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| Lydia Ehisuoria Ohonsi, Esq. Alternate-Chair, NBA Lagos Branch Human Rights Committee. |
Abstract
In Esabunor & Anor v Faweya & Ors, the Supreme Court of Nigeria, in a lead judgment delivered by Rhodes-Vivour JSC on 8 March 2019, dismissed the appeal of the parents of an infant whose life-saving blood transfusion had been authorised by a Chief Magistrate over their religious objection. The Court held that where a competent parent or person in loco parentis refuses blood transfusion or other medical treatment for a child on religious grounds, the court should step in and decide by reference to the child’s welfare, that is, the saving of life and the best interests of the child, and that these considerations outweigh the religious belief. It also held that the Chief Magistrate had inherent jurisdiction to prevent the commission of a criminal offence, that the mother was not denied a fair hearing, that certiorari was rightly refused, and that no damages were payable for a lawful act done under a court order. This article sets out the facts and the holdings, places the decision within the Constitution, the Child’s Rights Act, and international child-rights instruments, and explains why the best interests proposition prevails over a parental religious claim where life is at stake. It then examines the settings in which the approach is qualified or has not been followed, including adult refusals, mature minors, and comparative decisions that gave weight to parental belief. It concludes that the principle is sound but that Nigerian law now needs statutory guidance on older children and emergency procedures.
Keywords: best interests of the child; blood transfusion; Jehovah’s Witnesses; freedom of religion; parens patriae; inherent jurisdiction; certiorari; Child’s Rights Act; Esabunor v Faweya.
1. Introduction
Many Jehovah’s Witnesses understand scripture to forbid the transfusion of whole blood and its primary components, and most accept alternative treatments that avoid it. Their belief is sincere and, for an adult, the law protects it. A competent adult in Nigeria may refuse medical treatment even where refusal may shorten life, and a doctor who respects that decision commits no wrong. The difficulty arises when the person whose life is at risk is a baby, and the person refusing is the parent.
That difficulty places two constitutional issues in apparent conflict. Section 33 of the Constitution of the Federal Republic of Nigeria 1999 protects the right to life, and section 38 protects freedom of thought, conscience, and religion, including the freedom to manifest and practise one’s religion. Parents invoke the second to refuse treatment that doctors say is necessary to preserve the first. For twenty-two years after a Lagos magistrate made an emergency order in 1997, the question travelled through the courts, and by the time of the final hearing, counsel could remark that the matter had been pending for twenty years. The Supreme Court answered it in 2019.
The answer is short to state and wide in reach: where life is at stake, the child’s welfare and best interests outweigh the religious objection of the parent. This article examines that proposition. Part 2 sets out the facts and procedural history. Part 3 analyses the decision, including the concurring opinions. Part 4 locates the principle in the statutory and international framework. Part 5 explains why it prevails over a parental religious claim. Part 6 considers where the approach has been qualified, distinguished, or not followed. Part 7 concludes.
2. The Facts and Procedural History
Tega Esabunor was born on 19 April 1997 at the Chevron Clinic, Lekki Peninsula, Lagos. On 11 May 1997, within a month of his birth, he became gravely ill, and his mother, Mrs Rita Esabunor, took him back to the clinic. The treating physician, Dr Tunde Faweya, found severe infection and anaemia and began antibiotics. By the morning of 12 May, the child’s condition had not improved. He had poor colour, was convulsing, and was not breathing well, and he was placed on oxygen. The doctor concluded that a blood transfusion was urgently needed to keep him alive.
The child’s mother and father refused consent. They said that transfusion carried hazards such as AIDS and hepatitis, and that as members of the Jehovah’s Witness sect, their religion forbade it. The doctor was not persuaded and reported the matter to the Commissioner of Police. On 12 May 1997, counsel for the Commissioner moved an originating motion ex parte before Mr M. Olokoba, Chief Magistrate Grade I, Lagos Magisterial District, under sections 27(1) and 30 of the Children and Young Persons Law of Lagos State. The relief sought was that the medical authorities of the clinic be permitted to do all and anything necessary for the protection of the life and health of the child.
