OBINECHE v. CHAIRMAN MEDICAL & DENTAL PRACTITIONERS INVESTIGATING PANEL (2021)

OBINECHE v. CHAIRMAN MEDICAL & DENTAL PRACTITIONERS INVESTIGATING PANEL

(2021)LCN/15496(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, February 11, 2021

CA/A/125/2015

RATIO

WORDS AND PHRASES: MISCARRIAGE OF JUSTICE

WORDS AND PHRASES: PRIMA FACIE CASE

A prima facie case has been considered in a plethora of decisions and I will cite just one here, see DURU & ORS V NWOSU(1989) LPELR-968 (SC) where the apex Court defined it thus:
“What then is the meaning of the expression “prima facie case” The expression “prima facie” comes from two Latin words primus (which means first) and facies (which means face). “Prima facie”, therefore literally means on the first appearance. Applied to the rule of onus of proof in the law of evidence, a “prima facie case” is a case supported by such a quantum of evidence on every material issue thereof that, if no evidence is called by the other side, or, if called, as often happens in civil cases, such contrary evidence is disregarded, the plaintiff (or the party on which the burden lies) will be entitled to the verdict of the Court on the case or the particular issue, as the case may be. It is evidence which, viewed on the face of it alone, is sufficient to entitle the Court to proceed with the proceedings. In a civil case at least, it is not a case which takes into account the evidence called by or on behalf of the opposite party.”

Flowing from the definition above, prima facie is not proof but what would require the person confronted with an allegation of infamous conduct to explain. There also a valid and specific reference accompanied by a charge. PER YARGATA BYENCHIT NIMPAR, J.C.A.

WORDS AND PHRASES: DEFINITION OF INFAMOUS CONDUCT

The Appellant also alleged that there was no infamous conduct as to warrant the finding made by the Tribunal, infamous conduct was defined in the case of MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL V. OKONKWO (2001) LPELR-1856(SC) thusly:

“A charge of infamous conduct must be of a serious infraction of acceptable standard of behaviour or ethics of the profession. It connotes conduct so disreputable and morally reprehensible as to bring the profession into disrepute if condoned or left unpenalised. Although the medical profession is the primary judge of what is infamous conduct, it cannot do so without paying attention to what the law permits, either of the patient or of the practitioner.” Per AYOOLA, J.S.C.
It is the facts of each case that determines whether the act complained about amounts to infamous conduct or not and it is not in every case that the word infamous conduct must be used before the charge can be valid or competent. A conduct that is reprehensible so as to bring the Medical Profession in to disrepute if unchecked will definitely fall into the definition of infamous conduct. I agree with the investigating Panel that the allegation is of an infamous conduct. PER YARGATA BYENCHIT NIMPAR, J.C.A.

CRIMINAL LAW: CIRCUMSTANCES IN WHICH A CASE WOULD BE CONSIDERED BAD FOR DUPLICITY

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. It is also trite that a person standing trial is expected to raise an objection to a defective charge at the earliest opportunity which is when taking his plea, see AMEH V STATE (2018) LPELR-4463(SC) which held as follows:
“Notwithstanding the above scenario, the appellant did not challenge the competence of the charge when or before plea was taken. The law is quite clear that objection to the charge must be taken before or at the time plea is to be taken, and not thereafter. See Section 167 of the Criminal Procedure Act, Cap 43. This Court, in Adio v. The State (1986) 3 NWLR (PT. 31) 714, also reported in (1986) LPELR – 184 (SC) at pages 27 – 28 paragraphs G – D held as follows: “The proceedings against the accused commences with the filing of the information. This is why any objection to a formal defect in the charge should be taken before plea, otherwise, the objection is taken as having been waived – (See S. 167 Criminal Procedure Act, Cap 43). Similarly a want of jurisdiction which ordinarily could be raised at any stage of the trial is better raised before plea is taken. See R V. Adiukwu (1939) 5 WACA 132. The plea of the accused may, if it is one of guilty of the offence charged, result in the conviction and sentence of the accused at the end of the trial, unless there is sufficient cause to the contrary – (See S.218 Criminal Procedure Act, Cap 43). This procedure cannot be correctly described as a trial without a hearing. It is important that the accused must himself plead to the charge or information – See R. V. Hayes (1951) I K.B. 94…” See also Attah v. The state (2010) LPELR – 597(SC), Agbo v. The State (2006) 6 NWLR (pt. 977) 545, Adekunle v. The State (2006) 14 NWLR (pt. 1000) 717. The law is trite that a convict cannot hang on mere irregularity of Procedure (if any) to gain acquittal unless he can show that such irregularities in procedure led to substantial miscarriage of justice.” 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.
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. PER YARGATA BYENCHIT NIMPAR, J.C.A.

Before Our Lordships:

Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

IHEONU NWAOGU OBINECHE APPELANT(S)

And

THE CHAIRMAN MEDICAL AND DENTAL PRACTITIONERS INVESTIGATING PANEL RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): 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.

The Appellant’s brief was settled by CHIEF M. I. AHAMBA, SAN, KSC, dated 2nd June, 2015, filed on the 11th June, 2015 but deemed on 24th November, 2020. It formulated three issues for determination as follows:
a. Whether the trial of the Appellant in the Tribunal on a charge the particulars of which were not part of the Investigation Panel Proceeding was proper in law. (Ground 5).
b. Whether the decision by the Respondent to discountenance Exhibits “D1” – “D4” as an afterthought was proper in law (Grounds 1 & 2).
c. Whether the conviction of the Appellant is supported by evidence proffered by the prosecution or defence on record (Grounds 3 & 4).

The Respondent’s Brief was settled by SANUSI MUSA, ESQ., dated 3rd April, 2017, filed same day but deemed on the 16th November, 2020. He adopted the issues for determination formulated by the Appellant.

Thereafter, the Appellant filed a Reply brief dated 10th November, 2020 and filed on the 11th day of November, 2020, but deemed on 16th November, 2020.

APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant submitted that issue one queries the trial of the Appellant in the Tribunal on a charge the particulars of which were not part of the investigation Panel’s proceedings. Both the Investigation Panel and the Disciplinary Tribunal are creations of statute and thus, derive their functional competence there from. The Tribunal was created under Section 15(1), and the Panel created under Section 15(3) of the Medical and Dental Practitioners Act (Cap M8), Laws of the Federation. The Appellant submits that with the introduction of Exhibits ‘A’, ‘B’ & ‘C’ by the Panel (Respondent herein) only the first arm of Subsection (3)(a) is relevant and applicable in this case. The question then is: Does the charge on which the appellant was tried reflect the case presented against him in the Panel’s proceeding? The Appellant also submit that there is no reflection of, or nexus between the investigation by the Panel, and the charge before the Tribunal as we will show hereunder.

The Appellant reproduced Section 15(1) of the Act which states the functions of the Tribunal as provided in two parts, that is
i. The duty of considering and determining any case referred to it by the Panel established under Subsection (3) of the Section, and
ii. Any other case of which the Tribunal has cognizance.

The Appellant contends that the words of Section 15(1) connote two distinct functions of the Tribunal which the Appellant reiterates that the function relevant to this appeal is the first part that is, a case under reference from the Panel. Exhibits ‘A’, ‘B’ and ‘C’ all emanated from the Panel. The Appellant submits that it is necessary to note that what the Tribunal is given jurisdiction to consider and determine is ‘any case referred to it’ by the investigative Panel. The Appellant further submit that for the Panel to competently refer a case to the Tribunal, that case the subject matter of the referred, must have come before the Panel for investigation because, for a matter to be referred to another body, the referring body must have considered it before reference. Even in the case of reference of a point of law to the Supreme Court for determination under Section 295 of the Constitution of the Federal Republic of Nigeria, the referring Court usually expresses an opinion on the point under reference. And when such reference is made, the Supreme Court does not go beyond what was referred. The Appellant therefore submit that the Panel had no competence to refer to the Tribunal a complaint that was never a case before it for investigation, and also further submit that where such a reference which never went through the investigation process is made, the Tribunal has no competence to adjudicate such a reference.

The Appellant also questioned whether there was any complaint of infamous conduct before the Panel for investigation, and if what was brought before the Panel suggests infamy, which is not conceded was brought before the Panel, which is also not conceded, was established to qualify for reference to the Tribunal. The Appellant submit that there was no such complaint before the Panel. The only complaint was that the Appellant carried out operation on a patient whose blood pressure was reading 180/120. This is contained in Exhibit ‘A’ (page 5) but disproved in Exhibit ‘C’ (pages 25 & 26 of record), both relied upon by the prosecution in proof of ‘infamous conduct’. The Appellant further submit that there was no case of infamous conduct investigated by the Panel that was, or would have been referable to the Tribunal, and none was referred to it. The Appellant further states that, in the unlikely event that this Honourable Court holds that an unprofessional allegation of High Blood Pressure condition constitutes infamous conduct even in the face of contradiction with Exhibit ‘C’, no prima facie case could have been established against the Appellant, Exhibit ‘C’ having proved the allegation in Exhibit ‘A’ to be false, leaving nothing to be referred. The Appellant also argued that even if there was to be a reference, then, it would have been specific on what was investigated, that is the High Blood Pressure 180/120 allegation which should have been specifically referred to in the charge.

Furthermore, the Appellant submit that in the absence of any such reference, the trial of the Appellant before the Tribunal was illegal being outside the statutory competence of the Tribunal under Section 15(1) of the Act. The Appellant urge the Honourable Court to so hold, and resolve issue A in the negative. The Appellant concluded by stating that this appeal ought to be allowed and he urge the Honourable Court to allow same.

ISSUE II
The Appellant argued that the Tribunal did not rely on Exhibits “D1-D4” as relevant evidence before reaching its decision. The Appellant reproduced the holding of the Tribunal at pages 138 and 139 and said it tend to suggest that the Respondent on record was not represented by a lawyer, and that the Respondent who even conducted the pre-trial investigation had no legal burden to discharge in a matter that was in the family of criminal proceedings. This is a misdirected impression which occasioned a miscarriage of justice. The Appellant also submits that the Respondent had the duty to prove the multiple allegations in the charge, and that the Appellant had no burden to prove anything, as his duty being to oppose what is proved. The Appellant further argued that the Tribunal’s conclusion is very erroneous as seen in paragraph 4.01A of its judgment. There is no such evidence proffered by the prosecution on record of such a mandatory procedure.

The Appellant further argued that the statement is one which ought to have been based on evidence, documentary or oral, proffered by a witness called by the prosecution who would need such piece of evidence to succeed, but definitely not from the Court or Tribunal as it is not within the province of an adjudicator to provide evidence, let alone decisive evidence as the tribunal has said that this particular fact is. Citing the case of ORIZU V. ANYAEGBUNAM (1978) 1 LRN 216 and FAWEHINMI V. AKILU (1987) 2NSCC 1265. The Appellant submits that in the instant appeal, the Tribunal put up a case for the respondent, and based its final decision on it. The Appellant also submits that no witness testified as to the mandatoriness of the inclusion of the request for Exhibits ‘D1’-‘D4’ in Exhibit ‘C’ before evidence of the medical result could be applied in decision making. After all, they had been admitted as relevant evidence and, in the absence of any evidence of falsity, the exhibits should not have been shoved aside the way they were. The Appellant further submits that the Tribunal had no right to put up a case for the Respondent who called no evidence on any of the alternative allegations, the presence of which even questions the legality of the charge. The Appellant also reproduced the holding of the Tribunal at page 139 to submit that the Tribunal was conscious of the multiplicity of allegations in the charge and he asked, is this evidence adduced by the prosecution of infamous conduct reflected on record? The Appellant states that the Tribunal should not have rested on a case it created suo motu to deny probative value to un-assailed documentary evidence which totally exculpated the Appellant from the multiple charges. It cannot be said on a reasonable note that the Tribunal’s decision on Exhibits ‘D1’-‘D4’ would have been the same without this infusion of extraneous fact on behalf of the Panel by the Respondent.

