As I have noted earlier, Nigerian law33 is replete with provisions guaranteeing the rights of an accused person before, during and after trial in a court of law. For instance, the constitution provides that a person in the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality,34 that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.35 

Also that every person who is charged with a criminal offence shall be entitled to be informed in the language that he understands and in detail the nature of the offence, be given adequate time and facilities for the preparation of his defence and to defend himself in person or by legal practitioner of his own choice.36
            The importance of the rights of an accused person has also been universally recognized and subsequently incorporated into our laws.37 The efficacy and applicability of the African Charter on Human and Peoples’ Rights have been acknowledged by our courts in several cases.38 Thus, Article 7 of the Charter provides:
1.         Every individual shall have the right to have his case heard. This comprises.
a.         The right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
b.         The right to be presumed innocent until proved guilty by a competent court or tribunal;
c.         The right to defence, including the right to be defended by counsel of his choice;
d.         The right to be tried within a reasonable time by an impartial court or tribunal.
            From the foregoing, it goes without saying the fact that a detainee is not rendered “rightness” by reason only of an allegation of a crime against him. This is because suspects are not convicts, they are neither to be viewed nor treated as such. Thus, the Nigerian criminal procedure Act39 provides that any person who is arrested shall be taken with all reasonable dispatch to a police station or other place for the reception of arrested persons, and shall without delay be informed of the charge against him. Any such person while in custody shall be given reasonable facilities for obtaining legal advice, taking steps to furnish bail, and otherwise making arrangements for his defence or release.40 In the Northern States of Nigeria, the state of affairs under the criminal procedure code41 is similar but clearer. According to section 129 (1) of the code, wherever it appear that an investigation… cannot be completed within 24 hours of the arrival of an accused or suspected person at the police station the officer in charge of the police station, shall release or discharge him or send him as soon as practicable to the nearest court competent to take cognizance of the offence.
            The sum total of this and preceding prescriptions is the proper treatment of detainee. From the language of the law, any delay occasioned by the inability of the state to bring the detainee to trial within a reasonable time may, depending on the circumstances, cause his release.42
            It is unfortunate to observe that notwithstanding the glittering provisions of Nigerian law on the speedy administration of criminal justice in Nigeria, the reality is that the law is honored more in the breach than in the observance. Numerous cases abound on delays:
a.         From the arrest of a suspect to the institution of criminal proceedings against him/her.43
b.         From the institution of criminal proceedings to the commencement of hearing of the evidence of witnesses;44
c.         From the commencement of hearing to the conclusion of finial addresses;45
d.         From final addresses to the delivery of judgment;46 and
e.         From the delivery of judgment by the trial court to the determination of an appeal against the decision.47
            It will suffice to say that the process whereby the accused person is denied a speedy trial for a criminal allegation leveled against him is a breach of the constitutional provision that provides for the accused person fair trial within a reasonable time. The trial within a reasonable time is more germane considering the fact that the accused person is still presumed innocent until the contrary is proved.48
            The provision of presumption of innocence under Nigerian law can only be efficacious if accused persons awaiting trial are admitted to bail. In the case of Saidu V. State,49 Obaseki  J. S. C. (as he then was) held as follows:
It does not give the court any joy to see offenders escape the penalty they richly deserve but until they are proved under the appropriate law in our law court, they are entitled to walk about in our streets and tread the Nigerian soil and breath the Nigeria air as frees and innocent men and women.

In the case of Chief Pat Enwerem v. Commissioner of Police,50 the court of appeal (Port-Harcourt Division) condemned the practice of holding charge syndrome and stated that it is unknown to Nigerian law and an accused person detained there under is entitled to be released on bail within a reasonable time before trial more so in non-capital offence,
            In the above case the appellant on allegation of murder and unlawful killing of a member of Abia State House of Assembly, on application under the Fundamental Rights (Enforcement Procedure Rules), the appellant was released on bail by the High Court of Cross River State. Later, the police re-arrested the appellant and arraigned him before Isuikwuato magistrate court on a charge of murder. The learned magistrate declined jurisdiction yet remanded the accused person/appellant at Ishikwuato police station. An application to the High Court for bail was refused. On appeal to the Court of Appeal, the Court held:
Happily, by our constitution and government, this country cannot operate a ‘Police state’… Want of jurisdiction on the part of the magistrate… does not justify appellant’s prolonged incarceration … In a free country like ours the action of the law enforcement Agencies concerned with this matter was barbaric, a contravention of section 31(1) (a), 32 and 6 (6) (a) of the constitution.51

