UNIVERSITY OF ILORIN TEACHING HOSPITAL V. DR. DELE ABEGUNDE (2013)

UNIVERSITY OF ILORIN TEACHING HOSPITAL V. DR. DELE ABEGUNDE

(2013)LCN/6452(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 6th day of August, 2013

CA/IL/63/2011

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

UNIVERSITY OF ILORIN TEACHING HOSPITAL – Appellant(s)

AND

DR. DELE ABEGUNDE (Suing for himself and on Behalf of the family of late Chief Ernest Omotade Abegunde – Respondent(s)

RATIO

THE ESSENCE OF PLEADINGS

The essence of pleadings in adjudication cannot be overemphasized. It compels feuding parties to define, precisely, the issues which are being contested in order to avoid any element of surprise and shorten proceedings between them, see Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307. As consequence of its importance, parties and the courts are bound by the pleadings of the parties, none can go outside them, see Abubakar v. Joseph (supra); Baliol (Nig.) Ltd. v. Navcon (Nig.) Ltd. (2010) 16 NWLR (Pt. 1220) 619; Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534; Oruwari v. Osler (2013) 5 NWLR (pt. 1348) 535. Any evidence which is not based on pleadings or at variance with them goes to no issue and liable to discountenance, see Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; UBN Plc v. Ajabule (2011) 18 NWLR (Pt.1278) 152. Perhaps, it is the pervading and all-important nature of pleadings in adversarial system of adjudication that informed the appellant’s complaint on this issue. PER OGBUINYA, J.C.A.

THE ELEMENTS OF PROVING NEGLIGENCE

By way of prefatory remarks, aimed at appreciating the purport and attributes of negligence, negligence generally, in law, connotes an omission or failure to do something which a reasonable man, under same circumstance, would do or doing of something which a reasonable and prudent man would not do, see George Abi v. CBN (supra); Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; Abubakar v. Joseph (supra); Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt.1172) 67. Negligence is a question of fact, not law, so that each case has to be decided/viewed from its peculiar facts, see SBN v. Motor Parts Installation Ltd. (supra); African Petroleum v. Soyemi (supra); F.A.A.N v. W.E.S (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249) 219. In the case of Malister (or Donoghue) (Pauper) v. Stevenson (1932) AC 562/(2002) 12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords invented three ingredients of negligence, which a plaintiff must establish, thus: that the defendant owed him a duty of care that there was a breach of the duty and that the breach caused him injury or damage. These ingredients have since been accepted and assimilated in the Nigerian legal system, see FBN Plc v. Associated Motors Co. Ltd. (supra); Abubakar v. Joseph (supra); Agbonmagbe Bank Ltd. v. CFAO Ltd. (1967) NWLR 173. It is settled that a hospital authority, like the appellant, is vicariously liable for the negligent acts or omissions of the whole of its staff, see Igbokwe v. U.C.H.B.M. (1961) WNLR 173. PER OGBUINYA, J.C.A.

WHETHER OR NOT WHERE ORAL EVIDENCE OF ADVERSE PARTIES ARE IN CONFLICT, DOCUMENTARY EVIDENCE SHOULD BE USED TO DETERMINE THEIR VERACITY

To buttress their respective stands, both parties proffered parole testimonies which are irreconcilable. In this wise, I will employ a hallowed principle of law that where oral evidence of adverse parties are in conflict, documentary evidence should be used as a barometer to determine their veracity, see Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Mil. Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt.1293) 291; Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512. Interestingly, the law donates concurrent jurisdiction to this court and the lower court vis-a-vis evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Our Line Ltd. v. SCC (Nig.) Ltd. (2009) 17 NWLR (Pt. 1170) 382/(2009) 9 SCM 173; Fajunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Eyiboh v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 94. I will take shelter under this co-extensive power in assessing the deluge of documentary evidence in the appeal. PER OGBUINYA, J.C.A.

WHETHER OR NOT WHERE A PARTY’S PRINCIPAL CLAIM FAILS, OTHER ACCESSORY CLAIMS ATTACHED TO IT WILL FAIL TOO

It is trite that where a party’s principal claim fails, the accessory claims that are appendages to it will fail too. This cardinal principle of law was, clearly, espoused by the Supreme Court in the cases of Fagunwa v. Adibi (supra) and Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) 312. The principle traces its paternity to the Latin maxim: Accessorium seguitur principale – an accessory thing goes with the principal to which it is incidental to, see Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 564 – 565. Unarguably, this settled position of the law sets a seal on the fortune of the respondent’s claims for damages. PER OGBUINYA, J.C.A.

DEFINITION OF SPECIAL DAMAGES

Special or particular damages are those damages which are the actual, but not necessary, result of the injury complained of, but follow it as a natural and proximate consequence in a particular case, that is, by reason of special circumstances or conditions, see Ahmed v. CBN (supra)/(2013) 2 NWLR (Pt. 1339) 524; UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 152. Special damages must be specially pleaded with particulars and strictly proved. By a strict proof, the law means that a party claiming special damages should establish his entitlement to them by credible evidence of such a nature/character that would suggest he is indeed entitled to them, see Oshinjinrin v. Elias (1969) NSCC, Vol. 6, 95/(1970) 1 All NLR 153; Cameroon Air Lines v. Otutuizu (supra); Neka B.B.B. Mfg. Co. Ltd. v. ACB Ltd. (2004) 2 NWLR (Pt. 858) 521; SPDC (Nig.) Ltd. v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439; Gonzee (Nig.) Ltd. v. NERDC (supra); NNPC v. Klifco (Nig.) Ltd. (2011) 10 NWLR (Pt. 1255) 209; Ahmed v. CBN (supra); Ajagbe v. Idowu (2011) 17 NWLR (Pt. 1276) 422; Akinkugbe v. E.H. (Nig.) Ltd. (2008) 12 NWLR (Pt. 1098) 375. Admission by an opponent party to special damages does not relieve a claimant from strict proof, see SPDC (Nig.) Ltd. v. Tiebo VII (supra); Akinkugbe v. E.H. (Nig.) Ltd. (supra); NNPC v. Klifco (Nig.) Ltd. (supra). PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): The Federal High court, Ilorin Division, coram A.O. Faji, J., in suit No. FHC/IL/CS/2008 handed down a decision, on 22/07/2011, wherein it granted the respondent’s claims against the appellant.

