LEGAL IDEAS FORUM

HOLDING CHARGE: A NECESSARY EVIL BURIED IN OUR LEGAL SYSTEM ALTHOUGH LABELLED AN ANATHEMA

INTRODUCTION

The right to liberty guaranteed in the 1999 constitution of the federal republic of Nigeria is a fundamental right which accrues to all persons. A violation of this right is always taken with utmost seriousness by the Courts of law. In practice, the liberty of suspects is violated by the law enforcement agencies due to lack of evidence by the prosecution, or lack of jurisdiction by the court to entertain the matter. This is made possible by the prosecution filing a holding charge before the court to remand the suspect in custody pending the bringing of a complete charge and evidence for prosecution. In Nigeria, a critical analysis and census of suspect awaiting trial on remand is alarming and frustrating in the criminal justice system.
In this light, there have been unending Conundrum on the subject matter of holding charge. This stems out of the fact that judicial decisions of the 1983 – 1988 has seemed to have made conclusive pronouncement in respect of this matter.
The trending issue that arises are: whether there is any phenomena known as holding charge in the administration of the criminal justice system, if there is, whether its use does not tantamount to an exception to jurisdiction, and whether or not, a holding charge has statutory and constitutional basis. The above issues as received merciless academic and jurisprudential discourse by legal scholars making it clear that it begs for a regime of ‘rest’ because this problem is not yet Uhuru (Kenyan Jargon).
This paper shall X-Ray the present tenor of the law vis-à-vis the reality of holding charge, the pro’s and con’s and it overwhelming influence in the administration of the criminal justice system. 
The present writer acknowledges the provisions of the administration of criminal justice Acts 2015 and other laws in relation to holding charge. This discourse shall be replete with judicial blessings to see the minds and reasoning’s of the courts on Holding Charge and strike a viable submission on the viability or otherwise of the subject matter.
DEFINITION/NATURE
However, for purposes of clarity, I shall give a brevi manu of holding charge. Holding charge and possibly remand or detention in custody is part of the pre-trial stage in the Criminal Justice System. It is therefore a charge brought by an applicant usually the police before a court that lack the jurisdiction to try the matter before it in order to make a consequential order remanding the suspect pending the advice of the Director of public prosecution or the Attorney General.
The black’s Law Dictionary define the term “holding charge” as a criminal  charge of same 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 prevalent trend is that Holding Charge is unknown to the Nigerian Law and there has been widely articulated upon by scholars and the  courts alike.
In Onagoruwa V. State, 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 consult investigations, though there is nothing known to law as “holding charge”. And in Shagari V C.O.P., the court of appeal per Sanusi and Ogbuagu (JCA) noted 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 the Nigerian Judicial system”. Persons detained under illegal, unlawful and unconstitutional document tagged “holding charge” must unhesitatingly be released on bail. See also Enwere V. C.O.P, Ogor V. Kolawale, Johnson V. Lufadeju, Jimoh V. C.O.P. 
In the same vein, the lawyers league for Human Rights in its publication 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 arrangement of the person in the high court upon information being filled by the Attorney General. 
Interestingly, it is observed and rightly submitted that Holding charge is a reality in practice but although known as remand after arrest.
The attitude of the court writers alike was predicated on the fact that in practice the manner of it use and effects on the administration of criminal justice is a distant drum.
CLEANING OF THE AEGIAN:
Without prejudice to the reasoning’s of the courts and writers above, there have been a turn on the tide of authorities by the Supreme Court in E.A. Lufadeju V. Evangelist Bayo Johnson , reversing the judgment of the court appeal in Johnson V. Lufadeju .
In that case, the respondent was arrested on the allegation of committing the offence of conspiracy to commit treason and treasonable felony in the Chief Magistrate Court of Lagos. He sought bail, but the appellant E.A. Lufadeju, Chief Magistrate said she had no jurisdiction to entertain the application for bail, and remanded the respondent in custody. Dissatisfied with this ruling the respondent proceeded to the high court for a judicial review claiming a declaration that the remand was without jurisdiction and thus unconstitutional, and a cost of Five Million Naira for damages. The high court upheld the judgment of the chief magistrate holding that Section 236 (3) of the criminal procedure law empowers the Chief Magistrate to remand persons who may have been arrested for indictable offence. Dissatisfied with this ruling, the respondent appealed to the court of appeal, who in turn allowed the appeal. The respondents now appealed to the Supreme Court. The learned Justices of the Supreme Court unanimously held that by virtue of Section 236(3) CPL, the magistrate was right in remanding the accused in custody pending arraignment and that Section 236(3) in no way violates the constitutional guaranteed right as contained in Sections 32(1) (c), 33(4), (5) and (6) of the 1979 constitution dealing with right to liberty and fair hearing respectively, and even Article 7(1) (b) and (d) of the African Charter on Human and People’s Right.
In this case, page 6 of the Chief Magistrate Court record of proceeding’s read; (2) As Mr. Femi Falana has rightly stated what is before the court is a holding charge pending the filing of information and the arraignment of the accused persons before the courts. As such the court lacks jurisdiction to make any order whatsoever in respect of this case.
I take the liberty to reproduce the words of their lordships in this matter. W.S.N. Onnoghen JSC (as he then was) at page 40 para E – G,  in dealing with the question as to whether a Magistrate has power to remand suspects pending formal arraignment at the High court, hear him –

