Read Full Text: Prof Fagbohun’s Paper on Holding Charges and Remand Prior to Trial





Being Text of Lecture Delivered at the 1st Annual Law Week of the Nigerian Bar Association, Epe Branch, in Honour of Honourable Mr. Justice G.A. Oguntade, JSC, FNIALS, CFR on 25th April, 2017

Introduction and Context

It is a great privilege and honour to have been invited to address this distinguished audience of legal practitioners and scholars, and share my thoughts on the sensitive topic of holding charge and remand in prison custody prior to trial. I have used the word “sensitive” because anything that seeks to curtail the right to liberty of a person who is yet to be convicted is always viewed with very serious concern. At least, that is how it should be premised according to Blackstone’s formation that it is better that ten guilty persons escape than one innocent person suffers.

Let me note that it is to ensure for more clarity that I, with the consent of the organizers, amended the topic to what I am addressing today. For the opportunity of this presentation, therefore, I thank the Chairman of the Nigerian Bar Association, Epe Branch, Prince A. S. Abimbola, other Branch officers and the alternate Chairperson of the Law Week Committee, Ms. Funmi Adeogun. I also congratulate the Chancellor of our University, the Lagos State University, Mr. Justice George Adesola Oguntade, JSC, FNAILS, CFR, in whose honour the Law Week for 2017 is dedicated. As I have had the cause to state elsewhere, Mr. Justice Oguntade is a jurist imbued with the best traditions of the Bench and furnishes a remarkable illustration of the inheritance of legal genius.

The subject of my lecture is “Holding Charge & Remand In Prison Custody Prior to Trial: An Agenda for Urgent Reforms”.  This subject, to say the least, remains topical and contemporary even though judicial decisions as early as 1983 and 1988 would appear to have conclusively made pronouncement in relation thereto. The reality is that this area of law is far from settled. The reasons for this are primarily two.

First, statutory provisions of criminal procedure codes at the Federal and State levels have made provisions that may be described as hijacking the powers of the court or nullifying some judicial decisions as relevant to the subject. Second, in enacting and re-enacting some of the statutory provisions on holding charge and pre-trial remand or detention, some provisions of the Federal and State criminal procedure codes now violate some rights that are constitutionally guaranteed. To this end, the contemporariness of the subject of this paper presents itself every time like the proverbial Phoenix that rose from its own ashes after being burnt to death. Beyond the two above-referred issues, another fundamental issue is that the Constitution itself, as will be seen in the course of this paper, tends to give credence to holding charge and remand in prison custody prior to trial.

Holding charge and eventual detention or remand of an accused person in prison custody forms part of the pre-trial stage of our criminal justice system.  The concept “holding charge” has been widely defined, explained and seriously criticized by both our appellate courts and writers. In an interview granted to The Guardian Newspaper by Mr. Moyosore Onigbanjo SAN in January 2016, the Learned Silk opined that “the Supreme Court and several courts in the land had in the past, when holding charge was operational, held that holding charge is unconstitutional and that there is nothing like holding charge. And they advised courts, especially magistrates’ courts and high courts to stop holding people on holding charge.”

Black’s Law Dictionary defines the term “holding charge” as a criminal charge of some minor offence filed to keep the accused in custody while the prosecutor takes time to build a bigger case and prepare more serious offence.

The Lawyers’ League for Human Rights, in its publication titled “Criminal Justice System in Nigeria: The Imperative of Plea Bargaining”, also holds the view that holding charge has no statutory foundation in Nigeria’s penal legislation, and explains the concept as a “term used by the legal community in Nigeria to describe a criminal charge that is filed against an accused person by the police before a magistrate court that ostensibly has no statutory power to try the offence charged, but makes an order remanding the person charged in prison custody pending conclusion of investigation or the arraignment of the personin the high court, upon information being filed by the Attorney General.”

Adam Adedeji, in an article published in the Independent Newspaper on 16th July, 2015, examined the prevalence of the practice of holding charge in the magistrates’ courts in Nigeria and cited the following authorities where the appellate courts have held that holding charge is unconstitutional: Ogor v. Kolawole (1985) 6 NCLR 534 at 539; Eyu v. The State (1988) 2NWLR (Pt. 78) 602 at 608; Enwere v. COP (1993) 4 NWLR (Pt.229) 333; Anaekwe v. COP (1996) 3NWLR 9Pt. 436) 320 at 332; Johnson v. Lufadeju (2002) 8 NWLR (Pt. 768) 192 AT 217.Other cases often referred to in this area are Jimoh v. COP (2004) 17 NWLR (Pt. 902) 389 and Bayo Johnson v. Attorney General of Lagos (1997) Suit No. CA/L/334M/97.

