December 15, 2017 03.08PM / Legal Alert by Oserogho & Associates
It is becoming more common to find civil disputes having Police participation in contravention of the provisions of the existing applicable Laws. Recent legislation on this matter, like the Administration of Criminal Justice Act, 2015 remain blurred in day-to-day activities.
A brief examination of some of the existing Statutes and Case Law regarding Human Rights and the powers of the Police to arrest a person with or without a Warrant are provided in the following paragraphs.
Human Rights Protection
Nigeria is a signatory to both the United Nations Declaration of Human Rights, and the African Charter on Human Rights. Nigeria has also domesticated both Charters in her local Laws.
In recognition of the atrocities that cumulated into the Second World War, the United Nations Declaration of Human Rights compulsorily require Member States, who are signatories to this Charter, to treat every human being with dignity, and fairly at all times. Thus, Article 9 of this Charter provides that “No one shall be subjected to arbitrary arrest, detention or exile.”
The 1999 Constitution of the Federal Republic of Nigeria (as amended) reiterates the above provisions of the United Nations Charter on Human Rights when it guarantees in Section 35 the right of every person to his or her personal liberty except where such liberty is encumbered or restrained or controlled by the due process of the Law; i.e. the execution of a Court Order or Judgment.
The personal liberty of every person is further enshrined in the Administration of Criminal Justice Act, 2015 (“ACJA”) by among other things, guarantee to every person the right to remain silent and not answer any questions until a Lawyer or such other person of the person or suspect’s choice is present.
Protocols of Arrest
Section 4 of the Police Act empowers the Police to detect and prevent the commission of any crime, apprehend any suspected offender, preserve the Law, protect lives and properties, etc.
In the performance of its duties, the Police must ensure that it adheres to various Human Rights Protection Protocols, some of which include mandatorily informing a Suspect of the ground or grounds for an arrest except where the offence was actually committed in the presence of a Police Officer or the Suspect was fleeing the scene of the commission of an offence or escaping prior lawful custody.
A Suspect arrested by the Police also has the constitutional right to remain silent and avoid answering any question until he or she has consulted a Lawyer or any other person of his choice. The Police are also required to inform a Suspect’s next of kin or relative of any arrest, at no costs to the Suspect or the Suspect’s relatives.
The practice of a person being arrested in place of a Suspect is now prohibited by Law. A Suspect shall also not be arrested merely for committing a civil wrong or breaching a contract.
Lastly, Section 8 of the ACJA provides that every suspect shall be accorded humane and dignified treatment whilst in the custody of the Police. And no Suspect shall be subjected to any form of torture, cruel, inhumane or degrading treatment.
Warrants and Release
The commonly accepted practice is for a Suspect to be arrested with a Warrant signed by a Judge or Magistrate. At a preliminary investigative stage, a letter of invitation from the Police may be served on a person of interest.
As discussed above, where the Suspect commits the offence in the presence of a Police Officer, or flees the scene of the commission of the offence, or from lawful custody, such a Warrant of arrest may not be necessary or required.
Where a person is arrested without a Warrant for a non-capital offence, which offence is not punishable by death, and it is impracticable to arraign such a Suspect before a Court of Law with competent jurisdiction over such a matter, such a Suspect must be released on administrative Police Bail within twenty-four (24) hours of such an arrest.
A release on bail must be on reasonable conditions which ensure that the Suspect is produced whenever required in the future.
Where a Suspect, in a non-capital offence is not released with twenty-four (24) hours after arrest, a Court with competent jurisdiction can on a proper application been made on the Suspect’s behalf, order the release of such a Suspect on bail, on such conditions as the Court deems appropriate.
Case Law on Police Arrest and Contracts
Nigerian Courts have consistently held that it is unlawful for the Police to be involved in any way, in the interpretation or enforcement of contracts; and of any other civil dispute. In the case of McLaren v. Jennings, the Court of Appeal held in 2003 that it was unlawful for the Police to arrest and detain the Appellant with regard to the collection of a debt; this is as under the Law, the Police is not a debt collection Agency.
In addition to damages being awarded for any unlawful arrest and detention, an aggrieved person also has a right, under the Law of Tort, to sue both the Police and the Complainant for malicious prosecution and compensatory damages.
As commendable as the Statutes on this subject are, their correct application and enforcement in day-to-day life, continues to be a mirage, for many reasons. Prominent among these reasons is the lack of public enlightenment of the provisions of the Law on the subject; and the enforcement of the punitive deterrent consequences for any breach of the Law.
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DISCLAIMER NOTICE: This Legal Alert is a free educational material, for your general information and enlightenment ONLY. This Alert, by itself, does not create a Client/Attorney relationship. Recipients are therefore advised to seek professional legal counselling to their specific situations when they do arise. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed. This Legal Alert is protected by Intellectual Property Law and Regulations and is reproduced by Proshare Nigeria Limited under permission for the Proshare online investment community. Oserogho & Associates [ email@example.com ]
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