What remedies do I have against unlawful arrest or detention?

A person unlawfully arrested or detained contrary to constitutional requirement is entitled to compensation (money) or public apology from the appropriate authority or person specified by the law.

Action can also be brought against an individual for unlawful arrest or detention under common law. At this juncture, you need your lawyer to handle your matter on your behalf.

 

 

My right to bail

Bail is also a right an accused person is entitled to. Types of Bail are as provided below:

  1. a) Bail by the Police
  2. b) Bail by the Court pending trial
  3. c) Bail by the Court pending Appeal

Bail by the Police:

The right of a suspect to bail is a constitutional right which provides that a suspect is entitled to be released with or without conditions, even if further proceedings may be brought against him, within a period of a day or two days of his arrest and detention, as the case may be. This right  empowers the police to grant bail to a suspect on self recognition or on his entering into a bond with or without a surety for a valuable sum, to report at the police station at a given date and time.

Where by virtue of the nature and circumstances of a particular case it is not feasible for the police to release the suspect on bail, he must be charged to court not later than a period of 24 to 48 hours, from the date of detention[1]. The court held that where the Police arrests and detains a person over an allegation or reasonable suspicion of committing an offence, and investigation of the case are on-going, it is their duty to offer bail to the suspect and/or charge him to court, within 24 hours,[2]

NOTE: As soon as the matter is charged to court and the suspect appears in court, the bail by the Police lapses and a fresh application has to be made before the court.

 

Bail by the Court pending trial:

Power of court to grant bail

This depends on the nature of the offence and the court before which the accused is charged and here you must involve your lawyer.

 

 

MAGISTRATE’S COURT

The Magistrate cannot grant bail in capital offences. [3]

While the Magistrate may be slow to grant bail in non-capital offences but which carry more than 3 years imprisonment, bail is almost always granted in simple offences except there are compelling reasons to the contrary. [4]

 

HIGH COURTS

Being a court of unlimited criminal jurisdiction, the High Court has power to grant bail in all criminal cases tried by it. Bail in capital cases is however not automatic.[5]

For the applicant to be entitled to bail in a capital offence, he must show special circumstances why bail must be granted. [6]

To qualify as special circumstance, the fact must be so compelling that to refuse bail would amount to manifest injustice such as serious Ill-health, Inordinate delay in the prosecution of the applicant resulting in exceptionally long period in detention without trial may also constitute such special circumstances.

 

Factors guiding grant of bail include:

  1. a) that by reason of the grant, proper investigation of the offence would not be prejudiced.
  2. b) that no serious risk of the accused escaping from justice would be occasioned.
  3. c) that no grounds exists for believing that the accused if released would commit an offence.

 

However, the Supreme Court recognized the following[7] as factors that may guide the courts in considering whether to grant bail in any particular case.

  1. a) the nature of the offence and the punishment prescribed.
  2. b) The nature, character and quality of evidence against the accused
  3. c) The possibility of the accused interfering with further investigation and/or prosecution of the case if granted bail.
  4. d) The prevalence of the offence
  5. e) Detention for the protection of the accused person.
  6. f) The possibility of the accused committing the same or similar offence while on bail
  7. g) The criminal record of the accused. If the accused can show that he is a man of good character who has never been convicted of any offence, he is more likely to secure the sympathy of the court. You can see that it is good to be a person of good character because frequent involvement in criminal activities or many criminal cases are influential factors.
  8. h) Ill-health.

If the accused is relying on ill health, don not invoke this to deceive the court because he must show the following:

  1. the ill-health is such as would affect other inmates of the detention place.
  2. there is a positive, cogent and convincing medical report issued by an expert in that field of medicine to which the accused suffering the ill-health is
  3. the authorities have no access to such medical facilities as are required in treating the accused’s ailment

 

[1] Section 3(2) of ACJL; section 17 of CPA

[2] Eda v. Commissioner of Police (1982) 6 NCLR, 223

[3] See Sections 118 (1) & 341 (1) of the CPA and CPC

[4] See generally Sections.118 CPA;  340 & 341 CPC.

[5] See Section. 341 (1) of the 1999 Constitution

[6] See Section 341 (3) CPC. and Abacha Vs The State (2002) FWLR (pt.98) 863 @ 881.

[7] Bamaiyi Vs. The State (2001) 4 SCNJ 103,

What you need to know when directed by the police to write a statement

If the police ask you to write a statement, which they normally do when they stop you on the road and take you to the station or when they invite you to the station, you should know how to write a good statement that will not implicate you in the absence of your lawyer.

First, whether you write a statement as a witness or as a suspect, you must understand that your statement is very likely going to be used against you either in court. We have very good officers in the police force but don’t also forget there are also bad eggs as some may want to use statement for the purpose of blackmail. Therefore, take your statement writing as a serious matter.

