Omonyahuy & Ors. v. Inspector General of Police & Ors. (2015) LPELR-25581(CA), per Augie, JCA (as she then was):

…In resolving this issue, which boils down to a question of whether the constitutional right to life of a dead man can be enforced by his dependents, we are faced with an uphill task and will be swimming in uncharted waters, since there are no authorities either from the Supreme Court or this Court on the subject, and so, to guide us on this journey through virgin territory, we must establish where we were, where we are, and where we need to go… 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 dependents…

Notes:

The facts of the case are that on 15/2/2012, the 4th Respondent police officer (in company of other policemen, i.e., 5th and 6th Respondents) mounted illegal roadblock/checkpoint (as is the custom of the Nigeria Police, notwithstanding all efforts to put an end to the bad practice) whereupon they stopped two men riding to work on a motorbike. The case of the Appellants was that the 4th Respondent shot the men due to their brave refusal to give them (4th-6th Respondents) money demanded at the illegal checkpoint. Being aggrieved and heart-broken by the unfortunate incident, the Appellants filed an action at the Lagos High Court against the Respondents under the Fundamental Rights (Enforcement Procedure) Rules 2009 (2009 FREP Rules) seeking the enforcement of the fundamental right to life of the deceased persons. The 1st-3rd Appellants are dependants of the two deceased men, while the 4th Appellant was the supervisor of the two deceased men at work. It was also the case of the Appellants that the 4th Appellant was illegally detained in connection with the death of the deceased persons and so sought an enforcement of his fundamental rights. Without going into the merits of the case, the trial Judge dismissed the action on the ground that the case did not qualify as a fundamental rights action and that same was founded under the criminal offence of murder. Dissatisfied, the Appellants appealed to the Court of Appeal. The issues to be determined were whether the matter was properly commenced under the 2009 FREP Rules and whether the fundamental right to life of the deceased persons can be enforced by their dependants.

The Court of Appeal took time to consider the issues given that, as stated by the appellate Court, there are no direct Supreme Court or Court of Appeal authorities on the points. Augie, JCA (as she then was), in delivering the Judgment of the Court of Appeal, reasoned and concluded that the action was properly commenced as a fundamental rights suit and that the constitutional right to life of the deceased men could be enforced by their dependants. In arriving at its sound decision, the Court of Appeal put into consideration the improvements brought by the 2009 FREP Rules which did away with the requirement for leave to apply for the enforcement of fundamental rights, the doctrine of locus standi and limitation of time, unlike what we had in the 1979 FREP Rules. The Court was also well guided by the preamble to the 2009 FREP Rules which significantly spelt out the overriding objectives of the Rules (such as public interest litigation); and some decisions (both local and foreign) amplifying on the said objectives. More so, the Court of Appeal applied the Mischief Rule of statutory interpretation which prescribes that the role of the courts in interpretation of statutes is to supress the mischief a statute is aimed at and advance the remedy. By this, the Court was mindful of the mischief the 2009 FREP Rules aims to cure as seen in the 1979 Rules.

The appeal was therefore allowed and the matter was thereafter remitted back to the lower Court to be determined on the merits by another Judge.

The Court of Appeal is highly commended as its decision in the case was in tune with modern day pronouncements and advancements in international human rights law.

Read the full Judgment.