Dilly v Inspector General of Police and Others (CA/L/12/2013)[2016] NGCA 21 (22 June 2016) (CA/L/12/2013) [2016] NGCA 21 (21 June 2016);

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  • Dilly v Inspector General of Police and Others (CA/L/12/2013)[2016] NGCA 21 (22 June 2016) (CA/L/12/2013) [2016] NGCA 21 (21 June 2016);

 
 
In the Court of Appeal
Holden at Lagos

 

Between

Appellant

MRS GANIAT AMOPE DILLY   

and

Respondent

1. INSPECTOR GENERAL OF POLICE    
2. COMMISSIONER OF POLICE, LAGOS
3. DIVISIONAL POLICE OFFICER (DPO)
IJANIKIN POLICE STATION
4. SGT EMMA
5. ADETUNJI OYERINDE
6. TAIWO OLANIRAN
7. MRS SADIA SODIQ (IYA IBEJI)

JUDGMENT
(DELIVERED BY YARGATA BYENCHIT NIMPAR)

The Appellant brought an application by way of an originating summons under the Fundamental Rights (Enforcement Proceedings) Rules 2009 seeking to enforce the right to life of her son who died in Police custody upon his arrest by the Police. HON. JUSTICE O. H. OSHODI heard the application and dismissed it on the 9th October, 2012.  The main reason of the dismissal was that the Appellant cannot enforce the right to life of her deceased son (late Akindele Dilly).  Aggrieved by the said Ruling, the Appellant filed a Notice of Appeal dated 15th October, 2012 setting out 3 grounds of appeal.        

The brief facts of this appeal are that the Appellant filed an application under the Fundamental Rights procedure to demand compensation for her son who at the instigation of the 5th – 7th Respondents was arrested by the Police and refused bail until the Appellant gives the Police the sum of N50,000.00 an amount she could not raise. As she made effort to get the money, the 3rd Respondent called her to say her son is dead. The Appellant stated that some community members accompanied her to the station while the 5th, 6th, and 7th Respondents absconded from the community.  That the corpse of her son was initially deposited at Ademola Hospital before it was transferred to Badagry General Hospital and registered as an unknown person to create the impression that the corpse was that of an unknown person.  All efforts to get justice from the Respondents failed.  The applicant alleged that her son was severely beaten but the cause of death on the medical report was hypertension and cardiac arrest.  She stated that her son never had the history of hypertension before his arrest.  Furthermore, that the Respondents made attempts through the community traditional ruler of the community to persuade her to drop her demands for justice.  She then filed an application by way of an originating summons before the Lagos State High Court, Badagry to enforce the right to life of her son which was dismissed thus this appeal.  The Appellant’s claim before the trial court states thus:

a.    A Declaration that the arrest of the Applicant’s son by the Men and officers of the 1st, 2nd, 3rd respondents led by the 4th Respondent at the instance of the 5th, 6th and 7th Respondents on the 7th October, 2011, is wrongful, unfair, oppressive, illegal, unlawful, unconstitutional, null and void as it violates the Applicant’s son constitutional rights under section 33, 34, 35, 36, 39 and 41 of the 1999 Constitution of the Federal Republic of Nigeria.

b.    A Declaration that the detention of the Applicant’s son by the men and officers of the 1st, 2nd, 3rd Respondents in the station of the 3rd Respondent without medical attention and treatment from 7th October, 2011 to 10th October, 2011 is an infringement of the fundamental right of the Applicant’s son as guaranteed and protected by Section 33, 34, 35, 36, 39 and 41 of the 1999 Constitution of the Federal Republic of Nigeria.

c.    A Declaration that the merciless beating and torture of the Applicant’s son by men and officers of the 1st, 2nd and 3rd Respondent and the deprivation of medical treatment and sustenance from 7th October, which resulted in the untimely death of the Applicant’s son in the cell / custody of the 3rd Respondent is wrongful, illegal, unconstitutional, null and void as it violates the applicant’s son constitutional rights under Section 33, 34, 35, 39 and 41 of the 1999 Constitution of the Federal Republic of Nigeria.

d.    An Order of mandatory injunction compelling the 1st and 2nd respondents to institute disciplinary action and sanction against the 3rd respondent for negligently abdicating her statutory responsibility which resulted in the untimely death of the Applicant’s son.

e.    An order of mandatory injunction compelling the 1st and 2nd respondents to jointly and severally to immediately pay to the Applicant the sum of N1,000,000,000,000.00 (One Billion Naira) being general and exemplary damages for the infringement of the fundamental human rights of the Applicant’s son.

f.    The cost of this action assessed at N2,000,000.00 (Two million Naira) only.

g.    Such further order or other orders as this Honourable court may deem fit to make in the circumstances of this case.

