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THE WELL CONSIDERED JUDGMENT OF THE SUPREME COURT IN THE CASE OF ALIU BELLO & ORS v ATTORNEY GENERAL OF OYO STATE

THE WELL CONSIDERED JUDGMENT OF THE SUPREME COURT IN THE CASE OF ALIU BELLO & ORS v ATTORNEY GENERAL OF OYO STATE

 

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 5TH DAY OF DECEMBER, 1986

SUIT NO: SC.104/1985

CITATION: (1986) 12 LLER 1

 

Before Their Lordships

 

MOHAMMED BELLO, J.S.C.

ANTHONY NNAEMEZIE ANIAGOLU, J.S.C.

DAHUNSI OLUGBEMI COKER, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

SAIDU KAWU, J.S.C.

CHUKWUDIFU AKUNNE OPUTA , J.S.C.

SALIHU MODIBBO ALFA BELGORE, J.S.C.

BETWEEN

ALIU BELLO & ORS

(APPELLANTS)

AND

ATTORNEY-GENERAL OF OYO STATE

(RESPONDENT)

RATIO/PRONOUNCEMENTS

  1. ACTION
  2. Cause of Action—What amounts to; nature of;

I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the Plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim – see Trower & Sons Ltd. v. Ripstein (1944) A.C. 254 at p. 263; Read v. Brown 22 Q.B.D. 128, Cooke v. Gill (1873) L.R.8 C.A. 107. Sugden v. Sugden (1957) All ER. 300: Jackson v. Spinal (lR70) L. R.5 C. P. 542. Concisely stated, any act on the part of the defendant which gives to the Plaintiff his cause of complaint is a cause of action. PER KARIBI-WHYTE, J.S.C. READ IN CONTEXT

  1. Reliefs—On whether a court will deny a party relief merely because it was applied under the wrong law, notwithstanding that it has been pleaded and well founded

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. Per BELLO, J.S.C READ IN CONTEXT

  1. CONSTITUTIONAL LAW
  2. Right of Appeal of a convict—Does the right of appeal of a convict under the constitution include a right to stay of execution until appeal is finally determined?

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. Per BELLO, J.S.C READ IN CONTEXT

  1. INTERPRETATION OF STATUTE
  2. Long title of a statute—Whether can be relied upon in the interpretation of the statute

The long title of a statute is now accepted as an important part of it and may be relied upon as explaining its general scope and aids in its construction. Per KARIBI-WHYTE, J.S.C READ IN CONTEXT

  1. LEGAL MAXIM
  2. ubi jus ibi remedium—Nature of; and application as a pillar of justice

I think it is erroneous to assume that the maxim ubi jus ibi remedium is only an English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the courts to provide a remedy whenever the Plaintiff has established a right. The Court obviously cannot do otherwise. It is enjoined to eschew reliance on technicalities in the determination of disputes – see State v. Gwonto & Ors (1983) 1 SCNLR. 142 at p. 160. The substance of the action rather than the form should he the predominating consideration. Appellants have relied on the decision of this Court in Falobi v. Falobi (1976) 1 N.M.L.R. 169. 171 to argue that even if the writ of summons and statement of claim had not specified a particular law under which the action was brought, the Court will give a remedy where the facts as disclosed fall within a remedy recognised in law. I think this is a correct principle deducible from Falobi v. Falobi (supra). Per KARIBI-WHYTE, J.S.C READ IN CONTEXT

  1. TORT
  2. Actionable Death—Under what circumstances would non-accidental death, or felony resulting in death, be actionable under section 3 of the Tort Law?

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 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.” (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 be pointed out that the basis of a claim under section 3 of the Torts Law is the survival of a right of action. Per BELLO, J.S.C READ IN CONTEXT

  1. WORDS AND PHRASES
  2. Meaning of “illegal”

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. Per BELLO, J.S.C. READ IN CONTEXT

  1. Meaning of “wrongful”

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: “…(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. Per BELLO, J.S.C READ IN CONTEXT

 

BELLO, J.S.C.: (Presiding and Delivering the Leading Judgment):

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.

  1. 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 but 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 jus 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 only 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,

  1. 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.

  1. 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. (back to top?)

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.

  1. 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.

  1. 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.).” (back to top?)

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. (back to top?) 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.” (back to top?)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 N2,400 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.

ANIAGOLU, J.S.C.: The accepted background facts which gave rise to this appeal and which gave the circumstances which led to the illegal execution, by Oyo State Government functionaries, of the deceased-convicted-armed-robber-Appellant, Nasiru Bello. Its peculiar notoriety, have been carefully set out in the judgment of my learned brother, Bello, J.S.C., who has painstakingly gone through the various laws applicable. I agree with his reasoning and conclusion.

This is the first case in this country, of which I am aware, in which a legitimate Government of this country – past or present; colonial or indigenous – hastily and illegally snuffed off the life of an Appellant whose appeal had vested and was in being, with no order of Court upon the appeal, and with a reckless disregard for the life and liberty of the subject and the principles of the Rule of Law. The brutal incident has bespattered the face of the Oyo State Government with the paintbrush of shame.

Section 220(1) of the 1979 Constitution has spelt out the cases in which appeals would lie as of right from decisions of the High Court to the Court of Appeal. Specifically dealing with cases in which a person has been sentenced to death by the High Court is Section 220(1)(a):

“An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases xxx

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

By the provisions of Section 33(1) of the 1979 Constitutions.

“….a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law…”

Therefore, a person who can appeal as of right under section 220(1)(e) and who has exercised that right cannot he given a fair hearing under Section 33(1) of the Constitution if he is not allowed, by premature execution, to present his appeal to the Court of Appeal.

The fact of the right of appeal to the Court of Appeal granted by the Constitution under section 220(1), and, a fortiori, to the Supreme Court granted under section 2/3(1) of the same Constitution, is in itself tantamount to a stay of execution, for the Legislature cannot grant the right to the Appellant to argue his appeal and expect him to argue it as a dead man.

Moreover, since the Appellant was condemned to death, the sole purpose of his appealing against that sentence was for the sentence not to be carried out, that is to say, for the higher court to order the sentence not to be carried out and thereby ensure the Appellant continued living. If the Appellant would be executed before the higher Court looked into his matter, the entire purpose of the Appeal would be defeated. The Appeal would thus be rendered nugatory. The Constitution could not, therefore, on the one hand grant the Appellant the right to appeal, and, on the other, stultify that right.

Without the necessity of any specific provision in the Constitution spelling out that the sentence of death he stayed while the Appellant preceded with his appeal. I would hold, and hereby hold that the most reasonable construction that can possibly be placed on those sections of the 1979 Constitution must be that it must be implied, and that implication read into the Constitution, that an Appellant who has validly appealed against a death sentence imposed on him, must have the sentence stayed while he is proceeding with the appeal. The subsistence of a valid appeal in such a case is, by itself, a stay of execution.

It has to be noted that the execution of a convicted prisoner is the last act, in a series of acts, beginning from his arrest; his trial and conviction: his appeals, and even after the appeals, the Governor of a State still has to consider the Report of the trial Judge sent pursuant to the Criminal Procedure Law and finally, the Report of the Committee far the Prerogative of Mercy. It is after all these have been exhausted that the Appellant goes under the hangman’s noose or (as in the instant case) faces the firing squard.

This aspect of whether the Appellant was entitled to live until he exhausted his vested appeal is the only aspect of the judgment in this appeal on which I consider I should contribute a few further comments in concurring with the lead judgment of my learned brother, Bello, J.S.C. I would abide by the rest of the orders as decreed by him in that judgment.

COKER, J.S.C.: I have had the advantage of a preview of the judgment just delivered by Bello, J.S.C., and I entirely agree with his reasons and conclusion that this appeal should be allowed and the judgment of the Court below and that of the trial court he set aside.

My very learned brother has dealt at considerable depth with all the relevant issues raised by all the counsel and I cannot usefully add anything to what he has clearly stated. I adopt his reasons and conclusions as mine and abide by the orders including costs which he made.

KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned E brother. Bello, J.S.C. in this appeal. I agree entirely with the conclusion that this appeal be allowed. I however wish to add in amplification my reasons for so agreeing.

This appeal calls for a definitive pronouncement on the scope and content of the Torts law of Oyo State, which is in parts a re-enactment of the English Fatal Accident Act 1846 applying in other parts of the country. The same points of law have been argued both in the Court of Appeal and in this Court in this case. Unfortunately there being no appeal against the finding of the Court of Appeal. stricto sensu the point of law of constitutional importance is not directly before us. I however concede that the point of law of constitutional importance is relevant to the determination of the point in issue. The point of law before us is whether appellants were entitled to bring an action on behalf of the execution of Nasiru Bello who had filed an appeal against his conviction and sentence of death for the offence of Robbery with firearms, but was executed before the appeal was heard were entitled to bring an action in respect of such execution? Thus both the constitutional right of Bello to live under Section 30(1) and if alive to exercise his right of appeal against his conviction under Section 220(1) was by one act of execution deprived him. Again the question is whether the Common Law rule in Baker v. Bolton (1808) 1 Camp. 493 was still applicable in view of the unambiguous words used in S.3 of the Torts Law. The defendant/respondents relied heavily on the Common Law rule in Baker v. Bolton (Supra). It is however necessary to point out that the question of the violation of Nasiru Bello’s constitutional right to life in S.30 and right of appeal in S.220(1) have been decided in both courts below in favour of the appellants.

