Introduction
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,54confront 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 3657 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. Onoyivwe79Justice 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.92Thus, 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
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.
10 Ibid
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 Limited.1990.
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)
31 (Supra).
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
46 Ibid
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
State,
2011.C.J.A).
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 (pt. 772)
75 Understanding the Concept of Jurisdiction in
the Nigerian Legal System (Enugu, Snaap Press Ltd, 2008) p. 414
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.
82 Supra
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
92 Ibid
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