The Court of Appeal sitting in Lagos has turned down a request by Senior Advocate of Nigeria, Femi Falana, to ban public officers from seeking medical treatment abroad.

“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,” Justice Polycarp Terna Kwahar who read the judgment on behalf of the three man panel of justices held.

The other justices of the court, Justice Mohammed Mustapha and Justice Paul Bassi, agreed and affirmed the judgment of the Federal High Court, Ikeja delivered on January 10, 2021.

In July 2010, Mr Falana had dragged 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 and 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 an order restraining public officials from accessing medical checkups in any foreign hospital and being treated at public expense in such hospitals.

The trial court, after considering the issues, 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 constitution.

Dissatisfied with this judgment, Falana appealed in 2021 and in a unanimous judgment delivered Jan. 30th, 2025, the court of appeal agreed with the trial court that, “the right to adequate medical facilities in Nigeria is part of the Fundamental Objective and Directive Principles of State Policy,” and is therefore “non justiciable”.

The court of appeal noted that while before the trial Court, Mr Falana demonstrated the ill-equipped nature of public hospitals in Nigeria and the resultant effect of the untimely deaths emanating from this lackadaisical disposition of government.

Mr Falana had posited that he could lose his life if he fell sick since the hospitals in Nigeria cannot attend to serious health ailment or challenges but the court of appeal in it’s judgment held that despite the issue of inadequate medical facilities in the country, worrisome as it is, the law must take its course.

The court also said that “It is very obvious that the right to adequate medical facilities does not come under Chapter IV of the 1999 Constitution [as amended], so It will therefore be anachronistic to leapfrog this human right into fundamental right.”

The judgment reads in part: “Notwithstanding that there are cases where the right to life is expanded to include the right to food and shelter, however, since the issue before me is on medical or health matters, I shall not go on frolic to analyse the issue of right to food and shelter in this appeal. 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 means?

The Court said that “A fundamental right is a right guaranteed in the Constitution. Fundamental rights’ means any of the fundamental rights provided for in Chapter IV of the Constitution and includes 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 ‘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 Bengel (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 averment of the Applicant/Appellant were not controverted at the trial court by the Respondent, this court been 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 right so 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 10ht January, 2011.

“I make no orders as to cost.”

In a statement made available to the press Sunday afternoon, Falana in his reaction to the judgment, said that “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.”

Falana further said, “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. I will certainly challenge the erroneous judgment of the Court of Appeal at the Supreme Court on account of the constitutional guarantee of right to life and equality before the law”.