CORAM

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biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Behizena Idemudia Afolabi Justice of the Court of Appeal

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PARTIES

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MR. JONATHAN TERNA AGOON

APPELLANTS 

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BENUE STATE UNIVERSITY TEACHING HOSPITAL, MAKURDI

RESPONDENTS 

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AREA(S) OF LAW

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CONSTITUTIONAL LAW, HUMAN RIGHTS, FUNDAMENTAL RIGHTS ENFORCEMENT, PERSONAL LIBERTY, DIGNITY OF HUMAN PERSON, FAIR HEARING, FREEDOM OF MOVEMENT, PRACTICE AND PROCEDURE, APPEAL, EVIDENCE, DAMAGES, ADMINISTRATIVE LAW, HEALTHCARE LAW, MINOR’S RIGHTS, LOCUS STANDI

 

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SUMMARY OF FACTS

The Appellant, Mr. Jonathan Terna Agoon, brought his son, Vincenzo Iyuanadoo Terna (then a minor aged 1 year and 2 months), to Benue State University Teaching Hospital, Makurdi for medical treatment on 16th November 2020. The child was referred to the Paediatrics Unit where upon examination, the Appellant was given a prescription list of consumables needed for his son’s treatment. These consumables were out of stock in the Respondent’s pharmacy, compelling the Appellant to purchase them from an external medicine store at a cost of N4,600.

The child was admitted and treated successfully from 16th November 2020. On 18th November 2020 at about 9am, the child was declared fit for discharge. However, the hospital demanded payment of various charges including N2,500 as charges for ‘consumables’ – the same consumables the Appellant had already purchased externally. The Appellant paid all other charges but refused to pay the N2,500 consumables charge, arguing that he had already purchased the consumables from outside the hospital.

In response to this refusal, the Respondent hospital, through the Chief Matron on duty, instructed that the child be detained in the hospital. The child was held from 9am on 18th November 2020 until 1pm on 19th November 2020, when he was eventually released after the Appellant paid the disputed N2,500 charge and received a gate pass to leave the premises.

The Appellant commenced an action under the Fundamental Rights (Enforcement Procedure) Rules 2009 claiming that this detention violated his son’s constitutional rights under Sections 34, 35, 36 and 41 of the 1999 Constitution. The Federal High Court dismissed the Appellant’s claims for lacking merit, finding that the principal grievance was over-billing rather than fundamental rights enforcement. Dissatisfied with this decision, the Appellant appealed to the Court of Appeal.

 

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HELD

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1. The appeal was allowed.

2. The Court held that the principal claim of the Appellant was properly for the enforcement of fundamental rights of his son and not merely about over-billing, making the suit competent under the Fundamental Rights (Enforcement Procedure) Rules 2009.

3. The Court found that the Appellant successfully proved the infringement of his son’s fundamental right to personal liberty through unlawful detention by the Respondent hospital.

4. The lower Court’s ruling dismissing the Appellant’s claims was set aside, and judgment was entered in favor of the Appellant.

5. The Respondent was ordered to pay N2,500 as refund for overbilled charges and N150,000 as nominal damages for infringement of fundamental rights, plus N100,000 costs.

 

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ISSUES

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1. Whether the lower Court was right in holding that the Appellant’s primary grievance was over-billing and he should not have resorted to a claim under the Fundamental Rights Proceedings?

2. Whether from the totality of the evidence before the lower Court, the Appellant did not prove the infringement of his son’s fundamental rights against the Respondent?

