GEORGE ABI v. CENTRAL BANK OF NIGERIA & ORS. (2011)

GEORGE ABI v. CENTRAL BANK OF NIGERIA & ORS.

(2011)LCN/4597(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of June, 2011

CA/A/262/2007

RATIO

INTERFERENCE WITH THE EXERCISE OF DISCRETION: WHEN IS AN APPELLATE COURT ENTITLED TO INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

UNCHALLENGED EVIDENCE: WHETHER AN UNCHALLENGED EVIDENCE CAN BE A CONCLUSIVE PROVE OF A PLAINTIFF’S CASE

Though document speaks for itself the object for which the document was tendered must be linked to the point being made in oral evidence in support of the case. The settled law that evidence unchallenged and uncontradicted is deemed admitted and ought to be accepted by the court is not without an exception. The unchallenged evidence cannot be conclusive prove of a plaintiff’s case when the realm of law involved specifically sets out conditions to be met before the court can hold the plaintiffs case succeeds. PER REGINA OBIAGELI NWODO, J.C.A

INADMISSIBLE EVIDENCE: WHETHER THE FAILURE TO OBJECT TO THE ADMISSIBILITY OF AN INADMISSIBLE EVIDENCE WILL PREVENT ITS INADMISSIBILITY FROM BEING RAISED AND DETERMINED ON APPEAL

The position of the law as set out in several decided cases by the appellate courts is that where an inadmissible evidence is admitted without objection at the trial, failure to object to its admissibility at the trial will not prevent its inadmissibility from being raised and determined on appeal as the appellate court has the inherent jurisdiction to exclude it or expunge it from the records notwithstanding that counsel at the trial court did not object to its admissibility. See Agbi vs. Ogbeh (2006) 11 NWLR (Pt. 990) 65 SC; Onochie vs. Odogwu (2006) 6 NWLR (Pt. 975) 65 SC; Degac 1 of Dere vs. Dagac I of Ebwa (2006) 7 NWLR (Pt.979) 382 SC The party who intends to object at the appeal stage must raise same with leave of court as applicable as a ground of appeal. PER REGINA OBIAGELI NWODO, J.C.A

RES IPSA LOQUITUR: CIRCUMSTANCES WHEN THE DOCTRINE OF RES IPSA LOQUITUR WILL NOT APPLY

The Supreme Court in Ojo v. Gharoro (2006) 10 NWLR (pt.987) SC 173. Per Oguntade JSC had this to say on when the doctrine will not apply. “In relying on res ipsa loquitur, a plaintiff merely proves the resultant accident and injury and then asks the court to infer therefrom negligence on the part of the defendant. The doctrine will not apply where: i. the facts proved are equally consistent with accident as with negligence; ii. there is evidence of how the accident happened and the difficulty (as in this case) arise merely from an inability to apportion blame between two negligent drivers. If these two drives are servants of the some master the position may be different: Skinner v. L.B. & S.C. Rv (1850) 5 Exch.787. If there is evidence of how the occurrence took place, then an appeal to res ipsa loquitur is misconceived and inappropriate. There again, the question of the defendant’s negligence must be determined on the available evidence. In other words the doctrine of ‘res ipsa loquitur’ is not meant to supplement inconclusive evidence of negligence on the part of a plaintiff. Rather it is meant to apply where there is no other proof of negligence than the accident itself. PER REGINA OBIAGELI NWODO, J.C.A

NEGLIGENCE: WHAT AN APPELLANT MUST PROVE FOR A CLAIM IN NEGLIGENCE TO SUCCEED

For a claim in negligence to succeed the appellant must prove that the respondents owed him a duty of care and was in breach of that duty. PER REGINA OBIAGELI NWODO, J.C.A

RES IPSA LOQUITUR: CIRCUMSTANCE WHEN THE DOCTRINE OF RES IPSA LOQUITUR WILL APPLY

NEGLIGENCE OF A DOCTOR: CIRCUMSTANCES IN WHICH A DOCTOR WILL NOT BE HELD LIABLE FOR NEGLIGENCE

The courts have long recognized that there is no negligence if a doctor exercises the ordinary skill of an ordinary competent man professing to have that special skill. The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill is the direction to the jury given by Mcnair J in Bolam v. Friern Hospital Management Committee (1957) 2 All England Reports 118 at page 122. “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the some thought. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.” The above standard is the test for which a doctors’ function of diagnosis and treatment is considered. PER REGINA OBIAGELI NWODO, J.C.A

JUSTICES:

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

GEORGE ABI – Appellant(s)

AND

1. CENTRAL BANK OF NIGERIA
2. ABUJA CLINICS
3. DR. ETINAM UDOM – Respondent(s)

REGINA OBIAGELI NWODO, J.C.A (Delivering the Leading Judgment): The appellant as plaintiff in the Federal High Court, Abuja Judicial Division commenced a suit by writ of summons and statement of claim filed on 29/07/04 wherein he claimed with interest at the prevailing rate up to the date of judgment and thereafter until final payment as follows:-
(a) A declaration that the 1st defendant is vicariously liable to the plaintiff for medical negligence of its employed agent Abuja Clinics whose Dr. Etinam Udom negligently diagnosed, administered wrong medication which caused the plaintiff to become permanently deaf,
(b) An order directed to the defendant to pay the plaintiff N500,000,000.00 special damages and N500,000,000.00 general damages.
In response the 1st defendant filed their statement of defence on 08/11/04. The 2nd and 3rd defendants filed a joint statement on 09/12/04. The plaintiff filed a reply to the set of defendants’ statement of defence. One witness testified for the plaintiff and two witnesses for the defendants.
The facts as presented by the appellant in the court below is that on 26th day of February 2001, he took ill and at about 12 midnight was taken to the 2nd respondent, the Abuja clinic by his wife and neighbour. At Abuja clinic one of the retainer hospitals of the 1st respondent, Central Bank of Nigeria where he is a staff, he was examined, interviewed and attended to by Dr. Udom, the 3rd respondent.
His claim is that Dr. Udom negligently diagnosed, prescribed and administered to him drugs that made him deaf. He maintained he was admitted in the hospital and after the diagnosis, that he was suffering from meningitis the 2nd and 3rd respondents administered him with a variety of drugs including gentamycin which made him permanently deaf.
He was referred to Lagoon Hospital Lagos where the doctor recommended overseas surgery and treatment. He was not sent overseas by the 1st respondent but referred to Saudi clinic where he was given hearing Aid. He retired voluntarily from the Central Bank of Nigeria (CBN). The 1st respondent case is that as a staff of the bank the appellant went to Abuja clinic one of their retained hospital for treatment and was diagnosed with cerebrospinal meningitis (CSM) and admitted.
The appellant’s hospital file in the Abuja clinic shows that appellant had a three day history of fever, neck pain, waist pain and difficulty in hearing and passing of urine. During the cause of treatment, he developed CSM complications, including sight, loss of hearing, incoherent speech and loss of balance. When his condition stabilized he was seen by a consulting ENT specialist (DW2) in respect of his loss of hearing who prescribed further drugs removing gentamycin.
When he was discharged the 1st respondent sent him to Lagoon Hospital, Lagos for a second opinion because of his lack of hearing. The 2nd and 3rd respondents’ as expert witnesses, acknowledged in evidence the fact that the appellant had meningitis and profound sensory nasal hearing loss, which is the commonest complication of meningitis. At the end of the evidence of witnesses the parties filed and exchanged written address which were adopted in court.
The trial court in a reserved judgment delivered on 20/01/2007 held
“The plaintiff has failed to prove his case and his claims therefore fail and cannot then be entitle to any of these damages claimed and the case is therefore dismissed. I so order.”
The appellant being dissatisfied with the above decision of the Federal High Court caused a Notice of Appeal, containing seven grounds of appeal to be filed on 03/07/07. The 1st respondent also filed a Notice of Cross Appeal on 17/11/08. The parties through counsels filed and settled briefs of argument in accordance with the rules of court. At the hearing of the appeal on 21/03/2011. The learned counsel G.N.A. Enebeli adopted the appellants’ brief of argument settled by him and filed on 05/11/07. Also the reply brief filed 8th April 2009. Professor J.O. Fabunmi with Seus Olokegun for the 1st respondent/Cross appellant adopted the brief filed on 26/03/09 in response to the main appeal and the cross appellants brief filed on 26/03/09. He also adopted the respondent/cross appellant reply brief filed on 01/12/09 and deemed filed on 12/05/10. He urged the court to allow the appeal. Learned counsel to the 2nd and 3rd respondent adopted their brief of argument filed on 17/11/08. Mr. G.N.A. Enebeli learned counsel for the appellant in the appellants brief distilled four (4) issues from the seven grounds of appeal for determination. The four issues read thus:-

