Chief Dr. (Mrs.) Olufunmilayo Ransome-kuti & Ors. V. The Attorney-general Of The Federation & Ors (1985)

ESO, J.S.C.

Because of the importance of this case, both in regard to the legal issues involved and the publicity that has attached to it, I will set out the facts of, the issues involved in and the legal submissions thereupon in the case in some considerable detail. I will start with the events that led to the litigation.

The Incident Previous to Litigation:

On 18th February, 1977, at about mid-day, one Segun Ademola, an employee of the 2nd Plaintiff, Fela Anikulapo Kuti, travelled in a landrover belonging to the 2nd Plaintiff, and driven by one Segun Adams along Agege Motor Road. At a point on the road, precisely at Ojuelegba, a military traffic policeman stopped these two people and questioned them as to why their vehicle failed to carry a plate number in the front.

The two people told the military policeman that the vehicle had a plate number at the back, but the one which should have been in front was inside the vehicle, near the glass wind-shield. The soldier thereupon demanded that they should surrender the key of the vehicle to him.

This they refused to do, and the soldier in consequence blew his whistle to attract the attention of other military men. Segun Ademola instructed Segun Adams to drive the vehicle in reverse into 14A Agege Motor Road, the property belonging to the Plaintiffs, even though by that time, the soldier had sat on the bonnet of that vehicle to prevent its movement. In addition, there was a traffic hold up around the vehicle, and in no time, the vehicle was virtually besieged by soldiers.

Segun Ademola took another step. He decided to make a report to his boss, the 2nd Plaintiff. What has not been clear from the evidence was whether Segun Adams, whom Segun Ademola sent to make the report, returned to the scene.

However, what follows is to be gathered from the evidence in court as put together by the learned trial Judge. The soldiers got hold of Segun Ademola and beat him to pulp. One Balogun, a driver helped to convey him to 14A Agege Motor Road where he remained quite helpless. The 2nd Plaintiff got the narration from Segun Ademola and then ordered that Segun Ademola be taken to the hospital.

Meanwhile, soldiers had massed outside the gate of 14A Agege Motor Road. The soldiers would like to enter the house to arrest Segun Ademola but 2nd Plaintiff would not yield. He demanded their warrant. More Soldiers arrived. The evidence talked of about 500 of them and they carried guns. The 2nd Plaintiff retired to the balcony of the house. A Mercedes Benz car arrived and the 5th defendant, Major Daudu was alleged to have spoken to the occupant of the car. The car then left and immediately after that, the soldiers rained stones, bottles and other misiles towards 14A Agege Motor Road.

It was just after this that the 3rd Plaintiff, Dr. Beko Ransome-Kuti came in. He went to join the 2nd Plaintiff upstairs. Then, more soldiers arrived, And the evidence was that they came from the nearby Abalti Barracks, They carried arms and warned people, by a display of a signpost, against the people risking being shot. 2nd Plaintiff remained on the balcony which had now been barricaded with chairs and tables. Then, for a while the missile attack stopped but the generator outside and the van on which it stood were already on fire. Again, the evidence was that it was a soldier, the 7th defendant, Corporal Ago, who poured petrol on the generator while one Lawal, another soldier struck the match.

Now, the soldiers advanced to the gate, cut down the wire fences and moved into the compound of the house, There was a stampede, with the soldiers throwing out everybody in the house except 1st Plaintiff Dr. (Mrs.) Olufunmilayo Ransome-Kuti and the third, her son, Dr. Beko Ransome-Kuti. But the soldiers did not stop there. They moved into the main house, set fire to it and razed it to the ground. That was not all! There was looting, beating up of the occupants of the house and the women therein assaulted. And, as if that was not enough the inmates were marched into Army barracks. The two brothers, Fela and Beko, also with them. The injuries these people suffered are better described in the evidence of Mr. Amechi Obiora, a Consultant Surgeon in Lagos University Teaching Hospital who treated them. He said there were 52 patients, 5 of whom were admitted into the Hospital and the injuries they suffered ranged from laceration, burns, head injuries, minor bruises and even breaking of bones, Both the 1st and the 2nd Plaintiffs were among those admitted into the hospital.

These then were the facts. They were no doubt grim and upon these facts the plaintiffs brought a suit.

The Suit:

claiming “N25,000,000.00 (Twenty-five Million Naira) against the Defendants jointly and severally being damages suffered by the plaintiffs when the defendants by their servants and or agents on Friday 18th day of February 1977, willfully and maliciously set fire to the plaintiffs’ 2-storey Building House and Bungalow and appurtenances situate at No. 14A Agege Motor Road, Yaba, Lagos together with other plaintiffs’ personal effects, valuable properties, cash, professional and or business equipments, including motor vehicles and buses, all of which were totally destroyed by the said fire set to them by the defendants: And for Assault and Battery suffered by the plaintiffs.”

It is to be noted at this stage that the claim was severally and jointly. Most of the paragraphs of the Statement of Claim are also relevant, especially as to the nature of the action, which, indeed is very important, and which will later be discussed in this judgment. These are paragraphs 4 – 14. “4. The first, second, third and fourth defendants, are being sued in represent alive capacities in their official positions; the fourth being as Garrison Commandant of Abalti Barracks, Yaba, Lagos.

