Pharmacists Board Of Nigeria V. Franklin Adegbesote (1986)
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BELGORE, J.S.C.
This Court on the 29th of September, 1986, dismissed this appeal and reserved its reasons for doing so. I now give my reasons.
The respondent, Franklin Adegbesote is a pharmacist registered under Poisons and Pharmacy Act Cap 152 Laws of the Federation of Nigeria 1958 as amended by section 17 of the Pharmacists Act (No. 26 of 1964). He was brought before the Pharmacists Disciplinary Committee (hereinafter called the Committee) accused of professional wrongdoing of infamous conduct.
Earlier on there was a report to this Committee by the body known as Pharo macists Investigating Panel which conducted the preliminary investigation into the grounds of the alleged infamous conduct which revealed the display of the respondent’s annual licence at a shop named Figa Pharmaceutical Chemists at 49 Akeju/Dabiri Street. Shomolu, Lagos State. Originally the respondent was charged with the display of photocopies of the same licence in many other places but was proceeded against only in respect of the aforementioned address.
After the trial before the Disciplinary Committee he was found guilty of infamous conduct and a direction reprimanding him was handed down and was asked to pay a cost of N1,000.00 as the cost of the proceedings of the Committee. He appealed against this direction to the Court of Appeal where, by a majority judgment (Ademola, J.C.A., Nnaemeka-Agu, J.CA. with Kutigi, J .CA. dissenting) the direction was set aside and order made for the refund of N1,000.00 and the Committee was ordered to pay a cost assessed at N350.00.
The defence of the Respondent was that he never displayed the photocopy of his licence as alleged. When he was querried by the Pharmacists Board i.e. in Exhibit B, about the display of the licence at 49 Akeju/Dabiri Street, Shomolu, an unregistered pharmaceutical premises. he wrote a reply (Exhibit C) emphatically denying the accusation and contended that he once negotiated to acquire the shop and that it was then that he inadvertently left a photocopy of his licence. This defence is maintained throughout the trial before the Disciplinary Committee. The Investigating Panel alleged that a shop assistant was found in the premises who alleged that the shop belonged to the respondent. This shop assistant was never called as a witness.
The Poisons and Pharmacy Act (Cap 152) demands in section 22(1) as follows:
“Every selling dispenser or chemist and druggist shall cause all the sets of premises where his business is being carried on to be registered under this section.”
In this case the fact that the premises was not registered is not in dispute. It must be that the register kept by the Pharmaceutical Registry, though not tendered, does not contain the premises in question, and the respondent does not contest this. What in essence he contended is whether he in fact displayed or authorised the display of his licence in the premises. This case is beyond the mere question of negative averment whereby a person accused of not having a licence exonerates himself by presenting one.
The accusation centres on the respondent allegedly running a pharmaceutical shop when that shop was not registered as demanded by section 22(1) of the Poisons and Pharmacy Act (Cap 152). The accusation if proved could damage the respondent’s profession, especially when the allegations were being made that shops were being indiscriminately opened to sell pharmaceutical drugs without a pharmacist in control. The mere reprimand is enough to cause damage to his reputation in his profession. This is a quasi-criminal matter because it takes all the trappings of a criminal trial but for the Disciplinary Committee claiming to be lenient his name could have been struck off the register of pharmacists. In matters like this, which is not essentially civil, the proof required is a very strong one indeed.
It must be beyond reasonable doubt. It is not in dispute that the shop in question is not registered but could it be said with certainty that the respondent was the one running the shop for the sale of pharmaceutical drugs and poisons It is impossible from the evidence before the Committee to answer positively, as the only link of the respondent with that shop is the photocopy of his licence, and of course the alleged statement of the shop assistant who was not called to give evidence. The respondent denied displaying the photocopy of his licence and claimed to have left it with the owner of the building when he was negotiating the acquisition of the shop and that this one was aborted. In essence he was claiming the photocopy of his licence was inadvertently left behind after the futile negotiation to acquire the shop.
It is the duty of he who asserts to prove and in a case like this, to prove beyond reasonable doubt, especially when the commission of a crime is an issue for the purpose of sections 23 and 24 of the Poisons and Pharmacy Act which specifically creates certain offences about the registration of premises and punishable under section 68. The proof that is required therefore is of the standard in criminal cases. Chief Ifeanyichukwu Nwobodo v. Chief Christian Chukwumah Onoh (1984) 1 S.C. page 205.