    The Appellant was given leave to hear the appeal on the Appellant and 5th– 7th Respondents’ briefs only.  The Appellant’s brief settled by Olukoya Ogungbeje is dated 5th February, 2013 and filed on the same date. The 5th– 7th respondents Brief settled by L. B. Shopeyin is dated 10th December, 2014 filed on the 11th December, 2014.  Both briefs were adopted at the hearing of the appeal.  The Appellant distilled three (3) issues for determination namely:

1.    Whether the learned trial Judge when he held that the Applicant cannot bring the application to seek redress for the violation of the right to life of her deceased son under the fundamental rights (Enforcement Procedure) Rules 2009.

2.    Whether the learned trial Judge was right when he held that the Appellant suit is not competent under the Fundamental Rights (Enforcement Procedure) Rules 2009.

3.    Whether the learned trial judge was right when he Considered and relied on the contradictory and inadmissible paragraphs contained in the counter affidavits of the 1st, 2nd, 3rd, 4th, 5th, and 7th respondents.
    
The 5th – 7th Respondents formulated a sole issue for determination as follows:

“Whether the action as formulated can be enforced under the Fundamental Rights Procedure.”

The issue formulated by the Appellant shall be adopted for resolution in this appeal. They shall be taken in the order presented by the Appellant.

ISSUE ONE
    It is the submission of the Appellant that the learned trial court was wrong to have held that the Appellant cannot bring an action to enforce the right to life of her deceased son under the Fundamental Rights rules. That the Appellant has the locus standi to bring the action because the doctrine of locus standi has been abolished under the rules, cited Order 1 Rule 1 of the Fundamental Rights rules, paragraph E of the preamble to the Fundamental Rights rules and Section 46 of the 1999 Constitution. The Appellant also relied on the case of EHUWA V O.S.I.E.C (2006) 18 NWLR (PT 1012) 544 and AG LAGOS STATE V EKO HOTELS LTD (2006) 18 NWLR (PT 1011) 378. Appellant also submitted that the constitution be given its literal interpretation, relying on the cases of UWAGBA V FRN (2009) 15 NWLR (PT 1163) 91, NAFIU RABIU V THE STATE (1981) 2 NCLR 293, AG FEDERATION V ABUBAKAR (2007) 10 NWLR (PT 1041) 1 and therefore stated that the wordings of Section 46 (1) of the 1999 Constitution cannot be narrowly construed so as not to defeat the intended purpose, cited the case of EKUNDAYO V UNIVERSITY OF IBADAN (2000) 12 NWLR (PT 681) 220.  The Appellant submitted that to insist that only a citizen and subject of an infringement to life whose life has been taken away, can approach the court is an absurdity and is contrary to the letter and spirit of the 1999 constitution.  That the Appellant who is the mother of the deceased will be directly affected by the violation and as such comes under the purview of persons who can seek redress under Section 46 (1) of the constitution, referring to AHMAD V S.S.H.A (2002) 15 NWLR (PT 791) 539, GANI FAWEHINMI V AKILU (1987) 4 NWLR (PT 67) 898. Also submitted that in the light of the new trend on locus standi under the Fundamental rights procedure, any concerned person or organization can bring an action on the infringement of fundamental rights and therefore urged this court to resolve the issue in her favour.

    With respect to the Appellant’s arguments under this issue, the 5th – 7th Respondents submitted that the fundamental rights procedure adopted under section 3 (e) to the preamble of the Fundamental right rules, must be for the enforcement of the rights of a person known to law and not a dead person. Further submitted that there is no fact or deposition to support the relief that there is a breach of the Appellant’s right hence, the lower court was right to hold as it did.

RESOLUTION:    
    The 5th – 7th Respondents subtly raised an objection in their briefs without filing a proper notice of preliminary objection as required by the rules of this court. Order 10 rule 1 of the Court of Appeal rules 2011 provides as follows:

“A Respondent intending to rely on a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days-notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.

1.    If the respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing of thereof at the cost of the respondent or may make such other order as it thinks fit.”

The 5th – 7th Respondents did not file a Notice to rely on any preliminary objection neither did learned counsel mention it while adopting their Respondents’ Brief.  It is therefore obvious that the 5th – 7th respondents had no intention of relying on the preliminary objection. I shall not consider the objection incorporated in the brief, it is hereby discountenanced.

The Lower court in dismissing the claim of the Appellant held thus:
“It then follows that any legal incompetence that bedevils a party to a matter cannot be cured simply by that person suing as next of kin/friend. It then means that in the present suit the actual Applicant is Akindele Dilly, who is dead, and not his mother.  Since the actual applicant is dead, and being trite that a deceased person is not a juristic person known to law, a dead person cannot seek to enforce his fundamental rights, as it has none.”

