Civil Rights Groups Sues Jonathan, JTF, Others Over AI’s Allegation Of War Crimes

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Lawsuit A2J and 8 Others v. Fed Govt pdf (1)

Download the other copy here

MEDIA ADVISORY- A2J-One Voice Suit v. Fed Govt (1)

–

INTHE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

Suit No

IN THE MATTER OF AN APPLICATION BY THE INCORPORATED TRUSTEES

OF ACCESS TO JUSTICE AND EIGHT (8) OTHERS FOR JUDICIAL REVIEW FOR

THE GRANT OF AN ORDER OF MANDAMUS

BETWEEN:

1. THE INCORPORATED TRUSTEES

OF ACCESS TO JUSTICE

2. THE INCORPORATED TRUSTEES

OF ONE VOICE COALITION FOR

SUSTAINABLE DEVELOPMENT IN NIGERIA

3. WOMEN ADVOCATES RESEARCH AND

DOCUMENTATION CENTRE Ltd/Gte.

4. THE INCORPORATED TRUSTEES OF

HUMAN RIGHTS LAW SERVICES.

5. THE INCORPORATED TRUSTEES OF

SOCIAL ECONOMIC RIGHTS AND

ACCOUNTABILITY PLAINTIFFS/

PROJECT. A P P L I C ANTS

6. THE INCORPORATED TRUSTEES OF

NETWORK ON POLICE REFORM IN

NIGERIA FOUNDATION.

7. THE INCORPORATED TRUSTEES OF

NIGERIAN AUTOMOBILE TECHNICIANS

ASSOCIATION.

8. THE INCORPORATED TRUSTEES OF

CENTRE FOR CONSTITUTIONAL GOVERNANCE.

9. THE INCORPORATED TRUSTEES OF

CENTRE FOR CONSTITUTIONALISM AND

DEMILITARIZATION

AND

1. THE PRESIDENT OF

THE FEDERAL REPUBLIC OF NIGERIA

D E F ENDANTS/

RESPONDENTS

2. THE ATTORNEY GENERAL OF

THE FEDERATION

MOTION EX-PARTE FOR LEAVE TO APPLY FOR AN ORDER OF

MANDAMUS

Brought pursuant to Order 34 Rule 3(1) and (2) of the Federal High Court (Civil

Procedure) Rules 2009 and under the Inherent Jurisdiction of this Court.

TAKE NOTICE that this Honourable Court will be moved on the _______ day

of_________201_ at the hour of 9.00 o’clock in the forenoon, and so from day to day until

this application is heard, as Counsel may be heard on behalf of the Plaintiffs/Applicants

praying the Court for the following reliefs.

AN ORDER for leave to apply for an order of Mandamus compelling the

Defendants/Respondents to exercise the legal duty to conduct a thorough,

prompt, independent and impartial investigation into allegations or reports of

extrajudicial, summary or arbitrary executions made by an international human

rights body named Amnesty International whose report issued with an

accompanying video footage dated August 5th 2014, depicted horrendous acts

of extrajudicial killings and torture of suspected members of the Boko Haram

sect carried out by members of the Nigerian military and the Civilian Joint

Task Force (CJTF).

AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may

deem fit to make in the circumstances

DATED THE 13TH DAY OF NOVEMBER, 2014

_____________________________

CHUMA OTTEH Esq

PLAINTIFFS/APPLICANTS COUNSEL

Access to Justice

Plot 1K, 2nd Avenue NEPA Road

Kado Bimko, Gwarimpa Estate,

FCT, Abuja

Tel: +234-1-4546877, 08105155712

Tel/Fax: + 234-1-5871279

INTHE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

Suit No

IN THE MATTER OF AN APPLICATION BY THE INCORPORATED TRUSTEES

OF ACCESS TO JUSTICE AND EIGHT (8) OTHERS FOR JUDICIAL REVIEW FOR

THE GRANT OF AN ORDER OF MANDAMUS

BETWEEN:

1. THE INCORPORATED TRUSTEES

OF ACCESS TO JUSTICE

2. THE INCORPORATED TRUSTEES

OF ONE VOICE COALITION FOR

SUSTAINABLE DEVELOPMENT IN NIGERIA

3. WOMEN ADVOCATES RESEARCH AND

DOCUMENTATION CENTRE Ltd/Gte.

4. THE INCORPORATED TRUSTEES OF

HUMAN RIGHTS LAW SERVICES.

5. THE INCORPORATED TRUSTEES OF

SOCIAL ECONOMIC RIGHTS AND

ACCOUNTABILITY PLAINTIFFS/

PROJECT. A P P L I C ANTS

6. THE INCORPORATED TRUSTEES OF

NETWORK ON POLICE REFORM IN

NIGERIA FOUNDATION.

7. THE INCORPORATED TRUSTEES OF

NIGERIAN AUTOMOBILE TECHNICIANS

ASSOCIATION.

8. THE INCORPORATED TRUSTEES OF

CENTRE FOR CONSTITUTIONAL GOVERNANCE.

