DR. OBIOMA AZUBUIKE OKEZIE V. CHAIRMAN, MEDICAL & DENTAL PRACTITIONER DISCIPLINARY TRIBUNAL
(2010)LCN/3748(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of April, 2010
CA/L/206/2005
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
DR. OBIOMA AZUBUIKE OKEZIE Appellant(s)
AND
CHAIRMAN, MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL Respondent(s)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CIVIL OR CRIMINAL PROCEEDINGS
By virtue of Section 138 (1) and (2) of the Evidence Act, Cap 112, Laws of the Federation of Nigeria 1990, if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt and the burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Adamu v. A. G. Bendel State (1986) 2 NWLR (Pt. 22) 284; Akpan v. State (1990) 7 NWLR (Pt. 160) 101; Ojukwu v. Mil. Gov. Lagos State (1985) 2 NWLR (Pt. 10) 806. The burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt, and must also discharge a general duty of rebutting the presumption of innocence constitutionally guaranteed to the person accused of the commission of the crime. For Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. This burden on the prosecution never shifts. See Alabi v. The State (1993) 7 NWLR (Pt.307) 511; Solola v. State (2005) 11 NWLR (Pt.937) 460. PER GALINJE, J.C.A.
THE DUTY OF THE PROSECUTION TO CALL VITAL WITNESSES
It is the duty of the prosecution to call all vital witnesses whose evidence will help the Tribunal reach a just decision. Although, the prosecution needs not call a host of witnesses on the same point, where there is a vital point in issue and there is a witness whose evidence will settle it one way or the other that witness ought to be called. In the instant case, some of the vital points raised by the Tribunal could only be put in evidence by relevant professional medical practitioners. These experts were not called as witnesses by the prosecution. The Tribunal’s reliance on those facts that were not part of evidence upon which cross examination were conducted, amount to descending into the arena and setting out cases for parties. The conduct of the Tribunal clearly raised some dust which ultimately blurred its vision, the result of which has led to miscarriage of justice. See Erelu v. Queen (1959) WNLR 77; Omogodo v. State (1981) 5 SC 5. PER GALINJE, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
The evaluation of evidence is primarily the function of the trial court or the tribunal. It is only where and when it fails to evaluate such evidence and justifiably appraise the facts that the appellate court will interfere with the findings and substitute its views. See Agbi-Ogbeh (2006) 11 N.W.L.R. (pt.990) 65 S.C; Fagbenro v. Arobadi (2006) 7 N.W.L.R. (pt.978) 174 S.C. Where the findings of the tribunal are perverse such as in the following circumstances:
1. Where it is unsupported by evidence or
2. It is contrary to the evidence before the tribunal or
3. Where the court took into account matters which it ought not to have taken into account the appellate court will interfere with the findings and evaluation of Evidence by the Tribunal. See Ebba v. Ogodo (1984) 1 S.C.N.L.R. 372; Odofin v. Ayoola (1984) 11 SC 72; (2009) 11 N.W.L.R. (Pt.1151). PER NWODO, J.C.A.
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): The Appellant herein, Dr. Obioma Okezie, a registered Specialist Obstetrician and Gynaecologist, and a lecturer at the University of Nigeria Teaching Hospital (UNTH) Enugu, owned and operated a hospital called Christian Miracle Hospital at 11B John Nwodo Close, G.R.A. Enugu. Sometimes in September 1998, he successfully carried out fibroid surgery on Mrs. Nwiru Obiekwe (now deceased) with the consent of her husband, Dr. Ifeanyi Obiekwe, who is also a Medical Doctor. Before this surgery, Mrs. Obiekwe had complained of infertility and miscarriage and had had a myomectomy in England in 1996. Two years after the surgery, Mrs. Obiekwe became pregnant and approached the Appellant in his private clinic to be her doctor for the purpose of antenatal care. During the antenatal care, the Appellant found that the deceased could only be delivered through caesarian operation and this was fixed for 23rd February, 2001. The operation commenced at 12.11 noon on the day in question with the husband of the deceased in attendance. Dr. Obiekwe photographed the proceedings during the surgery. The operation was completed at about 1.45 pm and the patient was moved to the ward. However at about 4.20 pm the condition of the deceased changed for the worse. The Appellant who was recalled from his house within the same vicinity where he went to have his lunch in turn called Dr. Obiekwe, the husband of the deceased to report immediately with all that he had for the resuscitation of the life of his wife.
