Surgeon Captain C. T. Olowu V. The Nigerian Navy (2011)

LAWGLOBAL HUB Lead Judgment Report

M.S. MUNTAKA-COOMASSIE, J.S.C.

By a convening order dated 17th September, 2001, the Flag Officer Commanding (FOC) Western Naval Command convened a General Court Martial (GCM) to try the appellant on one count charge as follows:-

“a statement of offence

Failure to perform military duties contrary to Section 62(b) of the Armed Forces Decree 105 of 1993 (as amended).

PARTICULARS

That you surgeon Capt. C.T. Olowu NN/6613 on or about 2nd April 1999 at Naval Medical Centre, Mobil road, Lagos did perform your duty negligently as consultant obstetrician/gynecologist which resulted in the mismanagement of Mrs Joy Bassey’s labour a known (High risk) highly as gynecological patient”.

The facts of this case are straight forward and short. The appellant, a consultant obstetrician and gynecologist was deployed to the Nigerian Navy Medical Centre road Apapa as part of his military assignment as a military medical officer and was there as the commander of the medical centre. One of his patients, one Mrs. Joy Bassey was an obstetric patient for antenatal care of the pregnancy. Previously the patient had still birth and caesarean section for failed induction of labour, thus making her a high risk patient.

On the 2nd day of April, 1999 the said patient went into labour and she was rushed to the medical centre where she was previously registered. She was received by the Nurses on duty while the medical officer was absent on the particular date. The nurses conducted preliminary test on the patient and in the course of conducting preliminary test there appeared meconioll in stains which were signs indicating complication and the appellant was immediately notified of the observation on the patient. The appellant arrived the medical centre at about 2000hrs and asked the nurses questions without personally examining the patient and thereafter left. The appellant did not come back to the medical centre until the next day at which time the patient’s condition had deteriorated despite the fact that the appellant was aware of the medical history of the patient. At 11.00 am on the second day, i.e 3/4/1999 when the appellant came back he merely wrote a letter of referral for the patient to be taken to the Military Hospital Yaba, the situation had already become bad as she was already bleeding profusely from her vagina. She was later operated upon where it was discovered that the baby died about 24hours ago and already outside the womb so also the placenta, her uterus had ruptured and finally that the said patient would not be able to bear children again as a result of the extensive damage done to her womb which was then removed- as a result of the prolonged labour.

The Appellant was subsequently arraigned for negligence. At the trial the Appellant pleaded not guilty. In an attempt to prove and establish their case, the prosecution called eight (8) witnesses, including an expert witness. While the Appellant called six (6) witnesses including two experts.

At the close of the hearing, both parties submitted written addresses. On the 21st day of February 2002, the G.C.M delivered its judgment in which it found the appellant guilty and sentenced him to be reduced from the rank of Navy Captain to Commander of four years seniority from the date of confirmation of sentence. The sentence was confirmed by the Navy Board on the 16th day of November, 2002.

Dissatisfied with the judgment of G.C.M, the Appellant unsuccessfully appealed to the Court of Appeal Lagos Division hereinafter called the lower court which on the 9th Day of November , 2006 dismissed the appeal of the appellant and affirmed the judgment of the G.C.M.

In this court both parties filed and exchanged their respective briefs of argument. The Appellant in his brief of argument, which was deemed filed on 4/11/09 formulated four (4) issues for determination as follows:-

1. Whether the Court of Appeal was right when it held that the General Court Martial has jurisdiction to try the appellant on the one count charge which bothers on alleged professional misconduct;
2. Whether the Court of Appeal rightly held that the appellant’s constitutional right to fair hearing was not violated by the General Court Martial;
3. “Whether having regard to the evidence before the court martial, the Court of Appeal was right when it affirmed the conviction of the Appellant based on alleged negligence in the performance of his duty as a Medical Practitioner.
4. Whether the Court of Appeal rightly affirmed the decision of the Court-martial’s in spite of the court martial failure to properly evaluate before it which lead (sic) to a miscarriage of justice”.

The Respondent in his brief of argument adopted the issues formulated by the Appellant as its own.

Learned counsel to the Appellant at the hearing adopted his brief of argument and urged us to allow the appeal. On his issue 1, it was the submission of the learned counsel that the Appellant being a Medical Practitioner could only be tried for Professional Misconduct, Disciplinary Committee and the Tribunal established by Section 15 of the Medical and Dental Practitioners Act No 23 of 1998. It was the counsel submissions that the charge against the Appellant was based on an alleged Professional Misconduct as a Medical Practitioner. Professional Misconduct does not and cannot constitute any criminal offence known to the Armed Forces Act or any other law. He therefore submitted that the G.C.M has no jurisdiction to try the Appellant on the alleged professional Misconduct. He, for that reason, submitted that failure to perform military duties therefore will be failure to perform duties pertaining to war or concerning war. It is the counsel’s submission that no person can be tried for a criminal offence unless such offence and, penalty therefore is prescribed in a written law, reliance is being placed on the case of Aoko V. Fagbemi (1961) All NLR 406. He also submitted that the charge was ambiguous in that it was not clear whether the Appellant was charged for failing to perform military vvf infection or loss of foetus. Hence the Appellant ought to have been discharged, he cites the case of ISIAKA VS. THE STATE (1986) NWLR (Pt 17) 156.