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One of the sacred liberties of man is the liberty to move freely. Unless where legitimate exception is permitted by law, any limitation on a man’s liberty to move freely is an infringement on his fundamental right. In Nigeria, such infringement is actionable either as a common law tort called false imprisonment or as a breach of constitutional right of personal liberty guaranteed under Section 35 (1) of the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration Act) to the effect that “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”. It should be stated clearly that different procedures of enforcement apply in pursuing a case of false imprisonment and a constitutional right enforcement for unlawful detention. In this piece, no distinction is made between false imprisonment and unlawful detention except where such distinction is necessary for clarity.
Unlawful detention denotes a restraint of a person in a bounded area without any justification. The infringement may arise from a restraint by a private citizen as well as detention by agencies of the government such as false arrest by the Police. The person so restrained is said to be a “prisoner” so long as he has no liberty to freely go at any time (however short) to any place he wishes without bail or otherwise. It is important to mention that several other fundamental right breaches or torts (such assault, battery, degrading treatment or even crimes) may arise from the same act(s) which constitute(s) unlawful detention. However, unlawful detention is the focus of this piece.
The following circumstances may give rise to unlawful detention:
1. Being locked up in a room, car, airplane, cinema, toilet, goal post or any other enclosure without the victim’s consent;
2. Being unlawfully detained in the custody of the Nigerian Police, Nigerian Immigration Service, Economic and Financial Crimes Commission, Nigeria Armed Forces (including Nigerian Civil Defence Corps), or any Nigerian Agency vested with or without power to arrest and detain;
3. Being held up at a gun point with threat of being shot if you try to move,
Elements of Unlawful Detention
There are three elements of unlawful detention which the Nigerian courts have upheld over time and which a person claiming unlawful detention must prove by credible evidence:
1. A total restraint on the movement of a person. This is usually not difficult to prove unless where the restraint is not a total restraint but a partial one.
2. The restraint must have been without consent or justification. Where the plaintiff consents to being restrained, he cannot longer complain about being restrained. However, care should be exercised in knowing when consent to be restrained is revoked so that any further restraint after revocation of consent will be unlawful and therefore an unlawful detention.
3. There was no way out of the restraint or restrained area. Please note that where an alternative way out of the restrained area exists, the claim for unlawful detention cannot be sustained if the plaintiff fails to take it. However, the plaintiff will be justified for not taking the alternative way out of the restraint if doing so will endanger him life or limb.
The above elements are co-extensive and all must be proved. Where the plaintiff fails in any of them, the action for unlawful detention will fail.
Arrest and Detention by Police
Detention by the Police or any other body or authority, no matter how short, may be a breach of fundamental right by both the Police and the complainant. But that can only be so if the detention is found to be wrongful or unjustified in the first place. The period of detention is not relevant in making a case of unlawful detention. This is because infringement of unlawful detention is a complete deprivation of liberty of a person for anytime without lawful cause, however short. It is therefore essential for the detained person to demand to be let out, the refusal of which will make the infringement complete.
The power of arrest by the Police is provided in section 24 of the Police Act and the power is undoubtedly wide and susceptible to abusive interpretation by the law enforcement agency. Corollary to the power of arrest is the power to detain a suspect under section 29 of the Police Act. Similar provisions conferring wide power to arrest is contained in the enabling law of the EFCC, NDLEA to mention a few.
However, the courts have interpreted the provisions on the power to arrest and detain very strictly against the Police. The test of whether a detention by the Police is unjustified turns on a (sometimes) elusive question of whether the Police had a reasonable suspicion that the detainee had committed an offence. It appears that the test of reasonable suspicion may be a subject of manipulative interpretations. However, the courts have agreed that the test is that of a reasonable man. Therefore, the question usually asked is whether in the opinion of a reasonable man, the detention by the Police is based on a reasonable suspicion.
Liability of the Complainant of a Crime
An unsavory part of a case of unlawful detention is the role played by a complainant who has gone to the Police with a false allegation that a person has committed a crime. The common saying regarding oppression of man by man is no less exemplified by the use of state machinery to harass and intimidate a private citizen. I am not by any means suggesting docility in reporting a crime to the law enforcement agency. It is in the interest of our collective security to ensure that no offender escapes the wrath of the law. However, a considered caution ought to be exercised in ensuring that an allegation of crime to be made to the Police is based on reasonable, probable ground. Instructively, it is an offence under the Freedom of Information Act, the Administration of Criminal Justice Law of Lagos State and several other penal laws to give false information to a law enforcement agency or any other constituted authority.
