Tega Esabunor & Anor V. Dr. Tunde Faweya & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
OLABODE RHODES-VIVOUR, J.S.C.
The 2nd appellant is the mother of the 1st appellant. She gave birth to him on April 19, 1997 at the Chevron Clinic, Lekki Peninsula in Lagos. Within a month of his birth (i.e. on 11 May, 1997) he fell gravely ill. His mother, the 2nd appellant, took him back to the Chevron Clinic on 11 May, 1997 for urgent treatment. It was the 1st respondent who treated the 1st appellant.
He found that the 1st appellant urgently needed blood transfusion.
The 2nd respondent and her husband made it abundantly clear to the 1st respondent that on no account should their child (the 1st appellant) be given blood transfusion.
Their reason being that there were several hazards that follows blood transfusion such as contracting Aids, Hepatitis etc and that as members of the Jehovah witness sect, blood transfusion was forbidden by their Religion.
Dr Tunde Faweya (the 1st respondent) remained unyielding.
The next day, the learned counsel for the Commissioner of Police, Lagos State moved an Originating Motion Exparte before the 5th respondent. The motion was brought under
Section 27 (1) and (30) of the Children and Young Person’s Law Cap 25 of Lagos State.
The relief sought was:
“that the medical authorities of the Clinic of Chevron Nigeria Limited Lekki Peninsula Lagos be allowed and are hereby permitted to do all and anything necessary for the protection of the life and health of the child TEGA ESABUNOR and for such further order or orders as the Court may deem fit to make in the circumstances.”
After hearing counsel the Chief Magistrate delivered a Ruling. Relevant extracts from that Ruling reads:
Under the inherent jurisdiction of this Court to prevent the Commission of Offences, I hereby grant the prayer sought in this application as follows:
“The medical authorities of the Clinic of Chevron Nigeria Limited Lekki Peninsula Lagos are hereby authorised to do all and anything necessary for the protection of the life and health of the child TEGA ESABUNOR.
It is further ordered that the said medical authorities do revert to this Court to report their compliance with this order which shall forthwith be served on them.”
This order was made on 12 May, 1997 a day after the 1st appellant was taken to the Chevron Clinic for treatment.
On receipt of the Order of the Chief Magistrate blood transfusion was administered on the 1st appellant by the 1st respondent on the same day. (i.e. 12 May, 1997). The 1st appellant got well and was discharged. His mother took him home.
On 15 May, 1997 the 2nd appellant filed an application on notice wherein she sought for the setting aside of the order made on 12 May, 1997. The application was unsuccessful. It was dismissed on 21 May, 1997.
The appellants were dissatisfied with the proceedings before the Chief Magistrate, so they approached the High Court for:
(1) An order of Certiorari removing into this Honourable Court the entire proceedings including the rulings/orders made on 12 and 21 May, 1997 in Suit No. M/75/97 Commissioner of Police v Rita Esabunor at the Chief Magistrate’s Court Lagos Magisterial District, presided over by the 5th respondent herein, Chief Magistrate M. Olokoba for the purpose of being quashed.
(2) N10 million (Ten million Naira) damages against the respondent jointly and severally for unlawfully injecting or transfusing blood into the body of the 1st applicant without the consent of himself and of the 2nd applicant.
(3) N5 million (Five million Naira) damages against the 1st and 2nd respondents for unlawfully preventing the 2nd applicant from having access to her son. The 1st applicant from 12 May, 1997 to 15 May 1997, and also for preventing her from exercising her parental rights of care over the 1st applicant.
The parties filed affidavit and counter-affidavit. The learned trial judge considered them, and listened to closing speeches of counsel and in a considered Ruling delivered on 28 May, 2001 the learned trial judge Oyefesobi J, of a Lagos High Court reasoned and concluded this:
“Finally, can certiorari issue in this case. The blood transfusion has taken place. Can it be undone? I answer in the negative. The Court does not make an order in vain. The application is refused. The claims are dismissed.”
The appellants’ were not satisfied with the Ruling of the High Court. They filed an appeal. It was heard by the Court of Appeal, Lagos Division. That Court affirmed the decision of the High Court. It reasoned as follows:
Having found that there was no basis upon which the lower Court could have granted the relief of certiorari, it follows that the dismissal 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.”
