SEARCHES, ARREST AND CONSTITUTIONAL RIGHTS

What is a search in criminal litigation?

Search is the examination of a person's body, property or premises by a law enforcement officer to discover evidence of a crime or concealed items.

What powers do the Police have regarding searches?

The Police may:

• Stop and search persons

• Stop and search vehicles in public places

• Detain and search persons suspected of possessing stolen or illegally obtained items.  

Authorities: Sections 4 & 48 Police Act, Section 49 Police Act 2020, Section 52 Police Act 2020.

Which constitutional right does a search potentially infringe?

Section 37 CFRN 1999 – Right to Private and Family Life.

What is the condition precedent for a valid search by the Police?

The search must be based on reasonable suspicion.  

Section 29 Police Act.

What are the three types of searches?

Search of:

• Person

• Premises

• Things.

Which laws empower the Police to search a person?

Section 52 Police Act

Section 5(1) ACJL Lagos, Section 9(1) ACJA, Section 159(3) ACJL Kano, Section 150(1) CEMA, Section 32 NDLEA Act.

What are the rules governing the search of a person?

Must be conducted decently.  Must ordinarily be by a person of the same sex.  Must respect the dignity of the person searched.  Authorities: Section 9(3) ACJA, Section 5(2) ACJL Lagos, Section 32(3) ACJL Kano, Section 34 CFRN.

Can a male search a female suspect?

Generally, No. The search must be conducted by a person of the same sex.  Authority: Section 9(3) ACJA, Section 5(2) ACJL Lagos.  

Exception to a male searching a female?

Exception under ACJA: Where urgency or the interest of justice makes same-sex search impracticable.

Does the same-sex rule apply to a woman's handbag or appurtenances?

No. A handbag or other appurtenances may be searched by the opposite sex.

Can a search of a person be conducted without a search warrant?

Yes. Search of:

• Persons

• Things

Authority: Section 9(1) ACJA, Section 5(1) ACJL Lagos.

Can a premises be searched without a search warrant?

Generally, No. A search warrant must first be obtained.  Authorities: Section 143 ACJA, Section 297 ACJL, Section 37 CFRN.

Who can issue a search warrant under ACJA?

Judge, Magistrate, Justice of the Peace.  Authority: Section 146(1) ACJA.

Who can issue a search warrant under ACJL Lagos?

High Court Judge, Magistrate.  Authority: Sections 104 and 106 ACJL Lagos.

Can a Police Officer issue a search warrant?

No. Regardless of rank, a Police Officer cannot issue a search warrant. Only the courts can.  Authorities: Sections 58, 71 and 141 Police Act 2020.

State the contents of a search warrant.

AIDS:  A – Address of the premises  I – Items to be searched for  D – Direction that items be seized and brought to court  S – Signature of issuing authority.  Case: Elias v. Pasmore.

How is a search warrant procured?

Upon:

• Information on oath; and

• In writing.  Authorities: Sections 143-144 ACJA, Section 104 ACJL Lagos.

State four situations where a search warrant is unnecessary.

Under:

• An arrest warrant.

• Search conducted in the presence of a Magistrate or Justice of Peace.

• Under special statutes: CEMA, NDLEA Act, NSCDC Act.

• Pursuant to an order of court.

What happens where a Police Officer executing an arrest warrant is denied entry into premises?

The officer may use reasonable force to break in and out.  Authorities: Sections 12(2) and 13 ACJA.

Is the presence of a Magistrate or Justice of Peace equivalent to a search warrant?

Yes. Where the Magistrate or JP personally directs and supervises the search, a search warrant is unnecessary.  Authority: Section 152 ACJA.

What special rule applies to a woman living in purdah?

She must be given reasonable notice to withdraw before the search is conducted.  Authorities: Section 149(6) ACJA, Section 7(3) ACJL Lagos, Section 159(6) ACJL Kano.

State the exceptions to the purdah rule.

The rule does not apply where:

• The woman is herself the subject of the search.

• The searching officer is a woman.

• The woman is absent from the premises.

What constitutional rights must be respected during invasive body searches?

Right to Privacy – Section 37 CFRN.  Right to Dignity of Human Person – Section 34(2) CFRN.  Note: A corner of a room is not a private place.

