NSCDC LACKS POWERS TO ARREST, DETAIN, PROSECUTE SUSPECTS ON ALLEGED BREACH OF PENAL LAW OF A STATE GOVERNMENT AND ALSO LACKS POWERS TO ARREST AND DETAIN CITIZENS OVER BREACH OF TRUST OR CIVIL CLAIMS IN NIGERIA

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THE NIGERIA SECURITY AND CIVIL DEFENSE CORPS (NSCDC) LACKS POWERS TO ARREST, DETAIN AND PROSECUTE SUSPECTS ON ALLEGATIONS OF BREACH OF PENAL LAW OF A STATE GOVERNMENT AND ALSO LACKS POWERS TO ARREST AND DETAIN CITIZENS OVER BREACH OF TRUST OR CIVIL CLAIMS IN NIGERIA.

By: Hamza Nuhu Dantani Esq.

There have been some issues arising from the powers of some officers of the Nigeria Security and Civil Defence Corps who arrest, detain and prosecute suspects on allegations of breach of Penal Code Law of a State (especially, prevalent in some of the Northern-States of Nigeria) and some of these officers of the said Civil Defence Corps have many a time, been reported to have been found arresting and detaining citizens in those States for alleged offence of breach of trust or civil claims in Nigeria. The question this paper aims at answering is whether the Nigeria Security and Civil Defence Corps actually have such powers to arrest, detain and prosecute suspects on allegations of breach of penal law of a state government and its powers to arrest and detain citizens over breach of trust or civil claims in Nigeria? Hence, this topic.
First and foremost, it must be emphasized that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the supreme law of Nigeria through which the various organs and levels of Government derive the source of their powers and any variation from the Constitution is very unlawful, null and void. On this position, Ngwuta JSC has this to say ‘I wish to emphasise that the Constitution of the Federation, 1999 as variously amended, is the yardstick for determining the validity vel non of any act or decision in relation to any law in the country. Any derogation from one section is not only extraneous to the Constitution but a violation of the solemn oath undertaken by all Judges to defend and protect it’. See: Oni v Fayemi (2013) 12 NWLR (part 1369) 431 SC.
Worthy of note is that the powers of the National Assembly to make laws is exclusive on matters on the Exclusive List in the Constitution. This is because, the matters of crimes are generally in the Residual Legislative List of the Constitution which only the State House of Assembly of the Federation has powers to legislate on. On the ambit of the legislative powers of the National Assembly and the House of Assembly of a State, the Supreme Court in the case of A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC. Held thus: ‘Section 4 of the Constitution of the Federal Republic of Nigeria, 1999, divides legislative powers between the National Assembly for the Federation and the House of Assembly for the State in the exclusive and concurrent legislative list. The National Assembly has exclusive power to legislate for the Federal Republic or any part thereof in respect of matters in the exclusive list. The National Assembly also has power to legislate, though not exclusively, on matters in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the Constitution and on any other matter with respect to which it is empowered to make laws. The House of Assembly of a State has power to make laws for the State or any part thereof on any matter not included in the exclusive legislative list, on any matter in the concurrent legislative list and on any other matter for which it is empowered to make laws. The House of Assembly of a State also has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists’. (Underlining is mine for emphasis). A voyage of discovery on the Exclusive and the Concurrent Legislative Lists of the Constitution confirms that the matter of crime is not on those lists explicitly. The House of Assembly of a State also therefore has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists. Furthermore, Item 68 of the Second Schedule, Part I, of the Constitution, which is the Exclusive Legislative list, provides that the National Assembly has power on ‘Any matter incidental and supplementary to any matter mentioned elsewhere in this list’. The Part II of the Second Schedule of the Constitution provides for Supplemental and Interpretation and it provides that ‘In this Schedule, references to incidental and supplementary matters include, without prejudice to their generality, references to-(a) offences;… Also see: section 10(2) of the Interpretation Act, CAP.123, LFN, 2010, which provides that ‘ An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it’. In my humble view and submission, the National Assembly’s power to make certain acts as offences will only relate to those items in the exclusive legislative See: Oni v Fayemi (supra).
