Rex V. John Oni Akerele (1941)
LawGlobal Hub Judgment Report – West African Court of Appeal
Medical Practitioner—Injections—Convicted of manslaughter and reckless or negligent acts contra. sections 325 and 345 (1) ( f) of the Criminal Code—Incorrect form of committal for trial vide section 23 of the Coroners Ordinance—Technicality only—Evidence of deaths of other persons properly admitted as ad-alined to establish an essential point for prosecution and not as evidence of bad character-A-Degree of negligence—Similarity between English and Nigerian law—Proof of ” overdose ” and criminal negligence.
Held : Appeal against conviction dismissed.
There is no need to set out the facts.
Case referred to
R. v. Bateman (1925), 19 C.A.R. 8.
C. N. S. Pollard for Crown.
Sir William Geary (A.. Alakija, Wells-Palmer and E. A.
Akerele with him) for Appellant.
•
The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
The appellant, who is a qualified and licensed medical practitioner was charged upon information before Waddington, Assistant Judge, in the nigh Court of the Enugu-Onitsha Judicial Division upon the following three counts:—
” STAMM:11NT OF OFFINCR–111T COUNT
” Manslaughter, contrary to section 325 of the Criminal Cods.
” PARTICULARS OF OFFENCE
” John Oni Akerele during the month of May, 1940, in the Province ” of Owerri, unlawfully killed Kalu lbe.
” STATSMENT OF 011.15NCE-2ND COUNT
” Reckless and negligent acts, contrary to section 343 (1) (e) of the ” Criminal Code.
” John Oni Akerele during the month of May, 1940, in the Province John Oni ” of Owerri, in a manner so rash or negligent as to endanger human Ahem.. ” life, or to be likely to cause harm, gave medical or annioal treatment –
” to Lain the whom he had undertaken to treat.Kinriani
Petrides
and
” STATRIIRST OF OFFRFICR–321) COUNT
Graham Pod ” Reckless or negligent acts, contrary to section 343 (1) (j) of the C.D.
‘ Criminal Code.
” PARTICULARS 07 OFFENCE
” John Oni Akerele during the month of May, 1940, in the Province ” of Owerri in a manner so rash or negligent aa to endanger human life ” or to be likely to cause harm dispensed and administered medicine or ” poisonous or dangerous matter to Kalu The.”
He was convicted on the first and third counts and acquitted on the second count. He was sentenced upon the first count to three years imprisonment with hard labour and upon the third count to a fine of £100 or twelve months imprisonment with hard labour the sentences to be concurrent.
The appellant has appealed to this Court on a variety of grounds, but actually there are only three questions of law which must be decided and the other arguments of substance addressed to this Court in the very able address of counsel on behalf of the appellant are directed to the facts.
Shortly the facts relied upon by the prosecution are that the appellant, in pursuance of his medical practice, was touring the airerri Province in May, 1940, and giving injections, of, inter alia, a drug known as Sobita, as a cure for yaws; that the use of this drug is one which requires the greatest care since an overdose of it causes Stomatitis followed by distressing symptoms in the mouth which may ultimately result in death especially if the patient is not properly treated; that at Asaga on the 6th May, 1940, he gave injections of this drug to a number of children including the boy Kalu Ibe mentioned in the particulars of the charges; that shortly afterwards Kalu Ibe and a number of the other children so injected developed stomatitis and all the other symptoms indicative of having been given an overdose of the drug; that .the boy Kalu Ibe died as a result of the dose of Sobita injected into him by the appellant; that nine of the other children injected at the same time and place and from the same bottle of medicine also died ; and the prosecution contends that these facts establish that the appellant injected into Kalu Ibe an overdose of Sobita, and thereby caused Kalu Ibe’s death; that the injection of that overdose was done with negligence on the part of the appellant, and with such a high degree of negligence as to amount to criminal negligence; and that therefore the appellant is guilty of the manslaughter of Kalu Ibe, and is also guilty on the same facts with the lesser offence charged in the third count.
The first point of law taken on behalf of the appellant is set out in ground one of the amended and further grounds of appeal in the following terms :—
” The learned Judge erred in law in rejecting the submission of ” counsel for the accused that the information was bad in law. The ” finding of the Coroner set out in Form 5 section 8 of the Coroner’s ” Ordinance and signed by the Coroner is as follows:—
” In the Court of the Coroner of Bende Division. An inquisition ” taken at Ohafia on the 12th, 13th, 14th, 15th and 16th days of ” November and the 9th, 10th, 11th and 12th days of December, 1940, ” R. F. A. Grey, Coroner, on the body of Kalu Ibe then and there lying ” dead who having to be enquired when, how, and by what mean the ” said deceased came to his death finds that the death of the said Kalu ” Ibe was caused at Church of Scotland Mission Hospital, Abiriba on ” the 24th day of May, 1940, by toxaemia following oral sepsis caused ” by an injection of Sodium-bismuth-tartrate administered to the ” deceased by Dr John Oni Akerele at Asaga on the sixth day of May, ” 1940. (Sgd.) R. F. A. Grey (Coroner).
” Information of Ogbogbo Uduma Okwerenkya and twenty-sever ” others touching the death of Kalu Ibe.
” Taken before me at Ohafia upon the days first above written. ” Sworn Interpreter (Sgd.) R. F. A. Grey (Coroner). And upon that ” finding the Coroner continued I commit the said Dr J. Oni Akerele ” for trial before the High Court at the next sitting to be holden at ” Ihnuahia, upon the charge that he did on or about the sixth day of ” May, 1940, at Asaga unlawfully kill the said Kalu Ibe. Given under ” my hand at Ohafia this twelfth day of December, 1940. (Sad.) R. F. A. ” Grey.”
