The criminal justice system revolves around three cardinal institutions: the police, court and prison. These institutions are partners in our failing criminal justice system, due to some practices that are inimical to the interest of society. Thus, the incalculable harm being wrecked on the Nigerian criminal justice system by the holding charge practice cannot be justified. Holding charge which involves the bringing of a suspect before an inferior Court that lacks jurisdiction to try him or her for the primary purpose of securing a remand order, in order to look for a prima facie evidence in support of the allegation against the suspect and thereafter abandon him or her in prison under the pretext of awaiting trial, leaves one to wonder whether the presumption of innocence is tenable in Nigeria.
This is because under this practice, an accused is presumed guilty until he or she proves his innocence. Also, the crisis of congestion in our prison is the result of the holding charge practice. It is trite, that jurisdiction is the life-wire of any litigation whether civil or criminal and the base on which adjudication rest. It follows that there is obviously an anomaly in bringing a suspect for remand before a magistrate who has no power to impose penalty for the indictable offence allegedly committed by the suspect. Therefore, the practice by magistrate courts who lacked Jurisdiction in indictable offence, but goes on to remand the suspect under holding charge have been considered unconstitutional, because it is a threat to the accused person’s rights to personal liberty, dignity, and fair hearing granted by the 1999 constitution (as amended). However, some states laws have given the magistrate court the impetus to continue with this harmful practice without regard to the provisions of the grundnorm. Consequently, this research work, in chapter one will take a look at the historical inception of holding charge; chapter two will focus on the meaning of the monster called holding charge, the reason for its adoption and the illegality. Chapter three will discuss on the rights of accused persons and how holding charge have thwarted its realization. Chapter four will examine the effect of holding charge in the criminal justice administration in Nigeria. The last chapter contains observation and recommendation, mainly on abrogation of all the laws that gave magistrate courts powers to remand suspects on indictable offences even when they have no jurisdiction.
i. Title page.
ii. Certification page.
iii. Approval page.
vi. Table of Contents.
vii. Table of Statutes.
viii. Table of Cases.
1.0 CHAPTER ONE: GENERAL INTRODUCTION
1.1 Background of the Study
1.2 Statement of the Problem
1.3 Research Questions
1.4 Objectives of the Study
1.5 Research Methodology
1.6 Relevance of the Study
1.7 Scope of the Study
1.8 Limitation of the Study
2.0 CHAPTER TWO: THE HOLDING CHARGE PRACTICE
2.2 The meaning of holding charge
2.3 The reasons for adopting holding charge
2.4 The procedures that enabled holding charge
2.5 Can holding charge practice be justified?
2.6 The illegality of holding charge
3.0 CHAPTER THREE: HOLDING CHARGE AND THE
RIGHTS OF SUSPECTS
3.2 The meaning of human rights
3.3 The rights to personal liberty
3.4 The right to fair trial within reasonable time
3.5 The right to presumption of innocence
3.6 The right to dignity of human person
4.0 CHAPTER FOUR: THE EFFECT OF HOLDING CHARGE
4.2 The effect on speedy administration of justice in Nigeria
4.3 The effect on the defence of the accused person
4.4 The effect on Nigeria prisons
4.5 The effect on fundamental human rights
5.0 CHAPTER FIVE: CONCLUSIONS
LIST OF ABBREVIATIONS
ALL. N. L. R. – ALL Nigeria Law Report
Cap. – Chapter
CCHCJ – Certified Copier of High Court (of Lagos
C.P.A – Criminal Procedure Act.
C.P.C – Criminal Procedure Code.
F.W.L.R. – Federation Weekly Law Report
H.R.L.A – Human Rights Law Assistance.
H.R.L.R.A. – Human Rights Law Reports of African
M.J.S.C.N – Monthly Judgment of the Supreme Court of
N.C.C. – Nigerian Criminal cases.
N.C.CL. – Nigeria. Constitutional Law Reports
N.M.L.R. – Nigeria Monthly Law Reports
N.N.L.R. – Northern Nigeria Law Reports
N.R.N.L.R – Northern Region of Nigeria Law Reports
N.S.C.C. – Nigerian supreme court case
N.S.C.C. – Nigeria supreme court case
N.S.C.Q.R. – Nigeria Supreme Court innately reports.
S.C. – Nigeria Supreme court.
S.C.N.J – Supreme court of Nigeria Judgment
S.C.N. L. R. – Supreme court of Nigeria Law re[ports
U.S. – United States
W.R.N - Week Reports of Nigeria
TABLE OF CASES
A.G Bendel State V. A. G. Fed & 22 Ors (1982) AU NLR 85 SC.
A.G Lagos State V. Dosunmu (1989) 6 S.N.J (pt. 11) 134.179.
A.G. Abia State V. A.G. Fed. (2002) 6 NWLR (pt. 763) 391.
A.G. Anambra State V.AG. Fed. (2005) 22 NSC QR (pt. 11) 574
Abacha V. Fawehinni (1996) a NWLR (pt 475) 710 – 745
Achene V. The State (1991) 8 NWLR (pt. 424) 412
Action Congress V. Kaigama (2008) 8 NWLR (pt. 1088) 165
Adamu Suleima V. C.O.P. Plateau State (2008) 8 NWLR
(pt. 1089) 298-324.
Adegbite V.C.O.P (2006) 51 W.R.N. PP. 186-187.
Agundi V. C.O.P. (2013) All F.W.L.R (pt. 660) 1243
A-h Ondo State V. A. G. Fed. (2002) 9 NWLR (pt. 772) 141
Ahmed V. C.O.P, Bauchi State (2012) 9 NWLR (pt. 1304) 104
Alaboh V. Boyles & Anor (1984) 3 NCLR 830
Alliance for Democracy V. Peter Ayodele Fayose (2005) 10 NWLR/ (pt. 932) 151.
Anaekwe V. C. O. P. (1996) 3 NWLR (Pt. 436) 330
Ani V. The State (2002), 11 WRN 53.
Apadi V. Banuso (2008) 13 NWLR (pt. 1103) 204
Ariori V.. Elemo (1983) I SCNLR I at 24-28
Asakitikpi V. The State (1993) 5 NWLR (pt. 296) 61
Bhai Chaggan Bhai v. State of Gujurat (1964) S.C. 1563.
Bola Kale V. The State (2006) 1 NWLR (pt. 962) 507
Chief Great Ovedje Ogbonu v. Chief James OnANEFE Ibori & 27 Ors (2005) 13 NWLR (pt. 942) 310.
Chinemelu V. C.O.P (1993) 4 NWLR (pt. 390) 141
Chinemelu V. C.O.P. (1995) 4 NWLR (pt. 390) 467.
Dantata V. The Police (1958) NRNLR 3.
Dantata. V. Mohammed (2005) SCNJ 17-25.
Doherty V. Balewa (1961) AU N.L.R 604. S.C.
E. A. Lufadeju & Anor. V. Evangelist Bayo Johnson (2007) 8 NWLR (pt. 1037) 535.
Edet V. State (2008) 14 NWLR (pt. 1106) 52.
EFCC V. Ekeocha (2008) 14 NWLR (pt. 1106) 161.
Emezue V. Okolo & Ors (1978) 312
Emezue V. Okolo (1978) 1. L.R.N. 236.
Enwere V. C.O.P. (1993) 6 NWLR (pt. 299) 133
Erekanure V. The State (1993) 8 NWLR 385.
Eyu v. State (1988) 2 NWLR (pt. 78) 602-626.
Fasakin Food (Nig.) itd. V. Martins Babatunde shosanyaa (2006) IMJSCN (No. 7) 48-52.
Fayemi v. Oni 92009) All FWLR (pt. 493) 1254.
FCE, Pankshin v. Pusmut (2008) 12 NWLR (pt 1101) 405.
Fyouzughu v. A g Benue State (2005) 5 NWLR (pt. 918) 226-248.
Garba v. Federal Civil Service Commission (1988) INWLR (pt. 449) 124.
Garuba v. state (19972) 4 S.C. 118
Goniv. Bornu Native authority 91957) NWLR 40-42
Hartage V. Hendric 439 PA, 584 at 601.
Hartage V. Hendrick 439 PA, 584 – 601
Ibidokun v. Adaralode (2001) 12 NWLR (pt. 727) 268-312.
Igwe v. Ezeanochie 92010 7 NWLR (pt. 1192) 61.
Jimoh V. C.O.P (2004) 17 NWLR (pt. 902) 389.
Josiah V. state (1988)2 NWLR (pt. 1)131-140.
Kingsley Ikonav. Co. p Lagos state & 4 ors (2010) 12 N. M. L. R. (pt. 1) 365.
Lakanmi V. Adoma & 3 ors (2003) 4 SCNJ 348.
Liversidge v. Anderson (1942) A.C. 206.
Madukolu V. Nkemdilim (1961) N.S.C.C (vol. 2) 374 – 380
Marbury V. Madison 5 U. S. 154 (1803).
Matari V. Dangaladima (1993) 3 NWLR (pt. 281) 265.
Mogaji V. Board of customs and exercise (1982) 2 NCLR 552.
Mohammed & Ors V. C.o.p. (1987) 4NWLR (pt. 65) 420
Musa & Anor v. C.O.P (2004) 9 NWLR (pt. 879) 483-502.
Njikonye V. M.T. N. Nigeria Communication Ltd. (2008) 9 NWLR (pt. 1092) 339.
NNPC V. Tijani (2006) 17 NWLR (pt. 1007) 29.
Nse Udo Ntita v. State (1993) NWLR (Pt. 283) 512.
Nwankwo & Ors v. the queen (1959) 2.5 C.N.R. 675.
Obekpa v. C.O.P (1980) I.N.L.R. 11.
Odogu V.A.G of the Federation (2002) 2 HRLRA 84
Ogor V. Kolawole (1985) 6 NCLR 534-540
Ogugu v. State (1994) 9 NWLR (pt. 366)1.
Ogugu v. State 91994) 9 Nwlr (pt. 3661).
Okoduwa v. State (1988) 2 NWLR (pt. 76) 512.
Olawoye & 4 Ors. V C.O.P (2006) 2 NWLR (pt. 965) 427.
Olusemo v. C.O.P (1998) II NWLR (pt. 575) 547.
Omokeloye V. State (1989) 1 C.L.R.N. 150
Onagoruwa V. State (1993) 7 NWLR (pt. 303) 49
Onasanya v. the State (1979) 6 S.C 79.Trigra Ltd. V. Universal Trust Bank PLC (2009) 12 NWLR (pt. 1155) 313.
Ononye V. Odita (2008) 10 NWLR (pt. 1096) 483.
Osheyire v. British Caledonian airways Ltd. (1990) 7 NWLR (pt. 163) 507.
Ozuinonye & Ors. V. the State (1983) 4 NCLR 204.
Peanock ltd V. Hotel presidential (1982) 12 S.Cl
Ransome Kuti v. a. G Federation 91985) 2 NWLR (pt.6) 211-230.
Rossek V. A.C.B. (1993) 10 S.C.N.J 20 at 116.
Saidu v. the state (1982) 4 S. C. 41
Sambo v. The State (1989) ICLR B 77.
Shagari V. C.O.P (2007) 5 NWLR (pt. 901) 1.
Shehu v. the state (1982) INCRI.
Shola Abu & 349 Ors v. C.O.P Lagos State & ors (Unreported) Suit No. 1 KD (M/18/2003.
Trans Bridge co. Ltd. V. Survey International Ltd. (1986) NWLR (Pt. 37) 576.
U.B.A Trustees Ltd. V. Niger Ceramic Ltd. (1987) 3 NWLR (pt. 62) 623.
Ukatu v. C.O.P (2001) FWLR (pt. 66) 758.
Ukwunnenyi & Anor. V. the state (1989) 2NSCC 42
Utih V. Onuyivwe (1999) 1 NWLR (pt. 166) 166-206.
Uwaje Nnabuife & Anor V. C.A. Maidoi & Anor (2007) LPELR.
WEC V. Balarabe (2003) 3 NWLR (pt. 806) 72 Sc.
Madukolu V. Nkemdilim (1961) N. S. C.C. (VOL. 2) 374-380
Doherty V. Balewa (1961) AN N.L.R 604 S. C.
Marbury V. Madison 5 V. S 154 (1803).
NNPC V. Tijani (2006) 17 NWLR (pt. 1007) 29.
Onoye V. Odita (2008) 10 NWLR (pt. 1096) 483.
Njikonye V. M.T.N. Nigeria Communication Ltd (2008) 9 NWLR (pt. 1092).
TABLE OF STATUTES
African Charter on Human and peoples’ rights (ratification and Enforcement) Act Cap. A9 L.F.N 2004.
Art 6 ………………………………………………..
Art 7(1)(b) ………………………………………………..
Art 5 ………………………………………………..
Art 6 (d)………………………………………………..
Art 7 ………………………………………………..
Constitution of the federal Republic of Nigeria, 1999 (as amended).
S. 35(4) and (5)…………………………………………………………
S. 35(7) (a)…………………………………………………………
S. 35(1) …………………………………………………………
S. 36(6) (a) (b) (c)…………………………………………………
S. 35(1) …………………………………………………………
S. 46(1) (2)…………………………………………………
S. 1(3) …………………………………………………………
S. 36(6) (a-d) …………………………………………………
S. 34(1) …………………………………………………………
S. 36(4) …………………………………………………………
S. 6(6)(c) …………………………………………………………
3. Criminal code Act, Cap C. 38 L.E.N. 2004
4. Criminal Procedure Act (Cap. 41 L.F.N 2004
S. 78 (a) (b)
5. Criminal Procedure Code AP 30 Laws of Northern Nigeria 1963.
6. Criminal Procedure law Cap 33 laws of Lagos state, Nigeria 1994.
7. Criminal Justice Administration (Lagos State) 2011.
S. 264 (1)
S. 264 (10) (a-c)
8. Criminal Procedure Law Cap. 49 Laws of Bendel State 1976 (as amended by the criminal procedure (Amendment) law 1991.
S. 236 (3)
9. Evidence Act 2011 (amended
S. 135 (1)
10. International covenant on civil and political Rights. 1966.
11. Police Act Cap. P. 19 L.F.N 2004.
12. Prisons Act Cap. P. 29 L.F.N 2004
13. Robbery and Firearms (special provisions Act Cap. R.11 L.F.N 2004.
14. Universal Declaration of Human rights 1948.
CHAPTER ONE: GENERAL INTRODUCTION
1.1 Background of the Study
Before an accused is brought before the Court it should be assumed that the case is ripe for hearing, not for further investigation. He must not be there on mere suspicion, which cannot be regarded as reasonable suspicious under the constitution. If there can be no sensible and prima facie inferences that can be drawn that an offence has been committed then the accused cannot be deprived of his liberty even for a second. There cannot be a ‘holding charge” hanging over an accused in Court pending the completion of investigations into the case against him1
Also, Niki Tobi in Onagoruwa v. State2, stated as follows:
In a good number of cases the police in this country rush to court on what they generally refer to as a “holding charge” ever before they conduct investigation. Where the investigation does not succeed in assembling the relevant evidence to prosecute the accused to secure conviction, the best discretion is to abandon the matter and throw in the towel. On no account should the prosecution go out of its way in search for evidence to prosecute when it is not there.
The decisions of the two justices excerpted above is pertinent in considering the police usual excuse that investigations are continuing while the suspect is kept away in perpetual detention. It is apparently one of the greatest forms of disservice to suspects, to have them brought before the courts and them proceed to investigate the allegations leveled against them. It is an indictment on the system of criminal administration and an affront to the course of justice.
The administration of criminal justice, involves three institutions, viz: the Nigerian police force, the courts and prison. The Nigerian Police Force is the product of the constitution3. One of the constitutional responsibilities of this body is to ensure that law and order are maintained in the society, and also to detect and prevent crimes4. Thus, when a crime is committed, the criminal justice process begins with the police, who have the primary obligation of investigating the criminal act and apprehending the offender5.
It follows therefore that the police are empowered by the statutes apart from their general duties of preservation of law and order, protection of life and property, enforcement of law and order, detecting and prevention of crimes also to persecute criminal cases in court. Thus, any police officer may conduct in person criminal prosecution before any court whether or not the information or complaint was laid in by the Attorney General of the Federation6
It should be noted that apart form some Tribunals established to try certain specialized offences especially during the military era in Nigeria, there are perhaps three levels of courts in Nigeria in which criminal proceedings may be instituted. These are the magistrates’ Courts, State High Courts and the Federal High Court.
Of these, it seems that it is only at the Magistrate Courts that the police commence criminal proceedings.
In the southern states of Nigeria for instance, criminal proceedings may be commenced in the Magistrates Courts by laying a complaint before a magistrate whether or not on Oath, that an offence has been committed,7 or by bringing a person arrested without a warrant before the Court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him and the time and place where the offence is alleged to have been committed8.
The main objects of these proceedings are two fold. The first is to bring the offender to the Court to face his trial,9 while the other object, as provided in section 78(b) of the C.P.A, is to bring to the notice of the accused the crime for which he is accused. From the above, it follows that majority of cases are prosecuted by the police at the Magistrate Court. Thus, immediately a complaint is received at the police station that a person has committed an offence, the suspect is arrested with or without a warrant and brought to the station pending further investigation into the case. At this stage, the police have two constitutional duties to perform in the smooth administration of justice. They are to grant bail to the suspect pending the completion of investigation into the case10, or if the alleged offence is of a serious nature in which bail cannot be granted to arraign the suspect in court within a reasonable time11.
By constitutional definitions12 reasonable time is one day where a competent Court exists within 40km radius of the place of arrest and in other circumstance, two days as the case may be. The essence of the above provisions is to ensure fair administration of criminal justice in the country, by respecting the accused person’s rights.
Unfortunately, these statutory safeguards have been abused by the men of the Nigerian police force with impunity. Thus, where an offence is committed and it is in the nature of a capital offence, say, attempted murder, murder, manslaughter or even treasonable felony, the police would ordinarily arrest such an offender. It is trite law that the police do not grant bail in capital offender. What they do in the circumstance is to arraign such offenders before a magistrate Court whom they are aware has no jurisdiction over capital offences. The magistrate would in turn, remand these suspects either in police or prison custody, pending when the police gather enough evidence on the offence allegedly committed, as well as pending when the matter is taken before a Court of competent jurisdiction. This is done under the ignoble practice of “holding charge”.
According to George O.S.A, a holding charge is brought about when the police are investigating a capital or other serious offence. In this situation the police are always faced with the constitutional provision of reasonable time within which to charge the matter to court as well as their legal incapacity of granting bail to the suspect when he could not be brought to court within time. But since the police are intent in keeping the suspect in detention pending investigation, the so-called holding charge is an apparent lawful response to the forgoing legal dilemma. What the police do as a result is to bring the suspect “before a Court of Law” as required by the constitution. But the Court, where the police head to, is that of summary jurisdiction, i.e a magistrate court which in law is incompetent to handle a capital crime. This ingenious approach is aimed at killing two birds with one stone: to remove the suspect from police custody and put him in prison custody through the instrumentality of a court of law, albeit a court of incompetent jurisdiction. By so doing, the police perceive themselves as not violating the law. Indeed, if there is any such violation, then the Magistrate’s Court should bear the responsibility, for the court, after all, should have declined jurisdiction and send back the suspect to police custody rather than remand him in prison custody.
