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, IN THE COURT OF APPEAL
~ ABUJA JUDICIAL DIVISION
• HOLDEN AT ABUJA

/
I. ON MONDAY THE 13TH DAY OJ lUNE 2005 \
BEFORE THEIR LORDSHIPS

IBRAHIM TANKO MUHAMMAD JUSTICE, COURT OF APPEAL

ZAINAB ADAMU BULKACHUWA JUSTICE, COURT OF APPEAL
MARY PETER OOILI JUSnCE. COURT OF APPEAl.,

APPEAL NO. CAlAl12112003

BETWEEN:

DR, JEREMIAH ABALAKA APPELLANT

AND

,. MINISTER OF HEALTH
MEDICAL & DENTAL COUNCIL OF NIGERIA . ... RESPONDENTS
2.
3. MEDICAL AND DENTAL PRACTITIONERS
INVESTIGATING PANEl

JUDGMENT
(DELIVERED BY I. T. MUHAMMAD, leAl

In a Motion on Notice dated Sill day of July 2000, and filed at the Federal

High Court, Abuja (lower court) on 7th July, 2000, the appellant tlerein, as
applicant, prayed for the following reliefs-
"). A declaration that the Respondents are under the complete
control and autirarity of the Minister of Health and t!lat they

are bound to carry out any directive fre 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 vacanes iJgainst HIV Infection.

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• 3. A deelaration thal such open hostility and Implacab/e

opposition of the Minister to the applicant and Ills

dlscovenes have impugned the independence and

• impartiality of a/I organs and public offices and persons

under his control to amy out any judicia! or quasi-

judicia! duties.

4. A declaration that the ZJ~& Y respondents' independence

and impartiality to carry out any judicia! or quasi-judicial
proceedings against the appficant is compromised by the

powers of the Minister to appoint ftlek members and give

them directions w//lch they must obey and by virtue of

their membership of the Nigerian Medical Association.

5, A declaration that It wit! be unconstitutional and therefore

null and void for the ? respondent to accuse the
applicant, set up the yo respondent to investigate hlill and
also set up a tnbunal of Its members to try the applicant;

6. A declaration that it is unconstitutionai to tire 2'11respondent

to set up tnbunal to try tire applicant for an action he did not
know was an offence at tire time of its occurrence.

1. A declaration that It is ultra-vires for the 2'd respondent to

Investigate or try the applicant for announCing the discovery

of vaccines against HIV infection.

8. An Order of mandatory Injundion restraining the respondents,

their officers, agents, servants and pnvies from investigating

the applicants or setting up a tnbunai to try him.

g. Such further or other Orders as the Honourable Court may

deem fit to make in the cfrcumstances. fl

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Written addresses were filed by the respective paTties to supplant Lheir
•
submissions on the Motion, After considering the affidavit evidence adduced by
the respective parties and their various written submissions, the learned lrial judge
found the Motion to be unmeritorious and dismissed it. It is against the dismissClI
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 29\1'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 1sl respondent, filed and
exchanged briefs of arguments. Learned counsel for the appellant formulated tile

following issues for determination; viz:

"1. Whether the lower court came to the rigllt deCisionto
dismiss the appellant's application when it ignored the
bulk orthe affidavit evidence before it.

2. Whether the lower court did not err when it failed to hold
as unconstrtutional the:f" respondent's clear attempt to
be the accuser, the prosecutor andjudge In its own case.

3. Whether the lower court was right when it held that the
rand r respondents were statutory bodies eanying out
statutory functions when by their own admission tlley were
not constituted according to law,

4. Whether the lower court was not completely in error wilen

it held that the appellant cfaims 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 1strespondent and completely failed to consider tlie

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bulk of the appellants case.

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6. Whether the lower court was not in error when it failed
to hold that the bias of the:r respondent ,1gainst tile
appellant vitIates any dalm it has to imparttiJlity 1/1 the

trial of the appellant,

7. Whether the judgment of ti,e lower court waS not tainted

by the bias of tire 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 tile learned trial judge considered the entire
case, incfuding affidaVit eVidence by the parties and
counsel's submissions, before arriving at his concfusion
that the applicants case i5 unmeritorious and lacks
merit? (Grounds 1and 5).

2. Whether from the totality of the mateniJ/splaced before (/Ie

lower court, it could be said that the 3d respondent breached

the principles of fait hearlog as enshnned In the Nigeria

Constitution and the rules of natural justice wilen It invited

the applicant for Investigation (Grounds 2 & 6).

3. W7lether the materials placed before the lower court

justified the assertion of the appellant that the ZIG and:r

respondents were not properly constituted to perfomJ

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).

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• s. Whether the learned trial judge exhibited bias agaillst
the appellant as applicant in the lower court in his
consideration orthe case (Ground 7), fl

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 22fl(1 May 2000 signed by the SecretiJlY to the 3'd
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 tile
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 restrairling
the respondents from carrying out the proposed investigation. An objection was
taken by the respondents to the jurisdiction of the FCTHigh Court to entertain the
matter. that court upheld the objection, and the Suit at the FCT High Court was
accordingly struck out on 3m July 2000.
Following the striking out of the Suit at the FCT High Court and the
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consequential discharge of the earlier Order of interim injunction, the 3 t!
respondent once again by letter dated 14111 July 2000 invited the appellant to
appear before it on Monday, 31,l July 2000, in respect of the proposed
investigation. To this letter was attached a letter dated February 17, 2000
addressed to the 2ndrespondent by one Dr. Seyi Roberts, Consultant Physicianand
Neurologist, complaining about the professional conduct of the applicant
concerning his aileged discovery.
Foilowing the said invitation, the appellant applied to the Court of Appeal for
an order to restrain the 3m 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 Respondentsfrom conducting the investigation of
the appellant in any way whatsoever, pending the determination of the substantive
motion on notice now pending before the iower court. The Court of Appeai further

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 directed that the lower court should dispose of the substantive motion on notice as
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expeditiously as possible.
There had been series of publications in the news media concerning Ule

alleged therapeutic breakthrough by the appellant for the cure of HIV-AIDS. The
3ed 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 1'1 respondent had hitherto been hostile to

him and his alleged discovery and that the invitation that he should appear before
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the 3'd respondent must have been a consequence of the 1 respondent's hostility.
He aiso alleged that the 2nO and 3'd respondents are under the control and
supervision of the I" respondent and that as all the respondents are likely to be
biased against him, he would have no chance of fair hearing before lhe 3'd
respondent. He in fact alleged that the 2n~ and 3,,1 respondents are under the
directives of the l,t respondent to remove his name from the Medical Register at

all costs.
The applicant also alleged that the Nigerian Medical Association, which is

the umbrella professional body for ail medicai practitioners had criticized him and
his discovery, and that because of this no member of the Association is qualified to

sit in judgment over him in respect of the subject matter. That was why the

appellant had to resort to the lower court for the grant of the reHefs sought.
While making submissions on the issues he formulated, learned counsel for
nO
the appellant, argued on issue NO.1 that because of the statutory nature of the 2
and 3'd respondents, the number of their members and the manner of their
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appointment, their decision could be influenced by the 1 respondent, the Minister
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of Health in charge of the Ministry under which the l,t and 2 respondents are
parastatal and panel. He submitted further that statutory bodies that are larger in
number whose members are not even appointed but elected have been
manipulated, are being manipulated in Nigeria every day. Learned counsel urged
this court to tak.e judiCial notice under Section 74(1)(c) of the Evidence Act of the

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National Assembly and the Housesof Assembly of the States. He cited the case of
National assembly v. President (2003) 9 NWLR (Pt. 824) 104 at 131 C-D.
Learned counsel cited an example with the Senate which regularly suffered
continuous for 4 years mainly due to influence from outside it. He cited the case
of Yakubu v. Governor of Kogi State (1997) 7 NWLR (Pt. 511) 66. He also
cited the episode in Anambra State with the purported resignation of the Governor
Dr. Chris Ngige where learned counsel said, the entire House of Assembly was
manipulated. Olaye v. Chairman, Medical and Dental Practitioners
Investigating Panel &. Ant (1997) 5 NWLR (Pt. 506) 550 was cited.
Learned counsel argued that facts, not in issue but so closely connected with a fact
in issue were completely ignored by the trial court against the provision of Section
7 of the Evidence Act. The 1,1 respondent carried out between March and July
2000 a series of actions and pronouncements against the appellant which
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culminated in his announcing the ban of the appellant's vaccines on 20 of July
2000. It is also clear that the move of the 200and 3rd respondents against the
appellant since May 2000 is so closely connected in time and place with the
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other acts and pronouncements of the 1strespondent to form part of the same set
of actions or those other actions and utterarlces of the 1,1 respondent to form the
motive for the action of the 2ndand 3m respondents against the appeliant, namely
inviting him to come for an investigation of a spurious offence. Learned counsei
stated that the judgment of the lower court was against weight of evidence as it
completely neglected the evidence of the 2nd and 3rd respondents showed bias
against the appeilant attempting to try him while the matter was already sub-
judice. Another reason why the judgment of the lower court was against weight of
evidence is that the lower court chose to believe the evidence of a party that
engaged in deliberate falsehood. The lower court ignored the evidence presented
before it in discovering vaccines against HIV. Another important evidence glossed
over by the iower court is the fact that none of the newspaper publications exhibits
p6a to p6g was an advertisement or an articie written by the appellant. None of
them was an interview. They were articles written by others. Case of LPDC v.
Gani Fawehinmi (1985) 2 NSee 998, The learned trial judge's raising of the

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issue of scientific proof of the appellant's vaccine, suo motu in his judgment is
another proof of the fact that the judgment was against weight of evidence as he
imported into the case a foreign issue obviously from a personal position held by
him in respect of the appellant's vaccine for which lapse his judgment ought nolto
be ailowed to stand. fashanu v. Adekoya (1974) 1 All NlR (Pt.l) Romaine
v. Romaine (1992) 4 NWlR (pt. 238) 650.
Issue NO.1from the issues formulated by learned counsel for the 2nd and 3rd
respondents corresponds witll appellant's first issue. Learned SAN for the 2"d and
3'd respondents submitted on that issue that the submission of each of the counsel
highlighted the affidavit evidence offered by each party in support of his Celse.The
learned trial judge adopted the correct approach to the case and gave adequate
consideration to the evidence offered by the parties as far as they are necessaryto
determine the reliefs sought by the appellant. On the alleg<ltionof manipuiation of
2ndand 3'd respondents by the 151respondent, learned SAN submitted that what
the appellant is required to establish is dear evidence of the manipulation of the
2nd and 3r~respondents by the 1<1.
respondent. it is incorrect for the appellant to
speculate. Learned SAN submitted that all the examples cited by the appellant in
support of his argument are inappropriate and irrelevant and should be
discountenanced.
Learned SAN cited and relied on Section 15(3) of the Medical and Dental
Practitioners Act, Cap. 221, LFN which invests 3r~ respondent with the duty of
conducting preliminary investigation into any case where it is alleged that a
registered person has misbehaved in his capacity as a Medical Practitioner or
dental surgeon, or should for any other reason be the subject of proceedings
before the disciplinary tribunal. He cited the .case of lDPe v. Fawehinmi
(supra). On the issue of allegation of motive on the part of the 2"d and 3rd
respondents for inviting the appellant for investigation, learned SAN submitted
there is no evidence of such motive and the law is ciear that motive is irrelevant to
the consideration of this type of matter. Agbo v. CON(1996) 10 NWlR (Pt.
478) 370 at 377 E~f. On the allegation that 3'd respondent had manufactured
the letter from one Dr. 5eyi Roberts dated 17/2/2000 and told a blatant lie; learned

