Extra-judicial killings: Lawyer drags President, AGF to Appeal Court

…..Seeks determination of extent of constitutional right to life

*Photo: Lateef Fagbemi SAN*

An Abuja-based human rights and Constitutional lawyer, Emmanuel Ekpenyong Esq., has dragged President Bola Tinubu and Chief Lateef Fagbemi, SAN, the Attorney-General of the Federation (AGF) and Minister of Justice, to Court of Appeal, Abuja Division for the determination of the extent of his fundamental right to life guaranteed under Section 33 of the 1999 Constitution amidst alleged increasing cases of extra-judicial killings in the country.

Ekpenyong filed the appeal after a Federal High Court, Abuja, presided over by Justice Nkeonye Maha, dismissed his fundamental enforcement rights suit for lack of locus standi (legal right) to institute the matter.

The lawyer had alleged that the increased and wanton loss of lives in Nigeria in recent times has put him in reasonable apprehension that his right to life, which the defendants in the suit were mandated to protect under Chapter VI of the Constitution, was likely to be contravened.

He had sued the President of Nigeria and the AGF and Minister of Justice as 1st and 2nd defendants in the matter.

In his originating summons dated and filed on July 10, 2020, the plaintiff submitted six questions for determination.

These included whether his “right to life as enshrined in Section 33(1) of the 1999 Constitution (as amended) means the protection of his 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 his life.”

Ekpenyong, therefore, sought eight reliefs including “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 and ensure that every unlawful death committed are thoroughly investigated and the culprit arraigned before a court of competent jurisdiction.”

He also sought “an order of mandatory injunction compelling the defendants to take immediate steps to improve the remuneration and welfare package of the Nigerian police and other law enforcement agencies in Nigeria and reorient them on what the right to life entails and the extent of their powers in criminal investigations.”

In response to the suit, the defendants jointly filed a counter-affidavit and written address, contending that Ekpenyong’s supporting affidavit offended the provisions of Section 115(2) of the Evidence Act, 2011.

They argued that the lawyer had no locus standi to file the suit and had not made out a case to be granted the reliefs sought.

Justice Maha, who dismissed the suit, on May 6, 2022, awarded a N100, 000 cost against the lawyer.

But Ekpenyong in a notice of appeal dated and filed on July 22, 2022, appealed against the Judgment.

In an  appellant’s brief with appeal number: CA/ABJ/CV/1200/2022 dated Dec. 22, 2022 and filed on Dec. 23, 2022, Ekpenyong urged the Appeal Court to hold that the trial court’s judgment amounted to a miscarriage of justice when it held that some paragraphs of his affidavit were incompetent and failed to determine the germane questions of law on the extent of his right to life under Section 33 of the Constitution.

The appellant who urged the court to hold that he has locus standi to institute the suit before the trial court, prayed the appellate court to hold that he has disclosed a reasonable cause of action against the respondents under Section 46 (1) of the constitution which entitles him to the reliefs sought.

The lawyer contended that his suit at the trial court was for the court to determine the extent of his right to life to enable him take proactive steps to protect it now that he is alive.

Ekpenyong, who urged the upper court to vacate the N100, 000 cost awarded against him, prayed the court to set aside the lower court’s judgment, allow his appeal and grant the reliefs sought in the originating summons.

But the respondents, in their joint respondents’ brief, dated and filed on July 18, 2023 by their counsel, O. A. Oloruntogbe in the Civil Appeals Department of the Federal Ministry of Justice, argued that the trial court held rightly in striking down part of the paragraphs in Ekpenyong’s affidavit for offending the rules of the Evidence Act, 2011, in Section 115 (2).

They argued that the identified offensive paragraphs are mostly opinions, prayers, legal arguments and conclusions, which are not allowed to be in affidavit evidence, mostly drawn from the lawyer’s imagination and devoid of any factual basis.

“We submit, therefore, that the learned trial court was correct in striking out the offending paragraphs and urge my lords to so hold,” they told the Appeal Court.

In his appellant’s reply brief dated and filed on Sept. 1, 2023, Ekpenyong said there was a clear distinction between legal arguments and legal facts (juridical facts) under Section 115(3) of Evidence Act.

According to him, while legal arguments affect the competence of an affidavit, the law allows for juridical facts to be stated in an affidavit because they are “facts” within the meaning of Section 115(3) of the Evidence Act.

“Facts are statements of something which actually exists. This means a statement that Section 33(1) of the 1999 Constitution provides for the appellant’s right to life is indeed a fact.

“It is settled law that a deponent is to depose to facts that are either of his own personal knowledge or state a source from which he believes the facts derived therefrom is true,” he argued. 

Ekpenyong further argued that the need to protect the sanctity of the constitution and maintain the sacredness of fundamental human rights in Nigeria has made Nigerian courts to abandon the narrow view on locus standi in constitutional matters.

The appeal, which is ripe for hearing, has the President of Nigeria and the AGF as 1st and 2nd respondents.

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