OGUNJIMI v. COP & ORS (2020)

OGUNJIMI v. COP & ORS

(2020)LCN/15225(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/138/2015

Before Our Lordships:

Philomena Mbua Ekpe Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Between

BRIGHT OMOTAYO OGUNJIMI APPELANT(S)

And

COMMISSIONER OF POLICE 2. INSPECTOR GENERAL OF POLICE 3. POLICE SERVICE COMMISSION 4. NIGERIA POLICE FORCE 5. DELTA STATE HOSPITALS MANAGEMENT BOARD RESPONDENT(S)

RATIO

WHETHER OR NOT A COURT CAN RAISE AN ISSUE SUO MOTU

The law is settled that a Court cannot arise an issue suo moto without affording the parties the opportunity to address it on the said issue. See ATANDA & ANOR V LAKANMI (1974) 1 ALL NLR (PT 1) 168; FRN V MOHAMMED (2014) LPELR – 22465 (SC), OBAWOLE & ANOR V AGANGA WILLIAMS & ANOR (1996) 10NWLR PART 477p 146. VICTINO FIXED ODDS LTD V OJO & ORS (2010) 8 NWLR PART 1197 at 486. PER AWOTOYE, J.C.A.

WHETHER OR NOT THE FEDERAL HIGH COURT HAS JURISDICTION TO ENTERTAIN A CLAIM FOR BREACH OF DECEASED PERSON’S RIGHT TO LIFE INSTITUTED BY THE DECEASED RELATIVES

The law is settled that a Federal High Court has jurisdiction to entertain a claim for breach of deceased person’s Right to life instituted by the deceased relatives.
In the first place human right cases can be entertained by either a State High Court or Federal High Court in a State subject to the provision of Section 251(1) of the 1999 Constitution as amended. They have concurrent jurisdiction in such matters. Section 46(1) of the Constitution of the Federal Republic of Nigeria (as amended) provides thus:
“Any person who alleges that any of the provision of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress.”
A High Court in a state is quite different from a High Court of a State. High Court in a State includes Federal High Court in a State but a High Court of a State refers to a State High Court. SeeOLUTOLA V UNIVERSITY OF ILORIN (2004) 18 NWLR (PT 905) 416.

CONDITIONS THAT MUST EXIST BEFORE THE PROVISIONS OF SECTION 15 OF THE COURT OF APPEAL ACT CAN BE INVOKED

The Apex Court in EZEIGWE V NWAWULU & ORS (2010) LPELR – 1201 (SC) examined the conditions that must exist before the provisions of Section 15 of the Court of Appeal Act can be invoked. Onnoghen J.S.C. (as he then was) explained it thus:
“In interpreting the above provision, this Court has, in the case ofOBI VS INEC (2007) 1 NWLR (PT 1046) 465, AMAECHI VS INEC (2008) 5NWLR (PT 1080) 227; INAKOJU VS ADELEKE (2007) 4 NWLR (PT 1025) 423 AND AGBAKOBA VS INEC (2008) 18 NWLR (PT 1119) 489 stated that for the provision to apply the following conditions must exist to wit:
a) That the lower Court or trial Court must have legal power to adjudicate in the matter before the appellate Court can entertain it.
b) That the real issue raised by the claim of the appellant at the lower Court must be seen to be capable of being distilled from the grounds of appeal.
c) That all the necessary materials must be available to the Court for consideration.
d) That the need for expeditors disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented and
e) That the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.” PER AWOTOYE, J.C.A.

WHETHER OR NOT UNCHALLENGED FINDINGS OF FACT STAND ADMITTED AND UNDISPUTED

My Lords it is trite law that unchallenged findings of facts stand admitted and undisputed. A finding of fact not appealed against is deemed admitted see CHIEF ADEKOYA OKE OLUKOGA & ORS V MRS OLUFEMI FATUNDE (1996) 7 NWLR PART 462 p. 516 OKUOJA V ISHOLA (1982) 7 SC. 314; EJOWHOMU V EDOK-ETER MANDILAS (1986) 6 SC. 41 at 47 DABO V ALHAJI ABDULLAHI (2005) 7 NWLR (PT 932) 181, ALHAJI USMAN V GARKE (2003) 7 SCNJ 38 at 50 – 51. PER AWOTOYE, J.C.A.

TUNDE OYEBAMIJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellant against the judgment of Federal High Court Warri Judicial Division delivered on 29/10/14.

At the Court below, the applicant (now appellant in this Court) brought an application for enforcement of Fundamental Right of his late brother who was shot dead (allegedly) by a Nigerian police office on 15/4/2013 at Effurun, Delta State.

