Using ex parte orders to remand suspects without hearing from them contradicts constitutional rights, fuels arbitrary detention, and worsens prison congestion. All these partly highlight the troubling abuse of Nigeria’s criminal justice process, AMEH OCHOJILA reports.
Nigeria’s criminal justice system is anchored on the principles of fairness, equity, and the rule of law. Yet, within its corridors lurks a legal anomaly that continues to erode the integrity of these principles: the issuance of ex parte remand orders.
In the absence of any input or defence from the person affected, such orders empower the police or prosecuting authorities to detain suspects, sometimes indefinitely, under the guise of legality.
While the law permits limited use of such orders in exceptional circumstances, their widespread abuse has led to a miscarriage of justice, exacerbated prison congestion, and cast a dark shadow on the rule of law in Nigeria.
An ex parte application, by its nature, is made to the court by one party without the presence or knowledge of the other. In criminal matters, this becomes particularly dangerous. Prosecuting authorities, especially the police, often rely on ex parte motions to secure remand orders to detain individuals on mere suspicion of commission of an offence without affording them the opportunity to be heard or to challenge the basis of their detention.
This practice, though widespread, contradicts both the Nigerian Constitution and international human rights instruments to which Nigeria is a party. Section 36 of the 1999 Constitution guarantees the right to a fair hearing, which includes the right to be informed promptly of charges and to defend oneself. Equally, Article 7 of the African Charter on Human and Peoples’ Rights (domesticated in Nigeria) upholds the right to be heard.
By detaining suspects through ex parte orders, the system silences them at the critical first stage of legal proceedings, thus violating their fundamental rights.
The use of these remand orders flies in the face of clear constitutional safeguards. While reacting to concerns about magistrates mechanically granting such orders without applying judicial discretion, a former Chief Justice of Nigeria, Justice Aloma Mukhtar, said: “No judicial officer should allow himself to be used to keep people in prison under the cloak of ‘remand’ while investigations are said to be ongoing.”
The Administration of Criminal Justice Act (ACJA), 2015, which applies in federal courts and has been adopted by several states, was designed to address many of these irregularities. Section 293 of ACJA permits the police to apply to a magistrate for a remand order if the investigation cannot be completed within 24 hours.
However, such an application must be in writing, supported by an affidavit, and crucially, the suspect must be presented before the court. In practice, however, this provision is routinely violated. Suspects are either not brought to court or are remanded solely based on the oral request of police officers, often without any formal charges.
A prominent example is the 2018 case of Enyinnaya Okoli v. Commissioner of Police, where the court ruled that detaining a suspect via an ex parte order without hearing him was unconstitutional. The Federal High Court in Lagos declared that the detention violated Okoli’s right to liberty and awarded damages against the police. The case, though impactful, has not deterred the continued use of such illegal detention mechanisms.
The problem is not merely procedural; it is systemic, as the country’s criminal justice system is notorious for arbitrary arrests, prolonged detentions, and pretrial incarceration.
Ex parte remand orders now constitute a tool of convenience for law enforcement officers seeking to circumvent due process. These orders allow the police to bypass the obligation of building a prosecutable case before detaining suspects.
The Economic and Financial Crimes Commission (EFCC) and the Nigerian Police have often been accused of using such tactics, especially in politically sensitive or high-profile cases.
In 2022, several media reports highlighted the use of ex parte orders to detain protesters and journalists under the pretext of “investigations,” without formally charging them or bringing them to court for a hearing.
Perhaps the most devastating consequence of this practice is its direct contribution to prison congestion, which is a chronic crisis in Nigeria.
According to the Nigerian Correctional Service (NCoS), over 70 per cent of inmates in the country’s custodial centres are awaiting trial. Many of these inmates were remanded through questionable orders issued without them being heard.
In states like Lagos, Rivers, and Kano, custodial centres operate far beyond their intended capacity. There are reports that Kirikiri Correctional Centre, designed to hold 1,700 inmates, is often home to over 3,000 individuals, many of whom have no formal charges filed against them and have languished behind bars for months or even years. Their only crime is at the mercy of an arbitrary remand order.
This also burdens the correctional service, strains judicial resources, and diverts attention from genuine criminal trials. Worse still, the dehumanising conditions in overcrowded prisons amount to cruel treatment, thereby violating Nigeria’s obligations under international human rights law.
The use of ex parte remand orders undermines public confidence in the judiciary. When courts appear complicit in unjust detentions, the public begins to question their neutrality and independence. Judicial officers who rubber-stamp remand applications without scrutiny contribute to a growing perception of the judiciary as an extension of law enforcement rather than an impartial arbiter.
The judiciary must reclaim its role as the guardian of fundamental rights. Magistrates and judges must insist on the presence of suspects in remand proceedings, interrogate the basis for detention requests, and refuse to grant blanket remand orders unsupported by cogent evidence .
To reverse this trend, Monday Ikpe, a lawyer, said urgent reforms are required. First, magistrates and judges should receive continuous training on the ACJA and the constitutional rights of suspects.
Secondly, the National Judicial Council (NJC) should issue guidelines to judicial officers, making it mandatory to hear suspects in remand proceedings and to record reasons for granting such orders.
Ikpe added that the Nigerian Bar Association (NBA) must be proactive in challenging illegal detentions and in providing legal aid to victims of ex parte remands. Again, civil society organisations also have a role to play in documenting abuses and pushing for systemic change.
