➥ CASE SUMMARY OF:
Josiah Danjuma v Royal Salt Ltd. & Anor. (2020) – NICN
by “PipAr” B.C. Chima
National Industrial Court of Nigeria – NICN/EN/40/2016
➥ JUDGEMENT DELIVERED ON:
Tuesday 29th September 2020
➥ AREA(S) OF LAW
Harassment at work.
➥ NOTABLE DICTA
⦿ NO LAW SAYS A RELATION CANNOT GIVE EVIDENCE
No law says a relation could not give evidence of what he knew, simply because he is related to the party in whose favour he is to give the evidence.All that is necessary, in such situation, is for the Court to warn itself of the danger of the likelihood of partisanship – see Idowu v. The State (2011) LPELR-3597 (CA) 69-70, D-B. — O.O. Arowosegbe, J.
⦿ NATIONAL INDUSTRIAL COURT IS TO UPHOLD INTERNATIONAL BEST LABOUR PRACTICES
This Court is equally bound by section 254C-(1)(f) of the 1999 Constitution [as altered] to prevent unfair labour practices and also to enforce international best practices. International best practices in labour and employment relations are found in ILO’s conventions, treaties, protocols and standards. In addition, [Violence and Harassment Convention, 2019] is actually an elaboration of section 254C-(1)(a) of the 1999 Constitution [as altered],which gives this Court jurisdiction over issues arising from workplace, particularly with regards to the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith, in conjunction with section 254C-(1)(f), which mandates this Court to prevent unfair labour practice and enforce international best practices in employment and labour relations. In essence, ILO [Violence and Harassment Convention, 2019] merely gives flesh to the dry bones of section 254C-(1)(a), (f)&(h) of the 1999 Constitution [as altered], as a mirror of international best practices, which section 254C-(1)(a), (f)&(h) of the Constitution actually envisioned. — O.O. Arowosegbe, J.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Oluwakayode Ojo Arowosegbe
⦿ FOR THE CLAIMANT
D.O. Ezeme, holding the brief of O.J. Uchena.
⦿ FOR THE DEFENDANT
V.O. Agu, holding the brief of V.C. Eneogu.
➥ CASE HISTORY
The Claimant sued and claimed, inter alia, “a declaration that the harassment, intimidation, bulling of the claimant by the 2nd defendant with the active support of the 1st defendant including kicking of the claimant in the course of the claimant’s duty in the 1st defendant by the 2nd defendant causing the claimant to fall unto a knife which slit open the claimant’s flesh at the lower abdomen and thereby causing the claimant pain, suffering, anguish, mental agony and psychological trauma as well as loss of blood which led to hospitalization of the claimant at the 1st respondent’s clinic and subsequently at God’s Power Health Clinic, opposite Police Station, NdufuEchara, Ikwo Local Government Area of Ebonyi State, is unlawful or unconstitutional.”
Against the above, the defendants filed Statement of Defence on 14th February 2017.The claimant reacted by filing Reply to the Statement of Defence on 21st March 2018. Thus, pleadings were closed.
➥ ISSUE(S) & RESOLUTION
I. Whether From The Facts Of This Case, The Court Has Jurisdiction To Hear And Determine The Case?
RULING: IN CLAIMANT’S FAVOUR.
“I do not think this issue deserves any waste of time. I agree in toto with the learned counsel to the claimant that, this Court has jurisdiction on this matter. I just wish to observe first, that, I was surprised that in discussing the jurisdiction of this Court, the learned counsel to the objector ignored the provisions of the Constitution and cited only section 11(a) of the NICA! No wonder that the NEEDLESS objection was brought at all. Constitutions and their provisions in federalisms are superior to all other laws – see First Bank of Nigeria Plc v. T.S.A. Industries Limited (2010) LPELR-1283 (SC) 74-75, F-A. Nigeria is a federal state. As ably canvassed by the learned counsel to the claimant, by virtue of section 254C-(1)(a) of the 1999 Constitution [as altered], this Court has exclusive jurisdiction over all, without exception, labour and employment disputes, notwithstanding any other contrary provisions contained in the Constitution itself.So, you cannot begin to talk of any other provisions of the Constitution than section 254C or the provisions of any other statute, as divesting this Court of jurisdiction on any matter on which section 254C of the Constitution ably conferred it with jurisdiction. It was therefore a serious ignorance of the law to argue that the National Industrial Court of Nigeria’s[NICN] jurisdiction does not extend to personal quarrels between workers in the course of their work or that, it lacks jurisdiction to grant compensations for breaches of fundamental rights in employment relations.”
