By Onikepo Braithwaite
Section 1(a) of the Minor Offences (Miscellaneous Provisions) Act 1989 (MOA) abolished the offence of wandering, while Section 1(b) thereof prohibits the detention of a person accused of a simple offence, either by the Police or in prison custody. Section 2 of the MOA defines a simple offence as one that is declared by law to be a simple offence, or an offence which is punishable by less than 6 months imprisonment. So, how is it possible that, to date, the Police still arrest people for wandering? They also make arrests based on spurious complaints that reveal no offence under the law, and can’t sustain a criminal charge. If the law does not permit a person to be detained on the allegation of committing an offence that carries less than 6 months imprisonment, how then, can it be acceptable to arrest or detain a person for something that doesn’t constitute a known offence under the law? Section 36(8) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) prohibits this.
The sum and substance of this issue of arrest and unlawful detention by the Police and agencies such as the EFCC, is that people now use these law enforcement agencies as a substitute or replacement for settling civil matters, instead of the institution of civil legal proceedings. This means that Nigerians, especially those who may be ‘strong people’ do not have a high regard for the rule of law, or that the system has somewhat failed, or a combination of both.
In Skye Bank Plc v Njoku & Ors (2016) LPELR-40447 (CA), the Applicant had filed an application to enforce his fundamental rights, because the Bank had used the Police to detain him and sign cheques to them in a matter of debt recovery, a purely contractual matter. Also see Ogbonna v Ogbonna (2014) LPELR-22308 (CA). I am not aware that indebtedness to the Bank on a loan transaction, is an offence. The essence of arresting a person, is to take them into custody and then charge them for whatever offence they are alleged to have committed. We begin to see the flaws and abuse of power, in our administration of justice system, where people are intentionally and unlawfully taken into custody when it is well known that no charge can or will follow, since there’s no offence.
The Respondent
When I was at the Police Headquarters the other day, the Complaint was that the Respondent had let out the Petitioner’s premises without his consent, allegedly making him lose rental income, and that the Respondent had shown no remorse! Where lies the criminal offence here? Assuming without conceding that the allegation was true (it was actually false), the proper thing for the Petitioner to have done, would have been to institute legal proceedings, to recover whatever rental income he claimed he had been denied. The Petitioner had forgotten to add that, he himself had unlawfully held over the Respondent’s furniture, possibly worth more than the rental income he claimed he had lost. You find that, many a time, when a Petitioner is unable to discharge the legal burden of proof to succeed in a claim, as it is trite that he who alleges must prove, he/she also takes what may seem to them to be the easier way out, and use law enforcement to bully the Respondent and get whatever they want through the back door. No civilised country, operates like this.
After the Respondent’s statement had been taken, I was handed a form to sign as surety for the Respondent. Of course, I refused to sign. The Respondent was also given some form to sign, which I advised that the Respondent mustn’t sign. What offence was the Respondent being bailed from? What charge was to be brought against the Respondent, and upon what evidence? None. It is trite that, where there’s no evidence against a person, such person must necessarily be released, let alone that there isn’t even an offence.
Ms M
Last week, I mentioned a story narrated to me by a colleague, about his client, Ms M, the CEO of a company that let out part of their office premises in Lagos to another company. The Tenant’s goods were stolen from the premises, and though the thieves were subsequently apprehended by the Police, in the interim Ms M was harassed, obviously at the behest of a ‘strong person’, to appear at the Police Headquarters, Abuja. Why Abuja? Why not Lagos? What is this penchant for conducting extra-jurisdictional arrests to Abuja, for offences that are local and not cross-border, committed within the State, when there are Police Commands in all the States of Nigeria? This is wrong. It is another example of abuse of power/using the Police as a tool of oppression. Stealing is an offence in Lagos – see Section 280-287 of the Criminal Law of Lagos State on the offence of stealing. Ms M was eventually arrested despite a court order restraining the Police from doing so, and taken to Abuja. She was detained and released on bail, 4 days later.
According to Black’s Law Dictionary, Bail is “procuring the release of a person from legal custody, by undertaking that he/she will appear at the time and place designated and submit him/herself to the jurisdiction and judgement of the court”. See Part 19 of the Administration of Criminal Justice Act 2015 (ACJA) on Bail generally.