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

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

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

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

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

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

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

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

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

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

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

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

I have juxtaposed the appellant’s issues with those of the respondents. In my view, the two sets of issues are symmetrical, one a mirror image of the other, in the sense that the respondent’s issues can be, conveniently, subsumed under the appellant’s. On this score, I will settle the appeal on the footing of the appellant’s issues. After all, the appellant is the one peeved by the decision of the lower court.

Arguments on the issues:

Issue one.

Learned counsel submitted that the errors in the filing system, failure to keep proper medical and other records when the deceased was in the appellant’s hospital, which occupied pre-eminent position in the decision of the lower court, were not pleaded as particulars or acts of negligence on the part of the appellant. He posited that they were raised in the additional statement on oath of PW2, not in the respondent’s statement of claim wherein particulars of negligence were pleaded. He described the evidence as being at variance with the pleadings, irrelevant and ought to be discountenance. He placed reliance on the case of Anya v. Imo Concord Hotels Ltd. (2003) FWLR. (Pt. 138) 3106 to support his submission.

He took the view that the lower court made several findings of fact which bordered on the keeping of records by the appellant; adding that those findings formed one of the strong points upon which the negligence of the appellant was based. He quoted, extensively, those findings and insisted that the lower court formulated the issue and based its judgment upon it contrary to the pleadings. In support of his view, he cited the cases of West African Breweries Ltd. v. Savannah Ventures Ltd. (2002) 10 NWLR (Pt. 775) 401 and George v. Dominion Flour Mile Ltd. (1963) 1 All NLR 71. He postulated that the evidence of PW2, contained in paragraphs 6 and 9 of his additional statement on oath, were not supported by the pleadings. He maintained that when the lower court used the facts therein to evaluate the evidence adduced by the parties, it was outside the case of the parties before it.

For the respondent, learned counsel argued, per contra, that the issue of proper keeping of medical records of the deceased could not have been specifically pleaded in the particulars of negligence because it was evident from the deceased’s case folder and in the nature of evidence. She relied on the cases of Kolawole v. Adisa Ilori (2010) All FWLR (Pt.514) 35; Onyeakagbu v. African Dev. Insurance Co. Ltd. (2005) All FWLR (Pt. 289) 1379 to buttress her argument. In the alternative, learned counsel posited that the issue was pleaded in paragraph 10 of respondent’s amended reply to the appellant’s statement of defence. She added that the respondent gave evidence of the issue in proof of the said distillable negligent conducts of the appellant. She enumerated the documents that formed the pleadings, in the lower court, with their respective places in the record. She persisted that the lower court did not exceed its bound in the analysis of the case before it. She described the cases cited by the appellant as inapposite.

Learned counsel further argued that the lower court did proper evaluation of the evidence and this court ought not to embark on a fresh appraisal of same. She relied on the case of Mallam Nalado v. Alhaji Mohammed Ali (2006) All FWLR (Pt. 293) 220. She reasoned that the evaluation was grounded on judicial authorities and other secondary sources of law like books, for instance, Good Medical Practice, Professionalism, Ethics and Law, Cambridge University press, 2010, pages 87 and 98. She quoted the portion cited by the lower court and maintained that it never exceeded its bound. She noted that the DW1, during cross-examination, admitted the issue-improper keeping of medical records.

On point of law, learned counsel for the appellant submitted that paragraph 10 of the respondent’s amended reply to the statement of defence was a blanket pleading which did not give improper keeping of records as one of the particulars of negligence. He maintained that the law enjoined the respondent to give particulars of negligence. He cited the cases of Zaccheus Abiodun Koya v. UBA Ltd. (1997) 1 NWLR. (Pt.481) 251 and Machine Umudje v. SPDC (Nig.) Ltd. (1975) 9 – 11 SC 155.

Issue two

Learned counsel contended that the dispute involved medical negligence which calls for an application of professional skill and expertise which requires standard of which an average reasonable professional would do in such circumstances. He persisted that the average reasonable professional will not fall below that standard reached by the appellant so that it is not liable. He relied on the case of George Abi v. CBN (2012) 3 NWLR (Pt. 1286) 1 to support his contention.

He further contended that the respondent tried to prove negligence through the evidence of PW2 who was not an expert in the field of surgery in which the deceased was treated by the appellant. He posited that even if the PW2 were an expert, his evidence should have been treated with great caution in dealing with the issue of negligence. He maintained that the respondent should have called experts to prove his case. He postulated that the evidence of DW1 did not relieve the respondent from the burden of proving medical negligence, because he was to succeed on the strength of his case and not on the weakness of the defence. He noted that the lower court did not evaluate the evidence of DW1. He reiterated the point that the improper keeping of medical records was never made particulars of negligence and so unpleaded and not an issue before the lower court. He added that the same issue was used in rejecting all the evidence given by DW1. Learned counsel reasoned that the lower court reached its conclusion without proper evaluation of the appellants’ evidence before it. He relied on the cases of Daniel Basil v. Chief Lasisi Fajebe (2001) 11 NWLR (Pt. 725) 582 and Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416 to support his contention.

