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.”

The Appellants were not satisfied with the decision of the trial Court on both the issues of liability and quantum of damages. So they appealed to the Court of Appeal.

In the lead judgment of Uche Omo, P.J., (Sulu-Gambari and Onu J.J.C.A. concurring) the court of Appeal upheld the statement of the rule of law in Baker v. Bolton that under the common law no compensation or damages can be recovered for causing the death of a person by negligence of another person but the Court of Appeal further held that damages are recovcrable for such death under the Torts Law. However, the learned Presiding Justice found the claim in the case in hand could not succeed on the basis of the Torts Law. He stated his reasons thus:

“Counsel then submitted secondly, that the Appellants could also not succeed under this Law for a number of reasons (1) it must be based on accidental and not illegal killing (2) any action thereunder must he initiated by and in the name of the executors of the deceased vide section 4 of the Torts Law. Also vide Clerk and Lindsell on Torts (14th edition). paragraph 422 at p. 275.

In Ingall v. Moran (1944) 2 K.B. 160 it was held that an action brought by a plaintiff claiming to sue as an administrator, without his taking out letters of administration, is incompetent. There is in the present case no averment or evidence to the effect that the plaintiffs are suing as administrators nor was any letter of administration tendered. (3) Under section 4 of the Torts Law aforementioned the claim or pleadings must aver that the action is brought “for the benefit of” the dependants therein set out. There was in fact no averment to this effect. Nor can reliance be placed on the proviso thereto, without evidence to show why and if not action was taken in court by an administrator within six months of the death of the deceased. Furthermore the full particulars of dependency of the plaintiffs were not set out in the pleadings of the plaintiffs, as required by law. Also vide Bullen and Leake and Jacobs Precedents of Pleadings 12th edition p. 433: Okafor v. Nnodi (1963) 1 A.N.LR. 373.

Finally, he submitted that the fact that the Appellants rely on the maxim “ubi ius ibi remedium” shows that they never adverted their minds to the Torts Law and never based their claim on it.

In so far as the claim before the trial court purports to be based on the Torts Law, its many provisions have not been complied with as ably submitted by respondent’s counsel, and it cannot therefore succeed on that basis. The claim and the pleadings, for the reasons hereinbefore set out (which I do not intend to repeat) arc incurably defective.” (Italics in this para. mine).

On the issue of damages, the Court of Appeal found no reasons to disturb the findings on damages made by the trial court. In the result the Court dismissed the appeal.

The Appellants were again dissatisfied with the decision of the Court of Appeal. They have appealed against the decision to this Court. Because of the constitutional issue involved in the appeal and its great public importance, the Court invited all the Attorneys-General in the Federation to file briefs and appear before the Court and address it as amici curiae. In all the Attorney-General of the Federation at1d 12 State Attorneys-General responded to the invitation.

Three issues were in the main canvassed at the hearing of the appeal. Firstly whether, having exercised his right of appeal under section 220(10)(e) of the Constitution, the deprivation by his premature execution of the deceased’s fundamental right to life under section 30(1) of the Constitution until his appeal was heard and determined is actionable under the Torts Law.

Secondly whether, if the answer to the first issue is in the affirmative, the Appellants’ pleadings aver sufficient facts to satisfy the requirements of the said law. Thirdly if the Appellants’ claim cannot be accommodated by the Torts Law because of the formal defect or insufficiency of pleadings, whether, having regard to the concurrent findings of fact by the trial court and the Court of Appeal that the execution was wrongful, the Appellants are entitled to recover damages on the maxim “Ubi Jus Ibi Remedium” the rule of law in Baker v. Bolton notwithstanding. The Latin maxim literally means “where there is a right, there is a remedy” but it may also be translated as meaning “there is no wrong without a remedy.”

