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TEGA ESABUNOR & ANOR v. DR. TUNDE FAWEYA & ORS

MILAN (INDUSTRIES) NIGERIA LTD VS TREVI FOUNDATIONS NIGERIA LTD
April 15, 2019
EZEKIEL UKACHI V. THE STATE
May 13, 2019
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TEGA ESABUNOR & ANOR v. DR. TUNDE FAWEYA & ORS

Legalpedia Electronic Citation: LER [2019]SC.97/2009

AREAS OF LAW:
ACTION, APPEAL, CONSTITUTIONAL LAW, COURT, DAMAGES, FUNDAMENTAL HUMAN RIGHTS, JUDICIAL REVIEW, JURISDICTION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS
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 and he was taken back to the Chevron Clinic for urgent treatment by his mother. The 1st Respondent who treated the 1st Appellant found that he urgently needed blood transfusion. The 2nd Appellant and her husband made it abundantly clear to the 1st Respondent that on no account should their child be given blood transfusion 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. The next day, the learned counsel for the Commissioner of Police, Lagos State, moved an Originating Motion Exparte before the 5th Respondent which motion was brought under Section 27 (1) and (30) of the Children and Young Person’s Law Cap 25 of Lagos State. Granting the prayer sought, the Magistrates’ court ordered that: “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.” 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. The 1st Appellant got well and was discharged. The 2nd Appellant filed an application on notice at the High Court wherein she sought for the setting aside of the order made which was dismissed. The Appellants’ were not satisfied with the Ruling of the High Court and filed an appeal at the Court of Appeal which affirmed the decision of the trial Court hence, this appeal.

HELD
Appeal Dismissed

ISSUES FOR DETERMINATION
 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.

 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.

 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.

 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.

 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.

 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.

 Whether the Court of Appeal was in error when it held that the Appellants’ are not entitled to damages.

RATIONES
JURISDICTION
JURISDICTION- FUNDAMENTAL NATURE OF 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 exercise judicial powers. See Egunjobi v FRN (2012) 12SC (Pt. iv) p.148. National Union of Road Transport Workers & Anor v Road Transport Employers Asociation of Nigeria & 5 Ors (2012) 1SC (Pt. ii) p.119. 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. Bronik Motors Ltd & Anor v WEMA Bank Ltd (1983) 1SCNLR p.296. In determining jurisdiction it is only the plaintiff’s claim that is considered. Tukur v Govt of Gongola State (1989) 4NWLR (Pt.117) p.17, Obiuweubi v CBN (2011)ALL FWLR (Pt.321 p.208. Absence of jurisdiction renders the entire proceedings a nullity no matter how well it was conducted and decided”. -PER O. RHODES-VIVOUR, J.S.C.
JURISDICTION, COURT
JURISDICTION OF COURT – WHETHER THE INHERENT JURISDICTION OF COURTS ARE CONFERRED BY THE CONSTITUTION
“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. See Ajayi v Omorogbe (1993) 6 NWLR (Pt.301) p.512”
-PER O. RHODES-VIVOUR, J.S.C.
APPEAL, COURT
ISSUE FOR DETERMINATION- WHETHER THE SUPREME COURT CAN CONSIDER AN ISSUE WHICH THE COURT OF APPEAL FAILED TO CONSIDER
“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. See Agbo v State (2006) 6NWLR (Pt.977) 545, Ukwunnenyi v State (1989) 4 NWLR (Pt.114) p.131. Katto v CBN (1999) 6 NWLR (Pt.607) p.390” -PER O. RHODES-VIVOUR, J.S.C.
COURT
MISDIRECTION- WHAT CONSTITUTES MISDIRECTION?
“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.” -PER O. RHODES-VIVOUR, J.S.C.

