Medical Trips: Lawyer Drags Buhari to Court for Violating National Health Act

 

A legal practitioner, Mr. Deji Enisenyin has filed a lawsuit against President Muhammadu Buhari at the Federal High Court sitting in Abeokuta over what he called continued flagrant violation of the National Health Act, 2014, ACT NO. 8, A 139-172 by the President, the Daily Bells reports.

 

Joined as defendants in the suit were Attorney General of the Federation, President of the Senate and the National Assembly.        

 

In the suit marked FHC/AB/CS/51/21, the Abeokuta-based lawyer is praying the court to declare that the president is in “serious breach” of Section 46 of the National Health Act, 2014, Act No. 8, A 139-172 by his frequent foreign medical trips.

 

President has spent about 183 days getting medical help in the UK.

 

He was again billed to leave for London for another medical check-up on Friday, but the trip was cancelled.

 

The presidency had said the scheduled trip was a follow-up to the president’s last visit in March.

 

Femi Adesina, presidential spokesperson, in a statement on Friday, said the trip has been postponed and that a new date will be announced soon.

 

“The medical follow-up visit of President Muhammadu Buhari to United Kingdom earlier scheduled for today, Friday, June 25, 2021, has been postponed,” he said.

 

In the originating summons, being served on the respondents within 30 days, and made available to the DAILY BELLS, the plaintiff asked the court to determine following questions: In light of Section 46 of the National Health Act, 2014, Act No. 8, A 139-172 which provides:

 

“Without prejudice to the right of any Nigerian to seek medical check-up, investigation or treatment anywhere within and outside Nigeria, no public officer of the Government of the Federation or any part thereof shall be sponsored for medical check-up, investigation or treatment abroad at public expense except in exceptional cases on the recommendation and referral by the medical board and which recommendation or referral shall be duly approved by the Minister or the Commissioner as the case may be.”

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(a) Whether the 1st Defendant is not a Public Officer envisaged by the    provisions of section 46 of   the National Health Act, 2014, Act No. 8, A 139-172?

 

(b)          Whether by the provisions of section 46 of the National Health Act, 2014, Act No. 8, A 139 – 172, and in the circumstances of this case, the 1st Defendant can embark on medical check-up abroad at public expense?

 

©            Whether the 1st Defendant is not bound by the provisions of section 46 of the National Health Act, 2014, Act No. 8, A 139-172?

 

(d)          Whether the 1st Defendant has violated the provisions of section 46 of the National Health Act, 2014, Act No. 8, A 139-172?

 

Upon the determination of the questions set out above in favour of the Plaintiff, the Plaintiff prays the Honourable Court for the following reliefs:

 

  1. A DECLARATION that the 1st Defendant is a public officer envisaged by section 46 of the National Health Act, 2014, Act No. 8, A 139-172.

 

  1. A DECLARATION that by virtue of section 46 of the  National Health Act, 2014, Act No. 8, A 139-172, the 1st Defendant cannot embark on  a medical trip for check-up outside of Nigeria at public expense without the recommendation of the Medical Board and approval of the Minister of Health.

 

  1. A DECLARATION that the 1st Defendant as a Public Officer is bound by the provisions of section 46 of the National Health Act, 2014, Act No. 8, A 139-172.

 

  1. AN ORDER OF COURT that the medical-check-up embarked on by the 1st Defendant on the 30th of March, 2021 to the 15th of April, 2021 to London, United Kingdom utilizing one of the Presidential Aircrafts in the Presidential Air Fleet, his stay at the apartment finance by the Federal government, at public expense is unlawful, as same violates the provisions of section 46 of the National Health Act, 2014, Act No. 8, A 139-172.

 

  1. AN ORDER OF COURT that the funding of the medical trip of the 1st Defendant embarked upon on 30th March 2021 without the recommendation of the Medical Board and the approval of the Minister of Health is a flagrant violation of the provisions of section 46 of the National Health Act, 2014, Act No. 8, A 139-172.

 

 

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STATEMENT OF FACTS

 

1.1.         The 1st – 4th Defendants are creations of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) “the CFRN” and their functions are enumerated in paragraphs 2, 3 and 4 of the supporting Affidavit to the Originating Summons.

 

1.2.         The Plaintiff in the instant suit and the deponent in the supporting Affidavit is a qualified legal practitioner called to the Nigeria Bar in Year 2006, domiciled in Nigeria, and bound by the CFRN; including laws enacted by the 4th Respondent.

