Number of issues for determination doesn‘t determine appeal success

So much of the facts as are necessary and as can be gleaned from the Statement of Claim are that the Plaintiff went to the hospital of the 2nd Defendant for the purpose of having an HIV/AIDS test conducted on him and his estranged wife. The test was carried out by the 1st Defendant Dr. […]

So much of the facts as are necessary and as can be gleaned from the Statement of Claim are that the Plaintiff went to the hospital of the 2nd Defendant for the purpose of having an HIV/AIDS test conducted on him and his estranged wife. The test was carried out by the 1st Defendant Dr. Selo-Ojemen a medical doctor employed by the 2nd Defendant’s hospital who informed the Plaintiff that he was H.I.V. positive. He was however advised to come back to the 2nd Defendant’s hospital in three months time to have this test confirmed. Plaintiff then proceeded to another hospital, St. Camillus Hospital Uromi Edo State for another test which in fact revealed that he was H.I.V.negative. Meanwhile the confirmatory test after three months at the 2nd Defendant’s hospital revealed that Plaintiff was in fact H.I.V. negative.
It was the allegation of the Plaintiff that the doctor/patient relationship which existed between the Plaintiff and the Defendants had been breached by the Defendants who had disclosed the result of the first test which showed that the Plaintiff was H.I.V. positive to the Plaintiffs wife and a prophet which prophet had attempted and failed to capitalize on Plaintiff’s medical condition to extort money from him. It was the contention of the Plaintiff that the 1st Defendant’s Dr. Selo-Ojemen falsely and maliciously wrote and/or published information about the Plaintiff imputing H.I.V. AIDS to the Plaintiff which caused the Plaintiff incalculable damage and injury to his reputation and to his family and professional life. Plaintiff relied in part on RES IPSA LOQUITUR in that according to him, the 2nd Defendant’s hospital had failed in its duty to:
1)    Provide competent staff
2)    Provide adequate and efficient plant and equipment and
3)    Provide a safe, efficient and effective system of work and supervision in order to discharge the duty of care owed to the Plaintiff as a patient.
The 1st Defendant doctor in so acting was an agent, servant and/or employee of the Otibhor Okhae Teaching Hospital Irrua sued as the 2nd Defendant in this action and the 1st Defendant at all material times acted in the course of the 2nd Defendant’s business. Plaintiff therefore contended that the 2nd Defendant is vicariously liable for all the tortuous acts and omissions of the 1st Defendant which act and omissions are a treacherous grand design to perpetuate fraud on the Plaintiff hence the Plaintiff’s claims against the Defendants jointly and severally. The Defendants filed a memorandum of appearance and by Motion on Notice dated the 21st June, 2001 and brought pursuant to Order 8 Rules 1 and 2 of the High Court (Civil Procedure) Rules 1988 of Bendel State as applicable in Edo State and the inherent jurisdiction of Court, prayed for “An Order striking out this suit on the ground that the court lacks the jurisdiction to entertain same.”
 PARTICULARS:  
“The suit is not maintainable against the 2nd Defendant in that the 2nd Defendant being a Federal Government Agency, cannot be sued in this Honourable Court AND for such further order or orders as this Honourable Court may deem fit to make in the circumstance.”
It is instructive to reproduce paragraphs 3, 4 and 5 of the Affidavit in Support of this motion which read as follows:
3.    That I know as a fact that the 2nd Defendant/Applicant was created by an Act of the National Assembly.
4.    That being a creation of the National Assembly it is a Federal Government Agency supervised by the Federal Ministry of Health and as such an action of this nature is not maintainable against it in this court.
5.    That the 1st Defendant is an agent of the 2nd Defendant.
There is no indication from the records that the Plaintiff filed a counter affidavit to this motion. After arguments of counsel on both sides, the learned trial Judge Amaize J. in a considered ruling delivered on the 13th May, 2002 upheld the submission of the Defendants’ Counsel and struck out the Plaintiff’s suit for want of jurisdiction on the part of the court.
Aggrieved by this ruling, the Plaintiff (hereinafter referred to as “the Appellant”) appealed to the  Court of Appeal sitting in Benin City which by its judgment delivered on the 27th February, 2004 dismissed the appeal.  This is a further appeal to the Supreme Court by a Notice of Appeal dated the 26th March, 2004.
