THE NIGERIA POLICE FORCE & ORS v. MRS. SHERIFAT AZEEZ OMOTOSHO & ORS
(2018)LCN/12102(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of October, 2018
CA/L/1078/2016
RATIO
DAMAGES: AN AWARD OF DAMAGES
“An award of damages is within the discretionary powers of the Court: BRITISH AIRWAYS vs. ATOYEBI (2014) LPELR (23120) 1 at 41 and G. K. F. INVESTMENT (NIG) LTD vs. NITEL PLC (2009) LPELR (1294) 1 at 30-31. The basic object of the award of damages is to compensate the claimant for the damages suffered as a result of the action of the defendant and the trial Court possesses the discretion to determine the quantum of damages it would award. In determining the quantum of damages to award for infringement of fundamental rights, the Courts consider the following factors, amongst others:
a) the frequency of the type of violation recent times
b) the continually depreciating value of the Naira
c) the motivation for the violation
d) the status of the applicant.
e) the undeserved embarrassment meted out to the applicant including pecuniary losses; and
f) the conduct of the parties generally particularly the Respondent.
See; ATTAH vs. IGP (2015) LPELR (24656) 1 at 46.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
DEFENCE: THE DEFENCE OF SELF DEFENCE
“The above is suggestive not of accident, but of self-defence; which is further buttressed by the submission of the Appellants counsel on the application of the provisions of Section 33 (2) (a) of the Constitution. The question then is what is the evidence adduced by the Appellants, was it accident or self-defence? The defence of self-defence and accident are mutually exclusive, such that they are contradictory or inconsistent. This is so because for an act to qualify as an accident, it has to be the result of an unwilled act, an event that occurs without the fault of the person alleged to have caused it. On the other hand, self-defence means that the person willingly did the act while in the process of defending himself: SULE vs. THE STATE (2009) LPELR (3125) 1 at 27.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JURISDICTION: ISSUES OF JURISDICTION
“Accordingly, since it involves an issue of jurisdiction, it can be raised for the first time on appeal, notwithstanding the fact that it was not raised at the lower Court. See FBN PLC vs. TSOKWA (2004) 5 NWLR (PT 866) 271 at 302 and ADETONA vs. I. G. ENTERPRISES LTD (2011) 7 NWLR (PT 1247) 535 at 561. Howbeit, raising the contention is one thing while the question of whether the contention is well founded in law is an entirely different kettle of fish. We will find out in a trice if the Appellants contention in this regard is sound law.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
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 Appellant(s)
AND
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 Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
PROLEGOMENON
This appeal is against the judgment of the Federal High Court, Lagos Division, Coram Judice: Tsoho, J. in SUIT NO. FHC/L/CS/1790/2013: MRS SHERIFAT AZEEZ OMOTOSHO & ORS vs. THE NIGERIA POLICE FORCE & ORS delivered on 24th June 2014. By an Originating Summons filed on 31st December 2013, the Respondents as Applicants before the lower Court, 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 to 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 (See page 2 of the Records)
The Respondents claimed the following principal and consequential reliefs:
PRINCIPAL RELIEFS:
1. A declaration that the killing/murder in cold blood of Azeez Omotosho by the respondents through the 4th respondent is unlawful and is 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. A declaration that 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 amount to torture, degrading and inhuman treatment of the 1st to the 4th applicants and an infringement of their fundamental human right of freedom from torture, degrading and inhuman treatment by the respondents which right is guaranteed by the 1999 Constitution and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990.
3. A declaration that 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 amount to disrespect to the dignity of the person of the applicants and to threat to the right to life 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.
4. A declaration that 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 amount to an infringement of their respective individual right to a family which right is guaranteed under the 1999 Constitution and under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990.? (See page 3 of the Records)
CONSEQUENTIAL RELIEFS:
1. An order of this honourable Court commanding the respondents jointly and severally to pay the applicants a compensation in the sum of N25, 000, 000,000.00 (Twenty Five Billion Naira) for the infringement of the Fundamental Human Right To Life of Azeez Omotosho which infringement occurred on the 2nd day of November 2013 when the 4th respondent unlawfully shot and killed Azeez Omotosho at Shogunle, Ikeja, Lagos State within the jurisdiction of this Court and which right is guaranteed under the 1999 Constitution and under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990.
2. An order of this honourable Court commanding the respondents to pay to each of the applicants the sum of N100,000,000.00 (One Hundred Million Naira) each for the torture, degrading and inhuman treatment committed by the respondents which right is guaranteed under the 1999 Constitution and under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990.
3. An order of this honourable Court commanding the respondents to pay to each of the applicants the sum of N100, 000, 000. 00 (One Hundred Million Naira) for the disrespect to the dignity of the person of the applicants and for the threat to the right to life 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.
4. An order commanding the respondents to pay to each of the applicants the sum of N100, 000, 000.00 (One Hundred Million Naira) each for the infringement of the right to a family of the applicants which right is guaranteed under 1999 Constitution and under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990. (See page 4 of the Records)
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 lower 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. The judgment of the lower Court is at pages 127-156 of Volume I of the Records, while the original Notice of Appeal filed by the Appellants is at pages 178-182 of Volume I of the Records. Pursuant to the leave of Court granted on 5th May 2017, the Appellants filed an Amended Notice of Appeal on 8th May 2017, on the basis of which the appeal was argued. Equally, the Court on the said 5th May 2017 granted the Respondent leave to file a Cross Appeal and the Notice of Cross Appeal filed on 15th March 2017 was deemed as properly filed.
The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The Respondents also filed a Notice of Preliminary Objection challenging the jurisdiction of the Court to hear the appeal. The briefs of argument on which the appeal was argued are:
1. Appellants Brief of Argument filed on 29th June 2017.
2. Respondents/Cross Appellants Brief of Argument filed on 8th August 2017.
3. Appellants Reply/Cross Respondents Brief of Argument filed on 11th September 2017.
4. Cross Appellants Reply Brief filed on 13th September 2017.
All the briefs of argument were deemed as properly filed on 24th September 2018.
At the hearing of the appeal, learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal. The logical starting point will be the Respondents? preliminary objection challenging the jurisdiction of the Court to hear the appeal.
THE PRELIMINARY OBJECTION
The preliminary objection which was filed on 8th August 2017 prays for the following orders:
a. An order setting aside the amendment of the original Notice of Appeal as null and void and of no effect and striking out the original notice of appeal.
b. An order striking out the amended Notice of Appeal as null and void and of no effect.
c. An order striking out all the grounds of appeal contained in the Appellants? amended Notice of Appeal for being incompetent.
d. An order striking out the Appellants’ Brief of argument dated and filed on the 29th June 2017 for being incompetent.
e. An order dismissing the appeal.
The grounds for the objection are as follows:
a. The original Notice of Appeal dated the 28th August 2014 and contained on page 178 to 182 vol. 1 of the Record is incurably bad for not containing any competent ground of appeal and was therefore not amendable and the Court of Appeal had no jurisdiction to amend it.
b. There is no competent Ground of Appeal in the amended Notice of Appeal and no competent Appellant Brief to sustain the Appeal.
c. Grounds of appeal numbers 1, 2, 3, 5, 7, 10, 11, 12, 13, 14, 15 and 16 of the amended notice of appeal are obiter / mere pronouncements of the honourable trial Court, are not based on the ratio decidendi of the judgment and or do not arise from the judgment appealed against.
d. One or more of the particulars of grounds of appeal numbers 1 to 16 are not related to their respective grounds of appeal.
e. The issues formulated and argued in the Appellants’ Brief of Argument are not based on any of the grounds of appeal in the amended Notice of Appeal and where they are related, the grounds to which they are related are incompetent grounds of appeal.
f. The issues formulated and argued in the Appellants’ Brief of argument are related to incompetent and competent grounds of appeal argued together.
g. Based on paragraph 3.68 of the Appellants’ brief of argument, the brief is effectively 52 pages in violation of the compulsory provisions of Order 19 Rule 3 (6) (a), (c) of the Court of Appeal Rules 2016 and was thus not qualified for acceptance for filing.
h. Based on paragraph 3.68 of the Appellants’ brief of argument, issue four of the appellants is based on and argued together with all the grounds of appeal in the amended notice of appeal all or some of which are incompetent and the Court of Appeal cannot separate argument from the competent and incompetent grounds and all must be rejected for incompetency.
