By Ekpenyong Ntekim

The first remand of 30 days in Lagos State under its 2007 Law, if made, would exceed the authorised maximum remand period of 28 days in Akwa Ibom State in both the first and second instances under the 2011 amendment to the Law. Therefore while in Lagos State, in an appropriate case, a remand may be made for up to 60 days, a remand in Akwa Ibom State may only be made, in an appropriate case, for a maximum period of 28 days.

Prof Itse Sagay, SAN

Furthermore, Prof. Sagay, SAN may have elected to be ignorant of the rationale for, and constitutionality, of remand proceedings in our jurisprudence. Section 236 of the 1994 Law of Lagos State, repeated in section 268 of its Law of 2007 and in pari materia with section 1 of the Criminal Procedure (Amendment) Law 2011 of Akwa Ibom Sate, had been tested and rested at the Supreme Court since 2007 in the case of Lufadeju v Johnson (2007) 8 NWLR (Pt 1037) 535.

The submission of Prof. Sagay, SAN on the effect of section 35 of the 1999 Constitution (similar to section 32 of the 1979 Constitution) on the remand power of the Magistrate under these Laws referred to above is stale and discarded, to his knowledge, having been unsuccessfully raised in the case of Lufadeju v Johnson referred to above, where the Supreme Court, at page 557 para. F–G stated as follows:

“Learned counsel has submitted that that section 32(1) of the 1999 Constitution which guarantees the right and discloses no exception, does not contemplate the power of Magistrates to make remand orders, as contained in section 236(3).”

Governor Godswill Akpabio

Putting the issue to rest in the lead judgment of Mukhtar, JSC at page 559 para. A – D of that case, the Supreme Court held as follows: “I do not see that there is conflict between the provision of section 236(2) of the Criminal Law supra and the provisions of section 32 of the Constitution supra.

The fact is there was strong suspicion that the respondent and some others have committed an indictable offence, to wit, treason. After their arrest by the police, there was the need to properly and lawfully keep them in custody, and the only way to do this was to take them to a Magistrate Court who would in turn remand them in custody. They couldn’t possibly continue to remain in police custody without the order of a court. Police investigations sometimes take time, and sometimes there is the fear of a likelihood of continued committal of the same or other offences.

There is also a likelihood of interference with investigations. Whilst this process continues or is concluded, the legal advice of the Ministry of Justice is sought.” In a concurring opinion, Onnoghen, JSC stated at page 570 para. F of the decision thus: “In such a situation the Magistrate is empowered, upon the suspect being brought before him, to remand the suspect in custody pending the arraignment of such person before a competent court with the requisite jurisdiction to try the said indictable offence.”

Indeed, the Supreme Court concluded that none of the constitutional rights to fair trial, presumption of innocence and to prompt charge had been breached by the remand proceedings and the order of remand by the Magistrate. Prof. Sagay, SAN could therefore not have been making any valid legal argument in his peremptory conjecture that the Criminal Procedure (Amendment) Law 2011 of Akwa Ibom State is in “flagrant violation of the Constitution”.

There is no point in Prof. Sagay, SAN instigating the National Executive of the Nigerian Bar Association “to move fast” by “getting a Court declaration, nullifying” what he erroneously termed as “Akwa Ibom State Decree No. 2 of 2011”. Rather, he is invited and challenged to do so personally, a fruitless exercise I am sure he would be unwilling to undertake.

It is important that persons whose professional views are expected to mould enlightened public opinion on any subject should do so diligently and in absolute good faith, not as commercial commentators would do in political jobbery.