Everyone in Ghana is entitled to freedom from physical restraint and is protected against unlawful interference with his or her freedom of movement and personal liberty. The tort of unlawful arrest secures these freedoms. The law on unlawful arrest is to be found in three sources: (a) the common law; (b) the Criminal; Procedure Code, 1960 (Act 30) as amended by N.R.C.D. 235: and (c) articles 14 and 21 of the Constitution. 1992 of Ghana.
The case of Christie v. Leachinsky provides the common law rules. In that case, the appellants who were Liverpool police officers arrested the respondent at his warehouse in Liverpool, without a warrant. At the time, they suspected and had reasonable grounds for suspecting that he had stolen or feloniously received, at Leicester, a bale of cloth then in the warehouse, but they did not give this as the ground of the arrest. Instead they said they were arresting him on a charge of “unlawful possession” under the Liverpool Corporation Act, 1921, though in the circumstances, the Act gave them no power of arrest without warrant. The respondent was taken to the police station and brought before a magistrate on the unlawful possession charge.
In an action for false imprisonment, the appellants sought to justify the arrest and detention on the common law ground. Per Viscount Simons.”
“(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a soil which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the true, ground to himself or to give a reason which is not true. In other words, a citizen is entitled to know on what charge suspicion of what crime he is seized.
(2) If the citizen is not so informed hut is nevertheless seized, the policeman, apart from certain-exceptions is liable for false imprisonment.
(3) The requirement that the person arrested should be informed of the reason why he is seized naturally. does if the circumstances are such that he must know the alleged offence for which he is detained.
4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that, in this country, a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.
(5) The person arrested cannot complain that he has not been supplied with the above information, as and when he should be if he himself produces the situation which makes it practically impossible to inform him e.g. by immediate counterattack or by running away….
These principles equally apply to a private person who arrests on suspicion.” Per Lord Simonds at 591:
“Blind, unquestioning obedience is the law of tyrants and of slaves: it does not yet flourish on English soil.”
Nobody therefore has a right to an another unless authorised by-law. As indicated earlier, the law on arrest is contained in the Criminal Procedure Code, I960 (Act 30). Under the general law i.e. Act 30 there are two types of arrest:
1. Arrest with a warrant, in which case there can be no action because the warrant is issued by a judicial officer and the judicial officer’s intervention ends any action, i.e. false Imprisonment. This is because, constitutionally, a judge enjoys immunity from action.
2. Arrest without warrant.
Both types of arrest are regulated by various provisions of Act 30.
Arrest with a warrant under sections 71-81 of Act 30
Sections 72-73(1) provide that the warrant can be issued only by a judge upon a complaint or charge made before him on oath. Section 73(2) requires that the warrant must:
a) state briefly the offence with which the person against whom it is issued is charged;
b) indicate the name or other description of the person e.g. Koku Mensah; and
c) order the person persons to whom it is directed to apprehend the person against whom it is issued and, bring him before the issuing court or some other court with jurisdiction over the matter to answer the charge(s) against him and to be further dealt with according to law.
The warrant remains force until executed or cancelled by the issuing court. The warrant may be directed to more officers or persons than one. The person executing the warrant is required without unnecessary delay, to bring be person arrested before the court mentioned in the warrant, with an endorsement showing time and .place of the execution.
Where a person has been lawfully arrested, the police can search the premises or his person and seize material relevant to the prosecution of any crime committed by any person. Generally, therefore, the law requires arrests to be made with a warrant
Arrest without warrant
The law distinguishes between arrest private , individuals, and by law enforcement agents e.g. the police, without a warrant. In this case, a police officer or other law enforcement agent having police powers has greater protection than a private citizen i.e. greater powers of arrest without warrant. This is regulated by sections 10 and 12 of Act 30 as amended by the Criminal Code (Amendment) Decree, 1975 (NRCD 235).
(a) Arrest by a private person:
Section 12 of Act 30 as amended by the Criminal Code (Amendment) Decree, 1975 (NRCD 235) regulates this subject.
The relevant rules are briefly stated below. A private person may arrest without warrant any person who, in his presence, commits five offences namely
1. any offence involving the use of force, or violence;
2. any offence whereby bodily harm is caused to any person;
3. any offence in the nature of stealing or fraud;
4. any offence involving injury to public properly;
5. any offence involving injury to property owned by, or in the lawful care or custody of that private person.
Further, a private person may arrest without warrant any person whom he reasonably suspects of having committed any of the offences mentioned above, provided that an offence of that nature has in fact been committed. The case of Waller v. Smith & Sons explains this provision.
