CASE TITLE: RALU V. MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL LPELR-81420(CA
JUDGMENT DATE: 9TH MAY, 2025
JUSTICES: HAMMA AKAWU BARKA, J.C.A
ABBA BELLO MOHAMMED, J.C.A.
EBERECHI SUZZETTE NYESOM-WIKE, J.C.A.
DIVISION: ABUJA
PRACTICE AREA: MEDICAL LAW
FACTS:
This appeal borders on Medical Law.
This appeal is against the unanimous direction/judgment of the Medical and Dental Practitioners Tribunal, holden at Abuja (the Tribunal), in Charge No: MDPDT/9/2018, delivered on the 26th day of September, 2019. Before the Tribunal, the Appellant faced a two-count charge. The appellant had been accused of being grossly negligent in the management of the deceased, late Mrs. Rita Uchubuego and that it was the Appellant’s negligence that led to the death of the deceased.
By the Rules of the Tribunal, trials are conducted by way of affidavit evidence where complaints are initiated by way of affidavit and the Respondent Doctors also respond by way of their own affidavits. To prove its case, the prosecution called two witnesses: Dr. E. Abdu Danjuma; Secretary to the Medical and Dental Investigating Panel and Ngozi Uchebuego respectively.
On the part of the Appellant, he testified as a lone witness and tendered documents which were admitted and marked as Exhibits.
The Appellant pleaded not guilty and after a trial, the Tribunal found the Appellant guilty of the two-count charge and sentenced the Appellant to six months suspension from medical practice with effect from the date of the judgment.
Dissatisfied with the said direction/judgment of the Tribunal finding him guilty of infamous conduct and sentencing him to six-month suspension from medical practice the Appellant brought this appeal vide Notice of Appeal filed on 11th October, 2019 containing six (6) grounds of appeal.
ISSUE(S) FOR DETERMINATION:
The Court determined thus appeal on a sole issue which reads thus:
Whether considering the evidence adduced, the Tribunal was right when it convicted and sentenced the Appellant.
COUNSEL SUBMISSIONS:
The Appellant’s learned Counsel submitted that the Prosecution has the onus of proving the elements and or ingredients of the particular misconduct alleged against the Appellant in order to ground a conviction. He pointed out that Rule 29 of the Code of Medical Ethics in Nigeria provides what constitutes professional negligence as: “Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient.” He also referred to Rule 31 of the Code of Medical Ethics in Nigeria 2008 Edition which provides that: “Where the extent of the negligence had been such that it resulted in permanent disability or death of the patient, then the practitioner will be guilty of gross negligence and is liable to: (a) suspension for a period of six months; or (b) having his name struck off the medical or dental register, as the case may be.” He argued that from those provisions of the Code under which count 1 of the charge is anchored, the Prosecution had the duty to prove through its witnesses that the Appellant was negligent in the management of the deceased, late Mrs. Rita Uchebuego and that it was the Appellant’s negligence that resulted in the death of the deceased. He cited MAIHAJA v GAIDAM & 2 ORS (supra) at 47 at 93. He added that by the wordings of Rules 29.4h and 31 of the Code of Medical Ethics, expert witness is required to establish what the Appellant failed to do in the management of Rita Uchebuego (deceased) on 6th March, 2018 and that the same caused her death. He cited BAREWA PHARM. LTD v FRN (2019) 9 NWLR (Pt. 1677) 331 at 336 – 337, ratios 4 and 5. He added that the Respondent failed to call any expert witness. He added that it is surprising that having regard to the status of the PW1 as sated in his testimony in relation to count 1 of the charge, the Tribunal failed to make a decisive finding of fact and pronounce on it, but quickly concluded that the prosecution has proved its case in respect of the two counts against the appellant by simply tendering documents received as Secretary to the Investigating Panel. He referred to pages 545 – 546 of the Record of Appeal.