The facts which gave rise to this action are in all material respects not disputed, although respondents dispute certain interpretations by the appellants of the facts. The facts are that Nasiru Bello, the deceased, and Jimoh Ayinde, who is not a party to this litigation, were on the 30th October 1980 convicted of the offence of Armed Robbery with violence contrary to and punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 as amended by the Robbery and Firearms (Special Provisions (Amendment No.8) Decree of 1974. On the 12th November, 1980, appellant gave notice of appeal to the Court of Appeal against the conviction and sentence. The notice of appeal and subsequently notice of hearing was served on the Attorney-General of Oyo State. On the 5th September, 1981, after notice of appeal and of hearing had been served, on the defendant, Nasiru Bello was executed by a firing squad in purported compliance with the judgment of the trial Court against which he had filed his notice of appeal. His dependants having failed to get compensation from the Government of Oyo State, for killing their bread winner, while his appeal was still pending, filed an action in the High Court of Oyo State at Ibadan, claiming as follows:

“The Plaintiff’s claim against the defendant is for N100,000 as damages for illegal killing of their bread-winner. Nasiru Bello, who was convicted of armed robbery by Mr. Justice Apara sitting at the Ibadan High Court on 30th October, 1980. The convict filed his notice of appeal to F.C.A. on 12th November 1980 i.e. within time. Records of appeal were received in April. 1981. Surprisingly and without any prior notice, the convict was publicly executed on 5/9/81 at Ibadan before the Federal Court of Appeal, Ibadan, could entertain the appeal. In other words, the Government of Oyo State of Nigeria killed the appellant while he had a subsisting valid appeal. Despite the encouragement of the Federal Court of Appeal in its ruling on Nasiru Bello & Anor. v. The Stare Appeal FCA/41/81 delivered on 18/12/81 and the petition of the plaintiffs to His Excellency, the Governor of Oyo State and the oral promise by the defendant ta pay compensation to the plaintiffs, nothing has been done by the Oyo State Governor for the plaintiffs, who were the dependants of the executed appellant. The plaintiffs shall rely on the doctrine “where there is a right, there is a remedy.”

The first plaintiff is a junior brother of the illegally executed appellant while Marufu, Kudi, Modinatu and Sakiratu are his children suing through Aliyu Bello, their next friend, while Bello Paranti is his aged father. Fatumo is the wife of the executed appellant while Nurudeen, Sule, Gani, Alake, Muinatu and Rafatu are his other dependants.”

Pleadings were filed and exchanged. Paragraphs 1, 2, 3, 4, 5, 10, 11, 12 of the statement of claim, paragraphs 1, 2, 4, 7, 8, 12, 13 of the reply to the statement of defence avers the facts constituting the liability of the Defendants and paragraphs 1. 2. 3 of the statement of defence admits the killing of Nasiru Bello but deny that it was barbaric. Paragraphs 4 of the Statement of defence denied paragraphs 1, 6, 10, 11 of the statement of claim. Paragraph 9 of the statement of defence aver that defendants will rely on the doctrines of damnum sine injuria and exturpi causa non oritur actio. Paragraphs 10, 11, 12 raise the defence that Plaintiffs have no cause of action and that the statement of claim did not disclose any. Paragraph 13 raised the defence that the claim was barred by the provisions of Section 2 of the Public Officers Protection Law, Cap. 106, Laws of Western Nigeria. Although paragraph 12 of the statement of defence averred as follows:

“The defendant will contend at the hearing that the Statement of Claim discloses no cause of action.”

The defendant did not take advantage of the pleading, and the action went to trial without trying the preliminary issue. Accordingly issues were joined in respect of whether defendant was liable to the Plaintiff for the act or default of its servants resulting in the death of their bread-winner, i.e. the deceased Nasiru Bello.

Plaintiffs called Aliu Bello, the first Plaintiff as their only witness. Defendant did not call any witness, probably relying on the statutory defence that the action, if any, was barred. Indeed its main contention was that Plaintiffs had no cause of action.

In his evidence Aliu Bello stated that Nasiru Bello, now deceased, was his elder brother and deposed to the circumstances of his death in support of the pleading in the statement of claim’. He also deposed to the fact that Marufu Bello, Kudi Bello, Modina Bello and Sakiratu Bello are the children of the deceased. He said that Bello Paranti and Fatimo Bello are the father and mother of the deceased respectively. Fatai Bello, Nurudeen Bello Sule Bello. Gani Bello, Alake Bello are hrothers and sisters. Muniratu Bello and Rafatu Bello are his widows. These are the dependants of Nasiru Bello. It was claimed and stated in evidence that Nasiru was expending N200 per mensem on behalf of these dependants. The Plaintiffs and Defendants agreed to tender and accepted certain documents as conclusive of the matters averred. Plaintiffs tendered the four birth certificates of the children of the deceased Nasiru Bello and the certified true copy of the ruling of the Court of Appeal in Suit No FCA/1/41/81 delivered on the 18th December, 1981 marked Exhibits A, B, C, D, E, respectively. On their part, the defendants tendered the judgment in the High Court, Ibadan, of the conviction and sentence to death of Nasiru Bello, and the enrolled order of the judgment marked Exhibits F and F1 respectively.

After the conclusion of the addresses of Counsel, the trial judge in a reserved judgment dismissed the claim of the Plaintiffs. He however assessed damages of N7,400 if he was, on appeal, held to be wrong on the issue of liability. I think it is pertinent to what will he said hereafter to state the reasons given by the learned trial Judge for dismissing the claim of the Plaintiffs.

The learned trial judge considered the issue whether the execution of Nasiru Bello on the 5th Novemher 1981 whilst the appeal against his conviction was pending and when the fact that the appeal was pending was known to the defendant, was wrongful. The learned Judge considered Section 220(1) of the Constitution 1979 which conferred a right of appeal on the deceased, and exerciseable by the deceased himself. Since the execution of the deceased deprived him of his right to exercise his constitutional right to appeal to the Court of Appeal under Section 220(1) and if need he to the Supreme Court by virtue of Section 213(2)(d) of the Constitution 1979, the execution was wrongful. However, relying on the English case of Baker v. Bolton 1808) 1 Camp, 49:1 where it was held that at common law, “no one can recover damages in tort for the death of another”, he held, citing Admiralty Commissioners v. S.S. Amerika (1917) A.C 38 that the wrong was not actionah1e at law at the instance of the Plaintiffs.

It is interesting to observe that the learned trial Judge recognized that the Torts Law provided exceptions to the rule in Baker v. Bolton, (supra) but he limited the exception” to the right to sue to cases of accidental death. Having reproduced the provisions of Section 3 of the Torts law Cap. 122. he stated his understanding of the legal position as follows:

“It is clear from this discourse that the death of a person cannot be the subject of a complaint in a civil court, except such action is formulated under the Torts law. Regrettably however, this action is not so commenced. Even if the action had been so begun, the Plaintiffs would have to prove negligence on the part of the defendant.”

It seem to me that the learned trial Judge was here, searching for evidence of negligence on the part of the defendant without which in his view, the defendants could not be held liable under the Torts Law. He stated as follows:

“Even though the Plaintiffs pleaded recklessness which to my mind is a form of negligence and which the defendant denied, the only witness for the plaintiffs gave no evidence in support thereof.”

The trial Judge thought that if Plaintiff had expressly pleaded res ipsa loquitur, and deductions from the surrounding circumstances defendant could have been held liable. Having not done so, it was not open to him to so hold.

The trial Judge also considered the defence under Section 2(a) of the Public Officer” Protection Law, Cap. 106 Laws of Oyo State which bars action brought against public officers for acts done in execution of duty, unless commenced within three months after the act, neglect or default complained of, or the ceasing thereof in the case of a continuance of damage or injury. He held that the writ of summons having been filed on the 17th June, 1982, action was commenced more than three months from the date of execution of Nasiru Bello which was on the of 5th September, 1981. The defendant it was held is a public officer and was entitled to the protection of the section.

The trial Judge therefore dismissed the action of the Plaintiffs on the grounds that (1) Although a wrong has been done to him, the wrong did not fall within a recognized remedy, since by virtue of the common law, the death of a human being cannot be made a ground for complaint. (2) The action having been commenced outside the period prescribed under the Public Officers protection Law is statute barred.

Plaintiffs appealed against the decision and the damages awarded as being too low. There were six grounds of appeal as follows:

Ground of Appeal

“1. The learned trial Judge erred and misdirected himself in law in dismissing the Plaintiffs’ case on the ground that the action was not formulated under the Torts Law Cap. 122, Laws of Western Region of Nigeria applicable in Oyo State.

Particulars of Error/Misdirection

  1. The facts fit into the Law.
  2. It is not obligatory to formulate the action in the Tort’s Law form.

iii. It is the substance of a suit which is important and not the form.

  1. The learned trial Judge erred and misdirected himself in law in holding that it was not open to hold that from the surrounding circumstances, the defendant was negligent as there was no plea of res ipsa loquitur.

Particulars of Error/Misdirection

  1. It was not necessary to plead the words “res ipsa loquitur.”
  2. The surrounding circumstance have raised the plea indirectly.

iii. Negligence was clearly established in that an appellant was killed while his subsisting appeal has not been determined.

  1. The learned trial Judge erred and misdirected himself in law in holding that the plaintiffs were not defamed.

Particulars of Error/Misdirection

  1. The claim of defamation is not too remote as viewed by the learned trial Judge.
  2. The ingredients of defamation are clearly satisfied.

iii. The doctrine “where there is a right there is a remedy” applies.

  1. The learned trial Judge erred and misdirected himself in law in holding that the defendant was a public officer and that the action was statute-barred.

Particulars of Error Misdirection

  1. The Attorney-General was sued as an agent of the Oyo State Government and not for his personal action in the matter and is therefore not a public officer within the purview of Section 2 of the Public Officers Protection Law Cap. 106 Laws of Western Region of Nigeria.
  2. The order to compensate the Plaintiffs made by the Attorney-General had not been withdrawn.

iii. The injury has not ceased.

  1. The proposed damage is too low.

Particulars of Error/Misdirection

  1. There was uncontroverted evidence as to how much the executed relation was expending on the plaintiffs.
  2. The case calls for an exemplary damage award.
  3. The judgment is against the weight of evidence.”

Grounds 1, 2, 4 are particularly relevant because they touch and concern the issue whether the defendants are liable to the Plaintiffs for the wrong done to Nasiru Bello, their bread-winner. In arguing those grounds of appeal Counsel for the Plaintiff, hereinafter referred to as the appellant. It was submitted that the action was based on gross negligence of the agents of the defendant which resulted in the death of the deceased, and the defamation of the Plaintiffs as members of the family of the deceased who was executed as a convicted armed robber before the appeal he filed against his conviction was heard. Counsel for the appellants relied on paragraph 5 of the statement of claim and 12 of the reply to the statement of defence. He also cited and relied on the provisions of Section 3 of the Torts Law, Cap. 122 Laws of Oyo State

Counsel in his reply to the criticism of the form of the action cited and relied on Falobi v. Falobi (1976) 1 N.M.L.R. 169. 171 for the proposition that where the facts constituting the cause of action are sufficiently pleaded, the court will not refuse a remedy merely because the wrong provision of the law had been relied upon.

