Dr. Daru & Ors V. Barrister Ibrahim Aminu Umar (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivered the Leading Judgment)

This appeal is against the decision of the Plateau State High Court of Justice Holden at Jos contained in the Ruling of Honourable Justice M. I. Sirajo delivered on the 5th day of March, 2009. The facts leading to the appeal herein is pathetic. The wife of the Respondent was indisposed in June, 2007. She visited the Jos University Teaching Hospital for treatment.

The Respondent alleged in his statement of Claim at the lower Court that at the behest of the Appellants one thing led to another. The Respondent’s wife was asked to undergo surgery operation which according to the Respondent led to the death of his wife. He consequently sued the Appellants vide his writ of Summons issued out of Plateau State High Court of Justice on 24th day of September, 2007 claiming against the defendants now Appellants jointly and severally as follows:-

“1. A declaration that the illness that the Plaintiff’s wife (Mrs Safiya Ibrahim Aminu Umar) (deceased) presented for treatment at the 6th Defendant on the 6th day of June, 2007 was common cold and not a case of ectopic pregnancy.

2. A declaration that the act of the Defendants jointly and severally in carrying out a surgery on the wife of the Plaintiff (Mrs Safiya Ibrahim Aminu Umar) (deceased) for an alleged ectopic pregnancy (which did not exist), which surgery led to her death constitutes acts of gross medical negligence.
3. A further declaration that the acts of the Defendants, jointly and severally above stated has denied the plaintiff’s wife (Mrs Safiya Ibrahim) (deceased) right to life as enshrined in Section 33 of the Constitution of the Federal Republic of Nigeria, 1999.
4. A further declaration that the acts of the Defendants above stated has denied the Plaintiff, the consortium of his wife (Mrs Safiya Ibrahim Aminu Umaru).

The sum of N10,0000,000.00 (Ten Million Naira) being and/or aggravated general damages against the Defendants jointly and severally for negligently causing the death of the Plaintiffs wife (Mrs Safiya Ibrahim Aminu Umaru).

6. The cost of this action.”

The Defendants now Appellant filed joint memorandum of Conditional Appearance in the action on 30th day of October, 2007. On 20th January, 2009 the Appellants filed Notice of Preliminary Objection against the suit of the Respondent in the following terms viz:-

“1ST – 6TH DEFENDANTS’ NOTICE OF PRELIMINARY OBJECTION

TAKE NOTICE that the Defendants herein shall raise and rely on the preliminary objection herein filed, notice whereof is hereby given as follow:-

That this Honourable Court lacks the jurisdiction to entertain this suit having regard to the provisions of section 251 (1) (p) and (r) Constitution of the Federal Republic of Nigeria, 1999, AND TAKE NOTICE that the grounds of the said object are as follows:

The 6th Defendant, Jos University Teaching Hospital is an agency of the Federal Government of Nigeria and exercises Control over the 1st – 5th Defendants.

ii. That Section 251(1) (p) and (r) of the 1999 Constitution vests exclusive jurisdiction on the Federal High Court in respect of the subject matter of this action thereby divesting this Honourable Court of jurisdiction to entertain this suit.

WHEREOF the Defendants shall urge this Honourable Court to strike out this suit as same is incompetent for want of jurisdiction.”

The Respondent did not respond to the application but sought for all adjournment when the application came up for hearing on 5th day of March, 2009. The learned trial Judge refused the Respondent’s application for adjournment and the Notice of Preliminary Objection was argued by the learned counsel to the Appellants Okwori Esq. The Learned trial Judge delivered his Ruling on the Appellants’ Notice of Preliminary Objection on the said 5th day of March, 2009.

The learned trial Judge found that it is not in doubt that the Jos University Teaching Hospital is an agency of the Federal Government having been established by that Government and that he accordingly took judicial notice of same.