CORAM

---

S. U. ONU JUSTICE, SUPREME COURT

A. I. KASTINA-ALU JUSTICE, SUPREME COURT

AND N. TOBI JUSTICE, SUPREME COURT

G. A. OGUNTADE JUSTICE SUPREME COURT

I F. OGBUAGU JUSTICE, SUPREME COURT

---

PARTIES

---

MISS FELICIA OSAGIEDE OJO

APPELLANTS 

---

DR. GHARORO

UNIVERSITY OF BENIN TEACHING HOSPITAL MANAGEMENT BOARD

DR. S.A. EJIDE

RESPONDENTS 

---

AREA(S) OF LAW

---

NEGLIGENCE – DOCTRINE OF RES IPSA LOQUITUR- HOW PROVED?

 

HEARSAY- WHAT CONSTITUTES?

 

 

---

SUMMARY OF FACTS

The appellant was a patient with the 2nd respondent with the 1st and 3rd respondent as her doctors qua surgeons who performed operations on her. She claimed that they negligently left a broken needle in her tummy and sued. The respondents claimed they took all precautions to prevent the incident from happening to no avail. Her suit was dismissed at the trial court and affirmed at the Court of Appeal. It is against the decisions of the lower courts that she has not appealed to the Supreme Court.

 

 

---

HELD

---

Appeal dismissed.

 

 

---

ISSUES

---

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.

 

 

---

RATIONES DECIDENDI

---

HEARSAY EVIDENCE

---

 

“Where a document, by its contents, conveys hearsay evidence then the parol or oral evidence based on that document will definitely or invariably be hearsay. The reverse position is also correct and it is that where a document, by its contents, does not convey hearsay evidence, then the parol or oral evidence based on it will not be hearsay evidence, if the witness has an intimate relationship with the document and gives evidence of that relationship”. (Per Niki Tobi JSC)

 

 

---

DOCTRINE OF RES IPSA LOQUITUR

---

 

The doctrine of res ipsa loquitur is premised or predicated on the mere fact of the event happening, which is based on two rebuttable presumptions and I repeat two rebuttable presumptions, viz: (1) That the event happened as a result of a duty of care somebody owes his neighbour, (b) And that somebody is the defendant”. (Per Niki Tobi JSC)

 

 

---

APPLICATION OF THE DOCTRINE OF RES IPSA LOQUITUR

---

 

“……In its very nature, the doctrine can only apply to negligence liability. In so far as nuisance rests on negligence, it can apply to nuisance also. The doctrine applies

(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. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition:

(3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant’s negligence must be determined on that evidence.” (Per Oguntade JSC quoting with approval the opinion of Clerk and Lindsell on Torts, 13th Edition, paragraphs 966 and 967 at pp. 568 and 569)

 

 

---

CASES CITED

---

1. Hughston V. Jost (1943) 1 DLR 402

2. Fish V. Kapur (1948) 2 All 4 ER 176

3. Igbokwe V. University College Hospital Board of Management,

4. Roe V. Ministry of Health (1954) 2 QB 66; (1954) 2 All ER 131

5. Marris V. Winsbury-Whyte (1937) 4 All ER 494

6. Mahan V. Osborne (1939) 2 KB 14; (1939) 1 All ER 535

7. First Bank of Nigeria Plc V. Associated Motors Company (Nigeria) Limited (1998) 10 NWLR (Pt. 570) 441 at 474

8. Udo V. Eshiet (1994) 8 NWLR (Pt. 363) 483

 

 

---

STATUTES REFERRED TO

---

---

CLICK HERE TO READ FULL JUDGMENT