CRIMINAL LITIGATION: SEARCHES, ARREST AND SUMMONS

SEARCHES, ARREST AND CONSTITUTIONAL RIGHTS

The major ways to compel the attendance of an accused either to the Police Station or the Court are summons, arrest with warrant and arrest without warrant.

SUMMONS

A Summons is an order issued to a person by a Judge or Magistrate or Justice of Peace upon a complaint that an offence has been committed. Section 79 CPA; Section 47 CPC. A Summons is in effect an invitation to a person suspected to have committed an offence, requesting him to attend the Police Station or Court within 48 hours from the time of service on him of the Summons. Section 83 CPA. It is usually issued in respect of misdemeanors or minor offences.

Where there is a complaint before a Magistrate or a Judge that any person has committed an offence, the court may issue a summons directing the alleged offender to appear before it, and it is usually in a written order requiring the person named in it to appear in court or report at the police station at a particular date (being not less than 48 hours after the service of such summons) to answer to the charge or allegation against him – Section 83 of CPA. The Court retains absolute discretion in deciding whether to issue the summons to appear or a warrant or arrest even to reject the complaint entirely and give its reasons for so doing – Section 81 of CPA.

The contents of a summons are:

Concise statement of the alleged offence;
The name of the individual charged with the alleged offence(s);
An invitation to the person to attend Police Station or Court at a date and time not less than 48 hours from service;
The substance of the complaint against the accused;
Summons must be in duplicate copy;
The date the summons was issued; and
Signed by a Magistrate or a Judge. – Section 83 & 87 of CPA and Section 47(2) of CPC.

SERVICE OF SUMMONS

A summons may be issued and served on any day including Sunday and public holidays. Service of summons is by personal service unless it is impossible to effect personal service in which case substituted service is resorted to. Section 89 CPA; Section 49 CPC; Section 87 ACJL.

It is a personal service where it is given to the person directly and such a person must sign the back of the duplicate to acknowledge receipt of summons – Section 94 of CPA and Section 49(2) of CPC. If it is an official person such as a company, it will be served on the Director or Secretary or Principal Officer of the company.

Substituted service may be effected by affixing one of the duplicates to the Summons to a conspicuous part of the premises where the accused ordinarily resides. Section 90 CPA; Section 52 CPC; Section 88 ACJL. It may also be effected by leaving one duplicate with an adult male member of the offender’s family. Section 52 CPC. Where service is effected, the person must acknowledge receipt by signing on the duplicate on the back of the duplicate copy or in the presence of a witness (if he cannot sign). Section 94 & 95 CPA; Section 53 CPC.

Service outside jurisdiction is effected by sending a duplicate copy of the summons to a court within the jurisdiction or district where the accused resides where the summons is to be served. There is however, a difference to what is applicable in the North and the South. In the South, leave of court must be obtained to affix summons in a conspicuous part of the premises or place where the accused ordinarily resides, but there is no need for leave of court in the North – Section 90 of CPA and Section 52 of CPC. In all cases of substituted service, the person serving shall show proof of service by affidavit or declaration to that effect – Section 93 of CPA and Section 55 of CPC.

PUBLIC SUMMONS

Where there is evidence that a person against whom was issued is evading service, the High Court may issue a public summons which is an Order authorizing the summons to be read publicly in some conspicuous place in the town or village where the person ordinarily resides; or affixed to some conspicuous part of the house where he resides, or some conspicuous place in such town or village, or affixed to some conspicuous part of the court building. Section 67 of CPC.

LIFE SPAN OF A SUMMONS

A summons once issued remains in force until it is executed or arrested and the death, removal or retirement of the issuing authority does not invalidate the summons– Section 103 CPA and Section 383 of CPC.

The Court may dispense with the presence of the accused person if he pleads in writing or he is represented by Counsel. Section 154 CPC. But he may not be sentenced in absentia. Adeoye v The State.

ARREST

A person alleged to have committed an offence may be compelled to Court by arrest, with or without warrant. Section 21 CPA and Section 56 of CPC.