Counsel cited OTTI v EXCEL – C MEDICAL CENTRE LTD (2019) 16 NWLR (Pt. 1698) 274 at 280 – 281, and wondered which evidence of the prosecution’s witnesses the Tribunal relied upon in holding that the prosecution has proved his case in respect of Count 1 of the charge and found the Appellant guilty of the charge when none of the prosecution’s witnesses gave evidence as the Appellant’s professional colleague. Counsel insisted that the Tribunal descended into the arena of conflict when it connected the Appellant to the two counts charge without first finding and holding that the prosecution has proved his case beyond reasonable doubt as required by law. He added that the Tribunal, against the requirement of law, equity and fairness, choose to ascribe to PW1 what he is not and even went as far as relying on the exhibits tendered by him which were never linked to the prosecution’s case against the Appellant. He argued that the Prosecution, through the PW1, merely dumped the documents on the Tribunal without any attempt to linking them to his case. He added that even Exhibits 3 and 4 were affidavit made by one Dr. Ojenuwah who was never called as a witness by the prosecution and was not subjected to the heat of cross-examination as to the contents of the said affidavits. He cited BABABE v FRN (2019) 1 NWLR (Pt. 1652) 100 at 110 ratio 18; LADOJA v AJIMOBI & ORS. (2016) LPELR 40658 (SC) at 48 – 50, paras. E – B.
On the second element and/or requirements in Rule 31 of the Code, i.e. whether the failure by the Appellant in managing the deceased led to her death, Counsel submitted that the Prosecution failed woefully to establish this fact. He pointed out that the deceased died in the early hours of 9th April, 2017, while the Appellant attended to her on the 6th of April, 2017 and the Appellant was not on call on 7th and 8th of April, 2017, but was to resume call by 8.00am on the 9th of April, 2017. Counsel submitted that the Case Note of the deceased, Exhibit 25, tendered by the Prosecution is against the prosecution because it shows that the deceased was attended to on 7th April, 2017 and 8th April, 2017 by other doctors, showing that the alleged mismanagement of the deceased by the Appellant was not the cause of her death in the early hours of 9th April, 2017.
On the second count of the charge, Counsel submitted that the Tribunal failed to evaluate the evidence before it in relation to count 2 of the charge, rather it rushed to the conclusion that the Appellant is guilty of the count as charged. Counsel submitted that the Prosecution did not place any evidence before the tribunal except the oral evidence of PW2 who could not establish his assertion. He posited that the Appellant is presumed innocent until the contrary has been proved. He cited the provisions of Rule 49 of the Code of Medical Ethics in Nigeria, 2008 Edition, which is that: “It is unethical for a registered Practitioner engaged in a public health institution to demand and/or receive money from hospital patients under any guise whatsoever, before or in the course of attending to such patients.” He submitted that the Prosecution had the primary duty of proving the following elements: (a) that there was demand and or receipt of money from hospital patient by the Appellant; and (b) that the money was demanded and/or received before or in the course of attending to the patient. He pointed out that PW2 who was the complainant in his first Affidavit of 9th June, 2017 did not mention the name of the Appellant in any paragraph thereof. He referred this Court to the said affidavit of the PW2 at pages 3 – 11 of the Record of Appeal. He pointed out that it was in the further affidavit of the PW2 upon the service of the Appellant’s Affidavit on him by PW1 that PW2 raised the issue of having paid money to the Appellant. He argued that the said Further Affidavit of PW2 was not served on the Appellant by the Secretary to the Medical Panel for his reaction (if any) and the same was admitted by the Secretary PW1 under cross examination. He referred to pages 455 & 456 of the Record of Appeal.
Counsel submitted that PW2 had admitted under cross-examination that the Appellant did not at any time discuss any fee with him for any service(s) rendered to his deceased wife, late Mrs. Rita Uchebuego. Counsel contended that it is trite law that fact admitted needs no further proof. He cited NNPC v KLIFCO (NIG) LTD (2011) 10 NWLR (Pt. 1255) 209. He submitted that PW2 only testified that he gave N7,000.00 to the Appellant upon people’s advice, according to him after the hospital had long discharged his deceased wife, but he did not provide any evidence of giving such money to the Appellant neither did he state the exact date of such payment.
Counsel argued that while this might be an attempt by the prosecution to prove first element, the prosecution also failed to prove the second element, which the Tribunal failed in its duty of finding that the Prosecution failed to prove and or establish beyond reasonable doubt the requirement of Rule 49 of the Code of Medical Ethics in Nigeria 2008 Edition. He cited the case of ABIDOYE v FRN (2014) 5 NWLR (Pt. 1399) 30 at 39, ratio 6. He added that the testimony of PW1 is an admission against interest because PW1 stated categorically that he made the purported payment into the bank account of the Appellant many days after his deceased wife had been discharged on the advice of people. Counsel submitted that this piece of evidence is at variance with the wordings of Rule 49.1e of the Code and the Tribunal failed to pronounce on same. He cited OKE v MIMIKO (No. 2) (2014) 1 NWLR (Pt. 1388) 332 at 347, ratio 16; and ABIDOYE v FRN (2014) 5 NWLR (Pt. 1399) 30 at 41. He submitted that the Tribunal descended into the area of conflict when it held that the Prosecution has proved the two counts without first evaluating the evidence before it and without first ascribing value to it and this occasioned miscarriage of justice against the Appellant. He referred to page 548 of the Record of Appeal and argued that the Tribunal for reasons best known to it, failed to make mention of Exhibits 36 and 37 tendered in respect of count 2 by the Appellant and mentioned by the Appellant’s Counsel in his Final Address of 23rd September, 2019 at pages 499 – 500 and 533 of the Record of Appeal.
