Written by Meti M. Ukpeh, Esq.
A.) As we all know, a remand proceeding is simply, a criminal procedure undertaken by a criminal prosecutor before a Magistrates’ Court who will remand a suspect in custody as a result of felonious charges or capital offences against the suspect/defendant.
This procedure had been rampant, prior to the new law, the Administration of Criminal Justice Law of Akwa Ibom State (hereinafter referred to as, the “new law”, “law” or “ACJL”), as lay police prosecutors found comfort in charging suspects/accused (now defendants) with capital offences in the Magistrates’ Court who, in recourse to its lack of jurisdiction to try such offences, will remand these suspects/defendants in custody pending when a formal charge is instituted in the High Court against the suspect/defendant, as the case may be.
However, thanks to section 106(d) that rooted out lay police prosecutors save police lawyers. Note here that, by reason of S.492 of the ACJL, police include other law enforcement agencies.
It is pertinent to note that the new law envisages a remand proceeding by an ex – parte application, viz:
S. 292(1) provides thus:
A suspect arrested for an offence which a Magistrate’s Court has no jurisdiction to try shall, within a reasonable time of arrest, be brought before a Magistrates’ Court for remand.
Ss.2: an application for a remand under this section shall be made ex – parte and shall be-
- Made in the prescribed “Report and Request for Remand Form” as contained in Form 8, in the First Schedule to this Law; and
- Verified on oath and contain reasons for the remand request.
worthy of note is the fact that the ordinary effect of an ex-parte application is for urgent or emergency situation and for an order in the interim, hence lapses after a short period of time, usually 7days (a week) except the extant laws, rules of court provide otherwise or the court extend such duration but not beyond seven days pending when an interlocutory application is brought.
B) However, the new law, ACJL, has comfortably provided what or the duration of such an order brought by ex-parte application, thus, S. 295(1) provides:
Where an order of remand of the suspect is made pursuant to section 292 of this law, the order shall be for a period not exceeding twenty-one days in the first instance, and the case shall be returnable within the same period
The effects thereof on a suspect/defendant as the case may be include:
- The remand proceeding is done without notices to the suspect/defendant for proper time and facility to prepare for his trial
- He may be remanded in a correctional centre prescribed in the order for a period of 21 days pending a formal charge instituted against him by the criminal prosecutor in the high court.
- He may remain in the correctional centre for a cumulative period of 84days before the court (Magistrates’ Court that had ordered the remand) can discharge him without a formal charge instituted against him.
C) Options That Avail a Suspect/defendant/defence lawyer
- The suspect/defendant lawyer may, on the hearing of the ex-parte application, invoke section 294 of the law which provides thus:
The court may, in considering an application for remand brought under s.292 of this law, grant bail to the suspect brought before it, taking into consideration the provisions of sections 158 to 188 of this law relating to bail.
Note: this is safer where the suspect “got wind” of his arraignment in the magistrates’ court.
- The suspect/or through his counsel can invoke s. 348(2) of the law which provides:
In a trial in the magistrates’ court or tribunal, the prosecution shall, provide the defendant all material that the prosecution intend to rely on at the trial, before or at the commencement of the trial
- He can invoke section 36(6) (a and b) of Constitution of the Federal Republic of Nigeria, 2011 as amended, on the ground of fair hearing in according him adequate time and facility to prepare for his defence which is in pari material with s.348(2) of the law.
For the avoidance of doubts, section 36 (6) (a and b) provides thus:
Every person who is charged with a criminal offence shall be entitled to-
- Be informed promptly in the language that he understands and in detail of the nature of the offence;
- Be given adequate time and facilities for the preparation of his defence
- The suspect/defendant, better still, his lawyer, can also within 21day in custody apply to the court (Magistrates’ Court that ordered his remand) for an inquiry on his arrest and custody with a possibility of admission to bail by the court. See: section 32(c) and s. 32(2) of the law:
s.32(2): the court shall order the production of the suspect detained and inquire into circumstances constituting the grounds of the detention and where, it deems fit, admits the suspect detained to bail.
In conclusion, it is evidently safer to submit that, whereas the remand proceedings by ex-parte application is a clog, an ambush or a waylay of the suspect/defendant by the prosecution upon reliance on the strict wordings of section 292 of the new law, it is pertinent to hold that there is a relief, a succor and a solace for the suspect/defendant as there are very other options opened for the suspect/defendant to ensure the enforcement of his rights as extensively discussed above.
About the Writer
Meti Monday Ukpeh ESQ is a Public Affairs Analyst and Human Rights Lawyer. He can be reached via [email protected]