➥ CASE SUMMARY OF:
Iheonu Nwaogu Obineche V. The Chairman Medical And Dental Practitioners Investigating Panel (CA/A/125/2015 · 11 Feb 2021)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Duplicity in a charge;
Fair trial.
➥ CASE FACT/HISTORY
This is appeal is against the decision of the Medical and Dental Practitioners Disciplinary Tribunal (hereinafter “The Tribunal”), sitting in Abuja delivered on the 15th day of January, 2015, wherein, the Tribunal suspended the Appellant (Dr. Ihuonu Nwaogu Obineche) from practicing medicine for a period of two (2) months. Dissatisfied with the said decision, the Appellant filed a Notice of Appeal on the 10th February, 2015 setting out 5 grounds of Appeal. The Records of Appeal was transmitted on the 23rd March, 2015.
Facts leading to this appeal are amenable to brief summary. I shall do so shortly. The charge against the Appellant was that he carried out a myomectomy operation on the deceased under a very high blood pressure reading of 180/120. On the basis of a report vide an affidavit sworn to by Hajia Lamy Lawal, the Appellant was invited by the Medical and Dental Practitioner Investigative Panel to answer to the allegations made by the deponent against him. In response to the affidavit, he filed a 52 paragraph counter affidavit. After a thorough consideration of the affidavit of facts and oral presentations, a prima facie case was established against the Appellant by the panel. The charge was that he failed to carry out a proper pre- operative checks or did so in perfunctory manner resulting to the death of the patient and that he has conducted himself in a most infamous manner in a professional respect contrary to Rule 29 of the Code of Medical Ethics in Nigeria, 2008. The Appellant was dissatisfied with the decision thus this appeal.
➥ ISSUE(S)
I. Whether the charge used for the trial of the Appellant is defective?
II. Whether the conviction of the Appellant is supported by evidence proffered by the prosecution or defence on record.
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE CHARGE IS NOT DEFECTIVE – EVEN IF DEFECTIVE THE APPELLANT SUBMITTED TO TRIAL
‘Any objection to a charge for any formal defect on the face thereof shall betaken immediately after the charge has been read over to the accused and not later. Therefore, where a party fails to object to any formal defect on the face of the charge immediately after the charge has been read to the accused person, and takes part in the hearing of the case to conclusion, he is deemed to have forfeited that right to object. The Appellant in this case took his plea without any objection. What the law also considers as important is whether the person standing trial understood the charge. Again, the Appellant did not allege that he was misled by the charge as framed or as inflicted by duplicity virus. He was able to put up a defence to the charge, it is too late to raise the issue of duplicity of the charge at this stage, see STATE v. GWONTO (1983) LPELR-3220(SC) wherein the apex Court held thus: “it is well settled that a Court of Appeal will not interfere on an issue of duplicity if it is clear from the records of proceedings that the accused knew what charge he was to face, was neither embarrassed nor prejudiced and there is no miscarriage of justice. See Rex v. Peter Kalle (1937) 3 WACA 197.” Per NNAMANI, J.S.C. Furthermore, the three variants of the charge which have virtually the same essence and the Appellant clearly understood the allegation against him. The charge is therefore not deficient and even if it is, it has been overtaken by the Appellant’s submission to trial.’]
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↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE APPELLANT WAS NOT GIVEN A FAIR TRIAL
‘With the existence of Exhibit D1-D4 before the Tribunal, the quarrel of the Tribunal was that the documents should have been in the case notes and inspite of the explanation offered that documents were removed from the hospital by government officials and some got missing, thus, the Appellant use photocopies of some of the documents. There was no rebuttal that Government did not cart away relevant documents concerning the subject of investigation and trial. The Appellant was not given the opportunity to defend himself and the trial was unfair and cannot stand. Furthermore, the prosecution did not set out the standard procedure that was flouted in this particular case as to warrant the guilty verdict. In any case, Exhibit “C” before the Tribunal was the case notes that they concluded were not included and it explained the management of the patient. It is a detailed handling of the patient. I refer to the Tribunal members that being professionals in the relevant field they are experts and are knowledgeable but the prosecution should have set out what the standard procedure is by calling a witness to testify and pointedly identify where the breach occurred. Such medical evidence cannot come from the ‘ipsi dixit’ of a witness who has no Medical training (PW2) or Tribunal members themselves who are sitting as Judges. On this issue, I find for the Appellant, he was not given a fair trial and the finding of guilt must be set aside.’
