This article by learned Senior Advocate of Nigeria, Ebun-Olu Adegboruwa, discusses the ugly practice of “arrest by proxy” or arrest in lieu, which persists as a disturbing feature of law enforcement in Nigeria, despite the enactment of Section 7 of the Administration of Criminal Justice Act 2015 prohibiting such arrest, vis-à-vis the recent Supreme Court decision in Smart v Idiokita which offers a powerful judicial reaffirmation of this fundamental principle, and a timely opportunity to interrogate the continuing malaise
Introduction
From time immemorial, criminal liability has always been personal. You cannot transfer the responsibility of a crime from one person to another, no matter their relationship, and in the absence of any joint agreement to commit a crime, one person cannot be held liable for the criminal action of another. The law enforcement agencies in Nigeria are well aware of this basic principle of our criminal law jurisprudence, but they still proceed to arrest citizen A for the alleged offence of citizen B. In some cases, a father is arrested for the alleged criminal conduct of his son or vice-versa, or one business partner is held liable for the conduct of his co-partner.
Although the courts have pronounced upon this principle of law in many cases, it became imperative to insert a specific clause in the Administration of Criminal Justice Act in 2015 (ACJA), in order to arrest the ugly trend. This notwithstanding, Police officers in particular, have refused to respect the rights of citizens in this regard. The decision whether or not a person commits an offence is from the inner mind of the offender and since only God knows the heart of a person, no human being is to suffer for the conduct of another.
One way to end this malady, is to hold the particular Police officer who violates this principle personally liable for his misconduct. If for instance, the case ends up in court, any award of damages should be paid by the offending officer, in addition to possible demotion in rank or outright dismissal.
The Facts of the Case
The facts of this case are as reported in Smart v Idiokita (2026) 20 NWLR (Pt.2044) 63. The 1st Respondent, by an application for enforcement of fundamental rights sued the 2nd to 6th Respondent and the Appellant as the 1st to 6th Respondent respectively, seeking a declaration that his arrest and detention by the 6th Respondent from 10th to 13th August, 2021 on the Appellant’s instigation was unconstitutional, illegal, unlawful and an infringement on his fundamental rights as guaranteed under Sections 34, 35 and 41 of the 1999 Constitution (as amended); and a declaration that the threat of his father’s arrest by the 3rd to 5th Respondent on the Appellant’s instigation was unconstitutional, illegal, unlawful and posed a likelihood of infringement on his fundamental rights as guaranteed under Sections 34, 35 and 41 of the Constitution. The 1st Respondent also sought inter alia, the sum of N20,000,000.00 as damages against the 2nd to 5th Respondent for the infringement of his fundamental rights; and the sum of N10,000,000.00 as damages against the Appellant for instigating his arrest and detention for four days without trial, and continuous threats to life, harassments and trauma he suffered in violation of his fundamental rights.
The 1st Respondent’s case was that, he was allegedly approached by the Appellant to prevail on his son to pay the Appellant money arising from a business transaction. The 1st Respondent claimed that he was not part of the alleged business transaction between the Appellant and his son; that as a result of his inability to get his son to pay the Appellant’s money, he was allegedly arrested and detained unlawfully at the Delta State Police Headquarters under the command of the 6th Respondent between the 8th to 13th August, 2021; and that the 1st Respondent claimed that the arrest and detention were at the Appellant’s instigation. The 1st Respondent also claimed that after his detention at the Delta State Police Headquarters, he was again invited to Zone 5 Headquarters of the Nigeria Police Force, Benin-City, Edo State, where he was allegedly subjected to persistent harassment, and the 2nd and 5th Respondent threatened to arrest and detain him if he failed to produce his son.
Consequently, he filed the application for the enforcement of his fundamental rights. When the application came up for hearing at the trial court, the Appellant’s Counsel informed the court that, in opposing the application, he filed the Appellant’s counter-affidavit and a motion on notice for extension of time to regularise the counter-affidavit. However, the trial court delivered a Bench ruling to the effect that because the counter-affidavit and the motion were not found in the court’s file, the Appellant and the 2nd to 6th Respondent had no counter-affidavit and other processes in response to the application. It directed the 1st Respondent’s Counsel to move the application. After hearing the application, the trial court delivered its judgement wherein it dismissed the 1st Respondent’s case. Dissatisfied, the 1st Respondent appealed to the Court of Appeal. The Court of Appeal allowed the appeal and granted the reliefs sought, but made a downward review of the financial reliefs. Aggrieved, the Appellant appealed to the Supreme Court, which dismissed the appeal.
Judgement of the Supreme Court
1. The Prohibition of Arrest in Lieu
By virtue of Section 7 of ACJA, a person shall not be arrested in place of a suspect. The provision is to the effect that, a person cannot be arrested for a crime suspected to have been committed by another person. Criminal responsibility is personal, and not transferable. And, nobody should be arrested in lieu of a suspect. There is no vicarious culpability in criminal offences, and a person cannot be held responsible for the offence of a family member.