The Appellant set in motion measures to save the life of the deceased by introducing blood transfusion and other measures to no avail. By 8.00 pm. The Appellant pronounced the deceased dead. Dr. Obiekwe the deceased’s husband asked for autopsy to be performed on the deceased and this was done accordingly. However, Mrs. Cecilia Chukwuogor, and Mr. Nnemeka Chukwukelu Chukwuogor, the deceased’s mother and brother respectively suspected foul play in the death of the deceased and therefore petitioned the Medical and Dental Practitioner Disciplinary Tribunal. After preliminary investigations, the Appellant was then arraigned before the said Tribunal on the following charges: –
“That you Dr. Obioma Azubike Okezie a registered specialist obstetrician and gynaecologist engaged as such at an unregistered institution known as Christian Miracle Hospital, 11B John Nwodo Close GRA Enugu was negligent in the manner you attended to one Mrs. Nwiru Obiekwe (deceased) on or about 23 February, 2001 in that:
1. Before, during and after the obstetric operation of caesarean section which you performed on the said Nwiru Obiekwe, you failed to secure the professional services of an anaesthetist and also of qualified registered nurses to provide necessary professional care as required during the period for the patient;
2. In the preoperative, intra-operative and Postoperative management of the said Mrs. Nwiru Obiekwe, you ignored the high risk factors in the said patient, who being an elderly primigravida with a history of a previous abdominal scar, from myomectomy, low lying placenta and transveae lie of foetus by not providing intra-operative and postoperative care for her in an institution with requisite facilities terms of professional and paraprofessional personnel, equipment and consumables for resuscitative measures to the detriment of good care for the said patient;
3. At the time of the operation and immediate postoperative period, you failed to provide cross-matched blood and oxygen which would have been used to resuscitate the patient at the time of impending respiratory failure which eventually set in postoperatively;
4. In the immediate postoperative period, there was no qualified professional nurse or medical practitioner to monitor the vital signs and provide care even whilst the patient was still unconscious.
5. And in the alternative, you failed to make yourself available to provide requisite postoperative care, including monitoring of the respiration, cardiovascular action and level of consciousness to the unconscious patient”.
The Appellant pleaded not guilty to the charges. During the trial, two witnesses were called for the prosecution, while the Appellant gave evidence in his own defence. Thereafter, counsel on both sides filed written addresses, which they subsequently adopted.
In a reserved and considered judgment the seven members Tribunal chaired by Dr. S.S. Gyoh found the Appellant guilty of infamous conduct with respect to the element of the charges and was suspended from practice for six months.
It is against this decision that the appellant has appealed to this court. His notice of appeal at page 165 of the record of appeal contains five grounds of appeal, which I reproduce herein below without their particulars as follows:-
“1. The Honourable Tribunal erred in law when in the absence of the expert testimony in rebuttal, it queried and rejected in its entirety, the professional testimonies of the Defendant Doctor’s autopsy reports and ultra sound report.
2. The Honourable Tribunal erred in law when it based its judgment against the Defendant Doctor in part on his comportment.
3. The Honourable Tribunal misdirected itself when it ignored Exhibit ‘4’ which was evidence that use of Ketamine anaesthesia dispensed with the need for an obstetric anaesthetist at the operating theatre and went on to hold that absence of an obstetric anaesthetist was evidence of negligence on the part of the Defendant doctor.
