794

Esabunorv.Faweya8September2008

1.TEGA ESABUNOR

(Suing by his next friend Mrs. Rita Esabunor)

2.RITA ESABUNOR

V.

1.DR. TUNDER FAWEYA

2.CHEVRON NIGERIA LIMITED

3.SUPOL D. YAKUBU

4.COMMISSIONER OF POLICE, LAGOSSTATE

5.M. OLOKOBA, ESQ.

(Chief Magistrate Grade I Lagos State)

COURT OF APPEAL

(LAGOS DIVISION)

CA/L/226/2003

PAUL ADAMU GALINJE, J.C.A. (Presided and Read the LeadingJudgment)

HUSSEIN MUKHTAR, J.C.A.

ADAMU JAURO, J.C.A.

THURSDAY, 19TH JUNE, 2008

ADMINISTRATIVE LAW - Prerogative writs - Certiorari - Meaningand purpose of - When will issue - When
it will not.

CERTIORARI - Meaning and purpose of - Certiorari - When willissue - When it will not.

CONSTITUTIONAL LAW - Medical treatment - Right of patient toobject to medical treatment - Limits
thereto - Power of courtwith respect thereto.

CONSTITUTIONAL LAW - Right to freedom of religion and religiousbelief - Limits thereto - Whether
extends to refusal of bloodtransfussion to save life.

[2008]12NWLR

Esabunorv.Faweya795

CONSTITUTIONAL LAW - Right to life - Constitutional nature of- When a person can be deprived of.
COURT - Issues before court - Duty on court to make findings onall issues placed before it - Exception
thereto.

COURT - Medical treatment - Right of patient to object to medicaltreatment (blood transfusion) - Limits
thereto - Power of courtin relation thereto.

COURT - Prevention of crime - Duty on court in relation thereto.

CRIMINAL LAW AND PROCEDURE - Prevention of crime - Dutyon court in relation thereto.

DAMAGES - Award of damages - Principles governing.

FUNDAMENTAL RIGHTS - Right to freedom of religion andreligious belief - Limits thereto - Whether
extends to refusal ofblood transfussion to save life.

FUNDAMENTAL RIGHTS - Right to life - Constitutional nature of-When a person can be deprived of life.

JUDGMENT AND ORDER - Lawful order by inferior court -Whether subject to judicial review.

MEDICAL LAW - Medical practitioners code of ethics - Purportof - Duties enjoined on doctors to preserve
life.

MEDICAL LAW - Medical treatment - Right of patient to object tomedical treatment (blood transfussion) -
Limits thereto - Dutyon court and medical doctor in relation thereto

NOTABLE PRONOUNCEMENT - On Legality of religious beliefthat has no regard for human life.

NOTABLE PRONOUNCEMENT - On Duties on Court and Policein prevention of crime.

POLICE - Duties and powers of police - Nature and scope of.

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PRACTICE AND PROCEDURE - Issues before court - Duty on courtto make findings on all issues placed
before it - Exception to.

Issue:

Whether the lower court was right when it refusedthe appellants’ application for an order
of certiorariwhich sought to quash the entire proceedingsincluding the rulings and orders made on the
12thand 21st May 1997 in suit No. M/73/97 by a ChiefMagistrate

Facts:

The 2nd appellant was the mother of the 1st appellant,who was born on 19th April, 1997 at the Chevron
Clinic,Lekki Peninsula, Lagos. On 11th May, 1997, the 1st appellantwas sick and was taken to that Clinic
which was owned bythe 2nd respondent for treatment. The 1st respondent whowas a medical doctor
attached to the clinic examined the 1stappellant and found that the 1st appellant was suffering
fromsevere infection which led to severe shortage of blood in hisbody. He therefore placed him on
antibiotics and by themorning of 12th May, 1997, it was clear that the antibioticswere not working as
the 1st appellant was convulsing andcould not breathe properly and as such he was placed onoxygen
therapy.

It was at this stage that medical personnel at theChevron Clinic believed that without blood
transfusion,the 1st appellant would die. The 1st respondent thereforeinformed the 2nd appellant that
the life of the 1st appellantwas in danger and only a blood transfusion could save hislife. However, the
2nd appellant refused to consent to thetransfusion of blood on the ground that she was a
Jehovah’switness and blood transfusion was forbidden by her religion.

The development was reported to the police by themanagement of the 2nd respondent. Thereafter, the
3rdrespondent, on behalf of the 4th respondent applied for andobtained an order from the Magistrate’s
Court presided overby the 5th respondent, authorizing the medical authoritiesof the 2nd respondent to
do all that was necessary for theprotection of the life and health of the 1st appellant. The orderof the
court was executed and the 1st appellant’s conditionimproved so considerably that he was discharged a
few dayslater.