Shortly the contention is that section 23 of the Coroner’s
Ordinance (Cap. 15), the first sentence of which reads •
” If the Coroner shall find any person guilty of murder
” or manslaughter or as accessory before the fact, and shall ” commit such person for trial, he shall issue his warrant in ” the prescribed form
makes it a condition precedent of committal by a coroner of a person on a charge of manslaughter that the coroner shall find that person guilty of manslaughter; that the coroner omitted to record that vital finding, and that therefore the committal was bad, the informatinn was bad and the conviction at the trial was bad.
But a perusal of the proceedings before the coroner shows that whilst he did not actually record a finding against the appellant of guilty of manslaughter, the appellant was actually before him charged with manslaughter, and he did actually commit the appellant for trial upon a charge of unlawful killing.
This being so we think that it would be carrying technicaliti,_-* to an absurd degree to uphold the appellant’s contention, and w= decide against it; even if we decided this point in appellant’s favour it is a case in which we should certainly hold that it has occasioned
no substantial miscarriage of justice and act accordingly under the proviso to section 10 0) of the West African Court of Appeal Ordinance, 1933 (No. 47 of 1933).
The second point- of law raised by the appellant is set out in the second ground of his amended and further grounds of appeal as follows :—
” The learned Judge was wrong in law in admitting evidence of the ” deaths of other Persons- for the reasons stated in his summing up ” as follows:—In this aim the evidence concerns other injections given ” at -the saute session, so to speak as that administered to Kalu lbc,— ” closely connected with it in. point of time, place and eircunistance,s. ” The evidence covers a course of conduct resulting in these various ” consequences of which the death of Kalu the was only one. In my ” view, tho evidence is admissible in proof that Kalu Ibe’s was not an ” isolated ease which might conceivably be duo to seine inadvertence, or ” to some idiosyncrikey in relation to bismuth in Kalu Ibe himself. It ” is also, in my view, evidence of the degree or extent of the negligence ” involved in accused’s conduct.”
As to this we think that the learned trial Judg6 was right to admit the evidence and right for the reasons he gives. The evidence of the illness and deaths of other persons was tendered not to prove the bad character of the appellant, nor to–prove–a-course of conduct or system, but to establish one of the essential points which. the prosecution had to establish. The first Point for the prosecutio.n to prove was that Kalu Ibe died as a result of the dose of Sobita injected by the appellant; having proved that, the prosecution then had .to prove that-that dose was an overdose. Now there were only two, possible ways to account for Kalu Ihe’s symptoms, either he had been given an overdose or he showed exceptional re-action to the drug. Whilst those two possibilities remained, it was not established that the dose was an overdose, the prosecution therefore tendered and was allowed to lead evidence to show that such a large proportion of the other children who were similarly injected by the appellant at the saute time and place had reactions similar to those of Kalu Ibe as to prove that his reaction couldonot be due to his own idiosyncracy, and therefore must be due to an overdose.
We think that the evidence was rightly admitted for this par ose, and this ground of appeal fails.
The third point of law which must be dealt wit is the question of whether there is any, and if so, what difference according to English law and Nigerian. law in the degree of negligence required in cases such se –thii–firgitablish criminal liability. The learned trial Judge looked for his law as to the degree of negligence required to the English law. and in doing so, erred, if at all (and we do not think that he did), on the right side, for it could not possibly lie argued that a greater degree of negligence is required according to Nigerian law, though it might be argued and was argued
(incorreettlrive -think) by the learned Acting Solicitor-General who appeared on behalf of the Crown that a lesser degree will suffice. Section 303 of the Criminal Code reads as follows:—
” It is the duty of every person who, except iu a case of ” necessity, undertakes to administer surgical or medical ” treatment to any other person, or to do any other lawful act
which is or may be dangerous to human .life or health, to ” have reasonable skill and to use reasonable care in doing ” such act; and he is held to have caused any consequences ” which result to the life or health of any person by reason of ” any omission to observe or perform that duty.”
The learned Solicitor-General submitted that the effect of that section in the eases to which it applies is that a man who fails to use reasonable care whereby death results is guilty of manslaughter. In other words the degree of negligence required in these cases in Nigeria is less than in England. In England-there must be ” gross negligence “, in Nigeria only ” lack of reasonable care “. We think this argument is fallacious for’the reason that section 303 does not say that a person failing to use reasonable care is guilty of manslaughter but merely that ” he is held to have caused any consequences which result to the life ” etc. In the present case if it is proved that the doctor failed to use reasonable care then lie is held to have caused the death of, or killed, Halu Ibe. We must then look to section 306 to see when a killing is unlawful,
That section reads
” It is unlawful to kill any person unless such killing is ” authorised or justified or excused by law.”
Such a killing as this is obviously not authorised or justified, but is it excused by law? It may be. One of the excuses which the law allows is accident even if caused by the accused’s negligence provided that the negligence does not amount to criminal negligence. And that brings us exactly back to the English law, if the negligence is not of such a high degree as to be criminal the accused is excused and not guilty of manslaughter, if the negligence is criminal i he accused is not excused, the killing is unlawful and he is guilty of manslaughter.
So much for the law involved, now as to the facts. The appellant quarrels with the two vital findings of fact recorded by the learned trial Judge. They are—
(1) ” It is dear beyond all doubt that this child was ” killed by an overdose of Sobita and that accused ” injected it.”
()) ” The conclusion is inescapable that accused acted with ” a degree of negligence that can only be described as ” criminal.” –
The Appeal is dismissed.