Curiously, this unwholesome practice which the police adopts is permitted by an inferior law14 in Lagos the offending Law was s.236(3) of the Criminal Procedure Law of Lagos 1994 (now section 264 of the Criminal Justice Administration (Lagos state 2011) which allowed the Magistrate Court to remand offenders in indictable offences. Surprisingly also, the Supreme Court out of sentiment have upheld this practice in E.A Lufadeju & Anor. V. Evangelist Bayo Johnson15.
However, scholars have criticized this decision of the Supreme Court, and recommend that it should overrule itself when the opportunity presents itself16. Be it as it may, nothing can justify the incalculable harm being wrecked on the Nigeria Criminal Justice system by the holding charge17.
1.2 Statement of the Problem
… no citizen of this country ought to be detained in any cell (without being taken to a court of law) for more than 24 hours. We ought also to finally turn our backs on the colonial argument which saw every suspect as a criminal who must be detained17.
The terrible effects of pre-trial incarceration was captured by Galadima J. C. A. citing the decision in Hartage v. Hendrick18 taken from paragraph 5.2.10 of Appellant’s Brief in Bayo Johnson’s case in the following words:
The imprisonment of an accused prior to a determination of guilt is a rather awesome thing: it costs the taxpayers tremendous sums of money: it deprives the affected individual of his most precious freedom and liberty: It deprives him of his ability to support himself and his family, it quite possibly costs him his job, it restricts his ability to participate in his own defense, it subjects him to the dehumanization of prison, it separates him from his family and without trial, it casts over him an aura of criminal guilt.
Those very illuminating words clearly encapsulate the dilemma of the Awaiting Trial Prisoners (detained consequent upon a holding charge) in Nigeria. He is not anticipated and therefore not provided for in the nation’s budget and has to contend with the harsh realities of prison life. All these coupled with the fact that he may turn out to be innocent of the offences for which he is detained inevitably lead one to the points of interface between the regime of holding charge and fundamental human rights.
The utilization of the holding charge as a method of instituting criminal proceedings amounts to putting the cart before the horse.19 For, rather than carryout proper investigation, gather sufficient evidence and obtain proper professional legal advice before filling a charge, the police prosecutors merely arrest and rush to court on a “holding charge” and hope to stumble on sufficiently incriminating evidence subsequently. There is no proof of evidence against him while the “holding charge is continuously held against him like a sword of Damocles.20 Niki Tobi J.C.A21 expressed this sentiment in the following words:
It is not in my humble view, the function of the prosecutor… to rush a charge to a magistrate’s court which has no jurisdiction to try murder cases, and play for time while investigation is in progress. I have said it before and I will say it again that the unique police phraseology of a “holding charge” is not known to our criminal law and jurisprudence. It is either a charge or not. There is nothing like a ‘holding charge.22
It is unfortunate to observe that notwithstanding the criticism of this practice of holding charge by the police due to its negative implications in our criminal justice system, the practice still persist. It has been shown that those remanded by the orders of court accounted for about 50% of awaiting trial Persons (ATPs) in the country and consequently, a major cause of over crowding and congestion in our prisons.23
Without fear of contradiction, the consequences of the present system of administration of criminal justice at the lower bench in Nigerian are punitive and unfair to the accused person. It need not be emphasize that, by assuming jurisdiction in such cases where they are incompetent to do so, Magistrates Courts unwittingly aid the police to continue the detention of suspects under different nomenclature called prison custody, albeit brought about unlawfully.24
For instance, criminal suspects who are presumed innocent until the contrary is proved under the constitution25 are made prisoners through the machinery of the court under non existing law, and at times under an inferior law. This practice has created the problem where relevant provisions of the constitution (especially chapter four), which courts have the primary responsibility to enforce in any part of Nigeria to be under-enforced nay breached. Also following the practice of holding charge, the much touted prison decongestion is more congested than before in the execution of remand order of the learned magistrates.
As a rule, Awaiting Trial Persons (ATPs) constitute a significant percentage of the prison population.26 the most challenging aspect is that form the moment those remanded under holding charge steps into the confines of a prison, they are considered “a thing” beyond the fringe of humanity and, consequently, of humane treatment. They are beaten, harassed and visited with all kinds of indignities and outrages. Moreover, the sprawling prison system of Nigeria is not only infested with myriad of human rights violations, the entire structure seems, indeed, dependent on these violations for its very survival in its present, ugly form.
Little wonder Professor Adedokun Adeyemi27 has described the Nigerian prison system as lacking both deterrent and reformative value. Accordingly, it has become very costly to the economy, it is physiologically, psychologically and emotionally destructive, it is socially damaging, culturally abhorrent and penologically disastrous.28
Adeyemi’s views are supported by the assertion of H.S. Labo29 that:
…the vast majority of prison inmates belong to the 16-50 year old economically productive bracket most of whom remain in prison awaiting trial for many years, in a most de-humanizing condition…immense emotional and psychological stress are common antecedents of the custodial circumstances of imprisonment.
Finally, in making the remand order by Magistrate, most victims are not informed of the charge against them till they are docked. And the court has no inkling of the facts of the case save as read to the accused in the open court. This has been described as an unlawful court ordeal proceeding30.
In my humble view, this practice is a clear breach of law, derogation and affront to our constitution, which guarantees fundamental human rights,31 and provide for the procedures of treating criminal suspect in order to ensure fairness. Thus, is it my submission that magistrate court should not always hesitate in declining to make any order whatsoever in any holding charge proceeding. This is because the court has the primary responsibility to uphold fair and impartial proceeding in line with the extant laws to guarantee proper administration of justice. And it is trite law that a magistrate has no power to assume jurisdiction in capital offence, let alone make an order to remand can accused in prison or police custody.32
1.3 Research Question
Having studied the practice of holding charge, and how it have served as a clog in the wheel of effective and efficient administration of our criminal justice in Nigeria, the following questions have been formulated, with the hope to address them in the course of this research.
1. What is the legality of taken a suspect accused of committing a capital offence to magistrate courts that have no jurisdiction in order to secure a remand order by the police?
2. If the practice is illegal, then why is it still in practice?
3. What is the attitude of the judiciary towards this practice in the course of interpreting the constitution and administering justice?
4. What is the attitude of the executive arm of government who enforce the law as regards courts decision about the practice?
5. What is the validity of states law that have legalize this practice vis-à-vis the constitution of Nigeria?
6. What is the legality of remand orders by our magistrate courts on indictable offences which they lack the jurisdiction to entertain?
7. Whether by the decision of the Supreme Court in E.A. Lufadeju and Anor v. Evangelist Bayo Johnson,33 it could be rightly said that the apex court approves holding charge practice.
1.4 Objective of the Study
It is my paramount objective in this research to do the followings:
1. To examine the legal concept of holding charge and remand orders by magistrate courts.
2. To examine holding charge as it affect human rights of a suspect as provided in our constitution.
3. To unearth the difficulty posed by the practice of holding charge in the administration of criminal system in Nigeria.
4. To state the constitutionality or otherwise of the holding charge syndrome.
5. To examine the effect of holding charge to prison congestion and the inhuman conditions of prisoners under awaiting trial.
6. To x-ray case laws and statutes in order to understating the courts’ view on the holding charge syndrome, and to proffer suggestions on how criminals in Nigeria should be dealt with.
7. To provoke wider thoughts on better ways to safeguard the rights of the suspects as against what is obtainable under holding charge practice.
8. To proffer solutions to all the problems identified during the research work.
1.5 Research Methodology
In this research work, the method mostly adopted is doctrinal method, though empirical method was partly adopted.
The doctrinal aspect involved reading of voluminous books written by different legal pundits, which reflects the essay topic. In addition, a reasonable number of other materials like workshop papers, journals, conference paper, articles presented in different places and occasions by legal scholars and human right activists mostly on criminal justice reform in Nigeria.
The empirical aspect involved visiting in-mates in the prisons to get relevant information from them which would be beneficial and helpful in the essay writing.
1.6 Relevance of the Study
The study of what the practice of holding charge is, and its effect on the administration of criminal justice in Nigeria is of utmost importance. According to the Human Rights Watch 34.
In numerous countries-including Bangladesh, Chad, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, India, Mali, Nigeria, Pakistan, Paraguay, Peru, Rwanda, Uganda, Uruguay, and Venezuela-unsentenced prisoners make up the majority of the prison population. Such detainees may in many instances be held for years before being judged not guilty of the crime with which they were charged. They may even be imprisoned for periods longer than the sentences they would have served had they been found guilty. This state of affairs not only violates fundamental human rights norms it contributes significantly to prison overcrowding a problem that is itself at the root of numerous additional abuses. The lengthy detention of unsentenced prisoners has its origin in two common phenomena; the denial of pretrial release to criminal defendants, and the excessive duration of criminal proceedings. Both of these ingredients in themselves violate international human rights norm but combined together they constitute a grievous affront to justice… solving the problem of excessive pretrial detention will require courage innovative thinking, an overhaul of the code of criminal procedure, strengthening the judiciary and in particular, increasing its size and efficiency; provisional release laws and effective substitutes for detention. The precise nature of adopting these reforms will require careful examination and analysis for them to fit conformably within a country’s existing legal framework”
The Human Rights Watch Report quoted above offers very insightful analysis of the problem of pretrial detention (or holding charge) and possible solutions. Thus, this research work gives an insight into the implications of holding charge.
Also, the work gives an insight into the reasons why this practice is common among the police .One of the reasons, being delay in carrying out of proper investigation by the Police. Admittedly the police force is handicapped by numerous logistic constrains such as inadequacy of trained, dedicated and well motivated officers. The inadequacy of office accommodation, stationery, transport and communication facilities further limits their efficiency. Transfer of officers handling a case and the lack of transportation facilities to bring prisoners to court constitute additional constraints.35
Finally, this research goes further, to provide possible solutions to curb the menace of holding charge practice on our legal system, and to provide better approach towards ensuring that every person’s rights are protected.
1.7 Scope of the Study
This research work considered mostly how the awaiting trials arrested and detained under the guise of holding charge are generally treated. The legality of holding charge as it affects the provisions of the 1999 constitution (as amended) especially the human right provisions, the effects of holding charge in Nigerian prisons. The research work also took a look on the statutory powers of the police, and factors militating against the police in carrying out their constitutional functions. And finally, how all these have contributed in crippling our Criminal Justice Administration.
1.8 Limitation of the Study
Generally, in carrying out an effective research work, many hurdles must be encountered. Thus, in this research, the following problems were experienced:
1. The time frame was completely inadequate, and therefore, one has to denial himself many things in order to meet up with the allotted time.
2. Getting primary and secondary materials was not easy in the course of this research.
3. Money has always been the problem of most students, let alone a research student. Therefore, the money needed to facilitate this research work was the greatest setback in the course of the research work.
THE HOLDING CHARGE PRACTICE
THE HOLDING CHARGE PRACTICE IN CRIMINAL LAW | MEANING | REASONS | PROCEDURES | ILLEGALITY PRACTICE
The police institution is the first institution that a criminal suspect comes in contact with. Whatever becomes his or her fate will be determined to a large extent by the way the police go about its duty of investigating and starting the locomotive wheel of the criminal justice system. The police institution is therefore a sieving institution. It sieves, using the barometer role in sieving suspects. Evidence gathering is untidy and more often than not the police are not willing to let a suspect go even when the scale of probable or reasonable cause tilt in his favour. Using the instrument of holding charge, the police usually keep the suspect in detention, whilst evidence of guilt is sought. This practice is the main causes of congestion in Nigerian prison. Many people are not supposed to be in prison are there because of failure of investigation. Thus, this chapter will focus on the meaning of holding charge, the reasons for its adoption, the procedures that enabled it, whether the practice can be justified, and the unconstitutionality of the practice.
Meaning of Holding Charge
Neither the constitution nor any other existing law1 in force in Nigeria defines the concept of holding charge. Accordingly, there is no authoritative definition of the term. Ayorinde J, agreed with this assertion in Ogor v. Kolawole2 when he said that: “Our constitution or any other existing law in force in this country does not provide for a holding charge…”
Onu J.C.A made a similar observation in Chief Pat Enwere V.C.O.P3, and proffered the following solution:
“As the Constitution of the Federal Republic of Nigeria 1979, or any other existing law in force in this country does not provide for a “holding charge”, an accused ought to be released on bail within reasonable time before trial…”
Notwithstanding the absence of any constitutional or statutory definition of the holding charge, the practice exists and portents grave danger to the criminal justice system. In order to capture the essence of the practice, the following definition will suffice, a holding charge arises where a person brought before a magistrate or Area Court for a criminal charge (usually on capital offences) is remanded in prison custody to await commencement of his prosecution. It is the outcome of police inability to investigate and prosecute crime within the time stipulated by the law.4 The practice is predominant in the inferior courts of records, particularly the magistrate (In southern States) and the Area Court (in the Northern States5.
According to Bryan A, Garner6, holding charge means a criminal charge of some minor offense filed to keep the accused in custody while prosecutors take time to build a bigger case and prepare more serious charges. It follows that holding charge is a creation of police prosecutors7. The intention of the police is to detain the suspect for as long as investigation into the case lasts including the outcome of the DPP’s advice and until there is a final decision whether or not to take the case to a competent Court8.
Holding charge has also been explained as a charge brought against an accused person in a court without jurisdiction to try the offence charged pending the receipt of legal advice from the office of the director of Public prosecutions for the accused person’s trial in the court of competent jurisdiction or tribunal set up to try the particular offence9. It is also called remand charge i.e a charge brought before a magistrate for the sole purpose of obtaining a remand order or where applicable and appropriate, an order for bail.10
From the foregoing therefore, holding charge is understood to mean a system of bringing an accused person before an inferior Court that lack jurisdiction to try him or her for the primary aim of securing a remand order and thereafter abandon him or her in prison custody under the pretence of awaiting trial. A procedure is tantamount to a holding charge if the suspect is charged to a court that obviously lacks jurisdiction to try the substantive offence and the said Court makes an order remanding the accused in custody without plea11in lieu of striking out the charge for want of jurisdiction.
Thus, holding charge proceedings are usually instituted in the magistrate courts12 by police prosecutors. They are common in respect of such heinous crimes carrying capital punishment as treason13, murder14 instigating invasion of Nigeria15, and armed robbery,16 and such other offences triable by various miscellaneous offences tribunals. It is the practice of police prosecutors in a holding charge proceeding to arraign the accused before a magistrate court. The accused is neither expected nor allow to plea to the charge. Instead the police prosecutor applies for an adjournment for the purpose of forwarding the case file to the office of the DPP for legal advice. Thereafter the accused is remanded17 in prison custody on the order of the magistrate pending a receipt of legal advice.
Unfortunately, the legal advice may not be forthcoming for a period of a year or more. In the interim, the accused continues to languish in prison custody. Accused persons in this category constitute the bulk of the “Awaiting Trial Men” (ATM). Also, when a decision is finally taken to prosecute, the actual filing of information in the High Court or at the appropriate tribunal may yet take a much longer period. In all these cases, it is the accused whose rights are violently abused who suffers.
The utilization of the holding charge as a method of instituting criminal proceedings amounts to putting the cart before the horse. For, rather than carry out proper investigation, gather sufficient evidence and obtain proper professional legal advice before filing a charge, the police prosecutors merely arrest and rush to court on a “holding charge” and hope to stumble on sufficiently incriminating evidence subsequently18.There is no proof of evidence, no formal charge and the accused is least aware of the quantum of evidence against him while the “holding charge” is continuously held against him like a sword of Damocles19.
In Bola Kale v. The State20, the court of Appeal expressed this sentiment in the following words:
“It is an aberration and an abuse of judicial process for an accused person to be arraigned before a magistrate for an offence over which it has no jurisdiction only for the accused person to be remanded in prison custody and not tried or properly charged before a competent court for trial. It will be an infraction on the rights to fair haring and liberty of the accused person.”
It follows that lack of jurisdiction is often the subject matter of remand order by the magistrates’ courts where the suspect is brought before it on holding charge.
2.2 Reasons for Adopting Holding Charge
Having discussed that holding charge was invented into our criminal justice administration by the police, the question is, what are the reasons for adopting such an unwholesome practice? Below have been identified as reasons in adopting the holding charge by police prosecutors.
1. To circumvent the constitutional provision of reasonable time within which to bring the suspect to a court21. Most often than not, the police are aware of the constitutional provision of reasonable time within which to bring a suspect to court. But this obligation is feasible only when or after full investigation into the alleged crime committed by the suspect. In any case, the police are desirous of keeping the suspect in confinement pending the completion of investigation. This is because to them, they cannot investigate a crime and interrogate suspects within such a short period of time, as provided in the constitution. Thus, they are of the view that “there is no case that can be cracked within 24 hours unless it is a traffic offence”22
In the words of a former Attorney General and Minister of Justice of the Federation, Dr. Olu Onagoruwa, holding charge is
“… a ploy resorted to by the police to cover their inefficiency or down right illegality by keeping arrested persons in detention beyond the constitutional limitation”23.
Holding charge is therefore a perceived lawful respond to this dilemma. This ingenious approach is aimed at killing two birds with one stone; to remove the suspect from police custody and put him in prison custody through the instrumentality of a court of law. The police doing this perceive themselves as not violating the law24. Thus, they have acknowledged that holding charge was borne out of the need to get suspect out of their custody without violating their guaranteed rights to personal liberty25.
2. The legal incapacity of the police to grant bail to criminal suspect with respect to certain criminal offences like murder, armed robbery and treasonable felony etc. This is because the law considered these offences by their nature to be serious and they are punishable with death.26.
However, it should be noted that the seriousness of an offence does not depend on the imagination of the police officer. In Emezue v. Okolo27 the court held that offences like attempted murder, rape, burglary, arson are serious offences. For these reasons where the police wish to detain a suspect beyond a reasonable time without being accused of violating the 24 or 48 hours as the case may be, provided by the constitution they have to bring him before a magistrate court for the purpose of obtaining remand order. The order if obtained will be the authority for further detention of the suspect while investigation into the case last.
The former Inspector General of police, Sunday Ehindaro, who before his appointment was a Deputy Inspector-General of police and head of Legal Department of the police force, has written that:
There are those who have committed or reasonably suspected of committing indictable or non-bailable offences such as murder or armed robbery and the police need them in custody to complete investigation. The law in some states like Lagos and Anambra provides that such detainee should be taken to a magistrate’s court for the purpose of remand…, often times, when the police resort to taking such suspect before a magistrate’s court pending the conclusion of investigations, the charge is coined a “Holding charge28…
In many cases such persons are not granted bail because the offence is the most serious, known to criminal law. It is therefore not unexpected that the basic law, i.e the constitution would not permit the release of such an accused within three months of arrest or detention.29.
From the above, it is obvious that the main reason for adopting holding charge by police prosecutors depends on the seriousness of the offence. The police looked at holding charge as a last resort during investigation, till the suspect is arraigned to a court of competent jurisdiction for his trial.
The procedures that enabled holding charge
In Nigeria, two procedures have been identified as necessitating the practice of holding charge. The first is the procedure established by the observance of laws made to empower the magistrate courts or to increase the jurisdiction of the magistrate court in respect of capital offences. The second is the procedure established by practice to advert ills.
Procedures established by law
Over the years, some states in Nigeria have enacted laws with intent to increase the jurisdiction of the magistrate court, but in essence are establishing the practice of holding charge. For instance in Lagos state, there is Section 236 (3) of the Criminal Procedure Law30, the effect of which the supreme court held holding charge legal in the case of Lufadeju v. Johnson31.