4. The Honourable Tribunal misdirected itself when it held that at the time of the operation and in the immediate post-operative period the accused doctor failed to provide cross matched blood and oxygen which would have been used to resuscitate the patient at the time of impending respiratory failure which set in post operatively.
5. The Honourable Tribunal misdirected itself when it held that in the immediate post-operative period, there was no qualified nurse or medical practitioner to monitor the vital signs and to provide care even whilst the patient was still unconscious; and in the alternative, that the Defendant doctor failed to make himself available to provide required post operative care.”
Learned counsel for both parties filed and exchanged briefs of argument. The Appellant formulated four issues for the determination of this appeal at page 5 of his brief of argument. These issues read as follows:-
“(a) Although the tribunal was composed of fully registered medical practitioners and the professional competence of the appellant was in question, whether the Honourable Tribunal was right when it substituted or replaced evidence which was required in proof of the charges against the appellant with the opinion of its members borne of their professional knowledge experience, skill or expertise?
(b) Did the Honourable Tribunal pronounce on all material issues before it. And if it did not, whether this did not occasion a miscarriage of justice?
(c) As a corollary, did the Tribunal comply with the rules of fair hearing and trial as required of a quasi-criminal trial, when it ignored in its entirety, Exhibit ’10’ which was a book by a leading gynaecologist and obstetrician in Nigeria, Dr. Kayode Obembe without any evidence whatsoever to the contrary; and whether, this did not occasion a miscarriage as (sic) justice.
(d) Was the Honourable Tribunal below right, and not biased when it based its decision, in part on the Appellant’s looks carriage (sic), comportment and physiognomy during trial as well as prayer session for patient during emergency: and whether this did not create bias in the mind of the tribunal and thus a miscarriage of justice.
For the Respondent the following issues were formulated at page 2 of the Respondent’s brief as follows:-
“(1) Whether or not the decision of the Honourable Tribunal was based on the evidence before it. (2) Whether or not the decision of the Honourable tribunal was based on the Appellant’s looks carriage, comportment and physiognomy during trial as well as prayer sessions.
(3) Whether the Honourable Tribunal did consider the evidence placed before it and pronounce on all the material issues.
(4) Whether or not the Tribunal misdirected itself when it held that at the time of the operation the Appellant failed to provide cross-matched blood and oxygen and that there was no qualified nurse or medical personnel to monitor the vital signs and to provide care for the deceased patient, post-operatively.”
The issues formulated by the appellant and the ones formulated for the Respondent are similar. However, after reading through the record of this appeal and the parties’ briefs of argument, I am of the firm view that the only issue calling for the determination of this appeal is whether the decision of the tribunal was based on the evidence before it.
Mr. Akaraiwe Esq. counsel for the Appellant, who settled the Appellant’s brief of argument submitted that the tribunal based its decision on the professional opinion of its members and not upon the charges or issues raised before it.
Learned counsel cited several instances where the tribunal relied on the professional opinion of its members and further submitted that the legal duty or burden of adducing evidence to prove a charge against an accused is on the prosecution and it can be discharged by evidence of witnesses or the accused himself. In aid learned counsel cited sections 135 (1) and 136 of the Evidence Act, and the authority in Akintade V Chairman, MDPDT (2005) All NWLR (Pt. 930) 338 at 358 paragraph A; Okoroji V State (2002) 4 NWLR (pt. 759) 21; Markayo V FRN (2003) 1 F.W.L.R (Pt. 86) 106.
On whether the Tribunal pronounced on all the material issues raised before it, learned counsel submitted that the Tribunal did not pronounce on all the issues raised before it. Learned counsel enumerated the issues which were raised and the Tribunal failed to pronounce on same as follows:-
“(a) Evidence of Ifeanyi Obiekwe, the husband of deceased who is himself a medical practitioner, which was admitted as exhibit ‘5’.
(b) Appellant’s evidence on pre-operative, and post-operative care as well as provisions made before during and after the operation.
(c) Appellant’s evidence that he had four nurses attached to the hospital.