As regards the constitutional aspect of the first issue, there is no dispute that the execution of the deceased was unconstitutional. There is a consensus that it was so. The controversy revolves on the question of semantics as to whether the unconstitutionality of the execution was “illegal” or “wrongful.” On the one hand it has been vigorously argued that the execution was only illegal but not wrongful and on account of that fine distinction there is no cause of action under the Torts Law. It has been contended on the other hand that the words “illegal” and “wrongful” are synonymous and for that reason the Appellants are entitled to claim for damages under the Torts Law whether the execution was illegal or wrongful.

Before dealing with the submissions of learned counsel and amici curiae on the contest, it is appropriate at this stage to state the law relevant to the issue. Section 30(1) of the Constitution provides:

“30(1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.”

I have already shown that the deceased was executed in purported execution of the sentence of the High Court in respect of the criminal offence of armed robbery of which he had been found guilty.

Now, section 220(1)(e) of the Constitution confers a right of appeal on the deceased thus:

“220(1) An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases –

(e) decisions in any criminal proceedings in which the High Court has imposed a sentence of death.”

Part 40 of the Criminal Procedure Act prescribes the procedure for carrying out a sentence of death. Section 368(1) of the Act reads:

“368(1) Where sentence of death has been passed such sentence shall only be carried out in accordance with the provisions of this Part.”

In the case of a sentence of death for an offence in respect of which the power of pardon is vested in the President, sections 371 E & F provide: “371 E(1) Where a person –

(a) has been sentenced to death; and

(b) has exercised his legal rights of appeal against the conviction and sentence and the conviction and sentence have not been quashed or the sentence has not been reduced, or has failed to exercise his legal rights of appeal or having filed an application for leave to appeal or an appeal, has failed to perfect or prosecute such application or appeal within the time prescribed by law, the Minister shall, after considering the report made under section 371D and after obtaining the advice of the Advisory Council on the Prerogative of Mercy decide whether or not to recommend that the sentence should he commuted to imprisonment for life, or that the sentence should be commuted to any specific period, or that the offender should be otherwise pardoned or reprieved. ”

“371 If the Minister decides not to recommend that the sentence should be commuted or that the offender should be otherwise pardoned or reprieved he shall cause the Sheriff to he informed and the sentence of death pronounced upon the offender shall be carried into effect in accordance with and subject to the provisions of this part and the Sheriff shall thereupon make arrangements accordingly pursuant to the sentence of death pronounced upon the offender.”

Sections 295 and 296 of the Criminal Procedure Codes of Northern States make similar provisions for sentences of death in respect of which the power of pardon is vested in the Military Governors. Thus sections 295 and 296 of the Kano State Code state:

“295. When any convicted person

(a) has been sentenced to death by the High Court; and

(b) (i) has not appealed within the time prescribed by law; or

(ii) has unsuccessfully appealed against the conviction or

(iii) having filed a notice of appeal has failed to prosecute such appeal, the Commissioner after carrying out the functions imposed on him by the Constitution of Kano State or any legislation amending or replacing the same, shall decide whether or not he should recommend to the Military Governor that he should exercise any power conferred on the Military Governor by section 46 of the Constitution of Kano State,

296. If the Commissioner decides not to recommend to the Military Governor that he should exercise a power referred to in section 295 in respect of a convicted person the sentence of death pronounced upon the convicted person shall he carried into effect in accordance with the provisions of this chapter.”

In the same vein, section 22 of the Court of Appeal Act 1976 provides:

“22. (1) Where any law in force in the State from which an appeal is brought has suspended the operation of any order made on conviction by the court before which the appellant was convicted. for the payment of compensation or of any of the expenses of the prosecution, or for the imprisonment or other punishment imposed on the person convicted or for the restoration of any property to any person. and the re-vesting in case of any such conviction in the original owner or his personal representative of the property in stolen goods, such order shall continue to he suspended until the determination of the appeal if notice of appeal, or notice of application for leave to appeal is given within thirty days of the date of the conviction.”

It is clear from the aforestated constitutional and statutory provisions, where a convict sentenced to death in respect of which the power of pardon is exercisable by the President or the Military Governors of Northern States has appealed against his conviction, the sentence should not be carried out until the appeal has been determined. Accordingly_ the execution of such a convict before the determination of his appeal would he unconstitutional and unlawful.

