ALEX OTTI v. EXCEL-C MEDICAL CENTRE LIMITED & ANOR (2019)

ALEX OTTI v. EXCEL-C MEDICAL CENTRE LIMITED & ANOR

(2019)LCN/13457(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2019

CA/L/755/2012

RATIO

COURT: DUTY OF THE TRIAL COURT TO BE EVEN HANDED IN REVIEWING EVIDENCE

It is agreed on all sides that the trial Court has the duty to be even-handed in the review of evidence, evaluation of the same and ascription of probative thereto. It is however pertinent to emphasize that judgment writing is an art and there are as many variants to judgment writing as there are judgments. What is however essential is for the judgment to capture the issues in controversy in the matter, the evidence placed before the Court on the issues, demonstrate a full and dispassionate consideration of the issues and how the Court arrived at its verdict based on how the evidence before it preponderated. See IGWE vs. A.I.C.E OWERRI (supra) at 480-481PERUGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUDGMENT: STYLE OF JUDGMENT: THERE IS NO PARTICULAR STYLE OF GIVING JUDGMENTS BUT THERE ARE SOME BASIC PRINCIPLES ON WHAT JUDGMENTS SHOULD BE

It is important to underscore that every judge has his own peculiar style and method and there is no particular form a judgment should take. The important thing is for the judgment to contain the well-known constituent parts of a good judgment. For a Court of trial, like the lower court, these include ?
1. the issues or questions to be decided in the case;
2. the essential facts of the case of each party and the evidence led in support;
3. the resolution of the issues of fact and law raised in the case;
4. the conclusion or general inference drawn from facts and the law as resolved; and
5. the verdict and orders made by the Court.
The above elements need not be stated expressly in every judgment as they may not be present in every case. See GARUBA vs. YAHAYA (2007) 3 NWLR (PT 1021) 390, A-G FEDERATION vs. ABUBAKAR (2007) LPELR (3) 1 at 40 41 and OGBA vs. ONWUZO (2005) 14 NWLR (PT 945) 331.?
Notwithstanding the peculiarity in style, what is important is that the judge should put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side. Having so put the evidence on this imaginary scale of justice, the judge weighs them together in order to see which is heavier by the quality or probative value of the testimony as opposed to the quantity or number of the witnesses. Thereafter the judge applies the law, if any, before he comes to the final conclusion based on the accepted evidence. See JEKPE vs. ALOKWE (2001) 8 NWLR (PT 715) 252 or (2001) LPELR (1604) 1 at 17, WOLUCHEM vs. GUDI (1981) 5 SC 291 and MOGAJI vs. ODOFIN (supra).PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FINDING OF FACT: WHAT IT ENTAILS

It is hornbook law that a finding of fact entails both perception of evidence and evaluation of evidence: OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT 1) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51. Evaluation of evidence is basically the assessment of the facts by the trial Court to ascertain which of the parties had more preponderant evidence to sustain his claim. See OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE CLAIM OR RELIEF IN AN ACTION IS THE CYNOSURE OF THE CASE
It is settled law that the claim or relief in an action is the pivot or cynosure of the case. The claimant is bound by the claim and the Court cannot adjudicate between the parties on the basis of a claim not formulated by them: OSUJI vs. EKEOCHA (2009) LPELR (2816) 1 at 44 and 55.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

APPEAL: LIMITATIONS TO THE DUTY OF THE APPELLATE COURT

In the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT. 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98. In the words of Idigbe, JSC in BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR 1 at 47:
It is now settled that if there has been a proper appraisal of evidence by a trial Court, a Court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

ESTOPPEL: A PARTY IS ESTOPPED WHEN HE SIGNS A DOCUMENT EXCEPT WHERE HE WAS MISLED INTO SIGNING SUCH DOCUMENT
The general rule is that a party is estopped by his deed and a party of full age and understanding is bound by his signature to a document, whether he reads or understands it or not. It is only a party that has been misled into executing a deed or signing a document essentially different from what he intended to execute or sign that can plead non est factum as a defence in [an] action against him.
See also EZEUGO vs. OHANYERE (1978) 6-7 sc 171 at 184, ALLIED BANK vs. AKUBUEZE (1997) 6 NWLR (PT 509) 374 and IKOMI vs. BANK OF WEST AFRICA LTD (1965) LPELR (25243) 1 at 13-14.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

NEGLIGENEC: HOW TO PROVE THE TORT OF NEGLIGENCE

In order to prove the tort of negligence, a claimant must prove that the defendant owed him a duty of care, that the duty of care was breached by the defendant and that the breach resulted in damage to the claimant. See IGHRERINIOVO vs. SCC NIG LTD (supra), ENYIKA VS. SHELL B.P. PETROLEUM DEVELOPMENT CO. (1997) 10 NWLR (PT 526) 638 and ABUSOMWAN vs. MERCANTILE BANK (1987) 3 NWLR (PT 60) 196.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

HOW TO PREVENT THE PROLOGATION OF LITIGATION BY THE TRIAL COURT

The legal position in this regard is settled beyond peradventure. It is that in order to avoid undue prolongation of litigation and to prevent unnecessary expense, the trial Court should always, as a matter of duty assess the damages it would have awarded, even if the decision was against the party claiming damages: INTERNATIONAL ILE IND. NIG. LTD vs. ADEREMI (1999) 8 NWLR (PT 614) 268 at 301-302, YAKASSAI vs. MESSRS INCAR MOTORS LTD (1975) 5 SC 107 at 115-116 and C & C CONSTRUCTION CO. LTD vs. OKHAI (2003) LPELR (821) 1 at 31-32.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE DUTY OF THE APPELLATE COURTS WHEN THE TRIAL COURTS HAVE ASSESSED
The law remains that where a trial Court has assessed damages, then an appellate Court can either agree with the assessment or in appropriate cases vary the amount. Where the trial Court did not make any assessment, like in this case, an appellate Court can make the assessment itself if the materials on which it can do so are available on the record. See OVERSEAS CONSTRUCTION CO. (NIG) LTD vs. CREEK ENTS (NIG) LTD (1985) LPELR (2835) 1 at 23 and MIDLAND GALVANIZING PRODUCTS LTD vs. COMET SHIPPING AGENCIES NIG LTD (2014) LPELR (24019) 1 at 24-25.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

ALEX OTTI Appellant(s)

AND

1. EXCEL-C MEDICAL CENTRE LIMITED
2. DR EJIKE ORJI Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal originates from the decision of the High Court of Lagos State in SUIT NO. LD/1206/2008: ALEX OTTI vs. EXCEL-C MEDICAL CENTRE LTD & ANOR. The genesis of the matter is in the medical treatment which the Appellant, who was the Claimant at the lower Court, received from the 2nd Respondent at the 1st Respondent?s Hospital. The Appellant?s case is that upon presentation to receive a prescription and supply of pain-relieving tablets for his haemorrhoids, he expressly informed the 2nd Respondent that he did not want to be detained overnight and that he did not want any surgical procedure performed on him. Piqued that the 2nd Respondent did not act in accordance with his instructions and that the procedure performed on him only served to worsen his condition, the Appellant instituted the said action claiming the following reliefs:
(a) Damages in excess on =N=100,000,000.00 (One Hundred Million Naira) for false imprisonment by sedation, bodily trespass by unauthorized surgical operation, and clinical negligence;
(b) Interest thereon at such

rate and for such period as the Court thinks fit; and
(c) Costs of this action.?