Also, in Mohammed & Ors V. C.O.P52, the appellants were arraigned before a chief magistrate’s court in Zaria on a first information report in which they were alleged to have committed culpable homicide punishable with death contrary to section 221 of the Penal Code. Upon a motion for bail on behalf of the appellants, they were released. After about seven months, the magistrate revoked the bail and remanded appellants in prison custody. The appellants subsequently filed an ex parte motion in the high court seeking inter alia the enforcement of their fundamental rights. The application was refused. On appeal, the Court of Appeal held that an accused was entitled to the protection of his personal liberty if he was in prison custody or detention following an accusation of the commission of an offence by invoking section 32 of the 1979 constitution.
            The facts in Emezue v. Okolo & Ors53 suggest that detention even for a limited period may be unlawful. The appellant claimed against the respondents the sum of N2,000 as damages for unlawful detention in the police station at Umuahia. The respondents who were all police officers applied to the court for an order dismissing appellant’s claims on the ground that it disclosed no cause of action. That application was granted. On appeal to the Supreme Court it was held inter alia that the appellant having alleged that he was detained for about 48 hours, his statement of claim disclosed a cause of action for wrongful detention with respect to the excess. It is submitted that these pronouncements favours constitutionalism and the enforcement of rights.
            Therefore, any protracted prosecutions and undue remand orders even where there are sufficient grounds to grant the accused bail is nothing but a disguised holding charge strategy targeted at victimizing suspects especially those that refused to grease the palms of unscrupulous officers. This is a serous affront on the suspects constitutionally guaranteed right to personal liberty, far hearing, presumption of innocence, fair trial  etc.
The terrible effects of pre-trial incarceration have been eloquently stated in the case of Hartage  v. Hendric54 as follows:
The imprisonment of an accused prior to determination of guilt is a rather awesome thing. It cost the tax payers tremendous sums of money; it deprives the affected individual of his most precious freedom and liberty; it deprives him of his ability to support himself and his family; it quite possibly cost him his job; it restricts his ability to participate in his own defence; it subjects him to the dehumanization of prison; it separates him from his family and without trial it cast over him aura of criminality and guilt.

            It has been held that once a court observed that it has no jurisdiction to entertain a matter, the proper order to make is to strike out the case or charge and not to remand the suspect because any subsequent proceeding or order made by the court is a nullity and consequently void.55   
            It is axiomatic that the degree of liberty obtainable in any society depends ultimately on the attitude of the court. Therefore, the court should interpret any law sanctioning holding charge narrowly, strictly and restrictively against the party seeking to rely on it and more liberally and sympathetically in favour of the accused person who is being deprived of  the accused prison who is being deprived of his constitutional right upon reliance on the state statute.56     
            According to Glanville Williams, the manner of administration of criminal justice depends, “too much on the decision of the Police and other prosecutors taken in private and without effective control”.57 The police often “over charge, perhaps because they are not sure of the facts and wish to preserve all their options”.58 This is true of most of the police prosecutors. The only purpose is to halt expeditious prosecution of criminal cases. In view of this, court needs to be less willing to exercise its powers in favour of the prosecution in such circumstances. Rather, the court should courageously strike out such cases for want of jurisdiction59.
            No doubts, capital offences are vile and punishment for such offences is of necessity the mark of society’s revulsion. Yet only the guilty should be punished. The slightest punishment of presumed innocent citizen under the guise of a Holding charge is of greater severity than the death sentence of a murderer. It is submitted that the least toleration of improper police practice is worse evil than the occasional escape of a criminal. The view is that the court cannot aid the police to adopt unconstitutional means to discharge its statutory duties.60

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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