Tega Esabunor & Anor. V. Dr. Tunder Faweya & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
This is an appeal against the decision of Oyefesobi, J of the Lagos State High court, which was delivered on the 30th May 2001.
The facts of the case are straightforward and are ably set out in the 1st and 2nd Respondents’ brief of argument. I will do no more than to recount them briefly.
The 2nd Appellant herein is the mother of the 1st Appellant who was born on the 19th April 1997 at the Chevron Clinic, Lekki Peninsula, Lagos. On the 11th of May 1997, the Appellant was sick and was taken to that clinic, which is owned by the 2nd Respondent, for treatment. The 1st Respondent, a medical doctor attached to the clinic examined the 1st Appellant and found that he was suffering from severe infection which led to severe shortage of blood in his body. He was placed on antibiotics and by the morning of 12th May 1997 it was clear that the antibiotics were not working as the 1st Appellant was convulsing and could not breathe properly as such he was placed on oxygen therapy.
At this stage the medical personnel at the Chevron Clinic believed that without blood transfusion the 1st Appellant would die. The 1st Respondent informed the 2nd Appellant that the life of the 1st Appellant was in danger and only a blood transfusion could save his life. The 2nd Appellant refused to consent to the transfusion of blood on the ground that she was a Jehovah’s witness and blood transfusion was forbidden by her religion.
The 1st Respondent informed the Management of the 2nd Respondent of the development. The 2nd Respondent in turn reported the development to the police. The 3rd Respondent on behalf of the 4th Respondent applied for and obtained an order from the Magistrate’s Court presided over by the 5th Respondent, authorizing the medical authorities of the 2nd Respondent to do all and everything necessary for the protection of the life and health of the 1st Appellant.
The order of the Court was executed and the 1st Appellant’s condition improved so considerably that he was discharged a few days later.
By an application dated the 15th May 1977, the 2nd Appellant asked the 5th Respondent to set aside his order of 12th May 1997 on the ground that it was fraudulently obtained. This application was dismissed on the 21st May 1997 on the ground that the order having been complied with could no longer be set aside.
The Appellant’s application to the High Court of Lagos State for an order of certiorary, removing into the High Court the entire proceedings including the rulings/orders made on the 12th and 21st of May, 1997 by the 5th Respondent herein for the purpose of being quashed was refused and dismissed. Also dismissed by the lower Court was the 1st Appellant’s claim for Ten Million Naira (N10,000,000.00) damages against the Island 2nd Respondents for unlawfully injecting or transfusing blood into his body without his consent and/or the consent of the 2nd Appellant and Five Million Naira (N5,000,000.00) claim by the 2nd Appellant for denial of parental right.
It is against the aforementioned decision of the High Court, the Appellants have appealed to this Court. Their notice of appeal dated 20th August 2001 and filed on the 22nd August 2001 contains ten grounds of appeal. (The notice and grounds of appeal are pages 164-172 of the record of appeal).
In line with the relevant rules of this Court, the Appellants and the 1st and 2nd Respondents filed and exchanged briefs of argument. The 3rd, 4th and 5th Respondents did not file briefs of argument and so were not heard in argument when this appeal was heard.
The Appellants’ joint brief of argument is dated and filed on the 3rd of June 2003, while the 1st and 2nd Respondents’ joint brief of argument is dated 31st July 2003 and filed on the 1st of August 2003. The Appellants Reply brief is dated 18th September 2003 and filed on the 19 September 2003.
When the appeal came up for hearing on the 30th April 2008, learned counsel adopted parties’ respective briefs of argument.
Mr. Daniel N. Odibe, learned counsel for the Appellant, formulated four issues for the determination of this appeal at pages 2-3 of the Appellants brief of argument. These issues read as follows: –
“1. Whether the learned Judge failed to properly appreciate and consider all the grounds for the application for certiorari before him and the issues arising for determination there from.
- Whether the learned Judge was right in holding that the 5th Respondent was sitting as a juvenile Court and therefore had jurisdiction to entertain the matter before it.
- Whether the relief of certiorari sought by the Appellants in the instant case was proper.
- Whether the learned Judge was right to have dismissed the Appellants’ claims for damages.”
Ladipo Soetan, Esq. of counsel for the 1st and 2nd Respondents, in his brief argued the 1st and 2nd Respondents’ case under two issues, namely: –
- Whether in the circumstances of the suit the Appellants are entitled to an order of certiorari.
