University Of Ilorin Teaching Hospital V. Dr. Dele Abegunde (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment)

The Federal High court, Ilorin Division, coram A.O. Faji, J., in suit No. FHC/IL/CS/2008 handed down a decision, on 22/07/2011, wherein it granted the respondent’s claims against the appellant.

The facts of the case in the lower court, whence the appeal germinated, are succinct. Late Chief Ernest Omotade Abegunde, the respondent’s father, was a traditional ruler who wore the prestigious title of the Olu-agba I of Makutu in Kogi State. During the lifetime of the septuagenarian Chief, he was a diabetic, hypertensive and stricture patient who patronized the appellant constantly. Sometime in January 2008, precisely on 11/01/2008, while on his way to South Africa for a brief holiday, he made a stopover in the appellant for a medical checkup because he was dribbling urine and had slurred speech. Sequel to those ailments, the deceased chief was admitted in the urology unit of the appellant. The demised chief went into series of treatments in the appellant and, eventually, died on 26/03/2008.

Following his death, the respondent, one of his children, on 01/12/2008, took out a writ of summons, in a representative capacity of the family of the deceased, in the lower court and claimed declaratory reliefs, based on negligent treatment, and special and general damages against the appellant. The appellant entered appearance and joined issues with the respondent. The action went through a full-scale trial. The respondent fielded two witnesses, PW1 and PW2, and ditto the appellant which called DW1 and DW2 in proof and disproof of the case respectively. Loads of documentary evidence, exhibits 1 – 759, were tendered by the parties. In a 30-page considered judgment, occupying pages 914 – 944 of the printed record of appeal, the lower court granted the two declaratory reliefs, awarded N3,138,230.00 and N5,000,000.00 as special and general appeal damages respectively in favour of the respondent.

The appellant was dissatisfied with the decision of the lower court. Hence, it filed a notice of appeal, housing four grounds, located on pages 945 – 950 of volume II of the record, on 11/08/2011. Subsequently, the appellant filed an amended notice of appeal, hosting twelve grounds, on 21/03/2012 and prayed the court as follows: “a. To set aside the decision of the FEDERAL HIGH COURT ILORIN IN THIS SUIT. b. To dismiss the plaintiff’s claim in its entirety”. The parties filed and exchanged their briefs of argument in line with the rules of this court.

The appeal was heard on 09/05/2013. In this wise, learned counsel for the appellant, Olajide Ayodele, SAN, adopted the amended appellant’s brief of argument, filed on 23/11/2012 and the reply brief of argument, filed on 07/03/2013, but deemed filed on 09/05/2013, as representing his arguments in support of the appeal. Learned counsel prayed the court to allow the appeal. Similarly, learned counsel for the respondent, Mrs. E.O. Adewoye, adopted the respondent’s brief of argument, filed on 21/09/2012, but deemed filed on 09/05/2013, as forming her submissions against the appeal. She urged the court to dismiss it.

In the amended appellant’s brief of argument, three issues are crafted to wit:

“(i) Whether the question of improper record keeping by the appellant, was an issue at the trial when viewed against the background of the pleadings filed by the parties.

(ii) Whether the respondents proved the allegation of negligence against the appellant on the preponderance of evidence before the court and whether the trial judge evaluated the evidence properly.

(iii) Whether the award of Special and General Damages against the Appellant is not erroneous in law and based on irrelevant consideration.”

The respondent, in his brief of argument, formulated three issues viz:

“3.01 Whether the question of improper record keeping by the Appellant was not an issue at the trial court when viewed against the background of the pleadings filed and the evidence adduced by the parties.

3.02 Whether having regard to the circumstance of this case, the trial court was not right in holding that the appellant was negligent in the management of the deceased

3.03 Whether the trial court was not right in granting the declaratory reliefs sought by the respondent and awarding the sum of N3,138,230.00 as special damages against the appellant”