CONSTITUTIONAL LAW
LAW- ESSENCE OF LAW
“For the essence of law is to preserve life and property and create environment for human beings to live a contented and dignified life.”
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.” -PER O. RHODES-VIVOUR, J.S.C.
FAIR HEARING
FAIR HEARING – WHAT DOES FAIR HEARING ENTAILS?
“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 . See Akande v State (1988) 3 NWLR (Pt.85) p.681. F.C.S.C. v Laoye (1989) 2NWLR (Pt.106) p.652” -PER O. RHODES-VIVOUR, J.S.C.
FUNDAMENTAL HUMAN RIGHTS, CONSTITUTIONAL LAW
RIGHT OF AN ADULT TO ACCEPT OR REFUSE MEDICAL TREATMENT- WHETHER AN ADULT HAS RIGHT TO ACCEPT OR REFUSE MEDICAL TREATMENT
“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).” -PER O. RHODES-VIVOUR, J.S.C.
FUNDAMENTAL HUMAN RIGHTS, CONSTITUTIONAL LAW
RIGHT TO FREEDOM OF CHOICE – INSTANCE WHERE THE LAW WOULD STEP IN TO PROTECT AN INDIVIDUAL FROM ABUSE OF HIS RIGHT
“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. 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. 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.” -PER O. RHODES-VIVOUR, J.S.C.
ACTION, COURT, JUDICIAL REVIEW
WRIT OF CERTIORARI – INSTANCES WHERE THE COURT WILL GRANT A WRIT OF CERTIORARI
“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.
See Ekpo v Calabar Local Govt Council (1993) 3 NWLR (Pt.281) p. 324. Nnadika v Ejire (1994) 1NWLR (Pt.320) p.295. 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.” -PER O. RHODES-VIVOUR, J.S.C.
DAMAGES
AWARD OF DAMAGES- BASIS FOR AN AWARD OF DAMAGES BY A TRIAL COURT
“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.” -PER O. RHODES-VIVOUR, J.S.C.
EVIDENCE, COURT, PRACTICE AND PROCEDURE
CONCURRENT FINDINGS OF FACTS BY LOWER COURTS – ATTITUDE OF THE SUPREME COURT TO INTERFERENCE WITH THE CONCURRENT FINDING OF FACTS BY LOWER COURTS
“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. See Adekoya v State (2012) 9 ANWLR (Pt.1306) p. 539; Egbo v State (1982) 9SC p. 74.” -PER O. RHODES-VIVOUR, J.S.C.
FUNDAMENTAL HUMAN RIGHTS, CONSTITUTIONAL LAW, COURT
RIGHT TO MEDICAL TREATMENT- INSTANCE WHERE A COURT WOULD INTERVENE IN A DECISION ON THE RIGHT TO MEDICAL TREATMENT
“It is instructive to note that 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. See the case of Medical And Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2001) 7 NWLR (Pt. 711) 206).
Note also that the Child’s Right Act, LFN 2003 is replete with judicial powers to ascertain the survival and total well-being of the child. Section 13 of the Act provides particularly for the right to health and health Services of the child. Section 13(2) of the 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) provid.es 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.”
-PER J.I. OKORO, J.S.C.
JURISDICTION, PRACTICE AND PROCEDURE
ISSUE OF JURISDICTION- WHETHER AN ISSUE OF JURISDICTION CONSTITUTES AN EXCEPTION TO THE RULE ON THE REQUIREMENT OF LEAVE IN RAISING A NEW ISSUE ON APPEAL
“As my Lord indicated in the leading judgement, the issue of jurisdiction is so important that it could be raised at any stage of the proceedings, even on appeal before this Court. This Court dealt with this issue in Wema Securities and Finance Plc v NAIC (2015) LPELR 24833 (SC). According to the Court [per Nweze, JSC]:… the issue of jurisdiction constitutes an exception to [the] general principle for it [such an issue of jurisdiction] could be raised for the first time before an appellate Court, with or without leave, Obiakor and Anor v The State [2002] 10 NWLR (pt. 776) 612, 626 G; Gaji v. Paye [2003] 8 NWLR (pt. 823) 583; Oyakhire v The State [2006] 7 SCNJ 319, 327-328; [2006] 15 NWLR (pt.1001) 157; Okoro v. Nigerian Army Council [2000] 3 NWLR (pt. 647) 77, 90 ??? 