~ Femisi Agboola, Esq, and Ujong Okpa, Esq

Introduction

“The concept of a person’s rights, for example, is basic to legalism. It’s one of the most powerful formulators in gaining and sustaining popular support for the operation of the legal system. The common understanding of this concept is that law takes the side of the people against the government or other systematic injustice. This uncritical view is elaborated upon in law school and throughout the legal system. Actually, however, once one understands that the central concern of legalism is with the maintenance of its own power system, one sees that law only appears to take the side of the people. In fact, the real concern of legalism in its recognition of popular claims of right (civil rights, etc.) is to preserve the basic governmental framework in which the claims arise” [1]

The above quote will only appear conclusive when one is besieged by the nature of law in our society and the corresponding reality. It will also be conclusive when one considers the question, ‘is law and justice not just a pair of shoes?’ It is presupposed that law primarily exists to stand as an obstacle to injustice and the stunning reality is that law permits injustice. Law permits injustice when such law is stagnant, illusive to change, unbending to the changing reality and is used as a tool for the execution and perpetuation of unlawful acts.

One of such injustices as it exists in our legal system is the concept which has become known as holding charge. Holding charge as defined by the tenth edition of the Black Law’s Dictionary is a criminal charge of some minor offences filed to keep the accused in custody while prosecutor takes time to build a bigger case and prepare more serious charge. In Nigeria’s legal parlance, however, holding charge has been shown to be a charge brought by the police or other law enforcement officers against an accused person before an inferior court that lacks jurisdiction to try the offence charged pending the receipt of legal advice from the Attorney General’s Office to recommend the accused person’s trial in a court of competent jurisdiction or tribunal set up to try that particular offence. [2] Through judicial pronouncements and legislative creations, the concept of holding charge will be exposed for the purpose of declaring it antisocial and amoral in the face of a growing human rights conscious society.

‘Holding Charge’ Explained

A holding charge is the practice of filing a charge and arraigning a criminal suspect before a Magistrate which lacks the jurisdiction to try a case. [3] Holding charge, as is peculiar to Nigeria, generally occurs in cases where the commission of a crime has not just been alleged but is also the direct cause of action. The crime alleged in holding charge practices is more often a felony or a capital offence. [4] This way, only the High Court or Federal High Court is abreast with the jurisdiction to properly hear the substantive suit. Consequently, ‘Lower Courts’ such as the Magistrates Court, the Area Court and the Upper Area Court would lack the requisite jurisdiction over such offences and entertaining them by arraignment or unreasonably long detentions makes such a practice or proceeding unlawful and illegal.

In a holding charge, lower courts, knowing they lack the jurisdiction to hear such matters, often resort to the option of taking cognizance of the offence and remanding the alleged suspect or accused in custodial centers on the First Information Report (“FIR”) filed by the Police or Complaint made by a Complainant. Holding charge, therefore, involves not only the Judge as an embodiment of the Court, but also Police Prosecutors who know or are presumed to know that the Court lacks the jurisdiction to hear the matter and therefore ought not to be the ground for its initiation or institution. [5]

Holding charge is often brought under the guise of “remand proceedings” but may be distinguished from the later. Although used interchangeably as their elements could look similar, both concepts differ in facts. A remand, also known as pre-trial or pre-charge detention, is the consequential order of the court which sends a suspect to prison until further enquiries are made for the trial. In remand proceedings, the suspect does not take his plea and is often detained for a short period of time, subject to the court’s discretion to extend such detention time, upon a reasonable suspicion that he committed a crime. [6] Unlike holding charge, remand is constitutionally supported under section 35(1) of the Constitution, and in Lufadeju v. Johnson, [7] the Supreme Court declared the pre-trial detention constitutionally valid and laid to rest the controversy between the two concepts. [8] However, where the period of detention is unreasonable, such will tantamount to holding charge.

