AGUPUGO & ANOR v. PSC & ORS (2020)

AGUPUGO & ANOR v. PSC & ORS

(2020)LCN/14556(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Monday, August 03, 2020

CA/AW/155/2015

RATIO

PLEADINGS: THE ENFORCE-ABILITY OF SECTION 33 (1) OF THE 1999 CONSTITUTION IN THE FACE OF SECTION 46 (1) OF THE 1999 CONSTITUTION, PARAGRAPH 3 (E), ORDER 1 RULE 2 OF THE FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE RULES 2009.

Sections 33 (1) and 46 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) provide thus:
“33 (1): Every person has a right to life, no one shall be deprived intentionally of his life, save in execution of a sentence of a Court in respect of a criminal offence of which he has been found guilty.”
“46 (1): Any

person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court for redress.”
Section 46 (3) of the said 1999 Constitution provides thus:
“46 (3): The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.”
It is sequel to the provision in Section 46 (3) of the Constitution (supra) that the Chief Justice of Nigeria enacted the Fundamental Right (Enforcement Procedure) Rules, 2009.
Paragraph 3 (e) of the preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009 provides, inter alia, as follows:
“Human rights activists, advocates or groups as well as any non governmental organization may institute human rights application on behalf of any potential applicants.”
Those regarded as applicants in cases of Human Rights are:
1. Anyone acting on his own interest.
2. Anyone acting on behalf of another person.
3. Anyone acting as a member of, or in the interest of a group or class of persons.

Anyone acting in the public interest.
5. Association acting in the interest of its members or other individual or group.
I have quoted some sections of the 1999 Constitution (as amended) and the FREPR, 2009 for the purpose of advancing and not restricting the rights enshrined in Chapter IV of the 1999 Constitution, the provisions of the African Charter on Human and Peoples’ Rights and that of the Universal Declaration of Human Rights. It is obvious therefore that there is a major difference between the provisions of the FREPR 1979, the 1979 Constitution vis-a-vis FREPR 2009 and the 1999 Constitution. The reliance by the lower Court on the FREPR 1979, the 1979 Constitution and this Court’s decision in Ezeadukwa v. Maduka (supra) decided pursuant the FREPR, 1979 and the 1979 Constitution is in error, and I so hold.
This is for the simple reason that Section 46 (1) of the 1999 Constitution (as Amended) makes enforceable all rights contained in Chapter IV of the 1999 Constitution, whether such rights “has been, is being or likely to be contravened.” The 1999 Constitution did not bar the enforcement of the right, to life nor

did the said constitution modify its enforceability to only when it is “likely to be contravened.” The main objective of the FREPR, 2009 is to ensure and enhance the advancement of the rights of the citizen. That is why it states in its preamble that:
1. The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules or any other law and whenever it applies or interprets any rule.
2. Parties and their legal representatives shall help the Court to further the overriding objectives of these Rules.
3. The overriding objectives of these Rules are as follows:
a. The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied with a view to advancing and realizing the rights, and freedoms contained in them and affording the protections intended by them
b. …
c. For the purpose of advancing, but never for the purpose of restricting the applicant’s right and freedoms, the Court may make consequential orders as may be just and expedient.
d. The Court shall proactively pursue and enhance access to Justice for all classes of litigants especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated and the unrepresented.
e. …
f. The Court shall in a manner calculated to advance Nigeria democracy, good governance, human rights and culture pursue the speedy and efficient enforcement and realization of human rights.
See RUMUGU AIR AND SPACE NIGERIA LTD v. FEDERAL AIRPORTS AUTHORITY OF NIGERIA & ANOR (2016) LPELR – 41506 (CA).
It is my finding that the preamble to the FREPR 2009 in paragraphs 3 (a) and (b) enjoins the Courts to expansively and purposely interpret and apply the provisions of the 1999 Constitution and other international instruments and protocols with a view to advancing and realizing the rights and freedom contained in them and affording the protection intended by them for the purpose of advancing, but never for the purpose of restricting the applicant’s rights and freedom which was totally ignored by the learned trial Judge in reaching his conclusion.
It is therefore my finding that Section 33 (1) of the 1999 Constitution can be enforced pursuant to Section 46 (1) of the said 1999 Constitution, and paragraph 3 (e) of the preamble to the FREPR 2009. Per BITRUS GYARAZAMA SANGA, J.C.A.

