Trial Within a Reasonable Time Under Nigerian Law:

A Legal Myth or Reality?

Shima, V.A.* and Bem Aboho,**

Abstract
Nigerian justice system is aimed at quick dispensation of justice. To this end,
the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the
Constitution), provides that the determination of cases should be done within a
reasonable time and further that the delivery of judgment shall not be later
than ninety (90) days after the conclusion of evidence and final addresses,
among other such provisions. The main objective of the Administration of
Criminal Justice Act, 2015 (ACJA) is to engender speedy trial. The ACJA
further provides for electronic recording of confessional statements in section
15 (4), issuance of legal advice within fourteen days, among other provisions.
The Criminal Procedure Act, 2004 (CPA) and Criminal Procedure Code,
2004 (CPC) provide for summary trial among other provisions. In spite of the
above, justice delivery in Nigeria is marred with avoidable delays. In fact, in
the very cases where the courts appeared to deprecate or chide protracted
litigations, same cases lasted for five, seven or even up to fourteen years. This
article is driven by the desire to find out why delay is still experienced in
administration of justice despite the extant state of the law .In doing so, the
article adopted the doctrinal method of research in which reliance was placed
primarily on the Constitution, the CPA, CPC, the ACJA as well as judicial
authorities. Reliance was also placed on secondary sources of information
such as opinions of eminent scholars expressed in books and journals. It was
found that trial within a reasonable time under Nigerian law is a legal myth
due to the activities of all the players in the administration of justice, to wit:
the parties to the cases, witnesses to parties, lawyers, the courts as the arbiter
as well as the government. It was particularly found that there is delay arising
from inadequate funding of the judiciary, incessant applications for
adjournments, non-domestication of the ACJA by many states, et cetera. It is
advocated that Government should ensure that the judiciary is adequately
funded, and that courts should sparingly grant adjournments. It is further
advocated that the ACJA should, as a matter of urgency, be domesticated by
states yet to do so, among others.

Key words: delay, dispensation, justice, trial, reasonable time speedy

*
PhD; Head, Department of International Law and Jurisprudence, Faculty of Law, Benue State
University, PMB 102119, Makurdi, Nigeria
**
BL (Abuja); LLB, Makurdi, F.B Mnyim & Co, No. 90 Ankpa Road, Makurdi, Benue State +234
8104153024; [email protected] c/o Mrs Mwuese M. Mnyim, Benue State University,
Faculty of Law, Dept. of International Law and Jurisprudence, Makurdi, Benue State
 Benue State University Law Journal. 2019/2020 | 353

Introduction
It is stating the obvious to opine that there is delay in the
administration of justice in Nigeria.1 In fact, in the very cases where
the courts appeared to deprecate or chide protracted litigations, some
of these cases lasted for five, seven or even up to fourteen years. In
Atejioye v Ayeni,2 for instance, the case lasted for fourteen (14) years.
This length of delay has pernicious consequences on the body of
evidence, the parties, the court’s memory, et cetera. A six year delay
is equally unconscionable.3 The level of delay in the administration
of justice in Nigeria is such that simple termination of contract and
fundamental human rights cases last between three (3) to five (5)
years or more in Nigerian courts.
It is regrettable that the delay holds sway in spite of the fact
that Nigerian law has amply laid down requirements for trial within a
reasonable time. The Constitution takes the lead by requiring that the
trial of cases should be done within a reasonable time and that such
trial must be before a court of competent jurisdiction.4 The
Constitution further provides a timeline for delivery of judgment to
ensure that the entire trial process comes to an end within a
reasonable time,5 and so on. Statutes have equally laid down specific
requirements as can be seen in the Administration of Criminal Justice
Act,6 Criminal Procedure Act7 and the Criminal Procedure Code.8
The ACJA, for instance, provides for the front loading of evidence at
the time of filing the charge at the Magistrates’ Court or Information
at the High Court,9 electronic recording of confessional statement,10

1
Vearumun Vitalis Tarhule, Corrections under Nigerian Law (Innovative
Communications, 2014), 203-218.
2
(1999) 6 NWLR (Pt552) 135 at 141. In, Egbo v Agbara (1997) 1 SCNQR 1, the
case lasted for over 7 years.
3
Effiom v The State (1995) 1 SCNJ 1.
4
Constitution of the Federal Republic of Nigeria, 1999 (as amended) (The
Constitution), s 36 (1) and (4) thereof.
5
Ibid, s 294 (1) thereof.
6
ACJA 2015.
7
CPA, Cap C41, Laws of the Federation of Nigeria (LFN), 2004.
8
CPC, Cap C42, LFN, 2004.
9
(n, 7), ss 376 (4) and 379 (1).
10
Ibid, s 15(4).
354 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

day to day adjournment and placement of ceilings on adjournments,11

and so on.
The Rules of Civil Procedure of the various courts have
entrenched a litany of requirements for speedy trial of cases. These
include but not limited to the front-loading system, summary
judgment procedure, use of written address, et cetera. Case law
equally lays down requirements for trial within a reasonable time.
Despite these elaborate provisions in the extant laws highlighted,
there is still delay in the administration of justice in Nigeria. This
article is aimed at discovering the reasons behind this ugly state of
affairs. In doing so, the article examines the relevant provisions of
the statutes highlighted which are aimed at speedy dispensation of
justice as well as the conduct of all the parties involved in justice
delivery in Nigeria.

Conceptual Clarifications
Trial
The word ‘trial’ is defined as ‘a legal process in which
someone who stands accused of a crime or misdemeanour is judged
in a court of law’.12 The Black’s Law Dictionary13 captures it as ‘a
formal judicial examination of evidence and determination of legal
claims in an adversary proceeding’. The first definition limits its
scope to criminal trials by adopting the words ‘… who stands
accused of a crime or misdemeanour…’ The second definition is
wide enough to cover both civil and criminal trials and this article
adopts it as apt.
It is pertinent to note that the second definition is in tandem
with the judicial formulation in Nigeria. It was held in University of
Illorin v Oyalana14 that a trial is the conclusion by a competent
tribunal of questions in issue in legal proceedings, whether civil or
criminal. The word ‘trial’ embraces all the facts before the court,
including the judgment.

11
Ibid, s 396.
12
Mairi Robinson, Chambers 21st Century Dictionary (Allied Chambers (India) Ltd,
2007), 1503.
13
A Bryan Garner, Black’s Law Dictionary (10th edn, Thomson Reuters, 2014),
1735.
14
(2001) FWLR (Pt. 83) P. 2193 at 2198.
 Benue State University Law Journal. 2019/2020 | 355

It is gratifying to note that the body conducting the trial must

be one established by law-courts and tribunals. It was held15 that
where an alleged misconduct of a student involved a crime against
the state, it is no longer a matter for internal discipline but one for a
court or tribunal seized of judicial power. Curiously, an investigation
or inquiry in proceedings by an institution or organization on the
conduct of its members is not contemplated at all when considering
the meaning of trial.
The word ‘trial’ also means the examination of evidence by a
court of competent jurisdiction so as to determine the legal claims of
parties to a case. It connotes the gamut of processes involved in a
case from the commencement to the point when judgment is finally
given. Judgment is the final stage of a trial. Simply put, ‘a trial is
demonstration and testing before a court of the cases of the
contending parties. The demonstration is by assertion of evidence
and the testing is by cross-examination and argument’.16 Certain vital
issues emerge from the foregoing definition of ‘trial’ which enhance
an understanding of the term itself. These include: assertion of
evidence; testing of evidence; before a court; trial to be in public.
By assertion of evidence it is meant that the trial is a place
where each of the contending parties whether the prosecution or
defendant (in criminal matters) or plaintiff or defendant (in civil
matters) makes assertions, that is, tries to place before the court the
respective angle of his story or case. The parties do this by giving
evidence either oral or documentary. They tell the court how they got
into contact, what gave rise to the case and the role each party
played. This giving or placing of evidence is called evidence-in-chief
because it is the main evidence of the party giving it. The testing
of evidence is done by cross-examination which simply means the
asking of questions by the opposing party to test the veracity of the
evidence placed before the court. Evidence could also be tested by
argument where the party argues that logically or legally the
evidence against him is unacceptable.