Although defined earlier, real time facts will prove imperative in expounding the concept. Here are practical scenarios:

Skiru Alade was born in Nigeria in 1975. He was self-employed as a panel beater in Lagos before his arrest. On or about March the 9th 2003, Alade was arrested near the old Lagos toll gate area by a police officer in ordinary clothes, who neither disclosed his identity nor gave any reason for the arrest. The policeman then forcefully dragged Alade to the Ketu police station in Lagos State, where he was detained. Pursuant to the Holding Charge, on May 15th 2003, a Magistrate ordered Alade to be remanded in custody pending investigation and arraignment. [9] He was then held at the Kirikiri Maximum Security Prison Apapa, Lagos, for nine years and six months without arraignment or trial. Encouragingly, on September 18, 2012, following the judgment of the ECOWAS court and a review by the Chief Judge of Lagos, he was released. [10]

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

The Ordeal

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. [11]

With this data, the truth remains that holding charge infringes and has infringed directly on the fundamental right of the suspect who is entitled to his liberty and be brought before a competent court within a reasonable time, and transcends to other areas. These implications of ‘holding charge’ on the victim is best termed an ‘ordeal’. The ordeals of Skiru Alade and Hyginus Ajibo may be imagined, for example. On the least, the ordeal of the victim of holding charge (the suspect or accused) includes presumption of guilt without fair hearing, restriction of movement, physical brutality, mental deterioration, health hazards exposure and financial downgrade.

The Reaction

The incessant practice of holding charge in our legal system, in the wake of the ordeal, seems to have been receiving some attention from the judiciary world, an attention which is geared on the legality of the procedure which begets the practice of holding charge itself. This attention takes root from the fundamental rights tenets of the Constitution, right one of which is the right to be at liberty without unlawful restrictions.

The idea of right to liberty, itself, is a core democratic principle that negates every form of illegal detention. It’s the very spirit upon which the English common law prides itself which have birthed various rights such as Habeas Corpus and Bail. Section 35(1) of the Constitution [12] guarantees both the right to liberty of an individual and the exceptions to this right. Of all the exceptions, none suggests the fact that an arrested person, charged without due investigation should be denied his/her fundamental right to liberty. In fact, it is a gross misnomer for the police to detain and prosecute without a probable evidence as it negates the very duty of the Criminal Investigation Department, a critical organ of the police force.

In furtherance of the right to liberty, section 35(4)(a)(b) of the Constitution [13] instructs: “Any person who is arrested or detained in accordance with subsection 1(c) of this section shall be brought before a competent court of law within a reasonable time, and if he’s not tried within a period- two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail or three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceeding that may be brought against him) be released either unconditionally, or upon such conditions that are reasonably necessary to ensure that he appears for trial at a later date.”

‘Reasonable time’ has been written to be one day or two days or on the period permitted by the court all depending on the peculiarity of the case. [14] This partly concludes the notion of unconstitutionality of the outright detention of an individual.

The illegality of ‘holding charge’ is also unlawful with sights on our regional international laws. The African Charter for Humans and Peoples Right in Articles 6 and 7, for instance, ensures the right to liberty and freedom from arbitrary detention and the right to be heard within a reasonable time.

‘Holding charge’ has become an unbending concept whose legality has also been the subject of judicial review wherein the Courts have declared it unlawful, unconstitutional and unknown. In the case of Olawoye v. Commissioner of Police, [15] the Court of Appeal, held, per Abdullahi, JCA, as follows:

“The arrangement before a Magistrate court tantamount to holding charge which has been described as unconstitutional and illegal by this court. In the case of Enwere v C.O.P(Supra) it was held that holding charge is unknown to Nigeria law and an accused detained thereunder is entitled to be released on bail within a reasonable time before trial more so in a non- capital offence.”

