Negligence is failure to take reasonable care (3)

IN THE COURT OF APPEAL 

IN THE OWERRI JUDICIAL DIVISION   

HOLDEN AT OWERRI

ON FRIDAY THE 30TH DAY OF OCTOBER, 2014

BEFORE THEIR LORDSHIPS:

RAPHAEL CHIKWE AGBO       JUSTICE, COURT OF APPEAL

PETER O. IGE                              JUSTICE, COURT OF APPEAL

FREDERICK O. OHO                 JUSTICE, COURT OF APPEAL

CA/OW/160/2010

BETWEEN

FIRST BANK (NIG) PLC ——————-          APPELLANT  

AND 

DR. ARINZE MAGNUS ANYAGHAM           ——————     RESPONDENT

For an action in negligence to succeed the plaintiff must establish three essential ingredients, to with; 1. The existence of a duty to take care owed to the complainant by the defendant; 2. The failure to attain the standard of care prescribed by law;

3.Damages suffered by the plaintiff or the complainant which is casually connected with the breach of duty to take care. So held the Court of Appeal, Holden at Owerri in a unanimous leading judgment delivered by his lordship,  FREDERICK O. OHO (JCA) his learned brothers PETER O. IGE and RAPHAEL CHIKWE AGBO (JJCA), concurring while dismissing the appeal.

The Appellant was represented by E. O. Igboko Esq, while the Respondent was represented by Emeka Ozoani Esq., with G.W. Manufor, Esq., I.M. Anyanwu (Mrs), I.J. Nwaiwu and Mrs. F.I. Ekeh, of counsel for the Respondent.

The facts are as contained in the body of the judgment.  

    Learned Appellant’s counsel began by contending that the payment of money into the WCOS account without more is not conclusive proof that respondent was qualified to sit for the examinations of WCOS. Counsel further contended that Respondent did not prove that the WCOS received his forms and the payment receipt that he mailed to them. He emphasized  that it is after such a proof is established that the issue as to whether he was qualified for the exams and be eligible to be shortlisted will arise. Counsel further contended that the Exhibits ‘C’ and ‘C1’ were evidence showing that the Respondent sent his forms to the WCOS, but that they were mere documents issued to the Respondent at the time of dispatch of forms and not proof of delivery thereof. He added that none of these Exhibits show that the WCOS received any of these forms. 

    According to learned counsel, the Respondent is entitled to a proof of delivery of any documents sent by him but has not shown these to court. Counsel said that the inability of Respondent to put these before the trial court was fatal to his case.

      It was learned counsel’s further contention, that by Exhibit ‘J’, it was never in doubt that the WCOS received the Respondent’s registration forms and was duly informed that there was a problem with his phone number and other sundry issues. Learned counsel submitted that the reason for rejection of Respondent’s forms by the WCOS after its due receipt was stated on the face of the notification form- Exhibit ‘J’ . Counsel argued that the Exhibit ‘J’ which is dated 21-6-2006 was issued in respect of the October, 2006 Examinations and not Examinations of April, 2006. The question posed by counsel in this connection, was; ‘Whether the WCOS received the April Examination registration forms or not?’’ 

    And learned counsel’s answer was rendered in the negative, since according to him, the Respondent did not place before court a proof of delivery of the forms sent in respect of the April Exams. It was the further contention of learned counsel that a close look at the Exhibits ‘C’ and ‘C1’ which are EMS speed post receipts for sending the registration forms to WCOS, did not cover the sending of the registration forms for the April examinations of the WCOS as they are clearly dated 2-6-2006 by 12:20am (sic).

      It was learned counsel’s contention that the only inference that can be drawn from the foregoing, is that the Exhibits were in respect of the October Examinations and no more. In addition, counsel said, that the Respondent having stated in a correspondence in Exhibit ‘F’ addressed to the Chief Medical Director, Federal Medical Centre, Owerri, that he posted the forms in respect of the April, 2006 Examinations, at the main post office Douglas Road, Owerri on 26-1-2006, the only inference that can be drawn is that Respondent’s registration forms for the April 2006 Examination were lost in transit and never got to the WCOS for necessary documentation. 

    It was learned counsel’s contention that Respondent not only failed to send his registration forms as required, but that he also failed to send proof that he paid for the examinations, hence his failure to be shortlisted for the examination. Counsel concluded that, that was what was responsible for the non-short listing of Respondent’s name for the examination.