ISSUE (1)
Whether the documentary evidence of the plaintiff in Exhibit. B, and B1, unchallenged and uncontradicted by all the defendants and accepted and admitted by the trial court which refused or failed to consider and evaluate same is conclusive proof of the plaintiff’s claim which requires no other or further proof, or any expert to prove what in any event nobody doubts.
ISSUE 2
Whether in the absence of the 3rd defendant who is the tortfeasor proper, at the trial, and from who is required the much expected acceptable, and reasonable explanation as to how the injury to the plaintiff could have happened without his negligence, the plea of RES IPSA LOQUITUR which the learned trial judge, again, refused and failed to consider, applies and succeeds.
ISSUE 3
Whether the judgment of the learned trial judge is perverse as she failed to make proper use of her position and opportunity as the one who saw and heard the witnesses to evaluate all the evidence before her which perverseness and failure resulted in wrong conclusions and miscarriage of justice.
ISSUE 4
Whether the plaintiff has suffered any injury or damage while in the hands of and under the management and control the Defendants particularly the 2nd and 3rd defendants and therefore entitled to remedy as he claims.

The learned counsel for the 1st respondent Professor J.O. Fabunmi distilled the following four issues for determination:-
1. Whether in the light of all the evidence adduce at the trial, Exhibit B and B1 in their true meaning and effect failed to prove that the 3rd respondent negligently treated the Appellant as a result of which the Appellant suffered loss of hearing.
2. Whether the Respondents successfully rebutted the presumption of negligence illustrating to the specific doctrine of res ipsa loquitor.
3. Whether the Plaintff/Appellant failed to prove his claim for damages.
4. Whether the judgment subject of this appeal is perverse.
Maureen Onyiuke representing the 2nd and 3rd respondents raised one sole issue for determination but still proceeded to respond to the four issues distilled for determination by the appellant. I have looked at the issues distilled for determination by the parties. I believe the issues distilled by the appellant will adequately address the complaints in the notice of appeal. I will look at the issues as formulated thereon.
Issue one, is whether the documentary evidence of the plaintiff in Exhibit B and B1, unchallenged and ncontradicted by all the defendants and accepted and admitted by the trial court which refused or failed to consider and evaluate same is conclusive proof of the plaintiffs claim which requires no other or further proof, or any expert to prove what in any event nobody doubts.
It is the submission of the learned counsel for the appellant that the plaintiffs, evidence in Exhibit B and Exhibit B1 were not contradicted or challenged. He is therefore entitled to judgment.
He referred to Sunday Modupe vs. the State (1988) All NLR 371 at 375.
It is his further submission that where the trial judge fails to consider and evaluate a piece of vital evidence uncontradicted and admitted by the trial court the party giving such evidence is entitled to judgment.
He cited Nwabuoku v. Otti (1961) All NLR 507 at 511; Goddy Umeobi v. Otukoya A.E. (1978) All NLR 140.
It is his submission that Exhibit B and B1 which was not contradicted is conclusive proof of the appellants claim and he urged this court to enter judgment in his favour.
The learned counsel for the 1st respondent submitted that Exhibit B and B1 in their true meaning and effect cannot stand to prove that 3rd respondent negligently diagnosed and treated the appellant in consequence of which they said appellant suffered loss of hearing. It is his contention that Exhibit B and B1 were tendered and admitted for the purpose of proving the fact that central Bank Nigeria (hereinafter referred as CBN) staff clinic actually referred the appellant to lagoon Hospital, Lagos for evaluation and management of his “hearing defect” and nothing more. It is his further submission that Exhibits B and B1 are purely CBN staff clinic affair, as to import it in proof of negligent breach of duty of care by the 3rd respondent and that such will offend section 11(1) and (2) of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990.
It is his contention that the contents of Exhibit B1 did not form part of the medical record of the appellant and that the maker is not known. He submits that since all the statutory requirements and foundation for reliance on the material content of Exhibit B1 have not been met it cannot be used to prove the case of appellant and that the court below was right in not relying on it, as it cannot be used in proof of the cause of injury complained of or the negligent breach of duty against the 3rd respondent.
The learned counsel for the 2nd and 3rd respondents contends that the statement in Exhibit B2 was not made by the respondents nor made on their behalf but by an unknown person who neither treated the appellant nor was called as a witness and cannot be proved as an admission against them. It is her submission that the statement that “the plaintiff sustained hearing defect following treatment with gentamycin does not qualify as” one which has not been controverted or contradicted in any way to entitle the court to believe and adopt it as conclusive proof of the appellants case. She argued that the respondent proved the appellant had other medical conditions such as Meningitis, Hypertension and Diabetes which are capable of causing his deafness and the appellant did not contradict that fact.
Learned counsel for the 2nd and 3rd respondents argued that the appellant is under a legal duty not only to prove that gentamycin caused his deafness but also that same was due to the respondents’ negligence in administering the drug. Her point is that there is uncontradicted evidence that the drug causes deafness as a common side effect without negligence such that no liability will accrue if the plaintiff fails to establish that it was negligently administered by the respondents.
Learned counsel submits that the appellants testimony fell short of the legal standard of proof required to establish his case herein as was most recently put forward by the Supreme Court in the case of Ojo vs. Gharoro (2006) 10 NWLR (Pt.987) 173
In reply on point of law, the learned counsel for the appellant submitted that all the respondents’ arguments on Exhibit B and B1 is belated and cannot be entertained on appeal as they had failed to put their argument at the address stage before the trial court.
He further stated that the 2nd and 3rd respondent in their joint statement of defence averred they were not in a position to react to paragraphs 17 and 19 of the statement of claim. That their failure to address same in their finals written address is not surprising but that they are barred from proffering arguments on Exhibit B and B1. It is his submission that the respondents having remained silent at the trial court on Exhibit B and B1 are barred from making any argument on the point.
He relied on the Supreme Court decision in N.E Ekpe vs. Fagbemi (1978) All NLR 107 ratio 1 and Particularly Pg 111 Per Bello JSC
The fulcrum of issue one is that Exhibit B and B1 were admitted in evidence by the trial court but not evaluated and since the exhibits are uncontradicted evidence the appellant is entitled to judgment. Ineffect it poses the question whether the trial court was wrong when she did not rely on Exhibit B and B1.
The trial court admitted Exhibit B and B1 in the course of the testimony of the appellant as PW1. Exhibit B is a reference form from the Central Bank of Nigeria Staff Clinic issued on 2nd of May, 2001 by a doctor, whose name is not stated, referring the appellant to Lagoon Hospital Lagos. It reads thus
“This gentleman sustained hearing defect following treatment with Gentamycin. Kindly evaluate and manage accordingly thanks”.
The form was signed under column for doctor’s signature but the name of the person that signed was not stated. Exhibit B1 is a titled staff referral from. The doctor that issued the form is Dr. Ndamusa. These two documents tendered by PW1 as evidence in support of his claim were not mentioned in the entirety of the judgment of the court below. The document Exhibit B and B1 did not originate from the 2nd and 3rd respondent that treated appellant with gentamycin
The appraisal of evidence or evaluation of same and ascription of probative value is the primary duty of the trial court. The reason is obvious, it is during trial that the trial court had the opportunity of watching the demeanour of witnesses and hearing them and enjoys the privilege of believing or disbelieving the witness.
Thus once an issue turns on credibility of the witnesses the opinion of the trial court must be respected.
See: Osolu v. Osulo (2003) 11 NWLR (pt.832) 608 SC.