5. The first and second plaintiffs lived and resided and were the occupants of a 2-storey house on a large Plot of land at No. 14A, Agege Motor Road, Yaba, Lagos, which said house and building contained all their belongings, jewelries, personal effects and professional instruments as well as the original of the 2nd plaintiff’s musical recordings, films and film sound tracks, their cars and other vehicles.
6. The 3rd plaintiff who is a medical practitioner occupied a five room bungalow on the same plot of land at No. 14A Agege Motor Road, Yaba. Lagos for the practice and maintenance of his medical profession and which bungalow was furnished and equipped with expensive and sophisticated medical equipments and instruments for a high quality service to his many patients.
7. The 4th plaintiff also used the said house and address for its corporate business as well as for storage of its properties such as original of musical recordings, artistes’ costumes, unpublished playing records, motor cars, buses, vans and other valuable company’s properties.
8. In the afternoon of Friday the 18th of February, 1977, the 4th and 5th Defendants and others unknown caused some men and officers of the Nigerian Army numbering between 500 and 1000 soldiers to surround the aforesaid address at No. 14A Agege Motor Road, Yaba, Lagos and the whole neighbourhood.
9. The said men of the army or soldiers (as they were) arrived at the G aforesaid scene or address carrying fully-loaded guns and other weapons. At first, they attacked the plaintiffs and others with misiles and heavy stones breaking doors, windows, fences of the said building and bungalow and other properties as well as assaulting and causing grievous bodily harm to the plaintiffs.
10. The 4th, 5th, 6th, 7th and 8th defendants either by themselves and or by their servants or agents as soldiers also unlawfully and maliciously burst into the said house and bungalow wilfully setting fire to the whole house and bungalow by pouring highly inflammable substance on the plaintiffs’ electric generator and setting fire thereon which fire quickly and inevitably spread to the entire house and bungalow and the whole premises.
11. The plaintiffs aver that fire-fighting personnel that is to say men of the Fire Brigade Service and others who raced to the scene to try and put off the fire, thereby saving or reducing the damage and the loss suffered by the plaintiffs were prevented and driven away by the aforesaid defendants.
12. The fire which raged unabated completely destroyed a 2 – storey building, the said bungalow and premises together with all their contents, consisting of jewelleries, personal effects, furniture, professional instruments and equipments, original of master discs recordings, film sound tracks and all other articles and properties mentioned in paragraphs 4, 5 and 6 supra together with a motor car of the 3rd plaintiff as well.
13. The defendants at the same time and place as aforesaid either by themselves and or by their servants and agents maliciously and violently battered and assaulted the plaintiffs striking them on the head, body, arms and legs with their guns and other dangerous weapons thereby cutting open and fracturing the plaintiffs’ head, arms and legs causing them grievous harm and pain, whereof the plaintiffs and 4th plaintiffs personnel had to be admitted to hospital for treatment to their injuries.
14. The plaintiffs will at the trial invoke all statutory and common law provisions and provisions of the Constitution of the Federation of Nigeria with particular reference to Chapter III and Section 19 of the said Constitution.”

(Italics of some of the words in the Statement of Claim is mine for emphasis as to the nature of the claim)

At this stage, it is to be noted that what is being complained of in paragraphs 4 – 13 of the Statement of Claim, supra, is grounded in tort, while paragraph 14 invokes “all statutes and common law provisions and provisions of the Constitution of the Federation 1963 particularly chapter III dealing with fundamental human rights and section 19 thereof’. Actually, put simply, it is a claim of vicarious liability of the Federal Military Government for the wrongful acts of its servants and agents, the soldiers.

Nature of Action:

I have just said that paragraphs 4-13 would appear to put the claim in tort while paragraph 14 invokes all other defences. Mr. Braithwaite, learned counsel for the plaintiffs in the trial Court and who is also the learned counsel for the plaintiffs/appellants in the Court of Appeal, and who is, further the learned counsel for the plaintiffs/appellants in this Court, said in his address to the trial Court:-

“On Relation of GOVERNMENT TO DEFENDANTS 4, 5, 6, 7, & 8 (the first Defendant being the Attorney-General of the Federation who is usually sued virtute officii as representing the Government, the second – the Chief of Nigerian Army, Army Headquarters who too was not present but was sued as a representative of the Government and the third Permanent Secretary Ministry of Defence, obviously sued as representing the Federal Military Government. The plaintiff withdrew the action against the 2nd and the 3rd Defendants in the course of the proceedings). The plaintiffs’ claim is grounded in the vicarious liability of the Federal Military Government for the wrongful acts of its servants and agents. The claim is also against each of the said servants or agents in their individual capacity, so well as being one for joint and several liabilities. The 1st, 2nd and 3rd defendants are sued as representatives of the Federal Military Government. The 1st defendant is under the law, authorised to prosecute and defend all actions or claims involving the Federal Government of Nigeria.”

(Italics mine)

And to make it more pointed, that the claim was in tort, learned counsel, Mr. Braithwaite, further submitted –

“I recognise however that the plaintiffs still have to prove the identity of the tort feasors as well as their respective part of role”. (Italics mine)

That was not all. He said further –

“The Attorney-General in his statement of defence has not denied their identities or station in the Nigerian Army. What I understand his pleadings to say is that rather than the tort having been committed by these fellows, it was all done by “an exasperated and an unknown person” (Italics mine)

………

“The strong evidence of the plaintiffs’ proving (1) the commission of the tort and (ii) the identities of 4th, 5th, 6th, 7th and 8th defendants and most important (iii) their respective part or role in the acts or omission comprising the tort remains before you unshaken and unchallenged.” (Italics mine for emphasis)

In discussing the right of the 2nd plaintiff, the learned counsel was still aware of the tortious action he has brought for he said –

“It is one of the rights of all of us, including the individual tort feasors themselves…”

And on damages Mr. Braithwaite declared that when he claimed the amount of N25 million as though quantifying the scale of the tort he was making an appropriate statement of fact. In concluding, learned counsel said, in his submission –

“That the pleading and the evidence show that the tort feasors were not limited only to those individual defendants/servants of the Federal Military Government”. That other soldiers as sergeants of the Federal Military Government also took part in the outrageous tort complained of…..”

Finally, when learned counsel made submissions in reply to paragraph to of the Statement of Defence, he said, unequivocally –

“My argument postulates that the whole of our claim in this case is one purely in tort and nothing else. And I hereby so submit.”

“A took cursorily or carefully at the endorsement on the Writ and the accompanying Statement of Claim shows that the claim is in fact and in substance a claim for injury to the persons of the plaintiffs and their chattels, in contradiction to claims in reality. There is no claim here for the value of the land of No. 14A Agege Motor Road.” (Italics mine)

Learned Counsel’s submission which treated the action as tortious, and which postulated that the petitions of rights did not lie in this case covered 10 pages.

I have taken the trouble to relate here the learned counsel’s own conception of his action, and the fact that he had no doubt that it was an action in tort he brought wherein the issue of vicarious liability arose because of the same learned counsel’s present attitude in this court that at no time did the Plaintiffs, who are appellants herein, seek a remedy in tort, their remedy being, according to Mr. Braithwaite only limited to its enforcement of fundamental human rights.

