Legality And Application Of Search Warrants Under Nigeria Law
INTRODUCTION
Sections 34, 35, and 37 provide and enable all citizens of Nigeria to enjoy the rights to dignity, liberty, and privacy. However, while the law acknowledges these constitutional rights, they must not be exercised to the detriment of other citizens. Therefore, the police and other law enforcement agencies have the legal authority to search, arrest, and investigate when there is a suspicion, threat or commission of a crime.
A search is conducted on a suspect in order to obtain evidence to be used at trial.[1] A search is usually executed by the police officers or other law enforcement agents upon presentation of a warrant[2] or while being present at a crime scene[3]. Section 143 of ACJA stipulates that a police officer may apply to a court or a justice of the peace within the local jurisdiction of a suspect for a search warrant when conducting an investigation under the ACJA.
A search can be conducted on a person, things or premises.
- Search of Persons
A police officer or law enforcement agent may conduct a search on a person reasonably suspected of possessing stolen or unlawfully obtained items[4]. An arrested person may also be searched to gather evidence related to a crime. Under the Administration of Criminal Justice Law of Lagos, 2021, and the ACJA, searches must be conducted by individuals of the same sex and carried out with decency. Additionally, a police officer with a warrant of arrest is not required to present a search warrant to conduct a search on a person.[5]
2. Search of Premises
A police officer may search premises that are reasonably suspected of being used for the commission of an offense. In such cases, the police will require a search warrant to legally conduct the search. However, if the police possess a warrant of arrest, that warrant is sufficient to allow the police to search the premises where they have been informed that the subject of the arrest warrant is hiding.[6]
3. Search of Things
Law enforcement officers are empowered by law to stop and search vehicles on the road, ships at sea, and passengers of aircraft at checkpoints to prevent and detect crime, as well as to apprehend law violators.[7] Before conducting any search on a person or thing the police officer shall give the suspect his name and the police station he is attached to.[8]
ISSUANCE OF SEARCH WARRANT
A search warrant is issued based on information provided under oath and in writing, stating that a place is reasonably suspected of being used for the commission of an offense.[9] A search warrant must be signed or stamped by the magistrate or judge issuing it. It should clearly describe the premises to be searched and provide an appropriate description of the person(s) occupying the premises. The warrant should also list the suspected illegal items being searched for. While the warrant specifies the items to be recovered, the police are not limited to these items. During the execution of the search warrant, the police can seize any illegal items found on the premises, and if relevant, these items may be admitted as evidence in court. The court held in Musa Sadau v The State[10], that as long as the items are relevant, it may be admissible by the court as evidence even if they were not listed in a search warrant.
LIFE SPAN OF SEARCH WARRANT
A search warrant may be issued and executed on any day of the week including Sunday and public holiday. A search warrant should be executed between the hours of 5.00am to 8.00pm except otherwise stated in the warrant by the issuing authority.[11] Under ACJA, a search warrant may be issued on any day and at any time. A search warrant issued remains valid and legal until it is executed or cancelled by the issuing authority[12].
The authorities empowered to issue a search warrant include;
- Magistrate
- Judge
- Justice of peace in the northern states and under ACJA
- Superior Police officer above the rank of Cadet Assistant Superintendent of Police[13].
EXECUTION OF A SEARCH WARRANT
A house search should be conducted in the presence of two adult neighbors, summoned by the officers conducting the search. The officers must first inform the occupants of the house about the search and the suspicions involved. Before starting the search, the officers are required to submit themselves to be searched by the occupants, building trust and ensuring that no incriminating items are planted by the officers. If an officer refuses to submit to a search before executing the warrant, the occupants of the house have the right to resist the search. This principle has been upheld in court, as seen in the case of Onuorah v. Commissioner of Police. [14]
ILLEGAL SEARCH
A search must be conducted legally and appropriately. However in Nigeria, the law provides that evidence obtained from an illegal search may still be admissible if it is relevant to the case. In Kurama v. R, it was held that the court is not concerned with how the evidence was obtained but rather with the relevance of the evidence to the case at hand.[15] In George Ordon v Chief Nimi Barigha Amonge,[16] the court expressed the view that it is relevance that governs admissibility of evidence before the courts and tribunals. So also, in Rauf Adesoji Aregbesola v Olagunsoye Oyinlola[17] the court states that the test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. However, the officer who conducted the illegal search may be liable for trespass under civil wrongs against the occupants of the land. The Court of Appeal in Obembe v Ekele[18] in its decision pertaining to the test applicable in considering admissibility of a piece of evidence, said:
‘… finally, the test to be applied, both in civil and criminal cases in considering whether evidence is admissible, is whether it is relevant to the matters in issue; if it is, it is admissible and the Court is not concerned with how it is obtained.’[19]
Under statutory regime, section 14 and 15 of the Evidence act empowers the court to exercise its discretion in admitting illegally obtained evidence via the consideration of certain conditions as outlined in section 15 of the Evidence Act.
