Surgeon Captain C. T. Olowo V. The Nigeria Navy (2006)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an appeal brought by the appellant against the confirmation by the Navy Board, of the conviction and sentence of a General Court martial herein referred to as “GCM” delivered on 21st February, 2002.

The appellant was until his said trial and conviction the Captain Medical Centre (CMC) of the Naval Medical Centre, Mobil Road, Apapa, Lagos. He as in other words a consultant obstetrician and Gynaecologist and former Commander of the Nigerian Navy at the said centre.

By a convening order dated 17th September, 2001, the Flag Officer Commanding (FOC) Western Naval Command convened the said GCM to try the appellant on a one count charge of failure to perform military duties contrary to section 62 (b) of the Armed Forces Decree 105 of 1993 (as a ended).

At the appellant’s arraignment but before the charge could be read to him, he raised a preliminary objection challenging the jurisdiction of the court martial to entertain the charge against him and which was overruled. Consequent upon reading the charge, the accused/appellant pleaded not guilty thereto.

In proof of the case against the appellant, the prosecution called eight witnesses (including one expert) and also tendered exhibits. At the close of the prosecution’s case, the defence put up a no case submission which was consequently overruled by the court martial in its considered ruling. The appellant in his defence therefore called six witnesses (including two experts) and also tendered exhibits. At the close the case for both parties, their respective counsel submitted written addresses, which were read and amplified upon in open court. The Judge Advocate thereafter made his summing up and advise the court following which the GCM on the 21st February 2002 delivered its judgment wherein it found the appellant guilty and sentenced him to be reduced from the rank of Captain to Commander of four years seniority from the date of confirmation of sentence.

The sentence was duly confirmed by the Navy Board on 16th December 2002. This appeal is therefore the result of the appellant’s dissatisfaction with the decision. By a motion dated 14th February, 2003 for leave to appeal against the judgment, this court vide its order dated 19th June, 2003 granted leave wherein the appellant on the 24th filed his Notice of Appeal dated 2nd day of June, 2003. The said notice contained six grounds of appeal. The appellant was also granted a departure order by this court from the rules on the 4th March 2004.

Both parties filed and exchanged their briefs of arguments. While that of the appellant was undated but filed on the 3rd June, 2004 pursuant to a deeming order obtained 17th February, 2005, the respondent’s brief was however dated 13th and filed on the 14th March, 2006.

On the 21st September, 2006 the learned counsel Messrs A.M. Lawal and J.A. Asemota for the appellant and respondent adopted and relied on their respective briefs of arguments. From the six grounds of appeal filed b the appellant, four issues were distilled for determination as follows:-

1. Whether the General court martial was right to assume jurisdiction on the count charge against the appellant for a matter that was no more than a professional misconduct if any.
2. Whether the trial of the appellant violates his constitutionally guaranteed right to fair hearing under section 36 of the 1999 constitution of the Federal Republic of Nigeria.
3. Whether having regard to the totality of the evidence adduced and the entire circumstances of this case the court martial was right in holding that the appellant was guilty of negligence
4. Whether the failure of the General Court martial to properly evaluate the evidence before it did not occasion a miscarriage of Justice.

With the issues arising from grounds of appeal nos 1, 4, 3 and 2 & 6 respectively, ground no 5 is there ore abandoned and accordingly struck out.

The respondent in response to the appellant’s brief adopted the same four issues as formulated by the appellant verbatim.

The learned appellant’s counsel in orders of priority argued the issues in an ascending order of 4, 3, 2 and 1. With issue no. 1 touching on the question of jurisdiction, it would be appropriate in my view that same should be first determined, especially where the absence of jurisdiction would result in all proceedings of no legal effect whatsoever. I would therefore consider the issues in a descending and not ascending order as submitted by the learned appellant’s counsel. In other words issue no 1 would first be determined followed by issue no 2 and issue no 3 would be taken together with no 4 since they are very much interrelated.

The appellant was tried and convicted by the General court martial on a one count charge under section 62(B) of the Armed Forces Decree 105 of 1993 as mended, and the charge which read as follows:-

“That you surgeon Captain C.T Olowu (NN/0613) on or at about 2nd April, 1999 at Naval Medical Centre, Mobil Road Apapa, Lagos, did perform your duties negligently as consultant Obstetrician and Gynaecologist which resulted in the mismanagement of Mrs. Joy Bassey’s labour – a known high-risk gynecological patient.”

At the end of the prosecution’s case the defence made a “no case submission,” which was overruled and was asked to open its case. At the conclusion of the trial, the court found the appellant guilty as charged and was sentenced to:-

“Reduction in rank from captain to commander of four years seniority from the day of confirmation of his sentence.”

The appellant’s first issue was whether the General Court Martial was right to assume jurisdiction on the one count charge against him for a matter that as no more than a professional misconduct if any. This issue arises from the preliminary objection raised by the defence before the commencement of the trial at the court martial pursuant to section 137 of the Decree. The bond of contention in summary estates that the trial court lacked the jurisdiction and therefore not competent to enquire into the professional exercise of a medical discretion. Learned appellant’s counsel argued that by the provision of section 36(12) of the 1999 constitution, no person shall be convicted of any offence that is not contained in a written law. That with the allegation upon which the charge against the appellant brings one deriving from an alleged professional misconduct as a medical practitioner, same does not and cannot constitute any criminal offence known to law. The counsel relied on section 15 of the Medical and Dental practitioners Decree 23 of 199 as the body vested with the jurisdiction to inquire into the exercise of professional discretion.

That the General Court Martial being a court faced only with criminal jurisdiction, same therefore lacked the requisite jurisdiction and is incompetent to inquire into the exercise of a medical professional discretion. He further drew an analogy with the Legal Practitioner’s Disciplinary Committee (LPDC) as the body charged with the power to try lawyers for crime of professional misconduct. That the nature of the facts of this case pertaining to failing to perform a surgery cannot be synonymous to failure to perform military duties. Reference was made to the authority in the case of Aoko v. Fagbemi (1961) All NLR 400. Furthermore that on the authority of Tsaka v. State (1986) 1 NWLR (Pt.17) 156, it was held that failure to state particulars of offence render the charge defective and consequent to which trial on such charge should fail as the court would lack the jurisdiction to entertain same. Learned Counsel cited the The Blacks’ law dictionary, sixth edition at page 992 wherein the word military was defined as:-

“Pertaining to war or to the army; concerned with war.