15
Garba v University of Maiduguri (1986) NSCC 245
16
Durinyav Commissioner of Police (COP) (1962) NNLR 73.
356 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

It is distillable from the definition that the trial must be

before a court, which should try to resolve all the issues of facts, law
or mixed law and fact on the evidence before it. It was held in Ikenyi
v Ofene17 that it is the duty of the court to decide between the parties
on the basis of what has been tested, demonstrated, canvassed and
argued before it. In performing this role, the courts are not
investigators and it is not for them to ask questions except to clear
ambiguity.
The trial must also be in public as required by the
Constitution18. A trial is regarded as fair only when it is done in
public. A trial is said to be in public when members of the public
have access to the tribunal though not a necessity that they be present
and that it is only in exceptional situations that trials cannot be held
in public. The issues raised and discussed are part and parcel of the
concept of trial and, taken together, present a logical, concrete and
holistic meaning or view of trial.

Reasonable Time
The pertinent question that may be asked is what is the
meaning of the phraseology ‘reasonable time’ as used in the
Constitution?19 To ensure that fair hearing is accorded to every
person whose civil rights and obligations are a matter for
determination in any proceedings, the trial itself must be conducted
within a reasonable time. Generally, no hard and fast rule can be laid
down as to what reasonable time is in any given case. This depends
upon the circumstances of each case such as the nature and
complexity of the case, the time taken by the parties to introduce
evidence, adjournments demanded by legal practitioners and the
availability of competent courts, the congested nature of the calendar
of the courts, et cetera.
This principle has been subjected to judicial interpretation.
In Yerima v Borno Native Authority,20 the court held that the trial of
the defendant was not conducted within a reasonable time when the

17
(1985) 2 NWLR (Pt 5) 126
18
(n, 4), s 36 (3) and (4).
19
Ibid, s 36 (1).
20
(1968) 1 All NLR 410, SC.
 Benue State University Law Journal. 2019/2020 | 357

prosecution knew all the witnesses and the case against or to be

brought against the defendant in a murder charge but kept the
defendant in detention for a whole year before arraignment. The
same decision was given in Ariori v Elemo21 where an action was
filed in October, 1960 but came up for trial in March, 1972 and the
trial went up to October, 1975 when judgment was finally given or
delivered. The trial judge took three (3) years, seven (7) months in
writing judgment. The court held further that the expression
‘reasonable time’ used in the Constitution22 must be taken to mean
the period of time which in the sight of justice does not wear out the
parties and their witnesses and which is required to ensure that
justice is not only done but appears to a reasonable person to have
been done.
The most crucial point to note is that what is to be
considered as a reasonable time in any proceedings depends upon the
circumstances and peculiarities of each case. The Supreme Court had
cause or occasion to aptly capture the position when it held:
There is a general saying that justice delayed is
justice denied and s 33 (1) of the 1979
Constitution gives every person the right to have
his civil rights and obligations determined by a
court after a fair hearing and within a reasonable
time… If, therefore, a party indulges in asking for
incessant and unreasonable adjournments, a trial
court should not allow him use the due process of
law to defeat the ends of justice. That court, which
is the trial court, ought to weigh the reasons given
for the application for adjournment and the
surrounding circumstances.23

It is to be noted that section 33 (1) of the 1979 Constitution

cited in the dictum above is consonant with section 36 (1) of the
extant Constitution.24 The dictum is symptomatic of the fact that the

21
(1983) SCNJ 24.
22
Constitution of the Federal Republic of Nigeria, 1963, s 22(2), impari materia
with, s 36(1). CFRN 1999
23
Salu v Egeigbon (1994) 6 SCNJ (Pt. 2) 223 at 246
24
(n, 5).
358 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

requirement of trial within a reasonable time is necessarily subject to

the facts and circumstances of each case in question. This explains
why the court25 held that the delivery of judgment fourteen (14)
months after final addresses under section 258 (1) and (4) of the
Constitution26 did not violate the right of the appellant, since given
the facts and circumstances of the case, there was no miscarriage of
justice. The court went further to give the litmus test for determining
whether delay amounts to miscarriage of justice thus: ‘It must be
shown that the facts were not properly remembered, summarised or
perceived by the learned trial judge in that judgment’.
The Supreme Court had cause to define ‘reasonable’ in
Okeke v The State27when it held thus:
The word ‘reasonable’ in its ordinary meaning
means moderate, tolerable or not excessive. What
is reasonable in relation to the question whether an
accused has a fair trial within a reasonable time
depends on the circumstances of each particular
case, including the place or country where the trial
took place, the resources and infrastructures
available to the appropriate organs in the country.
It is, therefore, misleading to use the standard or
situation of things in one or a particular country to
determine the question whether trials of criminal
cases in another country involve an unreasonable
delay. A demand for a speedy trial which has no
regard to the conditions and circumstances in this
country will be unrealistic and be worse than
unreasonable delay in trial itself.28

The court further adumbrated four factors to be considered

when determining whether the trial of a defendant was held within a
reasonable time: the length of delay, the reasons given by the
prosecution for the delay, the responsibility of the defendant for

25
Walter v Skyll Nig. Ltd (2000) FWLR (Pt. 13) 2244 at 2254-2255.
26
Constitution of the Federal Republic of Nigeria, 1979, now (n, 9), s 294(1) and (4).
27
(2003) 15 NWLR (Pt. 842) 25.
28
Ibid, 84-85.
 Benue State University Law Journal. 2019/2020 | 359

asserting his rights and the prejudice to which the defendant may be
exposed.29
The courts have held that in observing the constitutional
provision on speedy trial or trial within a reasonable time, care
should be taken to avoid undue haste and undue delay, noting that
either constitutes an infraction of the Constitution. The apex court
incisively intoned when it held that:
What is reasonable time within the purview of the
subsection is a matter to be determined on the
circumstances of every case. I may venture to
generalise, however, that undue delay and undue
haste cannot by any standard be said to be
reasonable and consequently either constitutes an
infraction of the provisions of section 33(1) of the
Constitution.30

The Court of Appeal was of the opinion that the phrase

‘reasonable time’ does not mean as long as a party to a case wishes
but that ‘reasonable time here means time that allows a party
reasonable opportunity to present his case. Reasonable opportunity
exists when a party has advance notice of what he is required to do in
the proceedings within a particular time’.31 This underscores the
importance of expeditious trial. In the same spirit, it has been held
that the fact that a lawyer holds the brief of another should not be
used as a cloak to prevent speedy trial of cases.32
For the trial to be conducted within a reasonable time,
implying that there is neither undue haste nor undue delay, there
must be balancing of acts. This entails that a judge must balance the

