By Eeboade Hassan
The right and power of the police to make an arrest of a person who commits or is reasonably thought to have committed an offence under Nigerian law is undisputed by statute and the courts. The objective of an arrest is to bring the person arrested before a court or to ensure that the law is followed. An arrest serves to notify the community that a person has been charged with a crime, as well as to reprimand and dissuade the arrested person from committing more crimes.
However, this power, on many occasions, has been abused by the police, where people have been unjustifiably arrested and detained for the offence committed by another person who happens to be their relative. This practice is known as substitutional arrest. It violates the fundamental rights of the person so arrested in that circumstance and is therefore illegal.
Hence, this article examines the illegality of the ‘Substitutional Arrest’ in the realm of Nigerian law, then proceeds to explain and educate the general public on the steps to take against this unscrupulous harassment by the Nigerian police.
A QUICK OVERVIEW OF SUBSTITUTIONAL ARREST
Substitutional Arrest also known as ‘arrest by proxy’ or ‘arrest in lieu’ literally means the arrest of a person in place of another. It is a situation whereby a person who has not committed or has not been alleged of committing any offence is arrested because his or her friend or relative who is alleged of committing an offence cannot be found by the police. For example, if A kills B, then escapes arrest, and the police arrest C, who is a friend, or D, a relative of A who committed the offence, this type of arrest is known as a “substitutional arrest.”
Although this writer is well aware of the fact that the police have the statutory right to arrest, investigate and interrogate suspects. This is clearly stated in Section 4 of the Police Act, and it has received judicial support in a number of decided cases.
Section 4 of the Police Act provides that, ‘The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged….’
In Dokubo Asari v. Federal Republic of Nigeria (2007) JELR 54962 (SC) the Supreme Court held that: The power of arrest of suspected offenders is vested in the police and no one can take it away from them. See also Isiaka Adeboye & Ors v. Saheeto International limited & Ors (2019) LPELR-46752(CA).
However, this writer contends that arresting someone in place of the suspect solely because of their relationship is completely inconsistent and has no legal standing unless such a person is an accomplice or accessory to the crime.
THE POSITION OF THE LAW ON SUBSTITUTIONAL ARREST
In Nigeria, as earlier stated, everyone is distinct in the eyes of the law. So, it will be wrong to arrest someone merely because he is related to a suspect that cannot be found. What the law recognizes is that, the person who commits an offence must be the one to face the consequences of his Act. Section 7 of the Administration of Criminal Justice Act 2015 provides that:
‘A person shall not be arrested in place of a suspect’.
In the case of ACB v. Okonkwo (1997) 1 NWLR (pt 480) 194, the mother of the accused was arrested and detained by the police for the offence of her child. In delivering a judgment in that case, the late eminent jurist, Niki Tobi said: ‘I know of no law which authorizes the police to arrest a mother for an offence committed or purportedly committed by the son. Criminal responsibility is personal and cannot be transferred….a police officer who arrests ‘A’ for the offence committed by ‘B’ should realize that he acted against the law. Such a police officer should, in addition to liability in civil action be punished by the police authority.’
Similarly, In Akpan v. State (2008) 14 NWLR (pt 1106) 72, the court stated that ‘There is no law that where the offender is unable to be arrested, his relative should be arrested.’ See also Odogwu v. State (2013)LPELR-22039(CA).
Furthermore, Substitutional arrest can also be proved to have violated some fundamental rights provided by the Constitution of the Federal Republic of Nigeria 1999 as amended, especially section 35(1) which 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 a procedure permitted by law”.
The above provision implies that a person’s freedom can only be taken away in specific circumstances allowed by law. It goes without saying that any restriction of a person’s liberty without following the legal procedures is a serious offense that the law condemns. Because the objective of the law and the powers granted to the police are to promote people’s freedom and equality, the police cannot then turn around and violate that same freedom without recourse to the law.
Flowing from the forgoing, it is the conviction and submission of this writer that Substitutional arrest is unconstitutional and therefore illegal.
ACTION TO BE TAKEN AGAINST SUBSTITUTE ARREST
In Falade v. Attorney General of Lagos , the Court held that no Court would fold its arms to see the police act beyond the power conferred on them by the law. In the words of the Court:
”The court is always ready and will be quick to give reliefs against any improper use of power of the police”.
Therefore, once it is reasonable to believe that the fundamental human rights of a person have been infringed upon, such a person can approach the high court of the state where the infringement occurs. Section 46(1) of the Constitution provides that:
(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
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 the cases of Skye Bank vs. Njoku & Ors (2016) LPELR – 40447 (CA); Arulogun vs. COP, Lagos State & Ors. (2016) LPELR -40190 (CA).
Lastly, “It is further settled in law that an unlawful arrest and detention, no matter how short entitles the applicant to compensation. See Arulogun vs. COP (Supra)”. PER F. O. OHO, J.C.A
Although it is undeniable that some possible outcomes have been recorded in the case of substitutional arrest, in which a suspect reports himself to the police in order to secure the release of his detained relative(s). Despite that, the law is very concerned about the freedom of a person who has not committed an offence. Therefore, it’s clear as crystal that it’s illegal for the police to arrest a person in lieu of another. This practice amounts to a breach of fundamental human rights and the same gives the right to the person so arrested to seek compensation at the State High Court.
Hassan writes from Faculty of Law Usmanu Danfodiyo University Sokoto and can be reached via 08146216345 or firstname.lastname@example.org