The Unfairness of Remanding Suspects With Ex parte Orders in Nigeria

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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 seemingly 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 if your Lawyer was 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.Another blizzare aspect of this issue , is that the Prosecutors do not add the proof of evidence to the Ex Parte Motion .

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 these exparte orders for remand were actually hatchet jobs 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, in Edo State Section 190 to 196 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.

For the avoidance of doubt, Section 36 (1) of the Constitution of the Federal Republic of Nigeria , 1999 (As Amended) posits thus :

In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

(This mean that every citizen of Nigeria in order to defend his/her rights and obligations as a citizen of Nigeria has the right to a hearing that is fair within a reasonable time in any lawful court or tribunal in the Country to enforce his/her rights against any Government or person, and such a Court or tribunal shall be formed in a way to secure its independence and impartiality).This right is inalienable and indispensable.

The Supreme Court of Nigeria 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 Hon 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 has 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.Also My Should also issue a Practice Direction that the Proof of Evidence be attached to the Ex Parte Motion, to give the Judge a benefit of hindsight into the case , before taking a decision.

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.

About the Author:

Douglas Ogbankwa Esq.,@ , a Lawyer , Writer and Policy Analyst is the Convener of the Vanguard for the Independence of the Judiciary and the Intellectual Hub.

11 thoughts on “The Unfairness of Remanding Suspects With Ex parte Orders in Nigeria

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