RATIO

PLEADINGS: WHETHER THE CONSTITUTIONAL RIGHT TO LIFE OF THE DECEASED CAN BE ENFORCED BY THE APPELLANTS WHO ARE HIS RELATIONS

whether the Constitutional right to life of the deceased can be enforced by the appellants who are his relations is also answered in the affirmative. The learned trial Judge in his judgment delivered on 12th June, 2013 held, inter alia that:
“The legal position of the applicants, the widow of the man who has had his life illegally terminated, cannot maintain an action under the Fundamental Right Enforcement Rules.”
This finding by the lower Court was based on the 1979 Constitution and the Fundamental Rights (Enforcement Procedure) Rules, 1979 upon which this Court reached its decision in Ezeadukwa v. Maduka (supra) which was cited, quoted and relied upon by the learned trial Judge in reaching his decision. Fortunately for the Nigerian judicial system, in the 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules, 2009 the definition of an applicant was expanded by paragraph 3 (e) of the preamble to the FREPR, 2009 to include the party who files an application or on whose behalf an application was filed under these Rules. I have quoted paragraph 3 (e) of the preamble to the FREPR, 2009 in my finding in issue 1 above to show that there is a departure from the provisions of the 1979 Constitution and FREPR, 1979. Under the current dispensation, the Appellants falls under the definition of Applicants in Order 1 Rule II of the FREPR, 2009 particularly the preamble.
In FAITH OKAFOR v. LAGOS STATE GOVERNMENT & ANOR (2016) LPELR – 41066 (CA) this Court per OGAKWU, JCA held thus:
“I reiterate that for a cause of action to be cognizable under the Fundamental Rights Enforcement Procedure, the cause of action must come within the ambit of the enforcement of any right contained in Chapter IV of the Constitution in the sense that it alleges that any of the provisions of the Chapter has been, is being or is likely to be contravened. Relief 1.3 is clearly an enforcement of the right of freedom of movement enshrined inSection 41 (1) of the Constitution. The reasoning of the lower Court that the relief was not personal to the Applicant seems to have overlooked the liberalization of the procedure and the overriding objectives for enforcement of Fundamental Rights and that anybody, not necessarily the person whose right has been infringed can bring the application to enforce the right as stated in paragraph 3 (e) of the preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009. The lower Court therefore got it wrong when it struck out Relief 1.3 on the ground that it was not personal to the Appellant and was not within the ambit of the Fundamental Rights Rules.” (page 13 -14, Paragraphs A – B).
Upon considering the holding by this Court above, it is obvious that a suit can be instituted under the FREPR, 2009 by any one affected by the action of the respondents, which in this case are the widow and the mother of the deceased (a victim of the uncontrolled use of firearms by the 5th Respondent). It does not matter whether the victim of the constitutional right infringement is dead or alive.
In MRS. PRECIOUS OMONYAHUY & ORS v. THE INSPECTOR GENERAL OF POLICE & ORS (2015) LPELR – 25581 (CA) this Court per AUGIE, JCA (now JSC) held, inter alia, thus:

“Under public interest litigation, it is not necessary that the applicant has suffered some injury of his own or has had personal grievance to litigate. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or the African Charter on Human and Peoples Rights and to which the applicant or some other potential applicant is entitled, has been, is being, or is likely to be infringed may apply to the Court in the state where the infringement occurs or is likely to occur, for redress…..”
“It appears that we have charted a way to the answer to our question – the constitutional right to life of a dead man can be enforced by his dependants.”
The holding by this Court on the rights of the dependants of a deceased victim of a constitutional right infringement to enforce the right of their deceased relative is in pari materia with the facts and circumstances of this appeal. As I stated above under issue 1, human rights actions are public interest litigation as provided by paragraph 3 (e) of the preamble to the FREPR, 2009. Therefore, the holding by the learned trial Judge that relations of a deceased victim of fundamental right infringement that lead to loss of life cannot sue is no longer the position of the law. Per BITRUS GYARAZAMA SANGA, J.C.A.

