ESABUNOR V. FAWEYA: On power of court to intervene where parent or person in loco parentis objects to particular form of medical treatment for child on religious grounds. An insight into the decision of the Supreme Court therein.

Citation: (2019) 7 N.W.L.R PT. 1671 AT 316.
[Suing By His Next Friend Mrs. Rita Esabunor]

    [Chief Magistrate Grade 1, Lagos Magistrate District].

Courtesy: Moruff O. Balogun Esq.
Summary of facts:
The 2nd appellant is the mother of the 1st appellant. She gave birth to him on 19th April 1997 at the Chevron Clinic, Lekki Peninsula, Lagos State. On 11th May 1997, within a month of his birth, the 1st appellant fell gravely ill. His mother took him back to the Chevron Clinic that day for urgent treatment.

The 1st respondent examined the 1st appellant and found that he was suffering from severe infection and anaemia (lack of blood). The 1st respondent began treatment. He administered antibiotics on the 1st appellant. In the morning of 12th May 1997, the 1st respondent observed that the 1st appellant’s health had not improved. The 1st appellant had poor colour, was convulsing, and was not breathing well. From his observations, the 1st respondent concluded that the 1st appellant urgently needed blood transfusion to stay alive.

But the 2nd respondent and her husband clearly told the 1st respondent that on no account should the 1st appellant (their child) be given blood transfusion.
Their reasons were that: (a) blood transfusion would expose the 1st appellant to
several health hazards such as aids, hepatitis, etc.; and (b) as members of the Jehovah’s Witnesses Christian sect, their religious belief required them to abstain from blood transfusion.

The 1st respondent did not agree with the 2nd appellant and her husband on their objection to blood transfusion for the 1st appellant. He reported the matter to the 4th respondent who filed an originating motion ex parte before the 5th respondent on 12th May 1997. The motion was filed under sections 27(1) and 30 of the Children and Young Persons Law, Cap. 25, Laws of Lagos State, 1994.

The 2nd appellant was the defendant to the action. The relief sought was that the medical authorities of the clinic of Chevron Nigeria Limited, Lekki Peninsula, Lagos State be allowed and permitted to do all and anything necessary for the protection of the life and health of the 1st appellant.

The 5th respondent heard and delivered his ruling on the motion that same 12th May 1997. The 5th respondent held that he had the inherent jurisdiction to prevent the commission of offences. He reasoned that it the 2nd appellant was allowed to prevent the 1st appellant from being transfused with blood, an offence would have been committed under section 339 of the Criminal Code, and that if the 1st appellant died, the offence of murder under section 316 would have been committed as a result. So, the 5th respondent granted the relief sought. He authorized the medical authorities of the Chevron Clinic to do all and anything necessary for the protection of the life and health of the 1st appellant.

On receipt of the 5th respondent’s order, the 1st respondent administered blood transfusion on the 1st appellant who got well, was discharged, and was taken home by the 2nd appellant.
Later, on 15th May 1997, the 2nd appellant filed an application on notice at the Magistrate Court. She sought setting aside of the order by which the blood transfusion was done. The 5th respondent heard and dismissed the application.

The appellants were dissatisfied with the proceedings before the 5th respondent. They filed an action at the High Court for:
An order of certiorari removing into the High Court the entire proceedings for the purpose of being quashed.
N10,000,000 (Ten million naira) as damages against the respondents jointly and severally for unlawfully injecting or transfusing blood into the body of the 1st appellant without the consent of himself and or the 2nd appellant.
N5,000.000 (Five million naira) damages against the 1st and 2nd respondents for unlawfully preventing the 2nd appellant from having access to her son (the 1st appellant) from 12th May 1997 to 15th May 1997, and also for preventing the 2nd appellant from exercising her parental rights of care over the 1st appellant.

The parties filed their respective affidavit and counter-affidavit. After hearing the parties, the High Court delivered a considered ruling. The High Court held that an order of certiorari could not be made because the blood transfusion had taken place. Therefore, the High Court dismissed the appellants’ application.

The appellants appealed to the Court of Appeal, which found that there was no basis upon which the High Court could have granted the relief of certiorari sought by the appellants. Consequently, he Court of Appeal affirmed the ruling of the High Court and dismissed the appeal. The appellants appealed to the Supreme Court.

Held: The Supreme Court unanimously dismissed the appeal.

The following issues were raised and determined by the Supreme Court:

On power of court to intervene where parent or person in loco parentis objects to particular form of medical treatment for child on religious grounds –
All adult persons have the inalienable right to make any choice they may decide to make and to assume the consequences. Accordingly, an adult person who is conscious and in full control of his mental capacity, and is of sound mind has the right to either accept or refuse medical treatment, including blood transfusion. In such case, the hospital has no choice but to respect the person’s wishes.

However, different considerations apply to a child 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 even by the child’s parents. So, when a competent parent or a person in loco parentis refuses medical treatment or blood transfusion for a child on religious grounds, the court should step in.

The court should take a decision after considering the child’s welfare, i.e. saving the life and the best interest of the child. These considerations outweigh whatever religious belief the parent of the child may have about any form of medical treatment because the child may grow up to reject his parents religious beliefs. And the decision of court should be to allow the administration of blood transfusion especially in life threatening situations.

In this case, the 1st appellant was then only one-month old, was incápable of deciding for himself. On the other hand, the 2nd appellant, his mother acted on her religious belief. In the circumstance, the 5th respondent was right in granting the said 4th respondent’s application which allowed the 1st respondent to save the life of the 1st appellant.

