Dr. Jeremiah Abalaka V. Minister of Health & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
ODILI, J.C.A.
In a motion on notice dated 23rd June 2005 and filed on the same date, the applicant prayed for the following reliefs:-
1. An order of interlocutory injunction restraining the respondents either by themselves, their agents, servants or privies from investigating, trying or in anyway subjecting him to any judicial or quasi-judicial proceeding pending the determination of his appeal pending before the Supreme Court.
2. Further or other orders as this honourable court may deem fit to make in the circumstances.
In moving the motion learned counsel for the appellant/applicant Mr. Ben Omale stated that the application was brought pursuant to order 8 rule 12(3) of the Supreme Court Rules 1985, order 3 rule 3 of the Court of Appeal Rules and S.16 of the Court of Appeal Act.
Learned counsel referred to the 4 paragraph supporting affidavit deposed to by one John Usman, litigation secretary of Isaac Okpanachi & Company counsel to the appellant/applicant. He also referred to exhibit A which is the notice and grounds of appeal. Mr. Omale submitted that in determining a motion for interlocutory injunction there are certain guiding principles which are:
1. That there is a serious issue to be tried;
2. That the balance of convenience is on the side of the applicant.
That damages will not be adequate compensation. He cited the cases of Kotoye v. CBN & 7 Ors (1989) All NLR 76 at 87; (1989) 1NWLR (Pt.98) 419; Obeya Memorial Specialist Hospital v. Attorney General Federation (1987) part 2 volume 18 NSCC 961 at 968 – 969.
Learned counsel went on to state that on triable issue the Notice of Appeal exhibit A has raised recondite issues of law for consideration. He referred to S.46(1) of the 1999 Constitution as interpretation of that constitution is in issue and it is a serious issue and it is triable. He referred to the grounds of appeal.
Learned counsel said the balance of convenience is in favour of the applicant. That respondents would lose nothing if the application is granted while applicant would lose everything if the application is not granted.
Mr. Omale said damages cannot adequately compensate the applicant in the event he succeeds on appeal. That by paragraph 3(h) of the supporting affidavit, the applicant has shown that as a medical doctor he stands the risk of having his name removed from the register and such a damage can never be adequately compensated in damages.
In respect of the conduct of the parties learned counsel for the applicant said the applicant has conducted himself in a manner that will warrant a grant of this application while the respondents have shown that they are in a hurry to try and convict the applicant.
Learned counsel stated further that there is no counter affidavit and it is trite law that uncontroverted deposition in an affidavit are to be deemed correct and accepted by court as the true position and so the depositions are to be deemed correct. That the court should grant the applicant the order sought so as not to render nugatory the appeal before the Supreme Court.
In reply learned counsel for the respondent, Chief Adetola Kassem (SAN) referred to the case of Akeem v. University of Ibadan (2001) 15 NWLR (Pt.736) 352 at 372 para A.
He said in this type of case the most important principle is whether applicant has shown any special or exceptional circumstances that would warrant the grant of the application. He said the court should look at the supporting affidavit to see if it disclosed any special circumstances. He cited the case of Okin Biscuits v. Oshe (2001) 6 NWLR (Pt.709) 369 at 380.
The learned SAN said the supporting affidavit lacked substance because paragraphs 3(c), (e), (t), (g) (i), (k) are either legal arguments or conclusions and offend S.87 of the Evidence Act and should either be struck out or discountenanced. He cited the case of Josien Holdings Ltd v. Lornamead Ltd. (1995) 1 NWLR (Pt.371) 254 at 265 f – g.
He said sub-paragraph 3(h) is at best speculative and which cannot take the place of evidence. That paragraph 3(c) is at best the opinion of the deponent which is of no value to this court.
Learned counsel said going by the affidavit the application should fail as lacking in the necessary material with which to act.
Learned counsel for the respondent further contended that the applicant in an application of this nature should show the existence of a right which he needed to protect. He referred to the case of Ike v. Ugboaja (1989) 2 NWLR (Pt.103) 332 at 336 A.
Chief Adetola – kassem said that the substance of this application is that applicant is seeking to protect that 3rd respondent should be restrained from investigating an allegation of professional misconduct against the applicant pending the appeal to the Supreme Court. That the applicant does not possess a right not to be investigated by the appropriate authorities where there is an allegation of misconduct against him. That in this kind of situation the appropriate authority to conduct such a preliminary investigation into such an allegation is the 3rd respondent. He cited the Medical and Dental Practitioners Act, Cap 221 LFN 1990, M 8 LFN 2004, S. 15(3).
Learned counsel said the court should not restrain the 3rd respondent from carrying out a statutory duty of conducting a preliminary investigation of an allegation of infamous conduct against the applicant. He cited Fawehinmi v. IGP (2002) 7 NWLR (Pt.767) 606 at 674, 697 E.
