Ndubisi Azubike: Triumph of the Human Spirit

In November 2003, Mr. Boniface Azubike Ebuoeme received Lagos State Government’s Cheque in the sum of N6million (then, approximately forty-three thousand US Dollars) in full satisfaction of the judgment debt his son, Ndubisi Azubike, was being owed by the Lagos State Government.  The receipt of the amount brought to an end almost four years of relentless effort to make the Lagos State Government pay an N8 million judgment debt, which became due in December 1999, as determined in a fundamental human rights enforcement law suit, Suit No. ID/621M/98 ( Ndubisi Azubike { Suing through his Next Friend, Mr. Boniface Azubike Ebuzoeme Vs. Military Administrator of Lagos State & 2 Others) .

On the 17th of December 1999, the High Court of Lagos State (Ikeja Judicial Division), per Hon. Justice Bayo Manuwa, awarded the sum of  N  8 million damages to Mr. Boniface Azubike, who was suing as the next of kin to his son, in a suit brought against the Lagos State Government.  At that time, the exchange rate of the naira to the US$ was eighty-nine naira, meaning that the US$ equivalent of the damages awarded Ndubisi Azubike then was about US$ 90,000.

Unfortunately, rather than promptly pay the judgment debt, the Lagos State Government did everything to make the judgment creditor abandon the judgment sum or in the alternative accept any amount it chose to give to the judgment creditor.  In the pursuit of this objective, the arguments put forward by the Lagos State Government were that the judgment sum was too high; that it had fiscal constraint, that the liability was inherited from the military era; that there were several judgment debt obligations left behind by the military and that there were no adequate funds to meet these obligations; that the Government had an option of Appeal, in which case the Tinubu Administration’s tenure would be over by the time the Appeal  finally would be decided, such that the cup of the judgment sum would have passed over the Tinubu Administration; et cetera, et cetera.  While “right pricing” the misfortune and agony of Ndubisi, Azubike, little attention was paid by the Administration to his health and academic needs which had become special.

The sad story of Master Ndubisi Jude Azubike all started on the 7th of October 1998. On that day, Ndubisi, as he is fondly called, then a nine (9) year old primary four pupil of Estate Primary School, Isolo, Lagos where he resided with his parents, was shot in the temple by the men of Operation Sweep – the precursor of the Rapid Response Squad (a crime cracking joint military and police special unit) established by the then Lagos State Military Administrator, Brig. General Buba Marwa.  The members of the Oodua People Congress (OPC) – the Yoruba ethno-nationalist militia group- had orgainsed a rally at Isolo Bus Stop Area in furtherance of their objectives.  Not too long after the rally started, the men of Operation Sweep characteristically arrived at the scene to forcibly disperse same.  They started shooting indiscriminately and at random, forcing people in the neighbourhood to run helter-skelter.  It was during the ensuring pandemonium that Ndubisi Azubike who, with his elder sister, Nkechi, was going for catechism at a nearby Catholic Church, was shot.  The invading bullet entered through Ndubisi’s right temple, shattered the right eyeball, pierced the nose bridge and smashed the left eyeball.  He became instantly blind.  After the rally was successfully broken, men of Operation Sweep withdrew from the scene. Ndubisi was later discovered, by his parents, at Isolo Medical Centre, where he was first taken by sympathizers.  From there, he was moved to General Hospital, Ikeja – Lagos before being finally admitted to Lagos University Teaching Hospital (LUTH), Idi – Araba Lagos, where a surgical operation to remove pellets from his cranium was performed.  Pieces of bone chips had to be removed from under the anterior lobe of his brain in the course of the surgery.

Immediately after the hospitalization of Ndubisi, his parents lodged a complaint at the Special Investigation and Intelligence Bureau of the Lagos State Command of the Nigeria Police Force, but the Police did nothing.  It was at that stage that the parents, through Late Father John Ofei, then of the Catholic Secretariat, Lagos, turned to the Committee for the Defence of Human Rights (CDHR) for Legal Aid.

Consequently, the CDHR filed an Application for the enforcement of the fundamental right of Ndubisi Azubike to life and the dignity of the human person respectively guaranteed by Section 30 and 31 of the defunct Constitution of the Federal Republic of Nigeria, 1979.  The Application was brought under the Fundamental Rights (Enforcement) Procedure Rules.  The sum of N10 million was claimed as special and general damages.

After a successful operation for the extraction of pellets from Ndubisi’s eyes, he was enrolled in Pacelli School for the Blind and Partially Sighted in Lagos to continue with his education. Meanwhile, the court action proceeded apace.  Since the Lagos State Government, through the then Military Administrator, Brigadier Buba Marwa, set up Operation Sweep, he was sued as a principal respondent in the action.  In accepting the submission of Counsel that Lagos State Government was responsible for the acts of its agent, who shot Ndubisi, Hon. Justice Bayo Manuwa, in his Judgment, stated thus:

The evidence before me is that one of the personnel/operatives of Operation Sweep shot and maimed the Applicant.  Operation Sweep was established by the then Military Administrator of Lagos State supposedly to combat the alarming rate of armed robbery in the State and it comprised police officers and military personnel under the direct command of the Military Administrator, the 1st Respondent.  They were therefore, in my view, agents of the Respondents and I so hold!