However, where the trial court fails to examine and evaluate exhibits thoroughly, an appellate court is entitled to do so and make findings thereon.
See Gonzee Nigeria Limited v. NERDC (2005) All FWLR (Pt.274) 235 SC; Iwo LG v. Adigun (1992) 6 NWLR (Pt.133) 494; FSB International Bank Limited v. IMANO Nigeria limited (2000) All FWLR (pt.19) 392.
Iwuoha v. NIPOST Limited (2003) FWLR (Pt.160) 1535 SC.
The learned trial judge should have evaluated the effect of exhibits B and B1 admitted in evidence. The learned trial judge at page 296 held:
“I have watched the demesnor of all the witnesses in court and I have no reason to disbelieve the evidence of the two defendants’ witnesses whom are experts in their fields. I am not going to dwell on the technicalities of procedure to clog this case. I have seen and observed the plaintiff and I have no doubt in my mind that he is hard of hearing.”

From the aforesaid pronouncement, the trial court found that the appellant is hard of hearing from what he observed and saw in court. This finding is in line with the principle that it is the trial court that will observe the demeanor of the witness in court. The court still failed to comment on Exhibits B which contains a statement that the appellant sustained hearing defect following treatment with gentamycin. The appellant in his statement of claim at paragraph 17 of the statement of claim (see page 6 of the record of appeal) said:
“That after paying their agent’s bill, on 11.05.2001 about two months after he became deaf, defendant referred him to Lagoon Hospital in Lagos for further investigation of the injury inflicted on the plaintiff by their agents Abuja Clinics. Plaintiff shall rely on the letter of reference with which the defendant sent him to Laogoon Hospital in Lagos.”

In evidence the PW1 said:
“He later referred me to Lagoon Hospital Lagos. I have a reference letter. I can recognize a copy of the letter.
From the pleading and evidence of PW1, Exhibit B was tendered to establish the fact that the appellant was referred to the Lagoon Hospital for evaluation and management. Where a document is tendered in evidence and it is intended in proof of a specific point, the duty on the party who wants to relate an exhibit to an aspect of his case is to say so explicitly and not leave the court to investigate the contents of the document. This is because the admitted documents useful as they could be would not be of much assistance to the court in the absence of admissible oral evidence by persons who can explain their import.
See Alao vs. Akano (2005) All FWLR (Pt. 264) 799 at 812 – 813.
Documents are not objects that can be subjected to cross examination when tendered and admitted in evidence. The usefulness would not be of much assistance to the trial court in the absence of admissible oral evidence by a person who can explain their purport.
See Alao vs. Akan O. (2005) 11 NWLR (Pt. 935) 160 SC.

Though document speaks for itself the object for which the document was tendered must be linked to the point being made in oral evidence in support of the case. The settled law that evidence unchallenged and uncontradicted is deemed admitted and ought to be accepted by the court is not without an exception. The unchallenged evidence cannot be conclusive prove of a plaintiff’s case when the realm of law involved specifically sets out conditions to be met before the court can hold the plaintiffs case succeeds.
The learned counsel for the 1st respondent argued extensively on the admissibility of Exhibit B and B1 on the grounds that it amounts to hearsay evidence and that there was no foundation for admitting Exhibit B and B1 in proof of negligence against the 3rd respondent.
The effect of the argument of learned counsel for the 1st respondent is that Exhibit B and B1 should not have been admitted. The position of the law as set out in several decided cases by the appellate courts is that where an inadmissible evidence is admitted without objection at the trial, failure to object to its admissibility at the trial will not prevent its inadmissibility from being raised and determined on appeal as the appellate court has the inherent jurisdiction to exclude it or expunge it from the records notwithstanding that counsel at the trial court did not object to its admissibility.
See Agbi vs. Ogbeh (2006) 11 NWLR (Pt. 990) 65 SC;
Onochie vs. Odogwu (2006) 6 NWLR (Pt. 975) 65 SC;
Degac 1 of Dere vs. Dagac I of Ebwa (2006) 7 NWLR (Pt.979) 382 SC
The party who intends to object at the appeal stage must raise same with leave of court as applicable as a ground of appeal. Exhibit B and B1 is a legal evidence.
PW1 though not maker was given the document to present to Lagoon Hospital.
Where an evidence is not inadmissible perse or admissible subject to condition. Its admission as evidence without objection constitutes a waiver of the conditions to which its admissibility is subject.
See Igbodim vs. Obianke (1976) 9 -10 SC 197.
AIG Oyo State vs. Fairlakes Hotels (No.2) 1989 5 NWLR (pt. 121) SC 255.
In the instant appeal the 1st respondents counsel cannot in the 1st respondents brief raise the issue of admissibility of Exhibit B and B1.
Issue one raised from the ground of appeal questioned the failure of the trial court to rely on the two exhibits to enter judgment for the appellant. Once an exhibit is before the court it forms part of the evidence to be considered by the court. The appellant in evidence did not relate the contents of Exhibit B and B1 but he tendered same as evidence that he was referred to Lagoon Hospital Lagos for further evaluation. The contents of that referral letter cannot be discountenanced as relates to the fact that he was referred to a hospital and the purpose. I do agree that the trial judge should have evaluated Exhibit B and B1.
The plaintiffs’ claims is that the 1st defendant is vicariously liable to plaintiff for medical negligence of its employed agent Dr. Udom who negligently diagnosed and administered wrong medication which caused plaintiff to become permanently deaf.
The nature of the appellant claim enjoins him to establish medical negligence and vicarious liability. The referral letter with its contents will not suffice for the trial court to hold that the appellant had discharged the burden of proof in his claim of medical negligence. There must be oral evidence from which the trial court could have inferred the weight to be attached to exhibit B and B1. See A-G Oyo State vs. Fairlakes Hotels (No.2) (1989) 5 NWLR (Pt. 121) SC 255.
The learned counsel for the appellant relied on the Supreme Court decision in Nwabuoku vs. Otti (Supra). When he argued that the plaintiff is entitled to judgment because the trial judge failed to consider and evaluate vital evidence, that is Exhibit B and B1 that is uncontradicted. The pronouncement of the Supreme Court in Nwabuoku case was based on the uncontradicted oral evidence adduced before the trial court in support of claim.
In the instance appeal Exhibit B and B1 are documentary evidence, which are used to test the credibility of oral evidence. Therefore, where there is solely documentary evidence there ought to be admissible oral evidence for its evaluation.
See Alao vs. Akano (2005) 11 NWLR (pt 935) 160 SC.
Therefore Exhibit B and B1 cannot be conclusive proof in the absence of admissible oral testimony to evaluate same. Consequently I resolve issue one against the appellant.

