Ex Parte Order to Remand is the Same thing as Holden Charge

By Douglas Ogbankwa, Esq., douglasogbankwa@gmail.com

The Nigerian Criminal Justice System is fraught with multiple irregularities. To start with, the system appears to be in an auto-remand mode. We do not count the costs in this country, so we do not even know that for every suspect sent to prison, the Federal Government spends money for every day the suspect is in prison. We should have state governments build and own prisons, so they will know the financial implications of any remand. Many children did not go back to school this September because the breadwinners of their families are in prisons. Many businesses have collapsed because the business owners are in prisons and this leads to unemployment. Every time you remand any body in prison, there are implications that reverberate in the human capital, societal development and business value chains of our society. We must hold town hall to examine these issues. This remand culture must stop. In Nigeria, the law is too strong to catch the weak, but too weak to catch the strong.

The Administration of Criminal Justice Act of 2015 brought about innovations in the criminal justice system in Nigeria. The domestication of the law in some states, however, has left much to be desired.

The most appalling, obnoxious and unacceptable provision in the administration of criminal justice law in some states in Nigeria is the Exparte Order to remand persons in prison or police custody pending “investigation.”. This is even more so as the proof of evidence is not attached to the motion for remand. Also, an inchoate charge is attached to the motion, making the whole process look like a charade or, better yet, a replica of the now phased-out holding charge. A charge that is used to keep a person in a holding facility without the person taking his plea is a holding charge.

The bitter truth is that this procedure is the same as the Holden Charge. In fact, Holden Charge seems better because you are given a right of audience by the magistrate. In this very obnoxious procedure, the counsel is not given a right of audience, most times.

Remanding of suspects without giving them or their counsel an opportunity to be heard in court because the remand is sought by an ex parte order, i.e., an order in which even when your lawyer is in court, he does not have a right of audience or an opportunity to be heard. The most unpleasant human experience, aside from being hospitalized or being 6 feet under, is to be in prison.

It is against the Principle of Natural Justice to send a suspect who is sometimes innocent to prison without giving him an opportunity to say why he should not be there. This is simply Holden Charge being given another nomenclature.

An appropriate question to ask at this juncture is why the prosecutorial authorities will not file a formal charge at the earliest stage, when in most cases an investigation has been concluded, instead of putting people in prison sometimes for no just cause. This accounts for the congestion of prison in Nigeria. Later, we will spend hundreds of millions of Naira giving out prison decongestion briefs to lawyers, whereas we can stop it by just doing the right thing. Nigeria is a self-conflicted country that can turn a thorn to a crown and make a golden crown go brown.

The fact is that most times no investigation is done within this period of remand, as it is just a ploy to keep the suspect in prison, ostensibly based on the Nigerian mentality. We should rejuvenate our criminal justice system and ensure bail is granted as a matter of right for bailable offenses, which should be lenient and also possibly granted for a capital offence in so far as the person meets the condition, which should not be a bond but a lien on an immovable property, together with stringent background checks and security profiling that make it impossible for the suspect to escape as it is done all over the world pending trial. This is international best practices.

The obnoxious and offending Section of the Administration of Criminal Justice Laws of some states is contrary to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) by the 4th Alteration, which provides for fair hearing.

One of the components of the principle of natural justice—Audi Alteram Partem (You Must Hear the Other Side)—originated from the Garden of Eden, where even the omniscient God still gave Adam an opportunity to explain himself after his malfeasance, even when by the Nature of God he knows everything. The Courts have also frowned at this profound injustice.

The Supreme Court in the case of FEDERAL REPUBLIC OF NIGERIA v. ALH, ABUBAKAR MAISHANU AND 2 ORS. LER (2018) SC./51/2015, reiterated the indispensability of the Principal of Fair Hearing in Criminal Proceedings when it stated per Justice I.T. Mohammad J.S.C. (as he then was), thus:

“The cardinal principle of fair hearing, whether in relation to a civil or criminal matter, is so sacrosanct. The Latin maxim puts it this way: “Audi Alteram Partem,” i.e., let the other party be heard. It simply means: hear the other side(s) in a dispute before reaching a decision. It is a constitutional requirement (Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This court made several pronouncements that the principle of fair hearing has been incorporated in our jurisprudence that a man cannot be condemned without being heard. The principle is applicable in all cases in which a decision is to be taken in any matter, whether in a judicial, quasi-judicial or even in purely administrative proceeding involving a person’s interest in a property, right or personal liberty. Let the other party be heard! See: Adigun v. AG Oyo State (1997) ? NWLR (Pt.678) page; Oyeyemi v. Commissioner of Local Government, Kwara State & Ors (1993) 6 NWLR (Pt.299) 344”. PER I.T. Muhammad, J.S.C.