The Chief Magistrate ruled the same day. He reasoned that if the mother were allowed to prevent the transfusion, an offence under the Criminal Code would be committed, and that if the child died, she would have committed murder. Acting under the inherent jurisdiction of the court to prevent the commission of offences, he authorised the medical authorities to do all and anything necessary to protect the child’s life and health, and directed them to report their compliance to the court. The transfusion was given that day. The child recovered, was discharged, and was taken home.
On 15 May 1997, the mother applied on notice to set the order aside. After affidavits were filed and the parties heard, the Chief Magistrate dismissed the application on 21 May 1997 and discharged the order, since it had been carried out.
The child, suing by his mother as next friend, and the mother then went to the Lagos State High Court. They sought an order of certiorari removing the entire proceedings, including the rulings of 12 and 21 May 1997, for the purpose of quashing them; ₦10 million in damages, jointly and severally against the respondents, for unlawfully transfusing the child without his or his mother’s consent; and ₦5 million against the doctor and Chevron Nigeria Limited for preventing the mother’s access to her son from 12 to 15 May 1997 and from exercising her parental rights. The respondents were the doctor, Chevron Nigeria Limited, Supol D. Yakubu, the Commissioner of Police, Lagos State, and the Chief Magistrate. Oyefesobi J refused certiorari, reasoning that the transfusion had taken place and could not be undone, and dismissed the claims.
The Court of Appeal, Lagos Division, affirmed. It found no basis on which the High Court could have granted certiorari, held that damages were not awarded as a matter of course and that no proof had been laid for the claim, and dismissed the appeal. The appeal to the Supreme Court was heard on 11 December 2018, and judgment was delivered on 8 March 2019. By then, the infant at the centre of the case was a young adult, which gives the litigation an unusual quality: it began as an emergency and ended as a point of principle.
3. The Decision of the Supreme Court
The appellants formulated seven issues. The first three asked whether the Court of Appeal misdirected itself by abandoning the question of the Chief Magistrate’s jurisdiction, whether it was right to uphold the High Court’s refusal to quash the orders for want of jurisdiction, and whether the proceedings breached the appellants’ right to a fair hearing. The remaining four asked whether the mother’s refusal of consent amounted to an attempt to commit a crime, whether the order overrode her right to choose her child’s treatment, whether the matter had become academic because the transfused blood could not be extracted, and whether the appellants were entitled to damages. The Court dismissed the appeal unanimously.
3.1 Jurisdiction and the inherent power to prevent crime
Rhodes-Vivour JSC began with first principles. Jurisdiction is a threshold matter, fundamental to adjudication and usually conferred by the Constitution or statute. It may be raised at any stage, even for the first time in the Supreme Court; it is determined by the plaintiff’s claim, and its absence makes the entire proceedings a nullity, however well conducted. All courts, by the fact that they are courts, also have inherent jurisdiction, a power necessary for the proper and complete administration of justice, such as the power to punish contempt, which is given neither by the Constitution nor by legislation.
On the first issue, the Court held that the Court of Appeal had not abandoned the question of jurisdiction. A decision on jurisdiction need not use the word. Where the reasoning and conclusion point unequivocally to it, as they did here, it is a decision on jurisdiction, and the Court of Appeal had made a positive finding that the Chief Magistrate had jurisdiction. Nor was there a misdirection, since the Court of Appeal had addressed the issue comprehensively, summarised the evidence correctly, and reached the correct conclusion.
On the substance, the Court noted that the Constitution gives the Nigeria Police such powers and duties as the law confers, that the Police Act directs the force to the prevention and detection of crime, and that section 33 guarantees the right to life. Having examined the proceedings, it found it obvious that the Commissioner’s intention was to prevent the commission of a criminal offence. A Chief Magistrate before whom such an action is brought has inherent jurisdiction to prevent the commission of a criminal offence. The Chief Magistrate, therefore, had jurisdiction to preside and to make the orders he made, and the High Court was right not to quash them.
3.2 Fair hearing
On fair hearing, the Court accepted that natural justice requires a party to be heard before the case against him is determined, and that this is secured by section 36 of the Constitution. It nevertheless held that the mother was not denied that right. The orders of 12 May 1997 were interim orders made ex parte because of the urgency of the matter. She was afterwards heard inter partes on her application to set them aside, and the Chief Magistrate gave a considered ruling on 21 May. More fundamentally, the Court characterised the proceeding as one intended to stop her from committing an offence, not a civil matter in which she would have been put on notice. Her civil rights and obligations, including her right to a fair hearing, would arise when she was charged with an offence, and not before, at an interim stage, or while the matter was still at the stage of investigation. The contention that she was denied a fair hearing was misconceived.
