‘PART 2 -ARREST, BAIL AND PREVENTIVE JUSTICE
Arrest generally.
Section 3. A suspect or defendant alleged or charged with committing an offence established by an Act of the National Assembly shall be arrested, investigated, inquired into, tried or dealt with according to the provisions of this Act, except otherwise provided under this Act.
A. EXPLANATORY MEMORANDUM
Introduction to Part 2: Section 3: on ‘Arrest’:
This Part first of all, provides for ‘arrest generally’ in other words ‘all procedural rules’ to be applicable to an arrest in criminal matters have been explained and provided for in this Part. It then means that nothing can be construed or interpreted as a lawful or proper arrest where carried out in contravention of what this Part (except any other part of the Act provides in addition) provides. Therefore, any security or law enforcement agency or
private person or judicial officer who is empowered to arrest under the Act, must or shall comply with the provisions or the Rules stated in this Act, else, such arrest shall be termed ‘unlawful’ or an arrest ‘improperly made’ i.e. an arrest made wrongly. The position of an ‘unlawful arrest’ and its implication might seem clear but what about the position and implication of an arrest ‘improperly made’? In my humble submission, an arrest improperly made means that ‘there was no arrest at all initially’ possibly because ‘arrest’ is a terminology of law under the Act i.e. what constitutes an arrest is a name given by the Act to mean ‘arrest’. To that extent, where an arrest is carried out in ways or means other than that stipulated or provided by the Act, it means that such an arrest was not an arrest strictly speaking and such person can not be regarded in law as having made an arrest.
An arrest improperly made also constitutes a form of an ‘unlawful arrest’, though, ‘unlawful arrest is a general term wider than the ‘arrest improperly made’. Therefore, in my humble submission, whereas ‘an unlawful arrest’ and an ‘arrest improperly made’ (in application) may have different meanings, their implications seem to me to mean the same thing especially having regard to the clear provisions of section 35(1) of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution. Section 35(1) (c) of the Constitution provides thus ‘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—(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 to such extent as may be reasonably necessary to prevent his committing a criminal offence;’ (Underlining is mine for emphasis). To this extent therefore, for there to be an ‘arrest’, such an arrest shall be in the cases provided by section 35(1)(c) of the Constitution and in accordance with a procedure permitted by law. The procedure permitted by law in this instance is the procedure permitted by the Administration of Criminal Justice Act, 2015 (as applicable to the territory of application of the Act). Therefore, the legal effect of an ‘unlawful arrest’ and an ‘arrest not properly made’ is also that in the case of the former, no arrest can be made in that instance either because the Constitution or a statute prohibits such arrest in that instance which renders any such arrest ‘unlawful’ for instance: it is unlawful to arrest a sitting Governor or his Deputy or President or Vice-President because the Constitution in section 308 prohibits such an arrest. Another instance is for an arresting person or authority to arrest an innocent person who has no connection with any criminal allegation or against whom no criminal suspicion or allegation has been made by any person. A person therefore, may only be arrested under the Act when:
i. There is either a PROBABLE CAUSE, or
ii. A WARRANT OF ARREST to apprehend the individual who is suspected to have
committed a crime.
Therefore, the arrest must further be made following the prescribed procedure. If an arrest is made outside these procedures under the Act, it will be deemed to be ‘improper’ and or ‘unlawful’ i.e. unlawful because the arrest was not done in compliance with the law i.e. the Act.
An unlawful arrest encompasses in wider terms either:
i. the act of arresting someone without proper reason; or
ii. without a warrant of arrest; or
iii. without following the prescribed procedure for lawful arrest (which in this case may also be a case of an ‘arrest improperly made’).
