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:
- That I know as a fact that the 2nd Defendant/Applicant was created by an Act of the National Assembly.
- 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.
- 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).
Issue (ii) Was the Court of Appeal right in failing to interpret and apply the proviso to paragraphs (p), (q) and (r) of S. 251 of the 1999 constitution to the facts of this case
(Grounds 2, 3 and 4).
Issue (iii) Was the Court of Appeal right in upholding the ruling of the Trial Court striking out Appellant’s claim for lack of jurisdiction in the State High Court (Ground 5).
For their part the Respondents distilled the following sole issue for determination by this Court in paragraph 3 of their Brief of Argument dated 26th May, 2006, filed on the 28th June, 2004 but deemed properly filed on the 24th January, 2007 thus –
“Whether the lower court was right in holding that in view of S. 251 (1) (p), (q) and (r) of the 1999 Constitution of the Federal Republic of Nigeria, the trial court lacked jurisdiction to entertain the suit.”
This appeal came up for hearing on the 23rd October, 2012.
Chief Michael Inegbedion appeared in person for the Appellant, adopted and relied on his Brief of Argument earlier referred to and urged us to allow the appeal, set aside the judgment of the Court below and the ruling of the trial Judge delivered on the 13th May, 2002.
E. I. Esene appearing as Counsel for the Respondents adopted and relied on the Respondents, Brief of Argument and urged us to dismiss the appeal.
I have read through the issues formulated by the parties in their respective Briefs of Argument. The issues formulated by the Appellant appear to me somewhat proliferated. From a cursory look at those issues, it becomes apparent that Issues (i) and (ii) are encapsulated and can be accommodated in Issue (iii). That appears to be the approach adopted by the Respondents who have formulated a single issue for determination of this appeal. It is in that respect that I agree with the Respondents’ contention in paragraph 3 of their (Respondents’) Brief of Argument that the sole issue formulated by them meets Issues (i), (ii) and (iii) formulated by the Appellant.
On the proliferation of issues in a Brief of Argument, the Supreme Court per Dahiru Musdapher, JSC (as he then was) in OMEGA BANK (NIG) PLC V. O.B.C. LTD. (2005) 8 NWLR (PART 928) 547 had this to say,
“This Court has on several occasions condemned the proliferation of issues in Briefs of Argument. It is not the number of issues for determination formulated that determines the quality of a brief or that determines the success of an appeal.”
See also IWOHA V. NIPOST LTD. (2003) 8 NWLR (PART 822) 308; AGU v. IKEWIBE (1991) 3 NWLR (PART 180) 385; A-G. BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PART 118) 640; UGO V. OBIEKWE (1989) 1 NWLR (PART 99) 566; ADELAJA V. FANOIKI (1990) 2 NWLR (PART 131) 137; ADISA V. THE STATE (1991) 1 NWLR (PART 168) 490.
I will and have therefore adopted the sole issue formulated by the Respondents in their Brief of Argument in determining this appeal. For the avoidance of doubt that sole issue is “Whether the lower court was right in holding that in view of S.251 (1) (p), (q), and (r) of the 1999 Constitution of the Federal Republic of Nigeria the trial court lacked the jurisdiction to entertain the Suit.”
Even at the risk of sounding repetitive, this sole issue is all encompassing covering all the three issues formulated by the Appellant in his Brief of Argument. It is at this juncture that it becomes necessary to reproduce the provisions of Section 251, (1) (p), (q) and (r):-
Section 251 (1) “Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies and …
Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this sub-section shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”
The Respondents’ submitted and the Court below so held that the Appellant’s claim fell within the purview of Section 251 (1) (p). This sub-section of Section 251 (1) it will be recollected vests the exercise of exclusive jurisdiction on the Federal High Court on matters pertaining to the administration or the management and control of the Federal Government or any of its agencies. Appellant has submitted that the onus is on the 2nd Respondent to prove that it is indeed an agency of the Federal Government as the issue of the status of the 2nd Respondent in this suit is identical with the issue of jurisdiction. For its part, the 2nd Respondent filed an affidavit in support of the motion deposing to the fact that it is a Federal Government Agency.
The Appellant never filed a Counter-Affidavit at all, talk less of one where it countered the deposition that the 2nd Respondent is an agency of the Federal Government. The Respondents’ therefore submitted that the Appellant is deemed to have admitted that the 2nd Respondent is a Federal Government Agency. It is trite law, Respondents’ Counsel submitted that where a party does not file a counter-affidavit to contradict material averments in the affidavit in support of the motion, he is deemed to have admitted them. Reference was made to the following cases:-
AGU V. NICON INSURANCE PLC (2000) 6 WRN 57 at 63; N.S.C. v. U.W.L. (2000) 22 W.R.N. 54 at 63; ONWUKA V. OWOLEWA (2001) 28 W.R.N. 89 at 106; A.G. OF ONDO STATE v. A.G. OF EKITI STATE (2001) 50 W.R.N. 1 at 31; UNIL & ORS v. OYALANA (2001) 52 W.R.N. 75.
