The law provides that “a person is not criminally responsible for an act or omission if he does an act in execution of the law…” This is called the defence of lawful authority which is an authority established and constituted under a written law. It consists of those persons who have the right to exercise public power to require obedience to their lawful command. It is well known that police officers are empowered by law to prevent crimes, prevent damage to property and execute the lawful sentence of a court. The Nigeria Police is a creation of statute and their duties are essentially crime related, and for the police to discharge its duties to ensure that lives and properties are safe under the law, it has been so empowered.

Section 4 of the Police Act stipulates the specific role of the Police in Nigeria. It provides that 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 enforcement of all laws and regulation with which they are directly charged, and can perform such military duties within or outside Nigeria or under the authority of the Act. Section 24 of the Police Act gives the Police the power to arrest without warrant in specified cases.

In Lagos State, the power of arrest given to the Police is provided by Section 10(1) and (2) of the Administration of Criminal Justice (Repeal and Re-enactment) Law of Lagos State 2011 (ACJL) and it says: “A Police officer may, without an order from a Magistrate and without warrant, arrest a person whom he suspects upon reasonable grounds of having committed an offence; arrests a person who commits an offence in his presence; arrests a person who obstructs a police officer while executing his duty, or arrest person who has escaped or attempts to escape from custody; arrests a person in whose possession anything stolen is found; etc. Sub-Section 2 of the same ACJL says: “The authority given to police officers to arrest a person who commits an offence in his presence shall be exercisable… not withstanding that the law creating the offence provides that the offender cannot be arrested without a warrant. Similar provisions can also be found in Section 26 of the Criminal Procedure Code and Section 10 of the Criminal Procedure Act which empower a police officer to arrest without a warrant only with respect to the execution of the law. A policeman who arrests an offender does not commit an assault. He escapes liability under Section 253 of the Criminal Procedure Code which says: “An assault is unlawful and constitutes an offence unless it is authorized and justified or excused by Law”.

Section 261 of the Criminal Code and Section 5(1) of the ACJL 2011 provides that: ‘it is lawful for a person who is engaged in the lawful execution of any sentence, process or warrant…to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.’ The general rule is a person arrested should not be handcuffed except by an order of the court, but if there is an attempt to escape or if there is an apprehension of violence or if the handcuff is considered necessary for the safety of the person arrested, then a police officer can use handcuff.

The officer effecting the arrest may touch and use such force as is reasonably necessary on the body of the person to be arrested but may be held liable for excessive use of force. Police officers can use force, in order to suppress a riot and during a search. However if a suspected felon or person whose offence carries a 7-year imprisonment or death, attempt to escape arrest, he may be killed by a Police officer. Please note that these provisions are not licenses to indulge in extra-judicial killings.

The 2007 judgment of the Supreme Court in the case of Adegboye Ibikunle v State is a vivid example. Here it goes: The Divisional Police Officer (DPO) in Asaba Delta State led some police officers including a Police Sergeant in search of one Nonso, a suspected notorious armed robber. Unknown to the DPO, Nonso had moved out of the premises and apartment and it was now occupied by someone who turned out to be the deceased. When the officers got to the premises about 2a.m, they knocked at the deceased’s door and identified themselves as police officers. The man refused to open the door and shouted back that he was not Nonso and that he was not prepared to open the door. The police then fired warning shots into the air. The man still did not open the door; instead, he warned the police officers to leave or else he would kill any officer who dared come inside.

He said: ‘Police go away. I know you have a gun, but the gun is ordinary water in my body.’ The Police Sergeant then jumped into the deceased’s apartment through the window and fired tear gas while the deceased also quickly moved into the bedroom and locked it. After two hours, the Police Sergeant, in an effort to incapacitate the deceased, fired a single shot at the downward end of the bedroom door in order to gain access. The gunshot killed the deceased and it later dawned on the other officers that the deceased was hit in the abdomen and that he was not even the Nonso they were looking for. On a murder charge, the defence of lawful authority was raised, but it failed both at the High Court and the Court of Appeal.

