The Court and the Improper Use of Police Power: X-raying the Decision of the Supreme Court in Mitin v. C.O.P., Bayelsa State

Summary of facts:
On June 10, 2015, the ‘A’ Division of the Nigeria Police, Yenagoa, Bayelsa State, received a report that a lady who withdrew the sum of N200,000 from her Diamond Bank Account at Sani Abacha Expressway, Yenagoa, was dispossessed of the same. A black Toyota Camry was alleged to have been used in the commission of the offense. On June 15, 2015, the Division received another report alleging that a black Toyota Camry was being used to carry out nefarious criminal activities in different parts of Yenagoa.

Again, on June 19, 2015, the Division received a petition written by the legal adviser to Daewoo Nig. Ltd. alleging threats to the lives and persons of the 3rd and 4th respondents from unknown persons suspected to be hired assassins. It was alleged in the petition that a gang of suspected assassins was prowling the Oxbow Lake area in Yenagoa in a dark Toyota Camry car. A call was received the same day (19 June 215) by the said division from residents of Baybridge Road, Kpansia, about the suspicious movement of a black Toyota Camry car in the vicinity with a plea to investigate the occupants and their mission.

As a result, the second respondent dispatched his men to the area to verify the authenticity of the information. On arrival at Baybridge Road, Kpansia, Yenagoa, the team saw a black Toyota Camry with Registration No. YEN 634 AA being driven by the appellant. They arrested him and took him to his residence for a search. Nothing incriminating was found in his residence. They then took him to the police station for further investigation. Upon being satisfied that the appellant was not the suspect they were looking for, they released him on bail the same day, while his vehicle was released to him five days later.

Aggrieved, the appellant instituted an action against the respondents for the enforcement of his fundamental rights at the High Court of Bayelsa State. He filed a motion on notice dated July 21, 2015, pursuant to Order 11 Rules 1, 2, 3, and 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and Sections 34, 35, and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He alleged that he was arrested by the 1st and 2nd respondents at the instance of the 3rd and 4th respondents as he emerged from a barbing salon on Bay Bridge Road, handcuffed and humiliated; that he was not informed of the offense for which he was arrested and tortured in an attempt to get him to confess that he attempted to kidnap the 3rd respondent; and that his vehicle, which he used for his private business, was released to him after five days.

The appellant then sought, inter alia, a declaration that his arrest, torture, and detention by the command of the 1st and 2nd respondents at the instance of the 3rd and 4th respondents were illegal, unlawful, unconstitutional, and a breach of the applicants’ fundamental rights to personal liberty, freedom of movement, and dignity guaranteed by sections 35, 36, and 41, respectively, of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 6, 9, and 14 of the African Charter on Human and Peoples Rights; exemplary and aggravated damages; compensation; and public apology.

The trial court delivered a considered ruling and held that the police must be allowed to perform their legitimate duties. It, therefore, struck out the application for lacking merit.

Aggrieved, the appellant appealed to the Court of Appeal, which concurred with the findings of the trial court that the appellant’s action was lacking in merit and dismissed the appeal. Still aggrieved, the appellant appealed to the Supreme Court.

In resolving the appeal, the Supreme Court considered the provisions of Section 35(1)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 4 of the Police Act, which provide as follows:

Section 35(1)(c) of the 1999 Constitution (as amended) states:

“35(1) Every person shall be entitled to his personal liberty, and no person shall be deprived of such liberty except in the following cases and in accordance with a procedure permitted by law-
(c) 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 offense, or to such extent as may be reasonably necessary to prevent his committing a criminal offense.”

Section 4 of the Police Act states:

“4 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 outside Nigeria as may be required of them by or under the authority of this or any other Act.”

DECISION HELD: Unanimously dismissing the appeal, the following issues were raised and determined by the Supreme Court:

On Power of court to stop improper use of Police power
Where the power of the police, as spelled out in sections 4 and 24 of the Police Act, is improperly used, the court can stop the use of the power for that improper purpose, as that would no longer be covered by Section 35(1)(c) of the Constitution. In other words, there must be a level of reasonableness in the arrest of a citizen.

On Special status of enforcement of fundamental rights in the constitution and purport of-
The enforcement of fundamental rights has been given a special status in the Constitution higher than that of ordinary civil matters to ensure that there are no impediments to the protection of such guaranteed rights.