9. THE INCORPORATED TRUSTEES OF

CENTRE FOR CONSTITUTIONALISM AND

DEMILITARIZATION

AND

1. THE PRESIDENT OF

THE FEDERAL REPUBLIC OF NIGERIA

D E F E NDANTS/

RESPONDENTS

2. THE ATTORNEY GENERAL OF

THE FEDERATION

STATEMENT PURSUANT TO ORDER 34 RULE 3(2) a, FEDERAL HIGH COURT

(CIVIL PROCEDURE) RULES 2009

1. NAMES AND DESCRIPTON OF PLAINTIFFS/APPLICANTS

The Plaintiffs/Applicants include Access to Justice (AJ), One Voice Coalition for

Sustainable Development in Nigeria (OneVOICE), Women Advocates Research and

Documentation Centre (WARDC), Human Rights Law Services (HURILAWS), Social

Economic Rights and Accountability Project (SERAP), Network on Police Reform in

Nigeria Foundation (NOPRIN), Nigerian Automobile Technicians Association (NATA),

Centre for Constitutional Governance (CCG) and Centre for Constitutionalism and

Demilitarization (CENCOD). The Nine (9) Plaintiffs/Applicants are all duly

incorporated bodies registered under the Companies and Allied Matters Act 2004 who

have the mandate to address issues related to rule of law, human rights and justice in

Nigeria and have been active in defending the rule of law, democracy and good

governance.

2. RELIEF SOUGHT

An order for leave to apply for an order of Mandamus compelling the

Defendants/Respondents to exercise the legal duty to conduct a thorough, prompt,

independent and impartial investigation into allegations or reports of extrajudicial, summary

or arbitrary executions made by an international human rights body named Amnesty

International whose report issued with an accompanying video footage dated August 5th

2014, depicted horrendous acts of extrajudicial killings and torture of suspected members of

the Boko Haram sect carried out by members of the Nigerian military and the Civilian Joint

Task Force (CJTF).

3. GROUNDS UPON WHICH THE RELIEF IS SOUGHT
4. There is a legal duty upon the 1st and 2nd Respondents to, conduct a thorough,

prompt, independent and impartial investigation into allegations or reports of

extrajudicial, summary or arbitrary executions in order to protect the right to life, fair

hearing, and dignity of human persons that are protected under Sections 33, 34 and

36 respectively of the 1999 Constitution of the Federal Republic of Nigeria, Articles

4, 7 and 5 respectively of the African Charter on Human and Peoples’ Rights

(Ratification and Enforcement) Act, Cap A9 2004 and under Articles 6,14 and 7

respectively of the International Convention on Civil and Political Rights (ICCPR).

1. The duty of the 1st and 2nd Respondent to investigate the allegations levied in the

report can also be deduced from Section 14(1) and (2) b and Section 33(1) of the

1999 Constitution of the Federal Republic of Nigeria.

1. The alleged extrajudicial killing and torture of these suspected Boko Haram

members constitutes a breach of their fundamental right to life, fair hearing and

dignity under sections 33, 34 and 36 respectively of the Constitution of the Federal

Republic of Nigeria 1999, articles 4, 7 and 5 respectively of the African Charter on

Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9 2004 and

under Articles 6,14 and 7 respectively of the International Convention on Civil and

Political Rights (ICCPR).

1. By the Respondents failure/refusal to carry out a thorough and independent

investigation into the Amnesty International report, the Nigerian government is in

violation of Chapter 1 Article 1 of the African Charter on Human and Peoples’

Rights (Ratification and Enforcement) Act which imposes a duty on the government

to take all steps necessary for the protection of the rights that are contained therein.

1. Part II Article 2 (3) of the International Convention on Civil and Political Rights

(ICCPR) places a duty upon state parties to the convention to protect and address any

breach of the rights protected by the convention.

1. If the facts as alleged in Amnesty International report and the accompanying video

footage are accurate, they constitute war crimes and crimes against humanity.

Nigeria is under an obligation to punish war crimes and those who perpetrate them in

situations of armed conflict. Article 3(1) of the Geneva Conventions Act, Laws of

the Federation of Nigeria 2004 (formerly Cap 162 Laws of the Federation of Nigeria

1990) confers a duty on the government to punish war crimes and those who

perpetrate them in situations of armed conflict.

1. The alleged extrajudicial killing and torture of these suspected Boko Haram

members is of grave concern to the Applicants as it relates to issues of adherence to

the rule of law, social justice and the protection of human rights that both Nigeria’s

local and ratified international legal instruments protect.

Dated the _____ day of _______________ 2014

CHUMAH OTTEH Esq

COUNSEL TO THE PLAINTIFFS/APPLICANTS

Access to Justice

Plot 1K, 2nd Avenue

Kado Bimko, Gwarimpa Estate,

FCT, Abuja

Tel: +234-1-4546877, 08105155712

Tel/Fax: + 234-1-5871279

INTHE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

Suit No

IN THE MATTER OF AN APPLICATION BY THE INCORPORATED TRUSTEES

OF ACCESS TO JUSTICE AND EIGHT (8) OTHERS FOR JUDICIAL REVIEW FOR

THE GRANT OF AN ORDER OF MANDAMUS

BETWEEN:

BETWEEN:

1. THE INCORPORATED TRUSTEES

OF ACCESS TO JUSTICE

2. THE INCORPORATED TRUSTEES

OF ONE VOICE COALITION FOR

SUSTAINABLE DEVELOPMENT IN NIGERIA

3. WOMEN ADVOCATES RESEARCH AND

DOCUMENTATION CENTRE Ltd/Gte.

4. THE INCORPORATED TRUSTEES OF

HUMAN RIGHTS LAW SERVICES.

5. THE INCORPORATED TRUSTEES OF

SOCIAL ECONOMIC RIGHTS AND

ACCOUNTABILITY PLAINTIFFS/

PROJECT. A P P L I C ANTS

6. THE INCORPORATED TRUSTEES OF

NETWORK ON POLICE REFORM IN

NIGERIA FOUNDATION.

