the case, the Supreme Court not only referred to earlier cases of Royal Ade v. National Oil (supra), Odebunmi v. Abdullahi (supra) etc as well the English case in which the cause of the bus accident was clearly as a result of a burst tyre. This is what S. S. Alagoa, J.S.C. held at pages 64-65:
“From the foregoing, the fact that the cause of the accident in the instant case is known, is no bar to the application of the plea of res ipsa loquitur under the circumstance. I so find and hold. The effect of this finding is that it raises a rebuttable presumption of negligence of the defendant in this case which calls for an explanation or a rebuttal. How far this is done is also left to be seen.
“Having reconciled that the application of doctrines of res ipsa loquitur and ubi jus ibi remedium in favour of the Claimant, he is entitled to damages. But in what manner and quantum? The Claimant is asking for the sum of N50 million, being special and general damages for the accident which led to the amputation of his right leg. What part of this money is special or general damages, the Claimant did not say. The lumping of special and general damages together did not take into consideration the basic difference and legal implications between the two genres of damages.
“General damages are damages that the law presumes follow, from the type of wrong complained of and do not need to be specifically claimed. While special damages are damages that are alleged to have been sustained in the circumstances of a particular wrong. To be awardable, special damages must be specifically claimed and proved. See the cases of Neka Ltd v. A.C.B. (2004) 1 S.C.N.J. 218-219, Nwanji v. Coastal Services (2004) 6 S.C.N.J. 157-158, Reynolds v. Rockonoh (2005) 4 S.C.N.J. 32, Iyere vs. Bendel Feed & Flour Mills Ltd (2008) 18 NWLR (Pt.1119) 300, Arisons v. Ogun State (2009) 6 S.C.N.J. 161, Union Bank v. Chimaeze (2014) 4 S.C.N.J. 58 to mention but a few. As problematic as the lumping of these species of damages are, it is not unsurmountable to deprive the Claimant for the compensation for the injury in this case. This is in line with the decision of the Court of Appeal when faced with a similar situation in the case of Ovia South West Local Government Council & Ors v. Alhaji Raufu Adeniji (2016) All FWLR (Pt. 834) 49-50 paras. D-A, per Ogakwu, JCA:
“From a community reading of these principles which I find holistically applicable to the peculiar circumstance of this case, in which the Claimant’s leg was amputated at the prime age of about 22, I make bold to order as follows: “the Defendant shall pay to the Claimant the sum of N70,000,000.00 (Seventy Million Naira) only as damages for the loss of his leg while working for the Defendant on the 13th January, 2017.
“Cost of N500,000.00, only payable by the Defendant to the Claimant.
“The said N70 Million and cost of N500, 000, shall be paid within 30 days of this judgment, failing which they shall attract interest at 10 percent per annum.”