Appeal court dismisses Falana’s suit to ban public officers from medical tourism

The court of appeal sitting in Lagos has rejected Femi Falana’s request to ban public officers from seeking medical treatment abroad.

A three-member panel of the appellate court delivered the unanimous judgment on January 30.

Polycarp Terna Kwahar, who read the lead judgment on behalf of the panel said: “It will be an infringement or breach on the fundamental right of Nigerians be they public officers or not to prevent them from seeking medical attention outside Nigeria when the need arises, and it will therefore be draconian to grant the request.”

Falana, a senior advocate of Nigeria (SAN) and human rights lawyer, filed a suit against the federal government before the trial court, seeking, among other things, a declaration that Nigerians are entitled to the best attainable state of physical and mental health as guaranteed by law.

He argued that the failure of the government to repair and equip public hospitals and medical centres in Nigeria constitutes a violation of the right to protect the health of Nigerians and to ensure that they receive medical attention when they are sick.

He sought a court order directing the government to repair and equip the hospitals and another restraining public officers from accessing medical checkups in any foreign hospital and being treated at public expense in such hospitals.

However, the trial court struck out the suit on the ground that the provision of adequate medical and health facilities is “not justiciable” by virtue of section 6 (6) (C) of the 199 Constitution.

Dissatisfied with the judgment, Falana appealed the ruling in 2021.

But the appellate court agreed with the verdict of the federal high court.

The judgment reads in part, “…how would the matter of public officers’ treatment outside Nigeria be an issue that is linked with the fundamental right of the appellant? The question to ask is, what does fundamental right mean?”

“A fundamental right is a right guaranteed in the Constitution. Fundamental rights mean any of the fundamental rights provided for in Chapter IV of the Constitution and include any of the rights stipulated in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 2004.

“Merely entrenching a right in the 1999 Constitution does not automatically make such a right a ‘fundamental right’.

“Of all the cases referred to by the appellant, none of them has any link with our jurisprudence. They are all from India, and this court is not bound to follow them. Persuasive as they are, I refuse to follow those cases as highlighted below:

“(a) Paschin Banga Kher Mazdouer Samity V. State of West Bengal (1996) 4 SCL.
“(b) Pt Parmanand Katara V. Union of India & Ors (1989) CS 2039.
“(c) Consumer Education and Research Centres & Ors V. Union of India.

“On the contrary, it will be an infringement or breach on the fundamental right of Nigerians, be they public officers or not, to prevent them from seeking medical attention outside Nigeria when the need arises; this court will therefore be draconian to grant the prayers.

“Although the averments of the applicant/appellant were not controverted at the trial court by the respondent, this court, being a court of justice, looked at the affidavit of the appellant at the lower court, and the facts therein do not fly with the extant laws on fundamental rights, so they cannot be swept under the carpet, since doing otherwise will be going against judicial precedent and against the settled principle of stare decisis.

“This application brought by the appellant seeks to import into Chapter IV what was not and is not provided for; granting the prayers in this appeal will be a travesty of justice. The lower court did a very perfect constitutional law analysis and rightly too, by explaining the difference between economic, social, and cultural rights since these human rights fall under Chapter II of the 1999 Constitution and not under Chapter IV of the 1999 Constitution.” I find no merit in this appeal; I dismiss the appeal and affirm the ruling delivered by the Federal High Court, Ikeja, on the 10th of January, 2011.”

Reacting to the judgment in a statement on Sunday, Falana said, “The court of appeal failed to appreciate that it is discriminatory to allow a few public officers to seek medical treatment abroad while the millions of poor citizens are allowed to die in ill-equipped local hospitals.”

“The court equally failed to realise that the fundamental right to life is incomplete without the protection of the right to health by the federal, state, and local governments in Nigeria,” he added.

“I will certainly challenge the erroneous judgment of the court of appeal at the supreme court on account of the constitutional guarantee of the right to life and equality before the law.”