Remember that you have right to refuse to write a statement until your lawyer is present. But this normally leads to argument from some police officer, and some may be threaten or using it as a pretext for them not releasing you immediately.

There are no hard and fast rules as to the content of a statement. It is supposed to be what you know in relation to an incident or the reason for you being brought to the station. Since the statement is not just a general view on anything you like, it is important that you know the reason for which you have been brought to the station.

For those who have been suspected of committing an offense, make sure that before you start writing a statement, you ask the officer the offense for which you have been brought to the station. If he tells you that there is no offense, that they just want you to tell them all you know, you can politely say: No, Sir. The police force is meant to enforce the criminal law. Therefore, the police would not have any justification to bring you to the station except if they suspect that an offense has been committed somewhere by somebody – either you or someone else. And you need to know the offense and the person suspected before you could write your statement.

Also, if you were arrested or invited as a result of a petition written against you, you must demand to read carefully that petition before you start giving your statement.

When you start your statement, make sure you explain in your statement the reason for which you have been asked to make your statement. For instance, you can say something like: “I was stopped while driving my vehicle with registration number xxxxx on ________ street in _______ city. After showing my papers to officer xxxxxxx, I was taken to the police station and informed that my car was suspected of being a stolen car”

Then you make your statement. But you should be able to state the summary of the circumstances that led to you having to make a statement in the station.

Get the idea that you should explain why you are making a statement and the offenses you were told you were suspected of. You should state that in your statement before you begin to write other things

POST SCRIPT: The reason you have to state in your statement the reason for making a statement is obvious. Your statement when read by a third party can only make sense in the context of the matter that prompted the statement. So, if you didn’t state the matter to which your statement relates, the matter may be changed down the line. Initially, you thought you were arrested because of stolen vehicle, but later charged it to kidnapping as a caller once shared on our then weekly live radio programme called  ‘Know Your Constitution” now #KnowYourRightsNigeria on UNILAG 103.1FM in Lagos, Nigeria. If a judge is reading your statement in a kidnapping case, he will think you were evading the issues. He will think you were dodging the matter that you don’t want to answer the question. And he may form a negative opinion of you based on your presumably inconclusive and evasive statement. So be careful and be wise.[1]

[1] Opinion by Emeka Ugwuonye of Eculaw Group posted on The Due Process Advocates (DPA) on 8th September, 2016 at 14:4. Edited by the Know Your Rights Nigeria Team

Rights of an accused person at the Police station/My rights after arrest

Anyone whether innocent or criminal can be arrested or invited to the police station of one matter or the other.  When a person is taken to a police station for the commission of an alleged offence or on reasonable suspicion of being about to commit a crime, he is entitled to the following rights under the constitution and other subsidiary legislation, presently in force:

  1. Right to bail – the right of a suspect to bail is a constitutional right fully guaranteed,[1] which provides that a suspect is entitled to be released with or without conditions, even if further proceedings may be brought against him, within a period of a day or two days of his arrest and detention, as the case may be.
  2. Right To Private Legal Advice – An accused person or a suspect, who is under arrest or detention, has a right to counsel guaranteed[2] while under arrest or being held at the Police station. The section provides: The import of this provision is that an accused person is at liberty to insist on talking to a lawyer before making a statement or being subjected to interrogation at the Police Station. It is therefore illegal for the Police to compel an accused or suspect to talk or make any statement, against his wish to consult a lawyer first, before doing so.
  • Such a person shall have the right to remain silent or avoid answering a question until after consultation with a legal practitioner or any other person of his own choice.
  1. He has the right not to be arrested by use of excessive force – The police have no right to beat any person and using reasonable force. To enforce compliance does not include pummeling (striking repeatedly with the fists) a person into a pulp especially when the suspect is not resisting arrest or after arrest.
  2. He has the right to be notified of the cause of arrest – Unwarranted and unnecessary detentions run contrary to the ideals of the Fundamental Rights provisions in Chapter IV of the 1999 Constitution.
  3. He has the right to be taken to a police station – A suspect should be taken to a police station and the police have no right to deny a suspect access to his/her lawyer at all times.
  • He has the right to be brought before a court of law within a reasonable time – Every detention beyond 24 hours must be authorized by a court of law.
  • A suspect can only be tried for an offence known to law – The offence must be defined by legislation prohibiting it and punishment thereof specified therein; and the offence must be so constituted at the time of the commission of the alleged offence.

 

[1] Section 35(4) and (5) of the 1999 Constitution

[2] Section 35(2) of the 1999 Constitution,

Can a private person or group of people arrest, kill or discipline a suspect (Jungle Justice)?

