What did you hear about Esabunor v. Faweya? 3 Interesting Points You Mostly likely didn’t take note of

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Chinecherem Ubaka


Constitutional law students as well as Human Rights Law Students in Nigeria must have come across the case of Esabunor v. Faweya either by accident, diligence or cramming. The case of Esabunor v. Faweya is often cited as an authority for the exercise of the right to freedom of thought and religion as guaranteed under section 43 of the 1999 Constitution. Interestingly, there is more to this case than the right to freedom of religion. Meanwhile, I should point out that Tega Esabunor, the Ist Appellant has been in this matter since birth up until age 22.

Brief Fact of the Case Esabunor v. Faweya (2019) 7 NWLR Pt. 1671 SC pg 316-347

Mrs Rita Esabunor put to bed, a bouncing baby boy (Tega Esabunor) at Chevron Clinic, Lekki. Sadly, after about 2 weeks,Tega stopped bouncing and he became sickly. As a result, Tega was admitted into the Chevron Clinic and Dr. Tunde Faweya was his physician. Dr. Faweya examined him and realized that Tega is in urgent need of blood to the extent that he might die without blood transfusion. Thus, he sought the consent of Tega’s mum in order to proceed with the treatment (in line with medical ethics). Surprisingly, Tega’s mum protested and refused blood transfusion for her son based on Acts 15: 29 and the religious beliefs of the “Jehovah Witness” believers. Thereafter, Dr. Tunde Faweya, reported to case to the Police and they swiftly took action by filing an Originating Motion dated 12th May, 1997 at the Magistrate Court. The Court delivered it’s ruling on the same day and ordered that Tega be administered blood transfusion. The Order was given under his inherent jurisdiction and his duty to prevent the commission of an offense. Upon receipt of the said order, Dr. Faweya administered blood transfusion on Tega and he recovered fully and was discharged.

Esabunor v. Faweya (2019); Chinecherem Ogodimma Ubaka; Lumenar Legal Advisory;
Facts of Esabunor v. Faweya;
Image Source: Barrister.ng

After about three days, Mrs. Esabunor filed a Motion on Notice that sought to set aside the earlier order at the Magistrate Court and her application was dismissed. She appealed to the High Court for an Order of Certiorari to set aside the decision of the Magistrate Court and it was dismissed because the blood transfusion had already been done. Furthermore, She appealed to the Court of Appeal and the Supreme Court and the application was dismissed by the courts respectively.

Three Interesting Points You Most Likely Did Not Take Note of in Esabunor v. Faweya

1. The Concept of Inherent Jurisdiction

The Applicants contended that the Magistrate exceeded it’s jurisdiction when it entertained the Exparte application of the Police and granted the order that Tega be administered blood transfusion. The Supreme Court per Rhodes-Vivour, J.S.C stated thus:

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 court…..

Thus, every court has inherent jurisdiction for justice administration except for subject-matters expressly excluded by statues and the 1999 Constitution.

2. The Meeting Point between Religion, Medicine and Law for an Adult and for a child

The case reiterated the right of an adult who is conscious and in full control of his mental capacity and of sound mind to either refuse or accept medical treatment. This means that the meeting point between law, medicine and religion begins and ends with the choices made by a person above age 18 provided he is of sound mind.

The hospital has no choice but to respect their patients’ wishes. All adults have that liberty of choice…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 the abuse of his rights as he may grow up and discard those religious beliefs. It makes no difference if the decision to deny him blood transfusion is made by his parents. M.D.P.D.T. v. Okonkwo (2001) 7 NWLR (Pt. 711) p.206

per Rhodes-Vivour, J.S.C.

With regards to a child, there is no meeting point between law and medicine on one hand and religion. This is because saving the life of the child outweighs any religious beliefs.

3. Conditions for Grant of a Certiorari Order

The case also laid out in clear terms the conditions for Grant of Certiorari. It noted that

Requirements for the grant of an Order of Certiorari; Chinecherem Ubaka

The grant of Certiorari is discretionary in nature and it would only 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 inferior court.

d. Where a conviction or order has been obtained by collusion,

Furthermore, it was noted that the object of a prerogative writ of Certiorari is to enable a superior court of record quash the arbitrary decisions of inferior courts.

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