7. THE INCORPORATED TRUSTEES OF

NIGERIAN AUTOMOBILE TECHNICIANS

ASSOCIATION.

8. THE INCORPORATED TRUSTEES OF

CENTRE FOR CONSTITUTIONAL GOVERNANCE.

9. THE INCORPORATED TRUSTEES OF

CENTRE FOR CONSTITUTIONALISM AND

DEMILITARIZATION

AND

1. THE PRESIDENT OF

THE FEDERAL REPUBLIC OF NIGERIA

D E F ENDANTS/

RESPONDENTS

2. THE ATTORNEY GENERAL OF

THE FEDERATION

VERIFYING AFFIDAVIT IN SUPPORT OF PLAINTIFFS/APPLICANTS MOTION

EXPARTE FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS

DATED_______DAY OF _______________2014

I, Imuekemhe Emike Jessica, Female, Adult, Christian, Legal Practitioner of Plot 1K,

2nd Avenue, Kado Bimko, Gwarimpa Estate, FCT, Abuja, do hereby solemnly state and

declare as follows:

1. That I am a legal practitioner engaged in the practice of my profession with the

Justice Advocacy Group known as Access to Justice, who represents the

Plaintiffs/Applicants in this suit.

2. That I have the consent of the Applicants to depose to the facts contained herein.
3. That the facts to which I herein depose have come to my knowledge in the course of

the discharge of my professional responsibilities after a review of the official case

file in this proceedings and from information supplied to me by Mr Joseph Otteh

Esq, who is authorised to handle the conduct of this proceedings, at about the hours

of 12:21pm on Tuesday, 21st October, 2014 at our offices.

4. I am aware that on the 5th of August 2014, the international human rights

organisation Amnesty International (AI) published a report titled “Nigeria’s

military implicated in war crimes” hereafter referred to as “the report” which

alleged that extrajudicial killings were carried out by members of the Nigerian

Military and the Civilian Joint Task Force (CJTF) in the course of their campaign

and fight against the Boko Haram sect.

5. The full Amnesty International report and footage is available at

http://www.amnesty.org/en/news/nigeria-gruesome-footage-implicates-militarywar-

crimes-2014-08-05 and is herein attached and marked as Exhibit ‘A’.

6. The footage referred to above includes horrific images of detainees ostensibly in the

custody of the Nigerian military having their throats slit one after the other and their

bodies dumped in mass graves by men who appear to be members of the Nigerian

military and the Civilian Joint Task Force (JTF).

7. The video footage also shows 16 young men and boys seated in a line. One by one,

they are called forward and told to lie down in front of a pit that served as a grave.

Five of them are killed in this way. Amnesty International reports that the fate of

the remaining detainees is not shown on video, but that eyewitness accounts

confirmed that nine of them had their throats cut while the others were shot to

death.

8. Many Nigerians, including the civil rights and rule-of-law groups who are plaintiffs

in this action were extremely dismayed and horrified by these allegations. There

were also strong international condemnations of the alleged acts of summary,

arbitrary and extra-judicial killings and calls for a thorough investigation of the

allegations.

9. That given the respectable status of Amnesty International, the Applicants are

certain that the allegations levied in the report could likely be true, and therefore

deserve thorough investigation.

1. I am aware that as a result of the grievous allegations levied in the report and the

accompanying video footage, the Plaintiffs/Applicants, wrote a letter dated 18th

August 2014 to the 1st Respondent through the 2nd Respondent, requesting that an

impartial, independent and thorough investigation be carried out on the allegations

levied in the Amnesty International report.

1. The letter dated 18th August 2014 is attached and marked as Exhibit ‘B’.
2. That on the 27th of August 2014, the 1st Applicant received a letter from one O.T

Olatigbe, writing on behalf of the 2nd Respondent acknowledging the receipt of the

Applicants’ letter to the President of the Federal Republic of Nigeria, through the

office of the Hon. Attorney General dated 18th August 2014. He stated in the letter

that the Federal Government, headed by the 1st Respondent had set up a “facts

finding committee” to investigate the Amnesty International report.

3. The letter dated 27th August 2014 is attached and marked as Exhibit ‘C’.
4. That upon receipt of this letter dated 27th August 2014, the Applicants sent a

second letter to the 2nd Respondent explaining that as critical stakeholders, they

were interested in the proceedings of this facts-finding committee, and wanted to

explore ways in which they could make relevant representations to this Committee

in order to contribute to the goal of ending extrajudicial executions and

strengthening accountability for human rights abuses in warfare situations.

5. The letter dated 2nd September is attached and marked as Exhibit ‘D’
6. That till the date of bringing this application, the 2nd Respondent did not reply the

Applicants’ letter. Thus raising the question of the credibility of the claim that a

facts-finding committee was set up by the government to investigate the Amnesty

International report as claimed by the 2nd Respondent.

7. Furthermore, up till this time, there is no known report or findings of the so-called

fact-finding Committee set up by the government.

8. That consequently, the Applicants are seeking an order for leave to apply for an

order of Mandamus compelling the Defendants/Respondents to exercise the legal

duty to conduct a thorough, prompt, independent and impartial investigation into

allegations or reports of extrajudicial, summary or arbitrary executions made by an

international human rights body named Amnesty International whose report issued

with an accompanying video footage dated August 5th 2014, depicted horrendous

acts of extrajudicial killings and torture of suspected members of the Boko Haram

sect carried out by members of the Nigerian military and the Civilian Joint Task

Force (CJTF).

9. That I know it is in the interest of justice for leave to be granted in favour of the

Applicants.