A private person can also arrest a suspect where the police are not around. As a law abiding citizen, DO NOT beat the suspect or kill him/her because the person you arrested is still a suspect who might be innocent. You must handover the suspect to the police without unnecessary delay. You cannot detain a suspect. Failure to hand him/her over to the police may make your arrest unlawful. Like we do assure people, if you doubt whether justice will be served at the police station, you can notify the police command in your state or notify us. We can inform the leadership of the State Police Command or the National headquarters or ask for proper follow up and monitoring. Do not kill anyone as people often raise force alarms against their perceived enemies or rivals with a target of getting them lynched. Jungle justice is illegal and can end those indulging in it in life jail or execution depending on the circumstances of the matter.

Can I be locked anywhere after arrest?

Anyone arrested with or without a warrant shall be taken with all reasonable dispatch to a police station or other place for receiving such persons. Where the accused is arrested by a private person, he must be handed over to the police as soon as possible or without necessary delay. Do not hold a suspect at home or anywhere else aside taking him or her to the police station.

Must there be use of force/handcuffed and warrant of arrest before arrest can be effected?

The procedure for effecting arrest is that the person making the arrest must actually touch or confine the body of the person to be arrested, for words alone are not sufficient unless there is submission to the custody by words or action. Where there is voluntary submission, the police officer may not use force. The offender should be informed of the reason for his arrest except where the reason is obvious or where it is suspected that the offender may escape or resist arrest[1]. However, if the warrant of arrest was not immediately available at the time of arrest, the officer or any other person executing a warrant of arrest may still arrest the offender. But the existence of the warrant of arrest must be disclosed to the arrested person and thereafter the warrant should be shown to the person as soon as practicable[2]. The person making the arrest is allowed to use reasonable force to arrest the offender but the person arrested shall not be handcuffed unless there is apprehension of violence.

Once a warrant of arrest has been executed (that is used to make an arrest), the warrant of arrest expires and can therefore no longer be used to make another arrest not even to arrest the person earlier arrested with the same warrant[3].

It should be noted that a person can also be arrested without a warrant by a police officer, judicial officer, a Justice of the Peace or a private person, as the case may be, where he is suspected of having committed an offence or found committing an offence. Notwithstanding the fact that, the offence for which the person is arrested is one for which the law that created the offence requires that an offender can only be arrested with a warrant of arrest[4].

[1] section 28(3) of Criminal Procedure Act and section 60 of Criminal Procedure Code

[2] section 29 of CPA and section 61 of CPC

[3] R. v. Akinyanju (1959) WRNLR at 253

[4] section 10(2) of CPA and section 26(a) of  CPC

Who can carry out Arrest?

The powers to arrest are vested in the police. This will enable them to carry out their task of detecting and catching criminals and suspects for trial by court. Our advocacy in this area is that some of our dear police friends, should not abuse this power. People can legally challenge abuse of power of arrest.

A private person can also arrest a suspect where the police are not around. As a law abiding citizen, DO NOT beat the suspect or kill him/her because the person you just arrested is still a suspect who might be innocent. Do not detain the person; take him to the nearest police station. Police will handle the rest. But if you doubt whether justice will be served, you can notify us. We can inform the leadership of the State Police Command or the National headquarters for proper follow up and monitoring. Do not kill anyone as people often raise force alarms against their perceived enemies or rivals with sole aim of getting them lynched. Taking the life of another is a murder which may lead to being sentenced to death also.

My right to Personal Liberty (Introduction)

  • Introduction

Right to personal liberty is one of the most important of all rights with a wider scope that covers other rights such as right to movement, rights to assemble and associate. This is a right where everyone whether you are a Nigerian or Non-Nigerian cannot be subjected to any arrest, imprisonment and any other physical cohesion contrary to the law under any guise.

The court simply put it that “Personal liberty means privileges, immunities, or rights enjoyed by prescription or by grant. It denotes not merely freedom from bodily restraint, but rights to contact, to have an occupation, to acquire knowledge, to marry, have a home, children, to worship, enjoy and have privileges recognized at law for happiness of free men.”[1]

Section 35(1) of the 1999 Constitution provides:

 

Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases in the accordance with a procedure permitted by law.

 

Before this right can be deprived, certain situations must be complied with as specified in the constitution and authorized by the law such as power to arrest a person based on the order of a court or when it is reasonably necessary to prevent a person from committing a crime. A person can also be deprived of this right upon reasonable suspicion of committing an offence. Some certain situations are discussed under sub-headings under the right to personal liberty.

[1] Adewole v. Jakande (Alhaji) (Governor Lagos State) (181) 1 NCLR 262 at 278 HC Lagos