On behalf of the respondent, learned counsel submitted that the appellant was negligent in the management of the deceased. He stated that negligence is a matter of fact, not law so that each case must be decided in the light of its own facts. He relied on the cases of SBN v. Motor Parts Installation Ltd. (2005) All FWLR (Pt. 260) 103; A.P v. Soyemi (2008) All FWLR (Pt. 397) 1117; Kanu Ltd v. FBN Plc (2006) 8 MJSC 117. He enumerated the three things to prove negligence to include: 1. that the defendant owed the plaintiff duty of care; 2. that there was a breach of the duty; and 3. that the breach caused damage to the plaintiff. He sought in aid the case of FBN Plc v. Associated Motors Co. Ltd. (1998) 10 NWLR (Pt. 570) 441.

Learned counsel took the view that the appellant owed the respondent duty of care. She postulated that the functionaries of the appellant, from the totality of the pleadings and evidence, were manifestly negligent in the management of the deceased while on admission in the appellant. She noted that the deceased was admitted for dribbling urine and slurred speech which the appellant admitted were not life-threatening. She added that the deceased was diabetic and hypertensive, but the evidence of the appellant showed it had control of them on admission. She posited that exhibit 251, the deceased death certificate, showed he died of respiratory failure and acute renal failure for which he was never admitted. She noted that the deceased was denied fluid input and output leading to dehydration and renal shut down, an indication of negligence. She stated that the court can draw inference of the negligence in law, relying on the cases of Edokpolo & Co. Ltd. v. Ohenhen (1994) 7 NWLR (Pt. 358) 511; High-Grade Maritime Service Ltd. v. FBN Ltd. (1991) 1 NWLR (Pt. 167) 290. Learned counsel further opined that some medicines prescribed for the deceased were not administered because iv line “tissued” and “doctor called but not seen” as shown in exhibit 652.

She reasoned that PW1 is a medical practitioner and an expert. She relied on his statement on oath. She added that the appellant corroborated the pleadings and evidence of the respondent under cross-examination. She maintained that PW2 is a qualified expert (medical doctor) who qualified to give evidence on the negligent treatment of the deceased thereby making the case of George v. CBN (supra) inapplicable even on grounds of facts. She reasoned that the negligent conducts of the appellant could be deciphered by an ordinary reasonable man, for example, failure to apply the required drugs and medications. She emphasized that the deficiency in the fluid balance chart in PW1’s evidence, exhibits 249 and 251 indicated appellant’s negligence.

Learned counsel contended, in the alternative, that there were other negligent conducts of the appellant which did not require an expert knowledge such as: “iv line tissued and doctor called not seen” as indicated on pages 586, 599 and 606 of the record; treating the deceased for cancer, a disease he never had as indicated in exhibits 596, 597, 602, 270 – 271; the undating of some pages of case notes as indicated in exhibits 573 and 574; the presence of bedsore in the deceased indicating poor nursing as admitted by DW1. She postulated that the appellant’s failure to reply exhibit 250, written by the respondent’s family lawyer, amounted to admission. She cited the cases of Mobil Producing (Nig.) Unltd. V. Udo (2009) All FWLR (Pt. 482) 1177 and Ighosewe v. Delta Steel Co. Ltd. (2008) All FWLR (Pt. 410) 741 to support her view.

Issue three

Learned counsel submitted that the various sums of money shown in the receipts, exhibits 1 – 248, could not be described as items or heads of special damages as they were spent in the care, management and control of the deceased. He placed reliance on the cases of NICON Hotels Ltd. v. Nene Dental Ltd. (2007) 13 NWLR (Pt. 1051) 269 and Ebe v. Nnamani (1997) 7 NWLR (Pt. 513) 501 on the purport of special damages. He posited that the items were not pleaded with particulars; adding that it was not enough to plead them in a lump sum manner.

He further submitted that the award of general damages by the lower court was speculative arbitrary, capricious, without a base and based on sentiment which had no place in law. He added that the award amounted to double compensation. He explained that the claim was for breach of contract based on the alleged negligence of the appellant. He persisted that it was wrong to award special and general damages as did the lower court. In support of that submission, he referred to the case of Alhaji Ahmadu Gari v. Seirafina (Nig.) Ltd. (2008) All FWLR (Pt. 399) 434.

For the respondent, learned counsel contended that he, duly, pleaded with particulars, and led evidence on special damages as shown in exhibits 1 – 248 – some medical and burial expenses. She relied on the cases of Akinkugbe v. Ewulum Holdings (Nig.) Ltd. (2008) All FWLR (Pt. 432) 1269 and Chief J.A. Adenugba v. Woli Elijah Okelola (2008) All FWLR (Pt. 398) 292. She stated that the respondent discharged the burden on him under special damages by pleading the items and tendering exhibits 1 – 24. She cited the case of Xtoudos Services (Nig.) Ltd. v. Taisei (WA.) Ltd. (2006) All FWLR (Pt. 333) 1640 to back up her contention. Learned counsel argued that both counsel agreed on the total value on the receipts as N3,138,230.00 so that it was unchallenged. She sought in aid the case of Governor, Ekiti State v. Chief George Femi Ojo (2006) All FWLR (Pt. 331) 1298. She added that the receipts were proof of medical expenses on the deceased. She described the cases of NICON Hotels Ltd. v. Nene Dental Ltd. (supra) and Ebe v. Nnamani (supra) as inapplicable to the case.

Learned counsel further contended that the award of general damages was different from that of special damages and same would not amount to double compensation. She cited the cases of Adekunle Oloyede v. Pior (2005) All FWLR (Pt. 279) 1277 and Xtoudos Services (Nig.) Ltd. v. Talsel (W.A.) Ltd. (supra) to support her contention. She noted that the lower court proferred the reasons for the award of general damages against the appellant.