By an application dated the 15th May, 1997, the2nd appellant asked the 5th respondent to set asidethe
order of 12th May, 1999 on the ground that itwas fraudulently obtained. The application was

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Esabunorv.Faweya797

dismissed as the order, having been complied with, couldno longer be set aside.

The appellants thereafter applied to the High Courtof Lagos State for an order of certiorari removing into
theHigh Court the entire proceedings including the rulings/orders made by the 5th respondent for the
purpose of beingquashed. The 1st appellant also claimed N10,000,000.00 (TenMillion Naira) damages
against the 1st and 2nd respondents forunlawfully injecting or transfusing blood into his body withouthis
consent and/or consent of the 2nd appellant while the 2ndappellant claimed N5,000, 000. 00 (Five
Million Naira) fordenial of parental right. All the reliefs of the appellants weredismissed by the High
Court.

Dissatisfied with the decision of the High Court, theappellants appealed to the Court of Appeal.

Held (Unanimously dismissing the appeal):

1.On Meaning of certiorari -

Certiorari is a writ of common law origin issued by asuperior court to inferior court requiring the latter
toproduce a certified record of a particular case triedtherein. The writ is issued in order that the
courtissuing the writ may inspect the proceedings anddetermine whether there have been
irregularities.(P.808, paras. G-H)

2. On Purpose of certiorari -

Certiorari is a prerogative writ of common laworigin available to the High Court in its exercise ofits
supervisory control over inferior tribunals orcourts to ensure that these tribunals or courts donot
exceed their jurisdiction or do not commit anyirregularities which will render their decisions
bad.When such writ is issued and the proceedings of theinferior tribunal is produced for inspection,
the HighCourt has power to quash such proceedings wheredue cause is disclosed for doing so.
[Nwaoboshi v.MILAD, Delta State (2003) 11 NWLR (Pt. 831) 305referred to .] (Pp.808-809, paras. H-B)

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NigerianWeeklyLawReports8September2008

3.On Whether a lawful order can be subject of judicialreview -

A lawful order rightly and timeously made by aninferior court cannot be subject of a judicial
review.(P.812, para. E)

4.On Duties and powers of Police -

The duties and powers of the Police are:-

(a)the prevention and detection of crime;

(b)the apprehension of offenders;

(c)the preservation of law and order;

(d)the protection of property; and

the enforcement of all laws and regulations withwhich they are directly in charge. In the courseof
discharging their responsibility, the policeare permitted to take whatever steps that are(e)desirable to
achieve their goal.

(P.809, paras. F-G)

5.On Right to life -

By virtue of section 33(1) of the 1999 Constitution,every person has a right to life and no one shall
bedeprived intentionally of his life, save in the executionof the sentence of a court in respect of a
criminaloffence of which he has been found guilty in Nigeria.(P.809, para. H)

6.On Duty enjoined on doctors by code of ethics forMedical Practitioners-

The Code of Ethics of the Medical Profession,otherwise known as Published Code of Ethics, enjoinsa
doctor not to allow anything including religion tointervene between him and his patient and that he
mustalways take measures that lead to the preservationof life. This code of ethics places a great
burden onmedical practitioners in such a way that they cannotaccede to the wish of a citizen who will
allow a childto die on account of religious belief (P.810, paras. A-B)

[2008]12NWLR

Esabunorv.Faweya799

7.NOTABLE PRONOUNCEMENT

On Duties on Police and court in prevention of crime -

Per GALINJE, J.C.A at page 810, paras. C-D:

“The procedure adopted at the Chief MagistrateCourt may be inelegant, but it was done bythe Police
in order to prevent a commissionof crime. It is a procedure that is based oncriminal law and the
essence was to invoke thejurisdiction of the court. In the circumstanceof the case, the court could
have even actedon verbal application to prevent what wasobviously a crime that was to be
committed.For the essence of law is to preserve life andproperty, create environment for human
beingsto live a contented and dignified life.”