WARRANT OF ARREST

A warrant of arrest is an authority in writing issued by a court to a police officer or any other person to arrest a suspect. A Warrant of arrest may be issued where the law creating an offence states that an offender cannot be arrested without warrant, where a serious offence has been committed or where a person disobeys a summons.

A warrant of arrest can only be issued by a Magistrate or a Judge. However under the CPC, a Justice of Peace can also issue a warrant of arrest. In all cases, the warrant of arrest must be signed or sealed by whoever issues it. Section 22(1) CPA and Section 56(1) of CPC. It must be issued by a Court of competent jurisdiction. COP v Apampa.

By Section 23 of CPA, where by a complaint, a person is sought to be arrested, then the complaint must be on oath. Section 23 CPA. Ikonne v. C.O.P and Justice Nnanna Wachukwu (1986) 4 NWLR (Pt. 36) 473.

However, under the CPC, the complaint need not be under oath. Furthermore, a Magistrate can lawfully issue a warrant of arrest irrespective of the fact that he lacks the jurisdiction to try the alleged offence. But only a court of competent jurisdiction can issue a valid warrant of arrest.

A warrant is issued in the following situations:

Where the offence is a serious offence;
Where a summons is disobeyed; and
Where the statute creating the offence specifically provide that arrest shall be with a warrant.

Contents of a warrant of arrest:

It must be in writing
It must contain the name or description of the alleged offender
A concise statement of the offence for which it is issued
It must contain an order directing the person to whom it is issued to execute the warrant and apprehend the named individual
It must be in duplicate
It must contain the date it was issued
It must be signed by a Magistrate or a Judge

EXECUTION OF WARRANT OF ARREST

A warrant of arrest may be issued or executed on any day including a Sunday or public holiday – Sections 24 & 28 of CPA. But it cannot be executed in a Court in session or in a legislative house in session except with the consent of the head of the house. Section 31 Legislative Houses (Powers and Privileges) Act. Tony Momoh v Senate of the National Assembly.

A warrant of arrest once issued remains valid and subsisting until it is executed or cancelled by the issuing authority – Section 25(2) of CPA and Section 56(2) of CPC. However, once a warrant of arrest has been executed (that is used to make an arrest), the warrant of arrest expires and can therefore no longer be used to make another arrest not even to arrest the person earlier arrested with the same warrant. R. v. Akinyanju (1959) WRNLR at 253.

PROCEDURE FOR EXECUTING WARRANT OF ARREST

The procedure for effecting arrest is that the person making the arrest must actually touch or confine the body of the person to be arrested, for words alone are not sufficient unless there is submission to the custody by words or action. The offender should be informed of the reason for his arrest except where the reason is obvious or where it is suspected that the offender may escape or resist arrest – Section 28(3) of CPA and Section 60 of CPC. However, if the warrant of arrest was not immediately available at the time of arrest, the officer or any other person executing a warrant of arrest may still arrest the offender. But the existence of the warrant of arrest must be disclosed to the arrested person and thereafter the warrant should be shown to the person as soon as practicable – Section 29 of CPA and Section 61 of CPC. The person making the arrest is allowed to use reasonable force to arrest the offender but the person arrested shall not be handcuffed unless there is apprehension of violence.

EXECUTION WARRANT OF ARREST OUTSIDE JURISDICTION

A warrant of arrest may be executed within a state irrespective of the fact that the offender was found within the state but outside the district in which the warrant of arrest was issued – Section 31 of CPA and Section 64 of CPC. Both Sections also provide that a warrant of arrest, which is not a warrant of arrest for a capital offence, may be endorsed with bail if he meets the bail conditions stipulated therein.

When a warrant of arrest executed outside of the district of issue but within the same State is not endorsed with bail, the arrested person must be taken to a competent court within the district where he was arrested. The court thereafter will direct his removal to the court, which issued the warrant of arrest – Section 31 of CPA and Section 66 of CPC. However, Sections 65 & 66 of CPC provides that before a warrant of arrest is executed within the State but outside the district of issue, a court in the district where the offender is found must endorse it, before it is executed on the offender.