According to S. 264(1) of the C.J.A of Lagos State:
Any person arrested for any triable on information offence shall within a reasonable time of arrest be brought before a magistrate for remand and the magistrate shall have powers to remand such a person after examining the reasons for the arrest exhibited in the request form filed by the police, and if satisfied that there is probable cause to remand such persons pending legal advice of the Director of public prosecutor or arraignment of such person before the appropriate court or tribunal.
According to subsection (2);
Where applicable, a magistrate shall grant bail to any person brought before him pursuant to sub section (1) of this section pending the arraignment of such person before the appropriate court or tribunal.
Sub section (10) provide thus:
“In this section unless the context otherwise requires, “offences triable on information” means any offence:-
(a) Which on conviction shall be punished by a term of imprisonment exceeding two (2) years.
(b) Which on conviction shall be punished by imposition of a fine-exceeding fifty thousand (N50,000.00)naira; or
(c) Which on conviction shall be punished by death.
Also, by virtue of section 236(3) of the Criminal Procedure Law32, trial magistrates or president of Area Customary Court are empowered to remand accused person in cases where they do not have jurisdiction to try the offenders. Thus, in the case of Uwaje Nnabuife and Anor v. CA. Maidoi-l, esq. & Anor33. The Court of Appeal upheld this provision when it decided thus:
This appeal emanated and got it roots from the proceedings in the Chief Magistrate Court Owa-Oyibu in Delta State when the appellants were arrested at Mbiri on the 21st day of November 2004 and later charged to the chief magistrate court Owa-Oyibu for the offence of conspiracy and armed robbery punishable under SS. 516 and 402 of the criminal code.
The chief magistrate declined jurisdiction to try the appellants but remanded the appellants. The appellants challenged the order made by the chief magistrate at the High Court of Justice Owa-Oyibu, Delta State. The trial Judge Osasi J. on 15th June 2005 dismissed the case of the appellants. Dissatisfied with the decision of the High Court has appealed to this court.
In conclusion, the learned Justices held the appeal to be unmeritorious. The appeal was dismissed and the decision of Ogisi J, delivered on 19/6/2005 was affirmed. It should be noted that the court relied heavily on the apex court decision in Lufadeju v. Johnson.
Procedures established by practice
Apart from the power of the police to grant bail to a suspect pending the completion of investigation under S. 17 or pending trial under S. 18 of C.P.A, it often arraigns accused persons before magistrate courts upon a holding charge. As already defined, holding charge is the practice of preferring charges especially in respect of capital offences against accused persons in magistrate courts even when such courts are obviously incompetent to try such offences.
Admittedly, the process of investigating crime and prosecuting offenders by the police is no doubt cumbersome and in some case the system is confronted with the problem of suspect fleeing or in some case tampering with investigation. For instance, in Dantata v. The Police, the application of the accused person for bail was refused on the ground that he earlier on offered a bribe to the police in order to retrieve evidence of the offence while in police custody.
Thus, the remand procedure was introduced to ensure that accused person in deserving cases are kept in detention to enable the police conclude investigation as to whether or not such person can be arraigned. The procedure in this respect is that upon the arraignment of the accused, the presiding judicial officer will order that the accused be remanded in prison custody without the plea of the accused being taken. The duration of the remand is until the arraignment of the accused person in a competent court.
Apparently, this practice has been resorted to by the police to circumvent the provisions of section 35(4)35 which provides to the effect that any person arrested or detained must be brought before a court of law having jurisdiction in respect of such offences within a reasonable time. Another aspect of this procedure also practiced by the police is that when the police arrest and detain a person suspected of committing a serious offence and thereafter they find themselves in serious legal problem where they do not know what to do with the accused. A prima facie evidence in support of the allegation against the suspect may be unavailable but there is hope that as the detention continues, reliable evidence might be possible 36
In order to avoid actions for unlawful detention37 or false imprisonment38, they rush the accused to the court of law. The court is usually the magistrate court which the police know very well that it lacked jurisdiction to hear the matter. The intention of the police usually is to detain the suspect by the order of the magistrate for as long as investigation into the case last including the outcome of the D.P.P’s advice and until there is final decision whether or not to take the case to a competent Court.39
As rightly pointed out by Faga H.P,40 the fallacy of this form of holding charge is that the accused person is only purported to be arraigned, while in true fact, there is no proper arraignment. The procedure for a valid arraignment must be in conformity with section 215 of the C.P.A, and as stated in Lufadeju v. Johnson41, wherein the Supreme Court outlined the requirement for a valid arraignment to be:
(a) The accused must be placed before the court unfiltered unless the court shall see cause otherwise to order.
(b) The charge or information must be read over and explain to the satisfaction of the court by the registrar or other officer of the court.
(c) It must be read and explained to him in the language he understands.
(d) The accused must be called upon to plead thereto unless there exist any valid reason to do otherwise such as objection for want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith.
The court went further to say that the above stated requirements of the law are mandatory and must therefore be strictly complied in all criminal trials. As they have been specifically provided to guarantee the fair trial of an accused person and to safeguard his interest at such a trial, failure to satisfy any of them will render the whole trial defective, null and void.42.
Therefore, since there is no taking of plea in the remand procedures, it is not a proper arraignment. The magistrate court only takes cognizance of the offence, which it has no jurisdiction to try. In Omoteloye v. State,43the Court of Appeal per Salami JCA held that a criminal trial commences with the proper arraignment of the accused before the court. Where there is no arraignment but a mere cognizance of an offence, it is really doubtful that the provisions of section 35(4) (5) of the 1999 CFRN is complied with. In such a case, the accused person cannot be said to be properly brought before any court of competent jurisdiction as required by the constitution44.
The problem with holding charge is not only that the court before which the accused is brought lack jurisdiction, the court in addition to the want of jurisdiction makes orders in respect to such offences which it has no jurisdiction for the remand of the accused person pending the time the accused will be brought before a competent Court. This practice is totally wrong, unlawful, unconstitutional and unreasonable.
2.4 Can holding Charge be Justify?
It is trite that two equally important Model Criminal Processes compete for primacy in every criminal adjudication system to wit; Due Process Model and the Crime Control Model. But the Due Process Model is supreme over the Crime Control Model45. This is because the crime control model operates within the ambit of law, that is Due Process Model although the aim of the latter (due process model) is to achieve the former (crime control model)46. Thus, no matter how involved the procedure, no matter how slow the process; no matter how inconvenient the outcome, a court to be truly such, must insist on protecting a citizen unless and until he or she is brought within the legally defined scope of a sanction.47
In a nutshell, crime control model of criminal justice administration emphasis the repression of crime and protection of the victim’s right. It maintains that the accused should be presumed guilty while the law enforcement agents be empowered to investigate, arrest, search, seize and prosecute with less legal technicalities. The proponent contends that certain individual rights must be sacrificed for the common good. On the other hand, proponents of due process model insist on informed consideration and respect for individual rights and fundamental fairness under the law.
From the above, it goes without saying that holding charge originated form the crime control model. But it should be noted that Crime Control Model of criminal justice administration suffices a reason for remand order. To them capital offences are heinous crimes, and from the vantage point of public order and safety, court acts passionately to protect the society from the grievous harms of individuals with presumed high criminal propensity- the recidivists. Therefore, the accused is remanded for his safety and deterrence, as a warning to others (general deterrence), and for the safety of the society at large.
Thus, according to D. Peter48, it was in the face of the increasing number of persons suspected of having committed heinous and capital offence, and the trial of whom might not commence within a reasonable time, that the Lagos State government in 1979 promulgated the Administration of Justice (Miscellaneous) provisions Edict.49 This Edit amended Section 236 of the Criminal Procedure Law50 of Lagos State by adding a subsection 3 to that section. The amendment which was incorporated into the 1994 Laws of Lagos State51 provides as follows:
S.236 (3)52 if any person arrested for any indictable offence is brought before magistrate for remand, such magistrate shall remand such person in custody or where applicable, grant him bail pending the arraignment of such person before the appropriate court for trial.
According to Fora Arthur-Worrey, former Director of Public Prosecution in Lagos State53, the amendment became inevitable in view of the length of time it takes for the police to complete investigation into the crime and more often than not, the trial delays which the frequent transfer of Investigation Police Officers across the country cause. Thus, it became imperative to find a legally justifiable basis for the detention of suspect, especially when the detention is beyond the limit permitted by the constitution.
It has been asserted that the nation’s police force may be said to be a reflection of the society, and the Nigerian police force does not appear to derogate from this assertion. Multi-tudinal problems,54 confront the Nigerian police and thwarts its efforts to quick and successful crime investigation and prosecution. These diverse problems range form lack of personnel or adequately trained personnel, poor remuneration and lack of requisite equipment and infrastructure to engender motivation, commitment and efficiency. The combination of all these result in a situation of nonchalance, and lackadaisical attitude on the part of the police to crime investigation. Hence, the resort to filing of the “holding charge” in a court lacking jurisdiction and the resultant gross violation of human rights of the person concerned.55
Even when the case file is eventually sent to the appropriate department of the Ministry of Justice for legal advice, it sometimes merely marks another phase of delayed justice for the accused person. The cause of delay here is not uncommonly associated with the fact that some ministries of justice are not just under-staffed56 but are also cash strapped. Thus, apart from inadequate personnel, mundane things required to keep an office functioning such as files etc are sometimes not available.
This eventually results in unnecessary delay in the issuance of legal advice by the professional staff of the ministries. And when a decision is finally taken to prosecute, the actual filing of information in the High court or at the appropriate tribunal may yet take a much longer period. In all cases, is the accused whose rights are violently abuse who suffers. From the above analysis, can it be said that holding charge practice is justifiable? It should be noted that Section 36  provides for due process model while the holding charge procedure is in the class of crime control model. Therefore, nothing shall be accepted as a reason for the express breach of the provisions of the constitution. Thus, holding charge is unconstitutional, and it is preposterous to argue that the remand of an accused presumed to be innocent will deter others at large58
Our criminal jurisprudence is consistent with the law of personal criminal responsibility. However, the holding charge perfidy, life some ouster clauses in our laws, may be described as a “beneficial wrongdoing”59 it is in the class of crime control model of the administration of criminal justice.
2.5 The Illegality of Holding Charge
The 1999 constitution contains copious provisions guaranteeing the rights of an accused person before, during and after trial in a court of law. Section 36(1) of the constitution (as amended) provides as follows:
In the determination of his civil rights and obligations including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.
According to the constitution also, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. In the same vein, every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail the nature of the offence, be given adequate time and facilities for the preparation of his defence, and to defend himself in person or by legal practitioner of his own choice60.
Also, the same constitution guarantees the right to personal liberty61, with certain limitations thus by virtue of section 35(4) (a-b)62 any person arrested or detained of any criminal offence, may be released conditionally or unconditionally, to avail him the opportunity of appearance to stand trial at a time and place specified.
However, it is unfortunate to observe that notwithstanding these glittering provisions of the Constitution on the fair and speedy administration of criminal justice in Nigeria, the reality is that the law is honoured more in breach than in the observance.
Suffice it to state that the process whereby the accused person is denied speedy trial for a criminal allegation leveled against him is a breach of he constitutional provisions that provide fair trial for the accused person within a reasonable time is more germane considering the fact that the accused person is still presumed innocent until the contrary is proved.63
Moreso, a practice where the accused person is brought before an incompetent court on a charge sheet which is read to him without his plea nor bail granted to him (even though the offence maybe bailable) but remanded in prison or police custody cannot by any stretch of imagination be regarded as an arraignment but a holding charge which offends the personal liberty of the accused person as guaranteed by the constitution. Thus, the court in a plethora of cases had decided that holding charge is illegal and unknown to our criminal jurisprudence. For instance, in Shagari v. C.O.P64 it was held that holding charge is unknown to Nigerian law and any person or an accused person detained thereunder is entitled to be released on bail within a reasonable time before trial. The court went ahead to say that a holding charge has no place in Nigerian judicial system, and persons detained under an “illegal”, “unlawful”, and “unconstitutional” document tagged “holding charge” must un-hesitantly be released on bail. In the instant case, the appellants were arraigned before a Chief magistrate’s Court, which certainly lacked jurisdiction in homicide cases/offences and there was no formal charge framed against them accompanied by proof of evidence as at the time the High Court heard their motion for bail. The above amounted to special circumstance for the High court to admit them on bail, but by continuing to detain them on a “holding charge” was not a judicious and judicial exercise of discretion, said the Court.
Also in Ahmed v. C.O.P, Bauchi State,65 the appellant was arrested alongside other accused persons on allegation of having committed criminal conspiracy, mischief, causing grievous hurt and culpable homicide punishable with death. The appellant and his co-accused were arraigned before the Chief Magistrate Court I, Bauchi vide first information reports in terms of the criminal allegations. The chief magistrate ordered the appellant to be remanded in prison custody. The appellant then filed an application at the High Court for bail pending arraignment before a Court of competent jurisdiction. The High court refused the application, and the appellant appealed to the court of Appeal. Allowing the appeal, the Court held inter alia: A holding charge is unknown to Nigerian law, it is illegal and unconstitutional. An accused person detained thereunder, is entitled to be released on bail within a reasonable time before trial. In the case, per Oredola JCA at pages 128-129 stated:
It is both a notorious fact and an established law, that allegation of culpaple homicide shall be triable in the High court of the state concerned. In this regard, where jurisdiction to try alleged offenders is vested by law in the High Court, the taking to or arraignment of an alleged offender before a Chief Magistrate court is tantamount to “holding charge” which has been strongly and soundly condemned and described as illegal and unconstitutional,... in the instant case, the chief magistrate had no jurisdiction to try the case, the chief Magistrate had no jurisdiction to try the case of culpable homicide punishable with death. Additionally, no such charge has been place or filed before the High court at the time the application for bail was made, considered and refused by the lower court….
From the above cases, the illegality of holding charge have been expose, and therefore, an accused person ought to be released on bail within a reasonable time before trial.66
It should be stated at this juncture that much as the enormous task of crime prevention, detention and investigations must be appreciated, I do not think that, that is enough reason to be used as a cover to give legal validity to undue detention of a citizen pending police investigation. Therefore, we should not sacrifice the fundamental right to personal liberty of presumably innocent citizens on the altar of crime prevention and detention. These rights are age long and inalienable. Nnamani, J.S.C.,67emphasized this point when he observed:
… no citizen of this country ought to be detained in any cell (without being taken to a court of law) for more than 24 hours. We ought also to finally turn our backs on the colonial argument which saw every suspect as a criminal who must be detained.
Earlier in Ogbuawunmi v. Federal A.G & ors68 Adefarasin, C.J. stated:
However much the requirement that persons suspected of crime should not be detained for more than 24 hours may hamper investigations, it must be rigidly observed… I have taken trouble to discuss here the powers of the police with regard to custody of suspected offenders because the practice to detain them for longer period than is prescribed by law is widespread.
These statements, though made over decades ago, are still very much relevant today as the police still persist in detaining suspects for a period longer than stipulated by our laws under the cover of a holding charge. For this reason Nnamani, J.S.C, advised:
We have to develop a practice of encouraging the police to take these persons to Magistrate’s Court on holding charges for either bail or lawful remand. I also call on the Inspector-General to effectively halt this phenomenon by instituting a scheme that enables senior police officers to maintain constant supervision of personnel in the outlying commands69
However, it is unfortunate to note that section 264 of the C.J.A is meant to empower any magistrate court in Lagos state to remand even where it lacks the jurisdiction to try the offence70. Subsection (1) provides as follows:
Any person arrested for any triable on information offence shall within a reasonable time of arrest be brought before a Magistrate for remand and the magistrate shall have Powers to remand such a person after examining the reasons for the arrests exhibited in the request form filed by the police and if satisfied that there is probable cause to remand such person pending legal advice of the Director of public prosecution or arraignment of such person before the appropriate court or tribunal.
According to subsection (10) of section 264, unless the context otherwise requires, “offences triable on information means any offence”:-
(a) Which on conviction shall be punished by a term of imprisonment exceeding two(2) years;
(b) Which on conviction shall be punished by imposition of a fine exceeding fifty thousand (N50,000,00) naira, or
(c) Which on conviction shall be punished by death.
The above provision approves that where a suspect is brought before a magistrate on a murder charge, the court can remand the suspect when such court lacks the jurisdiction to even try the offence.
In any case, my concern with the above provision is its tendency of luring the police into sleeping over a proceeding that can keep a person charged with an offence in custody indefinitely on the ground of further investigation or inquires before arraignment in the appropriate court or tribunal. What I rather consider awful is the cheap opportunities statutory provision like this and its likes can provide for the police to buy time while the accused person languishes in prison custody. More worrisome is the fact that the police hardly conclude investigation and when concluded may not have prima facie evidence in support of the allegation, hence rushing to court to secure remand order is the only perceived lawful means of playing for time. This practice is also sometimes employed by the police to punish the accused person where they have interest in the matter or case. I am particularly concerned not with what these laws intend to achieve with provisions of these nature, but with what the police would want to achieve with them.
It is submitted that the laws should be repeated72. It is unconstitutional and violates SS.35 and 36 of the constitution. The constitution is the fundamental and supreme law of Nigeria. It is the highest law in Nigeria and it is the foundation law on which every other law in Nigeria rest. The constitution is the embodiment of rule of law and the foundation of rule of law, because it establishes the rule of law. The constitution is supreme and its provisions bind all authorities and persons in Nigeria. The action of any authority or persons which contravenes the constitution is unconstitutional, null and void and of no effect whatsoever, and such act is liable to be set aside by court73. Section 1(3) of the Constitution provides that if any law is inconsistent with the provisions of the constitution, the constitution shall prevail, and that other law shall to the extent of the inconsistency be void.74 The laws that provide for holding charge by allowing magistrates to remand on indictable offence is against the right to personal liberty of the suspect that guarantees fair trial within a reasonable time.
It follows therefore, that the usual orders by the magistrate that the accused person should be remanded in prison custody without his plea and bail is wrong.
According to Obande F. Ogbuinya,75 a Court devoid of jurisdiction over a matter is willy-nilly bound to make an order in respect thereof. These burden duty of court-affects civil and criminal matters. Thus, jurisdiction is very important and indispensable in the determination of justice. It is the hub of all judicial processes so much that the validity or otherwise of any proceeding turns on its existence or non existence. Bairamian, L.J. in the celebrated case of Madukolu v. Nkemdilim76 did not brake at marshaling the vital ingredients of jurisdiction. His Lordship summed them up by profferring the sore aftermath of defects in jurisdiction. Hear him:
Any defect in competence is fatal, for the proceedings are a nullity, however well conducted and decoded: the defect is extrinsic to adjudication. If the court is competent, the proceedings are not a nullity.77
Justice Kayode Eso pointed out;
“The substratum of a court is no doubt jurisdiction. Without it, the ‘labourers’ therein, that is both litigants and counsel on the one hand, and the judge on the other hand, labour in vain”78
In like manner, in Utih v. Onoyivwe79 Justice Bello states that
“Jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood”
Of equal significance is the pronouncement of Justice Akpata to the effect that :
“A court with jurisdiction builds on a solid foundation because jurisdiction is the bedrock on which court proceedings are based, but when a court lacks jurisdiction and continues to hear and determine judicial proceedings, it builds on quicksand and all proceedings and steps taken on it will not stand”80
From the foregoing, it is trite law that once a court observed that it has no jurisdiction to entertain a matter the proper order to make is to struck out the matter and not to remand the suspect because any subsequent proceeding or order made by the court is a nullity and consequently void81 It follows therefore that the C.J.A of Lagos state and other states laws which provide for the remand of an accused person notwithstanding that the court lacks jurisdiction to try the substantive offence is against the tenet of fair administration of criminal justice in Nigeria. It is unfortunate to observe however, that the practice of holding charge has been upheld by the apex court, thereby validating states law that provide for remand order.
