UNITED CEMENT COMPANY OF NIGERIA LIMITED & ORS v. MRS. CHARITY MBEH ISIDOR & ORS (2016)

UNITED CEMENT COMPANY OF NIGERIA LIMITED & ORS v. MRS. CHARITY MBEH ISIDOR & ORS

(2016)LCN/8441(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2016

CA/C/228/2014

RATIO

DAMAGES: EFFECT OF FAILURE TO PROVE RELIEFS SOUGHT BY PARTIES

Indeed, it’s a trite fundamental principle, that in any claim for damages, a plaintiff must succeed in establishing the claim vis-a-vis the relief thereof. Thus, where a plaintiff woefully fails to prove the claim thereof with some credible evidence, the relief for damages must naturally fail: I. I. T. A. v. AMRANI (1994) 3 NWLR (pt. 332) 296 @ 325 paragraphs C – D.
It’s trite that the claimant who asserts the existence of the claim thereof shoulders the burden to prove same. Thus, in the event of failing to prove same, his claim vis-a-vis the entire action must fail. See ATAMAH vs. EBOSELE (2009) All FWLR (pt 473) 1385 @ 1399 paragraph E. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
FAIR HEARING: EFFECT OF A PROCEEDING DONE IN BREACH OF FAIR HEARING RIGHT
In the case of UKACHUKWU VS. PDP, the Apex Court reiterated the trite fundamental doctrine that:
“Any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity.
See (2014) 17 NWLR (pt 1435) 194 @ 163 Paragraphs B – E, per Kekere-Ekun, JSC. See also TSOKWA MOTORS (NIG) LTD v. UBA PLC (2008) All FWLR (pt 403) 1240 @ 1255 Paragraphs A-B. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
EVIDENCE: CAN THE ADDRESS OF A COUNSEL AMOUNT TO EVIDENCE
It is equally a trite and well settled principle, that the address (brief) of a counsel, no matter how brilliantly articulated cannot serve as a substitute for either pleadings or evidence. Primarily, the Court has an onerous duty to limit the scope of the adjudication process thereof to pleadings and credible evidence predicated thereupon. See OKWEJUMINOR v. GBAKEJI (2008) ALL FWLR (PT 400) 405 @ 442 PARAGRAPHS D – E; AWONUSI v. AWONUSI (2007) ALL FWLR (pt. 391) 1642 @ 1655 PARAGRAPHS A – B; NIGER CONST. LTD v. AKUGBANI (1987) 3 NWLR (pt. 59) 111. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
CIRCUMSTANCES THE DOCTRINE OF RES IPSA LOQUITUR IS APPLICABLE
A fortiori, where there is on the record a credible evidence explaining the occurrence of an event, it would be highly injudicious for the Court to place reliance on the doctrine of res ipsa loquitur. See ABI V. CBN (2012) 3 NWLR (PT. 1286) 1 @ 32 paragraphs F – H:
This Latin maxim is applicable to actions for injury caused by negligence where no proof of such, negligence is required beyond the accident itself. The purport of the doctrine is that an event which in the ordinary course of things was more than not to be caused by negligence was by itself evidence of negligence depending on the absence of any explanation. Once the facts are known or where the Defendant gave a satisfactory explanation, the doctrine will no longer apply.
See also NEPA V. ALLI (1999) 8 NWLR (PT 259) 279 @ 302 paragraphs A – A; FAN MILK LTD v. EDEMEROH (2000) 9 NWLR (pt. 672) 402 @ 418 paragraphs B-E. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

Between

1. UNITED CEMENT COMPANY OF NIGERIA LIMITED

2. AYI ITA AYI

3. ROSELINE AGBOR – Appellant(s)

AND

1. MRS. CHARITY MBEH ISIDOR

2. COMMISSIONER OF POLICE, CROSS RIVER STATE

3. INSPECTOR PATRICK ANEKE – Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is a fall-out of the judgment of the High Court of Cross River State holden at Akamkpa Judicial Division, delivered on April 30, 2014 in suit No. HK/1/2012. By the said judgment, the Court below, coram Ikpeme, J. awarded general damages of N10,000,000.00 in favour of the claimant (1st Respondent) against the 4th and 5th Defendants (1st Appellant, 2nd and 3rd Respondents). Dissatisfied with the said judgment, the Appellant filed the notice of appeal thereof in the Court below on 15/05/2014.