The procedure for the execution of a warrant of arrest outside a state of issue is regulated by Section 482 CPA. The procedure is summarized as follows:

The warrant is taken to the appropriate Magistrate in the State where the accused resides;
The Magistrate endorses the warrant after satisfying himself that the warrant is issued by the Judge or Magistrate, that the alleged offence is known to law in the State of issue;
The endorsement is sufficient authority for the Police Officer to execute the warrant, arrest the person and bring him to the endorsing Magistrate;
The Magistrate may either order the person arrested to be returned to the State of issue or admit such person to bail.

ARREST WITHOUT WARRANT

It should be noted that a person can also be arrested without a warrant by a police officer, judicial officer, a Justice of the Peace or a private person, as the case may be, where he is suspected of having committed an offence or found committing an offence. This may be done by the Police Section 10(1) CPA and Section 26 CPC; Judicial Officer Section 15 CPA and Section 29 CPA and private persons Section 28 CPC.

Note: In such situations, notwithstanding the fact that, the offence for which the person is arrested is one for which the law that created the offence requires that an offender can only be arrested with a warrant of arrest, a person can nevertheless be arrested without a warrant – Section 10(2) of CPA and Section 26(a) of CPC.

EFFECT OF IRREGULARITY IN EXECUTION WARRANT OF ARREST

Section 101 of CPA provides that once an alleged offender is brought before the court, no irregularity or defect in the way and manner he was arrested can deprive the court of the jurisdiction to try the alleged offender.

SEARCH

A search is an examination of a person’s body, vehicle, house, premises, etc with a view to discovering contraband, illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some other crime or offence with which he is charged. It may be on person, premises or thing. Section 6(1) CPA; Section 78 & 79 CPC; Section 5 ACJL.

There are three (3) types of search viz.:

Search of persons;
Search of premises; and
Search of things.

SEARCH OF PERSONS

Section 25 of the Police Act makes provision for the search of a person. It provides that a police officer may detain and search any person whom he reasonably suspects of having in his possession or conveying in any matter anything which he has reason to believe to have been stolen or otherwise unlawfully obtained.

Whenever a person is arrested by a police officer or private person, the police officer may search the person upon arrest. The police officer may remove from the person arrested anything found on him other than necessary clothing – Section 6(1) of CPA and Section 44(2) of CPC. Any person arrested and detained in lawful custody may be subjected to a medical examination where such examination will afford evidence of the commission of an offence – Section 6(6) of CPA and Section 127 of CPC. This may be as regards to persons suspected of concealing on their bodies hard drugs such as cocaine and heroin.

Section 133 of Customs and Excise Management Act 1958 empowers its officers to search any person reasonably suspected of carrying anything chargeable with duty with intent to evade payment of duty, or any person carrying any articles, the importation or exportation of which is prohibited, provided the person is within a customs area.

A woman can only be searched by another woman – Section 6(2) CPA; Section 44(3) CPC; Section 5(1) ACJL, and such search must be with strict regard to decency – Section 82 of CPC. However it should be noted that this is as regards to her body only, for a man can search her bag, purse, etc. Also, there is no statutory provision under the CPA and the CPC that a man cannot be searched by a woman but what is in practice is that a man should be searched by a man (not a woman) with strict regard to decency. It is only the ACJL that contains language to the effect that search by a person cannot be done by a person of the opposite sex. Section 5(2) ACJL.

SEARCH OF PREMISES

As a general rule and except in limited circumstances a search warrant is required to search premises. This is because as much as possible the law protects the sanctity of a home. For premises to be searched, a search warrant must be obtained by the police. There are however instances where premises can be searched without warrant.

Where a person to be arrested under a warrant of arrest is suspected of being within the premises, a Justice of Peace can direct a search to be conducted in the premises without a search warrant – Section 7 of CPA and Section 34 of CPC.
Custom officers are empowered to enter or break a place where there are reasonable grounds to suspect to suspect that anything is kept or concealed and conduct a search. Section 133 CEMA 1958
A Police or Custom Officer, Member of the Armed Forces or Director of NDLEA can, without warrant enter and search any land or building which is reasonably believed to be connected with the commission of an offence under the NDLEA Act. Section 32 NDLEA

SEARCH OF THINGS

A police officer may search such things as vehicle, ship, and an aircraft which may be conducted with or without a search warrant, depending on the nature of the thing to be searched.

