Julius Berger Nigeria Plc. V. Godfry Nwagwu (2006)
LawGlobal-Hub Lead Judgment Report
RHODES-VIVOUR, J.C.A.
By way of a writ of summons filed on the 7th day of December 1999, before the Kogi State High Court holden at Ajaokuta, in Suit No: KGS/AS/8/99, the respondent as plaintiff claimed from the appellant as defendant the sum of N5m compensation for the loss of his right eye.
Alternatively the same amount for wrongful termination of employment.
Pleadings were ordered in the suit and were duly settled, filed and exchanged. At the subsequent trial, the plaintiff testified and called one witness in support of his claim. The defendant called three witnesses. A total of twenty-one documents were admitted as exhibits.
The suit was tried at the Ajaokuta High Court presided over by Hon. Justice R. Okpanachi. On the 23rd of January 2003, the Learned trial Judge gave Judgment for the plaintiff awarding N135,000:00K as General damages.
It is necessary at this stage that I set out the facts as pleaded by the parties and the findings of the learned trial Judge.
The defendant is a well known Construction Company in Nigeria. The plaintiff worked in its butchery department from sometime in 1992 until his services were terminated on the 31st of August 1999. According to the plaintiff, on the 27th of May 1997 while he was cutting meat and bones in the butchery some pieces of bones accidentally entered his eyes and he sustained injury in his right eye. He went to the defendant’s clinic for treatment, but when the personnel in the clinic could not cure the injury to his eye, he had to go to an eye clinic at Ochadamu where he was referred to Lokoja General Hospital, where he was finally referred to the Ahmadu Bello University Teaching Hospital, Kaduna. He paid for his medical expenses.
On 31st August 1999 his services were terminated, according to him because of his eye injury. The plaintiff pleaded the doctrine of res ipsa loquitur.
According to the defendant, the plaintiff’s injury was not due to their negligence, nor was it in the course of his duty to them. The defendant further averred that the plaintiff was not admitted in defendant’s clinic as alleged and there was no referral letter to Ochadamn Eye clinic.
Finally, the termination of the plaintiff’s employment was not due to his eye injury but due to the fact that the butchery department was closed down and some of the staff laid off.
In the Judgment delivered on 23/1/03 the learned trial Judge believed that the plaintiff had the accident in the course of his employment, but did not believe it was due to the defendant’s negligence. In other words the defendant did not owe the plaintiff a duty of care.
On page 48 of the record of appeal, this is what the learned trial Judge said on negligence:
“On the issue of negligence however the plaintiff in paragraph 10 of his statement of claim stated as follows:
That the injury done to the plaintiff’s right eye during the course of his employment was no fault of the plaintiff but as a result of no safety device(s) provided by the defendant particularly for the nature of plaintiff’s job.”
The learned trial Judge continued:
“As per the above what safety devices, its nature has not been proved before me. Also, the nature of the plaintiff’s job, what nature, and what is unique about plaintiff’s job, a butcher, has not been proved before me. No wonder the plaintiff close (sic) in the statement of claim anyway to rely on res ipsa loquitur.
………….
In this case, what were the acts complained of? What were the defendant’s negligence complained? If the nature and convention of a safety device for butchers have not been made known to the court.”
In the course of the Judgment the learned trial Judge went on to say:
“I believe the story of the plaintiff and PW1 that he had the said accident in the course of his employment.”
It is clear that the learned trial Judge believed that the plaintiff had the accident in the course of his employment but that the defendant was not negligent. In the concluding part of the judgment on page 49 of the record of appeal there is an obvious mix up. The learned trial Judge said:
“….. I find terminal benefits of N43,800 grossly inadequate since the deformity is a permanent one.
… As I said earlier there is no evidence before me that the plaintiff cannot see or has totally lost the right eye. I therefore award a general damage of N135,000.00K only to be paid by the defendant to the plaintiff.”
Dissatisfied with the Judgment ordering the payment of N135,000.00K to the defendant, learned counsel for the appellant filed a notice of appeal containing five grounds of appeal and in accordance with Order 6 rules 2 and 4 of the rules of this court briefs of argument were duly filed and exchanged.
Learned counsel for the appellant formulated four issues for the determination of this appeal, while learned counsel for the respondent adopted the four issues formulated by learned counsel for the appellant.
The issues are:
“1. Whether the trial court was right in awarding the sum of N135,000 as general damage for the injury to the right eye when negligence was not proved.
- Whether the learned trial Judge properly considered exhibits 19 and 20 when he held that the terminal benefits of N43,800 was inadequate and lumped the claim for compensation and claim for termination together and arbitrarily awarded N135,000.00K as general damage.