NO MEDICAL REPORT SHOWED THE CAUSE OF DEATH
‘There was no medical report showing the cause of death that could flow from the purported perfunctory handling of the patient. The Tribunal gave evidence upon which it latched on to convict the Appellant when it said thus: “in major surgery, first of all you have to establish the diagnosis of what you are doing through history, physical examination, if necessary do the investigation, in this case the ultra sound. Before you conduct a surgery you have to be sure that the person undergoing the surgery is fit enough to go through the surgery. That is why ultra sound examination is mandatory, other investigation of chest x ray to see the lung capacity, kidney is a vital organ for everybody after operation. We test the urine for sugar if it is negative. If positive, we check the blood sugar. These are standard things we do before any operation”. No such evidence was before the Tribunal, so it testified against the Appellant and also used its evidence to find the Appellant guilty of infamous conduct. A Judge cannot be a prosecutor in the same proceedings.’]
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.
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✓ DECISION:
‘The appeal is allowed and the Tribunal’s finding that the Appellant is guilty delivered on the 15th day of January, 2015, by the Tribunal is hereby set aside and in its place. The Appellant is hereby discharged and acquitted.’
➥ FURTHER DICTA:
⦿ COMPETENCE OF CHARGE TOUCHES ON THE JURISDICTION OF THE COURT
Issue one challenges the competence of the charge upon which the Appellant was tried by the Tribunal. I am of the considered opinion that competence of the charge impacts on the jurisdiction of the Tribunal to determine the referral made to it for consideration. It is therefore necessary to resolve the competence of the charge before proceeding to determine the other issues which touch on the merit of the charge and consequently the trial … Competence of the charge impacts on jurisdiction of the Tribunal. There is no doubt that issue of jurisdiction is a threshold issue. It is so fundamental that the absence of it would rob the Tribunal of the power to hear and determine a referral. Generally, jurisdiction can be raised at any stage of the proceedings and in any Court for the first time. See ELELU-HABEEB v. ATTORNEY GENERAL OF FEDERATION v. ORS (2012) 13 NWLR (PT.1318) 423; MADUKOLU v. NKEMDILIM (1962) 2 SC NLR, 341; ODOFIN v. AGU (1992) 3 NWLR (PT. 329) 350. — Y. B. Nimpar JCA.
⦿ DUPLICITY IN A CHARGE
A charge would be said to be bad for duplicity where in the charge two or more offences are lumped together, i.e. to say lumped together in one count, See OKEKE v. POLICE 12 WACA p 363 and HUMBE v. STATE (1974) 5 SC p 27. — Y. B. Nimpar JCA.
⦿ OBJECTION TO A CHARGE SHOULD BE TAKEN IMMEDIATELY AFTER READING
Any objection to a charge for any formal defect on the face thereof shall betaken immediately after the charge has been read over to the accused and not later. Therefore, where a party fails to object to any formal defect on the face of the charge immediately after the charge has been read to the accused person, and takes part in the hearing of the case to conclusion, he is deemed to have forfeited that right to object. — Y. B. Nimpar JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Yargata Byenchit Nimpar, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
CHIEF M. I. Ahamba, SAN, KSC
⦿ FOR THE RESPONDENT(S)
Sanusi Musa, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ DEFINITION OF MISCARRIAGE OF JUSTICE
In GBADAMOSI v. DAIRO (2007) LPELR – 1315 (SC) the apex Court defines miscarriage of justice as follows: “Miscarriage of Justice connotes decision or outcome of legal proceeding that is prejudiced or inconsistent with the substantial rights of the party. Miscarriage of Justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it. The burden of proof is on the party alleging that the injustice has been miscarried.”
➥ REFERENCED (OTHERS)