Reverting to the Criminal Procedure Law, Cap. 31 the Laws of Oyo State of Nigeria 1978, the Law makes no express Provision for stay of execution of a sentence of death pending appeal. Sections 390(3) and 391 of the Law prescribe that after the sentence of death has been pronounced:

“(3) The presiding Judge shall forward to the State Commissioner designated for such purpose a further copy of the finding and sentence and of his notes of evidence together with a copy of the report made by him. at the same time as such documents are forwarded to the Governor.

371. The Governor shall. upon the recommendation of the State Commissioner designated for such purpose. order –

(a) that the law shall take its course, or

(b) that the sentence be commuted 10 imprisonment for life.

or

(c) that the sentence be commuted for such specific period as he may consider just.”

Sections 372 to 375 inclusive then proceed to provide that if the Governor decides that the law shall take its course he shall send a copy of his order under his hand stating the place and time of the execution to the Sheriff who should have effect given thereto. The Law is silent on the stay of execution pending the determination of any appeal against the conviction.

Now, the question is: because there is no statutory provision for stay of execution pending the determination of an appeal, could the Governor of Oyo State lawfully order the execution of a convict who had his appeal still pending in the Court of Appeal To put the question in other words: should a right of stay of execution pending the determination of an appeal be inferred from the constitutional rights of appeal granted to a convict under sections 220(1)(e) and 213(1)(d) of the Constitution and also from the appellate jurisdictions conferred on the Court of Appeal and this Court by sections 219 and 213(1) of the Constitution respectively

There is no doubt that the Criminal Procedure Law of Oyo State is an existing law within the purview of section 274(4)(iii)(h) of the Constitution and as such must have effect with such modifications as may be necessary to bring it into conformity with the provisions of the Constitution by virtue of section 274(1) thereof. Such modifications may be by legislative action or judicial interpretation: Attorney-General of Ogun State v. Attorney-General of the Federation (1982) 1-2 S.C. 13, Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNLR 290 and Mandara v. Attorney-General of the Federation (1984) 1 SCNLR 332.

It seems to me that to answer the first question in the affirmative would stultify the constitutional provisions relating to appeals and make them otiose. Consequently, such a construction would by virtue of section 1(3) of the Constitution, which states:

“(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

render the provisions of sections 371 to 475 of the Oyo Criminal Procedure Law null and void. On this account the said sections of the Law must be accorded such construction as will give effect to the enjoyment of the constitutional rights of appeal by a convict and to the exercise of appellate jurisdictions of the Court of Appeal and of this Court.

For the foregoing reasons although there is no statutory provision for stay of execution of a sentence of death pending the determination of an appeal in Oyo State. I hold that stay of execution must be inferred from the provisions of the constitutional rights of appeal of the convict and the appellate jurisdictions of the Court of Appeal and of this Court under sections 219, 220 and 213 of the Constitution. The Governor of Oyo State cannot lawfully order the execution of a convict who has appealed against his conviction and his appeal has not been finally determined. His execution can only be lawfully carried out after his appeal has been determined and the Appeal Court has confirmed the sentence. A premature order for the execution of the convict and his execution in compliance with the order would be unconstitutional and unlawful. Accordingly, I hold that the execution of the deceased in the case on hand is unconstitutional.

It remains to consider whether the unconstitutional execution of the deceased is actionable under the Torts Law. After he had departed from his original stance, counsel for the Appellants and the amici curiae who supported the Appellants’ case argued that the execution is so actionable. The Attorney-General of Oyo State and the amici curiae that supported him contended otherwise.

In order to appreciate fully the submissions of learned counsel and the amici curiae, it is necessary to set out the relevant provisions of the Torts Law. They are sections 3, 4, 5(a) and 2. The sections provide:

“3 Whensoever the death of a person shall be caused by the fault of any other person and the fault is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof. then and in every such case the person who would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony:

Provided always that not more than one action shall lie for and in respect of the same subject matter of complaint and that every such action shall be commenced within three years after the death of such deceased person.