“ A Magistrate to have jurisdiction to act thereunder, the person to be remanded or possibly granted bail where the court has the jurisdiction to so grant, must have been arrested for indictable offence such as treasonable felony which is outside the competence or jurisdiction of the Magistrate to try. In such a situation the Magistrate is empowered, upon the suspect being brought before him, to 0remand the suspect in custody pending the arraignment of such person before a competent court with the requisite jurisdiction to try the said indictable offence”.

Mukhtar J.S.C. delivering the led judgment stated that 

“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 the need to properly and lawfully keep them in custody, and the only way to this was to take them to a Magistrate 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. Police investigations sometimes take time, and sometimes there is the fear of a likelihood of continued Committal of the same or other offences. There is also the likelihood of interference with investigations. Whilst this process continues or is concluded, the legal advice of the Ministry of Justice is sought”.

Niki Tobi J.S.C. (of blessed memory) noted that “A literal interpretation of Section 236(3) CPL (Supra) shows that it only provides authority for a Magistrate to remand a person who has been arrested”. He then proceeded by saying it would appear to me too that this Section covers what is commonly referred to in the Magistrate court as “holding charge”.
From the above excerpts of their Lordship, it is confidentially submitted that holding charge is legal and has attained the force of law judicially and judiciously.
HOLDING CHARGE, VIS A VIS THE ADMINISTRATION OF CRIMINAL JUSTICE ACT (ACJA) 2015 AND THE 1999 CONSTITUTION
The emergence of the ACJA 2015 is applauded for it ragging grace on the phenomena of holding charge.
For purposes of specificity it is proposed to replicate the provision in extension.
By virtue of Section 293(1): A suspect arrested for an offence which a Magistrate court has no jurisdiction to try shall within a reasonable time of arrest be brought before a Magistrate court for remand. Sub(2) provides for the manner of procedures.
Furthermore, Section 296 of the same Act provides for Time and Protocol for remand orders. A sum up of the provision reveals the fact that remand can only be made for 14 days, and in case of extension due to exigencies 42 days and no more, which is in consonance with Section 35 (5) which provides for remand up to 2 or 3 months.
This is clear, the gist is that the time for remand is in tandem with the time provided for in the constitution and so therefore there is nothing contradictory of the ACJA vis-à-vis the constitution.
It is on this note that I beg to align myself with the views of Prof Fagbohun  stated that Section 293-299 of the ACJA does not contradict the constitution. Interestingly, Mike Ozehkome SAN argued in one of his articles stated that “aside the fact that Section 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 counts of the land to be patently illegal, unconstitutional, null and void’’
With utmost deference and preference to the learned silk, firstly the issue pertaining to Section 35(5) 0f the Constitution has been settled above, Secondly, Section 293(1) of the ACJA only provides that “A suspect arrested for an offence which a Magistrate court has no jurisdiction to try shall within a ‘reasonable time’ of arrest be brought before a Magistrate court for remand (emphasis mine). The ACJA did not define a reasonable time, so a reasonable time should be interpreted as a reasonable time within the provision 0f (in Section 35(4) that is 24 to 48 hours. Thirdly, the Supreme Court in Lufadeju’s  case [Supra], had given approval to remand after arrest by the Magistrate court’s, so that should not be an issue.
Therefore, it is my submission, that holding charge has constitutional and legal basis in the present Nigeria Law.
PROS OF HOLDING CHARGE
The advantage of holding charge are:
Shortage of Constitutional guaranteed time to institute action: I take the liberty to ask a question, when a person is suspected of committing a criminal offence and is actually caught hold off by law enforcement agencies, and taking the suspect to a court of competent jurisdiction is practically impossible alongside the fear of keeping him for more than the reasonable time as prescribed by the constitution, I ask, should the suspect be left to go? .Construing the nature and circumstances of the Nigeria Criminal Justice System, of Course the answer should be no; this is why in the words of Dr. Olu onagaoruwa  “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”. And I heard a commentator writing “Therefore, we should not sacrifice the fundamental right to personal liberty of presumably innocent citizens on the altar of Crime Prevention”. So I ask again, should we rather sacrifice the prevention of Crime (Safety) for the fundamental liberty of suspects? Construing the fact that Section 14(2)(b) of the 1999 constitution states that the Welfare and Security of the people shall be the priority of government.
It is observed that although we have two important model criminal processes, which are due process model and crime control model, credence should be given to the Crime Control Model in respect of holding charge. This is without prejudice to the due process model which proposes that crime prevention be done strictly according to law, reasons being that in the society heinous crime like murder, arson, treason etc, are usually carried out in remote jurisdiction by recidivist and so following due process would lead to escape and attendant freedom of suspect thereby further polluting the societal security. Applauds should be given to the Lagos State government who deemed it fit in 1979 to promulgate the Administration of Justice (miscellaneous) provision Edit, amending Section 236 Criminal Procedure Law of Lagos State by adding sub-section 3 which empowers Magistrate to remand after arrest. It is perhaps, for this reason that I submit that a Holding charge is a necessary evil in our Legal System albeit labelled an anathema.
The Legal incapacity of the police to grant bail to criminal suspect with respect to certain offences like murder, rape, treason, arson, etc. So in order not to let an accused person to stay beyond the reasonable 24 and 48 hours, resort is made to getting the order of a Magistrate to remand, See the immortal words of Mukhtar JSC in Lufadeju’s Case (Supra).

