Dr. E.O.A. Denloye V Medical And Dental Practitioners Disciplinary Committee (1968)
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The appellant in this matter has complained against the decision of the Medical and Dental Practitioners Disciplinary Tribunal which has found him guilty on five counts of infamous conduct in a professional respect and has ordered the removal of his name from the Medical Register.
The first count charged the appellant practitioner with neglecting in a prolonged manner between 29th June, 1966 and 10th July, one Fatilatu Bisiriyu, a patient very seriously ill and for whose treatment the appellant practitioner was responsible under the Ministry of Health, Western Nigeria. The second count charged him with extortion of the sum of 30 guineas from Bisiriyu Odumeru the father of the said Falilatu Bisiriyu in order to induce him to examine and treat the said Falilatu. The third, fourth and fifth counts relate to different transactions: namely, the receipt of an amount of £2.2s.0d. in each of counts three and four and £2 in count five by the appellant, for false pre-employment certification of fitness.
Before dealing with the facts upon which the practitioner was called upon to answer before the Medical and Dental Practitioners Disciplinary Tribunal hereinafter referred to as the Tribunal, it is necessary to clear one or two procedural matters before the complaints came before the Tribunal. Under section 12 of the Medical and Dental Practitioners Act, 1963 hereinafter referred to as the Act, complaints against a medical practitioner as to his conduct should normally be first investigated by a body known as the Medical and Dental Practitioners Investigating Panel and it is the duty of this body to decide, after due investigations have been carried out, whether or not there is a prima facie case to go before the Tribunal. It would appear that in this matter the Investigating Panel first met at Ikenne on 7th August, 1967 and received evidence from one Tai Solarin and others. Although all members of the Panel and their counsel Mr. Whyte were present and conducted the investigations by calling witnesses, neither the practitioner whose conduct was called to question nor anyone on his behalf was invited to be present. It was not until the 11th October, 1967 that he was summoned to appear before the Investigating Panel. The evidence taken prior to this date was not made available to the practitioner or his counsel and when they were asked for by counsel, the Chairman of the Investigating Panel refused to produce it. He stated categorically that they were confidential and for the exclusive use of the Panel. These statements or evidence we observe from the material before us were clearly not made available to the practitioner or his counsel until the practitioner was before the Tribunal, and at some later stage during the trial.
It is correct that the Investigating Panel has wide powers as to how it obtains its information since the Act does not restrict it in any way, but we fail to see how a responsible body comprising of experienced medical practitioners, impelled by sense of justice, could set out from Lagos to Ikenne to investigate and receive evidence in a matter against a fellow practitioner without any warning to him that his presence might be required to hear the complaint against him. As if the whole complaint was shrouded in mystery this body not only went to Ikenne but also settled themselves down in the house of the complainant or the informer Mr. Tai Solarin, took his evidence and that of the witnesses he produced, after which they returned to Lagos. This is a procedure unknown to lawyers and it is most surprising that a member of the learned profession who should have guided the medical practitioners aright was himself a party to this procedure, a new departure from the accepted practice. Surely, Mr. Tai Solarin, if he were invited to Lagos by the Investigating Panel would not have refused to attend; and if it were of suchimportance to carry out the investigations at Ikenne, there are other places the Panel could meet other than Mr. Tai Solarins house.
But the matter did not rest there. On the 11th October, 1967, the Panel decided to continue the enquiry. This time Dr. Denloye was summoned to appear and he appeared with his counsel. Every effort was made by counsel to secure the production of evidence given in August but his request was turned down. The evidence was said to be of a confidential nature, nor were any of these witnesses recalled. Counsel asked repeatedly to be supplied with this evidence; his request was not granted. On the other hand his client Dr. Denloye was on that date severely cross-examined by members of the Panel on the undisclosed evidence they had taken earlier.
