By Hameed Ajibola Jimoh Esq.

Sometimes, when the issue of unlawful arrest or unlawful detention is contested and or challenged by human rights activists, it is as if they are just being busy bodies! Also, sometimes, those antagonists consider and or look at the alleged offence only but without considering the need for the observance of the fundamental rights of the alleged suspect by the law enforcement agency(ies) and sometimes too, it ends up that even the alleged suspect is innocent since inception! However, what many or some of those who antagonize those human rights activists do not realize is that beyond the eyes of the unlawful arrest and the unlawful detention, some (if not many) of those alleged suspects go through a great trauma and sufferings in the hands of the law enforcement agency (including those wrongly accused or unlawfully arrested or unlawfully detained and those that are innocent).

No one knows who is the next victim! That is why it is always in the interest of the public and that of justice to always stand to defend the need for all law enforcement and security agencies of government to always observe the rule of law and to always comply with the procedures laid down by law for carrying out arrest, detention and prosecution. That is why this paper aims at calling the public to these facts as a form of sensitisation.

First and foremost, it was held by the Court of Appeal of Nigeria in the case of FIRST BANK OF NIGERIA PLC. & ORS. v. ATTORNEY-GENERAL OF THE FEDERATION & ORS. (2013) LPELR-20152(CA) thus

“It is an established principle of law that where there is evidence of arrest and detention of an applicant which were done or investigated by the respondent in an action for the enforcement of fundamental rights, it is for the respondent to show that the arrest and detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention is lawful. See EJEFOR v. OKEKE (2007) 7 NWLR [pt. 665] 373; ONAGORUWA v. IGP (1991) 5 NWLR [pt.193] 593.” Per AKOMOLAFE-WILSON, J.C.A (P. 59, paras. C-F).’.

The court further held in the First Bank’s case thus

The importance of protection of the constitutionally guaranteed rights of individuals in this country cannot be over-emphasized. This warranted the promulgation of special rules in the Fundamental Rights (Enforcement Procedure) Rules 1979 for recourse to court to protect such rights when there is perceived violation or the imminence of violation of any such rights entrenched in Section 42 of the Constitution of Federal Republic of Nigeria 1999 as amended.

It is indisputable that the EFCC Act, like the EFCC, the Police, has the right to investigate, arrest and detain any person who is suspected of the commission of any offence under the EFCC Act. Any proved detention however must be justified in law; and must be exercised in good faith in the light of the important right of each individual. This is what is at stake in this case. The power of EFCC is therefore, subject to judicial control. In my humble view the court must not shy away from such sacred responsibility.
In F.R.N v. IFEGWU (supra) Uwaifo JSC at page 1844 held thus:
“If I may say so, as far as this Court is concerned whenever an aspect of personal liberty is properly raised in any proceedings the focus on the constitutional question is intense and intensive, and a solution which projects the essence of the constitutional guarantee is preferred.”. Per AKOMOLAFE-WILSON, J.C.A (Pp. 72-73, paras. C-A).

Furthermore, for instance, one of such experiences of a victim of the unlawful arrest and unlawful detention was described by the Court of Appeal of Nigeria in the case of ANOLIEFO v. ANOLIEFO & ORS (2019) LPELR-47247(CA) thus

‘Section 35(6) of the Constitution (as amended) provides that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. See ARULOGUN V. C.O.P, LAGOS STATE & ORS. (2016) LPELR- 40190 (CA) 19-20 (E-A). SKYE BANK V. NJOKU & ORS. (2016) LPELR – 40447 (CA). The respondents stated that the appellant was released on the same day he was arrested. The appellant insisted that he was arrested on 26/9/16 and released the next day, 27/6/16. He stated that he was forced into a 14- seater bus by five armed men and he initially taught they were kidnappers. According to him, he was mercilessly beaten, stripped naked and made to sit on the floor. He was chained throughout the night and detained in cell. He also stated that the officers on night duty brought him out of the cell to a statement room but one of his legs was chained to a bench and he was deprived of sleep throughout the night but no statement was taken from him. He was not allowed to communicate with anybody as his phone was seized. The Court below held that the issue of whether the treatment meted to the appellant by the respondents amounted to inhuman and degrading treatment is not grounded on any reliefs sought. The Court below seriously erred in law because it is settled by the Constitution and case law that once the arrest and detention of a person is adjudged to be wrongful and unlawful, he is entitled to the remedy stipulated by the Constitution. He needs not specifically ask for it. See SKYE BANK PLC V. NJOKU & ORS. (SUPRA). NEMI V. A. G. LAGOS STATE (1996) 6 NWLR (PT. 452) 42 AT 55 (D – E). NURSING AND MIDWIFERY COUNCIL OF NIGERIA V. ADESINA (2016) LPELR – 40610 (CA) AT 27 (A-E). OKORO V. C. O. P. ENUGU STATE & ANOR. (2016) LPELR – 41025 (CA) AT 14 – 15 (F-D). ATT.GEN. OF LAGOS STATE V. KEITA (2016) LPELR- 40163 AT 11(B-E). It is settled law that an unlawful arrest and detention no matter how short entitles the applicant to compensation. See ARULOGUN V. C. O. P. (SUPRA) AT 13 – 14 (A – A). IWUNUNNE V. EGBUCHULEM & ORS. (2016) LPELR- 40515 (CA) AT 37 – 38 (D-F).” Per BOLAJI-YUSUFF, J.C.A. (Pp. 22-27, Paras. D-C).’.