In Mrs. E.A Lufadeju & Anor v. Evangelist Bayo Johnson82 the respondent was arrested on 12th January, 1997 for conspiracy to commit treason and the commission of reasonable felony. He was taken along with eleven (11) others before the 1st appellant. Mrs. E.A Lufadeju, Chief magistrate grade 1 on 12th march, 1997. The charge was read but the plea of the accused was not taken. The 1st appellant refused oral application for the bail of the respondent on the ground that she lacked the power to entertain and consider a bail application in respect of a capital offence as treason. However, the 1st appellant ordered that the respondent among others be remanded in custody at the Force (CID), Alagbon.
Consequently, the respondent filed an application at the High court for his bail, damages and a declaration that his detention on the remand order of the magistrate was unconstitutional. The application was dismissed. The High court rather declared the remand order as valid, being remand proceedings under Section 236 (3) of the Criminal Procedure Law, cap 33, Vol. 2, laws of Lagos State 1994 which provides; if any person arrested for an indictable offence is brought before any magistrate for remand. Such magistrate shall remand such person in custody or where applicable grant bail to him pending the arraignment of such person before the appropriate court or tribunal.
The respondent was dissatisfied with the decision of the High Court and he appealed to the court of Appeal which allowed the appeal. The Court of Appeal specifically held as follows.
(a) That the learned judge was not right to have upheld the remand order of the learned magistrate;
(b) That there was an obvious jurisdictional error on the face of the record of proceedings;
(c) That the learned magistrate had no Jurisdiction over treason as rightly admitted;
(d) That the learned magistrate unlawfully used the mechanism of the holding charge to remand the appellant83
Surprisingly the Supreme Court, on further appeal, reversed the decision of Court of Appeal. The apex court held that remand proceeding is known to law and therefore lawful. The court was swayed into judicial sentiment, with respect be cause the learned magistrate was joined to be condemned into damages in her personal capacity84 The pronouncement of Nike Tobi J.S.C and Onnoghen, J.S.C are relevant in this regard. According to Justice Niki Tobi85
…should the slip result in condemning the 1st appellant to damages, I ask? Should a slip of a magistrate not be corrected by the system of appeal, I ask again? When did it become the law that when a magistrate commits an error in procedure, the remedy available to the aggrieved party is to sue for damages? I must express my discomfort when a magistrate is sued for damages in the performance of judicial duties. I see in this appeal such a situation. The 1st appellant performed her duties as a magistrate in the administration of criminal justice and I feel bad that she was sued in the person. While I agree or concede that there are instances where a magistrate could be sued. I do not see any abuse of judicial power on the part of the 1st appellant. A magistrate could be wrong in the interpretation of the enabling laws but that should not give rise to an action in damages. The proper step to take is appeal against the decision of the magistrate and not to file an action in damages.
Per Onnoghen J.S.C86 on his own part stated thus:
…if it was not enough for him to sue the Hon. Attorney General of Lagos state, learned counsel for the respondent could have joined the Chief Registrar in the action not to proceed against the 1st appellant personally. If what has been done by learned counsel for the respondent is intended to intimidate or embarrass the bench, I believe he has failed in the mission as the bench can neither be intimidated not embarrassed in the discharge of its responsibilities under the constitution of this nation.If anything I hold the view that it is rather the learned counsel for the respondent that should be embarrassed by personalizing what is in reality not personal.(Italise is mine in the above pronouncements)
Notwithstanding the obvious sentiments in the above decision, there are valid and must be obeyed till set aside87 by virtue of the doctrine of judicial precedent. Thus, in U.B.A Trustees Ltd v. Niger Ceramic Ltd88 Nnaemeka Agu J.S.C (as he then was ) said:
In our hierarchical system of court, the law is in the final analysis of what the Supreme Court says it is; once they have decided a point of law, their decision as by the doctrine of stare decisis is binding on all other courts in the country. The farthest to which any court can go is to criticize but apply it.
But it may be queried thus; what becomes of the ideas contained in the decision of the Supreme Court in Rossek v. A.C.B89 where it was stated:
“Certainty ought not be maintained on the alter of erroneous construction clearly at variance with the express words and intentions of the provision construed. A docile adherence to the rule of binding precedent even where the decision is found to be erroneous is more productive of injustice.”
It is on this premise that I maintain that holding charge procedure is illegal and all orders proceeding therefrom are nullities. This view is supported by the recent decision of the Appeal Court in the case of Agundi v. C. O.P90 where it held that it is unconstitutional for a magistrate court to take cognizance of an offence, remand a suspect into prison custody and make binding orders when the court lacks the requisite jurisdiction to entertain such matters.
However, it have been reasoned that when the opportunity presents itself, the Supreme Court should seize same to affirm the unconstitutionality of holding charge91. And also that any law that sections holding charge should be interpreted narrowly, strictly and restrictively against the party seeking to rely on it and more liberally and sympathetically in favour of the accused person who is being deprived of his constitutional rights upon reliance on the said statute.92 Thus, the correct attitude of court in interpreting legislations which adversely affects the rights of a citizen is to construe the statute fortissine contra preferetes to avoid injustice and advance the protection of the rights of the citizens.93
HOLDING CHARGE AND THE RIGHTS OF SUSPECTS IN A POLICE CELL | CRIMINAL LAW3.1 Introduction
Human rights, as we know them today, assumed formidable dimensions in the Post-World War 11 years, catalyzed by the desire of peoples and nations to redefine, reassert and restore the intrinsic worth and dignity of man after the bitter ravages and savagery of that war. This desire found expression in concrete terms on December 10, 1948 when the General Assembly of the United Nations Organization (UNO) adopted the Universal Declaration of Human Rights.
However, the philosophical foundations of human rights are traceable to the Natural law Theories of the early times1. In their view, Nature endowed man with certain rights which protect and preserve the sacredness of the human person as inviolable, equal to his fellow man, free and independent. The Natural law Theory emphasizes the universal nature of the rights of man. As Niall MacDermott puts it:
Human rights are part of the common heritage of all mankind without discrimination on grounds of race, sex, religious or other differences. These rights, common to all mankind, have a long history many of them finding their origin in religious teachings. But now, in our lifetime, they have been formulated more fully than ever before and agreed to by all peoples from all parts of the world.2
Nigeria’s fundamental human rights provisions3 are essentially civil and political in nature apparently on the recommendation of the Willink Commission on Minorities.4 The other categories of rights are represented under the Fundamental Objectives and Directive Principles of State Police5 which are however non justiciable6.
Unfortunately the menace of holding charge has devastating consequences on the fundamental human rights of suspects. The consequences have corresponding effects on Nigeria’s criminal justice system and therefore make the call for far-reaching reforms, an absolute necessity. Thus, this chapter will analyze the affront of holding charge to the accused rights to personal liberty, fair trial within a reasonable time and presumption of innocence etc.
3.2 Meaning of Human Rights
The concept of human rights, like most juristic concepts, evades an apt definition. According to Prof. Nwazuoke7, one point of major agreement, is that the addition of the adjective ‘human’ to rights indicate that the rights in question belong solely to human beings, and all that is needed to have them is human nature. It is on this basis that they have been described as inalienable8.
In 1945, the nations of the world realized and expressed in the Charter of the United Nations9, that the future peace of the world depended on the guaranteeing to every man, woman and child of certain fundamental human rights and freedoms. In a succession of Declarations and Charters since then, on almost every continent upon the globe, those rights and freedoms have been enshrined as among the most precious aspirations of the people.
Human rights include (but are not limited to those civil and political rights, which are recognized and protected in the domestic (constitutional) jurisprudence of most modern nations10. Civil and political rights are essentially conceptualized as checks on the abuse of state power, and include the rights to privacy, free movement, personal liberty, free association, equality before the law etc.
Human rights have been described by the Naturalist School of jurisprudence as inalienable and proceeding from the law of nature and not as a gift of any civil authority.11 The philosophical foundations of human rights are traceable to the Natural Law Theories of the early times. In their view, nature endowed man with certain rights that protect and preserve the sacredness of the human person as inviolable, equal to his fellow man, free and independent. The Natural Law Theory emphasizes the universal nature of the rights of man. As Niall MacDermott puts it:
Human rights are part of the common heritage of all mankind without discrimination on grounds of race, sex, religious or other differences. These rights, common to all mankind, have a long history, many of them finding their origin in religious teachings. But now, in our life time, they have been formulated more fully than ever before and agreed to by all peoples from all parts of world.12
It follows from the above, that human rights are the creation of nature. There are right that every individual irrespective of race, religion, ethnic group, sex or disability have been endowed by nature. It is a gift of nature and protected by the constitution. Chapter 11 and IV of the constitution guaranteed them13 Prof. Osita Eze defined human rights as:
Demands or claims which individuals or groups make on society, some of which are protected by law and have become part of the lex leta, while others remain aspiration to be attained in the future14.
The apex court had also defined it in the case of Ransome Kuti V. A. G. Federation15. Per Kayode Eso JSC (as he then was) when he said that human right:
Is a right which stands above the ordinary laws of the land and which is in fact antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our constitution since independent is to have these rights enshrined in the constitution so that the right could be immutable to the extent of the non-immutability of the constitution itself.
Fundamental rights are rights derived from natural or fundamental law. In Igwe V. Ezeanochie16, it was held to be universal in the sense that all people have and should enjoy them and to be independent in the sense that the exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of fundamental rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life. The fundamental rights law in Nigeria is contained, inter alia, in two major documents. These are the 1999 constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.17
The statute books gave protection to those rights written in there and also provide for their due enforcement. Thus, if any person fells that his or her rights have been breached or contravened by any person or authority, such person is allowed to apply in the high court of the state for redress.18
Regrettably, the activities of the police and magistrate courts are delimiting these rights from the citizens without a due process of law, with the Cankerworm of arbitrary arrest, detention and other forms of unlawful act known as “holding charge”. Many persons arrested and detained for mere suspicion of having committed criminal offence are in different prisons and police custody without due consideration to the law.
Awaiting Trial Persons (ATPS) are a special category of prisoners. They have not been convicted. Nevertheless, they suffer the inconvenience and dehumanization
That goes with conviction. The predicament of the average ATP in Nigeria must be considered against the backdrop that the prison authorities make little or no preparation for him and therefore make him susceptible to varying degrees of human rights abuses. It is in the light of the foregoing that this research considers the significant impact unlawful detention – awaiting trial has on the fundamental rights of persons who, under the law, are mere suspects.
3.3 The Right to Personal Liberty
Right to personal liberty is perhaps one of the most cherished of all rights, probably next in importance to the right to life. Professor Stone has well written that:
One of the hallmarks of a free society is the ability of its citizen to go about their business without the need to explain to anyone in authority what they are doing, and without the fear that they may be subject to arbitrary challenge or arrest.19
According to Dr. Okpara, Okpara,20 every person no matter his or her condition in life views his liberty or physical freedom as a priceless attribute as a human being created in the image of God himself with rational possibilities. Lord Denning in a general sense, defined right to personal liberty as:
“The freedom of every law-abiding citizen to think what he will, to say what he will on his lawful occasions without let or hindrance from any other persons.”.21
The above statement must not be seen as entirely descriptive of personal liberty as it appears not to recognize the limitations on individual rights to personal liberty. The following comments of Justice Pius Aderemi22 attempts to achieve the balance required in formulating an acceptable definition of the right to personal liberty:
Freedom is no doubt the greatest gift or heritage of man. Omnipotence created man and accorded him with divine freedom. Man are born free with liberty to think what he will, to say what he will and to go where he likes, all in a lawful manner without let or hindrance from any other person, private or governmental authorities. It therefore follows that generally, detention of a man by a fellow man is a violation of the law of God and man. I am not oblivious of the fact that they are checks and balances to the series of freedom given to man. To the extent to which a man must not do his things in a way calculated to injure or adversely affect the exercise of the freedom of another man, his own freedom is limited….
From the above therefore, right to personal liberty, is the right not to be subjected to imprisonment, arrest and any other physical coercion in any manner that does not admit of legal justification.23
In Liversidge V. Anderson,24 Lord Atkin said that “in English law every imprisonment is prima facie unlawful, and that it is for a person directing imprisonment to justify his act.”
The right to personal liberty is prescribed under section 35 (1) of the constitution as follows;
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:
(a) In execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty;
(b) By reason of his failure to comply with the order of a court or in order to secure the fulfillment of any obligation imposed upon him 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 such extent as may be reasonably necessary to prevent his committing a criminal offence;
(d) In the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their case or treatment or the protection of the community;
(e) For the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto:
Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.
Similarly, Article 6 of the African charter on Human and peoples’ Rights25 provides that:
Every individual shall have the right to liberty and to the security of his person. No one may be deprived his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
Subsumed in the personal liberty provision are other rights of a custodial detainee. These include the right not to be in custody awaiting trial for a period longer than the maximum period of imprisonment prescribed for the offence26, right to silence,27 rights to be arraigned within a reasonable time28.
The deprivation of personal liberty is unlawful except in the specified cases, and even in the specified cases, it is still unlawful unless law specifically authorizes it. With the sanction of law enacted by the legislature, five types of detention are permitted under the constitutional guarantee of personal liberty, namely protective, corrective custody, detention ordered by a court for non-compliance with a court order, detention in connection with the commission of a criminal offence, preventive detention pursuant to conviction and sentence by a court for a criminal offence.29
Thus, detention is constitutionally permitted when the law in the case of a person reasonably suspected of having committed a criminal offence, authorizes it. But, a person so detained must be brought before a court of law30 within a reasonable time.31 It has been argued that persons detained under holding charges are held for the purpose of being brought before courts in execution of an order of court. But the decision in Shola Abu and 349 Ors v. Commissioner of Police, Lagos State and Ors32 has however punctuated this argument.
According to Justice Olokooba,33
Such orders by magistrates’ courts have however been held unconstitutional above being ultra vires the magistrate…. In other words the applicants have been held not to have been detained in accordance with a procedure permitted by law. They were ordered to be remanded pursuant to a void order. Where this is the case, the order the court ought to make is an order releasing the suspect…
Justice Olokooba’s clear distinction between detention pursuant to a valid order of court and that following an invalid order is instructive in view of the persistent resort to section 35 of the constitution to justify detention under holding charges. Interestingly, the Shola Abu’s case also considered propriety of detention for the purpose of being brought before a court upon reasonable suspicion of having committed a criminal offence and dealt with it as follows:34
It is the duty of the respondents therefore to prove that applicants are being detained for the purpose of being brought before a court upon reasonable suspicion of their having committed criminal offences. The emphasis here is on “reasonable suspicion” it is also necessary to show that that is the real purpose for which the applicants are being detained. Arresting a citizen, charging him before a court of incompetent jurisdiction in the indeterminate future would not appear to me to demonstrate the reasonableness of the suspicion pursuant to which he has been deprived of his liberty.
The judge further maintained that35.
To demonstrate that a citizen is detained pending being brought before a court of law upon reasonable suspicion of a criminal offence, those who claimed to have reasonably suspected him of the offence and apprehended him for that reason must demonstrate the reasonableness of their suspicion by arraigning him before a court of competent jurisdiction, where the reasonableness thereof will tested within a reasonable time.
This researcher cannot agree more with the learned judge. It remains to add that section 35 (1) of the constitution and Article 6 of the African Charter on Human and Peoples’ Rights guarantee the right to liberty and disclose exceptions but do not contemplate the power of magistrates to make remand orders as contained in Section 264 of the C. J. A. of Lagos State36. As a matter of fact, Article 6, affirms that… no one may be arbitrarily arrested and detained. Consequently, a conflict exists between S. 264 of C. J. A. and S. 35 (1) of the constitutions. Under the principle of supremacy of the constitution as provided in S. 1 (3) of the constitution, the courts have power to declare any provision of any law which is in conflict or inconsistent with the provisions of the constitution whether directly or indirectly void.37 By and large, it should be noted that the liberty of the individual person is central to all the advantages of a civilized society. To therefore deprive an individual of his personal liberty on whatever guise without just cause is a grave step in the process of administration of justice.
3.4 The Right to Fair Trial within Reasonable Time
Notwithstanding the glittering provisions of Nigerian law on the speedy administration of criminal justice in Nigeria, the reality is that the law is honoured more in the breach than in the observance. The chorus ‘justice delayed is justice denied’ has become a senseless nuisance to most of the persons and institution which are intimately connected with the administration of justice in our country and a saddening reminder to those directly affected, of a totally bankrupt system of administration of justice. This is of course extremely sad, since that chorus is absolutely true.38
Section 36 (4) of the constitution provides: Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal, provided that-
(a) a court or such a tribunal may exclude from its proceeding persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice.
(b) If any proceedings before a court or such tribunal, a minister of the government of the federation or a commissioner of the government of a state satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other actions as may be necessary or expedient to prevent the disclosure of the matter.
Similarly Article 7 (1) (d) of the African Charter Provides that:
Every individual shall have the right to have his cause heard. This comprises: (d) they right to be tried within a reasonable time by an impartial court or tribunal.
The above provisions as well as Article 10 of the United Nations Universal Declaration on Human Rights39 (UDHR) guarantee fair trial.
Article 10 of the UDHR provides: Every one is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
The right to fair trial within reasonable time40 embodies two important components namely, the right to fair hearing and the right to speedy trial. It is imperative to note that the two components differ fundamentally. While trial is all encompassing, that is, from arraignment to the conclusion of the trial culminating in the announcing of the decision of the court or tribunal; fair hearing entails merely from arraignment to the putting of the case for the defence.41
What emerged form the brief analysis above is that I am more concerned with fair hearing under this head even though neither of the rights is guaranteed the suspect in the final analysis. Suspects held under the holding charge are not properly arraigned considering that a critical ingredient of the arraignment process is always missing namely, the plea. However, when examined thoroughly, the right to fair hearing gives rise to the following component rights, a few of which become relevant to the current discourse- right to presumption of innocence; 42right to the informed promptly and in detail the nature of the offence charged in the language which the suspect understands;43 right to be given adequate time and faculties for the preparation of his defense44; right to defend himself in person or by counsel of his choice,45 right to examine in person or by his legal practitioner witnesses called by the prosecution or by the defence46.
The purposes of bringing a suspect before a court of competent jurisdiction is to enable the court decide the plausibility of releasing the suspect. Trial within reasonable time is constitutionally stipulated because delay impairs the ability of an accused person to defend himself in view of the fact that a vital witness may have died in the interval or the reelection of the facts by other witnesses may have become blurred.
