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Legality or Otherwise of Holding Charge in Nigerian Legal System

Legality or Otherwise of Holding Charge in Nigerian Legal System.

Legality or Otherwise of Holding Charge in Nigerian Legal System.

By Shuaibu Bashir Mukaddam


This write-up examines the concept of holding charge on what and which circumstances is holding charge done what necessitates it when is it done how is it done as well as its legality or otherwise. We’ll make reference to some of the views of our learned judges and some the prominent precedents laid down by our various courts of law.


What is holding charge? Holding charge can be defined as a situation when jurisdiction is vested in a high court but arraignment was made before a magistrate court see olawoye vs cop (2006) 2 NWLR (pt. 965) 427 at 442 CA.

Holding charge is done at the stage of arraignment and mention to be done continuously until the charge is ready for the case to be filed and directed to the high court being the court with appropriate jurisdiction, holding charge is done to give police more time to gather evidence and also it allows the ministry of justice to have sufficient time in drafting and compiling the charge before a high court.

The magistrate court lacks jurisdiction to try capital offences pursuant to part III section 17 of the magistrate court laws 2018 Kano state being offences whose punishment is above 14 years of imprisonment. The high court is the court with appropriate jurisdiction for capital offences pursuant to chapter IV section 272(1) of the 1999 constitution of Nigeria as amended 2023.

This renders magistrate court lacking jurisdiction on capital offences in other words felonies and this qualifies trial at the same magistrate court being called holding charge.


After seeing what holding charge is the position of the law is trite and settled that holding charge is illegal and not recognized by our legal system it has been the normal practices of police officers in this country of ours that when a person is suspected of committing a capital offence which the Magistrate court lacks jurisdiction instead of them to duplicate the case diary and forward it to the office of director public prosecution for proper charge before a high court (the court with appropriate jurisdiction over capital offences) they nevertheless bring him to the magistrate court with the knowledge that the trial cannot take place due to lack of jurisdiction on the basis of holding charge and the magistrate court will remand him on this basis.

This place the accused in a state of delusion and infringement on his fundamental human rights placing him in a state of hopelessness as to what the next action is or on how to defend himself.

This practice is utterly ridiculous and unknown to our judicial system placing reliance on authorities as follows; IBEGHIM v. COP ABIA STATE & ANOR (2021) LPELR-56548(CA) where the court held that;

“Indeed, the matter has been well settled in a number of cases. In the case of Bolakale v. State (2006) 1 NWLR Part 962 Page 507 at 518 Para H, per Muntaka-Coomassie JCA (as he then was), this Court held: “It is an aberration and an abuse of judicial process for an accused person to be arraigned before a Magistrate Court 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 right to fair hearing and liberty of the accused person. It will place him in a position of hopelessness as to how to enforce his right.”

In the earlier case of ONAGORUWA V. STATE (1993) 7 NWLR Part 303 Page 49 AT 107 Para G-H, Tobi JCA (as he then was) this Court held:

“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”… 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.” Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA (Pp 12 – 14 Paras F – B)


In conclusion it’s clear that holding charge is not recognized by our legal system we therefore urge our police officers and honourable magistrates to desist and refrain from such act of holding charge and abide by due process of law.


Shuaibu Bashir Mukaddam is an undergraduate student at the faculty of law Maryam Abacha American University of Niger. He is an enthusiastic reader, researcher and legal writer. His interest and vast knowledge in the legal sphere covers all aspect of the law.

Shuaibu Bashir Mukaddam can be contacted via; Or Via LinkedIn; Shuaibu Bashir Mukaddam


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