Remand Proceedings: Section 293 Of ACJA 2015 Is Unconstitutional By Basil Momodu Esq.

This write up is a critical review of remand proceedings under
section 293 of the Administration of Criminal Justice Act,
2015, (herein referred to as the Act).

In the context of  section 293 of the Act,
remand means to recommit a suspect to custody after preliminary
examination. Section 293(1) of the Act
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
(Emphasis mine).

The main issue itching for examination is whether a Magistrate
Court who has no jurisdictional competence to try the substantive
case when it is ready, has the legal power to make remand
order.

In other words, is such Magistrate Court “ a court of competent
jurisdiction” envisaged in section 35(5) (a) of the Constitution?
It is important to state that remand orders may not be illegal when
made by courts competent to make them and if made in the spirit of
the Constitution.

A Magistrate Court ought not to have the jurisdictional
competence to make remand order in a case where he cannot try the
substantive case when it is ready. In this respect, the Supreme
Court decision in Lufadeju v. Johnson (2007) 8
NWLR (pt. 1037) 535, is to be a bad precedent.

In Lufadeju v. Johnson, the two issues
before the Supreme Court were whether the Court of Appeal was right
to hold that where the Magistrate Court found that it does not have
jurisdictional competence to try the substantive charge when it is
ready, it has no jurisdiction to make a remand order under
section 236(3) of the Criminal Procedure Law of Lagos State, 1994
and whether the said section 236(3) was
unconstitutional.

The facts of Lufadeju v. Johnson are
that the respondent and twelve others were brought before the Chief
Magistrate by the police on allegation of committing the offence of
conspiracy to commit treason and treasonable felony. The charge was
read to the accused person but no plea was taken and the Chief
Magistrate ordered that the accused person be remanded in custody
pending the time they would be arraigned before a High Court as she
did not possess the jurisdiction to try the substantive offence.
The Supreme Court allowed the appeal reversing the position of the
Court of Appeal.

It is our view, with due respect, that the Supreme Court cannot
be right in view of the provisions of section 35 of the
1999 Constitution. Under section 35(1) (c) of the
1999 Constitution, there are three circumstances under
which interference with the personal liberty of such applicant can
be justified. They are as follows:

1. For the purpose of bringing him before a court in execution of
   an order of a court; or
2. Upon reasonable suspicion that he committed a criminal offence;
   or
3. When it is reasonably necessary to prevent him from committing
   a criminal offence. See Jim-Jaja v. C. O. P. (2011) 2 NWLR
   (pt. 1231) p. 375. See also Ali v. State (2012) 10 NWLR (pt.1309)
   p. 589.

Section 293 of the Act was apparently and
necessarily designed to operate in the context of reasonable
suspicion that the suspect has committed a criminal offence under
section 35(1) (c) of the 1999 Constitution and
thus ought to dance to the constitutional tune of not only
section 35(4) but also of section 35(5)(a) of the
Constitution which defined reasonable time in the context
of availability of court of competent jurisdiction.  It is
crucial to consider against section 293 of the Act
the fact that the availability of “court of competent jurisdiction
within a radius of forty kilometres” restricted the definition of
“reasonable time” to a period of one day in section 35(5)(a).

But paragraph (b) of the same subsection allows a longer period
where there is no “court of competent jurisdiction within a radius
of forty kilometres.” What the Constitution is saying in essence is
that if the High Court is not close by take another one day. If
that is still not enough take a longer period as may be considered
by the court to be reasonable in the circumstance because the
liberty of a citizen is at stake.

What the foregoing provisions of the Constitution necessarily
show in the context and application of section 293(1) of
the Act, is that if a Magistrate has no jurisdiction to
try the substantive offence when it is ready, it is not the “court
of competent jurisdiction” envisaged by the Constitution. Where a
court has no jurisdiction with respect to any matter before it, the
juridical basis for the exercise of any power with respect to such
matter is also absent.

