ELUSOJI v. CHAIRMAN, MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL
(2022)LCN/16471(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, October 27, 2022
CA/ABJ/CR/115/2022
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
DR. SUNDAY O. ELUSOJI APPELANT(S)
And
THE CHAIRMAN, MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL RESPONDENT(S)
RATIO:
THE TRUE TEST OF FAIR HEARING
The true test of a fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case. We feel obliged to agree with this.”
See also the cases of Kim v. The State (1992) 4 NWLR (pt. 233) 17 AT 37; (1992) 4 SCNJ 81; Ntukidem v. Oko (1986) 5 NWLR (pt. 45) 909 and Union Bank of Nigeria Ltd & Anor. v. Nwaokolo (1995) 6 NWLR (pt. 400) 127 at 149,150 – per Onu, JSC, (as he then was; now Rtd.)”
The question is whether on the face of the indisputable record before this Court, Counsel for the Appellant can conscientiously contend that the Appellant’s right to fair hearing was breached by the Tribunal? It is instructive to note based on the record of appeal before this Court that there was never a time it was recorded that the said Uwa Osagie appeared before the Tribunal to testify on behalf of the Appellant and was denied such right by the Tribunal. THERESA NGOLIKA ORJI-ABADUA, J.C.A
THE EFFECT OF WRONG DATING OF A DOCUMENT
This Court in Okon vs. The State (2019) LPELR-47460(CA), per Ogbuinya, JCA., on effect of non-dating/wrong dating of a document, equally referenced the case of APC vs. INEC (supra) and remarked thus:
“To begin with, it is trite that non-dating of a process (especially notice of appeal) taints it with incompetence, see Adamu v. State (2017) 10 NWLR (Pt. 1574) 463. But, wrong dating of a judgment is a curable irregularity, See Japhet v. State (2016) 6 NWLR (Pt. 1509) 602. It is decipherable from the judgment, as dissected above, that the Judge of the lower Court made the alteration on its date of delivery – 22nd September, 2014. In APC v. INEC (2015) 8 NWLR (Pt. 1462) 531 at 567, I. T. Muhammad JSC, speaking for the Supreme Court, incisively and decisively, opined: Thirdly, it stands to reason that where a document has been signed and in it is provided a specific date of commencement or date when effect is to be given to or action to be taken, that date must be taken to be the ‘effective’ or commencement date irrespective of the date when the officer signing the document on behalf of the authority appended his signature. That specific date of commencement can be with retrospective effect, it may commence immediately after or on the date of signing or it may even be in the future.” THERESA NGOLIKA ORJI-ABADUA, J.C.A
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Appellant, a Professor of Surgery, in the employment of the University of Benin and a Consultant Surgeon in the University of Benin Teaching Hospital (UBTH) was initially arraigned before the Tribunal For The Trial Of Offences Under The Medical And Dental Practitioners Act, Cap. M8, Laws of the Federation of Nigeria, 2004 on a two Count Charge dated the 3rd October, 2014. The same was later amended to a four Count Charge dated the 8th December, 2020. By the Amended Charge the Appellant was charged as follows:
“Count 1
That you, Dr. Sunday Elusoji, a registered medical practitioner, and Consultant Surgeon engaged as such at University of Benin Teaching Hospital, Benin City, Edo State, on 10th March, 2013 and 11th March, 2013, engaged in Malpractice while attending to one Mr. Uwa Osage at your private health facility known as and called Our Medical Centre (a.k.a Our Hospital), located at No. 2 Jemila Road, Ikpoba Hill, Benin City, by failing to do all that you reasonably ought to have done for his good, and that by the said facts you have conducted yourself infamously in a professional respect contrary to the provision of Rule 29.4h of the Code of Medical Ethics in Nigeria 2008 edition and punishable under Section 16(1) (a)and(2) of the Medical and Dental Practitioners Act, Cap. M8 Laws of the Federation, 2004.