The Appellant further argued that a thorough search has revealed no evidence of any infamous conduct on record. The only evidence remains Exhibit ‘A’ in which PW2 alleged that surgery was conducted under a B.P. reading of 180/120, an allegation that was rubbished by the prosecution’s own Exhibit ‘C’ where B.P. reading was recorded twice as 130/90 (See pages 25 & 26) and Exhibit ‘B’ the Appellant’s deposition before the Respondent. The Appellant’s response to the charges includes Exhibits ‘D1′-D4’ which stood undisputed by the adversary who had made no allegation at all of any type of conduct let alone an infamous one. All that the prosecution wanted was to prevent the use of the Appellant’s documents, instead of proffering evidence in support of its multiple allegations. The Appellant submits that Exhibit ‘C’ constituted a complete answer to the Panel’s allegation at its proceeding and the Tribunal was in error by denying Exhibits ‘D1’-‘D4’of probative value having based the denial on a self introduced fact on the need to reflect in the case note the request for the tests covered by Exhibits ‘D1’-‘D4’.
The Appellant urge the Honourable Court to resolve Issue 2 in the negative and allow the appeal.

ISSUE THREE
The Appellant referred to the conviction of the Tribunal at page 139 of the record and asked whether there was any proof of the charge on which the appellant was tried and convicted? The Appellant reproduced the holding of the Tribunal before the pronouncement of guilt. The Appellant submits that when the Tribunal spoke of ‘reviewing evidence’ it would be taken to have meant evidence from the prosecution and evidence from the defence but there was no scintilla of evidence proffered by the prosecutor in proof of the rather speculative charge presented in three alternatives of carrying out the operation in the following circumstances:
a. Not carrying out any pre-operative checks, OR
b. Not carrying out any proper pre-operative checks, OR
c. Carrying out a pre-operative check in a most perfunctory manner.

The Appellant contends that, the lack of specificity of the allegation in the charge, makes the charge no more than an ambush, which is more of a dragnet of charges than a charge under the Rules. The charge is thus, afflicted with extreme ambiguity. The Appellant asked, what was the Appellant called upon to defend? Was it that he did not carry out any pre-operative checks, or that he carried out the test but did it improperly, or that he carried out the checks but perfunctorily? The Oxford Learners Dictionary (6th Edition) defines the word perfunctory as “an action done as a duty or habit without real interest, attention or feeling” (emphasis supplied). The Appellant submits that a perfunctory action cannot co-exist with an allegation of non action at all. He respectfully submit that if any infamous act exists in this proceeding, it is the charge as drafted which appears to manifest a malicious intent, and which when viewed objectively could be construed as an inexplicable case of professional vendetta. The Appellant specifically urge the Honourable Court to so hold.

The Appellant also contends that without prejudice to the speculative state of the charge, the crucial question is: On which of the three allegations did the prosecution proffer any evidence in support? He respectfully submit that there was none. The Appellant argued that, the only evidence brought by the prosecution before the Tribunal were Exhibit ‘A’, ‘B’ and ‘C’. Even the Panel’s report was not brought before the Tribunal, and no expert was called to fault Exhibit ‘C’. Who then gave the evidence of infamous conduct before either the Panel or the Tribunal? The record does not show any such testimony. Who proffered any evidence of procedural omission in the surgery carried out on the deceased? Nobody. Was it contained in any document tendered by the prosecution? Answer is no. The Appellant submit very firmly that at the close of the prosecution’s case on 3rd September, 2014 (P. 65) the Tribunal should have dismissed the charge as unproved. But instead the Appellant was called upon to defend; and he did. The Appellant also submits that as noted in the judgment of the Tribunal as copied at page 139 it was the duty of the Appellant to have adduced evidence in rebuttal of the charges against him. Although, this was an unusual apportionment of burden of proof in a quasi criminal trial, the appellant discharged this burden even after the prosecution has failed woefully to establish a case against him. The Appellant tendered Exhibits ‘D1’-‘D4’ which are copied at pages 41-46 of the record. The Appellant submits that when Exhibit ‘C’ was tendered and relied upon by the prosecution is considered, either alone or in community with Exhibits ‘D1’-‘D4’, it is clear that there was no proof, even an attempt to prove, the ingredients or elements of the charge against the Appellant read out to him as copied at pages 48 – 49 of the record.

The Appellant further contends that the content of a charge is not evidence against any accused person whether in a criminal or quasi-criminal proceeding. The Appellant states that on the premise of that submission urge the Honourable Court to resolve issue ‘III’ in the negative and allow the appeal.

The Appellant then sought the following reliefs from the Court of Appeal:
i. That the appeal be allowed and the judgment of the Medical and Dental Practitioners Disciplinary Tribunal delivered on 15th January, 2015, to the effect that the appellant was guilty of infamous conduct, set aside.
ii. That the order prohibiting or barring the appellant from medical practice be set aside.
iii. That the Respondent be condemned to bear the cost of this proceeding.

RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent contends that the case of the Appellant before the investigative panel was as follows:
i. That the Appellant failed to do what he reasonably ought to have done for the good of the patient by allowing the patient to go home barely two hours after blood transfusion.
ii. And carrying out a mymectomy surgery at a very high blood pressure of 180/120 adjudged too high for any medical surgery.
iii. That the Appellant was negligent, reckless and careless in the way and manner he handled the deceased patient.