Also, exclusive jurisdiction has been conferred on the Federal High Court of Nigeria in respect of any of the offences relating to or incidental to items listed under the said section created under the section 251 (3) of the Constitution and section 3 of the Federal High Court Act, CAP F12, LFN, 2004. However, the jurisdiction in respect of any incidental offence in respect of items in the concurrent legislative list of the Constitution would then be conferred on the Federal High Court (considering the provisions of section 252(2) of the Constitution which provides thus (2) Notwithstanding subsection (1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court more effectively to exercise its jurisdiction.’. Also see the case of: A.G. Ondo State v A.G. Federation and 36 others (2002) 9 NWLR (pt . 772) 222, (2002) 6 S.C. (Pt. 1) 1.) and a High Court of a State (inclusive of those inferior courts established pursuant to the State’s Law(s)) subject to the respective Federal Legislation and the State Legislations on the said items on the concurrent legislative list (i.e. the State shall not legislate on any concurrent item, the subject matter of a Federal Legislation by virtue of section 4(5) of the Constitution which provides thus ‘(5) If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.’, which is the doctrine of covering the field.). Nevertheless, and for the sake of emphasis, I humbly submit that the jurisdiction conferred on the Federal High Court and the powers of the National Assembly to make laws in criminalizing an act are subject to the provisions of the Constitution in section 4, which provides thus ‘4.—(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives. (2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution. (3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States. (4) In addition and without prejudice to the powers conferred by subsection (2) of this Section, the National Assembly shall have power to make laws with respect to the following matters, that is to say— (a) any matter in the Concurrent Legislative List set out in the first Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the Second Column opposite thereto ; and (b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution’. Therefore, the issue of covering the field of the Federal Powers upon the States’ Power as provided in section 4(5) of the Constitution does not arise. Therefore, any matter in the residual list confers exclusive powers on the House of Assembly of the States of the Federation to legislate on. See: section: 4 (7) (a) of the Constitution which among other powers, provides thus ‘(7) The House of Assembly of a State shall have power to make Laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say— (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution;…’. Also see: A.G. Federation v A.G. Lagos State (supra). However, it is my submission that the position and status of the Federal Capital Territory –herein after referred to as FCT- is that the Residual Legislative List or power is applicable and exercisable by the National Assembly as if it were to be a State of the Federation. And it is generally submitted that the status of the FCT in relation to the Concurrent Legislative List is that the National Assembly makes laws for FCT on the matters on the Concurrent Legislative List and those matters on the Residual Legislative List as if it were to be a State of the Federation. So, such legislation even though it is an Act of the National Assembly, does not have a general application as though, it is a Federal Legislation. The purport of this submission is that the Penal Code Law of a State remains exclusively a State-made Law or Legislation enforceable by the said State Government and or the Nigeria Police Force within its general powers. See: Section 214 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); and section 4 of the Nigeria Police Act, 2020.
Now, section 1 of the Nigeria Security and Civil Defence Corps (Amendment) Act, 2007, has already provided for the powers of the Nigeria Security and Civil Defence Corps-herein after referred to as the NSCDC. Hence, the NSCDC cannot go outside the powers conferred on the Corps to enforce State Laws. What should be critically considered is whether the Act or Law that establishes the NSCDC actually conferred the power(s) that it performs or not? Then, if there is no such powers conferred on it, then, it would have acted ultra vires its powers and hence, would have acted unlawfully and illegally usurping the powers of the State Government as a Federal Government Agency. To this end, a close study of the section 1 of the Nigeria Security and Civil Defence Corps (Amendment) Act, 2007, herein after referred to as the Amendment Act, shows clearly that the NSCDC has not been empowered by its establishment Act to arrest, detain and or prosecute State Penal Code Law or any of the offences therein provided. Such general powers over State Government Penal Code Laws are within the general powers of the Nigeria Police Force. Nevertheless, by section 1(1)(a) of the Amendment Act, the NSCDC may assist in the maintenance of peace and order and in the protection and rescuing of civil population during the period of emergency and other powers were also conferred where the NSCDC may exercise powers by virtue of section 1 of the Amendment Act but definitely not in regard to the enforcement of Laws established by the State Government under its Residual Legislative List, as crimes or offences are generally on the Residual Legislative List, as I have stated earlier in this paper.
