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Saturday, July 29, 2017

Know Your Rights: What To Know About Arrest


  1. Meaning of arrest
In technical terms, “arrest”   simply means a seizure or forcible restraint of a thing, animate or inanimate. It is in this category meanings , you find such phrases as “cardiac arrest”, “arrested development” , “ship/vessel arrest” , “house arrest”, “arrest of judgment”,  etc, etc.
In legal parlance and for the purpose of this discuss , an “arrest” is “the taking or keeping of a person (or thing) in custody by legal authority, especially in response to a criminal charge; specifically, the apprehension of someone for the purpose of securing the administration of the law, especially of bringing that person before a Court” see the case of  AYAKNDUE & ORS. v. EKPRIEREN & ORS. (2012) LPELR-20071(CA)
Please note that it is the person that is suspected to have committed an offence that can be arrested, not a person who has not committed any offence. Arrest in lieu is now  expressly prohibited .See Section 7 of the Administration of Criminal Justice Act, 2015.
  1. Powers to arrest
          a. By the Police and other Law Enforcement Agencies
The police and many other law enforcement agencies are duly empowered to arrest a person (on reasonable suspicions of having committed an offence or about to commit an offence) under the various laws  establishing and regulating such law enforcement agencies. Section 4 of the Police Act, LFN,2004  generally states thus:
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, and shall perform such military duties within or without Nigeria as may be required by them by, or under the authority of, this or any other Act.
For  the other law enforcement agencies, for the purpose of carrying out the  their duties, there is an express power authorizing such  law enforcement agencies to possess the same powers,authority and privileges as are given by law to members of the Nigeria Police Force-See Section 16 of the Customs and Excise Management Act 2013,Section 4 of the National Drug Law Enforcement Agency Act 2004,Section 1 of the Nigeria Security and Civil Defence Corps(Amendment) Act 2007 and Section 19 of the Federal Road Safety Commission(Establishment ) Act 2007.
          b. Arrest By A Judge , Magistrate or Justice of the Peace -Section 16 of the CPA
A Judge , Magistrate or Justice of the Peace  have the power to arrest  a suspect committing an offence in their presence. A magistrate even has the power to deal with such arrested suspect  in the same manner as if the suspect had been brought before him by or under the direction of any other person-See Sections 24,25 and 26 of the Administration of Criminal Justice Act, 2015
          c. Arrest by Private Persons:
A private person may arrest a suspect in Nigeria who in his  presence commits an offence, or whom he reasonably suspects of having committed an offence  for which the police is entitled to arrest without warrant . See Sections 20 of the Administration of Criminal Justice Act 2015
          d. Arrest By An officer of A Legislative House
An officer of a Legislative House may, without an order from a magistrate and without a warrant, arrest-
  1. any person who commits any offence contrary to section 15 or 16 of this Act in his presence;
  2. any person within the Chamber or precincts of the Legislative House whom he reasonably suspects of having committed an offence contrary to either of the said sections
See Section 17 of  the Legislative Houses(Power and Privileges) Act,2004
          e. Arrest By Sheriff of Court
The sheriff may command any person to arrest any person who has committed or is suspected of having committed a felony, and any person failing to obey such command shall on conviction be liable to a fine of N200 or to imprisonment for one year or to both such fine and such imprisonment.
See Section 7 of the Sheriff and Civil Process Act,2004
          f. Arrest by a private security officer
It is opined  that a private security officer can effect an arrest  as a private person as specified by Section 20 of  the  Administration of Criminal Justice Act ,2015 . There are no other exclusive provision conferring power to arrest on a private security outfit.
          g. Arrest by Owner of property
 A suspect  found committing an offence involving injury to property may be arrested without a warrant by the owner of the property or his servants or persons authorised by him. A private person can arrest a suspect who is damaging a public property.
See Sections  21 and 22  of  the Administration of Criminal Justice Act ,2015.
  1. How to Effect an arrest
In making an arrest, the police officer or other person making the arrest shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. See Section 4 of the Administration of Criminal Justice Act, 2015. Please note that  this right to touch the body of the person to be arrested does not confer on the arresting authority the right to use inordinate force-See  the case of Ibikunle v. State (2007) Vol. 3 M.J.S.C. 184 at 196 197 Paras. G – D (SC)
  1. Arrest with warrant
It is opined that the essence of the requirement of warrant to arrest is to formally seek the prior  authority of the judge or magistrate before effecting an arrest .The warrant of arrest notifies the person sought to be arrested, of the offence for which he is being arrested . In a way, a warrant of arrest ensures  a constitutional compliance  of the requirement of  informing a person of the  reason he is being arrested. Otherwise, it is not a sine quo non, except the operative law  so requires. A law creating an offence may specify that offenders can only be arrested on warrant.
Generally, where there is power to arrest a person without warrant, a warrant for his arrest may be issued. The complaint for its issuance must be on oath. An issued warrant must comply with the specified form and shall be signed by a judge or magistrate by whom it is issued. It is  directed to a police officer or to all police officers. A warrant can be executed by any other person, when a policeman is not immediately available. A warrant is not defective simply because it was issued on a Sunday or public holiday. A warrant can be executed on a Sunday or public holiday. A warrant  can be executed even when the executing officer is not in possession of the said warrant. A warrant remains in force until executed or cancelled by the issuing judge or magistrate-See Sections 35-49 of the Administration of Criminal Justice Act, 2015.
  1. Arrest without warrant
Section 24 of the Police Act and Section 18 of the Administration of Justice Act, 2015   unanimously  gives power to the Police to arrest without warrant in specified instances. Before examining the instances , kindly note the proviso to the powers of the Police to arrest without warrant which is to the effect that  the Section shall not apply to any offence with respect to which it is provided that any offender may not be arrested without warrant. An arrest without warrant can be  made by a police officer in the following cases:
  1. any person whom he finds committing any felony, misdemeanour or simple offence, or whom he reasonably suspects of having committed or of being about to commit any felony, misdemeanour or breach of the peace;
  2. any person whom any other person charges with having committed a felony or misdemeanor;
  3. any person whom any other person- (i) suspects of having committed a felony or misdemeanour ; or (ii) charges with having committed a simple offence, if such other person is willing to accompany the police officer to the police station and to enter into a recognizance to prosecute such charge.
Under Section 52 of the Administration of Criminal Justice Act,2015,the Police can also arrest  without a warrant to prevent the commission of offences.
  1. Procedure to follow after arrest
 Except a person is caught “red handed” i.e (in the actual commission of the offence),he is to be informed in the language he understands, of the  reason for his arrest. The police officer is to then inform the suspect of his rights to remain silent or avoid answering any question until after consultation with a lawyer of his own choice. The arresting authority is also duty bound to notify a next of kin or relative of the arrested suspect. Importantly, the arrested person is to be accorded humane treatment, not subjected to any form of torture, cruel, inhuman or degrading treatment . The police officer may search the suspect , using reasonable force as may be necessary, decently and the search is  to be conducted by a person of same sex as the suspect. The police officer is to record information about the arrested suspect and take an inventory of all items or property recovered from the suspect .An arrested suspect is to be taken immediately to a police station, where a recording of his arrest is to be made. Where a private person arrests a suspect, he shall immediately hand over the suspect to the police or take him to the nearest police station. See Sections 8-29 of the Administration of Criminal Justice Act,2015, 
  1. Remedies for wrongful arrest
 The law is, if a person is unlawfully arrested or detained there is a provision for compensation and public apology by the appropriate authority or person. See Section 35(6) of the 1999 Constitution.

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