The Unconstitutionality of an Arrest in Lieu By Amusan Tawfiiq Lekan

INTRODUCTION

In Nigeria, the Police Force is an institution established mainly with a view to maintaining public safety, law and order. The establishment of this institution is a stride believed to be capable of ushering into realization, one of the main items listed under the Fundamental Objectives and Directive Principles of State Policy as enshrined under the Chapter 2 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Quoting in extenso, sec. 14 (2) (b) of the CFRN provides that “the security and welfare of the people shall be the primary purpose of government”.

Noteworthy then is the fact that whenever an institution, particularly a law enforcement agency like the Police Force, is set up, the law setting it up will clearly set out the “aims and objectives” for which it is established as well as the extent of the powers vested in it which must not be exceeded while carrying out its functions so that, in the long run, the initial purpose(s) for which it’s established will not be carelessly defeated. It is therefore against that backdrop that sec. 4 of the Police Force (Establishment) Act, 2020 goes all out stating what should be the institution’s Modus Operandi.

WHAT IS AN ARREST IN LIEU?

Simpliciter, an arrest in lieu could be construed as a practice by which another person is arrested for the crime committed or suspected to have been committed by an absconding person— in most instances, as a result of the closeness of or relationship between the absconding suspect and the person arrested in lieu. This was a practice so rampant and popular during the operative days of the now repealed law– Police Act Cap. P19. Laws of the Federation, 2004 even though the Administration of Criminal Justice Act (2015) together with the ACJL of many states clearly and explicitly frown at such.

WHAT DOES THE LAW SAY?

Coming into force on the 17^th of September, 2020 with the concomitant legal effect of repealing the Police Act of 2004, the new law, Police Force (Establishment) Act 2020 came with a clear-cut provision prohibiting the continual display of the ugly show of an arrest in lieu. Specifically, Section 36 of the Police Act, 2020 unequivocally provides as follows:

“A person shall not be arrested in place of a suspect”

The above-quoted section is expressed in the exactitude of the provision of section 7 of the Administration of Criminal Justice Act 2015 earlier alluded to which also provides as follows;

“A person shall not be arrested in place of a suspect”

The singular implication of going contrarily to the sections quoted above would be to violate the very fundamental rights of the citizens as guaranteed by the 1999 Constitution (as amended). And, as a matter of fact, it can be argued that the existence of the Police Force as well as the rationale behind the powers bestowed upon them are not unconnected with ensuring that these same fundamental rights of the citizens are protected, and not violated.

THE CONSTITUTIONAL BREACHES

Firstly, sec. 35 (1) of the 1999 Constitution (as amended) provides that “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 the procedure permitted by law . . .”. The clear and categorical gospel this section is preaching is that, unless sanctioned by law, no citizen deserves the cruelty of having his liberty restricted.

The one million dollar question now is “do we say a restriction of one’s right to personal liberty as a result of an offence committed by another person has a sanction of the law?” No, of course not. The Nigerian Supreme Court in the case of Sunday Jimoh v. Attorney General of the Federation & 2 Ors (1998) HRLRA 513 at 515 for that reason sounded a very clear warning to the law enforcement agents who wouldn’t have regards for the rule of law to take heed. In the exact wordings of their lordships, I quote;

“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”

Secondly, the havoc of constitutional breach which the illegal practice of an arrest in lieu often wreaks, aside from the point raised above, is on the provision of sec. 36 (8) of the 1999 Constitution (as amended). This is because the power of arrest bestowed upon the Police by sec. 4 of the Police Act doesn’t extend to any matter outside the purview or scope of crime, just as also contemplated by the provision of sec. 8 (2) of the ACJA, 2015.  Sec. 36 (8) of the 1999 Constitution (as amended) is a section which seeks to prevent the punishment of citizens in whatever guise for a crime which remains unknown to law.

Seeing as it is not in issue that the power of arrest given to the Police Force is only limited to issues wherein the suspect is connected to a crime, it would therefore amount to a case of the Police self-manufacturing criminality out of the purely civil nature of parent-child or husband-wife natural relationship. Unless where it is a clear case of Conspiracy, there is no law presently in Nigeria which automatically incriminates a father just because his absconding child is suspected to have committed a crime or a wife just because her absconding husband is suspected to have committed a crime. 

Therefore, a Police officer who arrests and detains a father just because his son who is suspected to have committed a crime has absconded would be ignorantly and unlawfully punishing the innocent father for “committing” a crime which never existed in the eyes of the law. This is what the provision of sec. 36 (8) of the CFRN seeks to protect. Our apex courts have in a long-line of cases stated and restated the alienism of the practice of an arrest in lieu otherwise known as substitutional arrest to the corpus of our laws. For instance;

The Court held in the case of Akpan v State (2008) 14 NWLR (pt 1106) 72 held that;

“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 per Niki Tobi, JCA (as he then was) held emphatically that;

“There is no law that says that the sin of the son be visited on the mother simply because of that relationship. 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 “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”.

REMEDIES TO THE VICTIMS

The remedies available to a person whose fundamental right to personal liberty is breached exist almost without any qualification. It thus matters not that the period of time within which the applicant was wrongfully arrested and detained (as a result of an arrest in lieu) was quite less— even if it’s just five minutes. The only condition to which the law has subjected the applicant’s entitlement to a remedy is the clear unlawfulness of such arrest or detention.

In Gusau & Ors v Umezurike (2012) LPELR – 8000 (CA), the Court of Appeal therefore remarked as follows;

“Detention, no matter how short, can lie a breach of fundamental right. But that can only be so if the detention is adjudged wrongful or unlawful in the first place. That is, if there is no legal foundation to base the arrest and/or detention of the applicant”. Emphasis is mine,

The law then is trite that once the Court has found that the fundamental right of the applicant has been violated by the act(s) or conduct of a respondent, the affected person—  that is, the applicant— is entitled to compensation in the circumstances. That is the intent of the law in sec. 35 (6) of the 1999 Constitution (as amended) which was also echoed  in the case of  Jim-jaja v C.O.P Rivers State (2013) 22 WRN 39 at 56.  For ease of reference, the said section provides;

“Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person . . .”.

Similarly, the Court of Appeal also held in the case of Ozide & Ors v Ewuzie & Ors (2015) LPELR – 24482 CA as follows;

“The law is trite that damages in compensation legally and naturally follow every act of violation of a citizen’s fundamental human right”.

CONCLUSION

Borrowing more from the words of the learned jurist, Hon. Justice Niki Tobi, JCA (as he then was) in the case of ACB v Okonkwo (supra)— a case decided 24 years ago— where he rightly let out the censoring as regards the Police’s legally unfounded act of susbstitutional arrest;

“. . . 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 offence committed by their relations. That is a most uncivilized conduct and one that any person with a democratic mind should thoroughly detest and condemn”.

It should therefore be noted that, as a matter of law and fact, persons who are arrested in place of others have the right to approach the Court in order to enforce the breach of their fundamental rights. Those Police officers are not shielded against prosecution whenever they get power-drunk and disregard the clear letters of the law which should be held in high esteem. The letters of the law are meant to be obeyed stricto sensu, and not for the citizens— most despicably, the public officers— to be chopping and changing as per which to obey and which not to obey.

Amusan Tawfiiq Lekan is a 500L student of the Faculty of Law, Bayero University, Kano. He can be reached via vickmanbaolad@gmail.com as well as +2348108012253