WHEN THE DEFENCE OF VOLENTI NON-FIT INJURIA WILL AVAIL A PARTY

CASE TITLE: DAKWAK v. JOS SOUTH LG COUNCIL (2021) LPELR-55143(CA)

JUDGMENT DATE: 23RD JULY, 2021

PRACTICE AREA: TORT.

LEAD JUDGMENT: ITA GEORGE MBABA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Tort of Negligence.

FACTS

This appeal is against the decision of the High Court of Plateau State.

The case of the Appellant as Plaintiff at the trial Court was that she went to the Respondent’s Primary Health Care Centre, where she registered for ante-natal to deliver her baby. The Primary Health Care Centre was manned by Nurses/Midwives, who always attended to Appellant at each session of the Ante-natal visits. There was no Medical Doctor attached to the clinic (Health Centre) and the Appellant was aware of this. Appellant had scans of the pregnancy at a Diagnostic Centre and on the advice of the Primary Health Care Centre Nurses, and she was assured her baby was okay. She went through the normal pre-labour sessions at the time of delivery, but the birth of the child did not come out the normal way, as the umbilical cord came out first, making the birth of the child difficult, she was referred by the Nurses/Midwives to the Military Hospital and was taken there by a Nurse of the Primary Health Care Centre, but the doctors at the Military Hospital declined to take the Appellant. Another State Hospital rejected her. She was finally taken to Bingham University Hospital which attended to Appellant and delivered her of a dead baby. Appellant passed through much pains and trauma before the delivery.

Appellant blamed the death of her baby on the negligent conduct of the Respondent, for not employing or having a Medical Doctor at the clinic, and for not providing required medical equipment to help deliver her of her baby. She opined that if a Medical Doctor was there at the delivery, upon the coming out of the umbilical cord first, the doctor would have cut her vagina to facilitate the delivery or would have opened her up, by caesarean section to remove the baby hence action was filed against the Respondent.

The Defendant filed no defence and did not defend the suit. The plaintiff tendered 8 documents in support of her case and the defendant was foreclosed, having failed to file defence or to appear in Court.

The trial Court, in its judgment, dismissed the suit on the ground that the Appellant failed to prove the essential ingredients of the claim of negligence against the Respondent.

Aggrieved by the decision of the trial Court, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The appeal was determined on the following issue viz:

“Was the trial Court right to dismiss the case of the Appellant saying that she did not establish the ingredients of negligence, even when the Respondent did not defend the case and did not challenge the evidence adduced by the Appellant?”

DECISION/HELD

On the whole, the Court of Appeal dismissed the appeal for lacking in merit.

RATIOS:

• TORT – NEGLIGENCE: Essential elements a plaintiff must prove to succeed in an action for negligence
• TORT – NEGLIGENCE: Position of the law on the tort of negligence
• TORT – VOLENTI NON-FIT INJURIA: When the the defence of volenti non fit injuria will avail a party
• EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF: Burden on the plaintiff to lead cogent and credible evidence to prove his claim/case even when the Defendant fails to defend the suit