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When a parent or one in loco parentis refuses blood transfusion for their child, the court will step in

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Scale of justice

ESABUNOR & ANOR v. FAWEYA & ORS (2019) LPELR-46961 (SC)

In the Supreme Court of Nigeria

ON THURSDAY, 8TH MARCH, 2019

Suit No: SC.97/2009

Before Their Lordships:


OLABODE RHODES-VIVOUR, JSC
OLUKAYODE ARIWOOLA, JSC
JOHN INYANG OKORO, JSC
CHIMA CENTUS NWEZE, JSC
AMINA ADAMU AUGIE, JSC
Between

1. TEGA ESABUNOR
(Suing by his next friend Mrs. Rita Esabunor) – Appellant(s)
2. MRS. RITA ESABUNOR

And

1. DR. TUNDE FAWEYA
2. CHEVRON NIGERIA LIMITED -Respondents
3. SUPOL D. YAKUBU
4. COMMISSIONER OF POLICE LAGOS STATE
5. M. OLOKOBA (Chief Magistrate Grade 1 Lagos Magisterial District)

LEAD JUDGMENT DELIVERED BY OLABODE RHODES-VIVOUR, J.S.C.
FACTS OF THE CASE

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 granted the application under its inherent jurisdiction. On receipt of the Order of the Chief Magistrate, the 1st respondent administered blood transfusion on the 1st appellant on the same day. (i.e. May 12, 1997).

The 1st appellant got well and was discharged. His mother took him home. On May 15, 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 May 21, 1997.

The appellants’ were dissatisfied with the proceedings before the Chief Magistrate, so they approached the High Court for an order of Certiorari and damages of N10 million. In a considered ruling delivered on May 28, 2001 the learned trial judge refused their prayers and claims.

The appellants’ were not satisfied with the ruling of the High Court. They filed an appeal. The Court of Appeal, Lagos Division, heard it and the decision of the High Court was affirmed. Further dissatisfied, the Appellants appealed to the Supreme Court.

ISSUES FOR DETERMINATION
The Apex Court determined the appeal on the following Appellants’ issues: (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.

APPELLANT’S COUNSEL SUBMISSIONS
On 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.

Also learned counsel for the appellants’ observed that the appellants’ were not heard before the Originating Motion Exparte 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.

RESPONDENT’S COUNSEL SUBMISSIONS
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.

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.

Also 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.

On issue 4, 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.

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.

RESOLUTION OF ISSUES
Resolving issues 1, 2 and 3, the Court stated the trite position of the law on jurisdiction of Court. The question then was, did the Court of Appeal abandon the issue of jurisdiction of the Chief Magistrate? The Supreme Court held that 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.

As regards whether what the Court of Appeal did amounted to misdirection, the Court stated that 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 Court found that 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.

After examining the proceedings at the Chief Magistrate’s Court, the Court held that it is so obvious that the intention of the Commissioner of Police was to prevent the commission of a Criminal Offence and when such an action is brought before a Chief Magistrate he has inherent jurisdiction to prevent the commission of a criminal offence.

The Court held that the 5th respondent in the circumstances had 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.

Resolving issue 4, the Court stated 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.

When it involves a child, the Court stated that 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.

The Court held that 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.

On issue 6, the Court held that the grant of Certiorari is discretionary and it would only issue to quash judicial acts and not ministerial, administrative or executive acts.

The Court stated instances when the remedy would be available. The Supreme Court held that 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.

As regards damages, the Court held that 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.

HELD 
On the whole, the Supreme Court found no merit in the appeal and it was accordingly dismissed.


Compiled by LawPavilion


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