The Respondents argued the preliminary objection on pages 3-13 of the Respondents/Cross Appellants Brief of Argument. The Respondents crafted a sole issue as arising for determination on their preliminary objection, id est, ‘whether the objection of the Respondents to the hearing of the appeal is well taken.’
The Respondents submit that for a notice of appeal to be competent, it must contain at least one competent ground of appeal which challenges the ratio or reason for the decision complained of. The cases of DANIEL vs. INEC (2015) 9 NWLR (PT 1463) 113 at 144 and OLEKSANDR vs. LONESTAR DRILLING COMPANY LTD (2015) ALL FWLR (PT 793) 1824 at 1837 among others were referred to.
The Respondents contend that all the grounds in the original notice of appeal are bad and liable to be struck out as unamendable. The Respondents proceeded to highlight the defects in the grounds of appeal pointing out that grounds 3 and 4 do not arise from the judgment of the lower Court as the lower Court duly considered the letter for adjournment written by the Appellants counsel as well as the motion for extension of time to file processes before proceeding to deliver its judgment. The Respondents maintain that a defective notice of appeal is incurably bad and cannot be amended and that any purported amendment is null and void. The case of NWAIGWE vs. OKERE (2008) ALL FWLR (PT 431) 843 at 864 was cited in support. It was consequently opined that notwithstanding the fact that there was no opposition to the application to amend the original notice of appeal, the amendment to the notice of appeal, pursuant to the order of Court, is null and void and of no effect as the Court did not have the jurisdiction to make the order to amend an incompetent Notice of Appeal.
It was stated that the order having been made without jurisdiction, the Court can reverse itself and set the order aside. The case of ABIOLA & SONS BOTTLING CO. NIG LTD vs. FCMB LTD (2013) 4 MJSC 122 at 153 was relied upon.
The Respondents further asserted that even if the order to amend was valid, the Amended Notice of Appeal was incompetent because all the grounds of appeal therein are bad. The Respondents highlighted the defects in each of the grounds in the Amended Notice of Appeal submitting that the grounds either do not attack the ratio of the pronouncement of the lower Court or do not challenge the reason given by the lower Court in its judgment. Specifically, it was stated that grounds 3 and 4 of the Amended Notice of Appeal do not arise from the decision of the lower Court since the lower Court had considered the letter for adjournment and pending motion before it delivered its judgment. It was further argued that the lack of juristic personality of the 2nd – 4th Respondents was not in issue at the trial and that the ground challenging the amount awarded as damages does not amount to an appeal against the fact that the 2nd – 4th Respondents were minors who sued in their names.
The Respondents challenging the Appellants Brief posit that the issues for determination do not arise from competent grounds of appeal and that any issue distilled from both a competent and incompetent ground of appeal is incompetent since the Court is not to sieve the argument arising from the competent ground from the argument emanating from the incompetent ground. The cases of AKINDIPE vs. THE STATE (2012) ALL FWLR (PT 638) 805 at 816, OMOTOSHO vs. OJO (2008) ALL FWLR (PT 408) 389 at 399, BHOJSONS PLC vs. DANIEL-KALIO (2006) 5 MJSC 136 at 137 and NWOKIDU vs. OKANU (2010) 1 MJSC 24 at 42 were called in aid.
The Respondents conclusively submit that the Appellants Brief was incompetent for violating Order 19 Rules 3 (6) (a) and (c) of the Court of Appeal Rules, 2016 since the Appellants by adopting the arguments on their issues 1 and 3 under their issue number 4, had effectively increased the number of pages in their brief to 52 pages which is over and above the allowed 35 pages.
The Appellants reply to the preliminary objection is on pages 2-13 of the Appellants Reply/Cross Respondents Brief. It was contended that a single competent ground of appeal can sustain the original notice of appeal. The cases of NWOSU vs. EKEIGWE (2015) NWLR (PT 1472) 80 at 107-108 and IKECHUKWU vs. NWOYE (2014) 4 NWLR (PT 1397) 227 at 244 were relied upon. It was maintained that the grounds of appeal were competent. The Appellants however conceded in paragraph 1.10 of the Reply Brief that ground 4 of the original Notice of Appeal did not challenge the determination and refusal of the pending application.
With regard to the Amended Notice of Appeal, it is the contention of the Appellants that it is competent. It was opined that a ground of appeal is a challenge to the decision of the Court and that the grounds of appeal were therefore competent having attacked the decision of the lower Court. The Appellants proceeded to analyse the grounds of appeal in the Amended Notice of Appeal, but instructively, the Appellants were silent on ground 4 of the Amended Notice of Appeal which is in pari materia with ground 4 of the original notice of appeal.
The Appellants submit that the competence of a party in a suit goes to assumption of jurisdiction by the Court over that party and that the issue of jurisdiction can be raised at any time. It was stated that the failure of the 2nd-4th Respondents to sue by their Next of Kin as required by law was the failure of a condition precedent to exercise of jurisdiction which robbed the lower Court of jurisdiction to entertain the suit as it relates to the 2nd-4th Respondents. The cases of MADUKOLU vs. NKEMDILIM (1962) 2 NSCC 374 at 379, ACB vs. HASTON (NIG) LTD (1997) LPELR 5218 (CA) or (1997) 8 NWLR (PT 515) 110 among other cases were relied upon.
On the challenge to the Appellants Brief, it is the contention of the Appellants that all the issues canvassed were competent and arose from competent or combination of competent grounds of appeal which arise from the judgment of the lower Court. The issues for determination were analysed and the Appellants submission in respect of their issue number two which is said to have been distilled from grounds 3 and 4 of the Amended Notice of Appeal is a terse five word sentence that ‘Issue 2 is, equally competent.’ The Respondents contention that the Appellants Brief exceeded 35 pages was stated to be ludicrous and that the Appellants Brief was only of 29 pages.
RESOLUTION OF THE PRELIMINARY OBJECTION
The thrust of the Respondents’ preliminary objection to the jurisdiction of the Court to hear this appeal is firstly a challenge on the original grounds of appeal; secondly a challenge on the Amended Notice of Appeal; thirdly a challenge on the issues distilled for determination in the Appellants Brief and fourthly, a challenge on the Appellants’ Brief for having exceeded the 35 pages allowed by Order 19 Rule 3 (6) (a) and (c) of the Court of Appeal Rules, 2016.
