Week 3 &4 Sources of Criminal Procedure Laws

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SECTION 28 (d) CPCL

vi. Any person whom he is directed to arrest by a Justice of Peace or a Superior Police Officer.

vii. Any person who has escaped from his lawful custody

viii. Any person required to appear by public summons published under S. 67 CPCL.

ix. Any person who commits offence in his presence.

S.13 ACJL

x. Any person he finds damaging public property.


NB- NWEKE v. THE STATE- a private person can arrest without warrant any person whom he reasonably suspects of having committed a felony.
NB- a person who resists by force an attempt by a private person to arrest him in the exercise of his right cannot claim the benefit of self defence- Abdullahi v. Borno Native Authority
POST ARREST REQUIREMENT BY A PRIVATE PERSON

S14 CPL; s39 CPCL; s9 ACJL

a. He must proceed without unnecessary delay, to hand over the arrested person to a police officer.

b. Where not possible, the private person must take the arrested person to the nearest police station.

c. The Police Officer to whom the person is handed over must thereupon re-arrest the arrested person.

Where a private person arrests an offender without warrant and fails to hand over the arrested person to the police timely, he may be liable for damages for false imprisonment if unreasonable delay is established: Lewis v Tims (1952)

ASSISTANCE OF JUDICIAL OFFICERS BY PRIVATE PERSONS

Upon reasonable demand, every person is bound to assist a Judge, Magistrate or Police Officer in effecting an arrest or preventing the escape of any person whom such a Judge, Magistrate or Police Officer is authorised to arrest- S. 34 CPL

NB-Failure to so assist without reasonable excuse and knowledge is a misdemeanour punishable by imprisonment for one year
PROCEDURE FOR ARREST-

S.1 ACJL

S. 3 CPL

1. Inform the person unequivocally that he is under arrest.

2.TOUCH/CONFINE the person EXCEPT there is submission to custody by words or conduct

NOTE- Invitation to the police station is NOT an arrest- (person cannot be charged for resisting arrest- SADIQ v. THE STATE (1982) – thus mere words are not enough to make an arrest

3.The person arrested shall not BE subjected to unnecessary restraints such as handcuff, leg chain, beating or maltreating the person arrested unless the person wants to escape arrest, is violent or for his safety: s4 CPL; s37 CPCL; s2 ACJL; s34&35 CFRN 1999

4.Reasonable force may be used where necessary to overcome any attempt at resistance by the suspect.-S. 261 Criminal Code

NOTE-criminal liability for excessive use of force- R. v Ogunbodede (manslaughter).
NOTE-The Police Officer can use reasonable force to prevent the escape of a person suspected of having committed a felony (7YRS)

-S. 271 Criminal code: if offence is a capital offence (he can KILL).


EFFECT OF ILLEGALITY OR IRREGULARITY IN THE PROCESS OF ARREST

SECTIONS 101 CPL; s384 CPCL; S.98 ACJL

The defect will render the arrest unlawful but trial will be valid notwithstanding irregularity in issuance and conduct of arrest-


OKOTIE v COP (1959), STATE v. OSLER.

QUESTION

Mr obi was arrested by a police officer upon a warrant issued by the IGP and is brought before the court. He is objecting on the ground that the warrant was wrongly issued. Comment on the objection? Does he have any remedy?
NEW-A person cannot be arrested in LIEU of another person (LAGOS ONLY)-s.4 ACJL
B-SEARCHES

S.107 CPL; S.74 CPCL; S.104 ACJL; S29 Police Act
Search may be effected on persons, premises and things. This may be done with or without a warrant.
A-SEARCH OF PERSONS-


  • A search persons may be conducted WITH OR WITHOUT a search warrant

  • A police officer may detain and search any person whom he reasonably suspects of having in his possession or conveying in any manner anything which he has reason to believe to have been stolen or otherwise unlawfully obtained-

SECTION 29 POLICE ACT; SECTION 4 POLICE ACT

  • Usually done by policemen-

S.4 and 28 police Act.

  • Only a woman is to search the body of a woman

S. 6(2) CPL, S. 44(3) CPCL

  • EXCEPTION- a man can search a woman’s handbags, briefcases, wallet etc.