3.3 Consent, children, and religion
The second set of issues went to the heart of the case, and Rhodes-Vivour JSC drew the central distinction between the adult and the child. A conscious adult of sound mind has the right to accept or refuse treatment, including blood, and the hospital has no choice but to respect it. All adults have the inalienable right to make any choice they may decide to make and to assume the consequences. A child is incapable of making such decisions, and different considerations apply. The law is duty-bound to protect the child from abuse of his rights, and it makes no difference that the decision to deny the child a transfusion is made by his parents, since he may grow up and disregard their religious beliefs.
The Court then stated the operative rule. When a competent parent or one in loco parentis refuses blood transfusion or medical treatment for a child on religious grounds, the court should step in and consider the baby’s welfare, that is, the saving of life and the best interests of the child, before a decision is taken. These considerations outweigh the religious beliefs of the Jehovah’s Witness sect. The decision should be to allow the transfusion, especially in life-threatening situations. The Court did not treat the parents’ faith as illegitimate. It held that faith does not carry the power to decide the child’s survival.
3.4 Certiorari, damages, and concurrent findings
On remedies, the Court restated the law of certiorari. It is discretionary, lies to quash judicial and not ministerial, administrative, or executive acts, and is available where a party was denied a fair hearing, where an inferior court acted without or in excess of jurisdiction, where there are errors on the face of the record, or where an order was obtained by collusion or fraud. The Court did not adopt the reasoning of the High Court that certiorari must fail because the transfusion could not be undone. If one of the recognised grounds is proved, it held, certiorari ought to issue even if the act is completed. Here, however, the Chief Magistrate had acted under his inherent jurisdiction, there were no errors on the record, and there was no denial of a fair hearing, so no ground was made out, and the refusal of the writ was right.
On damages, the Court treated the claim as one in trespass to the person, in the form of an unlawful invasion of the child’s body. The general rule is that damages rest on evidence, and where there is none, the claim fails. The transfusion was a lawful act backed by a court order and performed to save the child’s life, so there was no evidence, and there could be none, to justify an award. Finally, the appeal was against the concurrent findings of two lower courts, which the Supreme Court will not disturb save in exceptional circumstances. Counsel had not shown any.
3.5 The concurring opinions
Ariwoola JSC simply agreed. Okoro JSC added three points. The law exists primarily to protect life and the fundamental rights of citizens, infants included, so it will not override the choice of a competent adult who refuses treatment that might prolong his life but will readily intervene for a child who cannot decide for himself. The Child’s Rights Act is, in his words, replete with judicial powers directed to the child’s survival and well-being, and he set out section 13(2), which requires every government, parent, guardian, institution, and body responsible for the care of a child to endeavour to provide the best attainable state of health, together with section 59 on the court’s power to direct an investigation into the child’s circumstances. In that light, it would have been a great injustice to stand by while a child was denied basic life-saving treatment because of a parent’s religious conviction.
Nweze JSC added a supporting note on the primacy of jurisdiction, which can be raised at any stage and even by the court itself, and Augie JSC emphasised that the case sits at the intersection of medicine, religion, and law. She also stated that the grounds for certiorari are not a closed list and that the writ lies to quash the orders or proceedings of an inferior court that has acted in excess of jurisdiction or in breach of natural justice. Where the infant was one month old and the mother was swayed by her religion, she said, there was no question that the Chief Magistrate was right to grant the application that allowed the doctor to save the child’s life.
4. The Legal Framework for the Best Interests Principle
The best interests principle did not originate in Esabunor. It is the organising idea of modern child law. In Nigeria, it has several sources, and the decision draws strength from each.
The first is the common law and equity. The court’s inherent jurisdiction to protect those who cannot protect themselves, the jurisdiction parens patriae, has long allowed courts to act for children whose parents are unable or unwilling to do so. In England, the jurisdiction was described in the nineteenth century as one exercised by the Crown for the protection of its subjects who are unable to look after themselves. The Chief Magistrate’s exercise of inherent jurisdiction in 1997 sits in that tradition, although the Supreme Court framed the power in the narrower terms of preventing the commission of an offence.