Also the whole of military forces, staff etc under the department of defence.”

Counsel therefore argued from the definition that failure to perform military duties will be failure to perform duties pertaining to war or concerning war. That a military officer performing or failing to perform a surgery cannot be categorized as failure to perform military duties. That the charge under which the appellant was brought before the court martial was not only ambiguous but also made it difficult for the accused to locate the precise offence for which he was charged. That the exercise of professional discretion of a medical practitioner is not within the contemplation of section 62 (b) of AFD 105 of 993 and consequent to which the charge was bad for ambiguity. Reference was made to the case of Medical and Dental Disciplinary Tribunal v. Okonkwo (2001) 4 SCN 78. The learned counsel urged this court to allow the appeal on this ground.

I have restated earlier in this judgment that the importance of jurisdiction is trite and upon which the powers of court is predicated; in the absence which a proceeding no matter how well conducted is an exercise in futility. Where a court lacks the jurisdiction, the question of competence does not arise. A court however could have the jurisdiction wherein the subject matter is therein but lacks the competence and thus vitiating the effect of the former. The two go hand in hand and are dependant on the other but not the same. The distinction between the two has been well spelt out in the case of Ibeanu vs. Ogbeide (1994) 7 NWLR (pt. 359) 697, which was cited in the respondent’s brief of argument.

At pages 700 – 701 of the report, this court for instance had the following to say:-

“Competence of court is the hand maiden of the jurisdiction of a court. There is sometime the tendency to equate jurisdiction of a court with its competence as if the two mean one and the same thing. This is not so. A court must have that jurisdiction and competence to properly be seized of a cause or matter. A court is competent when:-

(a) it is properly constituted with respect to the number and qualification of members;

(b) the subject matter of the action is within its jurisdiction and there is no feature in the case which prevent the court from exercising its jurisdiction;

(c) the action is initiated by the due process of law; and

(d) any condition precedent to the exercise of it’s jurisdiction has been fulfilled.”

The same principle was applied in the case of Okoro v. Nigerian Army Council (2000) 3 NWLR (Pt. 647) 77 at 80.

As rightly submitted and recapitulated by the learned respondent’s counsel, the appellant’s line of argument has raised the jurisdiction of the court two operational factors martial as follow:-

1. That by nature, the subject matter, being an allegation of professional misconduct, same should have been handled by the Medical and Dental council pursuant to the provision of section 15 of the medical and Dental practitioners Decree 23 of 1998.
2. That the charge against the appellant was ambiguous as it did not sufficiently inform the appellant of the allegation against him.

The learned respondent’s counsel in response to the appellant’s contention supra, submitted the argument as misconceived and lacking in merit. This he predicated on the counsel’s inability in understanding the military set-up and which is made up of professionals of all fields.

As rightly submitted by the learned respondent’s counsel, with professionals of diverse specialties employed in the army, disassociating them or their exclusion from the military justice system would certainly amount to an absurdity. This I hold especially in the absence of any excluding provision to the effect. Furthermore, and with reference to the defence’s final address at page 793 of the record, paragraph 2 serves an affirmation by the defence itself. Same reads as follows:-

“a. That Capt. C.T. Olowu, the accused is within the meaning of Decree 105 of 1993 an officer of the NN, hence subject to service law.

b. That Captain C.T. Olowu as the Captain medical centre (CMC), Malu Road as of the time of the incident in question before this general Court martial (GCM).”

The provision of section 2 Rules of Professional conduct for Medical and Dental practitioner in Nigeria relied upon by the appellant states as follows:-

“The Medical and Dental professions in Nigeria are regulated by the Medical an Dental Practitioners Act Cap 221 Laws of the Federal Republic of Nigeria 1990 (Decree of 1988) which set up the Medical and Dental Council of Nigeria with the following responsibilities.

By provision (C), the council is empowered to make rules for professional conduct and is also empowered to establish the Medical and Dental Practitioners Investigation Panel and the Medical and Dental Practitioners Disciplinary Tribunal for the enforcement of these rules of conduct. These Rules of conduct serve as guiding standards in the relationship of Medical and Dental practitioners with the profession, their colleagues, their patient, member of allied professions and the public.”

Section 46 (a) (i) of the same rule also states:-

“The Medical and Dental Practitioners panel is a court of first hearing in matters of alleged ethical misconduct that are properly brought before the medical and Dental Council of Nigeria.” (underling mine).

It is a fact that the charge against the appellant accused him of a negligent performance of his duties. The phrase ethical misconduct related in section 46(a)(1) of the rule supra hinges on morality which may not necessity be of a criminal nature. As rightly submitted by the learned respondent’s counsel, the appellant was at all times material to this case a person subject to service law. This was not only agreed upon by the appellant’s counsel on the record earlier stated supra, but also by both parties in this appeal on their briefs of arguments. The appellant was a Naval Officer on the regular list, performing Military duties as a doctor in a Naval Hospital.

Section 62 and specifically (b) of the AFD under which the appellant was charged reads as follows:-

“62 A person subject to service law under this Decree who

(a) ………..

(b) neglects to perform, or negligently performs, a duty of any description,

is guilty of an offence under this section and liable on conviction by a court martial…………….”

Section 15 of the Medical and Dental Practitioners Decree 25 of 1998 and specifically subsection (3)(a) reproduced states as follows:-

“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 my other reason be the subject of proceedings before the disciplinary tribunal; …………….”

As rightly submitted by the learned respondent’s counsel, the cumulative deduction of the provision does not confer exclusive jurisdiction for the trial of doctors for negligence on the Medical and Dental Council or did it oust the jurisdiction of other courts. In consequence therefore and having regard to section 25 of the interpretation Act (Cap. 192) Law of the Federal Republic of Nigeria (LFN) 1990, there is nothing precluding the trial of the appellant by the court martial. The section dealing with offences under more than one law says:-

“25. where an act constitutes an offence under two or more enactments or under an enactment and at common law, the allege offender shall be liable to be prosecuted and on conviction punished under anyone of the enactments or, as the case may be, either under the enactment or at common law, but shall not be liable to be punished twice for the same offence”

Again and as rightly submitted by the learned respondent’s counsel, the trial of the appellant, contrary to the arguments by his counsel, was properly conducted by the GCM as the offence constituted negligence under section 62 (b) of the Armed Forces Decree 105 of 1993. This is regardless of the offence amounting to a misconduct under the Medical and Dental Practitioners decree 23 of 1998.

