RANSOME-KUTI & ORS. V. A-G. FED. & COMM. FOR JUSTICE & ORS.
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RANSOME-KUTI & ORS. V. A-G., FED. &
COMM. FOR JUSTICE & ORS.879
omic trees are clearly in a different category. Unfortunately evidence
on
this was
inconclusive. While Exhibit D showed that it was appellant's father who planted
them, it seemed they were planted even before the land was sold to him. Besides,
there was evidence of cutting down these oranges and bananas given by 2nd plain-
5
tiff and Raufu Beji. It is not clear in the absence of proceedings in Exhibit D, E,
F
whether Idowu Beji cut them down because Coker went beyond the right of usage
allowed him or whether they were cut down in the process of Idowu's claim for re-
covery of possession. See Exhibit D. The other allegedly permanent structures
were mud houses.
10
Although there was no evidence that Idowu was head of the family it is necess-
ary nevertheless to state that even if he was (in the face of the finding that the land
in dispute was family land) and he was treating it as his personal land and sold it
as such, such a sale would be void. See
Mogays case supra.
For these reasons and for the more detailed reasons ably set down by my
15
learned brother Kawu, J.S.C. I would also dismiss the appeal. I abide by all the
orders in the said lead judgment.
UWAIS, J.S.C.: I
have had the privilege of reading in draft the judgment read
by my learned brother Kawu, J.S.C. I agree with the reasons and conclusion
20
therein. I too will dismiss the appeal with N300.00 costs to the respondents.
Appeal dismissed.
25
RANSOME-KUTI & ORS. V. A-G., FED. & COMM.
FOR JUSTICE & ORS.
CHIEF DR. (Mrs.) OLUFUNMILAYO
APPELLANTS
RANSOME-KUTI & OTHERS
V
A-G., OF THE FEDERATION
RESPONDENTS
& COMMISSIONER FOR JUSTICE & ORS.
SUIT NO. SC 123/1984
SUPREME COURT OF NIGERIA
IRIKEFE,
J.S.C.
ESO,
J.S.C.
COKER,
J.S.C.
KARI BI-WHITE,
J.S.C.
OPUTA,
J.S.C.
28th June, 1985
Tort - Stale immunity from tortious liability - common Law doctrine.
Constitutional Law - Fundamental Human Rig,lits - Enforceability under 1963
Constitution - How to seek redress - Absence of prescribed procedure - Right
to adopt any procedure - Plaintiff's duty to show he is seeking that redress
under 1963 Constitution.
30
35
40
45
50
ISSUES:
1.
Can the State be sued in tort for the wrongful acts of its servants and agents?
880
NIGERIAN SUPREME COURT CASES
[19851 2 N.S.C.C.
2.
How does a citizen who claims that his fundamental rights under Chapter 3 of
the 1963 Constitution have been infringed seek redress in the Courts?
3.
Whether a counsel who relies on a particular head of claim in the trial court,
can change to another head of appeal.
FACTS:
5
The plaintiffs sued the Federal Government for the wilful burning of their build-
ings and chattels, assault and battery by rampaging soldiers. The claim though
grounded in tort also invoked all statutory and common law provisions of the Con-
stitution of the Federation 1963, particularly chapter III dealing with fundamental
human rights. The trial Judge held that no action would lie against the Attorney-
10
General as a representative of the government for a wrong committed by its ser-
vant and that each servant of the government is a fellow servant of the other and
does not stand in the relationship of employer and employee for each must bear
his own burden. He also held that the evidence did not support the claim that the
other defendants ordered any soldier to do any of the acts complained of and dis-
15
missed the claim.
The Court of Appeal affirmed the decision of the lower court and on appeal to
the Supreme Court.
HELD:
1.
At Common Law, the State enjoys Immunity from legal action and could not be
20
impleaded in its own Court for the tortious acts of its servants. Thus, if the State
did wrong it could not be sued, it was the agent and servant who committed
that wrong on behalf of the State that would be personally liable.
2.
Although the Common Law principle of State immunity from tortious liability
has been abolished in England by S.2 of the Crown Proceedings Act 1947, this
25
is not so in Nigeria because the 1947 Act does not apply in Nigeria. On the
contrary, the petition of Rights Act Cap. 149, as amended in 1964, S.3 has
further given the stamp of statutory authority to the Common Law principle in
Nigeria.
3.
In the present case, the plaintiffs' case being founded upon that, and the
30
Common Law principle of State immunity still applicable in Nigeria in 1977,
when the cause of action arose, the State cannot be made liable for tortious
acts of its servants or agents.
4.
Under the 1963 Constitution, a citizen is at liberty to approach the Court for
enforcement of his right or to seek redress in any manner which he considers
35
convenient in any circumstances. Though he could do this by way of the
prerogative a:tions, or by originating summons or declaratory relief, he must
seek that redress before the Court could be called upon to apply the provision
of the Constitution to his case.
5.