29
Ibid, 85.
30
Unongo v Aku (1983) 2 SCNLR 332 at 352. The s 33(1) of the Constitution of the Federal
Republic of Nigeria, 1979 referred to in this case is impari materia with n5, s 36(1). A similar
decision was reached by the Supreme Court in Danladi v Dangiri (2015) 2 NWLR (Pt. 1442)
124, (2015) All FWLR (Pt. 768) 815; Ogli Oko Memorial Farms Ltd v NACB Ltd (2008) All
FWLR (Pt. 419) 400; Abubakar v Yar’Adua (2008) 1 SC (Pt. II) 77 at 108 and 109; Uzodima
v Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30 and the Court of Appeal in Tolani v Kwara
State Judicial Service Commission (2009) All FWLR (481) 880.
31
Sylvester v Ohiakwu (2014) 5 NWLR (1401) 467 at 509 CA; Salu v Egeibon (1994) 6 SCNJ
(Pt. 2) 223 at 246.
32
Mfa v Inongha (2014) All FWLR (Pt. 727) 628 at 645 SC.
360 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

requirement of fair hearing with the requirement for hearing to be

within a reasonable time.33
Taking the discussion to the corridors of the American legal
system, it is abundantly clear that the position there is not any
different from Nigeria’s. Thus, the Supreme Court of America in
Barker v Wingo34 identified four factors (akin to those identified in
Okeke’s case above) in ascertaining whether a trial was held within a
reasonable time. For better appreciation of the position of the law,
the facts of the case are reproduced: the defendant’s trial delayed for
over five (5) years after his arrest while the government sought
numerous continuances (adjournments). When Willie Barker was
eventually brought to trial, he was convicted and given a life
sentence. The defendant did not ask for a speedy trial and did not
assert that his right to a speedy trial had been violated until three (3)
years after his arrest. Based on an evaluation of these factors in
relation to his case, the court held that Barker had not been deprived
of his due process right to a speedy trial.
This case is vital because it rejects the method of measuring
a speedy trial by the fixed time rule or the demand waiver rule. The
fixed time rule demands that a defendant be offered a trial within a
specific period of time while demand waiver rule restricts
consideration of the issue to those cases in which the defendant has
demanded a speedy trial.35 It is to be noted that the United States
Supreme Court instead took the approach that the speedy trial right
can be determined by a test balancing the actions of the government
and the defendant on a case-by-case basis.
From the foregoing, it is poignant that the concept or right to
speedy trial is relative and necessarily depends upon the
circumstances of each case. It requires the courts to balance the
conflictual interests of the parties on the one hand, and the society on
the other. It is the effectual balancing of these interests that is termed
justice which is necessarily consonant with fair hearing. No doubt, it

33
Sebastine Tar Hon, S.T. Hon’s Constitutional and Migration Law in Nigeria (Pearl
Publishers Ltd, 2016), 412 - 416.
34
(1972) 407 US 514.
35
J.S. Joseph, Introduction to Criminal Justice. (4th edn, West Publishing Co.,
1897), 356-357.
 Benue State University Law Journal. 2019/2020 | 361

is asserted that ‘law serves the interest of the individual with the
good of the society in view’36 and that ‘justice delayed is justice
denied; on the other hand, a hasty trial without the due process of law
is also justice denied’.37

Legal Framework for Trial within a Reasonable Time

The Constitution provides that in the determination of his
civil rights and obligations, including any question or determination
by or against any government or authority, a person shall be entitled
to a fair hearing within a reasonable time by a court or other tribunal
established by law and constituted in such manner as to secure its
independence and impartiality.38In the same vein, it is provided that
whenever any person is charged with a criminal offence, he shall,
unless the charge is withdrawn, be entitled to a fair hearing in public
within a reasonable time by a court or tribunal.39 Further, every court
shall deliver its judgment in writing not later than ninety days after
the conclusion of evidence and final addresses and furnish all parties
to the cause or matter determined with duly authenticated copies of
the decision within 7 days of the delivery thereof.40
The entire aim of the Administration of Criminal Justice Act,
2015 (ACJA) is to ensure quick delivery of justice.41 In furtherance of
this, the ACJA provides for electronic recording of confessional
statement,42time line of 14 days for the issuance of legal advice,43 day

36
J.N. Samba, Fundamental Concepts of Jurisprudence. (Bookmakers Publishing
Co., 2003), 80.
37
E. Malemi, The Nigerian Constitutional Law (Princeton Publishing Co., 2006), 228.
38
(n, 5), s 36 (1).
39
Ibid, s 36 (4).
40
(n, 1), s 294 (1); Odi v Osafile (1985) 1 NWLR (Pt 1) 17. It was held that the
court cannot recall parties to address it after expiration of 90 days; James Atta
Agaba, Practical Approach to Criminal Litigation in Nigeria (2nd edn, LawLords
Publications, 2014) 810 and 812; D.I. Efevwerham, Principles of Civil Procedure
in Nigeria (2nd edn, Snaap Press Ltd, 2013) 359; Bob Osamor, Criminal Procedure
Laws and Litigation Practices (2nd edn, Dee-Sage Books + Prints, 2012) 449;
Yusuf O. Ali, ‘Delay in the Administration of Justice at the Magistrate Court:
Factors Responsible and Solution.’ Retrieved from www.yusufali.net.pdf.
Accessed on 20-1-2018; Ernest Ojukwu and Chudi Nelson Ojukwu, ‘Introduction
to Civil Procedure’ (3rd edn, Helen Roberts Ltd, 2009) 325.
41
ACJA, 2015, s 1 (1).
42
Ibid, s 15 (4).
43
Ibid, s 376 (2).
362 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

to day trial and placement of ceilings on adjournment,44 consideration

of preliminary objections along with trials and delivery of ruling at
the time of judgment,45 elimination of stay of proceedings46, front
loading of evidence at the Magistrate Court47 and High Court,48 and
the permission of “a judge of the High Court who has been elevated
to the Court of Appeal to continue to sit as a High Court judge only
for the purpose of concluding any part-heard criminal matter pending
before him at the time of his elevation and shall conclude the same
within a reasonable time”49 among other provisions.
However, the Supreme Court has declared as null and void
the provisions of section 396(7) of the ACJA, 2015 in Udeogu v FRN
&2ors50 for being inconsistent with section 290(1) of the Constitution
of the FRN, 1999. Giving judgment in the said case, Ejembi Eko JSC
held that:
The enactment of s.396(7) of ACJA, 2015 is an
attempt by the National Assembly---to whittle
down the operation of s.290(1) of the 1999
Constitution. Ab initio Section 396(7) of the
ACJA, 2015 was set out to frontally contradict and
challenge the letters, substance and spirit of s.
290(1) of the 1999 Constitution. To that extent
section 396(7) of the ACJA, 2015 is inconsistent
with the Constitution, particularly s. 290(1)
thereof. Therefore, by operation of s. 1(3) of the
Constitution, s. 396(7) of the ACJA, 2015 to the
extent of its inconsistency with s. 290(1) of the
Constitution, is void.

The Criminal Procedure Act (CPA)51 and Criminal Procedure

Code (CPC)52 both provide for summary trial, among other
provisions. In the same vein, the various rules of civil procedure

44
Ibid, s 396 (3) and (4).
45
Ibid, s 396 (2).
46
Ibid, s 306.
47
Ibid, s 376 (4).
48
Ibid, s 379 (1) and (2).
49
Ibid, s.396(7).
50
SC.622c/2019 (Unreported). Delivered on 8th May,2020
51
2004, s 364 (2).
52
2004, s 157 (1).
 Benue State University Law Journal. 2019/2020 | 363

provide for front loading of evidence,53 summary judgment

procedure,54 pre-trial conference and scheduling,55 among other
provisions. All the provisions are aimed at fast tracking justice
delivery.

Conduct of Parties Involved in Justice Delivery in Nigeria

There are many people or organisations involved in the
administration of justice in Nigeria. These include the parties or
litigants, police, lawyers, ministry of justice, courts as well as
witnesses. The government is also a key player in the administration
of justice. The role played by each of the players will be discussed
hereunder.