The learned counsel representing the Defendants was no less in doubt about the nature of the Plaintiffs’ action. His first submission in the trial court was that the plaintiffs could not sue “the Federal Military Government for this tort.” He then dealt with the law on Petitions of Right, and he concluded that a petition did not lie for tort.

And so there is no doubt, whatsoever, that both the Plaintiffs and the defendants joined issues on a tortious action and no more.

THE DECISION OF THE TRIAL COURT:

Dosunmu J., as he then was, was quick to identify the nature of the claim before him. He said while discussing the law in the matter –

“That this is an action in tort against the Government and its servants is not in doubt”

The learned Judge added, and this is of importance –

“Mr. Braithwaite for the plaintiff emphasised this”.

The learned trial Judge then examined the case, as it involved “crown proceedings”.

He held after a considerable consideration of the authorities that in this country, unlike in England, where the position had been altered by the Crown Proceedings Act, 1947, the Federal Military Government had an immunity against an action in tort based on the old common law doctrine –

“The King can do no wrong” – and no action would lie against the Attorney-General as representative of the Government for a wrong committed by its servants. He however examined the evidence as it affected the defendants personally and individually for he went on the clear legal premises that the servants of the Government are liable for wrongs committed by them in their private capacities. Each servant of the Government, he said, is a fellow servant of the other and does not stand in the relationship of employer and employee for each must bear his own burden.

The learned Judge then examined the evidence against each defendant and held that whatever role they played in the whole “sordid incident” they did not come near the allegations in the pleadings that they burst into the house and maliciously set fire to it. The Judge could not find any evidence either that they ordered any soldier to do so either. The learned Judge concluded on this point –

“It is beyond dispute, of course, that many soldiers, a witness gave the figure of 1,000, surrounded the entire buildings, hauling stones, and broken bottles. Many of them got inside the building, set fire to it as well as the generator in the compound. It was, indeed a brave attempt on the part of any witness to try to identify any particular soldier doing this or that if one accepts the description of the whole incident. It was hell let loose.”

It was after this finding of the near-impossibility, having regard to the circumstances, of the witnesses identifying the real culprit in this disgraceful and infamous episode that the learned trial judge observed, a bit sardonically

“I suppose it is the difficulty of identifying the particular soldiers who took part in the atrocities that drove the plaintiffs to want the Attorney-General responsible because they are servants or soldiers of the State….An action in tort is met by the defence that the State is not liable for wrongs committed by its servants. Should the plaintiffs suffer in vain I believe something has to be done to correct a situation where citizens of Nigeria must suffer this type of wrongful action without legal redress. In the memorandum of the Nigerian Bar Association on the Nigerian Draft Constitution 1977 it is said under the heading: RIGHT TO SUE AND ENFORCE HUMAN RIGHTS

The fundamental rights guaranteed in the Constitution are worthless unless the citizen has free and unfettered access to the law courts to enforce them. There exists in the country today, the Petitions of RIGHTS LAW under which citizens cannot institute actions in the law Court without first petitioning the Attorney-General of the STATE. Many Nigerians do not know about the existence of this LAW. It was abolished in Britain as far back as 1947. A provision should be made in the Chapter of Human Rights that any citizen whose rights are infringed shall be entitled to institute an action in the Law Courts against the Government, its agents, servants and organs, in contract, tort, or in any other respect, in the same manner as a citizen has a right to institute actions in the Courts of Law against another citizen.

We shall look up to the day when such a provision will be made either in the Constitution or any other statutes.”

Earlier in his finding the learned Judge had held that the action of the plaintiffs was not one seeking redress for the violation of fundamental rights as entrenched in the Constitution. It was not an action brought under the Constitution. In regard to paragraph 14 of the Statement of claim which called in aid “all statutory and common law provisions and provisions of the Constitution with particular reference to Chapter III and s.19 of the said Constitution” Dosunmu J. held –

“There has been nothing to demonstrate that the plaintiffs rights…….as guaranteed by the Constitution have been infringed…….s.32 of the Constitution vests the Court with special jurisdiction in relation to all these fundamental rights. But plaintiffs have not approached this court under this special jurisdiction. The section provides that any person who alleges that any of the provisions of Chapter III has been contravened in any territory in relation to him may apply to the High Court of that territory for redress. No such allegation of violation of fundamental rights has been made here apart from the general reference to fundamental rights in their pleadings And after all said and done, nowhere does the Constitution provide for the award of damages, as the plaintiffs now claim, for the infringement of the provisions in relation to fundamental rights. So that if it is the claim of the plaintiffs that there had been violations of their rights, the Constitution does not provide award of damages in the event. It is the common law that provides for the award of damages to the plaintiffs when assaulted or battered, and it is the same common law that immunizes the State or its servants from liability. The Nigerian Republican Constitution has not changed the legal position.”

COURT OF APPEAL:

The plaintiffs, dissatisfied with the judgment of the High Court, as would be expected, appealed to the Court of Appeal on nine grounds of appeal. In that court, learned counsel adopted the submissions he made to the High court when he replied to paragraph 10 of the Defendants statement of defence and part of which I have already made reference to. One should remind oneself that it was in that submission, now adopted for the Court of Appeal, that Mr. Braithwaite said that his argument postulated that the whole claim by the plaintiffs was one “purely in tort and nothing else” and that he thereby so submitted.” However in his further submission, learned counsel in that court referred to the whole of Chapter 3 of the 1963 Constitution as the basis of the case for the Plaintiffs/Appellants. Learned counsel referred to his submission in the High Court which he had adopted for the Court of Appeal that the Petitions of Right would not be for tort and there was, therefore, no means of making the Crown liable on tort.