Issue Two: Whether in the absence of the 3rd defendant to explain how the injury to the plaintiff happened, the plea of res ipsa loquitur which the trial judge refused to consider applies.
It is the contention of the learned counsel for the appellant that the 3rd respondent at the court below did not testify to explain and controvert the evidence of the plaintiff that caused his deafness by his medical negligence.
Learned counsel submitted that it is trite that the plea of res ipsa loquitur is a rule of evidence which shifts the burden of proof from the plaintiff to the defendant and where the defendant fails to give evidence in rebuttal to discharge the burden as in this case the plea applies and succeeds.
He cited Aliu Bello vs. A-G of Oyo State (1986) 5 NWLR (pt.45) 826 at 840; CBN vs. Mrs. Agness Igwillo (2007) 4-5 SC 154 at 194; Ojo vs. Gharoro (2006)10 NWLR (pt.978) 173.
The learned counsel stated that the DW2 testified as an expert and told the court that the appellant was already deaf when he saw him, thereby supporting Exhibit B and B1. He contends the witness did not explain that the injury sustained by the plaintiff could have happened in spite of due care and skill.
He urged the court to hold that in the absence of the 3rd respondent testifying during trial and in the absence of any reasonable explanation the pleas of res ipso loquitur applies.
The learned counsel for the 1st respondent submitted that the respondents successfully rebutted the presumption of negligence notwithstanding that the 3rd respondent did not testify as a witness. It is his contention that what is supposed to be the happening event is the administration of gentamycin on the appellant. He agrees that the 3rd respondent owed a duty of care to the appellant but that the question is whether that duty of care was breached as there is no evidence that the 3rd respondent made a mistake in prescribing gentamycin for the treatment of the appellant. He referred to the evidence of DW2 a medical consultant and ENT expert which was not contradicted and therefore there was no breach of duty of care by the 3rd respondent in the diagnosis and prescription of drugs for the treatment of the appellant.
It is his further contention that there is no evidence on record that gentamycin caused the appellants’ loss of hearing as many other conditions capable of producing similar results were already in existence before he was treated with gentamycin. Learned counsel argued that there is no statutory or evidential requirement that only the 3rd respondent should testify to rebut the presumption of negligence if any was made out as all the evidence the 3rd respondent would have given were made available through DW2. He submits the respondents successfully rebutted the presumption of negligence illustrating the specific doctrine of res ipsa loquitor.
The learned counsel for the 2nd and 3rd respondent contends that the 3rd respondent need not appear to testify in person since he had a counsel and he elected to adduce his evidence through an expert witness who treated him and also produced in evidence the records duly made by the 3rd respondent in relation to the facts in issue she contends that the testimony of the DW2 wherein he stated that the appellants deafness could have occurred from complications arising from his existing health conditions as well as from the side effect of the drug with which he was diligently treated remained uncontroverted.
It is the contention of learned counsel that the plea of res ipsa loquitar can only succeed in circumstances articulated in the case of Aliu Bello vs. A-G of Oyo State (1986) 5 NWLR 45 826 at 840 which are as follows:
(1) The injury is caused by factors under the management and control of the defendant or his agent
(2) In the ordinary course of events the injury should not have happened unless there was want of care.
It is his contention that in the instant situation there is uncontroverted evidence that the appellants’ deafness could have been caused by three distinct health conditions that he was suffering from at all material times namely.
Meningitis, Hypertension and Diabetes.
She contended that any of this illness could have caused deafness. He contends further that they lead evidence to show that the gentamycin could cause deafness as a side effect. It is her submission that the above circumstances deny the appellant of the plea of res ipsa loquitar.
The doctrine of res ipso loquitur literally means “the thing speaks for itself.
This Latin maxim is applicable to actions for injury caused by negligence where no proof of such negligence is required beyond the accident itself. The purport of the doctrine is that an event which in the ordinary course of things was more likely than not to be caused by negligence was by itself evidence of negligence depending on the absence of any explanation. Once the facts are known or where the defendant gave a satisfactory explanation the doctrine will no longer apply. It is not more than a rule of evidence wherein a plaintiff proves a case so as to call for a rebuttal from the defendant without having to prove any specific act or omission on part of the defendant all he need to prove is the result. If the result makes it more probable that the act was caused by the negligence of defendant, then the doctrine res ipsa loquitur will apply and the plaintiff will be entitle to succeed unless the defendant by evidence is able to rebut the possibility or probability.

The Supreme Court in Ojo v. Gharoro (2006) 10 NWLR (pt.987) SC 173 Per Oguntade JSC had this to say on when the doctrine will not apply.
“In relying on res ipsa loquitur, a plaintiff merely proves the resultant accident and injury and then asks the court to infer therefrom negligence on the part of the defendant. The doctrine will not apply where:
i. the facts proved are equally consistent with accident as with negligence;
ii. there is evidence of how the accident happened and the difficulty (as in this case) arise merely from an inability to apportion blame between two negligent drivers. If these two drives are servants of the some master the position may be different: Skinner v. L.B. & S.C. Rv (1850) 5 Exch.787.
If there is evidence of how the occurrence took place, then an appeal to res ipsa loquitur is misconceived and inappropriate. There again, the question of the defendant’s negligence must be determined on the available evidence.
In other words the doctrine of ‘res ipsa loquitur’ is not meant to supplement inconclusive evidence of negligence on the part of a plaintiff. Rather it is meant to apply where there is no other proof of negligence than the accident itself.”

