⦿ CASE SUMMARY OF:
Tega Esabunor & Anor v. Dr. Tunde Faweya & Ors (2019) – SC
– Natural Justice;
– Child’s welfare;
– Jehovah witness;
– Criminal Law;
1. TEGA ESABUNOR (Suing by his next friend Mrs. Rita Esabunor);
2. MRS. RITA ESABUNOR
1. DR. TUNDE FAWEYA;
2. CHEVRON NIGERIA LIMITED;
3. SUPOL D. YAKUBU;
4. COMMISSIONER OF POLICE LAGOS STATE;
5. M. OLOKOBA (Chief Magistrate Grade 1 Lagos Magisterial District);
⦿ LEAD JUDGEMENT DELIVERED BY:
OLABODE RHODES-VIVOUR, J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mr A. Adenipekun SAN;
* FOR THE RESPONDENT
– Mr F. Attah;
– T. Bashorun;
– Mr. L. Soetan;
⦿ FACT (as relating to the issues)
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 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.
(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, ARE TAKEN TOGETHER.
ISSUES 4, 5, 6, AND 7, ARE TAKEN TOGETHER.
⦿ HOLDING & RATIO DECIDENDI
1. FOR ISSUES 1, 2, AND 3, THE SUPREME COURT HELD AGAINST THE APPELLANT, AND IN FAVOUR OF THE RESPONDENTS.
i. 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.
ii. 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.
iii. 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.
iv. 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.
2. ISSUES 4, 5, 6, AND 7 WERE JUDGED AGAINST THE APPELLANT, AND IN FAVOUR OF THE RESPONDENTS.
i. 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.
ii. 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.
iii. 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.
S. 33 & 214 of the CFRN 1999;
S.4 Police Act 2004;
⦿ SOME PROVISIONS
Section 13(2) of the Child’s Right Act provides that: “Every Government, parent, guardian, institution, service, agency, organization or body responsible for the care of a child shall endeavor to provide for the child the best attainable state of health.”
Section 59(a) of the Child’s Right Act provides that: “Where it appears to the Court in proceedings in which a question arises as to the welfare of a child, that it may be appropriate for a care supervision order to be made with respect to that child, the Court may direct the appropriate authority to undertake an investigation of the child’s circumstances.”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
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. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
In determining jurisdiction it is only the plaintiffs claim that is considered. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
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. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
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. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
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. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
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. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
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. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
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. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
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. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
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. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
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. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
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. – Rhodes-Vivour, JSC. Esabunor v. Faweya (2019)
The law would not override the decision of a competent mature adult who refuses medical treatment that may prolong his life but would readily intervene in the case of a child who lacks the competence to make decisions for himself. – Inyang-Okoro, JSC. Esabunor v. Faweya (2019)
In the light of the above provisions, I hold the view that it could have amounted to a great injustice to the child if the Court had stood by and watched the child being denied of basic treatment to save his life on the basis of the religious conviction of his parent. He probably would not be alive today. I agree with my learned brother that in a life threatening situation, such as the 1st Appellant was in as a child, the consideration to save his life by application of blood transfusion greatly outweighs whatever religious beliefs one may hold, especially where the patient is a child. – Inyang-Okoro, JSC. Esabunor v. Faweya (2019)