On The Impropriety Of Arrest In Lieu In Nigeria By Ugiagbe Osasere Kelvin Esq.

The police force is a critical institution in the organization
of any society where law and order is expected to prevail
unrestrained. In Nigeria, however, the police force has a somewhat
jaded reputation and has been associated with inefficiency,
corruption, indiscipline and gross abuse of fundamental rights. The
average citizen and resident of Nigeria have had at least one
run-in with our Police Force and view them with ascertain degree of
wariness and distrust.

The law in Nigeria governing the Nigerian Police Force, the
police Act, predates independence and entered into force as law in
1943. The law specifically prescribes the organisation, discipline,
powers and duties of the police.

The Nigeria Police Force has a wide range of powers conferred by
laws, such as The Police Act, which have been abused by certain
officers of the force thus leading to the general distrust among
the public. More often of the police practice is the arrest of the
relatives of suspects, where the suspects are not found. The rate
at which this is done is much higher than the figure the police
respondents conceded. The powers conferred on the Nigerian Police
are vast and wide but none of these powers by any stretch of
argument means that the police can carry out its function
without recourse to the tenets of the law.
(underlining ours for emphasis).

The powers of the Police are succinctly provided in section 4 of
the Police Act. For the purpose of emphasis, the section provides
as follow:

“The police shall be employed for the prevention and
detention of crime, the apprehension of offenders, the preservation
of law and order, the protection of life and property and the due
enforcement of all laws and regulations with which they are
directly charged, and shall perform such military duties within or
outside Nigeria as may be required of them by, or under the
authority of this or any other Act.”

Accordingly, the law enforcement agencies, especially the police
are obliged to protect and respect the rights of Nigerians. Such
observance becomes more compelling, not only because Nigeria has
embraced a democratic system of government, but also because issues
of human rights have gone beyond the mere concerns of national
sovereignty and become matters for protection and enforcement by
the international community.  To this extent, the Nigeria
police will have to contend with the need for meticulous observance
of human rights in the performance of its crime prevention and
criminal justice duties.

We submit respectfully that:

The police do not have the right to arrest you for an offence
committed by another person no matter your relationship with that
person. Stories abound of family members of suspected offenders
being detained by the police when they are unable to find the
suspect. You cannot be held accountable for the crimes committed by
another person. 

The above submission has been given statutory flavour in Section
7 of the Administration of Criminal Justice Act, 2015 and other
similar state laws in Nigeria.

Most Nigerians have erroneously made their lives so vulnerable
to all sorts that some corrupt policemen capitalize on their
ignorance to unleash terror on them. The powers conferred on the
police by the law are meant to protect the citizens and not to
bully them. This is one of the services we pay taxes for.

On the need for the police to be cautious while exercising its
power to make arrests, the supreme court in DOKUBO ASARI V.
FEDERAL REPUBLIC OF NIGERIA (2007)12 NWLR (PT.1048) 320
held that:

“The powers of arrest of suspected offenders is
vested in the police and no one can take that away from them. This
general powers invested in the police to arrest and detain
suspected criminals is statutory. Section 4 of the Police Act Cap
339, LFN, 1990 provides thus:- “The police shall be employed for
the prevention and detection of crime, the apprehension of
offenders, the preservation of law and order, the protection of
life and property and the due enforcement of all laws and
regulations with which they are directly charged…”
Section 29 of the Police Act specifically empower the
Police to arrest and detain suspected persons whom the police
reasonably suspect to have stolen item in his possession. Decisions
such as Alameyesisegha Vs. Igoloiwari (2007) 7 NWLR (Pt. )
524;  Shola Abu Vs. COP CHR 18, all go to confirm the powers
of arrest and detention vested in the Police.?However in the
exercise of those powers of arrest and detention, the Police need
to be cautious in their approach given the provision of Section 35
(1) (c) of the Constitution of Federal Republic of Nigeria, 1999
(as amended). The Section provides that: “35 (1) Every person shall
be entitled to his personal liberty and no person shall be deprived
of such liberty save in the following cases and in accordance with
a procedure permitted by law- (a) … (b) … (c) for the purpose of
bringing him before a Court in execution of the order of a Court or
upon reasonable suspicion of his having committed a criminal
offence, or a such extent as may be reasonably necessary to prevent
his committing a criminal offence; (d) ……… (e) ……… (f) ……… The
personal liberty of the citizen is guaranteed under Section 35 (1)
the Constitution and same is held as sacrosanct like every other
right enshrined in Chapter iv of the Constitution. These rights are
sacred and inalienable and that is why they are fundamental, the
violation of which should be viewed as sacrilegious save in the
manner the Constitution has recognized. In other words, the right
to personal liberty and indeed all other rights enshrined under
part IV of the Constitution of Federal Republic of Nigeria, 1999
(as amended) is not absolute. (It admits of some exceptions.)
Circumstances under which a person can be lawfully arrested and
detained”

Unarguably, an arrest will be recognized as lawful only if it
was made upon reasonable suspicion that the
“person” whose arrest was made has committed a
criminal offence or to such extent as may be reasonably necessary
to prevent his committing a criminal offence. Hence, the person to
be arrested must have committed an offence known to law and not
committed by his relatives or friends (the underlining ours for
emphasis).

