By Onikepo Braithwaite
Police: Arrest by Proxy et al
Last week, I said that my piece “Sloganeering and Nigeria’s Administration of Justice Sector” was just the beginning of the story of lawlessness and our law enforcement. Today, I decided that I would continue by giving live examples.
In the past, it was not unusual for a person related to a suspect to be arrested by the Police, in lieu of that suspect if they were at large (arrest by proxy). Last week, I copiously decried the practice of arresting a person based on a mere allegation, which is a statement with no proof, instead of upon reasonable suspicion of committing a crime, let alone that a person should be arrested only because they are guilty of association – maybe related to or friendly with a person of interest or suspect. Section 7 of the Administration of Criminal Justice Act 2015 (ACJA) and Section 36 of the Police Act 2020 (PA), both now prohibit the arrest of a person in place of a suspect.
I still remember the June 12 period, when in 1993, under military rule, the wife of the Deputy Editor-in-Chief of the News Magazine, Dapo Olorunyomi, and their newborn baby (three month old) were arrested by the SSS in lieu of Mr Olorunyomi! It was an incredulously shocking new all-time low, even for a military dictatorship – detaining a baby!
But, recently, an unfortunate account that was posted on a platform that I’m on, is even worse than the Olorunyomis’ experience. The story of a man called Moses Abiodun, who was said to have been arrested by the Lagos SARS Department of the Police in 2008, in lieu of his friend who was wanted for armed robbery. By then, Nigeria was already neck-deep in a so-called democratic dispensation. Mr Abiodun’s friend was subsequently arrested and ‘died’ in SARS custody, but Mr Abiodun, though accused of conspiracy and armed robbery, was held in prison custody for 16 years without ever being formally charged, let alone that he faced trial! This shouldn’t be happening, in this day and age, but, sadly, it is.
Mr Abiodun’s fundamental rights were breached with gusto, aplomb and relish by the Nigerian authorities – see Sections 33(3)-(5) (prosecution within a reasonable time); 34 (right to dignity of a human person and freedom from degrading and inhuman treatment); 35(1)(c) (right to liberty; arrest upon reasonable suspicion); 36(1) (fair hearing); 36(5) (presumption of innocence) and 41(1) (freedom of movement) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution). It took Avocats Sans Frontierès France (Lawyers Without Borders) to secure Mr Abiodun’s unconditional release at the ECOWAS Court. How did Mr Abiodun end up staying in prison for 16 years, without being charged? A failure of the Police to forward his case file to the DPP for Advice? A failure of the Prison (Correctional) Service to keep comprehensive records of all inmates, whether convicts or those awaiting trial, so that they ensure that the Police doesn’t forget anyone in the system, or deliberately keep them there for no reason?
The other day, I ended up at the Police Headquarters on a matter which I couldn’t even call a civil disagreement, let alone a criminal one; it was a spurious petition which contained no identifiable offence. It is trite that a person can only be charged for an offence known to law, and follows therefore that, a person can only be investigated for an offence known to law. See Section 36(8) of the Constitution. It was pretty obvious that the Complainant simply had a private score to settle with the Respondent, and used the Police that was a willing tool to harass the Respondent. After the interview, unknown to us, the Police secretly photographed the Respondent and disseminated the Respondent’s photograph, so that it ended up on social media. This is a clear breach of an individual’s right to privacy, and the Respondent can sue the Police for damages – see Section 37 of the Constitution. Even if a person is an armed robbery suspect, the Police isn’t allowed to parade them publicly before the media. See for example, Section 9(A) of the Criminal Law of Lagos State 2021 (CLLS) and Ottoh Obono v IGP FHC/CA/91/2009 per Aneke J where the court declared it illegal and unconstitutional, to parade suspects before the media.
In Ogbonna v Ogbonna (2014) LPELR-22308 (CA) per Ita George Mbaba, JCA, the Court of Appeal held thus: “….the Police sometimes allow themselves to be willing tools in the hands of mischief makers to pursue evil private scores/agenda of trouble makers, like the Appellant, and compromise the law and proper function of their Office. I had cause to deprecate this in the case of Gasau v Umezurike (2012) ALL FWLR (Pt. 655) 89; (2012) 28 WRN 111 at 145 “… that the Police have no business helping parties to settle or recover debts. We also deprecated the resort by aggrieved creditors to the Police to arrest their debtors, using one guise of criminal wrong doing or another”. “Of course, a man who procures the Police to do some illicit duties for him, should be ready to face the legal consequences of that illegality, and the law is well settled on this”.
And, when the Complainant is very well connected, an unfortunate Respondent may be arrested anywhere in the country and taken to the Police Headquarters in Abuja, whether the complaint is baseless or not! Assuming that the accused person is even arrested for a known offence such as stealing in Lagos, which is a crime covered by the CLLS, they are carried to Abuja. What for? A colleague narrated a recent incident to me, where his client, the CEO of a company who let out some office space to another company in Lagos, was being harassed because some goods belonging to the Tenant were stolen. The CEO obtained a High Court order to restrain the Police from harassment, and it was duly served on the Police. Though the thieves were subsequently apprehended, the CEO was still arrested by the Police and taken to Abuja, in violation of the court order! Why?
