Esabunor & Anor v. Dr. Tunde  Faweya & Ors (2019) LPELR

CASE 

Esabunor & Anor v. Dr. Tunde  Faweya & Ors (2019) LPELR-46961(SC)

Court:

Supreme Court of Nigeria

Date:

April 12, 2019

Justices:

Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC (delivered the lead judgment)

Facts of the case:

Mrs. Rita Esabunor gave birth to Tega Esabunor on April 19, 1997 at the Chevron Clinic in Lagos. On May 11, 1997, the infant became quite unwell and was returned to the clinic. Dr. Tunde Faweya diagnosed the youngster with acute anemia and advised an immediate blood transfusion. Mrs. Esabunor and her husband, both Jehovah’s Witnesses, declined authorization for the transfusion due to religious beliefs. Concerned for the child’s safety, Dr. Faweya reported the incident to the authorities. The Commissioner of Police made an ex parte application to the Chief Magistrate’s Court under Sections 27(1) and 30 of the Children and Young Persons Law, Cap. 25, Laws of Lagos State, 1994. The court issued an order allowing the hospital to provide essential medical treatment, including blood transfusions, to save the child’s life.

Following the child’s successful transfusion and recuperation, Mrs. Esabunor filed a lawsuit against the respondents, citing infringement of her and her child’s fundamental rights, particularly the right to freedom of religion.

Procedural History:

The High Court dismissed the appellants’ claims.

The Court of Appeal upheld the High Court’s decision.

The appellants appealed to the Supreme Court.​

Issues for Determination:

• Whether the Chief Magistrate had jurisdiction to grant the ex parte order permitting medical treatment without parental consent.
• Whether the appellants’ fundamental rights, including the right to freedom of religion, were violated.
• Whether the remedy of certiorari was appropriate to quash the Chief Magistrate’s order

Supreme Court’s Decision:

The Supreme Court dismissed the appeal, holding that:​

• Jurisdiction: The Chief Magistrate had inherent jurisdiction to make orders preventing the commission of a crime, including the potential death of a child due to denial of necessary medical treatment. The court’s intervention was justified to protect the child’s right to life.
• Fundamental Rights: While adults have the right to refuse medical treatment on religious grounds, this right does not extend to making decisions that could endanger the life of a child. The child’s right to life supersedes parental rights to freedom of religion in life-threatening situations.
• Certiorari: The remedy of certiorari was not applicable as there were no errors on the face of the Chief Magistrate’s proceedings, and the appellants were not denied fair hearing. The lower courts correctly refused to quash the order.

Detailed Legal Analysis

Parental Rights vs. Child Welfare

The court emphasized that while parents have rights to make decisions for their children, these rights are not absolute. In situations where a child’s life is at risk, the state has a duty to intervene to protect the child’s welfare. This aligns with the principle that the best interests of the child are paramount in all actions concerning children.  This principle is emebeded in the Child Rights Act 2003.

In every action concerning a child, whether undertaken by an individual, public or private body the best interest of the child shall be the primary consideration. [1]

The Nigerian constitution also reflects this principle, particularly in its provisions related to the protection of children. The state has a duty to ensure the well-being of children, and it can intervene in situations where parents or guardians fail to provide adequate care or protection. The Nigerian Constitution enjoins the State to direct its policy towards ensuring that there are adequate medical and health facilities for all persons and that children, young persons and the age are protected against any exploitation whatsoever, and against moral and material neglect.[2] Furthermore, The  CRA (child right act) recognizes the child’s right to health and medical care.[3]

While parents have rights and responsibilities towards their children, these rights are not absolute. The state has a duty to intervene when a child’s life is at risk due to parental neglect, abuse, or abandonment.[4] When the choice is contrary to the best interests of the child, the state can intervene, acting in accordance with the parens patriae doctrine (which in Latin means father of the country). In law, this refers to the power of the state to use surveillance and intervene against an abusive or neglectful father and to act as the “father” of any child or person in need of protection. The CRA of Nigeria provides for the duty to provide health best attainable care for the child is imposed collectively on government, parent, guardian, institution, service, agency, organization or body responsible for the care of the child.[5]

Therefore, the right of the child to health is likely to be breached by failure of his parents to carry out their responsibility on the child, the government or institution or individual responsible for providing the child such health care can in the best interest of the child intervene and ensure that the child’s health is protected. The overall theme of the principle is that due focus and priority should be given to the political, economic and social interests of the child whenever policies, laws and decisions are made which directly or indirectly affect children.  The principle of the best interests of the child is a core concept in child rights law, and it is the guiding principle in all actions concerning children. This means that the court and other authorities must always consider what is in the best interest of the child when making decisions about their care, custody, or welfare.[6]

