The Unfairness of Remanding Accused Persons on Exparte Orders By: Douglas Ogbankwa Esq.

The Administration of Criminal Justice Act, 2015, brought about a new vista in the Criminal Justice System in Nigeria. The domestication of the Law in some States, however introduced some disturbing trends in the Criminal Justice System.

One of such disturbing trends is the seeming arbitrary remanding of suspects without giving them or their Counsel an opportunity to be heard in Court, because the remand is done by an Exparte Order i.e. an Order in which even when your Lawyer is in Court he does not have a right of audience. The most grave thing that can happen to a human, aside being in a hospital or cemetery is being in prison.

It defies legal logic and common sense to remand a person to prison without giving him an opportunity to say why he should not be there. This is simply Holden Charge being given another name.
An apposite question to ask is why will the prosecutorial authorities not file a formal charge instead of putting people in prison sometimes for no just cause.
I have been seised of facts of some cases where this exparte order for remand was actually a hatchet job by some security agents to keep people in prison for no crime committed.
The fact that it keeps being renewed without the suspect still being heard exacerbates the injustice.

The offending section of the ACJLs of some States is contrary to Section 36 of the Constitution of the Federal Republic of Nigeria ,1999 (As Amended), which provides for fair hearing.
One of the components of the principle of natural justice -Audi Alteram Partem (You must hear the other side), originated from the Garden of Eden, where even the all knowing God still gave Adam an opportunity to explain himself, after his malfeasance. The Courts have also frowned at this profound injustice.

The Supreme Court in case of FEDERAL REPUBLIC OF NIGERIA v. ALH. ABUBAKAR MAISHANU AND 2 ORS. LER (2018 ) SC./51/ 2015, reiterated the indispensability of the principle of fair hearing in criminal proceedings when it stated per Justice I.T. Mohammad J.S.C. (As he then was ), thus:

“The cardinal principle of fair hearing whether in relation to a civil or criminal matter is so sacrosanct. The Latin maxim puts it this way: “Audi Alteram Partem” i.e. let the other party be heard. It simply means: hear the other side(s) in a dispute before reaching a decision. It is a constitutional requirement (Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

This court made several pronouncements that the principle of fair hearing has been incorporated in our jurisprudence that a man cannot be condemned without being heard. The principle is applicable in all cases in which a decision is to be taken in any matter, whether in a judicial, quasi-judicial or even in purely administrative proceeding involving a person’s interest in a property, right or personal liberty. Let the other party be heard! See: Adigun v. AG Oyo State (1997) ? NWLR (Pt.678) page; Oyeyemi v. Commissioner of Local Government, Kwara State & Ors (1993) 6 NWLR (Pt.299) 344”. PER I.T.MUHAMMAD, J.S.C

Justice I.T.Mohammed adumbrated on the issue further in the above indicated case, thus:

“The primary objective of any court of law is the attainment of justice irrespective of the disposition or approach of a party to the prosecution or in defence of the matter placed before the court. It is the duty of the court to state the correct position of the law on the subject matter placed before it without unnecessarily entering into the arena by making submissions on behalf of any of the parties”.

Could it be said that there is justice for a defendant or suspect to be remanded without being heard? The answer is an absolute no! In this regard, we humbly submit that the continuous remanding of Citizens of this Country without giving them an opportunity to be heard is at variance and inconsistent with section 36 of the Constitution of the Federal Republic of Nigeria.

By the Doctrine of Covering the Field, the principle is an overt illegality that should not be allowed to stand.

We humbly call for the Chief Judges of affected States where this injustice is currently being perpetrated to issue a Practice Direction, giving suspects or their Lawyers in Court an opportunity to be heard.

In this light, the procedure should be instituted by way of a Motion on Notice or even if by an exparte motion, the motion should have the proof of evidence attached so that the Judge can evaluate the evidence, to obviate the need for innocent people to be sent to Prison and also the Judge should give the suspect an opportunity to be heard.

Justice is not a one way traffic. It is a three way traffic, Justice for the victim, Justice for the defendant and Justice for the State.