- Whether the trial court was right when it held that when the plaintiff was cutting bones on 27/5/97, pieces of bones entered his eyes as against the medical evidence that the plaintiff had herpes in 1996 and no notice of accident was given by the plaintiff on 27/5/97 as required under the Workmen’s Compensation Act of 1987.
- Whether on the totality of the evidence adduced before the trial court the Judgment is reasonable and supportable.”
On Issue No. 1 learned counsel for the appellant submitted that to succeed in the tort of Negligence the plaintiff must give particulars of negligence and prove it, and there must be a medical report about the assessment of the percentage permanent partial incapacity or permanent total incapacity. Referring to: Makwe v. Nwafor (2001) 7 SCNJ p. 98 – 99; (2001) 14 NWLR (Pt.733) 356; Igbinovia Orhue v. N.E.P.A. (1998) 5 SCNJ p. 126; (1998) 7 NWLR (Pt.557) 187. He observed that the plaintiff did not discharge the burden on him to obtain Judgment.
Arguing further learned counsel observed that the plaintiff did not report the accident on 27/5/97 as required under Section 13(1) of the Workmen’s Compensation Act of 1987 and the trial court failed to consider matters in the assessment of general damages in personal injury cases. Reference was made to:
Hanseatic International Ltd. v. M. Usang (2002) 13 NWLR (Pt. 784) p. 376.
Concluding he observed that the trial court took irrelevant factors into consideration in the award of the sum of N135,000:00K general damages and urged this Court to set aside the award and allow the appeal.
Referring to page 15 of the Record of Appeal learned counsel for the respondent argued that the respondent provided the particulars of negligence and that the doctrine of res ipsa loquitur was pleaded in the alternative. Reliance was placed on: Kuti v. Tugbobo (1967) NMLR p. 419; Flash Fixed Odds Ltd. v. Akatugba (2001) FWLR (Pt. 76) p. 709; (2001) 9 NWLR (Pt.717) 46. He submitted that the negligence of the defendant was its refusal to send plaintiff to an eye clinic, thereby not taking proper care of its staff, contending that the defendant was under a duty to provide safety materials and devices for its employees.
Concluding his argument he observed that the trial Judge was right to grant the sum of N135,000:00 compensation for the damaged eye.
On issue No.2 learned counsel for the appellant observed that the learned trial Judge lumped the claim for compensation and claim for termination together and arbitrarily awarded N135,000:00K as general damages.
Reference was made to Exhibits 19 and 20 contending that the plaintiff had been paid his full entitlements amounting to N43,800:00K.
Concluding he argued that the finding of the trial court that the terminal benefits of N43,800:00K was inadequate is perverse as Exhibits 19, 20, 21 fully calculated the terminal benefits.
He urged us to set aside the award of N135,000:00K and allow the appeal.
In his brief learned counsel for the respondent argued that the award of N135,000:00K as damages to the respondent was reasonable and not arbitrary, and that the termination of his appointment was borne out of the injury to his right eye.
On issue No.3 learned counsel for the appellant urged this court to allow the appeal and set aside the Judgment because:
(i) There was no credible evidence for the assertion of the accident of 27/5/97.
(ii) The plaintiff did not give notice of the accident as required by Section13(1) of the Workmen’s Compensation Act 1987.
(iii) There was also no application for compensation with respect to the accident made within six months from the Occurrence of the accident on 27/5/97.
Learned counsel for the respondent argued that he reported the accident to the foreman, and a report to the foreman is as good as a report to the defendant, and that the defendant deliberately refused to comply with the provisions of Workmen’s Compensation Act of 1987.
He concluded his argument, contending that the respondent’s appointment was terminated due to the eye injury.
On Issue No.4 learned counsel for the appellant submitted that when the pleadings and evidence led by both sides are considered the holding that the terminal benefits are inadequate and the award of N135,00:00K as general damages cannot be supported. He referred to: UAC of Nig. PLC v. Madam Ikole Irole (2001) 5 NWLR (Pt. 707) p. 583.
He urged this Court to set aside the award of N135,000:00K and cost of N1,500:00K and allow the appeal.
Learned counsel for the respondent observed that the Judgment is reasonable and supportable because the trial Judge took into consideration the documentary evidence adduced before it and the physical assessment of the eye before it made the award of N135,000:00K general damages. He urged us not to interfere with the award.
The claim of the plaintiff was based on the Tort of Negligence, and in paragraph 10 of the amended statement of claim particulars of Negligence were pleaded as follows:
“(i) Refusing to send plaintiff to eye specialist to be attended to by eye experts immediately the injury occurred on the 27th of May 1997.
