1. HOLDING CHARGE VIS-A-VIS SECTION 293 OF THE ADMINISTRATION OF
CRIMINAL JUSTICE ACT, 2015: THE THOUGHTS OF UGOCHUKWU UGWU, ESQ.
1. INTRODUCTION:
The term ‘holding charge’ is defined by the Black’s Law Dictionary, as a criminal charge of
some minor offences filed to keep the accused in custody while the persecutor takes time to
build a bigger case and prepare a more serious offence.
Holding charge is, therefore, a system of bringing an accused person before an inferior court
that lacks jurisdiction to try him or her for the primary purpose of securing a remand order
and thereafter abandon him or her in prison under the pretence of awaiting trial.
It is rather very unfortunate that no Nigerian law provided for the meaning of the term
“holding charge”, hence, the desperate ploy by Section 293 of the Administration of Criminal
Justice Act, 2015 (“ACJA”) to bring this back to the Nigerian administration of the criminal
justice system through the back door cannot survive since that provision is an infraction, an
assault and a collateral desecration of the spirit and letters of the Constitution of the Federal
Republic of Nigeria, 1999 (as Amended) (hereinafter referred to as “1999 Constitution”).
It is, however, curious that the import of holding charge is only to hold the suspect(s) in
custody to enable the police, the Economic and Financial Crimes commission (hereinafter to
be referred to as “the EFCC”) or other law enforcement agencies to properly conduct
investigations which it earlier failed to conduct with a level of certitude as to his or her
availability when required. Thus, the sole rational for the employment of holding charge in
our criminal justice system is to ensure that a suspect does not abscond from custody when
the law requires him to answer to the case against him. This is a brazen abuse and abysmal
denigration of the fundamental right of presumption of innocence.
The Supreme Court in Onagoruwa v. State (1992) 2 NWLR (Pt. 221) 33 at 54 succinctly
adumbrated this malevolent concept in the following terms:
“In a good number of cases , the police in this country rush to court on
what they generally refer to as a holding charge ever before they conduct
investigations, though there is nothing known to law as “holding
charge”….”

2. 2. THE RESIDUAL LEGAL STATUS OF AN ACCUSED PERSON
It is apposite to state here from the outset that every accused person is presumed to be
innocent. So, the residual legal status of every accused person is the presumption of
innocence. Hence, Section 36(5) of the 1999 constitution provides as follows:
“Every person who is charged with a criminal offence shall be presumed to
be innocent until he is proved guilty;”
The practice of holding charge runs contrary to the very essence of personal liberty. The
Nigerian Criminal Justice System is adversarial in nature and upholds with utmost sanctity
the exalted presumption of innocence. This was in fact the basis for the requirement of
proof beyond reasonable doubt in criminal cases. Although criminal law focuses most of its
attention on punishing offenders, it also provides necessary safeguards to ensure that no
innocent person is allowed to suffer. This being the case, however, the practice of holding
charge ridicules the very root of our criminal laws. Hence, in a number of cases, the courts
have held the practice of holding charge to be invalid and lacking any constitutional basis.
The essence of the presumption of innocence is to ensure that the liberty of Nigerians is
secured and not at the whims and caprices of the police, EFCC or any other law enforcement
agencies. The liberty of every Nigerian is, therefore, guaranteed by virtue of the 1999
constitution Section 35(1) of the constitution which provides as follows:
“Every person shall be entitled to his personal liberty and no person shall
be deprived of such liberty save in the following cases and in accordance
with a procedure permitted by law..”
The Nigerian Court of Appeal per Akomolafe-Wilson, JCA emphasised the sanctity of the
Nigerian’s personal liberty in Ohize V. C.O.P (2014) LPELR 23012 (CA) where he held that,
“the personal liberty of the accused is sacrosanct”.
3. THE LEGAL IMPLICATION OF HOLDING CHARGE AS APPLICABLE TO SECTION 293 ACJA
It is apparent that no law in Nigeria provided expressly for holding charge or its meaning.
However, Section 293(1) of the ACJA provides as follows:

3. “A suspect arrested for an offence which a Magistrate Court has no
jurisdiction to try shall, within a reasonable to of arrest, be brought before
a magistrate court for remand"
It appears clear to a cursory eye that Section 293 to 299 of the ACJA seems to have legalised
the otherwise illegal holding charge by empowering a magistrate to make a remand order in
an offence in which he has no jurisdiction to try. The power of remand is for 14 days in the
first instance, renewable on two subsequent occasions of 14 days each and no more. Thus,
the remand can be for a period of 42 days.
Furthermore, it appears very clearly that this section contradicts the whole gamut of Section
35 of the 1999 Constitution on the right to personal liberty, especially subsection 5 which
demands bringing a suspect to court for trial within a reasonable time of one day in the case
of an arrest or detention in any place where there is a court of competent jurisdiction within
a forty kilometre radius or two days or such longer period considered by the court as
reasonable in any other case. Section 35(1), (4) & (5) of the 1999 constitution provides as
follows:
“(1) Every person shall be entitled to his personal liberty and no person
shall be deprived of such liberty save in the following cases and in
accordance with a procedure permitted by law
(4) 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, and if he is not tried within a period of -
(a) two months from the date of his arrest or detention in the case of a
person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a
person who has been released on bail, he shall (without prejudice to any
further proceedings that may be brought against him) be released either
unconditionally or upon such conditions as are reasonably necessary to
ensure that he appears for trial at a later date.