Under Section 132 of the Customs and Excise Management Act, its officer is empowered to search any vehicle, ship or aircraft reasonably suspected of carrying goods liable to forfeiture without a search warrant.

A police officer may conduct a search of a thing which he reasonably believes contains anything unlawful and such a search can be conducted without a search warrant. This is derived from his general duty to prevent and detect the commission of crime – Section 4 of the Police Act. The power to mount road block to stop and search, and the power to detain and search a vehicle reasonably suspected of conveying anything unlawful is derived from Section 25 of the Police Act.

SEARCH WARRANT

A search warrant is a legal document authorizing a police officer or other official to enter and search premises. Under Section 109(1) CPA, a search warrant shall be under the hand (signature) of the Magistrate issuing the same. In Goodman v. Ebans Limited (1954) 1 All E. R. 763, the use of a rubber-stamp signature was held to be sufficient compliance with the requirement of signing.

A search warrant may be issued by a magistrate when he is satisfied by information on oath and in writing that there is reasonable grounds for believing that any building, ship, carriage, receptacle or place is being used for the commission of an offence – Section 107(1) CPA. The person executing the search warrant may seize such thing and carry it before the issuing magistrate or any other magistrate, to be dealt with according to law. The search warrant may also direct that the occupier of the premises where whatever is named in the search warrant is found can be arrested – Section 107 CPA and Section 74 CPC.

A Superior Police Officer can also issue a search warrant but it must be limited to where the item to be searched is a stolen property and where the premises is occupied by a person who within the preceding 12 months has been convicted of receiving stolen goods, habouring thieves, fraud or dishonesty and punishable by imprisonment – Section 24 Police Act. See Section 2 of the Police Act for the meaning of a Superior Police Officer to mean a person above the rank of Cadet ASP.

Contents of a search warrant are:

Address of the premises to be searched;
Items to be searched for;
A directive that the items be seized and brought to court; and
Signature of the person issuing it.

EXECUTION OF SEARCH WARRANT

A search warrant may be issued and executed on any day including a Sunday or Public holidays. Under Section 111 of the CPA – a search warrant shall be executed between the hours of 5am – 8pm except the issuing court in its discretion authorizes the execution of the warrant at any other time. However, a Magistrate may authorize that a search warrant may be executed at any other time other than 5am – 8pm, either at the time the search warrant was issued or at any time before the search warrant is executed – Section 111(2) of CPA. A Magistrate may also authorize the execution of a search warrant at any time in order to meet the exigency of a particular case. Vessels used for smuggling at night or houses of ill repute or immorality may therefore be searched at odd hours, when they usually operate.

Before a search warrant is executed on a person, premises or thing, the warrant must be shown to the person, occupier or person in control of the thing. The body of the person who intends to conduct the search will then be searched by the person named in the warrant (this is however hardly done in practice).

Under Section 79 of CPC, if any place to be searched is an apartment in the actual occupation of a woman, who is not the person to be searched, but who according to custom, does not appear in public, the person making the search shall, before entering the apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then enter the apartment. This is intended to protect the privacy of women of the Muslim faith.

Furthermore, under Section 78(1) of CPC requires that searches must be conducted in the presence of two respectable inhabitants of the neighbourhood summoned by the person to whom the search warrant is addressed. However, a Court or Judge or Justice of Peace may waive this requirement.

Such Officer issued a warrant must be allowed access into the premises to be searched and where property is seized, the occupier of the premises may be arrested and brought before the Magistrate to account for his possession of the goods. Where free ingress (entry) is not allowed to the person executing the search warrant, the person may break into and enter such premises in order to execute the search warrant – Section 112 and 7(2) of CPA. Furthermore, a police officer may break out of the premises after executing such warrant if denied exit– Section 8 of CPA. The person executing the search warrant may search any person within the premises whom he reasonably believes is concealing on him whatever is being searched for – Section 112(3) of CPA and Section 81(1) of CPC.

