Stop-And-Search By Police Is Illegal Without Search Warrant
Maintaining law and order in a society is sine qua non to an enduring democracy and sustenance of the rule of law. The security agencies are authorised by law to detect, prevent and prosecute persons who have committed infractions against the criminal laws of the country. The Police Act, 2020, empowers the police to search any person if there is a reasonable ground that an offence has been committed or reasonably suspected to have been committed or will be committed. However, the provisions of section 37 of the Constitution provides that the “privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications are hereby guaranteed and protected”. Also section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 provides that all persons charged with criminal offence are presumed innocent until otherwise proven guilty by a competent court of law.
Therefore, the security agencies and their personnel cannot enter any premises to conduct a search or search a person’s phones, laptops or bags without a search warrant. See Administration of Criminal Justice Act, 2015.
Sections 143-157 of the ACJA prescribe the process and procedure for applying and executing search warrants on any person, property or place in Nigeria. The Act requires that there must be a pending investigation and an application must be made to a court or Justice of the Peace within the jurisdictions where the search warrant is to be executed. The application must be made in writing and accompanied by an affidavit or statement on oath showing that there are reasonable grounds for believing that there is in any building, ship, carriage, motor vehicle, aircraft or place anything in respect of which an offence has been committed or is suspected to have been committed, or where there is a suspicion that the place or object is being prepared to commit an offence. The suspicion in this respect must be real and compelling.
The Court or JP may issue the search warrant if satisfied with the grounds stated and authorize an officer of the court, police officer or any other person named on the warrant to execute the search warrant by entering the place or property and seize any such thing until further trial proceedings before the court issuing the search warrant or any other court. The warrant may specify that the occupier of the house or place be arrested where incriminating items were found. However, if no complaint is made against the person arrested, the court shall immediately discharge him. Section 144(1) & (2) ACJA.
By section 148 of the ACJA a search warrant may be issued and executed at any time on any day, including a Sunday or public holiday. Section 149(3) ACJA makes it mandatory that if the suspect is a woman, only another woman may search her. All searches must be made in the presence of two witnesses and the person to whom the search warrant is directed may also provide a witness of his own. Section 149(3) ACJA. It is always advisable and safer that suspects requests to search the persons that want to search him or his abode. This is to avoid incriminating items being planted on his body or in his house.
The law also requires that all items seized shall be written and signed by the suspect, the person executing the search warrant and their witnesses, and a copy of the signed list be availed the suspect that was searched. It is his right to have a copy of the inventory (Section 149(5) & 150 ACJA). However, confrontations with security personnel must be avoided if they refuse to accord the person being searched his rights under the law. Obey and lodge a complaint later.
The recent case of the execution of a search warrant on the residence of Honorable Justice Mary Peter-Odili (JSC) violently violated all the prescribed protocols for the issuance and execution of search warrant. Any victim of a search without warrant or purported execution of an illegal search warrant may seek legal remedies in a court for the invasion/violation of his fundamental right to privacy of his person and homes (section 37 of the Constitution), right to personal liberty(section 35 of the Constitution), trespass to property and unlawful detention. Criminal proceedings may also lie in criminal trespass and breach of the public peace, depending in the facts of the case.
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The views/opinions expressed in this publication are those of the authors and do not purport to represent the views/opinions of The Metro Lawyer (TML), its affiliates or any of its staff.