John Oni Akerele V. The King (1942)

LawGlobal Hub Judgment Report – West African Court of Appeal

The appellant in this case is a duly qualified medical practitioner who carried on practice in Nigeria.

On the 7th March; 1941, he was charged before the Assistant Judge at Umuahia Sessions of the High Court of the EnuguOnitsha Division in the Protectorate of Nigeria on three charges.

(i) Manslaughter contrary to section 325 of the Criminal Code in killing one Kalu The in May, 1940.

(ii) Reckless and negligent acts contrary to section 343 (1)

(e) of the said Code in giving medical treatment to the said Kalu in a manner so rash or negligent as to endanger human life or to be likely to cause harm.

(iii) Reckless and negligent acts contrary to section 343 (1)

(f) of the said Code in dispensing or administering mediCine or poisonous or dangerous matter to the said Kalu.

The learned Assistant Judge who tried the case without a jury found the appellant not guilty on the second count but guilty on the first and third counts, sentenced him on the first charge to three years’ imprisonment with hard labour and on the third to a fine of £1.00 or twelve months’ imprisonment with hard labour to run concurrently with the punishment awarded on the other charge, and refused bail pending an appeal.

On appeal the West African Court of Appeal quashed the sentence on the third charge, affirmed the conviction on the first charge, but varied the sentence to a fine of £500 and in default of payment to imprisonment with hard labour for twelve months.

The appellant’s case states that as a result of this conviction his

Council,name was struck of the local medical register by the Board of

7th Dec.,

1942.Examiners for Nigeria.

The fine was paid but the appellant petitioned His Majesty

johnOni

Akerin Council for special leave to appeal from the conviction and

vsentence of the Court of Appeal and on the 27th November, 1941,

The King- his petition was granted by His Majesty in Council. Pursuant Lord Porter. to this leave their Lordships heard the appeal on the 213th and 29th of October last.

At that hearing the Attorney-General on behalf of the Crown, whilst maintaining that it was open to him to support the conviction on the third charge on the ground that the sentence alone had been quashed, admitted that if the conviction for manslaughter should not be upheld, the conviction for negligent dispensing or administering medicine could not be supported. It accordingly becomes unnecessary for their Lordships to consider either the propriety of recording a conviction on the two counts or whether the evidence would support a conviction on the third count.

The sole question is whether sufficient grounds were shown to persuade their Lordships that the case was one in which it would be proper for the Board in accordance with the principles upon which it acts, to advise His Majesty to grant the petition of appeal against the decision of the West African Court of Appeal upholding the conviction for manslaughter recorded by the learned Assistant Judge.

The facts giving rise to the charge may be briefly stated. The appellant in the course of his medical practice was touring the Owerri Province in May, 1940, and the inhabitants of the districts of Asaga and Akanu were notified that they could be treated by him on the fith and 7th of that month.

According to a list kept by the appellant seventy-eight persons were treated at Asaga of whom fifty-seven were children : forty-four of these of whom thirty-six were children were dealt with on the 6th May and thirty-four of whom twenty-one were children on the 7th. On this latter day the appellant proceeded to Akanu where sixty-one persons were treated of whom thirty-three were children and the remainder adults.

With a few exceptions the patients appear to have been suffering from an endemic disease known as yaws which attacks both adults and children causing lesions and ulcerations on all parts of the body and in particular on the lower limbs and feet.

Two methods of inoculative treatment for this disease are now well recognised, the injection (1) of N.A.B. an arsenical preparation and (ii) of Sobita, which consists of sodium bismuth tartrate as given in the British Pharmacoposa, and is^. a trade preparation supplied to the doctor by a drilg company in the form of a powder. It is now common ground that the proper dose for an adult is three grains and for a child one.