    Continuing the trial judge went on to also say:

“From the facts before the court as provided, the application is filed to secure the rights of Akindele Dilly, who unfortunately is now dead and not that of Mrs Ganiat Amope Dilly.  Thus, the application is filed on behalf of a dead person.  In law, a dead person is not a juristic person. This being the case, a dead person cannot be an “Applicant”.

    The basic question to ask is who can apply to enforce a fundamental right?  The Fundamental Rights (Enforcement Procedure) Rules 2009 defines who an applicant is, in the following words:

“A party who files an application or on whose behalf an application is filed under the Rules.”

It is obvious therefore that an application can be filed on behalf of another going by the definition of an applicant in the rules itself. Reinforcing the definition is the Preamble to the Rules which states thus:

“The court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or stuck out for want of locus standi. In particular, human rights, advocates or groups as well as any non – governmental organisations, may institute human rights applications on behalf of any potential applicant.  In human rights litigation, the applicant may include any of the following:

i.    Anyone acting in his own interest

ii.    Anyone acting on behalf of another

iii.    Anyone acting as a member of, or in the interest of a group or class of persons.

iv.    Anyone acting in public interest

v.    Association acting in the interest of its members or other individuals or groups.

    The above listed possible applicants is a sharp departure from the 1979 Rules which was restrictive as it only recognized the locus standi of the victims and that probably influenced the trial court to rule in the direction it did.  The Preamble to the extant rules has over riding objectives which states thus:

“1.    The court shall constantly and conscientiously seek to give effect to the overriding objectives of these rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any law and whenever it applies or interprets any rule.

2.    Parties and their legal representatives shall help the court to further the overriding objectives of these Rules.

3.    The overriding objectives of these Rules are as follow:

a.    The Constitution especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them.

b.    For the purposes of advancing but never for the purposes of restricting the Applicant’s rights and freedoms, the Court shall respect municipal regional and international bills of rights cited to it or brought to its attention or of which the court is aware whether these bills constitute instruments in themselves or from parts of larger documents like Constitutions.  Such bills include –

(i)    The African Charter on Human Rights and Peoples Rights and other instruments (including protocols) in the African regional Human Rights system.

(ii)    The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations Human Rights system.

c.    For the purposes of advancing but never for the purpose of restricting the Applicant’s rights and freedom, the court may make consequential orders as may be just and expedient.

d.    The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated and the unrepresented.

e.    The court shall encourage and welcome public interest litigations in the Human rights field and no human rights case may be dismissed or stuck out for want of locus standi.  In particular, human rights activists, advocates or groups as well as any non- governmental organisation, may institute human rights application on behalf of any Applicant.  In human rights litigation the Applicant may include any of the following –

(i)    Anyone acting in his own interest

(ii)    Anyone acting on behalf of another person.

(iii)    Anyone acting as a member of, or in the interest of a group or class of persons

(iv)     Anyone acting in the public interest and Association acting in the interest of its members or other individuals or groups.

f.    The court shall in manner calculated to advance Nigerian democracy, good governance, human rights and culture pursue the speedy and efficient enforcement and realization of human rights.

g.    Human rights suits shall be given priority in deserving cases, when there is any question as to the liberty of the Applicant or any person, the case shall be treated as an emergency.”

    Preambles we all know can shed light on the purpose of an enactment or statute, it either restricts it or extends it depending on the language used, see the decision of this court, per TUR, JCA on the purport of the preamble to the Fundamental Rights Enforcement Procedure 2009 wherein he adopted the observation of Lord Normand in ATTORNEY GENERAL V H.R.H PRINCE ERNEST AGUSTUS OF HANOVER (1957) AC 456, thus:

“When there is a preamble it is generally in its recital that the mischief to be remedied and the scope of the Act are described.  It is therefore clearly permissible to have recourse to it as an aid to constructing the enabling provisions…”

    It an established practice in Public interest litigation and jurisprudence that a legal action is initiated for the enforcement of a public interest or general interest in which the public has interest or rights are affected.  It is therefore not necessary that the applicant has suffered any personal wrong to initiate proceedings under the fundamental rights procedure.  It is in that light that the African Charter also provided that any person whose rights has been, is being, or is likely to be infringed may apply to the court in the State where the infringement occurs or is likely to occur, for redress.

Part of the overriding objectives of the 2009 Fundamental Rights Enforcement Rules provides that no human rights case may be dismissed or struck out for want of locus standi.  This is in addition to the admonition to encourage public interest litigations in human rights litigation.

