THE PRACTICE OF HOLDING CHARGE BY PROSECUTION: THE POSITION OF THE LAW IN NIGERIA

By AKILU SAADU

Introduction

The police, as one of the actors of criminal justice in Nigeria, has the primary power or assignment of arrest and detention of criminals and suspects and the subsequent prosecution of every person alleged to have committed a crime or breached any provision of our laws (See section 4 of the Police Act).

But, this security institution has for some reasons known to it, evolved with a practice called "holding charge" against the Defendant pending the investigation of the case against the suspect.

Therefore, this article tends to x-ray the prosecutorial powers of police and the position on "holding of charges" against a defendant.

POWER OF THE POLICE TO PROSECUTE OFFENDERS

The Nigerian police force constitutes one of the law enforcement agencies under the watchful eyes of the Attorney General by virtue of the provision of the constitution (see the general provision under section 211 and 174 of the 1999 constitution and section 104 of the Administration of Criminal Justice Act, 2015).

Therefore, the police have a legal capacity to prosecute a matter before any court of law in Nigeria, whether in his name or the name of the Attorney General. (See the case of FRN V OSAHON & ORS (2006) LPELR–374(SC) and the case of IBEGHIM V COP ABIA STATE & ANOR (2021) LPELR–56548(CA)).

By the provision of section 23 of the police Act, which is the federal law governing the conduct of the police force in Nigeria. It provides:

"Subject to the provisions of sections 174 and 211 of the Constitution of the Federal Republic of Nigeria 1999 (which relate to the power of the Attorney-General of the Federation and of a State to institute and undertake, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria), any police officer may conduct in person all prosecutions before any court, whether or not the information or complaint is laid in his NAME."

Evidently, police conduct most of the prosecution at the magisterial level in court and most of the offences are criminal since magistrate courts have jurisdiction over certain criminal matters by the provisions of the Administration of Criminal Justice Act, 2015 (ACJA, 2015).

The Court of Appeal per my noble lord, Niki Tobi JCA (as he then was) of blessed memory held in the case ONAGORUWA V. STATE (1993) 7 NWLR Part 303 Page 49 AT 107 Para G-H:

“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 of investigation..."

So what is this holding charge?

MEANING OF HOLDING CHARGE

According to Black’s Law Dictionary, a holding charge implies a criminal charge of some minor offence filed to keep the accused in custody while prosecutors take time to build a bigger case and prepare more serious charges.

Adekola succinctly explained the meaning of holding charge as a system of bringing an accused person before an inferior court that lacks jurisdiction to try him or her for the primary purpose of securing a remand order and thereafter abandoning him or her in prison under the pretence of awaiting trial.

Therefore, holding charge is the novel practice by the law enforcement agents, usually police, to bring a suspect before a magistrate court for an offence which it lacks jurisdiction to entertain for recognizance in order to obtain a remand order pending the conclusion of investigation and reception of advice from the ministry of justice. This strange practice is devised by the police in order to eschew the hook of law for not fulfilling the requirements of section 35(3) of the 1999 constitution which mandates the arresting agency to bring the suspect to court within a reasonable period of time.

Usually, the police or generally prosecutory agency camp under the shade of "remand proceedings" provided under section 293(1) of the Administration of Criminal Justice Act, 2015 which provides:

"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"

And section 294(1) of the same Act which empowered the magistrate court to grant such ex parte motion where there is a probable cause to remand the suspect pending the receipt of advice from the ministry of justice for proper prosecution.

Under this guise, the accused does not have the right to take a plea (whether a guilty plea or not); instead, the police prosecutor applies for an adjournment for the purpose of forwarding the case file to the office of the Director of Public Prosecution (DPP) for further legal advice.

WHAT IS THE POSITION OF THE LAW

The practice of holding charge has become a custom of most prosecutors, mostly the Nigerian police, to the extent that one with a little legal perspective may see it as constitutional or legal. The legality or otherwise of holding charge has been settled in a plethora of judicial pronouncements or decisions.

In order to determine the legal consequences and position of holding charge in our adversarial criminal justice system, the court held in the case of SHAGARI V COMMISSIONER OF POLICE (2007) 5 NWLR (PT 1027) 275 that:

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

Similar encapsulation was made by the court in the case of OLAWOYE v COMMISSIONER OF POLICE (2006) 2 NWLR PT 965 page 427 where the court strongly reached the illegality of arraigning a suspect before a magistrate court under the guise of an inimical phrase of "holding charge".

