BELLO & ORS V. A-G. 0Y0 STATE
| Pages | 1257-1302 |
BELLO & ORS V. A-G. OYO STATE
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BELLO & ORS V. A-G. OYO STATE
ALIU BELLO & 13 ORS
APPELLANTS
V
10 A-G., OYO STATE
RESPONDENT
SUIT NO. SC 10
4
/
1
985
SUPREME COURT OF NIGERIA
BELLO,
J.S.C.
ANIAGOLU,
J.S.C.
15
COKER,
KARIBI-WHYTE,
KAWU,
OPUTA,
BELGORE,
20 5th December, 1986
J.S.C.
J.S.C.
J.S.C.
J.S.C.
J.S.C.
Constitutional Law - Right to Life - right to prosecution of pending appeal -
Execution of deceased before determination of his appeal against conviction
and sentence - Constitutes infringement of his constitutional right - To life
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until determination of appeal and of right to prosecute appeal - Also contravention
of constitutional prohibition against execution while appeal still pending -
Interpretation of statutes - Necessary modification of existing law to conform
with provisions of constitution - Absence of provision in Criminal Procedure
Code (Oyo State) for stay of execution of death sentence pending appeal
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against conviction - Right of stay to be inferred from constitutional right of
condemned person to appeal.
Practice and Procedure - Cause of Action - If any - claim as dependants of
deceased person for damages for illegally causing death - Claim based on
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doctrine of ubi jus ibi /medium not on Torts Law (Oyo State) - Effect -
Claim dismissed by trial judge as disclosing no cause of action on grounds
that under rule in Baker v. Bolton no damages recoverable at
common
Law
for wrongly causing death of person and only claims wising from death by
accident maintainable under Torts Law.
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Tort - Inapplicability of ntle in Baker v Bolton in Nigeria - Scope of Torts
Law not limited to accidental death - Includes death caused by criminal act
or breach of statutoty duty - Pleadings - Statement of claim - If requirements
of Torts Law (Oyo State) satisfied - Causing death of person by fault
-
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Right of action under Torts Law (Oyo State) - Entitlement of deceased's
dependants to institute action against government in absence or on failure of
executor or administrator of deceased to do so within 6 months - No evidence
of appointment of executor or administrator for deceased - Claim filed by
dependants more than 6 months after deceased executed - Claim properly
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filed.
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NIGERIAN SUPREME COURT CASES
[1986] 2 N.S.C.C.
Words and Phrases - "Fault in S.2 of Torts Law (Oyo State) - Definition
including breach of stale government's duty to preserve condemned prisoner
pending appeal - "Illegal" and "wrongful" act or omission - Distinction irrelevant
for purposes of liability under tons Law (Oyo Slate).
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Damages - Quantum - Action under Torts Law (Oyo State) - Amount assessed
by trial judge in event of plaintiffs success on appeal.
ISSUES:
1.
Should a right of stay of execution pending the determination of an appeal be
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inferred from the constitutional rights of appeal granted a convict under sections
220(1)(e) and 213(1)(d) of the 1979 Constitution and the appellate jurisdictions
conferred on the Court of Appeal and Supreme Court by Section 219 and 213(1)
of the 1979 constitution respectively? i.e. Can the Governor of Oyo State lawfully
order the execution of a convict who had his appeal still pending in the Court
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of Appeal because there is no statutory provision for stay of execution pending
the determination of an appeal in Oyo State?
2.
Whether the unconstitutional execution of a deceased person by a State
Government is actionable under the Torts Law.
3.
Whether it is only claims arising from death by accident, that are maintainable
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under the Torts Law.
4.
Whether the rule in
Baker v. Bolton
(1808) 1 Camp. 493 is applicable in Nigeria.
5.
Whether a claim for damages for the unconstitutional execution of a deceased
person must be brought by the executors or administrators of the deceased
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person.
6.
What matters are required to be pleaded and proved in a claim under the Torts
Law?
7.
Whether "fault" in s.2 of the Torts Law (Oyo State) includes the breach of a state
government's duty to preserve the life of a condemned prisoner pending
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termination of his appeal.