8. On Limits to right to religious belief-

Although a person has a right to choose a course forhis or her life, that right is not available to
determinewhether her son should live or die on account ofher religious belief. In the instant case, the
1 st and2 nd respondents acted upon an order of court dulyprocured by the Commissioner of Police on
behalfof the State. The authority or right of the appellantsto withhold consent to the blood
transfusion wastherefore overridden by the court order. [Medical andDental Practitioners Disciplinary
Tribunal v. Okonkwo(2001) 7 NWLR (Pt. 711) 206 referred to.] (Pp.810,para. E; 811, para. B)

9.On Limits to right to freedom of thought, conscience orreligion -

.The right to freedom of thought, conscience orreligion implies a right not to be prevented,
withoutlawful justification, from choosing the course ofone’s life, fashioned on what one believes in,
and aright not to be coerced into acting contrary to one’sreligious belief. The limit of these freedoms in
allcases are where they impinge on the right of others

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NigerianWeeklyLawReports8September2008

or where they put the welfare of society or public health injeopardy. The sum total of the right of
privacy andof freedom of thought, conscience or religion whichan individual has, is that an individual
should be leftalone to choose a course for his life, unless a clearand compelling overriding state
interest justifiesthe contrary. [Medical and Dental PractitionersDisciplinary Tribunal v. Okonkwo (2001)
7 NWLR(Pt.711) 206 referred to.] (P. 810, Paras. E-H)

10.On Power of court to rule against patient’s objection tomedical treatment -

.If a decision to override the decision of a competentpatient not to submit to blood transfusion or
medicaltreatment on religious grounds is to be taken on thegrounds of public interest or recognised
interest ofothers, such as dependent minor children, it is to betaken by the courts. In the instant case,
the 1 st and2 nd respondents acted upon an order of court dulyprocured by the Commissioner of
Police on behalfof the State. The authority to withhold consentto the blood transfusion was in the
circumstanceoverridden by the court order. (Pp. 810-811, paras.H-B)

11.On Duty on court to make findings on all issues placedbefore it -

A court has a duty to make findings on all issuesplaced before it and limit itself thereto.
However,where the determination of an issue in favour of aparty who raised it will not affect the
result of anappeal, such issue is of no value and the court needsnot consider it. In the instant case, the
issues raisedat the High Court were irrelevant and that court’sfailure to consider them was not fatal to
its decision.[R.E.A.N Plc. v. Anumnu (2003) 6 NWLR (Pt. 815)52; Udengwu v. Uzuegbu (2003) 13 NWLR
(Pt. 836)136; Okereke v. Nwankwo (2003) 9 NWLR (Pt. 826)592 referred to .] (P.811, paras. B-D)

[2008]12NWLR

Esabunorv.Faweya801

12.On Principle governing award of damages

Damages are not awarded as a matter of course.Award of damages must follow events. In the
instantcase, there was no event before the trial court thatwould have attracted damages since no
proof waslaid for such a claim. (Pp.811-812, paras. H-A)

13.NOTABLE PRONOUNCEMENT:

On Legality of a religious belief that has no regard forhuman life

Per GALINJE, J.C.A. at page 811, paras. E-F:

“From the history of this case, I entertain nodoubt in my mind that the lower court wasright when it
refused to grant the applicationfor an order of certiorari. The 2 nd appellant’sreligious belief had no
bearing in the wantondissipation of the 1 st appellant’s life. Clearly, the1 st appellant, being an infant,
was incapable ofgiving consent to die on account of the religiousbelief of the 2 nd appellant. The 2 nd
appellant’sdesire to sacrifice appellant’s life is an illegaland despicable act, which must be
condemnedin the strongest terms”

Nigerian Cases Referred to in the Judgment:

A.P.P. v. Ogunsola (2002) 5 NWLR (Pt. 761) 484

African Newspapers Nig. Ltd. v. F.R.N (1985) 2 NWLR (Pt.6) 137

Akingboye v. Salisu (1999) 7 NWLR (Pt. 611) 434

Angbazo v. Sule (1996) 7 NWLR (Pt. 461) 479.

Ezenwa v. Bestway Elect. Mfg. Co. Ltd. (1999) 8 NWLR(Pt. 613) 61

Ifeanyi Chukwu Osondu Ltd. v. Soleh Boneh (Nig.) Ltd. (2000)5 NWLR (Pt. 656) 322

J.C Ltd. v. Ezenwa (1996) 4 NWLR (Pt. 443) 391

M.D.P.D.T v. Okonkwo (2001) 7 NWLR (Pt. 711) 206

Ndili v. Akinsunmade (2000) 8 NWLR ((Pt. 668) 293

Nwaoboshi v. Mil Adm., Delta State (2003) 11 NWLR (Pt.831) 305

Odunayo v. State (1972) 8-9 SC 290

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NigerianWeeklyLawReports8September2008

Ogolo v. Ogolo (1997) 7 NWLR (Pt. 512) 310

Ogunmokun v. Mili Ad., Osun State (1999) 3 NWLR (Pt.594) 261

Okereke v. Nwankwo (2003) 9 NWLR (Pt.826) 592

R.E.A.N. Plc v. Anumnu (2003) 6 NWLR (P. 815) 52

U.B.A Ltd. v. Onagoruwa (1996) 3 NWLR (Pt. 439) 700

Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136

Ukejianya v. Uchendu (1950) 13 WACA 45

Ukpo v. Adede (2001) 9 NWLR (Pt. 717) 203

Univ. of Agric., Markurdi v. Jack (2000) 11 NWLR (Pt.679) 658

Uwah Printers (Nig.) Ltd. v. Umoren (2000) 15 NWLR (Pt.689) 78

Zeani v. Ekwealu (1961) All NLR 428.

