George Abi V. Central Bank Of Nigeria & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A (Delivering the Leading Judgment)

The appellant as plaintiff in the Federal High Court, Abuja Judicial Division commenced a suit by writ of summons and statement of claim filed on 29/07/04 wherein he claimed with interest at the prevailing rate up to the date of judgment and thereafter until final payment as follows:-

(a) A declaration that the 1st defendant is vicariously liable to the plaintiff for medical negligence of its employed agent Abuja Clinics whose Dr. Etinam Udom negligently diagnosed, administered wrong medication which caused the plaintiff to become permanently deaf,

(b) An order directed to the defendant to pay the plaintiff N500,000,000.00 special damages and N500,000,000.00 general damages.

In response the 1st defendant filed their statement of defence on 08/11/04. The 2nd and 3rd defendants filed a joint statement on 09/12/04. The plaintiff filed a reply to the set of defendants’ statement of defence. One witness testified for the plaintiff and two witnesses for the defendants.

The facts as presented by the appellant in the court below is that on 26th day of February 2001, he took ill and at about 12 midnight was taken to the 2nd respondent, the Abuja clinic by his wife and neighbour. At Abuja clinic one of the retainer hospitals of the 1st respondent, Central Bank of Nigeria where he is a staff, he was examined, interviewed and attended to by Dr. Udom, the 3rd respondent.

His claim is that Dr. Udom negligently diagnosed, prescribed and administered to him drugs that made him deaf. He maintained he was admitted in the hospital and after the diagnosis, that he was suffering from meningitis the 2nd and 3rd respondents administered him with a variety of drugs including gentamycin which made him permanently deaf.

He was referred to Lagoon Hospital Lagos where the doctor recommended overseas surgery and treatment. He was not sent overseas by the 1st respondent but referred to Saudi clinic where he was given hearing Aid. He retired voluntarily from the Central Bank of Nigeria (CBN). The 1st respondent case is that as a staff of the bank the appellant went to Abuja clinic one of their retained hospital for treatment and was diagnosed with cerebrospinal meningitis (CSM) and admitted.

The appellant’s hospital file in the Abuja clinic shows that appellant had a three day history of fever, neck pain, waist pain and difficulty in hearing and passing of urine. During the cause of treatment, he developed CSM complications, including sight, loss of hearing, incoherent speech and loss of balance. When his condition stabilized he was seen by a consulting ENT specialist (DW2) in respect of his loss of hearing who prescribed further drugs removing gentamycin.

When he was discharged the 1st respondent sent him to Lagoon Hospital, Lagos for a second opinion because of his lack of hearing. The 2nd and 3rd respondents’ as expert witnesses, acknowledged in evidence the fact that the appellant had meningitis and profound sensory nasal hearing loss, which is the commonest complication of meningitis. At the end of the evidence of witnesses the parties filed and exchanged written address which were adopted in court.

The trial court in a reserved judgment delivered on 20/01/2007 held

“The plaintiff has failed to prove his case and his claims therefore fail and cannot then be entitle to any of these damages claimed and the case is therefore dismissed. I so order.”

The appellant being dissatisfied with the above decision of the Federal High Court caused a Notice of Appeal, containing seven grounds of appeal to be filed on 03/07/07. The 1st respondent also filed a Notice of Cross Appeal on 17/11/08. The parties through counsels filed and settled briefs of argument in accordance with the rules of court. At the hearing of the appeal on 21/03/2011. The learned counsel G.N.A. Enebeli adopted the appellants’ brief of argument settled by him and filed on 05/11/07. Also the reply brief filed 8th April 2009. Professor J.O. Fabunmi with Seus Olokegun for the 1st respondent/Cross appellant adopted the brief filed on 26/03/09 in response to the main appeal and the cross appellants brief filed on 26/03/09. He also adopted the respondent/cross appellant reply brief filed on 01/12/09 and deemed filed on 12/05/10. He urged the court to allow the appeal. Learned counsel to the 2nd and 3rd respondent adopted their brief of argument filed on 17/11/08. Mr. G.N.A. Enebeli learned counsel for the appellant in the appellants brief distilled four (4) issues from the seven grounds of appeal for determination. The four issues read thus:-

ISSUE (1)