The Court of Appeal in a considered judgment, as per Ademola J.C.A. who read the lead judgment, identified two of, what he called, red herrings –

(i) the applicability of the Petitions of Right, and

(ii) the doctrine of the Crown immunity from tortious action.

and said both learned counsel in the case in the Court of Appeal rightly submitted that the Petitions of Rights Act has no application to this matter on the authority of Williams v. The Attorney-General 11 N.L.R. 49. Then the learned Justice in Court of Appear looked at the issue from an angle different from what obtained in the High Court. He asked the question – does the question of non-liability by the Crown for tort arise Then he answered the question in the negative and continued –

“The mere fact that the Attorney-General is made a party to a suit does not mean the action is against the Head of State or Government. The Attorney-General is a Minister of State under the Constitution and can sue or be sued. The doctrine of non-liability for tort does not apply to him. It is only when the Head of State is involved in a suit can the doctrine be involved. It does not apply here.

Paragraph 4 of the Statement of Claim states that the Attorney-General and others are being sued in their representative capacities in their official position. Can an action be maintained in tort against somebody representing people, who have committed the tortious action given the nature of tort being actio personalis The answer is an emphatic NO. The action against the Attorney-General should have been the doctrine of non-liability for tort by the Crown.

As in the case of other Defendants (Respondents) against whom there was no evidence of any act of tort and thereby the claims against them were rightly dismissed, the same could be said about the Attorney-General in this suit.”

Then the learned Justice of appeal dealt with argument of learned counsel on the issue of Fundamental Rights. He said

“Mr. Braithwaite has put his argument on appeal on the issue of Fundamental Rights enshrined in the Constitution of 1963. He relied heavily on the laundoo’s case.

The Constitution of Guyana has a section dealing with Fundamental Human Rights in similar terms with Chap. 3 of the 1963 Constitution.

The short point for decision in the Jaundoo’s case is whether a person who claimed that his fundamental right is being threatened by a Government acquisition notice of his land with-out compensation for it under the law can come to court by way of originating summons. The Privy Council answered that a person who alleges that his fundamental right is threatened could come to court by any means whatsoever for a redress in as much as the rule making authority in Guyana (same in Nigeria until recently) has not prescribed any way an applicant could invoke the jurisdiction of the Guyana Court under Act 19 of the Constitution of Guyana (see Act 32 of 1963 Constitution of Federal Republic of Nigeria). The Appellants here have not invoked the jurisdiction of the High Court under Act 32 of the Constitution of 1963. They have not alleged in their writ that any of their fundamental rights have been violated. Their claim as set out is for willful and malicious damage to their properties. The claim is tort simpliciter. It is correct that in the pleadings Counsel said he would be relying on provisions of Chap. 3 of the 1963 Constitution but that is not the same thing as basing an action of the violation of the fundamental right of the Constitution and seeking redress under Act 32 of it; Aoko v. Fagbemi & Others (1961) All N.L.R.

G p.400.” (Italics mine).

Ademola, J.CA. saw the whole matter as one of form of action. There was nothing, he said, barring the making of monetary compensation to the Appellant in a claim for violation of fundamental right if such a claim and redress had been sought under the 1963 Constitution. He dismissed the appeal of the appellants. Both Nnaemeka-Agu and Uthman Muhammed JJCA concurred in the judgment.

Nnaemeka-Agu was more specific in his view on the issue of fundamental right. This is important, for no doubt the appellants have shifted position from the dual anchor of basing their remedy on both “tort” and “the fundamental right” to just fundamental right simpliciter. The learned Justice of Court of Appeal held the view-

“I agree with Mr. Braithwaite that in the interpretation of the right of a person who alleges that any of the provisions of Chapter III of the 1963 Constitution has been contravened in relation to himself to apply to the High Court of the territory for redress includes the right to claim damages. In my view the word “redress” is wide enough to include damages. But the problem raised by that aspect of the Appellants’ appeal is that Chapter III did not provide for a blanket protection of all rights but went ahead to provide for specific rights which are protected thereunder. For a plaintiff who comes to Court in reliance upon Chapter III of the 1963 Constitution to succeed, he must show that one or more of the rights guaranteed by that Constitution had been infringed or threatened with infringement. That the Appellant on the claim he brought before the Court failed to allege or prove, assuming he relied on the provisions of Chapter III of the Constitution.”

After disposing of the constitutional plank on which the appellants rested their case, Nnaemeka Agu, J.C.A. saw the case of the appellants in its nakedness for he said further –

“The case the Appellant brought to Court was based on tort. I agree with the learned Assistant Director for Litigation that the Crown Proceedings Act of 1947 is not applicable in Nigeria, moreso because of Adaptation of Laws, (Miscellaneous) Provision order L.N. 112 of 1964, and Sections 45 of the Interpretation Act 1958 and 43 of the High Court Law of Lagos State (Cap. 52). I also agree that the State cannot, in Nigeria, be sued in tort. With all respect, I would not go so far as to say that when the Attorney-General is sued, as in this case, in his official capacity as a representative of the State, that the State has not been sued. As I understand it, it has been a rule of practice of long standing that whenever an action is to be brought against the Crown (or State) the Attorney-General is sued as representing the State instead.

I would therefore also dismiss the appeal and it is hereby dismissed. I would make no order as to Costs.”

THE SUPREME COURT:

The Appellants were dissatisfied with the dismissal of their appeal and they have therefore appealed to this Court on two grounds of appeal which are better set out verbatim –

“GROUNDS OF APPEAL:

1. Their Lordships erred in law by holding that the appellants’ claim failed due to the use of “a wrong form of action” when they had already held correctly, that “any person who alleges that his rights have been infringed in any way could invoke the jurisdiction of the Court.”

PARTICULARS

The then rule-making authority had not at the material time prescribed any special form of action, though the Constitution had already provided for a redress to persons whose rights had been injured.

The appellants’ form of action at the Lagos High Court was in conformity with the form by which the Courts approached under the law, and nonetheless, the appellants specifically pleaded the fundamental rights of the Constitution of the Federal Republic of Nigeria, 1963.

2. Their Lordships’ decision is wrong in holding that the injuries suffered by the appellants did not come within those injuries for which redress must be provided under the Federal Republic of Nigeria Constitution, 1963.”

I will like to state at this juncture that the issue of facts never came before the Court of Appeal for review and decision as so that Court, rightly, never touched on it. The decision of the High Court in regard to non-identification of the perpetrators of the atrocities therefore remained unchallenged in the Court of Appeal nor has that decision been challenged in this Court. The issue of the so-called ”’unknown soldier” , an infelicitous phrase to which I intend to return later remained unresolved as it probably would be without any challenge to the facts as found by the trial court.

