Month: December 2020

More often than not, the behavioural patterns of humans are guided by beliefs. These beliefs are products of our existence and involvements in societies we find ourselves. They can be religious, societal, political etc.

This analysis is based on Jehovah Witnesses’ religious stance on blood transfusion. It is worthy to note that the analysis will be restricted to the legal implications of this belief leaving out the biblical exegesis.

Blood transfusion is the lifesaving procedure of transferring blood or blood components from one person (the donor) into the bloodstream of another person (the recipient). Jehovah Witnesses believe that the Bible prohibits Christians from accepting blood transfusions. Several biblical references that supported this belief are Leviticus 17:11, Leviticus 3:17, Acts21:25, etc.

This article sets to answer these questions: can an adult Jehovah Witness reject blood transfusion even in a life-threatening situation? Who bears the liability if such a refusal leads to death – the doctor or the patient? What happens in a case where this life-threatening situation involves a child who cannot make a decision? Who makes the decision? The parents or the Courts?

In answering the questions, attention will first be paid to the case of Medical And Dental Practitioners Disciplinary Tribunal v. Dr Okonkwo.

FACTS OF THE CASE
Mrs. Okorie and her husband are Jehovah Witnesses. She was a patient of the respondent. While at the respondent’s hospital, she refused the transfusion of blood or any bloody material to her body, and she signed an undertaken that no matter what happens, that blood should not be transfused to her. Her undertaken read that: “I Martha K. Okorie, direct that no blood transfusions be given me, even though physicians deem such vital to my health or my life. I accept non-blood expanders, such as Dextran, saline or Ringer’s solution, hetastarch, I am 29 years old and execute this document of my own initiative. It accords with my rights as a patient and my beliefs as one of Jehovah’s witnesses. The Bible commands: keep abstaining from blood”. (Acts 15:28,29). This is and has been, my religious stand for 6 years. I direct that I be given no blood transfusions. I accept any added risk this may bring. I release doctors, anesthesiologists, hospitals, and their personnel from responsibility for any untoward results caused by my refusal, despite their competent care. In the event that I lose consciousness, I authorize either witness below to see that my decision is held. The respondent accepted her undertaken and proceeded to treat her without transfusing blood.

However, the patient died on 22nd August, 1991. The mother and uncle of the deceased then charged the respondent before the Medical and Dental Practitioners Disciplinary Tribunal. Due to procedural defects by the Tribunal, the respondent was held guilty. His appealed to the Court of Appeal was successful and the tribunal now brought the case before the Supreme Court.

THE JUDGMENT
The principle of law held was that a competent adult has the constitutional right to choose whatever medical treatment he or she wants without interference by the medical practitioners. As held by Ayoola JSC, ‘the patient’s constitutional right to object to medical treatment or, particularly, as in this case, to blood transfusion on religious grounds is founded on fundamental rights protected by the 1999 Constitution as follows: (i) right to privacy: section 37; (ii) right to freedom of thought, conscience and religion: section 38…. the sum total of the rights of privacy and of freedom of thought, conscience, or religion which an individual has, put in a nutshell, is that an individual should be left alone to choose a course for his life unless a clear and compelling overriding state interest justifies the contrary.’

The Court further stated that when faced with this dilemma, a doctor has a duty to inform the patient or relatives of the potential risk of non-refusal of blood transfusion without any imposition of the doctor’s preferred mode of treatment.

By contrast, in a Canadian case of Malette v. Shulman 47 DLR (4th Edition) 18, Malette was injured in a car accident and was unconscious. Dr Shulman administered blood transfusions to save her life, despite being aware of Malette’s religious objections to blood transfusions as a Jehovah Witness. The defendant was found liable for battery and held to pay the plaintiff 20000$ in damages. Under the doctrine of informed consent, a doctor cannot perform a medical operation unless he has the consent of the patient.

Furthermore, there is also the exception of a life threatening situation, where the person has a religious belief, but such a person is unconscious or mentally incapable of consenting to the treatment as well as the absence of a surrogate decision maker, the doctor may proceed  to save his life because it is in his best interest. This is known as the Best Interest exception. It applies in medical emergency situations. At that point, as long as he can’t consent or no one is there to consent on his behalf, then whether or not he is a Jehovah Witness, the doctor will not be liable because the treatment was is in his best interest.