The Respondent submitted that the allegation of the Appellant is that he was tried on a charge with particulars that were not part of the investigative panel proceeding. The Respondent submits that in establishing the case (i), it is clear that the Appellant exhibited high degree of negligence in transfusing blood, the Appellant’s hospital does not have transfusion policy, there is nothing in the case to suggest that the deceased was monitored by a clinician while on transfusion, even the Appellant admitted in his counter affidavit that the patient was transfused but discharged her even when she was slated for major surgery the following day, it is beyond contention that the Appellant conducted himself infamously in a professional respect. Referred to Rule 29: 1a of the Code of Medical Ethics in Nigeria to state that a patient should be supervised and monitored after blood transfusion, allowing the deceased to go home barely two hours after intravenous transfusion of blood drips is professional negligence and infamous conduct, referred to Rule 29.4 which defined the acts or omissions that constitute negligence. The Respondent submits that it is clear that the Appellant’s actions as regards the management of the deceased are in divergence with the provision of Rule 29:4 of the Code of Medical Ethics in Nigeria which amounts to infamous conduct.

The Respondent further submitted that, action amounting to infamous conduct were itemized in Rule 29.4 and Section 15(3)(a) of Medical and Dental Practitioners Act, CAP M8 2008, which follows that the misbehavior complained of must have taken place when the practitioner was acting in his capacity as a Medical Practitioner or Dental Surgeon. Any act amounting to professional negligence would be deemed to be infamous conduct as stated in RE IDOWU (1971) ANLR (218) and N.B.A. V. EDU (2006) 14 NWLR(PT. 1000) 827. The Respondent contends that any defect or misalignment on the face of a charge, in which an amendment to the charge maybe effected by leave of Court. The Vital and pertinent question to be addressed is whether the Appellant/Defendant was prejudiced or affected in any way in conducting his defence in spite of the defective charge? The Respondent aligned itself with eminent holding of the Tribunal which states that the Appellant was not misled by the defect in the charge, citing the case of OGBOMOR V. STATE (1985) 2 SC 289. The word prejudicial was defined in Oxford Advanced Learners Dictionary 8th Ed. 1153 to mean-harming or likely to harm. The question the Respondent asked is whether the Appellant was occasioned miscarriage of justice in any way in his presentation of his defence in spite of the “defective charge”. The answer is in the negative because a defective charge also includes the particulars of the offence grounding the charge. The Respondent further argued that once a charge discloses an offence known to law, any defect in the charge shall not render it bad unless the accused person was misled by the defect in the conduct of his defence as stated in OBUMSELU V. COP (SUPRA).

Furthermore, the Respondent submits that the five grounds of Appeal and the three issues formulated therefrom for determination cannot stand and accordingly should be dismissed by this Honourable Court for being unmeritorious and affirm the judgment of the lower Tribunal.

ISSUE II
The Respondent argued that the Tribunal was right to have discountenanced Exhibits “D1-D2” as irrelevant evidence before arriving at its decision. The Respondent also reproduced the holding of the Tribunal at page 138 of the Record. The Respondent submits that the Appellant was given ample opportunity at the Investigation Panel to present documents to establish his innocence but for some inexplicable and dubious reasons, he did not present Exhibits D1-D4 which made it to be nonexistent as at the material time. The Respondent relied on the standing order & rules of procedure of the Medical and Dental (Made pursuant to clause 6, paragraph (1) of the Second Schedule to the Medical and Dental Practitioner’s Act Cap M8. L.F.N 2004, Rule 9 (iii) & iv). The Respondent also submits that where a standard letter of invitation is extended to a medical practitioner against whom complaints have been lodged usually implores then to assemble all documents that will be useful for their defence before the Investigative Panel. Such letter was extended to the Appellant with the above cited provision and the Appellant even admitted that he was asked to forward all document relevant to his defence but failed to do so. Also, in the original case note presented by the Appellant, no mention was made of Exhibits D1-D2 which in itself constitutes a misconduct. The Tribunal on the importance of pre operative checks held that “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”.

The Respondent also argued that the case note is the single most important document showing the patient’s history and treatment received in a medical facility during the period of his/her management at that facility. The Respondent submits that the entries in deceased case note were for two units of blood and checks assessments, which in itself is a misconduct. The Respondent also submits that the essence of the case note is to provide information to any other medical practitioner that will carry on the management of a patient in the event of indisposition of the practitioner saddled with the management of the patient at first instance. The Respondent cited the Lawyers Medical Cyclopedia (4th ed.) at pages 200 which provides that all case notes must contained the following (even though the format of every hospital can be different):
1. Identification data (if such data is not obtainable upon a patient’s admission to the hospital, the reason should be stated in the record).
2. The patient’s medical history
3. Report of relevant physical examination of the patient.
4. Diagnostic and therapeutic orders while the patient is hospitalized.
5. Evidence of appropriate informed consent.
6. Clinical observation, including the results of treatment received by the patient.
7. Reports of examination, tests and procedures, including their results.

The Respondent states that there is nothing in the case note submitted by Appellant that points to that direction. The Respondent also states that the Tribunal was right in not attaching any probative value to Exhibits D1-D4. The Respondent further states that it is very curious that Exhibit D1-D2 surfaced seven clear years after the demise of the patient and three years after the case note was handed in by the Appellant at the Investigative Panel evidencing that the Appellant purposely withheld this vital piece of evidence which if produced before the Investigative Panel would have conducted more investigation that would establish the falsity of the said Exhibits. Citing Section 167d of the Evidence Act, 2011 and OKONJI V. NJOKANMA (1999) 14 NWLR (PT. 638) 250.

The Respondent further argued that what probative value would a Tribunal attached to a piece of evidence which surfaced seven years after the demise of a patient and three years of opportunity to present it to the Investigative Panel which was unutilized by the Appellant. It is obvious that the document was not in existence at the time the deceased was at the Appellant Medical Facility, it was apparently made up after the demised of the patient. The Tribunal therefore exercised its discretion judicially and judiciously in according no evidential value to the said Exhibits. The Respondent submits that the Appellant contended that evidence ought to have been led as to the mandatoriness of Exhibits D1-D4 as stated in Exhibit C.