The Respondents, contending that the Appellant?s action was actuated by malice and designed to tarnish the reputation of the 2nd Respondent, since the Appellant had already lodged a complaint for professional misconduct with the Medical and Dental Council of Nigeria; counterclaimed for the following relief:
“The sum of N50, 000,000.00 as general damages against the Claimant for malicious prosecution and abuse of legal process in instituting the present Court action against the Defendants whilst the earlier process commenced by him and in respect of the same transaction is yet to be determined.?

So there was a claim and counterclaim, both of which passed through the furnace of inter partes hearing, where testimonial and documentary evidence was adduced. In its judgment which was delivered on 18th April 2012, the lower Court dismissed both the main claim and the counterclaim. The Appellant was dissatisfied and appealed against the dismissal of his claim. There was no appeal against the dismissal of the counterclaim. The judgment of the

lower Court is at pages 243-341 of the Records of Appeal while the Notice of Appeal is at pages 342-353 of the Records of Appeal.

The Records of Appeal were compiled and transmitted and the parties filed and exchanged briefs of argument which they adopted and relied on at the hearing of the appeal. So here we are. The Appellant?s Brief was filed on 13th February 2014 but deemed as properly filed on 13th April 2016. The Appellant distilled five issues for determination as follows:
(1) Did the learned trial judge properly and fairly discharge his duties as a trial judge in arriving at his conclusions of fact in the judgment against the Appellant? (Grounds 1, 8 and 12)
(2) Was the learned trial judge correct in the decision that the specific incident upon which the Appellant based his complaint of false imprisonment happened accidently (that is, unintentionally by the Respondents as an alleged side-effect of the pain relieving treatment they ?agreed? with and administered on the Appellant) and/or with Appellant?s consent as against the legal evidence on the Record showing that it was (rather) part of a deliberate and

calculated scheme by the Respondents to ensnare the Appellant into an overnight admission in their hospital contrary to the wish he had clearly expressed throughout his initial consultation with the 2nd Respondent? (Grounds 2, 3 and 13)
(3) Was the learned trial judge correct in his findings and conclusions upon Exhibit J that the Respondents had the informed consent of the Appellant to carry out the surgeries they performed on him? (Grounds 4, 5, 6, 7 11 and 13)
(4) Upon the standard of ?balance of probabilities? applicable to civil claims, was the learned trial judge correct in his decision that the Appellant failed to prove his claim for clinical negligence? (Grounds 9, 10 and 13).
(5) Notwithstanding the decision that the Respondents were not liable to the Appellant on his claim for damages for false imprisonment by unauthorized sedation, bodily trespass by unauthorized surgical operation and clinical negligence, whether or not it was right that the learned trial Judge failed/neglected to make an assessment of damages? (GROUND 14 OF THE NOTICE OF APPEAL)?

?The Respondent?s Brief was filed on 18th November, 2016 but

deemed as properly filed on 22nd November, 2016. They also formulated five issues for determination, namely:
?a) Whether the learned trial judge made a correct approach to the evidence presented by both parties to the case. In other words, did the learned Judge give adequate consideration to the respective cases presented by both the Appellant and the Respondents.
b) Was the learned trial judge?s finding and determination that a case of false imprisonment had not been made out by the Appellant consistent with the quality of evidence led by the parties in that regard.
c) Whether the learned trial judge was correct in his findings and conclusions that the Respondents had the informed consent of the Appellant in carrying out the surgical procedure on the Appellant on 25/11/2006.
d) On the basis of standard of proof applicable to civil claims, was the learned trial judge correct in his decision that the Appellant failed to prove his claim for clinical negligence against the Respondents.
e) Was the learned trial judge under an obligation to make an assessment of damages in regard to the claim filed by the Appellant,

notwithstanding that the lower Court, after evaluation of the evidence tendered, and consideration of the merit of the case after a full trial, had wholly dismissed the Appellant?s claim.?

Evidently, the issues distilled by the parties are very differently worded, however the true purport and essence of the questions raised in the issues are the same. I would however adopt the issues as crafted by the Respondents as the guide in the consideration of the submissions of learned counsel and resolution of this appeal. This is on account of the fact that the formulation by the Respondents are succinct, concise, apt and pellucid.

ISSUE NUMBER ONE
Whether the learned trial judge made a correct approach to the evidence presented by both parties to the case. In other words, did the learned Judge give adequate consideration to the respective cases presented by both the Appellant and the Respondents?

SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant?s argument on this issue flows from pages 3-13 of the Appellant?s Brief. The conspectus of the Appellant?s contention is that the lower Court did not properly

discharge its duties in the manner it arrived at conclusions of facts in its judgment. The lower Court it was opined did not sift through the evidence and place them on the imaginary scale of justice to see how the scale tilts in order to determine the issues in controversy. The lower Court it was stated, did not evaluate the evidence before proceeding to make findings of facts at pages 319-321 of the Records. The Appellant further argued that the lower Court adopted double standards and used different criteria or measure of proof when dealing with the evidence of the Appellant and a different yardstick when dealing with the evidence of the Respondents. The decision of the lower Court was impugned for being selective and inconsistent in the way it placed reliance on the documentary evidence, using them to make findings favourable to one party and refusing to use them when it favoured the other party. The Appellant relied on a host of authorities including MOGAJI vs. ODOFIN (1978) 4 SC 91, GARBA vs. GALADIMA (1993) 4 NWLR (PT 285) 72, FATB vs. EZEGBU (1994) 9 NWLR (PT 367) 149, ONYENWENZOR vs. OPUSUNJU (2002) 6 NWLR (PT 762) 72, AGBANELO vs. UBN (2000) 7 NWLR

(PT 666) 534, CHIME vs. UDE (1993) 3 NWLR (PT 279) 79 and ODUNZE vs. NWOSU (2000) 20 WRN 28.

SUBMISSIONS OF THE RESPONDENTS? COUNSEL
The Respondents argued this issue on pages 7-15 of the Respondents? Brief. It is their contention that the lower Court employed the correct approach to the evidence on record and in the evaluation thereof. It was stated that what a Court does in the review and evaluation of evidence presented depends largely on the nature of the case and the need to prove the case as pleaded and on which issues were joined. The Respondents asserted that the lower Court having made primary findings of fact at pages 319-321 of the Records proceeded to identify the issues for determination at pages 321-322 of the Records and thereafter meticulously and painstakingly considered and evaluated the evidence on record and then made findings and consequential orders with respect to the claim and counterclaim (pages 322-340 of the Records were referred to). The Court was urged to look at the totality of the judgment of the lower Court and determine whether it meets the threshold requirement of the content of a good judgment. It was

posited that it is not every error or mistake in a judgment that is fatal to the decision. The Court was urged to hold that the lower Court dutifully discharged the duties expected of it in the evaluation of evidence and making findings of facts thereon. The authorities which the Respondents referred to include OJO vs. GHARORO (2006) 10 NWLR (PT 987) 173, IGWE vs. A.I.C.E. OWERRI (1994) 8 NWLR (PT 363) 459, AYORINDE vs. SOGUNRO (2012) LPELR – 7808 (SC), DAKUR vs. DAPAL (1998) 10 NWLR (PT 571) 573, ONAMADE vs. ACB (1997) 1 NWLR (PT 480) 123, OKONKWO vs. OKONKWO (2004) 5 NWLR (PT 865) 87 and ONWUNALU vs. UCHE (2009) LPELR – 8274 (CA).

