“What is remand? It means to send to prison or send back to prison from a court of law to be tried later after further inquiries have been made, often in the phrase “remanded in custody”. It also means to
recommit accused on trial to custody after a preliminary examination...the difference between remand and arraignment (is that) the Magistrate orders his remand without arraignment…He can remand the accused in prison. He can also grant bail pending arraignment.” – Per Niki Tobi, JSC in Lufadeju & Anor v. Johnson ((2007) LPELR-1795(SC))
Section 293 (1) and 294 of the Administration of Criminal Justice Act 2015 (ACJA) provide that when a Magistrate Court is satisfied that there is probable cause, a remand order of 14 days could be issued even though the Magistrate Court has no jurisdiction to try the offence. Section 296 of the ACJA permits the Court to extend the duration of the remand order up to a maximum total time of 56 days. Section 295 also provides the option for the court to release the suspect on bail.
There are criticisms about Magistrate Courts making remand orders when they have no jurisdiction to try the offence. Remanding suspects in custody without arraignment is a contributing factor to the congestion of detention centers. The provisions of the ACJA prompt the question as to what are the differences between its provisions on remand and a holding charge. They are both brought before courts without competent jurisdiction to try the offence. They are both to give prosecutors time to complete investigation and draw up charges against the suspect at the High Court. Holding charges have been held by appellate courts in several cases (for instance Olawoye v. C.O.P (2006) 2 NWLR (Pt. 965) 427, Shagari v. C.O.P (2007) 5 NWLR (Pt. 1027) 275, Jimoh v. C.O.P (2004) 17 NWLR (Pt. 902) 389) to be illegal, an aberration and contrary to the fundamental human right to personal liberty.
What may be considered different between a holding charge and the ACJA remand provisions is that the ACJA provides a time limit for remand after which the suspect must be released. The timeline of the remand orders that may be made by the court under Section 296 of the ACJA is as follows-
- Day 1. The court may make a remand order for 14 days.
- Day 15. The court may make a further remand order for 14 days.
- Day 29. The court shall issue a hearing notice on the Inspector General of Police and the Attorney-General of the Federation or the Commissioner of Police of the State and adjourn the matter to be heard in less than 14 days while the suspect remains in custody.
- Day 43. The court may make a further final remand order for 14 days.
- Day 57. The court shall discharge the suspect from custody.
This timeline shows that a suspect who is detained without being charged or released on bail may spend up to 56 days in custody. There is a duty on the courts that grant remand orders to diligently bring up the matter for hearing and make decisions as to whether to extend the remand order or release the suspect. Adherence to the timelines is what makes the difference between a remand order and a holding charge. Failure to release the suspect after the maximum period of 56 days will be an infringement on their fundamental human right to personal liberty. In practice, many suspects do not have the knowledge of these timelines and are likely to languish in custody. An effective case management mechanism by the Magistrate courts will be the antidote.
There are numerous instances where suspects are remanded in custody pending the perfection of their bail conditions. In Charles v. COP Abia State ((2021) LPELR-56547(CA)), the suspect was unable to meet the bail conditions granted by the Magistrate Court and was retained in custody without being charged with the offence. The Court of Appeal was irked:
“How on earth can a Magistrate keep an accused in detention for two years without trial just because the accused had been granted bail? It is not enough for the Magistrate Courts to fold their arms to wait for the prosecuting authority to take the necessary steps. Any accused who has been arraigned before a Court of law is the property of the Court and not that of the prosecuting authority. As such the Court must be watchful in ensuring that the rights of the accused are not trampled upon by prolonging his detention in the course of prosecuting his Case. Doing this will negate the constitutional safeguards of the accused to trial within reasonable time.” – Per Ibrahim Wakili Jauro, JCA.
Charles v. COP Abia State emphasizes the responsibility of the courts with respect to remand orders that have been issued and to ensure that the suspect is not unreasonably kept in detention. Magistrates must strictly adhere to the remand timelines prescribed in ACJA or the applicable State law. The decision emphasizes that a suspect may not be remanded indefinitely just because he is unable to meet bail conditions.
Section 296 (6) of the ACJA provides that after the final remand order that has culminated in 56 days, “the court shall, with or without an application to that effect, forthwith discharge the suspect and the suspect shall be immediately released from custody”. The use of the word “discharge” can be interpreted to mean that there are no conditions such as bail conditions attached to the discharge of the suspect from custody once 56 days have passed.
It is the responsibility of the respective Administration of Criminal Justice Monitoring Committees to ensure that Magistrates adhere to the timelines with the required diligence. The proper exercise of magisterial powers over remand processes reinforces constitutional protection of the liberty of citizens and serves as a check on the potential excesses of the police and prosecutors.