 

1.3.         The NHA is one of the Laws passed by the 4th Defendant by virtue of the powers conferred on it by the CFRN. The essential purpose of the NHA is to improve the Nigeria Health Sector by providing quality, affordable and accessible healthcare services to Nigerians. The main objective of the draftmen of section 46 of the NHA is to ensure Public Officers including the 1st Defendant in the circumstance, as it relates to citizens’ healthcare are responsible and responsive to public healthcare issues, and do not take undue advantage of the public resources (funds) at their disposals to seek better medical treatments abroad at the detriment of the public who are exposed to deteriorating healthcare facilities caused by bad governance and policies. We place reliance on exhibit D-J4 on this submission.

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1.4.         By virtue of section 1 of the Fifth Schedule (Part II) Code of Conduct for Public Officers of the CFRN, the 1st Defendant is a Public Officer.

 

1.5.         The 1st Defendant by embarking on medical trip on 30th March 2021 to London, United Kingdom, in his capacity as the President of the Federal Republic of Nigeria and at the same time making use of the resources of the Federal Republic of Nigeria at his disposal, including the use of the Presidential Aircraft violates the provisions of section 46 of NHA (supra).

 

1.6.         The 1st Defendant is bound to uphold the provisions of the CFRN and other legislations made thereto, including the NHA.

               

3.0.         ISSUES FOR DETERMINATION?

                               

3.1.         The Plaintiff has formulated the following questions for determination:

 

(a)          Whether the 1st Defendant is not a Public Officer envisaged by the provisions of section 46 of the National Health Act, 2014, Act No. 8, A 139-172?

               

(b)          Whether by the provisions of section 46 of the National Health Act, 2014, Act No. 8, A 139 – 172, and in the circumstances of this case, the 1st Defendant can embark on medical check-up abroad at public expense?

 

(c)           Whether the 1st Defendant is not bound by the provisions of section 46 of the National Health Act, 2014, Act No. 8, A 139-172?

 

(d)          Whether the 1st Defendant has violated the provisions of section 46 of the National Health Act, 2014, Act No. 8, A 139-172?

3.2. However, the above four (4) questions shall be argued together under a sole issue:

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“Whether the 1st Defendant, as a public officer is not in flagrant violation of section 46 of the National Health Act, 2014, Act No. 8, A 139-172 having regard to his utilization of the public resources at his disposal as the President of the Federal Republic of Nigeria while on a routine medical check-up abroad, a medical trip embarked upon on 30th March 2021?”

 

3.3. The above formulated sole issue will be discussed under various sub-heads anon.

 

4.0.         ARGUMENTS/SUBMISSIONS

 

Provision of section 46 of the NHA

4.1.         It is our submission that the 1st Defendant and other public officers of the Government of the Federation are prohibited from sponsorship for medical check-up, investigation or treatment abroad at public expense except in exceptional cases on the recommendation and referral by the medical board and which recommendation or referral shall be duly approved by the Minister or the Commissioner as the case may be. See section 46 of the NHA.4.2.          The referenced section 46 of the NHA provides:

“Without prejudice to the right of any Nigerian to seek medical check-up, investigation or treatment anywhere within and outside Nigeria, no public officer of the Government of the Federation or any part thereof shall be sponsored for medical check-up, investigation or treatment abroad at public expense except in exceptional cases on the recommendation and referral by the medical board and which recommendation or referral shall be duly approved by the Minister or the Commissioner as the case may be.”

 

4.2.         By the provisions of the referenced section 46 of the NHA, the following can be deciphered:

 

(i)            The referenced section recognizes the rights of citizens to seek medical check-up, investigation or treatment anywhere within and outside Nigeria;

 

(ii)           The referenced section prohibits Public Officer of the Government of the Federation or any part thereof from being sponsored for medical check-up, investigation or treatment abroad at public expense;

 

(iii)          The referenced section recognizes that Public Officers of the Government of the Federation or any part thereof can only be permitted to be sponsored for medical check-up, investigation or treatment outside Nigeria at public expense only in exceptional cases:

(a)          On the recommendation and referral by the medical board.

(b)          The recommendation or referral shall be duly approved by the Minister or the Commissioner as the case may be.

 

‘Mischief rule’ is the applicable cannon of interpretation in the circumstance

4.3.         We submit with the greatest respect that the words employed by the drafters of the statute sought to be interpreted are plain. That is, the true meaning’ of every words contained in section 46 of the NHA are clear and unambiguous, we urge  your lordship to so hold.

