⦿ CASE SUMMARY OF:
Chief Dr. (Mrs.) Olufunmilayo Ransome-Kuti & Ors. v. The Attorney-General Of The Federation & Ors (1985) – SC
– Constitutional Law;
– Petition of right;
– Immunity of the State;
– Vicarious liability;
1. Chief Dr. (Mrs.) Olufunmilayo Ransome- Kuti;
2. Mr. Fela Anikulapo-Kuti;
3. Dr. Beko Ransome-Kuti;
4. Africa 70 Organisation Limited;
1. The Attorney-General of The Federation;
2. The Chief Of Staff, Army Headquarters;
3. Commissioner For Justice;
4. Permanent Secretary, Ministry Of Defence;
5. Lt.-Col. Adedabo;
6. Major Daudu;
7. LT. Ikoku;
8. Lance Corporal Agwu;
9. Private Lawal;
– (1985) LPELR-SC.123/1984;
– (1985) NWLR (Pt.6) 211;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mr. Braithwaite;
* FOR THE RESPONDENT
– Mr. Ofodile S.A.N.
⦿ FACT (as relating to the issues)
On 18th February, 1977, at about mid-day, one Segun Ademola, an employee of the 2nd Plaintiff, Fela Anikulapo Kuti, travelled in a landrover belonging to the 2nd Plaintiff, and driven by one Segun Adams along Agege Motor Road. At a point on the road, precisely at Ojuelegba, a military traffic policeman stopped these two people and questioned them as to why their vehicle failed to carry a plate number in the front. The two people told the military policeman that the vehicle had a plate number at the back, but the one which should have been in front was inside the vehicle, near the glass wind-shield. The soldier thereupon demanded that they should surrender the key of the vehicle to him. This they refused to do, and the soldier in consequence blew his whistle to attract the attention of other military men. Segun Ademola instructed Segun Adams to drive the vehicle in reverse into 14A Agege Motor Road, the property belonging to the Plaintiffs, even though by that time, the soldier had sat on the bonnet of that vehicle to prevent its movement. In addition, there was a traffic hold up around the vehicle, and in no time, the vehicle was virtually besieged by soldiers. Segun Ademola took another step. He decided to make a report to his boss, the 2nd Plaintiff. What has not been clear from the evidence was whether Segun Adams, whom Segun Ademola sent to make the report, returned to the scene.
However, what follows is to be gathered from the evidence in court as put together by the learned trial Judge. The soldiers got hold of Segun Ademola and beat him to pulp. One Balogun, a driver helped to convey him to 14A Agege Motor Road where he remained quite helpless. The 2nd Plaintiff got the narration from Segun Ademola and then ordered that Segun Ademola be taken to the hospital. Meanwhile, soldiers had massed outside the gate of 14A Agege Motor Road. The soldiers would like to enter the house to arrest Segun Ademola but 2nd Plaintiff would not yield. He demanded their warrant. More Soldiers arrived. The evidence talked of about 500 of them and they carried guns. The 2nd Plaintiff retired to the balcony of the house. A Mercedes Benz car arrived and the 5th defendant, Major Daudu was alleged to have spoken to the occupant of the car. The car then left and immediately after that, the soldiers rained stones, bottles and other missiles towards 14A Agege Motor Road. It was just after this that the 3rd Plaintiff, Dr. Beko Ransome-Kuti came in. He went to join the 2nd Plaintiff upstairs. Then, more soldiers arrived, And the evidence was that they came from the nearby Abalti Barracks, they carried arms and warned people, by a display of a signpost, against the people risking being shot. 2nd Plaintiff remained on the balcony which had now been barricaded with chairs and tables. Then, for a while the missile attack stopped but the generator outside and the van on which it stood were already on fire. Again, the evidence was that it was a soldier, the 7th defendant, Corporal Ago, who poured petrol on the generator while one Lawal, another soldier struck the match. Now, the soldiers advanced to the gate, cut down the wire fences and moved into the compound of the house, There was a stampede, with the soldiers throwing out everybody in the house except 1st Plaintiff Dr. (Mrs.) Olufunmilayo Ransome- Kuti and the third, her son, Dr. Beko Ransome-Kuti. But the soldiers did not stop there. They moved into the main house, set fire to it and razed it to the ground. That was not all! There was looting, beating up of the occupants of the house and the women therein assaulted. And, as if that was not enough the inmates were marched into Army barracks. The two brothers, Fela and Beko, also with them. The injuries these people suffered are better described in the evidence of Mr. Amechi Obiora, a Consultant Surgeon in Lagos University Teaching Hospital who treated them. He said there were 52 patients, 5 of whom were admitted into the Hospital and the injuries they suffered ranged from laceration, burns, head injuries, minor bruises and even breaking of bones. Both the 1st and the 2nd Plaintiffs were among those admitted into the hospital.