The applicant sought the following reliefs.
“RELIEFS SOUGHT
A. A DECLARATION that the shooting and killing of Mr. Bright Olushola Ogunjimi, the Applicant’s only brother on the 15th April, 2013 at Effurun in Delta State by a Police Officer attached to the “Police Division in Warri Delta State, who are agents/servants of the 1st to 4th Respondents was a gross violation of the said MR BRIGHT OLUSHOLA OGUNJIMI’S Fundamental Rights to Life and/or Dignity of his Human Person contrary to the provisions of Sections 33(1) and 34(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) andArticles 4 and 5 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004 and therefore unconstitutional and illegal.
B. AN AWARD of N500,000,000.00 (five hundred Million Naira) against the 1st to 4th Respondents as general and/ or exemplary damages/compensation for the breach of MR BRIGHT OLUSHOLA OGUNJIMI’S Fundamental Rights of Life and Dignity of his person.
C. AN ORDER compelling the 5th Respondent to release the corpse of MR. BRIGHT OLUSHOLA OGUNJIMI’S immediately and unconditionally to the Applicant for proper burial.
D. THE costs of this action against the 1st to 4th Respondents.”
The ground of on which the reliefs were sought are:
GROUNDS ON WHICH THE RELIEFS ARE SOUGHT
a. That the extra-judicial killing of Mr. Bright Olushola Ogunjimi’s on 15th April 2023 by a Policeman, being an agent of the 1st, 2nd, 3rd and 4th Respondents violated the Late Mr. Bright Olushola Ogunjimi’s Right to Life and Dignity of his Human Person protected under Sections 33( 1) and 34( 1) of the Constitution of Nigeria and Articles 4 and 5 of the African Charter of Human and People’s Rights (Ratification and Enforcement) Act, Laws of the Federation, 2004.
b. That the Olu did not commit any criminal offence nor was he sentenced to death by any Court of Law or Tribunal in Nigeria.
c. The 1st to 4th Respondents armed the Policemen and unleashed him and others into streets of Effurun with uncertain order and no restraint or control, allowing him to Kill Mr. Bright Olushola Ogunjimi’s (Olu) in such a gruesome manner.
d. Till date, the Respondents have not released the corpse of MR. BRIGHT OLUSHOLA OGUNJIMI’S for burial, but have been detaining it with the 5th Respondent, since 15th April 2013 for no legal cause.
e. The Applicant needs to give his only brother a decent burial.
f. The applicant is entitled to remedy in form of damages for the violations of the constitutional and other legal rights of Mr. Bright Olushola Ogunjimi, his only brother”

After hearing the parties the learned trial Judge declined jurisdiction and struck out the application.

This is why the appellant filed an initial Notice of Appeal on 31/10/14 and an Amended Notice of Appeal challenging the decision of the trial Court.

After transmission of record of appeal to this Court, the appellants filed his brief of argument. The Respondents inspite of having been properly served with necessary processes failed to file their briefs of argument. The appeal was therefore heard based on appellant’s brief alone.

Learned counsel for the appellant postulated two issues for determination to wit:

APPELLANT’S BRIEF OF ARGUMENT
The Appellant’s Brief was settled by DELE UCHE IGBINEDION Esq. and filed on the 23rd day of January, 2018.

The learned appellant’s counsel raised the following issues for determination:

ISSUES FOR DETERMINATION
a) Whether the trial lower Court at law, is allowed to raise a new issue, suo motu and decide the case before it, on the said issue, in favour of the Respondents without affording the Appellant the opportunity to address it on the said issue and if the answer is in the negative, whether the Federal High Court has the jurisdiction to entertain a claim for the Breach of a Deceased’s person’s Right to Life, instituted by or at the instance of the deceased’s relatives pursuant to the provisions of Fundamental Rights (Enforcement Procedure) Rules 2009. (Distilled from Grounds 2 and 3 of the Amended Notice of Appeal dated 23rd January 2017).

b) Whether the Lower Court properly evaluated the evidence which was adduced by the parties when it failed to give judgment in favour of the Appellant and award the reliefs claimed. (Distilled from Grounds 1 and 4 of the Amended Notice of Appeal dated 23rd January 2017)ISSUE ONE
Herein, learned counsel submitted that the issue of the alleged murder of the Appellant’s brother was raised suo motu by the trial lower Court. He added that the trial Court raised the said issue while delivering its Judgment and did not invite the Appellant or afford him an opportunity to address the Court on the issue raised suo motu by the said lower Court and yet, the Court resolved the said issue in favour of the Respondents, against the Appellant.