The Panel met again on 1st December, 1967, when the Panel graciously presented one of the witnesses, namely Mr. Tai Solarin, whose evidence had been taken earlier in August, to be cross-examined: The others were not recalled. In fact, it was not until he was before the Tribunal that Dr. Denloye and his counsel became aware of the nature of the evidence against him on counts 3, 4 and 5.
We do not intend to belabour this unsavoury part of the proceedings in this matter; suffice it to say that as far as the Tribunal was concerned it heard all the evidence against Dr. Denloye in accordance with the law and no criticism can be levelled against it on this point. Counsel for Dr. Denloye however arguing before us referred to the irregularities before the Panel and submitted that as the evidence of the witnesses on counts 3,4 and 5 before the Panel were not supplied to Dr. Denloye this vitiates these counts; and that it was against the principles of natural justice that a man charged before a tribunal should not know the nature or full particulars of the charges against him before the trial. The truth of the matter was that up till Dr. Denloye appeared before the Tribunal, all he knew was that it had been alleged that he issued certificates of fitness on various dates, to three different persons named, after collecting monies from each of them, and without examining any of them. Apart from a letter addressed to him (exhibit 8) stating this as briefly as we have stated above, the Chairman of the Panel on 11th October, 1967 told him this in the same words.
For the appellant it was submitted that the appellant was entitled to an adequate opportunity to know the case he has to meet and failure to supply him with a full statement of the facts or evidence upon which the Panel and the Tribunal relied was a denial of justice and a breach of the rules of natural justice.
We must point out for the benefit of the Tribunal concerned that like any other Tribunal of this nature, it is entitled to decide its own procedure and lay down its own rules for the conduct of enquiries regarding discipline-see R.v. Central Tribunal: Ex Parte Parton 32 T.L.R. 476. It is of the utmost importance that the enquiry be conducted in accordance with the principles of natural justice; in the case Russell v. Duke of Norfolk and others (1949) 1 All E.R. 109 at p. 118, Tucker L.J. (as he then was) said:-
‘The requirement of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth’.
Surely the appellant in the present case was entitled to know the nature of the evidence given against him on 7th August, 1967 and it was wrong to withhold this evidence from him. Referring to such right the Privy Council in the case of Kanda v. Government of the Federation of Malaya (1962) A.C. 322 at p. 337, said:-
‘If the right to be heard is to be a real right which is worth anything, it must carry with it right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them’.
Here, we must hold that the circumstances surrounding the taking of evidence on 7th August 1967 and the subsequent conduct of the Panel in regard to the evidence and unfortunately the withholding of the evidence by the Tribunal until such time as it was released constitute a denial of justice to the appellant.
The second point in the argument of counsel for the practitioner was that all the counts upon which the practitioner was called upon to defend himself before the Tribunal were offences chargeable under the Criminal Code and it was not competent for the Tribunal to have tried him unless there had been a prosecution of the offences. Counsel referred to section 22 (2) of the Constitution of Nigeria, which is as follows:-
‘(2) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court’.
As we however intended to decide this matter on other grounds we see no useful purpose in considering further the effect of section 22 of the Constitution.
Regarding count 1 of the charge counsel argued that the Area Of Law is covered by section 2896 (1) (e) Criminal Code of the Western Region whilst the Area Of Law of counts 2,3,4 and 5 are covered by sections 82 and 89 of the Criminal Code.
We have considered these arguments and we cannot agree with counsel that the first count bears any resemblance to a criminal offence of negligent act causing harm contra section 286 (1) (e) of the Criminal Code as suggested.
We are however satisfied that the substance of the facts in each of counts 2, 3,4 and 5 is covered by various sections of the Criminal Code and the charges could have been laid under the Code. Under the English Medical Act, 1956 charges of this nature which are covered by the criminal law are not dealt with under the Act in the first instance but are left to the courts. After convictions have been obtained in the courts disciplinary actions would follow. We have no doubt in our mi
Other Citation: (1968) LCN/1578(SC)