IGP & ORS v. UCHENWOKE & ORS (2020)

IGP & ORS v. UCHENWOKE & ORS

(2020)LCN/14449(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Thursday, July 09, 2020

CA/AW/245/2018

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

INSPECTOR GENERAL OF POLICE 2. COMMISSIONER OF POLICE, ANAMBRA STATE 3. THE NIGERIA POLICE FORCE APPELANT(S)

And

MRS. CHIDINMA UCHENWOKE 2. MRS. CHIKAANYIMA UCHENWOKE (Suing Through Her Next Of Friend MRS. CHIDINMA UCHENWOKE) 3. MR. CALLISTUS UCHENWOKE 4. CORPORAL JULIET EKWUEME 5. CORPORAL UGOCHUKWU OBIAKOR 6. CORPORAL RAPHAEL CHIKE RESPONDENT(S)

RATIO

THE REMEDY OF “UBI JUS, UBI REMEDIUM”

It is trite that where there is a right as in this case, the law prescribes a remedy “Ubi jus, ubi remedium”.
In DILLY V. I.G.P. (2016) LPELR – 41452, this Court listed the factors to be considered in the award of damages in fundamental right cases. They include but not limited to:
1. The frequency of the type of violation in recent times.
2. The continual depreciation of the Naira.

3. The motivation for the violation.
4. The status of the applicant and
5. The undeserved embarrassment meted out to the applicant including pecuniary losses. PER NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The 1st, 2nd and 3rd Appellants and the 4th, 5th and 6th Respondents herein were the Respondents at the trial Court in the Suit filed by the 1st, 2nd and 3rd Respondents herein as Applicants. Judgment was entered against the said 1st, 2nd and 3rd Appellants and the 4th, 5th and 6th Respondents herein in favour of the 1st, 2nd & 3rd Respondents by I. N. Oweibo, J, of the Awka Division of the Federal High Court in Suit NO FHC/AWK/CS/137/2016 delivered on the 9th of November, 2017.
This appeal revolves round the said judgment.

SUMMARY OF FACTS:
The 1st, 2nd and 3rd Respondents commenced this Suit at the trial Court seeking for the enforcement of two fundamental right breaches. The first breach relates to the unlawful killing of one Late Mr. Chukwunonso Uchenwoke (the deceased) by the 4th, 5th and 6th Respondents (men of the Nigeria Police Force attached to the Okpoko Police Division, Onitsha, Anambra State) in the course of performing their official duty of effecting his arrest.

The second breach relates to the treatment meted out on the 1st Respondent by the

aforementioned Police men by pushing the 1st Respondent into a gutter.

The deceased person, (aged 40 years) was the husband and father of the 1st and 2nd Respondents respectively. The 3rd Respondent is the elder brother of the deceased.
Sometime on the 13th of May, 2016, the deceased and the 4th Respondent were said to have a business feud and consequent upon that the said 4th Respondent reported the deceased to the Police at Okpoko Police Station. Based on the said report, the 4th, 5th and 6th Respondents in company of one unknown Police Officer proceeded to effect the arrest of the deceased.

On the said 13th of May, 2016, the 4th Respondent identified the deceased to the 5th and 6th Respondents. The deceased sought to know why he would be arrested at about 10.30 p.m. The 4th, 5th and 6th Respondents commenced the process of arresting the deceased forcefully and as a result beat him to a state of unconsciousness.

The 1st Respondent intervened and pleaded that the deceased be spared the inhuman treatment, but she was thrown into a gutter by the said Respondents while the deceased was bundled into a vehicle almost dead and driven to the Police Station.

The deceased died in Police Custody that same night as a result of the Police brutality and very serious injuries he sustained. The following day the 14th of May, 2016, the death of the deceased was communicated to his wife the 1st Respondent by the Divisional Police Officer (DPO) Okpoko Police Station. The DPO confirmed that the deceased died in their custody on the 13th of May, 2016 and has since been deposited at the Bex Hospital Mortuary, Onitsha.
It is on record that only the 2nd Appellant entered appearance to the Suit and filed a counter affidavit (see pages 130 – 146 of the Record).

In a considered judgment, the learned trial Judge agreed that the deceased died as a result of Police brutality following the beating and inhuman treatment meted out on him in the course of his arrest. He agreed that the 1st and 2nd Respondents are entitled to monetary compensation for the death of their bread winner, husband and father. He proceeded to award a total sum of Two Hundred and Twenty Five Million (N225,000,000.00) jointly and severally against the Appellants and the 4th, 5th& 6th Respondents.

This appeal is predicated on the said judgment.