RESOLUTION OF ISSUE NUMBER ONE
Prefatorily, the crux of this issue is whether the lower Court properly and fairly discharged its duties in arriving at the conclusion of fact made in the judgment. The parties in their submissions strayed into the terrain of whether, based on the evidence on record, the lower Court was correct in its decision to dismiss the Appellant?s case. The question of whether the lower Court correctly evaluated the evidence on record and ascribed probative value thereto with respect to the

reliefs claimed by the Appellant is the crux of the disceptation in issue numbers two, three and four as disparately nominated by the parties. Accordingly, in resolving this issue number one I would restrict myself to the pith of the controversy, id est, whether the lower Court properly and fairly discharged its duties in the manner in which it approached and utilized the evidence on record.

particular form a judgment should take. The important thing is for the judgment to contain the well-known constituent parts of a good judgment. For a Court of trial, like the lower court, these include ?
1. the issues or questions to be decided in the case;
2. the essential facts of the case of each party and the evidence led in support;
3. the resolution of the issues of fact and law raised in the case;
4. the conclusion or general inference drawn from facts and the law as resolved; and
5. the verdict and orders made by the Court.
The above elements need not be stated expressly in every judgment as they may not be present in every case. See GARUBA vs. YAHAYA (2007) 3 NWLR (PT 1021) 390, A-G FEDERATION vs. ABUBAKAR (2007) LPELR (3) 1 at 40 ? 41 and OGBA vs. ONWUZO (2005) 14 NWLR (PT 945) 331.?
Notwithstanding the peculiarity in style, what is important is that the judge should put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side. Having so put the evidence on this imaginary scale of justice, the judge weighs them together in order to see which is heavier by

the quality or probative value of the testimony as opposed to the quantity or number of the witnesses. Thereafter the judge applies the law, if any, before he comes to the final conclusion based on the accepted evidence. See JEKPE vs. ALOKWE (2001) 8 NWLR (PT 715) 252 or (2001) LPELR (1604) 1 at 17, WOLUCHEM vs. GUDI (1981) 5 SC 291 and MOGAJI vs. ODOFIN (supra).
The question of whether the lower Court employed double standards or used different yardsticks in ascribing probative value to the evidence would be duly considered under issue numbers two, three and four which dwell on the manner in which the lower Court evaluated the evidence and made consequential findings thereon. The paramount complaint of the Appellant in this issue is that in a clear failure to properly discharge its duties, the lower Court made findings of facts at page 319-321 of the Records without evaluating the evidence. Let me iterate that the essential thing is for a judgment to meet the well-known constituent parts of a good judgment, irrespective of the peculiarity in the style of judgment writing. It cannot be confuted that the lower Court having referred to the evidence

adduced by the parties and the submissions of learned counsel proceeded to state what it termed findings of facts. Unusual and awkward it may be, but that was the style which the presiding judge of the lower court used. But notwithstanding the said heading ?FINDINGS OF FACTS? at page 319, it is limpid that what the lower Court stated at pages 319-321 of the Records under the heading findings of facts are no more than a further restatement of the lower Court?s understanding of the case variously made out by the parties. They were not findings of facts as the lower Court did not at the said pages arrive at a reasoned preference of one version of the evidence to the other.
It is hornbook law that a finding of fact entails both perception of evidence and evaluation of evidence: OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT 1) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51. Evaluation of evidence is basically the assessment of the facts by the trial Court to ascertain which of the parties had more preponderant evidence to sustain his

claim. See OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other. It is on the basis of how the trial Court concludes that the evidence preponderates that it makes logical and consequential findings of facts, stating how it arrived at its conclusion of preferring one piece of evidence to the other: ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451, STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005 and AKINTOLA vs. ADEGBITE (2007) ALL FWLR (PT 372) 1891 at 1898.
Let me re-emphasize that what the lower Court restated under the heading ?FINDINGS OF FACTS? at pages 319-321 of the Records are not findings of facts. It is no more than restating what was done under perception of evidence, id est, all available relevant evidence that was received. It is with deference specious for learned counsel to excoriate the lower Court that it made findings of facts at pages 319-321 of the Records without evaluating the evidence when it is apparent that no findings of facts as known in law were

made in the said pages. This is put beyond confutation by the fact that the lower Court, having finished with the restatement of what was done in perception of evidence, continued on page 321 of the Records and stated:
?I have carefully considered the claim before the Court and the Defence. I have also carefully considered the testimonies of the witnesses and the Exhibits tendered by them. I have equally considered the written submission of both learned Counsel and all the authorities cited therein in support of their argument. Having considered all the above, I have identified the followimg [sic] issues for determination which are from the ones identified by both Counsel in their own addresses.”
The lower Court thereafter proceeded to consider the issues, the evidence on record and arrived at its verdict on the issues at pages 322-341 of the Records.
The judgment style of the lower Court may not have been the norm, but there is no derelict by the lower Court in the discharge of its duties in the manner of approaching the determination of the case based on the evidence before it. Whether the lower Court properly evaluated the evidence and made

the correct findings of facts is a different kettle of fish and will be the question to be interrogated in consideration of issue numbers two, three and four. The ineluctable conclusion is that this issue number one is resolved against the Appellant.

ISSUE NUMBER TWO
Was the learned trial judge?s finding and determination that a case of false imprisonment had not been made out by the Appellant consistent with the quality of evidence led by the parties in that regard?

SUBMISSIONS OF THE APPELLANT?S COUNSEL
This issue is argued on pages 13-20 of the Appellant?s Brief. It is submitted that the case pleaded by the Appellant is false imprisonment by sedation, which resulted in his being detained overnight at the Respondents? premises. It was opined that based on the pleadings what called for determination was whether the sedation resulting in the Appellant?s detention overnight was what the Appellant bargained for during consultation and which could therefore be lawfully excused. It is the further contention of the Appellant that it was made clear to the 2nd Respondent that the Appellant did not want to spend the

night in the hospital, but that the Respondents deliberately thwarted the Appellant?s desire by wilfully sedating the Appellant to ensure that the Appellant was admitted overnight in the hospital against his express wish.

It was stated that the evidence on the claim for false imprisonment preponderated in favour of the Appellant, but that the lower Court ignored the evidence and went in search of its own excuses for the Respondents by stating, after finding for a fact that the Respondents gave Appellant an injection to make him sleep, that people react differently to drugs. It was further stated that the lower Court was wrong when it held that the Appellant was not restrained and that he was not prevented from leaving the hospital when he woke up. The Appellant?s case, it was posited, was specific on the false imprisonment complained about, being overnight between Friday 24th and Saturday 25th November 2006, such that when he woke up from the effect of the sedation, the false imprisonment was already a completed act and what happened thereafter was irrelevant. It was conclusively contended that the overnight detention of the Appellant against

his will was deliberate and not an accidental occurrence that happened as a reaction to the drugs injected the Appellant. The Court was urged to hold that the lower Court invented a case for the Respondents and engaged in speculation in deciding the case. The cases of OVERSEAS CONSTRUCTION LTD Vs. CREEK ENT. LTD (1985) 3 NWLR (PT 13) 407, BABALE vs. ABDULKADIR (1993) 3 NWLR (PT 281) 253, OGUNLOWO vs. OGUNDARE (1993) 7 NWLR (PT 307) 610, ONYEGBU vs. THE STATE (1995) 4 NWLR (PT 391) 510 at 531 among other cases were cited in support.

SUBMISSIONS OF THE RESPONDENTS? COUNSEL
The Respondents submit that based on the evidence the lower Court came to the correct conclusion on the issue of false imprisonment by sedation. It was stated that the lower Court was entitled to prefer the evidence which it believed and that there was no misdirection as the specific findings of the Court were based on credible and direct evidence before the Court. It was posited that the primary issue was whether the principal intention of the Respondents was to sedate the Appellant and thereby falsely imprison him. The Respondents argue that based on the evidence on the

timelines of the treatment administered on the Appellant, the period of false imprisonment through sedation was less than three hours.