“In the instant case, allegations of violence, harassment at workplace and abusive employment relations coupled with intentional refusal on the part of the employer to provide safe working environment are made. So, this Court has absolute jurisdiction over these causes by virtue of section 254C-(1)(a), (f), (g) & (h) of the 1999Constitution[as altered]and can accordingly grant the necessary reliefs by virtue of applicable ILO Conventions& standards in combination with sections 13, 14, 15 and 19(d) of the NICA, as would be shown anon– see Salami v. National Judicial Council (2014) LPELR-22774 (CA) 24-27, where the extent of the exclusive civil jurisdiction of the NICN on all manners of employment and labour matters and matters incidental thereto or arising therefrom are admirably stated.”
II. Whether the 2nd defendant was responsible for this injury, by reason of domestic violence and harassment; and whether the 1st defendant was complicit?
RULING: IN CLAIMANT’S FAVOUR.
A. “The evidence of the claimant was that, on 27th June 2016 the 2nd defendant kicked him and he fell unto a knife and thereby sustained injury in the lower part of his abdomen – see paragraph 9 of the written deposition of CW3 of 5th October 2016 [the claimant] adopted in Court 22nd May 2019. By this paragraph alone, it is not clear what led to the kicking. But a perusal of the preceding paragraph 8 showed that the cause of the kicking was the disobedience of the claimant in fetching water from the tap in the kitchen against the order of the 2nd defendant that he must always fetch water from the tap outside the apartment.”
“It follows that DW1, the sole witness for the defendants was not an eyewitness to the essential events that gave rise to the cause of action herein, though, he DW1 gave evidence that the claimant reported in writing that he slipped on water on the floor of the kitchen and fell on the edge of the sink, which impact gave him a superficial cut at the lower part of the abdomen, but said the official report was in the office!This could have been the only piece of evidence that would have tilted the scale in favour of the defendants because, documents do not lie or forget, while human beings could lie and suffer from loss of memories. The presumption, I agree with the learned counsel to the claimant, is that, the official report was hidden because its contents were unfavourable to the defendants – see Smart v. The State (2016) LPELR-40728 (SC) 18-19, C-D.The state of evidence of DW1 could not therefore induce conviction in the mind of any reasonable court of law or tribunal; and I so hold.”
B. “On the theory proposed by the learned counsel to the defendants, and which he made the centre-point of his cross-examination of CW3 that, once a knife lies flat on a surface, it could not injure a person that falls on it, I say this proposition cannot fly, for two reasons. First is that, the learned counsel failed to adduce the scientific proof of this alleged theory. Secondly, common sense suggests otherwise. It cannot be argued with any conviction that, when a person with great force and speed suddenly falls on a knife lying flat with great impacts, the impacts of the moving force of that person and weight could not trigger a change in the position of the knife to cause injury. Definitely, the great impact on the knife by the weight of the claimant is bound to disturb the equilibrium of the hitherto flat position of the knife in such a way that it could cause injury. The dynamics of forceful impacts of a weight on an object lying flat and the friction with the surfaces where it was lying cannot be a closed one that is knowable in advance with any certainty. I therefore hold that the evidence of the claimant that it was this knife that injured him after he fell on it due to the kick received from the 2nd defendant remained unassailed. I also do not see how DW1 could give evidence of the nature of the edge of the aluminium water-sink in the house of the 2nd defendant when he did not say he ever visited the house not to talk of the kitchen. Any evidence in this regard is pure perjury and; left unassailed, the evidence of the claimant that the edge of the sink in the kitchen in issue was blunt. I also wish to state here that the defence counsel misapprehended the case of the claimant by saying it was about negligence. That is not true. The facts and evidence adduced showed the case of the claimant to be that of intentional acts on the part of both the 1st and 2nd defendants.”
C. “With the knowledge of the director of the 1st defendant that the claimant raised allegations of abusive employment relations against a very senior staff, with no evidence of any action on the part of the 1st defendant that it investigated these, even if the claimant had earlier told a contrary story of lone accident, which unfortunately the defendants have failed woefully to establish, any responsible employer of labour ought immediately to have thoroughly investigated these, by at least issuing a query to the tortfeasor, if not setting up a high-powered panel of inquiry, and have the reply to the query or the report of the panel tendered at the trial. Up till now, the 1st defendant did not show that it has accosted the 2nd defendant,who is in the centre of the grievous allegations,with these allegations, not to talk of the 2nd defendant making a representation on the allegations. It has been busy manufacturing perjury-upon-perjury through its officers in protection of the 2nd defendant-tortfeasor and to suppress the case. For the umpteenth time, I wonder how DW1 could depose to the sort of evidence contained in paragraph 17 of his written deposition, when he did not claim he was an eyewitness to the allegations against the 2nd defendant; and yet failed to tender the purported official written report where the claimant said he had a lone accident and was not ashamed to say he left it in the office: the very fulcrum of the 1st defendant’s case!”
