DR. VICTOR A. ORAEGBU v. MASTER IROROME SANIYO & ANOR
(2019)LCN/13292(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2019
CA/B/320/2013
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
DR. VICTOR A. ORAEGBU
[Carrying on medical practice in the name
And style of Syracuse Medical Clinic] Appellant(s)
AND
1. MASTER IROROME SANIYO
[Sued by his next of friend/guardian
ad litem MRS. ONAJOMO SANIYO]
2. MR. DOMINIC SANIYO Respondent(s)
RATIO
WHETHER OR NOT BURDEN OF PROOF RESTS ON THE PARTY WHO ASSERTS THERE WAS A CONTRACT NWTEEN PARTIES
It is trite that the burden of proof rests on the party, whether Plaintiff or Defendant, who asserts that there was a contract between the parties. See AKANDE V. ADISA (2002) 15 NWLR Pt. 1324 Page 538. See also OGBUANYINYA V. OKUDO (No.2) (1990) 4 NWLR Pt.146 Page 551. PER EKPE, J.C.A.
WHETHER OR NOT THERE MUST BE SPECIAL PROOF FOR AN AWARD OF DAMAGES TO BE GRANTED
It is however trite that for an award of damages to be granted there must be special proof thereof. Where a party sets out to adduce evidence in proof of special damages claimed, what is required is qualitative and credible evidence in order to be entitled to the special damages. See S.P.D.C. V. TIEBO & ORS (2005) 127 LRCN 1274 @ 1309 ? 1310. PER EKPE, J.C.A.
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the decision of the High Court of Delta State sitting in Warri delivered on the 15th day of October, 2012 in Suit No. W/273/2009, wherein the trial Judge F.O. Ohwo, J dismissed the claim of the Appellant. This Appeal is predicated on that Judgment.
The facts of this appeal can be summarized as follows:
By a writ of summons dated 29th day of June 2009, the Plaintiff/Appellant sued the Defendants/Respondents claiming the following reliefs:
1. A declaration that the Plaintiff is entitled to be paid his professional bill of charges/costs of treatment of the 1st Defendant infant brought to the Plaintiff by his guardian ad litem next friend equally joined in this action.
2. The sum of N480,600.00 (Four Hundred and Eighty Thousand, Six Hundred Naira Only) being the interim bill of charges/costs incurred by the Plaintiff in treating the Defendants? son Irorome Saniyo of gun shot injuries in his head from 05/06/09 to 27/06/09 as contained in the bill of charges dated 24/06/09 already delivered to the Defendants.
?3. A declaration
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that under and by virtue of the terms of the contract between the Plaintiff and the 1st Defendant herein, the 1st Defendant cannot be discharged from the Plaintiffs Syracuse Clinic at No. 12, Willie Street, Warri against the advice of the Plaintiff or Viet armis.
4. As against the 2nd Defendant only, the sum of N10,000,000 (Ten Million Naira Only) being special and general damages for intimidation, unlawful harassment, trespass and verbal assault in that on or about 24/06/09, the said 2nd Defendant in an atmosphere of ingratitude, and at the Plaintiffs? place of business (Syracuse Clinic, No. 12 Willie Street, Warri), intimidated, harassed and threatened mayhem to the Plaintiff by himself and with the aid of youths and militants and break into the plaintiffs Syracuse Clinic to discharge the 1st Defendant from the said Clinic Viet armis and against the advice of the Plaintiff.
5. An Order of perpetual injunction restraining the Defendants herein, whether by themselves, their servants, agents, youths, militants, volunteers, cohorts, or howsoever from any other or further acts of intimidation, harassment, trespass, threats, mayhem and or unlawful
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conduct towards the Plaintiff particularly for the Plaintiffs efforts at saving the life of the 1st Defendant whose skull was blown open by gun shot wounds.
6. Any other relief or reliefs, order or orders that the Honourable Court may deem fit to make having regard to the circumstances and justice of this case.
The storyline of the Plaintiff/Appellant is that he is entitled to be paid his professional bill of charges/costs of treatment of the 1st Defendant infant who was brought to the Plaintiff?s clinic by his next friend/guardian ad idem equally joined in this action. This contention of the Plaintiff/Appellant however is that the Judge erred in Law when he held that there was no legally binding contract between the claimant and the 1st Defendant.
In proof of his case, the Plaintiff/Appellant testified for himself and called 3 other witnesses, the Defendants/Respondents on their part testified and called 2 other witnesses.
?
The Appellant contended that he carried out his professional duty by treating the 1st Defendant/1st Respondent. He claimed he has been injured both in his professional calling and personally by the action of the
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Defendants. Many Exhibits were tendered and respective counsel filed final addresses.
