You may not refuse a blood
transfusion if you are a
Nigerian child: A comment on
Esanubor v Faweya
In Esanubor v Faweya (Esanubor case),1 the Nigerian Court of Appeal ruled
that a Nigerian child cannot refuse a blood transfusion. The events giving
rise to this case occurred in Lagos, Lagos State, Nigeria. The Child Rights Law
of Lagos State, 2007, was operational at the time the Court of Appeal
delivered its decision.2 The facts of the case are as follows: A child, a
Jehovah’s Witness, sued through his mother because of his young age. He
claimed that he had been ill and admitted to a hospital. He was diagnosed
with a severe infection leading to acute
*
LLB, LLM (Obafemi Awolowo), BL (Nigerian Law School); 1
[2009] All FWLR (Pt 478) 380 (CA).
2
The case began in 1997 at the chief magistrate’s court, Lagos. The application for an order of
certioriari was made to the Lagos State High Court and judgment was delivered on 30 May
2001. An appeal was filed at the Nigerian Court of Appeal in 2003 and the judgment of the
Court of Appeal was handed down in 2008. This judgment is subject to appeal to the
Nigerian Supreme Court.
, blood shortage for which a blood transfusion was recommended. His
mother withheld her consent to the transfusion on the ground that her faith
as a Jehovah’s Witness compelled her to do so. The matter was reported to
the Nigerian police, who applied for and obtained an order from a chief
magistrate’s court authorising the hospital to do everything necessary to
save the child’s life. Consequently the child was given a transfusion; his
condition improved and he was discharged. The child sought a reversal of
the order of the Magistrate’s Court on the grounds of fraud, which was
rejected. Thereafter he applied to the High Court seeking judicial review of
the order as well as damages for the unlawful transfusion of blood (without
his own or his mother’s consent). After the High Court had dismissed the
claim, the child’s mother appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal as well and held that the
magistrate’s court was right to have issued an order to save the life of the
child and protect his right to life. 1 The Court held that it was proper to
overrule the refusal of consent to a blood transfusion by the mother on the
grounds of her faith since the infant was incapable of giving consent to die
on account of the religious belief’2 of the mother. The Court further held that
the mother’s desire to sacrifice her son’s life ‘is an illegal and despicable act
which must be condemned in the strongest terms’.3 In effect, the Court held
that the right to life of the child trumped the religious right of the mother,
which the Court conceived gave her the right to determine whether the son
should receive a blood transfusion. The Court relied on a decision of the
Nigerian Supreme Court in Medical and Dental Practitioners Disciplinary
Tribunal v Okonkwo (Okonkwo case),4 where the Court held:5
The right of freedom of thought, conscience or religion implies a right not to be
prevented, without lawful justification, from choosing the course of
BLOOD TRANSFUSION IN NIGERIA 311
one’s life, fashioned on what one believes in, and a right not to be coerced into
acting contrary to one’s religious belief. The limits of these freedoms in all cases
are where they impinge on the right of others or where they put the welfare of
society or public health in jeopardy. The sum total of the right to privacy and of
1
See sec 33(1) of the Constitution of the Federal Republic of Nigeria 1999: ‘Every person has a
right to life, and no one shall be deprived intentionally of his life, save in execution of the
sentence of a court in respect of a criminal offence of which he has been found guilty in
Nigeria.’
2 See sec 38 of the Nigerian Constitution 1999: ’(1) Every person shall be entitled to freedom
of thought, conscience and religion, including freedom to change his religion or belief, and
freedom (either alone or in community with others, and in public or in private) to manifest
and propagate his religion or belief in worship, teaching, practice and observance. (2) No
person attending any place of education shall be required to receive religious instruction or
to take part in or attend any religious ceremony or observance if such instruction ceremony
or observance relates to a religion other than his own, or religion not approved by his parent
or guardian. (3) No religious community or denomination shall be prevented from providing
religious instruction for pupils of that community or denomination in any place of education
maintained wholly by that community or denomination. (4) Nothing in this section shall
entitle any person to form, take part in the activity or be a member of a secret society.’
3 Esanubor case (n 1 above) 397.
4 (2001) 7 NWLR (Pt. 711) 206.
