R. O. Iyere V. Bendel Feed And Flour Mill Ltd (2008)

LAWGLOBAL HUB Lead Judgment Report

I.T. MUHAMMAD, J.S.C.

The appellant herein, as plaintiff at the High Court of Edo State, holden at Ekpoma in Ekpomu judicial division, was employed by the defendant (respondent in this appeal) as SILO attendant at the defendants Feed and Flour mill at Ewu. The plaintiff claimed that on the 7th of August, 1991, he was in the course of his said employment assigned to the duty operator in the absence of the production manager and the suo superintendent to discharge a truck of fish mill along with his colleagues. The plaintiff averred that during the process of discharge there was frequent stoppage of intake of materials which he said he reported to the duty operator who confirmed to him that he was aware of the problem. The duty operator was one D. Agbator who, as usual assigned the plaintiff to clear the conveyor or running machine to check the constant stoppage of intake of materials by the running machine. Plaintiff said that he obeyed the switch operator. Plaintiff left the switch operator at the switch room and went down the mill below to clear the blockage on the instructions of the operator (employee of the defendant). While the plaintiff was downstairs clearing the blockage with his right hand, the defendant’s switch operator started running the machine without waiting for a feedback or clearance from the plaintiff and the running machine caught the plaintiffs right arm and damaged it. The plaintiff furnished particulars of the damage as follows:-

a) The right upper limb or hand suffered a fracture of the radius and transverse fracture of the ulna

b) A creep punctured wound at the dorsal aspect of the forearm

c) Bruises at anterior limb and

d) Deformity of the forearm.

As a result, plaintiff was operated upon on 8th August, 1991. The plaintiff averred that the said injuries, loss and damages were occasioned to him by reason of the negligence and or breach of duty on the part of the defendant, its servant, agents or employees. Plaintiff gave particulars of such negligence which caused him permanent deformity as he can no longer use his right hand to do any hard labour or carry a brief case or object. Plaintiff’s appointment with the defendant was later terminated on the 14th of February, 1994. Plaintiff averred that the purported termination of has employment is illegal, wrongful, unreasonable, unconstitutional and of no legal consequence. The plaintiff claims against the defendant the sum of N5,000,000.00 (Five million naira) being special and general damages.

The defendant, in its amended statement of defence denied every material, allegations contained in the plaintiff’s statement of claim save and except those facts which have been expressly and specifically admitted by it and put the plaintiff to the strictest proof of those facts denied. The defendant went further to aver that it did not assign the plaintiff to clear the conveyor or the running machine since there was no fault whatsoever and that the plaintiff was never sent by the defendant or by any of its agents to clear the alleged blockage. The plaintiff’s going down the stairs was not known to the operator of the mill and it was a sole decision taken by the plaintiff which was not authorized by the defendant and its agents. The defendant averred further that after the alleged industrial accident the plaintiff was immediately taken to Nazareth Hospital, Furgar on the same day, i.e. August 7th, 1991. He was given intensive medical treatment on the account of the defendant that by 23rd August, 1991, he was discharged from the hospital after the operation. He was however advised to be coming to Nazareth Hospital at regular intervals. He was responding to treatment. However, to the dismay of, the defendant and the management of Nazareth Hospital, the plaintiff abandoned the, medical treatment and opted for native treatment as a result of which the hospital was unable to write a final medical report on him. This made it impossible for the defendant’s insurance company to pay any compensation. The defendant placed reliance on several documents. The defendant averred in relation to the termination of plaintiff’s employment that it terminated his employment in accordance with plaintiff’s contract of service. The defendant urged the trial court to dismiss the suit as being vexatious and an abuse of process. The defendant contended that it was not liable to the plaintiff in the sum of N5,000,000.00 or any sum at all.

The suit proceeded to trial stage with both parties calling witnesses. After full hearing the learned trial judge found the suit “incompetent ab initio”. He dismissed the case.

Dissatisfied with the trial court’s decision, the appellant appealed to the court of Appeal Benin Division (court below). After having reviewed the proceedings at the trial court and submissions by respective counsel, the court below dismissed the appeal.

Aggrieved further by the decision of the court below, the appellant filed his appeal to this court.

In this court, parties filed and exchanged their respective briefs of argument.

Learned counsel for the appellant formulated two issues viz:

1. “Whether failure to join the respondent’s duty operator, one D. Agbator, as a defendant in the action against his master is fatal to the appellant’s claim see , grounds 1, 2.
2. Whether the Court of Appeal was right to dismiss the appellant’s claim founded on negligence see grounds 2”.

Learned counsel for the respondent formulated one issue which reads as follows:-