The argument by the appellant’s counsel which ever way it goes does not support his case. In my humble view therefore, the reference made to the constitutional provision of section 36(12) and the authorities submitted thereunder together with the definition of “a military duty” all run foul to the appellant’s case.

On further submission by the appellant’s counsel on the nature of the charge, the learned respondent’s counsel urged us to reject same especially when it was not made an issue by way of objection at the inception of the trial. That the appellant as an obstetrician and gynecologist was a very senior officer in the Nigerian Navy and was therefore left in no doubt as to the allegation against him which was read and explained to him by the Judge Advocate. Reference was made at great length in support of the submission.

Without having to belabour the point, it is as rightly submitted by the appellant’s counsel that it is not part of our criminal justice system that the contents of a charge should be subject of speculation and interference as rightly stated in the case of Medical and Dental Disciplinary Tribunal v. Okonkwo supra. The question however is whether the charge was either ambiguous and difficult for the accused to locate the precise offence for which he was charged.

At pages 5 and 6 of the record of appeal, the judge advocate in very clear terms read out the charge to the appellant, who affirmatively confirmed that he understood same. Similar repetition was also made at pages 26 and 27 of the record wherein the appellant was referred to “as a person subject to Armed Forces Decree 105, 1993 as amended. The charge was again read out to him at page 27 and which he agreed to have understood.

From all indications there was no iota or stretch of imagination that the appellant as at all left in doubt as to the nature of the charge against him. This is because by his status of being a consultant in his specialty, he is no doubt a very well and enlightened person who certain was fully aware of all the events of happenings around him. The authority of the case of Tsaka v. State supra requiring the state of particulars of offence in a charge and relied upon by the learned appellant’s counsel does not aid his case in this matter. In other words, the charge at hand is neither defective nor ambiguous, and on sequent to which the 1st issue raised by the appellant therefore fails together with ground one of the grounds of appeal, thereto.

The 2nd issue is whether the trial of the appellant violates his constitutionally guaranteed right to fair hearing under section 36 of the 1999 constitution of the Federal Republic of Nigeria.

In his submission on this issue, the learned appellant’s counsel reiterated that the constitutional recognition and approval of the exclusive application of Military Law (i. e Decree 105 of 1993) to the Military Community does not derogate from the constitutional safeguards under our constitution. In other words that military trial are subject to section 36 of our constitution and other legal provisions guaranteeing and safeguarding the fundamental right of the accused person to a fair hearing. Great and emphatic reference was laid on the binding nature of BR II on the court martial by virtue of section 181 of the Decree as laid down in the regulatory Rules in chapter 17 reproduced thereof. The counsel regrettably highlighted the impartial role played by the president and members of the General Court Martial in the failure to comply with the provisions of chapter 17 in the conduct of the proceedings. The cumulative accusation in other words was that the members descended into the arena and conducted the case as if they were part of the prosecution team. That a close looks at the record would show that the resident and members of the court martial were not fair to the accused throughout the entire trial. That the impartiality was glaring even by reason of the questions and devastating nature of the cross- examination of the defence witnesses compared to those of the prosecution. Reference in support was made to this court’ decision in the case of Olaiva v. Chairman Medical and Dental Practitioners Investigating Panel and ors (1997) 5 NWLR (Pt. 506) 560 at 563 – 564. That on the record of proceedings it is clear that the General Court Martial did not follow the laid down rules in the conduct of the trial. Counsel cited the authority of Mohammed v. The Nigerian Army (1998) 7 NWLR (Pt. 57) 232 on the expectation of the GCM. That the test is not whether or not the president and members were actually biased in the circumstance. Rather, the test is and has always been, whether in the given circumstance there was a real likelihood of bias on the part of the president and members, and which the appellant’s counsel submit an overwhelming positive evidence. Counsel cited a number of authorities in support of his contention as follows:-

Chief E.J.A Opeola & Ors v. S.O.S. Opadiran & Anr. (1994) 5 NWLR pg. 344 at 368; Abiola v Federal Republic of Nigeria (1995) 7 NWLR (pt. 405) 1 at 23 – 24; Anyebe v. Adesiyun (1997) 5 NWLR (Pt. 505) 403 at 423 – 424; L.P.D.C. vs. Fawehinmi (1985) 2 NWLR (Pt. 7) 300.

Furthermore that a fore-knowledge or a previous knowledge of the facts of a pending case is reasonably likely to bias or influence the mind of a judicial Counsel in support cited the case of Akoh v. Abuh (1988) 3 NWLR (Pt.85) P. 720 following J.O. Abbey v. A.L. Lamptey (1947) 12 WACA 156. That the provision of section 22 of the Evidence Act Cap. 112, LFN, 1990 cannot salvage the conduct of the president and the members. Further reference was also made to the decision in the case of Alhaji Salami Oteju & Ors vs Okeolu Oluguna & Ors (1992) 8 NWLR (Pt. 262) 752 per Niki Tobi (JCA) as he then was.

Learned Counsel therefore urged us on this issue to hold that there has been, in this appeal a gross violation of the appellant’s constitutionally guaranteed fundamental right to a fair hearing and to allow the entire appeal on this ground.

In response to the said issue, the learned respondent’s counsel not only submitted the appellant’s argument as misleading but that which also tantamount to crying wolf where none exists. In the determination of the concept of the doctrine of fair hearing, the learned counsel further submitted the test as going beyond hand picking of few questions put to witnesses by the trial court. Rather it is that which encompasses the entire trial from the composition of the court to judgment. That no reasonable man viewing the trial of the appellant would have concluded that same was not fair. That the appellant’s trial was consistent with the decision in the case of Matari and Ors vs Dangaladima (1993) 11 LRCN 335 at 338.