4. Every such action as is maintainable by virtue of this Part shall be for the benefit of the wife or wives, husband, parent and child of the person whose death shall have been so caused and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may give such damages as it thinks proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the court by its judgment shall find and direct:

Provided that if there shall he no executor or administrator of the person deceased or that there being such executor or administrator no such action as aforesaid shall within six calendar months after the death of such deceased person have been brought by and in the name of his or her executor or administrator then and in every such case such action may be brought by and in the name or names of all or any of the persons for whose benefit such action would have been if it had been brought by and in the name of such executor or administrator; and every action so to be brought shall be for the benefit of the same person or persons and shall be subject to the same regulations and procedure, as nearly as may be, as if it were brought by and in the name of such executor or administrator.

5. For the purposes of this Part-

(a) the word “parent” shall include father and mother, and grandfather and grandmother, and step-father and stepmother, and the word “child” shall include son and daughter, and grandson and grand-daughter and step-son and step-daughter. ”

Under section 2:

“fault” means negligence, breach of statutory duty, default or other act or omission which gives rise to a liability in tort or would apart from part 3 of this Law give rise to a defence of contributory negligence. ”

The submissions of counsel may now be considered. Supporting the Appellants’ case, the learned amici (to wit, the Attorneys-General of Anambra, Imo, Kaduna, Kwara and Niger States and the DPP and Acting DDPP of Benue and Kano States respectively) submitted that the Court of Appeal had erred in law in holding that the Appellant’s claim did not disclose any cause of action and also in holding that in so far as the claim was purported to have been based on the Torts law, the pleadings were incurably defective as they did not comply with many provisions of the said law. The learned amici argued that although the pleadings were badly formulated and left much to be desired, nevertheless, sufficient facts to bring the claim within the provisions of the Law were pleaded therein. Referring to the definition of “fault” under section 2 of the law, the Learned amici submitted that whether the unconstitutional execution of the deceased may be regarded as “illegal”, “unlawful” or “wrongful” is a distinction without a difference as the pleadings and the evidence show clearly the death was caused by the Respondent’s “fault” within the meaning of section 2. Furthermore, they drew our attention to the provisions of Sections 3 and 4 of the Law wherein are set out the several elements required to be pleaded and proved in a claim under the Law. Learned amici contended that by their pleadings and evidence the Appellants had substantially complied with the essential elements of the law despite the paucity of their pleadings. They urged us to allow the appeal by doing substantial justice devoid of any legal technicality in the mere form of pleadings.

Responding, the learned Attorney-General of Oyo State, while conceding the execution was caused by administrative error and was unlawful and relying on Ingall v. Moran (1944) 1 K.B. 160 and several other cases, argued that the Torts Law does not avail the Appellants because (1) the claim was not based on accidental killing as envisaged by section 2 of the law but on illegal killing which is outside the provisions of the Law; (2) the action was not brought by the administrator or executor of the deceased in accordance with the provision of section 4 of the Law and (3) full particulars of the dependency of the Appellants were not set out in their pleadings.

The team of the learned amici that championed the Respondent’s case was led hy the learned Attorney-General of the Federation supported by the Attorneys-General of Bendel, Rivers and Cross-Rivers States and the Solicitor-General and Deputy Solicitor-General of Plateau and Ondo States respectively.

After having reiterated the constitutional aspects of the appeal and the rule in Baker v. Bolton relating to an illegal killing, the learned Attorney-General of the Federation submitted that the Court of Appeal was perfectly right in holding that in so far as the claim purported to be based on the Torts Law, its many provisions had not been complied with and the action could not therefore succeed on that basis. He pointed out the inelegance of the writ, which he described as a writ of summons with an ugly face, and the inadequacy of the Statement of Claim. He contended that the execution was wrongful but not illegal and on that premise he urged us to hold that not every wrongful act is actionable. The “wrong” must be known to the Law.

