Can the constitutional right to life of a dead man be enforced by his dependants?
In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos
ON TUESDAY, 30TH OCTOBER, 2018
Suit No: CA/L/1078/2016
Before Their Lordships:
TOM SHAIBU YAKUBU, JCA
UGOCHUKWU ANTHONY OGAKWU, JCA
GABRIEL OMONIYI KOLAWOLE, JCA
1. THE NIGERIA POLICE FORCE
2. THE COMMISSIONER OF POLICE, LAGOS STATE
3. THE DIVISIONAL POLICE OFFICER, SHOGUNLE POLICE STATION, IKEJA
4. CORPORAL EMEJO GABRIEL
1. MRS. SHERIFAT AZEEZ OMOTOSHO
(FOR HERSELF AS NEXT OF KIN OF AZEEZ OMOTOSHO, DECEASED)
2. LITTLE MISS ALIYA OMOTOSHO
3. LITTLE MISS QUOWIYAT OMOTOSHO
4. LITTLE MISS NOSIRAT OMOTOSHO
LEAD JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A.
FACTS OF THE CASE
BY an Originating Summons filed on 31st December 2013, the Respondents as Applicants before the Federal High Court, Lagos Division, commenced proceedings for the enforcement of their fundamental rights as widow and orphan, children of Azeez Omotosho (Deceased) who was said to have been shot dead by the Police.
The Respondents presented the following questions for determination in their Originating Summons:
1.Whether the killing/murder in cold blood of Azeez Omotosho by the respondents through the 4th respondent is not unlawful and an infringement of the fundamental human right to life of Azeez Omotosho, which right is guaranteed by the 1999 Constitution and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990?
2.Whether the killing/murder of Azeez Omotosho by the respondents in the full view and in the presence of the 1st to the 4th applicants being his wife and little children does not amount to torture, degrading and inhuman treatment of the 1st to the 4th applicants and thus, the infringement of their fundamental human right of freedom from torture, degrading and inhuman treatment which right is guaranteed by the 1999 Constitution and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990?
3. Whether the murder of Azeez Omotosho (who was the bread winner of the applicants, husband of the 1st applicant and father of the 2nd to the 4th applicants) by the respondents does not amount to disrespect to the dignity of the person of the applicants and a threat to the right to life of the applicants which rights are guaranteed under the 1999 Constitution and under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990?
4. Whether the murder of Azeez Omotosho (who was the bread winner, family head of the applicants, husband of the 1st applicant and father of the 2nd to the 4th applicants) by the respondents does not amount to an infringement of the right to a family of the applicants which right is guaranteed under the 1999 Constitution and under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990?
The Respondents claimed principal and consequential reliefs. The action was heard on the affidavit evidence and written addresses filed by the parties, and in a considered judgment delivered on 24th June, 2014, the Federal High Court entered judgment in part for the Respondents.
The Appellants were dissatisfied with the judgment and appealed against the same. The Respondents were equally dissatisfied with part of the judgment refusing some of the reliefs they claimed. So they filed a cross appeal.
ISSUES FOR DETERMINATION
The Court determined the appeal on these issues couched as follows:
1. Whether the action of the Respondents at the lower court as constituted was competent to confer the requisite jurisdiction on the lower court to proceed to entertain the action of the Respondents?
2. Whether the Appellants were liable for the death of the deceased?
3. Whether the evidence before the Court justifies the decision of the lower court particularly in awarding the sum of N250,000,000.00 to the Respondents?
Whether the trial court was right to discountenance the Cross Appellants’ relief no. 1 at the trial for the reasons it advanced.
APPELLANT’S COUNSEL SUBMISSIONS
On issue one, the Appellants submitted that the Federal High Court was not competent to entertain the matter as the action was not initiated by due process of law and the court therefore did not have the requisite jurisdiction.
It was further submitted that the 2nd-4th Respondents were minors who did not have the legal capacity to sue in their own name except through their next friend or guardian ad litem.
On issue two, the Appellants submitted that they are not liable for the death of the deceased.
It was contended that the allegation against the 4th Appellant is murder and borders on criminality, in which case the 1st-3rd Appellants will not be vicariously liable since the principle of vicarious liability is inapplicable in criminal cases.
Arguing issue three, the Appellants posited that the facts do not justify the damages awarded since the breach of the fundamental rights was not established by the facts.