The Respondents submitted that false imprisonment involves the unlawful illegal and unjustifiable restraint of a person?s right and liberty to move about freely, but that the Appellant when he woke up was not under any restraint and could have left but choose not to. The cases of UAC vs. SOBODU (2007) 6 NWLR (PT 1030) [no page stated] or (2006) LPELR ? CA/501/99, BIRD vs. JONES (1845) 7 QB 742, ROBINSON vs. BALMAN FERRY CO. LTD (1910) AC 295, HEAD vs. WEARDALE EXC CO LTD (1915) AC 67 and page 38 of the 10th Edition of Winfield and Jolowicz on Tort were called in aid. It was conclusively asserted that the lower Court correctly found and determined that a case of false imprisonment was not made out on the evidence.

RESOLUTION OF ISSUE NUMBER TWO
It is settled law that the claim or relief in an action is the pivot or cynosure of the case. The claimant is bound by the claim and the Court cannot adjudicate between the parties on the basis of a claim not formulated by them: OSUJI vs. EKEOCHA (2009) LPELR

(2816) 1 at 44 and 55. I have already set out the reliefs claimed by the Appellant. For purposes of this issue the relief claimed is damages for false imprisonment by sedation. The facts on which the Appellant predicated his claim for false imprisonment are averred to in paragraphs 5-14 of the Statement of Claim and it is premised on the said facts that the Appellant made the specific complaint in paragraph 15 grounding his claim for false imprisonment. It is therein averred thus:
?15. By reason of the matters alleged in paragraphs 5-14 hereof, the Claimant was, against his will; held and detained overnight between Friday the 24th and Saturday the 25th of November, 2006, in the Defendants? premises at 45B, Corporation Drive, Dolphin Estate, Ikoyi, Lagos. The Claimant shall at the hearing hereof show by evidence that the Defendants were motivated in their conduct by pecuniary and mercenary quest to boost their earnings from the Claimant.?
[See page 6 of the Records]

It is effulgent that the complaint about false imprisonment is specific. It is that ?the Claimant was, against his will; held and detained overnight between

Friday the 24th and Saturday the 25th of November, 2006, in the Defendants? (Respondents) premises.? The facts pleaded as being the basis of the Appellant?s complaint are reproduced in the Appellant?s witness statement on oath which he adopted as his evidence in chief at the hearing. So the cynosure of the case which the lower Court was to adjudicate upon was the alleged false imprisonment arising from the detention overnight between Friday 24th and Saturday 25th November 2006.
?
The Respondents? case in this regard which is also reproduced in the witness statement on oath of the Respondents? sole witness is encapsulated in paragraphs 14 to 16 of the Statement of Defence where it is averred thus:
?14. Contrary to the averment in the paragraph 15 of the Statement of Claim that the claimant was detained overnight by the Defendants, the Defendants shall contend at the trial of this case that the Claimant completely agreed to the procedure adopted by the Defendants for his treatment based on the following facts:
(a) The Claimant freely and willingly allowed the Defendants to take his blood samples for

investigation, which had nothing to do with pain relief.
b) The Claimant allowed the setting up of intravenous fluids on him and this also had nothing to do with the purported ?whistle stop for analgesics? but part of the course of treatment the Defendant had graphically outlined to the Claimant and which he completely agreed to without a demur.
c) The Claimant let the Defendants give him antibiotics intravenous fluids and analgesic injections in line with process to achieve the Defendants goal of treatment.
d) The Claimant walked to his room by himself and also removed his suit and agreed to wear a patient?s gown used in theatre. Obviously not the acts of someone was passing by and intent on taking oral analgesics only.
e) The Claimant came to the hospital about 7p.m and was given the 1st analgesic by 8.40pm. His first intravenous antibiotics dose was given by 9.40pm and he was also on drip. This was all preparatory to the procedure which was scheduled for 6.00am, by which time the Claimant would be safely ready.
f) The Claimant, who came to the hospital with a driver, his car and an aide, had the option of leaving

the hospital the same night if he did not agree with the 2nd Defendant about the procedure outlined and commenced with for his treatment.
15. The Claimant thus was being very economical with the truth by saying his wife was not aware he came to the Defendants hospital for treatment as he was accompanied to the hospital by his retinue of aides: his personal assistant, driver and about 5 mobile phones; coupled with the fact that his aide and driver left the hospital that night after his admission.
16. The Claimant?s treatment started around 8.40pm of 24.11.06 when he was given first injection of Pethidine 100mg and Phernergan 25mg, which were normal dose to relieve his severe pain and make it easier for him to sleep.?
[See pages 43-44 of the Records]
?
It is evident that the Respondents averred that they gave the Appellant what would make it easier for him to sleep. The crux of the defence is however that the Appellant agreed to the treatment procedure which would involve his staying in the hospital overnight. So the parties were at issue on whether the understanding was for the Appellant to go home or for him to stay overnight

based on the treatment agreed upon.

In dealing with this issue the lower Court in evaluation of the evidence and ascription of probative value thereto found and held as follows at pages 325-326 of the Records:
?I will now relate the above definitions to the evidence placed before the Court. It is in evidence that the Claimant freely went to the Defendants? hospital in the evening of Friday the 24th November, 2006 at about 7.30pm, for the purpose of obtaining medication for haemorrhoids related pain and discomfort in his anal region. When the Defendant requested to examine him, which is the proper thing a Medical Doctor is expected to do before any medication is prescribed, the Claimant voluntarily submitted himself for the physical examination.
It is in evidence before this Honourable Court that after the visual examination of the Claimant?s anal area, the 2nd Defendant explained to him that his prolapsed thrombosed and inflamed piles/haemorrhoids could be the probable cause of his intense pain and that apart from the analgesics he wanted, that it is necessary to ?dilate? and push back the haemorrhoids to ensure

longer-lasting relief for the Claimant.
It is equally in evidence before this Honourable Court that the Claimant clearly told the 2nd Defendant that he did not want any surgery. I have no doubt in my mind that this was clearly told to the 2nd Defendant. The 2nd Defendant administered the following drugs when he commenced treatment on the Claimant with an injection of Pethidine 100mg and Phernergan 25mg to relieve his severe pain and make him sleep even though the after effect can make one sleep. Can one then say the drugs administered on the Claimant was done purposely to imprison him falsely by the Defendants? Pethidine is a pain relieving medication while Phernergan is a sleep induced medication. With these drugs, the Claimant fell asleep and did not wake up until about 12.35am the next day-Saturday, 25th November, 2006.
The Claimant regained consciousness and being told by the 2nd Defendant over the phone that he had not completed the procedure, he had the opportunity to leave the Defendant?s hospital before environmental hours on Saturday morning. He was not restrained by the 2nd Defendant or the workers of the 1st Defendant. I agree that

it would have been dangerous to leave the hospital at 12.35am but there was the opportunity to leave at 6.00am to 6.30am before the time for the monthly environmental sanitation exercise. The Claimant has alleged the 2nd Defendant?s intention is to administer treatment that would increase the income of the Defendants cunningly, the Claimant had the opportunity to have walked out of the hospital on the morning of the 25th November, 2006. His claim for false imprisonment by sedation or through the drugs administered on him by injection cannot hold when the principles of law relating to the tort of false imprisonment is applied. When the Claimant woke up, he was not restrained, he was not locked up, and he was not prevented from leaving the hospital. He had an avenue of escape from the Defendants? as his driver and his Personal Assistant were in the hospital when he woke up. It was after he woke up that he discharged them.
The Claimant had testified that he was in more pain when he woke up and as a result, he was administered further medication to ease the pain while the 2nd Defendant told him he would be in the hospital by 6.00am to continue

further treatment which in his mind is the ?dilation?. Having accepted to still wait to be treated by the 2nd Defendant, the Claimant cannot complain of false imprisonment by medication even though he never had the intention of spending the night in the hospital as he alleged.
It is trite that where the restraint was not total or a mere figment of the imagination of the Claimant, then no issue of false imprisonment can arise. I refer to the following cases: BIRD V. JONES (SUPRA), ROBINSON V. BALMAIN FERRY CO. LTD (1910) A.C PG. 295 and HEAD V. WEARDALE EXC. CO. LTD (1915) A.C Page 67. I must not also overlook the fact that different people react to drugs. The Claimant filed to produce an expert witness that the drugs administered on him are not analgesic but just sedate him.
From the foregoing therefore, I hold that the Claimant was not falsely detained or imprisoned through sedation by the Defendants. I further hold that the evidence adduced by the Claimant before the Court did not establish false imprisonment by sedation on the part of the 2nd Defendant on the Claimant.?
?

