MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): 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. SOLE ISSUE: 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. In brief, the appellant is asking this court to rule differently from what the Court of Appeal did as it ought to have decided the appellant’s substantive application on the merit under Sections 35 and 41 of the 1999 Constitution having regard to the provisions of Section 16 of the Court of Appeal Act and the appellant having formally pleaded for application of Section 15 of the Court of Appeal Act and in doing so act under Section 22 Supreme Court Act. Disagreeing, the respondents contend that the conditions necessary for the lower court’s invocation of its powers under Section 15 (now 16) of the Court of Appeal Act are absent in this case apart from the lower court not being competent to grant to the appellant a relief not sought and so an invocation of Section 22 of the Supreme Court Act by this court is out of the question. Taking a cue from respondent’s submission, it has to be said that the operation of Section 22 of the Supreme Court Act, Cap 515, LFN 2004 is not as a matter just for the asking as certain conditions must co-exist before such an invocation of Section 22 (supra) can be effected. These conditions are thus:- 1. The lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it. 2. The real issue raised by the claim of the appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal. 3. All necessary materials must be available to the court for consideration. 4. The injustice or hardship that will follow if the case is remitted to the court below must clearly manifest itself. I place reliance on the cases of Agbakoba v INEC (2008) 18 NWLR (Pt. 1119) 489 at 557 – 558; Obi v INEC (2007) 11 NWLR (Pt. 1036). The Court of Appeal as per Ejembi – Eko JCA allowed the appeal, holding that the trial court ought to have granted the leave and the appellate court granted leave to the appellant to enforce his fundamental rights stating that the real issue raised by the claims of the appellant at the trial court is not capable of being distilled from any of his grounds of appeal. The appellant’s urging this court to do what the Court of Appeal ought to have done utilizing the provisions of Section 15 of the Court of Appeal Act and for this court Section 22 of the Supreme Court Act deriving the force of the invitation from the fact that the necessary materials for the consideration and adjudication of the substantive matter are already in the record which materials are: 1. Motion paper 2. Statement in support of motion 3. Verifying affidavit/affidavit in support of motion, exhibits. Also to be part of the considerations are the inordinate length of time about 9 years between the trial court and the hearing of this appeal and the need to ensure that justice is served. Those arguments by the appellant are indeed seductive but something fundamental is missing, which is the fact that those materials available on the record from which the journey up to this court commenced are without any input of the respondents who ought to be heard. To elaborate, the appellant went to the Court of Appeal upon the refusal of the trial court to grant him leave to enforce his fundamental rights based on his ex-parte application. At that point, the respondents were not in a position to file any process in reaction to appellant’s application being ex-parte and so the materials appellant is touting as before the court are not complete in the absence of the respondents’ processes, respondents having had no opportunity of filing any processes at the trial Court and so all the conditions necessary for the invocation of the powers of the Court of Appeal under Section 15 or 16 of the Court of Appeal Act and Section 22 of the Supreme Court Act are absent. Another way of saying the same thing is that Section 22 of the Supreme Court Act can only be invoked where the courts below are clothed with the requisite jurisdiction to entertain and determine the matter under consideration but failed and or neglected to do so. In this instance, the Court of Appeal lacks the jurisdiction to utilize Section 15 or 16 of the Court of Appeal Act and just like the trial Court, the processes of the Respondents were not present. Therefore, the jurisdiction to act was lacking. See Hassan v. Aliyu (2010) 17 NWLR (Pt.1223) 547 at 601; Agbakoba v INEC (2008) 18 NWLR (Pt.1119) 489 at 557-558; Obi v INEC & Ors (supra) 639-640. Also to be tackled is that the relief sought by the appellant at the court below as can be seen in the Notice of Appeal to the Court of Appeal is to allow the appeal and grant leave to the appellant to enforce his fundamental rights which reliefs were awarded by the court below and so the court below was right not going beyond that and granting a relief outside the claim sought by the Appellant. In this, I cite Elendu v Ekwoaba (1998) 12 NWLR (pt. 578) 320 at 336. On the whole, I answer the question raised as issue positively in that the Court of Appeal was right to refuse to hear and determine the appellant’s substantive application on the merits and from the foregoing, I see no basis in disturbing what the Court of Appeal did and so I hereby dismiss this appeal which is unmeritorious. I affirm the decision and orders of the Court of Appeal which set aside the decision of the trial High Court and granted leave to the appellant to apply for the enforcement of his fundamental rights and the assignment by the Chief Judge of Rivers State to a judge of the High Court other than B.E. Ugbari, J. to hear and determine the matter. Counsel Appearances Tuduru Ede for appellant and Dennis Okwapam for respondent]]>

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