On Establishment of Police Force for Nigeria– By virtue of Section 214(1) of the 1999 Constitution (as amended), there shall be a Police Force for Nigeria, which shall be called the Nigeria Police Force, and, subject to the provisions of the section, no other Police Force shall be established for the Federation or any part thereof.

On general duties of the Police – By virtue of Section 4 of the Police Act, 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. Thus, the general powers invested in the Police to effect the arrest of suspected offenders and detain them are statutory.

On Duties of the Police – The duties of the Police are as follows:
Prevent crimes
Detect crime
Apprehend offenders
Preserve law and order
Protect life and property and
Enforce all laws and regulations with which they are directly charged.

In the instant case, the appellant was arrested upon a chronology of events indicating that there had been instances of allegations of criminal activities by some hoodlums using a “black Camry car”. The Police acted on the information disclosed to them, which led to the arrest of the appellant, who incidentally had a black Camry car.

On Meaning of ”police power” –
Police power is the exercise of the sovereign right of a government to promote order, safety, health, morals, and general welfare within constitutional limits and as an essential attribute of government.

On source of power of Police to investigate and arrest–
Sections 4 and 24 of the Police Act give the Police the power and duty to arrest offenders, preserve law and order, and protect lives and properties. Thus, whenever an incidence of crime has been reported, The Police have a statutory duty to investigate the allegation and apprehend the offender or anyone suspected to have committed the crime. Therefore, bring the Police or informant to court for breach a citizen who has been arrested by the Police cannot of a fundamental right. However, such arrests must be done legitimately and in accordance with laid-down rules as provided in the Constitution.

On Constitutional right to personal liberty and when person may be deprived of –
By virtue of Section 35(1)(c) of the 1999 Constitution (as amended), every person is entitled to his personal liberty, and no person shall be deprived of such liberty save 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 offense, or to such extent as may be reasonably necessary to prevent his committing a criminal offense. In this case, having regard to the series of reports received by the 1st and 2nd respondents and the peculiarity of the involvement of a black Toyota Camry car in suspected nefarious activities in and around Yenagoa, the 1st and 2nd respondents were doing no more than their duty to investigate the complaints. Therefore, the appellant’s arrest fell within the exception provided in Section 35(1)(c) of the Constitution.

On entitlement of citizen unlawfully arrested and detained-
By virtue of Section 35(6) of the 1999 Constitution (as amended), any person who is unlawfully arrested or detained shall be entitled to compensation and a public apology from the appropriate authority or person.

On meaning of “appropriate authority or person” in section 36(5) of the 1999 Constitution (as amended) –
The appropriate authority or person in sections 36(5) of the 1999 Constitution (as amended) means an authority or person specified by law.

On constitutional right to freedom of movement –
By virtue of Section 41(1) of the 1999 Constitution (as amended), every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria, refused entry thereto, or exit therefrom.

On when right to freedom of movement can be restricted –
By virtue of section 41(2)(a) of the 1999 Constitution (as amended), nothing in subsection (1) of the section shall invalidate any law that is reasonably justifiable in a democratic society imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offense in order to prevent him from leaving Nigeria, provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter. Section 41 of the Constitution relates to the deportation of citizen from Nigeria or the prevention of a citizen of Nigeria from leaving Nigeria or residing in any part.

On whether fundamental rights entrenched in the 1999 Constitution (as amended) are absolute –
The constitutional rights to personal liberty, private and family life, freedom of thought, freedom of expression and the press, peaceful assembly and association, and freedom of movement, respectively entrenched in sections 35, 37, 38, 39, 40 and 41 of the 1999 Constitution (as amended), are not absolute. By virtue of Section 45 of the Constitution, the rights guaranteed under Sections 37–41 can be derogated from or limited by an Act of the National Assembly.

On whether Police can exercise its powers without regard to citizen’s fundamental rights-
The Police are not given carte blanche to exercise their powers willy-nilly without due regard to fundamental rights.

On onus on applicant in fundamental rights enforcement application –
In a fundamental rights enforcement application, the onus is on the applicant to establish by credible evidence that his fundamental rights have been violated. The applicant bears the burden of proof of the violation of his rights. In the instant case, although the appellant alleged torture, he was unable to substantiate it with credible evidence. He was also unable to satisfy the court that his arrest was at the instigation of the 3rd and 4th respondents, having failed to establish any previous relationship or encounter with them and having regard to the contents of exhibit A, their petition to the police, which, as rightly held by the trial court and affirmed by the Court of Appeal, did not name any suspect and did not provide the license plate details of any particular car. The appellant ought to have been more specific about how his arrest was instigated by the 3rd and 4th respondents, as he alleged. He also should have provided credible evidence to support his allegation that he was tortured in Police custody and was denied access to his lawyer and relations.