The Plaintiffs, herein Appellants, filed a suit claiming: N25,000,000.00 (Twenty-five Million Naira) against the Defendants jointly and severally being damages suffered by the plaintiffs when the defendants by their servants and/or agents on Friday 18th day of February 1977, willfully and maliciously set fire to the plaintiffs’ 2-storey Building House and Bungalow and appurtenances situate at No. 14A Agege Motor Road, Yaba, Lagos, together with other plaintiffs’ personal effects, valuable properties, cash, professional and/or business equipments, including motor vehicles and buses, all of which were totally destroyed by the said fire set to them by the defendants; and for Assault and Battery suffered by the plaintiffs.
At the High Court, Dosunmu J. held – “There has been nothing to demonstrate that the plaintiffs rights…as guaranteed by the Constitution have been infringed…s.32 of the Constitution vests the Court with special jurisdiction in relation to all these fundamental rights. But plaintiffs have not approached this court under this special jurisdiction. The section provides that any person who alleges that any of the provisions of Chapter III has been contravened in any territory in relation to him may apply to the High Court of that territory for redress. No such allegation of violation of fundamental rights has been made here apart from the general reference to fundamental rights in their pleadings And, after all said and done, nowhere does the Constitution provide for the award of damages, as the plaintiffs now claim, for the infringement of the provisions in relation to fundamental rights. So that if it is the claim of the plaintiffs that there had been violations of their rights, the Constitution does not provide award of damages in the event. It is the common law that provides for the award of damages to the plaintiffs when assaulted or battered, and it is the same common law that immunizes the State or its servants from liability. The Nigerian Republican Constitution has not changed the legal position.”
The Plaintiff appealed to the Court of Appeal. The Court of Appeal held, per Ademola JCA: “The mere fact that the Attorney-General is made a party to a suit does not mean the action is against the Head of State or Government. The Attorney-General is a Minister of State under the Constitution and can sue or be sued. The doctrine of non-liability for tort does not apply to him. It is only when the Head of State is involved in a suit can the doctrine be involved. It does not apply here. Paragraph 4 of the Statement of Claim states that the Attorney-General and others are being sued in their representative capacities in their official position. Can an action be maintained in tort against somebody representing people, who have committed the tortious action given the nature of tort being actio personalis? The answer is an emphatic NO. The action against the Attorney-General should have been the doctrine of non-liability for tort by the Crown. As in the case of other Defendants (Respondents) against whom there was no evidence of any act of tort and thereby the claims against them were rightly dismissed, the same could be said about the Attorney-General in this suit.”
The Court of Appeal further held, per Nnaemeka-Agu, JCA: “I agree with Mr. Braithwaite that in the interpretation of the right of a person who alleges that any of the provisions of Chapter III of the 1963 Constitution has been contravened in relation to himself to apply to the High Court of the territory for redress includes the right to claim damages. In my view the word “redress” is wide enough to include damages. But the problem raised by that aspect of the Appellants’ appeal is that Chapter III did not provide for a blanket protection of all rights but went ahead to provide for specific rights which are protected thereunder. For a plaintiff who comes to Court in reliance upon Chapter III of the 1963 Constitution to succeed, he must show that one or more of the rights guaranteed by that Constitution had been infringed or threatened with infringement. That the Appellant on the claim he brought before the Court failed to allege or prove, assuming he relied on the provisions of Chapter III of the Constitution.” the Court of Appeal hence dismissed the Appeal.
Hence, an appeal to the Supreme Court.
1. Whether on the endorsement of the claim in the writ of summons and averments in the statement of claim an action in tort lies against the respondents?
2. Whether in the action as framed, appellants were entitled to rely on the provisions of S.19(1) of chapter 3 of the Constitution 1963 for redress?
⦿ HOLDING & RATIO DECIDENDI
ISSUE 1 & 2 WAS RESOLVED AGAINST THE APPELLANT.
RATIO [per Eso, JSC]:
i. I do share the views of Ademola J.C.A. that the claim of the plaintiffs was in tort simpliciter and the only question that could be posed by the appellant is whether that claim in tort, with reference to fundamental right in paragraph 14 of the Statement of claim would be sufficient for the Court to be called upon to start enquiry as to the violation of that right. On this topic, I am definitely inclined to the view held by Nnaemeka-Agu J.C.A that – “For a plaintiff who comes to court in reliance upon Chapter III of the 1963 Constitution to succeed he must show that one or more of the rights guaranteed by that Constitution had been infringed”.
ii. The right guaranteed by this provision is not, in my respectful view a mere right, it is a special one, the remedy for which is outside the purview of an ordinary action which is brought mainly to seek damages for a delict. And when one is out just to seek damages for a tort, allegedly committed by another, the ordinary common law, which it would appear, the plaintiffs in this case have brought, (and not the special law) is the answer. While the special law is meant to seek redress which indeed may even include compensation for the damage done, the plaintiff must be known to be seeking that redress and not merely calling in aid constitutional provisions in his action for damages for tort. It is in this context and to this extent that I understand and regard as correct, Ademola, J.C.A.’s statement that “The question here as I see it is a matter of form of action.”
iii. What notice has the plaintiffs given to the defendants in this case? It is clearly, and indeed very clearly, a notice of a claim in damages for Tort where the plaintiffs would call constitutional provisions in aid for that claim. And as a further proof, in what looks like a written address, submitted by learned counsel for the plaintiffs, in the High Court, he minced no words about the notice he has given to the defendants. That notice is implicit in his submissions which I have already referred to in this judgment and at the risk of repetition. I will state it again. He said- “My argument postulates that the whole of our claim in this case is one purely in tort and nothing else. And I hereby so submit. A look (sic) cursory or careful at the endorsement on the Writ and the accompanying Statement of Claim shows the claim is in fact and in substance a claim for injury to the persons of the plaintiffs and their chattels.
Magna Carter 1215 Articles 19 and 40 which provide – “no freeman may be taken or imprisoned, or disused of his freehold or liabilities in free customs or be outlawed or exiled or in any way molested nor judged or condemned except by lawful judgment or in accordance with the law of the land And the crown or its ministers may not imprison or coerce the subject in an arbitrary manner”.
In the United States, the Eighth Amendment to the United States Constitution provides – “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
⦿ SOME PROVISIONS
S.19 of the 1963 Constitution provides “No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”;
Section 32(1) of the 1963 Constitution “Any person who alleges that any of the provisions of this Chapter has been contravened in any territory in relation to him may apply to the High Court of that territory for redress”.
Section 32(2) of the 1963 Constitution “Subject to the provisions of section 115 of this Constitution, the High Court of a territory shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, within that territory of any rights to which the person who makes the application may be entitled under this chapter”.
Section 32(3) of the 1963 Constitution “the Chief Justice of Nigeria may, with the consent of the Executive Council, by order, make provision with respect to the practice and procedure of the High Courts of the territories for the purpose of this section and may confer upon those courts such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling those courts more effectively to exercise the jurisdiction conferred upon them by this section.”
Interpretation Act (Cap 89) Laws of the Federation of Nigeria and Lagos 1959, section 45(1) which provides: “Subject to the provisions of this section and except in so far as other provision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st day of January, 1900, shall be in force in Lagos and, in so far as they relate to any matter within the exclusive legislative competence of the Federal legislature, shall be in force elsewhere in the Federation.”
Section 3 of the Petition of Rights Act as modified by the Adoptation of Laws (Miscellaneous Provisions) Order, 1964 provides “All claims against the Government of the Federation or against any Ministry or Department there, being of the same nature as claims which before the commencement of the Crown Proceedings Act 1947 of the Parliament of the United Kingdom might in England have been preferred in England by petition, manifestation or plea of right may, with the consent of the Attorney-General of the Federation, be preferred in a High Court having original jurisdiction in respect thereof or if the Supreme Court has such jurisdiction, in that Court, in a suit instituted by the claimant as plaintiff against such persons as the said Attorney-General may designate, as defendant, for the purpose”.