Learned counsel submit the technical nature of the case before the GCM and which involved the use of medical terminologies and jargons and hence requiring explanation to members who were mostly regular Naval Officers. That it is in no doubt that the GCM performed excellently well in the determination of the appellant’s case. That the selection of few questions by the appellant to support bias, is only calculative of an attempt to again mislead this court and give their own meaning to the actions of the court. That the evidence of DW6 was completely irrelevant to the case at hand and learned counsel urged us to hold that the GCM did not breach the appellant’s constitutional right to fair hearing. Counsel therefore urged for the dismissal of the said issue and ground of appeal no. 4 upon which predicated.

The second issue is whether the trial of the appellant did not violate his constitutionally guaranteed right to fair hearing as provided under section 36 of the constitution of the Federal Republic of Nigeria 1999.

Rule 1703 of chapter 17 of the B.R. II regulates the conduct of the President and members of the GCM. It is applicable to Naval Court martial by virtue of section 181 of the Armed Forces Decree 105 of 1993 and States that the president:-

“………….must ensure that he and the members of the court adopt a strictly impartial attitude throughout the proceedings, particularly when questions are put to witnesses by members of the court. It is, indeed, advisable that the president shall require all such question to be put to the witnesses by himself or with his permission as a safeguard against impropriety”

It follows therefore that the GCM, like any court of law or tribunal, is bound to observe the rules of natural justice relating to fair hearing, which doctrine has well been expounded in the decision of Adeloye vs Olona motors Nigeria Ltd. (2002) 8 NWLR (Pt 769) 445 wherein this court had thus to say at page 449 as follows-:

“The doctrine of fair hearing is double edged and may favour or protect either of the parties to the proceedings depending on the circumstances of the case and the conduct of the parties. In other words, the question whether or not there was a breach of fair hearing against a party to a judicial proceedings is an objective one, based on the hypothetical view of a reasonable person who witnessed the proceedings from its beginning to conclusion……………….”

Along the same premise, Professor De Smith In his book – Constitutional and Administrative Law (2nd Edition) at page 577 made the following observation and said:-

“In formulating the test for determining whether or not there was bias in 99 cases out of 100, it is enough for the court to ask itself whether a reasonable person viewing the facts would think that there was a substantial possibility of bias.”

As rightly contended by the learned respondent’s counsel, the appellant was given all the facilities he needed for his defence. There was no indication on the record that such was refused him whatsoever. He was adequately represented by two counsels. He did not object to the composition on of the GCM vide section 137 of the Armed forces Decree (Act). He testified on his own behalf as DW3 at pages 405 to 567 of the record of appeal. He also called five witnesses including two experts, who were (Prof. Ilesanmi and Commodore (Dr) Augusta Ofili) who were DW (iv) and DW (v) respectively. There is no indication that any of the said witnesses was either hindered or refused to give his evidence. The consistency of the procedure calls to bear the pronouncement made in the decision of Matari and ors vs. Dangaladima cited by the learned respondent’s counsel supra wherein at page 338 of the report their Lordships had this remark to say:-

“To give adequate opportunity to each party in litigation to state his case is clearly in the area of fundamental rules of fair hearing. It cannot be waived or compromised. After all, fair hearing is nothing but what appears to be a fair trial to every right thinking observer in the circumstances of the particular hearing. See Muhammed vs Kano NA (1968) 1 All NLR 424; Kotoye v. Central Bank of Nigeria and ors. (1989) 419.”

It is obvious that the impartial expectation of a court or tribunal cannot be over emphasized as rightly submitted by the learned appellant’s counsel. This has been restated in the case of Obadara and ors v. President, Ibadan West District Grade D customary court (supra) wherein their Lordship of the Apex court of the land had this to say at page 344 per Brett, CJN (Ag) and same which has become a celebrated speech:-

“The principle that a judge must be impartial is accepted in the jurisprudence of any civilized country and there was no ground for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow English decisions”

In otherwords, there is no alternative to an acceptable concept of justice. Justice is truth and both go along one path way since they both stem from the same compartmental units which are non separable. Its concept speaks one universal language in carrying the same meaning. A court must therefore be impartial to uphold justice no matter where, what society and the law applicable.

On further need for judges to be impartial in the dispensation of justice, the Supreme Court again in the case of David Uso vs C.O.P (1972) 11 SC 37 at 45/47 held and said:-

“In our system of criminal trial, the judge as umpire is not expected to descend into the arena. This illustrates the difference between the accusatorial and the inquisitorial methods of trying an accused person – the difference between the Anglo-Saxon and the Civil Law systems. Our procedure is accusatorial in the sense that the innocence of the accused is presumed until he is proved guilty by the prosecution. Under the inquisitorial system of trial, which obtains in most continental legal systems, the judge plays a dynamic role in cross-examining litigants and witnesses and the accuser’s guilt is presumed until he proves his innocence.”

Other and further related authorities against bias are:- Okoduwa vs State (1988) 2 NWLR (Pt.9 ) 333; Obiora vs Osele (1989) 1 NWLR (Pt.97) 279; and Abodunrin vs Arabe (1995) 5 NWLR (Pt.393) 77 at 97.

The General Court Marital is bound to observe the rules of natural justice as rightly submitted by the learned: appellant’s counsel and as illucidated in the court’s decision of Mohammed vs. The Nigerian Army; therein, Pats Acholonu JCA (as he then was and of blessed memory) amongst others said thus at pages 253 -254, on principles governing fair hearing of criminal cases.

