LEGAL EXECUTION OF SEARCH WARRANTS AND ILLEGALLY OBTAINED MATERIAL EVIDENCE ADMISSIBILITY

A search warrant constitutes the examination of a person’s body, apartment, premises, office areas, vehicles, aircraft and other such places by a police officer or other categories of law enforcement agencies for the purpose of finding evidence of crime with which to prosecute a suspect or an accused person in a court of competent jurisdiction. This search warrant is given in order to discharge the burden imposed on the prosecution of proving its case beyond reasonable doubt and this provision is captured under section 28 of the police act, section 44(3), 78, 79 and 127 of Criminal Procedure Code (CPC) and Section 150 (1) of the Customs and Excise Management Act.

THE GENERAL RULE IS THAT ANY EVIDENCE PROCURED WITHOUT A SEARCH WARRANT IS ILLEGALLY OBTAINED HOWEVER THERE EXISTS SOME EXCEPTIONS.

1.         Section 28 of the Police Act, Section 1 of the Criminal Procedure Act and Section 44 of the Criminal Procedure Code grant the authority to a Police officer to search the body of a suspect whwnever an arrest is madeespecially If the subject matter of the offence can be immediately found on him.

A search must be done not with an intent to injure or inflict bodily harm. The authority to issue a search warrant is vested in the Magistrate, Justice of peace. Of judge as contained under section 107.

WRONGFUL PROCUREMENT OF A SEARCH WARRANT

mgarba versus Maigoro(1992), Balogun Versus Amubikahu (1989), Ojo versus Lasisi (2003) and UAC Plc versus Sobodu(2006), the courts maintained that the complainant who set in motion investigation, arrest and prosecution of the accused person will be liable for civil liability arising from unlawful arrest, detention and prosecution. Therefore,  it is important that the complainant must be sure of the complaint brought to the police or law enforcement agent otherwise may end up paying huge compensation to the accused person if the prosecution fails to prove its case beyond reasonable doubt leading to  discharge and acquittal of the accused person.

Materials illegally or wrongly obtained in the cause of executing a search warrant are admissible in evidence during trial irrespective of how such evidence is obtained. The implication of this evidence rule is that even if material evidence was obtained by force or fraudulently or even by violating the rights of the accused person shall be admitted in evidence provided it is relevant to the prosecution. In Kuruma versus R, R versus Lecthan (1861), Musa Sadau & Another versus The State, the courts held that illegally obtained piece of evidence is admissible so long it has direct relevance to the case. Section 15 of the Evidence Act 2011 provides for circumstances which the court should consider before admitting piece of evidence obtained illegally or wrongfully. These include; the probative value of the evidence; the importance of the evidence in the proceedings; the nature of the relevant offence, cause of action of the defense and the nature of the subject-matter of the proceeding, the gravity of the impropriety or contravention; whether the impropriety or contravention was deliberate or reckless; whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention; and the difficulty, if any, of obtaining the evidence without propriety or contravention of law.

The above section has brought remarkable innovations into the admissibility of illegally and wrongly obtained material evidence in criminal litigation in Nigeria. It has put final paid to the era of impunity in pre-trail investigation process by stating conditions for which illegally obtained material evidence can be admissible.  In the English case of Elias versus Passmore (1934), it was held that a police officer who obtains evidence illegally may be liable in a civil action. The decision in State versus Sadau is no longer good law in Nigeria. The constitution also provided some rights of the accused person in police custody which has also curtailed the reckless obtaining of evidence in pre-trail process. These rights include; right to remain silent or avoid answering of questions from a police officer until he has consulted a legal practitioner of his own choice under section 35 (3) of the 1999 constitution (As Amended); The right to be informed in writing in the language he understands explaining the grounds of arrest or the nature of offence under Section 35 (2), right to be tried within a reason time under Section 35 (4) (5), right to fair hearing under Section 36 (1), et al.

The accused person also have the right to pubic apology upon a wrongful procurement of warrant of arrest leading to actual arrest and false imprisonment in violation of Section 35 of the 1999 constitution (As Amended). The Court decisions in Agbakoba versus SSS, Giwa versus the State, et al. Search warrants not properly obtained are generally illegal and police officers should ensure that only the authorities empowered to issue warrants are approached. It is trite that where a law enforcement agent in the course of carrying out his duties decides to execute a warrant in a manner inconsistent with laid down procedure or otherwise obtain evidence illegally, he or she will render himself or herself liable in a civil action as was decided in the English case of Elias versus Passmore.

Conclusion

The admissibility of illegally gotten evidence is founded on the notorious provision that relevancy determines admissibility. The law is clear as to the conditions to be considered before accepting illegally gotten evidence and these provisions will be useful in determining the probative value to be attached to such documents.