What is the procedure after items are recovered during a search?

The items are taken to the Police Station.  They are entered in the Exhibit Register.  They are handed to the Exhibit Keeper.  They are kept in the Exhibit Room.

What is an inventory of recovered items?

It is a list of all items recovered from the suspect during a search.  Authorities: Section 10(1) ACJA, Section 5 ACJL Lagos.

Must the suspect sign the inventory?

Yes, under ACJA. However, failure to sign does not invalidate the inventory.  Authority: Section 10(2) ACJA.

Who is entitled to receive a copy of the inventory?

The arrested person;  His legal practitioner; or  Any person directed by him.  Authorities: Section 10(3) ACJA, Section 6(b) ACJL Lagos, Section 36(6)(c) CFRN.

What does Section 54 of the Police Act 2020 prohibit?

Profiling. A person cannot be searched merely because of:

• Age

• Dressing

• Appearance

• Hairstyle

• Lifestyle

• Previous conviction.  Authority: Section 54 Police Act 2020.

What is arrest?

Arrest is the process of bringing a person before a court or police station by lawfully restraining their freedom of movement.

What is the essential element of an arrest?

The person must know that his movement has been restrained or curtailed.

Which constitutional right is affected by an arrest?

The right to personal liberty under Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Who may effect an arrest?

Law enforcement agencies and, in appropriate circumstances, a private person.

What are the three methods of bringing a suspect before the court?

1. Arrest with warrant

2. Arrest without warrant

3. Summons

What is a warrant of arrest?

A written authority directing a police officer or another person to arrest a named offender and bring the offender before the court to answer a complaint.

Which statutory provisions define a warrant of arrest?

Section 79 ACJL and Section 113 ACJA.

Is a court obliged to issue a warrant once a complaint is made?

No. The issuing authority has discretion to issue either a warrant of arrest or a summons.

What determines whether a court issues a summons or a warrant?

The circumstances of the particular case.

To whom is a summons directed?

The alleged offender.

To whom is a warrant of arrest directed?

A police officer or another person who is to effect the arrest.

Who may issue a warrant of arrest?

1. A Judge

2. A Magistrate

3. The National Assembly (in limited constitutional circumstances)

Can a Magistrate issue a warrant for an offence outside his trial jurisdiction?

Yes.

Which provisions empower a Magistrate to issue a warrant regardless of trial jurisdiction?

Section 36(1)(c) ACJA, Section 22 ACJL Lagos, Section 55(1)(c) ACJL Kano.

Can a Justice of the Peace issue a warrant of arrest?

No.

Can a police officer issue a warrant of arrest?

No, irrespective of rank.

Which case illustrates that a judge must issue a warrant while acting in a judicial capacity?

IKONNE v. COP.

Why was the warrant in IKONNE v. COP invalid?

The judge issued it while acting as Chairman of a Judicial Commission rather than in his capacity as a judge.

When may the National Assembly issue a warrant or summons?

During investigations relating to matters on which it has constitutional power to make laws.

Which constitutional provision empowers the National Assembly to issue warrants?

Section 89 CFRN.

Is the National Assembly's power to issue warrants unlimited?

No.

Which case limits the National Assembly's power to issue warrants?

EL-RUFAI v. Senate of the National Assembly.

Can an Area Court Judge issue a warrant of arrest?

Yes, where the Area Court is in the FCT and is presided over by a legal practitioner.

Which provision allows a legally qualified Area Court Judge to issue a warrant?

Section 494(1) ACJA.

Can an Area Court presided over by a non-lawyer issue a warrant?

No.

To whom may a warrant of arrest be directed?

A police officer or a private person.

What powers does a private person possess when executing a warrant?

For the purpose of that arrest, the private person has all the powers of a police officer.

What is the primary method of effecting an arrest?

By touching or confining the body of the suspect.

Which statutory provisions govern touching or confining the suspect during arrest?

Section 4 ACJA, Section 1 ACJL Lagos, Section 27 ACJL Kano, Section 33 Police Act.

Which case establishes that a mere invitation to the police station is not an arrest?

Sadiq v. The State.

