Compagnie Generale De Geophysique Nigeria Limited V. Okparavero Memorial Hospital Limited (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, JCA (Delivering the leading Judgment)

At the High Court of Justice Delta State (the lower court for short), the respondent herein as plaintiff at the lower court filed under Undefended List, a claim of five hundred and three thousand fifteen Naira only (N503, 015.00) with interest thereon against the defendant now appellant. The subject of the claim was the alleged breach of contractual agreement between the two parties by the defendant/appellant for its failure or refusal to settle medical charges on treatment rendered on the two staff of the appellant company when they got involved in motor accident and were rushed to the plaintiff hospital and were admitted and treated at the respondent hospital even though one of the two patients by name Ebenezer Omene passed on while on admission and the other patient Daniel Majekodunmi recovered and was later discharged from the hospital.

On receipt of the court processes filed under the Undefended List, the appellant indicated its intention to defend the suit, hence the lower court transferred it to the General Cause List. In filing its defence, the defendant/appellant denied that it authorized or instructed that the two staff or any patient for that matter should be sent to the plaintiff/respondent’s hospital for treatment. It also denied ever having any medical or retainership agreement with the respondent hospital. The suit later went on full-blown trial and in the end, the lower court found in favour of the plaintiff/respondent in its considered judgment delivered on 20th April, 2004, wherein it held the defendant/appellant liable for the hospital fee claimed by the plaintiff/respondent as mentioned above, albeit, refused to award any interest on the said sum.

Aggrieved by the decision of the lower court, the defendant appealed to this court. To that effect, the appellant filed its Notice of Appeal dated 24th May, 2004 containing four grounds of appeal. Out of the four grounds of appeal, the appellant distilled two issues for the determination of the appeal as contained in its brief of argument dated 21/12/2005 and filed same day. The two issues for determination the appellant proposed are: –

(1) Whether there was enough and proper evaluation of issues and evidence to warrant the liability of Appellant to Respondent.

(2) Whether the learned trial judge relied on relevant facts and law in awarding damages.

The appellant also filed Appellants Reply Brief on 20/5/2008 dated 6th December 2007, which I will comment on later in this judgment.

On its part, the respondent, upon had been served with appellant’s brief of argument, responded by filing its own Respondent’s Brief of Argument on 25/6/2007 but dated 20/5/2007 but deemed filed 20/5/2008. In the said brief only one issue was formulated for determination of the appeal, which reads thus: –

“Whether the respondent is entitled to be paid for the medical services rendered to the acknowledged staff of the Appellant, named MR. DANIEL MAJEKODUNMI and EBENEZER OMENE (deceased).

A close look at the issues raised by the two parties left me with the view, that the first issue raised by the appellant is more-or-less the same with the sole issue raised in the respondent’s brief. They only differ in the manner they were couched. Treating the appeal in either of them will to my mind, adequately determine the questions canvassed by the parties in the appeal. The second issue raised by the appellant is also sufficiently subsumed by either of the two issues; hence it will be superfluous to consider it separately. I shall therefore in treating this appeal, be guided by the sole issue raised in the respondent’s brief in view of its elegance.

