Kogi State High Court of Justice sitting in Lokoja has declared that the provisions of Sections 291- 297 of the Administration of Criminal Justice Law of Kogi State which relates to the power of the Magistrate to grant a Remand Order are constitutional and consistent with the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The presiding judge , Hon. Justice Majebi stated this in his ruling in an application for Judicial Review by an order of Certiorari made by Ali Ojotule Nathaniel and Sule Abdulkareem against the Commissioner of Police.
The Commissioner of Police had earlier sought and obtained, by experte application, the order of remand granted by Naimah Oyiza Bello, a Magistrate Grade II sitting at Magistrate Court II, Lokoja, on the 1st day of July, 2021.
The applicants, Ali Ojotule Nathaniel and Sule Abdulkareem who were arrested on allegations of criminal conspiracy, rape and aiding and abetting were remanded by the Order.
They thereafter sought to quash the proceeding of the learned Magistrate on the ground that the provisions of Sections 291- 297 of the Administration of Criminal Justice Law of Kogi State 2017, upon which the proceeding was premised, conflict with sections 35 (4)(5) and 36 (1)(5) of the Constitution of the Federal Republic of Nigeria in that: the applicants were deprived of their personal liberty; the police’ application for remand was made experte thereby depriving the applicants of their rights to fair hearing and presumption of innocence and that the Magistrate court was not a court of competent jurisdiction to try the offence against the applicants who were not arraigned in accordance with the provisions of the constitution.
In his ruling on the issues raised, the learned judge held that the Applicants who were yet to be charged cannot claim that their rights under Section 36 (5) of the constitution (presumption of innocence) were breached by reason of the said Remand Order because the trial had not commenced as they did not enter any plea and were therefore not denied fair hearing.
“By Section 4 of the Act, Suspect means a person who has been arrested on the suspicion of committing an offence and who is yet to be formally charged for that offence. Hence the deliberate use of the word ‘’suspect and not defendant’’. Therefore, the provision recognizes that under the remand proceedings envisaged by the ACJL, the suspect is yet to be formally charged for the offences for which he is brought before the Magistrate.”
Relating this with the constitution, his lordship maintained that the Constitution provides that any person who is arrested or detained may be brought before a Court of Law within a reasonable time not to be tried but to obtain a Remand Order.
“By Section 35 (1) (c) of the Constitution, a person is entitled to his personal liberty and shall not be deprived of such liberty saves, among others, for the purpose 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 necessary to prevent his committing a criminal offence which must be in accordance with a procedure permitted by law. Section 291 (1) therefore, operates in the context of reasonable suspicion that the suspects have committed a criminal offence under section 35(1)(c) and therefore have his right to personal liberty curtailed or restricted” he said.
Aligning this constitutional provision with that of the Kogi State ACJL 2017, he ruled that the ACJL provides due process of law to be followed in granting a Remand Order and thereby making a Remand Order a due process permitted by Section 35 of the Constitution.
According to the learned jurist, “Section 291 (of ACJL 2017) does not contemplate the proceedings for remand before the Magistrate to be an arraignment since it provides specifically that the remand of the suspect by the Magistrate in the circumstance is pending an arraignment of such a suspect before the appropriate Court or tribunal for trial. In such a situation, the Magistrate is empowered, upon the suspect being brought before him as in the present case, to remand the suspect in custody pending the arraignment of such person before a competent Court with requisite jurisdiction to try the said offences or grant bail. It is not a trial as it is not arraignment for the offence for which the Magistrate must be cloaked with jurisdiction to try.”
He therefore declared: “I hold that Section 291 -297 of the procedure of remand proceedings to the Kogi State Administration of Criminal Justice in remanding the suspects/applicants is not inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) particularly Section 35 (4) (5) and 36 (1) (5). Rather it clearly complements the provisions of Sections 35, 36 of the Constitution (as amended). It is designed to aid Administration of Criminal Justice in the Country.”
On the whole, Justice Majebi refused the application for lacking in merit after admonishing Magistrates in the state to adhere strictly to the provisions of the ACJL in granting remand orders.
“Under Section 292 of the ACJL, the Magistrate must be satisfied that there is probable cause to remand the suspect pending the receipt of a copy of the legal advice from the Attorney General of the state and arraignment of the suspect before the appropriate Court.
“While the Courts have held that remand proceeding do not breach Fundamental Rights as related above, the Courts seek strict adherence to the provision of the ACJL on remand Order as well as other provisions, misapplication of which shall be viewed as and declared as breach of the Suspect’s Fundamental Right to personal liberty under Section 35 of the Constitution.
“Failure of Magistrate to comply strictly with the said provisions of the ACJL is viewed not only as an abuse, but misconduct and incompetence which attracts appropriate sanction against the Magistrate.
“The relevant authority at whose instance the Suspects is remanded will be liable to pay compensation to the suspect for unlawful detention of the suspect and deprivation of his right to personal liberty” he said.