On when court will interfere with rejection of particular medical treatment and when will not –
The law exists primarily to protect life and preserve the fundamental right of its citizens inclusive of infants. 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.

On right of child to health and health facilities-
Section 13 of the Child’s Right Act provides for the right to health and health services of the child. Particularly, section 13(2) provides that every government, parent, guardian,
institution, service, agency, organization, or body responsible for the care of a child shall endeavour to provide for the child, the best attainable state of health.

In this case, having regard to the provisions of the Child’s Right Act, it would
have amounted to a great injustice to the 1st appellant if the court stood by and watched the 1st appellant being denied of basic treatment to save his life on the basis of the religious conviction of his parent (the 2nd appellant).

On scope of power of court in respect of welfare of children-
Section 59(1) of the Child’s Right Act, 2003 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.

On source and importance of jurisdiction of court and effect where court lacks jurisdiction-
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 exercises judicial powers. Absence of jurisdiction renders the entire proceedings of a court a nullity no matter how well it was conducted and decided.

On when issue of jurisdiction can be raised –
The issue of 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.

On what court considers in determining whether it has Jurisdiction-
In determining whether a court has jurisdiction, only the plaintiff’s claim is considered.

On source, nature and purpose of inherent jurisdiction of court-
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.

The inherent jurisdiction or powers are not given to the courts by the Constitution or legislation. In this case, from the proceedings at the Chief Magistrate’s Court, the intention of the 4th respondent (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.

In the circumstance, the 5th respondent had jurisdiction to preside as he did and to make the orders he made. The High Court rightly decided not to quash those orders and the Court of Appeal was right in affirming the decision of the High Court.

On when a decision of court is on issue of jurisdiction of court-
A decision of a court on the issue of jurisdiction may not have the word “jurisdiction” mentioned in it. 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 in this case, it is a decision on jurisdiction.

In this case, the Court of Appeal did not abandon the issue of jurisdiction of the Chief Magistrate’s Court. The Court of Appeal made a positive finding that the 5th respondent had jurisdiction over the matter. In the circumstance, it is necessary for the Supreme Court to consider the issue jurisdiction of the Chief Magistrate as it was decided on by the Court of Appeal.

On what amounts to misdirection by court-
There is misdirection by a court if the court misdirected itself 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. In this case, the Court of Appeal addressed the issue of jurisdiction of the Chief Magistrate Court comprehensively.

It summarized the evidence correctly and came to the correct conclusion on the issue of jurisdiction of the Chief Magistrate’s Court. In the circumstance, the issue of jurisdiction of the Chief Magistrate’s Court was not abandoned by the Court of Appeal, and what the court did, was not misdirection.

On object of order of certiorari –
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.

On when order of certiorari will issue-
The grant of certiorari is discretionary and it would only issue to quash judicial acts and not ministerial, administrative, or executive acts. The remedy of certiorari is available where:
A party was denied fair hearing.
An inferior court acted without or in excess of jurisdiction.
There are errors in the record of the inferior court.
A conviction or order has been obtained by collusion, or by fraud.

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 in this case, the 5th respondent made the orders of 12th May 1997 under his inherent jurisdiction and there were no errors in the record of his court, and the appellants’ were not denied lair hearing there was no ground to justify a writ of certiorari. In the circumstances, the High Court was right to refuse certiorari.

The Court of Appeal was also right to affirm the High Court’s refusal to grant certiorari.

On when order of certiorari will issue-
Where it is established before the High Court that an inferior court with limited powers has abused those powers, and that such abuse does and continues to affect prejudicially the rights of a citizen, certiorari will issue at the instance of that citizen. Such abuse may be in the form of denial of the right to be heard; it may consist of irregularities, which are tantamount to a breach of the rules of natural justice; and it
may take the form of assumption of jurisdiction to perform an act unauthorized by law or the refusal of jurisdiction where it should be exercised. So, the list is not exhaustive.

On when order of certiorari will issue-
Certiorari lies to the High Court to quash the orders or the proceedings of an inferior court or tribunal, which has acted in excess of its jurisdiction or in breach of the principles of natural justice.

On duties and powers of Nigeria Police-
Section 214(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 provides that the Nigeria Police has such powers and duties as may be conferred upon them by law.

And 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. In this case, from the proceedings at the Chief Magistrate’s Court, the intention of the 4th respondent (Commissioner of Police) was to prevent the commission of a criminal offence.

On constitutional guarantee and scope of right to 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 of the Federal Republic of Nigeria, 1999. However, in this case, the originating motion filed was not a civil action in which case the 2nd appellant would have been put on notice.

The purpose of taking the 2nd appellant to court was to stop her from committing an offence/crime. Her civil rights (including right to fair hearing) and obligations 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.

On whether Supreme Court can consider issue Court of Appeal failed to consider-
The Supreme Court can consider an issue which the Court of Appeal failed to consider. In other words, the Supreme Court can take up and decide an issue raised before the Court of Appeal but was not considered by that court.
A decision of the Court of Appeal is only persuasive before the Supreme Court.

On need to base award of damages on evidence adduced-
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 would be dismissed. In this case, the trespass alleged by the appellants was the 1st respondent’s act of transfusing blood into the body of the 1st appellant without the consent of the 2nd appellant.

However, the 1st respondent’s act was backed by a court order, and the 1st respondent
acted to save the life of the 1st appellant. In the circumstance, there was no evidence to justify the award of damages to the appellants.

Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
09121207712 [WHATSAPP]

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