The evidence of the shop assistant is very material and her not being called as a witness is fatal to this case. Could it be possible that this evidence which was available but not brought before the Committee would if brought be unfavourable to the prosecution of this case and lead to the presumption as envisaged in section 148(d) of the Evidence Act As I said earlier, this is not a case of negative averment whereby production or non-production of the licence to run the premises for the sale of poisons and drugs sufficed.
There is no proof conclusively before the Committee that the shop belonged to the respondent, that the respondent left the photocopy of his licence in the shop to facilitate wrongful sale of drugs or that he was in any way connected with the shop apart from his claim that at one time he attempted to acquire the shop but changed his mind and backed out of the transaction. The letter written by the respondent before (Exhibit C), certainly is not an admission that he was running the shop. In fact at that time he was working in another company.
It may be true that the Pharmacists Board at one stage wanted to put its house in order by preventing quacks from selling poisons and certain pharmaceutical drugs without the supervision of qualified pharmacists, but the best way to do this is to diligently assemble all the relevant evidence of any contravention of the law and confront the misbehaving pharmacist with that evidence. Nothing must be held back, otherwise there could easily be miscarriage of justice.
Had the evidence of the shop assistant, the owner of the building containing the shop, and some persons made to purchase drugs in the premises been made available before the Committee to confront the respondent, the result of this case perhaps might have been different. But as the case stands, the best that can be discerned against the respondent is suspicion that he permitted the photocopy of his licence to be used for wrongful purpose or illegally used for running a pharmaceutical shop. Suspicion can at best lead only to investigation but it is never on its own evidence of guilt.
It is for these reasons that I dismissed this appeal and made no order as to costs.
OBASEKI, J.S.C. (Presiding): This appeal came up for hearing on the 29th day of September, 1986 and after hearing the submissions of counsel and reading the briefs of argument, I dismissed the appeal for lack of merit. I then reserved my reasons for the judgment till today. I now proceed to give them.
However, before now, I had the privilege of a preview of the draft of the Reasons For Judgment just delivered by my learned brother, Belgore, J.S.C. Those reasons accord with the reasons that motivated me to dismiss the appeal.
The questions for determination in the appeal were twofold: the first is whether Exhibit B was not enough to satisfy the requirement of a certificate under the hand of the Pharmaceutical Registrar that the premises No. 49 Akeju/Dabiri Street, Shomolu, Lagos was not registered with the Board as required by section 22(1) of the Poisons and Pharmacy Act (Cap 152). The second question is whether there was or not sufficient evidence on record to support a finding of “guilty of infamous conduct” after expunging the hearsay evidence given by Mr. Oyetunji, admitted and acted upon by the Pharmacists Disciplinary Committee. Leave to argue this second question was subsequently refused.
The respondent was arraigned before the Pharmacists Disciplinary Committee on a charge of running pharmacists business in an unregistered premises to wit: 49 Akeju/Dabiri Street, Shomolu, Lagos – which amounted to infamous conduct punishable under section 11(1) of the Pharmacists Act, 1964. He was tried and found guilty on the evidence of a sole witness, Mr. Oyetunji who investigated the complaint. The direction issued reprimanded the respondent and ordered him to pay costs fixed at N1,000 (one thousand Naira). The respondent then appealed to the Court of Appeal on the ground that his conviction could not be justified by the evidence and succeeded. The finding of the Disciplinary Committee together with the direction was set aside and the respondent was acquitted and discharged.
Against the decision of the Court of Appeal, the Pharmacists Disciplinary Committee has appealed to this Court. At the hearing, the appellant sought leave to raise the point ‘that the issue of the Disciplinary Committee basing the finding of guilt of the respondent on hearsay evidence was taken suo motu by the Court of Appeal but leave was refused as the record of proceedings disclosed that the issue was raised by the respondent and highlighted in the submission of his counsel to the Court of Appeal. The appellant’s counsel was therefore left with only one ground, an innocuous ground, complaining of the error of the Court of Appeal in failing or refusing to hold that Exhibit B satisfies the requirement of the Registrar’s certificate that the premises complained of was unregistered under subsection (6) of section 22 of the Poisons & Pharmacy Act Cap 152.