  • The search of the body of a woman by another woman must be done with strict regard to decency: S. 82 CPCL.

  • Person must be searched by persons of the SAME sex (LAGOS ONLY)-

S.5(2) ACJL with regard to dignity; S.34 CFRN 1999

  • Private persons with power to arrest may conduct searches-NWEKE V.STATE

A police man can carry out MEDICAL EXAMINATION for latent items as part of a search- S.6(6) CPL; S.127(1) &(2) CPCL; S.5(6) ACJL; FRN V. BABA SUWE

POWER OF SPECIAL PROSECUTORS TO CHARGE PERSONS WITHOUT WARRANT


  • NDLEA-(Concealment of drugs on a person)-

  • S.494) NDLEA ACT; ICPCL-(Proceeds of corruption)-



  • S. 5(1)CPORA and

  • Custom officials- s.133 CEMA.


B-SEARCH OF THINGS

  • A search of things may be conducted with or without a search warrant,

  • A police officer can search and stop vehicles on the road, vessels etc without a warrant- Karuma v. R (1955)

  • Powers of search of things without warrant is also conferred on customs officers, the Federal and State Task Forces of NAFDAC etc.


C-SEARCH OF PREMISES

Power to search a premises includes power to arrest a person found.



Generally, premises cannot be searched WITHOUT a SEARCH WARRANT
Contents of a search warrant are:

  1. Address of the premises to be searched;

  2. Items to be searched for;

  3. A directive that the items be seized and brought to court; and

  4. Signature of the person issuing it.

NB: S81(1) CPCL: the officer should first be searched before entering the premises

EXCEPTIONS WHERE SEARCH OF PREMISES CAN BE CONDUCTED WITHOUT WARRANT

  1. Where a person against whom a Warrant of Arrest has been issued is found in a premises: S. 7 (1) CPL/ACJL; S. 344(1) CPCL.

However, he may seek the permission of the person in charge or residing in such premises

  1. A justice of the peace may direct a search to be done in his presence-S.85 CPCL


  2. If the police or any other person who is executing a search warrant of premises reasonably suspects any person of concealing about his person, articles for which a search should be made, such a person shall be searched: S. 112(3) CPL, S. 81 CPCL.

  3. Where there is a complaint on oath as to an abducted person kept in the premises.

  4. A warrant of arrest comes with an implied authority to search person upon whom search is to be conducted.

  5. The Nigerian Security and Civil Defence Corp do not need a search warrant to enter a premise where there is a reasonable belief that government property is being unlawfully harboured

Commandant General NSCD & Anor v. Emason Ukpeye(Court of Appeal-2012)- S. 3(1) – (3) Nigerian Security and Civil Defence( Amendment) Act 2001.

  1. NDLEA officials can search any premises connected with a drug related offence- s.32 NDLEA ACT.

  2. Custom officers may enter and break into any Premises reasonably suspected to harbour illegal goods-S.147 CEMA


HOW CAN A SEA1RCH WARRANT BE EXECUTED

  1. Before a search warrant is executed, it must be shown to the person, or occupier or person in control of the thing.
  2. The body of the person who intends to conduct the search will then be searched by the person named in the warrant or occupier of things. [This is hardly obtainable].-MUSA SADAU V. STATE (1968)


  3. Where the apartment to be searched is occupied by a woman in purdah, the person making the search shall, before entering the apartment, notify the woman that she is at liberty to withdraw and shall afford her every facility for withdrawing.- Section 79 CPCL

  4. The search must be conducted in the presence of two respectable inhabitants of the neighbourhood to be summoned by the person to whom the warrant is addressed. This may be waived by the Justice of Peace – S. 78(1) CPCL(NORTH ONLY)

  5. RIGHT OF INGRESS AND EGRESS

Where the premises or thing to be searched is locked, the occupier shall on demand allow the Police Officer free entry – Ss. 112(2) CPL; S.109 ACJL. If free entry is denied, the Police Officer or other person executing the search warrant is authorised to use reasonable force to break in- S.7,8, 112 CPL; S.34(3) CPCL; S.8 ACJL. He is also authorised to break out if he is denied exit: Ss. 84 & 8 CPL

  1. In the course of the search, if the object is found, it is liable to seizure by the Police Officer executing the search warrant.- S. 107 CPL; S. 74, 76 CPCL.


