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
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
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