The law is well developed by Nigerian courts on the issue to the effect that anyone who lodges complaint with the Police, out of malice or in bad faith, leading to the arrest and/or detention of another person (the suspect) is also answerable in law for the detention, harassment and/or injuries caused to the suspect. Therefore, the determining question usually asked by the court is whether in the opinion of a reasonable man, was there a reasonable or probable cause to make the complaint to the Police? If the answer is yes, the complainant has no liability in any action subsequently brought by the detained person. But if the answer is no, then the complainant (and the Police) are jointly and severally liable to the person so detained for unlawful detention.
The plaintiff has the duty to prove that the complaint ought not to have been made and that there was no reasonable ground for making it. It is not enough for a plaintiff in a claim for unlawful detention to plead and provide evidence that the defendant made a report against him to the Police but he must also plead and establish that there was no reasonable and probable cause for making the report or that the report was made out of malice or bad faith. The complainant will be found liable where the report made to the Police is based on false and incorrect information. See Agbakoba v. SSS (1994) 6 NWLR (Pt. 351) 475 and Ejiofor v. Okeke (2000) 7 NWLR (Pt. 665) 363.
Some defence counsel have relied on some Court of Appeal’s decisions in submitting that where an individual has merely lodged a complaint to the Police and the Police thereupon “on their own” proceeded to carry out arrest and detention, then the complainant is not liable as the act of imprisonment is that of the Police. The foregoing submission is not only curious in my view but also tends to put the blame of any wrongful arrest (and detention) solely on the Police in that it exculpates the complainant from the required obligation to ensure that only accurate, true and correct information is supplied to the Police. I have earlier stated that it is an offence to furnish wrong information to the Police. In other words, every complainant is obliged to verify the authenticity of the allegation of crime before reporting to the police. It is therefore inconceivable for a complainant to plead to be excused from liability where a person has been wrongfully detained on his false allegation. Any submission seeking to excuse the complainant from liability in a case instituted for unlawful detention ought to be discountenanced in any circumstance where it is clear that the arrest was wrongfully made, particularly where any the following elements is present:
1. Where the Police fails to investigate a defence of alibi; or
2. Where the complainant is acting under malice or bad faith against the plaintiff; or
3. If the basis for the arrest is otherwise an exercise of the plaintiff’s lawful right (e.g. right to lawful assembly, freedom of expression, right to self-defence, etc) and therefore ought not to have been arrested ; or
4. Where the complainant insisted that the plaintiff must be arrested or engineered the arrest of the plaintiff; or
5. Where the detaining authority does not have the power to detain or in any other ways in which the complaint leading to the detention ought not to have been made if the complainant was acting reasonably.
The Test of Reasonableness and the Element of Malice or Bad Faith
The common test of whether or not the Police ought to detain a person is the test of a reasonable man. The test is better appreciated in its application to cases than in definition. In applying this test, the court tries to look at the allegation against the suspect through the eyes of a reasonable man. A reasonable man, according to the Supreme Court in Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 is a man with or who possesses a good, reasonable faculty who acts sensibly, takes proper but not excessive precautions, does things without serious delay and weighs matters carefully but not over specifically. So, if in the eyes of a reasonable man, in the opinion of the court, the suspect ought not to have been detained, the court will likely hold that the Police has acted wrongfully by detaining him. Where the detention does not pass the test of reasonableness, the detention will be declared unlawful.
In my own perspective, a man making a complainant to the Police should be deemed unreasonable if he is any of the following:
1. If he is acting on vengeance or vendetta directly or indirectly against the plaintiff; or
2. If he is over-zealous or acting under speculations, extremities or idealisms; or
3. If he supplies the Police with false or inaccurate information howsoever.
Bad faith and malice connote some bad motive or ill-feeling nursed by the complainant against the suspect. The position of law is clear that malice or bad in itself will not ordinarily expose the complainant to liability if indeed the offence reported to the Police was actually committed by the suspect. The truth of the allegation overrides any element of malice or bad faith of the complainant against the suspect, and is a complete defence to any civil action by the suspect. In that circumstance, the malice or bad faith is just a motivation as the suspect is culpable anyway.
