investigation & pre-trial issues

For an arrest to be lawful when it is made it must be according to the clear dictates of the law. For such arrest to be seen to have been lawfully made and completed, the person need not to be handcuffed, bound or be subjected to any kind of physical restraint except there is reasonable apprehension of violence or an attempt to escape, or the restraint is considered necessary for the safety of the suspect or defendant, or by order of a court.

The police officer making the arrest must immediately inform the suspect of the reason for his arrest in the language he understands.

The police officer must also inform the suspect of his rights. SEE SECTIONS 5 AND 6 OF ACJA.

Any arrest by an officer of the law or private citizen that falls short of the provisions and procedure provided by the law will constitute an unlawful arrest. Akpan Vs. EFCC (2017) Helar; Muhammad Vs. IGP (2018) Helar

Only a Judge, a Magistrate, or a Justice of Peace can issue a warrant of arrest, which warrant must be signed by the issuing authority.

Bail is the procedure by which a person arrested for an offence or standing trial is temporarily released from custody, on security and the promise being taken for his appearance on a day and place certain whenever he is called upon or needed to appear. A person can be released on self-recognizance on a bond or by a surety standing for him. A security such as cash or a bond especially required by a court for the release of a prisoner who must appear in court at a future time. BLACK’S LAW DICTIONARY (9TH EDITION) EDITED BY BRYAN A. GARNER & ORS

No, when the offence is not a serious offence, where the Defendant is present in court and the prosecution is likely to not oppose the Application. The Application can be made orally. This practice is usually applicable at the Magistrate Court.

Ordinarily, the answer is No, as that is the first call of the law. But, Yes, a Defendant charged with a capital offence can be granted bail BUT only by a Judge of the High Court and it has to be under certain exceptional circumstances which include. i. On issue of ill-health confirmed by a doctor of a government hospital, and also, it would need to be established that the there are no adequate facilities in the prison or detention facility for persons with such ailment to be properly treated and medically managed. ii. Extra-ordinary delay in the investigation, arrangement and persecution of the Defendant’s case for period exceeding one year. iii. Any other circumstances that the judge may consider exceptional. Section 161(1)(2)(a)(b)(c) ACJA,2015; Meregini Vs. FRN (2018) Helar

This is when a person being arrested tries to stop the officer from apprehending, seizing, restraining or confining him or tries to escape from the custody of those so confining him. When a person refuses to come to the police station when invited, he cannot be said to be guilty of resisting arrest. This is because there was no physical apprehension, seizing, restraining or confining of his person in the first place. SADIQ VS. STATE (1982) 2NCR 142.

An arrest must be by warrant only when the law creating the offence provided that the person cannot be arrested without a warrant.

No. No person shall not be arrested in place of a suspect. Section 7 of ACJA.

The Police officer shall re-arrest the suspect or where he sees that he is innocent, release him immediately. Where a police officer re-arrests the suspect handed over to him by a private citizen, he shall take down the particulars of the private person who did the arrest and make entries in the crime diary. SECTION 23 (2)(3)(4) ACJA, 2015

The issue or matter of Bail can come up and granted at three (3) distinct stages in the course of an accused investigation and trial. The first is at the police station where, on application, the Investigating Police Officer and his commanding superior admit a suspect to bail pending further investigation of the allegations. This is called Police Bail. The second stage of granting of bail is after the suspect has been charged to court. The trial court may grant the suspect bail pending the trial and determination of the case. This is known as Court Bail. The third stage at which a person may be admitted to bail is after the person has been convicted at the trial. If he files an appeal against his conviction, he might apply for bail pending outcome of his appeal. This is referred to as Bail Pending Appeal.

Yes, as explained immediately above. A suspect has a right to bail at the police station where the police are not ready to take him to court within 24 hrs. If there is a court within 40 km or 48hrs where the courts are located at a further distance. SECTION 35(5)(A)(B) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999.

It means that the bail sum is one million naira. It does not mean that you will pay or deposit that sum of money with the court. But the surety must swear to an affidavit that he has the cash in a bank account or that he has a property worth that amount or more and will forfeit money of that same amount if the suspect or the person bailed by you jump bail.

