Nursing And Midwifery Council Of Nigeria Vs Patrick Ogu & Anor (2019)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, JSC

This appeal is against the judgment of the Court of Appeal, Kaduna Division or Court below or Lower court delivered on the 4th day of July, 2016 Coram: Abba-Aji JCA (as he then was), Akeju and Adefope – Okojie JJCA by which the court below dismissed the appeal of the appellant and affirmed the judgment of the trial Federal High Court.

BACKGROUND FACTS: The respondents as plaintiffs at the Federal High Court complained that the appellant refused to verify the 1st respondent’s practising licence as a Nurse because according to the appellant, the 1st respondent falsified his date of birth by indicating that he was born on the 22nd February, 1984 as contained in its records. The respondents also deposed to the fact that the certificate issued by the appellant to the 2nd respondent contained the photograph of a male person that is certainly different from the 2nd respondent. The plaintiffs/respondents requested the appellant to change the certificate issued to the 2nd respondent by giving the right certificate to the 2nd respondent but it omitted, neglected and/or refused to do so hence the action. It is when the appellant remained adamant in refusing to verify the licence of the 1st respondent and to change the certificate of the 2nd respondent that the respondents approached the Federal High Court, Kaduna seeking the reliefs contained on the face of the Originating Summons before that court. It is the decision of the trial Federal High Court granting the reliefs claimed by the plaintiffs and against the defendants that sparked the appeal against the said judgment to the court below. Again dissatisfied with the decision of the Court of Appeal the appellant has appealed to the Supreme Court. On the 28th day of January, 2019 date of hearing, learned counsel for appellant, A. O. Agbola Esq. adopted the brief of argument filed on 5/10/17. In the brief were formulated three issues for determination, viz: – 1. Whether in view of the decision in Falobi v Falobi, the learned Justices of the Court of Appeal were right when they upheld the decision of the trial Judge which gave judgment in favour of the respondents despite the irreconcilable conflict in the affidavit evidence of the parties. (Ground 1). 2. Whether the appellant was afforded fair hearing, bearing in mind that the judgment of the trial court was hasty, perverse and oppressive, due to the fact that the judgment had been prepared prior to the trial judge sighting of the Further and Better Affidavit of the appellant. (Ground 2). 3. Whether the award of the sum of N5 Million as exemplary and general damages to the respondents was not excessive and unwarranted in the circumstance. (Ground 3). Learned counsel for the respondent, Auta Maisamari Esq. adopted the brief of argument filed on 20/2/18 and differently crafted three issues for determination which are as follows: – 1. Whether the facts and circumstances of this case are such that this Honourable Court will interfere with its long held judicial position that the Supreme Court will not disturb the concurrent finding of facts of two (2) Lower courts. (Ground 1). 3. Whether the Court of Appeal did not consider the principles needed for the award of damages? (Ground 3). I shall make use of the issues as drafted by the respondents and all together even though I would without waste of time strike out Issue 2 since it has to do with an appeal on a question from the trial High Court. Therefore, I shall confine myself to Issues 1 and 3. 1. Whether the facts and circumstances of this case are such that this Honourable Court will interfere with its long held judicial position that the Supreme Court will not disturb the concurrent findings of facts of two (2) lower courts. (Argues Ground 1). 3. Whether the Court of Appeal did not consider the principles needed for the award of t damages. (Argues Ground 3). Learned counsel for the appellant contended that there was conflict in the affidavit evidence on facts that are very material and weighty for a just conclusion of the case and there was need for the court to call oral evidence to resolve the conflicts failing which the case of the respondents would fail. He cited Eboh & Anor. v Oki & Ors. (1974) LPELR – 990 (SC); Akinlolu Akinduro v Alhaji Idris Akaya (2007) LPELR – 344. He further submitted that the amount of damages awarded was excessive and unwarranted in the circumstances of this case and so the intervention of this court is called for. He referred to Solel Boneh Overseas (Nig.) Ltd. v