Criminal Litigation Guest Columnist Procedural Law


It is a fundamental duty of every government to ensure the safety of lives and property of its citizens. Safety and peace are invariably indicators of fulfilled electoral promises as well as good governance.

In Nigeria, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides for Fundamental Objectives and Directive Principles of State Policy. Section 14 (2)(b) thereof provides as follows:

“The security and welfare of the people shall be the primary purpose of government”

Flowing from the above, the security of the people is clearly a pivotal responsibility of the government to the people. Where the government fails in this regard, it has both failed the people and defeated the purpose of its existence.

Undoubtedly against this background, the Nigerian police exists to ensure the security of the lives and property of Nigerians. For the avoidance of doubt, the Police Act, which establishes the Nigeria Police provides in section 4 thus:

“The police shall be employed for the prevention and detection of crime, the apprehension offenders, the preservation of law and order, the protection of life and property and the due enforcement of laws and regulations with which they are directly charged and shall perform such military duties within and outside Nigeria as may be required of them by, or under the authority of this or any other Act.”

The Nigerian Police has Powers for Real

In essence, by section 4 of the Police Act, the Nigerian Police derives its power to arrest and detain offenders of the law or those who are reasonably suspected to have committed an offence. It is equally clear that the Nigerian Police has the power to arrest, interrogate and detain suspects in connection to a crime. This goes to explain that the power of the police to incarcerate offenders is statutory and established.

Importantly, this statutory provision of the power of the police to arrest offenders has received judicial encomium on several ocassions. In Dokubo Asari V. Federal Republic of Nigeria (1) the Supreme Court held that:

“The power of arrest of suspected offenders is vested in the police and no one can take it away from them. This general power invested in the police to arrest and detain suspected criminals is statutory.”

Also, in Igweokolo V. Akpoyibo & Ors (2), the Court of Appeal held as follows:

“By all odds, the police has the statutory power to investigate, arrest, interrogate, search and detain any suspect”

Flowing from the foregoing, the Nigerian Police enjoys both statutory and judicial backing in the exercise of its power to arrest offenders and suspects.

It must be stated, however, that the exercise of this power must be done properly and lawfully. The statutory bestowment of the power on the police is not an absolute right to arrest persons without caution. Where such power is not exercised lawfully, it stands the risk of being condemned by the Court. Thus, in Igweokolo V. Akpoyibo & Ors (3), the Court held that the power of arrest, detention and interrogation must be exercised by the police in accordance with the law. In the words of the learned Justice Onigbanjo of the Lagos High Court:

“By all odds, the police has the statutory power to investigate, arrest, interrogate, search and detain any suspect. The only qualification is that the power must be exercised in accordance with the law”

It goes without saying that since the power of arrest, search, interrogation and detention of suspects is bestowed on the police by the law, an attempt by the police to act in contravention of the law amounts to biting the finger that feeds it.

Furthermore, in Falade v. Attorney General of Lagos (4), the Court held that no Court would fold its arms to see the police act beyond the power conferred on them by the law. In the words of the Court:

”The court is always ready and will be quick to give reliefs against any improper use of power of the police”

Similarly, in Sunday Jimoh V. Attorney General of the Federation (5), the Supreme Court quipped:

“Those who feel called upon to deprive other persons of their personal liberty in the discharge of what they consider their duty should strictly observe the terms and rule of law.”

What is the Million Dollar Question?

From all indications and from a plethora of case laws, the power to the police to arrest and detain is not in question. What calls for serious attention is the manner in which this power is exercised.

In Anogwie & Ors V. Odom & Ors (6), the appellants were arrested by the police and detained for over three weeks on allegations of conspiracy to commit fraud, fraud and stealing. In truth, all that happened was that the first respondent was owed a debt by the appellants. The police used force to make the appellant pay the debt, using detention as the propeller for the payment. In the end, the appellants filed application for the enforcement of fundamental human right, seeking, inter alia, a declaration that the arrest and detention of the four appellants amounts to a violation of their fundamental right. The Appellants also sought ten million Naira damages for the alleged violation.