“where in the trial of a criminal case the court or tribunal shows by its approach to, or conduct or utterances in the case that it nurses a preconception of the guilt of the accused, the entire proceedings would be vitiated because of its contravention not only on section 33(1) and (4) of the 1979 constitution but also of section 33(5) of the constitution………….where a court or tribunal of justice unwittingly proceeds to make the statements in the course of proceedings which go to impugn the integrity of the trial as in this case, the trial cannot be said to be fair.” ………….. A trial where the court constitutes itself into a prosecutor and took its duties and made disparaging and heavily loaded remarks disfavourable to the accused or any party would produce traumatising effect on a party and demoralize his counsel…. ”

In the case under reference, the court made statements in the course of proceedings which go to impugn the integrity of the trial, thereby vitiating same. With due respect to the learned appellant’s counsel, the case under reference is remarkably and very distinguishable from the one at hand, with the facts of the cases very much different especially when considered in the light of the case of Olaiya vs. Chairman Medical and Dental Practitioners Investigating panel supra an cited by the appellant’s counsel. In that case, the entire proceedings of the tribunal were vitiated by reason of bias and prejudicial interferences by the tribunal in that at several points in the course of the proceedings the chairman and members descended into the arena. This amounted to bias because:- (i) the tribunal made a finding of fact before the close of the case and (ii) it also made statements which properly should be made by a witness in the case. The appeal was consequently allowed on the issue of failure to observe the rules of fair hearing. In the matter under consideration in this appeal, the General Court Martial unlike a regular court was constituted of six members and each had the right to ask questions for purpose of clarification of issues. In the case of Salami Oteju and others vs Oke and others cited by both learned counsel supra Tobi JCA (as he then was) clearly spelt out situations giving rise to bias by reason of descending into the arena. At pages 766 – 767 of the report, the learned jurists made the following remarks and said:-

“…………

In so far as the trial judge does not lose his balance as the independent arbitrator in the course of asking questions an appeal court will not interfere…………but the moment a trial judge leaves his exalted and independent position that the law has “sacredly” placed him and moves into the arena of the contest by asking probing and searching questions with a view to finding for one of the parties and therefore against the other party, an appellate court will certainly intervene in favour of the party who is a victim of the judge’s questions…………the judge can no longer be said to be holding the balance evenly, rather he will be said to have swayed one way in the litigation processes in favour of a party…………He is no longer the independent arbitrator or adjudicator …………

From the record of appeal before us, it is glaring that PW4 like DW 6 was also subjected to an extensive questioning by the General Court Martial especially on the meaning of meconioum stain. Comparatively, the subjection of DW 6 was certainly not beyond or outside the expected questions of six member panel. In a further related authority of the case of Federal Republic of Nigeria vs. Abiola (1995) 31 LRCN 265 their Lordships of the apex court at page 268 for instance had this to say:-

“The test of a really likelihood of bias which the courts have applied is based on the reasonable man who is fully appraised of the facts involved.”

On the allegation of the appellant’s counsel of previous knowledge of the facts likely to prejudice the minds of the members, this has not been substantiated as it did not transcend into their actions. It is only when evidence abounds of the members losing their balance as an independent arbitrator in the course of asking questions, that bias could be said to have set in. This was the view held in the case of Salami Oteju & others v. Oke supra. Contrary to the submission by the appellant’s counsel, the members did not, in my humble opinion, go on a voyage of discovery as alleged.

Further still from the record of evidence at the court of trial, DW 6 whom the appellant saw as his star witness, was a house doctor at the Military Hospital Yaba. The witness’s evidence at pages 753 – 788 relates to what happened at the Military Hospital Yaba, where the patient was referred from Naval Medical Centre. With closer look at the charge against the appellant, same accused him of a negligent act committed at the Naval Medical Centre which has no bearing whatsoever with the subsequent events at the Military Hospital, Yaba. The evidence of DW6, no matter its relevance to the defence/appellant, as he might have thought, same unfortunately is not related to the charge at hand and therefore very irrelevant. The witness is of no significance with his evidence completely outside the charge against the appellant. The bias allegation by the appellant therefore amounts to “much a do about nothing.” The questions regarding qualification and training of the witness had no effect on the court’s findings either.

It is unfortunate and very unbecoming of the learned appellant’s, counsel to cast aspersions at the lower court in the conduct of its proceedings without substantiating any evidence of bias against it. Extent and length of cross examination are no yardstick measures of pressure put on a party’s case, rather it is a means by which a court could clear grey areas for purpose of clearer understanding of the matter before it for the just determination of the case. Repeatative and extensive nature of questioning are neither derogative or a means of bringing a witness to disrepute, as wrongly submitted by the learned appellant’s counsel.

In the result, and contrary to the contention by the appellant, the GCM did not breach his constitutional right to fair hearing. The said issue no 2 together with ground 4 of the grounds of appeal therefore fail and are dismissed.

The 3rd and 4th issues have been consolidated into issue no 3. Same relate to whether or not the GCM properly evaluated the evidence before it; the absence which the appellant’s counsel argued occasioned a miscarriage of justice and thereby resulting in the improper conviction of his client.

It is the cardinal principle of our constitution that an accused is presumed innocent of an criminal charge against him and the duty squarely lies on the prosecution to prove all the ingredients or elements of the offence. The presumption of innocence has been enshrined vide section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria as a fundamental right of an accused. Plethora of authorities in support are section 138 (1) Evidence Act cap 112 Laws of the Federation of Nigeria 1990; the authorities of Aruwa vs State (1990) 6 NWLR (Pt 155) 125 at 135 – 136; and Alor vs State (1997) 4 NWLR (pt. 501) 571.

It is also settled law that it is the duty of the trial court, which has the privilege of seeing the witnesses to evaluate the evidence thereof and to ascribe probative value thereto. Where however, the trial court fails in its duty of proper evaluation, the appellate court can intervene. The authority in point is Bashaya vs State (1998) 5 NWLR (Pt. 550) 351 at 370 where it was held that:-

“the evaluation of evidence and ascription of probative value to it are the primary functions of the trial court that saw, heard and duly assessed the witnesses. When such functions are duly and correctly discharged by the trial court, an appellate court has no business of substituting its own views for that of the trial court. See Akinloye & Anor v. Eyiyola & Ors. (1968) NWLR 92 and Woluchem v. Gudi (1981) 5 SC 291.

The duty of the appellate court is to ascertain whether or not there is evidence upon which the trial court acted, and once there is such evidence the appellate court must not interfere with the trial court’s decision. See: Akpagbe v. Ogu (1976) 6 SC 63; Joshua Ogunleye v. Babatayo Oni (1990) All NLR 341; And Tambani Majama v. The State (1964) All NLR 205. “However, an appellate court may interfere with the findings of fact of a trial court here the latter failed properly to evaluate the evidence or make a proper use of the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from the accepted evidence or where its findings are shown to be perverse. See: Ojo v. Governor, Oyo State 1989) 1 NWLR (Pt. 95) 1; Eholor v. Osayande (1992) 6 NLR (Pt. 249) 524.