Ayodele (1989) 1 NWLR (Pt.1) 108; Allied Bank of Nigeria v Akubueze (1997) 6 NWLR (Pt.509) 374; UBA Plc v BTL Ind. Ltd (2006) 12 NWLR (Pt.1013) 61; Rookes v Barnard (1964) AC 1129; Eliochin (Nig.) Ltd. v Mbadiwe (1986) 1 NWLR (Pt. 14) 47 etc. Learned counsel for the respondents submitted that there is no basis for this court interfering with the findings and conclusion of the two courts below. He cited Oriorio v Osain (2012) 16 NWLR (Pt.1327) 583; Sakaf. v Bako (2015) 14 NWLR (Pt.1480) 531 at 564; Ifeanyichukwu T.I.V Ltd v O.C.B. Ltd (2015) 17 NWLR (Pt.1487) 1 at 28; Blessing v FRN (2015) 13 NWLR (Pt.1475) 1 at 33. That the two courts below were right in awarding the sum of Five Million Naira as exemplary damages for the infraction done to the respondents. He cited CBN v Okojie (2015) 14 NWLR (Pt.1479) 231 at 263. The appellant anchors its grouse on the basis that the conflict in affidavit evidence on facts that are material and weighty need oral evidence for a just conclusion of the case so as to resolve the conflicts in the affidavit evidence. The stance of the respondents is that no such crucial conflict existed to warrant the calling of oral evidence in resolution thereof. The respondents in their originating summons dated 21st day of October, 2014 and filed on 30th October 2014 sought the following relief: – “A declaration that by the combined effects of the provisions of the Nursing and Midwifery Registration, etc Act, Cap 143 Laws of the Federation of Nigeria 2004 and the provisions of Section 38 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the defendant has wronged the plaintiffs and consequently infringed upon their fundamental rights when, in spite of the information at its disposal the defendant refused to verify the 1st plaintiff’s practising license with the 22nd February 1981 as his birth date claiming that the 1st plaintiff gave his birth date as 22nd February, 1982 instead of 22nd February, 1982″. It is indeed right that where there are material conflicts in the affidavit evidence between that of appellant and respondent the court is enjoined to have such conflict resolved by calling for oral evidence as it is unsafe to act on affidavit evidence strongly contested on the other side and the issue of credibility thereby brought to the fore. In other words, the court acts solely on an affidavit in which the facts are not disputed or where the parties agree that this should be done. I place reliance on Eboh & Anor. v Oki & Ors. (1974) LPELR – 990 (SC); Akinsete v Akindutire (1966) 1 All NLR 147 at 148; Falobi v Falobi (1976) 9-10 SC (Reprint) 1. For clarity, I shall recast some of the paragraphs of the affidavits on either side thus: – Paragraphs 9, 10 and 11 of the Respondent’s supporting affidavit, it is deposed thus: – “9. That the two (2) forms referred to were submitted to the defendant through the school, St Luke’s School of Nursing, Wusasa, Zaria and thereafter, the defendant issued the plaintiff with a licence which a licence which lasted for three (3) years. 10. That again I filled another form for the renewal of my licence and after the defendant verified the information supplied by me both in my index and also in my forms, it issued me with a licence carrying 22nd February, 1981 as my date of birth. The licence issued duly by the defendant is hereby enclosed and marked as Exhibit “D”. 11. That sometimes in 2012,1 applied to the defendant for verification of my particulars to be sent to the Saskatchewan Registered Nurses Association, Canada and the defendant did it without any problem. The verification information that was done by the defendant together with receipt of payment dated 14th November, 2012 are is (sic) hereby enclosed and marked as Exhibit “E”. The defendant/appellant averred in paragraph 2 (e) and (f) of the counter affidavit which is at page 53 of the printed record thus: – “(e) That based on the express declaration made plaintiff, he was listed in the defendant’s record as having a date of birth of 22nd February, 1984. Copy of the extract from the Register of the defendant is attached and marked as Exhibit “B”. (f) That contrary to paragraph 10 of the affidavit in support, the licence carrying 22nd February, 1981 was issued in error by the defendant’s staff without cross-verifying the information with the other documentations in the 1st plaintiff’s file”. Again, the plaintiffs/respondents’ further and better affidavit in paragraphs 10, 11 and 12 hereof sealed the matter. It imperative to produce the said paragraphs of the further and better affidavit hereunder for the sake of emphasis; “10. That the defendant’s