In associating themselves with the submission of the Attorney-General of the Federation, the learned amici expressed divergent views. The Attorney-General of the Cross River State contended that the execution of the deceased is not actionable under the Torts Law on the ground that the death was not caused by accident but was caused by illegality which is punishable by sanction under criminal law and is not remediable by civil action in tort. According to the Solicitor-General of Plateau State, the matter is not justiciable at all. However, the Attorneys-General of Bendel and Rivers State expressed contrary views. Both submitted that the matter is actionable under the Torts Law but gave different reasons why the claim ought to fail. According to the Attorney-General of Bendel State, the claim ought to fail be- cause of the insufficiency of the pleadings and the failure of the Appellants to prove negligence while according to the Attorney-General of the Rivers State, because the claim was not brought by and in the name of the executor or administrator of the deceased and the Appellants did not prove “fault” against the Respondent.

I think the dispute on the semantic question as to whether the execution of the deceased in the circumstances of the case is “illegal’ or “wrongful” may be easily resolved. I have already shown that the trial Judge found the execution to be “wrongful.” In my view, he was perfectly right. The meaning of the word “wrongful” in law was stated by Bowen, L.J. in Mogul v. McGregor 23 Q.B.D. 598 at pp. 612 to 613 thus:

“The term “wrongful” imports in its turn the infringement of some right. The ambiguous proposition to which we were invited by the plaintiffs’ Counsel still, therefore, leaves unsolved the question of what, as between the plaintiffs and defendants. Are the rights of trade. For the purpose of clearness, I desire, as far as possible, to avoid terms in their popular use so slippery, and to translate them into less fallacious language wherever possible.

The English law, which in its earlier stages began with but an imperfect line of demarcation between torts and breaches of contract, presents us with no scientific analysis of the degree to which the intent to harm, or, in the language of the civil law, the animus vicino nocendi, may enter into or affect the conception of a personal wrong; see Chasemore v. Richards. (1) All personal wrong means the infringement of some personal right,”It is essential to an action in tort,” say the Privy Council in Rogers v. Rajendro Dutt (2), “that the act complained of should under the circumstances be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will however directly, do a man harm in his interests, is not enough.”

I have earlier on held that the execution was an infringement of the deceased’s constitutional right to life and the right to prosecute his appeal. Accordingly, the execution was wrongful.

Jowitt’s Dictionary of English Law defines “illegal” as follows:

“Illegal. An act is illegal when it is one which the law directly forbids, as to commit a murder, or obstruct a highway. The illegality of an act is not only of importance as subjecting the doer to the penalties imposed for disobedience of the law, but also because the act is not recognised by law as capable of creating any right, except as a remedy for any injury caused by it.

Illegal is also used in the same sense as unlawful (q.v.).”

The Constitution forbids the execution of a convict who has appealed and his appeal has not been determined. The execution of the deceased was therefore illegal. Consequently, I hold the execution to he not only wrongful hut also illegal.

It seems to me the apparent distinction in the meanings of the words “illegal” and “wrongful” is not significant in so far as the Torts Law is concerned. This is because by virtue of the express provisions of section 3 of the Law any death caused is actionable under the Law. The section, inter alia, states the person causing the death shall he liable in an action for damages. “notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony.” (Italics mine). Thus not only death caused by accident or negligence but also death caused by murder or manslaughter is actionable under the Torts Law provided the other requirements of the law have been satisfied. The Court of Appeal did not advert its mind to the “notwithstanding clause” of section 3 of the law and thereby erred in law in holding that a claim under the Torts Law is only maintainable for accidental death. It may he pointed out that the basis of a claim under section 3 of the Torts Law is the survival of a right of action. The section states:

“Whensoever the death of a person shall be caused by the fault of any other person and the fault is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then in every such case the person who would have been liable if death had not ensued shall be liable in an action for damages…”

It follows therefore that the Appellants were entitled to sue if the deceased would have a right of action against the Respondent if he had not died.