⦿ RELEVANT CASES
Aoko v. Fagbemi 1961 1 All N.L.R. p.400 which was relied upon by both the court and learned counsel, a High Court decision, and which, though was in regard to the 1960 Constitution, Fatayi-Williams J., as he then was, said, and I am in full agreement with his postulates therein: “With regard to procedure, it would appear that the procedure adopted in bringing the matter before this Court for adjudication is not strictly an application for an order of certiorari to issue. This application was made in pursuance of the provisions of section 31 of the Second Schedule to the Nigeria (Constitution Order in Council)…Since no law with respect to practice and procedure has as yet, been passed by Parliament, I am of the opinion that the procedure adopted in the present application is in order.” [per Eso, JSC]
In Jaundoo v. A. G. of Guyana (P.c.) (1972) AC 972 as at p. 982 where, as in this case Parliament had not provided rules of procedure of seeking redress in matters dealing with fundamental rights, Lord Diplock reading the judgment of the Board approved the dictum of Warrington J. in re Meises, Lucius and Bruking Ltd. (1914) 31 TLR 28 where the learned Judge had said “where the Act” (sic Constitution) “merely provides for an application and does not say in what form that application is to be made, as a matter of procedure it may be made in any way in which the court can be approached.” “Approach” here must mean approach by an application for the particular redress. I agree with Lord Diplock, especially, as he was quick to add an important proviso. He said – “There is only one qualification needed to this statement. It is implicit in the word “redress.” The procedure adopted must be such as will give notice of the application to the person or the legislative or executive authority against whom redress is sought and afford him or it an opportunity of putting the case why the redress should not be granted.” [per Eso, JSC]
In Mackenzie-Kenny v. Air Council (1927) 2 KB. at p. 531, Atkin L.J., declared, “It is clearly established that no proceedings to enforce a remedy for tort will lie against the Crown, or against any servant of the Crown as representing in the proceeding the Crown consents to such a proceeding…”
⦿ NOTABLE DICTA
In my view, under the 1963 Constitution, (as it is under the present Constitution), the subject was at liberty to approach the court for enforcement of his right or, generally, at liberty to seek redress in any manner which he, the subject may deem to be convenient in any given circumstance. Though he could do this by any of the prerogative actions, or by originating summons or declaratory relief he must seek that redress before the Court could be called upon to apply the provision of the Constitution to his case. – Eso, JSC. Olufunmilayo v. Ag Federation (1985)
When the Court of Appeal held further that monetary compensation could be claimed in a claim for violation of fundamental right. I think their Lordships are right. But then it is incumbent on a plaintiff to be clear as to what he seeks, the manner of approach notwithstanding. His opponent must know what the claim against him is and not be left to guess. That is the essence of pleadings. That is also the essence of joining issues. – Eso, JSC. Olufunmilayo v. Ag Federation (1985)
It is important, and I think, I must reiterate again, that neither side, (but indeed this applies more to the appellants), has appealed on the facts. So, in so far as this appeal is concerned, the findings of the learned trial Judge on facts remain for ever unchallenged. It is upon the acceptance of the facts as they were found by the trial court that the legal points raised by both side in this court must be considered. – Eso, JSC. Olufunmilayo v. Ag Federation (1985)
But what is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilised existence and what has been done by our constitution, since independence, starting with the Independence Constitution, that is, the Nigeria (Constitution) Order in Council 1960 up to the present Constitution, that is, the Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: it is the 1963 Constitution that applies) is to have these rights enshrined in the Constitution so that the rights could be “immutable” to the extent of the “non-immutability” of the Constitution itself. – Eso, JSC. Olufunmilayo v. Ag Federation (1985)