The Supreme Court held that:

1. The force used on the deceased was beyond the extent permitted by law.
2. The death of the deceased at about 2a.m was caused by the Police Sergeant who fired the gunshot and hit the deceased’s abdomen.
3. The shooting was intentional and not accidental.
4. The deceased who remained in his room throughout did not provoke the Police Sergeant; surely the defence of provocation cannot be relied upon by the Police.
5. The Sergeant’s life was not in danger, so the act of self-defence will not hold water.
6. The use of the firearm was mischievous and unreasonable. The Police Sergeant should not have thrown tear gas and also pump bullets into the deceased. The Police Sergeant was not even disciplined enough to obey simple instructions from his superior officer who warned him not to shoot. Such a character has no right to bear arms then.
7. The DPO being his superior officer made attempt to control and disarm the Police Sergeant who had earlier smashed the deceased’s window with cement blocks.

To this end therefore, the Police can detain any person whom they reasonably suspect of having committed an offence but they must not be extremely reckless with it, and it is expected that their method of investigation and arrest before detention should be fair and just. Section 9 of the Criminal Procedure Act gives us an insight into what the Police must do after an arrest. The Act provides that the suspect shall be given reasonable opportunity for obtaining legal facilities or other arrangement for his defence or release.” Note that the Police power of arrest does not include arrest by proxy. In other words, if a son commits an offence, his parents cannot be arrested and detained in lieu of the son who is nowhere to be found (See Section 4 of the ACJL 2011). Such arrest is unconstitutional and therefore a violation of the fundamental right of the parents arrested. The available remedy is to sue the Police for wrongful and unlawful arrest and claim damages.

The Court has held that if a person merely makes a report to a policeman, who on his own initiative takes the suspect into custody, it is imprisonment by the person who makes the report. Thus, a person who merely gives information which leads to the arrest of a suspect by the Police acting within their own mandate and responsibility cannot be liable in an action for false imprisonment.

A police officer must not ignorantly drag himself into litigation. He must examine any complaint with the acute eye of an expert whether any crime has been disclosed. This is necessary to prevent a situation where the police will be liable for unlawful arrest. In a decided case, a Federal High Court imposed a fine of N3 Million on the IGP, Lagos State Government and the Chairman of Lagos State Task Force for unlawful arrest and detention of the Plaintiff because the task force did not have anything to do with chieftaincy matter. Other statutory provisions relevant to the execution of law includes Section 203 of the Evidence Act of 2011 which states that the evidence of a police officer is enough to convict a person charged under any road traffic law with driving at a speed higher than the allowed maximum. Section 30 of the Firearms Act also empowers an officer with a warrant to break open any container in a place, to ascertain whether any firearm or ammunition is contained therein.

It is then justified to say that a police officer who makes an arrest on reasonable ground is not liable for false imprisonment, and it is immaterial that an offence has not been committed or that he arrested a wrong person. In making the arrest, the police officer is enjoined to actually touch or confine the body of the person to be arrested.

We know the Police are trained to react to crime and emergencies, results of which could be unexpected and unpredictable. Yes, the police are obliged to act but we hope they will rationalize all that they do. In as much as we know their powers can be justified on the grounds of duty, the law has not permitted or licenced a Policeman to make unlawful arrest or kill and that is why it is near impossible for Nigerians to really consider the Police as their friend.

It must be noted that a Police officer indicted for extra judicial killing  can be suspended, dismissed  after an orderly room trial, prosecuted in court and face the wrath of the law if found guilty. No doubt about it, the right to life is sacrosanct. It is therefore incumbent on the Police to be extremely careful and check their excessive instinct before making arrest. In fact the Police should simply watch it!

* ‘Tomi A. Ajayi (Mrs)

    Lagos-based Legal Practitioner

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