It consists of five Grounds from which the Appellant formulatedthe following three issues in his Brief of Argument dated 5th July, 2004 and filed same day for determination by this court.
Issue (i)     Was the Court of Appeal right in holding that the 2nd  Respondent was a Federal Government Agency based on the finding that Appellant did not contradict 2nd Respondent’s affidavit evidence to that effect? (Ground 1).
Issue (ii)    Was the Court of Appeal right in failing to interpret and apply the proviso to paragraphs (p), (q) and (r) of S. 251 of the 1999 Constitution to the facts of this case?
(Grounds 2, 3 and 4).
Issue (iii)    Was the Court of Appeal right     in upholding the ruling of the Trial Court striking out Appellant’s claim for lack of jurisdiction in the State High Court? (Ground 5).
For their part the Respondents distilled the following sole issue for determination by this Court in paragraph 3 of their Brief of Argument dated 26th  May, 2006, filed on the 28th June, 2004 but deemed properly filed on the 24th January, 2007 thus –
“Whether the lower court was right in holding that in view of S. 251 (1) (p)r (q) and (r) of the 1999 Constitution of the Federal Republic of Nigeria, the trial Court lacked jurisdiction to entertain the suit.
I will and have therefore adopted the sole issue formulated by the Respondents in their Brief of Argument in determining this appeal. For the avoidance of doubt that sole issue is “Whether the lower court was right in holding that in view of S. 251 (1) (p), (q), and (r) of the 1999 Constitution of the Federal Republic of Nigeria the trial court lacked the jurisdiction to entertain the Suit.”
Even at the risk of sounding repetitive, this sole issue is all encompassing covering all the three issues formulated by the Appellant in his Brief of Argument. It is at this juncture that it becomes necessary to reproduce the provisions of Section 251 (1) (p), (q) and (r):-
Section 251 (1) “Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –
(p)    the administration or the management and control of the Federal Government  or any of its agencies;
(q)    Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r)    any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies and …    
Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this sub-section shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”
The Respondents submitted and the Court below that the Appellant’s claim fell within the purview of Section 251 (1) (p). This sub-section of Section 251 (1) it will be recollected vests the exercise of exclusive jurisdiction on the Federal High Court on matters pertaining to the administration or the management and control of the Federal Government or any of its agencies. Appellant has submitted that the onus is on the 2nd Respondent to prove that it is indeed an agency of the Federal Government as the issue of the status of the 2nd Respondent in this Suit is identical with the issue of jurisdiction. For its part the 2nd Respondent filed an affidavit in support of the motion deposing to the fact that it is a Federal Government Agency.
“It is an elementally principle of law that facts contained in an affidavit form part of documentary evidence before the court. Where an affidavit is filed deposing to certain facts and the other party does not file a counter affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed”
The question  having  now  been  settled   that  the 2nd Respondent Otibhor Okhae Teaching Hospital Irrua is an agency of the Federal Government, the next relevant question is whether the Appellant’s claim relates to the administration or management and control of the 2nd Respondent.
Paragraph 25 of the Statement of Claim is a claim in aggravated and/or exemplary damages for defamation, negligence and breach of Doctor/Patient Confidence which undoubtedly relates to the administration or management of the Otibhor Okhae Teaching Hospital, Irrua sued as the 2nd Defendant in the trial court and is 2nd Respondent in this appeal and in the lower Court. The effect of paragraphs (p), (q) and (r) of Section 251 (1) of the 1999 Constitution is to vest exclusive jurisdiction on the Federal High Court over all civil causes and matters in which the Federal Government or any of its agencies is a party. See NEPA V. EDEGBERO (2002) 103 LRCN 2280 at 2281 – 2282. The proviso to section 251 (1) of the 1999 Constitution does not in any way detract from the exclusive jurisdiction conferred on the Federal High Court by virtue of Section 251 (1) (p), (q) and (r). Consequently the proviso cannot apply.  From the foregoing, the sole issue for determination must be resolved in favour of the Respondents against the Appellant and it is hereby so resolved. The Appeal lacks merit and is hereby dismissed. The judgment of the Court of Appeal Benin Division delivered on the 27th February, 2004 upholding the ruling of Amaize J. of the Ekpoma High Court, Edo State delivered on the13th May, 2002 is hereby affirmed. Parties are however to bear their own costs.
Representation
Chief Michael Inegbedion, Esq, for the Appellant
E. 1. Esene, Esq., for the Respondents