To reiterate, the evidence shows the deceased was executed by a firing squad. Since he died as the result it must be inferred that the squad caused him grievous bodily harm because, in my view, such harm would be the natural or probable consequence of shooting him to death by the firing squad. So if the deceased had survived the bullets of the firing squad he would have had a right of action for damages against the Oyo State, the Respondent, which caused the squad to inflict the harm on him. The Respondent is vicariously liable for the harm done to him by the squad. The deceased’s right of action survives him by virtue of section 3 and the Appellants are entitled to maintain it.

Accordingly, I hold that the premature execution of the deceased is actionable under the Torts law.

Apart from overlooking the “notwithstanding clause” of section 3 of the Torts Law, the Court of Appeal also erred in law by relying on the procedural rule of law in England stated in Clark and Lindsell on Torts. 14th Ed. p.275 para. 422 and Ingall v. Moran (Supra), which requires the action to be brought by and in the name of the executor or administrator as one of the reasons for dismissing the Appellants’ claim. It is pertinent to state that the statement of the law in England by Clark and Lindsell and the decision in Ingall v. Moran were based on the interpretation of the provisions of section 2 of the Fatal Accidents Act 1846, which says:

“Every such action shall be brought by and in the name of the executor or administrator of the person deceased.”

The section did not permit any other person to sue.

The position is different under the Torts Law. Where there is no executor or administrator or, if there is one or the other, neither has instituted an action after six months of the death, then the dependants of the deceased may bring the action in their name by virtue of the proviso to section 4 of the Law. There is no evidence the deceased had an executor or administrator and the record of appeal shows the dependants filed the claim on 17 June 1982 which was more than six months after the execution. I have earlier set out the provisions of the proviso to section 4. There is no such proviso in the English Act. For this reason the Court of Appeal fell into another error of law by putting into section 4 of the Torts Law the interpretation that had been placed on section 2 of the English Act when the provisions of the two sections are not identical nor in pari materia. The Torts Law permits the dependants to sue while the Act does not.

The decision of the Court in Okafor v. Nwodi (1963) 1 All N.L.R. 373 was another factor that influenced the Court of Appeal to conclude that the Appellants’ pleadings were insufficient. The decision in Okafor’s case was based on the provision of section 6 of the Fatal Accidents Law, Cap. 43, Laws of Northern Nigeria 1958, which provides:

“In every action brought under the provisions of this Law the plaintiff shall give to the Court full particulars of the person or persons for whom and on whose behalf such action is brought and of the nature of the claim in respect of which damages are sought to be recovered.”

The Statement of Claim in that case did not name the persons on whose behalf the suit was brought and did not give the particulars of their dependency. This Court held that the Statement of Claim did not comply with the mandatory provisions of the section, set aside the judgment of the lower court and ordered a retrial. It may be observed that the Torts Law of Oyo State makes no provisions similar or identical to the provisions of section 5 of the Northern States law. Furthermore, in the pleadings of the case on appeal the names of the persons on whose behalves the action was brought were stated in the Appellants’ pleadings. Consequently, the Court of Appeal made another error of law by applying the decision in Okafor case to the Torts Law.

I now proceed to examine whether the Appellants’ pleadings satisfied the requirements of the Torts Law. In this respect it is germane to the issue to observe that on the authority of the decision of this Court in Falobi v. Falobi (1976) 1 N.M.L.R. 169 at 177 the remedy under the Law cannot be denied to the Appellants on account of the mere fact that they did not base their claim on the Law but on the doctrine of “Ubi Jus Ibi Remedium.” Delivering the judgment of the Court in that case Fatayi- Williams, J.S.C., as he was then, stated at p. 177:

“The next question is this. Can a court make an order under the Infants law notwithstanding the fact that the application to it was made under another statute which is clearly inapplicable In our view, if a relief or remedy is provided for by any written law (or by the common law or in equity for that matter), that relief or remedy, if properly claimed by the party seeking it, cannot be denied to the applicant simply because he has applied for it under the wrong law. To do so would be patently unjust. Moreover, the objection to the application of the provisions of section 12 of the Infants Law in the particular circumstances of the case in hand, while it appears to be correct, is of a purely technical nature, and the Western State Court of Appeal should not have refused to do substantial justice between the parties upon a pure technicality. (See G.B. Ollivant v. Vanderpuye (1935) 2 W.A.C.A. 369, 370).”