There is also the much cited case of Onagoruwa v. State (1992) 2 NWLR (Pt.221) 33 at 54, where the Supreme Court held that “In a good number of cases, the police in this country rush to court on what they generally refer to as a holding charge ever before they conduct investigations, though there is nothing known to law as “holding charge.”

The sum up of the opinions expressed by the courts and writers in this area is that holding charge lacks statutory and constitutional basis in Nigeria. Most importantly, it has been described as a gross violation of rights to liberty and fair hearing.  This may not really be so as I shall strive to show in this paper.

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Remand or detention in prison custody is the consequential order often made by the court—especially magistrates’ court—before whom a holding charge is brought against an accused person. Once the court hears and considers the reasons given by the (police) prosecutor against a suspect on reasonable suspicion of a crime, a remand order may be granted and the accused person ordered to be held in pre-trial prison custody pending the issuance of the advice of the Attorney General or the Director of Public Prosecution.

Just like a holding charge, the constitutionality and legality of remanding a person in prison pending the advice of the Attorney General or the Director of Public Prosecution, or pending when the person will be formally charged before a court of competent jurisdiction has been commented on copiously. Mr. Mojosore Onigbanjo SAN in his interview said that “there are many cases. There is Lufadeju v. Johnson. There are many and they keep representing it time and time again that there is nothing like remand. A magistrate or a judge of a high court cannot remand somebody in prison. Remand means that you are sending somebody to prison until further enquiries are made. It is unconstitutional. You must charge him and let him know the charges against him.” How correct is this assertion?

A Turn in the Tide of Judicial Authorities?

In Shagari v. COP (2007) 5 NWLR (Pt. 1027) 275 at 298 paras C-G, the Court of Appeal relying on the earlier cases of Enwere v. COP (supra);Jimoh v. COP (supra); Ogori v. Kolawole (1985) 6 NCLR 534; Onogoruwa v. State (supra) and Oshinaya v. COP (2004) 17 NWLR (Pt. 901) 1, held that:

A holding charge is unknown to Nigeria law and any person or an accused person detained thereunder is entitled to be released on bail within a reasonable time before trial…A holding charge has no place in Nigerian judicial system. Person detained under illegal, unlawful and unconstitutional document tagged “holding charge” must unhesitatingly 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.

As earlier noted, a turn in the tide has substantially affected the authorities and opinions against holding charge and pre-trial remand. There is a new dispensation which has done away with the old order. Holding charge and pre-trial remand in custody are now provided for both in Federal and State statutes. Recourse in this regard is made in particular to the Administration of Criminal Justice Act (ACJA) 2015 and Lagos State Administration of Criminal Justice Law (ACJL) 2011. The position now is that a magistrate court need not have jurisdiction to try an offence before having jurisdiction to make a remand order in respect of same.

The Supreme Court in Lufadeju v. Johnson (2007) 8 NWLR (Pt. 1037) 535, reversing the judgment of the Court of Appeal in Johnson v. Lufadeju(2002) 8 NWLR (Pt. 768) 192 that holding charge was illegal and unconstitutional, held that remanding the Respondent in prison custody by the magistrate pursuant to the holding charge is not in violation of the Constitution and the African Charter.  Briefly, the facts of the case are that the Respondent was taken along with others to the magistrate court on holding charge for treason, and a remand order was sought.  The charges were read out to them, but plea was not taken. The magistrate eventually ordered their remand to prison custody. The Respondent applied for bail, but same was denied by the magistrate on the ground that the court did not have jurisdiction to grant bail on an offence it did not have jurisdiction to try. Dissatisfied, the Respondent appealed to the High Court which affirmed the decision of the Magistrate’s court. The Respondent further appealed to the Court of Appeal, and the decision of the High Court was set aside. The Appellant then appealed to the Supreme Court. Upholding the decisions of the Magistrate Court and High Court, the Supreme Court, Per Muktar JSC, held inter alia:

The fact is there was strong suspicion that the respondent and some others have committed an indictable offence to wit—treason. After their arrest by the police, there was need to properly and lawfully keep them in custody, and the only way to do this was to take them to a Magistrate’s court who would in turn remand them in custody. They couldn’t possibly continue to remain in police custody without the order of a court concluded, and the legal advice of the Ministry of justice sought…

Section 293(1) of the ACJA 2015 now unequivocally confers a magistrate court with the power to make a remand order against a suspect arrested for an offence where the magistrate has no jurisdiction to try the offence, provided the conditions for seeking the remand order are complied with by the applicant for a remand order. The applicant is to approach the court by filing Form 8 (Report and Request for Remand). The contents of Form 8, among other things, provide for listing of the offence that the person is charged with and possibility of further investigations.