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SAN submitted that this is objectionable and Is an unprofessional use of language
by counsel. The allegation appears fraudulent which as a crime requir-esproor
beyond reasonable doubt. There was no pleading and no evidence from the
appellant to establish that allegation. The lower court was right in
discountenancing the allegation. Learned SAN argued that on the m<ltters of
investigating whether there was advertisement as defined in the medical code of
ethics, these were issues for the panel and not for the court as the court cannot
usurp such function. Ajakaiye v. Idechai (1994) 8 NWLR(Pt. 364) 504 at
525-526 referred. Failure of the court to decide the issue is not the same thing
as saying that the lower court failed to attach weight to the evidena::
On issues not pronounced upon by the iower court, learned SANargued that
failure of the court to pronounce on them would not vitiate tile proceedings as
they were questions of law requiring no further evidence and the failure to decide
them did not iead to a miscarriage of justice. He urged this court to assume the
position of the lower court to pronounce on them where necr:ssary.
Appellant's Issue NO.2: The submission of learned counsei for the appellant on
this issue is condensed as follows. The 3rd respondent accused the appellant and
was going to play the roles of his prosecutor and judge before he went to court
against it. The 3rd respondent's letter of 2200 May 2000 carried along with it 7
newspaper cuttings attached to it which clearly showed that tile 3m respondent
procured the evidence it was going to use to prosecute and judge the appellant
whereas Dr. Seyi Robert's letter did not refer to those seven newspaper cuttings.
Reference was made to Legal Practitioners Disciplinary Committee v.
Fawehinmi (1985) NSCC998 at 1018-1019. When on the lS!11May 2000, the
31<1 respondent decided to accuse the appellant, its chairman presided over that
meeting, the letter of 2200 May 2000 was signed by its Secretary plainly on the
Chairman's instruction. The same chairman was going to sit in judgment over the
appellant on 26th June 2000 before he was stopped by the order of the court.
In response, learned SAN for the 2r<1and 3rt! respondents in his issue NO.2,
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stated that Dr. Seyi Roberts compiaint against the appellant in the letter of 17
February 2000, if read together, it could not reasonably be said that the 31<1

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respondent was the accuser, the prosecutor and the judge all at once. As for the
newspaper publications attached to exhibits p6, they were made to the world at
large. So aisa were the electronic news items that were published on the subject.
SO if any member of the 2"" respondent council came to the knowledge of tile
publication and drew the attention of the 3'd respondent's panel to it, It would not
be wrong for the 3rd respondent to conduct an investigation based on such
information. Section 15(3) of the Medical and Dental Practilioners Act (supra)
referred to. Learned SAN submits that the role of the 3'd respondent is only to
conduct preliminary investigation into allegations of misbehaviour by a registered
person which role the appellant confused with that of adjudication. Learned SAN
tried to draw distinctions between the case of Legal Practitioners Disciplinary
Committee v. Fawehinmi (supra) and the appeal on hand.
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Appellant's issue three is on the membershiP/constitution of the 2,><1 and 3
respondents. Learned counsel cited the provisions of Section 2 (1), (a), (e) and
(f); 15(3) of the Medical and Dental Practitioners Act to debunk the assertion that
the 1sl respondent had nothing to do with the appointment of members of the 2,><1

respondent, which, if not properly constituted, could not properly constitute the 3'd
respondent. The case of Madukolu v. Nkemdilim (1962) NSCC 374 at 379
was referred to, Learned counsel urged this court to declare the attempt by the
3'd respondent to arraign the appellant a nuiiity being itself incompetent and

lacking in jurisdiction.
Learned SAN for the 2ndand 3'd respondents on the issue of constitution of
the 2ndand 3'd respondents made the following submissions: that membership of
the 2n~respondent is statutory. It is trite law that parties need not join issues on a
statutory provision which once found applicable by the court would be readily
appiied. Section 2 of the Medical and Dental Practitioners Act referred to. Any
deposition to the contrary ought to be ignored. Authorities cited by appellant are

inapplicable.
Appeilant's issues 4 and 5 were argued together. The learned trial judge
ignored the case of the appellant, treated his application only as a complaint
against the actions and utterances of the 1st respondent, subsumed almost the

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entire application under the issues raised by the 151 respondent and came to wrong
conclusion that the applicant's claim was not covered by Chapter IV of the Nigeria's
1999 Constitution and dismissed it. The learned counsel for the appellant stated
that 3rd respondent's issues coincided with the appellant's issues 2, 3, 5 and 6
which were treated by the lower court. Issues 7, 8 and 9 were not subsumable
into the 3r~respondent's issues as they raised different questions altogether. He

cited and retied on; ygbodume v. Abiegbe (1991) 8 NWLR(Pt. 209) 261 at
p.274 E-F. Learned counsel urged this court to set aside the learned trial judge's
judgment as lle failed to critically consider all the issues raised by the appellant in

his application,
nd rd
On these issues which correspond to the 2 and 3 respondent's issue 4,
the learned SAN adopted his earlier submissions. He submitted further that even if
it is conceded that the lower court was wrong to have heid that the action was
outside the purview of the Fundamental Rights Enforcement procedure, that had
not occasioned any miscarriage of justice as the lower court had considered the
case on Its merit and come to a conclusion which in the circumstances of the case

is fair.
The appeliant's 6t1\Issue is on the iack of independence and impartiaiity of

the 3r<lrespondent which was lost on the learned trial judge for reaSOflSproffered

earlier.
On issue 7, the learned counsel for the appeilant argued that the judgment

of the lower court was tainted with open bias against the appellant in favour of the
1st respondent. he made some citations of instances such as where the learned

trial judge found that the applicant/appellant distorted the method of appointment
of 20<1respondent's members. He stated that none of the respondents at any point
ever accused the appellant of distorting any figures. How did the learned triai
judge come by that accusation remains mysterious. The second instance is about
the judge's idea of scientifiC approval of the appellant's vaccines. This shows the

learned trial judge had taken a stand that the appellant had refused to assure
Nigerians that his vaccines were scientifically approved and he must go before the
3'6 respondent to do so. The learned trial judge, learned counsel submitted, was