The same penultimate Court re-echoed this position in the case of Shagari v. Commissioner of Police, [16] where it held:

“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 (more so in non-capital offences). A holding charge has no place in Nigerian Judicial system. Persons detained under an ‘’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 to the time the high court heard their motion for bail. The above amounted to special circumstances for High court to admit them to bail, but by continuing to detain them on a ‘’holding charge’’ was not a judicious exercise of discretion. See Enwere v C.O.P (1993) 6NWLR (PT 299) 333; Jimoh v C.O.P. (2004) 17NWLR (PT 902) 389; Ogori v Kolawole (1985)6NCLR 534; Onagoruwa v State (1993) 7NWLR (PT 303) 49, Oshinaya v C.O.P. (2004) 17NWLR (PT901)”

In the earlier decided case of Anaekwe v. Commissioner of Police, [17] the Court of Appeal had grounded the following, through Niki Tobi, JCA (as he then was). Thus:

“The function of the prosecution is not to rush a charge to a magistrate court, a court which has no jurisdiction to try capital cases and play for time while investigation is in progress. I have said it before and I will say it again that the unique police phraseology of a holding charge is not known to our criminal law and jurisprudence. It is either charge or not. There is nothing like holding charge.”

The Repair

The aberrant practice of holding charge raises quite a number of fundamental issues and ignites the questions about the point in which the Police are expected to institute an action in court after effecting an arrest, the duty of the judge in the event that he is made an adjudicator in a matter of holding charge, the legal justification for having an offence intentionally instituted at the wrong court, and the institutional adjustments to be made.

Section 31 of the Police Act [18] provides that where an alleged offence is reported to the police or a person is brought to the police station on the allegation of committing an offence, the police shall investigate the allegation in accordance with due process and reports it’s finding to the Attorney General of the Federation or of a state, as the case may be, for legal advice. Then, an arrest is to be effected after preliminary inquiry or investigation and the issuance of a legal advice issued from the office of the Attorney General of the State.  This is the recognized procedure and not otherwise. Following this avoids the institution of a matter in court which has no jurisdiction in a rush to prosecute the alleged offender.

It is worthy to put upfront that the arrest contemplated here are those where warrant is a prerequisite and not those without warrant. The Police, as that branch of the executive charged primarily with the maintenance of law and order and the enforcement of the law in the same breath, [19] are granted the power to investigate, make an arrest and prosecute a matter in court. While it generally needs a warrant to effect an arrest, the police force is empowered by section 38(1) of the Police Act [20] to make an arrest without warrant under certain circumstances, two of which are when the alleged offender is found committing the crime and where there’s a clear suspicion as to the person who commits an offence and other conditions as stipulated by law. Same is permitted in the Administration of Criminal Justice Act (“ACJA”), the Criminal Procedure Code and the Criminal Procedure Law (“CPC”) and the (“CPL”). [21] Arrests with warrant are expected to be issued by the Court, a Justice of Peace (JP) or a Superior Police Officer upon the completion of a clear and concise investigation. Where the Alleged offender is arrested in the scene of the crime while committing the crime, the need for further investigation is unnecessary. Anything below or beyond that is a nullity.

On a different stretch, the law mandates the judge before whom a holding charge suit is brought to decline jurisdiction and direct the FIR or Complaint to the proper court clothed with jurisdiction. [22] The different provisions make this mandatory and does not require either the alleged offender, the Accused or his counsel to raise a written or oral preliminary objection before this is recognized. It is unlawful, then, for a court with no jurisdiction over a matter to take cognizance of the matter, as has become the practice of Lower Court judges today. A mere adherence to the requirements of the law will help throw this unconstitutional practice to the confines of extinction which will ultimately dissuade prosecutors from instituting matters untimely and at the wrong places.

The legal justification for the continuity of holding charge has been fear that the alleged offender who was not arrested on the crime will tamper with evidence or be at large as at the time the Legal Advice is ready and the carefulness of bringing the alleged offender before a court on time as stipulated by the Constitution, the jurisdiction of the Court notwithstanding. Suffice to say with deference that these justifications are both baseless and ironically unjustifiable. First, investigations when carried out do not need to be carried out in a reasonable suspicion of the alleged offender or allies. Secondly, in a bid to bring the alleged accuser before the court of within a reasonable time, due diligence can be taken to ensure that the matter is brought before a court with competent jurisdiction who can lawfully take cognizance.

