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22 Jan

CRIMINAL LITIGATION WEEK 5 (SEARCHES, ARRESTS AND WARRANTS)

WEEK 5

SEARCHES, ARRESTS AND CONSTITUTIONAL RIGHTS.

An accused’s presence may be secured through:”

  1. Summons.
  2. Arrest with Warrant.
  3. Arrest without Warrant. Section 113 ACJA.

:: ISSUE OF CRIMINAL SUMMONS: 79-94 ACJL, Section 79 ACJL The magistrate or judge (justice of peace for the North) usually issues a summons against a suspect (directing him to appear in court within 48 hours of service of the summons) after receiving a complaint[1] against him (usually with regards to minor offences and where he is not likely to evade the court)-Ikonne v The COP. See Section 80 CPL. The summons should (in writing signed[2] by the judge, magistrate or justice of peace in duplicate) state the substance of the complaint, name of the accused, date of issue.

:: EXECUTION OF CRIMINAL SUMMONS: The summons should be served (by police, bailiff or sheriff) personally on the person summoned (on any day… between 8-6 in Lagos) who should acknowledge receipt by signing at the back of the duplicate[3] (this is proof of service). Alternatively, it could be served in the presence of a witness. Substituted service (like leaving in conspicuous part of premises, service on adult male member, etc.) can be effected with leave of the court (leave for cpc only?) an affidavit showing why and how substituted service was effected should be sworn-52 CPC. In the south, it appears that the server would simply write the details of delivery on the back of the duplicate. Where outside jurisdiction, ex-parte leave of court is sought and a copy of the summons is sent to the court in whose jurisdiction the accused is and the court shall direct service as if it had issued the summons.

Note that summons is not invalidated by reason of issuer dying, ceasing to hold office or no longer having jurisdiction.

:: ARREST Holgate Mohammed v Duke 1-6 of ACJL, CPL, 7 ACJA. May actually touch or confine the body of the person arrested unless there is express or implied submission to custody. Handcuffing would be unnecessary except there is reasonable apprehension of violence, attempt to escape or restraint is necessary for the safety of the person arrested.

He should be informed of the reason for arrest except he is in actual course of committing a crime or escaping from lawful custody.

:: ISSUE OF WARRANT OF ARREST: Section 22-29 ACJL and CPC. It is an authority in writing issued on any date by a Judge, Magistrate or Justice of Peace[4] (upon a complaint on oath) directing a named person (usually police) to arrest a named offender/accused. Ikonne v The COP. In addition, should bear date of issue, contain necessary particulars and be signed by the issuing judge or magistrate. Usually utilised where; – summons is disobeyed; – Offence is serious; – Statute requires[5] warrant to arrest unless offender is caught committing the offence.

:: EXECUTION OF A WARRANT OF ARREST: it can be issued and executed on any date and time including Sunday or public holiday. Cannot be executed in a sitting court or legislature. In the latter scenario, the permission of the president or speaker can be gotten. See the Legislative Houses (Powers and Privileges) Act 1958, Tony Momoh v Senate of the National Assembly.

The warrant should be shown to the person being arrested before execution except there are good reasons not to/preventing display[6]. Then he should be shown as soon as possible (in Lagos; 24 hours).

Upon arrest, he should be taken forthwith to the court that issued it except an endorsement at the back authorises his release upon complying with certain conditions (note the conditions).

The Warrant remains in force until executed or cancelled by any Judge or Magistrate-29 ACJL, 31 CPA.

In ACJA and CPC (North), where the accused is concealing himself or absconding from service of a warrant on him, the judge may publish a Public Summons in writing requiring the person to appear at a specified place and time not less than 30 days from the date of publishing-Section 61 No such in CPL and ACJL (South).

If the warrant is to be executed outside the state of issue (482 and 484 CPL); The executing (police) officer will take the warrant to the court in the executing state for endorsement by appropriate magistrate or judge who (does not endorse as a matter of course but) must be satisfied that: – endorsing will not be an abuse of legal process; – that the named (issuing) judge or magistrate is in court of competent jurisdiction; and that the offence stated in the warrant is known to the law of the issuing state C.O.P v Apampa. After endorsement, the police officer is to bring the named person before the magistrate that endorsed it. The magistrate may then order that the person arrested be taken to the court that issued the warrant originally Metropolitan C.O.P v Hammond. COP v Apampa OR admit the person to bail if offence is bailable. If the offence is unknown to the law of the issuing state, the judge will order the release of the suspect. Evidence may be given in all these. If dissatisfied, the person arrested may appeal to the Judge of the HC for review of the order. Non–endorsed warrant makes arrest unlawful and an irregularity in procedure but does not vitiate proceedings unless justice was denied Mataradonna v State. In fact, irregularity in apprehension of accused does not destroy proceeding-Section 101 CPL. Maybe liability in civil damage. Section 35(6) CFRN provides that the suspect shall be entitled to compensation and public apology from the appropriate authority where he is unlawfully arrested. He may apply for Habeas Corpus-Ransome Kuti v AG Federation. May apply for bail pending trial-Abacha v Fawehinmi, Abiola v FRN. Section 46 of the 1999 Constitution, Order II FHREPRules, Article 2 and 6 African Charter HPR can also be petitioned to ensure his release.