The learned SAN asked the court to take notice that there is a distinction between investigation and trial. That the Medical and Dental Practitioners Act has two organs but the Disciplinary Committee is not a party to this application. He urged the court to dismiss the application.
In reply on points of law Mr. Omale of the applicant urged the court to discountenance all submissions by respondents counsel relating to facts. That whether investigation amounts to trial goes to the root of the appeal and the court should not go into that. That the affidavit in support contains only facts and nothing more and is in consonance with the law.
The affidavit in support was deposed to by one John Usman, litigation Secretary of Isaac Okpanachi & Company, counsel to the appellant/applicant in this case and I would refer to paragraph 3 and the sub-paragraphs therein:
3 That Mr. Isaac Okpanachi of counsel informed me on the 22nd June, 2005 in our Chambers at B35 Abuja Shopping Mall, Wuse Zone 3, Abuja at about 12 pm of the following facts which I verify believe to be true to wit:
(a) That the Court of Appeal Abuja Division delivered its judgment in this appeal on Monday the 13th day of June 2005.
(b) That the appellant being dissatisfied with that judgment filed his notice of appeal against that judgment on the 22nd of June, 2005. A copy of the same is attached as exhibit ‘A’.
(c) That the grounds of appeal in the notice raise many substantial and triable issues which are recondite and one novel issue.
(d) That the nature of the appeal is one of the enforcement of fundamental human rights pursuant to Chapter 4 of the 1999 Constitution of Nigeria.
(e) That the grounds of appeal raise issues closely linked to the controversies surrounding the discovery of vaccines against the pandemic HIV scourge in Nigeria and professional ethics of Medical practitioners.
(f) That a specific issue that may be novel in this appeal is whether one person practicing two different professions can be caught by the ethical considerations of one profession while carrying out the duties of his other profession.
(g) That it is right and equitable to maintain the status quo and thereby preserve the res so that the appeal be not rendered nugatory.
(h) That if the 2nd and 3rd respondent are not restrained they will try and remove the applicant’s name from the register of Medical Practitioners while this appeal pends.
(i) That such an occurrence will foist upon the Supreme Court a situation of complete helplessness.
(j) That, that would render nugatory any order or orders of the Supreme Court.
(k) That would also make it impossible to return to the status quo even if the appellant succeeds.
(l) That after the appellant’s application was filed and leave was granted the trial court on the 7th of July, 2000 and the 2nd and 3rd respondents were served the same day, they went ahead on the 14th July 2000 to summon the appellant again to appear before the 3rd respondent knowing the matter was subjudice. The appellant has reason to believe they will do the same again if they are not restrained.
In summary, the appellant/applicant’s position is that if the application is not granted irreparable damage would be occasioned of such a kind that damages would not be able to compensate the appellant. Also that the appeal contained such substantial triable issues of law and therefore the need to maintain the status quo pending the appeal.
On the other hand the counsel for the 2nd and 3rd respondents contend that the special or exceptional circumstances which should persuade the court to grant the application is not existing. Further that the main body of the supporting affidavit precisely paragraph 3(c), (e), (f), (g), (i), (j), (k) offend S.87 of the Evidence Act and if struck out or discountenanced as this court should do there would be no material to sustain this application which would then fail.
I have perused the contents of those sub paragraphs and cannot see why I should ignore them or strike them out. They may not have been couched in the most elegant of language but they have brought out what is at stake in this application and that is what is necessary since the court is more interested in substance rather than form. Also learned counsel for the 2nd and 3rd respondent had sought to impress on the court that there was no reason for the apprehension as is being displayed by the applicant which necessitated this application since according to the learned counsel the panel had no powers except an investigative one which would not be prejudicial to the applicant.
The Panel in this instance being the 3rd respondent.
This position of the learned SAN for the respondent’s makes it imperative to state the relevant sections of the Medical and Dental practitioners Act Cap 221 Laws of the Federation 1990.
Section 3, Medical and Dental Practitioners Act Cap 221 Laws of the Federation 1990:
In any case where in pursuance of Section 15(3) of the Act the panel is of the opinion that a prime facie case is shown against a practitioner the panel shall prepare a report of the case and formulate any appropriate charge or charges and forward them to the secretary together with all the documents considered by the panel.
See Section 3 of the Medical and Dental Practitioners (Disciplinary Tribunal and Assessors) Rules.
Section 15(1), (3) of the Medical and Dental Practitioners Act.
(1) There shall be established a tribunal to be known as the Medical and Dental Practitioners Disciplinary Tribunal (hereinafter in this Act referred to as “the disciplinary tribunal), which 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 cognisance under the following provisions of this Act.