When a defendant jumps bail, the Prosecution shall immediately apply for a bench warrant to be issued to re arrest the Defendant and the Surety to come and show cause. Where the surety fails to produce the principal party (defendant) he would be charged before the court to show why he should not be committed to prison. Or he may forfeit the bail sum to the state. Section 184 ACJA, 2015. FRN Vs. Maishanu (2019) Helar

Arrest is said to have been done or effected when a person is apprehended, seized or restrained usually by force, for the purpose of administration of law or the execution of a court order. In making an arrest, the police officer or other persons making the arrest shall actually touch or confine the body of the suspect. The act of touching and confining the person by force may not be necessary where the suspect willingly submits himself to custody by word or action. See Section 4 of the Administration of Criminal Justice Act (ACJA). From the above, it can be appreciated that mere words like “you are under arrest” without more, would not constitute an arrest.

Upon arrest, the suspect has the following right: a) Right to dignity of his person, that is he must not be unnecessary restrained or manhandled. b) Right to know what offence he is being arrested for c) Right to counsel. He has a right to request for his counsel to be present before making any statement to the police officer The right to be brought to court. Section 6 (1) and (2) of ACJA; section 35 (4) CFRN 1999 as amended. SCC Nig. Ltd Vs. David George & Anor (2019) Helar

A warrant of arrest can be executed anywhere and at any time including a Sunday and public holiday except in a court while court is sitting or in a legislative house while the house is in session. Section 43 ACJA

A search is an examination, medically but mostly physically, of a person’s body, his vehicle, house or office premises, aircraft or anything that he has control or possession of with a view to discovering any contraband, illicit or stolen property, or some other evidence that may point to his guilt in his criminal prosecution of a criminal action of which he is being suspected or prosecuted for. See Section 107 of CPA and 74 of CPC. There are similar provisions in the ACJA or ACJLs of the various States.

You can ask your lawyer to file an application for the enforcement of your fundamental right at the High court.

No, not all offences are bailable. Capital offences (offences punishable with death sentence) are ordinarily not bailable but the suspect may only be admitted to bail by a Judge of the High Court, under exceptional circumstances.

Exceptional circumstance include: i. Ill health of the applicant which shall be confirmed and certified by a qualified medical practitioner employed in a government hospital, provided that the suspect is able to prove that there are no medical facilities to take care of his illness by the authority detaining him; ii. Extraordinary delay in the investigation, arraignment and prosecution for a period exceeding one year; or iii. Any other circumstances that the Judge may, in the particular facts of the case, consider exceptional - Section 161(1)(2)(a)(b) & (c) ACJA, 2015. Meregini Vs. FRN (2018) Helar

A person is said to have jumped bail when the person who is either on Police or Court bail fails report to the police on a day appointed for him to do so or to appear in court on a date his presence is required without any good reason. Section 184 ACJA, 2015; FRN Vs. Maishanu (2019) Helar

When a person jumps bail, a bench warrant, on the application of the prosecution, would be issued for him to be re-arrested and brought to court. Pressure would be brought on the person or persons who stood as his surety to produce him, failing which he/they will forfeit the bail bond, and could risk other consequences if it is established that they connived with the suspect in his jumping of bail. Section 184 ACJA, 2015; FRN Vs. Maishanu (2019) Helar

When a person jumps bail, a bench warrant, on the application of the prosecution, would be issued for him to be re-arrested and brought to court. Pressure would be brought on the person or persons who stood as his surety to produce him, failing which he/they will forfeit the bail bond, and could risk other consequences if it is established that they connived with the suspect in his jumping of bail. Section 184 ACJA, 2015; FRN Vs. Maishanu (2019) Helar

No. In practice, where there is more than one defendant in a criminal charge, their bail applications must be brought individually and each treated on its own merit. See AFIGBU V. COMMISSIONER OF POLICE (1975) NNK 128.

