Introduction
Abuse of power by the government and its agencies has been an issue calling for attention from the ages past. Various legal instruments have been put in place in the process of time both at international and local levels to unravel this unpleasant occurrence in human societies. Nonetheless, the rights of citizens are being continually infringed upon unsympathetically by men in authority, especially in this part of the world. We see these in various acts of threat, intimidation, harassment, torture, unlawful arrest and detention and abuse of weapons causing loss of life by these men in blue, black or khaki in this country.
It was the thought of Prof. A. V. Dicey in his principle of rule of law that there should be the absence of arbitrary arrest; equality of all persons before the law and that the Constitution remains the result of the ordinary law of the land. Rule of Law is a major feature of constitutional democracy upon which Nigeria is set to operate and thus the Constitution 1999 (As Amended) makes several provisions to ensure that the rights and freedom of the people are protected. To the Constitution, every person who is charged with a criminal offence is presumed to be innocent until he is proven guilty. Alas, the modes of operation of most of these men entrusted with power demonstrate their divergent mental perception that “every person ‘suspected’ of having committed a crime is guilty until the contrary is proved.”
By all odds, the Constitution guarantees the protection of the rights of every person and designates the rights as fundamental. In particular, every person is entitled to – the right to life; right to dignity of his human person; right to his personal liberty; right to fair hearing; right to his private and family life; right to freedom of thought, conscience and religion; right to freedom of expression and the press; right to peaceful assembly and association; right to freedom of movement; right to freedom from discrimination; and right to acquire and own immovable property anywhere in Nigeria. The Constitution also prescribes that if any person perceives that any of these rights have been or are about to be contravened, the person may apply to a court within that state to seek redress. The 2009 Fundamental Rights (Enforcement Procedure) Rules was particularly made to ensure easy access to court, simple procedures, comprehensive enforcement of rights, and quick justice delivery in fundamental right cases. Over and above, the Rules encourage the enforcement by the court of rights recognized under municipal, regional and international bills such as the African Charter on Human and People’s Rights, the Universal Declaration of Human Rights, etc. that are brought to the attention (or are within the judicial notice) of the court, in so far that they form part of Nigerian legal instruments.
The above notwithstanding, cases of abuse (excessive or unlawful use) of powers in Nigeria by men of our security agencies abound each day. Indeed, the modes of operation of such agencies as the Police Force, the Economic and Financial Crime Commission (EFCC), the State Security Service, the Nigerian Army, some tax authorities, etc. cause a lot of infractions of the citizens’ rights. Nigerian courts have in a plethora of cases frown at these non-standard operational modes. There is a thin line between when these acts become enforceable against the agencies. If you are a victim of any of these nefarious acts of these men or about to be one, I advise you to go through this general guide, it may be an aid to your next possible action.
Power of Arrest, Detention and Investigation by Security Agencies
In general, by the provisions of Sections 6, 7, and 13 of the Economic and Financial Crimes Commission Act Cap E1, LFN 2004, the Commission has the statutory power to investigate, arrest, interrogate, search and detain any person suspected of financial crime. Particularly, Section 7(1) (a) of the EFCC Act provides that the Commission has the power to cause investigations to be conducted as to whether any person, corporate body or organization has committed any offence under the Act or other law relating to economic and financial crimes.
By Section 2 (3) of the National Security Agencies Act, Cap N74, LFN 2004, the State Security Service is charged with responsibility for – (a) the prevention and detection within Nigeria of any crime against the internal security of Nigeria; (b) the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and (c) such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary. In carrying out these duties, arrest and detention of persons suspected of constituting or posing threats against the internal security of Nigeria becomes necessary.