Now, it is hornbook law that the evaluation of evidence and the ascription of probative value thereto reside within the province of the Court of trial that saw, heard and assessed the witnesses. Where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court. However, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the court. See EDJEKPO Vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46 47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT. 589) 1or (1999) LPELR (1248) 1 at 47 – 48.

In the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT. 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98. In the words of Idigbe, JSC in BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR 1 at 47:
?It is now settled that if there has been a proper appraisal of evidence by a trial Court, a Court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.?
The Appellant seems to have misconceived the findings made by the lower Court. The lower Court did not speculate, invent a case for the Respondents or make any excuses for them. The lower Court in the excerpt above held

that the Appellant came for the purpose of obtaining medication for his hemorrhoids related pain, but that after examining him, the 2nd Respondent suggested an additional course of treatment apart from the analgesics, which the Appellant had come for, in order to ensure longer lasting relief. The Appellant accepted the said course of treatment but slept off due to the effects of the medication. The fine contention of the Appellant is that at the time he woke up at 12.35am on Saturday, 25th, the overnight detention had already been completed. It is borne out by the Records that the Appellant received medication at 8.30pm and 9.40pm on Friday 24th. So the period when the Appellant would not have known what was happening would have been the period between 9.40 pm and 12.35 am.
The conclusions drawn by the lower Court are based on the evidence on record and I am inclined to agree that the understanding between the parties was that the course of treatment would involve the Appellant spending the night in the hospital as it was no longer a matter of prescribing and supplying analgesics which the Appellant had set out to accomplish. If it had been otherwise and

it was unsafe to have left the hospital when the effect of the sedative wore off at 12.35 am, as rightly held by the lower Court, the Appellant could have left the hospital at 6.00 to 6.30 am when it was safe to do so, in order to demonstrate and underscore his indignant rage at being kept overnight contrary to understanding he claimed they had. The Appellant did not leave. He stayed back and followed though the course of treatment recommended by the 2nd Respondent. The lower Court unquestionably evaluated the evidence and made findings of facts which flow from the evidence. There is no basis for an appellate Court to interfere. This issue number two is resolved in favour of the Respondents.

ISSUE NUMBER THREE
Whether the learned trial judge was correct in his findings and conclusions that the Respondents had the informed consent of the Appellant in carrying out the surgical procedure on the Appellant on 25/11/2006

SUBMISSIONS OF THE APPELLANT?S COUNSEL
This issue argued on pages 20-27 of the Appellant?s Brief. The Appellant submits that the claim was for damages for bodily trespass by unauthorised surgical operation and not

bodily trespass by mere touching in the ordinary process of medical examination. It was opined that the complaint was that the Respondents subjected the Appellant to surgical operations notwithstanding the express instructions in the Consent Form, Exhibit J, where he stated ?No Surgery Please?. It was argued that it became necessary for the Appellant to make the inscription ?No Surgery Please? because the Consent Form was blank in the column for the procedure to be performed, but that surprisingly the procedure was later inserted as Anal Stretch and SLIS after he had signed.

It was further submitted that the lower Court held that Anal Stretch and SLIS was surgery but turned around to hold that the Appellant gave limited consent for the Respondents to perform surgeries of Anal Stretch and SLIS but that the ?No Surgery Please? was in relation to the haemorrhoids and that surgery was not performed on the haemorrhoids. It was argued that the lower Court engaged in whataboutism when it indicted the Appellant for not crossing out the procedure Anal Stretch and SLIS, when the evidence of the Respondents was that it was the

Appellant that wrote Anal Stretch and SLIS on the Consent Form. It was posited that nothing written on the Consent Form would supersede the instruction of ?No Surgery Please? which the Appellant had written on the form especially where such contradicts the ?No Surgery Please?. It was maintained that based on the evidence Anal Stretch/SLIS could only have been written after the Appellant had signed the Consent Form inscribing ?No Surgery Please.?

It is the further submission of the Appellant that the surgeries which the Respondents performed and the procedure it entailed were not explained to the Appellant before they were performed. It was maintained that the dilation and pushing back of the haemorrhoids which is what was explained to the Appellant as what would be done was not the same with Anal Stretch and SLIS. It was conclusively submitted that the Respondents breached the Appellant?s instructions of ?No Surgery Please? irrespective of whether the haemorrhoids were cut off or not.

SUBMISSIONS OF THE RESPONDENTS? COUNSEL
The Respondents submit that the surgical procedure carried out

on the Appellant was explained to him in great detail by the 2nd Respondent as borne out by paragraphs 4, 5, 6 & 7 of the Appellant?s witness statement on oath at pages 15 and 16 of the Records. It was contended that the Consent Form, Exhibit J, signed by the Appellant authorised the 2nd Respondent to carry out Anal Stretch and SLIS, administer anaesthetics on the Appellant and further authorised the surgeon to take additional steps he deems necessary to ensure a successful operation procedure.

The Respondents further submitted that the ?No Surgery Please? written by the Appellant on the Consent Form could not have been a general limitation, but was a limited consent in relation to haemorrhoids and that the Respondents did not go beyond the consent given by the Appellant. Paragraph 9 of Exhibit K, the Appellants verifying affidavit in respect of the allegation of professional misconduct he lodged with the Medical and Dental Council of Nigeria was referred to as showing that the Appellant?s position was that he did not want surgery on his haemorrhoids and that it was in that con that the ?No Surgery Please?

inscribed on the Consent Form can be properly situated. It was asserted that the evidence showed that the Appellant?s haemorrhoids were intact when he left the Respondents Hospital.

It was argued that the Appellant did not discharge the burden of proving that the nature of the operation, Anal Stretch and SLIS, was written after he had signed the Consent Form. The case of OKEKE vs. EZE (2013) LPELR – 22455 (CA) was referred to. The Court was urged to hold that the Respondents had the consent of the Appellant to perform the surgical procedure and carried out the procedure within the limit or remit of the consent given by the Appellant.

RESOLUTION OF ISSUE NUMBER THREE
The contention under this issue requires a close examination of Exhibit J and the circumstances under which it was made. Exhibit J is the document by which the Appellant gave his consent to the procedure performed on him. The of Exhibit J which was signed by the Appellant and witnessed by the 2nd Respondent is as follows:
?CONSENT FORM
I OTTI C. ALEX HEREBY GIVE MY CONSENT FOR AN OPERATION ANAL STRETCH AND SLIS TO BE PERFORMED ON ME
THE NATURE OF THE

OPERATION/PROCEDURE HAS FULLY BEEN EXPLAINED TO ME BY THE SURGEON.
I ALSO GIVE MY CONSENT FOR AN APPROPRIATE ANAESTHETIC TO BE ADMINISTERED [sic]
THE SURGEON MAY TAKE ADDITIONAL STEPS HE DEEMS NECESSARY TO ENSURE A SUCCESSFUL OPERATION/PROCEDURE.
SIGNATURE No Surgery please.?

