Miss Adepeju Adefarasin V. Dr. Yasser Dayekh & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

KEKERE-EKUN, J.C.A.

The appellant herein as plaintiff instituted an action against the 1st respondent as defendant at the Kano State High Court by a writ of summons dated 30/7/99. The particulars of claim as indorsed on the writ of summons at page 2 of the printed record are as follows:

“The defendant purports to carry out business as a Dentist at TAHIR DENTAL CENTRE at Tukur Road, Nassarawa Quarters, Kano.

Unknown to the plaintiff the defendant is not a registered Dentist with the Nigerian Medical Council and therefore not licensed to practice Dentistry in Nigeria.

On or about the 15th day of June 1998 the plaintiff called at the defendant’s Dental Centre and was attended to by the defendant.

The defendant having listened to the plaintiff’s complaint informed the plaintiff that some of her teeth will be extracted and some of them trimmed to enable the fitting of a permanent denture. He claimed that he would have to fit in a dental crown on the canine teeth, replace the missing teeth with a permanent denture and trim the other teeth to enable a permanent denture to be fitted for the plaintiff.

The defendant negligently trimmed the teeth of the plaintiff to the extent that no permanent denture can now be fitted on them. The trimming of the teeth itself caused the plaintiff such pain, injury and damage that in the circumstances the plaintiff has to travel out of Nigeria to get treatment and correction to the damage done to her teeth by the defendant.

And the plaintiff claims the sum of N5,000, 000.00 (Five Million Naira Only) from the defendant as damages.”

Along with the writ of summons the appellant filed an application for an order that the 1st respondent shall furnish the court with security for his appearance in court and for the attachment of all the dental equipment at Tahir Dental Clinic pending further order or orders that the court might make. The prayers were granted accordingly.

Subsequently, the appellant filed an ex-parte application for leave to join Mr. Tahir Fadlallah (the 2nd respondent in this appeal) as the second defendant in the suit and for leave to amend the title of the writ of summons and statement of claim by adding the words “Both trading under the name and style of Tahir Dental Clinic” beneath the names of the defendants. The court granted the application pursuant to which the appellant filed an amended writ of summons and statement of claim, which can be found at pages 57-63 of the printed record. By paragraph 40 of the amended statement of claim the plaintiff claims:

“General damages for the injury, damage and pain caused to the plaintiff due to the negligence and reckless treatment given to the plaintiff by the 1st defendant at the defendants’ dental clinic limited to N8 million.

And the plaintiff claims N10,000, 000.00 (Ten Million Naira Only) from the defendants jointly and severally.”

The amended writ of summons and statement of claim were duly served on the 2nd respondent who thereupon entered a conditional appearance to the suit, filed a statement of defence and also filed a motion on notice dated 23/10/99 for an order striking out his name on the ground, inter alia, that he neither applied for, consented to nor signed any documents directly or indirectly regarding the registration of Tahir Dental Clinic, that he was not and had never been a partner in Tahir Dental Clinic and therefore was improperly joined in the suit.

The appellant filed a counter affidavit in reaction to the application and annexed two documents marked Exhibit YY1 and YY2 thereto in support of her contention that the 2nd respondent was indeed a partner in Tahir Dental Clinic. The 1st respondent did not file any response to the application. However at the hearing of the application, learned counsel for the 1st respondent aligned himself with the submissions made on behalf of the 2nd respondent and urged the court to strike out the 2nd respondent’s name. After hearing arguments from all the counsel, the learned trial judge in a considered ruling delivered on 6/3/2000 granted the application and struck out the name of the 2nd respondent from the suit. The appellant being dissatisfied with the decision has appealed to this court by her notice of appeal containing seven grounds of appeal. The notice of appeal at pages 97-100 of the printed record is dated 24/1/01 and was filed pursuant to an order of this court granted on 22/1/01.