Section 14 provides that;
Evidence obtained –
- Improperly or in contravention of a law; or
- In consequence of an impropriety or of a contravention of a law. shall be admissible unless the court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.
Section 15 further provides that;
For the purposes of section 14, the matters that the court shall take into account include –
- the probative value of the evidence;
- the importance of the evidence in the proceeding;
- the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;
- the gravity of the impropriety or contravention;
- whether the impropriety or contravention was deliberate or reckless;
- whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
- the difficulty, if any, of obtaining the evidence without impropriety or contravention of law
In Ibrahim v Ogunleye,[20] an election petition case, the court held that illegally or unlawfully obtained evidence if relevant is admissible. Thus, the fact that a ward supervisor of a political party who is not one of the categories of persons specifically mentioned in section 46(1) and 62(1) of the Electoral Act and the INEC Manual for the 2007 election would not by that fact alone automatically make the evidence of such a person inadmissible. The illegality of his presence at the polling station would not automatically translate to inadmissibility of the evidence of what he saw, experienced or witnessed at that polling station. Such evidence is analogous to evidence illegally or unlawfully obtained, which if relevant is admissible. Thus, in reinstating the applicable test on admissibility of evidence, the court states: ‘The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in dispute. If it is admissible, the court is not concerned with how the evidence was obtained. Similarly, in the case of Sunday John v The State,[21] the Court of Appeal (Akure Judicial Division) in a judgment delivered by per JOMBO-OFO, J.C.A. held that:
“Evidence obtained improperly or even in contravention of a law shall be admissible pursuant to section 14 of the Evidence Act, 2011 unless the court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in that manner. In this regard and as spelt out in section 15 of the Evidence Act supra, the court shall take into account:
(a) The probative value of the evidence;
(b)The importance of the evidence in the proceeding;
(c) The nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding”
The position in Nigeria is an extension of the common law approach to admissibility of illegally obtained evidence where such evidence is relevant to the fact of the case in issue. In other climes like the United States of America, only evidence obtained legally through a search warrant may be admissible by the court.
Although an officer who obtains an evidence through illegal search shall be liable to civil wrong, the admissibility of illegally obtained evidence in Nigeria allows law enforcement officials to infringe upon personal privacy, a constitutional right, by securing illegal evidence to ensure prosecution or establish guilt at all costs. This practice opens the door to violations of personal privacy and property rights, suggesting that the admissibility of such evidence, obtained through illegal search and seizure, encourages these breaches. Therefore, the law should be revised and a mended to require strict adherence to due process in the conduct of searches. In essence, every search should be conducted under a properly obtained and executed warrant. The law should strike a balance between protecting society from criminal acts and preserving individual rights. Accordingly, the legislation governing search should be amended to explicitly prohibit unlawful and irregular searches and seizures, rendering any evidence obtained through such means inadmissible in Nigerian courts.
CONCLUSION
A legal search is one of the ways in which the law safeguards society from the influx of crime and injustice. Therefore, once a search is conducted in accordance with legal procedures, it helps to ensure that justice is served while upholding individual rights and maintaining public order.
[1] A. F. AFOLAYAN, Criminal Litigation in Nigeria at page 68.
[2] [2] Section 58 -59 Police Act, 2020
[3] Section 143, Administration of Criminal Justice Act, 2015 (hereinafter referred to as “ACJA”)
[4] Section 50 -51 Police Act, 2020.
[5] Section 52, Police Act, 2020.
[6] Section 144 (2), ACJA, 2015.
[7] Section 49, Police Act, 2020
[8] Section 50 (3) (b), Police Act, 2020
[9] Section 144, ACJA,2015.
[10] (1968) NMLR 208
[11] Section 108 ACJL,2021
[12] Section 146 ACJA ,2015
[13] Ibid
[14] (1960) WRNLR 110
[15] (1955 )ALL E.R. 236
[16] (2010) 12 NWLR (pt 1207) 13 at 22
[17] (2011) 9 NWLR (pt 1253) 117
[18] (2001) 8 WRN 68
[19] Ibid at pt 71
[20] (2012) 1 NWLR 489 at 508 paras. C-D, C.A.
[21] (2013) LPELR-20536 (CA) pp. 29-30, paras. G-D