BACKGROUND FACTS

The said suit leading to the appeal was instituted in the Court below by the 1st Respondent on January 27, 2012, thereby seeking the following reliefs against the 1st, 2nd and 3rd Appellants and 2nd and 3rd Respondents, jointly and severally the following reliefs:

(i) The sum of N500, 000,000.00 as general damages and exemplary damages for the unlawful arrest, detention, torture and death of the claimants benefactor in police custody upon the orchestration of the defendants;

(ii) An Order directing the defendants to henceforth be directly

responsible for the up-keep of the deceased children; (sic).

Consequent upon the filing of pleadings by the respective parties the suit proceeded to trial. The 1st Respondent personally testified for the plaintiff. The Appellants, the 2nd and 3rd Respondents deemed it expedient to rest the case thereof on that of the 1st Respondent. At the close of trial, the learned counsel filed and adopted their respective written addresses. Thus, resulting in adjourning the case to 30/4/14 for delivery of judgment. On the said date, the Court below delivered the vexed judgment to the following conclusive effect:

“I find the 1st Defendant and 4th and 5th Defendants liable to pay the damages for the death of Mbeh Isidor, husband to the claimant and sole provider for her and their children before his death. In the circumstance, I award general damages of Ten Million Naira (N10,000,000.00) in favour of the claimant to be paid by the Defendant and 4th and 5th Defendants. I make no awards against the 2nd and 3rd defendants because from the facts of the case, they are employees and disclosed agents of the first Defendant being the principal.

The 2nd

prayer asking for an order that the defendants henceforth be directly responsible for the upkeep of the deceased children is hereby refused.

SIGNED;

(AKON IKPEME)

JUDGE

30/4/14

As alluded to above, the appeal is against the judgment in question. Upon entering the appeal on 13/6/14, the Appellants’ learned counsel proceeded to file the brief thereof on 30/6/14. However, the Respondents, for reason best known thereto, failed to file any brief despite the service of the Appellants’ brief thereon. Thus, on 29/9/15, this Court granted leave to the Appellants to proceed to hear the appeal on the brief thereof alone. Yet again, on 21/01/2015, when the appeal lastly carne up for hearing, the Respondents were not represented by their counsel, despite the evidence of service of the Notice of Hearing thereon.

The said Appellants’ brief spans a total of 23 pages. At page 3 thereof, three issues have been formulated, viz:

1. Whether having dismissed the claims of the first 1st Respondent for lack of proof by credible evidence, the learned trial Judge was right to have thereafter, held the 1st Appellant and the 2nd & 3rd

Respondents liable for damages.

2. Whether the learned trial Judge was right to have held that this is a case in which the doctrine of res ipso liquitor would apply.

3. Whether the learned trial Judge did not contradict himself when he held that “… I find and hold that the claimant can lawfully maintain the present action.

The issue No. 1 is canvassed at pages 3-6 of the brief. It was submitted inter alia, that having found and held that the claim for general and exemplary damages (for the lawful arrest and torture of the deceased) must fail for lack of proof, there was no other credible evidence before the Court in support of the 1st Respondent’s claim and award of damages by the trial Court. See I.I.T.A. V. AMRANI (1994) 3 NWLR (Pt.332) 296 @ 325 C-D; APAMAH VS EBOSELE (2009) ALL FWLR (Pt.473) 1385 @ 1399 E; EFFIONG VS A.I.S. & S. LTD. (2011) 6 NWLR (Pt. 1243) 266 @ 276-277 H-A et al. The Court is urged to so hold, and accordingly set aside the award of damages in favour of the 1st Respondent against the 1st Appellant, the 2nd and 3rd Respondents respectively.