Furthermore, on the powers of the NSCDC to arrest on breach of trust or settle civil claims or civil contract. Section 1(1)(u)(vi) of the Amendment Act provides thus
‘have power to arrange and mediate in the settlement of disputes among willing members of the public’.
Apart from the above, there is no where in the Act establishing the NSCDC where the Corps has been empowered to enforce civil claim rather, the establishing Act only provides that the Corps has the power to arrange and mediate in the settlement of disputes among willing members of the public. To this extent, what the Corps ought to be doing or do is to invite the disputing members of the public and encourage them to settle by mediating on their civil disputes if those persons are willing (conditional). However, where any of such disputing parties refuses to corporate or honour the invitation by the Corps, then, the Corps has no powers by law to arrest or detain him for such disobedience and or noncooperation. The Claimant or claiming party should rather be advised to approach a court of law for civil claim. The court has already held that the police (just like the NSCDC in this instance) has no business with enforcing civil claim or civil contract. The following cases would guide:
A. ANUBALU v. STATE (2019) LPELR-48088(CA)
“The duty of the Police as spelt out in Section 4 of the Police Act include prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged. I have scrutinized the provisions of the Section 4 of the Police Act and I am unable to decipher any provision empowering the Police to enforce contract or meddle into purely civil transactions between parties. The interference of the Police in purely civil matters is an abuse of the statutory powers of the Nigerian Police. I am not oblivious to the fact that the Police receive countless petitions daily alleging one crime or the other, however the Police is not a robot incapable of methodically sieving through the Petitions to determine if there is criminal element or not in each of the Petition before acting on same. It does not augur well for the society if the Police upon the instigation of a complainant acts outside its statutory defined functions by interfering in simple civil transactions between citizens. Simply put, it is neither the duty nor the power of the Police to serve as agents of any person, be it an individual or a corporate citizen or even agents of Government at either the Federal or State or Local Government level, to enforce commercial disputes, under any guise or pretext of investigating a crime in a purely civil dispute without any element of criminality. See Section 8(2) of the Administration of Criminal Justice Act 2015, wherein it is provided thus: “A suspect shall not be arrested merely for a civil wrong or breach of contract. This prevalent attitude of involving the Police in a purely civil transaction under the guise of commission of a crime has received scathing deprecations by the Supreme Court in a multitude of cases. In the case of DIAMOND BANK PLC v. H.R.H. EZE (DR) PETER OPARA Per ABUBAKAR SADIQ UMAR, JCA (Pp 45 – 49 Paras C – C).’.

