Can the Police arrest and charge a suspect for Assault occasioning harm where the victim of crime fails or refuses to press criminal charges?
By Festus Osagie, Usiobaifo, KSM
The duty of the Nigerian Police Force in the administration of criminal justice is multifarious. The Police through the machinery of arrest and detention pending trial have ensured, in serious cases, that offenders are kept in safe custody and prevented from escaping the hands of justice, tampering with evidence, influencing investigation, intimidating, harassing, and preventing the victim of the offense from cooperating with police investigation and commiting further offense or offenses during investigation, or as the case maybe.
The recent arrest of Mr. Ebong Ekere by the Police over allegation of brutalizing his wife, Mrs Ekemini Ekere, a Pharmacist, has elicited mixed reactions amongst Nigerian lawyers. At present, there is no clear indication whether the victim in the disturbing video has made a formal report to the police. However, lawyers have taken to social media to express divergent views on whether the Police authority can legally arrest anybody alleged to have committed an offense even where there is no formal complaint from the victim of the alleged crime.
This article attempts to demystify the question of law trailing the viral video and the subsequent re-arrest of the suspect.
The power of the Police to arrest is deducible from the general duties of the police as elegantly embedded in Section 214 (2) (b) of the CFRN 1999 (as altered) & Section 4 of Nigeria Police Act, 2020.
In scrutinizing the exercise of their general duties, Nigerian courts have bluntly refused to fetter the powers of the Police to;
- Arrest (without a warrant) anyone they suspect has committed, is committing, or is about to commit an offence, and they reasonably believe that an arrest is necessary,
- Execute arrest with warrants issued by a Court of competent jurisdiction,
- Arrest any suspect alleged to have disobeyed an Order of Court,
- Arrest anyone suspected to have ‘breached the peace’ or is threatening to do so. See Igweokolo v. Akpoyibo & Ors (3),(2017) LPELR-41882(CA).
In unravelling the extant puzzle on whether the Police must await a formal complaint from the victim of the alleged crime before activating the process of arrest against the suspect, Mr. Ebong Ekere, it is necessary to consider the power of the Police outined in (1) above. The determining legal question is whether there is a reasonable and probable cause to arrest the suspect. Once there is a suspicion or probable causes, the requirement of a complaint or petition from the victim becomes otiose. In Olagunju v. State (2014) LPELR – 22097(CA), the court endorsed the right of the Police to arrest anyone even on mere suspicion.
In other words, an arrest can be made once there is a reasonable suspicion that someone has committed an offence. The term “Reasonable suspicion” was defined in Ubochi v. Ekpo (2014) LPELR-23523(CA), to mean the existence of facts or information which would satisfy a reasonable man that the person concerned may have committed the offence or likely to commit the offence.
It also follows that to arrive at the suspicion whether a person has committed an offense, is committing an offense, or is about to commit an offense anywhere in Nigeria, any oral evidence from an eyewitness, direct evidence such as video recording, documentary evidence and/or such other material evidence linking the suspect to the act will suffice to commence the process of an invitation, interrogation, arrest or detention of the suspect by the Police.
The above reasoning is underlined by the fact that Police officers are not robots that must always depend on the prompting of a victim or complainant to discharge their duties explicitly expressed in Section 4 of the Act. Police officers are not zombies that should subject the exercise of their discretion and powers to the whims and caprices of the victim of an alleged crime. Police officers are humans; they have brains and they can see. Their job is to detect and prevent crimes while protecting lives and properties. In cases where they detect and take steps towards redressing such crimes without formal petitions or complaints, they should be commended and encouraged.
As a matter of law, the act contained in the viral video constitutes a criminal allegation which is an offense against the State rather than an individual alone. The law even provides for the punishment of the victim who conceals or refuses to cooperate with the State in the prosecution of the offender. Sections 103 and 105 of the Criminal Law of Edo State provides for the offenses and punishment of perverting justice and compounding felonies.
In my opinion, the arrest of the lawyer alleged to have battered his wife, in the obvious absence of a petition from the said wife is commendable and appropriate. In any case, it is not only a victim that can incident a case before the police. As citizens, we have a responsibility to report to the Police where anyone is suspected to have committed an offense. Akanbi & Ors v. C.O.P Kwara State (2018) LPELR – 44049(CA).
Whilst the cooperation of the victim of crime is indispensable in securing conviction on certain crimes such as alleged in the horrendous video under reference, the opinion, concurrence or immediate cooperation of the victim is not required to at least arrest and interrogate the suspect for the crimes alleged in the viral video making the rounds on social media.
By virtue of the unambiguous provision of Section 172 of the Criminal Law of Edo State, 2022, it is an offense for anyone to assault another. Where the assault occasions harm, the offender commits a felony and is liable to imprisonment of 3 years. However, he may be discharged and acquitted by a Court of competent jurisdiction if he successfully raises the defence of provocation encapsulated in Sections 193 and 194 of the Law, provided that the force used is proportionate to the provocation, the act was not intended, and is not likely to cause death or grievous bodily harm. Section 421 of the said law defines grievous harm as any form of harm that amounts to a maim, endangers life, severely or permanently injures health, or results in permanent disfigurement or injury.
In conclusion, I wish to state that spousal battery is not a legal problem but a social one. Emphasis should be placed on what may have provoked the suspect to act in the manner he did, his usual temperament and the possible defences open to him. The fact that he is a lawyer admitted to the Nigerian Bar does not qualify him as a saint. The suspect is a human that also deserves fair hearing.
The Writer was the President and Founder of the Oasis of Light Magazine. He is the Editor-In-Chief of the Tabloid of the Dream Team, a popular Magazine published by the Nigerian Bar Association, Benin Branch, where he also serves as the Branch’s Publicity Secretary.