The Issue No. 2 is extensively argued at pages 7-15 of the brief. In a

nutshell, it is submitted that the fact that the deceased died in police custody does not necessarily imply that he died out of negligence in which the doctrine of res ipsa liquitor applies. See OSIGWE VS UNIPETROL (2005) ALL FWLR (Pt. 267) 1525 @ 1543; SHELL DEV. CO. (NIG) LTD. v. AMARO (2000) 10 NWLR (Pt. 675) 248 @ 279 E-F.

It is contended, that the 1st Respondent did not indicate to place any reliance on the doctrine of res ipsa liquitor in her pleadings. And no evidence was led in support thereof. See ABI VS CBN (2012) 3 NWLR (pt. 286) 1 @ 32 F-H; FAN MILK LTD. VS EDEMEROH (2000) 9 NWLR (Pt. 672) 402 @ 418 B-E, et al.

Further contended, that the evidence of CW1, elicited under cross examination, shows clearly that there was a Medical Report of the cause of death of the deceased, but which the 1st Respondent failed to tender. Relying on Section 167(d) of the Evidence Act 2011, it’s postulated that to have withheld the said Medical Report, the 1st Respondent knew that if so produced, it would have been unfavourable to her case.

The Court is urged to so hold.

The Issue No. 3 is canvassed at pages 15-18 of the brief, to the

effect, inter alia, that the finding at pages 178 – 179 of the record, to the effect that the 1st Respondent can lawfully maintain an action for payment of compensation for the death of the deceased, as ahead of claim, is not known to law. Allegedly, the said finding contradicts the basis of the reliefs sought by the 1st Respondent. See OKOMU OIL PALM LTD. VS OKPAME (2007) 3 NWLR (Pt. 1020) 71 @ 86-87 H-B; INCORPORATED TRUSTEES OF JAMATUL-MUSHAMEEN COUNCIL OF LAGOS VS OKI (2010) ALL FWLR (Pt. 537) 730 paras C-E; et al.

The Court is urged to so hold.

Conclusively, the Court is urged upon to uphold the appeal, and accordingly set aside the judgment of the Court below.

I have amply considered the nature and circumstances surrounding the appeal, the submission contained in the Appellants’ brief vis-a-vis the record of appeal, as a whole.

I have deemed it expedient to adopt the three issues raised in the Appellants’ brief for the determination of the appeal. As alluded to above, on 29/9/15, this Court granted leave to the Appellant to argue the appeal upon the brief of argument thereof alone, due to the inexplicable failure of the

Respondents to file their respective briefs. By virtue of the provisions of Order 19 Rule 18 (4) of the Court of Appeal Rules, 2011, the appeal shall be deemed to have been duly argued on 21/01/16 and to be so determined on the basis of the Appellants’ brief alone. And I so hold.

ISSUE NO.1

The first issue raises the vexed question of whether or not, having dismissed the claims of the 1st Respondent for lack of proof by credible evidence, the Court below was right to have held that the 1st Appellant, and the 2nd & 3rd Respondents were liable for damages. As copiously reproduced above, the 1st Respondent claimed against the Appellants, the 2nd and 3rd Respondents the sum of N500, 000.00 as general and exemplary damages for unlawful arrest, detention, torture and death of the 1st Respondents’ late husband and benefactor. By the second relief thereof, the 1st Respondent sought:

“(ii) An Order directing the Defendants the henceforth, be directly responsible for the up-keep of the deceased children (sic).”