D. “This attitude of the 1st defendant is a clear evidence of proof of its complicity. It clearly shows that the 1st defendant has scarce regard for the humanity of the claimant but only treated his injuries in hospital in order to ensure that the supposed animal, that is how the 1st defendant viewed the claimant, did not die, in order to avoid the inconvenience of the law in the event that he died! This inference is easily drawn from the surrounding circumstances as narrated above, and particularly, the claimant’s statement at paragraph 7 of his second written deposition adopted in Court on 22ndMay 2019 as CW3, wherein he stated clearly that, the 1st defendant only gave him medical attention because it wanted him to soft-pedal on the issue. Though, the defendants, vides DW1 gave contrary evidence that the claimant was treated out of magnanimity, but I do not believe this piece of evidence because, if the 1st defendant had been very responsible, it would have had the allegations against the 2nd defendant thoroughly investigated.”
E. “Even if the allegations were false, which is not conceded, it shows gross irresponsibility on the part of the 1st defendant that it did nothing, absolutely nothing, to have the 2nd defendant react to the allegations. At least, no evidence of whatever it did was tendered. This gross dereliction of duty circumstantially and irresistibly point to only one fact, that the 1st defendant was complicit: period. It was not bothered on the employment welfare of the claimant. And it shows clearly, it was not bothered about providing safe and secure working environment/working relations. I therefore hold that the 1st defendant was complicit as alleged.”
F. “Let me add, before rounding up on issue 2, that, I don’t see that any issue of contributory negligence was proved. To prove that the knife was not supposed to be kept on the table, it must be shown that the purpose for which it was kept on the table was wrong or inappropriate. In any case, issue of kicking the claimant is the issue to which contributory negligence could be attached and has nothing to do with where the knife was placed. It has not being shown what the claimant contributed to the act of being kicked to sustain contributory negligence or that, he ought to take precaution not to be injured by a knife kept on the table with the knowledge that the 2nd defendant must always kick him as he fancied.”
III. Whether the Claimant is entitled to the Reliefs Sought?
RULING: IN CLAIMANT’S FAVOUR.
A. “Without doubt, the claimant is entitled to compensations for the physical injuries, psychological trauma and degradation of his dignity and inhuman treatments suffered from the defendants. The only issue is the quantum of damages.”
B. “In addition, the claimant is eminently entitled to general damages. I however take into consideration that the claimant did not suffer a permanent physical injury but I note that the trauma of being treated as subhuman, on account of his race, might linger on for life in the psyche of the claimant. It is an indelible harrowing experience. In view of all the above, I award the sum of N7million[Seven Million Naira only] as damages against the defendants jointly and severally. In further view of all the above, I hold that the claimant has sufficiently proved his case to be entitled to the reliefs claimed, except relief (e) because, the claimant has left the employment in question and I cannot see how the defendants would be in a position to continue to oppress him to warrant the grant of the prayer sought therein and relief (f), which I only granted in part. I therefore decline to grant relief (e) in its entirety.”
“In view of all that I have said and my findings above, I reiterate that, I grant all the reliefs claimed by the claimant except relief (e), which deals with restraining the defendants from further infringement of the claimant’s rights and relief (f), which I grant to the tune of N7 million [Seven Million Naira] only. I also assess the cost of this action at N500thousand. The judgment sums fall due immediately. I equally award 15% post-judgment interest rate per annum on the judgment sums until fully liquidated. Judgment is accordingly entered.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Article 1(a) of Violence and Harassment Convention, 2019 equally defines ‘violence and harassment’ in the workplace thus: “(a) the term ‘violence and harassment’ in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment…”
➥ REFERENCED (CASE)
⦿ WHEN TO AWARD EXEMPLARY OR PUNITIVE DAMAGES
In Odiba v. Azege (1998) LPELR-4465 (SC), the Supreme Court opined on the purposes of damages and when to award exemplary or punitive damages: “…The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages, vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. [See 15, B-F] Exemplary damages, in particular, also known as punitive or vindictive damages can apply only where the conduct of the defendant merits punishment…But exemplary damages, to some extent, are distinct from aggravated damages whereby the motive and conduct of the defendant aggravating the injury to the plaintiff would be taken into consideration in the assessment of compensatory damages…Accordingly, aggravated damages in this type of case can do most, if not all of the work that could be done by exemplary damages…” [See 25-26, D-B]
➥ REFERENCED (OTHERS)
Xavier Beaudonnet ed., International Labour Law and Domestic Law: A training manual for judges, lawyers and legal educators (Turin, International Training Centre of the ILO, 1st edition, 2010) at 157, where the ILO stated the position thus: “From an international labour law perspectives, two important aspects must be taken into account in deciding on the redress: 1) The discriminatory consequences of the discrimination in employment and occupation must be eliminated; 2) the penalties must have a dissuasive effect on potential perpetrators of discrimination.”