    Can the Appellant herein apply as next of kin to a deceased person?  It was KARIBI – WHYTE, JSC who said action will lie for the violation of the right to life by or on behalf of any person who has an interest in the continued existence of the deceased, see the case of NOSIRU BELLO V A. G. OYO STATE (1986) 5 NWLR (Pt. 45) 828.  If therefore public interest litigation is now allowed under the extant rules and no application should fail for want of locus standi, on what basis can the application by the Appellant fail on the ground that the mother of the deceased lacks the locus standi to make the application?  Would the fact that the victim is deceased deny his next of kin the right to litigate the breach of that right to life?  The trial judge held:

“Further, the rights provided for in section 33, 34, 35, 36, and 41 of the Constitution (as amended) are personal rights to the person concerned.  These rights cannot be transferred to another person, since that other person’s rights are not in issue.  This fact must be appreciated.”

    That holding has clearly demonstrated that the trial judge did not take the preamble and objectives of the 2009 Fundamental Rights Enforcement Procedure Rules into account.  Indeed, rights are personal but in enforcing the said right, a busy body is welcomed with open arms by the extant rules made by the Chief Justice of Nigeria in 2009.  Public litigation and representative action is allowed and therefore the trial judge erred in this regard.  I am persuaded by the judgment of OYEWOLE, J (as he then was) in the case of SHOBAYO V C. O. P, LAGOS STATE in Suit No. ID/ 760M/2008 delivered on the 15/1/2010 wherein he held thus:

“Insisting that only the citizen subject of an infringement can approach the court when such right is violated would create an absurdity.  This would imply the non – realization of a fundamental right expressly created by the Constitution.  This is more so in relation to the right to life when already contravened, for in this case, the citizen victim of the deprivation would have been dead.  Restricting redress for the violation of fundamental right to life is antithetical to the letters of the constitution and to avoid this anomaly, the next of kin of such deceased citizen must be permitted to enforce the right so allegedly deprived.  Depositions before the court indicate that the Applicant was the wife and next of kin of the deceased who reportedly died in custody of the respondent.  Denying her the right to maintain the action would create a situation never contemplated by the framers of the Constitution, as an enforceable right would thus have been created, the applicant without any contradiction was the wife of the deceased, a relationship not too distant to fathom.  That she will be affected by the deprivation of life of her husband goes without saying.  The wife of a deceased whose right was supposedly violated and comes to court within the purview of persons affected by the infraction who, could pursuant to section 46(1) of the Constitution, approach the court for redress.”

This was a decision brought to the attention of the court and which the trial court brushed aside on the flimsy excuse that it was not binding on it but merely of persuasive authority.
    
One might ask if representation is not allowed how then can violations to right to life be redressed when the victim of the deprivation would have been dead?  Right to life is in a class of its own because its violations range from attempt which is a process before full violation occurs which is when violation is completed.  Before completion the person can act for himself.  When, however, such violation has gone to the irreversible stage such as death, then, such can only be litigated by a next of kin.  Failure to accommodate this special class of right and its peculiarities will be against the grain of the Constitution because that is the only right that can be redressed in the absence of the possessor of the right.  The right to life of a dead person can be litigated in the court.  Failure to address such violations will create a monstrous situation where infractions will continue unabated and without redress thereby reducing such fundamental right to chasing shadows or holding the wind.  And definitely, it will be contrary to the constitutionally guaranteed right to life, the African Charter on Human Rights and United Nations Universal Declaration of Human Rights, 1948 too.  No court should be part of such retrogressive jurisprudence of human rights.

    Furthermore, the constitution of the Federal Republic of Nigeria also provided for any person to take action or initiate proceedings where any of the rights are in issue, it provides thus:

“Any person that alleges that any of the provisions of chapter IV of the constitution has been, is being or likely to be contravened in relation to him may apply to high court for redress.”
    In interpreting any statutory or constitutional provision the apex court in a plethora of cases said that our courts should be liberal so that the intendment of the instrument or constitution can be met.  ONNOGHEN, JSC in the case of C.C.C.T.C.S. LTD & ORS V EKPO (2008) 6 NWLR (Pt. 1083) 362 S.C held as follows:

“It is settled law that where the words of a statute or Constitution are clear and unambiguous, they call for no interpretation, the duty of the court in such a circumstance being to apply the words as used by the legislature.”

It is also the rule that where the words are plain, clear and unambiguous, effect should be given to them in that ordinary and natural meaning.  And where an interpretation will result in defeating the object of the statute or Constitution, the court would not lend its weight to such an interpretation.  In other words, the language of the statute would not be stretched to defeat the aim of the statute or the Constitution, see A. T. LTD V A.D.H. LTD (2007) 15 NWLR 118 S.C.  It is in the light of above therefore that the words of section 46 of the 1999 Constitution be interpreted to give meaning to the intendment of the drafters of the Constitution which is that “any person” includes the next of kin of a person whose rights have been violated and “in relation to him” means such a relationship that inures such interest as to be affected by the said violation especially in right to life.  In this case it means a spouse, parent, child or any such relationship.  Going by the preamble to the Fundamental Rights Enforcement Rules, it could also include a Non – Governmental Organization.  This therefore makes the reasoning of the trial judge flawed.  The distinction between a next of kin and a real victim instituting an action in other claims cannot apply in Fundamental Rights proceedings which are special.  One of the peculiarities is that lack of locus standi cannot defeat an application.  We have since moved from the era when access to justice was restricted, it is a new dawn where everybody should be given an opportunity to ventilate his grievances and in this case, the application should not fail for want of locus standi.  See AHMAD V S.S.H. A (2002) 15 NWLR (Pt. 791) 539 at 563 where SALAMI, JCA held thus:

