A holding charge is patently illegal under the constitution (Part 1), By Mike Ozekhome

Mike Ozekhome, Senior Advocate of Nigeria
Mike Ozekhome, Senior Advocate of Nigeria
By Mike Ozekhome


I have heard some very disturbing supposed legal opinions purportedly from some legal practitioners to the effect that the Administration of Criminal Justice Act, 2015, (ACJA), particularly sections 293-299, thereof, give an open cheque to Magistrates to order the remand, without trial, of any person who is the subject of investigation.

For the avoidable of doubt, ACJA was never enacted to curtail, abridge, whittle down, truncate, abrogate, or take away much cherished rights, freedoms and liberties duly granted to the citizen by the Constitution of the Federal Republic of Nigeria, 1999, as altered. The National Assembly has no fiat or power to abrogate or diminish constitutionally donated rights of any citizen under the guise of making laws. Section 4(2) mercy states that the National Assembly shall have power to make laws for the peace, order and good government of the Federation. The National Assembly is presumed therefore, to have made laws only, for the peace, order and good government of the Federation, and nothing more, in the fight against corruption or any other socio-economic, or security matter in Nigeria. Such “fight” must be done within the constitutional stratosphere and legal regime existing in Nigeria.

It is a trite principle of law, as copiously replicated in a litany of cases, that the National Assembly or a State House of Assembly, in enacting laws, cannot exceed the powers donated to it by the Constitution. Nor can it make laws that oust, or purports to oust the jurisdiction of the courts. Section 4(8) of the Constitution specifically forbids this, thus:

Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.

Where the National Assembly makes laws that are inconsistent with the provisions of the Constitution, such laws become automatically void to the extent of their inconsistency.


Under Section 35 (1) of the Constitution, the personal liberty of an accused person is sacrosanct, thus:

(1)  Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in some case and in accordance with a procedure permitted by law, as outlined in 1(a) to (f).

Section 35(4) provides:

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.

The expression “a reasonable time”is defined in S.35(4), to mean:

(a) in any other case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day;and

(b) in any other case, a period oftwo days or such longer 987+periodas in the circumstances may be considered by the court to be reasonable.(emphasis provided).

It is clear that the EFCC detention centre at “Idiagbon House” is within a 40 kilometres radius from the Federal or FCT High Court, as the case may be. Indeed, it is less than two kilometers.

In OHIZE v. COP (2014) LPELR-23012 (CA), the Court of Appeal, PerAKOMOLAFE-WILSON, J.C.A,emphasized the sanctity of a citizen’s personal liberty as follows:“The constitutional right to personal liberty of a person is sacrosanct, even for an accused person.”



Aside the fact that sections 293-299of the ACJA  violently violate the clear provisions of Section 35(4) and (5) of the Constitution as shown above, they also presumptuously create a “holding charge”, which has been declared by the highest Courts of the land, to be patently illegal, unconstitutional, null and void.

According to Blacks Law Dictionary,“holding charge” means a criminal charge of some minor offense filed to keep the accused in custody while prosecutors take time to build a bigger case and prepare more serious charge.”

A “Holding charge” therefore, is a charge brought by the Police other law enforcement officers against an accused person before an inferior court that lacks jurisdiction to try the offence charged, pending the receipt of legal advice from the office of the DPP, to recommend the accused person’s trial in a court of competent jurisdiction, or tribunal, set up to try the particular offence.

Nigerian courts have however consistently declared this “arrest-before-investigation”, rather than“investigation-before-arrest”, (as done in civilized criminal jurisprudences of the World), as anomalous, unconstitutional and illegal.

Dilating on this in the case ofOLAWOYE V. C.O.P. (2006) 2 NWLR (Pt. 965) 427 at 442-443, paras H-A (CA), the Court of Appeal, held, per Abdullahi, JCA, as follows:

The arraignment before a Magistrate Court tantamounts a holding charge which has been described as unconstitutional and illegal by this court. In the case of Enwere v. C.O.P. (supra) it was held that “holding charge” is unknown to Nigeria Law and an accused person detained thereunder is entitled to be released on bail within areasonable timebefore trial more so in a non-capital offence.

The intermediate court followed suit in the case of SHAGARI V. CO.P. (2007) 5 NWLR (Pt. 1027) 275 at 298 Paras. C – G, 302 Paras. G – H (CA),(Summary judgment of Sanusi and Ogbuagu, J JCA), where it held:

“A holding charge is unknown to Nigerian law and any person or an accused person detained thereunder, is entitled to be released on bail within a reasonable time before trial (more so in non-capital offences). A holding charge has no place in Nigerian judicial system. Persons detained under an ‘illegal’, ‘unlawful’ and ‘unconstitutional’ document tagged ‘holding charge’, must unhesitatingly be released on bail. In the instant case, the appellants were arraigned before a Chief Magistrate’s Court, which certainly lacked jurisdiction in homicide cases/offences and there was no formal charge framed against them accompanied by proof of evidence as at the time the High Court heard their motion for bail. The above amounted to special circumstance for High Court to admit them to bail, but by continuing to detain them on a “holding charge” was not a judicious and judicial exercise of discretion. See Enwere v. CO.P. (1993) 6 NWLR (Pt. 299) 333; Jimoh v. C.O.P. (2004) 17 NWLR (Pt. 902) 389; Ogori v. Kolawole (1985) 6 NCLR 534; Onagoruwa v. State (1993) 7 NWLR (Pt. 303) 49; Oshinaya v. CO.P. (2004) 17 NWLR (Pt. 901) 1.”

Similarly, In the case of ONAGORUWA VS THE STATE (1993) 7 NWLR (Pt. 303) 49, Justice Niki Tobi, JCA, as he then was, held that:

“It is an elementary but most vital requirement of our adjectival law that before the prosecution takes the decision to prosecute, which is a forerunner or precursor to the charge decision, it must have at its disposal all the evidence to support the charge. “In a good number of cases, the police in this country rush to court on what they generally refer to as a holding charge, even before they conduct investigations although there is


Furthermore, In BOLA KALE V. THE STATE (2006) 1 NWLR ((Pt.962) 507 at p. 765, the Court of Appeal expressed the same sentiments in the following words:

“It is an aberration and an abuse of judicial process for an accused person to be arraigned before a magistrate for an offence over which it has no jurisdiction only for the accused person to be remanded in prison custody and not tried or properly charged before a competent court for trial. It will be an infraction on the rights to fair haring and liberty of the accused person.”


Are you all reading and digesting this Sunday sermon on the mount of the Nigerian Project, by Chief Mike Ozekhome, SAN, OFR?


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