CORAM

PARTIES

OKECHUKWU BENSON APPELLANTS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant as the accused person was charged before a Chief Magistrate Court of Rivers State sitting in Port Harcourt on a three counts charge for conspiracy and armed robbery. The Appellant’s plea was not taken, he 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. The Appellant hence, applied to the High Court of Rivers State, sitting in Port Harcourt for leave to enforce his fundamental rights. The Court 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, 41 of the 1999 Constitution, and Articles 6, 12 of the African Charter. It also held that the Appellant had not made out a prima facie case for the enforcement of his fundamental rights but was at liberty to apply for bail. Not satisfied with the ruling, the Appellant filed an appeal at the Court of Appeal challenging the decision of the trial Court. After due consideration of the arguments of the parties the Court of Appeal entered judgment in favor of the Appellant granting leave to apply for the enforcement of his fundamental rights and the case was remitted to the Chief Judge of Rivers State for assignment to another Judge of the High Court of Rivers State for determination.  The Appellant still not satisfied with the ruling has appealed to the Supreme Court contending that this court should utilize Section 22 of the Supreme Court Act and Section 16 of the Court of Appeal Act in granting the application.

HELD

Appeal Dismissed

ISSUES

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?

RATIONES DECIDENDI

CASES CITED

STATUTES REFERRED TO

1. African Charter on Human & Peoples Rights Act

2. Constitution of the Federal Republic of Nigeria 1999(as amended)

3. Court of Appeal Act

4. Fundamental Rights (Enforcement Procedure) Rules 2009

5. Supreme Court Act, Cap 515, LFN 2004

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