By Eloghene Adaka, Esq.
It is a fairly common occurrence that, as a Nigerian, you have witnessed a search being conducted either on a person, place or thing, or a police officer has searched you. This article aims to give insight into what the law provides on the expected conduct in carrying out a search by the Nigerian police force.
WHAT IS A SEARCH
A search means the examination of a person’s body, premises or thing, which aims at obtaining evidence of the commission of a crime.
A search could be of
(a)person,
(b)premises
(C)thing.
However, this article shall focus on the search of premises by a police officer.
In searching for a person or a thing, a police officer may do so, with or without a search warrant, As it relates to premises, on the other hand, a premises can be seen as a house or building together with its land and outer buildings, and a search cannot be carried on a premises without a search warrant, as a search warrant MUST be tendered at the point of entry before a search can be conducted and while searching such premises, a police officer shall not violate the rights .shall not violate the human rights of persons found in the premises being searched.. Thus where a search is performed on a premises without a search warrant, it would be seen as unlawful and also a violation of a person’s right to privacy as provided under section 37 of the constitution.
Thus a search on premises MUST be conducted with a search warrant. There are, however, exceptional circumstances where a search on a premises can be conducted without a warrant .and these exceptions include
- Arrest purposes – in instances where a police officer acting under a warrant of arrest or otherwise having authority to arrest a person has reason to believe that the person to be arrested has entered into or is within any premises, the police officer can enter into the premises to search for the person to be arrested, even though he has no search warrant.
- Drugs – a police officer or an officer of the Nigerian Drug law enforcement can, in order to recover drugs kept in a premises, enter and search such premises without a search warrant – as provided under S. 32 NDLEA Act
- As provided under section 147 of CEMA, a customs officer may enter or break into a place where he reasonably believes that illegally imported drugs are kept without a search warrant
- Where there is a reasonable belief that a government property is being unlawfully harboured, The Nigerian Security and Civil Defence Corp do not need a search warrant to enter such premises to conduct a search COMMANDANT GENERAL NSCD & ANOR V. EMASON UKPEYE, S. 3(1) – (3) Nigerian Security and Civil Defence( Amendment) Act 2001.
- Where a justice of peace is present, he may direct that a search on a premises be conducted in his presence ( as his presence can equal to a search warrant )
- Where a court has ordered for the release of an unlawfully abducted person , a search can be conducted on a premises without a warrant
- A search warrant can also be made done of where there is a warrant of arrest, as a Warrant of arrest comes with an implied authority to conduct a search upon whom arrest is to be conducted.
From the above, it has been established that a search without a warrant would be a violation of one’s right to privacy. However, in situations where a search warrant has been tendered in carrying out a search, the next step would be to examine if such warrant is from the proper person who has the power to issue a search warrant. There are four categories of persons who can issue a search warrant, and they include
(i) Magistrate,
(ii) Judge,
(iii) Justice of the Peace, and
(iv) Superior Police Officer above the rank of a Cadet ASP, subject to some restriction- as provided under section 28(3) Police Act, a superior police officer (a police officer above the rank of an ASP) can only issue a search warrant, in search of a stolen property where the premises to be searched is, or within the preceding twelve (12) months has been in the occupation of any person who has been convicted of: Receiving stolen property, Harbouring thieves, Any offence relating to fraud or dishonesty and punishable by imprisonment
On-demand by a police officer or other person executing the search warrant, a person in occupation of a premises to be searched must give free access (free ingress and egress) and afford all reasonable facilities for the search. See section 109(1) ACJL;section 149(1) ACJA. However, if the person in occupation refuses to grant free access (free ingress and egress), the police officer has the right to break into the premises to conduct the search and break out. See section 109(2) ACJL; section 112(2) CPL
Liability for wrongful procuration of a search warrant.
Where a complaint is made recklessly or without a reasonable course for the procuration of a search warrant, such a person who made such a complaint can be held liable in damages for the malicious prosecution of a search warrant, FOWLER V. DOHERTY J.I.C.