And concluded:
“On the whole this appeal lacks merit and same shall be and it is hereby dismissed.
I make no order as to costs.”
This appeal is against that judgment.
Briefs were filed and exchanged by counsel. Learned counsel for the appellants’ Mr A. Adenipekun SAN filed the appellants’ brief on 10 June 2009. Reply briefs to the 1st and 2nd respondents’ brief on 14 March 2018, deemed duly filed and served on 11 December 2018, the 3rd and 4th respondents’ brief filed on 14 March 2018, deemed duly filed and served on 11 December 2018, to the 5th respondent filed on 16 August 2013 deemed duly filed and served on 11 December 2018.
Learned counsel for the 1st and 2nd respondents’ Mr. L. Soetan filed his clients brief on 8 December 2009. Learned counsel for the 3rd and 4th respondents’, Mr F. Attah filed the 3rd and 4th respondents’ brief on 12 May 2017 but deemed duly filed and served on 11 December 2018.
Learned counsel for the 5th respondent, T. Bashorun filed the 5th respondent’s brief on 27 July 2011 but deemed duly filed and served on 11 December 2018.
Learned counsel for the appellant formulated seven issues for determination of this appeal.
ISSUE 1
Whether the learned Justices of the Court of Appeal misdirected themselves when they abandoned the issue of jurisdiction of the Chief Magistrate Court which they earlier set out to determine.
ISSUE 2
Whether the Court of Appeal was right in affirming the decision of the High Court which refused to quash the Orders and the proceedings before the 5th respondent for lack of jurisdiction.
ISSUE3
Whether the Court of Appeal was right when it failed to hold that the proceedings before the learned Chief Magistrate Court were conducted in breach of the appellants’ right to fair hearing.
ISSUE 4
Whether the Court of Appeal was correct in holdinG that the 2nd appellants’ refusal to give consent to blood transfusion amounted to an attempt to commit a crime or to allow the 1st appellant to die.
ISSUE 5
Whether the learned Justices’ of the Court of Appeal were correct in holding that the Order of the 5th respondent had overridden the 2nd appellant’s right to give consent to choice of treatment for her infant.
ISSUE 6
Whether the Court of Appeal was wrong when it held that because the transfused blood cannot be extracted from the 1st appellant, the matter has become academic.
ISSUE 7
Whether the Court of Appeal was in error when it held that the appellants’ are not entitled to damages.
Learned counsel for the 1st and 2nd respondents’ formulated a sole issue for determination. It reads:
ISSUE 1
Whether the Court of Appeal was right in affirming the refusal of the High Court to grant the certiorari and quash the proceedings before the 5th respondent.
Learned counsel for the 3rd and 4th respondents formulated two issues for determination. They are:
ISSUE 1
Whether having regards to the fact that the order of the Chief Magistrate Court presided over by the
5th respondent had been carried out and completed; a Writ of Certiorari can be issued to quash the order.
ISSUE 2
Whether the appellants’ have met the conditions which will enable this Honourable Court set aside the concurrent findings of the Court below and the High Court of Lagos State.
Learned counsel for the 5th respondent formulated three issues for determination.
ISSUE 1
Whether or not the 5th respondent was right in assuming jurisdiction over the exparte application in the circumstances of this case.
ISSUE 2
Whether or not the lower Court was right giving priority of protection to the right of a child to life as against the assertion of the objection of the parent to the preservation of that life on account of their religion conscience.
ISSUE 3
In the light of the above whether the lower Court was right in affirming the High Court’s decision refusing damages.
At the hearing of the appeal on 11 December 2018; learned counsel for the appellants’ Mr Adenipekun SAN adopted the appellants’ brief filed on 10 June 2009. Reply to 1st and 2nd respondents’ brief filed on 14 March 2018, but deemed duly filed and served on 11 December 2018. Reply to the 3rd and 4th respondents’ brief filed on 14 March 2018, but deemed duly filed and served on 11 December, 2018.
Reply to 5th respondents brief filed on 16 August, 2013, but deemed duly filed and served on 11 December, 2018.
He observed that the appeal is on jurisdiction and Constitutional matters. He further observed that it is not a crime for a patient to decline treatment.
He urged the Court to allow the appeal.