On points of law, learned counsel for the appellant contended that the drugs purchased, the cost of examination and test conducted were done to ensure that the deceased regained his health and so not items of special damages. He relied on the case of A.G. Leventis Nig. Plc v. Akpu (2002) FWLR (Pt. 121) 1885. He persisted that the appellant never admitted the items of special damages; adding that award of special damages could not be based on admission. He placed reliance on the case of Ojotu Samuel Adekunle v. Spring Bank Plc (2011) All FWLR (Pt.601) 1457.

Resolution of the issues

For the sake of orderliness, I will attend to the three issues in their numerical sequence. To this end, I will kick-off with a consideration of issue one. The focus of the appellant’s complaint on issue one is that improper keeping of the deceased’s medical records was unpleaded thereby making the lower court’s use of same as an aberration in law.

Any evidence which is not based on pleadings or at variance with them goes to no issue and liable to discountenance, see Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; UBN Plc v. Ajabule (2011) 18 NWLR (Pt.1278) 152. Perhaps, it is the pervading and all-important nature of pleadings in adversarial system of adjudication that informed the appellant’s complaint on this issue.

In order to ensure a dispassionate and balanced consideration of the issue, I have read, with a fine toothcomb, the pleadings of the parties staggered in the expansive and mountainous volumes I and II of the printed record, shown on pages 3 – 8, 131 – 138 and 816 – 818. In paragraph 5(i) (xi) of the respondent’s statement of claim, located on pages 4 – 6, of volume I, of the record, he catalogued his particulars of negligence against the appellant. It is true that through the entire gamut of his statement of claim, I am unable to see where improper keeping of record was made a particular of the negligence. Nevertheless, in paragraph 10 of the respondent’s amended reply to the statement of defence, found on page 818, volume II, of the record, it is averred:

10. The plaintiff shall rely on the case folder of his deceased father attached to the statement of defence in proof of some of the negligent conducts of the functionaries of the deceased (sic) at the time he died. The plaintiff shall give evidence of the distillable negligent conducts and shall rely on a fluid daily and input chart prepared from the case file”

The deceased’s medical records were embedded in his case folder/file, alluded to in paragraph 10 of the reply, whence negligent acts of the officers of the appellant were deducible. It is my view that this averment, though not encapsulated in paragraph 5 of the respondent’s statement of claim where the particulars of negligence were warehoused, evinces improper keeping of record and, amply, qualifies as a particular of negligence. This is in keeping with the conjoined/communal appraisal of pleadings so as to garner harmonious and meaningful case of a party. The averment becomes more relevant and impregnable when it is predicated on the statement of defence of the appellant. My foregoing view point is consolidated by the case of Okochi v. Animkwoi (2003) 18 NWLR (Pt.851) 1 at 24 wherein Tobi, JSC, lucidly, stated:

“…In coming to this conclusion, the court below only made use of paragraphs 7 and 15(a) of the further amended statement of claim in isolation of other equally relevant paragraphs. In dealing with pleadings, a court must read all the paragraphs together to get a flowing story of the parties and not a few paragraphs in isolation. It is the totality of the pleadings, whether it is the statement of claim or the statement of defence, that state the case of the party and it will be injustice to invoke only a few paragraphs to come to the conclusion…”

On account of this current position of the law, that pleadings of parties should be given a holistic examination, it will be an arrant defilement of the law, and preposterous even, to buy the contention of the appellant on this issue. Again to insist, as did the appellant, that a particular of negligence must be captured within the area or paragraph carved out for particulars of negligence will tantamount to sacrificing substantial justice and law on the dirty shrine of form and, by extension, technicality, a defunct and buried term in the Nigerian legal system. Put the other way round, the respondent, duly, pleaded the knotty and critical facts relating to improper keeping of record as decipherable from the averment adumbrated above. The averment does deserve the appellation of blanket allegation, ascribed to it by the appellant as to offend the principle of stating particulars of negligence as restated in the cases of Zaccheus Abiodun Koya v. UBA Ltd. (supra) and Machine Umudje v. SPDCN Ltd (supra) upon which the appellant anchored its submission.

In the light of these legal expositions, I am clear in my mind that the lower court acted within the province of the law when it treated the issue of improper keeping of record as a particular of negligence against the appellant. I, therefore, find the finding of lower court on this issue quite unimpeachable and I will be loath to tinker with it so as not to insult the law. On this premise, I have no option than to resolve issue one against the appellant and in favour of the respondent.

Now, I will proceed to tackle issue two. The gravamen of the appellant’s grievance is that the respondent did not prove the allegation of negligence against it and that the lower court improperly evaluated the evidence. This issue is the nucleus of the appeal and its (the appeal’s) fate, entirely, turns on its resolution. It resolves around medical negligence.

The nagging question, begging for an answer, is: did the respondent establish these mandatory elements of negligence? To begin with, in an avowed desire to prove these ingredients, the respondent fielded two witnesses who offered prolix viva voce and sea of documentary evidence, exhibits 1 249. On the first ingredient, evidence, from both parties, showed that the respondent’s father was a patron of the appellant for the treatment of dribbling urine and slurred speech on 11/01/2008. It is, therefore, axiomatic that the appellant owed the deceased a duty of care to give him the necessary therapies that would cure his ailments. The reason is not far-fetched. The deceased, amply, fall within the domain/ambit of neighbour, “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’, as propounded by Lord Atkin in the remarkable case of Donoghue v. Stevenson (supra). In sum, I hold that the respondent established the presence of duty of care between the deceased and the appellant.

Did the appellant violate the duty of care it owed to the deceased? While the respondent holds, tenaciously, to the view that the appellant did, the appellant sticks to a diametrically opposed stance, id est, that it did not.