The learned appellant’s counsel submitted that in his judgment, the trial judge in one breath on page 146 of the record of appeal found that the treatment of the appellant’s staff was contractual since they were staff and there was discussion and negotiations going on between the two parties herein. The trial judge as such simply found that there was merely an invitation to treat and there was no contractual agreement between the parties on retainership as would justify the appellant to accept, admit and treat the injured staff on behalf of the appellant. But in another breath, the learned trial judge found contrarily, that there was standing oral contractual retainership agreement between the parties. He submitted that since the trial judge had admitted that the relationship between the parties was merely at the stage of invitation to treat, he should have rejected the contention of a standing contractual relationship. He said the trial judge should not have provided further facts to boost the level of relationship to a contract since it had not reached the stage of an offer, which was not there at all. He stated that in view of that, the appellant’s staff treatment stands on its own contractual plat- form and did not flow from any standing retainership agreement, as there was never any such relationship at all. See Sparkling Breweries Ltd v. UBN Ltd (2001) 15 NWLR (Pt 737) 359 or (2001) FWLR (Pt 71) 1682. Since the trial court was convinced that the relationship between the parties was nothing beyond invitation to treat and that there was no retainership agreement upon which the claim of payment was based, the only option open to the trial court was to dismiss the claim, submitted the learned appellant’s counsel. He also argued that since the court was not sure of the existence of retainership contract between the parties but was certain that the relationship between them was merely at the stage of invitation to treat, it should have found that there was no valid retainership agreement. See K.S.U.D.B V. Fanz Const. Ltd (1990) 4 NWLR (Pt l42) 1 at 44. It is also the submission of the learned appellant’s counsel that the trial court considered the core issue before, which was the treatment of the two patients which was on its own and held the appellant liable for the settlement of the bill for the said treatment simply because they were brought to the respondent’s hospital by the staff of the appellant who was even not authorized to take them to that hospital by the respondent in view of the absence of any written retainership agreement between the parties or written reference letter sent to the respondents authorizing them to treat the two patients on its behalf as should be the case and in compliance with the appropriate standard and accepted procedure in that type of situation. In the instant case, added the learned appellant’s counsel, the appellant pleaded a documentary document to show the procedure of referring patients to a hospital, which should be through a reference letter as applicable to all corporate bodies such as the present appellant. He also submitted that the staff of the appellant got involved in the accident not in the course of their official duties as the accident occurred outside the normal approved official working hours but while on their own frolics or errand and also outside the company’s premises, hence the appellants could not be held liable to pay for their treatment. See Odebunmi V. Abdullahi (1997) 2 NWLR (Pt 489) 526 at 538. While urging this court to take judicial notice of the practice in corporate bodies in referring patients to private hospitals, the learned counsel for the appellant argued that they adduced adequate evidence oral and documentary on the procedure for referring staff through reference letter and that the appellant and respondent had never previously entered into any retainership agreement and had also never referred any of its staff to the respondent hospital for treatment. He said the trial judge was therefore wrong in his finding that there was any oral retainership agreement which was also denied by them through a pleaded documentary evidence (Exhibit M) which the trial judge failed or refused to consider before arising to his conclusion based on the oral testimony of the respondent and its (respondent’s) Exhibit P which was even not pleaded and was earlier withdrawn but relied on by the learned trial judge in his finding on the existence of oral retainership agreement. He argued that parties are bound by their pleadings and any evidence, which was not pleaded, goes to no issue and must be expunged and he urged me to do same. See Nwanji V. Coastal Services (Nig.) Ltd (2004) 11 NWLR (Pt 885) 552.

It is the contention of the learned counsel for the appellant that the core issue that the trial court failed to consider and determine is the circumstance upon which the two patients were brought to the respondent hospital e.g. by who or at whose instance. The burden to trace proves that squarely lies on the plaintiff/respondent as the party that made or pleaded such issue or averment by virtue of Section 135 (1) of Evidence Act. See also UNTHMB v. Nnoli (1994) 8 NWLR (Pt 363) 376 at 403. The learned counsel to the appellants argued that there were series of contradictions in the evidence adduced by the respondent on this. For instance, in its pleadings on the name and identity of the medical advisor to the appellant, whether the two patients were brought at the same time or differently and at what intervals, the number Registration number of the ambulance that conveyed the first patient to the hospital and the name of the appellant’s medical officer(s) who brought or accompanied the patient(s) to the respondent hospital i.e. one, two or three of them? He said the evidence led by the respondent on these aspects were contradictory and conflicting with one another throughout the proceedings and that such contradictions were material to the case of the respondent. He submitted that the law is trite, that the case of a party must be consistent in order to prove same. A party would not be allowed to take one stance in his pleading and then to summersault at the trial and give or take a different stance as the respondent did in the present case in the instances mentioned supra.

He on this submission reliance was placed on the case of Ajide V. Kelani (1985) 33 NWLR (Pt 12) 248; He then said that in view of his above submissions this court should hold that the trial court ought to have rejected the evidence of the respondent with regard to who sent the two patients to respondent hospital or that they were sent there at the instance of the appellant as held by the trial court in view of the contradictions highlighted above which were not explained by the respondent. See Okeji V. Olokoba (2000) 4 NWLR (Pt 654) 513; Adebayo V. Ighodalo (1996) 5 SCNJ 23. He further argued that any evidence, which is at variance with the pleadings, indicates unfaithfulness and should be rejected. See Nnajiofor V. Okonu (No.2) (1986) 4 NWLR (Pt 36) 505.

The learned appellant’s counsel went further to submit that the respondent failed to lead evidence to show or establish the identity of the actual person who took the only surviving patient to the respondent hospital since it has the burden to adduce such evidence in proof of its allegation and the trial court failed to address such issue which the appellant’s referred to in its address. This failure so to do on the part of the trial court, according to the learned appellants’ counsel, led to miscarriage of justice, since the law is settled that presumption could be made that party who withhold or failed to lead evidence on a point which such evidence is available, the court could presume that such evidence was withheld by the party because if produced, it will be detrimental or unfavorable, to its case hence the withholding of same by it. See Section 149 (d) of Evidence Act and the case of Jallco Ltd & Anor V. Owoniboys Technical Services Ltd (1995) 4 NWLR (pt 391) 354 at 546.