MODES OF PROCURING A SEARCH WARRANT

SOUTH/LAGOS- upon information on Oath-

S.107 CPL; S.297 ACJL

NB- this is not needed in the NORTH
WHO CAN ISSUE A SEARCH WARRANT-

A search warrant may be issued for a specific premises or thing by;


  1. A Magistrate-S.109 CPL; S.74 CPCL


  2. A Judge- S.109 CPL; S.74 CPCL

  3. A Justice of the peace (NORTH ONLY)-S.74-76 CPCL

  4. A Superior Police Officer for this purpose ABOVE the rank of a CADET ASSISTANT SUPERINTENDENT OF POLICE-S.28(3) Police Act

NB- Every search warrant shall be SIGNED by the issuing authority- S. 111(2) CPL
WHEN CAN A POLICE OFFICER ISSUE A SEARCH WARRANT- SECTION 28 POLICE ACT

A Superior Police Officer (above Cadet ASP) can issue a search warrant ONLY in respect of premises in the following circumstances:

i. when the thing to be recovered from the premises searched is stolen property.

ii. where the premises have within the preceding twelve months been in occupation of any person who has been convicted of receiving stolen property or harbouring thieves.

iii. premises occupied by persons who committed any offence involving fraud or dishonesty and punishable by imprisonment.
S4 Police Act, Reynolds v COP for Metropolis (1985) seizing goods not specified in the warrant if reasonably suspected to be stolen or otherwise relevant, may be seized.

DAY/TIME OF ISSUE AND EXECUTION OF SEARCH WARRANT

A search warrant may be issued and executed on any day including Sundays or Public holidays. A search warrant shall be executed between the hours of 5am – 8pm


EXCEPTIONS where -the Issuing court authorises otherwise in order to meet the urgency of a particular situation e.g. smuggling vessels, brothel etc-Section 111 CPL
LIFESPAN OF A SEARCH WARRANT

A search warrant once issued remains valid and subsisting until it is executed or cancelled by the issuing authority – S. 109(2) CPL; S.106(2) ACJL

ADMISSIBILITY OF EVIDENCE OBTAINED IN THE COURSE OF UNLAWFUL EXECUTION OF A SEARCH WARRANT.

OLD POSITION-All evidence illegally obtained is admissible once it is RELEVANT to the fact in issue: R. v LEATHAM; Karuma v. R (1955); MUSA SADAU V. STATE (1968); R V.SENAT &SIN

Thus where a man carries out a search of the body of a woman, any evidence obtained, though illegally obtained, will be admissible once it is proved to be relevant to the case.


EXCEPTION- involuntary confessions- S.28 Evidence Act 2011
NEW POSITION- Under S.14 and 15 EA 2011, the court has the discretion to weigh the desirability of admitting such evidence against its undesirability. It will be admitted ONLY when tits desirability weighs higher on the imaginary scale
CIVIL LIABILITY FOR UNLAWFUL EXECUTION OF A SEARCH WARRANT

Irregularity in the execution of a search with or without warrant may attach to the person executing the search. Thus, he may be liable for damage in civil action.- ELIAS v. PASSMORE


LIABILITY FOR PROCURING SEARCH WARRANT

There is NO LIABILITY if the complaint was made in good faith. Where the complaint was made recklessly or without reasonable cause, there the complainant may be liable in damages for malicious procurement of a search warrant- Fowler v. Doherty J.I.C. Taylor


Where the complainant made a report, and a search warrant is issued and executed, he may not be liable in damages for false imprisonment, if the person whose premises is searched is arrested and detained by the Police: Kuku v. Olushoga; Adefumilayo v. Oduntan

A complainant who maliciously set the law in motion against a person alleged have committed an offence, may render himself liable in damages for malicious prosecution.- BALOGUN V. AMUBIKAHU

CONSTITUTIONAL SAFEGUARDS RELATING TOSEARCHES ,ARRESTS AND SUMMONS.

1. S. 33 right to life.



EXCEPTION- S. 33 (2)(B) – KILLING of a suspect may be justified; In order to effect a lawful arrest; Pursuit of suspect immediately after committing the offence and to prevent the escape of a person lawfully detained.

