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 High Court of the Enugu-Onitsha Judicial Division upon the following three counts:- “ STATEMENT OF OFFENCE-1sT COUNT “Manslaughter, contrary to section 325 of the Criminal Code. “PARTICULRS OF OFFENCE “John Oni Akerele during the month of May, 1940, in the Province “of Owerri, unlawfully killed Kalu Ibe. “STATEMENT OF OFFENCE -2ND COUNT “Reckless and negligent acts, contrary to section 343 (1) (e) of the “Criminal Code.
PARTICULARS OF OFFNCE “John Oni Akerele during the month of May, 1940, in the Province “of Owerri, in a manner so rash or neg1igent as to endanger human “life, or to be likely to cause harm, gave medical or surgical treatment “to Kalu lbe whom he had undertaken to treat. “STATEMENT OF OFFENCE-3RD COUNT “Reckless or negligent acts, contrary to section 343 (1) (f) of the “ Criminal Code. PARTICULARS OF OFFENCE “John Oni Akerele during the month of May, 1940, in the Province “of Owerri in a manner so rash or negligent as to endanger human life “or to be likely to cause harm dispensed and administered medicine or “poisonous or dangerous matter to Kalu lbe.”
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 Owerri 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 overdosed 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 lbe 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-seven “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 “Urnuahia, upon the charge that he did on or about the sixth day of “May, 1940, at Asuga unlawfully kill the said Kalu Ibe. Given under “my hand at Ohafia this twelfth day of December, 1940. (Sgd.) 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 information 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 technicalities to an absurd degree to uphold the appellant’s contention, and we 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 (1) 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 case the evidence concerns other injections given “at the same session, so to speak as that administered to Kalu Ibe, “closely connected with it in point of time, place and circumstances.. “The evidence covers a course of conduct resulting in those various “consequences of which the death of Kalu Ibe was only one. In my “view, the evidence is admissible in proof that Kalu Ibe’s was not an “isolated case which might conceivably be due to some inadvertence, or “to some idiosyncracy 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 Judge 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 point which the prosecution had to establish. The first point for the prosecution 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 Ibe’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 same time and place had reactions similar to those of Kalu Ibe as to prove that his reaction could not be due to his own idiosyncracy, and therefore must be due to an overdose.
We think that the evidence was rightly admitted for this purpose, and this ground of appeal fails.
The third point of law which must be dealt with 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 as this to establish criminal liability. The learned I 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 be argued that a greater degree of negligence is required according to Nigerian law, though it might be argued and was argued
(incorrectly we think) by the learned Acting Solicitor-General who john 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 in 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 cases 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 he is held to have caused the death of, or killed, Kalu Ibe. We must then look to section 306 to see when a killing is unlawful.
That section read. “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 the 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 clear beyond all doubt that this child was “ killed by an overdose of Sobita and that accused “injected it.”
(2) “The conclusion is inescapable that accused acted with “a degree of negligence that can only be described as “criminal.”
As to (1) particular exception is taken to the word “overdose”; if “ dose” were substituted, exception would probably not be taken to the finding. The vital question is “was the dose proved to be an overdose?” As to this it is sufficient to say that we consider that there was ample evidence upon which the Judge-sitting as the sole Judge of fact-could come to the conclusion which he did, and and we see no reason to disturb his finding.
As to (2) it is well established that in trials with a jury it is for the jury to decide whether the negligence proved does or does not amount to criminal negligence. Lord Chief Justice Hewart put it in this way in the case of Re v. Bateman (1925) (19 Criminal Appeal Reports 8):- “In explaining to juries the test which they should apply “to determine whether the negligence, in the particular case, “amounted, or did not amount to a crime, the Judges have “used many epithets, such as ‘culpable’, ‘criminal ‘ “gross’, ‘wicked’, ‘clear’ ‘complete.’ But, whatever “epithet be used and whether an epithet be used or not, in “order to establish criminal liability the facts must be such “that, in the opinion of the jury, the negligence of the “accused went beyond a mere matter of compensation between “subjects and showed such disregard for the life and safety “of others as to amount to a crime against the State and “conduct deserving punishment.” The italics are ours.
In this case the learned trial Judge had, in this respect, exactly the same functions as a Jury. He haft to form and express an opinion as to whether the negligence of the accused was such as to amount to a crime against the State. Provided he directed himself correctly upon the law and facts and provided his opinion was supportable by the evidence, this Court would not override his opinion. In this case we think that the Judge directed himself very fully, carefully and correctly, and also that the evidence was ample to support the conclusion at which he arrived. We hold therefore that the conviction of the appellant upon the charge of manslaughter must stand.
Counsel for the appellant raised in the course of his argument one further point which was not formally raised in the grounds of appeal filed. He submitted as to the third count of the information that the appellant could not be charged under section 343 (1) (I:) of the Criminal Code as well as for manslaughter under section 325 because since the life has already passed he could not endanger it. It is difficult to follow this argument and we find no substance in the submission.
The appeal is dismissed.