And where property is seized, the occupier of the premises may be arrested and brought before the magistrate to account for his possession of the goods – Section 107 of CPA and Section 76 of CPC. Such seizures are evidence at the trial of the alleged offence. After the trial, their disposal is at the discretion of the court – Section 113 of CPA.

Under Section 109(2) of CPA, a search warrant once issued remains valid and in force until it is executed or cancelled by the issuing authority.

ADMISSIBILITY OF MATERIALS OBTAINED IN THE COURSE OF AN UNLAWFUL SEARCH

Before now, the issue of admissibility of illegally obtained evidence was not provided for under the Evidence Act but was regulated by Common Law and Case Law. The position under English Law made applicable to Nigeria was that illegally obtained evidence is admissible in evidence in court, if it is relevant to the fact in issue, notwithstanding the manner of obtaining same.

The law was stated by the Judicial Committee of the Privy Council in Kuruma v. R (1955) 1 All ER 236 at 239 , as follows: the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible. In Musa Sadau & Anor v. The State (1968) NMLR 208 the Supreme Court cited with approval the observations of Kuruma v. R (supra), and held that even if the procedure laid down in Section 78 of the CPC in executing a search warrant was not followed, an irregularity may or may not have occurred. Nonetheless, it held that the evidence which was obtained as a result of the search was properly admitted by the trial court, because they were relevant to the fact in issue. Thus, the appeal was dismissed.

In the English case of R. v. Senat & Sin (1968) 52 Cr App R 282, the English Court of appeal held that although the evidence (tape recording) was illegally obtained, nonetheless it was admissible in evidence as it was relevant to the fact in issue. The appeal was dismissed.

The exception was only that illegally obtained involuntary confessions, obtained as a result of threat or inducement to an accused person by a person in authority are inadmissible as evidence in court as this was regulated by Section 28 Evidence Act 2004.

Under that position, the police officer or any other law enforcement agent who has obtained evidence illegally may be liable to the aggrieved person for damages in a civil action. In other words, the illegality attaches to the officer executing the search and not the illegally evidence obtained – Elias v. Pasmore.

However under the new Evidence Act 2011, the position has been slightly altered. By Section 14 of the Act, illegally obtained evidence is no longer automatically admissible as the Court now reserve the discretion to exclude such evidence if the desirability of its admissibility does not outweigh that of excluding it. By Section 15, the Act stipulates the factors the Court should consider in determining the desirability or otherwise of admitting the illegally obtained evidence.

PROCEDURE FOR CHALLENGING SEARCHES AND ARREST

The position of the law is that a person who lays a complaint before a police officer on the basis of which a search warrant is obtained, may or may not be liable in damages for false imprisonment, if the person whose premises is searched is arrested and detained by the police.

Where a person by his complaint set the law in motion against another resulting in the illegal arrest and detention of that person, he will be liable to that person in court. Thus where a police officer searches a premises armed with a search warrant, the person who laid a complaint before the police officer (on the basis of which the police officer lays an information before a magistrate to obtain a search warrant) may render himself liable in damages to the person against whom the complaint is laid. The complainant would be held liable in damages for malicious procurement of a search warrant if he had no reasonable cause to believe in the complaint laid by him.

A complainant who set the law in motion against a person alleged to have committed an offence, may render himself liable in damages to the alleged offender for malicious prosecution. In Balogun v. Amubikahu (1989) 3 NWLR (Pt. 107) 18, the Supreme Court rejected the contention of the appellant and held that although the arrest and prosecution of the respondent were undertaken by the police, the real force behind the whole action was the appellant. It was the appellant who set the law in motion against the respondent by fabricating a criminal complaint which led to the arrest, detention and prosecution of the respondent.

The complainant’s liability would depend on whether there was an interposition of a judicial or quasi-judicial act between his complaint and the issuance of the search warrant. In Kuku v. Olushoga (1962) 1 All NLR 625, the appellate court on appeal held that the search warrant was grounded on information sworn to by the police officer and not the respondent. Therefore, the complaint of the respondent was interposed by the information sworn to by the police officer, as a result of which the search warrant and the arrest and detention attendant thereon, were judicial acts. The respondent could not be held liable in damage for them.