It is a common ground, as gleaned from the evidence on record, that the deceased was 78 years old when he was admitted, as an inpatient, by the appellant for dribbling urine and slurred speech. Evidence, also, disclosed that the septuagenarian patient of the appellant had a surgical operation for prostrate cancer 5 years as at 2008 and was suffering from mild diabetes mellitus and hypertension whilst on admission in the appellant. Evidence further revealed that the endocrinology, neurology, nephrology, urology and neurosurgical units (5 units) of the appellant managed and treated the deceased during his admission. Evidence on record unveiled that the deceased, during his admission, had computerized tomographic (C.T.) scan which signified blood collection in his brain (subdural hematoma) which resulted to two successful Bore Hole (drainage) surgical operations by the neurosurgeons of the appellant. I have given a microscopic examination to the deceased’s wordy case notes, wrapped in his folder, admitted as exhibits 252 – 755. They contain the treatment administered to the deceased in terms of hours, days, weeks and months for the 74 days he was hospitalized in the appellant commencing from 11/01/2008 – 26/03/2008. Some of the myriads of exhibits, exhibits 252 – 755, are dotted with the demonstration of the deceased’s blood pressure level, sugar level fluid level, test reports and drugs, tablets and injections prescribed by the functionaries of the appellant for his treatment.

I decided to extract and highlight some of the relevant pieces of evidence in order to demonstrate that the officers of the appellant, to my mind, exercised their best professional skills and dexterity in the management of the deceased. In holding this viewpoint, I take into account’ perforce, the protracted period the deceased was hospitalized, 74 days, his age, 78 years old, the terminal diseases that were tormenting him before his admission and other complicated and killer ailments that sprouted from the original maladies. I am not oblivious of the evidence that the case notes of Chinwuba Njideka (exhibit 461)/Ogunleye Babatunde (exhibit 421) and Bashir Binta (exhibits 596, 602 and 671), found on pages 1251, 1301, 1428, 1434 and 1502 of volume III of the record respectively, mysteriously, found their ways into the deeased’s folder. However, in my humble view, that has to do with the error in the filing system which, according to DW1, under the crucible of examination on page 874, volume II, of the record “has nothing to do with giving drugs to patients”. Exhibit 251, the deceased’s death certificate, contained 25/03/2008 as the day he died while the case note indicated 26/03/2008. DW1, under cross-examination, conceded that the doctor who issued exhibit 251 was careless, but the date in the case note superseded. That evidence explained away the inscription of an incorrect date of the deceased’s death in exhibit 251. I would draw the irresistible inference that the non-arrangement of some pages of the deceased’s case notes in non-sequential and chronological manner would, premised on the explanation of DW1, be an ordinary error in filing without affecting the administration of drugs on the deceased. Exultanly, the law gives me the latitude to make the inference, see Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421. Exhibit 652 revealed i.v tissued and doctors not seen to reset, as shown on page 1484, volume III, of the record. Those incidents took place on 11/03/2008. Those incidents, which smack of negligent acts, are infinitesimal when compared to the treatment doled to the deceased for the months he spent in the appellant with proper attention.

The deceased’s fluid input and output were captured in a chart, exhibit 249, a five-page document. The exhibit prima facie tends to dent the competence of the functionaries of the appellant on the administration of fluid on the deceased. Nonetheless, DW1 tendered exhibits 756 – 759. Both exhibits 249 and 756 -759 are products distillates of exhibits 252 – 748. It is plain to me that exhibits 756 – 759 have sufficiently deflated/countered the deceased’s negative fluid input and output within the period in question as indicated in exhibit 249. At this juncture, it is pertinent to place on record the potency of the evidence of DW1, PW2, Dr. Dele Abegunde, who tendered exhibit 249 was a resident doctor. Contrariwise, DW1, Abdul Lateef Isah Babata wears the rare, covered and prestigious title of a consultant surgeon. A Consultant is “A fully trained specialist in a branch of medicine who accepts total responsibility for patient care”, see Oxford Concise Medical Dictionary, Sixth Edition, page 155. Indubitably, DW1 was an expert witness.

In the eyes of the law, an expert witness is one who is specially skilled in the field he is giving evidence, see A.G., Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1; Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535. Being an expert witness, the law gives me the licence to crown his evidence with the toga of high probative value. On this score, the evidence of DW1 make mincemeat of those of PW1 in all aspects they were on collision course.

The respondent picked quarrel with the disease that snuffed life out of the deceased as it was distinct from that that took him to admission in the appellant. As already noted, severally, in this judgment, the deceased had a dribbling urine and slurred speech when he visited the appellant for a checkup. Exhibit 251 shows that he eventually died of respiratory failure as a consequence of acute renal failure, diabetes mellitus and hypertension. The respondent’s grouse overlooks the evidence of DW1, lodged on page 820, volume II, of the record, that:

“The condition of the deceased was complicated by development of generalized sepsis and Gluteal Sores, which usually follows prolonged lying in bed; azotemia and finally acute renal failure. As a result of the deteriorating critical state of health of the deceased, he was moved to the Intensive Care Unit for intubation and ventilator – assisted respiration and close monitoring. He later went into respiratory insufficiency and cardial arrest and was certified dead at 8.20 pm on 26/03/2008”

In the first place, the DW1, a specialist witness, was never cross-examined on the critical evidence throughout the period he went through the furnace of cross-examination. By law, the respondent’s failure to ask him question(s) thereon is a tacit acceptance of its truth, see Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583. It follows that the respondent unwittingly conceded that respiratory insufficiency/failure terminated the deceased’s precious life. Besides, the displayed crucial evidence demonstrates that there is a nexus between the initial diseases that took the deceased to the appellant and the one (s) that annihilate his life. That apart, the PW2, Dr. Dele Olawale Abegunde, conceded, under the cross-fire of cross-examination, on page 865, volume II, of the cold record of appeal, that: “Death is probable on the day of birth or even now”. Even then, it is a fact of life that every man must die one day through one disease or circumstance or the other. The deceased must not die through the ailments that compelled him to visit the appellant. Whereas, he could exit the earth by dint of those ailments, it is immutable that any other malady could take his life during his unenviable stay in the appellant. After all, longevity of life is a monopolistic gift from our Creator. Perhaps, that accounts for the medical jargon/aphorism that: doctors cure while God heals. Given all these, I cannot fathom out the basis of the respondent’s contention on this point and I discountenance same without much ado.