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

1. CHINENYE AGUPUGO 2. MRS. FLORENCE AGUPUGO APPELANT(S)

And

THE POLICE SERVICE COMMISSION 2. INSPECTOR-GENERAL OF POLICE 3. THE COMMISSIONER OF POLICE ANAMBRA STATE 4. THE ATTORNEY-GENERAL OF THE FEDERATION 5. ELISHA PETERS RESPONDENT(S)

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The 1st Appellant is the wife of one Onyeka Ignatus Agupugo (now deceased) while the 2nd Appellant is the biological mother of the said Onyeka Ignatus Agupugo. By a motion on notice dated 19/12/2011 and filed on 20/12/2011 the Appellants as Applicants commenced this suit before the high Court of Anambra State, holden at Awka against the Respondents pursuant to Order 2 Rule 1 and 2 of the Fundamental Rights Enforcement Procedure Rules, 2009. Sections 33 and 46 of the 1999 Constitution (as amended); Article 4 of the African Charter on Human and People’s Rights; Article 3 of the Universal Declaration of Human Rights and under the inherent jurisdiction of the lower Court seeking for the following reliefs and orders.
1. An order of the Hon. High Court declaring that the extra judicial murder and or killing of the applicants’ Husband and Son, Onyeka Ignatus Agupugo by the Respondent is illegal, outrageous, unconstitutional and a gross violation of the victims fundamental human rights as enshrined under Section 33 of the 1999 Constitution, as amended, Article 4 of the African Charter

on Human And Peoples Rights and Article 3 of the Universal Declaration of Human Rights.
2. A Declaration that the summary execution of the Husband and Son (Onyeka Ignatus Agupugo) of the Applicants without any Court order or just cause is a gross violation of the deceased’s right to fair hearing as provided for under Section 36 of the 1999 Constitution, Article 7 of the African Charter on Human and Peoples’ Right and Article 10 of the Universal Declaration of Human Rights.
3. An order compelling the Respondents to pay the Applicants the sum of N1Billion as aggravated damages and or compensation for the callous, barbarous and outrageous act of killing, murder and or Annihilation of the Appellants’ Husband and Son, Onyeka Ignatus Agupugo without justification. (pages 1-2 of the Record of appeal).

A 13 paragraph affidavit in support accompanied the motion paper. (pages 4 – 11 of the Records). The grounds upon which the reliefs are sought are:
a. By virtue of Section 33 of the 1999 Constitution, Article 4 of the African Charter on Human and Peoples Right, Article 10 of the Universal Declaration of Human Right: “Every

person has a right to life and no one should be deprived intentionally of his life, save in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty in Nigeria”.
b. The Respondents have failed to observe and apply the law empowering them to serve and protect lives of Nigerians and particularly that of the applicant’s husband and son Onyeka Ignatus Agupugo when they shot the deceased on the fore head and killed him for no just cause.
c. That the extra judicial murder of Onyeka Ignatus Agupugo, the husband and son of the applicants by the respondents outrages the conscience of mankind and constitutes gross disregard and contempt for the law, a bizarre and arrogant misuse of the power and total violation of the deceased right to life and fair hearing.
d. That where there is wrong, there is a remedy hence the claim for aggravated damages and or compensation.

A written address also accompanied the application. The Appellants as Applicants also filed another motion on notice on 17/4/2012 seeking for the following:
1. An order of Court granting leave to the 1st Applicant to amend and

re-swear her affidavit dated 20th December, 2011 in support of their originating motion.
2. An order of Court deeming the amended and re-sworn affidavit attached to this application as properly filed and served. (Pages 36 -37 of the Record of appeal).

