TheCable

By Somadina Ibe-Ojiludu

Mr Joe Fortemose Chinakwe was released a few days ago after his imprisonment by the police.   His ‘crime’ was that he named his dog ‘Buhari’.  Whereas Mr Chinakwe claims that he so acted because President Buhari, ‘is his hero’, his neighbour rather held that Mr Chinakwe’s dog was named after his father, Alhaji Buhari.  As reported by the Vanguard Newspaper, the Ogun State Police command through its public relations officer, Abimbola Oyeyemi, believed that Mr Chinakwe’s conduct was likely to cause a breach of peace because an average northerner would ‘feel bad over such a thing’.  Mr Chinakwe was released, according to the same newspaper, after the intervention of both the Serkin Hausa and the President-General of non-indigenes in Ogun State.

It is clear that the conduct of the police in the above is constitutionally reprehensible.    It is sufficient to recall section 36 (12) of the 1999 Constitution of the Federal Republic of Nigeria (hereafter, 1999 Constitution).  The section provides that there can never be a conviction for a criminal offence unless that offence is defined and the penalty prescribed in a written law.  I do not support in any way the denigration of the person of President Buhari.  He deserves some respect.  But giving a dog a human name is not a known criminal offence defined in any written law in Nigeria.  Consequently, there is no written prescribed penalty for giving a dog a human name.  The Ogun State Police command, therefore, has ‘enacted’ the crime of giving a dog a human name.  And by so doing it has ‘usurped’ the function of the legislature.

Furthermore, allowing the police to get away with the arrest of Mr Chinakwe on the ground of an act ‘likely to cause a breach of peace’ is to set a dangerous precedent which will clip our God-given freedom.  This is because it will give the police a wide elasticity to decide what is an act likely to cause a breach of peace and what is not.  For example, my choice of what I eat in a particular locality may be characterised by the police as ‘likely to cause a breach of peace’ if tabooed by many in my neighbourhood.  Also, I may be barred by the police from practising my religion or holding a certain ideological position because it is offensive to certain people and thus ‘likely to cause a breach of peace’.  One can reason out other examples.

Moreover, further violence is done to the above-cited section 36 (12) of the 1999 Constitution if the police is allowed to determine what constitutes an act ‘likely to cause a breach of peace’ – no matter the statutory instrument they intend to rely upon.  Such an allowance confers on the police what they are not capable of doing: exercising legislative function.  Section 4 of the 1999 Constitution clearly states that legislative powers are ordinarily vested in the National Assembly and State Houses of Assembly.  It is therefore unconstitutional for the police to determine what is ‘likely to cause a breach of peace’.  Only the National Assembly or a state House of Assembly possesses such power.

Since the Ogun State Police Command constitutionally goofed when they arrested Mr Chinakwe, such an arrest can constitute false imprisonment.  The tort of false imprisonment, according to Augie, J. C. A in Clifford Okeke v Lucy Igboeri (2010) LPELR-4712(CA) ‘is the restraining or detaining of a person, if the person doing or causing the imprisonment has no right in law to imprison that other’.  The police have no right in law to imprison the other who decides to give his/her dog a human name.  To do otherwise is to engage in the tort of false imprisonment.  And the victim so trespassed is entitled to sue the police for damages.

The police might invoke some defence by claiming that they did not set the law in motion against Mr Chinakwe.  The Vanguard Newspaper reported that Mr Chinakwe was arrested by the police based on a complaint by his neighbour.  Nzeako, J. C. A had reasoned in Afribank Nigeria PLC v Sylvester Onyima & Anor (2003) LPELR-5207(CA) that ‘one of the well known principles is that in order to succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him’.  But as seen in the above-cited Court of Appeal case and a plethora of other cases, the law is set in motion against the plaintiff only when the police is acting on a report relating to a criminal offence.  And there is a criminal offence only when there is a violation of a law.  And a law is constitutionally a law only when it emanates from the National Assembly or a state House of Assembly.  Thus, the police has a herculean task of showing that they acted on a report relating to a criminal offence which here appears non existent.

Seeking some remedy in court like damages whenever the police run foul of the tort of false imprisonment will help in reducing the level of police highhandedness.  It is true that such a court action compensates for misconduct, but it also transcends pecuniary gain.  It will go a long way in protecting our freedom and the common man.  I wonder whether Mr Chinakwe would have been incarcerated if he belonged to certain political/social class.

Ibe-Ojiludu is a post graduate law student.