The foregoing forensic analyses find deep anchorage in the case of Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173. Therein, a needle got broken in the abdomen of the appellant during surgical operation. It was held that the respondents exercised their best medical skills and so not negligent. To fortify the decision, the apex court borrowed the illuminating and incisive words of the great jurist, Lord Denning, in his book, The Discipline of Law, pages 237, 242 and 243 wherein he opined:

“A medical man, for instance, should not be found guilty of negligence unless he has done something of which his colleagues would say: “He really did make a mistake there. He ought not to have done it’…but in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter what care is used. Every surgical operation involves risks. It would be wrong, and indeed, bad law, to say that simply a misadventure or mishap occurred, the hospital and the doctors are thereby liable. It would be disastrous to the community, if it were so. It would mean that a doctor examining a patient, or a surgeon operating at a table, instead of getting on with his work, would be forever looking over his shoulder to see if someone was coming up with a dagger for an action for negligence against a doctor is for him like unto a dagger. His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body. You must not therefore, find him negligent simply because something happens to go wrong…. you should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man, in short, when he is deserving of censure.”

The decision, seriously, bears out my viewpoints in the case in hand. The appellant, qua its staff, applied the best medical skills in the management of the deceased. A reasonable man is a person who acts sensibly, does things diligently and takes proper, but not excessive, precautions. No medical doctor can conclude that the functionaries of the appellant failed/neglected to do what a reasonable man, under those circumstances, would do in the treatment of the deceased. In sum, I hold that the appellant displayed the required standard of a reasonably skilful medical man in the management of the deceased.

In the aggregate, it is my view, after due consultation with the law, that the appellant did not breach the duty of care it owed the deceased during the period that he patronized it for his medical treatment. Simply put, the respondent failed to fulfill the second ingredient of negligence already outlined at the dawn of this issue. It admits of no argument that the second ingredient is the keystone for the third ingredient of negligence, occurrence of damage. It stems from that, that the respondent has not, de jure, met the third ingredient as it is impossible for him to incur injury without the appellant’s infraction of its duty of care. All in all, I return a negative answer to the question posed earlier, that is, the respondent failed, woefully, and on the preponderance of evidence to establish medical negligence against the appellant.

The corollary of the above finding is that the lower court did not exhibit diligence and assiduity in the evaluation of the oral and documentary evidence before it. In the legal parlance, the finding of the lower court on this issue was perverse. A verdict of court is perverse when: it runs counter to the evidence and pleadings before it, a court takes into account matters it ought not to take into consideration, a court shuts its eyes to the evidence or it has occasioned a miscarriage of justice, see Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448. Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427; Onyekwelu v. Elfpet (Nig.) Ltd. (2009) 5 NWLR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217.

The finding of the lower court, totally, ignored/sidelined the battery of oral and documentary evidence before it and same snowballed into a miscarriage of justice. A miscarriage of justice is failure of justice, see Abubakar v. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1330) 523. It comes to limelight when a court, after a thorough examination of the entire case, inclusive of the evidence which encompass viva voce and documentary, is of the view that it is reasonably probable that a result more favourable to the appellant would have been reached in the absence of the error the appellant complained of, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76; Akpan v. Bob (supra). It is obvious the appellant would have received a more favourable result but for the lower court’s perfunctory assessment of the incorruptible documentary and oral evidence furnished before it. On this premise, I find the decision of the lower court on this all-important and decisive issue very assailable. Exultantly, I have the unbridled mandate of the law to tamper/interfere with the finding, see Purification Technique (Nig) Ltd v. Jibril (2012) 18 NWLR (Pt. 1331) 109; BFI Group Corp. v. B.P.E. (2012) 18 NWLR (Pt. 1332) 209. I, therefore, vacate the finding on account of perversity. In the circumstance, I resolve the issue in favour of the appellant and against the respondent.

That brings me to issue three. The meat of the issue is whether the lower court’s award of special and general damages was not wrong in law. I must observe, pronto, that the resolution of issue two in favour of the appellant renders a consideration of this issue idle. The reason is simple.

The respondent’s principal claim, as can be collated from his statement of claim, precisely on page 8, volume I, of the record, is rooted in negligence. His other claims for special and general damages exude symbiotic relationship with the main claim as secondary claims. It is trite that where a party’s principal claim fails, the accessory claims that are appendages to it will fail too. This cardinal principle of law was, clearly, espoused by the Supreme Court in the cases of Fagunwa v. Adibi (supra) and Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) 312. The principle traces its paternity to the Latin maxim: Accessorium seguitur principale – an accessory thing goes with the principal to which it is incidental to, see Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 564 – 565. Unarguably, this settled position of the law sets a seal on the fortune of the respondent’s claims for damages. Since the finding is that the appellant was not negligent in the course of its treatment of the respondent’s demised father, a finding there are no extenuating circumstances to disturb, the respondent’s claims for special and general damages have no substratum to perch for existence; being appurtenant to the failed relief in negligence.

Be that as it may, the respondent claimed the sum of N20 Million as special damages.

Then, did the respondent meet these hallmarks of special damages? I have my doubts. In paragraph 12 of the respondent’s statement of claim, found on page 7, volume 1, of the printed record, he averred:

“12. The plaintiff further contends on the premise of the foregoing that the family of the deceased is entitled to a refund of the medical and burial expenses incurred on the deceased as special damages as well as general damages.