Count 2
That you, Dr. Sunday Elusoji, a registered medical practitioner, and Consultant Surgeon engaged as such at University of Benin Teaching Hospital, Benin City, Edo State, on 10th March, 2013 and 11th March, 2013, were grossly negligent in a management of one Mr. Uwa Osage in your private health facility known as and called Our Medical Centre (a.k.a Our Hospital), located at No. 2 Jemila Road, Ikboba Hill, Benin City, where he was admitted by you following the gunshot wound sustained, leading to the amputation of his right lower limb and that by the said facts you have conducted yourself infamously in a professional respect contrary to the provision of Rule 31 of the Code of Medical Ethics in Nigeria 2008 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.
Count 3
That you, Dr. Sunday Elusoji, a registered medical practitioner, and Consultant Surgeon engaged as such at University of Benin Teaching Hospital, Benin City, Edo State, on 10th March, 2013 and 11th March, 2013 engaged in malpractice in that although you admitted and managed one Uwa Osagie in your private health facility known and called, Our Medical Centre (aka Our Hospital), located at No. 2 Jemila Road, Ikpoba Hill, Benin City, you later pretended to have managed the said patient at the University of Benin Teaching Hospital, Benin City by issuing a Medical Report addressed to Whom It May Concern dated 22nd April, 2013 on the letter head of the University of Benin Teaching Hospital, Benin City and that by the said facts you have conducted yourself infamously in a professional respect contrary to the provision of Rule 34 of the Code of Medical Ethics in Nigeria 2008 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.
Count 4
That you, Dr. Sunday Elusoji, a registered medical practitioner, and Consultant Surgeon engaged as such at University of Benin Teaching Hospital, Benin City, EdoState, on 10th March 2013 and 11th March 2013, engaged in malpractice, by admitting into your private health facility known as and called Our Medical Centre (aka Our Hospital), located at No. 2 Jemila Road, Ikpoba Hill, Benin City, one Mr. Uwa Osage and performed in-hospital treatment to relieve or heal his gunshot wounds sustained earlier in the day at a time you were expected to be engaged or deemed to be engaged in your primary place of employment, that is, the University of Benin Teaching Hospital, Benin City and that by the said facts you have conducted yourself infamously in a professional respect contrary to the provision of Rule 49.1 (b) and (c) of the Code of Medical Ethics in Nigeria 2008 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 was arraigned before the Medical and Dental Practitioners Disciplinary Tribunal on the 7th December, 2020 and on which day, the Secretary to the Tribunal informed it of the two letters written by the defendant’s Counsel for dismissal of the petition before it based on an affidavit of withdrawal of petition said to be filed by the nominal complainant, that is, Mr. Uwa Osagie. The Tribunal ruled against the application and proceeded to take the plea of the Appellant. The Appellant pleaded not guilty to the four Counts.
On 9/12/2020, learned Senior Counsel for the Respondent informed the Tribunal of the Amended Charge which was read over to the Appellant and he pleaded not guilty thereto. Trial commenced in essence and one Dr. Enejo Abdu, the Secretary to the Medical and Dental Practitioners Investigation Panel, heading the Secretariat of the Panel, testified as PW1. He received correspondences for the Panel and keeps them. He presented the documents tendered as Exhibits 1-9. Exhibit 1 was the affidavit of Uwa Osagie. Exhibit 2, the counter affidavit of Pro. Sunday Elusoji; Exhibit 3, the affidavit of Dr. Christopher Ogahor; Exhibit 4, an affidavit of Uwa Osagie in reply to Dr. Christopher Ogahor’s affidavit; Exhibit 5, an official receipt from the Medical Centre; Exhibit 6 is a letter from Prof. Elusoji to whom it may concern on the headed paper of University of Benin Teaching Hospital; Exhibit 7, the Original case-note from “Our Medical Centre” in respect of Osagie Uwa; Exhibit 8, the case note of Uwa Osagie from Zion City Medical Centre, Benin Sapele Road, Benin City and Exhibit 9, the report of the Medical Dental Practitioners Investigating Panel addressed to the Secretary, Medical and Dental Practitioners Disciplinary Tribunal. He was not cross-examined on those documents.
It is instructive to note that no other witnesses testified on behalf of the prosecution in proof of the commission of the offences with which the Appellant was charged and not even the victim of the alleged offences.