FACTS:
The Oyo State High Court convicted a certain Nasiru Bello of the offence of
armed robbery and sentenced him to death on the 30th October 1980. On the 12th
November, 1980, within the time prescribed by law, he filed his notice of appeal
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against the said conviction in the Federal Court of Appeal and a copy of the no-
tice of appeal was served on the Attorney-General of Oyo State. While the appeal
was pending, the Attorney General recommended to the Governor the execution
of the said Nasiru Bello and in consequence thereof he was executed on the 5th
of September, 1981. As a result of the premature execution of the deceased, his
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dependants instituted a suit in the Oyo State High Court claiming "N100,000 as
damages for illegal killing of their breadwinner' against the Oyo State and based
their claim on the doctrine "where there is a right, there is a remedy." They averred
in their pleadings that in breach of the constitutional duty not to execute a con-
demned convict until the determination of any appeal by him, the defendant rec-
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klessly recommended the execution of the deceased though fully aware of his
pending appeal. They also pleaded that by this illegal killing, the deceased had
been wrongly deprived of his constitutional right to appeal and that the plaintiffs
included the deceased's dependant children and other relations.
The trial judge though agreeing that the deceased's execution was wrongful,
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dismissed the claim as disclosing no cause of action, on the grounds that under
the rule in
Baker v Bolton,
no damages were recoverable at common law for
wrongly causing the death of a person except he brings his case within the ambit
of the Torts Law, and that the plaintiff's writ of summons and pleadings were in-
BELLO & ORS V. A-G. WO STATE
1259
curably defective in regard to the requirements of the Torts Law. The trial judge
however assessed the amount of damages he considered due to the plaintiffs in
event of their success on appeal.
The plaintiffs appeal to the Court of Appeal was dismissed on similar grounds
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thus they appealed to the Supreme Court. Due to the constitutional issue involved
in the case, the Supreme Court invited all Attorneys-General in the Federation to
file their briefs and appear before the court and address it as
amici curiae.
Counsel for the appellants and the learned
amicus curiae
supporting the ap-
pellants's case submitted that the trial court and Court of Appeal had erred in dis-
10
missing the appellants's claim on the grounds stated above. They argued that
despite the paucity of the appellant's pleadings, there were sufficient facts therein
to bring the claim within the provisions of the Torts Law. They urged the Supreme
Court to allow the appeal by doing substantial justice devoid of any legal techni-
cality in the mere form of pleadings.
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Counsel for the Respondents and the learned
amici
supporting them responded
by arguing that the Torts Law could not avail the appellants because 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, the action was not brought by the
administrator or executor of the deceased in accordance with the provisions of
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section 4 of the law and; full particulars of the dependency of the appellants were
not set out in their pleadings.
HELD:
1.
Although there is no statutory provision for stay of execution of a sentence of
death pending the determination of an Appeal in Oyo State, a stay of execution
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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 Supreme
Court under Sections 219, 220 and 213 of the Constitution. The Governor of a
State cannot lawfully order the execution of a convict who has appealed against
his conviction when his appeal has not been finally determined. Thus the
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execution of the deceased was unconstitutional and unlawful.
2.
By virtue of the express provisions of section 3 of the Torts Law any death
caused by the tortious or criminal act of the person causing the death is
actionable under the Torts Law. The section states
(inter alia
that the person
causing the death shall be liable in an action for damages "notwithstanding the
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death of the person injured and although the death shall have been caused
under such circumstances as to amount in law to felony." Thus not only death
caused by accident or negligence, but also death caused by murder or
manslaughter is actionable under the Torts Law. The Court of Appeal thus erred
in law in holding that a claim under the Torts Law is only maintainable for
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accidental death. The common law rule in
Baker v. Bolton
is inapplicable in
Nigeria in view of the unambiguous words of s.3 of the Torts Law.
3.
The basis of a claim under s.3 of the Torts Law is the survival of a right of action
i.e. if the deceased would have had a right of action against the respondent if
he had not died. Since, the deceased in the instant case was executed by a
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firing squad, he would have had a right of action for damages if he had survived,
thus his right of action survived him and the plaintiffs are entitled to maintain it.
Thus the premature and unconstitutional execution of the deceased is
actionable under the Torts Law.
4.
The Court of Appeal erred in holding that the action ought to have been brought
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by and in the name of the executor or administrator of the deceased - Nasiru
Bello. Under the Torts Law, the administrator or executor of the deceased may
institute the action within six months of the death of the deceased. However
after the expiration of the six months, the dependants of the deceased may bring
the action in their name by virtue of the proviso to section 4 of the Torts Law.
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