It was further stated that the 2nd-4th Respondents, not having legal capacity since they did not sue through their next of kin, cannot take benefit of the action.
The Cross Respondents argued that the lower court refused the Cross Appellants relief 1 on the premise that it was founded in tort and cannot constitute part of the claims under the Fundamental Rights (Enforcement Procedure) Rules.
RESPONDENT’S COUNSEL SUBMISSIONS
The Respondents submitted that the action as constituted is competent since the Rules allow for fundamental rights cases to be initiated by any process accepted by the court.
It was stated that originating summons is a process accepted by the lower court for commencement of an action, and that the facts of the case were not disputed since the mere filing of a counter affidavit did not make the facts disputed.
It was asserted that since the 1st Respondent has legal capacity, the presence of the 2nd-4th Respondents becomes insignificant since misjoinder of parties cannot defeat an action.
On issue two, the Respondents maintained that the lower court rightly held the Appellants liable for the death of the deceased.
The Cross Appellants submitted that the lower court was wrong to have discountenanced their relief 1 in the action wherein they sought to enforce the right to life of the deceased. It was stated that the Cross Appellants have an interest in the continued existence of the deceased and that it is settled law that the constitutional right to life of a dead man can be enforced by his dependants.
RESOLUTION OF ISSUES
In resolving issue one, the court held that the mere filing of a counter affidavit does not automatically make the facts disputed and requiring oral evidence and ordering of pleadings. See IKPEAZU vs. EKEGBARA (2016) LPELR (40847) 1 at 39.
The court further held that the issue of whether a court is to convert an originating summons to a writ of summons because the facts are contested remains within the discretion of the court, and the lower court, having so exercised discretion that there were no disputes as to facts in the affidavits, the lower court rightly heard the matter as commenced by originating summons.
On the contention that 2nd-4th Respondents were minors who did not have the legal capacity to sue in their own name except through their next friend or guardian, the court held that the 1st Respondent has the requisite juristic capacity and since misjoinder of parties cannot defeat an action, the joinder of the 2nd-4th Respondents is not fatal, the only consequence will be the striking out of their names.
Accordingly, the 2nd-4th Respondents’ names were struck out. Issues one was therefore resolved partly in favour of the Appellants and partly in favour of the Respondents.
Resolving issues two, the court kowtowed to the view eloquently expressed by the court in the case of OMONYAHUY vs. IGP (2015) LPELR (25581) 1 at 70, and held that the criminality involved in the act of unlawful killing of the deceased Azeez Omotosho does not deprive the Respondents from maintaining an action to enforce their constitutionally guaranteed right to dignity of human person.
On the decision of the lower court that it was the Appellants counter affidavit that was self-contradictory and that there was no need to take oral evidence to resolve non-existent conflict in the affidavits of the parties, the court held that the self-contradictory nature of the Appellants affidavit, having destroyed whatever facts the affidavit tended to establish, the facts in the Respondents affidavit remained unchallenged and the lower court rightly acted on the same to enter judgment for the Respondents. This issue was resolved against the Appellants.
On issue three, the court held that the lower court, having so found and held that the Appellants were liable for the death of the deceased, thereby infringing the fundamental rights of the Appellants, was entitled to award damages in their favour for the proven infringement of their fundamental rights.
The court however held that having struck out the 2nd-4th Respondents who are minors for not having the legal capacity to maintain an action, no award can be made in their favour. This issue was therefore partly resolved in favour of the Appellants.
The court found that the lower court was wrong in its holding that relief 1 of the claim was founded in tort and proceeded to discountenance the same.
Accordingly, the said relief 1 succeeded and the 1st Cross Appellant was awarded the sum of N40million as compensation for the infringement of the fundamental right to life of the deceased. The cross appeal therefore succeeded.
On the whole, the main appeal of the Appellants/Cross Respondents succeeded in part; just as the cross appeal of the Respondents/Cross Appellants succeeded. The total sum of N100million was awarded as damages in favour of the 1st Respondent/Cross Appellant.
DR. MUIZ BANIRE (SAN) with him, OMOTAYO OLATUNBOSUN, ESQ., A. B. MUNIRUDEEN, ESQ. and DR. NAJEEM AMODU – For Appellants/Cross Respondents
N. O. AGWULONU, ESQ. – For Respondents/ Cross Appellants
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