Other related authorities cited by the learned appellant’s counsel are Lions Buildings vs Shodipe (1976) 12 SC 125; Macaulay vs. Tukuru 1 NLR 35; and Adegoke v Adibi (1992) 5 NWLR (pt. 242) 410. A further authority of Akinsanya vs. Soyemi (1998) 8 NWLR (Pt. 560) 49 at 58 also laid down the guiding principles for evaluation of evidence by trial court.

Again in the case of Mogaji v. Odofin (1978) 4 SC 91 it was held on the matter of the evaluation of evidence that:- “In determining which is heavier between the evidence adduced by the plaintiff and that adduced by the defendant, the judge will naturally have regard to the following:

a) Whether the evidence is admissible.

b) Whether it is relevant

c) whether it is credible

d) whether it is conclusive

e) whether it is more probable than that given by the other party.”

In criticizing and challenging the proceedings of the General Court Martial, the learned appellant’s counsel vehemently submitted their non evaluation as required by law. Counsel referred to page 829 of the record of appeal for instance where he emphasized it merely summarized the conclusion. That the court never reviewed the evidence of the witnesses, let alone explaining why it preferred the evidence of one witness to the other. Learned counsel made due references and laid great emphasis on a number of witnesses wherein inferences were drawn on the failure of the court martial to have properly considered and evaluated the evidence given before it. On the evidence of the prosecution’s expert witness for instance counsel submitted its non prejudicial and that although same was favourable to the appellant, the court martial did not take into consideration. Counsel also detested the court’s failure to evidence of (prosecution witnesses), PW 2, C.P.O staff Nurse Ibhagboseria; PW 3 Mrs. Mercy Oloko Odey; PW 4 S/L Hannah Omomo Asiboja and PW 5 Agnes Agbo. That the said witnesses were nurses on duty who did not only witness the management of the patient but also participated in doing so. He submitted that the totality of their evidence did monumental damage to the prosecutions case. Counsel further lamented that the General Court Martial never said anything regarding the evidence of any of the defence witnesses, especially DW1 and DW6. Furthermore and on the allegation of negligence, he submitted as uncharitable the accusation of the appellant of so many year professional standing and who had risen to the position of a consultant in his specialty. That even if the appellant was accused of departing from the normal, counsel argued, in medical practice ‘Deviation from normal practice is not necessarily evidence of negligence”. This was per Holland and David v. Moore Nautical College reported in the Times March 4 1950 where the view was expressed therein that a doctor is entitled to use his common sense and experience of judgment in the treatment of each particular case. That a slight departure from the book would not of itself establish negligence. Consequently that the prosecution had therefore failed to prove all the accusations alleged against he appellant. Learned counsel in support of the prosecutions burden in proving the accused guilt beyond reasonable doubt cite the case of Gami v. Nigeria Army (2001) 28 WRN 167 a Court of Appeal decision sitting in Lagos per Oguntade JCA (as he then was) at pages 178 – 179. That the appellant cannot, on the totality of the circumstance, be accused of an event that was entirely beyond him; not even of an error of judgment which if not of itself based on negligence is not sufficient. The learned counsel on the premise urged us to therefore allow the appeal.

In response to the appellant’s submission the learned respondent’s counsel restated the akin nature of a court martial to a jury trial and therefore not bound to adopt the procedure in regular courts by reviewing evidence in extenso and giving reasons for judgment. Cited in support was the case of Lt. Col. K.D. Ajia vs. Nigerian Army in an appeal No. CA/L/9m/98 judgment of this court on Thursday the 6th day of July, 2000 at p. 21. The same principle of law was followed also by this court in Lt. Col. M.F. Komonibo vs. The Nigerian Army appeal No. CA/L/114/2000 delivered on Monday the 10th day of December, 2001 at page 11.

That contrary to the submission by the appellant’s counsel, the GCM took extra care an pain to deliver a written judgment wherein it considered the evidence for both the prosecution and the defence.

The complaints of the said Issue squarely centered and questioned the judgment GCM and which extensive reproduction of same would give a vivid picture and appreciation of whether or not the appellant’s arguments and reasonings hold firm ground. In otherwords I would for this purpose reproduce pages 829 – 832 of the record of appeal on!

“EVIDENCE AND ANALYSIS OF FACTS BEFORE THE COURT

4. The evidence before this court did not highlight any gynecological problems when Mrs. Joy Bassey (the patient) was under the care of Surg Captain CT down (the accused officer). The expert witness for the prosecution, Professor Osita Frank Giwa-Osagie, said that the patient was a high risk patient (with two risk factors, but made no reference to “gynecological patient and we believe him. The court while agreeing with the Defence that the patient was not a gynecological patient however is clear in her mind that she is an obstetrician patient booked under the care of surgeon Capt CT Olowu for antenatal care of her pregnancy and for the delivery of her baby. It is also an accepted fact that she has a previous still birth and also caesarian section for failed induction of labour two-risk faction, making her a high risk patient.
5. From the totality of evidence before us, it can be safely deduced that the following minimum requirements are reasonably expected of a doctor who is called upon to see a patient. They are:

(a) Listen to and hear front the nurse and from the patient

(b) Examine the patient and elicit findings

(c) Make a written record of the findings in the patients case note.

(d) Make a written record of any instruction on the management of the patient.

(e) During any referral, to summaries clinical findings and state the tentative diagnosis.

6. Apart from and other than the accused own oral evidence that he examined the patient and recorded his findings in the patient’s case note, there is no evidence any where, oral or written, that he examined the patient or recorded any findings, all the times he came to see the patent.

The patient’s case note, the Nurse’s 24 hour report book, the Ward book, the Duty Nurse’s oral and written evidence and even the written evidence of the accused officer himself did not state anything about examination of the patient or clinical findings.