There are other instances than those mentioned above where a person could be arrested
unlawfully:
i. Where such a person is arrested without probable cause;
ii. Where such a person is wrongly arrested in lieu of another person or an alleged suspect which contravenes section 7 of the Act;
iii. Where such a person is arrested based on malice or personal gain;
iv. Where such a person is arrested with warrant of arrest obtained with false information given to the judge by a police officer;
v. Where such a person is arrested without following the prescribed procedure under the Act;
vi. Where such a person is arrested without mentioning his rights to him in contravention of Section 6(2) of the Act;
vii. Where such a person was arrested without mentioning the reasons for his arrest to him;
viii. Any other procedures laid down by the Act for arresting any person suspected to have committed an offence covered by the Act but which has been contravened by the arresting person or authority will also amount to ‘unlawful arrest’. All the above are procedural rules clearly provided under the Act.
In the case of Christie & another v. Leachinsky (1947)1 Al ER 567, the suspect was arrested without being told the reason for his arrest. Even though the officers might lawfully have arrested the suspect for the felony of stealing a bale of cloth, which they had reasonable grounds for suspecting, the police officer failed to inform the him the reason for his arrest.
The court held the arrest to be unlawful, stating that “Under ordinary circumstances, the police should tell a person the reason for his arrest at the time they make the arrest. If a person’s liberty is being restrained, he is entitled to know the reason behind such restraint.”
The only exception is when that person is in the actual commission of the crime, or is pursued immediately after the commission of an offence or has escaped from lawful custody as provided under Section 6 of the Act.
However, in the case of an ‘arrest improperly made’ (the latter), specifically, the person arresting another person has the power to arrest and the person purportedly arrested has a criminal allegation made against him or is in the circumstances where he could be arrested either with warrant or without warrant under the law but the power of arrest was not used by the arresting person or authority according to the laid down procedures under the Act or such power was wrongly used where in such an ‘arrest becomes improperly made’, which means that such an arresting person has not kick-started the criminal process in that circumstance or has kick-started the criminal process wrongly and the person purportedly arrested may claim against such person for breach of his personal liberty because an arrest restrains the liberty of the alleged suspect. Section 35(6) of the Constitution has already
stipulated that unlawful arrest (which includes a situation of an ‘arrest improperly made’) is entitled to ‘compensation’ and ‘public apology’ thus 35 ‘(6) Any person who is unlawfully arrested … 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.’. (Underlining is mine for emphasis). This is also well founded on the principle of ‘Ubi Jus Ibi Remedium’ a Latin Maxim. On this principle of
law, the Court of Appeal of Nigeria in the case of:
A. MOHAMMED v. A.G., IMO STATE (2022) LPELR-56972(CA) while reechoing the principle on the ‘LATIN MAXIMS – "UBI JUS IBI REMEDIUM" – The principle of ubi jus ibi remedium’ thus "The principle of ubi jus ubi remedium as the Appellant has portrayed it in the instant appeal even as fluid as it is does not
dictate to the Court the specific orders to make where a Court has the absolute discretion to act as it considers expedient. In this regard, see the case of BELLO V. A-G OYO STATE (1986) LPELR- 764(SC) where the Supreme Court in enunciating the principle of ubi jus ubi remedium stated per Karibi-Whtye thus: – "I shall before doing so dispose of a minor issue concerning the reliance on the maxim ubi jus ibi remedium. It is common ground that the claim of the Appellants falls within the provisions of the Torts law… The Respondent has contended that Counsel did not in fact advert his mind to the Torts law because his reliance on the maxim of ubi jus ibi remedium, (meaning where there is a right there is a remedy), suggested that he knew there was a
right but that there was no remedy: and is asking the Court to provide one. That may well be the case. Even in such a situation the Court cannot in the discharge of its sacred duty to do justice be inhibited by the ignorance or carelessness of counsel. The injustice resulting to the cause of the litigant from such demonstration of ignorance or carelessness does not adversely affect Counsel whose fees remain undiminished. I think I am
speaking the mind of all engaged in the administration of justice, not only in this Court but in all Courts in this country, that the day the Courts allow the inarticulacy or ignorance of counsel to determine the result of an action before it, that day will herald the unobtrusive genesis of the unwitting enthronement of injustice aided by the Court itself by default. I think it is erroneous to assume that the maxim ubi jus remedium is only an English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal
systems involved in the impartial administration of justice. It enjoins the Courts to provide a remedy whenever the Plaintiff has established a right. The Court obviously cannot do otherwise.