Nigerian Statutes Referred to in the Judgment:

Children and Young Persons Laws of Lagos State, Cap25, Ss. 27(1), 30

Constitution of the Federal Republic of Nigeria, 1999,Ss. 33(1), 214

Criminal Code, Ss. 311, 339, 341

Police Act, Cap, P. 19, Laws of the Federation ofNigeria, 2004, S.4

Nigerian Rules of Court Referred to in the Judgment:

Magistrate Court Rules of Lagos State, 0.2 2(1)

Book Referred to in the Judgment:

Black’s Law Dictionary, 6th Edition

Appeal:

This was an appeal against the decision of High Court ofLagos State refusing the appellants’ application
for certiorariin respect of the proceedings of the Magistrate Court ofLagos State. The Court of Appeal, in
a unanimous decision,dismissed the appeal.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal wasbrought: Court of Appeal, Lagos

Names of Justices that sat on the appeal:Paul Adamu Galinje, J.C.A.(Presidedand Read the Leading
Judgment)

[2008]12NWLR

H
G

Esabunorv.Faweya(Galinje,J.C.A.)803

Hussein Mukhtar, J.C.A; Adamu Jauro J.C.A.

Appeal No.: CA/L/226/2003

Date of Judgment: Thursday, 19th June, 2008

Names of counsel: Mr. D.N. Odiba (with him, Mr. J.Etieyibo and O. Olashoju [Miss])- for the Appellants

Mr. Ladipo Soetan (with him, Abiola Olaitan[Miss])- for the 1 st and 2 nd Respondents

3-5 th Respondents unrepresented

High Court:

Name of the High Court: High Court of Lagos State,

Name of the Judge: Oyefesobi, J.

Date of Judgment: Wednesday, 30th May, 2001.

Magistrate Court:

Name of the Magistrate Court - Magistrate Court No.1, Igbosere

Name of the Magistrate: M. Olokoba, Esq, ChiefMagistrate Grade 1

Suit No.: M/73/97

Dates of Rulings: Monday and Wednesday, 12th and21st May, 1997

Counsel:

Mr. D.N. Odiba (with him, Mr. J. Etieyibo and Olashoju,[Miss]) - for the Appellants

Mr. Ladipo Soetan (with him, Abiola Olaitan, [Miss]) -for the 1 st and 2 nd Respondents

3rd-5th respondents unrepresented.

GALINJE, J.C.A. (Delivering the Leading Judgment): This isan appeal against the decision of Oyefesobi, J.
of the LagosHigh Court, which was delivered on the 30th May, 2001.
The facts of the case are straightforward and are ablyset out in the 1st and 2nd respondents’ brief of
argument. Iwill do more than to recount them briefly.

The 2nd appellant herein is the mother of the 1st appellantwho was born on the 19th April, 1997 at the
Chevron clinic, LekkiPennisula, Lagos. On the 11th of May, 1997, 1st appellant was sick

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NigerianWeeklyLawReports8September2008(Galinje,J.C.A.)

and was taken to that clinic, which is owned by the 2ndrespondent, for treatment. The 1st respondent, a
medicaldoctor attached to the clinic examined the 1st appellant andfound that he was suffering from
severe infection which ledto severe shortage of blood in his body. He was placed onantibiotics and by
the morning of 12th May, 1997 it was clearthat the antibiotics were not working as the 1st appellant
wasconvulsing and could not breath properly as such he wasplaced on oxygen therapy.

At this stage, the medical personnel at the ChevronClinic believed that without blood transfusion the
1stappellant would die. The 1st respondent informed the 2ndappellant that the life of the 1st appellant
was in danger andonly a blood transfusion could save his life. The 2nd appellantrefused to consent to the
transfusion of blood on the groundthat she was a Jehovah’s Witness and blood transfusion wasforbidden
by her religion.

The 1st respondent informed the management of the 2ndrespondent of the development. The 2nd
respondent in turnreported the development to the police. The 3rd respondenton behalf of the 4th
respondent applied for and obtainedan order from the Magistrate’s Court presided over by the5th
respondent, authorising the medical authorities of the2nd respondent to do all and everything necessary
for theprotection of the life and health of the 1st appellant.

The order of the court was executed and the 1stappellant’s condition improved so considerably that he
wasdischarged a few days later.

