Appeal Court reserves judgment on appeal to address extra-judicial killings in Nigeria

The Court of Appeal, Abuja Division, has reserved judgment on an appeal seeking to address the prevalence of extra-judicial killings in the country.

The appellate court reserved the judgment after parties argued their case for and against the appeal and adopted their briefs of argument on January 16, 2024.

Recalls that Emmanuel Ekpenyong, a Nigerian citizen and legal practitioner of the law firm of Fred-Young & Evans LP, appealed against a judgment delivered on May 6, 2022, by Justice Nkeonye Maha of a Federal High Court, Abuja Division.

Justice Maha dismissed the suit filed by Ekpenyong against the President, Federal Republic of Nigeria and the Attorney-General and Minister of Justice of the Federation as 1st and 2nd defendants, but respondents in the appeal number: CA/ABJ/1200/2022.

Ekpenyong alleged that the wanton loss of human lives in Nigeria in recent times has put him as a “person” described under Section 33 (1) of the Nigerian Constitution in reasonable apprehension that his right to life under Section 33 (1), Chapter IV of the Nigerian Constitution is likely to be contravened.

In the originating summons marked: FHC/ABJ/CS/755/2020 dated and filed July 10, 2020, the plaintiff submitted six questions for determination.

Ekpenyong urged the court to determine whether his right to life enshrined in Section 33 (1) of Nigerian Constitution “means the protection of the plaintiff’s life beyond mere physical and animal existence and extends to the right to live a meaningful, complete and dignified life?

“Whether the plaintiff’s right to life enshrined in Section 33 (1) of the 1999 Constitution prohibits any unlawful acts of omission or commission by the Nigerian state, Nigerian police, other law enforcement agents and private individuals which are capable of terminating the plaintiff’s life?

“Whether the plaintiff’s right to life enshrined in Section 33 (1) of the 1999 Constitution extends to the right against torture and inhuman treatment, right to personal liberty, right to fair hearing, right to private and family life, right to acquire and own immovable property anywhere in Nigeria, right to adequate compensation upon compulsory acquisition of property as enshrined in Sections 34 to 44 of the 1999 Constitution, among others.”

He then sought an order of mandatory Injunction compelling the defendants to take immediate steps to overhaul and reform the Nigerian police and other law enforcement agencies to incorporate forensic science in their criminal investigations to address extra-judicial killings by both state and non-state actors.

He said this would also help to ensure that every unlawful death committed are thoroughly investigated and the culprit arraigned before a court of competent jurisdiction, among other reliefs.

In the judgement, Justice Nkeonye Maha held that Ekpenyong failed to present sufficient facts in proof of the case.

The judge, who dismissed the suit for lack of reasonable cause of action against the defendants, awarded a cost of N100,000.00 against the plaintiff.

But in a notice of appeal dated June 29, 2022, the lawyer, an appellant, prayed the Appeal Court to allow the appeal and set aside the whole judgement.

The appellant, who urged the upper court to also set aside the N100, 000 cost, sought an order granting all the reliefs sought in his originating summons filed on July 10, 2020.

Also in his brief dated Dec. 22, 2022, and filed Dec. 23, 2022, Ekpenyong prayed the court to hold that the decision of the trial court amounted to a miscarriage of justice when it held that some paragraphs in his affidavit were incompetent and refusing to determine the germane questions of law.

He contended that he is a “person” as envisaged under Section 33 (1) of the Nigerian Constitution and he has locus standi to institute the suit.

He further contended that a Nigerian citizen has a right to apply to courts for interpretation of provisions of the Nigerian Constitution.

He argued that he must not wait for his right to life to be threatened or deprived before he has a right of action because the right is meant to protect his life while he is still alive.

Ekpenyong further argued that under Section 46 (2) of the Nigerian Constitution, mere apprehension that his right to life is likely to be contravened constitutes a reasonable cause of action.

“The prevalence of extra-judicial killings in Nigeria in recent times is a notorious fact which need no further proof,” he added.

Ekpenyong wants the appellate court to hold that he has disclosed a reasonable cause of action against the respondents because the wanton loss of lives in the country in recent times has put him in reasonable apprehension that his right to life is likely to be contravened.

But the respondents prayed the Appeal Court to dismiss the appeal.

In a brief of argument filed by O.A. Oloruntogbe, the 1st and 2nd respondents argued that the principle of justiciability is underpinned by the consideration that judicial procedures are unsuitable and ill-equipped to deal with hypothetical or empty jurisprudential issues such as the appellant’s case.

According to them, there must always be a live issue tied to the subject matter forming the basis upon which a litigant approaches a court for reliefs.

“For courts exist not for fanciful or merely academic claims but to grant reliefs or remedies to an injured party or a party who is likely to suffer an injury,” they said. 

They submitted that Ekpenyong’s  claims that the wanton killings reported in the news put him in the fear of his life was completely misplaced as perceived.

They said “the reliance on a slew of academic papers and online news reports of the spate of crime and alleged police brutality in Nigeria cannot by any stretch of imagination be a breach of the appellant’s fundamental rights, which have not been shown in this case, to have been personally breached.

“Therefore my Lords, we submit humbly that the learned trial court held correctly that the appellant failed to establish any cause of action in his case.”

The defendants equally submitted that the trial court was right when it awarded a N100, 000 cost against Ekpenyong and in favour of the respondents in the suit for being frivolous and vexatious.

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