The Respondent vehemently disagreed with this position and stated that the Appellant acknowledged the mandatoriness of pre operative check during cross examination which affirmed the pertinence of pre operative checks. Relied on TAIWO V. ADEGBORO (2011) 11 NWLR (PT. 1159) SC. The Respondent also submits that there was no obligation to lead evidence since the pre operative checks are essential parts of the case notes, cites LAWYERS’ MEDICAL CYCLOPEDIA PAGE 200.

ISSUE THREE

The Respondent contends that they were able to establish through Exhibit ‘C’ that the Appellant infamously conducted himself in an unprofessional manner by allowing the patient to go home after intravenous transfusion of blood. The Respondent cited Rule 29 (i) of the Code of Ethics and asked whether the patient was afforded the benefit of the presence of a clinician at all times even when her condition demanded such clinician’s presence? The answer is no which goes to show that the Appellant did not do all that was expected from and of him for the good of the patient. All the pre operative activities were either not done or done in perfunctory manner. The Respondent states that from the content of case note, it was obvious that the Appellant conducted himself in a very infamous manner. The Respondent states that the Appellant’s allegation about the unspecific nature of the charge is totally without momentum, assuming but without conceding that the charge was not specific, that alone will not void the charge. The Appellant contended that lack of specificity of the charge was prejudicial to the Appellant in preparing his defence at the Tribunal and he asked how? The answer is in the negative because, once a charge discloses on offence known to law, any defect in the charge shall not render it bad in law unless the accused person was misled by the charged in the preparation of his defence as stated in OBUMSELU V. C.O.P (1958) SCNLR 464.

The Respondent also contends that the prosecution discharged the burden of proof by tendering and relying on the case note of the Appellant. The Respondent states that the Tribunal was duly constituted with qualified medical and Dental practitioners who thoroughly scrutinize the case note and form an opinion on whether the Appellant fully complied with the dictates of the profession as regards pre operative checks. The Respondent referred to the case of AKINTADE V. CHAIRMAN MEDICAL AND DENTAL PRACTITIONER DISCIPLINARY TRIBUNAL (2005) 9 NWLR (PT. 930) 338 to show that the prosecution has proved the charge against the Appellant at the Tribunal. Also relied on OKONKWO V. MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL (1999) 9 NWLR (PT. 617)1 and DENLOYE V. MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1968) 1 NWLR 306.

The Respondent further contends that the trial before the Tribunal was not a criminal trial and in this present case, it was established from the case note that the Appellant failed to do what was required of him by the code of medical ethics in Nigeria which he subscribe to.

APPELLANT’S REPLY BRIEF
ISSUE I
The Appellant draws the attention of the Court to the charge before the Tribunal (See P. 1-2 of records) to compare it with what was filed against the Appellant at the Preliminary Investigation the Court will discover that what the Appellant was tried for by the Tribunal was different from the charge upon which he was investigated. According to the Appellant, the argument proffered by the Respondent was on the quality of the charge and did not answer the question raised by the Appellant even though the charge was bad for duplicity, the issue raised was whether a party can be validly subjected to a Preliminary Investigation on a charge and be referred to the Tribunal on another charge with different particulars, the Respondent have not dealt with this issue and therefore has conceded to the point. Finally, there is nothing in the Respondent’s brief to successfully justify the injustice suffered by the Appellant at the instance of the Respondent.

ISSUE II
The Appellant argued that the Respondent submitted that the Appellant was given ample opportunity by the Investigative Panel to “establish his innocence”, this submission is alien to our accusatorial criminal jurisprudence in which an accused has a duty to prove his innocence, this is against the provision of Section 36(11) of the Constitution of the Federal Republic of Nigeria, 1999, which provides that the prosecution must prove the guilt of the accused and not the accused to prove his innocence. The Appellant submits that where the prosecution is resting its defence on the failure of the accused to prove his innocence then the prosecution has conceded failure. The Appellant states that, if he has to present any evidence, he has to do as required for the defence of the specific allegation against him, not in defence of speculative allegations that could have been made but were not made. The Appellant states also that the Respondent relied on the Standing Order and Rules of Procedure of the Medical and Dental Practitioners made pursuant to a Clause paragraph (1) of the Second Schedule to Medical and Dental Practitioners Act Cap M8. L.F.N 2004 and Rule 9 (iii) & (iv), however this provision stated specifically what the Appellant should respond to and the Appellant responded to the complaint via “Exhibit A” (See P. 3-7 of the Record). According to the Appellant, the Respondent has not argued before this Honourable Court that Exhibit “C” was not a complete answer to the complaint in Exhibit “A” which is that the Appellant carried out a surgery on a patient running a blood pressure (b/p) of 180/120 but the Respondent rested its argument on the non-compliance with Rule 9(iv).

The Appellant also argued that Rule 9(iv) relates to a different more elaborate situation than Rule 9(iii) which the situation only arose during the framing of the charge and not at the preliminary investigation which was based on a specific complaint in Exhibit “A”. The Appellant reproduced the content of paragraph 9(iv) and stated that the documents are thereafter stated and they are six in number. The Appellant submits that the Preliminary Investigation was done as required under Rule 9(iii) however, it was when the charge was expanded at the Tribunal beyond the complaint in Exhibit “A” that the additional documents became necessary and were produced but the Appellant was never required to produce them at the Preliminary investigation, consequently, Exhibit (D1 – D4) were thus relevant to the proceedings at the Tribunal hence, they were admitted without objection. The Appellant further states that it is very unfair for the Respondent to mix up Rules 9 (iii) and (iv) as if they are the same. Also, that the Respondent abandoned Rule 9(iii) which was applicable to the instant case and started to rest on Rule (iv) which was not applicable. The Appellant further submitted that at no time was the Appellant invited to the Preliminary investigation on an allegation of professional management of a patient which is provided under Rule 9(iv).