Learned Counsel for the Appellants D. O. Abuo Esq., distilled two issues for determination as follows:
a. “Whether the learned Honourable trial Judge was right in assuming jurisdiction and granting the reliefs claimed in the light of the failure of the 1st – 3rd Respondents to prove the death of the actual deceased person.
b. Whether the Appellants can be held vicariously liable for the criminal conduct of the 4th to 6th Respondents in view of Sections 303 and 304 of the Criminal Code Act, Cap C. 38 Laws of the Federation of Nigeria, 2004, when they were not shown to have ordered the Criminal acts of the 4th – 6th Respondents to be punished with award of damages.”

Learned Counsel for the 1st, 2nd and 3rd Respondents also distilled two issues for determination thus:
i. “Whether there was a dispute as to the identity of the deceased person which the lower Court failed to resolve.”
ii. Whether the lower Court was right when it found the Appellants vicariously liable for the unlawful killing of the deceased by the 5th and 6th Respondents in the course of their

official duty of effecting the deceased’s arrest.”

Learned Counsel for the 1st, 2nd and 3rd Respondents raised a Preliminary Objection on the ground that this appeal is incompetent because the bundle of documents referred to as Record of Appeal was not certified by the Registrar of the lower Court and therefore does not qualify as Record of appeal.

Even though there was no response by counsel for the Appellants, a look at the Record of Appeal shows that there is substantial compliance because the said Record of Appeal was certified by the Deputy Chief Registrar. The Preliminary Objection is accordingly overruled.

Learned Counsel for the Appellants in his argument on the issues he raised, contented in summary, that the deceased was described as Nonso Uchenwoke at page 249 while the reliefs referred to the deceased as Chukwunonso Uchenwoke. He then asked whether the deceased was Nonso Uchenwoke or Chukwunonso Uchenwoke.

Counsel also argued that it was erroneous for the learned trial Judge to have held the Appellants vicariously liable for the killing of the deceased by the 4th – 6th Respondent when there was nothing to show

that the Appellants instructed the said 4th – 6th Respondents to effect the arrest by killing the deceased. That the 1st – 3rd Respondents failed to show the liability of the Appellants in both the death of the deceased and the infringement of the rights of the 1st Respondent.

Reacting to the foregoing, learned counsel for the 1st – 3rd Respondents contended, in Summary, that there was no dispute as to the identity of the deceased which the lower Court failed to resolve. That the identity of the deceased that was brutally killed by the 4th – 6th Respondents was never in issue.

Counsel argued that the lower Court was right to have found the Appellants vicariously liable for the unlawful killing of the deceased by the said Respondents in the course of their official duty of effecting the arrest of the deceased. This fact, he posited was corroborated by the 2nd Appellant in his counter affidavit.

He submitted that the officers who brutally killed the deceased had the authority of the Appellants to effect the arrest of the deceased. The death of the deceased which arose from the arrest was an unauthorized way of effecting the

arrest and therefore the Appellants are vicariously liable for the death of the deceased.

In dealing with this appeal, I shall make use of the two issues formulated by Counsel for the Appellants which are similar to those formulated by Counsel for the 1st – 3rd Respondents.
Basically, the burning issue for determination in this appeal is whether on the facts and circumstances of this case, the 1st, 2nd and 3rd Respondents have established their case against the Appellants and the 4th – 6th Respondents.

Section 33(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) guarantees every person his right not to be deprived of his life except under the circumstances set out therein. The said Section 33 is one of the Sections in Chapter 4 of the Constitution mentioned in Section 46(1) of the Constitution and Order II Rule 1 of the Fundamental Rights Enforcement Procedure Rules.
I shall come back to the provisions of the said Section 33(1) later in this judgment.

Counsel for the Appellants made heavy weather about the identity of the deceased. Let me lay to rest this issue before going into other relevant

questions in this appeal. Even though the issue of the identity of the deceased was neither canvassed in the judgment of the lower Court nor did Counsel for the Appellants raise it in his Notice of Appeal, since the said Counsel for the Appellants wasted pages of papers arguing this very irrelevant issue, let me humour and dignify him by touching on it by way of surplusage, even though the identity of the deceased was never in contention. In Igbo language of which I have taken judicial notice of, the name “Nonso” is simply an abbreviation of “Chukwunonso”.
Therefore Mr. Nonso Uchenwoke is the same person as Mr. Chukwunonso Uchenwoke. Both names could be used interchangeably and I so hold. I therefore see no reason or justification for Counsel for the Appellants to raise such a trivial and inconsequential issue in an appeal of this nature concerning the loss of a human being under very inhuman, brutal and savagely violent circumstances. That issue is hereby resolved against the Appellants and thrown into the trash where it rightly belongs.