II
 clearly biased against the appellant in the application before him, Cases of Ude v .
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Chimbo (1998) 12 NWLR (Pt. 577) 109 at 183; Ogunlowo v. Ogundare
(1993) 7 NWLR (Pt. 307) 610 at 624 were cited in support.
Learned SAN for the 2nd and 3rd respondents submitted on the issue of bias
that the statements in the above statements cited from the learned trial judge's
judgment were no more than the findings of the court, It is a mistake to take
them as evidence of bias. He submitted further that bias on the part of the judge
or a tribunal can only be perceived during the hearing or trial of a case by the
outward conduct of the judge or tribunal towards a party or the parties while
conducting the case. The case of Deduwu v. Okorodudu (1970) 9-10 SC 329
at 353-354 was cited. The complaint of the appellant and the facts adduced do
not support the accusation of bias against the learned trial judge. The submissions
and authorities cited in support of the Issue of bias in the appellant's brief are

irrelevant and ought to be discountenanced.

In a reply brief filed by learned counsel for the appellant certain points were
sought to be clarified. For instance, in respect to Dr. Seyi's letter as the basis for
the appellant's application before the lower court, the respondent negiected to say
that a fresh application was filed before the lower court on 4lh of July, ZOOO and
the applicant was granted leave to appeal to enforce his fundamental human rights
on 7th July 2000 and that the 200 and 3'd respondents were served on same date
with the motion on Notice i.e. one week before the 3'd respondent wrote its letter
of 14tn July 2000 to which the ietter of Dr. Seyi was attached. Appellant stood by
his submission that Dr. Seyi's letter was manufactured and a forgery. The letter is
in admissible in evidence per Section 91 (3) of the Evidence Act and as a suit was
pending in court. Learned counsel for the appellant submitted that the basis of
the appellants application before the lower court is the ZOO and 3'd respondents'

letter of 2200 May 2000 and not Dr. Seyi Robert's letter.
Dn the issue of the trial judge's review of evidence, learned counsel argued
that the iearned trial judge said nothing about the question of a party being a
judge in his own cause. He did not deal with issues 7, 8 and 9 raised by the
appellant. From the issues he formulated himself, he only addressed one of them.

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 The issue of whether the appellant as a medical practitioner could develop a
vaccine and apply it to human beings before going througll the normal process
was never raised before the lower court, it is wrong for the respondents to urge
this line of argument upon the court. Finally, it did not emanale from the
appellant that the 1'1 respondent had nothing to do with the appointments of the
membersof the 2ndrespondent.
I will now consider the issues raised by the appeilant's learned counsel one
by one. Issue NO.1 is on ignoring of the bulk of the affidavit evidence before the
trial court. In his judgment, the learned trial judge reviewed tile affidavit
evidence placed before him by the parties. He considered the written addresses
by the parties along with the affidavit evidence. See pages 267 - 276 of the
record. The learned trial judge has shown that he evaluated the affidavit
evidence. This is what the learned trial judge said:

"Most importantly the applicant has not placed before this court
any convincing evidence to show that any of the members of Ihe
councilor panel is biased or shared the vIews with the then
Minister of Health......... The above as my premises I hold that
the case before court is unmeritorious and lacks merit. n

This, to my mind, indicates that the learned trial judge reached his conclusion to
dismiss the case after he had considered the totality of the affidavit evidence
placed before him. If it was otherwise, then the learned trial judge would not
have been able to consider the "merit" or otherwise of the case. A case is decided
on its merit when every evidence proffered by the parties has been considered
along with the prevailing laws. I think it is just a matter of style how a judge
considers the evidence laid before him and the prevailing law in arriving at his
findings and conclusions. I think whichever method a judge adopts in reaching his
conclusion, so long as he does not under-evaluate or over-evaluate the evidence
placed before him or misapplies the prevailing law, which is capable to cause a

I]

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 approach in his consideration or evaluation of evidence. See: Nneji v. Chukwu
(1996) 10 NWLR(pt, 478) 265. I resolve issue NO.1 against the appellant.
I will consider appellant's issues Z, 3, 6 and 7 together and at once as they
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appear related. An umbrella holding of the learned trial judge in respect of Lile

above issues reads as follows:

''I do agree with the learned SAN for the 2'" and F
respondents MR. AKINLONU for the 151respondent that 2'"
respondent, a statutory body known as Medical and Dental
Council of Nigeria hereinafter referred to as "the Catino!" is

a body corporate with perpetual succession and a common

seal and may be sued or be sl)Cd in its corporate name, is <J

creature of statute. See Section 1 (1) of Cap. 221 LFN 1990.

Simtfarly the Y respondent is created by Section 15(3) of
Medical and Dental Practitioners Act, Cap. 221 LFN 1990 and is
charged with the duty of conducting a prelimtlJary investigalion
into any case where it is alleged that a registeled persOIl lias

misbehaved in his capacity as a medical practitioner or dental

surgeon, or should for any other reason be subject of

proceedings before the disciplinary tribunal. It is worthy to
note that this Investigating Panel is appointed by the Couno!
and shall consist of 15 members, at least tlrree ofwllom shall

be dental surgeon. The councIl shall consist of a Chairman

to be appoint by the President - Section 2 (1) and ot/rer

fifty-seven members whic/rl51 respondent as tire Minister of

Health has the prerogalJve to appoint only seven of them.