The Respondents argument is that the grounds of appeal in the original notice of appeal were incompetent since, inter alia, they did not attack the reasons given by the lower Court in its judgment and that being incurably defective, the said original notice of appeal cannot be amended. The law is that a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. Put differently, it is the reason why the decision is considered wrong by the aggrieved party: IDIKA vs. ERISI (1988) 2 NWLR (PT 78) 503 at 578 and AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464. The essence of grounds of appeal is to give sufficient notice to the adverse party of the nature of the appellant?s complaint, which such adverse party will be confronted with in Court. The Respondents adopted and responded to the issues distilled and argued by the Appellants, showing that the complaints in the grounds of appeal are clear and understood. See ACHONU vs. OKUWOBI (2017) LPELR (42102) 1 at 17 -18. In ADEROUNMU vs. OLOWU (2000) 4 NWLR (PT 652) 253 at 272, Ayoola, JSC stated:
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the Court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this Court and in the Court of Appeal, that the Appellant shall file a notice of appeal which set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice, an information to the other side of the nature of the complaint of the Appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding, that it did not conform to a particular form.”
The learned counsel on both sides have correctly argued that a sole competent ground of appeal is sufficient to sustain an appeal: DANIEL vs. INEC (supra), OLEKSANDR vs. LONESTAR DRILLING COMPANY LTD (supra), NWOSU vs. EKEIGWE (supra), IKECHUKWU vs. NWOYE (supra) and NWAIGWE vs. OKERE (2009) 13 NWLR (PT 1105) 445 at 474. I have insightfully considered the grounds of appeal in the original notice of appeal. In paragraph 1. 10 on page 4 of the Appellants’ Reply Brief, the Appellant conceded that ground 4 of the original notice of appeal is not competent as it did not challenge the decision of the lower Court refusing the pending application.
The said ground 4 of the original notice of appeal is in pari materia with ground 4 of the Amended Notice of Appeal. Grounds of appeal are not formulated in nubibus, they must arise from the decision appealed against; where a ground of appeal does not find its roots in the decision appealed against, such a ground of appeal and the issue formulated therefrom are incompetent. See BAKULE vs. TENEREWA (NIG) LTD (1995) 2 NWLR (PT 308) 724 at 739-740, PETER vs. UZOR (2006) 8 NWLR (PT 981) 66 and OGUNYADE vs. OSHUNKEYE (2007) 7 SC (PT II) 60 at 71-72. The Appellants ground four of both the original and Amended Notice of Appeal are accordingly struck out for being incompetent.
Ground 6 of the original notice of appeal is the omnibus ground of appeal. It reads:
‘The judgement is against the weight of evidence before the lower Court.’
The omnibus ground of appeal allows a complaint on evaluation of evidence and encompasses a complaint of improper evaluation of evidence. It implies that the judgment of the lower Court cannot be supported by the weight of evidence adduced by the successful party which the trial judge either wrongly accepted or that the inference or conclusion reached by trial judge based on the accepted evidence cannot be justified. It also implies that there is no evidence which if accepted would support the findings of the trial judge. See AJIBONA vs. KOLAWOLE (1996) LPELR (299) 1 at 17, AKINLAGUN vs. OSHOBOJA (2006) LPELR (348) 1 at 19-20 and ADELUSOLA vs. AKINDE (2004) LPELR (120) 1 at 12. The omnibus ground of appeal has been held to be a valid ground of appeal and indeed it is expressly recognised as such by Order 7 Rule 3 of the Court of Appeal Rules 2016: AUDU vs. NDUBISI (1996) LPELR (13718) 1 at 15 and OLOWU vs. AMAYO (2011) LPELR (4755) 1 at 26-27. The omnibus ground of appeal, ground 6 of the original notice of appeal, being a competent ground of appeal sustains the original notice of appeal and the order of the Court granting an amendment of the original notice of appeal is not null and void as contended by the Respondents.
I have painstakingly considered the grounds of appeal in the Amended Notice of Appeal, and apart from ground 4 which I have already struck out for being incompetent, I am satisfied that the other grounds of appeal arise from the decision of the lower Court. it is pertinent to state that an appellate Court is concerned with whether the correct decision was arrived at and not whether the reasons are correct: NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 187 at 220, DAIRO vs. UNION BANK (2007) 16 NWLR (PT 1059) 99 at 161 and POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 36.
It may well be that the Appellants did not challenge the specific finding and reasoning which led to the decision of the lower Court; but that in itself will not make the ground of appeal defective. It only puts the ground of appeal on quicksand, since it is trite law that a finding of a Court not challenged remains valid and subsisting: ONAFOWOKAN vs. WEMA BANK (2011) LPELR (2665) 1 at 41, OGUNBIYI vs. ISHOLA (1996) 5 SCNJ 145 at 154 and ONWUKA vs. EDIALA (1989) 11 NSCC 65 at 84. I therefore make bold to hold that apart from ground four which I have already struck out, the other grounds of appeal are competent.
The law is that issues for determination in an appeal must find its roots in the grounds of appeal and that where an issue for determination is distilled from both a competent and incompetent ground of appeal, then the issue is incompetent as the Court cannot sift the argument as it relates to the competent ground from the argument in respect of the incompetent ground. The Appellants issue number two in the issues for determination is said to have been distilled from grounds 3 and 4. I have already held ground 4 to be incompetent; the concomitance is that the said issue number two is incompetent since the argument thereunder as it relates to the competent ground 3 cannot be separated from the argument predicated on the incompetent ground 4. BHOJSONS PLC vs. DANIEL KALIO (supra), OMOTOSHO vs. OJO (supra) and NWOKIDU vs. OKANU (supra). In the circumstances, the Appellants issue number two is hereby struck out and it will not play any part in the consideration and resolution of the substantive appeal.
With regards to the Appellants issue number one, three and four, I am satisfied that they arise from competent grounds, which grounds I have already held arise from the decision of the lower Court. Accordingly, the said issues are competent.
It remains to consider the Respondents contention that the Appellants Brief is incompetent for exceeding the permissible 35 pages since the implication of the Appellants adopting their argument under their issues one, two, three as part of the submissions in issue number four extends the pages of the brief to 52 pages. With due deference to learned counsel for the Appellants, this contention is chop sense and logic. The Appellants’ brief is of 29 pages, to argue that reliance on argument that is already part of the brief amounts to additional pages being added to the brief is with respect hokum. The Appellants’ Brief is therefore competent. In any event, Order 19 Rule 3 (6) (c) of the Court of Appeal Rules, 2016 has stipulated the fate that is to befall a brief that exceeds the page limit of 35 pages, and it is that the brief shall not be accepted by the Registry for filing, not that the Court should discountenance with the brief and hold the same incompetent. The Appellants brief has already been accepted and filed at the Registry of this Court.
Conclusively, I uphold the preliminary objection as it relates to ground 4 of the Notice of Appeal and the issue distilled therefrom. To that extent the preliminary objection therefore succeeds in part. We now segue to consider the merits of the main appeal, devoid of the said issue number two, and thereafter, the cross appeal.
THE MAIN APPEAL
Flowing from the manner of resolution of the preliminary objection and the striking out of the Appellants’ issue number two, the remaining issues for determination as distilled by the Appellants and adopted by the Respondents are 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. (Ground 1, 2, 7, 10 and 12 of the Notice of Appeal).
2. Whether the Appellants were liable for the death of the deceased (Grounds 13, 14 and 15 of the Notice of Appeal).
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. (Ground 5, 6 and 16 of the Notice of Appeal).
The above issues adequately capture the Appellants complaint against the decision of the lower Court as represented in the grounds of appeal. I would therefore consider the submissions of learned counsel and resolve the main appeal on the basis of the said issues with issue number three renumbered as two and issue number four renumbered as three.