The inscription ?No surgery please? was written on the said Consent Form by the Appellant. As a starting point, the Appellant has argued that the operation to be performed was blank when he signed Exhibit J and was only inserted after he had signed. The Respondents have rightly submitted that the Appellant did not prove this assertion. Quite apart from that, the evidence on record does not bear out the fact that the procedure was inserted after the Appellant had signed the Consent Form. Under cross examination the Appellant testified as follows:
?Mr. Okwu: The Consent Form dated 25th November 2006 Exhibit J which you signed says clearly that you gave consent for him to do anal stretch and slis?
Cw1: I signed the consent form but I said no surgery (See page 112 of the Records)

At page 114 of the Records, the Appellant

testified further under cross examination as follows:
?Mr. Okwu: Apart from signing the consent Form you fill in your name and you also filled the procedure to be carried out on you?
Cw1: I did not fill it as you have indicated. It was completed and brought for me to sign.
It is therefore not correct that the procedure Anal Stretch and SLIS was inserted after the Appellant had signed Exhibit J.

The lower Court held that Anal Stretch and SLIS is surgery (See page 331 of the Records). This has not been contested in this appeal. So the Appellant consented for the surgery of Anal Stretch and SLIS to be performed on him. Did the inscription he put of ?No surgery please? annul this consent? I will return to that in a trice. It is rudimentary law that a person who signs a document is bound by it. In ENEMCHUKWU vs. OKOYE (2016) LPELR (40027) 1 at 16, Ogunwumiju, JCA stated:
?In the absence of fraud, duress or plea of non est factum, the signature of a person on a document is evidence of the fact that he is either the author of [the] contents [of] the document that are above his signature or that the contents have been

brought to his attention. It does not matter that he did not read the contents of the documents before signing it. The general rule is that a party is estopped by his deed and a party of full age and understanding is bound by his signature to a document, whether he reads or understands it or not. It is only a party that has been misled into executing a deed or signing a document essentially different from what he intended to execute or sign that can plead non est factum as a defence in [an] action against him.?
See also EZEUGO vs. OHANYERE (1978) 6-7 sc 171 at 184, ALLIED BANK vs. AKUBUEZE (1997) 6 NWLR (PT 509) 374 and IKOMI vs. BANK OF WEST AFRICA LTD (1965) LPELR (25243) 1 at 13-14.

The Appellant has neither contended that he did not read the contents of Exhibit J nor that he was misled into signing the same. Indeed the insertion of ?No surgery Please? is consistent with the Appellant having read Exhibit J. In addition to the consent for Anal Stretch and SLIS to be performed, the Appellant agreed that the procedure had been fully explained to him and further consented for anaesthesia to be administered on him and for the surgeon

to take any additional steps he deems necessary to ensure a successful operation/procedure.

Now, did the insertion of ?No surgery Please? annul the consent given for the procedure stated in Exhibit J? As earlier stated, the Appellant had made a complaint of professional misconduct against the 2nd Respondent to the Medical and Dental Council of Nigeria. In the affidavit verifying the complaint the Appellant made clear the surgery he was averse to. In paragraphs 9 and 10 of the said affidavit which was admitted as Exhibit K, the Appellant deposed as follows:
9. About 5.45 a.m on Saturday 25th November 2006, a Nurse came to me with a Surgery Consent Form which she claimed Dr. Ejike Orji asked me to sign. I off course refused to sign the form because the procedure I agreed with Dr. Ejike Orji to submit myself to was not surgery (by my layman?s understanding of ?surgery? as involving the cutting open the body and removing some parts). In fact, I had in the course of my consultations with Dr. Ejike Orji repeatedly told him that I do not want surgery on the haemorrhoids, and he had also repeatedly told me that his

recommended procedure was not surgery. The nurse went away with the form which I had refused to sign.
10. Some few minutes, after, Dr. Ejike Orji came back with the form. He explained to me that it was standard procedure that a patient signs such a form before any doctor can carry out any procedure, no matter how simple, on such a patient. He assured me for the umpteenth time that the procedure would not involve cutting or removing any part of my body, but that it would still be ethically wrong of him to go on with it without my written consent. In the light of this explanation, I signed the form. However, so that Dr. Ejike Orji does not present me with a fait accompli as he did in forcing me into an overnight admission in his hospital. I took the precaution of writing in bold prints on the form after signing it, the prohibition ?No Surgery Please.?

It seems clear therefore that the surgery which the ?No Surgery Please? inscribed by the Appellant alluded to, was that surgery should not be performed on the haemorrhoids. The said inscription ?No Surgery Please? did not in my deferential view annul or supersede

the consent given by the Appellant in the of Exhibit J. In resolving the question of whether the consent given by the Appellant covered the procedure performed by the 2nd Respondent, the lower Court stated as follows at page 327 of the Records:
?Having said that the Claimant voluntarily approached the Defendants initially for pain relieving medication and subsequently consented to physical examination, it is appropriate to ask at this juncture: – To what extent was the consent given by the Claimant to the Defendants?
In answering this question, I shall refer to the testimonies of the witnesses. The Claimant has maintained that all the 2nd Defendant told him he was going to do, that is, the procedure is the dilation and pushing back the haemorrhoid as he had repeatedly told him that he did not want surgery or be operated upon. I refer to Exhibit J titled CONSENT FORM? signed by the Claimant in which the procedure to be carried out on the Claimant was clearly written. It states thus:
I OTTI C. ALEX hereby gave my consent for an operation of ANAL STRETCH AND SLIS TO BE PERFORMED ON ME. The nature of

operational procedure has been fully explained to me by the Surgeon. I also give my consent for an appropriate anaesthetic to be administered. The Surgeon may take additional steps he deems necessary to ensure a successful operation/procedure.
Also, while being cross examined, the Claimant admitted telling the 2nd Defendant that he did not want surgery on his haemorrhoid and that before signing the Consent Form, he wrote ?No surgery please?. The question to ask here is whether the patient consented to the physical contact or procedure which was carried out on him by the Defendants

After expounding the law on the need for a medical professional to obtain proper consent in order not to be liable for trespass or assault when he administers treatment on a patient, the lower Court continued at page 330 thus:
Having admitted that the procedure was explained to him, the No surgery please written on the Consent Form in my view relates to his haemorrhoid. The consent is limited in nature and the limitation is that no form of surgery be carried out on his haemorrhoid. The procedure explained to him is Anal

Stretch and Slis- (Subcutaneous Lateral Internal Sphincterotomy). See Exhibit J. The Claimant wanted his pain to stop and he wanted the 2nd Defendant to do whatever procedure already explained to him except operate on the haemorrhoids.?
The lower Court then conclusively held:
The evidence as it stands before the Court shows that the Claimants haemorrhoid was not operated upon. The Defendants kept within the limited consent.
Now let me answer the question… Is Anal stretch and Slis a surgery From the definition of surgery, Anal Stretch and Slis is a surgery. The Claimant testified that the 2nd Defendant explained the procedure he was going to do on him which was ?dilation? and pushing back the haemorrhoid. I do believe ?No surgery please? written by the Claimant on the Consent Form was in relation to the haemorrhoid which was what led him to the Defendants? hospital as a result of the crucial pain he was having on the day in question. The ?No surgery please? could not have been a general limitation because there was no reason for that. The limitation consent was

therefore in relation to the haemorrhoid. From the foregoing, the Defendants did not go beyond the consent given by the Claimant. His haemorrhoid was still intact at the end of the procedure.?