Also, the law empowers the Police to arrest and investigate any person on reasonable suspicion of having committed a criminal offence. Sections 214 and 216 of the Constitution 1999 (supra) and Sections 4 and 24 of the Police Act are the statutory provisions on the establishment, purposes and duties of the Nigerian Police Force. Section 4 of the Police Act provides that the duties of the Police are to: (a) prevent crimes (b) detect crime (c) apprehend offenders (d) preserve law and order (e) protect life and property and (f) enforce all laws and regulations with which they are directly charged.[1] It is important to note that this power cannot be fettered by the court except for good reasons.[2]
Hitherto, there is no standardized and clear statutory guide on the operation of police officers in Nigeria for the proper regulation of the use of power. The 2020 Police Act amended and repealed the Police Act which has been in force since 1943. The new Act, among other things, intends to establish a service-oriented and modern Police that would meet globally acceptable policing standards in a democratic setting. It is also targeted at establishing guiding principles that could ensure the protection of human rights and fundamental freedom. It fashions out methods for the use of weapons by police officers and how the police could be held accountable for their actions, especially in the areas of arrest and detention of persons and searches. On this, it proposes the establishment of an independent complaint authority to receive and investigate and effectively deal with complaints against police officers’ misconduct from the public. We hope the objectives of this Act as stated in its sections 1 and 2 will represent the age-long perspectives of the men of the Nigerian Police Force.
Limitations to the Rights
In most cases of allegations of infringements by the men of these agencies, the rights commonly alleged as being contravened are – the right to dignity of human persons; right to personal liberty; right to fair hearing; right to freedom of movement; and right to acquire and own immovable property. However, none of these rights exist without some limitations. For example, a person’s right to personal liberty may be taken away, inter alia, for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent him from committing a criminal offence.[3] Thus a person may be arrested and detained for the purpose of criminal investigation and/or charge. It will amount to an abuse of the process of law to move the court in the guess of enforcement of rights to inhibit any law enforcement agency from performing this statutory duty.[4]
Sometimes, the agency may issue an invitation to a person with the aim of investigation (ascertaining the veracity or otherwise of allegations levelled against him). Such invitation cannot by any stretch of imagination constitute a breach or threat to the fundamental rights of such a person. Fundamental rights actions are based on facts that are concrete and cogently connected to overt acts of infraction of right complained of and not on flimsy apprehension.
The requirement of the law is that where there is deprivation of liberty, to wit, where an invitation is honoured or arrest and/or detention is made, such a person arrested or detained is to be brought before a Court within a reasonable time, within the meaning of Section 35 (5) of the Constitution, that is, one day where there is a Court of competent jurisdiction within a forty kilometre (40km) radius of the place of detention. Otherwise, such a person is to be released on bail within a reasonable time. It must be noted however that this prescription on bail does not apply to any person whose arrest or detention is on suspicion of having committed a capital offence or person who is a member of the Nigerian Armed Force.
Furthermore, while every person’s right to property is guaranteed, no moveable property or interest in immovable property shall be taken possession of compulsorily from any person except in accordance with law which provides for payment of compensation. Section 44 (2) (k) of the Constitution further permits any law relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry. It will therefore not amount to infringement of the right to property where on lawful performance of their duties, men of the security agencies on following due process of law, take away from any person some items that are directly connected to a matter for their investigation or that are the subject matter of a crime.[5] Hence, in the case of Dame Mrs. Patience Ibifaka Jonathan v. Federal Republic of Nigeria (2018) LPELR-3505(CA), the Court of Appeal held that the interim forfeiture order made against the properties of the Appellant by the Federal High Court pursuant to Section 17 of the Advanced Fee Fraud and Other Related Act was not in contravention of her rights to property and fair hearing.
On the 5th of July 2018, President Muhammadu Buhari, as part of his corruption-fighting agenda, issued the Preservation of Suspicious Assets Connected with Corruption and Other Relevant Offences Order, No. 6, 2018 with the aim of restricting dealings with suspicious assets which are subject to corruption-related investigation or enquiries. The aim is to preserve the assets from being dissipated pending the final determination of the pending cases on them in courts. Although the Order gives the Attorney General of the Federation power to coordinate the administration of the Order in order to employ legal means to protect the assets, the constitutionality of the Order still had been a subject of debate. Justice Ojukwu Ijeoma of the Federal High Court, Abuja in a judgment delivered on 11 October 2018 upheld the constitutionality of the Order and held that the Order does not constitute an infringement to citizens’ right to fair hearing and right to property in view of the intendment of the Order but that the A.G. should endeavour to obtain an order of court before any seizure of asset pursuant to the Order.[6] Be that as it may, our concern here is the provision of section 3 of the Order which is to the effect that any person who alleges that his fundamental rights have been, are being or likely to be contravened by the execution of the Order may apply to the court for redress.