1. I depose to this affidavit in good faith, conscientiously believing the contents to be

true and in accordance with the Federal high Court (Civil Procedure) Rules, 2004

and the Oaths Act, Cap. O1 Laws of the Federation of Nigeria, 2004.

_________________

DEPONENT

SWORN to at the Registry of the Federal High Court, Abuja

This ______________ day of________________, 2014

Before Me

Commissioner for Oaths

INTHE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

Suit No

IN THE MATTER OF AN APPLICATION BY THE INCORPORATED TRUSTEES

OF ACCESS TO JUSTICE AND EIGHT (8) OTHERS FOR JUDICIAL REVIEW FOR

THE GRANT OF AN ORDER OF MANDAMUS

BETWEEN:

1. THE INCORPORATED TRUSTEES

OF ACCESS TO JUSTICE

2. THE INCORPORATED TRUSTEES

OF ONE VOICE COALITION FOR

SUSTAINABLE DEVELOPMENT IN NIGERIA

3. WOMEN ADVOCATES RESEARCH AND

DOCUMENTATION CENTRE Ltd/GTE.

4. THE INCORPORATED TRUSTEES OF

HUMAN RIGHTS LAW SERVICES.

5. THE INCORPORATED TRUSTEES OF

SOCIAL ECONOMIC RIGHTS AND

ACCOUNTABILITY PLAINTIFFS/

PROJECT. A P P L I C ANTS

6. THE INCORPORATED TRUSTEES OF

NETWORK ON POLICE REFORM IN

NIGERIA FOUNDATION.

7. THE INCORPORATED TRUSTEES OF

NIGERIAN AUTOMOBILE TECHNICIANS

ASSOCIATION.

8. THE INCORPORATED TRUSTEES OF

CENTRE FOR CONSTITUTIONAL GOVERNANCE.

9. THE INCORPORATED TRUSTEES OF

CENTRE FOR CONSTITUTIONALISM AND

DEMILITARIZATION

AND

1. THE PRESIDENT OF

THE FEDERAL REPUBLIC OF NIGERIA

D E F E N DANTS/

RESPONDENTS

2. THE ATTORNEY GENERAL OF

THE FEDERATION

WRITTEN ADDRESS IN SUPPORT OF PLAINTIFFS/APPLICANTS

MOTION EXPARTE FOR LEAVE TO APPLY FOR AN ORDER OF

MANDAMUS

1. INTRODUCTION

1.1 This written address is delivered in support of the Applicants Motion Exparte

dated the 21st day of October, 2014 brought pursuant to Order 34 Rule 3(1) and (2) of the

Federal High Court (Civil Procedure) Rules 2009 and under the Inherent Jurisdiction of

this Court, wherein the Applicants prayed this Honourable Court for the following reliefs

namely:

AN ORDER for leave to apply for an order of Mandamus compelling the

Defendants/Respondents to exercise the legal duty to conduct a thorough,

prompt, independent and impartial investigation into allegations or reports of

extrajudicial, summary or arbitrary executions made by an international

human rights body named Amnesty International whose report issued with an

accompanying video footage dated August 5th 2014, depicted horrendous acts

of extrajudicial killings and torture of suspected members of the Boko Haram

sect carried out by members of the Nigerian military and the Civilian Joint

Task Force (CJTF).

AND FOR SUCH FURTHER OR OTHER ORDERS as this

Honourable Court may deem fit to make in the circumstances.

1.2 The Motion Ex-parte is supported by an Eighteen (18) paragraph Verifying

Affidavit deposed to by Imuekemhe Emike Jessica, Counsel with the organisation

Access to Justice and two (2) Exhibits. The Plaintiffs/Applicants shall rely on the

paragraphs of the said Verifying Affidavit as well as the attached Exhibits in support of

the Motion Ex-parte in arguing the present application.

2. FACTS RELEVANT TO THE RELIEFS SOUGHT

2.1 On the 5th of August 2014, the international human rights organization

Amnesty International (AI) published a report titled “Nigeria’s military implicated in war

crimes” which alleged that extrajudicial killings were carried out by members of the

Nigerian military and the Civilian Joint Task Force (CJTF) in the course of their

campaign and fight against the Boko Haram sect.

2.2 The full Amnesty International report and footage is available at

http://www.amnesty.org/en/news/nigeria-gruesome-footage-implicates-military-warcrimes-

2014-08-05.

2.3 The footage referred to above includes horrific images of detainees ostensibly in

the custody of the Nigerian military having their throats slit one after the other and their

bodies dumped in mass graves by men who appear to be members of the Nigerian

military and the Civilian Joint Task Force (JTF).

2.4 The video footage also shows 16 young men and boys seated in a line. One by

one, they are called forward and told to lie down in front of a pit that served as a grave.

Five of them are killed in this way. Amnesty International reports that the fate of the

remaining detainees is not shown on video, but that eyewitness accounts confirmed that

nine of them had their throats cut while the others were shot to death.

2.5 Many Nigerians, including the civil rights and rule-of-law groups who are

plaintiffs in this action were extremely dismayed and horrified by these allegations.

There were also strong international condemnations of the alleged acts of summary,

arbitrary and extra-judicial killings and calls for a thorough investigation of the

allegations.

2.6 Given the respectable status of Amnesty International, the Applicants are certain

that the allegations levied in the report could likely be true, and therefore deserve

thorough investigation.

2.7 As a result of the grievous allegations levied in the report and the accompanying

video footage, the Plaintiffs/Applicants, wrote a letter dated 18th August 2014 to the 1st

Respondent through the 2nd Respondent, requesting that an impartial, independent and

thorough investigation be carried out on the allegations levied in the Amnesty

International report.