- Whether the Appellants are entitled to damages.
The 1st and 2nd Respondents’ issues for determination of this appeal are similar to the Appellants’ 3rd and 4th issues. They are accordingly subsumed into the issues formulated by the Appellants. Both parties have extensively proffered argument in support of their respective issues. However, after having read through the parties respective argument. I am of the firm view that the only issue calling for the determination of this appeal is whether the lower Court was right when it refused the Appellants’ application for an order of certiorari which sought to quash the entire proceedings including the rulings and orders made on the 12th and 21st of May 1997 in Suit No. M/73/97 (Commissioner of Police v. Rita Esabunor) by the 5th Respondent, a Chief magistrate, sitting at the Chief Magistrates Court No. 1, Igbosere Road, Lagos.
Mr. D. N. Odibe, learned counsel for the Appellants, who sealed the Appellants’ brief of argument and also argued the appeal, in his argument, submitted that the issues submitted before the lower Court for consideration were never considered. According to the learned counsel if these issues were considered, the lower Court would have reached a different conclusion. Learned counsel then set out the issues which were raised, but were not considered by the lower Court as follows: –
“1. That the case before the 5th Respondent was not initiated by due process of law.
- That the 5th Respondent lacked jurisdiction because the issues involved were Fundamental Human Rights Issues.
- That the 5th Respondent having held that it lacked jurisdiction proceeded wrongfully to assume jurisdiction on the basis of urgency.
- That the 5th Respondent held that it acted under inherent jurisdiction of the court to prevent the commission of offence whereas the Magistrate Court has no such inherent jurisdiction or indeed any inherent jurisdiction at all.”
Counsel then contended that the High Court was bound to consider all the issues raised before it, as failure to do so is patently fatal to its decision.
In support, learned counsel cited the following authorities:
Ifeanyi Chukwu Osondu Ltd v. Soleh Boneh Ltd (2000) 5 NWLR (Pt.656) 322 at 351 G; Odunayo v. The State (1972) 8-9 SC 290 at 297; University of Agriculture, Makurdi v. Jack (2000) 11 NWLR (679) 658 at 675 B; Naili v. Akinsumade (2000) 8 NWLR (Pt.668) 293 at 348.
Learned counsel in a further argument, submitted that the court below having failed in its duty to consider all these issues, this Court can proceed to consider and pronounce on those issues. In aid counsel cited APP v. Ogunsola (2002) 5 NWLR (Pt. 761) 484 at 504 B.
Finally on this segment of the argument, learned counsel submitted that the institution of an action by an “originating motion exparte” is a procedure unknown to law. In aid the authority in Uwah Printers v. Emmanuel Umoren was cited.
On whether the learned trial Judge was right when he said that when a Chief Magistrate presides over a case of a child, he is presumed to be presiding over a juvenile Court, learned counsel submitted that the mere fact that a magistrate presides over a matter that involves a child does not automatically transform his Court into a juvenile court. According to the learned counsel, the constitution and nature of a Court is not regulated or determine by presumption but by statute. In aid learned counsel cited Ogunmokun v. Military Administrator, Osun State (1999) 3 NWLR (Pt.594) 261 at 278 paragraphs D-E: African Newspapers v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137 at 160 paragraph A.
Finally on this aspect of the submission, learned counsel submitted that even if the 5th Respondent sat as a juvenile Judge, the orders made by him were in excess of the jurisdiction of a juvenile court.
On whether the relief of certiorary sought by the Appellant the instant case was proper, learned counsel for the Appellants submitted that an order of certiorary could still lie even in a case where the order sought to be quashed has already been executed.
In aid he cited Ezenwa v. Bestway Electronic Manufacturing Company Ltd (1999) 8 NWLR (Pt. 613) 61; Michael Ezeani v. Cyprian v. Ekwealu & Ors (1961) ANLR 428.
In response, Mr. Ladipo Soetan, learned counsel for the 1st and 2nd Respondents submitted that the 5th Respondent was right and well within his jurisdiction as Chief Magistrate in making the order directing the Medical authorities of the 2nd Respondent to do all and anything necessary for the protection of the life and health of the 1st Appellant. Learned counsel further submitted that the lower Court was right in holding as it did that the 5th Respondent had jurisdiction to make the order.
