NURSING AND MIDWIFERY COUNCIL OF NIGERIA V PATRICK OGU & ANOR

APPEAL NO: SC.818/2016
LEGALPEDIA ELECTRONIC CITATION: LER[2019]SC.818/2016

AREAS OF LAW:
Appeal, Court, Damages, Law Of Evidence, Practice And Procedure
SUMMARY OF FACT:
The Plaintiffs/Respondents instituted an action against the Defendant/Appellant on grounds that the Appellant refused to verify the 1st Respondent’s practicing licence as a Nurse because, according to the Appellant, the 1st Respondent falsified his date of birth. It was alleged that the certificate issued by the Appellant to the 2nd Respondent contained the photograph of a male person that is different from the 2nd Respondent. The Respondents requested the Appellant to change the certificate issued to the 2nd Respondent by issuing the right certificate but it omitted, neglected and/or refused to do so. Upon the refusal of the Appellant to verify the licence of the 1st Respondent and to change the certificate of the 2nd Respondent, the Respondents approached the Federal High Court seeking the reliefs contained on the face of the Originating Summons. The trial court granted the reliefs claimed by the Respondents. Dissatisfied, the Appellant appealed to the Court of Appeal which also affirmed the decision of the trial court. Further dissatisfied with the lower court’s decision, the Appellant has appealed to this court.
HELD:
Appeal Dismissed
ISSUES FOR DETERMINATION:
 Whether the facts and circumstances of this case are such that this Honourable Court will interfere with it long held judicial position that the Supreme Court will not disturb the concurrent findings of facts of two (2) lower courts.

 Whether the Court of Appeal did not consider the principles needed for the ward of damages.
RATIONES:
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
AFFIDAVIT EVIDENCE- MODE OF RESOLUTION OF TWO CONFLICTING AFFIDAVIT EVIDENCE
“It is indeed right that where there are material conflicts in the affidavit evidence between that of the 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) 9-10azsssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss SC (Reprint) 1.” PER M. U. PETER-ODILI, J.S.C.
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
AFFIDAVIT EVIDENCE- WHETHER ORAL EVIDENCE CAN BE USED TO VARY DOCUMENTARY EVIDENCE
“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.” PER M. U. PETER-ODILI, J.S.C.
DAMAGES, PRACTICE AND PROCEDURE
EXEMPLARY DAMAGES – GUIDING PRINCIPLES FOR THE AWARD OF EXEMPLARY DAMAGES
“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 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 CBN v Okojie (supra) as follows:
For exemplary damages to be award 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.”
– PER M. U. PETER-ODILI, J.S.C.

STATUTES REFERRED TO:
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Evidence Act, 2011
Nursing and Midwifery Registration Act, Cap 143 Laws of the Federation of Nigeria, 2004