The trial court found that the arrest was in breach of the right to personal liberty as contained in section 35 of the Nigerian Constitution. The Court therefore granted five of the appellants’ prayers but refused the prayer for the payment of ten million Naira as damages for violation of fundamental right.

What do you need to Know about this Question?

Moving on, at the Court of Appeal, it was held that the detention of the four appellants by the police was unconstitutional as it violated the provisions of Nigerian laws. The Court further held that where the lower court found that the rights of the appellants were breached, it had to award damages. Very worthy of note in this case is the judgment of Frederick Ozinkpowo, JCA excerpted as follows:

“Generally, the court will not hesitate to declare any wrongful action of the police null and void if it is discovered that there had been an improper use of police power under the guise of the so called exercise of the power of investigation and prevention of crime.”

Why Isn’t the Power of the Police Absolute?

At this point, it may be necessary to explain why the power of the police to arrest, detain and interrogate cannot be absolute. The simplest way to explain this that the powers of the police derive from the law, and the same laws also grants certain powers and rights to individuals in Nigeria. All persons in Nigeria are endowed with certain inalienable rights, which the constitution seeks. As a matter of fact, it can be argued that the existence of the police and the power granted them in the first place is to ensure that these individual rights are not violated. It may then be important to examine the rights of Nigerians as they relate to the power of arrest and detention by the police.

Fundamental Rights and the Power of Arrest: the Law Proper

The Constitution of the Federal Republic of Nigeria, 1999 (as amended) reads in part (7) as follows:

“We the people of the Federal Republic of Nigeria having firmly and solemnly resolve, to live unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding and to provide for a constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people do hereby make, enact and give to ourselves the following constitution:”

From the above provision of the constitution, it is clear that the basis essence of the existence of the constitution is to promote freedom, equality and justice for the people of Nigeria. Thus, the constitution and all of its provisions is hinged on the freedom and welfare of the people, and the power of the police is not an exception. It is in pursuance of this freedom and equality that the constitution provides for fundamental human rights. Very important to this discussion is the right to personal liberty, which is provided by section 35 (1) of the constitution as follows:

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

What this provision of the law suggests is that a person cannot be deprived of their freedom except in certain instances allowed by law. It goes to say that any deprivation of a person’s freedom without following the procedures lid down by the law is a serious violation which the law frowns at. Since the purpose of the law and the powers conferred on the police were meant to pursue freedom and equality for the people, the police cannot then turn round to violate the same freedom without recourse to the law.

It is for this reason that the courts have always frowned at the abuse of powers by the police. It has been held repeatedly that while the police has the power to arrest, it must respect the constitutional provision of the right to personal liberty. Where a person commits or is alleged of committing an offence, the police can arrest or detain such person within the confines of the law. Where the Nigerian Police goes beyond the ambit of its constitutional powers, the law which it seeks to enforce is offended. One major area of abuse of power by the police is in the case of substitutional arrest, which is considered below.

Is Substitutional arrest Lawful?

Substitutional arrest is the arrest of one person in lieu of another. It occurs when a person who has not committed or has not been alleged of committing any offence is arrested because their friend or relative who is alleged of committing an offence cannot be found by the police. The rationale for this is that when an offender’s relative, especially father or mother, is arrested, such person will be left with no choice than to come out of their hiding place. This reason doesn’t sound very plausible. While there could have been instances where the offender reports themselves to the police in order to secure the release of their incarcerated relatives, many offenders will never show up, thereby leading to the continual deprivation of an innocent person of their right to personal liberty. It should be said that this type of arrest would not be said to be violation of fundamental right if the law provides for it. Unfortunately, there seems to be no such provision in Nigerian laws. The law has no provision for substitutional arrest. Further, we may have to find out if the law is silent on such an important matter of breach of right. The position of the law depends on jurisdiction. For this purpose, Lagos and Abuja form a clime while other states belong to another. It is necessary to examine the position of the law in the two climes.