It is enjoined to eschew reliance on technicalities in the determination of disputes – see State v. Gwonto & Ors (1983) 1 SCNLR 142 at p. 160. The substance of the action rather than the form should be the predominating consideration. Appellants have relied on the decision of this Court in Falobi v. Falobi (1976) 1 NMLR 169, 171 to argue that even if the writ of summons and statement of claim had not specified a particular law under which the action was brought, the Court will give a remedy where the facts disclosed fall within a remedy recognized in law. I think this is a correct principle deducible from Falobi v. Falobi (supra).".
B. In ORIANZI V. ATTORNEY GENERAL RIVERS STATE (2017) 6 NWLR (Pt.1561) 224, the Supreme Court speaking on the fundamental nature of the legal maxim to the administration of justice stated thus: "The Maxim “Ubi jus, Ibi remedium” is simply the latin rendition of the above principle. The maxim is so fundamental to the administration of justice that where there is no remedy provided by common law or Statute, the Courts have been urged to create one.
The Courts cannot therefore be deterred by the novelty of an action. In other words, the law is an equal dispenser of justice, and leaves none without a remedy for his right. Wherever there is a wrong, there must be a remedy to redress that wrong. Justice, must not only be done, it must be seen to have been done.” See also OPIA V. INEC & ORS. (2014) 2 SCNJ (Pt.11) 516 at 537. ASHBY V. WHITE (1703) and adopted by the Supreme Court in BELLO V. ATTORNEY GENERAL OYO STATE (1986) 5 NWLR (Pt.45) 828.
C. In the case of Okonkwo v Ogbogu (1996) 5 NWLR (pt. 449) 422, at p. 435, paras. F-G, the Supreme Court of Nigeria held that any trespass to the person of another, however slight gives a right of action to recover at any rate nominal damages. Even where there is no physical injury, substantial damage may be awarded for the injury to the man’s dignity or for discomfort or inconvenience. Where liberty has been interfered with, damages is
given to vindicate the Plaintiff’s right even though he has not suffered any pecuniary damage. It is also not necessary for the plaintiff to give evidence of damage to establish his cause of action or to claim any specific amount of damage.
This section has already provided that a suspect or defendant alleged or charged with committing an offence established by an Act of the National Assembly shall be arrested, investigated, inquired into, tried or dealt with according to the provisions of the Act, except otherwise provided under the Act. This provision has encompassed both the general rules and the exceptions thereto. Hence, every person, security or law enforcement agency of government, judicial officer or court of law, shall comply with the laid down procedures under the Act, else, any such contravention is ‘unlawful’, for which the victim or person arrested is entitled to ‘compensation’ and ‘public apology’. See: section 35(6) of the Constitution (supra). Whatever that is ‘unlawful’ is not supported (in this instance) by the Act and such is ‘illegal’.
Furthermore, from the provisions of section 3 of the Act, it presupposes that:
i. Arrest on an allegation of an offence against any person (the subject matter under the Act) shall be in accordance with the applicable provisions of the Act except otherwise provided under the Act;
ii. Investigation into offence against any person (the subject matter under the Act) shall be in accordance with the applicable provisions of the Act except otherwise provided under the Act;
iii. Any inquiry into any crime or offence against any person shall be inquired into according to the provisions of the Act, except otherwise provided under the Act;
iv. Any trial or prosecution against any person against any crime or offence shall be tried or dealt with according to the provisions of the Act, except otherwise provided under the Act. An arrest may be made by ‘Warrant’ and may be made without ‘Warrant’. According to Jide Olakanmi of Jide Olakanmi & Co., LawLord Publication, 2015, Abuja, at Synopsis
xxxvii, arrest without warrant can be done by:
a. Police (and can also be made by other Special Security and Law enforcement agencies of government as established by statute(s);
b. Judicial officers;
c. Private persons.