This Black’s Law Dictionary definition, is instructive. Firstly, it assumes that the person to be bailed is in legal custody. This means that a person is in the custody of a law enforcement agency lawfully, by means of a proper arrest (which constitutionally is, arrest upon reasonable suspicion of committing a crime/criminal offence known to law – see Section 35(1)(c) of the Constitution) or a court order, and not by means of a dubious process. So, forcibly taking Ms M to the Police Headquarters, Abuja simply because she declined to go to Abuja to answer a call that, going by the provisions of the law, shouldn’t have been made in the first place, makes no sense. If, for any reason, Ms M was to have been called by the Police, it should have been the Lagos State Police Command. Only the Lagos State High Court or Magistrate Court, as the case may be, have the jurisdiction to try the thieves who have already been arrested in Ms M’s matter. See Madukolu & Ors v Nkemdilim (1962) LPELR-24023(SC) on jurisdiction.
Secondly, the definition of Bail assumes that the person has been arrested for a known offence, and they will be charged to court and appear there on the trial dates set. The definition doesn’t seem to contemplate a situation where bail is granted to someone that is arrested for a non-existent offence, which they obviously cannot be charged for, since the court has no jurisdiction to entertain the case of a non-existent offence – see Section 36(8) of the Constitution. The decision in Suleman & Anor v COP Plateau State (2008) LPELR-3126(SC) per Niki Tobi, JSC appears to support the assertion of non-contemplation of bail for non-existent offences, as it was held inter alia thus: “The effect of granting bail is not to set the accused free for all times in the criminal process, but to release him from the custody of the law, and to entrust him to appear at his trial at a specific time and place…..The freedom is temporary, in the sense that it lasts only for the period of the trial”.
A known offence is an act which has been defined as an offence by law, with its punishment also prescribed. So, in the case of the Respondent that I discussed above, not being ‘remorseful’ isn’t an offence known to law! Nor is Ms M’s failure to appear in Abuja, especially as she had secured a restraining order from a court of competent jurisdiction which was obviously binding on the Police. Just like the Respondent, Ms M was asked to bring two sureties. What for? It’s not as if Ms M committed any offence, that she can be charged for.
In criminal cases, a Surety is one that guarantees that the accused person will attend court on the trial dates. If the accused person fails to appear or absconds, the surety may face some consequences, such as forfeiting what may have been deposited for the bail, but not be remanded in custody for failure to produce the accused person. See Ndume v FRN (2022) LPELR-58272(CA) per Danladi Zama Senchi, JCA; Farotimi v FRN & Ors (2023) LPELR-60607(CA) per Ebiowei Tobi, JCA. Again, as in circumstances such as the Respondent’s or Ms M’s, the law doesn’t contemplate a surety standing guarantor for someone that cannot be charged to court because they haven’t committed any offence, as a surety guarantees to produce the accused person in court for trial.
Conclusion
It is obvious that our law enforcement agencies, are not just acting ultra vires their powers, but abusing them when it comes to arrests, bail and sureties. They act as if they are courts of competent jurisdiction, and insist on bail and sureties for those they arrest or ‘invite’ unlawfully; that they be produced to them for further harassment (by their guarantors), or until the desires of the ‘strong people’ who engaged their services are fulfilled. What an abuse of power! To be fair, however, this doesn’t happen in all cases, as there are also uncountable legitimate arrests made. As a matter of urgency, the Nigerian Bar Association should delve into this matter of law enforcement, particularly the Police and EFCC, arbitrarily or at the behest of ‘strong people’, being used as tools to oppress people, even arresting some on baseless petitions or for civil and contractual matters. See Ogbonna v Ogbonna (Supra).
The Third Schedule to the Constitution Part 1 Federal Executive Bodies M Police Service Commission (PSC) Paragraph 30(b), empowers the PSC to dismiss and exercise disciplinary control over every Police Officer, except the Inspector General of Police. Just as people petition the National Judicial Council (NJC) against erring judicial officers, so also should the public petition the PSC for matters relating to erring Police Officers. The EFCC Board headed by the Chairman, exercises oversight and disciplinary functions over the Commission’s personnel. The EFCC Board can also be petitioned. For the purposes of the Code of Conduct, both Police and EFCC Personnel are Public Officers, and if by their actions they have breached the Code of Conduct for Public Officers, they can also be reported to the Code of Conduct Bureau. This is not the end…..