Pertinently, to appreciate whether or not the Court below was right in granting the two reliefs by the 1st Respondent, a recourse has

to be made to the vexed judgment, wherein it was found to the effect thus:

On the third issue whether the claimant has put a strong enough case buttressed by admissible evidence to warrant the grant of her claims, I seem to agree with the Defence that claimant’s account is based on hearsay. She admitted that what she told the Court is what other Youths in detention told her. She did not call even one eye witness to recount to the Court what happened to those arrested on that fateful date of 15th January, 2010. No witness who saw that the accused was arrested and tortured came forward to testify. The Defendant’s counsel cited several authorities on what constitutes hearsay evidence. I agree with them on that score.

The claim for general and exemplary damages for the unlawful arrest and fortune of the claimant’s benefactor must therefore fail as there was no proof by credible evidence before this Court that the accused was tortured and unlawfully arrested.

See page 180 of the Record.

What’s more, with particular regard to the second relief of the 1st Respondent’s claim in question the Court below came to the conclusion that-

“The 2nd

prayer asking for an Order that the Defendants henceforth be directly responsible for the upkeep of the deceased children is hereby refused.”

See page 182 of the Record.

However, the above findings notwithstanding, the Court below in the final analysis came to the following dramatic and rather in explicable conclusion thus:

In the present case the fact that the deceased died in police custody is unchallenged. The defendant have not given any explanation as to voting and how the deceased died, neither are the facts sufficiently known as to the specific cause of death of the deceased in police custody. I therefore agree with the claimants’ counsel that the fact speaks for itself that the deceased died out of lack of duty and care by the police in whose custody he died they defendants having offered no explanation. Since it is also in evidence that the police arrested the deceased amongst at the instance of the first Defendant, I find the 1st Defendant and 4th and 5th Defendants liable to pay the damages for the death of Mbah Isidor, husband to the claimant and sole provider for her and their children before his death. In the circumstances I

ward general damages of Ten Million Naira (N10,000,000.00) in favour of the claimant to be paid by the Defendant and 4th and 5th Defendants. I make no awards against the 2nd and 3rd defendants because from the facts of the case they are employees and disclosed agents of the first and Defendant being the principal.

See page 181-182 of the Record.

Instructively, it’s obvious that the initial finding of the Court below, to the effect that the claim for general and exemplary damages for the unlawful arrest and torture of the deceased person must fail due to lack of credible evidence (proof), is cogent and duly supported by the evidence on the record.

However, the second finding, to the effect that the 1st, 4th and 5th Defendants were liable to pay damages for the death of Mbah Isidor, husband to the claimant and sole provider for her and the children thereof, should not in any way be credible, as it is not supported by the evidence on record.

Indeed, it’s a trite fundamental principle, that in any claim for damages, a plaintiff must succeed in establishing the claim vis-a-vis the relief thereof. Thus, where a plaintiff woefully fails to

prove the claim thereof with some credible evidence, the relief for damages must naturally fail: I. I. T. A. v. AMRANI (1994) 3 NWLR (pt. 332) 296 @ 325 paragraphs C – D.

It’s trite that the claimant who asserts the existence of the claim thereof shoulders the burden to prove same. Thus, in the event of failing to prove same, his claim vis-a-vis the entire action must fail. See ATAMAH vs. EBOSELE (2009) All FWLR (pt 473) 1385 @ 1399 paragraph E.

It should be reiterated, that general damages, as a matter of principle, are not usually awarded merely as a matter of course, speculative or sentimental disposition. Thus, the Court not being a father Christmas, it cannot dispose itself to dolling-out or awarding damages as a sheer largesse, or out of sympathy borne out of extraneous consideration, but rather on credible evidence establishing an actionable wrong or injury: ADEKUNLE VS. ROCKVIEW HOTEL LTD (2004) 1 NWLR (Pt. 853) 161 @ 175 – 176 paragraphs H – B; EFFIONG v. A. I. S. A. S. LTD (2011) 6 NWLR (pt. 1243) 266 @ 276 – 277 paragraphs H – A.