“The combined effect of reading these sections together shows that there is no limitation or qualification to the nature of persons who may seek to enforce contravention of their right under  chapter IV of the constitution is beyond any argument and are without exception or qualification for all persons. The sections undoubtedly give access to court for the enforcement of the rights guaranteed under chapter IV of the constitution to all manner of people, without exception, who claim their rights have been trampled upon; just as section 6(6) gives access to court for the enforcement and determination of all civil rights and obligation including right guaranteed under chapter IV of the constitution. I am encouraged in this view by article ‘a’ or ‘any’ qualifying the word person wherever they occur’’.

Flowing from the above therefore, the trial court fell into serious error when it held that only the victim of a violation can institute an action for redress.  This issue is hereby resolved in favour of the Appellant.

ISSUE TWO
    With respect to this issue, the Appellant submitted that the action was basically to challenge the violation of the fundamental right to life of her deceased son, the unlawful arrest and illegal detention of her deceased son.  That the claim is located within Chapter IV of the 1999 Constitution, particularly Section 33 of the 1999 constitution and is procedurally competent to be instituted under the fundamental right procedure.  The Appellant relied on the case of AMALE V SOKOTO LOCAL GOVERNMENT (2012) ALL FWLR (PT 618) 833 in support.

    In response, the 5th – 7th Respondents submitted that the Appellant’s claim is not strictly for the enforcement of fundamental human rights and the lower court was right when it dismissed the claim.  That the procedure made for the enforcement of fundamental rights by Section 46 (1) of the 1999 Constitution is a strict one, citing DANGOTE V C.S.C PLATEAU STATE (2001) 9 NWLR (PT 717) 132, TUKUR V GOVT OF TARABA STATE (1997) 6 NWLR (PT 510) 549 and that for the procedure to be enforceable, it must be clear from the processes that what is sought to be enforced is the deprivation of fundamental rights, cited WAEC V ADEYANJU (2008) ALL FWLR (PT 428).

RESOLUTION:
The 5th – 7th Respondents’ sole issue relates to the second issue of the Appellant.  They shall be considered here.  The second issue distilled by the Appellant questions the finding of the trial judge that the application of the Appellant is not one that can come under the Fundamental Rights (Enforcement Procedure) Rules, 2009.  The trial court held as follows:

“Being guided by the above principle of interpretation and meanings of person and a citizen, it is not difficult for this court to find that the Fundamental Rights (Enforcement Procedure) Rules does not permit for a representative action on behalf of a dead person. As such, the applicant suing in a representative capacity has commenced this action under a special procedure on a wrong footing”.

I agree with the 5th – 7th Respondents that it is only action founded on breach of fundamental rights guaranteed by the Constitution or where the main relief is for the enforcement of a fundamental right that can be enforced under the Procedure.  Where the relief under fundamental rights is ancillary to another main claim, then the procedure cannot be adopted or allowed to be used.  See DANGTOE V C.S.C. PLATEAU STATE (2001) 9 NWLR (Pt. 717) 132; OGWUCHE V MBA (1994) 4 NWLR (Pt.336) 75 and EFCC V EKEOCHA (2008) 14 NWLR (Pt. 1106) 161.  The simple rule therefore is that the principal claim must be a relief for the enforcement of a fundamental right covered by section 33 of the 1999 Constitution.  The question to answer here is whether the Appellant qualified to come under the rules in terms of its claims.  It must be noted that the strict provisions of the 1979 Fundamental Rights rules have been altered in the 2009 rules.  The current position is therefore a radical departure which expanded the space of fundamental rights litigation where even public interest groups can litigate on behalf of those whose rights have been violated.  To stay at the bus stop of the 1979 rules would do violence to the desired principle of access to justice.  
    
It usually from the reliefs that one can determine whether they fall under fundamental rights or other heads of claim, see AMALE V SOKOTO LOCAL GOVERNMENT (2012) ALL FWLR (Pt. 618) 833 where the court held:

“The correct approach in any claim for the enforcement of fundamental Rights is to examine the reliefs sought, the grounds for such relief and the facts relied upon. Where the facts relied upon discloses a breach of the fundamental rights of the applicant as the basis of the claim, there is a redress through the Fundamental rights (Enforcement Procedure) Rules 1979”.