Countering the submissions of the Appellant, learned Counsel for the Respondent contended that on the argument of the Appellant that Exhibit 1 did not mention the Appellant’s name, Counsel submitted that this issue has been put to rest by the evidence of PW1 during cross examination by the Appellant’s counsel at pages 457 – 458 of the Record of Appeal. As for the argument that the evidence of the Prosecution did not link the Appellant to the charge and the allegation of non-service of the further and better affidavit of the complainant on the Appellant, learned Counsel for the Respondent submitted that it was in evidence at pages 461-462 of the Record that as at the time the complainant deposed to the further and better affidavit on 14th August 2017 in response to one of the Respondents’ counter affidavit, the Appellant had not been made a party. Thus, the issue of non-service of the said further and better affidavit was not in issue. Counsel urged the Court to discountenance the argument of the Appellant’s counsel, especially when the said further and better affidavit was withdrawn by the Prosecution at the Tribunal, following the objection by the Appellant’s Counsel. He referred to pages 476 and 479 of the Record.
Learned Counsel further submitted that PW1 had in his evidence during cross examination stated that the Appellant had already been written forwarding the affidavit of Dr. Ojenuwah, who was the first person that mentioned him as participating in the management of the patient.
Learned Counsel also submitted that it was also in evidence that the Appellant received payment from the complainant, Mr. Ngozi Uchebuego for the care of the deceased, late Rita Uchebuego. He added that this evidence was further corroborated by Exhibit 36 tendered by the Appellant. He posited that the evidence adduced by the Respondent not only linked the Appellant to the charge, but proved same against him beyond reasonable doubt and there was no evidence in rebuttal. He referred to BAKER v STATE (1989) 1 NWLR (Pt. 52) 579, and urged this Court to discountenance the submissions made on behalf of the Appellant. He submitted that the reasoning of the Tribunal cannot be faulted on this ground.
DECISION/HELD:
The Court held that the appeal was devoid of merit and it was thus dismissed. The decision of the Medical and Dental Practitioners Disciplinary Tribunal convicting the Appellant and sentencing him to six months suspension from medical practice was thereby affirmed.
RATIO:
MEDICAL LAW – MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL: Powers of the Medical and Dental Practitioners Investigating Panel to investigate cases of professional misconduct
“…this Court, per Abubakar, JCA (as he then was), held in MILAM v MEDICAL & DENTAL INVESTIGATION PANEL& ANOR (supra) at 43 – 44, paras. C – A, thus:
“Before concluding this judgment, I find it expedient to consider the Appellant’s argument that since the complainant did not have any complain against the appellant, therefore there was no reason for the Appellant to be charged before the Tribunal, I must say that this argument is misconceived, having regard to the relevant provisions of Section 15(3) of Medical and Dental Practitioners Act, establishing the Medical and Dental Practitioners Investigating Panel, headed by the 1st Respondent, and empowering it to conduct 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 subject of proceedings before the Disciplinary Tribunal. I am unable to accept the Appellant’s submission that the 1st Respondent is limited only to file charges against persons against whom the complainant has levelled allegations of professional misconduct. This view cannot hold especially considering the instant situation where, though a complaint is made out against one person, it is nonetheless found that another person should also be a subject of the complaint. On the whole therefore, it is my view, that the 1st Respondent is empowered to conduct investigation and bring before the tribunal any medical practitioner or dental surgeon who is alleged to have committed professional misconduct in his professional capacity.”
It is instructive that the above pronouncement by this Court concerns the powers of the same Medical and Dental Practitioners Investigation Panel under Section 15(3) of the Medical and Dental Practitioner’s Act, the same body that investigated the Appellant herein.” Per MOHAMMED, J.C.A.
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