Counsel for the Appellants also contended that if an agent as in this case acted

outside the power or authority given to him by his Principal, that he will be personally liable for his actions. That since the 4th – 6th Respondents acted outside the power and authority of Police duty, that they will be held liable personally for their illegal actions.
It is on record that the 5th and 6th Respondents have been dismissed from the Nigeria Police and Charged with Conspiracy and Murder. It is also worthy of note that 5th and 6th Respondents were Police Officers of Okpoko Division. The 4th Respondent was also a Police Officer of the same Okpoko Police Division Onitsha and that she lodged a complaint of assault and malicious damage against the deceased at her Police Station in her personal capacity. It is also very instructive that an entry was made of the report and the complaint was referred to the Divisional Crime Branch (DCB) for investigation. The 5th and 6th Respondents were therefore detailed to go and effect the arrest of the deceased. In the course of arresting the deceased they brutalized him and beat him until he became unconscious, bundled his unconscious body into their vehicle and he died that same night in Police Custody.

There is therefore nothing on record to show that the 5th and 6th Respondents were on a frolic of their own to justify exonerating the Appellants from being vicariously liable for the death of the deceased. The 5th and 6th Respondents are Police officers of the Nigeria Police and under the command of the Inspector General of Police who is the Head of the Nigeria Police.

The crucial question is whether the killing of the deceased by the 4th – 6th Respondents constitutes a violation of his right to life guaranteed under the 1999 Constitution of the Federal Republic of Nigeria and other relevant statutes to justify the reliefs by the 1st – 3rd Respondents?
The said Section 33(2) (a) – (c) of the aforementioned Constitution listed the circumstances under which a person may be deprived of his right to life. The circumstances under which the 4th – 6th Respondents brutally killed the deceased by beating him until he became unconscious is definitely not one of such circumstances. SeeEZEADUKWA V. MADUKA (1997) LPELR 8062, ZAMAN V. STATE (2015) LPELR 24595.
I also agree that the pushing of the 1st Respondent into

a gutter and spraying of tear gas on her face by the said 4th – 6th Respondents was cruel, degrading and inhuman and therefore a violation of her Fundamental right.
The 2nd Respondent is the only child of the deceased and at the time the deceased was brutally killed, she was just about three years of age. She is entitled to her education and well-being.
It is admitted by both parties that the deceased died as a result of the merciless beating he received from the 4th – 6th Respondents. The deceased was deprived of his life in an unconstitutional manner and there is no doubt that his right to life was breached. The fundamental right of the deceased Mr. Nonso Uchenwoke was grossly violated by the 4th – 6th Respondents.
It is trite that where there is a right as in this case, the law prescribes a remedy “Ubi jus, ubi remedium”.
In DILLY V. I.G.P. (2016) LPELR – 41452, this Court listed the factors to be considered in the award of damages in fundamental right cases. They include but not limited to:
1. The frequency of the type of violation in recent times.
2. The continual depreciation of the Naira.

The motivation for the violation.
4. The status of the applicant and
5. The undeserved embarrassment meted out to the applicant including pecuniary losses.

The deceased was a young man and bread winner of his family. The 1st and 2nd Respondents were dependent on him. The 2nd Respondent was very young (aged 3) when she lost her father. The 1st Respondent was the young wife of the deceased. There is no doubt that they are entitled to monetary compensation by way of damages, even though no amount of monetary compensation will bring back their bread winner who was brutally killed by the 4th, 5th and 6th Respondents. The 3rd Respondent Mr. Callistus Uchenwoke is the brother of the deceased, much as he lost his brother and there is no doubt that he suffered the pain of losing a brother particularly the brutal manner in which the deceased was killed, I will not extend the award of damages to him.

In the premise, the two issues are resolved against the Appellants and the 4th, 5th and 6th Respondents and in favour of the 1st and 2nd Respondents. This appeal is hereby dismissed. The judgment of the Court below in Suit

NO FHC/AWK/CS/137/2016 delivered on the 9th day of November, 2017 by I. N. Oweibo is hereby affirmed. I shall however make some modifications on the award of damages. Accordingly, I award damages in the sum of N150,000,000.00 (One Hundred and Fifty Million Naira) against the Appellants and the 4th, 5th and 6th Respondents jointly and severally in favour of the 1st and 2nd Respondents Mrs. Chidinma Uchenwoke and Miss Chikaanyima Uchenwoke.
I award Fifty Thousand Naira (N50,000.00) as costs.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother CHIOMA NWOSU-IHEME (Ph.D) J.C.A.
I agree with her reasoning and conclusions.
I dismiss the appeal. The judgment of the Court below delivered on the 9th day of November, 2017 is hereby affirmed.
I abide by the consequential order made as to costs.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

E. Nwezi For Appellant(s)

J. Okeke for the 1st – 3rd Respondents For Respondent(s)