The second source is statute. The Child’s Rights Act 2003 makes the best interests of the child a primary consideration in every action concerning a child, whether undertaken by an individual, a public or private body, or a court. It affirms the child’s right to survival and development and to the best attainable state of health, and it places on parents and others responsible for the child a duty to endeavour to secure that standard. It must be remembered that in 1997, neither the Act nor Lagos’s own Child’s Rights Law yet existed, and that the Children and Young Persons Law then governed. The lead judgment does not itself rest on the Act. It is Okoro JSC, in his concurring opinion, who invokes sections 13(2) and 59 as confirming the direction in which the common law was already moving.
The third source is international. The Convention on the Rights of the Child makes the best interests of the child a primary consideration, protects the child’s inherent right to life and to the highest attainable standard of health, and recognises parents’ rights to guide a child in religion in a manner consistent with the child’s evolving capacities, subject to limitations necessary to protect the fundamental rights of others. The African Charter on the Rights and Welfare of the Child, to which Nigeria is also a party, is to similar effect.
The fourth source is the criminal law. The Chief Magistrate’s order was founded on the premise that withholding a life-saving transfusion from an infant would amount to an offence under the Criminal Code, and the Supreme Court endorsed the preventive purpose of the Commissioner’s application. English authority points the same way: a sincere religious reason is no defence to a failure to obtain necessary medical care for a dependent child. A court asked to prevent a foreseeable offence is not required to await its commission.
5. Why the Proposition Prevails
It is tempting to describe Esabunor as a victory of life over religion. That description is wrong in a way that matters. The decision is best read as holding that a parent’s right to practise a faith does not extend to imposing an irreversible risk of death on another person who has no capacity to share, accept, or reject the belief. The right to freedom of religion belongs to the parents, and the right to life belongs to the child.
Several reasons support that conclusion. The first is the text of the Constitution itself. Section 38 is a qualified right, and section 45(1)(b) permits laws that are reasonably justifiable in a democratic society for the purpose of protecting the rights and freedoms of other persons. A child is another person. The parental claim, therefore, reaches its limit exactly where it begins to determine whether the child lives.
The second is irreversibility. Most disputes over parental choice concern outcomes that can be corrected later, such as schooling, diet, or the choice of doctor. Death cannot be corrected. A legal rule that tolerates an irreversible loss for the sake of parental conscience leaves the child with no remedy. The Court’s own concern, voiced in the lead judgment, was that a child may grow up and disregard the beliefs of his parents. A child who dies cannot grow into a believer or a sceptic.
The third is the distinction on which the whole judgment rests: between autonomy and guardianship. Autonomy justifies respecting an adult’s refusal because the adult bears the consequences. Parental authority over a child is not a form of ownership. It is a trust, held for the child’s benefit and exercised within limits the law sets. When the parent’s decision threatens the child’s life, the court, which acts for the child, may displace the decision. That is the proper meaning of ‘best interests’.
The fourth is coherence with the rest of Nigerian law. If the Criminal Code treats the deliberate withholding of necessaries from a child as an offence, it would be anomalous to hold that a court could not prevent the same result by order. The principle also aligns Nigerian law with the rules in comparable jurisdictions. The United States Supreme Court put the point in Prince v Massachusetts in terms that have since been widely quoted: the freedom of parents to martyr themselves does not extend to a freedom to ‘make martyrs of their children’.
It is important to state what the proposition does not displace. It does not touch the adult’s right to refuse, which remains protected by Okonkwo and by the common law of consent. It does not make religious belief irrelevant: the court’s inquiry is into welfare, and a child’s religious upbringing may be part of that welfare. It does not authorise every medical intervention that a doctor desires. The Esabunor facts were extreme: an infant, an urgent, life-saving procedure, and no time for a full hearing. The ratio should be read in light of those facts.
6. Where the Approach Is Qualified or Not Followed
Candour requires a distinction between decisions that depart from the Esabunor proposition and decisions that mark its limits. It is easier to identify the second kind than the first. No reported Nigerian decision declining to follow Esabunor was identified in preparing this article. Its holding appears to have been applied or cited approvingly in commentary rather than challenged in court. That should not be mistaken for universal acceptance. The following settings show where the best interests proposition has been limited, or where courts have given more weight to the beliefs of parents or children.
