NPF & ANOR v. STATE (2020)

NPF & ANOR v. STATE

(2020)LCN/14403(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/YL/84C/2019

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1) NIGERIA POLICE FORCE 2) COMMISSIONER OF POLICE TARABA STATE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE TRIAL COURT CAN SUO MOTU AWARD COMPENSATION

WHETHER OR NOT AN ORDER CAN BE MADE AGAINST A PERSON WHO IS NOT PARTY TO THE PROCEEDINGS

In the case of Deputy Sherriff, Kaduna State High Court v. Keystone Bank Ltd. & Anor. (Supra), this Court held thus:
“The law is that an order cannot be made against a person who is not a party to the proceedings. See Babatola v. Aladejana (2001) 12 NWLR (Pt. 728) 597 at 615 Paras. B-D.” PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of Taraba State High Court sitting in Jalingo in Suit No. TRSJ/25C/2012 delivered by Y. A. Bashir J. on 30th June, 2014. Brief facts of the case are that Police Constable Danasabe Waziri as a Police Officer was posted to a special duty sometimes in the Year 2012, around Area Command/Secretariat Junction in Jalingo Local Government Area of Taraba State. He signed and collected from the office an assault rifle with 15 live ammunitions for that purpose. That while on the said special duty, vehicles were stopped and searched; then came one Elder Iroham with a pick up van. PC Danasabe was said to have stood behind Elder with his rifle and the next thing that was heard was a gun shot, then Elder came out from his vehicle shouting that he was shot and he has been killed. Elder later died at Federal Medical Center, Jalingo. PC Danasabe was arraigned, tried and convicted by the lower Court, sentenced to ten (10) years imprisonment. The Nigeria Police Force was ordered to pay N200,000,000.00 (Two Hundred Million Naira) as compensation to the family of late Elder

Iroham. Dissatisfied, the Appellants filed their Notice of Appeal by order of this Court granted on 17/1/2019. Notice of appeal filed on 30/1/2019. Appellants’ brief filed on 16/10/2019. The Respondent filed its Brief of argument on 17/01/2020, it was deemed as properly filed and served on 2/06/2020. The Record of Appeal was compiled and transmitted to this Court on 29/04/2019.

In the Appellants’ Brief, two issues are formulated for determination:-
1) Whether or not the trial Court wrongly applied the principle of vicarious liability in a criminal case? (Distilled from Ground 1 of the Grounds of Appeal).
2) Whether or not the order for the payment of compensation made suo moto by the trial Court against the Appellants even when they were not parties before the trial Court and without affording them the opportunity to be heard was made without jurisdiction? (Distilled from Grounds 2, 3 and 4 of the Grounds of Appeal).

On issue one, it was submitted that in passing its sentence, the trial Court at Page 96 of the Record of Appeal, held thus:
“The operation the accused was involved was a police duty to which he might have

been lawfully assigned. The Court hereby order the police to pay a sum of N200,000,000.00 (Two Hundred million Naira) only as compensation to the family of the Deceased who being the breadwinner left behind his wife, five children aged mother and other dependents.”

According to Counsel, from the above order made by the trial Court against the Appellants as reproduced above, it is obvious that the Appellants were ordered to pay the sum of N200,000,000.00 (Two Hundred million Naira) as compensation to the family of the deceased who was shot dead by PC Danasabe Waziri in their capacity as his employers, for the purpose of bearing the actionable conduct of their employee. That by this decision, the trial Court has employed and applied the doctrine of vicarious liability in a criminal case. That this Court has defined vicarious liability in the case of Bello v. Dadah & Anor. (2016) LPLER 40337 (CA) thus:
“At page 927 of Black’s Law Dictionary 7th Edition, Vicarious liability has been defined to mean “Liability that a Supervisory party (such as an employer) bears for the actionable conduct of subordinate or associate (such as an

employee) because of the relationship between the two parties”; with the derivation from Latin maxim “Respondent Superior” defined at page 1313 Black’s Law Dictionary 7th Edition aforesaid as: (Law Latin- Let the superior make answer) Torts. The doctrine of holding an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency based on the doctrine that “He who does a thing through another does it himself.”

That the Apex Court in the case of Ifeanyi Chukwu (Osondu) Company Ltd. v. Soleh Boneh (Nig.) Ltd. (2000) LPELR 1432 (SC) also defined the term thus:
“The term, vicarious liability has, rightly in my view, been defined to mean the case of one person taking the place of another in so far as liability is concerned.”