The Appellant as the Respondent before the Tribunal testified for himself. Then on the 8th April, 2021, the Tribunal delivered its judgment and found the Appellant guilty on all the Counts and therefore ordered that the name of the Appellant, Dr. Sunday Elusoji be struck off the Register of Medical Practitioners in Nigeria.
The Appellant was disgruntled at the decision of the Tribunal that he filed his Notice of Appeal pivoted on ten grounds of appeal on the 3rd February, 2022. This can be seen at pages 1-7 of the record of appeal which was transmitted to this Court on 4/2/2022. In the course of hearing this appeal on 14/9/2022, the Appellant’s Counsel informed this Court that on 18/1/2022, this Court granted the Appellant leave to appeal against the said judgment, that is, the Direction or Order of the Tribunal.
The Appellant’s Brief of Argument was filed on the 21st March, 2022 and was equally served on the Respondent on that same 21/3/2022. The Respondent did not file the Respondent’s Brief of Argument. At the hearing of this appeal on 14/9/222, this Court was satisfied that both the Appellant’s Brief of Argument and hearing notice were served on the Respondent.
In the Appellant’s Brief of Argument, five issues were postulated by the Appellant for the determination of this Court. They read thus:
“1. WHETHER the Appellant’s Fundamental And Constitutional Right to fair hearing as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria was not breached when members of the Tribunal who did not take part in the proceedings on certain days took part in giving Directions against the Appellant? (Distilled from ground one of the grounds of Appeal).
2. WHETHER the Tribunal had jurisdiction to try the Appellant when less than 11 members sat throughout the trial and without two Dental Surgeons in the Panel as provided for by Section 15(2), 3(1) of the Medical and Dental Practitioners Act Cap. M8, 2004 Laws of Federation of Nigeria and Paragraph 3(1) of the Medical and Dental Practitioners (Disciplinary Tribunal) of the Second Schedule 19th March, 1993? (Distilled from ground 6).
3. WHETHER the Honourable Tribunal breached the Appellant’s right to fair hearing when they refused to allow the nominal Complainant Uwa Osagie to testify at the instance of the Appellant when the trial was in progress and thereby occasioned a miscarriage of justice? (Distilled from ground 5 of the grounds of Appeal).
4. WHETHER the sentence or Direction of the trial Tribunal to the effect that the name of the Appellant be struck off the Register of Medical Practitioners in Nigeria is not excessive, unwarranted and cannot be supported by evidence.
5. WHETHER the Respondent did not give two Directions on the same Charge No. MDPDT/67/2020 when it signed the said Direction on 7/4/2020 and delivered it on 8/4/2020 and thereby occasioned a miscarriage of justice.”
As I stated earlier, the Respondent failed to file its Brief of Argument in this appeal.
Learned Counsel for the Respondent, A. O. Edeki, Esq., proffered arguments in respect of the first three issues together and then contended that the Tribunal was not competent to try the Appellant in that the 8 member Panel that sat to take the Appellant’s plea was not properly constituted in line with paragraph 3(1) of the 2nd Schedule of the Medical and Dental Practitioners (Disciplinary Tribunal) Rules under paragraph 2 of the 2nd Second Schedule 19th March, 1993. He referred to paragraph 3(1) thus: “Whenever any case of professional misconduct against a Medical Practitioner or a Dental Surgeon is referred to the Tribunal by the Panel such a case shall be heard by the Chairman of the Council and ten other members of the Council appointed by the Council who shall include not less than two persons who are fully registered dental surgeons.”
He drew the attention of this Court to pages 150-186 of the record where it was manifestly shown that only 8 members of the Tribunal sat on 9/12/2020, and then submitted that for the Tribunal to be properly constituted, it shall have 11members inclusive of two Dental Surgeons. He contended that since only 8 members sat and conducted the affairs of the Tribunal on that day, the Tribunal lacked the jurisdiction to hear and determine the case and that since it was not properly constituted whatever judgment it gave is a nullity. He cited the cases of A. G., Lagos State vs. Dosunmu (1989) 3 NWLR Part 111 page 552, per Eso, JSC., and Madukolu vs. Nkemdilim (1962) ANLR Part 11 page 581 per Bairamian FJ, on the jurisdiction and competence of a Court, in support. He stressed that any defect in competence is fatal, for the proceedings are nullity however well conducted and decided.