In the instant case, since the Appellant and the 2nd-6th Respondent failed to rebut the affidavit of the 1st Respondent, the Court of Appeal was right to hold that Section 7 of ACJA was applicable to the facts and circumstances of the case. The finding of fact by the Court of Appeal could not be faulted, having regard to the unchallenged evidence to the effect that the Appellant was arrested and detained at the Delta State Police Headquarters on the instigation of the Appellant because of an offence allegedly committed by his son. Furthermore, there was unchallenged affidavit evidence that the 2nd to 6th Respondent harassed and threatened to arrest the Appellant, if he failed to produce his son and his photographs.
Per Ogbuinya, JSC at pages 96-97, paras. E-C:
“It is gleanable from the record, the bedrock of the appeal, that on the instigation of the Appellant, the 1st Respondent was arrested and detained by the 2nd – 6th Respondent in lieu of his son, John Samuel Ita, who had a stillborn business transaction with the Appellant. The concrete and classic evidence on record, the spinal cord of appeal, amply demonstrate that the 1st Respondent was a stranger to that business transaction that was mired in the quicksand of fiasco. The doctrine of subrogation which flourishes in the sanctuary of civil law has no atom of shelter in the sphere of criminal jurisprudence. Indisputably, the 2nd – 6th Respondent, on the prompting of the Appellant, wrongly employed the doctrine against the 1st Respondent. In the firmament of criminal law, criminal responsibility is personal to a particeps criminis. There is no transfer of criminal responsibility, even in the presence of proven consanguinity between a culprit and an innocent. Indeed, vicarious liability has no legitimate residence in the expansive hemisphere of criminology. The provision of Section 7 of the ACJA, an ambitious provision with a commendable mission to shield innocent citizens against unlawful arrest and incarceration by officers of law enforcement agencies, who act on the false information on commission of crimes fed on them by overzealous and pretentious complainants, concretises this hallowed principle of criminal law. Indubitably, the lower court’s decision, sought to be impugned, did not, in the least, disclose any ounce of hostility to the letters and spirit of the law as to magnet the reprobation of this court. Per contra, the lower court acted ex debito justitae when it nullified the decision of the trial court which was per incuriam par excellence. I accord it an unfiltered endorsement”.
The Duty of Court in Respect of Separation of Powers and Protection of Rights of Citizen
The courts must never interfere in the exercise of executive powers, particularly in the mandate of the Police to investigate crimes. However, the courts must endeavour always to balance the principles of separation of powers, and the protection of the rights of the citizen against oppressive executive actions.
Per Ogunwumiju, JSC at pages 92-93, paras. F-D:
“In the circumstances, I have to agree with the opinion of the court below, as stated on pages 326 – 327 of the record of appeal that:
‘Now to the manner of complaints of these breaches, the Appellant in paragraphs 9, 10, 11, 13, 14, 15, 16, 17, 19 & 24 of the affidavit at page 21 – 23 of the records are chronological narration of events and acts of harassment, intimidation, threats, embarrassed, harassment in church and actual arrest detention beyond 24 hours (4 days) without reason at Asaba and Benin City, twice with pressure to produce bank statements and BVN between 15th June and November 2021. It is important to note that, there were no charges pressed against him except for him to produce his son or pay up the debt on the transaction, the matter was taken from Warri to Asaba and then to AIG, Benin, Zone 5. He denied consistently that he was not part of the transaction, nor aware of the deposit made to his son. From the above, there were threats, actual detention beyond 24 or 48 hours, even though both had a court within 5km radius, the 1st to 5th Respondent refused to do the needful legally; they instead, employed the tactics of intimidation, blackmail, breaches and directive to produce his son or pay the debts. Clearly, the allegation was that his son who did the transaction absconded and the father/Applicant was responsible. The Applicant’s freedom was unjustly withheld, his fundamental rights infringed upon”.
The Special Nature of Procedure for Enforcement of Fundamental Rights
The proceedings in habeas corpus as incorporated in the fundamental rights enforcement rules, are special. The procedure and the course of action in the enforcement of fundamental human rights, are sui generis. Declaratory reliefs can be granted on originating summons in deserving cases. The Fundamental Rights (Enforcement Procedure) Rules is a statutory provision pursuant to Chapter IV of the 1999 Constitution and its provisions are not subject to the common law rules of any High Court, particularly in relation to the issue of enforcement of declaratory reliefs. Where the court is satisfied that there was or exists violation of the fundamental right of an applicant, the court is bound to make a declaration to that effect. The affidavit evidence sworn to and filed with regard to the violation of the right of an applicant constitutes legal and acceptable evidence where there is no counter-affidavit and/or there was default of appearance by the respondent, so long as the court was competently seised of jurisdiction.
