Whether constitutional right to life of a dead person can be enforced by his dependants

CITATION: ( 2022) LPELR- 56933( CA)

In the Court of Appeal

In the Makurdi Judicial Division Holden at Makurdi

ON FRIDAY, MARCH 4, 2022 Suit No: CA/ MK/ 53/ 2018

Before Their Lordships:

IGNATIUS IGWE AGUBE CORDELIA IFEOMA JUMBO- OFO MUSLIM SULE HASSAN

1. THE NIGERIA SECURITY & CIVIL DEFENCE CORPS BENUE STATE COMMAND

2. JIBRIN M. SHUAIBU COMMANDANT

BENUE STATE COMMAND - Appellant( s)

AGER GBERTSUE SAMUEL

LEADING JUDGMENT DELIVERED BY MUSLIM SULE HASSAN, J. C. A. FACTS

TBetween

HE respondent at the trial Court filed an application for the enforcement of fundamental human rights of a deceased person ( Iorunde Ager) being his son pursuant to Sections 33( 1), 34( 1)( a), 35( 4) & S( 5), 36( 1)( 5) of 1999 Constitution of the Federal Republic of Nigeria ( as amended) and Order 2 of the Fundamental Rights ( Enforcement Procedure) Rules 2009 as well as Articles 4, 5, 6 & 7 of the African Charter on Human and Peoples Rights and under the inherent jurisdiction of the court.

The learned trial judge entered judgment in favour of the respondent. Dissatisfied, the appellants filed an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION

The Court of Appeal determined the appeal on the following issues thus:

1. Whether the Court below was right to have held and entered judgment that the respondent’s son’s fundamental rights have been breached in any way by the appellants.

2. Whether the court below was right to have held and entered judgment that the respondent is entitled to the awarded reliefs by the trial Court.

3. Whether the court below was right to have held and entered judgment that the applicant’s ( now respondent) non- compliance with the pre- action notice did not negate court’s jurisdiction in enforcement of fundamental rights application.

4. Whether the court below was right to have held and entered judgment that the 1st appellant is a juristic personality and properly before the Court.

5. Whether the court below was right to have held and entered judgment that the respondent has placed enough evidence to proof his case against the appellants.

APPELLANTS’ SUBMISSION

And

Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal

Respondent( s)

On issue one, appellants’ counsel submitted that the fundamental right enforcement procedure rules did not contemplates the enforcement of deceased rights. This right according to counsel is personal and does not survive a deceased person; citing EZEADUKWA v. MADUKA ( 1997) 8 NWLR ( Pt. 518) 600 paras E- F; ( 1997) LPELR- 8062( CA), Order 1 Rule 2 of Fundamental Right ( Enforcement Procedure) Rules 2009 and Chapter IV of the 1999 Constitution of the FRN as amended. He further submitted that by the definition of the word “person” under the Interpretation Act and Advanced Learners Dictionary which define a person to include anybody of persons corporate or unincorporated, it is not practicable for a deceased person to be standing before the court. He submitted that the option open to the respondent was to seek redress ( compensation) in civil suit or through criminal charge for culpable homicide punishable with death/ not punishable with death via Attorney General’s power.

Appellants’ counsel submitted on issue two that the arrest, detention, administrative bail issued to all the accused persons including the respondent’s deceased son and the institution of criminal case against the deceased, which was admitted by the respondent in his affidavit in pages 8, 9, 10, 11 and 12 of the record, is justified in law and fall within the exception of Section 33 ( 2) of the 1999 Constitution of the FRN as amended. He contended that since the respondent did not apply to vary the terms of the bail granted to the deceased, the respondent cannot now say that the terms were excessive. He argued that the torture and the cause of the death have not been established and likewise the post mortem medical report ( Autopsy Test) has not been produced. He finally submitted that the respondent’s claims are ancillary or incidental to the main grievance or complaint and enforcement of such rights per- se cannot resolve the substantive claim which is entirely a different case.

On issue three, appellants’ counsel submitted that failure on the part of the respondent to serve pre- action notice on the appellants rendered the judgment of the trial Court a nullity citing BELLO V. AG OYO STATE ( 1986) 12 SC 1; ( 1986) LPELR- 764( SC).

On issue four, appellants’ counsel maintained that the respondent ought to commence this suit against the Nigeria Security & Civil Defence Corps as a statutory body having a corporate entity not its subsidiary or component part, ( i. e., its agents) which does not have a corporate entity; Section 1( 2) of Nigeria Security and Civil Defence Corps Act 2003 as amended. He further argued that the matter at the trial Court was contentious and could not have been commenced by motion on notice; INAKOJU V. ADELEKE ( 2007) 4 NWLR ( Pt. 1025); ( 2007) LPELR- 1510( SC).

On issue five, appellants’ counsel submitted that he who alleges must prove; Sections 132 and 133 of the Evidence Act. He maintained that the respondent failed to prove the allegation of death of the respondent’s son by torture.

RESPONDENT’S SUBMISSION

Respondent’s counsel referred to Order 1 of the fundamental right ( enforcement procedure) rules 2009 which defines an applicant in a fundamental right suit to mean: “… a party who files an application or on whose behalf an application is filed under these rules.’’ He submitted that the appellants’ contention that the procedure for enforcing the rights of the respondent’s deceased son ought to have been in the usual civil suit is highly misconceived.

