Okechukwu Benson V. Commissioner Of Police & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

This appellant’s application “for redress for the infringement of fundamental rights” brought against the Commissioner of Police Rivers State, and the Attorney-General, Rivers State was, on 25th August, 2004, was refused by the Rivers State High court (coram: B.E. Ugbari, J).This appeal is against that decision.

The appellant and one other person were arraigned before the Magistrate of Rivers State on two allegations of armed robbery punishable under section 1 (2) (a) of the Robbery and Firearms (special Provisions) Act 1990. Both offences are punishable with death. The magistrate court, having no jurisdiction to try the two accused persons for the capital offences, ordered their remand in prison custody on 30th October, 2003. They remained in that prison custody when the application for enforcement of the appellant’s fundamental rights to personal liberty, fair hearing and freedom of movement respectively under Sections 35, 36 and 41 of the 1999 Constitution was heard on the said 25th August, 2004.

The undisputed facts of this case are as follows:-

i. The appellant was remanded in the Federal prison of the order of the Magistrate Court on allegation of armed robbery punishable with death

ii. The Magistrate Court, having no jurisdiction to try the appellant for the capital offences, took no pleas.

iii. The Magistrate court directed that the case file be sent to the office of the Director of Public Prosecutions for necessary action.

iv. No information had been preferred against the appellant of the appropriate court with jurisdiction to try the appellant for the offences alleged.

At the court below the submissions of the appellant’s counsel seem to be predicated on Section 35 (4) of the Constitution, 1999. He emphasised the point that the appellant had been on remand “for a continued period of about 8 to 9 months” without trial and that for that reason a prima facie case had been made warranting the respondents to be put on notice to defend the allegation of the violation of the appellant’s fundamental rights.

In his considered ruling on the appellant’s application the Learned trial judge stated inter alia that –

The appropriate procedure for the (appellant) to come to this Court is by way of application for bail, especially as the (appellant) appears to have been detained pursuant to Section 35 (1)(c)of the 1999 Constitution. That is, upon reasonable suspicion of his having committed a criminal offence.

Section 35 (1) (c), (4) and (7)(a) of the said constitution are quite germane to this application. Accordingly, they are hereinbelow reproduced. Viz:

35. (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –

(c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;

(4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –