AMAKA OKORO V NIGERIA CENTRE FOR DISEASE CONTROL (NCDC) & ORS

CORAM

Muhammad Ibrahim Sirajo-Justice of the Court of Appeal

Lateef Adebayo Ganiyu-Justice of the Court of Appeal

Asmau Ojuolape Akanbi-Justice of the Court of Appeal

PARTIES

AMAKA OKORO

APPELLANTS 

1. NIGERIA CENTRE FOR DISEASE CONTROL (NCDC)

2. GOVERNOR OF EDO STATE

3. ATTORNEY GENERAL OF EDO STATE

4. ATTORNEY GENERAL OF IMO STATE

RESPONDENTS 

AREA(S) OF LAW

CONSTITUTIONAL LAW, FUNDAMENTAL RIGHTS, HEALTH LAW, ADMINISTRATIVE LAW, PUBLIC HEALTH EMERGENCY, PRACTICE AND PROCEDURE, EVIDENCE, HUMAN RIGHTS

SUMMARY OF FACTS

This case revolves around an alleged breach of fundamental rights during the COVID-19 pandemic in 2020. On April 26, 2020, the Appellant, Amaka Okoro, went to a pharmacy to buy Panadol for body pain. Opposite the pharmacy was a COVID-19 screening center, where she voluntarily submitted herself for testing. On April 28, 2020, she received a call from officials of the 1st Respondent (NCDC) informing her that her test result was positive. Officials from the 1st-3rd Respondents subsequently visited her home, requesting that she leave her baby behind and follow them to an Isolation Centre.

The Appellant refused, claiming she was not suffering from any infectious disease and that it was against her belief to take drugs for a “non-existing disease.” She requested her test result, which she alleged the Respondents refused to provide. On April 29, 2020, the Appellant was declared wanted by the Respondents. On April 30, 2020, she alleged that the 1st-3rd Respondents sent a signal to the 4th Respondent (Attorney General of Imo State) that she was returning to Imo State to spread the virus, resulting in the deployment of Nigerian Army officers to her hometown to arrest her or prevent her entrance.

The Appellant further claimed that a COVID-19 team from the 4th Respondent stormed her hometown to take her to an Isolation Centre in Owerri, and that youths stormed her in-laws’ house threatening to burn it down for allegedly attempting to spread a deadly disease. She alleged that on May 11, 2020, using her nickname and that of her husband, she took another COVID-19 test at Irrua Specialist Hospital, which came out negative.

The Appellant instituted an action at the Federal High Court, Benin Division, seeking declarations that her fundamental rights to dignity, privacy, and freedom of thought had been violated, along with orders for damages and an apology. The Federal High Court dismissed her claims, finding no merit in the action. Dissatisfied with the judgment, the Appellant appealed to the Court of Appeal.

HELD

1.The appeal was dismissed for lacking merit.

2.The Court held that the lower Court did not approbate and reprobate when it found that the Appellant had a cause of action but later dismissed her claims for failing to discharge the burden of proof.

3.The Court held that the Appellant failed to provide credible evidence to prove the infringement of her fundamental rights.

4.The Court held that even if there had been an infringement of the Appellant’s rights, Section 45 of the Constitution and Sections 26(2)(e) and 27 of the National Health Act would have justified the Respondents’ actions in the interest of public health.

5.The Court upheld the lower Court’s decision to strike out the 2nd Respondent (Governor of Edo State) from the suit, finding that he was not a necessary party as the Attorney General of Edo State adequately represented the state’s interests.

6.The Court awarded costs of N500,000 (Five Hundred Thousand Naira) to each of the Respondents against the Appellant

ISSUES

1.Whether the lower Court can approbate and reprobate in the circumstance of this case?

2.Whether on the facts and grounds before the lower Court a case was made out for the reliefs sought?

3.Whether or not a governor of a state can be sued alongside the attorney general of the state in respect of fundamental right breach?

4.Whether a medical record can be disclosed without the consent of the patient?

RATIONES DECIDENDI

LIMITATION OF FUNDAMENTAL RIGHTS – WHEN PUBLIC HEALTH INTERESTS SUPERSEDE INDIVIDUAL RIGHTS:

“Moreover, even if the evidence of the Appellant had tangibly proved the infringement of her fundamental rights, Section 45 of the Constitution of the Federal Republic of Nigeria 1999 and Sections 26(2)(e) and 27 of the National Health Act would have availed the Respondents as they prioritise public health over an individual right in the face of public health emergency.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

CONSTITUTIONAL LIMITATIONS ON FUNDAMENTAL RIGHTS – INTEREST OF PUBLIC HEALTH:

“The provision of Section 45(1)(a) and (b) of the Constitution is illustrative in this regard. It provides thus: ’45(1) Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society – (a) In the interest of defence, public safety, public morality or public health; or (b) For the purpose of protecting the rights and freedom of other persons.'” – Per LATEEF ADEBAYO GANIYU, J.C.A.

