Sat. Jul 31st, 2021

Alleged Extra-Judicial Killing: A’Court Orders High Court To Hear N4bn Suit Against IGP, Akpoyibo, Others

Akaraka, One Of the Applicants In The Suit

Alleged Extra-Judicial Killing: A’Court Orders High Court To Hear N4bn Suit Against IGP, Akpoyibo Others

The Lagos Division of Court of Appeal, has ordered the High Court of Lagos State to resume hearing of N4 billion fundamental right enforcement suit, instituted against Inspector-General of Police (IGP) and a former Commissioner of Police in Lagos, AIG Marvelous Akpoyibo (retired) and three others, over the alleged extra-judicial killing of four Ladipo Market traders, on July 21, 2001.

The three-man panel headed by Justice Jamilu Mammama Tukur, also disqualified the trial judge, Justice Oyindamola Ogala, from presiding over the suit.

The order of the court was sequel to the setting aside the ruling of Justice Oyindamola Ogalla, which struck out the suit instituted against IGP, Akpoyibo, Attorney-General of the Federation (AGF) Attorney-General of Lagos State, Commissioner of Police, Lagos State and Divisional Police Officer, Aguda.

The traders that were allegedly killed by  the police are: Anthony Ezenwafor, Chukwuemeka Ezeofor, Izuchukwu Ezeama, and Aloysius Osigwe.

The applicants in the suit marked LD/354MFHR/2014 were: Akaraka Chinweike Ozeonara; Chris Okpara; Remigus Ezenwane and Ifeanyi Okoye.

Akaraka and others had March 27, 2014, approached a Lagos High Court, presided over by Justice Oyindamola Ogala, seeking a declaration that the killing of Anthony Ezenwafor, Chukwuemeka Ezeofor, Izuchukwu Ezeama, and Aloysius Osigwe, by the Police Officers serving under the Divisional Police Officer (DPO) of Aguda Police Station, attached to Area ‘C’ Police Command, Surulere, Lagos State, Nigeria on Sunday 21, July, 2001, was unconstitutional, extra judicial, illegal and  an infringement on right To life, liberty and dignity. 

They also sought an order of the for  payment of the sum of N4 billion, as damages and compensations to the families of the said four victims for the unlawful killing and unjust and illegal Termination of their lives. And an order directing IGP and Mr. Akpoyibo (the then Area Commander of Area C) or any other person; or body of persons to conduct full and unbiased investigations into the incident and punitive measures taken against all those found to have hands in the dastardly act. 

In the suit, the appellants claimed that the deceased were arrested and killed on the 1st July, 2001, on the suspicion that they were armed robbers working for their ex-boss whom they had served before securing their own business independence. 

They claimed that the killing of the traders constitutes an infringement to their fundamental right to life, liberty and dignity, as enshrined in sections 33, 34, 35 of the The Constitution of the Federal Republic of Nigeria, 1999 as amended and Articles 2, 5, 14, 15 and 19 of the African Charter on Human and Peoples Rights Cap A9 Laws of the Federation, Nigeria, 2004. 

The respondents in their various preliminary objections to the application, urged the court to dismiss the applicants’ suit on the ground that the applicants have no right to file the suit.,
Justice Ogala in her ruling delivered on March 9, 2015, held that: “the reliefs being claimed in the circumstances could not be brought pursuant to the fundamental rights enforcement procedure. The enforcement of the fundamental right to the life of the deceased person could not have been commenced by the applicants on behalf of the deceased persons”.

The judge had consequently struck out the application.

Dissatisfied with the ruling, Akaraka and  other applicants through their counsel, Mrs. Funmi Falana, appealed Justice Ogala’s decision through a notice of appeal dated March 1, 2019 and filed on March 6, 2019, with one ground of appeal.

appellants’ counsel formulated a sole issue for determination To wit: Wherein the lower court was right to have denied The appellants redress under the Fundamental Right (Enforcement Procedure) Rules” 

While the third to fifth respondents through their counsel, filed their various preliminary objections and urged the court to hold that the lower court was right to have struck out the applicants’ suit

Delivering judgement on the appeal, Justice Jamilu Yammama Tukur in his judgement while cited several plethoras of authorities held that: “it is clear that the action before The lower Court was properly brought under the auspices of the FREP Rules because it was brought by an Association for the purpose of enforcing the right of its members that had been breached. 

“This honourable Court believes and find that the provisions of Clause 3{e}(v) cannot vest upon a dead person or deceased legal capacity to seek for the enforcement of his or her fundamental rights and that the legal incompetent cannot be redeemed by any after person or group of persons suing on his or her. behalf. Therefore where a person an whose behalf the application is premised is dead and therefore no longer a juristic person, he cannot be an applicant under the fundamental Rights Enforcement Procedure as he no longer has any.

“In deed the right provided for in Section 33 of the Constitution (as amended) is a personal rights that can be protected or enforced through the special procedure but the procedure is extinguished at the death of the person and relief available thereafter is by an action properly commence by a writ of summons under the rules of this Court 

“The above analysis by the learned trial Judge do not represents the correct position of the law on the point and did not also take into account the provisions of the preamble and objectives of the 2009, fundamental Rights Enforcement Rules which clearly open a window for public interest litigation to any person or association, that has 100% interest in the continued existence of the deceased to maintained an action as it was done by the in the instant case. 
“It is against this background that I resolve the lone issue in favour of the appellants. The appeal is meritorious and same is allowed by me. 

“The ruling of the lower Court delivered on 9th March, 2015 in Suit No. LD/354MFHR/2014 is hereby set aside. I make no order as to cost, parties to bear their respective costs”.

Other panel members, Justice Obande Festus Ogbuinya and Justice Balikisu Bello Aliyu agreed with the judgment of  Justice Tukur.

In addition to the decision, Justice Aliyu held that; “the trial court was clearly in error to hold that the deceesed’s right to life cannot be enforced by the Appellants in view of the Fundamental Rights (Enforcement Procedure) Rules 2009.

“I set out the ruling of the trial court delivered on the 9th March, 2015,  and order that the case proceed at the lower court for determination on the merit, but before a different Judge other than Hon. Justice O. A. Ogala”