Mr. Victor Olisa Ojife v Mikano International Ltd

• Judge: Hon. Justice J. D. Peters
• Judgment Date: 22 September 2016
• Respondent: Mikano International Ltd
• Appellant: Mr. Victor Olisa Ojife
• Docket Number: NICN/LA/567/2014
• Counsel: <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
• Court: National Industrial Court (Nigeria)

1. Introduction
& Claims

The Claimant
commenced this suit vide his General Form of Complaint dated 19/6/13 and
Statement of Facts dated the 1/12/13. The Claimant seeks the following reliefs
-



1. A declaration that the Defendant is
negligent and in breach of its duty of care to the
Claimant which resulted to the damage, amputation and permanent incapacitation of
the Claimant’s hand.

2. A declaration that the Claimant is
entitled to compensation for the damage, amputation
and permanent incapacitation of his hand which occurred during the course of employment with the
Defendant.

3. A declaration that the Defendant is in
breach of its contract of employment for failing
to give the mandatory one
month notice or salary in lieu of notice upon termination
of the contract of employment.


4. An order compelling the Defendant to
pay the sum of Five Million Naira (=N=5,000,000.00)
as compensation for damage amputation and permanent incapacitation of the Claimant’s hand.

5. An Order compelling the Defendant to
pay the sum of Thirty-Five Thousand Naira (=N=35,000.00)
for breach of contract for failing to give the mandatory 21 days notice of termination or salary in lieu of
notice to the Claimant.

6. An Order compelling the Defendant to
pay the Claimant the sum of Thirty-Five Thousand
Naira (=N=35,000.00) being the Claimant’s salary for the month of March 2014.

7. An Order compelling the Defendant to
refund the sum of Twenty Two Thousand Nine
Hundred and Seven Naira Fifty Kobo (=N=22,907.50) being the amount illegally deducted from the Claimant’s
February salary.



The Claimant’s
originating processes were also accompanied by a list of witness, written Statement
on Oath of his witness and list and copies of documents to be relied on at
trial. The Defendant reacted by filing a Memorandum of Appearance and Statement
of Defence dated 6/2/14 accompanying same by the Defendant’s witness written Statement
on Oath, list of documentary evidence and copies of the documents referred to
in the Statement of Defence. By Leave of the Honourable Court granted on 16/3/15,
the Defendant filed an amended Statement of Defence dated 17/2/15, Defendant’s
witness amended statement on oath sworn to on 2/4/15 and an additional list and
copies of Defendant’s documentary evidence dated of dated 16/2/15. As a result
of this, the Claimant filed an amended reply to statement of defence dated 16/4/15,
further statement on oath deposed to on 21/4/15 and Claimant’s additional list
of document dated 16/4/15.



2. Case
of the Claimant

The trial of
this case commenced on 15/9/15 when the Claimant testified as CW1, adopted his witness deposition
dated 1/2/14 as his evidence in chief as well as his further witness deposition
dated 21/4/15 as his additional testimony. Witness tendered 21 documents which
were admitted as exhibits and marked as Exh.
C1 - Exh. C21. The case for the Claimant as revealed from the pleadings is
that he was employed as a Technician by the Defendant; that the Defendant did
not provide protective gears for him to use in the discharge of his duties;
that he sustained injury to his middle finger in an accident while working for
the Defendant; that the said injury led to damage, amputation and permanent
incapacity of his hand; that the Defendant failed to discharge its duty of care
to him which led to his permanent incapacitation; that he was subsequently
dismissed from his employment by the Defendant without being paid compensation
for the damage and incapacitation and salary in lieu of notice of termination
and that the Court should order payment of compensation to him as well as
payment of one month notice in lieu of notice of termination.



Under cross
examination, CW1 stated that he was
61 years old; that was employed as a Technician; that he was a Technical
graduate; that he had been been using the machine that chopped up his hand for
about 2 years; that that was his first time of having accident on the machine;
that it was the same finger that was injured that was amputated in the
hospital; that the staff know when to remove their hands as users of the
machine; that the reports he made to the Defendant were after the accident;
that he wrote the reports personally using his right hand; that the accident
affected his left hand; that he wrote all the reports and were received by the Management;
that NCP’s Department is a Panel Control Construction Section; that he applied
to be transferred there; that he could make use of his both hands; that he was
in the hospital both as in-patient and out-patient for one week before he was
recalled but still continued to receive treatment; that the Defendant paid the
hospital bills; that he later started treating himself though he did not so inform
the Defendant after they terminated the contract of the hospital.



3. Case
of the Defendant

The Defendant
opened its defence on 8/3/16. One Olugbenga Arowosegbe was called as DW1. Witness adopted his witness
deposition dated 2/4/15 as his evidence in chief and tendered 12 documents as
exhibits. The documents were admitted without objection and marked as Exh.
D1-Exh. D12. The case for the Defendant is that it provided the Claimant with
necessary protective gears but that the Claimant refused to use same; that the
Claimant was negligent in his duty and that it is not indebted to the Claimant
in any sum at all.



Under cross
examination, witness stated that he had been working with Defendant for 3 years;
that he was not a staff of the Defendant at the time of the injury complained
of; that he was not a technician; that Exh.
C7 was never sent to the Defendant; that Exh. C11 did not get to the Head Office of the Defendant; that the
Defendant has a tradition at the Head Office when documents are received they
are registered stamped with date and time; that Claimant’s hand was not
amputated after treatment; that Claimant was transferred to Health and Safety Department so as to make
his schedule very light for him; that Claimant was not paid for March 2014
because he has not completed his exit clearance; that Claimant’s duty did not
involve carrying heavy duty equipment; that Claimant's duty involved mainly
electrical cabling; that as a Safety Officer, he was to see to the health and
safety of the environment and of other staff; that he was also to make
recommendation on safety and health issues to the Defendant; that Claimant was
compensated for the injury suffered and that the Defendant employ people with
disability to work as Technicians.



4. Submissions
on behalf of the Defendant

The final
written address of the Defendant was filed on 5/4/16. Learned Counsel set down
the following issues for determination -



1. Is the Claimant's action competent
having regards to the non-adherence with Section 2 (2) of the Employee's
Compensation Act?

2. Has the Claimant proved before the
Court that the Defendant herein was negligent?.


3. Has the Claimant proved before the
Court his disability or his entitlement to compensation
in the sum of =N=5,000,000.00 (Five Million Naira) as the compensation claimed in the Claimant’s
Statement of Fact?.



Before setting
down the issues for determination, learned Counsel put forward what he called
''Preliminary Observation''. According to Counsel, an order was made on 15/9/15
that the Claimant Counsel should oblige the Defence copies of Claimant
documentary evidence listed under Claimant's additional list of documents
specifically marked as Exh. C20 and Exh. C21; that the Defendant raised
objection at the point of tendering these exhibits on the ground that the said
exhibits were not front loaded or attached to any processes served on the
Defendant and that Claimant's Counsel refused to comply with the order of
Court. Counsel urged the Court to totally expunge Exh. C20 & Exh. C21 from the records of Court and thus
discountenance them. Counsel referred to Order
19 Rule 4, National Industrial Court Rules, 2007 & Olaniyan v. Oyewole
(2008)5 NWLR (Pt. 1079) 114.



On issue 1 as
set down for determination, learned Counsel referred to S. 2(2), Employee's Compensation Act, 2010 and
submitted...