He further referenced the constitution of the sitting of the 6th April, 2021 at pages 187-190 of the record where 9 members sat. He pointed out that Dr. Bola Alonge who was not present on 6/12/2021 was however present on 9/12/2021. He also made reference to the sitting of the Tribunal on 8/4/2021 which was constituted by 9 member Panel and highlighted that both Dr. Bola Alonge and Dr. Kolawola Obagbemuro never took part in the proceedings when the plea of the Appellant was taken and the hearing of the evidence of the witnesses conducted. He also referred to the sitting of the 8th April, 2021 at pages 191-203 of the record which constituted only 9 members. He cited the case of Nyesom vs. Peterside & Ors (2016) LPELR-40036, per Kekere-Ekun, JSC., where it was held that the opinion delivered must be the opinion of the Justices who participated in the hearing and that principle is applicable to any Court or Tribunal that sits in a Panel of two or more members. The case of Sokoto State Govt vs. Kamdex Nig. Ltd (2007) 7 NWLR Part 1034 page 466 was referred to therein where the judgment delivered was declared a nullity because a Justice of Court of Appeal who did not participate in the hearing of the appeal wrote and delivered the judgment therein. He further cited the cases of Ovunwo vs. Woko; Ogbobe & Ors vs. Oliji & Ors (2011) LPELR-4530(CA) Daughters of Divine Love Congregation &Ors vs. Ugwu & Ors (2016) LPELR-42124(CA) and submitted that the effect of breach of fair hearing is to set aside the judgment.
Touching on issue 3, Counsel contended that the Panel’s refusal to allow the victim of the crime to adopt his deposition withdrawing the complaint against the Appellant is a denial of his right to natural justice. He cited the cases of Orugbor & Ors vs. Aina & Ors (1997) 8 NWLR Part 16 page 225; Isiaku Mohammed vs. Kano N. A. (1968) 1 All NLR 424 and Olaniyan vs. University of Lagos (1985) 2 NWLR Part 9 page 599 and Otapo vs. Sunmonu (1987) 2 NWLR Part 58 page 587 in support of his assertion that it is a denial of his right to natural justice. He said that the Appellant procured the nominal complainant, Uwa Osagie from Benin to testify for him, to adopt the affidavit of withdrawal of his complaint but the Tribunal disallowed the withdrawal or adoption of the deposition because according to them they had enough evidence. He referred to pages 109 and 135 of the record of appeal. He then urged this Court to answer the three issues in the affirmative and set aside the conviction and Direction of the Tribunal.
On issue 4 which questions whether the sentence or Direction of the trial Tribunal to the effect that the name of the Appellant be struck off the Register of Medical Practitioners in Nigeria is not excessive, unwarranted and cannot be supported by evidence, it was submitted that the Tribunal misdirected itself by convicting the Appellant and giving such Direction. Learned Counsel argued that there was no evidence before the Tribunal to suggest that the surgery during which the leg of the said Uwa Osagie was carried out by the Appellant. He seriously asserted that the offensive surgery was performed by Dr. Awuze on 10/3/2013 and not by Prof. Elusoji, the Appellant. He said no life was lost during the surgery and in other cases where lives were lost, only six months suspension was handed down. He cited the case of UCH Board of MGMT vs. Morakinyo (2014) LPELR-23416 (CA) where it was held that injustice arises when equals are treated unequal and also when unequals are treated equal… Justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking the Judge was biased. He cited the Tribunal’s decision in the unreported case of MDCN vs. Dr. Adolphus vs. Oriafo delivered on 7/4/2021 wherein the patient therein died as a result of the professional negligence of the Doctor in question yet he was given a suspension of six months.