(ii) Refusing to bear the cost of treatment in accordance with the terms and conditions for service as contained in article 14 of the Collective Agreement for Junior Workers pleaded in paragraph 8 above.”
Paragraph 21 pleaded the doctrine of res ipsa loquitur as follows:
“That the plaintiff shall rely at the trial of this suit on the doctrine of res ipsa loquitur for the injury done to his right eye during the course of his employment and his normal duties with the defendant.”
It is well settled that the burden of proving negligence is on the party alleging it, usually the plaintiff. See:
Audu v. Ahmed (1990) 5 NWLR (Pt. 150) p. 287; Strabag Construction (Nig.) Ltd. v. Ogarokpe (1991) 1 NWLR (Pt. 170) p.733; Duruji v. Azie (1992) 7 NWLR (Pt. 256) p. 688 and to obtain Judgment the plaintiff must particularize the items of Negligence in his Statement of Claim and discharge the burden to obtain Judgment.
The well laid down position of the law that the plaintiff succeeds on the strength of his case and not on the weakness of the case of the defendant is very much in focus in that where the plaintiff fails to prove his case he fails. That is to say the plaintiff must prove the particulars.
The plaintiff pleaded that after the accident on 27/5/97 when pieces of bones he was cutting struck his right eye he was admitted in the defendant’s clinic in Ajaokuta and that when the personnel in the clinic were unable to cure him of the eye injury he left for an Eye clinic at Ochadamu. He ended up in the Ahmadu Bello University Teaching Hospital’s Eye Section where according to him his right eye was medically attested to be dead. He averred that he would rely on the report on his right eye from Ahmadu Bello University Teaching Hospital.
In response the defendant pleaded that the plaintiff was never injured in its butchery on 27/5/97. He was not admitted in its clinic and there was no referral letter to Ochadamu eye clinic by the defendant.
Concluding the defendant averred it owes no duty to treat the plaintiff since he was not injured in the course of his employment and all the particulars of negligence are denied.
The primary duty of a trial Judge is to evaluate evidence and ascribe probative value to same. This is so because the Judge sees and assesses the witnesses. Where evaluation of evidence is done in accordance with all laid down principles of law the trial Judge’s findings would not be disturbed by an appeal. Court. See: Sannsi v. Makinde (1994) 5 NWLR (Pt. 343) p. 214; Ibanga v. Usanga (1982) 5 SC p. 103. The appeal court is in as good a position to evaluate evidence save in situations where the credibility of witnesses as a result of their demeanor is in issue. See: Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) p. 273; Woluehem v. Gudi (1981) 5 SC p. 291; Registered Trustees of the Apostolic Faith Mission v. James 1987 3 NWLR Pt. 61 p. 556.
In proving the particulars the burden on the plaintiff is to satisfy the court that after the accident on 27/5/97 the defendant refused to send him to an eye specialist and refused to bear the cost of treatment, and in discharging that burden he must show that the defendant was aware of his injury.
On oath the plaintiff testified as follows:
“…My foreman said that I should go to Julius Berger Clinic and I went there. They started treating me and consequently I was referred to Ochandamu clinic…”
My lords, if pleadings are to be of any value at all parties must be held bound by them. A plaintiff is bound by his pleadings and will not be allowed to set up a case different from his pleadings. See: Cardoso v. Doherty (1938) 4 WACA p. 78; Adenuga v. L.T.C. (1950) 13 WACA p. 125; Sir A. Aderemi v. J. Adedire (1966) NMLR p. 398; Adeoye v. Adeoye (1961) ANLR p. 792.
“I was referred to Ochandamu Clinic” was not pleaded. It thus goes to no issue.
The plaintiff’s evidence that he was treated at the Julius Berger Clinic was corroborated by the foreman’s testimony. The defendant’s witnesses deny that the plaintiff was treated at the Clinic for injuries he sustained to his right eye on 27/5/97. In such a situation the plaintiff establishes the fact that he was indeed treated in the defendant’s clinic if he produces an admission card etc. and documents to show that he was on admission in the clinic; Had the evidence of the plaintiff been supported by relevant documents on this issue the court would be bound to accept his version as true. This is so because where documentary evidence supports oral evidence, oral evidence becomes more credible. See: Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt 77) p. 445; Omoregbee v. Lawani (1980) 3-4 SC p. 108. The reasoning being that documentary evidence serves as a hanger from which to assess oral testimony.