Admittedly, a few lines to that effect under the hand of the Pharmaceutical Registrar would have provided a more satisfactory piece of evidence but the fatality of the absence of such evidence was eliminated by Exhibit B, the query from the Board signed by the Registrar to the respondent together with Exhibit C, the answer to Exhibit B submitted to the Registrar by the respondent. Both Exhibits sufficiently raise the inference that the premises were not registered by the respondent for the running of his pharmacy business as required by section 22(1) of the Act. I therefore find substantial merit in this ground of appeal. The success of this ground of appeal, however, is insufficient to determine the appeal in favour of the appellant in the absence of any admissible evidence that the respondent was running his business on the premises. The Disciplinary Committee being charged with the discipline of pharmacists registered under the Pharmacists Act 1964 is bound by the Rules and Law of Evidence when exercising the disciplinary jurisdiction. See 2nd Schedule to the Pharmacists Act 1964. See also Rule 4 of Pharmacists (Disciplinary Committee and Assessors) Rules 1975. See Section 76 Evidence Act Cap 62.
The Disciplinary Committee in breach of the hearsay rule in the Law of Evidence, admitted and founded their decision of guilt on the hearsay oral evidence given by the only witness called by the Board to testify for the prosecution. The Court of Appeal was therefore justified in holding that such evidence is not legal evidence and amply justified in expunging the hearsay evidence from the evidence for consideration in the prosecution. The expunction of this hearsay evidence left the prosecution without evidence to prove the two vital elements in the charge. i.e. (1) the display of the respondent’s certificate by the respondent in the said premises and (2) the running of the pharmacy business by the respondent on the premises. The failure to establish and prove these two vital elements was fatal to the prosecution and accordingly the Court of Appeal was justified in allowing the appeal to it, setting aside the decision of the Disciplinary Committee and acquitting the respondent of the charge of infamous conduct.
There was therefore no merit in the appeal.
For the reasons set out above and in the Reasons for Judgment delivered a short time ago by my learned brother, Belgore, J.S.C., I dismissed the appeal on the 29th day of September, 1986.
ESO, J.S.C.: The issues which agitated my mind before I dismissed this appeal on 29th September, 1986 were two fold. The case itself is one of a criminal charge of infamous conduct contrary to section 11 of the Pharmacists Act 1964. For a professional pharmacist to be charged with infamous conduct under the Pharmacists Act is a very serious matter and the charge must be proved per adventure.
Ex. B which was the accusation levied against the Respondent by the Registrar of the Pharmaceutical Board of Nigeria is the first of the two issues 1 have referred to (supra). It reads-
“Allegation of Professional Misconduct Arising From Use of Photocopy of Annual Licence To Operate Unregistered Pharmaceutical Premises.”
This office has received a report of the use of the photocopy of your practicing annual licence in the operation of an unregistered pharmaceutical premises at 49, Alhaji Dabiri Street, Shomolu.
“Would you please within one month of the date of this letter show cause why disciplinary action should not be taken against you”
The question arising thereupon and in respect of which the majority of the Court (Ademola and Nnaemeka-Agu JJCA) held could not satisfy the requirement of the certificate that the premises in question was not registered notwithstanding Ex C a letter written by the Respondent which does not deny being the owner of the Certificate. Kutigi JCA who dissented held the certificate was sufficient as there was no form prescribed by the Poisons and Pharmacists Act (Cap 152).
I am inclined to agree with Kutigi, J.C.A. on this point and I think the majority of the Court of Appeal (Ademola and Nnaemcka-Agu JJCA) were in error when they held that Ex B. the letter reproduced above coupled with Ex C (the reply to the letter would not be sufficient to prove that the premises was not registered. There is no gainsaying it on the evidence that the premises was not registered. But that is not the end of the matter. The fact that the premises was an unregistered premises as required by law is not sufficient to convict the Respondent for an infamous conduct.
It is in regard therefore, that the second point to wit: that proof must be required that the Respondent owned the place. I am in complete agreement with the Court of Appeal that there was no proof of this. The attendant who could have given such evidence (for it was he who made a statement to the police to that effect and there is no evidence of his non-availability) was never called.
The sum total of this is that the Respondent was wrongfully convicted by the Pharmacists Disciplinary Committee and the Court of Appeal was right in allowing his appeal and quashing the conviction. For these reasons and the fuller reasons given by my learned brother Belgore JSC. a preview of which I respectfully had, I dismissed the appeal of the Appellants the Pharmacists Board of Nigeria. There will be no order as to Costs.
NNAMANI, J.S.C.: On the 29th September. 1986. I dismissed this appeal and indicated that I would give my reasons for that judgment today. I now give my reasons.