For the reliefs reproduced earlier in the judgment, it is clear that all conveniently fall under the fundamental rights proceedings.  If not, what then is the principal claim that will make the fundamental right aspect ancillary to?  I cannot see any of the reliefs that belong to another class of claims.  The reliefs herein therefore are reliefs that can fall under fundamental rights procedure.  The 5th – 7th Respondents failed to identify the area of tort that the reliefs fall under and conceded in their brief of argument that paragraph 3(e) to the preamble gives the appellant the right to institute proceedings under Fundamental Rights Rules.  Having commenced the proceedings under the 2009 Rules and having found for the Appellant under issue one above, the claim herein can conveniently be situated under the Fundamental Rights (Enforcement Procedure) Rules 2009.  I therefore resolve this issue in favour of the Appellant.

ISSUE THREE
    Under this issue, the Appellant argued that the lower court erred in law to have considered the contradictory paragraphs and legal arguments and conclusions contained in the counter affidavit of the Respondents rather than rejecting them pursuant to Section 115 (1) (2) of the Evidence Act 2011.  Also relied on the case of NIGERIAN LNG LTD V AFRICAN DEVELOPMENT INSURANCE CO LTD (1995) 8 NWLR (PT 416) 669 and ABU V ALELE WILLIAMS (1992) 5 NWLR (PT 241) 240 and submitted that the court below should have relied instead on paragraph 11 of the 1st – 4th Respondents’ counter affidavit where the violation of the fundamental right of the deceased was admitted.

However, the 5th – 7th Respondents did not react to this issue in their brief of argument.

RESOLUTION:
      This issue challenges the consideration of the Respondents counter affidavit by the trial judge in dismissing the application.  Appellant contends that the affidavits are contradictory, full of legal arguments, prayers and conclusions and should have been struck out.

    I have gone through the judgment of the trial court and what I find is that the trial judge dismissed the application on the basis of lack of locus standi of the Appellant and the fact that the victim of the violation is deceased and therefore no other person whether human or corporate can bring an application for redress before the court.  I do not see where the trial court relied on the counter – affidavits to dismiss the claim.  The claim was not considered on its merits but competence of parties simple.  This issue is not made out and is hereby resolved against the Appellant.

    The Appellant in the Notice of Appeal sought the following reliefs:

“a.    An order allowing the appeal and granting the claims / reliefs of the Appellant in her originating motion dated 19th December, 2011.

b.    Such further or other orders as this Honourable court may deem for to make in the circumstances of the case.”

Having sought for the determination of the claims on the merit and because the claim is one that is fought on affidavit evidence, to send it back for retrial will cause parties a lot of expenses and time.  This court has general powers under which it can do justice to matters of this nature.  Section 15 of the Court of Appeal Act provides thus:

“The Court of Appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant below is authorized to make and grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purposes of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to re-hear by a court of competent jurisdiction.”

The section uses the word ‘may’ in its opening phrase. And the essence of the power in this section is to enable the court determine the real question in controversy between the parties in the appeal.  The circumstances under which the powers can be exercised have been streamlined by the apex court.  See the case of EZEIGWE V NWAWULU (2010) 4 NWLR (Pt. 1183) 159 S.C. thus:

“Before the Court of Appeal can invoke and exercise its powers under Section 15, such under mentioned factors must exist –

i.    The question must be a ground of appeal

ii.    The High Court from which the matter emanates must have jurisdiction in the matter. Jurisdiction of the High court is the prerequisite for the invocation of the provisions of section 15 by the court of appeal.

iii.    Availability of the necessary materials to consider and adjudicate in the matter.

iv.     The length of time between the disposal of the action at the trial court and the hearing of the appeal.

v.    The interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial court for rehearing and the hardship such an order would cause on either or both parties in the case.”

It is obvious that all the preconditions to the exercise of the powers under section 15 by this court are made out. More fundamentally, it is a case of fundamental rights that the Practice Directions of this Court has directed it be given accelerated hearing. The matter was initiated in 2011, judgment at the trial court in 2012 and it is now 2016. To send it back would further delay the matter.  It is in the interest of justice to now consider the claim on its merit.

    The claim was highlighted earlier in this judgment and duly supported by the relevant processes.  The applicant filed a further affidavit in response to the counter affidavits. The 1st – 4thRespondents filed a counter affidavit of 26 paragraphs deposed to by the 4th Respondent and a written address attached.  The 7th Respondent filed a 58 paragraphs counter affidavit along a written address, presumably on behalf of the 5th and 6th Respondents.