He further submitted that a Court can raise any issue suo moto, and no Court of law can resolve or decide an issue raised suo motu without affording the parties, an opportunity to address the Court on that said issue raised suo motu. On this he cited the case of FINNIH V. IMADE (1992) LPELR – 1277 (SC).

It was contended that the Appellant showed through the uncontroverted Affidavits, the attached Exhibits and the Statement made pursuant to the Fundamental Rights (Enforcement Procedure) Rules, that his only brother was shot and killed by a Policeman attached to “A” Divisional Police Station, Warri on 15th of April 2013.

It was further posited that when death results from the use of force for any of the purposes recognised by the Constitution, it is the duty of the Trial Court to determine whether the force used was proportionate and necessary in the circumstances and whether alternative means could have been used to achieve the same purpose.

Learned counsel submitted that the right to life also imposes an obligation on the State to refrain from the intentional and unlawful taking of life, except in exceptional circumstances permissible by the Constitution in Section 33 (2). He added that the State is also obligated by the provision on the right to life to investigate deaths caused by the actions or omissions of State agents or deaths for which the State might be responsible.

He added that in a case where a Nigerian Citizen has been killed in such gruesome circumstances, the Right to Life would have been breached and the Appellant has forever lost his only brother and will go through live without the companionship, comfort and help of his brother.

With particular reference to the Sections 33(1) of the Constitution, It was argued that the enforcement of the fundamental right to life of the Applicant’s brother is peculiar in nature and the above mentioned provision of the Constitution constitute an exception which is enforceable against the intentional deprivation of a person’s life.

Arguing on issue two, learned counsel submitted that the 1st -4th Respondents’ Counter affidavit did not controvert, challenge or in any way shake or impeached the evidence and credibility of Bridget and the Appellant and the 1st-4th Respondent deposed that on receipt of the processes in this suit, a search was conducted into the Criminal Records of the Police in Delta State and there is no record of the arrest of the deceased or of him being shot and killed by the Police.

It was further submitted that the deceased fiancée deposed copiously that Olu was shot by Policemen attached to the “A Division” for allegedly been a part of an Armed Robbery on a Bank, again this fact was not challenged, or controverted. He added that Paragraphs 6(v) – (vii) of the Respondents depositions are contrary to Section 115 the Evidence Act, 2011 and should be discountenance.

Learned counsel argued that the Lower Court having found and held that the facts of the case is quite clear should have enter Judgment for the Applicant rather than strike out the case on Jurisdictional ground under the misconceived notion that the action before it was “founded under a criminal offence of murder. He added that the Rules and Law of this Court permits this Court to determine on the merit the real issue in controversy.

It was therefore urged on this Court set aside the judgment of the lower trial Court dated and delivered on the 29th day of October 2014 for being perverse, unsupportable by the evidence and completely unsustainable.

RESOLUTION
ISSUE A
a) Whether the trial lower Court at law, is allowed to raise a new issue, suo motu and decide the case before it, on the said issue, in favour of the Respondents without affording the Appellant answer is in the negative, whether the Federal High Court has the jurisdiction to entertain a claim for the Breach of a Deceased’s person’s Right to Life, instituted by or at the instance of the deceased’s relatives pursuant to the provisions of the opportunity to address it on the said issue; and if the Fundamental Rights (Enforcement Procedure) Rules 2009. (Distilled from Grounds 2 and 3 of the Amended Notice of Appeal dated 23rd January 2017).

I have carefully considered the submissions of the learned counsel for the appellant on this issue. It is true that the learned trial Judge raised the issue of jurisdiction suo moto and proceeded to determine same without giving the parties opportunity to address him on the point. This point was even not raised by any of the parties.
The law is settled that a Court cannot arise an issue suo moto without affording the parties the opportunity to address it on the said issue. See ATANDA & ANOR V LAKANMI (1974) 1 ALL NLR (PT 1) 168; FRN V MOHAMMED (2014) LPELR – 22465 (SC), OBAWOLE & ANOR V AGANGA WILLIAMS & ANOR (1996) 10NWLR PART 477p 146. VICTINO FIXED ODDS LTD V OJO & ORS (2010) 8 NWLR PART 1197 at 486.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Now to the issue of jurisdiction raised and determined Suo Motu by the lower Court.