EFCC
Like the Police, the Economic and Financial Crimes Commission (EFCC) has become notorious for overstepping its boundaries, and going beyond the remit provided by its governing law, the Economic and Financial Crimes Commission (Establishment, etc) Act 2004 (EFCC Act). It also appears to be competing neck to neck with the Police, in terms of being used as a tool of oppression against the people. Just like the Police, going to the EFCC to respond to a petition, no matter how frivolous, is tantamount to an arrest, and such Respondent would have to bail themselves therefrom with sureties. See Section 35(1)(c) of the Constitution and Section 3 of ACJA.
After the 2020 #EndSARS Protest, Government had the Central Bank of Nigeria (CBN) unlawfully freeze the accounts of those who they deemed to have spearheaded the Protest. The EFCC has also been known to instruct banks to place ‘Post No Debits’ (PND) on people’s accounts, that is, freeze their accounts without following due process.
Section 34(1) of the EFCC Act provides for the process that the EFCC must follow to freeze an account – 1) The EFCC Chairman or authorised Officer must be satisfied that the money in the account are proceeds of an offence under the EFCC Act; 2) By reason of the foregoing, apply to the court ex-parte for the power to instruct the appropriate authority to issue an order to the Bank Manager that the account of interest be frozen. In Guaranty Trust Bank v Akinsiku Adedamola & 2 Ors (2019) LPELR-47310(CA) per Tijjani Abubakar, JCA (as he then was), the Court of Appeal held inter alia that “The Economic and Financial Crimes Commission has no powers to give direct instructions to the Bank to freeze the Account of a Customer, without an order of Court, so doing constitutes a flagrant disregard and violation of the rights of a Customer”. At the lower court, the trial Judge had held thus: “Even if the Applicant was alleged to have committed a criminal offence, EFCC cannot on its own, direct the Bank to place restriction on his accounts in the Bank, without an order of Court. The law allows EFCC to come, even with ex-parte application, to obtain an order freezing the account of any suspect that has lodgements that are suspected to be proceeds of crime. No law imposes a unilateral power on the EFCC, to deal with the Applicant this way. Again, Guaranty Trust Bank has no obligation to act on EFCC’S instructions or directives, without an order of Court”. Abubakar, JCA (as he then was) also held that: “Any failure to follow due process, will render the action taken by the Commission (EFCC) a violation of the rights of the customer”.
Mr X
I am aware of a matter in which the EFCC had the accounts of Mr X which he held in several banks, both personal and corporate, frozen in 2019. To date, Mr X’s accounts have not been released, despite no evidence of wrongdoing on the part of Mr X. Similar to Moses Abiodun, Mr X’s offence was being friendly with an individual who was a person of interest to EFCC, whose accounts incidentally, were not frozen, nor was the individual ever charged to court for committing any criminal offence! What can we call this? Arresting Mr X’s accounts by proxy?
Order 43 Rule 3(1)-(2) of the High Court of Lagos State (Civil Procedure) Rules (LSCPR) provides that an ex-parte application should be accompanied with a motion on notice in respect of the application, which must be served on the other party. I am more inclined to believe that, in Mr X’s case, the EFCC didn’t obtain any ex-parte order, and because at the time, the fear of former EFCC Chairman, Ibrahim Magu was the beginning of wisdom, I suspect that the EFCC unilaterally ordered the Banks to freeze Mr X’s accounts. Assuming without conceding that EFCC did actually obtain the said ex-parte order before freezing Mr X’s account, Mr X was never served with any motion on notice as he should have been, so that he could file a counter-affidavit to deny any allegations that may have been levelled against him. A failure to follow due process, on the part of EFCC.
Order 43 Rule 3(3) of the LSCPR provides that such ex-parte order abates after 7 days – it’s been over six years. Even though Order 43 Rule 3(4) of the LSCPR allows the Judge to extend the ex-parte order for another 7 days, the court must be satisfied that a motion on notice has been served on the other party, and it’s in the interest of justice to grant the extension, especially to prevent any irreparable or serious mischief. None of these condition precedents to extend an ex-parte order were fulfilled in Mr X’s case – it is unclear if an ex-parte was obtained, and Mr X was certainly not served with any court processes, yet, EFCC, a law enforcement agency, continues to observe the law in its breach, freezing an account for more than 14 days – over 6 years, and EFCC’s actions are a flagrant violation of Mr X’s fundamental rights! An abuse an power. Also see Order 26 Rule 6-10 of the Federal High Court (Civil Procedure) Rules 2019.
The EFCC Chairman undertook to deal decisively with odd characters within his agency, in line with their laws and regulations, and instil discipline and commitment into EFCC Operatives. With cases such as that of Mr X, debt recovery and other activities which do not constitute financial crimes but are entertained there, the EFCC Chairman has his work cut out for him in terms of self-cleansing, accountability and the injection of best practices into his agency. So does the Inspector General of Police, and heads of other law enforcement agencies.
Conclusion
My dear colleagues, kindly, share some of your experiences with law enforcement. It is high time that those bad eggs within their ranks, are dealt with decisively. Nigerians have lived in fear of law enforcement, long enough. It is time for reform. It is unacceptable for those who are meant to be the custodians and enforcers of the law, to consistently oppress the citizens whom they are expected to protect, and breach their rights. This is what happens in a Police State, not a democracy. Over to you, Inspector General of Police and EFCC Chairman. The story continues…..
Onikepo.braithwaite@thisdaylive.com