The Appellant further contends that Exhibit “D1 – D4” having not been objected to when presented, the Tribunal was wrong to have accepted the prosecuting Counsel’s suggestion that the documents were an after-thought without any evidence of dispute over its authenticity. Exhibit “C” was a complete answer to the allegation in Exhibit “A” just as Exhibits “D1-D4 completely answered the new charge sprung on the Appellant at the Tribunal. The Charge did not emanate from the complaint in Exhibit “A” on which the Preliminary Investigation was held and having admitted Exhibit D1 – D4 in evidence without objection, it was wrong for the Tribunal to deny the Exhibits probative value without more. The Appellant also states that the Tribunal ought to have stated which law the exhibits infringed upon but it did not. The specific importation of counsel’s speculation during cross-examination, which was denied, does not justify the conclusion of after-thought foisted on the Appellant and does not justify the denial of probative value from the Exhibits.

Furthermore, the Appellant submits that the Respondent alleged that the Appellant failed to submit Exhibit “D1-D4” first for inexplicably dubious reasons and because the documents were not available at the time the patient was at the Appellant’s Medical Facility and also the documents were apparently made up after the demise of the patient. However, no evidence can be found on record that would have made the facts submitted by counsel true because this is clear example of speculative finding based on a speculative submission by counsel and any conclusion based on speculation cannot be allowed to stand as held inOVERSEAS CONSTRUCTION LTD V. CREEK ENTERPRISES (1985) 3 NWLR (PT. 13) 407.

Finally, the Appellant urge this Honourable Court to reject the submissions made in respect of the failure to ascribe probative value to Exhibit “D1-D4” when there was no negative evidence of fact, or dispute in law against the Exhibits, and allow ground one of grounds of appeal.

ISSUE III
The Appellant argued that the Respondent relied on Rule 29(1) of the Code of Ethics to submit that the Appellant failed to carry out the procedure required in spite of Exhibit C before the Tribunal. The Appellant submits that this Rule applies during the course of transfusion and not after as there is no evidence that anything went wrong in the course of the transfusion or the course of death arose from the transfusion nor was there evidence to show that the transfusion was not supervised according to the Rule, allowing the patient to go home, where she stayed overnight cannot be suggestive of breach of the Rule(1) of the Code of Ethics as prosecution led no evidence that when the therapy was going on, there was no qualified clinician within sight of the patient.

The Appellant further argued that it was alleged that the prosecution discharged its burden by tendering and relying on the case note (Exhibit “C”) of the Appellant however, the Appellant’s case note does not contain any facts upon which the Respondent’s case can rest on and if the Tribunal relied on it, there would be no conviction of the Appellant. The Appellant submits that the Respondent should have identified the point in the case that shows that the Appellant conducted himself in a very infamous manner as submitted in its brief. Also, the Appellant submits that the Respondent argued that there was no need to prove the case beyond reasonable doubt, the question is whether there was any proof at all, according to the Appellant when the prosecution tendered Exhibit “C”, the Appellant’s answer was via Exhibit “A”. The Respondent’s submissions have no support under the Evidence Act, particularly Section 135(1). Any conclusion based on speculation cannot be allowed to stand as stated in OVERSEAS CONSTRUCTION LTD V. CREEK ENTERPRISES (1985) 3 NWLR (PT.13) 407. The Appellant urge the Court to reject the submissions made in support of the failure to ascribe probative value to Exhibit “D1”-“D4” when there was no negative evidence of fact, or dispute in law against the exhibits, and find for the Appellant and allow the appeal.

RESOLUTION
Upon a careful consideration of the Notice of Appeal, the Record of Appeal and the respective briefs of learned Counsel for the parties, the Court shall adopt the issues donated by the Appellant which were adopted by the Respondent for resolution in this judgment. The Appellant for his convenience argued issue one last. 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.

Issue one contends that the charge referred to the Tribunal by the Investigative Panel and upon which the Appellant was tried was not part of the investigative Panel’s work and therefore, it could not have been referred to the Tribunal. The Tribunal’s jurisdiction is circumscribed by law as provided by Section 15(1) of the Medical and Dental Practitioner Act, Cap M8, LFN which states thus:
“The Tribunal shall be charged with the duty of considering and determining any case referred to it by the Panel established under Subsection (3) of this section and any other case of which the Disciplinary Tribunal has cognizance under the following provisions..”
The said Section 15(3) which created the Panel gave it 4 categories upon which it can investigate but the one relevant to this appeal is Subsection 3(a) which says:
“3. There shall be established a body to be known as the Medical and Dental Practitioners Investigation panel (hereinafter in this Act referred to as “the panel”) which shall be charged with the duty of:
(a) Conducting a preliminary investigation into any case where it is alleged that a registered person has misbehaved in his capacity as a Medical Practitioner or Dental Surgeon, or should for any other reason be the subject of procedures before the Disciplinary Tribunal.”
The argument of the Appellant is that the charge under which the Appellant was found guilty was not investigated by the Investigative Panel and therefore, the Tribunal’s findings had no foundation and is therefore incompetent.

The charge forwarded to the Tribunal as can be seen at page 1-2 of the
Record of Appeal says:
“CHARGE
That you Dr. Iheaonu Nwaogu Obineche a registered Medical Practitioner, Consultant Obstetrician and Gynaecologist engaged as such at Belmount Specialist Hospital, Kaduna, Kaduna State was negligent in your management of Hafsat Lawal (deceased) whom you admitted in your said Hospital on 21st September, 2007 for the purpose of undertaking major surgical procedures of myomectomy and tuboplasty and that you proceeded to perform the said surgery on the patient without carrying out any proper preoperative checks or at best carrying out any proper pre-operative checks in a most perfunctory manner resulting in the patient dying on your operation table during surgery and that by the said fact you have conducted yourself infamously in a professional respect contrary to Rules 28 of the Rules of Professional Conduct for Medical and Dental Practitioners in Nigeria (2004 edition) and punishable under Section 16(1) (a) and (2) of the Medical and Dental Practitioners Act, Cap M8 Laws of the Federation of Nigeria, 2004.”

