Who Shouldered the Burden of Proof of Reasonable Suspicion

Despite the Constitution of Federal Republic of Nigeria 1999 (as amended) guarantees the fundamental right to personal Liberty under section 35(1) thereof. There are some circumstances that this right is restricted. Detention is one of the kinds to restriction of a person's liberty. When a person is detained by police officer(s) on grounds of 'reasonable suspicion', the onus of prove lies on who? In the case of  SCC (NIG.) LTD. V. GEORGE (2024) 18 NWLR (PT. 1971) 42 the explanation will focus on whom lies burden of proving reasonable suspicion of crime justifying arrest and detention of a person? 

The fact leading to the appeal before the Supreme Court vis that the 1st respondent was employed by the appellant as a labourer in 2003 and working meritoriously, he rose to the position of generator attendant. He stated that he was on night duty at the generator house on 30th November 2014 when the 2nd appellant, the Chief Security Officer of the 1st appellant, and another member of the 1st appellant’s security team entered the room around 11 pm to question him about two trucks they alleged entered the 1st appellant’s premises. The 1st respondent asserted that he told them he knew nothing about the trucks and that he did not see any truck enter the premises. The 1st respondent stated that the 2nd appellant insisted he knew about the trucks and that he must produce the trucks. He was arrested and detained for four days on suspicion of attempted theft. The respondent commenced an action at the High Court of Federal Capital Territory against the appellants and the 2nd respondent under the Fundamental Right (Enforcement Procedure) Rules. He claimed his fundamental right to personal liberty was infringed.

The appellants stated that the 2nd appellant got a tip-off about a plan by some of the 1st appellant’s employees to steal finished pipe and raw materials at the 1st appellant’s premises between the midnight of 30th November 2014 and 1st December 2014. The 2nd appellant and his colleague laid ambush at the entrance of the 1st appellant’s premises. A few minutes later, two trucks drove into the 1st appellant premises.They immediately ran towards the premises to enter it. But despite identifying themselves to the gate man, the gate was not open until about five minutes later. When they entered and walked towards the said truck, the driver drove the truck away. They noticed that there were several persons hiding in the darkness around the premises of the factory. They caught one of them who was found to be a police officer. They took him to the Bwari Divisional Police where he made a statement, mentioning several employees of the 1st appellant including the 1st respondent who connived with him. In addition, the appellants justified their suspicion of the 1st respondent’s involvement in the alleged attempted theft by asserting that he was on duty as the generator attendant and he intentionally kept the 1st appellant’s premises in darkness during the attempted theft.

The guards admitted their participation in the attempted theft and mentioned names of their co-conspirators. However, the name of the 1st respondent was not mentioned in all extra-judicial statements. However, the appellants failed to prove the involvement of the 1st respondent in the alleged crime. The 1st respondent's name was not mentioned in all the extra-judicial statements used as evidence. After hearing all of the parties, the trial court ruled in favor of the respondent, granting reliefs for false imprisonment. On appeal, the Court of Appeal affirmed the decision of the trial court and dismissed the appeal. The appellants appealed to the Supreme Court. The Supreme Court considered the appeal, focusing on constitutional provisions.

The supreme court highlighted the importance of presenting factual evidence to support arrest and detention. The law enforcement officers must have a reasonable basis to believe that a crime has been committed and that the person they are arresting is involved. The court posited:

Subsection 35(1)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is a proviso that derogates from the fundamental right to personal liberty granted under section 35(1) of the Constitution. It therefore follows that the burden of proving “reasonable suspicion” to justify the suspension or curtailment of the right lies on the person that asserts its existence. Put differently, the burden of proving that there existed a reasonable suspicion for the arrest and detention of a person lies on the person making that assertion. And the test for reasonable suspicion is an objective one. The suspicion that meets the standard of “reasonableness” must have an empirical basis". 

The party asserting has responsibility of gathering and presenting a concrete evidence. The supreme court emphasized on the test for reasonable suspicious is objective in nature. In other words, the suspicion must be empirical evidence. The suspicion needs to be established on a good substantial quality of facts. It can not be established on mere assumptions or hearsay. There is a crucial need for sound judgement on the factors the suspicion is established on. There was no required evidence to the appellants allegations on the 1st respondent. The appellants failed to connect the 1st respondent to the alleged crime. In deciding the case, the court held thus:

In this case, the appellants had the burden to proving that there existed a reasonable suspicion for the arrest of the 1st respondent on 30th November 2014 and his detention from that day until 3rd December 2014. But they failed to discharge that burden because the extra-judicial statements of the other persons arrested did not mention the name of the1 st respondent as a co-conspirator in respect of the attempted theft though the names of some other persons were mentioned as co-conspirators. 

The supreme court, in a unanimous decision, leading judgment delivered by Abubakar Sadiq Umar JSC, dismissed the appeal.

In conclusion, the instant case of SCC (Nig.) Ltd. V. George (supra) underscores the importance of objective facts as evidence to support any action established on suspicion, mere speculation or subjective beliefs are not objective facts. In this case, the appellants failed to prove reasonable suspicion for the respondent's arrest and detention. The respondent's right was infringed upon, as the appellants' actions went beyond mere reporting to the police. The police officers' action was not justifiable. This case points to, balancing person's rights in order not to be violated, and the law enforcement officers should adhere to the principle of "reasonable suspicion" for arrest and detention. It is clear that, were a person is arrested and detained by police officer(s) on 'reasonable suspicion' the burden of prove is on the person that made the assertion. 

ABOUT THE AUTHOR

Ummlkhair Adam Abdulaziz is a member of the Directorate of Research and Litigation. She can be reached via