Justice I.T. Mohammed, adumbrated on the issue further in the above-indicated case, thus:

“The primary objective of any court of law is the attainment of justice irrespective of the disposition or approach of a party to the prosecution or in defence of the matter placed before the court. It is the duty of the court to state the correct position of the law on the subject matter placed before it without unnecessarily entering into the arena by making submissions on behalf of any of the parties.”

Could it be said that there is justice for a defendant or suspect to be remanded without being heard. The answer is in the negative.

In this regard, we humbly submit that the continuous remanding of citizens of this country without giving them an opportunity to be heard is at variance and inconsistent with Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), by the 4th Alteration. By the doctrine of covering the field, the principle is an overt illegality that should not be allowed to stand. The Constitution of the Federal Republic of Nigeria is supreme and any state legislation that is at variance with the Constitution is null and void to the extent of its inconsistency with the Constitution.

It is also funny because the same Nigerian judges will not grant an Ex Parte Order for a citizen detained for weeks to be released, but My Lords are quick to remand the same people in the same proceedings even after there are facts that the suspects have been detained illegally for weeks .

This is abnormality in law and in fact, the Court would, by so doing, give a Judicial endorsement for an illegality. If you do not get justice from a Judge when you approach My Lord, what then will you get. It’s time to re-examine our judiciary. It needs some massive cleansing; otherwise, one day the Nigerian judiciary will trigger a war that will end this country.

We call for My Lords Chief Judges of States where this pristine practice persists to graciously look into the possibility of issuing practice directions to stop this illegality as it is against the Principle of Fair Hearing. Motions for remand of suspects should be brought by Motion on notice, or better yet, security agents should grant the suspects administrative bail if they are not a danger to society. Must suspects be remanded in prison custody?

Sometimes, in a matter that pertains to contracts, businessmen running thriving businesses are remanded and when they come out of prison, the businesses are gone with hundreds of persons thrown into the labour market due to an avoidable indiscretion.

Better still, the procedure for remand should be by motion on notice with an abridgement of time to file a counter affidavit and a possible reply to the counter affidavit.

The motion on notice for the institution of remand proceedings should have the proof of evidence attached so that the judge can evaluate the evidence to obviate innocent people being sent to prison and also the judge should give the suspect an opportunity to be heard. The current Exparte applications do not have the proof of evidence attached. It could be used to do mischief without the judge being aware. Having the proof attached to the Motion Exparte for Remand also conforms with the relevant enshrinement of Section 36 of the Constitution, which stipulates that the prosecution should give the defendant all material evidence in the case and adequate time to prepare in order for the defendant to be able to defend himself.

Justice rushed is Justice crushed. We must do the right thing in order to do justice at all times. Remanding a suspect with an Exparte Order is no justice and the former motto of the Nigerian Bar Association prior to the current one is ‘Justicia Omnibus—Justice for all.’

We seek for justice for these remanded persons and those who are to be remanded daily, who are more like victims of a criminal justice system structured to crush the weak. We hope for the prayer sought herein in this write-up to come to fruition soonest. Till then, the advocacy continues. In Nigeria, the law is too strong to catch the weak and too weak to catch the strong .

The wheel of Justice grinds slowly but surely and it is better to set 10 guilty persons free than to imprison 1 innocent person.

The obnoxiousness of a criminal justice system is the calamity of the innocent.

About the Author:

Douglas Ogbankwa Esq., legal practitioner, writer and policy analyst, is the convener of the Vanguard for the Independence of the Judiciary and the Security Situation Room.

Source: loyalnigerialawyer