ISSUE NUMBER ONE
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.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants submit that the lower Court was not competent to entertain the matter as the action was not initiated by due process of law and the lower Court therefore did not have the requisite jurisdiction. The case of MADUKOLU vs. NKEMDILIM (1962) 2 NSCC 374 at 37 was referred to. The Appellants maintain that the facts of the case were disputed and that originating summons was consequently not the correct process to use to initiate the action as a result of which the vires of jurisdiction of the lower Court was removed. The cases ofOLLEY vs. TUNJI (2013) 10 NWLR (PT 1362) 275 at 321-322, and OPIA vs. INEC (2014) 7 NWLR (Pt 1407) 431 at 466 were relied upon. It was stated that in the light of the substantial dispute on the facts, the lower Court should have ordered pleadings so that the evidence furnished could be subjected to cross examination. The cases ofNATIONAL BANK OF NIGERIA vs. ALAKIJA (1978) 9-10 & 11-12 SC 42, EMEZI vs. OSUAGWU (2005) 12 NWLR (PT 939) 340 and DAPIALONG vs. LALONG (2007) 2 NWLR (Pt 1026) 199 at 212-213 were cited in support.
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. Order 9 Rule 10 of the Federal High Court (Civil Procedure) Rules, 2009 and the cases ofSOFOLAHAN vs. FOWLER (2002) 14 NWLR (PT 788) 644 at 685 and NWAGU vs. OKOLO (2012) LPELR 9460 (CA) were called in aid. It was asserted that the action by the 2nd-4th Respondents was incompetent and that they cannot take benefit or liability from the action since they do not have the capacity to sue. The case ofELIAS vs. ELIAS (2001) 9 NWLR (PT 718) 429 at 442-443 was referred to.
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
Relying on Order II Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules (FREPR), the Respondents submit 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. The case of BOB vs. AKPAN (2010) ALL FWLR (PT 501) 898 at 947 was relied upon.
It was stated that the reliefs claimed were fundamental rights reliefs and that the lower Court had the jurisdiction to entertain them. The case of WAEC vs. ADEYANJU (2008) 6 MJSC 1 at 33 was cited in support. The Respondents maintain that the lower Court rightly held that the only conflict was within the affidavit of the Appellants itself. It was contended that the Appellants never raised the issue of the 2nd-4th Respondents being minors at the lower Court; and that not having arisen from the decision of the lower Court, the Appellants could not raise it on appeal without leave of Court. The case of OLUFEAGBA vs. ABDUR-RAHEEM (2009) 12 MJSC 164 at 194-195 was called in aid.
It was opined that the issue of the 2nd-4th Respondents being minors who should sue by their next friend or guardian ad litem is an irregularity which the Appellants waived by not raising it at the lower Court and therefore they could no longer raise it on appeal. The cases ofAJAYI vs. A-G OGUN STATE (2008) ALL FWLR (PT 445) 1724 at 1751, SAPO vs. SUNMONU (2010) 5-7 MJSC (PT 1) 35 at 58, BLESSING vs. FRN (2015) ALL FWLR (PT 805) 1 at 37 and UDOH vs. REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS AND STAR (2013) ALL FWLR (PT 692) 1771 at 1779 were referred to.
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. The cases of SAPO vs. SUNMONU (supra) at 57 and BOB vs. AKPAN (supra) at 963 were relied upon. It was maintained that by Section 46 (1) of the 1999 Constitution, every person, even a minor, has the locus standi to sue to enforce fundamental rights. Order II Rule 1 FREPR and Section 3 of the Preamble to the FREPR were referred to and it was posited that the Appellants contention on the legal capacity of the 2nd-4th Respondents was a technicality which should not be allowed to defeat the enforcement of fundamental rights. The case of OLATUNJI vs. HAMMED (2010) ALL FWLR (PT 540) 1365 at 1375 was cited in support. It was conclusively submitted that the 2nd-4th Respondents not having sued by their next of kin is a non-compliance which is saved by Order IX Rule 1 of the FREPR.
APPELLANTS REPLY ON LAW
In their Reply Brief, the Appellants submit that under Order II Rule 1 FREPR, the originating process accepted by the Court is to be determined by the nature of the matter and that an originating summons is not a suitable mode of commencing contentious matters. Order 3 Rules 6 and 7 of the Federal High Court (Civil Procedure) Rules and the case of OSSAI vs. WAKWAH (2006) 4 NWLR (PT 969) 208 at 229 were called in aid. It was posited that the mode of commencement of an action is one of jurisdiction which does not require leave to raise for the first time on appeal. The cases of OPOBIYI vs. MUNIRU (2011) 18 NWLR (PT 1278) 387 at 403, M.P.P.P. vs. INEC (N0.2) (2015) 18 NWLR (PT 141) 255 at 269 and SANNI vs. AYINDE (2014) LPELR 22546 (CA) were referred to.
The Appellants concede that minors can sue to enforce fundamental rights but state that their contention is on how minors can sue and that the provisions on how minors can sue must be followed. The case of AYIDA vs. TOWN PLANNING AUTHORITY (2013) 10 NWLR (PT 1362) 226 at 266 was relied upon. It was finally stated that their challenge is only in respect of the legal capacity of the 2nd-4th Respondents and not the entire action.
RESOLUTION
In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) 1 ALL NLR 587 at 595 the Apex Court stated as follows:
A Court is competent to adjudicate when :
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.
The law would appear to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intertwined. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. See IBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED & ORS (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. The authorities seem settled that where a Court is not competent, it cannot exercise jurisdiction.
The contention of the Appellants is that the action which was commenced by Originating Summons, in circumstances where the facts are disputed and contested, was not initiated by due process of law and that it was a feature that prevented the Court from exercising jurisdiction: MADUKOLU vs. NKEMDILIM (supra).
Accordingly, since it involves an issue of jurisdiction, it can be raised for the first time on appeal, notwithstanding the fact that it was not raised at the lower Court. See FBN PLC vs. TSOKWA (2004) 5 NWLR (PT 866) 271 at 302 and ADETONA vs. I. G. ENTERPRISES LTD (2011) 7 NWLR (PT 1247) 535 at 561. Howbeit, raising the contention is one thing while the question of whether the contention is well founded in law is an entirely different kettle of fish. We will find out in a trice if the Appellants contention in this regard is sound law.
Now, Order II Rule 2 of the FREPR on the mode of commencement of an application for the enforcement of fundamental right provides as follows:
2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of the Rules, lie without leave of Court?
So by the above provision an application can be commenced by any originating process accepted by the Court, in this instance the Federal High Court. Order 3 Rule 1 (1) of the Federal High Court (Civil Procedure) Rules, 2009 provides as follows:
1 (1) Subject to the provisions of any enactment, civil proceedings may be begun by writ, originating summons, originating motion or petition or by any other method required by other rules of Court governing a particular subject matter.
The instant action which was commenced by originating summons was commenced by one of the originating processes accepted by the Court. However, the contention of the Appellants, as I understand it, is that originating summons was not suited for the hearing of the action because the facts were contested and disputed. Doubtless, it is settled law that originating summons is not to be resorted to in hostile proceedings but is only suited for actions where the facts are not contested. See NATIONAL BANK OF NIGERIA vs. ALAKIJA (1978) 9-10 SC 39 at 71, MICHAEL vs. MIMA PROJECTS VENTURES LTD (2002) 24 WRN 71 at 81, OSSAI vs. WAKWAH (supra) and DAPIALONG vs. DARIYE (2007) LPELR (928) 1 at 46.
