Okechukwu Benson V. Commissioner Of Police & Anor (2016)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This appeal is against the judgment of the Court of Appeal, Port Harcourt Division delivered on 8/3/2013 wherein leave was granted to apply for the enforcement of his fundamental rights and the case remitted to the Chief Judge of Rivers State for assignment to another Judge of the High Court of Rivers State for determination.

Again aggrieved with the decision, the Appellant has come before the Supreme Court upon a Notice of Appeal filed on the 9/4/2013

FACTS:

The Appellant was charged on the 30/10/03 before a Chief Magistrate Court of Rivers State sitting in Port Harcourt.

The charge was on three counts of conspiracy and armed robbery. Pleas were not taken and Appellant was remanded in prison custody and the case file was directed to be sent to the Director of public prosecutions (DPP) of Rivers State. No information was filed against him.

On the 20/08/04 Appellant applied to the High Court of Rivers State, sitting in Port Harcourt for leave to enforce his fundamental rights. The Court was presided over by B. E. Ugbari J. who refused the leave and

struck out the application on the ground that Section 41 of the Constitution does not seem the appropriate right of the applicant which is being infringed as the case rather comes within Sections 35 and 41 of the 1999 Constitution, Articles 6 and 12 of the African Charter.

That the Appellant/Applicant had not made out a prima facie case for the enforcement of his fundamental rights but was at liberty to apply for bail.

That High Court Ruling set the ball of appeals rolling culminating in the present appeal.

Mr. Tuduru Ede of counsel for the Appellant on the 25th day of February, 2016 adopted the Brief of Argument of the Appellant filed on the 3/10/13 in which he raised a lone issue which is thus:-

Whether the refusal of the Honourable Learned Justices of the Court of Appeal to hear and determine the Appellant’s substantive application on the merits was proper Grounds 1-3.

Learned counsel for the Appellant also adopted a Reply Brief filed on the 21/11/2013.

Dennis I. Okwakpan Esq, for the Respondent adopted the Brief of Argument of the Respondent filed on the 18/11/2013. He also adopted the issue as crafted by the Appellant which