The above method of appointment whid) tile

applicant distorted IS statutory and leaves no room for the

1" respondent to manipulate for hIs advantage. Beside

? respondent is a body corporate and its ehainnan and a

majority of its members are appointed by the President of

thiS country Independent of any advice from the 1"

respondent. J am not persuaded to hold that in tile

arcumstance it is possible for those 38 appointees to be

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 influenced and controlled by the 1appointees of lsi
respondent. Those members are experienced medical

practitioners who are paid by the Government and their sale

aim is to sanitize the medicaf professional, their chosen •
profession. Not even reliance on Section 4 of the Act
which the pt respondent is enjOined /0 give directions of

generaf character or relating generally to particular matters

will affect the view of this court that the counol is not

controlled and manipulated by the lsi respondent.

......... I cannot agree with the applicant that the Minister

of Heafth has controflfng authority over the Counal as
constituted by Section 2 (1) of the Ad; especlafiy when
they are removed only by the President of this country.

Fwthermore. the appointment of the:r respondent under

Section 15(2/ of the Act which 15ad hoc leaves no room

for manipulation. That Is to saV no member of the medical

profession Is sure of such aopointment. and In order to

instilf sanity into the medical profession such bodv is sure

of such appointment and in order to Instill sanitv into the
medical profession such bodv is very necessary, Being
ad hoc In nature it is not possible for the unknown members
to be Influenced bv the 1>1 respondent. In this particular

case the applicant in all his affidavits filed did not specificaify

pOint out wllich member of the Panel wasjis Ineligible. The

mere fad that afl the parties are nominal members of the
Medical Association which hoids an opinion against the
applicant is not enough to impute to any of them the views

of the AssOCIation or infer that the member Is likely to be

biased. N

(Underlining for emphasis)

rd
Thus, the fundamental points raised in the above issues are that 3 respondent's
attempt to be accuser, prosecutor and judge in its own case should have been held
unconstitutional by the trial COUrti 2nd and 3m respondents were not constituted

15
according to law and that there were bias from the 3'd respondent and the learned
trial judge against the appellant.
In resolving issue No,2, it is my finding that the learned trial judge did not
make any pronouncement on the issue of attempt by the 3'd respondent to be the
accuser, the prosecutor and the judge in its own case. This was largely so
because from the affidavit evidence, there was no averment to match that

allegation.
I think a court of law is a court of facts and law. It is not a court of
speculation. Where there is no evidence upon which to base its decision, a court
has no alternative but to dismiss the case placed before it. It is clear thOlteven
the learned counsel for the appellant formulating his issue No,2 used this
expression "attempt to be". This shows that the intended action has not been
consummated into real/actual action. It remains speculative whicll is as good as a
non-starter. See: An;mashaun v. K,C.H (1996) 10 NWlR (Pt. 476) 65;
Okereke v. State (1998) 3 NWLR (pt, 540) 75j Orhue v. NEPA (1998) 7
NWLR (pt. 557) 187. Thus, appellant had no right to speculate what would
happen at the Medical Panel or the court unless he as subjected himself to their

jurisdictions.
On the 3'd issue, it has been seen above that the court below found that
both 2nd and 3rt! respondents were created by statutes and were conducting
statutory functions. Learned counsel quoted paragraph 3 (d) of the 1$1
nd
respondent's counter affidavit of lStl1 October 2000 and paragraph 4 of the 2 and
3m respondents' counter-affidavit of 20th July 2000 to argue that all the
respondents were in agreement that the 151 respondent had nothing to do with the
appointment of the members of the 2nd and 3'd respondents which according to
him, amounted to admission that they were not constituted according to law. But
the interpretation given by the learned trial judge is that the above statutory
method of appointment leaves no room for the 1strespondent to manipulate for his

advantage. He stated further:

16
 "Beside Z'" respondent is a body corporate and its chariman
and a majori/}' of its members are appointed by the President
of this country independent of any advice from the 1"
respondent. J am not persuaded to hold that in the
circumstance it is poSSible for those 48 appointees tv be
influenced and controlled by the 7appointees of the 1"
respondent. "
I think the trite law is that parties need not jOin issues on a statutory provision
which once found applicable, the court would readily apply it. See: Guinness
(Nig.) Ltd. v. AgQrna (1992) 7 NWLR (pt. 256) 728 at 741 A-B, Thus,
sections 2. and 15 of the Medical and Dental Practitioners Act have stipulated the
manner of appointment of members of the 2M and 3rd respondents, it is not open
for a party to dispute without clear evider"lceto the contrary, the stipulations of
those provisions. The learned trial judge concluded that the appellant ill all his
affidavits filed did not specifically point out which member of the panel was
ineligible. I am of the view too, that the 2M and 3rd respondents were statutory
bodies carrying out statutory functions assignedto them by the Act.
Issue 6 and 7 are on bias. Bias legally defined is a precondition to decide a
cause or an issue in a certain way which does not leave the mind perfectly open to
the adjudicators conviction. It sways judgment and renders a judge ur"lableto
exercise his functions impartially in particuiar case. Where it is established by
evidence or acknowledgement it disqualifies a judge from participating on the
matter placed before him. See: Eriobuna v. Obiorah (1999) 8NWLR (Pt.
616) 622; Okeke v. Nwokoye (1999) 13 NWLR (Pt. 620) 601.
Two separate and distinct allegations of bias were made by the appellant-
(i) bias against the appellant by the 3M respondent; and
(ii) bias against the appellant by the learned trial judge.
In the 1st set of allegation of bias, one needs to look at the functions of the
3m respondent as provided by the Act. Section 15 (3) provides the Panel shall be
charged with the duty of-
'ra) conducting a preliminary investigation into any case
where it is alleged that a registered person has

17
 misbehaved in his capacity as a medical practitioner or
dental surgeon, or should for any other reason be the

subject of proceedings before the DisCIplinary Tribunal;

(b) compelling any person by subpoena to give evidence
before it;