What then is the effect where an action in which the facts are disputed is commenced by originating summons? As rightly submitted by the Appellants counsel, in such an instance the trial Court is to convert the originating summons to a writ of summons and order pleadings to be filed: NATIONAL BANK vs. ALAKIJA (supra) and EMEZI vs. OSUAGWU (supra). So the effect would not be to defeat the action. However, the question of whether the facts are contested requiring pleadings to be ordered is entirely within the discretion of the trial Court. Order 3 Rules 7 and 8 of the Federal High Court (Civil Procedure) Rules, 2009 stipulate as follows:
7. Any person claiming any legal or equitable right in a case where the determination of whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration of the right claimed.
8. A Judge shall not be bound to determine any such question of construction if in the Judge’s opinion it ought not to be determined on originating summons but may make such orders as the Judge deems fit.
The Appellants argue that in the face of the controversy in the affidavits filed by the parties, the lower Court ought to have ordered pleadings so that the evidence adduced would be subjected to a process of refinement in the furnace of cross-examination. It is pertinent to state 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. EKEAGBARA (2016) LPELR (40847) 1 at 39-40 and BOB vs. AKPAN (supra). 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.
Where the facts in an affidavit are self-contradictory, it cannot be proof of any facts on the basis of which the facts can be said to be contested or disputed. See ROYAL EXCHANGE ASSURANCE (NIG) LTD vs. ASWANI ILE IND. LTD (1992) LPELR (2960) 1 at 17-18, ISRAEL vs. ORURUO (2017) LPELR (42484) 1 at 43 and EBURUEKWE vs. IBEABUCHI (2018) LPELR (44687) 1 at 35. The lower Court in exercise of its discretion, held that the counter affidavit filed by the Appellants was self-contradictory and that there was no need to call oral evidence. Hear the lower Court on pages 151-152 of the Records:
“It has to be realised that the exhibits attached to the counter affidavit are as much part of that affidavit and must be considered as such. See UNIVERSITY OF ILORIN V. OYALANA [2001] FWLR [Pt.83] 2193. The law is trite that where a party has filed affidavit that is self contradictory, it is taken that the affidavit has destroyed or weakened the party’s case and there is no need calling oral evidence. See ARJAY LTD V. A.M.S LTD [2003] FWLR [Pt 156] 943 S.C. Besides, a party who has ‘self-created contradictions’ in this affidavit has the burden to explain the contradictions, else the issues in contention will be ruled against him. See MOMAH V. VAB PETROLEUM INC. [2000] 2 & 3 SCNJ 200 at 222. In the instant case, the Respondents’ affidavit evidence is contradictory on material points and therefore leaves no basis for calling oral evidence as they contended.”
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. In any event, I iterate that even if the lower Court was wrong, which I have held that it was not, the commencement of the action by originating summons cannot defeat the action.
The Appellants have forcefully argued that the 2nd-4th Respondents are minors and could not sue or be sued eo nomine. The Respondents maintain that by Section 46 (1) of the 1999 Constitution, any person, including a minor, can enforce fundamental rights. The thrust of the Appellants argument is not on whether a minor can enforce fundamental rights, but how the action by a minor is to be constituted. It has not been confuted that the 2nd-4th Respondents are minors and that they have brought the action eo nomine. The law seems settled beyond peradventure that only juristic persons in whom rights and obligations can be vested are capable of being proper parties to law suits before Courts of law.
It is hornbook law that a Court cannot engage in adjudication when the proper parties are not before it. There must be proper parties either as plaintiff or defendant before any Court can exercise its jurisdiction. The question of whether the 2nd-4th Respondents are proper parties is therefore an issue of jurisdiction which can be raised for the first time on appeal. See PETROJESSICA ENTERPRISES LTD vs. LEVENTIS TECHNICAL CO. LTD (1992) LPELR (2915) 1 at 23-24, OLUTOLA vs. UNILORIN (2004) LPELR (2632) 1 at 10 and ELABANJO vs. DAWODU (2006) 15 NWLR (PT 1001) 76.
Order 9 Rules 10 and 11 of the Federal High Court (Civil Procedure) Rules, 2009 provide as follows:
10. Persons under legal disability may sue by their guardians or defend by guardians appointed for that purpose.
11. Before the name of a person is used in any action as next friend of an infant or other party, or as relator, that person shall sign a written authority for that purpose, and the authority shall be filed in the Registry.
As already stated the 2nd-4th Respondents are minors who are under a legal disability and cannot maintain an action eo nomine but can only sue through their next friend or guardian ad litem:SOFOLAHAN vs. FOWLER (2002) LPELR (3092) 1 at 15. If the 2nd-4th Respondents were the only Claimants at the lower Court, the Court would not have had the jurisdiction to entertain the action. However 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. See CROSS RIVER NEWSPAPER CORPORATION vs. ONI (1995) LPELR (898) 1 at 31, SAPO vs. SUNMONU (supra), BELLO vs. INEC (2010) LPELR (767) 1 at 35 and ANYADUBA vs. NRTC LTD (1992) LPELR (505) 1 at 47. Accordingly, the 2nd-4th Respondents are hereby struck out. This issue is therefore resolved partly in favour of the Appellants and partly in favour of the Respondents.
ISSUE NUMBER TWO
Whether the Appellants were liable for the death of the deceased.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that they are not liable for the death of the deceased, since the 4th Appellant stated that it was in the course of a struggle with the mob that attacked and stabled him that his gun fired while the mob was struggling for the gun. It was stated that the right to life was not absolute and that under Section 33 (2) (a) of the 1999 Constitution, a person would not be deemed to have been deprived of his life if he dies as a result of the use of such force in defence of any person from unlawful violence.
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. The case of APC vs. PDP (2015) 15 NWLR (PT 1481) 1 at 73 and 105 was referred to. It was stated that even though it was a civil case, the allegation that the 4th Appellant killed the deceased had to be proved beyond reasonable doubt. Section 135 (1) of the Evidence Act and the cases of SA?EED vs. YAKOWA (2013) 7 NWLR (PT 1352) 124 at 153, ANAMBRA STATE GOVT vs. GEMEX INT?L LTD (2012) 1 NWLR (PT 1281) 333 at 363, M.M. A. INC. vs. N.M.A. (2012) 18 NWLR (PT 1333) 506 at 547 and AMICO CONST. LTD vs. ACTEC INT?L LTD (2015) 17 NWLR (PT 1487) 146 at 186-187 were relied upon.
The Appellants maintained that the facts presented in the affidavits were contradictory and that oral evidence and cross examination was necessary to resolve the conflict. The case of I. H. LTD vs. SONEB ENT. LTD (2010) 4 NWLR (PT 1185) 561 at 584 and ASHEIK vs. BORNO STATE (2012) 9 NWLR (PT 1304) 1 at 27 were cited in support. More so, it was asserted that the facts adduced by the Respondents did not rise to proof beyond reasonable doubt and that a vital witness whose evidence was material did not depose to any affidavit. The cases of THE STATE vs. JOHN (2013) 12 NWLR (PT 1368) 337 at 360, GALADIMA vs. THE STATE (2012) 18 NWLR (PT1333) 610 at 631 and THE STATE vs. NNOLIM (1994) 5 NWLR (PT 345) 394 at 406 were called in aid.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondents maintain that the lower Court rightly held the Appellants liable for the death of the deceased. It was stated that the contradictions and inconsistencies in the Appellants counter affidavit which they did not resolve, weakened and destroyed their case, thereby leaving the Respondents affidavit unchallenged to the effect that the 4th Appellant killed the deceased; which unchallenged evidence the lower Court rightly relied on. The case of NASIR vs. CIVIL SERVICE COMMISSION, KANO STATE (2010) ALL FWLR (PT 515) 195 at 205 was relied upon.