staff scrutinized the forms that I filled and confirmed from the enclosed birth certificate that the information I supplied was true and correct that the defendant did not take action to disqualify me. 11. That the deposition in paragraph 2 (f) of the defendant’s counter affidavit is untrue and clearly a manufactured falsehood to cover its evil tracks perpetrated against me. 12. That even the document exhibited to paragraph 2 (e) as Exhibit B to the counter affidavit is a Register for the “Renewal of LICENCES” and not the original form that I filled for renewal of my licence as a Nurse. The defendant is put on notice and demanded to produce the said original form for issuance of licence”. The trial Court held thus at page 147-148 of the printed record of appeal: – “The defendant also stated in paragraph 2 (f) of the counter affidavit, that the licence issued to 1st plaintiff by the defendant which bears 22nd February 1981 as his date of birth was issued in error without cross verification of the information with other documents in the 1st plaintiff’s file. They failed to exhibit those other documents in the 1st plaintiff’s file which is believed to be in their custody. By virtue of Section 167 (d) of the Evidence Act, 2011, the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The presumption is that if those other documents/records of the 1st plaintiff were produced before the court by the defendant the allegation that the 1st plaintiff did not submit his birth and educational certificates to the defendant will be unfavourable to the defendant”. On appeal, the court below held thus: “In this present case, both parties supplied the trial court with not only their oral evidence (affidavit evidence) but also documents that support their cases. (See P. 238 of the record). The 1st respondent in order to prove his date of birth as 22nd February, 1981, exhibited his drivers’ licence, birth certificate, Nursing licence and e-mail from Breda Duggah. These documents were well admitted being admissible documents and no objection as to their admissibility was raised either at the trial court or before us”. A perusal of the relevant paragraphs of the affidavits on either side shows there is no basis for calling of oral evidence. Therefore, the court below was right in rejecting the submission of the appellant on a court picking and choosing what evidence to believe and discarding evidence it chose not to believe. I shall quote excerpts of the said decision of the Court of Appeal as follows: – “On the issue of the conflict in affidavit evidence as raised by the appellant concerning the birth date of the 1st respondent generally, the law is clear and it resolve conflicts in respect of material issues in the affidavit of opposing parties… However, there is an exception to the general rule. Where there are documentary as well as oral evidence (affidavit evidence) before the court, the court can suo motu resolve such conflicting evidence by resort to the documentary evidence as the documentary evidence should be used as a hanger from which to assess the oral testimony”. The Court of Appeal in concurring with the findings and holding of the trial court on the issues of facts, held that there were sufficient oral and documentary evidence to resolve the pieces of evidence that preponderated before the trial court. In line with what the two courts below did I would refer to Section 148 (e) of the Evidence Act 2011 which provides for a presumption that the licence issued by the appellant to the 1st respondent bearing a birth date of 22nd February 1981 is genuine. Therefore, the burden of disproving that fact rested on the appellant who should go further than merely laying the blame the appellant who should go further than merely laying the blame on its staff who allegedly did not verify its records before issuing the licence bearing the 1981 date. It is difficult to fault the court below holding that 1st respondent proved his birth date as 22nd February 1981 and not 22nd February 1984. In taking this position, one is mindful of the fact that oral evidence cannot be brought in to vary or alter the clear information stated in the documents referred to in the affidavit as Section 128 (1) of the Evidence Act, 2011 provides. To further elucidate on the point, the appellant had attached a form purportedly filled by the 1st respondent annexed as Exhibit A to the appellant’s counter affidavit which carried the 22nd February, 1984 date. Also appellant exhibited the register of renewal of licences exhibited as Exhibit B. Those averments of the appellant not holding a light to the