PARTICULARS OF SPECIAL DAMAGES

Medical Expenses……………………N15 Million

Burial Expenses………………………N15 Million

The relevant receipts and documents in this regard are hereby pleaded.”

The above particulars of special damages are susceptible to easy comprehension even by uniformed legal minds. It is crystal clear that those particulars do not condescend upon the specific items that constitute the medical and burial expenses. In other words, the particulars are in the blanket/lump form. The respondent was, unjustifiably, stingy in the particularization of the various items the monetary quantification of which will sum up the total claimed sum of N30 Million as special damages. In view of this void of specificity of the items, I hold the opinion that the respondent’s particulars of special damages, as terse as they unwarrantedly appear, run foul of the law as dissected above. The respondent should have outlined the costs of drugs, tests, hospital bills, coffin, embalmment, transportation etc as items under the particulars of special damages.

That is not all. There is another flaw which plagues the respondent’s claim for special damages. The total sum claimed, via the laid out medical and burial expenses, is N30 Million. Under relief iii, he claimed: “A sum of N20 Million as special damages.” The two sums do not tally as they remain incompatible in the realm of mathematical computation. Which sum does the respondent prefer? Perhaps, the sum of N20 Million which is in tandem with the testimony before the lower court. That makes the evidence at variance with the pleadings of N30 Million as general damages and makes the former liable to discountenance and expunction. The lower court awarded N3,138,230=, the value of exhibits 1 – 248, as special damages based on the agreement of learned counsel for the parties. That agreement by the appellant’s counsel is a paradiagn of admission. As already noted, on the ex cathedra authorities of SPDC (Nig.) Ltd. v. Tiebo VII (supra);

Akinkugbe V. E-H. (Nig.) Ltd. (supra) and NNPC v. Klifco (Nig.) Ltd. (supra) admission of special damages does not absolve a claimant of same from strict proof.

These apart, the medical expenses, grounded on exhibits 1 – 248, were for the tests conducted and drugs administered on the deceased while on admission in the appellant. PW2 admitted, under cross-examination, that the remnants of the drugs were returned to him. There is no tinge of evidence that the deceased or the respondent was exposed to additional and unforeseen expenses in terms of treatment in another hospital owing to the appellant’s negligent management of the deceased. It is for these reasons that I am, wholeheartedly, in accord with the appellant that the medical expenses were incurred in furtherance of the deceased’s health and, ipso facto, do not constitute items of special damages. The PW1 agreed, during cross-examination on page 853, volume II, of the record that: “Even if he died in a motor accident or was killed by an armed robber, we would still have given him a befitting burial”. That piece of evidence is in keeping with the view of the appellant that burial expenses are according to one’s choice. I think I have showcased sufficient number of pitfalls that bedeviled the respondent’s supplication for special damages such that it would have been ill-fated/non-starter even if the appellant were to be guilty of medical negligence.

General damages are those damages that the law presumes as flowing from the wrong complained of by the victim. They need not be specifically pleaded and strictly proved, see UBN Plc v. Ajabule (supra); Neka B.B.B. Mfg. Co. Ltd. v. ACB Ltd. (supra). It is at the discretion of the court to award general damages, see Cameroon Air Lines v. Otutuizu (supra); Ahmed v. CBN (supra). I had, under the resolution of the second issue, reached a finding that exculpated the appellant of medical negligence. I have no reason, at my disposal now, to upset that solemn finding. Going by the finding, the lower court’s award of general damages of N5 Million in favour of the respondent was injudicious. This is because, I had found the lower court’s finding on breach of duty of care as fraught with perversion. For that reason, the award has no materials upon which it would be hinged to survive. Overall, I hold that the award of the special and general damages was not in consonance with the law. To this end, I resolve issue three in favour of the appellant and against the respondent.

On the whole, given the reasons advanced hereintofore, with the aid of the law, and the resolution of issues two and three in favour of the appellant, the appeal is, highly, imbued with merit. Consequently, I allow it. Accordingly, the decision of the lower court, delivered on 22/07/2011, is hereby set aside for want of legal justification. For the avoidance of doubt, the respondent’s action is dismissed in its entirety. The parties shall bear respective costs of prosecuting and defending the appeal.

Consideration of the cross-appeal.

The cross-appellant, the appellant in the principal appeal, was aggrieved by part of the decision. Consequently, he filed one-ground notice of cross-appeal on 17/02/2012. In the cross-appellant’s brief of argument, he distilled a single issue for determination, having withdrawn the second one and same struck out, to wit:

“Whether the sum of N5 Million only awarded by the trial court as general damages against the cross-respondent is not ridiculously small considering “the statistical value of life” and unquantifiable trauma the family members went through”

In the cross-respondent’s brief of argument, it identified a mono issue for determination viz:

“Whether in all the circumstance of this case the Court of Appeal Should interfere with the award of damages by the trial Court”

I have compared the two sets of issues formulated by the parties. To my mind, the two issues are the same in substance, one a clone of the other. For this reason of oneness, I will decide the appeal on the cross-appellant’s issue for determination; being the party incensed with a portion of the decision.

Arguments on the issue

Learned counsel for the cross-appellant submitted that an award of damages is a matter for a trial Judge and an appellate court would not normally interfere. She enumerated the circumstance under an appellate court would interfere. She relied on the case of UBA Ltd. v. Odusote Bookstores Ltd. (1995) 12 SCNJ 175 and Ighosewe v. Delta Steel Co. Ltd. (supra). She took the view that the general damages awarded were too low. She posited that the cross-appellant established that family members of the deceased suffered loss, pain and agony on account of negligent treatment given to the deceased and should be assuaged with a substantial compensation.