It was submitted that the Appellants defence of self-defence or accident is an admission and amounts to proof that 4th Appellant killed the deceased. It was posited that the Appellants deposition is that the colleagues of the 4th Appellant disarmed him, signifying that the 4th Appellant had misused his gun to unlawfully kill the deceased, hence the need to disarm him. It was maintained that the fact that the action of the 4th Appellant resulted in murder does not deprive the Respondents of their right to enforce their fundamental right. The case of APPEAL NO. CA/L/493/2013: OMONYAHUY vs. IGP (unreported) decided on 28th July 2015 [now reported as (2015) LPELR (25581)] was relied upon.
APPELLANTS REPLY ON LAW
The Appellants maintain that the disarming of the 4th Appellant does not connote any misuse of firearm as argued by the Respondents. That it meant that the gun was taken away since the Police can lawfully bear arms and the 4th Appellant was in an unconscious state at the time.
RESOLUTION
It is not in dispute that the deceased Azeez Omotosho is dead. The said Azeez Omotosho was the husband of the 1st Respondent and father of the 2nd-4th Respondents. The fundamental right sought to be enforced by the Respondents is their right to dignity of human person as enshrined in Section 34 (1) of the 1999 Constitution based on their contention that the killing of the said Azeez Omotosho in their presence amounts to torture, inhuman and degrading treatment and a disrespect to their dignity and infringement of their respective individual right to a family. It is effulgent that the Respondents action is for the enforcement of the right to dignity of human person irrespective of the fact that the action which resulted in the infringement of the said right was the killing of their husband and father. In OMONYAHUY vs. IGP (2015) LPELR (25581) 1 at 70, Augie, JCA (now JSC) stated as follows:
‘In this case, the lower Court’s mind was fixated on the misconceived notion that the action before it was ‘founded under a criminal offence of murder’ that it failed to see that the 4th Appellant’s claim is one for the enforcement of his fundamental rights, thereby qualifying him to commence the action, under the 2009 FREP Rules’
In his contribution at page 77, Oseji, JCA stated thus:
‘To my mind the fact that there is possibility of prosecution for a case of murder does not deny an aggrieved applicant the constitutional right to enforce his right thereunder, hence Section 46(1) of the said Constitution.’
That said provision is sacrosanct and carries no exception such as in the case of injury to person or the loss of life.
Any infringement of the Fundamental Right of an applicant ignites his right to enforce same by virtue of the aforementioned Section and it is without prejudice to whatever further action the authorities of the State may want to take against such offender. It is a constitutionally guaranteed right and must at all times be seen and respected as such, if the wheel of the Rule of Law is to be allowed to grind properly.
I kowtow to the view eloquently expressed by this Court in the OMONYAHUY case. 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. Concomitantly, no question of vicarious liability for criminal action arises as the action is for enforcement of fundamental right.
The lower Court held 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. In pauciloquent terms, the case of the Respondents is that the 4th Appellant shot and killed the late Azeez Omotosho. The Appellants in their counter affidavit exhibited the extra judicial statement made by the 4th Appellant. It is now settled law that documents exhibited to an affidavit form part of the affidavit. See EZECHUKWU vs. ONWUKA (2016) LPELR (26055) 1 at 37, SOUTH EASTERN STATE NEWSPAPER CORPORATION vs. ANWARA (1975) 9-11 SC 55 at 64-65 and EYEMI v. ONAH (2013) LPELR (20328) 1 at 16.
In paragraphs 4-7 of the Appellants counter affidavit it is deposed as follows:
4. That contrary to averment in paragraph six, the 4th Respondent in the course of investigation and as recorded in his statement claim that he was attacked by mob including the deceased (i.e Azeez Omotosho) having a party around Ajisegiri area in Shogunle where he and his team members were conducting stop and search. Copy of the 4th Respondent’s statement is hereby attached and marked as Exhibit ‘A’.
5. That further to the above, the 4th Respondent further stated that in a desperate bid to dis-arm him, the deceased and the mob surrounded him and started dragging his rifle with him.
6. That it was in a bid to free the rifle from their grip, that the gun exploded and hit the deceased.
7. That as the rest members of the mob discovered that the deceased has been hit by a bullet, they release their grip on him and the rifle and took to their heels. (See page 63 of Volume I of the Records)
The above depositions are clearly to the effect of an accidental discharge; an event that occurred by accident. In the extra judicial statement attached as Exhibit A to the Counter Affidavit, it is, inter alia, stated as follows:
While I was on duty that fateful day I booked AK47 riffle with 60 round life ammunition I did not know how many ammunition expended but when my ammunition was count at Area ?F? I discovered I fire 38 ammunition and remaining twenty two round of ammunition. I did not fire the riffle to maim or kill anybody but to librate myself from the mist of the people who have over crowded me and there was no other means to save myself with the riffle.(See page 70 of Volume I of the Records)
The above is suggestive not of accident, but of self-defence; which is further buttressed by the submission of the Appellants counsel on the application of the provisions of Section 33 (2) (a) of the Constitution. The question then is what is the evidence adduced by the Appellants, was it accident or self-defence? The defence of self-defence and accident are mutually exclusive, such that they are contradictory or inconsistent. This is so because for an act to qualify as an accident, it has to be the result of an unwilled act, an event that occurs without the fault of the person alleged to have caused it. On the other hand, self-defence means that the person willingly did the act while in the process of defending himself: SULE vs. THE STATE (2009) LPELR (3125) 1 at 27.
Without a doubt, the case made out in the affidavit of the Appellants was self-contradictory; in such circumstances it could not have raised any facts that are in conflict with the Respondents affidavit and which would require oral evidence to resolve. Indeed, in such circumstances the facts in the affidavit of the Respondents are presumed to be true:ROYAL EXCHANGE ASSURANCE (NIG) LTD vs. ASWANI ILE IND LTD (supra). In OLLY vs. TUNJI (2012) LPELR (7911) 1 at 38, this Court (per Ogunwumiju, JCA) stated as follows:
“an affidavit is self-contradictory if the information contained in its annexures states facts inconsistent with it? once an affidavit is self-contradictory, it need not to be challenged by the other party as whatever facts the affidavit intends to establish would have been destroyed by the contradiction in the annexures.”
See also EKEKEUGBO vs. FIBERESIMA (1994) 3 NWLR (PT 335) 707 at 731 and BALOGUN vs. SHONIBARE (1997) 3 NWLR (PT 493) 317 at 331. In the circumstances, 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. See ATOSHI vs. AGBU (2018) LPELR (44477) 1 at 24, EJEFOR vs. OKEKE (2000) 7 NWLR (PT 665) 363 and NASIR vs. CIVIL SERVICE COMMISSION, KANO STATE (supra). In the light of the foregoing, I must answer this issue in the affirmative and resolve the same against the Appellants.
ISSUE NUMBER THREE
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.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants adopted their submissions on the previous issues and 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 case of JIM-JAJA vs. COP, RIVERS STATE (2013) 6 NWLR (PT 1350) 225 at 254 was cited in support.
SUBMISSIONS OF RESPONDENTS’COUNSEL
The Respondents assert that the Appellants have not advanced any argument that would warrant this Court interfering with the damages awarded, which award the Appellants have not faulted. The circumstances in which an appellate Court would interfere with the award of damages was set out and the case of ATTAH vs. IGP (2015) ALL FWLR (PT 805) 108 at 145 was called in aid.
RESOLUTION
Section 46 (2) of the 1999 Constitution provides for the Court hearing an application for enforcement of fundamental rights to make such orders as it may consider appropriate and to which the person who makes the application may be entitled. In resolution of issue number two (formerly three) above, I have held that the lower Court rightly held that the Appellants were liable for the death of the deceased thereby infringing the fundamental rights of the Appellants. The lower Court having so found and held was entitled to award damages in their favour for the proven infringement of their fundamental rights:JIM-JAJA vs. COP, RIVERS STATE (supra).
There is however a justifiable case made out by the Appellants in respect of the quantum of damages awarded particularly as it relates to the 2nd-4th Respondents. In the resolution of issue number one herein, I struck out the 2nd-4th Respondents who are minors for not having the legal capacity to maintain an action eo nomine. Since the 2nd-4thRespondents were under legal disability, no award can be made in their favour: ELIAS vs. ELIAS (supra) at 443-444. What is more, I have now struck out them out as parties in this matter.
In considering the amount to award as damages the lower Court stated as follows on pages 155-156 of Volume I of the Records:
“Under the Consequential Reliefs sought in the application, Limb 1 asks for N25 Billion, Limbs 2, 3 & 4 respectively ask for N100 Million for each of the Applicants [i.e. N100m x 4 persons x 3 places = N1,2000,000,000.00 [One Billion, Two Hundred Million Naira]. If my computation is right, the total damages claimed by the Applicants is N26.2Billion.
Since Limb 1 of the Consequential Reliefs was discountenanced earlier in this judgment, damages claimed in its respect is ignored.
As pertain to Limbs 2, 3 & 4, the Court will award what is deemed fair and reasonable in the circumstances of this case. The award is on the basis of all the violations together as affect all the Applicants.
The Applicants are hereby awarded compensatory damages of N250,000,000.00 (Two Hundred and Fifty Million Naira) against the Respondents jointly and severally.”(Underlining supplied)
It is lucent from the above periscope from the judgment of the lower Court, that the lower Court took into consideration the monetary compensation claimed by the 2nd-4thRespondents in awarding damages of N250million against the Appellant. Having held that the 2nd-4th Respondents, being under a legal disability, cannot take any benefit under the action, it necessarily follows that the damages awarded, in so far as it took them into account, was based on wrong principles of law; in consequence of which the damages awarded was too high.
An appellate Court will interfere with the damages awarded by the trial Court where it is satisfied that the trial Court acted on some wrong principle of law or that the amount awarded was so high or very small as to make it an entirely erroneous estimate of the damage suffered. See MUTUAL AIDS SOCIETY LTD vs. AKERELE (1965) LPELR (25263) 1 at 10-11 and SPDC LTD vs. TIEBO (2005) LPELR (3203) 1 at 25. In order to justify interference with the damages awarded by a trial Court, the appellate Court will invariably be satisfied that:
a) the trial Court had acted upon wrong principle of law or under a mistake of law
b) the award is arbitrary or perverse
c) there has been an element of wrong exercise of discretion in the award, or
d) injustice could occur if the appellate Court does not interfere: IGHRERINIOVO vs. SCC NIGERIA LTD (2013) LPELR (20336) 1 at 26-27 and ASESA vs. EKWENEM (2009) 13 NWLR (PT 1158) 410.
An award of damages is within the discretionary powers of the Court: BRITISH AIRWAYS vs. ATOYEBI (2014) LPELR (23120) 1 at 41 and G. K. F. INVESTMENT (NIG) LTD vs. NITEL PLC (2009) LPELR (1294) 1 at 30-31. The basic object of the award of damages is to compensate the claimant for the damages suffered as a result of the action of the defendant and the trial Court possesses the discretion to determine the quantum of damages it would award. In determining the quantum of damages to award for infringement of fundamental rights, the Courts consider the following factors, amongst others:
a) the frequency of the type of violation recent times
b) the continually depreciating value of the Naira
c) the motivation for the violation
d) the status of the applicant.
e) the undeserved embarrassment meted out to the applicant including pecuniary losses; and
f) the conduct of the parties generally particularly the Respondent.
See; ATTAH vs. IGP (2015) LPELR (24656) 1 at 46.
Taking the foregoing into account, and that it is only the 1st Respondent, the proper party, that is entitled to award of damages; it will amount to manifest injustice if the damages awarded by the lower Court to the 2nd-4th Respondents is allowed to stand. That said, it seems to me that in the diacritical circumstances of this matter, the sum of N20million for each of reliefs 2, 3 and 4, totalling N60million is fair and reasonable damages for the infringement of the fundamental rights of the 1st Respondent. This issue is therefore partly resolved in favour of the Appellants to the extent that the damages awarded in respect of Reliefs 2, 3 and 4 is reduced from N250million to N60million, in favour of the 1st Respondent only.
I turn now to consider the Respondents cross appeal.
THE CROSS APPEAL
The Respondents/Cross Appellants distilled a sole issue for determination in the cross appeal, namely:
Whether the trial Court was right to discountenance the Cross Appellants’ relief no. 1 at the trial for the reasons it advanced.
On their part, the Appellants/Cross Respondents equally crafted a sole issue for determination as follows:
“Whether the trial judge was right to have refused the Cross Appellants relief 1”
The issue for determination as formulated by the Appellants/Cross Respondent is succinct and apt. It is on the basis of the said issue as tinkered hereunder that I will consider the submissions of learned counsel and resolve the cross appeal.
ISSUE FOR DETERMINATION IN THE CROSS APPEAL
Whether the lower Court was right to have refused the Cross-Appellants relief 1.
SUBMISSIONS OF THE CROSS APPELLANTS COUNSEL
The Cross Appellants submit 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. The case ofOMONYAHUY vs. IGP (supra) was referred to. It was conclusively submitted that the Cross Appellants are entitled to the award of damages for the breach of the fundamental right of life of the deceased.
SUBMISSIONS OF THE CROSS RESPONDENTS? COUNSEL
The Cross Respondents argue 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. It was opined that the Cross Appellants had failed to prove that the Cross Respondents were responsible for the death of the deceased in order to entitle them to the relief sought, which allegation has to be proved beyond reasonable doubt. The cases of SA?EED vs. YAKOWA (supra), ANAMBRA STATE GOVT vs. GEMEX INT?L LTD (supra), M.M. A. INC vs. N.M.A. (supra) and Section 135 (1) of the Evidence Act were relied upon.
CROSS APPELLANTS REPLY ON LAW
In paragraph 3 of the Cross Appellants Reply Brief, it is stated that the issues raised in the Cross Respondents Brief do not warrant a reply. Notwithstanding, the Cross Appellants proceeded to proffer further submissions.
The purpose/function of a Reply Brief is to meet the issues raised in a Respondents or Cross Respondents Brief. Where an appellant or cross appellant is satisfied that no issues were raised warranting the filing of a reply brief, then it is inutile to file a Reply Brief. Accordingly, I would not go through the tedium of reviewing the submissions in the Reply Brief.
RESOLUTION OF THE CROSS APPEAL
In my consideration of the main appeal, I have found and held that the lower Court rightly held that the Cross Appellants were liable for the death of the deceased. There is nothing new that has been advanced on the basis of which I can change the view already expressed.
Section 33 (1) of the 1999 Constitution guarantees every person the right to life and that no one shall be deprived intentionally of his life except in stipulated circumstances. The lower Court in discountenancing with the relief 1 claimed by the Cross Appellants held that it is founded in tort and cannot constitute part of the principal claims under the Fundamental Rights (Enforcement Procedure) Rules. (See page 139 of Volume 1 of the Records). The pertinent question is whether Relief 1 of the Cross Appellants constitutes a principal relief for the enforcement of fundamental rights. With due deference to learned counsel for the Cross Appellants the ratio decidendi of the lower Court for discountenancing the Cross Appellants Relief 1 is not that the Cross Appellants, as dependants of the deceased, cannot enforce the constitutional right to life of the deceased. The quodlibet as evident from the ratio decidendi of the Court is whether the said Relief 1 is a claim for enforcement of fundamental right or whether it is a claim founded in tort.