The reliefs were granted during hearing on 26/2/2013 (page 188 of the Records). The 1st Applicant’s re-sworn affidavit in support containing 13 paragraphs dated and filed on 17/4/2012 is at pages 42 – 45 of the Record of appeal.

On 3/5/2012, the 3rd Respondent filed a 7 paragraph counter affidavit deposed to by one Corporal Danjuma Okoh. In paragraphs 5 (b), (c), (e), (f) and 6 the deponent averred as follows:
“b. That as the struggled ensued, ensured, the 5th respondent overpower (sic) the driver of the motorcycle, took the motorcycle key while the driver of the motorcycle and his two passengers followed the police team protesting”.
“c. That it was in the course of argument between the motorcycle driver, his two passengers, including the deceased, that the 5th Respondent without any authority whatsoever shot and killed Mr. Onyeka Ignatius Agupugo, the

deceased”.
“e. That the 3rd Respondent did not in any way or at any time instruct or order the 5th Respondent to engage in any extra Judicial killing.”
“f. That because the 5th Respondent acted outside his detail and in contravention of existing police order and rules, he was promptly dismissed and charged to Court on 1/9/2011. A copy of charge sheet dated 31/8/11 is hereby annexed and marked exhibit “A”.
“6. The 3rd Respondent did not violate any of the Fundamental Rights of the Applicants nor even that of their deceased relation because the 3rd Respondent never in any way order his killing. The Applicants are not entitled to the reliefs sought from the 3rd Respondent”. (pages 56 -57 of the Records).

The document referred to as exhibit ‘A’ in paragraph 5 ’A’ is attached to the said counter affidavit of the 3rd Respondent. A written address also accompanied the counter affidavit. (pages 59 – 62 of the Records)

On pages 78 -81 of the Record of appeal, the Applicant filed a response to the counter affidavit and written address by the 3rd Respondent.

On 14/5/2013, learned counsel to the Respondent filed a motion seeking for:
1. An order for extension of time within which the 5th Respondent/Applicant can file and serve his counter Affidavit and Written Address in this case out of time.
2. An order deeming the said Counter Affidavit and Written Address separately filed out of time as properly filed and served, the appropriate filing fees and cost having been paid. Affidavit in support and a written address accompanied the motion paper (pages 88 – 94 of the Record of appeal).

The 5th Respondent’s counter affidavit containing 13 paragraphs and a written address is at pages 95 – 103 of the record of appeal. The said counter affidavit was deposed to by one Adeyemi Philip, who stated that he is the younger brother of the 5th Respondent. He narrated his version of what happened on the fateful day at paragraphs 5, 6, 7, 8 and 9 as follows:
5. That paragraphs 8 and 9 of the Applicant affidavit are false and I vehemently denied and in answer there to, I state as follow:
a. That pursuant to the laws and rules guiding police force in Nigeria, the police patrol team made up of four

officers including the 5th Respondent were on routine patrol in Agulu at Anaocha Local government Council of Anambra State on 13 August, 2011 at about 4.30pm when they spotted a commercial cyclist carrying two young men as passengers and stopped them for a search, but the cyclist was stubborn and engaged one of the officers of the 3rd Respondent (which was not the 5th Respondent) in struggle over the collection of the cyclist motorcycle key.
b. That as the struggle ensued the officer overpower the cyclist, took the motorcycle key and handed it over to the 5th Respondent while the cyclist and his passengers followed the police team protesting.
c. That thereafter the cyclist and his passengers stated fighting the 5th Respondent in order to get the motorcycle key from him despite the incessant advice to the cyclist by the 5th Respondent to meet with the police team who handed over the key to the 5th Respondent for settlement.
d. The cyclist and his passengers declined this advice and continued to harass the 5th respondent at his duty post and at that stage, attempted to collect his service gun.
e. That as the scuffle continued between the