When the Acts Become Infringements
There is an abuse of power where the officers of these agencies carry out their lawful duties in unlawful manners or where they are engaged to carry out duties that are not authorized by law. As pointed out above, arrest and detention will only be lawful when it is upon ‘reasonable suspicion’ of commission of criminal offence. It is unlawful for the Police authorities to arrest any person without sufficient evidence upon which to charge the person.[7] The Police do not have unbridled powers to deprive citizens of their liberty while the case against them is still being investigated.[8] The provision of section 35 (5) of the Constitution must thus be complied with by proffering a charge against the suspect and bringing him before the court or releasing him on bail. Where any of these is not done, the agency’s acts of arrest and detention become unlawful and the victim will have a right of action for enforcement of his fundamental rights.
Security agencies are sometimes engaged in matters that are clearly not connected to their statutory duties. When this happens, anything done in contravention of the rights of any person thereby becomes actionable against the agency. For example, the power of the Police or EFCC does not extend to the investigation and/or resolution of disputes arising or resulting from simple contracts or civil transactions. There are many instances where these agencies are craftily engaged by individuals to recover debts. Courts have warned that these agencies have an inherent duty to prudently scrutinize all complaints, no matter how carefully crafted by the complainant, and be bold enough to counsel complainants to seek appropriate/lawful means to resolve their disputes.[9]
As earlier noted, where an invitation has been served on you for investigation by the agency but you refused to honour the invitation, you do not have any protectable or enforceable right yet. Fundamental Right actions are based on facts that are connected with the claim thereon. No right can be said to have been infringed upon or perceived on a mere invitation. It is premature to rush to court when you refuse to answer or obey the invitation served on you. If in the course of the investigation, you feel that your rights as adumbrated above have been contravened or likely to be, then you can freely knock on the doors of the Court for intervention.[10]
If any law permits the taking (or deprivation of the use) of property without compliance with section 44 of the Constitution as above mentioned or in contravention of the right of the owner to a fair hearing, anything done by any agency pursuant to such law will be unlawful and fundamental rights action is enforceable against the agency.[11]
Tortious Action Against the Informant/Complainant
When a fundamental rights action is to be enforced against an agency in some cases, the person who informed the agency or laid the complaint of the offence is joined as a party to the suit to claim jointly and severally against the agency and the complainant. To succeed in this, it must be evinced that the complaint is totally false, malicious and without foundation. On the other hand, the victim of unlawful arrest and detention may take an action in tort against such informant or complainant for false imprisonment or malicious prosecution. He may not even have any case of infringement of his right against the agency but may take action against the complainant solely if such a complaint was made in bad faith and out of malice.
Generally, the Supreme Court has held that citizens have the duty to report cases of commission of a crime to the Police for their investigation and what happens after such a report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide (i.e. in bad faith).[12]
However, whenever there is an unlawful arrest, any person who instigates the arrest or who is responsible for putting the law in motion leading to such an arrest would as well be liable once it is shown that it was done in malice without probable and reasonable cause. A person said to have put the law in motion is one who took an active part in the initiation, continuation or procurement of the arrest and detention of another. However, where the police have used their own initiative on the strength of their investigation to effect arrest and/or detention of the person within the confines of the law, no liability would lie against the person who made the complaint to the Police.[13]
In Prince Brian Emonena & Anor v. Inspector General of Police & Ors (supra), the Apex Court held that the requirement of malice has always been the most difficult to construe by the Courts, because of its oftentimes subtle and latent nature not easy to discern on the face of the Defendant. The word ‘Malice’ is generally an emotive term, but in relation to the tort of unlawful arrest and detention, it means that the complaint leading to the arrest and or detention of the Claimant was instituted or made primarily by the Defendant because of a purpose other than that of bringing an offender to the justice he justly deserves. It is thus the intentional doing of a wrongful act without legal justification and may in most cases be inferred from the absence of probable and reasonable cause. The court ended this with a note of caution that this does not necessarily mean and cannot necessarily be equated with hatred or ill will.