(d) Appellant’s evidence of his effort to register his clinic, which effort predated the death of the patient, but which were eventually successful after her death.
(e) Exhibit ’10’, a book written by Kayode Obembe on the use of ketamine anaesthesia.”
Lastly the Appellant submitted that the Tribunal was biased when it based its decision in part on the Appellant’s looks, carriage comportment and physiognomy during the trial and the prayer session. Learned counsel contended that the finding of the Tribunal on this score was not supported by evidence and same therefore occasioned a miscarriage of justice. Learned counsel finally urged this court to allow the appeal and quash the decision of the lower court.
Mr. Oputa-Ajieh, Learned counsel for the Respondent, who settled the Respondent’s brief of argument submitted that what the tribunal did in its judgment was a review of the entire facts and pieces of evidence adduced in the case clause by clause to show that the conclusion as stated by the Appellant could not be true. According to the learned counsel, the tribunal adopted this pattern in order to expose the weaknesses in the Appellant’s defence.
In a further argument, learned counsel submitted that the Tribunal relied on the professional judgment of its members as medical practitioners to weigh the evidence of the prosecution witnesses side by side with the Appellant’s evidence.
On the attitude of the Appellant during the trial, learned counsel submitted that the Tribunal’s remarks on the Appellant’s looks, carriage, comportment and physiognomy are mere orbiter dicta as such they did not form part of the ratio decidendi. Learned counsel made reference to the definition of ratio decidendi in the case of Afro-Continental (Nig) Ltd V Ayantunji (1995) 9 NWLR (Pt. 420) 411 at 435 paragraph D-E. Learned counsel then contended that since these remarks are mere obiter dicta, they cannot be a ground of appeal.
On the issue of exhibit ’10’, the book by Dr. Kayode Obembe, Learned counsel submitted that Ketamine can only be used in emergency cases in surgery and not scheduled cases as in the instant case. Learned counsel gave the title of the book as ‘Katamine Anaesthesia in Emergency Caesarean Section’ and insisted that in all elective cases as in the instant case, Medical Practitioner should at all material times have an Anaesthesist in attendance. Learned counsel concluded on this issue that if an Anaesthesist had been around on the date the surgery was performed he would have done everything possible to revive the deceased as this is his area of specialization.
Finally on this issue, learned counsel submitted that there was sufficient evidence before the tribunal that the hospital was poorly equipped and that the Appellant failed to produce the nurses book which the deceased’s vital signs were recorded. In conclusion learned counsel urged this court to dismiss the appeal.
When Mrs. Cecilia Chukwuogor and Mr. Nemeka Chukwuogor lodged their complaints, an investigating panel was set up. All the exhibits tendered and admitted at the panel were tendered through Mr. David Babalola Adesua and were admitted by the Tribunal. The procedure and the purpose for the admission was explained by Mr. Kaseem, learned counsel for the prosecution at page 6 of the record in the following words:-
“Sorry my learned friend let me enlightened (sic) you on this, the normal procedure and the rules of this Tribunal, is that all materials and exhibits that were considered by the investigating panel, tendered by both parties, both the complainant and the respondent doctor must be tendered before this Tribunal. They have already been admitted by the Investigating Panel, in the process. We now have a duty to turn over to the tribunal and when the witnesses come, each of them would identify his own exhibit and give evidence on them, that is the rule”.
So the counsel on both sides are aware that even though the documents and evidence of the parties are admitted by the tribunal in evidence, parties who testified before the investigating panel and tendered documents, must appear before the Tribunal, identify their written statement and documents tendered by them in their evidence and be cross examined. Any of the witnesses, who fails to give evidence before the Tribunal, his written statement and the document tendered by such witness are of no evidential value as same are deemed abandoned.