The court’s judicial power can only be exercised where it has
the jurisdiction. See F.R.N. v. Maishanu (2019) 7
NWLR (Pt. 1671) 203 SC. See also Bronik Motors Ltd. v. Wema
Bank Ltd. (1983) 1 SCNLR 296; Ajomale v. Yaduat
(No.1) (1991) 5 NWLR (Pt.191) 257.

It is also important to observe that in section 293(1) of the
Act, there is a deliberate use of the word “suspect” not
defendant.

What this shows is that the provision recognises that under the
remand proceedings envisaged by the Act, the suspect is yet to be
formally charged for the offence for which he is brought before the
magistrate.

The definition of suspect in section 494(1) of the Act means a
person who has been arrested on the suspicion of committing any
offence, and who is yet to be formally charged for that offence. To
this extent, a picture of using the court for the purpose of a
pre-charge detention (inappropriately referred to as “holding
charge”) is portrayed by section 293 of the Act.

Even in a court of competent jurisdiction, pre-charge detention
is not in order where there is no reasonable suspicion. Suspicion
no matter how strong can never ground a conviction in the absence
of cogent and compelling evidence. See Omotayo v.
State (2013) 2 NWLR (pt.1338) p. 235; Abru v. State (2011) 17
NWLR(pt.1275) p. 1; Bozin v. State (1985) 2 NWLR (Pt.8)
465; Idowu v. State (1998) 11 NWLR (Pt.574)
354.

However, where there is a reasonable suspicion in the context of
section 35(1) (c) of the Constitution 1999 pre-charge detention is
lawful when ordered by a court of competent jurisdiction envisaged
in section 35(5) (a) of the Constitution.

By virtue of section 36(5) of the 1999 Constitution, the
constitutionally guaranteed presumption of innocence is extant and
available to an accused person who has been arrested or detained
upon reasonable suspicion of having committed a crime until he is
properly arraigned, tried and rightly convicted by a court with
competence and jurisdiction. See Ahmed v. C.O.P
(2012) 9 NWLR (pt.1304) p. 104.

It is also important to state that before an accused person is
brought before the court, evidence that he committed the offence
for which he is brought before the court must be ready. The case
must be ripe for hearing and not for further investigation.
See Omotayo v. State (Supra); Abru v.
State (Supra).

Moreover, the Nigerian criminal jurisprudence is accusatorial
and not inquisitional. Invariably, an accused person is not
expected to prove his or her innocence. Also he or she is not
supposed to be detained ad infinitum.

Hence, bail is meant to secure the release of a person arrested
detained or charged with the commission of a criminal offence in
such a manner that will ensure his appearance in court for his
trial subsequently.

It does not therefore lie in the mouth of the prosecution to say
that an accused person should not be released on bail but be
remanded because the alleged offence is a serious one when he or
she has failed to arraign the accused before a competent court for
trial.

In Ahmed v. C.O.P (Supra), the court
held that it is the seriousness of the offence that should spur the
prosecution to do or perform its functions timeously and properly
because the liberty of a citizen is at stake.

Under section 293(1) of the Edo State Administration of
Criminal Justice Law, (ACJL) 2016, it is provided:

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 HIGH COURT for remand (Emphasis mine).

Unlike ACJA which provides that an arrested suspect for an
offence which a magistrate court has no jurisdiction to try be
brought before a Magistrate for remand, Edo ACJL provides that such
suspect should be brought before the High Court for remand. The
High Court is a court of unlimited jurisdiction and only the
Constitution can alter the unlimited jurisdiction it donated to the
High Courts of the State and Federal Capital Territory, Abuja, in
sections 257 and 272. See S.C.C. (Nig.) Ltd. v.
Sedi (2013) 1 NWLR    (pt. 1335) p. 230 at 245
– 246.

The draftsmen of the ACJA, 2015, I am sure,
would have taken a cue from section 293(1) AJCL Edo,
2016, but unfortunately, it came later in time.

Basil Momodu Esq. Legal Research and Law
Publishing, [email protected]^[1]