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. His mother, the 2nd appellant, took him back to the Chevron Clinic on 11 May 1997 for urgent treatment. It was the 1st respondent who treated the 1st appellant.
He found that the 1st appellant urgently needed blood transfusion.
The 2nd respondent and her husband made it abundantly clear to the 1st respondent that on no account should their child the (1st appellant) be given blood transfusion.
Their 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.
Dr Tunde Faweya (the 1st respondent) remained unyielding.
The next day, the learned counsel for the Commissioner of Police, Lagos State moved an Originating Motion Exparte before the 5th respondent. The motion was brought under Section 27 (1) and (30) of the Children and Young Person's Law Cap 25 of Lagos State.
The relief sought was:
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that the medical authorities of the Clinic of Chevron Nigeria Limited Lekki Peninsula Lagos be allowed and are hereby permitted to do all and anything necessary for the protection of the life and health of the child TEGA ESABUNOR and for such further order or orders as the Court may deem fit to make in the circumstances."
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After hearing counsel the Chief Magistrate delivered a Ruling. Relevant extracts from that Ruling reads:
Under the inherent jurisdiction of this Court to prevent the Commission of Offences, I hereby grant the prayer sought in this application as follows:
"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."
This order was made on 12 May, 1997 a day after the 1st appellant was taken to the Chevron Clinic for treatment.
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. i.e. 12 May 1997. The 1st appellant got well and was discharged. His mother took him home.
On 15 May 1997 the 2nd appellant filed an application on notice wherein she sought for the setting aside of the order made on 12 May, 1997. The application was unsuccessful. It was dismissed on 21 May 1997.
The appellants were dissatisfied with the proceedings before the Chief Magistrate, so they approached the High Court for:
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1
An order of Certiorari removing into this Honourable Court the entire proceedings including the rulings/orders made on 12 and 21 May, 1997 in Suit No. M/75/97 Commissioner of Police v Rita Esabunor at the Chief Magistrate's Court Lagos Magisterial District, presided over by the 5th respondent herein, Chief Magistrate M. Olokoba for the purpose of being quashed.
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2
N10 million Ten million Naira damages against the respondent jointly and severally for unlawfully injecting or transfusing blood into the body of the 1st applicant without the consent of himself and of the 2nd applicant.
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3
N5 million Five million Naira damages against the 1st and 2nd respondents for unlawfully preventing the 2nd applicant from having access to her son. The 1st applicant from 12 May, 1997 to 15 May 1997, and also for preventing her from exercising her parental rights of care over the 1st applicant.
The parties filed affidavit and counter-affidavit. The learned trial judge considered them, and listened to closing speeches of counsel and in a considered Ruling delivered on 28 May, 2001 the learned trial judge Oyefesobi J, of a Lagos High Court reasoned and concluded this:
"Finally, can certiorari issue in this case. The blood transfusion has taken place. Can it be undone? I answer in the negative. The Court does not make an order in vain. The application is refused. The claims are dismissed."
The appellants' were not satisfied with the Ruling of the High Court. They filed an appeal. It was heard by the Court of Appeal, Lagos Division. That Court affirmed the decision of the High Court.
This appeal is against that judgment.