Now the allegation against the Appellant at the Tribunal is criminal in nature. That is why charges were framed against the Appellant who pleaded not guilty to all of them. By virtue of Section 138 (1) and (2) of the Evidence Act, Cap 112, Laws of the Federation of Nigeria 1990, if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt and the burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Adamu v. A. G. Bendel State (1986) 2 NWLR (Pt. 22) 284; Akpan v. State (1990) 7 NWLR (Pt. 160) 101; Ojukwu v. Mil. Gov. Lagos State (1985) 2 NWLR (Pt. 10) 806.
The burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt, and must also discharge a general duty of rebutting the presumption of innocence constitutionally guaranteed to the person accused of the commission of the crime.
For Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. This burden on the prosecution never shifts. See Alabi v. The State (1993) 7 NWLR (Pt.307) 511; Solola v. State (2005) 11 NWLR (Pt.937) 460.
The key witness for the prosecution is Mrs. Chukwuogor, the mother of the deceased. At the age of 16 she was admitted to read nursing, a course she did not complete when she switched over to book keeping. She is now about 70 years. She is therefore not a medical practitioner and therefore not competent to testify on the professional competence of the accused person in this case. The second prosecution witness Nnemeka Chukwukelu Chukwuogor is an Engineer by profession and his testimonies are based on what he was told by PW1, his mother. He is also not a medical practitioner, and can also not give evidence on the professional competence himself.
The Chairman and members of the Tribunal in the instant matter are sitting as judges whose pre-occupation is to determine the dispute between the complainants and the accused. They should therefore do nothing of their own arbitrary will, nor on the dictate of their own personal inclination, but should decide according to law and justice only, and in the process, they must be fair to both sides and avoid taking decisions based on evidence not properly placed before them. The Tribunal in its comments on placenta Previa and Transverse Lie commented extensively on the report signed by ‘G. Afam’ of ‘Anum Medica Sonovision’ and the other report signed by Dr. S. A. Mgbor and concluded that the latter report is much more credible and raises the question of whether and if so, why the other (unreliable) report which appears to strengthen the indications for caesarian section was produced. Here G. Afam and Dr. S.O. Mgbor were not called to give evidence before the Tribunal and be cross examined on their qualification and competence and the source of their respective reports. Even though the reports were placed before the Tribunal by the secretary, they could only be acted upon if the makers were called as witnesses.
The failure by the prosecution to call these vital witnesses has rendered the two reports important and they carry no evidential value.
On the second comments on ‘All Purpose Sheets in the case notes’ the Tribunal commented on the one sheet of paper used to record antenatal care attention, the operation records and post operative visits. The prosecution did not call evidence in respect of this paper and never proved the contents thereof. The allegations raised therein were put to the Appellant who denied any wrong doing. This denial called for proof by the prosecution according to the standard of proof in criminal cases and this was not done.
On the 3rd comments by the Tribunal on myomectomy by the Appellant at the operation, the Tribunal said: –
“The operative record shows that the doctor not only removed the baby, and a placenta that he said was on the lower segment of the uterus, he also removed a fibroid that was on the same lower segment. This was a highly dangerous and irresponsible thing to do. It might have contributed to the heavy bleeding seen by the patient’s mother that led to the patient’s death …”
The conclusion reached by the Tribunal here is speculative, because no expert evidence was called to reveal the cause of death of the deceased. PW1 as I have elsewhere in this judgment said is not a medical practitioner and therefore not competent to pronounce on areas reserved for professionals only, was not competent to give evidence as to the cause of death of the deceased. The question as to whether the placenta, the baby and the fibroid were removed at the same time could only be answered by a professional through a post mortem examination on the deceased. The post mortem report which was tendered and admitted as exhibit ‘7’, was prepared by Dr. D.B. Olusina, and it is dated 19th April, 2009. In its judgment the Tribunal held the post mortem report to be fake without inviting the maker of the Report to throw light on how he arrived at the contents of the report and his qualification and competence.