(c) deciding, if satisfied that to do so is necessary for lire

protection of members of the public; to make an order

for interim suspension from the medicai or dental

profession in respect of the person whose case they

have decided to refer for inquiry; and for the case to

be given accelerated heanng by the Disclpiinary

Tribunal within three months; or

(d) deciding, If satisfied that to do so is necessary for the

protection of members of the public or is in Iris interest,

to make an order for Interim conditional registration in

respect of that person, that is to say, an order that his

registratIon shall be conditional on his compiiance, during
such period not exceeding two months as ISspecified, as
the Panel may think fit to impose for the protection of
members or the public or I"n hiS interest. "

I think there is need for clarification on the episodes as chronicled in the

record of appeal. The first invitation to the appellant to appear before the Panel
sitting at Abuja for investigation was through a letter dated 22r><1
May 2000, and
signed by the Secretary to the 3'd respondent. the applicant then (appellant)
applied to the FCT High Court which granted him ex-parte order of interim
injunction restraining the respondents from carrying out the proposed
investigation. This was later struck out on 3/7/2000. The appellant then filed an
application to enforce his fundamental rights by a Motion dated 5/7/2000 but filed
on 7/7/2000. As the Order of 7/7/2000 granting leave to the appellant to enforce
his fundamental right did not include an order for interim injunction for the

18
investigation, the 3m respondent once again invited the appellant vide its letter
dated 14/7/2000 to appear before it on 31/7/2000 in respect of the proposed
investigation. Following this invitation the appellant obtained an intel"im order on
21/9/2002 from this Court against the proposed investigation. Thus, as there was
no order prevailing which prevented the 3,d respondent to conduct its statutory
functions as at the time the second letter of invitation to the appellant was sent to
him, the 3rd respondent had every right to validly invite the appellant for
investigation as per the stipulation of Section 15 (3) of the Act. That cannot in my
view, amount to bias. It only amounted to attempt to comply with statutory
provisions conferred on the 3rd respondent. Secondly, 3'd respondent's attempt to
"manufacture" evidence against the appellant through the letter of One Dr. Seyi
Roberts. That the letter was not authentic. I agree with the learned SAN's
submission that such an i;lllegation amounted to commission of forgery. Telling
"blatant lie" on Oath also tantamounts to perjury. Both allegations are criminal in
nature which require proof beyond reasonable doubt as per Section 138 of the
EvidenceAct. No such proof was established before the lower court. The lower
court was right in its conclusion that the case before the Panel was a report made
by Dr. Seyi Roberts against the applicant. It is trite law that once the findings of a
trial court are not perverse, an appeal court has no business interfering with such
findings. See: Egharan & Ors v. Akpotor & Ors (1997) 7 SCNJ 392; Ahmed
v. State (1998) 7 SCNJ, 60; NkadQ & Qrs. v. Ohiano & Am (1997) S SCNJ,
33. I find no eiements of bias here too.
The second set of allegations of bias was ievied against the learned triai
judge that he was tainted with open bias against the appellant in favour of the 1'l
respondent. Several instances were cited from the learned trial judge's judgment.
It is apt to reproduce an instance, i.e. page 279 of the record.

''In the above method of appointment which tile applicant

rfi~t{)rtPrl is statutoI}' and leaves no room for the 1'"

respondent to manipufate for his advantage. "

19
The quarrel of learned counsel for the appellant here is with the use of the word
"distorted" which is underlined. To "distort" means to change the shape,
appearance or sound of something so that it looks strange or not clear. It
amounts to act of twisting or changing of facts, ideas, etc so that they are no

longer correct or true.

The learned trial judge made that observation after he had chronicled the
methods of appointment of members to the 2nd and 3rd respondents. But prior to
that, learned counsel for the appellant made submissions before the trial court,
which the trial court reviewed, as follows -

'~s pointed out above under the provisions of Section 2 (l) of

the MDPA the 1" respondent appoints 7 members of tile Z'd

respondent. under Section 4(1) the r respondent is bound to
carry out the directives of 1" respondent. under Section S the
pt respondent maintains total financial control over the Z'~ and

P respondents. The independence of the P respondent 111 a

case In which the 1'" respondent has personalized issues as he
has done in his controversy with the applicant can oniy be very

tenacious Indeed. Referred to paragraphs 4(b) of their own

further and better counter affidavit where rand P respondents

averred that they are under the supetvlsion of the Federal
MinIstry of Health where the 1"" respondent hoid sway. It was

he that inaugurated the 1'<1respondent on the 13/12/99 and

relied on L'EGALPRACTITJONERS DISCIPUNARY COMMI7TEE

VS. FAWEHINMI (1985) 2 NSCC 998. Learned counsel

concfuded that in the present case 1st respondent who maintains

personal hostility towards the applicant is in a posItion akin

to that of an employer to the rand P respondents. In iJis
view the rand P respondents are bound to take sides with

the 1" respondent in a dispute with the applicant. He urged

the court to hold that there is a likeiihood of bias. "

20
• The learned trial judge found out that 2",1respondent as a statuto-ry council shall
consist of a chairman to be appointed by the president and other nfty-seven
members which the 151 respondent as the Minister of Health has tile prerogative to
appoint only seven of them. It is the colour added to the provisions, by learned
counsel for the appellant, in my view, such as the issue of personalization of issues
by the 1,t respondent; personal hostility of the 1st respondent towards the
appellant and the relationship of 1'1 respondent and 2nd and 3rd respondents as

that of employer and employee where the latter is bound to take sides with the
former (i.e. 1st respondent) as employer. Except where one takes a hard look at
the provisions in question, one may be bound to believe the scenario set out by
learned counsel for the appellant That cannot be weighty enough in my view to
levy allegation of bias against a trial judge. The pronouncements of our superior
courts of record are always consistent that for an allegation of bias to be grounded

against the person of a judge, it must be made on solid and unshaken grounds not
on mere pigments of imagination. In the case of Onigbede v. Balogun (2002)
6 NWLR (pt. 762), at p. 29 the Supreme Court per Ogundare, JSC reiterating
the principles of law stated by Lord Denning M.R; held among other things that:

" considering whether there was a reallikefihood of bias,

the COUlt does not fook at the mind of the justice himself or
at tI,e mind of the chairman of tI,e tribunal, or whoever it

may be, who sits in a judiciaf capacity. It does not look to

see If there was a real iikelihood that he wouiet or diet in fact
favour one side at the expense of the other. nlc court looks
at the impression which would be given to other peopfe. Even

If he was as impartial as couid be, nevertheless If right-minded

persons would think tha~ in the circumstances, there was a

real fikel,hood of bias on his part, then he should not sit. And

if he does siC his decision cannot stand: see Reg v. Huggins

(1895) 1 Q.B. 53 and Rex v, 5underiandJustices (1901)

2 K,B, 357, CA PER Vaughan Williams L.]. Ibid 373.

Nevertheless there must appear to be a real likelihood of bias.