The appeal in this matter in which a Registered Pharmacist Frank Adegbesote, was charged with infamous conduct turned on a narrow compass. The respondent had been tried and convicted of an act of infamous conduct under Section 11 Subsection I of the Pharmacy Act of 1964. His guilt arose from an alleged display and use of photocopy of his annual licence to practise as a Pharmacist in an unregistered premises. The respondent was reprimanded by the Disciplinary Board and ordered to pay N1,000.00 being cost of the proceedings. His appeal to the Court of Appeal succeeded by a majority of two justices (Ademola and Nnaemeka-Agu, J.J.C.A.) to one (Kutigi, JCA) although it is pertinent to mention here that the court was unanimous on the point on which the appellant ultimately failed in this court as I shall show Anon.
Having failed to persuade this Court to allow an additional ground, only one ground of appeal was argued. It complained that:
“The Court of Appeal misdirected itself in law and on the evidence by failing to observe that Exhibit B which is a query written by the appellant Registrar to the respondent shows that the offence or misconduct is about displaying photocopy of a professional licence in an unregistered premises and that Exhibit C impliedly admitted that the premises is unregistered.”
It was the contention of learned counsel to the appellant, Shola Rhodes that Exhibit B was sufficient to show that the premises was registered, and that there was no need for another document under the hand of the Registrar as decided by the Majority of the Court of Appeal. Exhibit “B” which was a letter from the Registrar to the respondent was in these terms:
“PHM/PH.424/VOL.1/15 6th August, 1981
Mr. F. A. Adegbesote,
Nigerian Medicine Stores,
4, Tinubu Square,
Lagos.
Allegations of professional Misconduct arising from Use of Photocopy Annual Licence To Operate Unregistered
Pharmaceutical Premises.
This office has received a report in respect of the use of the photocopy of your practicing annual licence in the operation of an unregistered pharmaceutical premises at 49 Akeju/Dabiri Street, Shomolu. Would you please within one month of the date of this letter show cause why disciplinary action should not be taken against you.
(Sgd.)
M. C. Azuike,
Ag. Registrar/Secretary”
Of this exhibit Ademola JCA said in his judgment:-
“In the instant appeal, the evidence of Mr Oyetunji which was believed, revealed that appellant professional licence was displayed at the shop at 49 Akeju/Dabiri Street but left unanswered whether the place was registered or unregistered under the Act. In my view the evidence of what Mr Oyetunji was told as to appellant owning the shop by a shop attendant is not evidence of the shop being unregistered. That evidence cannot be what should be on the Register kept by the Registrar under the Act. Evidence of such registration or non-registration of the shop must be a document in form of a certificate given under Section 22(6) of the Act Cap 152………
My view is that Exhibit B is clearly not a Certificate for the proof of the shop being unregistered”
Section 22(6) of the Poison and Pharmacy Act Cap 152 provides as follows:-
“A document purporting to be a certificate signed by the Pharmaceutical Registrar stating that, on a specified date, specified premises were, or were not registered under this section shall be admissible in any proceedings as evidence that these premises were or were not registered on that date.”
In effect the majority Justices of the Court of Appeal were saying that even if there was some material given by the Registrar from which it can be inferred that a premises was unregistered this would not suffice. There must be a document stating that. I am afraid I cannot subscribe to that opinion. As Mr. Rhodes rightly submitted before this Court, there is no proforma of the certificate which the Registrar has to issue under Section 22(6) of the Act. I think that that portion of Exhibit B in which the Registrar stated;
“the operation of an unregistered pharmaceutical premises at 49, Akeju/Dabiri Street, Shomolu.”
was sufficient to support the inference that that premises was unregistered. In any case from the contents of Exhibit C, the reply of the respondent to Exhibit B, it was never disputed that the premises was unregistered. The respondent’s case was rather to deny that he was the owner of the premises or that the photocopy of his licence was used to operate it. There is therefore substance in Mr Rhode’s submission, and if that was all that there was in this appeal, it would have succeeded.
Unfortunately it is not. The vital point of whether the respondent was the owner of the premises and was in fact operating it was never proved by credible evidence. The shop girl who allegedly gave this information to Mr Oyetunji was never called to give evidence before the Disciplinary Board.
It was a costly error. The evidence on this issue on which the Board acted was hearsay evidence and was clearly inadmissible. On this the Court of Appeal was unanimous and I enitrely agree with them. It was for these reasons, and for the more detailed reasons contained in the judgment of my learned brother Alfa Belgore, JSC, the draft of which I saw before now, that I dismissed this appeal with no order for costs.
SC.68/1986