As alluded to above, a critical albeit dispassionate, consideration of the pleadings of the

claimant would show the allegation that the claimant?s late husband and benefactor died in police custody was inextricably tied to the allegation that he died as a result of torture. Thus, having found that there was no (any) credible evidence regarding the allegation of torture, there’s no basis whatsoever for the Court below to find and hold as it erroneously did, that the 1st Appellant, the 2nd and 3rd Respondents were liable for the death of the deceased person in question. And I so hold.

In the circumstance, therefore, the issue No. 1 ought to be, and same is hereby, resolved in favour of the Appellants.

ISSUE NO. 2:

The second issue raises the question of whether or not the Court below was right, when it held that this was a case in which the doctrine of RES IPSA LOQUITUR would apply.

Most instructively, at page 191 of the Record, the Court below found as follows:

In the present case the fact that the deceased died in police custody is unchallenged. The Defendants have not given any explanation as to why and how the deceased died neither are the facts sufficiently known as to the specific cause of death of the deceased in

police custody. I therefore agree with the claimants, counsel that the fact speaks for itself that the deceased died out of a lack of duty and care by the police in whose custody he died, they Defendants having offered no explanation.

With possible deference, the above finding by the Court below is outrageous, as it’s not predicated upon the evidence adduced on record. It is indeed trite, that the term RES IPSA LOQUITUR is a Latin derivative denoting the thing (fact) speaks for itself. The doctrine or term is usually employed in cases of proof of alleged unexplained happenings, the occurrence of which could not have happened in the ordinary course of events or things without negligence on the part of somebody other than the claimant. See OSIGWE VS. UNIPETROL (2005) All FWLR (pt 267) 1225 @ 1543; ROYAL DE (NIG) LTD VS. N. O. C. M. COY PLC (2004) 8 NWLR (pt. 874) 206 @ 223 paragraphs C – F; NIG. PORT PLC VS B. P. LTD (2012), 8 NWLR (pt 1333) 454 @ 483 A – B.

ln the present case, the finding of the Court below is to the effect that there was no credible evidence in support of the case of the 1st Respondent. Thus, it’s my considered view, that there was

no credible evidence on record before the Court below in proof of the finding for the application of the res ipsa loquitur. It is pertinent to equally postulate, that the doctrine of res ipsa loquitur is essentially predicated upon pleadings vis-a-vis evidence. Essentially, the principle of res ipsa loquitur is raised in one of two ways. First, it may be pleaded or raised by expressly reciting the maxim itself. Second, it may alternatively be pleaded or raised to the effect that the plaintiff intends to rely upon the occurrence of the wrong or injury itself as evidence of negligence. See STRABAG CONST. (NIG) LTD V. OGAREKPE (supra); ONWUKA V. OMOGU (1991) 3 NWLR (PT 230) 393 @ 415 paragraphs C – D; SDPC (NIG) LTD v. AMARO (2000) 10 NWLR (PT 675) 248 @ paragraphs E – F.

Thus, by the combined effect of the foregoing authorities, the trite doctrine res ipsa loquitur need not be pleaded by expressly stating the maxim. It suffices if the particulars of negligence are given, showing that the claimant relies on the said doctrine. See SDPC (NIG) LTD V. AMARO (supra) @ 279 paragraphs E – F.

In the instant case, the fact that the vexed maxim of res ipsa

loquitur was neither pleaded nor alluded thereto by the 1st Respondent in the pleadings thereof, is not in doubt. The maxim was undoubtedly surreptitiously introduced in the eleventh hour by the 1st Respondent in the Reply Address thereof. Thus, this prompted the Court below to allude at page 181 lines 3 – 5 of the Record thus:

“I seem to agree with the defender of claimants course that this is a case in which the doctrine of res ipsa loquitur would apply.”