The doctrine can only apply to negligence liability and will apply in the following circumstances :
(1) When the thing that inflicted the damage was under the sole management and control of the defendant or of someone for whom he is responsible or whom he has a right to control.
(2) The occurrence is such that it would not have happened without negligence.
(3) There must be no evidence as to why or how the occurrence took place. If there is then the plea is inappropriate.
One fundamental point to note is that the question of defendants’ negligence must be determined on the available evidence. The appellant in the instance case pleaded negligence and particulars but also pleaded res ipsa loquitur.
The law places a burden on the appellant to prove that the respondents were negligent in the act of prescribing and administering the drug gentamycin. The standard of proof must be on a balance of probability or preponderance of evidence. What then is the specific act of the respondents which appellant has established in evidence which resulted in the negligence? What then is negligence?
It has been described as a fluid principle which has to be applied to diverse conditions.
Generally, in the ordinary case which does not involve any special skill, negligence in law means omission or failure to do something which a reasonable man, under similar circumstances would do or that which a reasonable man would not do. If that failure results in injury then there is a cause of action. The rest on whether an act amounts to in professional negligence is that of standard of the ordinary skilled man exercising and professing to have that special skill. Ojo vs. Gharoro (Supra).

For a claim in negligence to succeed the appellant must prove that the respondents owed him a duty of care and was in breach of that duty.
It is not in dispute from the evidence adduced in the trial court and submissions of learned counsel that the respondents owed the appellant a duty of care. The area of contest is whether the respondent breached the duty of care.
The appellant in evidence told the court that he was given Gentamycin which made him deaf and that he observed his hearing problem started five days after he was admitted at the 2nd respondents’ hospital and was given drips, tablets and injection inclusive of Gentamycin as prescribed by Dr. Etinam Udom, the 3rd respondent Exhibit H2 is the medical notes of Dr. Etinam Udom on 26/02/01, the date the appellant was admitted. Therein the doctor noted he observed the appellant had difficulty in hearing except when he shouts and that the applicant had been treated in the first respondents’ clinic before going to Abuja clinic the 2nd respondent hospital. The DW1 a medical practitioner and ENT surgeon. Specialist ENT for 10 years and a staff of the 1st respondent testified stating that the appellant developed CSM complications including hearing problems and others in hospital. He knew the appellant and has treated him before in the 1st respondent clinic. In evidence he did not say the appellant had hearing problem but he stated that when the plaintiff discovered the problem with his ear his wife whilst still in Abuja clinic reported to him. He went further to state that he cannot proof what caused the hearing loss but that CSM can cause hearing loss. DW2 an ENT surgeon a consultant at the 2nd respondent clinic stated he used appellants medical file to treat the appellant when he was on admission and he found he had meningitis and profound sensory nasal hearing loss.
He further stated that he does not know the original cause of the patients hearing loss before hospitalization. He acknowledged that the drugs given to appellant were appropriate drugs including gentamycin but that it could cause deafness and that he did review the drugs. It is an indisputable fact from the evidence of the witnesses that the appellant suffered injury that is loss of hearing.
The injury involved is fundamental as it certainly affects the appellant life style.
The appellant before the 26/02/01 was not deaf but at the time of his discharge he cannot hear. This is a very pathetic story. Although Appellant went to Abuja clinic very ill for purpose of treatment and he was attended to by the 3rd respondent a medical Doctor. There was a duty of care on the 2nd and 3rd respondent. What then is the nature of care involved and was it breached. The Onus is on the appellant to show lack of duty of care. The appellant must first adduce evidence to show reasonable want of care. Where the thing that caused the injury is under the management of the defendant or his servants and the injury is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of just explanation by the defendants that the injury arose from want of care.
The courts have long recognized that there is no negligence if a doctor exercises the ordinary skill of an ordinary competent man professing to have that special skill.
The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill is the direction to the jury given by Mcnair J in Bolam v. Friern Hospital Management Committee (1957) 2 All England Reports 118 at page 122.
“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the some thought. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.”
The above standard is the test for which a doctors’ function of diagnosis and treatment is considered. The appellant case is that he went to the 2nd respondent hospital for treatment and came out deaf. The DW2 during cross-examination used the phrase deaf as to the appellants condition therefore the injury sustained by the appellant is not in dispute.
The appellant did not call an expert witness to show as a skilled witness that the prescription of gentamycin and its administration on him resulted in his deafness. The evidence of such an expert witness was paramount in the circumstance. The DW2 in evidence stated that one of the side effects of gentamycin is deafness or loss of hearing. DW1 also said it causes hearing problem. Where the questions of assessment of relative risks and benefits of adopting a particular medical practice is in issue. The standard of reasonable view will presuppose that the relative risks and benefits have been weighed by the experts in forming their opinion. The evidence of the DW2 who is an ear, nose and throat specialist was acceptable to the trial court. It is the trial judge that had the opportunity to observe their demeanour and evidence during trial that can effectively assess whether their opinion on the treatment is reasonable. The judge is entitled to find the professional opinion reasonable or responsible, it is only when the trial judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark for reference by which the 3rd respondents conduct falls to be assessed. I appreciate the fact that the appellant may not have had easy access to call a specialist in Ear, to testify on the effect of gentamycin or other drugs prescribed and administered on him, but the nature of his claim on medical negligence placed a burden on him to call an expert opinion to give evidence of the probable effect of the treatment given to him.
The need is more paramount in the light of the evidence adduced that appellant had been hypertensive and diabetic before the treatment with gentamycin and that any of such illness can cause loss of hearing. This failure to call an expert opinion is fatal to the appellants’ case. The assessment of whether the 3rd respondent acted in accordance with responsible body of medical men skilled in that particular act can only be effectively weighed and determined by the evidence adduced by such reasonable men in the medical field. Notwithstanding the 3rd respondent has not been described as a specialist in Ear, Nose and throat, his decision to treat with the drugs administered on the appellant would have been assessed on the basis of whether he acted in accordance with the practice of competent respected professional opinion. The evidence of the DW1 is in support of the treatment of the appellant with the drug gentamycin likewise the DW2.
DW2 was emphatic that gentamycin and other drugs given to appellant are appropriate drugs which have good effects but could possibly cause deafness. They went further to state that the drug has side effect and one weighs the advantages against the disadvantage. This evidence is best described as medical opinion of DW2.
The 3rd respondent that prescribed and administered the drug should be the witness to explain to the court on whether he did consider and weigh the attendant risk and benefit before drug. Nevertheless the absence of an expert witness in support of the appellants’ case is a great omission. It would seem unrealistic in any medical negligence case to confine the expert medical evidence to an explanation of primary medical factors involved and to deny the court the benefit of evidence of medical opinion and practice on particular issue as in this case whether the treatment with gentamycin for meningitis alone can cause his deafness by an independent expert. From the totality of evidence adduced I hold that the appellant failed to discharged the onus on him on a balance of probability by establishing that the 2nd and 3rd respondent breached their duly of care to him by the nature of treatment administered on him in particular the drug gentamycin. The appellant failed to prove that the 2nd and 3rd respondent failed to do what a reasonable medical man skilled in that particular art will do.
There is no reasonable evidence adduced to show the 2nd and 3rd respondents did not act in accordance with practice accepted for the treatment of meningitis diagnosed. The sole testimony of the appellant certainly could not per se amount to proof of the particulars of negligence pleaded against the respondent.
The plaintiff also relied on res ipsa loquitur. This plea like I earlier stated in this judgment applies under three conditions where the thing is under the control of the defendant or of some other person for whom he is responsible. The appellant case is that the gentamycin caused his injury, whilst in the 2nd respondent hospital and that it was administered by the 3rd respondent. The second condition is that the occurrence is such that is would not have happened without negligence. I have already held that the appellant failed to adduce evidence sufficient to establish lack of care vis-a-vis negligence. The third condition is where there is no evidence as to why or how the occurrence took place. Once there is evidence of how the injury was caused then the plea cannot apply. The appellants’ evidence is that the drug administered on him caused his deafness. The DW1 and DW2 maintained that gentamycin can cause deafness but because the appellant has other illness which can equally lead to loss of hearing they cannot tell what exactly caused the appellant to be deaf. The DW1 also testified that the same drug is used for treatment of Meningitis and that the side effect of the drug is loss of hearing. The drug the defence has shown is good for the treatment of certain bacterial infection. It is not a drug banned in the medical world. Such drugs attendant with side effects should be communicated to the patient and the risk weighed.
See Sideway v. Board of Governors of the Bethlem Royal Hospital (1985) 1 All ER 643.
Unfortunately in this case there is no direct credible evidence on which the court can infer what caused the loss of hearing. The plea of res ipsa loguitar would have been available to the appellant if he adduced evidence to show that the injury would not have happened without likelihood of lack of care by the respondent.
It is after the appellant has established evidence from which negligence is inferred that the burden shifts to the respondents to rebut any presumption of negligence. The law is unfair on a patient who walked into hospital for treatment and gets injured. The unfairness is based on the burden placed on the patient to prove negligence where all indication is that there was fault somewhere along the line of care. Reliance on the doctrine of res ipsa loquitur amounts to an acknowledgement by the plaintiff that he has no direct evidence of the negligence complained of against the defendant but that the surrounding circumstances establish such negligence. He still has to establish the circumstances.
See Management Ent Ltd. vs. Otusanya (Pt.55) 179 SC; Ojo v. Gharoro (supra).
The respondents’ witnesses in the instance case testified that the drug has a side effect but is appropriate for treatment. This evidence remained unchallenged.
The second condition for the plea to apply does not exist.
I therefore hold that the maxim cannot apply. I resolve issue two against the appellant.