A counsel who relies on a particluar head of claim, cannot change his stand
40
on the claim, on appeal. The entire record of proceedings was resplendent
with statements by the learned counsel for the appellant, that the action was
brought in tort, and no more. It is too late for counsel to change course at top
stream, as his cause of action was well defined in his writ and his statement of
claim.
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[EDITORIAL NOTE:]
As to crown proceedings, the classical doctrine under the Common Law of
England was that "The king can do no wrong". By virtue of section 45(1) of the
interpretation Act (Cap.89) Laws of the Federation of Nigeria and Lagos 1958, this
royal old doctrine of immunity of the state was preserved in Nigeria laws. The
50
doctrine which was altered by the Crown Proceedings Act 1945 of England, has
not been repealed in Nigeria, thus up to the enactment of the 1979 Constitution,
no action against the Attorney-General; as a representative of the government for
the torts commtedby it's servants could be maintained.
RANSOME-KUTI & ORS. V. A-G., FED. &
COMM. FOR JUSTICE & ORS.881
However, section 6 of the 1979 Constitution, which vests the judicial powers of
the country in the court, appears to have resolved this situation. Section 6 of the
1979 Constitution vests the court with jurisdiction over matters between govern-
ment or authority and any person in Nigeria, and over all actions and proceedings
5
relating thereto, for the determination of any question as to the rights and obliga-
tions of a person.
Unfortunately the provisions of the 1979 Constitution do not apply to the instant
case, as the case came up before that time. However, if the appellant had instituted
the action by way of petition of right under section 19 of the 1963 Constitution, he
10
would have had a remedy under this fundermental human rights provision, as op-
posed to an action in tort.
CASES REFERRED TO IN JUDGMENT:
1.
Williams v. The Attorney-General
11 N.L.R. 49.
15
2.
Aoko v. Fagbemi & Ors.
(1961) 1 All N.L.R. 400.
3.
Olawoyin v. Attorney-General
(1961) 1 All N.L.R. 269.
4.
Jaundoo v. A.G. of Guyana (PC)
(1971) A.C. 972.
5.
Re Meises, Lucius and Bruking Ltd.
(1914) 31 T.L.R. 28.
6.
Raleigh v. Goschen
(1898) 1 Ch. 73, 78-79.
20
7.
Mullins v. Sec. of State for War
(1926) 43 T.L.R. 106.
8.
Mackenzie-Kennedy v. Air Council
(1927) 2 K.B. 517, 531.
9.
Ambrosini v. Tinko
(1929) 9 N.L.R. 8.
10.North Brewery Ltd. v. Mohammed
(1972) N.N.L.R. 188.
11.
Ogiemen v. Ogiemen
(1967) N.M.L.R. 243.
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12.A.C.B.
Ltd. v. Attorney-General for Northern Nigeria
(1969) N.M.L.R. 231
13.
Ochoma v. Unasi
(1965) N.M.L.R. 321.
14.Ekpenyong & Ors. v. Nyong & Ors.
(1975) 2 S.C. 71.
15. Nigerian Housing Development Society Ltd. & Anor. v. Mumuni
(1977) 2
S.C. 57,
30
16.
Chike Obi v. D.P.P.
(1961) 1 All N.L.R. 186.
17.Attomey-General of St. Christopher, Nevis & Angiulla v. Reynolds
(1980)
A.C. 654.
18.Shugaba Darman v. The Minister of Internal Affairs and Ors.
(1983) 3
N.C.L.R. 915.
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19.Sofekun v. Akinyemi
(1981) 1 N.C.L.R. 147.
20.Eyesan v. Sanusi
(1984) 4 S.C. 115.
21.Ariori & Ors. v. Elemo & Ors.
(1983) 1 S.C. 13.
22.Asinobi v. A.G.
(1956) 1 L.R.E.N.L.R. 22.
23.
Uwe° v. A.G. of Bendel State & 4 Ors.
(1982) 7 S.C. 124.
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24.
Gilbert v. Trinity House
(1886) 17 Q.B.D. 795.
25.
Wheeler v. Public Works Commissioners
(1903) 21 R. 202, 229.
26.
Fritz Williams v. The A.G. of Nigeria
(1932) 11 N.L.R. 49.
27.
Viscount Cantebury v. A-G.
(1843) 41 Ch.
28.
Tobin v. Regina
(1864) 143 C.P.
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29. Feathers v. Regina
(1865) E.R. 122.
30.Olasupo &
Ors. v. A.G. Western Nigeria
(1961) 1 All N.L.R. 562.
31.Bainbridge v. Postmaster-General
(1906) 1 K.B. 178.
32.
Trop v. Dules
356 U.S. 86 (1958) 100-101.
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Mr. Tunji Braithwaite
(with him
Dr. Olu Onagoruwa, Mr. 0. Sanu and Mr. Femi
Delumo)
for the Appellants.
Mr. Chike Ofodile, SAN.,
(with him
Mr. J.B. Ajala (Director Civil Litigation) Mr. T.Y.
Daniel (State Counsel)
for Respondent.
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