Parties to Cases
The Prosecution/Plaintiff
It is discovered with dismay that it is the prosecution that
most often moves for countless adjournments on grounds which are
patently unreasonable ranging from his ineptitude to non-completion
of investigation as a consequence of lack of facilities.56 It has also
been observed that investigation of cases by the police is hampered
by paucity of forensic laboratories,57 lack of stationeries,
transportation, constant transfer of Investigating Police Officers
(IPOs), pure laziness on the part of IPOs and or lack of supervision
by the superior officers, corruption, deficiency in knowledge of the
IPOs, delay in duplicating case diary, assembling of witnesses,
carelessness or nonchalant attitude in the prosecution of criminal
cases, to mention a few.58

53
Benue State High Court (Civil Procedure) Rules, 2007 (hereinafter called the
Benue Rules), Order 1 Rule 1 (2); Federal High Court (Civil Procedure) Rules,
2019 (hereinafter called the FHC Rules), O. 1 R. 4; Lagos State High Court (Civil
Procedure) Rules, 2012 (hereinafter called The Lagos Rules), Preamble to the
Rules thereof; National Industrial Court of Nigeria (Civil Procedure) Rules, 2017
(hereinafter called The NIC Rules), O. 1 R. 4 (1)
54
Ibid, O. 11 R. 1 (Benue Rules); O. 11 R. 1 (Lagos Rules); O. 16 R 1 (NIC Rules).
55
Ibid, O. 25 R. 1 (1) (Benue Rules); O. 25 R. 1 (1) (Lagos Rules); O. 12 (NIC Rules).
56
Effiom (n3).
57
At the moment there is only one forensic laboratory in Nigeria located in Oshodi and caters
for all the needs of Government Departments and security agencies in the country.
58
Tarhule (n, 1) 204.
364 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

In addition, the prosecution most times opposes bail

applications on the spurious ground that the accused, if released, will
obstruct police investigation or tamper with witnesses. The
arguments taken on such bail applications delay the speedy trial of
cases. Inefficient prosecution by the police in the Magistrate’s Court
accounts for delay.59 More so, the police are not schooled in
investigation and detection of crime. As a result, they resort to
torture so as to obtain “confessional statements” from suspects. For
the court to determine the voluntariness or otherwise of such
statements, it must conduct a trial within trial which wastes time.60 It
is regrettable that the police in Nigeria prosecute to investigate
instead of investigating before embarking on prosecution.
The prosecution of criminal matters is also hampered by the
delay in the release of legal advice in the Ministry of Justice through
the office of the Director of Public Prosecution (DPP).61 It is
noteworthy that delay in the prosecution of criminal matters is
equally caused by the lukewarm attitude of the Counsel in the office
of the DPP towards the cases assigned to them.62 The police might
also decide or elect to call many witnesses even where the testimony
of a single witness would suffice to secure a conviction.63 At times, it
is the inability of the prosecution to timeously produce witnesses that
stalls criminal trials as it was the case in Japhet v State.64
Another device used by the prosecutor which stalls
proceedings in criminal matters is the phenomenon of holding
charge. The practice is that a suspect who is accused of a serious
offence is arraigned before a Magistrate Court where such Magistrate
Court lacks jurisdiction to try the offence. The Magistrate Court only
delivers a fuzzy ruling and orders the defendant to be remanded in

59
Yusuf O. Ali, ‘Delay in the Administration of Justice at the Magistrate Court:
Factors Responsible and Solution.’ Retrieved from www.yusufali.net.pdf.
Accessed on 20-1-2018, 22.
60
Tarhule Vitalis Vearumun, ‘The Administration of Criminal Justice Act as an
Instrument for Fast Tracking Criminal Justice Delivery in Nigeria’ Nigerian Bar
Association, Makurdi Branch Continuing Legal Education paper presented atRoyal
Choice Inn on June 14, 2016, 4.
61
Johnson v Lufadeju (2002) 8 NWLR (Pt.768) 196; Tarhule, (n, 1) 205.
62
Tarhule, (n, 60).
63
The State v Ajie (2000) FWLR (Pt.16)2831 at 2837
64
(2012) All FWLR (Pt. 619) 1116 at 1143, CA.
 Benue State University Law Journal. 2019/2020 | 365

prison custody without taking his plea or hearing an application for

his bail. The defendant remains in prison custody and he is brought
to the Magistrate Court from time to time only for his case to be
adjourned on several occasions pending his arraignment before a
court of competent jurisdiction.
No doubt, holding charge is uniquely police phraseology not
known to the Nigerian criminal law and jurisprudence.65 It is
pertinent to note that lack of proper investigation by the police is a
reason for the recourse to the holding charge method. That explains
why the Court of Appeal was critical of the holding charge syndrome
and deprecated same by stating that it is unknown to Nigerian law
and that a defendant detained under it is entitled to be released within
a reasonable time before trial, more so, in non-capital offences.66
This exasperating attitude has been reprehended by the Court of
Appeal in Onagoruwa v State67, of thus:
In a good number of cases, the police in this
country rush to court on what they generally refer
to as holding charge even before they conducted
investigation. Where the investigation does not
succeed in assembling the relevant evidence to
prosecute the accused to conviction the best
discretion is to abandon the matter and throw in
the towel. On no account should the prosecution
go out of its way in search of evidence to
prosecute when it is not there.

It was also held in Ogor v Kolawole68 as follows: Before the accused

is brought before the court, it should be assumed that the case is ripe
for hearing, not for further investigation. He must not be there on
mere suspicion which cannot be regarded as reasonable suspicion
under section 35 of the Constitution. If there can be no sensible and
prima facie inference that can be drawn that an offence has been
committed, then the accused cannot be deprived of his liberty even

65
Ozo v Commissioner of Police (COP) (1996)3 NWLR (Pt. 103)320
66
Enwere v COP (1993)6 NWLR (Pt.299)333 at 335; Ukatu v COP (2001) FWLR (Pt.66) 758.
67
(1993) 1 NWLR (Pt 303) 107, CA; Shagari and Others v COP (2005) All FWLR (Pt
262) 450; Jimoh v COP (2005) All FWLR (Pt. 243) 648.
68
(1985)6 NCLR 535.
366 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

for a second. There cannot be a holding charge hanging like a sword

of Damocles over an accused in court pending the completion of
investigation into the case against him.
It is worthy of note that in spite of these deprecating
comments against the menace of holding charge, there is some
authority to support the ostensible permissibility of the courts to
invoke it in appropriate circumstances. This could be gleaned from
the provisions of section 23669 and section 129(2) and (4)70. Both
sections of the statute allow a Magistrate to remand a person who has
been arrested for committing an offence pending trial. Under section
236 of the Criminal Procedure Act, the court can order the remand of
the defendant when it becomes necessary that the court cannot
proceed with the hearing of the case, but shall not normally exceed
eight days. Whilst section 129(2) and (4) of the Criminal Procedure
Code provides that such remand shall not exceed fifteen days and the
court shall record its reasons for doing so, however, the court can
further extend the period of remand on the application of the
prosecution.
It seems that both sections of the statutes attempt to provide
legislative sanctions for the practice of indefinite detention of the
defendant until the case against him is being prepared. It usually
creates an intermediate stage between arrest and institution of
criminal proceedings. It is submitted that these sections of the law
are inconsistent with the Constitution71 and thus void.72 A situation
where the defendant is before a court without his plea taken, nor bail
granted him, but remanded in prison custody cannot by any stretch of
imagination be regarded as a remand proceeding, but a holding
charge which is an offence against the personal liberty of the
defendant as guaranteed by the constitution.73
In Anaekwe v Cop,74 the appellant and nine others were
charged for conspiracy and murder before the Chief Magistrate’s
Court Onitsha on 21/12/1994. The learned Chief Magistrate ordered

69
CPA.
70
CPC
71
(n, 5), s 35 (4) and (5).
72
Ibid, s 1 (3).
73
Ibid, s 35.
74
(1996) 6 NWLR (Pt.299)320.
 Benue State University Law Journal. 2019/2020 | 367

that the defendant be remanded in prison custody. An application for

bail was filed before the High Court Onitsha. The learned Judge
refused the application mainly on the grounds that the offence
allegedly committed was murder. The applicant thereupon proceeded
to the Court of Appeal, which granted the bail and ruled that:
It is not the function of the prosecutor to rush a
charge to the Magistrate Court, a court which has
no jurisdiction to try a murder case and play for
time while investigation is in progress. The unique
police phraseology of holding charge is not known
to the criminal law. It is either a charge or not.

