Smart V Idiokita and Illegality of arrest by proxy (1)

INTRODUCTION

From time immemorial, criminal liability has always been personal. You cannot transfer the responsibility of a crime from one person to another, no matter their relationship, and in the absence of any joint agreement to commit a crime, one person cannot be held liable for the criminal action of another. The law enforcement agencies in Nigeria are well aware of this basic principle of our criminal law jurisprudence but they still proceed to arrest citizen A for the alleged offence of citizen B. In some cases, a father is arrested for the alleged criminal conduct of his son or vice-versa, or one business partner is held liable for the conduct of his co-partner. Although the courts have pronounced upon this principle of law in many cases, it became imperative to insert a specific clause in the Administration of Criminal Justice Act in 2015, in order to arrest the ugly trend. This notwithstanding, police officers in particular have refused to respect the rights of citizens in this regard. The decision whether or not a person commits an offence is from the inner mind of the offender and since only God knows the heart of a person, no human being is to suffer for the conduct of another. One way to end this malady is to hold the particular police officer who violates this principle personally liable for his misconduct. If for instance the case ends up in court, any award of damages should be paid by the offending officer, in addition to possible demotion in rank or outright dismissal.

THE FACTS OF THE CASE

The facts of this case are as reported in Smart v Idiokita, (2026) 20 NWLR (Pt.2044) 63. The 1st respondent by an application for enforcement offundamental rights sued the 2nd to 6th respondents and the appellant as the 1st to 6th respondents respectively seeking a declaration that his arrest and detention by the 6th respondent from 10th to 13thAugust 2021 on the appellant’s instigation was unconstitutional, illegal and unlawful and an infringement on his fundamental rights as guaranteed under sections 34, 35 and 41 of the 1999 Constitution (as amended); and a declaration that the threat of his father arrest by the 3rd to 5th respondents on the appellant’s instigation wasunconstitutional, illegal and unlawful and posed a likelihood of infringement on his fundamental rights as guaranteed under sections 34, 35 and 41 of the Constitution. The 1st respondent also sought inter alia the sum of N20,000,000.00 as damages against the 2nd to 5th respondents for the infringement of his fundamental rights; and the sum ofN10,000,000.00 as damages against the appellant for instigating his arrest and detention for four days without trial and continuous threats to life, harassments and trauma he suffered in violation ofhis fundamental rights. The 1st respondent’s case was that he was allegedly approached by the appellant to prevail on his son to pay the appellant money arising from a business transaction. The 1st respondent claimed that he was not part of the alleged business transaction between the appellant and his son; that as a result of his inability to get his son to pay the appellant’s money, he was allegedly arrested and detained unlawfully at the Delta State Police Headquarters under the command of the 6th respondent between the 8th to 13th August 2021; and that the 1st respondent claimed that the arrest and detention were at the appellant’s instigation.The 1st respondent also claimed that after his detention at the Delta State Police Headquarters, he was again invited to Zone 5 Headquarters of the Nigeria Police Force, Benin-City, Edo State, where he was allegedly subjected to persistent harassment and the 2nd and 5th respondents threatened to arrest and detain him if he failed to produce his son. Consequently, he filed the application for the enforcement of his fundamental rights. When the application came up for hearing at the trial court,the appellant’s counsel informed the court that, in opposing the application, he filed the appellant’s counter-affidavit and a motion on notice for extension of time to regularise the counter-affidavit.However, the trial court delivered a bench ruling to the effect that because the counter-affidavit and the motion were not found in the court’s file, the appellant and the 2nd to 6th respondents had nocounter-affidavit and other processes in response to the application. It directed the 1st respondent’s counsel to move the application. After hearing the application, the trial court delivered its judgment wherein it dismissed the 1st respondent’s case.Dissatisfied, the 1st respondent appealed to the Court of Appeal. The Court of Appeal allowed the appeal and granted the reliefs sought but made a downward review of the financial reliefs.Aggrieved, the appellant appealed to the Supreme Court, which dismissed the appeal.

