Dr. Rom. Okekearu V. Danjuma Tanko (2002)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C.

This appeal is from a judgment of the Court of Appeal (Abuja Division) delivered on the 24th day of April, 1997. The lower court reduced the amount of N100,000.00 general damages awarded against the appellant to N50,000.00 for battery resulting from the amputation of the left centre finger of the respondent.

The facts that led to the institution of this case are as follows:

The plaintiff by his 18 paragraph amended statement of claim averred that on or about August 1991, in the course of removing some zinc from his mother’s residence, he injured his left centre finger. He said the wound was not deep. Notwithstanding, the plaintiff’s neighbours took him to the defendant’s clinic. The defendant without due care and skill negligently amputated that finger, an exercise that permanently disfigured and incapacitated the plaintiff in handling objects. The plaintiff further averred that the defendant refused to surrender the amputated part of the affected finger. He said he reported the matter to the police at Nyanya police station.

The defendant Dr. Rom. Okekearu denied the claim. In a 22 paragraph amended statement of defence, he averred that the plaintiff sustained an injury whilst he and other boys were carrying a poultry pen which fell and crushed the plaintiff’s middle finger. He averred further that when the plaintiff accompanied by neighbours was brought to his clinic, he had the middle finger tied with a piece of cloth which was badly stained with blood. On removal of the cloth blood gushed out of the finger and he discovered that the distal portion of the finger was almost completely severed from the rest of the finger except for a strip of skin which held same together. The bone in the said distal part was broken and the reasonable medical option open to him was to trim off the said strip of skin and stitch the wound. The defendant denied negligence. He averred that there was no need for an x-ray of the said finger, the same having been traumatically amputated partially at the time of the injury. Further that the distal part of the plaintiff’s finger was disposed of in accordance with standard medical practice.

The defendant counterclaimed for the outstanding medical fees of N125,000.00 and general damages for injurious falsehood.

After hearing evidence Kolajo J., gave judgment in favour of the plaintiff awarding him the sum of N100,000.00 general damages for permanent incapacity, negligence and battery resulting from the amputation of the left centre finger of the plaintiff. The learned trial Judge dismissed the counterclaim.

Aggrieved by the said judgment the defendant appealed to the Court of Appeal. The Court of Appeal on 24th April, 1997 allowed the appeal in part, reduced the award of N100,000.00 to N50,000.00 being damages for battery only.

Still aggrieved, the defendant has further appealed to this court.

In his brief of argument the defendant as appellant set down two issues for determination in this appeal. They read as follows:

1. Was the Court of Appeal right after holding that the appellant is not liable for negligence, to hold the appellant is liable for battery
2. Was the Court of Appeal right to have awarded the sum of N50,000.00 when a case of battery was not made out

The plaintiff, for his part, has adopted the two issues for determination as formulated by the defendant.

Issue 1

Under this issue the defendant states in his brief of argument as follows:

“Battery is the intentional not direct application of force to another (italics mine). See Winfield and Jolowiez on Tort (12th ed.) 54. Furthermore in battery it is not necessary that there should be any bodily contact between the defendant and the plaintiff. This is sufficient if the defendant directly brings some material object into contact with the plaintiff’s person. The learned authors of Clerk & Lindsell on Torts 1969 (13th ed.) para. 672 at p. 340 had this to say: