CAN THE CRIMINALITY INVOLVED IN AN ACT DEPRIVE A PARTY OF MAINTAINING AN ACTION TO ENFORCE HIS FUNDAMENTAL RIGHT?

HEADING: CAN THE CRIMINALITY INVOLVED IN AN ACT DEPRIVE A PARTY OF MAINTAINING AN ACTION TO ENFORCE HIS FUNDAMENTAL RIGHT

CASE TITLE: NPF & ORS v. OMOTOSHO & ORS (2018) LPELR-45778(CA)

JUDGMENT DATE: 30TH OCTOBER, 2018

PRACTICE AREA: FUNDAMENTAL HUMAN RIGHT

LEAD JUDGMENT: UGOCHUKWU ANTHONY OGAKWU, J.C.A.

SUMMARY OF JUDGMENT

INTRODUCTION:

This appeal borders on the Enforcement of Fundamental Rights.

 

FACTS:

This appeal is against the judgment of the Federal High Court, Lagos Division, Coram Judice: Tsoho, J. in SUIT NO. FHC/L/CS/1790/2013: MRS SHERIFAT AZEEZ OMOTOSHO & ORS vs. THE NIGERIA POLICE FORCE & ORS delivered on 24th June 2014. 

By an Originating Summons filed on 31st December 2013, the Respondents as Applicants before the Court, commenced proceedings for the enforcement of their fundamental rights as widow and orphan, children of Azeez Omotosho (Deceased) who was said to have been shot dead by the Police. The Respondents presented the following questions for determination in their Originating Summons:

“1. Whether the killing/murder in cold blood of Azeez Omotosho by the respondents through the 4th respondent is not unlawful and an infringement of the fundamental human right to life of Azeez Omotosho which right is guaranteed by the 1999 Constitution and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990?
2. Whether the killing/murder of Azeez Omotosho by the respondents in the full view and in the presence of the 1st to the 4th applicants being his wife and little children does not amount to torture, degrading and inhuman treatment of the 1st to the 4th applicants and thus the infringement of their fundamental human right of freedom from torture, degrading and inhuman treatment which right is guaranteed by the 1999 Constitution and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990? 

3. Whether the murder of Azeez Omotosho (who was the bread winner of the applicants, husband of the 1st applicant and father of the 2nd to the 4th applicants) by the respondents does not amount to disrespect to the dignity of the person of the applicants and to a threat to the right to life of the applicants which rights are guaranteed under the 1999 Constitution and under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990?
   4. Whether the murder of Azeez Omotosho (who was the bread winner, family head of the applicants, husband of the 1st applicant and father of the 2nd to the 4th applicants) by the respondents does not amount to an infringement of the right to a family of the applicants which right is guaranteed under the 1999 Constitution and under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990?”

The Respondents claimed principal and consequential reliefs. The action was heard on the affidavit evidence and written addresses filed by the parties and in a considered judgment delivered on 24th June 2014, the Federal High Court entered judgment in part for the Respondents. The Appellants were dissatisfied with the judgment and therefore appealed to the Court of Appeal. The Respondent also filed a Cross-Appeal.

 

ISSUES:

The Court determined the appeal on these issues couched as follows:

MAIN APPEAL

1. Whether the action of the Respondents at the lower Court as constituted was competent to confer the requisite jurisdiction on the lower Court to proceed to entertain the action of the Respondents.
2. Whether the Appellants were liable for the death of the deceased.
3. Whether the evidence before the Court justifies the decision of the lower Court particularly in awarding the sum of N250, 000, 000. 00 to the Respondents.

 

CROSS-APPEAL

“Whether the trial Court was right to discountenance the Cross Appellants’ relief no. 1 at the trial for the reasons it advanced.”

 

DECISION/HELD:

On the whole, the Court allowed the main appeal in part. The Cross Appeal was held to be meritorious and same was allowed. The total sum of N100million was awarded as damages in favour of the 1st Respondent/Cross Appellant.

 

RATIOS:

• ACTION – CAPACITY TO SUE AND BE SUED: Whether a minor has the capacity to sue and be sued; effect where a minor is joined with a person with requisite juristic capacity
• CONSTITUTIONAL LAW – ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether the criminality involved in an act deprives a party of maintaining an action to enforce his fundamental rights
• CONSTITUTIONAL LAW – ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Proper approach to determining the justiciability of an action under the Fundamental Rights (Enforcement Procedure) Rules
• DAMAGES – AWARD OF DAMAGES: Position of the law on the award of damages for breach of fundamental right(s)
• EVIDENCE – AFFIDAVIT EVIDENCE: Effect of an affidavit that is self-contradictory