Available Reliefs
Apart from the general orders, writs and directions that the court is empowered to issue for the redress of rights of an applicant as the circumstances of each case may demand, Section 35(6) of the Constitution specifically provides that any person unlawfully arrested or detained shall be entitled to compensation and public apology from appropriate authority or person.
In a claim for damages in fundamental rights actions, there is no need for specific pleading of pecuniary loss or proof of injury as generally required in civil actions. Even where there has been no physical injury, substantial damages may be awarded for the injury to the person or dignity of the applicant or discomfort or inconvenience caused to him. Where liberty has been interfered with, damages are awarded though he might not have suffered any pecuniary damage. It is also not necessary for the applicant to give evidence of damages to establish his cause of action or to even claim any specific amount of damages.[14]
Sometimes, reliefs are sought for an order of the court restraining the respondent agency from further disturbing, harassing or interfering with the personal liberty of the applicant through intimidation, threats of invitation for interrogation, arrest, detention, etc. These nature of reliefs may be granted if and only if the action for enforcement of rights succeeds, otherwise court cannot be moved to make an order of perpetual injunction or blanket injunction against any future arrest or detention where there is no reasonable cause of action. This will amount to the court foisting on the investigatory power of the agency. In the case of Attorney-General of Anambra State vs. Chief Chris Uba (2005) 33 WRN 191, it was held that the court is not a forum for any person to run to seeking to be shielded against criminal investigation and prosecution. This will amount to an interference with the powers given by the Constitution to law officers in the control of criminal investigation. No person is to expect a judicial fiat preventing a law officer in the exercise of his constitutional powers.
Conclusion
From the foregoing, claims of infringement of fundamental rights will become enforceable against security or law enforcement agencies who act ultra vires of their power. The action is also enforceable against the complainant and in tort for false imprisonment or malicious prosecution where he maliciously set the law in motion.
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ENDNOTE:
[1] See Chukwuma v. Commissioner of Police (2005) 8 NWLR (Pt. 927) pg. 278
[2] Luna vs. Commissioner of Police, Rivers State Command (2010) LPELR – 8642 (CA)
[3] Section 35 (1) (c) Constitution (supra)
[4] See River State Microfinance Agency vs Mrs Dialaba S.D. Isokariari & Anor (2018) LPELR-44863(CA).
[5] Chrome Insurance Brokers Ltd & Ors v. Economic and Financial Crimes Commission & Ors (2018) LPELR-44818(CA)
[6] Ikenga Ugochinyere & Anor v. President of the Federal Republic of Nigeria & Anor, Suit No. FHC/ABJ/CS/740/2018
[7] Fawehinmi v. Inspector General of Police (2002) 7 NWLR (Pt. 767) pg. 606
[8] Johnson vs. Lufadeju (2002) I NWLR (Pt.768) page 203.
[9] Diamond Bank Plc v. H.R.H. Eze (Dr) Peter Opara & Ors (2018) LPELR-43907(SC)
[10] Dr. Aloysius Ozah v. Economic and Financial Crimes Commission & Ors (2017) LPELR-43386(CA)
[11] Access Bank Plc v. Edo State Board of Internal Revenue (2018) LPELR-44156(CA)
[12] Fajemirokun V. Commercial Bank Nig. Ltd LER [2009] SC.336/2002
[13] Prince Brian Emonena & Anor v. Inspector General of Police & Ors (2016) LPELR-41489(CA)
[14] Prof. Mazi Chris Okoro v. Commissioner of Police, Enugu State & Anor (2016) LPELR-41025(CA)
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