A human rights and constitutional lawyer, Emmanuel Ekpenyong, has asked a Federal High Court, Abuja Division to declare that the National Assembly, has the power to summon President Bola Tinubu to answer questions on the steps his administration has taken to stop the incessant extra-judicial killings of persons in Nigeria.
Ekpenyong, an Abuja-based legal practitioner from the firm of Fred-Young & Evans LP, in an originating summons marked: FHC/ABJ/CS/490/2021, dated and filed June 17, 2021, sued the President, Federal Republic of Nigeria; Attorney-General of the Federation and Minister of Justice, and the National Assembly as 1st to 3rd defendants respectively.
When the matter was mentioned on Tuesday, the plaintiff asked the presiding judge, Justice Gladys Olotu, to declare that the president is a person under Sections 88 and 89 of the 1999 Constitution that can be summoned by the National Assembly.
He argued that President Tinubu 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).
Ekpenyong in his affidavit hinged his argument on a previous occurrence in 2020, where he said the House of Representatives, during its plenary, resolved to invite former President Muhammadu Buhari to address the insecurity bedeviling the country.
He said the lawmakers also asked the former 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 (Buhari) accepted the invitation and announced that he would address the House of Representatives on Thursday, 10th day of December, 2020”.
However, Ekpenyong, said the former Attorney General of the Federation, Abubakar Malami, (SAN), advised the ex-president not to appear before the lawmaker because of his immunity under Section 308 of the Constitution.
“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.
On this note, Ekpenyong in his application sought four orders, including a declaration that he has the locus standi to institute the proceeding.
“A declaration that the 1st defendant falls within the description of ‘any person in Nigeria’ as provided in Sections 88 (1) (b) and 89 (1) (c) and (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and subject to the summon of the 3rd defendant.
“A declaration that Sections 88 and 89 of Constitution of the Federal Republic of Nigeria 1999 (as amended) empowers 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,” the suit sheet read.
But in a joint counter affidavit filed by Simon Enock on behalf of the 1st (president) and 2nd defendants (AGF) 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 at whatsoever level in curtailing 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 of curbing activities of bandits, hoodlums, kidnappers and terrorists which is evidenced by the none news of bombing and 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.”
He argued that the ex-president had not retracted his earlier promise to honour the invitation of the House of Representatives.
“The 1st defendant’s functions are usually delegated to the members of the Federal Executive Council and the chiefs of the security services.
“Before and after the invitation under reference, the chiefs of the security services on behalf of the 1st defendant have on several occasions appeared before the 3rd defendant to make representations on the security issues of the country, i.e to answer questions on the protection lives and properties of Nigerians,” he said.
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 agreed that it can summon any person in the country in the course of its investigation under Sections 88 and 89 of the Constitution, including the President, the legislature 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 under 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 defendant and counter affidavit of the 3rd defendant, the plaintiff filed a Reply on Points of Law dated November 3rd, 2021and July 17th, 2024 respectively.
He 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 this 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, 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 capacity.
According to him, it does not extend to his official capacity.
Justice Olotu fixed November 5, for further mention of the suit.