On whether the lower Court had to consider each issues or point raised by the parties before it, learned counsel submitted that writing a judgment is an art as such each judge is entitled to follow his own style. Learned counsel in a further argument submitted that the conclusion in a judgment is more important than the procedure. Where some errors are made and the Judge comes to a right conclusion, such judgment should not be disturbed on appeal. In aid learned counsel cited Ogolo v. Ogolo (1997) 7 NWLR (Pt.512) 310; Angbaza v. Sule (1996) 7 NWLR (Pt. 461) 479; Ukciuanya v. Uchendu (1950) 13 WACA 45; Akingboye v. Salisu (1999) 7 NWLR (Pt.611) 434 at 453.
Finally, learned counsel submitted that the lower Court is presumed to have considered all the issues raised in the parties written addresses and this Court is urged not to disturb the findings and conclusions of the lower Court.
On whether actions cannot be instituted by an originating application made ex-parte in the Magistrate’s Court in Lagos State, My. Soetan, Learned counsel for the 1st and 2nd Respondents submitted that an application for leave to apply for certiorary is required by law to be made ex-parte as is an application for leave to enforce an applicant’s fundamental human rights. Learned counsel referred this Court to Order 2 Rule 2 (1) of the Magistrate’s Court Rules of Lagos State and submitted that although it is not specifically provided as to the nature of the application that can be utilized to commence proceedings at the Magistrate’s Court, under the Nigerian law it is settled that in matters of grave urgency (as in this case) an application may be made ex-parte, Learned counsel submitted that none of the orders of the 5th Respondent sought to be quashed was obtained by fraud and so there was no basis seeking for an order to quash them.
Finally learned counsel urged this Court to hold that the statement made by the lower Court that the 5th Respondent when presiding over the case of a child is presumed to be presiding over a juvenile court was an obiter dictum and that the Appellants arc not entitled to cost. Learned counsel cited Ukpor v. Adede (2001) 9 NWLR (Pt. 717) 203; UBA v. Onagoruwa (1996) 3 NWLR CPt.439) 7000 at 709; J. C. Ltd v. Ezenwa (1996) 4 NWLR (Pt.443) 391; Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001) 7 NWLR (Pt.711) 206 to buttress his submission.
Black’s Law Dictionary 610 Edition defines certiorary as follows:-
“A writ of common law origin issued by a superior to inferior court requiring the latter to produce a certified record of a particular case tried therein. The writ is issued in order that the court issuing the writ may inspect the proceedings and determine whether there have been irregularities.”
Certiorary is prerogative writ of common law origin available to the High Court in its exercise of its supervisory control over inferior tribunal or courts to ensure that these tribunals or courts do not exceed their Jurisdiction or do not commit any irregularities which will render their decisions bad. When such writ is issued and the proceedings of the inferior tribunals produced for inspection, the High Court has power to quash such proceedings where due cause is disclosed for doing so.
Sec Nwaoboshi v. MILAD, Delta State (2003) 11 NWLR (Pt.83) 305.
In the light of the foregoing, were the proceedings of the Chief Magistrate Court embarked upon without jurisdiction, or even if the Chief Magistrate had jurisdiction were there irregularities committed on the face of the proceedings.
The parties before the Chief Magistrate’s Court were the Commissioner of Police v. Rita Esabunor. The process that initiated that proceeding is titled “Originating Motion Ex Parte” and it was brought under Section 27 (1) and 30 of the Children and Young Persons Law Cap 25 of Lagos State.
The Chief Magistrate, 5th Respondent herein, in his ruling said:-
“If Mrs. Rita Esabunor is allowed to prevent her child from being transfused, an offence under section 339 or section 341 of the Criminal code would have been committed. If the child eventually dies, the said Mrs. Rita Esabunor would have committed the offence of murder as defined by S. 311 of the Criminal Code.”
From the proceedings at the Chief Magistrate’s Court, it is very clear that the intention of the Commissioner of Police was solely to prevent commission of crime. Section 214 (2) (b) of the 1999 Constitution of the Federal Republic of Nigeria provides that the Nigeria Police shall have such powers and duties as may be conferred upon them by law.
By Section 4 of the Police Act, 2004 the police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of property and the enforcement of all laws and regulations with which they are directly in charge.
