Chief M. A. Inegbedion Vs Dr. Selo- Ojemen & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

STANLEY SHENKO ALAGOA, J.S.C.

The Appellant as Plaintiff took out a Writ of Summons against the Respondents as Defendants at the Edo High Court, Ekpoma Judicial Division claiming damages for negligence, defamation and breach of Doctor/Patient confidence. So much of the facts as are necessary and as can be gleaned from the Statement of Claim are that the Plaintiff went to the hospital of the 2nd Defendant for the purpose of having an HIV/AIDS test conducted on him and his estranged wife. The test was carried out by the 1st Defendant Dr. Selo-Ojemen, a medical doctor employed by the 2nd Defendant hospital who informed the Plaintiff that he was H.I.V. positive. He was however advised to come back to the 2nd Defendant hospital in three months time to have this test confirmed. Plaintiff then proceeded to another hospital, St. Camillus Hospital, Uromi, Edo State for another test which in fact revealed that he was H.I.V. negative. Meanwhile the confirmatory test after three months at the 2nd Defendant hospital revealed that Plaintiff was in fact H.I.V. negative. It was the allegation of the Plaintiff that the doctor/patient relationship which existed between the Plaintiff and the Defendants had been breached by the Defendants who had disclosed the result of the first test which showed that the Plaintiff was H.I.V. positive to the Plaintiff’s wife and a prophet, which prophet had attempted and failed to capitalize on Plaintiff’s medical condition to extort money from him. It was the contention of the Plaintiff that the 1st Defendant, Dr. Selo-Ojemen falsely and maliciously wrote and/or published information about the Plaintiff imputing H.I.V./AIDS to the Plaintiff which caused the Plaintiff incalculable damage and injury to his reputation and to his family and professional life. Plaintiff relied in part on RES IPSA LOQUITUR in that according to him, the 2nd Defendant hospital had failed in its duty to:

1) Provide competent staff

2) Provide adequate and efficient plant and equipment and

3) Provide a safe, efficient and effective system of work and supervision in order to discharge the duty of care owed to the Plaintiff as a patient.

The 1st Defendant doctor in so acting was an agent, servant and/or employee of the Otibhor Okhae Teaching Hospital, Irrua sued as the 2nd Defendant in this action and the 1st Defendant at all material times acted in the course of the 2nd Defendant’s business. Plaintiff therefore contended that the 2nd Defendant is vicariously liable for all the tortuous acts and omissions of the 1st Defendant which act and omissions are a treacherous grand design to perpetuate fraud on the Plaintiff hence the plaintiff’s claims against the Defendants jointly and severally. The Defendants filed a memorandum of appearance and by Motion on Notice dated the 21st June, 2001, and brought pursuant to Order 8 Rules 1 and 2 of the High Court (Civil Procedure) Rules 1988 of Bendel State as applicable in Edo State and the inherent jurisdiction of Court, prayed for “An order striking out this suit on the ground that the court lacks the jurisdiction to entertain same.”

PARTICULARS:

“The suit is not maintainable against the 2nd Defendant in that the 2nd Defendant being a Federal Government Agency, cannot be sued in this Honourable Court AND for such further order or orders as this Honourable Court may deem fit to make in the circumstance.”

It is instructive to reproduce paragraphs 3, 4 and 5 of the Affidavit in Support of this motion which read as follows:

3. That I know as a fact that the 2nd Defendant/Applicant was created by an Act of the National Assembly.
4. That being a creation of the National Assembly, it is a Federal Government Agency supervised by the Federal Ministry of Health and as such an action of this nature is not maintainable against it in this court.
5. That the 1st Defendant is an agent of the 2nd Defendant.

There is no indication from the records that the Plaintiff filed a counter-affidavit to this motion. After arguments of Counsel on both sides, the learned trial Judge Amaize J. in a considered ruling delivered on the 13th May, 2002 upheld the submission of the Defendants’ Counsel and struck out the Plaintiff’s suit for want of jurisdiction on the part of the Court.

Aggrieved by this ruling, the Plaintiff (hereinafter referred to as “the Appellant”) appealed to the Court of Appeal sitting in Benin City which by its judgment delivered on the 27th February, 2004 dismissed the appeal. This is a further appeal to the Supreme Court by a Notice of Appeal dated the 26th March, 2004.

It consists of five Grounds from which the Appellant formulated the following three issues in his Brief of Argument dated 5th July, 2004 and filed same day for determination by this court.

Issue (i) Was the Court of Appeal right in holding that the 2nd Respondent was a Federal Government Agency based on the finding that Appellant did not contradict 2nd Respondent’s affidavit evidence to that effect

(Ground 1).