⦿ CASE SUMMARY OF:
Aliu Bello & Ors v. Attorney-General Of Oyo State (1986)
Aliu Bello & Ors
Attorney-General Of Oyo State
(1986) 5 NWLR 820;
(1986) 1 S.C 1-76
⦿ LEAD JUDGEMENT DELIVERED BY:
Mohammed Bello, JSC
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
- Mr. S.A. Bello
FOR THE RESPONDENT
- Mr. Fabunmi, Attorney-General of Oyo State.
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.
His dependants started a proceeding at the High Court of Oyo State, seeking for damages from the Government of Oyo State for the illegal killing of their bread winner. The High Court dismissed their case on the ground that they were not able to properly plead their case under the relevant torts law.
Dissatisfied, they appealed to the Court of Appeal.
The Court of Appeal upheld the decision of the High Court.
The Appellants have same appealed to the Supreme Court.
- 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?
- 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?
⦿ HOLDING & RATIO DECIDENDI
- Issue 1 was solved in favour of the Appellants. The Supreme Court held that the action was actionable under Torts law.
i. 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 be not only wrongful but also illegal.
ii. It may he pointed out that the basis of a claim under section 3 of the Torts Law is the survival of a right of action. The section states: “Whensoever the death of a person shall be caused by the fault of any other person and the fault is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then in every such case the person who would have been liable if death had not ensued shall be liable in an action for damages…”.
iii. 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.
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.
iv. 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.
- The Supreme Court found in favour of the Appellants for issue 2.
i. 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.
ii. 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.
⦿ SOME PROVISIONS
S.4 of the Torts Law, Cap. 124. Vol. VI Laws of Oyo State:
“4. Every such action as is maintainable by virtue of this Part shall be for the benefit of the wife or wives, husband, parent and child of the person whose death shall have been so caused and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may give such damages as it thinks proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the court by its judgment shall find and direct:
Provided that if there shall he no executor or administrator of the person deceased or that there being such executor or administrator no such action as aforesaid shall within six calendar months after the death of such deceased person have been brought by and in the name of his or her executor or administrator then and in every such case such action may be brought by and in the name or names of all or any of the persons for whose benefit such action would have been if it had been brought by and in the name of such executor or administrator; and every action so to be brought shall be for the benefit of the same person or persons and shall be subject to the same regulations and procedure, as nearly as may be, as if it were brought by and in the name of such executor or administrator.”
⦿ NOTABLE DICTA
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. – Mohammed Bello, JSC. Aliu Bello & Ors v. Attorney-General Of Oyo State (1986)
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. – Mohammed Bello, JSC. Aliu Bello & Ors v. Attorney-General Of Oyo State (1986)
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. – Anthony Nnaemezie Aniagolu, JSC. Aliu Bello & Ors v. Attorney-General Of Oyo State (1986)
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. – Anthony Nnaemezie Aniagolu, JSC. Aliu Bello & Ors v. Attorney-General Of Oyo State (1986)
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. – Karibi-Whyte, JSC. Aliu Bello & Ors v. Attorney-General Of Oyo State (1986)
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. – Karibi-Whyte, JSC. Aliu Bello & Ors v. Attorney-General Of Oyo State (1986)
One is not bound to travel beyond the facts of the case as stated in the Writ, the pleadings and the evidence. – Oputa, JSC. Aliu Bello & Ors v. Attorney-General Of Oyo State (1986)
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. – Oputa, JSC. Aliu Bello & Ors v. Attorney-General Of Oyo State (1986)
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 be but 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. – Oputa, JSC. Aliu Bello & Ors v. Attorney-General Of Oyo State (1986)
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. – Oputa, JSC. Aliu Bello & Ors v. Attorney-General Of Oyo State (1986)