JURISDICTION OF THE FEDERAL HIGH COURT TO ENTERTAIN THE APPELLANT’S CASE.
The law is settled that a Federal High Court has jurisdiction to entertain a claim for breach of deceased person’s Right to life instituted by the deceased relatives.
In the first place human right cases can be entertained by either a State High Court or Federal High Court in a State subject to the provision of Section 251(1) of the 1999 Constitution as amended. They have concurrent jurisdiction in such matters. Section 46(1) of the Constitution of the Federal Republic of Nigeria (as amended) provides thus:
“Any person who alleges that any of the provision of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress.”
A High Court in a state is quite different from a High Court of a State. High Court in a State includes Federal High Court in a State but a High Court of a State refers to a State High Court. SeeOLUTOLA V UNIVERSITY OF ILORIN (2004) 18 NWLR (PT 905) 416.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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According to OWOADE JCA IN INSP. GABRIEL OF COMM. POLICE MONITORING UNIT LAGOS STATE V UKPABIO (2008) 3 NWLR (PART 1073) P. 21.
“The central question in this appeal is whether the Federal High Court has jurisdiction to try cases under Fundamental Rights Enforcement Procedure Rules 1979 and the simple answer to that question is in the positive. This is so, because “Court is defined under the applicable law that is the Fundamental Rights Enforcement Rules 1979 to include the Federal High Court and the position is further supported by the exclusive jurisdiction of the Federal High Court under Section 251(1) of the 1999 Constitution, more particularly by the provisions of Section 251(1) (p) (q) (r)and (s) that is in relation to the administration or management and control of the Federal Government or any of its agencies …Section 46(1) of the 1999 Constitution talks about the special jurisdiction conferred on the “High Court in that State for redress.” And not High Court of a State. If the provision of Section 46(1) of the 1999 Constitution has wanted to exclude the Federal High Court from the special jurisdiction conferred in relation to the Fundamental Human Rights Provision, the Section would have talked about the High Court to the State and not the “High Court in that State”. See also ADETONA & ORS V IGELE GENERAL ENTERPRISES LTD (2011) 7 NWLR Pt. 1247 p 535.
I must pause at his juncture to comment about the phase “in relation to him” as used by the drafter of the constitution under Section 46(1) of the Constitution of the Federal Republic of Nigeria. I think with due respect it excludes actions by meddlesome interlopers but does not exclude actions of genuinely interested parties. The phase restricts and limits in the ambit of the operation of the Section 46(1) of the 1999 Constitution (as amended) to actions instituted by genuinely interested persons.
The next point to consider is whether or not the lower Court had jurisdiction to entertain the matter now on appeal. The simple answer in my respectful opinion is YES! This is for the following reasons;-
1) It is a case of enforcement of right to life instituted by a relation of the deceased victim see NASIRU BELLO V THE STATE (1986) 5 NWLR (PT 45) 828 and it is in respect of an imputed decision of a Federal Government agency. See Section 251 (1)(r) of the 1999 Constitution as amended, the act having been done by its agents in the cause of their employment
2) The principal respondents in the matter are Federal agencies – any action affecting them fall under the jurisdiction of the Federal High Court – see HON JUSTICE RALIAT ELELU –HABEEB & ANOR V THE HON ATTORNEY GENERAL OF FEDERATION & ORS (2012) 13 NWLR PART 1318 p. 423.
3) The Federal High Court and the State High Court have concurrent jurisdiction in cases of enforcements of right to life as guaranteed under the 1999 constitution (as amended) see OCHOLI ENOJO JAMES V INEC & ORS (2015) LPELR – 24494 (SC) subject to the provision of Section 251(1) of the 1999 Constitution as amended.

In the light of the above I resolve issue A in favour of the appellants.

ISSUE B
Whether the lower Court properly evaluated the evidence which was adduced by the parties when it failed to give judgment in favour of the Appellant and award the reliefs claimed (Distilled from Grounds 1 and 4 of the Amended Notice of Appeal dated 23rd January 2017) The appellants by this appeal seeks to invoke the provision of Section 15 of the Court of Appeal Act to urge this Court to enter judgment in favour of the appellant having regard to the evidence before the lower Court.
The Apex Court in EZEIGWE V NWAWULU & ORS (2010) LPELR – 1201 (SC) examined the conditions that must exist before the provisions of Section 15 of the Court of Appeal Act can be invoked. Onnoghen J.S.C. (as he then was) explained it thus:
“In interpreting the above provision, this Court has, in the case ofOBI VS INEC (2007) 1 NWLR (PT 1046) 465, AMAECHI VS INEC (2008) 5NWLR (PT 1080) 227; INAKOJU VS ADELEKE (2007) 4 NWLR (PT 1025) 423 AND AGBAKOBA VS INEC (2008) 18 NWLR (PT 1119) 489 stated that for the provision to apply the following conditions must exist to wit:
a) That the lower Court or trial Court must have legal power to adjudicate in the matter before the appellate Court can entertain it.
b) That the real issue raised by the claim of the appellant at the lower Court must be seen to be capable of being distilled from the grounds of appeal.
c) That all the necessary materials must be available to the Court for consideration.
d) That the need for expeditors disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented and
e) That the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.”