2. S. 34 Right to dignity of human person.

3. SECTION 35(1)- Right to personal liberty

However the exception under S. 35(1)(c) CFRN recognises the right to arrest a person under a warrant or on reasonable suspicion of his having committed an offence or to prevent commission of offence.

3. S. 35(2) CFRN 1999 (as Amended): Right to remain silent or avoid answering any question until after consultation with a Lawyer or person of his choice.

4. S. 35(3) Information in writing within 24 hours and in the language he understands of the facts and grounds for his arrest and detention.

5. S. 35 (4) charge the accused to court within a reasonable time. Reasonable time means a period of one day where a court is within 40km or a period of two days or longer where necessary in any other case – S. 35 (5)

6. S. 35(6) Public apology and compensation from the appropriate authority or person to a person who is unlawfully arrested or detained.

7. Section 36(5) CFRN: every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty

8. Section 36(6)(c): Every person charged with a criminal offence shall be entitled to defend himself in person or by, legal practitioners of his own choice

9. S. 37-Right to privacy of homes, correspondences, telephone conversations

EXCEPTION- .S. 45 CFRN-(S.37-41)

10. S. 41 CFRN 1999- Right to freedom of movement

EXCEPTION- Imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed an offence in order to prevent him from leaving Nigeria.

11. S. 44(1) No compulsory acquisition of property

Exception- can be done in the manner and for purposes prescribed by a law e.g. S. 44(2)(k) – temporary taking of possession of property for the purpose of any examination, investigation or enquiry


NB-Section 25 Anti Terrorism Act allows the IGP in cases of verifiable urgency to seal up premises while a search warrant is produced.

12. Right to legal aid: s3(1) –(3) ACJL:

See pg 52 Appendix 1 (Chief Dede scenario)


  • Muslim woman in purdah: s79 CPCL

  • Time he issued the search warrant (5am – 8pm) but he executed it at 11pm: s111 CPL even though no provision in the CPCL, it is applicable in Northern states

  • Mode of entry into the house: s8 CPL: he was not denied entry so no need to break the gate.

  • Searching body of a woman: s44(3) CPCL - woman should search a woman and even when a woman searches a woman, it must be done with regard to decency. Taking something from the bra is not with regard to decency

  • Unreasonable suspicion: Fowler v Doherty or malicious prosecution

  • S81(1) CPCL: the officer was not first searched before entering the premises.

  • 2 adults should have been present: s78(1) CPCL

  • Inspector is not above a Cadet ASP: s28 Police Act. Thus search warrant is not valid.

  • Constitutional right breached as she was detained for 3 days: s35(4) & s35(5) Constitution
  • Cannot handcuff her as she didn’t resist arrest: s4 CPL. However, if proved that ring was stolen, then she would be convicted even though an unlawful arrest. Should touch the person and inform the person that she is under arrest


  • Under Musa Sadau, the evidence if relevant is admissible but note s14 & 15 EA 2011

Constitutional safeguards

  • See above and other constitutional safeguards

  • The offence must be known to law

  • Section 36(5) CFRN

  • Right to personal liberty. Note the exception

  • Right to remain silent until after consulting with legal practitioner or anybody of his choice

  • S35(3) in writing and in the language he understands for reasons for arrest

  • S35(4). The reasonable time of 24hours or 48 hours does not apply to capital offences. Counsel for Ngaga bombing suspect is arguing for his release as Terrorism Act has not been amended to include the bombing as a capital offence

  • S35(5)

  • S37

  • S44(k): relating to the temporary taking of property for any examination, investigation or property

  • Right to be told of the right to free legal representation: Legal Aid Act. This is mandatory in Lagos State to be informed of this right

  • Commandant General, the Nigerian and Civil Defence Corps and another v Emerson Ukpeye [2012] (Ct of Appeal in Calabar) – man alleged to have vandalised some pipelines belonging to the government so his premises was searched.