Mr. Braithwaite, learned counsel for the Appellants, and as I have earlier said, he had been the counsel for the plaintiffs/appellants in this case throughout, filed a brief in this Court, which though, concise, went into the heart of the matter. The questions he set down for determination were founded on what he referred to as the “only issue for determination” and that is, the question of form of action having regard to the judgment of the Court of Appeal (obviously the lead judgment of Ademola J.C.A.) and the further fact that the defence of the Defendants failed both in the High Court and the Court of Appeal.

Mr. Braithwaite argued further in that brief, and I must say with considerable force, that the distinction between the Fundamental Rights enshrined in the Constitution and “tort” simpliciter is immaterial for the purpose of redressing the injury complained of. I take it that the argument has a lot of logic in it if what learned counsel was urging upon this court was not to be unnecessarily bogged down by forms of action, especially, if that would lead to a miscarriage of justice. For there is no doubt that forms of action could not be wiped out clear as the form indicates the case the opponent is being called upon to meet. I will however come back to this point as I consider it to be very important. “Tortious injuries,” said learned counsel, do “overlap constitutional and fundamental rights” in many cases.

Learned counsel then pinned his case on s.32 of the Constitution of the Federation of Nigeria 1963. He gave six reasons for this and I think it would be best to have these reasons summarised here having regard to the importance learned counsel attached to them, and more so, because as would be seen anon, learned counsel had shifted grounds completely from basing his action on Tort which he originally considered to be the basis of his action and no more, to one of pure constitution and no more. It was only in reply to the Respondents’ brief that learned counsel touched on the issue of fact.

Now, the six reasons upon which learned counsel, Mr. Braithwaite, places reliance in this Court for his challenge of the judgment of the Court of Appeal are as follows –

1. Where there is no provision with respect to practice and procedure, as in s.32(3) of the Constitution, the plaintiff could institute proceedings in accordance with the ordinary procedure of the High Court.
2. A right of action is a constitutional right which is exercisable by a person with complaints touching his civil rights and obligation against another person, government or anything.
3. When the writ and the statement of claim are read together, it would be seen that the claim is based inter alia on constitutional right.
4. Technicalities should be waived for the purpose of getting to the heart of the matter.
5. The preamble of the Constitution which proclaims justice and equality has been held by this Court to be borne in mind.
6. Damages should be awarded under chapter III of the constitution.

For his part, the learned Attorney-General, representing the Respondents relied on five points in answer to the appellants’ Brief. Learned Attorney-General argued in his brief –

1. The wrong complained of by the Appellants is one grounded in the Common Law and not in the Constitution. S.32 of the 1963 Constitution would therefore not apply.
2. The procedure pursued by the Appellant was correct but the action does not lie against the State in tort. The writ does not allege a wrong under the Constitution of 1963 Chapter III.
3. As this is not a Constitutional issue, the question of waiving technicalities does not arise.
4. The procedure of justice and equality in the preamble to the Constitution does not derogate from the principle of validity of existing laws.

In his oral submission in court, Mr. Braithwaite emphasised that he pleaded section 19 of the 1963 Constitution and this has not been abrogated by the Constitution (Suspension and Modification) Decree 1966 No.1. The action he brought therefore was in violation of human rights. Learned counsel then referred us to sections 22 and 32 of the Constitution and submitted that these sections provide remedy for any citizen who alleges that his civil rights have been violated. With the provisions of the Constitution, there is no room, counsel further urged, for the common law doctrine of non-liability of the State for tort. As regards the Respondents argument of non-liability of the State for Tort, the immunity has been swept away by the provisions of the Constitution.

The learned Attorney-General, Mr. Ofodile S.A.N. argued that the nature of the section was very important, S. 32(2) of the 1963 Constitution governs all the provisions in Chapter III. In any event concluded, learned Attorney-General, the fundamental rights would not override the common law.

I have set out the facts and the sequence of this case in so much detail having regard, as I earlier said, to the importance attached to it. I have no doubt in my mind that having regard to the writ of summons, the statement of claim, the evidence, the legal submissions of learned counsel at the various stages of the case, and I have already referred to passages in respect thereof, that the action brought by the plaintiffs against the defendants was one of Tort.

I am, certainly, not unmindful of paragraph 14 of the Statement of Claim which states that –

“The plaintiffs will at the Trial invoke all statutory and common law provisions of the Constitution of the Federation of Nigeria with particular reference to Chapter III and section 19 of the said Constitution.”

This paragraph no doubt calls in aid the provisions of s.19 of the Constitution of 1963. The question however is to what extent does it add to or modify the cause of action of the plaintiffs The cause of action of the plaintiffs was one of tort simpliciter, for as I have already stated, and shown earlier in this judgment, the learned counsel for the plaintiffs punctuated his address in many parts by maintaining that the action he brought on behalf of the plaintiffs was in tort. In so far as the action against the 1st Respondent is concerned therefore, the plaintiffs/appellants could only rely on the vicarious liability of that defendant/respondent though in process thereof he could seek in aid Chapter III of the Constitution for proof of his tortious action but certainly not as a seperate cause of action.

To my mind therefore, it is necessary to examine the grounds of appeal relied upon by the appellants thoroughly to find out what issues are placed thereby before this Court. The only issue arising from the two grounds of appeal is the scope of the applicability to this case of the fundamental rights guaranteed by Chapter III of the 1963 Constitution with particular reference to s.19 thereof. In this respect sections 19, 22 and 32 of the said Constitution are relevant. That is in so far as the appellants case goes by his grounds of appeal.

But compared with this, is the Respondents’ case that the whole case of the appellants is grounded upon an action in tort. In respect therefore, the issue of the immunity of the State in regard to liability in tort would be relevant.

It is important, and I think, I must reiterate again, that neither side, (but indeed this applies more to the appellants), has appealed on the facts. So, in so far as this appeal is concerned, the findings of the learned trial Judge on facts remain for ever unchallenged. It is upon the acceptance of the facts as they were found by the trial court that the legal points raised by both side in this court must be considered.