Most unfortunately, however, the Appellants had no opportunity to respond to the 1st Respondent’s reply Address. Undoubtedly, the doctrine of res ipsa loquitur, being a rule of evidence requiring a claimant to prove by a credible evidence thereby calling for a rebuttal from the defence, the Court below ought not to have denied the Appellants the opportunity to respond to the 1st Respondent’s submission in the Reply Address thereof. See COLE VS MATTINS (1968) ALR @ 162 – 163 Per LEWIS, JSC; AKINDELE VS REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS BRANCH (1967) NMLR 263; EFFIONG v. CRS.I.E.C (2010) 14 NWLR (pt 1213) 106 @ 133 paragraphs C-E; UKWU v. BUNGE (1997) 8 NWLR (pt 518) @ 544

paragraphs B – D.

Of the foregoing plethora of authorities on the issue, I think the case of COLE V. MATTINS (supra) is most instructive! Indeed, that case has the singular privilege of being a fore-runner and a locus classicus regarding the recurrent controversial issue of fundamental right to fair hearing entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended). In that case, it was aptly asserted by the Supreme Court thus:

It is most desirable that if a Court considers after hearing argument of counsel that a matter before it can infact be decided on a technical point on which it has not been addressed by counsel, then the judge should have the matter re-opened and give counsel on each side the opportunity to address on the point which he thinks may decide the matter before he gives Judgment in regard to it. It is only after so acting that a Court should adjudicate on a technical point taken by the Court itself, particularly when the defect, if there was one, could be cured if the Court in its discretion, give leave to amend.

Per Lewis, JSC @ 161 – 162.

In the instant case, the decision of the

Court below, resulting in awarding damages to the 1st Respondent, was solely predicated upon the technical point regarding the doctrine of res ipsa loquitor raised by the 1st Respondent’s counsel in the Reply Address in question. Therefore, the attitudinal disposition of the Court below in denying the Appellants the opportunity to respond to the technical point in question has resulted in truncating the fundamental right of fair hearing accorded the Appellants under Section 36 (1) of the 1999 Constitution (supra).

In the case of UKACHUKWU VS. PDP, the Apex Court reiterated the trite fundamental doctrine that:

“Any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity.?

See (2014) 17 NWLR (pt 1435) 194 @ 163 Paragraphs B – E, per Kekere-Ekun, JSC. See also TSOKWA MOTORS (NIG) LTD v. UBA PLC (2008) All FWLR (pt 403) 1240 @ 1255 Paragraphs A-B.

It is equally a trite and well settled principle, that the address (brief) of a counsel, no matter how brilliantly articulated cannot serve as a substitute for either pleadings or evidence. Primarily, the Court has an onerous

duty to limit the scope of the adjudication process thereof to pleadings and credible evidence predicated thereupon. See OKWEJUMINOR v. GBAKEJI (2008) ALL FWLR (PT 400) 405 @ 442 PARAGRAPHS D – E; AWONUSI v. AWONUSI (2007) ALL FWLR (pt. 391) 1642 @ 1655 PARAGRAPHS A – B; NIGER CONST. LTD v. AKUGBANI (1987) 3 NWLR (pt. 59) 111.

A fortiori, where there is on the record a credible evidence explaining the occurrence of an event, it would be highly injudicious for the Court to place reliance on the doctrine of res ipsa loquitur. See ABI V. CBN (2012) 3 NWLR (PT. 1286) 1 @ 32 paragraphs F – H:

This Latin maxim is applicable to actions for injury caused by negligence where no proof of such, negligence is required beyond the accident itself. The purport of the doctrine is that an event which in the ordinary course of things was more than not to be caused by negligence was by itself evidence of negligence depending on the absence of any explanation. Once the facts are known or where the Defendant gave a satisfactory explanation, the doctrine will no longer apply.

See also NEPA V. ALLI (1999) 8 NWLR (PT 259) 279 @ 302 paragraphs A – A; FAN MILK

LTD v. EDEMEROH (2000) 9 NWLR (pt. 672) 402 @ 418 paragraphs B-E.