CONS OF HOLDING CHARGE
The ugly side of Holding charge tends to pertain more to the challenges and inefficiency that have characterized the administration of Criminal Justice System in Nigeria. Professor Fagbohun (Supra) highlighted them to include, deliberate and negligent abandonment of pretrial suspect in prison custody which ultimately results to prison congestion; lack of follow-up of remand cases by remanding judges/magistrate as required by the law; lack of or poor investigation of criminal allegations by police officers before application for remand orders among others.
RECOMMENDATIONS
It is acknowledged that there are Plethora of recommendation in respect of the suspect matter, but as earlier noted, the problem is not the law, in fact I appraise the laws and procedures of holding charge especially Section 295 of the ACJA 2015 which empowers the courts to even grant bail in remand proceeding; the gravamen is with the institutional machineries set forth to implement this laws.
I hereby recommend as a sum up that, the institutions ranging from the Judicial Officers, Legal Departments in the respective Police Divisional Offices, Criminal investigation departments of anti-graft agencies, Directors of Public Prosecutions, and Controllers of Prisons should take a pro-active step and be vigilant towards ensuring that Holding charge is used within it constitutional and statutory bounds in order not to violate the fundamental rights of the citizens. This should be done through routine visit by the Chief Judge and Chief Magistrates of the State’s, demand for reports of remand person by Judicial Officers, steadfastness by prosecutors, quick release of advice by the D.P.P. and Attorney General, building of more high courts divisions in remote areas across the country.
CONCLUSION
In concluding this paper, I take the liberty to replicate the immortal words of his Lordship Andrew Atutu-Obaseki J.S.C. (of blessed memories) in Odi V. Osafeli when he stated thus “laws are made for men and not men for laws”.
Therefore Legal Scholars should not be so keen on the law but the law as it relates to the convenience of it objective or purpose in order not to accompany hardship on the people which is the reason why the laws are being made. The laws should always be weighed on a Scale of probability vis-à-vis to the society if not there is bound to be failure. Holding charge is a necessary evil in our Legal System albeit labelled an anathem.
ABOUT THE AUTHOR 
Mbang Confidence (S.A.S) is a final year student of the faculty of law University of Calabar, a paralegal of the Godwinson Churchill and co law firm Calabar, he has passion for exploring the law with his Articles and Agitations.
For more info: Mbangconfidence714 @gmail.com
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