(3) There shall be established a body to be known as the Medical and Dental practitioners Investigating 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 proceedings before the disciplinary tribunal;
(b) compelling any person by subpoena to give evidence before it;
(c) deciding, if satisfied that to do so is necessary for the protection of members of the public, to make an order for interim suspension from the medical or dental profession in respect of the person whose case they have decided to refer for inquiry; and for the case to be given accelerated hearing by the disciplinary tribunal within three months; or
(d) deciding, if satisfied that to do so is necessary for the protection of members of the public or is in his interest, to make all order for interim conditional registration in respect of that person, that is to say, an order that his registration shall be conditional on his compliance, during such period not exceeding two months as is specified, as the panel may think fit to impose for the protection of members of the public or in his interest.
It is clear from sub sections (c) and (d) of S. 15 of the Act that the Panel has some vital powers which have the capacity to de-register the applicant even if in the interim and that is certainly so serious that it is difficult to either gloss over that or to give it scant attention. Therefore the case of Fawehinmi v. IGP (2002) 7 NWLR (Pt.767) 606 at 697 cited by learned counsel for the respondent cannot apply as that case was cited out of context. In that case it was held:
“Investigation into a criminal complaint is not tantamount to instituting or bringing criminal proceedings. Criminal proceedings cannot be said to be instituted or brought until a formal charge is openly made against the accused in court in other words criminal proceedings commence when the accused is arraigned before the court on a formal charge and his plea taken; See Asakitikpi v. The State (1993) NWLR (Pt.296) 641.
In the present instance the Panel has more powers that when applied cannot be equated with that of the investigating role of the police which may not be as prejudicial as the one at hand has the capacity for.
An application of this nature is normally considered on the usual principles for interlocutory injunction in a pending substantive suit.
The applicant must show an existence of a right deserving of protection in the interim. It is only when that has been shown that other relevant issues bordering on the adequacy of compensation in damages in lieu of granting or refusing the injunction and the ability of either party to pay will arise for consideration. When it becomes necessary, the issue of balance of convenience will ultimately be the deciding factor. See Obeya Memorial Hospital v. Attorney – General of the Federation & Anor (1987) 3 NWLR (Pt.60) 325 in which the case of American Cyanamid Company v. Ethicon Ltd. (1975) 1 All ER 504 where the above principles were stated, was cited by the Supreme Court with approval.
It should also be stated that in the consideration of this type of application, all that is the underlying aim is to preserve the res pending the appeal. It does not make any difference whether the application is for stay of execution or for an order of injunction pending appeal. See Ike v. Ugboaja (1989) 2 NWLR (Pt.l03) 332 at 336.
It is however noteworthy that the list of special or exceptional circumstances as enunciated in decided cases is wide and extensive.
They may increase with combination of facts and circumstances of each case. The onus is however on the applicant to prove the existence of those special circumstances. The proof shall be contained in the face of his affidavit or any other evidence which may be placed before the court. See Akeem v. University of Ibadan (2001) 15 NWLR (Pt.736) 352 at 372 para A per Adekeye JCA; Kigo (Nig.) Ltd. v. Holman Bros (Nig.) Ltd. (1980) 5 -7 SC 60; Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129; El-Khalil v. Oredein (1985) 3 NWLR (Pt.12) 371, Okin Biscuits v. Oshe (2001) 6 NWLR (Pt.709) 369 at 380 para H.
An affidavit is a statement of facts which the maker or deponent swears to be true to the best of his knowledge, information or belief.
It must contain only those facts of which the maker or deponent has personal knowledge or which are based on information which he believes to be true. See Sections 86, 88 of the Evidence Act. Therefore no legal arguments, conclusions or other extraneous matters must be included. See Section 87 of the Evidence Act. That in effect means that any paragraph of an affidavit which offends against any of these provisions in the Act may be struck out by the court and if it is not struck out then the court should not attach any weight to it. See Josien Holdings Limited v. Lornamead Limited (1995) 1 NWLR (Pt.371) 254 at 265 F – G; Banque De L’Afrique Occidentale v. Alhaji Baba Sharfad & Ors. (1963) NNLR 21; Horn v. Rickard (1963) 2 All NLR 40, (1963) NNLR 67.
As I earlier said the affidavit did not contain in substance legal arguments, conclusions or any extraneous facts for which any part of the affidavit should be expunged or struck out or discountenanced.
That there are exceptional or special circumstances existing for which this application was brought and which are persuasive, I would answer affirmatively. The applicant has made out a case for the granting of this application and I so hold.
Therefore I order an interlocutory injunction restraining the respondents either by themselves, their agents, servants or privies from investigating, trying or in any way subjecting the applicant to any judicial or quasi-judicial proceeding pending the determination of his appeal pending before the Supreme Court.
I order costs of N5,000.00 to the appellant/applicant to be paid by the 2nd and 3rd respondents.
Other Citations: (2006)LCN/1868(CA)