There are several kinds of offences and circumstances in which a police officer can arrest a person whom he suspects, on reasonable grounds; (1) of having committed an indictable offence, (2) a person who commits an offence in his presence, (3) a person who obstructs a police officer while executing his duty, (4) a person escaping from lawful custody, (5) a person who has in his possession an item suspected to be stolen, (6) a deserter from any of the armed forces, (7) a person who has implement of house breaking, (8) any person he reasonably believes a warrant for his arrest has been issued, (9) a wandering person who cannot give a satisfactory account of himself, (10) any person found in Nigeria trying to conceal his presence, (11) a person planning to commit an offence, (12) a person whom a public summon has been issued against. Sections 21 of CPA and 18(1) ACJA; Section 24 of the Police Act Cap.P19 Laws of the Federation of Nigeria, 2004.

Yes, an individual can arrest a person in the following circumstances 1. When a person in his view commits an indictable offence. 2. When he reasonably suspects a person to have committed a felony. 3. When he suspects a person to have committed a misdemeanour by night. 4. Any person is directed to arrest by a Justice of Peace (JP) or Superior Police Officer (S.P.O) 5. Any person who has escaped from lawful custody 6. Any person required to appear by a public summons 7. Any person committing in his presence an offence for which the police are authorized to arrest without a warrant. 8. A person he finds damaging a public property 9. When a defendant whom he is acting as a bond person tries to abscond or tries to evade appearance in court. Section 28 CPC. Sections 20, 22 ACJA; Abdullah v. Borno N.A (19A. 63) 2NSCC 132 Also, a private person can arrest a suspect either personally or through his servants, where the suspect is found committing an offence which relates to injury to property. Section 21 of ACJA.

No, it does not affect the validity of a trial. The manner of his arrest is an entirely different matter. As a defendant, he will only have a valid case of breach of fundamental rights and damages when he is in fact innocent. Section 136, 140(3) ACJA; Section 101 CPA, Section 382 CPC; Okotie V. C.O.P. (1959) 4 FSC 125.

Yes, but only with a warrant of arrest. It is only a person committing a misdemeanour by night that can be arrested at night without a warrant.

When you arrest a suspect as a private person, you shall immediately hand him over to a police officer if one is present or take him to the nearest police station if no police officer is present. SECTION 23(1) ACJA, 2015

A search may be carried out on any person or his property with or without a Court Order Warrant any time of any day except there is a limitation according to the direction of a Magistrate who issued the Search Warrant, where it is one backed by a Magistrate Order of Warrant.

In Lagos State, for example, Section 108 of Lagos State ACJL limits the period of Search to 5am – 8pm except the issuing court in its discretion directs otherwise. A search Warrant once issued remains valid until executed or cancelled by the issuing authority - Section 109(2) of CPA. Only a woman officer is authorized to search a fellow woman, and same must be decently done - Section 6(2) of CPA. By Section 4(2) of Lagos State ACJL the need for decency obtains regardless of whether the person being searched is a man or woman.

The refusal of your bail application at the Magistrates’ Court need not be the end of your effort. You can ask your lawyer to file an application for bail at the High Court.

Yes, a woman can stand as surety for an accused person. Section 167 (3) ACJA. All the reported cases of the Police refusing to allow a woman to stand as surety for an arrested suspect are unlawful and unconstitutional discriminatory cases.

Firstly, a person is said to be granted bail on self-recognizance where the person is allowed to stand as his own surety, no other person being required to stand surety for him. This privilege is only extended to persons who are well-known personalities in the society; so well known that it is believed that they would have no place to hide; that their standing in society is such that they are seen to have enough personal integrity that they would not want not to jump bail. So they are granted bail on self-recognizance.

Yes, if a person has been tried and convicted and he appeals against his conviction at the Court of Appeal, he has a right to bail pending the determination of his appeal. SECTION 28(1) OF THE COURT OF APPEAL ACT CAP C36 LFN, 2004. Meregini Vs. FRN (2018) Helar

Bail pending appeal is usually by a Motion of Notice. It would be first brought and treated by the trial court. If it is refused, the fellow can then also bring same application before the Court of Appeal.