WHEN IT INVOLVES A CHILD
Unlike the aforementioned cases that involved competent adults and doctors, when the question involves a child, the principle will change because the Courts always step in. In a 2019 case of Tega Esabunor & Anor & v. Dr Tunde Faweya (2019) LPELR-SC.97/2009, a child who belonged to Jehovah Witnesses fell ill after a month of his birth. His parents made it abundantly clear that on no account should their child (the 1st appellant) be given blood transfusion. Unyielding, the respondent (Dr Faweya) saved his life through a blood transfusion after gotten a Court order enabling him to do so. He was then sued by the appellant for the trespass of transfusion on the body of the 1st appellant without consent.

The court held that: ‘when a competent parent or one in loco parentis refuses blood transfusion or medical treatment for her child on religious grounds, the Court should step in, consider the baby’s welfare, i.e. saving the life and the best interest of the child, before a decision is taken. These considerations outweigh religious beliefs of the Jehovah Witness Sect.

The rationale for this is that the survival and total well-being of a child in the Nigerian society is not within the purview of the parents alone. See S.13 and 59 of the Child’s Right Act 2003.

In addition, the Court held the view that ‘it could have amounted to a great injustice to the child if the Court had stood by and watched the child being denied basic treatment to save his life on the basis of the religious conviction of his parent. He probably would not be alive today’.

In conclusion, though the parties in these cases are Jehovah Witnesses, the principles held in those cases are of universal application to everyone in Nigeria. A competent adult, exercising his rights under S.37 & 38 of the Constitution, has the right to choose his/her medical treatment which a medical practitioner is bound to follow. However, when it involves a child, the safety of such a child overrides any religious convictions.

Thank you for reading. See you next Year and Merry Christmas in advance❤.

In our daily simple transactional activities, have you ever been in a position where you brought a product or goods in a shop for a price higher than the price tag? For instance, the price tag on Hypo sachet in Nigeria is N20 yet it’s being sold for N30 or even 40 naira in most Nigerians stores. Peradventure a buyer insisted on purchasing it at N20 naira and the seller rejected it, can the buyer bring an action against the seller for a breach of contract?

In law, this hypothetical scenario falls under the scope of an Invitation to Treat under Contract. But before we discuss Invitation to Treat, it is important to briefly touch on another important concept which is Offer.

An offer is a definite undertaking or promise made by one party with the intention that it shall become binding on the party making it as soon as it is accepted by the party to whom it is addressed. For example, if Sansa Stark tells Raymond Reddington that she wants to purchase his laptop for the sum of N75,000, that’s an offer and Raymond, can either use to accept or reject. If he accepts, then a contract is formed. A breach of this contract will attract legal action.

On the other hand, an Invitation to Treat is not the same as an Offer. It is an invitation to another person to make an offer. Also known as an Offer to Chaffer, it refers to the preliminary effort to invite or induce others to make an offer. So if you’re travelling and you see an Always billboard advertisement stating that their smallest sanitary pad is now N300, they are basically enticing prospective customers to make an offer around that price and not necessary for that stated price.

An Invitation to Treat is not, by itself, capable of being accepted so as to form a binding agreement. As held by the Court in Neka B.B.B. Manufacturing Co. Ltd. Vs A.C.B. Ltd. (2004) 2 NWLR (Pt.858) 521, ‘an invitation to treat is not an offer that can be accepted to lead to an agreement or contract and therefore cannot form the basis of any cause of action.’

Generally in law, displays of goods in a supermarket, catalogues, shelves, etc are examples of an Invitation to Treat. In Pharmaceutical Society of Great Britain v Boots Cash(1952) 2 QB 795, it was held that goods displayed in a chemist store are examples of an Invitation to Treat. The Offer comes into play when the buyer takes the goods to the cashier. The cashier can then decide to accept or reject the offer. See also Fisher v Bell(1961) 1 QB 394. Other examples of an Invitation to Treat are auctions, advertisements, a call for interviews, etc.

Back to our earlier scenario, the buyer cannot claim a breach of contract because there was no contract in the first place. All that happened was just an Invitation to Treat. It became an Offer when he took the Hypo sachet and presented 20 naira. Since the seller rejected, there was no acceptance that could then metamorphose into a contract.