The duty of ensuring that the right to fair hearing is enjoyed falls squarely on the shoulders of all courts and tribunals established by law and constituted in such a manner as to ensure their independence and impartiality. The courts should therefore refuse recognition to the holding charge practice, where accused persons spend more years undergoing trial than even the maximum period of imprisonment, stipulated under the law, to which they may have been sentenced, if eventually convicted, is most abhorrent and unacceptable in a civilized society governed by laws. If approximates to grave injustice and flagrant violation of human rights to subject an accused person to a long and interminable trial. It inflicts severe harm and damage to the dignity and mental well being of the affected persons, on whom the charge is made to hang on precariously and menacingly, like the mystical sword of Damocles.
3.5 The Right to Presumption of Innocence
A rebuttable presumption of law refers to the inference drawn from specific facts, which are conclusive until disproved by evidence to the contrary47. The concept of presumption of innocence is a rebuttable presumption of law.
Presumption of innocence is exemplified in section 36(5) of the constitution, as follows:
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
Article 7 (1) (b) of the African Charter similarly provides:
Every individual shall have the right to have his cause heard. This comprises:
(b) The right to be presumed innocent until proved guilty by a competent court or tribunal.
The International Covenant on Civil and Political Rights (ICCPR)48 and UDHR equally has provisions recognizing the presumption of innocence in favour of persons charged with criminal offences. Accordingly, Article 14 of ICCPR provides:
Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
Article 11 of the UDHR also provides:
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in public trial at which he has had all the guarantees necessary for his defence.
The import of the above provisions is that there is general presumption of innocence in favour of an accused person unless the contrary is proved in a court of competent jurisdiction. Section 145 (2) of the Evidence Act49 states that:
Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.
The burden of proving the guilt of an accused person rests on the prosecution and the standard of proof is beyond reasonable doubt.50 In the case of Goni V. Bornu Native Authority51 the court held that “it is not the duty of the accused to prove his innocence, it is the duty of the accuser (prosecution to prove his guilty”. This is coterminous with the case of Bhai Chaggan Bhai V. State of Gujurat52 where the Indian Supreme Court held inter alia that:
It is a fundamental principle of criminal jurisprudence that an accused is presumed innocent. Therefore, the burden lies on the prosecution to prove the guilt of an accused beyond reasonable doubt… this general burden never shifts and it always rests on the prosecution.
In Nigeria, there are many instances in which accused persons are incarcerated in some prisons for very long periods of time without trial. Where an accused person is detained for about two years without trial, would that contravene the presumption of innocence?
In the case of Musa and 7 ors V. C.O. P53 the appellants were arraigned before the upper Area court, Kabong, Jos, upon allegations in a First Information Report of commission of several offences including culpable homicide punishable with death. The appellants were detained for about 22 months. The Upper Area Court refused their application for bail on the grounds that it lacked the jurisdiction to do so. The High Court also dismissed their application for bail. On appeal, the Court of Appeal held inter alia, that the continued detention of the appellants in prison custody for 22 months is “contrary and contradictory to the age long existing principle of presumption of innocence enshrined in section 36(5) of the 1999 constitution” Obguagu54 J. C. A. held as follows:
... it is now settled, that it is better for one hundred accused persons to go free, than for one person to be punished for an offence he did not commit or had no hand in it’s committal. That is why the provision in section 36 (5) of the 1999 constitution that every person who is charged with an offence shall be presumed innocent until he is proved guilty and this will be, beyond reasonable doubt. Happily, sentiment, have no place in our courts.
Thus,on the authority of Musa V. C.O.P.55 it is submitted that the detention of an accused person for two years, without trial, is a gross violation of the presumption of innocence.56
It should be noted, that the right to bail is essential to the realization of the principle of presumption of innocence provided by the Nigerian constitution and the African Charter on Human and Peoples’ Right. Where the right of an accused person to bail is arbitrarily refused by the court, the provision of presumption of innocence under Nigeria law would be rendered otiose.57 Thus, in the case of Obekpa V. C.O.P58 the court observed that:
It is a constitutional privilege which (an accused person) is entitled to under the constitution… unless the right to bail or freedom before conviction is preserved, protected and allowed, the presumption of innocence constitutionally guaranteed to every individual accused of a criminal offence would lose its meaning and force.
It follows from the above that the provision of presumption of innocence under Nigerian law can only be efficacious if accused persons awaiting trial are admitted to bail. In the case of Saidu V The state,59 Obaseki, J. S. C. (as he then was) held as follows.
It does not give the court any joy to see offenders escape the penalty they richly deserve but until they are proved under the appropriate law in our law court, they are entitled to walk about in our streets and tread the Nigerian soil and breath the Nigerian air as free and innocent men and women.
It is apposite to note that the days when courts are inclined not to grant bail to accused persons charged with serious criminal offence, such as capital offences, are over in contemporary Nigeria. In the relatively recent case of Adamu Suleiman and Ors V. C. O. P. Plateau state,60 the Supreme Court held, inter alia, that: “The court can, in appropriate case, grant bail to a person accused of murder.”
The Court per Niki Tobi.61 J. S. C., held that the right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pretrial freedom to an accused….
According to Paul Adole Ejembi, 62 where an accused person is tried in a court of competent jurisdiction and is discharged and acquitted, the right to presumption of innocence becomes irrebutable, subject to appeal and ought to be given full legal effect. Little wonder the Supreme Court in the case of Onasanya V. The state63 stated that:
… where there is absolutely no evidence against an accused person at the end of the prosecution’s case, the court is under a legal obligation to discharge him at that stage. To do otherwise would be tantamount to placing upon the prisoner the onus of establishing his innocence. This is a contravention of the presumption of innocence enshrined in the constitution.
It may be deduced in the light of the foregoing, that presumption of innocence presupposes that a person accused of an offence no matter the gravity of the offence, is as innocent as a dove, until the contrary is proved, and such an accused person ought to be treated as an innocent person by all and sundry.
Also, suffice to say here is the fact that the right to presumption of innocence begins at the time of suspicion for crime, and runs through arrest, preferment of charges, and trial. Therefore, Section 264 of the C. J. A of Lagos State,64 violates the presumption of innocence by permitting prolonged detention prior to charge when the case against the suspect has not been settled. The pre-trial process must be premised on the goals of fairness and minimal error. The principles of due process require that a judicial determination in the form of bail hearing should precede the deprivation of liberty at the pre-trial stage. The presumption of innocence should guide the fact finder in that determination and prevent inferences of guilt flowing from the mere fact of arrest.
3.6 The Right to Dignity of Human Person
The dignity to the human person is rated very high in comparison with other rights. Dignity is perhaps the most fundamental attribute of an individual’s personality and this makes it necessary that it should be protected in all circumstances.
Section 34 (1) of the constitution provides:
Every individual is entitled to respect for the dignity of his person and accordingly.
(a) No person shall be subjected to torture or inhuman or degrading treatment;
(b) No person shall be held in slavery or servitude;
(c) No person shall be required to perform forced or compulsory labour.
Similarly, Article 5 of the African Charter of Human Peoples’ Rights provides that:
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition to his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, in human or degrading punishment and treatment shall be prohibited.
The wordings of these provisions are clear and unambiguous and the law is that they should be construed and given their literal interpretation.65
Unfortunately, the above right is respected more in breach than in adherence, when viewed in terms of the deplorable living conditions in our prison, and the manner the law enforcement agencies treat suspects. For in stance, in the case of Mr. Kingsley Ikonna V. Commissioner of Police, Lagos State and 4 ors,66 the applicant was arrested by some policemen who allegedly raided a hotel to arrest a robbery suspect. In a bid to obtain a confessional statement, the applicant was then taken to a detention facility and subjected to physical abuse and torture by the policemen. The court held inter alia: The fundamental rights of citizens are constitutionally guaranteed in Chapter IV of the 1999 constitution, the court has a duty to protect these constitutionally guaranteed rights. In the instant case, the applicant was incarcerated and subjected to severe torture. There is also evidence that the applicant was unlawfully arrested and no attempt has been made by the respondents to prove the lawfulness of the arrest and detention. Therefore, the arrest and detention of the applicant as well as his torture and shooting while in detention and his continued incarceration are flagrant violations of the fundamental rights of the applicant as protected by the provisions of sections 34 and 35 of the constitution and are therefore, illegal and unlawful.
Also, in the case of Mogaji V. Board of Customs and Excise,67 Adefarasin C. J. held that it is a violation of the constitutional prohibition of inhuman or degrading treatment to organize a raid with use of guns, horse whips, tear-gas, and strike or otherwise injure custodians of such goods. In Alaboh V. Boyles and Anor68, the beating, pushing and submersion with the applicant’s head in a pool of water by the first respondent was held to constitute inhuman and degrading treatment.
A prisoner, as a result of being in prison, is particularly vulnerable to arbitrary and unlawful action. Those who are responsible for his imprisonment should be subject to the scrutiny and control of, and in particular, the ordinary courts of the land.69
Judge Tumin’s postulation is more appropriate for Nigeria considering the prejudice that follows imprisonment. The prisoner, having been neglected by society and the prison system must find some solace in the law and the courts. Accordingly, an International Legal Instrument70 provides that all persons under any form of detention or imprisonment shall be treated in a human manner and with respect for the inherent dignity of the human person.
It should be noted that respect for human dignity is a critical issue in most Nigerian prisons. This is because the fact of imprisonment appears to offer some incentive to impunity for security officers. Torture of prison inmates in Nigeria is the norm than the exception. For instance disrespect for the dignity of a prisoner’s person manifest itself in several aspects of prison life notably classification and housing of prisoners.
Rule 8 of the United Nations Standard Minimum Rules for the Treatment of Prisoners71 to which Nigeria is a signatory provides as follows:
“The different categories of prisoners shall be kept in separate institutions taking into account of their sex, age, criminal record, the legal reasons for the detention and the necessities of their treatmen”72
However, in Nigeria, segregation of prisoners is observed more in breach despite the express provisions of Section 2 (4) of the Prisons Act73 to that effect.
Thus, the Former Director of the Nigerian Prison Service, Mr. Lily Ojo, admitted that there is a problem when he said:
“The problem of overcrowding has not only imposed strains on prison management but has rendered the concept of classification meaningless in our prisons”74
According to D.U. Ekumankama,75 the direct consequences of overcrowding and or congestion of prisons is that even good managers are rendered helpless as there is nothing they can do on their own to solve the problem. The position as reported by the Nigeria law Reform Commission in 1983  is that offenders are locked up under inhuman conditions often with 100 (one hundred) inmates occupying a cell that was meant for at most 20 persons. The prison cells are overcrowded and without good ventilation, and the building erected during the colonial era has no room for extension.
It is humbly submitted that being a prison inmate, does not confer a status of “awaiting death” on the prisoner. Therefore, it is absolutely wrong to bastardly treat inmates anathematically. Consequently the practice of holding charge is incompatible with and therefore significantly impacts suspect’s right to dignity of the human person.
THE EFFECT OF HOLDING CHARGE PRACTICE
Within the framework of criminal justice administration in Nigeria, members of the Nigerian police force play an important role in the detection, prevention and investigation of crimes. However, a very reprehensible and time-consuming police practice is what is known as a “holding charge”. Thus, in perceived serious cases, the police, who usually prosecute some cases, often require the advice of the director of public prosecution on their competence to prosecute a suspect, or whether the justice ministry would undertake the prosecution of the suspect. Pending such advice, and in some instances further investigation, the suspect is normally charged before magistrate courts or area courts (since the police generally prosecute cases in such courts) even though these courts have no jurisdiction over such cases. When an application for the release of the accused person on bail is made, these courts often reject the application on the ground that, since they have no jurisdiction over the offences in question they lack jurisdiction to order the release of the accused person on bail1. Amazingly, these courts usually order that the accused person be remanded in prison custody until the requisite advice, which is rarely forthcoming, is received by the police.2
Consequently, this chapter will examine the necessary implications of this practice by the police and magistrates’ courts on the speedy administration of criminal justice in Nigeria, on the defence of the accused, on the Nigeria prison and finally on the fundamental human rights of the accused persons. This is because those remanded in custody on the basis of the so called holding charge are sometimes forgotten in custody, or further investigations of the allegations against them are not accorded due attention. Such inmates sometimes remain in custody for periods longer than they would have served if they had been tried, found guilty, and sentenced.
4.2 THE EFFECT ON SPEEDY ADMINISTRATION OF CRIMINAL JUSTICE IN NIGERIA
Holding charge practice is one of the chief reason why criminal trial in Nigeria is largely regarded as unfair. Even though much has been said about the illegality and unconstitutionality of the practice in Nigeria’s criminal justice system,3 the practice still persists, maybe on the strength of the Supreme Court decision in Johnson V. Lufadeju.4
The right to fair hearing within a reasonable time is guaranteed by section 36 of the constitution of Nigeria (as amended). By section 36 (4) of the constitution, whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal. Additionally Article 6 (d) of the African Charter on Human and Peoples’ Rights, makes provision for the right of an accused person to be tried “within a reasonable time”. Although, the term “reasonable” is nebulous,5 in section 35 (5) of the same constitution the expression “a reasonable time” is defined as period of one (1) day in the case of arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty (40) kilometers, and in any other cases a period of two (2) days or such longer period as, in the circumstances may be considered by the court to be reasonable. Also, what amounts to a reasonable time has been well settled by the Supreme Court, in the case of Ariori v. Elemo6. The Court held, Per Obaseki, JSC thus:
“Reasonable time must mean the period of time which in the search for justice, does not wear out parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable persons to be done”7
Whatever period the court may in any circumstance consider reasonable, it is my humble opinion that the quality of justice the court will at any time administer will depend greatly on the time. And it should be borne in mind that criminal justice is such that requires speedy administration, because of its punitive nature. The common slogan, “justice delayed is justice denied” could be given credence when the courts allow the unwholesome practice called “holding charge” to be a bump or even a barricade in the quest to administer criminal justice.
Although every case has to be examined and determined on its own peculiar facts and circumstances, the American court laid down some guiding factors to be considered in construing the delay in prosecuting an accused person. In Baker v. Wingo,8 the court observed as follows:
“Some of the factors which court assess in determining whether a particular defendant has been deprived of his rights. Though, some might express them in different ways, we identify for such factors length of delays, the reason for the delay, the defendants assertion of his rights and prejudice to the defendants.”
From the above, it is my humble opinion that any delay, particularly a deliberate one for advantage in any guise should weigh heavily against the prosecution. It takes longer time to complete investigation into a case by the police. Sometimes, this is deliberate, while in some cases it could be due to lack of personnel and facilities to conduct proper investigation. Also, legal advice from the office of the director of public prosecution takes longer time to obtain whether or not the police should prosecute the suspect.9
The police however, knowing fully that these are hardly enough excuses for not charging the suspect to court within a reasonable time as provided by the constitution, resort to the amorphous practice called “holding charge” in a bid to pull out of this legal dilemma. Hence, the suspect is hastily arraigned before a magistrate court which the police know lacks jurisdiction to try the offence alleged in order to obtain an order of remand. By this order, the suspect will be remanded in police or prison custody pending whenever the police are done with their investigation into the allegation and probably come up with the proper charge before the proper court or pending when the D.P.P will issue his advice. Until this is done, the suspect is left to languish in police or prison custody indefinitely. This is against the interest of criminal justice, particularly when the life of the suspect is at stake.
Little wonder the Supreme Court in Garuba V. State,10 strongly condemned the inordinate period of two years and two months, which the appellant spent in custody before his trial. It should be emphasis that the expression “within a reasonable time” as used in the constitution was conceived in order to facilitate speedy trial of cases in our courts. The courts therefore should rise to this occasion by striking out cases before them when they find out they lack jurisdiction to entertain the matter11.
Also in the case of Dantata V. Mohammed12 the Supreme Court cautioned thus:
“Care must be taken to ensure that what is supposed to be a machinery of justice should not grind so slowly that persons who stand to benefit by the delay will succeed in converting the machinery of justice to that of in justice.”
It is my reasoning that the right to speedy trial with minimum delay is synonymous with fair trial, as a prerequisite for dispensation of criminal justice under the law. Therefore, it approximates to grave injustice and flagrant violation of human rights to subject an accused to a long and interminable trial.
4.3 The Effect on the Defence of the Accused Person
The judicial stand that it is better for 99 criminals to go unpunished than for one innocent person to be punished is one of the most human reasoning on record.13 In this light, the 1999 constitution (as amended) in order for an accused person to have adequate facilities for his defense provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.14 Also by virtue of section 36(6) of the constitution, every person who is charged with a criminal offence shall be entitled to:
a. Be informed promptly in the language that he understands and in details of the nature of the offence;
b. Be given adequate time and facilities for the preparation of his defence;
c. Defend himself in person or by legal practitioners of his own choice;
d. Examine, in person or by his legal practitioner, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carryout the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution, and…
The above fundamental constitutional provisions are targeted towards ensuring that a suspect or an accused person is accorded every deserved opportunity to defend himself and prove his innocence before any court or tribunal in this country. Unfortunately, these provisions have been honoured more in breach through the practice of holding charge.
Among the above paragraphs of section 36 (6), paragraph (b) is the most abused or violated. This is because a situation where the accused person is brought before a court lacking jurisdiction on a charge sheet which will be read to him without his plea nor bail granted him, but rather remanded in prison custody cannot by any imagination grant that person adequate time and facilities for the preparation of his defense at the appropriate court during his trial.
The corollary of this subjection is eventual plea of guilt or poor defense, if any, by or on behalf of the accused person. And this might end in his undeserved conviction.
Furthermore, the right of an accuse person to examine in person or by a legal practitioner of his choice, the witnesses called by the prosecution before any court or tribunal and also to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution, envisages an opportunity for the accused to collect evidence both documentary, real and oral as well as to identify his witness(es) for attendance. But it is obvious that an accuse person who is remanded in prison custody under a dehumanizing conditions has no time to look for witness(es), let alone choosing a lawyer that will properly defend or assist him. The end product of the above scenario is the eventual conviction and sentence of the accused. Little wonder Samuel Dash15 articulated thus:
“Without the assistance of counsel, the defendant is practically powerless to challenge the prosecution. It is the lesson of human experience that even in the case of the most well intentioned prosecutors, the absence of such a challenge can result in carelessness and failure to review the evidence and properly prepare the case, which makes it easier to convict the innocent.”16
The importance of the assistance of counsel to an accused person was also underscored by David Fellman in the following words:
“Without the assistance of counsel, most persons accused of crimes are not likely to have an adequate defence. A defendant needs a lawyer as urgently as a sick man needs a doctor and in many instances, more urgently, for while nature often heals the sick without outside aid it seems to have little concern for the plight of the accused.”17
From the foregoing, it is my humble opinion that a situation where the accused is moved directly to a court room from prison custody for trial without giving the chance to take advantage of the constitutional provisions, on ground of holding him charge is condemnable in its entirety and the courts must stand out against this amorphous practice by the police. The reason is because trials cannot be regarded as ‘fair’ if defendants lack legal representation and therefore unable to participate at the trial on an equal footing with the prosecution. Even where in the discretion of the court, the accused is not entitled to bail owing to the circumstances surrounding his case, these rights as provided by the constitution are fundamental to the accused as a human being and for the interest of fair trial, the court should starve off any dangerous or unwarranted or stealthy encroachments.