2.8 On the 27th of August 2014, the Plaintiffs/Applicants received a letter from one

O.T Olatigbe, writing on behalf of the 2nd Respondent acknowledging the receipt of the

Applicants’ letter to the President of the Federal Republic of Nigeria, through the office

of the Hon. Attorney General dated 18th August 2014. He stated in the letter that the

Federal Government, headed by the 1st Respondent had set up a “facts finding

committee” to investigate the Amnesty International report.

2.9 Upon receipt of this letter dated 27th August 2014, the Applicants sent a second

letter to the 2nd Respondent explaining that as critical stakeholders, they were interested

in the proceedings of this facts-finding committee, and wanted to explore ways in which

they could make relevant representations to this Committee in order to contribute to the

goal of ending extrajudicial executions and strengthening accountability for human rights

abuses in warfare situations.

2.10 Till the date of bringing this application, the 2nd Respondent did not reply the

Applicants’ letter. Thus raising the question of the credibility of the claim that a factsfinding

committee was set up by the government to investigate the Amnesty International

report as claimed by the 2nd Respondent.

2.11 Furthermore, up till this time, there is no known report or findings of the socalled

fact-finding Committee set up by the government.

3. ISSUES FOR DETERMINATION

3.1 The Applicants respectfully submit that the sole issue arising for determination

of this Honourable Court in respect of the instant application is as follows:

Whether having regard to the Verifying Affidavit evidence before this

Honourable Court including the Statement, this Court ought to grant

leave to the Applicant to apply for an order of mandamus.

4. ARGUMENT

4.1 This application for leave is brought in compliance with rules of court as well as

established case law that prescribe the practice and procedure for seeking an order of

mandamus. Order 34(1) and (2) of the Federal High Court (Civil Procedure) Rules

2009 states as follows:

3. (1) No application for judicial review shall be made unless the leave

of the Court has been obtained in accordance with this rule. (2) An

application for leave shall be made ex parte to the judge and shall be

supported by: (a) a statement setting out the name and description of the

applicant, the reliefs sought and the grounds on which they are sought;

(b) an affidavit verifying the facts relied on; and (c) a written address in

support of application for leave.

4.2 The Supreme Court in FAWEHINMI v. AKILU (1987) NWLR (Pt. 67) 797, Pp.

46-48, paras (F-B) held as follows:

“The 1st stage is to apply ex parte for leave to apply for the order. The

Rules of Court and the Law prescribe this. Thus, it is first necessary to

obtain leave to apply for the order of mandamus”.

See also DANMUSA v. INUWA (2007) 17 NWLR (Pt. 1063) 391

C.A., OHAKIM v. AGBASO (2010) 19 NWLR (Pt. 1226) 172 S.C

4.3 In canvassing arguments on this issue, we contend that the facts deposed to in

the verifying affidavit in support of the present application are sufficiently cogent to

sustain a grant of leave to apply for an order of mandamus. The Verifying Affidavit

and accompanying Statement discloses the facts upon which this application is made.

In DANMUSA v. INUWA (2007) 17 NWLR (Pt. 1063) 391 C.A, Pp. 411-412,

paras (H-F) the Court of Appeal in considering the factors to be taken into

consideration where an application for leave to apply for judicial review is made, held

that:

“What a trial court needs consider in application for leave… are the

statement setting out the name and description of the applicant, the relief

sought; and the affidavit evidence filed to verify the facts relied on by

the applicant…the application is granted or refused mainly on the

process filed with the application. And leave to apply for judicial review

is almost always granted by the court automatically once the court is

satisfied with the process filed.”

4.4 The superior courts of law are in agreement on the purpose of seeking the leave

of court before an application for an order of mandamus can be made. It is not the

duty of the court at the stage of seeking for leave to determine the substantive

application for an order of mandamus. See DANMUSA v. INUWA (2007) 17 NWLR

(Pt. 1063) 391 C.A Pp. 412 paras G., WEMABOD ESTATE LTD v. JOYLAND

LTD (2001) 18 NWLR (Pt. 744) 22 C.A

4.5 The factors which the court will consider in granting or refusing an application

for leave to apply for an order of mandamus can be deduced from the purpose of the

requirement for leave. In FAWEHINMI v. AKILU (1987) NWLR (Pt. 67) 797 Pp.

46-48, paras F-B, Obaseki, J.S.C. in delivering the leading judgment stated that the

purpose of seeking leave is to satisfy:

“…the requirement of the Rules of Court. It is also to ascertain the

locus standi of the applicant. Above all, it is to prevent the time of the

court from being wasted by busybodies with misguided trivial

complaints of administrative error…”

See also AMAH V. NWAKWO 2007 12 (NWLR) 1049 (552)

C.A., ADESANYA v. PRESIDENT OF NIGERIA (1981) 5 SC 112,

UZOHO V. N.C.P (2007) 10 NWLR (Pt. 1042) 320 C.A.

Locus Standi

4.6 We respectfully state that we have locus to bring this application before the

court. The Applicants are duly incorporated bodies registered under the Companies

and Allied Matters Act 2004 who have the mandate to address issues related to rule of

law, human rights and justice in Nigeria and have been active in defending the rule of

law, democracy and good governance. Similarly, Section 24 (b) and (d) of the 1999

Constitution of the Federal Republic of Nigeria recognizes the right of citizens to

take steps towards advancing our community. Section 24 (d) and (e) states as follows:

It shall be the duty of every citizen to –

(d) make positive and useful contribution to the advancement,

progress and well-being of the community where he resides.