21
,
".
Surmise of conjecture is not enough; see Reg V. Camborne
Justices, Ex-parte Pearce (1955) 1 Q.8. 41, 48-51/
,
(1954)3 WLN 415; 2 All E.R. 850D.C. and Reg v.
Naifsworth licensing Justices, Ex parte Bird (1953) 1

WLR 1046; (1953) 2 All E.R. 652, D,C There must

be circumstances from which a reasonabfe man would think

it likely or probable that the justice, or chairman, as the

case may be, would, or did, favour one side unfairly at

the expense of the other. The court will not inquke

whether he did, in fact, favour one side fairfy. Sufflce

It that reasonable people might think he did. The

reason is plain enough. Justice must be rooted in

confidence: and confidence is destroyed when light-
minded people go away thinkkig: Thejudge was biased. "

Also, in Orugbo & Am. v. B\llara Una & Drs (2002) 9-12 SeN], 12 at p.32,
the same court reiterated -

"The constitutional provision of faIr hearing has no tribal

insinuation of the composition of the bench vis-a-vis the tribes
of the parties. A party should not be heard to complain that
because he is not of tIle same tribe with members of tile bench

he cannot have a fair hearing. That in my humble view, is

the most inVidious and llJeongruous approach to this very

important legal principle. If the contention is correct, then most,

if not all trials in our judicial system, must be faulted because

the composition of most courts may not agree with the tJibes
of the litigants. Perhaps an example will make the point

clearer. No Asian, American, German or any other foreigner

would submit to the jurisdiction of any Nigerian court because

virtually al! courts in Nigeria are constituted by Nigerians. Was

section 33 of the 1979 Constitution, which is now section 36 of

the 1999 Constitution, designed to cure such a crude situation.

22
 No, not at al,. Tribal composition at the bench per S2 cannot
be basis for the charge of bias or likelihood of bias, unless tile

aggn'eved party shows by the conduct of the bench such bias

or likelihood of bias. The constitutional provisIon of fair Ileafing

is already large and omnIbus and [ am not prepared to expand

the frontiers beyond its onerous contents of ambit."

The learned counsel for the appellant failed to show what pecuniary benefits or
any benefit at all, the learned trial judge stood to gain by his above
pronouncements. Generally, bias or likelihood of bias should not be built upon
chase of a wild goose in an unlimited thick forest. The case of Yabugbe v. C.O.P
(1992) 4 NWlR (Pt. 234) 152 ciarifies the issue more where it was stated that
a man is said to be a Judge in his own cause when he is likely to be biased in
favour or against either for reason of interest or favour. In other words, if he has
either pecuniary or proprietary interest in the subject matter in litigation, or,
because of his relationship with either of the parties, he is likely to be biased in

favour of or against him, then he ought not to be the judge.

''Jf Courts are to go by spurious allegation of bias as in thIs case,

then nO legal practitioner can be tried by any Court because he

belongs to same profession as the Magistrate or High Court Judge

that might try him. Similarly, judicial officers with shares in

public companies or coming from particular State of Nigeria

cannot try or hear any case involving such companies or any of

arms of the Government of/hal State. [think there is a limit
to which the chase of such wild goose can go. Concrete evidence

of bias must be shown before the allegation can succeed. [n

the present case [ see no such evidence and 1, therefore

consider the afiegation to be frivolous and unfair to the

learned (nal Magistrate."

23
 Accordingly, none of the allegations of bias levied in this appeal can succeed as
•
they lack merit. I decided issues 2, 3, 6 and 7 against the appellant.
,
, Appellant's issues 4 and 5 were argued together. The main grouse of the
appellant is that issues 7, 8 and 9 formulated by the appellant could not be
st
subsumed under 1 respondent's issues and were not deliberated upon by the
learned trial judge as he ignored the clear differences. Now, wllat are these
issues?
"Issue NO.7: Wllat is the effect where the prosecutor Ifl a case is
both the complainant and the judge rolled into one? Does the
Nigeria law allow a party to be a Judge in his own case?

Issue NO.8: Whether or not the allegation in Exhibit P6 are /lot

spurious and a calculated attempt to victimize the Appellant
having regard ro paragraph 34 a, b, d, e, f and h of the Medical
and Dental Practitioners Rules of Professional Conduct.

Issue NO.9; Whether or not the r respondent Is not acting

uitra vires in setting up the P respondent to invest/gate the

appellant whose actIvities have moved beyond the boundaries
of traditional medical practice. "

let me observe that the issues above raised have not featured in the judgment of
the learned trial judge. This is because the learned trial judge preferred to adopt
the issues formulated by the 1st respondent. the issues formulated by the 1$t, 2"d
rd
and 3 respondents did not subsume the above issues. But is it necessary that
these issues must be considered? The position of the law is that a court is duty
bound to pronounce on issues raised before it by parties. See: NBC Pic. V.
Boraundu (1999) 2 NWLR(pt. 588) 605; WR & P.C. ltd v. Onwo (1999)
12 NWLR(Pt. 630) 312; Fawehinmi v. Abacha (1996) 9 NWLR(pt. 475)
710. Where the trial court fails to consider such issues, the appeal court is in as
much a position as the trial court to determine such issue particularly where no

24
 - 1

further evidence will be required or where the issues are purely questions of law.