B. OKAFOR & ANOR v. AIG POLICE ZONE II ONIKAN & ORS (2019) LPELR-46505(CA)
“Not in dispute from the facts of this case as shown in the record of appeal is that the 1st Appellant who is alter ego of the 2nd Appellant was arrested and detained by the 1st-3rd Respondents between 19th October and 21st October 2015. This is obviously beyond 24 hours. Also not in dispute is that the matter that initiated this problem is from a loan secured by the 2nd Appellant from the 5th Respondent. The Appellants are saying that the arrest is predicated on a civil matter of a simple loan transaction. If it is so, I agree absolutely with the Appellants that the police have no right or duty to be involved in such matters. In AIGP & Ors vs. Gombe (2016) LPELR-40816 (CA), this Court per Georgewill, JCA at pages 30-32 held: “The powers of the Police going by the combined effect of the succinct provisions of Section 214 of the Constitution of Nigeria 1999 as amended and Section 4 of the Police Act 2004 and all other laws enabling the Police to act, are indeed very enormous but yet not left at large and in my view does not cover intermeddling or interfering with the judicial powers of a Court of law. The obvious and undisputed facts of this appeal show clearly that the Appellants, in exercising powers they do not possess by seizing goods lawfully auctioned on the orders of a Court of law pursuant to the execution of its judgment, acted without authority and in impunity. In law, any action founded on impunity and thus in disregard of due process of law must be cut down to size and deprecated by the Court in matters before it. This was what the Court below, in my finding, rightly did loud and clears in entering judgment against the Appellants by cutting the impunity of the Appellants to size. See Military Governor of Lagos State vs. Ojukwu (1986) 1 NWLR (Pt. 18) 621. See also Vaswani Trading Co. vs. Savalakh & Co. (1972) 1 All NLR (Pt. 1) 483; Ojukwu vs. Military Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806; Daniel vs. Ferguson (1891) 2 Ch.D 27; Agbor vs. Metropolitan Police Commissioner (1969) 1 WLR 703. My Lords, I feel constrained to observe that the culture of impunity, as displayed by the Appellants, merely because they are Police Authority but, without any lawful authority and at the instance of a party aggrieved with the judgment and orders of a Court of law and in total disregard of the due process of law and leading to the seizure of goods lawfully auctioned on the orders of a Court of law pursuant to the due enforcement of its judgment, like many other acts of impunity in the land by those in and or out of authority have been tolerated for far too long in this country and has indeed run its full circle and must be stopped and cut to size as rightly did by the Court below and I unhesistantly commend the Court below for so doing.” Similarly in Abah vs. UBN Plc. & Ors (2015) LPELR-24758 (CA) Mbaba, JCA at pages 97-99 held: “We have stated, repeatedly, that the police (or any Law Enforcement Agency, for that matter, including the Economic and Financial Crimes Commissions (EFCC) is not allowed to dabble into enforcement of civil contracts and agreements, or to engage in recovery of debts, under the pretext of doing lawful duties.” See the case of Oceanic Securities International Ltd vs. Balogun & Ors (2013) ALL FWLR (pt.677)653; (2012) LPELR 9218 CA; where it was held: “Appellant could not therefore hide under the cover of reporting the 1st Respondent for issuance of dishonoured cheques, to subject him to the ordeal of arrest and detention… and escape the wrath of the law. He was pursuing the recovery of the alleged debt and resorted to the use of the Police…” In Ibiyeye & Anor vs. Gold & Ors. (2012) ALL FWLR (Pt. 659) 1074, this Court also held: “…The resort to the police by parties for recovery of debts, outstanding under contractual relationship, has been repeatedly deprecated by the Courts. The Police have also been condemned, and rebuked, several times, for abandoning its primary duties of crime detection, prevention and control, to dabbling in enforcement or settlement of debts and contracts between quarreling parties, and for using its coercive powers to breach citizen’s rights and/or promote illegalities and oppression.” See also Chief (Hon) James Clement M. Ohanedum and Anor. vs. Commissioner of Police & Ors CA/OW/175/11 , delivered by this Court on 23/1/15. I believe the above can also be said of the E.F.C.C. (also Law Enforcement Agency) which, rather than advising 1st Respondent to use legal means to recover the alleged debt, allowed its coercive powers to be used by the 1st Respondent to harass, intimidate and brutalize the Appellant, his wife, children and workers in a purely business transaction, legitimately entered into in a