IN THE SUPREME COURT OF NIGERIA
ON MONDAY, THE 23RD DAY OF FEBRUARY 1970
ADAMO ALLI .......................................................... PLAINTIFF/RESPONDENT
A.A. OKULAJA ....................................................... DEFENDANT/APPLICANT
BEFORE: Beckley, J.
The plaintiff/respondent brought an action against the defendant/application claiming the sum of £4,205.17s. as damages in respect of personal injuries suffered by the plaintiff/respondent allegedly as a result of the negligence of the defendant/applicant.
The defendant/applicant applied to the court for an order to stay all proceedings in the case until the plaintiff/respondent submitted himself for medical examination by a doctor appointed by the defendant in order to prepare adequately his defence as to quantum of damages.
The plaintiff/respondent refused to be examined by the doctor appointed by the defendant/applicant.
Counsel for the defendant/applicant in support of his submissions relied on Edmeads v. Thames Board Mills Ltd in which the Court of Appeal in England granted a stay in almost similar circumstances
(1) The court has jurisdiction to grant a stay whenever it is just and reasonable so to do, but the court should not grant a stay of an action to do indirectly what it has no jurisdiction to do directly.
(2) There is no direct power in a civil proceedings of this nature to make a direct order for medical examination on a plaintiff at the instance of the defendant. To stretch the unwritten inherent jurisdiction of the court to order a plaintiff to submit to medical examination on behalf of the defendant is going too far. To prevent him from getting access to court, for trying to prevent interference with his person does not appear to be right.
(3) The High Court in Nigeria cannot be bound by a decision of the Court of Appeal of England, this country now being an independent Sovereign State but judgment of an eminent judge would certainly be of the most persuasive authority and would be followed except the court feels otherwise strongly about the ratio decidendi of such decision. The court so felt in this case.
(4) The request to examine the plaintiff in this case was unreasonable, as it would have the effect of importing to the court the power it does not possess, especially when it affects the person of the plaintiff.
From the Edmeads case there appears to have been an element of Volenti ab initio on the part of the plaintiff for in the order for direction for the trial the Master ordered that there should be medical examination of the plaintiff by a doctor on both sides. It is not clear what could have happened if the objection had been raised initially by the plaintiff in that case as it had been in this case. It would be seen that the plaintiff's Solicitor as appeared in the judgment of Lord Justice Denning said they had no objection to the plaintiff being examined by the original doctor for the defendant; they did not object to the principle of the whole exercise.
Cases referred to:
Edmeads v. Thames Board Mills Limited  1 Lloyds Report 221 Part VI
Penn v. Baltimore 1750, 27 E.R. 847; 27 E.R.P. p. 1132;  A.E.R. 99.
Companhia de Mocambique v. The British South Africa Company  2 Q.B. 358
APPLICATION for stay of proceedings
Bentley, for the Defendant/Applicant
Oduwole, for the Plaintiff/Respondent.
Beckley, J.:-In this application the defendant seeks for an order to stay all proceedings in this case until the plaintiff submits himself for examination by a doctor appointed by the defendant. The application is supported by an affidavit of John O. Eduvie, a Law Clerk in the office of Messrs Bentley & Company. The paragraphs read as follows:-
"Paragraph 2: The claim herein is for a total of £4,205.17s.0d. including General Damages of £4,000 in respect of personal injuries suffered by the plaintiff, allegedly, as a result of the negligence of the defendant.
Paragraph 3: A report of a "Visit for Assessment" has been given by Dr A.A. Bailey on 8th day of January, 1969, and a copy sent to the defendant's Solicitors but it is no more than a resume of injuries and does not give any opinion on prognosis.
Paragraph 4: Inter alia, the report does mention post traumatic osteoarthritis.
Paragraph 5: In order to prepare their defence adequately as to quantum the defendant's Solicitors tell me that they consider necessary that the plaintiff who was examined medically by a Doctor appointed by him should be examined by a Doctor appointed on behalf of the defendant not only because of the size of the claim and the nature of the injuries but also in view of the time that had elapsed since the date of the first report."
The other paragraphs of the affidavit, apart from paragraph 13, deposed to the fact that the plaintiff has refused to be examined by the Doctor appointed by the defendant. Paragraph 13 of the affidavit states as follows:-
"I verily believe that the defendant will be prejudiced in his defence unless the reasonable request for medical examination-which would be at his cost in any event is granted."