In his address Counsel to the Defendant hereinafter referred to as the Respondent citing and relying on Admiralty Commissioners v S.S. Amerika (1917) A.C. 88. Baker v. Bolton 1(supra) and the Torts Law of Oyo State, submitted that the endorsement on the writ of summons claims damages for “illegal killing” as distinct from “accidental killing.” He submitted that the writ of summons was therefore incurably defective because the Torts Law recognises only accidental killing and not illegal killing. Secondly, it was submitted, referring to Section 4 of the Torts Law, that any action brought under the Torts law aforesaid, must be initiated in the name of the executors of the deceased, An action brought by a Plaintiff claiming to sue as an administrator without taking out letters of administration is incompetent.

Appellants have not averred in their statement of claim that they were suing as the executors or administrators of the estate of Nasiru Bello and no letter of administration was tendered. Furthermore, appellants have complied neither with the provisions of Section 4 of the Torts Law by averring in their statement of claim that the action was being brought “for the benefit of the dependants therein set out. There was neither averment in the statement of claim nor evidence at the trial that since there was no executor, and an administrator having not been appointed within six months, of the death of the deceased, appellants were under the proviso to Section 4 of the Torts Law, entitled to bring the action in their own names. It was also pointed out that the full particulars of the dependency of the appellants were not set out in the statement of claim. It was finally submitted that Counsel for the Appellants reliance on the principle of ubi ius ibi remedium was a clear indication that he had not adverted his mind to the provisions of the Torts law and never based the claim on it.

The Court of Appeal agreed with the submission that the claim in the writ of summons and the averment in the statement of claim were incurably defective and are therefore incapable of disclosing a cause of action. It was also held that Appellants had not complied with the provisions of the Torts Law and therefore could not succeed on the basis of that law. The Court of Appeal held that Appellants claim could not he founded partly or wholly on defamation, because the action was not so framed, and that an action for defamation can only arise from “the publication of matters (usually words) conveying a defamatory imputation.” It was held that the killing of a person could not tantamount to a defamation. The Court considered whether a claim for negligence was disclosed on the writ of summons and the statement of claim filed and held that the action was not a claim in negligence. It was held that “Negligence per se is not averred.”

The Court distinguished the case of Falobi v. Falobi (supra) relied upon by appellants on the ground that that case contemplated a situation where an action was expressed to be brought under a wrong law, but was in fact covered by a right law not referred to. The Court stated.

“And the ratio relied on specifically provides that the claim itself must be properly laid. It does not appear to me that a claim in negligence is properly laid here.”

The Court of Appeal then went further to decide that even if the claim were properly laid in negligence, appellants did not establish by evidence any negligence against the defendants. It was also conceded that res ipsa loquitur need not he specifically pleaded, hut the rule can only he applied where there was evidence of the circumstances of the event from which negligence could be inferred. In this case in the absence of any evidence, res ipsa loquitur could not he invoked to attribute negligence to the defendant. The Court of Appeal then went on to hold that even if appellants succeeded in establishing negligence against the defendant, they would still fail in their action because the rule in Baker v. Bolton (supra) denied them any remedy where negligence resulted in the death of the person so injured. The Court said,

“But assuming further that there is evidence of negligence does it establish a duty of care owed to the Plaintiffs/Appellants which was breached by the Defendant? This brings us back to the question whether or not the Plaintiffs can succeed on a claim for “‘illegal killing” which is what really took place. The Defendant owed a duty of care not to injure the deceased; and if that duty is breached and death results, his administrators can claim under the Torts Law. He does not owe any duty of care expressed in negligence or indeed in civil law NOT TO KILL. An illegal killing normally gives rise to a sanction under the criminal law. The rule in Baker v. Bolton referred to earlier shuts out any claim by a relation/personal representative/administrator that sounds in damages. It therefore follows, and I am of the view that even if there is prima facie evidence of negligence, no action based thereon can succeed.”

The Court of Appeal considered ground 4 of the grounds of appeal and the finding by the learned trial Judge that the Defendant being a public officer, the action was statute-barred by virtue of the provisions of section 2 of the Public Officers Protection Law. In reversing the trial Judge the court held that the Defendant was such in his official capacity as agent of the Oyo State Government and its chief law officer. In such circumstances he could not take shelter under the provisions of Section 1 of the Public Officers Protection Law.

The appeal against damages was dismissed on the ground that the damage assessed was based on the evidence before the learned trial Judge. On the whole: the appeal was dismissed on the ground that Appellants had no cause of action as their action did not fall within the purview of the Torts Law.

Appellants appealed to this Court against the holding that they had no cause of action. There is no appeal against damages. Only one ground of appeal was filed. It is as follows:

Ground of Appeal:

“1. The learned Justices of the Court of Appeal erred and misdirected themselves in law in dismissing the Plaintiffs/Appellants appeal on the ground that the Plaintiffs cause of action was unknown to the law and the Court of Appeal recommended that ex gratia compensation he paid to the Plaintiffs/Appellants to assuage their feelings.

Particulars of Error/Misdirection in Law:

  1. By recommending ex gratia compensation, the Court of Appeal had tacitly admitted that some injury was done to the Plaintiffs/Appellants by the Oyo State Government.
  2. The Plaintiffs/Appellants pleaded the doctrine of “where there is an injury there must be some remedy” and canvassed it both at the trial Court and at the Court of Appeal.

iii. Once it was conceded that the Plaintiffs/Appellants suffered some injury, the Court of Appeal ought to have awarded substantial damages in favour of the Plaintiffs/Appellants despite the fact that the injury was unprecedented.”

The appeal first came up for hearing on the 7th day of July 1986. The novelty of the claim and the constitutional importance of the issues to be considered in addition to the fact that the nature of the claim were such as were not confined to the Defendant, but more capable of repeating in other states, the Court invited the Attorney-General of the Federation and of the States to appear as amici curiae on the hearing of the appeal on the 6th September, 1986. The Court received immense assistance from the briefs of argument filed and oral expatiation thereon by the amici curiae. Appellants and Respondents also filed briefs of arguments and appeared before us to elaborate on the briefs so filed.

I have already stated the facts which gave rise to the action. I have also outlined the judicial history of the litigation. The Appellant has in his brief of argument outlined the issues for determination as follows:-

“1. Is the condemned convict entitled to live until he has exhausted the constitutional rights of appeal?

  1. If the condemned convict was prematurely exterminated while he has filed a subsisting valid appeal, does his relations and/or dependants have any cause of action?
  2. Is the gate of tortious liability and/or negligence and/or defamation closed in Nigeria?
  3. What is quantum of damages desirable in this case if this Honourable Court should rule in Appellants favour?”

The issues have been stated variously in the different briefs filed. The most exhaustive of them are those which include the issue of damages which is not a ground of appeal. Also included is the issue of the constitutional right of Nasiru Bello which as I have already said. is not stricto sensu the issue before the Court. An exhaustive formulation of matters argued would include the following issues;-

  1. Whether the condemned convict was entitled to live until he has exhausted his constitutional right of appeal?
  2. If the condemned convict was prematurely exterminated while he had filed a subsisting and valid appeal, do his relations and/or dependants have any cause of action?

iii. Is the gate of tortuous liability and/or negligence and/or defamation closed in Nigeria?

  1. What is the quantum of damages desirable in this case if the court should rule in the appellants favour?
  2. Whether the action is sustainable by virtue of the provisions of the Public Officers Protection Law, Cap. 106 of Western Nigeria 1959.

There are other formulations of the issues for determination which relate to

(a) whether the action as formed compiled with the Torts Law Cap. 122;

(b) whether the action as framed can be founded partly or wholly on the Tort of defamation or any Tort at all;

(c) whether there was sufficient evidence of negligence to sustain the claim;

(d) whether defendant/respondent is entitled to plead the defence of limitation in Section 2(a) of the Public Officers Protection Law Cap. 106. Vol. V, Laws of Oyo State 1978:

(e) whether this is a proper case for the Government of Oyo State to make ex gratia payment and- whether such ex gratia payment is enforceable.

It is pertinent to observe anon, that the ground of appeal necessarily limits the issues for determination. It seems obvious from the judgment appealed against that the issue of the protection under the Public Officers Protection Law, does not arise, having been determined in favour of the appellant. Respondent has not cross-appealed against the decision contending that the judgment should be supported also on the ground that the court was wrong in so holding.

Furthermore since the question of damages is not included in the ground of appeal to be argued, the issue of ex gratia compensation does not arise and cannot be an issue for determination in this appeal. The action having been filed by the appellants, the issues primarily for determination relate to their right to bring the action and whether they are entitled to succeed on the evidence in support of their claim.

It is not here disputed that the determination of the rights of the deceased is relevant to the determination of the rights of the appellants. It is also the basis and fundamental to the establishment of right of the Plaintiffs/Appellants. It is admitted, however, that it is ancillary to the right of the appellants. It is only relevant to establish that a wrong was done to Nasiru Bello their bread-winner. The cause of action and the primary issue is that the Appellants have lost their bread-winner through the wrongful act of the agents of the Defendant. This is where a determination of the secondary issue that is the wrongful act of Defendant becomes relevant. In my opinion the issues for determination are therefore not at large as was assumed in a number of the briefs filed. Accordingly a tidier and more precise formulation of the issues for determination consistent with the only ground of appeal filed should be confined to the rights of the Plaintiffs/Appellants as determined by the judgment of the Court of Appeal. It should read as follows:

  1. whether the writ of summons and statement of claim disclose a cause of action on the part of the Appellants?
  2. whether Appellants established their claim on the evidence before the court?
  3. whether the Court of Appeal was right to have dismissed Appellants’ claim on the grounds stated?

I therefore will adopt this formulation of the issues for determination which in my opinion adequately covers every conceivable issue that would he argued on the only ground of appeal filed.

This appeal is against the judgment of the Court of Appeal. Part of the reasons given for denying Appellants the relief claimed was that the endorsement on the writ of summons and averments in the statement of claim were incurably defective and were therefore incapable of disclosing a cause of action. The Court observed that Appellants did not comply with the provisions of the Law of Torts and therefore could not succeed on the claim before it on the basis of that law. In other words, the Court of Appeal was saying that if Appellants were relying on the provisions of the Torts Law for their claim, they must endorse their writ of summons appropriately and make such averments in their statement of claim as to bring them within the purview of its provisions. Having not done so, there has been no compliance with the provisions of the law relied upon, consequently their action must fail.