By an application dated the 15th May, 1997, the 2ndappellant asked the 5th respondent to set aside his
order of 12thMay, 1997 on the ground that it was fraudulently obtained.This application was dismissed
on the 21st May, 1997 on theground that the order having been complied with could nolonger be set
aside.
The appellant’s application to the High Court of LagosState for an order of certiorari, removing into the
High Courtthe entire proceedings including the rulings/orders made onthe 12th and 21st of May, 1997
by the 5th respondent hereinfor the purpose of being quashed was refused and dismissed.Also
dismissed by the lower court was the 1st appellant’s claimfor Ten Million Naira (N10, 000,000.00)
damages against the1st and 2nd respondent for unlawfully injecting or transfusingblood into his body
without his consent and/or the consentof the 2nd appellant and Five Million Naira (N5, 000.000.00)claim
by the 2nd appellant for denial of parental right.

It is against the aforementioneddecision of the High Court, the

[2008]12NWLR

Esabunorv.Faweya(Galinje,J.C.A.)805

appellants have appealed to this court. Their notice ofappeal dated 20th August, 2001 and filed on the
22nd August,2001 contains ten grounds of appeal. (The notice and groundsof appeal are pages 164-172
of the record of appeal).

In line with the relevant rules of this court, the appellantsand the 1st and 2nd respondents filed and
exchanged briefs ofargument. The 3rd, 4th and 5th respondents did not file briefsof argument and so
were not heard in argument when thisappeal was heard.

The appellants’ joint brief of argument is dated and filedon the 3rd of June, 2003, while the 1st and 2nd
respondents’joint brief of argument is dated 31st July, 2003 and filed onthe 1st of August, 2003. The
appellants’ reply brief is dated18th September, 2003 and filed on the 19th September 2003.

When the appeal came up for hearing on the 30th April,2008, learned counsel adopted parties’
respective briefs ofargument.

Mr. Daniels N. Odibe, learned counsel for the appellant,formulated four issues for determination of this
appeal atpages 2-3 of the appellants’ brief of argument. These issuesread as follows:

“1. Whether the learned judge failed to properlyappreciate and consider all the grounds for
theapplication for certiorari before him and the issuesarising for determination therefrom.
2.Whether the learned judge was right in holdingthat the 5th respondent was sitting as a juvenilecourt
and therefore had jurisdiction to entertainthe matter before it.

3.Whether the relief of certiorari sought by theappellants in the instant case was proper.

4.Whether the learned judge was right to havedismissed the appellants’ claims for damages.”

Ladipo Soetan, Esq, of counsel for the 1st and 2ndrespondents, in his brief argued the 1st and 2nd
respondents’case under two issues, namely:-

1.Whether in the circumstances of the suit theappellants are entitled to an order of certiorari.

2.Whether the appellants are entitled to damages.

The 1st and 2nd respondents’ issues for determinationof this appeal are similar to the appellants’ 3rd
and4th issues. They are accordingly subsumed into theissues formulated by the appellants. Both parties
haveextensively proffered argument in support of their respectiveissues. However, after having read
through the parties

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NigerianWeeklyLawReports8September2008(Galinje,J.C.A.)

respective argument, I am of the firm view that the onlyissue calling for the determination of this appeal
is whetherthe lower court was right when it refused the appellants’application for an order of certiorari
which sought to quashthe entire proceedings including the rulings and orders madeon the 12th and 21st
of May, 1997 in Suit No. M/73/97(Commissioner of Police v. Rita Esabunor) by the 5th respondent,a Chief
Magistrate, sitting at the Chief Magistrates CourtNo.1, Igbosere Road, Lagos.

Mr. D.N. Odibe, learned counsel for the appellants,who settled the appellants’ brief of argument and
alsoargued the appeal, in his argument, submitted that theissues submitted before the lower court for
considerationwere never considered. According to the learned counsel,if these issues were considered,
the lower court would havereached a different conclusion. Learned counsel then setout the issues which
were raised, but were not consideredby the lower court as follows:-

“1. That the case before the 5th respondent was notinitiated by due process of law.
2.That the 5th respondent lacked jurisdictionbecause the issues involved were fundamentalhuman rights
issues.

3.That the 5th respondent having held that it lackedjurisdiction proceeded wrongfully to
assumejurisdiction on the basis of urgency.

4.That the 5th respondent held that it acted underinherent jurisdiction of the court to prevent
thecommission of offence whereas the MagistrateCourt has no such inherent jurisdiction or indeedany
inherent jurisdiction at all.”

Counsel then contended that the High Court was bound toconsider all the issues raised before it, as
failure to do so ispatently fatal to its decision. In support, learned counselcited the following authorities.