Learned counsel for the 1st and 2nd respondents’ Mr L. Soetan adopted the 1st and 2nd respondents’ brief filed on 8 December 2009, observing that this matter has been on for twenty years.
He urged the Court to dismiss the appeal.
Learned counsel for the 3rd and 4th respondents’ Mr F. Attah, adopted the 3rd and 4th respondents’ brief filed on 17 May, 2017, but deemed duly filed and served on 11 December 2018.
In amplification of his brief he observed that there was no appeal from Chief Magistrate to High Court and that certiorari was refused because transfusion had been done.
He urged the Court to dismiss the appeal.
Learned counsel for the 5th respondent, Toyin Bashorun adopted the 5th respondents’ brief filed on 27 July 2011, but deemed duly filed and served on 11 December, 2018.
She urged the Court to dismiss the appeal.
The issues for determination are all the issues formulated by the appellants’ counsel.
(1) Whether the learned Justices of the Court of Appeal misdirected themselves when they abandoned the issue of jurisdiction of the Chief Magistrate Court which they earlier set out to determine.
(2) Whether the Court of Appeal was right in affirming the decision of the High Court which refused to quash the Orders and the proceedings before the 5th respondent for lack of jurisdiction.
(3) Whether the Court of Appeal was right when it failed to hold that the proceedings before the learned Chief Magistrate Court were conducted in breach of the appellants’ right to fair hearing.
(4) Whether the Court of Appeal was correct in holding that the 2nd Appellants’ refusal to give consent to blood transfusion amounted to an attempt to commit a crime or to allow the 1st Appellant to die.
(5) Whether the learned Justices’ of the Court of Appeal were correct in holding that the Order of the 5th respondent had overridden the 2nd Appellants’ right to give consent to choice of treatment for her infant.
(6) Whether the Court of Appeal was wrong when it held that because the transfused blood cannot be extracted from the 1st Appellant, the matter has become academic.
(7) Whether the Court of Appeal was in error when it held that the Appellants’ are not entitled to damages.
Issues 1, 2 and 3 shall be taken together, while Issues 4, 5, 6 and 7 shall also be taken together thereafter.
ISSUES 1, 2 AND 3.
Learned counsel for the appellants’ observed that rather than determine the jurisdiction of the Chief Magistrate, the Court of Appeal went on to determine the duty of the Police to prevent crime. He argued that if the Court of Appeal had considered the issues of jurisdiction of the Chief Magistrate, it would have found that the Chief Magistrate’s Court exceeded its jurisdiction and that there were fundamental errors of law on the face of the record of the Magistrate Court on account of which the Court of Appeal would have set aside the decision of the High Court and quashed the proceedings and Order of the Magistrate Court contending that what the Court of Appeal did amounted to misdirection. He placed reliance on Ezenwa v Best way Electronic Manufacturing Co. Ltd (1999) 8 NWLR Pt. 613 p.61.
He urged the Court to reverse the decision of the Court of Appeal on account of the misdirection and resolve the issue in favour of the appellants’.
On issue 2 learned counsel for the appellants’ submitted that the Court of Appeal was wrong in upholding the High Court’s refusal to quash the Orders and proceedings of the 5th respondent for want of jurisdiction contending that the Chief Magistrate does not have jurisdiction, and there are errors on the face of the record. Reliance was placed on Section 6 (b) of Cap M 1 Laws of Lagos State, 2003.
Ogunmokun v Military Administrator, Osun State (1999) 3 NWLR (Pt.594) p.261.
He submitted that the Chief Magistrate lack the jurisdiction to entertain the matter and make the order he made.
He urged the Court to resolve the issue in favour of the appellants’.
On Issue 3 learned counsel for the appellants’ observed that the appellants’ were not heard before the Originating Motion Expare was heard and the order procured. He submitted that in view of the breach of the appellants’ right to be heard the proceedings are null and void. Reliance was placed on Adigun v AG Oyo State (1987) 11 NWLR (Pt.53) p.678; Sabru v Para-Koyi (2001) 13 NWLR (Pt.697) p.364.
He urged the Court to resolve the issue in favour of the appellants’.