The trial judge is a peculiar adjudicator. He sees the witnesses testify. He hears them. He observes their demeanour. After performing the duty of perception of evidence, the trial judge has the primary duty of evaluating the evidence and ascribing probative value thereto. Where the trial Court justifiably appraises the evidence and makes consequential findings of facts based on the evidence adduced, an appellate Court will not interfere: ONI vs. JOHNSON (2015) LPELR (24545) 1 at 11-14. Without a doubt, the lower Court unquestionably evaluated the evidence in this regard, there is therefore no basis to interfere. This issue number three will therefore be resolved in favour of the Respondent. The lower Court was correct in its findings and conclusion that Exhibit J gave the Respondents the informed consent to carry out the surgical procedure performed on the Appellant.

ISSUE NUMBER FOUR
On the basis of standard of proof applicable to civil claims, was

the learned trial judge correct in his decision that the Appellant failed to prove his claim for clinical negligence against the Respondents.

SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant submits that the lower Court was wrong when it held that the claim for clinical negligence was inadequately pleaded and also that the Appellant did not adduce evidence from an expert witness in similar medical practice. It was maintained that what was required to be established was that the surgeries of anal stretch and SLIS were not properly performed .It was asserted that Exhibits C, D and D1 was documentary evidence from experts who were in similar medical practice as the Respondents.

It was further argued that negligence could be proved by recourse to the common law presumption of res ipsa loquitur and that Exhibits C and D as well as Exhibit B spoke to res ipsa loquitur. The cases of UBN vs. B.U. UMEH & SONS LTD (1996) 1 NWLR (PT 426) 565 GBOLADE vs. OLADEJO (1994) 8 NWLR (PT 362) 281, A.A. CHANCHANGI & SONS LTD vs. N.R.C. LTD (1996) 5 NWLR (PT 446) 46 and STRABAG CONSTR CO. NIG LTD vs. OGARAKPE (1991) 1 NWLR (PT 170) 733 were referred

to on proof by res ipsa loquitur.

It is the further submission of the Appellant that the lower Court held that the procedure which was employed in the Appellant?s surgery was such that required the patient being in hospital for a few hours and can thereafter be treated as an out-patient, thus showing that the Appellant having remained on admission four days after the surgery until he had to seek medical attention elsewhere, eloquently spoke for itself in proof of the allegation of clinical negligence. It was conclusively opined that if the lower Court had not overlooked the pleadings and evidence on record it would have found that the claim for negligence was established on the balance of probabilities. The cases ofMOGAJI vs. ODOFIN (supra), AMOKOMOWO vs. ANDU (1985) 1 NWLR (PT 3) 530 and NWANKPU vs. EWULU (1995) 7 SCNJ 197 were relied upon.

SUBMISSIONS OF THE RESPONDENTS? COUNSEL
This issue is argued on pages 22-29 of the Respondents Brief. It was submitted that issues of negligence are questions of facts and not law, so it is determined on the circumstances, facts and evidence in support of the claim. It was stated that after the

Appellant discharged himself from the Respondents hospital, the hospital he went to issued a Medical Report, Exhibit C, which did not indicate or suggest that the Respondents were negligent. It was further opined that there is nothing in Exhibits D and D1, which were issued by the hospital in London suggesting that the Appellant was treated negligently at the Respondents hospital. It was argued that the Appellant failed to tender any reports of the anal ultra sound which the hospital in London advised would be done to confirm if there was any damage to his sphincter and which would have confirmed if the Respondents were negligent. It was stated that the Appellant withheld the said Report as it would have, if produced, confirmed that there was no damage to the Appellant?s sphincter mechanism videTHE PEOPLE OF LAGOS STATE vs. UMARU (2014) LPELR – 22466 (SC).

The Respondents referred to the case of OJO vs. GHARORO (supra) on the question of negligence in medical cases. The ingredients of the tort of negligence were referred to and it was asserted that it was for the Appellant to plead the particulars of negligence in sufficient detail and prove the

same. The cases of UTB vs. OZOEMENA (2007) LPELR- 3414 (SC), IGHRERINIOVO vs. SCC NIG LTD (2013) 4 SCNJ 194 at 204 and ABUBAKAR vs. JOSEPH (2008) 50 WRN 1 were referred to and it was maintained that the Appellant did not prove and sustain the claim of negligence against the Respondents. It was conclusively argued that the doctrine of res ipsa loquitur did not avail the Appellant in the absence of evidence of the specific acts of the Respondents which resulted in the negligence. The case of OJO vs. GHARORO (supra) at 206-207, 216-217, 223-224 and 225-226 was relied upon.

RESOLUTION OF ISSUE NUMBER FOUR
The crux of the Appellants contention under this issue, is that what he was required to establish is that the surgery performed by the Respondents was not properly performed and that the same was adequately pleaded and proved by Exhibits C, D, and D1 as well as based on the doctrine of res ipsa loquitur. In order to prove the tort of negligence, a claimant must prove that the defendant owed him a duty of care, that the duty of care was breached by the defendant and that the breach resulted in damage to the claimant. See IGHRERINIOVO vs. SCC NIG LTD (supra),

ENYIKA VS. SHELL B.P. PETROLEUM DEVELOPMENT CO. (1997) 10 NWLR (PT 526) 638 and ABUSOMWAN vs. MERCANTILE BANK (1987) 3 NWLR (PT 60) 196.

It cannot be confuted that the Respondents owed the Appellant a duty of care with regard to the procedure for the medical treatment. But the pertinent question in the diacritical circumstances of this matter is whether the Respondents breached that duty of care. The Appellant argues that Exhibits C, D, and D1 established the breach of the duty of care. We turn to the said Exhibits. The of Exhibit C is as follows:
The above named gentlemen who is a known diabetic and possibly hypertensive (status inconclusive) presented via our emergency room with a four-day history of pain following a subcutaneous lateral internal sphincterotomy at another hospital. He had a day?s history of diarrhea six days prior to presentation, which spontaneously resolved and noted subsequently that he had pain as well as a fleshy mass protruding from the anus the next day. He had a prior experience and thus tried to manually reduce it without success.
As the pain continued, he consulted a surgeon who then

performed a sphincterotomy on account of what he felt was an inflamed thrombosed external haemorrhoids as well as a fish bone (4cm long) noted. He presented four days postoperative. He was in severe pain and unable to lie down flat. He had been on pioglitazone 30mg daily and Melformin 1g daily.
On examination, he had a serious discharge with third degree haemorrhoids and a sentinel pile. He is afebrile, not pale, and not in any obvious respiratory distress. There is no lymphadenopathy. He also has a posterior anal fissure.
His pulse rate has been regular and his blood pressure range is 130-160/80-100mgHg. Chest and abdominal examination revealed no abnormality. His blood sugar control is presently satisfactory and he is on ice packs, laxatives, analgesics (IV Tramadol 50mg 8hourly) and intravenous antibiotics (Augmentin 1.2g and Metronidazole 500mg 8hourly). The patient is presently stable and pain is reduced.
He has requested for further management in the United Kingdom and he is thus being referred to you for further management.?