In the light of the above statement from the apex Court, I have viewed the proceedings at the lower Court.

The lower Court in its judgment made the following unchallenged findings fact on page 137 of the record of appeal.
“Having carefully read the oral and written submissions of both counsel, the facts of this case is quite clear: that on 15-4-14 the Applicant’s brother, Mr. Bright Olushola Ogunjimi (popularly known as Olu) was shot in the leg in front of his residence allegedly by a member of a team of policemen from ‘A’ Police Division who thereafter pushed him into their waiting jeep and took him to their station. Subsequently, Olu died from the gunshot and his body was allegedly deposited by the murderers at the Mortuaries of the Central Hospital Warri which is also very close to “A’ Police Division.”
My Lords it is trite law that unchallenged findings of facts stand admitted and undisputed. A finding of fact not appealed against is deemed admitted see CHIEF ADEKOYA OKE OLUKOGA & ORS V MRS OLUFEMI FATUNDE (1996) 7 NWLR PART 462 p. 516 OKUOJA V ISHOLA (1982) 7 SC. 314; EJOWHOMU V EDOK-ETER MANDILAS (1986) 6 SC. 41 at 47 DABO V ALHAJI ABDULLAHI (2005) 7 NWLR (PT 932) 181, ALHAJI USMAN V GARKE (2003) 7 SCNJ 38 at 50 – 51.
I have gone through the Notice of Appeal of the Appellant and have also taken note that there is no cross appeal in this appeal. The findings of fact of the lower Court stated above are therefore unchallenged and deemed admitted.

What then is the position in the face of the above facts that are unchallenged?

The answer is I have no other option, than to grant the application of the applicant as sufficient materials to enable me invoke the provision of Section 15 of the Court of Appeal Act are before this Court.

I resolve issue B in favour of the appellant in the circumstance.

I have no hesitation in allowing this appeal. The life of Mr. Bright Olushola Ogunjimi was harvested prematurely in a wicked and horrible manner without any regard to the provision of any law in violation of the Sections 33(1) and 34(1) of the Constitution of the Federal Republic of Nigeria (1999) as amended. It is said that those whom the society has conferred powers and privileges upon to protect its citizens, have turned around to turn the said citizens into victims of murder, violence and assassination.

This appeal is allowed.

The judgment of the Federal High Court Warri Judicial Division in Suit No. FHC/WR/CS/170/2013 is hereby set aside.

In its place, I hereby order that the applicant’s application succeeds.

The following reliefs are hereby granted in favour of the applicant.
A. A DECLARATION that the shooting and killing of Mr. Bright Olushola Ogunjimi, the Applicant’s only brother on the 15th April, 2013 at Effurun in Delta State by a Police Officer attached to the “Police Division in Warri Delta State, who are agents/servants of the 1st to 4th Respondents was a gross violation of the said MR BRIGHT OLUSHOLA OGUNJIMI’S Fundamental Rights to Life and/or Dignity is unconstitutional and illegal.
B. AN AWARD of N200,000.000.00 (Two hundred Million Naira) against the 1st to 4th Respondents as general and/ or exemplary damages/ compensation for the breach of MR BRIGHT OLUSHOLA OGUNJIMI’S Fundamental Rights of Life and Dignity of his person is hereby granted.
C. THE 5TH RESPONDENT is hereby ordered to release the corpse of MR. BRIGHT OLUSHOLA OGUNJIMI immediately and unconditionally to the Applicant for proper burial.

PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, TUNDE OYEBAMIJI AWOTOYE, JCA.

I am in total agreement with the issue thus raised and adopted. I also align with the reasoning and conclusion arrived thereat.

I abide that the judgment of the Federal High Court Warri Judicial Division in Suit No. FHC/WR/CS/170/2013 be set aside.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form the judgment just delivered by my learned brother, Tunde Oyebamiji Awotoye, JCA; I agree that this appeal ought to be allowed in the manner elaborately set out by my learned brother and I also so allow it.

Appearances:

ROBERT IGBINEDION For Appellant(s)

C.O. AGBAGWU Deputy Director Delta State for 5th Respondent For Respondent(s)