A counter-affidavit was sworn to by Mr Odulwole, Counsel for the plaintiff/respondent. Paragraphs 6-12 of the counter-affidavit read as follows:-
"Paragraph 6: That on the 8th January, 1969, fourteen months after the accident had occurred, and ten months after the plaintiff had been discharged from the hospital, Dr A.A. Bailey, the Senior Surgical Specialist in charge of the Royal Orthopaedic Hospital, Igbobi, examined the plaintiff and issued a report attached hereto and marked Ex. A & A1.
Paragraph 7: That in my opinion the report is a detailed one.
Paragraph 8: Dr Bailey was assigned by the Royal Orthopaedic Hospital as the Senior Specialist in charge of the hospital to examine the plaintiff and was not specifically appointed by the plaintiff for medical examination. Attached hereunto is the relevant correspondence thereof and marked B & B1.
Paragraph 9: As the applicant has not imputed improper motive in Dr Bailey's examination of the plaintiff or expressed concern over his incompetence, an examination by another doctor is not necessary.
Paragraph 10: The defendant on the order of the court filed his Statement of Defence and in paragraph 5 of the said Statement of Defence puts the plaintiff to strict proof of his injuries.
Paragraph 11: The plaintiff, therefore, intends to prove these injuries by calling Dr Bailey who shall bring to court the Treatment Folder of the plaintiff.
Paragraph 12: Another medical examination of the plaintiff is not necessary as the quantum of damages is entirely the duty of the court to assess."
In paragraph 13, Counsel for the plaintiff avers that the defendant will not in any way be prejudiced in his defence if his request for medical examination of the plaintiff is refused.
Before considering the submission of Counsel for the defendant/applicant and plaintiff/respondent, the following points are relevant to bear in mind:-
(1) The accident which originated these proceedings occurred on 12th November, 1967.
(2) This action was instituted on the 11th of December, 1968.
(3) Filing of the Statement of Claim and Statement of Defence was ordered on 17th February, 1969, and filed respectively on 8.3.69 and 14.7.69.
(4) By the Statement of Defence the defendant is denying liability in respect of all the allegations in the Statement of Claim, except paragraphs 1 and 2 of the Statement of Claim on the age of the plaintiff and his ownership of the Saloon Peugeot Car 404 WAQ 378 involved in this action.
Mr Bentley in support of his submission relied on Edmeades versus Thames Board Mills Limited, 1969, 1 Lloyds Report page 221, Part VI. IN the Edmeades case the plaintiff brought a personal injury action against the defendant employers and the defendants did not contest liability. The only question than was the determination of the quantum of damages. The order for directions for the trial of this issue said that there should be one medial witness on each side. The plaintiff was examined on his own behalf by a Mr Bingold and on behalf of the defendants by Dr Abrahamson. The medical reports were exchanged. The defendants then noticed that the plaintiff's Doctor, Mr Bingold, in his report raised a new complaint altogether which was not in the Statement of Claim. He said that the plaintiff suffered from Osteo-arthritis caused or aggravated by the accident. That complaint had not been made in the Statement of Claim at all and so the defendants' Doctor has not made any investigation about it. It was apparent to the defendants' Solicitors that at the trial, if not before, the plaintiff's advisers would apply to amend the Statement of Claim so as to allege that the plaintiff suffered from Osteo-arthritis as a result of the accident. So the defendants demanded to have the plaintiff examined on their behalf by a Specialist who could deal with Osteo-arthritis. There was exchange of correspondence between the plaintiff's Solicitor and the defendants' Solicitor which resulted in the plaintiff refusing to be examined by another doctor than the one who originally examined him. The defendants suggested a list of six surgeons other than the one who originally examined the plaintiff. The plaintiff's Solicitor replied that they had no objection to plaintiff being examined by the original Doctor for the defendants, Dr Abrahamson, but they were not agreeable to any examination by any of the six new names. The defendants then applied to the Master for the action to be stayed unless the plaintiff submitted to a medical examination by one of these six doctors. The Master refused the application for the stay and made a compromise order under which the plaintiff was not to give evidence of the Osteo-arthritis unless the statement of Claim was amended. The defendants appealed to Mr Justice Milmo who refused the stay of proceedings. He held that the action should go on as it was. The court, he thought, had no jurisdiction to order the plaintiff to be medically examined on behalf of the defendants and it could not do so indirectly by means of a stay. He said it would be almost writing into the White Book the rule that does not exist if a stay were to be ordered in order to compel the plaintiff to submit to a medical examination. The defendants appealed to the Court of Appeal presided over by Lord Denning, Master of Rolls, Lord Justice Davies and Lord Justice Widgery. All the Lord Justices gave judgment. The Master of Rolls, Lord Denning, said, inter alia:-
"In 1949, the Evershed Committee in their Report (par. 342) considered whether the plaintiff should be ordered to submit to a medical examination, and said they thought it was unnecessary. They said it might raise important questions of principle in relation to the liberty of the subject. But a great deal of water has gone underneath the bridge since that time. In the recent report, Lord Justice Winn's Committee on Personal Injuries Litigation, saw in par. 312:-
'We have carefully considered all the objections made to us, including that received from the National Council of Civil Liberties, but we entertain no doubt that every claimant of damages for personal injuries must be bound to submit himself or herself to medical examination of a reasonable character which is reasonably required, subject, of course, to proper safeguard and to the claimant's right to object to any particular doctor. In case of need, we consider that the court must have a power if necessary by legislation to stay the action pending the plaintiff submitting to such an examination."