The first is the adult. The reasoning in Esabunor is expressly confined to children. When a competent adult refuses a transfusion, the law of Nigeria and of every common law jurisdiction leaves the decision with the adult. A parent’s refusal on his or her own behalf is not displaced. This limit is principled, and no sensible reading of Esabunor extends the case to adult patients.
The second is the older minor. Esabunor concerned an infant, who could not form any view. Courts elsewhere have drawn a different line for adolescents whose maturity entitles them to be heard. In England, the House of Lords recognised in Gillick that a child under sixteen may be competent to consent to treatment. Yet in Re E, the High Court overrode a fifteen-year-old Jehovah’s Witness’s refusal of a transfusion, and in Re L, it did so again. In those cases, the court gave weight to the minor’s views but held that the preservation of life prevailed. The Supreme Court of Canada took a more nuanced approach in A.C. v Manitoba, holding that the greater a young person’s maturity, the greater the weight their wishes deserve. Those cases do not contradict Esabunor, but they show what it left open. Nigerian law has no clear rule for the mature adolescent, and the Child’s Rights Act, which defines a child as a person under eighteen, offers no mechanism for hearing the child’s own voice in a medical dispute.
The third is the setting in which the treatment is not immediately life-saving. Where courts have been asked to override parental religious objections to treatment that is beneficial but not urgent, they have been slower to intervene. In In re Green, the Supreme Court of Pennsylvania declined to authorise surgery on an adolescent over his mother’s religious objection without first considering the young person’s own wishes. In Canada, B(R) v Children’s Aid Society of Metropolitan Toronto accepted that the parents’ freedom of religion was engaged by an order authorising the transfusion, and upheld the order only because the limitation was justified in the interests of the child’s life and health. The lesson is that the parental claim weakens as the risk to life increases and strengthens as it recedes. Esabunor belongs at the extreme end of that scale.
The fourth is the procedural limit. The Supreme Court upheld an ex parte order made within a day of the application, after the Court of Appeal had called the procedure inelegant but justified by the need to prevent a crime. That was justified on the facts, but the principle should not extend to cases in which time permits notice. A court asked to override parental religious belief in a case that is urgent but not immediate should hear the parents, the doctor, and, where appropriate, a representative of the child. Two further observations follow. The Supreme Court’s holding that fair hearing rights arise only once a person is charged is stated broadly, and it sits uneasily with the fact that the order affected the mother’s parental rights even while she was not accused of anything. Commentators have also noted that the Chief Magistrate’s order did not fit neatly within the listed powers of the Children and Young Persons Law, and that reliance on inherent jurisdiction left the statutory position unsettled.
Taken together, these settings do not undermine the proposition that the child’s best interests outweigh a parental religious objection where life is at stake. They show instead that the proposition is strongest on its facts and weakest where facts differ: with adults, with mature minors, and where the risk to life is remote. Those boundaries should be stated in law rather than discovered case by case.
7. Conclusion
Esabunor v Faweya settled, at the highest level, a question that doctors, parents, and magistrates had faced for decades. Where a parent or person in loco parentis refuses a life-saving blood transfusion for a child on religious grounds, the court should step in, weigh the child’s welfare and best interests, and where life is at stake, those considerations outweigh the religious objection. The proposition rests on sound foundations: the Constitution’s protection of life and its limits on religious freedom, the Child’s Rights Act, the common law of parens patriae, the criminal law, and the international instruments that Nigeria has accepted.
It does not follow that the work is complete. The decision concerned an infant, and the Supreme Court did not address the mature adolescent, the non-urgent case, or the procedure that should govern when time permits. Parliament and the State Houses of Assembly should fill that gap. A well-drafted provision would state the best interests standard, require that a child’s views be heard according to age and maturity, set out an emergency procedure with prompt review, and direct hospitals towards bloodless alternatives where medically available. The hospitals themselves should adopt protocols that respect families while protecting children.
The case is also a reminder of the kind of respect the law owes to belief. The parents in Esabunor were not wrongdoers. They acted on conviction, and the court did not question its sincerity. What it refused was the claim that a conviction held by the parent may decide whether the child survives. A legal system that protects freedom of religion must also protect the child who, for now, has no religion of their own to defend and no voice with which to speak. That is the lasting value of the decision.
October 2026
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