That is why in my humble view, the time that the victim spent in the custody of the law enforcement agency or the arrestor is of no much importance than to imagine the agony, embarrassment, sufferings (both emotional and psychological) that the victim would have suffered by the mere facts of the unlawful arrest and unlawful detention. What of the societies?! How would the victim be able to convince his societies that he was innocent of the allegation of commission of offence fabricated against him (even where he was acquitted by the court of law), for instance, in a rape or murder or terrorism allegation, etc.?!

Furthermore, permit me to refer to a long case below to also make home my points in this paper where in the Court of Appeal of Nigeria held as follows in the case of: IGP & ANOR v. AGBINONE & ORS (2019) LPELR-46431(CA)

‘… it is important to add that detention no matter how short can still qualify as a breach of fundamental right, as long as such detention is adjudged unlawful. See Gusau v. Umezurike (2012) LPELR -8000; Okonkwo v. Ogbogu (1996) 5 NWLR Pt. 499 Pg. 420; Isenalumbe v. Joyce Amadin (2001) 1 CHR 458;’. Per OGUNWUMIJU, J.C.A. (Pp. 21-32, Paras. F-B).’.

It was also held in this case as follows:

‘When a report is made to the Police and it is obvious that it is purely a civil matter, whether the complainant makes a cursory complaint of threat of death just to ensure the involvement of the Police, it is the duty of the Police to make preliminary investigations. Why did the Police need to arrest him from Effurum in Delta to Port Harcourt in Rivers State? Why did they not ask him questions first to ascertain the type of transaction between the parties? It is obvious that the matter between the parties was a contractual transaction for which in any event parties could have ventilated their grievances through other lawful means other than calling on the police to interfere in what is purely a civil matter. The power of the Appellants to arrest and detain a citizen of Nigeria such as the 1st Respondent can only arise if the 1st Respondent is reasonably suspected of having committed a criminal offence or about to commit a criminal offence. No such suspicion existed. The writing or presenting of a petition against another does not in itself obviate the requirement and the need for the arresting officer to convince himself that there is a basis to suspect that an offence has been committed or about to be committed. See Dumbell v. Robebts (1994) 1 ALL E.R. 326 at 326; Okorodudu v. Oteri (1970) ANLR 199 at 203. ? Like I said earlier, the Police has power to investigate criminal complaints made to it and to prevent and detect crimes, however, that power has to be exercised reasonably. Such power is to be exercised depending on the circumstances of every occasion and most importantly in the overall interest of the society. See Fawehinmi v. IGP (2002) 7 NWLR Pt. 767 Pg. 606 (SC). In Oteri v. Okorodudu & Anor. (1970) LPELR-2824 (SC) the Supreme Court held on the definition of reasonable suspicion as follows:- “In our view the test to be applied, with the onus of proof on a defendant seeking to justify his conduct, was laid down in 1838 by Tindal, C.J. in Allen v. Wright 8 Car. and P. 522 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 the facts known to the defendant at the time, not on subsequent facts that may come to light as is shown by Wright v. Sharp [1947] L.T. 308. Lord Wright in McArdle v. Egan [1933] All E.R. Rep. 611 at 613 showed that the responsibility is ministerial and not judicial when he said:- “It has to be remembered that police officers, in determining whether or not to arrest, are not finally to decide the guilt or innocence of the person arrested. Their functions are not judicial, but ministerial.” Per OGUNWUMIJU, J.C.A. (Pp. 21-32, Paras. F-B).’.

Finally, it is my humble submission that issues of unlawful arrest and unlawful detention as well as malicious prosecution must be fought by all and sundry in the interest of justice and that all these issues would reduce drastically where there is enough trainings for the law enforcement and security agencies on the need for the respect of the fundamental rights of citizens and of course suspects and the need for them to always observe the rule of law and to always follow the laid down procedures for making arrest and detention as well as prosecution of suspects in the interest of justice.

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