Section 33(1) of the same Constitution provides that every person has a right to life and no one shall be deprived intentionally of his life, safe in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty in Nigeria.
In course of discharging their responsibility the police are permitted to take whatever steps that are desirable to achieve their goal. In the instant case their resort to the Court of law was the most desirable way to preserve the law and order.
The Code of Ethics of the Medical Profession, otherwise known as Published Code of Ethics, enjoins a doctor not to allow anything including religion to intervene between him and his patient and that he must always take measures that lead to the preservation of life. This code of ethics places a great burden on medical practitioners in such a way that they cannot succeed to the wish of a citizen who will allow a child to die on account of religion belief. This is the basis upon which the 1st and 2nd Respondents reported the matter to the police.
The procedure adopted at the Chief Magistrate Court may be inelegant, but it was so done by the police in order to prevent a commission of crime. It’s a procedure that is based on criminal law and the essence was to invoke the jurisdiction of the Court. In the circumstance of the case the Court could have even acted on verbal application to prevent what was obviously a crime that was to be committed. For the essence of law is to preserve life and property and create environment for human beings to live a contented and dignified life.
Although the 2nd Appellant had absolute right to choose a course for her life, she has not got that corresponding right to determine whether her son should live or die on account of her religious belief.
In Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (Supra) at pages 244-245 paragraphs F-B, the Supreme Court, per Ayoola, JSC said:-
“The right to freedom of thought, conscience or religion implies a right not to be prevented, without lawful justification from choosing the course of one’s life, fashioned on what one believes in, and a right not to be coerced into acting contrary to one’s religious belief.
The limit of these freedoms in all cases are where they impinge on the right of others or where they put the welfare of society or public health in jeopardy. The sum total of the right of privacy and of freedom of thought conscience or religion which an individual has, put in a nutshell, is that an individual should be left alone to choose a course for his life, unless a clear and compelling overriding state interest justifies the contrary…
It a decision to overring the decision of an (sic) competent patient not to submit to blood transfusion or medical treatment on religious grounds, is to be taken on the grounds of public interest or recognized interest of others, such as dependent, minor children, it is to be taken by the courts.” (Underlining is mine)
In the instant appeal, the 1st and 2nd Respondents acted upon an order of Court duly procured by the Commissioner of Police on behalf of the State. The authority to withhold consent to the blood transfusion was therefore overridden by the Court order.
The law is trite that a Court has a duty to make findings on all issues placed before it and limit itself thereto. See R. E. A. N. PLC v. Amunmu (2003) 6 NWLR (pt.815) 52; Udengwu v. Uzuegbu (2003) 13 NWLR (pt.836) 136.
However, where the determination of an issue in favour of a party who raised it will not affect the result of an appeal, such issue is of no value and the Court needs not consider it. See Okereke v. Nwankwo (2003) 9 NWLR (Pt.826) 592.
In the instant appeal, the issues raised at the Court below were irrelevant and the lower Court’s failure to consider them is not fatal to the decision of the lower Court.
From the history of this case, I entertain no doubt in my mind that the lower Court was right when it refused to grant the application for an order of certiorary. The 2nd Appellant’s religious belief had no bearing in the wanton dissipation of the 1st Appellant’s life. Clearly the 1st Appellant being an infant was incapable of giving consent to die on account of the religious belief of the 2nd Appellant. The 2nd Appellant’s desire to sacrifice the 1st Appellant’s life is an illegal and despicable act, which must be condemned in the strongest terms.
I find nothing wrong with the processes at the Chief Magistrate’s Court since they conveyed to the Court, the notice of a crime that was about to be committed. The purpose for which they were filed was accomplished. They were processes in criminal law and clearly, the end justified the means. The blood transfusion was carried out and the blood so transfused cannot be extracted from the child. Any further action in respect of this matter will only amount to an academic exercise and this Court has no business embarking on such exercise.
Having found that there was no basis upon which the lower Court could have granted the relief of certiorary, it follows that the dismissed of the claim for damages by the lower Court was proper. Damages are not awarded as a matter of course. Award of damages must follow events.
There was no events before the lower Court that would have attracted damages. No proof was laid for such a claim.
On the whole this appeal lacks merit and same shall be and it is hereby dismissed.
I make no order as to cost.
Other Citations: (2008)LCN/3060(CA)