91; Ajakaiye v. Military Governor, Bendel State [1993] 9 SCNJ 242; Yusuf v. Cooperative Bank Ltd [1994] 7 NWLR (pt. 359) 676….. The reason is not far to seek. Due to its fundamental nature, it is exempted from the disabilities and restrictions which hamper other legal points from being canvassed or agitated for the first time on appeal, Western Steel Works Ltd and Anor. v. Iron Steel workers Ltd [1987] 2 NWLR (pt 179) 188. In effect, such an issue of jurisdiction could always be raised without leave, Aderibigbe v Abidoye [2009] 10 NWLR (pt. 1150) 592, 615 paragraphs. C – G; Comptroller Nigeria Prisons Services Lagos v Adekanye [2002] 15 NWLR (pt. 790) 33; Obatoyinbo v Oshatoba [1996] 5 NWLR (pt. 450) 531; Management Enterprises Ltd v Otusanya [1987] 2 NWLR (pt 179) 188. In consequence, it can never be too late in law to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration, Magaji v Matari [2000] 8 NWLR (pt 670) 722, 735; Akegbejo v Ataga [1998] 1 NWLR (pt 534) 459, 465; State v Onagoruwa [1992] 2 SCNJ 1; A.G., Lagos v Dosunmu [1989] 3 NWLR (pt 111) 552. Indeed, leave of the appellate Court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so, Obikoya v. The Registrar of Companies [1975] 4 SC 31, 35; NNPC v Orhiowasele and Ors (2013) LPELR -20341 (SC); Elabanjo v Dawodu [2006] 15 NWLR (pt. 1001) 76; Ndaeyo v. Ogunaya [1977] 1 SC 11; Chacharos v. Ekimpex Ltd [1988] 1 NWLR (pt. 68) 88; Bakare v. A.G. Federation [1990] 5 NWLR (pt. 152) 516; Oyakhire v. State [2006] 15 NWLR (pt. 1001) 157; Oloriode v. Oyebi [1984] 1 SCNLR 390; Ezomo v. Oyakhire [1985] 1 NWLR (pt 2) 193; Akegbejo v. Ataga [1998] 1 NWLR (pt 534) 459, 468; 469; Bronik Motors v. Wema Bank Ltd [1983] 6 SC 158; Senate President v Nzeribe [2004] 41 WRN 60; Odiase v Agho (1972) 1 All NLR (pt 1) 170; Dickson Moses v The State [2006] 7 SCM 137, 169. Thus, although it is desirable that preliminary objections on issues of jurisdiction be raised early, once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. What is more, it is always in the interest of justice, where necessary, to raise jurisdictional issues so as to save time and costs and to avoid a trial which may, ultimately, amount to a nullity, Osadebay v. A-G., Bendel State [1991] 1 NWLR (pt.169) 525; Owoniboys Tech, Services Ltd v John Holt Ltd (1991] 6 NWLR (pt.199) 550; Okesuji v. Lawal [1991] 1 NWLR (pt.170) 661; Katto v. Central Bank of Nigeria [1991] 9 NWLR (pt. 214) 126; Utih v. Onoyivwe [1991] 1 NWLR (pt.166) 166). [pages 40-44; D- E; italics supplied for emphasis].
-PER C.C. NWEZE, J.S.C.
ACTION, JUDICIAL REVIEW
CERTIORARI- INSTANCES WHERE AN ORDER OF CERTIORARI WOULD LIE
“The position is that where it is established before the High Court that an inferior Court with limited powers has abused that power, and that such abuse does and continues to affect prejudicially the rights of a citizen, Certiorari will, certainly, 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.
Thus, 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 see C.I.C. of Armed Forces V. P.S.C., Mid-Western State & Anor (1974) NSCC (Vol. 9) 509, wherein Coker, JSC, observed:
“It is generally and usually stated that Certiorari will lie to correct excess of jurisdiction or want of it in the execution of its duties by inferior Courts of record or statutory bodies or Tribunal which exercise judicial or quasi-judicial functions. This description of the scope of Certiorari certainly obscures, as it has always done, the amplitude of its utility.”
In Judicial Review of administrative Action by S A. De Smith, Third Edition at page 347 the following statement of the use of Certiorari with which we respectively agree appears:
“Occasionally, Judges will speak as if the availability of Certiorari or prohibition depends on whether the act impugned is judicial or imports an implied duty to act judicially; but it has also been held that it is enough for the competent authority to be under a `duty to act fairly’. All the recent English cases in which such terminology has been used have involved alleged breaches of natural justice or non-binding decisions. None has been a straightforward case of want or excess of jurisdiction”
– PER A.A. AUGIE, J.S.C.

STATUTES REFFERED TO
Child’s Right Act, LFN 2003
Constitution of the Federal Republic of Nigeria, 1999
Police Act, 2004

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