In a considered Judgment delivered on the 15th day of October 2012, the learned trial Judge found as a fact that a wrong had been committed against the Defendants by the claimant in this suit. On the basis of this finding the trial Judge dismissed the claims of the Plaintiff/Appellant and entered Judgment for the Defendants in the counter-claim against the claimant.
Dissatisfied by the Judgment of the High Court, the Appellant appealed to this Court by a notice of appeal filed on the 22nd of October 2012 wherein they set out five (5) Grounds of Appeals.
The Appellant from the five (5) Grounds of Appeal distilled the following issues for determination:
1. Whether or not there was any legally binding contract between the Claimant/Appellant and the 1st Defendant/Respondent, contrary to the decision of the learned trial Judge that there was none. This issue arises from ground one of the grounds of appeal.
2. Whether or not the Claimant/Appellant sufficiently gave notice of particulars of his special damages to the Defendants/Respondents so as not to have
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taken them unawares at the trial, contrary to the decision of the learned Judge that the special damages claimed by the Appellant were not particularized. (This issue arises from ground two of the grounds of appeal).
3.Whether or not the Claimant/Appellant proved his case on the balance of probability or preponderance of evidence to be entitled to succeed in his case contrary to the decision of the learned trial Court that he did not. (This issue arises from grounds 4 (four) of the grounds of appeal).
4. Whether or not the Respondents made out any case against the Appellant or had any legally admissible or usable evidence in support of their case to entitle them succeed in their counterclaim after admitting in evidence that the debt, duration and cost of the treatment could not be predetermined and having not sworn to any subsequent witness deposition to support their amended defence/counterclaim, contrary to the decision of the learned trial judge. (This issue arises from grounds 3 (three) and 5 (five) of the grounds of appeal).
The Respondents also on their part formulated a sole issue for determination:
Whether having regard to the
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pleadings and evidence before the Court, the learned trial Judge was right in dismissing the reliefs sought by the Appellant and in entering Judgment in favour of the Respondent.
The issues distilled by both learned counsel in my view can conveniently be compressed into one straight forward issue of narrow compass as follows:
?Whether on the facts and circumstances of this case, the High Court was right in holding that there was no credible evidence to support the claims of the Appellant and proceeded to dismiss same.?
Learned Counsel for the Appellant argued that the decision of the learned trial Judge set out above is clearly perverse, inequitable and decidedly unlawful and that there is decidedly no other basis for the learned trial Judge to suo motu open up or go into the question of the enforceability of a contract that had already been part performed by the Defendants? payment of deposit and wholly performed by the Appellant, who practically brought the Defendants? child back to life.
He submitted that a binding and subsisting contract for medical services was sufficiently established before the trial Judge for
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which he ought to have found whether or not to order quantum meruit or pro-rata payment and not an outright dismissal of the Appellant?s case.
He made reference to the case of BEST (NIG) LTD V. BLACKWOOD HODGE (NIG) LTD (2011) ALL FWLR (Pt 573) SC 1955 at 1969 Paras C. where Per Fabiyi JSC stated that:
?Parties are bound by the terms agreed to in a contract, if the conditions for the formation of a contract are fulfilled by the parties thereto, they will be bound. It is not the function of a Court to make a contract for the parties or to rewrite the one which they have made?.
Learned counsel argued that on the Appellant?s amended statement of claim, the Appellant pleaded what is due to him in the bargain and gave notice to the Defendants, and that these bills were front loaded and served with the writ of summons and statement of claim which were subsequently admitted in evidence without objections as Exhibits ?C5? and ?C5A? at the trial.
?
He submitted that none of these specific items of claim was challenged and that the trial Judge acted in error to hold that the special damages claimed either
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in Exhibit ?C5? or ?C5A? were not ?specially? particularized, pleaded or given notice to the adversary. He made reference to the case of ASMAN MAN AND MECH. CO. LTD. V. SPRING BANK (2012) ALL FWLR (Pt. 613), 1864 at 1906 paras G where per Tur J.C.A stated that under pleadings reference to a document brings into the pleadings the whole contents of that document.
He opined that the imaginary scale of Justice upon which the Courts test the preponderance of evidence ought not to be affected by a mere dismissive stance of the trial Judge. He stated that the grounds of belief ought to be within the confines of the law and precedence as those phrases have been held by the superior Courts of Judicature as not being magic words.
He further submitted in UDENGWU V. UZUEGBU (2003) 13 NWLR (Pt. 836) S.C 136 at 152 paras C-D where per Uwaifo JSC stated thus:
?A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence; that it misconceived the thrust of the case presented; or took irrelevant matters into account which substantially formed the basis of its
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decision; or went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or committed various errors that faulted the case beyond redemption. The hallmark is invariably, in all this, a miscarriage of justice, and the decision must be set aside on appeal.