(e) render assistance to appropriate and lawful agencies in the

maintenance of law and order;

4.7 The right guaranteed under Section 24 of the 1999 constitution was recognised

and upheld in DODODO v. E.F.C.C. (2013) I NWLR (Pt. 1336) 46, In Pp. 524,

paras. D-H. Eko J.C.A noted that:

“ The citizen, Alhaji Sani Dododo… has some duty under section 24 of

the constitution 1999 to abide by the constitution and respect its ideal.

He also has a duty by virtue of section 24(e) of this same constitution

to render assistance to appropriate and lawful agencies in the

maintenance of law and order. It is in the spirit of section 24 of the

constitution read together with section 15(5) of the same constitution

that enjoins the states agencies ‘to abolish all corrupt practices and

abuse of power’ that the appellant made his complaint of corrupt

practices against the 4th respondent and the 1st and 2nd respondents who

are no doubt lawful agencies of the federal government charged with

police powers to investigate allegations of corrupt practices…”

4.8 Even though the Applicants are not personally harmed by the incidents shown

in the Amnesty International report, we contend that we have a right, indeed an

obligation as well, given the mandate of our respective Constitutions to safeguard

fundamental rights guaranteed by the 1999 Constitution of the Federal Republic

of Nigeria and the African Charter on Human and Peoples’ Rights (Ratification

and Enforcement) Act, Cap A9 2004 and ensure that they are respected and

upheld by the government. If the Applicants turn a blind eye to grave and

massive violations of human rights and refuse or neglect to take action to defend,

safeguard, achieve or fulfil them or refuse/neglect to take action to remedy,

redress or assuage them when violated, then the Applicants would not be

fulfilling the purpose for which the Federal Republic of Nigeria has incorporated

them, and for which they have been conferred a special incorporation status with

peculiar rights and duties; therefore, the reason for and basis of, their

incorporation having failed or been defeated, the government may, following this

failure, request their winding up.

4.9 Nigerian courts, as well as courts in Commonwealth countries have taken a

more liberal view of, and approach to locus standi. In SHELL PETROLEUM

DEVELOPMENT v. NWAWKA (2001) 10 NWLR (PT 720) 64 C.A, @ Pp 83

Paras A-D Justice Pats-Acholonu J.C.A opined that:

“…in our society we are each our brothers keeper and we cannot hide

under the Hydra headed cocoon of locus standi to demolish a case

which discloses a justiciable cause of action.…

He went on to state @ Pp. 84 paras (H-A) that:

time has come for the appellate court to take a bold view of the law in

locus standi and strive not to shut out a litigant from agitating for a

special interest or right… we are in an under developed society and we

want to catch up with the rest of the international community. I fail to

see how we can do this if we leave certain alleged glaring irregularities

and illegalities… to be committed. I believe that it is the right of any

citizen to see that law is enforced where there is an infraction of that

right or a threat of its being violated in matters affecting the public law

and in some cases of private law…”

See also FAWEHINMI v. PRESIDENT, F.R.N. (2007) 14 NWLR

(Pt.1054) 275 C.A, FAWEHINMI v. AKILU (1987) 4 NWLR (Pt.67)

page 797, UKEGBU v. N.B.C (2007) 14 NWLR (Pt. 1055) 551 C.A

4.10 In WILLIAMS v. DAWODU (1988) 4 NWLR (Pt. 87) Pp. 189 at 218, Justice

Akpata, JCA (of blessed memory), stated that:

“… [T]he Courts have become increasingly willing to extend the

ambit of locus standi for public good. The Courts have broken new

grounds. The significance of this judicial revolution is that whereas in

the past the court showed little or no reluctance in any given case in

construing the import of “sufficient interest” against the individual and

tended to be more executive than the Executive, now the term

“sufficient interest” is construed more favourably in order to give an

applicant a hearing.”

4.11 It is submitted that the Applicant has sufficient interest in the subject matter to

establish its locus standi before the court as it relates to the protection of the rights of

Nigerian citizens and the maintenance of the rule of law in Nigeria, which is a public

and constitutional right. In DODODO v. E.F.C.C (2013) I NWLR (Pt. 1336) 46, In

Pp. 520 (paras D-F) and Pp. 522, (paras C-E), it was held as follows:

“…When the issue is on public right, it is sufficient that the petitioner

is a citizen and has an interest in rights and obligation if he shows that

right in his pleadings…any member of the public with sufficient interest

can seek judicial redress for enforcement of public duty”

See also NWANKWO v. ONONEZE-MADU (2009) 1 NWLR Pt.

(1123) 671 C.A

4.12 The courts have upheld the significance of suits of this nature where a suit is

brought to enforce a public right in cases where direct harm has not befallen the

Applicant. In FAWEHINMI v. AKILU supra, page 47 (paras. F-B) OBASEKI,

J.S.C. stated as follows:

“The peace of the society is the responsibility of all persons in the

country and as far as protection against crime is concerned, every

person in the society is each other’s keeper… If consanguinity or blood

relationship is allowed to be the only qualification for locus standi,

then crimes…will go unpunished, may became the order of the day

and destabilize society.”

4.13 We submit that the report and video footage published by the international

human rights organization Amnesty International on the 5th of August 2014, which

alleges that brutal and barbarous extrajudicial killings were carried out by members of

the Nigerian military and the Civilian Joint Task Force (CJTF) in the course of their

campaign and fight against the Boko Haram sect, raises serious issues of mass

murder, systematic and massive violations of human rights and war crimes and

requires a timely response of the Nigerian government by way of a thorough and

independent investigation. It is important that the rights of “every” member of the

community be protected whether in peacetime or in situations of armed conflict and

the duty to do so falls on the state.