However, where the allegation is false, bad faith or malice will be imputed to the complainant. If for instance, a creditor lodges a complaint of stealing to the Police regarding a debt owed to him by a debtor, any detention of the latter on such complaint may give rise to an action for unlawful detention. It will be unlawful (and therefore unreasonable) for the complainant to report a case of stealing in respect of a loan and for the Police to dabble into what in law is purely a private commercial relationship between two citizens. Also, where a suspect gives statement to the Police upon being arrested and claims alibi (i.e. that he was at another place at the time of the offence and therefore did not commit the offence), it will be reasonable for the Police to investigate his claim of alibi. Detention without investigating the alibi will be unreasonable and can give rise to the presumption bad faith. The foregoing are just instances, the category is not closed.
The underlying meaning bad faith (and when it can be implied) was clearly muted by the English Court in the case of Melton Medes Ltd. V. SIB (1995) 3 All ER 88, in which it held in pages 889-890 that
“The term ‘bad faith’ has variety of meanings in different contexts. Thus in the field of administrative law, where the validity of a decision or act is challenged on this ground, it is sufficient that the power to decide or act has been exercised for purposes otherwise than those for which the power was conferred or without regard to the relevant, or only the relevant considerations. There is no necessary moral connotation.” (Emphasis supplied)
I like to emphasize that the test of reasonableness and malice or bad faith is appreciated more in practical sense than in theory. Except in few instances, there is hardly any decided case which serves as precedent for another in determining whether a detention or complaint passes the test of reasonableness. Each case ought to be treated on its own merits.
The Use of Police or EFCC to Recover Debt
A rather strange practice of using the machinery of the State as a debt recovery agent has featured recently in commercial dealings. Nigerian banks and other financial institutions are in the practice of employing the Police or EFCC to harass and intimidate their debtor into reaching a compromise in respect of a debt owed. Whilst the details of each of the cases are not the subject of this piece, it is important to state that the practice is not only repugnant to commerce but also unlawful. It is repugnant to commerce because it creates fear and tension in commerce and discourages small business owners from subscribing to the opportunities offered by financial institutions. It is unlawful because because the Constitution forbids the use of Police or EFCC or any other state machinery to arrest and detain a citizen without any legitimate reason. The courts have declared that law enforcement agencies are not debt recovery agents and therefore should not be consultants to banks and other financial institutions in recovering debts from their customers. A case of unlawful detention may be made out against a financial institution and a state authority engaging in this unconstitutional practice.
Remedies for Unlawful Detention
The remedy for unlawful detention is monetary compensation and public apology. Once a person proves that his right to liberty has been infringed by a tort of false imprisonment, the court is empowered to award compensation on liberal terms to that person against the party who committed the unlawful detention and everybody who takes part in it. See Jim - Jaja V. Commissioner of Police Rivers State and Ors. (2013) 6 NWLR (Pt. 1350) 225.
Injunctions can also be granted to prevent recurrence of such unlawful detention. With a proactive legal team, unlawful detention can be entirely avoided by an ex parte injunction (which is a type of injunction granted by the Judge without the knowledge of the person against whom the injunction is sought).
The plaintiff must make a claim for a certain sum of money as the court is not Father Christmas and therefore will not award a relief not claimed. The amount to be awarded varies depending on several factors to be considered by the court such as the status and reputation of the plaintiff, the duration of the detention, any pecuniary loss to the plaintiff attributable to the detention, and so many others. The enforcement of the monetary award made against the Police or EFCC is usually enforced by attaching any fund in a Nigerian bank standing to the credit of the Police or EFCC.
Nigerians are encouraged to challenge the breach of their constitutional right by the Police or any other law enforcement society. Nigerians should not be discourage by the rather slow system of justice. The wheels of justice grind even, though slowly. It is by so doing that we can have a better society free for us all. Many will become richer by so doing.
Kayode Omosehin is a lawyer practising in Lagos, Nigeria with the law firm Ajumogobia & Okeke.