Appeal Court Rejects Falana’s Bid to Ban Public Officers from Overseas Medical Treatment

The Court of Appeal has dismissed human rights lawyer Femi Falana’s request to prohibit public officials from seeking medical care abroad, sparking nationwide debate.

The Lagos Court of Appeal has rejected a petition from Femi Falana, Senior Advocate of Nigeria (SAN), seeking to prevent public officials from traveling overseas for medical treatment.

Falana, a well-known human rights lawyer, contended that government officials should be required to receive medical treatment within Nigeria to promote the advancement of the country’s healthcare system.

“It would violate the Fundamental Rights of Nigerians, whether they are Public Officers or not, to prevent them from seeking medical treatment abroad when necessary. Thus, granting such a request would be excessively harsh,” stated Justice Polycarp Terna Kwahar on behalf of the three-judge panel.

Justice Mohammed Mustapha and Justice Paul Bassi, the other members of the court, concurred with and upheld the judgment delivered by the Federal High Court in Ikeja on January 10, 2021.

In July 2010, Mr. Falana took legal action against the Federal Government in a trial court. He sought, among other declarations, an affirmation that Nigerians have a legal entitlement to the highest attainable standard of physical and mental health. Additionally, he argued that the government’s failure to repair and equip public hospitals and medical centers in Nigeria constitutes a violation of this right by not safeguarding Nigerians’ health or ensuring they receive necessary medical care when ill.

He requested a court order mandating the government to repair and equip hospitals, as well as an injunction preventing public officials from seeking medical checkups or treatment in foreign hospitals at the expense of public funds.

After reviewing the issues, the trial court dismissed the suit on the basis that providing adequate medical and health facilities is “not justiciable” according to section 6 (6) (C) of the constitution.

Unhappy with the decision, Falana filed an appeal in 2021. In a unanimous ruling on January 30th, 2025, the court of appeal concurred with the trial court’s conclusion that “the right to adequate medical facilities in Nigeria is part of the Fundamental Objective and Directive Principles of State Policy,” hence it is considered “non-justiciable.

The court of appeal observed that during the trial, Mr. Falana highlighted how poorly equipped public hospitals in Nigeria are and pointed out the premature deaths caused by this negligent attitude from the government.

Mr. Falana argued that his life could be at risk if he fell ill, given the inability of hospitals in Nigeria to handle serious health issues. However, the Court of Appeal ruled that although inadequate medical facilities in the country are indeed concerning, legal proceedings must still continue as required by law.

The court stated that it is quite clear the right to adequate medical facilities is not included in Chapter IV of the 1999 Constitution, as amended. Therefore, classifying this human right as a fundamental right would be inappropriate and outdated.

The judgment states: “Although there are instances where the right to life is interpreted broadly to encompass the rights to food and shelter, since this case concerns medical or health-related issues, I will not delve into analyzing these broader aspects of rights in this appeal. How does the matter of Public Officers receiving treatment outside Nigeria relate to a fundamental right for the Appellant?” This raises an important question about what exactly constitutes a fundamental right.

The Court stated that a fundamental right is one guaranteed by the Constitution. This term refers to any of the rights outlined in Chapter IV of the Constitution and includes those specified in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 2004.

Simply embedding a right in the 1999 Constitution does not automatically classify it as a “fundamental right.”

The cases cited by the Appellant, all originating from India, do not pertain to our legal system. While they may hold persuasive value, this court is under no obligation to adhere to them and I choose not to follow these precedents as detailed below:

“(a) Paschim Banga Khet Mazdoor 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 & Others v. Union of India

In contrast, preventing Nigerians—whether public officers or not—from seeking medical attention outside the country when necessary would infringe upon their Fundamental Rights. Thus, it would be overly harsh for this Court to approve such requests.

Even though the Respondent did not challenge the Applicant/Appellant’s statements at the trial court, this court, committed to justice, reviewed the affidavit submitted by the Appellant. The facts presented do not align with existing fundamental rights laws and cannot be ignored because doing so would contradict legal precedents and violate established principles of stare decisis.

The appellant’s application attempts to introduce elements into Chapter IV that were neither originally included nor intended. Granting the requests in this appeal would be an injustice. The lower court conducted a thorough and accurate analysis of Constitutional Law, clearly distinguishing between economic, social, and cultural rights as outlined under Chapter II of the 1999 Constitution rather than Chapter IV. I see no merit in this appeal; therefore, I dismiss it and uphold the Federal High Court ruling delivered in Ikeja on January 10th, 2011.

“I am not issuing any orders regarding costs.”

In a statement released to the press on Sunday afternoon, Falana responded to the judgment by asserting that “the Court of Appeal did not recognize how discriminatory it is to permit only a select few public officials to receive medical treatment abroad while millions of impoverished citizens must rely on inadequately equipped local hospitals.”

Falana added that the Court overlooked the fact that the fundamental right to life is incomplete without federal, state, and local governments in Nigeria protecting the right to health. He expressed his intention to challenge what he considers an erroneous judgment by the Court of Appeal at the Supreme Court due to constitutional guarantees of rights to life and equality before law.