Learned counsel for the 1st and 2nd respondents observed that the Court of Appeal examined the proceedings that had been removed to the High Court for the purposes of being quashed and found that the High Court was right to have held that the 5th respondent did not act in want of jurisdiction.
On Issue 2 learned counsel submitted that the 5th respondent made the order in the exercise of his Court’s inherent jurisdiction to prevent the commission of an offence. Reliance was placed on Section 281 of the Criminal Code Cap C.38 LFN 2004, Section 53 (i) of the Criminal Procedure Act Cap 41 LFN 2004, contending that the Court is required to give effect to these provisions.
Learned counsel submitted that the 5th respondent had inherent jurisdiction to prevent the commission of offences and that there was enough evidence before him to act, contending that the exercise of discretion by the 5th respondent was correct.
On Issue 3, learned counsel submitted that the law gave the 2nd appellant an opportunity within a short time to have, the order made reviewed and so the appellants’ were not denied fair hearing.
Learned counsel for the 3rd and 4th respondents’ observed that the order sought to be quashed has been carried out in that the 1st appellant has been transfused with blood by the 1st respondent in compliance with the orders of the 5th respondent, contending that the issuance of the Writ of Certiorari will be fruitless and futile since the order of the 5th respondent has been completed irreversibly.
Concluding he submitted that there is no live issue in this appeal. The appeal should remain dead and buried.
Learned counsel for the 5th respondent submitted that the Court of Appeal did not abandon the issue of jurisdiction, contending that they made a positive finding. Reliance was made to page 319 of the Record of Appeal.
Ojo v UBTHMS (2007) 47 WRN p.663.
She further submitted the Justices’ of the Court of Appeal did not misdirect themselves, hence no miscarriage of justice was occasioned, contending that issue 1 should be discountenanced.
On Issue 2 she submitted that the Chief Magistrate was empowered to prevent the Commission of a Crime. Reliance was made to Section 18 of the Magistrate Courts Law Cap 127 Laws of Lagos State of Nigeria 1994.
She further submitted that the parties were properly before the 5th respondent and so the issue of jurisdiction is a misconception and a misstatement of the law and should be discountenanced.
On Issue 3 learned counsel observed that the argument of the appellants’ on the principle of audi alteram partem was misconceived as her civil right and obligation had not come up for determination, further observing that what was at play was the investigation of probable violation of the civil right of the child in respect of which the 2nd appellant was a suspect.
Concluding she submitted that the 2nd appellant was not denied fair hearing.
Jurisdiction is a threshold matter. It is fundamental to adjudication and it is usually conferred on the Court by the Constitution or Statute. It is the foundation on which the Court exercise judicial powers. SeeEgunjobi v FRN (2012) 12SC (Pt.iv) p.148. National Union of Road Transport Workers & Anor v Road Transport Employers Asociation of Nigeria & 5 Ors (2012) 1SC (Pt.ii) p.119.
Jurisdiction is so important in that it can be raised at any stage of proceedings, even on appeal and in the Supreme Court for the first time.
Bronik Motors Ltd & Anor v WEMA Bank Ltd (1983) 1SCNLR p.296.
In determining jurisdiction it is only the plaintiffs claim that is considered.
Tukur v Govt of Gongola State (1989) 4NWLR (Pt.117) p.17
Obiuweubi v CBN (2011)ALL FWLR (Pt.321 p.208.
Absence of jurisdiction renders the entire proceedings a nullity no matter how well it was conducted and decided.
Now, all Courts, by the fact that they are Courts have inherent jurisdiction. This is a jurisdiction that is necessary for the proper and complete administration of justice e.g. Courts have inherent power/jurisdiction to punish for contempt.
Inherent jurisdiction or powers are not given to the Courts by the Constitution or Legislation.
They are those powers that are necessary for the administration of justice in the Court. See Ajayi v Omorogbe (1993) 6 NWLR (Pt.301) p.512
Did the Court of Appeal abandon the issue of jurisdiction of the Chief Magistrate?
It is very well settled that the Supreme Court can consider issue which the Court of Appeal failed to consider. That is to say this Court can take up and decide an issue raised before the Court of Appeal but which was not considered by that Court. See Agbo v State (2006) 6NWLR (Pt.977) 545, Ukwunnenyi v State (1989) 4 NWLR (Pt.114) p.131. Katto v CBN (1999) 6 NWLR (Pt.607) p.390
Would that be necessary?