Respondents further submitted that the case of F.M.B. V. OLLOH (2002) 97 LRCN 875 at 883 – 884 relied upon by the Appellant is inapplicable to the present situation. In that case, there was a dispute as to whether the Appellant was an agency of the Federal Government and since the Supreme Court could not find any evidence to support the Appellant’s contention that it was an agency of the Federal Government, it held that the Appellant is not an agency of the Federal Government. The Respondents could not be more right in these submissions. If it is not being canvassed by the Appellant that the 2nd Respondent ought to have exhibited a document in proof that it is indeed a Federal Government Agency and nothing in the Appellant’s Brief of Argument is suggestive of this, is it not enough that the 2nd Respondent has deposed in an affidavit that it is a Federal Government Agency The Appellant did not file a counter-affidavit to contradict this assertion and it is deemed admitted by the Appellant. This postulation of the law has indeed become sacrosanct. In ADEYINKA ABOSEDE BADEJO V. FEDERAL MINISTRY OF HEALTH (1996) 8 NWLR (PART 464) 15 the Supreme Court per Mohammed JSC said as follows:
“It is an elementary principle of law that facts contained in an affidavit form part of documentary evidence before the court. Where an affidavit is filed deposing to certain facts and the other party does not file a counter-affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed.”
See ADEKOLA ALAGBE V. HIS HIGHNESS SAMUEL ABIMBOLA & 2 ORS (1978) 2 SC 39.
A careful reading of the submissions of Counsel for the Appellant while arguing the motion brought by the Respondents for striking out shows that no references were made or arguments canvassed by the Appellant that the 2nd Respondent was not a Federal Government Agency quite apart from the fact that the Appellant did not file a Counter-Affidavit to that effect. Respondents’ Counsel would therefore appear to me to be right that at the trial Court, Respondents’ motion for striking out for want of jurisdiction by that Court was argued by both Counsel on the basis that the 2nd Respondent was a Federal Government Agency. By the same token it was not proper for the Appellant to canvass arguments that paragraph 4 of the affidavit in support of the Respondents’ motion for striking out the Suit for want of jurisdiction by that Court being a legal argument and conclusion offended against Section 87 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria 1990 and should therefore be struck out. This is because it was never an issue placed before the court below for its resolution and that court could therefore not make a pronouncement on it.
See NWOKOLO OLIKOR & ANOR V. OFILI OKONKWO & ORS (1970) ALL NLR 89; MOJEKWU V. IWUCHUKWU (2005) 11 WRN 1; CHUKWUMA OKWUDILI UEA v. AMAMCHUKWU OBIEKWE & ANOR (1989) 1 NWLR (PART 99) 556 P. 580; STANDARD CONSOLIDATED DREDGING & CONSTRUCTION CO. V. KATONCREST NIG. LTD. (1986) 5 NWLR (PART 44) 791 at 799; OKOYE V. N.C.F. CO. LTD. (1991) 6 NWLR (PART 199) 501.
The question having now been settled that the 2nd Respondent, Otibhor Okhae Teaching Hospital, Irrua is an agency of the Federal Government, the next relevant question is whether the Appellant’s claim relates to the administration or management and control of the 2nd Respondent. Paragraph 25 of the Statement of Claim is a claim in aggravated and/or exemplary damages for defamation, negligence and breach of Doctor/Patient Confidence which undoubtedly relates to the administration or management of the Otibhor Okhae Teaching Hospital, Irrua sued as the 2nd Defendant in the trial court and is the 2nd Respondent in this appeal and in the lower Court. The effect of Paragraphs (p), (q) and (r) of Section 251 (1) of the 1999 Constitution is to vest exclusive jurisdiction on the Federal High Court over all civil causes and matters in which the Federal Government or any of its agencies is a party. See NEPA V. EDEGBERO (2002) 103 LRCN 2280 at 2281 – 2282. The proviso to section 251 (1) of the 1999 Constitution does not in any way detract from the exclusive jurisdiction conferred on the Federal High Court by virtue of section 251 (1) (p), (q) and (r). Consequently the proviso cannot apply.
From the foregoing, the sole issue for determination must be resolved in favour of the Respondents against the Appellant and it is hereby so resolved. The Appeal lacks merit and is hereby dismissed. The judgment of the Court of Appeal, Benin Division delivered on the 27th February, 2004 upholding the ruling of Amaize J. of the Ekpoma High Court, Edo State delivered on the 13th May, 2002 is hereby affirmed. Parties are however to bear their own costs.
SC.92/2004