By Stanley Maduabuchi Ofoegbu Esq

It is the law that jurisdiction is an issue of law. Every court meant to entertain a matter is set up by law. The said law spells out the jurisdiction of the court so that the court does not meander into the powers of another court in the name of being overzealous. The supreme court decision in MADUKOLU &ORS V NKEMDILIM (1962)LPELR -24023 (SC) popularly known for establishing the principles of jurisdiction, made it clear that it is either a court has jurisdiction to try a case or that it doesn’t have jurisdiction at all. Accordingly, where the court does not have jurisdiction, it proceedings no matter how beautiful and sound it appears, amount to a nullity. It is as good as putting something upon nothing which must surely kiss the ground.

In the same vein, it is now a settled law that the idea of holding charge is unknown to our criminal justice system see JIMOH V COP (2004) LPELR- 11262 (CA), ENWERE V COP ( 1993)6 NWLR (PT.229)333 AT 341, AGUNDI V COP (2013) ALL FWLR (PT.660) P1297 among other plethora of cases. However, despite the above decisions of the court, most magistrate courts are still in the habit of making remand orders against a defendant or an accused person even when they rule that they lack the requisite jurisdiction to entertain the charge.

Question

Does it now mean that the jurisdiction to make remand orders over a case that the magistrate court cannot try is different from the jurisdiction to actually try the case? Could there be any valid justification for this?

The law is firmly settled. It is either a court has the jurisdiction being the bed rock of all cases or it doesn’t have at all. There is nothing like partial or inchoate jurisdiction in law. The law currently is that magistrate court cannot try some specific offences especially those that carry with them, capital punishment. The constitution of Nigeria being the Bible upon which all law are tested, provides in section 35 (5) paragraph (a) that in any case of 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. The purport of the said section is to the effect that in arraignment of any one for commission of an offence, the said arraignment MUST be done in a court of competent jurisdiction that is, a court that has the power to try the case and nothing more. In other words, only a court of competent jurisdiction can deny a person his right to personal liberty following the commission or alleged commission of an offence. This means that where a person is arrested for the offence of murder, armed robbery, rape or possession of illicit drugs among others, he is meant to be taken to the appropriate court which is either a high court or the federal high court as the case may be and not magistrate court. It is immaterial that magistrate court is the closest court to the police or whoever is prosecuting. It is an aberration of the law to charge someone to a magistrate court knowing fully well, that the court lacks jurisdiction. It is a rape of the constitutional provision and intendment. The aberration becomes greater when the magistrate knowing fully that it lacks jurisdiction, hears the charge and end up making remand orders instead of striking out the entire charge and reprimanding the prosecution who cannot follow what the law spells out. The aberration again, gets to the apex point when the magistrate rules that it lacks jurisdiction, struck out the charge only to summersault and make remand orders for the accuse person to be sent to prison. This nonsense has become bread and butter in most of our magistrate courts today. Sometimes, one begins to wonder if some of these magistrates actually read law in the university before going to Law school.

The question then is, having agreed and rule also that the court being the magistrate court lacks jurisdiction, why proceed to make remand orders and congesting the poor Nigerian correctional facilities? When a court comes to the conclusion that it lacks jurisdiction, is the court not supposed to strike out the case? Is that not the proper order to be made? Having ruled that the charge be struck out for want of jurisdiction, why proceed to make remand orders again? Can one put something upon nothing? The moment a charge is struck out, everything incidental to the charge goes down with it. There is nothing before the court again upon which an order can be sustained. A magistrate that rules that it lacks the jurisdiction to entertain a charge but proceed to make remand orders, has indirectly assumed jurisdiction over the case. This is because orders of the court must be obeyed until set aside and the said orders are usually tied to jurisdiction of the court. In other words, a court that issues order does that because it has jurisdiction to do so for a court that has no jurisdiction to entertain a case cannot issue binding orders to the parties. Issuing of orders in the absence of jurisdiction is nothing but an abuse of judicial powers. It is also an abuse of judicial oath and amount to nonsensical judicial rascality which the law frowns at.

In the case of AGUNDI V COP supra, the court of Appeal held as follows

“ no person is to be brought to a court that has no jurisdiction to try or grant bail. In the instant case, the accused was brought before the chief magistrate 11 which had no jurisdiction. The chief magistrate court erred by assuming jurisdiction there upon”

Paragraph F-H “such an act is clearly an infraction on the right of fair hearing and liberty of the accused, I refer to section 35 and 36 of the constitution. It places the accuse person in the position of hopelessness as how to ensure his right”.

The court further held that the magistrate was not clothe with any iota of jurisdiction to take cognizance of or inquire into offences punishable with death and therefore, could not have remanded the applicant into prison. P1323 para D-E

Furthermore, the court in page 1325 para A, held that “the proper order a court should make when it founds out that it lacks the jurisdiction to hear and determine a matter is an order striking out the matter and not order of remand”

The court in page 1325 para D line 4,5 &6 unambiguously state that “furthermore, the order made by the chief magistrate court on 12th June 2006 remanding the appellant in prison custody is hereby set aside”.

Flowing from the above, it is obvious that a magistrate that lacks jurisdiction to hear a matter also lacks the jurisdiction to make remand orders. Besides being in conformity with the intendment of the constitution, it is also in conformity with common sense and hence, magistrate courts should sit up and do the needful without fear.

At this point, it is necessary to add that though some procedural laws such as the Administration of criminal justice Act 2015 among others, empowers the magistrate courts to make remand orders for instance, section 293 and 294 of the Administration of criminal justice Act, such provisions run contrary to the intendment of the constitution and therefore, void to the extent of its inconsistency. Such provision should be struck down for manifest injustice it is causing in our deplorable correctional facilities. It is inconsistent with section 35 of the Constitution and should struck down.

Way out

Where a person is arraigned before a magistrate court for an offence which the magistrate court lacks the jurisdiction to try, the person can decide to do the following:

Brief a lawyer for legal representation at the court. Upon being served with the copy of the charge or information report, the lawyer should immediately prepare and file a preliminary objection challenging the jurisdiction of the court from hearing the charge and making any form of remand orders citing the above authorities among others. Though this can be made orally, it is better in writing so that it can be appealed upon should the court dismiss the objection. The lawyer can either elect to file preliminary objection simpliciter or file a motion on notice challenging the court from assuming jurisdiction and making remand orders. Where the court dismisses the preliminary objection, the lawyer should prepare to appeal same at the high court down to the court of Appeal if the case demands. While the preliminary objection is being filed or appealed, motion for bail can be filed at the high court simultaneously and it won’t amount to any form of abuse. Where motion for bail is taken and granted at the high court with conditions, appeal on the dismissal of preliminary objection can be lodged at the high court and if it succeed, a fresh application should be filed to discharge the accuse person from the bail and it bond until a fresh charge is filed at the appropriate court. No doubt, this might be the end of the charge as it seems the Nigerian police have vowed not to prosecute matters at the high court despite what the law says. A person can decide not to apply for bail or refuse the bail if the terms are onerous and then pursue the preliminary objection down to the appeal stage and if upheld, he automatically regains his freedom without any form of bail as there is no charge upon which bail can fully rest on. Where a remand order of a magistrate has been struck down incessantly, such magistrate should be petitioned before the appropriate authorities. Stanley Maduabuchi Ofoegbu Esq, Abuja.