It is therefore necessary to examine the provisions of the Torts Law which defines the rights of the Appellants. 1 shall before doing so dispose of a minor issue concerning the reliance on the maxim ubi ius ibi remedium. It is common ground that the claim of the Appellants falls within the provisions of the Torts law. What is disputed is whether Plaintiffs by their endorsement on the writ of summons and averments in the statement of claim, have brought their claim within its purview. The Respondent has contended that Counsel did not in fact advert his mind to the Torts Law because his reliance on the maxim of ubi ius ibi remedium, (meaning where there is a right there is a remedy), suggested that he knew there was a right but that there was no remedy: and is asking the Court to provide one. That may well he the case. Even in such a situation the Court cannot in the discharge of its sacred duty to do justice be inhibited by the ignorance or carelessness of counsel. The injustice resulting to the cause of the litigant from such demonstration of ignorance or carelessness does not adversely affect Counsel whose fees remain undiminished. I think I am speaking the mind of all engaged in the administration of justice, not only in this court but in all courts in this country, that the day the courts allow the inarticulacy or ignorance of counsel to determine the result of an action before it, that day will herald the unobstrusive genesis of the unwitting enthronement of injustice aided by the court itself by default.

I think it is erroneous to assume that the maxim ubi ius ibi re-medium is only an English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the courts to provide a remedy whenever the Plaintiff has established a right. The Court obviously cannot do otherwise. It is enjoined to eschew reliance on technicalities in the determination of disputes – see State v. Gwonto & Ors (1983) 1 SCNLR. 142 at p. 160. The substance of the action rather than the form should he the predominating consideration. Appellants have relied on the decision of this Court in Falobi v. Falobi (1976) 1 N.M.L.R. 169. 171 to argue that even if the writ of summons and statement of claim had not specified a particular law under which the action was brought, the Court will give a remedy where the facts as disclosed fall within a remedy recognised in law. I think this is a correct principle deducible from Falobi v. Falobi (supra). (back to top?)

I now turn to an examination of the writ of summons and statement of claim in the light of the provisions of the Torts Law.

The Torts Law, Cap. 124. Vol. VI Laws of Oyo State. 1978 is entitled “A Law to provide for the compensation of the families of deceased persons killed by Accidents, to amend the law with respect to the Assessment of Damages therefrom and the law relating to contributory negligence and to proceedings against and contributions between Tortfeasors, and to abolish the defence of Common Employment.”

The long title of a statute is now accepted as an important part of it and may be relied upon as explaining its general scope and aids in its construction. (back to top?) Thus, in this case, the general scope of the Torts law as stated in the long title is inter alia to provide for the compensation of the families of deceased persons killed by accidents. However, in determining the meaning of the provisions of the law, it is to the section construed that the interpreter should first seek assistance. Where the meaning of the words used in the section are clear and unambiguous that meaning governs. Resort is only to be had to the long title to resolve ambiguity. It is not permissible to look at the scope of the long title to modify the interpretation of the plain words of the section. It is a well settled principle of the interpretation of statutes that the statute is to be read as a whole. The sections therein are to be construed together, with reference to the context so far as possible to make a consistent enactment of the whole statute.

Part I of the Torts Law contains the definitions of words in section 2. The words “damage” and “fault” have been defined. “Damage” is defined as “includes loss of life and personal injury”, thus suggesting that the definition is not exhaustive. “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.

Although the long title speaks of persons killed by accidents, the word accident is not defined, and section 3 of the Torts Law which provides for the situation when an action is maintainable does not use the word at all. Section 3 provides as follows:-

“Whensoever the death of a person shall be caused by the fault of any other person and the default 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 a felony: (Italics mine)

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 he commenced within three years after the death of such deceased person.”

The proviso to this section is not material to the facts of this case. There is no doubt that section 3 above does not limit the right of action to death resulting from accidents within the jurisprudential meaning of the word. An accident is the result of an unwilled act, and means an event without the fault of the person alleged to have caused it. Section 3 is completely different. It speaks of faults or default, defined in section 2 as negligence, breach of statutory duty, default or other act or omission, which gives rise to liability in tort. Section 3 indeed goes beyond that and includes death resulting “under circumstances as amount in law to a felony”, thus fault, civil or criminal is sufficient ingredient of the right of action as prescribed in Section 3. Accordingly, wherever the default of a person results in injury and death of another also results in damage to another, an action for damages all account of the fault or default is clearly maintainable. It is immaterial that death has been caused under such circumstances as amount in law to a felony.” Section 3 of the Torts Law seems to me to have provided that where the fault or default by a person even in circumstances amounting to a felony results in the death of another, an action for damages brought by his executors/administrators or dependants will lie if such action would have been available if such fault or default had not resulted in his death. It is clear that Section 3 of the Torts law covers the facts of this case.

It has been contended by the Respondent first that the Appellants have no cause of action because the claim arose from the death of a human being. They rely for this contention on the proposition by Lord Ellen-borough. C.J. in the early nineteenth century case of Baker v. Bolton (1808) 1 Camp. 493 which was approved with supporting historical reasons by the House of Lords in Admiralty Commrs. V. S.S. Amerika (1917) A.C, 38. In Baker v. Bolton (supra) it was laid down that “In civil court the death of a human being cannot be complained of as an injury’”

A short historical exposition of the background of the period when Baker v. Bolton (supra) was decided should give a clue to the entirely dissimilar circumstances to negative the application of the rule in this country. It appears to me that the harshness of this proposition must have prompted the creation of exceptions to it by the enactment of the Fatal Accidents Act in 1848; i.e. thirty-eight years afterwards. The rule is said to be based on the common law that an action for trespass is not allowed on facts which at the same time amounted to a felony. This principle was based on the prior claim of the king to that of the citizen, to the person and goods of the felon if convicted of the offence. This was at the time advantageous to the king. The claim of the king in the result of the prosecution of an offence would appear to be the source of two rules, namely (a) where a tort amounts to a felony the injured person cannot sue the tortfeasor for damages unless he has been prosecuted. This is known as the rule in Smith v. Selwyin (L9]4) 3 K.B. 98. This rule has now been considerably modified following realities of the facts to require a mere report to the prosecuting authority as sufficient – see Oloro v. Ali (1965) 3 All ER. 829. (b) In a civil court the death of a human being cannot be complained of as an injury. – This is the rule in Baker v. Bolton (supra) relied upon in this appeal. Holdsworth has pointed out that the statement of the law is not contained in the Year Books – see History of English 5th Ed. (1942) Vol. 111 pp. 330 – 336. He however traced the earliest express statement of the rule to Higgins v. Butcher in 1607. Yelv. 89, where Tanfield J said,

“If a man beats the servants of J.S. so that he dies of the battery, the master shall not have an action against the other for the battery and loss of the service, because the servant dying of the extremity of the batter, it has now become an offence to the crown, being converted into felony, and that drowns the particular offence and private wrong offered to the matter before, and his action is thereby lost.

Fenner and Yelverton J.J. concurred.

It is understandable that this should be the position in 19th Century England at a period when acquittal for felony was extremely rare, and the penalty of conviction for felony was death and forfeiture of the. goods to the Crown. It was inevitable at that time that such must be the conclusion. It was not possible to allow a cause of action in respect of injury which also constituted a felony. It involved a competition with the king for the goods of the tortfeasor. The question was whether the right of action was lost or merely suspended. Higgins v. Butcher (supra) would seem to support the view that right of action was lost. Even during this period there was the view that except in the case of murder, acquittal or conviction in indictment was a bar to an appeal. This was because trespass and indictment were alternative remedies. so that a conviction or acquittal upon an indictment was a bar to an action for trespass and vice versa. This was the view expressed by Jones J in Markham v Cobb W Jones at pp. 149, 150. This still does not answer the question of the position where death results from the default. In Cox v. Faxton, 17 vos. 329, Lord Eldon was in no doubt that the right of action was entirely lost.

The rule in Baker v. Bolton (supra) appears to cover two separate and distinct situations. First is that covered by the maxim actio personalis moritur cum persona. That is the action dies with the deceased and the personal representatives of the victim of a tort which has caused his death cannot sue in his representative capacity. Secondly, which is the case before us and clearly distinct, it makes it impossible for a Plaintiff to sue a defendant for a wrong committed by the defendant to the Plaintiff, when that wrong consists in damage causing the death of a person in the continuance of whose life the Plaintiff had an interest. It would appear that this second case is traceable to the loss of a cause of action because the facts amounts to the commission of a felony as was suggested in Osborn v. Gillett (1873) L.R.8 Exch. at p. 96.

It is important to observe that the rule was developed when the punishment for felony involved forfeiture of the goods of the convicted felon to the Crown thereby leaving nothing upon which to levy execution. These are now things of the past even in England. It was never the legal position in this country. If it is accepted, as it necessarily must be, that the cause of action lies in the fact of the death of the deceased which has resulted in damage to the Plaintiff who has an interest in the continuance of the life of the deceased, the argument that death cannot support a cause of action based on a different principle, is clearly of no moment. This is because the Plaintiff is claiming for injury done to him and not to the deceased. As I have already stated, the basis of the principle which is traceable to the preference which in the pecuniary interest, was given to the indictment over the action of trespass in England, no longer exists. There is therefore no reason why in this country a civil action which satisfies all the requirements of an enabling statute cannot lie. As Holdsworth pointed out.

“The rule as laid down by Lord Ellenborough is obviously unjust; it is technically unsound because as we have seen it is based on misreading of legal history, and yet it is the law of England today, for it was upheld by the House of Lords in 1917 in the case of the Amerika. The House of Lords attempted to justify its decision by an appeal to legal history. But the display of historical knowledge which was made on this occasion is an object lesson of hastily acquiring such knowledge for a special occasion, and in the consequences of neglecting this branch of legal learning.” – See History of English, Vol. III, p. 336.

The common law rule has in England been substantially altered by the Fatal Accidents Acts 1846 to 1959. These acts are not applicable to this case. The Torts Law having provided for identical situations, the Torts Law alone must govern.

It is also necessary to point out that the Court of Appeal was in error to hold that the Torts Law was limited to claims arising from death by accident, and that to succeed in the claim appellants were required to allege and prove negligence and that on allegation of unlawful or reckless killing did not satisfy the provisions.