cyclist, his passengers and the 5th Respondent, the 5th Respondent rifle/gun exploded accidentally and killed the cyclist on the spot.
f. That the deceased commercial cyclist was later identified as Onyeka Ignatius Agupugo.
g. That after this incident the 5th Respondent quickly reported the matter at a police station in Awka where he was immediately arrested and charged before a Magistrate Court at Nnewi.
h. That the 5th Respondent did not hit any of the passengers with his gun nor did he threaten to shoot anybody including the deceased before the incident that led to the death of the deceased.
6. That contrary to paragraph 5(e) of the 3rd Respondent Counter Affidavit, the 5th Respondent did not in any way or at any time engage in extra- Judicial killing as the incident that led to the demise of the deceased was an accidental discharge which emanated from the 5th Respondent’s gun in the course of the attempt by the deceased and his passenger to forcefully take the gun from him.
7. That contrary to paragraph 5(f) of the Respondent Counter Affidavit the 5th Respondent did not act outside his detail and did not contravene any

existing police order and rules.
8. That the 5th Respondent did not violate any of the fundamental Rights of the Applicants nor that of the deceased because the 5th Respondent never in any way intended to kill the deceased and never had the opportunity to do so.
9. That this case is purely a case of accidental discharge. (pages 96 – 97 of the Records).

The 2nd Respondent also filed a motion on notice on 23/5/2013 seeking for the following relief:
1. An order striking out the name of the 2nd Respondent (pages 104 – 105 of the Records).
The grounds upon which the application is brought are:
1. By the provision of Section 341 of Police Act CAP P.19 L.F.N 2004 the 2nd Respondent is exonerated from liability.
2. From both the statutory statements and affidavits in support of the Applicants’ motion, the 2nd Respondent is not vicariously liable to the claim of the Applicants.
3. The applicants lack the locus standi to sue the 2nd Respondent.

A 6 paragraphs affidavit in support and a written address accompanied the motion paper. (Pages 104 -113 of the Records).

Hearing of the application commenced

on 28/2/2012 and the learned trial Judge, after hearing the oral submissions by learned counsel to the parties, delivered his judgment on 12th June, 2013. In his judgment which is at pages 122 – 124 of the record of appeal, the learned trial Judge held, inter alia that:
“With respect to Fundamental Human Right Rules it has been said that an application for the enforcement of the fundamental right of a dead person cannot succeed. On the authority of Boniface Ezeadukwa v. Peter Maduka (1997) 4 NWLR (pt. 518) 635 at 660 where the Court of Appeal held that Section 30 (1) of the 1979 Constitution could not be involved (sic) to challenge the unlawful killing of any person. Tobi JCA (as he then was).….”
“Accordingly, the right is not enforceable under the first two limbs of Order 1 Rules 2 (1) which are similar to the first two sectors (sic) of Section 42(1) (sic) of the 1979 Constitution. The position is analoguous to the offence of suicide in relation to the deceased. The difference however is that in the case of Section 30 of the Constitution, there is no person to enforce the right but in the case of the suicide,

that there is no one to prove since Section 30 is not enforceable under the first two limbs of Order 1 Rules 2 (1) which provides for the enforcement of the right that has been or is being infringed, the right is enforceable only under the third limb. By the third limb, an applicant can enforce Section 30 right if the right is likely to be infringed.”
“The position of the law is well stated in the above case. The legal position is that the Applicant, the widow of the man who has had his life illegally terminated cannot maintain an action under the Fundamental Right (Enforcement) Procedure Rules.”
“In the final analysis, I hereby dismiss the application as lacking in merit.”
“I shall make no order as to cost.”

The Applicants were grieved with this decision so they filed one ground of appeal, (pages 125 – 127 of the Records). However, by an Order of this Court the Appellants filed an Amended Notice of Appeal dated 19/5/2017, filed on 22/5/2017 but deemed properly filed and served on 1/2/2018 containing two grounds of appeal.

The Appellants’ brief of argument was settled by P.A.N

Ejiofor Esq. It was filed on 19th March, 2018. Learned Counsel formulated two issues out of the two grounds of appeal as follows:
1. Whether the constitutional provision of Section 33 (1) of the 1999 Constitution is unenforceable in the face of Section 46 (1) of the 1999 Constitution, paragraphs 3 (e), OR 1 R 2 of the Fundamental Right Enforcement Procedure Rules 2009.
2. Whether the Constitutional right to life of the deceased can be enforced by his defendants or relations/APPELLANTS.