The fifth issue is: “Whether the Respondent did not give twoDirections on the same Charge No. MDPDT/67/2020 when it signed the said Direction on 7/4/2020 and delivered it on 8/4/2020 and thereby occasioned a miscarriage of justice. “Concerning the two dates of 7/4/2020 and 8/4/2020 which appeared on the Direction, he referred to the cases of Nigerian Navy &Ors vs. Labinjo (2012) 17 NWLR Part 1328 page 56 at 84; University of Lagos vs. Aigoro (1985) 1 NWLR Part 1 page 143; Wellington vs. Regd. Trustees Ijebu Ode (2000) 5 NWLR Part 647 page 130 Ake Properties Ltd &Ors vs. Adebisi George (2014) LPELR-22428 where it was held that a Judge cannot sign a judgment before it is delivered and where a judgment ex facie shows that it was delivered on a particular date and the same was signed on an earlier date, the entire judgment becomes a contradiction in terms that and that fact alone can constitute a ground of appeal. He argued that the date on the Direction contradicts the date it was signed and divested this Court of the jurisdiction to entertain this appeal. It was further contended that even if the error was a mistake on the part of the Tribunal, the Tribunal can only correct it if there is a clerical mistake in the judgment or order or there is an error arising from accidental slip or omission or it is necessary to do so to carry out its own meaning and to make its meaning plain. He repeated that the Direction was signed on 7/4/2021 while it was read on 8/4/2021, he then urged that the Direction be declared a nullity.
I shall now proceed to consider the first two issues projected by the Appellant herein which questioned the jurisdiction of the Tribunal to try the Appellant on ground of being improperly constituted. They are thus:
“1. WHETHER the Appellant’s Fundamental And Constitutional Right to fair hearing as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria was not breached when members of the Tribunal who did not take part in the proceedings on certain days took part in giving Directions against the Appellant? (Distilled from ground one of the grounds of Appeal).
2. WHETHER the Tribunal had jurisdiction to try the Appellant when less than 11 members sat throughout the trial and without two Dental Surgeons in the Panel, as provided for by Section 15(2), 3(1) of the Medical and Dental Practitioners Act Cap M8 2004 Laws of Federation of Nigeria and Paragraph 3(1) of the Medical and Dental Practitioners (Disciplinary Tribunal) of the second schedule 19th March 1993? (Distilled from ground 6).
The issue at this juncture is whether the Tribunal as constituted had the vires or jurisdiction or competence to conduct the proceedings leading to the Direction striking out the name of the Appellant off the Register of Medical Practitioners in Nigeria.
As rightly observed by the Appellant’s learned Counsel, Rule 3(1) of the Medical and Dental Practitioners (Disciplinary Tribunal) Rules which prescribed the composition of the Tribunal says that “3. (1) Whenever any case of professional misconduct against a medical practitioner or a dental surgeon is referred to the Tribunal by the Panel such a case shall be heard by the Chairman of the Council and ten other members of the Council appointed by the Council who shall include not less than two persons who are fully registered dental surgeons.” It means in essence that in all, the Tribunal shall be composed of eleven members as highlighted by the Appellant’s Counsel. However, Rule 3(3) provides that five members of the Tribunal, including the Chairman, shall form a quorum.”
By the above provisions, it is distinct that there is a world of difference between the words “composition” and “quorum” respectively. Composition is said to mean the act of putting together or making up by combining parts or ingredients or the parts of which something is composed or made up; constitution, “putting together”, whereas quorum is defined in the Black’s Law Dictionary as “The smallest number of people who must be present at a meeting so that official decisions can be made; the minimum number of members (a majority of all the members, unless otherwise specified in the governing documents) who must be present for a deliberative assembly to legally transact business.”
By the provisions of Rule 3(1) of the Medical and Dental Practitioners (Disciplinary Tribunal) Rules, the Tribunal shall consist of eleven members including the Chairman when hearing a case referred to the Tribunal. This deals with the composition of the Tribunal, that is, the maximum number of members of the Tribunal. But when it has do with actually hearing a case, the quorum means the least number of members needed to be present to have the competence to conduct any proceedings or the constitution of the Tribunal for the purpose of exercising its jurisdiction conferred upon it by the Act. The quorum of the Tribunal is established by Rule 3(3) of the Rules meaning that any sitting of the Tribunal shall consist of not less than five members (including the Chairman). It means therefore, that as long as the sitting was participated by at least five members of the Tribunal including the Chairman, the Tribunal has the jurisdiction to hear any case referred to it. It is imperative to note that Rule 3(3) did not make appearances of the two Dental Surgeons during sittings, mandatory. Rule 3(3) simply required the presence of five members of the Panel including the Chairman. It shows that any sitting of the Medical and Dental Practitioners (Disciplinary Tribunal) presided by the Chairman and four members is valid. The quorum of the Tribunal under the Rule shall be the Chairman and four other members. I am afraid, the argument of learned Counsel for the Appellant in respect of the two issues are not tenable in law and are hereby discarded. See the analysis by the Supreme Court in Saraki vs. FRN(2016) 3 NWLR Part 1500 page 531. Accordingly, issues 1 and 2 are hereby resolved in favour of the Respondent.