I have analysed the legal effect of the words used in Section 3. The expression “under circumstances as amount in law to a felony” in Section 3, clearly involves the concept of intentional or reckless killing and goes beyond the concept of negligence which is recognised in the law of Tort. In fact it is capable of sustaining an action in trespass to the person. It seems to me the Torts Law borrowing the same expression from the Fatal Accidents Acts. 1846-1959 intended as the latter, to provide for the cases excluded from liability in Baker v. Bolton (supra). Thus, the death of a person can now be a subject matter of a claim for damages in our courts when the death complained of is as a result of the negligence of the defendant or intentional or reckless on his part. It is therefore acceptable to postulate that Section 3 of the Torts Law enables a claim for damages where death results from injury to a Plaintiff caused by the death of the Dependant. It is immaterial whether the default was negligent, or intentional or reckless. According[y, all the arguments addressed to us on the proposition that the death of a person caused intentionally or recklessly cannot. hut only when done negligently can give rise to a cause of action is not part of the law of Oyo State. The reasoning based on Baker v. Bolton (supra) is clearly preposterous and absurd. J therefore reject the contention that the rule in Baker v. Bolton is applicable to this case. The Court of Appeal was clearly in error in so holding. The principle was laid down in England at the dawn of the nineteenth century. Exceptions were engrafted on it by the middle of that century (see Fatal Accidents Act 1864 S.I.). It is unfortunate that it was reinforced in its pristine formulation in England in early 20th Century. It is unfortunate that a court of this country despite unequivocal indications to the contrary is seeking to perpetuate such an error founded on an ancient principle forsaken by developments in the social and legal conditions of its natal country. The rule has now been substantially altered by statute – see Fatal Accidents Acts 1959, 5.1(1). There is clearly no basis for its application in this country.

The next contention of the Appellants is that the Court of Appeal was wrong in holding that the writ of summons as endorsed and the averments in the statement of claim are so incurably defective as to be capable of disclosing a cause of action. The arguments of the learned Attorneys-General were also equally divided on this point. Counsel to the Appellants submitted that there are sufficient facts as disclosed from the writ of summons and pleadings to give rise to a cause of action. He submitted that the fact that the deceased died was not in dispute. It was also not in dispute that he was executed by the agents of the Defendant whilst he was in their custody pending the determination of his appeal against his conviction and sentence to death. It was also not in dispute that the Defendant was aware of the notice of appeal and the hearing date. The fact that Appellants are the dependants of the deceased was also pleaded.

On a careful examination of the writ of summons and the pleadings, it is clear that at the close of the pleadings and when the action was ripe for hearing, the Plaintiffs/Appellants had disclosed sufficient facts the existence of which will enable them to obtain from the court a remedy against the Defendant. A Plaintiff is required to state only the material facts upon which he relies to obtain relief or remedy against the Defendant. The writ of summons as endorsed, admittedly inelegantly, but still acceptable, stated that Plaintiffs were claiming N100,000 as damages for the illegal killing of their breadwinner whilst there was a subsisting appeal against his conviction and sentence for the offence of armed robbery with violence. The statement of claim in paragraphs 2,3,5,6 and 7 aver the circumstances of the injury which resulted in the death of the deceased and consequently the default, fault or breach of statutory duty required in 5.2 of the Torts Law. Paragraphs 10, 11, of the Statement of Claim aver the dependant status of the Plaintiffs. The Defendant in paragraphs 1, 5, 7 of the statement of defence admitted paragraphs 2 and 3 of the statement of claim, but deny that they were reckless, thereby joining issues as to that fact. The Defendants also denied paragraphs 1.6, 10.11 of the Statement of Claim. They would be deemed to have admitted paragraph 4 of the Statement of Claim alleging their knowledge of the pending appeal by the deceased against his conviction and sentence. The Defendants raised the defences of damnum sine injuria ex turpi causa non oritur actio lawful authority and limitation of liability. The proposition that a Plaintiff has no cause of action merely because the defence has a valid defence is clearly not acceptable. I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the Plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim – see Trower & Sons Ltd. v. Ripstein (1944) A.C. 254 at p. 263; Read v. Brown 22 Q.B.D. 128, Cooke v. Gill (1873) L.R.8 C.A. 107. Sugden v. Sugden (1957) All ER. 300: Jackson v. Spinal (lR70) L. R.5 C. P. 542. Concisely stated, any act on the part of the defendant which gives to the Plaintiff his cause of complaint is a cause of action. (back to top?)

There is no doubt that there are sufficient facts disclosed to enable Plaintiffs/Appellants to claim a relief under the provisions of the Torts Law. In my opinion Plaintiffs have pleaded the material facts on which they rely to obtain the relief claimed. It is these material facts that give rise to a cause of action. The question whether on the evidence adduced in view of the pleadings and the defence of the defendant the claim can be established is a different matter.

The Court of Appeal would seem to have misunderstood the criteria on which the Torts Law provided a relief for persons who came within its purview. In supporting the judgment of the Court of Appeal Counsel to the respondent and some amici curiae argued that Counsel for the Appellant did not appear to be sure on what head of the law Plaintiffs have brought their claim. It was contended that invoking the general principle of ubi ius ibi remedium is a clear demonstration that Appellants have left the court at large to devise a remedy. I have already stated that the writ of summons and statement of claim sufficiently disclose that the claim can be founded under the Torts Law. Even if this was not the case, I think this Court has attained a stature in its pursuit of justice that a claimant who has established a recognized injury cannot be turned back on the ground that he had not stated the head of law under which he was seeking a remedy. This is my understanding of Falobi v. Falobi (supra). Besides, the Respondent’s argument is predicated on the contention that the writ of summons has not used the appropriate words to describe the injury in respect of which he is claiming damages. This argument is reminiscent of the old forms of action of Common Law or the requirement in Fowler v. Lanning (1959) O. Q. B. 426, where it was stated that in an action for trespass to the person a Plaintiff must specifically state that the act was intentional otherwise no cause of action is disclosed. It was there stated that “it offends the underlying purpose of the modem system of pleading that a Plaintiff, by calling his grievance “trespass to the person” instead of “negligence” should force a Defendant To come to trial blindfold; and I am glad to find nothing in {he authorities which compels justice in this case to refrain from stripping the bandage attest from the Defendants eyes.”

The Torts Law has provided for liability in respect of default or breach of duty, whether the act resulting in death was negligent, intentional or reckless. The claim can be brought in both negligence and trespass to the person. It is therefore not caught by Fowler v. Lanning (supra). It is however important to recognize that the action under the Torts Law is sui generis devised to meet the peculiar circumstances slated therein. Accordingly we should be guided by the famous dictum of Lord Atkin in United Australia Ltd. v. Barclays Bank Ltd. (1941) A.C. 1 at p. 29 that

“When these ghosts of the past (meaning forms of action) stand in the path of justice clanking their mediaeval chains the proper cause for the Judge is to pass through them undeterred.” Fortunately, in this case the question of the description of how the Defendant caused the injury did not raise any doubts. The Defendant was alleged to have committed a breach of his duty towards the deceased, and unlawfully and recklessly caused the death of the deceased. Words by themselves have no magical effect. They merely serve as keys to open the mind of the reader or hearer. Certain words may he more effective. Such words do not entirely exclude other words. The words used by the writ of summons satisfy the provisions of the Torts Law. There is no need to invoke any esoteric words.

A lot of emphasis and considerable reliance was placed on the contention that the constitutional right of appeal of the deceased was violated and that gave rise to a cause of action to the deceased against the defendant which was available to the deceased if he had not died. The constitutional rights so violated are in respect of the right to exercise a constitutional right of appeal by virtue of Section 220(1); 213(1)(d) and the right to life in S.30 violated by his execution without authority. Section 220(1)(e) of the constitution provides:

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

Section 30(1) of the Constitution provides;

“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.”

It is strictly speaking unnecessary to discuss the point which has been decided in favour of the Appellants in both courts below. Furthermore there is no appeal against the finding.

I only wish to examine an aspect of the finding which has been ignored. There is no doubt a wrong has been done to the deceased by the Defendant. What then is the nature of the wrong done to him?

Surely the violation of his constitutional right to appeal is a violation of a personal right, the remedy of which can only be sought by the deceased himself. The grievance for the exercise of the right of appeal is such that is vested in the deceased alone and cannot in my opinion he exercised for and on his behalf by any other person. It is not certain whether a claim for damages arising therefrom survives the deceased. In my opinion the maxim action personalis moritur cum persona will apply to bar such action. On the other hand, action will lie for the violation of the right to life in Section 30 by or on behalf of any person who has an interest in the continued existence of the deceased. It is a cause of action separate and distinct from the cause of action that might have vested in the deceased himself or on his estate. In Seward v. Vera Cruz (1884)-85) 10 App. Cas. at p. 70 Lord Blackburn referring to the Fatal Accidents Act, 1846 said, “and I think that when that Act is looked at, it is plain enough that if a person dies under the circumstances mentioned when he might have maintained an action if it had been for an injury to himself which he had survived, a totally new action is given against the person who would have been responsible to the deceased if the deceased had lived; an action which as is pointed out in Pym v. Great Northern Railways Company is now in its species, new in its quality, new in its principle, in every way new…..” I agree with this statement of the law and adopt it. In my opinion, it is all this latter ground rather than the former, that an action within the provisions of the Torts Law can be founded. The action is in every way new.

It was also contended before us that the Court of Appeal was wrong to hold that Plaintiff/Appellants who were neither executors nor Administrators of the Estate of the deceased and having not pleaded their grounds for bringing the action did not comply with the provisions of Section 4 of the Torts Law and were therefore not proper before the Court. Counsel for the Appellants referring to the provisions of Section 4 and particularly to the proviso thereof of the Torts Law, submitted that the action was brought after six months of the death of the deceased, and were, in the absence of any action having been brought by any executor or administrator of the estate entitled to bring the action.

Section 4 of the Torts Law provides as follows:

“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 damage 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 he divided amongst the before-mentioned parties in such shares as the court by its judgment shall find and direct;

Provided that if there shall be 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.”

I have already referred to the statement of claim where the Plaintiffs were referred to as the dependants. There was also the evidence of Aliu Bello, 1st Plaintiff and only Plaintiff’s witness, of the sum the deceased spent monthly in the maintenance of the dependants. There was no contrary evidence that the dependence of the dependants was permanently terminated by any other act than by the wrongful execution of the deceased by the defendant. Although the deceased was under a conviction and sentence of death, there was the hope, based upon his appeal against the conviction that they could continue enjoyment of his financial support. It was for this reason that Plaintiff! Appellants were interested in the continued being of the deceased. Since Appellants are his dependants they come within the proviso to Section 4. There was no evidence that Executors or Administrators were appointed following death of the deceased. It is also clear from the pleadings that this action was brought after six months of the death of the deceased.

