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.

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.

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.
2 Ibid.
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).
4 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.
    (April 1969).
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
    L.F.N 2004.
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.
30 Ibid.
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)
    I.C.L.R.N 77.
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
60 Ibid.
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