In reply, learned counsel to the Respondents claimed that the learned trial Judge gave a detailed consideration to the reliefs sought by the Appellant in the Judgment. He stated emphatically that in dismissing the Appellant?s reliefs, the learned trial Judge held, among others:
?This Court is bound to refuse to give any effect to Exhibit C3 unless the presumption of undue influence is rebutted by the Claimant the claimant must show that Exhibit C3 was not obtained by undue influence and the usual way of doing this is by showing that the other party i.e DW2 who signed the Exhibit C3 had independent advice before entering the transaction
Where the terms of a contract are unsettled or certain as in Exhibit C3, there will be no valid contract enforceable at law?
?
He submitted that there is no ground of appeal against the
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findings that there was undue influence and that the trial Judge held that the claim in special damages was not specially pleaded as required by law. See AMADI V. CHINDA & ORS. He submitted that special damages must be particularized or specified in the pleadings before a Plaintiff or claimant will be permitted to lead evidence on them. See ODUMOSU V. A.C.B. (1976) 11 SC 58. He also referred to the case of R.E.A.N V. ANUMNU (2003) 6 NWLR Pt. 815 52 at 110-111, and submitted that bringing the content of a pleaded document into the pleadings does not obviate the necessity of particularizing items of special damages in the pleadings.
He claimed that Exhibit C5A was introduced into the pleadings when the Claimant/Appellant amended his statement of claim. He submitted that a statement of claim cannot be amended to plead fact or relief which came into being after the writ was issued.
He argued that the Appellant did not in his pleadings and evidence state the types and quantity of drugs and the amount of each.
He further submitted that a claim of special damages must be proved strictly. See EBE V. NNAMANI (1997) 7 NWLR (Pt. 513) 479 at paras A-B,
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Ratio 8.
He said both Exhibit C5 and C5A were made to prop up the Appellant?s fictitious and gold digging claim. That on the faces of both Exhibits, there is nothing to show that one was interim and the other final.
Learned counsel contended that there was no contract between Appellant and the 1st Respondent. That 1st Respondent cannot contract being 5 years old at that time and that there is no proof of the allegations which are criminal in nature.
The learned counsel to the Respondents in conclusion submitted that based on the evidence before the trial Court, the trial Judge found as a fact and held as follows:
?I have placed the evidence adduced by the claimant and the Defendants in an imaginary scale and that of the Defendants far outweighs that of the claimant. The Defendants proved their case on the balance of preponderance of evidence. I find that a wrong has been committed against the Defendants by the claimant in this suit. Once there is a wrong, there must be a remedy. A wrong must not necessarily be remediable under a known head of tort before it is justiceable.?
RESOLUTION:
Going through the Record
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of Appeal and X-raying the entire grounds of Appeal of the Appellant and the reply by the Respondents, it is very clear to me that the issues formulated by both counsel revolve round a sole issue to wit:
?Whether on the facts and circumstances of this case, the High Court was right in holding that there was no credible evidence to support the claims of the Appellant and proceeded to dismiss same.?
To begin with, there must be credible evidence to justify Judgment being given in favour of the Appellant.
?
The history of the case is that on the 31st October 2011, the Plaintiff/Appellant opened his case and gave evidence to the effect that the 1st Defendant/1st Respondent then an infant was rushed to the Appellant?s clinic (Syracuse Medical Clinic) Warri by his mother in company of two others. The Plaintiff claimed that he administered treatment on the 1st Respondent on a head injury sustained from a gun shot which the 2nd Defendant refused and without payment of the accrued bills sought to remove the patient and his guardian from the Appellant?s clinic. The Plaintiff called three (3) witnesses in proof of his case. The
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Plaintiff and his witnesses were cross-examined by the Respondents. The Respondents called two (2) witnesses who also testified and were cross-examined by the Appellant.
The bone of contention with regard to this issue is the payment of the professional fees of the Appellant. The crucial question here is: was there an enforceable contact between Appellant and Respondent?
The Appellant however contended that he had an agreement with the 1st Respondent?s guardian ad idem who signed a document that was given to her to sign by the Appellant. The Appellant further claimed that he was intimidated and harassed by the Respondents. It is trite that the burden of proof rests on the party, whether Plaintiff or Defendant, who asserts that there was a contract between the parties. See AKANDE V. ADISA (2002) 15 NWLR Pt. 1324 Page 538. See also OGBUANYINYA V. OKUDO (No.2) (1990) 4 NWLR Pt.146 Page 551.
The learned trial Judge is of the opinion that there is no privity of contract entered into in Exhibit C3 between the Appellant and the 1st Respondent. In ordinary legal parlance, a contract is an enforceable agreement between two parties. See
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PRINCE OIL LIMITED V. GUARANTY TRUST BANK PLC. All FWLR (2016) Pt.841 Pg. 1450.
