Awareness of Rights: Searches and Search Warrants in Nigeria

Big questions which are often asked in Nigeria include questions as to whether or not the Nigerian Police possess the rights to conduct Searches, the limit at which such rights extend to and the point at which a Police officer can be said to have violated such right and gone ultra vires.

A search is an examination of a person's body, vehicle, house, premises, aircraft or any other vessel, 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. A search may be that of a person's body or may be by way of a medical examination of the body of a person suspected of having committed crime, for instance, a DNA sample taken and examined by a qualified medical examiner.

The Nigerian Police do have the authority by virtue of the Police Act to search persons and premises.  In the course of executing a search warrant, the law states that a woman can only be searched by another woman, it is prohibited by law for a man to search the body of a woman though no rule states that a woman  cannot search a man.  When searching premises, the search must be conducted in the presence of two respectable inhabitants of the neighborhood summoned by the person to whom the search warrant is addressed. It is lawful for a policeman to detain and search any person whom he reasonably suspects of having in his possession any stolen item.

It is mandatory that before a search warrant is executed, the warrant must be shown to the person to whom it is addressed and items found during a search are liable to be seized by the police. It should be noted that according to Nigerian law, any item illegally obtained by the police may still be admitted in court as evidence. A search is obviously from the above stated paragraphs very critical to a police investigation as it aids the Police in gathering intelligence which will help resolve the crime.

In Nigeria, a search warrant is not required to search a person. Section 6(1) Criminal Procedure Act (C.P.A), Section 44 Criminal Procedure Code (C.P.C) and Section 25 of the Police Act empowers a police officer to search any person who is arrested without warrant whom he reasonably suspects to be in possession of stolen articles, instrument of violence or poisonous substance, tools connected with the kind of offence which he is alleged to have committed, or other articles which may furnish evidence against him in regard to the offence which he is alleged to have committed.

The test to be used to decide whether the action of a police officer was reasonable in conducting a search of a person is the same test used by the courts to decide whether the conduct of the police officer was reasonable in effecting the arrest without a warrant of arrest. It is an objective test i.e. whether a reasonable man would have conducted the search of a person in the circumstances.

Any person arrested and detained in lawful custody may be subjected to a medical examination where such examination will afford evidence of commission of an offence. Persons suspected of concealing on their bodies hard drugs such as cocaine and heroin are subjected to medical examination in order to retrieve the drugs concealed on their person.

Powers to conduct a search are conferred by statute on other law enforcement agents; for example the Customs and Excise Management Act 1958 empowers officers of the Board of Custom and Excise 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.

Where the suspect is a woman, the search shall be done by a woman with strict regard to decency. The limitation that a woman may only be searched by another woman is restricted to the search of the body of the woman. It does not extend to anything appurtenant to the woman, such as a hand bag which is not part of her body.

Moving on,  it’s imperative that we cast our minds to the consequences which a “failed warrant” may bring about to the conducting police officer. A failed warrant may be in any of these two forms

1. After executing a search warrant, nothing incriminating is found in the house, the position of the law is that where a person by his complaint set the law in motion against another, he will be liable to that other person in tort. See Adefunmilayo v. Oduntan (1958) NNLR 32 and Fowler v. Doherty JI.C Taylor – Through the cases Lagos High Court Publication (1974). The test is whether or not the defendant set the law in motion against the plaintiff, for example where the complaint was laid directly to a judge or magistrate.

2. Where a person conducting a search is in breach of the procedure, for example search of premises without a warrant, a man searching a woman or a search conducted in the north without witnesses; in all these circumstances, evidence obtained during the search is illegally obtained. The law is that illegally obtained evidence is admissible on the ground that one cannot use technicality to prevent the admission of relevant evidence.

In Kuruma v. R (1955) All ER 236 at 239, the courts emphasised an exception to the above rule as regards illegally obtained involuntary confessions, obtained as a result of threat or inducement to an accused person by a person in authority, as this is inadmissible as evidence in court. The court stated that the rule is that a confession can only be admitted if it is voluntary. See section 29 Evidence Act.
In Musa v. The state (1968) NMLR 208, the Supreme Court cited with approval the observations of the Judicial Committee of the Privy Council in Kuruma v. R, and held that even if the procedure laid down in section 78(1) of the C.P.C 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.

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

As long as the police and other law enforcement officers are empowered to conduct investigations with respect to the commission of crimes, searches would always be necessary. It is however hoped that as law enforcement officers conduct these searches, they would always strive to comply with the law as non-compliance could result in the violation of the rights of suspects.

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