Indeed, it is on account of the effect of the type of action brought by the plaintiffs that Mr. Braithwaite, to my mind, has now changed stance from a claim in pure tort to one only under the Constitution! He has now insisted even unto the point of stating that learned counsel were outraged to learn that anyone could suggest the plaintiffs’ action was in tort and NOT for redress under the Constitution, that he never brought an action in tort at any time. But did he not? I take it, that all learned counsel is trying to do here is to “change gear” for, as I have pointed out earlier, learned counsel, Mr. Braithwaite himself was in no doubt that his action was in tort and nothing else. He said so several times and the Court understood him to be saying so. But not only that, the defendants were made to understand him as saying so. Indeed, the entire record of proceedings was replete with statements by Mr. Braithwaite himself that the action brought by the plaintiffs was in tort and NO MORE. It is too late for counsel to change course at top stream, his cause of action is well defined in his Writ and his statement of claim. – Eso, JSC. Olufunmilayo v. Ag Federation (1985)
For justice is to be done according to law and certainly not according to sentiments. – Eso, JSC. Olufunmilayo v. Ag Federation (1985)
What is left is in regard to the vicarious liability of the Government, but the appellants have been met by that old and almost anachronistic legal phraseology that the King can do no wrong. The State (the King in England) has immunity at common law against being sued. This was based on the ancient principle of non-impleading the King in his own courts. Petitions of right which could be addressed to the King would not however lie for tort. – Eso, JSC. Olufunmilayo v. Ag Federation (1985)
The Court is to administer law as it is, and not as it ought to be. – Eso, JSC. Olufunmilayo v. Ag Federation (1985)
It is both elementary and fundamental that issues before the Court are decided on the pleadings of the parties. A party must state all the material facts which he relies upon in support of his claim before the Court. Material facts not so pleaded cannot be raised at the trial. – Karibe-whyte, JSC. Olufunmilayo v. Ag Federation (1985)
A party to a case is bound by his pleadings. A party cannot depart from his writ of summons and statement of claim and put up a case different from the pleadings. – Karibe-whyte, JSC. Olufunmilayo v. Ag Federation (1985)
In my opinion the purpose of chapter III is to preserve the civil rights of the citizen within the limits and scope allowed by the law. The rights conferred all the citizen, though described as fundamental do not, as was being suggested by Mr. Braithwaite override all laws. The right is fundamental in the sense that it enures in man as homo sapiens, and as a member of the political community. It is the reciprocal of his duty to the political community, by virtue of his association in it. Thus an action brought to claim damages from trespass is a tort, simpliciter. – Karibe-whyte, JSC. Olufunmilayo v. Ag Federation (1985)
As I have already stated in this judgment, the rationes for dismissing the appeal were (a) that appellant cannot sue the State in tort (b) that an action in tort being actio personalis cannot be brought against another in a representative capacity (c) appellants relying on the provisions of S.19(1) of the Fundamental Rights chapter III of the Constitution 1963, neither alleged in their writ of summons, nor averred in their statement of claim, any violations or threat of violations of such entrenched rights. – Karibe-whyte, JSC. Olufunmilayo v. Ag Federation (1985)
It is essential to appreciate the distinction between the provisions of S.19(1) already reproduced in this judgment, protecting and preserving appellants fundamental right under that section from interference by the legislature or oppressive coercive administrative action, and the same provision depriving another of an immunity vested in him by the law. Whereas S.19(1) does not by itself give to the citizen a cause of action, it enables the citizen to assert the preservation by the Constitution of his fundamental right. Thus where S.19(1) is violated by the functionary of the State beyond the scope permitted under S.19(2), the victim can enforce this violation by means of S.32. – Karibe-whyte, JSC. Olufunmilayo v. Ag Federation (1985)
The common law created certain rights civil rights and gave the owners such rights a cause of action if any of these rights are infringed. One of such civil rights is the right of quiet enjoyment of one’s land or house or close. In the eyes of the law, every man’s land is enclosed and set apart from that of his neighbour either by a visible or material fence (as in the case now on appeal) or by an ideal and invisible boundary existing only in the contemplation of law. Thus trespass clausum fregit and the ancient Writ of Trespass was a command to the defendant to show cause “quare clausum querentis fregit.” The slightest crossing of this boundary, real or imaginary, the slightest intrusion, was sufficient to found the tort of trespass to land. – Oputa, JSC. Olufunmilayo v. Ag Federation (1985)
Damages do not form an independent right by themselves. They flow out of and are merely consequential to the breach of known civil rights. – Oputa, JSC. Olufunmilayo v. Ag Federation (1985)