On page 315 of the Record of Appeal the Court of Appeal said:
“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
And in answer to the above the Court of Appeal said on page 319 of the Record of Appeal:
“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 justifies the means.
The Court of Appeal in my view found that there was no basis upon which the High Court could have granted the relief of certiorari, after finding that there were no errors on the face of the Record of the Chief Magistrate’s Court proceedings.
A decision of a Court on the issue of jurisdiction may not have the word jurisdiction mentioned.
Once the reasoning and conclusion of the decision points unequivocally to the issue of jurisdiction as in the portions of the judgment of the Court of Appeal reproduced above, it is a decision on jurisdiction.
The Justices’ of the Court of Appeal did not abandon the issue of jurisdiction of the Chief Magistrate’s Court. They made a positive finding that the 5th respondent had jurisdiction over the matter.
It would not be necessary for the Court, in view of my findings to consider the issue of jurisdiction of the Chief Magistrate as this was addressed by the Court of Appeal. It was not abandoned.
Whether what the Court of Appeal did amounted to misdirection?
There is said to be a misdirection if the judges’ of the Court of Appeal misdirected themselves on the issues or inadequately summarizes the evidence incorrectly or makes a mistake of law, but once there is some evidence to justify a finding there is no misdirection. See Okotie-Eboh v Manager & Ors (2004) 18 NWLR (Pt.905) p.242. Okonkwo & Anor v Udoh (1997) 9NWLR (Pt.519) p.16 Sosanya v Onadeko & Ors (2005) 8 NWLR (Pt.926) p.185.
The issue before the Court of Appeal was whether that Court misdirected itself when it is alleged by the appellants’ that they abandoned the issue of jurisdiction of the Magistrate Court?
The Court of Appeal addressed the issue comprehensively, summarising the evidence correctly and came to the correct conclusion on the issue of jurisdiction of the Magistrate’s Court. There was ample evidence to justify the finding by the Court of Appeal.
I am satisfied that the issue of jurisdiction of the Magistrate’s Court was not abandoned by the Court of Appeal. It was very well addressed, and so what the Court of Appeal did, does not amount to misdirection.
On 11 May, 1997 the 1st appellant was rushed to the Chevron Clinic gravely ill, by his mother, the 2nd appellant.
The 1st respondent, Dr. T. Faweya began treatment. He administered antibiotics on the patient, but in the morning of 12 May 1997 he found that there was no improvement. He decided that the patient needed blood. The 2nd appellant bluntly refused. He contacted the 4th respondent who filed an action before the 5th Respondent under Section 27 (1) and 30 of the Children and Young Persons Law, Cap 25 Laws of Lagos State, the 4th respondent was the plaintiff and the 2nd respondent was the defendant. The relief sought was:
“That the medical authorities of the Clinic of Chevron Nigeria Limited Lekki Peninsula Lagos be allowed and are hereby permitted to do all and anything necessary for the protection of the life and health of the child Tega Esabunor and for such further order or orders as the Court may deem fit to make in the circumstances.”
In a Ruling the 5th respondent reasoned as follows:
“If Mrs Rita Esabunor is allowed to prevent her child being transfused an offence under Section 339 or 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 Section 311 of the Criminal Code.
And ordered as follows:
“Under the inherent jurisdiction of this Court to prevent the Commission of offences. I hereby grant the prayer sought in this application as follows;
The medical authorities of the clinic of Chevron Nigeria Limited Lekki peninsula Lagos, are hereby authorised to do all and anything necessary for protection of the life and health of the child Tega Esabunor.
It is further ordered that the said medical authorities do revert to this Court to report their compliance with this order which shall forthwith be served on them”
Does the 5th respondent have jurisdiction to preside as he did and make the orders above?
The Court of Appeal said:
The procedure adopted at the Chief Magistrate’s 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.”
Section 214 (2)(b) of the Constitution provides that the Nigeria Police shall have such powers and duties as may be conferred upon them by law.
Section 4 of the Police Act, 2004 states that the Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, etc while Section 33 of the Constitution provides that every person has a right to life and no one shall be deprived intentionally of his life except in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty.
