It is important to note that mere words such as: “you are under arrest” or words of such nature without more are not sufficient. Neither does mere invitation to the police station by telephone, word of mouth or even a formal invitation letter. In SADIQ V. THE STATE, it was held that mere words cannot constitute arrest, except same was accompanied by restraint. The restraint meant here, is reasonable restraint and no more. Detention, on the other hand, is the physical confinement of a person to a lawful custody. Section 35(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), hereinafter referred to as “the Constitution”, provides: “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.” Such a procedure permitted by law, include the following: a) In execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty; b) By reason of his failure to comply with the order of a Court or in order to secure the fulfillment of any obligation imposed upon him 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 an extent as may be reasonably necessary to prevent his committing a criminal offence; d) In the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare; e) In the case of persons suffering from infections or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community; or f) For the purpose of preventing the unlawful entry of any person into Nigeria or the taking of proceedings relating thereto. It is the position of Barnabas C. Okoro, that detention made according to the provisions of the law, as above, is a penal process intended to keep the detainee for a minimum period of time to allow for investigation into the allegation against him, before bringing him before a Court of Competent jurisdiction. We however, quickly submit, in addition, that such time of detention must not exceed the constitutionally allowed time under section 35(5) of the Constitution. In addition to the above stated Constitutional provisions, the Police Act, by virtue of section 24 thereof, has vested the officers of the Nigeria Police Force, the power to arrest and/or detain a person without warrant if the person is: i) In the act of committing a crime; or ii) Accused by an apparently credible witness of being seen committing a crime; or iii) Seen running away from the scene of a crime pursued by others; or iv) Threatening danger to public decency. Under the same law, just like under the Constitution, a Police officer may, without a warrant, arrest a person if the Police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. It is noteworthy, that, this power to arrest on reasonable suspicion of one committing an offence is drawn from the common law. At common law, a Police officer cannot lawfully arrest a person, unless the arrest is made on reasonable grounds for the purpose of achieving one or more of the following: a) To ensure the appearance of the person before a Court in respect of the offence; b) To prevent a repetition or continuation of the offence or the commission of another offence; c) To prevent the concealment, loss or destruction of evidence relating to the offence; d) To prevent harassment of, or the interference with a person who may be required to give evidence in proceedings in respect of the offence; e) To preserve the safety or welfare of the person. The Police also enjoys the common law power to arrest with respect to breach of peace. A breach of the peace occurs where “harm is done or is likely to be done to a person or the person’s property in the presence of the Police officer. Or where a person is in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance”. WHEN AN ARREST AND/OR DETENTION BY THE POLICE WOULD BE UNLAWFUL Many occasions/circumstances can give rise to an arrest and/or detention by the Police, to be unlawful. We shall briefly examine some of them. 1) Arrest without warrant where the law creating an offence provides otherwise: According toAgaba, James Atta, a warrant of arrest is an order of Courtissued to a Police officer directing him to arrest the person named therein. In practice, a warrant of arrest is issued usually in the following circumstances: a) Where the offence alleged is a serious one; or b) Where a summons has been disobeyed; or c) Where the law creating the offence provides that the person cannot be arrested without a warrant. However, we shall pointedly and quite briefly, deal with the last scenario and consequences that flow where a person is arrested without a warrant in breach of the law creating the offence which provides that an offender alleged to have committed an offence under the section must be arrested with warrant. In the case of OKOTIE V. COMMISSIONER OF POLICE(1959) 4 FSC 125, the Court agreed with the position that a defect in effecting the arrest of a person without warrant where the law creating the offence provides otherwise, would make the arrest unlawful. 2) Arrest of a person in lieu of another: A very commendable provision in the Administration of Criminal Justice Act (ACJA) 2015, is that which expressly prohibits the arrest of one in lieu of another. See section 7 of ACJA. According to Agaba, James Atta, this provision is meant to avoid a repetition of ugly situations in the past, where the Police would arrest relations of crime suspects with the goal that such arrest would make the suspect who is on the wanted list to give up himself. This practice is not only a cheap blackmail, it also unconstitutional, as the doctrine of criminal responsibility is a personal one. 3) Arrest of a person without informing the person in writing of reasons for the arrest within 24 hours: By virtue of section 35(3) of the Constitution, the law is that any person who is arrested or detained, shall be informed in writing within 24 hours(and in a language that he understands) of the facts and grounds for his arrest or detention. This provision is similar to article 5 of the European Convention on Human Rights and English law on the subject. Thus, according to Lord Simmonds, in the case of CHISTIE V. LEACHINSKY (1947) A.C 573: “…Blind unquestioning obedience is the law of tyrants and slaves. It does not yet flourish on English soil…It is a condition of lawful arrest that the man arrested should be entitled to know why he is arrested”. This means that a person is prima facieentitled to his freedom, and is only required to submit if he knows in substance the reason. Since the Constitution specifically and mandatorily states twenty-four hours by employing the use of the word “SHALL”, it is submitted that any time after this, would make the arrest unlawful and consequently renders the Police liable to unlawful arrest and detention. We are strengthened in this direction by the Supreme Court’s decision in the case of ONYEMAIZU V. OJIAKO (2010) ALL FWLR (Pt. 523) 1870. Where it was held that the use of the word “SHALL” in a legislation, generally connotes what is mandatory and not directory. According to Kehinde M. Mowoe, one of the practical considerations for this right is that it gives the accused an opportunity to explain any misunderstanding or call attention to other persons for whom he might have been mistaken, thus, saving him from the consequences of false accusation and at the same time, helping the Police in their investigation. In AGBAJE V. COMMISSIONER OF POLICE (1969) 1 NMLR 137, the complainant was held for over ten days without being told the reasons for his arrest or the authority for it. This was held to be illegal and unconstitutional. This, however, may not be insisted on, where the complainant was caught in the course of committing the offence or whilst escaping from lawful custody. See ANKWA V. THE STATE(1969) 1 ALL NLR 137. 