In Fowler v. Doherty Suit No. LD/13A/67, the trial court held that the defendant was not liable in damages because the issue of a search warrant is a judicial act interposed between the complaint made by the defendant and the issuance of the search warrant, made by the Magistrate. Thus the action for damages was dismissed. The Supreme Court however held on appeal that the defendant is liable on the ground that nothing incriminating was found in the appellant’s house and there was no reasonable cause for the defendant to suspect the appellant.

In Adefunmilayo v. Oduntan (1958) WRNLR 31, it was held by the appellate court in appeal that it is the duty of the police to investigate a matter upon receiving a complaint. Such investigation may or may not lead to an arrest. Where an arrest is effected, the person detained by the police cannot hold the complainant liable in damages for false imprisonment.

CONSTITUTIONAL SAFEGUARDS AVAILABLE DURING SEARCH AND ARREST

Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 provides for Right to personal liberty.
Section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999 states that every person shall be entitled to his personal liberty and no person shall be deprived of such liberty.
Section35(2) of the Constitution of the Federal Republic of Nigeria, 1999 states that a person shall have the right to remain silent or avoid answering a question until after consultation with a legal practitioner or any other person of his own choice.
Section35(3) of the Constitution of the Federal Republic of Nigeria, 1999 states that a person arrested shall be informed within 24 hours of the facts and grounds for his arrest or detention (in a language he understands).
Section 35(4) of the Constitution of the Federal Republic of Nigeria, 1999 states that a person arrested must be brought before a court of law within a reasonable time.
Section 35(6) of the Constitution of the Federal Republic of Nigeria, 1999 states that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.

KEYPOINTS

	SECTIONS	CASES	PRINCIPLES
36	Section 82 CPA		A summons may be issued or served on any day including a Sunday of Public Holiday.
37	Section 103 CPA Section 383 CPC		A summons, warrant or other process shall be not be invalidated by reason of the death of the issuing authority.
38	Section 96 CPA Section 70 CPC		If a person disobeys a summons, then a warrant may be issued.
39	Section 23 CPA	Ikonne v COP & Justice Wachukwu	No warrant shall be issued except the complaint is on oath.
40	Section 28(1) CPA Section 63 CPC		A warrant may be executed at any time and on any day including a Sunday or Public Holiday
41	Section 56(2)		A warrant of arrest shall remain in force until it is cancelled or it is executed.
42	Section 29 CPA Section 61 CPC		A warrant may be executed notwithstanding that it is not in possession at the time of the person executing the warrant.
43	Section 101 CPA Section 384 CPC		Irregularities in warrant of arrest not enough to nullify trial resulting therefrom.
44	Section 10 CPA Section 26 CPC		Power of the Police to arrest without warrant.
45	Section 12 CPA Section 28 (d)		Power of Private Persons to arrest without warrant
46	Section 13 CPA		Power of owner of property to arrest a person without warrant.
47	Section 90 CPA Section 52 CPC		Execution of summons outside jurisdiction by leaving duplicate of the summons on conspicuous part of the premises or adult member of his family.
48	Section 482 CPA		Execution of warrant outside State of Issue
49	Section 107 CPA Section 74 CPC		A Court or Magistrate of Peace may issue a search warrant
50	Section 28 Police Act		A Superior Police Officer may in certain circumstances issue a search warrant
51	Section 111 CPA		Search warrant to be executed between 5am and 6pm except extended.
52	Section 79 CPC		A woman in purdah to be allowed reasonable facility to withdraw
53	Section 112 CPA		Right of Police conducting search to demand free ingress and egress
54	Section 78 CPC		Right of person to whom the search warrant is addressed to call two reputable witnesses from the neighbourhood.
55	Section 6 CPA Section 44(3) CPC		Search of persons (Search of woman to be done by a woman).
56	Section 82 CPC		Search of woman to be done by a woman with strict regard to decency
57	Section 6 (1) CPA Search 44 (1) CPC		Search without warrant where a person is arrested or where a person is in an area where a search is being conducted and is reasonably suspected of concealing something.