Anachuna Anyaoke & Ors. V. Dr. Felix C. Adi & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C.

The unfortunate incident which gave rise to this case was the execution of Nasiru Bello, hereinafter referred to as the deceased, by the agents of the Oyo State Government in execution of the sentence of death passed on him by the High Court of Oyo State after it had convicted him of the offence of armed robbery. He had appealed to the then Federal Court of Appeal against the conviction but the execution was carried out before his appeal was heard and determined.

The facts of the case are not in dispute. On 30th October 1980 the High Court sitting at Ibadan convicted the deceased of the offence of armed robbery punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1970 as amended by the Robbery and Firearms (Special Provisions) Act 1974 and the court sentenced him to death. On 12th November 1980, within the time prescribed by law, he filed his notice of appeal against the said conviction in the Federal Court of Appeal and a copy of the notice of appeal was served on the Attorney-General of the Oyo State.

On 21st April 1981 a copy of the records of appeal was also served on the Attorney-General. Thereafter, while the appeal was pending, the Attorney-General recommended to the Governor the execution of the deceased and in consequence thereof the execution was carried out on 5th September 1981. When the appeal came for hearing before the Federal Court of Appeal on 13th October 1981, the Solicitor-General of Oyo State informed the Court of the inadvertent execution of the deceased. Accordingly, the Federal Court of Appeal struck out the appeal.

It was as a result of the premature execution of the deceased that his dependants, hereinafter referred to as the Appellants, instituted a suit in the High Court of Oyo State claiming “N 100,000 as damages for illegal killing of their bread winner” against the Oyo State, hereinafter referred to as the Respondent. The Appellants based their claim on the doctrine “where there is a right, there is a remedy.” Among the defences averred by the Respondent was that the Statement of Claim disclosed no cause of action. The Appellants controverted that defence in paragraphs 1 and 2 of their Reply to the Statement of Defence in these terms:

“1. The Plaintiffs aver that the plaintiffs have a cause of action in that the constitutional right of appeal of their bread-winner was illegally terminated and the benefits the plaintiffs expect from the maliciously and/or illegally executed relation permanently destroyed.

2. The plaintiffs shall contend that the recommendation from the defendant’s office is very irresponsible, reckless and/or malicious since the defendant’s office was fully aware of the pending appeal of the executed person, Nasiru Bello.”

After having considered the evidence and submissions of Counsel, the learned trial Judge held:

(1) that the execution of the deceased was wrongful because it deprived him of his constitutional right of having his appeal determined by the Federal Court of Appeal under section 220(1)(e) and, if need be, by the Supreme Court under 213(1) (d) of the Constitution; and

(2) that having regard to the rule in Baker v. Bolton (1808) 1 Camp. 498 approved in Admiralty Commissioners v. S.S. Amerika (1917) A.C. 38 at page 51. a person cannot recover damages in tort for the death of another person unless he brings his case within the ambit of the Torts Law, Cap. 122, 1959 Laws of Western Nigeria, now Cap 124 the Laws of Oyo State of Nigeria 1978. The trial Judge then examined the Appellants’ pleadings and concluded that the Appellants had not purported to formulate their claim in accordance with the provisions of the, said Torts Law and that the pleadings did not in fact satisfy or comply with the requirements of the said Torts Law. Furthermore, he observed that even if the claim had been based under the Torts Law, the Appellants would have to prove negligence on the part of the Respondent. He found no proof of negligence. He also stated that negligence could not be inferred because there was no plea of res ipsa loquitur. Accordingly, he dismissed the claim.

Nevertheless, although the trial Judge dismissed the claim, in compliance with the observation of this Court in Alhaji Bello v, The Diocesan Synod of Lagos & Ors. (1973) 3 S.C. 103, he assessed damages he would have awarded under the Torts Law in these terms:

“There is evidence before me that the 2nd, 3rd, 4th and 5th plaintiffs are his children. Their ages range between eleven and one and a half years. Some of them are said to be in school. The 6th and 7th plaintiffs are his father and mother respectively. They are both advanced in age and could hardly engage in any useful occupation. The 8th plaintiff is his nephew whilst the 11th plaintiff is his junior brother for whose education he was responsible in his life time. The 14th plaintiff is his wife.

I consider all these plaintiffs as the deceased’s dependants who, if the action had succeeded would have been entitled to compensation. There is however paucity of evidence before me as to how much he was spending on each one of them. All I have is that he was spending about N200.00 on all the plaintiffs monthly.

This is not a useful guide on which to arrive at a reasonable figure. In spite of this handicap, I believe each child as well as each ward is entitled to N1,000.00. In other words, the 2nd, the 3rd, the 4th, the 5th, the 8th and the 11th plaintiffs are entitled to N1,000.00 each. As for the 14th plaintiff an award of N600.00 would be adequate in the circumstances of this case. The parents i.e. the 6th and 7th plaintiffs would be entitled to N400.00 each. On the whole, I believe an award of N7,400.00 would have met the justice of the case. This would have been the damages I would have awarded if I had found that the case had been made out hut since my decision is to the contrary, my judgment is that the claim fails and it is therefore dismissed. Finally I am constrained on the facts of this case to recommend to the Oyo State Government to look into the possibility of making an ex gratia payment to the dependants of the deceased. Nasiru Bello, my judgment dismissing this action notwithstanding.”