Georgina Ahamefule V. Imperial Medical Center & Anor. (2004)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA  ADEREMI J.C.A.

In the court below, High Court of Lagos State, the learned trial Judge had ordered the plaintiff, now the appellant before this court to produce an ‘expert opinion’ on the risk of the plaintiff/appellant giving evidence in court on account of her Human Immuno-Deficiency (HIV) positive status. Suffice it to say that the plaintiff/appellant had taken out a writ of summons against the respondents who were defendants before that court claiming some reliefs against them for the termination of her employment on grounds of her HIV – positive status. Before hearing in the case commenced in the court below, counsel for the defendants/respondents had asked for assurances that counsel in the matter, the judge and other litigants in the court room would not be infected with HIV if the appellant, an HIV – positive, was allowed to come into the court room to give evidence.

He urged on the court to require the plaintiff/appellant to produce a medical expert who would testify on oath that other occupants of the court would not be infected with HIV if the appellant was allowed in. Suffice it to say that a motion for accelerated hearing of the case had been brought by the plaintiff/appellant. The learned trial Judge immediately ordered that an expert opinion be heard on the subject-matter either from Nigeria or from abroad.

Dissatisfied with the ruling of the court, the appellant had appealed to this court upon a notice of appeal filed on 2/4/2001 which carries two grounds of appeal. The appellant filed her brief of argument on the 23rd of April, 2002. Sequel to the filing of the appellant’s brief of argument, the respondents filed a notice of preliminary objection on 4th April, 2003 urging this court to strike out the appeal for reason of being incompetent.

The grounds upon which the notice is predicated are:
1. The appeal being against an interlocutory ruling of the court below on an order which the appellant had indicated an intention to comply with, the appellant, under the law, must seek and obtain the leave of court before filing the notice of appeal, and none was sought nor obtained.
2. That the reliefs sought are those normally sought and obtainable at the court of first instance and not at the appellate court.

The notice of preliminary objection is supported by an affidavit of 3 paragraphs and a further affidavit of 4 paragraphs. To counter the objection, the appellant has filed a 7-paragraph counter-affidavit. When this matter came before us on the 12th of February, 2004, Professor Adesanya, learned counsel for the respondents in his argument in support of the said notice of preliminary objection advanced three reasons why the appeal should be struck-out and they are according to him:-
1 . The judgment appealed against is a competent ruling – the certified true copy of which was attached as exhibit AK1 and being a consent ruling; leave of the Court below was required by virtue of section 241(2)(c) of the 1999 Constitution for a valid appeal to be entered.
2. The reliefs sought in the notice of appeal to the Court of Appeal (this court) are not in conformity with the principle that a Court of Appeal does not declare, rather it affirms or dismisses.
3. The ruling of the court below is an interlocutory one and unless it is on a point of law, leave of the court must be sought and obtained before an appeal is lodged. The grounds of appeals are at best of mixed law and facts.

He urged that the appeal be struck-out.

Mrs. Bowei in opposing the preliminary objection submitted after relying on the counter-affidavit filed on 20th June, 2003 that.
1. That the ruling sought to be appealed against is not an interlocutory one delivered with the consent of the parties. It is not a consent ruling.
2. The grounds of appeal are not of mixed law and fact grounds 1 and 2 are of pure law.
3. Reliefs 3 and 4 cannot be granted by court below as the appellant was complaining of his constitutional right of access to court.

While submitting that the appellant requires no leave of appeal she relied on (1) Afegbai v. A.-G., Edo State (2001) 14 NWLR (Pt.733) 425, (2001) FWLR (Pt. 69) 1373; Lori v. Akukalia (1998) 12 NWLR (Pt.579) 592 and Kaine v. Ojukwu (2000) 15 NWLR (Pt.691) 516, (2000) FWLR (Pt.28) 2241. She finally urged that the notice of preliminary objection be dismissed.

I shall like to preface this judgment with the facts leading to the ruling that led to the filing of a notice of appeal. Going through the records of appeal, on 5th February, 2001, the court below struck out the summons for direction dated 31/7/2000 same having been abandoned; instead an application dated 15th January, 2000 for an order of accelerated hearing of the case was moved.

Before an order granting the application was made, the learned counsel for the defendant/respondent, Prof. Adesanya urged the trial Judge before making the order to direct that a medical report be produced that the plaintiff/appellant/respondent who was confirmed H.I.V positive patient would not pass the infection to counsel, the members of the public and the presiding Honourable Judge. In response, the learned counsel for the plaintiff/appellant said it was his client’s right to give evidence in court because there was no other way to take her evidence; that it was not infectious and that he might call an expert advice in writing.

The learned senior counsel for the defendants reacted by saying that an expert was necessary to give evidence on oath in order to be cross-examined. I shall for hereunder reproduce the short ruling of the learned trial Judge; it reads:
“Having listened to the arguments of both counsel on the issue of the risk of an H.I.V patient-plaintiff giving evidence in court… I am of the opinion that the view of the learned counsel for the defendants should be respected in law in view of the fact that life has no duplicate and must be guaranteed jealously. It is hereby ordered that an expert opinion be heard on the subject-matter either from an expert in Nigeria or from any other part of the world where research had been fully carried out.”

In a reaction to this order, the learned trial Judge recorded the plaintiff/appellant’s counsel as saying:
“Counsel for the plaintiff says he is ready to bring expert from U.S.A. on the subject-matter.”

Having obtained that undertaking, the learned trial Judge thereafter adjourned the hearing to 26/3/2001 at 11 a.m. or 11.30 am after call over for that day. As I have said, it is against that ruling that the plaintiff has appealed.