Surgeon Captain C. T. Olowo V. The Nigeria Navy (2006)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an appeal brought by the appellant against the confirmation by the Navy Board, of the conviction and sentence of a General Court martial herein referred to as “GCM” delivered on 21st February, 2002.

The appellant was until his said trial and conviction the Captain Medical Centre (CMC) of the Naval Medical Centre, Mobil Road, Apapa, Lagos. He as in other words a consultant obstetrician and Gynaecologist and former Commander of the Nigerian Navy at the said centre.

By a convening order dated 17th September, 2001, the Flag Officer Commanding (FOC) Western Naval Command convened the said GCM to try the appellant on a one count charge of failure to perform military duties contrary to section 62 (b) of the Armed Forces Decree 105 of 1993 (as a ended).

At the appellant’s arraignment but before the charge could be read to him, he raised a preliminary objection challenging the jurisdiction of the court martial to entertain the charge against him and which was overruled. Consequent upon reading the charge, the accused/appellant pleaded not guilty thereto.

In proof of the case against the appellant, the prosecution called eight witnesses (including one expert) and also tendered exhibits. At the close of the prosecution’s case, the defence put up a no case submission which was consequently overruled by the court martial in its considered ruling. The appellant in his defence therefore called six witnesses (including two experts) and also tendered exhibits. At the close the case for both parties, their respective counsel submitted written addresses, which were read and amplified upon in open court. The Judge Advocate thereafter made his summing up and advise the court following which the GCM on the 21st February 2002 delivered its judgment wherein it found the appellant guilty and sentenced him to be reduced from the rank of Captain to Commander of four years seniority from the date of confirmation of sentence.

The sentence was duly confirmed by the Navy Board on 16th December 2002. This appeal is therefore the result of the appellant’s dissatisfaction with the decision. By a motion dated 14th February, 2003 for leave to appeal against the judgment, this court vide its order dated 19th June, 2003 granted leave wherein the appellant on the 24th filed his Notice of Appeal dated 2nd day of June, 2003. The said notice contained six grounds of appeal. The appellant was also granted a departure order by this court from the rules on the 4th March 2004.

Both parties filed and exchanged their briefs of arguments. While that of the appellant was undated but filed on the 3rd June, 2004 pursuant to a deeming order obtained 17th February, 2005, the respondent’s brief was however dated 13th and filed on the 14th March, 2006.

On the 21st September, 2006 the learned counsel Messrs A.M. Lawal and J.A. Asemota for the appellant and respondent adopted and relied on their respective briefs of arguments. From the six grounds of appeal filed b the appellant, four issues were distilled for determination as follows:-

1. Whether the General court martial was right to assume jurisdiction on the count charge against the appellant for a matter that was no more than a professional misconduct if any.
2. Whether the trial of the appellant violates his constitutionally guaranteed right to fair hearing under section 36 of the 1999 constitution of the Federal Republic of Nigeria.
3. Whether having regard to the totality of the evidence adduced and the entire circumstances of this case the court martial was right in holding that the appellant was guilty of negligence
4. Whether the failure of the General Court martial to properly evaluate the evidence before it did not occasion a miscarriage of Justice.

With the issues arising from grounds of appeal nos 1, 4, 3 and 2 & 6 respectively, ground no 5 is there ore abandoned and accordingly struck out.

The respondent in response to the appellant’s brief adopted the same four issues as formulated by the appellant verbatim.

The learned appellant’s counsel in orders of priority argued the issues in an ascending order of 4, 3, 2 and 1. With issue no. 1 touching on the question of jurisdiction, it would be appropriate in my view that same should be first determined, especially where the absence of jurisdiction would result in all proceedings of no legal effect whatsoever. I would therefore consider the issues in a descending and not ascending order as submitted by the learned appellant’s counsel. In other words issue no 1 would first be determined followed by issue no 2 and issue no 3 would be taken together with no 4 since they are very much interrelated.

The appellant was tried and convicted by the General court martial on a one count charge under section 62(B) of the Armed Forces Decree 105 of 1993 as mended, and the charge which read as follows:-

“That you surgeon Captain C.T Olowu (NN/0613) on or at about 2nd April, 1999 at Naval Medical Centre, Mobil Road Apapa, Lagos, did perform your duties negligently as consultant Obstetrician and Gynaecologist which resulted in the mismanagement of Mrs. Joy Bassey’s labour – a known high-risk gynecological patient.”