Public Duty

4.14 It is submitted that there is a duty imposed on Nigeria, under the government

of 1st Respondent, under national and international law to investigate reports of

extrajudicial, summary and arbitrary executions in order to bring to justice, any

persons who may have perpetrated them. Both sections 33, 34 and 36 respectively of

the 1999 Constitution of the Federal Republic of Nigeria and articles 4, 7 and 5

respectively of the African Charter on Human and Peoples’ Rights (Ratification

and Enforcement) Act, Cap A9 2004 protect every citizens right to life, dignity and

fair hearing, all of which the report alleges that the Nigerian military and the Civilian

Joint Task Force (CJTF) have grievously and wantonly infringed upon.

4.15 We respectfully submit that Chapter 1 Article 1 of the African Charter on

Human and Peoples’ Rights (Ratification and Enforcement) Act imposes a duty

on the government to take all steps necessary for the protection of the rights that are

contained therein. Article 1 states that:

The Member States of the Organisation of African Unity parties to the

present Charter shall recognise the rights, duties and freedom

enshrined in this Charter and shall undertake to adopt legislative or

other measures to give effect to them.

4.16 Part II Article 2 (3) of the International Convention on Civil and Political

Rights (ICCPR) which Nigeria has ratified, articulates the duty upon state parties to

the convention to protect and address any breach of the rights protected by the

convention. It states that:

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein

recognized are violated shall have an effective remedy,

notwithstanding that the violation has been committed by persons

acting in an official capacity;

4.17 The duty of the 1st and 2nd Respondent to investigate the allegations levied in

the report can also be deduced from Section 14(1) and (2) b and Section 33(1) of the

1999 Constitution of the Federal Republic of Nigeria. Section 14(1) (2) b and

Section 33(1) states as follows:

4. (1) The Federal Republic of Nigeria shall be a State based on the

principles of democracy and social justice.

(2) It is hereby, accordingly, declared that: (b) the security and

welfare of the people shall be the primary purpose of government

3. (1) Every person has a right to life, and no one shall 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.

4.18 We respectfully submit that Section 33(1), which guarantees the fundamental

right to life to everyone imputes a corresponding duty upon the state to take all steps

to ensure that this right is indeed “guaranteed” and not infringed upon in any way

except on grounds explicated under Section 33(2). This submission is consistent with

established jurisprudence in many jurisdictions as well as regional and international

human rights bodies.

4.19 In the case of SERAC and Anor V FEDERAL REPUBLIC OF NIGERIA,

Cases on Human Rights, Vol. 2, 2002 The African Commission on Human and

Peoples’ Rights held that:

“Governments have a duty to protect their citizens, not only through

appropriate legislation and effective enforcement but also by protecting

them from damaging acts that may be perpetuated by private parties…

This duty calls for positive action on the part of governments in

fulfilling their obligations under human rights instruments.

4.20 Other international human rights tribunals such as the European Court of

Human rights, the Inter-American Court of Human Rights and the Economic

Community of West African States Community Court of Justice have also upheld the

duty on state governments to investigate and address complaints of impunity within

their states in line with their local legislations and international treaty obligations. In

VELÀSQUEZ RODRIGUEZ v. HONDURAS, Inter-Am. Ct. H.R. (Ser. C)

(IACrtHR) No 4 (1988) paras 176, the Inter-American Court of Human Rights in

upholding this duty under the American Convention on Human Rights (ACHR) held

that:

“…The State is obligated to investigate every situation involving a

violation of the rights protected by the Convention. If the State

apparatus acts in such a way that the violation goes unpunished… the

State has failed to comply with its duty to ensure the free and full

exercise of those rights to the persons within its jurisdiction. The same

is true when the State allows private persons or groups to act freely and

with impunity to the detriment of the rights recognized by the

Convention.

See also X and Y v. NETHERLANDS 91 ECHR (1985) (Ser. A) 32,

LOAYZA-TAMAYO v. PERU (IACtrHR) Series C No 33 1997,

ANGUELOVA v. BULGARIA (38361/97) (2002) 1 Pol LR 173.

4.21 In FINUCANE V. THE UNITED KINGDOM (Application no. 29178/95)

Judgment, Strasbourg, 1 July 2003, @ paras 67, the European Court of Human

rights found that the obligation to protect the right to life, includes, when an

individual is killed by the use of force, the duty to ensure an effective investigation

culminating in appropriate prosecutions and punishment. The court held that:

The obligation to protect the right to life under Article 2 of the

Convention, read in conjunction with the State’s general duty under

Article 1 of the Convention to “secure to everyone within [its]

jurisdiction the rights and freedoms defined in [the] Convention”,

requires by implication that there should be some form of effective

official investigation when individuals have been killed as a result of

the use of force… The essential purpose of such investigation is to

secure the effective implementation of the domestic laws which protect

the right to life and, in those cases involving State agents or bodies, to

ensure their accountability for deaths occurring under their

responsibility.

4.22 Similarly, in a recent decision of The Economic Community of West African

States (ECOWAS) Community Court of Justice, the court held in DEYDA HYDARA

& ANOR v. REPUBLIC OF THE GAMBIA (2014) (UNREPORTED) as follows:

“the right to life imposes an obligation on states to investigate all acts

of crime and bring perpetrators to book. A state will be neglecting its

obligation under international law and treaty if it does not carry out

effective investigations into crimes committed on its territory. In the

situation where attacks by state operatives…are not investigated, let

alone to prosecute the suspects, the state will be in breach of its

obligation under…the ACHPR”.