I think, in order to have the assessment of the pleadings fully appreciated, it is necessary to set out the relevant paragraphs of the Statement of Claim and the Reply to the Statement of Defence. The former reads:

“Statement of Claim

1. The agents of Oyo State Government as represented by the defendant its law officer caused the illegal killing of Nasiru Bello, the plaintiff’s bread-winner.
2. The said Nasiru Bello was convicted of armed robbery by Mr. Justice Apara sitting at the Ibadan High Court on 30/10/80.
3. The said Nasiru Bello filed his appeal against Justice Apara’s said decision on 12/11/80, i.e. within the time permitted by law, to the Federal Court of Appeal.
4. Records of appeal were received by the Attorney-General’s Chambers, Ministry of Justice, Oyo State, Ibadan, in April 1981.
5. Through recklessness on the part of the defendant and/or his agents in the Ministry of Justice, the defendant recommended to His Excellency. Chief Bola Ige, the Governor of Oyo State, the execution of the unfortunate Nasiru Bello.
6. The intended public execution of the said Nasiru Bello was announced in the evening of 4/9/81 by the Radio OYO.
7. The harharic execution took place on 5/9/81 despite Nasiru Bello’s subsisting valid appeal.
8. The plaintiffs plead and shall rely on the birth certificate of 2nd – 5th plaintiffs who are the children of the executed Nasiru Bello.
9. The plaintiffs are the relations and dependants of the said Nasiru Bello.
10. Wherefore the plaintiffs claim against the defendant N100,000.00 as damages for the illegal loss of their bread winner. The plaintiffs rely on the doctrine “where there is a right, there is a remedy.”

The relevant paragraphs of the Reply to the Statement of Claim state:

“Reply to Statement of Defence

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.
3. The defendant is sued not only because of the role of the Ministry of Justice in the reckless termination of the right of appeal of the plaintiffs’ bread-winner. Nasiru Bello, and the concomitant loss of his life, but also as the representative of Oyo State Government in litigation matters.
4. The plaintiffs will contend that the provisions of Section 2 of the Public Officers Protection Law Cap. 10(1 Laws of Western Nigeria IY5 (ii) The injury to the plaintiffs is continuous and has not ceased.
5. The Hon. Attorney-General for Oyo State, the Hon. Mr. Justice Adewale Thompson offered N5,000 whereas Counsel for the plaintiffs, Mr. J.O. Ijaodola, insisted on N25.000.00 on the ground that the plaintiffs have not only lost financial benefits from Nasiru Bello hut have also lost the image and good name of their family permanently which cannot be quantified in monetary terms.
6. The unfortunate Nasiru Bello was maintaining the plaintiffs at t he rate of over N200 per month (i. e. over N2,4000 per annum).
7. Irreparable injury has been done to the plaintiffs by the premature execution of their he loved Nasiru Bello as the good name of the family is soiled for ever as the possibility of salvaging it was destroyed by the execution.
8. The said premature execution of Nasiru Bello not only terminated the subsisting appeal to the Federal Court of Appeal but equally destroyed the possibility of a further appeal to the Supreme Court, if need be. ”

Now, what matters are required to be pleaded and proved in a claim under the Torts Law On the procedural aspect, sections 4 and 5(a) of the law require the action to be brought for the benefit of the wife, parents and children of the deceased, inter alia, by and in the name or names of all or any of the wife, parents or the children. I have already shown earlier in this judgment that the pleadings and the evidence have satisfied the requirements of the sections in that among the plaintiffs include the wife, father, mother and children of the deceased.

Sections 2 and 3 of the Law set out the ingredients giving rise to liability for an action under the Law, which ought to be pleaded and proved. The matters are as follows:

(1) that the deceased died;

(2) that the Respondent caused the death;

(3) that the Respondent was, inter alia, negligent or in breach of statutory duty;

(4) that the deceased suffered injury which would have entitled him to sue for damages if he had not died; and

(5) facts from which damages may be assessed.