7. If the patients Case note got missing or tampered with, the nurses’ ward books is readily available to confirm whatever the doctor did. But there is no such confirmation in this case. Under examination by a member of the court, the accused confirmed that the nurses record down in their ward book, whatever a doctor does, says or writes, when the accused was asked, after reading relevant portions of the ward book, whether he had any comment about their written up, he never once said their entry was in complete or wrong or tampered with.
8. The accused officer is aware that pelvimetry (pelvic assessment), manual, x-ray, ultrasonic or computerized version, is necessary in obstetrics management. Hence he wanted to do it but stated Mrs. Joy Bassey failed to bring along the necessary gloves and cream.
9. The prosecutions expert witness emphasized the importance of pelvimetry either at 36 weeks or at the onset of labour. The Defence expert witness, Prof Ilesanmi from University College, Hospital, Ibadan stated that pelvimetry is one of the four Parameters used in managing labour and delivery. He however does not believe in manual pelvimetry but did not condemn other modes of pelvimetry.
10. It is very difficult to believe that a patient could be denied of a basic procedure like a pelvic assessment, all because there were no gloves, guaze and cream provided by the patient. When one duty nurse who testified was asked whether any list of requirement is given to patients during antenatal care, she said ”no” she said patients pay for and are allocated maternity packs. What the court expected to hear then is that the patient did not pay for the maternity pack and not that the patient did not come along with the requirements for pelvic assessment.
11. If and when a doctor cannot or is not willing to provide the basic antenatal care to a patient, the next best thing to do is to immediately refer the patient to another doctor who is ready and capable of providing the basic antenatal care to the patient. Minimum standard in antenatal care should be met.
12. The defence team on many instances emphasized the absence of the duty doctor to assist in any surgery, hence the referral. The court agrees with the defence on this. The former Director of Medical Services (DMS), Cdre Augusta Aina Ofili, emphasized the lack of facilities in Naval Medical Centres and in particular, naval Medical Centre, Mobil Road. The incumbent DMS also emphasized the lack of facilities and manpower in the said medical center, with these short comings and particularly on the first day the patient reported for delivery, is it good judgment to continue to manage a high-risk patient without performing a reasonable obstetric examination of the patient during labour? The court thinks it is not.
13. The patient had no pelvic assessment done at 36 weeks, had no assessment done during labour, was not examined by the doctor during labour, is a high risk patient, and there was no duty doctor to assist all along in any emergency operation, yet, regardless of these grave shortcomings, she was allowed to proceed in labour by the accused officer. This court believes, was bad judgment and it resulted in harrowing and agonizing consequences. If the accused officer had examined the patient during labour, perhaps patient would have been referred earlier. The patient was only referred after the uterus was ruptured with vaginal bleeding and loss of the baby.
14. It is unprofessional to manage a pregnant woman in labour whose pelvic has not been examined and assessed for the type delivery expected.

Without a pelvic assessment manual or otherwise, and without clearly writing down in the case note the type of management necessary during labour of a high-risk patient the accused was criminally negligent in his management. Not having a stand by arrangement to handle an emergency, it was negligent and unprofessional of the accused to keep the patient for more than an 18 hours. The action reasonably expected of the accused considering this peculiar scenario of omission and shortcomings was to have immediately referred this high-risk patient to a competent hospital at first instance. The management provided by the accrued fall far short of the standard expected of specialist obstetrician/gynecologist.”

The appellant at the lower court was accused of performing his duties negligently by mismanaging the labour of Mrs. Joy Bassey who registered at Naval Medical Centre, Mobil road, Apapa, Lagos under the appellant for an antenatal care. She was a woman with two previous history of prolonged labour; while the first resulted in still-birth, the second resulted in a surgical intervention; in otherwords through an operation by one Dr. Nwakor at military hospital. The third pregnancy was the one resulting into the appeal at hand. The said facts were all borne out on the evidence of PW1 the testimony of Mrs. Joy Bassey herself at page 65 – 66 of the record of appeal.

It is also evident that both the prosecution expert witness and also that of the defence expert witness Prof. Giwa Osagie and Prof. Ilesanmi as DW1 and DW respectively vividly testified to the effect that Mrs. Joy Bassey as a high risk patient and therefore required a more careful and skilful management. Pages 206 and 603 of the record of appeal are under reference.

There is also the evidence by Mrs. Joy Bassey that she reported at 36 weeks for Pelvic assessment which all experts both prosecution and defence witnesses and even the appellant as DW 3 at p. 528 of the record agree as a sine qua non to the determination of what kind of delivery a pregnant woman ought to be allowed to go through. The said examination was not carried out by the appellant who gave his reasons due to the patient’s failure to provide the required necessary terms. The appellant at page 528 for instance said, as a consequence which “there is nothing any doctor can do for her.”

On the same question of refusal to conduct pelvic assessment by the appellant on Mrs. Joy Bassey, in answer to a question by the defence, the Defence expert DW4 had this to say at p.614:-

“DW4: we do that in UCH too, patients used to buy gloves and other things, If she fail to show up it does no mean that when she comes up at week 36 I will reject her, no. All I have to do is to ask the nurse if they can get gloves else here because I want to do that examination at this point in time.”

DW4 at page 615 also emphasized the significance of both the examination and the documentation thereof.

PW 1 Mrs. Joy Bassey further in her testimony at p. 74 reiterated that the appellant neither examined her nor did he come near the bed she was lying on. At page 132 of the record, PW 2 in her evidence testified that the appellant came in at about 8.00 o’clock and walked towards the labour ward. The witness at page 134 further said

“………The sister told CMS that patient is bleeding and she has reduced fatal heart rate. The CMC ordered on the phone that we should set I.V. 5% dextro saline.”

At page 135 the same witness continued;-

“…..When CMC came now this was about 11 a.m. to come and see the patient……………He asked us what happened and we narrated to him and he went towards the patient and he later wrote referral letter to Military Hospita1.”

PW 4 at page 168 also confirmed that she saw the appellant (CMC) who said verbally “she was bleeding says she could make it we should continue with the management but if there is any deviation we should contact duty medical officer doctor Awukam and should inform him.”

P.W. 7 at page 737 and in response to a question by the court member, read out the nature of the referral letter by the appellant of the patient to the Military Hospital which content was as follows:-

“the theatre facility is not available for immediate surgery hence she is being referred for your further management. Thank you for your co-operation.”

The witness testified that the procedure adopted by the referring doctor was very unusual in the absence of any diagnosis made on the patient.