Substitutional Arrest in Lagos and Abuja

The criminal justice laws in operation in Lagos and Abuja are not silent on the issue of substitutional arrest. The laws have specific provisions prohibiting arrest in lieu. Section 7 of the Administration of Criminal Justice Act (ACJA), 2015, which is applicable in Abuja and all Federal Courts (such as the Federal High Court and Court of Appeal) provides as follows:

“A person shall not be arrested place of a suspect”

Similarly, section 4 of the Administration of Criminal Justice Law (ACJL) of Lagos state, 2011, applicable in Magistrate’s and High Courts in Lagos state, provides:

“No person shall be arrested in lieu of any other person”

The effect of the two sections above is that the police is clearly prohibited from arresting one person in lieu of another, irrespective of how close one person is to another. Thus, where the police arrests one person in place of another, it is not only a violation of fundamental human right, but also an obvious disregard for administration of criminal justice laws. In summary, as far as Lagos and Abuja are concerned, the arrest of one person in lieu of another is not only beyond the constitutional power of the police but also a violation of express provision of criminal justice laws.

Substitutional Arrest in other States

The Criminal Procedure Laws (CPL) of states in southern Nigeria and the Criminal Procedure Code Laws (CPCL) of states in northern Nigeria do not have any specific provision prohibiting substitutional arrest. It can be said that the laws are silent in this regard. However, this does not mean that the police have the power to carry out substitutional arrest in these jurisdictions. Even though the criminal justice laws of these jurisdictions are silent, the courts will not hesitate to protect the fundamental human rights of persons in these jurisdictions. Against this background, there are a plethora of cases in which the courts have ruled against rarest in lieu.

In Akpan V. State (8), the abhorrence of substitutional arrest by the court was made manifest when the court held expressly:

“There is no law that where the offender is unable to be arrested, his relative should be arrested”

Similarly, in ACB V. Okonkwo (9), the Court of Appeal stood a strong stand against arrest in lieu. The Court, per Niki Tobi, JCA (as he then was) said metaphorically:

“There is no law that says that the sin of the son be visited on the mother simply because of that relationship.”

This position is hinged on the fact that anyone who commits an offence is the only one who is criminally liable for their act, unless the offence was formed out of conspiracy. The claim that the parent should be arrested because their child would not have become an offender if properly brought up is unfounded and illogical. Niki Tobi, JCA, went on to say:

“I know of no law which authorizes the police to arrest a mother for an offence committed by the son. Criminal responsibility is personal and cannot be transferred…A police officer who arrests “A” for the offence of “B” should realize that he has acted against the law. Such a police officer should, in addition to liability in civil action, be punished by the police authority”

In Sunday Odogwu V. The State (10), the Court of Appeal examined whether the police was right in arresting a person for an offence committed by another person. The court said expressed:

“It is beyond doubt that an accused person cannot be held responsible for an act he did not commit.”

From the foregoing, it is clear that whether the law is silent on the issue of substitutional arrest or not, the police lacks the power to arrest one person in lieu of another. In the light of this, the police will be acting ultra vires and in violation of fundamental human rights to arrest a person in the place of another, no matter how close the arrested person is to the suspect. As a matter of fact, persons who are arrested in place of others have the right to approach the court for the enforcement of fundamental rights. It should be noted that the police officer is not protected by the Public Officers Protection Act in this case because they have acted beyond the confines of their powers. Thus, those whose rights are violated in this respect should not hesitate to institute civil actions against violating officers.


1. (2007)12 NWLR (pt 1048) 320
2. (2017) LPELR-41882 (CA)

3. (2017) LPELR-41882 (CA)

4. (1980) 2 NCLR 771

5. (1998) HRL RA 513 at 515

6. (2016) NGCA 90

7. The preamble thereof

8. (2008) 14 NWLR (pt 1106) 72

9. (1997 ) 1 NWLR (pt 480) 194

10. (2013) LPELR-220391 (CA)

Article Author

Taiwo Elijah Ogunleye

Taiwo Elijah Ogunleye is a legal practitioner. He obtained his law degree from the prestigious Obafemi Awolowo University, Ile-Ife. His areas of interest are Human Right, Mergers and Acquisitions, Taxation, Company Advisory and Property Consultancy. He can be reached on +2347038957746, +2348155665569 and





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