It is thus clear that the plaintiff was unable to prove negligence as pleaded. The trial Judge also found that the plaintiff was unable to prove negligence. His lordship said, after referring to paragraph 10 of the Statement of claim:
“As per the above, what safety devices, its nature has not been proved before me. Also the nature of plaintiff’s job, what nature and what is unique about plaintiff’s job, a butcher, has not been proved by me. No wonder the plaintiff close (sic) in the statement of claim anyway, to rely on res Ipsa loquitur
…
In this case what were the acts complained of. What were the defendants negligence complained of if the nature and convention of a safety device for butchers have not been made known to the court?”
The Plaintiff pleaded in paragraph 10 that:
“… the injury to his right eye during the course of his employment was no fault of the plaintiff but as a result of no safety device provided by the defendant particularly for the nature of the plaintiff’s job.”
The trial Judge came to the conclusion that the plaintiff was unable to prove that the defendant was negligent, or that the defendant’s negligence caused the accident because the plaintiff did not lead evidence to show the safety device that ought to have been put in place. Indeed exhibit 20, the terms and conditions of service in Article 20 Titled Protective Clothing and Safety Equipment, it is stated that the employer shall provide protective clothing and safety equipment free of charge to employees, and a long list of employees, their job classification and the protective clothing recommended is stated therein. The defendant has no provision for protective clothing for the plaintiff (a butcher).
My lords, butchers are to be properly clothed. They are to wear Aprons and goggles while performing their duties. Conglomerates, or indeed any employer of labour ought to provide the basic essentials for the performance by the employee of his duties.
Allowing its butchers to face hazards of the trade unprotected is callous.
The doctrine of Res Ipsa Loquitur was pleaded. The trial Judge made no finding on it.
By virtue of the provisions of Section 16 of the Court of Appeal Act 1976 the Court of Appeal can properly deal with an issue even though the trial court made no pronouncement on it. This is so because the court of appeal has full jurisdiction over the whole proceeding before it, as if the proceeding had been instituted in the Court of Appeal as a court of first instance. That is to say the Court of Appeal should deal with a case the same way the trial Judge would have done.
In Orajekwe v. Mbieri (1962) 1 SCNLR p. 30 the Supreme Court held that the doctrine of res ipsa loquitur can be pleaded in the alternative to particulars of negligence. The Court held that the doctrine is raised either:
(a) by reciting the Latin Maxim, or
(b) by making it known that the plaintiff intends to rely on it as evidence of negligence.
The pleading on res ipsa loquitur was very much in order.
On res ipsa loquitur Lord Porter said in Barkway v. South Wales Transport Co. Ltd. (1950) 1 ALL E.R. p. 392 at 394 that:
“The doctrine is dependent on the absence of explanation, and although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether on the facts as established negligence is to be inferred or not.”
See: Flash Fixed Odds Ltd. v. Akatugba (2001) 9 NWLR (Pt. 717) p. 46; Eseigbe v. Agholor (1990) 7 NWLR (Pt. 161) p. 234 at 244; Niger Benue Transport Co. Ltd. v. Narumal & Sons Nig. Ltd. (1986) 4 NWLR (Pt.33) p.117; Okeke v. Obidife (1965) 1 ALL NLR p. 50; Adebisi v. Oke (1967) NMLR p. 64; Kuti v. Togbodo (1967) 1 ALL NLR p. 311.
The doctrine of res ipsa loquitur literally means:
“the thing speaks for itself”.
It is applicable to actions for injury or death caused by negligence where no proof of such negligence is required beyond the accident itself.
When the doctrine is applicable the onus of proof shifts from the plaintiff to the defendant, and the doctrine will not apply where:
(a) the facts proved are equally consistent with accident as with negligence;
(b) there is evidence of how the accident happened and the difficulty arises merely from the inability to apportion blame.
See Flash Fixed Odds Ltd. v. Akatugba (supra); Anichebe v. Onyekwe & Anor. (1965) NMLR p. 108.
Res Ipsa Loquitur does not apply when the cause of the accident is known.
My lords, on the facts pleaded in the particulars of negligence, negligence is not proved or inferred for the reasons earlier alluded to.
As regards whether the appellant owed the respondent a duty of care in providing safety clothing, equipment, is sadly resolved in favour of the appellant in that the conditions of service freely accepted by the respondent absolves the appellant from such responsibility. Res Ipsa loquitur is not applicable.
The Concluding part of the Judgment reads in part:
“…I find the terminal benefits of N43,800 grossly inadequate… As I have said earlier there is no evidence before me that the plaintiff cannot see or has totally lost his right eye. I therefore award a general damage (sic) of N135,00:00K only to be paid by the defendant to the plantiff.”