    The facts relevant to this application were highlighted earlier. It is not disputed that the son of the applicant died in the custody of the 1st – 4th respondents.  The 1st – 7th Respondents disputed the cause of the arrest and whether the deceased was beaten or not.  There was an eye witness affidavit as to the beating before arrest.  The refusal of bail by the 1st – 4th Respondents is also not disputed neither was the demand for N50, 000, 00. before bail.  The sudden disappearance of the 5th – 7th Respondents from the community immediately the death of the victim was announced was not also denied.  The Hospital where the 1st – 4th Respondents deposited the corpse attended to the corpse in the absence of the applicant.  The post mortem examination was conducted without the knowledge of the applicant and medical report was also secured after meetings were held with the doctor and in the absence of the applicant.  The facts deposed to by one Sarumi Oluwanifella is very instructive and clearly shows the roles played by the 5th– 7th Respondents before the arrest of the deceased.  It was not a case of arrest upon a complaint but arrest after thorough beating by the 5th and 6th Respondents while the 7th Respondent blocked everybody from rescuing the deceased.

    The 1st – 4th Respondents denied responsibility but admitted there were efforts to broker peace between the 5th – 7th Respondents and the applicant after the death of the deceased.  They emphasized the cause of death.  The counter affidavit of the 7th Respondent narrated how the party for the naming ceremony ended peacefully and as they were packing things up,  the deceased appeared drunk, unruly and created a scene while shouting that he is a member of a cult.  That the 5th Respondent reported to the Police who came to arrest him.  She confirmed the refusal of bail by the 1st – 4th Respondents because the applicant was a woman and cannot take any body on bail.  She admitted paying the sum of N21,000.00 to secure the release of her daughters who were also picked by the Police after the death of the deceased.  This is in confirmation of the applicant’s allegation that N50,000,00 was demanded from her for the release of her son.  She also confirmed efforts by the traditional ruler of the area to broker peace.

The Respondents contributed money for the burial of the deceased. The written address dwelt on the competence of the parties and whether the reliefs are those that can be granted under the Fundamental Rights (Enforcement Proceedings) Rules.

    The appeal having resolved the issue of parties and whether the reliefs can come under the Enforcement of Rights Rules. I just have to resolve the merit of the application.  Having admitted that the deceased died in Police custody and bail was refused; in view of the cause of death are the Respondents liable?  The starting point is the fact that the counter affidavit of the Respondents are contradictory. The 7th Respondent came disrupting the party and the 5th respondent reported the matter to the Police while down in the same counter affidavit the cause of arrest was the attempted rape of her twin daughters.  The Police denied any fracas when they went to arrest the deceased.  They emphasized on the cause of death.

    The complaint and arrest could be legitimate.  The denial of the beating the deceased is weak and considering the contradictions in the counter affidavits cast doubt on the version of events put forward by the Respondents.  The denial of bail and failure to arraign the deceased within the constitutionally allowed period is a breach of the fundamental rights of the deceased.  With respect to the death of the deceased and the circumstances leading to the death, the medical report stated that the cause of death was hypertension which caused cardiac arrest.  The allegation of dumping the corpse as that of an unknown person; having private meetings with the doctor who performed the post mortem examination and before performing the post mortem examination without the knowledge of the family all cast doubt on the case of the 1st to the 4th Respondents.  Again, why contribute money to the burial of the deceased?  The established facts are that the Respondent beat up the deceased and dumped him in Police cell.  Why then did the 1st – 4th Respondents dump his body as that of an unknown person in the Hospital?  While he was a suspect he had an identity, one that was good enough to demand N50,000.00 for his bail but after death the deceased lost his identity.  There is no doubt that the Respondents contributed to his death even if the final blow that broke the camels back was cardiac arrest. Definitely the circumstances leading to the death of the applicant’s son clearly show that his right to life was violated by the beating before death. There is nothing wrong in giving medical care to suspects kept in Police custody indefinitely. The choice to keep suspects in custody without bail is one that should include providing adequate medical care to such suspects. A situation where people arrested could have been released on bail but denied bail until money is deposited is certainly reprehensible and must be condemned.  

I agree with the applicant that the right to life of her son was violated and therefore damages must follow for that violation.  The applicant is entitled to a remedy.  A remedy was defined as the manner a right is enforced or satisfied by a court when harm or injury, recognized by society as a wrongful act, is inflicted upon an individual, see Legal dictionary.thefreedictionary.com and the case of BELLO V A.G, OYO STATE (1986) 5 NWLR (Pt. 45) 828 where OPUTA, JSC quoting HOLT, C.J in the now famous case of ASHBY V WHITE (1703) postulated the principle that:

“If a Plaintiff has a right he must of necessity have the means to vindicate it, and a remedy, if he is injured in the enjoyment or exercise of it; and indeed, it is a vain thing to imagine a right without a remedy; for want of right  and want of remedy are reciprocal’.  The maxim ‘Ubi jus ibiremedium is simply the latin rendition of the above principle.  The maxim is so fundamental to the administration of justice that where there is no remedy provided by common law or statute, the courts have been urged to create one.  The courts cannot therefore be deterred by the novelty of an action”.

