Grinaker L.t.a. Const. Company Limited V. Sampson Ikquot (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, JCA (Delivering the leading judgment)

The Appellant, a multinational company with South African Management, is a construction company. Not satisfied with the judgment of the Rivers State High Court (Coram: J.M. Kobani, J) directing the Appellant to pay N1,000,000.00 as general damages to the Respondent, a Nigerian and a carpenter, it lodged its notice of appeal on 6th February, 2006 with six (6) grounds of appeal.

Out of the 6 grounds of appeal, two (2) issues for determination have been formulated by the Appellant and the Respondent. They are:

1. Whether the learned trial Judge was right when he held that the Respondent had established that he was a staff of the Appellant at all times material to this case.
2. Whether the learned trial Judge was right when he held the Appellant liable for breach of Factories Act in the absence of pleading and evidence led as to defect in equipment and inadequacy of safety device.

The Respondent was the plaintiff at the trial court. The Appellant was the defendant. For ease of reference the Respondent and the Appellant shall hereinafter be referred to respectively as “the Plaintiff” and “the Defendant”.

According to the Defendant –

-the plaintiff was one of the labours supplied to the Defendant by Mr. Abuking Eddebe, carrying on business under the name and style of Budullatra Services, and as one of the labour supplied to the Defendant it became incumbent upon the staffers of the Defendant to supervise the Plaintiff.

The Plaintiff worked directly under the supervision of Mr. Mike, a South African expatriate staff of the Defendant. The site Manager, another expatriate staff, was Mr. Steve. The Plaintiff, in the pleadings, averred that he was interviewed for the Job, as a carpenter, by Mr. Steve and that he was accordingly employed, and further that when he demanded for and letter of employment Mr. Steve told him that “his letter of employment and confirmation will be given to him after six months”. The plaintiff rendered services to the Defendant until 20th November, 2002 “when he was involved in an industrial accident”. He was seriously injured. His lower lip was lacerated. His jaw bones were fractured. He lost six teeth instantly with four of them pulled off and the remaining two broken. The injury also affected his ear drums.

The cause of the injury, as pleaded by the Plaintiff, was that while he was construing a kicker on the instruction of Mr. Steve, Victor Bassey (DW.1) brought some wood and requested the Plaintiff to cut them for him using the machine that was already on. The Plaintiff was measuring the kicker for construction. All these were happening on the machine that had already been put on. Paragraph 11 of the statement of claim avers that –

11. As the plaintiff was measuring a kicker wood on the machine for construction, Victor, unknown to the Plaintiff put a wood in the machine and the machine “collected” the wood and fractured the jaw of the Plaintiff, pull out four teeth with two other broken which also affected the Plaintiff’s ear drum.

The Defendant’s reaction to paragraph 11 of the statement of claim is in paragraph 9 of the amended statement of Defence. It is as follows –

9. In further contention to paragraphs 9, 10 and 11 of the statement of claim, the Defendant shall contend that the said Victor Bassey was a co-worker to the Plaintiff and both the Plaintiff and Victor Bassey were working for Abuking Adebe, a sub-contractor, to the Defendant and that the (sic) Victor Bassey’s and Plaintiff’s names were in the certificated now 10 and 12. At the trial of this suit, the Defendant shall rely on the certificates nos 10 and 12 to establish this fact.

The amended statement of defence, though admitting that the Plaintiff, like Victor Bassey, was one of the labours supplied to the Defendant in Novotel Site as an carpenter in May 2002, was significantly silent on the fact, as pleaded by the Plaintiff, that Mr. Steve asked the Plaintiff to prepare or construct a kicker using the machine, that the machine was on when Victor Bassey came with other pieces of wood and requested the plaintiff to cut them for him using the same machine and further that it was in the process of the Plaintiffs distraction that the machines collected the wood on it and thereby violently hitting the Plaintiff on the jaw. The Defendant also did not think that they owed any persons including the labour supplied them by Abuking Edebe (a.k.a. Budallatra Services), a duty of care either while they are at their site or working on any machine thereat. The main pre-occupation of the amended statement of defence was the strenuous denial or disclaimer of the Plaintiff as their employee.

It is obvious from the pleadings that the Defendant admitted that the Plaintiff was at the Defendant’s premises at the material time and that he was given a job of constructing a kicker for the Defendant using machinery at the said premises. The Plaintiff averred that Mr. Steve, the Site Manager of the Defendant, instructed him to construct a kicker using the machine that had already been put on. All that the Defendant had to say on this is that the plaintiff, a carpenter, “was a skilled worker” and “one of the labours supplied” to them by Bullatra Services and that as such it was “incumbent upon the staffers of the Defendant to supervise the plaintiff.” The Defendant, however, did not plead how their “staffers” supervised the plaintiff in the use of the machine when Mr. Steve gave the plaintiff the job of constructing a kicker using the machine that day. There was also nothing from the amended statement of defence suggesting what measures the Defendant adopted for the security or safety of those using the machine or machinery and even those having any contact with such machine or machinery.

For the resultant injury comprising a fractured jaw, lacerated lower lip and the subsequent suture, the four teeth pulled out and the two teeth broken, the facial disfigure and the problem with both ear drums the Plaintiff claimed against the Defendant the sum of Fifty Million (N50,000,000.00) Naira. The Defendant did not dispute these injuries sustained by the Plaintiff. They also did not deny the Plaintiff’s account of the cause of the injuries. My understanding of their defence is that both the Plaintiff and Victor Bassey were not employees of the Defendant at the material time and that they deny liability for whatever negligence of the said Victor Bassey that may have caused the injuries sustained by the Plaintiff. The defence evidence laid the blame for the accident on Victor Bassey.

The Plaintiff testified as PW.1. He called as witness Ikechukwu Mgbemene (PW.2), the photographer. The Plaintiff also tendered several documents. The Defendant called two witnesses. The DW.1 was Victor Bassey. The DW.2 was one Bruce Akpori who claimed that he was the Defendant’s administrative officer. At the close of the evidence counsel on both sides put in their final addresses. Chief Asaboro for the Defendant formulated five or so issues for determination by the trial court as follows –

1. Whether plaintiff was an employee of the defendant?
2. (a) whether DW.1 (Victor Bassey) was an employee of the defendant at all times material to the case?

(b) Whether the defendant owed a duty of care to the plaintiff, and if so, whether that duty was breached by the defendant.