Per KEKERE-EKUN, J.S.C., at pages 294–295, paras. G-B:
“While it is true that the Nigeria Police is often accused of exceeding their powers in the arrest and detention of citizens, the appellant’s case does not fall within that category. The appellant’s arrest based on the facts before the court, upon the reasonable suspicion that he might have committed an offense, was lawful.

A careful perusal of the affidavit evidence shows that he failed to discharge the onus of proving that his arrest was unlawful or that he was tortured and denied access to his lawyer and relatives. The learned trial judge was quite right when he observed that the Police must be allowed to perform their legitimate duties of detecting and investigating crime without the fear of being sued for every little inconvenience they may cause to members of the public in the legitimate exercise of such duties.

On right of citizen to make complaint to police and corresponding duty on police with respect thereto–
Generally, it is the duty of citizens to report cases of crime commission to the Police for their investigation, and what happens after such a report is entirely the responsibility of the Police. A citizen cannot be held culpable for doing his civic duty unless it is shown that it was done mala fide. A citizen has a right to make a complaint to the Police and by virtue of Section 4 of the Police Act, it is the duty of the Police to investigate such a complaint. In this case, the onus was on the appellant to prove that his arrest was at the instigation of his adversary. He and the several assertions in his affidavits, which he was bound to establish with credible evidence.

On when action will not lie against person who lodges complaint to Police –
Where a citizen reports a matter to the Police and leaves it to them to investigate and conclude, and such conclusion results in the arrest of a party, an action against such a complainant will not lie.

On need to allow Police to perform their legitimate duties without fear of being sued –
The Police must be allowed to perform their legitimate duties of detecting and investigating crime without the fear of being sued for every little inconvenience they may cause to members of the public in the legitimate exercise of such duties.

On when Police cannot be said to violate fundamental right of citizen-
In executing the powers donated by the Police Act vis-à-vis the provision of Section 35(1)(C) of the 1999 Constitution of the Federal Republic of Nigeria, the police cannot be said to be in violation of the fundamental rights of a citizen where such a right is necessarily curtailed to investigate criminal complaints upon reasonable belief that the citizen has committed a criminal offense or is likely to commit a criminal offense. In the instant case, the appellant was unable to contradict the specific averments relating to the series of reports received by the police within the span of a few days concerning the suspicious movement of passengers in a black Toyota Camry within and around Yenagoa, necessitating his arrest.

Per OKORO, J.S.C., at page 296, paras. A–C: In this case, the appellant was arrested following repeated complaints received by the police about criminal activities involving occupants of a certain black Toyota Camry car at several locations within Yenagoa. The Police swung into action and arrested the appellant on Baybridge Road, Yenagoa, in a black Toyota Camry, which fits the description of the car in several reports. Upon being satisfied that the appellant was not the suspect they were looking for, he was released on bail the same day. I therefore do not see how the action of the Police in the circumstances amounts to a breach of the appellant’s fundamental right.”

On purpose of Fundamental Rights (Enforcement Procedure) Rules –
The Fundamental Rights (Enforcement Procedure) Rules were enacted specifically to govern or regulate actions for the enforcement or protection of fundamental rights.

On attitude of Supreme Court to concurrent finding of fact and when will interfere therewith –
There must be clear proof of error, either of law or of fact, on the record that has occasioned a miscarriage of justice before the Supreme Court can upset or reverse a concurrent finding of fact. In the instant case, the concurrent findings of facts by the trial court and the Court of Appeal were factually and legally sound and did not merit any interference by the Supreme Court, without any clear evidence of errors in law or fact leading to or occasioning a miscarriage of justice.

On right of appeal to Supreme Court in fundamental rights cases –
By virtue of Section 233(2) of the 1999 Constitution (as amended), an appeal lies in decisions of the Court of Appeal to the Supreme Court as a right in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of the Constitution have been, are being, or are likely to be contravened in relation to any person. Thus, an appeal lies to the Supreme Court as a right when it involves the enforcement of fundamental rights, notwithstanding that the grounds of appeal may be of facts or of mixed law and facts.

This article was written by Moruff O. Balogun, Esq.

Credit: Loyal Nigeria Lawyer