THE POWER OF THE POLICE TO ARREST AND THE NIGERIAN LAW

THE POWER OF THE POLICE TO ARREST AND THE PROVISIONS OF THE NIGERIAN LAW. Arrest is the act of apprehending and taking a person into custody (legal protection or control). This is because the person has been suspected of or observed committing a wrongful act. When a person is arrested, the person can be asked questions or subsequently charged to court. This can only happen when the law enforcement agency is satisfied that the person committed the crime.

Though it could be argued that arrest is a breach of the Fundamental Right of a person’s liberty as provided by the constitution SECTION 35 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AS AMENDED, arrest in some cases is necessary in the Criminal Justice System.

A complaint should be in writing and on oath and a warrant can be issued any day. SECTIONS 37 AND 38 ACJA. This might differ according to various jurisdiction.

A warrant of arrest is an authority in writing to a police officer or any other person directing the officer or person to arrest a named offender. The authority is also to bring the person before the court to answer a complaint made against him.

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The Administration of Criminal Justice Act (ACJA) SECTION 113 provides that a court may issue a summons or warrant . This should be as provided in the Act to compel the appearance before it of a suspect accused of having committed an offence. The offense may be in any place, whether within or outside Nigeria. Is should be triable in a State or in the Federal Capital Territory, Abuja.

Section 114 provides that in every case, the court may proceed either by way of summons to the defendant or by way of warrant for his arrest in the first instance. This is according to the nature and circumstances of the case.

A summons is issued to the offender. A warrant of arrest is issued to the police officer or any other person.

In the Northern part of Nigeria, Justice of Peace, Magistrate and Judges can issue a Warrant of Arrest. Only Judges and Magistrates can issue Warrant of Arrest in the Southern part of the country.

The National Assembly can issue a warrant of arrest in limited cases. EL-RUFAI v. SENATE OF NATIONAL ASSEMBLY.

A warrant of Arrest is directed to a named Police Officer, members of the police or private persons. This is as the case may be and when it is directed to a private person, the person shall have such powers of arrest as that of a police officer. SECTIONS 39 AND 40 OF ACJA.

When executing an Arrest Warrant, the person shall not use force. Force can only be used when there is reasonable apprehension of violence by the person to be arrested. This means that, if there is a reason to believe that the person to be arrested will use violence against the person executing the arrest, then the person executing the arrest can use reasonable force while executing the arrest.

On power of the police to arrest, note that the Court can also make an order that force is to be used while executing the arrest.

Where the person to be arrested tries to escape, then force can be used by the party executing the arrest.

Force can also be used to maintain safety of the suspect.

But for the exceptions listed, the general rule is that force shall not be used while executing arrest.

Section 5 of ACJA provides that a suspect or defendant may not be handcuffed, bound or be subjected to restraint except:
(a) there is reasonable apprehension of violence or an attempt to escape;
(b) the restraint is considered necessary for the safety of the suspect or defendant;
(c) by order of a court.

A warrant of arrest shall be issued where the law stipulates that such offence requires an arrest warrant. Also where it is a serious offence or where there is disobedience of Summons earlier issued.

A warrant of arrest must be in writing. It must be in duplicate and it must contain the name and particulars of the alleged offender. It must also contain the statement of the offence, an order to bring the person before the issuing authority, date of issue and the signature of the issuing authority.

A warrant of arrest can be executed at any day and anytime including public holiday. SECTION 43 OF ACJA.
This rule is dependent on the jurisdiction.

It should be noted that the Warrant of Arrest shall remain in force until it is executed or cancelled by the issuing authority.

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When a person is arrested with a warrant, such person cannot be re-arrested on same warrant. A new warrant is required.

A police officer, judicial officers and private persons can arrest an alleged offender without warrant.

A Judicial Officer officer can arrest a person without a Warrant of Arrest if the person commits an offence in his presence.

A private person can arrest without warrant. Only if the person commits a misdemeanour at night, a felony or an indictable offence.

When a private person arrests a person without a warrant of arrest, he should without delay, hand over the arrested person to the nearest police officer.
Where there is no police officer available at that particular time, he should proceed to the police station to hand the person over to the police. This should be done within a reasonable time and when the suspect is handed over to the police, the police shall re-arrest the suspect. SECTION 23 ACJA.

If a private person fails to handover the suspect to the police, the private person that executed the arrest will be liable for false imprisonment.

A police officer can arrest a person without a warrant of arrest. This mostly happens where the person commits a crime in his presence. Another instance is where the person is suspected to have stolen something. This can also happen where the officer reasonably believes that a warrant has been issued or the person is obstructing a police officer while he is carrying out his lawful duties and so on.

A police officer that arrests a person without warrant, is to take the arrested person to the police station within reasonable time.

You should know how to protect your right. You should know the provisions of the law on the power of the police to arrest