It was contended by the Respondent that the Plaintiff/Appellants should have, in their statement of claim, averred the fact that they brought the action after six months in the absence of the appointment of Executors or Administrators within six months. I do not consider this criticism to have had due regard to the averments in the statement of claim. The averment in the statement of claim sufficiently disclosed the facts necessary to bring the Plaintiffs within the provision of Section 4 of the Torts Law. The full particulars of the persons for whom the action was being brought, namely, the Plaintiffs/Appellants and the nature of their claim are sufficiently disclosed on the statement of claim. I, therefore, am of the opinion that Plaintiffs/Appellants have satisfied the provisions of Section 4 of the Torts Law.

Finally, it is necessary to consider the finding of the Court of Appeal that Plaintiffs/Appellants have not averred any facts from which the negligence of the defendants can he inferred. The Court correctly held, reversing the trial Judge on this point, that it was not necessary to plead res ipsa loquitur. I have already stated that Section 3(1) of the Torts Law did not confine liability to the negligence of the defendant. Liability includes intentional and reckless wrong doing. Negligence may be specifically alleged as averred or deduced from the averments of the injury complained of. However where negligence is alleged, which is not so in this case, the well settled rule is that the onus is on the Plaintiff to prove and not for the defendant to disprove it. It is well settled that the breach of the duty of care owed by the defendant to the Plaintiff which results in injury to the latter gives rise to an action in negligence for damages. It is often difficult in some cases to prove liability. Where damage results from injury caused to another in such a manner that the person injured is unable to show how the injury has been caused, it is sufficient for the injured to show that the injury could not have happened unless there was want of care – see Scott v. London & St. Katherine Docks (1865) 3 H.R.C. 596. 601: Byne v. Boadle (1863) 2 H.3C.722, Southport Corpn. v. Esso Petroleum Co. Ltd (1953) 3 W.L.R. 773,781. However the principle does not apply where the circumstances of the injury can be explained. See Barkway v. South wales Transport Co. (1950) 1 ALL ER. 392, 395. In such circumstances the onus is on the defendant to show that the injury was not a result of want of care on his part. – see Bennett v. Chemical Construction (G.B.) Ltd. (1971) 3 All E.R. 322. This is the effect of the application of the principle of res ipsa loquitur. The principle operates where (a) the injury is caused by factors or things under the management and control of the defendant as his agent, and (b) in the ordinary cause of events the injury should not have happened unless there was, want of care. Where the principle applies, it affords reasonable evidence of negligence and in the absence of reasonable explanation by the defendant, the claim of the Plaintiff is entitled to succeed.

The deceased whose death is the cause of complaint was convicted of an offence and sentenced to death. He was at all material times in the custody of the defendant. He was eventually executed on the 5th September, 1981 by a firing squad who are agents of the defendant at a time the execution of the judgment of conviction and sentence of the deceased was suspended by virtue of the appeal filed against it. The defendant is the only person to explain how in the circumstances the execution of the judgment suspended, pending the determination of the appeal against it was carried out. The Defendant has failed to discharge this burden and is therefore presumed to have been negligent in the execution of the deceased. The principle res ipsa loquitur therefore applies to the facts of this case. The concurring findings of negligence in the two courts below cannot stand in view of the obvious misconception of both the issues in the case and the facts necessary to support a claim under the Torts Law. I therefore have no hesitation from the above analysis to set them aside.

I am therefore satisfied for the reasons I have given in this judgment that Plaintiffs/Appellants have a cause of action arising from the death of their bread-winner. I am also satisfied that the Defendant is liable to the Plaintiffs/Appellants for the death of their bread-winner. I also hold that the Court of Appeal was clearly in error to have dismissed the appeal of the Appellants. The Appeal of the Appellants is hereby allowed. Appellants have not appealed against damages, consequently the damages awarded by the trial Judge which was not interfered with by the Court of Appeal stands.

Respondents shall pay costs assessed at N300 to the Plaintiffs/Appellants.

KAWU, J.S.C.: I have had the privilege of reading in draft the lead judgment of my learned brother, Bello, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and conclusions, and for the reasons stated in the said judgment, I too will allow the appeal.

The undisputed facts in this unfortunate case are that on 30th October, 1980, Nasiru Bello was, in the High Court at Ibadan, convicted of the offence of armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 as amended by the Robbery and Firearms (Special Provisions (Amendment) No 8) Decree of 1974, and sentenced to death. On 12th November, 1980, within the period prescribed by law, he filed his notice of appeal in the Court of Appeal and a copy of the notice was served on the Attorney-General of Oyo State. It is also common ground that on 21st April. 1981 a copy of the records of appeal was also served on the Attorney-General. However, while Nasiru Bello’s appeal was pending his execution was recommended by the Attorney-General and he was consequently executed by a firing squad on 5th September, 1981.

In my view the execution of Nasiru Bello during the pendency of his appeal was a wrongful act. It was also a flagrant violation of his constitutional rights of appeal under Sections 220(1)(c) and 213(2)(d) of the 1970 Constitution. By his premature execution, Nasiru Bello’s fundamental right to life under Section 30(1) of the Constitution was also violated.

Now, given the facts leading to the premature execution of Nasiru Bello, had the appellants, his dependants, any cause of action against the Respondent?

Both the trial court and the Court of Appeal, relying on the English case of Baker v Bolton (1808) I Camp. 493 and the decision in Admiralty Commissioners v. S.S. Amerika (1917) A.C. 38, said they had none. With regard to the Torts Law of Oyo State Cap. 124 of 1978, both courts also held that since the appellants did not comply with the provisions of the law, they could not succeed in their action on the oasis of that law. I think they were wrong. It is my view that the plaintiffs/appellants writ of summons and their pleadings, together with the defendant’s admissions in the Statement of Defence disclosed sufficient facts to ground an action against the respondent under the Torts Law of Oyo State. I am therefore of the view that the Court of Appeal, with the greatest respect, was in error, when it upheld the submission of respondent’s counsel “that 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 and it cannot therefore succeed on that basis.” For the above reasons and for the fuller reasons of my learned brother Bello, J.S.C. in the lead judgment I am of the view that this appeal ought to be allowed, and it is hereby allowed. I will abide by all the orders made in the lead judgment, including the order as to costs.

OPUTA, J.S.C.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother and presiding Justice – Bello, JSC. I am in complete and total agreement with his incisive reasoning and well considered conclusions. As was observed in the lead judgment this case aroused a good deal of public interest; it raised an important constitutional issue as to the right to life of a criminal convicted by the High Court and executed by the orders of the Oyo State Government during the pendency of his appeal to the Federal Court of Appeal (now Court of Appeal). It also raised the legal issue of the quo warranto of his dependents to sue (because of his death) for damages in a civil Court. Because of the above, the Court invited the Attorney-General of the Federation and the Attorneys-General of the States to appear, file briefs of argument and address the Court as amici curiae. Fourteen Attorneys-General responded. Seven supported the Appellants namely Anambra, Imo. Kaduna, Kwara. Niger, Benue and Kano. Seven supported the Respondent. These were the Attorneys-General of the Federation and the Attorneys-General of Oyo, Bendel. Rivers. Cross River, Plateau and Ondo. As the amici curiae were evenly divided, as many legal maxims and principle were freely canvassed and vigorously agitated it is just right and proper that there be the widest discussion by the 7 Justices of the Court, of the various issues raised which were beautifully and skillfully dealt with in the lead judgment. My own comments are merely designed to emphasize further the points so ably made in the lead judgment.

Before embarking on the semantics of whether the killing of Nasiru Bello was illegal or unlawful or merely wrongful, I will like to start first of all with the facts because it ultimately will he upon those facts and the surrounding circumstances that any meaningful resolution of all the issues in this case has to be made. One is not bound to travel beyond the facts of the case as stated in the Writ. the pleadings and the evidence. But the issues of imperfect and/or insufficient pleading, of Res Ipsa Loquitur, (raised by one of the judgments of the Courts below) of whether the Plaintiffs/Appellants can sue for and recover damages in respect of the death of their bread-winner. Nasiru Bello, of the maxim ubi jus ibi remedium, will all in the final analysis, depend on the factual situation of this sad and unfortunate case. What then were the facts upon which the Plaintiffs now Appellants rely? The Writ of Summons at page 2 of the record of proceedings was:-

“The Plaintiffs’ claim against the defendant is for N100.000 as damages for illegal killing of their bread-winner. Nasiru Bello, who was convicted of armed robbery by Mr. Justice Apara sitting at the Ibadan High Court on 30th October 1980. The convict filed his notice of appeal to F.C.A. on 12th November, 1980 i.e. within time. Records of appeal were received in April. 1981. Surprisingly and without any prior notice, the convict was publicly executed on 5/9/81 at Ibadan before the Federal Court of Appeal, Ibadan, could entertain the appeal…The Government of Oyo State of Nigeria killed the appellant while he had a subsisting valid appeal … The plaintiffs shall rely on the doctrine “where there is a right, there is a remedy.”

The essential facts in the Writ of Summons above were pleaded in the Plaintiffs’ Statement of Claim. The facts that Nasiru Bello was convicted of armed robbery on 30/10/80 and that he filed his appeal to the Federal Court of Appeal within time on 12/11/80 were pleaded in paragraphs 2 and 3 of the Statement of Claim and admitted in paragraph 1 of the Statement of Defence. By the rules of pleading, these two important facts are thus regarded as proved and no further evidence need be led to prove them at the trial. Paragraphs 5 and 7 of the Statement of Claim averred recklessness on the part of the Defendant in recommending to the Governor of Oyo State the execution of Nasiru Bello “despite his subsisting valid appeal.” The Defendant in paragraph ~ of his Statement of Defence admitted paragraphs 5 nod 7 of the Statement of Claim with the qualification that the recommendations made to the office of the Governor in respect of the condemned armed robber was neither reckless, barbaric or malicious.” Again by the rules of pleading, since the Defendant admitted recommending to the Governor:

(i) the execution of Nasiru Bello;

(ii) during the pendency of his appeal in the Federal Court of Appeal, those two facts are regarded as proved. Whether the recommendation was reckless, barbaric or malicious will, in the m(tin be a question of inference from admitted facts. The maxim res ipsa loquitur will merely cast the onus of proof that his recommendation in the surrounding circumstances of this case was neither negligent (reckless is just a higher degree of negligence) nor barbaric nor malicious on the Defendant/Respondent:- Duncan v. Cammel Laird & Co. Ltd. (1946) A.C. 401. The essential facts of this sad and horrendous case namely – the conviction of Nasiru Bello, his appeal within time and his execution during the pendency of that appeal – all these not in dispute. They are common grounds. It is against the background of these undisputed essential facts that all the issues of law that may arise in this appeal ought to he considered. I will now proceed to comment on some of the important issues postulated/agitated in the various briefs and further elaborated in the oral argument of the various Attorneys-General.

