Can a Claim of Fundamental Right Against Torture and Inhuman Treatment Be Made on Behalf of a Deceased Person?

CASE TITLE: C.P. KANO STATE & ORS v. MUSTAPHA (2024) LPELR-62756(CA)

JUDGMENT DATE: 22ND JULY, 2024

JUSTICES: MUHAMMED LAWAL SHUAIBU, JCA
BOLOUKUROMO MOSES UGO, JCA
USMAN ALHAJI MUSALE, JCA

DIVISION: KANO

PRACTICE AREA: CONSTITUTIONAL LAW

FACTS:

This appeal is against the judgment of the Kano State High Court of Justice delivered on the 9th day of November, 2021.

The respondent, claiming to be the brother and next of kin of the late Mustapha Idris Muhammad, filed an action against the appellants to enforce his deceased brother’s fundamental rights. He alleged that Mustapha was arrested by SARS officers on September 7, 2019, and detained until September 14, 2019, during which he was tortured and denied bail. The respondent further claimed that Mustapha died on September 27, 2019, from injuries inflicted during the torture, contrary to the police’s claim that he died from stomach ache.

The appellants countered that Mustapha had been lawfully arrested for armed robbery and conspiracy. They denied torturing him and asserted that he died from severe malaria and gastroenteritis while receiving treatment in the hospital. The trial Court rejected the appellants’ defense and ruled in favor of the respondent.

Aggrieved, the appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The appeal was determined on the following issue:

Whether the trial judge was correct in his decision that fundamental rights enforcement proceeding was available to the respondent on the facts of this case and so his action was not incompetent.

COUNSEL SUBMISSIONS:

The appellants’ counsel argued that the arrest and 14-day detention of the deceased, Mustapha Idris Muhammed, was justified under the 1999 Constitution, as it was based on reasonable suspicion of committing capital offenses, including armed robbery. Counsel claimed this did not violate his fundamental rights. Counsel also argued that photographs presented as evidence of injuries were inadmissible due to their poor quality and lack of verification, and that the trial judge wrongfully rejected a medical report clarifying the cause of death. Furthermore, it was contended that the respondent had no standing to seek damages on behalf of the deceased, as he did not personally suffer injury or show evidence of dependency. They also questioned the failure to join the Nigeria Police Force in the suit and claimed that the seizure of the deceased’s phone during the investigation was lawful. Lastly, they disputed the N50 million damages awarded, arguing that no cause of action was made against the first appellant and the judgment was unsupported by evidence.

In response, the respondent’s counsel defended the claims, arguing that the deceased’s arrest was not based on reasonable suspicion, making his detention unlawful. Counsel maintained that the photographs were admissible and supported the claim of torture, with no need for further medical evidence. The respondent’s counsel argued that the respondent had properly brought the case on behalf of the deceased and that the trial Court’s award of damages was appropriate given the evidence of the violation of fundamental rights.

DECISION/HELD:

On the whole, the appeal was allowed.

RATIO:

CONSTITUTIONAL LAW – CONSTITUTIONAL RIGHT: Whether a claim of fundamental right not to be tortured or subjected to inhuman and degrading treatment can be brought on behalf of a dead person

“it has been also stated by very high authority that the fundamental right not to be tortured or subjected to inhuman and degrading treatment protected by Section 34 of the 1999 Constitution, which is one of the foundations of Respondent’s action as per his first declaration, must be one that the Court can intervene to make orders to stop; that torture or degrading inhuman treatment done and finished with, as in the allegation of respondent here, is not what is contemplated by Section 34 of the Constitution. That was also confirmed in Chief Dr (Mrs) Funmilayo Ransome-Kuti & amp; Ors v. The Attorney General of the Federation & amp; Ors (1985) LPELR-2940 (SC) p.92, per Oputa, JSC, thus:

“The words of Section 19 of the 1963 Constitution of Nigeria [the equivalent of S.34 of the 1999 Constitution], namely ‘torture’, ‘punishment’ or ‘treatment’ considered ejusdem generis, do suggest something rather continuous and rather more permanent than an occasional assault and battery committed and done with. They envisage a situation where, on a proper application, the trial High Court may make an order to stop the subsisting ‘torture’, ‘punishment’ or ‘inhuman treatment.” Here, the deceased had long died when the application for enforcement of his fundamental right not to be subjected to torture, punishment and degrading treatment and damages to be paid for that treatment was brought by the Respondent before the High Court of Kano State.”

Per UGO, J.C.A.

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