Continuing his judgment, Lord Justice Denning said:-
"I do not think legislation is necessary. This Court has ample jurisdiction to grant a stay whenever it is just and reasonable so to do. It can, therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause. The question in this case is simply whether the request was reasonable or not.
I think that the request of the defendants was perfectly reasonable. They were faced with a new allegation which had not been made in the statement of claim, an allegation of osteo-arthritis. The defendant sought in all reason to have an opportunity of considering it and being advised upon it. They would need it in order to assess the amount to pay into court so as to dispose of the whole matter without it coming to trial. It might be different if the defendants had suggested one particular name to which the plaintiff could reasonably object. That seems to be the explanation now of Pickett's case. But when six names are suggested and no reasonable objection taken to them, I have no doubt that the defendants ought to have the opportunity of having the plaintiff medically examined so that evidence can be given by one of those doctors. The court can ensure this result by granting a stay unless and until the plaintiff submits himself to such a medical examination.
I would allow the appeal and grant a stay accordingly."
I would now like to refer to some points made in the judgment of Lord Justice Denning. Firstly, he said that the court has ample jurisdiction to grant a stay whenever it is just and reasonable so to do. In regard to this point, there is in my view no doubt that the court has jurisdiction to grant a stay whenever it is just and reasonable so to do, but I am also of the view that the court should not grant a stay of an action to do indirectly what it has no jurisdiction to do directly.
Secondly, Lord Justice Denning said that, "They would need the examination in order to assess the amount to pay into the court so as to dispose of the whole matter without it coming to trial." In this respect, the assessment of the quantum of damages in my view is one entirely for the court to decide. The defendants might in truth and in fact pay some money into court, but the plaintiff is not in any event bound to agree. He could insist that damages paid into the court is meagre and that the court should assess the damages. That point as to the defendants knowing the amount is not a strong point upon which one could make an order to affect the fundamental liberty of a citizen in a civil case.
Thirdly, Lord Justice Denning referred to the Evershed Committee Report. That report is not before me and in that judgment the Lord Justice Denning continued thus..."but a great deal of water has gone underneath the bridge since that time." This may be so, but there should be some amplification of that great deal of water which has gone underneath the bridges since the time of the Evershed Committee Report in 1949.
Lord Justice Davies in his judgment also said:-
"I entirely agree that in the circumstances of this case it is quite unreasonable that the plaintiff should refuse to be examined by one of the six other surgeons or doctors who have been suggested on behalf of the defendants..."
He also allowed the appeal.
Lord Justice Widgery also agreed with Lord Justice Denning. He said in his judgment as follows:-
"I agree. I can see the objections that would be raised if it were sought to give the court power to make a direct order for medical examination with, presumably, power to commit the plaintiff for contempt if he refused. But none of those objections to my mind arise where it is sought to give the plaintiff a right to elect between not going on with his action, or submitting himself to medical examination, especially where his refusal to be examined is based on no reason and will result in the defendants being unable to prepare their defence and will thus result in the court being unable to do justice towards the defendants..."
