Justice Gladys Olotu of a Federal High Court sitting in Abuja has fixed November 5, 2024, for further mention of a suit filed by an Abuja-based human rights and constitutional lawyer, Emmanuel Ekpenyong, seeking a declaration that the National Assembly (NASS) has powers to summon President Bola Tinubu to answer questions on the steps taken to stop the incessant extrajudicial killings of persons in the country.
Ekpenyong is also praying the court to declare that the President falls within the description of “any person in Nigeria” that can be summoned by NASS under their oversight functions as provided under Sections 88 (1) (b), 89 (1) (c) and (d) of the 1999 Constitution (as amended).
In the originating summons marked, FHC/ABJ/CS/490/2021, which has the President, Federal Republic of Nigeria, Attorney-General of the Federation (AGF), Minister of Justice, and the National Assembly as defendants, Ekpenyong, who wants the court to hold that he has the locus standi (legal right) to file the suit, also wants the court to declare that Sections 88 and 89 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) empower the 3rd defendant to summon the 1st defendant to its Chambers to give information and answer questions on the steps taken to stop the incessant killing of persons in Nigeria.
“A declaration that the plaintiff has disclosed a reasonable cause of action against the defendants to warrant him to institute this action against them.”
Ekpenyong, in his affidavit in support, recalled that in 2020, the House of Representatives, during its plenary, made a resolution to invite former President Muhammadu Buhari to address the insecurity that had befallen Nigeria.
He averred that the lawmakers also asked the ex-president to inform them of the necessary modalities that had been put in place to combat and curtail the brazen activities of bandits, hoodlums, and terrorists in Nigeria, as part of their oversight functions.
“Upon receipt of the resolution of the House of Representatives, the 1st defendant (ex-president) accepted the invitation and announced that he would address the House of Representatives on Thursday, the 10th day of December 2020,” he said.
However, the lawyer said the former AGF, Abubakar Malami, SAN, advised the ex-president not to appear before the lawmakers because of his immunity under Section 308 of the Constitution and added that, “Upon the legal advice of the 2nd defendant, the 1st defendant retracted his earlier promise to honour the invitation of the House of Representatives to answer questions on the protection of lives and properties in Nigeria,” he said.
But in a joint counter affidavit filed by Simon Enock on behalf of the 1st and 2nd defendants on October 10, 2021, the lawyer urged the court to dismiss the suit. A litigation officer, Barnabas Onoja, a staff member of the Federal Ministry of Justice who deposed to the affidavit, disagreed with some paragraphs in the originating summons.
Onoja stated that the security agencies and structure in Nigeria had not failed in any way to curtail the activities of bandits, hoodlums, and terrorists that could result in agitation for the creation of state police in Nigeria.
He said the security agencies had “laudably improved in their efforts to curb the activities of bandits, hoodlums, kidnappers, and terrorists, which is evidenced by the lack of news of bombing and the massive surrender of the repentant members of the terrorist group popularly known as Boko Haram and the freedom with which the plaintiff was able to enjoy by coming out to file this suit.”
Onoja, who alleged that Ekpenyong is not a Nigerian citizen or legal practitioner in Nigeria, argued that the court has no jurisdiction to entertain the suit since the plaintiff had no locus standi.
On his part, the NASS, in its counter affidavit dated February 6, 2023, though it agreed that it could summon any person in the country in the course of its investigation under Sections 88 and 89 of the Constitution, including the President, raised seven legal issues.
The lawmakers asked the court to determine whether the failure of the plaintiff to serve pre-action notice on the NASS pursuant to the provisions of Section 21 of the Legislative Houses Power and Privileges Act before commencing the suit affects the competence of the suit against it, among others.
In response to the joint counter affidavit of the 1st and 2nd defendants and the counter affidavit of the 3rd defendant, the plaintiff contended, amongst others, that his NBA seal on his processes raises a presumption that he is a Nigerian citizen and a legal practitioner, and none of the defendants have rebutted the presumption.
Ekpenyong also contended that the provisions of Section 21 of the Legislative Houses Power and Privileges Act are inferior legislation that is subject to the almighty constitution, for which he seeks its interpretation.
He equally argued that the President’s immunity under Section 308 of the Constitution covers only criminal and civil proceedings in his personal capacity and does not extend to his official capacity.
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