Negligence: Res Ips Loquitur II

Appeal:
This was an appeal against the decision of the Court of Appeal which upheld the judgment and award of damages made in favour of the respondent by the High Court. The Supreme Court, in a unanimous decision, dismissed the appeal.
History of the Case:
Supreme Court:
Names of Justices that sat on the appeal: Mahmud Mohammed, J .S.C. (Presided); Muhammad Saifullahi Muntaka-Coomassie, J .s.c., Suleiman Galadima, J .s.c., Nwali Sylvester Ngwuta, J .S.C.; Stanley Shenko Alagoa, J.S.C. (Read the Leading Judgment) Appeal No.: SC.299/2003 Date of Judgment: Friday, T” December, 2012 Names of Counsel: E.J. Pwajok, Esq., Hon. Attorney General of Plateau State (with him, FB. Lotben IMrs.J and N.A. Garba [Mrs.l) – for the Appellants Chike Onyemenam (with him, Phillips Odungu, Esq.) for the Respondent
Court of Appeal:
Division of the Court of Appeal from which the appeal was brought: Court of Appeal, Jos Names of Justices that sat on the appeal: Oludade Oladapo Obadina, J .C.A. (Presided); Amiru Sanusi, J.C.A.; Ifeyinwa Cecilia Nzeako, J.C.A. (Read the Leading Judgment)
Appeal No.: CA/J/94/2000
Date of Judgment: Monday, 14th July, 2003
Names of Counsel: L.I. Wale, Esq. ADCL, Ministry of  Justice, Jos – for the Appellants F.O. Shaibu, Esq. (Holding brief of T.A. Abudu, Esq.) – for the Respondent
High Court:
Name of the High Court: High Court of Plateau State, Jos Name of the Judge: Naron, J. Suit No.: PLA/J/39/96
Date of Ruling: Monday, 24th January, 2000 Names of Counsel: Mr. Albert Shuamyil – for the
Defendants Mr. D.G. Shigaba – for the Plaintiff
Counsel:
E.J. Pwajok, Esq., Hon. Attorney General of Plateau State (with him, F.B. Lotben [Mrs.] and N.A. Garba [Mrs.j) – for the Appellants
Chike Onyemenam (with him, Phillips Odungu, Esq.) – for the Respondent
ALAGOA, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Jos Division delivered on the 14th July, 2003. At the High Court Jos, the present respondent who was plaintiff had taken out a writ of summons claiming the sum of two million naira (N2,000,000.00) being special and general damages for the negligent conduct of the defendants (appellants in this appeal) which led to the permanent disability of his hearing senses. The respondent had sought for and been granted leave to adduce affidavit evidence by the trial High Court. A synopsis of the respondent’s case as can be gleaned from his statement of claim and affidavit evidence contained at pages 3 – 4 and 20 -22 of the record of appeal is that the respondent, a policeman had gone to the hospital of the 2nd appellant for treatment of pneumonia and after the said treatment the respondent became 00% deaf.
A panel of inquiry set up by the appellants had arrived at a conclusion that the respondent’s deafness was due to some injections he received for treatment of pneumonia at the appellant’s hospital. That panel had also recommended that the respondent’s employers, the Nigeria Police, purchase two rare drugs which could cure the respondent’s deafness. The panel further recommended that respondent be assigned to other duties which would not require communication but surprisingly the appellants went on to recommend respondent to the respondent’s employers that the respondent be retired on health grounds, instead of purchasing the drugs which might have cured the respondent’s deafness. In consequence of the respondent’s loss of job, his eight children had to leave school. His request for the payment of compensation having fallen on deaf ears, the respondent brought an action against the appellants claiming N2,000,000.00 (Two Million Naira) as damages for negligence. The respondent relied on the doctrine of “res ipsa loquitur” .