I will now consider issue 3 on whether the judgment of the learned trial judge is perverse which resulted in miscarriage of justice.
The submission of the learned counsel for the appellant is that the judgment of the trial court is perverse as it is based on wrong conclusions from indisputable primary facts that were wrongly stated and that the trial court rebuilt the case for the defendant and refused to consider plaintiffs vital oral evidence. It is his submission that the trial judge despite his findings at page 297 of the record where he found that the possibility of drug causing the plaintiffs deafness cannot be eliminated she dismissed the plaintiffs claim.
He contends that there is an exception to the general rule that plaintiff must succeed on the strength of his own case and not the weakness of the defence that is where the defendants’ case may support plaintiffs case.
He referred to Akinola vs. Oluwo (1962) 1 SC NLR 352 at 354.
It is his submission that liability for medical negligence falls on all the respondents. I poise the question when is a judgment perverse. A judgment of a court is said to be perverse when it runs counter to the evidence or where it has been shown that the trial court took into account matters which it ought not to have taken into account or when it has occasioned a miscarriage of justice.
See Agbomej Bakare (1998) 9 NWLR (Pt. 564) 1 SC
Adimora vs. Ajufo (1988) 3 NWLR (Pt.80).

A miscarriage of justice occurs where there are substantial errors in adjudication which effect is that the party relying on such errors may likely have a judgment in his favour.
See Amadi vs. NNPC (2000) 6 SC (Pt. 1) 66.
The appellant must show that the trial judge took into account matters which he ought not to or that he refused to rely on proved facts and or that the trial court distorted the facts or evidence in the case. I agree with the submission of the learned counsel for the first respondent that the learned trial judge did not take into account matters which she ought not to have relied on. The facts relied on by the learned trial judge was not extraneous it was based on the evidence in chief and cross examination of the appellant on his age.
I therefore have no reason to state that the learned trial judges relied on extraneous matters and then hold the judgment perverse. It is important to emphasize that the duty of the appeal court is to consider whether the final decision of the trial judge is correct in line with the evidence adduced and the law. Where the trial judge made a remark which could not have affected the final decision and did not, such remark will be insufficient to overturn a decision that is correct.
I find no reason to hold that the judgment is perverse. The appellant must show that there was error of law in the judgment of the trial court and that it occasioned a miscarriage of justice, which I must say he failed to establish.
See Obi Odu vs. Duke (2005) 10 NWLR (Pt. 932) 105 at Pg 136.
The learned counsel for the 2nd and 3rd respondent rightly submitted that the appellant did not show how the supposed ‘erroneous’ findings he listed in paragraph 1.02(e) of his brief substantially affected the decision of the court. I therefore resolve issue 3 against the appellant.
Under issue four whether the plaintiff has suffered any injury or damage whilst in the hands of and under the management of the defendants’ in particular 2nd and 3rd defendants and therefore entitled to remedy as he claimed. The Learned counsel for the appellant submitted that it is wrong for the learned trial judge to allow the plaintiff’s injury to remain without a remedy when she had held there is possibility of the drug having caused the plaintiff’s deafness. That the trial court also omitted to assess and provide any amount in damages in her judgment considering the decision of the Supreme Court in Aliu Bello vs. AG of Oyo State (Supra). He contends that the court should provide a remedy when a plaintiff has been wronged. He contends that it is superficial to insist that plaintiff should have called an expert to prove what the defendants and the court do not doubt.
It is the submission of the learned counsel for the 1st respondent that the appellant failed to prove that he suffered injury as a result of the use of gentamycin to treat him by the 3rd respondents. It is his further submission that the appellant failed to particularize and prove his claim in damages.
Learned counsel for the 2nd and 3rd respondent argued that the appellant has not made out any legal wrong to be entitled to the grant of remedy under our judicial system. She also submitted that the appellant has not established a competent claim for it in this action because he did not plead nor prove the particulars of the special damage.
The appellant case on what caused his injury appears rooted in Exhibit B and B1 for emphasis I will repeat. This Exhibit B1 the referral letter contains the following statement
“This gentleman sustained hearing defect following treatment with gentamycin”
Clearly this statement refers to hearing defect not that the appellant is deaf.
Even if one relies on the document the appellant still would not have discharged the burden of prove on him as per his claim. Appellant claim is on vicarious liability of the 1st respondent for the medical negligence of its agent, the Abuja clinic and 3rd respondent Dr. Etinam Udom, for wrong medication which caused him to become permanently deaf.
The appellant failed to lead evidence to show 1st respondent is vicariously liable. The Abuja clinic was one of the retainer hospital provided by the 1st respondent for their staff. Appellant went to the clinic for treatment. The fact that 1st respondent paid for the treatment cannot be described as lack of care for the appellant rather compliance to contractual obligation on payment for treating a staff. There is no evidence 1st respondent instructed the 3rd respondent to cause appellant injury. The uncontradicted evidence on the standard of the hospital is that it is ranked high in the league of hospitals. In medical negligence claim the onus is on the plaintiff to establish the negligence. Appellant was diagnosed with meningitis and was given gentamycin. The side effect is not pleasant but it amounts to a doctor balancing the risk. It is for the appellant to establish want of care, that a reasonable person in that profession would not have given him that drug. When he adduces evidence uncontradicted to show that the 3rd respondents’ prescription of drugs including gentamycin and the administration of the drug by the staff of the hospital falls short of the standard of a reasonably skillful medical man then he would have discharged the standard.
This is the crux of the claim on medical negligence. The appellant case must be on want of care by the respondents. His claim is not on lack of information by the 3rd respondent on the side effect of gentamycin. What the appellant need was to call an expert skilled medical witness to testify on whether the prescription of gentamycin in the circumstance of the health condition of the appellant was right and whether it did cause appellant to become deaf. Whether a reasonable medical mind will say there was a mistake. Failure of the appellant to call an expert witness affected the claim. Therefore I have no reason to interfere with the decision of the court below. There must be evidence to show that the appellant became deaf due to lack of diligence in prescription, administration and consumption of the drugs in particular gentamycin. In most cases drugs manufactures will clearly state its side effects in the packets bought from the pharmacy but when administered in hospital the patient hardly has the opportunity to know of the side effects unless told. It is only a reasonable/responsible medical expert in that field of medicine that can explain medically in evidence the benefit and risk of the drug for the judge to assess and weigh between two doctors evidence. The presumption is that a judge is not a medical doctor he can only assess evidence presented before her. On the appellant claims for special damages, I agree with the submission of the learned counsel for the 1st respondent that claims for special damages must be particularized and proved with strict particulars.
See C.A.P Plc vs. Vital Investment Ltd. (2006) 6 NWLR (Pt.976) CA 220.