• See: Imonikhe v. A.G. Bendel State (1992) 6 NWLR(Pt. 284) 296 .

• Learned SAN for the 2nd and 3'd respondents invited this court to determine
• the above issues raised by the appellant before the lower court. Under Section 16
of the Court of Appeal Act, this Court has power to determine such issues. I shall,
accordingly, proceed to consider issues 7, 8 and 9 raised before the lower (QUit.
It is clear that this case was decided by the lower court on affidavit
evidence. Issue 7 alleges that the complainant rolled into one as prosecutor and
judge. I find no averment from the supporting affidavit in respect thereof. Where
no evidence covers an Issue, such issue, however brilliantly argued goes to no
issue as it is deemed abandoned and a court has no business to pronounce upon
it. It is akin to pleadings. see: Bello v. Fayose & Ors (1999) 7 SeN] 286.
Issue NO.8 is whether or not the allegations in Exhibit p.6 are not spurious
and calculated to victimize the applicant having regard to paragraph 34 (a), (b),
(d), (e), (f) and (h) of the Medical and Dentai Practitioners Rules of professional
conduct. Applicantjappellant submitted that there was no proof in Exhibit P6 and
any of the attachments to it that the applicant published or sponsored any
newspaper article. Learned counsel for the applicant concluded that the
respondents' mission was to naii the applicant by ali means fair or foul and this is
another reason why the court must restrain and prohibit the respondents from
trying the applicant. In paragraph 33 of the affidavit in support the
appiicantjappellant averred as follows.
"That in furtherance of this campoign of the Minister against me
and my vacCliles, I rtxeived a letter from the Z"j respondent on

the 2? of May 2000 inviting me to appear before the.r

respondent for an investigation pursuant to 5.15(2) of the
Medical and Dental Practitioners Ad Cap 221 of the Laws of

the Federation of Nigeria 1990. This letter had eigllt

attachments which are eight newspaper artides the Council

is accusing me of publishing. A copy orthe said ietter

is attached as Exhibit P6 and the annexures as Exhibit

P6a, P6b, P6c, P6d, P6e, P6f, P6g, P6h and P6i. "

2S
•
I think the essence of Exhibit P6 and all the annexures thereto is to convince the
•
, court to grant the relief sought by the applicant and not to determine their merits.
• • It is for the panel to first determine their merits or otherwise. It will appear
anticipatory for the trial court to treat exhibit P6 and its annexures on their merit.
I do not see how this issue will affect the decision already arrived at by the trial

court. It is an issue whose merit must be reserved to the time when merit of the
allegations levied against the applicant/appellant will be considered by the right

authority.
Issue NO.9. 2nd respondent is the Medical and Dental Council of Nigeria
which has been established by Section 1 (1) of the Medical and Dental Practitioners
Act Cap.Z2i, LFN, 1990, now contained in Cap. M8, LFN 2004. 3'd respondent is
the Medical and Dental Practitioners Investigating Panel established by Section 15
(1) of the Act. It is true that the powers of the Council have been spelt out by
Section 1(2) of the Act. But Section 3 (1) of the Act empowers the Council to do
anything which in its opinion is calculated to facilitate the carrying out of its
activities under the Act. One of the most important responsibilities of tile 3'd
respondent as per the provisions of Section 15 (3) (a) is conductiny a preliminary
investigation into any case where it is alieged that a registered person has
misbehaved in his capacity as a medical practitioner or dental surgeon or should
for any other reason be the subject of proceedings before the Disciplinary Tribunal.

It has not been shown that the appiicantjappellant's name no longer exists in the
Register of such professionals as required by Section 12 of the Act. It is a fallacy
for learned counsel for the appiicant/appellant to argue that what the applicant has
done in discovering anti HIV vaccines is outside the purview of traditional medical
practice and that he has moved into the realms of pharmacy or laboratory science.

Does that remove him from being a medical practitioner or dental surgeon? It is
my view that the 2nd respondent acted within the limits of powers conferred on it
by the Act. It did not act ultra vires by setting up the 3'd respondent to investigate

the appiicant/appellant. I resolve issues 4 and 5 against the appellant.

26
•

•
• In the final result, I find no merit in this appeal and it is hereby dismissed. I
• ,K1
• • affirm the judgment of the lower court which dismissed the case before it. Tile 2
and 3'd respondents are entitled to NIO,OOO.OOcosts from the appellant.

----------
<_.:c:./ (

-"'1rc</\j;>-t:.~/'i ::'
'-.
1. T.;;; l.iHAtt;"A
JUSTICE, edURf OF~, 'PEAL

MR. ISAAC OKPANACHIfor the Appellant

ALHAJI G. A. AOETOLA-KASEEM SAN, for the :lid and :in Respondents,'

with him: C. IS£' ESQ.

1ST Respondent and Counsel absent but served on 7/03/2005

27
•
1
•
••
• }.PPF,AI. NO. CA/A112112003
•
• ZAINAB A. BVLKACHVWA (JCA)

] have read before now the judgment just delivered by my learned

brother Muhammad leA. J-/(; had admirably dealt '""ilh all the issues

set out in this appeal. I have nothing useful to add. I adopt his
reasoning as mine in tlisrmssing the appeal which lacks ment.
I "bick with the conscqllcntd order including orders as to costs.

.,
 •
• •
-
•,-
,}
•
APPEAL NO, CA/A/121/2003

MARY U, PETER ODiLI. JCA,

I have had the opportunity of reading the draft of the

judgment of my learned brother, "T. Muhammad JCA. I
agree with the decision therein. I too dismiss the appeal
which lacks merit and the appellant is to pay N10,OOO.OO
Costs to the 2nd and 3rd Respondents.
, "
~
~
•
MARY U, PETER OmLI
JUSTICE, COURT OF APPEAL.

~ I