The holding charge, therefore, has no legal basis. To that

extent, it is an unlawful device utilised by the police for the purpose
of depriving suspects of their constitutional right of presumption of
innocence.75 The fact that the holding charge phenomenon is
manifestly unconstitutional has also been reiterated in Shagari and
Ors. v Cop,76where it was held that:
It is crystal clear that there is no formal charge
against the appellants and also there is no proof of
service. There is evidence however that the
appellants were and are still being detained or
remanded under the holding charge which going
by the numerous pronouncements of our courts
has no place in our constitutional system. It is in
fact unknown in the Nigerian law. Persons
detained under an illegal, unlawful and
unconstitutional document tagged holding charge
must unresistingly be released on bail… But by
continuing to detain them on holding charge, that
is not a judicious and judicial exercise of
discretion.

It is pertinent to note that beyond the need for granting a

defendant bail who is being detained on a holding charge, it has even
been held that it is now trite law that once a court observes that it has

75
(n, 5), s 36(5).
76
(2005)All FWLR (Pt.262)451 at 469, CA; Jimoh v COP (2005)All FWLR
(Pt.243)646; Oshinaya v COP Lagos State (2004) 21 WRN 153.
368 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

no jurisdiction to entertain the matter, the proper order to make is to

strike out the matter and not to remand the suspect because any
subsequent proceeding or order made by the court is a nullity and
consequently void.77 The holding charge is a clear abuse of process
as it may also be categorised into issuing a process for the mere
purpose of annoying or irritating the victim of the vice. It is an act
that interferes with the administration of criminal justice.78
Commenting on this ugly state of affairs, Shima79 advises that urgent
steps be taken to stop this uncanny practice. He illuminatingly
captures it thus:
It is obvious at this juncture that the practice of
detaining Nigerian citizens under a “holding
charge” has been outlawed. Yet, Nigerian Courts
behave as if nobody has spoken out against this
practice. This writer had an unpleasant experience
of moving and arguing an application for bail
before a Chief Magistrate, cited these authorities
and the Magistrate retorted that it was academic
argument. Something is obviously rotten in the
State of Denmark and drastic actions have to be
taken to clear the rot.80

Taking the discussion to civil matters, it is discovered that

the plaintiff is most at times responsible for delays in trials. Flimsy
excuses are often given as to why he (the plaintiff) cannot attend
court. It is in the light of this that it was held that although a litigant
should not be deprived of an opportunity to be heard, where a litigant
who by misjudgement or deliberate decision does not avail himself at
the trial, he should not be heard to complain.81

77
Matari v Dangaladima (1993)3 NWLR (Pt.381)265.
78
Saraki v Kotoye(1992)9 NWLR(Pt.264)156; News Watch Communications Limited
v Attah (2000)2NWLR (Pt.646) 592, SC.
79
V.A. Shima, ‘The Need for a Proper Application of the Law of Bail by Nigerian
Courts to Decongest Prisons in Nigeria’ [2012] (4) (2) Kogi State University Bi-
Annual Journal of Public Law, 322.
80
Ibid at p.322
81
Mohammed v Kpelai (2001)FWLR (Pt.69)1404 at 1408.
 Benue State University Law Journal. 2019/2020 | 369

The Defendant
In criminal matters, for instance, the defendant might feign
ill-health as it was held in Dariye v Federal Republic of Nigeria 82
and or complain that time is not enough to assemble defence
witnesses. This is achieved through numerous adjournments. In
deprecating this practice, the court held in Osayomi v State83that an
accused person should not hold the court to ransom by unreasonable
adjournments. The court lucidly echoed the unhealthy practice of a
defendant feigning ill health in the Dariye’s case84when it held that:
…There are cases where the accused develop
some rare illness which acts up just before the date
set for their trial. They jet out of the country to
attend to their health and the case is adjourned. If
the medical facilities are not available locally to
meet their medical needs it is only because due to
corruption in high places, the country cannot build
proper medical facilities…

Where such a defendant pleads insanity, the trial cannot

continue unless and until his sanity is established.85 The processes
take time and are annoying, especially where the plea of insanity is a
deliberate calculation to waste the precious time of the prosecution
and the court. The defendant in a civil matter who deliberately
refuses to attend court causes delay. Such nonchalant attitude in the
defence of cases is antithetical to the just, efficient and expeditious
administration of justice in Nigeria.86

Counsel in the Case

It is observed that one potent cause of delay by lawyers is
lack of industry. Most lawyers are lazy and hardly go to court.
Tarhule87 exquisitely captures this when he enthuses thus:

82
(2015) 10 NWLR (Pt. 1467) 325, SC.
83
(2006) All FWLR (Pt. 342) 1577 at 1597, CA.
84
(n, 81).
85
CPC, ss 324 and 238.
86
Mohammed v Kpelai(2001)FWLR (Pt.69)1415 paras A-C
87
Tarhule (n, 1) 207.
370 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

It is platitude that many lawyers are lazy and

hardly go to court preferring instead to write for
adjournments. When confronted with the simplest
of application in court, they routinely ask for an
adjournment to enable them respond to issues that
ordinarily would not have called for adjournment
if they had only kept abreast with the law.
Lawyers in this category exploit the loopholes in
the criminal procedures (and these are legion) to
request for adjournments. It has been submitted
that some legal practitioners employ dilatory
tactics in court in order to delay and frustrate the
smooth and speedy prosecution of cases. These
crossly and brutally cross-examine witnesses for
hours, most times on irrelevancies thus taking up
the precious time of the court.

Some defence counsel deliberately delay trials by requesting

for adjournments purposely to ensure the full payment of their
professional fees prior to the conclusion of the trial. The impropriety
of counsel pursuing a patently unmeritorious case (thus resorting to
countless adjournments) must be condemned as it is unprofessional
to pursue matters that are clearly without merit.88 Ali89 also posits
that unwarranted applications for adjournment are responsible for
delayed trials in Nigeria. Some defence counsel who are paid on the
basis of the number of court appearances consciously delay criminal
trials with a view to beefing up their fees.90
It is submitted that the structural organisation of the legal
profession further contributes towards delay of matters. Most law
firms are basically sole practice in outlook. Private legal practitioners
with sole practice personally handle most of their cases. Such legal
practitioners frequently experience conflict of dates in different
courts. It has been held that ‘if he (counsel) was unable for any good
reason to attend court, his duty everybody knows was to see that

88
Ibid, 8; Also, Ibama v Shell Petroleum Development Co. Ltd (2005) All FWLR (Pt
287) 832 at 849.
89
Ali (n, 59) 21.
90
Tarhule (n, 60) 5.
 Benue State University Law Journal. 2019/2020 | 371

some other members of the Bar held his brief and was in a position to
represent the accused person’.91
In Ndu v The State,92 the case was bedevilled with several
adjournments and at the instance of defence counsel, giving various
reasons such as his fees not being paid, ill-health, trying to procure
witnesses and having to travel out of jurisdiction, among other
frivolous reasons. The defendant then appealed on the ground that he
was not granted fair hearing. True to type, the Honourable Court did
not hesitate to show its displeasure at the lackadaisical attitude of the
defence counsel when it held:
The attitude of the defence counsel from the time
the prosecutor closed his case has been one
showing an unwillingness to proceed with the
defence. The frequency of applications for
adjournment was sickening and unbecoming of
counsel instructed to conduct the defence of an
accused person charged with murder.

Murder is a capital offence, once a trial of an

accused person has opened, any defence counsel in
the proceeding is not only bound to appear but
also bound to perform his duty to his client, the
failure of his client or inability of client to pay his
fees notwithstanding.93

The role of the lawyers in the use of interlocutory application

in the course of trial causes delay.94 Many such applications are
frivolous and untenable such that they should never have been filed
in the first place.95 The trend is that very soon, the burden or energy,
time and money devoted to it will leave the courts with little or no

91
Yanor v The State (1965)1 AllNLR 193
92
(1990)7 NWLR (Pt.164) 574.
93
Ibid.
94
Benny Daudu, ‘Delays, Technicalities in Electoral Matters: The Role of the Legal
Profession’ A paper presented at the Nigerian Bar Association, Makurdi Branch
Law Week on 6th June, 2014, pp 6 and 7.
95
Yemi Akinseye-George, ‘The Administration of Criminal Justice Act, 2015: An
Overview in Relation to Criminal Cases Adjudication in the Federal High Court.’
Pages 1-21. Retrieved from www.censolegs.org/publications.pdf. Accessed on
20-7-2019, p 5.
372 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

time for the substantive matters.96 The Supreme Court decried this
uncanny practice when it held in Godwin and Others v Okwey and
Others97that:
It is however unfortunate that the action which
was instituted in 1992 over the affairs of a church
is still to be set down for hearing following a
dispute over jurisdiction which could have been
taken along with the substantive matter upon
conclusion of hearing by the trial court if the need
still arises. Unfortunately, that course of action
was not followed resulting in the present delay.
Learned counsel should always keep the best
interest of the clients in view when conducting
their cases so as to minimise costs.