From all the entire evidence before the trial court, there was no indication on the record of anybody having seen the appellant examined Mrs. Joy Bassey. As rightly submitted by the learned respondent’s counsel, none of the exhibits 2, 3 and 5, the antenatal case note, ward report and the 24 hours report respectively did show anything done by the appellant on Mrs. Joy Bassey by way of an examination or documented findings.

It is a matter of common knowledge that the patient was a previous CS. Both prosecution and defence agreed per the experts evidence that she was a high risk patient and therefore needed pelvimetry (pelvic assessment) at 36 weeks which the appellant agreed was not done although he gave the reasons leading to his refusal to conduct. However and despite his reason, not withstanding, the appellant ought to have been on the guard in the latter management of the patient, especially with the fact of non assessment well within his knowledge.

The appellant as restated earlier was standing trial for negligent act committed at the Naval Centre Mobil Road Apapa Lagos. This did not extend to any act done at the Military hospital Yaba where the patient was eventually transferred to. It follows therefore that the evidence of DW6 and all other acts after the referrer and carried out at the Military Hospital were all of no relevance to the appellant’s charge.

It is also evident that nowhere on the record did it say that the appellant ever examined the patient; He appeared to have only relied on the patient’s condition as given him by the nurses.

In the case of Okike v. LPDC (2005) 10 M.J.S. C1 at 14 their Lordships of the apex court had this to say:-

“It is a cardinal principle of our law that where evidence is given and some allegations are made against someone who has the opportunity of repudiating it but he chooses to ignore it or treat same with levity then the court or tribunal or which everybody is seized of the proceedings would act on what it has in its possession.”

The appellant had the witnesses at the lower court who could have contradicted the evidence of the patient PW1 that he, (the appellant), never examined her at the point in question. This the defence never saw it necessary but rather chooses to only rely on the evidence of refuttal by the appellant himself. The nurses on duty and documented evidence to the effect would have served the exoneration. The remarkable contradiction between the appellant’s written statement (Exhibit 16) and oral testimony in court therefore amount to non legal effect. In other words while in the former the appellant admitted seeing the patient “at 2000 hrs and reviewed all the nurses findings”, the latter oral testimony at pages 535 – 536 of the record related that “he did extensive examination of the patient and documented his findings. The two are very much contradictory.

The Supreme Court had at great length dealt with the rules of inconsistent statements which purpose is to “impugn the credibility of who has given two inconsistent versions of the story. Consequently neither of the two versions of the story is worthy of any credit and therefore incapable of establishing the truth.” See case of Asanya v. The State (1991) 3 LRCN 720 at 725. Furthermore and if the case of Ikemson v. The State (1998) 1 ACLR 80 at 85, the apex court held the rejection of both statement of the accused made before the trial and the oral testimony at the trial as unreliable on inconsistency. Same principle was also applied in R v. Ukpon (1961) 1 All NLR 25.

From the synopsis of the evidence before the General Court Martial, in the light of the findings and judgments arrived at therefore, same as rightly argued by the respondent’s counsel cannot be wrongful. The judgment without any iota of hesitation was aptly supported by the overwhelming evidence adduced before it.

The Osborn’s concise Law Dictionary (7th Edition) by Roger Bird, defined the word negligence at page 229 as follows:-

“Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do.” This is per Alderson B. in Blyth v. Birmingham Water works Co. (1856) LT 11 Ex. 781 at 784).

Bowen LJ in Thomas v. Guartermaine (1887) 18 Q B D. 685 at 694 also said “Negligence is simply neglect of some care which we are bound to exercise towards somebody.”

In the case of Gaji v. The Nigerian Army cited by both learned counsel, supra, Oguntade JCA, (as he then was), held and said:-

“It is my firm conviction that an accused cannot be found guilty of an offence under section 62(b) of Decree No. 105 above for general acts smacking of incompetence or lack of administrative ability. To be guilty of the offence it must be shown that the accused concerned has shown a reckless indifference in relation to a specific duty upon him.”

It is not in question that the appellant had a specific duty to perform. This was confirmed by his counsel at page 23 of the brief wherein he said:-

“it is common ground by the parties that the appellant who was a consultant with the Naval Medical Centre Olodi, Apapa, Lagos certainly had a duty to perform to the patient.”

On the totality of the evidence at the lower court, same I hold supports the findings to the effect that the appellant performed his duties negligently. In the case of The State v. Aibangbee & Anr. (1988) 7 S.C.N.J. 128 their Lordships of the apex court held and said:

“It is trite law that if on the totality of evidence there is doubt, genuine doubt, the benefit of that doubt, is given to the accused person. But no court is authorized to manufacture doubt for an acquittal.”

In the case of Gami v. The Nigerian Army relied upon therefore by the appellants counsel supra, it was held at pages 175 – 176 that:-

“There is virtually nothing by way of guide or sign post that enables the appellate court to know what evidence was relied upon in arriving at the decision to convict…………. ”

While the appellate court was left to grope in darkness as to what the evidence was in Gami’s case, same cannot be said of the case at hand which is remarkably distinguishable therefrom.

The expertise and experience of the appellant as a practitioner of so many years standing from all deductions and indications of the whole scenario, leaves very much to be desired. The appellant certainly did not apply his knowledge of the patients situational history to salvage the unfortunate event that took place. He was very much in the position to have been more vigilant and cautious. This front all indications he had failed to do.

The General Court Martial in my humble opinion took a very apt path-view of the situation, after an objective due evaluation of the entire evidence before it. They could not have done more. Their judgment is thorough and highly commendable as rightly submitted, by the learned respondent’s counsel. Same in my humble opinion cannot be faulted. On the authority of the case of Gaji v. Paye (2003) 12 M.J.S.C. 76, with the findings of the GCM being of fact, same cannot be disturbed by this court. The said 3rd issue is also resolved against the appellant. The same therefore and the grounds of appeal upon which it is predicated all fail and are dismissed.

On the totality of the appeal before us with all the issues and the grounds of appeal upon which predicated having failed, the entire appeal is hereby dismissed while the judgment of the General

Court Martial delivered on the 21st day of February, 2002 is upheld. Each party is to bear the costs of its appeal.

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Other Citations: (2006)LCN/2085(CA)