Learned counsel further submitted that assessment of damages should be fair and reasonable bearing in mind previous awards made by courts in comparable cases in similar jurisdiction or in neighbouring locality where similar social, economic and industrial conditions exist. She relied on the case of Ighosewe v. Delta Steel Co. Ltd. (supra). She stated that the courts had granted qualitative and quantifiable damages in matters where death was not a consequence of a defendant’s action. She cited the unreported cases of Miss Uzoma Okerc y. Rear Admiral Arcgundade and Baba Suwe (Suit No. FHC/ABJ/CS/877/2011), both delivered by the Federal High Court. She reasoned that in analyzing the damages where life was lost the court should assess the statistical life value of the life lost and the damages incidental thereto; adding that the lower court’s failure to do that conferred the court with the unfettered discretion to review the general damages awarded. She postulated that the value of statistical life of an individual is an internationally accepted basis for estimating compensation in personal injury cases as well as cases of loss of life. He added that the sums of 6.9 Million and 1.27 Million Dollar had been estimated as the value of statistical life in United States of America and United Kingdom respectively. She insisted that the sum of N5 Million awarded as general damages was ridiculously low having regard to the estimates of other countries in the world, current exchange rate and the psychological trauma suffered by the deceased’s family members.

For the cross-respondent, learned counsel argued, per contra, that general damages is usually what in the opinion of a reasonable man it should be; noting that the court is not guided by any statistical data and that the lower court applied the test. He cited the cases of Alhaji Ahmadu Gari v. Seirafina (Nig.) Ltd. (2008) 2 NWLR (Pt. 1070) 1; UTB (Nig.) Ltd. v. Alhaji Adamas Ajagbule (2006) 2 NWLR (Pt.965) 447 to support his argument. He posited that none of the principles, under which an appellate court can interfere with the award, can be tied to the cross-appellant’s complaints. He sought in aid the case of UBN (Nig.) Ltd. v. Odusote Book Stores Ltd. (1995) 9 NWLR (Pt. 421) 558. He maintained that the award was not ridiculously low. He submitted that issue of statistical value of life was not borne out by evidence and the case was not based on fatal accident.

On points of law, learned counsel for the cross-appellant contended that the issue of statistical value of life must not be pleaded and proved. He placed reliance on the case of UBN (Nig.) Ltd. v. Alhaji Adamas Ajagbule (supra).

Resolution of the issue.

There is an apparent linkage between the determined issue three in the main appeal and the mono issue in this cross-appeal. In view of this symmetrical relationship, it is obvious that the main appeal and the cross-appeal are intertwined to that extent. On this premise, I intend to deal/treat the cross-appeal summarily to avert an unnecessary duplication of efforts and waste of scarce judicial time. In this perspective, I draw inspiration and strength from the case of Unity Bank Plc v. Bouari (2008) 7 NWLR (Pt. 1086) 372 at 413 wherein Tobi, JSC, succinctly, opined:

“Learned counsel for the appellants argued that the Court of Appeal was wrong in dismissing the Cross-appeal summarily without finding on the issues of law that were raised in the appellant’s cross-appeal and expatiated in their brief of argument. While I concede that a cross appeal is an independent appeal, having a life of its own in the appellant process, it could have some affinity with the main appeal as they criss-cross. There are instances where a decision of the main appeal affects and in fact disposes of the crux or fulcrum of the cross appeal. In such situations, it will be merely repetitive and will not serve any useful purpose for an appellate court to go over the arguments raised by the cross appeal in his brief. In such situations, and in order to avoid repetition and superfluity, an appellate court has the option to dismiss a cross-appeal summarily in the way the Court of Appeal did in this appeal. I do not see anything wrong procedurally in what the Court of Appeal”

In the tedious course of considering the main appeal, I found that the lower court’s award of N5 million as general damages to the cross-appellant was hostile to the law. This court has not been given any reason for me to depart from that solemn finding. Given that finding, the propriety, in terms of quantification, or otherwise of N5 million, which is the linchpin of the cross-appeal, pales into insignificance. Put differently, and clearly too, having declared the award of N5 million as unjustifiable in law, the issue of whether it is ridiculously low, the meat of the cross-appeal, does not, in the least, arise any longer. It would have been otherwise if I had held, in the principal appeal, that the award is cognizable in law thereby making way for an examination of its quantum. As it stands, the solitary issue in the cross-appeal has no plinth to stand on and await any detailed consideration; the award having been done away with in the main appeal. As a consequence, I have no choice than to resolve the singular issue against the cross-appellant and in favour of the cross-respondent,

Overall, flowing from the foregoing reasons, I hold that the there is not a jot of merit in the cross-appeal, Consequently, I dismiss it. The parties shall bear their respective costs of prosecuting and defending the doomed cross-appeal.

HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of previewing the eloquent judgment of my learned brother Ogbuinya, JCA. I fully agree with the reasons therein and the conclusion that the appeal is meritorious and succeeds perforce while the cross appeal correspondingly fails. I adopt same and hereby allow the appeal and dismiss the cross appeal. I subscribe to the consequential orders made in the judgment.

TIJJANI ABUBAKAR, J.C.A.: My learned brother, Obande Festus Ogbuinya JCA granted me the privilege to read before now the lead judgment just delivered.

My learned brother dealt with the issues in the appeal and cross appeal, his resolution of the entire issues was thorough. I accept his reasoning and conclusion, I adopt them as mine.

I also allow the appeal and set aside the decision of the lower Court delivered on 22 July, 2011, I also dismiss the cross appeal.

Parties shall bear their respective costs.

Appearances

Olajide Ayodele, SAN (with him, Mausuma Isa, Esq, Yakub Omotosho, Esq., I.G. Waru, Esq., Akin Ayodele, Esq., and Bola Ayodele, Esq.) for the appellant/cross-respondent.For Appellant

AND

Mrs E.O. Adewoye (with her, Y. A. Alayo, Esq.) for the respondent/cross-appellantFor Respondent