Kaine Agary

Kaine Agary

As long as humans exist and interact with each other, disputes are expected, whether between citizens and the state. Every society then decides how disputing parties will work out their differences. I am reminded of the Bible story that depicts the wisdom of King Solomon. In the story, two women laid claim to a child. The claims on either side were so strong that King Solomon had to use his great wisdom to determine which of the women the child belonged to.

Historical reports show that in some societies getting to justice was as crude as having a stone tied by string and watching its movement. The dispute is resolved according to how the stone swings. Not very reliable. We have evolved from those days. We now have the law courts, imperfect as they may be, to help us resolve our disputes. In Nigeria, we follow the common laws system, which we inherited from the English. It is a system that operates around legislation and case law (the decisions that have been taken by other judges in the past as to the position of the law).

Of course, there are rules of court and other mechanisms to ensure that everyone has a fair hearing and feels confident that the right decision was made. If one of the parties is aggrieved by the outcome, there are opportunities to appeal the matter to a higher court. There are some basic requirements that must be fulfilled before a person can use the courts.

The person bringing the suit to court must have a cause of action, meaning that he has a legal right to something and that right has been infringed upon by the other party. There are situations that allow for any citizen to institute an action. This is known as public interest litigation. The late Gani Fawehinmi took on many of these types of cases to protect the rights of citizens, the outcome of which we all enjoy today.

This exercise is not an attempt to give anyone a lesson on civil litigation. It is a response to many of the posts that I see on social media, seeking ‘justice’. Social media may help you emotionally deal with your pain, or refer you to a person or institution that can assist you, but justice is not something that you seek from social media. There are two issues that usually get people going: intellectual property rights and medical negligence.

It seems more people are becoming aware of intellectual property rights but have little understanding about how it works. Not all copying is an infringement. When you jump on social media and accuse someone of copyright infringement, you forget that there might be a backstory that we are not privy to. It is possible that the ‘infringer’ sought and was granted permission to use the work. Our social media advocates must remember that there are two sides to every story and keep from jumping into the fray of other people’s business. This is captured succinctly by a phrase we used as children: ‘This is between A and B, so C your way out of it.

Medical negligence is another area where the social media advocates are active. People have lost loved ones because of the care that they got (or did not get) in a medical facility. But medical negligence cases are difficult. Here is why. In the case of Ojo v Ghahoro & Ors, (2006) LPELR-2383 (SC), Niki Tobi JSC quoted Lord Denning, thus,

“A medical man, for instance, should not be found guilty of negligence unless he has done something of which his colleagues would say: “He really did make a mistake there. He ought not to have done it’ … but in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter what care is used. Every surgical operation involves risks. It would be wrong, and, indeed, bad law, to say that simply a misadventure or mishap occurred, the hospital and the doctors are thereby liable. It would be disastrous to the community, if it were so. It would mean that a doctor examining a patient, or a surgeon operating at a table, instead of getting on with his work, would be forever looking over his shoulder to see if someone was coming up with a dagger for an action for negligence against a doctor is for him like unto a dagger. His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body. You must not therefore, find him negligent simply because something happens to go wrong… You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man, in short, when he is deserving of censure.”

As a general rule, it is wise to take a step back and get all the facts before coming to a conclusion. Not everything is as it seems on first glance.

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