In the judgment of Lord Justice Widgery he said that he could see objections that would be raised if it were sought to give the court power to make a direct order of medical examination. In fact, he agreed, as Counsel before me have both agreed, that the court has no power to make a direct order for medical examination. The same objection I have raised above to the judgment of Lord Justice Denning is also applicable to the present judgment of Lord Justice Widgery. If the court has no power to make a direct order about a certain state of affairs it would be wrong to make other order which will have an indirect effect of compelling a party to do that thing which the court has no power to order in the first instance. From these three judgments of the learned Lord Justices, particularly that of Lord Justice Widgery, it is appreciated that there is no direct power in a civil proceedings of this nature to make a direct order for medical examination on a plaintiff at the instance of the defendant, but it cannot be doubted that the order for a stay in that case had an indirect effect of achieving that which the court has no power to do directly. It is quite clear that in criminal proceedings there are specific legislation empowering the court to order medical examination in certain cases, but in civil cases I am not aware of such legislation. To stretch the unwritten inherent jurisdiction of the court to order a plaintiff to submit to a medical examination on behalf of the defendant is going too far. To prevent him from getting access to court, for trying to prevent interference with his person does not in my opinion appear to be right. The court of appeal in England appeared to have been influenced by the Evershed Committee Report and Lord Justice Winn's Committee Report on personal Injuries Litigation. These reports are not before me and I do not know whether they were evidence before the Court of Appeal in England. In any event, I do not think that this Court can be held bound by that authority of the Court of Appeal of England, this country now being in independent sovereign state but judgment of an eminent judge like Lord Justice Denning, Master of Rolls, would certainly be of the most persuasive authority and would be followed except the court feels otherwise strongly about the ratio decidendi of such decision. I so feel in this case. From the Edmeades case there appears to have been an element of volenti ab initio on the part of the plaintiff, for in the order for direction for the trial, the Master ordered that there should be medical examination of the plaintiff by a doctor on both sides. It is not clear what could have happened if the objection had been raised initially by the plaintiff in that case as it has been in this case. It would be seen that the plaintiff's Solicitor as appeared in the judgment of Lord Justice Denning said they had no objection to the plaintiff being examined by the original doctor for the defendants they did not object to the principle of the whole exercise. Here the plaintiff objects; the proceedings are not confined to the assessment of damages alone; the defendants have denied liability. The defendant now requests to examine the plaintiff to enable him prepare his case. Can it be said in this case that the request to examine the plaintiff is reasonable? I do not think so. I cannot agree to such a request as it would have the effect of imputing to the court the power it does not possess, especially when it affects the person of the plaintiff.
There is one authority to which I would refer, although it is not on all fours with the present case. It deals with the matter in which the court not having jurisdiction to make an order affecting foreign land proceeded to give a judgment in personam against a plaintiff to do that which the court had no jurisdiction to do. That is the case of Penn versus Baltimore, 1850. In that case:-
"A contract had been made in England between the plaintiff and the defendant, by which a scheme was arranged for fixing the boundaries of Pennysylvania and Maryland. To a suit for specific performance brought in this country the defendant objected that the court had no jurisdiction since it could neither make an effectual decree nor executive its own judgment. Lord Hardwicke, while admitting that he could not make a decree in rem, granted specific performance on the ground that the strict primary decree in a court of Equity was in personam."
There, it was quite obvious to the court that it had no jurisdiction to order the fixing of the boundaries of Pennysylvania and Maryland which were foreign countries, but the court there acted in personam. The exercise of jurisdiction in that case is based on the principle that the defendant had been guilty of misconduct that in the eyes of the court is contrary to equity and good conscience. It would be observed that the decision in Penn versus Baltimore affects foreign land and not the person of an individual. The judgment in Penn versus Baltimore is even open to some objection. In fact, Lord Esher in the case of Companhia de Mocambique versus The British South African Company 1892 2 Q.B. 358 went so far as to say that the decision in Penn versus Baltimore which has been acted upon by other great judges in Equity seems to him to be open to the strong objection that the court is doing indirectly what it dare not do directly.
In the present case, I do not think there can be anything which can be regarded as misconduct on the part of the plaintiff who has refused to be examined by the doctor appointed by the defendant. The principle of making this type of order is likely to be abused. The application for stay is refused, but I am prepared to grant leave to appeal to the Supreme court if so desired.
Mr Bentley asks for leave to appeal. Mr Oduwole does not object to the leave to appeal being granted.
Court: Leave to appeal is granted. I award £15.15s.0d. costs of this motion to the plaintiff.
Case adjourned sine die until the appeal is heard.