Dr. Jeremiah Abalaka V. Minister Of Health & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

I. T. MUHAMMAD, J.C.A. (Delivering the Leading Judgment)

In a motion on notice dated 5th day of July, 2000, and filed at the Federal High Court, Abuja (lower court) on 7th July, 2000, the appellant herein, as applicant, prayed for the following reliefs –

“1. A declaration that the respondents are under the complete control and authority of the Minister of Health and that they are bound to carry out any directive he gives them.

2. A declaration that the Minister of Health by his public utterances and actions is in open hostility to the efforts of the applicant and his discovery or effect preventive and curative vaccines against HIV infection.
3. A declaration that such open hostility and implacable opposition of the Minister to the applicant and his discoveries have impugned the independence and impartiality of all organs and public offices and persons under his control to carry out any judicial or quasi-judicial duties.
4. A declaration that the 2nd & 3rd respondents’ independence and impartiality to carry out any judicial or quasi-judicial proceedings against the applicant is compromised by the powers of the Minister to appoint their members and give them directions which they must obey and by virtue of their membership of the Nigerian Medical Association.
5. A declaration that it will be unconstitutional and therefore null and void for the 2nd respondent to accuse the applicant, set up the 3rd respondent to investigate him and also set up a tribunal of its members to try the applicant.
6. A declaration that it is unconstitutional for the 2nd respondent to set up tribunal to try the applicant for an action he did not know was an offence at the time of its occurrence.
7. A declaration that it is ultra-vires for the 2nd respondent to investigate or try the applicant for announcing the discovery of vaccines against HIV infection.
8. An order of mandatory injunction restraining the respondents, their officers, agents, servants and privies from investigating the appllicant or setting up a tribunal to try him.
9. Such further or other orders as the Honourable Court may deem fit to make in the circumstances.”

Written addresses were filed by the respective parties to support their submissions on the motion. After considering the affidavit evidence adduced by the respective parties and their various written submissions, the learned trial Judge found the motion to be unmeritorious and dismissed it.

It is against the dismissal order that the appellant filed his appeal before this court. Five original grounds of appeal were initially filed contained in the notice of appeal. On the 29th of January, 2004, this court granted leave to the appellant to amend his original notice and grounds of appeal. The amended notice of appeal now contains 7 grounds of appeal.

Parties to this appeal with the exception of the 1st respondent, filed and exchanged briefs of arguments. Learned counsel for the appellant formulated the following issues for determination; viz:

“1. Whether the lower court came to the right decision to dismiss the appellant’s application when it ignored the bulk of the affidavit evidence before it.

2. Whether the lower court did not err when it failed to hold as unconstitutional the 3rd respondent’s clear attempt to be the accuser, the prosecutor and Judge in its own case.
3. Whether the lower court was right when it held that the 2nd and 3rd respondents were statutory bodies carrying out statutory functions when by their own admission they were not constituted according to law.
4. Whether the lower court was not completely in error when it held that the appellant’s claims are outside the provisions of Chapter IV of the 1999 Constitution.
5. Whether the lower court was not in error when it subsumed the issues raised by the appellant under the issues raised by the 1st respondent and completely failed to consider the bulk of the appellant’s case.
6. Whether the lower court was not in error when it failed to hold that the bias of the 3rd respondent against the appellant vitiates any claim it has to impartiality in the trial of the appellant.
7. Whether the judgment of the lower court was not tainted by the bias of the learned trial Judge against the appellant and thereby occasioned a miscarriage of justice.”

Learned counsel for the 2nd and 3rd respondents formulated 5 Issues –

1. Whether the learned trial Judge considered the entire case, including affidavit evidence by the parties and counsel’s submissions, before arriving at his conclusion that the applicant’s case is unmeritorious and lacks merit? (Grounds 1 and 5).
2. Whether from the totality of the materials placed before the lower court, it could be said that the 3rd respondent breached the principles of fair hearing as enshrined in the Nigerian Constitution and the rules of natural justice when it invited the applicant for investigation (Grounds 2 & 6).
3. Whether the materials placed before the lower court justified the assertion of the appellant that the 2nd and 3rd respondents were not properly constituted to perform their statutory functions in relation to the appellant (Ground 3).
4. Whether the learned trial Judge was right in his conclusion that all the reliefs claimed by the appellant as applicant showed that they were outside the provisions of Chapter IV of the 1999 Constitution (Ground 4).
5. Whether the learned trial Judge exhibited bias against the appellant as applicant in the lower court in his consideration of the case (Ground 7).”

Before I consider the submissions of the respective learned counsel for the parties, it is pertinent to state the salient facts giving rise to this appeal. The appellant had been invited by a letter dated 22nd May, 2000, signed by the secretary to the 3rd respondent, to appear before the 3rd respondent’s panel sitting at Abuja on Monday, 26th June, 2000.

Upon receipt of the aforesaid letter of invitation, the appellant applied to the High Court of the Federal Capital Territory for leave to enforce his fundamental rights. That court granted him ex parte an order of interim injunction restraining the respondents from carrying out the proposed investigation. An objection was taken by the respondents to the jurisdiction of the FCT High Court to entertain the matter. That court upheld the objection, and the suit at the FCT High Court was accordingly struck out on 3rd July, 2000.

Following the striking out of the suit at the FCT High Court and the consequential discharge of the earlier order of interim injunction, the 3rd respondent once again by letter dated 14th July, 2000 invited the appellant to appear before it on Monday 31st July, 2000, in respect of the proposed investigation. To this letter was attached a letter dated February 17, 2000 addressed to the 2nd respondent by one Dr. Seyi Roberts, Consultant physician and Neurologist, complaining about the professional conduct of the applicant concerning his alleged discovery.

Following the said invitation, the appellant applied to the Court of Appeal for an order to restrain the 3rd respondent from carrying out its investigation. With the consent of all the parties, the Court of Appeal on 21st of September, 2000 granted an order restraining the respondents from conducting the investigation of appellant in any way whatsoever, pending the determination of the substantive motion on notice now pending before the lower court. The Court of Appeal further directed that the lower court should dispose of the substantive motion on notice as expeditiously as possible.

There had been series of publications in the news media concerning the alleged therapeutic breakthrough by the appellant for the cure of HIV-AIDS. The 3rd respondent in its letter drew the attention of the applicant to rules 32 and 33 of the Rules of Professional Conduct for Medical and Dental Practitioners in Nigeria which deal respectively with self advertisement or procurement of advertisement and medical publication of pending treatment and new discoveries.

The appellant alleged that the 1st respondent had hitherto been hostile to him and his alleged discovery and that the invitation that he should appear before the 3rd respondent must have been a consequence of the 1st respondent’s hostility. He also alleged that the 2nd and 3rd respondents are under the control and supervision of the 1st respondent and that as all the respondents are likely to be biased against him, he would have no chance of fair hearing before the 3rd respondent. He in fact alleged that the 2nd and 3rd respondents are under the directives of the 1st respondent to remove his name from the Medical Register at all costs.’