4. (5) In subsection (4) of this section, the expression "a reasonable time"
means -
(a) in the case of an arrest or detention in any place where there is a court
of competent jurisdiction within a radius of forty kilometres, a period of
one day; and
(b) in any other case, a period of two days or such longer period as in the
circumstances may be considered by the court to be reasonable.”
A very curious provision in this ACJA is the power the law gave to the magistrate court to
make a remand order in a matter it lacked the jurisdiction to try.
TAKE NOTICE that a careful consideration of Section 35(5)(a) of the 1999 constitution
provides that the accused must be brought before a court of competent jurisdiction. The
import of Section 293 ACJA is therefore inconsistent with the provisions of the 1999
constitution. The 1999 constitution provides in Section 1(1) & (3) as follows:
“(1) This Constitution is supreme and its provisions shall have binding
force on the authorities and persons throughout the Federal Republic of
Nigeria.
(3) If any other law is inconsistent with the provisions of this Constitution,
this Constitution shall prevail, and that other law shall, to the extent of
the inconsistency, be void”.
It is glaringly apparent in this circumstance that the magistrate cannot make a binding order
in a matter it lacked jurisdiction. The Supreme Court per Bello, JSC in Uti v. Onoyivwe (1991)
1 NWLR (Pt. 166) 166 @ 206 held,
“Jurisdiction is the blood that gives life to the survival of an action in a
court of law and without jurisdiction; the action will be like animal that
has been drained of blood”.
I, therefore, submit that the police, EFCC or any other law enforcement agency can only take
the accused person to a court of competent jurisdiction and not the magistrate court as
enshrined in the ACJA. The Supreme Court, in its elucidating judgment, went further in the
case of Agundi v. C.O.P (2013) All FWLR (Pt. 660) 1243 to hold as follows:

5. “It is unconstitutional for a magistrate court to take cognisance of an
offence, remand a suspect into prison custody and make binding orders
when the court lacks the requisite jurisdiction to entertain such matters”.
See also Ahmed v C.O.P, Bauchi (2012) 9 NWLR (Pt. 1304) 104.
It becomes quite crystal clear that there is no constitutional basis for the police, EFCC or any
law enforcement agency to arrest a suspect and rush him or her to the magistrate court that
has no jurisdiction to try the matter to obtain a remand order. This sort of executive rascality
must be condemned.
The Supreme Court in Onagoruwa v. State (supra) authoritatively berated the police that,
“Where the investigation does not succeed in assembling the relevant
evidence to prosecute the accused to secure conviction, the best discretion
is to abandon the matter and throw in the towel… On no account should it
go out of its way in search of evidence to prosecute the accused when it is
not there. When it degenerates to such a situation of “hunting down”, the
prosecution is no more regarded as the prosecutor but as a persecutor.
And that is not consistent with the philosophy of our adversary system of
adjudication.”
The use of holding charge was also criticised by the Court in Shagari v. C.O.P & Ors (2005)
All FWLR (Pt. 262) 450 where the court described it as improper use of power or flagrant
abuse of power by the police for which they stand to be condemned.
4. REMEDIES OPEN TO A DETAINED PERSON: BAIL OR DISCHARGE
In Jimoh v. C.O.P (2004) 17 NWLR (Pt. 902) 389, the Court of Appeal held that a holding
charge is unknown to Nigerian law and an accused detained thereunder is entitled to be
released on bail within a reasonable time before trial.
In Johnson v. Lufadeju (2007) NWLR (Pt. 1037) 535 the Court of Appeal held thus:
“…if there can be no sensible and prima facie inference that can be drawn
that an offence has been committed, then the liberty of an accused
cannot be deprived even for one second. There cannot be a ‘holding

6. charge’ hanging over an accused in court pending the completion of
investigation into the case against him.”
Worthy of note here is that in considering the liberty of an accused person as mentioned
earlier, the law envisages that it would not matter whether the offence is a serious one or
not, which is why it is said that an application for bail in favour of the accused person cannot
be challenged by the prosecutor when he has failed to do what ought to be done. This
assertion has received a judicial imprimatur in the case of Bolakale v. The State (2002) 1
NWLR (Pt. 962) 507 where the court reasoned thus:
“…it is the seriousness of the offence that should spur the prosecution to
do or perform its functions timeously and properly because the liberty of a
citizen is at stake. It is when the prosecution has done what it is supposed
to have done that it can properly object to release of the accused person.
It does not lie in the mouth of the prosecution to say that the accused
should not be released on bail when it failed to arraign the accused person
before a court of competent jurisdiction.”
Therefore, any person who is being detained under a holding charge is entitled to bail.
Moreover, the court can exercise its discretion under Section 45 of the Criminal Procedure
Code to discharge the accused person detained under it and dismiss the matter or under
special orders of the court in Part IV, Sections 94, 99 and 100 Of the Criminal Procedure
Code. It must be noted that such a discharge is not on the merit. In other words, the
discharge does not serve as a bar to further prosecution against such an accused.
In conclusion, it is my humble submission that the provisions of Sections 293 - 299 of the
ACJA are inconsistent with the provisions of the 1999 constitution and impedes the justice
which the law seeks to provide.
So, such draconian provisions of the ACJA cannot qualify as a law which is reasonably
justifiable in a democratic society and clearly reverses the presumption of innocence. The
law should be repealed as fast as possible before the Court declares it void.
Ugochukwu Ugwu, Esq. (LL.B, LL.M)
Principal Counsel, Ugochukwu Ugwu Law Point