Note that if the warrant is issued by the FHC, there is no need for endorsement as FHC has only one jurisdiction.

(Just note that 22-28 ACJL and CPC are instructive on all of warrant).

:: ARREST WITHOUT WARRANT Section 10-15 CPL and ACJL: The police, Magistrate, Justice of Peace, Judge or even a private person may arrest without a warrant in certain instances.

The Police: See Section 4, 24 and 25 PA, 10 and 11 CPC, CPA and ACJL. Liability for false imprisonment may not arise but the police should exercise their power to arrest in good faith-Wednesbury Principles. Holgate Mohammed v The Duke.

Magistrate, Justice of Peace, Judge: where a person commits an offence in his presence within his district especially if he would have issued a warrant of arrest if a complaint in that regard were made. He shall commit the offender to custody or grant him bail.

Private Persons: can if the person commits an indictable offence in his presence or he reasonably suspects the person to have committed a felony (any time) or a misdemeanour (at night)- 12 CPA

A person arrested should be taken to the nearest police station (if private person; take the arrested to a police officer or station which would re-arrest) and be given reasonable facilities to obtain legal advice and take steps to furnish bail… constitutional safeguards also to be complied with.

The police is to bring the accused to a court with jurisdiction within 24 hours (or 48 hours) if nearest court is beyond 40km radius. Section 35(5) CFRN If this is not practicable, he should be granted bail upon entering recognizance (to appear at required time) with or without sureties. Police cannot grant bail for capital offences or offences of a serious nature.

:: SEARCH OF PERSON: Police and other law enforcement agents can search the body of a person-Section 29 PA, 44 CPC. Scientific/Medical evidence examination can be used-11 ACJA. Search of a woman should be by another woman-Section 6 CPA, 44 CPC, 4 ACJL. Lagos adds; with strict regard to decency-Section 5 ACJL.

:: SEARCH OF THINGS: police Section 4 PA, Customs Officers can search anything liable to forfeiture-44 PA, 131 Customs Excise Management Act.

:: SEARCH OF PREMISES (ISSUE AND EXECUTION OF SEARCH WARRANT): A written search warrant should be procured (on oath) from a Judge, Magistrate or Justice of Peace[7] (who signs it) to search premises which can be executed on any day including Sunday and Public holiday-(5am-8pm) or other time specified in the warrant-111 CPA) Musa Sadau v The State. 107 CPA. The Search warrant remains in force until executed or cancelled by the court that issued it. Note Section 39 CFRN, Elias v Pasmore.

No need for warrant where the police officer has arrest warrant and the person to be arrested is in (or entered into) the premises in question or; where a Justice of Peace directs a search of premises (over which he can issue warrant) to be made in his presence. Other instances see 147 CEMA, 32 NDLEA Act.

A woman in purdah[8] who is not the one to be searched should be told that she can (and be given reasonable opportunity to) withdraw before the execution of the search warrant.

Generally, only items specified/envisaged in the search warrant can be seized. However other items (reasonably suspected to be stolen or relevant in respect of other offences) can be seized.

Search should be in the presence of the two adults in the neighbourhood. Officers should be searched by the occupants before they conduct the search to prevent planting incriminating evidence.

Power to Search includes power to arrest occupant and reasonably seize relevant (usually incriminating) materials or documents.

:: ADMISSIBILITY OF MATERIALS OBTAINED IN THE COURSE OF UNLAWFUL SEARCH: Section 14 relevant material evidence obtained can be admitted at the discretion of the court which would be judiciously exercised considering the facts and certain circumstances listed in Section 15 EA.

:: CONSTITUTIONAL SAFEGUARDS: Discussed Later.

:: PROCEDURE FOR CHALLENGING SEARCHES AND ARRESTS

Non-compliance renders search unlawful but trial/instigation would NOT be vitiated/nullified. However, non-compliance is good ground for resisting search-Onuorah v COP and the accused/searched may sue for; – Damages for trespass to property-Elias v Passmore; – Damages for malicious procurement of a search warrant without reasonable cause-Balogun v Amubikahu.

:: DRAFT SUMMONS, SEARCH WARRANT AND WARRANT OF ARREST: Check the Drafts Edition.

 

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[1] Get definition of complaint from 1 and 2 cpc and cpl.

[2] A rubber stamp may suffice-Goodman v Evans.

[3] Refusal to sign may ground detention or committal to prison for 14 days

[4] No police officer can issue warrant of arrest.

[5] Note however that an arrest without warrant may not vitiate proceedings.

[6] No need to intimate where the suspect is found committing, being pursued after committing or escaping lawful custody.

[7] A person above the rank of a Cadet Assistant Superintendent of Police can issue search warrant for permises which is (or has been within the preceding one year) in occupation of any person convicted of receiving stolen property or harbouring thieves or of any offence involving fraud or dishonesty and pubishable by imprisonment-28 PA.

[8] I.e. doesn’t appear in public

Isochukwu

Quite eccentric really

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