Ifeanyi Chukwu Osondu Ltd. v. Soleh Boneh Ltd. (2000) 5NWLR (Pt.656) 322 at 351 G; Odunayo v. The
State (1972)8-9 SC 290 at 297; University of Agriculture, Makurdi v. Jack(2000) 11 NWLR (Pt.679) 658 at
675 B; Ndili v. Akinsumade(2000) 8 NWLR (Pt.668) 293 at 348.

Learned counsel in a further argument, submitted thatthe court below having failed in its duty to
consider all theseissues, this court can proceed to consider and pronounce onthose issues. In aid counsel
cited A.P.P. v. Ogunsola (2002) 5NWLR (Pt.761) 484 at 504 B.

Finally on this segment of the argument, learned counsel

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Esabunorv.Faweya(Galinje,J.C.A.)807

submitted that the institution of an action by an“originating motion exparte” is a procedure unknown to
law.In aid, the authority in Uwah Printers Nig. Ltd. v. EmmanuelUmoren (2000) 15 NWLR (Pt. 689) 78was
cited.

On whether the learned trial judge was right when hesaid that when a Chief Magistrate Court presided
over a caseof a child, he is presumed to be presided over a juvenilecourt, learned counsel submitted that
the mere fact that amagistrate presides over a matter that involves a child doesnot automatically
transform his court into a juvenile court.According to the learned counsel, the constitution and natureof
a court is not regulated or determine by presumption butby statute. In aid, learned counsel
cited Ogunmokun v. MilitaryAdministrator, Osun State (1999) 3 NWLR (Pt. 594) 261 at 278paragraphs D-
E; African Newspapers Nig. Ltd. v. Federal Republicof Nigeria (1985) 2 NWLR (Pt.6) 137 at 160 paragraph
A.

Finally on this aspect of the submission, learnedcounsel submitted that even if the 5th respondent sat as
ajuvenile judge, the orders made by him were in excess of thejurisdiction of a juvenile court.

On whether the relief of certiorari sought by the appellantin the instant case was proper, learned
counsel for theappellants submitted that an order of certiorari could stilllie even in a case where the
order sought to be quashed hasalready been executed.

In aid, he cited Ezenwa v. Bestway Electronic ManufacturingCompany Ltd. (1999) 8 NWLR (Pt.613)
61; Michael Ezeani v.Cyprian Ekwealu & ors. (1961) ANLR 428.

In response, Mr. Ladipo Soetan, learned counsel forthe 1st and 2nd respondents submitted that the 5th
respondentwas right and well within his jurisdiction as Chief Magistratein making the order directing the
medical authorities ofthe 2nd respondent to do all and anything necessary for theprotection of the life
and health of the 1st appellant. Learnedcounsel further submitted that the lower court was right
inholding as it did that the 5th respondent had jurisdiction tomake the order.

On whether the lower court had to consider each issuesor point raised by the parties before it, learned
counselsubmitted that writing a judgment is an art as such each judgeis entitled to follow his own style.
Learned counsel in afurther argument submitted that the conclusion in a judgmentis more important
than the procedure. Where some errors aremade and judge comes to a right conclusion, such
judgmentshould not be disturbed on appeal. In aid, learned counsel

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NigerianWeeklyLawReports8September2008(Galinje,J.C.A.)

cited Ogolo v. Ogolo (1997) 7 NWLR (Pt.512) 310;Angbazo v. Sule (1996) 7 NWLR (Pt.461) 479; Ukejianya
v.Uchendu (1950) 13 WACA 45; Akingboye v. Salisu (1999) 7NWLR (Pt.611) 434 at 453.

Finally, learned counsel submitted that the lower courtis presumed to have considered all the issues
raised in theparties written addresses and this court is urged not to disturbthe findings and conclusions
of the lower court.
On whether actions cannot be instituted by an originatingapplication made ex-parte in the Magistrate’s
Court inLagos State, Mr. Soetan, learned counsel for the 1st and 2ndrespondents submitted that an
application for leave to applyfor certiorari is required by law to be made ex-parte as is anapplication for
leave to enforce an applicant’s fundamentalhuman rights. Learned counsel referred this court to Order
2rule 2(1) of the Magistrate’s Court Rules of Lagos State andsubmitted that although it is not specifically
provided as to thenature of the application that can be utilised to commenceproceedings at the
Magistrate’s Court, under the Nigerianlaw, it is settled that in matters of grave urgency (as in thiscase) an
application may be made ex-parte. Learned counselsubmitted that none of the orders of the 5th
respondent soughtto be quashed was obtained by fraud and so there was nobasis seeking for an order
to quash them.