Like I stated earlier, the main issue in the instant case borders on the claim of whether on the facts and circumstances of this case, the High Court was right in holding that there was no credible evidence to support the claims of the Appellant.
It is however trite that for an award of damages to be granted there must be special proof thereof. Where a party sets out to adduce evidence in proof of special damages claimed, what is required is qualitative and credible evidence in order to be entitled to the special damages. See S.P.D.C. V. TIEBO & ORS (2005) 127 LRCN 1274 @ 1309 ? 1310.
?
A cursory perusal of Exhibit 3 shows a letter of guarantee to enable the claimant save the life of the 1st Respondent. What more can be deduced by way of contract between a doctor and his patient? There is no gainsaying the fact that if the Respondent had not signed the said Exhibit 3 to enable the benevolent doctor treat his patient, he would obviously have died of the gun shot injuries. To my mind; a medical doctor does not have to particularize every item of treatment of his patients
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in order to arrive at a medical bill.
Even if there had been no privity of contract between the parties aforementioned, the mere fact that the 1st Respondent through his guardian ad idem walked into the Appellant?s hospital to seek treatment for his gun shot injury reveals that there is already a tacit understanding of a contract to pay for his treatment. The 1st Respondent did not need a separate contractual agreement to pay for his treatment. It is well understood that patients who visit hospitals are expected to pay for their treatment except the hospital undertakes to treat the said patient free of charge.
In the instant case, the mere fact that the 1st Respondent was saved from dying from his gun shot wounds is enough to justify the Appellant?s medical bill as evidenced in Exhibit C3.
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Let me however conclude that it is common knowledge that patients get detained in hospitals in order for the relations to come forward to pay up their medical bills. That is the very reason why some philanthropists visit hospitals and undertake to off set some medical bills which some poor or runaway patients fail to pay at the end of
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treatment.
In sum, it is my ardent view that the Appellant is hereby entitled to the following reliefs:
1. A declaration that the Plaintiff is entitled to be paid his professional bill of charges/costs of treatment of the 1st Defendant infant brought to the Plaintiff by his guardian ad idem next friend equally joined in this action.
2. The sum of N480,600.00 (Four Hundred and Eighty Thousand Six Hundred Naira Only) being the interim bill of charges/costs incurred by the Plaintiff in treating the Defendants? son Irorome Saniyo of gun shot injuries in his head from 05/06/09 to 27/06/09 as contained in the bill of charges dated 24/06/09 already delivered to the Defendants.
3. As against the 2nd Defendant only, the sum of N5,000,000.00 (Five Million Naira Only) being special and general damages for intimidation, unlawful harassment, trespass and verbal assault in that on or about 24/06/09, the said 2nd Defendant in an atmosphere of ingratitude, and at the Plaintiffs? place of business (Syracuse Clinic, No. 12 Willie Street, Warri), intimidated, harassed and threatened mayhem to the Plaintiff by himself and with the aid of youths and
16
militants and break into the plaintiffs Syracuse Clinic to discharge the 1st Defendant from the said Clinic and against the advice of the Plaintiff.
4. An Order of perpetual injunction restraining the Defendants herein, whether by themselves, their servants, agents, youths, militants, volunteers, cohorts, or howsoever from any other or further acts of intimidation, harassment, trespass, threats, mayhem and or unlawful conduct towards the Plaintiff particularly for the Plaintiffs efforts at saving the life of the 1st Defendant whose skull was blown open by gun shot wounds.
The Respondents are hereby restrained from any further acts of intimidation or harassment or any unlawful conduct towards the Appellant particularly for the latter?s effort at saving the life of the 1st Respondent.
From the totality of all the above, this appeal is hereby allowed and the Judgment of the lower Court delivered on the 15th day of October 2012 in Suit No. W/273/2009 by F.O. Ohwo J. (as he then was) is accordingly set aside.
Cost of N50,000.00 is also awarded in favour of the Appellant against the 1st and 2nd Respondents.
?Appeal Allowed.
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CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My Lord P.M. EKPE, JCA obliged me with the draft of the lead judgment just delivered. I agree with the conclusion that the lower Court’s judgment be set aside.
For the reasons advanced in my learned brother’s lead judgment, I also allow the appeal and set aside the judgment of the trial Court in Suit No. W/273/2009 delivered on the 15th of October, 2012 by F.O. Ohwo, J. (as he then was).
I abide by the order as to costs made by Ekpe, JCA in the lead judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
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Appearances:
S.O. OLUKU Esq.For Appellant(s)
IRIKEFE OVWIGHORIENTAFor Respondent(s)
Appearances
S.O. OLUKU Esq.For Appellant
AND
IRIKEFE OVWIGHORIENTAFor Respondent