In the same vein, section 264(1) of the ACJL 2011 empowers the magistrate to, upon an application, make a pre-trial remand order against any person arrested for any offence triable by information. An offence triable by information is one punishable by a term not exceeding a term of two years or on conviction, punishable with a fine of not more than N50,000. The contents of Form 10 also provide for listing of the offence the person is charged with. Since it is upon this Form 8 or Form 10 the Magistrate considers remanding a person to prison custody, it can also be likened to a holding charge. In practice, the charge is often read out without a plea taken.

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The afore-stated position is without doubt a statutory recognition of holding charge and pre-trial remand or detention in Nigeria as of this moment. At this junction, it is appropriate we consider the position under the Constitution.

Constitutionality or Otherwise of Holding Charge & Pre-trial Remand

The arguments against the use of holding charge and pre-trial detention often centre around two major fundamental human rights guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), namely: right to liberty under section 35 and right to fair hearing under section 36.

Mike Ozekhome, SAN argued in one of his articles that “aside the fact that sections 293-299 of ACJA 2015 violently violate section 35(4)&(5) of the Constitution…they also presumptuously create a holding charge which has been declared by the highest courts of the land to be patently illegal, unconstitutional, null and void.” With respect to the Learned Silk, this position clearly failed to give due cognizance to the 2007 decision of the Supreme Court in Lufadeju v. Johnson. Rather, the opinion is based on the old order.  This is clearly evidenced by the cases relied on by the Learned Silk all of which were decided prior to 2007.

Section 35(4) of the Constitution, which talks about the period of time within which a person may be held in remand, provides for a period of two months (in the case of a person who has been in custody without bail) or three months (in the case of a person who is on bail) after which a person arrested or remanded may be released by the court conditionally or unconditionally to ensure he appears for trial at a later date. On the other hand, the maximum period a person in remand awaiting trial is expected to stay under sections 293-299 of the ACJA 2015 before the court will discharge him in the event that the advice of the Attorney General is not forthcoming is the overall period of 42 days— split into first 14 days, second 14 days and third 14 days. This is obviously in line with the permissible time provided under section 35(4) of the Constitution which permits up to 2 or 3 months.

Section 35(5) of the Constitution applies to the maximum period a person arrested or detained at a police station should be brought before the court for remand. The permissible period here is defined as 1 to 2 days depending on the distance or such other period as may be considered reasonable by the court. On the other hand, section 293(1) of ACJA 2015 provides that a person arrested for an offence must be brought to court within a reasonable time of arrest without stating hours or number of days. However, reasonable time has already been defined by the Constitution as 1 to 2 days. There is therefore nothing in sections 293–299 of ACJA 2015 contradicting the provisions of section 35(4)(5) of the Constitution or any other section since it does not define reasonable time as a period of time later than 1 to 2 days. What should be of concern, however, is the provision of section 264(8) of ACJL 2011 which allows further extension of a remand order after a period of 60 days. The length of time allowed under the Constitution is two months. There is no doubt that this runs contrary to section 35(4) of the Constitution.

It needs be mentioned, contrary to popular views, that both holding charge and pre-trial remand could be said to have found their basis in section 35(1)(c) and (4) of the Constitution. As one of the exceptions to right to liberty, subsection (1)(c)provides that a person’s personal liberty may be deprived “upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence” and the extent of that deprivation which is done through legal remand or detention is provided for in subsection (4) to mean a maximum period of 2 or 3 months as the case may be.

Practical Concerns About Holding Charge & Pre-trial Remands

The bulk of the challenges confronting the use of holding charges and pre-trial remands stems not so much from the presumption that holding charges and pre-trial remands, ab initio, violate constitutionally guaranteed rights. Rather, they relate more to the challenges and inefficiency that have characterized the administration of criminal justice system in Nigeria. Some of these challenges include deliberate & negligent abandonment of pre-trial suspects in prison custody which ultimately results to prison congestion; lack of follow-up of remand cases by remanding judges/magistrates as required by the law; lack of or poor investigation of criminal allegations by police officers before application for remand orders, among others.

In a report by the National Bureau of Statistics (NBS), covering data from 2011 to 2015, it was reported that up to 72.5% of Nigeria’s total prison population are inmates serving term while awaiting trials. The National Human Rights Commission  also reported earlier in a 2014 report that 70% of the inmates in prison across the country are awaiting trial. The same report confirmed that the “total prison population in Nigeria is 56,718, comprising— 17,686 convicts (4,000 lifers; 1,612 condemned convicts) and 39,032 Awaiting Trial Persons. In addition, the Vanguard Newspaper of 14th January, 2017 reported that no fewer than 47,817 inmates are currently awaiting trial in Nigerian prisons out of a total number of 69,200 detainees. At this point, it is instructive to reflect on the ordeals of Sikiru Alade and Hyginus Ajibo which exemplify the real concerns that may result from pre-trial remand order that is not followed up by the remanding judge/magistrate, the prison officials and other persons upon whom obligation to so do are vested.