3. Whether the lower Court properly evaluated the evidence placed before it?

4. Whether the Appellant is entitled to the reliefs sought?

 

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RATIONES DECIDENDI

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CAPACITY TO BRING FUNDAMENTAL RIGHTS ACTION – PARENT’S RIGHT TO SUE ON BEHALF OF MINOR CHILD

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My lords, looking at the facts of this case in respect of the capacity of the Appellant, as the father whose son, then a minor, was allegedly detained by the Respondent on account of alleged failure to pay charges due for ‘Consumables’, it does appear to me, and I so hold, that in application for the enforcement of fundamental rights of the citizen, including the Applicant’s minor son, under Chapter IV of the Constitution of Nigeria 1999 (as amended) and by virtue of the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, the general requirement of locus standi has indeed been done away. Thus, the Appellant is, in my finding and I so firmly hold, empowered by law pursuant to the provisions of Fundamental Rights (Enforcement Procedure) Rules 2009, to institute and maintain this suit against the Respondent on behalf of and for the protection of the fundamental rights of his son, then a minor.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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COMPETENCE OF FUNDAMENTAL RIGHTS ACTION – PRINCIPAL CLAIM MUST BE FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS

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In law, for an action to be valid to be commenced by means of an application for the enforcement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), the principal claim or relief or cause of action must be one founded on or is for the enforcement of any of the fundamental right as guaranteed by Chapter IV of the Constitution of Nigeria 1999 (as amended). It is then and only then that such a claim can be commenced under the Fundamental Right (Enforcement (Procedure) Rules 2009, as anything otherwise, such a claim would be incompetent if commenced under the Fundamental Right (Enforcement (Procedure) Rules 2009. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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INCIDENTAL CLAIMS IN FUNDAMENTAL RIGHTS ACTIONS – WHEN FUNDAMENTAL RIGHTS BREACH IS ANCILLARY

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It is therefore, the law that for an action to be competent under the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 as an application for enforcement of fundamental rights, the principal claim must be one for the enforcement of fundamental right, failing which such an action is and must be held to be incompetent by the Court. It must be shown that the breach of a fundamental right is the main claim. It follows therefore, that if the claim or violation of a fundamental right is only incidental or ancillary to the main claim or relief sought, it would be incompetent to institute the action as one for the enforcement of a fundamental right.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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INTERPRETATION OF FUNDAMENTAL RIGHTS – PURPOSEFUL AND LIBERAL INTERPRETATION

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My lords, whenever the enforcement of fundamental rights is in issue, and due to their sacrosanct nature, the Courts are enjoined to give purposeful interpretation. Indeed, it would be safer for us to err on the side of liberalism than to import some restrictive interpretation when faced with the enforcement of the fundamental, not just other, rights of the citizens. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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RIGHT TO PERSONAL LIBERTY – LAWFUL DEROGATION AND CONSTITUTIONAL EXCEPTIONS

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By Section 35(1)(C) of the Constitution of Nigeria 1999 (as amended), it is provided thus: ’35 (1): Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law: – (C), for the purpose of bringing him before a Court in execution of the Order of Court or upon reasonable suspicions of his having committed a Criminal Offence or to such extent as may be reasonably necessary to prevent his committing a Criminal Offence’ – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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UNLAWFUL DETENTION – ENTITLEMENT TO PROTECTION WHEN PERSONAL LIBERTY IS INFRINGED

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My lords, the law is that an infringement or threatened or likely infringement of the right to personal liberty of the citizen, unless lawfully justified, is not only enforceable but would if proved amount to an unconstitutional act or omission for which a citizen whose right to personal liberty is so infringed upon or threatened to be infringed or is likely to be infringed is entitle to the protection of the law by way of a grant of his reliefs claimed for such actions or omissions against the offending party.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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APPELLATE COURT’S POWER TO RE-EVALUATE EVIDENCE – WHEN TRIAL COURT FAILS TO PROPERLY EVALUATE EVIDENCE

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I am aware, and it is the law, that an Appellate Court ought not to interfere with finding of fact of a trial Court, yet, where such facts are in fact inferences from findings properly made or where such findings are perverse or when such decision has occasioned a miscarriage of justice, the Appellate Court is in as good a position as the trial Court to come to interfere with such a decision and reach proper findings. It is also the same position where it is shown that the trial Court had closed its eyes to the facts in evidence before it, and had rather taken into consideration matters extraneous to the facts in issue, and relied on same to reach crucial findings or decisions.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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BURDEN OF PROOF IN FUNDAMENTAL RIGHTS CASES – JUSTIFICATION FOR DETENTION