The courts have in no small measure reduced abuse of parental authority over decisions relating to the health of their children by its interventionist approach to issues concerning the child. Though seeking approval from the court is commendable to avoid arbitrary actions to be taken on the child against parental rights., applying to and waiting for the court to make an order before certain decisions are taken by health providers in treating a sick child may be a futile effort where the child’s situation is extremely bad and cannot survive an iota of delay in the medical process. The courts, particularly, in developing countries like Nigeria are fraught with so many problems ranging from, lack of infrastructural facilities to shortage of manpower to expedite proceedings. The rigorous steps taken by Dr. Tunde in Esabunor’s case just to be authorized to carry out the blood transfusion could have averted. The law has already given powers to such health providers by virtue of  section 1 of the CRA to act in the best interest of the child. Once the person responsible for providing health to the child is satisfied that the treatment to be administered to the child is in his best interest, there may not be need to first go to court before saving the life of the child particularly, in life threatening emergency situations. This is therefor to prove that Dr. Tunde in Esabunor’s case was never in the wrong and not out of line because his act was in the best interest of the child.

Right to Life Supersedes Religious Beliefs

The judgment reaffirmed that the right to life is the most fundamental of all rights. In circumstances where religious beliefs conflict with the preservation of life, especially that of a child, the right to life takes precedence. The court held that denying a child life-saving treatment based on religious grounds constitutes a violation of the child’s right to life.

The right to life is often viewed as the cornerstone of all other human rights. It’s the basic condition for individuals to exercise and enjoy other freedom.[7] International human rights law, such as the Convention on the Rights of the Child, specifically recognizes the inherent right to life for every child.[8] While religious freedom is a fundamental right, it is not absolute and can be limited when it infringes on the rights of others, particularly the right to life. This principle is reflected in legal systems around the world. In many jurisdictions like Nigeria, legal decisions involving children are guided by the principle of “best interests of the child,” which often prioritizes the child’s physical and psychological well-being. This principle can be used to justify interventions that might otherwise be seen as infringing on religious practices.

Inherent Jurisdiction of the Court

The Supreme Court recognized that courts possess inherent jurisdiction to make orders necessary to prevent the commission of crimes, including actions that could lead to the death of a child. The Chief Magistrate’s order was within this jurisdiction, aimed at preventing a potential criminal act resulting from the denial of essential medical cared. In many states, particularly those that have domesticated the Child’s Rights Act, the Magistrate Court is designated as a court of summary jurisdiction, and in some cases, it also functions as the Family Court (at the lower level).

For example, there shall be established for each state of the federation and the Federal Capital Territory, Abuja a court to be known as the family court, for the purpose of hearing and determining matters related to children.[9]

Furthermore, the  court to have two levels

• The court as a division of the High court at the High court level:
• The court as a magistrate court at the magistrate level[10]

The court shall have unlimited jurisdiction to hear and determine

• Any civil proceeding in which the existence or extent of a legal rigjht, power duty, liability privilege interest, obligation or claim in  respect of a child is in issue; and
• Any criminal proceeding involving or relating to any penalty, forefeirure, punishment, or other liability in respect of an offence committed by a child, against a child or against the interest of a child.[11]

Also, there is provision for protection of children[12]  also there is provision for that an application can be made to the court  for an order  if it appears to the court  that child who is being looked after  is suffering or likely to suffer. [13] This  application may be made ex parte. [14]In Nigeria, ex parte orders are made by a court without notifying the other party, usually where urgent intervention is needed to prevent harm or injustice. However, the court must have jurisdiction over the subject matter.

Application of Certiorari

The court clarified that certiorari is a discretionary remedy used to quash judicial acts where there is a lack of jurisdiction, denial of fair hearing, or errors on the face of the record. In this case, none of these conditions were met, and therefore, the application for certiorari was rightly dismissed by the lower courts.

Conclusion

The Supreme Court’s decision in Esabunor v. Faweya underscores the legal principle that the welfare and best interests of a child take precedence over parental rights, especially in life-threatening situations. The judgment serves as a critical precedent in balancing religious freedoms with the state’s obligation to protect vulnerable individuals, particularly children.

Reference(S):

[1] Child Right Act 2003, s 1

[2]Constitution of the Federal Republic of Nigeria, s17(3)(d) & (f)

[3] Child Right Act 2003, s 13

[4] Linda Oti-Onyema  ‘Parental Responsibility over Child’s Health: Dispensing With Court Proceedings In Emergency Situations’  (2020)11(1) NAUJILJ

[5] Child Right Act 2003, s 13(2)

[6] Convention on the right of a child. Article 6 (1)&(2)

[7] Oti-Onyema n(4)

[8] Convention on the right of a child n(6)

[9] Child Rights Act 2003, s 149

[10] Child Rights Act, s 150

[11] Child Rights Act, s 151(1)

[12] Child Rights Act, s 167

[13] Child Rights Act, s 167(1)

[14] Child Rights Act, s 167 (3)