  • Sikiru Alade was a panel beater in Lagos before his arrest on 9th March, 2003. He was arrested by a plain-cloth police man in mufti who at the time of the arrest did not disclose his identity. He was forcefully dragged to Ketu Police Station where he was detained. Six days later (15th May, 2003), he was taken to the Magistrates’ Court Yaba by way of a holding charge on an allegation of armed robbery. The Magistrate ordered his remand in Kirikiri Maximum Prison in Apapa, Lagos. Alade was not returned to the court or any court of competent jurisdiction, and therefore remained remanded in prison for 9 years, 6 months without a trial or formal charge before any court. Then, an application was brought on his behalf at the Ecowas Court of Justice in SUIT NO: ECW/CCJ/ APP/05/11: Sikiru Alade v. Federal Republic of Nigeria. The court handed down its judgment on 11th June 2012, and held that Alade’s detention for almost 10 years without a trial or charge violated his rights under the African Charter on Human and Peoples’ Rights. The Chief Judge of Lagos eventually ordered his release on 18th September, 2012.
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  • Hyginus Ajibo was accused of murder. He was arrested and remanded in custody in 1997 where he spent the first three years. In the year 2000, he was charged to Enugu High Court where commencement of his trial got stuck. He spent approximately 16 yearsfrom the day of his remand in prison custody without trial. On 17th February, 2014, the High Court granted him bail pending the determination of his trial.

There are thousands of cases like the above mentioned. Some are even more pathetic and worrisome.

Towards an Agenda For Urgent Reforms

It is not in doubt that there are already existing blueprints, reports and well-researched opinions and recommendations on our criminal justice system.  While it is common knowledge that our laws in this regard may not have reached its very best, what appears to be more deficient is not really the law but the machineries through which our criminal justice is administered. The law has taken some steps with some laudable provisions to ensure that a person brought to court by way of a holding charge and remanded in prison custody is given serious monitoring to ensure his or her case does not end up like that of Sikiru Alade or Hyginus Ajibo.

The above notwithstanding, the following recommendations are deserving of consideration:

  1. Strict adherence by remanding magistrates and high court judges to the provisions of the Constitution, ACJA 2015 and ACJL 2011 on proper and continuing monitoring of suspects who have been placed on remand by court orders. Section 296 of ACJA 2015 and section 264 of ACJL 2011 have made provisions in this regard. However, section 264(6)(8) of ACJL 2011 altogether violate the time limit allowed by the Constitution to release a person on remand having not been tried within the time allowed. The provisions are unconstitutional and need to be amended urgently.
  2. The Chief Judge or Chief Magistrate, as the case may be, should play a supervisory role on remanding judges and magistrates. In addition to their judicial functions, remanding judges and magistrates should file monthly report to be submitted to the Chief Judge of each State on the number of suspects remanded in prison custody, the dates the orders were made, the dates the orders will lapse, and the necessary follow-ups to be done by prosecutors, the Attorney General or the Director of Public Prosecutions before the next adjourned date.
  3. Monthly or bi-monthly visits by the Chief Judge or designated Judge or Chief Magistrate to prisons to take inventory of suspects in prison custody whose dates of remand have lapsed, but are still in custody awaiting trial or formal charge. Diligent steps as these will reveal the likes of SikiruAlade and Hyginus Ajibo who are still languishing in custody awaiting trial or formal charge before a court of competent jurisdiction.
  4. The Legal Departments in the respective Police Divisional Offices should be formally saddled with responsibility to follow up with police prosecutors on remand cases. The Departments should ensure as a matter of utmost importance that proper preliminary police investigation is carried out before taking any suspect to court for remand. Disciplinary measures should be imposed on any officer or police prosecutor found to have acted in contravention of laid down rules and guidelines before applying for remand orders.
  5. Criminal investigation departments of anti-graft agencies and offices of Directors of Public Prosecutions of Ministries of Justice across the country should also be formally saddled with the responsibility to compile a list of remand cases bi-monthly or on monthly basis, and forward same to the relevant Attorneys-General for appropriate action as provided for under the Constitution.
  6. Comptrollers of Prisons should equally be formally mandated to take and keep records of remand cases and forward same to the Comptroller General of Prisons who in turn will make it available to Chief Judges of Federal and State High Courts and Chief Magistrates for appropriate action as provided for under the Constitution.


Distinguished Ladies and Gentlemen, I have attempted in the few proceeding pages to discuss Holding Charge & Remand in Prison Custody Prior to Trial: An Agenda for Urgent Reforms. While we may not have the most appropriate of laws, if role actors do what is required of them under extant laws, we will achieve a lot in stemming the concerns arising from the use of holding charges and pre-trial remands.

I commend the Nigerian Bar Association, Epe Branch, for creating the opportunity to share my views with this great audience.

I thank you all for listening.

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