Regarding issue 3, which questioned whether the Tribunal breached the Appellant’s right to fair hearing when they refused to allow the nominal Complainant, Uwa Osagle to testify at the instance of the Appellant when the trial was in progress and thereby occasioned a miscarriage of justice, I would firstly advert my mind to the exposition in Amanchukwu vs. Federal Republic of Nigeria (2009) NWLR Part 1144 page 475, per Ogbuagu, JSC., that:
“Fair hearing within the meaning of Section 33(1) of the 1979 Constitution, means a trial conducted according to all legal rule formulated to ensure that justice is done to the parties. It encompasses not only the compliance with the rules of natural justice, but also audi alteram partem. It also entails doings in the course of trials, whether civil or criminal trial, all the things which will make an impartial observer, leave the Court room to believe that the trial has been balanced and fair on both sides to the trial. “It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing.
The true test of a fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case. We feel obliged to agree with this.”
See also the cases of Kim v. The State (1992) 4 NWLR (pt. 233) 17 AT 37; (1992) 4 SCNJ 81; Ntukidem v. Oko (1986) 5 NWLR (pt. 45) 909 and Union Bank of Nigeria Ltd & Anor. v. Nwaokolo (1995) 6 NWLR (pt. 400) 127 at 149,150 – per Onu, JSC, (as he then was; now Rtd.)”
The question is whether on the face of the indisputable record before this Court, Counsel for the Appellant can conscientiously contend that the Appellant’s right to fair hearing was breached by the Tribunal? It is instructive to note based on the record of appeal before this Court that there was never a time it was recorded that the said Uwa Osagie appeared before the Tribunal to testify on behalf of the Appellant and was denied such right by the Tribunal. Hearing before the Tribunal commenced in earnest on the 9th December, 2020 which can beg leaned from page 151 of the record when plea was taken. During the testimony of PW1, Dr. Enejo Abdu, the Head of Department of Professional Discipline, Secretary to the Medical and Dental Practitioners Investigation Panel, he tendered all the documentary exhibits in his custody before the Tribunal. The Appellant presented his defence immediately thereafter. His evidence-in-chief, cross-examination, re-examination and Clarifications by Members of the Tribunal spanned twenty-six pages. Immediately after the Clarifications by Members, there was no indication on the record that an application was made by the Appellant to the Tribunal to grant him permission to call the said Uwa Osagie as a witness and the application was declined. It is also clear in the record of appeal that the said Uwa Osagie did not attend the hearing before the Tribunal and was never procured by the Appellant to testify on his behalf.
What is equally striking is that the alleged affidavit of withdrawal of the Petition said to have been filed by the said Uwa Osagie on 17/2/2020 was not tendered by the Appellant nor did he subpoena anyone to appear to tender the same. The Appellant alsodid not apply for an adjournment to enable him produce Mr. Osagie to tender the same. It was only at the proceeding of the 31st August, 2020 that mention was made about the said affidavit in a letter dated the same date written by the Appellant’s Counsel to the Tribunal. In that letter, the Appellant applied for dismissal of the Petition based on the alleged affidavit of withdrawal of the Petition filed by Uwa Osagie. The Tribunal’s attention was quickly adverted to Rule 4 of the Medical and Dental Disciplinary Tribunal which defined the proper parties in the case, that is to say, the Chairman of the Tribunal, that is, Investigation Panel; and the Medical Practitioner or Dental Surgeon whose conduct is the subject of matter of the proceeding, and, if the Tribunal so directs, the complainant who may be represented by a legal practitioner. In the instant case, there was no Direction by the Tribunal making the complainant a party to the case. It was Counsel for the Appellant that wrote a letter to the Tribunal. There was no letter whatsoever by the said Uwa Osagie to the Tribunal expressing his desire to withdraw the Petition nor did he appear to adopt his alleged deposition on oath. See also pages 142-146. The fact is, the said Osagie did not appear before the Tribunal let alone being refused by the Tribunal to testify at the instance of the Appellant. It would be untenable to allow this unguarded allegation to stand. The issue of denial of fair hearing does not rise at all. The Appellant had the opportunity of calling the said Osagie but he chose to write a letter before the trial and asked for dismissal of the Petition based on the alleged affidavit of the said Uwa Osagie. Uwa Osagie did not attend the Tribunal physically. This is a porous allegation. Accordingly, issue three is resolved in favour of the Respondent.