Now, the reliefs which an applicant may seek and obtain under Section 46 (1) of the 1999 Constitution and in an action commenced under the Fundamental Rights (Enforcement Procedure) Rules must be one of those affecting any of the fundamental rights entrenched in Chapter IV of the Constitution. In SEA TRUCKS NIGERIA LTD vs. ANIGBORO (2001) LPELR (3025) 1, the Apex Court held that the correct approach in a claim for enforcement of fundamental rights is to examine the reliefs sought, the grounds for such reliefs and the facts relied upon. Where the facts relied upon disclose a breach of fundamental right, then there is redress through the Fundamental Rights (Enforcement Procedure) Rules. However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it will be incompetent to proceed. See also DENCA SERVICES LTD vs. LEO OLEKA & SONS LTD (2015) LPELR (24444) 1 at 19-20 and USMAN vs. IGP (2018) LPELR (45311) 1 at 24-25.
I have insightfully considered the Cross Appellants Relief 1. The question for determination on which it is predicated as set out on page 2 of volume 1 of the Records is:
“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
Upon the determination of this question the Cross Appellants sought the following declaration on page 3 of the volume 1 of the Records:
‘A declaration that the killing/murder in cold blood of Azeez Omotosho by the respondents through the 4th respondent is unlawful and is 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.’
Consequent upon this declaration the Cross Appellants sought damages as follows:
“An order of this honourable Court commanding the respondents jointly and severally to pay the applicants a compensation in the sum of N25,000,000,000.00 (twenty five billion naira) for the infringement of the Fundamental Human Right To Life of Azeez Omotosho which infringement occurred on the 2nd day of November 2013 when the 4th respondent unlawfully shot and killed Azeez Omotosho at Shogunle, Ikeja, Lagos State within the jurisdiction of this Court and which right is guaranteed under the 1999 Constitution and under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990.”
It seems translucent to me that the question for determination, the reliefs claimed and the facts upon which they are predicated affect the fundamental right to life of the deceased as enshrined in Section 33 of the 1999 Constitution. It is a fundamental right under Chapter IV of the 1999 Constitution which is capable of enforcement under Section 46 (1) of the 1999 Constitution by the dependants of the deceased by virtue of the FREPR. SeeOMONYAHUY vs. IGP (supra).
In IHEME vs. CHIEF OF DEFENCE STAFF (2018) LPELR (45354) 1 at 14-18, Onyemenam, JCA held as follows:
“On the question whether the action before the trial Court was that of tort or one seeking to secure the enforcement of the Appellant’s fundamental right”
A fundamental right is a right guaranteed in the Nigerian Constitution. It is a right which every citizen is entitled to by reason of being a human being unless if a person suffers any of the disabilities set out in the Constitution? There are therefore constitutional provisions and rules of procedures contrived for the enforcement of those rights specifically entrenched in the Constitution. These rights are so jealously guarded that it is only when a party’s right that has been so breached are such that are well clearly protected by the Constitution that the Constitutional provision can be exploited to remedy whatever wrong the party would have suffered.
I have examined the claim of the Appellant at the trial Court? The Claim of the Appellant is based purely on Fundamental Human Rights, particularly the right to Personal Liberty and Dignity of the Human Person. I agree? that the Appellant’s case is hinged on the gross violation of his Fundamental Human Rights particularly his right to human dignity. The learned trial Judge, in holding that the Appellant’s claim is based on tort, failed to take into cognizance, the very nature and elements constituting the Right to Dignity of the Human Person, as provided for in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) particularly Section 34 (1) (a) of the Constitution. From the foregoing, it is clear that the Appellant sought for a declaration that his right to personal liberty and human person which is provided for under Chapter IV of the 1999 Constitution, has been violated. This certainly brought the claim of the Appellant at the trial Court under the enforcement of fundamental human rights. From what I have said, I hold that the learned trial Judge was wrong to hold that the Appellant’s action was on tort.”
See also BASSEY vs. AKPAN (2018) LPELR (44341) 1 at 9-11 and AIG-IMOUKHUEDE vs. UBAH (2014) LPELR (23965) 1 at 55-59.
In the circumstances, the lower Court was evidently wrong in its holding that Relief 1 of the Claim is founded in tort and proceeding to discountenance the same. I iterate that the said Relief 1 seeks the enforcement of a fundamental right. In consideration of the main appeal I have held that the Cross Appellants affidavit evidence established that the Cross Respondents were liable for the death of the deceased; this entitles the Cross Appellants to the award of Relief 1 which was discountenanced by the lower Court. Accordingly, the said Relief 1 succeeds and the 1st Cross Appellant is awarded the sum of N40million as compensation for the infringement of the fundamental right to life of the deceased. The cross appeal therefore succeeds.
PERORATION
In the course of this judgment, I have considered the Respondents/Cross Appellants preliminary objection which succeeded in part. Equally the main appeal of the Appellants/Cross Respondents succeeded in part; just as the cross appeal of the Respondents/Cross Appellants succeeded. For the avoidance of doubt the total sum of N100million is awarded as damages in favour of the 1st Respondent/Cross Appellant. The parties having only registered relative success are to bear their respective costs of this appeal.
TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the draft of the judgment rendered by my Lord, UGOCHUKWU ANTHONY OGAKWU, JCA. His Lordship has meticulously addressed and resolved all the issues thrown up in the appeal, to my satisfaction. This matter has brought to the fore again; the incidences of the criminal outlawry and mindless killing of Nigerian citizens by trigger happy policemen, such as the 4 appellant herein.
Our decision in Omonyahuy v. Inspector General Police & Ors. (2015) LPELR 25581 (CA) should be a clear signal to the likes of the 4th appellant, that you cannot eat your cake and still have it. And with due deference to the vagaries of criminal investigation and prosecution of the 4th appellant, the 1 respondent and her children had the constitutional right to have approached the Court below, to enforce their fundamental rights to human dignity, for the torture, inhuman treatment and the killing of their bread winner Azeez Omotosho, in their presence. Their constitutionally guaranteed right is as enshrined in Section 34 (1) of the 1999 Constitution, as amended. Their action does not preclude the State from prosecuting the 4 appellant. It is just the same, that the prosecution of the 4th appellant, does not inhibit the respondents’ action.
It is hoped that with the emerging trend in awareness of Nigerian citizens, such as the respondents herein, whose husbands, wives and children are dastardly and callously murdered by trigger-happy policemen; who, approach the Courts, pursuant to the 2009 Enforcement of Fundamental Rights Rules, the tide of unnecessary killing of unarmed Nigerians, would be stemmed.
I adopt all the consequential orders, contained in the lead judgment, as mine.
Each side to bear own costs.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege of a preview of the lead judgment delivered by my brother, UGOCHUKWU ANTHONY OGAKWU, JCA.
I have nothing useful to add. I agree with the orders made and the damages awarded as reasonable recompense to the 1st Respondent/Cross Appellant.
Appearances:
Dr. Muiz Banire, SAN with him, Omotayo Olatunbosun, Esq., A. B. Munirudeen, Esq. and Dr. Najeem Amodu for Appellants/Cross RespondentsFor Appellant(s)
N. O. Agwulonu, Esq. for Respondents/Cross AppellantsFor Respondent(s)