In any case, where the use of Police power is improperly
deployed, the Court will not hesitate to declare any such wrongful
action of the Police null and void if it is discovered that there
had been an improper use of Police power under the guise of the
so-called exercise of the power of investigation and prevention of
crimes. Consequently, in JOHN FALADE v. ATTN-GEN. LAGOS
STATE (1980) 2 NCLR 771, it was held that the Court is
always prepared and will be quick to give relief against any
improper use of power of the Police.

Similarly, in the case of IGWEOKOLO v. AKPOYIBO &
ORS (2017) LPELR-41882(CA), it was held
thus: “By all odds, the Police has the statutory power to
investigate, arrest, interrogate, search and detain any suspect:
ONAH vs. OKENWA (supra) at 536 and Section 4 of the Police Act. The
only qualification is that the power must be exercised in
accordance with the law.”

From the foregoing, it is submitted that whether or not the
police are charged with the responsibility to arrest anyone they
reasonably suspect is not in issue. What is of paramount importance
is that such responsibility must be carried out having regards to
the law. Therefore, where the arrest is carried out in total
disregards of the law and in violation of the rights of the person
arrested, the court will declare such arrest illegal and void.

The Court of Appeal in SUNDAY ODOGWU v. THE
STATE (2013) LPELR-22039(CA) made the point succinctly
when it was held that: It is beyond doubt that an
accused person cannot be held responsible for an act he did not
commit.See: Mobil Production (Nig.) Unlimited vs. Umenweke &
Ors. (2002) 9 NWLR (pt. 773) 543 @ 561.

It is submitted with respect that where the police attempts to
arrest a person for an offence committed by the relative of such
person, it will appear that the police are merely adumbrating the
principles of agency and vicarious liability, which in criminal
proceedings do not avail it. Criminal liability or responsibility
operates on mens rea. criminal liability or responsibility
is therefore personal, and not vicarious. We commend the Court of
Appeal decision in the case of ACB V. OKONKWO (1997)1 NWLR
(PT. 480) 194 where it was held that:

“there is no law that says that the sin of son be
visited on the mother simply because of that relationship. To do
that without reason will be inimical to justice. In the instant
case, it  was undoubtedly an invasion of the
1^st respondent’s right for the appellant to
cause her property to be detained when it was not shown that she
was involved in the alleged crime committed by her son who was an
employee of the appellant.”

Per TOBI JCA at  pages 207-208, paras. H-B further
remarked

“I know of no law which authorizes the police to
arrest a mother for an offence committed or purportedly committed
by the son. Criminal responsibility is personal and cannot be
transferred. While I am aware of cases of vicarious liability in
criminal law, the instant case is certainly not one. A police
officer who arrests ‘A’ for the offence committed by ‘B’ should
realize that he has acted against the law. Such a police officer
should, in addition to liability in civil action, be punished by
the police Authority.

As a matter of fact, it bothers us so much for the
police operating the law of arrest after three decades of Nigeria’s
independence to arrest and detain innocent citizens of this country
for innocent offences committed by their relations. That is a most
uncivilized conduct and one that any person with a democratic mind
should thoroughly detest and condemn.  I detest and condemn
the uncouth practice.”

It is submitted that criminal responsibility is personal. It
cannot be transferred. This is because the mens rea or
actus reus is in respect of the accused in court and not
any other person not charged. There is no law which says that
because the person who commits an offence is not found or is unable
to be arrested, the relative of such suspect should be arrested on
that ground. (See the case of AKPA V. STATE (2008)14 NWLR (PT.
1106) 72.

The law is trite that no one shall be held responsible for an
act which he did not do or cause to be done. Also, no one shall be
punished for any offence or an act which he did not commit or cause
to be committed.

It is the writer’s humble submission on this paper that the
police and other law enforcement agencies should desist from
arresting relatives/friends of a suspect they reasonably suspect to
have committed an offence as such conduct is in clear violation of
the Constitution of the Federal Republic of Nigeria 1999, the
Administration of Criminal Justice Act, 2015 and a total disregard
to equity, justice and fair play in any democratic society.

Ugiagbe Osasere Kelvin Esq. is a legal practitioner and
writes from Abuja

He could be reached via Ugiagbekel12@gmail.com^[1]
or 08156906764