In that case, the plaintiff was for nine years assistant manager at a bookstall of the defendants at the King’s Cross Railway Station of the Great Northern Railway. Early in 1912, at the half yearly stocktaking, deficiencies were discovered. It was clear this must be due to pilfering on the part of one or more of the defendants’ servants. Stocks were taken in February, and April and further deficiencies were noted. The defendants, in order to detect the culprit, set a trap. Copies of the book “Traffic” were marked and delivered at the bookstall at King’s Cross. An agent of the defendants went to a shop at Staines kept by the plaintiff and his wife to purchase a copy of the book. One of the marked ones was sold to him. The book had been taken by the plaintiff on 15 June, 1912 from the bookstall without payment having been made and without the knowledge, of the manager or the assistants. After inquiries, it was discovered that the plaintiff had also breached his contract by setting up, together with his wife, a rival company.
The plaintiff was questioned and he gave unsatisfactory answers as to how he came to possess the marked book. Mr. Hornby honestly believed the plaintiff to have been responsible for the thefts which had been going on, and handed him over to the police. He was taken to the police court and charged with stealing the book. He was eventually acquitted. His defence, which was accepted by the jury, was that, in taking the book, he had no felonious intent. In the substantive suit, the defendant did not allege that he had stolen the book and did not associate him with the earlier thefts. He instituted his action for false imprisonment and malicious prosecution.
Sir Rufus Isaacs C.J., relying on the statement of law, as is to be found in Bullen & Leake’s Precedents of Pleading (3r ed) p. 797 stated the applicable law as follows: “At common law, a police constable may arrest a person if he has reasonable cause to suspect that a felony has been committed although it afterwards appears that no felony has been committed, but that is not so, when a private person makes or causes the arrest, for to justify his action he must prove, inter alia, that a felony has actually been committed. … I have come to the conclusion that it is necessary for a private person to prove that the same felony had been committed for which the plaintiff had been given into custody. …”
He stated: “A private individual is justified in himself arresting a person or ordering him to be arrested where a felony has been committed and he has reasonable grounds of suspicion that the person accused is guilty of it ~ that means the felony for which he has been arrested.”
He further stated: “Where a person, instead of having recourse to legal proceedings by applying for a judicial warrant for arrest or laying an information or issuing other process well known to the law, gives another into custody, he takes a risk upon himself by which he must abide, and, if, in the result, it turns out that the person arrested was innocent, and that therefore the arrest was wrongful, he cannot plead any lawful excuse unless he can bring himself within the proposition of law which I have enunciated in this judgment. In this case although the defendants thought, and indeed it appeared that they were justified in thinking, that the plaintiff was the person who had committed the theft, it turned out in fact that they were wrong. The felony for which they have handed the plaintiff into custody had not in fact been committed, and, therefore, the very basis upon which they must rest any defence of lawful excuse for the wrongful arrest of another fails them in this case. Although I am quite satisfied, not only that they acted with perfect bona fide in the matter but were genuinely convinced after reasonable inquiry that they had in fact caught the perpetrator of the crime, it now turns out that they were mistaken, and it cannot be established that the crime had been committed for which they gave the plaintiff into custody; they have failed to justify in law the arrest, and there must, therefore, be judgment for the plaintiff. .. .”
In summary, the law allows a private individual to arrest another on suspicion.
However three conditions must be satisfied otherwise the arrest will be unlawful. First,
the basis for the suspicion must be reasonable. Second, the arrest must be related to the five offences listed above. Third the offence must have actually been committed by the person being arrested. The law is thus clear that when a private individual arrests another without a warrant and the suspected offence is found not to have been committed for whatever reason he opens himself to a suit for unlawful arrest.
Arrest by police officer
This subject is regulated by section 10 of Act 30 as amended by the Criminal Code (Amendment) Decree, 1975 (NRCD 235). As with the case of an arrest by an individual without a warrant, the applicable rules provide for two different scenarios. Thus:
(1) A police officer may arrest without warrant any person who:
a) commits an offence in his presence;
b) obstructs a police officer in the execution of his duty, i.e. in the lawful execution of his duty;
c) has escaped or attempted to escape from lawful custody;
d) has in his possession any implement adapted or intended for use in unlawfully entering any building, and who gives no reasonable excuse for his possession of it;
e) has in his possession anything which may reasonably be suspected to be stolen property.
It must be noted that, unlike arrest by a private individual, here in the case of a police officer or a law enforcement agent, there, is no requirement that the offence must be committed in his presence and there is no limit on the offences for which the arrest can be made.