Regarding issue 4 which challenges the sentence imposed by the Tribunal, it is clear that by Section 16(2) of the Medical and Dental Practitioners Act, the Tribunal has a discretionary power in passing sentences. There was no mandatory sentence imposed by the Act or term or form of punishment prescribed for infamous conduct. Section 16(1) (a) says: “where a registered person is adjudged by the Disciplinary Tribunal to be guilty of infamous conduct in any professional respect, by 16(2) the Disciplinary Tribunal may give a direction under Subsection (1) of this Section: (a) ordering the Registrar to strike out the person’s name off the relevant register or registers; or (b) suspending the person from practice by ordering him not to engage in practice as medical practitioner or dental surgeon, as the case may be, for such period not exceeding six months as may be specified in the direction; or (c) admonishing that person”. The sentence imposed is not a mandatory term prescribed by the law and as such it can be altered by this Court. This Court derived such power under Section 19(3) of the Court of Appeal Act (as amended). It provides that: “On appeal against sentence or, subject to the provisions of this Act, or on appeal against conviction, the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and if not of that opinion shall, in the case of an appeal against sentence, dismiss the appeal”.
I have given anxious consideration to the facts and circumstances of this case particularly the sentence imposed by the Disciplinary Tribunal since no life was lost. I have also taken cognisance of some of the cases determined by the same Tribunal where lives were lost but the Tribunal did not award the penalty of having the names of the registered medical practitioners concerned, struck off the relevant registers but rather suspended them for six months. See the case of Dr. Godit MiIam vs. Medical and Dental Practitioners Investigation Panel & Anor (2018) LPELR-45539 where loss of life was involved, the Appellant was found guilty of professional negligence and he was suspended from medical practice for six months. See also the unreported judgment delivered on 7/4/2021 in the case of MDCN vs. Dr. Adolphus Oriafo referred to by the Appellant’s Counsel. In the light of the aforementioned cases, I am of the firm view that the sentence of striking out the name of the Appellant off the Register of Medical Practitioners in Nigeria handed down by the Tribunal in the instant appeal, is too severe considering the lenient approaches adopted by the Tribunal in circumstances where lives were lost in the past. Consequently, I resolve issue four in favour of the Appellant.
Issue 5 is of no consequence as it relates to the wrong dating of the Direction of the Tribunal. To start with, the record of proceeding conducted on Tuesday, the 6th April, 2021 from pages 187 to 190 of the record shows that the matter was adjourned to Thursday for judgment. Then at page 191 of the record, proceeding was indeed conducted on Thursday, the 8th April, 2021 on which date, the Direction of the Tribunal was delivered. It was stated to have effect on that same date of 8th April, 2021. In APC vs. INEC & Ors (2015) 8 NWLR Part 1462 page 531, the Supreme Court, per Muhammad, JSC., (as he then was) expressed that: “where a document has been signed and, in it, is provided a specific date of commencement or date when effect is to be given or action to be taken, that date must be taken to be the ‘effective’ or commencement date irrespective of the date when the officer signing the document on behalf of the authority appended his signature. That specific date of commencement can be with retrospective effect, it may commence immediately after or on the date of signing or it may even bein the future. In public and civil services and of course, with private corporations, appointments, promotions or demotions may be done with retrospective effect or immediately. If it is retrospective, the officers concerned take arrears of their entitlements attached to that office. On the other hand, if the document is silent on the commencement date, then it will be presumed that effect is to be given to it from the date the officer signed the document.”