banker/customer relationship. By so doing, Appellant’s fundamental rights were violated and the trial Court was wrong to justify the breaches. In that case of Chief James Clement M. Ohanedum & Anor. vs. C.O.P & Ors. (supra), we held that: “The Court has a duty to protect the fundamental rights of citizens and must not permit any violation for whatever reason, unless as stipulated in the law.” See Enukeme vs. Mazi (2014) LPELR – 23540 (CA).” The lower Court held that much when in page 116 it held that the transaction is based on civil matter and therefore the police should not have been involved. The lower Court went further to say that even the 4th & 5th Respondents knew that the transaction was a civil matter. The challenge with the finding of the lower Court is that with respect, is a bit inconsistent with the conclusion reached. If the 4th & 5th Respondents knew that the matter they were reporting to the police is a pure civil matter, it is therefore inconsistent to hold that they are not liable for a breach of the Fundamental Right of the Appellant arising from the case they reported. This is because the report would amount a report to be done in bad faith and consequent upon that, the 4th & 5th Respondents should have part of the liability. I agree however with the legal position stated by the 4th & 5th Respondents’ counsel that a party who barely or merely reports a crime cannot be held responsible for what the police does with the report but the point must be made that such a report must be done in good faith and the involvement of the party reporting the matter must not go beyond that. In Orkater vs. Ekpo & Ors (2014) LPELR-23525 (CA) this Court per Otisi, JCA at page 30 held: “It must be emphasized that the Appellant was certainly acting within his rights in taking his complaint to the police. In Fajemirokun vs. Commercial Bank Nig. Ltd LPELR [2009] SC. 336/2002, the Supreme Court, per Ogebe, JSC, said: “Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done malafide.” In concurring with the lead Judgment, A. M. Mukthar, JSC (now CJN) said: “…I have said earlier on the respondents were exercising their legal rights to seek the police intervention. Indeed no one can deprive any citizen of that right more so when there was good ground for the action taken by the police, as it was not as a result of mere suspicion…” See also: Owomero vs. Flour Mills (Nig.) Ltd (1995) 9 NWLR (Pt.421) 622 at 629, Ezeadukwa vs. Maduka (1997) 8 NWLR (Pt. 518) 635 at 667. It is for the police to investigate a complaint laid before them, and upon investigation, to take appropriate action.” If a party assists the police to get the person arrested, and if such arrest amount to a breach of fundamental right, the person who assisted the police will be as liable as the police. This is because in such a situation, the person plays an active part towards the arrest. It is the law that if the report made to the police is made malafide, it takes the report from the angle of an innocent person to that of an interested party who wants to undo or oppress the other person. In such a situation, the law will come in aid of the oppressed. See Maduka vs. Ubah & Ors (2014) LPELR-23966 (CA). The police station is not a place for arbitration. It is not a place for civil matters. The police force should not reduce itself to a debt recovery agent. This is clearly not the duty of the police has shown in Section 4 of the Police Act which states the functions of the police which is to maintain law and order in the society. In doing this, the police can by investigate and prosecute offenders of crime. The police should not to be used to settle scores or to be used by the mighty to oppress the small. It is not an agent of vendetta. A professional police force will guard jealously its function in society and never allow anyone to debase or erode its Constitutional function. Even if a citizen decides out of ignorance or wickedness to take a civil matter to the police, the police has the duty as observed by the lower Court to direct the person to the appropriate place been a Court with civil jurisdiction. A police officer who decides to engage in debt recovery or deal with civil matters reported to it is acting completely outsides its jurisdiction and exposing himself to unpleasant comments and litigation. I make bold to say, he is not deserving of the uniform he is wearing. Going outside the duty of the police will amount to arrogating itself powers that it does not have. It is direct confrontation with the judicial power donated to the Court by the Constitution for the police to handle civil matters. No organ of government or agency of government is allowed to usurp the powers donated to another. There must be mutual respect for each organ or agency of government. I am firm in my believe