The appellants as defendants filed a joint statement of defence contained at pages 15 and 16 of the record of appeal but led no evidence with respect to same choosing to rest their case on that of the plaintiff now respondent. After addresses of counsel, the learned trial Judge judgment found in favour of the plaintiff (now respondent) and awarded the sum of N300,000.00 damages in favour of the plaintiff or negligence. The plea of “res ipsa loquitur” availed the respondent.
Aggrieved, the defendants appealed to the Court of Appeal on four grounds from which two issues were distilled i.e the learned trial Judge’s reliance on exhibits “C” and “E” – Medical doctor’s report even when no medical doctor was called as a witness and that court’s conclusion that “res ipsa loquitur” applied to arrive at its judgment. The Court of Appeal resolved issue 1 in the appellant’s favour on the ground that exhibits “C” and “E” were of no evidential value contending that the medical doctor who prepared the reports should as an expert have been called upon to give evidence and invoking the provisions of Section 57 of the Evidence Act to allow the appeal in part for the above stated reason. The Court of Appeal resolved issue 2 in favour of the respondent on the basis that “res ipsa loquitur” was applicable and awarded the sum of N300,000.00 damages for negligence in favour of the respondent. Aggrieved, the appellants have yet again appealed to this court. Their notice of appeal dated the 17th July, 2003 at pages 164 – 167 of the record of appeal consists of five grounds of appeal reproduced hereunder devoid of particulars:
Ground One
The Justices of the Court of Appeal erred in law when they failed to consider the appeal based on the issues properly formulated by the appellants rather, their Lordships re-arranged the issues on the erroneous grounds that there was no ground 4. And this occasioned a miscarriage of justice.
Ground Two
The Justices of the Court of Appeal erred in law when having held that the appellants’ issue one succeeded yet in a contradictory manner affirmed the award of N300,000.00 as damages for negligence and this occasioned a miscarriage of justice.
Ground Three
Their Lordships misdirected themselves in law when having found that section 57 of Evidence Act was not complied with by the trial Judge yet their Lordships came to a wrong conclusion that res ipsa loquitur applied in this case.
Ground Four
The learned Justices of the Court of Appeal erred in law when they abandoned the appellants amended/additional grounds of appeal and instead relied on the original grounds in determining the appeal and this occasioned a miscarriage of justice.
Ground Five
The learned Justices of the Court of Appeal erred in
law when they failed to differentiate between the 2nd appellant and the Plateau State Medical Board and  wrongly held that it was the 2nd appellant who referred  the respondent to Jos University Teaching Hospital  and this occasioned a miscarriage of justice.” .
This appeal came up to be heard on the 9th October, 2012. E. J. Pwajok, Hon. Attorney General of Plateau state, with him F. B. Lotben (Mrs.) and N. A. Garba (Mrs.), adopted and relied on the appellants’ brief of argument dated l S’” October, 2004 and urged this court to allow the appeal, set aside the judgment of the lower court appeal dated the l7th July, 2003 at pages 164 – 167 of the record of appeal consists of five grounds of appeal reproduced hereunder devoid of particulars:
Ground One
The Justices of the Court of Appeal erred in law when they failed to consider the appeal based on the issues properly formulated by the appellants rather, their Lordships re-arranged the issues on the erroneous grounds that there was no ground 4. And this occasioned a miscarriage of justice.
Ground Two
The Justices of the Court of Appeal erred in law when having held that the appellants’ issue one succeeded yet in a contradictory manner affirmed the award of
N300,000.00 as damages for negligence and this occasioned a miscarriage of justice.
Ground Three
Their Lordships misdirected themselves in law when having found that section 57 of Evidence Act was not complied with by the trial Judge yet their Lordships came to a wrong conclusion that res ipsa loquitur applied in this case.
Ground Four
The learned Justices of the Court of Appeal erred in law when they abandoned the appellants amended/additional grounds of appeal and instead relied on the original grounds in determining the appeal and this occasioned a miscarriage of justice.