The first two paragraphs of Exhibit C narrates the history of the patient, paragraphs three and four

deal with how the examination of the Appellant at the hospital he want to upon discharging himself from the Respondents hospital was carried out and how he was managed; while the last paragraph narrates that the Appellant was upon his request referred to United Kingdom for further management. This brings us to Exhibits D and D1 which were issued by the hospital in London. The of Exhibit D is as follows:
?I saw this delightful gentleman in my clinic today. I am delighted to report that he has progressed reasonably well since the procedure carried out on Monday. At the time of his EUA he had incision in his ischiorectal fossa under which there was a fairly large cavity containing large amounts of clotted blood which was infected. I drained this cavity and dressed it appropriately. His wounds have healed reasonably well.
I believe he has a defect in his internal and external sphincter mechanism .My advice to him was to wait until February when he returns back to London and I will carry out an anal ultrasound. This should enable me to tell if he has had any sphincter injury from his previous procedure. Then I would be able to decide how to

manage his prolapsing haemorrhoids.?
Exhibit D1 states thus:
?I saw this delightful gentleman as an emergency. He had come from Nigeria. He was told that he had an injury from a fishbone in his ischiorectal fossa. I found that quite difficult to believe but nevertheless I took him to theatre and he had a fairly large complex fistula as I described in my previous correspondence.
I await to see him in February.?

It appears to me from the of Exhibits D and D1 that the determination by the London hospital on whether the Respondents properly performed the surgery on the Appellant was to be ascertained after an anal ultrasound. This is clear from the following pericope from Exhibit D:
?…..I will carry out an anal ultrasound. This should enable me to tell if he has any sphincter injury from his previous procedure.?
The report of the anal ultrasound was not tendered in evidence by the Appellant. In fact, the Appellant?s counsel informed the lower Court that they did not need the report. See page 119 of the Records.
?
It is rudimentary law that in order to find a medical professional guilty of

negligence, the situation has to be such that what he did is what professional colleagues would say that he really made a mistake and that he ought not to have made it. Put differently, the action would be such that falls short of the standard of a reasonably skilful medical professional: OJO vs. GHARORO (supra). I find nothing in Exhibits C, D and D1, which the Appellant relies on as proof of breach of duty of care by the Respondents, remotely suggestive that the medical procedure performed on the Appellant was not properly performed or that it fell short of the standard of a reasonably skilful medical professional.

Turning to the doctrine of res ipsa loquitur, it means that the thing speaks for itself. It is an evidential rule, the implication of which is to shift the burden of proof to the defendant where it is shown that the event complained of was more likely than not to have been caused by negligence in the absence of an explanation. The defendant will then have the burden of explaining what happened to negative the application of the doctrine. A claimant who relies on res ipsa loquitur only needs to prove the resultant accident and injury and then

ask the Court to infer from that, negligence on the part of the defendant. See MANAGEMENT ENTS LTD vs. OTUSANYA (1987) 2 NWLR (PT 55) 179 and OJO vs. GHARORO (supra) at 223-224. It follows that for the doctrine to avail the Appellant he would have proved the resultant injury from which the negligent actions of the Respondents could then be inferred. I find nothing in the evidence on record establishing any injury suffered by the Appellant, arising from the surgery performed by the Respondents on the basis of which negligence can be inferred. Exhibit C makes reference to ?serous discharge with third degree haemorrhoids and a sentinel pile.? It is in evidence that haemorrhoids surgery was not performed on the Appellant. The report of the anal ultrasound, which was stated would be performed in Exhibit D, was not tendered so the queried ?sphincter injury from his previous procedure? could not be ascertained.

Ineluctably, on the preponderance of evidence and balance of probabilities, the decision of the lower Court that the Appellant did not prove his claim for clinical negligence is correct. In resolving this issue against the

Appellant, it is pertinent to state that an appellate Court is concerned with whether the decision appealed against is correct and not whether the reason for the decision is correct: NDAYAKO vs. DANTORO (2004) LPELR (1968) 1 at 32. The decision of the lower Court in this regard is unassailable and there is no reason to disturb the same.

ISSUE NUMBER FIVE
Was the learned trial judge under an obligation to make an assessment of damages in regard to the claim filed by the Appellant, notwithstanding that the lower Court, after evaluation of the evidence tendered, and consideration of the merit of the case after a full trial, had wholly dismissed the Appellant?s claim.

SUBMISSIONS OF THE APPELLANTS COUNSEL
The terse and laconic submission of the Appellant on this issue is that it was incumbent on the lower Court to assess and state the amount it would have awarded as damages to the Appellant if it had not dismissed the Appellants case. It was opined that the necessity to do so is to enable the appellate Court easily know the quantification of damages to award if the appeal succeeds. The case of KAYCEE vs. P.S.C. LTD (1986) 2

NWLR (PT 23) 458 at 467 and IYERE vs. BFFM (2008) 18 NWLR (PT 1119) 300 were relied upon.

SUBMISSIONS OF THE RESPONDENTS? COUNSEL
The Respondents contend that in a judgment on the merits, a trial Court is not duty bound to state the amount it would have awarded as damages if the action had succeeded. It was posited that the issue of assessment of damages would only arise where damages have been proved; and that where damages are not proved, the trial Court would not involve itself in speculative calculation of damages. The cases of OGAR vs. JAMES (2001) FWLR (PT 67) 930, UBANI-UKOMA vs. SEVEN-UP BOTTLING CO. PLC (2009) LPELR ? 3915 (CA) and EDOBOR vs. OLOTU (2012) LPELR ? 9288 (CA) were called in aid.

RESOLUTION OF ISSUE NUMBER FIVE
The legal position in this regard is settled beyond peradventure. It is that in order to avoid undue prolongation of litigation and to prevent unnecessary expense, the trial Court should always, as a matter of duty assess the damages it would have awarded, even if the decision was against the party claiming damages: INTERNATIONAL ILE IND. NIG. LTD vs. ADEREMI (1999) 8 NWLR (PT 614) 268 at

301-302, YAKASSAI vs. MESSRS INCAR MOTORS LTD (1975) 5 SC 107 at 115-116 and C & C CONSTRUCTION CO. LTD vs. OKHAI (2003) LPELR (821) 1 at 31-32.
Let me hasten to state that the failure by the trial Court to assess the damages it would have awarded if the action had succeeded is not fatal. The law remains that where a trial Court has assessed damages, then an appellate Court can either agree with the assessment or in appropriate cases vary the amount. Where the trial Court did not make any assessment, like in this case, an appellate Court can make the assessment itself if the materials on which it can do so are available on the record. See OVERSEAS CONSTRUCTION CO. (NIG) LTD vs. CREEK ENTS (NIG) LTD (1985) LPELR (2835) 1 at 23 and MIDLAND GALVANIZING PRODUCTS LTD vs. COMET SHIPPING AGENCIES NIG LTD (2014) LPELR (24019) 1 at 24-25.
There is available on record, evidence on the basis of which this Court could have exercised its powers under Section 15 of the Court of Appeal Act to assess the damages to award if the appeal had succeeded. The materials remain available in the event of any further successful appeal to the apex Court. This issue is

resolved against the Respondents. The lower Court was not right when it failed to make an assessment of the damages it would have awarded if the action had succeeded.

CONCLUSION
The resolution of issue number five in favour of the Appellant is no more than cold comfort. The primary issues in contest in this appeal were all resolved against the Appellant. The appeal is therefore devoid of merit and it is hereby dismissed. The decision of the lower Court is affirmed. There shall be costs of N300, 000.00 in favour of the Respondents.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother Ugochukwu Anthony Ogakwu, J.C.A.

JAMILU YAMMAMA TUKUR J.C.A.: My learned brother UGOCHUKWU ANTHONY OGAKWU JCA afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

Appearances:

A. Olumide-Fusika, SAN with him, Mrs. R. Fawehinmi-Morakinyo & Ms. O. AkanoFor Appellant(s)

K.C. Okwu, Esq.For Respondent(s)

Appearances

A. Olumide-Fusika, SAN with him, Mrs. R. Fawehinmi-Morakinyo & Ms. O. AkanoFor Appellant

AND

K.C. Okwu, Esq.For Respondent