The trial Judge awarded N135,00:00 general damages because she was of the view that N43,800 terminal benefits paid to the respondent before trial was inadequate. This as quite rightly pointed out by learned counsel for the appellant is perverse.
My lords, the position of the law is that where a party as in this case, the respondent received his terminal benefits after his employment is brought to an end he cannot be heard to complain later that his contract of employment was not properly determined.
The acceptance of payment by the respondent renders the determination mutual. The trial Judge saying that N43,800 is grossly inadequate is a perverse finding and the respondent, the plaintiff in the court below asking for N5m in the alternative for wrongful termination of employment is wrong. See: DR O. Ajolore v. Kwara State College of Technology (1986) 2 SC p. 374. The trial Judge awarded N135,000:00K because she found N43,800:00K terminal benefits grossly inadequate, but in the event I am wrong which I very much doubt, general damages for personal injuries are divided into two main parts:
a) Special damage which has to be specially pleaded and proved.
This consists of out of pocket expenses and loss of earnings incurred down to the date of trial and is generally capable of substantially exact calculation;
b) Generally damages which the law implies and which is not Specially pleaded. This includes compensation for pain and suffering. See: Strabag Const. (Nig.) Ltd. v. Ogarekpe (1991) 1 NWLR (Pt. 170) p. 738.
Damages are assessed by the Court once the plaintiff successfully shows that he suffered personal Injury.
In paragraph 14 of his pleadings the respondent averred:
“14. That the plaintiff’s right eye was medically attested to be dead by the authorities of Ahmadu Bello University Teaching Hospital Kaduna as a result of the injury he sustained during his course of employment by the defendant on the 27th of May 1997, which injury he would not have sustained if the defendant had provided him with Safety device(s) to protect his eyes. Plaintiff shall at the trial rely on the report on his right eye from ABUTII Kaduna and same is hereby pleaded in evidence.”
The respondent tendered several exhibits to show he received treatment in a few hospitals including ABUTH Kaduna, but he did not tender any Medical Certificate from ARUTH Kaduna to show that his eye was dead as pleaded.
Invoking Section 149(1) of the Evidence Act the court is at liberty to draw an adverse inference in that if the Medical Certificate from ABUTH Kaduna was tendered it would have been unfavourable to the respondent’s case, that is why the respondent did not tender the Medical Certificate he said in his pleadings he would rely on to show that his eye was dead. See: Iwuchukwu v. Anyanwu (1993) 3 NWLR (Pt. 311) p.307; State v. Nnobi (1994) 5 NWLR (Pt. 345) p. 406.
The appeal court will not disturb an award of damages made by the trial court unless it is satisfied:
(a) that the trial court acted on a wrong principle; or
(b) that the amount awarded is too high or too low.
There is a clear difference between Terminal benefits and General damages.
Terminal benefits are sums of money which a party entitled to it has earned. They are sums accruable to an employee when his services are no longer required. They are easily assessed from the Agreement on Terms and conditions of employment, the Agreement that governs the contract of employment, Statute or Common Law rules.
General damages in personal injury cases are sums of money paid as compensation for the loss suffered by the injured person.
In assessing it the injured person’s station in life is not a determining factor, it is the degree of disability that counts and the court must not be too arbitrary. Awards made in similar cases within the same jurisdiction must be taken into consideration.
My lords, this is a classic case for this court to interfere in the award of general damages. It is clear that the trial Judge acted on a wrong principle as it is obvious her lordship made the award because she considered terminal benefits of N43,800:00K grossly in adequate. No Medical Certificate was produced to enable the trial Judge know the extent of the respondent’s injury.
In the further amended statement of defence on pages 22 – 24 of the Record of Appeal there is no pleading that the plaintiff had Herpes in 1996 in his right eye, yet DW2, a Nurse ill defendant’s clinic was allowed to give extensive evidence that the respondent was treated at the clinic for Herpes in 1996. I earlier alluded to the position of the law that a plaintiff is bound by his pleadings and will not be allowed to set up a case different from his pleadings. Evidence of DW2 on treatment given to the respondent for Herpes would not be considered as it goes to no issue.
The trial Judge was right to conclude that the respondent was injured at work on 27/5/97, but no duty of care was owed the respondent in view of the pleadings, and the Terms and Conditions of Service which I earlier commented on.
In sum, this appeal succeeds and it is allowed. The Judgment of the learned trial Judge awarding General damages of N135,00 together with costs of N1,500 in favour of the respondent is hereby set aside.
There shall be no order on costs.
Other Citations: (2006)LCN/1988(CA)