I took note of the motion filed by the Appellants dated 20/4/2018 urging this Court for an order that this appeal be heard and determined solely on the basis of the appellants brief of argument the respondents having failed, refused, neglected and or defaulted in filing and or serving their respondents’ brief of argument. This Court granted the application on 2nd May, 2018 thus foreclosing the respondents from filing their briefs. Therefore, this appeal shall be heard and determined on the Appellants’ brief alone. I will consider the submission by counsel on the two issues before making my findings.

In his submission while arguing issue 1, Learned

counsel to the Appellants submitted that the learned trial Judge while determining this matter placed reliance on this Court’s decision in BONIFACE EZEADUKWA v. PETER MADUKA (1997) 4 NWLR (pt.51) 660 where in the Court while determining a similar question under the 1979 Constitution as well as under the Fundamental Rights Enforcement Procedure Rules, 1979 did not refer to the 1999 Constitution (as amended) or the Fundamental Rights Enforcement Procedure Rules 2009. That the only portion of the 1999 Constitution (as Amended) that is not enforceable is Chapter II which deals with the Fundamental Objectives and Directive principles of State Policy. That all other aspects of our constitution, particularly Chapter IV of the said 1999 Constitution, are not only justiciable but enforceable as those rights are guaranteed not only under the Constitution but also under other international protocols and Articles. Cited Section 1 (1) of the said Constitution.

That since the Constitution is binding on all persons and authorities, then it follows that Section 46 (1) of the said Constitution makes enforceable all rights contained in Chapter IV (supra) whether

such rights “has been, is being or likely to be contravened”. That the said constitution did not exclude the enforcement of the right to life nor did it modify its enforceability to only when it is “likely to be contravened.” That the wording of the Constitution is very clear and can only admit of its literal interpretation. Cited A.G. KWARA STATE v. GBADAMOSI (2016) 27 WRN 1 at 17 -18. Learned Counsel urged the Court to hold that Section 33 (1) of the 1999 Constitution is fully enforceable and fully justiciable while Section 46 (1) of the said Constitution “gives it full enforceablilty.”

In his submission while arguing issue 2, Learned Counsel to the Appellants submitted that the position of the law has since changed from what was obtained under the Fundamental Rights Enforcement Procedure Rules, 1979 and the 1979 Constitution pursuant to which this Court pronounced its decision in Ezeadukwa v. Maduka (supra). That the change is sequel to the Hon. The chief Justice of Nigeria in the exercise of his administrative functions enacted the Fundamental Rights (Enforcement Procedure) Rules, 2009 pursuant to Section 46

(3) of the 1999 Constitution. That the 2009 Rules repealed the 1979 Rules upon which this Court based its decision in Ezeadukwa v. Maduka (supra). That that authority is no longer the law as it has been replaced by the 2009 Rules and the 1999 Constitution. That under the 2009 Rules Order 1 Rule 2 includes a party who filed an application on behalf of a deceased victim of human rights abuse. That under the preamble, paragraph 3 (e) encourage and welcomes public interest litigation in human rights field by providing thus:
“No human rights case may be dismissed or struck out for want of locus standi.”

Learned counsel also quoted The Hon. The Chief Justice of Nigeria in the preamble to the FREPR, 2009, and submitted that there is a “world of difference” between the provisions of the 1979 Constitution and the FREPR, 2009 upon which this application was brought. Cited this Court’s decisions in OKAFOR v. LAGOS STATE GOVERNMENT (2016) 46 WRN 104 at 122 and MRS. PRECIOUS OMONYAHUY & ORS v. THE INSPECTOR GENERAL OF POLICE & ORS. (2015) LPELR – 25581(CA) and the holding by the Indian Supreme Court in SHIR BASU & ORS