In addition, the court made an equal vindication of the rights of a suspect under the Nigerian criminal justice system by disparaging this horrible and unconstitutional action of the police in the case of ANAEKWE V COP (1996) 3 NWLR (PT436) 320 per Niki Tobi, where it was noted:

"it is not, in my humble view, the function of the prosecutor (sic) to rush a charge to a magistrate's court, a court which has no jurisdiction to try murder cases, and play for time, while an investigation is in progress. I HAVE SAID IT BEFORE AND I WILL SAY IT AGAIN THAT THE UNIQUE PHRASEOLOGY OF A "HOLDING CHARGE" IS NOT KNOWN TO OUR CRIMINAL LAW AND JURISPRUDENCE. IT IS EITHER A CHARGE OR NOT. THERE IS NOTHING LIKE "HOLDING CHARGE"."

Obviously, the practice of holding charge paints in black the Nigerian judicial system; and it further undermines the very canon of justice and distorts the sacred pillars of natural justice and fair hearing under the revered 1999 constitution. This practice fertilizes the hopelessness of indigent Nigerians over the Nigerian judicial system. Thus the court per MUNTAKA–COMMASSIE, JCA declared in the case of BOLAKALE V STATE (2005) LPELR–6216(CA) that:

"It is an aberration and abuse of judicial process for an accused to be arraigned before a magistrate's court for an offence for cognizance over which it has no jurisdiction only for the accused to be remanded in prison custody. The accused is neither being tried nor any proper charge brought against him before a competent court for trial. It is clearly an infraction on the rights to fair hearing and liberty of the accused person (section 35 and 36 of 1999 constitution). It places the accused in a position of hopelessness as to how to enforce his right".

This position is also readopted by the court in the case of CHARLES V COMMISSIONER OF POLICE ABIA STATE (2021) LPELR–56547 (CA).

Where the police have no evidence to prosecute a suspect, the best step to take is to abandon the matter and throw in the towel (see the case of ONAGORUWA V. STATE (supra)).

In a synopsis, the practice of holding charge, as has been recognized and held in copious decisions of the Nigerian courts, is unconstitutional, unlawful and novel to the Nigerian criminal and judicial system. Thus, any person whose detention in a correctional facility is premised under the holding of charge has his constitutional or rather inviolable human rights flagrantly violated.

IS THERE A REMEDY ?

The law is not blind to the ordeal of a suspect in Nigeria. Where an accused is detained unlawfully by the police or any prosecutory agency serving under the guidance or superintendence of the Attorney General without a reasonable cause and particularly, under the phrase of "holding charge" is entitled to damages and public apology pursuant to section 35(6) of the 1999 constitution which states:

"any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person ....."

Subsequently, the high court is the proper court to seek redress pursuant to section 46 of the 1999 constitution and Order II Rule 1 of the Fundamental Rights Enforcement Procedure Rules, 2009.

SUGGESTION OF THE WRITER

Indeed, the Nigerian prison is overpopulated by mostly people who have no reason, in one way or the other, to be there, but because of this practice. The gross population of the inmates has made the prison unsuitable and inconvenient for any human survival. Thus, the writer suggests the following measures in order to redirect the criminal justice system to a right course and revamp the structure of justice delivery within Nigeria:

1. First, the Section which empowers the magistrates to give a remand order should be either expunged or reconstructed in the ACJA in order to check the inaction of police and to reduce the number of people detained in the name of holding charge.
2. Second, a law or order should be made restraining every untrained police officer from conducting trials at a magistrate's court; and a lawyer should be hired or attached to every police station for the conduct of trials of offences.
3. Third, exemplary damages should be imposed on the prosecutory agency for detaining a suspect in the name of holding charge.
4. Fourth, the Attorney General should always make an inquiry on the files of cases at the police station. After all, it is his duty to do that. (See generally section 29 of the Administration of Criminal Justice Act, 2015).

CONCLUSION

The police serve as the pivot of the Administration of justice in Nigeria and all over the world. It has the duty to ensure a just trial and not to suffocate the defendant by creating inhibitions and blocks towards justice dispensation.

The law is unambiguous that holding charge is a practice not envisaged in our jurisprudence and common practice. It is therefore, as we have seen above, unconstitutional, unlawful and in total collision with the fundamental principles of natural justice.

At the end, the police must note that refusal to do what the law requires one to do is equally a crime. Thus, in the case of OJO LOCAL GOVERNMENT V INEC (2007) 38 WRN (p.31) 48, the court held inter alia that: "... Where an Act makes mandatory stipulations the Operators of the Act must comply strictly with such provisions."

In this respect, repudiation by the police to take a defendant to the appropriate court is also a crime which equally attracts punishment.

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AKILU SAADU, is a student of the faculty of law, Ahmadu Bello University Zaria and the Assistant Director of Research and Publications of the ABU Law clinic. He can be reached via +234 704 611 2021.