The Appellant argued strenuously that the charge is defective because of duplicity or uncertainty as to which of the 3 named conducts the Appellant was to defend. Though, the trial was not strictly a criminal trial, it was a professional disciplinary trial and we can draw analogy from criminal trials because there is a charge in both trials. 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. It is also trite that a person standing trial is expected to raise an objection to a defective charge at the earliest opportunity which is when taking his plea, see AMEH V STATE (2018) LPELR-4463(SC) which held as follows:
“Notwithstanding the above scenario, the appellant did not challenge the competence of the charge when or before plea was taken. The law is quite clear that objection to the charge must be taken before or at the time plea is to be taken, and not thereafter. See Section 167 of the Criminal Procedure Act, Cap 43. This Court, in Adio v. The State (1986) 3 NWLR (PT. 31) 714, also reported in (1986) LPELR – 184 (SC) at pages 27 – 28 paragraphs G – D held as follows: “The proceedings against the accused commences with the filing of the information. This is why any objection to a formal defect in the charge should be taken before plea, otherwise, the objection is taken as having been waived – (See S. 167 Criminal Procedure Act, Cap 43). Similarly a want of jurisdiction which ordinarily could be raised at any stage of the trial is better raised before plea is taken. See R V. Adiukwu (1939) 5 WACA 132. The plea of the accused may, if it is one of guilty of the offence charged, result in the conviction and sentence of the accused at the end of the trial, unless there is sufficient cause to the contrary – (See S.218 Criminal Procedure Act, Cap 43). This procedure cannot be correctly described as a trial without a hearing. It is important that the accused must himself plead to the charge or information – See R. V. Hayes (1951) I K.B. 94…” See also Attah v. The state (2010) LPELR – 597(SC), Agbo v. The State (2006) 6 NWLR (pt. 977) 545, Adekunle v. The State (2006) 14 NWLR (pt. 1000) 717. The law is trite that a convict cannot hang on mere irregularity of Procedure (if any) to gain acquittal unless he can show that such irregularities in procedure led to substantial miscarriage of justice.” 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.
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. To further contend that the charge was not what was before the Investigative Panel is totally wrong, it was the Chairman of the Investigative Panel that framed the charge and forwarded same along record of the complaint in the form of affidavit and the Appellant’s Counter affidavit to the Tribunal. The Panel could charge for any infraction made out by evidence before it. It must not necessarily be the exact complaint brought by a non medically trained person. I have gone through the record and found the Appellant was before the investigative Panel on a complaint. The duty of the investigative Panel was to gather evidence and when and if a prima facie case has been made out, transmits the record with a charge to the Tribunal for trial. In any case, as observed earlier, the Appellant did not complain that he was misled by the charge or that the form of the charge occasioned him a miscarriage of Justice. The reference went through the investigative process, I think the Appellant is being technical in addressing this issue and failing to admit that the most important issue is whether the charge was proved so as to lead to a finding of guilty.

A prima facie case was all that was required for a valid reference to the Tribunal the question whether it was proved is the most relevant and it shall be resolved under the other two issues to be considered.

Moving on to issue 2 which queries the refusal of the Tribunal to evaluate Exhibits D1 –D4 tendered by the Appellant during trial on the ground that it was coming long after the investigation and therefore suspicious. The Appellant proffered an explanation and said the Kaduna State Government after the incident, took all documents, folders and records of the deceased from the hospital and demand for its return fell on deaf ears. And that when some were returned others remain missing and that explains why he (Appellant) was using photocopies of the documents in the patients file. The learned Counsel to the prosecution in his brief referred to evidence that was not before the Tribunal, no matter how eloquent a brief is, it cannot take the place of evidence which must be on record before the Tribunal, see ADEGBITE & ORS V AMOSU (2016) LPELR- 40655(SC) where it was succinctly said:

“My lords, address of counsel however brilliant can never take the place of evidence.” Per MUHAMMAD, J.S.C.
The Tribunal in its judgment at page 138 of the record said thus:
“it is the opinion of the Tribunal that exhibits D1-D4, even if they were kept separately, requests for such investigation ought to have been entered in the case note. The tribunal sees the case note of the deceased patient as a vital document in this case. The tribunal holds seriously that those requests and the results thereof (i. e Exhibits D1 – D4) were an afterthought”.
However, during proceedings both Counsels examined the Appellant particularly the Prosecuting Counsel who vigorously cross examined the Appellant on the documents. The quarrel of the Tribunal was that the documents were tendered during defence and not during investigation. It is trite that Investigating Panel did not try the Appellant but was merely investigating to see if a prima facie case would be established. So trial commenced fully at the Tribunal where the arraignment took place. After the case for the Respondent or prosecution, the Appellant was called to defend himself and he presented additional documents in defence of the charge, was cross examined but the Tribunal with a wave of the hand discountenanced the documents on the excuse that they were an afterthought inspite of the explanation offered. The Appellant was to defend himself during the investigation and explained that the documents were not available during the investigation. The party that withheld evidence was the Respondent (through the Kaduna State Government) that carted away all relevant documents from the premises of the Appellant. He was denied relevant materials for his defence. The Tribunal is bound by law to evaluate evidence duly presented by parties in any trial, see ATUYEYE &ORS V ASHAMU (1987) LPLER-638 (SC) where the apex Court had this to say:
“The trial Court has a legal duty to properly evaluate the evidence led on both sides before coming to a decision, which decision must inevitably be based on the totality of the evidence thus properly appraised or evaluated. If it fails in this duty it commits an error of law. The party aggrieved can then appeal on the ground of error in law giving as his particulars of error the failure to properly assess or evaluate or appraise the evidence led by and on his behalf.” Per OPUTA, J.S.C.