 

 4.4.        In SUSSEX PEERAGE CASE (1844) CL & Fin 85 at 143, by His Lordship, Tindal, C.J. wherein he postulates as follows:

 

“The Rule of Construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the Statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in the natural and ordinary sense, the words themselves alone, do in such a case, best declare the intention of the law giver.”

 

4.5.         In SEVEN UP BOTTLING CO LTD vs. ABIOLA AND SONS LTD (1995) 3 NWLR (Pt.383) 257 at 276, the Supreme Court held that:-

 

“In construing the provision of a Statute, where the words are clear and unambiguous, it is the words used that govern.”

 

4.6.         And in UWAZURIKE vs. ATTORNEY-GENERAL of the FEDERATION (2007) ALL FWLR (Pt.367) 834 SC, the Supreme Court, Per Ogbuagbu, JSC at page 845, prg D-F of the Report on duty of court when provision of a statute are clear and unambiguous had this to say:-

 

“Where the language of a statute is plain, clear and unambiguous, the task of interpretation can hardly arise. It is therefore, the duty of the court in such a situation to give the words their ordinary, natural and grammatical construction unless such interpretation would lead to absurdity or some repugnancy or inconsistency with the rest of the legislation.”

 

4.7.         However, we pray your lordship to go beyond the ordinary meaning of the provision of section 46 of NHA, by adopting the purposive or mischief rule of interpretation.  Our submission is base on a premise that your lordship is urged to consider the purpose behind the enactment of the statute, that is, National Health Act (NHA)

 

4.8.         In other words, we respectfully, urge the Honourable Court not to limit the interpretation of section 46 of NHA to the literal rule of interpretation, but to interprete the said statute to discover the mischief against which the law is directed or aimed at by the law makers, represented in this suits by the 3rd and 4th Defendants.

 

4.9          Respectfully my Lord, we submit anon that the Judiciary is the organ vested with the constitutional  duty of settling disputes between individuals and between the state and the other person(s). In that wise, the Applicant is seeking your lordship intervention in the interpretation of Section 46 of the NHA.  Thus, the construction of the said section of the Act is now being sought to meet the end of justice and same, is imperative in the circumstances of the facts placed before the Honourable Court.

 

4.10.      Most humbly my lord, an application of this nature seeks for interpretation of statute beyond the ordinary meaning employed by the legislature in enacting the statute. Thus, it is submitted that by the clear wordings of the law, it is clear that the law makers desired to correct an anomaly which can only be addressed by the provisions of an Act. Respectfully sir, we submit that there are various aids or principles of construction of a statute; from literal rule as seen in the case of Sussex  Peerage case (supra), to Uwazurike’s case (supra), to  Golden rule, to mischief rule,   inter alia.    

 

4.11.      It is our humble submission that the one that meets the Justice of this case is that of the mischief rule. This is because there is a purpose and or historical antecedent of the statute now sought to be interpreted by your lordship. Thus, the intention of the 4th defendant in making NHA particularly section 46 thereof is now to be considered with the greatest request to you lordship. The Applicant in view of the facts placed before the Honourable court, is praying your lordship to determine whether the purpose of Section 46 of NHA has not been defeated in view of the facts contained in the affidavit evidence placed before your lordship.

 

4.12.      The point we are trying to demonstrate, is that, the 1st Defendant in view of the facts placed before your lordship has acted against the intendment of the Act enacted by the 4TH Defendant presided over by the 3rd Defendant. My lord, it is our humble submission base on the fact in the affidavit in support of this application that the intention of the 4th Defendant in making NHA particularly section, 46 has been thrown to the wind by the 1st Defendant. That is, the 1st Defendant has violated the provision of the law. We urge your lordship to so hold.

 

4.13.      The  Honorable court is further assisted in applying this principles or cannon of interpretation when the clear wordings or ordinary meaning or the words in section 46 of NHA is fully and dully considered.

 

4.14.      In interpreting section 46 of the NHA, we urge your Lordship in the circumstance to adopt the interpretation that will enable the suppression of the mischief that characterized the conducts of Public Officers in the past, wherein there was total neglect of the Healthcare Sector in Nigeria by the Government due to their access to public funds and facilities to cater for their medical treatments abroad at the detriment of the masses.

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