STATE OF WEST BENGAL (2005) CHR page 131 Ratio 5 paragraph 164. Learned Counsel urged the Court to resolve this issue in favour of the appellant. He also urged this Court to allow the appeal, set aside the judgment by the lower Court delivered on 12th June, 2013 and award One Billion Naira to the Appellants against the Respondents.FINDINGS ON ISSUES 1 AND 2:
The two issues formulated by the appellants from the two grounds of appeal are:
1. Whether the constitutional provision of Section 33 (1) of the 1999 Constitution is unenforceable in the face of Section 46 (1) of the 1999 Constitution, Paragraph 3 (e), Order 1 Rule 2 of the Fundamental Rights Enforcement Procedure Rules 2009.
2. Whether the Constitutional right to life of the deceased can be enforced by the Appellants.

Sections 33 (1) and 46 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) provide thus:
“33 (1): Every person has a right to life, no one shall be deprived intentionally of his life, save in execution of a sentence of a Court in respect of a criminal offence of which he has been found guilty.”
“46 (1): Any

Anyone acting in the public interest.
5. Association acting in the interest of its members or other individual or group.
I have quoted some sections of the 1999 Constitution (as amended) and the FREPR, 2009 for the purpose of advancing and not restricting the rights enshrined in Chapter IV of the 1999 Constitution, the provisions of the African Charter on Human and Peoples’ Rights and that of the Universal Declaration of Human Rights. It is obvious therefore that there is a major difference between the provisions of the FREPR 1979, the 1979 Constitution vis-a-vis FREPR 2009 and the 1999 Constitution. The reliance by the lower Court on the FREPR 1979, the 1979 Constitution and this Court’s decision in Ezeadukwa v. Maduka (supra) decided pursuant the FREPR, 1979 and the 1979 Constitution is in error, and I so hold.
This is for the simple reason that Section 46 (1) of the 1999 Constitution (as Amended) makes enforceable all rights contained in Chapter IV of the 1999 Constitution, whether such rights “has been, is being or likely to be contravened.” The 1999 Constitution did not bar the enforcement of the right, to life nor

Justice for all classes of litigants especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated and the unrepresented.
e. …
f. The Court shall in a manner calculated to advance Nigeria democracy, good governance, human rights and culture pursue the speedy and efficient enforcement and realization of human rights.
See RUMUGU AIR AND SPACE NIGERIA LTD v. FEDERAL AIRPORTS AUTHORITY OF NIGERIA & ANOR (2016) LPELR – 41506 (CA).
It is my finding that the preamble to the FREPR 2009 in paragraphs 3 (a) and (b) enjoins the Courts to expansively and purposely interpret and apply the provisions of the 1999 Constitution and other international instruments and protocols with a view to advancing and realizing the rights and freedom contained in them and affording the protection intended by them for the purpose of advancing, but never for the purpose of restricting the applicant’s rights and freedom which was totally ignored by the learned trial Judge in reaching his conclusion.
It is therefore my finding that Section 33 (1) of the 1999 Constitution can be enforced pursuant to Section 46 (1) of the said

1999 Constitution, and paragraph 3 (e) of the preamble to the FREPR 2009. This issue is resolved in favour of the Appellant.

In view of my finding on issue 1 above, the answer to issue 2 whether the Constitutional right to life of the deceased can be enforced by the appellants who are his relations is also answered in the affirmative. The learned trial Judge in his judgment delivered on 12th June, 2013 held, inter alia that:
“The legal position of the applicants, the widow of the man who has had his life illegally terminated, cannot maintain an action under the Fundamental Right Enforcement Rules.”
This finding by the lower Court was based on the 1979 Constitution and the Fundamental Rights (Enforcement Procedure) Rules, 1979 upon which this Court reached its decision in Ezeadukwa v. Maduka (supra) which was cited, quoted and relied upon by the learned trial Judge in reaching his decision. Fortunately for the Nigerian judicial system, in the 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules, 2009 the definition of an applicant was expanded by paragraph 3 (e) of the preamble to the FREPR, 2009 to include the