Finally, learned counsel urged this court to hold that thestatement made by the lower court that the 5th
respondentwhen presiding over the case of a child is presumed to bepresiding over a juvenile court was
an obiter dictum and thatthe appellants are not entitled to cost. Learned counselcited Ukpo v.
Adede (2001) 9 NWLR (Pt.717) 203; UBA Ltd.v. Onagoruwa (1996) 3 NWLR (Pt.439) 700 at 709; J.C. Ltd.v.
Ezenwa (1996) 4 NWLR (Pt.443) 391; Medical and DentalPractitioners Disciplinary Tribunal v.
Okonkwo (2001) 7 NWLR(Pt.711) 206 to buttress his submission.

Black’s Law Dictionary 6th Edition defines Certiorarias follows:-

“A writ of common law origin issued by a superiorto inferior court requiring the latter to producea
certified record of a particular case triedtherein. The writ is issued in order that the courtissuing the writ
may inspect the proceedings anddetermine whether there have been irregularities”

Certiorari is a prerogative writ of common laworigin available to the High Court in itsexercise of its
supervisory control ever inferior

[2008]12NWLR

Esabunorv.Faweya(Galinje,J.C.A.)809

tribunal or courts to ensure that these tribunals or courtsdo not exceed their jurisdiction or do not
commit anyirregularities, which will render their decisions bad.When such writ is issued and the
proceedings of theinferior tribunal is produced for inspection, the HighCourt has power to quash such
proceedings where duecause is disclosed for doing so.
See Nwaoboshi v. Milad, Delta State (2003) 11 NWLR(Pt.831) 305.

In the light of the foregoing, were the proceedings of the ChiefMagistrate Court embarked upon without
jurisdiction, oreven if the.Chief Magistrate had jurisdiction were thereirregularities committed on the
face of the proceedings.

The parties before the Chief Magistrate’s Court werethe Commissioner of Police v. Rita Esabunor. The
process thatinitiated that proceeding is titled “originating motion ex-parte”and it was brought under
section 27(1) and 30 of the childrenand young persons Law Cap. 25 of Lagos State.

The Chief Magistrate, 5th respondent herein, in hisruling said:-

“If Mrs. Rita Esabunor is allowed to preventher child from being transfused, an offenceunder section 339
or section 341 of the CriminalCode would have been committed. If the childeventually dies, the said Mrs.
Rita Ezabunorwould have committed the offence of murder asdefined by section 311 of the Criminal
Code.”

.From the proceedings at the Chief Magistrate’s Court,it is very clear that the intention of the
Commissionerof Police was solely to prevent commission of crime.Section 214(2)(b) of the 1999
Constitution of the FederalRepublic of Nigeria provides that the Nigeria Policeshall have such powers and
duties as may be conferredupon them by law.

By section 4 of the Police Act, 2004 the police shallbe employed for the preservation of law and order,
theprotection of property and the enforcement of all laws andregulations with which they are directly in
charge.

Section 33(1) of the same Constitution provides thatevery person has a right to life and no one shall be
deprivedintentionally of his life, safe in execution of the sentence ofa court in respect of criminal offence
of which he has beenfound guilty in Nigeria.

In course of discharging their responsibility, the police arepermitted to take whatever steps that are
desirable to achieve their

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goal. In the instant case, their resort to the court of lawwas the most desirable way to preserve the law
and order.

The Code of Ethics of the Medical Profession, otherwiseknown as Published Code of Ethics, enjoins a
doctor not toallow anything including religion to intervene between himand his patient and that he must
always take measures thatlead to the preservation of life. This code of ethics placesa great burden on
medical practitioners in such a way thatthey cannot accede to the wish of a citizen who will allow achild
to die on account of religion belief. This is the basisupon which the 1st and 2nd respondents reported
the matterto the police.

The procedure adopted at the Chief Magistrate Courtmay be inelegant, but it was so done by the police
in orderto prevent a commission of crime. It’s a procedure that isbased on criminal law and the essence
was to invoke thejurisdiction of the court. In the circumstance of the case,the court could have even
acted on verbal application toprevent what was obviously a crime that was to be committed.For the
essence of law is to preserve life and property andcreate environment for human beings to live a
contentedand dignified life.

Although, the 2nd appellant had absolute right to choosea course for her life, she has not got that
corresponding rightto determine whether her son should live or die on accountof her religious belief.