After examining the proceedings at the Chief Magistrate’s Court, it is so obvious that the intention of the Commissioner of Police was to prevent the commission of a Criminal Offence. When such an action is brought before a Chief Magistrate he has inherent jurisdiction to prevent the commission of a criminal offence.
The 5th respondent in the circumstances has jurisdiction to preside as he did and make the orders he made. The High Court was correct not to quash those orders and the Court of Appeal was right in affirming the decision of the High Court.
Was there lack of fair hearing?
Natural Justice demands that a party must be heard before the case against him is determined. This is what fair hearing entails and it is enshrined in Section 36 of the Constitution . SeeAkande v State (1988) 3 NWLR (Pt.85) p.681. F.C.S.C. v Laoye (1989) 2NWLR (Pt.106) p.652
Was the 2nd respondent denied fair hearing? The Orders made by the Chief Magistrate on 12 May 1997 were interim orders made exparte due to the urgency of the matter.
After the order was served on the 2nd appellant she filed an application before the 5th respondent for the following orders:
(a) Order setting aside the Order of this Court made on 12 May 1997 on the ground that the order was fraudulently obtained.
(b) An order that this suit be dismissed as the Honourable Court has no jurisdiction to entertain same…”
Affidavits were filed for and against the application. After an inter partes hearing the 5th respondent delivered a considered Ruling on 21 May, 1997, the concluding part reads:
“The application to set aside the ruling and orders made on 12 May 1997 is therefore dismissed. The Order made against the Medical authorities of Chevron Clinic, dated 12 May, 1997 having been carried out is now discharged..
My lords, the matter was not a civil matter in which case she would have been put on notice. The purpose of taking her to Court was to stop her from committing an offence/crime. Her civil rights and obligations (right to fair hearing) would come up only when she is charged to Court for an offence. It is only then that she is entitled to a fair hearing and not before or at an interim stage or when still in the investigation stage and not charged with an offence.
In the circumstances, the 2nd appellant was not denied fair hearing. That she was denied fair hearing is misconceived.
ISSUES 4, 5, 6 AND 7
On issue 4 learned counsel for the appellant observed that the different opinion as to method of treatment held by the 2nd appellant, cannot amount to commission of crime or an attempt to commit one. He submitted that the right to give or refuse consent to medical treatment has been recognized worldwide as an inalienable right. Reliance was placed on M.D.P.D.T. v. Okonkwo (2001) 7 NWLR (Pt.711) p.206.
He submitted that the holding of the Court of Appeal that choice of medical treatment amounts to an attempt to commit crime should not be allowed to stand.
He further submitted that consent of the patient is mandatory before treatment can be embarked upon.
He urged the Court to resolve this issue in favour of the appellants’.
Learned counsel for the 1st and 2nd respondents’ submitted that the 4th respondent obtained a valid Court order for treatment to be administered on the 1st appellant. Reliance was placed on Disciplinary Tribunal v Okonkwo (2001) 7 NWLR (Pt.711) p.206.
He urged the Court to reject the appellants’ argument and follow the principle enunciated inDisciplinary Tribunal v Okonkwo (supra).
Learned counsel for the 3rd and 4th respondents’ observed that this appeal is dead and buried, submitting that Courts do not issue orders to restrain a completed act.
Reliance was placed on A.G. Abia State v A.G. Federation (2006) 16 NWLR (Pt.1005) p.265. Soludo v Osigbo (2009) 18 NWLR (Pt.1173) p.290.
He urged the Court to refuse this appeal.
Learned counsel for the 5th respondent submitted that where the Court is confronted with having to balance the right of a child to life against the right of his parent to veto such right in vindication of their religious conscience the overriding consideration should be what is the best interest of the child. Reliance was placed on Section 45(1)(b) of the Constitution.
Learned counsel further submitted that a child is incapable of exercising this right to life and privacy personally, hence the state intervenes through Section 339 and Section 341 of the Criminal Code to protect the vulnerable person from the abuse of its rights by those in loco parentis over them. Learned counsel urged this Court to dismiss the appeal.
The 1st appellant, a child of one month old was rushed to the Chevron Clinic by his mother, the 2nd appellant.
