CORAM

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Tani yusuf hassan JCA

Ibrahim ali andenyangtso JCA

Olasumbo olanrewaju goodluck JCA

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PARTIES

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SUPERINTENDENT BABA

APPELLANTS 

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1. ABDUL WAHAB BELLO

2. SGT. JIBRIL MOHAMMED

3. INSPECTOR GENERAL OF POLICE

4. COMMISSIONER OF POLICE BAUCHI

5. POLICE SERVICE COMMISSIONRESPONDENT(S)

RESPONDENTS 

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AREA(S) OF LAW

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CONSTITUTIONAL LAW, HUMAN RIGHTS, ADMINISTRATIVE LAW, POLICE POWERS, CRIMINAL LAW, CIVIL PROCEDURE, EVIDENCE LAW, PRACTICE AND PROCEDURE, FUNDAMENTAL RIGHTS ENFORCEMENT, DAMAGES

 

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SUMMARY OF FACTS

The case arose from a fundamental rights enforcement action initiated by the 1st Respondent (Abdul Wahab Bello) at the Federal High Court, Bauchi Division, on behalf of one Ibrahim Babangida (deceased). The 1st Respondent, along with Ibrahim Babangida and one Ibrahim Samaila, were arrested and detained at the Bauchi Township Police Divisional Headquarters on allegations of stealing seven fowls. On July 17, 2020, they were taken from detention to an open space behind the cell, where, on the Appellant’s instructions, they were tied to a tree and beaten with a pestle on their legs, ankles, thighs, arms, and chests. As a result of this torture, Ibrahim Babangida and Ibrahim Samaila died, while the 1st Respondent survived. The deceased’s bodies were then taken to their families. The 1st Respondent filed an action seeking declarations that these acts violated fundamental rights and claimed damages. The Federal High Court granted the reliefs, including an award of N100 million in exemplary damages. Dissatisfied, the Appellant appealed to the Court of Appeal.

 

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HELD

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1. The appeal was dismissed.

2. The Court held that the 1st Respondent had the capacity to enforce the fundamental rights of the deceased Ibrahim Babangida as his acquaintance.

3. The award of damages to Hafsatu Babangida (the deceased’s mother) was upheld, even though she was not a party to the suit.

4. The Court affirmed that the Appellant and his officers exceeded the scope of Section 4 of the Police Act and violated the constitutional rights of the deceased.

5. The judgment of the Federal High Court delivered by Hon. Justice Hassan Dikko on March 26, 2021, was affirmed.

 

 

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ISSUES

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1. Whether the 1st Respondent had the legal capacity to institute an action for enforcement of fundamental human rights of another person and thus clothe the lower Court with jurisdiction to entertain the suit ?

2. Whether the lower Court was right in making an order for payment of damages in favor of a non-party to the suit ?

3. Whether the learned trial Judge was right in discountenancing the Appellant’s Counter-Affidavit for being self-contradictory and offensive to Section 115 of the Evidence Act ?

4. Whether the lower Court was right in reaching the conclusion that the deceased died as a result of injuries inflicted by the Appellant ?

5. Whether the award of N100,000,000.00 as damages was excessive ?

 

 

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RATIONES DECIDENDI

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ENFORCEMENT OF FUNDAMENTAL RIGHTS – WHO CAN INSTITUTE ACTION

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“It is trite that in a claim for the enforcement of one’s fundamental human rights, it is the reliefs sought, the grounds for the reliefs and the facts of the case that are to be considered in determining the capacity of the applicant. Where the facts relied upon disclose a breach of fundamental human rights of a person as the basis of the claim, there will be redress by virtue of the enforcement of the same vide Fundamental Rights (Enforcement Procedure) Rules.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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RIGHT OF ACTION FOR DECEASED PERSONS – SURVIVAL OF ACTION

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“The general rule is that a dead person can neither sue nor can be sued, which is expressed in the maxim ‘personalis moritur cum persona.’ However, the Courts have evolved the principle that the breached rights of a deceased person can be pursued by his dependents, parents, spouses, friends, siblings, acquaintances or representatives in law.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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EFFECT OF UNCONTROVERTED EVIDENCE – DUTY OF COURT

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“The legal effect of unchallenged and uncontroverted averments in an affidavit, as in this case, is that such averments are accepted and acted upon, as was properly done in my view, by the lower Court.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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SCOPE OF POLICE POWERS – LIMITS OF AUTHORITY

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“The Appellant and 2nd Respondent were very professional in the handling of this case. But from the proven facts of this case, I hold that they have exceeded the scope of Section 4 of the Police Act, and went outside the exceptions allowed in Section 35 (1) (a) – (f) of the Constitution.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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AWARD OF DAMAGES – JURISDICTION TO AWARD TO NON-PARTY

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“I make bold to hold that by the authority of BELLO & ANOR VS. A.G. OYO STATE & ORS (supra) Hafsatu Babangida being the biological mother of the late Ibrahim Babangida is entitled to be awarded the damages as the 1st Respondent did not claim the benefit for himself.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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NATURE OF GENERAL DAMAGES – PRINCIPLES OF AWARD

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“The award of N100,000,000.00 to Hafsatu Babangida being the biological mother of the deceased Ibrahim Babangida is in the nature of general damages presumed by the law as flowing from the wrong complained of which is the killing of Ibrahim Babangida by the Appellant and his men.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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CONTRADICTIONS IN EVIDENCE – EFFECT ON CREDIBILITY

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“I have carefully scrutinized the averments in paragraphs 11 (i), (ii), (13) (i), (ii), 15 (i), (ii), (iii) and 22 (a) – (i) of the Appellant’s Counter Affidavit and I am satisfied that there were fundamental contradictions therein.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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PROOF OF CAUSE OF DEATH – CONSISTENCY OF EVIDENCE

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“In Exhibit MAI the cause of death was given as (a) overwhelming sepsi, (b) multiple injuries and (c) severe head injuries. These injuries are consistent with beating with a pestle on the chest, thighs, legs, and arms. This is nothing short of man’s inhumanity to man, which should not be allowed in the 21st Century.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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COMPETENCE OF AFFIDAVIT – REQUIREMENTS OF DEPONENT

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“It is not the law that an affidavit and further affidavit must be deposed to only by one and the same deponent. I cannot find this requirement under Sections 107 – 117 of the Evidence Act, 2011 (as amended). The requirement of the law is that the deponent of an affidavit must be conversant with the facts of the case or well acquainted with the information derived from some other source which must be stated therein.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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ENFORCEMENT OF RIGHTS – CAPACITY TO SUE

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“In this case, it is also clear that the right of action of the deceased Ibrahim Babangida survived him and therefore his acquaintance, the 1st Respondent, has the capacity to enforce his fundamental human right to life as enshrined in Sections 33 and 34 of the Constitution, for the benefit of his mother.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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GENERAL DENIAL – INADEQUACY IN SERIOUS ALLEGATIONS

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“A general denial of such weighty allegations is not enough to exculpate the Appellant and his officers from responsibility.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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VIOLATION OF FUNDAMENTAL RIGHTS – POLICE CONDUCT

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“The Appellant and the 2nd – 3rd Respondents in this case, going by the Affidavit evidence of the 1st Respondent, have been shown to have breached the fundamental rights to life of the late Ibrahim Babangida, which rights are guaranteed by the provisions of Sections 33 (1), 34 (1) and Article V of the African Charter on Human and Peoples Rights.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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NATURE OF DAMAGES – REQUIREMENT OF PROOF

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“It is the law that damages are the pecuniary compensation which are awarded to a person for injury or injuries suffered or sustained by reason of the act or default of another.” – Per Ibrahim Ali Andenyangtso, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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1.  Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap 10) LFN 2010

3. Fundamental Rights (Enforcement Procedure) Rules 2009

4. Evidence Act 2011 (as amended)

5. Police Act

6. Court of Appeal Rules 2021

 

 

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