1. Police: Section 18 of ACJA; sections 4 and 24 of Police Act. See: Chukwura v Police (1964) NRNLR 21, Jackson v Omorokuna (1981) (1) NCR 283. A police who effects an arrest on reasonable grounds is not liable for false imprisonment. It is immaterial that an offence has not been committed. Dallison v Caffrey (1964) 2 All E.R. 1203. See: Sections 35 of the Constitution.
2. Judge or Magistrate: A Judge or Magistrate can arrest any person who commits an offence in his presence within the judicial division or magistrate district to which he is assigned. See: section 24 of the ACJA.
3. Private Person: A private person has the power to arrest without warrant where:
a. If a person in his view commits an indictable offence; or
b. If he reasonably suspects a person to have committed a felony, or
c. If he reasonably suspects a person to have committed an offence for which the police
is entitled to arrest without warrant. See: section 20 of the ACJA.’.
One important question is ‘What is the effect of Non-Compliance with the Provisions of this Act in the Course of Arrest’?
This question finds its appropriate answer(s) under section 136 of the Act, which provides
thus
‘Irregularities in summons, warrant, service or arrest 136. Where a defendant is before a court, whether voluntarily, or on summons, or after being arrested with or without warrant, or while in custody for the same or any other offence, the trial may be held notwithstanding:
(a) any irregularity, defect, or error in the summons or warrant, or
(b) the want of any complaint on oath; or
(c) any defect in the complaint, or any irregularity in the arrest or custody of the defendant.’.
Furthermore, the Courts in the case of Okotie v C.O.P. (1959) 4 FSC 125, The State v Osler (1991) 6 NWLR (PT. 199) 576; Mattaradoma v Aliu (1995) 8 NWLR (pt. 412) 252, have held in support of the above provisions of the Act.
Also see: J.A. Agaba, Practical Approach to Criminal Litigation in Nigeria (Pre-trial & Trial Proceedings), Arin Printers, Ibadan, First Edition, 2011, at pages: 425-426. Nevertheless, as I had stated above, the aggrieved person has the option of civil remedy pursuant to section 35(6) of the Constitution and the Latim Maxim of Ubi Jus, Ibi Remedium where an arrest against his person is made unlawfully or improperly.
RECOMMENDATIONS:
I therefore humbly recommend as follows:
i. that there is need for continuous sensitization for the public on the entire provisions of the Act. This is important to enable every person to be able to know his rights under the law and the Act and to know when to take actions against any abuse of powers by any person or public authority alleging commission of an offence against such person. Also, this sensitization is necessary since private person is also allowed to make an arrest under the Act.
ii. Also, there should be a continuous training and retraining for all security and law enforcement agencies of government on the need for a strict compliance with the provisions of the Act and the consequences of failure to comply with same, especially regarding the opportunities of an aggrieved person to sue for damages in civil, notwithstanding the provisions of section 136 of the Act (supra), which provides that non-compliance with the provisions of the Act in regard to the arrest shall not restricts a court of law from trial of such criminal allegation.
iii. The Administration of Criminal Justice Monitoring Committee should ensure due compliance with the provisions of the Act by all persons and authorities of government.
iv. For an effective administration of justice, non-governmental organisations and the Nigerian Bar Association have roles to play in ensuring due compliance with the provisions of the Act by all persons and authorities of government.
CONCLUSION:
In conclusion of this discourse herein, in my next series, I shall be considering what constitutes an ‘arrest’, having regard to section 4 of the Act, among other sections of the Act, as time and space would permit me, God willing!
Email: hameed_ajibola@yahoo.com 08168292549.