The office of the Attorney General of Lagos State was served all the court processes.  In all, there were over fifteen Court appearances between the commencement of the action in November 1998 and when judgment was delivered in December, 1999. A state counsel from the office of the Attorney – General of Lagos State appeared in Court during the proceedings only once and sought for an adjournment. He never came back until judgment was given.  Reason? The Ministry of Justice was said to have made spirited efforts to get information on the incident from the men of Operation Sweep to no avail.  Thus, the Ministry was hamstrung in defending the action.  On December 17, 1999, five months after the restoration of civil rule, Honourable Justice Bayo Manuwa, in a considered judgment, awarded the sum of N8million to Ndubisi Azubike. In the Judgment, after identifying the plight of Ndubisi Azubike as a case of oppressive, arbitrary or unconstitutional action by the servants of government – one of the three situations in which a court of justice will award exemplary damages, the learned Judge in an emotive manner concluded thus:

As Learned Counsel, Mr. Jiti Ogunye has submitted, and I cannot agree more, the Applicant was not a fugitive from justice, he was not an escaping felon, nether was he a member of the Oodua People’s Congress participating in the riot.  No, he was merely an innocent child on his way to church to worship his God.  What justification, legal or moral, could that perpetrator of the act have for shooting and blinding him? Only a rabid dog, in my view, running amok and attacking all and sundry deserves to be shot on sight.  Nothing could be more oppressive, arbitrary or unconstitutional by an agent of government.  It is a crime in my book, in the criminal code and in the Holy Book of God.

The Respondents’ by abandoning the Applicant to his fate, have shown absolutely no remorse, and perhaps it is a forlorn hope to wish that they would fish out the culprit and make him pay for his crime and atone for going against the tenets of God.  Someday, he will face his maker for a judgment much greater than mine.

Upon delivery of the Judgment, the Lagos State Government was duly informed and a request was made for the payment of the judgment sum.  The attitude of the Lagos State Ministry of Justice to the judgment, however, was to scale it down.  The Government did not appeal against the judgment, perhaps because it would be unwise to so do given the fact that the action was undefended.  Throughout year 2000, the Lagos State Government neglected to pay the judgment sum, using the excuse that there was no fund to pay.  To make matters worse for Ndubisi, certain post-surgery complications arose, and continue, even now, to threaten his existence.  The Claim for N10million damages had erroneously assumed, that Ndubisi would not require further medical attention.  Thus, the claim was substantially in respect of his special education and movement whilst in school. The Claim did not cover his further medical attention.  Following persistent intermittent swellings of the eye sockets after the initial surgery, however, the eye sockets had to be opened up to discharge pus.  Upon further medical examination, doctors reported that Ndubisi had to undergo a special intricate surgery abroad to disconnect the glands that used to supply tears to the shattered eyes.  The tears glands, according to doctors, were still effective; they supplied fluid to the cavities in the closed sockets, which in time became pus leading to swellings that necessitated periodic opening and evacuation.  This process, the doctors warned, was not sustainable as it could lead to damage to the brain area or malignancy of the sockets’ internal injuries.  This precarious nature of Ndubisi’s health was explained to the Lagos State Government to persuade it to quickly pay the judgment sum, to no avail.

After fifteen months of a tortuous wait, Ndubisi Azubike, in March 2001 filed, through Jiti Ogunye Chambers (acting for the Committee for the Defence of Human Rights), garnishee proceedings against the Bank Accounts of the Lagos State Government with Eko International Bank PLC to enforce the payment of the Judgment Sum.  The Court (Hon. Justice O. M. Falashe, to whom the case was assigned (following the removal of Hon. Justice Bayo Manuwa from the Bench) graciously granted a decree nisi on the 12th day of March 2001 against the garnishee (Eko Bank PLC). In effect the sum of N8million was temporarily attached from the account of Lagos State Government with Eko Bank PLC, pending the hearing and determination of the Motion on Notice.

The Court, however, could not immediately enforce the judgment as desired by Ndubisi Azubike, owing to the fact that from July 2001 to September 2002, the Court did not sit as a result of the indisposition on the part of the Learned Judge.

In the meantime, Mr. Ndubisi Azubike took his case to the court of public opinions. Following the address of a press conference by the father, Mr. Azubike Ebuzoeme at the CDHR National Secretariat, Ikeja, Lagos, a media outing which was used to make a passionate appeal to the Lagos State Government to pay the judgment sum without further delay, the mass media intervened decisively to urge a quick resolution of the case on the side of justice for Ndubisi Azubike.  

When the learned Judge resumed the hearing of the proceedings, the Lagos State Government indicated its desire to settle the case out of Court; a settlement, which the Court ruled should be vigorously pursued. After series of discussions with the officials of the Ministry of Justice, the sum of N6million was agreed to as the full and final settlement of the judgment sum.  Following the agreement, terms of settlement were filed and adopted by the Court and eventually the Lagos State Government issued a cheque in that sum to Mr. Boniface Azubike Ebuzoeme, the father of Ndubisi Azubike in satisfaction of the judgment.

  • Folasade Ogunye-Apanpa, LLB, LLM ( OAU, Ife), BL, a Solicitor and Advocate of the Supreme Court of Nigeria, and Solicitor of the Supreme Court of England and Wales, practices law in the United Kingdom, and in Nigeria, with Jiti Ogunye Chambers.  

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