Ground Five
The learned Justices of the Court of Appeal erred in law when they failed to differentiate between the 2nd appellant and the Plateau State Medical Board and wrongly held that it was the 2nd appellant who referred the respondent to Jos University Teaching Hospital and this occasioned a miscarriage of justice.”
This appeal came up to be heard on the 9th October, 2012. E. J. Pwajok, Hon. Attorney General of Plateau state, with him F. B. Lotben (Mrs.) and N. A. Garba (Mrs.), adopted and relied on the appellants’ brief of argument dated l S’” October, 2004 and urged this court to allow the appeal, set aside the judgment of the lower court appeal dated the 17th July, 2003 at pages 164 – 167 of the record of appeal consists of five grounds of appeal reproduced hereunder devoid of particulars:
Ground One
The Justices of the Court of Appeal erred in law when  they failed to consider the appeal based on the issues properly formulated by the appellants rather, their  Lordships re-arranged the issues on the erroneous  grounds that there was no ground 4. And this occasioned a miscarriage of justice.
Ground Two
The Justices of the Court of Appeal erred in law when
having held that the appellants’ issue one succeeded
yet in a contradictory manner affirmed the award of  N300,000.00 as damages for negligence and this
occasioned a miscarriage of justice.
Ground Three
Their Lordships misdirected themselves in law when  having found that section 57 of Evidence Act was not complied with by the trial Judge yet their Lordships
came to a wrong conclusion that res ipsa loquitur
applied in this case.
Ground Four
The learned Justices of the Court of Appeal erred in
law when they abandoned the appellants amended/
additional grounds of appeal and instead relied on the
original grounds in determining the appeal and this
occasioned a miscarriage of justice.
Ground Five
The learned Justices of the Court of Appeal erred in
law when they failed to differentiate between the 2nd
appellant and the Plateau State Medical Board and
wrongly held that it was the 2nd appellant who referred
the respondent to Jos University Teaching Hospital
and this occasioned a miscarriage of justice.” .
This appeal came up to be heard on the 9th October, 2012. E.
J. Pwajok, Hon. Attorney General of Plateau state, with him F. B.
Lotben (Mrs.) and N. A. Garba (Mrs.), adopted and relied on the
appellants’ brief of argument dated IS” October, 2004 and urged this
court to allow the appeal, set aside the judgment of the lower court some drugs administered by the hospital’s personnel? The scenario A
is worse when no attempt is made by the hospital authorities to
explain its own side of the story after promising to do so. The
respondent had stated in his affidavit evidence that the appellants
were negligent. The appellants led no evidence whatsoever of their
own to controvert those facts as stated by the respondent. There is B
a plethora of cases to the effect that uncontroverted facts contained
in an affidavit are taken as true and only minimal proof is required
of such evidence. See Alagbe v. Abimbola (1978) 2 SC 39 at 40;
Cappa and D’ Alberto Ltd. v. Akintilo (2003) 9 NWLR (Pt. 824) 49
at 71. It will therefore be seen that “res ipsa loquitur” can succeed C
irrespective of the rejection by the Court of Appeal of exhibits “C”
and “E”. Mention should also be made of exhibit “B” – minutes
of the appellants’ Medical Consultants/Specialist’s Report which
established thatthe patient (respondent) had, “a post-febrile deafness
after some injections at Plateau Hospital (2nd appellant)” were I
administered on him, for the treatment of pneumonia on the 22nd
August, 1990. Respondent was recommended for an alternative job
with lesser communications while efforts were made at treatment
to improve his condition. After appellants had recommended him
to Dr. Isichei for further check up, the same appellants wrote to his E
employers – exhibits “D” that he be retired from service. It can
therefore be seen that the duty of care which the appellants had
to the respondent was breached and the appellants were negligent
in the proper management of the health needs of the respondent.