According to Counsel, there is no vicarious liability under the realm of criminal law, as transfer of criminal liability is unknown to the Nigerian Criminal Justice System or jurisprudence -Yusuf v. F. R. N. (2016) LPELR 41811 (CA) and Ananaba v. FRI-EL ABA PALM Nig. Ltd. &Ors. (2016) LPELR 40463

(CA). Counsel further submitted that the elements of crime are mens rea and or actus reus which are squarely found in an accused person thereby making criminal liability personal and cannot be transferred – PML (Nig.) Ltd. v. F. R. N. (2017) LPELR 43480 (SC). That in the light of the above cited authorities, the trial Court was in grave error when it misapplied the principle of vicarious liability in a criminal case by its order against the Appellants to pay the sum of Two Hundred Million Naira (N200, 000, 000.00) only to the family of the deceased as compensation due to the acts of PC Danasabe Waziri who was their employee. That the decision of the lower Court at Page 66 lines 4-8 of the Printed record is against the established and known principle of our criminal jurisprudence. He urged the Court to resolve issue one in favour of the Appellants.

As to issue two, it was submitted that Courts have no jurisdiction to grant relief not sought for and the case at hand is a criminal case where PC Danasabe Waziri was prosecuted by the Respondent who was convicted and sentenced by the trial Court. According to Counsel without any application for compensation, the

trial Court suo motu made an order, awarding compensation to the family of the deceased -Page 67 of the Record of Appeal. Reference was made by Counsel to the decisions of this Court and the Apex Court in Arab Contractors (O.A.O.) Nig. Ltd. v. Umanah (2012) LPELR 7927 (CA) and University of Jos v. Ikegwuoha (2013) LPELR 20233 (SC) respectively. That a careful perusal of the judgment of the trial Court at Page 67 of the Record of Appeal will reveal that the award of compensation against the Appellants was in favour of persons (wife, the five children and other dependants of the late Elder Iroham) who were not parties before the trial Court. That the law which is an ass, does not allow the Court the liberty of granting them relief they are not entitled to. According to Counsel the order was made without jurisdiction – MT ‘Delmar” & Anor. v. MT “Ane (Ex MT Leste”) & Ors. (2016) LPELR 40067 (CA) and Deputy Sheriff Kaduna State High Court v. Keystone Bank Ltd. & Anor. (2015) LPELR 25876 (CA) and P.D.P. v. Ekeagbara (2016) LPELR 40849 (CA). That the trial Court breached the Appellants’ right to fair hearing when it proceeded to

make an order against them without being heard -Audu v. F.R.N. (2013) 219 LRCN (Pt. 2) 223 at 226 Paras. K-Z. He urged the Court to resolve the second issue in favour of the Appellants, allow the Appeal and set aside the order of compensation made against the Appellants.

In the Respondent’s Brief, a sole issue is formulated for determination thus:-
“Whether the trial Court is clothed with the power to award compensation and was right to have ordered the Nigeria Police Force to pay the sum of N200,000,000.00 (Two Hundred Million Naira) as compensation to the family of the Deceased in this case” (Distilled from grounds 1 and 2 of the Appellants’ Notice of Appeal).

It was submitted that that Nigeria Police Force was not a party in the case leading to this Appeal. That the long settled principle of law states that a Court cannot make an order against a person who is not a party in a proceeding before it. That if an order is made against a person who is not a party in a case, it amounts to a violation of such person’s Fundamental right to Fair hearing as enshrined under Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

That the Appellants having not been parties to the proceedings leading to this Appeal, it is submitted that the order made against them by the trial Court when they were not parties to the said proceedings amounts to shaving their heads by the trial Court in their absence. That the Respondents respectfully concede to this Appeal.

The sole issue for determination in this Appeal is “Whether the trial Court wrongly applied the principle of vicarious liability in a criminal case”. The case at the trial Court was that after PC Dan Asabe was convicted and sentenced to 10 years imprisonment without the option of fine for the offence of Culpable Homicide not punishable with death contrary to Section 224 of the Penal Code Law, the 1st Appellant (Nigeria Police Force) in their capacity as his employers were ordered to pay as compensation to the family of late Elder Reuben Iroham the sum of N200,000,000.00 (Two Hundred Million Naira); for the purpose of bearing the actionable conduct of their employee. It therefore follows that the lower Court has employed and applied the doctrine of vicarious liability in a

Criminal case. The term vicarious liability has been defined by the Apex Court in Ifeanyi Chukwu (Osondu) Company Ltd. v. Soleh Bonieh (Nig.) Ltd. (2000) LPELR-1432 (SC) as follows:-
“The term, vicarious liability has, rightly in my view been defined to mean the case of one person taking the place of another in so far as liability is concerned.”