See also AMNESTY INTERNATIONAL AND OTHERS v. SUDAN

(2000) AHRLR 296 (ACHPR), COMMISSION NATIONALE DES

DROITS DE L’HOMME ET DES LIBERTES V CHAD (2000)

AHRLR 66 (ACHPR) Para 22.

4.23 We respectfully submit that if the facts as alleged in Amnesty International

report and the accompanying video footage are accurate, they constitute war crimes

and crimes against humanity. Nigeria is under an obligation to punish war crimes and

those who perpetrate them in situations of armed conflict. Article 3(1) of the Geneva

Conventions Act, Laws of the Federation of Nigeria 2004 (formerly Cap 162

Laws of the Federation of Nigeria 1990) confers this duty on the government.

Article 3(1) states as follows:

(1) If, whether in or outside the Federal Republic of Nigeria, any

person, whatever his nationality, commits, or aids, abets or procures

any other person to commit any such grave breach of any of the

Conventions as is referred to in the articles of the Conventions set out

in the First Schedule of this Act, that is to say-

(a) Article 50 of the First Geneva Convention, 1949;

(b) Article 51 of the Second Geneva Convention, 1949;

(c) Article 130 of the Third Geneva Convention, 1949;

(d) Article 147 of the Fourth Geneva Convention, 1949,

[First Schedule.]

He shall on conviction thereof- (i) in the case of such a grave breach as

aforesaid involving the willful killing of a person protected by the

Convention in question, be sentenced to death.

4.24 In addition to the above statutes and case law, support for the duty upon states

to investigate allegations of extra-judicial killings is evidenced by the fact that the

United Nations has developed extensive detailed standards for the investigation of

extrajudicial killing, including the UN Principles on the Effective Prevention and

Investigation of Extra-legal, Arbitrary and Summary Executions (the “UN

Investigation Principles”) and the Model Protocol for a Legal Investigation of

Extra-Legal, Arbitrary and Summary Executions (the “Minnesota Protocol”).

4.25 The applicant submits that by virtue of the position and power held by the 1st

and 2nd respondent and the functions that their office imposes, it is their duty and

responsibility to ensure that the serious allegations of grave and grievous breaches of

the fundamental rights of citizens, as well as the impunity with which these violations

are alleged also to occur, as made by Amnesty International are investigated. In

DODODO v. E.F.C.C. (supra) Pp.525, paras A-C, the court held that:

“By virtue of section 318 of the 1999 Constitution, function includes

power and duty… the right of the citizen to make complaints to the 1st

and 2nd respondent is conterminous with the corresponding duty of the

1st and 2nd respondents to receive the complaints, investigate them and

act on them. They cannot shut him out by mere or sheer inaction.., he

can seek review of the administrative action”

4.26 From the facts deposed to in the Verifying Affidavit and Statement, it is clear

that steps have been taken by the Applicant through the only means available to get

the 1st and 2nd Respondents to fulfil their duty to investigate these allegations, all to no

avail. The correspondence written by the Applicants to the 1st and 2nd Respondents

requesting that a committee be set-up to investigate the allegations levied in the

Amnesty report discharges the Applicants duty to first lay the significant request for

action before the public body or authority. It is for this reason that the applicant is

seeking recourse to an order of mandamus. In FAWENHINMI v. I.G.P (2002)

7NWLR (Pt767) SC 606 page 674 para. D, the Supreme Court describing the

function of a mandamus order, stated as follows:

“Mandamus is a high prerogative writ which lies to secure the

performance of a public duty…it gives command that a duty or function

of a public nature which normally, though not necessarily is imposed by

statute but is neglected or refused to be done after due demand, be done.

If there is a discretion to perform the duty, the court has the power to

examine whether the discretion to refuse to act has been properly

exercised”.

See also ATTA v. C.O.P. [2003] 17 NWLR, (Pt.849) 250, Pp. 25-26,

R v. CANTERBURY (ARCHBISHOP)(18 12) 15 East 117, 136.

OHAKIM v. AGBASO (2010) 19 NWLR (Pt. 1226) 172 S.C

4.27 We contend that that the failure of the Respondents to investigate the

allegations levied in the Amnesty International report constitutes a grave violation of

the duty placed on the Nigerian government to protect, defend, safeguard and fulfil its

national and international obligations to protect the right to life of its citizens and

symbolizes its tolerance for acts of impunity and war crimes committed by its agents

and that it is in the interest of justice that the court grants this application to protect

fundamental rights of Nigerians, and reduce the scope of the incidence of impunity

in Nigeria.

5. CONCLUSION

5.1 The Applicants rely on the arguments set out in the preceding paragraphs of this

written submission and respectfully submit and urge this Honourable Court to grant

this application. Further, we have demonstrated, based on established principles of

law, binding judicial precedents and the Rules of this Honourable Court, that the

Plaintiffs/Applicants have satisfied the conditions for the grant of leave to apply for

an order of mandamus.

5.2 We therefore humbly urge Your Lordship to grant the application as prayed.

DATED THE 13TH DAY OF NOVEMBER, 2014

_____________________________

CHUMA OTTEH Esq

PLAINTIFFSAPPLICANTS COUNSEL

Plot 1K, 2nd Avenue

Kado Bimko, Gwarimpa Estate,

FCT, Abuja

Phone: 08105155712