that cases of abuse or breach of fundamental right will be greatly reduced if the police act professionally. It is true that once a citizen reports a matter to the police, the rest is left to the police. The decision to arrest or detain is squarely on the shoulders of the police and not the individual. The individual will surely not be responsible for the decision of the police, however when a citizen reports a matter which he knows or ought to know that the police has no power to handle being a civil matter, consequent upon which the police makes arrest which breach the fundamental right of another person, the person who reports the matter will be liable, as such a report, is said to be done mala fide, that is in bad faith. ?However, if a civil matter has some criminal connotation, that is to say it is not purely a civil matter; a citizen can report that criminal content. The police is meant to hear complains on criminal matters and then proceed to investigate professionally and if need be proceed to arrest and detain but this must be done within constitutional limit to bring the suspect to Court. If after reporting a criminal matter the police in exercise of their duty of investigation go beyond the constitutionally acceptable limits, the police will answer for it and not the person who made the report. No citizen no matter how highly place should dictate to the police on how to go about their duty of investigation, who to arrest, when to arrest and when to release a suspect. The police should be guarded by the constitutional provision. The issue here is, whether what is before the police was a civil matter or a criminal matter. Putting it more specifically in relation to this case, what case did the 4th & 5th Respondents report to the 1st-3rd Respondents? If it is the case of recovery of the debt owed the 5th Respondent, the 4th & 5th Respondents will be liable for the violation of the Fundamental Right of the Appellants. This is because it will amount to a report in bad faith. That appears to be the case the Appellants is putting forward. The 4th & 5th Respondents on the other hand are saying that the case they reported to the police is threat to life and not the civil matter of loan recovery. If the record of appeal discloses the fact as shown by the 4th & 5th Respondents, the decision of the lower Court will be upheld as it relates to the 4th & 5th Respondents. If on the other hand, the Appellants are right, the 4th & 5th Respondents will be held liable and this appeal will succeed. In this respect, we will have to look at the record of appeal which contains the counter affidavit of the 4th & 5th Respondent. In paragraph 26 of the 4th & 5th Respondents counter affidavit in page 62 of the record they averred that they reported a case of threat to life to the police and it is that petition that the police while investigating that led to the arrest and detention of the 1st Appellant. The paragraph state thus: “That I did not instigate the police to arrest the 1st Applicant or anyone. I only lodged a petition to the police based on the 1st Applicant’s threat to my life following the sale of the pledged shops used as security for the facility granted to the Applicants and nothing more.” Though the 1st-3rd Respondents did not file any process to confirm that, if this is true that puts an end to the agitation of the Appellants against the 4th & 5th Respondents. The lower Court in its decision seems to be salient on this point. The premise upon which the lower Court held that the 4th & 5th Respondents cannot be liable is that all they did was to report the matter and they did not instigate and could not have instigated the 1st-3rd Respondents. I will now look at the affidavit evidence to know what is the base of this finding in page 116 of the record. If there is nothing to support the finding, I am under obligation in the interest of justice to interfere with the finding. See Alhaji Jimoh Ajagbe vs. Layiwola Idowu NSCQR Vol. 46 2011 page 846; Momoh & Ors vs. Umoru & Ors NSCQR Vol. 46 2011 page 292 The 4th & 5th Respondents in paragraph 26 of the counter affidavit contained in page 62 of the record cited above has said they did not instigate the arrest of the 1st Appellant. To them, the arrest of the 1st Appellant is based on the petition they wrote for threat to life. The 1st-3rd Respondents did not file any process and therefore there was nothing from the 1st-3rd Respondents to confirm the averment in paragraph 26 of the counter affidavit. The 4th & 5th Respondents that made that assertion have a duty in law to prove it. This is a settled legal principle. See Akinbade & Anor vs. Babatunde & Ors (2017) LPELR- 43463 (SC); Dasuki vs. FRN & Ors (2018) LPELR-43897 (SC); Akerele vs. Atunrase & Ors (1969) 1 ANLR 195. The 4th & 5th Respondent.