Tega Esabunor & Anor. V. Dr. Tunder Faweya & Ors. (2008)

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PAUL ADAMU GALINJE, J.C.A.

This is an appeal against the decision of Oyefesobi, J of the Lagos State High court, which was delivered on the 30th May 2001.

The facts of the case are straightforward and are ably set out in the 1st and 2nd Respondents’ brief of argument. I will do no more than to recount them briefly.

The 2nd Appellant herein is the mother of the 1st Appellant who was born on the 19th April 1997 at the Chevron Clinic, Lekki Peninsula, Lagos. On the 11th of May 1997, the Appellant was sick and was taken to that clinic, which is owned by the 2nd Respondent, for treatment. The 1st Respondent, a medical doctor attached to the clinic examined the 1st Appellant and found that he was suffering from severe infection which led to severe shortage of blood in his body. He was placed on antibiotics and by the morning of 12th May 1997 it was clear that the antibiotics were not working as the 1st Appellant was convulsing and could not breathe properly as such he was placed on oxygen therapy.

At this stage the medical personnel at the Chevron Clinic believed that without blood transfusion the 1st Appellant would die. The 1st Respondent informed the 2nd Appellant that the life of the 1st Appellant was in danger and only a blood transfusion could save his life. The 2nd Appellant refused to consent to the transfusion of blood on the ground that she was a Jehovah’s witness and blood transfusion was forbidden by her religion.

The 1st Respondent informed the Management of the 2nd Respondent of the development. The 2nd Respondent in turn reported the development to the police. The 3rd Respondent on behalf of the 4th Respondent applied for and obtained an order from the Magistrate’s Court presided over by the 5th Respondent, authorizing the medical authorities of the 2nd Respondent to do all and everything necessary for the protection of the life and health of the 1st Appellant.

The order of the Court was executed and the 1st Appellant’s condition improved so considerably that he was discharged a few days later.

By an application dated the 15th May 1977, the 2nd Appellant asked the 5th Respondent to set aside his order of 12th May 1997 on the ground that it was fraudulently obtained. This application was dismissed on the 21st May 1997 on the ground that the order having been complied with could no longer be set aside.

The Appellant’s application to the High Court of Lagos State for an order of certiorary, removing into the High Court the entire proceedings including the rulings/orders made on the 12th and 21st of May, 1997 by the 5th Respondent herein for the purpose of being quashed was refused and dismissed. Also dismissed by the lower Court was the 1st Appellant’s claim for Ten Million Naira (N10,000,000.00) damages against the Island 2nd Respondents for unlawfully injecting or transfusing blood into his body without his consent and/or the consent of 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 aforementioned decision of the High Court, the Appellants have appealed to this Court. Their notice of appeal dated 20th August 2001 and filed on the 22nd August 2001 contains ten grounds of appeal. (The notice and grounds of appeal are pages 164-172 of the record of appeal).

In line with the relevant rules of this Court, the Appellants and the 1st and 2nd Respondents filed and exchanged briefs of argument. The 3rd, 4th and 5th Respondents did not file briefs of argument and so were not heard in argument when this appeal was heard.

The Appellants’ joint brief of argument is dated and filed on the 3rd of June 2003, while the 1st and 2nd Respondents’ joint brief of argument is dated 31st July 2003 and filed on the 1st of August 2003. The Appellants Reply brief is dated 18th September 2003 and filed on the 19 September 2003.

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

Mr. Daniel N. Odibe, learned counsel for the Appellant, formulated four issues for the determination of this appeal at pages 2-3 of the Appellants brief of argument. These issues read as follows: –