The issue for determination is whether there is transferred criminal liability under the Nigerian Criminal Justice system. In the case ofYusuf v. F.R.N. (2016) LPELR 41811 (CA), this Court Per Oho JCA held thus:-
“The settled position of the law is that there is no transfer criminal liability or Agency under the Nigerian Criminal Justice System. See DINA vs. DANIEL (2010) 11 NWLR (PT.1204) 137. See also the case of APC V. PDP & ORS (2015) 4 SCM 48 AT 99 where the Supreme Court, per FABIYI, JSC had this to say on the subject: “It is basic there is no vicarious liability in the realm of criminal law. Anyone who contravenes the law should carry his own cross.” Learned Appellant Counsel’s insistence on the application of the rules of Agency, i.e that the Appellant as

an agent acting on behalf of a disclosed principal; Beal Construction limited, reminds this Court of the proverbial drowning man who would catch at anything including a straw in order to stay afloat just to stay alive. What counsel had done in essence in this insistence on having the Court apply the principle of the law of Agency which is applicable only in civil matters as opposed to where crimes have been committee, is to insist on having the Court misapply the principles of law at the expense of the justice of this case.”

It therefore follows that the lower Court was in error when it awarded compensation of N200,000,000.00 (Two Hundred Million Naira) against the 1st Appellant for an offence committed by one of its employees. Issue one is therefore resolved in favour of the Appellants and against the Respondent. The second issue for determination is:
“Whether or not the order for compensation made suo moto by the trial Court against the Appellants when they were not made parties before the trial Court and without affording them the opportunity to be heard was made without jurisdiction”.

A careful scrutiny of the proceedings

before the lower Court especially Pages 66 to 67 thereof reveals that there was no application made for compensation. The lower Court held at Page 67 of the Printed record thus:
“The Court hereby orders the Police to pay sum of N200,000,000.00 (Two Hundred Million Naira) only as compensation to the family of the Deceased who being the breadwinner left behind his wife, five children, aged mother and other dependants”.

The issue for determination is whether the lower Court can suo motu award compensation or not? In the case of Mustapha v. F.R.N (2018) LPELR – 46565 (CA) this Court held thus:
“It is also a requirement for the order of compensation that same must have been sought by the prosecution at the trial, with evidence adduced to warrant the granting of same to the victim of the crime. See Ademola v. Sodipo (1992) 7 NWLR (Pt. 253) 251. The prosecution did not proffer evidence to warrant the granting of the order for payment of compensation to the victim of the crime, nor was there any application for same by the Mainstream Bank Plc. In view of the foregoing, I find and hold that the lower Court did not rightly order

for the payment of compensation to Mainstream Bank Plc in accordance with the law. The order for payment of N13Million to the Mainstream Bank Plc, was therefore not validly made. Same is hereby set aside. I resolve issue 2 in favour of the appellant. The appeal therefore partially succeeds, only to the extent that the order for payment of N13 Million to the Mainstream Bank Plc, is hereby set aside.”

Based on the above decision of this Court, the lower Court was in error when it awarded compensation without an application to that effect by the Prosecution. Furthermore, the lower Court awarded the compensation against the 1st Appellant who was not made a party before it. The order for compensation was therefore made against the 1st Appellant without jurisdiction. In the case of Deputy Sherriff, Kaduna State High Court v. Keystone Bank Ltd. & Anor. (Supra), this Court held thus:
“The law is that an order cannot be made against a person who is not a party to the proceedings. See Babatola v. Aladejana (2001) 12 NWLR (Pt. 728) 597 at 615 Paras. B-D.”

Issue two is therefore resolved in favour of the Appellants and against the

Respondents. The Appeal is meritorious and is therefore allowed. The order of the lower Court made against the Appellants to pay compensation of Two Hundred Million Naira (N200,000,000.00) to the family of late Elder Reuben Iroham contained in the Judgment delivered on 30th June, 2014 in Suit No. TRSJ/25C/2012, is hereby set aside. No cost awarded.

CHIDI NWAOMA UWA, J.C.A.: I agree.

JAMES SHEHU ABIRIYI, J.C.A.: I agree.

Appearances:

Ganki Hassan, Esq. For Appellant(s)

A. Philemon, Esq. For Respondent(s)