⦿ CASE SUMMARY OF:
Dr. Rom. Okekearu v. Danjuma Tanko (2002) – SC
– General Damages;
Dr. Rom. Okekearu
(2002) 15 NWLR (Pt.791) 657;
(2002) 9 10 S.C 101;
⦿ LEAD JUDGEMENT DELIVERED BY:
A. I. Katsina-Alu, J.S.C
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Nnaemeke Ngige, Esq.;
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The plaintiff (now Respondent) by his 18 paragraph amended statement of claim averred that on or about August 1991, in the course of removing some zinc from his mother’s residence, he injured his left centre finger. He said the wound was not deep. Notwithstanding, the plaintiff’s neighbours took him to the defendant’s (now, Appellant) clinic. The defendant without due care and skill negligently amputated that finger, an exercise that permanently disfigured and incapacitated the plaintiff in handling objects. The plaintiff further averred that the defendant refused to surrender the amputated part of the affected finger. He said he reported the matter to the police at Nyanya police station.
The defendant, Dr. Rom. Okekearu, denied the claim. In a 22 paragraph amended statement of defence, he averred that the plaintiff sustained an injury whilst he and other boys were carrying a poultry pen which fell and crushed the plaintiff’s middle finger. He averred further that when the plaintiff accompanied by neighbours was brought to his clinic, he had the middle finger tied with a piece of cloth which was badly stained with blood. On removal of the cloth blood gushed out of the finger and he discovered that the distal portion of the finger was almost completely severed from the rest of the finger except for a strip of skin which held same together. The bone in the said distal part was broken and the reasonable medical option open to him was to trim off the said strip of skin and stitch the wound.
The defendant denied negligence. He averred that there was no need for an x-ray of the said finger, the same having been traumatically amputated partially at the time of the injury. Further that the distal part of the plaintiff’s finger was disposed of in accordance with standard medical practice. The defendant counterclaimed for the outstanding medical fees of N125,000.00 and general damages for injurious falsehood. After hearing evidence, Kolajo J., gave judgment in favour of the plaintiff awarding him the sum of N100,000.00 general damages for permanent incapacity, negligence and battery resulting from the amputation of the left centre finger of the plaintiff.
The learned trial Judge dismissed the counterclaim. Aggrieved by the said judgment, the defendant appealed to the Court of Appeal. The Court of Appeal on 24th April, 1997 allowed the appeal in part, reduced the award of N100,000.00 to N50,000.00 being damages for battery only.
Still aggrieved, the defendant has further appealed to this court.
1. Was the Court of Appeal right after holding that the appellant is not liable for negligence, to hold the appellant is liable for battery?
2. Was the Court of Appeal right to have awarded the sum of N50,000.00 when a case of battery was not made out?
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS HELD AGAINST THE APPELLANT; THE COURT OF APPEAL WAS RIGHT FOR HOLDING THE APPELLANT LIABLE FOR BATTERY.
i. I would like to state from the onset that I find no merit whatsoever in the submissions of the defendant under the first issue. First, it has been submitted for the defendant that the act of trimming off the plaintiff’s finger was not an intentional act. So, was the defendant sleep walking when he amputated the plaintiff’s finger? Or did he do it in a state of complete automatism? These have not been pleaded as defences to this action. The law in this regard is settled. An act does not amount to a battery, unless it is done either intentionally or negligently. So, did the defendant intentionally amputate the plaintiff’s finger? There is no question about this. This is brought out more clearly by the evidence of the defendant himself. In his evidence-in-chief, he testified inter alia: “I took Tanko Danjuma inside the theatre. I untied the piece of cloth on his finger. On examination, I found that Tanko Danjuma had a crushed injury. There were jagged lacerations on the affected finger. It was distal 1/3, that is 1/3 up of the left middle finger. There was a fracture compound fracture of the finger. Only the skin and underline tissues held the distal 1/3 to the bottom left middle finger. The finger bled profusely. A head tie was used to tie the hand. Some people later came. I asked for the closest relative of Tanko Danjuma. PW2 came forward. She said she was Tanko’s aunt. I took PW2 inside the theatre. I showed her Tanko’s finger. She asked me to carry on with whatever treatment was necessary. A nurse Victoria Olu Ajadi was with me in the theatre. I trimmed off the affected crushed area. I stopped the bleeding of the finger. I gave local anaesthetics at the base of the finger. I then applied stitches. Nobody held the plaintiff while he was being treated. Only myself, Tanko and a nurse were in the theatre where I treated Tanko. I did not block the view of the plaintiff while he was being treated. I applied iodine guize and bandaged on the finger. Thereafter we left the theatre …”. The evidence of the defendant established beyond argument that he intentionally trimmed off the plaintiff’s finger.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE RESPONDENT.
i. The two courts below have held that a case of battery has been made out against the defendant. This is amply supported by the evidence given at the trial. The amputation of the plaintiff’s finger was an intentional act done without the consent of either the plaintiff or his guardian. I agree with the courts below that the defendant is liable in battery.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
The law allows a man to consent to the use of a reasonable degree of force on his person in certain circumstances recognised as lawful justification, e.g. in lawful games or sports or for a surgical operation. In all these cases consent will be a bar to an action of trespass. – Katsina-Alu, JSC. OKEKEARU v. TANKO (2002)
This court has held in a plethora of cases that when there are concurrent findings of fact by the two courts below, same will not be ordinarily disturbed unless such findings are perverse, or an error of substantive or procedural law was perpetrated. – Katsina-Alu, JSC. OKEKEARU v. TANKO (2002)