Earlier, Justice Kayode Eso, J. S. C., also stated on the role of the courts as follows:
…it is the function of judges to keep the law alive in motion and to make it progressive for the purpose of arriving at the end of justice without being inhibited by technicalities to find every conceivable and acceptable way of avoiding narrowness that would spell injustice. Short of a judge being a legislator, a judge must possess an aggressive stance in interpreting the law.18
4.4 THE EFFECT ON NIGERIA PRISON
The prison inmates consist of both those awaiting trial and those convicted of their various offences. However, in most cases, as we can see later, the awaiting trial inmates in prisons outnumber those already convicted. We must also note that those awaiting trial are and remain innocent until they are convicted by a court or tribunal for committing an offence under the law.
According to Showunmi,19 an awaiting trial person (ATP) is someone remanded by an order of a court or tribunal in prison custody in order to ensure his availability before the detaining authority in due course for the hearing of his case to prove or establish his innocence or quality. Awaiting trial persons constitute a significant percentage of the Nigerian prison population. And many factors are responsible for it, among which is the police practice of holding charge.
Holding charge is one of the causes of the large number of awaiting trial inmates in Nigerian prisons and as such a major source of congestion of prisons. Over congestion of prisons in Nigeria is extremely acute. Both convicted prisoners and those awaiting trial are all dumped together in the same cells. The greater proportions of prisoners in Nigerian prisons are those awaiting trial, those remanded by the orders of courts.20 Those remanded by the orders of the courts accounted for about sixty-seven percent of prison population. Due to mainly administrative reasons such as lack of transportation to take the prisoners to court, absence of counsel, unwillingness of magistrates to go on with the case because of lack of jurisdiction, many of these remand prisoner remain in prison for prolonged period of time without trial.21 Consequently, the prisoners are incarcerated indefinitely under harsh and inhuman conditions even where they have not been found guilty.22
The Civil Liberties Organization has described the condition of Nigerian prisons in the following words:
“Behind the wall of practically every prison in Nigeria is a slum where men and women too literally live on top of each other. From prison to prison the housing conditions consistently reveal themselves to be wretched and in human.”23
In line with the above observation, Hon. Justice Alhassan Idoko of the blessed memory had in 1981 said24
They reveal a complete picture of dehumanizing conditions. Convicts and even those awaiting trial are caged and cramped together in cells meant for either only one person or fewer persons than are hoarded there. The sloppings (sic) and stench all around defy solution and the considerable regimentation throughout the period of the prison sentence has less of a therapeutic value.
The report given by Civil Liberties Organization (CLO) on the sanitary conditions of the Nigerian prisons is relevant in this context. The report states:
The state of sanitation and hygiene in the prisons was quite appalling. Water shortage was acute. Inmates were usually unable to take their baths for several days and had even less access to water for washing clothes. Toiletries were a luxury. Bed bugs, cockroaches, rats and mosquitoes bred freely. Ventilation was poor because most cells either had no window at all or their windows were sealed in an attempt to prevent prison escapes.25
Suffice to note at this juncture that different actors fuel the holding charge phenomenon in the criminal justice system in Nigeria notably, the police, the judiciary and the prisons. The police have the statutory function of effecting arrest of suspects, initiating prosecution, conducting investigation and arraigning suspects in appropriate courts of law. Admittedly, the police force is handicapped by numerous logistic constrains such as inadequacy of trained, dedicated and well-motivated officers. The inadequacy of office accommodation, stationary, transport and communication facilities further limits their efficiency. Transfer of officers handling a case and the lack of transportation facilities to bring prisoners to court constitute additional constraints. The ministries of justice are similarly faced with the problems of acute shortage of dedicated, honest and well-trained state counsel thus necessitating calls for adjournment of cases. The courts have to grapple with inadequacy of judges and magistrates, logistic constrains such as few secretarial staff, manual recording of court proceedings and insufficient library resources for research, corruptive tendencies and poor conditions of service. However, frequent resort to imprisonment as sentencing option even for the most minor offences, under-utilization of the powers of prerogative of mercy and bail are often cited as additional reasons for delays in conclusion of cases by the courts. The overall implication is to prolong the stay of detainees in prison awaiting trial.
Prison congestion is partly responsible for the seemingly insufficient infrastructural amenities in Nigerian prisons. Prison facilities are stretched to the limits by the unchecked population explosion.26 Furthermore, congestion in the prisons results to failure on the part of the authorities to attempt classification of prisoners as required by local and international rules.27 Thus, the former director of the Nigerian Prison Service, Mr. Lily Ojo admitted that there is a problem when he said:
“The problem of overcrowding has not only imposed strains on prison management but has rendered the concept of classification meaningless in our prisons.”28
Perhaps, one obvious cause of prison and police cell congestion is arbitrary arrests and detention on ground of holding charge under discussion. Recently, it has been shown that out of the total of 45,000 inmates in the Nigerian prison about 30,000 are awaiting trail which has made the prisons to be congested.29 For instance, the Ikoyi prisons was designed to accommodate 400 inmates but as at today there are about 1,600 inmates in the prison, while some have spent up to 10 years without trial and others have spent 5 to 19 years on trial.30 Also, Abakaliki prisons have been rated to have the total number of 583 inmates, with awaiting trial persons of 413, which is a 70% 31 awaiting trial inmate. Finally, the writer’s personal visit to Abakaliki prison on 6th June, 2013, showed that only 47 prisoners were convicted while 694 are awaiting trial persons, notwithstanding that the maximum capacity of the prison is just 387.
As regard congestion in police cells, there is no gain saying the fact that police lack adequate cells to detain suspects. While prisons congestion is an issue that constantly attracts attention in Nigerian criminal justice discourse, little or no attention is paid to the congestion of police cells and the ways and manners in which the police deal with the congestion.
Thus, Jiti Ogunye32 observed that owing to poor crime intelligence gathering, police officers usually commence their investigation after affecting arrests, and this accounts for congestion in police cells. He went further to state that arrest are not made when investigation is at an advanced stage, rather, arrests are made at the beginning of investigation by the police and advised that pre-arrest intelligence can help in limiting the number of days in which criminal suspects are kept in police custody.
4.5 THE EFFECT OF HOLDING CHARGE ON FUNDAMENTAL HUMAN RIGHTS
As I have noted earlier, Nigerian law33 is replete with provisions guaranteeing the rights of an accused person before, during and after trial in a court of law. For instance, the constitution provides that a person in the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality,34 that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.35 Also that every person who is charged with a criminal offence shall be entitled to be informed in the language that he understands and in detail the nature of the offence, be given adequate time and facilities for the preparation of his defence and to defend himself in person or by legal practitioner of his own choice.36
The importance of the rights of an accused person has also been universally recognized and subsequently incorporated into our laws.37 The efficacy and applicability of the African Charter on Human and Peoples’ Rights have been acknowledged by our courts in several cases.38 Thus, Article 7 of the Charter provides:
1. Every individual shall have the right to have his case heard. This comprises.
a. The right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
b. The right to be presumed innocent until proved guilty by a competent court or tribunal;
c. The right to defence, including the right to be defended by counsel of his choice;
d. The right to be tried within a reasonable time by an impartial court or tribunal.
From the foregoing, it goes without saying the fact that a detainee is not rendered “rightness” by reason only of an allegation of a crime against him. This is because suspects are not convicts, they are neither to be viewed nor treated as such. Thus, the Nigerian criminal procedure Act39 provides that any person who is arrested shall be taken with all reasonable dispatch to a police station or other place for the reception of arrested persons, and shall without delay be informed of the charge against him. Any such person while in custody shall be given reasonable facilities for obtaining legal advice, taking steps to furnish bail, and otherwise making arrangements for his defence or release.40 In the Northern States of Nigeria, the state of affairs under the criminal procedure code41 is similar but clearer. According to section 129 (1) of the code, wherever it appear that an investigation… cannot be completed within 24 hours of the arrival of an accused or suspected person at the police station the officer in charge of the police station, shall release or discharge him or send him as soon as practicable to the nearest court competent to take cognizance of the offence.
The sum total of this and preceding prescriptions is the proper treatment of detainee. From the language of the law, any delay occasioned by the inability of the state to bring the detainee to trial within a reasonable time may, depending on the circumstances, cause his release.42
It is unfortunate to observe that notwithstanding the glittering provisions of Nigerian law on the speedy administration of criminal justice in Nigeria, the reality is that the law is honored more in the breach than in the observance. Numerous cases abound on delays:
a. From the arrest of a suspect to the institution of criminal proceedings against him/her.43
b. From the institution of criminal proceedings to the commencement of hearing of the evidence of witnesses;44
c. From the commencement of hearing to the conclusion of finial addresses;45
d. From final addresses to the delivery of judgment;46 and
e. From the delivery of judgment by the trial court to the determination of an appeal against the decision.47
It will suffice to say that the process whereby the accused person is denied a speedy trial for a criminal allegation leveled against him is a breach of the constitutional provision that provides for the accused person fair trial within a reasonable time. The trial within a reasonable time is more germane considering the fact that the accused person is still presumed innocent until the contrary is proved.48
The provision of presumption of innocence under Nigerian law can only be efficacious if accused persons awaiting trial are admitted to bail. In the case of Saidu V. State,49 Obaseki J. S. C. (as he then was) held as follows:
It does not give the court any joy to see offenders escape the penalty they richly deserve but until they are proved under the appropriate law in our law court, they are entitled to walk about in our streets and tread the Nigerian soil and breath the Nigeria air as frees and innocent men and women.
In the case of Chief Pat Enwerem v. Commissioner of Police,50 the court of appeal (Port-Harcourt Division) condemned the practice of holding charge syndrome and stated that it is unknown to Nigerian law and an accused person detained there under is entitled to be released on bail within a reasonable time before trial more so in non-capital offence,
In the above case the appellant on allegation of murder and unlawful killing of a member of Abia State House of Assembly, on application under the Fundamental Rights (Enforcement Procedure Rules), the appellant was released on bail by the High Court of Cross River State. Later, the police re-arrested the appellant and arraigned him before Isuikwuato magistrate court on a charge of murder. The learned magistrate declined jurisdiction yet remanded the accused person/appellant at Ishikwuato police station. An application to the High Court for bail was refused. On appeal to the Court of Appeal, the Court held:
Happily, by our constitution and government, this country cannot operate a ‘Police state’… Want of jurisdiction on the part of the magistrate… does not justify appellant’s prolonged incarceration … In a free country like ours the action of the law enforcement Agencies concerned with this matter was barbaric, a contravention of section 31(1) (a), 32 and 6 (6) (a) of the constitution.51
Also, in Mohammed & Ors V. C.O.P 52, the appellants were arraigned before a chief magistrate’s court in Zaria on a first information report in which they were alleged to have committed culpable homicide punishable with death contrary to section 221 of the Penal Code. Upon a motion for bail on behalf of the appellants, they were released. After about seven months, the magistrate revoked the bail and remanded appellants in prison custody. The appellants subsequently filed an ex parte motion in the high court seeking inter alia the enforcement of their fundamental rights. The application was refused. On appeal, the Court of Appeal held that an accused was entitled to the protection of his personal liberty if he was in prison custody or detention following an accusation of the commission of an offence by invoking section 32 of the 1979 constitution.
The facts in Emezue v. Okolo & Ors53 suggest that detention even for a limited period may be unlawful. The appellant claimed against the respondents the sum of N2,000 as damages for unlawful detention in the police station at Umuahia. The respondents who were all police officers applied to the court for an order dismissing appellant’s claims on the ground that it disclosed no cause of action. That application was granted. On appeal to the Supreme Court it was held inter alia that the appellant having alleged that he was detained for about 48 hours, his statement of claim disclosed a cause of action for wrongful detention with respect to the excess. It is submitted that these pronouncements favours constitutionalism and the enforcement of rights.
Therefore, any protracted prosecutions and undue remand orders even where there are sufficient grounds to grant the accused bail is nothing but a disguised holding charge strategy targeted at victimizing suspects especially those that refused to grease the palms of unscrupulous officers. This is a serous affront on the suspects constitutionally guaranteed right to personal liberty, far hearing, presumption of innocence, fair trial etc.
The terrible effects of pre-trial incarceration have been eloquently stated in the case of Hartage v. Hendric54 as follows:
The imprisonment of an accused prior to determination of guilt is a rather awesome thing. It cost the tax payers tremendous sums of money; it deprives the affected individual of his most precious freedom and liberty; it deprives him of his ability to support himself and his family; it quite possibly cost him his job; it restricts his ability to participate in his own defence; it subjects him to the dehumanization of prison; it separates him from his family and without trial it cast over him aura of criminality and guilt.
It has been held that once a court observed that it has no jurisdiction to entertain a matter, the proper order to make is to strike out the case or charge and not to remand the suspect because any subsequent proceeding or order made by the court is a nullity and consequently void.55
It is axiomatic that the degree of liberty obtainable in any society depends ultimately on the attitude of the court. Therefore, the court should interpret any law sanctioning holding charge narrowly, strictly and restrictively against the party seeking to rely on it and more liberally and sympathetically in favour of the accused person who is being deprived of the accused prison who is being deprived of his constitutional right upon reliance on the state statute.56
According to Glanville Williams, the manner of administration of criminal justice depends, “too much on the decision of the Police and other prosecutors taken in private and without effective control”.57 The police often “over charge, perhaps because they are not sure of the facts and wish to preserve all their options”.58 This is true of most of the police prosecutors. The only purpose is to halt expeditious prosecution of criminal cases. In view of this, court needs to be less willing to exercise its powers in favour of the prosecution in such circumstances. Rather, the court should courageously strike out such cases for want of jurisdiction59.
No doubts, capital offences are vile and punishment for such offences is of necessity the mark of society’s revulsion. Yet only the guilty should be punished. The slightest punishment of presumed innocent citizen under the guise of a Holding charge is of greater severity than the death sentence of a murderer. It is submitted that the least toleration of improper police practice is worse evil than the occasional escape of a criminal. The view is that the court cannot aid the police to adopt unconstitutional means to discharge its statutory duties.60
The following observations have been made in this research work which dealt with the challenges of holding charge practice by the police in the administration of criminal justice in Nigeria.
Firstly, the police no doubt are empowered by statutes apart from their general duties of preservation of Law and order, protection of life and property, enforcement of law and order, detecting and prevention of crimes, also to prosecute criminal cases in court. Infact, the prosecution powers of the police in all courts in Nigeria have gained judicial validation in the case of Olusemo V. Commissioner of Police1. And majority of these prosecutions are carried out or at least started by the police at the Magistrate Court. But the police more often than not drag suspects to magistrate court on indictable offences to secure remand order before proceeding on investigation. This is notwithstanding that the magistrate lacks jurisdiction on those offences. Through the order of the magistrate such an accused or suspect is remanded in prison till God knows when.
However, the constitution of Nigeria grants the suspect or accused person certain rights. For instance, the accused is presumed innocent until proven guilty. He or she is entitled to be represented by a counsel of his or her choice. He or she has a right to bail except in few circumstances where bail is not allowed, because of the gravity of the offence or for other reasonable cause. The accused has a right to speedy trial because of the cardinal principle of law that ‘justice delayed is justice denied’.
Thus, it is my humble opinion that this practice by the police and any law sanctioning it is illegal and unconstitutional. As it offend the provisions of the constitution.2
Secondly, by using the instrument of holding charge, the police usually keep the suspect in detention, whilst evidence of guilt are sought. This practice is the main cause of congestion in Nigerian prisons. Many people that are not supposed to be in prison are there because of a failure of investigation. As a corollary, this has increased the government spending in equipping and maintaining little amenities in the prisons.
Finally, the research work discussed the judgment of the Supreme Court in the case of Mrs. E.A Lufadeju and Anor.V. Evangelist Bayo Johnson3, wherein the court held that the provision of Section 236(3) of the Criminal Procedure Law. Cap. 33, vol. 2 Laws of Lagos State 1994 - 4 did not conflict with the provisions of the constitution. And thereby held valid a remand order made by Magistrate Court pursuant to that section, even though the magistrate court lacked jurisdiction to entertain the substantive matter.
During the examination of this case, I observed that the apex Court based its judgment on no point of law. The court was in want of where to lay its hand and finally introduced what it called remand proceedings which the Court per Niki Tobi said that “Although remand proceedings is not set out in the Criminal Procedure Law, it is known that the charge is not read to the accused and therefore no plea taken…” What the court was saying is that apart from the arraignment of the suspect or an accused, which is the genesis of criminal trial, a suspect could also be brought to the court for the purpose of conducting remand proceedings, and in the proceedings, the magistrate Court will be faced with two options, one to remand an accused or to grant bail to him.
In my humble opinion, this position is legally wrong because in a capital offence where the magistrate lacked the requisite jurisdiction, the law is that it cannot make any order whatsoever. Again the remand proceeding is not provided for either in the constitution or in any criminal procedure enactment to the best of my knowledge except in Lagos State.
A forensic insight into the case shows that the apex court was only trying to protect the bench. The court, was angry over the fact that Mrs. Lufadeju, the appellant, and the magistrate who made the order of remand in performance of her judicial functions was sued personally for damages over what she did in her official capacity. The respondent was asking for damages of N5,000.000.00 (five million naira) from the appellant for illegal detention. Thus, the sentiment to protect the bench was considered.
Obviously, if the action were maintained against the Attorney General of Lagos state or even in the name of the Lagos state government, the apex court would not have held that such order made by the Magistrate Court as valid. This is because in cases decided by these justices when they were at the Court of Appeal, they have held that such an order made by the magistrate court when it had no jurisdiction is a nullity, more especially when the order was made and will result to an unwarranted denial of an accused right to liberty. Thus, in Anakwe v. C.O.P5 Niki Tobi JSC while in the Court of Appeal held:
“The function of the prosecution is not to rush a charge to a magistrate court, a court which has no jurisdiction to entertain a matter such as to try murder cases, any play for time while investigation is in progress. I have said it before, and I will say it again that the uniquely police phraseology of a holding charge is not known to our criminal law and jurisprudence. It is either a charge or not. There is nothing like a holding charge”.
This statement was made in response to the order of remand of the magistrate court to detain the appellant pending the completion of investigation by the police. This is the same thing with what happened in Lufadeju’s case, an indefinite order of remand for police to investigate. With due respect, that too amount to a holding charge, which the learned justice said is not known to our criminal law and jurisprudence.
The holding charge practice represents the single most critical challenge for criminal justice reforms in Nigeria. It is therefore imperative for any government desirous of lasting change to tackle the problem. Accordingly, I hereby recommend the following reform initiatives to eliminate the menace of holding charge from Nigeria’s criminal justice system.
1. State Legislatures: States’ legislative houses in Nigeria should endeavour to initiate the process of reform of their respective state pretrial detention laws. Thus, the Borno State experience is worthy of emulation, where the former Chief Judge, Hon. Justice K.M Kolo, worked with the committee on Administration of Justice to discard the holding charge from the state’s criminal justice system. Accordingly, magistrate courts in Borno State are no longer used as remanding centre for persons accused of capital offences. All capital offences are now at the first instance filled before a high court judge…6 Also, recently the Chief Justice of Ebonyi State Justice alloy Nwakwo declared on 8th of November, 2013 the abolition of holding charge practice in Ebonyi State Legal system. This was made during the marking of the 2013/2014 legal year in Ebonyi State. Henceforth in Ebonyi State, no Awaiting Trial Person shall stay more than 120 days in detention. I do recommend that other state government should emulate this good gesture, to enhance fair criminal justice administration.
