JOHN ONI AKERELE Vs. KING

JUDGEMENT

(1.) The appellant in this case is a duly qualified medical practitioner who carried on practice in Nigeria. On 7th March 1941 he was charged before the Assistant Judge at Umudhia Sessions of the High Court of the Enugu- Onitsha Division in the Protectorate of Nigeria on three charges : (i) Manslaughter, contrary to S. 325 of the Criminal Code, in killing one Kalu Ibe in May 1940. (ii) Reckless and negligent acts contrary to S. 343 (1) (e) of the said Code in giving medical treatment to the said Kalu in a manner so rash or negligent as to endanger human life or to be likely to cause harm (iii) Reckless and negligent acts contrary to S. 343 (1) (f) of the said Code in dispensing or administering medicine or poisonous or dangerous matter to the said Kalu.

(2.) The learned Assistant Judge who tried the case without a jury found the appellant not guilty on the second count but guilty on the first and third counts, sentenced him on the first charge to three years' imprisonment with hard labour and on the third to a fine of ?100 or 12 months imprisonment with hard labour to run concurrently with the punishment awarded on the other charge, and refused bail pending an appeal. On appeal, the West African Court of Appeal quashed the sentence on the third charge, affirmed the conviction on the first charge, but varied the sentence to a fine of ?500 and, in default of payment, to imprisonment with hard labour for 12 months. The appellants' case states that as a result of this conviction his name was struck off the local medical register by the Board or Examiners for Nigeria. The fine was paid but the appellant petitioned His Majesty in Council for special leave to appeal from the conviction and sentence of the Court of Appeal and on 27 November 1941, his petition was granted by His Majesty in Council. Pursuant to this leave their Lordships heard the appeal on 28 and 29 October last. At that hearing the Attorney-General on behalf of the Crown, whilst maintaining that it was open to him to support the conviction on the third charge on the ground that the sentence alone had been quashed, admitted that if the conviction for manslaughter should not be upheld, the conviction for negligent dispensing or administering medicine could not be supported. It accordingly becomes unnecessary for their Lordships to consider either the propriety of recording a conviction on the two counts or whether the evidence would support a conviction on the third count. The sole question is whether sufficient grounds were shown to persuade their Lordships that the case was one in which it would be proper for the Board in accordance with the principles upon which it acts, to advise His Majesty to grant the petition of appeal against the decision of the West African Court of Appeal upholding the conviction for manslaughter recorded by the learned Assistant Judge.

(3.) The facts giving rise to the charge may be briefly stated. The appellant in the course of his medical practice was touring the Owerri Province in May 1940 and the inhabitants of the districts of Asaga and Akanu were notified that they could be treated by him on 6 and 7 of that month. According to a list kept by the appellant 78 persons were treated at Asaga of whom 57 were children: 44 of these of whom 36 were children were dealt with on 6 May and 34 of whom 21 were children on the 7th. On the latter day the appellant proceeded to Akanu where 61 persons were treated of whom 33 were children and the remainder adults. With a few exceptions the patients appear to have been suffering from an endemic disease known as yaws which attacks both adults and children causing lesions and ulcerations on all parts of the body and in particular on the lower limbs and feet. Two methods of inoculative treatment for this disease are now well-recognised; the injection (i) of N.A.B., an arsenical preparation and (ii) of Sobita, which consists of sodium bismuth tartrate as given in the British Pharmacopoea, and is a trade preparation supplied to the doctor by a drug company in the form of a powder. It is now common ground that the, proper dose for an adult is three grains and for a child one. The appellant was accustomed to use the second specific and on his visit to Asaga and Akanu used it in the case of nearly all his patients though apparently not in every one. Following his treatment ten children died and there seem to have been some other cases of sequent illness, but the history of the latter was only lightly developed. All the ten children who died came from Asaga and so far as their Lordships are able to ascertain from the evidence five were inoculated on 6 and 5 on 7 May. No illness was reported from Akanu. The charge relates to one of these children, viz., Kalu Ibe. At the trial, besides the testimony of his mother and half-brother, evidence as to his symptoms was given by Dr. Ibiam, a qualified medical practitioner, who had been called in to treat him but not until ten days after the inoculation. In corroboration of this evidence, the deposition was put in of Miss Margaret U. B. Reid, a District Mission worker of the Church of Scotland at Asaga, who had seen this boy a day earlier. From this evidence it was apparent that he was suffering from stomatitis induced by bismuth poisoning. There was no doubt and indeed no dispute but that this poisoning resulted from the injection, and both Dr. Ibiam and a Dr. Henry, who was also called for the Crown, inferred that the subsequent death was caused by an overdose. The defence on the other hand maintained that; Kalu Ibe was peculiarly susceptible to the effect of bismuth and therefore unexpectedly succumbed to a dose which would have been harmless in the case of a normal child, and that in any case the negligence (if any) did not amount to criminal negligence.