The illegality of the use of exparte order to remand in Nigeria, by Douglas Ogbankwa


The Administration of Criminal Justice Act, 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 Administration of Criminal Justice Law of some states in Nigeria is the Exparte Order to remand persons in prison or police custody pending “investigation.”

The bitter truth is that this procedure is the same as the Holden Charge. Infact Holden Charge seems better because you are given a right of audience by the Magistrates’ Court. 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 Exparte 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 being hospitalised or being 6 feet under, is to be in prison.

It is against tbe principle of natural justice to send a suspect who sometimes is 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 apposite question to ask at this juncture, is why will the prosecutorial authorities not file a formal charge at the earliest stage, when in most cases 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 Naira, giving out prison decongestion brief to lawyers, whereas we can stop it by just doing the right thing. Nigeria is 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 ensure bail is granted as a matter of right for bailable offences 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 check and security profiling that makes it impossible for the suspect to escape as it 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 with out being heard.The answer is in the negative.In this regard, we humbly submit that the continuous remanding of citizens of this country with out 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 abnormally in Law and in fact as the court would by so doing given 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 us time to re-examine our Judiciary. It needs some massive cleansing, else, 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 direction 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 still security agents should grant the Suspects Administrative Bail if they are not a danger to society. Must suspects be remanded in prison custody?

Some times in a matter that pertains to contracts, business men 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 abridgment of time to file a counter affidavit and possible reply to 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, with out 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 of 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 tbe current one is Justicia Omnibis- 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 but 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.

Douglas Ogbankwa, Esq., a Benin based legal practitioner, is the convener of the Vanguard for the Independence of the Judiciary.

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