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JUDGMENT OF THE SUPREME COURT

1. The Prohibition of Arrest in Lieu:

By virtue of section 7 of the Administration of Criminal Justice Act, 2015, a person shall not be arrested in place of a suspect. The provision is to the effect that a person cannot be arrested for a crime suspected to have been committed by another person. Criminal responsibility is personal and not transferable. And nobody should be arrested in lieu of a suspect. There is no vicarious culpability in criminal offence and a person cannot be held responsible for the offence of a family member. In the instant case, since the appellant and the 2nd – 6th respondents failed to rebut the affidavit of the 1st respondent, the Court of Appeal was right to hold that section 7 of the Administration of Criminal Justice Act, 2015 was applicable to the facts and circumstances of the case. The finding of fact by the Court of Appeal could not be faulted having regard to the unchallenged evidence to the effect that the appellant was arrested and detained at the Delta State Police Headquarters on the instigation of the appellant because of an offence allegedly committed by his son. Furthermore, there was unchallenged affidavit evidence that the 2nd to 6th respondents harassed and threatened to arrest the appellant if he failed to produce his son and his photographs.

Per OGBUINYA, J.S.C. at pages 96-97, paras. E-C:

“It is gleanable from the record, the bedrock of the appeal, that on the instigation of the appellant, the first respondent was arrested and detained by the second – six respondents in lieu of his son, John Samuel Ita, who had a stillborn business transaction with the appellant. The concrete and classic evidence on record, the spinal cord of appeal, amply demonstrate that the first respondent was a stranger to that business transaction that was mired in the quicksand of fiasco. The doctrine of subrogation which flourishes in the sanctuary of civil law has no atom of shelter in sphere of criminal jurisprudence. Indisputably, the second – sixth respondents, on the prompting of the appellant, wrongly employed the doctrine against the first respondent. In the firmament of criminal law, criminal responsibility is personal to a particeps criminis. There is no transfer of criminal responsibility even in the presence of proven consanguinity between a culprit and an innocent. Indeed, vicarious liability has no legitimate residence in the expansive hemisphere of criminology. The provision of section 7 of the ACJA, an ambitious provision with a commendable mission to shield innocent citizens against unlawful arrest and incarceration by officers of law enforcement agencies, who act on the false information on commission of crimes fed on them by overzealous and pretentious complainants, concretises this hallowed principle of criminal law. Indubitably, the lower court’s decision, sought to be impugned, did not, in the least, disclose any ounce of hostility to the letters and spirit of the law as to magnet the reprobation of this court. Per contra, the lower court acted ex debito justitae when it nullified the decision of the trial court which was per incuriam par excellence. I accord it an unfiltered endorsement.”

2. The Duty of Court in Respect of Separation of Powers and Protection of Rights of Citizen:

The courts must never interfere in the exercise of executive powers, particularly in the mandate of the police to investigate crimes. However, the courts must endeavour always to balance the principles of separation of powers and the protection of the rights of the citizen against oppressive executive actions.

Per OGUNWUMIJU, J.S.C. at pages 92-93, paras. F-D:

“In the circumstances, I have to agree with the opinion of the court below as stated on pages 326 – 327 of the record of appeal that:

‘Now to the manner of complaints of these breaches, the appellant in paragraphs 9, 10, 11, 13, 14, 15, 16, 17, 19 & 24 of the affidavit at page 21 – 23 of the records are chronological narration of events and acts of harassment, intimidation, threats, embarrassed, harassment in church and actual arrest detention beyond 24 hours (4 days) without reason at Asaba and Benin City, twice with pressure to produce bank statements and BVN between 15th June and November 2021. It is important to note that there were no charges pressed against him except for him to produce his son or pay up the debt on the transaction, the matter was taken from Warri to Asaba and then to AIG, Benin, Zone 5. He denied consistently that he was not part of the transaction nor aware of the deposit made to his son… From the above, there were threats, actual detention beyond 24 or 48 hours even though both had a court within 5km radius, the 1st to 5th respondents refused to do the needful legally, they instead employed the tactics of intimidation, blackmail, breaches and directive to produce his son or pay the debts. Clearly, the allegation was that his son who did the transaction absconded and the father/applicant was responsible. The applicant’s freedom was unjustly withheld, his fundamental rights infringed upon.”’