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I think, going by the seeming inverted burden of proof as can be garnered from the reasoning of the lower Court, in proceedings under the Fundamental Rights Enforcement (Procedure Rules) 2009, once the fact of the restriction and or detention of the citizen is proved or is not denied, the onus in on the person or authority alleged to have done unlawfully to show lawful justification or excuse for the restriction and or detention of the Victim. In this vein, self – help, even where there may be genuine fears of absconding, is not a lawful justification for the detention of the citizen by one not so authorised by law so to do.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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UNLAWFUL DETENTION – LIABILITY FOR PENALTY REGARDLESS OF DURATION

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Thus, any such action leading to unlawful restriction and or curtailment of the right to liberty of the citizen, if established by credible evidence, no matter and however short or long the period may be, must attract penalty to assuage the victim and also to dissuade and deter unnecessary curtailment of the right to liberty of the citizen.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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HOSPITAL’S DUTY IN DEALING WITH MINORS – PROPER CONSIDERATION FOR WELFARE AND HEALTH

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Here is a father of a minor, whose son has for whatever reason, and here, I think the Respondent ought to have appreciated the fact that they were dealing with the welfare and health of a minor and not necessarily of his father, had been refused to be released home with his father over a meagre sum of N2, 500. 00, which, at best, was a debt recoverable from the Appellant by the Respondent. The Respondent could easily do so through the instrumentality of a civil process of recovery rather than resort to the barbaric method of keeping behind in the hospital environment a minor who had been certified fit to go home. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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COMPENSATION IN FUNDAMENTAL RIGHTS CASES – AUTOMATIC ENTITLEMENT TO DAMAGES

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However, under proceedings for the enforcement of fundamental rights, the law is that such a victorious party is entitled to some form of compensation from the offending person or the appropriate authority, and this is so notwithstanding whether or not such a person claims for damages or compensation. In Gabriel Jim – Jaja V. Commissioner of Police, Rivers State & Ors (2013) 6 NWLR (Pt. 1350) 223 @ pp. at 244 – 245, the Apex Court had per Ngwuta JSC (God bless his soul) stated succinctly inter alia thus: ‘Fundamental Right matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. Once the Appellant proved the violation of his fundamental right by the Respondents, damages in form of compensation and even apology should have followed.’– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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SPECIAL DAMAGES AND COSTS – REQUIREMENT FOR PLEADING AND PROOF

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However, I have scanned all through the evidence, including the documentary Exhibits J1 – J10, and I cannot see anywhere the Appellant referenced any professional bill he incurred for the prosecution of the case before the lower Court. In law, solicitor bill can be recovered, but under a claim for special damages and must, therefore, be pleaded, given in evidence and proved specifically to be recovered as cost of the action, failing which it is never granted as a matter of course or just for the asking. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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NOMINAL DAMAGES – TECHNICAL MEANING AND APPLICATION

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In law, damages are not necessarily nominal because they are small in amount. The term ‘nominal damages’ is a technical one which negatives any real damage, and means nothing more than that a legal right has been infringed in respect of which a man is entitled to judgment. The term ‘nominal damages’ does not mean small damages. It follows, therefore, Nominal Damages are small and unspecified sums of money which have no peg on which to hang costs.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Fundamental Rights (Enforcement Procedure) Rules 2009

3. African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of Federation of Nigeria, 2004

4. Evidence Act 2011

5. Court of Appeal Rules 2021

6. Benue State of Nigeria, Gazette, No. 17 Vol. 40, 2015 (Benue State University Teaching Hospital, Makurdi Hospital Fees Regulation)

 

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