Dr Faweya, the 1st respondent, examined him and found that the child was suffering from severe infection and anemia (lack of blood). Antibiotics were administered on the child to help fight the infection. In the morning of the next day, Dr Faweya observed that the child was in very bad shape with poor colour, was convulsing and had poor breathing. The child was immediately placed on oxygen therapy. According to Dr Faweya it became increasingly obvious to him that the child desperately needed a blood transfusion to remain alive.
The child’s mother bluntly refused blood transfusion for her child. She made it clear that because of her religious beliefs, being a member of the Jehovah Witness Sect she cannot consent to her child receiving blood.
Acts 15:29 in the Bible says in part:
“Keep abstaining from blood…”
Jehovah Witnesses believe that the Bible commands that they do not ingest blood included through transfusion.
This issue involves a convergence of religion medicine and law.
It is long settled that an adult who is conscious and in full control of his mental capacity, and of sound mind has the right to either accept or refuse blood (medical treatment). The hospital has no choice but to respect their patients wishes. All adults have that liberty of choice. This freedom has been exercised in accordance with the rule of law (see Section 45 (1) (b) of the Constitution).
All adults have the inalienable right to make any choice they may decide to make and to assume the consequences.
When it involves a child different considerations apply and this is so because a child is incapable of making decisions for himself and the law is duty bound to protect such a person from abuse of his rights as he may grow up and disregard those religious beliefs.
It makes no difference if the decision to deny him blood transfusion is made by his parents.
See M.D.P.D.T. v Okonkwo (2001) 7NWLR (Pt.711) p.206.
When a competent parent or one in loco parentis refuses blood transfusion or medical treatment for her child on religious grounds, the Court should step in, consider the baby’s welfare, i.e. saving the life and the best interest of the child, before a decision is taken. These considerations outweigh religious beliefs of the Jehovah Witness Sect.
The decision should be to allow the administration of blood transfusion especially in life threatening situations.
Learned counsel for the appellant observed that the Court of Appeal was wrong when it held that authority to withhold consent to blood transfusion was overridden by the Court order.
He argued that since the Order of the Magistrate was made without jurisdiction the Order is null and void. He further argued that no order has been issued in favour of the 1st to 4th respondents and the transfusion carried out without consent and without order of Court amounts to a trespass.
Concluding he submitted that the right to withhold consent to a method of treatment is a fundamental right guaranteed by the Constitution. Reliance was placed on Section 46 of the Constitution.
M.D.P.D.T. v Okonkwo (2001) 7NWLR (Pt.711) p.206.
He urged the Court of resolve the issue in favour of the appellants’.
Learned counsel for the 1st and 2nd respondents’ submitted that the Court of Appeal was correct when their lordships held that the 5th respondent acted within jurisdiction.
He observed that the Court of Appeal was right to apply the principle in Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (2001) 7NWLR (Pt.711)p. 206.
Learned counsel for the 3rd and 4th respondents’ submitted that the Court order has been carried out, completed irreversibly, contending that the issue is dead and buried.
Learned counsel for the 5th respondent submitted that the ratio of Ayoola JSC in M.D.P.D. v Okonkwo (supra) applies.
On issue 6 learned counsel for the appellants’ submitted that certiorari is available even when the act is completed as in this case. Reliance was placed on Ezenwa v Best way Electronic Manufacturing Co.Ltd (1999) 8 NWLR (Pt. 613) p. 61; Ezeani v Ekwealu & Ors (1961) ANLR p.428.
Concluding he submitted that the Court of Appeal was wrong when it held that because the transfused blood cannot be extracted from the 1st appellant the matter has become academic.
On issue 7 learned counsel for the appellants’ submitted that the Court of Appeal was wrong to hold that no proof was laid for claim for damages. He argued that since the right to refuse treatment is a Constitutional right, its violation by the 1st to 4th respondents should attract damages. Reference was made to Ebe v Nnamani (1997) 7NWLR (Pt.513) p. 479.
Concluding he submitted that Damages follows trespass and violation of rights, and that the decision of the Court of Appeal should be overturned for this reason.
On issues 6 and 7 learned counsel for the 1st and 2nd respondents’ observed that questions of extraction of transfused blood and the appellants’ entitlement to damages are both academic questions.