In Amadi v NNPC,98 a preliminary issue of jurisdiction took

the case thirteen (13) years to decide as the case went up to the
Supreme Court. The court in proffering a solution to this dilatory
tactic of interlocutory appeal said that ‘…Surely, this could have
been ended had it been that the point was taken in the course of the
proceedings in the substantive claim to enable any aggrieved party to
appeal on both the issue of jurisdiction and the judgment on merit in
the proceedings as the case may be.’
In Ekperokun v University of Lagos,99 it took the High Court
7 years to dispose of a case of wrongful termination of employment.
In Maja v Samouris,100 it took 9 years to final judgment at the
Supreme Court while in Obasohan v Omorodion,101 it took 16 years
for the final judgment to be given. In Ekpe v Oke,102 it took 17 years
and 21 years in Onagoruwa v Akinyemi.103In Nwadiagbu v
Nnadozie,104it took a very long duration of 23 years for the matter to

96
Ugba v Suswam (2012) 6 SCNJ (Pt. 12) 432; ANPP v Goni (2012) 2 SCNJ (Pt. 2) 255, SC.
97
(2010) All FWLR (Pt. 536) 410 at 420 paras A-C, SC.
98
(2000) 10 NWLR (Pt. 76) 100, SC.
99
(1986) 4 NWLR 152.
100
(2000) 7 NWLR (Pt. 765) 78, SC.
101
(2001) 13 NWLR (Pt. 728) 298, SC.
102
(2001) 19 NWLR (Pt. 721) 341, SC.
103
(2001) 13 NWLR (Pt. 729) 38, SC.
104
(2002) 12 NWLR (Pt. 727) 315, SC.
 Benue State University Law Journal. 2019/2020 | 373

be concluded. In Deduwa v Okorodudu,105the Supreme Court ordered

a retrial in 1976 and as at 2005 the case was still pending at the trial
court. It was 8 years in Dariye v FRN.106In FRN v Borishade,107 the
proceedings of the trial court were stalled for 7 years so as to await
the outcome of the appeal against its ruling. The court, in strong
terms, decried the use of interlocutory appeals to frustrate criminal
trials especially those involving politically exposed or highly placed
defendants.
Doma108 presents the statistics of delayed trials in the Federal
Capital Territory between 2009 and 2011. The statistics shows an
amazingly increasing number of cases in the courts due largely to the
menace of interlocutory appeals. The statistics is shown below:
Generally, the backlog of undecided cases
becomes an impasse for the even flow and orderly
disposition of cases because the cases keep piling
up and the time between filing of a lawsuit to
ultimate disposition keeps increasing. A recent
statistic presented by the Chief Judge of the
Federal Capital Territory High Court indicated that
in the close of the 2009/2010 legal year, it had 6,
109 ongoing cases while the 2010/2011 legal year
recorded a total of 9, 083 cases pending (an
increase of 30%). In the same 2010/2011 legal
year, the court had a total of 17, 269 cases to deal
with compared to 12, 269 in the previous year
(5000 cases more). Other commercial cities like
Lagos, Kano and Rivers have equally startling
statistics. The Supreme Court and Court of Appeal
are faced with the same backlog. Due to the
volume of appeals inundating the two courts,
especially on interlocutory matters, the dockets
of the courts are overflowing. (Underlining for
emphasis)

105
(1976) 9 & 10 SC 331, SC.
106
(2015) 10 NWLR (Pt. 1467) 325, SC; Nyame v FRN (2010) 7 (Pt. 1193) 344.
107
(2015) All FWLR (785) 227, SC.
108
Halima Doma, ‘Enhancing Justice Administration in Nigeria through Information
and Communications Technology’ [2016] (32) (2) The John Marshall Journal of
Information and Technology and Privacy Law, 89-104. Retrieved from
http://repository.jmls.edu/jitpl.pdf. Accessed on 21-7-2019.
374 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

It is conceded that unnecessary use of interlocutory

applications and motions, preliminary objections, et cetera by
lawyers is indicative of technicalities. The effect is delayed trials and
the courts have a duty to ensure that technicalities do not stand in the
way of substantial justice.109

The Courts as the Arbiter

One major cause of delay by the court is the absence of
proper case flow management. Case flow management is the
coordination of court processes and resources so that court cases
progress in timely fashion from filing to disposition.110 Okolo111
traces delay in the administration of justice in Nigeria to poor case
flow management, especially the time dedicated to court sittings. The
author opines that the more sittings a court achieves over the year the
more cases are handled and disposed. In the same vein, the author
laments the numerous public holidays in Nigeria and submits that
such account for undue delay. The author further posits:
Out of 365 days in a year, Judges do not sit during
weekends-104 days; public holidays-10 days;
yearly court vacation-60 days; Christmas vacation-
14 days; Easter vacation-14 days; conference
week-7 days; and Fridays which are reserved for
Judgments amounting to 52 days. Grand total: 261
days.112

It is submitted that albeit judges are hardworking, the

pressure of work on them is much and that they work under very
deplorable condition with meagre emolument, the 261 days taken by
public holidays is much. With this, cases can hardly be determined
expeditiously.

109
Jamin Systems Consultants Ltd v Braithwaite (1996)5 NWLR (Pt. 449) 459 at
470, CA; Yusuf v Adegoke (2007)11 NWLR (Pt.1045)332 at 368-369, SC.
110
Patrick Ocheja Okolo, ‘The Judiciary as a Vessel for the Advancement of the
Economic, Social an Political Development of Nigeria’ A paper presented at the
opening ceremony of the Benue State Judiciary 2016/2017 Legal Year on
September 17, 2016, 24.
111
Ibid, p 25.
112
Ibid, p 26.
 Benue State University Law Journal. 2019/2020 | 375

Again, lack of front loading system in the Magistrate’s Court

also causes inordinate delay,113 especially in States of the Federation
yet to domesticate the Administration of Criminal Justice Act.114 In
the same vein, the inability of most judges to give on the spot ruling
in simple applications and frequent transfer of Magistrates and
Judges cause delay.115 It has also been opined that most judges do not
sit in time and most times rise early under the pretext of picking their
children from school, taking of evidence in long hand as opposed to
electronic gadgets and that some judicial personnel, especially the
magisterial cadres, sit only three times a week.116
Each judge is expected to manage the cases filed before him
or sent to him in order to avoid congestion in his court. But when
cases come to him in rapid succession as does happen in some
jurisdictions, congestion will build up and become unavoidable,
especially where the judge fails to prioritise the business of the court.
Priority here means that judges should start the day with ex parte
applications and dispose of them quickly before considering highly
contentious matters. It is pertinent to note that even in circumstances
where cases pile up, one can easily discover a lazy judge from a
hardworking judge. This is justified because some judges crawl in
writing, others engage in unnecessary arguments with counsel during
hearing, while others cannot sit for long at a stretch. This impedes
speedy trial of cases. The dictum in Japhet v State117 is very apt thus:
It needs be respectfully stressed that it is the
responsibility of every judge to manage his court
by preventing it from becoming a dumping ground
for comatose causes which cause court congestion
thereby hampering the speedy dispensation of
justice.