Procedural safeguards: also mention ACJL

  • Section 27 Police Act

  • Section 28 & 29 Police Act: must bring the person to Ct within 24hours when someone is arrested

  • Judges Rules on caution
  • S4 CPL, s31 CPCL


  • Right to be informed of the offence by the police unless caught in the middle of the act or chased immediately after the act: s5 CPL; s38 CPCL

  • Woman to be searched by another woman: s44(3) CPCL, s6(2) CPL, s5 ACJL (done by person of the same sex)

  • Section 82 CPCL: woman to be searched with decency

  • Woman in purdah has a right to withdraw before a search warrant where the person is occupied is executed: s79 CPCL

  • In the North, 2 adults to be present when executing a search warrant

  • Summons: s67 CPCL: where a person has been issued a public summons, must be given 30 days to appear before that CT.

  • Any CT to issue the summons, must be a CT to that can try that offence

  • Not have been handcuffed unless violent, in your safety and resisting arrest

  • Also note police cannot enter the premises by force unless entry is denied and then police is allowed to break in and break out.

Summons (NB: in real life, a summons cannot be issued for possessing fake printing machines as this is a serious offence).

Pg 52 (Chief Dede Scenario)



  • In the High CT of Kaduna in the Kaduna Judicial Division

  • FHC/KB/01/2014

  • The State v Alhaji Atutuwa of No 5 Oduwole Street, Kaduna. In magistrate CT, it is Commissioner of Police v Alhaji Atutuwa
  • Being in unlawful possession of fake currency printing machine on (date) at No 5 Oduwole Street, Kaduna house


  • Justice Kobiko at High CT 2 on the 8th day of December 2014 at 9 o’clock dated this 5th day of December 2014

  • Signature/seal and date

Warrant of arrest

  • In the Magistrate Court of Kaduna State in the Kaduna Magisterial District holden at Kaduna

  • Commissioner of Police v Alhaji Atutuwa

  • To all police officers or Corporal Ado

  • Alhaji Atutuwa of No 5 Oduwole Street

  • Being in possession a fake currency printing machine on (Date) at No 5 Oduwole Street

  • Alhaji Atutuwa

  • 8th day of December 2014

  • Signature and seal

Search warrant (CAP)

  • In the Magistrates’ Court of Kaduna State in the Kaduna Magisterial District holden at Kaduna

  • To Corporal Ado and Corporal Ade

  • Whereas information upon oath….. House 5 Oduwole Street, Kaduna a fake currency printing machine

  • Governor’s name….. no 5 Oduwole Street, Kaduna

  • And also the said…..Alhaji Atutuwa

  • Issued at the Magistrate Court, Kaduna this 8th day of December 2014

  • Signature and seal

See sample drafts of search warrant, warrant of arrest and summons below:
I. Search warrant
IN THE HIGH COURT OF KADUNA STATE

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

CASE NO:

SEARCH WARRANT

To, Corporal Ado John or any other police officer.

Following the investigation of Alhaji Atutuwa of No. 5 Oduwole Street Kakuri Kaduna of being in possession of a fake currency printing machine on the compliant of Chief Dede made on the 8 of September 2011, you are therefore commanded to search the premises of the suspect, Alhaji Atutuwa and to bring any of the item related to the offence before the State High Court sitting at Kaduna forthwith to aid the trial of the case according to Law.
DATED THE …… DAY OF SEPTEMBER 2011

………………….


Judge of the High Court

Kaduna State


SUMMONS

IN THE HIGH COURT OF JUSTICE OF KADUNA STATE

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

CASE NO:

BETWEEN:
THE STATE ………………………. COMPLAINANT

VS.

ALHAJI ATUTUWA ……………….ACCUSED PERSON
SUMMONS TO ACCUSED
To: Alhaji Atutuwa of No. 5 Oduduwa Street Kakuri, Kaduna.
Complaint has been made this day by Chief Dede of No. 15 Oduwole Street Kakuri Kaduna that you on the 8 day of September 2011 at your residence aforesaid did have in your possession a Counter-feting currency printing machine contrary to S. 365 and 367 of the Penal Code or alternatively sections 1 and 2 of the Counterfeit Currency (Special Provision) Act.

You are therefore summoned to appear before the State High Court sitting at Kaduna on the 13 day of September 2011 at the Hour of 9 O’ Clock in the forenoon to answer the said complaint.


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