4) Arrest made in abuse of the power of the Police to arrest on “reasonable suspicion” of a person having committed or being about to commit any felony, misdemeanor or breach of the peace: Often times, the officers of the Nigeria Police Force arrest several persons on what they consider the omnibus phrase, “reasonable suspicion” of having committed or about to commit an offence, as provided under section 24(1) of the Police Act and other relevant legislation. The burning question at this point then becomes: does the law really give or intends to give the Police an omnibus or better put, unlimited or discretionally powers to arrest and/ or detain any person on whatever seems to them (the Police) to be reasonable? We make no haste to answer this question in the negative. This is because, why the law places premium on proper security of the society, devoid of crime, it places a higher premium on the right of citizens to their personal liberty, which can only be curtailed or abridged in accordance with the law. Hence, it is the law that facts and circumstances of a case prior to the arrest are what the Court should consider in determining whether or not the arrest and/or detention was based on reasonable suspicion. In other words, the facts and circumstances within their knowledge as at the time of the arrest and/ or detention must be sufficient enoughto warrant a prudent man in believing that the applicant had committed or was committing or about to commit an offence. In the case ofC.O.P ONDO STATE V. OBOLO (1989) 5 NWLR Pt. 120, P. 130 CA. The Court of Appeal, per Salami J.C.A  (as he then was) delivering the lead judgment of the Court, stated the law thus: “The test as to what is reasonable belief that the respondent has committed an offence is objective. It is not what the appellant considered reasonable but whether the facts within their knowledge, at the time of arrest, disclosed circumstances from which it could be easily inferred that the respondent committed the offence. See OTERI V. OKORODUDU (1970) 1 ALL NLR 199. the burden of proving the legality or constitutionality of the arrest and the imprisonment is on the appellants.   This cannot be successfully done, without disclosing to the trial Court in their counter affidavit what the respondent did…It is a matter for the Courts to to determine whether or not there is good ground for the arrest, and it cannot do so if the party who knew the reasonable ground  for arresting the respondent holds on to it”.(Emphasis, mine).   The law, has therefore, crystallized to the effect that in in an action for unlawful arrest or false imprisonment, once there is evidence of arrest and detention made out in the affidavit in support of the applicant’s originating process or the facts are pleaded in the plaintiff/claimant’s statement of claim, it then behooves the respondent/defendant who is the arresting person to prove the legality or constitutionality of the said arrest and /or detention. See ONAGORUWA V. I.G.P (1991) 5 NWLR (Pt. 193) 593; EGIOFOR V. OKEKE (2007) NWLR (Pt. 665) 373 at 379, 381. The test of what is reasonable and probable ground was stated by Lewis J.S.C in the Supreme Court case of OTERI V. OKORODUDU (1970)  ALL NLR 199 at 205, thus: “In our view, the test to be applied with onus of proof on a defendant Seeking to justify his conduct, was laid down in 1838 by Tindal C.J. in ALLEN V. WRIGHT, where he said that ‘it must be that of a reasonable person acting without passion and prejudice’. The matter must be looked at objectively, and in the light of facts known to the defendants at the time, not on subsequent facts that may come to light.” Indeed, the brief of an investigating Police officer at all times therefore, is to determine, to the best of his ability, based on evidence available, whether or not a crime has been committed or about to be committed. He does have to create one where none exists. The officer neither has the right to anticipate that a criminal act may be committed nor the backing of the law to speculate whether a criminal act may have been committed. In the case of the former, the criminal act must be reasonably imminent and in the case of the latter, a criminal act must reasonably have taken place; all these, in the light of the prevailing facts, evidence available and circumstances of each case, and not more or less. In the process of investigation, a suspect may be invited for interrogation and thereafter, allowed to go home. Where such a suspect is for reasonable suspicion, founded on prima facie credible evidence, arrested, in order for the arrest and detention not to be infected with the virus of unlawful arrest, such a suspect must be arraigned in court within the period stipulated in section 35(5) of the Constitution. It is important to state here that, the highest law of the land, the Constitution has by section 46(1) empowered any Nigerian citizen whose rights has been, is being or likely to be contravened in any State in relation to him to apply to a High Court in that State for redress. In conclusion, from all that have been canvased in this article, it could be gleaned that the Police has both a proactive and reactive power of arrest and /or detention. It is proactive, where they have reasonable suspicion that a person is about to commit a crime; and reactive where they have reasonable suspicion that a crime has been committed by a person. However, in all, the law, on the above cited Supreme Court authority of OTERI V. OKORODUDU, amongst others, is that available facts and evidence must ground the suspicion of the Police, in order to escape from liability in an action for unlawful arrest and/ or detention. Therefore, the phrase, “reasonable suspicion of having committed a crime or about to commit a crime” is neither a blank check allowance nor an unfettered discretion to the Police in carrying out her powers of arrest and/ or detention. GIFT AGBAGBUO, is a constitutional lawyer, based in Port Harcourt ,MOBILE NUMBER: 08038903103., EMAIL ADDRESS: giftagbagbuo@gmail.com.]]>

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