Negligence is failure to take reasonable care (2)

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.  

    It was not until the 3rd day of November, 2006 that the Appellant now wrote to the WCOS formally acknowledging that the Respondent paid the examination fee. The Results of the examination were subsequently released and the Respondent did not pass. The Respondent’s employer, the Federal Medical Centre on account of the conditions of service under which the Respondent was engaged, terminated his employment. At the lower court, the Respondent claimed special damages of N49, 982.00; the refund of the sum of N14, 000.00 and 200, 00, 000, 000.00 as general damages. The lower court found the Appellant liable and awarded N7, 000, 000.00 as general.

    On the part of the Appellant, there was no denial that the Respondent paid the said sum of N14, 000.00 into the account of the WCOS on the 25-1-2006. But that as a Banking institution, it was never any part of its business to know the purpose for which the payment was made or the practices and procedure of the WCOS and for which reason it has required payments from groups or persons. That the Respondent sometime ago approached the Appellant and asked for a duplicate copy of the deposit slip because he lost the original and needed a copy to satisfy the WCOS that he paid for the Examination. 

    That the Respondent later asked for a refund of the sum of N14, 000.00 paid into the coffers of the WCOS, but that he was duly informed that that was not possible as the money was already lying in the account of the WCOS and could no longer be tempered with without the owners of the coffers. In contending that the misfortunes of the Respondent has not been as a result of the negligence of the Appellant, it was argued on behalf of the Appellant that the Respondent showed no proof of having dispatched the deposit slip it obtained from the Appellant together with his registration form to the WCOS, in addition to other acts of short-comings on the part of the Respondent.

    Two (2) issues arose for determination under the Notice of Preliminary Objection filed by learned Respondent’s counsel. The one challenges the jurisdiction of court for reason of alleged failure to pay prescribed filing fees in respect of the original Notice of Appeal filed on 25-03-2010, while the other challenges the issue one (1) as formulated by learned Appellant’s counsel on the ground that the issue does not relate to or flow from the ground one of the further Amended Notice of Appeal.

    In arguing the first issue, learned Respondent’s counsel drew attention to the original Notice of Appeal filed on the 25-3-2010 and contended that there was nothing to show that the Requisite filing fees was paid as mandatorily provided for by Order 12 Rules 1 of the Court of Appeal Rules 2007. The effect of this, counsel further contended is that this court is divested of the jurisdiction to entertain this appeal, since the Notice of Appeal by which the Appeal was commenced is incompetent and incurably defective. Counsel referred for support to the cases of Akambi v. Alao (1989) 3 NWLR (pt. 118) 137; Kalu v. Odili (1992) 5 NWLR (pt.240) 130; Ukpabio v. N.F.V.C.B (2008) 9 NWLR (pt.1092) 219 and Onwugbufor v. Okoye (1996) 1 NWLR (pt. 424) 252. On account of these, learned Respondent’s counsel urged the court to strike out this appeal as the court is divested of its jurisdiction to entertain it.

    In response, learned Appellant’s counsel spoke generally about what a typical Notice of Appeal should physically display in one of its pages concerning the question of payment of filing fees. Counsel drew court’s attention to pages 96 to 98 of the Records of Appeal which has the original Notice of Appeal showing what counsel referred to as; ‘Federal and State’ assessments indicating that the Appellant paid all the fees assessed.

    The position at law is that when the requisite filing fees have not been paid pursuant to the filing of a court process, the court has no jurisdiction to look at or to take action on the process and the matter ends there. Payment of the requisite filing fees is a pre-condition to the validity of any process filed in court. Unless the pre-condition is satisfied, the court will lack the jurisdiction to entertain the process, the prescribed filing fees of which, has not been paid. In the instant case, all there is to show at pages 96 to 98 of the records of Appeal, showing the original Notice of Appeal complained about, is a display at the bottom of page 98 of the court Registrar’s endorsements showing the receipt numbers evidencing payment, together with the date of filing and the court’s stamp bearing the same date. 

   One means acceptable to the courts of showing that requisite fees have been paid on a process, apart from tendering the receipt of payment, is the usual practice for the receipt number evidencing payment to be reflected at the bottom of the (first original of the) document, together with the date of filing and or the court’s stamp bearing such date. See the case of Nwani v Bakari (2005) All FWLR (pt. 281) 1803. On account of the foregoing, I simply cannot in all seriousness find myself agreeing with learned Respondent’s counsel that the Appellant did not pay the requisite filing fees on the original Notice of Appeal dated 25-3-2010. Objection on this issue fails and is accordingly dismissed.

    In respect of the second issue, in which Respondent’s counsel had complained about the issue One (1) as formulated but which is stated not to have been distilled from the Ground one of the further Amended notice of Appeal, the proper cause of action will be to set out the issue one side by side the Ground one and closely examine them to see whether the complaints of learned Respondent’s counsel is accurate or not. The consequence where this is found to be true will be to strike out the said issue formulated, and regard the ground of Appeal as abandoned. See the case of Ngilari v. Mothercat Ltd (1999) 13 NWLR (pt. 636) 626; see also Iyaji v. Eyigebe (1987) 3 NWLR (pt.61) 523, Henry Odeh v F.R.N. (2008) 13 NWLR (pt.11030 1.

         Ground One ‘’The trial court erred in when it held that the Appellant was negligent in that Respondent not taking his April Exam of West African College of Surgeons was as a result of the non-remittance of his payment to the College by the Appellant’’

                 Issue One ‘’Whether from the totality of evidence adduced and Exhibits the payment of money into WCOS Account without more is conclusive proof that the respondent was qualified to sit for the Examination’’.

    By closely scrutinizing the issue one as set out above the Ground of Appeal, it is glaring that the issue one is formulated completely outside the Ground one. The one talks about Negligence in the remittance of payment for an exam, while the other talks of whether the payment of monies into a given account amounts to conclusive proof of a person’s qualification to sit for an examination. Without further ado, I hereby find and do hold that issue one, in line with the objection of learned respondent’s counsel is not formulated from the Ground one of the mended notice of Appeal dated 12-2-2013 and filed 15-2-2013, but deemed duly filed and served on 15-1-2014. To this end the issue one is discountenanced together with the arguments advanced there under. The sum total of this situation is that Ground one is deemed abandoned.

    It would be recalled that the Appellant’s issue one has been dismissed. I have had to take a very careful look at the remaining issues raised by learned Appellant’s counsel in this Appeal. Issues are expected to be framed properly and are meant to reflect graphically the challenges posed by and/or encountered against the judgment sought to be up-turned on appeal. They are therefore, expected to be accurately worded so as to eschew confusion and the tendency to sell the impression that they are at variation in some material particular with the Grounds of Appeal. On this score, I have therefore decided to re-formulate the issues and on the basis of which this Appeal shall be determined. Usually, the overriding consideration by so doing is to ensure that the issues formulated lead to a proper determination of the dispute or grievance between the parties. See the case of Fabiyi v Adeniyi (2000) 4 NWLR (pt. 1055) 551. See also Sha v. Kwam (2000) 8 NWLR (pt. 670) 685 on account of this position.

Issue one ‘’Whether the Respondent’s failure to sit for the April Exams was the result of the non-remittance of his exam fees by the Appellant’’.

    Issue two ‘’Whether the respondent established a case of negligence against the Appellant as to entitle him to the damages awarded by the Trial High Court’’.