It seems to me that upon a proper perusal of the Appellants pleadings within the spirit of the observation of Eso, JSC., in the State v. Gwonto & 4 Others (1983) 1 SCNLR 142 at 160 wherein he stated:

“The Court has for some time now laid down as a guiding principle that it is more interested in substance than in mere form. Justice can only be done if the substance at the matter is examined. Reliance on technicalities leads to injustice,”

the pleadings have substantially averred the essential facts for a claim under the law. Paragraphs 1 and 7 of the Statement of Claim and paragraph 1 of the F Reply to the Statement of Defence averred that the deceased had died and the death had been caused by the Respondent. Several paragraphs alleged that the Respondent was reckless in causing the death. “Recklessness” being a higher degree of negligence, see Andrews v. Director of Public Prosecutions (1937) A.C. 376 at 583, it follows that negligence was sufficiently pleaded. Paragraph 2 of the Reply pleaded breach of the constitutional duty of the Respondent not to execute the deceased until his appeal had been determined. The “illegal killing” being the wrongful injury for which the deceased could have sued for damages was also pleaded. Paragraph 11 of the Reply though meagrely averred the extent of the Appellants’ dependency to the deceased.

For the reasons stated above, I am satisfied the Court of Appeal made errors of law and facts in its finding that the Appellants pleadings did not comply with the provisions of Torts Law.

Finally, the concurrent finding of fact by the trial court and the Court of Appeal that the Appellants did not prove negligence may be noted. Although, having regard to the salient fact that the Respondent knew or ought to have known that the deceased had appealed when the Respondent caused his execution, I have some reservations on that finding of fact. It would be unconstitutional to interfere with the finding because there is no appeal against it. Nevertheless, there is incontrovertible evidence of a breach of constitutional duty, to wit the duty to preserve the life of the deceased pending the determination of his appeal, by the Respondent. In my view such a breach of duty falls within the meaning of “fault” under section 2 of the Law and I so hold.

From the foregoing, it is apparent that had the Court of Appeal given proper consideration to the Appellants’ claim it ought to have found in their favour. I find the Respondent liable.

There is no appeal of cross-appeal against the quantum of damages awarded by the trial court and confirmed by the Court of Appeal. On this ace count this Court cannot interfere with the award. However, in obiter dictum it may be indicated that the formula applied by the Court in assessing damages under the provisions of statutes similar to the Torts Law is that laid down in Davies v. Powell D.A. Collieries Ltd. (1942) A.C. 601 at 607 and applied in Ibolukwu v. Onoharigho (1964) 1 All N. L. R. 215. The formula is based on the expectation of the working life of a deceased scaled down to a number of years purchase and then multiplied by the amount in cash the deceased spent annually on his dependants during his life time. It is obvious that such damages would be nil in respect of a condemned prisoner who has no reasonable chance of success in his appeal. It is only when he has a reasonable chance of succeeding in his appeal that the formula may be properly invoked. In my view, for the correct assessment of damages in the case in hand the court needed to determine whether or not the deceased’s appeal had a reasonable chance of success.

Having found the Respondent liable under the Torts Law, the question whether the claim would succeed on the doctrine of “Ubi Jus Ibi Remedium” has become academic and I would refrain from considering it. I would only express my appreciation for the commendable effort made by the learned amici in research and industry to assist the Court for the determination of this very important question of law. The effort of the learned amici was not in vain. The Court has been immensely benefited by it.

In conclusion, I find the Respondent liable for damages in the sum of N7,400 as assessed by the trial Judge. Accordingly, the appeal shall be and is hereby allowed. The judgments of the trial Court and of the Court of Appeal dismissing the Appellants’ claim are set aside and in their stead, judgment shall be entered for the Appellants in the sum of N7,400 to be shared among the parents, wife and children of the deceased in the shares apportioned by the trial judge as set out earlier in this judgment.

The Appellants are entitled to N300 costs in this Court.

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SC.157/1983