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A LANDMARK JUDGMENT – Holds That Dismissal Based On #HIV-Positive Status Is Unlawful

 

October 9, 2012
Press Statement
SERAC WINS A LANDMARK COURT JUDGMENT
Holds That Dismissal Based On -Positive Status Is Unlawful
The Lagos State High Court handed down a landmark judgment in the first ever Human
Immunodeficiency Virus (HIV) discrimination lawsuit, Georgina Ahamefule V. Imperial Medical
Centre & Dr. (Suit No. ID/1627/2000), on Thursday September 27, 2012. The
Honorable Justice Y.O. Idowu held that the termination of Georgina Ahamefule’s employment by
the Imperial Medical Centre on the ground of her HIV-positive status is illegal, unlawful and
actuated by malice and extreme bad faith.
On July 14, 2000, the Social and Economic Rights Action Center (SERAC) filed the lawsuit
challenging the termination of Georgina Ahamefule’s employment as an auxiliary nurse by the
Imperial Medical Centre and its Chief Medical Director, Dr. Alex , based on her HIV-
positive status.
Georgina joined the Imperial Medical Centre as an auxiliary nurse in 1989. In 1995, while she was
pregnant, Georgina developed boils on her skin and sought medical attention from her employer Dr.
Alex Molokwu who carried medical examinations and diagnostic tests without disclosing the nature
and outcome of the tests to her. Dr. Molokwu referred Georgina for further testing to one Dr.
Okanny at the University of Teaching Hospital with a note in a sealed envelope. Dr. Okanny
carried out various tests without disclosing the nature of those tests to Georgina. She was
subsequently informed that she had tested positive to the Human Immuno-deficiency Virus (HIV).
Georgina was never provided any form of counseling before or after the tests were carried out as
required by medical ethics and the .
Dr. Molokwu promptly terminated Georgina’s employment as an auxiliary nurse at the hospital on
the ground of her HIV-positive status. In the termination letter dated October 23, 1995, Dr.
Molokwu explained that the hospital’s management could not compromise the facility or its patients
by exposing them to risks associated with Georgina’s HIV-positive status. However, Dr. Molokwu
had no hesitation to giving Georgina a letter recommending her for employment in other medical
facilities.
The emotional and psychological trauma that she suffered as a result of the news of her HIV-positive
status and the loss of her employment contributed to a spontaneous miscarriage of her pregnancy.
Georgina was further victimized, rejected, humiliated and put at great risk when Dr. Molokwu
declined to carry out his own prescribed evacuation of the miscarried pregnancy on the ground of
Georgina’s HIV-positive status. Medical doctors at another hospital eventually carried out the
evacuation procedure.
Unfortunately, the unfairness suffered by Georgina did not stop at the hands of Dr. Molokwu and his
hospital. In 2001, on an application for an accelerated hearing of the matter, the then presiding judge
in the case, Hon. Justice Caroline O. Olufawo of the High Court, barred Georgina from
entering the courtroom because of her HIV-positive status. In a shocking display of judicial
ignorance, Justice Olufawo further ruled that satisfactory expert evidence must be presented in court
to convince her that the judge and others would not become infected with the HIV virus as a result of
Georgina’s mere physical presence in the courtroom. SERAC appealed that decision and the Court
of Appeal remitted the matter back to the High Court for trial. Georgina testified in her case without
further restrictions or impediments.
In 2010, SERAC demanded and secured the arrest and prosecution of Dr. Molokwu, and
Shamsudeen Aileru, a law clerk in the law offices of Professor Abraham Adesanya, Senior Advocate
of (SAN), counsel to Dr. Molokwu. Pursuant to a Legal Advice issued by the Lagos State
Director of Public Prosecutions, dated September 28, 2010, the defendants were arraigned before the
Lagos State High Court, Ikeja, Lagos in The People of Lagos State V Shamsudeen Aileru & Dr. Alex
Molokwu (ID/50C/2011) for Perjury contrary to Section 118, and Conspiracy to commit a felony
contrary to Section 516, of the criminal code law Cap 17 Volume 2, Laws of Lagos State 2003. On
conviction, the offenses of conspiracy and perjury are punishable with 7 and 14 years imprisonment
respectively.
This prosecution was triggered by SERAC’s executive director’s petition to the Commissioner of
Police, Lagos State requesting immediate investigation and prosecution of the defendants for
conspiracy to commit perjury and perjury. Professor Adesanya’s law clerk, Mr. Aileru, deposed
falsely to an affidavit on oath that Georgina had died in her hometown. Georgina is alive and well.
The affidavit was filed in support of a motion seeking to dismiss Georgina’s lawsuit against Dr.
Molokwu and his hospital. Relying on information supplied by Molokwu the law clerk deposed to an
affidavit stating falsely that Georgina had died, and urged the court to dismiss the lawsuit being a
personal action. The false declaration was one of many efforts by Dr. Molokwu and his lawyers to
frustrate Georgina’s quest for justice in the matter of the wrongful termination of her employment
and other violations.
The defendants pleaded ‘not guilty’ to the charge and the prosecution opened its case on July 5, 2011
with Mr. Felix Morka, SERAC’s lead counsel in the civil matter, as its first witness. Georgina and
the police investigators also testified on the prosecution’s behalf. The prosecution closed its case on
the December 1, 2011. After dismissing a no case submission made on the Defendants’ behalf by
Professor Adesanya, the court directed the defendants’ to open their case. The case is currently
adjourned to October 31, 2012 for defense.
In an epochal decision, the Hon. Justice Y.O. Idowu of the Lagos High Court held as follows:
· That the purported termination of the Plaintiff’s employment is illegal, unlawful and actuated
by malice and extreme bad faith.
· That the Defendants’ action in subjecting the Plaintiff to HIV testing without her informed
consent constitutes an unlawful battery on her.
· That the Defendants’ action in not affording the Plaintiff pre-test and post-test counseling
services constitute an unlawful negligence of a professional duty to the plaintiff.
· That the Defendants’ action in denying the Plaintiff medical care on grounds of her HIV-
positive status constitutes a flagrant violation of the right to health guaranteed under article
16 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement)
Act CAP 10 Laws of the Federation of Nigeria and article 12 of the International Covenant
on Economic, Social and Cultural Rights (ratified by Nigeria in 1993).
· An order for 5 Million Naira (Five Million Naira) general damages for the wrongful
termination of the Plaintiff’s employment.
· An order for 2 Million Naira (Two Million Naira) being compensation for unlawful conduct
of HIV testing without the Plaintiff’s informed consent and for the Defendants’ negligence.
This decision represents a major victory for Georgina and for all those living with the HIV virus in
the country, and a major triumph of justice over illegality and unfairness. It is the first-ever judicial
pronouncement on the unlawfulness of HIV-based discrimination. The decision is also significant in
holding that conducting HIV testing without the individual’s informed consent is tantamount to
unlawful battery. Further, it is equally definitive on the point that conducting HIV test on an
individual without pre-test and post-test counseling constitutes unlawful negligence. The case also
establishes the principle that denial of medical care on grounds of HIV-positive status constitutes a
flagrant violation of the right to health. The monetary damages of 7 Million Naira awarded against
Dr. Molokwu and the Imperial Medical Centre sends a strong signal that this kind of unjustifiable
and unlawful discrimination against people living with HIV will no longer be tolerated. We salute
the courage and wisdom of Her Lordship, Hon. Justice Y.O. Idowu.

 

 

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