Arrest is essentially the restriction of a person’s right to personal liberty It is the taking or keeping of a person in custody by legal authority, especially in response to a criminal charge; specifically, the apprehension of someone for the purpose of securing the administration of the law, especially of bringing that person before a court. Detention is the act or fact of holding a person in custody; confinement or compulsory delay. It can also be defined as the act of keeping the arrested person in custody or confinement thereby seizing the person’s liberty.
At a recent workshop organised by Juritrust Centre for Socio Legal Research and Documentation for Magistrates in Abuja, Mr Jibrin Okutepa SAN, an experienced trial lawyer shared his views on the issue of wrongful arrests/detention and remedies open to the aggrieved. Click here for the full version of the presentation.
Excerpts –
Right to Personal Liberty
There is no doubt that the right to personal liberty is a fundamental and constitutional right. Be that as it may there are statutory provisions dealing with arrest and detention in our laws. Section 35 of the Constitution of the Federal Republic of Nigeria (as amended) 1999 has provided for exceptions to the right to personal liberty; when it comes to the detention of an individual, it provides limitations to the power to detain in Section 35 (4) and (5). The provisions regarding arrest are encompassed in Part 2, Sections 3 to 7 of the ACJA. These sections have provided not only for the procedural aspect of arrest but also for the rights of the individuals being arrested. Also see Sections 4, 18, 19, 20, 21, 22 plus 23, 24, 25 and 26 of ACJA on provisions for who can arrest.
What amounts to arrest?
The fact that the state has the power to arrest and detain brings to fore the need to ensure that the said power is not abused and the desirability to safeguard the liberties of the citizens and the individuals in the society, when they are wrongfully arrested and detained. The ACJA has therefore added and in other cases modified certain aspects of criminal law as relates to arrest and detention. For example, before the coming into force of ACJA, it was the position of law as decided by judicial authorities that holding charge was unconstitutional but the ACJA has changed all that now. The position of the law in Section 4 is that in making an arrest, the police officer or any other person making same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or by conduct. Therefore, mere words like “you are under arrest” “stop there” “follow me” or words of such nature without more are insufficient. Neither does mere invitation of a person to the police station by telephone or word of mouth.
Wrongful arrest and Detention
So what constitutes wrongful arrest and detention? A wrongful arrest simply put is arresting a person in any way that is contrary to the provisions of law guiding arrest which is applicable in a particular jurisdiction at a particular time. Any deprivation of the liberty of a person in the form of arrests and detentions not coming within the purview of the exceptions in Section 35(1) (a)-(f) of the 1999 constitution and which arrests and detentions did not follow the procedures permitted by law will be wrongful and illegal and this becomes actionable wrong. Arrest being an act which curtails an individual’s right to personal liberty is an authority statutorily created; therefore, carrying out arrest in a way that is different from the statutorily provided method makes that arrest arbitrary and wrongful.
Arrest Prior to Investigation often pointer to arbitrariness
In Nigeria in most cases if not in all cases, police and other security agencies embarked on arrest and detention before proceeding to investigate the crimes said to have been committed. In most cases, they go cap in hands to Magistrates courts and other courts to seek orders for detention of citizens. In Jim-Jaja vs. COP (supra) at 392 paras G-H, Eko, JCA, as he then was now JSC, observed that: It is false imprisonment if the plaintiff was arrested and detained by the police in consequence of a false and spiteful allegation of the complainant. If the plaintiff was arrested and detained as a result of such report of a third party and such detention is without lawful excuse both the third party and the police are liable in action for false imprisonment. The mere fact that an allegation is made against a person does not justify his arrest and detention. To justify such arrest and detention, the allegation must be founded on reasonable grounds. If the allegation or allegations is/are spurious and without basis, it cannot justify an arrest and detention.
Arrests in execution of judicial order or to prevent crime
It is trite that no person can be unlawfully arrested and detained when he has committed no offence. A person who has committed a criminal offence or reasonably suspected to have done so, may be arrested for the purpose of being arraigned in a Court of Law. Again, a person may be arrested in execution of an order of Court or to such an extent as may be reasonably necessary to prevent him from committing a Criminal offence. See Section 35 (1) of the 1999 Constitution of the Federal Republic of Nigeria. An arrest and detention under the said circumstances or any of them is justified in law and therefore excusable. Other circumstances when the personal liberty of a citizen of Nigeria would be justified and lawfully restrained are provided under Section 35 (1) (a) (b) (d) (e) and (f) of the said Constitution. Any restraint therefore of the said rights under any other circumstances would be unlawful and unconstitutional and amounts to a violation of the citizens right. See the cases of Ifemeje vs. Umuchu Community Bank Nigeria Limited & Ors, (2020) LPELR-50623(CA), P.4, paras. B-F and Okonkwo & Anor vs. Mr. Emmanuel Anyadiegwu & Ors, (2020) LPELR-50581(CA). Pp.8-9, paras. B.
Available remedies
There must be a remedy for the breach of every fundamental constitutional guaranteed right, in the Court of Appeal case of Ikott Vs. Akpan & Ors, (2021) LPELR-52672(CA), Per JAMES SHEHU ABIRIYI, JCA held that; "It is the law that any violation of a citizen's right guaranteed under the Constitution for however short a period must attract a penalty under the law. See Alaboh v. Boyes (1984) 5 NCLR 830. (Pp 5 - 6 Paras F - A)”. Judicial Remedy for a person who is unlawfully arrested and detained is constitutionally provided for in Section 35(6) of the 1999 constitution of the Federal Republic of Nigeria and it provides thus; Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, the “appropriate authority or person” means an authority or person specified by law.