5 Okonkwo case (n 6 above) 245.
transfusion if you are a
Nigerian child: A comment on
Esanubor v Faweya
In Esanubor v Faweya (Esanubor case),1 the Nigerian Court of Appeal ruled
that a Nigerian child cannot refuse a blood transfusion. The events giving
rise to this case occurred in Lagos, Lagos State, Nigeria. The Child Rights Law
of Lagos State, 2007, was operational at the time the Court of Appeal
delivered its decision.2 The facts of the case are as follows: A child, a
Jehovah’s Witness, sued through his mother because of his young age. He
claimed that he had been ill and admitted to a hospital. He was diagnosed
with a severe infection leading to acute
*
LLB, LLM (Obafemi Awolowo), BL (Nigerian Law School); 1
[2009] All FWLR (Pt 478) 380 (CA).
2
The case began in 1997 at the chief magistrate’s court, Lagos. The application for an order of
certioriari was made to the Lagos State High Court and judgment was delivered on 30 May
2001. An appeal was filed at the Nigerian Court of Appeal in 2003 and the judgment of the
Court of Appeal was handed down in 2008. This judgment is subject to appeal to the
Nigerian Supreme Court.
, blood shortage for which a blood transfusion was recommended. His
mother withheld her consent to the transfusion on the ground that her faith
as a Jehovah’s Witness compelled her to do so. The matter was reported to
the Nigerian police, who applied for and obtained an order from a chief
magistrate’s court authorising the hospital to do everything necessary to
save the child’s life. Consequently the child was given a transfusion; his
condition improved and he was discharged. The child sought a reversal of
the order of the Magistrate’s Court on the grounds of fraud, which was
rejected. Thereafter he applied to the High Court seeking judicial review of
the order as well as damages for the unlawful transfusion of blood (without
his own or his mother’s consent). After the High Court had dismissed the
claim, the child’s mother appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal as well and held that the
magistrate’s court was right to have issued an order to save the life of the
child and protect his right to life. 1 The Court held that it was proper to
overrule the refusal of consent to a blood transfusion by the mother on the
grounds of her faith since the infant was incapable of giving consent to die
on account of the religious belief’2 of the mother. The Court further held that
the mother’s desire to sacrifice her son’s life ‘is an illegal and despicable act
which must be condemned in the strongest terms’.3 In effect, the Court held
that the right to life of the child trumped the religious right of the mother,
which the Court conceived gave her the right to determine whether the son
should receive a blood transfusion. The Court relied on a decision of the
Nigerian Supreme Court in Medical and Dental Practitioners Disciplinary
Tribunal v Okonkwo (Okonkwo case),4 where the Court held:5
The right of freedom of thought, conscience or religion implies a right not to be
prevented, without lawful justification, from choosing the course of
BLOOD TRANSFUSION IN NIGERIA 311
one’s life, fashioned on what one believes in, and a right not to be coerced into
acting contrary to one’s religious belief. The limits of these freedoms in all cases
are where they impinge on the right of others or where they put the welfare of
society or public health in jeopardy. The sum total of the right to privacy and of
1
See sec 33(1) of the Constitution of the Federal Republic of Nigeria 1999: ‘Every person has a
right to life, and no one shall be deprived intentionally of his life, save in execution of the
sentence of a court in respect of a criminal offence of which he has been found guilty in
Nigeria.’
2 See sec 38 of the Nigerian Constitution 1999: ’(1) Every person shall be entitled to freedom
of thought, conscience and religion, including freedom to change his religion or belief, and
freedom (either alone or in community with others, and in public or in private) to manifest
and propagate his religion or belief in worship, teaching, practice and observance. (2) No
person attending any place of education shall be required to receive religious instruction or
to take part in or attend any religious ceremony or observance if such instruction ceremony
or observance relates to a religion other than his own, or religion not approved by his parent
or guardian. (3) No religious community or denomination shall be prevented from providing
religious instruction for pupils of that community or denomination in any place of education
maintained wholly by that community or denomination. (4) Nothing in this section shall
entitle any person to form, take part in the activity or be a member of a secret society.’
3 Esanubor case (n 1 above) 397.
4 (2001) 7 NWLR (Pt. 711) 206.
5 Okonkwo case (n 6 above) 245.