A police officer may arrest without warrant any person whom he suspects upon reasonable grounds:
a) of having committed an offence;
b) of being about to commit an offence, where there is no other practicable way of preventing the commission of the offence;
c) of being about to commit an offence, where he finds such a person in any highway, yard, building or other place during the night;
d) of being a person for whom a warrant of arrest has been issued by a court;
e) of being a deserter from the Armed Forces;
f) of having been concerned in any act committed outside Ghana, which, if committed in Ghana, would have been punishable as an offence, and for which he is, under any enactment, liable to be arrested and detained in Ghana.
In the case of arrests by police officers on suspicion, the law only requires that the police officer grounds for suspecting the arrestee be reasonable.
The decision in Dallison v. Caffery provides the test for what is reasonable. In that case, an amount of £173 was stolen from the office of a solicitor at Dunstable. A man named Dallison was arrested and charged with the offence. At the Quarter Sessions, counsel for the prosecution offered no evidence against the plaintiff, stating that it was a case of mistaken identity. Accordingly, the plaintiff was acquitted and discharged. The police officer in charge was Caffery. The plaintiff sued Caffery for false imprisonment and malicious prosecution. The judge dismissed the claim. He appealed. Lord Denning was satisfied that the defendant had reasonable cause for suspecting that the plaintiff had committed the crime. The test for reasonableness for the arrest is objective namely:
“Whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant would believe that there was reasonable and probable cause.”
General provisions relating to arrest in Ghana
Section 3 of Act 30 is relevant here. To arrest a person you must actually touch or confine the body of the arrestee, unless he submits to custody by word or deed. A case which illustrates this requirement is the case of Asante v. The Republic. In that case K lodged a complaint that she had been assaulted by the appellant. An escort police constable was detailed to go with her to invite the appellant to the police station. The police constable, when the appellant was found, showed him his identity card and invited him to the police station. The appellant refused to go. The police constable did not tell him why he was wanted at the station. Upon the appellant’s refusal, the police constable seized his ignition key thus preventing him from driving away. To retrieve the key, the appellant knocked the police constable down and whilst the police constable was on the ground, kicked him injuring him and damaging his trousers. The appellant was convicted of two charges of assault on the police constable in the execution of his duty and of causing damage to the property of the police constable.
He appealed arguing:
a) his arrest was unlawful on the evidence;
b) ipso facto, he was justified in resisting unlawful arrest; and
c) his conviction on charge 2 was bad because the value of the property rather than the value of damage was considered.
His appeal was allowed on the ground that the arrest was unlawful because:
The police constable failed to put the appellant under lawful arrest by not informing him of the cause of the arrest as required by section 10 of Act 30 (now NRCD 235) which empowers a police man to arrest without warrant; and the police constable committed assault on the appellant by refusing to leave the spot where the appellant was and seizing his ignition key which was not an integral part of the process of arresting the appellant.
Anterkyi J stated at 193: “And if as the jeep id shows, the EPWI merely told the appellant that he was wanted. It or being invited to the police station, the appellant was not legally obliged to go there for a mere chat.” The conviction on charge two was also set aside because the appellate court agreed with him.
Section 4. If you are arresting A by warrant and you believe he has entered a house, the occupier is required to afford you reasonable facilities to search the place for the person. If this fails, you can break into the place to effect the arrest.
Section 5. The person effecting the arrest may likewise break out to liberate himself.
Section 6. DPP v. Hawkson; Lewis v. Chief Constable. Person arrested is to be subjected to no more restraint than is necessary to prevent his escape, see Article 15 of 1992 Constitution.
Section 7. Unless the arrestee is caught in flagrante delicto, the arrestor shall inform the arrestee of the cause of the arrest; where he is acting under a warrant, notify the arrestee of the substance of the warrant and show it to him if he so desires. We can illustrate this provision by reference to the decision in Yaw v. Cobbina.
In Yaw v. Cobbina, the plaintiff had earlier lodged a complaint for the ejection of his caretakers from the farm.
Until late in 1958, he was the chief of Yamfo, a town near Sunyani. He was destooled and notice to that effect was published in the Gazette of November 1958. He was further ordered to hand over all the stool properties to Nana Boama 11, the new chief, who was authorised to seize and take possession of such properties. He was allegedly restrained when he would not give up the black stools and imprisoned in Sunyani. Police justification was that he was arrested and detained for committing in their presence the offence of hindering the recovery of the stool property. He further alleged that he was not told the reason why he was arrested. The plaintiff sued for £5,000 damages for unlawful arrest and false imprisonment. Held: The arrest and detention were not unlawful and the plaintiff was released, as soon as the police decided not to prosecute him. It was not unlawful because it was in consequence of his refusal to hand over the black stools, an act which was an offence liable to summary conviction under the Statutes Law (Amendment) (No. 2) Act, 1957, s. 7. In the circumstances, he ought to have known the reason for his detention and it was not necessary for him to be told.