In a bid to further make well the ills in the system by taking a heed at Prof Fagbohun’s recommendations, [23] it is advised that strict adherence by remanding Magistrates and High Court Judges to the provisions of the Constitution and other relevant procedural laws on the subject matter, the Chief Judge or Chief Magistrate should play a supervisory role on remanding judges and magistrates making it a duty to visit Correctional and Custodial Centers to take inventory of suspects in prison custody whose dates of remand have lapsed, the Legal Departments in the respective Police Divisional Offices should be formally saddled with responsibility to follow up with police prosecutors on remand cases, and the Comptrollers of Custodial and Correctional Centers should equally be formally mandated to take and keep records of remand cases and forward same to the Comptroller General of Correctional Centers 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.

Conclusion

It is the fundamental right of every citizen of Nigeria to be free from unlawful restrictions, inhuman treatments and other unconstitutional practices as guaranteed by the Constitution and the African Charter, and the practice of holding charge is one that falls short of these rights. It is about time our democratic values evolve and the knowledge of the law, its principles and its application fully understood and imbibed especially in its relation holding charge. While this may be through reformative trainings for the Police, there should be created a perfect synergy between the Bar, the Bench and the Police Force. These forces should be a uniting agent in promoting the rule of law and weeding out any form of unconstitutional practice. An eradication of holding charge will indeed reduce the number of inmates awaiting trial which will lead to a consequential decongestion of the correctional facilities in the country.

While the recommendations await application and holding of charges subsists, anyone who is at the mercy of holding charge should be aware of his or her right to bail under the law pending the institution of the matter in the proper court, as well as his right to institute a fundamental human right action distinct from the holding charge suit.

End Notes

[1] See https://blogs.umass.edu/demco/about/more-quotes-nabout-law-and-society assessed 30/12/2020

[2] See https://www.premuimtimenng.com/features-and-interviews/195426-a-holding-charge-is-patently-illegal-under-the-constitution-part 1:html assessed 29/12/2020

[3] See “Constitutional validity of Pre-charge Detention of Suspects by Femi Falana https://opinion.premiumtimesng.com/2016/02/09/171032-2/ assessed 5/1/2021

[4] A felony is a crime whose punishment, without proof of previous conviction, ranges from three years and life imprisonment to death penalty. Capital offences, on the other hand, are offences whose punishment on conviction are death sentences.

[5] As succinctly explained by Justice Niki Tobi, JCA as he then was in the case of Onagoruwa v. The State (1993) 7NWLR (PT 303) 49: ‘’It iss an elementary but most vital requirement of our adjectival law that before the prosecution takes the decision to prosecute, which is a forerunner or pre-cursor to the charge decision, it must have at its disposal all the evidence to support the charge. In a good number of cases, police in this country rush to court on what they generally refer to as holding charge.”

[6] See secs. 293-299 of ACJA

[7] (2007) 8 NWLR (Pt.1037) 535. 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 which upheld the decisions of the Magistrate Court and High Court.

[8] See sec. 293(1) ACJA, sec. 364(1) ACJL

[9] The Magistrate therefore cannot order his release and has no option under the law but to remand him in custody on the basis of a holding charge, without any determination whether they are sufficient grounds for detention.

[10] See https://www.justiceinitiative.org/litigation/alade-v-federal-republic-nigeria assessed 2/1/2020

[11] See https://dnllegalandstyle.com/2017/read-full-text-prof-fagbohuns-paper-holding-charges-remand-prior-trial/ assessed 5/1/2021

[12] Constitution of the Federal republic of Nigeria (CFRN) 1999, as amended.

[13] Ibid

[14] Ibid at 35(5)(a)(b)

[15] (2006) 2NWLR (pt 965) 427 at 442-443, paras H-A (CA)

[16] (2007) 5NNWLR (PT.1027) 275 AT 298 paras. C-G 302 Para. G-H, per Sanusi, JCA

[17] (1996) NWLR (PT.436) 320

[18] The Police Act 2020

[19] Ibid at sec. 4

[20] Ibid

[21] See sec. 18 of ACJA and sec. 26(a)-(m) of the CPC, sec. 55 CPL

[22] See sec. 151 of the CPC.

[23] Supra at (n) 11

*The authors, FEMISI AGBOOLA, ESQ, and UJONG OKPA, ESQ are human rights advocates who write for Deew Foundation and may be contacted via deewfoundation@gmail.com

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