I think it would be more appropriate to discuss the appellants’ case first, for if the appeal succeeds thereupon, it would be unnecessary to discuss the issue of “liability by the State in tort” upon which, the appellants’ counsel has protested, so vehemently in this court, that he never based his case. Though he did!

S.19 of the 1963 Constitution provides-

“No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”

This is no doubt a right guaranteed to everyone including the appellants by the Constitution. But what is the nature of a fundamental right It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilised existence and what has been done by our constitution, since independence, starting with the Independence Constitution, that is, the Nigeria (Constitution) Order in Council 1960 up to the present Constitution, that is, the Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: it is the 1963 Constitution that applies) is to have these rights enshrined in the Constitution so that the rights could be “immutable” to the extent of the “non-immutability” of the Constitution itself.

It is not in all countries that the Fundamental Rights guaranteed to the citizen are written into the Constitution. For instance, in England, where there is no written constitution, it stands to reason that a written code of fundamental rights could not be expected. But notwithstanding, there are fundamental rights. The guarantee against inhuman treatment, as specified in section 19 of the 1963 Constitution, would, for instance, appear to be the same as some of the fundamental rights guaranteed in England, contained in the Magna Carter 1215 – Articles 19 and 40 which provide –

“no freeman may be taken or imprisoned, or disused of his freehold or liabilities in free customs or be outlawed or exiled or in any way molested nor judged or condemned except by lawful judgment or in accordance with the law of the land And the crown or its ministers may not imprison or coerce the subject in an arbitrary manner” (Underlining mine)

In the United States, the Eighth Amendment to the United States Constitution provides –

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

We are concerned here with “cruel and unusual punishment” for it is this that could amount to inhuman treatment which in Prop v. Dulles 356 US 86, (1958) pp. 100-101 the Supreme Court of the United States regards as “one which must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Yet, neither the Magna Carter nor the Eighth Amendment to the United States Constitution would be equated to and proceeded with except under a separate cause of action. If either had amounted to tort simpliciter resulting in a claim for tort to amount to a complaint under fundamental human right, there could have been no necessity for the common law tort of assault, battery, false imprisonment or even inhuman treatment. The Magna Carter itself would have been relied upon as creating that cause of action, but actionable, not on the judicial authorities of those common law wrongs, but on the Code of the Magna Carter itself; or in the United States there would not have been such plethora of constitutional actions brought in regard to fundamental rights when a common law action could have sufficed to provoke this.

What happens when there is a breach of a fundamental right In this country, the 1963 Constitution S.3 provides the answer. It says-

“32(1) Any person who alleges that any of the provisions of this Chapter has been contravened in any territory in relation to him may apply to the High Court of that territory for redress.”

And so, assuming the case of the plaintiffs was on inhuman treatment under section 19of the 1963 Constitution, they should apply for redress, just as a citizen would have applied for redress in England under the Magna Carter or redress under the Eighth Amendment in the United States, not under the cloak of a Tortious action but positively under the Magna Carter (if in England or the Eighth Amendment (if in the United States). But then how if not by a mere process of a claim in tort

MANNER OF REDRESS:

That is the real question. What is the manner of redress in this country

This is answered by s.32(2) and (3) which provide procedure for the enforcement or securing the enforcement of the right. It provides –

“32(2)Subject to the provisions of section 115 of this Constitution, the High Court of a territory shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, within that territory of any rights to which the person who makes the application may be entitled under this chapter”

That is the jurisdiction conferred in the High Court. But by what process Sub-section (3) is the answer.

“(32) The Chief Justice of Nigeria may, with the consent of the Executive Council, by order, make provision with respect to the practice and procedure of the High Courts of the territories for the purpose of this section and may confer upon those courts such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling those courts more effectively to exercise the jurisdiction conferred upon them by this section.”

The Chief Justice of Nigeria never made any provision under this section. That being the case, could one really insist on any particular procedure In this regard, it is paragraph 14 of the Statement of Claim that is relevant and it needs close examination to see if it constitutes an application for the purpose of s.32 of the 1963 Constitution:-

“14 The plaintiffs will at the trial invoke all statutory and common law provisions and, provisions of the Constitution of the Federation of Nigeria with particular reference to Chapter III and section 19 of the said Constitution” (underlining mine)

Could this invocation of “all statutory and common law provisions of the Constitution” be held sufficient pleading of the Constitutional provisions having regard to the manner the paragraph has been drafted in the con of other paragraphs Ademola J .C.A. said:-

“Their claim as set out is for wilful and malicious damage to their properties. The claim is in tort simpliciter. It is correct that in the pleadings counsel said he would be relying on provisions of Chapter 3 of the 1963 Constitution but that is not the same thing as basing an action on the violation of the fundamental right of the Constitution and seeking redress under s.32 of it.” (Italics mine)

Mr. Braithwaite says this is not correct. But is it not In Aoko v. Fagbemi 1961 1 All N.L.R. p.400 which was relied upon by both the court and learned counsel, a High Court decision, and which, though was in regard to the 1960 Constitution, Fatayi-Williams J., as he then was, said, and I am in full agreement with his postulates therein:-

“With regard to procedure, it would appear that the procedure adopted in bringing the matter before this Court for adjudication is not strictly an application for an order of certiorari to issue. This application was made in pursuance of the provisions of section 31 of the Second Schedule to the Nigeria (Constitution Order in Council)……..Since no law with respect to practice and procedure has as yet, been passed by Parliament, I am of the opinion that the procedure adopted in the present application is in order.”

What was the procedure adopted in that case It was an application for an order to quash a conviction. It did not follow strictly the procedure of certiorari. But the fact is there was and application seeking that redress or to use the language of s.32(2), enforcing or seeking the enforcement of the applicants’ right to be free.

Similarly, in Olawoyin v. Attorney-General 1961 1 All N.L.R. 269 the redress was sought by a declaratory action. Again, there was an action seeking the redress, that is, again, seeking the enforcement of, or enforcing his right.

In my view, under the 1963 Constitution, as it is under the present Constitution,) the subject was at liberty to approach the court for enforcement of his right or, generally, at liberty to seek redress in any manner which he, the subject may deem to be convenient in any given circumstance. Though he could do this by any of the prerogative actions, or by originating summons or declaratory relief he must seek that redress before the Court could be called upon to apply the provision of the Constitution to his case.