deposition of the respondents who exhibited application forms with enclosure of birth certificates or sworn declaration of age hence the concurrent findings of facts of two lower courts which findings are credible and presenting no feature on which a justification to disturb the (2012) 16 NWLR (Pt.1327) 583, Sakati v Bako (2015) 14 NWLR (Pt.1480) 531 at 564; Ifeanyichukwu T.I.V. Ltd. v O. C. B. Ltd. (2015) 17 NWLR (Pt.1487) 1 at 28-29; Blessing v FRN (2015) 13 NWLR (Pt.1475) 1 at 33. Another point that needs be noted is on the claim by the appellant that Exhibit H, the letter from St. Luke’s School of Nursing, Wusasa Zaria was not delivered to it is not sustainable in view of its exhibition in the respondents’ further and better affidavit as the St. Luke’s School is not a public institution and a copy of the said letter needs no certification before it is admissible in law in the light of sections 102 and 83 (1) (b) of the Evidence Act. I shall quote excerpts of the Court below judgment as follows: – “This means that the initial breach was committed by the appellant in September, 2010 and continued to the present time that is 30th October, 2014 when the action was initiated. This is a case of continuous breach and according to the affidavit, the picture of a male continued or is still on her certificate of registration till date. Therefore, the action giving rise to this appeal is not statute barred but a continuous breach which can be likened to a case of continuous trespass where this court and the Apex Court have held in a number of cases that where there is a continuous trespass, the action cannot be caught up by the limitation act”. On the third issue of whether the two court’s below were correct in the award of Five Million Naira (N5,000,000.00) as exemplary damages for the infraction done to the respondents based on the facts of this case. The plaintiffs/respondents had sought the reliefs on the damages at paragraphs 22 and 26 (iv) of their main supporting affidavit in the originating summons as follows: – “22. That as a result of the non-verification of my licence, I have lost the job opportunity that I would have got in Ireland”. “26. That because of the error, she cannot use the certificate of Registration to seek for employment elsewhere outside the shore of the Country”. The appellant’s counter to those claims of the respondents are in paragraphs 2 (r) and (s) of the counter affidavit thus: “(r) That the salary of a nurse with less than 10 years’ experience in Nigeria is less than 10 years’ experience in Nigeria is less than N100,000.00 a month”. “(s) That the alleged sum of N2,500,000.00 which the 1st plaintiff agreed to pay is about the salary of a 2 years of a nurse with his years of service”. This court has laid down the guiding principles guiding the award of exemplary damages in the case of CBN v Okojie (2015) 14 NWLR (Pt. 1479) 231 at 261 thus: “Exemplary damages are awarded with the object of punishing the defendant for his conduct in inflicting injury on the plaintiff. They can be made in addition to normal compensatory damages and should be made only: (a) in a case of oppressive, arbitrary or unconstitutional acts by government servants; (b) Where the defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff; and (c) Where expressly authorized by statute”. The Supreme Court went on at pages 263 of the case of CBN v Okojie (supra) as follows: “For exemplary damages to be awarded it need not be specifically claimed, but facts to justify it must be pleaded and proved. Thus once facts in the pleadings support the award of exemplary damages the court should award it since the adverse party is in no way taken by surprise. Furthermore, since rules of court nowhere say that exemplary damages must be specifically claimed, it can be granted if facts are pleaded and evidence led to justify it”. From the totality of the facts in this case, clearly the action of the appellant rendered the 2nd respondent at the short end of the stick with her not being able to work for over 8 years in spite of her training and experience, therefore nothing justifies any interference to the concurrent findings and conclusion of the two courts below on the award of damages which appellant is even lucky being on the low side in my humble view. The questions answered in favour of the respondents the option open to the court is to affirm the decision of the Court below which upheld the decision of the trial court. The appeal lacks merit and I dismiss it. I award the sum of N1,000,000.00 to each of the Respondents to be paid by the Appellant. Appeal Dismissed.

SC.818/2016