PRECEDENCE OF PUBLIC HEALTH OVER INDIVIDUAL RIGHTS – COVID-19 PANDEMIC:

“Needless to say that, the outbreak of Covid 19 has to do with public health and any measure put in place by the Respondents to eradicate the spread of the disease cannot be considered by suspected patient, such as the Appellant as a violation of her fundamental human right because it is settled law that interest of an individual or group cannot supercede that of the state.” – Per LATEEF ADEBAYO GANIYU, J.C.A.

HEARSAY EVIDENCE – AFFIDAVITS BASED ON INFORMATION NOT WITHIN DEPONENT’S KNOWLEDGE:

“The said affidavit deposed to by Vitalis Ijezie has been rightly discountenanced by the lower Court for being in complete contravention of Section 115 of the Evidence Act, 2011. The contents of the affidavit appeared untrue and as facts not within the knowledge of the deponent, as the deponent had stated in his Affidavit that officers of the Nigerian Army were deployed to arrest him and the Appellant.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

CONFLICT IN AFFIDAVIT EVIDENCE – RESOLUTION IN FUNDAMENTAL RIGHTS CASES:

“The lower Court found the affidavits filed by the Appellant and the Respondents to be in conflict. The Court therefore proceeded to examine the Exhibits and upon careful consideration of same, the Court found that the Exhibits were not certified true copies of the documents and were both expert reports which would require expert opinion.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

NECESSARY PARTIES – DEFINITION AND APPLICATION:

“A necessary party is someone whose presence is essential for the effectual and complete determination of the issues before the Court. It is a party, in the absence of whom the claim cannot be effectually and completely determined.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

JOINDER OF STATE GOVERNOR – REPRESENTATION OF STATE INTERESTS:

“It is my considered view that the interest of the Edo State Government has been completely covered with the presence of the 3rd Respondent, the Attorney General of Edo State, as a party to the suit. At best the Governor of Edo State is a desirable party whose presence or lack of presence will not adversely affect the decision of the lower Court.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

BALANCE BETWEEN INDIVIDUAL RIGHTS AND STATE INTERESTS:

“A fundamental right is certainly a right which stands above the ordinary laws of the land. However, no fundamental right should stand above the country, state or the people.” – Per LATEEF ADEBAYO GANIYU, J.C.A.

CAUSE OF ACTION – DEFINITION AND IMPLICATIONS:

“From the definition provided by the Supreme Court, the presence of the cause of action only means that a burden is placed on the Appellant to prove her case and that the mere presence of a cause of action does not preclude the Appellant from proving her case.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

BURDEN OF PROOF IN FUNDAMENTAL RIGHTS CASES:

“The Appellant having been unable to provide credible evidence to prove her case, the burden of proof, as rightly held by the lower Court, has not been discharged.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

COVID-19 PANDEMIC – JUSTIFICATION FOR RESTRICTIVE MEASURES:

“Without mincing words, outbreak of COVID-19 was a threat to the whole world and globally formidable steps were taken to isolate whoever is inflicted with the deadly disease which is contagious and required to be nipped in the bud, in order to eliminate its widespread across the globe. Therefore, whatever legitimate measure put in place to ensure that patient suffering from this disease, is prevented from intermingling with the populace cannot be considered as a violation of the suspected patient’s Fundamental right.” – Per LATEEF ADEBAYO GANIYU, J.C.A.

NEW ISSUES ON APPEAL – PROHIBITION AGAINST RAISING NEW ARGUMENTS:

“Generally, an appeal is regarded as a continuation of the original suit rather than the inception of a new action. Because of this, in an appeal, parties are normally confined to their case as pleaded in the Court of first instance. They are not allowed to make a new and different case on appeal. They are not allowed to raise in such appeal new issues without the express leave of Court or to proffer new evidence without such leave.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

SPECIAL PROCEDURE FOR FUNDAMENTAL RIGHTS ENFORCEMENT:

“Applications for enforcement of fundamental human rights are peculiar and special in nature. The application should ordinarily be decided on the supporting affidavit and counter-affidavit and if need be further affidavit alone. There is no contemplation of the parties calling oral evidence to resolve conflicts in the affidavit. The special procedure is to facilitate the speedy release of citizens whose rights are being infringed and in such a case time is of essence in the determination of whether or not the executive infringement of a citizen’s fundamental human rights is lawful or not.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

CASES CITED

STATUTES REFERRED TO

•Constitution of the Federal Republic of Nigeria 1999 (as amended)

•Evidence Act, 2011

•National Health Act, 2014

•Fundamental Rights (Enforcement Procedure) Rules, 2009

•African Charter on Human and People’s Rights (Ratification and Enforcement) Act, 1983

•Universal Declaration of Human Rights, 1948

•Interpretation Law of Bendel State Cap. 51 Laws of Edo State 1978

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