In the instant case, the lower Court has found as a matter of fact, that-

“There was no proof by credible evidence … that the accused was tortured and unlawfully arrested.”

What’s more, there was indeed [a potential] evidence regarding the cause of death of the deceased person: the medical report of the post mortem examination conducted upon the deceased. Under cross examination, the 1st Respondent testified to the effect, inter alia, thus.

“Yes when my husband died, he was subjected to a medical examination to know the cause of death. The medical report is with Okon Effiom who was detained along with my husband in the cell.”

See page 159 lines 18 – 21 of the record.

Undoubtedly, the foregoing evidence of the 1st Respondent under cross-examination confirms most unequivocally, that there was indeed a medical report regarding the cause of death of the deceased person in question. However, for reasons best known thereto, the 1st Respondent did not deem it appropriate or even expedient to produce and tender in evidence, the said medical Report to establish the

actual cause of death of the death. Thus, I agree with Appellant’s learned counsel, that.

My lords, in due consideration of Section 167 (d) of the Evidence Act 2011 we submit and respectfully urge your lordship to so find and hold that to have withheld the medical report of the cause of her benefactor’s death that 1st Respondent knew that if she had produced it, it would have been unfavourable to her case; and in consequence that she has not proved that her benefactor died as a result of negligence by the Appellants, and or the 2nd and 3rd Respondents or by anybody else as held by the learned that judge.

See page 13 paragraph 4.35 of the Appellant’s brief.

In the circumstance the second issue ought to be, and it’s hereby, resolved in favour of the Appellants.

ISSUE NO. 3:

Lastly, the third issue raises the question of whether or not the Court below did not contradict itself when it found and held that “the claimant can lawfully maintain the present action.” The said issue is predicated on Ground 1 of the Notice of Appeal.

At pages 178 – 179 of the Record, the Court below was recorded to have found, inter alia, thus:

On the

Second issue whether the claimant can lawfully maintain the present action…

Arising from the above one is want to urge ?is this suit based on personal rights of the deceased?” I think not CW1 has stated that she was married to the deceased and had three children for him, whatever caused his death therefore affects her in view of their union with the deceased in marriage.

The submission of the Appellants, in the main, is to the effect that the above finding of the Court below, to the effect that the 1st Respondent can lawfully maintain the action for the payment of compensation for the death of her husband and benefactor in police custody, as a head of the claim, is not known to our law. And that, the 1st Respondent’s claim contradicts the basis of the reliefs sought by her before the Court below.

In-variably, the term personal right of action, (as regards personal injury), is characterized by the Latin maxim ?ACTION PERSONALIS MORITUR CUM PERSONA” which denotes a personal right of action dies with the person.

Under the common law, the rule is to the effect that if an injury was caused either to the person or to the property

of another for which unliquidated damages only could be recovered in satisfaction, the action died with that person to whom or by whom the wrong was done. See OKOMU OIL PALM LTD V. OKPAME (2007) 3 NWLR (PT 1020) 71 @ 86 ? 87 paragraphs H – B; INCORPORATED TRUSTEES OF THE JAMATU-UL-MUSLIMEEN COUNCIL OF LAGOS VS OK (2010) ALL FWLR (pt 537) 730; NZOM VS JINADU (1987) 1 NWLR (PT.51) 533; RE-OTUEDON (1995) 4 NWLR (PT.392) 655; NZENWOSU VS. NGONADI (1988) 3 NWLR (PT.81) 163; OYEYEMI VS COMMFOR LOGAL GOVERNMENT OF KWARA STATE (1992) 2 NWLR (PT.226) 661; OKONWA V. DOHERTY (2010) ALL FWLR (PT. 528) 929.

In the latter case of OKONWA VS DOHERTY (supra), this Court aptly reiterated the trite fundamental doctrine, to the effect that –

Where the suit is on the personal right of a deceased litigant, the right of action dies with the deceased. The Latin maxim action personalis moritur cum persona simply means an action based on the personal rights of a deceased person dies with the person.

