Infringing the fundamental rights of a suspect: Addressing remand proceeding in Nigeria

BY FAROUK OBISANYA

In dressing up the Nigeria legal system, the English law forms a substantial part of the legal fabric. Hence, the similitude in the Nigerian justice system with the United Kingdom. Out of the many legal procedures modelled after the English law system is the focal point of this piece: remand proceeding, which is common at the Magistrate Court in Nigeria. 

Against the backdrop of detaining a suspect beyond the constitutionally required time before arraignment in the appropriate Court, the Police or any security agency saddled with the responsibility of investigating and prosecuting crime, while making inquiries to ascertain the crime committed, applies to Magistrate Court for such suspect to be remanded.

The Court in Lufadeju & Anor v Johnson (2007) LPELR-1795(SC) stated that “remand” 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.” Also, it means to recommit on trial accused to custody after a preliminary examination.

Remand proceeding is a way of detaining a person who has been charged with a crime until trial; such person may be remanded until conviction or acquittal – this is applicable in capital offences.

From a cursory look, a remand order in a Magistrate Court paradoxically denies a suspect the right to bail in the same court.

Substantively, the Constitution of the Federal Republic of Nigeria 1999 (“CFRN”) is the supreme law of the land where other laws derive their efficacy. If the Constitution then guarantees fundamental rights viz right to personal liberty and fair hearing, is a remand proceeding not an anathema?

Under section 35(1)(c) of the CFRN, the right to personal liberty will be curtailed “for the purposes of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.” On the flip side, section 36(5) of the CFRN provides that, “every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”

Placing these two sections side by side, it can be gleaned that one gives the leeway for remand and the other frowns at it. Should a suspect be remanded when same has the right of presumption of innocence and must be “brought” before the court within a reasonable time?

Attending to section 35(4) of the CFRN, “any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time…”. Without preempting the mind of the court, the underlined word will be opened to a floodgate of interpretations. Applying the mischief rule of interpretation, can it be said that the legislators intended “arraignment”? Most likely, it will be agreed that “brought” does not mean “arraigned”.

That said, when a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a Court, such shall, subject to the provisions of the law, be entitled to bail. In Suleman & Anor v. COP Plateau State (2008) LPELR-3126(SC), the Supreme Court held amongst other that, the right of bail, a constitutional right, is contractual. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.

Nonetheless, by law, an accused person charged with a capital offence is not ordinarily admitted to bail as a matter of course. This means that beyond the general criteria to guide a Judge in the exercise of his discretionary powers in deciding whether or not to grant bail to an accused person. In capital offences there is the extra need for special or extraordinary circumstances to be established before admittance to bail could be a possibility. See Adeleke v. State (2018) LPELR-45242(CA).

A capital offence is a crime that is treated so seriously that death may be considered appropriate punishment.

By section 161 of the Administration of Criminal Justice Law 2015, a suspect arrested, detained or charged with an offence with death shall only be admitted to bail by a Judge of the High Court, under exceptional circumstances. Exceptional circumstances include ill health of the applicant which shall be confirmed by a qualified medical practitioner employed in a Government hospital, provided that the suspect can prove that there are no medical facilities to take care of his illness by the authority detaining him; extraordinary delay in the investigation, arraignment and prosecution for a period exceeding one year; or any other circumstances that the Judge may, in the particular facts of the case, consider exceptional.

Having established that bail is hardly granted in a capital offence, is the refusal of such application not a flagrant breach of the right to presumption of innocence?

In furtherance to this, section 293 of the Administration of Criminal Justice Law 2015 provides that “a suspect arrested for an offence which a court has no jurisdiction to try shall, within a reasonable time of arrest, be brought before a magistrate court for remand.” Knowing that a Magistrate Court has no power to adjudicate on capital offences, should the remand proceeding in such court not be null and void?

It hardly needs any gainsay that jurisdiction is the life wire to any adjudication. Where a court, whether inferior or superior, lacks it, it cannot entertain the matter, civil or criminal, sought to be placed before it for litigation as the defect in the jurisdiction is fatal to the proceedings however well-conducted and is extrinsic to the adjudication. See Mbah v State (2014) LPELR-22729(SC). Does the question on jurisdiction arise in a remand proceeding?

It is significant to draw a line between a remand proceeding and an arraignment. The former detaches itself from the question of jurisdiction while the latter must be clothed with the “jurisdiction”, failing which the whole trial may be nullified. While an arraignment is the first step in a criminal trial, a remand proceeding is an administrative or quasi-administrative proceeding.

In Asakitikpi v. The State (1993) 5 NWLR (Pt. 296) 641, the Supreme Court held that trials in criminal cases commence with the arraignment of the accused person and arraignment, in turn, consists of the charging of the accused or reading over the charge to the accused and taking his plea thereon… Arraignment, therefore, involves two things. One, the reading of the charge or information to the accused. Two, the response to the charge or information by a plea from the accused. The plea can either be guilty or not guilty. It is only when the above procedure is followed that a court of law will be said to have taken arraignment proceedings.

The Supreme Court in Idemudia v. State (1999) LPELR-1418(SC) “Where there is no valid arraignment the proceedings are a nullity; the question of a subsequent defence does not arise. It has been held in Oyediran v. The Republic (1967) N.M.L.R 122, that an arraignment consists of charging the accused or reading over the charge to him and taking his plea thereon. A valid arraignment, therefore, presupposes compliance with the enabling constitutional and procedural provisions.” Also, the court per Kumai Bayang Aka’ahs, J.S.C. in Ibrahim v State (2013) LPELR-21883(SC) held that “the arraignment of an accused person touches on the jurisdiction of the Court and any improper arraignment of the accused is a breach of a fundamental requirement in criminal proceedings which is capable of rendering the totality of the proceedings null and void.”

Conversely, in a remand proceeding, it is known that the charge is not read to the accused and therefore plea would not be taken. Once an accused person is brought before the Court for a remand proceeding, the Magistrate orders his remand without arraignment or grant bail pending arraignment. See Lufadeju & Anor v Johnson (supra). Hence, jurisdiction does not arise at this stage.

Even with the presence of the accused person in court, a remand proceeding is a one-party affair. It is an ex-parte application. The accused person is denied the right to respond. Painstakingly, this procedure breaches every fibre of the principle of audi alterem patem – a party should be heard. If the prosecution can be heard, the accused person should be allowed to give reason(s). However, noting that a remand proceeding is not a trial, there is a rebuttable presumption that the courts would define fair hearing as a fair trial. The Supreme Court in Mohammed v Kano N.A (1968) LPELR-25487(SC) stated: “It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We, therefore, see no difference between the two.”

Flowing from the above, remand proceeding has become a necessary evil. With the extant laws, the Courts have held that remand proceedings do not breach fundamental rights, except in cases of misapplication. Without any amendment to statutory provisions or the Supreme Court upturning its decision, remand proceedings in its proper sense may remain legal. This is the sad reality.

Farouk Obisanya can be reached at [email protected]