In a simple way there cannot be a wrong without a remedy and as AUGIE, JCA put it

“it is a hollow concept to imagine a right without a remedy.  The law being an equal dispenser of justice leaves none without a remedy and that is Ubi jus ibiremedium (where there is a right there is a remedy) which courts are enjoined to apply, whether or not the wrong is remedial under a known head of tort or form of action.” See JIDE ARULOGUN V COMISSIONER OF POLICE & ORS (2016) LPELR 40190 (CA).

See also the case of LABODE V OTUBU (2001) 7 NWLR (Pt. 712) 256 and FBN PLC V ASSOVIATED MOTORS CO. LTD (1998) 10 NWLR (Pt. 570).

In considering the quantum of damages to award for a breach of fundamental right, certain factors come to the fore and they are:

a.    the frequency of the type of violation in recent times;
b.    the continually deprecating value of the naira;
c.    the motivation for the violation;
d.    the status of the applicant; and
e.    the undeserved embarrassment meted out to the Applicant including pecuniary losses.

See AJAYI V A.G., FED (1998) 1 HRLRA 373 and ARULOGUN V COMMISSIONER OF POLICE, LAGOS STATE (2016) LPELR – 40190(CA) again AUGIE, JCA said thus:

 “In fixing an amount for the infringement of fundamental rights, the following factor, inter alia, will be taken into consideration – (see AJAYI V A. G., FED (1998) 1 HRLPA 373) – (a) the frequency of the type of violation in the recent times; (b) the continually depreciating value of the Naira; (C) the motivation for the violation; (d) the status of the Applicant; and (e) the undeserved embarrassment meted out to the Applicant including pecuniary losses.”

It is settled that for award of damages to compensate the victims of human rights violation, it must reflect the economic reality in the country.  See ONOGORUWA V I.G.P (1993) 5NWLR (Pt. 193) 593, wherein it was held thus:

“In these days of racing inflation where the buying or purchasing power of the Naira falls drastically (and painfully so) every day and, therefore, not commensurate to the quality and quantity of goods bought, a judge should, in the assessment of damages, consider the current market situation, it will be most unrealistic to ignore this fundamental aspect and merely theorize with principle of law and facts and figures presented to him in court by counsel and witnesses. While the Judge is not expected to play the role of a housewife of sangross Market, Lagos, Kasuwan Kurmi, Kano or the Ogbete Market of Enugu by sampling prices of goods randomly, he must always remind himself that market prices escalate by leaps and bounds and they affect the purchasing power of the naira”, quoting TOBI, JCA (as he then was).

The erudite jurist went on to paint a picture of the Naira in this light:

“The Naira is no longer a stable and enduring currency.  It floats in the money market adversely. It also floats in the Nigerian wind not because of its physical lightness but because of its loss of monetary value. After all, the Naira is now one heavy coin.

And AUGIE, JCA, asked, if that was in 1993; what would the erudite Jurist say of the naira in 2016?  I add my voice that the value of the Naira has become an embarrassment to the citizens of their Nation.  

Taking above factors into account, even though the applicant claimed particular sums in the application, the court is not bound by it and can do its own assessment based on above factors.  The deceased was a young person with many more years to live; there was brutality involved, there is frequent occurrence of such violation in the country and the naira as observed above have become a mere coin.

    Consequently therefore, the application is meritorious and prayers A and C are granted, under prayers F, the sum of N5,000,000.00 (Five Million Naira) only is hereby awarded in favour of the applicant being damages for breach of the right to life of the deceased, Akindele Dilly.

The appeal hereby succeeds and the Judgement of the trial court delivered by HON. JUSTICE O. H. OSHODI on the 9th October, 2012 is hereby set aside.

Cost of N50,000.00 in favour of the Appellant.

JOSEPH SHAGBAOR IKYEGH, J.C.A.

I had the honour of reading in print the lucid judgment prepaid by my learned brother, Yargata Byenchit Nimpar, J.C.A., with which I agree and add that damages for breach of fundamental rights are compensatory vide Jim-Jaja v. C.O.P. Rivers State (2013) 6 NWLR (pt. 1350) 225.

TIJJANI ABUBAKAR, JCA

I read before now, the lead Judgment just rendered by my learned brother Nimpar JCA, I am in agreement with the reasoning and conclusion and adopt the entire Judgment as my own with nothing extra to add.      

Counsel

O. E. OGUNGBEJE
Y. ELETO                
P. E. OWOIFIE

L. B. SHOPEYIN