The error is fundamental because it denied the Appellant of his full defence to the charge and thereby excluding evidence before it in arriving at the decision, thus, making it perverse, arriving at a decision after excluding part of the evidence is perversity and a perverse decision cannot stand but must be set aside, see OLANIYAN & ORS V FATOKI (2013)LPELR-20936(SC) which explained circumstances that can make a decision or finding perverse, it held:
“decisions being reviewed on appeal are interfered with only where the appellate Court finds them perverse. A finding of fact or decision said to be perverse when it runs counter to pleadings and evidence on record or where the Court which finding or decision is being reviewed is shown to have taken into account matters which it ought not to have taken into account or shut its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of justice. SeeAdimora v. Ajufo(1988) 3 NWLR (part 80) 1 and Yaro v. Arewa Construction Ltd.”

Denying a Defendant of materials for his defence is denial of justice and the Court will not stamp such glaring injustice. Why was the Tribunal eager to exclude evidence properly on record? Miscarriage of justice simply means justice miscarried or failure 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.”
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.

The third issue questions the propriety of the guilty verdict against the Appellant. Having found that the trial occasioned a miscarriage of justice against the Appellant, the verdict cannot be justified or be allowed to stand. Reviewing evidence before the Tribunal, it found thus:
“In the circumstances, after reviewing evidence it is noted that there was failure on the part of the doctor to do anything that ought reasonably to have been done for the good of the patient. This amounts to infamous conduct contrary to Rule 28 instead of Rule 29.4 (h) of the code.”

The evidence allegedly reviewed was a one sided review carried out by the Tribunal having jettisoned relevant document presented by the Appellant as additional materials. The trial was not one conducted on pleadings and therefore, one would ask at what stage was the presentation of evidence closed so as to make Exhibit D1-D4 afterthought? The Appellant tendered the documents in defence so when they were discountenanced, was the Appellant allowed or given the opportunity to fully defend himself? Furthermore, the Panel’s report, the basis of the charge was not before the Tribunal so the basis upon which the charge was premised was lacking and therefore no foundation upon which the charge could stand. The burden was on the prosecution to prove the allegation against the Appellant by evidence and not otherwise. We still practice the accusatorial system of inquisition and therefore, the Appellant was not under duty to prove his innocence and the burden placed on him by the Tribunal to do so was wrong and an error in law. 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.

The entire trial fell below required standard and it must be set aside. I agree with the Appellant that the prosecution failed to present cogent evidence to justify the guilty verdict. I find for the Appellant under issue three.

Having resolved issues 2 and 3 in favour of the Appellant and even though issue one was resolved against him, 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.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother, YARGATA BYENCHIT NIMPAR, JCA, allowing the appeal.

The Respondent alleges misconduct on the part of the Appellant who allegedly failed to follow the appropriate procedures before performing surgery on the deceased, particularly while transfusing blood to the deceased. However, the Respondent failed, refused or neglected to lead evidence to show what the proper procedure is. The Appellant in his defence still went ahead to proffer evidence of the procedure he followed in Exhibits D1-D4. Rather than rebut these pieces of evidence as required by law, the Respondent asked the Hon. Members of the Tribunal to discountenance these pieces of evidence and rely on their professional experience and training which the Tribunal did. This practice is completely alien to the adjudicatory process. The principles of natural justice and fair hearing are also binding on Tribunals as succinctly stated by the Apex Court in the case of DENLOYE V. MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1968) LPELR-255526(SC) thus;
“For the appellant it was submitted that the appellant was entitled to an adequate opportunity to know the case he has to meet and failure to supply him with a full statement of the facts or evidence upon which the Panel and the Tribunal relied was a denial of justice and a breach of the rules of natural justice.
We must point out for the benefit of the Tribunal concerned that like any other Tribunal of this nature, it is entitled to decide its own procedure and lay down its own rules for the conduct of enquiries regarding discipline- seeR. v. Central Tribunal: Ex Parte Parton 32 T.L.R. 476. It is of the utmost importance that the enquiry be conducted in accordance with the principles of natural justice; in the case Russell v. Duke of Norfolk and Others. 6 [1949] 1 All E.R. 109 at p. 118, Tucker L.J. (as he then was) said- ‘The requirement of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with and so forth.
Surely the appellant in the present case was entitled to know the nature of the evidence given against him on 7th August, 1967 and it was wrong to withhold this evidence from him. Referring to such right, the Privy Council in the case of Kanda v. Government of the Federation of Malaya [1962] A. C. 322 at p.337, said- “If the right to be heard is to be a real right which is worth anything, it must carry with it right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a far opportunity to correct or contradict them.
Here, we must hold that the circumstances surrounding the taking of evidence on 7th August, 1967 and the subsequent conduct of the Panel in regard to the evidence and unfortunately, the withholding of the evidence by the Tribunal until such time as it was released constitute a denial of justice to the appellant. “Per ADEMOLA, J.S.C.
It is true that the Hon. Members of the Tribunal are Medical Practitioners and Professionals. However, the Hon. Members of the Tribunal sat as Judges not only in their professional capacities and to expect them to serve as expert witnesses for the Respondent is stretching the law beyond its bounds. It is not the duty of the Tribunal to provide expert evidence in proof of the Respondent’s case, this would amount to descending into the arena which is unacceptable for an unbiased umpire. The law is unequivocal that he who alleges must proof and a Judge is required to adjudicate on disputes strictly based on the evidence placed before it by both parties without going on a frolic of its own. The Hon. Members of the Tribunal fell into error when they discountenanced the evidence adduced by the Appellant and relied rather on their own experience which had not been tested under cross examination.
The Appellant having been denied of some vital documents requisite for the preparation of his defence cannot be said to have been constitutionally ensured his rights in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He was clearly denied his constitutionally guaranteed right to fair hearing.
Consequently, I too hereby allow this appeal. I wholly adopt as mine, the orders made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

CHIEF MIKE AKAMBASAN, with him, EUCHARIA NWANKPA, ESQ. For Appellant(s)

CHIEF MIKE AKAMBASAN, with him, EUCHARIA NWANKPA, ESQ. For Respondent(s)