See Oyidiobu v. Okechukwu (1972) 5 SC 191; M.J. Evans v. S.A. F
Bakare (1973) 3 SC 77. Thus even on the basis of the pleadings, the
evidence led by the respondent and lack of same by the appellants
having chickened out of an opportunity to state their own position
by abandoning their statement of defence and leading no evidence
at all and the sheer force of the other exhibits notably “B” and “D”, (
exhibits “C” and “E” having been rejected, the appellants were
properly found liable in negligence and res ipsa loquitur applied
and both the trial High Court and the Court of Appeal properly so
held that res ipsa loquitur applied. Issue 1 is therefore resolved in
favour of the respondent against the appellants.
I shall now proceed with issue 2 which is “whether the re-
arrangement of the issues for determination formulated by the
appellants by the learned Justices of the Court of Appeal based on
the appellants’ original grounds of appeal instead of the amended

grounds of appeal containing an additional ground of appeal
has occasioned any miscarriage of justice on the appellants
necessitating a reversal of the judgment of the Court Appeal.”
It is necessary to state at the outset that a court has an unfettered
discretion to re-arrange or formulate issues for determination by
the parties to meet the justice of the case. See Awojugbagbe Light
Industries Ltd. v. PN. Chinukwe & Anor (1995) 4 NWLR (Pt. 390)
379, (1995) 4 SCNJ 1; Latunde & Anor v. Bella Lajinfin (1989) 5
SC 59, (1989) 5 SCNJ 59, (1989) 3 NWLR (Pt. 108) 177; Unity
Bank & Anor v. Edward Bouari (2008) 2 SCM 193 at 240, (Pt.
1086), (2008) 7 NWLR (Pt.1086) 372. In African International
Bank Ltd. v. Integrated Dimensional System Ltd. & Ors Suit No:
SC 27812002 (unreported, decided on the l l “ May, 2012, now
reported in (2012) 17 NWLR (Pt.1328) 1 the Supreme Court per
Ariwoola J.S.C. said as follows, “So long as it will not lead to
injustice to the opposite side, appellate courts possess the power
and in the interest of justice to reject, modify or reframe any Or all
issues formulated by the parties.” Let me go on to state here that
where there is a complaint that a rearrangement or modification
of issues by a court has occasioned a miscarriage of justice, the
burden lies on the party so complaining to show that there has
indeed been a miscarriage of justice by the new arrangement
or modification. It is not for the court to try to figure out how
the rearrangement or modification of issue has occasioned a
miscarriage of justice.
Learned counsel for the appellants at page 7 of the appellants’
brief of argument referred to page 117 of the record where the
learned Justices of the Court came to this conclusion, “Learned
counsel for the appellants states that issue No.1 flows from grounds
1 and 2 of the grounds of appeal and issue 2 from ground 4. It is my
view that issue No.1 of the appellants does not flow from ground
1 but issue No.2 is from ground 2. There is no ground 4 in the
ground of appeal. No issue has been distilled from ground 3. It
is deemed abandoned. It is therefore struck out.” Appellants then
went on to say in paragraph 2.2 at page 7 of their brief of argument
thus, “The omission is fundamental and contributed to a large extent
in the contradictory judgment of the lower court.” How was the
judgment of the lower court contradictory? Granted that there was
a mix up by the Court of Appeal in the arrangement of issues, its
judgment was in no way contradictory. Appellants have certainly
not shown how. What is of importance is that the Court of Appeal
having agreed with the appellants that the provisions of section 57

of the Evidence Act which deals with the calling of expert evidence J
was not complied with as the doctor who prepared exhibits “C” and
“E” was not called to give evidence rejected the finding of the trial
High Court admitting exhibits “C” and “E”. It was on that basis that
the appeal was allowed in part.
This issue is also resolved in favour of the respondent. On the
whole the appeal lacks merit and is dismissed and the judgment of
the Court of Appeal Jos Division delivered on the 14th July, 2003
is hereby affirmed. Parties are to bear their own costs.