Per Rhodes Vivours, JCA (as he then was) @ 945 – 946 paragraphs H – A.

In the instant case, there is every cogent reason for me to appreciate, that the action is

predicated upon the personal injury and right of the deceased person, Mbeh Isidor, who was alleged to have been unlawfully arrested, detained and eventually tortured to death. That, the suit is predicated upon the personal injury and right of the late Mbeh Isidor, is obvious from the pleadings and evidence of the 1st Respondent. Thus, the alleged personal injury of the deceased person in question could not rightly be said to have survived the deceased, in the light of the pleadings and evidence on record and the foregoing plethora of authorities. And I so hold.

In the circumstance, the third issue is equally hereby resolved in favour of the Appellants.

Before putting the last dot to this judgment, I have deemed it apt to reiterate that justice, as cherishingly guaranteed under the 1999 Constitution and the law, cannot be administered by the Courts in vacuo. It must be administered in accordance with the said constitution and the Law.

As Oputa, JSC (of blessed memory) once postulated in a paper:

‘TOWARDS JUSTICE WITH A HUMAN FACE’:

Under constitutional provisions guaranteeing the right to justice, the justice to be administered is not an

abstract justice as conceived by the judex but justice according to law. Having seen the imperfections of the strict law as the hand maid of justice, it follows that to have justice with a human face the rule of equity must form part of the entire social experiment.

Undoubtedly, the preservation of the well cherished (Cardinal doctrine of the) rule of law is a sacred duty which as judges we must endeavour to achieve despite all odds. Thus, Judges should not be seen to be creating obstacles in the path of justice according to law:

“The Judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the Government and all persons in Nigeria. The law should be even handed between the Government and the citizen.?

See GOVERNOR OF LAGOS STATE vs. OJUKWU (1986) 1 NWLR (pt. 18) 621 per Obaseki, JSC (of blessed memory).

Recall the immutable dictum of Lord Aitken, that fearless common law jurist of all time, thus:

In this country (England) amid the crash of arms, the laws are not silent. They speak the same language in war as in peace. It was always been one of the pillars of

freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecter of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified by law.

See LIVERSIDGE vs. ANDERSEN (1942) AC 206 @ 244.

Hence, against the backdrop of the foregoing postulations, and having regard to the resolution of all the three issues in favour of the Appellants, I have no hesitation whatsoever in coming to the most inevitable conclusion that the instant appeal is meritorious. Consequent whereupon, the appeal is hereby allowed by me. The judgment of the Cross River State High Court, delivered at Akamkpa Judicial Division on April 30, 2014 in Suit No: HK/1/2012 by the Hon. Justice Akon B. Ikpeme, is herby set aside.

Parties shall bear their respective costs of litigation.

CHIOMA EGONDU NWOSU-IHEME J.C.A.: I had the advantage of reading before now the judgment delivered by my learned brother, I. M. M. SAULAWA, JCA.

I adopt the facts of this case as properly set down in the lead judgment.

I totally

agree with the reasoning and conclusion.

There is no doubt that there is merit in this appeal and it is hereby allowed. Consequently, the judgment of the trial Court in Suit No. HK/L/2012 delivered on April 30, 2014 is accordingly set aside.

I endorse the order as to costs made by SAULAWA, JCA.

ONYEKACHI AJA OTISI, J.C.A.: I read in advance, a draft copy of the Judgment just delivered by my learned Brother, I.M.M. Saulawa, JCA, allowing this appeal. The issues raised in this appeal have been comprehensively addressed by my learned brother, and, I am in complete agreement with his reasoning and conclusion, which I adopt as mine.

I also allow this appeal and abide by the Orders made in the lead Judgment.

Appearances

Julius Idiege with him, Nnenna Orji, Charles Osuolah, Oluwatosin Ademakin & Stella OkekeFor Appellant

AND

Respondent’s Counsel was absentFor Respondent