    On the part of the Respondent, in arguing the issues raised on the body of the substantive Appeal, learned counsel drew attention of court to the Respondent’s pleadings at the trial court as well as to his Written Statement on Oath. He specifically drew attention to paragraph 2 of Respondent’s Amended Statement of claim where the Respondent averred that he paid the sum of N14, 000. 00 through the Douglas Road, Owerri branch of the Appellant into the accounts of the WCOS to enable him register for the WCOS conducted primary fellowship exams slated for April, 2006. Counsel said that his material fact was also given in the Respondent’s evidence on oath before court, and that under cross examination Respondent still maintained that he was not short-listed because his payment was not received and that when he inquired he was told that he could use the payment he made to apply for the next exam.

    Respondent having established the facts of negligence, counsel urged the court to dismiss the Appeal. This action is no doubt one that is founded on the tort of negligence.

In considering the merit and demerit of this Appeal, the court will have to examine and be satisfied as to whether the pleading and testimony of the Respondent herein, at the lower court established a case of actionable negligence against the Appellant. Of course there are usually two sides to matters of this nature. The flip side is that the court will also have to be satisfied that the pleading and testimony of the Appellant at the lower court established that in handling the activities which gave rise to this action, the    Appellant was not negligent. It is the law that negligence is the failure to take reasonable care where there is a duty and it is attributable to a person whose failure to take reasonable care has resulted in damage to another.

    All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care is deduced from. Perhaps, the question to address here is whether the Respondent herein did establish at the court below, the negligence of the Appellant in this case such as would entitle respondent to the award of damages? It would be recalled that some of the proved facts from which the lower court drew its inferences about the negligence of the Appellant are the existence of the Exhibits ‘’H’’ and 

    ‘’L’’ in this case. While evaluating on the issue before the lower court, at page 94 lines 14-21, the learned trial judge held as follows: 

‘’There is proof in exhibit H that the Plaintiff paid in the sum of N14, 000.00 into account No. 3162010038711 of West African College of Surgeons in the defendant bank but there is no proof that payment is reflected in exhibit ‘’L’’. the result is the exclusion of the plaintiff from the examination and the failure of the plaintiff in the examination. In my view, the omission of the plaintiff’s name on exhibit ‘’L’’ is indicative of negligence in the absence of any explanation to the contrary and none has been proffered’’.

    The lower court rightly observed that in so far as the name of the Respondent was visibly missing from Exhibit ‘’L’’, it would have been, difficult if not impossible for the Respondent’s name to have been listed for the exams by WCOS. According to learned trial judge, if the College had examined the exhibit ‘’L’’, which is its statement of account, for the period 20-1-2006 to 30-1-2006, they would have no entry showing that a person of the Respondent’s name applied and paid for his primary fellowship exams. The court particularly took note of an entry made on the said exhibit ‘’L’’, indicating a payment made on the 25-1-2006 but which had no name, and queried how the College could possibly have associated that payment by a ‘’mystery man’’ to the Respondent?

     It is of course elementary or rather commonsensical to observe in the circumstances of this case that payment into a designated account such as the one provided to the general members of the Nigerian Medical profession which had the names of other Medical Directors completely written out but clearly omitting that of the respondent who paid in itself shows negligence on the part of Appellant. I am in agreement with the learned trial judge in his findings at page 94 lines 14-21 of the printed records of Appeal where he concluded that by omitting to include the name of the Respondent in exhibit ‘’L’’ is indicative of negligence on the part of the Appellant.

    On the issue of award of damages, it would be sadly recalled that upon the Respondent’s failure to write the WCOS examination, the Respondent’s appointment with the Federal Medical Center was terminated in these hard times of acute unemployment and economic stagnation of the nation. Of course, the Appellant cannot be let off the hook without the need for some recompense in favour of the Respondent who became a victim of the Appellant’s negligence in the slipshod handling of the entire matter and whose failure or refusal to appropriately post payment made by Respondent has led to his loss of job. Arising from this position, I simply cannot find analysis, this appeal falls and it is accordingly dismissed. The judgment of N. Okoronkwo J., of the 1st day of February, 2010, is hereby affirmed. Cost of N50, 000.00 in favour of Respondent.