StephenIntroduction:
By section 4 of the Police Act, the Nigerian Police derives its power to arrest and detain offenders of the law or those who are reasonably suspected to have committed an offence.
It is equally clear that the Nigerian Police has the power to arrest, interrogate and detain suspects in connection to a crime. This goes to explain that the power of the police to incarcerate offenders is statutory and established.
Importantly, this statutory provision of the power of the police to arrest offenders has received judicial encomium on several occasions. In Dokubo Asari v. Federal Republic of Nigeria (2007) JELR 54962 (SC), the Supreme Court held that:
“The power of arrest of suspected offenders is vested in the police and no one can take it away from them. This general power invested in the police to arrest and detain suspected criminals is statutory.”
Also, in Igweokolo v. Akpoyibo & Ors (2017) LPELR-41882 (CA) the Court of Appeal held as follows:
“By all odds, the police has the statutory power to investigate, arrest, interrogate, search and detain any suspect.” See again, Isiaka Adeboye & Ors v. Saheeto International Limited & Ors (2019) LPELR-46752(CA).
Flowing from the foregoing, the Nigerian Police enjoys both statutory and judicial backing in the exercise of its power to arrest offenders and suspects.
It must be stated, however, that the exercise of this power must be done properly and lawfully. The statutory bestowment of the power on the police is not an absolute right to arrest persons without caution. Where such power is not exercised lawfully, it stands the risk of being condemned by the Court.
Thus, in Igweokolo v. Akpoyibo & Ors (2017) LLPELR-41882 (CA), the Court held that the power of arrest, detention and interrogation must be exercised by the police in accordance with the law. In the words of the learned Justice Onigbanjo of the Lagos High Court:
“By all odds, the police has the statutory power to investigate, arrest, interrogate, search and detain any suspect. The only qualification is that the power must be exercised in accordance with the law”
Furthermore, in Falade v. Attorney General of Lagos (1980) 2 NCLR 771, the Court held that no Court would fold its arms to see the police act beyond the power conferred on them by the law. In the words of the Court:
“The court is always ready and will be quick to give reliefs against any improper use of power of the police”
Similarly, in Sunday Jimoh v. Attorney General of the Federation (1998) HRL RA 513 at 515 , the Supreme Court quipped:
“Those who feel called upon to deprive other persons of their personal liberty in the discharge of what they consider their duty should strictly observe the terms and rule of law.”
Substitutional Arrest: The Law Proper
Substitutional arrest is the arrest of one person in lieu of another. It occurs when a person who has not committed or has not been alleged of committing any offence is arrested because their friend or relative who is alleged of committing an offence cannot be found by the police.
The rationale for this is that when an offender’s relative, especially father or mother, is arrested, such person will be left with no choice than to come out of their hiding place.
In Anogwie & Ors v. Odom & Ors (2016) NGCA 90, the Appellants were arrested by the police and detained for over three weeks on allegations of conspiracy to commit fraud, fraud and stealing.
In truth, all that happened was that the first respondent was owed a debt by the appellants. The police used force to make the appellant pay the debt, using detention as the propeller for the payment.
In the end, the Appellants filed an application for the enforcement of fundamental human right, seeking, inter alia, a declaration that the arrest and detention of the four Appellants amounts to a violation of their fundamental right. The Appellants also sought Ten million Naira damages for the alleged violation.
The trial court found that the arrest was in breach of the right to personal liberty as contained in section 35 of the Nigerian Constitution. The Court therefore granted five of the Appellants’ prayers but refused the prayer for the payment of ten million Naira as damages for violation of fundamental right.
Moving on, at the Court of Appeal, it was held that the detention of the four Appellants by the police was unconstitutional as it violated the provisions of Nigerian laws.
The Court further held that where the lower court found that the rights of the Appellants were breached, it had to award damages. Very worthy of note in this case is the judgment of Frederick Ozinkpowo, JCA excerpted as follows:
The court will not hesitate to declare any 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 Crime.