party who files an application or on whose behalf an application was filed under these Rules. I have quoted paragraph 3 (e) of the preamble to the FREPR, 2009 in my finding in issue 1 above to show that there is a departure from the provisions of the 1979 Constitution and FREPR, 1979. Under the current dispensation, the Appellants falls under the definition of Applicants in Order 1 Rule II of the FREPR, 2009 particularly the preamble.
In FAITH OKAFOR v. LAGOS STATE GOVERNMENT & ANOR (2016) LPELR – 41066 (CA) this Court per OGAKWU, JCA held thus:
“I reiterate that for a cause of action to be cognizable under the Fundamental Rights Enforcement Procedure, the cause of action must come within the ambit of the enforcement of any right contained in Chapter IV of the Constitution in the sense that it alleges that any of the provisions of the Chapter has been, is being or is likely to be contravened. Relief 1.3 is clearly an enforcement of the right of freedom of movement enshrined inSection 41 (1) of the Constitution. The reasoning of the lower Court that the relief was not personal to the Applicant seems to have overlooked the

liberalization of the procedure and the overriding objectives for enforcement of Fundamental Rights and that anybody, not necessarily the person whose right has been infringed can bring the application to enforce the right as stated in paragraph 3 (e) of the preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009. The lower Court therefore got it wrong when it struck out Relief 1.3 on the ground that it was not personal to the Appellant and was not within the ambit of the Fundamental Rights Rules.” (page 13 -14, Paragraphs A – B).
Upon considering the holding by this Court above, it is obvious that a suit can be instituted under the FREPR, 2009 by any one affected by the action of the respondents, which in this case are the widow and the mother of the deceased (a victim of the uncontrolled use of firearms by the 5th Respondent). It does not matter whether the victim of the constitutional right infringement is dead or alive.
In MRS. PRECIOUS OMONYAHUY & ORS v. THE INSPECTOR GENERAL OF POLICE & ORS (2015) LPELR – 25581 (CA) this Court per AUGIE, JCA (now JSC) held, inter alia, thus:

fundamental right infringement that lead to loss of life cannot sue is no longer the position of the law. I resolve this issue in favour of the Appellants.

Upon considering the provision of Order 20 Rule II (1) of the Court of Appeal Rules, 2016 it is my finding that pursuant to paragraph 3 (e) of the Preamble to the Fundamental Rights Enforcement Procedure Rule, 2009; Order 1 Rule II (supra); Sections 33 (1) 46 (1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) the reliefs claimed by the Appellants in Suit No. A/MISC. 122/2011 hereby granted as follows:
1. It is hereby declared that the extra judicial murder and or killing of the Appellants’ husband and son Onyeka Ignatus Agupugo by the 5th Respondent, Elisha Peters who is an employee of the 1st, 2nd and 3rd Respondents on 13th August, 20011 is unconstitutional and a violation of the victims Fundamental Human Right as enshrined under Section 33 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) Article 4 of the African Charter on Human and Peoples’ Rights and Article 3 of the Universal Declaration of Human Rights.

It is hereby declared that the summary execution of the husband and son of the Appellants without any Court order or just cause is a gross violation of the deceased’s right to fair hearing as enshrined under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended), Article 7 of the African Charter on Human and Peoples’ Right and Article 10 of the Universal Declaration of Human Rights.
3. It is hereby ordered that the 1st, 2nd, 3rd and 4th Respondents shall jointly and severally pay to the Appellants the sum of Fifty Million Naira (N50,000,000.00) only as aggravated damages and or compensation for the act of killing the said Onyeka Ignatus Agupugo husband and son of the 1st and 2nd Appellants without justification.
There shall be no order as to cost.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have a preview of the judgment delivered by my learned brother, B.G. SANGA, I agree with the reasoning therein advanced to arrive at the final conclusion.

I agree that the reliefs claimed by the Appellants in Suit No. MISC.122/2011 be granted as stated in the lead judgment. I also make no order as to costs.

RITA NOSAKHARE PEMU, J.C.A.: I agree.

Appearances:

P.A.N EJIOFOR, Esq. For Appellant(s)

NO APPEARANCE FOR THE RESPONDENT For Respondent(s)