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.