Issue No. 1: Was the premature execution of Nasiru Bello, a convicted criminal, during the pendency of his appeal to the Federal Court of Appeal, constitutional or unconstitutional? A subsidiary issue will be the question whether or not a convicted criminal has any rights at all? A cursory glance through the provisions of our 1979 Constitution, our Supreme and fundamental law, eloquently argues against the contention that a convicted criminal is, as it were, an outlaw, bereft of all rights, who can thus be executed at the whims and caprices of the Oyo State Ministry of Justice and the Oyo State Governor. The 1979 Constitution itself gave Nasiru Bello by its Section 220(1)(e) an unconditional and an undisputed right of appeal to the Federal Court of Appeal (as it was then called) and a further right of appeal if necessary to the Supreme Court of Nigeria. Section 213(2) refers. Surely the right of appeal conferred on Nasiru Bello by these two sections (S.220(1)(e) and S.213(2)(d) will he empty and meaningless if he is to be executed before his appeal is heard. The Constitution cannot confer a right which cannot be exercised. This Constitutional right of appeal of Nasiru Bello imposed on the Defendant now Respondent a public and statutory duty to ensure that Nasiru Bello was not disturbed in the exercise or enjoyment of that right. Nasiru Bello was not only disturbed in the enjoyment of his constitutional right of appeal but also his right to life pending the outcome of his appeal was completely and totally destroyed by his premature execution. This premature execution offended against Section 30(1) of the 1979 Constitution. It did more than that. It paralysed and destroyed Nasiru Bello’s constitutional right of appeal and foisted on the Federal Court of Appeal a situation of complete helplessness. There is no, and there cannot be any, argument about the unconstitutionality of Nasiru Bello’s premature execution.

Issue No.2: Was that execution in addition to being unconstitutional – illegal or unlawful or wrongful or all Three? This issue was hotly contested and opinions of the Attorneys-General differed. Let us look at the meanings attached to these various words:

Illegal: This expression primarily refers to an act which the law directly forbids as to commit a murder or obstruct a highway. An illegal act subjects the doer to the penalties imposed for the infraction, such as sanction in a criminal court – see Earl Jowitt: The Dictionary of English Law p. 935.

Unlawful: The same Earl Jowit at p. 1808 defines unlawful – “unlawful” and “illegal” are generally used as synonymous terms, but a distinction is occasionally drawn between them; unlawful as applied to promises, agreements, considerations and the like, is sometimes used to denote that they are ineffectual in law because they involve acts which, although not illegal (that is to say positively forbidden) are disapproved of by the law and are therefore not recognised as a ground of legal rights either because they are immoral or because they are against public policy.

But in Blacks Law Dictionary 51h edition p. 673 the expression illegal is simply defined as “against or not authorised by law” and unlawful as “that which is contrary to, prohibited or unauthorized by law. That which is not lawful while necessarily not implying the element of criminality, it is broad enough to include it.” If according to Earl Jowitt unlawful and illegal are synonymous terms and according to Black unlawful, while necessarily not implying the element of criminality, is broad enough to include it; then it follows that all the fuss and heated argument over the distinction between “illegal” and “unlawful” is a mere play on words. An unlawful killing of a human being under Section 315 of the Criminal Code Act is a criminal offence (either murder or manslaughter). Such unlawful killing is also an illegal act. Is it not then just 6 of one and half a dozen of the other? Depending on the context in which the words “illegal” or “unlawful” are used it is plain that an “illegal killing” is also an “unlawful killing” and that an “unlawful killing” is an “illegal killing.”

The trial court at p. 19 of the record held:-

“As I stated earlier in this judgment, Nasiru Bello exercised his undoubted right of appeal soon after his conviction by the Ibadan High Court but before his appeal came up for hearing before the Federal Court of Appeal he was executed by the Oyo Slate Government on the recommendation of the State Ministry of Justice. The execution is in my judgment wrongful because it deprived the deceased of his constitutional right of having his appeal determined by the Federal Court of Appeal and if need be by the Supreme Court as provided by the Constitution – Section 213(2)( d)” (Italics mine).

It is important to mention that there was no appeal by the Respondent against the trial Court’s finding of fact that the execution of Nasiru Bello was wrongful.

The Court of Appeal at p. 29 of the record (when Nasiru Bello’s appeal came before it) observed:-

“I feel compelled to say at this stage that the tragic story told of the execution of the appellants through inadvertence is to say the least disconcerting, shocking and revolting. Indeed as far as I am aware, it is unprecedented. Even without a detailed information as to the facts and circumstance which gave rise to such inadvertence, the information so far volunteered is enough to suggest that someone somewhere has been grossly negligent or utterly diffident in the performance of his duty” (The italics mine)

The position then is that the trial Court found Nasiru Bello’s execution wrongful and the Court of Appeal (when Nasiru Bello’s appeal came before it) found that the admitted “inadvertence” of the Defendant/Respondent amounted to gross negligence. The premature killing of Nasiru Bello in the surrounding circumstances of this case was both unlawful and illegal. It was also wrongful in the sense that it was injurious to the rights primarily of Bello to life and secondarily of his dependants who by his death lost their bread-winner; it was heedless in the sense that it was premature and unconstitutional; it was unjust in the sense that he (Nasiru Bello) was not allowed a just determination of his appeal by the Federal Court of Appeal; it was reckless in the sense that it was done in complete disregard to all the constitutional rights of the deceased, Nasiru Bello. It is against the above background that I now intend to consider the other legal issues in this appeal.

Issue No.3: Did the Claim of the Appellants in this case suffer from an incurable formal defect and, if no, did that claim disclose a cause of action under the Torts Law of Oyo State Cap 124 of I978?

At p. 21 Lines 1610 20 of the record of proceedings, the learned trial judge after referring to Baker v. BollOI1′(1808) 1 Camp 493 and Admiralty Commissioners v. S.S. Amerika (1917) A.C. 38 at p. 59 observed:-

“It is clear…….that the death of a person cannot be the subject of a complaint in a civil Court except such action is formulated under the Torts Law. Regrettably however, this action is not so commenced.” (Italics mine)

Here the trial Court was quarrelling with the formulation of this action – the form the action took. The Court of Appeal at pages 72 and 73 of the record reviewed all the objections of the Respondent’s counsel to the action and concluded:-

“Finally, he submitted that the fact that the Appellants relied 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.”

The Court of Appeal at p.73 of the record then held:-

“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 herein before set out (which I do not intend to repeat) are incurably defective.”

From the above comments of the two Courts, the question naturally arises What form should a plaintiff suing under the Torts Law of Oyo State of Nigeria employ in order to have his “action properly formulated?”

My only comment here is that when we, in 1982, (when this action was filed) start talking about the form an action should take we are going backwards not forward. We are going backward to the period before 1852 when a plaintiff had to bring his action within a recognized form of action, and the key-note of the form of action was struck by the original writ whereby the action was begun. But in 1852 the Common Law Procedure Act provided that “it shall not be necessary to mention any form or cause of action in any writ of summons.” And 1873 the Judicature Act abolished all forms of action. The present position is that a cause of action means the factual situation which entitles one person to obtain a remedy from another person in the Courts: Letang v. Cooper (1965) 1 Q.B. 232 at pp. 242/243. The important issue in this appeal is- Do the admitted facts of this case (which I listed at the beginning of this judgment) give the Appellants a cause of action under the Torts Law of Oyo State? That is the crux of the matter and it does not matter that the Appellants in their writ of summons and their statement of claim averred that the plaintiffs shall rely on the doctrine “where there is a right, there is a remedy. “Relying on the form the Appellants pleadings took and not considering and emphasizing the factual situation of the case is to allow forms of action which we have buried since 1873 to rule us from their graves, and form foreign graves at that Lord Atkin was right when he emphasized that “when th3ese ghosts of the past stand in the path of justice clanking their medieval chain the proper coruse for the Judge is to pass through them undeterred.” – United Australia Ltd. v. Barclays Bank (1941) A.C. 1 at p. 29. It does not matter how irrelevant the pleadings of the Appellants was, its paucity notwithstanding, this case will stand or fail on the admitted facts, and on the primary obligation of our Courts to do substantial justice.

The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms and formalities, nor in technicalities, nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and all its technical rules ought to he hut a handmaid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed, only serve to render justice grotesque or even lead to outright injustice. The Court will not endure that mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the case before it. I will here cast my lot with my learned brother Eso. J.S.C. who in the State v. Gwonto (1983) 1 S.C.N.L.R. 142 at p. 160 postulated that:

“The Court is more interested in substance than in mere form. Justice can only he done if the substance of the matter is examined. Reliance on technicalities leads to injustice.”

What then are the factual situations required to ground an action under the Torts Law of Oyo State Cap 124 of 1978″ Section 3 of the Torts Law requires:

  1. Death of one person (here Nasiru Bello)
  2. That death should be caused by fault of another person (here the fault of the defendant).
  3. The factual situation reflected and produced by heads 1 and 2 above will give the deceased if he were alive a right of action against the Defendant/Respondent and if he were dead make the Defendant/Respondent liable in an action for damages brought by his (deceased person’s) dependants.

Again section 2 of the Torts Law defined fault to mean “negligence, breach of statutory duty, default or other act of omission which gives rise to a liability in tort ….” Now recklessness which was pleaded in paragraph 5 of the Statement of Claim is nothing but negligence with an element of aggravation.