The requirement of oral evidence, arises from the fact that the court has the discretion to grant or refuse a declaratory relief, and its success depends entirely on the strength of the Plaintiff’s own case and not on the defence. A declaration sought by an Applicant cannot be made on admission, or in default of counter-affidavit. The proposition of the law is applicable in general, but is not applicable to fundamental rights cases. The genre of fundamental rights cases are special and sui generis, and meant to protect the individual from other powerful individuals and the State if need be.
When Court Will Consider Police Report or Extra-judicial Statement in Application for Enforcement of Fundamental Rights
Per Ogunwumiju, JSC. at page 93, paras. D-F:
“The Police – 2nd to 6th Respondent herein, did not deem it fit to file a counter-affidavit at trial to contest the affidavit of the 1st Respondent. The court cannot look at Police reports, or other information not legally tenable before it. For the court to consider such statements, it must be attached to the counter-affidavit of the 2nd – 6th Respondent who were the 2nd – 6th Defendant at trial. The counter-affidavit must have been sworn to by the investigating Police officer who took the extra-judicial statement which the Police want to use to justify the complicity of the person they arrested for the crime for which he/she was arrested”.
The Duty of Citizens to Report Commission of Crime to Police
Generally, it is the duty of citizens of Nigeria to report cases of commission of crime to the Police for their investigation, and what happens after such 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
The Treatment of Affidavit Evidence Where Unchallenged
A court is obliged to act, on unchallenged affidavit evidence. The exception to the rule, is where the facts are obviously untrue to the judicial knowledge of the court and are in the category of facts which the court is under a duty to take judicial notice pursuant to Section 122 of the Evidence Act. In the instant case, the Appellant and 2nd to 6th Respondent had the opportunity, but failed to file a counter-affidavit to the 1st Respondent’s affidavit. The Court of Appeal was on solid legal footing to rely on the unchallenged affidavit evidence, to allow the appeal and grant the reliefs sought. The exceptions did not apply.
When Court Must Act on Facts Deposed to in Affidavit
Where the facts deposed to in an affidavit are cogent and capable of proving the case of the Applicant, a court of law is legally obliged to act on it. In the instant case, the unchallenged affidavit evidence acted upon by the Court of Appeal was natural, reasonable and probable in the entire circumstances of the case. The 1st Respondent deposed to the fact that he was arrested and detained beyond the time allowed by law at the Delta State Police Command, Asaba, on the instigation and malicious report by the Appellant on a business wherein he played no role. The fact was uncontroverted and justified a grant of the relief for unlawful arrest pursuant to Sections 34, 35 and 41 of the 1999 Constitution (as amended). Furthermore, the 1st Respondent stated that the 2nd to 6th Respondent threatened to arrest him and subjected him to persistent harassment, if he did not produce his son and his photographs. The fact was also not controverted, and was capable of proving the relief to stop threat of further arrest and incessant harassment of the 1st Respondent, pursuant to Section 33 of the Constitution.
The Need to Read Pleadings and Depositions in Affidavit Evidence as a Whole
Pleadings, including depositions in affidavit evidence, must be read as a whole, and not in isolation.
The Duty of Court to Limit Itself to Facts in Pleadings in Statement on Oath or in Affidavit Evidence
A court must confine itself and its observation to any facts within the pleadings, as stated in the statement on oath or affidavit evidence proffered before it. Any extraneous facts not legally before the court amount to mere speculations, conjecture, and a court making a case for the other party.
In the instant case, the Court of Appeal was right to set aside the judgement of the trial court based on speculations. The Appellant and the 2nd to 6th Respondent did not file any counter-affidavit to oppose any of the assertions of the 1st Respondent in his affidavit, and did not appeal against the ruling of the trial court refusing to look at the affidavit filed by the Appellant which was not in the court’s file. Therefore, the trial court could only consider the 1st Respondent’s affidavit. Anything else outside that affidavit was legally speculative, and not sworn facts which the court could use to determine the credibility of the 1st Respondent’s application.
Conclusion
Despite the avalanche of statutory and case law authorities prohibiting the invidious act, law enforcement agencies have not ceased to arrest citizens in lieu of suspects under investigation. Part of this is due to lazy investigation, leading to arbitrary tactics that violate the fundamental rights of citizens. What is required presently, is the will power on the part of the authorities to nip this evil practice in the bud, by holding investigating Police officers personally liable for damages, resulting from such illegal acts of arrest by proxy. Unless and until this is done, we will continue to have cases of innocent persons who are not in any way connected with the offence alleged, having to suffer the fate of the real suspect. As happened in the case of Smart v Idiokita under review, the offending Police officers are left in the system to continue their wickedness against other victims.
Ebun-Olu Adegboruwa, SAN