In Medical and Dental Practitioners Disciplinary Tribunalv. Okonkwo (supra) at pages 244-245 paragraphs
F-B, theSupreme Court, per Ayoola, JSC said:-

“The right to freedom of thought, conscienceor religion implies a right not to be prevented,without
lawful justification, from choosing thecourse of one’s life, fashioned on what onebelieves in, and a right
not to be coerced intoacting contrary to one’s religious belief. The limitsof these freedoms in all cases’
are where theyimpinge on the rights of others or where they putthe welfare of society or public health in
jeopardy.The sum total of the right of privacy and offreedom of thought ‘conscience or religion whichan
individual has, put in a nutshell, is that anindividual should be left alone to choose a coursefor his life,
unless a clear and compelling overridingstate interest justified the contrary. ……………..if a decision to
override the decision of an (Sic)competent patient not to submit to blood transfusion

[2008]12NWLR

Esabunorv.Faweya(Galinje,J.C.A.)811
or medical treatment on religious grounds, is to be takenon the grounds of public interest or recognised
interestof others, such as dependent minor children, it is to betaken by the courts.” (Italics mine)

In the instant appeal, the 1st and 2nd respondents actedupon an order of court duly procured by the
Commissionerof Police on behalf of the State. The authority to withholdconsent to the blood transfusion
was therefore overriddenby the court order.

The law is trite that a court has a duty to make findingson all issues placed before it and limit itself
thereto. SeeR.E.A.N. Plc v. Amumnu (2003) 6 NWLR (Pt.815) 52; Udengwuv. Uzuegbu (2003) 13 NWLR
(Pt.836) 136.

However, where the determination of an issue in favourof a party who raised it will not affect the result
of an appeal,such issue is of no value and the court needs not considerit. See Okereke v.
Nwankwo (2003) 9 NWLR (Pt.826) 592.

In the instant appeal, the issues raised at the court belowwere irrelevant and the lower court’s failure to
consider themis not fatal to the decision of the lower court.

From the history of this case, I entertain no doubt in mymind that the lower court was right when it
refused to grantthe application for an order of certiorari. The 2nd appellant’sreligious belief had no
bearing in the wanton dissipating ofthe 1st appellant’s life. Clearly, the 1st appellant, being aninfant was
incapable of giving consent to die on account ofthe religious belief of the 2nd appellant. The 2nd
appellant’sdesire to sacrifice the 1st appellant’s life is an illegal anddespicable act, which must be
condemned in the strongestterms.

I find nothing wrong with the processes at the ChiefMagistrate’s Court since they conveyed to the court,
thenotice of a crime that was about to be committed. Thepurpose for which they were filed was
accomplished. Theywere processes in criminal law and clearly, the end justifiedthe means. The blood
transfusion was carried out and theblood so transfused cannot be extracted from the child. Anyfurther
action in respect of this matter will only amount to anacademic exercise and this court has no business
embarkingon such exercise.

Having found that there was no basis upon which thelower court could have granted the relief of
certiorari, itfollows that the dismissed of the claim for damages bythe lower court was proper. Damages
are not awardedas a matter of course. Award of damages must followevents. There was no events
before the lower court that

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would have attracted damages. No proof was laid forsuch a claim.

On the whole this appeal lacks merit and same shall beand it is hereby dismissed.

I make no order as to cost.

Mukhtar, J.C.A: I read in advance the judgment of mylearned brother, Galinje, J.C.A, just delivered. I
entirely agreewith the reasons therein and the conclusion arrived thereat.

It is interesting to observe that the short point underfire was the ironical and most incredible challenge
of the lifesaving order made by the 5th respondent on the 12th May,1997 and his refusal to discharge it
by his ruling deliveredon the 21st May, 1997. one gets a revulsion at the appellants’plebeian attitude by
claiming a purported right against therespondents whose steps, from first to the very last, were inthe
direction of obedience to a lawful order of a court oflaw made to save the life of the 1st appellant. It is
obviouslybetter for the 1st appellant to live in good health after thetransfusion of blood in him than his
life to be ruthlesslymishandled on the sacrosanct belief of the 2nd appellant.After all the 1st appellant
has a right to his life and the 5threspondent rightly made an order to protect and enhance thesanctity of
the 1st appellant’s life. A lawful order so rightlyand timeously made by the 5th respondent could not
havebeen the subject of judicial review. The learned trial judgerightly dismissed the appellant’s claim for
damages.

I am in absolute agreement with my learned brother,Galinje, JCA, that there is no scintilla of merit in this
appeal,and same is accordingly dismissed with no order as to costs.

Jauro, J.C.A: I have had the advantage of reading in draftthe lead judgment just delivered by my learned
brother,Galinje, JCA.

.My learned brother in his lead judgment has meticulouslylooked at all the issues involved in this appeal
and Itherefore have nothing useful to add to his reasoningand conclusion, which I also adopt as mine. To
haveallowed the appellants have their way at the initial stagewould have amounted to an assault on
right to life andeven an affront on a right to die with dignity.

The appeal is devoid of any merit and is herebydismissed. I make no order as to cost.

Appeal dismissed