In Asumani Bugembe v. Attorney-General, from conflicting evidence, the court found that the plaintiff was injured when resisting arrest in his shop at Nakawa, in the city of Kampala but that the police failed to inform the plaintiff of the reason for his arrest. The plaintiff sought damages for assault.
Benne Ag. C.J. (Uganda) said: “I am satisfied on a balance of probabilities, that Sergeant Aliangwa did go to the plaintiff’s shop after the plaintiff had refused to make a statement to Detective Constable Loumi; that because the plaintiff threatened Loumi, Aliangwa had decided to arrest the plaintiff; that before he could do so and before he had laid hands on the plaintiff, the plaintiff assaulted him and pulled him into the shop. I believe that Aliangwa and the other members of the police party were on the defensive throughout, although no doubt they fought back in defending themselves against overwhelming odds. I am satisfied that the plaintiffs injuries were sustained in this affray, while the police were lawfully defending themselves against an unruly mob of whom the plaintiff was the leader. I am satisfied that, when Inspector Kasoro and his party of police arrived on the scene, the plaintiff and his mob were actively engaged in attacking Sergeant Aliangwa and another policeman. In my judgment, Inspector Kasoro was justified in arresting the plaintiff. The plaintiff was not at that time lawfully resisting an attempt to arrest him. As already indicated, I believe that the plaintiff resorted to violence before Sergeant Aliangwa laid hands on him. One of the requirements of a lawful arrest at common law is that the person arrested should be informed of the reason of his arrest: see Ciiristie v. Leachinsky [1947] A.C. 573 and Mwangi s/o Njeroge v. R. (1954) 21 E.A.C.A, 377 (K).
There are two exceptions to this rule which are stated thus in speech of Viscount Sirnon in the English cases:
1. The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is
detained. …
2. The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, example by
immediate counter-attack or by running away.
In my judgment both these exceptions are applicable to the circumstances of the instant case. I find that the plaintiff’s arrest by Inspector Kasoro was lawful. The plaintiff’s case is dismissed and he is ordered to pay the defendant’s costs. ”
Section 8. The arrestee is to be decently searched and all things found on him placed in safe custody.
Section 9. The arrestee must be taken with all reasonable despatch to a police station other place where the arrestee can be taken and to be told, without delay of the cl t against him. The arrestee is to be given reasonable facilities for obtaining legal advice taking steps to furnish bail and making arrangements for his defence or release
Section 14. Any private person arresting without warrant shall without unnecessary delay hand arrestee over to a police officer/station or take him to nearest police station
Section 15. A person taken into custody without warrant shall be released not later 48 hours unless he is earlier brought before a court. He can be bonded with or without sureties to appear before such court or police station or place and at such time is stated in the bond.
As indicated at the beginning of this chapter, article 14 of Constitution 1992 provides rules for the tort of unlawful arrest,
Article 14 of the Constitution, 1992 provides as follows::
“(1) Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law—
(a) in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted; or
b) in execution of an order of a court punishing him for contempt of court; or
c) for the purpose of bringing him before a court in execution of an order of a court; or
d) in the case of a person suffering from an infectious contagious disease, a person of unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community; or
e) for the purpose of the education or welfare of a person who has not attained the age of eighteen years; or
f) for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the expulsion, extradition or other lawful removal of that person from Ghana or for the purpose of restricting that person while he is being lawfully conveyed through Ghana in the course of his extradition or removal from one country to another; or
(g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.
(2) A person who is arrested, restricted or detained shall be informed immediately in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice.
(3) A person who is arrested, restricted or detained —
a) for the purpose of bringing him before a court in execution of an order of a court; or
b) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana, and who is not released shall be brought before a court within forty-eight hours after the arrest, restriction or detention.
4) Where a person arrested, restricted or detained, under paragraph (a) or (b) of clause 3 of this article is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released, either unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appeals at a later date for trial or for proceedings preliminary to trial.
5) A person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person.
(6) Where, a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.
(7) Where a person who has served the whole or a part of his sentence is acquitted on appeal by a court, other than the Supreme Court, the court may certify to the Supreme Court that the person acquitted be paid compensation; and the Supreme Court may, upon examination of all the facts and the certificate of the court concerned, award such compensation as it may think fit; or, where the acquittal is by the Supreme Court, it may order compensation to be paid to the person acquitted.”