In this case on appeal the fact that Nasiru Bello appealed against his conviction and sentence imposed statutory duty on the Defendant (to quote the memorable words of Coker, J.S.C. in Vaswani Trading Company v. Savalakh (1972) 12 S.C.?? at p. 82 “not to destroy the subject matter of his appeal or foist on the Federal Court of Appeal a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse in one way or the other the exercise of the litigant (here Nasiru Bello) of his constitutional right of appeal or generally provides a situation in which whatever happens to the case, and in particular even if the appeal succeeds in the Court of Appeal there could be no return to the status quo. “The premature execution of Nasiru Bello did all these. In his brief of argument at p.2 of the record the Hall. Attorney-General for Oyo State admitted that “The premature execution of the appellants (sic) was due to administrative error in the Ministry of Justice.” This is a devastating acceptance that the Defendant/Respondent was in breach of his statutory duty or was to say the least negligent. The semantics about whether the premature killing of Nasiru Bello was illegal or unlawful or just wrongful thus becomes a mere play on words in view of the definition of fault in section 2 of the Torts Law of Oyo State and the admission of “an administrative error” by the Respondent. Fault as defined by Section 2 of the Torts Law has been tacitly admitted by the Respondent who euphemistically described his negligence as an “administrative error.” Sadly enough it was an error that deprived Nasiru Bello not only his constitutional right of appeal hut also his constitutional right to life. As I observed earlier on, the trial Court found the recommendation of the Respondent leading to the premature execution of Nasiru Bello wrongful and the Court of Appeal at p. 29 Line 10 described it as grossly negligent.

The next question that arises under the Torts law of Oyo State is: Have the Appellants a locus standi to prosecute this case? By Section 4 of the Torts Law Cap 124 “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.” By the proviso to section 4 where there has been no executor or administrator 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 tl1en and in every such case such action may he 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…….” Shorn of its verbiage and prolixity the proviso simply means that an action under the Torts Law Cap. 124 should primarily be brought by the execution or administrator of the estate of the deceased. If no such action is brought within six calendar months or if there are no executors and/or administrators as envisaged then the beneficiary or beneficiaries can institute the action. The learned trial judge at p. 24 of the record found:

“There is evidence before me that the 2nd, 3rd, 4th and 5th plaintiffs are his children. Their ages range between eleven and one and 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…”

From the above the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 11th and 14th plaintiffs as the deceased person’s dependants can under the proviso to section 4 above bring this action.

Nasiru Bello was executed on 5/9/81. This case was filed on 17/6/82, 9 months and 12 days after the killing of their breadwinner. There was nothing in the pleadings of either party or from the evidence to show that there was any executor/executors or administrator/administrators of Bello’s estate. If such existed he or they should have sued for the benefit of the dependants. After 6 calendar months of his (Nasiru Bello’s) death the proviso to Section 4 of the Torts Law then permitted the beneficiaries or dependants to sue directly. The case of Ingall v. Morgan (1944) 2 K.B. 160 cited to the Court below has no relevance whatsoever to the facts of this case. in my view all the plaintiffs whom the trial Court found to be the dependants of Nasiru Bello complied with all the relevant sections of the Torts law namely sections 2, 3 and 4. The Court below, with the greatest respect, was therefore in serious error, when it upheld at p. 73 the submission of learned counsel for the Respondent “that in so far as the claim before the trial Court purports to he based on the Torts Law, its many provisions have not been complied with and it cannot therefore succeed on that basis.”

The lead judgment of Uche Omo. J.C.A. at p. 73 of the record commented:-

“The defendant owed a duty of care not to injure the deceased, and if that duty is breached and death results, his administrators can claim under the Torts law. He does not owe any duty of care expressed in negligence or indeed in civil law Not To Kill. An illegal killing normally gives rise to sanction under the criminal law. The rule in Baker v. Bolton referred to earlier shuts out any claim by relation/personal representative administrator that sounds in damages.”

Again, with the greatest respect, the passage quoted above does seem to be a futile attempt to resurrect the moribund and common law maxim actio personalis moritur cum persona. That old common law rule has been relegated into legal limbo by the English Law Reform (Miscellaneous Provisions) Act of 1934. Let it stay quietly there. Also the Court below seems not to have fully grasped the impact, the import and the extent of the liability created by the Torts Law of Oyo State Cap 124. That law like the English Fatal Accident Act 1976 and our own Nigeria Fatal Accident Act and Laws set out purposely to make the death of a human being actionable in a civil Court for damages. That law (the Torts Law) had therefore substantially altered and rendered completely impotent and ineffective the rule in Baker v. Bolton and the decision of the House of Lords in Admiralty Commissioners v. S. S. Amerika (1917) A.C. 38. By the Torts Law of Oyo State the death of a human being is actionable if what is defined as fault in Section 2 of the Law is established against a defendant and the provisions of sections 2 and 4 of B that law are complied with. The English case of Rose v. Ford (1937) 3 A. E. R. 359 at p. 366 confirmed that the common law rule in Baker v. Bolton can be changed by statute as was done by the Fatal Accident Act of 1934.

I have considered each of the relevant sections of the Torts Law Cap 124 earlier on in this judgment and arrived at the conclusion then Nasiru Bello was prematurely executed through the fault or default of the Defendant/Respondent who was obviously in breach of his statutory duty not to interfere with the constitutional right of the said Nasiru Bello to prosecute his appeal pending in the Federal Court of Appeal and his right to life until he had exhausted all the legal processes the law placed at his disposal namely a further appeal to the Supreme Court and the result of the recommendation of the Advisory Council on the Prerogative of Mercy.

Also in relying on Clerk and Lindsell on Torts (14th edition) paragraph 422 at p. 275 and the case of Ingall v. Moran (1944) 2 K.B. 160 the Court below was importing into the plain words of Sections 2, 3 and 4 of the Torts Law of Oyo State words and concepts which cannot be found there and which will alter their operative effect. In West Derby Union v. Metropolitan Life Assurance Society (1897) A.C. 647 Lord Hershall at p. 655 warned seriously against that mode of interpretation and Lord Davey in the same case castigated what he called ••the old and apparently ineradicable fallacy of importing into an enactment which is expressed in clear and apparently unambiguous language something which is not contained in it.” There is nothing in the Torts Law of Oyo State that makes it mandatory for the Plaintiffs/Appellants to aver or prove that they were suing as administrators. The fact is that they were not suing in that capacity. It was not necessary therefore for them to tender any letter of administration. The Torts Law of Oyo State also did not make liability dependent upon nor based on accidental killing. The Fatal Accident Act or Laws might have dune that, but not the Torts law Cap 124 where the essential elements of liability is fault as defined in its Section 2. In paragraph 11 of the Statement of Claim, the Plaintiffs/Appellants alleged that they were dependants of Nasiru Bello and the trial Court found that 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 11th and 14th Plaintiffs were such dependants. The Court of Appeal was bound by that finding since there was no appeal against it by the Respondent. The Torts Law did not require the Plaintiffs/Appellants to set out ‘•the full particulars of their dependency”• on the deceased. May be under the Fatal Accident Act that was required but certainly not under the Torts Law Cap 124.

Finally, it is not correct that the mere fact that “the Appellants relied on the maxim “ubi jus ibi remedium” shows that they never adverted their minds to the Torts Law and never based their claim on it.” Holt, C.J. in the now famous case of Ashby v. White (1703) 2 Ld Raym 938 postulated the principle that “if the plaintiff has a right he must of necessity have the means to vindicate it, and a remedy, if he is injured in the enjoyment or exercise of it; and indeed, it is a vain thing to imagine a right without a remedy; for want of right and or remedy are reciprocal.”: The maxim ubi jus ibi remedium is simply the latin rendition of the above principle. The maxim is so fundamental to the administration of justice that where there is no remedy provided either by the common law or by statute the Courts have been urged to create one. The Courts cannot therefore be deterred by the novelty of an action. They usually look at the facts. If from those facts a Court is satisfied:

(i) that the defendant was under duty to the plaintiff;

(ii) that there was breach of that duty;

(iii) that the defendants suffered legal injury;

(iv) that that injury was not too remote.

If all these factual situations exist the Court will surely provide a remedy. That was why Denning, M.R. in Packer v. Packer (1954) P. 15 at p. 22 was able to assert:

“What is the argument on the other side? Only this that no case has been found in which it had been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will sand still whilst the rest of the world goes on and that will be bad for both.”

The law is an equal dispenser of justice, and leaves none without a remedy for his right. It is thus a basic and elementary principle of the common law that wherever there is a wrong, legal wrong or injuria that is, there ought to be a remedy to redress that wrong. Ubi jus ibi remedium is thus essentially a common law principle.

The learned Attorney-General of Anambra State during his oral argument in elaboration of p.9 of his brief requested the Court to follow up the step it courageously took in A.G. Kaduna State v. Hassan (1985) 2 N.W.LR. 483 and grant the relief sought by the Appellants. This request was predicated on the Court holding the view that the Appellants did not come properly under the Torts Law of Oyo State. Now having held that the factual situations in this case afforded the Plaintiffs/Appellants a cause of action under the Torts Law of Oyo State, the request made by the learned Attorney-General of Anambra State becomes redundant and unnecessary. Lindley. M.R. was right when he emphasized:-

“I know of no duty of the Court which it is more important to observe, and no powers of the Court which it is more important to enforce, than its power of keeping public officials and public bodies within their rights. The moment public bodies exceed their rights they do so to the injury and oppression of private individuals, and those persons arc entitled to be protected from injury arising from such operations of public bodies,’” Roberts v. Gwyrfai District Council (1899) L.R.2 Ch.D. 614.

In this case “the administrative error” of the Ministry of Justice Oyo State has produced a shameful, utterly disgusting, and tragic result namely the premature execution of Nasiru Bello during the pendency of his appeal to the Federal Court of Appeal. The dependants of Nasiru Bello are entitled to be redressed for the injury they suffered by the loss of their bread-winner, a loss occasioned by the “inadvertence” or ‘administrative error” of the Defendant/Respondent and his Ministry of Justice which has produced this injustice. Here the Torts Law Cap 124 reaffirmed the principle – ubi jus ibi remedium.

For all the reasons given above and the fuller reasons in the lead judgment with which I am in complete agreement, and which I now adopt as mine, I. too, will allow this appeal and set aside the judgment of the Court below as well as that of the trial Court. I will abide by all the consequential orders made in the lead judgment.

BELGORE, J.S.C.: I had a preview of the judgment of my learned brother, Bello, J.S.C., with which I agree entirely. I agree that the judgment of the Court below be set aside and I abide by the orders made by my learned brother.

Appeal Allowed.

Appearances

Mr. S.A. Bello (with him Mr. J.O. Ijaodola For the Appellants

Mr. Fabunmi, Attorney-General of Oyo State, Mr. R.A. Ojofeitimi and M. O. Okere with him For the Respondent

 

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