Special damages are quantifiable pecuniary losses up to the time of trial at which time the exact amount to claim is known. On the other hand general damages cover losses which are not capable of exact quantification. They do not need to be specifically pleaded although some evidence of the damage is required.
The appellant did not particularize his claim under special damages with specific heads. It is insufficient to merely plead as appellant did that on the face of daily crashing of the value of the naira he requires N500 million for maintenance of self and family and cost of seeking medical solution.
The claim under special damages must be specific and direct. The appellant will be paid damages if the wrong against him has been established. In the event that he did not discharge the burden of proof on him the court cannot grant a remedy by ordering damages when there is no wrong established. Issue four is resolved against the appellant.
I wish to just observe that claims founded on medical negligence have been known to be difficult to establish and expensive as well. The evidence to be adduced by the injured usually is in the domain of the hospital and doctors. Where records in the hospital are tendered in court it does not have much impact. The injured will inevitably rely on expert testimony to tell the court whether a reasonable person in the position of the doctor would have made the same diagnosis, treatment or procedure adopted.
Nevertheless, the circumstances of the appellant required some compassion and assistance from all the parties concerned.
In the final analysis, that all the issues formulated by the appellant have been resolved against him, I hold that this appeal cannot be allowed. The appeal lacks merit and is hereby dismissed. I make no order as to cost.

CROSS APPEAL
This is a cross appeal against the decision of the Federal High Court Abuja delivered on 26/03/09. The notice of cross appeal with leave of court was filed on the 17/11/08 by the 1st respondent in the main appeal now the cross appellant. The appellant respondent in his claim at the Federal High Court Abuja claimed he suffered loss of hearing on account of the medical negligence of the 3rd respondent in prescribing and administering on him a drug called gentamycin, he also claimed that the cross appellant was vicariously liable for the medical negligence of its employed agent, the 2nd respondent (Abuja clinic) and 3rd respondent D. Etinam Udom, who negligently administered wrong medication which caused him to became permanently deaf. The cross-appellant denied liability stating that the 2nd respondent was an independent contractor whose standard and competence it diligently ascertained before approving it as one of its standby retainer hospitals.
The 2nd and 3rd respondents denied negligence contending appellant/cross respondent had other conditions like meningitis, high blood pressure and diabetes each of which has the capacity to cause sensory nasal hearing loss.
The learned trial judge found that the 2nd respondent was an agent of the cross appellant and dismissed the appellant/cross respondents’ claim. The cross appellant dissatisfied with the decision that he is an agent filed a notice of cross appeal containing two grounds of appeal. Two issues were distilled by the cross appellant which reads thus:
“1. Whether the Appellant/Cross-Respondent’s cause of action was statute barred. At the Federal High Court Abuja (the court below)
2. Whether the 2nd Defendant Respondent was an Independent Contractor solely liable for the injury (if any) suffered by the Appellant/Cross – Respondent in the cause of his receiving medical
Treatment from the 3rd Defendant Respondent on behalf of the said 2nd Defendant/Respondent.”

