What to do if I was unlawfully arrested?

Some examples of an unlawful arrest are listed below:

• Arrest without probable cause
• Arrest of the wrong person which is known as arrest in lieu, contradicting section 7 of the ACJA which prohibits such arrest.
• Arrest based on malice or personal gain
• Arrest made with warrant of arrest obtained with false information given to the judge by a police officer
• Arrest made without following the prescribed procedure
• Arrest made without mentioning the potential arrestee’s rights to them which contradicts Section 6(2) of the ACJA
• Arrest made without mentioning the reasons for the suspect’s arrest to them

In the case of Christie & another v. Leachinsky (1947)1 Al ER 567, the suspect was arrested without being told the reason for his arrest. Even though the officers might lawfully have arrested the suspect for the felony of stealing a bale of cloth, which they had reasonable grounds for suspecting, the police officer failed to inform the him the reason for his arrest. The court held the arrest to be unlawful, stating that “Under ordinary circumstances, the police should tell a person the reason for his arrest at the time they make the arrest. If a person’s liberty is being restrained, he is entitled to know the reason behind such restraint.” The only exception is when that person is in the actual commission of the crime, or escapes from the lawful custody as provided under Section 5 of the Criminal Procedure Act and similarly under Section 6 of the Administration of Criminal Justice Act (2015).

Complaints to the National Human Rights Commission: The National Human Rights Commission is established for the promotion and protection of human rights in Nigeria. If you feel your rights have been violated, you can file a complaint to the Commission.

Functions of the Human Rights Commission: 

1. Investigation of all matters relating to the promotion and protection of human rights.
2. Monitoring and investigating all alleged cases of human rights violation in Nigeria and make appropriate recommendations to the federal government for prosecution and such other actions as it may deem expedient in each circumstance.
3. Assisting victims of human rights violations and seeking appropriate redress and remedies on their behalf.

What is required to complete a human rights complaint form 

• Name, address, email, and telephone of the complainant. Note: “Complainant” is a person who brings a claim.
• In the body of the complaint, include a story of what happened and the name of the violator (individual/ institution).
• Alongside the complaint, you are advised to include necessary documents that will serve as evidence of the violation.
• You are required to provide the contact details (Name, address, telephone) of any witnesses.
• At the end of the complaint, you must state certain things you want the Commission to do and ensure your signature is attached.

To know more about the format of a formal complaint, visit https://nhrc.gov.ng/index.php/complaint-form. You can also visit the State branches of the National Human Rights Commission to lodge the complaint. 

The Commission has quasi-judicial powers. This means to help with your complaint it can:

• summon persons and evidence.
• visit any place of detention with a view to ensuring that detainees’ rights are not violated.
• award compensation and enforce its decisions.

The decisions of the commission are enforced by taking that decision to the High Court and asking for it to be enforced.

Complaint to the Commissioner of Police: In the case of harm or disturbance by a police officer, a report should first be made to the Commissioner of Police.

• First seek medical attention and obtain medical reports and pictures of the harm done.
• Contact a lawyer, human right organization or National Human Rights Commission for assistance.
• Notify the appropriate authority in charge of the offender (the AIG or Human Rights Department of the Nigerian police Force Complaint Response Unit (CRU), in the case of an offending police officer)
• Attach the medical reports and pictures to the notice. You could ask a lawyer to write a petition.  to the authorities in charge of the offender 
•      You can forward such to their mails – complaint@npf.gov.ng or npf complaint@gmail.com or npf.gov.ng/complaint.               

Can I challenge unlawful detention in court? Yes. If no positive response is received, then you can evaluate with legal support whether to proceed to file a case in court to seek the enforcement of your right.

The Fundamental Rights Enforcement Procedure: If you feel your arrest was unlawful, and you want to challenge the arrest, check the A4J guide on Fundamental Rights enforcement procedure for practical guide on how to enforce your rights.

Note that the burden of proving an unlawful arrest rest on the claimant. That is, if you want to prove that your arrest is unlawful, the burden of proving such rests on you.

In order to strongly prove that your arrest was unlawful, you should consider obtaining the following evidence:

• Witness statements. You should write down your own part of the story as quick as possible. Try  remember in as much detail, providing the circumstances, including when and where the arrest was made, and the reason the law enforcement officers gave when you were arrested.
• Police records of the arrest. Police protocols mandate officers to make records of arrests that identifies the officers involved, the reason why the suspect was arrested and the circumstances around their arrest. Getting this early can be valuable if the police try to change their story.
• The name of the officer conducting the arrest and the police station to which they are attached. This information may be found on their uniform, badge or in the arrest record relating to the arrest, or the police station at which they were detained.
• Interviews with the relevant law enforcement officers. Once you have been arrested, there will usually be an interview and a record of this interview. Request this record if you have not received it.
• Witness statements. Were there other people at the scene? If yes, they could serve as witnesses. Ask any person who was a witness to the events to write their recollection of the event as fast as possible.
• Videos, photos or audio. This could be video, or audio footage taken by yourself, witnesses, CCTV or police ‘body cameras’. If you think there was CCTV or camera footage, you may have to request for them.
• Any other documentation such as telephone records, messages or notes that were written down at the time of the arrest; and
• Court documents relating to your arrest.

Getting all this evidence may take time and you may need to go to the scene of the arrest as well to find other witnesses and people who may have observed t the incident. This may be difficult if you’re in detention already. You may need the support of your lawyer and friends to help you gather those evidence.

Evidence will be relevant to prove key issues.

Key topics when deciding if an arrest was unlawful

Claims of wrongful arrest can be hinged on two major issues which will be analysed by a judge:

1.Whether or not the police should have believed that the person arrested had committed, is committing, or is likely to commit a criminal offense.

This refers to whether there was probable cause. Hence, where a reasonable man would have believed there was probable cause, then the arrest would be deemed lawful; otherwise, the arrest may be deemed unlawful.

2.Whether or not it was necessary to carry out the arrest. This implies if proper investigation could have actually continued to determine who exactly committed the crime in question without arresting the person.

Where proper investigation could have continued without arresting the person, the arrest may be deemed unlawful. It is pertinent to note that carrying out proper investigation or enquiry before securing an arrest is imperative, in order to avoid unnecessary infringements of people’s right to freedom.

To determine if an arrest was unlawful, the court would consider:

• whether or not the police had reasonable cause to secure the arrest,
• whether or not securing the arrest was the best option and
• whether or not the arresting officer followed the prescribed procedure for securing arrest.