By: Ugiagbe Osasere Kelvin, Esq.
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 1st
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.
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