This Court in Okon vs. The State (2019) LPELR-47460(CA), per Ogbuinya, JCA., on effect of non-dating/wrong dating of a document, equally referenced the case of APC vs. INEC (supra) and remarked thus:
“To begin with, it is trite that non-dating of a process (especially notice of appeal) taints it with incompetence, see Adamu v. State (2017) 10 NWLR (Pt. 1574) 463. But, wrong dating of a judgment is a curable irregularity, See Japhet v. State (2016) 6 NWLR (Pt. 1509) 602. It is decipherable from the judgment, as dissected above, that the Judge of the lower Court made the alteration on its date of delivery – 22nd September, 2014. In APC v. INEC (2015) 8 NWLR (Pt. 1462) 531 at 567, I. T. Muhammad JSC, speaking for the Supreme Court, incisively and decisively, opined: Thirdly, it stands to reason that where a document has been signed and in it is provided a specific date of commencement or date when effect is to be given to or action to be taken, that date must be taken to be the ‘effective’ or commencement date irrespective of the date when the officer signing the document on behalf of the authority appended his signature. That specific date of commencement can be with retrospective effect, it may commence immediately after or on the date of signing or it may even be in the future.”
His Lordship further said in Asuquo Effiong Etim vs. The State (2019) LPELR-47461(CA) that wrong dating of a judgment is a curable irregularity, see Japheth vs. State (2026) 6 NWLR Part 1509 page 602. It needs be pointed out that the cases relied upon by the Appellant’s Counsel on issue 5 were all decided before the Supreme Court case and those of this Court, per Ogbuinya, JCA. I therefore resolve this issue in favour of the Respondent.
In the end and for all the reasons I have given above, this appeal is allowed in terms of only issue four. In consequence thereof and pursuant to the powers conferred upon this Court by Section 19(3) of the Court of Appeal Act (as amended), this Court sets aside the sentence imposed on the Appellant by the Medical and Dental Disciplinary Tribunal in its Direction delivered on the 8th April, 2021 in Charge No. MDPDT/67/2020 and, in its place, orders that the Appellant be suspended from practice as a medical practitioner for a period of six months with effect from the date he was found guilty of infamous conduct, that is to say, the 8th April, 2021.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in advance, the draft of the lead judgment in the instant appeal in which the appeal was partly allowed on issue 4 which borders on the “sentence” by way of “direction” imposed on the Appellant in consequence of his being adjudged guilty of professional misconduct by the Medical and Dental Practitioners Disciplinary Tribunal on 8/04/2021
My Lord had in the said judgment dealt extensively and comprehensively with the five (5) issues distilled by the Appellant’s Counsel from the ten (10) grounds of appeal filed in this Court and I wholeheartedly align myself with the judicious consideration and analysis of the said issues and adopt the decision reached as mine, to the effect that it will serve the interest of justice that the rather harsh “sentence” imposed by the Tribunal be ameliorated in order to be consistent with a few of the previous similar cases the Tribunal had decided prior to the complaints against the Appellant in the conduct of his professional duty
I really do not have any useful additions to make to the well considered decision reached by my learned brother, the Hon. Justice Theresa Ngolika Orji-Abadua, JCA that the appeal be allowed in part only with respect to issue 4 on the “sentence” passed by the Tribunal against the Appellant, and In its place, to order the suspension of the Appellant from medical practice for a period of six (6) months with effect from April, 2021 when the Tribunal pronounced on the direction by which the Appellant’s name was ordered to be struck off the Register of Medical Practitioners in Nigeria.
Appeal is allowed in part.
BATURE ISAH GAFAI, J.C.A.: I was privy to the reasonings and conclusion articulated in the judgment just delivered by my learned brother Theresa Ngolika Orji-Abadua, PJCA. I adopt those reasonings as mine; by which I too resolve Issue 4 only in the Appellant’s favour. In consequence, I too set aside the sentence passed by the lower Tribunal on the Appellant and instead order that he be suspended in the terms ordered in the lead judgment.
Appearances:
A.O. Edeki, Esq. For Appellant(s)
Nil For Respondent(s)