On the status of the registration of the Hospital, the Appellant gave evidence that he paid N1,600.00 as registration fee and the Enugu State’s Government Ministry, responsible for registration of hospitals had given him go ahead to get the hospital functional before the next visit. Appellant tendered the receipt. This fact was not verified by the Tribunal through the prosecution. What the prosecution required was to have invited an official of the ministry to verify the story, since the burden of rebutting this story was on its shoulder. Even though the certificate of registration of the Hospital was only obtained after the death of the deceased, the process of registration was on before she was admitted for surgery at the hospital. The prosecution’s failure to call the officials of the ministry responsible for registration of Hospitals in Enugu State is fatal to the prosecution’s case.
From my assessment of the findings of the Tribunal, I agree with the learned counsel for the Appellant that the Tribunal relied heavily on the professional opinion of its members to arrive at its decision that the Appellant was guilty of infamous conduct, upon which it predicated its sentence of six months suspension of the Appellant from Medical practice. It is the duty of the prosecution to call all vital witnesses whose evidence will help the Tribunal reach a just decision. Although, the prosecution needs not call a host of witnesses on the same point, where there is a vital point in issue and there is a witness whose evidence will settle it one way or the other that witness ought to be called. In the instant case, some of the vital points raised by the Tribunal could only be put in evidence by relevant professional medical practitioners. These experts were not called as witnesses by the prosecution. The Tribunal’s reliance on those facts that were not part of evidence upon which cross examination were conducted, amount to descending into the arena and setting out cases for parties. The conduct of the Tribunal clearly raised some dust which ultimately blurred its vision, the result of which has led to miscarriage of justice. See Erelu v. Queen (1959) WNLR 77; Omogodo v. State (1981) 5 SC 5. On the whole, I find the decision of the Tribunal not supported by evidence. Accordingly this appeal is allowed. The decision of the Tribunal is hereby set aside and quashed. In its place, I enter a verdict of acquittal.
The Appellant is accordingly discharged and acquitted.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had read before now, the draft of the lead judgment delivered by the Hon, Justice Galinje, JCA. I agree with the reasoning and conclusion reached therein, to the effect that the appeal has merit.
I have adopted the said reasoning and conclusion as mine, and accordingly allow the appeal. The decision of the Medical and Dental Practitioners Disciplinary Tribunal, dated 04/3/05, is hereby set aside. I abide by the consequential order quashing the conviction and 6 months suspension passed on the Appellant, and in its place, entering a verdict of discharge and acquittal of the Appellant.
REGINA OBIAGELI NWODO, J.C.A.: I have been privileged to read in advance the Judgment of my learned brother, Galinje J.C.A. just delivered. I agree with his reasoning therein and the conclusion arrived thereat. The Tribunal just like the court must be circumspect and cautious in relying on and assigning probative value to evidence founded on professional opinion of its members. Decisions must be based on credible evidence. The evaluation of evidence is primarily the function of the trial court or the tribunal. It is only where and when it fails to evaluate such evidence and justifiably appraise the facts that the appellate court will interfere with the findings and substitute its views. See Agbi-Ogbeh (2006) 11 N.W.L.R. (pt.990) 65 S.C; Fagbenro v. Arobadi (2006) 7 N.W.L.R. (pt.978) 174 S.C.
Where the findings of the tribunal are perverse such as in the following circumstances:
1. Where it is unsupported by evidence or
2. It is contrary to the evidence before the tribunal or
3. Where the court took into account matters which it ought not to have taken into account the appellate court will interfere with the findings and evaluation of Evidence by the Tribunal. See Ebba v. Ogodo (1984) 1 S.C.N.L.R. 372; Odofin v. Ayoola (1984) 11 SC 72; (2009) 11 N.W.L.R. (Pt.1151).
In the instance appeal the Tribunal relied on facts which were not led in evidence before the court.
These extraneous matters cannot form the evidence for evaluation. The decision of the tribunal cannot be sustained. The appeal succeeds. I abide by the consequential Order on acquittal and the Appellant is discharged and acquitted.
Appearances
Mr. Ikeazor K. AkaraiweFor Appellant
AND
Mr. I. A. Oputa-AjiehFor Respondent