2. Government (Federal and State): The Government is expected to play a leading and perhaps dominant role in curbing holding charge syndrome. It is my submission that the prosperity of any nation is not measured in monetary terms alone. At the global level, the observance and protection of international human rights norms are fast becoming the parameter for accepting a nation as a member of comity of nations. Therefore, since the members of the police force are more involved in crime investigation and detection, the state should consider seriously, the imperativeness of reactivating and equipping the force. The police authorities have been blamed for a large number of awaiting trial men in the nation’s prisons in that they often fail to complete investigations on time, In the absence of the requisite tools of trade for the police and improved condition of service, the ‘holding charge” may tarry in Nigeria for long. To perform effectively and efficiently therefore, the government should, as a matter of urgency attend to the diverse problems confronting the police.
Also, the Federal Government should pay greater attention to the prisons and prisoners. Prisons must be made to rehabilitate and reform inmates. Basic recreational and vocational facilities should be provided in all prison. Improvement in the quality and quantity of food provided for prisoners is necessary just as improvement in prison infrastructure and facilities.
Finally, the Federal government should revitalize, re-organise and re-invigorate the Legal Aid Scheme to provide free legal representation to indigent citizens with a view to reducing incidences of long-term incarceration on account of absence of legal representation.
3. The Bar and Bench: The Bar and Bench, as partners in progress in the administration of justice, must re-dedicate themselves to promoting justice and fairness. Accordingly, magistrates must refrain form either entertaining maters over which they lack jurisdiction or indeed making consequential orders thereon. The Bar, for its part, must take more proactive steps in the direction of pro-bono cases, and public interest litigation. Interestingly, the 2009 Fundamental Human Rights (Enforcement Procedure) Rules have relaxed the issue of locus standi.
Also, Chief Judges should intensify jail delivery exercises in all the states. This will ensure that the prisons are rid off of inmates without plausible grounds of incarceration and guarantee some sanity in the prison system. Thus, the jail delivery exercise embarked upon by Ebonyi State Chief Judge, Justice Alloy Nwankwo on 24th-25th of July, 2013, which led to the release of fifty-five (55) inmates is commendable.7
4. Ministries of Justice (Federal and State): The office of the Director of Public Prosecutions (DPP) should be made independent of the civil service bureaucracy to enhance efficiency. I suggest the reinforcement of the professional staff of the office of the DPP. This, it is hoped will engender timely rendering of legal advice on case files referred to them by the police for advice. It is worth emphasizing however, that the government must be prepared to offer better incentives to encourage lawyers to work in the ministries of justice.
5. The Police: The Police force should intensify efforts at human rights education for officers and men. Police officers must also stick to their traditional functions with a bias in favour of timely investigation and prosecution where desirable.
Prosecution of cases within the police force should be made the exclusive preserve of trained legal practitioners. This should provide some leverage for accused persons in the sense that reasonable standards of respect for fundamental rights and freedoms will be expected. Mr. Fola Anthur-Worrey, the former Attorney General of Lagos State had suggested that the legal department of the Police Force should be better equipped with seasoned lawyers who can then render advice on some case files8. For it is not unusual for the police, in holding or remand charges, to inform the magistrate court of non-receipt of legal advice and thus, request for an adjournment. In this situation it is the suspect whose incarceration is prolonged that ultimately suffers.
As a corollary to the above, I humbly recommend that the Magistrate court should be clothed with jurisdiction to entertain capital offences so that they can have power both to remand and to grant bail when necessary. We all know that what usually happens is that immediately the accused is brought to the court the jurisdiction of such court becomes an issue. We all see that all efforts to deter the police form taking an accused person or suspect to the magistrate court when it lacked jurisdiction have not worked. So, if the jurisdiction of the magistrate court is increased, it cannot only issue order or remand, but also grant bail. This is because, now the magistrate cannot grant bail nor issue order of remand because it has jurisdiction at all, and once the police bring the suspect the only option left for the court are the once it has no jurisdiction, but it must do one to avoid this dilemma,, it is necessary that the jurisdiction of the court be increased.
It must be emphasis that to observe the constitutionally guaranteed right to personal liberty and other human rights, the magistrate must not hesitate in releasing accused persons when they have been held beyond the constitutionally stipulated time frame.
6. The police should be encouraged to speed up investigation of case and consequently more personnel should be employed in these directions for the smooth administration of justice. There is the need for well trained investigating personnel.
7. Periodic legal training of personnel involved in prosecution of cases in their employment should be undertaken regularly.
8. There should be periodic review of cases handled by magistrate and those found wanting in abusing their powers can be sanctioned. Sanctions can involve reprimand, suspension, removal and dismissal depending on the gravity of the offences. This periodic exercise should also apply to men of the police force who often always has the duty of investigating and starting the locomotive wheel of the criminal justice system.
The police institution is therefore, a sieving institution. It sieves, using the barometer of “probable cause or Reasonable suspicion” to decide whether the suspect should enter the second criminal justice institution or not. The police institution more often than not is criticized for its lackluster role in sieving suspects. Evidence gathering is untidy and almost always the police are not willing to let a suspect go, even when the scale of probable or reasonable cause tilts in favor of the suspect.
It should be noted that the prison personnel’s are not exempted form this scrutiny. It is well known that well over 65-70% of prison population in Nigeria falls within the class of awaiting trial persons (ATPs). Any person that is conversant with Nigerian prisons know that this class of people suffer more than convicts. They are subjected to unimaginable indignities, even when they have not been convicted of any offence.
9. There is need for workshops, seminars, conferences to be held for the three cardinal institutions in the administration of criminal justice system in Nigeria, viz: the Police, Court, and Prison to enable them avail themselves and update their knowledge of current trends in the administration of criminal justice especially when it involves the fundamental human rights of the suspect or accused person.
10. Civil Society organizations: civil society organizations have very crucial roles to play in the fight against the menace of holding charges. The key role is that of education and enlightenment. Majority of our people do not have access to basic human rights education and are therefore unable to appreciate the intricate connection between respect for rights and good governance. It is therefore for civil society groups to take the initiative to provide quality human rights education to citizens.
Another possibility exists in the area of litigation to test the effectiveness of legislative and executive actions aimed at eliminating the scourge of holding charge. Civil society groups could assist with getting the cases to courts to facilitate the process.
It is my expectation that the recommendations in this work will be adhered to, so that the concept of ‘remand proceeding and holding charge’ shall be discouraged. This is because history beckons on the present generation of leaders at all levels in the country to decongest the prisons, offer a ray of hope to an otherwise hopeless generations of prisoners, improve the machinery of criminal justice and bequeath an enduring legacy of humane prison and criminal justice system to the next generation.
In this research project, I have attempted to examine the challenge of holding charge practice to the administration of criminal justice in Nigeria. The flimsy reasons adopted to justify the practice, its illegality, and how the practice has greatly affected the constitutional rights of suspects charged with criminal offences.
The research went on to consider the constitutional rights of suspect or accused persons. And also some of the factors that militate against the Nigerian police force in discharging their statutory duties, especially as regard the area of prompt investigation and prosecution of cases.
The syndrome of holding charge which contributes greatly in the falling standard in the Administration of Criminal Justice in Nigeria is an illegal charge, unknown to the constitution. Therefore the sentimental judgment of the Nigerian Supreme Court in Lufadeju’s case should be reconsidered. Although the law lacks the precision and exactness of science, yet its scientific development is one exercise from precedent to precedent. It is my humble submission that the approval of remand proceeding or holding charge by the apex court is unconstitutional.
It is my hope that the suggestions I proffered in this research work will in no small measure assist and improve the administration of criminal justice in Nigeria and the menace of the holding charge syndrome as presently experienced will be a tale of the past.
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1 Per Galadima JCA in Ogor v. Kolawole (1985)6 NCLR 534 at 540.
2 (1993) 7 NWLR (pt. 303) p. 49. at 107.
3 Section 214 of the 1999 Constitution (as amended)
4 Section 4, Police Act, Cap P. 19 L.F.N, 2004,
5 Waldron, et al, The Criminal Justice System: An Introduction p. 44.
6 Section 23 of the Police Act. Op.cit
7 Section 78(a) Criminal Procedure Act Cap 41 LFN 2004 (hereinafter referred to as C.P.A).
8 Ibid, S. 78(b)
9 Fidelis Nwadialo, The Criminal Procedure of the Southern States of Nigeria (2nd ed.) 1976 at 117
10 Section 17 of the C.P.A
11 Section 18 of the C.P.A
12 Section 35(5) of the 1999 constitution (as amended).
13 Amadi G.O.S. “Police Powers in Nigeria”. (A fro-Orbis Publishing Co. Ltd.. Nsukka. 2000)p. 198.
14 I am using “inferior law” advisedly. The Criminal Procedure Law of Lagos State is inferior to the
constitution of Nigeria which provides for right to personal liberty and fair healing relevant to this reflection
15  8 NWLR (pt. 1037) 535
16 C.A. Igwe, A legal Review of the Administration of criminal Justice in the Magistrate Court of Ebonyi
State (Ebonyi State University Law Journal, 2011] vol. 4 No. 1. See also Frank Agbedo, Rights of Suspects
and Accused Persons under Nigerian Criminal Law (Lagos, Crown Law Publication, 2009) P. 253.
17 Nnamani, J.S.C. “Contemporary Nigeria and the Practice of Law” p. 8, Paper Presented at the 1990 Annual
Conference of the Nigeria Bar Association, held in Benin from 27-31 August, 1990.
18 439 P. A.,584 at 601.
19 Dele Peters Nigerian Current Legal Problems, 1996-1998) vol. 4 and 5 p. 258
20 Ogor and Ors V. Kalowole and Anor (supra)
21 Anaekwe v. C.O.P (1996) 3 NWLR (pt. 436) 330
22 Ibid at p. 332
23 www. Hurilaws.com
24 George O.S. A, Op cit. p.13
25 Section 36(5) of the 1999 constitution (as amended)
26 As at early September 2003, the number of ATPS hovered between 55% and 75% of the total population of
all those incarcerated in our prisons. Out of 40,082 inmates in all of Nigeria’s prisons, more than half were awaiting trial. See Uwais M; “The Prisons of Tomorrow: a Civil Society Perspective” paper
presented at the 3rd summit of stake holders on the Administration of Justice in Lagos on 17th June 2004. However, by July 2004, the number of ATPs reached 63% mark. According to a Prisons Assessment Report by the Controller General of the Nigerian Prisons Service, Mr. Abraham Akpe, submitted to the Committee on Prison Decongestion, 25,000 Prison Inmates out of a total prison population of 40, 447 are awaiting trial. Source: Daily Independent Newspaper of Tuesday, July 20,2004, P.E6.
27 Adeyemi A.A, Penal Reform in Nigeria: paper submitted for publication in a new Judicial Order. Essays in
Honour of Justice Akinola Aguda (unpublished) p.1
29 Socio-Economic Burden of Imprisonment: paper presented at the 1st Nigerian Prison Service /Civil Society
Dialogue on the State of Nigerian Prisons held at Abuja on 12th-14th February, 2002.
30 See C.A Igwe. Op cit. p. 280
31 See Chapter 4 of the 1999 Constitution (as amended).
32 See Anakwe v. C.O.P (1996) 2 NWLR (pt. 436); Chinemelu v. C.O.P (1993) 4 NWLR (pt. 390); Onagaruwa
v. The State (1937) NWLR (pt.303) 149’ Enwere v. C.O.P (1993) 6 NWLR (pt. 299) 133
35 Criminal Justice Reform and Challenge of Holding Charge by Olisa Agbakaoba SAN. Delivered by
HURILAWS p. 9.
1 Such as the Criminal Procedure Act, and the Criminal Procedure Code.
2 Supra at P. 539
3 (1993) 6NWLR (Pt.299) 333 at341 Paragraph G.
4 See Section 35 (4) of the 1999 Constitution (as amended).
5 Towards a Humane Prison System. Submission by the Civil Liberties Organization to the Nigerian Human
Rights Commission, July 1996; in Tabiu, M. (ed.) (1998), Administration of Criminal Justice and Human
Rights in Nigeria, Chapter Five, PP. 64-74 at P. 67.
6 Black’s Law Dictionary, West Publishing co; Texas 9th ed., 2009, P. 800.
7 See Anekwe v. C.O.P ( supra) at p.332.
8 Dr. Okpara Okpara, Human Rights Law and Practice in Nigeria. (Chenglo Ltd. Enugu, 2005.) p. 164.
9 D. Peter Op. cit p. 256.
11 Plea to a charge is an essential ingredient of a trial. See Achene v. The State (1991) 8 NWLR 424;
Erekanure v. The State (1993) 8 NWLR 385 and Olawoye and 4 ors v. C.O.P (2006) 2NWLR (Pt 965) 427
and p. 442 paragraph G-H.
12 For various grades and criminal jurisdiction of Magistrates’ Courts in Nigeria, See generally, Toyin
Doherty: Criminal Procedure in Nigeria.Blackstone Press Limited.1990
13 Criminal Code Act, Cap. C.38, L.F.N, 2004. S 37 (1).
14 Ibid, S. 316
15 Ibid, S. 38
16 Robbery and Firearms (Special provisions) Act. Cap R. II L.F.N 2004, S.I (2). Cf. Criminal code, S. 402.
17 Remand orders are the usual orders made by the magistrate in a holding charge proceedings, though where
applicable, the suspect may be admitted to bail. This is not just because the crimes involved are capital in
nature but because the magistrate court concerned has neither jurisdiction to try the accused nor grant bail to
him pending trial at the proper forum. See Fidelis Nwadiaolo, The Criminal Procedure of the Southern
States of Nigeria (2nd ed). And see also Toyin Doherty, Criminal Procedure in Nigeria, Blackstone Press
18 Dele P., Op.cit p. 258.
19 Ogor & ors v. Kolawole and Anor (supra).
20 (2006) I NWLR ((Pt.962) 507 at p. 765.
21 Section 35 (4) and (5) of the 1999 Constitution (as amended) see also H.P. Faga: “Right to Liberty:
Emerging Issues in the Pretrial Process in Nigeria (2006) Abakaliki Bar Journal vol. I pp. 170-171.
22 See O. Onagoruwa, “The Nigerian Police, Rule of Law and Our constitutional Order, 2007.
23 See Annual Report, 1994, A Civil Liberties Organization’s Report on the State of Human Right in Nigeria. P. 16
24 George O.S. Amadi, op.cit p. 198.
25 C. Okaro; The Scope and Impact of Police Power of Prosecution in the Administration of Criminal Justice, in Solomon
E.A et al (ed.) Policing Nigeria in the 21st Century, (Spectra Books limited, 2007) p. 114.
26 Section 118 C.P.A, S. 35 (7) of the 1999 Constitution (as amended).
27 (1979) I L.R.N 236
28 The Guardian Newspaper on Today, July 15, 2004 p. 2
29 Prof. Jadesola O.A; Introduction to the Constitution of the Federal Republic of Nigeria (Lagos, M.J
Publisher, 2004) p.80.
30 Cap 33 vol. 3, Laws of Lagos State, 1994 (Now S. 264 of the Criminal Justice Administration (Lagos State,
2011.,hereinafter referred to as C J.A)
33 (2007) LPELR-CA/B/262/05.
35 1999 Constitution of the Federal Republic of Nigeria (as amended)
36 G.O.S. Amadi Op. cit p. 198
37 Under section 35(6) of the constitution
38 False imprisonment is any detention, bodily restraint, denial of personal liberty of freedom of movement of a
person in any place and in any form without lawful justification. See Ese M. Law of Tort, (Lagos, Princeton
Publishing Co, 2008) p. 132
39 Dr. Okpara Okpara Op.cit p. 155
40 Op.cit p. 171
41 Supra p. 555
42 See also Asakitikpi v. The State (1993) 5 NWLR (pt. 296) 641, where is was held that a criminal trial
commence with the arraignment of the accused person and arraignment in turn consist of the charging of the
accused or reading over the charge to the accused person and taking his plea therein.
45 see C.A Igwe Op. cit p. 277
47 R.A.C. E; Achara, Justice According to law and Due Process:A Glance at Two of Justice Akpbio’s
Decisions. Unizik Law Journal vol. 4 No. 1, p. 276
48 Op. Cit P. 263
49 No 401 1979.
50 Cap. 32 laws of Lagos State
51 See Criminal Procedure Law vol. 2 Laws of Lagos State, 1994(Now Criminal Justice Administration, Lagos
52 Now section 264(1) of the C.J.A
53 See D. Peter. Op.cit. P. 264.
54 See generally, Akinyede, G.B.A.,” The Bar, The Police and The Judiciary” (1958) Nigerian Law, Journal, vol. 1
No. 1. Johnson Adeyemi, “Nigerian Police. The Limit of Oppression”. The Legal Practitioners Review vol. 1,
No. 2, and see also O. Ohonbamu .The Dilemma of Police Organization Under a Federal System: The Nigerian
Example (1972) Nigerian Law Journal vol. 6
55 D. peter Op. cit. 257.
56 The salaries and general conditions of service of State Attorneys are not encouraging enough to attract legal
practitioners to accept appointments in the Ministries of Justice. For instance, lawyers in the Ogun State Ministry
of Justice had to embark on strike action to press for increased salaries and enhances remunerations. See the
Guardian Newspaper, Tuesday June 3rd, 1997, p.3
57 Of the 1999 Constitution (as amended)
58 C.A. Igwe Op cit P. 293
59 M.C. Okany “The Continuation of Ouster Clause in Nigerian Law after 1999: A Beneficial Wrong Doing” in
Chief M.A. Ajanwachuku & H.P. Faga (eds). Contemporary Legal Thoughts: Essay in Honour of Chief Jossy C.
Eze Corps Legal Aid Scheme Abakaliki, 2008. pp. 337-338.
60 Section 36 (6) (a) (b) (c) of the Constitution.
61 Section 35 of the Constitution
62 Of the same Constitution
63 See Adegbite v. C.O.P (2006) 51 W.R.N PP.186 and 187
64 (2007) 5 NWLR (pt. 1027) 272
65 (2012) 9 NWLR (pt. 13041 104. See also Enwere v. C.O.P (1993) 6 NWLR (pt. 279) 333; Oshinaya v.
C.O.P (2004) 17 NWLR (pt. 901)1; Chinemelu v.C.O.P. (1995) 4 N WLR (pt.390) 467. Jimoh v. C.O.P
(2004) 17 NWLR (pt. 902) 389.
66 See Ani v. The state (2002) 11 WRN 53; Jimoh v. C.O. P (2005) ALL FWLR (pt. 243) p.648
67 Op. cit P. 8
68 (1973) CCHCH. 52
69 Op cit P. 9, also reported in G.O.S Amadi Op. cit p. 200
70 Criminal Justice Administration (Lagos State) 2011
72 T. Adedamola, , Nigerian Bar Journal, vol. I No 3, 2003. p. 299.
73 E. Malemi, the Nigeria Constitutional law (Lagos,Princeton Publishing Co.,2010) p.125
74 See A.G Abia State v. A.G Federation (2002) 6 NWLR (Pt. 763) 391; INEC v. Balarabe (2003) 3 NWLR
(pt. 806) P. 72 Sc; A.G Bendel State v. A.G Fed. & 22 Ors (1982) All NLR 85 SC; Doherty v. Balewa
(1961) All NLR 604 SC; Marbury v. Madison 5 US 154 (1803); A.G Ondo State v. A.G Fed. (2002) 9 NWLR
75 Understanding the Concept of Jurisdiction in the Nigerian Legal System (Enugu, Snaap Press Ltd, 2008)
76 (1961) NSCC (Vol. 2) 374@380.
