Miss Felicia Osagiede Ojo V Dr. Gharoro (2006)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

This appeal has to do with the management of a patient by medical practitioners. The appellant is that patient. She is Miss Felicia Ojo. I have omitted her middle name. I hope no harm is done. Although the 1st and 3rd respondents are the medical practitioners involved in this appeal, the 3rd respondent was more in it. The common and market-place name for medical practitioner is doctor. That is the name used in identifying the 1st and 3rd respondents in the proceedings. Doctors are easy to locate or identify in hospital premises. They usually wear lab coats and stethoscopes to match. Patients are their clientele.

Let me leave the parenthesis and come to the real matter. It was a surgical operation undertaken by the 3rd respondent, Dr. S. A. Ejide, who at the material time was a Senior Registrar. The doctors gave professional name to the operation. It is a gynaecological surgical operation. That is a big one. The 1st respondent so calls and so be it. Let me tell the full story.

Like most, if not all Nigerian women, the appellant needed a child or children. That took her to the University of Benin Teaching Hospital, the 2nd respondent. The 1st respondent, a lecturer at the University of Benin and an Honorary Consultant in the Obstetrics and Gynaecology Department of the University of Benin Teaching Hospital, Benin City, examined her. The appellant was diagnosed as one having secondary infertility, uterine fibroid and menorrhagia.

That is another big one. Putting it in a less technical language to suit my purpose, the appellant was told that she had a growth in her fallopian tube and that she needed a surgical operation to remove the growth to enable her become pregnant.

Appellant needed to be pregnant and so she consented to the operation. 17th December, 1993 was the date. She kept the appointment. Of course, she must. She needed the operation badly for a child or children. 3rd respondent performed the operation in the theatre of the 2nd respondent. It is the claim of the respondents that the operation was successful. But the appellant thought differently. She felt pains and she reported to the 1st respondent, who asked her to do an x-ray. The x-ray confirmed that there was a broken needle in her abdomen. This resulted in a second operation which could not totally or completely remove the broken needle. And so the appellant sued, claiming the sum of N2,000,000 as special and general damages for negligence.

At the trial court, the appellant gave evidence. So too, the 1st respondent, and one Dr. Sylvester Ojobo and Valerie Bekederemo. After address of counsel, the learned trial Judge dismissed the appellant’s case on the ground that the respondents rebutted the presumption of negligence raised by the appellant. An appeal to the Court of Appeal was dismissed.

Still dissatisfied, the appellant has come to this court. Briefs were filed and duly exchanged. Appellant formulated the following issues for determination:

“1. Whether the learned Justices of the Court of Appeal were right in finding that the evidence of the 1st

respondent was that of an eye witness who can be described as a star witness and therefore attract the most probative value in view of the printed evidence on record AND

If the answer to the afore-mentioned issue is in the negative was there other evidence from which the court could find that the respondent rebutted the presumption of negligence against them

2. Whether the learned Justices of the Court of Appeal were right in their finding that the issue of damages was not covered by the grounds of appeal and therefore incompetent
3. Whether the learned Justices of the court were right in dismissing the case of the appellant in view of the totality of the evidence led
4. Whether the learned Justices of the Court of Appeal were right in holding that the 1st respondent’s evidence on the use of a sub-standard surgical needle by the respondents during the operation of 17/12/93 was a general statement and did not connote liability or negligence by the respondents

AND

If the answer to the afore-mentioned issue is in the negative what is the legal consequence of such adverse admission on the defence of the respondents.”

The respondents adopted issues Nos. 1 to 3 in the appellant’s brief and urged the court to discountenance issue No.4 on the ground that it is hypothetical or academic. I must say right away that I do not see anything hypothetical or academic in Issue No.4. Certainly an issue which is germane to the live issues in the appeal cannot be hypothetical or academic.