Thank you for reading and see you next week❤

Marital rape is a non-consensual sexual intercourse with one’s spouse. In most cases, it will be the husband having sexual intercourse without the wife’s consent. Being a despicable act, the consequences of rape and marital rape are associated with fear, depression, and other life traumatic experiences.

In Nigeria, the offence of rape is encapsulated in the Criminal Code (applicable to the Southern States) and the Penal Code(applicable to the Northern States). It is worthy of note that both statutes have similar features on this issue. According to Section 357 of the Criminal Code: “Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threat or intimidation of any kind or by fear or harm, or by means of false and fraudulent representation as to the nature of the act or in the case of a married woman by impersonating her husband, is guilty of rape”.

From this provision, one can, on the superficial look, argues that marital rape is an offence in Nigeria. However, upon a thorough examination, one will realize that it is not an offence because the mischief in that provision is caused by the phrase “Unlawful carnal knowledge”. Section 6 of the Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife; and the offence is complete upon penetration.

Putting it in perspective, can a husband rape his wife in Nigeria? Yes. It happened and it is still happening. Can he be held guilty under the law? No.

The following can thus be deduced from the provisions of S.357 and 6 of the Criminal Code:

(a) The scope of S.357 is narrow because it is gender-specific in that that it is only men who can commit the offence of rape. (b) The act amounting to rape is limited to penile penetration of the vagina. Anal or oral sex does not constitute sexual intercourse for the offence of rape. (c) Marital rape is not an offence.

Furthermore, there was a law that came into force in 2015. It is known as The Violence Against Persons [Prohibition] Act 2015(VAPPA). This law also touches on the issue of domestic violence. Fortunately, unlike the Criminal and Penal Codes, it widens the scope that both genders are capable of committing the offence of rape. In addition, it extends rape to any penetration of any opening in the body of a victim and with anything. Now there is no need to prove rape only by penetration of the vagina with the penis since penetration of any opening in the body (including, mouth and anus,) now suffices. Unfortunately, it was silent on the issue of marital rape.

The notion that a husband cannot be guilty of rape upon his wife is predicated on the then generally accepted view of the Common Law. It was based on a theory articulated by Mathew Hale, Chief Justice in England in the 18th century who wrote in 1736 that: the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto her husband which she cannot retract. This is known as the Hale Theory of Implied Consent. Also, there is the Theory of Oneness which has its root in the Bible. It states that a husband and his wife are one and inseparable making it impossible to rape oneself.

In Nigeria, the ugly picture painted through the concept of bride-price has made the majority of people see a wife as a property bought by his husband who subsequently has hegemony over her in all spheres. The effect of Lord Hale’s pronouncement is that upon entering marriage, there is an implied consent to sexual intercourse and it is inconsequential whether the wife wants it or not.

THE WAY-OUT
In Nigeria presently, there are no reported cases of marital rape. The reasons for this are not farfetched. In Africa and mostly Nigeria, a mother will rather choose to stay in an abused home and take care of her children rather than report a marital rape case. Other factors also include societal shame and stigmatization, ignorance, and fear of the perpetrator’s reprisal.

Unfortunately, this is the law until it will be changed. Marital rape is not an offence in Nigeria which a punishment is attached. As such, marital rape in Nigeria is a wrong without a remedy. This has made some vile men to hide under the cloak of this ‘protection’ to perpetuate this ignoble act.

However, if a victim (woman) is bent on taking legal actions against her husband, she can decide to bring an action for sexual assault.

Though not explicitly stated, one can infer that Lagos State, through the enactment of the Protection Against Domestic Violence Law 2007, has ruled out the marital rape exception clause. Section 18(g)(v) defined Sexual abuse as any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity, or dignity of the victim. Obviously, marital rape is captured under this definition because it violates the dignity of the victims. However, the success or otherwise of any action predicated on this provision is based on the Court’s discretion.

In conclusion, one of the functions of law is that it is meant to keep up with the pace of society. As such, the Nigerian Law on marital rape ought to reflect the present-day realities in society by repealing the marital rape exceptions or amend the provision of S. 6 of the Criminal Code not to distinguish between marital rape and ordinary rape. Several countries in the world such as Belgium, Poland, Cyprus, South Africa, Ghana, Liberia, France, etc have taken a bold step against marital rape exceptions in their respective laws. Nigeria shouldn’t be left behind either.

Thank you for reading. See you next week.❤