Wale Igbintade
Justice Ibironke Harrison of the Lagos High Court at the 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 Charge number: LD/8963C/2019m sentenced Dr. Orji to one year imprisonment for negligence, and causing grievous harm to his patient.
However, 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 granting of bail is at the discretion of the court which 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 exhibit 1, 2 and 3 which are his medical report were obtained before his sentence.
The court also examined and considered the Medical Report of Nigerian Correctional Service dated on February 21, 2023, which was submitted to the court.
Justice Harrison found that the Medical Report of Nigerian Correctional Service of February 21, 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/applicant’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 that they cannot manage it.
It held that the applicant has failed to show medical exceptional circumstances and referred to the case law authorities.
However, on the issue of the duration of sentence of one year, the court considered the defendant’s submission that the Court of Appeal has a heavy congestion of pending appeals before it, which are yet to be determined.
The court also noted that being an election year, there would be a congestion of the Court of Appeal with several election matters, and that the applicant may have served his one year sentence before the appeal is heard and determined.
Consequently, the court granted the 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 intention to commit the offence in Count 1 (causing grievous harm to his patient).
The appellant averred that the trial Judge, having found that he (appellant) did not have the intention to commit the offence in Count (causing grievous harm to his patient), erred in law when she failed to considered the existence of mens rea and intention of the appellant with regards to 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 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 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 left leg.
On the issue that the appellant was negligent and reckless by applying a fibre glass 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 July 27, 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 July 28, 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 March 18, 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 February 4, 2022, and also set aside part of the judgment delivered on January 20, 2023, by Justice Adedayo Akintoye.