On issue two, respondent’s counsel submitted that there was also no evidence that the detention of the deceased beyond the constitutionally guaranteed period was for the purpose of bringing him to Court. He argued that failure to apply for variation of administrative bail term is not a guarantee to breach the constitutional limit of detention of suspect; Section 35 of the Constitution of the Federal Republic of Nigeria, 1999. He also contended that the appellants had ( and still have) custody of the deceased’s corpse and it is incumbent on them to produce a medical report at the trial to rebut the allegation of torture and death. Failure establishes the autopsy report, he contended, shows that if produced at the lower Court would have worked against the appellants; Section 167( d) of the Evidence Act. He finally submitted that that fundamental right enforcement is the only claim in the suit and not an “ancillary claim”

On issue three, respondent’s counsel submitted that cases of fundamental rights are sui generis, and Section 46 of the Constitution and Order II of the fundamental rights enforcement procedure rules do not contemplate any wedging device to the enforcement of fundamental rights; EFCC V. AKINGBOLA ( 2015) ALL FWLR ( Pt. 794) 136 at 144; ( 2015) LPELR- 24546( CA).

On issue four, respondent’s counsel submitted that the 1st appellant was established by law while the 2nd appellant is a juristic person and at all material times the Commandant of the 1st appellant. He maintained that Section 1( 2) of Nigeria Security and Civil Defence Corps Act provides that the Corps may sue or be sued in its corporate name, and as such the said provision is not mandatory.

On issue five, respondent’s counsel submitted that that under Order II Rules ( 2)-( 5) of the fundamental rights enforcement procedure rules 2009, what the respondent as applicant in the Court below needed to do to prove his case was to file an application accompanied by affidavit and documentary evidence. The appellants as respondents below were also mandated to file a counter- affidavit and other requisite processes which they also did. He submitted that all that was left was for the learned trial judge to consider the application viz a viz the affidavit and documentary evidence and reach a decision which is exactly what he did. He maintained that the facts of breach of rights were succinctly laid out in the application and the learned trial Judge considered them each on its merit against the counter- affidavit.

He also submitted that the contention that the respondent’s son died of natural causes is a matter that would have been raised at the trial with sufficient evidence to prove especially that they had the opportunity to conduct an autopsy as they were ( and still are) in possession of the deceased’s body.

RESOLUTION OF ISSUES

The court held that by virtue of Order 1 Rule 2 and Order 2 Rule 4 of the fundamental rights ( enforcement procedure) rules 2009, the constitutional right to life of a dead man could be enforced by his dependents. See Mrs PRECIOUS OMONYAHUY & ORS V. THE INPECTOR- GENERAL OF POLICE & ORS ( 2015) LPELR- 25581 ( CA).

The court also held that the detention of the deceased by the respondent at its facility in Makurdi beyond 24 hours even when it is common knowledge that there are courts of competent jurisdictions within Makurdi metropolis for the respondents to arraign the deceased exceeded the limits under Section 35 ( 5) ( a) and ( b) of the Constitution of the Federal Republic of Nigeria ( as amended), was unconstitutional, null and void, and contravened the deceased’s fundamental rights to freedom of personal liberty.

The court, on issue three, held that pre- action notice is not required in fundamental rights cases as the special procedure stipulated for the enforcement of fundamental rights is quite different from the normal proceedings that we are used to. See the case of EFFC V. AKINGBOLA ( 2015) All FWLR ( Pt. 794) 136 at 144; ( 2015) LPELR- 24546( CA).

The court held, with regard to issue four, that Section 7 of the Nigeria Security and Civil Defence Corps Act creates a state command in each state of the federation and the respondent sued the state command in which the infringement occurred and as rightly submitted by learned counsel for the respondent where there is a wrongful presentation or spelling of their names that cannot defeat the aim of justice. See CHIEF ADERIBIGBE JEOBA V. OSHO OWONIFADE ( 1974) LPELR- 1606 ( SC).

On issue five, the Court held that the role of a trial Court is to hear evidence, to evaluate the evidence, to believe or disbelieve witnesses, make findings of fact based on the credibility of the witnesses who testified and to decide the merits of the case based on the findings. See IME DAVID IDIOK V THE STATE ( 2008) LPELR- 1423 ( SC).

The Court further held that by virtue of Order II Rules 1- 7 of the fundamental rights ( enforcement procedure) rules 2009 all that the trial Court need to consider is to evaluate the affidavit evidence and exhibits placed before him by the parties and arrive at a just decision. The court further held that the issue raised by the appellants in his brief that the respondent’s son died of natural causes is a matter that would have been raised at the trial Court and apart from that, the issue is a fresh issue which requires leave of this court to be sought and obtained before arguing same in accordance with Order 4 Rule 2 of the Court of Appeal rules 2021.

See UBA Plc v. BTL Ind. Ltd ( 2005) 10 NWLR ( Pt. 933) SC 356. Since leave of this Court was not sought and obtained to argue the fresh issue that the deceased died of natural causes and no evidence of such was presented, the Court discountenanced the submissions of appellant’s counsel on the issue.

HELD

The appeal was dismissed. By way of consequential order, the court ordered the appellants to forthwith release the corpse of the deceased in their custody to the respondent for decent burial with cost of N500,000.00 ( Five Hundred Thousand Naira) awarded against the appellants in favour of the respondent.

APPEARANCES:

. T. Azoo, Esq., holding the

Brief of M. Uzuma, Esq.

T. Akar, Esq.