77 See also NNPC v. Tijani (2006) 17 NWLR (pt.1007)29. Ononye v. Odota (2008) 10NWLR (Pt.1096)483;
Action Congress v. Kaigama (2008) 8 NWLR (pt. 1088) 165; Njikonye v. MTN Nigeria Communication
Limited (2008) 9 NWLR (Pt. 1092)339, FCE, Pankshin v. Pusmut (2008) 12 NWLR (Pt. 1101) 405: Apadi
v. Banuso (2008)14 NWLR (pt.1103) 204; Edet v. State (2008) 14 NWLR (pt. 1106)52; EFCC v. Ekeocha
(2008)14NWLR(pt. 1106) 161
78 See Attorney General of Lagos State v. Dosunmu (1989) 6. S.C.N..J. (pt.11) 134 at 179.
79 (1991) 1. N.W.L.R (pt. 166) 166 at 206.
80 State v. Onagoruwa (1992) C.S.C.D. 17, at 19
81 Matari v. Dangaldima (1993) 3 NWLR (Pt. 281) 265.
83 Supra at p. 550 paragraphs D-F.
84 C.A. Igwe Op.cit p. 283.
85 At page 564, paras. D-G. It is unfortunate to observe that Niki Tobi who had in a good number of Cases
maintained at the Court of Appeal that holding charge was illegal; could not stand for justice in this case.
86 At page 194, paras. F-H
87 See A.G., Anambra State v. A.G of the Federation (2005) 22 NSCQR (pt. 11) 574. at P. 592: Alliance of
Democracy v. Peter Ayodele Fayose & 4 Ors (2005) 10 NWLR (Pt. 932) 151 P. 188.
89 (1993) 10 S.C. N.J 20 at 116.
90 (2013) All FWLR (pt. 660) 1243.See also Ahmed v. C.O.P Bauchi State (2012) 9 NWLR (pt. 1304) 104.
91 See C.A Igwe. Op.cit P. 283
93 Chief Great Ovadje Ogboru v. Chief James Onanere Ibori and 27 Ors (2005)13NWLR (pt.942)310 at P..393
paras A-C;Garba v. Federal Civil Service Commission (1988)1NWLR (pt.449);Fyouzughul v. A.G
Benue State (2005)5NWLR (pt.918)226 at P.248
1 See generally Osita Eze: Human Rights in Africa: Some Selected Problems. (Nigerian Institute of
International Affairs, Lagos, in co-operation with Macmillan Nigeria Publishers Limited, 1984). Ashild
Samnoy: Human Rights as International Consensus: The Making of the Universal Declaration of Human
Rights. (Thesis for the Candidate of Philosophy, Department of History university of Bergen; May, 1990).
2 Naill Macdermolt: Opening Address to the International Conference on Human Rights Education in Rural
Environments, Lagos, Nigeria, 1985. P. 10. For other contributions along this line, see Chukwudifu Oputa:
Human Rights in the Political and Legal Culture of Nigeria, at the Second Idigbe Memorial Lectures, 1986,
P. 45. Chukwuweike Idigbe: Fundamental Rights Provisions of the Constitution, at the all Nigerian Judges
Conference Papers, 1982, (London, Sweet and Maxwell, 1983) P. 41. Ransome Kuti v. Attorney General of
the Federation (1985) 2 NWLR (Pt. 6) 211., M. Cranston: “Human Rights Today”, quoted from A.J. Mitre:
“Should we Have a Bill of Rights? “(1977) 40 MLR 389 at 392.
3 Chapter IV of the 1999 Constitution (as amended) (herein after referred to as the constitution)
4 Ojo, A., Fundamental Human Rights in Nigeria; The 1963 and 1979 Constitutional Provisions’, Nigerian
Journal of Contemporary Law (1977-1980); p. 118.
5 Chapter 11 of the Constitution.
6 By virtue of Section 6(6) (c) of the Constitution
7 A.N. Nwazuoke Introduction to Human Rights Law (Abakaliki, Copycraft In’t Ltd, 2006) P.7.
9 The League of Nations was the Precursor of the United Nations Organization.
10 See Chapter 1V of the Constitution.
11 Thomas Jefferson Cited in Henry J. Steiner and Phillip Alston (2000) International Human Rights in
Context, 2nd Edition, Oxford, P. 325.
12 Niell MacDermott: Opening Address to the International Conference on Human Rights Education in Rural
Environments, Lagos-Nigeria, 1985, P. 10.
13 Though Chapter 11 is non- justiciable.
14 Osita Eze, Human Right in Africa: Selected Problems (Lagos: Macmillan, 1984) P.5.
15 (1985) 2 NWLR (pt. 6) 211 at 230.
16 (2010) 7 NWLR (Pt. 1192) 61
17 Cap. A 9 L.F.N-2004
18 See S. 46(1) & (2) of the Constitution.
19 Prof. Richard Stone, Textbook on Civil Liberties, Blackstone Press Ltd, London, 1994, P. 29.
20 Dr Okpara Okpara Op.cit P. 139.
21 Lord Denning, Freedom Under The Law (1949) P. 5.
22 Eyu V. State (1988) 2 NWLR (Pt. 78) 602 at 626, paragraphs G-H.
23 E.C.S. Wade, Law of the Constitution, 10th ed.; chapter 5, pp. 207-208.
24 (1942) A.C. 206
25 (Ratification and Enforcement) Act, Cap. A 9 L.F . N 2004. The African Charter is part of the laws of
Nigeria and therefore should be accorded equal weight with it, regard being had to international obligations
Nigeria has assumed under the Charter. See Ogugu v. State (1994) 9NWLR (pt. 366) ; Abacha v. Fawehinmi
(1996) 9 NWLR (Pt. 475) 710 at 745.
26 This is perhaps the most observable lapse in the holding charge Phenomenon. Suspects are kept awaiting
trial for periods much longer than they would have remained in prison custody if they were convicted for the
27 This is the presumption against self-incrimination that is constitutionally recognized under Section 36(1) the
28 Section 36(4) of the Constitution, prescribes two months for persons under custodial arrest and three months
for other cases. In other words , no person shall be in detention without arraignment for longer than three
29 Nwabueze, B.O. The Presidential Constitution of Nigeria United Kingdom, C. Hurst & Co. (1982).
30 Court of law must be interpreted to mean a court having jurisdiction to try the offence for which the accused
person was arraigned before it.
31 Reasonable time is defined in section 36(4) of the constitution
32 Unreported Suit no. IKD/M/18/2003, a decision of the Ikorodu High Court delivered on the 28th of July
33 Ibid, P. 26 of the ruling.
34 Ibid, P. 27 of the ruling
36 And other States Laws that has similar provisions.
37 See Ibidokun v. Adaralode (2001) 12 NWLR (pt. 727) 268 at 312.
38 T.A. Aguda, “The Challenge for Nigerian Law and the Nigerian Lawyer in the 21st Century”, a Nigerian
National Merit Award winners Lecturer, Presented on September 14, 1988, at 3-4.
39 (1948) General Assembly Resolution 2174 (111).
40 Reasonable Time is the Shortest time a cause or matter ought to be heard and determined having regard to
the dictates of the law and the requirement of fair hearing. Beyond the said period, inordinate delay, which
vitiates fair hearing sets in. See Obaseki A.O. (Justice). “Defeating Delay-Case Flow Management; A
keynote Address Delivered at a Seminar for Legal Practitioners Organized by continuing Legal Education
Association of Nigeria (CLEAN) in Lagos, Nigeria on March 16, 1994 at P. 3.
41 Adeyemi, A.A., Criminal Justice Administration in Nigeria in the Context of the African Charter on Human
and peoples’ Rights: in Kalu, A. and Osinbajo, Y. (eds.) (1992) Perspectives on Human Rights. PP. 121-141
42 Section 36(5) of the constitution. This right is discussed latter in this work.
43 Ibid, Section 36(6) (a)
44 Ibid, Section 36(6) (b)
45 Ibid, Section 36(6) (c)
46 Ibid, Section 36(6) (d)
47 Bones (ed.) et al Osborn’s concise Law dictionary 9th edition London. Sweet and Maxwell, 2001 p. 297.
48 The ICCPR entered into force on 23rd march 1976.
49 Evidence Act 2011 (amended)
50 Ibid. section 135(1(. See also Musa and Anor v. COP (204) 9 NWLR (Pt. 879) 483 at P. 502; Fayemi v. Oni
(2009) ALL FWLR (Pt. 493) 1254.
51 (1957) NWLR 40 at 42.
52 (1964) SC 1563.
53 Supra, Pp. 498-499 Para H-F and P. 505 Para A-B Ratio 2.
54 Ibid P. 502
56 See also Nwankwo & Ors v. The Queen (1959) 2 S.C.N.L.R. 675. (The accused persons or at least some of
them, were charged to court a year after their arrest and detention by the police).
57 Paul A.E. The Legal Effect of the Principle of Presumption of Innocence under Nigerian Law: ‘The Rights
of an Accused Person in Perspective’. Human Rights Review: An International Human rights Journal 2010.
vol. 1, No 1 P. 319.
58 (1980) INNLR 113.
59 (1982) 4 SC 41
60 (2008) 8 NWLR (Pt. 1089) P. 298 at PP. 324-327. para A-A.
61 Ibid P. 322 paras D-G.
62 Paul A.E. Op.cit. P. 321.
63 (1979) 6 S C 79.
64 And other similar States Laws that permits remand orders by Magistrate on Indictable Offences.
65 See the case of Triana Ltd v. Universal Trust Bank PLC (2009) 12 NWLR (Pt. 1155)313.
66 (2010) 12 N.M.L.R. (Pt. 1) 365.
67 (1982) 2 NCLR 552 Pp. 561-562.
68 (1984) 3 NCLR 830.
69 His Honour Judge Stephen Tumin, Prison Disturbances April 1990: Report of an Enquiry (CM 1456, 1991)
part 2. 14-294.
70 United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, Principle 1-United Nations Document A/43/49 (1988). Principle 6 further declares that
“Cruel, inhuman or degrading treatment should be interpreted so as to extent the widest possible protection
against abuses, whether physical or mental, including the holding of a determined or imprisoned person in
conditions which deprive him, temporarily or permanently of the use of any of his natural services, such as
sight or hearing, or his awareness of place and the passing of time”.
71 Adopted by the First United Nation Congress on the Prevention of Crime and the Treatment of Offenders
held at Geneva in 1955 and approved by the Economic and Social Council by its Regulations 663 (XXIV)
of 31st July 1957 and 2076 (LXII) of 13th May 1977.
72 In adopting the above international regulation, the Prisons Regulations made pursuant to the Prisons Act has
in its Sections 15,16 and 17 made similar provisions.
73 Prisons Act Cap. P.29 L.F.N 2004.
74 See Lily Ojo, “The State of the Nigerian Prisons” being a paper delivered at the National Seminar on Prison
Reform June 18-20, 1990. P.7.
75 Dennis Ude Ekumankama Op cit P. 228.
76 Quoted in “Behind The Wall” Published by Civil Liberties Organization in August, 1996. P.1
1 See Dakas C.J Dakas and Francis M. Kwede, Impediments to the Speedy Dispensation of Criminal Justice in
Nigeria and the Imperative of Urgent Remedial Action, Jos Bar. Journal vol. I. No. 1. 2003 P. 155.
3 See Olawoye v. COP (Supra), Ahmed v. C.O.P (Supra), Shagari v. COP (Supra), Agundi v. COP (Supra),
Enwere v. COP (Supra), Oshinaya v. COP (Supra), Chinemelu v. C.O.P (Supra), Onagoruwa v. State
(Supra), Anakwe v. C.O.P (Supra), Adegbite v. C.O.P. (Supra).
5 See, for instance, Nnajiofor v. Ukonu (1989) 2 N.W.L.R (pt. 9) 686, at 695; Unongo v. Aku (1983) 2 S.C.N.I.R. 332.
6 (1983) 1 SCNLR I at 24-28 and 15-16
7 See also Isiaku Mohammed v. Kano Native Authority (1968) 1 All NLR 424; Obiaso v.Okoye (1989) 5
NWLR (pt. 119) 80.
8 407 US 1514, 530 (1972).
9 See Odogu v. Attorney-General of the Federation, (2002)2 HRLRA P.84
10 (!972) 4 S.C. 118.
11 See Fasakin Foods (Nig) Ltd v. Martins Babatunde Shosanya (2006) MJSCN vol. 7. P. 48 at 52. Per
Ogbuagu, JSC; see also Lakanmi v. Adona and 3 Ors (2003) 4 SCNJ, 348 at 355. Per Kalgo J.S.C.
12 (2005) SCNJ. P. 17 at 25.
13 See Ukwunnenyi and another v. The State (1989) 3 N.S.C.C. 42 at 45. Per Oputa J.S.C.
14 Section 36(5) of the Constitution. See also Article 7 (1) (b) of the African Charter on Human and Peoples’
15 Dash S., “The Emerging Role and Function of the Criminal Defence Lawyer”. North Carolina Review, 47.
16 See also the dictum of Oputa J.S.C. in Josiah v. State (1985). I .N.W.L.R (Pt. 1) P 131 at P. 140. See also,
Okoduwa v. State (1988); 2 NWLR (Pt. 76). Nse Udo Nita v. State (1993) NWLR (Pt. 283) P. 512.
17 Fellman D.; The Defendants Rights Today. (The University of Wisconsin Press, 1976) P. 208.
18 Trans Bridge Co. Ltd. V. Survey International Ltd (1986) NWLR (Pt. 37) P. 576 at 596.
19 Showunmi L.A.; “Reform of Criminal Justice System and Congestion of Prisons by Awaiting Trial Persons-
Are there Alternative? Paper presented at the Summit of Stakeholders on the Administration of Justice in
Lagos on 17th June, 2004.
20 T.O. Ifaturoti (Mrs.), “Nigerian Prisoners and the Human Rights Campaigns: Some Challenges”. Nigerian
Current Law Review 1994, P. 87.
21 Civil Liberties Organisation Annual Report in Nigeria 1999, at P. 200.
22 Taofik Adedamola, Op. cit at P. 289.
23 See Behind The Wall, A report on Prison Conditions in Nigerian and Nigerian Prison System. CLO. 1996
edition p. 13.
24 See Behind The Wall, Ibid, and Quoted in Ignatius A. Ayua, “Towards a more Appropriate Sentencing
Policy in Nigeria” in Nigerian Law Reform Journal No. 3, January, 1983 P. 22.
25 See CLO’s Report Human Rights in Retreat, 1993, P. 120.
26 The ATP influx is at the core of our prison reform formular, for if we can effectively and sufficiently reduce
and control their inflow into our prisons, then it would be possible with better management techniques, for
the available resources to more efficiently serve the needs of deserving inmates. See Odinkalu A.C. and
Ehonwa L. Behind the Wall-A Report on Prison Conditions in Nigeria and the Nigerian Prison system”
(1991) CLO, Lagos PP. 208-2009.
27 See generally section 8 of the United Nations Standard Minimum Rule for the Treatment of Prisoners; and
Sections 15, 16 and 17 of the Prisons Regulations, made pursuant to the Nigerian Prisons Act Cap. P. 29
28 See Lily Ojo, “The State of the Nigerian Prisons” being a paper delivered at the National Seminar on Prison
Reform. June 18-20, 1990, P.7.
29 Ikemefuna Patrick, “The Administration of Nigerian Criminal Justice and Reform of the Penal Code”, a
Paper presented at the Conference on Prison Reform Organized by the Metropolitan Grand Knights of Saint
Mulumba, Lagos. See Vanguard Newspaper, May 30, 2013. P. 5.
31 Agomo Uju, “The Prisons Tomorrow Civil Society Perspective”. A paper Presented at the Reform of
Criminal Justice System III, Organized by the Lagos State Ministry of Justice on June 16, 2004.
32 Jiti Ogunye, Criminal Justice System in Nigeria: The Imperative of Plea Bargaining”, Lawyers’ League for
Human Rights, August 2005, P. 29.
33 See Particularly chapter iv of the 1999 Constitution (as amended)..
34 Section 36(1) Ibid.
35 Section 36(5) Ibid.
36 Section 36(6) (a) (b) (c) Ibid.
37 African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. Cap. A 10, L.F.N. 2004.
38 Osheyire v. British Caledonian Airways Ltd. (1990) 7 N.W.L.R (Pt. 163) 507. Ogugu v. State (1994) 9
NWLR (Pt. 366) 1; Abacha v. Fawehinmi (1996) 9 NWLR (Pt. 475) 710 at 745.
39 Cap. C 41 L.F.N 2004 applicable in the 17 States found in the Southern part of Nigeria.
40 Section 9. Ibid.
41 AP 30 Laws of Northern Nigeria 1963.
42 See, For instance, S. 35 (4) (a) (b) of the Constitution
43 Nwankwo and Ors. V. The Queen (1959) 2 S. C.N.L.R. 675 (The accused persons, or at least some of them,
Were charged to court a year after their arrest and detention by the police). A study has shown that only
11.5% of accused persons responded that they were taken to court within 24 hours of their arrest: M.A.
Ajomo and I.E. Okagbue (eds). Human Rights and the Administration of Criminal Justice in Nigeria 117-
44 Asakitikpi v. The State (1993) 5 NWLR (Pt. 296) 641 (Time lag of 14 months between the date the accused
person was charged to court and the date when the trial commenced): Garba v. The State (1992) 4 S. C 118.
45 Ozuluonye & Ors v. The State (1983) 4 N.C.L.R. 204 (A period of about 4 years); Sambo v. The State (1989)
46 Shehu v. The State (1982) 1 NCR I.
47 Asakitikpi v. The State (Supra).
48 See Adegbite v. C.O.P. (Supra); Musa & 7 ors v. C.O.P (Supra); Obekpa v. C.O.P (Supra).
49 (1982) 4 S.C. 41
50 (1993) 6 NWLR (Pt. 299) 333; See also Ukatu v. C.O.P (2001) FWLR (Pt. 66) 758.
51 Ibid, at PP. 342-343.
52 (1987) 4 NWLR (Pt. 65) 420.
53 (1978) NSCC 312.
54 439 PA, 584 at 601
55 Matari v. Dangaladima (1993) 3 NWLR (pt.281) 265; Peenock ltd v. Hotel presidential ltd (1982) 12 S.C.I
56 See C.A. Igwe Op.cit p. 284.
57 Glanville Williams, Text Book of Criminal law, London, Stevens & sons. 2nd ed; 1983, p.7.
58 Ibid; at p. 11
59 See C.A. Igwe. Op.cit P. 284
1 (1998) 11 N.W.L.R (Pt. 575) 547.
2 See Ogor v. Kolawole (Supra), Enwerem v. C.O.P (Supra), Adegbite v. C.O.P (Supra0
4 Now section 264(1) of the Criminal Justice Administration
6 See Ali Aisha M., ‘Effects of Delay in the Administration of Justice (Causes, Effects and Solutions)’ Paper
Presented at a two day Workshop for Police and other stake holders in the Administration of Justice for
Effective Case-flow Management for Access to Justice in Maiduguri, Borno State Organized by the National
Council of Women’s Societies (NCWS) and GTZ (Germany) on 31st May, 2004.
7 See www.citizens advocate.
8See the Punch Newspaper Friday 23rd January, 1998 at page 12.