Finally, legislative amendments, he said, may be necessary to tighten loopholes that permit arbitrary use of ex parte orders. For instance, lawmakers could amend Section 293 of ACJA to specifically bar any remand order in the absence of the suspect, save for exceptional circumstances, such as a medical emergency or flight risk, subject to judicial approval and review.
“The use of ex parte remand orders in Nigeria’s criminal justice system is not just a legal technicality; it is a profound injustice. By allowing individuals to be detained without being heard, the system undermines the very principles upon which justice rests. It perpetuates abuse, breeds impunity, and contributes to the overpopulation of Nigeria’s already congested prisons.
“The courts must rise to their constitutional duty, and the Nigerian state must reject the temptation to sacrifice liberty at the altar of expediency. A justice system that incarcerates first and hears later is not a system of justice at all, it is a machinery of oppression. Reforms must come swiftly, lest the promise of justice for all becomes an illusion for many,” he declared.
Omale Ajonye, another legal practitioner, said the use of ex parte remand orders in criminal proceedings, where a suspect is detained by court order without being present or heard, is generally not justifiable under Nigerian law.
He explained that Section 36 of the 1999 Constitution guarantees the right to a fair hearing, including the right to be informed of charges and to defend oneself. Ex parte proceedings, by their nature, he said, deny the suspect this opportunity, making them inconsistent with constitutional standards.
The lawyer said that although Section 293 of the Administration of Criminal Justice Act (ACJA) allows a magistrate to remand a suspect in certain circumstances, it implies that such orders should be made with the suspect present and with some evidence presented. The ACJA, he said, further sets limits on the duration and review of such remand orders, underscoring the need for procedural fairness.
Ajonye said while there may be exceptional cases requiring urgent action, ex parte remand orders should be the exception, not the norm. They must be promptly followed by a hearing where the suspect is present to ensure compliance with the Constitution.
“Except in the extremely rare case that threatens the overall security wellbeing of the country’s security architecture and wellbeing of citizens by a suspect(s), remand orders obtained via ex parte applications are generally unconstitutional under the doctrine of audialterem partem (hear the other party) under the principle of fair hearing.
However, an Abuja-based lawyer, Ephraim Akamihe, thinks differently. He argued that ex parte remand orders as provided for in Section 293 of the ACJA are justifiable in criminal proceedings and can be seen as provisions made to ensure the fulfilment of the provisions of Sections 36 and 35(4)&(5) of the 1999 Constitution (as altered).
According to him, section 35 gives the right to personal liberty and prevents unlawful detention of a person without trial within a “reasonable time”, whereas section 36 grants the right to a fair hearing within a reasonable time.
“Reasonable time” to be brought to court while in detention is within 24 or 48 hours of detention or such other period that the court may consider as reasonable given the circumstances. Section 35(5) of the Constitution makes this clear.
“Even Section 35 (4) recognises that someone can be in detention for up to two or three months, depending on the gravity of the offence, but requires the person to be brought to court or be released unconditionally or upon such condition as to ensure that he appears for trial at a later date.
“So, while the ACJA makes provision for ex parte remand orders, such orders are not automatic as Section 294(2) ACJA provides that there must be a “probable cause” established by the applicant for an application for a remand order to stand.
“They include the nature and seriousness of the offence, reasonable ground that the suspect may be involved in the commission of the offence, reasonable ground that the suspect may abscond or commit a further offence if not detained, or any other circumstance justifying the detention,” he explained.
Akamihe stressed that section 295 of ACJA provides that the court may grant bail to a suspect while considering an application for a remand order, taking into consideration the provisions of sections 158 and 188 ACJA on bail.
“Therefore, looking at the provisions of sections 36 of the constitution and 293 of the ACJA, I think that ex parte remand orders are justifiable in criminal proceedings as where a suspect feels that he has been unjustifiably detained, he can through his counsel bring an application for enforcement of his fundamental human rights for the detaining authority to show cause why he should not be released or granted bail as the case may be.
While Bayo Akindele, another lawyer, broke ranks with Akamihe saying that wanton issuance of the order does not consider the provisions of Section 36 of the 1999 Constitution and Section 293 of the Administration of Criminal Justice Act (ACJA), Douglas Ogbankwa, also a legal practitioner criticised the growing use of ex parte applications to remand suspects in custody without granting them the right to be heard, describing the practice as an affront to the constitutional principle of fair hearing.
He argued that the procedure prevalent under the ACJ law in some states essentially revives the discredited “holden charge,” and even worsens it, as lawyers are often denied audience during the remand process.
According to Ogbankwa, this undermines the suspect’s constitutional right to defend themselves and contributes significantly to prison congestion.
He cites the Federal Republic of Nigeria v. Abubakar Maishanu& Ors case, where the Supreme Court reaffirmed that the principle of audi alteram partem is fundamental to justice, warning that any process that condemns a person unheard is unconstitutional.
He condemned the inconsistency whereby courts grant ex parte remand orders but hesitate to grant similar orders for release, describing it as a judicial endorsement of illegality even as he argued that such practices conflict with Section 36 of the 1999 constitution, which guarantees fair hearing, and that any state legislation violating this right is null and void.
To address the abuse, Ogbankwa called on Chief Judges to issue practice directions mandating that remand applications be made by motion on notice, with proof of evidence attached and suspects given a chance to respond.
He advocated administrative bail for non-dangerous suspects and warned that the continued abuse of remand powers is not only unjust but also socially and economically damaging.