Issue one on whether this action was statute barred at the time it was filed at the Federal High Court Abuja. It is the contention of the learned counsel for the cross appellant that time started to run in the action on the 3rd of March, 2001 when the appellant /cross respondent claimed that he became aware of his hearing loss after his admission into the 2nd respondent clinic for treatment. Learned counsel submits that the action became statute barred on the 3rd of March 2004 contrary to the provisions of section 8(1) and (2) of the Limitation Act Laws of the Federation of Nigeria (Abuja) 1990. He contends appellant /cross-appellant had 3years within which to institute the action from date cause of action occurred but he instituted the action 3years and 4 months after. He cited several authorities in support.
The learned counsel for the appellant/cross respondent submits that the Limitation Act is not applicable to the cross respondents’ action because the cross appellant is a state authority and is a party. It is his contention that a plea of statute bar is not a challenge to jurisdiction of court but only a limitation to action of the plaintiff and that unlike any issue of jurisdiction which can be raised at any time.
The issue of statute bar can only be raised at the earliest opportunity as a special defence pleaded in the statement of defence. It is his further submission that the applicable law in the Federal Capital Territory is the limitation Act 1966.
He referred to section 4 and section 36 of the Limitation Act. Learned counsel submitted that under section 36 of the Limitation Act cross-respondent came as a person under a disability. It is his submission that the cross respondent was under a disability which by section 36 (1) (a) 2(a) 1 gives him limitation period of six years to file a claim based on injury arising from negligence.
It is his further contention that the appellant did not plead statute barred as a special defence in his statement of defence. This raises the question whether a party who intends to rely on limitation law must plead same before the issue can be considered notwithstanding that as in this case this court granted leave to the cross appellant to raise the fresh point on limitation as a fresh issue.
A plea by a defendant that an action is statute barred is a plea which raises the issue of jurisdiction which determinant is the writ of summons and the statement of claim. I am fortified by the decision of the Supreme Court in NASIE vs. Civil Service Commission (2010) 1 – 2 SC pg 65 particular at pg 82 where Mukhtar JSC said:
“There is no doubt this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of Statute of Limitation, at an Appellate Court, vide leave to do so even if he did not do so at the Court of first instance, because such issue borders on the fundamental issue of jurisdiction. The Appellant in this case realized its mistake in not thrashing out the issue and so raised it in the Court of Appeal after leave was obtained.”
This court granted leave to the cross appellant to raise the issue and it was raised. Therefore it was properly raised. The rule of the court cannot override the statutory provision on limitation law. On whether section 4 of the limitation Act applies, I do agree with learned counsel for the cross appellant that the cross respondent failed to show there is a fixed period in another enactment. Section 36 of the Limitation Act stipulates as follows:
“Section 36 (1) (a) if on the date when any right of action accrued for which a period of limitation is fixed by this law, the person to whom it accrued was under a disability, the action may subject to the subsequent provisions of this section, be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died….
(2)(a) in the case of actions for damages for negligence….where the damages claimed by the plaintiff for negligence …..consist of or include damages in respect of personal injuries to any person.
(i) Subsection(1) of this section shall have effect as if for the words “six years” there were substituted the words “three years.”
Section 36(2) stipulates the limitation time for claims relating to damages for negligence in respect of personal injuries to a person. The cross respondents claim is for damages for injury arising from medical negligence. The injury relates to loss of hearing, this is covered under section 36(2) and like the learned counsel for the cross respondent rightly submitted the limitation period is six years and the cross respondents action was filed within the period of six years if one accepts the calculation of the learned counsel for the cross appellant as regards when the cause of action arose that is on 1st of March, 2001. The suit was instituted on the 30th of June, 2004. In respect of the argument on disability, a man that cannot hear falls within the description of disability.
The applicable limitation period is 6years in the instance situation. The 3years as contended by the cross appellant is not applicable to the present situation. The action is not statute barred.
The Limitation Act prescribed a 6years period in cases of injury sustained as a result of negligence. The action was commenced properly before the expiration of the prescribed period. Consequently issue one is resolved against the cross appellant.

Issue 2 formulated by cross appellant reads thus:
“Whether the cross appellant is not vicariously liable for the negligence if any of the 3rd respondent on behalf of the 2nd respondent an independent contractor.”
Issue 2 is formulated from ground 2 of the notice of cross appeal. I deem it necessary at this stage to reproduce ground 2 and its particulars for purposes of elucidation as regards whether the issue arose from ground 2.

GROUND 2
“The learned trial judge erred in law when he held that the 2nd Respondent is the agent of the 1st Respondent/Cross-appellant.”
PARTICULARS OF ERRORS
a. The 2nd Respondent is not a part of the 1st Respondent’s organization.
b. The 2nd Respondent was not under the control and management of the 1st Respondent.
Looking at the above reproduced ground two and its particulars I cannot appreciate from which ground of appeal the learned counsel distilled the point on vicarious liability for negligence from and the term independent contractor. All I can say is that the question poised under issue 2 did not arise from ground 2 of the notice of cross- appeal. The learned trial judge in her judgment did not address the issue of vicarious liability nor independent contractor. The ground of appeal explicitly stated that the trial judge erred when he held that the 2nd respondent is not an agent to the 1st respondent/cross appellant. The cross appellant is constrained to distill Issue two from this ground as formed but he wrongly imported into ground two the question of vicarious liability and independent contractor. Issues for determination are supposed to be distilled from the grounds of appeal filed by an appellant and not raised capriciously. It is settled law that arguments are canvassed on the basis of issues formulated and not on the ground of appeal.
See Aja vs. Okoro (1991) 7 NWLR (Pt.203) 260 SC.
Koya vs. UBA Ltd. (1991 1 NWLR (Pt.481) 251 at 253 SC
Amadi vs. NNPC (2000) 6 SC (Pt.1) 66.

The cross appellant from the complaint in his ground 2 on the cross appeal did not distill issue 2 therefrom. On what to do in such circumstance the Supreme Court in the case of Baliol Nig. Ltd. vs. NAVCON Nig Ltd (2010) 5-7 SC (pt.11) 1 Per Ogbuagu JSC held:
“It is now firmly settled in a plethora of decided authorities by this court that any issue or issues which is or are not formulated from a Ground of Appeal, is incompetent and must be ignored or discountenanced and struck out. See the cases of Management Enterprises v. Olusanya (1987) 2 NWLR (Pt.55) 179; (1987) 4 SCNJ 110 and Alli & Anor. v. Chief Alesinloye & 8 Ors. (2000) 4 S. C (pt.1) 111; (2000) 6 NWLR (Pt.660) 177 at 212; (2000) 4 SCNJ 265. In other words, the Court lacks the power to deal with an issue or issues not formulated or distilled from any Ground of Appeal. See the cases of Kraus Thompson Organization Ltd. v. University of Calabar (2004) 4 S. C. (Pt. 1) 65; (2004) 4 SCNJ 101 at 133 and Mojekwu v. Mrs. Iwuchukwu (2004) 4 S.C (pt.11) 1; (2004) 4 SCNJ 180.”

Relying on the above pronouncement I hold that issue 2 is incompetent as it was not distilled from ground 2. Issue two is struck out. Consequently ground 2 will also go. In the event that no competent issue has been distilled from ground 2 it is deemed abandoned and struck out. In the light of the forgoing I hold that the cross-appeal is devoid of merit and is dismissed. I make no order as to cost.

PAUL ADAMU GALINJE, J.C.A.: I have read in draft the judgment just delivered by my learned brother, Nwodo JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
The evidence of administration of gentamycin by the 3rd Respondent on the Appellant is not enough. The Appellant must proceed to prove that wrong dosage of the drug was administered, and that it was the result of the wrong dosage that caused the deafness. Once a medical officer applies drug to a patient in accordance with his professional knowledge and skill, the resultant effect of such application of drugs cannot be attributed to negligence on the part of the medical officer.
Negligence has not been proved in this appeal. I therefore join my learned brother in holding that the appeal is without merit and it is dismissed by me.
I also agree that the cross appeal is without merit and it is dismissed by me.
I make no order as to cost.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord, REGINA OBIAGELI NWODO, JCA just delivered and I agree entirely with the reasons given therein and the conclusions reached.
I am also of the view that there is no merit in both the appeal and cross appeal and they are dismissed by me.

Appearances

G. N. A. Enebeli with Erasinus Ogeleka for the appellant/cross respondent For Appellant

AND

Prof. J. O Febunmi with Seus Olokegun for the 1st respondent/cross appellant.
Miss Maureen Onyiuke for the 2nd and 3rd respondents. For Respondent