Generally, the law has no provision for substitutional arrest or arrest in lieu. Further, we may have to find out if the law is silent on such an important matter of breach of right.
The position of the law depends on jurisdiction. However, for this purpose, Lagos and Abuja form a clime while other states belong to another. It is necessary to examine the position of the law in the two climes.
Substitutional Arrest in Lagos and Abuja
The criminal justice laws in operation in Lagos and Abuja are not silent on the issue of substitutional arrest. The laws have specific provisions prohibiting arrest in lieu.
Section 7 of the Administration of Criminal Justice Act (ACJA), 2015, which is applicable in Abuja and all Federal Courts (such as the Federal High Court and Court of Appeal) provides as follows:
“A person shall not be arrested place of a suspect”
Similarly, section 4 of the Administration of Criminal Justice Law (ACJL) of Lagos state, 2011, applicable in Magistrate’s and High Courts in Lagos state, provides:
“No person shall be arrested in lieu of any other person”
The effect of the two sections above is that the police is clearly prohibited from arresting one person in lieu of another, irrespective of how close one person is to another.
Thus, where the police arrests one person in place of another, it is not only a violation of fundamental human right, but also an obvious disregard for administration of criminal justice laws.
In summary, as far as Lagos and Abuja are concerned, the arrest of one person in lieu of another is not only beyond the constitutional power of the police but also a violation of express provision of criminal justice laws.
Importantly, the Courts in Nigeria have unequivocally and persistently frown on substitutional arrest.
In Akpan v. State (2008) 14 NWLR (pt 1106) 72, the abhorrence of substitutional arrest by the court was made manifest when the court held expressly:
“There is no law that where the offender is unable to be arrested, his relative should be arrested”
Similarly, in ACB v. Okonkwo (1997 ) 1 NWLR (pt 480) 194 , the Court of Appeal stood a strong stand against arrest in lieu. The Court, per Niki Tobi, JCA (as he then was) said metaphorically:
“There is no law that says that the sin of the son be visited on the mother simply because of that relationship.”
This position is hinged on the fact that anyone who commits an offence is the only one who is criminally liable for their act, unless the offence was formed out of conspiracy.
The claim that the parent should be arrested because their child would not have become an offender if properly brought up is unfounded and illogical. Niki Tobi, JCA, went on to say:
“I know of no law which authorizes the police to arrest a mother for an offence committed by the son. Criminal responsibility is personal and cannot be transferred…A police officer who arrests “A” for the offence of “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”
In Sunday Odogwu v. The State (2013) LLPELR-220391 CA, the Court of Appeal examined whether the police was right in arresting a person for an offence committed by another person. The court said expressed:
“It is beyond doubt that an accused person cannot be held responsible for an act he did not commit.”
So now, from all indications and from a plethora of case laws, it will be wrong to arrest someone merely because he is related to a suspect that cannot be found.
An attempt to do that means that the police will be acting ultra vires (beyond their power). No matter how close the arrested person is to the suspect. As a matter of fact, persons who are arrested in place of others have the right to approach the court for the enforcement of fundamental rights.
Conclusively, substitutional arrest, arrest by proxy or in lieu (arrest of a person for an offence of another person) is illegal and unconstitutional in Nigeria.
It’s illegal for police or any security agency to arrest any person for an offence committed or suspected to have been committed by another person. No matter the offence and the conduct of a suspect, his family members, friends, associates, and mates cannot be arrested, charged or tried for his actions. Criminal liabilities can not be assumed, transferred or inherited. See section 35 CFRN 1999.
It should also be noted that the police officer is not protected by the Public Officers Protection Act in this case because they have acted beyond the confines of their powers. Thus, those whose rights are violated in this respect should not hesitate to institute civil actions against violating officers.
About the Author
Daniel Alagor LL.B., (Hons) FHR, ACIArb (UK) Pro democracy & Human Rights Activist. 07063618804(WhatsApp)
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