Yejide Gbenga
Justice Ibironke Harrison of the Lagos High Court, sitting at Tafawa Balewa Square (TBS), yesterday granted bail to the Medical Director, of Excel Medical Centre, Dr Ferdinand Orji pending the determination of his appeal against his conviction.
Justice Adedayo Akintoye of the Lagos high court had in a charge delineated LD/8963C/2019 sentenced Dr Orji to one-year imprisonment for negligence, and causing grievous harm to his patient.
However, Dr Orji in an application filed by his Counsel, Chief Bolaji Ayorinde SAN prayed the court to admit him on bail pending the determination of his appeal challenging the judgement of the court.
Ruling on the application, Justice Harrison held that the grant of bail is at the discretion of the Court and should be exercised judiciously and judicially.
The court noted that for the application to succeed the applicant must show special circumstances by affidavit evidence.
The court in considering the health condition of the Defendant/Applicant held that Exhibits 1, 2 and 3 which are his Medical reports were obtained before his sentence.
The court also examined and considered the Medical Report of Nigerian Correctional Service dated the 21st day of February 2023 which was submitted to the Court.
Justice Harrison found that the Medical Report of Nigerian Correctional Service dated 21st of February, 2023 showed that the applicant is a known hypertensive patient and on daily medication with a restrictive diet.
However, the court noted that contrary to the deposition of the defendant/Amapplicant’s affidavit that he had a diagnosis of Adrenal Tumor, the Nigerian Correctional Service did not mention such, adding that the Medical Report of the Nigerian Correctional Service did not also state that the Defendant/Applicant’s health is complicated and they cannot manage it.
The Court held that the Applicant has failed to show medical exceptional circumstances and referred to the case law authorities.
On the issue of the sentence duration of 1 year, the Court considered the Defendant’s submission that the Court of Appeal has a heavy congestion of pending Appeals before, which are yet to be determined.
The court also noted that being an election year, there will be a congestion of the Court of Appeal with several election matters and the Defendant/Applicant may have served his 1-year sentence before the Appeal is heard and determined.
Consequently, the Court granted the Defendant/Applicant’s application for bail with conditions.
Dr Orji had in his appeal prayed the court to determine whether he could be convicted after, the lower court found him not guilty of having the intention to commit the offence in Count 1, (causing grievous harm to his patient).
The appellant averred that the trial judge has found that he (Appellant) did not have the mens rea or intention to commit the offence in Count 1, (causing grievous harm to his patient), erred in law when she failed to consider the existence of men’s rea and intention of the Appellant with regards committing the offences in Counts 2, 3, 4, and 6.
The appellant stated that the ingredients of the elements of a crime and offences charged must co-exist and must be proved beyond a reasonable doubt before a Defendant [Appellant] can be convicted of the offence.
The appellant stated that there was no evidence from the Prosecution to establish that the Defendant had the intention to cause harm or hurt PW10 by using PW1 and PW2 (untrained personnel) to manipulate PW10’s left leg thereby aggravating a simple fracture of the said left leg.
On the issue that the Appellant was negligent and reckless by applying fibreglass cast tightly on PW10’s left leg and causing severe pain and refusing to remove same when requested to do so, the Appellant contended that the trial Judge failed to avert her mind that the Appellant upon the complaint made on the 27th of July, 2018 by PW10 and PW3, of pain and discomfort at the left knee region, opened a rectangular window at the popliteal fossa aspect of the knee, over the area where the patient complained of, and this relieved the patient.
He stated that when PW10 was taken back to his Hospital following a complaint that “water was oozing out from the popliteal aspect of the knee where the window was cut”, the cast was halved and subsequently converted to a back slab to support the knee during the patient’s journey to the United States, adding that the patient and his mother (PW3 and PW10) slept in the Appellant’s Hospital till the 28th day of July 2018 without further complaints of excruciating pain or discomfort.
The appellant submitted that the trial judge failed to avert her mind and consider the evidence of PW7, the first Orthopedic Doctor who saw PW10 and his evidence of the 18th day of March 2022 where he stated that “he saw a half cast and could not ascertain how tight the cast was before removing the entire cast”. Thus, the cast was not tight, or tightness doubtful.
Consequently, the Appellant prayed the court to pronounce him not guilty of Counts 2, 3, 4 and 6 of the Amended Charges dated the 4th day of February 2022 and also set aside part of the Judgment delivered on the 20th day of January 2023 by Justice Adedayo Akintoye.
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