CRIMINAL LITIGATION

UNIT 2

  • SEARCHES
  • ARRESTS
  • SUMMONS

SEARCHES

In Nigeria, the legal framework governing searches primarily derives from the constitution of the federal republic of Nigeria, 1999 (as amended), the administration of criminal justice act (ACJA), 2015, and the Nigerian police act, 2020. These laws establish the guidelines and procedures that law enforcement officers must follow when conducting searches, ensuring that citizens' rights are protected while enabling the police to perform their duties effectively. The constitution guarantees the right to privacy under section 37 which includes protection from unlawful searches of a person's home, property, correspondence, or communications and any search conducted without due process or legal authority may be deemed a violation of this constitutional right. See the case of Ogundeji v. State (2017) LPELR-42595(CA), where the court of appeal emphasized the importance of following due process in conducting searches, particularly with respect to obtaining a valid search warrant. The court held that evidence obtained through an unlawful search could be excluded from trial. Under section 9 of the ACJA, a search warrant is generally required to conduct a search. However, there are exceptions where law enforcement officers may conduct a search without a warrant. These include situations where the officer believes that obtaining a warrant would defeat the purpose of the search, such as in cases of urgent and immediate danger or if evidence might be destroyed.


  1. Search warrants: A search warrant is a legal document issued by a magistrate or judge authorizing law enforcement officers to search a specific place for evidence related to a crime. See section 143 of the ACJA which outlines the procedure for issuing a search warrant, which includes a detailed description of the place to be searched and the items sought. A search warrant must be executed within a specified time, usually not exceeding seven days from its issuance, as stipulated in section 148 of the ACJA.
  2. Search without warrant: Under certain circumstances, a search may be conducted without a warrant. See section 49 of the Nigerian police act which allows for a search without a warrant when a police officer has reasonable grounds to believe that a person is in possession of stolen property, dangerous weapons, or items related to a crime. However, such searches must be conducted in accordance with the law to ensure they do not infringe on the individual's rights.
  3. Search of a person: The ACJA provides specific guidelines for the search of a person. See section 5 of the act which states that when a person is lawfully arrested, the police officer or any person making the arrest may search the person and take possession of any incriminating item found on them. The search must be conducted with respect for the dignity of the individual, and the person being searched has the right to be present during the search.

ARRESTS

Arrests in Nigeria are governed by the ACJA, the Nigerian police act, and the constitution. The primary purpose of an arrest is to ensure that a suspect appears in court to face charges. The legal authority to arrest without a warrant is detailed in section 18 of the Nigerian police act, while the process for arrest with a warrant is provided in sections 3 to 8 of the ACJA.


  1. Arrest with a warrant: A warrant of arrest is a legal order issued by a magistrate or judge directing the arrest of a person suspected of committing a crime. See section 36 of the ACJA which provides that a warrant must specify the name or description of the person to be arrested, the offense they are suspected of committing, and be directed to a specific law enforcement officer or agency.
  2. Arrest without a warrant: See section 18 of the Nigerian police act which provides for the circumstances under which a police officer may arrest a person without a warrant. These include situations where the person is caught in the act of committing an offense (in flagrante delicto), where the officer has reasonable grounds to suspect that the person has committed a felony or is about to commit an offense, or where the person obstructs a police officer in the execution of their duties.
  3. Rights of the arrested person: Upon arrest, an individual has several rights as guaranteed by the constitution and statutory law. See section 35 of the constitution which provides the right to remain silent and the right to be informed of the reason for the arrest in a language they understand. The person also has the right to consult with a legal practitioner of their choice and the right to be brought before a court within a reasonable time, typically within 24 to 48 hours, as stipulated in section 35(5) of the constitution.
  4. Use of force in arrest: The use of force during an arrest is regulated by law. See section 261 of the ACJA which permits the use of reasonable force to effect an arrest if the suspect resists or attempts to flee. However, the force used must be proportional to the circumstances and should not be excessive. See the case of Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) 444, where the supreme court held that excessive use of force by the police during an arrest is unlawful and can give rise to a claim for damages.

SUMMONS

A summons is a legal document issued by a court directing a person to appear before it at a specified time and place to answer charges or provide evidence in a case. The issuance of summons is provided for under sections 113 to 120 of the ACJA. A summons can be issued in both criminal and civil proceedings, but in the context of criminal litigation, it is typically used to compel the attendance of a witness or an accused person who is not in custody.


  1. Service of summons: The summons must be served personally on the person to whom it is directed. See section 116 of the ACJA which outlines the procedure for serving a summons, including the requirement that the summons be read out to the person in a language they understand. Where personal service is not possible then section 117 allows for substituted service, where the summons is left at the person’s last known place of residence or business.
  2. Failure to comply with a summons: If a person fails to appear in court as directed by a summons, the court may issue a warrant for their arrest under section 119 of the ACJA. Additionally, the court may hold the person in contempt, which could result in fines or imprisonment. See the case of Nwigboke v. State (1986) 2 NWLR (Pt. 23) 483 which highlights the seriousness of failing to comply with a court summons, where the court emphasized that such actions undermine the authority of the judiciary and can attract severe penalties.
  3. Procedure for challenging a summons: A person who receives a summons may challenge its validity or the jurisdiction of the court that issued it. This can be done by filing a motion before the court to set aside the summons. The court will consider whether the summons was issued in accordance with the law and whether the person was properly served.

CONCLUSION

These notes provide an overview of the legal procedures and rights associated with searches, arrests, and summonses in Nigeria. The relevant statutes and case law serve as the foundation for ensuring that these processes are conducted lawfully, balancing the powers of law enforcement with the rights of individuals.