I do share the views of Ademola J.C.A. that the claim of the plaintiffs was in tort simpliciter and the only question that could be posed by the appellant is whether that claim in tort, with reference to fundamental right in paragraph 14 of the Statement of claim would be sufficient for the Court to be called upon to start enquiry as to the violation of that right. On this topic, I am definitely inclined to the view held by Nnaemeka-Agu J .C.A .. that-

“For a plaintiff who comes to court in reliance upon Chapter III of the 1963 Constitution to succeed he must show that one or more of the rights guaranteed by that Constitution had been infringed”. (Italics mine)

I believe to seek “redress” under s.32(1) of the Constitution, the plaintiff must be known, by whatever application he employs in the High Court, to be seeking that redress. Redress under sub-section (1) of s.32 has been spelt out in subsection (2) therein to mean “enforcement” or seeking the enforcement of the guaranteed right.

The right guaranteed by this provision is not, in my respectful view a mere right, it is a special one, the remedy for which is outside the purview of an ordinary action which is brought mainly to seek damages for a delict. And when one is out just to seek damages for a tort, allegedly committed by another, the ordinary common law, which it would appear, the plaintiffs in this case have brought, (and not the special law) is the answer. While the special law is meant to seek redress which indeed may even include compensation for the damage done, the plaintiff must be known to be seeking that redress and not merely calling in aid constitutional provisions in his action for damages for tort. It is in this con and to this extent that I understand and regard as correct, Ademola, J.C.A.’s statement that-

“The question here as I see it is a matter of form of action.”

When the Court of Appeal held further that monetary compensation could be claimed in a claim for violation of fundamental right. I think their Lordships are right. But then it is incumbent on a plaintiff to be clear as to what he seeks, the manner of approach notwithstanding. His opponent must know what the claim against him is and not be left to guess. That is the essence of pleadings. That is also the essence of joining issues.

Indeed, it is on account of the effect of the type of action brought by the plaintiffs that Mr. Braithwaite, to my mind, has now changed stance from a claim in pure tort to one only under the Constitution! He has now insisted even unto the point of stating that learned counsel were outraged to learn that anyone could suggest the plaintiffs’ action was in tort and NOT for redress under the Constitution, that he never brought an action in tort at any time. But did he not I take it, that all learned counsel is trying to do here is to “change gear” for, as I have pointed out earlier, learned counsel, Mr. Braithwaite himself was in no doubt that his action was in tort and nothing else. He said so several times and the Court understood him to be saying so. But not only that, the defendants were made to understand him as saying so.

Indeed, the entire record of proceedings was replete with statements by Mr. Braithwaite himself that the action brought by the plaintiffs was in tort and NO MORE. It is too late for counsel to change course at top stream, his cause of action is well defined in his Writ and his statement of claim.

Ubi Jus ibi remedium. The “jus” is tort, the remedy sought was in damages for Tort and NOT redress under the Constitution. Ubi remedium ibi jus. The remedium was in damages the jus is still in tort. And so be it.

In Jaundoo v. A. G. of Guyana (P.c.) (1972) AC 972 as at p. 982 where, as in this case Parliament had not provided rules of procedure of seeking redress in matters dealing with fundamental rights, Lord Diplock reading the judgment of the Board approved the dictum of Warrington J. in re Meises, Lucius and Bruking Ltd. (1914) 31 TLR 28 where the learned Judge had said

“where the Act” (sic Constitution) “merely provides for an application and does not say in what form that application is to be made, as a matter of procedure it may be made in any way in which the court can be approached.”

“Approach” here must mean approach by an application for the particular redress. I agree with Lord Diplock, especially, as he was quick to add an important proviso. He said-

“There is only one qualification needed to this statement. It is implicit in the word “redress.” The procedure adopted must be such as will give notice of the application to the person or the legislative or executive authority against whom redress is sought and afford him or it an opportunity of putting the case why the redress should not be granted. ;'(Italics mine)

Even this accords with common sense. Applying this dictum, what notice has the plaintiffs given to the defendants in this case It is clearly, and indeed very clearly, a notice of a claim in damages for Tort where the plaintiffs would call constitutional provisions in aid for that claim. And as a further proof, in what looks like a written address, submitted by learned counsel for the plaintiffs, in the High Court, he minced no words about the notice he has given to the defendants. That notice is implicit in his submissions which I have already referred to in this judgment and at the risk of repetition. I will state it again. He said-

“My argument postulates that the whole of our claim in this case is one purely in tort and nothing else. And I hereby so submit. A look (sic) cursory or careful at the endorsement on the Writ and the accompanying Statement of Claim shows the claim is in fact and in substance a claim for injury to the persons of the plaintiffs and their chattels…….” (Italics mine)

There is no doubt whatsoever, that this is clear notice enough, and the defendants were obliged to join issue with the plaintiffs only on this action which was “purely in tort and nothing else.” After all, the plaintiffs and their counsel knew or should know what action they intended to seek and in fact sought and the defendants are nor to expect more or even less when they joined issues. Here, it is an action in tort and no more. For justice is to be done according to law and certainly not according to sentiments. Ground 1 of the Grounds of Appeal fails.

Ground 1, having failed, one could have said that ground 2 no longer arises for, if the plaintiffs never claimed under the Constitution, but under the common law wrong of tort, the only thing that should be outstanding was whether the defendants were liable either jointly or severally. The Government is brought in here as a vicarious defendant. I will therefore, for what it is worth, still deal with the liability of the defendants at common law. Mr. Braithwaite has said that the only issue for determination by this Court is the form of action he had brought but he has made some assumptions as his premises for this conclusion.