What happened in Sadiq v. The State?

The accused merely ignored a police invitation. Since there had been no actual arrest, she could not be guilty of resisting arrest.

What must an arresting officer communicate to the suspect during arrest?

The reason for the arrest and words of caution.

Which provision requires words of caution to be administered?

Section 3 ACJL.

What is the general rule regarding handcuffs?

They are prohibited unless permitted by law.

What mnemonic helps you remember when handcuffs may be used?

ROAS
R – Reasonable apprehension of violence
O – Order of court
A – Attempt to escape
S – Safety of the suspect or arresting officer.

Which statutory provisions govern the use of handcuffs?

Section 2 ACJL, Section 5 ACJA, and Section 34 Police Act.

How is a complaint made for the purpose of obtaining a warrant of arrest?

By a complaint in writing and on oath. Authority: Section 23 ACJL; Section 37 ACJA.

Must every complaint for a warrant of arrest be made in writing and on oath?

Generally yes, but the law recognizes exceptions.

Can a warrant of arrest be issued on an oral complaint?

Yes. Authority: Fayose v. State.

What principle was established in Fayose v. State?

A warrant of arrest may validly be issued on an oral complaint.

Can a Magistrate issue a warrant where the complaint discloses an offence but is not on oath?

Yes.

Does the requirement that a complaint be in writing prevent the police from acting on an oral complaint?

No.

Why may the police act on an oral complaint?

Because requiring every complaint to be reduced into writing before taking action may defeat the administration of justice in urgent situations.

Give an example where an oral complaint may justify immediate police action.

Where someone telephones the police with information about the whereabouts of a wanted kidnap suspect.

On what days may a warrant of arrest be issued?

Any day, including Sundays and public holidays.

When may a warrant of arrest be executed?

At any time.

Which statutory provisions govern the time of issuing and executing a warrant?

Section 24 ACJL and Section 38 ACJA.

What mnemonic helps you remember the contents of a valid warrant of arrest?

NaCODS

What does the "Na" in NaCODS stand for?

Name and particulars of the alleged offender.

What does the "C" in NaCODS stand for?

Charge (brief statement of the alleged offence).

What does the "O" in NaCODS stand for?

Order directing the police officer or other person to arrest the suspect.

What does the "D" in NaCODS stand for?

Date of issue.

What does the "S" in NaCODS stand for?

Signature of the issuing authority.

Which statutory provisions prescribe the contents of a warrant of arrest?

Section 22 ACJL and Section 36 ACJA.

How long does a warrant of arrest remain valid?

Until it is executed or cancelled by the issuing authority.

Which provisions govern the lifespan of a warrant?

Section 25(2) ACJL and Section 39(2) ACJA.

What happens to a warrant once it has been executed?

It lapses and cannot be used again.

Does a warrant expire because the issuing Judge or Magistrate dies?

No.

Does a warrant expire because the issuing Judge or Magistrate retires?

No.

Does a warrant expire because the issuing Judge or Magistrate vacates office?

No.

Where may a warrant generally be executed?

Anywhere.

Under the ACJA, can a warrant be executed in a courtroom while the court is sitting?

No. Authority: Section 43(2) ACJA.

Under the ACJA, may a warrant be executed in a courtroom if the Judge is still in chambers?

Yes, because the court is not yet sitting.

What is the Lagos position regarding execution of a warrant in a courtroom?

A warrant cannot be executed in a courtroom whether or not the court is sitting.

Which provision contains the Lagos rule?

Section 27(2) ACJL Lagos.

State one major distinction between ACJA and ACJL Lagos regarding execution of warrants in courtrooms.

Under the ACJA, execution is prohibited only while the court is sitting; under the ACJL Lagos, execution is prohibited in a courtroom at all times.

Can a member of the National Assembly be arrested within the precincts of the legislature?

No.

Does this protection extend to legislative staff?

No. It applies only to members.

What does "precincts" mean in relation to the legislature?

The entire premises of the legislative house.

Which statutory provision grants legislative immunity from arrest within the precincts?

Section 23(b) of the Legislative Houses (Powers and Privileges) Act, 2017.

Which case discusses this legislative privilege?

Tony Momoh v. Senate President.