Some judges make it a policy to fix only one case for a day,
if it is set down for hearing. This is unwise because where an
113
A.U. Kalu, ‘Speedy Dispensation of Justice through Effective Case Management in
Nigeria.’ 1-17. Retrieved from www.nigerianlawguru.com.pdf. Accessed on 20-7-
2019, p 15.
114
2015.
115
Tarhule (n60) 5 and (n, 1) 214.
116
Ibid.
117
(2012) All FWLR (Pt. 619) 1116 at 1143, CA.
376 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

unforeseen impediment occurs, such as illness of counsel or inability

to serve subpoenas; the result is that such a day is wasted. The effect
is that such cases pile up and where for any inextricable reasons they
are unable to write such judgments on schedule, they soon find
themselves being caught in the web of contravention of the
Constitution which mandates the courts to deliver judgment within
90 days after the adoption of final addresses by Counsel.118
Another social malaise that causes delay in the
administration of justice is corruption by the judges.119 Corruption
underpins the act of doing something with intent to give some
advantage inconsistent with official duty and the rights of others; a
fiduciary’s or an official’s use of a station or office to procure some
benefit either personally or for someone else, contrary to the right of
others.120 Judicial corruption refers to any inappropriate financial or
material gain and non-material gain, aimed at influencing the
impartiality of the judicial process by any actor within the court
system.121
A judge who is influenced does not have the interest of
justice at heart and thus employs every possible means to delay the
course of justice so as to manipulate the law. The duty of a judge is
to see that everything is done to facilitate the hearing of an action
pending before him. In so doing, he has to exercise his discretionary
power which undoubtedly belongs to the trial judge. The exercise of
this discretionary power to facilitate the hearing of the action
pending before him may however be challenged on appeal. But it is
settled principle that a Court of Appeal ought to be slow indeed to
interfere with the discretion of a trial judge.122
A judge whose hands are soiled grants almost every
frivolous application for adjournment with the concomitant effect
that those trials that should have taken a year or less end up taking
118
(n, 5), s 294.
119
Auwal Ibrahim, M.K. Adebayo and Kamal Da’ud, ‘Review of Criminal Justice
Policies: Options for Nigeria’ in Frontiers of Nigerian Law Journal [2008] (Vol 2)
(No. 2), 36.
120
Bryan, A. Garner, Black’s Law Dictionary (9th edn, West Publishing Co., 2009), 397.
121
Agbo J. Madaki, ‘Appointments and Judicial Corruption in Nigeria’ A paper
presented at the Nigeria Bar Association, Makurdi Branch Law Week hel at Royal
Choise Inn, Makurdi, 17th-23rdApril, 2017, p 10.
122
Jonason Triangles Ltd v Charles Moh and Partners (2002)9-10 SC 163 at 164.
 Benue State University Law Journal. 2019/2020 | 377

three or more years. This attitude is perturbing and unfortunately

calamitous. No wonder, Ayinla cautioned that, judges should
sparingly grant applications for adjournment.123
It is sacrosanct to pinpoint that the above discourse is not
intended to unduly emphasise speed and deemphasise the ends of
justice. Far from it and in deserving cases, courts must make haste
slowly with a view to arriving at justice. It is the undue stalling of
proceedings by judges that is decried and or censured, for such
uncouth attitude amounts to judicial coup d’ etat on the express
provision of the Constitution.124

Witnesses to Parties in the Case.

Where witnesses deliberately stay away from the court when
called to testify, the expeditious determination of the case will be
thwarted or hamstrung. The law requires the prosecution in criminal
matters to call up such witnesses reasonably necessary to prove the
guilt of the defendant and not for the prosecution to waste the time of
the court calling witnesses whose testimonies can conveniently be
dispensed with.125 One perturbing or irksome thing is that most at
times the excuses by such witnesses are patently unreasonable. This
could be sheer forgetfulness, inability to fuel his car especially where
other means exist by which to come to court, et cetera.
It is sad to note that some witnesses do not attend court by
reason of ignorance. They feel that their evidence is of no moment
and that whether they testify or not it will not affect the decision in
the case in any way. The courts keep granting applications for
adjournment at the expense of the requirement that trials be
conducted within a reasonable time. The matter is even worse where
the witnesses are star or material witnesses whose evidence the court
cannot reasonably dispense with should it reach a just decision.

123
L.A. Ayinla, ‘Fair Hearing: Is it a Magic Wand to Cure all Ills in all Milieu?’ [2009]
(3) (1) Benue State University Law Journal, 98.
124
(n, 5), 36(1).
125
Ijiofor v State (2001)FWLR (Pt.49)1457 at 1486.
378 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

The Role of Government

The first factor to be considered is delay arising from
inadequate courtrooms, infrastructural facilities and poor working
conditions as a consequence of poor funding of the judiciary. It has
been posited that ‘to say that the judiciary is underfunded is to say
the obvious.126 It has been further submitted that in some High
Courts even in urban areas because of unavailability of stand by
generators, often times, court sittings have to be adjourned when the
court rooms become too hot and there are no air conditioners or fans
to cool the court halls.127 Kwahar particularly expresses the plight of
the judiciary in the face of gross underfunding thus:
I have analysed underfunding of the judiciary at a
general level. I shall now beam my light on the
state judiciaries. Funding constraints are even
more pronounced in the states where judiciaries
rely on their respective State Governments to fund
their capital expenditure and supplement recurrent
expenditure. In most state judiciaries, court
libraries are totally non-existent and where they do
exist, they contain archaic and out dated textbooks
and law reports. Chief Executives in some states
consider it a luxury and favour to give judges
money as allowance for books. It seems some
Chief Executives take delight in keeping Chief
Judges for hours waiting for them in order for
them to beg a Governor for the release of capital
grant of sometimes a Hundred Million Naira. After
several days and weeks of waiting on the queue to
see a Governor at last His Excellency will lament
of scarcity of funds and scarcely oblige His
Lordship far less half the amount.128

126
P.T. Kwahar, ‘The Effects of the Procedure for the Appointment of Judicial
Officers on Independence of the Judiciary’ A paper presented at the 2017 Law
Week of the Nigerian Bar Association, Makurdi Branch, held at Royal Choice Inn,
Makurdi, 17th – 23rd April, 2017, 3.
127
Ibid.
128
Ibid, 3 and 4.
 Benue State University Law Journal. 2019/2020 | 379

It is the responsibility of the executive to ensure that there

are adequate court rooms, infrastructural facilities and better working
conditions for the staff of the judiciary, police and the prisons.129 In
fact, it has been opined that the judiciary is the most underfunded in
the present democratic dispensation.130 The trial of defendants who
are remanded in prison custody is often delayed due to either the
lateness in the arrival or non-arrival of such defendants in courts on
dates fixed for trial. The lack of readily available vehicles with which
to convey defendants to courts during trials accounts for such
lateness or non-arrival of such defendants in court.131
The courts, especially at the Magistrate level, lack adequate
library facilities with which to promptly discharge their judicial
functions. Consequently, cases suffer long adjournments during trials
where there is need to write a well considered ruling. In the same
vein, inappropriate appointment of judges by the executive has been
identified as one of the causes of delay in trials, since some judges
are appointed not on the basis of competence but on the basis of
political connection.132
It is regrettable to note that in spite of the very crucial role
played by the election petition tribunals, the tribunals do not have
infrastructural facilities for efficiency. It is the already insufficient
High Court rooms that are usurped and converted to election
tribunals. The cases in such High Courts suffer inordinate delay until
the final determination of the election petition cases. Again, it is the
serving judges of the High Court that are appointed to man the
tribunals. This trend is worrisome in that the cases handled by such
judges suffer delay until they complete their assignment in the
tribunals. For instance, after the 2019 elections, the Benue State High
Court 5, 6, 7 and 8 were converted to tribunals. The Honourable
judge of High Court 8 was appointed to serve as a judge of the
tribunal in Akwa Ibom State. This has been the trend since the
country’s return to democracy in 1999. In the same vein, no