The brief he filed reads inter alia:-

“QUESTIONS FOR DETERMINATION:

Since the facts of the considerable damages suffered by the appellants are not in dispute, and the respondents’ main objections in law, to wit:

The defendants will contend at the trial –

(1) that the second, third and fourth defendants are not legal persons to be sued in representative capacities;

(2) that the Government could not commit a wrong personally or authorise a wrong to be committed in its name;

(3) that the procedure adopted by the plaintiffs in bringing this action is wrong in so far as the action should have been commenced by petition of rights’ failed both in the High Court and the (sic) Federal Court of Appeal”

The assumption by learned counsel is that the Respondents had already failed in two courts on the issue of immunity of the State in a claim in tort and procedure for bringing this action but these assumptions made by learned counsel and main objections are, with respect not correct. Learned counsel was asked to make submissions upon these points in this Court. He did not. Even when this Court asked him questions on them, Mr. Braithwaite still would not, as he insisted his case had always been one dictated on the Constitutional claim. Having held therefore that the plaintiffs never sought redress in the High Court under s.32 of the Constitution 1963, there is hardly any reason for further discussion but because of the importance of this case I will still discuss the liability, if any, of the defendants.

First, the defendants were sued both jointly and severally. The High Court, in regard to several liability, made a finding, after considering the evidence led by the plaintiffs in support of these allegations. He said that whatever role the named “officers” that is, the defendants who were alleged to have personally taken part in the episode, have played, the role does not “come near the allegations in the pleadings that they burst into the house and maliciously set fire to it. He went on –

“I add further that there was no evidence that they ordered any soldiers to do so either. It is trite saying that evidence must support what is pleaded and not otherwise. I have no evidence that any of these officers burst into 14A Agege Motor Road and ignited generators there to cause the conflagration.”

The learned judge concluded on this point –

“I suppose it is the difficulty of identifying the particular soldiers who took part in the atrocities that drove the plaintiffs to want to hold the Attorney-General responsible because they are servants of the State.”

There was no appeal on this finding either to the Court of Appeal or this Court. The appellants could not complain now and, in fairness to them, are not really complaining about individual liability.

What is left is in regard to the vicarious liability of the Government, but the appellants have been met by that old and almost anachronistic legal phraseology that the King can do no wrong. The State (the King in England) has immunity at common law against being sued. This was based on the ancient principle of non-impleading the King in his own courts. Petitions of right which could be addressed to the King would not however lie for tort. This is the prerogative of Kings, and Bacon, using a picturesque expression, has adequately described it as –

“a garland of prerogatives woven around the pleadings and proceedings of the King’s suits.”

But the doctrine of immunity was in fact older than Bacon. Maitland regarded “some of the flowers of this garland” to be merely buds in the days of Henry III. That was long before Bacon. However, by the 16th Century, Petitions of right have been distinctly identified from petitions of grace. Yet it had always been recognised that petitions of right would never lie for a mere tort. If the King, did wrong, he just could not be sued. It was the agent who committed that wrong on behalf of the King that would be liable. Again, that is the prerogative of Kings.

There is no doubt that there is a background and history for this archaic doctrine in that country – England. Their bards have described the country as a “teaming womb of royal Kings.” But what is strange is that this common law doctrine remained part of OUT received laws and continued to be part of the common law administered in this country even after this country had become independent of that “royal throne of Kings.”

By virtue of the Interpretation Act (Cap 89) Laws of the Federation of Nigeria and Lagos 1959, section 45(1) which provides-

“Subject to the provisions of this section and except in so far as other provision is made by any Federal law , the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st day of January, 1900, shall be in force in Lagos and, in so far as they relate to any matter within the exclusive legislative competence of the Federal legislature, shall be in force elsewhere in the Federation.”

has preserved this ancient and royal doctrine of immunity of the State in our laws.

But that is not all. By Ordinance No. 19 of 1915, the Petitions of Rights Ordinance was passed. This Ordinance was subsequently amended, the last amendment being made in 1964 (see Laws of the Federation and Lagos 1958 Cap 149). This last amendment could have been an opportunity to repeal a law which preserved immunity in the State. But it is remarkable that, though in 1947, England, “the Earth of Majesty,” which introduced the doctrine into the common law and which has historic justification for such introduction had passed the Crown Proceedings Act, s. 2 of which provides-

“Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which if it were a private person of full age and capacity it would be subject….”(Italics mine)

thus bringing to an end the immunity of the Crown, in that year 1964, 14 years after Great Britain had passed their Crown Proceedings Act, and a year after this country became a Republic thus shedding off the last vestige of colonialism, the Petitions of Rights Act Cap 149 was amended, but such that the position as it was in pre-1947 England be retained in Nigeria, in so far as tort is concerned! Leaving this country to be more royal than ‘Royalty itself’”

I have checked all our Constitutions prior to 1979 and regrettably I am not able to find any provision which one could apply, even remotely but rightly, in an annulment of this doctrine. The Court is to administer law as it is, and not as it ought to be.

This immunity attaching to the State in this country is sad. For the learned trial judge who took evidence described the scene that day as “hell let loose” and this he had set out in his anaylsis of the evidence. He said –

“It is beyond dispute, of course, that many soldiers, a witness gave the figure of 1,000, surrounded the entire buildings, hawling stones and broken bottles. Many of them got inside the building, set fire to it as well as the generator in the compound.”

This is bad. It should not be right that once the actual perpetrators could not be determined, the State, whose soldiers these perpetrators are could not be made liable. But then as I said the immunity of the State persisted at the time of the incident.

As it is the 1963 Constitution that governs this case I have made special study of the provisions that I believe may be applied to exclude this immunity. S.22 is the closest but then it deals only with determination of rights and talks about fair hearing being within a reasonable time. The complaint here is not that the appellants did not have fair hearing. No provision has helped.

Happily for the country, but this does not affect the instant case, section 6 of the 1979 Constitution which vests the judicial Powers of the country in the court has to my mind removed this anachronism.

Sub-section (6) of the section provides –

“(6) The judicial powers vested in accordance with the provisions of this section –

(b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any

questions as to the civil rights and obligations of that person.”

(Italics mine)

There is no equivalent of this provision in previous Constitutions. For if it had been, the importation of the expression “unknown soldier” which expression is normally revered all over the world, be it East or West, and which expression has now been turned into a joke and infelicitousness as a result of an enquiry into the identity of the vandalists that day, would not have excused the State from liability.

As it is, the appeal must fail and it is hereby dismissed. There shall be no order as to costs.

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SC.123/1984