He submitted that the Court of Appeal was correct in not considering the issue of general damages since the appellants’ failed to persuade the High Court that such trespass as occurred was unjustified.
Learned counsel for the 3rd and 4th respondents’ observed that the appellants’ have not made a case for this Court to disturb and set aside the concurrent findings of the High Court and the Court of Appeal, contending that this appeal is a waste of precious judicial time.
On issue 6 learned counsel for the 5th respondent relied on M.D.P.D.T. v Okonkwo (supra).
On issue 7 learned counsel for the 5th respondent observed that since the Court of Appeal upheld the High Court judgment and concluded that the process of the 5th respondent was in order, there was no need for an award of damages.
The grant of Certiorari is discretionary and it would only issue to quash judicial acts and not ministerial, administrative or executive acts.
The remedy would be available-
(a) Where a party was denied fair hearing
(b) Where an inferior Court acted without or in excess of jurisdiction.
(c) Where there are errors in the record of the inferior Court.
(d) Where a conviction or order has been obtained by collusion, or by fraud. See Ekpo v Calabar Local Govt Council (1993) 3 NWLR (Pt.281) p. 324. Nnadika v Ejire (1994) 1NWLR (Pt.320) p.295.
The object of the prerogative Writ of Certiorari is for the superior Court to quash arbitrary decisions of inferior Courts, especially when they exceed their jurisdiction and make pronouncements that are wrong.
Was the High Court right to refuse to grant certiorari?
The Order of the Chief Magistrate (5th respondent) that learned counsel for the appellants’ wants quashed by the Writ of Certiorari reads:
“The medical authorities of the Clinic of Chevron Nigeria Limited Lekki Peninsula Lagos, are hereby authorised to do all and anything necessary for the protection of the life and health of the child TEGA ESABUNOR”
In compliance with the above Dr. Faweya administered blood transfusion on the 1st appellant.
Learned counsel for the appellants observed that the Chief Magistrate had no jurisdiction to make the order, contending that Certiorari is available even when the act is completed.
Reliance was placed on Ezenwa v Best way Electronic Manufacturing Co.Ltd (1999) 8 NWLR (Pt. 613) p. 61
First of all this is a decision of the Court of Appeal. It is only persuasive. In any case in that case a High Court granted the application for certiorari mainly on the ground that the Customary Court lacked jurisdiction to order all the occupiers of the property to be ejected without regard to the relevant laws relating to recovery of premises.
I earlier on in this judgment laid out instances when the remedy of certiorari would be available to quash proceedings or orders from inferior Court.
If any of the instances are proved to the satisfaction of a superior Court, certiorari ought to issue even if the act is completed.
However, where as in this case the Chief Magistrate made the orders of 12 May 1997 under his inherent jurisdiction and there were no errors in the record of his Court, and the appellants’ were not denied fair hearing, it becomes clear that none of the instances can avail the appellants’ to justify certiorari. The High Court was right to refuse certiorari and the Court of Appeal was also right to affirm the High Court refusal to grant certiorari.
Whether the appellants’ are entitled to damages?
The case of the appellants’ is that the 1st appellant was administered blood transfusion without authorization of his mother (the 2nd appellant). It is the trespass of transfusion on the body of the 1st appellant without consent that the appellants’ are challenging.
Trespass in this context is an unlawful entry or invasion by Dr Faweya on the body of the 1st appellant.
The general rule is that damages awarded by a trial Court is based on EVIDENCE before the Court and where there is no evidence to support a claim for damages, the claim should be dismissed.
Ingesting the child with blood was a lawful act backed by a Court order. Dr Faweya complied with the Court order to save the life of the child. There was no evidence and there could be none to justify the award of damages for a lawful act.
The appellants’ are not entitled to damages. Where an appeal is against the concurrent findings of the two lower Courts the Supreme Court will not interfere except there are exceptional circumstances to do so. See Adekoya v State (2012) 9 ANWLR (Pt.1306) p. 539; Egbo v State (1982) 9SC p. 74.
Concurrent findings of the two Courts below that the Chief Magistrate (5th respondent) exercised his inherent discretion in making the orders he made are correct. Learned counsel for the appellants’ has been unable to convince this Court to interfere with those findings.
In the end there is no merit in this appeal.
Appeal dismissed.
SC.97/2009