129
Tarhule (n, 60) 6 and (n, 1) 198.
130
Auwal, Adebayo and Da’ud (n118) 36; Okolo (n109) 18; Aondover Kaka’an,
‘Case Management and Quick Dispensation of Justice’ [2008] (2) (2) Frontiers of
Nigerian Law Journal, 348-353.
131
Effiom (n, 3).
132
Ali, (n, 59) 21.
380 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

permanent tribunal staff are employed. Rather, it is the High Court

and Magistrate Court staff that are drafted to work as ad hoc staff in
the tribunals. This practice robs the said courts of manpower,
considerably slowing down the pace of adjudication of cases.
The poor condition of service of the judiciary staff equally
deserves mention. This is because a judge needs a comfortable
residential accommodation so as to function well. The absence of
this is a serious disincentive to work. A comfortable Lower Court
Judge is likely to achieve higher productivity than a Lower Court
Judge who is uncomfortable. One of the important areas of providing
comfort for a lower court judge is his/her residential accommodation.
The truth of the matter in Nigeria today is that most of our lower
court judges are not provided with residential accommodation.
Where they are provided at all, they are not furnished. That does not
assist the administration of justice in this country. In many
jurisdictions, stationery and office supplies are not made available to
the lower courts.133
It is regrettable to note that over two years after the
enactment of the ACJA by the National Assembly, many states of the
federation have not domesticated same. This ugly scenario is
antithetical to the speedy administration of justice. By failing to
amend the various criminal statutes or the procedure for their
implementation, the legislature cannot be said to live up to its
responsibility.134 This is true because the Criminal Code135 was first
introduced into the country in 1904 and has remained in operation
without any major amendment. Again, since the introduction in 1963
of the Penal Code136 as well as the Criminal Procedure Code,137 there
have been only cosmetic changes as regard to the jurisdiction of
Magistrates and no more.138 One of the effects of the stagnancy of

133
Kaka’an (n, 129), 353.
134
Ali, (n, 59) 22; Yemi, (n94) 5; Adelowo Stephen Asonibare and Halimat Tope Akaje, ‘E-
Path to Effective Justice Delivery: Nigerian Courts in Perspective.’ 1-15. Retrieved from
www.eprints.covenantuniversity.edu.ng.pdf. Accessed on 20-7-2019, 10.
135
Cap C38, Laws of the Federation of Nigeria (LFN), 2004.
136
Cap 89, LFN, 1963.
137
Cap C30, Laws of Northern Nigeria, 1963.
138
Tarhule (n, 1) 208.
 Benue State University Law Journal. 2019/2020 | 381

the criminal statutes and procedures has been chronicled by

Tarhule139 thus:
Archaic and complicated procedures still permeate
Nigerian criminal statutes such as the practice in
the North under the Criminal Procedure Code
whereby even if an accused person admits to
committing the offence, the Area Court judge even
if he were also a Magistrate cannot convict
without hearing evidence.140

In the case of Harunami and Ors v Borno Native

Authority,141the appellant was convicted on his own admission of
theft of cattle and sentenced to a three year imprisonment without the
prosecutor being heard or witnesses being examined. It was held on
appeal that the Native Court142 cannot convict under section 157 of
the CPC even if the accused says that he had no cause to show why
he should not be convicted and admits the offence. It is submitted that
this provision of the CPC patently defies logic. It is further contended
that the provision is only capable of unnecessarily delaying the
speedy completion of criminal trials, for there is no justifiable reason
why an accused person in such a situation should not be convicted on
his own admission.

Conclusion
This article has examined whether or not trial within a
reasonable time under Nigerian justice system is a legal myth or
reality. It is sad to discover that even in the wake of legal
requirements for speedy trial, delay still holds sway. Trial within a
reasonable time in Nigeria is, therefore, a legal myth. It has been
found that:
1. Both the prosecution and the defence are partly responsible for
delay in trials. Most IPOs are lazy. Again, there is indiscriminate
transfer of IPOs and prosecutors. Added to this is delay in the
issuance of legal advice from the office of the DPP which is

139
Ibid.
140
CPC, s 157 (3).
141
(1967) NNLR 19.
142
Now Area Court.
382 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

often used to ask for endless adjournments. Most lawyers are not
diligent in handling their clients’ cases, while the grant of
numerous adjournments by the courts stalls trial.
2 The government is equally culpable of delay in justice delivery.
The frequent transfer of Judges and Magistrates leads to delay.
Majority of members of the judiciary are not trained in
Information and Communication Technology. Again, the
judiciary is grossly underfunded and as such there is a serious
dearth of infrastructural facilities. The election petition tribunals
do not have separate court rooms but rather usurp the insufficient
High Court rooms. The election tribunals do not also have
permanent staff. It is the High Court and Magistrates’ Court
staff that work in the tribunals as ad hoc staff. More so, it is
serving High Court judges that are appointed to man election
tribunals. The prison authorities lack operational vehicles to
convey accused persons to court while many states of the
federation have not, up till now, deemed it fit to domesticate the
ACJA.

From the above findings, the following recommendations are

hereby made:
1. Serious efforts be made to have lawyers as prosecutors in both
Magistrates and High courts. For the time being, the police
authorities should avoid indiscriminate transfer of IPOs and
prosecutors. They should be allowed to work in a particular
division and court for a minimum period of five (5) years before
being transferred. Equally, the police authorities should always
ensure that prosecution witnesses are timeously brought to court
to testify. The office of the Director of Public Prosecution should
always ensure prompt release of legal advice to engender timely
prosecution of accused persons. To achieve this, States of the
federation yet to domesticate the ACJA should do so post-haste
so as to benefit from section 376(2) of the ACJA which
mandates the Attorney General of the Federation to issue and
serve legal advice within 14 days upon the receipt of the case
file. In addition to such benefit conferred by ACJA, the said
section 376(2) of the ACJA should be amended to provide for
 Benue State University Law Journal. 2019/2020 | 383

sanction in the event that the Attorney General of the Federation

fails to issue legal advice within 14 days. It is suggested that in
such a situation, the charge should be struck out for want of
diligent prosecution and the accused person discharged. Counsel
in the office of the Director of Public Prosecution should take
their job seriously by diligently prosecuting cases assigned to
them. The practice of holding charge should be completely
discarded as same is inimical to the speedy dispensation of
justice and also unconstitutional.
2 The plaintiff should always ensure that he regularly attends court
to prosecute his matter. Interlocutory applications should be
taken along with the substantive matter upon conclusion of
hearing by the trial court so that the unsuccessful party can, at
once, appeal against both the judgment in the substantive matter
as well as the ruling of the court on the interlocutory application.
Judges should take case flow management seriously so as to
bring about timely completion of cases.
3 Lawyers should always exhibit diligence in the handling of their
clients’ cases as enjoined by Rule 14 of the Rules of Professional
Conduct for Legal Practitioners.143
4 Courts should sparingly grant applications for adjournment.

The frequent transfer of Judges and Magistrates should be

avoided. A Judge or Magistrate should be allowed to man a court for
at least five (5) years before transferring him. Magistrates and judges
should only intervene in cases where necessary and in the interest of
justice. This entails avoiding unnecessary arguments with counsel in
the course of trial. There should be training and re-training of
members of the judiciary especially in Information and
Communication Technology and as a corollary, government or
administrative bodies of the judiciary should intensify the
computerisation of all courts for efficient and speedy dispensation of
justice. Government should take the bull by the horn to ensure that
the welfare of the judiciary is taken seriously by releasing sufficient
funds to cater for her needs. In the light of this, the executive arm of

143
2007.
384 | Trial Within a Reasonable Time Under Nigeria Law; A Legal Myth or Reality …

government should religiously comply with the relevant

constitutional provision which states that ‘Any amount standing to
the credit of the judiciary in the Consolidated Revenue Fund of the
state shall be paid directly to the heads of the courts
concerned.’144Separate court rooms should be built for the election
tribunals. Permanent staff should be employed to work in the
tribunals. Crucially too, retired High Court judges should be
appointed as judges of the tribunals.

144
(n, 5), s 121(3).